Boden v The Queen

[2003] HCATrans 778

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B55 of 2002

B e t w e e n -

VITEK BODEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 11.47 AM

Copyright in the High Court of Australia

MR V. BODEN appeared in person.

MR C.W. HEATON:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mr Boden.

MR BODEN:   In the beginning of October 2001, about two weeks before my case started in District Court in Maroochydore, I received from Police Forensic Unit a CD containing a copy of a program from my computer which was allegedly used for hacking.  On that CD I discovered that one of the files, PDSCONF.PIF, was created on my computer eight hours after I was arrested and after the computer was taken for police safe keeping.  A copy of that information is in application book page 28.  With that discovery, I believed that the people who set me up were caught red‑handed because they made a mistake when modifying information on my computer ‑ ‑ ‑

McHUGH J:   Mr Boden, what you have to understand is this Court does not deal with factual matters as a general rule.  It is a very rare case that we deal with it.  This case just concerns facts.  You did not give evidence at the trial and now you are making statements from the Bar table which were not in evidence.

MR BODEN:   I believe that the question before this Court is quite important and that is, in considering somebody guilty, should fact be taken into consideration or fiction.  In my case, I presented facts and I presented some of them in my application as well and these facts were ignored completely by lower courts.

McHUGH J:   Yes, but it is a matter for the jury to determine the facts of the case and they found them against you and you did not give evidence.

MR BODEN:   The jury was not informed properly about the meaning of the facts I mentioned in my application book.

McHUGH J:   Well, that is a factual matter.  It is not a matter that requires the grant of special leave, Mr Boden.  As you have probably heard from remarks I have made in earlier cases, this Court can only hear about 50 cases a year.  There are tens of thousands of cases heard around Australia.  There has to be something very important and special about the case.  Every unsuccessful litigant, every convicted person, claims that something went wrong in their case.  We cannot hear those cases.  We are not a general court of appeal.

MR BODEN:   In this case an important fact was this policeman from Forensic Unit was lying in court and in my application book ‑ ‑ ‑

McHUGH J:   Yes, but the jury did not accept that.  You cannot argue that here.  You are bound by that finding.  You cannot argue here that the jury were wrong to believe the police when they believed him.

MR BODEN:   But when I lodge appeal to the High Court of Queensland I presented those facts and I pointed what has not been shown to jury and these facts were completely ignored.  I believe that the judge should point to jury certain aspects of the case I mention in my application book and ‑ ‑ ‑

McHUGH J:   Well, in respect of one matter, the question of reloading of the Windows program on 29 February, your convictions were quashed in respect of those counts, but the Court of Appeal examined the whole record and found that there were no other errors.

MR BODEN:   Yes, but why the fact that a police officer was lying in court was completely ignored?

McHUGH J:   No, but you say that he was lying.  It was a matter for the jury to determine whether he was lying.

MR BODEN:   Well, I am showing in my application book that his statement in court is in contradiction to his forensic report he lodged in court.

KIRBY J:   That matter was put before the jury though and the jury did not accept your argument at the trial.  We were not there.  We are not a jury.  We just cannot fulfil that role.

MR BODEN:   So are you basically saying that the fact that the police officer was lying in court is not important to this Court?

KIRBY J:   Well, it is important if it can be demonstrated objectively and it casts doubt on the safety of the conviction, but you had your case argued at the trial before the jury.  You dismissed your legal representative, which probably did not help you.  You did not give your version to the jury in evidence, which probably did not help you.  Then, when the jury comes out with its verdicts of guilty, you want to complain.  The matter was looked at by the Court of Appeal.  You have to show something special to get into this Court.  So it is a problem.  You are behind the eight ball, I am afraid, by the way the matter was dealt with. 

As well as that, your theory, though possible, is inherently unlikely that the police somehow got at your computer and fiddled around with the program and put into it all sorts of material that was not there.  One asks oneself, “Why would they do that against a person, just another citizen?  Why would they do that?”  It has happened, unfortunately, and it is possible, but you have to have just more than assertion.

