Buckland v The Queen

[1997] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P15 of 1997

B e t w e e n -

RONALD JOSEPH BUCKLAND

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 20 OCTOBER 1997, AT 4.17 PM

Copyright in the High Court of Australia

TOOHEY J:   Ms Inkster, you appear for the applicant?

MS J.R. INKSTER:   I do, your Honour, may it please your Honour.  (instructed by the Director of Legal Aid)

MR J.R. McKECHNIE QC:   On this occasion, your Honour, with my learned friend, MS T.D. SWEENEY, I represent the Crown.  (instructed by the Director of Public Prosecutions (Western Australia)

TOOHEY J:   Ms Inkster, let me just inquire from counsel and from anyone else connected with the operation of the application whether it is convenient to sit on.  The Court is minded to sit on, if it is not inconvenient to anyone concerned.

MS INKSTER:   Yes.

MR McKECHNIE QC:   It is convenient from our point.

TOOHEY J:   Very well, thank you.  Yes, Ms Inkster.

MS INKSTER:   May it please your Honours, I first of all seek leave to rely on supplementary submissions which have been filed and I do not believe my learned friend has any objection to that course.

TOOHEY J:   Feel free to rely on those.

MS INKSTER:   Thank you, your Honour.  Your Honours, my main submission is that this matter before you raises issues of general public importance requiring consideration of this honourable Court, primarily because it is our submission that there is a lack of clarity in this area of the law which concerns the function of an appellate court upon the reception of new, as against fresh evidence received after the conviction of the accused.

Your Honours, we say that this case is a suitable vehicle for the examination of this point.  First of all, factually, because the evidence which was received by the appellate court was new, as against being fresh, which has not been raised before in this honourable Court, apart from the case of Mickelburg which I will come to.  So the evidence was new.  The evidence was, in our submission, objective.  There were not credibility issues arising which have arisen in past cases and, we say, have primarily given rights to the reason why that evidence was not received and it was, most importantly, deemed admissible by the court.  The court actually received it as admissible evidence.  We say, of course, further that it was probative of the guilt or innocence of the applicant.

Secondly, this case is a suitable vehicle for your Honours’ consideration because, in my submission, what the appellate court has sought to do is to merge the two concepts of new and fresh evidence but has done so in an erroneous manner.  Because those two concepts, as they stood under the authority of Ratten, required two different approaches to be taken, depending on whether the evidence is to be categorised as new or to be categorised as fresh.

TOOHEY J:   Could I just ask you this, Ms Inkster, when you are using the expression “new evidence” in this case, you are referring to evidence that was not only not called but was known to the applicant and presumably deliberately not called by him at his original trial?  Is that a fair statement of the position?

MS INKSTER:   That is correct.  I perhaps would not go so far as to say, presumably, deliberately not called, not brought forth by the applicant, but certainly it was conceded by counsel below that he was aware of that evidence at the time of his trial.

TOOHEY J:   By deliberately, I suppose I meant there was no suggestion of factors that might have precluded the reference to that particular testimony.

MS INKSTER:   Well, there are.

TOOHEY J:   Are there?

MS INKSTER:   There are other factors, the other factors being matters which, perhaps, were not fully before the court below, but we say those factors, nevertheless, are of significance because those factors were not before the court below.

TOOHEY J:   Do you mean factors that were explored before the Court of Appeal?

MS INKSTER:   Well, they were factors, we say, which may have formed part of the conflict, which your Honours may be aware of, between the reason why that evidence was produced at the time that it was.  That is, why did Mr Buckland lead the police to the body at that particular time?

TOOHEY J:   Yes, I totally understand that.

MS INKSTER:   Yes.   So those are factors which were not fully explored and were not fully before the appellate court, but yet, we would say in our submissions, perhaps a little bit further down the track, adverse inferences were drawn against the applicant from that pure fact that we took the police to the body.

TOOHEY J:   Well, that is not surprising, is it?

MS INKSTER:   Not surprising in what ‑ ‑ ‑

TOOHEY J:   That adverse inferences were drawn from that.

MS INKSTER:   Well, in my submission it is not a question, with respect, your Honour, of it being surprising or not.  The question is that it is an inference which, in my submission, the appellate court was not able to make.  It comes back to my submission concerning the two different approaches that ought to be taken by an appellate court when dealing with new, as against fresh evidence, because to merge those two concepts and yet still rely on the approach which is proposed by Chief Justice Barwick in the Ratten decision, that is to look at the evidence as it was before the trial court and then assess it from the Court’s own view, is offensive to a merger of those two concepts.

