Jones v The Queen [2008] HCATrans 337 (30 September 2008)

Last Updated: 1 October 2008

[2008] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B24 of 2008

B e t w e e n -

CHRISTOPHER CLARK JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON TUESDAY, 30 SEPTEMBER 2008, AT 10.25 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC: May the Court please, I appear with my friend, MR P.E. SMITH, for the applicant. (instructed by Ryan & Bosscher)

MR A.W. MOYNIHAN, SC: If the Court pleases, I appear with my friend, MR B.J. POWER, for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIRBY J: You have reduced your grounds of the application and the proposed ground of appeal to the single ground of miscarriage of justice. Is that correct?

MR BYRNE: With particulars, yes, that is so, your Honour.

KIRBY J: Yes. It is said in the very last paragraph of the respondent’s submissions that the co-accused, Mr Roughan, was in fact retrialled and on his retrial was convicted. Is that an agreed fact?

MR BYRNE: It is, your Honour.

KIRBY J: So we do not face in this case, as it now presents itself, any possibility of a dischordancy between the outcome of Mr Roughan’s trial and the outcome of your client’s trial?

MR BYRNE: Again, that is correct, your Honour.

KIRBY J: Yes, thank you very much. At some stage I would be grateful if you would help me on the meaning or interpretation to be given to that secretly recorded conversation which is conveniently summarised on page 3 of the respondent’s submissions, page 158 of the application book. I am just not quite sure how one should interpret the assertions of Mr Roughan and the assertions of your client, given that your client does not ever get to the point of, as it were, specifically nailing Mr Roughan with having done the stabbing that allegedly caused the death. It is just a little hard to understand exactly what was being asserted there by them and perhaps if you can elaborate that a little bit I would be grateful because that is one piece of objective evidence of what they were both saying when they did not know that they were being recorded.

MR BYRNE: Your Honours, we can deal with that now. It is, as your Honour points out, not easy to interpret there, but overall when one looks at it, our submission would be that any statements by the present applicant are, at best, equivocal. He does not at any time admit being involved in the killing and Mr Roughan does not distinctly deny it. There is a flavour, and we use that term advisedly, that he has – that is the present applicant – been brought into it, roped into it, which again we would say is, in the full context of the evidence in the trial, equivocal as to whether that was what was being spoken of was the killing itself or the subsequent disposal of the body.

KIRBY J: The difficulty with that concession, which is properly made, is that it leaves the case in the situation that these two miscreants who were certainly involved in some way in the death of the deceased were involved in the one incident and that would normally be a reason why an appellate court would not interfere with decisions about a joint trial and where it would be left to the jury to work out the ambiguities of these assertions and, in effect, the jury did by finding them both guilty and now by the conviction of Mr Roughan on his second trial that situation has been restored so that you are the one who, as it were, has to interfere with the decision of the jury and of the Court of Appeal. You have to show error.

MR BYRNE: Quite, and just to briefly respond to what your Honour Justice Kirby puts to us, it is certainly correct that as a starting point allegations such as this are to be tried together, that is, where there are two persons said to be involved, the starting point and, indeed, usually the finishing point is that there will be a joint trial. However – and we will deal with this in the course of submissions - a number of matters occurred during the course of this trial which, as the Court of Appeal ultimately found, should have resulted in a separate trial for Mr Roughan.

The error, and we will identify that with some precision, also went against this applicant and he, too, in our submission, should have been granted a separate trial. That would have done away with any of the overlaying concerns that the trial judge expressed as to undue prejudice or the prejudicial nature, the very prejudicial nature of the evidence which was sought to be led on behalf of the current applicant and its impact upon the co-accused, Mr Roughan.

So whilst we accept that, yes, there should have been a joint trial to begin with, that position changed. The error which your Honour Justice Kirby invites us to identify is this, that the applicant has suffered a miscarriage of justice caused by the learned trial judge, and confirmed by the Court of Appeal, failing to apply the correct principles in relation to the admissibility and forensic use of the co-accused’s antecedents and history.

KIRBY J: But do you have to answer, in getting that argument up, the contention that you at trial sought to prove the antecedent history by hearsay evidence from a police officer, rather than calling the complainant of that antecedent history which it is said you could have done and nothing that was ruled below would have prevented?

