McDonald v The Queen

[1985] HCA 76

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane, Dawson JJ.

KATHRYN MAREE McDONALD v. THE QUEEN

3 December 1985

Decision

GIBBS C.J., WILSON, BRENNAN, DEANE, DAWSON JJ.: Over the adjournment, the Court has had an opportunity of considering the arguments advanced by Mr Shields in support of the grant of special leave. Since the Court by majority has concluded that no prima facie case for special leave has been made out it is unnecessary for the Court to hear Mr Blanch.

2. In deference to one of the arguments presented by Mr Shields, we make the following observations. Although the statements by the co-accused were admissible, as a matter of law, as evidence against the applicant since she had accepted them as correct, the trial judge recognized, rightly, that he had to consider whether in the exercise of his discretion he should refuse to allow the jury to have regard to them (they already being before the jury as part of the case against each of the co-accused) when they were considering the case against her. Evidence that an accused has agreed generally that the contents of a detailed statement made by a co-accused are accurate will be likely to be of doubtful weight and unfairly prejudicial, particularly if the statement of the co-accused is in some respects inconsistent with the statement made by the accused or refers to facts which were not within the direct knowledge of the accused. Generally speaking, if a statement made by a co-accused contains allegations of particular facts involving the accused, the fair and proper course during a police interrogation will be to ask the accused specific questions as to those facts, rather than to seek comment on the statement.

3. Although the practice in this regard is a matter of general importance that would in an appropriate case warrant the grant of special leave to appeal, the Court (Gibbs C.J., Wilson and Dawson JJ., Brennan and Deane JJ. not concurring) is satisfied, having regard to the particular circumstances of this case - the other evidence in the case, the fact that the statements of the co-accused were necessarily before the jury in any case, the careful and correct direction to the jury as to the use they were to make of the evidence with respect to the applicant - that the course taken by the trial judge did not result in any unfair prejudice to the applicant. Special leave is therefore refused.

Orders

Application for special leave to appeal refused.