Ed v The Queen

[2004] HCATrans 396

[2004] HCATrans 396

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S539 of 2003

B e t w e e n -

ED

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 12.27 PM

Copyright in the High Court of Australia

ED appeared in person.

MR G.E. SMITH, SC:   I appear for the respondent, your Honours.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Can you just come and speak into that microphone at the lectern so that what you say can easily be recorded.  Thank you.  Go ahead.

ED:   In 1957 final appeals from the New South Wales courts lay to the Privy Council in England.  Thus de facto, the laws of England were the laws of New South Wales.  The law of England in 1957 were as espoused in 1927 by Lord Chief Justice Hewart in R v Dora Harris and Lord Roche in 1936 in Seneviratne v The King and cemented by Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde and Lord Hutton – of nowhere, I presume – in R v Mills 1997, where it was held that it was the duty of the prosecution not merely to furnish witness names and addresses, but also to provide copies of statements as well.  Failure to do so constitutes a material irregularity.

In my trial in 1957 the fact of the only eyewitness to this whole affair was kept secret from me.  That was a constable that pulled up a stolen car.  The person driving the car was charged and eventually pleaded guilty.  But I had no notice of him or the police or anything.  Apart from that, I want to attack the New South Wales Court of Criminal Appeal contention that age alone is reason to deny me leave to appeal in this matter.  I draw the Court’s attention to the case of George Kelly which was before the Court of Criminal Appeal in England in June 2003.  Mr Kelly had been hung for a murder.  Subsequently, in the 1990s it was found that he was not guilty because the police had hidden the only eyewitness reports from the court, very similar to this case.

On the other hand, just to prove that time is not of that great a consequence, just last month in New Zealand a chap was charged with crimes from 50-odd years ago.  On one hand we have the court saying, “From 53 years ago we’ll look at it and we’ll exonerate him”, not that it done poor Mr Kelly any good, and in New Zealand now the courts are saying, “Yes, well, you’re not going to get away with this just because it was 50 years ago”.  So I contend that just time alone does not rule me out of ‑ ‑ ‑

GLEESON CJ:   As I understand the reasoning of the Court of Criminal Appeal, the particular significance they attached to the time was that if the grounds of appeal on which you rely were made good, the consequence of that would be an order for a new trial.  They pointed out that in the present case practically everybody relevant to the proceedings except yourself is dead and that a new trial would be impossible.

ED:   Well, that is incorrect because many times in the Court of Criminal Appeal the court does not order a new trial but quashes the conviction, as I point out they did with me in 2001 in a matter that was 18 years old.  That was where Justice Hulme, and with Chief Justice Spigelman and Justice Howie all concurring, said it was pointless to have a new trial but, because they thought…..malfeasance, they just quashed the conviction.  That evidence is not on the ‑ ‑ ‑

HAYNE J:   Anyway, we have that decision.

ED:   Now, this chap that was charged with stealing the car, he wrote a statement and signed a statement against himself and in spite of that, the Crown was calling down from Murwillumbah the constable that had pulled him over for speeding.  Proof of that is on the precedents there.  You see the court documents where they said, “Look, we want a remand because the constable’s got to come from Murwillumbah”.  On the second document you see the constable’s name written on the list of witnesses.  But he was pleading guilty and had written a statement against himself.  I at all times pleaded not guilty and made no admissions whatsoever.  In spite of that, they were not going to call this policeman.

If I had known of the existence of this policeman, at the very least my solicitor should have spoke to him and found out what he had to say.  But the only evidence we have about what he had to say is the policeman’s own statement.  He cannot resile from that.  He has to stick to that.  He cannot add to it in some subsequent inquiry without bringing discredit to himself, but that is kept from me.

I actually appealed in 1957 but I had no knowledge of this policeman whatsoever.  My solicitor told me at the time that some relative of his – and his name was Hortons – was either the Minister for Justice in some previous government or Attorney‑General or something like that.  I cannot remember now from that long ago.  But he led me to believe – he said, “Look, if you pull this appeal in, I guarantee I will get you out on” – what do they call it?  Not a bond, not bail, no – parole.  He said, “I guarantee you’ll be out on parole within six months”, so he said, “Pull it in”. 

If I had known of the existence of this policeman, I most certainly would not have – I would have proceeded to appeal because I know damn well I was not there.  This policeman never said I was there.  In the New South Wales Court of Criminal Appeal Justice James made the specious comment that he did not put it in his report because he was reporting on a speeding matter.  That is just rubbish.  He was not reporting on a speeding matter nine months later.  He had been asked by the Paddington detectives to report on this matter because the defendant, Coote, who was pleading guilty, the police said that there was two other people with him but he could not give their names to the police simply because he was afraid he would get bashed.

