Bradshaw v The Queen

[1998] HCATrans 373

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 1997

B e t w e e n -

WAYNE WILLIAM BRADSHAW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 3.02 AM

Copyright in the High Court of Australia

MR S.G. SCOTT:   If it please your Honours, I appear on behalf of the applicant.  (instructed by Stables Scott)

MR J.R. McKECHNIE, QC:   If your Honours please, with my learned friend, MS J.A. GIRDNAM, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J:   Yes, Mr Scott.

MR SCOTT:   If your Honours please.  The first matter, perhaps, is a housekeeping matter.  There was an affidavit which was made available to your Honours some time ago which contains, apart from the transcript, the essence of the evidence upon which the application is based and the evidence that was before the CCA.  I do not know whether it is necessary to formally produce that but we would say to your Honours that although the judgment of the court was fairly lengthy and dealt with matters in a fairly succinct form, that material may be of some assistance to your Honours.

McHUGH J:   Yes.  You do not have any objections to it?

MR McKECHNIE:   No, your Honour.

MR SCOTT:   In addition, your Honours, there is an amended application, some supplementary submissions that have been filed on behalf of the applicant and also on behalf of the respondent.

McHUGH J:   Yes.

KIRBY J:   But the basic problem, Mr Scott, is that, one, your client has served his criminal sentence; two, that, basically, he wants to bring these proceedings for a collateral purpose, namely, to have himself restored to the medical role which may be a legitimate purpose from his point of view, but that is collateral to what is the normal purpose of an appeal of this kind; and, thirdly, what you are seeking the High Court of Australia to do is to get embroiled in all the detailed facts of this matter and it is really not an appropriate thing for us to do unless there is some jewel or pearl of principle that is hiding down there that I have not yet seen.

MR SCOTT:   Well, I trust that I might be able to discover the pearl, your Honour.  There is no collateral purpose, with great respect to your Honour, in the manner that your Honour suggests.  Of course, it would be of immeasurable assistance in the event that Dr Bradshaw’s ‑ ‑ ‑

KIRBY J:   Let us not be unrealistic.  That is why your client is mounting the application.

MR SCOTT:   With respect, your Honour, the applicant has always maintained his innocence and it is his innocence that he wants to protect.  Now, of course, there is a collateral benefit to him, but it is his innocence that he has always maintained and it is an innocence which we would say, with respect, that he is entitled to pursue as far as the law will allow him to do.  So there is no ulterior purpose which should make this application of any less importance ‑ ‑ ‑

KIRBY J:   I did not say ulterior, I just said it was collateral to the normal purposes of the criminal law. 

MR SCOTT:   Perhaps I can put it this way, there is no motive that should make this appeal less worthy than those that might be held where a person might still be incarcerated.  I think, your Honour, what this is going to come down to, is, firstly, we do not invite your Honours to necessarily look at the entire case and, perhaps, in our second ground of appeal we are closer to inviting your Honours to do it on the M v The Queen submission, but if I can address your Honours on the principal basis upon which this appeal is mounted, and that is the material that relates to the manner in which the Court of Criminal Appeal dealt with the new evidence. 

Now, what we say to your Honours is that in the passages to which I have referred in the supplementary submissions, the court by the Honourable the Chief Justice, made this statement concerning a matter of public policy and, to that end, I refer to that in my supplementary submissions at paragraph 2.1.  He does not only say it there, as has been suggested in the respondent’s outline of submissions in response, he also refers to it at page 60 point 20 of the application book.  What he said was that:

There are strong public policy reasons –

which he did not articulate –

not to characterise as “new evidence” which is relevant to the guilt or innocence of an accused person, evidentiary material which merely goes to the credit of a witness who gave evidence at the trial.

He makes that statement at application book pages 58, 50 and 59, point 5.  He then repeats that at page 60 when he is dealing with entirely different evidence.  What we would say to your Honours about that statement, given that the fresh evidence, or the new evidence, that was relied upon before the Court of Criminal Appeal, is that just is  wrong?  There is no reason why evidence which goes to credit should be dealt with in any different way from any other evidence that might be adduced, or sought to be adduced, as new evidence.  And to do so, means that the court, through his Honour, just simply got it hopelessly wrong, we would say.

McHUGH J:   Well, even if that submission was accepted, the point is that this case concerns the application of established principle to the facts of the case.  There really is not any special leave point in this case, Mr Scott.  I have studied the material with some care and it is really a straightforward case and the application of well-known principle to the facts of the case.  Now, some courts may have taken a different view of the evidence but, in the end, it is concerned with the application of principle of facts.

