Hinds v The Queen

[1993] HCATrans 40

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B36 of 1992

B e t w e e n -

KARL KALEVY HINDS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 4 MARCH 1993, AT 10.14 AM

Copyright in the High Court of Australia

Hinds 1 4/3/93

MR I.D.F. CALLINAN, OC:  May it please the Court, I appear

with my learned friend, MR M.D. MARTIN, for the

applicant. (instructed by Baker Johnson &

Partners)

MR P.F. RUTLEDGE:  May it please the Court, I appear with

MR T.A. FULLER for the respondent. (instructed by

-...-::, . . "

D. Field, Solicitor to Director of	.	:i ...
Prosecutions (Queensland))

DEANE J: Yes, Mr Callinan?

MR CALLINAN: If the Court pleases, the applicant in this

case was convicted of the murder of his wife on an

entirely circumstantial case. The evidence was

that on a previous occasion, that is in the

preceding year, the wife had left home of her own

accord and had voluntarily returned home after five

days, having left a note before her departure.

She next disappeared on 18 June 1989. The

applicant, with his daughter, reported that she was

missing to the police about a week afterwards.

About two months after that, there were some spots

noticed on the bedroom wall. On 16 July 1990, that is a year after the wife disappeared, the applicant provided a statement to the police. Shortly after

that, blood samples were taken from the bedroom.

There was a further record of interview, and again there was a third record of interview between the appellant and the investigating police.

If the Court pleases, the principal pieces of

evidence against the applicant were, of course, the

fact that his wife had disappeared, but that he had

in fact sold, at about the time of her

disappearance, the bed in which they had slept. It

was common ground that he had sold the bed, however

some evidence was called to disprove a statement

which he made during the course of one of the

interviews to the effect that he had used a radio

programme to sell the bed. There was a radio
programme which effectively put purchasers and

vendors together of household goods by advertising

them. He said that he had sold the bed at about

the time that his wife left. His daughter gave

evidence that immediately after, that is on the day

after her departure, that is on a Monday, the bed

was missing.	He had said he had sold the bed on a
Sunday.	The Crown called a witness, who was

effectively the operator of the radio station, to

prove that the radio programme did not operate on

the Sunday, and that was relied upon as a false

denial and a strand in the cord of the

circumstantial evidence against the accused.

Hinds 2 4/3/93

TOOHEY J:  Mr Callinan, when you say it was common ground

that he had sold the bed, common ground to what

extent, what circumstances were common ground?

MR CALLINAN:  He never denied that he had sold the bed or

that the bed had gone from the matrimonial home.

DAWSON J; .It had gone but did the Crown allege that it had

been sold?

MR CALLINAN:  No, the Crown did not allege that it had been

sold, I am sorry.

TOOHEY J:  So there was no common ground in that respect?

MR CALLINAN:  No, Your Honour, with respect, no. I

misstated it in that sense. It was common ground

that the bed had gone, but the point was that he

said he had sold it, the Crown relied upon the fact

of its disappearance. But the point that we seek

to make in relation to that is that the calling of
the operator of the radio station in disproof of

the fact that the radio programme operated on the

Sunday, really was disproof of an entirely

peripheral matter, and in that regard, if

Your Honours please, we rely upon Piddington's case

which we refer to in our outline.

DEANE J:	Mr Callinan, there is nothing about this in the
judgement of the Court of Appeal.  Was the point
taken?
MR CALLINAN:	No, it was not taken, Your Honours.

DEANE J: That is a bit of a problem.

MR CALLINAN:  Yes, it is and, indeed, I should say to the

Court immediately that the next point that I rely

upon also was not taken in the - - -

DEANE J: And was the evidence objected to?
MR CALLINAN:	No.
DEANE J:	The extracts of the transcript we have I do not

think contain the relevant evidence from a

Miss Palmer.

MR CALLINAN:  A Mr Palmer, Your Honours. I can state it

very shortly, the effect of it. It was simply that

the programme was not broadcast on the Sunday.

DEANE J: I see. Yes, we have a page from her evidence but

I do not think it says that which - I was wondering

why we had it, but what you say explains it.

