Palmer v R [1992] HCA 11; (1992) 106 ALR 1; (1992) 66 ALJR 270 (9 April 1992)

HIGH COURT OF AUSTRALIA

JOHN WILLIAM PALMER v. THE QUEEN
F.C. 92/008

High Court of Australia
Mason C.J.(1), Dawson(1) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
9:4:1992

DECISION

MASON C.J., DAWSON AND GAUDRON JJ. The applicant, John William Palmer, was convicted upon nine counts of armed robbery, three counts of false imprisonment, two counts of burglary, two counts of theft, one count of intentionally causing serious injury and one count of aggravated burglary. It is common ground that the prosecution case against the applicant was dependent upon the evidence of the applicant's estranged wife, Darlene Joyce Palmer. However, there was some evidence, other than that of Mrs Palmer, that supported some of the counts.

2. The trial judge directed the jury that Mrs Palmer was an accomplice and that it was dangerous to convict upon her uncorroborated evidence. He also directed the jury that they must have regard to her credibility and pointed out that, amongst other things:
"(S)he admits to numerous convictions including convictions
for aggression, dishonesty and drug-related offences. She
has admitted telling lies to police officers in previous
statements and those lies were made on oath. She has also
told you, and admitted, that she has told lies to the
magistrate during the course of committal proceedings in
this case conducted in February of 1988.
... She has obtained an indemnity from the Director of
Prosecutions in relation to the proceedings before you. She
obtained that some time ago, and she made statements to the
police in August 1987, setting out a particular version of
these events, and it was quite recently, she told you, that
she had the indemnity explained to her, and as a result she
changed the version of her story and has told you the story
which you have heard in this court, which was substantially
different from that appearing in the statements which she
had made to the police in August 1987.
As I said, those statements she made in August 1987 were
made on oath, and subsequently she swore to the correctness
of those statements in February 1988 before the magistrate
in the committal proceedings."
3. The applicant sought leave to appeal to the Court of Criminal Appeal against certain of his convictions, relying on a single ground, namely, that the verdicts of the jury on those counts were unsafe and unsatisfactory. Reliance was placed upon the decision of this Court in Morris v. The Queen (1). [1987] HCA 50; (1987) 163 CLR 454. That case held that upon some occasions, perhaps relatively infrequent, the quality of the prosecution evidence may be such that no reasonable jury could have failed to entertain a doubt. In such a case - and the present case is clearly one - a court of criminal appeal is required to make its own assessment of the evidence in order to determine whether the verdict can be allowed to stand. Obviously in doing so the court does not have the advantage of seeing and hearing the relevant witnesses, but it is equipped in assessing the evidence to take into account those circumstances which may otherwise affect its nature and quality and is required to do so.

4. In the Court of Criminal Appeal, Vincent J. (with whom Gray J. agreed) expressed some difficulty in the application of Morris and made no reference to Mrs Palmer's position as an essential witness who, protected by an indemnity, was a self-confessed liar, prepared to lie on oath. Nor did Vincent J. attempt any evaluation of the evidence, other than that of Mrs Palmer, to see whether it assisted in any way in determining whether the jury could reasonably have acted on her evidence (2). cf. Chidiac v. The Queen [1991] HCA 4; (1991) 171 CLR 432. Vincent J. concluded:

"I can see no justification for any interference with the
jury's findings in the present matter which are clearly
dependent upon its assessment of the credibility of
Mrs. Palmer, and consider that the application for special
leave to appeal against conviction should be dismissed."

Similarly, the third member of the Court, O'Bryan J., observed:

"In my opinion, unlike Morris, where an appellate court was
able to carry out an independent assessment of the admission
evidence, the reliability of the tainted evidence in this
case was a matter for the jury."

5. Plainly this case called for an evaluation of the whole of the evidence and, in particular, the nature and quality of the evidence of Mrs Palmer, in order to determine whether the jury's verdict was unsafe or unsatisfactory. The Court of Criminal Appeal appears not to have undertaken this exercise. The parties were agreed that, should we reach that conclusion, the proper course to take would be to grant special leave, allow the appeal and remit the matter to the Court of Criminal Appeal to enable it to reconsider it in accordance with these reasons (3). cf. Jones v. The Queen [1989] HCA 16; (1989) 166 CLR 409. We propose to adopt that course.

ORDER

Application for extension of time in which to apply for special leave to appeal granted.

Application for special leave to appeal granted.

Appeal allowed.

Set aside the orders of the Court of Criminal Appeal.

Remit the matter to the Court of Criminal Appeal for determination in accordance with the judgment of this Court.