Stockman v The Queen

[1996] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A40 of 1995

B e t w e e n -

DONALD LEON STOCKMAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 24 APRIL 1996, AT 4.49 PM

Copyright in the High Court of Australia

MR K.V. BORICK:   If the Court pleases, I appear for the applicant.  (instructed by Scammell & Co)

MS W.J. ABRAHAM:   If the Court pleases, I appear with my learned friend, MS C.M. MEALOR, for the respondent.  (instructed by P. Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mr Borick.

MR BORICK:   Your Honours, there is not much that I really can or need add to the written material.  In my submission, the difficulty is still arising with the words “independent assessment by an appellate court” and that there is still a tendency for the verdict to permeate the approach by an appellate court as illustrated by this case where the jury found Mr Stockman guilty and the court, when being asked to make its independent assessment, said at the end, “Well, the jury has had a look at the scene for themselves and, therefore, the verdict stands.  There is no need for us to look at it.”  My submission is if it was necessary - and it was in this case - for a jury to view a scene in order to understand it then so should an appellate court making its own independent assessment.

There is little authority on the test that a court should ask of itself when there is an application for a view.  At present the law seems to be “exceptional circumstances” or, as our court expressed it, “a view would make a real difference”.  My submission to the Court is that that is incorrect, that the law since M and those other cases dealing with the test means that this Court should as a matter of principle look at this issue really for the first time.  In my proposition, the Court should say that if an appellate court, making an independent assessment, is asked to view a scene - the scene is there for it to look at - then it should do that in order to put itself, in a sense, in the same position as the jury and make its own assessment.  That is my submission, that ‑ ‑ ‑

KIRBY J:   But there is plenty of authority that says that the decision is a discretionary decision.  Nothing we could ever say would lay down a general rule that in every case a Court of Criminal Appeal or Court of Appeal has to go on the view that the primary judge or jury did and therefore you have to leave it to the judges to determine in their own particular case whether they think it is important for the discharge of their duties.  In this case there was an aerial photograph which was available to them which would have helped them to understand the layout of the land.  It just seems to me it is difficult for the Court to be expected to say more than

that it is discretionary and has to be left at that unless there is some manifest mistake in the exercise of the discretion.

MR BORICK:   With respect, your Honour, if the court considering this matter had - or to take the facts of it, had an aerial photograph.  That, in our submission, was of no assistance whatsoever and that is why, in the transcript, you will see the reference to the great difficulty the court had in trying to understand what this evidence was all about.  That if leave were given then I would address the issue of what the test should be, but at the present moment the law is that an applicant for a view before an appellate court has to show exceptional circumstances that it would make a real difference and that, in my submission, is the law that is wrong.  That is the law that this Court should correct by giving the applicant special leave to appeal and then the issue of what test should apply could be considered fully.  Those are my reasons for seeking special leave to appeal in this case.

BRENNAN CJ:   Yes, thank you, Mr Borick.  We need not trouble you, Ms Abraham. 

The decision of the Court of Criminal Appeal is not affected by any error of law and does not reveal any mistake in its response to the application that it should conduct a view.  For these reasons special leave will be refused. 

AT 4.54 PM THE MATTER WAS CONCLUDED