Dodd v The State of Western Australia

[2014] HCATrans 256

[2014] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P24 of 2014

B e t w e e n -

MATTHEW SHANE DODD

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 14 NOVEMBER 2014, AT 12.20 PM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   Your Honours, I appear for the applicant.  (instructed by Go To Court Lawyers)

MR J. McGRATH, SC:   May it please the Court, I appear with MR L.J. FOX for the respondent State.  (instructed by Director of Public Prosecutions (WA))

MR McINTYRE:   Your Honours, as you may appreciate from the way in which the written submissions are constructed in this matter, the applicant essentially is suggesting that the analysis of Justice Mazza, who was the dissenting judge in the Court of Appeal, is the one to be preferred over that of the majority.  We say that what emerges, both in the form of words and of course in the substance, is a different approach to the question of when an Edwards‑type direction should be given. 

GAGELER J:   Now, as I understand your case, an Edwards direction was required in the particular circumstances by reason of some statements made by the prosecutor in the course of closing submissions.  Is that what it comes down to?

MR McINTYRE:   That is an essential element of it and there are issues about what the proper test is in relation to when the prosecutor’s comments and the way in which the prosecution case enlivens the entitlement or the obligation to give an Edwards direction so, for example, Justice Buss talks about that issue at page 85 of the application book.  He says that:

the evidence of the appellant’s post‑offence conduct relied on by the State was not the only evidence against the appellant and it was not an indispensable link –

So it is not only what the prosecutor may have said or not said.  There is an overall requirement by the court to consider what the significance of the post‑offence conduct is in the prosecution case.  Justice Buss characterises it as necessitating it being an indispensable link.  At paragraph 126, he speaks of this further.  He said:

although the evidence of the appellant’s post‑offence conduct relied on by the State was an important p art of the State’s case, the State’s case was not wholly or very substantially dependent on the evidence.

So his Honour Justice Buss is setting up tests there as to when that post‑offence conduct becomes a matter which ought to be the subject of an Edwards‑type direction.  If you contrast that with the way in which Justice Mazza deals with that, if you go to page 107 of the application book at paragraph 219 Justice Mazza says:

In the circumstances of the present case, this is sufficient reason for an Edwards‑type direction to be given.  However, there are further reasons why an Edwards‑type direction should have been given.  The appellant’s post‑offence conduct was, in my view, a prominent feature of the trial.  A significant part of the State’s case was devoted to establishing what the accused did or did not do from the time of his arrival in Geraldton.

So you will see there is a subtle shift of language from “indispensible” in the view of Justice Buss or “not wholly or substantially dependent” and Justice Mazza says, well, if it is a prominent feature then an Edwards‑type direction is called for.

GAGELER J:   Now, his Honour spoke in a shorthand way when speaking of an Edwards‑type direction.  His Honour had earlier set out at pages 101 through to 103 what the directions relevantly were.  What, in substance, would an Edwards‑type direction have added?

MR McINTYRE:   His Honour really does not go beyond what the proper direction is for an inference to be drawn from circumstantial evidence.  What his Honour needed to say was that if the post‑offence conduct was a matter to be taken into account by the jury in determining guilt then they would need to be satisfied that the evidence was only capable of establishing guilt and was not able to be explained as arising from another motivation.

KEANE J:   Well, if you look at page 133 of the record, in paragraph 3.5 of Mr McGrath’s outline, you will see that the five pieces of post‑offence conduct are set out and if one looks at them they are not the sort of – the pieces of evidence that are referred to are not the kinds of evidence that give rise to the vice at which an Edwards direction is directed.  These are just pieces of post‑offence conduct which are not disreputable or wicked in themselves but which just point to your client having had certainly the opportunity to commit the crime and an awareness that the deceased was dead.

The appellant had her phone in his possession, had switched out the SIM card and claimed the phone was his own.  The really important thing there was that he had her phone.  The appellant had her change of clothes, which he had not attempted to return.  He initiated contact with his former girlfriend.  He did not make any inquiries of mutual acquaintances and did not report that she was missing. 

Now, none of these are particularly discreditable in themselves, but they all do point to an awareness on his part perhaps – perhaps, the jury have to make of this what they do – that the deceased is dead and that he is aware of it and that he had an opportunity to be involved.

MR McINTYRE:   Yes, your Honour.  That raises another issue which is underlying this application as well.  My learned friend makes the point which your Honour is making that there may be an issue and some of the cases suggest that you look for this discreditable, disreputable conduct in order to found an Edwards‑type direction.  We would suggest that that is not quite the right test to apply in all circumstances and this is one of those circumstances.  The real reason for an Edwards‑type direction is whether the conduct is suggestive of an admission of guilt and whether it supports the concept of guilt.

KEANE J:   But this conduct – the five facts that I have just referred you to, they are not relevant as an admission of guilt.  They are relevant as facts that point to your client having had contact with the deceased in circumstances that are suspicious, to say no more.

MR McINTYRE:   Yes.

KEANE J:   It is not attempting to use testimonial evidence from your client to establish the case against him.

MR McINTYRE:   No, and that ‑ ‑ ‑

KEANE J:   It is not evidence of lies or flight or something like that.  These are just pieces of evidence that suggest that he has had contact with the deceased which suggests that he certainly had the opportunity to have done what was alleged and that he seems to have been aware that she had been done away with.

MR McINTYRE:   Yes.  I suppose the way in which this connects in with an Edwards‑type direction is that the prosecutor certainly suggested guilty knowledge, and that is a phrase often used when justifying an Edwards direction, and you will see as we have set out in the submissions, page 133, paragraph 3.7, the prosecutor used this forensic technique in his closing address.  He said:

‘Why did he not attempt to return those clothes to her?  Because he knew she was dead and he killed her’.

