Conway v The Queen

[2001] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Registry  No C10 of 2000

B e t w e e n -

JOHN TERENCE CONWAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 JUNE 2001, AT 8.49 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MR J. PAPPAS, for the applicant. (instructed by pappas, j. – attorney)

MR R.C. REFSHAUGE, SC:   If the Court pleases, I appear with my learned friend, MS P.J. de VEAU, for the respondent. (instructed by the Director of Public Prosecutions)

GUMMOW J:   Yes, Mr Tilmouth.

MR TILMOUTH:   May it please the Court, there is initially the extension of time matter, your Honour; it is not opposed.

GUMMOW J:   Yes.  Yes, you have that extension.

MR TILMOUTH:   If the Court pleases.  Your Honours, in this matter it was accepted on all accounts, and indeed by the prosecution, that the case was heavily dependant on the accomplice evidence of Steer and Williams.  Accordingly, your Honours, even though the uinform Act now applied, his Honour gave, what might be regarded as a very traditional corroboration warning and, indeed, his Honour directed the jury that it was dangerous to convict on a number of occasions, ultimately to that effect.

Now, if the Court pleases, when it came to considering items of evidence that might be corroborative, his Honour, in the end result, identified for the jury 18 items of evidence ‑ ‑ ‑

GUMMOW J:   Yes.

MR TILMOUTH:    ‑ ‑ ‑but, if the Court pleases, what he did not do in the end result was distribute it, as it were, those items as between one or other of the accused or both of them, and that matter was a central feature in the argument before the Full Federal Court and in ‑ ‑ ‑

GUMMOW J:   Yes, now which particular passage in the judgment of the Full Court on that point do you join issue with?

MR TILMOUTH:   Your Honours, the reasoning process commences in the application book at page 220, paragraph 225, where the court acknowledged the argument and, in the third line of that paragraph, your Honours, acknowledged that:

If that submission were correct, there would undoubtedly have been a miscarriage of justice.

And then it went on in the following pages, your Honours, to go through each of those items in some detail and at page 225, if the Court pleases, paragraph 226 at the bottom, it determined that, in the third line:

Four -

of those items, four of those 18, were:

wrongly identified as being capable of constituting corroboration.

So we are down to 14.  At 227 of the application book, your Honours, the court held, however, to paraphrase paragraph 232, that those four items which were wrongly left to the jury were of “minimal importance”, line 3, and “nebulous”, line 4.

Now, if the Court pleases, without going into detail, we do not accept that.  Indeed, one of those four items was put by his Honour, the learned trial judge, as being strongly corroborative.  Now, what the court did however ‑ ‑ ‑

HAYNE J:   Which was that?

MR TILMOUTH:   It was item (e), if the Court pleases; what has been labelled as item (e).

Can I then take your Honours from 227 to 228 and 229, where the court dealt with the very argument that I just flagged as being, in my submission, of special leave significance, and that is the failure to distribute what remained, as it were, of the 14 items as between the co-accused.  The court accepted at 229, paragraph 239, the principle, and referred to Checconi’s Case and Kalajzich.  Both of those cases, your Honours, were conspiracies, in the case of Checconi, and Kalajzich was a case of murder and conspiracy to murder, and they accepted the principle that where you had co-accused, even where they were charged on a common purpose, joint criminal adventure or conspiracy basis that, nevertheless, the existing principle dictated that the item, said to be corroborative, had to be distributed as between them and not generally, but concluded, if the Court pleases, at paragraph 243 on page 231, and perhaps I should read the last four lines of the previous paragraph, second line on page 231:

These acts and declarations where admissible against Conway provided that they fell within the ambit of the “Co-conspirator rule”, ie provided there was “reasonable evidence”, independent of McFie’s acts and declarations, of Conway’s involvement in the plan to have the deceased murdered.

Paragraph 243:

There seems no reason in principle why such evidence, if admissible against Conway, could not also be capable of constituting corroboration of the accomplice evidence in his case.

