Hill v The Queen; Young v The Queen [2014] HCATrans 191 (4 September 2014)

Last Updated: 5 September 2014

[2014] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B27 of 2014

B e t w e e n -

BRADLEY DAVID HILL

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Brisbane No B28 of 2014

B e t w e e n -

KERRYN ANNE YOUNG

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 4 SEPTEMBER 2014, AT 10.23 AM

Copyright in the High Court of Australia

___________________

MS S.M. RYAN, QC: May it please the Court, I appear with MR K. PRSKALO, for the applicant Hill. (instructed by Legal Aid (Qld))

MR P.J. CALLAGHAN, SC: If it please the Court, I appear with MR M.C. CHOWDHURY, for the applicant Young. (instructed by Legal Aid (Qld))

MR M.R. BYRNE, QC: If it please the Court, I appear for the respondent in both applications. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Thank you. Yes, Ms Ryan.

MS RYAN: Your Honours, if I can deal with the second ground first. The applicant’s criminal responsibility for murder was on the basis that the applicant Hill was the principal offender and the applicant Young was his aider, so it was never alleged that they had formed a common intention to prosecute an unlawful purpose. The trial judge correctly directed the jury more than once to the effect that the admissible evidence against them was different in each case and in considering the case against each, the jury were permitted only to take into account the evidence admissible against each. The jury were more particularly correctly instructed that certain pieces of evidence were not admissible in the case against Hill and certain other pieces of evidence were not admissible in the case against Young.

The critical piece of evidence for our argument is that the jury were told that the testimony of Naomi Phillip was led largely in the case against Hill only and the jury were told that the evidence of Young’s conversations with her son a week later were inadmissible in the case against Hill. The evidence of Naomi Phillip was critical in the case against Hill because she provided really the only evidence that his intention to kill or seriously harm the deceased persisted from the time he reached Gladstone until the time of the killing.

Hill’s lawyers argued at trial and on appeal that there was no acceptable basis for the jury concluding that his hostility towards the deceased continued after he reached Gladstone because his threats had ceased - his telephone threats and threats to other people had ceased – and he had reconciled with Young. The last threat he made about the deceased seems to be in a text to Young at about 3.25 am on Saturday, 9 October, and he arrived in Gladstone at about 6.30 am on that Saturday. There was evidence that there was a lot of threatening talk between the deceased and Hill and Young and their associates, and evidence that this sort of talk was not taken seriously, although some of the witnesses clearly did take it seriously. Phillip’s evidence included evidence that after the drop off of the syringe Hill said when he got into the car with her:

“That’s one mess taken care of” . . . “it’s either going to hurt him or kill him” and “I gave him that whole bag I got off Leigh”.

That was a reference to a bag of heroin. That evidence is discussed in the judgment of his Honour Justice Morrison in the Court of Appeal at paragraph [39] of that judgment. Phillip also gave evidence, although it is not referred to in that particular paragraph, that Hill said, “I shouldn’t have sent that text message. I hope you enjoyed that shot. It’ll be the last one you have from me”, but there was actually no evidence that the message had been sent.

At paragraph [41] of his Honour’s judgment in the Court of Appeal – and this is when his Honour is discussing Hill’s ground of appeal about the unreasonableness of the verdict and in particular whether there was evidence of continuing hostility and more precisely whether an intention to kill was persistent at the time at which the drug was delivered, his Honour refers at paragraph [41] to just how telling Phillip’s evidence was against Hill if it were accepted. His Honour notes that her credit was under considerable attack for all sorts of reasons - she had some sort of mental illness, she claimed to have been visited by the spirit of the deceased, she was given an indemnity by the Attorney-General and she was promised a lesser sentence if she cooperated - as well as the general unreliability associated with these drug users.

The jury were told by the trial judge that it would be dangerous to convict Hill on her evidence if they could not find any other evidence to support it, and the jury were told that the prosecution contended that there was other evidence to support it, and that was set out at the summing up in pages 13 and 14 of the application book. Now, in our submission, none of that evidence is in fact corroborative evidence in the true sense, in that it does not corroborate the material particular of her evidence which needed corroboration, which was her evidence that his intention persisted.

