Hay v The Queen; Webb v The Queen

[1993] HCATrans 242

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A7 of 1993

B e t w e e n -

VERONICA JANE HAY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide	No A9 of 1993
B e t w e e n -
MICHAEL PETER WEBB

Applicant

Hay	1	25/8/93
BRENNAN J GAUDRON J McHUGH J

and

THE QUEEN

Respondent

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 25 AUGUST 1993, AT 2.55 PM

Copyright in the High Court of Australia

MR s.w. TILMOUTH. QC:  May it please the Court, I appear

with my learned friend, MR N.M. VADASZ, for the

applicant, Webb. (instructed by H. Bersee)

MR P.N. WAYE:  May it please the Court, I appear with my

learned friend, MS K.A. WHIMP, for the applicant,

Hay. (instructed by S.D. Saunders, Director,

Aboriginal Legal Rights Movement Incorporated)

MS A.M. VANSTONE:  May it please the Court, I appear with my

learned friend, MR P.B. SNOPEK, for the respondent

in each case. (instructed by P.J.L. Rofe, QC,

Director of Public Prosecutions, (South Australia))

BRENNAN J:  Mr Tilmouth, I wonder whether it might be

advantageous if you were to come immediately to the
question of the juror's provision of flowers for

the mother of the deceased.

MR TILMOUTH:  Your Honours, we have argued in the

applications that there were a whole series of

matters which either alone or together should have

caused a discharge of the jury.

The question of the flowers was really the

last straw. Your Honours would have got from the papers that there was a change of plea, there was

some coverage in the local paper of the voir dire

and various matters arose during the trial, all of which are dealt with extensively, certainly in the trial judge's lengthy reasons, and to a point in

the Court of Criminal Appeal.

What was argued in the Court of

Criminal Appeal about the juror's actions, if it

Hay 2 25/8/93

pleases the Court, no matter how well intentioned,

and no matter how much sympathy for the deceased's

mother might be intended, a juror is charged with a

very serious task of considering impartially all

the evidence, and it could not conveniently or

comfortably be said that although what the act of

giving the flowers mostly reflected on the one

part, was sympathy towards a third party, as it

were, our argument was the other side of the coin

necessarily meant, there must be some adverse

feeling about the case against the accused. Our

submission was, in the Court of Criminal Appeal,

that by that time it was really too much, either

taken alone or in combination with matters, all the
other preceding matters which were extensive, some

of the publicity was very bad, especially the

Border Watch, that you could no longer have,

effectively, an impartial jury considering this

very serious charge.

The reason why it is included as the third of three matters, at least in Webb's application,

Your Honours, on the issue of discharge generally

in the appeal documents, is an endeavour to
demonstrate that there was at the end of the day, a
very substantial bases indeed for discharge of the

jury and starting the whole trial again at some

convenient time, and maybe even at a different

location.

The appearance of justice could hardly be

objectively maintained when a juror does that kind

of thing, no matter how well-intentioned and

mistaken that juror's actions might have been.

BRENNAN J:  Can you identify for us the factors and the

pages in the appeal books relating to those factors

which ought, in your submission, to have led to a

discharge of the jury.

MR TILMOUTH: Only the matters that have appeared in the

appeal books and were argued at length,
Your Honours.	I must confess I did not come here
armed to argue that at length.	As I have submitted

to Your Honours, our argument was, on discharge,

that the combination of matters led to the fact

that there was not a fair trial.

BRENNAN J:	I am asking you to identify for us what are those elements that appear in the appeal book.
MR TILMOUTH:	I cannot take Your Honours, I apologize, to

pages in the appeal book at this stage.	I am
advised by my learned friend, Mr Waye.	Mr Waye has

put in an extensive written outline, if the Court

pleases, and they are at pages 4 and 5 - this

material appears at pages 4 and 5. Page 5,

Hay 25/8/93

ground 7, is the material part. The argument there

in part was, apart from the overt conduct of the
juror being capable of indicating partiality in the
case or adversely to both accused, that there was

more than a proper basis for discharge of that

juror which would have necessitated discharge of

the whole jury because in these cases there must be

a unanimous verdict.

BRENNAN J: If I look at page 5, I see that there is a

reference to the sending of flowers, and that is

given a reference in the Australian Criminal

Reports. Is it nowhere else to be found in the

appeal book?

MR TILMOUTH: At page 176 in volume 1, Your Honours, this

issue arose. Of course, this happened at the very

germane time during the course of His Honour's

summing up. Mr Snopek, who was prosecuting very

properly, brought the matter to the attention of

the court in open court and pointed out that

Mrs Patrick, who was the deceased's mother,

recognized the juror who gave her some flowers and

said to Mrs Patrick that, at line 25:

because she's not allowed to speak or

communicate.

That is the juror saying those words to the deceased's mother. That matter was raised.

His Honour then ascertained the facts at 177. At

line 36 the juror said:

I plead guilty. I had beautiful daffodils in

my garden. There was a lady I did not know at

the door, I said, "I cannot talk to you, those

are for Mrs Patrick", that is all I said.

And then His Honour sought the assistance of

counsel to resolve that issue. There were

arguments that the jury ought to be discharged, at

178 and those that follow. Line 15, for example,

that the juror should appear to be:

completely impartial -

Mr Waye made the point that it was a unique

experience and indeed, I think it is fair to say in sympathy to the mother, but that it may well have
the experience of all of us here, it was unique.

affected that juror's ability:

to impartially consider the evidence and give

a true verdict.

Lines 26 and 27.

Hay 4 25/8/93

McHUGH J:  Were the flowers taken to the home of

Mrs Patrick?

