Riley v The Queen

[1995] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 1995

B e t w e e n -

RODERICK PIERCE RILEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 11.49 AM

Copyright in the High Court of Australia

MR T.A. GAME:   If the Court pleases, I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by B. Hancock, Western Aboriginal Legal Service Ltd)

MR R.N. HOWIE, QC:   If the Court pleases, I appear with my learned friend, MS M.F. LATHAM, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   Mr Game.

MR GAME:   If the Court pleases, in this case the Crown called a witness called Mr Walford at the trial.  They led from this witness some evidence that he was with the applicant earlier in the evening.  They led from this witness some evidence that some time later a phonecall took place in which the applicant told him not to speak to the police.  They led very briefly at page 4 of the application book evidence that afterwards they had walked home to West Dubbo.  But the Crown did not lead from that witness the information which lay behind that, evidence which disclosed what was unquestionably an iron-clad alibi at trial, and accepted to be such on appeal.

At trial they put an argument to the court about the evidence of Mr Walford.  That argument appears at page 52 of the application book.  The argument was in short that there was still time after they parted company - that is to say Walford and the applicant - for the offence to have been committed.  There was no argument presented either at trial or on appeal in relation to the time of the assault, which was accepted on all sides to have been at about 11.30.

On appeal the Crown abandoned the argument which appears at pages 52 to 53.  The only point that they put on appeal was, in effect, that they were “not stuck with the evidence of Mr Walford”.  And in general terms we have no quarrel with the proposition that the Crown is not stuck with the evidence of a witness.  That is not the point of this case at all.  The point of this case is that the way the evidence emerged, in an evidentiary sense it was unchallenged, no argument was put either at trial or on appeal that the evidence was inherently unreliable or unreasonable, and in application of the principles enunciated in cases such as Precision Plastics, in our submission that should have led to a conclusion that the verdict was unsafe and unsatisfactory.

TOOHEY J:   Precision Plastics?

MR GAME:   Precision Plastics v Demir.

McHUGH J:That is a civil case, but all Sir Harry Gibbs said in that case was, if you do not cross-examine on evidence and it is not inherently unreliable, then it should be acted on.

MR GAME:   Well that is the point.

DAWSON J:   It may have been inherently unreliable.

MR GAME:   But, your Honour, no submission was put that it was inherently unreliable, (a) it is a changing of the case on appeal; (b) no submissions were put by the Crown upon appeal that it was inherently unreliable, and such submissions as have been put now are new submissions in substance, except with one minor exception.  The submissions that are put by the Crown in relation to an assertion that it may be unreliable are not submissions that were put below, and some of them are, with respect, quite unfounded, for example the suggestion that Walford might have been the co‑accused, may have been the co-offender; all that was lead to do was to show that he was unreliable because he nominated Walford in circumstances before he disclosed to the police that the other man had a hood on his head, that is to say it was clearly false in that assertion; there was no suggestion that Walford was the co-offender.

McHUGH J:This is not like Precision Plastics, where the evidence was uncontradicted.  In a real sense you have got Mr Wagg saying the accused is the man; he is the man that assaulted me.  And then add to that a statement that the accused said to Mr Walford, “Have the D’s seenyou?  Don’t give a statement”.  Why can the jury infer in all the circumstances that that was an admission by way of consciousness of guilt?

MR GAME:   Well that is the basis upon which that evidence was led, but it does not affect the quality of Walford’s evidence.

McHUGH J:Yes, but in the context of this case, the Crown called a witness and questions are put to him in cross-examination which, if accepted, might establish an alibi. Let it be assumed in your favour that it does, if it is accepted.  The question is, was the jury acting unreasonably in not accepting it.  They have got the evidence of the complainant.  He says that is the man that bashed me in the home, took my money; and then you have got Walford’s own evidence, which can be relied on as an admission.  How can you say the verdict is unsafe or unsatisfactory?

MR GAME:   Well, your Honour, in my submission, there is circularity in that reasoning, because ‑ ‑ ‑

McHUGH J:No, I am suggesting there is circularity in yours, because you start with the basis that the jury were bound to accept the alibi evidence.  And if you accept that, that is the end of the matter, you must succeed.  Now that is the whole point as to whether the jury were bound to accept what you would call the alibi evidence.

MR GAME:   Well, your Honour, in circumstances where it was never suggested to them that they should reject the evidence, the Crown put forward that witness as a witness of truth.  The Crown never put to the jury any submission that they should reject the evidence of Mr Walford.  They never said to the jury, “You should disbelieve this person”.  They never said to Mr Walford, “You should disbelieve the evidence”.

TOOHEY J:   They do not have to say that, do they?  The jury is free to, assuming it is acting reasonably, accept some aspects of a witness’s evidence and discount or reject other aspects of it.

