Gibson v The Queen [2003] HCATrans 399 (3 October 2003)

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Gibson v The Queen [2003] HCATrans 399 (3 October 2003)

Last Updated: 14 October 2003

[2003] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S429 of 2002

B e t w e e n -

TROY TERRENCE GIBSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 11.10 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, I appear for the applicant with my learned friend, MR G.W. TURNBULL. (instructed by Forsters Solicitors)

MR G.E. SMITH: May it please the Court, I appear for the respondent with my learned friend, MR D.C. FREARSON. (instructed by the Solicitor for Public Prosecutions)

McHUGH J: Yes, Mr Byrne.

MR BYRNE: Your Honours, this application raises what is, in our submission, a question of importance in the administration of criminal justice, namely, the scope and nature of the obligation of the Crown to call witnesses in a criminal trial. Essentially, it is contended that this case raised for determination the question of the application of the principles established by this Court in R v Apostilides, a decision of the Court in 1984. The relevant part of the Court’s decision in Apostilides is set out in the judgment of Justice Sully in the Court of Criminal Appeal and it appears at page 210 of the application book.

KIRBY J: There is no new legal principle. It is simply the application of well-established principle.

MR BYRNE: Yes, your Honour.

KIRBY J: It does not sound a very attractive special leave point then, looking at it from our point of view, unless it is a miscarriage of justice.

MR BYRNE: There is, in our submission, a matter which does - - -

KIRBY J: This is the Evidence Act point, is it?

MR BYRNE: No, it is not so much the Evidence Act point, in our submission, but the question that Apostilides in effect creates two propositions which should be applied. In our submission, in this case attention has only been given by the Court of Criminal Appeal to one of those propositions.

The principle is sometimes shortly expressed as the obligation of the prosecution to call a witness in its case and to question that witness and adduce evidence from the witness. There is another way in which the prosecution may in effect present a witness in a criminal trial which does not require the prosecution to examine the witness and it is recognised in Apostilides that where a decision is made by the Crown Prosecutor not to call a witness, and if I might quote briefly from what is said by the joint judgment of the Full Court in Apostilides, and it is probably most useful to refer to page 210 of the application book, alongside line 50 this observation is made by the joint reasons of the Full Court:

In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment, but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.

It is our submission that in this case that second and very important part of the principles established in Apostilides was not applied in the judgment of the Court of Criminal Appeal.

McHUGH J: Yes, but Mr Byrne, your problem is, is it not, that the Court of Criminal Appeal, having considered the matter, came to the view that the failure to call Mr Stephens did not result in a miscarriage of justice and as Justice Kirby said, that is a question of fact which does not raise a special leave point.

MR BYRNE: The manner in which the court had applied the principles in Apostilides was, in our submission, patently wrong in the sense that the conclusion - - -

KIRBY J: For present purposes one might perhaps say there is a matter that has been omitted, but if it does not lead to a miscarriage of justice it does not lead anywhere in this Court because we do not need to say again what was said in Apostilides.

MR BYRNE: No, I accept that.

KIRBY J: And therefore all that has happened is that the Court of Criminal Appeal has not addressed itself to the second limb, as you put, and therefore the question is, assume we find error, address ourselves to that question or send it back to be addressed, does it lead anywhere and given the fact that the brother was very intoxicated at the time, the suggestion is that it does not lead anywhere.

MR BYRNE: The brother, whilst intoxicated, was an eyewitness and his evidence was important. Questions can be raised about the extent to which reliance can be placed on his evidence but many of the other witnesses were also intoxicated, as is to be expected where the circumstances involve an event at about 4 o’clock in the morning in a hotel. There were relevant events occurring both inside the hotel and outside the hotel and the brother, the witness Guy Stephens, potential witness, was present at both of those locations.

What Justice Sully said in concluding that his evidence would not be of any assistance was, in our submission, incorrect. If I can just briefly take your Honours to parts of the conclusions made by Justice Sully, which we would submit are in error. The first relevant part is at page 217 of the application book where his Honour, after recognising alongside line 10 that Guy Stephens, in the statement that he had made to the police in the form of a recorded interview, had noted that there was “aggressive interaction between” the people who were the victims of the alleged offences, then concluded at line 23 that Mr Stephens had “nothing precise to say on this topic”. But the mere fact that Mr Stephens could give some evidence of the fact that there had been aggressive conduct on the part of the victims inside the hotel was a matter of real significance.