MR TILMOUTH:  No, I believe this was outside the courtroom,

if the Court pleases, before the case had commenced

again. As you can see at page 176, the court

resumed at 9.48 and this was outside the courtroom,

as I understand it, shortly before the summing up

was to commence.

McHUGH J: But it was said:

it was yesterday morning before the court

started -

and the juror says:

There was a lady I did not know at the door. I said, "Those are for Mrs Patrick"; that is

all I said.

MR TILMOUTH:  Yes. It might have been the day before, if

the Court pleases but, as I understand it, the

flowers are given over by this juror outside the

courtroom, as I understood it, before the case had

commenced. Oh, I beg your pardon, before the case

had commenced on that day. But the point is here

that it is during the course of the vital stage of

the summing up. And both counsel applied -

Mr Vadasz joined Mr Waye at page 179 - made the

point at line 35, 36 and 37 that that juror had

had:

difficulty in keeping an ·impartial mind -

His Honour considers section 56 of the Juries Act,

which is in Mr Way's outline. There was further

argument about it, over some pages, and the juror

in question was asked at page 183 - I think this

was with the juror alone, was it not? Without the

balance of the jury, I stand to be corrected on

that. At page 183, line 30, the juror explained

that: 

I had picked the flowers yesterday morning for

George's wife who is sick.

That is a third party removed, apparently.

I had two bunches of daffodils, one fully out and one that were not out, which I intended

keeping. At the last moment I thought, I'll

take the lot.	As I left the car I saw a grey
headed lady -

and that is, presumably, a car outside the court

room -

Hay	25/8/93 who I had not seen before, outside the door of
the court. It was a purely impulsive action, for which I really sincerely apologise for,
and I thought, oh they won't keep that long in
hospital in air conditioning, I whipped them out the jar and just handed them to her, innocently, and said, 'could you give these to
Mrs Patrick I cannot talk to you', and I do
apologise.

And then His Honour then asked the jury, was it her

own action, or in conjunction with other members of

the jury, page 184:

No one knew, I hadn't even told my husband

last night. The jury have just said, why did I not tell them yesterday and they could have

told you yesterday. I didn't consider it of

importance, I'm afraid I'm an impulsive

·person.

Then there was a retirement. There was further

argument about the matter. Obviously, it caused

some concern to all concerned. There was further

argument about discharge on the following pages.
His Honour had referred to McDonald's case,

page 186, lines 26 and 27, which is in Mr Waye's

written outline and on his list.

There was further discussion over to page 187.

On page 188, Mr Snopek made submissions there. I

think then, if the Court pleases, there was further
discussion about other directions and I think that

the relevant part is in volume 2 now.

His Honour, at 200, which is the first page in

book 2, mentioned that he had ruled:

that the trial should proceed with the

remaining juror and have so ruled.

Lines 14 and 15. This is now in the presence of

the jury, and then directed them, at line 30 on

200: 

I have come to the conclusion that I think it

highly unlikely that other members of the jury

might not, like Mrs Hunt, have felt some
sympathy towards the relatives of the deceased

Patrick and perhaps also his fiancee who gave

evidence, and who, in the course of that
evidence, broke down a little and then
recovered her composure and went on. That is

why I have decided that you should remain,

because you may have overtly expressed your

sympathy by giving those flowers, a sympathy

Hay 6 25/8/93

which other jurors may have felt, but have

not, as it were, taken that step.

It is important, therefore that I should

repeat to you all of what I said yesterday.

You must consider this matter putting any

thought of sympathy for any person to one

side. You must not have sympathy for the

relatives of the deceased or any other person

who has an association with the deceased.

And then the direction goes on in fairly

conventional terms, one which was given earlier.

Now, if the Court pleases, that act of the

juror is like many of the cases, essentially in

England but not that unknown here, where there are

communications between the judge and the jury, or
communications by outside persons and the jury,

which the courts have regularly and conventionally

regarded as fundamental matters which really give

rise to a venire de novo, to use an old expression.

In other words, the maintenance of the regularity

and fairness of the jury process dictated that if

there was a procedural irregularity of this kind,

especially and particularly relating to the

integrity of the jury, that although no

automatically giving rise to a discharge, went very

close to it and, in our submission -

BRENNAN J:  Do you have a reference to any of those English

cases?

MR TILMOUTH:  Not off hand, if the Court pleases. There are

many of them in the Criminal Law Journals.

McHUGH J: Is there not a very strong Victorian case, the

name of which I cannot recollect now, where - I

think it was a case concerning a sexual assault of

a child - one of the jurors said something like,

"You bastard," when the accused was giving

evidence, and the Victorian Full Court said that

that was not sufficient to require that the judge

did automatically discharge the jury?

MR TILMOUTH:  Yes, I recollect the facts but not the case,

may it please Your Honour, and there are others

like it. This was argued, of course, on the spot.

It was argued in the Court of Criminal Appeal, as I

have said, in conjunction with other matters that

really led to a very strong argument for discharge

and, as I have said, all matters taken together as

well as this one taken in isolation. If special
leave were granted on this point, if the Court

pleases, the argument would be that, in effect,

this was such an irregularity that it virtually

amounted to a venire de novo type of situation.

Hay 7 25/8/93

That would be the argument we would seek to

ventilate on that subject-matter if special leave

were granted, if the Court pleases.

May it please Your Honours, I have spent

perhaps a longer time than I intended on that

matter, which is important. May it please the

Court, if I can try and be quicker in my other

points because in our submission these two cases do raise very important questions. Your Honours would

have seen, especially from the judgment of the

Court of Criminal Appeal, that there is a division of judicial opinion as to whether or not a

traditional corroboration warning is apposite in

cases where you are considering the evidence of co-

accused persons.

