Barker v The Queen

[2003] HCATrans 440

[2003] HCATrans 440

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P58 of 2002

B e t w e e n -

GARRY JOHN BARKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 11.24 AM

Copyright in the High Court of Australia

MR B.S. HANBURY:   May it please the Court, I appear on behalf of the applicant.  (instructed by Beau Hanbury)

MR D. DEMPSTER:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (WA))

McHUGH J:   Yes, Mr Hanbury.

MR HANBURY:   Your Honour, in this matter the applicant was convicted of various offences and what is complained about is set out at page 44 of the application book, in the second paragraph.  Her Honour, with respect, was told by the members of the jury that they had:

noticed blue fibre on the tape of the same material as the top that was worn by [the complainant] –

The position is that this was the first time that any fibre had been noticed on the tape, in the sense of saying that the Crown did not prosecute the case on the basis that it could be said, before the matter went to the jury, that there were fibres, any fibres at all, apart from a hair that was found, on the tape, so that the jury had discovered in the course of, apparently, viewing the tape that there were these fibres.

In the court below, the appeal was dismissed unanimously.  His Honour Justice Anderson, at page 66 of the application book, referred to the fact that defence counsel did not ask for an adjournment so that the exhibits could be tested.  In my respectful submission, it would not be open for counsel to have done that because the trial had finished, the exhibits were before the jury, and for ‑ ‑ ‑

McHUGH J:   A trial is never over until the jury returns its verdict.  I mean, it is not unusual ‑ ‑ ‑

MR HANBURY:   Your Honour, in the course of the judgment in the court below, the case of Buller was referred to.  This was a different type of case.  This was a case where, before the matter had got to the jury, one of the expert witnesses had given evidence and counsel had not known of that evidence before, so an application was made for an adjournment.  The case at hand involves a situation where, for the first time, the jury finds material and asks the learned trial judge whether that material can be used, having come to various conclusions about it.

Your Honour, what is complained of is that the jury having come to a conclusion, firstly, that they noticed blue fibre, secondly, that they had concluded that that blue fibre was from the top worn by the complainant, it is submitted, with respect, that it was impossible for the learned trial judge to have given any warning.  But, in any event, at page 44 of the application book, her Honour presented the question to counsel and by that stage her Honour, with respect – and this is in the third paragraph down – had already formed a view that she intended to tell the jury that “they are entitled to make whatever they see fit of the exhibits”.

The prosecutor agreed with that and then defence counsel’s answer, at line 15, is “Yes.  I think that is the correct answer to the question.”  And then counsel – perhaps not stridently enough, but nevertheless – suggested that perhaps some sort of warning needed to be given about the jury drawing conclusions.  Her Honour, with respect, at line 25 or thereabouts, said to counsel that “That might be reading too much into the question”.

The submission today, if it please the Court, is that in relation to this matter the applicant went through a trial; the jury had not been told, prior to finding the fibre on the tape, that there was any such fibre on the tape.

McHUGH J:   But the point seems to have arisen because counsel for the accused told the jury that there was no fibre on it, and the judge then seemed to pick that up and run with it and, indeed, put it in a way that was very favourable to your client.  When the jury noticed it themselves, they took the view that what counsel told them was wrong.  Is that not how it arose?

MR HANBURY:   Not exactly, your Honour, with respect.  The position was that the learned judge, with respect, at page 44, put it in better terms than defence counsel when she said, in the second paragraph down:

the judge told us there was no evidence of blue fibre on the tape –

It is correct to say that defence counsel had said, wrongly, I think, with respect, that there was no fibre on the tape, whereas the learned trial judge, with respect, was right to say there was no evidence of blue fibre on the tape.

The other difficulty that arose in this case, your Honour, was that the jury actually had the report from a scientist, which is referred to in that question, and the report was silent on the question of fibres because the report was a DNA report.  As I understand it, because in that report there was no mention of any fibres on the tape, the jury concluded in the way that is set out in the question, that therefore “the report did not even test for fibres”.  The contention of the applicant is that this was incorrect because there was nothing put during the course of the trial and the hearing of the evidence that concerned any fibres at all being on the tape. 

So what is suggested, your Honour, with respect, is that in some fashion the fibre has come to be on the tape.  I cannot say when that was, but it certainly was the case, as I understand the prosecution case, that it was not suggested that the Crown could prove its case by referring to fibre being on the tape.

McHUGH J:   That may be, but jurors are entitled to use their own powers of observation with respect to exhibits and they appear to have done no more in this case, have they?

MR HANBURY:   They certainly observed, your Honour, that there were fibres on the tape, but they were not entitled, in my respectful submission, to go on and say that, necessarily, either that it was blue fibre or that it was fibre from a top worn by the complainant.  There was no other evidence before the jury about adhesive from the tape being on the jumper, and so the jury really were drawing conclusions upon which there was simply no evidence.  And I would, with respect, refer your Honours to what was said by his Honour Justice Anderson.

