Burke v State of Queensland & Ors

[2015] HCATrans 85

[2015] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2014

B e t w e e n -

DOMINIC BURKE

Applicant

and

STATE OF QUEENSLAND

First Respondent

GEORGE PRICE

Second Respondent

CUBETT HARRIS

Third Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 APRIL 2015, AT 11.37 AM

Copyright in the High Court of Australia

MR J.M. HORTON, QC:   If it please your Honours, I appear with MS A.J. STOKER for the applicant.  (instructed by the applicant)

MS E. WILSON, QC:   If it please your Honours, I appear with MS J. SORBELLO for the respondents.  (instructed by Crown Law (Qld))

KIEFEL J:   Yes.

MR HORTON:   Your Honours, the difference between the parties about the arrest power at issue in this case is that the respondents would treat it as being discharged completely by the officer’s state of mind and intention and discharged absolutely and in that sense be unexaminable.  The subjective mindset of the arresting officer would, in effect, put the exercise of the power beyond the examination by the court in circumstances where it was merely said that the arrest was to question or to further the investigation.

Our primary submission is that section 365(2) of the Police Powers and Responsibilities Act uses the word “for” when it speaks of the purposes for which the arrest might be made as “for” in the sense of in actual fact or in truth.  So the conditions for the exercise of that power, in our respectful submission, require or compel the court to have regard to all the evidence properly informing that inquiry which would include the objective circumstance of the arrest.

Both courts below took the approach for which the respondents here contend.  Could I take your Honours please to paragraph [38] of the Court of Appeal’s reasons which appears at page 21 of the application book?  Your Honours, [38] and [39] on that page are the two paragraphs where Justice of Appeal Gotterson disposes of the argument which is before the Court today and his Honour had the agreement of Justice of Appeal Fraser – Justice Jackson dissented.

Could I ask your Honours please to turn to paragraph [38]?  The officer gave as the purpose of the arrest those exact words which appear in the section itself to investigate and question, but he also gave other purposes there recorded in [38].  He said he: 

was prompted to act because he “ . . . was also concerned about the accuracy of the address –

and because the applicant -

would not accompany him for the notice to appear.”

What his Honour Justice of Appeal Gotterson said in paragraph [38] was that his Honour below had:

accepted Harris’ evidence –

That is the police officer -

that the arrest was in accordance with –

the section.  That, in our respectful submission, is the error.  It fuses a question of fact and of law and it treats as decisive what a police officer says was his or her purpose for effecting the arrest.

KIEFEL J:   Is the question, though, Mr Horton, whether or not a primary judge is in a position to accept that evidence where it is not challenged?

MR HORTON:   The difficulty is this, in my respectful submission.  Harris’ own evidence is incompatibly inconsistent.  What I mean by that is one cannot decide to arrest because a person will not accompany you and also to question about the offence or investigate because one has already decided that the charge is to be laid.  The investigative stage has ceased.  So on his own evidence those two propositions cannot stand.  I cannot both effect an arrest to further the investigation and have decided already to charge the individual because they are mutually exclusive propositions.  That is the difficulty with his evidence; first of all, that it is internally inconsistent.  The court cannot, in my respectful submission, select from a range of purposes those which might satisfy the section if they are inconsistent with others.

KIEFEL J:   That and the other piece of evidence which I see Justice Jackson relied upon, which was when Harris was asked whether he had anything further to do with the applicant after his arrest and he said no, which was the principal purpose of the arrest.

MR HORTON:   Yes.

KIEFEL J:   These aspects of the evidence, thought, rather point out, do they not, the need for there to be cross‑examination to elicit the truth about it and to identify in clear terms for the primary judge the difficulties with the evidence and I should say to give the police officer an opportunity to answer?

MR HORTON:   Yes, in our respectful submission, for three reasons.  One is the reason to which Justice Jackson alluded, saying in effect that the fact he was not cross‑examined did not mean the trial judge should not have had regard to all the evidence.  Second, on a proper construction anyway of the section, when one looks to what “for” means – the very fact your Honour just mentioned is decisive, that is, in fact nothing was done after the arrest.  In fact, no purpose was executed.  The only thing that was done after the arrest was he was asked about his address, something which, as Justice Jackson says, falls within section 40 and, therefore, outside the scope of his arrest power.

KIEFEL J:   But when Justice Jackson said that regard must be had to the whole of his evidence and, as you would say, including internal inconsistencies that points up a requirement of fairness which requires cross‑examination, does it not?  You are asking for inferences to be drawn without an opportunity to explain the inconsistency.

MR HORTON:   No, for this reason, in our submission.  First, it is unnecessary on the rule in Browne v Dunn to say to a witness, “There is other evidence which contradicts you”, or “You’re not corroborating your evidence by the wider objective circumstances”.

KIEFEL J:   All right.  Perhaps that is not the correct way to approach it, particularly since this is a police officer giving evidence.  Perhaps it is more correct to approach it in this way:  that we are not talking about fairness to a witness generally, particularly in, say, a defence; but we are talking about a witness for the prosecution who is giving evidence, and does give evidence, which, if it stood alone, would be sufficient to carry the day.  That is, he says my purposes are X and it follows they are lawful purposes.  But he adds to that that there are other matters.  When he is asked about it, he says, for instance, he did not ask any further questions.  Do those matters not have to be put directly to him before one can say that his, in effect, averment, which would otherwise be sufficient, should be doubted and given less weight?

