Glattback v The Queen

[2005] HCATrans 177

[2005] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B59 of 2004

B e t w e e n -

PHILLIP JOHN GLATTBACK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 11.24 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.J. DAVIS, for the applicant.  (instructed by Gilshenan & Luton)

MR R.G. MARTIN, SC:   May it please your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, could I change the order from that which is in our written submissions.  I want to start with the relationship topic first, before moving to the alternative theories of mechanism of death matter.

GUMMOW J:   Yes. 

MR WALKER:   Can I take your Honours, please, to the way in which the question of relationship can be seen to have been dealt with, we submit, in a way which lead to hopeless defect by the trial judge, starting at page 12.

GUMMOW J:   It seems to have been embraced by your side, to some degree.

MR WALKER:   Your Honour, can I go straight to ‑ ‑ ‑

GUMMOW J:   Page 37.

MR WALKER:   Yes, go straight to a matter that is at the heart of any appellate consideration, namely, there was not a request for redirection, but, in our submission ‑ ‑ ‑

GUMMOW J:   No, more than that.  I am looking at page 37, line 3.

MR WALKER:   Can I deal with that in sequence?

GUMMOW J:   Yes, sure. 

MR WALKER:   That paragraph starting, “The defence also says”, is one which lends itself to this analysis.  I do not want to do it all now, namely, that it is one thing for the defence to put an argument before the Crown and it is another thing simply to make the obverse of that an appropriate way for the Crown’s case to be put.  That reflects the difference, obviously, in the ‑ ‑ ‑

GUMMOW J:   Yes.  Anyhow, we are at page 12.

MR WALKER:   Page 12 is where relationship either first or most obviously enters into his Honour’s remarks, about line 10 or 12 or thereabouts:

if you have views on the subject of domestic violence you have to put them to one side.  That’s not what’s in issue in this trial.  If you have developed any sort of personal dislike of the accused – and you may have, as counsel –

that means counsel for the defence –

didn’t shrink from telling you, he’s not, on the evidence, a very nice person –

Line 28 or so:

He’s on trial for murder, not for being an unpleasant person, not for domestic violence.

Then an important sentence:

So no extraneous factors.

Pausing there, and at the risk of over‑dissecting, I had better make comments about each of these as they come along.  We accept it is the aggregate or the overall impression that matters.  That notion of “no extraneous factors” is in the context of matters he is not on trial for, matters you should not be considering, but the evidence in question in this case was plainly admissible on at least one, and possibly more, bases which went to the heart of the matter.

Far from being extraneous, they were at the heart of the matter and they were going to be told that later.  They were going to be told that in no uncertain way, in effect, by both counsel, the defence needing to respond to the way in which the Crown would properly put the case.  So starting at the very beginning of the summing‑up, material which may have been in the nature of a caution, qualification or warning was rendered entirely unuseful for that purpose, indeed, potentially misleading, by this notion of saying, well, that is going to be extraneous.

Later, of course, his Honour turns to consider this evidence which was right at the heart, far from being extraneous.  Thus, for example, at page 31, the next reference I want to take your Honours to, just after line 20:

Then the Crown also says you can rely on the fractured relationship between the accused and the deceased, particularly in the light of the deceased’s claim that he owned the house.

Then, in the next paragraph:

It accepts, indeed it asserts, contrary to what the accused says, that there was an earlier assault –

So now we have what, in lay understanding to a jury, would have been – we are talking about domestic violence:

points to the broken cartilage . . . as evidence that there must have been something happened early in the morning, evidence also supported by the noise . . . sets the scene, as it were, for what happened later.

It is one thing for evidence of relationship or circumstantial evidence to be used with respect to intention, to be used sometimes with respect to the likelihood of something actually having happened.  It is another and radically different thing and dangerous thing that could be used to describe, as it were, the nature of the accused on the occasion by reason of his nature on earlier occasions with respect to conduct which plainly the jury had in mind – the judge understood – they might well socially disapprove.  At page 32, about line 20, introduced as a digression but obviously right on point in relation to this kind of evidence, his Honour introduces an intent:

to say something about motive evidence.

The language is unfortunate in juxtaposition with the way in which he dealt with this episode:

Evidence that the accused had a motive to kill – namely, his unusual fury –

That picks up the expression at line 3 on the same page, “more than usual fury” –

is one of the circumstances that you may take into account in judging whether you’re satisfied beyond reasonable doubt . . . But by itself, motive is not sufficient to be satisfied of these matters.  It must be considered along with all of the other evidence.

