Smith v The Queen P31/1999 [2000] HCATrans 346 (16 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P31 of 1999

B e t w e e n -

WAYDE SHANNON SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 12.17 PM

Copyright in the High Court of Australia

MR M.T. RITTER: May it please the Court, I appear for the applicant. (instructed by Leonard Cohen & Co)

MR S.P. PALLARAS, QC: I appear with my learned friend, MS J.A. GIRDHAM, for the respondent. (instructed by Director of Public Prosecutions (WA))

McHUGH J: Yes, Mr Ritter.

MR RITTER: If the Court please, in this matter the applicant requires an extension of time for the filing of the application. There is an affidavit in the application book explaining the circumstances for the delay. With the Court's leave, I would like to address the merits of the application itself, in the first instance.

McHUGH J: Yes.

MR RITTER: This application seeks to raise two matters for the consideration of the Court. The first is the Court of Criminal Appeal's failure to decide the submission that the trial judge's directions to the jury on the meaning of corroboration were inadequate and confusing. That has the consequential point of whether the direction was inadequate and confusing and that a miscarriage of justice therefore occurred. The second matter is whether the Court of Criminal Appeal was correct to uphold the trial judge's direction to the jury that the evidence of the witnesses Weston and Honiset could at law corroborate the evidence of Ms Dawson. That second matter would allow and require the Court to consider the test to apply in deciding whether evidence can be corroborative.

If I can deal with the first matter. The first ground of appeal before the Court of Criminal Appeal was that the trial judge did not adequately direct the jury on the accomplice warning and corroboration, and although there were three particulars of this ground pleaded, as it was argued before the court the ground included a strong submission that the directions on the meaning of corroboration were generally unclear and confusing and it was the case that this was no mere passing submission but a central aspect of ground 1 as it was argued before the court.

There were fairly lengthy submissions made by senior counsel and discussion on the issue between counsel and the court that occupied at least 10 pages of transcript. At no point during those discussions did the court say that the ground as particularised would not allow or require the court to make a decision on that submission. It is also the case that the respondent did not seek to make that point at all at the hearing. The respondent met that submission head-on with submissions on its own as to the merits of that submission. In general sense, the respondent's submission was that the directions to the jury were adequate, although it was not submitted that the directions could not have been better or differently done.

It is the submission, therefore, that when the court reserved its decision the applicant had a reasonable expectation that it would decide this aspect of the first ground of appeal but the court failed to do that. It confined itself, in dealing with ground 1, to a discussion and decision on the three particulars of the ground and did not descend to decide the ground as it had been argued. Indeed, the court did not mention the argument at all in its reasons for decision. We would submit, in the circumstances of this case, it was wrong of the court to do that and that the court should have done one of two things. It should either - and we say it should have properly decided that argument and submission as part of ground 1 of the appeal or, alternatively, counsel's attention to the matter should have been drawn at the hearing of the appeal, such that the court should have advised counsel that, as pleaded, ground 1 did not properly raise this submission. We would say that - - -

McHUGH J: That seems to suggest that the relationship between the court and counsel is that of trained nurse and disabled child. I mean, surely counsel should amend their grounds to cover the arguments which they seek to raise. I mean, why should the court be a nursemaid looking after counsel?

MR RITTER: It is not a question, with respect, your Honour, of the court being a nursemaid but what is the case here is that the ground was broad enough to cover the submission that was being put. It was not covered in particulars to the ground. What required, in my submission, the court to deal with the matter was because of the submissions that had been made by counsel and because of the submissions that had been made by the respondent. It was clear, with respect, that the parties before the court were joining issue on this aspect of the ground of appeal. That being so, it was incumbent upon the court, as a matter of procedural fairness, to advise the parties if they were not going to decide this aspect of ground 1 of the

appeal.

McHUGH J: But is not the court's duty and the limit of its authority determined by the notice of appeal and the particulars filed in support of it? Has it got any authority under the statute to deal otherwise than with the issues raised on the notice of appeal?

MR RITTER: No, the court is bound, in the first instance, by notice of appeal, although amendments can of course be granted at the hearing of the appeal. Now, what may have occurred here is that the particulars were not as broad as the argument that was put before the court so that if there was a non-alignment between the submissions that were being put and the ground before the court we say in this particular circumstance it was incumbent upon the court to draw that to the attention of counsel. And, as I say, it was not something that was either drawn to the attention of the applicant's counsel nor the respondent's counsel sought to make an issue of that, indeed, they chose to meet the argument head-on.

