Williams v The Queen

[1998] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 1997

B e t w e e n -

VICTOR ALLEN WILLIAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 11.49 AM

Copyright in the High Court of Australia

MR A.J. RAFTER:   May it please the Court, I appear for the applicant. (instructed by Legal Aid Office (Queensland))

MR R.G. MARTIN:   May it please your Honours, I appear with my friend, MR T.A FULLER for the respondent. (instructed by the Director of Prosecutions (Queensland))

McHUGH J:   Yes, Mr Rafter. 

MR RAFTER:   Your Honours, judgment was given in this matter by the Court of Appeal on 13 December 1995 and the application for special leave was made on 12 August 1997, so it was out of time by quite some margin.

McHUGH J:   Twenty months.

MR RAFTER:   Yes.  It is therefore necessary to seek an order under Order 69A rule 3.

KIRBY J:   It is suggested that for four months of the 20 months you had chosen not to proceed.

MR RAFTER:   Yes, that is correct.  The circumstances explaining the delay are contained in an affidavit of Timothy Forbes Harland, which is at page 49 and following in the application book.  A summary of the contents of the affidavit is there was delay by counsel then representing the applicant, initially, the applicant having very quickly, after the judgment went against him in the Court of Appeal, deciding to apply for legal aid for the purpose of an application for special leave.  Thereafter, there was delay by counsel then briefed. 

McHUGH J:   I think you might go to the issues.

MR RAFTER:   The applicant had been convicted of murder of his wife, by strangulation.  The offence was alleged to have occurred on 1 June 1994.  The defence conducted at the trial was diminished responsibility.  There were three psychiatrists who gave evidence.  One testified that he had no defence.  That was Dr Reddan.  Two psychiatrists gave him a defence of diminished responsibility.  That was Dr Edwards and Dr Mulholland.  The elements of the defence, as explained by the learned trial judge to the jury, appear at pages 7 to 9 of the application book. 

Then, his Honour commences to summarise the evidence of each of the three psychiatrists.  Dr Reddan’s evidence is dealt with at pages 10 to 12 of the application book.  Dr Edwards at pages 12 to 15, and I do not need to take the Court to those, except to say that Dr Edwards supported the proposition that the applicant’s capacity to control his actions and his capacity to know that he ought not do the act was substantially impaired, thereby giving him a 304A defence of diminished responsibility.  Dr Mulholland’s evidence is dealt with in the summing up at application book pages 15 to 16 and the impugned direction is at page 15, commencing at about line 35 and finishing at about line 40.  The judge is recorded in the summing up as having said Dr Mulholland:

did not think that there was any impairment of the capacity of the accused to understand what he was doing at the time of the killing; nor did he consider that there was any impairment of the accused’s capacity to control his actions.

That did not conform to the evidence that Dr Mulholland had actually given.  I should take the Court to application book page 16, where the judge is dealing with the directions given by the learned trial judge to the jury in summarising the arguments put by counsel appearing for the applicant at the trial and counsel for the Crown.  Counsel for the applicant is recorded at page 16, line 36, as having said:

Dr Edwards and Dr Mulholland both agreed, at least with respect to one relevant capacity - namely the capacity to control actions - that it was substantially impaired at the time of the killing.  She -

that is counsel -

submitted to you that you would not reject the evidence of those psychiatrists.

And then his Honour goes on to deal with - - -

KIRBY J:   We know all this.  This is all set out in the Court of Appeal.  There is a question of what he said, and there is what the transcript says, and there is what the judge in his report says he said.  It is a factual matter.  The Court of Appeal decided against your client, save for the fact that your client has been convicted of murder - and it is a very serious case.  There is the fundamental problem you have got to overcome and that is that this is a line or so in the judge’s direction and the real issue was presented to the jury.  It could not have been, on the whole, more clearly put.  If there was a slip, then that was a small slip.  No point was taken by counsel at the trial and the fundamental question was fresh in their mind, and was put to them, which medical evidence they accepted, it seems impossible to think that they would not have addressed that question correctly.  The Court of Appeal found, as a matter of fact, that what the judge said was what he says he said in his report.

MR RAFTER:   In actual fact, what the judge had said in his report was that he could not actually remember what he had said in the summing up ‑ ‑ ‑

McHUGH J:   He had his notes ‑ ‑ ‑

MR RAFTER:    ‑ ‑ ‑ but he did have reference to his notes, which did not contain the error.  But the judge’s report did not in fact say that he was certain that the notes were correct.