GAUDRON J: But how can the warning have affected your

client? I can well see how it might have affected

the co-accused, but your client had the benefit of

it.

MR TILMOUTH:  It affected Mr Webb in two ways, may it please

Your Honours, and can I deal with that in this way:

the corroboration direction, which it was a Davies

direction, must be considered in the context of the

earlier direction in relation to an accus.ed

person's temptation to play down his or her own

role. At 173 and 174 of appeal book 1, this topic

first emerged. It arose in the context of a

direction at line 20 of 173 that each case must be

considered separately, and line 27 that one

exception to the rule about admissibility of
evidence in this case, as it affected each accused

differently, was:

the three records of interview with Mr Webb.

That evidence is admissible against Mr Webb

only.

That is to say, it is proof against him only. This

was an unusual case in this respect, Your Honours,

which compounded the difficulty of the

corroboration warning. Webb spoke to the police

and made admissions which essentially implicated

Hay and exculpated him. The reverse was true in

the case of Hay. She exercised her right to

silence but gave evidence implicating my client but

underplaying her role.

So, there His Honour is giving a fairly

standard direction about treating the cases

separately, so far as the record of interview was

concerned. And it was in that context that the

direction in 174 was given, and this is my first

answer to Your Honour Justice Gaudron, "How did it

Hay 25/8/93

affect my client?". It affected it, here, in the

first instance. Line 11:

You will bear in mind that any person in the

position of the accused, and I am speaking

quite generally now -

I am not speaking just about Hay, I am speaking

generally -

any person in the position of the accused will

obviously be under a strong temptation to

consider his or her own interest exclusively
and, if need be, to play down his or her own

part in the matter, if need be, at the expense

of the co-accused. So you must bear in mind

the possibility of that kind of distortion in

a trial of this kind even to the point of

deliberately false evidence.

My answer to Your Honour Justice Gaudron,

therefore, is, although that direction ended up on

to the point of giving deliberately false evidence,

it was not confined solely to evidence given by one

or other of the accused in the case, and it came

hot on the heels of a direction about the record of

interview and the admissions made by Mr Webb. In

other words, that clearly had the capacity to

affect and qualify the evidence in support of his

defence which came from his record of interview.

The second answer, if the Court please, is this. It affected my client simply because the

direction was given. There was no occasion to give

a corroboration or accomplice warning in the case of Webb, because he did not step into the witness

box. So the question must be asked, "Why was one

given with respect to nim at all?" The direction

was plainly given in book 2, page 203, lines 11 and

12.     Perhaps I could begin at line 12:

Without expressing any view about the guilt or

innocence of the two accused -

not just Hay -

I'm not concerned with that question now, I

direct you that each of them should be

regarded, in law, as accomplice for the

purpose of this special warning.

Now, His Honour there directed the jury as a matter

of law, he told them at the very start of his

summing up, at page 195, that they were bound by

his direction of law. And my second answer to

Your Honour Justice Gaudron is that, why give the

Hay 25/8/93

direction if it was not meant to have some meaning?

And it was, I emphasize, a direction of law.

It is true, of course, that the direction then

went on in the examples it gave to relate to Hay's

evidence, but the very damage in giving that

direction of law in those emphatic terms is, in my

submission, the error of law and may have, further,

in conjunction with the earlier, what I submit, is

misdirection at page 174, have been regarded by the

jury as yet another qualification on the record of

interview in so far as it was capable of assisting

Webb's case. My third answer, Your Honours -

BRENNAN J: 

The context which starts at the bottom of 202

makes it clear that this is a direction which is
being given in order to protect Mr Webb against the

evidence which has been adduced in the course of

the trial from Ms Hay.

MR TILMOUTH: 

Yes, in that sense it does, with respect.

BRENNAN J:  Why does it do anything else? I mean, that is

what it says that it is doing. It is not doing

anything else.

MR TILMOUTH:	But it also says that, incidentally, at the top of page 203. But my simple point is: what
were the jury to make of it? They were directed,
"You are bound by my directions of law". The
central issue in the case is whether this man is an
accomplice. That is a question of fact, of course.
The learned trial judge is directing the jury that
as a matter of law my client is to be regarded as
an accomplice.
BRENNAN J:	What he is saying is that, "For the purposes of

this direction that I'm giving you about

corroboration, they're to be regarded as

accomplices."

MR TILMOUTH: That is true, and we can understand and

appreciate that, with respect, as lawyers, but what

were the jury to make of it? It was an unnecessary

direction, in my submission, and one that should

not have been given and could only have had the

capacity to be yet another qualification upon the

jury's consideration of the value of Mr Webb's

admissions and exculpatory statements to the

police. But the third answer, if I could try and

make the answer good, is at page 204. At 204, line

21, His Honour then examined the evidence which

might have corroborated Hay's evidence.	He
directed them at line 23:

First, that Mr Webb was there -

Hay 10 25/8/93

In my submission, there was no question about him

being there; that could not have been

corroborative. I beg your pardon; he admitted some

involvement. The question is: what was the extent

of his involvement -

and second, that he kicked Lance Patrick on a

number of occasions if you accept the forensic

evidence.

If the Court pleases, I accept that that was

capable of being corroborative; there is no problem about that. But the difficulty here is akin to the

difficulty that arose in Pollitt. Your Honours

will recall the case of the prison informer giving

evidence. In a case where a co-accused gives

evidence, as here, implicating the other accused,

corroboration is in the very nature of things

that in Pollitt.

likely to antedate giving that evidence.

