Friend v The Queen

[2007] HCATrans 489

[2007] HCATrans 489

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S121 of 2007

B e t w e e n -

CATHERINE MARGARET FRIEND

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 3.30 PM

Copyright in the High Court of Australia

MR J.S. STRATTON, SC:   May it please the Court, I appear with my learned friend, MR C.J. SMITH, for the applicant.  (instructed by Walker Smith Solicitors)

MR D.C. FREARSON, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Stratton.

MR STRATTON:   Your Honours, in this matter the applicant was convicted of the murder of her de facto husband in a purely circumstantial case.  The case against her relied very heavily on two pieces of evidence:  that is the evidence of the witness, Mr Dupon, who alleged very late in the piece that he heard the applicant speaking to a male in her backyard at a time after the sound of the shotgun being fired had been heard.  The other piece of critical evidence was evidence suggesting that the ‑ ‑ ‑

GUMMOW J:   Now, you are not in the New South Wales Court of Criminal Appeal.  What is the special leave point here which springs from error of the Court of Criminal Appeal?

MR STRATTON:   In our submission, the special leave point relates to the manner in which the Court of Criminal Appeal dealt with the ground that the conviction of the applicant was unreasonable and cannot be supported having regard to the evidence.  It is submitted that what the Court of Criminal Appeal failed to do was to make an assessment of the reliability of the witness, Mr Dupon, whose evidence on the Court of Criminal Appeal’s analysis was critical.

It is submitted that the Court of Criminal Appeal correctly concluded that the evidence of the cutting of the flyscreen really did not advance the Crown case because that evidence really turned on an assumption that the cutting incident which cut the flyscreen went the depth of the flyscreen and no deeper.  It is submitted that his Honour Justice Sully, who gave the lead judgment in the Court of Criminal Appeal, correctly reasoned that that assumption could not be made; that in all likelihood the cutting instrument which was used to cut the flyscreen would have penetrated on to the other side of the flyscreen and, in that event, the finger tab, which was used by the Crown experts as evidence to suggest that the cutting was done from the inside, would have obstructed the blade on either occasion.

That analysis which, in my submission, is correct made the evidence of Mr Dupon even more critical.  His evidence came to light very late in the piece.  Indeed, the first time that he told anyone in authority that he had heard the applicant whispering or speaking to someone in the courtyard after the sound of the gun was heard was in fact when Mr Dupon was in conference with the Crown Prosecutor when the applicant’s then co‑accused, Mr Grubb, was going to trial and the applicant at that stage was in the position of simply being a Crown witness.

There were, in my submission, a number of reasons why the reliability of the witness, Dupon, needed to be considered carefully by the Court of Criminal Appeal.  Firstly, in the days after the shooting he spoke to three different police officers and made two written statements.  In neither of those statements, although there was an account of what he had seen and heard on the night of the shooting, was there any reference to hearing the applicant talking to a male in the courtyard of her house.

GUMMOW J:   You really are not in the New South Wales Court of Criminal Appeal, Mr Stratton.  What do you say about paragraphs 54 and 55 on pages 216 and 217, which follows a very detailed analysis of the statements by this witness and his evidence.

MR STRATTON:   Could I take your Honour back to the start of that analysis and that starts at page 209 under the heading “Item (f)”, which was the heading, as it were, for the evidence of the witness, Mr Dupon.  You will see – true it is that, on the pages that follow, from pages 209 to 214 his Honour sets out in some detail the prior statements of the witness, Dupon.  The critical thing, of course, from our point of view being that, in those prior statements until the third statement, which was made two years after the event, there is no reference to hearing the applicant talking in the courtyard.

Then at pages 215 to 216 his Honour, in effect, says what the significance of the evidence of Mr Dupon would be if it was accepted by the jury as being reliable evidence.  Then, as your Honour Justice Gummow points out, his Honour only, in my submission, came to consider the question of whether or not it was open to the jury to accept Mr Dupon’s evidence in paragraph 55.  He did so by simply saying:

It was quintessentially a question for the jury at trial to resolve the conflict between the evidence of, on the one hand, Mr. Dupon, and on the other hand of the appellant.  This Court is, in my opinion, in no position to say that the jury was not entitled to accept the evidence of Mr. Dupon and to reject the contradictory evidence of the appellant.

