Allen v The Queen

[2011] HCATrans 270

[2011] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2011

B e t w e e n -

KANE RODNEY JONATHON ALLEN

Applicant

and

THE QUEEN

Respondent

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 28 SEPTEMBER 2011, AT 2.31 PM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR D. AGRESTA.  (instructed by Iles Selley Lawyers)

MR A.P. KIMBER, SC:   If the Court pleases, I appear for the respondent with MS J. LITSTER.  (instructed by Director of Public Prosecutions (SA))

MS SHAW:   May it please the Court, the applicant submits that the special leave question that arises for determination concerns the admission of evidence of a past violent relationship where, firstly, identity is in issue - here the accused put forward an alibi - and, secondly, absent the relationship evidence, there was no evidence implicating the accused in the crime.  The majority of the Full Court upheld the ruling of the learned trial judge, both in relation to the admission of the evidence and in relation to the use to which the jury could put the evidence upon her directions.

The applicant submits that where identity is in issue and the propensity evidence is an indispensable link to proof, the Pfennig test applies, not Wilson.  The important point of principle that we submit arises from this application has not been resolved by this Court in HML, but your Honour Justice Heydon observed in Roach that the issue of the admissibility of relationship evidence in common law jurisdictions was not affected by Roach, which of course South Australia is, and your Honour observed it is a fundamentally important question.

BELL J:   Can I just inquire whether this part of your argument depends upon a view that the circumstances of this case are to be distinguished from Wilson because, although the applicant was the person who found the body of the deceased and had been present with the deceased at the time -relatively close to the time that she met her death, nonetheless, there is an interval of time when, on his account, he was not present and there is a theory that a person other than the applicant might have come, killed the deceased and then left the scene as it was, some would say suggestive of suicide.  That is the posit, is it not, of this argument?

MS SHAW:   That is the first.  There is a second posit and it is this that, firstly, as your Honour has rightly pointed out, in Wilson there was no issue of presence.  The accused was admittedly present at the shooting.  Secondly, in Wilson, as former Chief Justice Barwick pointed out, once accident, which solely depended upon the accused’s explanation, was rebutted inevitably there was murder and, thirdly, it is a very strong case apart from the relationship evidence, as his Honour Justice Owen pointed out, that the jury were directed to limit its use to context so that this could not be seen - but dealt with in a vacuum and the relevance of the relationship evidence was to show mutual enmity existing at the time of the death.

In this case, however, there is a second very important factor and that is that alibi, that is the accused’s account that he was elsewhere, was consistent with suicide.  They were not alternatives.  The evidence pointing to suicide, as the dissenting judgment of Justice Peek details, was independent of any explanation of the accused, that is, the evidence in the shed that there was dust disturbed on the purlin, evidence of the weighted down barbecue, evidence of rope by the…..under the barbecue, evidence in addition of a crate and a chair nearby - under the dust - the disturbance, all of which provided an alternative route to an acquittal which did not depend upon anything that the applicant said.

BELL J:   Those matters to which you refer, I think in the reasoning of the majority, supported a view that either this was suicide or the evidence pointed to the applicant as responsible for the death of the deceased by reason of the extreme improbability of a stranger coming into the home, murdering a person and then creating a false appearance that the person had suicided.  If that reasoning is open and, for my part, it seems a reasonable line of reasoning, then the circumstances of this case would seem to be somewhat closer to Wilson.  One has a situation where instead of saying the gun went off accidentally, inviting consideration of matters, including what were the circumstances of this marriage like and an account, “My wife must have suicided”, inviting much the same inquiry.

MS SHAW:   Your Honour, we say, with respect, that that is the subtle inversion of the onus of proof.  The real question is how does relationship evidence exclude the alibi when the alibi was actually the subject of other evidence, namely from the neighbour who saw the accused leaving and secondly, the accused’s evidence that he had watched the television program - it was confirmed - and then returned.  So the relationship evidence had to somehow disprove that. 

But, your Honour, can I take your Honour to her Honour’s direction as to how this choice, that is the single issue, was formulated bearing in mind that alibi as well as an alternative route to suicide via the shed evidence, which as I pointed out was never left to the jury, how was the court able to come up with a single issue.  If your Honour goes to page 27 of the application book, your Honour will see that her Honour directs the jury that the way in which the relationship evidence resolves that single issue is not via the exclusion of the possibility that some third party might have been responsible for all this, but rather at line 10, the passage reads:

On the other hand, to the extent that you accept the accused was responsible for all or any of the injuries seen on the deceased and to the extent that you find the relationship was a violent one, those findings, along with views you take as to all the other evidence in the case, may induce you to conclude that the account given by the accused to the police of finding the deceased dead lacks credit and that the accused killed her. 

In other words, the focus is on the choice between him finding the deceased dead and suicide, whereas, in fact - and the relationship evidence, we say, with respect, could not inform whether or not the accused’s account of finding her dead, that is an hour after the alleged murder, lacked credit.  In essence, what her Honour has done is adopted the reasoning of his Honour Justice Barwick, former Chief Justice Barwick, in Wilson where his Honour in the context of the case where the – as I said, as your Honour has pointed out the accused was admittedly present - in the book of materials at page 122. His Honour Chief Justice Barwick said in the second last paragraph ‑ ‑ ‑

HEYDON J: This is 123 CLR at 337?

