Cookson v The Queen P14/2001 [2001] HCATrans 539 (24 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P14 of 2001

B e t w e e n -

STEPHEN RAMON COOKSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 11.57 AM

Copyright in the High Court of Australia

MR S.R. COOKSON appeared in person.

MR R.E. COCK, QC: I appear with my learned friend, MS J.A. GIRDHAM, for the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J: Yes, Mr Cookson.

MR COOKSON: I just wonder at the outset if I can make application for a 10 minute extension on my argument given the number of points.

GAUDRON J: We will see how you go.

MR COOKSON: I will start with point 3, which concerns the unindemnified evidence of the witness, Jones. Obviously the evidence of Jones was critical to the outcome of this trial. She gave evidence - - -

GAUDRON J: I thought the direction about her not being indemnified was in your favour.

MR COOKSON: Well, the problems that I see is that at page 57, when her Honour gave her direction, she made reference to matters that were not in evidence when she said that:

On the other side of it of course, it's true that she runs a very grave risk of being charged and being charged with possession with intent to sell or supply - - -

GAUDRON J: That is in your favour.

MR COOKSON: That is right, but then she qualified this direction and she says this:

she possessed it for her own use, not to sell or supply, and to hope - and that's all it is, a hope - that the jury would accept that and convict her of the lesser charge of simple possession - - -

GAUDRON J: That is in your favour too.

MR COOKSON: Well, it is not, because what it is doing is it is giving the jury a comparison with perhaps what I might have got as a sentence. What they are saying, they are talking about sentencing things which - - -

GAUDRON J: They are telling the jury reasons why they might think her evidence is credible rather than not believable.

MR COOKSON: Well I think they are saying that:

a charge of simple possession and to hope that since it's 6 years down the track and she is now a reformed addict the treatment that she would get would be more lenient than it would be for someone else.

There is no where in Jones' evidence that suggests that she expected the treatment to be more lenient and at this stage this undermines the weight of her evidence and her evidence was critical to the outcome of this whole trial.

GAUDRON J: No, no, it does not undermine her evidence, I would have thought; I would have thought it lends weight to it.

MR COOKSON: By saying because it was six years down the track she was going to get a lesser sentence than if she had of gone to court six years before? What they are saying is that the fact that it is six years down the track and the fact that she is giving this evidence, it could be perceived by the jury that six years before she would have got a greater sentence; that her sentence would have been more harsh, because now six years down the track she is a reformed addict and therefore the sentence is going to be more lenient. I would have thought that this was not a question that should have concerned itself with the jury. It was not a jury matter as to what sentence she may have got or what motivated her, because clear it was not in evidence. Her evidence at page 27 of the application book was this, in response to counsel's question. She says:

Q. Did you have any idea what may happen to you at that time if you had gone in off the street and just told the police what you have told us today? Did you have a belief of what might happen to you?

A. Well, yes; that I would be going to gaol for one thing.

Q. Yes, Has anything changed about your belief today?

A. No, just that I'm a stronger person now and more prepared to face whatever it is that's ahead of me.

Q. So the consequences for you today are the same as they were back then?

A. Well, the consequences are.

All the witness is saying is that she feels stronger in herself. She believes the consequences as a possible outcome from the authorities are exactly the same, but she feels stronger in herself to give the evidence that she did. If we go on to pages 39, 40, 41 and 42, this matter was canvassed between counsel and the judge and her Honour. It is significant that the Court of Criminal Appeal has said in its judgment at page 108 that the matter was not canvassed.

Now, with respect, does that mean that if they read the argument between 39, 40, 41 and 42 they may have looked at this point differently or does it mean that they just did not read it at all? But it is a matter of concern that they can say it is a significant point that this matter was not raised by counsel and as you can see from pages 39, 40, 41 and 42, it was canvassed in full. What comes out of this argument between experienced counsel and her Honour was that she said there are two different situations. She did not want the jury to be able to go in there and look at the situation as it had been that I was going to be - the differences between the evidence of Jones and the possible outcome of a sentence for Cookson or the applicant, were totally different and she says at page 41:

There's a substantial factual - I mean, there's a substantial contrast between the position of both of them. That doesn't mean that she hasn't taken a terrible gamble . . . I simply think that I am obliged to put the situation to the jury, but what Mr O'Doherty is now saying is, "Well, it was never put to her.

