Edwards v The Queen

[1993] HCATrans 44

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B34 of 1992

B e t w e e n -

TRAVIS ALLAN EDWARDS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN ACJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MARCH 1993, AT 12.58 PM

Copyright in the High Court of Australia

Edwards 1 5/3/93

MR K.C.FLEMING, QC: If the Court pleases, I appear with MR

P.J. ALCORN, for the applicant. (instructed by

J.A. Hodgins, Director, Legal Aid Office

(Queensland))

MR M.J. BYRNE:  I appear with MR T.A. FULLER for the

respondent. (instructed by D. Field, Solicitor to

the Director of Prosecutions (Queensland))

BRENNAN ACJ: Yes, Mr Fleming.

MR FLEMING:  If the Court pleases, in this matter the Court

of Criminal Appeal was divided on whether lies in

this instance were capable of constituting

corroboration. We will be referring to the

directions given to the jury because they reflect

the attitude of the judge to the whole question and, indeed, we would be submitting reflect the

confusion which now surrounds this whole question

of lies constituting corroboration.

Your Honours, the first ground of appeal is a

general one - the first proposed ground of appeal,

that lies told in court could constitute

corroboration. Now, we are very conscious of the

development of the law in that respect in cases

such as Lucas in England, which has been followed

here in Australia in various States on a number of

occasions. We leave it there because this Court

has never pronounced upon it, and secondly, the

basis upon which that development took place may

well become important in considering under what

circumstances lies told in court could constitute

corroboration in any event.

Your Honours, may I take you to the record.

BRENNAN ACJ: Mr Fleming, we will hear what Mr Byrne has to

say.

MR FLEMING:	Thank you, Your Honours.
MR BYRNE:	May the Court please, the submission on behalf of

the respondent generally is that the issue raised

in ground 1 is clear in Australia and has been

regarded as well settled, provided that the

prerequisite conditions which develop principally

from the case of Reg v Lucas are followed.

The Court of Criminal Appeal in the current

matter were divided simply on a factual basis upon

which the lies in the instant case, whether they

should have been left by the trial judge in the

instant case as lies capable of constituting

corroboration.

Edwards	5/3/93
BRENNAN ACJ:	Mr Byrne, what evidence was there on which it

was possible for a jury to infer that the motive for the lie, assuming it to have been a lie, was

realization of guilt?

MR BYRNE:  To answer that, I could only adopt the analysis

by His Honour Mr Justice Thomas, where he

recognizes the competing inferences, recognizes the
strength of the motive not to, as it is described,

dob co-prisoners, but says also in the

circumstances of the particular case one could

glean from the circumstances that there was a

motive to avoid guilt.

McHUGH J: But there is something circular about the whole

test, is there not? In a trial where the issue is

guilt, you say you can use this evidence of

corroboration if the motive is a realization of

guilt.

MR BYRNE:  I accept that, Your Honour, but that seems to be

the test which has been applied.

BRENNAN ACJ: Is that not a very real problem about the

test?

MR BYRNE: It is one of the factors to be borne in mind. It

is not the only factor, provided -

BRENNAN ACJ:  It is one of the four factors and it is one of

the factors which judges are accustomed to

directing juries upon in this country.

MR BYRNE:  So that the jury have to be satisfied to the

requisite standard, which is beyond reasonable

doubt, that the motive did exist. The jury could

come to that conclusion independently of a finding

of guilt on the ultimate issue, in my submission.

BRENNAN ACJ:  They could scarcely come to any other finding

on the ultimate issue but guilt if they have
satisfied themselves on that element.	Why do they
need corroboration in that event?

MR BYRNE:  The starting point with any sort of

corroboration, in our submission, is that juries

should assess the evidence without the

corroboration. They have to be satisfied of the

worthiness or reliability of the primary evidence, in this case the evidence of the complainant, then

they are directed that it is dangerous, or it can

be dangerous, to accept that in the absence of

corroboration. It is only if they are satisfied at

that initial stage that they turn to look to the

corroboration, if there is any. It is in that

context that they apply the four tests to lies.	So
it is not the primary source of inferring guilt;

Edwards 3 5/3/93

it is simply a secondary source which the juries

look to.

BRENNAN ACJ: It sounds rather like the fifth wheel of a

carriage - utterly unnecessary once you got to the

stage of finding the test satisfied.

MR BYRNE:  It is necessary in the light of the direction to

juries that it is often dangerous to convict on the

uncorroborated evidence of the various categories

of witnesses which fall into that grouping. So if

that direction is to be given, it is necessary also
to examine what is capable of corroboration and

lies have been well accepted as providing such

corroboration.

BRENNAN ACJ:  What is your submission as to the direction

that should be given on this element, that is

motive; balance of probabilities, or beyond

reasonable doubt, or neither?

MR BYRNE:  We would accept beyond reasonable doubt,

Your Honour.

McHUGH J: Why?	It is not the ultimate issue in the case?
MR BYRNE:	It was left, in our submission, to the jury on

that basis here. If the jury found another motive

and were left in any reasonable doubt as the

summing up went, then they could not apply it, so

that it why we adopt here that it is - even at that

standard the appropriate directions were given.

BRENNAN ACJ:	Where does one find that direction?
MR BYRNE:	We would say that direction is to be found at

page 78. I am referring to the transcript before

the Court of Criminal Appeal.

BRENNAN ACJ: Yes.

MR BYRNE:  The paragraph, from about line 15 through to

line 50, particularly the last, say, 10 lines of

that paragraph, Your Honour, where the jury has

directed that:

if you are again left with that reasonable possibility that his motive was one of not

dobbing people in ..... where the Crown have not

established whether the motivation a
realisation of guilt.

It is put in the reverse say perhaps, but there were only two motivations suggested in the instant case, one of guilt and one of dobbing in, and the jury were directed that a reasonable possibility

was the latter, then the Crown had not established

Edwards 4 5/3/93

it. In our submission that is simply a way of

saying that they had to be satisfied beyond

reasonable doubt that that was the motivation.

BRENNAN ACJ: Yes, Mr Byrne. Is there anything further you

wish to put?

MR BYRNE:	Not at this stage, Your Honour, no.
BRENNAN ACJ:	Yes, very well, Mr Byrne, thank you.
There will be a grant of special leave in this

matter.

AT 1.07 PM THE MATTER WAS ADJOURNED SINE DIE

Edwards 5/3/93