MR SCOTT:   With respect, your Honour, the difficulty with that proposition is that there are established authorities, with respect, to the reception of new evidence.  Gallagher is the obvious authority.  But the Court of Criminal Appeal, when it dealt with the evidence, dealt with it, it would seem, under some misconception as to the way in which that evidence ought to be received by reference to some public policy.  The public policy to which his Honour referred is a policy, that is, in terms that the new evidence or that evidence as to credit only is not, in reality, new evidence.

McHUGH J:   Yes, but at 59, having made the earlier statements about the strong public policy reasons, page 59, line 3, the Chief Justice says:

Specifically, I do not consider that, had this material been available to counsel for the applicant for the purpose of cross-examination of Mr King, there was a significant possibility that the jury, acting reasonably, would have acquitted the applicant.

And there was a wealth of evidence against King and admissions obtained from him.  He was obviously a witness of an entirely unsatisfactory character, unless he was supported in other respects.  This further evidence, it just seems to me, it was just driving the nail in a bit further.

MR SCOTT:   Well, your Honour, with respect, in so far as what his Honour says in page 59 and repeats it at page 60, we would say that the danger is that he has gone through the motions in making those determinations with respect to fact because - it would not matter if he stated the policy at the end of his judgment or he stated it at the start.  He has looked at all of the evidence which was as to credit only, and that is, essentially, all of the new evidence that was proposed to be adduced.  He has looked at it on the basis that there is some policy which would place that evidence of less weight in its reception as other evidence.

McHUGH J:   No, not that.  He, apparently, tended to the view that this sort of evidence does not get off the ground.  But, notwithstanding, that that may be an approach which he took, nevertheless, he did consider the effect of the evidence.

MR SCOTT:   But he considered the effect of the evidence, your Honour, within the umbrella of his statement as to the public policy.  You see, what has happened here ‑ ‑ ‑

McHUGH J:   He cannot have, because the question whether it qualifies as fresh evidence is a condition precedent to the evaluation or consideration of the evidence.  Now, if he had knocked it out on the ground that it was not fresh evidence, then this case may have other dimensions.  But, having made that statement, he went on to consider each and every item of the evidence and what effect it had or would likely have had on the jury’s verdict and came to the view, it would not.  Now, others may take a different view.  It seems to me at the moment that there is a great deal to be said for the Chief Justice’s analysis of it.  I have read all the evidence and I see really no reason to doubt the correctness of his analysis of it.

MR SCOTT:   Your Honour, he made the statement that he made - I assume he made it because he meant it, and I assume he made it because he relied upon it, and with respect to what your Honour says about it, he says that:

In my opinion, there are strong public policy reasons not to characterise as “new evidence” –

evidence that goes merely as to credit and if you ‑ ‑ ‑

McHUGH J:   I understand that, but what I put to you was that it was not as if, having made that statement, he said, “Well, I will not consider this evidence”.  He went on to do the opposite.  He went on to consider it.

MR SCOTT:   But the danger, your Honour, is that he has considered it based upon that public policy statement which is wrong. 

Now, what I was about to say to your Honours in respect to King, just quickly, about what King’s evidence was.  There were three instances that were put to King in respect to his corrupt activities.  On each occasion King, in his evidence, explained away those activities.  For example, there was a $500 donation from a Mr Duffy in respect of the mayoral election.  He said, “I gave it to the Sorrento Soccer Club”.  So he has, on three occasions – and they were the only three matters that were put to him – King had an explanation. 

Now, we do not know what view the jury may have taken as to those explanations.  The jury may well have taken the view that maybe they are believable.  What we say is that the new evidence provided such ammunition to any reasonable counsel that it would have been, we would say, unlikely that the jury would ever have accepted anything that King said.

McHUGH J:   Now, all you are demonstrating is that this is not a special leave case.

MR SCOTT:   Your Honour, where we make the application, we base the special leave point is in the following terms:  we say that this Court is invited to make a determination as to whether there is such a public policy as the Chief Justice enunciated and, secondly, whether there is any distinction between new evidence that goes to credit as opposed to new evidence that is directly relevant to the matters at trial.  Now, they are the issues that are squarely raised by his Honour the Chief Justice in the Court of Criminal Appeal. 

I can find no authority that would either support or not support either proposition, and we would say that they are two matters that the law has not dealt with and that this Court would be invited to deal with and make a determination in respect to either or both of them.

McHUGH J:   But the problem is that it is a point that would, in all likelihood, never be reached because the case would be disposed of on other grounds.

MR SCOTT:   Your Honour, if, in fact, his Honour has dealt with the evidence under that misapprehension as to the public policy, the case might well be dealt with on grounds that were favourable to the applicant.  It is not a question of whether King was corrupt, it is a question of how corrupt he might have been.  It is also a question of whether his answers to the jury, which the jury may well have accepted, might, in the light of the avalanche of other evidence which we say was capable of being adduced, would have changed the entire nature of the case.  King was the only person who gave direct evidence as to one conversation which he had with the applicant.  There was some corroborative evidence, we accept that, but it is like a pack of cards, if King’s evidence had not been accepted at all, how could one ever say that there would not have been a reasonable doubt which would have resulted in the applicant’s acquittal?  Now, that is the proposition we put to your Honours.