He repeats the phrase in the other four instances.  So that is where we say that you are shifting into the prosecutor using this as conduct which is an admission of guilt and that is where the Edwards‑type direction emerges from.

GAGELER J:   That is really the difference between the majority and the minority in the court here as to what is to be made of those statements by the prosecutor.

MR McINTYRE:   That is right, your Honour.

KEANE J:   Those statements by the prosecutor did not prompt your client’s counsel at trial to seek an Edwards direction?

MR McINTYRE:   That is right, but there have been other cases where that has also been the case – …..and there are one or two other cases where, whilst that may be the situation, it is not determinative of the issue.  It is a matter for the court ‑ ‑ ‑

KEANE J:   No, but they do reflect a forensic decision which certainly seems to be reasonable that one would not want the jury being told again about those facts.

MR McINTYRE:   Well, the jury were told about them on several occasions.

KEANE J:   But not again by the judge.

MR McINTYRE:   Well, the judge certainly provided some – he provided a full account of the defence submissions which included the innocent explanations as to the conduct.  So, all of that was before the jury by way of direction.  We say that he just did not quite go far enough in indicating that in relation to those innocent explanations they ought to consider whether the innocent explanations were sufficient to justify them not adding the post‑offence conduct to the balance when determining guilt, and that is the direction which was missing.

Your Honours, I want to draw attention to the other principal linguistic difference between what Justice Mazza said in the minority with what the majority said when deciding whether or not the Edwards direction should be given.  What Justice Mazza ‑ ‑ ‑

FRENCH CJ:   Do these linguistic differences point to a difference in the test applied, or simply a difference in the evaluation made according to a common test?

MR McINTYRE:   We would suggest possibly both.  We think that it is the foundation of the test and then it has been applied in a substantive way differently.  So that you will see starting at page 105 of the application book towards the bottom of the page at paragraph 211, Justice Mazza refers to:

The rationale for these directions is to obviate the risk of injustice caused by the hidden danger that a jury will make too much of an accused’s lies –

In that case they were talking about lies.  He then at the bottom of that page says, referring to Zoneff v The Queen and Dhanhoa v The Queen:

embrace cases where there is a real risk that the lie would be understood by the jury as being evidence of guilt or if there is a risk of confusion as to the way in which the prosecution put its case.

I am emphasising the word “risk”.  You see further down the page he refers to what Justice White said in the Court of Appeal of Victoria in the Wildy Case, a referring to an Edwards‑type direction in relation to post‑offence conduct, and about line 40 he says:

whether the accused has given evidence in the trial, and on the possibility that, without such a direction, the jury may fail to take account of alternative explanations –

So again the word “possibility” is used.  Justice Mazza at 217 refers to Zoneff and says:

What must be considered is the way the jury might use the evidence . . . At the very least, there was a real risk that the jury would have understood the prosecutor as asking it to infer that the appellant behaved as he did out of a consciousness of guilt.

Again at 218 Justice Mazza speaks of “real risk” and at 220 he uses the phrase “real possibility” that the jury would adopt it without taking into account the appellant’s innocent explanations.  So he is talking about risks and possibilities and that is to be contrasted with the way Justice Buss spoke about the matter whilst, if you go to page 84, line 40, he speaks of “reasonable possibility”, but then at page 131 he again uses the phrase “no reasonable possibility”.  So he says:

Eighthly, the trial judge’s directions were adequate to guard against any impermissible prejudice to the appellant arising from the prosecutor’s closing address.  His Honour’s directions ensured there was no reasonable possibility that the jury would focus solely on the appellant’s post‑offence conduct and adopt a process of reasoning to the effect that the appellant had engaged in one or more aspects of the conduct because he knew the victim was dead –

et cetera.

GAGELER J:   So what is the linguistic difference you are pointing to?

MR McINTYRE:   It is initially a linguistic difference and we suggest it is that linguistic difference which explains the effect of substantive difference in the way in which the two judgments deal with the matter, and we say that effectively there is a different test – a slightly different test being applied ‑ ‑ ‑

GAGELER J:   No real risk and no reasonable possibility?  Is that the difference?

MR McINTYRE:   That is right.  That is the difference.  There is clearly a substantive difference in the way in which the two judgments deal with the matter.  All I am suggesting is that perhaps that substantive difference has come out of that linguistic difference which has the potential to be applied in a different way, factually.  It contrasts with what was said in Nguyen and which is referred to by Justice Buss at 138 where he uses the phrase “real danger” towards the end of that paragraph.  There is a reference to Nguyen, and in that case Justice Buss says that:

Nguyen is not in point –

So he is drawing a distinction between what is said in Nguyen and what Justice Buss has concluded on behalf of the majority in that case, and he says that -

The decision in Nguyen turned on the trial judge’s failure to appreciate that, despite his Honour’s general directions to the jury that they could only use any lies told by the accused to the police in assessing the credibility of his evidence, his Honour should have given an Edwards direction because there was a real danger that the jury may use any such lies, in combination with the accused’s immediate post‑offence conduct, as probative of his guilt.

We say that Nguyen was on point and should have been followed – well, at least the approach should have been followed – by the majority in this case, and they would have come to the decision which Justice Mazza did.  They have diverged off and used a slightly different test which has allowed them to avoid – to come to the conclusion that an Edwards direction was not appropriate.  May it please the Court.

GAGELER J:   Thank you, Mr McIntyre.  We do not need to hear from you, Mr McGrath.

The difference between the majority and the minority in the Court of Appeal was a difference as to the application of well‑understood principle to the particular circumstances of this trial.  There is, in our view, insufficient reason to doubt the correctness of the conclusion of the majority to consider that a further appeal to this Court would be in the interests of justice.  Special leave is refused. 

AT 12.39 PM THE MATTER WAS CONCLUDED