Hoy v The Queen [2005] HCATrans 883 (26 October 2005)

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Hoy v The Queen [2005] HCATrans 883 (26 October 2005)

Last Updated: 4 November 2005

[2005] HCATrans 883

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P9 of 2004

B e t w e e n -

AMANDA KAYLENE HOY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 2005, AT 11.04 AM

Copyright in the High Court of Australia

MS A.G. BRADDOCK, SC: May it please the Court, with my learned friend, MS W.F. BUCKLEY, I appear for the applicant. (instructed by Legal Aid Western Australia)

MR K.P. BATES: May it please the Court, I represent the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ: Yes, Ms Braddock.

MS BRADDOCK: Your Honours, this is a matter in which there is only one ground which remains to be pursued. I trust your Honours may have been appraised of that fact previously.

GLEESON CJ: Yes, thank you.

MS BRADDOCK: It is ground No 2 which is the corroboration ground and in support of that I would seek leave to rely upon supplementary submissions which have been recently caused to be filed and a short substituted appeal book dealing with only the matters in this area.

GLEESON CJ: Thank you. The relevant parts of the directions are at pages 108 and 109, are they, of the application book?

MS BRADDOCK: Your Honours, there is a very lengthy direction. The direction commences at page 106, in fact, concerning the accomplice witness Davis. To say which are the relevant parts is difficult to be absolutely precise but, yes, on page 107, if one were trying to isolate where in fact error occurred, I would say there in specific point arises the point at which one sees the glaring omission of the judge to tell the jury that this man Davis could have been brought back and re-sentenced had he not gone through with his part of the bargain.

On page 108 there is the reference – a most unfortunate reference, in my respectful submission – to the description by the trial judge of the accomplice witness as doing something “courageous and honourable and decent - - -

GLEESON CJ: Just let me pick that up.

MS BRADDOCK: It is at about point 26, your Honour.

GLEESON CJ: That is not quite fair to the judge, is it? It says that unless you decide to accept him:

because you regard him . . . as a truthful witness and accurate and reliable –

et cetera, then there is no basis on which you:

unless you do accept him in that way . . . there is no basis upon which you could convict - - -

MS BRADDOCK: Yes, your Honour. In fairness to his Honour the trial judge he made it perfectly clear that Davis was it, in effect, in that sense.

GLEESON CJ: Yes, but he is also saying unless you think that Davis is worthy, if I can use that expression, then you cannot convict these people.

MS BRADDOCK: Yes, your Honour. Then in terms of points which we would highlight in the direction, page 112, your Honours, there are two major paragraphs there, the first commencing at about line 5 or thereafter and the second immediately below that. The paragraph immediately below that, the third paragraph on that page, is the one that is quoted in the Court of Appeal by both Justice Miller and Justice Wheeler but, with respect, the passage should be read in its entirety of the two paragraphs. The difficulty with it, your Honour, is in fact understanding it at all.

GLEESON CJ: You are not complaining that he did not use the word “corroboration”?

MS BRADDOCK: No, your Honour, I cannot complain that that specific word was not used. There is no magic in it.

GLEESON CJ: No, I think Courts of Criminal Appeal have been saying for years that it is desirable to avoid that word.

MS BRADDOCK: Yes, your Honour. It is the essence of what the direction should contain. You see, your Honours, theoretically there is nothing so difficult about the provision of section 50 of the Evidence Act (WA) or corroboration with or without the use of that word. The special leave point here arises, in my respectful submission, from the misanalysis in the Court of Appeal and the disavowal or retreat from the decision of this Court in Doney v The Queen or the restrictions sought to be put upon the warning in this Court of Appeal.

All section 50 has done is remove the rule that amongst other classes of witness accomplices must be subject to a mandatory corroboration warning. It does not prohibit such a warning being given in a specific case if the judge believes it is justified.

GLEESON CJ: Historically, there was a well-known class of witness in respect of whom such a warning ought to be given and I imagine the legislature was principally aimed at removing that form of discrimination.

MS BRADDOCK: Yes, your Honour, that is right, and it is as if almost there has been one category of case that concerned sexual offence type witnesses.....age or not and gone down one route to this Court’s decision in Longman and the considerations that flow from there. This is, in fact, like the other branch of the major trial problem of suspect or difficult witnesses, that is to say, accomplices, prison informers and the like.

GLEESON CJ: Yes, I think there was a view taken in some parts of the country that the law should move on from regarding any particular stereotype of person as requiring corroboration.

