Hill v The Queen

[2001] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A40 of 2000

B e t w e e n -

RONALD GORDON HILL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 17 AUGUST 2001 AT 10.15 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   May it please the Court, I appear with my learned friend, MR H.D. BARKLAY, for the applicant.  (instructed by Mangan Ey & Associates Pty Ltd)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS L.C. DUNCAN, for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

MR ABBOTT:   If the Court pleases, this is an application for special leave and an application pursuant to Order 69A rule 3(2).  There are, in our submission, two questions warranting the grant of special leave.  The first is what is the test that should be applied by a court relative to the disqualification of a juror for apprehended bias.  In respect of this, we say that the test that was applied by the Court of Criminal Appeal was not the test laid down by this Court in Johnson, recognising, however, that the test as applied in Johnson was not said to be referrable to jurors, but to judicial officers.

HAYNE J:   Assume for the purposes of debate that there was an error of that kind in the Full Court, what consequence can be said to have followed from the application of that wrong test in this case, even if you applied a “double-might” test?

MR ABBOTT:   Yes, the consequences that follow, in our submission, are that the bar was raised too high and ‑ ‑ ‑

HAYNE J:   But if you applied a “double-might” test?

MR ABBOTT:    ‑ ‑ ‑ and that the reasoning which enabled the court to slide under the bar was based on, we say, on the incorrect reasoning of Justices Duggan and Lander, where they said that they did not think that the association by itself would give rise to an apprehension of bias and we say that what the majority did was to speculate that nothing might happen, whereas, in fact, there was no basis for such speculation.  On the assumption that the court is of the view that the incorrect test was applied by the Court of Criminal Appeal, then it is our submission that the reasons given by Justice Duggan are twofold:  that he said he did not think the association by itself gives rise to an apprehension of bias because he said that was because of the surrounding circumstances; and, secondly, because credibility, so he said, was not in issue.

HAYNE J:   Now, is it clear that the witness was not challenged in cross‑examination and that both sides treated her at trial as being a witness of truth?

MR ABBOTT:   That is the fact.  However, when one talks about credibility not being in issue and the difference that the application of the correct test may have made to the result in this case, whilst it is true that in the traditional sense her credibility was not in issues, in another sense her credibility was in issue because of the inferences which the defence sought to draw from her evidence.  In other words, the defence case was that if you accepted all her evidence and the prosecution did not say that it should not be accepted, then the defence asserted to the jury that the inferences that could be drawn were inferences that would irresistibly lead the jury to a verdict of ‘not guilty’.  Now, against that background, the ‑ ‑ ‑

HAYNE J:   But those were inferences upon the jury accepting at face value what the witness concerned gave in evidence?  Thus, there was no challenge by either side to the jury taking as its starting point in the consideration of this witness’s evidence that what she said should be accepted?

MR ABBOTT:   That is so, but, your Honour, it cannot be assumed that because of the association that had existed between the foreman and that witness, that the jury did accept her evidence at face value and were prepared to draw all the inferences. 

McHUGH J:   The Crown has not challenged the witness’s version of her relationship with the juror?  Her account has been accepted?

MR ABBOTT:   Yes.

McHUGH J:   Yes.

MR ABBOTT:   Logically, taking up your Honour Justice Hayne’s point, one can proceed to some extent on the basis that, as Justice Duggan said, it might be perverse for the foreman and for the jury to have held either her occupation or her association with the foreman against her in assessing her credibility and drawing inferences therefrom.  But if you applied, as we say, the “might” test, then you would be speculating that the jury did do their task, given the information that the foreman had about her and the association he had had with her.

McHUGH J:   But why would you think that a fair-minded member of the public might have a reasonable apprehension that the juror or the jurors generally might not try the applicant impartially?

MR ABBOTT:   Because that fair-minded member of the public could well say to himself or herself, “There is clear evidence here that there was an association between the foreman and chief prosecution witness”.  We do not know how the foreman felt about that association, whether it was a satisfactory or unsatisfactory association.  The nature and extent of his association with the brothel is said in the affidavit to have been two acts of sexual intercourse with the chief witness for the prosecution while she was the madam of the brothel and other visits there.  We do not know what recounting to the other members of the jury, if that happened, the nature and extent of his association might have done with reference to the other jurors.  The ordinary fair-minded person, in my respectful submission, would say, “Well, this is all far too risky” because if the foreman of the jury did tell the other jurors about his association, then, notwithstanding that the prosecution said, “Well, we do not challenge her evidence”, they may have been unwilling to draw the inferences that the defence sought to draw.

McHUGH J:   But why?  I mean, you do not impute unreasonableness or bias to jurors?  You expect that they will perform their duties conscientiously.  You have to have a firm ground for thinking that there is some possibility that they will not or might not discharge their duties impartially.

HAYNE J:   Both sides went to the jury saying, “Take as your starting point”, did they not, “that on the other end of the phone this witness heard her father say these words”, and the Crown put one complexion on those words and what was happening, the defence put another complexion on them.  But was there any challenge by either side to the jury accepting that that was what said?

MR ABBOTT:   No, they went further than that, in so far as the applicant had given one account to the police about where he got the gun from and another account to the jury about the availability of the guns in the house, and it was sought to draw out from the chief witness for the prosecution, his daughter, that guns were available and that his account given to the jury was more likely than not to be correct because of the general way in which guns were available around the house.  So, there were other inferences.  It was not just a case, as your Honour Justice Hayne has suggested, of did the jury believe what she heard or she said she had heard on the end of the phone?  There were other inferences .

McHUGH J:   Take the witness herself:  apparently it did not strike her at the time that her father may not be tried impartially.  It was only later that she asked the solicitor whether or not it might have any bearing on an appeal.  So it certainly did not strike her at the time that there was a risk.

MR ABBOTT:   With respect, your Honour, it is somewhat of a bootstraps argument in that you are saying that, by definition, the fair-minded person who might or might not have come to the ‑ ‑ ‑

McHUGH J:   One would think that she would have her father’s interests very much in mind, as she obviously did after the conviction, that if she had thought there was the slightest chance that there was a problem, she would have communicated it to him or his advisers.  I mean, it is just a factor, but ‑ ‑ ‑

MR ABBOTT:   I could respond to that, perhaps by using this argument, that the juror did not mention it at all. 

McHUGH J:   There are a number of possibilities, of course.  I mean, one is it is unlikely but it is possible that the witness is mistaken in her recollection.  But assuming that she is not, another question is whether the juror recognised her.

MR ABBOTT:   Yes, but that is what I mean.  Everything is in the realm of speculation, and to say that by the application of the “might” test, that this just might not be possible that a reasonable member might not hold such an apprehension, that the juror might not discharge his or her duty ‑ ‑ ‑

McHUGH J:   Yes, but, you have to show some ground for thinking that a juror might not do his or her duty.

MR ABBOTT:   Well, it is obvious the only ground I can show is the association and ‑ ‑ ‑

HAYNE J:   Yes, and the way in which the argument is put appears to be an argument:  demonstrate association, inevitable consequence, with no intervening step at all.  But is that to mischaracterise the argument?

MR ABBOTT:   With respect, yes, not inevitable consequence; might be a consequence.  Association ‑ ‑ ‑

HAYNE J:   Inevitable consequence of disqualification, inevitable consequence, trial miscarries.

MR ABBOTT:   Yes, association of this type is of such a flavour and character, given the occupation and the circumstances in which it happened, that a trial in which the foreman had had this association, this relationship with this witness and the brothel that she was running – and remember that it was not just the two occasions with her, the affidavit said there were up to two other occasions when he had been there ‑ ‑ ‑

McHUGH J:   Are brothels legal in South Australia these days?

MR ABBOTT:   I have no idea.  It is not something I have taken the trouble to find out.  Are they legal?  No, not yet, no, your Honours, no.

McHUGH J:   What about prostitution, it is not an offence per se, is it?

MR ABBOTT:   Professionally or amateurishly, your Honour?  I mean, prostitution for money.  I assume soliciting is an offence.

McHUGH J:   Soliciting may be an offence in this State, I do not know.

MR ABBOTT:   I assume the common law – soliciting - is an offence, but it may not be an offence for one woman to accept money in her house for a sexual act when it is not ‑ ‑ ‑

HAYNE J:   But is the consequence of your argument that had the police photographer who produced at trial the photographs of the scene been a female who had had a similar relationship in similar circumstances to the foreman of the jury, that the trial would miscarry?  What is the difference?

