Parry v The Queen [2003] HCATrans 498 (2 December 2003)

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Parry v The Queen [2003] HCATrans 498 (2 December 2003)

Last Updated: 12 December 2003

[2003] HCATrans 498

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S64 of 2003

B e t w e e n -

ROBERT OWEN PARRY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 2.03 PM

Copyright in the High Court of Australia

MR J.W. CONOMOS: If the Court pleases, I appear for the applicant. (instructed by J.P. Leong & Co)

MR G.E. SMITH: If the Court pleases, I appear with my learned friend, MS N.J. ADAMS, for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

CALLINAN J: Yes, Mr Conomos.

MR CONOMOS: Your Honours, in this application the Court has the benefit of a very comprehensive judgment in the Court of Criminal Appeal outlining the facts. It is pertinent to proceed to page 169 of the application book, where the evidence of Ms Russell is dealt with in some detail. Your Honours will see that this witness made a statement on 4 October 1998, some two days after the incident which gave rise to the homicide. That was a false statement on her own admission. She gave evidence before the New South Wales Crime Commission on 17 February 1999. On 16 September 1999 she made another statement to the police. In November of 1999 she gave evidence in committal proceedings, and then finally she attended an identification parade of the applicant Parry on 11 October 1999. That completes that part of the narrative at page 172.

The situation is that very early in the piece it was obvious during this trial that she was not a truthful witness, so much so that finally, after stops and starts, she was declared adverse pursuant to section 38. She was given the benefit of the audiovisual link, and at one stage she was charged with contempt by the trial judge because of her attitude, which is manifested comprehensively in the application book. It was obvious that she was not a witness of truth, and the Court of Criminal Appeal came to that conclusion even though ultimately the court confessed and avoided that conclusion in seeking to reconcile her evidence with what that court perceived to be objective facts in relation to the man Parry.

The situation of the trial was difficult, there is no doubt, for the trial judge because there were more than one accused and this witness presented special problems - - -

CALLINAN J: Mr Conomos, there was some evidence independent of this witness to implicate your client, was there not?

MR CONOMOS: Independent of this witness?

CALLINAN J: Yes.

MR CONOMOS: Yes, there was.

CALLINAN J: He had a distinctive ponytail, is that right?

MR CONOMOS: He had a distinctive - - -

CALLINAN J: And went by the name of Blood?

MR CONOMOS: Blood, yes.

CALLINAN J: And other people heard him call Blood, what, shortly before the murder, is that right?

MR CONOMOS: Well, that is not as clear as it could be. I did not do the trial, your Honour, but it is my trial now. What other evidence there was, there was a fingerstall found at the premises at Levitt Street, Wyong and then there was a glove found in the near vicinity of the premises. If I may say so, they were the four pieces of evidence which may have been considered to be independent of this witness’s evidence.

CALLINAN J: Well, there were no distinctive tattoos, were there?

MR CONOMOS: Your Honour, the situation is this, and I do not want to burden this Court with going through the application book as this is not the appeal. He had a distinctive tattoo, and that was picked up by the Court of Criminal Appeal when I called him to give evidence at Newcastle where the court sat. Then when the court played the video showing the line-up, the court picked it up itself and incorporated it into these reasons in copious detail. As I have said, in terms of facts the judgment is very detailed. It is not given to, as it were, being exiguous. But the plain nub of the matter, your Honours, is this. At the end of the day this Crown Prosecutor, at page 182, if you could kindly turn to it, said this to the witness – and please bear in mind this is at a time when she is toing-and-froing - - -

CALLINAN J: This is the question, “You are frightened about giving evidence here”, is that right?

MR CONOMOS: Yes.

CALLINAN J: Well, I have heard plenty of robust cross-examinations in New South Wales. I have certainly heard questions as strong as that. I cannot understand why everybody got excited about it. She was declared hostile. Why could not the cross-examiner ask that?

MR CONOMOS: If I may, your Honour, the situation is this. In the context of where this witness stood, and in the context of what had occurred previously, for the prosecutor to put that to her would only convey one thing to the jury, that her previous evidence and the procedures that she adopted vis-à-vis the court, her attendances and her attitude, were all induced by fear of the accused.