MS BRADDOCK: I think your Honour might well say that. In fact, one might go further and to say that is now the perceived wisdom and flies in the face of in fact the wisdom of trial judges over many, many generations but in fact there are some witnesses that although one might conceive of an individual witness, though with accomplices it is quite difficult to exercise imagination in that regard, an accomplice witness that would not be required to be the subject of some form of warning, the idea is, yes, do not put all one class of witnesses in a box and have a standard, rigid warning.

GLEESON CJ: We gave a decision a few months ago in relation to an accomplice witness where we said no warning was required because the evidence of the accomplice, as I recollect it, was supportive of the accused.

MS BRADDOCK: Yes. Does your Honour have in mind the decision – is it Jenkins?

GLEESON CJ: A Victorian case.

MS BRADDOCK: Yes, your Honour, Jenkins.

GLEESON CJ: Yes, that is right.

MS BRADDOCK: Obviously, no warning is required if the evidence is not in contest and that obviously would apply whether one was within the State of Victoria, Western Australia or under the Evidence Act (Cth). One could not think of a situation where a warning was more justified than the case in this instance.

GLEESON CJ: Justice Wheeler agreed with you, did she not, on that point?

MS BRADDOCK: In essence yes, your Honours, but then she went on to rationalise and meditate upon the nature of corroboration and the warning in a way that my respectful submission is will prove to come back to haunt the Court of Appeal if applied verbatim in courts.

GLEESON CJ: Where do we find the part of her reasoning that you are concerned about?

MS BRADDOCK: Your Honours, if one goes to page 264 of the application book and at paragraphs 24 and 25 of her Honour’s reasons therein. At paragraph 23 she starts in general terms to look at categories of cases involving accomplices and the type of evidence where it might be necessary to give explanation to the jury. She then proceeds at paragraph 24 to talk about what I think she regards as a sort of middle category where there is neither no evidence that could be remotely considered corroborative or clear corroborative evidence,so in the middle where she says she thinks there might be:

danger in placing too much emphasis –

on corroboration where the:

corroborative evidence . . . is relatively weak –

and she says this, your Honours –

in the sense that one would not expect a jury to consider it on its own to be sufficient to justify a conviction.

With respect to her Honour there is very little evidence that one would ever have as a way of corroboration. If it justified a conviction it would be the evidence of the matter or to justify the conviction without the accomplice. That is a matter that has been clearly stated in many authorities down the years. She then goes on to speak of the traditional warning and then says that the danger of the warning is that the jury is distracted by the definition of “corroboration” or diverted. Of course, the answer to that would have to be, (a) you may not be using the word “corroboration” in terms and (b), if properly directed, the jury should be able to work out what was relevant in the particular case.

It appears, therefore, that she is effectively saying, well, maybe it is too difficult or dangerous in a particular category of case and backing off from that. In paragraph 25 on page 265 of the application book she then goes into a further analysis of evidence, corroboration or supportive evidence which might be described as weak and a form that is described as stronger. The weak she describes as coming:

from independent evidence which merely tends to confirm aspects of an accomplice’s evidence –

versus:

stronger form of support in evidence which independently of the accomplice directly implicates the accused.

GLEESON CJ: I thought that what she said in paragraph 27 is rather important.

MS BRADDOCK: Yes, your Honour. Her Honour, I think was there being somewhat indulgent to this particular summing-up.

GLEESON CJ: Some judges have pointed out in the past that a summing-up to a jury is an exercise in communication and the object of the judge is to get across to a particular jury particular kinds of ideas and if you looked at what is written on the page you might be misled if you set out to treat it as though it were a written exercise.

MS BRADDOCK: Indeed, yes, your Honour. One would not pass over the summing-up to a jury with the sort of scrutiny that your Honours would give to our submissions in a case.

GLEESON CJ: No.

MS BRADDOCK: However, it must be, even when reduced to the transcript, comprehensible in linguistic – in English it must be understandable and with respect to the trial judge that passage I mentioned earlier on page 112, if one simply reads it with, as it were, a juror’s mind it does defy actual absorption - - -

GLEESON CJ: That is the point, the jurors do not read these things at all.

MS BRADDOCK: They have to listen to it.

GLEESON CJ: Nobody gives the jury a record or a transcript of the summing-up.

MS BRADDOCK: Of course, your Honour. How it was said, et cetera, matters that we cannot read from the transcript are relevant but, your Honour, in this case one has to bear in mind the jury were engaged with the summing-up for a period approaching a day and three-quarters. This was a very, very long direction. Some would say unnecessarily lengthy.

GLEESON CJ: The other thing, we do not ordinarily have, do we, and we do not have here, a transcript of counsel’s addresses?

MS BRADDOCK: We certainly do not have it here and it is not normally given except on special request.

