Kaliyanda v The Queen

[2008] HCATrans 268

[2008] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S187 of 2008

B e t w e e n -

MADAPPA KALIYANDA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 10.02 AM

Copyright in the High Court of Australia

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

MR D.C. FREARSON, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Barker.

MR BARKER:   Your Honours, in the special leave to appeal of the applicant the Court of Criminal Appeal mistook suspicion for proof beyond reasonable doubt.  There are too many loose ends in the evidence, we submit, for this conviction to stand.  I will take your Honours as briefly as I can to the evidence.  The Court of Criminal Appeal erred, we submit, in not applying the test required by M v The Queen (1994) 181 CLR 487. The court’s finding, having reviewed the evidence, was limited to a finding that was open to the jury to convict and your Honours will find that at application book page 83 line 20.

HEYDON J:   Mr Barker, the chief judge at common law stated the test on page 76 paragraph 71 from M v The Queen that you refer to.  You argue, in substance, he did not comply with that test?

MR BARKER:   Yes, your Honour.  We submit that M requires that, whilst the ultimate question must be whether the court thinks that upon the whole of the evidence was open for the jury to be satisfied beyond reasonable doubt the accused was guilty, the court must consider whether it has a doubt and whether the court’s doubt can be resolved by the jury’s advantage in seeing and hearing the evidence.

KIRBY J:   There is some support for you in a way in what the court has been saying recently in Weiss and other cases about the proviso that a lot of the old formulations were that you use as the evidence at the trial to say whether or not a jury would have done this or a jury would have done that, whereas the court in Weiss said for proviso purposes that is not the question.  The question is whether the appellant court with its responsibility under the Criminal Appeal Act considers it unsafe and therefore you have this going for you that, in terms of the formulation, the court has already, as it were, accepted that principle.

MR BARKER:   Yes, that is what we submit should apply here.  It was a circumstantial case, but the circumstances were not inconsistent with a reasonable hypothesis other than guilt. 

KIRBY J:   It was a pretty strong circumstantial case, Mr Barker.

MR BARKER:   Well, I am trying to convince your Honour to the contrary.

KIRBY J:   Well, go for it.

MR BARKER:   Firstly, there is no evidence by which the jury could assign a cause of death.  The deceased was found dead in her flat at Liverpool on 9 September 1997.

KIRBY J:   Carefully wrapped in two plastic bags which were not otherwise found in the flat.

MR BARKER:   Exactly.  There is no evidence that was the product of something done by the applicant.

KIRBY J:   Output at the door to stop the odour coming out.

MR BARKER:   Yes, all that is conceded.  But there is no evidence of any relationship between the applicant and the deceased, there was no evidence of any forced entry.

KIRBY J:   Not neighbours.

MR BARKER:   There was no evidence that, indeed, the deceased died where she was found.  There was no evidence of any forced entry, no evidence of any search or ransacking.  No evidence that robbery was a motive because she wore jewellery and she had jewellery in the flat and that was still there when the police saw her.  No evidence of fingerprints or DNA, no admissions by the appellant.  A listening device in the appellant’s home yielded nothing of any relevance and the Crown has really relied almost wholly on the assertion that the applicant used the deceased’s credit card to withdraw money from her account and sold a camera belonging to the deceased.

KIRBY J:   And the photos that were taken of the person who presented with the card and photos of and the appearance of the applicant.

MR BARKER:   But that was thrown into doubt by evidence of a Constable Pretty who said he thought the photo was of another person.

KIRBY J:   Do we have those photos?  Are they in court or available to us?

MR BARKER:   No, unless the Crown has them.  His Honour Justice McClellan said that there was a striking resemblance, I concede that, but, of course, we must not lose sight of the proposition that even if the appellant had her card, it does not go to prove murder.  There is no evidence at all about when he might have acquired it unless he was there.  But the problem is, of course, that there is absolutely no evidence of how he knew or might have learnt of the deceased’s personal identification number.  Now, in that regard, can I take you to application book page 58 where his Honour said without apparent criticism at line 40:

The Crown alleged that the appellant then took the deceased’s Commonwealth Bank mastercard and debit card from her unit and at 4.04 am attempted to use it to obtain money from an automatic teller machine (“ATM”) at the Commonwealth Bank branch at Liverpool.  The card was rejected.  Another attempt was made at 4.05 am and the card was again rejected.  The Crown alleged that the appellant then returned to the deceased’s flat, obtained access to her personal identification number (“PIN”) and at 4.33 am returned to the same Commonwealth Bank –

Well, there is absolutely no evidence of that, your Honour.  There is a reference to it in an anonymous letter which is not shown to have been written by the accused, and I will come to that, but it seems to be asserted that the applicant, having killed the deceased, left the flat with her credit card, found to his surprise that he could not successfully use it without knowing the PIN number, returned to the flat, re‑entered without using any force, found the PIN number and returned to the automatic teller machine.

KIRBY J:   But it is compelling, is it not, that within four hours of the presumed death of the deceased the cards were being used and successfully.  So that rather suggests that that was the motive for the death.  I mean, jewellery is difficult to unburden, but credit cards and cash is not. 

MR BARKER:   Yes, but that carries with it the assumption that whoever had the card also had the PIN number and ‑ ‑ ‑

KIRBY J:   Well, obviously they must have.

MR BARKER:   I mean, if they were well known to each other and had some sort of relationship, one perhaps could understand it, but the evidence is that he met her once, and his wife attended prayer meetings with the deceased, but there is no evidence at all of any close or other relationship at all.

KIRBY J:   But they were neighbours.  They were living in the same street?

MR BARKER:   Yes. 

KIRBY J:   It is the combination of the use of the credit card within four hours, plus the presiding judge in the Court of Criminal Appeal saying that there was a striking similarity between the user and the applicant.

MR BARKER:   Yes, your Honour, but it might denote a robbery.  It might denote a robbery of somebody else.  It might denote ‑ ‑ ‑

KIRBY J:   That is not what your client said at trial.  He just denied it completely and gave completely absurd suggestions to explain why the – somebody was following him around.

MR BARKER:   Well, that ought not be held against him, the fact that he did not give evidence, your Honour.  Your Honour is referring to the record of interview.  But it really comes down to this, that the Crown says use of the credit card, drawing money from poker machines and possession of a camera and a photograph which is in dispute amount to proof of murder and we submit that cannot be so.  As to the use of the credit card, the Crown says, well, what he did was in fact launder this money by drawing from the automatic teller machines in various clubs and putting the money through poker machines. 

The first problem about that is that whoever used the credit card drew $13,020 and what was obtained from poker machines was $7,500.  So 40 per cent of the money obtained from the machines was not used in the way the Crown contended it was to be used.  There is a schedule attached to the judgment and what it shows in the December column ‑ ‑ ‑

KIRBY J:   Where is this?

MR BARKER:   Sorry, it is page 88, your Honours.  In the centre column it shows money drawn from the automatic teller machines and in the right‑hand column it shows money from poker machines.  The total of those two columns does not bear out the contention that his intention was to obtain the money and conceal it as quickly as he could.  The evidence is that these clubs have thousands and thousands of members and thousands of visitors and, in my submission, simply looking at money drawn from the automatic teller machines, even the ones in the clubs, and looking across at money proved to have been taken from poker machines by the accused does not make allowance for the fact that there is no evidence the police tried the same exercise with any other poker machine player. 

So there is no evidence that they have excluded the possibility that someone, other than the applicant, used the deceased’s card.  Although there is some correspondence between money obtained from the bank and money obtained from the poker machines, it is not consistent and I submit, with respect, that it does not do what the Crown says it does.

KIRBY J:   What should we make about the camera, the fact that he did not know that they could track and trace the camera to the deceased?  Then he says that he bought it from a Fijian in a pub.  I mean, it is all another instance of his telling lies and very unconvincing lies.

MR BARKER:   If he stole the deceased’s camera, it is surprising that when he sold it he gave his correct name and address, produced ‑ ‑ ‑

KIRBY J:   Not really.  The Crown says in answer to your submission to that effect that that was because it never occurred to him that a camera could be tracked to the deceased, that that could be done by the guarantee and other documents in her apartment.

MR BARKER:   If he stole it, he must have been alive to the problem that it might be found in his possession and might be found that it had come from him, but the evidence suggests there was no such awareness.  He gave his name and address, he produced his driver’s licence, he produced his Medicare card.  In any event, if I may put it rhetorically, why bother taking a camera when the woman was wearing jewellery and there were boxes of jewellery in an adjoining room?  If the motive for all this was robbery, then it was a curiously muted form of robbery.

KIRBY J:   Somebody undoubtedly (a) killed the deceased and (b) stole her camera, but (c) did not steal the jewels, so the unusual does happen.

MR BARKER:   Well, he says, as your Honour points out, he bought it in a pub.  Well, cameras are sometimes sold in pubs, I suppose.

KIRBY J:   That is true, but what a remarkable coincidence that it just happened to be the deceased’s camera.

MR BARKER:   Coincidences bedevil criminal law, your Honour.  They are as consistent with innocence as with guilt usually.  In my respectful submission, your Honour is reading too much into it all to suggest that this points unerringly to guilt.

KIRBY J:   Mr Barker, the point that interests me in the case is the point you began with and that is to say whether the Court of Criminal Appeal did not apply the correct test, whether it asked what the jury would have done as distinct from asking itself what it did.  Now, is there any other answer you can give to the question Justice Heydon asked, because that is a matter of general importance for criminal appeals in Australia?  If the Court of Criminal Appeal did address the wrong question, then that is a matter of general legal significance.

MR BARKER:   Whatever the earlier discussion, the court’s decision is to be found under the heading “Conclusion” on page 83 at paragraph 91:

Notwithstanding that these matters have been left unexplained, having reviewed the whole of the evidence I am satisfied that it was open to the jury to convict the appellant of murder.

He did not say and does not suggest that he considered whether he should have a doubt, whether the court as a whole should have a doubt.

GUMMOW J:   No, but paragraph 72, for example, sets out an earlier decision of the same judge, I think, which goes through the authorities which lay out the position.

MR BARKER:   Well, yes, it lays out the position in an academic way without bringing it to bear upon the problem if confronting his Honour in coming to a determination of the appeal.

HEYDON J:   Mr Barker, my problem is that in paragraphs 76 to 87 the judge deals with the evidence in a way that he indicates that he personally thinks it is telling and sometimes he actually uses expressions like “I am satisfied”.  When he gets to paragraphs 88 to 90 he deals with other matters which would favour your client.  It just seems to me that in substance he is in fact asking himself whether he has a doubt or whether he would regard himself as satisfied beyond a reasonable doubt and that leads him into the repetition in 91 of the formula he set up earlier on from M v The Queen.

MR BARKER:   In my respectful submission, your Honour, under the heading “Conclusion” he should spell it out in a matter as serious as this.

HEYDON J:   What should he have said?

MR BARKER:   He should have said if that is the case that, “I have considered whether I have a doubt.  I have considered whether the advantage the jury may have had in seeing the evidence and hearing the evidence affects that doubt”.

HEYDON J:   What could that be in this case?  Your client, his interview was in evidence, but not on testimony and everything else was circumstantial?

MR BARKER:   I concede that there was very little before the jury that could not be determined by the Court of Criminal Appeal.  But, nonetheless, we are left with the mere assertion that “I am satisfied that it was open to the jury to convict the appellant of murder”.

