McNeill v The Queen

[2008] HCATrans 383

[2008] HCATrans 383

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S294 of 2008

B e t w e e n -

GLENN PETER CHARLES McNEILL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 10.48 AM

Copyright in the High Court of Australia

MR P.R. GARLING, SC:   May it please the Court, I appear for the applicant with my learned friends, MR J.M. MORRIS and MS E. ELBOURNE.  (instructed by McIntyres Lawyers)

MR D.C. FREARSON, SC:   May it please the Court, I appear for the respondent with my learned friend, MS J.A. GIRDHAM.  (instructed by Crown Counsel of Norfolk Island)

GUMMOW J:   Thank you.  Yes, Mr Garling?

MR GARLING:   If the Court please.  Your Honours, following a conviction on 9 March 2007 for the murder of Ms Patton on 31 March 2002 the applicant’s appeal to the Full Court of the Federal Court was dismissed on 23 May this year.  There were, your Honours, a very large number of grounds of appeal but only one ground is raised in this Court.

KIRBY J:   Your amended notice of appeal suggests two grounds; the first relating to the interpretation of the evidence concerning the publicity given to the black plastic and the other is the general ground of the miscarriage of justice.

MR GARLING:Yes, your Honour, that is the second part really of the fresh evidence or new evidence point, if I may put it that way, because the Court needs to determine if a miscarriage of justice has occurred.  Your Honours, may I, I hope, give you a very short but relevant background to the fresh evidence so that your Honours have the basis of our point.  The Crown’s case, your Honours, was that there was no witness to this murder which happened on Easter Sunday in the middle of the day.  It involved a most violent series of acts constituted by four separate weapons; a blunt instrument, a rod‑like instrument, a sharp knife or similar sharp instrument and a branding iron type instrument.  None of these murder weapons were ever found. 

The Crown adduced circumstantial evidence which they submitted linked the applicant to the crime.  In short, there were four pieces of circumstantial evidence.  One, his fingerprints were two of ten found on a sheet of black builder’s plastic which covered the body at the time it was discovered.  Two, there were tiny fragments of glass from a wine bottle found on the victim’s body in the boot of a car used by the applicant and some small distance, a couple of centimetres, below the ground level next door to his carport.  Three, there was a sample of DNA in the boot of the lid of the car and, fourthly, there was some matching of paint flakes.  But principally, in our submission, the Crown’s case was that the applicant had confessed to the crime. 

KIRBY J:   The confession, as I understand it, was before the Full Court of the Federal Court, they saw the videotape of the confessional evidence and the confession itself did admit to killing of the deceased in a way that was, or could have been, quite violent.  He did try to minimise his effect, but what he said was that he thought she had been killed in a road accident and then finding that she was not, he then set about to terminate her life.

MR GARLING:Stabbed her on one account once, or on another account two or three or three or four times, but none of those accounts – death by the road accident, death whilst the body was in the boot of the car, being stabbed either once or three or four times – could possibly have related to this murder because the nature of the injuries that were not in contest told absolutely and directly against those accounts.  Your Honour has hit, may I say, with respect, on the central issue, which is the confession, not the fact that it was given, not the words that were used, not how he appeared, that was not challenged, it was on a video.  What was challenged was, was it reliable in the sense of, did it relate to this crime? 

Now, of course, the key to the resolution of such a debate is in the confession, is there esoteric knowledge confessed to by the applicant about the crime that fixes him with the crime?  Now, that is the absolute key, in our respectful submission, to reliability.

KIRBY J:   It is not the only key, though, if you have other evidence that tends to link him to the crime.  The fact that he goes along and makes a confession which on one view contains esoteric evidence but, in any case, is an unusual thing for a person to do, to admit to the crime of homicide, then the confessional material with the suggestion that he had a lesser role in the homicide itself becomes a matter which a jury might consider to be relevant in determining whether this man was utterly innocent or had some involvement which he wants to minimise.

MR GARLING:Your Honour has been seduced, if I may say so, with the greatest respect, by the proposition advanced by the Crown which is that this was a case of minimisation of involvement; to the very contrary.  If one takes the confession on its face, as the court describes, he says “I was the only person involved in killing the victim”.  Then when it is explored as a matter of fact, where did it happen, how did it happen, et cetera, he gives a version of events, all of which is in the public domain and it is cobbled together in a way which the killer could not possibly have put it together unless one said this is an extraordinarily clever person concocting an entirely random false imaginative story.

The key to that is esoteric knowledge.  That is the way in which courts, prosecutors and defence counsel have to deal with this sort of allegation.  In this case, your Honours, there is only one piece of esoteric knowledge that the Crown relied upon and it assumed much significance, both in address and in the judge’s summing‑up.  I would just like to take the Court, if I might, to ‑ ‑ ‑

GUMMOW J:   What about the fingerprint evidence?

MR GARLING:   I am sorry, your Honour?

GUMMOW J:   Are you going to divert us to look at the fingerprint evidence at any stage?

MR GARLING:No.  I was not going to take the Court to the detail of fingerprint evidence other than ‑ ‑ ‑

KIRBY J:   That is quite significant, is it not?

MR GARLING:   ‑ ‑ ‑ other than to talk of the context, your Honour.

GUMMOW J:   I see.

MR GARLING:The context is there are two fingerprints, middle and ring fingers, in the middle of a sheet of plastic which, when an identical sized sheet of plastic was handed to the witness in the courtroom at Norfolk Island and he was asked to open it to indicate where the fingerprints were, took up almost the entirety of the courtroom.  It had to be then displayed outside for the jury to look at.  The significant point is this, very, very large sheet of plastic, four metres along this side, three point something along that side, two fingerprints in the middle of it, both together on one side, no opposed grip or no other fingerprints on it as one might expect if it were opened out ‑ ‑ ‑

KIRBY J:   It is not the significance that they were there as distinct from where they were?

MR GARLING:Yes and no.  Of course, your Honour.  The question then is, what is his explanation for the fingerprints?  Hence the critical issue about where the plastic came from, because there were two explanations before the jury; the confessional explanation, “I got it from up the back or the building site next door”, supported in part by some evidence from the Crown that there was building work going on next door and the building work used black plastic and corroborated by the fact that the builder engaged on that job’s fingerprints were also on the black plastic.

GUMMOW J:   There was DNA in the boot, was there not?

MR GARLING:I will come to that your Honour, if I might.

GUMMOW J:   I see.

MR GARLING:May I answer the proposition directly by saying this.  For every piece of circumstantial evidence there was either an answer before the jury or conflicting DNA evidence.  May I give your Honour a quick example of that.  When the victim’s body was found, it was a feature of the clothing that it had been cut vertically in an upward and outward motion by a sharp knife.  For reasons which I will not go into, it was clear that had to have happened at the scene where the victim was found. 

DNA swabbing of the shorts produced no DNA relevant to the applicant at all, but in the area adjacent to the cut where a hand would have to have been put to cut the shorts, the DNA of an unidentified female.  Insofar as one talks about DNA in the car, there was an absence of any other blood, DNA, bodily fluids or any other material proved before the jury consistent with the victim being in the car.  But, your Honours, may I just give your Honours six references to the importance of the esoteric knowledge because it formed a very significant part in the course of the judge’s summing‑up.  I will only take your Honours to two or three of them, but can I give your Honours these references.

At application book 75, line 10, the trial judge said that the submission of the crown prosecutor was that the record of interview was accurate because of the black plastic.  At 77, line 30, the trial judge read the interview, as he did at 82, line 1, to the jury.  When I say “read the interview”, those questions in the interview.  At page 87 towards the bottom of the page and over the page, the trial judge in concluding the day’s summing‑up said:

I did read to you the bits where the accused described the location of the black plastic and I interposed that Mr Garling put a submission to you about what he might have meant or must have meant or should have meant when he referred to the building site.

That is the then accused –

You will recall there was a submission that the building site in question was actually a building site –

at the next door and so on.  Importantly, your Honours, at 102, line 40 to 103, line 20 is three paragraphs where his Honour is summing‑up the Crown prosecutor’s argument to the jury and he spends a good deal of time concentrating on the fact that this was the sole esoteric knowledge that the Crown pointed to.  He returns to it, your Honours, at application book 112, line 20, where he again comes to describe the way in which the defence had to deal with matter at trial.

