The Queen v Kirkby

[1999] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 1999

B e t w e e n -

THE QUEEN

Applicant

and

GREGORY REX KIRKBY

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 12.14 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   If the Court pleases, I appear with my learned friend, MR T. MOYNIHAN, for the applicant. (instructed by the Director of Public Prosecutions (Queensland))

MR A.J. GLYNN, SC:   May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the respondent.  (instructed by Dearden Lawyers)

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   If your Honours please.  This is a Crown application for special leave.  We acknowledge the authorities set out in our learned friend’s written application as to the test to be applied for the Crown seeking special leave.  Our submission, however, is that this application raises for the Court’s consideration points of principle, which involve matters of general importance, conflicts between decisions of State Supreme Courts, and matters which have not, to our knowledge and research, been considered by this honourable Court.

There are three matters which we say directly arise:  the first of those is a conflict between State courts over the method of proof of commission of an offence by a principal offender on the trial of an accessory to that offence; the second is to what are the elements of the offence of being an accessory to an offence; and the third matter is the status in this country of the so-called rule in Hollington v Hewthorn, (1943) 1 KB 587.

CALLINAN J:   Mr Byrne, can I just ask you this question, I am sorry to interrupt you there?

MR BYRNE:   Yes, certainly, your Honour.

CALLINAN J:   Do you dispute that the certificate could have been excluded on discretionary grounds?

MR BYRNE:   We accept that there is a statutory discretion under the Evidence Act to exclude all evidence, including a certificate such as this.

CALLINAN J:   What would have been the basis of its exclusion?  What sort of discretionary consideration do you accept might have justified an exclusion?

MR BYRNE:   The basis on which, at least her Honour the President said in her remarks that it would have been excluded in the exercise of discretion, was, we say, the proof of the guilt of the principal offender or the commission of the offence by the principal offender, was not an element of the offence to be proved against the accessory.

CALLINAN J:   All right, well, that seems to have been more of a legal ground than a discretionary ground for exclusion.  What of the other member of the court who would have excluded the certificate?  I think there were two, were there not, who would have?

MR BYRNE:   Her Honour the President, as I recall, was the only one who dealt with that in, what we say were, obiter remarks.  Mr Justice Jones agreed generally with the judgment of both her Honour and Mr Justice Thomas.

CALLINAN J:   I do not want to take you off your argument, but are there any other discretionary grounds upon which it might have been excluded, for example, its prejudicial effect?  It sounds unlikely, does it not, prejudicial effect outweighed any probative value?

MR BYRNE:   Our submission really is, if we are correct in our submission that it is an element of the offence that it was committed by the principal offender, then no proper exercise of discretion could have excluded ‑ ‑ ‑

CALLINAN J:   Well, that is what I was really trying to find out, what your position was there.  You say that it could not be excluded on discretionary grounds?

MR BYRNE:   Yes, no proper exercise of discretion would have led to its exclusion.  The cases referred to by her Honour the President, the English cases, were, as we apprehend them, cases of co-accused, where each is jointly charged, for example, with stealing and proof of conviction of one was excluded, despite the statutory scheme in England on the trial of the other, which was quite, with respect, a proper exercise of the discretion.  It is quite different, we say, where, in the special situation of an accessory to an offence being tried separately from the principal, and where an element of that offence is that commission by the principal of the offence, and a means of proving that, prima facie.

CALLINAN J:   It seems extremely unfair, does it not, assuming that the person who has been convicted is available to be called, that the Crown stands aside and does not call that person, because the person is a highly material witness, is that not right?  If the fact of the conviction is material, then the person against whom the conviction has been entered is obviously a very material witness.

MR BYRNE:   Quite so, but ‑ ‑ ‑

CALLINAN J:   Well, why would not the Crown call a material witness?  Why would the Crown abstain from doing that?  Is it not the duty of the Crown to call material witnesses?

