Drummond v The Queen

[2013] HCATrans 76

[2013] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A23 of 2012

B e t w e e n -

ADRIAN SHANE DRUMMOND

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 APRIL 2013, AT 10.51 AM

Copyright in the High Court of Australia

MR K.V.BORICK, QC:   If the Court pleases, I appear with MR P.D. KEYZER for the applicant.  (instructed by C B McDonough & Co)

MR I.D. PRESS:   I appear with MS S.S. BOREK for the respondent.  (instructed by Director of Public Prosecutions (SA))

HAYNE J:   Yes, Mr Borick.

MR BORICK:   Your Honour, unlike the – I have listened to the case of Newton where the court apparently made reference to the principle expressed or the proper test expressed in M - in this case the court made no reference to M whatsoever.  It made no reference to Bellchambers – no reference to SKA, I am sorry, and it made no reference to the question that it had to ask itself when dealing with the ground of appeal that the verdict was unsafe and unsatisfactory.

In coming to their conclusion, the Court of Criminal Appeal made no attempt to make an independent assessment of the whole of the evidence.  What they did was to say that because the defence did not put to the girl – the complainant – that she had not been attacked at all that that in effect was the key point in it and established the case for the prosecution, and added to that, that she put the registration number of the car into her telephone before anything happened and the court never made that clear.  She said she put it in the phone because she thought she was going to be murdered and under cross‑examination she said “I know that sounds stupid” but the court never considered that when it came to its conclusion that the verdict of guilty was correct and clearly correct.

HAYNE J:   Does the applicant have these difficulties, Mr Borick?  The complainant recorded his registration number.  He accepted that he – that is the applicant accepted that he was in the area at the time of the alleged offence when the police inspected his motor car, what, on the same day as the alleged offence, I think?

MR BORICK:   Yes, within a matter of hours.

HAYNE J:   Yes.  The passenger seat of the vehicle was in the unusual position which the complainant described.

MR BORICK:   Yes, that is so, but the case for the defence was that he never stopped at all.  This is a busy main road in Adelaide - a narrow main - that is not wide, six U‑turns.  The important point to make to your Honours is that not one witness, including T, said she saw any of those U‑turns.  So that when the court assumed that all these U‑turns had been made, then they never gave any consideration to the real issue was that even possible.  Dr Keyzer makes the point that the clothing that T says he was wearing he was not wearing.

HAYNE J:   There is clothing, there are teeth, there is appearance and so on, but all of these things are revealed by the evidence in cross‑examination given by the complainant, I think.  Is that right?

MR BORICK:   Yes, the clothing, the teeth.

HAYNE J:   Is that not quintessentially a jury question then?

MR BORICK:   But the issue before this Court is whether the Court of Criminal Appeal applied the right test.  That is the critical issue before the Court and I will point to seven examples where it showed they did not.  The first is in paragraph 17 of the court book 28, the court noted what they described as “significant” inconsistencies and they were referring to the description of the clothing. 

Now, the expression “significant inconsistencies” is clearly relevant to the M test.  But then the court ignored those significant inconsistencies on the basis of, to use their words, “the overwhelming probative force” of the prosecution case, when that overwhelming probative force had already been decided by the court at paragraph 10 application book 27 before it considered these significant inconsistences.  They had already decided there was “overwhelming probative force”.  Yet, significant inconsistencies are not considered or taken into account during that stage of it when they come to the conclusion of overwhelming force. 

Then you come to the failure to find any of the appellant’s DNA on the complainant’s clothing.  The Court of Appeal at paragraph 20 application book 29 said that was “insignificant”.  That was their word, “insignificant”.  Paragraph 23, application book 29, the court held that the DNA evidence had “evidential significance”. 

Your Honours, it could not have had any evidential significance for the defence.  They are saying that because there was some background information in the forensic science department that 10 per cent of cases you do not find DNA, that does not necessarily mean that there was no contact.  That did not give evidential significance to the negative DNA result because the scientific test they were looking at had no value whatsoever.  Nobody knows of all the cases they had in that list of theirs whether contact was made or not.  The witness, herself, admitted that it was just for us and had no value. 