And then they go on at page 42 where Mr O'Doherty argues about the final outcome of the matter really is not a jury question. The judge makes it clear in these pages that she thinks that the fact that I would be given a possible harsher sentence or a possible harsher sentence than Jones, the jury should know this; the jury should have sort of idea. It is a balancing act and it is my respectful submission that there really needs to be a judicial pronouncement on the unindemnified witness. We have rules that regulate every type of evidence, in every part of our justice system, but there is no authority as to what rules should govern the evidence of an unindemnified witness.

KIRBY J: Yes, but I am with Justice Gaudron. The directions that were given were in your favour.

MR COOKSON: Well, I would argue that they certainly were not.

KIRBY J: I know you say that and I realise what you say in your written submissions, but the fact is - - -

MR COOKSON: I believe it was significantly qualified. Certainly, on one side she said, "She runs a very grave risk; but on the other side she says, "But, it is six years down the track" and "But she is a reformed addict" and "But she might hope that she gets lenient treatment". Of course, then that gives the jury another way to look at it, that, vis-a-vis me, she might get a lesser sentence. It is significantly qualified this and undermined a witness who was critical to the outcome of this charge and really, I can go no further with this point to say that really the matters of indemnities and immunities and unindemnified witnesses and what rights and how they should be questioned and whether judges feel they should do a balancing act between - the fact is, they gave evidence without an immunity and that should be in the highest class of evidence. Self-incriminatory evidence without an immunity: it is not needed to whittle away at that and take away from the strength of that evidence. That is - - -

KIRBY J: But the judge left it to the jury to evaluate that. It was a very dramatic thing for this witness, Ms Jones, to come forward in this way - - -

MR COOKSON: Certainly.

KIRBY J: - - -and therefore that is before the jury. It is really for the jury to decide about this.

MR COOKSON: But what is it that the jury has to think of what possible sentence she could get in the future? Why is that a jury matter at all when the evidence clearly was - it was not in evidence. There was no evidence that she was motivated by - - -

KIRBY J: But that rather - as Justice Gaudron pointed out to you earlier, I would have thought a jury would say, "This woman says she is stronger now, she has come forward, she is giving this evidence and she is doing it at risk to herself; she is not indemnified", therefore, prima facie, many jurors would think that is truthful.

MR COOKSON: But more jurors would obviously think that, look, six years ago she would not have got a longer sentence, she would have got more sentence, so therefore six years later - - -

KIRBY J: I think you better get on to your next point; I do not really think you are going to make much headway on this one.

MR COOKSON: Okay, fine. The second point is that the judge introduced the possibility of more than one offender and that was at pages 55 and 56. She made reference to, and I will go to it: "And so far as proving the accused the offender" - that was the first element. "The Crown did not have to prove that he is the only offender, but they must prove that he is an offender". And then she spoke then at page - - -

KIRBY J: Well that is true, is it not, as far as it goes? They have only got to prove the offence that is brought against you.

MR COOKSON: Certainly, but the circumstances of this case were such that the Crown ran its case on the basis that - - -

GAUDRON J: Yes, but you did not. That is right, you did not.

MR COOKSON: But it was my submission that Jones was always a proper prosecution witness. We had tried to have the matter stayed - - -

GAUDRON J: Well, it was not always your case. Your original case was that you were holding this for somebody else, a third party.

MR COOKSON: Yes.

GAUDRON J: And that is what you had said in the record of interview, which went into evidence.

MR COOKSON: Yes.

GAUDRON J: Now, if the jury rejected your account at bar, they had to consider what you said in your record of interview.

MR COOKSON: Fine, fine, but that would run into my third point then that there should have been then a direction given to intention and that is going to the third point. My second point was that, really, it was an all-or-nothing basis; it was not run on the basis that that video was correct. The Crown said at page - - -

GAUDRON J: I think it was ultimately. No, I am sorry - - -

MR COOKSON: No, well, what they are saying - - -

GAUDRON J: The Crown case was that you knew where the drug was. Ultimately, in the circumstances, that is all they had to prove against you, that you had been party to the drug being put in the position it was, either through knowledge or some other activity.

MR COOKSON: Yes, the Crown case was that it was more than 2 grams, therefore, by the deeming provision I was guilty of sell and supply and by virtue of the fact that it was there. They said at page 35 and 36, where the case was articulated by her Honour, that it really was an all-or-nothing matter and that other than I had made an admission to an amount of heroin that was over the deeming provision, then I was guilty; they took it no further than that. They ran their whole case on the basis that Ms Jones was not telling the truth. They said at page 24 of the application book, she is simply coming here to do a favour, she is not telling the truth. "It would have been easier three years ago to tell the truth, because what you are doing today is you are not telling the truth". So their case is run on the basis that she is not telling the truth. Not only did they open their case on the basis that there was only one person and that was me; they went further than that. They said that by virtue of the fact that Ms Jones's former husband had killed a policeman, she was dead against drugs.

