Murdoch v The Queen

[2007] HCATrans 321

[2007] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2007

B e t w e e n -

BRADLEY JOHN MURDOCH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 21 JUNE 2007, AT 9.49 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with my learned friend, MR I.L. READ, for the applicant.  (instructed by Northern Territory Legal Aid Commission)

MR R.S.L. WILD, QC:   May it please the Court, I appear with my learned friend, MS A.E. BARNETT, for the respondent.  (instructed by Office of the Director of Public Prosecutions (NT))

GLEESON CJ:   Yes, Mr Grace.

MR GRACE:   As your Honours would be aware, there are two challenges to the decision of the court below.  One concerns the application of the established principles of identification evidence admissibility to the facts of this case.  The second concerns the application of the proviso and the way in which the Court of Criminal Appeal of the Northern Territory went about that task.

If I could commence with dealing with the issue concerning the application of the proviso first.  Ground 5 of the grounds of appeal before the court below sought to challenge the learned trial judge’s instruction to the jury that the so-called “truck-stop lie” could be used by the jury as a consciousness of guilt lie.  This was the only suggested consciousness of guilt lie in the evidence in the trial and relied upon by the prosecution.  Notwithstanding that – and I will come to this later – the Court of Criminal Appeal in its application of the proviso determined that there was another consciousness of guilt lie that concerned the presence of the Red Rooster store in Alice Springs at the relevant time.

Could I take your Honours briefly to page 246 of the application book at paragraph [147] of the judgment of the court below.  You will see there that their Honours say this:

By this proposed ground the appellant seeks to challenge the learned trial Judge’s instruction to the jury that if they found the appellant told a lie about whether he was present at the Truck Stop, as alleged by the Crown, the lie could be used by the jury as evidence of a consciousness of guilt of the offences charged.

The Crown case was that the applicant’s presence at the truck stop gave him the opportunity in time and space to be at Barrow Creek at the time that the offences were committed.  The evidence of Dr Sutisno, the facial and body mapping expert, was very important evidence in this regard.  It was independent evidence, placing the applicant at the truck stop at the relevant time.  Her evidence was to the effect – not just to the effect, but she stated positively – that the man depicted in the truck stop video was one and the same as the applicant.  The court below, at page 252 of the application book, after dealing with ground 5, said this at paragraph [167]:

Mr Wild QC submitted that the Crown case was presented on the footing that the appellant’s presence at the Truck Stop gave him an opportunity, in time and space, to have been at Barrow Creek when the relevant events occurred there.

[168]  There is no substance in the proposed ground of appeal on the basis sought to be formulated by the appellant.  To the extent that this proposed ground may have an inter-relationship with the proposed Ground 14, that is an aspect that falls to be dealt with in that setting.

Now, ground 14 dealt with Dr Sutisno.  When it came to consider ground 14, the court simply just did not have any regard to the comments that they had made at paragraph [168] and did not consider the context in which the consciousness of guilt lie had been relied upon.

Could I next take your Honours to paragraph [300] at the bottom of page 309 of the application book.  There at the bottom of page 309 you will see the reference there to the technique employed by Dr Sutisno not having “a sufficient scientific basis”.  Over the page the court, in effect, restricted the application of Dr Sutisno’s evidence to similarities between the persons depicted in the truck stop video and the appellant, and said this at the second line, page 310:

It was evidence that related to, and was admissible as, demonstrating similarities but was not admissible as to positive identity.  Dr Sutisno was not qualified to give evidence –

The issue of credibility was a crucial issue in this trial.  The applicant gave evidence.  When he gave that evidence his denials of wrongdoing, his denials of being at the Barrow Creek site stood to be believed or disbelieved by the jury.  Any impact upon his credit was of course of crucial significance in the way the trial was run.  The lie about being at the truck stop, if it was proved – and Dr Sutisno’s evidence had the potential clearly to prove that lie – would have been the end of the case because if proved he was therefore a liar, that lie, as the judge directed the jury, being the only lie of the trial that impacted upon consciousness of guilt, that indicated guilt of the crimes charged.  It would be a short step if the jury was to take that route for the applicant to be convicted.