MR BYRNE:   Quite so, your Honour.  In the circumstances here there had been a plea of guilty to the offence by the principal offender.  That person was present at the trial.  The Crown took the step of not calling him because he had given what were perceived as inconsistent statements.  He was not therefore seen as a reliable witness and exercising the discretion open to a Crown Prosecutor pursuant to Apostolides and Whitehorn, for example, the Crown took the view that it should not call him, him being unreliable.  The Court of Appeal, as I read their reasons, said that that was not an unreasonable exercise of the discretion by the Crown.

CALLINAN J:   Well that might be the Court of Appeal’s view, but the fact of unreliability of that person, and his presence, giving evidence, would be matters of which the defence would be able to avail themselves.

MR BYRNE:   He was there and if ‑ ‑ ‑

CALLINAN J:   I know he was there.  I just do not understand why the Crown would not have called him in order to enable the accused to exploit the unreliability.

GLEESON CJ:   Did the decision in the court below proceed upon the basis that the fact of his conviction, leaving aside the question of the manner of proving that fact, was a material fact?

MR BYRNE:   No, I do not believe it did, your Honour.

GLEESON CJ:   That is the primary issue, is it not, whether the fact of his conviction is a material fact?

MR BYRNE:   We say it was a material fact; it was, in fact, more than that, it was something which the Crown was required to prove beyond a reasonable doubt.

GLEESON CJ:   And what did the Court of Appeal say about that?

MR BYRNE:   What the Court of Appeal said was that both judgments took the view that the fact that the principal had committed the offence of grievous bodily harm on the complainant, was not an element that the Crown had to prove.  I defined ‑ ‑ ‑

GLEESON CJ:   That is not an answer to my question, you know.  There is a difference between a fact that is a material fact and a fact that is an essential fact.  My question to you is, what was the reasoning of the Court of Appeal on whether this was a material fact?  Was the Crown entitled to set about proving Bonner committed this assault?  Leave aside for the moment the question of the manner of proof.  If the answer to that question is no, there was no question of calling Bonner as a witness in the case, was there?

MR BYRNE:   That is so.

GLEESON CJ:   So what was the approach of the Court of Appeal on the question of whether the Crown was entitled to prove, by a proper means, whatever they might have been, that Bonner committed the assault?

MR BYRNE:   Perhaps I can answer it by referring your Honour to the passage in Mr Justice Thomas’ judgment at page 57 of the application book.  His Honour there, beginning about line 25, halfway down the page, sets out the elements.  He then goes on to say that:

The fact that Bonner actually inflicted the harm to Mr Randall was not an element of the offence, although the evidence produces the virtually inescapable inference, even leaving aside the certificate of conviction of Bonner, that Bonner was the perpetrator.  However the Crown’s burden was to show causation between the original procurement and the end result.  The nature of every link in the chain or the actual identity of the final perpetrator would not necessarily need to be known for the necessary inference to be drawn of cause and effect.

GLEESON CJ:   Let me put my question in a slightly different way.  If we refuse special leave and the matter goes back for a new trial, will the Crown consistently with the reasoning of the Court of Appeal be entitled to call Bonner as a witness and ask him whether he bashed the victim?

MR BYRNE:   I believe the answer to that must be yes, your Honour.

GLEESON CJ:   So, the Court of Appeal held that he was a material witness, although not an essential witness.  It would assist the Crown’s case to have his evidence, or evidence that he bashed the victim, but the Crown case would not fail if it did not have that evidence, is that what it amounts to?

MR BYRNE:   Yes, that is so.

GLEESON CJ:   Thank you.

MR BYRNE:   If I can revert to the submissions we make as to the points of principle.  The method of proof adopted by the Crown in this trial was consistent with the approach previously taken in Queensland in the case of Reg v Carter and Savage; Ex parte Attorney-General.  That was also  consistent with the approach, it would seem, in Victoria in Reg v Dawson.  Doubts have been expressed as to that approach in the Tasmanian Supreme Court and the authorities have recently been at least canvassed without a decision being made in the Supreme Court of the Northern Territory.

