Robinson v The Queen

[2007] HCATrans 476

[2007] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B23 of 2007

B e t w e e n -

ALLAN NORMAN ROBINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 2007, AT 12.01 PM

Copyright in the High Court of Australia

MR R.J. CLUTTERBUCK:   May it please the Court, I appear for the applicant.  (instructed by Robertson O’Gorman)

MR M.J. COPLEY:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIRBY J:   Yes, Mr  Clutterbuck.

MR CLUTTERBUCK:   Your Honours, there is a preliminary matter and that relates to an application to amend.  I am not sure whether your Honours actually do have a copy of that documentation, but the application itself seeks to add to the notice seeking leave the particulars set out in paragraph 2(a) that state:

(a)The Trial Judge failed to instruct the jury on the need to consider and compare the actual evidence of voices recorded –

and that is where the balance of the paragraph picks up and continues as it was.  Your Honours, the other amendment sought is, of course, to ‑ ‑ ‑

KIRBY J:   I must admit, when I read the judge’s directions – because I sat in Domican in the Court of Criminal Appeal of New South Wales and was reversed, so one always reads those cases very, very carefully, and it is true, as you point our in your written submissions, that it is a very strong decision of this Court about the need for identification evidence warnings.  Then I read the warnings of the judge in this case and I must say to you, as my impression of reading them as one who has the Domican principle very clearly in mind, that they were very strong and very clear instructions to the jury about the dangers and miscarriages of justice that can arise from identification evidence.  So I do not quite see what the point that you are suggesting could have added to the instructions or what the judge said to the jury in this case.  It seemed a very strong direction to me.

MR CLUTTERBUCK:   Your Honour, on its face it certainly was and one simply cannot cavil with that.  However, the point that I am seeking to raise by way of amendment relates to the actual evidence itself.  You see, his Honour certainly gave very appropriate warnings insofar as identification evidence was concerned, but the evidence itself was not actually touched upon to the extent that there ought to have been a comparison as between the voice identification on the prerecord of the complainant and also the evidence obtained in a covert tape from the car.  Now, what his Honour, as I recall, did do was specifically refer to the tape, a recording of another witness called “Q” who was the lawful spouse of ‑ ‑ ‑

KIRBY J:   We should not refer to the name.  “Q” we will call her.

MR CLUTTERBUCK:   I am sorry.  Yes, your Honour.

KIRBY J:   I mean, the parents of the complainant gave very clear evidence (a) that it was the voice of their daughter and (b) that it was not the voice of Q. 

MR CLUTTERBUCK:   Indeed.

KIRBY J:   Then in the applicant’s case, Q, his wife, was not called to give evidence, so that how can it be suggested that there was not very strong evidence of identification both positive and negative which was before the jury which would have been very clearly in the mind of the jury.

MR CLUTTERBUCK:   Your Honour, the only response that I can make to your Honour is this, that exhibit 39, as I recall, was a transcript of a discussion between police officers and Q and that evidence to that extent was, as I understand it, before the jury.

KIRBY J:   I think part of that was recorded, was it not?

MR CLUTTERBUCK:   Yes, your Honour. 

KIRBY J:   And that recording was also before the jury, so they had the sound of Q’s voice as well as the sound of the voice of the female who was in the car who was suggested to be the complainant.  So the jury had both.  Now, what is your exact point?  That the judge gave general warnings but failed to bring them back to the particular evidence of the case?  Is that the point?

MR CLUTTERBUCK:   That is the point, your Honour, yes.

KIRBY J:   This is not a point that was raised at the trial.

MR CLUTTERBUCK:   That is the problem I have, your Honour.

KIRBY J:   How long did the trial last?

MR CLUTTERBUCK:   A matter of days.  I will just check, your Honour.  I cannot accurately tell you, but it was a number of days.  Seventeen witnesses were called, your Honour, and you will see at the very beginning of the transcript, particularly at application record 5, there is a history of the way the trial was conducted there.  The thrust of my submission, your Honour, is that, yes, I understand that there is a particular difficulty because these points were never raised or this particular point was not raised at trial.  It was a point that also was not raised in the Court of Appeal.