Because if we are going to merge the two concepts we must then look at it in a light favourable to the applicant and we must look at that evidence in a forward direction towards what a hypothetical jury might or would make of that evidence, not what the actual jury could have made of the evidence and that is what we say is the primary error in the Court of Criminal Appeal’s decision.

TOOHEY J:   I am not sure that I really understand that distinction.

MS INKSTER:   As your Honour pleases, what I am submitting to you is that if one looks at the Court of Criminal Appeal’s analysis of fresh, as against new evidence, and it commences at page 161 of the appeal book.  But coming to the essence of the analysis at page 164, what the Chief Justice does is he states the broad principle of how further material can be presented to the court but he states it from the Ratten approach for new or fresh evidence.  That is where the applicant is only seeking a total quashing of his conviction and the only basis upon which the applicant can succeed in that respect is if he satisfies the court and the court can make an appraisal of the evidence from its own point of view and decide the issue accordingly.  So the Chief Justice states that.

His Honour then goes on to make reference to a variety of tests.  His Honour quotes Justices Deane and Mason, I think it is, from the case of Gallagher and yet Gallagher only dealt with fresh evidence.  Gallagher did not deal with new evidence, and that was said particularly.  He then goes on to quote erroneously Chief Justice Gibbs from the Gallagher case, because Chief Justice Gibbs does not speak of new evidence there, he speaks of fresh evidence.  He then goes on to assess the evidence, we say, from the wrong point of view and comes up with a hybrid Gallagher‑type test.

GUMMOW J:   Just forget about the test for a minute, what do you say about page 167, lines 14 to 19?

MS INKSTER:   We say that is the ‑ ‑ ‑

GUMMOW J:   There are some practicalities involved in all of this.

MS INKSTER:   Practicalities?

GUMMOW J:   Yes.

MS INKSTER:   In what sense, your Honour?

GUMMOW J:   Rather than careful abstractions from decided cases, and so on and so forth, one has to get down to the basics of 167.

MS INKSTER:   But the basics are at 167 from the wrong point of view, I would submit to you, your Honour.  What the court has not done is look at the evidence in a manner most favourable to the applicant, which has been dictated by the authority of Ratten and indeed by Gallagher, because Gallagher said you must assess the evidence from the jury’s point of view, not from the court’s point of view.  This just shows the example of the fact that the Chief Justice has assessed the evidence for himself.  You will see further up at line 14, he says:

that Ms Robinson’s legs were not broken would not necessarily cast           doubt -

It does not have to necessarily cast doubt.  It is sufficient if it would or if it might.  So, it is a matter of practicalities, it is a matter of real example of the analysis of the evidence and I would submit to you that the analysis of the evidence shows that the approach is the wrong approach.  It is a “could” test that the Chief Justice has applied rather than a “would” or “might” test.

TOOHEY J:   I can see that.  I can see the distinction that you are drawing but if you take up Justice Gummow’s question to you, in the particular circumstances of this case, given the sort of evidence that the applicant wished to rely upon and the inferences that inevitably would be drawn against him by the jury ‑ ‑ ‑

MS INKSTER:   Being the inference?

TOOHEY J:   Well, being the inference that he knew - not the inference that he knew where the body was buried, he did know because he took the police there.  It seems to me that you are selecting one or two considerations and saying, well, the jury might or might not have made some particular, or attach some particular significance to those matters, and in that respect the Court of Criminal Appeal failed, as it were, to leave it to the jury as opposed to expressing their own view, but given the very strong inferences that must be associated with his conduct on that occasion, do these other considerations really amount to a great deal?

MS INKSTER:   Well, in my submission they do, your Honour, because we are dealing with a case where the applicant has been convicted of a crime of wilful murder where the Crown case at trial, in my submission, is akin to something like, and I mean with no disrespect, and one can see from the submissions of the Crown, like a Monty Python script.  Suddenly nothing happened.  There was silence.  You cannot make silence significant or sinister by putting it in italics.  The fact was that the Crown case at trial was wholly circumstantial and dependent on the evidence of Smith and McDonald, two fellows whose evidence as accomplices required caution within itself, but now must require even more caution because of the fact that this evidence now shows that both the ‑ ‑ ‑

TOOHEY J:   Sorry, Ms Inkster.  There is a recent judgment of this Court in Meyers, given only a few weeks ago, dealing with a conviction for murder or wilful murder where there was no direct evidence but inferences were drawn from a number of matters, including the silence that followed upon obvious signs of a struggle or violence that were taking place in an adjoining room.  So there is no reason why an inference cannot be drawn from silence in all the circumstances if the circumstances warrant that.  In many cases it would be a highly significant consideration, that after a great deal of noise and signs of violence there is a sudden silence, particularly as in this case, where it is followed by such matters as the carpet being bloodstained, the carpet being cut up and removed and a number of other considerations.