Bearing in mind, of course, that at this point all the other evidence will properly include the material which is admissible, and therefore all the more required the cautionary direction which, alas, trial counsel did not seek.  When I say alas, I should make it crystal clear that does not amount to a criticism.  On page 34 at line 8 or so, in relation to the Crown’s case, his Honour tells the jury that:

It points to the accused’s loathing of Anita – or what it says is such loathing –

et cetera.  So the relationship use is again emphasised and to the forefront of the charge to the jury.  Then, page 37, about line 10 or so, the paragraph to which Justice Gummow has drawn attention:

I think Mr Martin said at most it’s four incidents –

This is about evidence of violence and the history of the relationship –

low grade violence, nothing that would lead you to the conclusion that the accused is likely to go out and commit murder or stay home and commit murder.  It’s a different ball park.

Now, it is one thing for a defence to say of evidence with which it must deal, because it is admissible – it is one thing for the defence to say, in effect, “Do not use this as illegitimate propensity reasoning, do not use this as illegitimate character or tendency reasoning”, and it is another thing for the court, the arbiter of the fair trial and architect of the fair trial, for the court, the trial judge, to decline to say, in effect, “As well as the merits of an argument concerning what this previous history might tell you that the defence puts to you – that merits are a matter for you – I direct you that it is dangerous and you ought not to proceed to reason that somebody that unpleasant is likely to have committed the ultimately antisocial act of murder”.

That is why that first full paragraph on page 37 of the application book, far from showing that the forensic choices for the defence at trial rendered unnecessary a warning about the limited or special use – perhaps, more accurately, the special ways in which you should be resisted of such evidence – far from indicating it was unnecessary, it really underlined its requirement as a matter of a fair trial.

Could I then finally take your Honours to a passage which perhaps applies to both limbs of my argument, but which is a culmination of the summing‑up in relation to inferences concerning intention, right at the heart of the case.  At page 45 about line 30 or so:

Well, what’s the evidence.

That is, the evidence about intention –

Really, the evidence that the Crown points to, and I suppose the evidence that the defence points to in large measure also, is much the same evidence that we’ve already referred to for the purposes of establishing the killing –

It is a bit like saying the evidence in the case is the evidence in the case.  It does not assist in discrimination and it does not assist in a resistance to reasoning from the admissible relationship and previous history evidence to a propensity to have killed, because the evidence of the circumstances of the killing, if it was done by the accused, is the same evidence that you would use to infer the intent.  Again, it is a formula, not necessarily as brief as it might have been, which really just says all the evidence is available to you.  The next paragraph:

Remember at this point we’re now assuming that you’ve got past the first step of being satisfied beyond reasonable doubt that the accused did kill the deceased.  Well, if you’re satisfied of that, then each side really points to much the same evidence as I’ve already referred to or as they referred to, to say that the killing was one where the necessary intent existed or where you couldn’t be satisfied beyond reasonable doubt that it did exist.  I will not go through it all again.

What is happening there is there is an assimilation of the use of evidence for the establishment of the mode of death – my second point, the first point in our written submissions – to the use of much the same body of evidence, probably different aspects of it, which might be available in relation to intention.  Dangerously, the body of evidence available in intention will include, of course, the evidence which is always admissible, notwithstanding it also proves what is sometimes called “propensity”.

There is, as I say, an assimilation, an elision, of any distinction both of those overlapping bodies of evidence, plus the use which could legitimately be made of it.  One can go so far as to say the jury is invited or instructed there to be quite indifferent to any such difference in the uses that ought to be made of those bodies of evidence.  In particular – now I come to my second point, the mode of death case – it is a way of instructing which rather detracts from, rather than enhances, the jury’s capacity to deal with the possibilities which the forensic pathologists had clearly left open.  To take one of them as the best example for the purposes of argument, that is, the swallowing of the tongue as the cause of death, your Honours will recall ‑ ‑ ‑

GUMMOW J:   What is the special leave point on this causes of death point?

MR WALKER:   The special leave point is an individual injustice point, but it is ‑ ‑ ‑

GUMMOW J:   What is the individual injustice?

MR WALKER:   That in the Court of Appeal they should not have regarded as reasonable, that is, within the statutory language of section…..or, alternatively, it should have been regarded as a miscarriage for a case to have been left on evidence which, as to one of the two ways the Crown says this unfortunate woman died, there was a lack of support in the forensic pathology material that lifted above the rank of speculation.  I refer here, of course, to the compressive force possibility.  Your Honours will remember that the Crown case said she died because there was, just before she died, forceful compression in her throat area – I hypothesise, of course – by the accused.  The alternative was, by the plastic bag method, which, according to the forensic pathologists, would not have left traces peculiarly indicative of that method. 

