Roddan v The Queen

[1999] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P42 of 1998

B e t w e e n -

LINDSAY GORDON RODDAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 10.20 AM

Copyright in the High Court of Australia

MR R. BOURKE:   I appear for the applicant, Mr Roddan.  (instructed by Melasecca Zayler)

MR R.E. COCK, QC:   With my learned friend, MR S. VANDONGEN, I represent the respondent.  (instructed by the Director of Public Prosecutions for Western Australia)

GLEESON CJ:   Yes, Mr Bourke.

MR BOURKE:   If I can commence by addressing the first point raised in the outline of argument, that is the Ahern direction and its interface with the corroboration warning.  I do not wish to be seen to be taking a backward step from the word go, but it is conceded that this application is not unattended by difficulties in terms of the history of the matter coming before this Court.  It was not argued before the trial judge and was argued in a tangential way before the Court of Appeal, but it is submitted that nevertheless the point is strongly raised on the facts and the way in which the judge charged the jury in this case, it is a solid point for the Court to look and an important one to determine which will have implications throughout each jurisdiction in Australia.

The point is effectively this, that the combination of the traditional Ahern or Tripodi-type direction, that is to look at the acts and utterances of co-conspirators as evidence against the accused combined with the accomplice warning to look for independent corroboration has in its current form the unfortunate effect of suggesting that those acts and utterances of the co-conspirator are corroborative of the account of a conspirator accomplice who gives evidence.  That was the case in this case, of course, where the two other conspirators, Lynette and Barry Crimmins, gave evidence on behalf of the Crown.

GLEESON CJ:   Where do we find the direction of which you complain?

MR BOURKE:   The direction appears at page 61 of the application book.  It appeared at the very end of his Honour’s charge, indeed the morning following the jury retiring.  His Honour had not, initially, given an Ahern direction at all.  Prosecuting counsel brought that to his attention in the afternoon.  He reviewed the transcript, discovered that he had not given the Ahern direction and then proceeded to give a direction the following morning, and then the jury retired, once again.  If I could take your Honours to the last paragraph at about line 36 of the learned trial judge’s charge:

So if you are able to find that a conspiracy exists then you can use what Mr and Mrs Crimmins have said or done pursuant to that conspiracy as evidence against Mr Roddan, but bear in mind what I have told you and it doesn’t in any way detract from the warning that I gave you yesterday about their being accomplices and the need to find corroborating evidence of their words or statements or actions and –

if you cannot find “corroboration” then “it would be dangerous” to convict on the uncorroborated evidence.

GLEESON CJ:   What is your complaint about that?

MR BOURKE:   If I can put the complaint in terms of an example from the facts of this case, that is, addressing count (2) of the case where it was said that Lynette Crimmins approached Mrs Anderson and said, “Join a conspiracy with me and Mr Roddan by getting your husband to steal diamonds”.  The effect of this direction, if I match that to those facts, is to invite the jury to accept the evidence of Lynette Crimmins having actually approached Mrs Anderson and used Mr Roddan’s name as acts and utterances of a co-conspirator and therefore being capable of ‑ ‑ ‑

GLEESON CJ:   If they have already found that a conspiracy exists.  That is the first step.

MR BOURKE:   Yes, there would have been no difficulty with getting over the Ahern threshold step of prima facie evidence of a conspiracy because the two co-conspirators gave direct evidence of it.  There could be no complaint - - -

KIRBY J:   That is correctly put at 61, line 26.

MR BOURKE:  

If you are satisfied that a conspiracy existed between…..then once you have been able to decide that ‑ ‑ ‑

KIRBY J:   That is correct.

MR BOURKE:   Yes.  The learned trial judge would have to come to the position that there was prima facie or reasonable evidence of the conspiracy, which there clearly was, given the direct evidence of the co‑conspirators, so, that is not really where the problem arose but it cannot be a case of the jury having been satisfied beyond reasonable doubt that a conspiracy existed before looking at the acts and utterances, obviously.

GLEESON CJ:   Where is the error in the paragraph on the bottom of page 61?

