Hill v The Queen

[1997] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A7 of 1997

B e t w e e n -

JUSTIN BIRK HILL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 4 SEPTEMBER 1997, AT 12.35 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   If the Court pleases, I appear for the applicant with my learned friend, MR D. AGRESTA.  (instructed by Patsouris & Associates)

MS W.J. ABRAHAM:   May it please the Court, I appear with my learned friend, MS J.S. BASHEER, for the respondent.  (instructed by Mr Paul Rofe, QC, Director of Public Prosecutions)(SA)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia):   If it please the Court, I appear with my learned friend, DR. G.L. EBBECK, for the Attorney-General intervening.  (instructed by the Crown Solicitor for the State of South Australia).  If it please the Court, we have filed a written submission and do not intend to put oral submissions to the Court, but are available to answer any questions the Court may raise.  The written submissions were not in the application book.  I think we had put them in a little late and they are on a separate sheet.

BRENNAN CJ:   Yes, we have them, thank you, Mr Solicitor.  Yes, Mr Abbott.

MR ABBOTT:   If the Court pleases, in this matter there are, apart from the Pehlivanides issue, three other matters which, in our submission, are worthy of a grant of special leave.  I point out, in relation to the sentencing issue, Mr Hill appeals against his conviction and he does not rest on the basis that he is content with the conviction.

KIRBY J:   May I just ask you:  you have not a ground in your application that if the court has the power to proceed in the way that you complain of, that if must, nonetheless, by the common law provide reasons for its decision.  You do not raise that question?  Because there is a decision of Coulter in this Court that upholds the validity of the process.  You would not really have much chance of reagitating that point.

MR ABBOTT:   We do, and perhaps that is an omission that I should rectify because - - -

KIRBY J:   I think that is raised in either the Attorney-General’s submissions or in the respondent’s submissions, the issue of reasons.

MR ABBOTT:   Your Honours, talking about the ground of appeal that was dealt with in private by the Chief Justice - - -

KIRBY J:   In other words, if it be lawful to proceed in private as Coulter suggests, that nonetheless the matter being part of the judicial process, reasons must be given, even if only short ones.

MR ABBOTT:   I am sorry, I do not believe that is specifically stated but we would say that is a necessary incident of the judicial process.  We complain about the entire judicial - - -

KIRBY J:   It is not a ground of your application for special leave.

MR ABBOTT:   Well, I should perhaps make it.  Could I leave that ground which is effectively the fourth ground, that is our complaint about - - -

KIRBY J:   It is not the fourth ground yet.

MR ABBOTT:   Could I take the Court to what were the consolidated grounds of appeal at page 119 of the application book and deal firstly with what featured as ground 3 in our summary of argument which is at page 167 of the application book.  The Court will see, by reference to page 119, that it was a ground of appeal ventilated before the Full Court; that:

The Learned Trial Judge erred in admitting evidence of items -

.....

and in particular in allowing the police witnesses to give evidence in respect of all or some of the types of items and whether they were the indicia of drug dealers.

KIRBY J:   Was there any contest at the trial that those items were found on the premises?

MR ABBOTT:   There was no contest that they were found at the appellant’s home on that date.  That ground before this Court is spelled out in our summary of argument at page 167 and I rely upon what I have said there.  I want to very briefly take the Court to those passages in the summing up on which we rely. 

I point out that there was a pre-trial hearing to exclude this material as evidence of items found at the house, that is evidence of items found only, and the application book, at pages 17 and 18 is the judge’s ruling on that issue.  There was no suggestion then that additional opinion evidence would be led by the police officers, assuming the evidence of finding was let in.

What happened, however, can best be gleaned from the summing up at application book, page 44, where his Honour the learned trial judge said, just under halfway down:

As to the finding in the accused’s flat of the loaded firearm, the mace, the mobile telephones and the encryptor, there is evidence suggesting that persons involved in the illegal production of drugs often have a revolver or a gas cylinder.

Et cetera, et cetera.  And the start of the next paragraph:

There was also evidence from the police officers -

so, it is clear where the evidence comes from.  He is talking about, in essence, opinion evidence from the police officers.  That continues over on page 45.  He said it was:

said, by the police, to be common amongst people involved in illegal drug activities.  So it is for you to say whether you think that is an item of significant circumstantial evidence corroborating the prosecution’s case with respect to the first count.