There was, as you know, the plastic bag with artefactual disturbance, meaning that the pathologists and the other experts were not able to cast further light on that question.  But the plastic bag was there.  They are not saying that was speculation.  But as to the other alternative which was – and it was just a two‑pronged Crown possibility case – if it was not this, it must have been that.  Either way, murder.  Now, that is the special leave point, because if in an “Either way, murder” argument one of the ways can be seen not to rise above the possibility of speculation, then, in our submission, it is quite unsafe – to use time‑honoured language – certainly it would not be reasonable and it would be a miscarriage – to use statutory language – for the conviction to be maintained.

Because of the possibility, by reason of the way the Crown had put it and the evidence had fallen out, that the jury had, as to some of them, convicted on the speculative route and others on the not speculative route.  The special leave point is that the Court of Appeal regarded as open to the jury speculation, in a way, of course, that has led to, on the individual merits of this case, a conviction for murder and the mandatory life sentence.

It is not possible to characterise my answer to your Honour Justice Gummow as not including a large measure of the individual justice of the case.  It does.  There is no general rule requiring adumbration.  All the general rules here are already out in the open and well understood.  I do not have that as a limb to special leave.  I do not have any principle established spuriously in the Court of Appeal that this Court ought, as it were, arrest before it goes further.  I do not have that limb to my special leave.

What I do have is that there was an error of approach in regarding the speculative possibility, which, upon testing by the forensic pathologists, could never arise above that status, being left to a jury, whereby the intermediate appellate court should never have been satisfied that the verdict was safe.  In statutory terms, it should have been satisfied that the result was not reasonable because of the possibility that could not be excluded, the possibility of a speculative basis.

A speculative basis for a verdict is always, in our submission, a ground for an appellate court to interfere, it being fundamental, that is, elementary and transcendent, that the outcome of a criminal trial must be seen as being the application of the designed and, within the choices available, the chosen process of reasoning upon facts which will match the law.  Speculation has always been regarded as lying outside the legitimate scope of jury conduct.  So that if a judge invited speculation, that is a serious error which, unless it was on something entirely trivial, would avoid any application of the proviso.

If the Crown invited speculation, and that was not sufficiently extirpated by directions or the like, then that would also be something which would, unless it was on a matter entirely trivial, escape the possibility of applying the proviso, because the nature of speculation is antithetical to the nature of the judicial process in which the jury decides facts.

GUMMOW J:   What do you say about the respondent’s argument on page 99, paragraphs 3.1, 3.2, 3.3 and 3.4, really?

MR WALKER:   It drives one to the way in which Justice Jerrard dealt with it.  One sees that in 3.1.  Could I deal with that aspect first?  To go back to pages 73 and 74, a conclusion is found at the foot of page 74, at the top of page 75.  That admission – that is, my client’s admission of a conversation or words by the deceased, which he said had mistaken what was going on – that admission lifted the possibility of death from that cause above the level of speculation.

What my client said by way of the mistaken words of the deceased cannot, of course, alter the nature of medical observation or medical possibility.  It cannot, in the nature of things, lift a speculative possibility above it at all for the accused to say, “And at one stage she thought I was trying to kill her”.  He, after all, puts that into the factual mix.  But, in paragraph [47] on page 74, this is what is adopted by the Crown against us in the passages to which Justice Gummow has drawn attention, that the two possible ways in which my client could be found to have caused Ms Scipione’s death being referred to in the Crown case, and then as to Professor Naylor’s opinion it is said:

It was open to the jury to accept Professor Naylor’s opinion as being much more than speculation, and being a very experienced pathologist’s view formed after a meticulous examination, and to conclude that Mr Glattback had caused the death by compressing Ms Scipione’s neck immediately before she died; or to find that Mr Glattback asphyxiated Ms Scipione using a plastic bag.

By putting in that last alternative, in our submission, the focus remains on whether or not the pathologist’s evidence was capable of doing that.  The only reason he gives for lifting it above speculation is the so‑called admission by my client in his narrative of words between him and the deceased during what I will call “the struggle”.

However, when one goes back to paragraph [43] on page 73, with the conclusion on page 74, paragraph [44], one sees the same judge, that is, the court accepted that my learned predecessor’s submissions “accurately reflected the evidence”.  Their accurate reflection of the evidence was that there was no evidence of a second bout of neck compression, that the neck compression evidence, of its nature, for physiological reasons and medical scientific reasons, could not have been that which immediately preceded the death.  It must have been considerably beforehand.  For those reasons, in our submission, there is the miscarriage for which we seek special leave.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Martin. 

We are not satisfied there are sufficient prospects of success on either of the grounds advanced to warrant a grant of special leave.  Nor are we satisfied that there has been any miscarriage of justice.  Accordingly, special leave is refused. 

AT 11.46 AM THE MATTER WAS CONCLUDED