Kingswell v The Queen

[1999] HCATrans 401

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S146 of 1998

B e t w e e n -

RAYMOND JOSEPH KINGSWELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1999, AT 10.51 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   I appear with MS E. FULLERTON, SC, for the applicant, if the Court pleases.  (instructed by Peter Ash & Associates)

MR P.S. HASTINGS, QC:   May it please your Honours, I appear with MR R.F. SUTHERLAND, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J:   Yes, Mr Basten.

MR BASTEN:   Your Honours, I am afraid this is a case involving the operation of the Evidence Acts and the question as to the changes intended to the fabric of the criminal trial in the adversary system by the enactment of those Acts and the principles which govern the exercise of discretion vested in the trial judge, particularly in the operation of section 38.  Section 38 is in our bundle of materials.  It permits certain forms of questioning in circumstances which were previously dealt with by the common law and statute law relating to hostile and unfavourable witnesses.

The question raised is whether, where a Crown witness gives evidence which is not identical to a statement made to a police officer he is asked about and acknowledges that he made the statement and gives a reason for his qualification as to the certainty, the Crown can proceed further and attack the motivation for his qualification, and I might add, in circumstances where the Crown does not seek to suggest that the qualification is without objective justification and in circumstances where the evidence going to identity, ironically, the trial judge is going to give precisely such a qualification in his address to the jury.

HAYNE J:   Let it be assumed that the cross-examination on motive was not permitted.  That may be a very large assumption, but assume it.  What was the significance of that cross-examination in this trial?

MR BASTEN:   The significance was considerable.  Firstly, the issue was one which was described by the Crown as crucial at page ‑ ‑ ‑

HAYNE J:   The issue of identification was, undoubtedly.

MR BASTEN:   Yes, the identification.

HAYNE J:   Why was the cross-examination about the motives of the witness for qualifying the identification critical or important?

MR BASTEN:   May I start by indicating where we end up, your Honour.  The cross-examination takes place over a number of pages from 25 to 30 and at 30, at line 45, the conclusion put to the witness is:

I put it to you that you have deliberately created a doubt about the identification of Mr Kingswell in order to assist your friend Mr Kingswell?

So, that is, at the end of the day - although it was never sought in those terms, and the judge did not indicate any satisfaction in terms that the witness was not willing to tell the truth to assist the court, it is ultimately put to a Crown witness by the Crown and the significance ‑ ‑ ‑

HAYNE J:   And, the jury no doubt were told to tend upon the questions, not upon the way counsel may have framed them.

MR BASTEN:   With respect, your Honour, that, realistically, would not overcome the effect of the question and the answer.  The answer is, of course, is, “I have not created anything.  I do not appreciate the accusation”, but what in substance happens is that the Crown has sought an explanation for the variation, not for the purpose of relying upon that before the jury but for the purpose of belittling the answer and ‑ ‑ ‑

HAYNE J:   Belittling its eyewitness identifier.

MR BASTEN:   Yes.

HAYNE J:   How does that harm the accused’s chance of acquittal to belittle the eyewitness identifier called by the Crown?

MR BASTEN:   To belittle the explanation given by the identifier as to why he was not satisfied beyond reasonable doubt, as it were, without qualification, that he had indeed seen the man.  The consequence is that the jury has invited the evidence of his previous statement now being before them and as a result of the act it is an asserted fact which can be relied upon - the jury is, in effect, invited to say that they will be satisfied beyond reasonable doubt that the accused was where the witness placed him, contrary to his own statement, so the witness has been put in the situation where the Crown obtains the advantage of the jury accepting the accused was there against his own account and against, of course, the accused's statement that he was not there.

When the Crown has to establish this as one of the elements – a crucial element, as they saw it in the case – there is a very real prejudice, we say, in the way that the cross-examination went ahead, and, whilst we accept that some questioning may have been permitted ‑ ‑ ‑

HAYNE J:   But, in particular, do you accept for this limb of the argument, at least, that the prior inconsistent was properly in and properly before the jury.

