White v The Queen [2006] HCATrans 467 (1 September 2006) Last Updated: 20 September 2006 [2006] HCATrans 467
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P10 of 2006
B e t w e e n -
GARY ERNEST WHITE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON FRIDAY, 1 SEPTEMBER 2006, AT 11.25 AM
Copyright in the High Court of Australia
MR S.A. SHIRREFS, SC: If the Court pleases, I appear on behalf of the applicant. (instructed by
Holborn Lenhoff Massey)
MR K.P. BATES: If the Court pleases, I appear on behalf of the respondent with my learned friend,
MR L.M. FOX. (instructed by Director of Public Prosecutions for Western Australia) GUMMOW J: Yes, Mr Shirrefs.

MR SHIRREFS: Your Honour, this application concerns a fairly narrow issue, and that is the sufficiency of the warning or directions given by the primary judge as to the dangers associated with or the need to scrutinise the fundamental witness for the prosecution in this case, Sidney Reid. What is
submitted was the failure to the extent that his Honour made comments and/or gave warnings, failed to
articulate sufficiently the significant matters that underpinned the warning that he gave to the extent that he gave it. The summary of argument articulates, particularly in paragraphs 22.6 to 22.8 at page 135 of the application book, two specific areas of significance which were not directed to the attention of the jury; in particular, the motive that Reid had to lie, the significance of the sequence of events that underpinned that motive - and in due course I will come to what the primary judge did say, which in
fact contained an error - and significantly the other matter which is spoken of in 22.7, that Reid, having
made a statement implicating the applicant in the commission of the crime of which he was convicted,
then made undertakings to testify in accordance with that statement, knowing, as he agreed in evidence
in cross-examination, that a failure to comply with his undertaking would render him being exposed to
being re-sentenced with respect to the crime of murder that he had already pleaded guilty to.
HAYNE J: Was the fact of the undertaking before the jury?
MR SHIRREFS: The fact of the undertaking was before the jury.
HAYNE J: Were the terms of the undertaking before the jury?
MR SHIRREFS: Yes, they were. What was not before the jury, except to the extent that it was
acknowledged by Reid, was that if he failed to comply with the undertaking, he would be exposed to
being re-sentenced.
HAYNE J: Was that apparent from the undertaking itself as disclosed to the jury?
MR SHIRREFS: I believe it was not, and that is what is articulated in paragraph 22.7 and expanded
further in 22.8. Now, to the extent that that was mentioned in evidence-in-chief; in fact, in
cross-examination, by Reid when cross-examined – and your Honours will find in the application
book in the summary of argument at page 132, if I could start with 19(i), that he agreed under
cross-examination that he had been told by his solicitor that if he co-operated with the police and
“involved other people who may be responsible for serious crimes”, then he would get a further
reduction in his non-parole period; (k) he did not care who he nominated to the police as a criminal
offender, as long as he got his sentence reduced.
Then he made the statement implicating the applicant on 24 March 2002. He gave undertakings on
25 March 2002, and was then before the court to be sentenced on 27 March, and in paragraph 19(p) at
the bottom of page 132 he agreed in cross-examination he then proceeded to give statements whenever
the police requested because if he did not then he would put in jeopardy the lower sentence that he
received on 27 March 2002. In other words, he conceded in cross-examination that he was aware that
if he did not stick to the statements and the undertakings that he had given, he would be exposed to
have any sentence re-evaluated.
That is also set out at page 133 of the application book which sets out in paragraph 20(a), (b), (c) and
(d) the consequences in relation to the signing of the undertaking and what Reid understood would be
the consequences of his failure to comply with it.
HAYNE J: Now, these then were facts that were before the jury?
MR SHIRREFS: They were facts before the jury.
HAYNE J: And the use that was to be made of them depended on the way in which counsel
addressed?
MR SHIRREFS: Yes.

HAYNE J: The significance of them was something that was to be assessed having regard to the trial
as a whole?
MR SHIRREFS: It was a matter that was in evidence before the jury. The significance of it to the
extent that it underpinned the need for the warning was not brought to the attention of the jury in the
course - - -
HAYNE J: And there was no exception taken to the way in which the corroboration issue was dealt
with?
