Cronin v State of Western Australia

[2008] HCATrans 161

[2008] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P33 of 2007

B e t w e e n -

DENNIS PATRICK CRONIN

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 APRIL 2008, AT 2.56 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Michael Tudori & Associates)

MR D. DEMPSTER:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J:   Yes, Mr Grace.  This is the cannabis case.

MR GRACE:   This is the cannabis case.

KIRBY J:   Where your client was unfortunate enough to be in the shed when the police came knocking.

MR GRACE:   Yes.  I want to take the Court initially to the learned trial judge’s offending directions in order to put into context how it is said the proviso has been wrongly applied.  Can I take your Honours to page 18 in the application book and to line 20?

KIRBY J:   Yes.

MR GRACE:   The parts of what I am about to take your Honours to are replicated in the reasons of the court below at paragraphs 28, 29 and 55.  But I wanted to take you to the source because there are some wider passages that are relevant.  At line 20 on page 18, in dealing with the evidence given by the prosecution in relation to the records of interview of each of the accused, his Honour said this:

However, their evidence given during the trial in this court falls into a different category.  Evidence given in court by one accused can be used as evidence against the other accused.  So the evidence of Mr Reinke in court can be considered by you when you are considering the charge against Mr Cronin.  Likewise, the evidence of Mr Cronin in court can be considered when you are considering the charge against Mr Reinke.

There is no quarrel with any of that.  At the bottom of that page, at line 51, his Honour says:

The state’s case is that each accused was involved in the cultivation and possession of the cannabis found in the shed on 21 October 2004.  As such it is alleged that each is an accomplice to the other.  Each accused is essentially denying being involved and suggesting the other accused was responsible for the plants and cannabis found in the shed.

It is the experience of the law that the evidence of an accomplice denying involvement and suggesting that another accused is responsible is frequently unreliable.  An accomplice may seek to justify his own conduct and shift the blame to the other accused.  In this case there is an added need for caution.  In addition to each accused facing serious criminal charges, each, if convicted, faces the loss of all assets if he is convicted.

So not only do you have the accomplice direction undermining the evidence, you have motive, contrary to what was said, and self‑interest – contrary to what was said in Robinson’s Case – apparent in that particular paragraph.  At page 20, over the page, at line 30, his Honour says:

It is for you to consider all of these items of evidence against each accused and to determine whether you accept the evidence itself and if you do, whether you regard it as corroborating the evidence of the accomplice.  If you do not find any corroborating evidence, you must regard the warning which I give you; that is, that it’s dangerous to convict an accused on uncorroborated evidence of an accomplice.  You may only do so if, after subjecting the accomplice evidence to close and careful scrutiny, you are satisfied by it and are satisfied to act upon it notwithstanding its source and notwithstanding that it is uncorroborated.

We know that that type of direction contains vices which not only this Court but the Court of Appeal in the instant judgment are regarded as being in error.

KIRBY J:   But if you look at the whole of what the trial judge said, is it not fair to say, as I think the Court of Appeal suggested, that looked at as a whole, the overall message – the jury do not sit there and analyse word by word, as we are taught to do; they just get a message, “These are two people.  The experience of the law is that you have to be very careful with accomplice evidence and you have to take that into account in weighing the evidence of the co-accused”.  Now, is that not the overall message that the trial judge gave the jury?

MR GRACE:   But without the necessary caveat – that it cannot undermine the evidence given by the accomplice in his own case.

KIRBY J:   Yes, but ‑ ‑ ‑

MR GRACE:   That is the caveat that the Court of Appeal said was missing.

KIRBY J:   Yes, they have found that there was error, so the issue is really the proviso – and we have here the fact that your client was found sitting there in the shed and he had a key ring with a padlock, or a key to the padlock that opened the door to the shed.  Is that not correct?

MR GRACE:   Yes.  In relation to each and every item of evidence that the prosecution relied upon, direct and circumstantial, as tending towards the guilt of the applicant, the applicant in his sworn evidence and in the evidence he called viva voce from witnesses, answered each and every one of those points.  The strongest exculpatory evidence was his own sworn evidence, and his responsibility for the crime, in my submission, ought not to have been determined under the influence of an erroneous direction, devaluing his evidence, without it being made clear that it did not apply to evidence in his own case.  It undermined the presumption of innocence in effect because it presumed that the accomplice was deflecting his own guilt on to the co‑accused.

KIRBY J:   It is a very powerful case though; it is a very powerful case.  Your client is caught red-handed in the middle of his cannabis plantation.  I mean, really ‑ ‑ ‑

MR GRACE:   It was a very strong case ‑ ‑ ‑

KIRBY J:   It certainly was.

