Wildy v The Queen [2012] HCATrans 110 (11 May 2012)

Last Updated: 15 May 2012

[2012] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A31 of 2011

B e t w e e n -

MARK CLIVE WILDY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 MAY 2012, AT 1.45 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC: If it pleases the Court, I appear with my learned friend, MS M.E. SHAW, QC. (instructed by Michael Woods & Co)

MR A.P. KIMBER, SC: If it please the Court, I appear with my leaned friend, MS A.F. CAIRNEY. (instructed by the Director of Public Prosecutions (SA))

CRENNAN J: Thank you. Yes, Mr Abbott.

MR ABBOTT: Your Honours, this is a far different case from the last application your Honours heard before lunch. The issue of public importance warranting a grant of special leave in this case is the way in which courts around Australia have interpreted and applied this honourable Court’s decision in Edwards post-offence conduct contrasted with the - - -

CRENNAN J: The respondent does not disagree with the general statement that an Edwards direction might be required in circumstances where the post-offence conduct is other than lies. So the special leave questions seem to be founded not so much on principle, but largely on the circumstances of this particular case.

MR ABBOTT: With great respect, I would, with respect, differ. If the Court goes to the respondent’s submissions, which are at page 100 of the application book, the Court will see in paragraph 12 the respondent says:

There is no authority from this Honourable Court in support of the Applicant’s contention that it is necessary to direct the jury in the terms developed in Edwards where the post-offence conduct relied upon as evidence of consciousness of guilt is not evidence of lies by the accused.

Then they say, and this is the nub, we say, the point of importance:

the Applicant invites this Honourable Court to develop the common law as to the directions required to be given by a trial judge where evidence of post-offence conduct, other than lies, is relied upon by the prosecution as evidence of consciousness of guilt.

CRENNAN J: Then, of course, there is paragraph 3 – perhaps this is a question for the respondent – on page 98 of the application book which is really moving in a different direction.

MR ABBOTT: Yes. On the one hand they say – I take that as being – they want to contest the proposition on the one hand, but they are, of course, constrained by at least – not necessarily a constraint, but they recognise that there is a body of jurisprudence developed in numerous other courts, criminal appeal and superior courts around Australia, extracts of some of which we have set out in our case book in cases 3 to 7. Could I just develop where we say the South Australian Court of Criminal Appeal parts company with the jurisprudence relating to Edwards as addressed in other States around Australia.

In other States courts are focused on two aspects, firstly, whether, as in this case, the prosecution characterised and sought to use the post-offence conduct as indicative or demonstrating in some way a consciousness of guilt and, secondly and of course just as importantly, whether there was a danger that a jury might infer guilt from such post-offence conduct without considering and rejecting other and innocent explanations for the conduct. The plurality in this case have effectively added a third condition and that is to be found in the judgment of Justice Vanstone at page 57 of the application book, paragraph 34 on the last line, which is reflected in paragraph 37 on page 58. Her Honour said this – I am reading from page 57, the last two lines:

Unlike some post-offence conduct, for example, a lie, or the clandestine disposal of a body, the fact of the loans [plural] was not of itself discreditable.

Then she went on to say what it was. In paragraph 37 on page 58, in the middle of that paragraph, her Honour, after describing the loan said:

This evidence had none of the hidden dangers of lies evidence. It was not inherently discreditable.

On that basis, and your Honours will see that in paragraph 36 on page 58 her Honour had previously addressed that theme by saying:

There was nothing unusual or inherently dangerous in the cross-examination or in the submissions put to the jury.

CRENNAN J: In paragraph 35 her Honour also notes that no direction was sought of the kind which is now said to have been necessary.

MR ABBOTT: Yes.

BELL J: Can I raise in that context this consideration, Mr Abbott. At application book 13, line 30, one sees the trial judge directing the jury that there was no independent support for the complainant’s evidence. Indeed, I think his Honour directed in those terms again a little further on in the summing-up.