GLEESON CJ: It is sometimes easy to overlook the fact that summings-up of judges to jurors follow two very lengthy addresses.

MS BRADDOCK: And if that were the case one would have thought the shorter the better as long as the necessary directions are given.

GLEESON CJ: Yes.

MS BRADDOCK: One can detect, your Honour, to be fair, in these passages that are relevant to the corroboration point that his Honour is referring to the arguments for and against that are being put by counsel. With respect to his Honour, a lot of that concerns matters of non-corroborative, non-independent evidence, does it match with this, some things cut both ways.

It is a very lengthy direction on matters going to the credit of the witness and then there are some passages concerning what might be regarded as independent evidence and it all is subsumed into this very lengthy direction and it fails to distinguish between - perhaps as Justice Wheeler might have done – that effectively all these matters of detail which you may or may not think support the accomplice witness, or some of them, may cut the other way together with evidence that is independent of and implicating which falls into a different category.

Moreover, whilst I think it might be said you can use evidence that is of that character that we would call classically corroborative evidence in support of the credibility of the accomplice witness, the corollary is not necessarily true. That is to say, you cannot just because you have corroboration, take an accomplice witness that you would not otherwise find worthy of belief. It has to be both. You do not get to the corroboration until you have something worthy of being corroborated.

GLEESON CJ: The essence of what you are trying to convey to the jury, I suppose, is the danger that may not be obvious to them that an accomplice has a potential interest to minimise his own participation and perhaps thereby to maximise the participation of others and the consequent importance of looking for material independent of the accomplice that supports what the accomplice is saying. That is the essence of what you are trying to get across?

MS BRADDOCK: That is correct, your Honour, and it has to be very clearly done without, we would say, any form of dilution, which are the words used by Justice Parker in one of the cases in the list, Foo, which is basically a case where there was clearly no corroboration at all and to go down that road Justice Parker said would not have been necessary in those circumstances, but he was doing that in a case where he said there was clearly no corroborative type evidence and there was an undiluted, otherwise appropriate warning.

The problem with this case which was the one that the Court of Appeal was ready to note but then to, as it were, pass over, is the fact that this witness was liable if he did not, as it were, follow through on what he had undertaken to do and give evidence against his –not co-accused but his fellows in the wilful murder. Not only was the accomplice the principal actor, or one of the three principal actors, he had been sentenced, had received the most lenient sentence for a wilful murder and could have been brought back to the court for resentencing if his evidence did not, as it were, accord with what he had told the authorities on previous occasions or his statements to the police.

CALLINAN J: Ms Braddock, that last paragraph on page 108 might be an antidote to any of the imperfections that you say are present in the summing-up. It is a very powerful direction about the dangers, is it not?

MS BRADDOCK: It is, your Honour, yes, but there is no doubt - - -

CALLINAN J: And an antidote, perhaps, assuming what you say is right about the other things, an antidote to them.

MS BRADDOCK: That, your Honour, is correct. It is quite arguable that Justice Murray believed that he was giving a corroboration warning. Justice Miller in the Court of Appeal thinks that he was not but I think it is arguable that he might have been under – intended to do, whether it came out in the end to be a full warning or not, but it is quite marked.

GLEESON CJ: It is just:

I warn you . . . that it is dangerous to rely upon him.

CALLINAN J:

hesitate long and scrutinise him and his evidence very carefully –

he is a confessed wilful murderer . . . other disreputable aspects of his character. He’s a user of illicit drugs, a trader in drugs, a cheat, a liar.

MS BRADDOCK: There was nothing good to be said about this witness. The only thing that one would wish to have added - - -

GLEESON CJ: Justice Murray obviously did not adhere to his mother’s admonition that if you cannot say anything nice about somebody you should not say anything at all.

MS BRADDOCK: That, indeed, is correct but what was distracting was his Honour’s comments that in receiving the most lenient sentence that was a prerogative of the court - this is on pages 105, 106 and 107 – but that in fact that is a distraction. It is quite irrelevant. The point is that he might be brought back to be resentenced. Under what provision the jury did not need to be told but that that was a further – he was still under a significant inducement at the time he gave evidence. That is one matter that may - - -

CALLINAN J: There was no application for a redirection to that effect, was there?

MS BRADDOCK: Your Honours, in terms, I do not know. I do not have in the application book, neither have I been able to secure the portion of transcript that deals with the period after the jury retired until verdict. There appears to have been an hour and a half, maybe, of lengthy discussion between the Bench and counsel but I do not have a copy of that transcript. To come back to the Court of Appeal, the other difficulty and the reason why this Court may wish to consider the grant of special leave is the statements by Justice Miller to the effect that the existence of section 50 disposes of the point that in effect there was no requirement to give a corroboration warning. This is at page 341 of the application book, paragraph 198.

