Evans v The Queen

[2007] HCATrans 149

[2007] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S371 of 2006

B e t w e e n -

GRAHAM JOHN EVANS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 APRIL 2007, AT 12.19 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant, with my learned friend, MR G.A. BASHIR.  (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC:   I appear for the respondent, if the Court pleases.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Mr Game, we would like to be sure we understand the significance of the DNA evidence.  Could you just assist us about that?

MR GAME:   The significance of the DNA evidence is that the DNA evidence, on the Crown case, connects the cap which was found, and it is said to have been left by the person who was the robber.

GLEESON CJ:   The argument against you appears to be that the defence at the trial was reduced to arguing that that cap must have been planted there by some enemy of your client?

MR GAME:   That is not correct, your Honour.

GLEESON CJ:   That is what I want to understand.

MR GAME:   No, it is not correct.  The case was conducted on the basis that, shall I say, the cap got the prosecution so far that they had to rely on or they did rely on, and they really needed to rely on, the circumstantial case that it was in fact my client that was the person who was the robber, and they relied upon a number of circumstances.

GLEESON CJ:   Did the Crown prove that it was your client’s cap?

MR GAME:   No, your Honour.  The Crown proved that my client’s DNA was on that cap.  That is what they proved, and if Dr McDonald’s evidence is accepted then the defence proved that the tissue that was said to have been left behind by the robber contained DNA which excluded Mr Evans, but nobody suggested that the DNA got the Crown to their case all by itself, but the judge did say to the jury that if they were not satisfied, as it were, that it was the accused’s cap, then they could not proceed to conviction, but nobody suggested that that alone meant that he would be convicted – his DNA.

Can I say this, if examining the record of this trial, there is absolutely no doubt that the Crown relied and the judge summed up on the basis that what was described as this comparison exercise that the prosecutor conducted in the court – of which we have no record – but was relied upon as a circumstance, and a circumstance about which the jury had no warning of any kind.

GLEESON CJ:   This is the demonstration?

MR GAME:   Yes.

GLEESON CJ:   Can I ask you a question of fact about the conduct of criminal trials?  I am not sure that I have come across this before, but does it happen that sometimes an accused person in the course of cross‑examination is being asked to walk in a menacing fashion towards the jury and say, “Your money or your life”?

MR GAME:   It has never happened that I am aware of, but this raises a real question of principle.  I should say the only case is Kirby where a hat that was identified as the hat used in the offence was put to the witness, but it is rather different than this case, and I do wish to argue some questions of principle about this case, and could I put it this way, your Honours.

When a witness gives evidence, and in particular when a witness has completed their evidence‑in‑chief, that witness may be cross‑examined – and we are talking here about the accused – and there are protections in the Evidence Act about how that witness will be cross‑examined.  For example, they cannot be asked improper questions and the court controls the process, and section 128 protects them in certain respects, but when an accused person is, as it were, made to do certain things – and here the accused was made to roll up his sleeves in order, it was said, to show that he had scars and therefore would wear a set of overalls were he robber, which is a completely illogical proposition.  He was then asked to put on a balaclava that was said to be similar, but nobody said was the balaclava.  He was told to put on overalls, all over objection.  He was told to put on a prosecutor’s skiing glasses.  He was told to walk up and down with what the prosecutor put to the jury was “a bit of a swagger”.  He was told to say, “Give us the serious cash”.  Now, none of that is giving evidence, and I might say ‑ ‑ ‑

GLEESON CJ:   Do you remember the famous defamation case in England a few years ago in which the successful plaintiff ultimately ended up in prison for perjury ‑ ‑ ‑

MR GAME:   Sorry, Oscar Wilde?

GLEESON CJ:   No, only a few years ago.

MR GAME:   Oh, sorry, Jeffrey Archer, yes.

GLEESON CJ:   Yes – in which a woman with whom he had done business said that he had a mole on his back.  Could cross‑examining counsel have said, “Take your coat and shirt off”?

MR GAME:   Your Honour, the question is could they do so, and my submission is that they could only do so if that exercise fell within section 53 of the Evidence Act, that is to say, the Court of Criminal Appeal was at pains to find reasons why section 53 did not apply to this exercise.  We say a very plain reading of section 53 is that it did, and section 53 is the gateway through which a demonstration, if a demonstration is to be conducted, shall take place.

