Cox v The Queen [2011] HCATrans 65 - [2011] HCATrans 65

[2011] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M89 of 2009

B e t w e e n -
STEPHEN ALAN COX
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HEYDON J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 11.19 AM

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant. (instructed by the applicant)

MR J.D. McARDLE, QC: I appear with my learned friend, MS S.B. McNICOL, for the respondent, if the Court pleases. (instructed by Director of Public Prosecutions (Vic))

HEYDON J: Yes, thank you. Now, where is Mr Croucher?

MR BOYCE: Your Honour, he is another jurisdiction.

HEYDON J: A more important court, is it?

MR BOYCE: No, your Honour.

HEYDON J: Is he intending to come now or at some stage?

MR BOYCE: No, he is not. He is content for me to present the oral argument, if I may.

HEYDON J: Very well, by all means.

MR BOYCE: Thank you. I apologise for his absence.

HEYDON J: That is all right.

MR BOYCE: Your Honours, the special leave question that is raised in this case in some respects harks back to the very question that occupied the attention of the Court of Appeal in Baskerville’s Case, the important case concerning corroboration. That question is must and in particular how corroborative evidence implicates the accused or connects an accused with the crime in order that such evidence constitutes evidence that is corroborative of an accomplice.

Your Honours will know that the danger recognised by the law that lurks in the evidence of an accomplice is that the accomplice may seek to shift or spread blame so as to minimise that person’s role in offending. So it is that as a matter of practice courts warn juries to be circumspect in accepting the evidence of an accomplice or warn that it will be dangerous to convict on the strength of the evidence of an accomplice unless that evidence is corroborated in the material particular. The corroborative evidence will have the effect, so it is hoped, it is submitted, of ameliorating or assuaging the possibility or the very danger that I alluded to earlier, your Honours, that is, the accomplice falsely placing blame upon another.

The risk inherent in an accomplice’s evidence is – and this case concerned an accomplice, the witness Le, upon whose evidence acceptance needed to be made in order for there to have been a conviction, because the risk is more apparent because the accomplice will by his own admission be bound up in the offending and is able to present, generally speaking, a credible story that may be supported generally or by evidence and objective facts and so much was recognised by Lord Reading in Baskerville’s Case at page 666.

That was why the court in Baskerville moved to rule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cox v The Queen [2011] HCATrans 65

Details

AGLC: Cox v The Queen [2011] HCATrans 65 [2011] HCATrans 65
Case: [2011] HCATrans 65
Decision Date

CaseChat Overview and Summary

In *Cox v The Queen*, the High Court of Australia considered an appeal by the applicant, Cox, against his conviction for murder. The dispute centred on the admissibility of certain evidence during the trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that the applicant had remained silent when questioned by police about the murder. This raised questions concerning the application of the privilege against self-incrimination and the circumstances in which silence can be used as evidence against an accused.

The Court's reasoning focused on the principles established in *Weissensteiner v The Queen* and *Dyers v The Queen*. It held that while an accused's silence in the face of a police accusation can, in certain circumstances, be the subject of comment and inference by the jury, this is permissible only where the accused had a full opportunity to respond and the circumstances were such that a reasonable person would have been expected to deny the accusation. The Court found that the evidence of silence in this case was improperly admitted because the applicant had not been afforded a proper opportunity to respond to the allegations made by the police.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders