Banks v The Queen

[2004] HCATrans 432

[2004] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P62 of 2003

B e t w e e n -

BRIAN CHARLES JAMES BANKS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.44 AM

Copyright in the High Court of Australia

MS G.A. ARCHER:   May it please the Court, I appear for the applicant.  (instructed by Director of Legal Aid)

MR B. FINNNACA:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

HAYNE J:   Yes, Ms Archer.

MS ARCHER:   Your Honours, the applicant was involved in an unnatural death.  Afterwards, he tried to cover up what had happened.  The question is, on a charge of wilful murder, must a jury be told that they cannot use the evidence of a cover up to prove an intention to kill if it was possible that Banks was trying to cover up his involvement in a murder, a manslaughter or even an unnatural death.  The importance of this case stems from a number of factors:  firstly, post‑offence conduct is particularly susceptible of being misused by a jury; secondly, the issue is one that is relevant across all States in Australia; and, thirdly, the issue commonly arises in homicide cases where the consequences of the liberty to the accused are obviously significant. 

It is further submitted that there is a divergence of opinion between the various jurisdictions.  In my submission, Queensland, South Australia, Victoria, Canada and England support the applicant’s position whereas the Western Australian courts do not.  The Western Australian courts also have relied on a 1989 Victorian decision of Woolley in support of its position.  The Western Australian court has also said that Woolley was followed in a later Victorian decision of Rice.  In my submission, with respect, that is not so. 

As far as the High Court is concerned, this issue has only been obliquely addressed in the obiter dictum remarks of Justices Gaudron and Gummow in Osland v The Queen.  The most useful authorities from the other jurisdictions are from Queensland, Box and Martin, Wehlow and M.  In Victoria there is Nguyen and also Rice.  The English cases, Richens is the one that is most often cited and from Canada, White and Arcangioli, all of which are on the applicant’s list.

It seems that one of the primary reasons expressed by the Court of Criminal Appeal in refusing the applicant’s appeal to that court was that it distinguished the situation before it from the other cases on the basis that in Banks there were multiple issues whereas, it was said, in many of those other cases there was only a single issue in dispute.  That particular point is addressed in the applicant’s summary of argument at paragraphs 8 to 10.  As a matter of logic, it is submitted why should it be, where a jury is faced with multiple issues, that it is given less assistance than a jury faced with a single issue?

HAYNE J:   Now, at the point the case went to the jury, there had been a plea of not guilty, there had not been a plea of guilty to manslaughter which the Crown had not accepted.  What was the state of the case at the point it went to the jury?

MS ARCHER:   From the point of view of his Honour the trial judge, the state of the case was that all issues were in dispute.

HAYNE J:   Thus, one of the issues was responsibility for the killing. 

MS ARCHER:   That is quite correct, your Honour.  Defence counsel urged the jury to convict Mr Banks of manslaughter but his Honour directed the jury about all of the issues, including whether or not he had even caused the death.

HAYNE J:   Your complaint is not that the post‑offence conduct was admitted in evidence; your complaint is about the directions.  What direction was sought, as distinct from directions about lies?  I understand there was a debate about Edwards‑type issues.

MS ARCHER:   The directions that were sought are set out in the transcript at application book – it is in paragraph 3 of the applicant’s outline.

HAYNE J:   Transcript 1094 which is at application book 111 and then again at 1099 through to 1110, which is 116 and following, is that right?

MS ARCHER:   Those are actually the trial judge’s directions about the issue.  The references in the summary of argument are slightly down from where they should be.  The actual request for redirection is, I think, at application book page 163.  It begins right at the bottom of application book page 163 at about line 46.

HAYNE J:   Those were requests for redirections about Edwards‑type issues, were they not?

MS ARCHER:   It was specifically in relation to the issue of whether the lies could go to a consciousness of guilt of wilful murder.  At the top of page 164 defence counsel points out his submission that:

It’s not sufficient that he has lied because of fear of an unlawful killing . . . The lies have got to be told because of a realisation of guilt of the offence charged, being wilful murder.

So that was the submission made by defence counsel. 

HAYNE J:   Then what exactly is said to be the deficiency in the direction?

MS ARCHER:   The trial judge at no point told the jury that before they could use the evidence of the lies and the post‑events conduct in order to draw an inference of an intention to kill they would have to be satisfied that that was its explanation rather than perhaps being told to cover up a murder or a manslaughter or just being involved in unnatural death.  His Honour did at one point draw the jury’s specific attention to the question of intent.  That is at page 126 of the application book.  At about line 43 his Honour comes as close as his Honour gets, with respect, to making the direction sought.

HAYNE J:   Namely, treat them in the same way as you would treat lies.