I think it was raised in an oblique sense in the Court of Appeal, but the authorities seem to suggest that of course there have to be exceptional circumstances and the only exceptional circumstance I can avert to is what I will be submitting ought be considered a miscarriage of justice if, in fact, the Court were of the conclusion that there ought to have been, by way of voice identification comparison, evidence of the complainant on two bases, the first basis being the complainant’s evidence taken at the prerecording and, secondly, the complainant’s evidence extracted from the motor vehicle, but otherwise I cannot take that point any further, your Honours.

KIRBY J:   Yes, thank you very much.

MR CLUTTERBUCK:   Yes.  The only remaining point, your Honours, relates to that which is referred to in my outline of submissions.  I ought to add, your Honour, we do abandon the second point which relates to lies.  So really all that needs to be considered by your Honours relates to the question of voice identification and the way the trial was conducted, particularly with respect to point 3.6 in my outline of submissions.  That relates to reference to during the course of the trial his Honour indicating:

“So you should consider the undoubted fact that [the parents] would be very familiar with the voice of their daughter –

Taking that in the circumstances of warnings that had to be given, in my submission, it was inappropriate and would have or could have detracted from the comprehensive warnings that were given in the case.

KIRBY J:   Yes.  Is that all you wish to say?

MR CLUTTERBUCK:   Thank you, your Honour.

KIRBY J:   Yes, thank you, Mr Clutterbuck.  Mr Copley, just on this new point that has been raised this morning in the suggested enlarged ground of the application, what is your attitude to the application to amend the grounds?

MR COPLEY:   The application is opposed.  The point was not one taken in the Court of Appeal.  There was no application made by an experienced defence counsel at the trial for a direction along the lines that it is now contended should have been given.  The particular complaint now is that his Honour the trial judge should have asked the jury to compare the voice of the person who the applicant admitted was eventually being raped in the car with the voice of the child at the prerecording hearing.

KIRBY J:   I understand the reasons for the opposition to the enlargement, but Gipp and other cases indicate that the Court – and especially we are dealing here with a person has been sentenced to life imprisonment – will normally examine – that was reversed on appeal, was it not?

MR COPLEY:   It was reduced to 18 years.

KIRBY J:   Yes.  But who suffered a very severe punishment for a very serious crime.  This Court has said that if the point is a legal point that has been overlooked it will consider that point whilst the matter is still alive in the judicial branch of government.  So it is raised here.  You can still make the points you have made as being reasons why the point was not seen in a trial which was conducted with some points specifically raised by defence counsel to be the subject of redirection a significant matter in the trial.  I would understand that submission.  But did the judge in addition to giving the very strong directions on identification that I have referred to, bring those directions back to the particular facts of this case?

MR COPLEY:   Yes, he did, at application book 15, line 20, his Honour informed the jury that they would not have with them in the jury room the tape of the prerecording evidence but the jury could have it played back, if they wished to, in the courtroom so that they could hear the complainant child’s voice again.

KIRBY J:   That is the matter that was argued in this Court in Gately.

MR COPLEY:   It was, and his approach would seem to accord perhaps with the approach this Court might tend to think is the proper one.

KIRBY J:   It accords with what the Court of Appeal of Queensland had earlier said before Gately.

MR COPLEY:   Yes.

KIRBY J:   But leave that aside, that is a side issue.  Now, what did he say about bringing his very strong directions on identity back to the particular case?

MR COPLEY:   He summed the case up in accordance with the way it was litigated.  The applicant’s case was that the voice on the rape tapes was the accused’s voice.  So again and again, and I will give your Honours the references in a moment, his Honour ‑ ‑ ‑

KIRBY J:   It eventually came down to a very narrow question, was it not?  The applicant’s defence was that the voice was that of his wife.  He admitted that whoever it was was being raped at the relevant time and the parents said it was their daughter and the jury also had the tape of the interview with the wife and she was of Chinese ethnicity and it was said by the parents that her voice was quite different and had a strong Chinese accent.

MR COPLEY:   That is so.

KIRBY J:   So it was really a relatively short point for the jury to decide, so long as they were properly directed to be very careful in identification evidence.

MR COPLEY:   They were.  But his Honour reminded the jury at application book 36, point 25 and again at application book 37, point 40 and at application book 38, point 10, about the importance of listening to the tape, exhibit 39, which was the tape of Q’s voice, because it was the applicant’s case that the voice that could be heard on listening device tapes was Q’s voice.  So that was the central and important thing for the jury to be considering because on the way the case was litigated, if they were satisfied that it was not Q’s voice, then it was the complainant’s voice.

