Davis v The Queen

[2000] HCATrans 391

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2000

B e t w e e n -

BRIAN DAVIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 11.04 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC   If the Court pleases, I appear for the applicant, with MR S.J. ODGERS.   (instructed by Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent, with MS P.J. HOCK.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Mr Game, this application is about 12 months out of time, is that right?

MR GAME:   That is correct, your Honour.  There is an application for extension of time which I understand is not opposed.  The explanation for the delay appears at page 69 of the book and I can elaborate.

KIRBY J:   You first said no, and then you read RPS and you said yes.

MR GAME:   That is right.

GLEESON CJ:   The application is not opposed?

MR ELLIS:   No, your Honour, given what has happened in the Azzopardi which was stood, I think, pending for about 12 months on RPS.  The situation really is no different here, albeit that the application itself was late.  Had the application been made at the same time, it is unlikely to be any further progressed than it is now.

GLEESON CJ:   Very well, we will grant the extension of time.  Yes, Mr Game.

MR GAME:   If your Honours please, this case in some respects is similar to Azzopardi which particularly focuses on the Weissensteiner aspect of the directions.

KIRBY J:   I am not familiar with that matter.

MR GAME:   Sorry, Azzopardi is a case which has been granted special leave.

GLEESON CJ:   It is listed for hearing.  Azzopardi is listed for hearing on 11 October.

MR GAME:   Yes.

KIRBY J:   Why would we therefore not stand this matter over until after Azzopardi, then you will have the great pleasure of reading both RPS and Azzopardi.  I mean, on one view, this is a very, very, very strong Crown case.  I mean, a little girl walks for nine kilometres and she is only aged nine.  She does so immediately and tells her mother virtually immediately.  I mean, you get a lot of variation in these cases but, as these cases go, this is a very strong Crown case.

GLEESON CJ:   What was the defence case about that at the trial?

MR GAME:   He gave an explanation in his record of interview – this appears at page 56 of the application book – which was excluded in his record of interview by the trial judge.

GAUDRON J:   On your application?

MR GAME:   Part of it was on the prosecution’s application; part of it contravened section 409B; and part of it concerned other allegations that were made in respect of him.

GLEESON CJ:   Was any part of it excluded on the application of defence counsel?

MR GAME:   I think some part of it.  I am sorry to - - -

GLEESON CJ:   What was the explanation?

MR GAME:   The explanation concerned the fact that there were other allegations being made against him and she may have been afraid of him.

GLEESON CJ:   I would like to understand that a little better.  What was the - - -

MR GAME:   There were allegations of sexual assault; other allegations of sexual assault against him being made.

GLEESON CJ:   Mr Game, what I would like to understand is this:  at the trial, as the defence case was conducted, what was the explanation, if any, put to the jury on behalf of the accused as to why this nine-year-old girl might have walked seven kilometres in the dark?

MR GAME:   Your Honour, the first thing she said was that she got scared and went home.  I think the defence relied on that.  That is to say, she got scared of being at the house and wanted to go home and it was not explained beyond that.  But to say, your Honour, as the trial judge said, in effect, that this is a fact that the accused had within his knowledge and could explain, is to make an assumption which is adverse to him which is a matter that the Crown has to prove in its case and it really does put the cart before the horse to, as it were, say he only knows how the circumstances were that she came to go home.  That assumes that he is guilty.

GLEESON CJ:   Perhaps I had better get something clear about the facts, Mr Game.  I am not 100 per cent sure.   She was spending the night at his place?

MR GAME:   Yes.

GLEESON CJ:   Now, who else was there?

MR GAME:   Two boys.

GLEESON CJ:   And your client?

MR GAME:   Yes.

GLEESON CJ:   So, there were four people there?

MR GAME:   Yes.

GLEESON CJ:   He was the only adult?

MR GAME:   Yes.

GLEESON CJ:   And how old were the two boys?

MR GAME:   Seven and nine, your Honour.

GLEESON CJ:   And how old was your client?

MR GAME:   I cannot remember.  In his 40s, I think.

GLEESON CJ:   Forties, all right.  So, he is an adult in his 40s in a house with three children about seven or nine?

MR GAME:   Yes.

GLEESON CJ:   And he is in charge of her for the night?

MR GAME:   Yes.

GLEESON CJ:   Baby sitting?

MR GAME:   Yes.

GLEESON CJ:   And she then leaves and walks this distance in the dark and ends up sleeping in a car?

MR GAME:   Yes.

KIRBY J:   And it is a long distance.  It is nine kilometres.

MR ELLIS:   Seven, I think, your Honour.

KIRBY J:   Seven, is it?