Nobody suggests that section 53 was complied with or that the judge did any of the mandatory things in this case that were required by section 53, and if you turn over the page, your Honour, you will see section 54 makes it evidence.  So we are talking here about the creation of evidence.

Now, the Court of Criminal Appeal construed section – I will come to the sub‑placita of section 53 in a minute – but section 53 speaks about an application – and I might say section 192 may even be engaged by that, because 192 speaks about “permission”, “direction” or “Leave”, and 192 is a case in which this Court in Stanoevski held appealable error resulting in a retrial from a judge’s failure to ‑ ‑ ‑

GLEESON CJ:   Did the Court of Appeal hold that this demonstration was in order?

MR GAME:   The Court of Criminal Appeal – in effect, yes, your Honour.

GLEESON CJ:   I thought you persuaded the Court of Appeal that there were multiple errors in the conduct of this trial and you lost the case on the proviso.

MR GAME:   No, your Honour.  We did not show any error in this respect at all except for the Bollé ski glasses.

GLEESON CJ:   So the Court of Appeal did not accept that this was an error?

MR GAME:   No, your Honour.  They said that section 53 does not apply to this situation, but by no mental wrenching can one say that section 53 only happens to things that happen outside the court.

HEYDON J:   Subsection (2) would be completely otiose, though, in these circumstances?

MR GAME:   It is otiose but it does not mean ‑ ‑ ‑

HEYDON J:   The parties are there and the judge and jury are there.

MR GAME:   Yes, but subsection (3) is not otiose, nor is (4) or (5), and (4) or (5) really contemplate that there will be cases where there are what might be described as “demonstration, experiment or inspection” in court.

HEYDON J:   What did the ALRC say about section 53?

MR GAME:   It talks about things that happen outside of court, but we would submit that that does not answer the question of statutory construction in this case.  The court relied very heavily on what the ALRC said, but if you look at subsection (3), subsection (3) is a mandatory provision:

the judge may take into account –

certain things and –

is to take into account –

(a) is not relevant, but (b):

will . . . assist ‑

(c) a danger that “might be unfairly prejudicial” will “reproduce the conduct” as material, and subsections (4) and (5) specifically contemplate that, and then I should say it is of real importance in a jury trial that the procedure be followed because if it is to be followed there needs to be some record and account of what actually occurred, that is to say, one needs to be able to say what happened, how the person walked, how the person ‑ ‑ ‑

GLEESON CJ:   Just take a straightforward case – you may be right about all this, Mr Game, but take a straightforward case ‑ you know when they have those pictures of bank robbers from the banks and there is usually a gun and a hairy arm with a tattoo on it pointing towards the bank teller, suppose there is an issue of identification and an accused person arrives in court in the witness box denying that it is him, can cross‑examining counsel say, “Roll your sleeves up and let’s have a look at your arm”?

MR GAME:   Only if the prosecuting counsel gets leave because that is not questioning.  That is ordering the accused to do something.

GLEESON CJ:   I suppose that is not a very practical example, because it would be a fairly bold defence counsel who would not ask the accused whether he had a tattoo on his arm in those circumstances.

MR GAME:   No, true, your Honour, but can I say this ‑ ‑ ‑

GLEESON CJ:   I know there are some judges who would say a jury could not draw any inferences against the accused from the fact that he did not mention that matter, but it is not a unanimous view.

MR GAME:   One way of testing what happened in this case would say would the accused have been in contempt of court if he had said, “No, I am not going to trot up and down with a swagger, as you request me to do.  I am not going to go down to the cells and put on the overalls that you have presented for me to do so”.

GLEESON CJ:   Where is the record of this part of the trial, in our papers?

MR GAME:   In the supplementary appeal book – I might say you may or may not have picked this up, that the accused had already been ticked off and told that he could not tell the court any more about what he did on Thursdays, which was put out the cars for the hire service, because that was raising alibi, and from there on his attempt to say what he did on Thursdays was expunged from the case, except that the prosecutor got the opportunity to rubbish him about the fact that he was unable to produce records, even though he was going to call his brother and father about that very matter – not records, but what the practice was on Thursdays.