MR SHIRREFS: Exactly. The point is simply articulated in the way in which your Honour has
identified it, but it is submitted that this was a significant matter to the extent that it needed to be
brought to the attention of the jury in the course of the primary judge’s directions as to the warning
that he gave and the reasons why the warning was being given in this case.
HAYNE J: But the proposition for which you contend in this Court is at page 136 of the application
book, paragraph 26:
that the warning –
that is the corroboration warning –
must –
I take that to be a reference to be a proposition of law:
the warning must –
as a matter of law –
contain a reference to each and all of those matters of significance - - -
MR SHIRREFS: The cases that are cited directly above on page 136 under heading of paragraph 25,
in particular Spencer, Chai, Button and other cases referred there support the proposition, it is
submitted, that it is incumbent upon the primary judge not just to give the incantation of the warning
but to explain to the jury the reasons it is being given, so that they can assess the significance of it by
reference to the facts in the case that underpin it.
There were significant facts in this case that underpinned the need for this warning which were not
articulated by the primary judge, and notwithstanding the fact that no exception was taken by counsel
then appearing on behalf of the applicant it is submitted that that should not stand in the way of an
application for special leave being granted where it is submitted on behalf of the applicant that the trial
has been rendered unfair. Beyond that I simply rely upon the other matters that are articulated and
contained within the application book. If the Court please.
GUMMOW J: Thank you, Mr Shirrefs. Yes, Mr Bates.
MR BATES: May it please the Court, in the respondent’s submission the warning was more than
adequate and every matter of significance was mentioned and the jury could not have failed to
understand the dangers of acting upon the evidence of Reid. No exception was taken to the warning by
counsel who represented the applicant at trial.
In our submission, the learned trial judge gave a clear and emphatic warning about the danger of acting
on the evidence of Reid. In discussing the evidence of Reid the learned trial judge commenced by
saying that the jury may well find that Reid had been given very considerable advantages as a result of
co-operating with the police. Reference was made to the minimum 15-year term which he received, the
fact that Reid had received protection and the fact that arrangements had been made for his girlfriend to
visit him in custody.
Reference was made to the undertakings that Reid had given in relation to the matter and those
references I will take the Court to it now. It is at application book page 23 line 15, and this is in the
trial judge’s charge to the jury, and it commences halfway through that last passage on that particular page: I remind you that Mr Reid had also given undertakings to give evidence in relation to the Ora Banda bombings. That occurred in October and November 2000 and in addition he undertook to give evidence in relation to this matter, and I particularly refer you to exhibit 12B which was Mr Reid’s undertaking in relation to the matter that we are here about. There is a book of transcript which has been provided by the solicitors for the applicant and if I can take the Court to that transcript and to that book of transcript and take the Court to page 336 in the re-examination of Mr Reid. So it is the application book that is headed “TRANSCRIPT”. It is the re-examination of Mr Reid and it is at page 336. The questioning begins in the first full question on that page:
Did you also sign a similar undertaking on the same day, 26 March 2002 in relation to the
death of Anthony David Tapley?---Yes.
In that undertaking did you, Sidney John Reid, undertake “(a) to give evidence for the
crown in any proceedings –
and that just relates to the Tapley matter –
(b) that in giving evidence in any proceedings referred to in (a) above –
that is the Tapley matter –
I shall fully, frankly and honestly detail my involvement and that of all other persons
concerned as set out in my deposition dated 24 March 2002 which is attached
herewith”?---Yes.
Of particular significance is the section 37 point that if he did not give truthful evidence in accordance
with his statement he may be brought back and re-sentenced and he was then asked:
Did you also state in that undertaking in relation to the death of Tapley, “In particular, I
understand that if a court reduces the sentence it would otherwise have imposed on me for
the offences of wilful murder of Hancock and the murder of Lewis on 1 September 2001,
Lathlain, in the state of Western Australia because of my undertaking to assist law
enforcement authorities and I subsequently fail wholly or partly fulfil the undertaking, the
court may recall the orders imposing the sentences and impose sentences based on the full
sentences but taking into account the extent to which the reduced sentences have taken
effect and the extent to which I have complied with any orders made under them?” Did
you sign an undertaking to that effect?---Yes.
