Joyce v The Queen

[2001] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S191 of 2000

B e t w e e n -

NORMAN WILLIAM JOYCE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 APRIL 2001, AT 2.54 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))

GAUDRON J:   Yes, Mr Papayanni.

MR PAPAYANNI:   This was a matter that was referred to the Court of Criminal Appeal under 474C(1)(b) and it is important perhaps to look at (2), the whole case was referred to the Court of Criminal Appeal and if there was “a doubt or question as to the convicted person’s guilt”, et cetera.

In this case there are a number of errors and it will be necessary, if the Court considers that leave could be given to - obtain leave to put on a further ground, that the miscarriage of justice on the grounds that the verdict of the jury was unreasonable and cannot be supported on the evidence.  The main ground in relation to this matter was in relation to what the Court of Criminal Appeal referred 32 times to the fact that counsel had not made any objection or asked for any direction.  That is set out on 193 to 194 of the application book.

The point that is made in relation to this - and the question may be as to whether when under rule 78 of the Criminal Appeal Rules it refers to the fact that the appellant is deemed to be an appellant that “has obtained leave of the Court to appeal”, whether that means whether leave has already been granted in respect of any ground that might be advanced or not, but in this case it is understood, of course, the appellant - if counsel at the trial does not object, that would be a matter that would be relevant in relation to admissibility and it may be relevant in relation to other matters.

As your Honour Justice Gaudron said in Bahri’s Case, which was a criminal case, there was no objection in that case, which was a drug case, and your Honour said it is a question really as to whether there is a miscarriage of justice or not.

GAUDRON J:   Yes, but in many cases the fact that objection was not taken or a redirection was not sought may be relevant to whether there was a miscarriage of justice because it may reveal the basis on which the case was conducted.

MR PAPAYANNI:   Yes, but the matter is referred - the whole case is referred to the Court of Criminal Appeal in relation to ‑ ‑ ‑

GAUDRON J:   Yes, but they dealt with it, did they not, Mr Papayanni?

MR PAPAYANNI:   Well, they dealt with it in some ways, but the point was that when you look at the situation in relation to the number of errors that were made, if one takes the confession in the first place, and in relation to that the ground that was advanced was that the judge had not - the whole confession in this case was one of the substantial matters and the judge did not direct ‑ ‑ ‑

GAUDRON J:   Which confession are you talking about?

MR PAPAYANNI:   The confession to the police, not the one to Thomas, which was somewhat minor, but in relation to that confession, there was no direction by the judge that the jury had to be satisfied beyond reasonable doubt as to the making of the confession and also as to the truth.

GAUDRON J:   Well, they only had to be satisfied beyond reasonable doubt as to guilt.

MR PAPAYANNI:   Well, that was a substantial matter but in McKinney and Judge - there are a number of cases that are referred to in this case of Johns at page 13 and 15 - in relation to the fact there that one of the matters that should be put is that there is - on page 13, paragraph 37 in Johns:

His Honour clearly directed the jury that unless the appellant’s contentions were rejected beyond reasonable doubt and unless the jury were satisfied beyond reasonable doubt of the acceptability of the admissions as contained in the unsigned record -

then on page 15, the situation there was in relation to what was quoted at the top of that page:

The trial judge must deal with the opposing versions, however, in such a way that it is made clear to the jury that it is not their task to make that choice, that is to determine which of the versions it is that is the correct one and which it is that is the false one.  Their task is simply to determine whether they are satisfied beyond reasonable doubt of the guilt of the accused - which not uncommonly will mean satisfaction beyond reasonable doubt of the truth of evidence of confessions.

Now, that in this case was a very important matter because there were a number of matters that were advanced in relation to the fact that the confession, in fact, had been obtained by threats and so on.  Also his Honour had directed in relation to some - as to why they should accept the matters, because the police did not have information as to certain other matters.  But when one looks at the - the matter that really was one of the grounds of appeal was the fact that his Honour said, “On the facts it would seem to indicate that either the accused did it or Sally Miles did it or they both did it in concert.”

Now, that was devastating to the accused’s case, which was not that at all.  The accused’s case was that he did not do it.  Now, not only that, that question, that was a question there was an objection taken.  The Court of Criminal Appeal set out at length in relation to the objection that it did not directly - the objection was not directly to the prejudice entailed by that and did not deal with the prejudice at all, and there you have a case where the judge is suggesting to the jury that Sally Miles did it on the facts.

Now, if that is the case, there is a reasonable doubt, because if she did it - but it was never the accused’s case and also one of the matters that his Honour said in relation to that was at page 69, and this was not the accused’s case at all, line 21:

Bear in mind, however, that it will not benefit the accused for you to find that she knows a lot more about it than she says or even, as I think I have already said to you, that she encouraged him to do it or organised him to do it or even assisted him in doing it -

that was not the accused’s case -

If in fact it was the accused who fired the gun, then it does not matter whether he was organised by Sally Miles or whether he was assisted by Sally Miles, encouraged by her or anything else.