Generally the evidence identified by the trial judge and by the Crown at trial was evidence that supports the fact that she was indeed travelling in the same car as Hill and she was in the car he got into after he had delivered the drugs, and that she went with him to Paul Maestrani’s house early on the Sunday morning. But none of that has any bearing on the critical part of her evidence which concerned Hill’s continuing intention to kill.

KIEFEL J: Forgive me for interrupting you, but which special leave point are we dealing with? Are you giving us a narrative background, because I had thought that your principal question was one of causation?

MS RYAN: That is certainly ground 1 of appeal, your Honour. The second ground concerns the impermissible use of evidence in the approach of the Court of Appeal to the question it had to answer about the reasonableness of the verdict, so its own evaluation of the evidence, and critical to that evaluation of the evidence was whether there was evidence of Hill’s continuing intention to kill at the time the drug was delivered to the deceased, or to his letterbox.

HAYNE J: But do you say that the Court of Appeal should have been satisfied that the jury could not have reached the requisite conclusion about intention?

MS RYAN: Yes, they could not have reached that conclusion about his intention continuing. The only evidence of it was this evidence of Phillip. It needed to be corroborated - critically because she was so unreliable, it needed to be corroborated in the material aspects of it.

HAYNE J: But what about his statement – that is, the accused man’s statement – after delivery of the syringe? What was it, to the effect, “That’s the last shot you’ll get from me”?

MS RYAN: Well, that was in a text message, or at least that was the evidence that Phillip was giving though, so the only evidence of that came from the unreliable witness. So the unreliable witness said, “Hill said to me, ‘That’s the last shot I’ll ever give him’” or “That’s one mess taken care of” and that was what needed to be corroborated.

KIEFEL J: But at what point before the time of death do you say that the evidence of his intention ceased?

MS RYAN: About – the last text message was sent at about 3.28 am on Saturday morning and the delivery of the drug was some time around midnight Saturday evening into Sunday morning, so not quite - - -

KIEFEL J: It is not a very long time.

MS RYAN: Not quite 24 hours, but a period of time, and in that period of time there had been his reconciliation with Young, and his hostility was directed at them both because he understood – because they caused him to understand that they were sleeping together. The error though which we submit is the critical one is that, in undertaking an analysis of the evidence independently, his Honour Justice Morrison refers to the supporting evidence as corroborative evidence, even though it is not in fact corroborative in a strict sense, but more significantly adds to it inadmissible evidence, and the inadmissible evidence is the evidence of what Young said to her son eight days after the death. His Honour treated that inadmissible evidence as critical to his analysis of whether Phillip had been supported.

HAYNE J: Where do we find that in the reasons?

MS RYAN: In the reasons, paragraph [43]. That paragraph commences:

It is important to note the concession made by Young.

This was a reference to a concession made by, as I understand it, Young’s counsel on appeal, that her statement to her son to the effect that the plan was she and the deceased were to take heroin and have sex, that she understood that “the shot being delivered to the deceased was heroin”. Now, plainly that evidence was only admissible against her, and yet his Honour considered it of particular importance in evaluating Phillip’s reliability. It followed that if Phillip could be considered a reliable witness, or rather if Phillip could be corroborated in a relevant sense, then it would not be dangerous for the jury to act on her evidence, her evidence being the only evidence of the persistence of an intention to kill at the relevant time. So, in our submission, the error is the use of inadmissible evidence to either corroborate or support. The jury had been instructed not to do that, and yet his Honour did, and his Honour considered, in our submission - - -

HAYNE J: Well, what do you say about the second sentence in paragraph [43]:

The importance of this concession lies not only in its impact on Young, but its impact upon the way in which the jury might have accepted the evidence of witnesses at the trial.

Is that permissible reasoning or impermissible reasoning that we see there?

MS RYAN: If the evidence of those witnesses at the trial was relevant in Hill’s case, then, yes. There is a distinction though, in our submission, by using – well, there may well be a distinction between using evidence that is admissible only in one case as broadly supportive of other evidence, that is broadly supportive of the reliability of other witnesses, and evidence inadmissible in a case used to corroborate. In our submission, it is well-established that for corroboration, evidence that is capable of corroboration must be evidence admissible in a case against the particular defendant against whom the witness, who needs to be corroborated, is giving evidence. So, if we accept that both Young and Hill’s trials, though run as joint trials, were to be considered as separate trials and the evidence against them were to be considered separately, at Hill’s separate trial there was no way the jury would hear about what Young had said to her son eight days after the killing.

