Kruithof v The Queen

[2019] HCATrans 71

[2019] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B42 of 2018

B e t w e e n -

DALLIN JAMES KRUITHOF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 12 APRIL 2019, AT 10.31 AM

Copyright in the High Court of Australia

MR A.J. KIMMINS:   If it please the Court, I appear for the applicant.  (instructed by Bosscher Lawyers)

MR C.W. HEATON, QC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

BELL J:   Yes, Mr Kimmins.

MR KIMMINS:   Thank you, your Honour.  Could I deal with ground one firstly.  Effectively, there are two positions which were adopted by the President in relation to his decision so far as to why it was relevant that the – and I will use the words “the Robinson direction” should be given and also that of Justice Boddice.  The President, at application book 58 in paragraph [8] of his decision, effectively summarised the cross‑examination of defence counsel and it is realistically to the cross‑examination of the defence counsel that this whole ground relates, I would submit. 

His Honour noted that in the second sentence, that the person Clack, who was the primary witness that this ground deals with, gave no direct response to the proposition that his Honour had set out but admitted that he may have been mistaken in his evidence that the appellant had said that he had found drugs in the kitchen.  That seems to be the only realistic area that defence counsel sought to cross‑examine this person Clack.  As a result of the cross‑examination, Clack indicated – conceded that he could well have been mistaken about part of his evidence. 

Justice Boddice dealt with this cross‑examination of Clack between application book 79 and 81, between paragraphs [133] and [141].  Could I take the Court specifically to paragraph [141] and his Honour Justice Boddice there outlines the point effectively that I took the Court to so far as what the President said about the one point in cross‑examination that seemed to be put by defence counsel to Clack that he was mistaken.  That, once again, deals with the fact that the appellant had told Mr Clack that he had found drugs in the kitchen. 

Both the President and Justice Boddice identified that as being the specific point that realistically was looked at so far as whether this direction should have been given.  That being the case, when one analyses both of what the President said and Justice Boddice on this point, there realistically was no clash of credibility or no attack upon Clack’s credibility as such because defence counsel had already obtained a concession that what Mr Clack had said ‑ the relevant point that was put to him, may well have been mistaken.  So, the submission made by the applicant is that there was no challenge between the evidence – sorry, the position of the Crown and the position of the defence so far as this witness’ evidence was concerned.

BELL J:   Was this a matter that the trial judge raised with counsel?

MR KIMMINS:   Yes, your Honour. 

BELL J:   Counsel for the defence submitted that the defence would seek, as it were, an attenuated Robinson‑style direction, going only to those matters that were inculpatory but not exculpatory in the evidence of Mr Clack.  Is that a fair way of categorising it? 

MR KIMMINS:   Your Honour, could I – I am not challenging what your Honour indicated, but effectively defence counsel originally indicated that all he required was a general direction so far as the credibility of witnesses were concerned and did not require a full Robinson direction.  Specifically, a full Robinson direction would have included “scrutinise with care” or “great care” and the word “warning” and they ‑ ‑ ‑

BELL J:   But, nonetheless, defence counsel did indicate a desire to have a warning in relation to the evidence given by the witness Clack insofar as that evidence was inculpatory. 

MR KIMMINS:   Could I take the word “warning”, your Honour, and that is realistically where my submission, so far as this is concerned, leads to. 

BELL J:   Yes. 

MR KIMMINS:   On my reading of the material there was ‑ the defence counsel did not specifically ask her Honour for a warning as such.  Her Honour then, in her Honour’s summing‑up, which we have summarised - the relevant pages are summarised in Justice Boddice’s decision at application book 85 at paragraph [166], and the relevant portions, we would submit, are at line 30, where her Honour starts the sentence “You can see” and then she uses the words: 

should scrutinise Mr Clack’s evidence with care. 

Then in the next paragraph, specifically the word “warnings” are used in the first sentence and the last sentence.  Her Honour uses the word “warnings” twice.  As this Court has said on a number of occasions, when a warning is required to be given to a jury it is to be given with the position of the judge directing the jury that there are specific reasons why they would treat a particular type of evidence with care and such a warning is required.

Throughout her Honour’s summing‑up in this particular case she used the word “warning” on seven occasions.  If I could briefly just note at application book 7, line 10, right in the second paragraph, she specifically refers to how she is going to break her summing‑up into two parts.  So she uses the word “warnings” in the first part.  Application book 12 is what I have just taken the Court – the two references to the word “warnings”.  Application book 15 at line 36 where the reference to:

And I’ll also give you a warning shortly about –

that.

BELL J:   But that is a warning in relation to another matter. 

MR KIMMINS:   The word “warning”, your Honour – I accept that, but her Honour on a number of occasions has used the word “warning” ‑ ‑ ‑ 

BELL J:   But your complaint is with a warning to scrutinise with care the evidence of Mr Clack. 

MR KIMMINS:   That is correct, your Honour. 

BELL J:   That warning was in terms that Mr Clack might have a strong incentive to implicate your client falsely. 

