Dodd v The Queen

[2003] HCATrans 361

[2003] HCATrans 361

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2003

B e t w e e n -

DAVID JAMES DODD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 11.02 AM

Copyright in the High Court of Australia

MR I.H. McCLINTOCK, SC:   If your Honours please, I appear with MR H.K. DHANJI for the applicant in that matter.  (instructed by Legal Aid Commission of NSW)

MR G.E. SMITH:   May it please the Court, I appear for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

MR McCLINTOCK:   Your Honours, there are essentially four bases on which we say that special leave should be granted.  The first basis is what I would shortly term the issue of a warning not having been given in relation to the witness, Kerrie Newman, who was implicated in the offence of robbery and whom the judge chose to warn the jury about what was essentially uncontested evidence, but failed to warn the jury in respect of what was the inculpatory evidence.

GLEESON CJ:   Where do we find what he said about it?

MR McCLINTOCK:   Where do we find it in the trial transcript, your Honour?

GLEESON CJ:   Yes.

MR McCLINTOCK:   In the trial transcript the reference to Newman commences at application book page 14 where there is a reference to Ms Newman finding the address and his Honour suggests that:

it was not suggested to any one of the witnesses that that never happened, so you can accept that –

In fact, it was put to the witnesses that that was a total fabrication, that is, that she had ever been to the premises with the applicant.

GLEESON CJ:   Sorry, I just have not picked this up.  Did you say page 14?

MR McCLINTOCK:   Page 14 at line 15, your Honour.

GLEESON CJ:   There was no doubt that she took the police to the address?

MR McCLINTOCK:   No, that is correct.  There is reference then to Ms Newman ‑ ‑ ‑

CALLINAN J:   Just before you leave that, what do you say about the reference at line 5 on page 14?

MR McCLINTOCK:   Yes, it is indicated by the trial judge at that point that he effectively directs the jury that:

she was not involved in the robbery.  That does not mean that she might not have known something about it –

Your Honour, in respect of that, it is fairly clear, on our submission, that she was involved in some manner in the robbery, either as an accessory before the fact or an accessory after.  It was her car that was used in the robbery.  She attended the premises, I think roughly half an hour after the commission of the robbery and was seen by the policy driving down that road.  She lied about the involvement of Mr Whitton in the robbery and it was an essential part of the defence case that her involvement tainted her evidence to the extent that she could not be relied upon in respect of the inculpatory material.

The trial judge gave in effect a warning which was in fact as strong as a warning can be because he essentially told the jury that they would ignore her evidence in relation to exculpating Mr Whitton, but did not direct the jury ‑ ‑ ‑

GLEESON CJ:   Where is the warning?

MR McCLINTOCK:   The warning is at page 31 of the application book, your Honour, at line 36.  He there directs the jury that there is much of her evidence that the jury would not accept, and there is a further warning on the previous page at line 35 and following.  That is in respect, your Honour, of the daughter of Ms Newman.  It starts at line 44 and then continues over the page.

GLEESON CJ:   Where do you say is this strong warning about the exculpatory material?

MR McCLINTOCK:   The warning that he gives in respect of the witness suggests that there is much, and this is from line 55 at the bottom of page 30, that:

a lot of what she has said, you might think, members of the jury, does not stand against other evidence.  And you might think that there are many things that she has said that you could not accept, particularly in relation to the fact that Brian or David, as she referred to Mr Whitton, was not involved in the incident.

He then goes on to say that:

the Crown relies primarily upon the fact that she took police to the address of the accused –

and then further down the page at line 36 he indicates:

Now, members of the jury, there might be much of her evidence that you could not accept and you might think members of the jury, that she was, in a sense, going out of her way to protect Mr Whitton.

He then indicates that the Crown relies on the confrontation with the applicant on the following day.

So that he has warned them in relation to the matters on which she was unreliable and which it was common ground, but has not warned them, in our submission, in relation to those matters which inculpated the accused.

GLEESON CJ:   I do not follow that.  I think that sentence on page 31 beginning at line 25 has a double‑barrelled significance, has it not?

The Crown Prosecutor relies upon . . . her having taken the police to the address at which she said she picked up the accused, who drove her car away.