MR BYRNE: That proposition does permeate both the reasons of the Court of Appeal and also the submissions by our friends in response. We have provided to them, and I believe to the Court, at a late stage, the actual rulings made by the trial judge, but without going to those can I address the point this way. If one goes to paragraph [36] of the reasons of the Court of Appeal, which is at page 121 of the application book, his Honour Justice Keane is there dealing with the origins of this. It is said in the second sentence:

Counsel for Jones –

that is, the applicant –

sought to go further in an attempt to elicit more details of the circumstances of the charge of attempted murder, but was not permitted to do so on the footing that –

and we emphasise –

these matters were irrelevant to the issues in the trial.

That, with great respect, is a very accurate summary of what the ruling by the trial judge was. Her Honour ruled that anything past the point where there was a stabbing – I will rephrase that – anything beyond the point where the co-accused was on bail for stabbing a mate was (a) irrelevant and (b) unduly prejudicial to the co-accused, as he then was, Mr Roughan. Such a ruling, again with great respect, renders it fanciful to say that one could have, or the applicant could have, sought to go behind that ruling to lead positive evidence of the circumstances from the complainants in the attempted murder/grievous bodily harm charges. Her Honour’s ruling was quite plain, and it is as set out in paragraph [36], that those matters were irrelevant to the issues.

HEYDON J: What is the precise reference to the page where her Honour made that ruling?

MR BYRNE: Of the record it is page 417 going to 418. As I say, I have supplied this to our friend and we have supplied it to the Court yesterday. At about line 38 her Honour said this:

Obviously there are certain things that are probative in Jones’s case which are about Jones’s state of mind and he said in his police interview, and we have that now in, that what was probative about his state of mind was that he knew that Roughan was on bail, that Roughan had been charged with stabbing someone who was a mate. Now, I will – my view is that I should allow you to cross-examine the arresting officer about those matters, but any further than that I don’t think it goes to anything that’s relevant in this case and it’s very prejudicial to Roughan.

At line 55 counsel points out that that is not his understanding of the authorities, which, with respect, is correct, and her Honour clarifies her ruling by saying:

Well, it’s not relevant. I can’t see how it goes to – positively goes to your case.

Then to complete that sequence, at page 418, about lines 25 to 28, her Honour clarifies the view that it cannot go further and at the bottom of that page counsel asks whether he is permitted to ask the police officer if he was on bail for attempted murder and, at page 419, line 16, her Honour said:

Well, I think I ruled that you couldn’t.

So, in our submission at least, it is clear that - - -

HEYDON J: Her Honour was correct in that. Merely to be charged with something does not prove that one did it because one is presumed to be innocent. Was ever an attempt made explicitly to say, “I wish to call a witness to describe what happened to her in relation to this charging that happened to him or her?”

MR BYRNE: No, your Honour. The effect of that ruling was taken by counsel and we would say, with respect, correctly taken by counsel that the proposition or the inquiry could not go further because of the ruling of irrelevance. The irrelevance goes to, we would say, not just the questioning but the fact that there was that charge, and those allegations did not go to any relevant issue in the trial.

HEYDON J: Charges and mere allegations do not, but the facts charged, if proved, would go to an issue at the trial. Your submission, in short, is that her Honour ruled against you on that point?

MR BYRNE: Yes, your Honour. The ruling was a broad one: that anything further, to use her Honour’s term, was irrelevant.

HEYDON J: Now, was this put squarely to the Court of Appeal?

MR BYRNE: I believe it was. I will just try and find that. Yes, his Honour Justice Keane deals with it at paragraph [73].

KIEFEL J: I think his Honour actually starts at [72], at least making the point that evidence of the charge was not apt to prove anything at all, which I think Justice Kirby earlier put to you.

MR BYRNE: Yes, that is correct, your Honour.

KIRBY J: You say that you were effectively closed off? The trial judge made it fairly clear that she thought the whole line of territory was irrelevant and, in any case, unfairly prejudicial to Mr Roughan and therefore that she was not going to let it in.

MR BYRNE: That is our position, your Honour, yes.

