Bui v The Queen

[2013] HCATrans 56

[2013] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M1 of 2012

B e t w e e n -

LANH NGOC BUI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MARCH, AT 3.05 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER, SC:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE, on behalf of the applicant.  (instructed by Grigor Lawyers)

MR G.J.C. SILBERT, SC:   May it please the Court, I appear with my learned friend, MR P.J. DOYLE, on behalf of the respondent.  Mr Doyle will make any oral submissions if called upon.  (instructed by Director of Public Prosecutions (Vic))

KIEFEL J:   Yes, Mr Croucher.

MR CROUCHER:   Thank you, your Honours.  The special leave question raised by this application is this.  In a criminal trial, in what manner must evidence connect or tend to connect an accused with a crime, in order that such evidence be capable of corroborating the evidence of an accomplice?

Your Honours will have seen that we provided the transcript of the special leave application in the matter of Cox, argued before Justice Heydon, Justice Crennan and Justice Bell.  On that application, the same point was raised, and Justice Heydon described the law of corroboration as “a bit of a mess”.  With respect, his Honour was right.  It is a mess because whereas the principles in long‑standing authorities such as Baskerville, in this Court in Doney, in the Court of Appeal of this State in McLachlan, an older case of Ridley v Whipp, whereas those cases all, as to corroboration of accomplices, are consistent with the view that evidence will only be potentially corroborative of an accomplice if it independently amounts to evidence of probative guilt, it does not have to prove it beyond reasonable doubt, but it must be in some sense probative or implicatory of guilt.  In other cases, such as Kuster, on which Justice Neave relied in coming to the court’s view in this case, it is said to be enough if the purportedly corroborative evidence generally accredits the accomplice ‑ ‑ ‑

KIEFEL J:   Is that actually what Doney says? At 171 CLR 207 at 211, it is said it is sufficient if the corroborative evidence strengthens an accomplice’s evidence:

by confirming or tending to confirm the accused’s involvement in the events as related –

MR CROUCHER:   You are reading from 211, your Honour?

KIEFEL J:   Yes.

MR CROUCHER:   Yes.  Their Honours pick up what is said by Lord Simon in Kilbourne’s Case, where they start out saying:

The essence of corroborative evidence is that it “confirms”, “supports” or “strengthens” other evidence in the sense that it “renders [that] other evidence more probable” . . . It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it “shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused” –

and they cite Baskerville – that is Lord Reading’s reasons in Baskerville, which was picking up, I think, Chief Baron Abinger’s ‑ ‑ ‑

KIEFEL J:   Then they go on to discuss circumstantial evidence in the next paragraph ‑ ‑ ‑

MR CROUCHER:   They do.

KIEFEL J:   ‑ ‑ ‑which is really what we are talking about.  We are talking about circumstantial evidence par excellence, are we not, in relation to corroborative evidence?

MR CROUCHER:   We have got to deal with it in this way, in my submission, your Honours.  There is a difference between the purpose and rationale for the need for corroboration in the case of an accomplice on the one hand, as distinct from, say, what used to be required in relation to child witnesses when years ago there was corroboration required, or in relation, say, to disputed confessions allegedly given to gaolhouse informers.  It is only when you ask that question can it be shown that it is important to understand why circumstantial evidence that is merely confirmatory of a generalised account is not corroboration.  Rather, it must be something that goes to prove guilt – not by itself, but is probative of guilt in the sense that it renders more likely what the accomplice is saying as to the disputed facts are true.

KIEFEL J:   You mean the corroborative evidence taken as a whole?

MR CROUCHER:   Even if taken as a whole, it still must be something which goes to, or is capable of proving the disputed area of concern, the crime.  This is a classic example of where the law has been misapplied.  There has been two streams of authority for some years now since Baskerville and since Doney where in child sex cases, for example – as I say, when it used to be required that there be corroboration there – it was understandable that in a case like that, where the concern about a child will be about credibility, reliability, those sorts of things, so things that go generally to accredit their truthfulness, their general story, that can be corroborative in some sense.  With, for example, a gaol informer, the touchstone often has been esoteric knowledge.  If the gaol informer has some sort of esoteric knowledge that he speaks of, that can only have come from the knowledge of the accused, then that can be corroborative.

