Radford v The Queen

[1992] HCATrans 247

IN THE HWH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M14 of 1992

B e t w e e n -

RODERICK WILLIAM RADFORD

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 AUGUST 1992. AT 3.35 PM

Copyright in the High Court of Australia

Radford 1 28/8/92

MR O.P. HOLDENSON:  May it please the Court, I appear in

this matter on behalf of the applicant, Mr Radford.

(instructed by Patrick McQuillen & Associates)

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

my learned friend, MR T.C. DE URAY-URA, for the

Crown. (instructed by the Director of Public

Prosecutions (Victoria))

MASON CJ:	Mr Holdenson.
MR HOLDENSON:	This Court in recent years has been called

upon on a number of occasions to consider the issue

of whether or not the evidence of a given witness

in a criminal trial ought be the subject of a

special warning to the jury. It happened in

Bromley v Karpany and in numerous cases and most

recently of course, in Pollitt.

The issue is again before the Court in this

application, although it is submitted in a much

more confined form, namely that which is to form

the content of the warning; in other words, the

nature and scope of such a warning.

In this case, the prosecution placed

substantial reliance on the indemnified witness,

Peter Hogan. When I say indemnified, he had been

granted an indemnity by the Director of Public

Prosecutions from prosecution and he was described

in the joint judgment of the majority of the court

below as being of such relevance as to - the court

expressed it in this way: "The success of the

prosecution case was entirely dependent upon the

jury's readiness to act upon his evidence." Now,

that witness, Peter Hogan, was in fact the subject

of a warning by the learned trial judge, and I will

come to the terms of that if I might in just a

moment.

The complaint made on behalf of the applicant both in the court below and in this Court, however,

is that the warning given was in the circumstances

of the case insufficient. Now, that complaint is

expressed in various ways within the application

book. If I could very briefly take the Court to

page 98 of the application book where the Court

will there find the second page of the draft

notice of appeal. If I could at the outset make it

clear, no reliance is placed upon the first ground

and reliance being placed on grounds (ii) - (v)

which is simply the one ground expressed in various

ways and when I refer there to the

Court of Criminal Appeal, of course reference is

being made to the majority because, of course,

His Honour Mr Justice Smith dissented.

Radford 2 28/8/92

As to the facts, if I could take the Court

very briefly to the facts, Peter Hogan had been

charged with theft of the motor car which was used

in the armed robbery of the bank, and the armed

robbery of the bank, and there is no doubt that he

_was involved in the theft of the motor car, on his

own evidence. As to the armed robbery, there were

three men involved, two within the bank, one the

driver of the getaway car, the motor car; two had

been dealt with, Egan and the brother of

Peter Hogan, one Wayne Hogan. So the question in

the case was the identity of the third and final

member of the gang of robbers. It could only have

been one of two persons: the applicant,

Mr Radford, and the indemnified witness,

Peter Hogan, both of whom of course denied it.

The manner in which Mr Hogan was granted his

indemnity was so that he might give evidence on

behalf of the Crown against the applicant and it

was that witness's understanding that if his

account in any way varied from that which he had

given to the police, then the charges of armed

robbery would, to use his expression, "be

resurrected". As I indicated to the Court a little

earlier, this witness was the subject of a warning

and if I could take the Court - - -

DAWSON J: Was he actually charged with armed robbery?

MR HOLDENSON: 

Yes, he had been charged with armed robbery,

but those charges were not being proceeded with,
but his understanding was that if he in any way

varied in his evidence, they would be resurrected.

If I could take the Court to page 8 of the application book where there is there set out the

charge of the learned trial judge to the jury, at

the head of the page the learned trial judge states
to the members of the jury that it had been

foreshadowed that something be said about Mr Hogan

and there is then set out at line 5 the classic

definition of accomplice and in the next paragraph it is indicated to the jury that it is for them to

determine whether or not Peter Hogan was an
accomplice. There is then something said at

line 23 as to the rationale of the warning which is

being given at that point in time, and His Honour

states:

It is the experience of the law that the

evidence of accomplices is frequently

unreliable. Accomplices seek to justify their

own conduct. In doing that, they often seek

to shift the blame wholly or partly on to

others. In the process, they construct

Radford 3 28/8/92

untruthful stories, which tend to exculpate

the guilty and implicate the innocent.

