Waghorn v The Queen

[1993] HCATrans 66

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MSS of 1992

B e t w e e n -

FRANK WILLIAM WAGHORN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

GAUDRON J

Waghorn 12/3/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 2.03 PM

Copyright in the High Court of Australia

MR P.C. DANE, QC:  May it please Your Honour, I appear with

my learned friend, MR P.F. TEHAN, for the

applicant. (instructed by Director of Legal Aid)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR R.M. READ, for the Crown.

(instructed by Director of Public Prosecutions

(Victoria))

MASON CJ:  Mr Dane, I hope we can make a little speedier

progress with this case than we did with the last

case.

MR DANE:  I will endeavour to do that. This is a murder

case where one of the key witnesses was a police

informer. This application will be confined to the

consideration of Parker, the police informer.

The special leave point is the recognition of police informers as tainted witnesses. The problem

that we say exists is that some judges recognize

them as tainted witnesses and some judges do not.

We ask that this Court identify them as being

within the class of tainted witnesses and thus

require a warning.

GAUDRON J: But this Court has dealt with that issue, has it

not?

MASON CJ:  Have you not got Pollitt in your favour on that?

MR DANE:  Very much so, and we say that Pollitt dealt with

the issue coincidentally,	it did not confront the
issue, albeit that we are	more than fortified with
what was done in Pollitt.	We say that
alternatively - - -

GAUDRON J:  Did you ask for them to be recognized

specifically as a tainted witness needing

corroboration at the trial?

MR DANE: At the trial?

GAUDRON J: Yes.

MASON CJ: Answer, "No" .

MR DANE:  The ground was specifically added to the grounds

of appeal, very much like in the previous case

about Maiden and Petty, that is -

MASON CJ:  You were asked about the trial.

MR DANE: Yes, Your Honour. Sorry, I accept the negative

and I have moved on from there. The situation was

that this trial was occurring before this Court

Waghorn 2 12/3/93

decided Pollitt. In fact, Pollitt had been decided

in the Full Court by the time this appeal came on,

but this Court had not decided Pollitt, albeit that

the propositions from the trial judge's charge in

Pollitt that were approved by this Court were drawn

to the attention of the court below here, the court

from which we appeal.

In other words, the approved warning - it

turned out to be approved - was drawn to the Court

of Criminal Appeal's attention.

GAUDRON J: But your problem really is, is it not, that you

did not ask for a corroboration warning of any kind

in circumstances where one might think it possible

that that was a deliberate decision because of the

evidence that might have been available to

corroborate.

MR DANE:  We appreciate that being said in relation to

Maloney, vis-a-vis accomplice warnings. They are sometimes spurned by defence counsel as being too

devastating when the corroborating evidence is

drawn to the attention of the jury in isolation.

Not so, however, would be the corroboration

warnings that we say are appropriate in relation to

police informers, because we say that there is a
particular problem that has developed in criminal

trials, recognized by several members of the Bench,

in particular Justices Deane and McHugh, in

Pollitt, about the circumstances of police

informers.

Now, to give the ordinary corroboration

warning about a police informer, which is to

identify the man with the crime is, we say, not
appropriate and to, in fact, mix, as the learned

trial judge did in this case, both a police

informer and an accomplice in the limited warning

that was provided in this case, confuses the issue

considerably because the accomplice warning

corroboration is clearly of one class, but where
one deals with the police informer corroboration,
the critical issue will be: did the conversation

take place? This is slightly different from

Pollitt. Pollit, we say, is - - -

GAUDRON J: But it does seem to me, Mr Dane, that if that

had been an issue at the trial, the trial might

well have been conducted quite differently. It is

not a question simply of a direction having been

given, it is a question of the evidence that would

have been challenged and called.

MR DANE:  Yes. Our submission - we take your comment, of

course, but our submission in answer to that is

Waghorn 3 12/3/93

that it is still incumbent upon a trial judge to

identify to a jury a tainted witness and give the

appropriate warnings nevertheless as to the way in

which the case is conducted. Unless, for example,

counsel conducting the defence said, "We do not

want a warning because". But that has not been the

case here. At most, there is silence.

