King v The Queen

[1999] HCATrans 87

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B19 of 1998

B e t w e e n -

KENNETH BRUCE KING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 11.40 AM

Copyright in the High Court of Australia

MR R.F. GREENWOOD QC:   May it please the Court, I appear with my learned friend, MR J.D. WILKIN, for the applicant.  (instructed by Nicol Robinson Hallets).

MR D.L. MEREDITH:   May it please the Court, I appear with my learned friend, MR A.W. MOYNIHAN, for the respondent.  (instructed by the Director of Prosecutions (Queensland)).

GUMMOW J:   Yes, Mr Greenwood.

MR GREENWOOD:   Thank you.  First of all, a very short housekeeping matter, your Honours.  At pages 121 and 122 of the application book, I have pleaded a number of propositions from line 30 and over the page, (i) to (vii).  What was originally omitted was to place beside those propositions of fact, the page references where ‑ ‑ ‑

GUMMOW J:   Well you have a schedule, have you?

MR GREENWOOD:   Yes, I have.

GUMMOW J:   Do you want to hand it up?

MR GREENWOOD:   I am just trying to find it.  We just had it done this morning.  Yes, here we are.  This might assist your Honour if I can hand these up.

GUMMOW J:   Yes, thank you.

MR GREENWOOD:   May it please your Honours, the way that that matter is pleaded is that we have claimed that the following propositions emerged, and a correlation to those paginations and references, we hope, will be able to persuade the Court that they do emerge.  Your Honours, it is in relation to ground 2.1 that we say that we are on certain ground in so far as the special leave matter is concerned.

KIRBY J:   Very rare are special leaves certain.

MR GREENWOOD:   Beg your pardon?

KIRBY J:   They are very rarely certain.

MR GREENWOOD:   Well, we are on certain ground, whether that ground becomes successful may be another matter, but I wish to use my time in concentrating on the strengths, as we perceive it.

GUMMOW J:   But do you abandon the other ground?

MR GREENWOOD:   No.  But we say that the point, first of all, is of importance and has a conflict of authority surrounding it.  In support of that proposition, we principally rely on the case on the list of Thompson v Bella‑Lewis (1997) 1 Qd R 429, a copy of which has been supplied to your Honours. Very shortly put, we maintain that when a witness in a proceeding claims incriminatory privilege, the tribunal of fact is entitled, as we have pleaded, to draw from that claim of privilege an inference which is reasonably open, and that the claim of privilege is not, as a negative answer to a question going to credit is, the end of the matter.

In Thompson v Bella-Lewis, which is a decision of the Full Court of Queensland, the difference of opinion is expressed, first, by Mr Justice Davies, judge of appeal, at page 436, as he expresses:

There is a difference of opinion among judges and jurists…..

It is plain that no inference drawn by the jury could turn the refusal to answer into an admission and the witness would be protected from later prosecution whatever inference the jury may draw.  That protection is surely the purpose of the rule.

And then our proposition, or the proposition that we urge:

“The better view in my opinion therefore is that, in such a case, the jury are entitled to draw whatever inference is reasonably open.”

The President of the court, his Honour Mr Justice Fitzgerald at page 433, at the bottom, draws attention to the fact, about line 33:

The other members of the Court are divided on the correctness of his Honour’s directions.

Which is to do with this point.

McPherson J.A. considers them correct, while Davies J.A. considers that it was open –

et cetera.  And at page 434, his Honour, the President of the court, says, at line 6:

It is unnecessary for my purposes to attempt to choose between these competing views –

and goes on to be more inclined to lean, if I can be so bold as to say, towards the view expressed by Mr Justice Davies, which is what we would urge but does not decide the point, and finally, contra, Mr Justice McPherson takes the opposing view.  So that is ‑ ‑ ‑

GUMMOW J:   What do you say about the respondent’s treatment of Thompson v Bella-Lewis at page 133 and 134 of the application book? They get rather different things out of that case than you do.