Now, if the Court pleases, it is that broad proposition and, in my submission, quite new proposition, which grounds the first special leave point.

HAYNE J:   Can I go back a stage?  The Full Court reasoned, did it not, one, there were errors; two, there it was a proviso case?

MR TILMOUTH:   In effect, yes.  But, on the basis, may it please your Honour, that the 14 remaining items said to be corroborative could be corroborative against Conway, even though they normally would not be, simply because of the co-conspirator rule, and that is quite unfounded, in our submission, in principle, no authority is cited in the Full Court and, indeed, in my learned friend’s argument to support the proposition, and it flies directly in the face of this Court’s decision in Doney and Baskerville, of course, which Doney applied, which specifically says that the confirming or strengthening evidence must not only confirm that the offence took place, but it was the accused who committed it.

Now, in my submission, those remaining 14 items may well have been admissible under the co-conspirator rule, but that said nothing about their corroborative capacity.  Their corroborative capacity depended upon the nature of the evidence and the issues which they were said to go to, to strengthen or confirm.  And, in our submission, the proposition ‑ ‑ ‑

HAYNE J:   What influence, though, if any, does the course of trial have on this, most especially the fact that at trial no objection was taken by your side?

MR TILMOUTH:   Well, if the Court pleases, the point was raised by McFie, for the defence ‑ ‑ ‑

HAYNE J:   Just so.  The point was out, but your side said nothing.

MR TILMOUTH:   No, but the point was made, if the Court pleases.  Your Honours, at page 80 of the application book ‑ ‑ ‑

HAYNE J:   Counsel have to be given some credit for knowing what is going on at the trial in which they are engaged and if they choose to stay silent, why should we not conclude that they stay silent for a very good reason?

MR TILMOUTH:   If the Court pleases, it is not possible, in my submission, to identify any legitimate forensic reason for the point not being raised, because it could only have favoured Conway.  More than that, if the Court pleases, at page 80 and at 81, Mr Pappas had started to make submissions about corroboration, at line 25, in which he said at line 26:

that puts the value of that potentially corroborative evidence far too highly against my client.

And he continued with another submission at page 81.

HAYNE J:   But what did counsel mean by saying, it may be corroboration of that?  May be corroboration against his client?

MR TILMOUTH:   No, not in my submission, not in the way it was left by his Honour.  But, your Honours, the ultimate point is at page 82, the submission was put by Mr Thomas from line 5 and follows, and that being so, this very issue was before the trial judge.  In my submission, if the Court pleases, why the application of the proviso came here was not really because of that failure, even if one accepts it, but it was because of the court’s ruling at paragraph 243 at page 231, that the evidence was admissible on a – the proviso was applied, not because of that, but because their Honours took, in my submission, a novel view that the evidence got in through another route, and I have made my submission about that, that it is wholly unsupported by principle.

Could I add this, if the Court pleases, on the general importance issue?  This being a statement, a considered statement, of a Full Bench of the Federal Court, is practically speaking, binding on single trial judges throughout the country on the issue, and it is a far-reaching proposition, unmistakably, in my submission.

GUMMOW J:   Now you have been addressing on paragraph 18 and following, have you not, of your submissions at 276?

MR TILMOUTH:   Yes I have, if the Court pleases, yes.  Yes, may it please your Honour, or 266 to 267 I have been addressing, and 268 really is where all of this matter ‑ ‑ ‑

GUMMOW J:   Yes, 266 to 267.

MR TILMOUTH:   Yes, that is right; I have done it slightly out of order because, in our submission, this is in rank, as it were, the most important point.

GUMMOW J:   Yes, and the respondent’s reply to that is at 278 paragraph 18 and following.

MR TILMOUTH:   Yes, and as I have pointed out, the respondent is unable to point to any case which supports the principle which the Full Court in those two lines, at 231, came out with, which, in my submission, is quite novel, quite far reaching and, as I have put it, could be practically binding on single trial judges working a completely new principle.