So what his Honour was putting to the jury, “The facts here support that either the accused did it or Sally Miles did it, but it doesn’t matter which one did it because then the accused is guilty”, and that destroyed ‑ ‑ ‑

GAUDRON J:   No, that is not what the trial judge said.  “If in fact it was the accused who fired the gun”, is what he said.  You are reading it out of context, are you not?

MR PAPAYANNI:   Yes, but what he said and said it twice - - -

GAUDRON J:   Yes, but do not forget counsel for the accused ‑ ‑ ‑

MR PAPAYANNI:   At page 39 ‑ ‑ ‑

GAUDRON J:   ‑ ‑ ‑ was raising - Mr Black was counsel for the accused?

MR PAPAYANNI:   Yes, that is correct.

GAUDRON J:   If you go back to the paragraph at page 69.  Counsel for the accused was trying to shake her credibility, or at least to raise a doubt as to her credibility, he reminded the jury, by saying that she was somehow involved in this.  She had the main motive and she stood to benefit.  Then his Honour goes on to say, “If in fact it was the accused who fired the gun, if you find that, then those other matters are irrelevant”.

MR PAPAYANNI:   Well, that is right, but what he said here on page 39:

I think those are the main matters that you may find useful to consider when you are considering these questions of fact that you have to consider because that would seem to indicate - it is a matter for you of course - that the two persons were murdered by either the accused or by Sally Miles or by both of them in concert.  Because they were murdered by the rifle which was the accused’s rifle, which was later found in the annex under the cushions.

Now, that was repeated on page 53, the same thing.  His Honour went on to say there, line 11:

two persons were murdered by the rifle, which was the accused’s rifle found in the annex, that would seem to indicate that the two persons were murdered by either the accused or by Sally Miles or by both of them in concert.  Well, I do not wish to alter that.  That is only a suggestion.

Now, if the facts supported that, it was not the question which the jury had to determine.  It is quite clear that that destroyed any submission that might have been made by the accused in that relation.  Also at page 172 where the Court of Criminal Appeal was dealing with this matter, they were referring to the fact there that there was a person Copper Top mentioned.  Now, Copper Top, of course, was a person who had been introduced by the Crown from the McVees and in that quote your Honour will see there that it mentions Copper Top and it says:

it does not really assist him -

that is, the accused -

in answering the charge if you accept or believe or suspect that he might have got some assistance, either from Copper Top or from Sally Miles, or from anyone in carrying out the crime if, in fact, he committed the crime himself.”

Now, on that question, it did not matter whether there was any request for a direction or not in relation to that.  There was a request to take that away from the jury, but the Court of Criminal Appeal did not decide whether that had any prejudice or not.  It was clearly highly prejudicial towards the accused.  Then we come to the question ‑ ‑ ‑

CALLINAN J:   Just explain to me why it is prejudicial to the accused.

MR PAPAYANNI:   Because it is saying, “This is the accused’s case”.  It was not the accused’s case at all.  He is trying to say there that the accused’s case was that he did not actually fire the shot or that he was instigated by Sally Miles to fire the shot.  That was not his case at all.

Now, in relation to - there is a question of the cartridges also and there were a number of errors in relation to this and the Crown’s submission, of course, in relation to this that it was not in the ground of appeal even.  Well, it was in ground 11 of the appeal and it is dealt with in the written submissions which are shown in the application book at pages 108 to 110.  They were the submissions made on behalf of the accused to the Court of Criminal Appeal.  They are dealt with by the Court of Criminal Appeal on page 150 and 181, 182 and 183.

Now, the question of the cartridges was very important because in the record of interview the accused was alleged to have said that he fired one shot from outside the gauze in the window, close to the gauze, and that that was about three feet away from the deceased female.  The second shot he said he fired was he pushed the rifle through the gauze and fired about a foot away from the deceased.  Now, the evidence showed by the scientific people showed that there were two bullet holes in the gauze consistent with a shot having been fired through the gauze itself.  There was no evidence of any mark - or showing that the rifle had been pushed through the gauze.  Now, the question was there was only one cartridge case outside.

GAUDRON J:   Only one cartridge case found.

MR PAPAYANNI:   Only one cartridge case found, yes, and the situation in relation to it was there were two short cartridges and if you fire a short cartridge from this rifle you had to then eject it before you could fire the next cartridge; it did not automatically eject.  A long cartridge automatically ejected.  So, in effect, here you had two shots being fired according to the accused and only one cartridge case.  Now, in relation to that, the police, obviously having been to the scene and having noted the gauze and so on, it was quite open to them to have said, “Well, we know that there are two shots have been fired at the female deceased”.  They asked the accused about the cartridge case in relation to the male deceased.

There was a cartridge case beside the male deceased where he came through the door and where he was allegedly shot.  Now, they did not ask him a question about the cartridge cases in relation to this first - as to why there was no cartridge case and no explanation was ever given in that respect and it was something that was alleged that was made up by the police.  Now, one of the matters there in relation to that was that it was not consistent with what the accused had said and it could have been made up by the police.

Now, one of the vital matters in relation to this case was the question of Thomas.  Now, Thomas gave evidence - he was the prison informer - almost similar to what was in the record of interview and then after the Crown case was finished the accused made a statement and called a couple of witnesses and he called Sharpe, who said that a Detective Sergeant Freeman had spoken to him and admitted to him that he had hit the accused.  That was the sole evidence from the accused.