MR KIMMINS:   Yes, your Honour. 

BELL J:   To improve his own position. 

MR KIMMINS:   That is correct.  Yes. 

BELL J:   So you accept that some of Mr Clack’s evidence, if accepted by the jury, was adverse to your client’s interest. 

MR KIMMINS:   Yes, your Honour.

BELL J:   And some, you say, was helpful to his interest on self‑defence.  Your argument takes up that a direction to look at Mr Clack’s evidence with care, because Mr Clack might be interested in falsely giving evidence inculpating you, might have in some way affected the jury’s assessment of Mr Clack’s evidence to the extent it was favourable. 

MR KIMMINS:   Your Honour, that is ‑ the end part is correct.  Could I just note this.  It really comes back to this, that one analyses the course of the evidence in‑chief in the cross‑examination which is effectively summarised in both the decisions of the President and Justice Boddice.  There were no real differences between the parties so far as Clack’s evidence is concerned. 

The one point that was specifically cross‑examined about was neutralised when Mr Clack indicated that it was – he could well have been mistaken on that point and thus there was no reason to tell the jury that they had to scrutinise it with care, the evidence – his evidence with care, and giving the warning from the position of the judge. 

In due respect, the position that we would submit is that it took away from the effect.  The jury could well and truly have said we do not know about Mr Clack in these circumstances so we will in fact ignore everything that he had to say.  So that was effectively the position and that is what we submit ‑ ‑ ‑ 

BELL J:   The judge was in a difficult position because if the judge had not given a warning, having regard to Mr Clack’s plain incentive to give evidence to assist the Crown, that might have been a successful basis for challenge to any conviction. 

MR KIMMINS:   Theoretically yes, your Honour, but my submission is not realistically in this particular case, because when everything – when a microscope is held up to the whole of Mr Clack’s evidence, there was no real difference in the positions of both the prosecution and the defence so far as the jury accepting his evidence.

Both the prosecution and the defence wanted his – the jury to accept his evidence, obviously for various reasons.  The prosecutor had indicated as part and parcel of her address that the jury would have no problem in accepting everything that he had to say and, as it transpired, defence counsel realistically did not attack his evidence at all. 

If the Court has regard to what the President indicated and that – at application book 71, paragraphs [69] through to [72], the President there identifies discussions which were had between defence counsel and her Honour and also the Crown Prosecutor in relation to what type of direction should be given.  It was effectively a general direction according to defence counsel ‑ just the general credibility, reliability issue.  Then the prosecutor at the last paragraph on appeal book 71 specifically indicated: 

But you don’t need to go on and say, scrutinise his evidence . . . with great care and don’t ‑ ‑ ‑

BELL J:   Well, that is the prosecutor’s submission. 

MR KIMMINS:   That is the prosecutor.  Mr Martin was the defence counsel ‑ ‑ ‑ 

BELL J:   Yes. 

MR KIMMINS:   What I took the Court to ‑ ‑ ‑ 

BELL J:   So, Mr Martin, in response to a discussion about what, if any, direction was needed in relation to Mr Clack’s evidence - Mr Martin submits: 

He corroborated with the police and he’s on drugs at the time, you know. 

MR KIMMINS:   Yes. 

BELL J:   That was the evidence that was, as it were, adverse to your client, was it? 

MR KIMMINS:   No, your Honour.  The point about the adverse statement was that it was alleged that the applicant had said to Mr Clack that this involved drugs.  The killing – the shooting involved drugs and that there had been some drugs which Mr Clack had indicated both the deceased and the accused mentioned to him on the night in question that had gone missing.  But then supposedly in the confession the next day, it was identified that the applicant said to Mr Clack “I found the drugs in the kitchen”. 

So that was to be weaved in with what was suggested to be the motive, that there had been a falling out between the deceased and the applicant over some missing drugs.  The Crown then suggested that this was, in fact, an act of retaliation or retribution because of the missing drugs.  Then the next day there was reference to “I found the drugs in the kitchen” and to that proposition it was put by defence counsel that he may well have been mistaken that that was said and Mr Clack indicated “Yes, I may well have been mistaken that the applicant, in fact, said that”. 

KEANE J:   Mr Kimmins, given what is at paragraph [69] that you have taken us to and then [70], what is it that is wrong with what the President then concludes at [71] and [72]?   What is the specific error? 

MR KIMMINS:   My submission is that what the President had done is indicated that it was because the defence counsel wanted the jury to disbelieve what Mr Clack had said so far as that one point ‑ that the direction was required.  But I have been at pains to submit, as Justice Boddice had indicated, there was really no challenge between the positions of the prosecution and the defence so far as Mr Clack’s evidence was concerned.  Once Mr Clack had conceded that he may well have been mistaken about that one point which had been put to him ‑ ‑ ‑

KEANE J:   But where does that appear in the actual context of the trial that that had ceased to be an issue between the Crown and the accused?  I mean, it is all very well to say in retrospect that there does not seem to have been much in it, but the President there is talking about how things stood as counsel were addressing the jury and as counsel were addressing the jury there does not appear to have been an acceptance – this happy unanimity between the parties that you are now addressing us on. 