The next matter I address, if the Court pleases, is what was called the “coffee incident”.  This is the incident, your Honours, in which ultimately the Crown said, that the applicant had put heroin in his wife’s coffee on Anzac Day, 25 April.  Your Honours, in brief, it was admitted initially by the learned trial judge purely on a relationship basis, Wilson v The Queen, a general basis of admission; free of any similar fact or high probative value basis, Pfennig, or 96 or 97 of the Evidence Act, coincidence or propensity. 

However, if the Court pleases, the way it was left ultimately to the jury was quite different.  The Crown had submitted that that act was part of a mosaic, the mosaic being the evidence of the neighbours, the diary entry and the like, suggesting that heroin was put in the coffee early in the morning of Anzac Day and to quote it, a “preparatory act to murder”.  Now, if the Court pleases, that being the case, it clearly went beyond being mere relationship evidence and, in fact, if accepted that heroin was put in the coffee, was plainly highly probative of guilt.  It cannot be, in our submission, viewed in any other way.

Now, if the Court pleases, this appears at page 73 of the application book in his Honour’s directions to the jury.  At line 28 his Honour directed the jury:

McFie is showing an interest in heroin and you will remember the mosaic –

the mosaic is plainly the Anzac Day incident - 73 of the application book –

that the Crown put before you about why she was interested in heroin.  She was doing it for Conway.  Conway had a sinister reason for getting heroin and giving it to the deceased.  It is a matter for you as to whether you accept that evidence.  If you accept that evidence that it happened it is a matter for you as to whether you regard it as corroboration.

So it plainly went on a probative basis, in my submission.  At page 90, his Honour dealt with it in the context of motive.  Line 1, your Honours can see, motive is introduced.  At line 15, his Honour further directed:

As I say, motive tends to show that the person in fact did the act.  It is sort of subsidiary to the question of probability.  The Crown say to you Conway had a motive, complex, mosaic, but he had a motive.

And so on.  So it was put there plainly on a motive basis.  At page 93, if the Court pleases, at line 8, the new paragraph:

Either thereafter or before the Crown says, at a time about which again it cannot be precise, McFie purchased heroin from the group of people who were living at the Stuart Flats.  The Crown says the heroin was given to Conway who in turn caused it to be ingested at least on 25 April, Anzac Day, by Ricky Conway, to set up the suggestion that Ricky Conway – to set up the suggestion falsely that Ricky Conway was a heroin user.

So, if the Court pleases, there can be absolutely no doubt that the way it went to the jury went well beyond mere relationship evidence and was highly probative of guilt if accepted.

Now, the way the Full Court dealt with that, may it please your Honours, was to accept that it went to the jury on the wider basis and that appears at page 183, paragraph 85, the last three lines:

The jury were instructed only that the evidence concerning the coffee incident could be used as “relationship evidence”, relevant to motive, and that it might also be relevant, in a non-propensity way, as evidence of an act preparatory to murder.

Now, as to that, one might quibble with words, but if heroin was procured by Conway for the Anzac Day incident, it plainly was evidence of intent to kill, if the Court pleases.  It was a preparatory act and it cannot be viewed in any other way.

At 187 to 188 of the application book, your Honours, their Honours recognised for their purposes at paragraph 97 at 187 in the first instance that it was not a relationship of tendency question under sections 97 or 98 of the Act.  It is also said at page 188 at page 102 that the Pfennig principle did not apply, and our submission is, given the way it went to the jury, that has to be wrong because it was put on a highly probative basis to the jury, in effect.  If one accepts it, it could go to the jury on that basis.  What is fatal to the conviction, of course, is there were no proper directions about use and misuse on that footing.

Then, may it please your Honours, at 192, the Full Court went on to decide, between 188 and 192, that, in any event, there was satisfactory evidence - and I am now going to 192 - that there was proof or no reasonable explanation other than the fact that heroin was administered in the coffee on Anzac Day.  Your Honours can see the last bullet point of 192.  Part of the Full Court’s reasoning to reach that conclusion is:

The deceased’s complaints to her neighbours, and to Constable Dix –

this is about line 7 on 192 –

regarding Conway’s having put a drug into her coffee on the morning of the coffee incident.  The deceased told Constable Dix that her coffee had a bitter taste to it, and told Mrs Skellern that she could see some undissolved white powder at the bottom of the cup.