KIRBY J:   But why would we get involved in (a) a consideration of what a judge in a particular trial said when - this is a factual issue that was dealt with after a lot of careful submission and thought in the Court of Appeal, and (b) where, in any case, the substantive issue is clearly fresh, tendered and no point was taken and could hardly have been mistaken by the jury.

McHUGH J:   And you had two specific and accurate references to the evidence almost immediately after the alleged error.

MR RAFTER:   Yes.  Mr Justice McPherson refers to those in his judgment; however, Mr Justice Davies in his judgment was prepared to assume that if satisfied there had been the error, then it would have been probably necessary to order a new trial.  Sometimes a slip of this nature on an important topic can justify the ordering of a new trial.  In Jiminez (1991) 53 A Crim R 56, in the Court of Criminal Appeal New South Wales - in fact, in your Honour Justice Kirby’s decision when your Honour was then President of the New South Wales Court of Appeal. Your Honour would ‑ ‑ ‑

KIRBY J:   Is that the case of the drink driving?

MR RAFTER:   Yes.

KIRBY J:   That went to the High Court and was reversed.

MR RAFTER:   Not on this point, your Honour.

KIRBY J:   I am relieved to hear it.

MR RAFTER:   Your Honour, at page 62 said:

I deprecate the microscopic analysis of transcript of judicial communication with the jury, searching for a chance word of imprecision to gain relief in the appellate court.

Your Honour went on to say:

I do not deny that in some cases a phrase, or even a single word, of judicial instruction could be so vital as to require that the verdict be set aside.

But your Honour said that Jiminez was not such a case.  The same applies here.  This was a vital matter in the defence case, a defence of diminished responsibility.  The Court may grant special leave, notwithstanding there is no generally important point involved, if it is necessary in the interests of the administration of justice in the particular case.  This was a conviction for murder.  A slip arguably occurred, even though it was not found by the Court of Appeal to have occurred.  In those circumstances, in my respectful submission, there should be a grant of special leave.  The Recording of Evidence Act actually provides that the evidence of a properly prepared transcription is evidence of what was said in the trial.

McHUGH J:   But that is what it is, evidence, is it not?  Surely it cannot be conclusive evidence.

MR RAFTER:   No, the section does not say it is conclusive and I do not argue that one has to ignore other pieces of evidence that might point in a different direction.  This was a summing up that was revised and found its way into the appeal record for the purpose of the appeal to the Court of Appeal.

KIRBY J:   Revised?  It cannot be revised to alter matters of substance, at least as far I know.  Charges to juries must come to appellate courts as they were said.  A misspelling or a misunderstanding or a word can be fixed up, but no substantive can be made.

MR RAFTER:   No substantive change in what was actually said to the jury can be corrected.  But if the judge in revising this summing up had noticed the error, his Honour could have corrected it, if his Honour was satisfied there had been an error.  Of course, the judge could not remember exactly what he had said, apart from saying that he read from his notes; they did not contain the error.

KIRBY J:   That is hardly surprising.  I mean, we do not remember everything we do in every case.

MR RAFTER:   No.

KIRBY J:   It would be terrible if we did.

McHUGH J:   What is your present position?  The application book seeks special leave to determine whether an appellate court is bound to regard the transcript as conclusive evidence of what was said in the summing up.  You seem to have abandoned that now.

MR RAFTER:   I cannot make the submission that it needs to be conclusive evidence.  One could not possibly ignore other pieces of evidence, but it is a substantial piece of evidence, the transcript of the summing up, to which regard should be had.

McHUGH J:   What is the special leave point, then?

MR RAFTER:   The special leave point involves a consideration of the interests of justice in this particular case, since the conviction is for murder.

KIRBY J:   You have to say that if there is a chance that a slip occurred, because a court cannot know on what basis a jury determines a matter - they may have determined it on the basis of the slip - and that therefore in the defence of a trial according to law, your client is entitled to have the matter relitigated, redetermined by a jury without the slightest possibility of the slip.

MR RAFTER:   Yes.  Those are my submissions, your Honour.

McHUGH J:   This case does not involve any point of general principle.  There is no reason to doubt the correctness of the decision below.  The application is 30 months out of time.  In the circumstances, the proper order is that the application for an extension of time be refused.

AT 12.01 PM THE MATTER WAS CONCLUDED