GUMMOW J:   It has to be read with paragraph 75 too, has it not?  Paragraph 91 has to be read with 75 which opens with the words “To my mind”.

MR BARKER:   Well, I submit, however, that M v The Queen and the recent case of Weiss referred to by Justice Kirby compel a clear explanation from the Court of Criminal Appeal as to the matters required of the court by the judges in M and that has not been done.

KIRBY J:   Mr Barker, assume that you convinced me at least that the phrase used in paragraph 91 is incorrect as a matter of law and that it is at a critical moment in the court’s reasoning where it is coming to its ultimate conclusion, the question that is then presented to us on a special leave application is the reasonable prospects of success of the utility in the case and whether a miscarriage has happened.  Does that not then take us back to what was said earlier as, for example, in paragraph 75, “To my mind the Crown case was compelling”?

MR BARKER:   In my submission, it takes your Honours back to the evidence, not simply a brief description of ‑ ‑ ‑

KIRBY J:   His statement that the case was compelling is the evidence and then you just look at all of those pieces in the evidence which, as in every circumstantial case, is never perfect, but it is said by the Court of Criminal Appeal to be compelling.

MR BARKER:   Yes, I understand that, your Honour.  I see the colour of the light.  But weaknesses in this case were referred to quite graphically by Justice Grove in response to a no case submission, that was material produced a couple of days ago, page 7.  If I can just read it to you.

KIRBY J:   This is this added transcript that was sent in?

MR BARKER:   Yes, your Honour.  His Honour said – this was during the course of the trial – at page 7.

HEYDON J:   Which page?

MR BARKER:   At page 7.  Judgment of 23 February 2007.

HEYDON J:   Yes, has it a typed page number at the bottom of the page?  We have not got any page 7. 

GUMMOW J:   A paragraph number would help.

MR BARKER:   There is a typed page number at the bottom.

GUMMOW J:   What is the paragraph number?

MR BARKER:   Your Honours have been given – unfortunately for me, your Honours have been given a copy which is not quite the same as the one I have.

GUMMOW J:   It has the paragraph numbers, though, has it not? 

HEYDON J:   There is a judgment with paragraph numbers delivered on 23 February 2007 “(Re application for verdict by direction)”.

MR BARKER:   Paragraph 26 is what I had in mind:

I am conscious and I am sure counsel for the accused is conscious that there are numerous other matters that point away from the accused as the person who performed the killing but my present task is to determine whether or not the indictment in effect should be withdrawn from the jury’s determination??.

In spite of these contrary findings, his Honour held that there was in fact a case.  He said at paragraph 31:

I emphasise that in ruling upon this submission, I have ignored, as indeed I am bound to, the very many curious matters which seem to me to indicate to the contrary of the Crown case.

In my respectful submission, a close examination of this evidence ought to leave the court with a reasonable doubt as to the guild of the accused.  If the Court pleases.

GUMMOW J:   Thank you Mr Barker.  Yes, Mr Frearson.

MR FREARSON:   I think the last judgment obviously deals with a verdict by direction which is an entirely different matter, in my submission.  This is not the right vehicle, in any event, to examine M v The Queen because it seems very clear that his Honour did undertake the right task on any view of it looking at the totality of the judgment, in particular, application book 77 line 50 where he cites ‑ ‑ ‑

KIRBY J:   What do you say about the fact that he did not know the deceased, he did not have any apparent reason to kill her, that the only connection was the fact that they were neighbours and the wife had gone to prayer meetings and he had met her once, as to whoever was the killer got the PIN card that allowed them to have access to the funds and questions arise as to whether the appearance is the same as the appearance of the applicant in the photographs?