Now, the cross‑examination is in the supplementary appeal book.  If your Honours look at page 94 you will see he is told to roll up his sleeves.  Now, nobody could have known what the prosecutor was up to at this point until it got to her address, when she told the jury that this was evidence that he would have worn a pair of overalls if he was the robber.

GLEESON CJ:   Where is he told that he had to advance on the jury and say, “Stick ’em up”, or whatever?

MR GAME:   I will come to that in a minute, your Honour.  At page 95 he is asked to put the balaclava on, which is exhibit M, which some ‑ ‑ ‑

GLEESON CJ:   I think you made the point that most of us look fairly menacing in a balaclava.

MR GAME:   Then we get to – so he told to take it off at the bottom – defence counsel is objecting throughout.

HEYDON J:   Not at page 94?

MR GAME:   Not at page 94, no, sorry, your Honour, that is true, but he objects to everything else.  At the bottom of 97 he is told to take the balaclava off.  Sorry, the one thing the judge did not let the prosecutor do which she might have been entitled to do was to ask him to put the cap on, but anyway, at page 98 he is told to now put her skiing sunglasses on.  There is further argument at page 99.  At 100 her Honour says that the prosecutor can do it and that is at lines 10 to 20.  Then at 101 the jury are brought back.  He is told to put on the sunglasses and told to put the balaclava on.  So now he has the sunglasses and the balaclava on.

GLEESON CJ:   At the top of page 102.

MR GAME:   At the top of page 102 he is told to say, “give me the serious cash”, because one witness ‑ ‑ ‑

HEYDON J:   Is your objection that this is irrelevant or unfair?

MR GAME:   I say both, your Honour.  I say there is no probative basis for conducting it.  No probative basis has been established for this exercise.

GLEESON CJ:   But for whose benefit is he saying this?

MR GAME:   He is saying it so the prosecutor, when she addresses the jury, can say that is the best of the photos.  He looked a bit like that.  He walked with a swagger, which one witness said ‑ ‑ ‑

GLEESON CJ:   No, I am sorry, I am not making myself clear.  This is happening in the defence case?

MR GAME:   That is right.

GLEESON CJ:   The prosecution witnesses have all given their evidence?

MR GAME:   That is right.

GLEESON CJ:   So this is not for the benefit of Ms Gleeson who is going to say, “I recognise that menacing voice”?

MR GAME:   Exactly.  That is the complaint that defence counsel made.  Yes, that is exactly right.

GLEESON CJ:   Then for whose benefit is this?

MR GAME:   It is said to be used as evidence for the comparison, that is to say, when he says, give me – it is said to make it more likely that he is the robber, and that is how the case was left.  The prosecutor specifically addressed on these items.  The judge specifically left this exercise as what she described as the comparison, but without any warning of any kind, and she described it as what – she actually said, this case is an identification case, ie, focusing on this material.

GLEESON CJ:   What if he had said, “Kindly give me the serious cash, please”, or something like that, he would have been told to do it again in a more menacing fashion?

MR GAME:   I suspect so, but then he is told at page 123 to walk up and down, which becomes a bit of a swagger by the time the prosecutor gets to address the jury.  Now, if you went through the section 53 exercise, you would not have got near to any of this evidence, and yet we have all of it, we have all of the prejudice that is attached to it, and really, the court on review, has no idea what to make of what actually happened, whether he said “serious” or she said he sounded a little bit like “sherious” or whatever.  So we start at that point, then we have the point that – the court thought, as I said, that there was nothing wrong with this procedure, and we would say even if section 53 did not apply, this is hardly exercising the control of the court’s processes that sections 26 and 11 require and ‑ ‑ ‑

GLEESON CJ:   We thought we might be assisted to hear from Mr Frearson.  Yes, Mr Frearson.

MR FREARSON:   Your Honour, it is not a demonstration in terms of section 53 because we know from section 54 there would be no point in section 54 making it evidence when it already is evidence, because when you are talking about a party who is in the witness box, has given up his rights against self‑incrimination, Sorby in the High Court would suggest that a witness who has given up his rights against self‑incrimination can be invited to give a sample of his handwriting ‑ ‑ ‑

GLEESON CJ:   What do you mean by “invited”?

