Smith v The Queen [2006] HCATrans 346 (21 June 2006)

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Smith v The Queen [2006] HCATrans 346 (21 June 2006)

Last Updated: 26 July 2006

[2006] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B7 of 2006

B e t w e e n -

LORI DAYON SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2006, AT 4.03 PM

Copyright in the High Court of Australia

MR A.J. RAFTER, SC: May it please the Court, I appear with MS S.M. RYAN for the applicant. (instructed by Legal Aid Queensland)

MR M.J. COPLEY: If the Court pleases, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

KIRBY J: Yes, Mr Rafter.

MR RAFTER: This application for special leave raises a point of fundamental importance concerning the admissibility of inculpatory statements made by a third party. There is also in this case a sense of individual injustice by reason of the conviction of the applicant of murder, thereby serving a mandatory sentence of life imprisonment, whereas - - -

HEYDON J: There is no ground directed to that problem though, is there?

MR RAFTER: No, because it is a sense of individual injustice. I cannot submit, particularly in light of Osland v The Queen and other cases, that there is an actual injustice as a result, but lurking beneath the case itself is the potential for a sense of individual injustice.

KIRBY J: Yes, we understand your lurking argument. It still is not as good as an actual one.

MR RAFTER: No, I understand that, and the actual argument concerns the admissibility in Queensland of hearsay statements that are exculpatory of the accused on trial.

HEYDON J: What statement was tendered, the rejection of which you complain about?

MR RAFTER: Well, I do not complain about the reception of the evidence because it was led by the defence in cross-examination. If one goes to the record at page 83 in the judgment of Justice Keane, one sees an extract from the cross-examination of the investigating detective at paragraph [27]. That is what was led in the cross-examination in this trial. Now, that was part only of what was contained in the interview with the co-offender, Corry. The full - - -

HAYNE J: But that was all that was sought to be led.

MR RAFTER: That was all that was sought to be led. There was no ruling - - -

HAYNE J: So there is no wrongful rejection of evidence. This is it.

MR RAFTER: This is it.

HAYNE J: Yes.

MR RAFTER: Now, the full text of what was actually said by Corry appears on the preceding page of the application book at page 82.

HAYNE J: What does that matter? If there is no attempt to lead what else Mr Corry said, what does it matter?

MR RAFTER: One of the problems in this particular case is that the status of hearsay statements is attended by a degree of uncertainty in Queensland and the authorities that we have set out in the written outline from pages 99 to 102 demonstrate the different approaches taken in the different States. The uncertainty attending the reception of the evidence perhaps led counsel to be cautious in the evidence that was actually led.

HAYNE J: Maybe so, but what issue would properly be tendered for determination by the court when there is no asserted wrongful rejection of any evidence tendered?

MR RAFTER: The ground concerns the non-direction of the jury concerning an arguable defence that arose in light of that evidence and there was - - -

HAYNE J: In light of which evidence, Mr Rafter?

MR RAFTER: The evidence led and set out at paragraph [27] on page 83 and also the content of a letter tendered in the prosecution case which is set out at paragraph [29].

HAYNE J: Yes.

MR RAFTER: The combined effect of all that was, in our respectful submission, to raise the same defence upon which Corry succeeded in his appeal, namely self-defence against a provoked assault.

HAYNE J: But the question is whether what appears in paragraph [27] plus the letter raised self-defence.

MR RAFTER: That is one of the questions. Now, that was answered against the applicant in the Court of Appeal. The court held that it was insufficient to raise that defence. Our argument is and must be that it was sufficient to raise it. So one needs to look at the detail and, in our respectful submission, particularly when you look at the content of the letter at paragraph [29], “I’m really sorry about everything the finding out what I’ve bin [sic] charged for must have shocked the shit out of ya [sic] but I tell ya babe, he should have stayed away and not done them things to you and threatened my life that day”, et cetera, and then it continues on the following page. When seen in conjunction with the extract in the last five lines of paragraph [27], that, in our respectful submission, did indeed raise self-defence against a provoked assault.

