Williams v The Queen [2003] HCATrans 353 (12 September 2003)

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Williams v The Queen [2003] HCATrans 353 (12 September 2003)

Last Updated: 19 September 2003

[2003] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B7 of 2001

B e t w e e n -

BRIAN ANDREW WILLIAMS

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, 12 SEPTEMBER 2003, AT 12.44 PM

Copyright in the High Court of Australia

MR J.A. FRASER: If the Court pleases, I appear for the applicant. (instructed by Howden Saggers Lawyers)

MRS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

KIRBY J: Now, Mr Fraser, you had your attention drawn to the recent decision of the Court in Soma?

MR FRASER: I have, your Honour.

KIRBY J: That has led to further submissions on behalf both of the applicant and of the Crown?

MR FRASER: That is so, your Honour.

KIRBY J: Yes, very well. We have read all those and we know what the issues are.

MR FRASER: Thank you, your Honour. Your Honour, I should clarify one matter, and that is this, that originally Mr Williams filed a summary of argument – I think it was in March 2001.

KIRBY J: Yes.

MR FRASER: Mr Williams will no longer be relying upon the arguments as set out in that document.

KIRBY J: Yes, we understand that.

MR FRASER: Thank you, your Honour.

KIRBY J: We are appreciative of your assistance to the Court, too, in the further argument.

MR FRASER: Thank you, your Honour. Your Honour, the point in terms of the special leave point is this, whether the splitting of a Crown case can, in appropriate circumstances, amount to or produce a fundamental defect or a fundamental error in the conduct of a criminal trial. It is submitted on behalf of the applicant that in the circumstances of this case the course undertaken by the Crown Prosecutor in introducing the documentary evidence, that is, the letter which is referred to as exhibit 52, and the subsequent cross-examining of the accused upon its contents, was in the circumstances of this case – and, indeed, this is after the Crown closed its case – not justified, in that there were no exceptional circumstances which warranted such a departure from the general rule, as set out in cases such as Shaw, Killick and also referred to in the case of Soma.

HAYNE J: Now, let it be assumed in your favour that the Crown split its case. Let it further be assumed that that split was impermissible.

MR FRASER: Yes.

HAYNE J: What do you say about the reasoning in the joint judgment in Soma at paragraphs 40 to 43 and its application in this case?

MR FRASER: Yes. Would your Honour just allow me to take a moment?

HAYNE J: Yes, of course.

MR FRASER: Thank you. In my submission, your Honour, the fact that there was no objection should not be fatal to the determination of whether or not special leave should be granted, because in Soma and, I think, also in Burns’ Case, your Honour, where there was a splitting of the Crown case, there was no objection taken by the trial counsel in each of those cases. In my submission, given the manner in which the letter was introduced, it is not surprising that perhaps counsel was taken by surprise, given that it was introduced towards the end of the cross-examination of Mr Williams.

Trial counsel was probably placed in a very difficult position, because to take objection in front of the jury would have probably only heightened the problem that had been introduced by the Crown, if I can put it in those terms. The fact that there was no objection taken by counsel, in my submission, is not fatal to Mr Williams’ argument.

HAYNE J: One of the points that, it seems to me, emerges from what is said in Soma is that the relevant question for a Court of Appeal would be, where there has been a split of the case but no objection at trial, whether there has been a miscarriage of justice. Even if that is not right, at least on application for leave, a question arises whether the interests of justice in the particular case would warrant a grant. I have an impression in this case that the case against the applicant was overwhelmingly strong. Would you wish to say anything about that?

MR FRASER: I would have to concede, your Honour, it was a very strong Crown case. The problem, in my submission, for the Crown, though, is this, that the letter was introduced at a very late stage, in terms of Mr Williams’ evidence. It came at a time where he had been questioned at some length by the learned Crown Prosecutor and where his credibility would have been in the spotlight. Indeed, much of Mr Williams’ evidence, both in evidence-in-chief and in cross-examination, dealt with the confessions that the Crown relied upon and had been obtained by the police, and Mr Williams’ position was that those admissions were obtained as a result of either force, threats or physical violence.

So his credibility would have been very much in issue in respect of the confessions. In my submission, your Honour, to introduce, as it were, at a very late stage – I am talking about a very late stage of Mr Williams’ evidence – was, in my submission, unjustified, and, indeed, in my submission, productive of a miscarriage of justice.

If I could deal with this, your Honour – the respondent refers to Lawrence’s Case. I must say that when I initially drafted the outline for Mr Williams, I had forgotten about what had occurred in Lawrence, but, in my submission, Lawrence is readily distinguishable from the facts in this particular case, because there the evidence that was introduced during Mr Lawrence’s evidence went really to a peripheral matter. Indeed, it was not a matter that could be described as a vital link in the chain of the Crown case, nor was it conclusive of guilt, whereas the evidence here that was introduced by the learned Crown Prosecutor during Mr Williams’ evidence was relied upon by the Crown in their closing address and was referred to by his Honour in his Honour’s summing up.