His Honour then goes on and it is in perhaps this later passage that it is, in our submission, clear that an error has been made. What his Honour says is this, alongside line 35:

That material, if accepted, does not seem to me to strengthen the version given by the appellant in his evidence of the course of events in connection with the scuffle inside the Aspen Hotel. The way in which Mr. Stephens describes the relevant sequence is as consistent, in my opinion –

with the versions given by the victims -

not having been the aggressors, as it is consistent with the contrary inference.

If that is the case then that evidence should clearly raise at least a reasonable doubt about what the true position was. His Honour’s conclusion was that the two versions were equally consistent.

In those circumstances then there is, in our submission, a very clear conclusion that can be drawn that if Mr Stephens had been available to give evidence then he might at least have been the foundation upon which a reasonable doubt might be based. His Honour, appears alongside line 35, to overlook the important context of a criminal trial because he suggests that the material, that is, the evidence of Mr Stephens, if accepted would not strengthen the version, but it does not need to be accepted in that sense by the jury. All that is necessary is that the material might establish a reasonable doubt and thereby be the basis of an acquittal.

I can refer to a second aspect of what we contend is an error made by the learned judge in the Court of Criminal Appeal in determining the consequences of the course taken. At page 221 of the application book, and his Honour at this stage is dealing with events outside the hotel where it was alleged that the serious injuries were inflicted on the alleged victim, alongside line 9 and continuing, referring to Guy Stephens, his Honour said:

he would have had nothing of practical utility to say as to most of the significant questions to which I have earlier referred; and insofar as he would have said something of potential practical worth, what he would have said would not have sat comfortably with the correspondent portions of the appellant’s own evidence.

The evidence that Guy Stephens would have been able to give if he had been called as a witness was most important on the question of whether there had been, again, aggressive conduct on the part of the alleged victims of these offences, and also - - -

McHUGH J: But Mr Byrne, you are really asking us to sit as a court of criminal appeal and retry these issues of fact. These are not special leave questions.

MR BYRNE: Your Honour, there is special leave question, in our submission, on the issue of whether or not there is an obligation on the Crown, where the defence wishes a witness to be called in the Crown case, whether there is an obligation on the Crown to call that person so that he or she may be cross-examined.

McHUGH J: Yes, but that is decided in your favour, that the Crown Prosecutor erred here. The real question, as the Court said in Apostilides, is whether the conduct of the trial taken as a whole can be seen to give rise to a miscarriage of justice, and the onus must be on you to establish that.

MR BYRNE: I accept that that is the case, but in my submission, that onus can be discharged by pointing to evidence that would have been or would likely have been before the trial court if the obligation of the learned Crown Prosecutor had been properly discharged. If the witness, Guy Stephens, had been before the court there would have been evidence which would have legitimately formed the basis, in our submission, of at least a reasonable doubt about the guilt of the applicant on each of the two charges on which he was convicted.

KIRBY J: I must admit that I thought as I read this book that a factor relevant in the exercise of what happens at a trial is the fact that under the new Evidence Act there is a larger entitlement, than was formerly the case with cross-examination of a hostile witness, in the prosecutor to ask questions by way of cross-examination if the witness’ evidence does not come up to proof or appears to indicate that the witness is favourable to the defence. But how would that work in the case of the second limb of Apostilides? If the Crown does not actually examine in-chief the witness, does the Evidence Act still apply, in its terms?

MR BYRNE: Yes, it does, your Honour. All that needs to be done in order for section 38 to be triggered, as it were, is for the witness to give unfavourable evidence or inconsistent evidence.

KIRBY J: I see.

MR BYRNE: In this case, if the evidence was unfavourable to the Crown - - -

KIRBY J: I have read somewhere, it must have been in a law review or some article, that this is happening quite a lot now, that whereas in the past cross-examination of hostile witnesses was kept in firm check, but under the Evidence Act is it now happening quite a bit and the Court of Criminal Appeal seemed to think that that was not a particularly good development from the point of view of fairness to accused. Is that in any way relevant in your argument or not?