KIRBY J: The question, I suppose, is whether, armed with the hindsight that appellate courts always have in bucket loads, we can say the trial counsel should have pressed the point at the point of tendering a witness such as the victim of the earlier stabbing to show that Mr Roughan was a mate-stabbing type person.

MR BYRNE: Counsel below did his, again with respect, level best. If your Honours have further copies of the transcript there, at page 796 effectively, after the close of the Crown case – and this is at about line 15 - counsel sought to renew his application to lead evidence that, he said:

your Honour ruled that I couldn’t ask about in relation to Roughan’s committing the - or being charged with the offence - - -

KIRBY J: Where is this? On 796? We have 796.

MR BYRNE: On 796, at about line 16. That passage, to get the full flavour, goes down to about line 40.

KIRBY J: Now, somewhere in your written submissions, you say that the law in England is and has long been that a co-accused does have a right, whatever may be the other presumptions of innocence and so on, to tender against a co-accused any evidence that suggests the innocence of the other co-accused. Is that a correct statement of the principle, as you have advanced it, or not?

MR BYRNE: That is a correct statement of the general principle.

KIRBY J: Or is that overstating it?

MR BYRNE: It overstates what we need to say here. The law in England and, we would say, indeed in Australia at least as enunciated by the Court of Criminal Appeal in Western Australia, is that in scenarios such as the present where there is a cutthroat offence, then an accused is entitled to lead any evidence that may assist him relevant to the disposition and propensity towards violence of a co-accused, and that was what was sought to be done here but was disallowed.

KIRBY J: Could I ask you to cut to the chase and tell us why this is an important issue from the point of view of legal doctrine, because if one looks at this case as you have properly conceded you have two co-accused each blaming the other for doing the fatal act and a conversation secretly recorded that does not resolve that, though it is a little bit in your client’s favour. The situation that effectively it was left to the jury, the judge not allowing you to explore a matter which was not ultimately probative, namely that Mr Roughan had previously stabbed a mate in the back requiring you, therefore, to show that he was that sort of person more violent than your client, but not ultimately probative.

Now, this is a messy factual situation and normally such situations are left to juries to resolve. Why is it a situation that should be lifted into the High Court, given the outcome of the separate trial of Mr Roughan to try effectively for the first time to work out whether or not an error has happened in the trial? It just seems such a messy situation that it is perfectly the type of case that a jury has to sort out.

MR BYRNE: A properly instructed jury we would say and that is the point of principle which we seek to bring to this Court. Could I point out I am reminded that in the transcript of the prison van conversation at the very start of it there is this passage by the applicant responding to the co-accused if I may quote “Mate, I fucking didn’t even do it” to which - - -

KIRBY J: Where do we find this?

MR BYRNE: It is not in the record unfortunately, it is in the - - -

KIRBY J: Anyway read it to us. This is Mr Jones saying “I didn’t even do it”, is that correct?

MR BYRNE: Yes, he says “Mate, I fucking didn’t even do it” to which Mr Roughan responds, “All right, snitches don’t last long Chris”. Now, the reason why this matter - - -

KIRBY J: What does that mean? That means an informant or a person who alleges something against a co-accused is that - - -

MR BYRNE: Yes and which of course on the evidence the applicant did. He told the police that the perpetrator was the co-accused and, indeed, he suffered a stab wound to his hand as a result of a frenzied attack by the co-accused on the deceased.

KIRBY J: But in a way that is a little bit against you because it does show that at the critical moment of stabbing, your client at the very least was holding the deceased down and got – accidentally so it is said – stabbed in his own hand as a result. But I suppose you say that shows that Mr Roughan was the knife wielder?

MR BYRNE: Yes, and it does not show that he was actually holding him down. It shows he was present and on our account - - -

KIRBY J: No, his hand had to be on the body of the deceased in order to pick up the knife.

MR BYRNE: Yes, and in our account “we were trying to pull the co-accused off the deceased” so that again is an explanation which is there on the evidence. So far as the principles are concerned there are two. The Court of Appeal went through as they stated the law and said that these matters are not admissible, or if they are they go to credit. But they ignored or simply did not deal with the proposition which comes from both Winning in Western Australia and the House of Lords in Randall that this evidence is directly relevant to disposition and criminal propensity to violence. That is the point of principle of which the applicant was deprived because of the ruling of the trial judge and the way the matter was dealt with in the Court of Appeal.