MR HORTON:   It would have been better had they been.  We accept that.

KIEFEL J:   But was it not necessary to do so if one is to say it has a lesser effect in terms of evidentiary weight?

MR HORTON:   Not necessarily for two reasons.  First, against objective circumstances the bare fact that, in fact, nothing was done after the arrest besides asking about his address ‑ ‑ ‑

NETTLE J:   That could not stop it being for legitimate purpose, could it?  If his purpose truly were to arrest him so that he could question him and for one reason or another he then after did not, it would not stop it having been his purpose.

MR HORTON:   Well, it might not stop it being the purpose, your Honour, but it stops the evidence of it being his purpose.  Can I explain it in this way?  If I set out to do something, I set out to do it for that purpose.  One expects in the ordinary course to see me having achieved or commenced that purpose – embarked upon. 

The difficulty here is there is no embarking, so one never sees it beginning to be effected.  One would expect to see, for…..to be the case, some intervening events, some explanation why I could not effect my purpose or why it was no longer necessary.  Here there is that absence.  We have an embarkation for a purpose and it inexplicably for some seven hours – despite some seven hours elapsing, the purpose never being effected or embarked upon.  All that is asked for is an address. 

NETTLE J:   Well, it comes down to a submission, does it not, that the judge should have disbelieved him because he did nothing about it after the arrest.

MR HORTON:   There is that in this case, that one is led to saying what Harris says about the arrest on one of his versions cannot be right.  He gives many.  But, your Honour, even if one has to resort, as we say is not necessary once the section is properly construed to principles like those in Fox v Percy, this is a classic case.  Incontrovertible facts, objective circumstances or, as Justice Jackson says at paragraphs [69] and [70], the only evidence favouring the purpose which Harris contended was Harris’ own evidence and only part of Harris’ evidence.  Justice Jackson correctly, in our respectful submission, at paragraph [70] says:

the only evidence which supported the finding that Harris intended to –

pursue the lawful purpose was his statement at the time of the arrest ‑ ‑ ‑

NETTLE J:   Yes, thank you.

MR HORTON:   So, even if it is a Fox v Percy point, one still gets to the same result which is that any appellate court is in as good a position readily to dispose of Harris’ assertion at the time of the arrest.  That is why, in our respectful submission, Justice Jackson was able to do so.  Of all the judges below, he is the only one, in our submission, who correctly construes the section, has regard to the principle of legality, has regard to that provision’s associates, section 40 about question and so forth, and yet his Honour is able to guide his way through the evidence, apparently effortlessly, to reach a conclusion which this case, in our respectful submission, compels and that is that the true purpose cannot be the purpose which was stated at the time of the arrest.  It must be one of the others the police officer stated or some other purpose. 

You have seen, your Honours, that we would urge that the result follows very much from the application of a principle of legality as articulated by this Court recently in Lee v NSW Crime Commission, also recently in the Court’s more recent decision this week of Independent Commission against Corruption v Cunneen.  I do not need to take your Honour to either of those cases because the principle, in our respectful submission, is firmly engaged in this case because it is one that deals squarely with the liberty of the subject. 

We would submit, contrary to what is said against us, that the necessary evidence and all the necessary evidence is before the Court.  When Justice Jackson makes the observations he does, he makes them of course as a dissentient so they are not findings in a strict sense.  But no one cavils on the outlines with the correctness of what Justice Jackson records.  The only question then is how does one regard Harris’ evidence in the proper context? 

We would urge this Court that the reasoning of Justice Jackson is to be preferred for these reasons.  First, it gives effect to those statutory construction rules, long established, such as the principle of legality.  Second, his Honour construed the provision in the context of its associates.  For example, he said, questioning cannot be on its own, and was not in this case he says, one that engaged the provision because other provisions exist by which that might have been pursued. 

The police officer was concerned because there is this apparent inconsistency in some court papers the applicant was serving on his associate police officer, which of course was an address for service with the address he gave, but nothing about those two addresses gives rise, in our respectful submission, for any need to question.  It is quite common for an address for service not to be one’s own residential address.

Third, if the reasoning of the majority is to be preferred, then the provision becomes a general power detention.  What happens is as both the trial judge did and, in our respectful submission, Justice of Appeal Gotterson, is that they treat the evidence of the officer as decisive on the point even if that officer has given contradictory evidence on the very same point. 

We would in the end urge this.  The facts in this case remain these - that the applicant was never questioned and the offence was never investigated in a way that involved the applicant after he had been held for seven hours.  He is held in a watchhouse in very close proximity to a

magistrate but never taken before a court and then released, and we would urge that disposition of this appeal would define more clearly for courts below and the arresting officers the limits of the arrest powers in that provision which in this case, we say, were disregarded.  If it please the Court, they are our submissions.

KIEFEL J:   Thank you, Mr Horton.  We need not trouble you, Ms Wilson.

In this matter, the Court considers that there are insufficient prospects of success to warrant the grant of special leave.  Special leave is refused.

MS WILSON:   Your Honour, we make an application for costs.

MR HORTON:   Your Honour, we have pointed out in the book that my client is impecunious – I do not think it is accepted but one could accept on the material, on all the evidence, that my client is not someone who fortune has favoured.  On those grounds, we resist the application.

KIEFEL J:   In the particular circumstances of this case, we do not consider it appropriate to make an order for costs. 

AT 11.53 AM THE MATTER WAS CONCLUDED