Byers v The Queen

[2001] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2000

B e t w e e n -

PATRICIA MARGARET BYERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 11.23 AM

Copyright in the High Court of Australia

MS P.M. BYERS appeared in person.

MS L.J. CLARE:   May it please the Court, I appear with my learned friend, MR C.W. HEATON, for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mrs Byers, you proceed to put your argument.

MS BYERS:   Your Honours, I appear for myself in this matter and I seek special leave from the decision of the Supreme Court, that decision handed down on 11 April 2000.  I have got several submissions I would wish to make on points of law and points of fact.  I have endeavoured to place before the Court as much material as I thought was possible for you to make a decision about this case.  Their Honour at appeal dismissed most of these as of no import, but there are so many facts and inaccuracies to put forward by the justices and the trial judge that it would be impossible to deal with them all.  I will, therefore, canvass the most crucial of these points, that I hope your Honours will bear with me and I apologise for my lack of expertise in this matter too.

The first I would like to bring to your notice is with regards to the fresh evidence.  The fresh evidence was not given due consideration and it is respectfully submitted that their Honours have erred in failing to do so.  The affidavits were supported at appeal by copies of the receipts for work carried out by both the witnesses.  Diary entries of the appellants support those dates and coupled with the facts stated by Mr Burrell that not on one but two occasions he had contact and has reason to be given credibility for that affidavit.

Derksen lived just five houses away from the house where he carried out the work.  The diary entries once again support his claim to pinpoint the time frame.  The unusual stonework and the close proximity to his home on an estate where neighbours had an awareness of each other surely makes the evidence credible.

McHUGH J:   One of the problems that you have in your application book is that none of this evidence is before us, is it?

MS BYERS:   Yes, your Honour, it should be before you.

McHUGH J:   It is not in the application book.  We have the documents – I do not know how they get before us – invoices from Argyle Factual Services, but none of this material is in the application book.  Has this material been seen by the Registrar?

MS BYERS:   The affidavits, your Honour, were sent in last week.  They were sent to the Court here in Brisbane and copies of those affidavits, plus the reports from the investigators and various other documents were also sent in, plus the authorities that I have cited.

McHUGH J:   Well, it is very irregular, but carry on, Mrs Byers.  These documents – the application books have to be settled by the Registrar.  Only relevant material should be in.  I am not suggesting that this is not relevant material, but it is for the Registrar to examine this material.  But anyway we will act on the basis that this material is properly before us.  So you carry on with your submissions.

MS BYERS:   Your Honour, may I respectfully state that the Registrar has said here that any other material that we needed to refer to that I put in under Practice Direction 3 of 1996 - and I did that last week; it was handed in last week and that included all those – I have got copies of those affidavits here if your Honour wishes to see them.

McHUGH J:   Well, no we have got them.  I have got them here.  I have got them, but the practice direction does not cover this sort of material, but anyway carry on.

MS BYERS:   Originally, when I asked if I could put them in the ‑ ‑ ‑

McHUGH J:   No, look, you are only wasting your valuable time.

MS BYERS:   Thank you.  Thank you, your Honour.

McHUGH J:   Go to the merits of your argument, please.

MS BYERS:   Yes, your Honour.  It is unlikely that he would forget this encounter.  Limited conversation does in no way diminish the truth or reality of the contact.  The appellant made a suggestion that the witnesses should have been cross‑examined to allay any doubt as to their credibility, and that is the appeals transcripts, which were also handed up last week, your Honour.  In Ratten Barwick sets the ruling down which I submit relates exactly to this case.

The fresh evidence standing alone had the capacity to destroy the Crown case and when combined with the other errors of facts in law in the summing up it created a fair trial, and I refer to Barwick again at Ratten and also Justice Menzies in Ratten, your Honour.  In the recent case of Button, the fresh evidence destroyed the Crown case.  It is not unknown for police to pursue a line to acquire a conviction that may not be in the interest of justice.  In Irving in 1997 is another case where the evidence of witnesses who held some knowledge that if presented would have caused the jury to have grave doubt as to guilt.