It may be in part because of the way the matter was argued in the court below. Clearly, there was no rule of law requiring a corroboration warning but if it was justified to give such a warning then it was required. Justice Miller perhaps in simplifying that matter stated this at 341 at about 20:

It follows that references to the need for and content of a corroboration warning in relation to evidence of an accomplice (see for example Khan v R [1971] WAR 44 per Burt J at 53) are irrelevant. Likewise, reliance upon explanations of what the essence of corroborative evidence is where such a warning is required (see
for example Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 211) is of no relevance to the circumstances of this case.

With respect, your Honours, that cannot be right. The considerations of what underlies a proper warning in accomplice cases and the authorities that go with that are not rendered irrelevant by section 60 if the warning is justified. A warning should be justified for the particular case in terms that are relevant to the particular case but in a case such as this clearly, I would suggest, all those matters that are previously entertained are that the courts in relation to corroboration are distinctly relevant.

That passage, your Honours, is a matter that, given the frequency with which accomplice or prisoner evidence comes before trial judges, is likely to come back to haunt the Court of Appeal. It flies in the face of authority that have previously been, in this State - - -

GLEESON CJ: I think we understand that, thank you, Ms Braddock.

MS BRADDOCK: Subsequent – in fact, Justice Murray with Justice Malcolm in Chew’s Case and Justice Miller in the case of Lambley clearly appreciated the ongoing relevance of corroboration. Something went awry in this particular instance.

GLEESON CJ: Thank you, Ms Braddock. Yes, Mr Bates.

MR BATES: May it please the Court. In our respectful submission, the Court of Criminal Appeal, as it was then known, correctly concluded firstly that the learned trial judge was not in error in failing to give a corroboration warning in relation to the evidence of the accomplice Davis, and, secondly - - -

GLEESON CJ: What does that mean? On the bottom of page 108 he says:

I warn you about Davis, that it is dangerous to rely upon him. It is obviously so. The law regards it as so and I warn you that it is so.

He is a crook. Now, that is a warning of some kind, is it not?

MR BATES: Yes. All we are saying there is that - - -

GLEESON CJ: What do you mean by the expression, and what did Justice Miller mean by the expression “a corroboration warning”?

MR BATES: A corroboration warning in the traditional sense that you cannot convict on the uncorroborated evidence of an accomplice unless there is - - -

GLEESON CJ: You are not suggesting, are you, that the word “corroboration” has to be used?

MR BATES: No, I am not suggesting - - -

GLEESON CJ: Courts of Criminal Appeal have said repeatedly that it is a dangerous word to use because jurors may not understand what it means.

MR BATES: That is correct. We are not suggesting that at all. In this case what we say is that the lengthy direction that was given about the potential dangers of acting on the evidence of accomplice Davis was fair and balanced and sufficiently covered all the matters that needed to be covered and brought home to the jury the dangers which were inherent in the evidence of the witness Davis.

The learned trial judge gave a comprehensive direction to the jury as to how they should approach the evidence of the accomplice Davis and we say that matter covered all the matters that needed to be covered and brought home to them all the matters that they needed to have regard to in assessing the evidence of the accomplice Davis. As has been indicated, the learned trial judge brought to the jury’s attention that the Crown case was dependent upon the evidence of Davis and without Davis there was in fact no case, that Davis was an accomplice, and in those passages at the bottom of page 108, going over to 109 - - -

GLEESON CJ: I have to say I have difficulty understanding your first submission. On page 108 he uses the words “warn” and “danger” repeatedly. Then, on page 111 he said:

having regard to Davis being, and the sort of person he is, it is dangerous for you to rely upon him unless –

certain things are fulfilled. Then he goes immediately on page 112 to say:

you may feel more comfortable about relying upon Davis and accepting him as a credible witness if there is independently of him evidence which will support the truth and accuracy of what he says –

If that is not a corroboration warning, I do not know what is.

CALLINAN J: Particularly if you add what the Chief Justice said, what appears in page 108, he has a motive for untruthfully implicating other persons. It could not be clearer that it is a corroboration warning.

MR BATES: Yes, we accept that. All we were indicating earlier was that – we accept that he does not have to use the word “corroboration” and that a corroboration warning was given and given in very strong terms that it was dangerous to accept the evidence of Davis without some supporting material and the jury needed to scrutinise his evidence with great care indeed and what his Honour the learned sentencing trial judge did was to refer to general matters about Davis at pages 108 and 109 and going over to 111 and 112 and then the learned trial judge indicated that there was evidence which had the capacity to support Davis and evidence which was consistent with what Davis said had occurred.