HEYDON J: Unfortunately, I have to tell you I flatly disagree. I mean, it is just a question of whether one thinks there is material there to raise the issue or not. I cannot see how there is. Whereas I can see material raising the issue in the last few lines of the part of the interview set out in paragraph [25] that was not put to the officer.

MR RAFTER: It is only those additional words commencing after the word “sleeve” that one sees in paragraph [25], “I was more worried about him getting it off me and attacking me with it”, et cetera, which starkly raises a self-defence question, of course I accept that, your Honour, but self-defence can be raised by inference as well and the argument for the applicant here is paragraph [27] in conjunction with paragraph [29] raise the defence by inference. For completeness I should point out Corry went to trial on manslaughter and appealed against that and - - -

KIRBY J: Went to trial on manslaughter?

MR RAFTER: I am sorry, went to trial on murder and was convicted of manslaughter and - - -

KIRBY J: That is right. Your complaint – this is the lurking complaint – is that it was Mr Corry who went to the place with a meat cleaver.

MR RAFTER: That is right.

KIRBY J: Yet he walks away with manslaughter and 17 years and your client is convicted of murder plus 10 years for burglary and she is sentenced to life imprisonment.

MR RAFTER: That is right.

KIRBY J: You say the lurking argument is that is on its face an injustice, but the problem is that inherent, as the Court of Appeal said, in having separate trials is that you will sometimes have discordant results.

MR RAFTER: Well, Osland holds that and that is why there is no argument that that constitutes an actual miscarriage of justice but - - -

KIRBY J: Well, you will never convince me that Osland was wrong – at least, I do not think you will. Can I ask you as a matter of practicality – and I am asking this as practicality and I understand what your legal arguments against it are – would it not be that in the case of your client sentenced to life imprisonment that the authorities that decide the actual sentence that would be served by your client would take into account the sentence that was imposed on Mr Corry?

MR RAFTER: I cannot answer for the authorities but I would - - -

KIRBY J: One would think that that would happen. One would hope and expect that that – I would hope that it would happen because they have the opportunity to adjust what is a just outcome and of course that is the Executive Government and you are looking to the judiciary.

MR RAFTER: Although, of course, by statute the applicant must serve 15 years of the life sentence before being eligible for parole, so there is not much the authorities can do about that, and whether in looking at her individual case they have regard to a co-offender convicted of a different offence and sentenced to a different sentence is highly speculative and doubtful, in my respectful submission. I said earlier that one of the problems here is the doubts that attend the admissibility of hearsay evidence in these circumstances, and that ultimately led the trial judge here to direct the jury as her Honour did at page 57 of the application book. I have to accept this was in a way in which the trial counsel accepted was appropriate. Looking at line 5, her Honour said:

Now, finally I should mention this: Mr Farr did yesterday mention Mr Corry’s letter . . . Now that’s evidence that you can take into account in Ms Smith’s favour, but again bear in mind it hasn’t been tested in cross-examination, it’s out of context, you don’t know what was motivating Corry at the time he wrote and said those things.

Now, the doubts that attend the admissibility of the evidence lead to a direction to simply take the evidence into account. If the evidence is properly admissible, in our respectful submission, if defences arise by reason of that evidence, then appropriate directions are, in fact, required. That is really all I can say about that first point. A related point though concerns the directions about section 8 and the way in which the judge put that to the jury, because section 8 requires that the offence committed be “in the prosecution of” the common unlawful purpose. Her Honour used slightly different language in the directions which she gave to the jury.

KIRBY J: There was no application for a re-direction.

