Bronson v The Queen- Pollock v The Queen

[1994] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S178 of 1993

B e t w e e n -

JAMES LESLIE BRONSON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
              Sydney        No S179 of 1993

B e t w e e n -

RONALD WILLIAM POLLOCK

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Applications for special leave
  to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 2.21 PM

Copyright in the High Court of Australia

____________________

MR S.J. COOK:   I appear with my friend, MR E. PETERSEN, for the applicant.  (instructed by La Fontaine)

MR N.R. COWDERY, QC:   May it please the Court, I appear with MR P.G. BERMAN, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public  Prosecutions (New South Wales))

MR COOK:   Your Honours, the special leave application that we bring before this Court concerns, really, just a question that always is a problem in conspiracy trials and that is when co-conspirators assist the Crown in obtaining a conviction.  In this particular case, we had the architect of the act of conspiracy, Mr Shakespeare, who was indemnified by the Crown and it was his evidence, along with another co-conspirator, Mr Peak, who received a substantial benefit by giving evidence against the other co-accused in relation to his sentence.  The situation was that at the end of that particular trial the evidence of Mr Shakespeare was substantially abandoned by the Crown because of its unreliability. 

In the addendum to the application for special leave to appeal, at page 16, about line 20, the trial judge puts it in these words:

Mr Bodor, as you may think very eloquently and very conclusively, has gone through the evidence of Mr Shakespeare in a way which destroys him to the extent where you must be wondering just what happened as far as this trip was concerned and Danny Shakespeare.  That concern no doubt would be added to by the fact that the Crown - as I understand the Crown address to you - was not relying on Mr Danny Shakespeare to any great extent at all.

Clearly, we had a situation where an indemnified witness who is supposed to be a witness of truth - and that is why that receive this indemnification - has given evidence of such an unreliable nature that even the Crown does not see fit to rely on it.  This is a witness who has given evidence for two days, on the Crown’s own case is the architect of this conspiracy and now he is just abandoned.  In my respectful submission, that really must raise a question of great public importance about how the Crown prosecutes such cases.  It should be, in my respectful submission, the duty of the Crown to make sure that evidence is given to it or will be used by indemnified witnesses is of such a credit that they will not take this course of action come near to the trial.

BRENNAN J:   How do they know whether ‑ ‑ ‑

MR COOK:   I will just come to that in this particular case.  The problem that I had, Your Honour, and I will be up front with you in relation to this, and this is alluded to in paragraph 9 of the respondent’s application, is that certain matter, which should have been raised, were not raised in the Court of Criminal Appeal; that is that this Mr Shakespeare had given evidence in the previous trial which finished one day before the trial that we are now concerned with relates to and that he substantially gave evidence of exactly the same subject-matter as the second trial.

In fairness, that was not put at the Court of Criminal Appeal.  However, in my respectful submission, this is a matter of such importance that it is something that this honourable Court should take into account.

BRENNAN J:   How?

MR COOK:   The fact is that there is evidence which arose out of the trial itself which we tried to incorporate in relation to the actual transcript which shows that Mr Shakespeare actually gave evidence in relation to these matters at the previous trial.

TOOHEY J:   But say the Crown had not called him, what sort of response would there have been from the defence?

DAWSON J:   You would have been very annoyed by it, would you not?  You would have said, “Well, they should have called him”, so you could show how discredited he was.

MR COOK:   The situation, in my respectful submission, is this is not a Jones v Dunkel situation.  He is a co‑conspirator here.  He cannot be called upon to give evidence that would in some way incriminate him.  The situation is that when the Crown views a witness of this nature they should, in my respectful submission, be cogent to the fact that at the end of the trial they are going to be putting to the jury that this is a witness of truth.  The very nature of the criminal trial is undermined if there is no duty in the Crown to produce evidence before a jury which is suspect to such a point where it itself does not see fit to put it to the jury.

DAWSON J:   That is not a proposition that can be supported, is it?  The Crown does not have to be satisfied that every witness it calls is a witness of truth.  Lots of Crown cases would be very truncated if that was so. 

TOOHEY J:   It certainly underestimates the quality of cross-examination.  Many a witness has given evidence that is apparently credible until cross-examined. 

MR COOK:   I appreciate that, Your Honour.  The situation, however, in this particular case, I would say, is that this indemnification that is given by the Attorney-General’s Department to such witnesses is always predicated on the fact that it will be a witness of truth.  In my respectful submission, there was an opportunity for the Crown to see this witness and to see this witness cross-examined in relation to matters

which substantially went to the second trial with which we are concerned with here and that that should have raised the issue in their mind about whether or not they should have used this witness as a witness of truth. 

BRENNAN J:   Well, that is the proposition?

MR COOK:   That is the proposition.  The approach of the Court of Criminal Appeal was substantially, Your Honours, to say, “Well, no one relied on Mr Shakespeare, therefore we just dismiss that and we look at other evidence that was available to the jury on which they could have convicted these two men”.  I really do not have anything to put in relation to that because obviously it was open to a jury to .....other evidence.

However, on the grounds of being unsafe and unsatisfactory, we have a situation here where evidence is heard by a jury for two days and then at the end of a trial which, from recollection, went for nine days, this evidence is just abandoned and we say, “Look around at the other evidence and if you’re convinced by this other evidence then that is sufficient”.  In my respectful submission, that is not a very viable way to conduct a criminal matter and it is a matter that should cause great concern in the community and, as a matter of public policy, this Court should address itself to such issues as the use of indemnity by criminal witnesses.  Those are my submissions.

BRENNAN J:   Thank you, Mr Cook.  The Court need not trouble you, Mr Cowdery.

There is no question of principle involved in the calling by the Crown of a witness who is discredited and whom the Crown abandons as a witness of truth.  If an alleged co-conspirator is available to give evidence of the conspiracy alleged and the Crown calls that person, there is no abandonment of the witness as a witness of truth of the conspiracy, even if the Crown acknowledges that that person, albeit a material witness, has been so discredited that the jury ought not to find an accused guilty on the strength of that person’s evidence. 

Accordingly, this is not a case in which special leave should be granted and special leave is refused. 

There were two applications there, I think, one from Mr Bronson and one from Mr Pollock.

MR COOK:   Yes, they were on the same grounds.

BRENNAN J:   Both applications are refused. 

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE