Joiner v The Queen

[2003] HCATrans 278

[2003] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S335 of 2002

B e t w e e n -

PATRICK JOINER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 AUGUST 2003, AT 10.46 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR H.K. DHANJI.  (instructed by Legal Aid Commission of New South Wales)

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

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application raises two questions of general importance.  The first question relates to the admissibility of the tendency evidence in the case and, assuming that the Pfennig test applies to section 101 of the Evidence Act, the question is:  was Justice Hodgson correct to hold that the proper approach to Pfennig is to first determine the strengths of the other prosecution evidence in proof of guilt and then to consider, on the assumption that it was not enough to prove guilt, whether the tendency evidence eliminates any reasonable doubt assumed to have been left.

GLEESON CJ:   I understand it to be submitted against you that if there is an error in Justice Hodgson’s approach, it is an error that is unduly favourable to the accused.

MR ODGERS:   It may be submitted, we say, that the error is to place a gloss on the Pfennig approach, a gloss which is extremely dangerous and a gloss which had the effect that in this case evidence which we say manifestly did not meet the Pfennig test was held to be admissible by the Court of Criminal Appeal.  So it may be contended by the Crown that it was favourable, but we say properly analysed, in principle it is extraordinarily dangerous and in this case it was applied in a way which showed that danger.

GLEESON CJ:   When you say “applied”, it was not the way the trial judge put it, was it?

MR ODGERS:   No, of course, the trial judge ‑ ‑ ‑

GLEESON CJ:   Our principal concern is the way the trial judge admitted this evidence and then directed the jury about it.

MR ODGERS:   I understand that and it is a difficult position for the applicant because, in respect of the question of admissibility, the trial judge applied on the face of it the Pfennig test and we say misapplied it.  The Court of Criminal Appeal adopted a different approach and held that the evidence was admissible and then in respect of directions, the trial judge, we say, failed to give necessary directions.  The Court of Criminal Appeal said there was force in our contention but then said they were not necessary by a process of reasoning which had not really been advanced either by the trial judge or to the jury.  So there is a great deal of difference between the way the trial judge approached it and the way the Court of Criminal Appeal approached it.

GLEESON CJ:   There are really two questions, are there not?  There is the question of whether the evidence was admissible; and then there is the question of what the jury should have been told as to how they could use it.

MR ODGERS:   That was going to be my second question of general importance.

GLEESON CJ:   Yes, but as far as the first question is concerned on the admissibility, I understand the prosecution to say the trial judge applied the right test and when it came to the Court of Criminal Appeal, Justice Hodgson applied a test more favourable to the accused in upholding the position of the trial judge.

MR ODGERS:   That is the contention, your Honour.  We say that that is just plainly wrong.  The second question of general importance, we say, is whether it is permissible to invite a jury to reason as follows.  The accused assaulted other people, he had a tendency to intend the harm that he actually caused in those assaults.  Thus, one can infer that he intended the harm he actually caused the victim.

GLEESON CJ:   When you say he assaulted other people, would it be too much of an oversimplification to say the argument was that he was a wife basher?

MR ODGERS:   That is pretty close to – the totality of the evidence was that he was a person who bashed his wife and partner.

CALLINAN J:   And hardly challenged by him either.

MR ODGERS:   I think that is fair to say, yes, your Honour, but of course the critical issue between manslaughter and murder is that manslaughter - if you intend harm or you act in a dangerous and unlawful way, you are guilty of manslaughter.  To be guilty of murder, there has to be that intention to kill or an intention to cause grievous bodily harm, and it is in respect of murder that the whole complaint of the applicant turns.  His complaint is that evidence of prior assaults which did not result in the infliction of grievous bodily harm was admitted to prove an intention to inflict grievous bodily harm on his wife. 

We say that it is inconceivable that, properly analysed, that evidence could satisfy the Pfennig test.  We say that his Honour in the Court of Criminal Appeal put a gloss on the test which resulted in him concluding that it was admissible and we say that demonstrates the danger with the gloss.  We also say that in terms of the directions to the jury, the Crown was relying on an inference that he must have intended to inflict grievous bodily harm on those other women, even though he did not inflict it.

GLEESON CJ:   Just remind us; what was the defence case?

MR ODGERS:   The defence case was that the accused and his wife had an argument in a remote location, that she grabbed him, he spun around, he accidentally – his hand with a ring came into contact with her face, she punched him, he punched back, she pushed him, he pushed her – I am oversimplifying it – and in the push she fell backwards and hit her head and then had a fit and died. 

