Hillier v The Queen

Case [2008] ACTCA 3

STEVEN WAYNE HILLIER v THE QUEEN

[2008] ACTCA 3 ( 6 MARCH 2008)

CRIMINAL LAW — appeal against conviction — appellant convicted of murder — failure by prosecutor to put certain matters to appellant at trial — whether prosecutor complied with Browne v Dunn (1893) 6 R 67 obligations — whether failure to comply amounted to a miscarriage of justice — certain DNA test results not tendered at trial — application to adduce those results as “further evidence” pursuant to Supreme Court Act 1933 (ACT) s 37N — whether DNA results in possession of defence at time of trial — defence expert would have given different evidence if he had had results at trial — whether in circumstances a miscarriage of justice had arisen — whether verdict otherwise unsafe or unsatisfactory

Supreme Court Act 1933 (ACT) s 37N

Browne v Dunn (1893) 6 R 67 applied
Browne v The Queen [2006] ACTCA 15 referred to
CDJ v VAJ (1998) 197 CLR 172 discussed
G v G [1985] 1 WLR 647 referred to
Gallagher v The Queen (1986) 160 CLR 392 discussed
Hillier v The Queen [2005] ACTCA 48 discussed
Lawless v The Queen (1979) 142 CLR 659 cited
Mallard v The Queen (2003) 28 WAR 1 cited
Maric v R (1978) 20 ALR 513 referred to
Mickelberg v The Queen (1989) 167 CLR 259 cited
Mraz v The Queen (1955) 93 CLR 493 discussed
R v Hillier (2007) 228 CLR 618 discussed
Tran v The Queen (2000) 105 FCR 182 cited

Ratten v The Queen (1974) 131 CLR 510 discussed

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 42 of 2004
No. SCC 37 of 2004

Judges:  Madgwick, Weinberg and Dowsett JJ
Court of Appeal of the Australian Capital Territory
Date:           6 March 2008

IN THE SUPREME COURT OF THE  )   No. ACTCA 42 of 2004
  )  No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN WAYNE HILLIER

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Madgwick, Weinberg and Dowsett JJ
Date:  6 March 2008
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be allowed.

  2. The conviction and sentence be set aside. 

  3. There be a new trial. 

IN THE SUPREME COURT OF THE  )   No. ACTCA 42 of 2004
  )  No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN WAYNE HILLIER

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Madgwick, Weinberg and Dowsett JJ
Date:  6 March 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

  1. On 26 November 2005 the appellant, Steven Hillier, was found guilty in the Supreme Court of the Australian Capital Territory of murdering his former de facto wife, Ana Louise Hardwick.  Mr Hillier had lived with Ms Hardwick for about 12 years,…

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AGLC
Hillier v The Queen [2008] ACTCA 3
Case
[2008] ACTCA 3
Decision Date

CaseChat Overview and Summary

The appeal in *Hillier v The Queen* concerned a conviction for murder in the Australian Capital Territory. The appellant sought to challenge his conviction on several grounds, including alleged failures by the prosecutor during the trial and the potential admission of new DNA evidence. The case was heard by Madgwick, Weinberg, and Dowsett JJ of the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the prosecutor's conduct at trial amounted to a breach of the obligations established in *Browne v Dunn* and, if so, whether this failure constituted a miscarriage of justice. Additionally, the court had to determine whether certain DNA test results, not tendered at the original trial, should be admitted as "further evidence" under section 37N of the *Supreme Court Act 1933* (ACT). This involved considering whether the defence possessed these results at the time of trial and whether their absence would have led a defence expert to provide different evidence, thereby potentially causing a miscarriage of justice or rendering the verdict unsafe or unsatisfactory.

The Court of Appeal considered the scope of its power to receive "further evidence" under s 37N of the *Supreme Court Act 1933* (ACT), noting that this power is not strictly confined by common law rules governing "fresh" or "new" evidence. Drawing on principles from cases like *CDJ v VAJ*, the court acknowledged that while ordinarily further evidence should not be admitted if it was available at trial, exceptions exist where an irregularity in proceedings prevented a party from effectively presenting their case. The court also recognised the common law's exceptional power to set aside verdicts in the interests of justice, even with evidence that existed before judgment.

The appeal was allowed, and the conviction and sentence were set aside, with a new trial ordered.

Orders

Orders of the court

1. The appeal be allowed.

2. The conviction and sentence be set aside.

3. There be a new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The position in the Australian Capital Territory differs somewhat from the common law. Section 37N of the Supreme Court Act 1933 (ACT) provides: “Evidence on appeal (1) The Court of Appeal must have regard to the evidence given in the proceeding out of which the appeal arose. (2) The Court of Appeal may draw inferences of fact from that evidence. (3)The Court of Appeal may receive further evidence in any of the following ways: (a) by oral examination before the court or a judge; (b) on affidavit; (c) by audiovisual link or audio link; (d) any other way the court may receive evidence. (4) In this section: audio link––see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions for pt 3). audiovisual link––see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.” The section speaks of “further evidence” rather than “fresh” or “new” evidence. It is similar, in that regard, to s 27 of the Federal Court of Australia Act 1976 (Cth) and s 93A(2) of the Family Law Act 1975 (Cth). In CDJ v VAJ (1998) 197 CLR 172 Gaudron J, in dealing with s 93A(2), observed that there was no reason for thinking that the common law rules which governed the admission of “fresh” evidence applied automatically to confine the discretion to receive “further evidence” conferred by the section. Of course, as a matter of construction, there were constraints upon the Family Court’s power to receive any such further evidence. In her Honour’s terms (at [55]): “The fact that the power to admit further evidence is conferred on a court exercising appellate jurisdiction is of considerable relevance. More particularly, it is relevant that it is a power to be exercised after a hearing conducted in accordance with procedures that allow the parties to put their case and, also, to answer the case made against them. That consideration requires that, ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.” However, her Honour went on to say (at [57]): “Notwithstanding what has been said as to what should ordinarily be the case, different considerations may apply if the question is whether there has been some irregularity in the proceedings such that a party was unable to put his or her case effectively or effectively answer the case made by the other side. And that may be so even if the irregularity was not such as to constitute a denial of procedural fairness.” In a joint judgment McHugh, Gummow and Callinan JJ agreed with Gaudron J that the circumstances in which the Full Court of the Family Court should exercise its discretion to receive further evidence in exercise of the power conferred by s 93A(2) was to be determined as a matter of statutory construction, and not approached as if governed by the common law. In arriving at that conclusion, their Honours added (at [105]): “Moreover, even at common law, the grounds for admitting further evidence of matters occurring before judgment were not inflexible. The common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it. In McCann, Dixon CJ, Fullagar, Kitto and Taylor JJ said: "The grounds upon which the court proceeds in granting the remedy ... have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end.””(Footnote omitted.)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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