Lovelock v The Queen

[2001] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 2000

B e t w e e n -

EDWARD RICHARD LOVELOCK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE 2001, AT 11.01 AM

Copyright in the High Court of Australia

MR A.J. RAFTER:   May it please the Court, I appear for the applicant.  (instructed by Dearden Lawyers)

MR M.J. BYRNE, QC:   May the Court please, I appear with my learned colleague, MR N.V. WESTON, for the respondent.  (instructed by the Director for Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Rafter.

MR RAFTER:   Your Honours, the applicant applies for special leave to appeal on 10 grounds that are set out in the application at pages 56 and 57 of the application book itself.  It will be evident from that and the written submissions that the applicant has prepared his own material within the confines of the correctional centre where he is serving a life sentence.  Could I perhaps go to his original notice of appeal.  He appealed on three grounds to the Court of Appeal, one of which – the unsafe and unsatisfactory ground – was specifically abandoned at the hearing and the second ground was only faintly pressed, so that the ‑ ‑ ‑

GUMMOW J:   It comes to the first ground, does it not?

MR RAFTER:   The major ground was the adequacy of directions to the jury concerning the evidence of the witness MacIntyre.

GUMMOW J:   Yes.  At paragraph [7] on page 50 of the record Justice Thomas set that out.

MR RAFTER:   Yes, that is right.  It will also be apparent to your Honours that a number of the grounds contained in the application were not agitated before the Court of Appeal and in respect of most of those I will rely principally on the written submissions that have been put in by the applicant himself.  As I said before, the major point was concerned with the adequacy of those directions.

Could I go to the summing up at pages 6 to 7, beginning on page 6 at about line 36, where the trial judge directed the jury with respect to the particular witness involved, MacIntyre.  It was pointed out that she had received an indemnity from prosecution.  The jury was told at line 55 to “assess her evidence very carefully” because of her – then over the page – initial involvement.  Then the jury was directed in these terms at line 15 onwards ‑ ‑ ‑

GLEESON CJ:   There was never any suggestion that she actually participated in the crime, was there?

MR RAFTER:   That is right.  Her only involvement was as an accessory and that would have been common ground at the trial – after the fact, I should say.

GLEESON CJ:   So this is not the common type of case where somebody has a motive to, as it were, give an account of the events so as to shift blame from himself to the accused?

MR RAFTER:   It is not the typical accomplice case and, indeed, there are authorities that suggest that an accessory after the fact is not necessarily an accomplice at all for the purpose of giving an accomplice‑type warning, but in reality the circumstances are going to vary from case to case.  It might be an accessory ‑ ‑ ‑

GLEESON CJ:   The most common accomplice‑type warning is one which warns the jury that a person who is one of a number of participants in an event may have a powerful motive to describe the event in a way that minimises his role.

MR RAFTER:   And maximises that of the accused.

GLEESON CJ:   Yes.

MR RAFTER:   Precisely.  This was never suggested to be the case in this particular case.  The reasons for the warning which were articulated before the Court of Appeal are set out in Mr Justice Thomas’ judgment at page 53 of the application book in paragraph [18] and they really relate primarily to the matters I have already indicated, but there was one matter identified before the Court of Appeal which had not been the subject of a specific direction and that was the inducement the witness had to ingratiate herself with the prosecution.  That was not specifically the subject of direction and Mr Justice Thomas says over the page, at application book page 54, about four lines down:

While it would have been preferable for the learned trial judge to have mentioned the possible existence of motivation on her part to ingratiate herself with the prosecution, I do not think that its omission can be regarded as a legal error in the present circumstances.

Now, that was the primary point relied upon before the Court of Appeal. 

The applicant in his written material before this Court adds an additional aspect that ought to have attracted a warning.  He sets it out best himself in his written submissions at page 86 of the application book, paragraphs 6 to 7 where he sets out some evidence from the trial – it is not actually in the book itself, but I have checked the transcript and it appears to be accurate.  The witness conceded that she was on a disability pension for a bipolar disorder and the applicant extracts from that concession reliance upon the decision of this Court in Bromley v The Queen (1986) 161 CLR 315, especially in the reasoning of Chief Justice Gibbs where his Honour said to this effect, that:

If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case –

I will not read on.

GLEESON CJ:   When you say she had a motivation to ingratiate – or when the Court of Appeal says she had a motive to ingratiate herself with the police ‑ ‑ ‑

MR RAFTER:   Well, the indemnity from prosecution resulted in her avoiding being charged as an accessory to murder.