There are two elements in that.

MR McCLINTOCK:   That was never in reality in contention in the defence case.  The contention in the defence case was that she had not picked up the accused from that address.

GLEESON CJ:   That is the point I am making. There are two propositions there.  There was no dispute that she took the police to the address.

MR McCLINTOCK:   No.

GLEESON CJ:   The dispute was whether that was the address “at which she had picked up the accused, who drove her car away”.

MR McCLINTOCK:   The dispute was whether she picked up the accused at all.

GLEESON CJ:   Right, so that sentence seems to me to embrace both propositions of fact.

MR McCLINTOCK:   In that:

The Crown relies primarily upon the fact that she took police to the address of the accused at 4 Richards Place.

GLEESON CJ:   No, and the fact that she said that is where:

she picked up the accused, who drove her car away.

MR McCLINTOCK:   We would say in respect of that, that is not a warning in relation to the inculpatory material.  Throughout the trial it was common ground between the prosecution and the defence that she had lied about the involvement of Mr Whitton.  The issue really became how far and how much had there been in that lie?  The accused’s case was that she had never been and picked him up at those premises and that he had never been in the car at the time of the robbery.  There was no warning that her motivation to shift the blame, which was patent from the fact that she was lying about Mr Whitton, might go to the rest of the evidence, which is in reality the inculpatory evidence asserting that the applicant was involved.

It was quite clear that her account of the journey in the car and her encounter with the other men was, at least in part, a fiction, because it was quite clear that Mr Whitton was in the car and Mr Whitton had been in the area of the robbery.  So his Honour accepted the proposition that she was unreliable as to Mr Whitton’s participation but did not direct the jury that the motive to shift the blame might go to nominating a person who was otherwise not involved in the offence.

Your Honours, I might perhaps just go back to that.  In respect of that, the Court of Criminal Appeal found that there was no error in relation to that matter and the matter was not raised by way of any application for a redirection.  It would be our submission that that direction was fundamental in that it concerned the reliability of the most important, perhaps apart from the identification witness, evidence in the trial.

The second basis on which we say that special leave should be granted is the basis which was ground 5 in the Court of Criminal Appeal and is ground 2(c) in the grounds before your Honours, and that is that the trial judge disparaged the accused’s counsel’s address by withdrawing from them consideration of a number of matters that the accused’s counsel raised, which he was indicating to the jury were more consistent with the innocence of the accused.

His Honour the trial judge determined that that process was a process of speculation, which it was not, and then went on to essentially say that the case was not about inferences at all.  In our submission, that was an error and, indeed, the Court of Criminal Appeal appear to have found that it was a blemish but, nevertheless, the effect of the withdrawal of the material that counsel addressed upon was such as to inevitably reduce the authority or impact of what was a proper address.

His Honour took the view that asking rhetorical questions about conduct which was consistent, as put by counsel, with innocence should not have been put before the jury at all.  Indeed, it is our submission that the result of that was effectively to take away a very large part of the whole of the defence case from the jury.

CALLINAN J:   Is that right?  Did counsel not say that because a man was doing a painting you could not possibly imagine that half an hour before he had robbed somebody with a knife?

MR McCLINTOCK:   What he was effectively saying, he made a number of those points ‑ ‑ ‑

CALLINAN J:   But that was the main one, was it not?

MR McCLINTOCK:   - - - whether he would risk his safety to undertake a robbery in broad daylight and then come back to his own home.  There are a number of points of that ilk, all of which were effectively being put to the jury as his conduct appeared to be consistent with innocence rather than guilt.

CALLINAN J:   But why?  Why is doing a painting after you have robbed somebody inconsistent with robbing somebody?

MR McCLINTOCK:   If it were only a painting it would not be a great forensic point, your Honour, but nevertheless it was not ‑ ‑ ‑

CALLINAN J:   But counsel seemed to think it was a good forensic point; it was at the forefront.

MR McCLINTOCK:   Counsel’s address in that portion basically was directed towards the proposition that he placed himself in a position where he could be easily recognised, easily arrested, that there was no attempt in any way to act in a furtive way, that he had not acted with consciousness of guilt by leaving the scene or hiding, all of which was designed to negative the general proposition that by shaving in the other evidence that he had demonstrated consciousness of guilt.

