Robertson v The Queen; Knight v The Queen; Williams v The Queen

[2015] HCATrans 326

[2015] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B11 of 2015

B e t w e e n -

WAYNE THOMAS ROBERTSON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane   No B12 of 2015

B e t w e e n -

MARK DEMPSEY KNIGHT

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane   No B13 of 2015

B e t w e e n -

WESLEY ROBERT WILLIAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 DECEMBER 2015, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR P.J. DAVIS, QC:   If it please the Court, I appear with MR D.R. LYNCH for the applicants.  (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC:   May it please the Court, I appear with MR J. ROBSON on behalf of the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Yes, Mr Davis.

MR DAVIS:   Your Honours, the application concerns the proper construction and application of section 93B of the Evidence Act.  The test for admissibility of statements by a deceased person is not in issue, of course, because that is statutorily provided by the section itself.  What is in issue, in our submission, is what on a proper construction of section 93B is relevant to the statutory test?  In other words, what are, to go to section 93B, relevant to the circumstances in which the statement was made making it unlikely - its representation is a fabrication, or circumstances in which the statement was made making it highly probable the representation was reliable?

Our submission is this, that if there is evidence which shows that it is unlikely that the representation is true, or if there is evidence suggesting the representation was not made, then that is admissible on the inquiry by the trial judge under section 93B as to admissibility.  This is because, we submit, that such factors relate to the circumstances in which the representation was made.

So if there is evidence of the general unreliability of the representation, we submit that the representation is then made in the circumstances of the evidence of that unreliability.  Therefore, the representation is not, in our submission, unlikely to be a fabrication and similarly it is not likely to be reliable. 

Your Honours, can we give this example?  If a deceased tells the witness – obviously he is not deceased when he is speaking to the witness, but if the deceased tells the witness that on 1 January 2015 he saw the accused in Brisbane and there is irrefutable evidence that the accused on that day was in Melbourne, then we would submit that the circumstances in which the representation was made would clearly be relevant. 

BELL J:   How is that so?  Mr Davis, how are the circumstances in which the representation was made affected by evidence that casts doubt on the reliability of the fact asserted?

MR DAVIS:   Your Honour, our submission is that the circumstances in which the representation was made are identified by the statute because the statute also concerns the reliability of the representation.  So our submission is that ‑ ‑ ‑

BELL J:   Well, there are two parts to it, are there not?

MR DAVIS:   Yes, your Honour.

BELL J:   There is subsection (2)(a) which is concerned with “circumstances making it unlikely the representation is a fabrication”, and subsection (2)(b) which directs attention to whether the circumstances make it “highly probable the representation is reliable”.

MR DAVIS:   Yes, your Honour, and both those subsections certainly relate back to the question of the circumstances of the making of the statement.  But, in our submission, if there is evidence that the representation is unreliable, we submit that is relevant to the circumstances in which the representation was made.  So if, for instance, a representation is made on a particular day at a particular place and there is very strong evidence that the representation is not true, then, in our submission, the fact that that evidence as to the representation being untrue are part of the circumstances in which it is made.

KIEFEL J:   But that would not go to the question of admissibility under 93B.  It would go to the weight of the evidence, would it not?

MR DAVIS:   Well, in our submission, not.  In our submission, once the judge undertakes the relevant examination of the evidence and then admits the evidence, or if his or her Honour admitted the evidence, then issues which may go to the admissibility under 93B(2) may also go to the reliability of the evidence for the purposes of the jury’s consideration.  But, in our submission, that would not mean that those circumstances are not relevant, or that evidence is not relevant to the circumstances in which the representation is made.  This is why, in our submission, there is confusion at the level of intermediate courts of appeal as to the admissibility of statements by the deceased retracting representations that have been made.

BELL J:   When you say there is confusion on that topic at the level of the intermediate courts of appeal, following the decision of the New South Wales court in Ambrosoli, do you point to an inconsistent intermediate appellate court decision on that topic?  I think in Ambrosoli, President Mason acknowledged that the circumstance that there was a subsequent retraction might relevantly bear on admissibility, but his Honour in other respects endorsed the approach earlier taken by Justice Sperling in Mankotia that the focus is on the circumstances of the making of the representation.

MR DAVIS:   Yes.  In Williams, for instance – I am not trying to avoid your Honour’s question – but in Williams (2000) 119 A Crim R 490, in that case Ambrosoli was followed.  I am sorry, I beg your pardon, could I take your Honours to Ambrosoli 55 NSWLR 603 at 36? Your Honours will see there that what has actually occurred is that President Mason, in our submission, has really aligned with the view in Mankotia but has allowed the exception in relation to retractions, not so much on a question of principle that his Honour has identified, but more out of respect to this Court’s decision in Australian Securities Commission v Marlborough Gold Mines. 