GLEESON CJ:   But what had she actually done as an accessory?

MR RAFTER:   She had helped him clean up and then remained in his company in the days following the killing.

GLEESON CJ:   But until she volunteered that information to the police, did the police have evidence of that?

MR RAFTER:   Not necessarily, no.

GLEESON CJ:   But that is her ingratiating herself with the prosecution, is it not?  What was her motive to ingratiate herself with the prosecution before she told to them the same story she told at the trial?

MR RAFTER:   I think the evidence would allow one to infer that the police may have been sceptical about her involvement.  She remained in the company of the applicant in the days following and they were on the run together, as it were, for some days and travelled some distance before the police became involved.  She would not necessarily know what the police would precisely know about her activities following the killing.

GLEESON CJ:   To say that a witness has a motive for ingratiating herself with the police would normally suggest that the witness might have lied to the police about the story she tells implicating the accused for the purpose of getting on the right side of the police for some reason.

MR RAFTER:   In this case she initially told the police a version that exonerated the applicant, and herself for that matter, and one would not know whether or not the police were in possession of material that allowed them to be sceptical about those initial claims.  Presumably they were.  They charged the applicant himself.  As to her own activities that might have been relied upon for a charge as an accessory, one simply does not know what the police knew.  One does not know what she thought the police knew.  Ultimately, it seems she was encouraged by a solicitor to speak to the prosecution and provide the statement and apply for the indemnity which was duly granted by the Attorney‑General.

I accept, your Honour, it is a different case to the usual accomplice case, where the motive for telling lies is more apparent, but she certainly gained by her actions avoiding a prosecution for an accessory after the fact.

Now, as I say, that was the principal point before the Court of Appeal.  The applicant in addition to that adds the Bromley point which was not agitated before the Court of Appeal or, it seems, at trial.  The remaining grounds are set out sufficiently in the written submissions.  In brief, they relate to inadequacies in the summing up, inadequacies in the conduct of the defence case by counsel, the failure by the trial judge to discharge a juror in one instance and various other complaints, but as I say, they are adequately set out in the written submissions upon which I rely.

GLEESON CJ:   Thank you, Mr Rafter.  Yes, Mr Byrne.

MR BYRNE:   Your Honours, our points are two.  Firstly, there is no point or points of general importance raised by this application, nor could it be in any way said that there has been any particular personal injustice suffered by the applicant.  In respect of the second of those, this was, as the Court of Appeal points out in the judgments, an overwhelming Crown case.  It did not depend in any way solely upon the witness now impugned.  There was a body of evidence, including a dying declaration inculpating the applicant, as well as confessions to other persons.

In respect of the two particular points raised this morning, the first in respect to the directions given because of her being an accessory after the fact, the Court of Appeal considered that in detail and considered ‑ ‑ ‑

GLEESON CJ:   Actually this case provides a fairly textbook example of res gestae.

MR BYRNE:   Indeed.  One goes a long way to see a person driving into a camping ground, literally dying, and saying, “Give my boots and my ring to my son”, and then dying after naming the killer.  So on that alone, it was

not a bad Crown case.  The two points raised, the directions given by the trial judge were carefully considered by the Court of Appeal.  They were found to be adequate in the circumstances here and Justice Pincus in any event would have applied the proviso.

The matter raised by your Honour the Chief Justice ingratiating herself with the police, the only evidence that we can find in respect of that in the trial was one question put to her in cross‑examination in these terms – this is at page 106 of the record book in the Court of Appeal, where she is asked, “And the police told you that, didn’t they?  They said, ‘You’d be careful, Ms MacIntyre.  You’re treading a fine line yourself.  You’ll get charged?”  Answer, “No, they didn’t tell me that”.  There the topic seems to have been left.

In respect to her medical condition, again, there was one question asked in cross‑examination to the effect – and this is at page 124 of the record book – whether she had such a condition.  She said she did.  She was asked a second question, whether she was under treatment for that condition at the time or any relevant time, and she said, no, she was not.  There was no suggestion made that that condition may have had an effect on her or the reliability of her evidence.  As your Honours would be aware, Bromley’s Case takes the point that if there is only the evidence of a witness suffering from such a condition, then a warning is required.  This was not such a case.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Byrne.  Yes, Mr Rafter.

MR RAFTER:   I do not have anything in reply, your Honour.

GLEESON CJ:   In this matter we are not persuaded that there was any miscarriage of justice and we consider that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused.

We will adjourn to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED