Hore v The Queen

[2006] HCATrans 20

[2006] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S139 of 2005

B e t w e e n -

ANTHONY JOHN HORE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 12.04 PM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR G.E. SMITH, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

KIRBY J:   Yes, Mr Barker.

MR BARKER: Your Honours, there are two factors that make this a case for special leave. One is that there is a serious injustice which only this Court can remedy; secondly, this Court has not before had a look at section 128 of the Evidence Act.  I want to make some submissions in expansion of the application on two grounds.  If I could take you to page 371 of the application book and identify the grounds I want to talk about.  The first is 2(B)(iii).  That is to do with the identification of blood on a boot said to have been worn by the applicant.  We say that that was a matter which ought to have been the subject of a direction that it had to be proved beyond reasonable doubt.  The blood was not identified as blood.

KIRBY J:   Was that sought at the trial?

MR BARKER:   That was sought at the trial, yes.  I can take your Honours to that.  The second ground I want to enlarge upon is the failure of the trial judge to ‑ ‑ ‑

KIRBY J:   Is your point that whether it was blood should have been the subject of that direction or whether it was blood and the blood of the deceased?

MR BARKER:   Firstly, whether the appellant was wearing the boots at all on the day in question.

KIRBY J:   But they were his size, were they not?

MR BARKER:   They were of his size.

KIRBY J:   And unusually large boots.  They were size 12, I think.

MR BARKER:   I do not know whether they were unusually large.

KIRBY J:   Well, I have always been accused of having a large foot, so I am very sensitive on such matters.

MR BARKER:   There was an indeterminate mixture of DNA which may or may not have pointed to him having worn them.  No conclusion could be reached.  There was no statistical evidence because there were a number of contributors to the DNA on the outside of the boot.  I am not talking about the deceased; I am talking about the applicant.

KIRBY J:   But the boot is in the cell, the boot contains what appears to be a splatter of blood.  An expert says it was consistent with blood and a DNA test said it is compatible with the blood of the deceased.

MR BARKER:   It is compatible with the deceased’s DNA.

KIRBY J:   That is pretty powerful stuff.

MR BARKER:   The spatter was not analysed.

KIRBY J:   I realise that there were some defects and the quantity of it was very small and therefore the question ‑ ‑ ‑

MR BARKER:   That is what the pathologist said but what was put to the jury was that there was a spatter over a large part of the boot.  You see, the problems were these.  Firstly Hore’s cell was searched on the day of the murder, which was 19 March 2000.  The boots were not removed.  The cell was open to others as well as Hore.  The boots were found on a second search two days later and, gaols being what they are, it would have been open to a jury to contemplate the possibility that the boots had been planted there.

KIRBY J:   But did the evidence show that when the boot was taken for the purpose of analysis, your client said, “I’ve been given a present”?

MR BARKER:   I cannot tell you – and I do not think the application book helps either – when the analysis was made, but it was obviously some time after the boot was seized.

KIRBY J:   But one would expect that if they were not your client’s boots or he did not know them or had never seen them before that he would have made that very clear at the time they were taken.

MR BARKER: Well, he denied they were his. He was not there. He had been taken before the second search and he denied to the investigating detective that they were his boots. They were gaol issue boots but he said he did not have them and they were not his. The problem is this, your Honours. There are two and only two incriminating pieces of evidence against Mr Hore, we say. One is the boot and the other is the evidence of Mr Chatto who changed his evidence dramatically between committal and trial and in respect of whom the judge declined to direct that he answer questions under the protection of a certificate under section 128 of the Evidence Act.

KIRBY J:   There was one other witness who identified a person who answered to a general description of your client.

MR BARKER:   Yes, but it would be quite impossible to conclude that it was satisfactory identification evidence.

KIRBY J:   Alone, yes.