Hinds 3 4/3/93

MR CALLINAN: Yes, Your Honours, and I do not think my

summary of that evidence is contradicted by the

Crown. But the point was not taken down below.

DAWSON J:  It was not only a false denial point, was it? I

mean, surely the Crown case was that he had

disposed of the bed and the inference was that it

was bloodstained.

MR CALLINAN:	Yes, we do not dispute that but, of course, the false denial could have only been relied upon,
we would submit, as a false denial if it related to
a material matter, and we say the manner in which
he may or may not have disposed of the bed was not
a material matter.

DAWSON J:  Why was it not? I mean, if from all the facts,

you could infer that he disposed of the bed in some

manner other than sale, so it would not be

available as evidence because of the bloodstains,

if that were the inference, that was relevant

evidence.

MR CALLINAN:  Your Honour, may I, with respect, accept that,

but the response we would make is this. The

disproof of the operation of the radio program on

the Sunday is not probative of the material matter

which is that he disposed of the bed in order to

conceal some evidence. It is probative of what we

would submit is a peripheral matter only. It is

very like the evidence which was held to have been

wrongly received in Piddington's case.

Your Honours will recollect that the evidence

there was that a person who claimed to have

witnessed the accident also claimed that he had

been undertaking a banking transaction and a

banking officer was called to prove that no such

banking transaction took place on that day.	Now,
we would submit that this evidence is in exactly

the same category, and bearing in mind, Your

Honours, that it was an entirely circumstantial

case. It was a matter which occupied, I think,

some 14 or so pages of the learned trial judge's

summing up and it was presented as a major aspect

of the Crown case. So we do submit, with respect,

that it was wrongly relied upon as a false denial

shortly on the ground that - - -

DAWSON J: It is not a false denial; it is an explanation

which was put forward by the accused which the

Crown says was untrue, and that exhibits guilt, is

what the Crown is saying.

MR CALLINAN:  Your Honour, it was put forward, with respect,

as a false denial and indeed the summing up treated

Hinds 4 4/3/93

it as a false denial. In express terms the learned

trial judge did so treat it.

DAWSON J: Well, it is just a use of words. I mean, he was

not denying anything; he was asserting something.

MR CALLINAN: But, Your Honour, the evidence to which we

seek to object now is the evidence of Mr Palmer,

which purported to disprove that he could have used

the radio program on the Sunday, because it was not

operating on the Sunday. Your Honours - - -

TOOHEY J:  Do you say that evidence was inadmissible,

Mr Callinan, or was admissible but ought not to have been admitted because of its possible prejudice to the applicant?

MR CALLINAN:  We submit it should not have been admitted,

Your Honours.

TOOHEY J: It should not - - -

MR CALLINAN:  Should not have been because it was not

probative on any material issue; it created a false

issue.

TOOHEY J: Well, you say it was inadmissible, do you?

MR CALLINAN:  Yes, Your Honour. Alternatively, we would say

that if it were admissible it should not have been

treated in the way in which it was. But our

principal submission is that it was simply not

admissible.

In this case, the applicant did not give

evidence himself, so there was nothing to
contradict so far as in-court evidence was

concerned. The contradiction was offered through

the evidence of Mr Palmer in respect of matters

which emerged during the records of interview, or

during the interviews.

Your Honours, the other matter to which we

refer is the DNA evidence, and the position with

respect to that was this: marks of blood were

found on the wall of the bedroom; during the course

of one of the interviews the applicant was asked

whether he could offer any explanation as to how

they came there. It is right to say that in a very

tentative way only he said that it could have been

caused by his sneezing, because he had a tendency

on occasion to bleed from the nose. He also said

that there had been another occasion upon which he

had staked his foot and some blood had flowed on to

the floor, but the principal evidence offered

against him was in respect of the blood on the

wall. Now, so far as that was concerned, as I say,

Hinds 4/3/93

he offered only a tentative explanation in that

regard. His primary approach simply was he did not

know how it got there. He was intensively

interrogated about the blood.

TOOHEY J: Excuse me, Mr Callinan. I was wondering whether

we had any photographic exhibits.

