Finn v The Queen

[1995] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B36 of 1994

B e t w e e n -

MICHELLE ALICE MARY FINN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN J
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 1995, AT 12.44 PM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear with MR M.J. GRIFFIN, for the applicant.  (instructed by Legal Aid Office (Queensland))

MR M.J. BYRNE, QC:   If the Court pleases, I appear with MR M.C. CHOWDHURY for the respondent.  (instructed  by D. Field, Solicitor to the Director of Public Prosecutions (Queensland))

BRENNAN J:   Yes, Mr Fleming.

MR FLEMING:   Your Honours, in this case the applicant was convicted of murder, but on appeal the Court of Appeal reached three different conclusions, although with one modification.  The majority of the Court of Appeal finally determined that there were insufficient facts upon which a jury could be satisfied that there was an intention to kill.  That majority was Mr Justice Davies and Mr Justice Pincus.  However, Mr Justice McPherson rejected the evidence as being unsatisfactory to establish either an intention to kill or an unintentional killing.  In the result, despite the fact that Mr Justice Pincus determined that there was sufficient evidence to sustain the conviction for murder, he acknowledged what Mr Justice Davies had said and he finally said he would not dissent from that.

Now, if the Court pleases, if one removes alleged lies from the evidence in this case, the only evidence that is left is equivocal.  It shows that the applicant was in the same place at the same time as the deceased with an admitted association with the knife, which of course was the weapon which caused the death.  In addition to that, the deceased had a wound which was consistent, upon the evidence of a pathologist, with deliberate killing, accident or suicide.  It was then the alleged lies which gave some strength to the case.

BRENNAN J:   Plus the position of the body and where the blood had been and so forth.

MR FLEMING:   Yes, your Honour.  We accept that all of that evidence was there.

DEANE J:   And the shoe near the right hand.  I would have thought most important of all against you was what she said in the heat of the moment at page 125 of the book, that is, that there had been a stabbing, a punch‑up and she had grabbed the knife.

MR FLEMING:   Yes, your Honour, there is no doubt that all of that evidence is there, but we would submit that it remains equivocal, given the circumstances of what occurred, and given the fact that it was an immediate statement.  Your Honours will note that there was a very extensive record taken of the conversation.  It does not appear from the transcript, but that record was taken by a concealed tape recorder, and when the applicant was subsequently asked if she wished to make a statement, she declined.  However, one can see from that very lengthy statement that there was a lot of confusion; there was a lot of emotion ‑ ‑ ‑

DEANE J:   No, but that is not the lengthy statement.  That is what she says at the time when she speaks to the ambulance officer.

MR FLEMING:   Yes, we must accept that that was said, your Honour, but ‑ ‑ ‑

DEANE J:   When you look at that - I am not suggesting that it turns into a very strong case; that is not our immediate question if we reach it - but when you get a statement that in the context of a punch‑up, I grabbed the knife and there was a stabbing, it is open to one construction.

MR FLEMING:   One construction, your Honour, but there are other constructions equally open.

DEANE J:   I doubt whether it is open to the construction that, “somebody has fallen on a knife and I had nothing to do with it”.

MR FLEMING:   Your Honour, it may well be open to the construction that he did it himself, and certainly that was open on the evidence from Dr. Ansford.

DEANE J:   It may be just open.

MR FLEMING:   Mr Justice Pincus, in his analysis of the facts, referred to lies, at pages 91 and 92 of the record.  He also analysed some of the facts that your Honours have just referred to, principally the shoes, at 93.  His Honour came back to lies at page 94.  Then at page 95 referred to what we would submit was a Weissensteiner point.  If I may take your Honours to that at the bottom of page 94 from about line 32 and following, and especially at lines 55 and over the page, page 95 and line 5.  Weissensteiner had recently been handed down by your Honours, and his Honour does not identify it, but he did take some comfort that her having failed to give any reasonable account of the mode of its occurrence, was more consistent with guilt than innocence.
           Then follows the paragraph where his Honour says that he thinks probably murder can be sustained, but he was not prepared to dissent from what Mr Justice Davies had concluded.  Mr Justice Davies at page 124 looked at the fact that he was in the house and the consequential facts leading to inferences that she was present and so on at the same time.  He gave a summary at page 132, line 45, of what he saw were the facts upon which a jury could act, and his Honour there summarises six issues over to page 133.

BRENNAN J:   Yes.

