Lester v The Queen

[2011] HCATrans 126

[2011] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B74 of 2010

B e t w e e n -

JIM LESTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 11.42 AM

Copyright in the High Court of Australia

MR M.J. FOLEY:   May it please the Court, I appear on behalf of the applicant, with my learned friends, MR J. PAPPAS and MR N.J. LARTER.  (instructed by Ben Aulich & Associates)

MR M.J. COPLEY, SC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (Qld))

GUMMOW J:   Thank you.  You need an extension of time?

MR FOLEY:   Yes, your Honour.

GUMMOW J:   Is that opposed?

MR COPLEY:   No, your Honours.

GUMMOW J:   I think it is quite a short gap.

MR COPLEY:   Yes.

GUMMOW J:   Yes, Mr Foley.

MR FOLEY:   Thank you, your Honour.  This case involves a serious erosion of the presumption of innocence.  The decision of the Queensland Court of Appeal in this case is appellate court authority for the erroneous proposition that the absence of denial is evidence of guilt.  The fundamental error of the Court of Appeal appears at page 116 of the application book where Justice Muir at paragraph [33] of the judgment refers with approval to the following propositions:

the absence of such a denial is some evidence of an admission on his part of the truth of the charge or some evidence of conduct by him such as to show consciousness of guilt.

It is difficult to contemplate a more succinct reversal of the onus of proof.  The right to silence has been replaced with a duty of emphatic denial.

BELL J:   I am not sure that is the way to view it, is it?  Was not the court of the view that it was open to consider in the circumstances – open to the jury to consider that the response to the question asked by Mr Challender of the applicant “Did he do it?” his rather muted response to that was a circumstance which it was open to the jury to take into account on a view in those circumstances it would have been expected that a person would respond in a manner other than the way in which the applicant responded to that question.  This is not official questioning, this is a friend asking did you do it, and part of the circumstantial case on which the prosecution relied was the response.  Now, what, having regard to statements of this Court in Woon and the cases that have followed is the error there?

MR FOLEY:   There are three errors, with great respect, your Honour:  firstly, that the words were irrelevant and inadmissible in accordance with the test laid down in Grills’ Case; secondly, to refer to your Honour’s observation that this was essentially a circumstantial case from which an inference should be drawn, there was no warning that that inference of an admission of guilt was the only reasonable inference open on such words; and, thirdly, the question put to the jury and subsequently approved by the Court of Appeal at page 118 involved inverted logic, namely, not was there an admission but was there a denial?  That was bound ‑ ‑ ‑

BELL J:   Where do we find the direction that the judge gave to the jury concerning this evidence?  Is it on page 118 at about line 40?

MR FOLEY:   No, your Honour.  That is the ruling that the judge made in respect to the objection.  The direction to the jury is to be found earlier in the application book.

BELL J:   Just taking you to the passage I have directed attention to, it includes the judge saying:

It’s up to you to decide whether that was an accusation or an assertion, or a question which required an answer, friend to friend, and whether the answer or the lack of it given by the defendant is an implied admission -

and then his Honour goes on to say it was a matter for the jury to decide.  This is in what context, Mr Foley?

MR FOLEY:   It is in the context these persons had been friends.  It is in the context that they had known each other for 30 years.  It is in the context that the applicant ‑ ‑ ‑

BELL J:   Mr Foley, what I am asking is if you go to application book 118, next to line 40 there is some material which appears to be statements made by the trial judge.  Are those directions given by the trial judge to the jury or something else?

MR FOLEY:   Yes, your Honour.

BELL J:   Yes.  These are the directions that the trial judge gave the jury as to the use they were to make of the evidence that is the subject of your complaint?

MR FOLEY:   Yes, your Honour.

BELL J:   What is it specifically that you say is wrong with those?

MR FOLEY:   Firstly, that the direction was in error because the words were logically incapable of bearing the meaning which it was said was open to the jury.  The words “Mind your own business” or the words with the adjective interposed before “business” are simply incapable, as a matter of logic, of giving rise to an admission.  As such, they are irrelevant and inadmissible in accordance with what Chief Justice Griffith said. 

Secondly, your Honour, even if the judge were to, as approved by the Court of Appeal, rule that that was an inference that was open, there should properly have been a direction to the jury that they may not find it to be an admission unless, in accordance with the standard rules relating to circumstantial evidence, it was the only reasonable inference or the inference which so overwhelmed every other inference.  That was not directed.

It was said earlier at page 7 of the application book a general direction was given.  At page 7, lines 10 to about 30, there was the general direction given with respect to inferences but that, in my submission, is too broad and too general to effectively cover the specific inference of an admission of guilt in circumstances where there may well have been other inferences open to the jury, such as, for example, the inference of a robust assertion of one’s privacy.

BELL J:   What is the error in the reasoning of the Court of Appeal?

MR FOLEY:   The error in the reasoning of the Court of Appeal is threefold:  firstly, it failed to apply the threshold test of relevance.

BELL J:   Can you take us to the passage in the judgment that you complain of?

MR FOLEY:   Yes, your Honour.  At page 116, from line 40 onwards, under the heading “Consideration of the admissibility ground”, Justice Muir, with whom the learned justices agreed, set out, with approval, the ruling of the trial judge and subsequently, in paragraph [34], approved that without considering the threshold test as to whether, as a matter of logic, commonsense or the plain meaning of words those words were capable of giving rise to it.  The first error was in relying upon a generalised circumstance from which the jury, it was said, were entitled to rely upon an implied admission.

