Melbourne v The Queen

[1998] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D163 of 1997

B e t w e e n -

ROY BERNARD MELBOURNE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 1998, AT 2.51 PM

Copyright in the High Court of Australia

MR S.J. ODGERS:  May it please the Court, I appear with my learned friend, MS S.J. COX, for the applicant.  (instructed by the NT Legal Aid Commission)

MR R.S.L. WILD, QC:  May it please the Court, I appear with my learned friend, MR M.J. CAREY, for the respondent.  (instructed by the Director of Public Prosecutions (Northern Territory))

McHUGH J:   Yes.  Mr Wild, the Court thinks we may be assisted by hearing you first.

MR WILD:   Your Honours, the argument which is being put in this case by the applicant is, to some extent, a bootstraps argument because there are two legs to it.  On the one hand, the applicant is claiming that an incorrect direction was given as to character, by the trial judge, and on the other hand, that the applicant and other accused in similar situations are entitled to rely upon material provided to psychiatrists, out of court, as facts, in evidence, in the case itself.  In other words, what used to be regarded as entirely hearsay material is suddenly given a greater relevance and a greater substance than it previously had.  Now, in all of the cases to which we have made reference in our material, and those cases to which we have been able to find any reference to this area, it is clear that material given to psychiatrists, or other medical experts, as hearsay material is not elevated to evidence until there is evidence in the case itself.

McHUGH J:   Why, having regard to the authorities, is not, for example, the accused’s own statements to the police matters which the jury were entitled to take into account?

MR WILD:   They are matters that the jury can take into account, your Honour, and in respect of which character directions may be given, so it appears in some of the authorities - I am not talking about English authorities here, but Australian authorities ‑ ‑ ‑

McHUGH J:   No, Australian authorities.

MR WILD:   But, in fact, in obiter, in cases that reference is made.  But that is a different thing, with respect, to elevating the opinion of the medical witnesses themselves to some greater status, because of ‑ ‑ ‑

McHUGH J:   But once that evidence is in, and if it does go to character, for example, or support the expert opinion, or is the basis of the expert opinion, why is not a direction concerning character in respect of the probability, relevant?

MR WILD:   Your Honour, can we restrict ourselves, with respect, so that I understand the argument, to what is contained in the record of interview as opposed to what might have been said by the accused to his doctors in privacy?

McHUGH J:   Yes.  I do not think we can quite contain - because, on the authorities, what he said to the doctors may be evidence as to what his feelings or ‑ ‑ ‑

MR WILD:   At the time.

McHUGH J:   At the time, yes.

MR WILD:   That is true, but the ‑ ‑ ‑

CALLINAN J:   Evidence of conduct or behaviour ‑ ‑ ‑

MR WILD:   Yes, the difficulty we have with that, of course, is that in this particular case he is not able to give any sensible account of what occurred at the time.  That is one of the problems that arose in the characterisation of this material by his trial counsel, and that is something I will come to in a moment.  But, your Honours, all that the experts can rely upon, with respect, as being evidence in the case is, at best, what appears in the records of interview, not, with respect, what he tells them in private some months after the events and not strictly in a contemporaneous situation.  That seems to be the exception which the cases refer to.  The other exception which there might be is material provided by a patient of a doctor which, itself, helps the doctor understand his problems in the sense that the man may be delusional.  The doctor can give evidence if the man says, “I am Napoleon, here is my hand inside my chest”, that kind of thing, as opposed to evidence which is said to be sensible evidence or sensible history on past experiences.

There is a different situation, with respect, with a history which he purports to give of his past life, if that is not supported by evidence at trial, given on oath or in some other acceptable way, by him.  It cannot be, with respect, the fact that he speaks to Joe Blow and any other number of people at the corner, and the doctors rely upon that material as helping their opinion.  That material itself does not become fact.  That remains as hearsay until such time as there is evidence of it which is not hearsay, before the trial.  In other words, would have to come from the accused man himself in a trial situation.

So, there is the difference between, with respect, out of court statements which are not contained in the record of interview, and other out of court statements.  It is the respondent’s submission that, in this case, there was no need for the character direction as to credibility, in respect of, at best, what appeared in the record of interview. 

