Houghton v The Queen B77/2000 [2001] HCATrans 308 (27 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B77 of 2000

B e t w e e n -

DAVID BARRY HOUGHTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE 2001, AT 11.20 AM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC: May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the applicant. (instructed by Philip Bovey & Company)

MR M.J. BYRNE, QC: If the Court please, I appear with my learned friend, MR N.V. WESTON, for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Glynn.

MR GLYNN: Your Honours, this is a matter where an extension of time has been sought. The reasons for the delay in making the application are set out in the affidavit of Mr Bovey at pages 68 to 70 of the record. The application was brought, it is submitted, reasonably quickly, given the steps which had to be taken in the circumstances of the case and - - -

GLEESON CJ: Let us see if the application is opposed. Is that opposed?

MR BYRNE: No, it is not, your Honour.

GLEESON CJ: Yes, you have that extension of time.

MR GLYNN: Thank you, your Honours. Your Honour, the applicant's conviction depended on the evidence of a single witness, Klarfeld, who claimed that the applicant had admitted to him his involvement in the murder. At the time of the murder Klarfeld was president of the Bandidos motorcycle club and the applicant was a prospect in that club. Klarfeld claimed not to have been present at the scene at the time that the murder took place. Klarfeld, your Honours, was a witness - - -

GLEESON CJ: Just before we go any further, your client was successful in the Court of Appeal and a new trial was ordered?

MR GLYNN: That is right.

GLEESON CJ: But what you want to appeal to this Court for is a further measure of success, you would like the conviction quashed entirely?

MR GLYNN: That is correct, your Honour.

GLEESON CJ: In a case where there is evidence of a confession by your client?

MR GLYNN: Yes, your Honour.

GLEESON CJ: Yes.

MR GLYNN: The submission is effectively that the Court of Appeal failed to properly apply the test in Jones v The Queen to the circumstances of the confession and, in particular, the witness who gave the evidence. His credibility, it is submitted, was seriously flawed and he was uncorroborated as to the fact of the confession having been made or as to the fact of the applicant having been involved in the killing.

In the summing up the trial judge listed a number of factors adverse to Klarfeld's credibility which called for caution before accepting his evidence. Your Honours, these are to be found in the record at page 19 to page 21 and the factors are, firstly, that he had admitted to conduct which made him an accessory after the fact to the murder.

GLEESON CJ: You would have to be a pretty shabby old witness if that would lead a court to decide that it would not even leave it to a jury to consider whether to accept him.

MR GLYNN: It is submitted that he was a most unbelievable witness, your Honour. That is the essence of it. Your Honours, he had the benefit of an undertaking from the Attorney-General not to prosecute him on the basis of anything he said in evidence. There was talk between himself and police officers as to his being offered a - it was described as "a letter of comfort" in respect of sentencing for unrelated drug matters. He had a background of adopting false names for what the trial judge described as perhaps criminal purposes. The manner in which he gave evidence or information to the police was as a result of pressure put on him by police officers in a number of interviews over an extended period of time and it was in circumstances where it was accepted that he was a prime suspect in the murder.

He, of course - I should not say "of course" - initially on a number of occasion had denied any knowledge about the matters. His Honour referred to a warning and he said that the warning was necessary:

Not only from the circumstances in which it was first proffered, but also because of the delay between the events to which his evidence refers, and that fact that no record of conversations was made. Nor was there any satisfactory evidence about the time, date or place, or circumstances, in which -

the admissions were said to have been made. That is at page 21 of the record, in the first paragraph. The Court of Appeal made a number of findings about the witness. At page 58 of the record the court said at paragraph [5]:

At the time Klarfeld was the president of the club and the evidence clearly revealed that this was a position of untrammelled authority. It is fair to say that ordinarily nothing happened in the club without the knowledge and permission of Klarfeld.

At page 60 of the record, in paragraph [16] the court made a number of findings about Klarfeld. In paragraph [16] the court said:

Klarfeld, upon whose evidence so much of the Crown's case relied, was an unsavoury witness. Notwithstanding this the jury apparently was able to accept him as a witness of truth. The unsavoury factors surrounding Klarfeld included the following -

that he was "an accessory after the fact"; that he had "the benefit of an undertaking"; that he had been offered the "letter of comfort"; that:

(iv) he acknowledged that he was the prime suspect for the killing therefore giving him a substantial interest in seeing others charged and convicted;

(v) there was strong inferential evidence that he was involved in the killing, in particular his involvement in conversation with Clear -

who was the man who was said to have motivated the killing -

on the afternoon before the killing from which Sainsbury -

another member of the club -

was excluded, and his position of authority.

Your Honours, the significance of that is that Klarfeld claimed to have known nothing about the murder in advance of its having occurred. In its reasons for judgment the court, therefore, it is submitted, identified reasons why a court would have to be prima facie inclined to interfere with a verdict, given that the court said that - and it is submitted rightly - that the conviction depended entirely upon the evidence of Klarfeld.

The court correctly, it is submitted, identified the test from Jones v The Queen, which is set out at page 61 of the record, but the court then having identified the test and having identified the problems with Klarfeld's evidence, simply said:

Applying that test we are unable to conclude that the verdict of the jury in this case was so unsatisfactory, or unsafe, that it should be set aside.

