Brown v State of Western Australia

[2012] HCATrans 156

[2012] HCATrans 156

Office of the Registry
  Perth   No P33 of 2011

B e t w e e n -

JODIE CECILIA BROWN

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 12.27 PM

Copyright in the High Court of Australia

MR A.C. McINTOSH:   If the Court pleases, I appear for the applicant.  (instructed by Thames Legal)

MR J. McGRATH, SC:   May it please the Court, I appear for the respondent with my learned friend, MS S.H. LINTON.  (instructed by Director of Public Prosecutions (WA))

HEYDON J:   Yes, Mr McIntosh.

MR McINTOSH:   Just briefly, the applicant in this case was found guilty of dangerous driving and her defence was really that the passenger pulled the steering wheel and was the real cause of the accident, and this is a third party – out‑of‑court third party confession supported by two witnesses.  Those witnesses’ evidence was held inadmissible insofar as it suggested that Mr Pitassi, the passenger, was the real cause of the accident.

Now, the point in this case – the issue in this case is the status of out‑of‑court third party confessions.  Your Honours, I do not wish to address that issue particularly because the debate is a debate that needs to be had – the Court is well aware of the Canadian and Australian authorities on the issue, and the points I do wish to address you on are two points – the importance of this debate and is it the appropriate vehicle?  Now, the reason why out‑of‑court third party confessions is an important issue is that the court – that this has been accepted practice in Canada and the United States.  It is a debate that should be had in this country at this level, the High Court level ‑ ‑ ‑

HEYDON J:   Debates on points however interesting and important are one thing, but what precise rule do you say this Court should adopt being a rule which would have assisted your client at the trial?

MR McINTOSH:   Your Honour, the frank answer to that question is that the rule that could have been adopted may not have assisted my client at the end of the day, but that is why ‑ ‑ ‑

HEYDON J:   We do not make a practice of giving advisory opinions on litigants in other cases, as distinct from deciding precise controversies in a way in which what we say might help or hinder one or other party.

MR McINTOSH:   The point your Honour is making ‑ ‑ ‑

HEYDON J:   If it would not have helped your client it will be an entirely academic advisory exercise.

MR McINTOSH:   Well, the possibility it may help the client is a real possibility because these confessions stand between my client and raising a reasonable doubt.  If the evidence of the two witnesses – I will not say independent – was accepted, and it goes to the evidence that the real cause of the accident was pulling the steering wheel, that is capable of raising a reasonable doubt at the end of the day if that evidence is accepted.  Now, what your Honour is referring to, I believe, is the test in America, the reliability test.  I do accept that there may be some problems about the reliability of the evidence of the witnesses, but I say in response to that that is a matter that is properly left to the jury. 

HEYDON J:   In other words, your rule of admissibility would not have, as a precondition, that the evidence possessed some measure of reliability?

MR McINTOSH:   Well, I would suggest it must have a measure of reliability, but that question of reliability is open on the facts of this case.  The issue in this case fairly and squarely raises that there are two witnesses who heard a confession out of court.  That is capable of being accepted.  I hesitate because I acknowledge that these witnesses have drug problems and may not be reliable at the end of the day, but just because a person has a drug problem does not make all the evidence at all times unreliable.

BELL J:   That may be so, but your opponent does in paragraph 3.6 at application book 128 and 129 set out in the succeeding nine subparagraphs a number of reasons why if, as a condition of admissibility, there is some requirement for reliability this case would not have met that.

MR McINTOSH:   That is a matter of debate.  Today is not the time to have that debate.  I acknowledge that the comments by my learned friend are arguable, but this is not the time to have that debate.

BELL J:   Well, it is if we are to determine whether this is a suitable case in which to consider the issue left unresolved in Bannon v The Queen.

MR McINTOSH:   But there is no compelling reason, in our submission, that evidence of the two witnesses will not be capable of acceptance or capably seen as reliable.  It is really a matter, at the end of the day, a matter for the jury to decide what weight, if any, is to be attached to the evidence.  Your Honours may not attach much weight but that is still a matter for the jury, in our case. 

I acknowledge that this is not the best vehicle to look at this important issue, but the question I put to the Court is this is an adequate vehicle for this important issue to be resolved.  This country needs to resolve an important issue, third party confessions for serious crime like murder.  It is an important issue.  It is an issue that has been entrusted to the jury.  In America and Canada these issues are trusted to juries. 

It is not immediately obvious why third party confessions in this country cannot be dealt with by a jury in this country.  Juries in our country are just as competent as juries in America and Canada.  It is an issue that was almost visited 17 years ago in the case of Bannon.  Now, the court did not deal with that case 17 years ago, has not dealt with third party confessions – out‑of‑court third party confessions in the last 17 years.  The time has come and there is a public need and a public interest that issues of third party out‑of‑court confessions can be left to the jury in appropriate circumstances.  This is not the best vehicle but this is an adequate vehicle.

HEYDON J:   Yes, thank you, Mr McIntosh.  We do not wish to call on you, Mr McGrath.

There is no prospect that were special leave to be granted the appeal would reach a conclusion that the law should be changed in a manner which would have led to the reception of the evidence which the applicant contends was admissible.  Accordingly, the application must be dismissed. 

AT 12.36 PM THE MATTER WAS CONCLUDED