MS ARCHER:   There is no objection to that aspect of the direction, but his Honour is specifically drawing the jury’s attention to the evidence in the context of whether they can draw an intention to kill, which is what the applicant was seeking.  The difficulty is that his Honour then goes on to distinguish that from having been innocently involved in the crime.  With respect, that simply is not sufficient.  Indeed, the Canadian authorities have gone slightly further than the cases from the other Australian jurisdictions in saying that where, for example, you have a killing that is admitted, post‑offence conduct may not even be probative at all because it could be equally explicable as having been done to cover up an unlawful killing as an intentional killing.  So it is only when you have multiple issues, according to the Canadian authorities, that the evidence is even admissible.

HAYNE J:   But the way in which the trial judge dealt with it is found, is it not, although in discussion with counsel in the absence of the jury, in the first paragraph on 165?

MS ARCHER:   Yes, at line 10.

HAYNE J:   Well, at lines 4 to 10:

“You would need to ask yourselves what does this evidence say if anything about whether or not the accused unlawfully killed Ronald Downie, what does it say if anything about whether he had any particular intent –

What more could the judge have said?

MS ARCHER:   Well, with respect, your Honour, that is not being said to the jury, of course.

HAYNE J:   No.

MS ARCHER:   That is a reference back to the passage that I just took your Honour to at page 126.

HAYNE J:   Yes, the judge is repeating what he has already told the jury.

MS ARCHER:   That is correct.

HAYNE J:   Yes, I understand that, but what more should the judge have told the jury?

MS ARCHER:   The judge needed to tell the jury that before they could use the evidence in working out the man’s intention they had to be satisfied that it was not done in order to cover up a murder, a manslaughter or an unnatural death.

HAYNE J:   Then at page 127, which is where the actual direction is given, what is meant by lines 7 to 10?

MS ARCHER:   He is talking there, with respect, about “confusion and panic” and he is ‑ ‑ ‑

HAYNE J:  

because Ronald Downie had died in terrible circumstances in which the accused had been innocently involved.

MS ARCHER:   That is the problem.  It is comparing it to an innocent involvement.  It is not comparing it to a culpable involvement and, with respect, that distinction is critical.  In fairness to his Honour, at one point his Honour did explain what his Honour meant by innocent and that his Honour meant innocent of the offence charged, but that was only on one occasion.  On the other occasions when his Honour used the word “innocent”, it was innocent completely.

In the case of Box and Martin there were two issues in dispute.  One was, firstly, whether the offender or the accused was indeed a primary offender; secondly, whether he was guilty of being an accessory after the fact.  So there were two quite distinct issues there, not just related to his involvement in intention.  The court there was at pains to say that the trial judge needed to make it clear that the jury could not misuse this evidence. 

The reason for it, in my submission, is a logical reason, that is, this sort of evidence is particularly susceptible of being misused.  It can be very emotional evidence for a jury to hear about what is very bad behaviour after a tragic death and their instinct is to reason by saying because he has done these terrible things in order to cover up what he has done, he must therefore have had an intention to kill.  That is the danger.  In those circumstances, when it is quite possible that a person would do that sort of a cover up simply because they knew that they had been involved in an unlawful killing or even a murder, the jury needs to be very carefully directed that they cannot use the evidence to prove an intention to kill if it is explicable in that way.

I had been addressing the Court about one of the reasons why the Court of Appeal in Western Australia distinguished the other authorities and essentially said they were not declining to adopt the position that was being held elsewhere but was saying that they did not apply.  The reason was that they said in Banks’ Case it was multiple issues and in the other cases they were single issues.  Again, with respect, that is not so.  Box and Martin, as I have already indicated, was a multiple issue case.  In Nugyen there were issues of both voluntariness and intention.  As I have mentioned in the Canadian cases, the view of the Canadian courts is that unless there are multiple issues the evidence may not even be admissible.

There was another reason for distinguishing some of those cases that was expressed by Justice McLure and that was that in some of the cases the discussion was whether the evidence even went beyond being lies going only to credit.  One of the examples was Chevathen and Dorrick, which is also on the list.

Now, the applicant does not resile from the fact that the post‑offence conduct in this case was probative of an unlawful killing.  That cannot be argued with.  In some ways, that evidence was probative.

HAYNE J:   Otherwise it was inadmissible.

MS ARCHER:   Otherwise it was inadmissible, absolutely, your Honour, with respect.  The argument is what use the jury could make of it.  It is my submission that the whole point of the complaint here is that the conduct may not have been probative of an intention to kill.  As a matter of logic, when one looks at the facts, it may not have been probative of that.  Now, that, with respect, was a matter for the jury.  It is not suggested that it should have been taken away from them, but before it would necessarily be probative of an intention to kill the jury would have to be satisfied that it was in the sense that I have already explained.