MR BODEN:   That is why I presented in my application book references to the exhibit in court, which clearly shows that one of the files on my computer was created eight hours after my arrest, and that could have been done only with co‑operation of police in Maroochydore’s police station.

KIRBY J:   But you put this before the jury, did you not?  You argued this at the trial and obviously the jury did not think that was established.  They did not accept that.

MR BODEN:   Well, during the court case I was simply stunned how quickly prosecution found an excuse for presence of that file on my computer.  In retrospect I should have asked for adjournment, but I did not.

KIRBY J:   But it was a bit odd that you were found close to the scene and with a computer that did have the power to give the signals to the water system.  I mean, that itself was a bit odd.

MR BODEN:   Contents of different programs on my computer are related to the work I was previously doing.  However, the point in my submission to this Court, main point, is that police officer, forensic expert, was lying in court and I am showing that he was lying, comparing his evidence in court as it compared to evidence he presented in his report.

KIRBY J:   But you did put that argument before the jury at the trial, did you not?

MR BODEN:   Yes.

KIRBY J:   And they heard you and they heard the prosecution case and they would have looked at it in a rather global and commonsense way and said, “Now, why is this man hovering around in this area and why did the police, when they tail him, find him there, with a computer, with the program and the capacity?  Why would he do that?  Some unknown gripe or animosity?”  The fact that they tracked you and found you there, that is very suspicious.  That is how the jury would have thought.

MR BODEN:   I was relying too much on so-called average intelligence of jury.  That is the reason I did not make detailed statement at the end of the court case.  I am aware of my limitations.  I am not able to question properly witnesses.  I am not trained for that, and I pointed to jury that I am able only to show certain facts.

KIRBY J:   Yes, but you are obviously an intelligent man and you are a trained man and you have an expertise ‑ ‑ ‑

MR BODEN:   In different area.

KIRBY J:   A different area, but you are not like many of the people we see who are involved in criminal trials.  You are an intelligent trained man and you put your case as best you could to the jury and they had it all and they had this very suspicious thing that the police trailed you and found you in this area, and that would have been pretty fatal to you, I am afraid, before the commonsense of the jury.  They do not often, one assumes, go into all the little fine detail; they look at it globally.  I think that is what they did, especially as you did not give evidence, it is very difficult for them to accept your case.

MR BODEN:   I understand that I made tactical mistakes during the court case, however my reason for the presence over here is that I have important point.  I am showing in my application that police officer was lying in court to protect other policemen and other people involved.  I believe that that is ‑ ‑ ‑

KIRBY J:   Well, that is what you are say, but you put that at trial and the jury did not accept it.  Now, how are we to substitute our opinion for that of the jury who heard all of the evidence of all of the complexities of the case?  We just get ‑ ‑ ‑

McHUGH J:   And saw the witnesses.

MR BODEN:   My presentation in court case in Maroochydore probably was not perfect.  I did not present facts as clearly as I presented them in application book.  I believe that since this system is called justice system matters of factual importance should be considered by court.

KIRBY J:   Well, they are – as Justice McHugh has said, they are sometimes considered in exceptional cases where you have an objective fact that just does not gel with the rest of the matters and is crucial to the determination, but in this case it was a matter of evaluating all of the facts and, particularly, in the context of some rather suspicious actions on your part.  That is what the jury did, and they saw the witnesses and heard all of the evidence.  They did not just get a little glimpse of it, which is all you can give to us in the time that is available to get into the Court.

McHUGH J:   The jury sees you – here you are, you are found by the police travelling south on the Bruce Highway near the Glasshouse Mountains.  They know that the damage is emanating somewhere using the identification of pumping station 4.  Your car has a computer in it.  It has the necessary software to identify itself as pumping station 4.  You have a two‑way radio in your possession which is set to the frequencies of the Buderim and Mount Coolam repeater stations and then an examination of your computer shows that it was on at times consistent with the hacking taking place.  So the case against you consisted of know‑how, equipment, opportunity and motive to commit the offences.

KIRBY J:   And past background in the corporation.

MR BODEN:   The computer I had in my possession is clearly connected with the job I was doing.

