Conway v The Queen

Case [2002] HCA 2

HIGH COURT OF AUSTRALIA

GAUDRON ACJ,
McHUGH, KIRBY, HAYNE AND CALLINAN JJ

JOHN TERENCE CONWAY   APPELLANT

AND

THE QUEEN  RESPONDENT

Conway v The Queen
[2002] HCA 2
7 February 2002
C11/2001

ORDER

Appeal dismissed.

On appeal from the Federal Court of Australia

Representation:

S W Tilmouth QC with J Pappas for the appellant (instructed by pappas j. – attorney)

P S Hastings QC with S J Odgers SC and P J de Veau for the respondent (instructed by Director of Public Prosecutions (ACT))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Conway v The Queen

Criminal law – Evidence – Evidence Act 1995 (Cth) – Unreliable evidence – Co‑offenders – Corroboration – Directions to jury regarding corroboration of evidence given by co-offenders.

Evidence – Corroboration – Warning about acting on unreliable evidence – Directions to jury – Requirements of Evidence Act 1995 (Cth) – Misdirection to jury – Whether misdirection requires that appeal be allowed and new trial ordered in the absence of substantial miscarriage of justice.

Appeals – Federal Court of Australia – New trial – Misdirection –Grounds on which new trial may be ordered.

Words and phrases – "evidence" – "on any ground upon which it is appropriate to grant a new trial" – "substantial miscarriage of justice".

Evidence Act 1995 (Cth), ss 164, 165.
Federal Court of Australia Act 1976 (Cth), s 28(1)(f).

  1. GAUDRON ACJ, McHUGH, HAYNE AND CALLINAN JJ.   The appellant was convicted in the Supreme Court of the Australian Capital Territory of the murder of his wife, Ulrike Conway.  Kathy Marie McFie was also convicted of the murder of Mrs Conway.  The appellant and Ms McFie had pleaded not guilty and had been tried together.  Two others, Barry Steer and Daniel Scott Williams, had also been charged with the murder of Mrs Conway but each had pleaded guilty and had been sentenced before the trial of the appellant and McFie.

  2. Mr Steer and Mr Williams admitted that they had entered Mrs Conway's home, late at night, and had injected her with a fatal dose of heroin.  They told police that they had done this at the request of the appellant and McFie and that the appellant and McFie had agreed to pay them $15,000 for doing it.  Both Steer and Williams gave evidence at the trial of the appellant and McFie.

  3. The issues that arise on the appeal to this Court concern directions given to the jury by the trial judge about corroboration of the evidence given by the co‑offenders, Steer and Williams.  These reasons will seek to demonstrate that the trial judge misdirected the jury about these matters.  There having been a misdirection of law the question then becomes whether notwithstanding that the points thus raised might be decided in favour of the appellant, the appeal should nevertheless be dismissed on the basis that no substantial miscarriage of justice has actually occurred[1].

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Conway v The Queen [2002] HCA 2
Case
[2002] HCA 2
Decision Date

CaseChat Overview and Summary

The case of *Conway v The Queen* involved an appeal to the High Court of Australia concerning the conviction of the appellant for murder. The prosecution's case alleged that the appellant, a police officer, procured the murder of his estranged wife, with the assistance of two co-offenders, Williams and Steer, and his de facto partner, McFie. The central dispute revolved around the directions given by the trial judge to the jury regarding the evidence of the co-offenders, who were considered unreliable witnesses.

The legal issues before the High Court included whether the trial judge had misdirected the jury concerning the corroboration of evidence given by co-offenders, and whether such a misdirection, if established, necessitated a new trial under the *Evidence Act 1995* (Cth). The Court was required to consider the application of the "proviso" in appellate law, which allows an appeal to be dismissed despite a misdirection if no substantial miscarriage of justice has occurred.