GLEESON CJ:   If what you just said to me a moment ago is correct, the decision of the Court of Appeal turned upon the method of proof of the conviction of Bonner, is that right, not the relevance of the fact that he assaulted the victim?

MR BYRNE:   It was really a combination of both, I think, your Honour.  The ground of appeal before the Court of Appeal was whether it was fair to use the certificate of conviction without calling Bonner as a witness.

GLEESON CJ:   Yes, that goes exclusively to the method of proof of the fact.

MR BYRNE:   We must accept that.

GLEESON CJ:   Yes.  And are these authorities that you refer to, authorities about the method of proof of a conviction?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Only?

MR BURNSIDE:   Only.

GLEESON CJ:   So the issue that you want to agitate before this Court is whether, accepting that the evidence of Bonner was material, the Crown could prove the fact that he was convicted of assaulting the victim and, inferentially, that he in fact assaulted the victim, by tendering a certificate of his conviction?

MR BYRNE:   That is so.

CALLINAN J:   And did the method of proof, or the decision on the method of proof, turn upon a negative implication to be derived from section 79 of the Evidence Act?

MR BYRNE:   A negative implication?

CALLINAN J:   The section 79 does not mention criminal proceedings.

MR BYRNE:   No, it does not.

CALLINAN J:   And that was the basis, was it not, that if a certificate were to be admissible, then specific reference could have been expected to have been made to criminal proceedings in section 79, is that right?

MR BYRNE:   That is correct in the context that the Court of Appeal held that Hollington v Hewthorn, a case your Honour referred to earlier, was, for want of a better term, alive and well and living in Queensland, to the extent that its effect was taken beyond its facts, which were civil matters, and applied to criminal matters in this State.

GLEESON CJ:   Mr Byrne, if the only issue is the method of proof of the fact that somebody has been convicted, would it have been open to the Crown to prove the conviction of Bonner by calling a police officer who said, “I was in court at such and such a place, on such and such a time and I saw and heard Bonner convicted of this offence and sentenced for it.”?

MR BYRNE:   We would say yes, your Honour.

CALLINAN J:   Would that not offend the principal?  Would that not be hearsay?

MR BYRNE:   It is a solemn admission in court.

CALLINAN J:   Yes, but it is still hearsay.  It is what somebody else heard.

GLEESON CJ:   The fact in issue is the fact of the conviction.

MR BYRNE:   That is so.

GLEESON CJ:   Not the fact that he committed the offence of which he was convicted.  That may be an inference that follows from it.  The certificate only proves the conviction, does it not?

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   It may be you would infer from the fact that he was convicted, that he committed the offence.

MR BYRNE:   That is so, and the reason it was sought to be tendered was, prima facie, rebuttable evidence as to that aspect of it.

GLEESON CJ:   As to what aspect?  The aspect of his conviction or the aspect that he did the bashing?

MR BYRNE:   Well it was, we would say, certainly evidence of the former and evidence from which a jury could conclude the latter.

CALLINAN J:   But that is the problem, is it not, because section 79 deals expressly with civil applications and you have to identify, as it were, an element of the criminal offence in respect to which the certificate refers, which is an element of your cause of action, as it were, in civil proceedings.  There has to be a complete identity between the two, and the fact that section 79 goes into that sort of detail and is concerned very much with proof in civil proceedings, rather suggests, does it not, that a certificate is not admissible as a means of proof, even if it is a relevant matter, in a criminal proceeding.

MR BYRNE:   We must answer that, no, your Honour, and the reason we do so is that that very point was considered by the Court of Criminal Appeal in Reg v Carter and Savage and the opposite conclusion reached, that conclusion being that the rule, in so far as it is now abolished by section 79, was not part of the criminal law in Queensland, even prior to the enactment of that legislation.

GLEESON CJ:   Mr Byrne, am I right in thinking that the way somebody might use section 79 is that in an action for damages for injury resulting from negligent driving, you might tender a certificate of the conviction of the defendant for negligent driving?