So, we say in those particular circumstances there was an obligation upon the court to bring it to counsel's attention if it was not going to decide that as part of ground 1 of the appeal. So, it was wrong of the court, with respect, to leave the applicant in the position where it had an anticipation that that argument was going to be determined but then it was not determined or indeed at all referred to by the court in its decision. We say that the court should have looked at the submission and upheld that ground of appeal, based on that aspect of the ground. We say that that was because, properly looked at, his Honour's direction on the question of the meaning of corroboration was unclear and confusing and we say that that was so, in a general sense, because any correct statements of law in the direction to the jury were interwoven with both unclear statements and false analogies, such that the direction, overall - - -

McHUGH J: Would you take us to the passages, and I think most of them are from application book 50 through to 53, are they not, where you say that the directions were confusing and likely to mislead, or inadequate.

MR RITTER: That part of the application book deals with the submissions that were put to the court. It is perhaps more helpful for the Court to go to the directions themselves which commence at about page 7, the bottom of page 7, line 55.

McHUGH J: Yes.

MR RITTER: The court commences there at line 55 by saying:

Now, corroboration:

The testimony must be corroborated, supported, in some material particular

do you hear that word - "material particular"?

which indicates -

points to the crime itself, if you like -

And, then it goes on. Where it becomes particularly confusing is at line 25 on page 8 where the court refers to:

"In some material particular"

but then creates a false analogy with respect to that expression because it compares "in some material particular" the word "material" as it appeared in the indictment in relation to whether the testimony was material to the Kyle Inquiry, to whether the evidence corroborated a material particular of the witness' evidence. That occupies that paragraph.

McHUGH J: But you cannot point to any error of law, can you? You are forced to say things like, "The jury would not have understood the direction" or that, "It lacked a clear explanation".

MR RITTER: We say those things and that they themselves amounted to an error of law because it was confusing but we also, for example, point out at point 40 on page 8 where his Honour completes his analogy with material particular in the indictment and then says:

Therefore, you see, that is why I pointed that out to you at this particular stage because it links in with the corroboration. It must be corroboration of a material particular.

Now, with respect, that statement was completely wrong. The fact that the testimony had to be material to the Kyle Inquiry did not link in with what "material particular" meant in corroboration. So that there was that specific error of law in that statement as well as it generally being unclear.

Going over the page his Honour confused the issue further by, in talking about the question of corroboration, confusing the issue of corroboration of the daughter, Clare Dawson's evidence, with the evidence that had to be corroborated which was that of the mother, Mrs Maxine Dawson, and that that further confused the jury on the matter because the court pointed to something which was never in issue. It was never in issue as to whether the daughter's evidence had to be corroborated or was corroborated, so that the court is again there leading the jury down a false trail, with respect.

There is then the specific directions concerning the witnesses Weston and Honiset, and we say in the second aspect of our argument that that was incorrect. Then we say that as that concludes, that paragraph which commences at point 45 on page ,9 there is again a very confusing sentence:

Of course, as has been pointed out very correctly by Mr Grace for the defence, first of all, you have got to look at the evidence of Mrs Dawson, Mrs Maxine Dawson, first and then corroborative, and that is a question for you.

Again, with respect, your Honours, that is simply a confusing statement of what the jury had to do. There was no proper analysis of the evidence that could have been corroborative. There were analogies which were false analogies and, overall, the direction was confusing. So, we say the substance of the argument before the Court of Criminal Appeal had merit. The court should, in the circumstances, have dealt with it and its failure to deal with it constituted an error of law and it constitutes an error of law in a matter which should interest, with respect, this Court because it relates to matters of procedural regularity in a State Supreme Court, as to whether or not the court should, in a circumstance like this, either have decided the ground or advised counsel that it could not consider the ground unless there was some amendment to the particulars to ground 1 before the court.

If I can move to the second aspect of the special leave application. That, as I said earlier, relates to the characterisation of the evidence of Weston and Honiset as evidence which could corroborate the evidence of Ms Maxine Dawson. We say there was a misdirection by the trial judge in telling the jury that that evidence could corroborate, and further, even if it could corroborate, there was a misdirection or failure to direct them as to how it could corroborate. We submit that the Court of Criminal Appeal was erroneous in its conclusions and applied the wrong test in determining whether it could corroborate or not and we - - -

McHUGH J: First of all, the evidence of each of the witnesses was that of an independent witness. It was independent testimony. They deposed to what, surely, was a material fact in the case, namely, whether your client lived at 92A Dorchester Avenue from when, the beginning of 1990 until, what, May 1990?

MR RITTER: May 1990.

McHUGH J: Yes, So, why should not that be regarded as corroborative, in the sense that it supported the evidence of Ms Dawson, or at least it was certainly consistent with her evidence, and it was inconsistent with your client living with her at her unit?