Many witnesses who held information that might have shed light in this present case were never presented by the Crown.  No explanation was ever given to the appellant.  I am mindful that the High Court has upheld the ruling that new evidence is not received, but the handwriting report of McCabe was presented at appeal but it was ruled not admissible.  Certain elements of the Irving Case hold relevance here, however, the time will not permit me to go into that but I submitted those under that practice direction, your Honour.

In the Condren Case the fresh evidence cast doubt on the verdict.  In this case it goes further.  It destroys the Crown case and the verdicts – and makes it a miscarriage of justice.  I would draw your attention to Gilvarry of 1990 where the new evidence was not put to test the cross‑examination and I ask that your Honours apply those tests relating to the fresh evidence and in conjunction with the receipts, the diary entries, the affidavits and all those supporting documents, this evidence meets those tests and those tests prove that a miscarriage of justice has actually occurred.

I would take you to the summing up and misrepresentation of the forensic evidence at court.  It is submitted that the very words of the judges are contradictory in themselves in which a fact of allegation of inference and they stated:

since it could not be proved what the spots consisted of; but if the evidence was accepted by the jury –

It seems to me that that is a contradictory statement just in itself because if we did not know what the spots were, then how could you draw an inference from something which was unknown.            The DNA came from an unknown source with no certainty of donor, although it is possible that it belonged to Gottgens.

The recent case of Button (2000) at page 427 at 3 highlights how that DNA actually worked for and against in gaining a conviction and then letting that man free.  What is of grave concern is that where there is no conclusive evidence upon which to gain a conviction then a distortion of the forensic evidence using misleading language is sometimes employed to convince a jury of an event which did not occur, in the case of Mr Button, that he raped a girl, and in this case, that a violent act took place, both of which there is absolutely no evidence.  In particular, I draw your attention to pages 30, 31 of the Australian Judicial Perspectives on Expert Evidence.

There is also a mistaken assumption by Justice Davies at appeal on page 59, line 1 to 10, that the DNA was consistent with the blood of Gottgens.  The DNA had no connection with blood.  It was of an unknown source and that the probability of 7,000 to one it is possible that it could have been somewhere else, although it is accepted that it could have been his as well.  The use of the words “consistent with” with there is only negatives and false positives ‑ ‑ ‑

McHUGH J:   Well, except that – I mean, that is hardly a fair way of putting it, is it?  The fact is that it matched that of Gottgens and the possibility of it coming from another person was only one in 7,000.

MS BYERS:   Yes, but those are – that on the basis of probability, that is certainly not a certainty, but it could have been his and there is no dispute.  We are not disputing the fact that it could have been his, your Honour.  It still does not state that it came from blood.

McHUGH J:   Well, it came from the wall of the Yatala residence, did it not?

MS BYERS:   That is right, yes.

McHUGH J:   And near the bed, which had disappeared mysteriously.  You said he took it ‑ ‑ ‑

MS BYERS:   Yes, your Honour.

McHUGH J:   ‑ ‑ ‑ notwithstanding that he was going in this small ship.  What was your theory about what he did with the bed, the only thing he took?

MS BYERS:   Your Honour, he did not only take the bed and that evidence – if you look at the evidence more closely you will see that that was hotly denied, that he did not only take the bed.  There was other things that he took as well.

McHUGH J:   Yes.  It seems a very strange thing to take, does it not?  I mean, a jury would be very suspicious of a claim that he took the bed.

MS BYERS:   But he took other things as well, your Honour.

McHUGH J:   Yes, I know, but take a bed to go on a ship ‑ ‑ ‑

MS BYERS:   He did not – he was not going on a ship, your Honour.  This is a misconception, that – I do not know where it came from, that he was actually going and taking – and there was something that was said that he took it on the 6th, and that is completely silly because he could not possibly have taken a bed of that size in a car on Friday the 6th.

McHUGH J:   Well, that is what the Crown says, that he ‑ ‑ ‑

MS BYERS:   Well, this is what they say, but it is not possible.

McHUGH J:   No, the Crown says he could not have taken it because he did not take it.  That is the Crown argument.

MS BYERS:   Yes.  He took it the weekend that I was not there, when I went to Mt Larcom.  He took the bed then, your Honour, but not to take it under his arm to go on board ship, certainly not.

McHUGH J:   Yes.