MR BARKER:   So the boot and Chatto were critical circumstantial evidence and yet, when counsel sought a direction, his Honour refused to give it, saying that they were merely sticks along the way to making the bundle of circumstantial evidence.  Could I take you to page 60, line 45 of the application book where defence counsel said:

Your Honour, there are two matters.  The first of which is that your Honour told the jury “you do not have to be satisfied beyond reasonable doubt there was blood on the boots”.  Your Honour, I would be submitting that that is not a correct direction –

His Honour queried this.  Mr Spencer said on page 61, point 5:

It is an intermediate fact that the blood and splattering only occurs at the scene when he is hit by the rock.  Therefore, if it is said to be blood and it hasn’t been proved, that is an intermediate fact that must be established beyond reasonable doubt.

HIS HONOUR:   That is the same as saying that the jury must acquit unless they find it is blood.

The concession then made we say was wrongly made, that it was not open to the jury to convict unless they found that the spatter was blood.  Then in the middle of page 61 he submitted that it was an intermediate fact which needed to be proved.  Counsel for the other accused made the same application at the bottom of page 61 and his Honour said at page 63 that the concession made was “tantamount to saying it is not an intermediate fact.”  Whatever counsel says, he cannot make a case against him unless the evidence supports it in a criminal trial.  We submit that his Honour was manifestly wrong in the direction he gave to the jury.

HAYNE J:   Because you say it was an intermediate fact or for some other reason?

MR BARKER:   No, it was an intermediate fact.

HAYNE J:   Intermediate in what sense, Mr Barker?  It was between what and what?

MR BARKER:   It was one of the two facts upon which a conclusion of beyond reasonable doubt was possible.  They were two factors upon which the conviction rests.  Let me take you to page 175, line 45 of the application book.  His Honour said after the DNA direction about the deceased:

Now, the Crown case on the right boot is that the large splatters . . . were blood and that the that blood was deposited there during the attack on Mr Moore.

He said at page 197 the general area of the spatter and at line 25:

he pointed out to you an area of fairly close spattering and then he noted an area outside it of less dense . . . general spatter on the boot.  It constituted most of the heel and the sole and it went into the upper and it cut across the elastic insert –

He said that Mr Goetz – that is the pathologist – said that there was not enough material to confirm it was blood, which seems odd in the light of the extensive staining which the Crown relied upon.

The evidence was of considerable importance.  That was highlighted by his Honour in his address to the jury.  It was highlighted by the Crown Prosecutor in his address to the jury.  That is not in the application book but it is referred to in the Court of Criminal Appeal judgment.  Can I also take you to page 177, line 55, where his Honour told the jury what use they could make of this blood evidence:

If it was blood on the boot . . . you can use the evidence, if you wish, to reason that the DNA that was extracted by Mr Goetz came from that blood.  You know the DNA had a profile which matched the profile of Mr Moore’s . . . you may reason that Mr Moore’s blood was deposited on the boot during the attack and that would require the wearer of the boot to have been present during the attack.  If you come by this process of reasoning to the conclusion that Mr Hore was present when Mr Moore was attacked, you can use your conclusion to support the evidence of anybody who identified him as one of the men near the place where Mr Moore was killed –

So it is evidence which was critical, in my submission, to the issues before the jury.

I just want to take you to what his Honour said to the jury about proof beyond reasonable doubt.  The direction firstly is at page 54 of the application book, where he said at line 25 – he had spoken about circumstantial evidence.  At line 20:

An essential circumstance is like a link in a chain of proof.  If it is broken, that is, if the circumstance is not proved to have existed, the chain breaks and guilt cannot be proved.

There are two such circumstances in the case of each accused, namely that he was a party to the joint criminal enterprise alleged by the Crown and that he was present when Mr Moore was killed, taking part in the attack or assisting in it or encouraging in it or standing by ready to assist if called upon, because proof of those facts is critical.  They have to be proved beyond reasonable doubt –

Your Honours, he is talking there about the ultimate issue before the jury, not the primary or intermediate facts upon which the ultimate issue was to be proved.

KIRBY J:   I wonder if that is how the jury would have understood that because he identifies the two circumstances and says they have to be proved beyond reasonable doubt.

