Pollitt v The Queen - [1991] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M45 of 1990
B e t w e e n -
ROY ANTHONY POLLITT

Appellant

and
THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 NOVEMBER 1991, AT 10.15 AM

Pollitt(2)	1	13/11/91
MR R. RICHTER, QC: If the Court pleases, I appear with my	learned friend,	MR A SHWARTZ, for the applicant.

(instructed by Kenna Croxford & Co)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR N. PAPAS, for the Crown.
(instructed by J.M. Buckley, Solicitor to the
Director of Public Prosecutions)

MASON CJ: Yes, Mr Bongiorno.

MR BONGIORNO:	If the Court pleases, before my learned friend commences, if I might draw the Court's attention to an error in one of the documents. I
am not sure, having regard to the procedure to be used in this appeal, what the status of the document still is, but it is the answering
statement of the respondent that was filed
originally under the new procedure. It appears at
page 578 of the appeal papers and the assertion by
the respondent in paragraph 2(a) that Mrs Simpson
was shown a photograph:

the day after the murder -
is in fact incorrect and the contention of the
applicant is correct, so that if the last sentence
in paragraph 2(a) was struck out, the document
would be correct.

MASON CJ: Very well.

MR BONGIORNO:

And there is a further error in the next paragraph; indeed both assertions of fact were

wrong.

The next paragraph reads: In paragraph 8 Hargreaves states that Jennifer

McMahon (also known as Jennifer Curillo)
" •••• admitted that she had never spoken to the
Applicant on the telephone before or after

that occasion."
The document goes on to say, "This is
correct". It is contended that this is not
correct, and the amendment which I have indicated
to my learned friend is that it should read, "This
is not correct. She had met and spoken to the
applicant on previous occasions face to face and
had spoken to him on the telephone subsequent to
the relevant occasion." I would seek such leave as

is necessary to make those amendments. The
relevant appeal book references - it might be of
assistance to the Court to give the references as
being 55 and 56, 82 and 83 and 109 and 110.

MASON CJ:

You do not object, Mr Richter?

Pollitt(2)

13/11/91

MR RICHTER:

No, Your Honour.

MASON CJ: Very well. Those amendments will be made. Yes,

Mr Richter?

MR RICHTER:

If the Court pleases, whilst those amendments

have been made, if I can take the Court to the last
amendment that was made, the complaint that we had
was that that evidence ought to have been excluded,
and on the voir dire where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pollitt v The Queen

Details

AGLC: Pollitt v The Queen [1991] HCATrans 322
Case: [1991] HCATrans 322
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal in the matter of *Pollitt v The Queen*. The applicant, Pollitt, was represented by Mr R. Richter, QC, and Mr A. Shwartz, while the respondent, The Queen, was represented by Mr B.D. Bongiorno, QC, and Mr N. Papas. The dispute concerned the admissibility of certain evidence presented at trial.

The primary legal issue before the Court was whether certain evidence, specifically concerning telephone conversations and prior meetings between the applicant and a witness, Jennifer McMahon (also known as Jennifer Curillo), should have been excluded. The applicant contended that the evidence presented during the voir dire did not establish that Ms McMahon had spoken to the applicant on the telephone before or after the relevant occasion, and that subsequent amendments to the respondent's statement of facts did not rectify this deficiency.

The Court considered amendments to the respondent's answering statement, which corrected factual assertions regarding a witness being shown a photograph and the nature of prior interactions between Ms McMahon and the applicant. The applicant argued that the original evidentiary basis for the trial judge's ruling on the voir dire was insufficient, and that subsequent amendments were vague and did not cure the fundamental defect. The Court ultimately granted leave for these amendments to be made. The applicant's submissions focused on the limited nature of the evidence against him for the murder of the deceased, Mr Simpson, on 18 September 1984, which essentially comprised the testimony of a few witnesses, including Mr Jones, who testified to driving the applicant to the murder location on multiple occasions.

Orders