GLEESON CJ:   So in the course of defending himself against her, he pushed her to the ground and she accidentally hit her head and was killed.

MR ODGERS:   Yes, he conceded that he did strike her a number of times deliberately, but he put it in the context of her doing things him.  Whether that was self-defence - I do not think self-defence was actually raised, but the first defence case in respect of manslaughter was obviously that he did not intend to cause harm.  But, given that there was good reason to believe that the acts satisfied that element, the essence of the defence case was that he certainly did not intend to cause grievous bodily harm.

CALLINAN J:  

Mr Odgers, was it not the case in each of the other three instances that somebody else intervened and interrupted, is that not right?

MR ODGERS:   No, with respect, your Honour, no.  The evidence is summarised at pages 10-12 of the application book.  I just went through that last night and my reading of that summary is that there were about ten separate incidents involving assault and, on my reading, in three of them there was an intervention.  In respect of those three, the Crown’s argument was that he did intend to cause grievous bodily harm but that the intervention prevented him from carrying it out.

CALLINAN J:   I am just looking at page 10, line 41:

There was another incident . . . when the accused pushed Miss Speedy onto a golf cart, yelling at her and trying to strangle her.

MR ODGERS:   Yes, but it did seem that there were other incidents where there was not an intervention, where he grabbed her around the throat.

CALLINAN J:   No, but I mean, if you are trying to strangle somebody, you do not have an intention to do other than causing grievous bodily harm.

MR ODGERS:   With respect, your Honour, there is an alternative which is that you are not trying to kill them ‑ ‑ ‑

CALLINAN J:   You do not strangle them too hard?

MR ODGERS:   Yes, your Honour, I do put that to you.  I mean, you can put your hands around somebody’s throat without any intention to kill them ‑ ‑ ‑

CALLINAN J:   As a gesture of affection?

MR ODGERS:   No, your Honour, no, but there is an intermediate position which is that you are angry, you want to convey your anger, you are using force, but you certainly have no intention that it is going to result in unconsciousness or anything like that.

GLEESON CJ:   What about three lines down? 

The accused became very angry and started tearing down the tent.  He dragged her outside and jumped on her, pushed her face in the dirt, and pulled her hair. Two strangers intervened, and told him to stop.

She went to the police.

MR ODGERS:   Yes, that is the second of the incidents where there was an intervention.

GLEESON CJ:   He certainly deals firmly with people.

MR ODGERS:   Absolutely, your Honour.  Your Honours, there are numerous what you might call wife-bashing incidents, assaults, but in none of them do they result in the infliction of grievous bodily harm.  In three of them there are interventions, but in the others he does similar things which result in cuts, bruises, injuries, but no more.  None of those could be fairly characterised as the infliction of grievous bodily harm.

So there is at the very least a drawing of an inference that because of the intervention he was prevented from doing more.  But there is an alternative scenario, which is that he is assaulting, he is intending to inflict harm, but he is not intending to inflict grievous bodily harm.  At the very least, the second complaint we made was that the jury should have been told that the Crown’s contention that he did intend to inflict grievous bodily harm ‑ and that contention was a contention which was advanced in respect of all of these incidents, might I add – the jury should have been told, “Well, you have to consider that and consider whether you are satisfied that that was his intention before you use that intention to draw an inference that he had the same intention in respect of his wife.”

Your Honours, I pointed out to the Court of Criminal Appeal – and the court accepted the force of it – that it was not even put to him in cross‑examination that he had intended to cause grievous bodily harm to any of these women.  It was not even put to him, and yet the Court of Criminal Appeal says, “There’s force in that, but it wasn’t necessary to do so because the reasoning that the jury were invited to engage in was rather different.  It wasn’t that he intended to cause grievous bodily harm to these women.  Rather, the reasoning was he intended to cause the harm he actually caused and, therefore, he intended to cause the harm he actually caused to the victim”. 

Now, your Honours, that is just anathema in the criminal justice system, that that kind of reasoning can be held by the Court of Criminal Appeal of New South Wales to be acceptable reasoning:  “Because he has intended the consequences of other acts, therefore we can infer that he intended the consequences of these acts.”  Yet this case stands as authority for that proposition and will remain as such if special leave is not granted.

