Salmon v The Queen

[2004] HCATrans 250

[2004] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B22 of 2003

B e t w e e n -

BRAD KYM SALMON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 3.14 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the applicant.  (instructed by Ryan and Bosscher Lawyers)

MR B.G. CAMPBELL:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, we need, firstly, an extension of time.  I understand my friend is not opposing that.

KIRBY J:   Yes.  Is that correct, Mr Campbell, you do not oppose.

MR CAMPBELL:   Yes, it is.  Thank you, your Honour.

KIRBY J:   You have that extension.

MR BYRNE:   Thank you, your Honour.  Your Honours, the applicant in the present matter was placed on trial for murder.  During the course of his trial for that offence inadmissible evidence as to his prior criminal history went before the jury.  That, particularly, insofar as the circumstances of this application are concerned, is attenuated by the fact that leave was required by the trial judge and the trial judge, because of the appreciation of the relevant statute law by all those engaged in the trial, indicated that were his leave required he would not have given it and so we have the situation where it is plain before this Court that we know what the situation that should, and indeed, would have prevailed had the relevant trial taken place in accordance with what the law was. 

HAYNE J:   And the importance of Matusevich is, I would have thought, evident and a principle to be maintained.

MR BYRNE:   Quite so.

HAYNE J:   But at the end of the day what prospect does Mr Salmon have of demonstrating that it is arguable there has been some miscarriage.  The case against him was very strong, was it not?

MR BYRNE:   There is no doubt the case against him was strong and we do not shrink from that, but what was allowed to happen in the course of the trial was that when he was in a practical position required to give evidence because of the, if you like, cutthroat defence run by him and his co-accused, he was entitled at that point to expect the protection of the law.  He did not get it.  Cross‑examining counsel for, not the Crown, but for co-accused was able to make hay, wrongly, with this matter, such that the applicant’s credit and, indeed, his story was effectively destroyed.  In our submission, that should not ‑ ‑ ‑

HAYNE J:   There were the difficulties about finding the weapon and there were other rather considerable difficulties.

KIRBY J:   The blood test and the knife that was found at his home.

MR BYRNE:   It was found at the place of employment, I believe.

KIRBY J:   You are right, the place of employment.  There was also the fact that he had a shortage of funds and there was the unexplained replenishment of his funds and then there was the video of the video shop.  It was a very powerful case. 

MR BYRNE:   And because of that powerful case, he had given a number of explanations to police, some of which under oath he said were false.  His final explanation places him there, gives if you like an explanation for those features of the case which are then used against him, but what he is deprived of in answering ‑ ‑ ‑

HAYNE J:   Remind me of what his explanation is, in short.  He says he is there and what is the nub of his explanation?

MR BYRNE:   That the attack, contrary to his expectation and knowledge, was carried out by the co-accused.  He then gets in the car with the co‑accused, the car is taken back, the knife is left there and he accepts he was given money by the co‑accused, but what he was deprived of is the right for the jury to correctly and in an unbiased fashion assess that account under oath because the jury were allowed to hear the inadmissible evidence as to his prior convictions and the acute unfairness where there was a cutthroat defence being run, as your Honours would have seen from the records - the Crown had actually applied to cross-examine the co‑accused on his prior convictions which relevantly included, if you like, a burglary, a break-in of premises and committing an indictable offence.

That was properly stopped by the trial judge so the jury then coming to consider the fingers pointing both ways is left with a person protected by the law and a person who very much needed the strict protection of the law and who was deprived of it.  That is one of the reasons why we say Matusevich is important both in principle and in application. 

We go on to say that the added disadvantage suffered by the applicant here was that the other, we say, mandatory requirement in the judgments in that case were that the jury must be told as to the use to be made of such evidence if it were to be admitted properly.  Here our primary point is it was improperly admitted, but once in, the jury were entitled to be directed as to its use.