MR BOURKE:   The error is not so much in that it represents an error of application of either the Ahern direction or the corroboration warning but rather that when the two are melded in this way they create an invitation to the jury to regard the evidence that Lynette Crimmins approached Mrs Anderson as being corroborative of Lynette Crimmins’ own evidence that she - - -

GLEESON CJ:   I do not see that at the moment.  He tells them that they have got to find corroboration.

MR BOURKE:   Yes, and the corroboration was the evidence of Mrs Anderson that she was indeed approached by Lynette Crimmins and that Lynette Crimmins did indeed use Lindsay Roddan’s name.  Independent evidence confirmed that Lynette Crimmins had conducted these acts and utterances in the absence of the accused. 

GLEESON CJ:   Just at the moment I have trouble seeing an error in that but what the Court of Appeal say about it?

MR BOURKE:   The Court of Appeal addressed the matter by saying, at application book 107, that they accepted that the Ahern direction, if it were an important matter in the trial, was inadequate but stated that it was not an important matter in this trial.  The principal evidence was the direct evidence of the two co-conspirators.

GLEESON CJ:   Do you say we see this at page 107?

MR BOURKE:   Yes, your Honour, at about line 4, or, indeed, commencing from the top of the page:

The redirection actually given to the jury would not have been of assistance to them because it did not say how they could use the acts and words of Mr and Mrs Crimmins and it did not refer to the acts and words outside the direct evidence.  However, I do not consider it caused any prejudice and did not cause the trial to miscarry. 

Their Honours go on to say that because it did not detract from the hearsay warning - and this was really a case about determining the truth of what the two co-conspirators had said in evidence.

GLEESON CJ:   Was there a complaint about this direction at the trial?

MR BOURKE:   No, there was not.  There was not a complaint about any of the charge at the trial and that is why ‑ ‑ ‑

GLEESON CJ:   I only asked about this.  Was there a complaint about this point?

MR BOURKE:   No.  No, there was not.

GLEESON CJ:   That is often a fair indication that the point was not regarded as being very significant.

MR BOURKE:   It can be, yes.  That is why I say that this is an application not unaccompanied by difficulty.  One of the grounds your Honours will have seen before the Court of Appeal was initially started as an incompetence of counsel and then was transferred to a ground of inadequacy of preparation because of the bulk of material in the matter and it was heavily litigated before the Court of Appeal that there were no exceptions taken to any of the charge, and indeed, no objections to evidence at all throughout the trial.

KIRBY J:   That is not before us, is it?

MR BOURKE:   No, that is not and I certainly do not seek to reopen that.

KIRBY J:   No.  Which was the count on which there was a majority verdict?

MR BOURKE:   Count (2) which is the count I used the example of which was the approach to Mrs Anderson.  That was the count that the jury also sought to have the evidence of Mrs and Mr Anderson read to them afresh.

KIRBY J:   Yes.

MR BOURKE:   Even without that it was obviously a live matter.  His Honour quite properly directed the jury in relation to the importance of looking for independent corroboration but what is submitted is that evidence of what a co-conspirator does cannot corroborate that co‑conspirator so that if Lynette Crimmins say, “I was in a conspiracy with Mr Roddan to approach Mrs Anderson to become involved in the diamond thefts ‑ ‑ ‑

GLEESON CJ:   I do not see where he told them that they could corroborate themselves.

MR BOURKE:   He did not tell them that in specific terms.  He did not tell them that in specific terms.

GLEESON CJ:   Did he tell them what corroboration was?

MR BOURKE:   He did and went through a standard and unobjectionable corroboration warning.

GLEESON CJ:   The standard corroboration warning conveys the information that you cannot corroborate yourself, does it not?

MR BOURKE:   It indicates, and this is at page 18 of the application book, that one must look for independent evidence of corroboration.

GLEESON CJ:   With the emphasis on the word “independent”.

MR BOURKE:   Yes, of course, but that is where the difficulty arises with the words used at page 61 of his Honour’s charge.  His Honour says you can use the acts and utterances of the co-conspirators but look for corroboration of their acts and utterances.

KIRBY J:   He then went on to remind them to remember what he had told them yesterday, in respect of corroboration.

