Louden v The Queen

[1996] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S188 of 1995

B e t w e e n -

RENTON JOHN LOUDEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 9.50 AM

Copyright in the High Court of Australia

MR R.F. GREENWOOD, QC:   May it please the Court, I appear with my learned friend, MS M.A. MARTY, for the applicant.  (instructed by Peter Ash & Associates)

MR R. KELEMAN:   If it pleases the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Greenwood?

MR GREENWOOD:   Your Honours, we refer to the applicant’s summary of argument and rely on it.  There are some mistakes in it which I would just like to deal with.  The summary of argument at 1.2, it is minor, but the second last line between the words “with” and “police” should be the word “by”.  I apologise that the applicant is sometimes described as the appellant.  At 2.2, line 2, your Honours, we plead that the appellant (sic) primarily contended that it was not there and that any evidence of being found in items at the premises was due to the police having put it there.  That is not a fortunate choice of words because the case for the applicant was not that the police had necessarily planted the material at the place, at the scene of the alleged amphetamine factory, but had put it there in the sense that in the totality of evidence by inference it was “there”.

BRENNAN CJ:   Has this argument escaped the attention of the Court of Criminal Appeal? 

MR GREENWOOD:   Yes, your Honour.

BRENNAN CJ:   Escaped it or not put?

MR GREENWOOD:   No, not put, your Honour.

BRENNAN CJ:   Not put?

MR GREENWOOD:   Not put.

BRENNAN CJ:   It is a very brave submission to suggest that special leave should be given by this Court to consider a proposition that was not put to the Court of Criminal Appeal. 

MR GREENWOOD:   Your Honours, by the time this matter went to the jury the New South Wales Court of Criminal Appeal, which was my tribunal, had already decided in the cases which we have supplied to the Court, in short term, that the McKinney warning or direction was limited to confessional statements, in not one case but a number and not by one constituted court of personnel, but by a mixture of the judges of that court.

KIRBY J:   I think I sat in one of those cases and expressed some reservations about the line of authority.

MR GREENWOOD:   Your Honour did.

KIRBY J:   What was that case?

MR GREENWOOD:   That was Ly, your Honour.  Your Honours, on that point we have prepared a document which outlines the places at which, in each of the cases that we have supplied, the McKinney point is dealt with.  I hand up three.  We say that ‑ ‑ ‑

KIRBY J:   Were there any other cases in which a member of the Court of Criminal Appeal expressed the view that the McKinney warning extended to cases of this kind?

MR GREENWOOD:   No.  Your Honour Mr Justice Kirby in Ly, which we have supplied, is at ‑ ‑ ‑

KIRBY J:   Yes, it is tab 3.

MR GREENWOOD:   Page 5 of your judgment is at tab 3.

KIRBY J:   Why should the McKinney warning not be confined to official statements, given its purpose?

MR GREENWOOD:   Because perceived need for warning arises, we say, from the position of vulnerability of an accused person to a situation where evidence of a real nature is on his case tampered with in circumstances in which he is in custody or removed from the scene in the same position as envisaged by a person in a police station in a confessional situation.  We say that there is no difference in principle between the dangers of manufactured evidence in relation to what a man may say, what a man may do, be observed or in relation to what the real evidence reveals in circumstances such as this where there was an availed opportunity to provide corroborative material ‑ ‑ ‑

KIRBY J:   In the argot this is the giving of presents, is it not?

MR GREENWOOD:   The giving of - - -?

KIRBY J:   Presents.  I mean, in the argot, this is the giving of presents.

MR GREENWOOD:   Yes, yes.

KIRBY J:   I suppose if a dishonest policeman is going to occasion a mistrial, a miscarriage of justice, then they can either put it in words or they can put it in presents?

MR GREENWOOD:   That is right.

KIRBY J:   You say that the mischief that McKinney was directed to is the same mischief and that the same warning that is required conceptually is required for the one vice as for the other. 

MR GREENWOOD:   That is what we are saying.

KIRBY J:   That is what I said in Ly.

MR GREENWOOD:   We are saying that if it is so limited then the concept lacks, to quote your Honour actually in Ly, “a conceptual integrity”.

McHUGH J:   That may be so, but as the one member of the majority in McKinney who happens to be on this Bench, we went out of our way to say that police officers were not to be regarded as being unreliable witnesses.

MR GREENWOOD:   Yes.

McHUGH J:   The basis of the McKinney warning was the special position of vulnerability that an accused person is in when that person is in police custody.

MR GREENWOOD:   Yes.

McHUGH J:   That was the basis.  We can only accept your submission by repudiating what we held to be the case in McKinney, namely, that police officers are not to be regarded as unreliable witnesses.