Now, if the Court pleases, we do not accept that conclusion, but the problem anyway is, as I shall demonstrate if we have time, is that the Full Court probably ruled that the evidence of all the neighbours, except one, Mrs Dillon, was inadmissible under the Act.  What I am putting to your Honours is that the court’s ultimate conclusion about it being open to find beyond reasonable doubt there was heroin in the coffee was based on inadmissible evidence which the court really accepted was inadmissible.

The other flaw, may it please your Honours, appears at page 207, at paragraph 170, the last two lines:

It was not necessary in order to reach a conclusion of guilt –

this is in relation, in my submission, to the coffee incident –

for the jury to be satisfied beyond reasonable doubt that the substance administered by Conway was heroin.

Now, in my respectful submission, that cannot be right.

GUMMOW J:   Sorry, whereabouts are you?

MR TILMOUTH:   Page 207, the last two lines of paragraph 170. 

If one goes back to the original admission and says, “Well, it is relationship evidence”, it was plainly put to the jury as probative of guilt and if it was a preparatory act to murder, it was an indispensable link in the chain of reasoning towards guilt.  Shepherd’s Case dictates there had to be proof beyond reasonable doubt.  If it went to pure motive, Penney’s Case in this Court also says that there must be a direction, ultimately, that the jury had to be satisfied beyond reasonable doubt that heroin was in the coffee, and, of course, if it went on a wider basis, either as propensity or coincidence or on the Pfennig basis, plainly there had to be a direction to the jury.  You would have to find, members of the jury, that that was heroin in the coffee on 25 April, Anzac Day, before you could use that evidence as evidence of a preparatory act to murder.  So, in our submission, that is the second important point.  In my submission, the law on relationship evidence remains unsatisfactory, particularly following divisions of opinion in this Court in Gipp’s Case in particular.

Now, your Honours, I did say that in relation to the finding that it was open to find beyond reasonable doubt that there was heroin in the coffee was based on inadmissible evidence.  That appears at 197 and following of the appeal book and because of the time, I have to cut it short, if the Court pleases.  But at paragraph 132 and following, all that the court did, in essence, was rule that Mrs Dillon’s evidence was admissible and that appears at 201, ultimately, paragraph 145; but on a different basis than the trial judge allowed it in under section 65.  The court ruled, in essence, that the statement about the coffee incident by the deceased to Mrs Dillon came soon after the events, in fact, it was 10 hours, if the Court pleases.  Your Honours will see – I am sorry to go backwards in the application book, but in 198, paragraph 136, their Honours found it:

unnecessary, having regard to our finding in relation to Mrs Dillon, to consider whether or not the deceased’s statements to Mrs Skellern, Mrs Noordhof and Constable Dix were made “shortly after” the coffee incident. 

Your Honours will remember they used those statements, as I have already demonstrated, to find that it was open to find heroin was in the coffee on Anzac Day.  Those statements were, in substance, similar to that made to Mrs Dillon:

If Mrs Dillon’s testimony was admissible, there could be no real prejudice to Conway from the admission into evidence of what was, in essence, the same account as that given by Mrs Dillon –

We do not, if the Court pleases, accept that.  There are a number of these statements and there may well have, in the jury’s mind, be force in numbers.  In any event, the court went on to find that the account to Mrs Dillon was unreliable and that is why they said that the judge was wrong in admitting it under that part of section 65, but said it was admissible under the representation made soon after.  But given that it was unreliable, clearly there would have to be directions about the dangers of relying on it as it stood, standing alone.

Your Honours, I notice the red light is on.  If the Court pleases.

GUMMOW J:   Thank you Mr Tilmouth.  Yes, Mr Refshauge.