MR GAME:   Yes, but, your Honour, there is no logic in saying that he has, with the facts within his exclusive knowledge, in the Weissensteiner sense that would explain that fact.  That is the very assumption against him which forms the subject matter of the Crown case.  This is not a case where, to use the language of Weissensteiner, the facts are peculiarly within his knowledge.  That is to make the very assumption against him which you are seeking to prove.  That is why Weissensteiner cannot apply to this particular situation and that, in my submission, is the effect of the majority judgment in RPS.  You cannot assume that there facts exclusively within his knowledge when all you have from him as in his record of interview is a denial of any knowledge of this.  Her case is not a circumstantial case, it is a direct evidence case.  It is her account.  Now, all these directions do – and there were a number of points made about inconsistencies in the accounts that she made.  But all you are doing is elevating her account.  You are saying, in effect, “If you have any doubts, then put those doubts to one side”.  That is the effect of it.

I should say also to say that she walked home – he can explain that she walked home.  She was found in the car back at her home at 11 am in the morning.  Now, those are the facts that one knows, apart from her oral testimony.  To draw a number of inferences from that and then to say, “Well, he has to explain those facts”, is really to reverse the onus of proof.  Now, in my submission, this is singularly and clearly a case – and I will take the Court to the directions given in a moment – in which it was quite inappropriate to give those directions, particularly bearing in mind that not only was there a record of interview but to the certain knowledge of the trial judge the explanation that had been proffered had been excluded from evidence.  It was not before the jury.

GLEESON CJ:   What was the explanation again?

MR GAME:   Well, there were a number of passages in the record of interview but the explanation was that she may have been afraid of him because she overheard the parents talking about allegations of sexual assault against him.

KIRBY J:   By somebody else?

MR GAME:   By somebody else, yes.  Now, that is quite plausible.  That is not an extraordinary proposition by any means, in my submission.  Now, if one goes to the directions – the directions appear at page 51 of the application book.  They start there at 51, and over at page 52 the trial judge says he has not always exercised that right of silence.  Again, we would submit it is not necessary to point to, as it were, what has been characterised as the selective exercise of the right of silence.  But then we come to this passage:

Now the only effect that his failure to give evidence may have on you is this.  His failure to give evidence here may affect the value or weight that you give to the evidence of some or all of the witnesses who have testified in the trial if you think the accused was in a position to himself give evidence about the matter. 

Now, what does that mean?  What matter?  What peculiar facts are these that are within the knowledge of the accused?  All the jury would interpret that to mean is if he was in a position to give evidence at the trial.  They could not possibly construe that as meaning some facts peculiarly within his knowledge, which is the only circumstance in which a Weissensteiner direction should be given.  And then:

But it may enable you to give, to help you to evaluate the weight of other evidence in the case, that he has not given evidence.

Well, all that does is elevate the evidence of the complainant.  They would not need to go to this direction if they had no doubts about her evidence.  The effect of this is to say, “If you have doubts about her evidence, then you can put them to one side”.  Now, that is the effect of that direction. 

GLEESON CJ:   Well, that seems to involve a sequential process of reasoning on the part of the jury.  Presumably, juries think about everything before they finally make up their minds and one of the things they think about is:  how did it come about that this girl who was in the care of the accused left the house in the dark, walked seven kilometres and spent the night on her own in a car?  She says she did it because she was frightened.  In considering what weight you attach to that, you can take into account that you have not heard any other explanation.

MR GAME:   Well, first of all, they did have his explanation, his explanation for what happened during the evening, which would include no explanation for why – when I say his explanation of events, that exculpate him.  His explanation before the jury is, “I can’t say why she went home.”  But the question is not the question your Honour the Chief Justice has posed.  The question is:  are there facts peculiarly within his knowledge by which he can explain why she walked home?  And the answer is no, without one making an assumption about acceptance of the prosecution case.  That is the whole point about Weissensteiner.  It is really focused on drawing inferences from established facts.

KIRBY J:   What is an example where it would be within the exclusive knowledge of the accused?

MR GAME:   If an accused person writes some specific notes, some careful notes to themselves from which inferences are to be drawn by the jury connecting those notes with another document and those notes are proved to come from the accused, only the accused person can explain those notes.  That is a classic type of an example - clearly in that circumstance something peculiarly within the knowledge of the accused.  That is not this case at all.  In context, this case is an example of the belief and application that Weissensteiner directions were given in every case.  This case was both not only before RPS but this case was before OGD as well.  But Weissensteiner directions should be given in every case.  Incidentally, these directions did not accord with OGD in the respect that the judge did not say to the jury, “There may be an explanation for why he didn’t give evidence”.

GLEESON CJ:   Whether he was right or wrong, the judge relied on Weissensteiner.

MR GAME:   That is right, yes.  If we come to the next bit of these directions, the judge says:

I do not want to be more specific than that, because it is a matter for you –

but then he is more specific in a sense.  He gives an example about – he said a man:

was doing 100 kilometres an hour in a 60 kilometre area, and the accused…..although he pleaded not guilty, did not testify –

but that is a case where the accused was driving along in a car.  That analogy is singularly inapt to this particular situation.