On the next page is the definition of

corroboration, on the next page, page 10 of the

~pplication book for the first 18 or so lines are

examples within the evidence, of evidence which is

capable of amounting to corroborative evidence. At

line 18 the warning continues, that is the classic

accomplice warning continues, and then at line 26

on that page, page 10, His Honour states:

Were you to find that the evidence of the

accomplice, Peter Hogan, is properly

corroborated or supported by the other

independent evidence, no particular problem

arises. You would consider the accomplice's

evidence in the same way and subject it to the

same tests as you might think appropriate for

the consideration of any other evidence in the

case.

Now, that was held by the majority of the court

below and the dissenting justice to be incorrect.

That is the last aspect of the warning, but that is

a matter to which I will make reference in a

moment.

DAWSON J: Mr Holdenson, I understand how in practical terms

the identity of the third man lay between the

applicant and Peter Egan, but is that the way in

which the trial was conducted?

MR HOLDENSON:  Yes, the trial was conducted very clearly in

that way. The defence run was alibi; "I was not

there, it was not me". Secondly, it couldn't have

been me in any event" - by reason of the medical

frailty suffered by the applicant, but furthermore

it was very much conducted on the basis that: "And it was him, the indemnified witness who was there."

So there was really three aspects to the defence, one of those aspects very clearly to the effect	that it was Peter Hogan himself who was the third
member. That was a very clear and important aspect
of the defence case at trial.

Now, that witness, Peter Hogan, was simply not

the subject of a warning in connection with his

being a witness indemnified from prosecution, and it is submitted that the warning contained within

the charge is thereby deficient in three respects:

firstly, as was stated by His Honour

Mr Justice Smith in his dissenting judgment, there

was no reference to the indemnity; secondly, there was no reference to Hogan's understanding as to its

effect and in circumstances where he gave evidence,

if he gave evidence, exculpating the applicant;

Radford 28/8/92

and thirdly, there was no reference to, or

explanation as to, Hogan's motive or incentive to

maintain the version which inculpated the

applicant.

DAWSON J~ He was cross-examined about it, was he?

MR HOLDENSON:  Yes he was, and it was also the subject of address by defence counsel at the trial.

By reason of what is submitted to be a

deficiency in three material respects, it is
submitted that the learned trial judge has not

thereby used his judicial authority, to use the

language from the identification cases like

Burchielli and Domican, to alert the jury

adequately to the dangers lurking or inherent in

acting upon the evidence of such a witness.

Now, as to this very matter, the majority of the court below, and if I could take the Court to

page 59 of the application book where there is

there set out a caution on that page of the

judgment of the joint majority, if I could take the

Court to line 25 of that page, the majority states that:

There is authority which suggests that in

the ordinary course of events it would be

incumbent upon a trial judge to make specific

reference to an indemnity and its relevant

terms in the course of his charge -

to the jury. At the head of the next page the
majority of the court cite the authorities which

are authority for that proposition.

For the remainder of that next page, page 60,

Their Honours consider the potential effect of the

indemnity on a witness and this witness. Then, if

I could take the Court to line 29 on page 60,

Their Honours conclude in tbis way:

However the failure by the judge to explain

incentives of this nature to the jury cannot,

we think, be said to have led in the

circumstances of this case to an injustice to

the applicant. Accordingly, in this respect
also we are of opinion that the jury could not
have been confused or misled or insufficiently

informed so as to have led to a perceptible

risk of a miscarriage of justice.

Now, as to that expression at the head of that

page 61 and the circumstances of the case, there is

no explanation. It is not clear as to the matters

to which the court are there making reference.

