Summersford v The Queen

[1994] HCATrans 223

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S68 of 1993

B e t w e e n -

STEPHEN NOEL SUMMERSFORD

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

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AT SYDNEY ON FRIDAY, 4 MARCH 1994, AT 10.10 AM

Copyright in the High Court of Australia

MR D.B. MILNE, QC: In that matter, if Your Honours please,

I appear with my learned junior, MR A.J. PHILPOT,

for the applicant. (instructed by T. Murphy,

Managing Director, Legal Aid Commission of New

South Wales)

MR R. KELEMAN:  May it please the Court, I appear for the

respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

BRENNAN J: Yes, Mr Milne.

MR MILNE:	Your Honours, this application arises out of the conviction of the applicant, together with another
man whose name is Coulstock, for the murder of a
person down on the south coast of New South Wales.
Shortly, the circumstances were that there were
apparently three men in a motor car who went to a
place close to where there was some water.
BRENNAN J:	I think we are familiar with the facts and we

have read the judgment, Mr Milne.

MR MILNE:  Thank you, Your Honour. The simple point in it

is one which again raises the question of the use

to be made of lies and that has been recently dealt

with by this Court, as Your Honours know. The

complaint that is made in this case is that the

lies which were said to be fatal to the present

applicant were never identified. So that the

situation arose where the case was left that

neither the Crown, nor the judge in his summing up,

identified those lies which were alleged to be lies

of the applicant himself so that they could be
converted, as it were, to admissions from which he

could be found to be guilty.

TOOHEY J:  Mr Milne, I do no quite understand from the draft

notice of appeal what is being contended in regard

to lies. It is not asserted that there was any

misdirection by the trial judge. It is said that
the Court of Criminal Appeal failed to deal
adequately with the probative value of lies, which
seems to put it more or less in the same category

as the second ground of appeal, namely that the

Court of Appeal failed to evaluate the evidence.

MR MILNE: With the greatest of respect to the Court of

Criminal Appeal, the judgment about lies in respect

of this applicant was very scarce.

TOOHEY J: That is not an answer to my question. Is there a

complaint about the trial judge's directions?

MR MILNE: Yes, there is, Your Honour.

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TOOHEY J:	It is certainly not evident from the draft notice

of appeal.

MR MILNE:  I know it is not, Your Honour. I am aware that

it is not.

BRENNAN J:  Was there any application for redirection?

MR MILNE: There was, Your Honour, yes.

BRENNAN J: In relation to lies?

MR MILNE: In relation to lies. That appears, Your Honour,

and I can take Your Honours to it, but there were a

number of pages - there were several applications

for redirections upon lies and the matters to which

I advert to now were, in fact, raised with the

trial judge and the trial judge, with respect to

him, confused the use of lies as corroboration with

the use of lies as matters which went to the

materiality in the issues in the case.

BRENNAN J:  Can you take us to the misdirections of which

you complain?

MR MILNE:  Yes, Your Honour. The questions that were raised

about the directions, at pages 66 and 67 of the

summing up, are to be found in the submissions made

by the Crown - one of the pages, at page 57 of the

appeal book. The following page, which was page 67

of His Honour's summing up is not included in the

appeal book and I hand to Your Honours copies of

those pages.

DAWSON J:	Which numbers are you using, Mr Milne?
MR MILNE:	The appeal book numbering, No 57 in the appeal

book.

DAWSON J:	I see, yes.
MR MILNE: Page 57 in the appeal book happens to be 66 of

His Honour's summing up. The page that I now hand

to Your Honour is page 67 of His Honour's summing

up. There, Your Honour, a direction was sought in

the middle of the page shortly after line 25 by

Mr Philpot about this question of lies and, again,

at page 67, if Your Honour will turn to it, about

one-third of the way down.

So that in answer to Your Honour

Justice Brennan, there were directions sought from

the trial judge to distinguish between - - -

BRENNAN J:	What is the misdirection?
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MR MILNE:	The misdirection was that His Honour did not

direct the jury at all about what the lies were

that the Crown alleged upon which the Crown

ultimately succeeded.

BRENNAN J:	Did not identify as a matter of fact?
MR MILNE:	Did not identify them.
BRENNAN J:	As a matter of fact, what those lies were?
MR MILNE:	As a matter of fact.

BRENNAN J:  I see. Why did he have to?

MR MILNE:  Your Honour, unless one knows what those facts

are, one, first of all, cannot tell whether they

are lies or not; and secondly, you cannot tell

whether they an issue or not.

BRENNAN J:  Why cannot the jury work that out in the light

of the general directions on law?

MR MILNE: That is the way it was left. But in our

submission you ought to identify what it is that

are the lies so that the jury's mind can be

directed to it. That is the central point in this

application for leave. That is it. We would not

want to add anything further than that other than

what the written submissions are.

DAWSON J:  The Crown identified lies, what the lies were

that they relied on, and that appears from page 51.

MR MILNE: They identified, Your Honour, two things: the

first one was that he first of all alleged that he

was not there at all. Later on, of course, he said

that he was in his statement from the dock. The

second thing that they relied upon was that after

the commission of the offence at a party that took

place, he told a lie about where he had been that

night. Neither of those matters would have been a

central issue in the case.

So the net result of it was that there was no

direct evidence against this accused at all of his

complicity in this crime. The only material which
could be said to be against him was in the form of

adverse findings that could have been made against

him because of the lies that he had told earlier

and those lies did not go, in our respectful

submission, to any central issue in this case. He

was convicted upon speculation and upon suspicion.

They are the submission which we make.

BRENNAN J:  Thank you, Mr Milne. We need not trouble you,

Mr Keleman. The Court is of the opinion that there

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is not sufficient reason to doubt the correctness

of the conclusion arrived at by the Court of leave in this case. Accordingly, special leave

will be refused.

AT 10.19 AM THE MATTER WAS ADJOURNED SINE DIE

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