CALLINAN J: What is wrong with that? They might have been. She could have denied it.

MR CONOMOS: Your Honour, she may have denied it, but nevertheless when a prosecutor is given leave to cross-examine in circumstances as I have indicated to your Honour, it is most inappropriate, I would submit.

CALLINAN J: Is there any authority that says - - -

MR CONOMOS: There is no authority for that proposition. I have researched it, and none was found by counsel either.

CALLINAN J: Does it occur to you then that if there is no authority for it, it was the sort of conventional question asked in cross-examination?

MR CONOMOS: All I can say to your Honour is this. I have practised in the criminal courts for well nigh on 43 years in this State, and it is the first time I have seen that asked, and I was a Crown Prosecutor for two years prosecuting for the Armed Hold-Up Squad, and I have appeared in many trials - and I know your Honour’s experience in the criminal law - and that is the first time I have struck that.

CALLINAN J: Well, it does not strike me as a question that could not properly be asked in cross-examination, particularly in the circumstances of this case, where you had had a witness shifting her versions from time to time.

MR CONOMOS: Well, she was doing a bit more than that, your Honour, as well.

CALLINAN J: In any event, let us assume for present purposes that it is an important thing and it should have been asked. Let us assume everything you say about it is right. What do you say about the other evidence that implicates your client?

MR CONOMOS: You are talking about that external evidence?

CALLINAN J: Yes.

MR CONOMOS: Your Honour, that in itself, it is submitted, would not be sufficient. Even the DNA evidence which came with the fingerstall, and there was also – I should not have misled the Court – there was a balaclava found in the car which, on DNA analysis, implicated this applicant Parry. I omitted that and I apologise.

CALLINAN J: It is not a bad piece of evidence, is it?

MR CONOMOS: No, it is not a bad piece of evidence, your Honour, but bearing in mind the context in which - these people were part of a bicycle club, they were people who used other people’s clothing. In itself that would not be cogent evidence. The real pivotal evidence in this case was that of the witness Russell.

CALLINAN J: The lesson to be learned is be careful where you leave your balaclava lying around.

MR CONOMOS: Well, the best lesson is, your Honour, he should not have had one to start with. Your Honour, that is the situation with respect to that, if I can develop on it if I may, please. The Court of Criminal Appeal wrestled with rule 4 and came to the conclusion as counsel had not taken the point dealing with the identification evidence in this case because the Court of Criminal Appeal came to the conclusion, even though they accused me of nitpicking, that the evidence and the summing up of his Honour in dealing with the identification evidence was not in accordance with Domican.

The Court of Criminal Appeal found that as counsel had not sought a direction along those terms in the manner that I put it to the court on appeal, that rule 4 should present an obstacle to that matter being litigated. Then the court went on to assert that if the court was wrong in relation to rule 4, that the proviso, section 6(1) of the Act, presented a formidable hurdle. The court set out all of the relevant principles of law in that judgment. But at the end of the day, your Honours, whether it is rule 4 or whether it is section 6(1), one comes back to the inquiry whether it is a lost chance of an acquittal or it is a serious miscarriage of justice in either test. The Court of Criminal Appeal relied on Moussa and my friend, the Crown, has provided an extract from the judgment of Mr Justice Mahoney, as he then was, of the Supreme Court.

At the end of the day it is submitted on behalf of the applicant that the way this trial proceeded, the court should have allowed the matter to be ventilated in the Court of Criminal Appeal and should not have sheeted home to this applicant whatever frailties there were in his representative at the trial and, second, that this did represent a serious miscarriage of justice in the way that this trial proceeded, bearing in mind the background involved and the failure of his Honour to deal with the identification evidence as set out in Domican and subsequent decisions of this Court.

Now, your Honours, they are all fairly cogent matters, bearing in mind the nature of the charges, charges of homicide. It is submitted that this Court, in the interests of justice and in the interests of the construction of the various rules and statutes, would intervene and grant special leave to appeal.

