Geary v The Queen

[2004] HCATrans 234

[2004] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 2003

B e t w e e n -

MAXWELL PATRICK GEARY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.12 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   If the Court pleases, I appear with my learned friend, MR A.W. MOYNIHAN, for the applicant.  (instructed by Legal Aid Queensland)

MR D.L. MEREDITH:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Is there an application for an extension of time?  This decision, the subject of this application, was given more than two years ago.

MR GLYNN:   There is, as far as I am aware.  Certainly, there was an affidavit filed, explaining the delay.

GLEESON CJ:   The judgment of the Court of Appeal was given in February 2002 and the application for special leave to appeal was made in March 2003.  So you need an extension of time, I presume.

MR GLYNN:   Your Honour, may I inquire, there was an affidavit filed which was supposed to be part of the original material which was discovered to have been left out of the record book.

GLEESON CJ:   What is your attitude, Mr Meredith, to the extension of time?

MR MEREDITH:   We do not oppose it, your Honour.

GLEESON CJ:   All right.

MR GLYNN:   Your Honours, this is a relatively short point.  The applicant, after the appeal, was convicted of trafficking in schedule 2 drugs.  He had been convicted at trial of trafficking in drugs which included a schedule 1 drug, but as a result of a concession on appeal the Crown accepted that the schedule 1 drug should be deleted and he was re‑sentenced on the basis that the conviction was a conviction for trafficking in schedule 2 drugs.

GLEESON CJ:   Was there a challenge to the form of the indictment?

MR GLYNN:   Not that I am aware of, your Honour, no.

GLEESON CJ:   Your complaint is a complaint of duplicity, is it?

MR GLYNN:   Yes.  Your Honour, I was not going to make any further submissions on that point other than what is already in the record book.  The point I was going to address, your Honours ‑ ‑ ‑

GLEESON CJ:   I can understand why not.  So, what, you are on the Jones v Dunkel point, are you?

MR GLYNN:   I was going to go onto the Jones v Dunkel point, yes.

GLEESON CJ:   All right.  The Court of Appeal applied the proviso.

MR GLYNN:   Yes, that was the point.  The significant thing, perhaps, firstly, is the terms of the direction.

GLEESON CJ:   If you are trying to persuade us there was an error, you are pushing at an open door, because the Court of Appeal held there was an error.

MR GLYNN:   Yes, I accept there was an error.  I am just looking for the passage that sets out what his Honour said to the jury.  It is at paragraph [32], page 100 of the record.  His Honour said to the jury, in respect of the Jones v Dunkel direction:

“In making an evaluation of Geary’s evidence you may also consider whether there were witnesses who might have been called on to support his version although you cannot speculate upon what the witnesses might have said.

Now, I point particularly to the fact that his Honour is talking about the evaluation of Geary’s evidence as a whole.  He has not in any way limited the application of that comment.  In the last paragraph on the page his Honour says:

If you were satisfied about those two matters, (a) there was a witness who could say something useful and that the absence of the person has not been explained, you may infer that the witness’s evidence would not help Geary.  And this, in turn, may lead you to attach less weight than you otherwise would to his evidence.

Again, his Honour has not limited the effect of the direction.  The Court of Appeal accepted, as your Honour has pointed out, that that was not in accordance with decisions of this Court but applied the proviso.  In applying the proviso the court really, effectively, at paragraphs [38] and [39] narrowed the scope of the effect of his Honour’s direction as though it referred only to specific charges.  The court says that:

Any evidence which could have been given by Kennedy and Candow would only have related to the charge of possessing Methylamphetamine.  The jury acquitted the appellant of that charge.  It is therefore difficult to see how the direction in question could have adversely affected the appellant.

If his Honour had limited it to that account, then that might be correct, but his Honour did not.  He left it as going to the credit of Geary generally.

HEYDON J:   The passage you read out from the summing‑up appears on page 101 to be immediately followed, because there are no dots, with a reference to Mrs Geary, Mr Candow and Mr Kennedy, and Mr Candow and Mr Kennedy were on the charge of which he was acquitted.  Mrs Geary was different.  In other words, if you take the context, is it not a sign that he is directing them to deal with those witnesses and not, as it were, their impact on credit – those witnesses on the charges to which they relate as distinct from his credit on all charges?

MR GLYNN:   With respect, my submission is not, your Honour, in that he does not in any sense limit it in that way.  He certainly refers to their absence and what it is that perhaps they could have said, but the problem is that his Honour had said that it impacted upon Geary’s evidence and that you might attach less weight than you otherwise would to his evidence.

Now, if his Honour had said in respect of those matters that would have been unexceptional, but because his Honour left it as a criticism of his evidence generally in that regard then, in my submission, it was inappropriate to apply the proviso. 

The Court of Appeal, in my submission, has simply missed the point.  They have said that because the evidence that could have been called was limited to charges in respect of which he has been acquitted, then it, in effect, did not deprive him of the opportunity of an acquittal and therefore applied the proviso.  It undermines the principle – and this is what this Court has said in respect of the Jones v Dunkel direction – that the onus of proof falls upon the Crown and, in this particular case, when the appellant sought to give evidence, his credibility was potentially seriously undermined by his Honour’s comments. 

The case was not what could be described as a strong case, because the witnesses who gave evidence against him could be described as flawed witnesses.  They were drug addicts and they were people who could be subject to quite serious attacks on credibility.  To have undermined his credibility when he gave evidence against theirs robs him, it is submitted, of a proper opportunity for acquittal and it is not, with respect, limited by virtue of the fact that those were witnesses who were relevant to particular charges because of the general terms in which his Honour gave the direction about affecting his credibility.  That is my submission, thank you.

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

This case turned on the application of settled principles and raises no issue suitable to a grant of special leave.  We are not satisfied that the interests of justice require such a grant and the application is dismissed.

AT 12.22 PM THE MATTER WAS CONCLUDED