I then turn to the record of interview.  The situation which developed at the end of the trial was, to a large extent, the making of counsel for the applicant, in that he specifically said on a number of occasions, both during the course of his final address and in the discussion with his Honour, which ended with the giving of the limited character direction, that the matter of the statements made in the record of interview had been attacked by himself.

My learned friend, Mr Odgers, in his submissions to the court, which you have read no doubt, points out the fact that counsel himself may have misunderstood what he was putting.  Nevertheless, if this Court gives leave, it should take into account, with respect, the way in which counsel himself saw the case as being presented at trial and the issues which then loomed large at trial.  It is clear, with respect, on reading the material, that what appeared to trial counsel as important was the character direction in terms of the propensity leg of the argument.  So, to that extent, we would say that he did not require a full direction although as a throwaway line, as we put it, at the end of his submission, he said, “We will have credibility too, thanks very much”, but then did not follow that through and, as the Court knows, did not check, as it seems, the fact it was given.

McHUGH J:   Mr Wild, can I tell you, one thing that certainly has been exercising my mind is that the reasons given by the Court of Appeal indicate that they really have not examined the real issue in the case for themselves.  I have particularly in mind what appears at page 127 in Justice Gallop’s judgment where he says, at the end of the page, the last sentence:

It was his state of mind which was being examined by the experts and thus by the jury, not the extraneous question of whether the accused should be believed in terms of factual dissertations because he was of previous good character.

Now, arguably that statement is incorrect, standing alone.  I appreciate what you say about the factual context of the case, but it was perhaps a reason assisting in this Court in the decision to grant special leave, if the Court comes to the view that the matter has not been examined in accordance with the proper principles as it ought to have been.  Do you wish to say anything about that?

MR WILD:   Yes, your Honour.  The first thing I will say is, perhaps I was more persuasive with their Honours than I am being today.  But, the way in which the case was conducted, your Honour, was that control was the issue that we are concerned about.  That led me into the area, which you have no doubt read, at the beginning of the discussion about what direction was required, when I was wondering why they were suddenly asking for this direction because the way the case developed.  I was clearly wrong about that in so far as they were entitled to the propensity direction.  As to the credibility one, it seemed from the way that counsel had conducted his case that that was not an issue.

That is the argument that I put before the Court of Criminal Appeal which was accepted, which was that it was not a question of whether his statement to the police officers was or was not credible, because his own counsel was casting aspersions on it and, in fact, disavowed what was in it.  My learned friend, as I said, points out that there were some other issues that could have been developed by counsel at the time, which were not.  They are really the things I point to when we say that this Court should not now interfere with the result and grant special leave, because it is inappropriate - there has been no miscarriage in a case where counsel had the opportunity to put the various arguments that are now being put in relation to the use that could have been made of credibility as a side issue.

As we put at the time and we put here today, those are issues which did not loom large in the way in which the case was being conducted at the time.  It is in that environment and that climate that the Court needs to look at it.  So whether, strictly speaking, their Honours have quite interpreted correctly in the Court of Criminal Appeal, nevertheless, it is the Crown case that there has been no miscarriage in this situation where the opportunity has always been given.  This, of course, is one of these cases where the fault in the judge’s charge has been found some time after the hearing, not at the time, and not by counsel sitting in the case listening to it, but some time after, someone looking carefully to find a justification for coming ‑ ‑ ‑

McHUGH J:   Yes, one gets the impression sometimes that counsel who have answers waiting for questions to turn up and ‑ ‑ ‑

MR WILD:   Yes, well, that is true.  It does not deprive an applicant of the right to have his day in court, of course, your Honour.  We do not say it should.  What the Crown puts in this case, substantial justice has been given to this man, he has had a fair trial, and there is no need for this Court now to grant special leave.

McHUGH J:   Thank you, Mr Wild.  We need not hear you, Mr Odgers

There will be a grant of special leave in this matter.

AT 3.03 PM THE MATTER WAS CONCLUDED