MR GAME:   Your Honour, I would dispute that if the witness’s evidence is untested.  I mean, if the Crown did not accept what Mr Walford had to say about the alibi, they should not have called Mr Walford.

McHUGH J:   Why?  In an ordinary civil case you do not have to accept everything that is.....of your own witnesses.  I spent a fair part of my time at the civil bar calling witnesses in negligence cases and asking the jury to disregard half their evidence.  In fact that was the only way you could ever make a case against the Commissioner of Railways.  You would call in witnesses and ask the jury to reject most of it, except that part that showed negligence.

MR GAME:   But, your Honour, that is the reason for the rule in Browne v Dunn, is that the witness have an opportunity to respond, that the defence in the criminal trial have the opportunity to lead other evidence, and ‑ ‑ ‑

McHUGH J:But that is not, with respect, is it, because in this particular case this evidence is extracted by way of cross-examination.

MR GAME:   That does not change the quality of ‑ ‑ ‑

McHUGH J:Well, what is the Crown going to do?  Cross-examine their own witness?  They have then got to get leave.

MR GAME:   No, but the Crown did not take a case to the jury which was you should reject the alibi because of the identification.

McHUGH J:Well, we have not got the addresses reproduced and the atmosphere of the trial.  I mean, that is what makes appeals so unreal in many respects when one is talking about what happened at trials, how cases were fought; there is an atmosphere of trial that just cannot be reproduced in a ‑ ‑ ‑

MR GAME:   Your Honour, we do have the judge’s summary of what are described as the principal submissions put by defence counsel and the prosecutor, and on appeal it was accepted, and it is clear from the passage in the judgment of the Court of Criminal Appeal at page 74, it was accepted that there was no challenge made to the evidence of Mr Walford by the Crown.  The first time there was a challenge to the evidence of Mr Walford’s evidence was on appeal, presumably when counsel who appeared realised that there was nothing in the submission that the prosecutor had put, which I have already read out, which is at pages 52 and 53, about there still being time to commit the offence.  It was then that it was suggested that it was open to ‑ ‑ ‑

McHUGH J:But it must have been rejected at the trial.  The Crown prosecutor did not get up after the conclusion of Mr Walford’s evidence and say, “Well I withdraw the case”.  He prosecuted the case.  Surely that carried with it the implication they were not accepting Walford’s evidence, or to the extent that they did,it did not contradict their basic case that the accused was the guilty person.

MR GAME:   But, your Honour, in my submission there is a very strong element of unfairness in saying on appeal,in effect, reject this evidence, we invite rejection of this evidence, when the jury were never asked to consider the case on that basis.

TOOHEY J:   Is that right, Mr Game?  If you look at page 53 in the summing up and go to line 41, it is put in a rather somewhat different way to the way that is being discussed at the moment, but what is said is:

The Crown put to you why would the accused, if he is relying on Walford as an alibi witness, tell Walford not to make a statement to the detectives?

Now that is not a full frontal attack on Walford, that is true, on that aspect of his evidence.

MR GAME:   But that is part of the argument which is that there was still time afterwards and that the applicant was saying that, out of consciousness of guilt to Walford, but that is not an attack on Walford’s evidence; that is an attack on the applicant’s evidence.

TOOHEY J:   Well, implicitly it is, is it not?

MR GAME:   Not on Walford’s evidence.

TOOHEY J:   Are they not saying, well the defence relies upon what Walford said as constituting an alibi, but why would the accused tell Walford not to make a statement to the detectives?  Now certainly it could have gone further, if that is an accurate reflection of what the Crown said, but the implication is that the Crown is inviting you not to accept that aspect of Walford’s evidence.

MR GAME:   Well, in my submission, all that can be drawn from that is that the Crown is inviting rejection of what the applicant has to say about being with Walford at the time of the crime, not Walford’s evidence in relation to alibi.  They are two entirely different things, because one involves rejection of what the applicant has to say, but on the basis of acceptance of the Crown’s argument at 52 to 53, which was that there was still time afterwards to commit the crime.  The other involves what the Crown was forced to confront on appeal which was outright disbelief of what Walford had to say.  And there is simply no basis for saying that.  What was it about his evidence?  Did he give it badly or it was not tested; there was nothing inherently unlikely about what Walford had to say?  It has simply never been the subject of any test or challenge of any description.

TOOHEY J:   But if you look at the reality of the trial, if the Crown had not called Walford it would have been open to criticism, no doubt, as a material witness.  Walford is called, this evidence is extracted in cross‑examination, what is the Crown to do?  Apply to have him declared hostile?

MR GAME:   Well, your Honour, if the Crown did not accept what Walford had to say in relation to the alibi, in my submission the Crown should not have called on Walford.

McHUGH J:Well that cannot possibly be right.