That is taken up at page 51 and at the top of the page the learned trial judge said:

I have already told you about the finding in the accused’s flat -

et cetera, et cetera.  The next sentence begins:

Persons dealing in drugs may become involved in situations placing their personal safety at risk, it’s not unknown for them to arm themselves or carry some sort of protective device, particularly when in possession of large quantities of drugs.  The evidence also from police officers about the high turnover and swapping around of mobile phones is another situation said by them to be common among people involved in illegal drug activities.

BRENNAN CJ:   What is the point of objection here?

MR ABBOTT:   The point is that this was far more than evidence of finding.  It is evidence of either propensity or opinion, or both.

BRENNAN CJ:   Say it is an opinion.

MR ABBOTT:   The issue then is whether it is properly admissible as opinion evidence.  There are cases on our list of authorities which try and admit this evidence, not on the basis of opinion but because it is evidence of the finding on previous occasions from which conclusions might be able to be drawn and we say that - - -

BRENNAN CJ:   But the objection has to be on the footing that the police officer was allowed to say that these items are items which are frequently possessed by drug manufacturers, is that right?

MR ABBOTT:   Yes.

BRENNAN CJ:   Well now, what is wrong with it?

MR ABBOTT:   What is wrong with it is that there is no foundation.  There was objection and it is opinion evidence.

BRENNAN CJ:   Do you mean police officers were not qualified to give that evidence?

MR ABBOTT:   Not as I understand it, in the sense that it was merely given as, “This is my view as an experienced police officer that these items are regularly found in the company of drug dealers.”  There was no initial inquiry and no way of challenging since the evidence just came out before the jury.  No way which it properly could be challenged other than by - - -

BRENNAN CJ:   We are talking about admissibility.  What is the ground of inadmissibility?

MR ABBOTT:   In that it is, in essence, the ultimate issue.  It is either a field of expertise in respect of which an opinion can be given or it is not.  There was no ruling - assuming it comes under the rubric of opinion evidence - of either the trial judge or of the Full Court in which this is dealt with in any proper way as opinion evidence.  It was evidence which floated in unannounced and unknown to the defence counsel at the time and accompanied the evidence of finding.  It was thereafter the subject of complaint before the Full Court.

KIRBY J:   You would not have complained of counsel rising in his place and saying to the jury that they might infer from this that this is the sort of equipment that drug users might have, or drug manufacturers might have in their homes.  You could not really complain about that.  If there is no dispute that the four mobile phones, encryptor, loaded pistol and so on were all found there, then that is the sort of thing that counsel could urge on the jury as a matter of common sense.  Your complaint is about the policemen giving the opinion.

MR ABBOTT:   Yes.  It is circumstantial evidence from which inferences might have been drawn, namely, that the applicant was a drug dealer.  The ultimate issue, namely, whether he was, was in fact answered by the police who said the finding of this material incontrovertibly demonstrates that he was.

BRENNAN CJ:   That is overstating it, is it not?  I mean, take other examples.  I do not know whether it is the practice in this State but I know in the State from which I came if there was a raid on a brothel, for example, evidence was frequently given of the things that were found there.  Is that not the practice here, that if you are dealing with a particular area of criminal activity, that things which are frequently to be found in association with it are found there?

MR ABBOTT:   Evidence of finding is one thing.  Evidence of an opinion that can be given as to the frequency of finding is another.  I know of no decision which allows that to be given and it is a matter that was not addressed by the Full Court when they came to consider this matter.

BRENNAN CJ:   Well, if it is a question of opinion, the question is whether the person who expresses the opinion, having regard to the facts as to which the opinion is expressed, has some particular expertise which allows the expression of the opinion.

MR ABBOTT:   That is an issue that was, in my submission, not investigated because it was not put forward as opinion evidence.

BRENNAN CJ:   What is the special leave point?

MR ABBOTT:   That if it gets in at all, it gets in only as opinion evidence.

BRENNAN CJ:   But what is the special leave point?