MS BYERS:   The summing up was misleading on many points and, in particular, on the forensic evidence and the passage at application book 59 at line 10 to 40 had the capacity to be grossly misleading.  The summing up was defective on issue of fact and failure to adequately direct, did not fully explain where the onus of proof lay, and I draw your attention to Van Leeuwen (1981) ‑ ‑ ‑

McHUGH J:   Yes, but what is the passage that you complain about?

MS BYERS:   There were many.

McHUGH J:   At page 59 – yes – but the judge says:

I can attempt to summarise it.  That really is:  in all the circumstances of which you are satisfied, are you satisfied beyond reasonable doubt that Carel Gottgens is dead; and, if so, that he was unlawfully killed with the intent to kill him by Patricia Byers.

Now, what is the matter with that as a statement of law?

MS BYERS:   There was no – there was no fairness put of the defence case, your Honour.  She never once said ‑ ‑ ‑

McHUGH J:   No, but you were just talking about error in terms of onus of proof.  You just referred to page 59.

MS BYERS:   Yes, your Honour.  I am sorry, your Honour.  I am very nervous.

McHUGH J:   No.  Well, just relax.  Just relax.  Take your time.  Take a deep breath and carry on.

MS BYERS:   Yes.  I did not think she adequately – she did not adequately state where the onus of proof really lay.  The onus of proof was on the Crown to prove that he was actually dead.

McHUGH J:   Your point is that when she says:

Are you satisfied beyond reasonable doubt that Carel Gottgens is dead –

that the jury may have understood that as meaning that ‑ ‑ ‑

MS BYERS:   Well, if you think he is dead, yes.

McHUGH J:   Yes.

MS BYERS:   Rather than emphasise where the onus of proof lay.

McHUGH J:   Well, if you go back to page 8, her Honour says:

For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove beyond reasonable doubt she is guilty.  This means that in order to convict, you must be satisfied beyond reasonable doubt of her guilt.  The prosecution has to satisfy you beyond reasonable doubt of each element that goes up to make the offence charged.

Et cetera.  Well, that is a fairly strong direction.  Then over on page 9:

If you are left with a reasonable doubt about guilt, your duty is to acquit.

MS BYERS:   Yes, your Honour, but then she went on to give errors of fact and she used misleading language in conjunction with the forensic evidence and other areas where she actually made mistakes.  So it has a tendency to override when she uses those words in the beginning of her summing up and at the end of it then uses misleading language.

McHUGH J:   Well, do you concede that the case against you was a very strong one on the surface, even though you say you were not guilty of the offence?  Do you concede the Crown case was a strong one?

MS BYERS:   No, your Honour, I do not, because none of the facts were actually – none of them actually matched up.  They had these little pieces of evidence that they ‑ ‑ ‑

McHUGH J:   Well, they are your forgeries, the fact that this man disappeared.  Now, you conceded that you had forged various documents.

MS BYERS:   Three of those, your Honours.

McHUGH J:   Yes.  This man had disappeared.  No one has ever seen him since.

MS BYERS:   Well, I beg to differ, your Honour.  I think they have.

McHUGH J:   Well, sorry, you called some witnesses to say that they did, but those that are close to him did not see him.  The woman he was going to marry did not see him.  He never arrived in the other country.  But anyway – but, Mrs Byers, we do not sit here as a Court of Appeal.  We only grant special leave if there is something special about the case.  Your arguments seemed to be directed to errors of fact on the part of the trial judge or on the part of the Court of Appeal.  They are not matters that would ordinarily require a grant of special leave from this Court.  We are not an appellate court.

MS BYERS:   I understand that, your Honour, but the fresh evidence I believe had the capacity to bring down a different verdict.

McHUGH J:   But the Court of Appeal considered it and took a different view.

MS BYERS:   With all due respect, your Honour, the Court of Appeal almost disregarded it by saying that those people who gave that evidence had no reason to remember those contacts and my argument is that they had every reason to remember those contacts because they had documentation to back it up, to put it in the time frame as well, and those people are very credible people.

McHUGH J:   Yes.  Carry on.

