R v Hillier(68)

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ
• Judgment Date: 12 March 2007
• Neutral Citation: 2007-0322 HCA B,[2007] HCA 13
• Docket Number: C1/2006
• Date: 12 March 2007

[2007] HCA 13

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ

C1/2006

The Queen

Applicant

and

Steven Wayne Hillier

Respondent

Representation

D F Jackson QC with P J de Veau for the applicant (instructed by Director of Public Prosecutions (ACT))

P F Tehan QC with W P Lowe for the respondent (instructed by Nelson & Co)

Supreme Court Act 1933 (ACT), Pt 2A.

The Queen v Hillier

Criminal law — Criminal appeals — The respondent appealed to the Court of Appeal of the Australian Capital Territory against his conviction for murder — The Court of Appeal quashed the conviction and entered verdict of acquittal — Whether Court of Appeal erred in quashing the verdict of the jury — Nature of appellate jurisdiction where no common form criminal appeal statute is enacted — Extent of duties and powers given to the Court of Appeal under Pt 2A of the Supreme Court Act 1933 (ACT) — Principles governing the exercise of those duties and powers — Whether in this case it would have been unjust or unsafe for the Court of Appeal to allow the verdict to stand.

Criminal law — Criminal appeals — Prosecution appeal to the High Court of Australia against verdict of acquittal entered by intermediate appellate court — Circumstances in which special leave will be granted.

Criminal law — Evidence — Circumstantial evidence — Whether the Court of Appeal erred in reasoning that, because evidence looked at in isolation from other evidence was consistent with innocence, the conviction should be quashed — Whether the Court of Appeal should have considered whether it was open to the jury, on consideration of the whole of the evidence, to be satisfied beyond reasonable doubt that the respondent was guilty.

Words and phrases — ‘unjust or unsafe’, ‘unsafe or unsatisfactory’.

ORDER

Special leave to appeal is granted.

2. The appeal is treated as instituted and heard instanter and allowed.

3. The orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 15 December 2005 are set aside and the matter is remitted to that Court for rehearing.

1 Gleeson CJ. I have had the advantage of reading in draft form the reasons for judgment of Gummow, Hayne and Crennan JJ (‘the joint reasons’) and the reasons for judgment of Callinan J. They would allow the appeal from the decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory, but on different grounds, and with a different outcome. I agree with the joint reasons, and with the orders they propose.

2 The ground of appeal that succeeded in the Court of Appeal was that the verdict of the jury was unsafe and unsatisfactory. The sense in which that expression was relevantly understood in the Court of Appeal, both by counsel and the members of the Court, appears from the way in which the majority in the Court of Appeal expressed their conclusion. They held that it was ‘impossible … to conclude that it was open to the jury to find that the guilt of the [accused] had been proven beyond reasonable doubt’ and that, for that reason, ‘a miscarriage of justice may well have occurred’.

3 As to the ground upon which Callinan J proposes that the appeal be allowed, and a new trial ordered, I would note the following. Although the majority in the Court of Appeal, in the course of considering the evidence about motive, commented adversely on what they regarded as the ‘potential unfairness’ of not putting to Mr Hillier in cross-examination a proposition that was put by prosecuting counsel in final address, that was not the ground on which they decided the case. As senior counsel for Mr Hillier acknowledged in the course of his argument in this Court, the suggested failure to put a matter in cross-examination was not the subject of a ground of appeal in the Court of Appeal, and had not been the subject of any complaint by trial counsel. If trial counsel had raised the suggested unfairness at trial, it is the kind of problem that could have been dealt with by the trial judge in his summing-up to the jury. Any unfairness of the kind now complained of could have been remedied at trial. It was not considered by Spender J in his dissenting judgment in the Court of Appeal even though, if it had been raised, he would have had to deal with it before concluding, as he did, that the appeal should be dismissed.

