Batas v The Queen

[1997] HCATrans 8

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 1996

B e t w e e n -

GEORGE BATAS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 FEBRUARY 1997, AT 11.57 AM

Copyright in the High Court of Australia

MR P.J. RICE:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Morris, Pearce & Meister)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MR P.F. MUSCAT, on behalf of the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

BRENNAN CJ:   Yes, Mr Rice.

MR RICE:   If the Court pleases, the applicant contends that the Court of Criminal Appeal applied inadequate test in proof of facts that formed part of the similar fact or propensity evidence.  It contends that the Court of Criminal Appeal applied at best for the prosecution a test that resulted in there being a strong probability that the applicant did the requisite wiring on site at the Tareena - that is, the New South Wales site, which is an inadequate test, in our submission, bearing in mind its application fatal to the applicant at the Nepouie Springs site which was the site with respect to which he was charged.

So far as even the Nepouie Springs site is concerned which is, as I have said, the site charged, the Court of Criminal Appeal could say no more than that there was a strong probability that the applicant did the wiring on site.  In our submission, neither finding by the Court of Criminal Appeal was a sufficient factual finding.  If I can take your Honours momentarily to the application book.  In the middle of page 33, the Court of Criminal Appeal said - Justice Cox did on behalf of the Court of Criminal Appeal:

In my opinion, the learned judge was justified in admitting the Tareena evidence -

which is the New South Wales evidence -

despite its disclosing the appellant’s complicity in a serious crime for which he was not being tried.  It met the stringest test for similar fact evidence.  Its probative force outweighed its prejudicial effect.

That was the conclusion the court reached, but when it came to espousing, so far as the court’s view was concerned, precisely how strong it was of the view that the Tareena evidence was found proved and therefore could be applied to the Nepouie Springs incidents concerned, it had this to say at page 36 of the application book, about line 11 or 12 or 13 where it said:

Batas’ problem on his trial was that he had a specialist role which, having regard to the strong probabilities of the matter, was shown to have been exercised by him on site at both places.

Now, in the applicant’s submission, although the Court of Criminal Appeal correctly applied Hoch’s Case as then reapplied in Pfennig’s Case, the Court of Criminal Appeal was able to say no more than, when it came down to it, that there was a strong probability that the applicant performed his specialist role on site at both places and, in our submission ‑ ‑ ‑ 

BRENNAN CJ:   But, Mr Rice, admissibility and weight are two different things, are they not?

MR RICE:   Certainly, your Honour.

BRENNAN CJ:   Then, so far as admissibility is concerned, that was one question that the Court of Criminal Appeal had to consider, and if the test was correctly applied at page 33 as to admissibility, that is the end of that point.  If then the court, considering whether or not there is sufficient evidence to support the conviction, looks at the question of the weight of that evidence and expresses itself as it does at page 36, it is entitled to take that, together with other evidence, for example, the thumbprint or the fingerprint of the accused at Nepouie as sufficient to support the conviction.  Where is the error?

MR RICE:   The error, Chief Justice, is that the court was not satisfied beyond reasonable doubt - that is, the Court of Criminal Appeal was not satisfied beyond reasonable doubt - about the accused’s involvement at Tareena in New South Wales and, therefore, being of that view, that evidence was not able to be used in aid of proof of the applicant’s involvement in the Nepouie Springs incident.

DAWSON J:   But that is not the test.  The test is whether, having regard to the Tareena evidence, in the context of all the other evidence in the case, there was a reasonable explanation for his presence at Tareena which was consistent with his innocence, and the court concluded there was not.

BRENNAN CJ:   At Nepouie.

DAWSON J:   At Nepouie.

MR RICE:   But in reaching that conclusion ‑ ‑ ‑

DAWSON J:   I am sorry, no, it is Tareena, when you are talking about the admissibility.  And then, of course, as the Chief Justice points out, once you have decided that there was no reasonable hypothesis consistent with innocence, taking the evidence as to Tareena in the context of all the evidence, then the evidence was admitted and it is a question of the weight to be attached to it.  That is the test which is being referred to at page 33; the stringent test for similar fact evidence.

MR RICE:   Yes, that is so, your Honour.  But when the court came to encapsulate really what its view was about the strength of the evidence upon which it relied so as to supposedly apply the Hoch test, all it could say, in the applicant’s submission, was that there was a strong probability of the matter that the applicant did the wiring on site at both premises and that ‑ ‑ ‑

DAWSON J:   No, at page 33, dealing with the question of admissibility, it said:

It met the stringent test for similar fact evidence.

And that is that there must be no explanation consistent with innocence in relation to that evidence considered in the context of all the other evidence in the case, and that is the test that must be referred to.  It is only then that you can say that its probative force outweighs its prejudicial effect.

MR RICE:   Yes, which is obviously taking up many of the themes in Pfennig’s Case.  But I think I can say no more than the court, in effect, seemed to be, as it were, pulling itself up by its own bootstraps, or supporting its view, perhaps in a circular way, that the evidence was sufficient so far as Nepouie Springs is concerned because of the strong probability that he did the wiring at Tareena.  I do not think, if your Honours please, I could really put it much differently to that. 

The point that we make is that in deciding upon what material a court should act for the purposes of applying what I will call the Hoch or the Pfennig test, then the court should be satisfied, or be able to be satisfied beyond reasonable doubt, about those facts upon which it is going to rely.  Unless it is able to be satisfied beyond reasonable doubt about those matters, it then cannot use those matters in aid of proof either of the Tareena matter, or, of course then, so far as Nepouie Springs is concerned.  That is the point that the applicant makes by way of special leave.

BRENNAN CJ:   Thank you, Mr Rice.

MR RICE:   In the applicant’s submission, the strong probability test that the court was encapsulating at page 36 was an inadequate test for both Tareena and, therefore, we would submit Nepouie Springs as well.  They are the submissions of the applicant, if the Court pleases.

BRENNAN CJ:   We need not trouble you, Ms Abraham.  There was no error of principle that warrants a grant of special leave.  Accordingly, special leave will be refused.

AT 12.06 PM THE MATTER WAS CONCLUDED