MR ABBOTT:   No, your Honour, because the nature of the chief prosecution witness, not just the fact that she said what she said about the conversations on the phone, but the other evidence that she gave about the other things that were crucial to the applicant’s chance of securing an acquittal on the basis it was an accidental discharge of the gun.  That was not just the conversational aspects of the defence, it was also the availability of the weapon, the way in which weapons had been used or available on the premises and the way in which the deceased had used weapons.

McHUGH J:   Well, now, assuming that the applicant had admitted the conversation and the daughter was not called as a witness, but she was sitting in court and it was obvious to the jurors that she had a relationship with the accused, would the trial be impaired by reason of the former relationship between the juror and the daughter?

MR ABBOTT:   On my argument, possibly, but obviously it is less likely to fulfil the “might” test because in the circumstances your Honour has postulated it, she is not a witness.

McHUGH J:   No, I know, but she is a witness in this case whose evidence is relied on, in effect, by both sides, the Crown for its part and you for your part.

MR ABBOTT:   I understand why your Honour says that is an important consideration, but what I hang our argument on is the fact she was the chief prosecution witness, whether accepted or not accepted, whether her credibility was in issue or not in issue, in our submission, is largely irrelevant.  Of course, the case would be stronger if she was the chief prosecution witness and her evidence was against the applicant and the

relationship existed, I accept that.  But what I say is that for the purpose of the likelihood of surmounting the “might” test, we come within it or it is at least arguable, and that the issues which are raised by this case as an appropriate vehicle, in our submission, are worthy of consideration by this Court and the grant of special leave. 

The questions of whether the “might” test is the test and should be the test with reference to jurors was not canvassed in Johnson, although it was, of course, canvassed in Webb.  In our submission, the DPP accepts that the “might” test is different and a lower test than the “would” test and, in our submission, the Court should use this case as an opportunity to consider the categories of Justice Deane that he had posited in Webb at page 74 about association, and spell out the benefits of trial judges around Australia, the categories of disqualification, something that has not been done in Johnson. 

Finally, we submit that the application of the wrong test has resulted in the possibility of miscarriage of justice and that this Court should intervene and grant leave so that that can be rectified.  I suppose, really, this case raises the issues as to just whether there is any sort of onus.  The application of the “might” test would seem to us to raise a very slight onus on the applicant, whilst the application of the “would” test raises quite a serious and substantial onus on the applicant.  For those reasons, I ask for the grant of special leave.

McHUGH J:   Yes, Mr Abbott.  The Court need not hear you, Ms Abraham.

Arguably the Court of Criminal Appeal erred in the present case in determining whether there was a reasonable apprehension that the jury, or one of its members, might not have discharged its duties fairly and impartially.  The Court of Criminal Appeal applied the test formulated by Justice Brennan in Webb v The Queen where his Honour said that the test was whether a fair‑minded and informed member of the public would entertain a reasonable apprehension that a juror will not discharge his or her duty impartially.

Other cases in this Court, including Johnson v Johnson, indicate that the correct test in a case like the present is whether a fair‑minded and informed member of the public might entertain a reasonable apprehension that the jurors or juror might not discharge their or his or her duty impartially.  But assuming that is the test that the Court of Criminal Appeal should have applied, we do not think that the applicant has sufficient prospects of succeeding in an appeal to warrant a grant of special leave to appeal.

The applicant was convicted of murdering his wife.  One of the witnesses called for the Crown was his daughter, who gave evidence of a telephone conversation that she had with her father before, during and after the killing.  Since the trial the daughter has asserted, and the Crown accepts, that, while working as a prostitute in a brothel of which she was the proprietress, she had sexual intercourse on two occasions with a member of the jury.  The daughter’s evidence was not the subject of challenge at the trial.  The applicant relied on her evidence, as did the Crown. 

Assuming that the juror recognised the daughter as a prostitute, we do not think that any fair‑minded and informed member of the public might entertain a reasonable apprehension that the juror might not have tried the applicant impartially.  Furthermore, we do not think that in the unlikely event that the juror communicated to other members of the jury that the witness was a prostitute or the circumstances in which he came to know her that a fair‑minded and informed member of the public might entertain a reasonable apprehension that the jury as a whole might not have tried the applicant impartially.  Accordingly, the application for special leave to appeal is dismissed.

AT 10.36 AM THE MATTER WAS CONCLUDED