The other difficulty so far as trial judges are concerned, there is now this decision in place which holds, if one reads it properly, that this evidence is irrelevant. It is also the position according to the three judges who made up the Court of Appeal that the threshold admissibility is to be determined either by striking similarity, not striking similarity or not necessary to decide (a) or (b). So again trial judges by that position are left in some difficulty. Can I answer your Honour Justice Kirby’s proposition - - -

HEYDON J: Mr Byrne – sorry, you answer.

MR BYRNE: I was just going to say one of the matters your Honour Justice Kirby put to me was that this case was factually difficult. It is certainly factually involved, but that matter did not prevent the Court of Appeal from gaining a retrial to the co-accused Roughan in light of all the evidence and we would say the stronger evidence on the prison van conversation in respect to him, rather than us. So this is a matter - the point of principle raises the use to be made of this evidence, its admissibility and the threshold aspects of how it is admissible and to what it is to be put. I am sorry, Justice Heydon?

KIRBY J: You try to make the fact that you accept that this is the sort of case that ordinarily will be, under our current principles, and perhaps ought to be heard as one trial of the two accused. You say that makes it all the more important to make clear what the ground rules are as to what the co-accused can do, vis-à-vis each other and what evidence they can call or suggest in attacking the co-accused.

MR BYRNE: Quite so. The other issue which certainly troubled the trial judge is whether that effort by counsel is to be impacted upon by any prejudicial nature that that may give to the co-accused in the trial.

KIRBY J: Yes. I think Justice Heydon had a question. He was more polite. He let you finish your sentence.

HEYDON J: On page 796, Mr Martin referred “to the QP9 which your Honour ruled I couldn’t” tender. What is a QP9?

MR BYRNE: A QP9 is essentially the bench charge sheet prepared by the police officer that sets out the facts, as he understands them. It is used to place that material usually before a Magistrates Court for considerations of matters such as bail.

HEYDON J: That would not be admissible by itself, would it? That would be hearsay?

MR BYRNE: By itself, no. To put it in full context, it was placed before the learned trial judge without dissent from either side, so her Honour could understand the nature of what could, if allowed, emerge from that earlier incident involving the co-accused and the stabbing.

HEYDON J: Underlying your arguments are very important questions of principle. The problem is, though, this is of terminological confusion. It probably was not right to say that the events to do with the charge were irrelevant but unless they were proved admissibly by calling a witness to those events you would not get into these questions about whether Justice Keane is right that you need to have a sort of very high similar fact evidence standard or whether you need a lower standard, in other words whether – perhaps not Fenech itself, but similar fact evidence rules generally operate differently as between co-accused from the way they operate as between prosecution and accused, but I am not sure that it was ever put in a crystal clear way to Justice Atkinson.

Justice Kirby may have said this before, but if there had been a witness, as it were, waiting to get into the box and counsel had said, “Look, this person is going to explain what happened”, it is not a question of QP9s or prejudice to do with the charges, this is - was it ever explicitly put to her that it was not just the QP9 but a primary witness of what was alleged in the QP9 that was in question?

MR BYRNE: That point was never reached and we say it was not reached because this was an evolving argument during the course of the trial. It was an argument that went both ways. There were arguments as to what the co-accused could lead against the present applicant and then, again, the applicant lead against the co-accused and it just hit that roadblock which we have taken your Honours to before in the course of her Honour’s ruling but we have to say that, no, the point your Honour Justice Heydon raises was never reached but all we can say is it was not reached for a reason and that, in itself, is a cause of injustice and a miscarriage of justice to the applicant.

KIRBY J: Could you tell me where, if anywhere, in the record that we have is that opening gambit where Mr Jones said, “I didn’t even do it” when he was being secretly recorded?

MR BYRNE: If your Honour would grant me a second? I am not sure it did make the record but I will just check.

KIRBY J: I think your time is up so maybe you could have a look for that whilst we are hearing from Mr Moynihan.

MR BYRNE: Thank you, your Honour.