When it comes to accomplices, there are two special things about them.  First, the dangers lurking in the evidence of an accomplice are that because he is particeps criminis – Baskerville makes it so – then he has a motive to shift ‑ ‑ ‑

KIEFEL J:   That might mean that their specific directions may be required.  That does not alter its character and effect as evidence.  That is a different question, is it not?

MR CROUCHER:   Well, it does.  It alters whether or not it is sufficient to be corroborative.  Let us tease that out a bit more, your Honour ‑ ‑ ‑

KIEFEL J:   That is an assessment question.  We are talking about admissibility, are we not?

MR CROUCHER:   Yes, and as to whether or not it can be admissible.  It cannot be admissible as corroboration unless it meets the test.  We say that that test is that it must be in some sense probative of guilt, in order to guard against these things, that because the accomplice is particeps criminis, then he has a motive to shift or spread blame.  Secondly, by definition, the accomplice will know the details of the crime because he says he was involved in it.

Therefore, concerns about the dangers inherent in the evidence of such a witness cannot be assuaged by evidence which merely might accredit, if you like, an accomplice generally.  Rather, there must be something independent that is probative of guilt or at least probative of the issues in dispute, and going back to Doney, something tending to connect the accused with the crime charged in the sense that where corroboration of the evidence of the accomplice is involved, it tends to show that the story of the accomplice of the accused committed the crime is true, not that some other agreed thing occurred, such as in this case – that there was involvement in a kidnapping earlier on and that subsequently there was involvement in disposal of a body – and not merely that the crime has been committed, but that it was committed by the accused.

None of the things left in this case went to those issues.  What was the disputed issue in this case was what happened between the time that the deceased was taken to this area and the time he was taken away.  The accomplice’s account was that, in some sense – really, in a circumstantial way – the applicant was involved in the killing of the man.  That was denied.  There was nothing in the allegedly corroborative evidence that went independently to prove that that crime occurred.  It was all neutralised.  All of the pieces of evidence that were said to be corroborative, they were agreed.  There was no dispute about those things, so the risk of danger in his evidence was not assuaged by what was said to be corroborative pieces of evidence.

KIEFEL J:   What this implies is that you are still maintaining the line that corroborative evidence must itself prove guilt.

MR CROUCHER:   Be probative of guilt, squarely.  That is the point, your Honour.

KIEFEL J:   That is not what Cross on Evidence says.  I notice you referred to Cross on Evidence and what Justice Heydon said.  At Cross on Evidence, which is at tab 9, [15165] at page 15,068 in the final sentence:

Finally, consistent with its role of confirming other evidence rather than amounting itself to evidence which necessarily leads to conviction, the corroborative evidence does not need to prove any proposition beyond reasonable doubt.

MR CROUCHER:   Beyond reasonable doubt, that is right.  There is no dispute about that part of it, your Honour.  It is not required that this independent piece of evidence be such as to prove beyond reasonable doubt that the crime was committed, but it must be probative of guilt.  There is a difference between saying something ‑ ‑ ‑

KIEFEL J:   When added to other circumstances, that is – when added to other evidence.

MR CROUCHER:   Not in our submission, your Honour.  Can we go back to Cross on Evidence and what Justice Heydon has said about it?  In the previous paragraph, [15165], in the second subparagraph, it is said:

The requirement that the corroborative evidence implicate the accused or connect the accused with the crime creates its own difficulties.  Isaacs J said this of the passage quoted above:

. . . corroboration of whatever statement requires corroboration must be by independent testimony, and . . . if it be required to implicate a person in a given act, the independent testimony must be such as of its own force to connect or tend to connect him with the act.

And later:

In other words, the independent evidence must support the story both as regards the alleged crime and the alleged criminal –

KIEFEL J:   Yes, that is the connection, and over the page in the first full sentence, the two requirements to be satisfied:

that it involves the accused and that it is consistent with the evidence requiring corroboration, although it is not necessary that it inevitably demonstrate guilt –

MR CROUCHER:   No, “inevitably” meaning “equated to beyond reasonable doubt”, but it must be probative of guilt.  There is a difference between saying something is capable of proving guilt or going towards proof of guilt, on the one hand, and saying it proves it beyond reasonable doubt.  We are not saying that it must be something that by itself proves beyond reasonable doubt guilt.  It is just another piece of evidence.