At the bottom of page 111 he introduces it and then he says, at line 12, Mr Garling also submitted there was another possibility, et cetera.  Then the trial judge says at line 20:

Mr Garling submitted that these two possibilities provided an answer to the prosecution’s contention that Mr McNeill’s reference to the black plastic at the building site involved knowledge on his part that could not have been gained unless he himself was responsible for Janelle Patton’s death.  What you make of those submissions, again, is entirely a matter for you. 

Your Honours, there can be no question that this piece of esoteric knowledge occupied a central issue on the reliability of the confessional material.  Now, may I just say this your Honours ‑ ‑ ‑

KIRBY J:   Except that the detective, when he gave evidence, was rather qualified in the way in which he said, “Well, as far as I know, it was not in the ‑ ‑ ‑

MR GARLING:Correct, but it is the way it was dealt with, your Honour.  The way the prosecutor dealt with it and the trial judge has summed it up is to say it was esoteric knowledge, it was not in the general field.

KIRBY J:   That is a question for the jury to determine in the light of what the police officer said.

MR GARLING:But it was never put that way, your Honour.  The way in which this ran at trial, as the Crown said, there it is, there is the answer.  Now, your Honours, may I just add this fact which may or may not be of weight, but there is a tendency, we would submit, with the greatest respect to Courts of Appeal and those reviewing criminal convictions, to give confessions a category of special evidence.

KIRBY J:   Only if they are recorded and they are the actual visual presence of the accused giving the statement.

MR GARLING:Absolutely, your Honour, but, nevertheless, a confession is a piece of evidence that needs to be examined to see what weight, if any, it carries and how reliable it may be.  It does not have any particular status, we would submit, that absolves it from careful examination.  Reliability here was obviously an issue.  The Crown itself said, “We do not accept what he said in his record of interview as being correct”.

KIRBY J:   Yes, but that was for their purpose because they were saying he was minimising what he had done.

MR GARLING:I do not quite understand that proposition, but that is what they said, your Honour, I accept, but ‑ ‑ ‑

KIRBY J:   They did not decline to tender it on the ground that it was unreliable.  They put it in and it was before the jury and I could understand that the jury would think that most people do not go around confessing to murder or to homicide.

MR GARLING:And the fact which is relevant to that, your Honour – and if your Honours took the view, as it seems the Full Court did, that the confession was the start and finish really – the jury in this case, your Honours, reflected on their decision, their verdict for nearly two days.  It was not a case of a jury going out for an hour, or half an hour, or two hours, looking at the confession, then coming back in and saying that is the end of it.  So that gives your Honours a sense of the context and issues and combatibility, if I may put it that way, of the trial. 

Your Honours, I wanted then, having, I hope, adequately articulated the point of the centrality of the evidence to reliability, go to where the Full Court dealt with it starting at page 243 and really is at 245 and 246 of the application book, paragraphs 332 and following.  Your Honours there is a debate in the Full Court, a debate we are not challenging, about which was the correct authority.  The court determined according to Gallagher’s Case.  We make no complaint about that.  At 245, paragraph 332, in dealing with the three principles to be considered in admitting fresh evidence, the Full Court said that whilst the evidence had been published prior to the trial – that is the new evidence – it is fair to say that no party was aware of it and they did not think that that was a reason to hold out the appeal.  At paragraph 333 the Full Court held that the second requirement was that the evidence was credible and capable of belief; clearly it was.

Thirdly, is where we take issue, your Honours, that the Full Court held that the question was whether it gave rise to a significant possibility if the jury had acquitted the appellant and the Full Court said that that requirement was not made out.  Your Honours, we attack what is at 335 and 336 because there we submit that what the Full Court has done, against the background that I have very briefly given to the Court, is to say that the confession was both accurate and reliable.  What the Court says in 336 is:

The most incriminating item of evidence against the appellant was his own confession.

