Williams v The Queen

[2001] HCATrans 383

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B7 of 2001

B e t w e e n -

BRIAN ANDREW WILLIAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 1.46 PM

Copyright in the High Court of Australia

KIRBY J:   Mr Bradley, our list is a little bit out of date but we did get a note from you earlier today saying that you would be appearing on this application and seeking an adjournment, is that correct?

MR B.A. BRADLEY:   Thank you, your Honour, yes.  I did come into the matter late and I apologise for the late delivery of that material.  (of Bernard Bradley & Associates).

KIRBY J:   No.  Well, we have seen that and read it.

MS L.J. CLARE:   I appear for the respondent, if the Court pleases.  (instructed by the Director of Public Prosecutions (Queensland))

KIRBY J:   Mr Bradley, a problem that occurred to me when I read the additional material and the basis of your application for adjournment to which I would ordinarily be sympathetic because your client, after all, is facing a very long sentence, but the matter that concerned me was that you appeared to be grounding your application on the fact that you want to get before this Court evidence relating to nail samples that were not before the court below, is that correct?

MR BRADLEY:   Yes, and I understand that would be in the nature of fresh evidence and Mickelberg - - -

KIRBY J:   Well now, you then run into the problem of what this Court has held in the matter of Mickelberg and, more recently, in the case of Eastman v The Queen, and if that is the case and if that is the only foundation for the application for adjournment, it would seem to me that we would have to refuse it unless you have some other ground.  Is there another basis  ‑ ‑ ‑

MR BRADLEY:   That, I believe is  ‑ ‑ ‑

KIRBY J:   Are you going to represent Mr Williams in his application, because it is always better if you can, that we have a lawyer before us.

MR BRADLEY:   Yes, I appreciate that, your Honour, but I am just not in a position to do that today, unfortunately.  I have not had – well, (a) not enough lead‑in time and my practice is such that I told Mr Williams some time ago I just would not be in a position to be able to represent him and I apologise.

KIRBY J:   If the matter were adjourned, would you be able to appear for him on the next return of the proceedings to put his case to the Court?

MR BRADLEY:   I had not given that terribly much thought, your Honour.  I would certainly be in a position to do that, I think, if I was able to find counsel to agree to act for Mr Williams on a pro bono basis but I really do not think that I could do ‑ ‑ ‑

KIRBY J:   You seem to be doing a pretty good job yourself.  Maybe you should look at the matter for yourself.  However, you are asking for an adjournment, but is it only on the basis of the fresh evidence because I do not think the Court could grant the adjournment on that basis because that is not a foundation that would get you into this Court even if you were to get the affidavit evidence before us.

MR BRADLEY:   That is correct, your Honour. Yes, the application is very shaky in that regard. I have really brought the application to potentially protect Mr Williams in the event that the Court of Appeal would not entertain an appeal on fresh evidence but I understand that pursuant to section 8 of the Supreme Court Act of Queensland that is highly likely that he will be able to if the nature of this evidence does turn out to be in his favour.  He would be able to go back to the Court of Appeal.  So, your Honour is quite right in that the fresh evidence point would – if that is the only point I am relying upon, my application here would fail. 

KIRBY J:   Do I therefore understand that the basis of your application is that your client contends that there is fresh evidence which he wishes to advance in a new application to the Court of Appeal of Queensland and because that may resolve the whole matter and obviate the necessity of coming to this Court, he wishes to proceed with such an application first and therefore asks that we adjourn his application to this Court.

MR BRADLEY:   Thank you.  Exactly, your Honour.  I heard in the Fitzherbert Case, I think, the Crown quoted a figure of 14 million to one chance that it was not Mr Fitzherbert.  That is a very poweful statistic to use and, indeed, if the DNA evidence under the fingernails turns out to be Mr Williams’, he may not be troubling this Court with his foreshadowed application on other grounds.

KIRBY J:   Yes.  Well, perhaps we should ask what Ms Clare has to say in relation to this application.

Ms Clare, what is the attitude of the Crown to the application for the adjournment?

MS CLARE:   The application is opposed, your Honour, notwithstanding the fact that it is a serious offence or the most serious offence ‑ ‑ ‑

HAYNE J:   Why does the Crown oppose an application for adjournment of an application for leave?  The applicant is in gaol.  What is the detriment that the Crown suffers if this matter stands over, Ms Clare?

MS CLARE:   The Crown suffers no further detriment other than ‑ ‑ ‑

HAYNE J:   Then why is the Crown opposing the application?

MS CLARE:   Simply because if ‑ ‑ ‑

KIRBY J:   What about the old principle that the Crown comes along to help the Court instead of making things difficult.

MS CLARE:   The Crown does its best, your Honour, but in this case the Crown submits that such an application or such prospects are really quite futile.  The defence submits that there is a possibility of fresh evidence.  The Crown says that, in fact, there is no real possibility of obtaining fresh evidence, that what in fact is sought is really quite fanciful.

HAYNE J:   Why not let all that play out in the course of time?  What does the Crown suffer by letting it all play out?  The applicant is not going anywhere.

MS CLARE:   No, I take your Honour’s point.  The only disadvantage is the inconvenience to the Court and to the parties, but I take your Honour’s point.

KIRBY J:   Well, it is generally more inconvenient to the Court not to have somebody before us who can advocate the case for the applicant and we have had some assistance from Mr Bradley today and we may get that in the future if he stays in it, and as Justice Hayne has said, the applicant is not going anywhere.  He wants to have this opportunity.  It would seem fair and just that he should have that opportunity and I think, therefore, we will grant the adjournment.  Is there anything else you wish to say?

MS CLARE:   No.

KIRBY J:   Well, you have your adjournment, Mr Bradley.  I hope this is the beginning of a great career before the High Court of Australia.

MR BRADLEY:   I very much appreciate your comments, thank you.

KIRBY J:   We will adjourn the hearing of this application until a date to be fixed by the Registrar after notification by both sides that the matter is ready to proceed in this Court.

The Court will now adjourn so that it can be reconstituted for the following matter in public chambers.

AT 1.53 PM THE MATTER WAS ADJOURNED