Meizer v The Queen

[2003] HCATrans 791

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B55 of 2001

B e t w e e n -

LYELL GRANT MEIZER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 10.49 AM

Copyright in the High Court of Australia

MR A.F. MAHER:   May it please the Court, I appear for the applicant.  (instructed by Forest Lake Lawyers)

MR R.G. MARTIN:   May it please your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mr Maher.

MR MAHER:   Thank you, your Honour.  Your Honours, may I begin by firstly informing the Court, as we have informed the other side, that the only one of the three points in the statement of leave questions which will be advanced by me is the first point concerning the application of the test from Pfennig.  The reason for that, your Honour, is I have come lately to this matter and having regard to the summary of argument prepared by another person, it appears, with respect, that that is the point of general importance raised by this matter and I will not be making submissions on the other matters.

McHUGH J:   Yes.

MR MAHER:   Your Honours, to state it succinctly, in my submission, the point of general importance concerns the importance of the criminal law that joinder be exercised sparingly in sexual cases where the risk of prejudice is heightened and, in my submission, the Court of Appeal, in effect, read down the test of this honourable Court in Pfennig such that similar fact evidence was permitted to be led against an accused in a situation where it did not possess the requisite degree of cogency in that it was of general similarity, rather than being of particular similarity such that it should be admissible. 

The starting point for that submission is the case of Pfennig itself which is replete with cautions and warnings from members of the Court that propensity evidence is only admissible if it passes certain threshold tests and it really boils down to it that it must be sufficiently probative or strongly probative such that it is able to overcome any prejudice which it may create by its admission.

In the Court of Appeal decision, in my respectful submission, nowhere did the court turn their minds to the very points which, on the authority of Pfennig, they must, which is the strength of the similar fact evidence and whether it possesses the requisite degree of cogency or probative value to render it admissible.

It appears, in my submission, that the court have approached the exercise as almost one of discretion, which is not permissible, rather than the application of principle to the admission of the evidence and, in effect, allowed the jury to decide if, in fact, the similar fact evidence possesses the qualities which it must have.  In my respectful submission, the aspect and issue of admissibility is a different question to be addressed by the trial judge than the question of what a jury will make of that evidence ultimately.  The judge, before it is admissible, must decide that the evidence is capable of excluding inferences consistent with innocence.  That is a matter of admissibility.  It is for the jury to decide whether it, in fact, does so.

McHUGH J:   But what do you say about what appears in paragraph [30] of Justice Williams reference?  There he cites the Pfennig test as indicating the appropriate test. 

MR MAHER:   Yes, with respect to paragraph [30], your Honour, the problem is that the Court of Appeal did not consider whether the propensity evidence had to strongly support an inference that the accused is guilty of the offence charged.  It is not sufficient, in my submission, if the propensity evidence simply supports an inference, albeit a weak inference, that, yes, this is capable of being similar fact evidence; it may be the same person.

McHUGH J:   But what about [32]?  His Honours says in paragraph [32]:

there was no reasonable view of it other than that it supported an inference that the appellant was guilty of the Birt offences.

MR MAHER:   Yes, your Honour, that decision is based on, really, the matters raised at page 178 of the application book, where the court listed the factors which went to the signature.  In other words, these were the facts which the Crown said applied to all five complainants which pointed uniquely to the identity of the accused and the commission of the offences.  If I might respectfully take the Court to the matters listed at paragraph [7], a cursory glance will be sufficient to show that they are facts of general application.  In other words, all the complainants were working as prostitutes and the offender acting alone, the offences occurring at night, and the offender acted from a motor vehicle.  Those four facts are simply typical of ‑ ‑ ‑

McHUGH J:   Yes, but his Honour pointed out that was what the trial judge had noted, but then in paragraph [8] his Honour says:

But . . . the points of similarity did not end there.  At trial, and on appeal, the Crown referred to similarities in the actual sexual conduct with each of the complainants. 

Then (a) to (f) is set out.

MR MAHER:   Quite so, your Honour

McHUGH J:   Plus [9], which I would have thought was very significant.

MR MAHER:   Your Honour, in respect of paragraph [8] which your Honour has raised, it is wrong to suggest that those similarities were apparent in each and every complainant’s evidence because they were not; (a) to (f) are not taken from each complainant’s evidence.  They exist in some of the evidence but not in others.  They do not refer to similarities across the board of all five complainants:  (a) had no application to the first complainant, Pearce, or the last complainant, Hill.

Your Honours will be aware that, of the five complainants in this matter, the accused was acquitted completely in relation to Pearce and the jury could not come to a decision on the complainant Hill.  The jury acquitted on one count in respect of Birt and convicted on the remaining counts in respect of Birt, McLellan and Reading.

Your Honour, I should also point out that Birt’s case was essentially an identification case, whereas McLellan and Reading was essentially a consent case because the identity was not an issue which is another caveat from Pfennig which, in my respectful submission, the Court of Appeal did not pay sufficient regard to, the fact that there was a disputed substratum of facts here, whereas in Pfennig itself there could be no doubt that the appearance of the van at the site where the boy disappeared and the abduction and rape a year later, those were not contested facts.  But here the facts were contested across the board and those matters listed in paragraph [8] were not applicable to each and every complainant.  In fact, one can see, if one has regard to:

(f)   Selection of very young girls.