So they left this to the jury and it was not until she gave her evidence that suddenly everybody said, all right, because her evidence was supported by therapists that she was a drug addict, but up until she gave her evidence, no one was prepared to even accept that she had a problem, she had an addiction, let alone that she was involved. She was not formally interviewed at the time, she was never taken to a police station. There was no attempt - we tried to get the trial stayed on the basis that she was a rightful prosecution witness and she should have been investigated, but nobody wanted to investigate her. Now then suddenly at the last moment they say, "Well there is more than one offender", that left me with - I had a another liability. I mean, what did the jury come back? Did they find me guilty of working with this guy by the video?

GAUDRON J: They only had to find you guilty of possession.

MR COOKSON: They had to find me guilty of possession, but on what basis? Was I guilty with the person on the video, the phantom, the guy that left there for $1000. Was I guilty with Ms Jones together or was I guilty in my own right? On what basis did the jury bring that decision? Because if they went to the jury room thinking that, "Well, Ms Jones was cross-examined at the end of her evidence on the basis that perhaps I had paid for it". Now, immediately that came into evidence, the jury had a thought, "Well, maybe he is involved". That is how compromised - "He is involved". And when the judge says, "You have only got to find that he is an offender, he does not have to be the only offender", of course we do not know what to come back with.

This would run into the third argument and my third argument is that once this evidence is before the court and the Court of Criminal Appeal said at page 117, and as your Honour has said today, that this evidence was before the jury, it was in the trial, therefore they were entitled to adjudicate on it. My argument is that once the judge accepts that there is that evidence in the court, it does not matter how it got there, whether she introduced it or whether it is there by itself. She had an obligation to bring that evidence before the jury, especially in cases where there is a reversal of the onus of proof.

When there is a legislative reversal of the onus of proof I would have thought that it would have been incumbent upon a judge to say, "Look, there is evidence in the video". I mean, the judge herself at page 35, she said the very thing. She said, "What happens if - you do not believe the video was correct, counsel does not believe the video correct, but what happens if the jury believed that the video was correct? Should I say anything?" And what was said, "Well, he has disavowed that evidence, he has disavowed it." The point being, if evidence existed as to intention in a case where there was alleged reversal of the onus of proof, it should have gone before the jury.

GAUDRON J: What intention? To supply.

MR COOKSON: That is right, exactly, the deeming provision.

GAUDRON J: Yes, but you did not raise any matter to rebut the presumption in your case.

MR COOKSON: No, exactly.

GAUDRON J: No, well you did not.

MR COOKSON: Because I did not have to, because as far as I was concerned it was an all-or-nothing matter, as the Crown stated the case.

GAUDRON J: No, no. If the jury found you were in possession then they necessarily had to look to the deeming provision.

MR COOKSON: Exactly.

GAUDRON J: Your counsel was well aware of the deeming provision. And the onus was on you to rebut it, but you had really - - -

MR COOKSON: But my case was already split. It was too late in the day - when the idea that there is another offender - we have run our case on the basis that I am not guilty, that I did not possess that at all.

KIRBY J: We know all that and you are trying to run - - -

MR COOKSON: Of course, so why at the last moment my case was split.

KIRBY J: You want to try to run a different case now?

MR COOKSON: It was too late, I could not run it.

KIRBY J: It is. Does that mean you are not proceeding with the application in relation to Mr Allen?

MR COOKSON: Yes, I am.

KIRBY J: You are. Well, that is to run an entirely different case.

MR COOKSON: No, it is not. What I am saying is this, that it was put before the jury the possibility of other offenders, when that was never the Crown case, and there are 35 references in the transcript where they have said, "You are not telling the truth, it is an all-or-nothing matter". Once there was a possibility there were more offenders then I should have then been given - otherwise the Crown are having it both ways. On the one hand they are saying, "Okay, we are not going to call Jones. We do not believe Jones is telling the truth" and then suddenly the jury go off and find me guilty. At that stage then there was a duty on the judge to bring up all that evidence, to bring up the evidence of the video, to bring up the fact that maybe I was holding it for Jones. It was incumbent upon her, especially in a case where there is a reversal of the onus, where I am the one who has got to prove, I know on all probability, but that did not happen.

KIRBY J: You better leave time for dealing with Mr Allen's evidence.