But what one has here is the judge failing completely to recognize the significance of the witness, other than to say, "He is fundamental and

you should give special scrutiny to him". And

there is no addition of, "it would be dangerous to convict on the uncorroborated evidence of Parker",

especially when Parker is used - and we make no

complaint about it, because it is valid - Parker's

position is used as a corroborative point to

Maloney.

Now if, of course, the jury accepts that

Parker's evidence is correct, then of course it

will corroborate the accomplice's evidence, but not

the contrary. And, when there has been the

admixture, we say that there has been an injustice,

and it is incumbent upon a judge to. recognize that

problem at the outset, irrespective of the way in

which it is being conducted, and for the judge to

say, "There is the problem that you have here a
police informer". It is something that has

developed in the last ten years, perhaps, of the
criminal law. Especially in view of the

limitations that are now placed upon verbal

admissions in police custody, suddenly there is,

for one reason or another, a whole area of police

informer evidence emerging.

We say that this is appropriate, as a matter

of special leave, that this Court says that police

informers fall within the category recognized as

tainted witnesses and are to be dealt with

according to Bromley or Longman and, in particular,

Pollitt. Pollitt is the guide. And Pollitt, as

the Court is well aware, refers to the necessity to

give a warning that it is dangerous to convict and

linking that to corroboration.	They are the key
factors.	The Court says it is necessary - danger

and corroboration.

Here, the court, on page 246 of the appeal

book, in its judgment - the Court will be aware

that the learned trial judge said only that Maloney

and Parker should be the subject of special

scrutiny. That is all. At the foot of the page:

Such directions were in my view sufficient

having regard particularly to the way in which the witnesses were cross-examined and the fact

Waghorn 4 12/3/93

that the jury was reminded of that

cross-examination and the attacks upon their

credibility by both counsel and the judge. In

all the circumstances it was not necessary for

the learned trial judge to give a specific

warning to the jury of the kind now sought by

counsel for the applicant.

Counsel was seeking, there, a Pollitt warning.

One, then, is faced with the situation that a trial

judge did not identify to the jury the

circumstance, appreciated and understood as being a

difficulty by those who practise in the criminal

law, alerting the jury to that difficulty, and then

identifying the warning and the corroboration that

would be necessary for the jury to accept it.

That is really the point that we say. The

court from which we appeal says it is not necessary

to do that. We say that that clearly flies in the

face of that which was set out by this Court in

Pollitt. We have missed out on a Pollitt warning.

BRENNAN J:  The problem is also that there was no exception

taken to the absence of a warning at the end of the

charge, which led the court to say that, in those

circumstances, the ground of appeal should not be

entertained.

MR DANE:  We are met with that and we certainly do not - we

have no answer to that. Counsel did not say,

"Excuse me, Your Honour, we take the exception

that".

BRENNAN J:  If counsel had, then it may or may not have been

in the interests of their client to do so.

MR DANE:  Yes. With respect, on analysis, we say there is

no corroborative evidence available - that was

presented - that would corroborate the fact of the

conversation.

BRENNAN J:  Why is that the sort of corroboration that is

necessary?

MR DANE:  In our submission, it is necessary because one is

dealing with a prisoner with convictions

necessarily in a prison circumstance where a

prisoner may have an interest of his own to serve

rather than the interest of justice.

BRENNAN J: 

But what is it that says that the only sort of

corroboration that can be looked at, in order to
make it safe to act upon the prison informer's
evidence, is corroboration to establish that the
confessional statement was made?

Waghorn 

12/3/93

MR DANE: 

The other class of corroboration - - -

BRENNAN J: It is not a class of corroboration.

Corroboration means - - -

MR DANE:  Sorry. The other corroboration will be - the

corroboration, other than corroborating the
existence of the conversation, will go to the
matters that a dishonest witness would include in a

fabricated piece of evidence.