MR GAME:   Well, in my submission, it must ‑ ‑ ‑

McHUGH J:Why could not the Crown say - the Crown could not have declared him hostile in relation to the alibi - but why could not the Crown say to the jury, do not accept him?

MR GAME:   Well they could have, your Honour, but they did not.

McHUGH J:Well I am suggesting to you that that is what the Crown said at least implicitly.  The Crown said that you could count on the reliability and accuracy of Wagg; that was their case, and if that was right that necessarily carried with it the rejection of the alibi evidence.

MR GAME:   But that is exactly what they did not do, your Honour; they precisely did not put their case in that way.  They sought to avoid the conflict between the two.  Now if that ‑ ‑ ‑

DAWSON J:   They did not, in fact.  I mean the conflict arose necessarily.  That is what is being put to you.

MR GAME:   Yes, but the Crown sought to avoid the conflict.

McHUGH J:They could avoid the conflict.  At page 53, at the bottom of the page, the trial judge says:

The Crown further put to you that clearly, this case rests insofar as the Crown is concerned, on the reliability and accuracy of Mr Wagg.  As he put it, the Crown case really “hinges” on Mr Wagg’s evidence.

Now if you accept Wagg it necessarily involved the rejection of the alibi.  So the fact, assuming it is the fact, that the Crown Prosecutor did not specifically say to the jury, “Well do not accept Walford”, it does not arise, does it?

MR GAME:   But your Honour, it depends very much on the circumstances of a particular case.  I mean, if you had a very strong Crown case and you had what appeared to be an iron-clad alibi, then whatever that witness had to say the Crown would not call that witness; it is an extreme case.  The Crown would say, that witness is a liar; the Crown would cross-examine that witness and produce a denial by that witness that the witness was lying.  The matter would be drawn into conflict.  Now this is a different sort of case.  This is a case where there is a weak identification and the Crown has called a witness to give some evidence of consciousness of guilt.  The Crown is confronted with what appears to be exculpatory alibi evidence.  The Crown chooses not to lead that evidence and one might assume that they did so because they were fearful of the consequences that it had for the Crown case; not that they did not accept it.  The Crown then says to the jury, look the situation is we have got the identification and we have got Mr Walford and the consciousness of guilt, why would he say otherwise, but look, on our case, there still must be time later on in the evening for the offence to have been committed.  That is the argument, and that is the only argument in my submission, which is put, and that is the proper construction to be made on those pages that have just been read from the summing up.

Now, that is entirely a consequence of some particular unsatisfactory features in the Crown case, and it is quite different from the situation which your Honour was alluding to, where you have strong Crown case here, strong alibi, clear conflict; that is just not what happened in this case.

McHUGH J:Yes, but you seem to be saying, well although the Crown case necessarily involved the rejection of Walford’s evidence about the alibi, and it did because the Crown said, well there is no clear evidence as to what particular time it was when they parted company, so the Crown made it quite plain that they were asking the jury to reject the Walford alibi evidence.  Your criticism is that they asked the jury to reject it on the wrong ground and therefore the whole trial is unsafe and unsatisfactory.

MR GAME:   No, your Honour.  My point is that one involves an attack on the credibility of Mr Walford and one does not.  The way in which the Crown put it involved no attack on the credibility of Walford.  It is just that, well you go across the road, then you go to the Western Hotel, then you walk down the street to Western Dubbo, well who can say what time it is; that is the argument that is being put there.  The submission that I put is that, in effect, the court was, in the circumstances in which if my construction of what occurred is accepted, that the court on appeal, conducting the factual exercise involved in determining whether or not it is unsafe and unsatisfactory, was in effect obliged to act upon the basis of an acceptance of the evidence of Mr Walford, that the argument having been abandoned about there still being time, that must have resulted in a finding that the verdict was unsafe and unsatisfactory.

The second basis upon which it is my submission special leave should be granted is that it is apparent from what appears in the judgment at page 74 over to 75, that the court itself has not conducted the assessment of the evidence of Mr Walford for itself; it has simply gone from saying, it was open to reject legally to dismissing the appeal, and therefore, in accordance with the decision of this Court in cases such as Morris, Palmer and M, the court has failed to conduct the independent assessment that is required of it.  Special leave should be granted for that purpose.                   

And the further point implicit in what I have put is what is the duty of a prosecutor in circumstances such as this where it seeks to illicit certain evidence, puts the case on a particular basis and then on appeal puts the case on a different basis.  Those are the matters that I seek to put in relation to the special leave application.

DAWSON J:   Thank you, Mr Game.  The Court need not trouble you, Mr Howie. 

Any appeal arising from this application would not enjoy sufficient prospect of success to warrant granting special leave to appeal.  Special leave is accordingly refused.

AT 12.10 PM THE MATTER WAS CONCLUDED