Johnston v The Queen

[2005] HCATrans 90

[2005] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S139 of 2004

B e t w e e n -

MARK ANTHONY JOHNSTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 MARCH 2005, AT 9.43 AM

Copyright in the High Court of Australia

McHUGH J:   In 1996 the applicant was convicted of murder at a joint trial with three co-accused.  In 1997 the applicant signed a notice of abandonment of an appeal against conviction and sentence.  In 2003 the applicant sought leave to withdraw that abandonment so far as the appeal against conviction was concerned, and advanced 14 grounds of proposed appeal.  After hearing argument presented by senior counsel experienced in criminal appeals, the Court of Criminal Appeal of New South Wales delivered a long judgment refusing that leave.  It found error in the trial judge's directions about corroboration in relation to Michael Organ, but found that these errors did not cause the applicant any real prejudice in view of her other directions.  It rejected all the other proposed grounds of appeal advanced by the applicant.  It found that the case against the applicant was overwhelming.

The applicant's special leave application advances three grounds on which the Court of Criminal Appeal is said to have erred. 

The first ground concerned evidence of what Watts, one of the co-accused, said to witnesses. He made statements partly inculpating himself and partly inculpating the applicant. The applicant complains of the trial judge's failure to warn about the inadmissible hearsay character of the evidence, which was said to be subject to a risk of fabrication and to infringe the rule against self-corroboration. This complaint was not made at the trial, and the Court of Criminal Appeal refused leave under rule 4 of the Criminal Appeal Rules. This conclusion is difficult to assail, particularly since a warning under s 165 of the Evidence Act 1995 (NSW) must be specifically requested: s 165(2). The Court of Criminal Appeal pointed out that among this material was an admission of Watts to Myles that he had killed the victim, which could have been powerful evidence in favour of the applicant, and which could have prompted counsel for the applicant at the trial not to seek a warning about the reliability of Myles's evidence.

The applicant's submission also overlooks the fact that so far as the out-of-court statements were cross-examined into evidence when Watts repeated them in the witness box, it lost its hearsay character. 

The trial judge gave a warning that corroboration must be independent of the witness to be corroborated, which would have prevented Watts's out-of-court statements being treated as corroboration of his evidence in court. 

The trial judge also dealt with Myles’s evidence in that part of her summing up concerned with the case against Watts.  This minimised the risk of its being wrongly used against the applicant.

The second ground is that the trial judge failed to direct the jury about the availability of a manslaughter verdict.  Counsel for the applicant at the trial accepted that "practically manslaughter is not available".  Further, any failure to give a manslaughter direction cannot have affected the jury's reasoning in the course of coming to their conclusion that the applicant, and not Watts, stabbed the victim.  Once that conclusion was reached, a conclusion that the applicant did not have the intent necessary for murder was impossible.  To have put manslaughter by provocation to the jury would have prejudiced the applicant's case that he had not carried out the stabbing.  In the circumstances the applicant's attack on the Court of Criminal Appeal's refusal of leave under rule 4 is unlikely to succeed.

The third ground is a point not taken either at the trial or in the Court of Criminal Appeal.  It was that evidence given by the victim's wife that the victim had received threatening calls some months before his death was irrelevant.  In one of the calls the caller said he had been offered $10,000 to murder the victim.  In fact the calls were relevant to support the wife's evidence that the applicant and her husband had been in dispute, and the applicant admitted telling the victim that some persons were offering $10,000 to have him killed. 

The appeal has no prospects of success.

The application is dismissed.

Pursuant to rule 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.

AT 9.43 AM THE MATTER WAS CONCLUDED