MS BYERS:   I am sorry, your Honour.  Yes.  A warning of the danger of rejecting evidence of the defence witnesses – and I am talking about the Maitland evidence here and also the evidence of Mr Murray and also Mrs Payne, who gave evidence on my behalf – should have been corrected with a warning that perhaps – some sort of warning should have been given that it was up to the defence to prove that what these people were saying was not actually correct and I believe that there are some rules in the Court that actually say that if there is any misunderstanding to be given to a jury that a judge should actually make them aware that these people – they had to give a warning to say that these people’s evidence was actually evidence, the same as the prosecution witness’ evidence.

I believe her Honour did not give enough leaning towards the judicial balance in her summing up.  She spent a lot of time on Crown evidence and then never gave the hypothesis of the defence case, your Honour.  In Green in 1971 on paragraph 2 the judge decided in Thomas that a summing up that is lacking in judicial balance is a reason to conclude that a miscarriage of justice can occur.  In Barca in 1975 at page 104 and 105 there is further comment about summing up.  It states that in summing up a jury must be satisfied of certain facts.

Nothing that the judge said in directions gave consideration to the defence’s assertion that Gottgens was still alive and that no murder had even been committed.  It was a totally circumstantial case presented by the Crown.  On the other hand, the defence had primary witnesses whose evidence supported the defence case on primary facts.  This was backed up Murray, Payne, the applicant and, again, supported by two primary witnesses, Burrell, Derksen and, to a lesser degree, Smith at appeal.

On the misdirection of a critical fact in Cleland, here the DNA evidence with the reference to human blood was a glaring error.  Her Honour Justice Atkinson made reference to there being human blood, consistent with human blood.  There was no such evidence ever given that any of this – that any of this forensic evidence, indeed, was blood.  They had presumptive tests.  They had false positives.  But there was no evidence whatsoever of any blood and she kept saying things like “consistent with” and at one stage she said “consistent with human blood”, which is a glaring error in summing up, your Honour.

McHUGH J:   Yes.

MS BYERS:   Their Honours remarked that the trial judge made a comment about the evidence given by the applicant.  Her Honour made an error of fact in stating that McConnie and Cummins had dinner with the applicant and Gottgens.  This was an error that could have caused the jury to be severely misled.  Mr McConnie and Mr Cummins in actual fact never had dinner with myself and Mr Gottgens and it was never stated in evidence that we did and to suggest that they did may have cast some sort of doubt as to why these people were unwilling to give evidence in the court when in actual fact they had only just been in the tavern and had not had dinner with us at all.  If they had had dinner, then there was a good possibility they would have remembered the encounter, but they did not have dinner and her Honour was in error in stating that.

It is my submission, your Honour, that all these small errors added up to a deficient summing up and it misled the jury.  There was so many of them that I cannot go into all of them.  The appeal judges failed to acknowledge that the allegations of forgeries and lies were more than likely to cause the jury to have a view of the accused in a bad light and careful direction was needed to ensure that a fair trial was had.

McHUGH J:   Well, then they showed motive, that you had a real motive for murdering this man and the forged letter to the solicitor and matters of that nature, they all presented a powerful case that you had a motive to murder him, and then there was the evidence of the American Express transactions and the other documents and the forgeries.  It is hardly surprising that the jury convicted you, Mrs Byers.  I know you assert, “Well, they didn’t prove that he was dead, so there was no murder”.  But all the circumstances pointed to him – or many of the circumstances pointed to him as being dead and you being the beneficiary of his death.

MS BYERS:   With all due respect, your Honour, I say that a motive does not constitute an offence.

McHUGH J:   No, it does not.  There is no doubt about that.  It does not constitute an offence.  But it becomes a process of elimination, as if he is dead, who would have killed him?  On the Crown case, the facts pointed very strongly towards you.  Well, Mrs Byers, I see that your time is up.  So if you would resume your seat, please.  Yes, thank you, Mrs Byers.

MS BYERS:   Thank you, your Honour.

McHUGH J:   We need not hear you, Mrs Clare.

The Court is of the view that it is not arguable that there has been any miscarriage of justice in this case.  Accordingly, the application for special leave to appeal is refused.

Adjourn the Court.

AT 11.45 AM THE MATTER WAS CONCLUDED