MR GREENWOOD:   Yes, I do not know why.  But if I can go to the reasons ‑ ‑ ‑

GUMMOW J:   They say “the circumstances in the present case are quite different”, do they not?

MR GREENWOOD:   Yes, “the circumstances in the present case are quite different”, but the proposition is identical.  If a witness if asked a question ‑ ‑ ‑

GUMMOW J:   Yes, but what do you say 3.1.3, on page 134?  You have to get into the specifics of this particular case.

MR GREENWOOD:   Yes.  What we say is that, in this case, there were relevant affirmative inferences which were able to be drawn and those affirmative inferences are those listed, as I opened, at page 121 and 122.  What the respondent, with respect, has done is similar to that which the Court of Appeal did in seeming to fail to recognise that there are this discrete series of propositions which emerge, and that the inference to be drawn is a factual view.  In other words, what the Court of Appeal said was that you cannot draw the inference of innocence from this claim.

What we say is that that reasoning has the danger of jeopardising the position, as far as the accused is concerned, of the onus and burden of proof.  What we say is that the correct view is that, for example, if we take item (ii) on page 121, that she claims privilege when asked the direct question, did you ask him to open a “TAB account for her use”, privilege:

and to sign blank withdrawal forms for her use –

privilege.  Now we are saying that counsel should have been able to address, and the jury should have been directed, that they could conclude, from that claim of privilege, that, as a matter of fact, it was the case that that request was made by the witness or that, indeed, at its lowest, there is the distinct possibility that that is the truth.

KIRBY J:   It seems to be a rather small point in a large case with a lot of very strong evidence for the Crown.

MR GREENWOOD:   It would have been if this was that sort of case.  But if I go straight to the TAB account, it is emphasised in the summing up by her Honour and figures largely in the case.  It was opened in the December and was the recipient of deposits consistent with the sale of these drugs through until 17 March.  You see, what we are saying is that this made an enormous – in combination with them all, and just for example I am focusing on this – it makes an enormous difference when you have a substantially circumstantial case like this, when counsel cannot go to the jury with that sort of submission. 

The evidence of the TAB account is there as a very strong piece of circumstantial evidence, it is said, against the accused.  What this does is, if not turn it on its head, then certainly tilt it, so that as a fact in the case, a lot of the sting is taken out of it – if I can use that – and it is to take the sting out of the various propositions that is at the heart of a criminal trial in which, really, the defence is saying, “You cannot prove me guilty.”  If you go through these individual propositions, they vary, but they are all telling to that overall situation.

GUMMOW J:   Now, what relief do you seek in this Court?  You would want an entry of a verdict of acquittal?  That cannot be serious, can it, at page 113?

MR GREENWOOD:   I would be very surprised if I got that.

KIRBY J:   Astonished.  It would give you a heart attack.

MR GREENWOOD:   It would save me doing a trial.

KIRBY J:   I mean, the most you can say is that there was a misdirection on a particular matter and therefore you are entitled to a retrial according to law.  But when you look at the strength of the Crown case:  the surveillance; the seeing of the witness with your client; their long association, as well as the evidence of the TAB account, it really was a very strong and very carefully planned Crown case.  At least that was open to the jury to view it as such.

MR GREENWOOD:   They were robbed of a number of considerations, and we say wrongly robbed of a number of considerations, which eroded that case substantially, with respect.  Because if you take the propositions that, first of all, there is the overriding circumstance, of course, that this was a man and a wife in a de facto situation.  So their associations, the fact that they are seen together on occasions when the matter was posted.

KIRBY J:   They were seen together on the critical occasions, when she was posting the goods to the recipient.

MR GREENWOOD:   There is no evidence on those two occasions of his active assistance or knowledge ‑ ‑ ‑

KIRBY J:   Your theory is that she just happened to leave the car and go into the post office, and he had no idea what she was doing.

MR GREENWOOD:   Well, that is possible.

KIRBY J:   He was not, in any way, involved in her activities.

MR GREENWOOD:   But, consistent with innocence, it was also able to be hypothesised by the jury, that he knew what she was doing, but did not participate as far as criminality is concerned, because there was not the evidence there.