MR ABBOTT:   Only this, that at page 140 the Full Court recognised that it got in as opinion evidence.  I am referring to page 140, line 10.  At page 153 they deal with it, not under the heading of opinion evidence, they say, wrongly, that - this is line 12:

It was said that this was evidence of a criminal disposition, and attracted the rules already referred to.

It was said that it was evidence of criminal disposition and it was also asserted that it was opinion evidence.  We argued that the learned trial judge was in error in admitting it on two bases:  (a) opinion evidence; (b) evidence of disposition. 

The Full Court dealt with the arguments of counsel on that issue by saying:

The danger of misuse was there, but the fact is that if the jury rejected Hill’s evidence relating to these matters then the possession of the relevant items had considerable potential significance.

We agree it has considerable potential significance but it is not a potential significance which they acquired by virtue of the assistance of police officers saying these items are regularly found in company of drug dealers, particularly when most, if not all of the items seem to be - at least the ones out of the safe - appear to be items of which there was an innocent explanation.

TOOHEY J:   Well then, what significance did they have, or what potential significance did they have?

MR ABBOTT:   The constellation of items found was said by the police officers to have the significance that drug dealers had this accumulation.  It is like saying, in a house, “I find these four items, therefore you can make that sort of conclusion about the inhabitant of the house.”

TOOHEY J:   I understand that but I thought you were accepting what the court said in that sentence, the danger of misuse was there, but the fact is that if the jury rejected Hill’s evidence relating to these matters then the possession of the items had considerable potential significance.  I mean, apart from bearing on credibility, what potential significance could it have other than if it was accompanied by some opinion evidence?

MR ABBOTT:   It was not for the police officers to give the opinion evidence.  It was for the jury to draw the inferences from the circumstantial evidence if they were so minded on the totality of all the evidence before them.  If there was to be opinion evidence, and I suggest and submit that opinion evidence of this sort must pass the test of all opinion evidence, this evidence certainly did not.

KIRBY J:   Why would police not have a relevant expertise having gone - I can see the dangers from the point of view of your client.  This might shift the ultimate issue to opinions of police of their experience and thereby, as it were, put a blank cloud over the defendant simply because of police experience in other cases which are very hard to check and test.  I suppose that is the unfairness that you urge but would not police have, with raids on drug premises, a relevant expertise from which they could base an opinion?

MR ABBOTT:   Where would you draw the line?  If you say they have that expertise in relation to drug dealers, why not every other sort of offender?  I mean, that is the danger of this evidence and there ought to be rules which strictly confine it and it ought to be if it is to be allowed on the basis it is opinion evidence, it ought to get in according to the normal rules of opinion evidence.

KIRBY J:   What is the rule of opinion evidence that this breached?

MR ABBOTT:   The proof of the existence of a body of knowledge, well regarded.  Proof of the special expertise and knowledge of the police and proof that this material fell within established and well-known rubrics which anyone can ascertain by reference to the specialised body of knowledge.  Now, the sort of evidence that was given is people who have mobile phones are criminals.

KIRBY J:   That is not a good argument, Mr Abbott, because you have to look at it in its totality:  mobile phones, encryptors, listening devices, mace, all the other things.  Let us become a bit real for the moment.

MR ABBOTT:   The other complaint we make is that rather than dealing with it properly, it is our submission that our Full Court singularly failed to deal with it.

BRENNAN CJ:   Now, you have said that before.  Your time is limited to 20 minutes.

MR ABBOTT:   Exactly.  Can I turn then to the complaint we make about the directions on corroboration.  Those are to be found at page 39 of the summing up.  The point is quite brief.  At line 6 on page 39 of the application book, with reference to - - -

KIRBY J:   The judge referred to “other evidence” and did not specify which of all the other evidence.  You did not ask for a redirection.  You were content with the direction.  It seems a very small point.  I think you have another big fish to fry, have you not?

MR ABBOTT:   Your Honour says it is a small point.  In our submission, this is a corroboration point as to whether or not other evidence, not corroborative, can or cannot be used in conjunction with corroborative evidence and, if so, what is the basis for its use and what instruction should be given to a jury.

BRENNAN CJ:   These are all settled points, are they not?  Your complaint is that the court got it wrong?

MR ABBOTT:   Yes, in that regard.