MR ABBOTT: Yes.

BELL J: The applicant was represented by experienced senior counsel. One can imagine why experienced senior counsel would not seek a direction explaining the circumstances in which it would be open to the jury to find evidence of conduct as corroborating or supporting the evidence of the complainant, which is what the direction that you seek would inevitably have done, would it not? It would have explained the steps that the jury must take before they might use, as an independent body of evidence, the evidence of the accused’s conduct in the period following the offence as evidence of guilt.

MR ABBOTT: That is so.

BELL J: Well, that being so, in circumstances where one has a favourable direction from the trial judge, namely, there is nothing but the evidence of the complainant here, senior counsel might well have soundly considered that forensic good sense did not commend the idea that you seek an Edwards-type direction.

MR ABBOTT: That may be the case, but this matter went to the Court of Criminal Appeal and was argued on the basis as to whether or not an Edwards-type direction should have been given and the Court of Criminal Appeal, by the plurality, determined that an Edwards-type direction was not appropriate in cases such as this because the evidence which would be referable to an Edwards-type direction was not of itself discreditable or not, as Justice Vanstone said at page 58 of the application book, “inherently discreditable”.

It is the way in which the Court of Criminal Appeal have added what is effectively a third condition in South Australia to the situation that must pertain before an Edwards-type direction is given about which we complain in this application and which we say represents a matter of public importance. All the more so when this Court has not had an opportunity of revisiting Edwards or, for that matter, Zoneff and the question of lies and the other classes of post-offence conduct is yet to be pronounced on by this Court. So we say that, because of the evidence in this case, it was wrongly characterised by her Honour Justice Vanstone, I take the Court to application book page 57. At the bottom of the last part of paragraph 33 her Honour said:

In the present case, evidence going to the admitted loan was merely presented by prosecuting counsel as an item of circumstantial evidence which was more consistent with the action of a guilty man than with that of an innocent one.

Thereafter, her Honour expanded on that by saying, well, in those circumstances, the evidence was not inherently discreditable and you have got to have more than that before an Edwards-type direction is warranted. The judgment of Justice White, however, in our submission, demonstrates the real attitude that was taken at the trial to this evidence and I take - - -

BELL J: Page 75, paragraph 111, I think.

MR ABBOTT: I was first of all going to page 68, paragraphs 85 and 86. I will not read out paragraphs 84 and 85 because 84 and 85 deal with the letter which was one of the pieces of post-offence conduct. But in relation to the loan of $6,000, Justice White accurately sets out the submission of the prosecution to the jury which was, to use the prosecutor’s words:

It’s an attempt to buy silence, I suggest, is the key issue of that evidence.

His Honour then went on to say:

The prosecution did not, at any stage, suggest to the jury that the evidence of financial assistance could be regarded as an implied admission of guilt.

However, it is plain enough that by the passages quoted the prosecutor was inviting the jury to infer the appellant’s guilt from these two aspects of his conduct in early 1988. He was not relying on this evidence for credit purposes only.

It is, accordingly, our submission that when evidence of post-offence conduct is used as an invitation to infer guilt and there is a danger of the impermissible use, ordinarily a judge must direct the jury in accordance with the principles laid down by this Court in Edwards and that in this case an Edwards-type direction was not given. I point out that the criterion as stated by Justice Kirby in Zoneff when he was, although in dissent, dealing with this type of evidence – and I refer the Court to Justice Kirby’s decision in Zoneff in our case book at page 54, but at page 263 of the Commonwealth Law Reports, his Honour said:

The criterion must be the way the jury might use the evidence –

We say this criterion is, in some sense, axiomatic, but it is certainly not satisfied by ascertaining whether the evidence of itself is inherently discreditable. The criterion, we say, can only be satisfied by assessing the use that the prosecution seek to make of the evidence and in that regard we have the comments of Justice White in his judgment and, of course - - -

BELL J: Did Justice White deal with the consideration that no direction had been sought? If it had been sought, it would be to tell the jury, contrary to the way the trial judge left the matter, that there was available a source of evidence independent of the complainant that, provided they were satisfied of the Edwards preconditions, afforded support for acceptance of his story. It is that forensic consideration that makes understandable, one might think, counsel’s decision to steer away from any such request.