This evidence, which was relied on as potentially corroborative evidence, did neither of those things.  It was simply neutral.  It did not advance the question whether or not on the disputed area of the case, namely, whether or not the applicant was involved in a murder – and so therefore whether he was connected with the crime, or that he committed it – none of that evidence went to that question at all, it was simply neutral.  It does not matter whether you look at it combined, or piecemeal.  Combined, it does nothing.  It just simply says he was there.  That is all it can say.  On the area where the law says he is likely to be dangerous, namely, spreading blame, shifting blame, knowing about what he says happened, there is no support at all, not in a corroborative sense.

We accept, your Honours, that these things that are said, that there are inconsistencies, and this is why Justice Heydon says it is a mess, rightly so, with respect.  It has gone off track because the rationale for the particular form of corroboration in respect of the particular witness who needs corroboration has been lost.  There is a distinction on the one hand between accomplices, for the reasons we have been through, and other types.  There might be other types as well that have similar considerations, but accomplices compared with, say, child witnesses compared with, say, gaol informers, different rationale ‑ ‑ ‑

KIEFEL J:   Well, it is difficult to have one particular rationale in something like corroborative evidence, though, is it not?  It applies to connect an accused in so many different ways.

MR CROUCHER:   Yes, but this does not meet, in our respectful submission, the basic tests laid down in Baskerville, picked up by this Court in Doney, at all.

KIEFEL J:   What were the ‑ ‑ ‑

MR CROUCHER:   What were the pieces?  The essence of them were these ‑ ‑ ‑

KIEFEL J:   The pleas of guilty to kidnap and false imprisonment, the phone record of the calls between the applicant and Hargrave following the murder, and the applicant’s admission that he directed Hargrave and Johnson to the area where the deceased’s body was burnt.  The latter, in particular, you say that has no corroborative value?

MR CROUCHER:   No, because it does not connect in with involvement in the killing himself.  That is simply no more than supportive of the idea that he was involved in the clean‑up afterwards.  The Crown case was that there were several people there and involved.  By the way, a couple of those people who were on trial in respect of whose evidence the accomplice was not corroborated were acquitted, so the accomplice was not believed beyond reasonable doubt absent corroboration.  They were said to be there and involved as well, yet in relation to this man, the only meaningful difference is that these pieces of allegedly corroborative evidence were left and he was convicted, and yet they were not corroborative evidence.  Absent this evidence, it is reasonable to assume that he would have been acquitted because obviously the jury were not satisfied beyond reasonable doubt about the truth of this witness, which is hard.  There was a ground taken below, which is not a special leave point, that the verdicts did not make any sense anyway because it showed that the jury ‑ ‑ ‑

KIEFEL J:   Well, we do not need to go there, do we?

MR CROUCHER:   No, but it just shows how important this corroborative evidence was, and how there has been a miscarriage of justice in this case if the evidence was wrongly left as corroboration ‑ ‑ ‑

GAGELER J:   Well, you say that the law in this area is a mess, but the principle for Victoria has been stated quite clearly, has it not, in Kuster?

MR CROUCHER:   Yes.  I accept, your Honour, that that is what has been said, but we are challenging that; we say it is wrong.

GAGELER J:   Yes, I understand.

MR CROUCHER:   We say that it is not consistent with Doney.  It is not consistent with Baskerville.  In fact, it is even, in its own terms, misstated.  If you go to the judgment of the Court of Appeal at page 698, where Justice Neave sets out a large passage from Kuster’s Case, and you will see that in the first paragraph of that extract, this division, if you like, is set up, and it is described as:

This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime –

We challenge that.  That is wrong, with respect.  Then there is a reference to BRS.  BRS is a child sex case, not an accomplice case, so that can be put to one side.  Then in the third paragraph, the passage says:

The corroborative evidence need only render that account more probable in some material particular.  The corroborative evidence, ‘standing alone’, need not establish the commission of the crime or the accused’s involvement in it –

Then what is cited for that is Kuster itself, and Doney is cited as well at footnote 35 at 211.  That is to misstate Doney.  As we have already been through, Doney goes on to make the fundamentally different additional point at 211 that does not establish it beyond reasonable doubt – different point.  That is a level of proof difference that has not been appreciated there in Kuster’s Case, it has been picked up by Justice Neave in this case to say – we do not cavil with the idea that it need not establish something beyond reasonable doubt.  Rather, it just must be probative of guilt.