MR REFSHAUGE:   If the Court pleases.  In our respectful submission, the Full Court of the Federal Court was right in relation to both matters.  In relation to the corroboration, there was, as the court found and does not seem to be challenged, reasonable evidence that there was a combination and so the evidence of participation in the combination was admissible as a result ‑ ‑ ‑

GUMMOW J:   What do you say about Mr Tilmouth’s focus on paragraph 243 at page 231?  He says that raises an important question of principle.

MR REFSHAUGE:   Your Honour, we say it does and we say it for this reason:  that what is clear Ahern and is now clear in section 87 of the Evidence Act, that the “co-conspirator rule” is based on the principle of agency and we say that as a matter of principle, the agency relationship would mean, in order to allow acts in furtherance of the combination to overcome the “hearsay rule” and to be admitted, that it is, in principle, right that acts which confirm that agent’s participation would, by virtue of that, confirm the vicarious liability of the principal or the other party in that process.  So that it would defy commonsense to say that if the acts were culpable, inculpatory, in relation to general matters, that when it comes to the question of corroboration of an accomplice’s evidence, suddenly they cease to have that capacity which they would in commonsense and in principle ordinarily be expected to have.  So it would flow through from the way in which that relationship is now to be understood.  So that it would be clear that, with respect, the Federal Court is right, we would say.

Although there may be no clear authority, in this case it is clear that, first of all, we are talking not about a case where there is no independent evidence of combination – there is clearly independent evidence – and, indeed, we are not talking about a case where the corroboration did not, in part, identify the applicant himself.  There were at least four items of corroboration in which the applicant was already involved specifically and personally.  But, in any event, those other items of corroboration, except in one case, were all items of corroboration where the other party, McFie, was acting in furtherance of the combination.

So that we say that this is not a case where the issue of whether some theoretical distance kind of element of corroboration was used, and was used improperly and we say that, in principle, the Federal Court, with respect, was right. 

Your Honours, in relation to the issue of the propensity evidence, we say that it was never a case that the “coffee” incident was admitted only for relationship reasons.  That is clear from the decision of the learned trial judge in his ruling.  At page 142 he makes it clear the basis on which the Crown was seeking to have the “coffee” incident admitted and there were three bases set out in paragraphs 21, 22 and 23, and 22 makes it crystal clear that one of those bases was preparatory to the incident.

I accept that in so far as those three bases are enunciated, they do not cover motive but we say that the evidence being admitted for all those purposes is in - relevantly, for all purposes, no request having been made to limit the use of the evidence under section 136 and if it was admissible for those purposes, it was admissible on which the Crown could rely to adduce evidence of motive as well and we say that, for that reason, the Full Court of the Federal Court was right. 

We also rely on paragraph 106 of the Full Court’s judgment at page 192 of the application book, where the Full Court recorded the concession of the appellant in the Federal Court that, in any event, it would have met the tests under section 97 and 98, and the test in Pfennig because it was accepted that “there was no rational view of that conduct consistent with Conway’s innocence”.

GUMMOW J:   Which page are you referring to, Mr Refshauge?

MR REFSHAUGE:   Page 192 of the application book, paragraph 106.  The second sentence in that paragraph, “As properly conceded, the trial judge was entitled”, et cetera.  We say that if there was any error in not making that finding, nevertheless, the facts were that that precondition to admissibility and therefore the use that was and could properly be made, was there.  Since that is not a matter of a jury direction, it is a matter of the threshold test of admissibility, the fact that it was not enunciated or articulated by the trial judge is no bar to the reliance by the Full Court on that matter ultimately.

So we say that at the end of the day, the court was right in accepting that there was a proper basis for the admissibility of the evidence.  That it was not subject to a request for limitation in any event, and there was no necessity for limitation because of the basis on which it was admitted and therefore it can be used and it can be used completely for the purpose that it was used. 

In relation to the point that my learned friend said about the unreliability of the evidence of Mrs Dillon, we say that that is not correct.  If your Honours go - I think that the point that he makes is in relation to what was said by the Full Court at pages 201 and 202, and what they said there was, at page 201, paragraph 145:

The deceased was plainly confused, and possibly still disoriented, when she spoke to Mrs Dillon.