Your Honours, we submit that there was, at the very least, a real question as to whether or not he intended to inflict grievous bodily harm on these other women.  But let it be assumed that ‑ ‑ ‑

CALLINAN J:   What about Miss Jennings:

her lip, mouth and gums had been cut and her teeth were pushed in.

She had to be treated at a hospital, page 12.  Is that grievous bodily harm?

MR ODGERS:   I would have submitted not, your Honour.  I would have submitted ‑ ‑ ‑

GLEESON CJ:   Really serious injury; that is the test, is it not, for grievous bodily harm?

MR ODGERS:   Yes, really serious injury.

CALLINAN J:   If you get your teeth pushed in, you would regard it as fairly serious, would you not?

MR ODGERS:   We do not know what that meant.

CALLINAN J:   Her gums, lip and mouth had all been cut.

MR ODGERS:   But, in any event, your Honours, in respect of some of these incidents there is no doubt that there was not an infliction of grievous bodily harm in respect of some of them.  In respect of some of those, one can reasonably conclude that there was not an intention to inflict grievous bodily harm.  So one has a situation – let it be assumed that your Honours are against me on the proposition that in none of these was grievous bodily harm inflicted.  Let us assume some of them were.  Is there a pattern here of intentionally inflicting grievous bodily harm or are there some incidents where he has done it and some incidents where he has not?  If that is right, how can one say that there is no rational view of what happened to the victim other than that he had an intention to inflict grievous bodily harm on her?

The result of the analysis that your Honours appear to be indicating would be a situation in which where he has done something on some occasions what might be 15 years before, done a different thing on other occasions in the past in respect of other women in other circumstances, that there is no rational view of what happened in respect of the victim other than that he had an intention to inflict grievous bodily harm.  We say that manifestly there was an alternative rational view.  The rational view was that on this particular occasion, he only had an intention to inflict actual bodily harm, less than grievous bodily harm.

If I could take your Honours to the approach that Justice Hodgson adopted in the Court of Criminal Appeal at page 158.  The question of general importance is whether this approach is the correct approach to Pfennig because if special leave is refused in this case, this will be regarded as the proper approach.  The Crown says it is more favourable to the defendant.  With respect, that is just simply wrong.  It is less favourable and it is less favourable in this type of case.  It is less favourable in a case where there is substantial other evidence of guilt. 

What Justice Hodgson is saying is that first you look at all the other prosecution evidence and you see how strong that is.  If you think that it is very, very close to proof beyond reasonable doubt, then you the trial judge will let in the highly dangerous, highly prejudicial tendency evidence if it just gets you over line, if it removes that last lingering doubt.  Indeed, it requires a judges who takes the view that the other evidence proves guilt beyond reasonable doubt to work on the assumption that it does not before he then considers whether or not the tendency evidence which is highly prejudicial should be allowed in.

GLEESON CJ:   What do you say the relevant passage in Pfennig means?

MR ODGERS:   That a court looks at the tendency evidence in context but makes a decision whether the rational view of that evidence in context is consistent with innocence.  That is what it means; that is what it says and that is what it means.  So you do not put the gloss ‑ ‑ ‑

GLEESON CJ:   What does “consistent with innocence” mean in that context?

MR ODGERS:   A rational view that he is not guilty.  So that, for example, applying it to the facts of this case, the question is:  did he intend to inflict grievous bodily harm on his ‑ ‑ ‑

GLEESON CJ:   Do you mean by that, if the tendency evidence stood alone, ought he to have been acquitted because there must be a reasonable doubt?

MR ODGERS:   Yes, but ‑ ‑ ‑

GLEESON CJ:   But the tendency evidence never stands alone, does it?

MR ODGERS:   No, but you look at it in the context of all the other evidence because the other evidence will shed light on the significance of the tendency evidence.

GLEESON CJ:   Or the tendency evidence will shed light on the significance of the other evidence.

MR ODGERS:   It may, but the test is not concerned with that.

CALLINAN J:   Tendency evidence is circumstantial evidence, is it not?

MR ODGERS:   Yes, but it is a special type of circumstantial evidence.

CALLINAN J:   Yes, but no single piece of circumstantial evidence ever is completely probative of the ultimate fact.

MR ODGERS:   Of course not, your Honour, but the flaw that Justice Hodgson made – and, with respect, a flaw that your Honour is in danger of making – is to assume that because when a jury is considering circumstantial evidence it looks at the totality of it, that the same approach is appropriate in respect of the admissibility of tendency evidence.  What the High Court did in Pfennig was to say, “Look, we’ll take that test and we’ll apply it to this kind of evidence because it’s so dangerous.”