GUMMOW J:   What do you then say in response to Mr Copley’s submissions in this Court at page 174, 3.1, 3.2, references to Justice Windeyer in Woon, and 3.3?

MR FOLEY:   We respectfully submit this, your Honour ‑ ‑ ‑

GUMMOW J:   Something less than strict logic is in play here.

MR FOLEY:   Yes.  Woon must be taken with care because admissibility was not argued in Woon.  Reliance is placed by Justice Kitto at page 535 of that judgment back on Grills’ Case.  Grills’ Case involves some strong safeguards and commonsense assertions by Chief Justice Griffith, by Justice Barton and by Justice Isaacs, who is in dissent.  Chief Justice Griffith set out the relevant test at pages 408 and 408 of Grills’ Case, where it was clear that there was a function for the judge before the matter was simply thrown to the jury to consider.  There Chief Justice Griffith said, at 409, at about point 1 to point 2:

The circumstances of the case may show that such conduct is evidentiary of some fact relevant to the question of his guilt, e.g., his untrue denial of some relevant proved aliunde.  If it is not evidentiary of any such fact the evidence is irrelevant, and inadmissible on that ground.

That threshold was not properly applied.  Indeed, in a later Queensland case of R v Doolan Chief Justice Mansfield at page 451 in a case where your Honours may well think that the factual matrix was much stronger for the giving rise of an inference where a case involving a statement to police where the accused had said of his colleague “He had more sense than to give the police a statement.  He has dubbed us all in”, Chief Justice Mansfield, along with Justice Philp and Justice Townley but in particular, Chief Justice Mansfield, observed at 451:

The appellant’s statement in my view was not capable of amounting clearly to an admission by him of the truth of Tallis’s statement, and the jury were not justified in acting on it as evidence against the appellant.

It involves, in my respectful submission, an abrogation of the proper function of the judge by simply passing the issue onto the jury and saying, “Well, it is a matter for you.  You can so find it.  It is open to you to find.”

BELL J:   Where was the admissibility challenge dealt with?  Where do we find that in the application book?

MR FOLEY:   It appears at the original passage there at page 116, paragraph [33].  There was an application made, or there was an objection made to the evidence by my learned friend, Mr Pappas, who conducted the trial and in ruling on – there was an objection to the admissibility.

BELL J:   Do we have in our application book the exchange or any reasons that his Honour gave or do we find it here in paragraph [33]?

MR FOLEY:   We find it in paragraph [33], your Honour.

BELL J:   You say that the evidence was inadmissible.  The trial judge took the view that in the circumstances of a friendship over a number of years for the accusation to be put directly and to receive the muted reply that it did, was, as a matter of law, capable of being found to be an implied admission.

MR FOLEY:   That is so, your Honour.

BELL J:   You challenge that?

MR FOLEY:   We respectfully submit that is to invite the jury to confect an admission of guilt from words and conduct logically incapable of bearing that meaning.  We respectfully submit it is to invite the jury to conjure an admission out of the ether.

BELL J:   You are saying that the evidence was inadmissible because it was not capable of supporting the inference.  Is that ‑ ‑ ‑

MR FOLEY:   That is correct, your Honour.  That is my first argument.  The second argument was, if it were capable of so doing, it can hardly have been the only reasonable inference open on the words.

BELL J:   But that becomes a matter for the jury, does it not?  If it is admitted and it is not an indispensable link in the chain of reasoning, why do you say that the judge had to do more than give the direction that he gave and to which you earlier directed our attention with respect to the drawing of inferences?

MR FOLEY:   We say firstly and simply, it is irrelevant and inadmissible, if the Court is against us on that.  The second point is if it is advanced as a proposition open, then it falls into that class of circumstantial evidence in respect of which a specific warning must be given that the jury may not draw that inference unless it is the only reasonable inference, or it so overwhelms every other inference.  That direction was not given.

The Court of Appeal erred in failing to direct its mind to it, and thirdly, with respect your Honour, there is the inverted logic about asking the jury whether it was a denial, to which the plain answer must be no in circumstances where that was the wrong question.  That appears at page 118 in the passage to which your Honour referred before, at about lines 47 onwards:

You must consider whether a friend asking another friend if he is implicated in his wife’s death calls for a denial if in truth he had not been involved and, of course, you must consider whether there was an answer given which amounted to a denial –

That must have been puzzling to the jury, because it was plainly not a denial, except in the context of being “mind your own business”, which I suppose on one view could have been taken to be a denial, but it is with respect the wrong question.  It involves a double negative.  It involves inverted logic, and a misleading of the jury on a matter which was fundamentally critical to the prosecution case against the accused, one which is of general application, one which fails to put in place the safeguards set out in Grills and adverted to in Woon.  They are my submissions, your Honours.

GUMMOW J:   Yes, thank you, Mr Foley.

We see no error by the Court of Appeal of the Supreme Court of Queensland in its treatment of the issue of admissibility of evidence upon which the applicant bases the application for special leave to this Court.  Accordingly, special leave is refused.  It is implicit in that we do not need to call on you, Mr Copley.

MR COPLEY:   Thank you, your Honour.

GUMMOW J:   Special leave is refused.  The Court will adjourn to reconstitute.

AT 12.01 PM THE MATTER WAS CONCLUDED