MR RITTER: There are two aspects in relation to that: firstly, that the analysis of the court and that that your Honour has put does not consider closely enough what the issues were at the trial and that is in regard to the sense in which the applicant had said that he did live at the premises, that he lived there in the sense of staying there overnight three or four days of the week, that he arrived late at night, 10.30 or later, and left early in the morning, 6 o'clock or earlier, and so that, therefore, he lived at the premises in that limited sort of a sense.

Secondly, in looking at the evidence, then, the court had to look at whether that evidence was directed to that issue as to whether or not he lived there in the sense that he had described. Furthermore, the court had to consider the particular content and weight of each piece of evidence to see whether it could be directed to those issues, particularly - - -

McHUGH J: Yes, but you see, you seem to regard corroboration as having to take into account the accused's version of the case. What had to be corroborated was her evidence and she said he lived at a particular place and the evidence of Honiset and Weston tended to prove that that was so. Now, your client had an explanation. He said, "Well, I might have been seen coming and going but I wasn't living there.", but that cannot affect the testimony as corroborative evidence of Ms Dawson's evidence. I mean, she says he was living there and here is other evidence which suggests he was. Your client can say, "Well, I will confess and avoid that. I was there but" - surely, the evidence was corroborative evidence.

MR RITTER: We submit it was not and we submit that the process required an analysis of what the accused's position at trial was and that authorities such as Pisano's Case in Victoria makes that clear, that in considering whether evidence is corroborative, the court is required to look at the issues as they were joined at the trial and that evidence which simply confirms matters which are not in dispute is not corroborative. There is a good example that can readily come from Pisano's Case where the issue is whether someone was involved in a cannabis plantation. The question of whether he was seen on the property along with six other people who were the only people who ever went to the property was found by the Court of Criminal Appeal of Victoria not to be corroborative, in part because it was not inconsistent with his case, that he did at times go on that property because he was a part owner of the property next door. So that we say that closer analysis - - -

McHUGH J: Perhaps a better ground of justifying the decision was that the bare fact that he was on the property did not necessarily implicate him in the offence, but be that as it may, certainly there would be a lot of corroborative evidence which would be inadmissible if it could only be corroborative if it contradicted the accused's case.

MR RITTER: That raises the very issue that this application seeks to put before the Court because the Court of Criminal Appeal in Victoria seems to be taking that very approach. The approach of our Court of Criminal Appeal as evidenced by this application seems to be taking a somewhat broader approach which your Honour has postulated. We would submit that therefore there is an issue of principle which needs to go before the High Court for resolution on that question of how closely one needs to analyse the case of the defence in determining whether other evidence can corroborate.

McHUGH J: It has to be corroboration of the prosecution witness, and, I must say, I fail to see how what the accused has got to say about it affects it. The evidence either corroborates the prosecution witness or it does not.

MR RITTER: I think the issue, with respect, your Honour, emerges because there has to be corroboration in a particular material to the charge and we would - - -

McHUGH J: I appreciate that, but the material particular here is whether your client lived at 92A Dorchester Avenue between the beginning of 1990 and May 1990. That was the material particular in the case.

MR RITTER: We say that the issue of materiality must take into account the position of the defence at trial and that is the issue on which we seek to put this matter before the Court. Could I just say, as well, that in looking at the evidence of Mr Weston, the botanist, in particular, even looking at his evidence in the way in which your Honour has analysed, it was evidence which was so vague and non-specific that it simply lacked the weight in any sense that it could corroborate or confirm the evidence of Ms Dawson. We say that because he was vague in what he said. He said he visited the house generally but irregulary in 1990. He said he did visit at one stage between January and April 1990 but no further detail was given of that evidence.

McHUGH J: Yes.

MR RITTER: With respect, your Honour, they are our submissions.

McHUGH J: Yes, thank you. We need not hear you, Mr Pallaras.

In our opinion, this application does not raise any question of law involving any new principles concerning the law of corroboration. What is involved is no more than the application of established principle to the facts of the case. While it must be conceded that the directions at the trial were less than ideal, we are not convinced that any risk of miscarriage of justice has been shown by the applicant. In particular, we do not think that the Court of Criminal Appeal can be criticised in this case for failing to deal with arguments which were not clearly raised by the notice of appeal to it and the particulars relevant to the grounds of the notice of appeal. It is the duty of counsel when raising arguments in an appellate court to ensure that the grounds of appeal and the particulars are apt to cover the arguments advanced. In our view, the case is not one calling for the grant of special leave to appeal. In the light of that conclusion, the question of extension of time does not arise. The order is that the application be dismissed.

The Court will now adjourn to reconstitute.

AT 12.40 PM THE MATTER WAS CONCLUDED