So really what his Honour has done is to follow Conway and Williams more than resolve the difficulty which is caused by the fact that if one construes the section so that it is only the factual circumstances surrounding the actual making of the representation, it is then very difficult as a matter of principle, in our submission, to then see how or why later retractions are admissible, or evidence of ‑ ‑ ‑

KIEFEL J:   But in Ambrosoli, the President said that later statements were only admissible and relevant to the extent that they touched the reliability of the circumstances of the making.  So they had to in some way throw light on the circumstances in which it was made which is the question posed by 93B(2)(b).

MR DAVIS:   Yes, but, in our respectful submission, that then tends still to beg the question, and the question then is what is the width or scope of evidence which is relevant to the circumstances in which the representation was made. 

BELL J:   To the extent that you seek to widen the test beyond that stated in Ambrosoli, it would have the consequence, would it not, that on the voir dire all evidence bearing on the ultimate issue of the acceptance or otherwise of the representation would be relevant?

MR DAVIS:   Your Honour, we would have to concede that it would widen the scope.  Whether in a particular case the voir dire would encompass all such evidence would be a case‑by‑case proposition.

BELL J:   How do you identify the principle in any way that would place a limitation short of all the evidence that might bear on the ultimate determination of the reliability of the asserted fact?

MR DAVIS:   The question would be, in our submission, the extent to which in a particular case all that evidence would be admissible on the question of the reliability of the statement.  Now, your Honours, one consequence of Ambrosoli, for instance, is that there does not seem to be scope in section 93B for any examination of the creditworthiness of the person to whom the statement has been made.

Now, in our submission, that is a pertinent point in relation to the present case.  Can we take your Honours to application book 273; this is in the judgment of the Court of Appeal.  If your Honours go to paragraphs [26] and [27] on that page for me, please, and you will see that in this passage the Court of Appeal is dealing with the evidence of the prisoner, McIlwain, to whom representations were made, and if your Honours look at paragraph [27] the upshot of all that is that Mr McIlwain was not in 8 Block at the time he says the representation was made to him.

So there is the circumstance where the attack by the defence on the voir dire would be upon the credit of the person to whom the representation had been made.  Now, in our submission, that must go to the circumstances in which the representation was made.  These are the difficulties which arise, in our submission, when ‑ ‑ ‑

BELL J:   Mr Davis, how – just looking at subsection (2)(b) – can the credibility of the person to whom the representation is made bear on whether or not it is highly probable that the representation is reliable?

MR DAVIS:   Because one must look at the circumstances in which the representation was made.  Now, the circumstances in which the representation was made, in our submission, must also at least to some extent involve an examination of the probity of the evidence that the representation was made.

KIEFEL J:   But what you are really saying is that at this point there should be a question about whether or not the representation was made at all, whereas for admissibility under section 93B the test is really whether the circumstances put forward for the basis for admissibility are such that make it probable, leaving it at a later point for the evidence to be tested as to whether the statements were made at all, and whether they are reliable.

MR DAVIS:   Your Honour, in our submission, within the investigation as to whether they were made in circumstances where they were reliable must be some inquiry as to whether or not the representation was made at all.  So if, for instance, one had a situation where the person to whom the representation was made said that a representation was made on 1 January 2015 in Brisbane and there was irrefutable evidence that the deceased person was in Melbourne, surely, in our submission, the fact that the deceased person was in Melbourne and could not possibly have made the representation is a circumstance relevant to the making of the representation.

KIEFEL J:   But are you not using a test of admissibility as more than the gateway into reception of evidence, you are converting it into the whole inquiry as to the value of the evidence?

MR DAVIS:   Your Honour, we say not, but we also submit that an investigation into the quality of evidence, as a preliminary point concerning admissibility, is not something which is foreign to the criminal law.  The Christie discretion depends upon that. 

BELL J:   But we are not looking at considerations of that character, we are looking at the statutory test.

MR DAVIS:   Yes, your Honour, I appreciate that.

BELL J:   For example, look at subsection (2)(c):

at the time it was made, [the representation was] against the interests of the person who made it.

How relevantly does the credibility of the person to whom it was made bear on that determination?

MR DAVIS:   Well, in most cases one would think that it would not.  But the question here, if one looks at the evidence of McIlwain, for instance, McIlwain says the representation was made at a time when he was with the deceased when he simply was not.  Now, in our submission, that must be one of the circumstances relevant to whether or not the representation has been made in circumstances where it is reliable, et cetera.  Your Honours, we have explained our submissions in some more depth in our written outline.  That was the extent to which we intended to supplement the oral submissions.

KIEFEL J:   Yes, thank you, Mr Davis. 

In our view there is no reason to doubt the correctness of the decision below.  Special leave is refused.

AT 9.48 AM THE MATTER WAS CONCLUDED