MR KIMMINS:    At application book 66 at about lines 15 to 30, the President quotes from defence counsel’s address, and the relevant paragraph is the final one at about line 28.  So, that is all the defence counsel said in relation to points of dispute between the prosecution and the defence so far as Mr Clack’s evidence was concerned.  My submission is that makes it clear that the prosecutor – sorry, the defence counsel in relation to that one point, that is the high point ‑ ‑ ‑

BELL J:   But after the exchange recorded at paragraph [69] of the President’s reasons, one sees that before embarking on the summing‑up, and I take it this is after the addresses, the trial judge says:

I’ll give a version of Robinson incorporating it with bad character -

and so forth and there is no demur from defence counsel. 

MR KIMMINS:   No.  The point we seek to make is this, that at that particular point in time her Honour did not say that she would be warning the jury or directing them to scrutinise with care.  They were the areas that the prosecutor had indicated were not necessary in this particular case ‑ in the earlier exchange I took the Court to.  The defence counsel too just wanted a general credibility direction as such.

NETTLE J:   Did defence counsel take an exception, subsequently?

MR KIMMINS:   No, your Honour, no.

NETTLE J:   It rather suggests that his view of it was that which is portrayed by the President, does it not?

MR KIMMINS:   Justice Boddice dealt with that aspect of no complaint being made at application book 88, in paragraph [182] – indicated that the mere fact that there was the acquiescence of the defence counsel that did not prevent a miscarriage of justice as such.

NETTLE J:   It is just that if the defence counsel had been mistaken about the sort of Robinson direction the trial judge was going to give, which is referred to in paragraph [70] of the President’s reasons, it would be London to a bridge that he would take exception if the trial judge then turned around and gave a different sort of direction, would it not? 

MR KIMMINS:   I think the only way I can answer that, your Honour, is that he did not take exception to it.

NETTLE J:   Quite – which rather suggests that what he got was what he expected to get.

MR KIMMINS:   That is the view, yes, your Honour.  So far as the second point was concerned, if the Court does not wish anything further so far as the first ground, the second ground – sorry, there is one further thing.  The only other reference in the judge’s summing‑up to the phrase “scrutinise with care” was when her Honour was dealing with defence counsel – summary of the defence counsel’s submissions and that is at application book 33, at line 18, between lines 15 and 25. 

That is the only other reference to scrutinising the evidence carefully and that was in relation to the question of intent to kill which then leads in to ground 2 which was the reference to the post‑offence conduct that her Honour dealt with in relation to things that would have occurred afterwards.  The point that we seek to make is this, that her Honour did not specifically make it apparent to the jury that that could not apply to the question of murder – it could only apply to the question of unlawful killing as such.

Justice Boddice referred to a decision of the Queensland Court of Appeal of Murray where his Honour summarises the effect of that decision.  The President did not make any reference to Murray’s Case at all in his decision.  The further matter is as to how the Crown sought to use it – and could I indicate it was quite clear that Crown counsel indicated to the judge that the Crown was not suggesting that the post‑offence conduct could, in fact, apply to the murder conviction.  It was only to manslaughter. 

Her Honour summarised the position of the Crown at – her Honour effectively indicated that there was reference to “retaliation” and that is at application book 29, line 45 to 30, line 5, the reference at line 46 to an “act of retaliation” before her Honour then goes on to summarise the Crown’s submissions so far as post‑offence conduct as such.  So, the aspect of retaliation, obviously as understood by lay persons, would include an intentional act on the part of the applicant which then her Honour morphs into a discussion about how the Crown suggests the jury may well use the post‑offence conduct.

NETTLE J:   I am sorry, I am missing the point.  There was no question, was there, but that the killing was intentional?  That was agreed.  The only question was whether it was a matter of self‑defence.

MR KIMMINS:   Both the President and also Justice Boddice identified that intent was still a matter for the jury to consider.

NETTLE J:   Yes, but it is ‑ ‑ ‑

MR KIMMINS:   But, the major point was self‑defence.

NETTLE J:   It was the only point, was it not?  There was no issue taken that he had killed with intent to kill or, at least, inflict serious bodily harm or grievous injury.

MR KIMMINS:   There was no admission made in relation to that and it was still an issue ‑ ‑ ‑

BELL J:   Mr Kimmins, it would have been difficult ‑ ‑ ‑

MR KIMMINS:   Yes, I accept that.

BELL J:   ‑ ‑ ‑ four shots in quick succession.

MR KIMMINS:   I accept that.

NETTLE J:   And to the head.

MR KIMMINS:   I accept that. 

BELL J:   Yes.

MR KIMMINS:   Thank you.

BELL J:   Mr Heaton, we do not need to hear from you.

In our opinion there is no reason to doubt the conclusion of the Court of Appeal.  Special leave is refused.

AT 10.52 AM THE MATTER WAS CONCLUDED