Hart v The Queen [2005] HCATrans 595 (11 August 2005)

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Hart v The Queen [2005] HCATrans 595 (11 August 2005)

Last Updated: 2 September 2005

[2005] HCATrans 595

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A1 of 2005

B e t w e e n -

SCOTT ANTHONY HART

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 11.51 AM

Copyright in the High Court of Australia

MR G.P.G. MEAD: If the Court pleases, I appear with my learned friend, MR M.J. LUTT, for the applicant. (instructed by Legal Services Commission of South Australia)

MS G DAVISON: May it please the Court, I appear with my learned friend, MS L.M. BOORD, for the respondent. (instructed by Director of Public Prosecutions (South Australia))

GLEESON CJ: Yes. Mr Mead.

MR MEAD: If the Court pleases, in summary the applicant contends in his first ground of appeal that the Court of Criminal Appeal, having admitted fresh evidence on the appeal, applied an incorrect test in assessing whether there had been a miscarriage of justice. We say that in applying the wrong test the court failed to take proper account of the whole of the evidence in the trial, of the verdicts and the fresh evidence seen against the whole background.

The reason we say that the case justifies a grant of special leave to appeal is that the court below did not apply the test formulated by this Court in Mickelberg but looked rather to the South Australian case of Van Beelen. We say that in any event there are different views expressed by judges of this Court in Mickelberg about the correct test to be applied.

In this State the Court of Criminal Appeal has on another occasion looked to Mickelberg for the principles to be applied when considering fresh evidence. That is a case of Reci which we have put in our bundle of materials, whereas as in this case, of course, the Court of Criminal Appeal looked to Van Beelen and did not refer to Mickelberg at all.

We say that there has been a miscarriage of justice because the evidence of Mr Bottroff who made the statements to which the fresh evidence relates was the linchpin of the Crown case. The prosecutor said in opening that the case would depend mainly on the evidence of Mr Bottroff. He is the only one – the prosecutor said – who was present to witness and experience what he says occurred. His credibility was crucial in the trial. The fresh evidence, taken with the evidence at the trial, has the potential to inflict fatal damage to his credibility, we say. The applicant, as a result of these convictions, is now serving a balance of a life sentence in relation to which he was on parole at the time of the alleged offences.

In our submission, the adoption of the incorrect test by the Court of Criminal Appeal means that there is a real risk that a miscarriage of justice has occurred. I will go to more detail on the first ground, but our second ground is that we submit that the Court of Criminal Appeal erred in failing to determine one of the applicant’s grounds of appeal, namely, Ground 5(iii) relating to the directions to be given by the judge to the jury on previous inconsistent statements by the same key prosecution witness.

GLEESON CJ: There is something curious when you come to compare the amended grounds of appeal with the structure of the reasons of the Court of Criminal Appeal, but can I ask you what you say about what appears in the record of the trial between pages 380 and 382 on this question of directions about inconsistent statements? I have in mind, in particular, what trial counsel said on page 380, line 25, the brief discussion with the judge that followed it and what trial counsel said on page 382, line 45 which was, in effect, please say nothing.

MR MEAD: Yes, I accept the point that your Honour puts there that although the matter was raised it was left on that basis.

GLEESON CJ: It was raised and withdrawn but counsel did not want directions on that subject.

MR MEAD: Yes. Part of the problem that arose, if the Court pleases, was that there had been a change – and this relates to one of the other aspects of the appeal – from the statement made by the witness prior to trial to the evidence he gave in the trial relating to the applicant’s background. In the trial he had given more detail about the background and he had said that the detail that he found out about the applicant’s background had been found out by him on the night of the alleged offence and that that had had an effect on his mind in relation to the events of that evening and what he thought the applicant was saying and doing.

As a consequence, it was difficult in the context of the trial to suggest to the trial judge that there should be further detail or further attention drawn to some of that evidence. It is our submission that that was one of the problems that arose in terms of the request for directions.

GLEESON CJ: There is another missing piece of information. If you look at page 451 of the application book at line 34 it is evident that when counsel, after the proceedings before the Court of Criminal Appeal, went to senior counsel and said, “Have I got any prospects of success in the High Court?”, the first thing that senior counsel asked to see, for, I would have thought, very good reason is, the transcript of the proceedings in the Supreme Court.

MR MEAD: Yes, your Honour.

GLEESON CJ: That is the proceedings on appeal.

MR MEAD: That is right, your Honour.