MR FLEMING:   His Honour then at the top of page 134 referred to:

the position and angle of the wound, the inference was open that the appellant intended either to kill the deceased or to cause him grievous bodily harm -

Then his Honour says:

However, in the absence of evidence of any motive, or evidence that the appellant must have caught the deceased unaware, I do not think that a jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant stabbed the deceased without an intent to kill him or to do him grievous bodily harm.

That was the basis upon which his Honour acted.  The Court of Appeal then found by a majority of Mr Justice Pincus and Mr Justice Davies that there was not sufficient evidence to exclude intention.  However, those same facts were sufficient to establish apparently a killing without an intention.

BRENNAN J:   With a specific intention.

MR FLEMING:   Without a specific intention; yes.  Your Honours, if one firstly goes to Weissensteiner, this Court held, if I may briefly summarise one passage, that a failure ‑ this is at the bottom of page 228 ‑ that the failure to give evidence was capable of strengthening the prosecution case by enabling the jury, in the absence of any explanation by him, to accept the inferences for which the prosecution contended as the only rational inferences from the evidence.  With respect, we accept that, but that did not arise in this case, and it certainly was influential in at least the thinking of Mr Justice Pincus.  Mr Justice McPherson rejected this as a Weissensteiner Case, on the grounds that it did not call for an explanation.

Your Honours, at best the evidence in the Crown case puts the applicant in the same place at the same time with an admitted connection with the knife.  As we submitted before, Dr Ansford’s evidence is that the knife wound is consistent with deliberate stabbing, suicide or accident.  The inferences, we would submit, for which the prosecution contend as the only rational inferences from the evidence, must be that the applicant deliberately stabbed the deceased.  The weakness of that is exposed immediately in Dr Ansford’s evidence.  The case, therefore, is one in which the deficiencies in the prosecution case would enable the applicant to remain silent, and that is a proposition that your Honours dealt with at page 228 of Weissensteiner.

BRENNAN J:   What is the evidence of Dr Ansford?

MR FLEMING:   The evidence of Dr Ansford ‑ your Honours can see it summarised at page 96, at the bottom of the page.  This is in the judgment of Mr Justice McPherson:

Its dimensions and appearance were such that, according to Dr Ansford ‑

and then over the page at 97.

BRENNAN J:   Well, that observation upon which you place such reliance that it might have been deliberate stabbing, it might have been accidental, it might have been self‑inflicted, that is the doctor’s view with respect to the causation of the wound that is there described.

MR FLEMING:   Yes, your Honour, but it leaves open  ‑ ‑ ‑

BRENNAN J:   I suppose you could a fourth one, that is, it came through the roof.

MR FLEMING:   He did not, your Honour.

BRENNAN J:   No.

DEANE J:   That would have been accidental.

BRENNAN J:   That is right.

MR FLEMING:   And perhaps the direction might not have been the same.

BRENNAN J:   Well, you do not know.

MR FLEMING:   Your Honours, in addition to that the applicant in fact gave an explanation; an explanation, firstly, as recorded by the ambulance officer, Eustace, and secondly, as recorded in the transcript of the tape recording that was taken of her.  That was a very extensive tape recording.  Now, it is true that there are some inconsistencies in what she said, but we would submit that that tends to strengthen the case that we make because it shows the state of mind.  We would submit that that goes back to the time when it first occurred as well and, hence, I return to that point in answer to an early question from your Honour Justice Deane.

There is a confusion in her mind but nevertheless she had given an explanation.  Your Honours, we would submit it would be idle to think that a woman in that position would be able to clear her mind and to be able to give a further rational explanation when the whole circumstance was confused in her thinking in any event.  Your Honours, we would submit that there is no substance then in the Crown’s contention that either she failed to give an explanation or that that failure had any bearing upon the probative value of the evidence that had been given.  It is a proposition again dealt with, your Honours, at page 229 in Weissensteiner.

Your Honours, that leads us then directly to the issue of lies.  The principal alleged lies were told to a Mrs Smith some time after the incident had occurred.  Mrs Smith had an association with the deceased and had asked the applicant for explanations as to how the event occurred.  Mr Justice McPherson dealt with this on the basis that it was an “inquiring busybody” who was really after an explanation, and one explanation for telling her that she was not there, that she was out hanging out the washing.  Alternatively she told Mrs Smith that it was suicide.  One explanation is that she simply wanted to get Mrs Smith off her back, and that is a logical explanation, given the circumstances.

