Davis v The Queen

[1994] HCATrans 204

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B26 of 1993

B e t w e e n -

SHANE SEBASTIAN DAVIS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Davis 1 11/2/94

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 1994, AT 11.00 AM

Copyright in.the High Court of Australia

MR S.E. HERBERT, OC: May.it please the Court, I appear with

my learned friend, MR A.J. GLYNN, for the

applicant. (instructed by J.H. Hodgins, Director,

Legal Aid Office (Queensland))

MR M.J. BYRNE, OC:  If it please the Court, I appear with my

learned friend, MR J.R. HUNTER, for the respondent.

(instructed by D. Field, Solicitor to Director of

Prosecutions)

MASON CJ: Yes, Mr Herbert.

MR HERBERT:  The point raised in this case concerns the

application of the proviso to the common form

criminal appeal statute. The short point is this:

the most recent authority on the application of the

proviso is to be found in Wilde v Reg, 164 CLR 365.

McHUGH J:  We gave judgment in a case yesterday on the

proviso, Mr Herbert.

MR HERBERT:  I withdraw the submission that this is the most

recent authority.

MASON CJ:  I do not think the judgment is going to provide

any illumination for this case, so you need have no

misgivings.

MR HERBERT:  Thank you, Your Honour. Could I go to the

judgment of the majority in Wilde at page 374. The

purpose of this is to submit that the application

of the proviso involves no simple exercise of

weighing the strength of the Crown case to

determine questions of miscarriage but involves a

two-stage test, an exercise which the Court of

Appeal failed to perform. I refer to the middle

paragraph at page 374 of Wilde:

The evidence in relation to the first of

the sexual attacks was markedly weaker than

the evidence in relation to the second attack.

Leaving the facts, I go on:

It is most unlikely that the jury would have

felt it necessary to have recourse to the

evidence relating to the first occasion in

order to establish the identity of the
applicant on the second. This is borne out by
the acquittal of the applicant upon the count
of theft on the first occasion ..... When viewed

in context, it does not appear that the

evidence wrongly admitted in relation to the

counts upon which the applicant was convicted

can have carried any significant additional

weight having regard to the other evidence.

Davis 11/2/94

This is, of course, to take into account the strength of ·the prosecution case upon those

counts and the weakness of the defence, but it

is to do so for the purpose of determining the

gravity and significance of the error and not

for the purpose of determining whether the
jury would inevitably have convicted

notwithstanding the error.

That, it is respectfully submitted, means this,

that the first task set a court of criminal appeal

in the application of the proviso is to determine

whether the irregularity or error below is of such

a character to be properly described as fundamental

or as going to the root of the proceedings or the

heart of the proceedings and thus depriving the

trial of the quality of being a fair trial

according to law. In this there may be involved an

area of questions of degree but at the end the

answer determines whether or not one may go on to

consider the application of the proviso.

The first thing to determine is: is it so fundamental? And only after that conclusion is

against an appellant may the Court consider the

application of the proviso. Here the Court had not

performed that exercise or, with all respect,

anything much resembling it. The judgment of

Mr Justice Pincus, which is the principal judgment

on the facts, even concludes with this language. I

will begin, with respect, where the proviso begins.

It is at page 52 of the record, line 41. His

Honours says:

It remains to be considered whether, if I

had been of a contrary opinion, with respect
to the admission of the Bett confession or the

exercise of the discretion just discussed, the

appeal should have been allowed. As I have

pointed out, the circumstances, speaking

generally, pointed strongly toward the

appellant's guilt.

We accept that.

It is unnecessary to reiterate them in detail,

but particular mention should be
made ..... concerning the fingerprints of the

appellant found on objects ..... moved during

the afternoon of the murder to a position in

which they concealed the murdered girls's bag

and purse. It was not disputed that they were prints of the appellant and no explanation for

their presence gf was advanced.

None occurred to the learned judge.

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Keeping in mind the blood matching and the

footprints, -the appellant's prospect of

acquittal, even if successful in having the

evidence which was objected to excluded, must

have been extremely small.

That is alternative language, we would submit,

for a poor, but real, chance of acquittal. So we

submit that even applying the court's own language,

the proviso was inappropriate here. There is a

recognition there of some small chance of

acquittal. There were in this case, really, two

categories of evidence. One category of evidence

was forensic and thus circumstantial in that it was

capable of leading to the conclusion that the
applicant was in the vicinity of the place where

the girl was murdered at a time very close to the

time she was murdered. That evidence - - -

McHUGH J: It was more than "in the vicinity", was it not?

There was a 98 per cent probability that his blood

was in the toilet cubicle where her body was.

MR HERBERT:	We accept that the evidence was sufficient to establish that he was, in fact, in the cubicle.	I
was coming to the detail of it, Your Honour.
Perhaps more important, at least as it occurred to
the learned judges below, was the evidence of
fingerprints on these two objects which, between
11.30 am and 5.30 pm, the time during which the
girl was murdered, were moved, concealed property
of hers and those two things contained, or held, a

fingerprint or prints of the applicant. The

evidence was strong. There was also, however, led

in evidence, a confession.

McHUGH J: Just before you get to the confession there is

one matter you have not referred to, namely the

print on the body corresponding with the print on

the sole of the jogging shoe - the shoe print.

MR HERBERT:  The only reason I did not refer to it was

because I tried to encompass it in the general

submission that we accept that the evidence was

sufficient to place him in the place where the girl

was killed.

