Thornberry v The Queen

[1995] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S154 of 1994

B e t w e e n -

STEPHEN THORNBERRY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 10.44 AM

Copyright in the High Court of Australia

MR T.A. GAME:   If the Court please, I appear in this matter for the applicant, together with my learned friend, MR S.J. ODGERS.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R.N. HOWIE, QC:   May it please the Court, I appear with my learned friend, MS M.F. LATHAM,for the respondent Crown.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Mr Game, I think we would advantaged if we call first on Mr Howie.

MR GAME:   If the Court pleases.

MR HOWIE:   On the face of it, I can see why your Honours would be troubled by it, in the view that the adjournment sought was for a short period of time, but what really happened was ‑ ‑ ‑

BRENNAN CJ:   The problem really is:  is there a standard of administration of criminal justice in Bathurst different from that in Macquarie Street?

MR HOWIE:   No, except that, I suppose, in Bathurst one of the difficulties is that the court does not sit all the time; that therefore the convenience of witnesses and the court and the due fulfilment of the criminal justice system in Bathurst has more problems, I suppose, than in Macquarie Street.  I mean, there is more need for his Honour to take into consideration, in those circumstances, the fact that the court could not sit on the Monday, or he was not available to sit on the Monday, and therefore the time which might have been available in Macquarie Street was not available in Bathurst.

BRENNAN CJ:   That is the real problem, is it not?

MR HOWIE:   Except this, though; what happened here was clearly, we would submit, that defence counsel did not ensure that the witnesses would be there.  There was no reason really suggested why the witnesses could not be there on the Wednesday.  No effort would seem to have been made to have the witnesses there at all.  What happened was that the defence solicitor seemed to take the view that it was more important that the witnesses go to Sydney than come to the trial, and therefore acted accordingly.

BRENNAN CJ:   One could understand that.

MR HOWIE:   Except that if one had come back to Dr Cole and said, “Look, there are real problems about it; what alternative arrangements could be made”, they might have been able to make alternative arrangements.  I know it is not the best of all possible worlds.  The really important thing for the child seemed to be having the equipment fixed or altered - that was the thing that needed some urgent attention.  The other seemed to be a bit of serendipity - something that just seemed to happen and coincide with what was going to be the appointment anyway, that there going to be other carers and children there and she might benefit from that.  It seems that that occurred every three months, that those people got together for that sort of assistance. 

DAWSON J:   An adjournment of a few hours on a Thursday afternoon would have solved the situation.

MR HOWIE:   Except this, though, of course.  What his Honour was concerned about was that it was an adjournment for the whole of Thursday afternoon and that the trial then might not have been able to finish on the Friday, with the result that he could not sit on the Monday and the trial would have then had to have been vacated and the jury discharged.  It seems clear, though, that the defence counsel must have known that there was a real chance that the trial would not be adjourned.  Nothing was done until the last moment.  Nothing was done to put his Honour in the position where he almost had to grant the adjournment, they would have thought.  Nothing was said to his Honour on the Wednesday that the witnesses were not going to be present on the Thursday or that they had not been  subpoenaed, or that they were not going to attend on the Wednesday.  None of the things that his Honour suggested which might have got around the possibility had been addressed.  It had just simply been decided that the witnesses would go to Sydney and would be available, if they were available, on the Friday, and if the court was prepared to hear them.

That explains why the evidence was led from the police officer and from the de facto wife of the applicant as to, if you like, the alibi evidence coming in hearsay.  Clearly, that must have been done by arrangement with the Crown as a matter - it seems a matter of fairness on the basis that the adjournment would not be granted on the Thursday and therefore some, as it were, damage control was undertaken.  We would  submit that this was a case where there was a decision made by counsel for the accused and the solicitor to forego the necessity for the witnesses to be there as required by his Honour, and to take the punt that they would get the adjournment, or if they did not get the adjournment, they had the fall‑back position of having the evidence otherwise in the trial.