Indeed, one looks at the totality of the cross-examination by the Crown Prosecutor, and it is clear that it was put fairly and squarely to Mr Williams that the letter could amount to an admission. To that extent, the evidence that was introduced during the cross-examination of Mr Williams was of a far more significant nature than the evidence that was introduced during the cross-examination – or interrupted the cross-examination – of Lawrence, so there is that distinction, in my respectful submission.

KIRBY J: But even without the letter, even if the letter were put to one side for the moment, the case against your client was overwhelming without the letter. I mean, his excuse that he gave in respect of the elderly neighbour was so fanciful and ridiculous that it would have been rejected out of hand. The fact that he did not tell the elderly neighbour of the horrendous scene that he claims he had just seen as a shocking discovery is just absurd.

MR FRASER: The facts do not help us, I would have to concede that, your Honour. The facts are not of great assistance to this argument.

KIRBY J: No, I realise that, but, you see, we have to concentrate on whether we grant you special leave.

MR FRASER: I understand that, your Honour.

KIRBY J: We have so many applicants who come here and say, “We have suffered a serious injustice”. That is the focus of most applications in criminal matters. You can win on a technical point, but in considering it you have to consider does it lead anywhere, because if it is an overwhelming case, as this case is, you are really just subjecting your client to another trial and you are subjecting the public purse to that cost.

MR FRASER: That is why, your Honour, my argument goes to this, that, notwithstanding that it is a very strong Crown case, what occurred here, in my submission, amounts to a fundamental error, and whether it is a strong Crown case or not, in my submission, is irrelevant, because if your Honours were to consider that it was a fundamental error then there is no issue, in terms of the proviso, in considering the strength of the Crown case.

KIRBY J: That is down the track, when we are engaged in hearing the appeal, but at the moment you are at the doorway, knocking on the doors of the Court.

MR FRASER: I understand that, your Honour.

KIRBY J: So it is a slightly different question. You have to show it is special.

MR FRASER: Yes. In my submission, your Honour, there is a special leave point, in that there can well be a situation where the splitting of a Crown case can, in appropriate circumstances, amount to or produce a fundamental defect in the conduct of the trial, such that the consideration of the proviso is not warranted. In my submission, here, your Honour, the evidence that was introduced at a late stage by the Crown Prosecutor was clearly not warranted, and, in my submission - - -

KIRBY J: Mrs Clare says that it was necessary for evidentiary reasons, for cross-examination of your client.

MR FRASER: Well, your Honour, they called the person the letter was sent to. Why could they not have asked her whether the letter - - -

KIRBY J: I think you make that point. I think Soma applies. I think the case was split; it should not have been split. It was an error, and the issue is whether or not, given the terms of the letter, and given also the overwhelming evidence otherwise, and given your very proper concession of the overwhelming case, which is, in any case, correct, this Court should give special leave in the circumstances. That is the issue for us.

MR FRASER: Yes. Your Honour, I am not sure that I can assist much further - - -

KIRBY J: No. I think you have assisted us both in what you have said and what you wrote, and the Court is grateful for that.

MR FRASER: Thank you, your Honour.

KIRBY J: Thank you very much. The Court does not need your assistance on this occasion, Mrs Clare.

The question eventually raised in this application was whether there was a fundamental defect in the trial of the applicant that warrants a grant of special leave. The special leave point is that at trial the Crown split its case by tendering in a case in reply a letter written by the applicant to his children which it was open to the jury to consider inculpated the applicant in the death of his wife.

The law governing the splitting of the Crown case has recently been considered by this Court in R v Soma [2003] HCA 13; (2003) 77 ALJR 849. We are willing to assume that the Crown did in this case split its case. We are also willing to assume that the splitting of the case by the Crown was erroneous. Forensically, the letter was undoubtedly important. However, no objection was taken at the trial to the course adopted. The issue therefore arises in this application as to whether special leave is warranted.

A consideration that is clearly relevant to the resolution of that question is whether a miscarriage of justice has occurred to the applicant. Here, counsel for the applicant concedes, properly, and it is the fact, that the Crown case against the applicant was overwhelming. In our view, that is so, even without the letter. We can therefore see no miscarriage of justice. There is no need for this Court to restate what it said in Soma. The applicant’s conviction was inevitable. There is therefore no need for this Court to grant special leave. Special leave is refused.

AT 12.59 PM THE MATTER WAS CONCLUDED