KIRBY J: I do not know if Justice Heydon had finished his question.

HEYDON J: The proviso is a huge problem for your client, is it not?

MR BYRNE: We would say no. As the Court of Appeal held in respect to Roughan, despite the strength of the case against him, the faults in the trial were such as to require as a matter of justice a retrial. We would say that the fault, if any to the current applicant, is greater than that because he was deprived of the opportunity to explore this very relevant important issue.

HEYDON J: Is this one of those principles mentioned at the end of the joint judgment in Weiss about “It hasn’t really be a trial at all” or “there has been some fundamental principle offensive to the idea of a fair trial”??

MR BYRNE: A major point of principle and evidence of which the applicant was deprived. We would say that that is a case - - -

KIRBY J: You say that if the undeserving Mr Roughan got a separate retrial that the more deserving Mr Jones should have the same advantage?

MR BYRNE: That is so, in a nutshell, your Honour.

KIRBY J: All right. See if you can find that passage that you quoted to the Court because that might be significant.

MR BYRNE: Thank you.

KIRBY J: Yes, Mr Moynihan.

MR MOYNIHAN: Your Honours, it is our submission that the applicant received a fair trial, that this Court ought not be concerned that there had been miscarriage of justice, because the Crown case was that one or both murdered the deceased or that one aided the other with knowledge of the requisite intent. The applicant, unlike Roughan, had confessed to two people – firstly, Paul Smith and, secondly, Jai Carroll, as well as the three other accessories that he had killed - - -

KIRBY J: I have to say that less important to me would be that evidence than what they said when they did not know they were being recorded. If it is the case that Mr Jones said at the opening, “I didn’t even do it” and if subsequently in the conversation he says that Mr Roughan says to him, “Look at it, mate, murder or helping me murder, whichever way you want to look at it”. He is not saying, “I’m completely innocent” or words to that effect. He is saying, “You’re into this up to your neck because it’s a case of murder or helping me to murder”. He is not saying, “I never did it, I never did it at all”. So that if you have in that conversation Mr Jones saying, “I didn’t even do it” and if you have Mr Roughan saying, “You’re in it for murder or helping me to murder” that rather suggests that the question of Mr Roughan being a more violent man who had stabbed an earlier mate in the back shows that he is a man given to violence, and given to knife violence, and that he does not really deny it in that conversation.

Now, in that case it then becomes important to look at what Justice Atkinson did and whether she closed off the opportunity to at the very least have this placed before the jury, because that is what principle but also fairness to Mr Jones would seem to require.

MR MOYNIHAN: Your Honour, the Court of Appeal correctly held that in this case the evidence of the fact that Roughan had been charged with stabbing a mate was admissible in favour of Jones, and your Honours will find that in Justice McMurdo’s reasons at paragraph [90], because it went to his state of mind at the time and the truth of his police interview.

But the Court of Appeal went on to correctly find, in my submission, that the judge was correct not to permit the circumstances or details to be led from the police as evidenced by the QP9 because they were hearsay; secondly, that the circumstances were not relevant to the applicant’s state of mind or the issue of the reliability of the applicant’s statements that he acted because he had reason to fear Roughan - and your Honours will find that in Justice Keane’s reasons at paragraph [73] and Justice McMurdo’s reasons at paragraph [101]. Importantly, the Court of Appeal found that the ruling did not prevent the applicant from calling the evidence from the complainants. Your Honours will find that in Justice Keane’s reasons at paragraph [73], and Justice McMurdo found, at paragraphs [102] and [103], that her Honour was not asked to and did not rule on the admissibility of that evidence from the complainant.

KIRBY J: Yes, but we have been taken to the passage on 796 where the trial counsel renewed his application to lead the evidence and that did not result in the opening of the door. I mean, how much has an accused counsel got to do at trial than to raise it? You cannot cavil with the trial judge over and over again.

MR MOYNIHAN: But the applicant’s counsel at trial was at all times trying to elicit the evidence from the police officer and to use a document prepared. There was no suggestion from the applicant that he was going to call anybody else in his own case.

KIRBY J: Well, we do not really know that. That is probably correct, but we do not really know it because the judge said it is not relevant and it is unfairly prejudicial to Mr Roughan. So the evidence never got in.