BRENNAN CJ:   That may be so.

MR ABBOTT:   The third point deals, other than the Pehlivanides point, with the issue that we raised in relation to the criminal appeal rules.

KIRBY J:   But was that not determined by this Court in Coulter v The Queen (1988) 164 CLR 350, by a majority?

MR ABBOTT:   Yes.  Certainly in Coulter they said you could have - - -

KIRBY J:   You cannot reargue that.  I say that with respect.  I think it is not a viable special leave point.  It leaves you with the reasons point.

MR ABBOTT:   What happened in this case was that the Full Court sat in private, announced a decision, gave no reasons - - -

BRENNAN CJ:   Announced a decision on what?

MR ABBOTT:   Announced a decision on whether they would allow this ground of appeal to be argued before it. 

BRENNAN CJ:   The matter was heard first by a single judge, was it not?

MR ABBOTT:   I am sorry?

BRENNAN CJ:   The application was heard by the Chief Justice? 

MR ABBOTT:   The application was heard by the Chief Justice.  He then, I think, just before the start of the hearing by the Full Court, announced that this ground of appeal had been heard in private, even though we had applied to be heard by way of oral argument and, without giving reasons, dismissed that ground of appeal.

TOOHEY J:   Could you identify “this ground of appeal”?

MR ABBOTT:   Yes.

TOOHEY J:   Because leave to appeal was refused, was it not, on one ground but granted on all other grounds.

MR ABBOTT:   Yes.  I am just trying to find - - -

KIRBY J:   Is this on the corroboration point?

MR ABBOTT:   It was on the issue of whether or not the information properly alleged an offence because of the failure to specify any amount in relation to - - -

KIRBY J:   That is the point we have already argued.  So, this would not be a good vehicle to test the question of reasons because it leads nowhere, there being no point in the ground of which you were denied the opportunity of reasons or of a public hearing, and you have had that hearing now before this Court.

MR ABBOTT:   Given the result in Pehlivanides I can hardly assert that ‑ ‑ ‑

KIRBY J:   If there was a point which had substance or arguable substance, that would be the point on which to raise the question of the obligation of a judicial body to provide reasons but if the point is the point raised in the first application, then it leads nowhere.

MR ABBOTT:   Yes.  I can tell the Court that there is part of Pehlivanides and part not of Pehlivanides.  It is page 115.  Before I sit down, I rely upon my written argument on this aspect.  It is grounds 1 and 2 on page 115 that were not considered.

KIRBY J:   This count was a nullity because the statute had not been fulfilled by executive action.

MR ABBOTT:   Also, the second count was a nullity because:

provides no criminal sanction.....and because at least one of the elements of the offence alleged to be the object of the conspiracy was absent -

namely, the criminal enterprise.  So, we were arguing that because there was no penalty provided, then there was no offence and so - - -

KIRBY J:   I thought you acknowledged that there was an offence in the other case - - -

MR ABBOTT:   Yes, in Pehlivanides, we do.

KIRBY J:   - - - and asked that the matter go back to be resentenced.

MR ABBOTT:   That is why I said this is different from Pehlivanides, and that is why I started off by saying that we attack the conviction in the case of Hill not accepting that what we had conceded in Pehlivanides applied.  So, the information we asserted was a nullity because of the grounds set out at page 115.

BRENNAN CJ:   I see your time has expired, Mr Abbott.

MR ABBOTT:   If the Court pleases.

BRENNAN CJ:   So far as the application rests on the same grounds as that disposed of in the Pehlivanides’ Case the application does not warrant a grant of special leave.

So far as the application rests on the challenge to the admission of evidence of the fact that certain equipment was frequently used by drug dealers, it also raises no question of general importance which requires a grant of special leave.  Nor does the question of corroboration raise a ground which warrants the grant of special leave.

The argument with respect to the procedure adopted by the Court of Criminal Appeal in refusing leave to add grounds of appeal does not, in the circumstances of this case, require a grant of special leave,  Special leave is refused.

KIRBY J:   I would only add that, speaking for myself, the issue of whether the failure to give reasons would be a matter that would occasion a grant of special leave may need to be considered but is not appropriate in this case.

AT 12.59 PM THE MATTER WAS CONCLUDED