MR FREARSON:   I said the word “invited” because invited is what happened here in that counsel objected – there was not much objection from the applicant, but Sorby says the person can be required to produce a sample of handwriting, to speak, to walk ‑ ‑ ‑

GLEESON CJ:   Just take the top of page 102.  What is going on there?  The Crown Prosecutor says to the witness:

please say for me the words “give me the serious cash”?

MR FREARSON:   One of the witnesses described the mispronunciation of the word “serious” as “sherious” and I suppose the prosecutor was trying to find out whether the same mispronunciation would occur.  There also was a description of the voice as an Australian accent, clear, dull‑sounding voice, but I think the primary purpose would have been to discern whether there was that mispronunciation of the word “serious”, and similarly with the walk, the witness described the robber as walking with a swagger, and the applicant did walk to the witness box and thereafter the Crown Prosecutor sought to invite the applicant to walk to see if he walked with a swagger.  In relation to the balaclava and overalls ‑ ‑ ‑

GLEESON CJ:   He would have to be pretty slow on the uptake if he did walk with a swagger?

MR FREARSON:    I do not think he did, your Honour, that is the point, and defence counsel in relation to the overalls and balaclava, the theme of the evidence was that these were very loose‑fitting overalls.  The theme of the evidence was that it was a loose‑fitting balaclava.  Now, that was a matter for the jury whether the accused had access to items that if worn by the applicant would create the same type of general appearance as the robber, namely, a loose‑fitting balaclava and loose‑fitting overalls, but it had that general relevance.  When one looks at it individually on the basis of Sorby, all the things that occurred were things that can properly occur. 

Now, section 53 is simply not applicable.  That is what the CCA found.  Now, one would wonder why 53(2) is there.  There seems to be some suggestion that people have to be given the opportunity to be present.  Well, of course, if a party to the proceedings is giving evidence in the witness box, which is ordinarily evidence ‑ what he says and does there is ordinarily evidence and the jury can glean from it what they will. 

Section 53 is talking about some other thing that needs to be converted into evidence perhaps by section 54.  It never was intended to – see, it would take it to the point of absurdity if the judge said, “How big was the knife?” to a witness in the witness box, and the witness says, “It is that big”.  If my friend is right, he cannot do that, there has been no application by a party, which section 53 requires.  It is a demonstration, my friend would say, according to 53.  It would not.  It would lead to a state of absurdity.  It is not meant for – it is meant for out‑of‑court demonstrations, but even if you include it in in‑court demonstrations, it is certainly not meant for in the witness box demonstration by a party to the proceedings.  That is my answer to section 53.  I do not know if my friend wanted to address the other grounds or ‑ ‑ ‑

GLEESON CJ:   No, you go ahead, you address.  We have written submissions from your opponents, and you can say whatever you want to say about the written submissions.

MR FREARSON:   Thank you, your Honour.  In relation to ground 1, inviting comments by the witnesses about the items, of all the witnesses it was one in seven witnesses that the objection was taken, and it was taken on the basis of an inconsistency in the description.  I think she described the overalls as light blue and the balaclava as having white stitching.  Ultimately the witness said that they were not the overalls and she referred to the white stitching on the balaclava.

So it actually did not hurt at the end of the day.  As a matter of fact, on one view of it, fairness would mandate that items should be shown to all the witnesses so they can either include them in a general sense or eliminate them.  The procedure was unexceptional.  It happens every day in every court and it does not ‑ ‑ ‑

GLEESON CJ:   What happens?

MR FREARSON:   When a witness is given a description of an item what happens is that the item is placed in the hands of the witness, and the prosecutor says, “What do you say about that?”  They might say, “Well, it looks a bit like the one I saw” or “It is generally like it”, or “It’s not it” or “It could be it”.  There is nothing, in my submission, nothing exceptional about that at all.