GLEESON CJ: We do not have that.

MR MEAD: No.

GLEESON CJ: What I would like to know is what went on in relation to this particular ground of appeal in argument before the Court of Criminal Appeal.

MR MEAD: Your Honour, the ground was maintained. It was asserted that the directions should have been given – and I must say, the argument was fairly brief, coming at the end of - - -

GLEESON CJ: I bet it was. I suppose somebody in the Court of Criminal Appeal noticed that counsel had told the trial judge he did not want the direction given.

MR MEAD: That was not specifically raised, on my recollection, in the Court of Criminal Appeal.

GLEESON CJ: Do you mean nobody pointed out to the Court of Appeal that at trial counsel had said to the judge, “Please leave it at that”?

MR MEAD: I am not sure whether counsel for the respondent might have raised that, your Honour. I concede that that may have been said. I do recall now, there was a discussion with counsel for the respondent about that.

GLEESON CJ: Having regard to what went on at trial this would have been a very difficult argument to get up on before the Court of Criminal Appeal, would it not?

MR MEAD: I accept that it was not the strongest argument that was put before the Court of Criminal Appeal, if your Honour pleases. We say that the stronger argument was the argument about whether the verdicts were unsafe and unsatisfactory but when one looks at the way the verdicts came in the trial and when one looks at the fresh evidence, and perhaps with the benefit of hindsight when one looks back to how the jury should have been directed, it is another aspect of the appeal that it was considered worth raising, particularly in the light of the knowledge gained later that the witness had gone to the police and said that the evidence he gave in the trial about a matter that he was cross-examined at length about was in fact incorrect.

GLEESON CJ: You rightly draw our attention to the fact that the Court of Criminal Appeal in its reasons did not – or at least did not specifically deal with this additional ground, but that just puts us in a position where we have to consider the merits of it.

MR MEAD: Yes. I would be asking this Court to look at that ground in the context of the ground about the fresh evidence which we say is the more significant one advanced before this Court, but the absence of a direction about a previous.....statement, in the context of this whole case, having regard to what we now know about the evidence of the key witness, we say that that subsequent knowledge does reflect on how the Court ought to consider the second ground, notwithstanding the fact that it was not pressed at the trial.

The third ground of appeal, if the Court pleases, is that we say that the use by the court below of the evidence of a complaint by the key prosecution witness to his sister shortly after the alleged offence - - -

HEYDON J: There was not a complaint, was there? She merely noticed that he was in a state of distress.

MR MEAD: Yes.

HEYDON J: He did not complain to her.

MR MEAD: No, that is right. I have put that badly, your Honour, but it is the case that she noticed something about his demeanour and evidence was given about her observations of his demeanour.

HEYDON J: In a case of violence why is that inadmissible?

MR MEAD: I would say in this case because – it may be in some cases but the problem in this case is that the key prosecution witness’s evidence was that he had left the company of the applicant at about four in the morning and his evidence was that he had then gone back to the laundromat where the incident had started out and he had remained there and he had made some phone calls and he had done some cleaning of his laundromat and then gone for a ride in his car and then, possibly on one view of the evidence, had come back into the laundromat and it was not until about 7 o’clock, I think it was, three hours after, that he made the phone call to his sister allegedly in a distressed state.

HEYDON J: Did the defence object to that evidence?

MR MEAD: No, there was no objection at the time. If I could take the Court back to ground 1 in more detail, to the issue of fresh evidence. The fresh evidence in this case was the statements made by the key prosecution witness after the verdict. He made those statements to police and prosecutors. We say it was not so much the content of the statements which was important as fresh evidence but what was particularly important was the undoubted fact that they were made and that they involved the key prosecution witness impliedly saying that he had lied at trial.

The new statements provided a completely different explanation for the writing of the letter which was in evidence as D3 to that which he had given at trial. In D3 the defence argued at trial that Bottroff gave directions to two other potential Crown witnesses as to the storyline that they should adopt in speaking to the police about altering the initial statement made by the witness, Sandra Williams. It also revealed a possible financial motivation for making the complaints against the applicant.

The court below approached the fresh evidence issue by referring to Van Beelen’s Case at paragraphs 77 and 78. We say that in looking to Van Beelen for guidance rather that Mickelberg and the cases that precede and succeed it we say that the Court of Criminal Appeal fell into error. We say that the correct test is that set out in Mickelberg [1989] HCA 35; (1989) 167 CLR 259 and particularly in the judgment of Sir Anthony Mason, the then Chief Justice, at page 273 where his Honour said:

It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.