HAYNE J:   Can you take me to where the trial judge gave the Edwards direction?

MS ARCHER:   Yes.  It is at page 116 through to 127.

HAYNE J:   Thank you.  So the impugned directions at 126, 127 come after the Edwards directions?

MS ARCHER:    That is correct, yes.  Perhaps the only other point I can usefully make to add to the summary of argument is, very briefly, the reason why it is submitted that the Western Australian Court of Appeal was incorrect to say that Woolley has been followed by other authorities and that is simply by referring the Court to the relevant passage in Rice’s Case which discussed Woolley.  That is at page 415, where the Court referred to the fact that:

In the United States it seems to be accepted that conduct put forward as guilty conduct must show consciousness of guilt of the crime charged, as opposed to mere consciousness of guilt of crime –

and the Court points out that that seems to be the position in England and Australia, although notes that that is only of recent times.  Then the Court says:

Interesting in this regard is what the Full Court of Victoria said in R v Woolley – 

and that is as far as the Court goes.  There is no endorsement and, in my submission, it indeed suggests that it is not following Woolley’s Case at all, and indeed by the result.  In that situation, what this Court is faced with is a Western Australian Court of Appeal that has, in my submission, declined to follow the authorities from the other jurisdictions, distinguishing them on grounds that are not logical, with respect, and have mistakenly assumed that the one case that does support their position has been subsequently followed.

CALLINAN J:   Your submission really is that the lie must be told out of consciousness of guilt, which is to say a consciousness of each of the elements that would constitute guilt, because why do you single out intention?  Logically, you have to say that the lies can only be used against an accused if they go to each and every element of an offence.

MS ARCHER:   With respect, it is not put quite that highly.  What it is put is, is that the evidence may be probative if it goes to an element or an aspect of the charge; it may be probative of that.  But before it does go to that aspect the jury have to be satisfied that that is a logical deduction.  So, for example, with this post‑offence conduct here, it is arguable that it was probative of a number of elements of the crime of wilful murder, murder and manslaughter.  It was arguable that it was probative of the absence of self‑defence, rejection of provocation, causation and intention.  Where the critical issue, as in this case, as in many homicide cases, was undoubtedly the intention – and his Honour the trial judge acknowledged that on several occasions – and where, as a matter of logic, such evidence may not be probative of that intention, it is critical that the jury be told that.

So the jury may well have been instructed in this case in terms of the Edwards direction, the standard requirements of that, but then to go further in line with the other authorities, particularly England and Canada, and explain that a person may tell a lie to cover up their involvement in a murder.  They may tell it to cover up their involvement in a manslaughter.  They may tell it to cover up the fact that they were not really provoked or that they were not really acting in self-defence.  Before you can use that line to add to the bundle of inferring an intention to kill, you must be satisfied that it was not told for one of those other reasons.  I appreciate that it is a complex direction to say, but it is not a complex direction to understand.

CALLINAN J:   You say an element may be critical in one case but not in another.  Is that what you say?

MS ARCHER:   That is correct.

CALLINAN J:   If the defence is a defence which simply, for example, puts the Crown to proof, how can you say any element is critical?  They are all equally critical.

MS ARCHER:   It would depend on how the case played out, with respect, but in this ‑ ‑ ‑

HAYNE J:   If the accused ends up going to the jury on the central issue of intention, there being no issue about killing, I understand the point you make.  The difficulty I think you have to confront is that here the accused went to the jury on all issues.  Everything was in play.

MS ARCHER:   I cannot argue with that, your Honour, but, in my submission, had it been the other way the evidence should not have been admitted.

HAYNE J:   It might have had to be a different direction at the end.  I think these days it might be a bold trial judge who would fail to direct on all issues unless there were formal admissions, but we may yet get back to those halcyon days of, “There is really only one issue in this case, ladies and gentlemen, and it is the issue of intention”.

MS ARCHER:   I do not think we can be that lucky, your Honour.

HAYNE J:   No.

MS ARCHER:   But the point is, in my submission, your Honour, that if there was only one issue and the issue was intention, then the evidence either was not admissible or the jury should have been told it could not be corroborative.  All it is is credibility.  Where there are multiple issues, that is when the express direction is required, and that is the facts in this case.

HAYNE J:   Yes.

MS ARCHER:   I see I am out of time.

HAYNE J:   Thank you, Ms Archer.  We will not trouble you, Mr Fiannaca.

We are not persuaded that it is arguable that there has been any miscarriage of justice in this case.  Accordingly, special leave to appeal is refused.

AT 10.07 AM THE MATTER WAS CONCLUDED