Willers v The Queen P1/1997 [1997] HCATrans 327 (20 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P1 of 1997

B e t w e e n -

RAYMOND WILLERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 20 OCTOBER 1997, AT 3.55 PM

Copyright in the High Court of Australia

MR L.W. ROBERTS-SMITH, QC: If your Honours please, with MS J PENNY I appear for the applicant of this matter (instructed by Quigley Coulson).

MR J.R. McKECHNIE, QC: If your Honours please, I appear with MS G.A. ARCHER for the respondent (instructed by the Director of Public Prosecutions (Western Australia)).

TOOHEY J: Yes, Mr Roberts-Smith.

MR ROBERTS-SMITH: Your Honours, it is common ground that the testimony of Sergeant John Arnold, on which Inspector Ray Willers was convicted of attempting to pervert the course of justice, was uncorroborated in this case. The Court of Criminal Appeal, indeed, had expressly noted at page 78, lines 8 to 16, that there was no corroboration and, indeed, his Honour Justice Franklyn in so finding made the observation that for that reason of itself, there would be little point in the trial judge directing the jury to look for corroboration and then pointing out to them that there was none to be found.

HAYNE J: Why was Arnold's evidence open to requiring a special warning to the jury? He had stood his trial and been acquitted, had he not?

MR ROBERTS-SMITH: He had been. But on any view and, indeed, on Arnold's own evidence, he was a man who was very much involved with the commission, on the Crown case, of Willers' offence in a practical sense or otherwise was a participant in it. Indeed, if one can look at it in these terms, it was Arnold, on the Crown case, who actually did the mechanics of what, in the end, amounted to, on the Crown case, that attempt to pervert the course of justice by having a charge against Willers' son reduced and dealt with in a different way.

The point your Honour raises as to the charge against Sergeant Arnold earlier being heard and resulting in an acquittal in respect of him was, of course, one of the bases upon which the Court of Criminal Appeal, and particularly Justice Franklyn, took the view that he was, therefore, not a person who required a special warning, or a particular warning from the trial judge to the jury.

HAYNE J: Against what would the jury have been warned?

MR ROBERTS-SMITH: The sort of warning, in our submission, which was required in this case was a warning that emphasised, or at least pointed out, that Sergeant Arnold was a person, because of his involvement in the mechanics of that, who, therefore, had a reason - or the jury, perhaps to put it more accurately, might conclude may have a reason to protect his own interests and to do so in a way which would be adverse to, and inculpate or incriminate Inspector Willers. That is, in broad terms, the basis of it.

The fact that he was acquitted, although not specifically here raised as a special leave point, nonetheless in our respectful submission, would involve in the course of argument, should special leave to appeal be granted, would be likely to involve a very real consideration of the extent to which an acquittal of a witness, as opposed to an acquittal of an accused person may, nonetheless - I hesitate to use the words "called in question", but nonetheless can be relied upon - I withdraw that. The circumstances resulting in the matter of his acquittal can nonetheless be relied upon as some indication of a special interest which would require, either by itself or in combination, a specific warning from the trial judge.

HAYNE J: The warning you say should have been given was that the jury should have been told, scrutinise this witness's evidence with particular care because, what?

MR ROBERTS-SMITH: A number of factors. Because he is a man who, on his own account, and certainly on the defence account - Inspector Willers gave evidence - but even on the prosecution case was a man who was very much personally involved in the act which, on the Crown case, gave effect to the attempt to pervert the course of justice.

It was Arnold who approached the various other police officers - Regan and Pottinger and so on. It was Arnold who actually did everything, on the Crown case. Willers of course said, well I did not know any of that any way. That was never my intention. I simply wanted to know what the options were and that Arnold was off, perhaps, on a frolic of his own. If that, of itself, was a reasonable possibility for the jury, if the jury could have thought, well here was a man, Arnold, who, for some reason of his own, was trying to, as it was put at the trial, trying to curry favour with Inspector Willers and help him out as he, Arnold, saw it, by getting his son off this charge, and subsequently found himself in trouble for having done so, and charged with attempting to pervert the course of justice himself, and then having given evidence of a particular account which resulted in his acquittal because he said he was really only acting on the advice, if not orders, of his superiors, Pottinger and the advice of Sergeant Regan.

If those were the circumstances you, ladies and gentlemen of the jury, should give this man's evidence very serious consideration, and it would be dangerous as a matter of law, I tell you, the judge should have said, in our respectful submission, to convict on his evidence in the absence of corroboration. There is no corroboration, so you would need to scrutinise the evidence very very carefully.