McHUGH J:   I know, that is what you say, Mr Boden, but the jury took a different view of it.  It is a matter for them, not us.  It is not our function to try criminal cases.  You have to be able to point to some error of law or some fundamental miscarriage of justice in the proceedings.

MR BODEN:   Well, I believe that I pointed that by showing that the Supreme Court of Queensland completely ignored presented by me facts and it is a main issue here, from my perspective, as an ordinary citizen, should police be allowed to do whatever they want, lie in court, bamboozle people into making different statements?  There should be some sort of limitation to the powers of police.  I clearly remember that they were telling me I have rights, but they have powers, and obviously they are using their powers to their advantage.  I thought that I presented my issue clearly in the application book.  I tried to concentrate only on that issue.  I still believe that my case can be proven false, looking at technical evidence and contradictory statements of witnesses.

However, before this Court, I thought I would concentrate on one point, which is easy to prove.  Looking at evidence before the court by a policeman and his evidence in the forensic report.  He clearly says one thing in the court and different things in the forensic report, and it is quite important.

KIRBY J:   I realise it may be difficult for you because you come originally from a different country with a different legal system, but in our system the court’s role, and certainly this Court’s role, is quite limited, and it is a matter of merely seeing whether an error has happened which vitiates the decision below and whether the Court of Appeal has made a mistake.  That is our role.  It is a very limited role.  We are not here to become another jury in your case.

MR BODEN:   I understand.

KIRBY J:   That is the problem that you face in arguing this point, which you say is a very short and simple point, but it is a factual point, and it is a point for the trial, not for the second level of appeal.

MR BODEN:   I was led to believe that this Court is, in a sense, the highest body in this country, interested to know how other elements of the justice system are performing.

KIRBY J:   Well, all of that is true, but we do it within the rules of the systems that operate.  That means we cannot become another jury, because we just have not seen all the evidence.  We have not seen the policemen give their evidence.  We have no way of assessing them.  We just hear you.  How can we fulfil the role of the jury?

MR BODEN:   I believe that I showed that lower court ignored presented by me facts.  In the interest of justice, to appear that this system is fair, that court should have taken into consideration presented by me facts.  The Supreme Court agreed with one little point in my submission, but completely ignored a few major points.  Therefore, my way of thinking is if they were allowed to consider one little point, why they ignored important points? Those important points consider ‑ ‑ ‑

McHUGH J:   The reason is because that particular fact was a matter for the jury.  The jury were not bound to accept your arguments.  It was for them – they saw the police officer give evidence and they were entitled to accept him as being truthful.  That is one thing that is very difficult to overcome.  The jury saw the policeman, they heard him give evidence and they believed him.  Well, I assume they believed him; maybe they decided the case on other grounds.

MR BODEN:   The jury was not informed properly about meaning of certain aspects in the statement of the policeman.  It was quite complex case from technical point of view and ‑ ‑ ‑

McHUGH J:   Yes, you were saying it was a complex case from a technical point of view and you were arguing that the jury were not properly informed.

MR BODEN:   Yes, and I would not say it was ignored, maybe it was overlooked by jury.  The jury is not perfect.  They were just ordinary people.  If they were informed, or had opportunity to read information I provided in my application book, possibly the outcome would have been different for me.

KIRBY J:   Well, it possibly would have been different if you had not dismissed your counsel.  It possibly would have been different if you had given evidence to the jury.  You did not have to, but if you had they would have had your version on oath, and juries nowadays know that people can give evidence and if they do not, then they may draw an inference.  So that there are these complications in your case, but we cannot fix them up now unfortunately.

MR BODEN:   So this Court cannot take into consideration that the jury might have been misled or misinformed by the trial judge?

McHUGH J:   Ordinarily, and in fact almost without exception, questions of how the judge sums up on the facts are not special enough.

MR BODEN:   But they are important for the outcome.

McHUGH J:   Well, of course they are, but if we had to hear an appeal every time – or granted leave every time that it was argued a trial judge had not emphasised this fact or mentioned that fact, this Court would be inundated with work.  Everybody complains that the trial judge did not emphasise this fact or that fact, it is human nature, it is not a special leave point.