What happened then in the Court of Appeal was that two of the members of the Court of Appeal appeared to say that because that was not done, then, therefore, by reasoning it was not an important point in the trial, therefore the proviso is able to be applied.  What Justice Jerrard said was that it was not even necessary for a direction to be given and we say, with great respect, that is heresy in terms of Matusevich.  We note, in passing, that my friend in paragraph 3.6 of the written outline puts that forward as a positive proposition in this Court, that no direction was required as to the use to be made of the evidence which was improperly admitted.

The jury then was left in a position where the applicant has had evidence wrongly admitted against him.  His co-accused has been protected from that.  They are not given directions as to what use is to be made of that and the applicant, therefore, did not have a trial according to law.  The test for the application of the proviso is whether he may have lost a chance, otherwise open to him, of an acquittal.  We submit here that that was a real possibility given the nature of the evidence that came in, the use that was made of it and the absence of any direction to the jury as to how or why they should use that evidence in the course of their deliberations. 

HAYNE J:   At page 83 in Justice Jerrard’s judgment, in paragraph [59], his Honour gives a number of bullet points.  The second last of them is a reference to the account which each of the two accused gave in evidence of the events.  Two questions:  one, is that a short but accurate account of the way in which the accused’s evidence ran; and, second, what does that say about co-offenders acting in concert, that is, what conclusion about complicity does one draw?

MR BYRNE:   To answer your Honour’s two questions, the first, so far as that goes, is accurate.  What it does not set out, and one could not expect his Honour to do that in the course of a bullet point, but what it does not go in to is the applicant’s explanation for that otherwise unusual conduct was that this came upon him in an unexpected way, the deceased was someone known to the co-accused, not to him, the deceased being attacked by the co‑accused, threats were made against him to the extent that “triads were involved” and if the applicant was to speak, leave or do anything, his family and him would be killed.  That is again a general summary in answer to your Honour’s question.

That again is a crucial part of the what the jury were entitled to assess, unaffected by the inadmissible evidence that was admitted against him because it became crucial that he was painted as someone who, from a very early age, had convictions for dishonesty, then had given dishonest

accounts to the police and somehow that was linked to his career as a very successful salesperson as to be able to sell himself and, to quote the co‑accused’s counsel, “back himself against the co-accused” because of his ability to be not just a liar, but a good liar.  That is the picture that was wrongly, I say, painted to the jury to allow them to assess critically what your Honour Justice Hayne puts to me, his version as to why he would react in that way.  The jury were prevented, wrongly, from assessing that in the appropriate light and in the absence of being tainted by previous convictions for dishonesty. 

The Court of Appeal should, in my submission, have approached the matter that this was an error of substance not of form and reaching that hurdle, looked to whether the proviso could be applied firstly in those circumstances.  A relevant factor to that was that no warnings, no directions, no assistance was given to the jury as to what they were to do with this and rather than use that as some basis for saying it must have been unimportant in the trial, therefore the other strong evidence leads inevitably to a conviction, the correct approach would have been, there is manifesting of error and one cannot hide behind the lack of directions as an excuse for him not having a trial according to law. 

It follows, in our submission, that both as a matter of principle, the principles as laid down in this Court in Matusevich but, in my submission, departed from here, and also as a question of personal justice so far as him being on trial for murder where there was this failure for the trial to proceed according to law, that this is an appropriate case for the grant of special leave.  If the Court pleases. 

KIRBY J:   Thank you.  The Court does not need your assistance, Mr Campbell. 

In our view, the error that occurred at the trial because of the misunderstanding of the requirements of the Evidence Act 1977 (Qld) has been disclosed sufficiently in the reasons in the Court of Appeal. We would not, in anything we do or say today, wish to cast any doubt upon the great importance of the continuing authority of this Court’s judgment in Matusevich v The Queen (1977) 137 CLR 633. It is important that trial courts and appellate courts throughout the country should adhere closely to that authority.

However, the prosecution case in the present matter was extremely powerful, for reasons that have been revealed in the exchanges with counsel.  We are not convinced that a miscarriage of justice has ultimately occurred requiring the intervention of this Court, or that there are reasonable prospects that an appeal would succeed if special leave were

granted.  For those reasons, the order of the Court is that special leave is refused. 

AT 3.28 PM THE MATTER WAS CONCLUDED