R v Benz

R v Benz - [1989] HCA 64 - HCA 1989 case summary — Zoe

[7]

It was the accused, who had been convicted at trial, who was responsible for bringing the case into the appellate courts. Whereas there is an easily-seen division between trial and appeal, the distinction between an appeal and an appeal from an appeal is less clear. Once the case is in the appellate hierarchy there is no logical reason why the matter should not be determined - assuming that the point involved is of sufficient importance to warrant the attention of the Court - by the very highest tribunal. There can be no surprise or unfairness; the accused simply takes the appellate structure as he finds it. If the House of Lords agrees with the Court of Criminal Appeal then the accused has no complaint; if it disagrees, then the accused is simply back in at least as good a position as he was before invoking the appellate process. In Davern v. Messel [20] Brennan J. and I referred to Friedland's comment with approval, after calling attention [17] to the observations of the majority in United States v. Wilson [18] in these terms: Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact. Gibbs C.J. (with whom Wilson and Dawson JJ. agreed) also drew a clear distinction between acquittal by a jury and acquittal by a Court of Criminal Appeal [19] . Brennan J. and I stated further [20] , in conformity with the comments already quoted from Bertrand : The exercise, on proper occasions, of the further appellate jurisdiction is important to ensure the due administration of justice in the individual case as well as for the general administration of the criminal law 1. (1984) 155 C.L.R., at p. 60. 2. (1984) 155 C.L.R., at p. 59. 3. (1975) 420 U.S., at p. 345. 4. (1984) 155 C.L.R., at pp. 34-40. 5. (1984) 155 C.L.R., at p. 60.

[35]

Even if it be assumed (in the Crown's favour) that evidence of the making of the particular statement was admissible in the particular circumstances of the present case as part of the res gestae, the judgment of the Court of Criminal Appeal does not contain any significant misstatement of principle in that regard. Their Honours simply did not advert to the possible admissibility of the statement as part of the res gestae of the offence. The explanation for that apparently lies in the way the case was argued. The question of the admissibility of the statement was not raised in the notices of appeal to the Court of Criminal Appeal. This Court was informed that counsel who appeared for the Crown in the Court of Criminal Appeal had neither anticipated that the question would be raised nor sought an adjournment when it was with the result that there was "no proper argument" of the matter. In these circumstances, it is difficult to see how it could properly be said that the question whether the statement was admissible in the circumstances as part of the res gestae raises any matter of general principle or general public importance of a kind which could justify the grant to the Crown of special leave to appeal to this Court. Moreover, there are positive reasons why special leave should be refused in the present case. For one thing, the Court is deprived of the benefit of any discussion by the Court of Criminal Appeal of the one question of principle which the Crown has suggested would be involved in the proposed appeal. For another, careful examination of the reasons for judgment of the Court of Criminal Appeal discloses that it is likely that their Honours would have concluded that the respondents' convictions must be set aside even if the question whether the particular statement was admissible as part of the res gestae had been properly argued in that Court and resolved in the Crown's favour. To demonstrate that that is so, it is necessary that I set out at length what seem to me to be the critical passages in the judgment of Kneipp J. (with whom Kelly S.P.J. and Demack J. agreed). Those passages read as follows:

[47]

Presumably, the jury accepted that the two persons whom Mr. Saunders saw on the bridge were the persons responsible for killing Mr. Taber. Indeed, unless that is so, it is difficult to see that there was any evidence at all that Miss Benz was an active participant in the killing. Mr. Saunders' descriptions of those two persons indicated that, to use Kneipp J.'s word, they "could" have been the respondents in that there was no significant inconsistency between the descriptions and the appearance of the respondents as adjusted by Mr. Bladen's evidence about the changes in Mrs. Murray's appearance. In a context where the jury were being implicitly asked to fit the descriptions of the persons on the bridge to their own visual observation of the respondents, the members of the Court of Criminal Appeal concluded that it was necessary that the jury be warned about the danger which could be involved in using Mr. Saunders' descriptions as of themselves founding an "identification" (by the jurors) of the respondents as the two persons whom Mr. Saunders saw on the bridge. There are strong reasons supporting that conclusion. Plainly enough, a warning to the jury about the possible dangers involved in their taking the step from description to "identification" of the respondents as the persons on the bridge would have been desirable even if Mr. Saunders' descriptions had been detailed and precise. In circumstances where those descriptions were so vague that they could apply to a limitless number of persons and where the prosecution had led evidence for the purpose of adjusting the description to fit the accused, there is obviously great force in their Honours' view that such a warning was essential. It is true that, as has been said, neither the evidence of Mr. Saunders nor the evidence of Mr. Bladen was identification evidence in the strict sense. That is, however, beside the point. Indeed, the danger of a miscarriage which would be involved if the jurors themselves took the positive step to "identification" on the basis of Mr. Saunders' and Mr. Bladen's descriptions would arguably be much greater than the danger which would have been involved if Mr. Saunders, who had actually seen the two persons on the bridge, had himself been prepared to take that step in his evidence and the jury had acted on what he said.