MR BARKER:   Yes, but the two circumstances in effect were the murder, the killing:  the presence of the applicant and the violent death of Mr Moore.  But they were the ultimate issues to be considered by the jury; they were not intermediate or primary facts.  He said at page 55, line 5:

Something was said to you yesterday about this very important issue whether it was blood on the boots and a submission was made to you that you could not be satisfied beyond reasonable doubt that there was blood on the boots.  I tell you that you do not have to be satisfied beyond reasonable doubt about that.

I submit that this case is classically within the sort of cases talked about by Justice Deane in Chamberlain 153 CLR 521. If I could take you to that very briefly, his Honour said at the top of page 627:

Whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt will, however, otherwise depend not only on the nature of the fact but on the process by which an individual juryman sees fit to reach his conclusion on the ultimate question of guilt or innocence.  If, for example, the case against an accused is contingent upon each of four matters being proved against him, it is obvious that each of those matters must be proved beyond reasonable doubt.  Indeed, it would be appropriate for the presiding judge to emphasize to the jury in such a case that even a minimal doubt about the existence of each of those matters would be greatly magnified in the combination of all.  On the other hand, if the guilt of an accused would be established by, or a particular inference against an accused could be drawn from, the existence of any one of two hundred different matters, each of which had been proved on the balance of probabilities, it would be absurd to require that a jury should disregard each of them unless . . . proved beyond reasonable doubt.

In my submission, this issue was so important that the jury should have been clearly directed that they must, in order to convict, find beyond reasonable doubt, firstly, that Hore wore the boots and, secondly, that the boots had on them blood from the deceased.

The other ground is this, that Moore was murdered at Silverwater Gaol on 19 March 2000.  There is a photograph in the supplementary bundle.  It is photograph No 61.

HAYNE J:   It is the last sheet in the bundle, I think.

MR BARKER:   Yes.  I have to apologise for the condition of this application.  That shows the corner of “B” block with an awning and Moore’s body was found under that awning.  Mr Chatto was in cell 57, which I think is the third cell along the top.

KIRBY J:   The third or the first?

MR BARKER:   I think it is the third, your Honour.

KIRBY J:   That is to say the one in the sunlight?

MR BARKER:   Yes.  He says that he was sitting on his bed talking to his cellmate, McIvor, and he heard some noises and looked out and saw two men walking from the awning.  He did not directly identify them but he gave evidence from which identity could be inferred.  He went to the scene and found the body.  It was put to him that he had made up the story about seeing the two men because he was frightened he would be implicated himself as he was the first one at the scene.  According to him, when he made his statement to the police, which is in the supplementary bundle, and when he gave evidence at the committal, which was exhibit 1 – and that is also in the supplementary bundle – he said that McIvor was with him all the time in the cell and they even talked about the noise they had heard.  I have given a list of places that ‑ ‑ ‑

KIRBY J:   He later withdrew the statement that Mr McIvor was ‑ ‑ ‑

MR BARKER:   He later withdrew it in a conference with the Crown and said that it was not true, and McIvor did the same thing.  When it came to the trial, his Honour heard evidence on the voir dire and he firstly said – I am running ahead of myself a bit.  At page 2 of the application book you will see where defence counsel at line 45 asked about ‑ ‑ ‑

KIRBY J:   The time has expired but we will allow you to develop this point.  It seems to have expired.  Maybe I was valuing so much your submissions, Mr Barker, I did not notice it had expired but ‑ ‑ ‑

MR BARKER:   I am grateful for that compliment, your Honour, but ‑ ‑ ‑

KIRBY J:   I do want you to develop the 128 point.

MR BARKER:   I am indebted to you.  At line 45 on page 2 Mr Spencer said:

I anticipate the only way that detail is going to be available to the defence is by him being granted a certificate under section 128 of the Evidence Act and then him being questioned about the lies he told.  Not only did he lie in the committal, he perjured himself in relation to this one aspect.