Radford 5 28/8/92

If it be the way the case was put and the

evidence in the case, it is submitted that that
conclusion is in error when one has regard to the

recent decision of this Court of Domican v R,

(1992) 66 ALJR 285. That case, of course,

~oncerned identification evidence and the nature,

content and scope of a warning to be given where

the Crown places reliance upon evidence of visual

identification. That case is clearly authority for

the proposition - and I am just reading from the

headnote, only one sentence long:

The adequacy of a warning to the jury in

an identification case is to be evaluated by

reference to the identification evidence and

not to the other evidence in the case.

If Their Honours in using the expression

"circumstances of this case" are referring to the

other evidence in the case, then in my submission

for the same reasons that such a warning was held

to be in error in Domican, then the same reasoning

would apply to this matter.

On the other hand, in this case, the

dissenting judge, HisHonour Mr Justice Smith,

simply held and very clearly held that the

direction was insufficient and there was thereby

occasioned a miscarriage of justice, and that is

clearly set out, for example, in the passages

surrounding page 73 of the aplication book.

MASON CJ:	No redirection was sought in this case?
MR HOLDENSON:	No redirection was sought, Your Honour, that

is correct. The point was not taken at trial.

MASON CJ: And it is said that experienced counsel

represented the applicant?

MR HOLDENSON:

That is what was said by the majority, yes,

that is correct. However, reliance is placed in

that regard upon the dissenting judgment because

His Honour Mr Justice Smith, although I do not

recall him using the expression "experienced

counseL" or "leading counsel" or whatever the

expression was, was clearly of the view that

notwithstanding the failure to take the point,

there was a miscarriage of justice. The proviso

was simply inapplicable and His Honour held that

the applicant had been denied a chance of an

acquittal. That is consistent with - and I do not

think His Honour cited the case - a decision of

this Court in Kural v R, a decision of this Court

in 1987, where, as I recall, Mr Justice Toohey and

Her Honour Justice Gaudron made a determination to

the effect that it is not fatal if the point not be

Radford 28/8/92

taken at the trial, and the point was not taken at

the trial and I am faced with that and I was faced

with it in the court below.

DAWSON J: It is not fatal but it does give some indication

_of the way in which the trial was conducted which

may be against your submissions. You see, it

apparently was mentioned in cross-examination - we

do not have that cross-examination before us - it

was mentioned in addresses, and in those

circumstances where the jury had been directed in

any event to treat this man's evidence with

suspicion, it may well be that in the particular

circumstances of the case, although in another case

a direction was required, it was not required here.

MR HOLDENSON:  I understand that point because that is

really the point made by the majority and I can

simply go no further than to say - - -

DAWSON J: That really means no special leave point arises.

MR HOLDENSON:  It is my submission that a special leave

point does arise in this case by reason of the fact

that when one has regard to those authorities - and

I am not sure if the Court wants me to at this

point in time - namely Weightman, Checconi, Button

and the distinction between the judgment of the

majority and the judgment of the minority, it is

clear that it is an issue which ought be, in my

submission, ventilated in this Court, that is, the

entire issue of indemnified witnesses, witnesses

who are immune from prosecution - - -

DAWSON J:  No one disputes that generally speaking, where a

witness is indemnified, it is desirable that this

is drawn to the attention of the jury. But there
is no rule to that effect that whatever the

circumstances are, that must be done, nor would it

be proper to lay one down.

MR HOLDENSON:  It is my submission, Your Honour, that when

one has regard to the authorities, the New Zealand

authority of Weightman, Checconi in New South Wales

and of course Button, the decision of the

Queensland Court of Criminal Appeal, the

authorities do go that far that the effect there

there ought be a reference to the indemnity and its

effect.

If I could firstly take the Court to the case of Weightman - - -

DAWSON J:  we can accept that. We do not need to go to the

cases for that proposition. I can accept it

anyway, but ordinarily speaking there ought to be a

direction.