McHUGH J:   Another difficulty you have is that Mr Bodeker accepted the direction that the trial judge gave to the jury.

MR HANBURY:   Your Honour, only in the sense that if, at line 15, when defence counsel said “Yes” that meant that he was agreeing, as opposed to acknowledging her Honour’s attention being directed towards him, because he goes on and says “I think that is the correct answer to the question”.  Of course, this is not a question routinely asked – certainly, in my experience ‑ by juries in criminal trials, but counsel says:

I think that is the correct answer to the question.  Whether they ought to be warned about reaching conclusions –

and he goes on.  Her Honour, of course, in the subsequent paragraph, said “That might be reading too much into the question”.

In my respectful submission, your Honour, there has been a miscarriage of justice in this case because the jury decided the guilt of the applicant, at least in part.  Perhaps if I could draw your Honours’ attention to page 13 of the application book, paragraph 45, where the crucial nature of this issue was summed up by the learned trial judge.  The fact that the jury asked a question of the learned trial judge, in my respectful submission, clearly indicates that the jury placed great emphasis upon knowing whether or not they could take this evidence into account.

Your Honour Justice McHugh mentioned that they are entitled to use their own observations.  The applicant, with respect, does not deny that, but

it is a wholly different set of circumstances, the applicant would submit, where the material is discovered, because when it was, it was too late for counsel to have asked for an adjournment to test that evidence, the evidence having been put in.  His Honour Justice Anderson criticised counsel for not calling for the exhibit. 

My respectful submission, your Honour, would be that counsel had a duty, I think, to look at the exhibit, but even if he had been of a different view to the jury then the trial process had fallen down, because the jury had come to a conclusion, in their question, that the blue fibre on the tape was the same material as the top that was worn by the complainant.  If your Honours, with respect, had a chance to look at the New South Wales case of Hodge v Williams ‑ ‑ ‑

McHUGH J:   I think both of us are very familiar with Hodge v Williams.

MR HANBURY:   Your Honour, I was simply going to point out that perhaps that case is closer to the case at hand, in the sense of saying that that appears to have been a case where, in the course of making a decision, the decision‑maker relied on material that had been gathered in the absence of the parties.  I would respectfully submit that that is a closer case to the case at hand.  Your Honours, unless there is a particular matter, those are the submissions.

McHUGH J:   Thank you, Mr Hanbury.  We need not call on you, Mr Dempster, but can we - we would like to make clear our displeasure at the brevity of the written submissions filed in this matter on behalf of the Crown.  They consist of three paragraphs in the summary of argument consisting of five sentences and they merely contain assertions.  There is no argument in any real sense.  They are, with great respect, almost of no assistance to the Court.  They amount to little more than a denial of the other side’s case without any argument.  We would like this criticism to be passed on to the relevant authorities and those who prepare these summaries of ‑ ‑ ‑

MR DEMPSTER:   May it please your Honour, I have noted that and I certainly will pass it on.

McHUGH J:   Yes, Mr Dempster.

In this matter the applicant complains that there has been a miscarriage of justice by reason of a direction or answer given to a question from the jury.  During its deliberations the jury sent a question to the judge as follows:

We have noticed blue fibre on the tape of the same material as the top that was worn by [the complainant] and that the judge told us that there was no evidence of blue fibre on the tape according to the forensic report.  The forensic report after studying did not even test for the fibres.  Are we to take the blue fibre into account?

The judge told the jury that:

the tape and the top are obviously exhibits and you can make of them of what you will.  The short answer to your question is yes.

The jury retired to resume its deliberations and eventually convicted the accused. 

Before giving the jury the answer to its question and the direction to which I have referred, the learned trial judge had informed counsel of what she proposed to do.  Counsel then appearing for the applicant said:

Yes.  I think that is the correct answer to the question.  Whether they ought to be warned about reaching conclusions where there may be other reasonable inferences to be drawn – perhaps some kind of a warning along those lines might be appropriate if that answer is to be given to the question.

The trial judge replied:

That might be reading too much into the question.  I think the appropriate procedure is simply to answer the question and if further elaboration is needed, then the request can be made.

In our view, what her Honour said was in accordance with the authority of this Court’s decision in Kozul v The Queen (1981) 147 CLR 221. There is nothing in Hodge v Williams (1947) 47 SR (NSW) 489 which would suggest that there is any miscarriage of justice in this particular case. In any event, the case against the applicant was a very, very strong case. Even if there had been an error by the learned trial judge in the answer she gave, it would be a nice question as to whether or not the applicant had established any miscarriage of justice because of the weight of the evidence against him.

Accordingly, special leave is refused.

AT 11.41 AM THE MATTER WAS CONCLUDED