Then it went to a voir dire and at page 9 ‑ ‑ ‑

KIRBY J:   Would you just stand back from the evidence.  We are generally familiar with the evidence, but just tell us what you say is the special leave point in the granting of the certificate.  Given that it is a discretionary and trial matter, why would this Court get involved in it?

MR BARKER: The point is this. Section 128(5) requires a certificate if the justice of the situation demands it. That is a paraphrase. Here his Honour said at the conclusion of the voir dire that he was not inclined to grant this man a certificate but he would not require him to answer questions and, if he answered them, he did so at his peril. When it came to the jury trial – and his evidence is in the supplementary bundle – he said to Chatto, “You needn’t answer any question if the answer may tend to incriminate you in the commission of an offence. If you do give any such answer, the court will give you a certificate”. So Chatto had the best of all worlds. He could answer questions at his discretion; if he did incriminate himself, he could be given a certificate.

The problem for defence counsel was that they could not sensibly cross‑examine him about why he perjured himself, about why he attempted

to pervert the course of justice, because he simply said, “I refuse to answer that question. I refuse to answer that question”. In my submission, it was quite wrong to deny defence counsel the opportunity of a proper cross‑examination when all that was required for the protection of a witness was a certificate under section 128. The justice of the situation was not relevantly directed to the position of the witness; it was directed to the proper disposition of a fair trial. That, we say, was denied the applicant because his Honour’s discretion miscarried.

HAYNE J:   So it was not open to the trial judge to conclude that in the circumstances of a gaol‑house killing that giving a certificate to one of the prisoners who had seen it was not the appropriate path to take?

MR BARKER:   Precisely.  It was not open because bear in mind, your Honour, please that this was critical to the conviction, his evidence, it was absolutely crucial, the identification of Hore, and here we have the man who identified him saying, “I was there with my mate, McIvor, and we heard this noise and we talked about it and then ‑ ‑ ‑

HAYNE J:   Were all Chatto’s prior inconsistents put to him?

MR BARKER:   Yes, they were.

HAYNE J:   So the jury had before it, what, three versions of events from Chatto?

MR BARKER:   Yes, it did but it did not have before it his reaction to questions which would have been directed to those very issues.  The Court is not entitled to predict where the evidence would have gone if he had been cross‑examined and forced to answer questions.  He may have retracted his story again.  He may have done another 180 degree turn.  This was a very, very important bit of evidence.

KIRBY J:   I think we have got the point that you are trying to mount.  Yes, Mr Smith.

MR SMITH:   If the Court pleases.  On this 128 point, if I might start on that first, what my friend is saying, we submit, is pure speculation of what might have happened.  The fact is that, as the Court of Criminal Appeal ‑ ‑ ‑

KIRBY J:   Do I understand that the trial judge changed his mind in relation to what he would permit Mr Chatto to say with impunity?  Did he alter his ruling from the first ruling to the conduct of the trial?

MR SMITH:   On the first ruling he said to Mr Chatto, “I’ve given the certificate”, so that he could explain why he wanted to take the objection because he had to be satisfied that it was a reasonable claim.  But once he was satisfied that his claim was reasonable, he thereafter allowed him on the voir dire to take the objection.  That did not stop all the material that proved an inconsistency going before – being cross‑examined on in that voir dire and it did not stop it happening in the trial as well.  So that normally where you have a witness who, for example, gives a different version of events, they may be cross‑examined either by the Crown under section 130 and section 38 of the Evidence Act if leave is granted or by the defence, and so the prior inconsistent statement comes before the jury.  That is the evidence that can be looked at by the jury to decide on credibility questions.

HAYNE J:   Let me just understand precisely what happened in this trial.  Chatto gives evidence at trial, his evidence given at trial to the effect that Chatto has given two other and inconsistent versions of events?

MR SMITH:   Evidence is led of that.  He has agreed that he made a statement to the police but at that ‑ ‑ ‑

HAYNE J:   The jury had before them the fact that Chatto has given three, the defence would say, radically different accounts?