CALLINAN J:   But you are really saying, are you not, that you can only admit this evidence of the assaults on other occasions if you can be satisfied beyond reasonable doubt in respect of each and every one of them that he had the intention of at least inflicting grievous bodily harm?  Is that not what you are really saying?

MR ODGERS:   No, I am saying you can only admit it if the tendency evidence as a whole leaves no rational alternative other than that he intended to inflict grievous bodily harm on the victim.  Now, it may be that there is some process of reasoning that does not require a conclusion that he intended to inflict grievous bodily harm on the other women.  Indeed, Justice Hodgson thought there was and I submit to your Honours that that is just manifestly nonsensical.

Can I give you an example, your Honours, the decision in Hoch.  In Hoch the test was applied:  was there a rational evidence inconsistent with guilty?  There was no consideration by the High Court of any of the other prosecution evidence in that case, none at all.  The question was:  was there a rational view, ie, a possibility of joint concoction?  If a reasonable possibility, if so, it is out.  Now, no suggestion that you look at the other evidence in the case or that you look at the tendency evidence in the context of that other evidence in the way that Justice Hodgson suggests.  If there is a rational view of it consistent with joint concoction, then there is a rational view consistent with innocence, it is out. 

Now, that is a very demanding test; it was intended to be.  Justice Hodgson has advanced the test here, which is now the law in New South Wales, which completely guts the Pfennig test because what it says is if it is an otherwise very strong case, then it will almost invariably be the case that a judge concludes that the tendency evidence is sufficiently probative to be admissible because it will get it over the line.  Only in cases where there is very little other evidence will the Hodgson test, if I might call it that, produce the same result as the Pfennig test properly analysed because in those cases the evidence will, pretty much on its own, have to establish proof beyond reasonable doubt in the mind of the judge.

Your Honours, there really are two complaints here.  Even if your Honours took the view that it was open to the jury to think that he did have an intention to inflict grievous bodily harm on some of the other women – and I have contended that that was not true – it certainly was not true in all these incidents.  At the very least, given the jury were being invited to reason on the basis of that, they needed to be told that they had to be satisfied that he had that intention and they needed to be told to bear in mind that it had not even been put to him that he had had that intention, so he had not even had the opportunity to respond to that.  What I mean by that, he had not been cross‑examined about it. 

When the Crown stands up and says to the jury, “Oh well, ladies and gentlemen” – this is 117, your Honours, you will see the argument in its concise form, line 10.  The defence counsel said:

none of these women suffered injuries that would amount to grievous bodily harm.

Then:

You will recall, on the other hand, that the Crown put to you that in almost every case –

well, I have suggested to your Honours in three cases  ‑ ‑ ‑

CALLINAN J:   But “every case of the more serious”.  It is qualified, Mr Odgers; it is not every case at all.

MR ODGERS:   I am sorry, your Honour, I accept that -

there had been intervention by another person ‑ ‑ ‑

CALLINAN J:   Indeed, there are some cases – and we have already referred to them – in which the assaults were very, very serious indeed.  On one occasion the woman was rendered unconscious.

MR ODGERS:   Yes, your Honour, but nonetheless the jury is being asked to infer at line 45 that because “there was no male person around to stop the assault going further in relation to the deceased”, that he did have the intention to inflict grievous bodily harm on this occasion because he had manifested it on those other occasions.  No direction that they had to be satisfied to any standard of proof that he had had that intention in respect of the other women on any of these other occasions when the defence counsel is plainly contending otherwise.  It is plainly an issue. 

Even if your Honours yourselves think that it is a reasonable inference, at the very least, when the defence counsel did ask the judge to warn the jury that they should not too easily jump to the conclusion – and the directions that are given are those at 117 and 118.  The Court of Criminal Appeal says there is force in it and then gives what I submit is the absurd explanation that is given.  Thank you, your Honours.

GLEESON CJ:   We do not need to hear you, Mr Smith.

Having regard to the facts of this case, no error has been shown in the decision of the trial judge to admit the tendency evidence or in his

directions to the jury as to the approach to be taken to that evidence.  That being so, the case is not a suitable vehicle for consideration or reconsideration of the principles discussed in Pfennig v The Queen and there are insufficient prospects of success of an appeal to warrant a grant of special leave.

The application is refused.

AT 11.09 AM THE MATTER WAS CONCLUDED