It was neither of these things, the things that were left in this case – the pieces of corroborative evidence or said to be corroborative evidence – they were neither probative of guilt nor, of course, could they get to the beyond reasonable doubt level.  They did not assist in any way to assuage the concerns that one would have about the dangers lurking in an accomplice because of his motive to shift blame, his esoteric knowledge of these matters.  This is a case which is a good vehicle to consider this question, which is important, of course, throughout the country because, of course, it applies at both common law and under the Evidence Act the question of what corroboration actually is, and what is required when you have – whether it be an accomplice or some other particular witness.  So it is an important consideration for the criminal justice system at large and, secondly, it is a good vehicle because, as I say, the verdicts in this case show that the corroboration was crucial ‑ ‑ ‑

KIEFEL J:   Well, you say it is a vehicle to resolve questions, but can I just take you back to the Court of Appeal reference to Kuster which you took us to at application book page 698?  Their Honours there quote from BRS what Chief Justice Brennan had to say.  There is nothing in that passage quoted from BRS that you would take issue with?

MR CROUCHER:   It is dealing with a sex case, so it is inapplicable.  That is the point.

KIEFEL J:   It is talking about the quality of corroborative evidence, evidence which:

there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated.

MR CROUCHER:   Yes, we do take issue with that, the second part of that, as your Honour has ‑ ‑ ‑

KIEFEL J:   You are taking issue with settled authority?

MR CROUCHER:   Well, it is not dealing with an accomplice, your Honour.  It is dealing with a complainant in a child sex case.

KIEFEL J:   You are carving out accomplice corroborative evidence as warranting special attention?

MR CROUCHER:   Yes, we are.

KIEFEL J:   Are you saying that, in effect, this Court should be invited to develop the law of corroboration to deal with that specific area?

MR CROUCHER:   Yes, because of the special nature of the danger of an accomplice.  The authorities old and new recognise that what will be corroborative cannot be predicted in every case ahead of time.  It depends on the facts and circumstances, and how the case is run, but there are some things ‑ ‑ ‑

KIEFEL J:   Quite so, that is why you cannot establish general propositions, except at this level of generality.

MR CROUCHER:   Well, the level of generality which we are plumbing for, your Honour, is that at least in relation to accomplices, for it to be of any worth at all as corroboration, it must be probative of guilt.  The authorities are inconsistent on this issue, and what is more, it has led to, in this case, we say, a miscarriage of justice.  The other thing about it that is relevant, it is submitted, your Honours, is that Justice Neave herself

recognised that this evidence was at best equivocal, and so much is said at page 698, paragraph 72.

KIEFEL J:   No, part of it taken on its own, particularly the phone calls, might be equivocal, but taken together, it had corroborative effect.

MR CROUCHER:   I am just reading from the first sentence of 72.  Your Honour is right to say that her Honour talks about one part of it in particular, that it was too equivocal by itself, but taken with the others, it was ‑ ‑ ‑

KIEFEL J:   That is what they call the corroborative evidence taken together.

MR CROUCHER:   All right.  I notice the red light is on, your Honour.  If the Court pleases.

KIEFEL J:   We need not trouble you, thank you.

In this matter, the Court of Appeal of the Supreme Court of Victoria held that evidence of a Crown witness could be corroborated by evidence capable of supporting that evidence.  The applicant submits that corroborative evidence must be probative of guilt where it concerns evidence of an accomplice.  No reason is shown to doubt the correctness of the decision below.  Special leave is refused.

MR CROUCHER:   If the Court pleases.

AT 3.27 PM THE MATTER WAS CONCLUDED