MR GREENWOOD:   With respect, your Honour, no, we do not gainsay the proposition laid down in McKinney that police officers are not per se to be regarded as unreliable witnesses.  What we are looking to is the particular circumstances of particular cases including where real evidence is allegedly tampered with.  We say that in those circumstances if the allegation is a live issue, if the police officers happen to be those Crown witnesses who are in the position of allegedly planting the material ‑ ‑ ‑

McHUGH J:   What was the basis in this case for alleging that the police officers tampered with the evidence, as opposed to the scientists, for example?

MR GREENWOOD:   It was feasible on the face of the evidence that, I suppose, the scientists tampered with it, but hardly a real issue.

McHUGH J:   Why?  Only on the basis that police witnesses are more unreliable than scientific witnesses?

MR GREENWOOD:   Your Honour, the police were the only ones who had the opportunity to tamper with the evidence in any real sense because the analyst was only proximate to the physical exhibits in the company of a whole lot of other people, some taking video camera shots of what he was doing, and so on and so forth, and it was only after he left the scene and nominated the articles to be taken back to his laboratory in Sydney, the bulk articles, that the exhibits then were in a position of being in police custody at the local police station then they took them unsecured on the back of trucks to Sydney.  They did not get there for another four days or so, and it was during that period that, we suggest, was the most likely period in which those bulk samples were the ones tampered with.  His samples, his minute samples that he took, which could have been used if they matched for corroborative evidence of what ended up in the laboratory in Sydney are the ones that went missing.

BRENNAN CJ:   Who had custody of them?

MR GREENWOOD:   He did, but the police had custody of him in the sense that there was a party on afterwards at the police station in which the police were there and he was there.  They then took him to the airport. Whether by then he still had his samples or not the evidence is silent.  They put him on a plane.  He went back to Sydney.  All he was able to say was that his samples somewhere along the line went missing.

BRENNAN CJ:   So, on that proposition, it seems that some police must have extracted the samples one place and put them in at another.

MR GREENWOOD:   No.  The samples were taken from various items around the factory.

BRENNAN CJ:   No, no.  The samples that went missing might have been extracted by the police?

MR GREENWOOD:   Yes, they were in a little bag.

BRENNAN CJ:   They might have been put back again in the others?

MR GREENWOOD:   No, no, with respect, no, because that would defeat the whole point that I am here about.

BRENNAN CJ:   Is not that the proposition?

MR GREENWOOD:   Let us just take one example.  There was a bucket in a shed with 100‑odd grams of amphetamine salt which was allegedly in the bucket.  The analyst goes to the bucket, takes a sample, puts it in his little bag and says, “Bring that back to Sydney so I can test it back there.”  The sample that he puts in his little bag goes missing.  The police then have custody of the white bucket for the next five days.  On the evidence it was possible to introduce that amphetamine salt physically by having a quantity of amphetamine salt and tipping it in the bucket.  That white bucket, when analysed back in Sydney by the analyst, was found to contain methyl amphetamine.  The samples in the meantime which would qualitatively have been capable of corroborating the finding of the amphetamine salt were the ones that were missing.  It would not have been possible to achieve that result by, as your Honour hypothetically suggested, putting the samples back because the samples were only minute.  This was 100‑odd grams of amphetamine salt.

BRENNAN CJ:   I am not suggesting that.  What I am suggesting is that if you are pointing the finger at the police, you are attributing to the police on the one hand the extraction of the samples that the analyst had, and on the other, the salting of the material that is going to the analyst for examination.

MR GREENWOOD:   The extraction of the samples that the analyst had by them going missing, yes. 

BRENNAN CJ:   Were they trying to write this fellow into the frame of guilt or not?

MR GREENWOOD:   Yes, your Honours, that was the contention.  My client said, “I was there the day before.”

BRENNAN CJ:   By extracting samples?

MR GREENWOOD:   No, by the samples going missing.  They had already been extracted by the analyst, put in his little sample bag, and they do not turn up in Sydney.  The purpose of taking them was for the qualitative potential corroborative nature of what they may reveal when he did the bulk analysis of the things that went back to Sydney on the back of the truck, back in Sydney.

KIRBY J:   Speaking only for myself I think this point is a significant one but I am not sure that this is a good case.  First, it was not formally reserved as it was in Ly.  Secondly, the actual intrusion into the property was conducted with videos and seems to have been conducted with some care.  Thirdly, you really have not been able to suggest in the facts of the case any other foundation that would explain a reason for doubt about the evidence of the police, or why they would try to give presents to your client.  So, that, though, one day the issue of the conceptual basis of McKinney, whether it is vulnerability which can exist at a police station but can also exist in other circumstances, needs to be reconsidered, is a question, speaking for myself only, that may need to be considered, but I do not think this is the case.

