Collie v The Queen [2006] HCATrans 624 (10 November 2006)

--

Collie v The Queen [2006] HCATrans 624 (10 November 2006)

Last Updated: 23 November 2006

[2006] HCATrans 624

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A26 of 2005

B e t w e e n -

GARRY JOHN COLLIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 10 NOVEMBER 2006, AT 9.30 AM

Copyright in the High Court of Australia

MR. P.A. CUTHBERTSON, QC: If the Court please, I appear for the applicant. (instructed by Legal Services Commission)

MR S.P. PALLARAS, QC: If the Court please, I appear with MS C.J. MATTEO for the respondent. (instructed by Director of Public Prosecutions (South Australia))

HAYNE J: Yes, Mr Cuthbertson.

MR CUTHBERTSON: If I may, I would like to deal firstly with the issue of the direction that the bad character of the applicant can be used on the question of the credibility of his utterances. Your Honours would not be familiar with the conversation, but I have included it in the applicant’s materials because it is very short. It is three pages at the commencement of the booklet and, in my submission, it gives a very coherent account, albeit short, of the case for the applicant and explains most of the circumstantial evidence against him.

From the transcript, “male 1” being the applicant and “female 1” being his wife, one can see that in the first sentence he asserts it was not him. He asserts his innocence. Halfway down the page in the male 1 utterance he again assets his innocence, asserts that they are friends of his, the deceased, and he has known the deceased since he was 7 years old, relevant to the motive which the Crown advanced which was anger or in part anger by the applicant because the male deceased had had a gun the applicant gave him in his cannabis business confiscated by the police in New South Wales. At the bottom, the very last passage on the first page of that transcript, you will that he gives a very coherent account:

we had a barney out the back that day. And she fuckin’ threw the keys and jumped the fence –

There is an assertion there that the reason they were outside the house and that the female was outside the house was not, as the Crown asserted, because he was caught in the act of killing the deceased by the two men who came to the door and he was fleeing out the back, but it asserts his version which he told the neighbour that he had an argument out the back. So he has his wife outside, contrary to the Crown case which had his wife locked inside and unable to get outside because of the appearance of these two men at the front door. He gives an account there that the keys went over into the neighbours. At the top of the next page, he said he had to go round because he could not go over the fence. He got the keys and when he came back:

Coke and his missus wouldn’t let me in . . . and there’s, two other people knocking on his front door –

So again he has given an answer to the circumstantial evidence of the prosecution case which was that he had to come back to retrieve his wife who was still in the house because he had escaped over the neighbours’ fence having shot the deceased. Then he goes on that he came back to the door and he asserts:

they wouldn’t open the door . . . so I didn’t know whether Samantha [my wife] was back inside the house or took off.

Then almost halfway down the page:

I just said to these two blokes at the front door, I said look, if me misses comes back . . . just get them to ring me. So I took off in me car.

. . .

I took off and here she was walkin’ down the road, so –

therefore, he is asserting she was not in the house, as the Crown had asserted, being locked in there and unable to leave until the two persons who arrived at the door had gone –

She said I’ll drive.

And the female asserts, which is his wife:

No I drove home –

and one might infer, in accordance with his Honour’s direction, that that was adopted by the applicant and therefore you have evidence that he let her drive home which is relevant because it was asserted by the defence that he had an arm in a sling and that would have made him less likely to have shot or been able to shoot the two deceased quickly in succession before they could move in the armchair.

If I can now go to how that was dealt with by the appellate court and where, in my submission, they erred. If I can take the Court to page 245, which is the judgment of the Honourable Justice Vanstone which would appear to be the principal judgment on this issue and concurred in by the learned Chief Justice. At paragraph 188 her Honour says:

the statements attributed to the appellant as captured on the listening device were of no significance. To the extent that the conversation contained admissions . . . they were only confirmatory . . . To the extent that the appellant asserted that he was not responsible for the deaths, those utterances added little to his plea of not guilty before the jury.

Now, that, in my respectful submission, is not so. One has quite a coherent account on the listening devices consistent with innocence and explaining much of the prosecution circumstantial evidence. Her Honour goes on and says about the conversation:

it was in the nature of casual exchange between friends or acquaintances.

Now, rather than that diminishing from its cogency, it might be said that that adds to its cogency. Her Honour goes on:

The appellant was under no obligation to speak frankly to those present. It was far from being even of the status of a police interview . . . The appellant did not purport to put forward a full version of the events. He did refer to the argument with his wife which, he said, caused the throwing of the keys, and that suggested consistency with his statements on the day of the murders, but I cannot see that the direction could have made a difference to the jury’s assessment of that issue.

Now, with respect to her Honour, it is not an appropriate approach in accordance with what this Court has said in Weiss v The Queen to deal with the utterances in the listening device in such a manner. Her Honour goes on at the bottom of page 245 to discuss the evidentiary status of out-of-court statements and then returns at page 246 in paragraph 191 and asserts that:

the statements made by the appellant as recorded by the listening device could amount to no more than a possible version of the facts unsupported by evidence. Having regard to the nature of the conversation in which they occurred, and irrespective of the impugned direction, it is inconceivable in my view that the jury would have placed any greater weight upon them than it gave to the appellant’s plea of not guilty.