HAYNE J: Absent that, your case must be that the jury must have entertained a doubt about intent. Why?

MS RYAN: Because the evidence of it persisting was limited and the fact - - -

KIEFEL J: Does that take account of the fact that heroin was provided?

MS RYAN: The way Hill conducted his case challenged the fact that heroin was provided.

KIEFEL J: But it was open to the jury to find that as a fact.

MS RYAN: That it was provided, yes, but that – but it is the intention with which it is provided that creates the criminal responsibility.

KIEFEL J: But having found that fact, the jury would be entitled to view intention in that light.

MS RYAN: In the context of evidence that that was part of the deliberate plan to kill him or harm him by that means, yes. On that point, the only other submission I wish to make is that at paragraph [45] of the reasons there is again the application of - or reinforcement of the application of this inadmissible evidence in the decision about the reasonableness of the verdict against Hill. On the question of special leave upon that ground, it is our submission that in approaching this issue of corroborating the unreliable witness in this way and using evidence that was inadmissible against him, the court has proceeded contrary to established principle about the way in which evidence against separate defendants is permitted to be used in joint trials. The other justices - - -

HAYNE J: If there were a leave point, the leave point would be much more radical. The leave point would be that a verdict has been returned where it should not have been. Now, if you make good the proposition that that is arguable, the case for leave is presumably quite strong.

MS RYAN: Yes.

HAYNE J: But, absent making good that proposition, where do we go?

MS RYAN: Your Honour, perhaps I can try to make good that proposition in arguments about ground 1, the causation argument. The test of causation or, more particularly, whether there had been a break in the chain of causation because of the conduct of the deceased, was framed in this case in terms of whether he knew that the drug he was injecting was heroin or not amphetamine. So it was framed in terms of the knowledge of the type of drug in the syringe that the deceased had. In our submission, that direction was too narrow and the Court of Appeal approached that issue in the same narrow way. The relevant authority on - - -

HAYNE J: Was there a complaint at trial that the direction given in that respect was too narrow?

MS RYAN: No, there was not, no. It seems, your Honour, that what had occurred at trial was, although I could not find any argument in the transcript about it, but certainly the directions to the jury are consistent with everyone appreciating that causation was at issue and the no case submission by Mr Hill’s counsel certainly appreciated that causation was at issue. It seems that the case proceeded on the basis that the relevant authority was the case of Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334. Your Honours, we have got copies of that judgment.

HAYNE J: We are familiar with Burns.

MS RYAN: Thank you, your Honour. It also must be remembered, in our submission, that this case was presented on the basis of homicide or nothing, but even if the applicants were not criminally responsible for the death of the deceased because of a break in the chain of causation but did not – that is not to say that they do not bear responsibility for their behaviour on that night. So they may well be responsible for an offence like intending to harm by noxious substance or certainly the supply of a dangerous drug. But their criminal responsibility on the facts of this case depended upon whether the deceased had made this voluntary and informed choice to inject the contents of the syringe.

In our submission, the issue that arises on the application for special leave is what does it mean to be informed? In our submission, it must mean informed about the risk inherent in the conduct undertaken. Now, in Burns the only relevant risk was that he was injecting methadone because of its potential to interact with the other drugs he had taken that day, his antipsychotics. Because that was the only risk it was appropriate, in our submission, to frame the question in Burns about whether he had made a voluntary and informed choice about injecting the drug in terms of his knowledge of the type of drug he was injecting.

So when the question is framed in Burns in the judgment of the Chief Justice, his Honour Justice French, in the consideration of the relevant question, it is framed in terms of whether his injecting himself with methadone was a voluntary and informed act. So the focus was on his information about the drug itself. In our submission, that is not always going to be the way the particular risk needs to be framed and what seems to have happened in the present case is that the sentence in Burns – and it is in paragraph 16 – was particular to the facts of that case, namely, whether that deceased was informed in a sense that what he was taking was methadone.

That was converted - the need for him to know the nature of the drug in that case was converted into a more general test applicable, certainly in this case if not in all cases. In our submission, the risk to the deceased in this case and what he had to be informed about, what needed to be factored into his choice, was that the drug arrived pre-mixed, so he did not see it made up, and its source – Young – was associated with or in contact with or physically with the man Hill who had threatened to kill him. So there was a - - -

KIEFEL J: But there is a distinction, is there not, between taking a risk and being fully informed?