MR FREARSON:   I simply say in answer to that that it is always necessary just to concentrate on the totality of the circumstances and not to focus on a particular circumstance.  It is true that there are things that are unexplained in the case, but it is necessary to look at what at the end of the day the totality of the circumstances points to and whether that combination is a compelling combination.  I do not say that you cannot look at individual matters which in isolation may tend to point the other way, but it is a question of the united force of the evidence.  If I could continue with what I was saying at 77 at the bottom, what his Honour did is he cited:

The majority in M pointed out that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

Now, his Honour, in my submission, had cited the correct authority.  He has even cited the parts of the judgment in M which refer to the very deficiency that my friend’s pointing to and clearly he had in mind that if there was a perceptible risk that an innocent person has been convicted, his Honour clearly would have acted upon that, because he has focused upon it at the very beginning.  Now, when one looks at what he said thereafter, he said things like, at application book page 79 at 40, “the physical evidence at the scene was compelling”.  He used expressions like that.  At page 80 at 30 that there was no doubt that the jury was entitled to conclude that the applicant ‑ ‑ ‑

KIRBY J:   All of this is correct, but M was written before Weiss and the whole point of Weiss is stop blaming what juries might have done, get rid of the fiction as to what the jury could have done, take the responsibility yourself as an appellate judge.

MR FREARSON:   Your Honour, my submission is that in this case the judge did both; he took the responsibility himself and he also looked at what was reasonably open to the jury,  He did both.  So this is not the right vehicle to examine that particular question is the submission.  At 84 at the top his Honour talked about “powerful evidence of his guilt”, the coincidence of events in relation to the ATM transactions.  At 83, 30 he talked about the possession of the camera significantly pointing to the appellant as the killer.

KIRBY J:   What do you say about Mr Barker’s point that Justice Grove, who was the trial judge and very experienced in these matters, said there are numerous other matters that point away from the accused as the person who performed the killing?

MR FREARSON:   Well, he was simply underlining the fact that in considering a completely different task his Honour is required at that stage, if the evidence is capable of supporting a conviction, he is not looking at the unreasonable question at all ‑ ‑ ‑

KIRBY J:   It is a different task, but if there are matters that point away from the accused as the person who performed the killing in the view of the trial judge who had the advantage of hearing all the evidence, can one not then say that the Court of Appeal should not have found it compelling, but should have found a reasonable doubt?

MR FREARSON:   No, your Honour, because his Honour Justice Grove was performing an entirely different task and he made comments that were referable to that particular task.  Nobody asked him for his view on whether he found the combination of circumstances compelling or what he would have thought about the united force of the circumstances.  He was simply tailoring his remarks to meet the particular test that was required for a not guilty by direction verdict.

KIRBY J:   What motive do you hypothesise – this is a man living in a suburb, living in Australia for some time, in employment, with a family, taking his daughter to coaching, what would his motive be to kill just for a camera and access to the money which was not all that much?

MR FREARSON:   Well, your Honour, I cannot say because unfortunately that is the characteristic of many homicides, that you never get to know the real motive.  If the Crown had to prove motive in homicides, many people would never get convicted of homicides; that is why it is not an essential element.  I cannot ascribe a motive that there is no evidence about.  Clearly, when one looks at the sequence of events of her being missing at 11.30, the cards access four and a half hours later, there is a fleecing of the accounts over the next 13 days or so, when one looks at all of that evidence, the motive clearly is ‑ ‑ ‑

GUMMOW J:   In his sentencing remarks Justice Grove says at page 46 that he was satisfied that it was Mr Barker’s client who used the card, in that collection of circumstances that is detailed there.

MR FREARSON:   Thank you, your Honour.

KIRBY J:   See, ultimately we have to do what we tell the appellate courts to do in Weiss in a case like this.  We have to take our responsibility and Mallard has taught me to be very anxious about a case – about circumstantial evidence, because Mallard was a serious injustice.  We refused special leave and Mr Mallard stayed in prison for 10 years.