MS SHAW: Yes. I apologise, your Honour, 123 CLR 335 in particular at 337. If your Honours go to the second to last paragraph in the last sentence:

Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.

Her Honour has followed that formula for a case where the accused was absent and therefore identity had to be proved, that is, the relationship evidence had to point solely to the accused.  If the route was, as your Honour has raised, the improbability of somebody other than a person who has had a violent relationship committing this act, the relationship evidence is only able to refute that probability by propensity reasoning.  But more importantly, it is the only evidence that implicated him. 

We say, with respect, if it is the only evidence that implicated him, the Pfennig test or the test that this Court has referred to in Roach, the indispensable step in proof of guilt must be applied.  The evidence is highly prejudicial.  The only reasoning process available must be propensity because the evidence of violence that was relied on was an argument in December, some marks on the arm of grabbing in January, an altercation in May and a telegram in April and this event was in the end of July. 

In the meantime, as at the date of death, the applicant and the deceased were on amicable terms.  So this is circumstantial evidence of a past relationship which must prove every element of the offence and, in essence, the jury were directed to make that choice without having applied to that choice the reasoning that your Honour has suggested might be a route home. 

We say the effect of creating the single issue was to effectively deny the accused the route to an acquittal on the basis of the matters referred to by His Honour Justice Peek, that is whatever you make of the relationship evidence, the jury had to exclude the positive evidence in the shed, the evidence ‑ ‑ ‑

BELL J:   I am sorry, but I have difficulty quite understanding the significance that you attach to what you call “the positive evidence in the shed”.  On plausible theories of what led to the death of the deceased there was an issue as to whether she took her own life by hand or whether the applicant killed her.  How does evidence of signs consistent with suicide in a physical sense bear relevantly on the assessment of the credibility of the account that the applicant killed her and then made some attempt to make the death appear at her own hands?

MS SHAW:   Your Honour, because the evidence in the shed supported the alibi.  The theory that he might have faked the suicide depended on the Crown proving he was there.  Until they proved he was there, that is, resolved the identity issue, rebutted his alibi, then a theory that he faked the suicide had no legs.  So, in essence, it is this conflating of the issue without identifying the separate issues that were involved here that meant that the jury were not directed about the accused’s alibi.  There were no directions about the evidence supporting the alibi and there were no directions about the evidence that even if you rejected the accused’s account, therefore the accused was entitled to an acquittal.

BELL J:   The accused’s alibi is his account that he had gone home and watched television?

MS SHAW:   Yes.

BELL J:   I think there is some controversy between you and the respondent, concerning the significance of the evidence of the brother, is there?

MS SHAW:   The respondent, in the response, suggested there might have been some doubt about Ashleigh Allen’s evidence.  That was not the prosecution’s position at trial.  What the prosecution argued at trial was that yes, Ashleigh Allen did see him leave, because there was other evidence that the deceased was on her own after a certain point in time, but he had time to return unseen and he was lying when he said he watched the television, because clearly that was inconsistent with the notion of him having time, and that during that time of coming back all of this has occurred, without premeditation, because the prosecution case was that this was not premeditated, inexplicably, and then the prosecution theory was well he must have then set about faking all of this, even though there is only an hour between the time he leaves, the 20 minutes to return to and fro. 

So that theory, it was clearly a theory that was central to the prosecution case.  The real question was how did the relationship evidence – that is the propensity evidence – refute or prove that theory, apart from identifying the applicant as the offender?  In other words, it comes back fundamentally to the issue of if identity is in issue, as her Honour Justice Kiefel in HML made plain, her Honour Justice Crennan distinguished Pfennig on the basis of an identity issue, and in Pfennig, of course, the Crown had an hypothesis of drowning.

The argument in Pfennig was not are there two - is it drowning or murder?  The Crown had to exclude the hypothesis of drowning, which arose on evidence independent of the accused’s explanation before the propensity evidence could be used to identify him.  So, in other words here, because the independent evidence pointing to suicide was independent of the accused’s explanation it needed to be rejected as an alternative route to an acquittal. 

In other words, at the end of the day the direction that the jury was given to focus on a single issue of whether or not he found the deceased hanging, not on whether or not his alibi was a reasonable possibility, and find that his account, therefore, lacked credit, we say was a misapplication of Wilson and a dangerous one because, in essence, it is allowing his past violent relationship to be introduced where there are multiple issues and importantly identity is in issue and it is the only route to build on any theory. 

So we say, your Honours, as South Australia does not have legislation that governs the question that is raised in HML, HML remains a subject of controversy.  HML and Roach clearly deal with cases where identity is not in issue.  This is a case where the accused – it is a murder case.  The only evidence that has convicted him is relationship evidence and the directions, we say, inevitably meant that he would be convicted because the only use of the relationship to attack his account he found her hanging must mean that the only – without a reasoning process that your Honour Justice Bell has indicated might have been a possible reasoning process, that was the only route to build given.  Therefore, we say inevitably that reasoning process must have been one that involved propensity reasoning.