[48]

In the absence of an applicable rule making the giving of a particular kind of warning or caution mandatory in a particular category of case, it is not part of the function of an appellate court to substitute its own views of what directions were desirable in the circumstances of a particular case for those of the trial judge. An appellate court will commonly be ignorant of the atmosphere of the trial, the contents of counsel's addresses to the jury which precede the trial judge's summing up and the true forensic issues. Its essential function is to intervene to prevent possible miscarriage of justice. When complaint is made of the absence of a particular warning, caution or direction, the ultimate task of a member of an appellate court is not to determine whether he or she would have thought that the relevant warning, caution or direction was desirable in the particular circumstances of the case. It is to determine whether, viewed in the context of the summing up as a whole and of any other specific or general valid criticisms of it, the effect of the absence of the relevant warning, caution or direction is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory. The passages which I have extracted from the judgment of Kneipp J. (above) effectively address that ultimate question. They seem to me to indicate that the members of the Court of Criminal Appeal would have answered it in the affirmative and set aside the convictions of the respondents as unsafe and unsatisfactory even if they had been of the view that the statement made to Mr. Saunders was admissible. Acceptance of the admissibility of that statement would have been unlikely to have affected their Honours' view that "the only conclusions" which could legitimately be drawn from the evidence of Mr. Saunders "were that the two women could have been the appellants, and the vehicle could have been the vehicle from Fifteenth Avenue". In particular, the last of the paragraphs extracted from Kneipp J.'s judgment clearly suggests that the "serious risk" arising from the absence of what the Court of Criminal Appeal saw as a necessary warning would have been seen by their Honours as of itself requiring that the respondents' convictions be set aside even if their Honours had not considered that that risk had been "accentuated" by an "inadmissible statement".

[87]

Mrs. Murray told the police that after the visitors left she and the deceased ate a meal of chicken and vegetables which he had brought home. It was open to the jury to conclude, as the result of evidence concerning a post-mortem examination of the deceased's stomach, that he must have died or been rendered unconscious within two hours of eating his evening meal. Mrs. Murray told the police that after her daughter went out "to get cigarettes or just go for a walk or something" she did not see her again until the morning. She said that she and the deceased went to bed about 9.30 p.m., but got up and watched "that Shogun movie". They went back to bed about 10.30 p.m. She said that the deceased woke her about 4.00 a.m. He was dressed and said that he was going to work. He then left. Mrs. Murray said that none of the food from the night before was left and that the deceased did not usually have breakfast when he left for work at an early hour. She said that she went back to sleep but was awakened by the ringing of the telephone. A male voice asked, "Has Ron left yet?" She replied that he had. She then got up to go and find the deceased. Among the vehicles kept at Fifteenth Avenue was a "one ton ute", usually driven by the deceased, as well as the blue Laser hatchback, usually driven by Mrs. Murray. The Laser was not there, so she took the utility. Mrs. Murray suggested that the deceased took the Laser and that the reason he did so was that the utility was low on petrol. A witness who was staying at premises opposite saw the utility driven away from the deceased's home at about 4.15 a.m. but she had been unable to identify the driver. Mrs. Murray told the police that she had been unable to find the deceased. When she returned home, she "put a load of washing on". She also spoke to her daughter. About "8 or 8.30" she and her daughter went to the Coolangatta airport to book Miss Benz's flight back to Sydney. Later that morning she drove her daughter back to the airport. Mrs. Murray said that she made many attempts to contact the deceased during the day but was unsuccessful. Later that night she went to a police station to see if he had been involved in an accident.

[89]

A carpet layer gave evidence that in May 1987 he had carpeted the main bedroom by laying a single piece of carpet from which a square piece was cut out to allow for a bed base. He also gave evidence that on 11 September 1987 he had carpeted the two flights of stairs and landing which connected the first and second floors. He completed this work about 3.30 p.m. on that day. However, a painter testified that, when he arrived at the premises at 7.15 a.m. on the following morning, there was no carpet on the landing or the top flight of stairs. Four other witnesses also gave evidence that on 13 September there was no carpeting on the top flight of stairs or the landing. When police officers later examined the carpet in the bedroom, they found that the carpet on one side of the bed was no longer part of a single piece and that part of it had been replaced with a section of carpet taken from the top flight of stairs. Moreover, it was open to the jury to find that the replacement work had been done in a rough and amateurish manner. Thus, it was open to the jury to find that, during the night of 11-12 September 1987, someone had removed a section of the bedroom carpet and replaced it in a rough and amateurish manner with a section of carpet taken from the top flight of stairs. When asked by police officers who had removed the carpet from the stairway, Mrs. Murray said that it could have been the deceased or a painter. She did not assert that she had seen the deceased replace the carpet in the bedroom. However, she suggested that the deceased became irritated with defective workmanship and that he may have removed the bedroom carpet. No suggestion was proffered as to why he should have waited four months to remove the carpet or why he should have been content to replace work, professionally done, with rough and amateurish work. Moreover, a painter gave evidence that, about 7.20 a.m. on 12 September 1987, he noticed that there was carpet on the lower steps but not on "the second set of steps". When he asked Mrs. Murray when the carpeting would be finished, she said, "They should be here today".

At a glance

Court

Decision date

Before

Source

Judgment (104 paragraphs)

Parties