In my submission, in a case like this, the

grave difficulty of a direction which is apparently

in favour in this case of Mr Webb is that it may in

fact, as Your Honours ruled in Pollitt in the case

of the prison informer, leave the jury with the

impression that if the evidence is corroborated,

then it can more safely be relied upon.

So my third answer to Your Honour

Justice Gaudron is in short: it became counter- productive. If the Court pleases, in my submission, it affected Webb in those three ways.

As Your Honours know, the Court of Criminal Appeal

said it was not a direction in relation to him.

That is how I would answer, if the Court pleases,

those matters.

If the Court pleases, more than that, in the

case of Webb, of course, perhaps more than in the

case of my client, the question now is - and this

is a special leave point, in my submission - a very

strong one, judges in New South Wales and South

Australia, are left with the Henning direction -

the New South Wales Court of Appeal case cited
extensively by Chief Justice King - the rest of

Australia, except where where affected by a special statute, still has to give a Davies direction.

In my submission, in cases of this class, a

traditional corroboration warning is quite

inappropriate, because where it concerns the

evidence of a co-accused, it has the twin
capacities, on the one hand, of first of all

putting a kind of threshold requirement on an

accused and, secondly, conveying as against the

Hay 25/8/93

co-accused if there is corroboration, it is much

safer evidence. It is completely inappropriate as

a direction, in my submission, and it is of no

surprise that the Canadian Supreme Court in

Vetrovec, which was an accomplice case Your Honours will remember, decided to do away with

corroboration altogether in traditional terms.

The final matter, Your Honours, is this:

there was - and this relates to the application to

cross-examine the co-accused, Hay, by Webb, and supplementary documents. During the course of

cross-examination of - there are 9 pages of

supplementary materials. At pages 8 and 9 of those

materials, Your Honour will see the trial evidence

page number is 2357. I can assure Your Honours

that this exchange between His Honour and counsel

occurred during the cross-examination of Hay.

Mr Vadasz submitted at line 3:

I am entitled to explore that now.

In other words, in the context of the cross- examination of Hay in which he had unquestionably -

no one disputes this - had given evidence against

him, so his right to open up her cross-examination

was guaranteed by statute. There is no discretion

on existing authorities and that is what Mr Vadasz

was endeavouring to do at 8 and 9. Now, the Court

of Criminal Appeal here, ruled that the application

was not made.

Now, in my submission, although in an ideal

world Mr Vadesz should have said in terms, "I can

now do it under section 18", there was no doubt

about the context being the section 18 VI context.

The reason I assert that, Your Honours, is, in the

supplementary materials at page 1 and through to 5,

but particularly on 1 and 5, there is a transcript

of argument at the very early part of the trial	relating to the application to separate the two
matters for severance.

In the course of that application there was a

discussion about the case of Congressi, page 1,

line 5, and at page 5, line 30, and the three lines

which follow - and Congressi, of course, is also

referred to by Justice Debelle in his lengthy

reasons. Congressi was a case which was, in point,

in relation to the circumstances in which a

co-accused gives evidence and forfeits the shield

preventing cross-examination by a co-accused.

What I am putting to Your Honours is then,

that although Mr Vadesz did not finally spit out

Hay 12 25/8/93

the words, "I have got the right under section 18,

you no longer have a discretion", in my submission,

given that it was in context of the

cross-examination of Hay, together with the fact

that the case of Congressi, which was directly in

point, had been argued earlier, meant that there

was no mistake.

The reason why that is a special leave point,

if the Court pleases, is that the right to

cross-examine is an absolute right, one guaranteed

by statute as to which there is no discretion; the

failure to allow that was a fundamental departure

from a very fundamental right given under statute

to the accused person. And that is, in my

submission to the third ground upon which special

leave is justified.

If the Court pleases, those are the three

heads we would submit this is a proper case for the

grant of special leave.

BRENNAN J: Yes, Mr Tilmouth. Mr Waye.

MR WAYE: If the Court pleases, I did file, I hope, an

outline of argument. There are two major matters that the applicant, Hay, urges the Court to grant special leave: first of all it is the

corroboration direction which was given by the
learned trial judge to the jury. There is no doubt

that Hay did give evidence, in the classical sense,

against the co-accused, Webb. He gave the

accomplice direction. That direction, combined

with what he had previously said before he

redirected himself about her evidence being

suspect - and it was 19 hours, as I pointed out in

my outline, before he corrected that upon

application - that had the effect that when the

jury considered her sworn evidence, they were faced

with this difficulty: (a), was she an accomplice

and, as I set out in my outline, the learned trial

judge did err; he did not give the jury the

direction that, "I rule in law that there is
evidence upon which he could be classified an

accomplice, but finally it is for you to say

whether in fact she is".

All the authorities, and I have cited some of

them, say there are two discrete functions: one

for the learned trial judge to decide as a matter

of law whether there is evidence to classify a

co-accused as an accomplice, or any witness as an
accomplice, and then it is for the jury to decide,

as a question of fact, whether that jury finds

there is evidence upon which you could classify the

witness as an accomplice. Then the next thing for

the jury is to identify evidence which may be

Hay 13 25/8/93

corroborative.	The judge did not give that
direction.	The matter was argued before the Court
of Criminal Appeal.	I have referred to that
passage.	The Court of Criminal Appeal acknowledged

the argument but it did not decide upon it. So,

that is the first error.

In the context of this trial, two classify Hay

as an accomplice, following the Victorian and the

Queensland decisions and also the strong words of

our former Chief Justice Dr Bray, in the case of

Rigney which I will refer to, when Hay is in a

joint trial with an accused who did not give

evidence, it had the effect, as I argued in my

outline, of denigrating her evidence, also coupled

with the earlier direction in contradiction of what

this Court said in Robinson.