So, your Honours, we would submit that the lies were told out of a desire not to discuss the issue with Mrs Smith or that Mrs Smith was intimidating her or that Mrs Smith’s association with the deceased was something that the applicant did not want to become involved in.  In any event, we would submit that she still would have been compelled to give some answer to stop this line of inquiry.

Your Honours, we have to concede that the summing up to the jury was not challenged and nor could it be challenged.  Oddly, if anything, it was too precise, it was a very accurate summing up, and in the space of a short paragraph his Honour dealt with the issue of lies in a very precise and concise way, one that we cannot fault, except that a lay jury might have well have been struggling with it.

Your Honours, it was not specifically formulated in terms of Lucas, but we do not challenge it for that purpose either.  However, we would

submit that the case does raise the issue of the doctrine of consciousness of guilt by lies, especially in the context where there is an alleged failure to give an explanation of the events.  Your Honours, finally, we say that the matter is one which requires review because of the justice of this particular case.  There was no real majority in the Court of Appeal.  Mr Justice Pincus finally conceded that he would not dissent from Mr Justice Davies and, further, if we cannot ‑ ‑ ‑

BRENNAN J:   But there was unanimity between those two as to the sufficiency of a case on manslaughter.

MR FLEMING:   Ultimately, your Honour, we have to concede that that was the case, that is what it came down to.  Your Honours, ultimately, if we cannot dress the point up in any other way as a special leave point, we have to say that it was a case which requires the review of this Court because of the unusual juxtaposition of Weissensteiner and Edwards and also the unusual result in the Court of Appeal.  They are our submissions, if the Court pleases.

BRENNAN J:   Thank you, Mr Fleming.  Yes, Mr Byrne.

MR BYRNE:   If your Honours please, the two issues which appear to be raised by the application are whether, firstly, as I will place chronologically before your Honours, whether the case was sufficient for manslaughter and, secondly, the issue as to whether this is a suitable vehicle to revisit the issue of consciousness of guilt arising from the telling of lies.

In respect to the first of those propositions, we have attempted to summarise the impact of the Crown case on page 8 of our written outline in paragraph 5 which appears there.  The purpose of doing that was to attempt to demonstrate to your Honours that there was a sufficient case at least of manslaughter even without the use of the lies.  That arises from the circumstances, the two persons being alone in the house, the stabbing, the position of the stabbing ‑ the stab wound has already been dealt with.  It was canvassed in the Court of Appeal that suicide was able to be rejected by a jury as a reasonable possibility for a number of circumstances which are set out in the judgment, which I will not ‑ ‑ ‑

GAUDRON J:   That depends entirely on the shoe, does it?

MR BYRNE:   It depends on the shoe.  It depends ‑ ‑ ‑

GAUDRON J:   Do we know whether the deceased was left‑handed or right‑handed?

MR BYRNE:   What we do know, your Honour, is that he was not wearing his right shoe.  There was blood on the right sock and there was a trail of blood apparently leading from outside a bedroom down a corridor to where he was found in the kitchen.  So the inference which was able to be drawn by the Court of Appeal, particularly by Mr Justice Davies, was that in those circumstances the shoe had not been on because of the blood on the sock and he had ‑ ‑ ‑

GAUDRON J:   But that is the only basis for excluding suicide as a reasonable hypothesis, is it?

MR BYRNE:   It is not the only reason, your Honour, no.  The evidence revealed, for example, that things were going on normally in the household this particular morning.  He had made himself lunch, he had had a cup of coffee and he was dressed to go to work.  In those circumstances, in combination with the shoe and the trail of blood, it was said  ‑ ‑ ‑

GAUDRON J:   But the evidence also was that he did not want to go to work, he did not like going to work.

MR BYRNE:   That was part of the story given in the interview by the applicant, your Honour, yes.  There is added to that the taped interview with the ambulance in which the slight stabbing, the punch, a bit of a punch up and grabbing of the knife is mentioned.  There was evidence later which was capable of showing to a jury that she was angry or cranky in the morning and, against all of that background, the point of failing to give evidence is not particularly a Weissensteiner point in a sense that the trial judge gave no direction on that aspect, but Weissensteiner is mentioned in our outline simply because those circumstances were such that a jury would have to ask themselves why.  No explanation has been given to them.

GAUDRON J:   She did give an explanation.

MR BYRNE:   I am sorry, your Honour.

GAUDRON J:   She gave an explanation in her record of interview.