Therefore, they held that it was not possible for the requirement of 65(2)(c) that it would be highly probable that it be reliable.  That is not a finding that it was unreliable and, in any event, it is a jury question.  It is a matter for submission, it is not a finding by the court that it was ‑ ‑ ‑

GUMMOW J:   Well, they said it fitted within (b), did they not?

MR REFSHAUGE:   They said it fitted within (b).  Fitting within (b), it was therefore admissible and it was a matter for the jury and it was a matter for submission.  We say that it was not such that would infect the admission of the evidence in the way submitted.  In our respectful submission, there is no basis for saying that the Federal Court was incorrect on that basis and, in any event, your Honour, there was plenty of evidence, we say, relying on Mrs Dillon alone to justify the finding in relation to that incident and there is no basis for the complaint that the applicant makes.  Unless I can be of assistance, those are our submissions, if the Court pleases.

GUMMOW J:   Yes, Mr Tilmouth.

MR TILMOUTH:   If the Court pleases, if I could move through Mr Refshauge’s submissions in reverse order.  In relation to Mrs Dillon, of course, not only was there essentially a finding of unreliability, but the Dillon report was 10 hours after the event which, in our submission, is clearly not soon after.

GUMMOW J:   Yes, I did not realise that.

MR TILMOUTH:   And in the context of all the other inadmissible material.  As to the concession I was said to have made at page 192, the key word in that concession, your Honour, was:

the trial judge was entitled to find that if the jury concluded that Conway had put heroin in his wife’s coffee -

Of course, the fact in issue was that very fact and that was very hotly contested.  That drives me back to the submissions that my learned friend made based on the trial judge’s ruling at page 142.  Your Honours, at line 2, his Honour was merely summarising the basis upon which the Crown sought to tender the material.

The first, at line 21, was relationship and, by the way, it was put there that it was consistent with, at line 23, “attempting to discredit the deceased for the purpose of the Family Law proceedings”, and that is part

answer, too, that I have to the concession said to have been made.  We always argued, consistent with Pfennig, that if it had to be admitted there had to be no explanation other than guilt.  We submitted that that was an explanation.  The second, of course, was preparatory to murder, and the third was a rebuttal basis.  But, your Honours, the basis of reception appears later at about line 26.  I will begin at 24:

In my opinion, the evidence is relevant evidence within the meaning of s55(1) of the Evidence Act No. 2, 1995 (Cth) because, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, namely the relationship between the accused Conway and the deceased -

So that is the basis of admission.  Finally, if the Court pleases, on the co‑conspirators corroboration point, with respect, my learned friend and the Full Court confused two matters.  I have not said to your Honours, and we did not put to the Full Court, that some of that allegedly corroborative material was admissible, in general, under Ahern.  We do not suggest that.  But the characterisation of some of that material as corroborative is dictated by quite a different principle.

Corroboration of its nature is already admitted because it is relevant in some way.  But whether it is corroborative or not is determined by other principles and its relationship to the evidence to be strengthened or confirmed.  So there are two separate principles, the second cumulative on the first, not merged with the first.  If my learned friend is right, if the Court pleases, and if the Full Court is right, in every joint criminal or enterprise case, common purpose case or conspiracy case in this country, the principles in Doney no longer apply to charges involving people jointly charged and tried at the same time.  They are swept in those two lines completely out of the window.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 9.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.32 AM:

GUMMOW J:   Gentlemen, we would propose to grant leave but limited to grounds 2.1 and 2.2 at page 259 of the application book.  Just take a minute to consider 2.1 and 2.2 which, as we understand it, reflects the criticism directed to paragraph 243 on page 231 of the Full Court’s reasons.

Well, there will be grant of special leave limited to grounds 2.1 and 2.2 in the draft grounds of appeal.

AT 9.33 AM THE MATTER WAS CONCLUDED