HEYDON J: But is that really different from the Full Court in Van Beelen?

MR MEAD: In our submission it is, your Honour, because the test in Van Beelen is that the evidence must be of such substantial importance and of such cogency, plausibility and relevancy when considered with the other evidence given at the trial, that the result would have altered the minds of reasonable men to remove the certainty of guilt which the former evidence produced. We say that when one is comparing a test that says “significant possibility” with one which says that the evidence would have altered the minds of reasonable men – that the test applied in this case was a much higher test, a much harder test to - - -

HEYDON J: Yes, but would have altered the minds of reasonable men to remove the certainty of the guilt, that merely involves falling just below a beyond reasonable doubt standard, enough to depress the state of thinking of the jury to that extent.

MR MEAD: Yes, I accept that, your Honour, but in the terms in which it is – the other thing I would say about the adoption of the Van Beelen test is that it led the court in this case to look at cogency and plausibility and so forth of the fresh evidence, whereas in our submission, the importance of the fresh evidence was that the statements had been made – that subsequent statements had been made, not so much the plausibility or credibility of those statements, because there was a large question mark over those, in our submission, but the importance was the fact that he had gone along to the police after the trial and said, “I didn’t tell the whole story in the trial. I gave an explanation which was not correct about why I wrote this document”.

We say that rather than going to the question of whether there was a significant possibility that the fresh evidence would have led to an acquittal the court digressed into a consideration of cogency, plausibility into relation to the content of the statements when the importance of the evidence was the fact that the statements had been made and that a police officer would be able to come into the court and say, “This man made a statement to a contrary effect to that which he had said in the trial”.

We say that the test applied by the court below was a more stringent test than the significant possibility test postulated in Mickelberg. We say that the fact that – as subsequently appeared – the key witness had made a false statement at the trial was a fact that was never before the jury and we say that the absence of that fact from the evidence of the trial means that the trial was not a fair trial and that is the kind of consideration that was entered into in Ratten’s Case.

It is our submission that the Court of Criminal Appeal erred in concluding that even with the fresh evidence it is unlikely that the jury would have reasoned in such a way as to affect adversely their view of Bottroff as a witness. In our submission, the verdict of acquittal in count 1 shows that they had already to some extent formed adverse views about Bottroff as a witness.

In reassessing the evidence, as it was bound to do, the Court of Appeal did not identify the evidence on counts 2 and 3 on which the convictions were based and did not identify how it could be that the evidence on count 1 which formed the background against which counts 2 and 3 were to be considered could have been rejected by the jury which nevertheless went on to convict on the latter two counts.

A finding that count 1 was not proved beyond reasonable doubt raised real questions about the evidence of Mr Bottroff. We say that the fresh evidence which involved an admission that he lied at trial raised the significant possibility that the jury might reasonably have acquitted on the
whole of the evidence, including the fresh evidence. In summary, then, the special leave point raised is the divergence of views in the High Court and in the Court of Criminal Appeal about the correct test to be applied in cases involving fresh evidence.

In this Court a number of judges have said that the appropriate formulation is the significant possibility test but there is the other line that says the test is whether a jury would have been likely to entertain a reasonable doubt. We say that the fact that the Court of Criminal Appeal did not, in effect, adopt either of those lines but went to Van Beelen’s Case instead raises a point of special leave, particularly in the circumstances of this case, given the effect that the convictions have had on this particular applicant.

I have already put submissions to the Court about the second ground of appeal in relation to the inconsistent statements and I will not advance anything further than that other than to emphasise that we say that that ground assumes some more importance with the subsequent information, that is, the fresh evidence, and should be seen in the light of that first ground of appeal.

As I have said, also, we submit that the use of the evidence of the distress as conveyed to the key witness’s sister, was incorrect, was not supported by authority, and particularly, as I have said to the Court, we say that that was, among other things, because it was not immediate. Had the communication of distress been made immediately there may have been a basis on which that evidence could have been used but, as it was, it was quite some time after the events and we simply submit that it should not have been used as a way of bolstering the credit of the key prosecution witness.

GLEESON CJ: Thank you.

MR MEAD: If the Court pleases.

GLEESON CJ: We do not need to hear you, Ms Davison.

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter. The application is dismissed.

We will adjourn for a short time to reconstitute.

AT 12.14 PM THE MATTER WAS CONCLUDED