MR COOKSON: The situation about Mr Allen was, this fresh evidence, it is our submission that - - -

KIRBY J: You see the Crown's assertion that it is not fresh evidence because.....reasonable diligence of - - -

MR COOKSON: It is certainly fresh evidence, because until Jones gave her evidence and unless Jones volunteered that evidence, the existence of Allen did not exist. Allen's evidence was that he had given an undertaking to Jones that it would not be brought up and no one would be the wiser. He went off to Queensland. There was no possibility that we could find out the existence of Mr Allen, and Mr Allen's evidence has got to be seen - it is not a situation where Gallagher, or these situations where people are in prison and suddenly they want to get discounted. Allen's evidence has got to be looked at in the light of the evidence that Jones had already given. Of course there has been more than enough authority now that a court of criminal appeal has got the right to assess the evidence, but there is no protection when the court gets it wrong. The court has based their arguments as to why fresh evidence should not be introduced on wrongful facts, and I can go through them. They said, at one stage at page, when I can find it.

KIRBY J: Do not worry about the page, just tell us what you say they said.

MR COOKSON: They said that it was puzzling. They found that all the inconsistency in police evidence was puzzling, but they said that because it could be accepted on the basis that he was holding the heroin upstairs for Ms Jones. There is no evidence to that. Ms Jones said that I had no knowledge of that there whatsoever. They then said that, "Okay, fair enough, even if it was taken that Ms Jones bought it, that Ms Jones paid for it, Ms Jones was the possessor, the applicant was guilty because of the fact that he could point out in the backyard where it was, made him guilty of possession". But that is an illogicality. The Crown case was not that I could point it out in the backyard; the Crown case was they found it; that a police officer, independently searching, found it. My evidence was, no, that did not happen. I went out and told them where it was after Ms Jones - - -

KIRBY J: Yes, we have read that.

MR COOKSON: Yes, and this is highly significant, because it was not until she was under cross-examination that she said "No".

KIRBY J: Yes, well that was put before the jury, but what about the new evidence that you are asserting?

MR COOKSON: Well the fresh evidence goes to credit.

KIRBY J: Yes, I realise that, but it is said by the Crown that it could, with reasonable diligence, have been produced by you at the trial. You are trying to have a second go; a lot of people do that. When they lose one trial - - -

MR COOKSON: Not really, I think the Crown had a second go, throughout the trial. I had to face all these different things as they went along and then when the fresh evidence came along, which could not with due diligence be found, because until Jones gave her evidence we were not aware. Unless she volunteered the existence of Allen, and she did not want to volunteer the existence of anyone; she was told because she did not have an immunity that she had to name the person that supplied the drug in the first place.

The problem is this: when the judicial proviso was used in a normal case, not in the case of fresh evidence, there is a chance fairly open to the accused. Now I have lost that chance of it being fairly open. His evidence - it is like a cake; we have all got a piece of cake and the cake looks lovely, everyone in this courtroom - - -

KIRBY J: Yes, but as the Crown points out, the fact that there was some arrangement for the sale of it does not, in any way, touch later possession of it and later possession of it is attached to you.

MR COOKSON: But there was no evidence other than the video that I possessed - there was no evidence.

GAUDRON J: Well, it was found in the house or in the unit which you occupied with Mr Allen. You went out to the backyard and you volunteered, I think, to the police what it was.

MR COOKSON: Yes.

GAUDRON J: I do not know if you told them where the second container was?

MR COOKSON: Well, my evidence was that I was; the Crown's evidence was that they found it independently.

GAUDRON J: Well, it does not matter. You might have been believed on that. They were all matters from which the jury could infer possession.

MR COOKSON: But how would the jury have looked at all the inconsistencies in the police arguments, how would the jury look at all this if they knew that she had bought it and paid for it the day before, when the Crown case was, she was not involved.

KIRBY J: It is not inconsistent with your possession.

GAUDRON J: Well now, I think your time is up, Mr Cookson, thank you. Mr Cock, we need not trouble you in this matter.

We have considered the applicant's arguments and written submissions. Having regard to the issues that arose at the trial, we are satisfied that there was no misdirection or other error in the summing up by the trial judge. Having regard to the nature of the evidence of Mr Allen, we are satisfied that the Court of Criminal Appeal was correct to refuse to order a new trial on the basis of fresh evidence. Moreover, it cannot be said on the evidence that the jury should have given rise to a reasonable doubt as to guilt. Accordingly, the application for special leave is refused.

The Court will now adjourn to reconstitute for the matter of Prast v Town of Cottesloe.

AT 12.21 PM THE MATTER WAS CONCLUDED