MR RAFTER: And nor was this a ground of appeal in the Court of Appeal, although Crampton holds that that is not a bar to taking the point here, but it is certainly an obstacle, I recognise that, but in a sense this point is related to the other point because if the occasion for Corry to use lethal force against the deceased arose because of self-defence, then it is clearly arguable that what happened was not committed in the prosecution of the common unlawful purpose. It may be. But if I can perhaps go to the directions that her Honour actually gave concerning section 8, firstly, at page 12, line 30, her Honour said:

If two people agree to carry out an unlawful purpose such as a robbery or unlawfully entering another person’s dwelling to assault him and in the process an offence is committed –

Now, that is, in our submission, a quite different thing to being committed “in the prosecution”. “In the prosecution” connotes in the furtherance of the common plan, whereas “in the process” may be something beneath that. Moreover, her Honour said a little later that it was “in the course of”. Her Honour said that at page 38 of the application book, if I could take your Honours to that. Line 45 is where the direction commences and then her Honour says:

did they both intend there to be a robbery or an assault, as the case may be. Secondly, was Mr Hingst murdered in the course of that –

Again that connotes something that is not as hard for the Crown to achieve as establishing beyond reasonable doubt that the offence committed was “in the prosecution of” the common unlawful purpose. So allied with the admissibility and direction point, in our respectful submission, there is an important point to be decided by this Court.

HAYNE J: In the particular facts of this case, what difference is there between “in the prosecution of”, “in the course of”, or what was the first phrase?

MR RAFTER: “In the process of”.

HAYNE J: “In the process of”. What relevantly is different in this case?

MR RAFTER: Your Honours, the reason we submit that it is significant here links back to the other point. In the abstract, of course, it may not matter in an individual case, but here where there is arguably a problem about the self-defence aspect with which Corry was motivated to act then, in our respectful submission, if he did act in self-defence, it really does matter whether it was simply “in the course of” or “in the prosecution of”, which would be a higher bar for the Crown to establish.

For completeness I should mention Corry’s judgment in the Court of Appeal was delivered recently and it emerged from that judgment, which is with our bundle of authorities, that he abandoned reliance on self-defence at his trial but, of course, that would not influence the way in which this Court would approach the availability of that defence for this applicant in her case. Those are our submissions, your Honours.

KIRBY J: Yes, thank you very much, Mr Rafter. Mr Copley, we are going to adjourn for a moment to decide whether we will call on you. The Court will adjourn to consider the position.

AT 4.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.16 PM:

KIRBY J: Justice Heydon will deliver the reasons and pronounce the orders of the Court.

HEYDON J: The applicant had been in a relationship with Robert Hingst, the deceased. It ended before 26 March 2002. By then she and Michael Corry, the co-accused, were in a relationship. She and the co-accused were charged with murdering the deceased on 26 March 2006. After separate trials, she has been convicted of murder and he of manslaughter. She seeks special leave to appeal against conviction on two grounds.

First, she complains that the possibility that the co-accused was acting in self-defence was not left to the jury in her trial. She relies on two items of evidence. One is a letter from the co-accused to her and the other is part of what the co-accused said to a police officer, to which the officer testified while under cross-examination by counsel for the applicant. However, the letter does not contain any evidence sufficient to raise the issue of self-defence and nor does the evidence of what the co-accused said to the police officer. While another part of the police interview could raise an issue of self-defence, no questions were asked of the police officer about it and it was not in evidence in her trial.

In relation to this ground the applicant wishes this Court to reconsider its decision in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1, in which the Court declined to recognise an exception to the hearsay rule permitting reception of out-of-court statements by third parties exculpating accused persons. Since no evidence of this kind was tendered, the issue does not arise.

The second ground of appeal is that the trial judge failed adequately to direct the jury in relation to the applicant’s criminal liability pursuant to section 8 of the Criminal Code (Qld). The complaint centres on the trial judge having spoken to the deceased being murdered “in the process of” and “in the course of” a robbery or assault arguably intended by the applicant and the co-accused. Those expressions do not appear in section 8; rather, section 8 speaks of an offence being committed “in the prosecution of” an unlawful purpose. No application was made at the trial for a further direction. No argument was directed to this ground in the Court of Appeal. In any event, use of the words “in the process of” and “in the course of” did not amount to a misdirection in the particular circumstances of this case.

The application for special leave to appeal against the decision of the Court of Appeal is dismissed.

KIRBY J: The Court will now adjourn in order to reconstitute for the final application.

AT 4.19 PM THE MATTER WAS CONCLUDED