They were matters that the Court of Criminal Appeal we say were entitled to take into account when determining whether there was a miscarriage of justice.  They took into account the fact that the evidence did otherwise get before the jury - certainly not, perhaps, in the same way as the witnesses giving evidence ‑ ‑ ‑

DAWSON J:   It is very hard to see that there is not a miscarriage of justice when because of the convenience of the court the trial has to finish on the Friday; the judge fearing that it will not refuses a short adjournment to enable witnesses to be called who give strong alibi evidence; and you have a situation in which, in the absence of that evidence, the jury goes out on a Thursday night and comes back and does not return a verdict until what - one and a half hours into Friday?

MR HOWIE:   Yes, that is right, another one and a half hours on the Friday morning.  The situation is that, to his Honour’s viewpoint though, nothing was indicated why the witnesses were not there on the Wednesday.  He had offered to sit late on the Wednesday.

BRENNAN CJ:   On the Monday, I gather, the judge was handed a message from Dr Cole about the importance of the procedure that was to be gone through for the child?

MR HOWIE:   Yes.

BRENNAN CJ:   On the Tuesday morning there was a renewed application to have the trial date vacated on that ground?

MR HOWIE:   That is right. 

BRENNAN CJ:   On the Wednesday the trial commences.  On the Thursday morning, when they have gone to Sydney for this purpose, the evidence from the detective is allowed?

MR HOWIE:   That is right.

BRENNAN CJ:   Then at Thursday lunchtime, the judge is told that the witnesses will be back on the next morning.

MR HOWIE:   Yes.

BRENNAN CJ:   Really.  The reason why not is because a judge sees no reason to change the view that he has had previously, which is affected by the fact that he is not available the next week.

MR HOWIE:    True, but as I say, though, his Honour did give them the opportunity to have the witnesses there on the Wednesday.

BRENNAN CJ:   But I mean, they were going to Sydney to see the child fixed up.  It was their child.  It was the child of one of those witnesses.  It was not a case of the witness not being willing to come unless subpoenaed; it was a question of the priority that the witness was according to the giving of evidence on the one hand and the care of the child on the other.

MR HOWIE:   True.  I think that priority was determined by the sister.  I do not think the witnesses were ever given the option:  I do not think, for example, the mother‑in‑law, who perhaps - not necessary to go down to Sydney, was never given the option of staying back to give evidence rather than going down to Sydney.  The sister seemed to just accept that that is what they would do, and never put the option to them that they may have the choice of coming and giving evidence on the Thursday. 

On the Wednesday, it was a two and a half hour - I think the evidence was - trip to Sydney.  There was no reason why they had to leave at Wednesday at lunchtime.  That was a matter of their convenience and the appointment was not until the next morning - they wanted to get to Strathfield in the evening and stay with a relation.  There was no reason given, or no suggestion, or nothing ever put to the witnesses, that they might change their travel plans and leave at 4 o’clock or 5 o’clock, and turn up on the Wednesday and give evidence there.  Again, no explanation was made as to why those witnesses were not called on the Wednesday to his Honour, and that was one of the matters that his Honour would have taken into account, no doubt, in refusing the adjournment.

BRENNAN CJ:   Was not the Crown case still going on the Thursday morning?

MR HOWIE:   Yes, it was, but they were going to interpose the witnesses in the Crown case.

DAWSON J:   There are some difficulties about that, are not there, too?

MR HOWIE:   It is unusual, but if the Crown agrees ‑ ‑ ‑

DAWSON J:   Is there not a section of the Act that says that before the accused makes a statement, which he did here, all the evidence shall be called on his behalf?

MR HOWIE:   Nobody was relying upon that.  That is something that has come up at this stage.  That was never put to his Honour for a reason for why they would not be there on Wednesday.

DAWSON J:   What does the section say, I am sorry?

MR HOWIE:   405.  I think it says that the accused may make a statement provided that -

Every accused person on his trial, whether defended by counsel or not, may make any statement at the close of the case for the prosecution, and before calling any witnesses in his defence, without being liable to examination thereupon by counsel for the Crown or by the Court and, after the prosecutor has addressed the jury or has declined to address the jury, may, personally or by his counsel, address the jury.

That was never put to his Honour, as a reason why the witnesses would not be there on the Wednesday.  No doubt, if the witnesses had come on the Wednesday as his Honour was proposing and given evidence and then the Crown had objected to the accused making a statement, his Honour would have obviously then discharged the jury and stopped the trial.  He would not have allowed that unfairness to occur, where he had made an arrangement, or was prepared to make an arrangement to help the accused and then pull that provision on him.  What no doubt would have happened probably is that the accused would have made his statement; nobody would have objected; the Crown would not have objected if he was going to make his statement; and the trial would have proceeded.  No point would have ever been raised again later on about the fact that he had made a statement.  It could not have prejudiced him.