MR BASTEN:   For this limb of the argument, yes, your Honour.  We say there is a real issue as to whether the qualification which was put meant that the statement was a prior inconsistent statement.  That was the separate limb of the ground which we sought to raise, simply on the basis that that was the trigger, of course, for the cross-questioning in any sense.  We say where the statement merely involved a qualification as to certainty, that was not a sufficient trigger and it certainly was not evidence which was unfavourable to the Crown in what we would say is the statutory sense.  Now, those are separate matters and the one I think your Honour was directing my attention to concerning the prejudice flowing from the cross-examination as to motivation.  But the point of departure, we would say, in relation to the motivation issue is this, if the Crown had some basis in objective fact for thinking that there should be no qualification based upon, for example, the closeness of the door to the place where the witness was when he glanced over his shoulder, the fact that perhaps there were not other people in the shop, although the witness said there were, then those matters could have been put to the witness but there was no real challenge to the justification for the qualification.  It was simply taken straight to this question of motivation.

Might I say, your Honour, that of course as your Honours appreciate, this was only one of three times that the witness was cross-examined by the Crown in the course of the trial, one of which the Court of Criminal Appeal accepted was inappropriate, and the first, we would say, was also inappropriate because the statement which was said to be inconsistent or unfavourable was not in the sense that the statute requires.

GAUDRON J:   Well, all that is required is that the evidence – that the witness is unfavourable.

MR BASTEN:   That the evidence i unfavourable?

GAUDRON J:   Yes.

MR BASTEN:   That is a ‑ ‑ ‑

HAYNE J:   Or that the witness has made a prior inconsistent.

MR BASTEN:   Indeed.  There is that change, though, in relation to the first limb.  We no longer describe a witness as unfavourable but the evidence.

GAUDRON J:   Yes.

MR BASTEN:   But, unless there is some suggestion that the witness is not trying to tell the truth or doing his best to tell the truth it would be a large move from the way in which trials have previously been conducted to allow the Crown to attack the motivation in such a serious way as occurred here, and, in circumstances where the section says that the witness may be questioned “about” either the “evidence” or the “statement” so that in our submission one asks once that questioning has occurred and the witness has freely acknowledged not only that he made a statement but that what was recorded was a correct record of what he had said to the police officer, where that provision permits, a continuation of cross-examination in the way that I have indicated.  Perhaps I need not take your Honours to the passages in the application book where the cross-examination takes place.

HAYNE J:   Separate questions may arise, may they not, depending on whether the trial judge was acting under 1(a) or 1(c)?

MR BASTEN:   Yes, indeed, your Honour.

HAYNE J:   And, a different ambit of cross-examination might, on one view of the Act, be permitted.

MR BASTEN:   Yes.

HAYNE J:   If proof is given of prior inconsistent, what do you say is the ambit of cross-examination that is then permitted?

MR BASTEN:   We say that the ambit of cross-examination permitted by38(1)(c) is as to whether the witness has made such a statement, which we acknowledge includes the content of the statement.

HAYNE J:   But not the motives.

MR BASTEN:   But not the motives for the change in evidence.

GAUDRON J:   Unless there was subsequent grant of leave under subsection (3).

MR BASTEN:   That is so.

GAUDRON J:   In this case there was no subsection ‑ ‑ ‑

MR BASTEN:   There was not and the Crown case is that there need not have been.  That is really at the heart of the issue, with respect.  We say there should have been a grant of leave and that that is the matter on which

this trial miscarried because the Crown sought to go the extra step and that, I think, is the critical point of the difference between the parties on this matter.  Your Honour, those are my submissions.

GAUDRON J:   Yes.  Do you wish to say anything further, though, about miscarriage of justice?

MR BASTEN:   Yes.  We say that in the circumstances if what happened in relation to this matter was inappropriate it involved a miscarriage for two reasons, one because of the cruciality of the evidence identified and accepted by the Crown in its request at page 19 and in the circumstances where the Court of Criminal Appeal had accepted that the third application should not have been granted and then had to consider whether or not that, of itself, gave rise to a miscarriage.  It did not, in the circumstances.  We do not challenge the correctness of that finding but we do say that if the two were placed together there would be a substantial element of miscarriage resulting from the combined effect of the two cross-examinations to similar effect.  If your Honour pleases.

