Dennis v The Queen

[2013] HCATrans 65

[2013] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S308 of 2012

B e t w e e n -

MATTHEW ALLEN JAMES DENNIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2013, AT 12.14 PM

Copyright in the High Court of Australia

MR D.G. DALTON, SC:   If the Court pleases, I appear for the applicant.  (instructed by Legal Aid Commission (NSW))

MR L.A. BABB, SC:   I appear for the respondent in that matter, your Honours.  (instructed by Director of Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Dalton.

MR DALTON:   Your Honours, this is a special leave application of fundamental importance, in our submission, to the administration of justice in relation to criminal charges, particularly those that regularly involve circumstantial evidence.  Your Honours, not a great deal has been said by the Court since Shepherd in 1990 in respect of this matter ‑ ‑ ‑

HAYNE J:   I think we looked at it, did we not, in the ACT case - the name of which escapes me - but an ACT case where we said that circumstantial evidence cases require consideration of all of the evidence.

MR DALTON:   Hillier, your Honour.

HAYNE J:   Hillier, thank you.

MR DALTON:   I appeared in the retrial of that matter.

HAYNE J:   Mr Hillier was acquitted, I think.

MR DALTON:   He was, your Honour.

HAYNE J:   Yes.

MR DALTON:   Your Honour, the point was different then.  That is what is unusual about this case and that helps me, your Honour, in this sense.  What has been the question for determination by this Court on a number of occasions is whether or not a fact constitutes an indispensable intermediate fact, as opposed to what should happen if it is in fact found than an indispensable, intermediate or essential fact exists.

That is the central point in relation to this particular application and makes this application different to those cases of which this has been touched upon – and I say touched upon with consideration – by this Court on prior occasions, for instance, in HML.  I note that your Honour Justice Hayne was in the minority in regards to the question of the admissibility of the evidence, but not in relation to the directions that should have been given.  That was a matter also picked up by Justice Crennan and Justice Kiefel as well in respect to an acknowledgement of the application of Shepherd should an indispensable intermediate fact apply. 

I think your Honour Justice Keane has touched upon this as well in the Court of Appeal in Queensland in Roughan, albeit it was not a central issue in a sense in relation to that matter.  Once again, your Honour, that related to whether or not the admissions by the appellant constituted an indispensable intermediate fact and your Honour ruled that it did not.  But your Honour, whilst not turning your mind in the course of that in specific terms to whether or not, if it had been indispensable intermediate fact, Shepherd should apply, it was at least acknowledged in the terms there of that case that that was the guiding principle.

Then of course, we also have what has been said in BBH in relation to this matter, and your Honour Justice Hayne’s firm comments in respect to directions that should be given in regards to circumstances of that nature, albeit they relate to uncharged acts and the like.  But interestingly, also in BBH, it was noted by Justices Crennan and Kiefel that indeed the proper direction was given at the first instance in regards to the intermediate, and what was deemed to be essential for the purposes of reasoning therein, facts that related to that matter.

Here we have before us in this case, your Honours, a different situation.  This is a situation where the trial judge accepted there was an essential or indispensable intermediate fact and, indeed, the way that the Court of Criminal Appeal have sought to deal with it is to say, yes, it was inherent and it was therefore obvious, such it would appear that his Honour Justice Macfarlan has in a way sought to use the addendum by Justice Dawson in Shepherd to say that it was unnecessary then for the trial judge to give that direction, that addendum by Justice Dawson being that yes, a direction should be given in those circumstances unless it is confusing or unnecessary to do so.

It could not be suggested that it would have been confusing to the jury.  Indeed, it seems that the counsel both for the Crown and for the applicant at the trial understood that this was an indispensable intermediate fact.  That is clear from the comments by his Honour to Mr Spencer, who was the counsel for the applicant at the time of the trial, during the course of his address.  Those comments were directed also to the Crown, who made a concession at that time.  Indeed, the comments of the Court of Criminal Appeal from Justice Macfarlan at 36 and 37 both accept and acknowledge in a sense that this was a critical issue in relation to the determination of the guilt of the applicant in the circumstances of this case, but in essence, a jury would have worked that out for themselves.

KEANE J:   But they would have, would they not?