McLellan and Reading were 28, I think, and 27 years old.  That appears in his Honour’s summing up, so ‑ ‑ ‑

GUMMOW J:   Yes, paragraphs [9] and [10] are quite important, are they not?

MR MAHER:   Yes, paragraphs [9] and [10] would, in my respectful submission, go more to something distinctive, but the trouble is that if one has regard to this setting of prostitutes in Fortitude Valley, it is not a great leap of imagination to imagine that would be a fairly obvious pretence to say, “Look, I’m a police officer and you’ll be in trouble if you don’t do as I say”, that sort of thing.  So it is not as unique as it may appear on the surface, in my submission. 

If I might illustrate it this way, your Honour.  If these sorts of facts were applied to the situation of two women from different parts of Brisbane who were abducted by a man in a car and taken to a particular place who were not prostitutes, then it would be beyond argument that it would have sufficient cogency to be similar fact evidence because it could eliminate any innocent explanation and it could eliminate coincidence.  But here, the disquiet is caused by the fact that it simply cannot be eliminated that someone else could have also committed these offences. 

The jury were not satisfied in relation to the first complainant, Pearce, and it was noteworthy in her evidence that the person whom she described produced an actual police badge.  His Honour refers to that in his charge to the jury at about ‑ ‑ ‑

McHUGH J:   The driver asked for a discount and said if she did not give a discount she would be arrested, did he not?

MR MAHER:   That is on the second time, yes.  The first time – on both occasions with Pearce, page 78 of the judge’s summing up, a flip-type wallet was produced with “what looked like a police badge.”  Now, that was not the case in Birt which fell in between those two dates. 

So the simple fact is in Pfennig the Court was careful to explain that first you must eliminate the hypothesis consistent with innocence, which was that the young boy drowned.  Once that had been eliminated, the similar fact evidence could be received.  In this case, the Court of Appeal did not turn their mind to eliminating the hypothesis that simply someone else could have been guilty of these offences.  That, in my submission, is a serious matter.

Your Honour, in Pfennig all members of the Court were careful to state that “it is necessary to maintain an insistence” that the evidence have “a high level or degree of cogency”.  Your Honour Justice McHugh pointed out at page 529 that:

If the risk of an unfair trial is very high –

which, in my submission, this was with five complainants –

the probative value of evidence disclosing criminal propensity may need to be so cogent that it makes the guilt of the accused a virtual certainty. 

Now, by no means did the Court of Appeal turn their minds to that sort of quality of evidence.  They opined at page 178 in paragraphs [7], [8] and [9] that there were general facts and there were some similarities in sexual conduct and there were additional facts which the court concludes were sufficient to be admissible, but the court seems to be reading down the cautions in Pfennig by not turning their mind to how much sufficiency and what level of dissimilarity needs to be present before a fact will not be sufficiently cogent.

The court also do not seem to state in the Court of Appeal what strength the evidence must possess before it is admissible because at paragraph [8], to which your Honour has referred, there are various aspects listed, but the Court has not stated, “Well, these are not applicable to all of the complainants and they have varying degrees of importance in relation to each complainant” and whether, such as McLellan and Reading, the evidence was so uncertain that it may or may not have happened and was contested.

If I might just develop that somewhat, your Honours, McLellan and Reading gave evidence that on the same night, 11 June 1996, that they were with the accused person and that certain things happened.  It was put on the accused’s behalf that there were certain consensual sexual activity.  McLellan and Reading say it was not consensual at all and it was the pretence of being an officer and it was through intimidation that it occurred.  That case in no way concerned establishing identity.  Yet evidence was admissible in relation to Pearce, Birt and Hill about identity, about the sexual activities in relation to them, and that was held to be admissible in relation to McLellan and Reading when the issue was purely one of consent. 

In my submission, it is a dangerous aggregation of prejudice when so many complainants can be joined on a signature theory which the jury rejected and is, therefore, in my submission, somewhat of a diluting of the test in Pfennig and the warnings in Pfennig to which the court should have had regard.

In my submission, the facts in paragraphs [7], [8], [9] and [10] to which your Honours referred, put at their highest, simply suggest that the accused may have been guilty of the offences.  They certainly do not point with any certainty or with any overwhelming circumstance to identify the accused.  The fact is, in my submission, that the Court of Appeal decision shows that the court did not take the two‑stage step which Pfennig demands and say, “Well, is this evidence reasonably capable of excluding the possibility that someone else committed these crimes?”  Clearly, in my submission, it was not.  The jury, in fact, rejected the counts in relation to Pearce and so, therefore, they rejected the signature theory.

Your Honours, the application book also contains matters going to sentence, but I do not intend to pursue those.

McHUGH J:   Yes, thank you.

MR MAHER:   Thank you, your Honours.

McHUGH J:   Thank you.  The Court need not hear you, Mr Martin.

This case concerns the application of settled principles to the facts of the case.  The Court of Appeal referred to those principles.  The case raises no special leave point of public importance, nor do we think that there is any ground for supposing that in the circumstances of this particular case any miscarriage of justice has occurred.

Accordingly, special leave is refused.  The Court will now adjourn to reconstitute.

AT 11.05 AM THE MATTER WAS CONCLUDED