BRENNAN J:  Why? What is the object of the exercise, to

discover whether a witness is telling the truth, as

distinct from whether the accused is guilty?

MR DANE:	The purpose of the warning is to test the strength
BRENNAN J:	Is it not to alert the jury to the risk of

acting upon evidence of that character in reaching

a conclusion adverse to the accused?

MR DANE: Yes.

BRENNAN J:  And then if there is other evidence which tends

to implicate the accused in the commission of the

events, well then it may be safe, none the less, to

act upon the evidence which they find was a

confession statement made to the prison informer.

MR DANE:  Yes, of course we adopt that, and that is right.

We say that there is, however, the additional point

in a direction for corroboration on a police

informer - a prison informer - that is, the sort of
corroboration that one used to look for in an old
record of interview - the fact that it did take
place. That was usually provided by a register in

a police station that the person was present.

Here, the only evidence that was relevant was

that the two prisoners were in the same prison at

the same time. In other words - - -

BRENNAN J: That is an interesting historical analogy but

perhaps that is as far as one can take it.

MR DANE:  No, what we say here is that this point, the very

point was taken in the Full Court saying that they

should have got a different warning and that the

court from which we appeal said it was not

required. We say that that is in stark conflict

with Pollitt, but we draw the Court's attention, on

page 253, to what the court did say, namely:

If there had not been independent

evidence confirming that of Mrs Maloney and

Parker, the case might well have been one for

Waghorn 12/3/93

this Court to intervene. In this case,

however, the evidence of both Mrs Maloney and

Parker was confirmed and confirmed in
important respects by independent credible

evidence.

We are somewhat mystified by that conclusion

because, other than opportunity, there is no such

material available for Parker's evidence, and when

that is married to the absence of, for want of a

better description, a Pollitt warning, we say there

has been a miscarriage of justice.

BRENNAN J: But part of the Parker evidence was that the

accused had confessed that he had told a string of

lies to the woman who was involved about being

buried in a mine shaft and so forth.

MR DANE:	Yes.
BRENNAN J:	I suppose one would have been interested to

discover what the jury's reaction would have been
if they had been reminded of the statements that

the accused had made to Cheryl Turner, her mother,

and Sheree Sleeth about the ironing of the pants

before two men took him out, may be to the drying

off centre.

MR DANE:  Yes, well, the ironing of the pants and the taking

off by two men to the drying out centre, we say, is

not evidence that is capable of corroborating the

applicant's involvement in the crime of murder. It

is equally as consistent with corroborating him in

the crime of accessory after.

The central point in the defence was that this

man was signing the bail book at a police station

some distance away and thereby produced the alibi. But there is no doubting that there is evidence to corroborate his presence at the scene but there is

not sufficient evidence, by way of corroboration,

to put him at the scene at the time, other than

Mrs Maloney. Mrs Maloney does not see, but claims

to hear his voice there at the time.

So, the only evidence that can amount to

corroboration, that is said to amount to

corroboration, we respectfully disagree with. And

we say that this is an appropriate case for this

Court to say that the directions given in Pollitt

are the appropriate directions and that this matter

be remitted to the court for it to decide,

according to those directions, and that it then can

engage in the analysis of the corroboration that we

complain of here. This Court is not the court for

that to be spelt out in. They are the matters.

Waghorn 12/3/93

MASON CJ:  Thank you, Mr Dane. The Court need not trouble

you, Mr Bongiorno.

Absent any explanation for the omission of

counsel to apply for a re-direction at the trial,

we are not persuaded that the failure of the trial

judge to give a direction in accordance with the

decision in Pollitt v Reg gave rise to any

miscarriage. The omission to seek a direction in

the circumstances of this case may well have

proceeded from a deliberate decision made for

tactical reasons. The application for special

leave to appeal is therefore refused.

AT 2.25 PM THE MATTER WAS ADJOURNED SINE DIE

Waghorn 12/