That, of course, was the central debate at trial, namely, was this a reliable confession or not?  Where one has one piece of esoteric knowledge going to the reliability of the confession, that, in our submission, where evidence is incorrectly ‑ ‑ ‑

KIRBY J:   There were three possibilities.  One was that it was totally unreliable and concocted and made up from publicly available information.  The other was that it was a true statement of what he actually did; he hit her in a car and greatly regretted it, sorry for her parents and sorry for the people of Norfolk, and so on.  The third was, though it was not a truthful statement of what he did, it was a truthful admission which the jury could accept that he was involved in the homicide and was trying to represent the facts in a way that would be less incriminating.

MR GARLING:As to those three possibilities, your Honour, the first is the applicant dismissed his own confession and said it was just not true.  There was not a word about it that was true and gave an explanation.  It was a matter for the jury as to whether they accept it as to how they came about it.  Secondly, no one contended that the principal construct, being a car accident, the victim being put in the boot and the murder being occasioned in the boot, was correct.  No one supported that all.  On all hands that was rejected.  The third possibility, which is the Crown saying, well, actually he was confessing, but minimising his involvement, has as its ‑ ‑ ‑

KIRBY J:   That does happen.

MR GARLING:No evidence, by the way, your Honours, to support such a psychological theory, but the key to that is, you need the esoteric knowledge to stand that argument up and it is that esoteric knowledge which we submit ought not to have been before the jury.

KIRBY J:   You need the esoteric knowledge to confirm it, to absolutely prove it, but it still stands as evidence that a jury may give weight to, that a man confesses to a homicide.  It does not usually happen.  Most people are so horrified at the idea of terminating a human life that they would never agree to it.

MR GARLING:Your Honour, may I put against that – five seconds – the other side of the argument which is that courts know that overwhelmingly murders happen between people that knew each other, had some form of relationship or interaction or conduct, leave aside the psychotic maniac type style murder.  This was a case where the Crown’s case was no knowledge of each other or no relationship at all and a man of wholly good character.

KIRBY J:   Yes, but the nature of the blows, the variety of the weapons, the terror of the intrusion, the violence of the attempt by the deceased to

resist it, all seem to indicate some of what you call psychotic character of the homicide.

MR GARLING:Absolutely correct, your Honour, and no suggestion that the applicant had any of those features, none at all.  In fact, to the contrary, the Crown accepted he was a man of previous entirely good character and led no evidence of any health issue at the time.  I have gone too long, your Honours.  If the Court pleases, they are our submissions.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 11.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.14 AM:

GUMMOW J:   We do not need to call on you, Mr Frearson.

The applicant was found guilty by a jury of murder committed on Norfolk Island in March 2002. He was sentenced by Chief Justice Weinberg to imprisonment for 24 years. He appealed against the conviction. The appeal was dismissed by a unanimous decision of the Full Court of the Federal Court, reported in (2008) 248 ALR 710.

The application for special leave to appeal to this Court relies on two suggested errors by the Full Court.  The first is that the Full Court erred in failing to admit fresh evidence as to whether knowledge of the source of the black plastic sheet covering the body of the deceased was already in the public domain when the applicant referred to its provenance.  The second is a suggested error of the Full Court in failing to find that a miscarriage of justice has occurred.  The applicant refers to the decision of this Court in Mallard v The Queen (2005) 224 CLR 125 and, of course, the Court is conscious of the decision.

However, we are not convinced that there is a special leave point in the first propounded ground of appeal having regard, in particular, to the qualified way in which the police evidence was actually given about the black plastic covering.  As to the propounded miscarriage of justice ground, we are not convinced that this is reasonably arguable.  Of particular relevance to this conclusion is the evidence of the fingerprints of the applicant which were discovered on the black plastic covering, the presence on the deceased of glass fragments, a comparative rarity, the presence of DNA consistent with the deceased in the boot of the applicant’s vehicle and the arguably incriminating features of the recorded admissions made to police by the applicant, when he was first apprehended, indicating involvement in the homicide.

Special leave to appeal is therefore refused.

AT 11.16 AM THE MATTER WAS CONCLUDED