KIRBY J:   I am just a little concerned, Mr Game, that we are becoming the super Court of Criminal Appeal of Australia.  I mean, here is a case which a robust jury was entitled to take a very strong view about.  It is a very vivid factual element that a little girl goes and walks on a dark road seven kilometres in the middle of the night and is found sleeping found in her parents’ car.  I realise what you say has a certain logic about it, but it is really a jury’s entitlement to look at the reality of this factual sequence.  We just cannot look at every criminal appeal in which there is some point.

MR GAME:   But, your Honour, this case is all about the directions given in respect of the failure of the accused to give evidence.  All of what your Honour has put to me are matters that have come entirely from the account of the complainant.  If I could just finish with the directions and then say a little bit about the judgment of the Court of Criminal Appeal.  At page 53:

Even if the evidence that you are concerned with was evidence that was dealt with in his interview with the police, the value or weight that you give to that particular piece of evidence, may have been affected one way or another if you had observed the accused himself giving evidence.  If you had seen his demeanour in the witness box, if you had heard what he had to say, if you had seen him cross‑examined, all of that may have affected the way in which you look at other evidence –

This is suggesting that things may have even got worse for him, that his failure to give evidence may be explained by the fact that his demeanour may have been such that he worsened the position for himself by giving evidence, ie, you are giving his denials even less weight.  All of those directions, in our submission, are inappropriate for a case such as this.

If one moves on in the judgment, at page 54 the Court of Criminal Appeal applied the decision in OGD and the second principle in OGD which is cited there at lines 10 to 16, that proposition is substantially qualified by the judgment in RPS, because the effect of RPS is both to exclude altogether Jones v Dunkel-type directions but to say in effect that Weissensteiner directions should only be given in the circumstantial case where knowledge of facts from which inferences are drawn is peculiarly within the knowledge of the accused person.

KIRBY J:   Can I go back to the question I asked at the beginning.  Why is it not appropriate for this Court to stand this application over?  The general issues will be debated in Azzopardi.  The Court will have its decision and then, when you get that decision, you can renew your application if that decision lends support to you.

MR GAME:   That is one course that could be ‑ ‑ ‑

GLEESON CJ:   Am I not right in thinking that your client was sentenced in about April 1997?

MR GAME:   Yes.  I was going to say that, your Honour.  He is now ‑ ‑ ‑

GLEESON CJ:   So he will have been in gaol about four years or so by the time a decision is given in Azzopardi?

MR GAME:   Quite, your Honour.

GLEESON CJ:   Four out of a six-year sentence?

MR GAME:   Yes.  One alternative proposition I would put to the Court is that the special leave application itself be referred to the same Court that hears Azzopardi so that, as it were, this case could be resolved at the same time as Azzopardi, and I would not have thought it would take up an undue amount of time.

GLEESON CJ:   I can understand the attraction in that, Mr Game, but there is one practical problem, I have to tell you.  We have listed two cases on 11 October.  One of them is Azzopardi and one of them is a case which the Judge who with me granted special leave to appeal and I both thought would really be a very short case.  If the course that you are proposing were followed, we would then have three cases listed for 11 October.

MR GAME:   Could I say this.  I spoke to Mr Byrne and he thought that Azzopardi would only take about an hour and I have discussed it with the Crown and they do not seem to ‑ ‑ ‑

GLEESON CJ:   I see.  I did not realise that.  All right, I understand that suggestion.

MR GAME:   That is my suggestion, that it could be dealt with.  If the Court is unhappy about granting special leave, as it were, the application could be referred and we could be heard on our special leave application at the same time before the Bench that hears Azzopardi.

KIRBY J:   I thought I saw Mr Ellis indicating he did not oppose that course.

MR GAME:   He does not oppose that course.

MR ELLIS:   Your Honours, I did have some inquiries made with the listing.  Apparently the day following, there is an industrial matter which is listed which it was suggested may not in fact be all that long.

GLEESON CJ:   No, the day following there is an immigration matter on which we were only sitting a Court of three, because this is one of these original jurisdiction immigration cases.

MR ELLIS:   The suggestion perhaps was that if we did spill into that following day by an hour or so that it may be possible to meet that.  Mr Byrne I think indicated about an hour and a half for Azzopardi.  I would be guided by that and I would only take probably half an hour.

GLEESON CJ:   All right, we will take that course.  What we will do is, instead of making a decision as to whether to grant special leave to appeal in this matter, we will refer the application for special leave to appeal to be heard on Wednesday, 11 October 2000 by the same Court that hears the case of Azzopardi v The Queen.

MR GAME:   Can I take it that the Court would expect the parties to put on full submissions to hear it in the event that if the Court were minded to grant special leave, they would hear the argument?

GLEESON CJ:   Yes, that is right, and we would expect to have the same material before us as we would have on an appeal.

MR GAME:   Yes, and we will be there after Azzopardi.

GLEESON CJ:   After Azzopardi.  It will be listed for hearing following Azzopardi v The Queen and before Liftronic Pty Limited v Unver.  We will adjourn to reconstitute.

AT 11.25 AM THE MATTER WAS CONCLUDED