MR MOYNIHAN: Well, your Honour, Justice Keane went on to find that, in any event, the evidence that Roughan had stabbed another person did not render the applicant’s confessions, that is, to two people other than the accessories and the three accessories, that he had killed the man, any less cogent. That was at paragraph [74] of his Honour’s reasons. More importantly, his Honour found that the mere fact of an allegation reduced to a charge of which he his presumed innocent is not apt to prove anything at all, let alone that Roughan had a disposition to violence that made it more probable that he killed the deceased than Jones. Your Honours will find references to that - - -

KIRBY J: There is a disparity between the different positions taken by the judges in the Court of Appeal. Justice Muir says, “I am not going to resolve it”; Justice McMurdo says, “Well, it should have got in” and Justice Keane really says, “Well, it should not have got in because it does not rise to the similar facts test”. So, as Mr Byrne said, does that not leave trial judges in some uncertainty as to what they should do in such cases? It would not be a peculiar situation.

MR MOYNIHAN: No, it is not a peculiar situation, but Justice Heydon correctly identified earlier that that is not part of the ratio of this case because the central issue of the appeal was whether the applicant was deprived of the opportunity to call the evidence from the complainant, and the court inevitably held that they were not.

KIRBY J: Yes, but the difference between ratio and dicta seems to be something that they do not teach in law schools any more.

KIEFEL J: Mr Moynihan, on the question of her Honour’s ruling, or confirmation of the ruling, at page 796 - - -

MR MOYNIHAN: Yes.

KIEFEL J: When her Honour says that, in her view, Roughan was entitled to the presumption of innocence, would that not have conveyed to defence counsel for Jones that there was no point in pressing the matter? Is that not the clearest exposition of her Honour’s view that there would have been no point in attempting to have admitted evidence by a complainant about the facts attending the previous stabbing because her Honour would not allow the evidence to be gone into as prejudicial to Roughan?

MR MOYNIHAN: Well, that would depend on what the circumstances were. Now, her Honour had before her the QP9 document, which has been provided to your Honours. But it has to be remembered that in there the defence of self-defence is raised in relation to this other incident. That is probably the reason why Justice Keane was interested in determining the similar fact issue. But, in my respectful submission, her Honour always recognised that it was relevant to the state of mind and what he had told the police, but beyond that the relevance was not obvious to her Honour, given the presumption of innocence, in my respectful submission, is what her Honour was saying there.

KIEFEL J: Could you also tell me what you would say is the range of sentences that could be imposed upon an accessory after the fact of murder?

MR BYRNE: In this case, it would have been in the order of five years imprisonment. It may have been a little bit higher. That is what the co-offenders did get, but they did not serve any actual incarceration because of their.....but in the order of five years imprisonment, your Honour. Your Honour, no submissions were advanced in relation to the arguments in relation to the use of the applicant’s bad character was put or in relation to whether the fact the applicant did not receive a retrial when his co-offender did. I do not propose to address those issues unless your Honours wish me to.

KIRBY J: Yes thank you, Mr Moynihan. Anything in reply, Mr Byrne, did you find that little passage?

MR BYRNE: Her Honour, the trial judge, deals with the prison van conversation at application book 47, lines 9 to 29. Her Honour does it just to remind the jury that there was that conversation and that they had heard submissions on it by counsel. There is no setting out of that conversation in the directions to the jury and there was only the limited extract of that conversation in the judgment of his Honour Justice Keane.

Whilst our friend, Mr Moynihan, has been on his feet, however, my junior has confirmed with Mr Moynihan’s junior, Mr Power, that the transcript which I extracted that passage from before is the transcript that was used at the trial so I do not think I can - - -

KIRBY J: That was in evidence at the trial?

MR BYRNE: Yes, and Mr Moynihan agrees with - - -

KIRBY J: Would you read that passage again, just that first – where was it in the conversation? Was it at the very beginning or - - -

MR BYRNE: It is on the bottom of page 1 of the transcript of the conversation, so at the beginning.

KIRBY J: Do we have that before us or not?

MR BYRNE: No.