So you have, therefore, a finding by the court that negative DNA result is insignificant and then next page it has got “evidential significance”.  Then in paragraph 25, application book 30, the court advanced what in my description was an extraordinary argument that the appellant’s wife might have given evidence that would have supported, in effect, the overwhelming probative force of the prosecution case. 

Now, in effect, the court went to an extraordinary length to support its own conclusion.  You see again there they are back to the overwhelming probative force which all arose out of the fact that the defence did not put to the complainant that it did not happen and then said, well, the wife of the appellant might have given evidence which would have supported the prosecution case and went further to say if she had have, that would have undermined the benefit to the appellant of the agreed facts, one of the agreed facts being in relation to the clothing. 

I have already made reference to the fact that the Court of Criminal Appeal assumed that there were all these U‑turns and in doing that they engaged in speculation.  I have referred also to the fact that – T’s own words - putting this registration number into her phone because she thought she was going to be murdered sounds stupid - and if the court had considered that they might have agreed with her because why is it that she thought this man was going to murder her?  If that was her real thought, why not dial emergency 000 and do something about it, but instead she puts it in there and then comes up with her description of what happened.

Next, your Honours, the court explained away the inconsistency in the complainant’s description of the teeth of the assailant as being described to the effects of anxiety in the witness box.  She made that error about his teeth – it was an error – but that was well before she got into the witness box.  She described that right at the very outset.  Anxiety in the witness box had nothing to do with that part of her evidence.

Then, you Honours, the proper use of character evidence - the applicant is a man of good character and the Court of Criminal Appeal in its judgment said that there was a – the court did not give the proper direction which the Chief Justice, Justice King, set out in Trimboli.  The direction which should have been given was that – I am speaking about Chief Justice King at the moment:

Nevertheless, I agree that it is desirable in all cases that an appropriate direction be given, especially where the judge discusses the significance to be attached to other pieces of evidence.  In many cases it is essential, and in such cases failure to give it will result in a mistrial.

That never happened here.  The direction was given to take into account when considering evidence of the accused, not in considering all of the other pieces of evidence that related to the defence case.  The Court of Criminal Appeal said:

It would no doubt have been better to direct the jury more strictly in accordance with the suggested directions of King CJ.

Well, they should have, but they excuse that again on a ground of what they describe as the circumstances of this case - in other words, back to the overwhelming probative force which had already been decided.  So, effectively what they did by not taking any notice of M, was to put on the appellant, as he then was, the onus of showing not that it was unsafe or dangerous for the conviction to stand, but that the Court of Criminal Appeal was wrong in coming to the conclusion.  So that placed an impossible onus on the appellant, as he then was and, with respect, it is a reversion back to Ross. 

In my submission, for those reasons what happened in this case exposes the fundamental problem referred to by the majority of this Court in SKA.  SKA was a very different case.  There there were Justice Crennan’s dissenting judgment - 80 paragraphs going through all of the evidence.  That was not necessary here.  Our Court of Appeal took about 10 paragraphs – six of which were under about three or four sentences – to dispose of the defence case.

No attention or mention was made of the fact that he was of good character.  He said he did not attack T.  He said he drove only in a northerly direction on the other side of the road.  He was not wearing the clothes described by T.  He had only two teeth.  There was no DNA match.  The point I am making to the Court is that that combination was never ever considered by the court.  They considered, as the Court has put to me, some aspects of the prosecution case, but never did they look at the whole case and for that reason this Court should grant special leave because a miscarriage of justice has occurred. 

HAYNE J:   Yes, thank you, Mr Borick.  We will not trouble you, Mr Press.

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

The Court will adjourn to permit the video link to Perth to be established.

AT 11.05 AM THE MATTER WAS CONCLUDED