I could go through the various authorities

shortly referred to by the Chief Justice, and there
are others, but the effect of them is this: that

in England there are some decisions that say that a

co-accused gives evidence against the other accused

can be classified as an accomplice. In latter

years from about 1950, the courts in England have

gone away from that situation. They have said that

only the accomplice direction should be given for

witnesses who are called by the prosecution. The

Victorian decisions are that the full accomplice

warning should be given for a co-accused who gives

evidence against the other. So does Queensland,

which follows and adopts the Victorian decisions.

They are all referred to in the Chief Justice's

reasons in this case.

In South Australia there is a division, as

pointed out by the Chief Justice, a strong decision
of Dr Bray, not followed by the Chief Justice in

giving his reasons in this case but, nevertheless,

they say there should be some warning, if not the

accomplice warning. It is my submission that it is

the court to direct that the law should be that the	unfair, particularly in a case where one accused gives evidence and the other does not, as here, for	trial judge should direct the jury that the
accused's evidence, on oath, is suspect because she
has a motive, or he has a motive, to lie. It does
not give the opportunity of a fair trial for that
accused.

In my submission, it is set out in the

outline, that all that should be said in those

circumstances, is the general direction that is

given in Robinson, that every witness's evidence

and the co-accused is in the same position as any

other witness should be looked at and in

consideration of the truth or otherwise of that

Hay 14 25/8/93

evidence consider what, if any, possible motive

there is to lie, but no more. That is the

threshold of what could be said. Coupled with this

is my argument of special leave as to separate

trials. I have pointed out in page 4 of my outline

a recommendation by the Court of Criminal Appeal in

England that where the evidence of one prisoner

incriminates another prisoner, or the evidence is the central part of the defence: ''then a separate

trial should take placett.

Because in the situation here we have the

unusual events that the applicant Hay made no

statement to the police. Webb gave three long

records of interview but Webb does not give
evidence. She is then placed in the situation that
if she gives evidence and her evidence is that it

implicates Webb, she loses her shield under

section 18 VI. She has previous convictions. The

learned trial judge did allow Webb's counsel to

cross-examine her as to her psychiatric situation -

her illnesses, her medication, the fact that she
had been hospitalized in a mental institute, et

cetera. He did not permit cross-examination as to

her character, but because of the evidence that she

did give, in effect, the learned trial judge, on

Murdoch v Taylor and the other authorities, had no

discretion to refuse an application to cross-

examine her as to character.

I have set out the reasons why there should be

a separate trial, particularly in view of two
recent decisions, one in South Australia where a

separate trial was granted, and I have cited that

authority, R v Collie, Kranz and Lovegrove, and at

Jones where there is a substantial amount of inadmissible

the same time in Victoria the case of &

evidence that the jury will hear, then it is a

reason that the trial judge should consider the

application for separate trials and uphold the

applications. In both cases I have referred to in

page 4 of my outline, CCA of South Australia and

CCA of Victoria, the question was: what degree of

inadmissible evidence that really cannot be cured

by direction, will be heard by a jury in the joint

trial that would give rise to the granting of a

separate trial. In Collie, Kranz & Lovegrove,

because of the inadmissible material - - -

BRENNAN J:	What has that got to do with this case, Mr Waye?
MR WAYE:	I am saying in this case, if Your Honour pleases,

that the fact that some sort of direction will be

given, with a corroboration direction when Hay

gives evidence, plus the other factors that did

arise in this particular trial - and I have set

Hay 15 25/8/93

them out: the inadmissible material against Hay,

the fact that she would be cross-examined under
section 18 VI as to her previous convictions, the

fact she would be cross-examined as to her

psychiatric condition, in effect did not give her

the possibility of having a fair trial.

GAUDRON J: But she could be cross-examined, could she not,

by the prosecution with respect to her medical

condition if she gave evidence?

MR WAYE:  She did not put her character in issue.

GAUDRON J: With respect to her medical condition if she

gave evidence.

MR WAYE:  That is a question of discretion in the trial

judge. It depends on the weight. There was

evidence that she was psychopathic and violent.

That could only, on the judgment of the High Court

and of the Privy Council, be called into account by
a co-accused - that is Lowery and King where the

question was - in Lowery and King which went to the

Privy Council, the Privy Council affirmed this

Court. The question was: who had the sadistic

temperament to commit the injuries and the killing

of the young lady.

BRENNAN J: That is assuming that without the joint trial,

that could not happen; no question could be asked.

MR WAYE:  Not by the prosecution. It is only if it is

highly probative and relevant can it be led and

cross-examined by a co-accused, but that was not

the case here.	Then another important question is:
when should a jury be discharged?	I have set out

the reasons why the jury should have been

discharged here. It is on page 4 of my outline.

What combination of circumstances render a trial

unfair and when the jury should be discharged.

First of all, with any sort of direction of Hay

or another direction that you should take care and giving evidence, whether a corroboration direction	scrutinize her evidence, because she has an axe to
grind, the jury then, with the corroboration
direction, find an impossible situation.

When she is giving evidence to support her own

case, but not against Webb or the co-accused, I do

not give myself the warning. But when other

aspects of evidence - she is giving evidence

against Webb - then I give myself the warning. Now

that is impossible for a jury, probably even for a

lawyer, to be able to compartmentalize the

different aspects of evidence.	Some I do not give
myself the warning, some I do.	And it is important

that this Court does give direction to the various

Hay 16 25/8/93

trial judges of Australia to clear up what is in

Australia, Canada, New Zealand. New Zealand, of

course, on the authorities, still gives a
corroboration direction in the case of a co-accused
giving evidence against another, and that is the

decision of the Court of Criminal Appeal.