So now we have got the situation where we have got a detective with a fellow that is pleading guilty and assisting him in every way saying, “I’d like to help you but I’m afraid of getting bashed”.  That detective must want to find out who these two pair of buggers were, right?  So he must contact the only eyewitness, Constable Waldron, and say, “Give us the report who they were”.  Waldron must have been an honest cop for those days because he was not prepared to tell lies and say, “There were two other people with him but I can’t recognise them”.  He would not say that.  He just reported on the fact that he had pulled this car up for speeding.

Then further, Justice James in the New South Wales Supreme Court makes a specious comment that, “You could have been with him and let out of the car for some other reason just before you got pulled up for speeding”.  But in this Coote statement which was marked for identification at my trial he says, “We got pulled up for speeding”, then, “We proceeded to Coolangatta”, not “I got pulled up for speeding” and then, “I proceeded”.  So taking notes of the plain meaning rule, it has to be that “we” means “we”, more than one, and “I” means “I”.  So when James says that, you know, there was some innocent explanation why this policeman does not make the report, he is obviously wrong.

I put in the statement of this person and it is absolutely disgusting and disgraceful.  He supplied a court, or the Crown supplied a court, a statement that was undated, unsigned and unwitnessed and put that in as evidence and the court accepted it.  That is the last piece of paper on the precedents, you see.

GLEESON CJ:   Yes.

ED:   So had I been aware of this policeman, there would have been a different outcome.  Had that policeman been at the court – I did not say anything.  The trial took less than an hour.  It went in at something after 12 o’clock and was finished at 1 o’clock.  So the jury deliberated during their lunch hour, which I say is disgraceful also because they are supposed to be taking notice of their lunch, not deliberating on this thing.  So when they come back at 2 o’clock, they have had their thing, so they obviously forgot about their lunch and deliberated, or they tried to do it all together. 

But, because the trial was so short, the jury had nothing to think about.  But, had that policeman that pulled this car over been there and had

he been properly cross-examined by my solicitor, they would have had a lot more to think about.  The trial would have taken a lot more than an hour and they would have had to stop and think, “Why didn’t this policeman say that ‘There were two other people in the car but I can’t identify them.  I don’t remember’?”

GLEESON CJ:   Thank you.  Does that cover what you want to say?

ED:   I get another five minutes after, do I not?

GLEESON CJ:   You say everything you want to say now.

ED:   Those English precedents that I spoke about previously have since been approved in R v Leyland Justices; Ex parte Hawthorn [1979] QB, where Lord Widgery – what he had to say about the Crown not giving to the witness everything that was – every statement and the names and addresses of all witnesses.  He said they should be charged with a crime, his Lordship Justice Widgery.  In 1997, so in R v Mills, Lord Hutton concluded:

it is the duty of prosecuting counsel to provide a copy of the statement[s] of the witness[es] to the defence and that the duty is not limited to furnishing only the name[s] and address[es] of the witnesses.

Further, their Lordships went on to observe in the argument made by Lord Hewart, Chief Justice, in R v Harris [1927] 2 KB 587 at page 590 that:

in criminal cases the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury.

Subsequent to that, the Australian cases, including Whitehorn v The Queen 1983 before this Court, have approved that.  Also in Clarkson v Director of Public Prosecutions in Victoria it was approved there and in Richardson v The Queen before the High Court it was approved there. So there is no doubt in the whole wide world the prosecution must tell you about all eyewitnesses, and they did not.

Justice James also made the comment that if I had read the Coote statement, I could have picked up that there was a policeman and by a little bit of judicious digging we could have got that policeman’s name and interviewed him, but that is not the law.  The law says the Crown must give me the name of the policeman and they must give me a copy of his statement, and they never did.  Thank you.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Smith.

On 12 June 1957 the applicant was tried before the late Judge Clegg sitting as a chairman of Court of Sessions and a jury upon a charge of stealing a motor vehicle.  He was convicted and sentenced.  On 8 May 2003 the applicant applied for an extension of time within which to appeal against the conviction and to seek leave to appeal against the sentence.  On 11 September 2003 the Court of Criminal Appeal of New South Wales dismissed the application on the ground that it would not be in the interests of justice to grant an extension of time in which to appeal against the conviction and the court also refused leave to appeal against the sentence.

The substantial ground of appeal against conviction which the applicant sought to argue related to the failure of the prosecuting authorities 50 years ago to provide him or his solicitors with a statement of a person the applicant says would have been a material witness and the failure of the Crown to call that witness to give evidence at the trial of the applicant.

We are of the view that there are insufficient prospects of success of an appeal against the discretionary decision of the Court of Criminal Appeal.  No error of principle has been shown in the reasoning of the Court of Criminal Appeal.  The application is dismissed.

We will adjourn until 2.00 pm.

AT 12.43 PM THE MATTER WAS CONCLUDED