In my submission, what is missing from his Honour’s analysis is an analysis of the real potential areas of unreliability of this evidence:  firstly, the fact that the witness, Dupon, had not told anyone in authority about it for two years, despite the fact of having given three oral and two written accounts on prior occasions of that night; secondly, the fact that the voices that he heard he heard after having been woken from a sleep in the middle of the night and hearing voices in that state; thirdly, in a situation where his own evidence was that he assumed, when he heard the applicant speaking, that she was speaking to her husband.  The only words that he actually heard the applicant say, on his account of things, were the words “Shut up”.  He agreed that that was something that he often heard the applicant say to her dogs.

In my submission, there were clear areas of unreliability which needed to be considered by the Court of Criminal Appeal and they were not.  Your Honours, could I take your Honours to what this Court decided in Morris.  I sent up some authorities which I hope your Honours have.

GUMMOW J:   Yes, we have that.

HEYDON J:   Just on the last submission, your client gave evidence and she accepted it was her voice in the back garden.  So the suggestion that he was mistaken about that is a ludicrous suggestion.

MR STRATTON:   Except this, your Honour, that if he was mistaken about the time he heard these things then the evidence loses all significance.  The evidence is only significant if he was right about hearing the applicant, if he was right about hearing her and a male speaking, and if he was right about hearing the noise shortly after the gun was shot.  But, in fact, in my submission, the fact that the applicant in effect says, “I may well have said ‘shut up’ to the dogs because I said that to the dogs all the time” – in my submission that is another reason for the reliability of the evidence of Mr Dupon being very much a live issue.

GUMMOW J:   What was your client’s account of what happened that night?

MR STRATTON:   Her statement is set out in the judgment of the Court of Criminal Appeal but, in brief, it is this:  that she had a sick child; that the deceased – her de facto husband – had to work the next day; that he went to sleep in the master bedroom ‑ ‑ ‑

GUMMOW J:   She was not there.

MR STRATTON:   Yes.

GUMMOW J:   Not in that room – that she was outside with one of the children.

MR STRATTON:   Correct.  She was sleeping with the baby in the lounge room; actually heard a noise in the night which woke her up.  Her evidence in trial was that the dogs were wakened and that at that time she may well have said “shut up” to the dogs.  In her second statement to the police she said that she went to the toilet and then went back to bed.  The next morning she was awoken by her de facto partner’s mobile phone alarm going off.  She went to the door but it was still locked.  She went round to the window and then saw that her de facto husband was apparently injured.  She then went into the room and, by manipulating the lock, found her de facto having been shot.  She then made a number of phone calls including a triple‑0 call.  That is it in summary.  Could I take your Honours to Morris v The Queen.

GUMMOW J:   What do we get out of Morris?  It is an unsafe and unsatisfactory case, is it not, using that phrase?  It is now rather discredited, I think.

MR STRATTON:   It is but, in my submission, the very error identified by this Court in Morris v The Queen is the error which it is asserted took place in this case.  Could I take your Honours firstly to page 460.  Your Honours will recall that Morris v The Queen was a Queensland case in which the allegation was that Morris, who was, I think it is fair to say, a homeless alcoholic with mental illness issues – had set fire to a colleague.  The evidence against him was evidence of an alleged confession made to a social worker and evidence from one eyewitness who came from a similar background to himself.

At the bottom of page 460, in dealing with the judgment of Queensland Court of Appeal, the Chief Justice referred to, in the lead judgment, a reference to the evidence of the psychologist and psychiatrist as to Morris’ mental State and then to the reliability of the admission he was alleged to have made to the social worker, Mrs Bargo.  The Chief Justice then quotes from the Queensland Court of Criminal Appeal.  Both those matters were essentially questions for the jury.  They depended on an assessment of all the evidence and, in particular, an assessment or evaluation of the credibility of the witnesses who gave it.

GUMMOW J:   That case went off, did it not, for decision on the ground at page 482 – namely, had the Queensland Court of Criminal Appeal made an independent assessment of the evidence.

MR STRATTON:   Yes.  My submission is – and that is the very complaint that we make about the Court of Criminal Appeal – that, in effect, what happened in Morris v The Queen was that this Court said that the Queensland Court of Criminal Appeal had not properly considered the question of the reliability of the witnesses and simply said, “Well, it is a matter for the jury”.  That is the very error which we say is identifiable in the judgment of the Court of Criminal Appeal – in fact very similar wording indeed.