BRENNAN J:  What are we talking about here, the discharge of

the jury, or not?

MR WAYE:  Yes, I will come back to that. First of all we

have the three statements of Webb implicating the

accused, describing her actions as violent and

sadistic. Then to disclose to the jury that the
applicant Hay had served a term of imprisonment -

that is at the bottom of page 4.

GAUDRON J:	How did that come about?
MR WAYE:	It was inadvertent and I conceded and my learned

friend, Mr Snopek, had warned the witnesses not to

disclose it. It was just spat out by a witness. I

think it is at page 123 of volume 1, and it is set

out in the rulings of the learned trial judge.

This witness is called, he was being led in-chief

by Mr Snopek, prosecuting, question:

Do you know a person by the name of Veronica

Hay.

Yes, I do.

When did your first meet Veronica before

August 1991.

I wouldn't know exactly what date but it was

when she was doing some time in prison, I used

to go and visit.

Had you known her for about a year or longer.

Well, at that time I had only just met her

through Cindy when she was in goal.

How long had you known her, a year, two years, three years.

No, I've known her to this date about two

years.

The authorities in Australia differ as to whether

or not a jury should be discharged. I adopt what

was recently said by this Court, and I have quoted

the passage in Brennan, on page 5:

Reception of inadmissible evidence of a prior

conviction has been said to offend against one

Hay 17 25/8/93

of the most deeply rooted and jealously

guarded principles of our criminal law and the

wrongful reception or transmission of such

evidence by or to the jury is calculated to

set the prospect of a fair trial ..... if the

trial proceeds and results in a conviction,

for a Court of Criminal Appeal to decide

whether the accused has been deprived of a

fair trial".

Also, quoted a passage from Marie of this Court.

In Victoria - and I have referred to the case

of Knape, and I think that in the additional

material the decision in Knape was included - the

attitude taken by the Supreme Court of Victoria is

this, and I simply read from the headnote:

Evidence of an accused's bad character

which is not relevant to the charge and is not

admitted by some rule of law should be

excluded at his trial as a matter of

fundamental policy. It is only in the most

exceptional cases that a trial should be

allowed to continue after such evidence has

been given.

That is the policy in Victoria.	In South Australia
the policy is virtually otherwise.	And the case

decided by the learned trial judge in this case, in

his reasons, is that that type of evidence can be

cured by direction to the jury. Yet, this Court

has said in Marie and Glennon that it is a

fundamental right that the jury do not know of the

previous convictions unless, in a certain type of

case, that evidence is relevant and admissible.

It was important in this case. Hay's evidence

had been denigrated by the judge in giving a

contrary direction to Robinson. She had had the

pretrial publicity of her violent behaviour

referred to. It is in the transcript.

BRENNAN J:	What pretrial publicity of violent behaviour?
MR WAYE:	Pretrial publicity that she used to fight in

hotels, get drunk, break bottles and this type of

thing.

BRENNAN J: Where do we find it?

MR WAYE: That is at pages 17 and 18 of volume 1. There was

no ground of appeal that there should have been a

discharge of the jury or a change of venue. There

is no complaint about that. It is the bottom of

page 17 in volume 1:

Hay 18 25/8/93

"Murder Case Re-opens with Blame Claim".

Blame, of course, on the applicant, Hay.

Later, the article quotes evidence from witnesses at the committal stating that the applicant had abused hotel customers many

times, had deliberately smashed a glass on a

hotel table ..... previous occasion had smashed

bottles of alcohol behind the bar -

And His Honour went on to dealing with it on the

following page and ruled against the application.

That is one of the minor problems that Hay had to undergo in her trial.

It is my submission the context of this trial,

the disclosure of her previous conviction, was

really fatal to her, particularly as she was

obliged, in effect, to give evidence and oaths as
she had exercised her right to silence in being
questioned.

Then opening up her character - and the special leave point, of course, is the different

view of the Court of Criminal Appeal in Victoria

and South Australia, and to some extent in

New South Wales, as to whether the jury should be

discharged when there had been an inadvertent

disclosure through a prosecution witness of the

fact that an accused person has served a term of

imprisonment. The test is, as this Court has said,

where there had been a wrongful admission of

evidence, the question is whether the Court of

Criminal Appeal can be satisfied that irregularity

has not affected the verdict, and the jury would

certainly have returned the same verdict if the

errors had not occurred. Without being

hypocritical, in my respectful submission, the

Court of Criminal Appeal of South Australia did not apply this test in regard to Hay.

Then, at the bottom of page 5 I have dealt

with the flowers to the juror aspect.

My additional complaint - and I adopt what my

learned friend, Mr Tilmouth said in regard to

that - at the very least, the judge should have

excused that particular juror. He had power to do

so - I have dealt with that on page 6 of my

outline - he did not do so.

The last part of my outline deals with the

evidence upon which it is our submission it is not

appropriate in the application for leave, that the

guilt of Hay was not proved beyond a reasonable

Hay 19 25/8/93

doubt,because there was a hypothesis, consistent

with innocence, that had not been excluded.

So, my major point is this:  His Honour the

trial judge gave a corroboration direction.

Immediately following, he had given the

misdirection, in contrary to Robinson, that her

evidence was suspect, and that passage has been

read by my friend.	And she had a motive to lie.
Then he gives a corroboration direction.	She is

the only person who gave evidence. That he did not

leave it to the jury for them to say, in effect,

whether she was an accomplice. As I said in my

outline, and I adopt respectfully what the learned

authors and Cross have said in regard to this
direction, that the jury may well think that the

judge is taking a view, as here, a direction in law

that she is an accomplice, he failed and he was

wrong in so failing to direct the jury, that it was

then defined whether she in fact was an accomplice.