The position was that it may not have been the most inspired of defence addresses, but nevertheless he was entitled to put those matters to the jury and that is what the Court of Criminal Appeal found, that there was nothing, as his Honour Mr Justice Sully who delivered the judgment indicated, to indicate that there was anything in the address which needed correction.  Once the judge entered the arena to “correct” the address, what then occurred was that he withdrew from the jury matters which were being properly put, albeit even accepting your Honour, as minor points in an address.  He told the jury that this was not a case for inferences, which was precisely what counsel for the accused was addressing the jury on – inferences arising from his conduct consistent with innocence.  Indeed, what ultimately may have occurred was that he withdrew from the jury the whole process of inductive reasoning by suggesting to them that they could not draw conclusions such as those drawn by counsel, namely, that his conduct was consistent with innocence.

CALLINAN J:   There was no redirection sought, was there, on that?

MR McCLINTOCK:   There was no redirection sought in relation to that but it is difficult to conceive of a manner in which a redirection could be sought that would have cured what had then occurred.  He had said effectively of counsel’s address that it was improper.

CALLINAN J:   He could have asked for a direction that the trial judge withdraw what he had said about speculation and that the jury was entitled to have regard to and place such weight on the submissions of counsel as they thought fit.

MR McCLINTOCK:   He could have done that, your Honour, that is true, and he did not.  Nevertheless, we would say that whatever the relative unpersuasiveness of his submissions might or might not have been, the result was that he was tainted with a proposition that he was doing something that he should not when he was not, and inference based on probabilities as opposed to deductive reasoning was criticised as a process itself and that the jury should not participate in that.  Clearly, they were entitled to undertake that process of reasoning.

Your Honours, in respect of the next ground, that ground relates to the directions that his Honour gave in relation to identification and the signs of misidentification, that is ground 2(d).  What we say in respect of that ground, your Honours, is that what his Honour did was to take matters which were relied upon by the defence as inconsistencies and identifications of discrepancies in the identification and take the jury through a process where all of those were explained to the advantage of the Crown and to the disadvantage of the accused.

Initially, as your Honours would be aware, the witness, Mr Weldon, identified the accused as being about five foot five to five foot six, having a set of black tracksuit pants, and when the pants were produced they were produced in a different colour and appeared not to fit the description in that they had a torn pocket.  His Honour went through the process of suggesting

to the jury that the fallibility of human memory could explain the discrepancy.

GLEESON CJ:   Especially when you are at the wrong end of a knife.

MR McCLINTOCK:   I am sorry, your Honour?

GLEESON CJ:   Especially when you are at the pointy end of a knife.

MR McCLINTOCK:   Indeed.  There is no doubt that the judge was entitled to indicate to the jury that there might be reasons why the identification was not a complete identification in that there may have been mistakes, but what we say in respect of these directions was that he overstepped the mark and in fact came in on the side of the Crown to explain how it was that they were consistent with the accused having been the perpetrator.  The line we say that he crossed was that he was not simply pointing out the human frailties but actually going to the point of dismissing the discrepancies as simply human failure.

Your Honour, the last ground is the ground in respect of the application of the proviso, section 6(1).  It is our submission in relation to the judgment of the Court of Criminal Appeal that the proviso was not properly applied and it would appear that the judgment cast an onus on the appellant to justify why there was not a substantial miscarriage of justice.  Those reasons are outlined within the written submissions and I do not think I need to take your Honours further to that.

The material that gave rise to those were the initial grounds 3 and 4 of the summing up and, whilst his Honour found that there was a blemish in respect of the directions in relation to admissions by conduct, he indicated that the appellant had effectively not discharged an onus on substantial miscarriage.  Thank you, your Honours.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Smith.

This case does not give rise to any issue of general principle suitable to a grant of special leave to appeal and we are of the view that there are insufficient prospects of success of an appeal to warrant special leave and the application is refused.

AT 11.23 AM THE MATTER WAS CONCLUDED