The definitive evidence of Dr Sutisno, therefore, was a very important aspect of the trial.  Coupled with this, the applicant, when he gave evidence, was hardly in a position of strength.  There was a strong case against him and any impact upon his credibility, however slight – and this was not slight – was going to have a marked impact.

GLEESON CJ:   What was the strongest part of the case against him?

MR GRACE:   The strongest part of the case was perhaps the DNA evidence.  The court below simply did not consider this issue in its application of the proviso.  It indicated it was going to, but it never did.  We say that that reveals a failure on the part of the court below to undertake its task in a proper manner.  Could I take your Honours to Festa briefly and Justice McHugh’s judgment in Festa (2001) 208 CLR 593.

HAYNE J:   What is the proposition you say you can get from his Honour’s reasons in Festa?

MR GRACE:   That in relation to issues of credibility, a court should be slow, where evidence has been wrongfully admitted which impacts upon credibility, in applying the proviso.  It is a short passage at paragraph 123 of Justice McHugh’s judgment in Festa.

GLEESON CJ:   You read it.  We do not seem to have a copy of it.

CALLINAN J:   Was Justice McHugh in the majority there?

MR GRACE:   Yes.  At the 10th line of that paragraph his Honour says:

Speaking generally, the court’s view of the evidence should prevail –

talking about the Court of Criminal Appeal –

except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case.  In cases of circumstantial evidence, for example, the court’s view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility.

CALLINAN J:   Mr Grace, did any of the other Judges in the majority say anything to that effect in Festa?

MR GRACE:   No, your Honour.  However, as your Honours are aware, there have been some later pronouncements than Festa, including in Weiss and yesterday in the matter of Libke where your Honours Justice Callinan and Justice Kirby joined in making some comments about the application of the proviso.

CALLINAN J:   We were in dissent.

MR GRACE:   Yes, you were in dissent, but you were the only members of the Court that dealt with the proviso, the other members being of the view that there was no error.  If I could take your Honours briefly to Weiss (2005) 224 CLR 300. At paragraph 45 the Court said this:

Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt.  What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the apellant’s guilt.  Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

Of course, in yesterday’s judgment your Honour Justice Callinan with Justice Kirby in the case of Libke v The Queen [2007] HCA 30 at paragraph 45 said this:

As it is put in Stokes v The Queen –

an earlier decision of the High Court –

an appellate court should only apply the proviso if the irregularity “could not reasonably be supposed to have influenced the result”.  If this cannot be ruled out, it may be impossible for a court to be satisfied that a substantial miscarriage of justice has not occurred.  What occurred here could not justify the negative supposition –

and so on.  Then at paragraph 46 your Honours went on to say:

Not only will there be cases in which it is proper to allow the appeal and order a new trial, even though the appellate court may be persuaded on the admissible evidence to the requisite degree of the appellant’s guilt, but also, as much more often will be the case, even after a careful examination of the record for itself, it will simply be impossible for that court to assess the impact of the irregularities on the fairness of the trial.  Ultimately, an appellate court may only apply the proviso if it is affirmatively satisfied that no substantial miscarriage of justice to the accused has occurred.  A significant denial of procedural fairness will not, of course, be the only occasion for allowing an appeal.  The reasoning of the Court in Weiss does not suggest otherwise.

HAYNE J:   Now, the Court of Appeal’s reasoning appears, does it not, at application book page 336, particularly paragraph [367]?

MR GRACE:   Yes.

HAYNE J:   That is the essence of the reasoning on the proviso, is it not?

MR GRACE:   Yes, however, that goes on on the next page and you will see there further matters related ‑ ‑ ‑

HAYNE J:   Where do you say the error lies in the chain of reasoning that is there displayed which begins from the DNA coupled with what their Honours describe as “the other evidence properly admitted at trial”?

MR GRACE:   Well, you have to go back two pages to page 334.

HAYNE J:   Yes.

MR GRACE:   You will see there under the heading “The evidence of the appellant”, it is there set out and I will not of course read that, but at paragraph [362] on page 335 their Honours say:

In our opinion the combined force of the evidence in support of the appellant being the person shown in the truck stop video, circumstantial though it is, is convincing.