What did you understand would happen if you didn’t give evidence fully, frankly and
honestly about both the Ora Banda bombings, the death of Hancock and Lewis and the
death of Tapley?---I could be [brought] back before the courts and have my sentences
re-evaluated.
The actual undertaking itself was tendered through the evidence of the witness, Caporn, and if I can
take the Court to page 222 of the transcript book that has been provided to the Court. At 222, it is
towards the bottom of the page, the exhibit, the undertaking, was read out to the court by the witness,
Caporn, in full and it was then tendered and reference is made at the bottom of the page:
I tender the single page undertaking in relation to the death of Anthony David Tapley
dated 26 March 2002.
It is admitted as 12B. So going back to the application book itself, at the bottom of page 23 of the
application book, the learned trial judge reminded the jury that Reid had given an undertaking in relation to the Ora Banda bombings and also had undertaken to give evidence in this matter and the trial judge importantly said: and I particularly refer you to exhibit 12B which was Mr Reid’s undertaking in relation to the matter that we are here about. So the learned trial judge specifically referred the jury to that exhibit, that undertaking -the terms of the undertaking had been read to the jury by both the police officer, Caporn, and also by Mr Reid in his re-examination. So they were before the jury twice during the course of the trial and his Honour in the course of his charge specifically directed the jury to refer to that exhibit. So, in our submission, the fact that Reid may be brought back and re-sentenced if he failed to give full, frank and truthful evidence in accordance with his deposition was a matter which was well placed before the jury. My learned friend in outlining some matters in paragraph 9 of the applicant’s outline of submissions referred to paragraph 19(k) which was a reference to Mr Reid being indifferent to any person he nominated. If I can take the Court to appeal book 61 where this is dealt with by the Court of Appeal below, at paragraph 26 of the judgment of Justice Wheeler in the Court of Appeal: The appellant’s counsel on the appeal suggested to us that Reid had agreed with the proposition that he did not care who he nominated, as long as his sentence was reduced.
The relevant passage of cross-examination however, does not support that submission. It
reads:
“You were indifferent to any person that you nominated. You didn’t care
who you nominated as long as you got your own sentence reduced?---That’s
your opinion, yes.”
So, in our submission, paragraph 19(k) of the applicant’s outline of submissions does not support the
evidence at the trial.
GUMMOW J: We do not need to hear any further from you, Mr Bates.
MR BATES: May it please the Court.
GUMMOW J: We will hear anything that is put in reply.
MR SHIRREFS: There is just one matter in reply. To the extent that I mistakenly believed the
undertaking did not contain that reference, I apologise. I believed it did not. Your Honour, nothing
further to add.
GUMMOW J: Yes, thank you.
The applicant was convicted in the Supreme Court of Western Australia of wilful murder. The
conviction followed a jury verdict after a trial before Justice Scott and jury. The applicant appealed
against his conviction to the Court of Appeal of Western Australia but that court dismissed the appeal.
The appeal turned substantially on the suggestion of unreliability of the evidence of a witness, Sidney
Reid, which was critical to the prosecution case.
The applicant argues that the direction to the jury by the trial judge on the approach that they should
take to the evidence of Mr Reid fell short of that required in a case of alleged corroboration. The
complaint is that the warning given to the jury fell short of that required by law. There was a question
identified by the Court of Appeal concerning the application of section 50 of the Evidence Act 1906
(WA) on corroboration warnings.
However that may be, we agree with the conclusion of Justice Wheeler in the Court of Appeal that the
corroboration warning in this case was adequate and appropriately detailed and specific. We are not
satisfied that if special leave were granted further argument would result in an allowing of the appeal.
Nor are we convinced that a miscarriage of justice has occurred in this matter. The point now argued,
we note, was not raised by trial counsel. Accordingly, special leave is refused.
AT 11.42 AM THE MATTER WAS CONCLUDED