MR BOURKE:   Yes, but it submitted, though, that the effect of that last paragraph is an invitation to treat the confirmation of the acts and utterances of Mrs Crimmins outside the presence of Mr Roddan as corroboration of Mrs Crimmins’ evidence.

GLEESON CJ:   That would be contrary to what he told them on page 18, line 45.

MR BOURKE:   In terms of independent evidence.  It would be contrary to a lawyer’s understanding of what independent evidence amounted to, that is, evidence arising independently of the witness, but the evidence of Mrs Anderson does, in a sense – and it is submitted that the words at page 61 invite this interpretation – does arise independently.  It is Mrs Anderson giving evidence of what she saw of the acts and utterances of a co-conspirator and the acts and utterances of a co-conspirator can be used against Mr Roddan.  It is to be remembered that this was a direction which appeared on its own the following morning after the bulk of the charge had been given and his Honour indicated that this was something that he had left out, accidentally, he had “omitted to tell” the jury, and that added extra force to it.

If it had sat in the midst of the corroboration warning at page 18, one might have expected his Honour to say when dealing with it specifically, “And the evidence of Mrs Anderson does not amount to corroboration because that arises from Lynette Crimmins , in any event”.  Now, I might say, your Honours, that the applicant’s outline of argument assumes the correctness of that position that this material is not corroborative of Lynette Crimmins, but at paragraph 11 of the respondent’s argument it appears that the Crown takes issue with and says that this evidence would in fact be corroborative.  It may be that in the end that provides more fertile ground for debate for this application that if what is assumed by the applicant is wrong, or potentially wrong, then that really is a matter that needs to be resolved.

KIRBY J:   You are seeking special leave on a matter which was not reserved at the trial, was not argued in the Court of Criminal Appeal, was not even in your application to this Court but which might provide fertile ground if only you can get into the Court and argue completely afresh.  That does not seem a very promising prospect.

MR BOURKE:   No, I accept that, your Honour.  It has always been assumed throughout, by the applicant, that that material is not capable of being corroboration.  Now, if we are wrong about that then it is a very different kettle of fish.  But, if I might say that point was not taken in the Court of Appeal and whilst the specifics of the ground before your Honours, that is the interface between the Ahern direction and the corroboration warning were not before the Court of Appeal, a number of the grounds were argued together before the Court of Appeal and the point was raised that the directions of his Honour may have had the effect of leaving the jury with the impression that the evidence of witnesses like Anderson and Rokich were corroborative of the Crimmins’ account, so to that extent the matter was raised before the Court of Appeal though not in the precise form that it is raised now, but that issue of whether in fact it would lawfully amount to corroboration I accept what your Honour says, and that is correct, that is a matter that was it the correctness of was assumed.

The question, it is submitted is, albeit its chequered history in terms of not being well litigated in the courts below and denying the High Court the opportunity of that, nevertheless raised in such a precise form by his Honour’s direction and by the facts in this case which provide a range of different forms of acts and utterances by the co-accused that it does represent a useful vehicle and an opportunity for this Court to take to deal with this matter and determine how the evidence of co-conspirators when they are giving evidence, either on their own account or for the Crown, is to be dealt with in regards to corroboration by the acts in furtherance they performed while the conspiracy was said to be on foot.

So, it is submitted, that notwithstanding those deficits, in terms of a number of traditional indicia of special leave, it is still worthy of a grant of special leave and a useful vehicle for the Court to determine that matter. 

If I can address, then, the second point which is the issue of the hearsay direction.  The submission is, and it has to be put in fairly bold terms, that his Honour’s direction on hearsay was simply inadequate and, with the greatest respect, was prone to mislead a jury.  The point was raised directly before the Court of Appeal who found that it was a case of using homely examples that the jury could come to terms with, but, with the greatest respect to the Court of Appeal, it is submitted that an analysis of what his Honour at the trial said to the jury could only serve to confuse.  It is a direction which could only be understood by a person who already had a comfortable understanding of what hearsay was.

It could never be suggested that the Court of Appeal or indeed the learned trial judge did not understand what hearsay was or that there was an error of principle in that form.  What is submitted is that the margin for error which must be allowed trial judges in explaining things in human terms to juries has been far exceeded in this case and the Court of Appeal erred in failing to identify the real danger of that hearsay direction, given its misleading contents.

