Shield v The Queen B27/2000 [2001] HCATrans 195 (4 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B27 of 2000

B e t w e e n -

SHANE ARTHUR SHIELD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 10.58 AM

Copyright in the High Court of Australia

MR P.J. DAVIS: May it please the Court, I appear for the applicant. (instructed by Boe & Callaghan)

MR M.J. BYRNE, QC: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Queensland))

KIRBY J: Yes, thank you. What do you say, Mr Davis?

MR DAVIS: Your Honours, the appellant's primary submission is that the Court of Appeal did not perform its duty to make an independent assessment of the evidence because the court did not perform an independent assessment of the evidence of the most important witness. There was a woman called Nicole Graham who - and this is non-contentious it seems - was a witness whose acceptance by the jury was essential to the Crown case.

My submission is that by failing to perform such an assessment the Court of Appeal has not merely made an error of fact but has made an error of law such as attracted a grant of special leave from this Court in the case of Morris v The Queen. The approach of the Court of Appeal, in my submission, can be seen clearly at paragraph 22 of the judgment, which your Honours will find at page 68 of the record.

KIRBY J: Yes, we have that.

MR DAVIS: That approach can be seen to be this, that his Honour Mr Justice Thomas correctly, in my respectful submission, identified that if the evidence of the woman, Nicole Graham, was accepted, then there was a circumstantial case that the appellant was one of the three offenders who ran into the house of the man, Street, where the deceased was ultimately shot.

His Honour then goes on to consider whether variations in detail of identification evidence, in effect - so the variations in detail of descriptions given by witnesses who saw the three offenders leave the premises were such as to, in effect, nullify the jury's entitlement to accept the circumstantial case set up by Graham. But, in my submission, the correct approach was to, firstly, identify certain inherent weaknesses in the evidence of Nicole Graham.

KIRBY J: At the trial there was a request for redirection, and his Honour, at page 58, gave a very strong redirection which said:

The Prosecution case stands or falls in effect by the evidence of Nicole Graham.

MR DAVIS: That is so.

KIRBY J: So there is no doubt that his Honour directed the jury's attention to the critical importance of that evidence - - -

MR DAVIS: It was her Honour, your Honour.

KIRBY J: - - - and the jury, therefore, would have had that freshly in mind at 8.11 pm when it announced that it could not reach its decision that night and wanted to have further time. So that would have been at the very forefront of the jury's consideration.

MR DAVIS: That is so.

KIRBY J: I realise you are not in this Court moving on a complaint about directions, but the fact that her Honour, and especially in redirection, made such an emphasis on that point really gainsays any suggestion that this was not critical to the jury's verdict and that they realised that.

MR DAVIS: That is so, but, in my submission, it was still for the Court of Appeal to properly assess whether it was open to the jury to form that ultimate conclusion.

HAYNE J: Why was it not open to the jury to accept the evidence of Nicole Graham?

MR DAVIS: Because when one looks at the evidence, there is as much a circumstantial case against Nicole Graham, in essence, as there is against the accused. The whole defence case at the trial - - -

KIRBY J: Do you contest that the Crown case stands on the evidence of Nicole Graham, which was what her Honour redirected and to which there was no objection?

MR DAVIS: The Crown case could only be successful, that is, guilt could only be found, if the jury accepted Nicole Graham's evidence beyond reasonable doubt on the salient issues, which was that she was in the unit and saw the accused leave with other men shortly before other evidence showed that the shooting occurred and then saw them return.

HAYNE J: Why could the jury not accept her evidence? You have to go as far as that, have you not, to say the jury could not have been persuaded beyond reasonable doubt?

MR DAVIS: No, your Honour. What I have to maintain here, in my submission, is that the Court of Appeal, whose function it was to determine that issue, could not, or did not, undertake a proper examination of that issue. But, in my submission, there were several aspects of the case which were not dealt with in the Court of Appeal. The first was that it was never mentioned in the assessment of her evidence by Mr Justice Thomas that she was influenced by drugs, she was influenced by alcohol, she had lied previously in relation to the matter in attempting to exculpate her boyfriend who was an accused in an earlier trial - that was the man, Fitzgerald. It was also the case that when one then looked at the other evidence, namely, the evidence of the identification witnesses, two things flowed from that, only one of which was identified in the Court of Appeal.

The thing that was identified in the Court of Appeal was that the identification witnesses, if I can call them those, gave evidence of identification inconsistent with the physical appearance of my client, the applicant. However, the second aspect was that the identification witnesses, or at least some of them, gave evidence of descriptions which were not only inconsistent with the applicant, but were consistent with that of Nicole Graham. It was the defence case at the trial that the third intruder was not the present applicant but, in fact, was the primary witness against the applicant at the trial, namely, Nicole Graham.

In my submission, that was the issue which should have been the subject of an independent assessment by the Court of Appeal and, in my respectful submission, it was not.

HAYNE J: What do you mean by "an independent assessment"? If you go back to the trial judge's charge to the jury about Nicole Graham at pages 12 and following, the judge draws to the jury's attention that her truthfulness was challenged, her being affected by drugs, her consumption of alcohol, her lies, the nature of her relationship with Mr Fitzgerald, and then later her Honour returned to this in recording the way in which the defence had put its case at trial. You say the Court of Appeal should have assessed it for itself. What should it have done that it did not do?

MR DAVIS: It should have looked at all the evidence and all the issues that were before the jury and should then have made an assessment as to whether it was open to the jury to draw the conclusion that it did. In my submission, in effect, what the Court of Appeal has done is - - -

KIRBY J: But everything depended on whether the jury accepted Ms Graham, and that was an issue which was the subject of strong charge to the jury, a redirection which put it in the jury's mind just before they finally retired, and it was critical, one way or the other, because if you accepted it, there was undoubtedly evidence that implicated your client in the offence. So that I do not just see for the moment what more the Court of Appeal could have done, given that that was critical to the determination of whether or not the evidence sustained the conviction.

MR DAVIS: The Court of Appeal should, in my submission, have looked more closely at her evidence and seen the inherent weaknesses in it.

HAYNE J: But inevitably they are assessing her evidence on the cold, hard transcript. The jury see her, the jury hear her, the jury hear the judge say, "Look at this woman's evidence very carefully", et cetera. How does the Court of Appeal substitute its view?

MR DAVIS: In my submission, when one looks at the objective facts that were not contentious at the trial, in my submission, those objective facts were such that the Court of Appeal should have held that that must have led the jury to doubt.

KIRBY J: Yes. Is there anything else?

MR DAVIS: No, your Honour.

KIRBY J: Yes, we do not need your assistance, Mr Byrne.

The only challenge to the conviction of the applicant pursued in this Court concerns the suggested unreasonableness of the jury's verdict, having regard to the evidence adduced at the trial.

The Court of Appeal of Queensland dealt with that issue in accordance with well-established principles. The trial judge correctly directed the attention of the jury to the criticisms of the reliability of the evidence of the witness, Nicole Graham. There was no application at the trial for any relevant further redirection in addition to that which was given on this point. It was open to the jury to accept the evidence implicating the applicant in the offence. We are not convinced that a miscarriage of justice has occurred or that any other error warranting the intervention of this Court has been established.

Accordingly, special leave is refused.

AT 11.10 AM THE MATTER WAS CONCLUDED