Riley v State of Tasmania

[2007] HCATrans 806

[2007] HCATrans 806

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H4 of 2007

B e t w e e n -

GALVIN GORDON RILEY

Applicant

and

THE STATE OF TASMANIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART

ON FRIDAY, 14 DECEMBER 2007, AT 9.32 AM

Copyright in the High Court of Australia

MR M.J. BRETT:  If it please the Court, I appear with my learned friend,  MRS M.I. EVANS, for the applicant.  (instructed by Beeton & Mansell)

MR T.J. ELLIS, SC:   If it please the Court, I appear with my learned friend, MR J.N. PERKS, for the respondent.  (instructed by Director of Public Prosecutions (Tas))

KIRBY J:   Yes, Mr Brett.

MR BRETT:   Your Honour, the two pieces of evidence in this case have been dealt with in my submissions as if they were completely separate.  In fact they are connected or they were certainly connected in the circumstances of this case and in terms of their significance.  The discussion between the applicant and the witness about getting their stories straight took place at about 10 or 10.30 on the morning after the shooting.  The applicant then spoke to police later in the afternoon of that same day and the story that he gave police, which has been characterised by us as “the lie”, provides exactly the same detail as what he had discussed with the witness, Mr Maynard.  So I suppose I characterise it really in the context of this case as one piece of evidence. 

It was the applicant attempting to have the witness join with him in telling a story and then following through on it by telling police the same story.  It was a false story, in my submission, your Honours.  Certainly it was accepted by the Crown that the deceased may well have fallen over the fence as he moved to front or speak to the applicant, but the significance of it was, of course, that the applicant was putting it forward as his version as to how the deceased had suffered his injuries; tripped falling over the fence, gets up, stumbles, falls again and then lies there.  My submission is that in the context of this case the evidence was capable of having very great significance in the jury’s mind.

KIRBY J:   You concede, I think, that the prosecution did not in the course of the trial lay it on about this issue.

MR BRETT:   I do concede that, your Honour.

KIRBY J:   Was there a request to the trial judge to redirect the jury along the Zoneff or Edwards lines?

MR BRETT:   There was not, your Honour.

KIRBY J:   May it not therefore be inferred that this was a tactical or strategic decision made in the course of the trial in order to avoid the risk of laying emphasis upon the response of the accused at the time he was first confronted?

MR BRETT:   It is at that point that the hill gets very steep for my argument, your Honour.

KIRBY J:   It does indeed.

MR BRETT:   I would have to concede that that can be inferred.  My submission is, in the circumstances of the case, having regard to the significance of the evidence and having regard to the use or the misuse that the jury may have made of that evidence, that despite decisions that may or may not have been taken by defence counsel at trial, that the absence of a direction, the absence of guidance to a jury as to how they should use the evidence, the absence of a reminder as to the possibility of there being other explanations for that conduct has led to a substantial miscarriage of justice and ‑ ‑ ‑

KIRBY J:   Your concession was somewhat disarming because we do not always get concessions here, but there is also the fact that this Court in the case of Dhanhoa pointed out that it is not a universal obligation to give a full Edwards direction and certainly that was my view in Zoneff.  The problem is, to the extent that trial judges do go into this issue, they lay an emphasis on it that can do a lot of damage, one would think, in the mind of the jury to the accused by focusing attention not on the offence but on what the accused is alleged to have said is a lie.

MR BRETT:   Yes.  The submission I make, your Honour, is that this conduct extended beyond a lie into deliberate conduct by the applicant in attempting to have the only other potential witness to the shooting elaborate with him on a false story.  It hung in the case.  It was evidence that was not spoken about by anyone, including the judge.  It was there for the jury to hear.  Sometimes lies might be brought before the jury incidentally in an interview or they might be told in the witness box.  This was a specific discrete piece of evidence that the prosecution chose to lead. 

My submission is that its only significance to the jury could have been to support the prosecution’s circumstantial case by having the jury consider that the applicant had engaged in that deliberate conduct because he was conscious of his guilt and because the jury were given no guidance about it at all, not from counsel, not from the judge ‑ ‑ ‑

HAYNE J:   But that is the central difficulty, is it not, that because counsel make nothing of it, what is the trial judge going to do?  Start raising arguments that the parties have not raised and bring to the forefront of

consideration by the jury matters which the parties for their own reasons quite sensibly have left aside?

MR BRETT:   Yes, I certainly accept it is a balancing exercise, your Honour.  I suppose I say that in respect of this deliberate post‑offence conduct in particular that it is not hidden in an interview, it is not simply an incidental lie.  It is a piece of discrete evidence which occurs on the morning after the shooting, separate in time from the shooting.  It was there before the jury, properly admissible.  I do not complain about its admissibility, but it was there for the jury and that balancing exercise will always be the case in relation to a lies direction.  There is a little bit in it for both parties in every direction, but in the circumstances and context of this case – I continue to repeat myself because it is the only submission I could make, that in the circumstances and context of this case, the absence of guidance to the jury, the potential for misuse, has led to a miscarriage of justice.

KIRBY J:   Yes, well, you have put the argument as well as it can be put in writing and we have read the written submissions and you have been disarming in your concession and I think you have said everything that can be said.  Is there anything else?

MR BRETT:   No, thank you, sir.

KIRBY J:   No.  Thank you.  We do not need to hear from you on this occasion, Mr Ellis, thank you.

MR ELLIS:   May it please the Court.

KIRBY J:   The reasons of the Court and the orders of the Court will be given by Justice Crennan.

CRENNAN J:   This application concerns the proper direction to be given by a trial judge in a case where the post‑defence conduct of the accused might have been thought by the jury to evidence consciousness of guilt.

The Court of Criminal Appeal, Chief Justice Underwood and Justices Blow and Tennent, below dismissed an appeal on the question of whether the trial judge ought to have given an Edwards and Zoneff direction to the jury concerning the inferences that the jury were permitted to draw.

We are not convinced that this Court’s intervention is required by the interests of justice.  Further, the application has insufficient prospects of success and special leave to appeal is refused.

KIRBY J:   The Court will now adjourn in order to continue the special leave hearings in the Melbourne list.

AT 9.43 AM THE MATTER WAS CONCLUDED