Now, there what ought to have occurred was a discussion of the effect of Dr Sutisno’s evidence upon the fact of the applicant being at the truck stop.  You will see the next sentence in paragraph [362], “We do not accept the evidence of the appellant to the contrary.”  Then the view is reinforced by the DNA evidence, how that could follow is debatable.

GLEESON CJ:   But as appears from paragraph [362](a) “the conclusion that the appellant was the person” at the truck stop by no means depended upon the inadmissible portion of the evidence of Dr Sutisno.

MR GRACE:   It was part of the factual matrix that went up to establish him being there, but it was the only independent evidence.  The other witnesses who put him at the truck stop were witnesses whose evidence was sought to be impeached for one reason or another.  In fact, in relation to one of the witnesses, Hepi, there was a very strong direction given by the trial judge to the jury to be careful in accepting his evidence.

GLEESON CJ:   What do you mean by “independent”?

MR GRACE:   Independent, that is, having no connection to any of the parties to the case, being totally independent of the applicant and of the prosecution.  This was a scientist who was called to give evidence saying this is one and the same man.

GLEESON CJ:   I know why you say Dr Sutisno is independent, I am not quite sure why you say Ms Allan, Mr Johnston and Mr Hepi are not independent.  I am trying to work out what you mean by independent.

MR GRACE:   What I am saying is that they did not have a basis for impeachment of their evidence based upon a relationship with the applicant.  That is the basis upon which I qualify that.

Could I move on to the issue concerning the identification evidence.  There are two aspects to that.  The first concerns the identification through the Internet and the second concerns the identification of a dog which was said to have similarities to the applicant’s dog.  Now, the Internet ID is referred to in the application book at page 210.  In order to put the arguments in relation to these grounds in proper context, could I refer your Honours to the booklet that is titled “SUPPLEMENTARY SUBMISSION MATERIAL” and to pages 48, 49 and 50 of that book.  There you will see the Internet site that Miss Lees observed.  The circumstances were these.

In October 2002, the witness Lees was working in Sicily.  Prior to that there had been a discussion, about two weeks prior to that, she had been telephoned by Northern Territory Police to the effect that they had arrested a suspect; they believed they had the person, and there were some issues about DNA and the like that had to be resolved.  When she was in Sicily her friends contacted her and told her, “Look there’s a really good article on the Internet you ought to have a look at.”  So she had a look at the article, and that is the article.  When you read ‑ ‑ ‑

HAYNE J:   They said to her that “On the net they’re saying good things about you”.

MR GRACE:   Yes.

HAYNE J:   “About you”.

MR GRACE:   “About you”.

HAYNE J:   Not about the ‑ ‑ ‑

MR GRACE:   No, “about you”.

HAYNE J:   Yes.

MR GRACE:   And the article does say some good things about her, because the evidence at the trial was to the effect, there were headlines in – when this news came to the fore in England there were headlines in the daily newspapers in England “She told the truth”, because there had been some conjecture that she had not prior, and that was the context in which her friends had said “They’ve written some good things about you”.  So the Internet article is there set out, and I will not read it to your Honours.  You will see that the heading “Falconio family ‘relief’ at DNA link”.  It is clear that Mr Murdoch’s name is mentioned and it is clear when you get to the second page under the heading “Arrest warrant” and the fact that he had been arrested and certain things have happened.  Then you see his photo.

So this was the Internet identification that his Honour regarded as being spontaneous identification because she, Lees, gave evidence that “That’s him”.  When she saw it she said “That’s him”.  This is the type of identification evidence that of course this Court, as far back as Davies and Cody, in our submission, has railed against.

GLEESON CJ:   Your client declined an invitation to go in a police line‑up, did he?

MR GRACE:   Well, there was an issue about that.  There was a dispute about whether his solicitor had offered that at some stage.  But there certainly was not an ID line-up by the time of this Internet article, and ever.  Now, could I just briefly ‑ ‑ ‑

GLEESON CJ:   But this was not the case, was it, in which these less convincing methods of identification were used in substitution for a police line‑up.