4 If the point had been raised, and dealt with as a ground of appeal, I would have thought that the cross-examiner gave the witness a fairly blunt indication of what he was suggesting. He put to the witness that, at the time the telephone calls stopped, the witness was beginning to despair of his prospects of appeal (from a court order concerning custody of the children) and suggested that the witness had decided to take the law into his own hands. In context, that can only have meant the witness had decided to kill the victim. The failure of experienced trial counsel to complain that the submission put to the jury in final address was unfair, or unavailable, because of the course taken in cross-examination, strengthens this impression. Furthermore, if the point had been argued as a ground of appeal, and had been upheld, there would still have been a question whether, standing alone, it would have warranted a quashing of the conviction. That question was not addressed by any member of the Court of Appeal.

5 As to the ground of appeal that succeeded in the Court of Appeal, I agree with what is said in the joint reasons. The result is that the respondent's case on appeal was not decided according to the applicable legal standards. It does not follow that his case was bound to fail. This court is not a court of criminal appeal. There is a reluctance to grant special leave to appeal against an acquittal such as occurred here, sometimes expressed by reference to a need to show ‘very exceptional circumstances’ 1. I would grant special leave, but for the purpose, upon allowing the appeal, of remitting the matter for further consideration as proposed in the joint reasons.

6 Gummow, Hayne And Crennan JJ. On 2 October 2002, Ana Louise Hardwick was found dead in her bedroom. There had been a fire in the room but she had died before the fire. She had a skin abrasion on her nose and a complex abraded injury predominantly to the left side of her neck. She had small bruises on the outer aspect of each wrist, one measuring two centimetres, the other measuring four centimetres. The cause of her death was neck compression, though the pathologist could not say whether as a result of ligature, rod or manual strangulation.

7 The respondent, Steven Wayne Hillier, was charged with Ms Hardwick's murder. Mr Hillier and Ms Hardwick had lived together for about 12 years, from 1987 to 1999. They had two children.

8 When the couple separated in 1999, they agreed that the two children would live with their father. In June 2002, on Ms Hardwick's application, the Family Court of Australia ordered that the children reside with her. Pending an appeal against those orders by Mr Hillier, orders were made that the children live week and week about with each parent, but those interim orders were discharged on 20 September 2002, with the result that the orders for the children to reside with their mother took effect. The prosecution's case at Mr Hillier's trial was that he murdered Ms Hardwick to regain custody of his children.

9 Mr Hillier was tried in the Supreme Court of the Australian Capital Territory by Gray J and a jury. The trial occupied 15 days but the jury deliberated for only a few hours before returning a verdict of guilty.

10 Mr Hillier appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory against his conviction. As finally amended, his notice of appeal stated six grounds. The first two grounds alleged that the verdict was ‘unsafe and unsatisfactory’ and was ‘against the evidence and the weight of the evidence’. Other grounds alleged errors in the judge's charge to the jury and in the judge not excluding certain evidence. It is not necessary to notice the detail of these other grounds.

11 The Court of Appeal held, by majority (Higgins CJ and Crispin P; Spender J dissenting) 2, that the appeal should be allowed. The only orders the Court made were that the appeal be allowed and the conviction and sentence be set aside. No order was made directing entry of a verdict of acquittal, although it would follow from the reasons given by the majority of the Court of Appeal that such an order should have been made.

12 The Director of Public Prosecutions seeks special leave to appeal against those orders. He contends that ‘this was an inappropriate case for the Court of Appeal to set aside the verdict of the jury’ and that the majority of the Court of Appeal ‘erred in combining a series of factual matters which each had little or no evidentiary foundation in order to find a real possibility that the respondent did not commit the murder’. The Director contends that the interests of the administration of justice in the particular case warranted the grant of special leave to appeal 3. The application for special leave was referred for argument before the whole Court as on appeal.

13 To examine the parties' submissions it will be necessary to examine the reasons of the Court of Appeal, and the evidence given at trial. Before embarking on that task, however, it is essential to begin by considering the statutory framework within which the questions that arise in the matter must be identified and considered.

Criminal appeals in the Australian Capital Territory

14 Criminal appeals from the Supreme Court of the Australian Capital Territory have never been governed by legislation of the kind, long found in each of the States of the Commonwealth 4, which derives from the Criminal Appeal...