MS RYAN: A distinction between taking a risk and being fully informed? Well, the risk is on the basis that one is fully informed and on the evidence he was aware that there were risks inherent - beyond the ordinary risks of drug taking, risks inherent in his injecting this syringe or the contents of this syringe. The evidence that he was informed to the extent of awareness of the risks involved was reflected in all his behaviour. He is seeking advice from his friends. On the evidence, he is testing it by injecting in his abdomen perhaps. He is tasting it. He is in conversation with McNeil over the phone. He is tasting it. He contemplated only taking half of it. There is evidence of his making phone calls to Young.

So his behaviour is all consistent about a sense of concern about the contents of the syringe and in fact his statement to McNeil that he did not know what amphetamines tasted like seems to be a statement he makes before he tastes it and suggests he does not know the nature of the drug he is about to inject, because tasting it does not help him. So, in our submission, that is the context in which his decision to act, his undertaking of risk, was to be considered. He was not deceived as to the risks; he was aware of them.

HAYNE J: Yes. Well, now, I see your time has gone, Ms Ryan.

MS RYAN: Yes, thank you, your Honour.

HAYNE J: Yes, Mr Callaghan.

MR CALLAGHAN: Can we join issue at the outset with the observation made by your Honour Justice Hayne about what is involved in the application and whether it is as simple as whether the verdict was open or not, because the application is brought in two parts.

HAYNE J: I understand that.

MR CALLAGHAN: The first part relates – or what has been argued as the first part relates to a fundamental error by the Court of Appeal and you have been taken to application book 57 and paragraph [43] and, in our respectful submission, you will not in this Court get many clearer examples of error in a Court of Appeal. Evidence admissible against one accused only – perhaps I overstate that – but evidence admissible against one accused only was used by the court in the affirmation of a verdict against the other. The error was stark, and all that appears in paragraph [43](a) to (h) is predicated upon that error. In other words, you can see just how functional the effect of the error was to the judgment of the Court of Appeal.

Now, the respondent engages against us at application book 136 on this point and it is said that this is “an unremarkable use of admissible evidence”. Perhaps given your Honour Justice Hayne’s grimace, it is unremarkable, but the fact is it was not admissible against the applicant Young, and there is no serious argument made against that proposition. Rather it is said at point 20 or thereabouts that it is just difficult to see how that reference can be objectionable to this applicant. Well, can we make that clear?

The first point to be made is the applicant Young was charged as a party to the principal Hill. If there is flaw in the analysis of the case against Hill, there is flaw in the analysis of the case against Young. When Young appealed to the Court of Appeal and insisted that the verdict was unreasonable, she was entitled to have that court perform an independent review of the evidence and affirm the verdict according to law. That did not happen.

KIEFEL J: That raises the question, if you are right about the error being shown in the Court of Appeal’s reasoning whether it should go back. That could be the only order that you could seek.

MR CALLAGHAN: If we were to succeed on this ground alone, that is the appropriate response, with respect, yes. That is all we would ask. Indeed, we submit, that is the worst case scenario for the applicant Young because the error was so clear and so functional. The only other reference I probably need to give you to demonstrate that is at application book 81, paragraph [141]. This follows on from the point that I was making because, yes, in the analysis of the evidence against Hill, that error was made and we say that is self-evident that if the Court misdirected itself in affirming that conviction, that must have a flow-on effect, but in any case it is stark.

Whilst in the first sentence of paragraph [141], lip service is paid to the notion of inadmissibility of the relevant evidence, the functional effect of the evidence is discussed expressly at the end of [141] namely, the fact that Young knew that heroine was delivered – as per the evidence of Weston – would “make it easier to accept Phillip’s”, and in the following paragraph, “The consequence is”. Again, the error is clearly and starkly demonstrated and as we say our worst case scenario is that the matter be remitted to the Court of Appeal to be decided according to principle.

However, as is clear, we submit the flaws in the litigation run deeper than the errors made in the Court of Appeal and go to the very heart of the matter which is whether, in a case like this, it is open for the prosecution to establish the element of causation when death has resulted as the result of an overdose that has been injected by the deceased.

