Hunt v The Queen

[2003] HCATrans 653

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A228 of 2002

B e t w e e n -

WILLIAM EDWARD HUNT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 1.17 PM

Copyright in the High Court of Australia

MR K.V. BORICK, QC:   If the Court pleases, I appear with MR M.R. LOVE for the applicant.  (instructed by C.B. McDonough & Co)

MS G. DAVISON:  If the Court pleases, I appear with MR P.B. SNOPEK for the respondent.  (instructed by Director of Public Prosecutions for the State of South Australia)

KIRBY J:   Yes, Mr Borick.

MR BORICK:   I rely on my written outline of argument before the Court and I do not anticipate at the moment that I would require very much time at all to add to that.  My primary submission is that the application does raise a question of principle and that principle is whether corroboration is only required and afforded if the witness requiring corroboration is otherwise credible.  Secondly, it is my submission that the issue does not depend upon any assessment of the evidence.  Thirdly, it is a matter of general importance in the administration of criminal justice.  Fourthly, the proposition which I am putting forward and the answer which I suggest is supported by very high authority.

KIRBY J:   But it seems to be fundamentally wrong for the judge to usurp the role of the jury in determining what weight, if any, they will put on the evidence of the co-offender.  It just does not seem to be right in terms of the proper delineation between the role of the judge and the constitutional role of the jury.

MR BORICK:   With respect, the statement of principle in Kilbourne and also in Hester recognises that there must be a point where evidence is so incredible that a judge, in requiring to consider the corroboration issue, must decide if it is so incredible that corroboration does not come into play.  That has nothing to do with what the jury eventually say about it or anything else.  It happened in this case ‑ ‑ ‑

HAYNE J:   But what does the trial judge do in such a case:  tell the jury that the witness whose evidence would otherwise require corroboration should be dismissed from their consideration?  What does the trial judge do?

MR BORICK:   Not necessarily, no, he ‑ ‑ ‑

KIRBY J:   It sounds like the action of the Stuart judges in the reign of the Stuart kings.  You turn the clock back a few centuries.

MR BORICK:   With respect, no, what he would do is to leave Weetra - this witness - the jury with a warning that it is dangerous to rely on his evidence.  That is the very least that could happen.  So I do not suggest I need to go so far as to say it is taken away from the jury but I do say there must be cases, and Doney recognises that, that evidence is so incredible you do take it away from the jury.  But I am satisfied with leaving it on the basis, from the point of view of the special leave application, that at the very least in this circumstance the jury should have been left with the warning.  The reality is that his Honour said, after hearing the evidence of the accused, that there was some corroboration and, in effect, the warning disappeared, and so we run into the problem identified by Justice Deane in Pollitt. 

KIRBY J:   But there was the standard warning, was there not, that it would be unsafe to act on the co-offender’s evidence unless it was corroborated?  I realise that you complain about the way it was given and the context and what followed, but the warning was given to the jury?

MR BORICK:   Yes, your Honour, but then removed, and it is my submission that it was the removal of the warning that caused the problem in this case.  If one steps back behind to the general principle that I am relying upon, namely that corroboration did not come into play in this case at all because of the incredible nature of the evidence, then that is all I need, in my submission, for a grant of special leave for that issue to be resolved.

In Doney it was recognised that the evidence of the man Freeman was very poor evidence.  He was an accomplice, he was a thief and he was a liar.  The criminal law is well accustomed to that sort of evidence and the court deals with that with the corroboration warning.  But this evidence is incredible.  Rarely, your Honours, would you find a situation where a witness who has pleaded guilty to murder in the course of his cross‑examination, in effect, says, “Well, I’m not really guilty of murder; I may not have fired the shot”.  When you combine that with the other factors that I have referred to in page 4 of my outline, the fact that he had a combination of cocaine, cannabis and alcohol, that he told lies about his own record - he said he had a criminal record which he did not have - and then this incredible part of his evidence of attempting to withdraw his plea or suggesting that he was not guilty of murder when he had pleaded guilty, makes the evidence incredible and brings into play the question whether or not corroboration did not play a part in this case.  The evidence should have been either withdrawn from the jury or, alternatively, some sort of Presser direction or, alternatively, left with a warning that it would be dangerous to convict on the evidence of this witness.

KIRBY J:   The Court of Criminal Appeal considered your suggestion that such a direction was required to the jury and they said, with far greater knowledge of the detail of the trial than I have, that if that was a correct principle, this was not a case for it to be applied.  That seems to be the fact because one often sees in criminal trials extraordinary evidence, especially of co-offenders or alleged co-offenders, so that really, if that principle that is the special leave point, if there is one, is to be argued, this does not seem to be a very fruitful vehicle for it.

MR BORICK:   In my submission, your Honour, you could not find a more fruitful vehicle because you do not have any other complications of evidence to concern yourself with.  You have the evidence of one witness and one witness only.  Without that witness, the prosecution case fails because he is the one who can provide the link between the accused’s knowledge of what was going to happen at the robbery because the accused obviously was not there when the robbery occurred or the murder occurred.  They needed his evidence and it was extraordinarily unreliable evidence and there is no doubt that Chief Justice King recognised that fact and I think Chief Justice Doyle said it was on the borderline.  He said that some judges might give the warning a bit stronger.

But that still is not my point, your Honours.  My point is that nowhere at first instance, nor in the Court of Criminal Appeal, has the issue raised by the English authorities, that is, corroboration cannot kick in where the evidence is otherwise incredible, has been considered.  There is no other direct authority upon it in this country so far as I am aware, that is, that corroboration is irrelevant at that level.

KIRBY J:   You could not say that the mere fact that a co-accused has been using illegal drugs is an extraordinary or a remarkable phenomenon because that is quite a common feature of co-offenders.

MR BORICK:   Yes, obviously I am not just relying on that one factor, it is the combination.  But you will see here that he himself admitted he had cocaine, cannabis and alcohol, he was stressed.  More importantly, he was not a man used ‑ ‑ ‑

KIRBY J:   That combination would not be unusual either, in cases that I have read in my time on appeal courts.

MR BORICK:   Well, I can assure your Honour that I have seen probably many more than you have.

KIRBY J:   I am sure you have.

MR BORICK:   But not one like this, where the individual has said that he was not accustomed to large quantities of any of these drugs but on this particular day because of his stress, he had taken a very large amount of those three substances and even by itself that makes him a very unreliable

witness.  But I am not arguing that, it is the combination, and I have made my point about his evidence about at the scene ‑ ‑ ‑

KIRBY J:   You have made your point and you have put it in writing and we have read the written submissions and we understand the special leave point you are seeking.  The question is whether this is the case for it.  Is there anything else you wish to say?

MR BORICK:   No, your Honour.

KIRBY J:   Thank you very much, Mr Borick.  The Court does not need your assistance, Ms Davison.

The applicant contends that, at his trial for murder, the trial judge should have directed the jury to dismiss from their consideration evidence given by a man alleged to have been the applicant’s co‑offender.  The trial judge directed the jury that it would be unsafe to act on the alleged co‑offender’s evidence unless it was corroborated.

An appeal against the decision of the Full Court of the Supreme Court of South Australia rejecting the applicant’s appeal against his conviction would enjoy no prospects of success.  Special leave to appeal is therefore refused.

AT 1.28 PM THE MATTER WAS CONCLUDED