The High Court, in dismissing the appeal, reasoned that while there was a material misdirection in the trial judge's summing up regarding the corroboration of the co-offenders' evidence, this error did not occasion a substantial miscarriage of justice. The Court found the prosecution's case against the appellant to be overwhelming, particularly due to a recorded conversation between the appellant, McFie, Williams, and Steer. This recording, which captured the appellant responding to inculpatory suggestions from the co-offenders, was considered highly persuasive evidence of his involvement in the murder. The Court applied the principle that an appellate court may refuse to order a new trial if an established error could not reasonably have influenced the result, concluding that the appellant's conviction was inevitable given the totality of the evidence.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

In the present matter, the case against the appellant was overwhelming. Having regard, particularly, to what was said and done at a meeting that took place in the early hours of the morning on which the appellant and McFie were arrested, between those two persons and the two co‑offenders, the appellant's conviction was inevitable. His appeal should, therefore, be dismissed.The facts It is not necessary to describe fully the elaborate body of evidence that was called at trial. In order to explain the corroboration questions that arose, it is, however, necessary to say a little more about the prosecution's case. In 1997, the year in which the murder occurred, Williams was aged 21. He was unemployed, and a substantial heroin addict. Steer, then aged 29, was not a user of heroin but had a substantial cannabis habit. He too was unemployed. Williams, Steer and McFie each lived in flats very close one to the other. The appellant, a police officer, met McFie in the course of his duties. The appellant's relationship with his wife had then been unhappy for some time. By March 1997, the appellant and his wife had separated, and the appellant, who had some time earlier commenced a sexual relationship with McFie, went to live with her. There were proceedings in the Family Court of Australia between the appellant and his wife concerning the custody of their son and Mrs Conway obtained an interim order for his custody. During April and May 1997, Mrs Conway was very depressed and there was a deal of evidence at the trial of her speaking about taking her own life and of events consistent with her preparing, if not attempting, to do so. According to the evidence given by the co‑offenders, at some time in March or April 1997 the appellant and McFie asked Williams to kill Mrs Conway and told him that it had to look like a heroin overdose. Evidence was called at trial from which it would have been open to the jury to conclude that on 25 April 1997 the appellant gave Mrs Conway a cup of coffee containing heroin. This evidence was disputed and it is not possible, or necessary, to form any view about its truth. There was, however, undisputed evidence that on the next day, 26 April 1997, the appellant handed to police, two foils which he said he had found at his wife's house and which, on analysis, revealed traces of heroin. Why he should do this was never satisfactorily explained. Mrs Conway was killed on 3 May 1997. There was evidence that both shortly before and after this time Williams had sums of money larger than normal. In the course of their investigations, the police interviewed the appellant and McFie. It is accepted that, in those interviews, each told lies, including making denials of any sexual relationship between them. About three weeks after Mrs Conway's death the appellant and McFie moved into the house where Mrs Conway had lived. On 27 July 1997, police arrested the two co‑offenders. In the early hours of the next morning, at the request of police, they went to the house where the appellant and McFie were living. Steer wore a listening device. It was not disputed at the trial that Steer and Williams had a conversation with the appellant and McFie. The authenticity of the tape recording, to which we listened in the course of oral argument, and the accuracy of the transcription that was made of that tape recording were not challenged. Not surprisingly, when the appellant gave evidence in his defence at his trial, he was cross‑examined extensively about what was said and done at this meeting.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH, HAYNE AND CALLINAN JJ (dissent) KIRBY J
The appellant's failure, virtually until the end of his trial, to advance the case that he was no more than a post-offence supporter of Ms McFie is also compatible with the foregoing conclusion. Although love and loyalty can sometimes cause blindness to reality, by the time the appellant, an experienced police officer, was facing a trial for murder, he would have been well aware of where his personal interests lay. His delay in conducting a "cut throat" defence[183], so as to distance himself from Ms McFie, suggests an appreciation that this would have been unconvincing because of the circumstantial evidence that bound them together. Such involvement also confirmed the testimony of the accomplices.[183]Conway (2000) 98 FCR 204 at 271 [272].Conclusion and orders By a different route, I therefore come to the same conclusion as that expressed in the joint reasons. There was a material misdirection of the jury at the appellant's trial. On the face of things, this established an error in the trial. In terms of the appellate powers of the Federal Court expressed in its Act – the only law applicable in this respect – such error entitled the appellant to an order for a retrial unless the proper exercise of the Federal Court's appellate powers in the circumstances justified it refusing to "set aside the verdict" and to "grant a new trial". Relevantly, such relief might be refused where the established error could not reasonably have influenced the result of the appellant's trial. An analysis of the entirety of the evidence shows how a compelling prosecution case was eventually constructed against the appellant. Judged against this case, the demonstrated error in the trial was not material. It could not reasonably be supposed to have influenced the result. The appellant's verbal responses to the intrusion of his co-offenders were not consistent with his complete innocence of involvement in the financial and other dealings that led to the murder of the deceased. If this recorded conversation is given weight, the only hypothesis compatible with the appellant's innocence of murder was a proposition that the murder was planned by Ms McFie who involved the appellant only after the deceased was out of the way. However, that hypothesis is not compatible with the objective evidence linking the appellant throughout to the actions of Ms McFie. These conclusions therefore sustain the decision that the Federal Court reached and the judgment that it entered. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