The learned trial judge then pointed out that there were two types of such evidence. First, the evidence which implicated the applicant in the commission of the offence, and this was post-offence conduct and lies in an attempt to procure a - - -

GLEESON CJ: But the warning that Justice Murray gave went beyond what is often regarded as a comprehensive warning. He did not say it is dangerous to rely on him unless his evidence is corroborated. He said, “I tell you it is dangerous to rely on him” and he then said, “but if you think his evidence is to be believed you are entitled to convict and you are entitled to think his evidence is to be believed, for example, if you find independent support of it”.

MR BATES: That is correct. He indicated that there were two types of independent support. There was independent support which implicated the applicant in the commission of the offence and there was also other evidence which, whilst not implicating the applicant in the commission of the offence, was supportive of the account that Davis gave, so his Honour indicated that there were those two types of material in the case and he identified that material for the jury.

It was a very comprehensive direction and it spanned a number of pages, commencing at 106 going through to 134 and his Honour went into great detail in going through the various pieces of evidence which supported Davis and that which did not and indicated that some of the evidence cut both ways. In our respectful submission, the direction on this aspect is extremely comprehensive and the rival submissions of the parties were adverted to.

If I can deal with the question of the comment about the giving of evidence by Davis being “courageous and honourable”. In relation to those
comments the Court of Criminal Appeal correctly concluded that such comments that Davis was acting courageously, honourably and decently overstated the position that they did not occasion any miscarriage of justice when read in context with the very strong direction on the dangers of relying upon the evidence of Davis without the most careful scrutiny. That was a point made by your Honour Justice Callinan in a recent exchange.

Also Justice Wheeler pointed out that whilst recognising that the learned trial judge had overstated the position she was of the view that it was necessary that something be said to dispel the impression that there was something discreditable to the witness and/or the investigating police in the witness receiving leniency. My learned friends raised section 37A of the Sentencing Act and in that regard we accept that it may have been desirable to inform the jury of the provisions of section 37A of the Sentencing Act that Davis, if he did not give truthful evidence, was liable to be brought back and resentenced.

GLEESON CJ: Did counsel ask for that to be done? Did trial counsel for the accused ask for that to be done?

MR BATES: I am not aware of whether trial counsel for the accused did ask for that to be done.

GLEESON CJ: The reason I ask the question is that it is a bit of a mixed blessing, is it not, for trial counsel for the judge to tell the jury that there are people closely watching the truthfulness of this man’s performance?

MR BATES: Yes, that is correct, your Honour, because it cuts both ways.

GLEESON CJ: Yes.

MR BATES: It does cut both ways, but the Court of Criminal Appeal correctly concluded that whilst it may have been desirable there was no error and no miscarriage of justice in a failure to do so and the Court of Criminal Appeal pointed out that the direction in relation to Davis could not have been stronger and in our submission there is no miscarriage of justice in relation to the direction that was given by the learned trial judge in respect of Davis. They are the submissions we would make on behalf of the respondent.

GLEESON CJ: Thank you. Yes, Ms Braddock.

MS BRADDOCK: The matter that is, with respect, different and important in relation to a corroboration warning is that you have, firstly, to have the witness to be corroborated be worthy of belief and in addition to that something independent that implicates the accused in the offence
committed. That is the point that does not come out clearly in this direction.

That is the point that will recur in relation to the question of any warning required in cases of accomplices post section 50 and that is why it is important that this disavowal of corroboration and the deeming of it being irrelevant in Justice Miller’s remarks and the reanalysis by Justice Wheeler, in fact overrides whether objectively, one might say, that this summing-up might have got the point over that this was a witness that you have to be very, very careful about scrutinising, that maybe that it was a warning in that sense, but where do you go from that warning? If you may use it, under what circumstances and that is what does not come out clearly and has gone awry in the Court of Appeal. May it please the Court.

GLEESON CJ: The proposed ground of appeal in this case concerns the adequacy of the directions and warnings given by the trial judge to the jury in relation to the evidence of the accomplice Davis. The trial judge warned the jury in most emphatic terms of the danger of relying on the evidence of Davis and his Honour directed the jury in terms appropriate to the circumstances of the particular case to the importance of looking for evidence which, independently of the evidence of Davis, supported the truth and accuracy of what he said.

Without accepting the correctness of all of the reasoning in the Court of Criminal Appeal, we think that, having regard to what was said by the primary judge in his summing up, the ultimate prospects of success of an appeal are insufficient to warrant a grant of special leave. The application is dismissed.

AT 11.39 AM THE MATTER WAS CONCLUDED