Davis v The Queen

[1995] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S125 of 1994

B e t w e e n -

ROBERT DAVIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 12.41 PM

Copyright in the High Court of Australia

MR G.C. CORR:   May it please the Court, I appear in this case for Mrs Davis.  (instructed by B.R. Miles, Aboriginal Legal Service)

MR N.R. COWDERY, QC:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DEANE J:   Mr Corr.

MR CORR:   May it please the Court, I will go to the heart of this application that relates to flight, as I think it is fairly clear that that is the one which is the most serious and most likely to succeed in this matter.

It is submitted, your Honours, that this Court should continue in the line which the majority of this Court followed in Edwards in relation to lies and that there should be a direction given in relation to flight when it is used as a basis for evidence of consciousness of guilt.  That was not done in this case and it is submitted that the decision of Justice Clarke in the Court of Appeal was the one which this Court should follow.

I would refer your Honours to page 56 of the application book at I where he said:

I think some warning of the dangers of acting on this class of evidence should have been given.

Then over on page 57, the paragraph starting at B, where he said:

This I regard as a most unfortunate circumstance and I am clearly of the opinion that in the way that the Crown dealt with this matter, it was incumbent on the trial judge, whether or not a direction was sought, to direct the jury that they should put the issue of flight right out of their minds except perhaps on one very minor issue and that was in explaining why it was that when he was apprehended he was not wearing a watch which he was earlier seen to be wearing.

I would submit, your Honours, that since the majority of this Court decided that a warning should be given in lies, it should be given more so in this case, given the view which was adopted by Justice McHugh in Edwards in relation to the ability of a jury to be able to sum up on lies before a court and to look at the demeanour of the witnesses and so on as the reason why he gave that such warning should not be given in that case.  In this particular case, where the matter is extracurial and the jury did not have that particular

advantage, I would say that is a much greater reason why a warning should be given on flight.

In relation to the other two matters that have been submitted are grounds for a grant of special leave, namely the non-application of the reasoning of this Court in McKinney, that the circumstances that led to this particular trial and the original trial itself occurred before this Court’s decision in McKinney.  However, the question as to whether or not such a direction should be given was in fact raised at the appeal and I submit, your Honours, that where such a decision has been handed down, that the courts of appeal and such like should take into account the reasoning of this Court in such decisions and should not just dismiss them in the manner in which Justice Carruthers did at page 45 of the application book where he said that:

The trial was, of course, conducted and concluded prior to the judgment of the High Court inb McKinney v The Queen (1991) 165 CLR 468. However, there is nothing in the earlier judgments....which required, in the circumstances of this case, a warning along the lines for which the appellant now contends.

That is correct in that the precise nature of the warning was not required.  However, the reasoning which the Court used in coming to its decision in McKinney and Judge should have been applied in this particular case.

The third point, namely the failure of the judge to grant a stay or some gap in order for the alibi witness to be brought, it is submitted, your Honours, is an instance where a procedural step is allowed to interfere with the fairness of a trial and it is submitted that this is contrary to the statement which was made by the Chief Justice Mason and Justice McHugh in Dietrich which was referred to in an earlier case here today, that the right to a fair trial was a central pillar within our justice system.  To allow a procedural requirement to interfere with the ability of a person to bring an alibi witness, particularly when the defendant has on oath given evidence that he was engaged in some other activity, and that that particular alibi witness would be able to corroborate him or may have been able to corroborate him, I think, is sufficient grounds.

I would submit that each of these grounds is sufficient for a grant of special leave and in totality they more than justify it.  Those are my submissions, your Honours.

DEANE J:   Thank you, Mr Corr.  The Court need not trouble you, Mr Cowdery.

The Court considers that an appeal in this case would not give rise to any question of general principle appropriate to attract a grant of special leave.  Accordingly the application for special leave to appeal is refused.

MR CORR:   May it please the Court.

AT 12.50 PM THE MATTER WAS CONCLUDED