The issue was never addressed as it ought to have been. The closest it gets is at page 19 of the application book where you can see the direction that was given to the jury which was really – when stripped of double negatives and when its meaning is extracted – a direction which focused on the state of mind of the deceased. But, we submit – well, we say, let it be assumed that the Crown could prove beyond reasonable doubt the deceased was, in his own mind, as certain as he could be that the drug was an amphetamine. That could not, without more, establish for the Crown – as against the applicant, Young – the element of causation.

We would ask the Court to notionally test the situation by asking whether, instead of narcotic, the applicants had left a loaded gun in the deceased’s letterbox and with full knowledge that they intended him harm – that the applicants intended him harm if that could be established – the deceased had decided to relieve his boredom by playing a game of Russian roulette. It could not, in those circumstances, sensibly be suggested that the applicants had caused his death, but that is, in effect, the situation here. That is what the deceased did when he chose to inject a syringe – the contents of which he could not ever have known with certainty – into himself.

KIEFEL J: What do you say then about the direction at special leave book 19 at about line 25:

if he had a reasonable doubt as to what the drug was and thought he would take the risk, then the prosecution failed to prove causation.

MR CALLAGHAN: Because it is focusing on his state of mind and the relevant issue is much wider than whether he had a doubt about what the drug was. That really does not frame the issue as we submit the authority of Burns would suggest it should be framed, which is whether there was a voluntary and informed decision as to the taking of the drug, and joining issue with I think an observation made by your Honour Justice Kiefel earlier, the topic of what “informed” means in this context is the stuff of which we would submit special leave applications are made – because it will have to form part of the direction to the jury. It is one thing to say a voluntary and informed decision negates the chain of causation.

KIEFEL J: Well, if it is a truly voluntary act which is informed you usually know what the drug is that you are taking.

MR CALLAGHAN: Well, no one can ever know what an illegal drug is though when they are injecting it, those who enter the drug trade - - -

KIEFEL J: Might not know the dosage, but you normally know what it is.

MR CALLAGHAN: This is our point, you cannot know any of those things, you cannot know the nature of the drugs, its concentration and its purity, which may be different things, and so it makes no sense to just say, in our submission, well, if he was not informed about which - - -

KIEFEL J: Is it to be tested by saying if he had known that it was heroin being supplied that it would have made no difference to his decision?

MR CALLAGHAN: No. We have to get back to what the Crown has to prove. The Crown has to prove that the applicant somehow caused the death by placing a syringe in his letterbox of any substance they have not literally caused his death, that has then happened when he injected himself. So the question is whether there is sufficient evidence to link whatever they did with the injection. They were not present when it happened, there is no suggestion of duress, fraud has not been pleaded, nor could it be proven. That is the way the question should be addressed and, with respect, the whole angle from which it was approached by the trial judge does not address that underlying problem.

HAYNE J: Were these questions agitated at trial in this fashion?

MR CALLAGHAN: No, but we say if they are wrong they are wrong, and if a miscarriage has occurred as a result then they should be addressed, this is - - -

HAYNE J: Was the question of causation debated at trial on the footing that an important element to the proof of causation was whether the drug would have been understood by the deceased as having been amphetamine, not heroin, where the accused knew it to be heroin?

MR CALLAGHAN: Two parts to the answer: the question of causation was, as I understand it, debated during a no case to answer submission, which is not in the application book. It may well be that issues were thought to have been dealt with at that stage but, with respect, your Honour has read the summing up, you have seen the manner in which the case was put to the jury and, yes, the focus was, seemingly, solely upon the identity of the drug and if the identity was - - -

HAYNE J: But causation in the sense of knowing an informed act turned on information about what the drug was.

MR CALLAGHAN: We say that was to frame the question in the wrong way.

HAYNE J: But it was the way the question was framed at trial.

MR CALLAGHAN: As I say, yes, your Honour has read the summing up in Young, of course, that is the way it was done, but we say that was inadequate in the circumstances and that a miscarriage has flowed as a result. I do not need to repeat that, nor I think any of the other arguments that we have made unless there was anything in particular that your Honours wish to hear.

HAYNE J: Thank you, Mr Callaghan. We will not trouble you, Mr Byrne.

There is no reason to doubt the correctness of the actual orders made by the Court of Appeal in these matters. Special leave to appeal is refused in each application.

AT 10.56 AM THE MATTERS WERE CONCLUDED