GAUDRON J:   Yes, thank you, Mr Basten.  Yes, Mr Hastings.

MR HASTINGS:   May it please your Honours.  We rely on the word “about” in the section as justification for the breadth of the questioning which took place.

GAUDRON J:   That has to be read in the context of subsection (3), does it not?

MR HASTINGS:   Well, we would see subsection (3) as operating in circumstances where the only issue in respect of which inconsistency arose was a credit issue.

HAYNE J:   Are you saying “about” in its operation in relation to 38(1)(c) would permit this?

MR HASTINGS:   Yes.

HAYNE J:   “About whether the witness has made” would permit investigation of motive, do you say?

MR HASTINGS:   Yes, your Honour, otherwise it seems to leave the position in a completely unsatisfactory point of view from the point of view of the jury because the jury, on the one hand here, the evidence given as to version 1, and then pursuant to leave here, of the earlier version, call it version 2, and then are left to speculate as to the reason for there being two different versions coming from the one witness.

HAYNE J:   It may also demonstrate that the Crown should be rather sparing in making these applications and should attend closely to the words of the section.

MR HASTINGS:   Yes, your Honour, I accept that, but in a proper case where there is a true inconsistency it seemed to be unsatisfactory, from a jury’s point of view, simply to be told that there are two versions from the one witness of the same set of facts without having any assistance as to why those two versions exist and in that situation it seems to leave a rather dangerous position where the jury could be asked to speculate as to the circumstances in which the witness has offered two different versions, and, presumably, counsel would address the jury on the basis for there being two versions in existence and there would be no factual premise upon which to mount those submissions.

HAYNE J:   Well, in this case, where the Crown called this man as an identifying witness, as an important link, if not crucial link in its case, the Crown may be left in the uncomfortable position where the witness has given two differing versions and the jury is unable to determine, on the evidence, whether the truth lies with the inevitable consequence of acquittal.

MR HASTINGS:   That is one possibility.  The other is, given the facts that came out as to the association between the witness and the accused, given that they were childhood friends and so forth, they may have well drawn the conclusion without any further assistance that the witness was deliberately - because of his friendship, and affiliation towards the accused – withdrawing from his earlier unequivocal evidence in order to assist him and in that sense it, again, leaves this dangerous state of speculation without the jury being assisted in some sense as to the basis upon which the witness had changed his position. 

Indeed, in any event, we would say in the context of miscarriage of justice in this trial, the answers given by the witness were relatively neutral, and, indeed, some way, gave some cogency to the fact that he had resiled from his earlier unqualified position, so that, from a pragmatic point of view we would suggest that in this trial the answers which were given to the additional questions did little to prejudice the accused.

HAYNE J:   Yes.  The witness may have read Domican but that is an unworthy thought.

MR HASTINGS:   I am not seized of that, your Honour.
In particular, the question and answer to which my learned friend referred on page 30 is not a bad answer to the proposition which was put by the

Crown that there was quite a commendable degree of indignation that it had been suggested that he had deliberately created a doubt to assist his friend.  So, at the end of it all, your Honours, we would submit that there is no miscarriage of justice.

GAUDRON J:   Yes, thank you, Mr Hastings.  Yes, Mr Basten.

MR BASTEN:   Your Honours, what my friend is saying is that motivation was a vital element in the Crown’s case and what the jury hears will depend upon what is put before them.  We are not saying that in an appropriate fashion the trial judge could not have permitted that to be done.  He was not asked to.

GAUDRON J:   Yes.  Thank you, Mr Basten.

There may be questions as to the operation of section 38 of the Evidence Act which, in an appropriate case, would justify the grant of special leave to appeal.  In this case, however, we are not satisfied that the cross-examination in issue resulted in any miscarriage of justice.  Special leave is refused.

AT 11.10 AM THE MATTER WAS CONCLUDED