Now, with respect, this is more than a plea of not guilty. This is a positive assertion of facts which controvert or take away the implicatory nature of the circumstances which the Crown say are circumstances pointing to guilt. Then in paragraph 192 her Honour says halfway down that paragraph:

In no instance did counsel put to any of those witnesses a contrary version in the form of instructions from his client. That being so there was no potential for the jury to use the appellant’s bad character to undermine any such challenge.

Now, with respect, a contrary version to a witness which is not accepted by the witness is no evidence at all. Then her Honour goes on in paragraph 193 over the page, on page 247 of the book:

Why the keys were there was not able to be clearly established. It might be said that that issue was not capable of resolution and that it was, in any event, at most a secondary one.

Now, with respect, his Honour the Chief Justice at page 205, line 5 does not regard it as a secondary issue. He regards it as an issue of some significance, and it was, because the keys, having been discarded – one explanation was the Crown case that the applicant had fled the scene of the murder and jumped the back fence and lost them. Another explanation was the explanation that the applicant gave at the very time to the man who found the keys that he had an argument with his wife and she had thrown them there, which was supported by what he had said in the listening devices. Then at paragraph 194 her Honour says:

By the time the appellant spoke with Horbury and Davies at the front of the house he had already retrieved his keys. Inasmuch as he requested help from those two witnesses in finding his keys, he was plainly constructing a ruse.

Now, that, with respect to her Honour, is appropriate reasoning that one might use to suspect the applicant because he has given a slightly different version, but, of course, in his listening devices he said, “Well, they wouldn’t let me in and I didn’t know whether my wife was in there and we’d had an argument”. Then her Honour goes on in paragraph 194:

Similarly, if the jury accepted that by this time the victims had been shot, then the appellant’s assertion that he had seen the male victim drive off in a brown Commodore was a lie.

Now, with respect, her Honour has got it round the wrong way, because if it is true, or possibly true, that the male victim had driven off in a brown Commodore, then that would be relevant to whether, indeed, the victims had been shot, because that would confound the Crown case which was that they are inside shot dead or dying at this particular time. So then in paragraph 195 her Honour assets that:

For all these reasons I consider that the direction going to credibility fell on barren ground.

HAYNE J: To what statement could the direction about credibility have been attached in a way that was adverse to the interests of the applicant?

MR CUTHBERTSON: Most importantly, to the statement made in the listening device. Secondly, to the statement he made to the neighbour who found the keys that he had had a fight with his wife and that “The reason the keys are in your woodheap at the back of your yard is because my wife has thrown them there”, from which - - -

HAYNE J: There was no doubt that he had said these things. The question was and remained, did it not, whether the circumstantial case proffered by the prosecution was demonstrated to the requisite standard?

MR CUTHBERTSON: That was the question for the Full Court of South Australia.

HAYNE J: That was the question for the jury, was it not, whether the circumstantial case made by the Crown was demonstrated to the requisite standard of proof?

MR CUTHBERTSON: Yes, it was, your Honour, but in deciding that they must have taken into account his Honour’s direction that you can have less regard to what an accused person has said if they are a person of proven bad character. If the jury did – and one assumes they did – accept his Honour’s direction on that, and they did ask at the end of the summing up to have the three conversations read back to them, then they must have taken that into account, the direction from his Honour that you can have less regard to the credit of the appellant because of his bad character, which has been led as part of the Crown case for particular purposes.

Now, therefore, they must have used it when they considered the three utterances of the applicant, to the neighbour, to the people at the front door and in the listening devices. Those three utterances all directly and impliedly assert innocence and give an innocent explanation of what the Crown says are implicatory circumstances, namely, fleeing the scene and losing the keys, leaving the wife trapped inside, which is not true if one accepts that the wife was outside throwing the keys and not true if one accepts that when he drove off he picked up his wife on the way.

So that, in my respectful submission, is the matter that should have been dealt with by the Full Court appropriately and where, in my respectful submission, it has been demonstrated a failure to apply the directions of this Court most recently in Weiss v The Queen on the application of the proviso. Just to complete the picture, the Chief Justice agreed with Justice Vanstone at page 204 of the application book. He says:

I agree with the reasons of each of [Duggan J and Vanstone J] subject to what follows.

He then sets out his view on this particular issue in respect of which Justice Duggan dissented. He said at page 205, paragraph 10:

But the Director, as part of the prosecution case, argued that the explanation offered by Mr Collie for the presence of his keys in the woodpile, and for his presence and movements outside the deceaseds’ house were lies or deceptions used to cover up his involvement . . . The topic was one of some significance at the trial.

He goes on in paragraph 11 about halfway down:

Once the evidence of Mr Horbury and Mr Davies was accepted –

the two people at the door who said that there was a discussion about the keys again –

the conclusion followed that for some reason Mr Collie pretended to them that he was looking for his keys at the front of the deceaseds’ house . . .