MR BYRNE:   The explanation was she did not know how the knife came to be in him although she says she grabbed the knife at various times or had contact with the knife.  That was able to be regarded, we submit, as an unsatisfactory explanation in the particular circumstances here.  Added to that summary, we come to the position of lies and the lies really are in two parts.  They are the lies said to be told to Mrs Smith after the event and there is also the lie which is capable of being identified, we submit, in the interviews, particularly saying there was no punch up, contrary to what was said to the ambulance officer.

GAUDRON J:   If we exclude the Weissensteiner point and the lies point for the moment, what is there to exclude accident as a reasonable hypothesis?

MR BYRNE:   If one excludes the absence of explanation and the absence of all lies, one is left with the statement by her that there was a punch, a bit of a punch up, and she grabbed the knife  ‑ ‑ ‑

GAUDRON J:   That does not exclude accident?

MR BYRNE:   It is capable, we submit, for a jury to be satisfied that it excludes accident, your Honour, yes, added to the fact that she was cranky that morning, or so the jury could have concluded.  It is also there that though there was, as has been said by our learned friends, an extensive interview with her there is nothing positive going to accident in that interview. 

GAUDRON J:   That rather reverses the onus of proof, does it not, when you put that submission?

MR BYRNE:   Well, your Honour, that submission is made because it is impossible, in our submission, to put aside the fact that she has not given an explanation to the jury. 

GAUDRON J:   Well, that assumes that some explanation other than her complete confusion as to what had gone on was called for. 

MR BYRNE:   Yes, it does.

GAUDRON J:   I mean, if her confusion was a reasonable reaction in the circumstances, nothing can be taken from the failure to give any explanation, can it?

MR BYRNE:   The failure to give explanation at trial?

GAUDRON J:   Anywhere.

MR BYRNE:   In our submission, yes.  She could have given evidence to say she was confused at the time at trial.  That would have given the jury something to focus upon, rather than having before them a number of what we say are conflicting accounts.

GAUDRON J:   Does Weissensteiner say you have got to give an explanation at trial?

MR BYRNE:   No, it does not specifically.

GAUDRON J:   No.  Are you not running two thoughts together?  I mean, are you not taking Weissensteiner in your submission much further than it goes? 

MR BYRNE:   We are not seeking to push Weissensteiner further than to say that the case cannot be divorced from the situation that the jury were left without her having given an explanation at trial.  But we do not say that that is a strong point; we say it is a factor.

GAUDRON J:   I am not too sure that it should be a point at all, should it?

MR BYRNE:   We submit it should, but we cannot take that any further.

DEANE J:   But there was not a failure to give an explanation.  She had said there had been a bit of a punch‑up; she had grabbed the knife and there had been a stabbing, and then she had gone and washed the knife, in part.  It is not a case of silence and confusion.  She has already said what happened.  It is a case where, in the absence of explanation of what she said, you draw the obvious inference from what she said.

MR BYRNE:   With respect, yes, that is our point.  The jury were capable of drawing the inference of guilt of at least manslaughter and to balance that there was nothing by way of explanation at trial, and that is as far as we can take that point. 

The other point which was raised in submissions deals with the particular lies in this case.  Our submission generally on that point is that that is a question peculiarly within the realm of the Court of Appeal to determine the effect of those lies, and that is what the Court of Appeal did here.  They split, it must be said, on that issue, but that issue was one which is particular to this case and particular to the lies said to have been told in this case.  Our response to that point is that those lies in this case do not raise a point of general importance.

Those are our submissions, if the Court pleases.

BRENNAN J:   Thank you, Mr Byrne.  Mr Fleming.

MR FLEMING:   I do not wish to reply on any points, if the Court pleases.

BRENNAN J:   What I am about to say is said as the opinion of the majority of the Court. 

There is no occasion to grant special leave to appeal to canvass again the question of the evidentiary effect of lies told by an accused person.  That question was considered in Edwards v The Queen (1993) 178 CLR 193. The decision of the majority of the Court of Appeal that a jury properly instructed was entitled to convict of manslaughter depends upon the inferences which might properly have been drawn from the facts proved. Having regard to all the circumstances of this case, we do not think that it would be appropriate to grant special leave to appeal so that this Court should re-examine that question. That is the view of the majority of the Court and by majority special leave is refused.

MR FLEMING:   If the Court pleases.

BRENNAN J:   Court will now adjourn until 10.15 am on Tuesday next.

AT 1.14 PM THE MATTER WAS CONCLUDED.