MR GREENWOOD:   Well, if I can pick up the middle point there, the care with which the video and so forth, that aspect ‑ ‑ ‑

KIRBY J:   That picked up in a way what I had said in Ly, that no, the police had not gone with videos as they can at police stations, but that seems as though that is becoming an increasing practice and a good practice.

MR GREENWOOD:   That was all very well, but that has got nothing to do with the point in this case, with respect.  The analyst was videoed as he went around the place inspecting things and, then, at the end of the day, the analyst had his little bag of samples and he said, “Bring, this, this, this and this back to Sydney so that I can analyse them.”  Then the police had the custody of those exhibits.  Now, up until then there is evidence supporting the integrity of the manner in which the whole thing is conducted, but then the blind comes down, and you are then in a position where police officers have the custody of these things and the integrity of the ‑ ‑ ‑

KIRBY J:   I can see the theoretical argument, but what was the suggested motivation or purpose of the police tampering with it when they had gone to all the trouble of having the video and getting the samples taken by a scientist?

McHUGH J:   And by hypothesis, pure samples, that is uncontaminated samples, are in the custody of the scientists, which may turn up at any moment.

MR GREENWOOD:   Well, not if they have been - if that possibility has been negatived.

McHUGH J:   Who knows?  Your case, it must be, that after they learnt that the samples are missing, they decided the doctor doctored the other material.

MR GREENWOOD:   Your Honours, the rationale for the plant was that at the time of the raid the only chemical processes going on - and they had been listening in to what was going on - was the manufacture of P2P and the distillation of water.  That became apparent when the raid was conducted that that is what was going on.  Now, in those circumstances, that was not an offence, manufacturing of P2P or conspiring to manufacture P2P is no offence.  The conspiracy charge was the conspiracy to manufacture methyl amphetamine, and the finding of methyl amphetamine on the premises, principally in the white bucket in the shed which I have previously referred to, if it could be introduced into evidence that it was there found, would be an extremely telling supplement to the limited evidentiary material that the police were presented with, which was the manufacture of a perfectly lawful substance.  So that is why it was something which we said was likely to have happened.  Against the background that this was a very expensive, long investigation, New South Wales/Victorian joint task force, helicopters, expensive surveillance and so on and so forth.  The DEA, who conducted it, had newly been formed with a fanfare, “These are the straight men of drug enforcement.”  All that was the background for what we said was ‑ ‑ ‑

McHUGH J:   Does it not come to this that on your case the materials on the premises were P2P and samples were taken away showing that, then suddenly when the police find out that the samples are missing, they decide to load up your client by putting this material or adding it to the P2P?

MR GREENWOOD:   Either that or the disappearance of the samples was engineered, just as the plant was engineered, as part and parcel of the same present.  Because if the analyst’s samples turned up and did not match, then, of course, they would be in real trouble.  If they planted it then they would know that those samples would not match.  The best argument that we think can be advanced for the special leave point is that in McKinney itself the dissenting judgment of your Honour the Chief Justice, at page 485, in dissent, and in criticism of the majority in McKinney, said in one part of it:

In other words, it will apply whenever the police have an opportunity to fabricate evidence against an accused in custody.

You were then addressing a criticism placed on a floodgates argument.

KIRBY J:   No.  His Honour was testing the proposition that at its heart is a question of vulnerability, not a question of police stations.

MR GREENWOOD:   Yes.

KIRBY J:   And, his Honour was saying, “Well, this is an unstable principle that can’t be kept at police stations.”  Because you can say it is a police station, a McKinney is a police station, but the vice at which it is directed will extend generally and that that will lead to a new class of disadvantaged witnesses, witnesses who cannot be believed.  Well, the point that you make is that the principle in McKinney has a general application.  The point that I am concerned about is I think Ly, which has been unreported, I understand, was a much better case to test it than this case is.

MR GREENWOOD:   Similarly, at page 488, we say that the judgment of Sir Daryl Dawson, also in dissent in McKinney, also raises perhaps a strong argument for the granting of special leave.  I see that my light is shining, your Honours.

BRENNAN CJ:   Thank you, Mr Greenwood.  We need not trouble you, Mr Keleman. 

The point which the applicant seeks to raise was not raised before the Court of Criminal Appeal but, it is said, the Court of Criminal Appeal had already set its face against the proposition that a warning should be given in relation to police custody of articles of real evidence.  This Court would not ordinarily grant special leave when a point requiring analysis of the facts has not been considered by the Court of Criminal Appeal.  Even if the point has substance - and as to that we say nothing - this is not the case in which to raise it.  Accordingly, special leave will be refused.

AT 10.12 AM THE MATTER WAS CONCLUDED