MR BYRNE: It is, to this extent, your Honour. Any - - -

KIRBY J: We cannot ignore the terms of the Evidence Act, it is written law so it has to be obeyed.

MR BYRNE: The importance of section 38 of the Evidence Act in the context of this argument is that it removes any objection which the Crown may have to calling the witness.

KIRBY J: In the sense it reinforces what the court said as to the alternative way that a prosecutor, if unwilling to call a witness because the prosecutor believes that the witness’ evidence is worthless, nonetheless the alternative limb is reinforced by the fact that if it turns out that the evidence is worthless or is unreliable, then the prosecutor has a very large power to cross-examine.

MR BYRNE: Much broader powers than existed before so that the obligation to observe what might be described as the second limb of Apostilides is, in our submission, much more clear now than it was before.

KIRBY J: But in fairness to the prosecutor here, she did appear to treat the matter very carefully and seriously and she had her own responsibilities and she was very transparent about the process that she took and told you and told trial counsel and the judge, so that the whole thing was done in a very correct fashion. The issue is whether there was enough attention to the second limb.

MR BYRNE: Exactly, your Honour.

KIRBY J: And assuming that there was not, whether or not that leads anywhere in this particular case.

MR BYRNE: Your Honour is precisely correct, that the attention in the trial proceedings was directed, in our submission, entirely and quite properly as your Honour, with respect, observes, quite properly but all directed towards the first limb of Apostilides. The second limb, that is, the need to call the witness so that counsel could cross-examine him, was effectively neglected by the trial court and, in our submission, equally neglected in the judgment of the Court of Criminal Appeal. That is the real complaint that is made here, that that is an important part - - -

KIRBY J: I am sorry to say this to you, Mr Byrne, but given what we can do, you tend to look for the case where you make a difference and in this case the difficulty is that even if you won with all guns blazing, your point of criticism, if it does not make a difference in the outcome of the case given the extreme intoxication of the brother and the circumstances otherwise of the case, then we do not make a difference by simply repeating what was said in Apostilides.

MR BYRNE: I accept what your Honour says in that regard but in this case if the potential impact of the witness, Guy Stephens, had been properly assessed and its consequences on the likely verdict properly assessed - what Justice Sully found was that his version was consistent with that given by the appellant, that would at least establish - - -

KIRBY J: Yes, but it was the version of a person who (a) was a brother, (b) had made statements at the time, and (c) was extremely intoxicated, who had been drinking an enormous amount, almost unbelievable to a person like me.

MR BYRNE: Yes, the quantities were enormous.

KIRBY J: Enormous.

MR BYRNE: Whether that itself was accurate is perhaps a question of validity. The quantities that he was said to have ingested would normally leave a person unable to be standing up, I would have thought.

KIRBY J: If not dead.

MR BYRNE: Yes, but the difficulty - - -

KIRBY J: It is a poison, alcohol is a poison taken in such quantities.

MR BYRNE: One of the difficulties was that the versions given by the brother of the potential witness and by the applicant in this case were in fact quite different. The version given by the brother in important respects supported the version given by the applicant, although it did not really assist the version given by his brother. Those are the submissions we would wish to make.

McHUGH J: Thank you.

KIRBY J: Perhaps Mr Smith has to have his attention drawn to that second limb.

McHUGH J: We need not hear you, Mr Smith.

It is important, as counsel for the applicant pointed out, to keep in mind that this Court’s reasons in R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 577 deal not only with the duty of the prosecutor to call and examine witnesses relevant to the issues in a criminal trial but also to call a witness named on the indictment who is available and sought by the defence to be called so that he can be cross-examined by the defence and then, if necessary, re-examined. However, even if that course should have been adopted at the trial in this case, we are not convinced that the omission of the prosecutor resulted in any miscarriage of justice in this case. We see no other issue warranting the grant of special leave to appeal.

Accordingly, special leave to appeal is refused. The Court will adjourn to reconstitute.

AT 11.30 AM THE MATTER WAS CONCLUDED