GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND CRENNAN JJ
THE QUEEN APPLICANT
AND
STEVEN WAYNE HILLIER RESPONDENT
The Queen v Hillier [2007] HCA 13 22 March 2007 C1/2006
ORDER
1.Special leave to appeal is granted.
2.The appeal is treated as instituted and heard instanter and allowed.
3.The orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 15 December 2005 are set aside and the matter is remitted to that Court for rehearing.
On appeal from the Supreme Court of the Australian Capital Territory
Representation
D F Jackson QC with P J de Veau for the applicant (instructed by Director of Public Prosecutions (ACT))
P F Tehan QC with W P Lowe for the respondent (instructed by Nelson & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Hillier
Criminal law – Criminal appeals – The respondent appealed to the Court of Appeal of the Australian Capital Territory against his conviction for murder – The Court of Appeal quashed the conviction and entered verdict of acquittal – Whether Court of Appeal erred in quashing the verdict of the jury – Nature of appellate jurisdiction where no common form criminal appeal statute is enacted – Extent of duties and powers given to the Court of Appeal under Pt 2A of the Supreme Court Act 1933 (ACT) – Principles governing the exercise of those duties and powers – Whether in this case it would have been unjust or unsafe for the Court of Appeal to allow the verdict to stand.
Criminal law – Criminal appeals – Prosecution appeal to the High Court of Australia against verdict of acquittal entered by intermediate appellate court – Circumstances in which special leave will be granted.
Criminal law – Evidence – Circumstantial evidence – Whether the Court of Appeal erred in reasoning that, because evidence looked at in isolation from other evidence was consistent with innocence, the conviction should be quashed – Whether the Court of Appeal should have considered whether it was open to the jury, on consideration of the whole of the evidence, to be satisfied beyond reasonable doubt that the respondent was guilty.
Words and phrases – "unjust or unsafe", "unsafe or unsatisfactory".
GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Gummow, Hayne and Crennan JJ ("the joint reasons") and the reasons for judgment of Callinan J. They would allow the appeal from the decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory, but on different grounds, and with a different outcome. I agree with the joint reasons, and with the orders they propose.
The ground of appeal that succeeded in the Court of Appeal was that the verdict of the jury was unsafe and unsatisfactory. The sense in which that expression was…
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.
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Details
AGLC
R v Hillier [2007] HCA 13
Case
[2007] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of the Australian Capital Territory. The Court of Appeal had quashed the murder conviction of Mr Hillier and entered a verdict of acquittal. The dispute concerned the extent of the appellate jurisdiction of the Court of Appeal under the *Supreme Court Act 1933* (ACT) and the principles governing its exercise, particularly whether it was unjust or unsafe to allow the jury's verdict to stand.
The legal issues before the High Court included whether the Court of Appeal erred in its reasoning that a conviction should be quashed if evidence, viewed in isolation, was consistent with innocence. The Court was required to determine whether the Court of Appeal should have considered whether it was open to the jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt. The High Court also considered the circumstances in which special leave to appeal would be granted to the prosecution against an acquittal entered by an intermediate appellate court.
The High Court found that the Court of Appeal's majority reasoning was erroneous. It held that the significance of evidence should not be assessed in isolation but rather in the context of the entire body of evidence. The Court emphasised that if an intermediate appellate court reaches its order by a path not in accordance with proper principle, it is in the interests of the administration of justice to correct that error.
Special leave to appeal was granted, and the appeal was allowed. The orders of the Court of Appeal of the Australian Capital Territory were set aside, and the matter was remitted to that Court for rehearing. One judge, however, would have ordered a retrial rather than a rehearing.
Orders
Orders of the court
1. Special leave to appeal is granted; 2. The appeal is treated as instituted and heard instanter and allowed; 3. The orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 15 December 2005 are set aside and the matter is remitted to that Court for rehearing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Mr Hillier and Ms Hardwick had been actively engaged in litigation about the custody of their children for some time before Ms Hardwick was killed. At the time of her death, Ms Hardwick had obtained orders of the Family Court in her favour. Mr Hillier was dissatisfied with that outcome and had instituted an appeal against the orders. The interim arrangements that had been made for shared custody of the children had come to an end shortly before Ms Hardwick's death. The prosecution case at trial was that Mr Hillier had been taking very active steps towards the prosecution of that appeal until the end of the week before Ms Hardwick died. Those steps were not maintained on the Monday or Tuesday before the discovery of her body on the Wednesday morning.The DNA evidence Several tape lifts were taken from the pyjamas Ms Hardwick had been wearing at the time of her death and these lifts were subjected to DNA analysis. One tape lift, taken from the right‑side flap of the collar of the pyjama top worn by Ms Hardwick, revealed a mixed DNA profile consistent with the profiles of Ms Hardwick and Mr Hillier. Three scientists gave evidence about the DNA analyses that were conducted. Each gave a different opinion about the probability that the contributors to the DNA found on the particular tape lift taken from the right‑side flap of the collar of the pyjama top were Ms Hardwick and Mr Hillier rather than Ms Hardwick and another person chosen at random. Two witnesses, called by the