MR CALLINAN: There were photographs, Your Honour, but I

regret to say I have not seen them. This is the

first time I have appeared in the matter and they

apparently went to Canberra before.	I am told they
are in Canberra but I have not -

TOOHEY J: It is just a bit difficult for us to make an

assessment when you say there was blood on the

wall. I mean, it could have been within a diameter

of a foot or it could have been spattered from the

top of the wall to the bottom.	I mean, what are we
talking about?

MR CALLINAN: Well, Your Honour, I have to say that the

evidence as to the appearance and patterns is

somewhat conflicting in any event. For example,
during the course of one of the interviews, the

senior investigating policeman described the effect

as one as if a water pistol had spurted blood on

the wall, but there was no scientific evidence to
that effect. I regret to inform Your Honour, and I

apologize for this, I have not seen the exhibits; I

have not been able to obtain them, although I

attempted to do so.

DEANE J: Well, if they are in Canberra it is not your

fault, Mr Callinan.

MR CALLINAN:  I did attempt to see them but I have not. If

I could just give an outline of the evidence in

relation to the blood. In the event I think some

positive and they, if Your Honours please, were	150-odd spots were identified but only two tested
according to the DNA testing, evidence of which was
adduced by the Crown, demonstrated that the blood was not that of the accused.

Evidence was called by the defence from an

expert, an appropriately qualified expert, who said

that he regarded the test, which had been taken by

the Crown, as unreliable because of the presence of

contaminants and that blood, particularly aged

blood as this was, is especially susceptible to

contaminants, which might not be removed simpiy by washing, which was the technique undertaken by the

Crown. So that there was that conflict to which

the learned trial judge drew attention.

Hinds 6 4/3/93

Your Honours, again, the evidence that this

was not the applicant's blood was really offered in

disproof of what was no more than a tentative
explanation by him of how the blood may have got on
the wall and it is in a similar category in many
respects to the evidence in relation to the radio

programme. These were, I think it is right to say,

keystones in the circumstantial evidence case

presented by the Crown. So those are the two
principal matters, Your Honours, but for a number

of other reasons including the two to which I have

referred, we would submit that the verdict was

unsafe and unsatisfactory.

The principal aspects upon which we would rely in that regard are these: there was no body, no

motive, indeed the learned trial judge expressly

told the jury, I might say, that they should put

out of their mind any suggestion that there may

have been a motive. There was no body, there was

no motive, there was no history at all of violence

or threats in any way and indeed the applicant

voluntarily, with his daughter, reported his wife

as missing.

There had been the previous occasion, as I

informed Your Honours, upon which he had

voluntarily left home and voluntarily returned.

Perhaps the only other matter to which I would

refer is this: that the wife was a masseuse by

occupation and that from time to time she received

patients in her house for massage. It was Swedish

massage; she was a northern European.

So for all of those reasons, we would submit

to Your Honours, there must be a significant

possibility that an innocent person has been

convicted because the evidence did not establish

guilt to the requisite standard of proof. When I

put the matter that way I am using the language of

the Court in Chidiac v Reg, 171 CLR 432,

His Honour the Chief Justice at page 444.

So, Your Honours, we would submit that it was,

as we say, a purely circumstantial evidence case, a

very, very weak circumstantial evidence case, and

it was flawed in particular in the two respects to

which I have referred. Your Honours, so far as its

importance is concerned, we would submit that in a

case of murder where evidence of this kind has been

received and obviously acted upon by a jury, it is

in the interests of the administration of justice

that a grant of special leave be made.

We would submit that there is also a special

leave point with respect to the so-called false

denials, both in relation to the blood, the

Hinds 4/3/93

presence of the blood on the wall, and the radio

programme, and the extent to which Shepherd's case

and the observations of the Court in Chamberlain's

case can be applied to these sorts of situations is

a matter for consideration by the Court.

DEANE J: Thank you, Mr Callinan. The Court need not

trouble you, Mr Rutledge. Notwithstanding the

matters that have been put by Mr Callinan of

Queen's Counsel, the Court does not consider that

an appeal in this matter would enjoy sufficient

prospect of success to warrant a grant of special
leave. Accordingly, the application for special

leave to appeal is refused.

AT 10.33 AM THE MATTER WAS ADJOURNED SINE DIE

Hinds 4/3/93