TOOHEY J:  But it is more than that. It takes it beyond

just being in the place. It takes him as being in

direct contact with the body of the victim.

MR HERBERT:  It creates that association between him and the

body. We accept that.

MCHUGH J:  And then add to that, that he has got an

opportunity, he has got unexplained movements for

what, over 3 hours and evidence that he had changed

Davis 4 11/2/94

his clothes	that evening he had been seen in
a -

MR HERBERT:  In a different shirt. He had changed, yes.

No, there is no dispute here that the evidence against him was strong indeed.

McHUGH J: Well, strong might not be strong enough.

Overwhelming might be a more apt description.

MR HERBERT: Accepting for the purpose of argument that

description of the case, it was none the less a

case where the applicant gave sworn evidence and

denied the offence. To conclude that a jury must

inevitably convict, which is applying the second

part, we would submit, of the test, and it is more

in the classical language used in Mraz to hold that
is to hold that the jury was obliged to reject a

witness's sworn evidence; obliged to reject his

evidence. Now, that is very much a question for

the jury. They may be impressed or may have been

impressed by his demeanor or by the appearance, the

way he gave his evidence.

McHUGH J: But the hypothesis is that they would have been,

but for the confession. It is very difficult to
believe that in this particular case that the

evidence of a confession would have tipped the

scales, confession to a police officer.

MR HERBERT:  We would submit, with respect, that that poses

the wrong question, whether or not it would have
tipped the scales. What we can submit is the
presence of the confession could well have had the

effect, firstly, of very seriously damaging the

credibility of the applicant, when he gave
evidence. Secondly, it is conceivable that the

forensic evidence, the circumstantial evidence, may not have been impressive to the jury. They may, it

is possible - - -

McHUGH J: It was certainly impressive to me and, obviously,

it was very impressive for the judges of the Court
of Criminal Appeal. Surely the case involves no

more than an application of a recognized principle

to, on your own admission, a strong factual case

against your client?

MR HERBERT:  My admission was an overwhelming case really.

Well, our answer is to say this, that the Court of
Appeal below did not apply the correct tests;
indeed, the reasoning does not even indicate they
are aware of it. The test in Wilde is not the test

that they applied. No consideration was ever given

by this Court to whether the irregularity was a

fundamental one, not the slightest consideration.

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MASON CJ: There is actually no reference to the proviso in

the judgments of the Court of Criminal Appeal, is

there?

MR HERBERT:  By implication there is.

MASON CJ: Well, yes, but no express reference to it?

MR HERBERT:	No.
MASON CJ:	And, the judgments rather proceed on the footing

that, well, notwithstanding the reception of

inadmissible evidence, the reception of that

evidence has not worked a miscarriage of justice.

McHUGH J:  Mr Justice Pincus referred to the proviso, did he

not?

MR HERBERT:	I do not know that he - at page 53.
MASON CJ:	He did, right in the last paragraph.

MR HERBERT:  I am indebted, Your Honour. He finally used

that expression, "the case is one to which the

proviso could be applied". I was not submitting

that they were not aware of the proviso.

MASON CJ: It is an odd reference even then, is it not,

because he says:

the case is one to which the proviso to s 668E

of the Code could properly be applied -

MR HERBERT:  He says "could" having concluded that there was

at least some chance of acquittal.

Your Honours, our submission takes on board

the fact that this was a very strong case but we

submit that it cannot be concluded by a Court of

Appeal, absent evidence of an utterly fantastic

kind, that a jury is obliged to reject the evidence
of the applicant.	It may be that one can accept

his evidence, it may mean that there are problems,

therefore, with the forensic evidence, that it

becomes somewhat mysterious. But, a jury is

entitled to accept the evidence of a witness whose

evidence is not utterly fantastic. He was not

saying that he was on Mars or something like that.

He was saying he did not do it. To hold that

because there is some evidence that appeals very

strongly to the Court of Appeal is to, genuinely in

this case, absolutely take from the jury what is
their right and function, and that is to assess the

credibility of witnesses and accept or reject them.

TOOHEY J: But your argument, Mr Herbert, seems to be going

a long way. It seems to go so far as to say that

Davis 6 11/2/94

the proviso cannot operate where there is some

evidence supportive of the accused's case.

MR HERBERT:  We do not go that far. We would submit that

where the accused gives sworn evidence denying the

offence, which evidence is not obviously absurd,

then it will be a rare case, and not this one,

where one can apply the proviso. That is as far as
we go, but we also say that, here, the court below

did not apply the proviso. The court applied a

test of its own making and not the test as referred

to in Mraz and as elucidated by the majority in

~l~.

We submit that, because there was sworn

testimony from the accused, this is no academic

exercise. Whilst it is correct that the assessment
of whether the proviso should apply is properly a

function for the Court Appeal - we accept that - we

submit that they did not perform that test, that

exercise, and on the facts of this case, that
exercise could not properly be performed against

the applicant. Those are our submissions.

MASON CJ:  Thank you, Mr Herbert. The Court need not

trouble you, Mr Byrne.

The Court is not persuaded that there was any

error in the actual decision of the Court of

Criminal Appeal. The application for special leave

to appeal is therefore refused.

AT 11.15 AM THE MATTER WAS ADJOURNED SINE DIE

Davis 11/2/94