GLEESON CJ:   As to the alibi point, I understand the argument against you to be that the witness was prevented from saying, “Every Thursday I work for my brother doing ‑ ‑ ‑

MR FREARSON:   I thought he did say that, your Honour.  I thought he did give the basis of the alibi.  He said that he could not say where he was on the particular day, but generally on Thursday afternoons he attended to the limousines ‑ ‑ ‑

GLEESON CJ:   But Mr Game suggested to us that there was some attempt to lead further evidence about that that was cut off on the basis that this was an alibi of which a notice had not been given.

MR FREARSON:   That was principally from the brother and the father and they in fact did give some evidence about it.  I am not sure it is in the application book, but they gave evidence that the applicant did maintenance work on the limousines – that is transcript page 480.  Neither could say where they were on the day in question.  They did not know where they were and it had already been established from the applicant that they looked for records and there were no records.

So, it was just a general – the thrust of it was generally he worked on limousines, but they could not say where he was this particular Thursday.  In fact, in the additional evidence from the father and the brother, it would not have taken the alibi anywhere.  There was no suggestion that anyone could say where they were apart from a general pattern of working on limousines and the Court of Criminal Appeal looked at that and said, “Well, we have decided to apply the proviso” which in my submission was appropriate.

They held that it was an error to decline leave in the way that the leave was declined but looking at the facts and what was in evidence, was there any actual unfairness or disadvantage to the applicant.  The answer was no and therefore they applied that proviso.

GLEESON CJ:   In relation to the cap, let us just for a moment address the significance of that evidence.

MR FREARSON:   It was common ground in the trial that the cap had been left by the robber.  It was a cap that according to the father of the applicant he had received similar caps from the TAB, some sort of promotional things – he could not say that was the one but it was the same type of cap and it had the DNA match with the applicant.

GLEESON CJ:   Did the applicant deny that it was his cap?

MR FREARSON:   No, your Honour.  He said that it looked vaguely familiar.  He did not deny it was his cap and, indeed, what defence counsel put in final address – I was just looking for the passage and I cannot quite find it – he put the suggestion positively that someone had planted that cap at the scene which was quite bizarre but, nevertheless, probably some acknowledgement that it was not a cap associated with the applicant.  I think on the totality of the evidence, his father having access to that type of cap ‑ ‑ ‑

GLEESON CJ:   Was it a distinctive cap?

MR FREARSON:   Not particularly.  I think it had a logo on it and it had some sort of promotional TAB type thing on it, but I do not think it was a particularly distinctive cap but then not a common cap but the feature of it was that it had the applicant’s DNA and it looked vaguely familiar to him.  Obviously, it was a compelling piece of evidence, particularly in what is, in essence, a circumstantial case.  This was never, in my submission, an identification case.  It was a circumstantial case from start to finish, the baseball cap with the DNA with Mr Evans saying he had received similar promotional caps, the robber speaking slowly with the broad accent, the height, age, complexion, the robber walking with a swagger, his build and the baggy clothing.

It is true that the baggy clothing – that has some relevance as to whether the items that the applicant had access to whether they, if he wore them, represent as baggy.  It had some relevance.  I think defence counsel submitted, “Look, when the applicant was dressed up he looked nothing like the robber”.  That was his submission.  There was no comparison between the way the overalls and balaclava fitted on to the robber and the way they fitted on to the applicant in the demonstration.  The real evidence here was the DNA on the cap.

Now, in terms of the directions, we could talk about the directions but the fact is that no further directions were asked for when her Honour summed up about how the jury should use the evidence in this comparative way.  In fact, no further directions were asked for by anybody.  Everybody seemed to say, or trial counsel said a number of times, “Nobody ever said that is him”.  Her Honour said, “Well, the usual identification directions are inappropriate”.  That must be right.  It was not an identification case. 

Everybody agreed that caution should be exercised.  There was some discussion about 165 but ultimately nobody pursued that.  Her Honour gave directions about using caution and looking at reliability at the end of which there was no application for redirection.  People were happy with the directions – I think application book 57 indicates that counsel was happy.  As a matter of fact, it was the Crown who said, “Perhaps we should be more particular and give directions about the actual items” and defence counsel said, “No, that’s already covered.  Her Honour’s directions have covered that already.”

In my submission, this case has been portrayed as an identification case.  It is not – it was a circumstantial evidence case from start to finish.  The centrepiece, being the cap with the DNA, and much of the other evidence was evidence of a general nature that the jury were entitled to take into account and draw their own conclusions about.  Thank you, your Honour.