KIRBY J: Well, it is no good telling us it is on the bottom of page 1 of the transcript. We do not have page 1 or anything else, except what you put before us.

MR BYRNE: Yes, it is very early in the conversation. Perhaps if I read - - -

KIRBY J: What is the context? Just read us the preceding questions.

MR BYRNE: I will read from the start to where that occurs, your Honour:

ROUGHAN: Fuck.

APPLICANT: Are you in there James?

ROUGHAN: Yep.

APPLICANT: What are you up for?

ROUGHAN: Same as you.

APPLICANT: Murder?

ROUGHAN: Yeah, good one for passing all the blame on to me mate.

APPLICANT: Good one for dropping all my names in.

ROUGHAN: I didn’t drop nothing of the sort. I haven’t even made a statement.

APPLICANT: Fuck off.

ROUGHAN: I haven’t huh, so you blame me for what you do because you reckon I dobbed your mates in, fuck you. Snitches like you don’t last long in the slammer mate. I know a lot more people in there than you.

APPLICANT: Mate, I fucking didn’t even do it.

ROUGHAN: All right, snitches don’t last long Chris.

That is at the beginning of that conversation.

KIRBY J: Yes, all right. Anything in reply to what Mr Moynihan has said?

MR BYRNE: Only this. We have referred your Honours to the High Court’s decision on this case in R v Randall. We have given your Honours [2001] UKHL 54; [2004] 1 Cr App R 26. In paragraph 24 of that judgment at page 383 the judgment refers to Archbold, Pleading and Practice, and what at least is the practice recognised there which I quote:

“Cross-examination of –– typically –– the investigating police officer to establish the bad character of a person who is neither a party nor a witness commonly occurs in practice . . . Where questions as to character are put to a witness . . . The reality, however, is that where the defence to a charge of murder is self-defence and it is elicited that the deceased had a series of convictions for serious offences of violence, the relevance of this evidence is that it goes to disposition.

We would say that is the same principle where there is a co-accused, but there is - - -

KIRBY J: Just explain that to me will you, that it goes to disposition? Is that the - - -

MR BYRNE: I am sorry, your Honour?

KIRBY J: Go ahead, you explain it.

MR BYRNE: The terms “disposition” and “propensity to violence” seem to be used interchangeably in the judgments. So the disposition presumably is the person’s willingness or disposition to violence, or expressed another way, the previous behaviour, be they antecedents, be they allegations, be they convictions, go to show that that person has a propensity to violence which as in that same case – paragraph 22 – the House of Lords said, “It would be curious if the law compelled such an unrealistic result”, that result being that that evidence went to credit, but not to a propensity of violence and it is that point which we would say that the applicant was deprived of by the ruling here. Those are our submissions.

HEYDON J: Just one moment. The House of Lords - Randall’s Case, where is it?

MR BYRNE: Does your Honour have - - -

HEYDON J: Yes, I have it now, but you referred us then to paragraph 22?

MR BYRNE: All of 22 is relevant, in our submission.

HEYDON J: The other paragraph you mentioned was?

MR BYRNE: It was 24, your Honour.

HEYDON J: Thank you very much.

MR BYRNE: Thank you.

KIRBY J: The Court will adjourn for a short time to consider the course that it will take in this application.

AT 11.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.12 AM:

KIRBY J: The Court grants special leave to appeal in this matter, as set out in the grounds of the amended notice of appeal, paragraph 2, and the particulars (a), (c) and (d). The Court does not grant special leave to appeal on particular (b). We think we should warn you, Mr Byrne, that you should be ready to defend (c) and (d) when you come up into the Full Court because we considered whether we should grant special leave on those particulars. However, we have left them in. Particular (a) seems to us to be the essence of the matter. That is the matter that should take up the time of the Court. This is an appeal that could be disposed of in less than one day? Do you agree with that?

MR BYRNE: Yes, your Honour, as does my friend.

KIRBY J: You had better make sure that we have in the appeal books the materials which have been referred to today and any other materials that should be before the Full Court but which have not been before us in a formal sense in the application book.

MR BYRNE: Certainly. Thank you for the warning, your Honour.

AT 11.14 AM THE MATTER WAS CONCLUDED