The only argument that was made in the Court of Criminal Appeal against that was a tactical one - that it was tactically not proper to call those witnesses.  This was a case where the only evidence for the Crown was one of identification, really.  The accused had already given to the police officer his alibi and there was really no tactical problem in calling the alibi witnesses before the end of the Crown case after the identification witness had given his evidence, which was the first.  It would have been no loss of impact - in fact, the impact might have been greater to have called the alibi witnesses straight after the identification witness.  The identification evidence was strong - it was not “a fleeting glance” material - it was strong.  But this was a matter, we would submit, that was within the Court of Criminal Appeal’s decision, whether to determine whether there was a miscarriage of justice in this situation, taking into account the fact that nearly all of this alibi evidence was before the jury, and his Honour gave them strong matters in the summing up.

May I just hand up those pages of the summing up where his Honour dealt with the alibi evidence.  Your Honours will see there at page 20 his Honour quotes in full the conversation with the police officer and the mother‑in‑law who had gone down to Sydney, which, as I say, was obviously allowed to be given by the Crown on the basis that the adjournment might not be granted.  It was done on the basis that the adjournment might not be granted and that the - as I say, damage control, by the defence - so he quoted the whole of that.  He then told the jury that it was really not a matter for the witnesses to come to see the police, but for the police to go investigating the witnesses.  He continued with that on page 22 because obviously the Crown had led evidence that the witnesses had not gone to see the police officer.

Then on page 24 he tells the jury about the fact that it is nothing unusual that an alibi is given by people who are related to an accused person, when it is talking about where people were on the Sunday morning.  He talks there about the mother‑in‑law being on the phone - all that material; and indicated to them the full nature of the alibi evidence.  The alibi evidence therefore that the witnesses that were not called did not add, we would submit, a great deal.  I know the jury did not see them but, as the Court of Criminal Appeal said, cross‑examination might have been worse for them.  The material was there; it was well before the jury; his Honour did nothing to deprecate it; nothing to cut down the basis of it.  It was indicated to the jury that they were at a medical appointment in Sydney; and the Court of Criminal Appeal took all that into account in determining whether there had been a miscarriage of justice by the failure to grant the adjournment and not call the witnesses. 

We would submit that that was well within the compass of the powers of the Court of Criminal Appeal to make that decision, and especially in the light of what was the fairly strong identification evidence.  We would submit that it really raises no point of general public importance.  It was the court fulfilling its function to determine whether there was a miscarriage of justice, looking at all the material that was before it, including the material that the witnesses would have given had they been called, and that it was a matter which they decided where no miscarriage of justice had occurred and were correct in doing so.  I have nothing further, thank you.

BRENNAN CJ:   Mr Howie, what is the position so far as custody is concerned of the applicant?

MR HOWIE:   He is serving another sentence, I think - yes, I think this sentence was not to commence till some time after a sentence he was serving at the moment - so I think the sentence does not commence until 1995 - end of this year.

BRENNAN CJ:   I need not trouble you, Mr Game.

There will be a grant of special leave in this case.  Can you tell us, Mr Game, how long you expect this case to last?

MR GAME:   I suppose ‑ ‑ ‑

BRENNAN CJ:   I mean, the grounds of appeal, I take it you understand, are limited to the question of the refusal of the adjournment and the availability of the evidence.

MR GAME:   Yes.

BRENNAN CJ:   That should not take very long to develop.

MR GAME:   It would take me about 30 to 40 minutes.

BRENNAN CJ:   At the outside?

MR GAME:   At the outside.

BRENNAN CJ:   Mr Howie, you would not be much longer, would you?

MR HOWIE:   I do not know that I can say much more than I have said today.

BRENNAN CJ:   Yes, very well.

MR GAME:   There is really not much more to say than is in the written submissions.

BRENNAN CJ:   Very well, there will be a grant of special leave in this case.

AT 11.01 AM THE MATTER WAS CONCLUDED