Now, of course, the point about all of that is, that it would have to be a judicial warning with the force of the judge's authority as a matter of law. What happened here, as your Honours can see from the application book, is that contrary, in our respectful submission, to the conclusions of the Court of Criminal Appeal, the learned trial judge did not, in fact, go through all of the evidence and identify, in the way we would say it was necessary to do, the deficiencies in the evidence, the conflicts, for example, between the evidence of Pottinger and Sergeant Arnold, a critical illustration of that being Arnold saying that after he first spoke to Inspector Willers on that first morning, he then went up and spoke to Pottinger, his senior, and said to him, Willers has just told me to fix it. Pottinger denied that. He said that was not said.

GUMMOW J: What is the point of general importance in all of this?

MR ROBERTS-SMITH: The point of general importance, if your Honours please, is that the position here is that we seem to have a situation in which, in our respectful submission, on an objective view of the circumstances, a specific judicial warning has been required, but has not been given, and the Court of Criminal Appeal has taken a subjective view rather than an objective view as to what amounts to circumstances requiring such a warning, and has come to the conclusion that, on that wrong view, we would submit, first of all that no warning was required. But then it has gone further and said, in any event, the way in which these matters were identified by prosecuting and defending counsel, and the way in which his Honour referred to those submissions of counsel was, in fact, sufficient. This was just a matter of credibility.

HAYNE J: Do you say that there is a class of witnesses of whom Arnold was one, in respect of whom such warnings should be given?

MR ROBERTS-SMITH: No. We say there is not a new class or category but what we do say is that there is a well recognised rule of law which requires a witness in these circumstances to be made the subject of a warning where there is, if such a warning is not given, a perceptible miscarriage of justice.

TOOHEY J: Does that put that witness in the same category as an accomplice for the purposes of the obligation to give the warning and the nature of the warning that is to be given?

MR ROBERTS-SMITH: We would say it is, perhaps, unfortunate - and I know this, in fact, came up particularly before the Court of Criminal Appeal - it is probably unfortunate to see it in terms of an accomplice warning, particularly because that added, of course, the complication then of the effect of Sergeant Arnold's previous acquittal. But the point we make - - -

TOOHEY J: But I am just simply asking, would there then be any difference between the obligation on the trial judge and the nature of the direction to be given, the nature of the warning to be given?

MR ROBERTS-SMITH: No, not in substance. It would essentially be very much the same warning. There would need to be, in our respectful submission, the sort of warning that was given in Faure's Case to which we have referred in our written submissions.

HAYNE J: There, the witness was the only other candidate for having committed the murder and she had not even been charged.

MR ROBERTS-SMITH: Yes, that is true. We are not saying that this is the same set of circumstances at all. We are here, of course, talking about principle. But, all the same, even looking at it in those terms, the only other person involved, or possibly involved in the mechanics of what the prosecution said was the commission of this offence, was Sergeant Arnold.

I mentioned a moment ago that at page 77, I think, his Honour Justice Franklyn pointed out that Arnold, because he had been acquitted of a similar offence, could therefore not be regarded as a person who was in a special category or who required a special warning. As I have indicated, even though it is not raised as a special leave point, it is a point which would nonetheless be argued no doubt on the appeal, should special leave be granted, that there is a distinction to be drawn between the effect of an acquittal of an accused person and the acquittal of a witness in these circumstances. It is probably necessary to say no more than that if one looks to the questions of issue estoppel, autrefois acquit and abuse of process, the principle which runs through the cases in the criminal law context seems always to be that the estoppel runs against the Crown. The Crown, in other words, cannot impugn a previous acquittal of an accused and Young's Case, which is at page 25 of the materials, is a good illustration of that.

This is not that situation and so one should ask the question, perhaps, should an accused person in Inspector Willers' position who says, "This man has a motive, has a basis, in fact, for giving evidence against me which is not true and which should require the jury to scrutinise it very carefully, and be subject to an express warning by the judge, with all the force of the judge's authority.", should he be precluded from that by the co-incidence or, indeed, the deliberate approach - I do not say that in any sinister way - but simply the sequence of events, the coincidence that the other party, the witness has, in fact, been tried first and acquitted.

TOOHEY J: Mr Roberts-Smith, I am just having some trouble with the way in which this is being put. You put it a while ago on the footing, as I heard you, that there was an obligation in law on the trial judge to give a specific direction relating to corroboration and that he failed to do so. The draft notice of appeal, and I hope I am not being pedantic, this is at page 87, places the proposed appeal on the footing:

That the verdict was unreasonable.....alternatively, there was a miscarriage of justice.....in failing to warn -

both of which I would have thought put the matter rather differently. Because if, in fact, there was a legal obligation on the trial judge that failed to comply, that might well be the end of it subject to the possible application of the proviso.