MR SMITH:   Yes, that is the statement, the committal evidence, which was a detailed cross‑examination ‑ ‑ ‑

HAYNE J:   Is the consequence of the refusal to grant a certificate that cross‑examining counsel for the defendants could not ask, “Why did you change your mind?”?

MR SMITH:   With respect, your Honour, they would not be stopped from asking that question but they would not get an answer.

HAYNE J:   Yes.

MR SMITH:   That in itself damages his credibility and we would submit that throughout the cross‑examination it has become clear that he had co‑operated with the police to get an advantage, apparently an advantage for his cellmate, to get him ‑ ‑ ‑

KIRBY J:   That was his statement, that he wanted to help Mr McIvor on parole, I think.

MR SMITH:   Mr McIvor and all that, so that was before the court.  His Honour raised the issues with the jury as to what issues were raised by Chatto.  At page 325 of the application book, paragraph 216, his Honour told the jury that the issues seemed to be these raised by Chatto’s evidence:

(i)whether because of his change in what he was prepared to say about the events, the presence of McIvor, was such as to make his evidence altogether unacceptable;

(ii)whether he thought he was a suspect and therefore had a motive to try and divert suspicion from himself by proving that he was somewhere eg, in his cell and seeing people walking away from the place where he then thought that the killing had taken place;

(iii)whether Chatto hoped to obtain a benefit in making a statement to the police and giving evidence.  Chatto admitted, frankly, that this was so.

So that was what they had before them.

The Court of Criminal Appeal said at paragraph 218 – and we submit that this was a proper finding:

In view of the way in which the judge treated the evidence of Chatto and the extensive directions which he gave as to it, particularly as it related to McIvor, the appellants could not have been better off if the judge had required Chatto to answer the questions of trial counsel for each of the appellants.  The effect of what the judge told the jury was that Chatto had not told the truth in his statement and had lied on his oath to the magistrate.  The judge correctly posed the correct questions for the jury’s consideration and correctly emphasised that the jury had to decide whether in view of the lies about McIvor they could accept the remainder of Chatto’s evidence.

When the judge exercised his discretion under s 128(5) of the Evidence Act 1995 he would have had in mind how he proposed to leave the matter to the jury.

We submit that when one looks at section 128, it does not give the accused a right to have a witness just brought before the court and given a certificate so that he can be cross‑examined about all sorts of things that help the defence case, particularly here where we have speculation put forward of what might have happened.

The jury saw what has happened.  His credibility was undoubtedly reduced by his change of stance.  What the jury had before them was other material, the blood material and/or DNA material, and other witnesses who gave evidence consistent with the appearance of the applicant as being one of the wrongdoers in this case as well as the finding of the boots.

HAYNE J:   What is the offence which is said to engage 128(5), the offence of perjury?

MR SMITH:   Perjury at least, his Honour said.  It might have been other matters in relation to public justice offences as well, but certainly not involvement in the murder.

HAYNE J:   Just so.  It is offences concerning the truth of his evidence.

MR SMITH:   Yes.  We submit if he was an alleged accomplice, as I think in Collisson, one of the cases that my learned friend has referred to in his list, and just refused to answer at all and never gave a version, never undertook a Basha inquiry so that his version could be obtained by both sides, and so he did not know what he was going to say, even though the accused in that case was saying he was the actual shooter, I think it was, that is a different case to this where he is not alleged to be part of the murder as ‑ ‑ ‑

HAYNE J:   A possible point of view is that the issue that would be sought to be agitated if a certificate was given was at best an issue going to the credit of the witness, certainly not immediately concerning the facts and circumstances of the alleged offence against the accused men.

MR SMITH:   That is right.

KIRBY J:   What do you say about the first point, that is to say the direction which the judge gave at 55, “I tell you that you do not have to be satisfied beyond reasonable doubt about that”?

MR SMITH:   We submit this is not a link in the chain situation, that the two aspects that his Honour did tell the jury about, that my friend said were the actual facts in issue are not in fact.  In fact there is no doubt there had to be a finding that the accused was one of the people involved in this situation where you just have the finding of a dead body and all that, and that undoubtedly was an essential factor, that he was part of a joint criminal enterprise to kill Mr Moore.