Your Honours, I could go through the application book in some detail, but it has obviously been read and it would not be appropriate to do that. But when one reads the evidence of Ms Russell, one gets the flavour that she is not the type of witness that can be reconciled. The Court of Criminal Appeal sought to do this at page 197, if I could take you there and burden you to that extent. The court says:

Undoubtedly the inconsistencies and untruthfulness in Ms Russell’s evidence meant that, at the very least, her evidence required careful and close scrutiny. However there was an obvious logic in the three main stances which she had adopted during the period which they had spanned. Her first account – the alibi – was clearly calculated to distance Mr Wall from the murder which had occurred –

and he was her de facto husband and the father of her two children –

and this was so whether the alibi was true or false.

Her second, of seeing persons whom she identified as having taken off in the car, and as having placed one or more weapons or other objects into its boot, was explicable on the basis which she had suggested, namely, of being sick of telling lies. The further aspect of this second stance, her repudiation of the alibi story was explicable on a similar basis. There was no other basis suggested for her account to the Crime Commission in February 1999. Her confirmation of this second stance, in her statement of 16 September, and in her evidence at the committal proceedings, is explicable on the basis of the break-up of her relationship with Mr Wall.

Her third stance at the trial, an important aspect of which was her assertion of a failure of memory, is itself explicable on the basis that, reunited with Mr Wall, she did not wish to further the Crown case against him or his co-accused. Concern about her unborn child would seem also to have been a factor.

And then on the top of 198 - and I will stop after this in terms of reading - it says:

Of course, there may have been other factors operating as well including possibly, fear, although there was no evidence of that. It was not a case where one could conclude that the witness was just irrational, or was saying the first thing that entered her head, or that she was a person who did not or could not have known the truth. The probative value of her evidence and her earlier statements depended very much upon an assessment of what she said, her possible motives for saying it, the circumstances in which any particular aspect of it was said, and an assessment of her demeanour.

Now, might I say, your Honours, the situation is this. The Court of Criminal Appeal was quite entitled to that analysis, but to talk about an obvious logic in the background of the way this witness presented and the manner in which she gave her evidence is, with great respect, to offend the language of logic. It might be understood and it might be rationalised in some way to some extent that this was a witness who admitted that she was a witness of no truth. She was a person that dealt with the court initially in a scant way, and she was a person who was declared adverse.

Now, against that background it is submitted, with respect, that it was not open to the Court of Criminal Appeal to use the words “obvious logic” in dealing with her evidence and seeking to reconcile the differences over a long period of time that this witness gave. Against that background, in a joint trial where she was coming and going, absent for days, and then that question by the Crown Prosecutor to her in that setting did not entitle the Court of Criminal Appeal to try to rationalise her evidence in that way. She was a most important witnesses in this case in terms of Mr Parry and the others, and the difference between Mr Parry, the applicant, and the others is he was not arrested initially, he was not arrested anywhere near the scene. It was many months later when he was arrested by the police.

Their Honours spoke about the identification parade, and that appears on 204, paragraph 267 of the application book. They saw it and they had this to say about this lady’s evidence:

The tape recording of the identification parade was admissible to rebut Ms Russell’s evidence that she chose that particular person because he looked like a bikie, and that all the rest looked like business people, or persons who had come out of a solicitor’s office. The questioning of her as to that part of her statement, wherein she had referred to seeing a tattoo on Mr Parry’s neck during the identification parade, and had also seen one on Blood’s neck on 2 October 1998, was justified on a similar basis.

Now, it is obvious that when the court saw the tape-recording for itself of the identification parade, it revealed her as being a liar and nothing more than that because the court, having satisfied itself that in fact it was a fair line-up in terms of what it could observe on the identification tape, could
only come to one conclusion: that she was a witness who could not be accepted in any way.

Now, against that background, and I am sorry that I am using that at all times, this witness rendered this trial an unfair trial to the point where special leave should be granted and the matter should be sent back for a new trial. If the Court pleases.

CALLINAN J: Yes, we need not trouble you, Mr Smith.

The application for special leave is refused. There is no sufficient reason to doubt the correctness of the conclusion of the Court of Criminal Appeal.

AT 2.21 PM THE MATTER WAS CONCLUDED