HEYDON J:   Some of your submissions concentrate on the direction.

MS SHAW:   Yes.

HEYDON J:   Was there any application to the learned trial judge for a redirection?

MS SHAW:   Your Honour, there was not, but the directions followed completely the ruling; that is, her Honour in ruling at pages 6 to 7 of the application book – if your Honour goes to page 6 of the application book, and in paragraph 13 her Honour rules that the use of the relationship is on the basis that there were two competing theories only, namely, suicide and murder and ruled at page 7 that just – as her Honour did at page 6 – just as the relationship in evidence in Wilson undermined the unlikelihood of accident, so too here her Honour reasoned that the relationship evidence undermined the unlikelihood of suicide, and we say that where there is independent evidence from the accused of that alternative explanation then Wilson does not apply because it is not his explanation.

BELL J:   I have some difficulty understanding that submission.  The accused in Wilson gave an account, the gun had discharged accidentally.

MS SHAW:   That is so.  Yes.

BELL J:   He might have said, “I was not in the field at the time”.  I would have thought that very much the same issues arise once you accept the force of Chief Justice Doyle’s reasoning at application book 83, paragraphs 32 and 33.  In essence, it is that there were two competing versions.

MS SHAW:   Well, that certainly goes to the issue of causation, namely, in terms of causation the issue was suicide or murder, but in terms of the other issues in the case, which are the issues relating to identity, then the only way identity was proved was by making the fact in issue the fact that the…..found her hanging rather than the fact in issue, have the Crown disprove the alibi, have the Crown prove he was there.  So the effect of the direction is to assume identity, that is, the direction itself proves he was there.  So instead of focusing on the time of the death, the focus is on an hour later and his finding of the deceased.  If, in fact, the Crown case and the evidence was that at the time he found the deceased that was the time of death, then we submit that clearly that might very well be a case like Velevski and Wilson where there were only two competing explanations.

Where the time of death is at a completely different point of time and it is his coming upon the deceased that is the focus of the relationship evidence, then his rejection – the rejection of his account through that proof by propensity reasoning that we say in essence means that the Crown – the accused is denied a route to an acquittal through the inability to prove – disprove the alibi and deprived of a route to an acquittal by the inability to disprove the independent evidence of suicide. 

Just like in Stevens, just because the accused puts forward an explanation here, even if it was an accident as in Stevens, it did not mean the Crown could dispense with disproof of other potential routes to acquittal that were clearly open on the evidence.  We say that is the effect of Stevens Case, that is the effect of Pemble and the line of cases which say it is up to the Crown to negative all rational hypotheses.  The difficulty of coining the single issue is, in effect, it denies the accused the right to an acquittal through alternative routes but it does make it plain relationship evidence is an indispensable link to proof and therefore it must, we say, have satisfied the Pfennig test for admission because it is clearly propensity evidence.  If the Court pleases.

HEYDON J:   Can I just ask you one question?  Your draft notice of appeal is on page 131 and grounds of the application book and grounds 2.1 and 2.2 are grounds, I think, your submissions have certainly been directed to.  You did not put any oral argument about grounds 2.3 to 2.5 and I think you put very little written argument to 2.3 and 2.4 and none at all to 2.5.  Do you cease to press 2.3, 2.4 and 2.5?

MS SHAW:   Your Honour, the direction of the oral and written argument is that the coining of a single issue was the reason for the party to present the defence case.  It was unnecessary.  So we rely on 2.4 in the sense that the effect of having a single issue was unnecessary for her Honour to refer to the independent evidence pointing to suicide because the only issue was, do you reject the accused’s account.  So, we say, in that respect his Honour Justice Peek’s dissenting judgment verifies that alternative route, but it is only in that respect that we have addressed 2.4 and clearly it goes to miscarriage.

HEYDON J:   So 2.4 is tied in with 2.1 and 2.2 in that way but 2.5 is not pressed and 2.3 is not really pressed as an independent ground.  Thank you very much.

AT 2.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.59 PM:

HEYDON J:   The Court need not trouble you, Mr Kimber.

The Full Court appears to be correct in concluding that the only rational hypotheses to explain the death of the deceased were either murder or suicide.  If the cause of her death were murder, there seems no reasonable alternative to the proposition that it was the applicant who was responsible for the murder.  The applicant was present shortly before the death and shortly after the death.

On the reasoning in Wilson v The Queen (1970) 123 CLR 334, in the present circumstances the evidence of acts of violence by the applicant on the victim would be admissible and the direction in relation to that evidence would not be impeachable. The applicant submitted that Wilson v The Queen was distinguishable.  There are insufficient prospects that that argument would succeed in the Full Court were special leave to be granted.  Accordingly, we dismiss the application.  We are grateful to counsel. 

The Court will adjourn until 9.30 tomorrow.

AT 3.01 PM THE MATTER WAS CONCLUDED