Whereas I had put it plainly, and I have set it

out, that he should so direct them, but he failed

to do so. And the Court of Criminal Appeal did not

deal with my argument concerning that.

That, in effect, her trial miscarried but it

miscarried on two important considerations. The

combination of events that she should have been

granted a separate trial, whether this Court now

commends what has occurred in South Australia and

Victoria, where there is a considerable amount of inadmissible material, in recommending, for policy reasons, a separate trial, what sort of directions

should be given when a co-accused gives evidence

against the other, if any - and there is enormous

conflict - and what combination of events can lead

to an injustice and requires a discharge of the

jury.

I have set out the combination of events in

this case in my outline. In my submission, there

are important matters of principle. There is

certainly disparity in reasons, on certain

important aspects of law in the States of South

Australia and Queensland, and the United Kingdom,

and there are matters that certainly give rise, in

my submission, to special leave.

BRENNAN J: Thank you, Mr Waye. Ms Vanstone.

MS VANSTONE: If the Court pleases.

BRENNAN J:  We do not need to trouble you on the question of whether the verdict was unsafe and unsatisfactory.

MS VANSTONE:  If the Court pleases. I wonder whether it

would be convenient whether I started with the

Hay 20 25/8/93

ground that concerned the giving of daffodils to

the mother of the deceased?

BRENNAN J: Yes.

MS VANSTONE:	If the Court pleases, the ruling of the learned trial judge is set out in the appeal book,
the first appeal book at page 148.  I wonder
whether I could quickly take the Court through
that? His Honour set out what the court already
knows about the circumstances of the matter being brought to his attention, and mentions at page 149
that one juror had already been discharged through
ill health and, therefore, he was dealing with a jury of 11. His Honour refers to the fact at
page 149 at line 25, that he referred to the
possibility of discharging that particular juror
concerned, and said that he had considered the
matter and, indeed, he did retire to consider the matter for an hour or so - the transcript records
elsewhere - and then I gave his decision.
GAUDRON J:	The real trouble though, is it not, is whether

this could ever be cured by directions. It is a

question of the appearance of bias, such an obvious
appearance of bias that no directions could deal

with the problem.

MS VANSTONE: With respect, Your Honour, His Honour did not

see it that way and - - -

GAUDRON J:  No, but can we come to the present time rather

than how His Honour saw it. Is that not the

difficulty?

MS VANSTONE:  I think, with respect, His Honour took that

view and it is my submission that it was a correct

view because on any account, whether these accused

were guilty or innocent, this was a terrible,

shocking crime attended by quite horrific

circumstances and anyone would feel sympathy for

the mother of the deceased.	It did not necessarily
show any view as to the guilt or innocence of these

accused or either one of them.

McHUGH J: What about appearance? Supposing the juror had

taken the flowers to the home of Mrs Patrick and

left them there without speaking, you would be hard

pressed, would you not, in that situation to say

that that had the appearance of a fair trial.

MS VANSTONE:  I accept that that would be a step further

away, if Your Honour pleases. It was part of

His Honour's reasoning and part of my submission

that this was an impulsive act, the flowers were

not picked to be given to Mrs Patrick, it was a

spur of the moment decision which was obviously a

Hay 21 25/8/93

bad one but which the juror took upon herself when

she saw a person who might convey the flowers to

Mrs Patrick.

BRENNAN J:  We are not involved in the consideration of the

juror's culpability, we are involved in a

consideration of the appearance, particularly to
the accused, of impartiality on the part of the

jury just to determine their guilt or innocence.

MS VANSTONE:	I accept that, of course, Your Honour.
BRENNAN J:	And here you have one of the jurors presenting

to the mother of the deceased who has been in court

throughout the trial a bunch of flowers as a mark

of compassion or sympathy. It is very difficult to

think that such a juror could then retire to the
jury room and dispassionately consider whether

there might be an acquittal.

MS VANSTONE: With respect, in my submission it is relevant

to examine the motives of the juror because by that

examination some light can be thrown on whether she

is biased.

BRENNAN J: But you are looking at the question of whether

she is biased, not the appearance of bias.

MS VANSTONE:  Yes, that is so, Your Honour.

BRENNAN J: Well, must you not look at the appearance of

bias?

MS VANSTONE:  I accept that that is a relevant question.

BRENNAN J: It is the relevant question, is it not?

MS VANSTONE:  In my submission there are two questions:

first, whether there is bias, and then, whether the

accused's perception must be that there is.

BRENNAN J: Let us assume that the first question passes in

favour of the Crown, what do you say about the

second?

MS VANSTONE: Well, that in the circumstances of the trial,

a long trial, a horrible crime, that the fact that

jurors should have sympathy for relatives of the

deceased does not say anything and should not be

seen to say anything about whether they can bring

an impartial mind to bear on the question of guilt

or innocence of these particular accused persons.

McHUGH J:  Is one difficulty that in this case each accused

was blaming the other, so on any view one or other

of these people had killed the son of the woman who

received the flowers.

Hay 22 25/8/93

MS VANSTONE:  And in a sense that assists my argument, with

respect, because of course the first question for the jury in assessing the competing claims of the

two accused is which they were going to act on.

Obviously they would have sympathy for the deceased's family, but that could not help them

when they came to consider the question of the

competing claims of the two accused. It was quite

neutral on that essential issue.

BRENNAN J: But the issue was not one of competing claims,

was it? The issue was whether there was proof

against either or both beyond reasonable doubt.