MR ABBOTT: I return to what this application is about, and that concerns the way in which the Court of Criminal Appeal dealt with the question of an Edwards direction and the reasoning behind the plurality’s decision in this case.

BELL J: But that would hardly make it a suitable case in which to grant special leave if, for the reasons that I have indicated, there were no prospect of the appeal succeeding, would it?

MR ABBOTT: Well, in our submission, there would be. I think the only passage I can pray in aid of a submission is application book 76, paragraph 114 of Justice White’s judgment where he said:

Neither counsel reminded the jury of the appellant’s explanation for the loan. Although the Judge, in his summing-up, reminded the jury of J’s and the appellant’s evidence and of the respective submissions of counsel, he did not, with the authority of the Bench, given an Edwards-type direction to the effect that they should consider whether there were reasons for the appellant’s loan of $6,000 apart from a realisation of guilt. The judge did not identify for the jury the reason advanced by the appellant, and nor did he direct them that if they accepted the appellant’s evidence to that effect, they could not rely upon the loan of $6,000 as an implied admission or as an indication of realisation of his guilt.

BELL J: But the judge had not left the evidence on that basis. Assuming the jury followed the judge’s directions, the jury would have understood that if they were to convict the applicant it must be by reference to the complainant’s evidence and that alone.

MR ABBOTT: Well, in our case book we have referred to a decision of Papazoglou, which is page 69 and following and at page 70 of our case book – I can only refer the Court to what fell from the Victorian Full Court in that regard. At page 70, towards the foot of the page at paragraph 36, this is the same sort of situation:

The prosecutor said nothing to the judge about the need for directions on consciousness of guilt, and defence counsel sought none. Defence counsel covered the issue in his address, but did so only on a factual basis. In his charge to the jury, the judge repeated the relevant part of the prosecutor’s address, but gave no directions –

We say that Papazoglou is no different from this case and yet in Papazoglou, notwithstanding the way the case proceeded, the Victorian Court of Criminal Appeal held that an Edwards-type direction should have been given. The basis on which the decision in Papazoglou was approached by the Victorian Court of Criminal Appeal is set out in paragraph 37:

This was a case of oath against oath. The critical issue was the credibility of the complainants and the appellant respectively. In such a case, the suggestion –

about what was the relevant evidence requiring an Edwards-type direction –

was highly potent. Indeed, it may well have been the decisive factor –

We say a similar situation applies in this case. If the Court pleases.

CRENNAN J: Thank you, Mr Abbott.

MR ABBOTT: The prosecution argued, and it is set out in Justice White’s judgment, that this was a key issue. That is set out in the passage that I referred the Court to at application book 68. In our submission, we say that this is an appropriate vehicle. It is certainly a point of public importance given the fact that this Court has not had occasion to revisit Edwards and determined what other types of post-offence conduct fall within the Edwards category which, of course, only dealt with lies. If the Court pleases.

CRENNAN J: Thank you, Mr Abbott. We do not need to call counsel for the respondent. Justice Bell will give the Court’s decision.

BELL J: This application is not a suitable vehicle for the consideration of the need, if any, to give a direction along the lines of Edwards v The Queen in a case in which the prosecution relies on conduct, other than the telling of a lie, as amounting to an implied admission of guilt.

At the applicant’s trial, the jury were directed that there was no other evidence which supported that of the complainant. In the circumstances, it is unsurprising that experienced Senior Counsel appearing at the trial did not ask for the directions which different Senior Counsel briefed on this application contends were essential to the fair trial of the applicant.

Special leave is refused.

AT 2.04 PM THE MATTER WAS CONCLUDED