prosecution, estimated the likelihood that the contributors were the deceased and Mr Hillier rather than the deceased and another person as very high. The third witness, a Dr McDonald, who was called by the defence at trial, considered that it was not possible to exclude Mr Hillier or the children as possible contributors to the DNA profile. He said that he regarded it as a "real possibility" that Mr Hillier's DNA had been transferred to the pyjama top without him ever touching the pyjamas, it having been transferred, innocently, by the children. Another tape lift was taken from an area of the collar of the pyjamas closer to Ms Hardwick's neck. All three experts gave evidence that there was an unidentified contributor to the DNA found at that point. They did not agree about whether Mr Hillier could be excluded as a possible contributor to that DNA. One expert, Ms Ristevska, concluded that he could not be excluded; another, Dr Roberts, concluded that there was no clear evidence either way; Dr McDonald concluded that there was evidence to exclude Mr Hillier.Damage to Mr Hillier's hands On 14 October 2002, police wrote to Mr Hillier's solicitors asking that he provide fingerprints and DNA samples. A court order was subsequently obtained that these be provided and on 1 November Mr Hillier attended to provide fingerprints. His fingers had been damaged and he told the officer taking the prints that the damage had been caused by chemicals he had been using while cleaning. Other evidence was given which the prosecution alleged showed Mr Hillier giving inconsistent or implausible accounts about the cause of damage to his fingers. The prosecution submitted that this evidence showed consciousness of guilt because, so it was submitted, the jury should conclude that the injuries to the fingers had been self‑inflicted in order to impede the police investigation. The trial judge instructed the jury that the evidence could be used as pointing to Mr Hillier's guilt only if the jury were satisfied beyond reasonable doubt that what had happened to his fingers was a deliberate act on his part done because he knew the taking of his fingerprints could implicate him as the person who killed Ms Hardwick. The judge further directed the jury that even if they were satisfied of those matters, that evidence, standing by itself, could not prove Mr Hillier's guilt. No exception was taken to these instructions at trial or on appeal.The reasons of the Court of Appeal
Decision
Reasons for decision
GLEESON CJ
(dissent)
GUMMOW, HAYNE AND CRENNAN JJ
(dissent)
CALLINAN J
Assuming, as one must, that these "other aspects of the evidence" were those identified earlier in their Honours' reasons, it by no means followed that it was not open to the jury to conclude that guilt had been proved beyond reasonable doubt. The asserted conclusion would follow only if the significance to be given to the "other aspects of the evidence" was assessed separately from the rest of the evidence. The reasoning of the majority was, therefore, erroneous.Conclusion and orders It has been said that this Court will grant special leave to the prosecution to appeal only in very exceptional circumstances[68]. While it is clear that the Court has several times said it is, and should be, reluctant to grant special leave to the prosecution, it is not necessary to consider the exact content of the principle that underpins that reluctance.[68]R v Wilkes (1948) 77 CLR 511 at 516‑517; R v Lee (1950) 82 CLR 133 at 138; R v Benz (1989) 168 CLR 110 at 111, 119‑120, 131‑132, 146. Where, as here, the verdict of a jury has been quashed by an intermediate court of appeal, and it is demonstrated, as here, that that court reached its order by a path that was not in accordance with proper principle, it is in the interests of the administration of justice, both generally and in this particular case, that the error be corrected. Because the error that has been made will require that the whole case be reviewed to decide whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty"[69], the interests of justice will best be served by granting special leave to appeal, treating the appeal as instituted and heard instanter and allowed, setting aside the order of the Court of Appeal, and remitting the matter to the Court of Appeal for rehearing.[69]M v The Queen (1994) 181 CLR 487 at 494‑495. Upon a rehearing by a differently constituted Court of Appeal, it will be open to the parties to canvass the whole of the evidence at trial to an extent greater than reasonably possible in this Court, and to do that in light of this Court's identification of the error made by the majority of the Court of Appeal in the judgment which gives rise to this appeal. We would therefore make the following orders:1. Grant special leave to appeal.2. Treat the appeal as instituted and heard instanter and allowed.3.Set aside the orders of the Court of Appeal of the Australian Capital Territory made on 15 December 2005 and remit the matter to that Court for rehearing. I agree with Gummow, Hayne and Crennan JJ for the reasons that their Honours give, that special leave should be granted, that the appeal should be allowed and that the orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory should be set aside. Instead, however, of remitting the appeal for rehearing by that Court, I would order a retrial. The circumstantial evidence referred to in the joint judgment, and upon which the applicant relied, included a spate of telephone calls proved to have been made by the respondent in the week before Ana Hardwick died and their immediate cessation after it. No reference was made to these matters in the applicant's opening. A written record of the calls made by the respondent was introduced into evidence without any specific commentary or explanation during the applicant's case. When the respondent gave evidence, he was cross-examined about them, but no particular imputation was directly made to him of the kind that was forcefully pressed in the applicant's closing speech to the jury. I would read the cross-examination, as do Gummow, Hayne and Crennan JJ[70], as focussing upon motive, rather than secret and guilty knowledge of Ms Hardwick's murder, because of its reference to the respondent's inability to fund an appeal, and realization that his prospects of success in it were poor.[70]At [34].