There are probably 10 significant pieces of evidence.  For example, he carried $30,000 in his drawer.  His son said he had $15,000 to $20,000 which he made on each election.  Now, that sort of evidence in the hands of experienced counsel would have provided cross-examination which we would say would have dreadfully impugned King’s character to an extent that no one would have believed him.

McHUGH J:   I know you put that but the Court of Criminal Appeal considered it and they took a different view, and, really, there is no special leave point in it.

MR SCOTT:   But, your Honour, what if the Court of Criminal Appeal, as we say, took that view because it did not consider that evidence as to credit was, in the main, new evidence, because that is what his Honour the Chief Justice said?

McHUGH J:   Accepting your argument at its highest, the Chief Justice dealt with it on an alternative basis.  He said, “Well, this probably does not qualify as fresh evidence anyway on public policy grounds” but he then went on to consider the evidence and held it was of no effect.

MR SCOTT:   With respect, your Honour, you are putting it too low.  He was not speculating about that, he was saying that that is the policy which he considers is adopted with respect to new evidence.  That is the way we would put it and that is the way it was put by his Honour.  I cannot read anything into what his Honour has said.  If his Honour did not mean it, I am sure his Honour would not have said it.

McHUGH J:   No, he may not have meant it, but judges will frequently give two grounds for disposing of a case and it may be a proper reading of what his Honour said that he thought a lot of this evidence just did not come within the grounds which would enable a verdict to be set aside but if he did, the fact is he went on to consider the likely effect of the evidence.

MR SCOTT:   But, your Honour, let us put our case at the highest and let us say that that is what he said and that is how he considered the evidence.  Now, is that not a matter which would impact significantly on the way in which he dealt with it?

McHUGH J:   I do not see how.  It is as if the Chief Justice said, “This evidence is not admissible” and then he goes on to say, “Well, even though I take that view I will now see what weight it is”, and even if it was admitted it would not have affected the result.  That seems to be what he has done, even accepting the basis of your argument.

MR SCOTT:   That is not putting the argument at our highest, your Honour, and I think the second proposition that we put to you in respect of - - -

McHUGH J:   I am not saying putting it at the highest, putting it at the highest that that is the way to read the Chief Justice’s statement about strong public policy reasons and credit evidence not being fresh evidence.

MR SCOTT:   On page 60, at point 15 to 20, he says:

I have already dealt with this material at an earlier stage of these reasons.  Again, the material is only relevant to credit and the public policy considerations to which I have already referred apply.

So, the second proposition we put to you as a special leave point is, is there any distinction that can be drawn between evidence as to credit and other evidence that might go to the matter in issue?  If there is, tell us; if there is not, then we ought to get a determination - - -

McHUGH J:   We do not grant special leave to give advisory opinions or to advise on hypothetical questions.

MR SCOTT:   No, I am not suggesting your Honour should.  What I am suggesting to your Honour is that based upon what the Chief Justice said at page 60, it probably takes the way in which he has dealt with the evidence, even further than we put to you at pages 58 and 59.

The other point we make is the M point which really, I suppose, is a fall-back position, that we would say that that is a matter that this Court, in a case such as this where the evidence is such that, as we put it, it would have been very damaging to the principal witness, that this Court could extend the principle enunciated in M and repeated in Jones to consider whether the verdict was, overall, unsafe and unsatisfactory.  In other words, stand one step back, and determine whether, on the whole, the evidence was unsafe and unsatisfactory, which we say is a different test, albeit slight, to that enunciated in Gallagher.  They are our submissions, if your Honours please.

McHUGH J:   Thank you, Mr Scott.  The Court need not hear you, Mr McKechnie.

This case concerns the application of established principles to the facts of the case.  It raises no question that would warrant a grant of special leave to appeal.  Moreover, we see no reason to doubt the correctness of the decision of the Court of Criminal Appeal. 

Mr Scott contended that the Court of Criminal Appeal erred in principle because on public policy grounds it treated evidence going to credit as not qualifying as fresh evidence.  However, accepting that the Court of Criminal Appeal was of the view that ordinarily evidence going to credit would not qualify as fresh evidence, as we read the judgment of the court, it nevertheless examined all the evidence going to credit and was of the opinion that it would not have affected the jury’s verdict in this case.

For these reasons, the application for special leave to appeal is refused.

AT 3.22 PM THE MATTER WAS CONCLUDED