MR GRACE:   - - - against him, but he was presumed to be innocent, he gave evidence in his defence, which was strong exculpatory evidence.  He called witnesses and, as I have said, he answered the points that were raised by the incriminating material found in his possession, found at his house, and the finding of him himself in the shed at the time that the police arrived.  So how could it be said, given that it must have been necessary for the jury, in order to accept his evidence, to accept the veracity of that evidence and therefore find a doubt – how could it be said with any certainty that the applicant has not lost a chance of acquittal by reason of the erroneous direction?  How could it be said that ‑ ‑ ‑

KIRBY J:   That is pre-Weiss talk, Mr Grace.  That is pre-Weiss.  The question now is not what some theoretical jury would do, it is what the Court of Criminal Appeal, the Court of Appeal, looking at the evidence considers for itself, taking into account the disadvantages that it has.  When you do that in this case then we do not leave commonsense outside; we take it into the shed with us.

MR GRACE:   Yes, we do, your Honour, but could I just briefly take you to Libke?

KIRBY J:   I see you have quoted Justice Callinan and me in that case.  I was very pleased and flattered to see that, but the trouble was we were dissenting.

MR GRACE:   Yes, I know you were, your Honour, but I wanted to take you to what Justice Hayne said in Libke at paragraph [115], and there his Honour said:

It is as well to emphasise, however, that the unanimous decision of this Court in Weiss v R warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court’s task in considering the application of the proviso.  The court expressly discountenanced any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do.  Rather, the court said that “in applying the proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually occurred’”.  Unless, and until, a majority of this court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision.

In that context, could I take you to what the court below said at paragraph 35 on page 57?

KIRBY J:   Yes.

MR GRACE:   Their Honours said:

It is true that, in the course of doing so, he said that the experience of the law was that the evidence of an accomplice “denying involvement and suggesting that another accused is responsible is frequently unreliable”, and also that an accomplice “may seek to justify his own conduct and shift the blame to the other accused”.  However, these comments were made while explaining what the approach of the jury should be when considering the impact of that evidence on the question of guilt or innocence of the other accused.  Also, the jury must have understood its task to be that of deciding whether, having regard for the competing self interested evidence of each of the accused and the extent to which the evidence of each was corroborated by objective evidence, either or both of them had been proved beyond reasonable doubt to be guilty –

Now, insofar as the court is then deciding this case on ‑ ‑ ‑

KIEFEL J:   Are you not rather though confusing what their Honours are discussing there, namely, the effect of the direction with what is discussed

at paragraph 38, namely, their Honours consideration of the overwhelming evidence?

MR GRACE:   Yes, but the step along the path ‑ ‑ ‑

KIEFEL J:   They are two distinct discussions, are they not?

MR GRACE:   Yes, I appreciate that, your Honour, but it is interesting to note that their Honours have proceeded on the basis that the jury was entitled to consider the competing self‑interested evidence of each of the accused in its consideration of the direction that was given.  If his Honour had delved into that area, then of course Robinson’s Case would have been paraded out as being a case which says a judge cannot do that, a judge cannot direct in relation to the jury taking that into account at all.

KIEFEL J:   But his Honour goes on to determine the matter on the basis of the objective evidence.

MR GRACE:   Yes, at paragraph 38 you had the conclusion that the evidence was overwhelming.  At paragraph 39:

the limited effect of the misdirection could not reasonably be supposed to have influenced the result of the trial –

In my submission, where there was a strong case it is even more important that errors of this nature which impact upon an accused who does give evidence are eliminated and, if not eliminated, give rise to a substantial miscarriage of justice, because it could not be said that where you only - and the strongest defence is your own sworn evidence, that if that is erroneously undermined, how could a fair trial, according to law, be had?  I do not know if I can advance the matters any further, your Honours.

KIRBY J:   Mr Dempster, you are going to get a rest on this occasion.  We had enough help from you earlier in the day.

The applicant was convicted with a co‑accused on counts of cultivation of, and possession with intent to sell or supply, a prohibited plant, namely, cannabis.  The applicant was actually apprehended in a police raid and found in a shed built in the vicinity of the plants.  There were many elements in the evidence linking the applicant to the enterprise.

The applicant’s complaint concerns the suggested failure of the trial judge, when giving the jury an accomplice warning in respect of the way in which they might use the evidence of the co‑accused, to tell the jury that the warning related only to their use of the evidence of the co‑accused; it had no application to the use of the applicant’s own evidence given in his defence.

The Court of Appeal concluded that the accomplice warning was unnecessary in the circumstances; but it found that there was an error in the form of the direction.  Nevertheless, it concluded that no miscarriage had occurred requiring a retrial.  The court concluded that, taking the words used by the judge as a whole, they were, on the whole, protective of the applicant.

We would leave open the question whether an accomplice warning was required in the circumstances of this case.  Even if it were, however, there would be no basis for the intervention of this Court.  We agree with the Court of Appeal that no miscarriage of justice occurred in this case.  We are not persuaded by the submissions for the applicant that the Court of Appeal approached the decision that it had to make in a way other than as required by the decision of this Court in Weiss v The Queen (2005) 224 CLR 300 and by the terms of the Criminal Appeals Act 2004 (WA) s 34.

Being of that view, the matter is not one for a grant of special leave.  Accordingly special leave is refused.

The Court will now adjourn to be reconstituted for the remaining two applications.

AT 3.11 PM THE MATTER WAS CONCLUDED