MR ROBERTS-SMITH: I understand what your Honour is saying, but the reason it has framed that way is in reliance upon the sort of analysis in Longman's Case, Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, particularly their Honours Justices Brennan, Dawson and your Honour Justice Toohey at page 89, and Justice Deane at page 97. Without taking your Honours to that now, it is simply a proposition that if the circumstances of the case do call for a special warning as a matter of law, then the failure of a trial judge to give one will result in a verdict which is unsafe or unsatisfactory, and unsafe or unsatisfactory, as in Western Australia, have been held to mean the same thing, to be unreasonable or not supported by the evidence, which is the particular phraseology in our Criminal Code. So, that is the only reason for expressing it that way.

I should also make this submission that when we say a corroboration warning, I think your Honour Justice Toohey said "corroboration warning" a moment ago, we would prefer to put it on the basis that there should have been a warning of the danger of convicting on Arnold's uncorroborated evidence. That is the way in which it ought to have been expressed because, as I said at the outset, there was here, as recognised by all concerned, in fact no corroboration. So that emphasises the importance of the warning of the danger of convicting in the absence of it.

Not only for the reason that Arnold was a person with a special interest, in our submission, and we would want to argue that on the appeal, clearly, but also that factor in combination with the other circumstances which have been listed and identified in the book of materials which has been provided to your Honours at pages 1 and 2 of that book of materials.

So, if one looks then at the directions in fact given by his Honour the trial judge, beginning at page 38, your Honours will see that at about line 15 his Honour begins talking about the way in which the evidence has been presented in the trial and says quite rightly, this direction is not binding on you. Now, I draw your Honours' attention to this because it is these directions of his Honour which the Court of Criminal Appeal have found adequately met the requirements of the case in terms of identifying the areas of conflict of credibility and evidentiary danger in terms of convicting. So, his Honour there is talking about the essential conflict between the Crown case and the defence case, on the other hand. He does not elaborate them in the same way or anything like the same way that the Court of Criminal Appeal in Victoria in Faure's Case. Then at the top of page 39, your Honours will see his direction as to the significance that the jury should attach to the conflicts in the evidence that had arisen. He refers there to Sergeant Arnold and Sergeant Regan.

But then immediately goes on, at about line 8, to point out, having identified the conflicts, and we would say having done so in circumstances where he should say, these are amongst the reasons you need to scrutinise this evidence very carefully, not expressing it that way at all, His Honour indeed, in contrast with that, goes on to say, at page 39, things such as, you should remember when addressing these conflicts, people have different recollections. He is completely taking away the thrust of any warning that would otherwise have been given or, in our submission, should have been given.

It was crucial, in our respectful submission, for the conflicts to be identified as matters requiring very careful consideration by the jury as indicating possible danger, very strong danger, on the part of convicting simply on the basis of Arnold's uncorroborated evidence. But instead, his Honour was telling the jury the significance of particular conflicts was a matter for them, not as a matter of law. He mentioned nothing about danger, no warnings about danger, simply conflicts of credibility were a matter for them and, in any event, people do have different recollections.

At page 43, he does much the same thing. He is, again, referring now to his observations about counsel's submissions and, again, your Honours will recall the Court of Criminal Appeal put considerable store in the fact that he had referred to counsel's submissions. At the top of page 43, line 5, he of course again says, "my comments are not binding on you". At page 44 at about line 16, he turns to the evidence of John Arnold and says "the crown case hinges on the testimony of this witness", which of course it did. All the more reason to give them a specific warning.

At page 45, all he says about the conflict between Regan and Arnold, and these were significant conflicts because these were prosecution witnesses, was that:

His account to the best of my recollection differs quite markedly from Arnold in one or two material respects. I will turn to that later when I discuss the defence case.

These directions , in our respectful submission, fall very very far short of the sort of warning type directions which the circumstances of this case required and in no way go towards accommodating the conclusions of the Court of Criminal Appeal, that what was said by counsel, and referred to in that way by the trial judge, overcame the essential, the fundamental problem here.

In our respectful submission, the issues are critical issues. There was a good prospect of success on this appeal and we seek a grant of special leave, if your Honours please.

TOOHEY J: Thank you Mr Roberts-Smith. Mr McKechnie, we need not trouble you.

Although this application challenges the finding of the Court of Criminal Appeal in failing to find that the verdict of the jury was "unsafe or unsatisfactory" or involved a miscarriage of justice, the argument turns mainly on the directions by the trial judge. The adequacy of those directions was assessed by the Court of Criminal Appeal and there is nothing that would warrant a grant of special leave to appeal. The application must be refused.

AT 4.17 PM THE MATTER WAS CONCLUDED