MR FREARSON:   Yes, your Honour, there is no doubt about Mallard, but this is not anything like Mallard.  This is a case of a combination of circumstances and it is a case of whether the Court of Criminal Appeal performed the right function.  Now, my essential submission is they performed the right function because when one looks at the totality of the judgment, his Honour has addressed both aspects of it.  He has addressed the question of if the appellate court had a reasonable doubt that the jury should have entertained, he has addressed that specifically and then he has gone on ‑ ‑ ‑

KIRBY J:   You persuaded us that they performed the right function.  Mr Barker then says, well, they may have performed the right function, but they came to the wrong conclusion.

MR FREARSON:   Well, your Honour, that is seeking to a simply cavil with the facts of the case.  On any objective view of it this is a very powerful and, one might say, overwhelming circumstantial case, d2espite the fact that there is no appearance of motive and despite some aspects of it that the applicant can point to.

KIRBY J:   He never admitted it, but is it consistent with the evidence?  What evidence is inconsistent with that he stole the card but did not commit the homicide – stole  and used the card, but did not commit the homicide?

MR FREARSON:   On one view of it, it does present as patently ludicrous that you could be just there at the time when someone dies of natural causes.  This is at 11.30 at night.  It is in a flat on the fourth floor, a flat that is normally secured.  Someone has obviously come there at sometime after – she was last seen at 11.30 – and the account has been accessed at 4.30 in the morning, four and a half hours later.  In that very narrow timeframe someone has just happened upon someone who died of natural causes and then set about to fleece the account.  It presents as patently ludicrous and my submission is that no jury would ever accept it. 

KIRBY J:   I suppose in your favour there is the fact that the card was used so quickly after the homicide.

MR FREARSON:   Yes, your Honour.

KIRBY J:   Four and a half hours later he was at a club using the card, or at a machine.

MR FREARSON:   Yes, your Honour, it is the timeframe of her being last seen late at night and the card being used in the very early hours of the

morning.  Once you attribute the fleecing of the account to the applicant, in my submission, the Crown case is unchallengeable.

KIRBY J:   No, it is not unchallengeable.  In human affairs people may have an affair and then discover the person dead and then think of using the cards and go out and use the cards and then be embarrassed to admit that.  I mean, these things can happen.  But that was not the case he ran at trial.

MR FREARSON:   No, your Honour.  Also, in relation to the bank accounts, apart from the striking resemblance, you have got a person who is smoking a cigarette with his left hand and there is a white car nearby.  He smokes cigarettes with his left hand and he drives a white Commodore.  It is a very powerful circumstantial case.

GUMMOW J:   Mr Barker.

MR BARKER:   I have no idea how many people in Liverpool drive white cars and smoke with their left hand but, in my submission, that is the sort of proposition which bedevilled this case.  The circumstances we say do not exclude hypotheses inconsistent with guilt.  I took your Honour to something said by Justice Grove.  Can I take you to something else he said in the course of sentencing the applicant, page 49, paragraph 28?

There are many aspects of this case which it is impossible for me to know.  I do not know how you came to be in the flat where I am satisfied the killing took place.

Well, that may or may not be something he was entitled to be satisfied about.  There was no evidence that the killing took place there. 

I do not know how you ascertained the PIN in order to access the account.  I do not know whether you brought the garbage bags with you or located them within the flat.  I do not know, on the probability that you were the author of the anonymous letter above referred to, how you could have acquired an amount of the information set out therein.

HEYDON J:   Because he conducted the killing and he conducted the taking of the money out of the accounts which the police had not told anyone about; information unique, as it were, to the killer.  That letter identifies the killer as the applicant.

MR BARKER:   That all obtains if we assume his guilt.

HEYDON J:   Not assumes his guilt.  Justice Grove found that he was the author of that letter.

MR BARKER:   On the probability.

HEYDON J:   Well, for sentencing purposes probability is good enough.

MR BARKER:   Yes, but it would not have been ‑ ‑ ‑

HEYDON J:   For Justice McClellan’s purposes, he found it beyond a reasonable doubt.

MR BARKER:   Well, in my submission, that simply was not open, that finding.