MR GRACE:   No, it is not suggested as that.  Now, your Honours will recall that in Davies and Cody [1937] 57 CLR 170 at pages 181 and 182 the Court, in effect, railed against this type of suggestivity being presented to a potential witness in relation to identification. Later, of course, we had the series of Victorian cases of Burchielli and Williams that dealt with the same issue and, of course, in this Court in Domican and Alexander’s Case and other cases issues of identification have been discussed at length.

Now, could I take you to the next aspect of the identification evidence which is the dog evidence, which is in the same supplementary material at pages 52, 53 and 54.  Can I just identify what page 52 is?  Page 52 is the dog named “Tex”.  That was the dog at the Barrow Creek Hotel that the witness Lees first saw after her ‑ ‑ ‑

CALLINAN J:   Mr Grace, what was the evidence about her opportunity to make observations of the dog when she was being allegedly restrained?

MR GRACE:   She was in the cabin with the dog.  She was at close quarters with the dog.

CALLINAN J:   It was at night time, was it not?

MR GRACE:   It was night time.  There was a cabin light on at some stage.

CALLINAN J:   For a time, I suppose, the cabin light was on.  It was not on ‑ ‑ ‑

MR GRACE:   No, it was not on constantly.  It was on for a short period of time.

CALLINAN J:   She would have been very, very stressed at the time.

MR GRACE:   Yes, yes, there is no doubt about it.  But the circumstances of the ‑ ‑ ‑

CALLINAN J:   They are both blue‑spotted, or black‑spotted dogs, are they not?

MR GRACE:   Well, they are, but they are completely different, and just to help your Honours, 52 is the dog “Tex” at Barrow Creek, 53 is the dog in the “dogalogue” which was the ID parade, through photographic ID, that the witness was shown in England, and page 54 is the dog “Jack”, which is the applicant’s dog.  We say that the similarities are not there.  Secondly, that the circumstances in which the identification took place were so suggestive that that was the dog that was similar to the applicant’s dog so that his Honour ought to have, in the exercise of discretion, excluded that evidence.  We rely upon our written submissions for emphasising those aspects.

GLEESON CJ:   Yes, thank you, Mr Grace.  Yes, Mr Wild.

MR WILD:   If your Honours please.  Your Honours, perhaps I could take you first to something in relation to Dr Sutisno’s evidence at page 329 at paragraph [350].  It relates to the other witnesses that also identified Mr Murdoch at the truck stop.  In paragraph [350] their Honours say:

The evidence of the three witnesses to the effect that the appellant had particular physical characteristics similar to the man shown in the truck stop video was consistent, firm and in our view convincing.  The evidence of Dr Sutisno, in so far as properly admitted, lent support to the reliability of the evidence of these witnesses.

So what we had here was three witnesses, in addition to Dr Sutisno, in fact, primary witnesses in the sense that they all knew the accused man and all of whom said “This is a man that we know”.  They identified similarities in his movements and behaviour on the video and they all gave positive evidence from a Crown perspective that this was the same man.  So to that extent Dr Sutisno’s evidence was additional to it.  My learned friend used the expression “independent”.  Ultimately, although Mr Hepi had an axe to grind, it was suggested, there was no suggestion the other people were in fact anything but independent and knew Mr Murdoch very, very well.

Now, your Honour Justice Hayne said earlier, and we support what your Honour said, that the court’s conclusion, which is set out at page 336 in paragraph [367], provides the court’s path of reasoning.  In fact, the presentation I had prepared today was to put it to the Court on this basis, that there is a three-stage reasoning process undertaken there.  Firstly, that the blood on the T-shirt found on the victim, Lees, at the scene was that of the applicant here today.  The statistics on that were 150 quadrillion to 1.

GLEESON CJ:   Mr Wild, what were the circumstances in which, having regard to Ms Lees’ account of what happened, she might have come to have – or to put it this way, the applicant might have bled on her T-shirt?

MR WILD:   Yes.  The way in which she described the incident is that she was forcibly removed from the motor vehicle with his hands pushing her forward – she assumed his hands – pushing her across the seat and eventually out the passenger’s door onto the ground below and he landed on top of her, effectively, at that time.  So there was evidence from her of pressure from him from behind.  In fact, he tied her hands behind her back during the course of the episode.