Now, the submission, your Honours, is this, that the failure of the court to expose any reasons - - -

GLEESON CJ: What more can you say? You say, "The Crown case turned upon the evidence of Klarfeld. These are all the problems with the evidence of Klarfeld" - and you do not suggest that they did not advert to some material problem - "This is the test stated by the High Court. Applying that test, we don't think that we can categorise the verdict as unreasonable."

MR GLYNN: Your Honour, given that the court had prima facie identified serious flaws in the witness, it is submitted that the court should have identified reasons why, against that background, it would conclude that the jury enjoyed some particular advantage that the court did not.

In my submission, the court twice, at paragraphs [16] and [18] on page 60, simply stated baldly that "the jury was able to accept him as a witness of truth" or that "the jury was about to be satisfied beyond reasonable doubt", but it would appear on the face of it, without more, that what the court has simply done is said that the jury's acceptance of Klarfeld overcame the problems of Klarfeld's evidence, which, of course, fails to undertake the independent assessment that is called for by Morris v The Queen. I am not suggesting, your Honours, that in all cases where a court has this problem posed to it that it will have to identify why it finds the jury verdict advantageous.

GLEESON CJ: But this was in a sense a very simple case. The jury believed a certain witness. The Court of Criminal Appeal never saw that witness. They were apprised of all the criticisms that were levelled at the credibility of that witness and they said, taking all those things into account, "We don't believe we can categorise the jury's acceptance, the jury's decision to believe the witness they saw as unreasonable".

MR GLYNN: Your Honour, with respect, having identified those quite serious flaws in relation to the witness's credibility, my submission is that what the court should have done was identify if there was some reason for saying that the jury's advantage overcame those problems, because they were problems that were obvious on the face of it and, therefore, one would have thought to overcome them it would be necessary to point in some way to the jury's advantage rather than simply say, "Well, the jury obviously accepted him", which is what the court has done.

In my submission, what Morris calls for is a more significant examination of the problems than has been done here and that the court's failure to do that identifies or calls into question whether the exercise has been properly carried out.

This case, in fact, it is submitted, has some similarities to the situation that was dealt with by the Court in Morris v The Queen [1987] HCA 50; 163 CLR 454. If I could take your Honours to some passages from the joint judgment of Justices Deane, Toohey and Gaudron at page 473 of the record at about - in Morris I should say the broad background was that the applicant was convicted of manslaughter based on admissions that he made to a person who was known to him. The reliability of the statements made was at issue for reasons associated with the applicant's alcoholism and, therefore, the consequences to his mental health.

GLEESON CJ: Yes. His mental state was such, partly as a result of his alcoholism, that, according to the headnote, "it was likely that he would be prone to confabulation", which I understand to mean it is likely that he was recounting events he would not really have a recollection of what happened. He would make things up, in other words.

MR GLYNN: Yes. Whilst the aspect of reliability of the admissions is different in that case, namely, whether the admissions were able to be relied upon given that there was a reason to accept that they were made, in this case the reliability has a different aspect, it is conceded, and that is the reliability is the reliability of the witness as to whether they were actually made.

GLEESON CJ: It goes to the honesty of the witness.

MR GLYNN: Yes. It is simply a different aspect of credibility.

GLEESON CJ: Not quite. In Morris it went to the capacity of the witness.

MR GLYNN: Not to the capacity of the witness; the capacity of the applicant, your Honour.

GLEESON CJ: No, the capacity of the witness to tell the truth.

MR GLYNN: No, I am sorry, with respect to your Honour. It was the applicant who suffered from the problem and it was whether the person who - the witness was a woman who worked at, as I recall it, a hostel that the applicant frequented because he was an alcoholic - - -

GLEESON CJ: The headnote says:

The accused was a chronic alcoholic, and there was medical evidence that at the time he made the admission he had consumed enough spirit to produce a state of intoxication in which it was likely that he would be prone to confabulation.

MR GLYNN: Yes, but it was not the witness who was in question. It was the reliability of what was said to the witness that was in question. So I concede there is a difference in the issue but, in my submission, the approach of the Court there is helpful to the applicant here. At about point 5 on page 473 the Court said:

A Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality. In the present case, the Court of Criminal Appeal held, correctly, that the evidence of Mrs Bargo "was plainly sufficient to justify a conclusion on the part of the jury that the accused was responsible for the act of throwing the methylated spirits on the deceased and setting them alight". However, there was a further obligation upon the Court of Criminal Appeal to assess the reliability of the admission to which Mrs Bargo deposed. On that issue the Court of Criminal Appeal noted that the evidence of Dr Quinn, to which reference has already been made, was relevant to the intention of the accused and the reliability of his admission to Mrs Bargo, but stated that "those matters were essentially questions for the jury.

At the bottom of the page, they say:

In treating the question of the reliability of the admission made as one of credibility to be determined by the jury, the Court of Criminal Appeal failed to perform an independent assessment of the only evidence which linked the applicant with setting fire to the deceased persons. That evidence fell for assessment in the light of a single body of evidence, relevant not only to the issue of the reliability of any admission made to Mrs Bargo but also to the question of diminished responsibility on the part of the applicant, which the jury found was established.