MR DALTON:   Your Honour, with respect, I do not accept that because the jury - the circumstances, particularly when given the directions that they were given, could have easily have said “We find, probably, Mrs Watson is wrong and probably, therefore, the injuries may have been occasioned to the child in the course of the time that the applicant was alone with him.  We, as a result of what his Honour has had to say, can then move on to consider thereafter whether we are satisfied beyond reasonable doubt as to the elements”, which is that he did it and also that he did it with the requisite intent.

KEANE J:   Well, the nature of the injuries was such that the jury would not have needed a lot of instruction to make up its mind about the intent with which they were inflicted.

MR DALTON:   I accept that, your Honour, except for this, and that is that there were concessions by two of the doctors called that the incident in the shower may have occasioned the fracture to the child’s skull.

KEANE J:   Well, taking that up, the question then is that the case that the jury had to grapple with was that it was an injury in the shower, or injuries inflicted by your client, and now is there a suggestion that there is a possibility that it was injuries inflicted by Miss T?

MR DALTON:   Your Honour, first of all, there was evidence adduced at the trial from the mother that there had been an injury to the child in the days leading up to this particular incident that occasioned a bruise in the area of the child’s eye.  There was also evidence from T that in the course of that evening, or into the early hours of the morning, that there had been an injury occasioned to the child when the child came into contact with a scooter that may have caused an injury to the ear area.  Then of course, your Honours are well aware from the summing‑up and from the various submissions that there is the evidence of the fall in the shower.  As to whether or not there was anything further done to the child upon T arriving home at whatever time that may have been, that is an unknown.  But that was the nature of the Crown ‑ ‑ ‑

HAYNE J:   It is unknown because it was never put to it?

MR DALTON:   That is so as well, your Honour, but the basis of the Crown case though had to be that they excluded this child being conscious as of the time that T got home.  That was the effect of Mrs Watson’s evidence, that the child was conscious and it was something also that the Crown took advantage of to postulate to the jury that yes, that was J she has heard crying and that the crying in combination with his upset in relation to his girlfriend being out at that time caused him to inflict these terrible assaults upon the child.  Your Honours, the evidence of Mrs Watson was critical in the circumstances of the case and, your Honours, I do not ‑ ‑ ‑

KEANE J:   Sorry, if you can just bear with me, do you or do you not say that the evidence of Mrs Watson is critical because it may raise the possibility that Miss T inflicted the injuries?

MR DALTON:   Or someone else in that apartment after T arrived home.

KEANE J:   Well, that is a suggestion - the latter suggestion that someone else might have done it is something which does not seem to have been articulated until now.

MR DALTON:   Your Honour, it has been articulated in those terms, but the Crown case was always articulated in the terms that they had to exclude the child being conscious as of the time that T returned home, in other words, that the child was well when T went out and the child was unconscious and therefore not able to cry when T returned home that day.

KEANE J:   But if we look at the possibilities – the hypotheses available on the evidence, this child was injured either as a result of a fall in the shower or of injuries inflicted by someone else - very serious injuries inflicted by someone else.

MR DALTON:   Yes, your Honour.

KEANE J:   The only possibilities, the only hypotheses as to people who had the opportunity to do that are your client and possibly someone else, but there is no evidence of anyone else except the possibility of Miss T.  So are you saying that Miss T is the other hypothesis?

MR DALTON:   Yes, your Honour ‑ ‑ ‑

KEANE J:   If that is what you are saying, that was never put to her.

MR DALTON:   Your Honour, there was no direct evidence that the applicant actually inflicted the injuries either.

KEANE J:   No, quite, but it was either the fall in the shower, and the jury were well appraised of that possibility – well instructed in relation to that possibility, so it was either the fall in the shower or some other person.  Your client was one.  There does not seem to be any evidence of anyone else.  There is no evidence of the possibility of anyone else, unless you are pointing the finger at Miss T.

MR DALTON:   Your Honour, I accept what your Honour is saying to me is that it was not put to her.  There is nothing I can do about that, but I have to also ‑ ‑ ‑

KEANE J:   No, but it does rather look like a deliberate forensic choice, does it not?

MR DALTON:   I do not know about that, your Honour, because Miss T was certainly cross‑examined as to her credit and counsel at trial seemed to be cross‑examining her in relation to the suggestion that the child had been beaten on a number of occasions, and quite severely so, by the mother.  It is difficult to determine exactly – and the counsel was not there at the end of the summing‑up because he was ill.  I also note, your Honours, and I need to say this before I finish, is that this was only a verdict returned after the majority direction was given and it was only 11 members of the jury because one had been discharged earlier.