Your Honours, we say that the Court of Criminal Appeal did not do an independent assessment of the reliability of Mr Dupon.  On the facts of this case that was, we say, a critical error because, in our submission, the Court of Criminal Appeal having correctly come to the conclusion that the evidence of the cutting of the flyscreen really did not advance the Crown case, it is submitted that the evidence of Mr Dupon became the critical evidence in the case.

GUMMOW J:   What do you say about paragraph 105 at page 244, which followed a very lengthy account of items of evidence?  It said, “It now becomes necessary for this Court to step back,” et cetera.  That is doing what they were said not to have done in Queensland in Morris, is it not?

MR STRATTON:   The difficulty is, in my submission, that that stepping back, at that stage, having gone through the various assertive strands in the circumstantial case, was that it took into account an assessment that the evidence of Mr Dupon, which basically said we do not need to worry about an assessment of his reliability – that was a matter for the jury.

HEYDON J:   How can an appellate court independently decide for itself which of two witnesses are to be believed when it did not see either of the witnesses?   Morris’ Case cannot be advocating the proposition that appeals always have to be allowed whenever the matters turn on credit.

MR STRATTON:   No.

HEYDON J:   Mr Justice Sully set out all the material.  He seems to have analysed it with care in the sense that he picked up many features of it that he set out in order.  Is your criticism perhaps not just a formal one, that he left a few words out?

MR STRATTON:   No, your Honour.  He certainly did set out at length the fact that there were prior inconsistent statements of the witness, but his Honour did not give reasons why nevertheless, despite those inconsistencies, he concluded that it was open to the jury to accept him, nor did he deal with the other sources of potential unreliability, in particular the fact that this man, having made his observations or hearings, having been woken in the middle of the night and at a time when what he heard from the people next door was of no particular significance, and the availability of another explanation for his having incorrectly assumed that he heard the applicant speaking to a male, when in truth she may well simply have been speaking to her dogs. 

It is significant, in fact, that in the very first statement that she ever made about this matter, the day after the shooting, she referred, at one stage in the evening when her husband was shot, to the fact that at one stage she was telling the dogs to shut up.  That was in the situation when she, of course, was not even aware that, at a later stage – in fact, two years later – that it was going to be alleged that she was talking to a male.  It is an extraordinary coincidence in fact that the only words that Mr Dupon says he could make out of the words uttered by the applicant were those words “shut up” which, on any view, both on the evidence of Mr Dupon and the evidence of the applicant, were words that she could often be heard saying to her dogs.

Your Honours, the primary ground is the problem which I have just been addressing.  The second ground – that is the Shepherd point, is secondary and can be dealt with much more quickly, in my submission to your Honours.  Much of the same ground has to be travelled on.  It is submitted that, on a proper analysis of the case, and in particular accepting the Court of Criminal Appeal’s correct analysis that the evidence of the cut flyscreen was flawed, in my submission very much this case boiled down to the evidence of Mr Dupon. 

It is submitted that his evidence was evidence which called for a Shepherd‑type direction.  In fact, the direction that his Honour gave was, if I could put it this way, a non‑compulsory Shepherd direction.  That is, in effect, his Honour directed the jury that they could apply, as it were, Shepherd‑type reasoning but only if they concluded themselves that the evidence of Mr Dupon was indispensable to the Crown case.  Unless there is a particular matter your Honours wish me to address, those are the submissions.

GUMMOW J:   Thank you, Mr Stratton.  Mr Frearson, is there anything you really want to add beyond what is already encapsulated at page 287 in your written submissions, 3.17?

MR FREARSON:   No, your Honour.

GUMMOW J:   Namely:

read as a whole, that the CCA had formed an independent view about the Crown case.  That view was expressed on a number of occasions throughout the judgment, and it was that, far from the verdict being unreasonable and unsupported, the Crown had a strong circumstantial case.  The strengths and weaknesses of that case, or of the individual items within that case, were properly considered and raise purely factual issues, et cetera ‑ ‑ ‑

MR FREARSON:   No, your Honour.  I do not wish to add to those submissions.

GUMMOW J:   Very well.  Is there anything else you want to say?

MR FREARSON:   No, thank you.

GUMMOW J:   There are insufficient prospects of success on any ground of principle which would be urged were special leave to be granted.  We are not satisfied, moreover, that there has been any miscarriage of justice in this case.  Accordingly, special leave is refused.

AT 3.49 PM THE MATTER WAS CONCLUDED