KIRBY J:   Where is the direction?

MR BOURKE:   The direction as to hearsay is to be found principally at application book 5, though there was also was one reference during the trial which is found at 1d of the application book.  Out of those directions there are ‑ ‑ ‑

KIRBY J:   Where is the particular passage that you ‑ ‑ ‑

MR BOURKE:   If I could take your Honour to page 5 which forms part of the charge.  The first full paragraph at about line 7 contains the line, and this is a concept that is repeated throughout the direction:

The only person who can say whether they said something or they did not say something is the person who said it.

Now, that is clearly not a reference to hearsay.  The following sentence starting with:

So when a person talks about –

is accurate, but, then the following paragraph starting at line 14 gives an example and it is to be expected that the jury will grasp an example to assist them in interpreting a legal concept that has been explained fairly readily, but an example of a matter which is simply not hearsay, that is, that the only person who could actually say they have been a full forward of the West Coast Eagles is that full forward and it confuses the concepts of direct evidence of observation and the evidence of the fact of utterances as opposed to their contents.

GLEESON CJ:   But all he is saying to the jury is if the only person whose word you have for it that somebody is the full forward for the Eagles is me then you have got no evidence of it.

MR BOURKE:   But that, your Honour, it is submitted, is not correct.  I am qualified to give sworn evidence that Scott Cummings is the full forward of the West Coast Eagles because I have seen them play, and, that contains no hearsay content whatsoever.  That is where the mischief arises, it is submitted.

GLEESON CJ:   You have got to consider the example in the context of everything he said on that page.

MR BOURKE:   Yes, I agree with that but the example is critical because the jury are having explained to them what is a vexed legal concept and to give the legal description of it with those two contradictory statements in the paragraph before, that is:

The only person who can say whether they said something or they did not say something is the person who said it.

Which is not hearsay, followed by this ‑ ‑ ‑

GLEESON CJ:   But when he went on to apply that to the actual evidence in the case, did he make any error?

MR BOURKE:   He applies it in respect of Mr Horovitz but the evidence in respect of Mr Horovitz, there is no error directly in the sense that the evidence of Mr Horovitz was not even used as evidence of matters stated by Mr Horovitz but rather the response of the accused to the suggestion that Mr Horovitz had said certain things.  So, it was in a very different category to the bulk of the hearsay material in the case which was concerned with the utterances being made and the possibility the jury might take them as proof of their contents.  So, the Horovitz example is not an example which applies to the bulk of the evidence in the case.  It is principally correct, but then, again, at line 34, his Honour said:

The only person who can tell you what Mr Horovitz said is Mr Horovitz.

Again, there is that confusion around observations, evidence of facts stated and proof of the contents.  But, if it were a complaint about that paragraph in relation to its direction as to Mr Horovitz there would be no complaint, it is, on the whole, correct.  But, the problem with that is that whilst it is

correct it does not apply to the bulk of the hearsay evidence, it is a different type of concern. 

There is then the final paragraph which refers to the “CRA report” and his Honour in the last full sentence on page 5 does indeed give an entirely correct direction in relation to hearsay, but the point which is taken is that there should be a minimum standard of correctness.  The confusion which arises in this hearsay direction is simply too dangerous and the Court of Appeal erred in failing to identify that danger.

KIRBY J:   How long did this trial last?

MR BOURKE:   The trial went for about three weeks, in the end.  There were a number of interruptions, there were funerals and that sort of thing.

KIRBY J:   And, was there an objection to this passage of his Honour’s charge?

MR BOURKE:   No, your Honour, there was not.  I do not propose to submit any further oral argument in respect of the third matter raised by the outline of argument, it is a matter simply stated in the outline and it is not going to get any better for me reading it out, so, unless there are any other matters?

GLEESON CJ:   Thank you, Mr Bourke.  We do not need to hear you, Mr Cock.

GLEESON CJ:   The Court is of the view that there are insufficient prospects of the success of any appeal to warrant a grant of special leave to appeal.  The application is dismissed.

We will adjourn for a short time to reconstitute.

AT 10.40 AM THE MATTER WAS CONCLUDED