Going back to your Honour Justice Keane’s question, certainly, I cannot now suggest that it was put to T.  It was not.  But it is important that I also make this point, your Honour, and that is this, that unless the jury’s mind was brought to bear, as everyone else seems to accept, including the respondent now – albeit the respondent cast it as the central issue as opposed to using the term “indispensable intermediate fact” – if the jury were not told about that and therefore were not properly appraised about the manner in which they should have been dealing with Mrs Watson’s evidence because of its significance in the circumstances, they may have come to this conclusion, that is, the child may have been crying - and Mrs Watson is right, and the doctors have got it wrong, that he did not slip immediately into unconsciousness. 

But in any event, we believe because of the other circumstances that the appellant is the one who most likely is the one that was there at the time on his own when the injuries were occasioned to the child, and then moved on to making findings beyond reasonable doubt in relation to the central elements.

Now, if they were able to justify their appraisal of Mrs Watson on the basis that she may have been right and perhaps the child was crying before slipping shortly thereafter into unconsciousness, then if the doctors were wrong about that, then it may have given more substance to the suggestion that the injuries were occasioned as a result of the shower, albeit as an incident on its own, or in combination with the other incidents described by the mother and T. 

So it is not just a question, your Honour, the reason I make this point of comparing – it is either the applicant or it is T, and as I understand the criticism your Honour is making, it was not put to T, so really there should not be substance to the complaint being made now.  But my first response to that is, it was the Crown who had the onus and the Crown’s case was based not upon any evidence that demonstrated this applicant – a man of good character, who otherwise had a very good relationship with this child and was in a youth and community services working area – there is no evidence that he inflicted these injuries on this child other - other than the circumstances that were relied upon by the Crown that the child was injury free at the time T left, and was unconscious – not crying, not capable of crying on the medical evidence – at the time they returned.

Your Honours, the cases before now – and this is a vexed issue in the course of criminal trials that involve circumstantial evidence – is that the proper determination of an indispensable intermediate fact and it really can hardly be said that this is not a case where there was an indispensable intermediate fact and you will see, your Honours, I think, at application book 15 and 16, for instance, his Honour gives the example of proving of facts being a person has left the country to go overseas. 

Now, a reasonable example, why would not his Honour have gone on – and his Honour, in my submission, should have gone on and said in the circumstances of this case it is acknowledged that it would be necessary as an essential fact, or as an indispensable – he does not have to use those terms to the jury - but as an essential fact in the reasoning of logic, that these injuries were occasioned to this child at the time that that child was alone with the applicant between the relevant hours, whatever they may have been.

Your Honours, in circumstances as shortly thereafter, his Honour goes on to give a warning, a 165 warning in relation to the identification evidence given – or purported identification or comparative evidence given by Mrs Watson in relation to T.  He emphasises the reasons in particular.  He does give some reason why she may be right, but on the whole, the reasons why she may have been mistaken, albeit honestly so, and in that context it was imperative in the circumstances of this case, and cases of its kind, that his Honour go on to give the imprimatur to what Mr Spencer had to say, which is never reiterated by his Honour that “In the circumstances of this case, ladies and gentlemen, you will have to find in the manner in which the Crown has presented its case that it is essential that you find beyond reasonable doubt that those injuries were occasioned to this child while that child was alone with the applicant during that period in the early morning of the relevant date”.

Your Honours, there is really not a great deal more that I can say in relation to this, but this is a matter that we say fundamentally affected this trial, and it will fundamentally affect many other trials of a similar kind, and

it is quite different to Shepherd’s Case, because in Shepherd’s Case it was not found to be indispensable intermediate fact, same as in Roughan, if I have pronounced that name correctly ‑ ‑ ‑

KEANE J:   Roughan.

MR DALTON:   Roughan, thank you, your Honour – and then with varying views in relation to the considerations of uncharged acts in HML, BBH and the like.  Your Honours, we would respectfully request a grant of leave accordingly.

HAYNE J:   Mr Babb, I should have asked you whether you had any objection to the extension of time that is required.  I assume you do not.

MR BABB:   I have no objection, your Honour.

HAYNE J:   You have that extension, Mr Dalton, but otherwise we need not trouble you, I think, Mr Babb.

We are not persuaded that it is arguable that there has been a miscarriage of justice in this case.  Special leave to appeal is refused.

The Court will adjourn to reconstitute.

AT 12.32 PM THE MATTER WAS CONCLUDED