KIRBY J:   I think a jury would say “Pull the other leg”.

MR GREENWOOD:   Why, your Honour, with respect?  The woman admitted to being a heroin addict.  The supplier said “I only dealt with a woman”.  The telephone calls are consistent ‑ ‑ ‑

KIRBY J:   He said on one occasion a man answered the phone, did he not, and I thought there was evidence of it.

MR GREENWOOD:   Yes, but he did not speak to the man.

KIRBY J:   No.

MR GREENWOOD:   He said “I only have dealings with a woman”.  He was ‑ ‑ ‑

KIRBY J:   But that is the nature of dealings of this kind.

MR GREENWOOD:   It may be.  It may also be ‑ ‑ ‑

KIRBY J:   People distance themselves.  It is like war time, like the escape lines.

MR GREENWOOD:   Yes, but what is the quality of the evidence of the distance?  Does it connect or does it distance?  We say that the circumstantial case here, in any event, apart altogether from what was impermissibly excluded from the consideration of the jury, was it as your Honour would hypothesise it?  We say, with respect, no.  We say that that proposition is a proposition of importance, a proposition in which there is no authoritative decision and, indeed, a point of difficulty. 

KIRBY J:   What do you say was the correct direction, and what was the direction given, and what is the significance of the difference?

MR GREENWOOD:   On this aspect?

KIRBY J:   Yes.

MR GREENWOOD:   The direction given was, “You will recall the claims of privilege.  Yu are not entitled to make anything of that.”  It is as if those questions were never asked.  The ‑ ‑ ‑

KIRBY J:   Now, that is defensive of a witness’s fundamental entitlement which our law has long protected, not to have to incriminate himself or herself.  So that is a good strong direction that protects that value.  Now, what do you say ought to have been the direction?

MR GREENWOOD:   First of all, undoubtedly the protection is assigned to that witness, and no adverse inference can be drawn, or no interest of that witness can be affected by that stance.  But what can be done in the trial of X where she is only a witness, is a far different thing.  And what can be done is the drawing of a logical inference from that claim.  First of all, in the circumstances of this case ‑ ‑ ‑

KIRBY J:   Are you saying that the judge should have gone on to say, “But in this case she is but a witness and though she is not in any way incriminated by the answer, you are entitled, if you think it appropriate, to draw from her refusal to answer such conclusions as would ordinarily flow from that failure.”?

MR GREENWOOD:   Yes, which are the emerging facts in (i) to (vii) at pages 121 and 122.

KIRBY J:   That encapsulates the differences that emerge between Justice Fitzgerald and Justice Davies, on the one hand, and Justice McPherson in the Court of Appeal?

MR GREENWOOD:   Yes.

KIRBY J:   And, thirdly, what is the significance of it in this case, do you say, just in a nutshell?

MR GREENWOOD:   Right.  In a nutshell, the ‑ ‑ ‑

KIRBY J:   You say, when you look at all the evidence, the linkages between the accused and his de facto spouse were few and the critical one was the opening of the TAB account and that therefore had only the jury been told this, they would have put two and two together and said, “We cannot draw an inference against her because she is not on trial, but we draw the inference that she has claimed this in order to protect him and that she is not telling the truth”?

MR GREENWOOD:   That is a question of credit.  That is a valid question for the jury to consider.  But to withdraw it is to usurp their function.  Sure, if she was cross‑examined and it was put to her, “Look, you are making these claims of privilege just to protect this fellow”, then that could be properly tested by the jury.  But what we complain about is - that if we are correct as a proposition of law, that inferences can be drawn.  What we really, fundamentally complain about is that the jury were deprived of their proper function.

KIRBY J:   But does not going on and saying anything more about it effectively undermine a person’s entitlement to refuse to answer questions on the ground of self‑incrimination?

MR GREENWOOD:   No, because the trial has nothing to do with that person, and nothing that could be said to the jury by way of address or direction ‑ ‑ ‑

KIRBY J:   But it is a price that is attached by the law to the persons claiming what the law respects as a fundamental right of the individual.