KIRBY J:   We have had cases where the charge by the judge to the jury is so unbalanced that the Court will intervene, but this is not such a case.  You just say mistakes were made.

MR BODEN:   I believe that in this case important facts were not pointed out to the jury.

KIRBY J:   Well, that is the job of the Court of Appeal to deal with.

MR BODEN:   The Court of Appeal completely ignored that fact.

KIRBY J:   Well, they upheld certain of your other grounds, and I want to ask Mr Heaton a question about one of those aspects.

MR BODEN:   Well, it was one little point, but my major points were ignored.  I accept that they accepted my little point.

KIRBY J:   It shows they were paying attention to your arguments in the Court of Appeal.  But they did not change your sentence, although they set aside the other convictions.  Perhaps I might ask Mr Heaton about that, because your time is now up, Mr Boden.

MR BODEN:   Thank you.

KIRBY J:   Mr Heaton, may I just ask you, the Court of Appeal set aside a large number of convictions.

MR HEATON:   …..21 to 26.  It might be six only.

KIRBY J:   Well, that is six convictions, but they did not then go on to resentence the applicant on the basis that he had been convicted for a smaller number of offences.

MR HEATON:   No, they did not.

KIRBY J:   Now, why is that?  I do not think he has an application in respect of his sentence, but what is the explanation for not, as it were, resentencing him on a footing that he had fewer convictions than had been found at trial?

MR HEATON:   It may be that the convictions in relation to counts 41 through to 48 related to a single session of intervention into the system rather than in individual message being sent, whereas the earlier counts related to individual messages, individual occasions when a signal was sent which altered a setting.  It was done in that way because it was not until the investigation included monitoring the actual goings on on this network that they were able to actually identify each of the messages that were being sent with sufficient, perhaps, certainty.

KIRBY J:   I know, in fairness to you, this is not an issue in the application and the applicant has not raised it, but he is unrepresented and I am just a little concerned that normally – I sat in the Court of Criminal Appeal for 10 years – if you set aside some convictions, the totality of the convictions is altered and you therefore have to reduce the sentence to, as it were, reflect the change in composition of the totality of the convictions.  Now, there may be some explanation here, but I could not find it myself.

McHUGH J:   Well, the explanation is that he got the two years on count 44, and that remained.  Counts 21 through to 43 and 46 to 48 he was given 18 months on each count and they were to be all concurrent.

MR HEATON:   That is right.

McHUGH J:   So the two‑year sentence remained.

KIRBY J:   Did the two‑year sentence take into account totality considerations of the earlier convictions or not?

MR HEATON:   I can only presume so.  That was not explored.  In terms of the level of criminality, even though there were 50 counts, counts 41 to

48 related to a greater number of actual interventions into the system than the preceding counts did, so that, when considering the overall conduct, the loss of those six counts, 21 to 26, did not substantially reduce the level of criminality and the actions of the applicant.

KIRBY J:   Was Mr Boden represented before the Court of Appeal or not?

MR HEATON:   No, he was not.

KIRBY J:   Well, I suppose all I can say is that we do not have the issue before us, but it just causes me a little bit of disquiet.  I realise that they were ordered to be served concurrently, but normally a judge sentencing a person is required by law to take into account totality considerations and, as it were, the head sentence or the substantive sentence, especially the substantive custodial sentence, takes into account the totality of the convictions and if you then snip out of the totality of the convictions six convictions, at least possibly it is something that could affect the total sentence.  At least, that was the way I approached matters in my years in the Court of Criminal Appeal in New South Wales, but we do not have that issue before us.  Is there anything else you can say on that point?

MR HEATON:   No.

McHUGH J:   Yes, we need not hear you, Mr Heaton.

MR HEATON:   Thank you, your Honour.

McHUGH J:   This application for special leave raises questions of fact.  It raises no issue of law that would warrant the grant of special leave.  Accordingly, the application must be dismissed.

The Court will now adjourn to another court.

AT 12.12 PM THE MATTER WAS CONCLUDED