HEYDON J:   Not open?

MR BARKER:   No.  I mean, the letter was handwritten.

HEYDON J:   Just irrational.  Totally ‑ ‑ ‑

MR BARKER:   The letter was handwritten and they could not even prove it was the accused, and they had his handwriting.

HEYDON J:    Esoteric knowledge proves it is the accused.

MR BARKER:   I am sorry?

HEYDON J:   What in South Australia the courts call “the esoteric knowledge” establishes that it is the accused because ‑ ‑ ‑

MR BARKER:   Why could it not be someone else, with respect?

KIRBY J:   Well, you posited another person, Mr Khanna, I think?

MR BARKER:   Yes.

KIRBY J:   That does not run really.

MR BARKER:   Or another person unknown.  We have evidence of a strange phone call which caused her some consternation the day before which was not the accused because somebody took down the number from which the call came.  There was evidence of a phone call the day after saying that she had to go to India, that was not ascribed to the accused.  At page 83 of the application book his Honour said at paragraph 92 that the possession of the camera “points significantly to him being the killer”.  Then he says:

The suggestion that someone came into the deceased’s unit after she had passed away and stole her credit card cannot be reconciled with the lack of any evidence of forced entry to her unit.

But yet at page 58, paragraph 6 his Honour seems to have no difficulty with the proposition that:

The Crown alleged that the appellant then returned to the deceased’s flat, obtained access to her personal identification number (“PIN”) and at 4.33 am returned to the same Commonwealth Bank –

Now, there is simply no evidence at all of any means by which the accused could have got into the flat either once or twice and on the Crown theory he is a bit like a man who succeeds in leaving the lion’s cage, he has gone back for his hat.  That, in my submission, is a preposterous proposition and it is completely unsupported by the evidence.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.42 AM:

GUMMOW J:   The applicant seeks special leave to appeal against orders of the New South Wales Court of Criminal Appeal that confirmed the orders at trial convicting him of murder and sentencing him accordingly.  The conviction and sentence followed a guilty verdict at a trial by jury.

The evidence against the applicant was circumstantial.  Whilst, of course, that is not unusual – see, for example, De Gruchy v The Queen (2002) 211 CLR 85 – it does demand vigilance on the part of the Court of Criminal Appeal and this Court against risk of miscarriage and unreasonable verdicts.

In the present case the Court of Criminal Appeal unanimously concluded that the prosecution case against the applicant was in totality “compelling” – see paragraph 75 of the reasons.  In our view, that conclusion was open to the Court of Criminal Appeal.  Amongst the relevant evidence was:

1.The evidence of the condition of the deceased’s apartment and placement of her dead body.

2.The evidence that the deceased’s credit card was used within about four hours after her death.

3.The available inference from photographs that it was the applicant who used the credit card.

4.The evidence tending to confirm that the applicant was at the places where the card was used.

5.The incredible statements of the applicant to explain such coincidences.

6.The evidence that the applicant had pawned a camera belonging to the applicant and his unconvincing explanation for having obtained it.

7.The suspicious letter received by the police containing information not then publicly available.

There are peculiarities in the evidence and contrary argument.  However, these are not sufficient to cast doubt on the conclusion expressed in the Court of Criminal Appeal. 

The only point which might attract a grant of special leave is the submission that the Court of Criminal Appeal applied the incorrect test by hypothesising the jury’s response instead of considering its own conclusion as to whether the verdict was relevantly unreasonable – see paragraph 91 of the reasons of the Court.

We are not convinced that this argument has reasonable prospects of success.  The passage at paragraph 91 was preceded by detailed reference to relevant authority, especially to M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606, and by a detailed review of the salient features of the evidence.

We are of the opinion that the judges of the Court of Criminal Appeal ultimately applied the correct test for themselves and that no miscarriage has occurred.  Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 10.45 AM THE MATTER WAS CONCLUDED