The Crown then cross‑examined at some length in relation to this matter and produced two letters and they asked Sharpe about certain letters in the first place and he could not remember ever having written any letters to Thomas.  Then they cross‑examined him about these two letters.  Now, what was alleged was a situation that Sally Miles had decided that she would get Thomas to - the police had approached Thomas, and she would have been aware of that.  They had also approached Sharpe to give some evidence as to a confession because they were cell mates at different times.

Now, the question was, if there was such an open and closed record of interview, why would they approach other people in the gaol to obtain a confession.  Sharpe refused, but Thomas agreed.  The reason why he agreed was the subject of these letters that were written.  Now, the letters were produced at the end of the case and the matter that was argued on in the Court of Criminal Appeal was that these letters should have been made available to the accused before Thomas gave evidence at least in order that Thomas could be cross‑examined in relation to this.

Now, if Thomas had been cross‑examined in relation to it, it may have come out - and, in fact, there was evidence that Thomas had spoken to Detective Sergeant Freeman on the phone - there would be evidence then of putting their heads together, Freeman and Thomas, in order to - because the evidence that Thomas gave was very much similar to what was in the record of interview ‑ ‑ ‑

CALLINAN J:   Was any application made to have Thomas recalled for cross‑examination?

MR PAPAYANNI:   No, that is the point, the whole point, that ‑ ‑ ‑

CALLINAN J:   But there could have been an application made to have him recalled.

MR PAPAYANNI:   Yes, but the trouble with that is that it would not have been technically advisable to have him recalled after the accused’s case.

CALLINAN J:   Why not?  It might have been of great advantage to have another go at him in those circumstances.

MR PAPAYANNI:   Well, it might not have been too.  It would only have accentuated the evidence.  But the whole point then - of course, they did not ask for a discharge of the jury either in that respect and that was unsatisfactory and one of the matters that - and, of course, his Honour gave very little attention to Sharpe’s evidence and practically discounted it because of the - and there is a chance of him getting his head together with Freeman and making it up.

There were three verbals in it, which in those days, in 1990 - well, it had not more or less come to a situation where a verbal by the police had to be recorded or had to be some corroboration.  There were three verbals.  One of them was from Sally Miles to the effect that when she got up in the morning he said, “I’ve done it”, but she never thought to ask him what.  She thought it was in relation to an eagle or falcon that they had kept.  Then there was another verbal by McVee and one by the police.

The police when they got him to the police station said to him, “I convinced that you did this crime because there’s blood on your shirt, there’s blood on your joggers and there’s blood on your fingers”.

CALLINAN J:   Was it the applicant who said he had gone out at 8.30 at night to shoot kangaroos?

MR PAPAYANNI:   That is correct,  yes.  He said he was only out for about an hour or so.

CALLINAN J:   With a spotlight?  Did he have a spotlight?

MR PAPAYANNI:   He did not say.

CALLINAN J:   There is no reference to a spotlight, is there?

MR PAPAYANNI:   No, but he had been out - he said that he had been out shooting with this other person, Lasham, a couple of nights before and they could have easily planted a cartridge.  You see the point about the cartridge ‑ ‑ ‑

CALLINAN J:   Could have easily planted a spotlight.

MR PAPAYANNI:   No, not the spotlight.

CALLINAN J:   How could he shoot kangaroos without a spotlight at 8.30 at night?

MR PAPAYANNI:   I do not know, but, in any case, there was no evidence.  There was a reference to a roster.  There was no evidence as to the roster.  The magazine that did not fit - it was not - it was designed for the gun.  There was no evidence that it was in the gun and so on.  There were a number of irrelevancies in relation to the matter, but the main one went to the record of interview and it was on that circumstance that all the observations where, if there had been a miscarriage of justice, which the court should have found, that it did not matter whether the counsel had objected to it or not.  Thank you.

GAUDRON J:   Thank you, Mr Papayanni.  Yes, we need not trouble you, Mr Blackmore.

The applicant’s draft notice of appeal raises two points:  (1) whether on an Attorney‑General’s reference leave is necessary to argue matters that were not the subject of objection or a request for directions at the trial; (2) whether the Court of Criminal Appeal erred in having regard to the fact that objection was not taken and/or that directions were not sought in respect of particular matters.  The first point was not decided by the Court of Criminal Appeal and is, therefore, academic.  So far as concerns the second point, the issues raised by the applicant in the Court of Criminal Appeal were essentially factual issues upon which it was relevant to have regard to the conduct of the trial.

In the special leave application today the applicant seeks to raise a third point, namely, that the verdict is unsafe and unsatisfactory.  Justice Giles, with whom the other members of the Court of Criminal Appeal agreed, was of the opinion that the Crown case was a strong one, even if the confessional material and the in‑gaol confession be set aside.  The applicant has not demonstrated that that is not so.  Accordingly, special leave is refused.

The Court will now adjourn briefly to reconstitute.

AT 3.16 PM THE MATTER WAS CONCLUDED