12 That being so, I am satisfied that what the Judge said about Mr Collie’s credibility could not have had any effect on the jury’s approach . . . The truth of the explanation for the keys being in the woodpile is, perhaps, an additional matter, but when this topic is considered in the light of the deceptive conduct that followed a little later, the Judge’s direction appears to me to be of no significance.

Now, just turning briefly to the other issue about his exclusion from the trial, can I say this - - -

HAYNE J: The bottom line there is, assume it to be wrong, what was the consequence for him at his trial?

MR CUTHBERTSON: Yes, and, in my respectful submission, the Full Court did not deal with that issue in accordance with Weiss v The Queen and dismissed it lightly as having no consequence when clearly it was the defence case in a nutshell put in the tapes and it was said to be nothing more than a mere plea of not guilty.

Just turning, if I can, to the other matter, the exclusion from the hearing, in my respectful submission, there was no redeeming feature to the exclusion of the applicant like bad behaviour in court or the desire to admonish counsel privately or anything of that nature. It was a clear exclusion, but the best analogy I can think of is it is a bit like if the judge said, “I will see the prosecutor and one counsel and one defendant in Chambers to discuss this question of a separate trial, but I won’t see the other counsel and I will not see his client in Chambers”.

The fact that it was done in a formal court setting rather than in Chambers, to make my point, does not matter because, in my respectful submission, that is why the applicant would feel hard done by. If one goes back to basic principles, what is the reason for this rule that a person should be present at all stages of his trial? It is so that he does not feel hard done by. It is so that justice can be seen to be done. Here we have a case where evidence is taken. We do not even know what the evidence was and we do not even know whether it was just his wife who gave evidence or other witnesses as well. It is the sort of material that would attract a subpoena. It would be proper material for the defence to subpoena, if it was able to be subpoenaed, as being relevant material for the applicant to have on his trial.

If the Court pleases, that material has been denied him and, in effect, there has been a private discussion excluding him and to say that it was a different trial because there was a trial aborted and restarted, with respect, might be true in a strict sense or accurate in a strict sense, but it leaves the applicant feeling hard done by because at the new trial he could hardly re-litigate the pre-trial issues because he has the same judge that he had at his previous trial.

So, although nothing was formally discussed, it would appear that the new trial proceeded on the basis that all the pre-trial rulings of the judge applied, as would have been sensible because the same judge would have made the same rulings pre-trial.

HAYNE J: Well, I think your time has expired, has it not, Mr Cuthbertson?

MR CUTHBERTSON: If the Court pleases.

HAYNE J: Yes, thank you. We need not trouble you, Mr Pallaras.

The applicant was convicted of murdering John Powers and Leila Hoppo. An appeal to the Full Court of the Supreme Court of South Australia failed. The applicant’s application for special leave to appeal to this Court raises two issues. He and his wife were jointly charged but each applied for separate trials. The applicant was excluded from the hearing of his wife’s application and he has not been supplied with any transcript of what happened. Her application failed but his succeeded. The trial of the applicant then proceeded. The jury was discharged and it is a second trial that led to the convictions that now are in issue.

It is not disputed that the applicant’s exclusion was an error. The Full Court have applied the proviso to section 353(1) of the Criminal Law Consolidation Act 1935 (SA) and held that the error led to no substantial miscarriage of justice. The applicant’s central point in his written case was that his exclusion from the separate trial application was an exclusion from the trial and that that is so fundamental a defect that the proviso is incapable of being applied. One answer to that is that even if it was part of the second trial, given that it was so marginal to it and given that the applicant’s exclusion worked no actual disadvantage to him, it cannot be said that the irregularity went to the root of the proceedings: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373 per Justices Brennan, Dawson and Toohey.

The applicant’s other complaint (emphasised in oral submissions) concerns a direction that the jury could have regard to the applicant’s dealing in drugs and possession of a pistol in assessing the credibility of what the applicant had said after the deaths to three witnesses and what he was recorded as saying on a listening device some days later. It is common ground that the evidence about the drugs and the pistol was admissible to show the relationship between the applicant and the deceased. It was not admissible for the purposes of impugning the applicant’s credibility. The Full Court held that this was a misdirection and the respondent accepts this.

The error was immaterial. Counsel for the applicant did not challenge the evidence of the three witnesses about what the applicant said to them. That evidence corresponded to some degree with what the applicant was recorded as saying. The recorded material was inculpatory so far as it admitted presence near the death scene, but there was ample other evidence of that. It was exculpatory so far as the applicant denied guilt, but this added little to his not guilty plea.

So far as the statements of the three witnesses went further, they contained inconsistencies and some parts were likely to be rejected because the surrounding circumstances contradicted them. In consequence, as Justice Vanstone rightly said the direction going to credibility fell on barren ground. In any event, the Crown case was a strong circumstantial case. If a full examination of the trial record were to be undertaken by this Court – as to which see Weiss v The Queen [2005] HCA 81; (2005) 223 ALR 662 at 674 [42]- [43] – there is no reason to suppose that it would arrive at a conclusion different from that of the majority below, namely, that the erroneous direction did not lead to any substantial miscarriage of justice.

The application is dismissed.

AT 9.56 AM THE MATTER WAS CONCLUDED