MS INKSTER:   Yes, but that is, your Honour, if the events did in fact occur as put forward on that basis.  If we have evidence to suggest, and as I put in my written submission, that the death did not occur as and when it was inferred to occur, if we have some evidence which might raise the possibility that damning statements allegedly made by the applicant might not have been made, if we have evidence to that extent, evidence to the extent that is deemed admissible, surely then the matter of weight of that evidence goes back to the jury, to the jury to look at all those matters and make an assessment on a retrial.  Because once that evidence is admitted, the question of weight of that evidence is not a question for an appellate court to determine.

TOOHEY J:   Well, unless the evidence weighed against the accused is so strong, which is really what is being put here.

MS INKSTER:   Well, perhaps, your Honour.  But in my submission it is not to that extent.  You will see, your Honour, at page 165 of the appeal book the Chief Justice said in considering the fresh evidence at lines 22 to 25, he says - we are looking at the fresh evidence now:

The starting point is that it was open to the jury to find on the evidence -

But that is not the inquiry now, we are looking now at a fresh inquiry, because we have fresh evidence and the inquiry now is, is that evidence capable of raising a reasonable doubt in the mind of the jury?

HAYNE J:   The doubt as to his intent?

MS INKSTER:   Doubt as to his intent, yes.

HAYNE J:   Or doubt more generally?

MS INKSTER:   Well, and doubt more generally, your Honour.  But specifically, I think, the strength of the case at trial would have been - and on appeal- would be on the question of intent and that, as I would like to emphasise, is the reason why I have confined the special leave question to the aspect of circumstantial evidence and the crime of intent.  In my submission, if appropriate principles can be applied and an authority developed from the facts of this case, it will be an umbrella from under which most other cases will follow.  There will be few, I would submit to you, if any, cases which will come before your Honours again of this nature.  That is, where a body is found and forensic evidence is found subsequent to conviction.  And the fault, or otherwise, of the accused in keeping that evidence aside, your Honours, in my submission, is not an answer to denying his ability to have the matter retried.

TOOHEY J:   Well, it may be, otherwise it simply opens up the possibility that evidence which might, on its face, be quite damning to an accused person who has been convicted, could be the subject of an application for new evidence - for a retrial on the basis of so-called new evidence because it contains some elements that might be favourable to the accused.

MS INKSTER:   Yes, your Honour.  That is an argument that, perhaps, we are seeking to open the flood gates and that everybody will come forward and bring such applications.  But in my submission there are two basic hurdles that any applicant must overcome, that is, that the evidence must be admissible, so therefore it must be credible, it must be relevant, it must meet the requirements of admissibility which this evidence did, and then secondly, there is the hurdle of there being a miscarriage of justice or not and in all cases that will not be the case.

Your Honours, it is not simply a case that the applicant does not like or challenges the inferences that have been drawn by the appellate court.  It is a case that the approach taken by the appellate court to the assessment of the evidence before it was contrary to the authority of Ratten and Gallagher as to the manner in which fresh evidence is to be received and the court has merged that distinction between new and fresh evidence and we would invite the Court to consider developing an authority to do that completely, to do that not creating a hybrid test, but to create a firm test which sets in stone the approach of an appellate court to such evidence.

May it please your Honours, that is my submissions.

TOOHEY J:   Thank you, Ms Inkster.  We need not trouble you, Mr McKechnie.

This application invites the Court to traverse what are essentially questions of fact that were before the jury and were considered by the Court of Criminal Appeal.  In addition, the applicant wishes this Court to consider evidence which he chose not to present at trial and which, if anything, strengthens the case against him.  Notwithstanding the forceful submissions of Ms Inkster, there is nothing in the proposed grounds of appeal which would warrant a grant of special leave to appeal.  Accordingly the application is refused.

AT 4.39 PM THE MATTER WAS CONCLUDED