KIRBY J:   So the point of distinction you make is between the judges saying they had to be satisfied beyond reasonable doubt that he took part in the attack and the direction as to the specific evidence concerning the boots and the DNA?

MR SMITH:   Yes.

KIRBY J:   You say the one has to be the subject of the direction but that a direction that they do not have to be satisfied beyond reasonable doubt on the particular ingredient of evidence is compatible with the law?

MR SMITH:   And one of the factors supporting that ‑ ‑ ‑

KIRBY J:   The argument against that is that so powerful in the jury’s mind is likely to be the evidence of the DNA as bearing upon his taking part in the attack.  There was some evidence that the deceased had been kicked, I think, or certainly the DNA and the splatter of blood on the boot would be consistent with that.  The question is whether or not that is of the kind that should engage the attention of this Court, given the power of DNA evidence as an intermediate but tremendously important evidentiary step in the reasoning that is required.

MR SMITH:   With respect, your Honour, there is no doubt it was an important piece of evidence and linked with the finding of the boots in the cell.

HAYNE J:   And what was said in evidence about two men being seen entering with the deceased.

MR SMITH:   Yes, but that was of course separate evidence not reliant on the blood or DNA evidence.  Chatto – admittedly, there were lots of warnings.  That was Chatto.  There was also a man called Bond who gave some evidence that supported the case and a man with the pseudonym AH who actually saw the deceased and one man going to the area and then two other men going there.  I think Bond was the one that saw them passing what apparently was the rock as they went.  So it is not as if it is the only piece of evidence that incriminated him.  We would submit that they were given considerable warnings as to how to use the material. 

There was evidence given in the defence case, as it were, to try and diminish the importance of the DNA evidence.  Nevertheless, it is not one of those matters, we would submit, that comes within the requirement that it has to be proved beyond reasonable doubt as a specific intermediate fact that there was the deceased’s blood on those boots.  Those are my submissions.

KIRBY J:   Anything in reply, Mr Barker?

MR BARKER:   In my submission, if you take away the boot, there is no proof fit for a jury to consider.  The only evidence otherwise is that someone who might have been Mr Hore, but we cannot tell, is seen in the vicinity.  Chatto saw Mr Hore and Mr Fyffe after the event.

HAYNE J:   That would be a proposition that represents a signal development of Shepherd, would it not, namely, if one of the circumstances going to make a circumstantial case if removed would mean insufficient to go to a jury ‑ ‑ ‑

MR BARKER:   That is my submission, yes, exactly.

HAYNE J:   But that is a marked departure from and addition to the holding of the Court in Shepherd, is it not?

MR BARKER:   Yes, your Honour, indeed.  Thank you, your Honour.

KIRBY J:   We will adjourn shortly to consider this application.

AT 12.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.46 PM:

KIRBY J:   The applicant seeks special leave to appeal from the orders of the Court of Criminal Appeal of New South Wales dismissing his appeal against his conviction of murder.  In oral submissions before the Court today, in elaboration of the written submissions which were placed before the Court, counsel laid emphasis upon the complaint of the grant of a certificate to a prison witness, Mr Chatto, under the Evidence Act 1995 (NSW) section 128 and concerning the reliability of the evidence in relation to boots which were found in the applicant’s cell.

We are not convinced that the applicant enjoys reasonable prospects of success in making good any of the complaints that have been raised in this application.  Nor are we persuaded that the applicant has suffered a miscarriage of justice.  There was evidence linking the applicant to the scene of the murder.  Boots of the applicant’s size were found in his cell containing evidence identified by an expert as consistent with the appearance of blood and reporting DNA compatible with that of the deceased.

The directions of the trial judge were generally careful and not unfavourable to the applicant.  Special leave is accordingly refused.

AT 12.47 PM THE MATTER WAS CONCLUDED