KIRBY J:   I think I read that the judge accepted or acknowledged and drew to the attention of the jury that the tape of Q’s voice was a relatively short tape and was a bit indistinct and that they should allow for that fact.  Is that something that the judge said?

MR COPLEY:   Yes, it was something that his Honour said.  It is to be found at application book about page 35.

KIRBY J:   It is up the top of 35:

The case against the accused depends to a significant degree on the correctness of the two voice identifications of the accused . . . He alleges that the parents of the complainant are mistaken in their evidence that it was her voice they recognised on the tapes.  I have to warn you of the special need for caution before convicting in reliance on the correctness of identification evidence of that type. 

What is that type?  It is the type that is before the jury of the evidence of the two tapes.  Where does his Honour go on to say that you have to allow for the fact that the tape of Q is short and indistinct?

MR COPLEY:   Application book 37, line 20:

Now you should consider the quality of the tape-recording, the clarity of the voices, the extent to which there is things said on the tape, the indistinct parts of the tape, the acoustics.  Is the tape, having

regard to these various matters, sufficient to enable an accurate voice identification to be made?

KIRBY J:   Yes.  We do not need any more assistance from you, Mr Copley.  As usual you have been completely on top of your brief, which is what everybody should be.

MR COPLEY:   Thank you, your Honour.

KIRBY J:   Mr Clutterbuck, it does appear that the judge not only gave very strong directions of principle but in the passages referred to really did bring those directions back to the particular issue of the voice identification in this case.  What do you have to say in reply?

MR CLUTTERBUCK:   There is nothing I can say in reply to that, your Honour.  The documentation speaks for itself, except it was an interpretation that perhaps the Court could place on the documentation, but of course it was a matter for the jury at the time.  If I can perhaps just briefly go to application record 37 which is at about line 25.  His Honour refers to “Is the tape, having regard to these various matters” and these various matters are not identified, but “sufficient to enable an accurate voice identification to be made?”  That is the extent of my reply.

KIRBY J:   Yes, thank you very much, Mr Clutterbuck.  Thank you for your assistance to the Court.

MR CLUTTERBUCK:   Thank you.

KIRBY J:   At the beginning of the hearing of this application for special leave the applicant’s counsel made application to enlarge the particulars of the ground of appeal concerned with the warning of the dangers of voice identification.  The enlargement sought to add to the particulars of the miscarriage of justice, of which the applicant complains, that the learned trial judge had failed to instruct the jury on the need to consider and compare the actual evidence of the voices recorded. 

The application was opposed by counsel for the prosecution.  The opposition was based on the fact that the point had not been reserved at trial nor specifically argued in the Court of Appeal.  However, we are inclined to grant leave to the applicant to amend the particulars in the manner set out in the amended application for special leave to appeal.  We have dealt with the application on the footing that the amended application is now before us.

On questions of identification evidence this Court has established a requirement of rigorous judicial warnings to a jury.  See especially Domican v The Queen (1992) 173 CLR 555 at 565-566. It has also required clear directions to a jury on the use that they may make of lies on the part of the accused if they come to that conclusion. See Zoneff v The Queen (2000) 200 CLR 234.

We are not convinced that the trial judge in this case erred in the directions he gave to the appellant’s jury on either of these issues.  His directions to the jury were clear and conformed with authority.  In particular, when regard is had to the passages in the summing up at page 37 of the application book, it is plain that the judge of trial in the District Court of Queensland (Judge Wall), not only directed the jury in accordance with the correct principles, as established by this Court, but also assisted the jury with specific instruction on the way in which those principles were to be applied by reference to the particular issue of voice identification.  In fact, we regard the directions that were given by Judge Wall as impeccable and a model of their kind. 

It was open to the jury to conclude beyond reasonable doubt that the female voice recorded at the time of the offences was that of the complainant and not, as the applicant alleged, that of his wife.  The complainant’s parents so identified it.  They said that the recorded voice did not sound anything like the wife’s voice, which had a Chinese accent.  The wife did not give evidence in the trial.  The jury heard the recording.  They also had a recording of an interview by police with the applicant’s wife.  In addition, they had the instructions to which I have earlier referred. 

There is no prospect that an appeal would succeed in this case.  We are unconvinced that there has been a miscarriage of justice.  Special leave is accordingly refused. 

The Court will now adjourn to reconstitute for the three remaining applications.

AT 12.22 PM THE MATTER WAS CONCLUDED