MR BYRNE:   Yes, your Honour, that is so.

CALLINAN J:   It is a provision that Queensland has had for a long time, in various forms, I think, is it not?  It was unique to Queensland in Australia, I think, was it not?

MR BYRNE:   My understanding was that it was certainly part of the original Evidence Act in 1977.  I cannot answer your Honour as to whether it had a statutory form prior to that time.  But, our submission simply on that point is this, that, what the Court of Appeal has done, in so far as section 79 and the method of proof is concerned, is to say that it could not be used for criminal matters because Hollington v Hewthorn applied to criminal matters in this State.  What we say is a special leave point arising from that, is that the Court of Appeal of Western Australia has said that Hollington v Hewthorn, on its very facts, that is, civil application or using a criminal conviction on a civil action, was wrongly decided and would not be followed in that State.  The Court of Appeal of New Zealand has reached the same conclusion, both courts noting that the matter has not received any attention by this honourable Court.

So what we have, we submit, is the undesirable situation of the rule in Hollington v Hewthorn being extended in Queensland and abrogated judicially in Western Australia and also in New Zealand.  We say that is an unsatisfactory basis for the law to be in and we say that is important and arises here because the decision of the Court of Appeal in this case was focused upon the rule in Hollington v Hewthorn and, as your Honour Justice Callinan says, section 79, applying and therefore prohibiting the use of a certificate as a method of proof in this case.  So we say that there is that live issue in which there is dispute between State Supreme Courts.

CALLINAN J:   Even if you are right about the non-application of Hollington v Hewthorn, the introduction of section 79 in its present form might still be an argument against you.  I am not saying that it would be right or wrong, but it is still an argument, even if you disregard Hollington v Hewthorn entirely.  You accept that?

MR BYRNE:   We accept that is the case, but that really enlivens the differences and the conflict between State Supreme Courts on the issue, and where that particular matter underlies, we say, the Court of Appeal decision here.

CALLINAN J:   Does Western Australia have an analogue of section 79?

MR BYRNE:   I do not know, but I would be surprised since the court held on a point of principle that the rule did not apply in that State.

CALLINAN J:   As I say, I think Queensland may still be unique, save for the new Commonwealth Evidence Act, which has been adopted also in New South Wales, in having a provision of this kind.  I may be wrong, but I think that is right.

MR BYRNE:   Your Honour, I think from the annotations to Hollington v Hewthorn, it appears that the provision has been abrogated in the Territories as well; the ACT and the Northern Territory.

CALLINAN J:   There is a provision, something like section 79, there too?

MR BYRNE:   Yes.

CALLINAN J:   Right.

MR BYRNE:   It may indeed – and I do not wish to mislead you – be wider than that.  It may abrogate it totally.

CALLINAN J:   Yes, I understand.

MR BYRNE:   The only other issue we seek to challenge is the elements of the offence.  We say that is an important issue on which courts need assistance.  It is fundamental, we say, that on a charge of being accessory after the fact, the Crown needs to prove, as an element, that the principal offender committed the offence.  The Court of Appeal has said that that is not an element and that decision or that reasoning appears to be in conflict with decisions of other State Supreme Courts, which we have referred to in our written outline.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Byrne.  We do not need to hear you, Mr Glynn. 

The Court is of the view that this case does not raise an issue which brings it within the exceptional circumstances in which special leave to appeal would be granted to the Crown and the application is refused.

MR GLYNN:   Your Honour, I would seek an order for costs, in the circumstances.

GLEESON CJ:   What do you say about that, Mr Byrne?

MR BYRNE:   There is certainly power to grant it and it has been granted in the past.  The only issue we can raise is that the matter was brought by the Crown for…..by the law.  That is the only submission.

GLEESON CJ:   That is really a reason for making an order for costs, is it not?  If it is a test case for you but not for them.

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Yes, the applicant must pay the respondent’s costs of the application.

AT 12.36 PM THE MATTER WAS CONCLUDED