GLEESON CJ:   Mr Game, the question that is troubling us is not whether there are arguable points about errors in the conduct of the trial, but whether, even if those errors are shown, your client has reasonable prospects of success.  What do you say about the significance of the fact that the prosecution asserts that they did not just establish that that cap was consistent with its being owned by your client, but that it was your client’s

cap?  In other words, what do you say about the prosecution’s proposition that your client unfortunately left his hat behind him?

MR GAME:   The fact that his DNA is on that cap - I might say he did not concede either that it was his cap or that it was not and nor was it conceded, contrary to what my friend has put, that that cap was left there during the course of the robbery.  That was not conceded.  In fact, you see the contrary at the bottom of page 169.  This was in dispute.  But, your Honours, you have to understand the balance of the evidence, for example, the tissue excludes him.  If the tissue was dropped there then it excludes him.

Likewise, if I take, for example, the alibi and the real situation is that the judge retrospectively refused leave to rely on his own evidence about the alibi, as I read it, but he nevertheless, whatever the situation is, he was refused leave to give evidence from his brother and father about what he did on Thursdays.  Now, if that had weight then that would undercut the inferences that are sought to be drawn from the DNA.

HEYDON J:   How did the cap get there if it was not left by the accused?  What reasonable possibility can be considered?

MR GAME:   The cap could have been left – that is obviously a strong argument, but the cap being there with his DNA in itself, in my submission, does not establish his guilt for this offence.  You have to look at the totality of the evidence.  To say that the judge gave what might be described as a Shepherd direction on the cap does not mean that once you are satisfied about that Shepherd direction you convict.  If you examine how the counsel conducted this trial and how the judge summed up, everybody was conducting this case on the basis that the additional evidence, namely the comparison, was of considerable probity in the presentation of the case, the comparison that should never have taken place.

So one does not conclude that inevitably he would have been convicted if the judge had excluded all this and he would have inevitably been convicted if he was allowed, as he should have been allowed, to give evidence of his alibi.  You bring those two – you take out the demonstration and you bring in the alibi.  Once you have that you have a very different trial.  The way both of them were dealt with was wrong.  It is not enough to simply, shall I say, just pick what is the strongest piece of Crown evidence in the case.

GLEESON CJ:   Maybe the argument against you goes a little further than that.  Maybe the argument is that all this other evidence about how big he was and whether he walked with a swagger and how he talked and whether his clothes were ill‑fitting and so forth went of itself no further than proving that it could have been him.

MR GAME:   But it was pushed further than that, your Honour.

GLEESON CJ:   But that the cap with his DNA on it proved that it was him?  That is the argument against you, as I understand it.

MR GAME:   Yes, your Honour, but if I take your hypothetical example and you have a piece of DNA evidence of, shall we say, a finger on a window that matches a person when fingerprint experts inspect after a robbery or even if there is DNA, if you have that fact and you have no other fact beyond that, no other fact in the case beyond that, then you have a real question as to whether or not you can establish guilt.  You add one fact to that – or two facts, and you have changed the probabilities considerably.

That is what is happening in this case.  You are changing the probabilities considerably by including the comparison and by excluding the alibi.  He did not have his trial, actually, according to law and the only way, as it were, the case could be dismissed, in my submission, if the proposition were that it was not open for a jury to acquit him.  I should say, also, there is a tension in decisions of this Court about how the proviso applies in this situation.

Stanoevski, Graham, Mraz were a line of cases that say in this situation you…..chance of an acquittal.  That is a test that has been perhaps doubted by Weiss but it is a real question if this case gets special leave as to what the appropriate test is on the proviso.  In my submission, the fact that the DNA is there on the cap and does not, shall I say, dispose of this case and the submissions that were put by defence counsel at trial do not bear out what the prosecutor has said to you about it as it would have been accepted as a common fact between the parties.  Those are my submissions, your Honour.

GLEESON CJ:   Thank you, Mr Game.

In this matter there will be a grant of special leave to appeal.  We will adjourn until 2.15 pm.

AT 12.55 PM THE MATTER WAS ADJOURNED