MS VANSTONE: Quite. I accept that of course, Your Honour,

but of course, in coming to the final decision they

would of course consider the competing claims of

the two accused. Of course they would consider the

Crown case and the extremely strong forensic

evidence - scientific evidence, too.	I cannot step
back from that.

BRENNAN J:	Ms Vanstone, perhaps you need to address the question of what order ought to be made if your
submission on this point does not find favour with
the bench as presently constituted. In other
words, is it a case in which, if the argument does
not find favour, there should be a grant of special leave followed by a full scale appeal, or is there some other procedure which ought to be adopted in the circumstances?

MS VANSTONE: If Your Honour pleases, in my submission, if

the Court were to grant special leave on the

daffodils ground, then it would also be appropriate

to grant special leave on the ground of the

applicant Hay with respect to the accomplice

warning, because I concede that there is a conflict

of authority in Australia in the first instance,

and as between some Australian States and England

and, indeed, Canada, on the matter of whether, when

one co-accused gives evidence against another

co-accused, a full corroboration warning should be
given.

We make no complaint about the decision of our Court of Criminal Appeal. Indeed, in our

submission, the decision is correct but if the Court was going to consider this matter on the other ground, then it would be a proper matter for

this Court to consider alongside it. But if the

Court please, in my submission, that is the only

matter of special leave, leaving aside the flowers

ground.

BRENNAN J: There is the Robinson point as well.

Hay 23 25/8/93

MS VANSTONE: In a sense, that is taken in, and I accept

that that would have to be argued as part of the

ground I have referred to.

BRENNAN J: But it should not be a grant of special leave,

assuming the argument to go against you on the
daffodils ground, should there be a grant of

special leave, limited only by the exclusion of the

unsafe and unsatisfactory ground?

MS VANSTONE:  In my submission, there should not be a grant

with respect to any of the applicant, Webb's,

ground bar the flower grounds. The accompliced

ground, in my submission, cannot give Webb any hope

because the accomplice direction was for his

benefit, and he cannot make any complaint about it

now. In relation to section 18 VI Evidence Act

point, in my submission, that has been properly

dealt with by the Court of Criminal Appeal and no

matter of importance arises there.

GAUDRON J: What about the separate trials issue?

MS VANSTONE: Again, in my submission, the Court of Criminal

Appeal assessed that matter, applying the correct

principles, and found that the decision not to

sever the trials was the correct one. In my
submission, though, there is no question of special

leave there. If the Court pleases.

BRENNAN J:  Thank you. Mr Tilmouth, I think we need to hear

you in reply with regard to Ms Vanstone's

proposition that the daffodils ground is the only

one in which special leave to appeal should be

granted in your case.

MR TILMOUTH:	In my submission, not to grant Webb special leave would be, in effect, to leave him out on a
limb. The grant of special leave should only be
refused if the Court took the view that there is no possible argument that the directions which were
given could not have adversely affected Webb. Now,
I have made my argument on that.  The three answers
I constructed to Your Honour Justice Gaudron's
question, but that is partially interlocked with the Robinson point which equally affects Webb.
Your Honours will recall that that direction was a
general direction, and I read it at the start, and
that plainly affected Webb.

It is true, it has already been developed,

that the argument about corroboration in the end

focused upon Hay's evidence, but the fact is, in my

submission, that the direction was given as a

matter of law, and it may well have influenced the

jury's assessment of Webb's case and, as I put it,

as well, once the jury found there were

Hay 24 25/8/93

corroborational aspects to Hay's evidence, that may

well have enhanced their view about the

incriminating aspects of her evidence against Webb.

And, in my submission, there are at least

those three arguable bases for saying the direction

did effect Webb and, in my submission, it would be
appropriate to grant special leave if those lines

of argument are reasonably open, and I submit to

Your Honours, as strongly as I can, that they are.

As I started in reply, to do otherwise would be to

leave him out on a limb in respect of a summing up

in a trial which essentially is inextricably mixed

up with Hay's case and Hay's grounds of appeal.

The only differentiating aspect is the issue of separate trials, if the Court pleases.

BRENNAN J:  Thank you. Mr Waye, do you have anything to say

with regard to the question of separate trials in

reply, and if you have anything by way of reply in

relation to unsafe and unsatisfactory?

MR WAYE:  I have nothing further to say, other than my

outline on the unsafe and unsatisfactory verdict

and certainly, in regard to separate trials, one of

the important aspects that Hay had to present her

defence has to give evidence; she has made no

explanation to the police. Once she gives

evidence, her evidence implicates Webb, therefore

she loses her shield under section 18 VI. The

authorities say there is no discretion in the trial

judge to prevent her being cross-examined as to her

previous convictions and her conduct and character

generally.

And the other factors set out in my outline

why a separate trial, in these circumstances,

should be granted, coupled with the recent

decisions of the CCA in South Australia and

Victoria, tending more to grant separate trials,

which occured in both those appeals which are

reported, because of the amount of inadmissible

material against one accused being heard by the jury.

And the other point, of course, is the

combination of effects that occurred during the

trial, starting on the unfortunate publicity, the

disclosure of Hay being in prison, what stage

should a trial judge say, "This accused is not

receiving a fair trial and I should discharge the

jury?" If the Court pleases.

BRENNAN J: There will be a grant of special leave in the

case of Webb, limited to the ground that the
learned trial judge ought to have discharged the

jury.

Hay 25 25/8/93

There will be a grant of special leave in the

case of Hay, limited to: one, the ground that the
learned trial judge ought to have discharged the
jury; two, the correctness of directions given by
the learned trial judge as to the assessment of the

evidence of the applicant, including the accomplice

warning.

AT 4.05 PM THE MATTER WAS ADJOURNED SINE DIE

Hay 26 25/8/93