CALLINAN J: Mr Glynn, on one view I think the Court of Appeal here has done that. Having found that you should have your new trial because of the Hancock evidence, the court then went on to look at Klarfeld's evidence and, as I read it, seems to have said it does suffer from a number of defects and the trial judge identified all of these defects and very carefully, indeed, impeccably, explained them to the jury, but notwithstanding all of that, the jury must have accepted Klarfeld. So that, it seems to me, does involve an independent assessment and part of the assessment involves a consideration of what the jury were told. It is not simply an assessment of the evidence. There has to be an assessment of the trial and what happened at the trial and the evidence.

MR GLYNN: That is, in fact, my complaint, your Honour. It is not suggested that the court did not look at the evidence. They clearly did because of the findings they made. What they did was they looked at the evidence, they summarised the problems, but then they made the jump to - - -

CALLINAN J: No, they did not jump, because after summarising the problems, it seems to me that they said the trial judge properly identified all of these problems and scrupulously warned the jury about them, but notwithstanding that, the jury chose to believe Klarfeld. Did they not really do that, the Court of Appeal?

MR GLYNN: My submission is that that was not the way they approached it. In fact, what they did was they just made the jump. They identified the problems. They - - -

CALLINAN J: I will tell you what I had in mind. I really had in mind paragraph [18] on page 60, which I suggest involves an intermediate step and shows that they did not jump at it:

At the trial the learned trial judge carefully and properly explained to the jury the dangers which are apparent -

in other words, the judge did all of these things but, notwithstanding all of that, the jury accepted Klarfeld. In those circumstances, is it not appropriate that there be a new trial at which Klarfeld's evidence will be assessed against, among other things, the evidence of Hancock?

MR GLYNN: Your Honour, the problem of what was done was that although the court say that - that is the problem, in my submission. The court say if they were properly instructed but they believed him despite these problems. My submission is that it requires some intermediate reasoning as to why in the circumstances that would be sufficient.

GLEESON CJ: But what that reasoning amounts to depends on the circumstances of the case. I think I understand your point, which is that they, in effect, abdicated their responsibilities by leaving it to the jury, saying, "This is a jury question and the jury decided it". But I am far from convinced that that is what they actually did. My problem is to understand what more they could have said than they actually said to justify the conclusion that they reached.

MR GLYNN: What they needed to do was explain why - - -

GLEESON CJ: But what they were saying was, was it not, "These unsavoury factors do not individually or in combination produce in our minds the consequence that it was necessarily unreasonable of the jury to believe him"?

MR GLYNN: Yes, and my submission is that that is an incomplete reasoning in that there needs to be given - your Honour, I accept that in many cases the court can take that step, but here, where there were so many problems identified, there needed to be some explanation, if one was possible, of why it was that the jury's advantage - which is really what is referred to in Jones v The Queen - why, given that there are these problems, the jury's advantage in seeing and hearing the witness overcame the problems identified by the court. My submission is that prima facie against the background of those findings the nature of the flaws were such, given that the witness was totally uncorroborated in respect of either the making of the confession or the fact of involvement in the killing, that a jury should not have been satisfied beyond reasonable doubt. That is, I suppose, the essence of it.

CALLINAN J: But what they quote in paragraph [27] from Ratten, I think at least implicitly involves that they have undertaken a review. They may not have stated the details of the review fully but they were conscious of what they had to do and by specifically referring to what Sir Garfield Barwick said in Ratten they were conscious of this and they seem to have done it.

MR GLYNN: Your Honour, there they were more dealing with the test of what to do with fresh evidence.

CALLINAN J: Exactly, and they are saying, "In the context of the fresh evidence, we don't think that having regard to everything, including Klarfeld's evidence, we should quash this and not order a retrial".

MR GLYNN: Yes, I am afraid I come back - - -

CALLINAN J: They might have said more. Perhaps they should have said a little more, but I think they have said enough.

MR GLYNN: My submission is that the failure to elucidate why they make that jump, why they say that the jury's advantage overcomes the problems implicit in this particular case - and I stress that it is particular case - that the jury actually enjoyed an advantage that they did not and there is no apparent reason.

GLEESON CJ: Thank you, Mr Glynn.

MR GLYNN: Thank you, your Honours.

GLEESON CJ: In this matter the applicant for special leave to appeal was successful in his appeal to the Court of Appeal but that court ordered a new trial rather than simply quashing the conviction. The applicant seeks special leave to appeal further to this Court, seeking an order from this Court that the conviction be quashed on the ground that the jury's verdict was, to use the expression used in argument, although it is an expression that is now in some disfavour, unsafe or unsatisfactory.

The argument for the applicant is that the Court of Appeal failed adequately to discharge its function in assessing the evidence in the case for the purpose of considering that submission. We are not satisfied that the Court of Appeal failed to discharge its proper function in that respect and we think that there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is refused.

AT 11.41 AM THE MATTER WAS CONCLUDED