Radford	7	28/8/92
MR HOLDENSON: Right, yes.

MASON CJ: As I understand it, the majority in the Court of

Criminal Appeal accepted it.

MR HOLDENSON:  Yes. However, it is simply unclear as to why

-it is that they were of the view that when applying

those authorities, if that be the right expression,
to the facts of this case, there was no injustice.

The circumstances of the case in the light of page 10 of the judgment, there having been considerable reference to the facts of the case, in my

submission - - -

DAWSON J: You see, you cannot really deal in generalities

here, that is what I am saying to you. Here you
had a witness whose evidence the judge said must be

scrutinized carefully because he would be liable to

be looking after his own skin.

MR HOLDENSON:  Yes.

DAWSON J: Well, now, you could repeat that in relation to

the indemnity but the indemnity was brought to the

attention of the jury, they knew about it, and

having been given that warning, in all the

circumstances of the case the failure of the judge

to refer specifically to the indemnity may not have

mattered at all.

MR HOLDENSON:  That was certainly the view taken by the

majority. When one has regard to the dissenting

judgment -

DAWSON J: Well, Justice Smith took a different view, and one can see that there can be different views on

this subject.

MR HOLDENSON: Well, really, to be quite candid about it, I

am simply relying on and adopting the minority

view, the view of Mr Justice Smith, and if forced	to adopt that position, it would be my submission
that it is appropriate for this matter to be the subject of a grant of special leave for the reason put forward by Mr Justice Smith, namely there has been a miscarriage of justice in this matter.

However, I put it a little more highly and

attempt to make it attractive to the Court for the

grant of special leave and I put it in this way:

in this day and age where the prosecution all over

Australia places greater reliance on witnesses of

this nature, it is appropriate that this Court

consider the entire issue of indemnified witnesses

and what ought flow in circumstances where the

Crown not only rely on such witnesses, but place

substantial reliance on such witnesses.

Radford 8 28/8/92

The matter has come before the Court in a

tangential sense in the past. For example, in

Chidiac and Asfour, the witnesses in that case were granted immunity from prosecution, although it did

not have to be considered by the Court in quite the

_light I put.

It is submitted that it is appropriate for

this Court, where the authorities be as varied as

they are, New Zealand, Queensland, New South Wales

and what might be called a mere reference with no

explanation as to why they did not apply when one has regard to the majority judgment in this case,

for this Court to make clear - if I could read one

sentence from Weightman's case, that is the

New Zealand decision of His Honour Mr Justice Mahon

as he then was, as is clear from the headnote where

it is best expressed at line 43:

the jury should be told that, in contrast to
the ordinary case of the convicted accomplice

or accessory -

and there is no magic, in my submission, in the

reference to "convicted" -

the witness is escaping prosecution

altogether by virtue of his testimony.

And it is my submission that a warning which merely

refers to his being an accomplice and a reference

to the fact that accomplices seek to justify their

own conduct, does not with sufficient clarity draw

to the attention of the jury that very matter, the

subject of reference by His Honour Mr Justice

Mahon, namely escaping prosecution by maintaining a

consistency in his evidence, the nature of which is

to inculpate the applicant.

Just one final submission in support of that

second basis upon which it is put to this Court

that there ought be a grant of special leave, that

is that there has been in this case a miscarriage

of justice, reliance is placed upon what

Their Honours may well be referring to in that expression, "in the circumstances of this case";

the very matter which was prescribed without any

doubt by this Court in Domican. Unless the Court

has any queries or concerns, that concludes the

submissions in support of the application.

MASON CJ: Thank you, Mr Holdenson. The Court need not

trouble you, Mr Bongiorno. The Court is not

persuaded that this application raises any question

of general principle, and on that footing the

application must be refused.

Radford 9 28/8/92

MR HOLDENSON: If the Court pleases.

AT 3.56 PM THE MATTER WAS ADJOURNED SINE DIE

Radford 10 28/8/92