These were strong, clear and accurate directions. The significance of the judge's mistaken specification of the four items of corroborative evidence as illustrations must be considered in the foregoing context. Appellate courts should avoid attributing excessive importance to over-subtle distinctions in judicial directions to juries. That is why such directions must be read as a whole and demonstrated mistakes considered in the context of the entire charge[153].[153]Zoneff v The Queen (2000) 200 CLR 234 at 260 [65].Appellate consideration of a recorded conversation It is exceptional for oral evidence to be heard in this Court, particularly when exercising its appellate jurisdiction. In part, this is because appellate jurisdiction of its nature is ordinarily exercised on the basis of the printed record. In part, it is because this Court has established[154], and reaffirmed[155], the rule, that new evidence may not be received in an appeal to it, however cogent that evidence might be to the issues or to demonstrating that a miscarriage of justice has occurred. Yet, in this case, this Court heard a segment of oral evidence. It was not "fresh" because it had been adduced at the appellant's trial. Indeed, it was part of the trial record. It consisted of a recording of a conversation, procured by a listening device fitted to one of the accomplices. It captured the voice of the appellant responding, after the alleged offence, to inculpatory suggestions in ways that appear incompatible with his lack of involvement in the murder of his wife. [154]Mickelberg v The Queen (1989) 167 CLR 259 at 271, 275, 298-299.[155]Eastman v The Queen (2000) 203 CLR 1. In its forensic setting, the recorded conversation was extremely powerful. The four persons accused of planning, procuring and effecting the homicide participated in it. The recording conveys, as no printed transcript could, the desperation of the accomplices. The listener knows that they had made an arrangement with police to secure, and record, the responses of the appellant and Ms McFie. Awakened from their sleep at 4 am, the latter appear equally desperate to placate their unwanted visitors and to rid themselves of them. The drama is heightened by the fact that the listener also knows that, waiting in the street outside, were police officers, one-time colleagues of the appellant. Within minutes of the return of the accomplices with their recording equipment safely in police possession, together with evidence of money given to them by the appellant, there was another knock at the door. The appellant and Ms McFie were confronted, arrested and charged with murder. The Full Court described the evidence, recorded in this way, as "devastating"[156]. So indeed it is. On the face of things, it appears to establish, in the most direct way possible (from the mouth of the appellant himself) that he had agreed to pay the accomplices for effecting the murder of his wife. If a court came to the conclusion that this established that the appellant was guilty of the murder it might seem to justify, in a common form regime, the application of the "proviso", notwithstanding a demonstration by the appellant that material misdirections of the law had occurred in the course of the trial judge's summing up to the jury. Would it matter, ultimately, that some mistake had happened on the way to the jury's verdict of guilty, if it could be shown with certainty, that the appellant was indeed guilty of the offence of which he had been convicted[157]? If that were so, no miscarriage of justice would have resulted from any such misdirection. The appellant would not have lost a chance, reasonably open to him, of acquittal of the offence[158]. His conviction would be classified as "inevitable"[159]. The misdirection would be treated as an immaterial one which could not have affected the result. The appellant's conviction would stand. Does the same reasoning apply in the present case where the statutory regime is different?[156]Conway (2000) 98 FCR 204 at 260‑261 [225](o). The substance of the evidence is set out in (2000) 98 FCR 204 at 225-226 [67](o).[157]cf Festa v The Queen (2000) 185 ALR 394.[158]Wilde v The Queen (1988) 164 CLR 365 at 372; Glennon v The Queen (1994) 179 CLR 1 at 13.[159]Mraz v The Queen (1955) 93 CLR 493 at 514.Caution in the use of such recorded testimony