MR GREENWOOD:   Because it is about its other business, trying the accused.

KIRBY J:   It puts a price on the claim as amongst friends, as amongst de facto spouses, or others that, if they claim it then they will have this comment made.  It puts a price on, a burden on claiming something that is fundamental.

MR GREENWOOD:   Yes, but it does not affect their legal status, and so I repeat, it is the court getting on with trying what it has.  We were deprived of that.  We were deprived, we say, of the conversations between the female

witness and the police officer, which were ruled to be inadmissible hearsay, and I will move on to this, if I may.

KIRBY J:   We have seen the other points, but I think you judged incorrectly.  If you are going to get up, you will get up on that first point, really.  That is your main point.

MR GREENWOOD:   Yes, I have realistically grasped that and agree.  But that is just another example of how, in the particular facts of this case, the rulings of her Honour in those two matters, took away legitimate considerations that the jury should have, in a fair trial, had available to them.

GUMMOW J:   Yes, perhaps we will hear briefly from Mr Meredith.  Yes, Mr Meredith.  Now, what do you say about this central point?  What do you say about this point which has been concentrated upon by Mr Greenwood?

MR MEREDITH:   It does not take the defence case anywhere because the inferences that were open were that, if the jury were allowed to conclude that this indicated her involvement, it did not mean that the applicant was not involved.  These are not offences that could only be committed by one person and, in fact, the Crown case was that she was assisting him and that her involvement would not have, in any way, assisted the applicant’s presentation of his case to the jury because, at all times, the Crown was saying they were acting in concert.  His signing of the withdrawal forms as the account holder, indicated his involvement, and the fact that she may have encouraged him to open the account, or that she may have assisted or even made the withdrawals, did not ‑ ‑ ‑

KIRBY J:   There does seem to be a difference of opinion in the Court of Appeal of Queensland concerning the directions that are proper to be given in these circumstances, so that that, in a sense, throws up an issue which might, in an appropriate case, be a case for special leave.

MR MEREDITH:   Yes, and this is not the case because ‑ ‑ ‑

KIRBY J:   So, effectively, we are concentrating on whether this is an appropriate vehicle for that issue to be resolved.

MR MEREDITH:   Yes, and I say it is not.

KIRBY J:   Now, just tell us again why you say it is not.

MR MEREDITH:    Because this is not an offence that only one person could commit.  It is the sort of offence that, naturally, could involve a

number of people, and that was always the prosecution case.  The claim that was made on her behalf by the solicitor who appeared for her was that any answer she might give, might make her amenable to a prosecution for trafficking for more than she had been already convicted, and naturally she would then be keen to deny anything that might indicate any involvement on her part.  But involvement on her part did not then - if the jury came to that conclusion, it did not mean that the applicant was not involved, and the Crown still had to rely on the evidence that implicated the applicant in the commission of the trafficking offences and the supply offences.  So even if the applicant had been given the direction that he seeks, it would not have advanced his position because there would still be all of the evidence that indicated his involvement.  All it might have done, it might have been a question of litigation.

GUMMOW J:   Yes, I do not think we need to hear you any more, Mr Meredith.

MR MEREDITH:    Thank you.

GUMMOW J:   Yes, Mr Greenwood.

MR GREENWOOD:   No, I have nothing really in reply to that, your Honour.  The question is posed for your Honours.

GUMMOW J:   In the circumstances of this case, none of the grounds urged by the applicant has sufficient prospects of success to warrant a grant of special leave.  The ground principally pressed this morning, ground 2.1, with reference to the decision in Thompson v Bella-Lewis and the division of opinion in the Court of Appeal might, in other circumstances, present a question of principle to attract a grant of special leave.  However, the circumstances of this case do not make it a vehicle that should attract the grant here.  Accordingly, special leave is refused.

We will take a short adjournment, after which we will deal with the matter that was stood over, which is application No 2.

AT 12.06 PM THE MATTER WAS CONCLUDED