So they were the circumstances in which the Crown suggested that the T-shirt had the blood put on it; the blood being wet blood, according to the scientific evidence, patchy, so wet blood.  Where it came from from his body is an unknown because, of course, we do not have Mr Murdoch apprehended for a year or so after this and no evidence as to any bleeding from him at all.  But the T-shirt that she was wearing had his DNA match on the back of it and the court and the jury was entitled to find – there was really no contest about this, except for the Red Rooster aspect – that that blood must have got there during the incident.  So that is the first finding the court makes, which they are entitled to make, which puts Mr Murdoch at the scene as it were.

That is what my learned friend was asked before by Justice Hayne in relation to the chain of events that followed, which is set out in the paragraph.  They go on to deal with the other factors, evidence that was available at the scene, which were consistent with the death of Mr Falconio, which was the second part of the conundrum, of course.

So there is proof that the applicant was at the scene and was the man who assaulted Ms Lees.  Then the additional evidence of blood on the road which matched that of Mr Falconio, his disappearance, the movement of the vehicle, all the other ancillary matters, finding of things on the roadway, the rescue of Ms Lees by the truck driver some hours later, all those things consistent with the death.

So we have him at the scene, we have a man dead and no other man at the scene.  That group of evidence together was sufficient from the court’s point of view to find that Peter Falconio was murdered and that beyond reasonable doubt the applicant was the murderer.

Now, it is not until we get to that stage, which really is all the Court has to be satisfied as, that we then go on to find that the evidence – this is at the top of page 337:

becomes overwhelming when the evidence of the identification of the appellant as the assailant by Ms Lees is taken into account.

So that is ancillary and additional evidence which is not necessary for the finding of guilt beyond reasonable doubt as far as the Court of Criminal Appeal was concerned, having examined all the evidence.  Then they go on to say:

That is sufficient to conclude that no substantial miscarriage of justice has occurred –

which is the criteria which the court was bound to follow.  As your Honour Justice Hayne said yesterday in Libke, that is the basis on which the court must decide these matters until some change comes from above, as it were.

CALLINAN J:   They do not mention in that paragraph the evidence about ownership of a pistol.  Was there not quite a lot of evidence by people, other independent people, that he probably travelled with and did own a pistol of the kind identified by ‑ ‑ ‑

MR WILD:   Yes, that was part of the circumstantial evidence, your Honour.  There was a whole ‑ ‑ ‑

CALLINAN J:   They do not even refer to that, but it is quite strong circumstantial evidence taken with other evidence.

MR WILD:   Yes, your Honour, indeed.  What I was going to say, they go on in the next paragraph to deal with other evidence which was also available which they did not need to rely upon to make a finding beyond reasonable doubt, which includes the evidence of the witnesses I spoke of before – Allan, Johnston and Hepi; the similarity of the vehicle which we have not discussed in terms; the presence of a dog; and, although my learned friend cavils with the way in which that evidence gets in, the essential part of the evidence the Crown relied upon is this man was in the habit of carrying a dog with him – now, it is not to say other people do not carry dogs – but this particular man carried a dog in his vehicle which habitually sat in the front seat, just as the witness Lees described.

CALLINAN J:   And had a silver handgun, which he probably which he probably travelled with.

MR WILD:   And he had a silver handgun, yes, your Honour, indeed.   There was some contradictory evidence about that as well, but he did have a silver handgun on evidence ‑ ‑ ‑

CALLINAN J:   Well, there is certainly evidence of that and it came from more than one person, did it not?

MR WILD:   Indeed, your Honour.

CALLINAN J:   And that he travelled with it.

MR WILD:   Yes.  There were changes of his appearance made after the incident, evidence given by his friends and acquaintances, and that was very significant in terms of the identification, which my learned friend complains about, by Ms Lees.  She is identifying a man clean shaven in the Internet as opposed to a man that she saw who had a Mexican‑style moustache, hair under a cap and a different appearance altogether.  However, many of the other aspects of his appearance were very common; his height, his size, his stooped approach, all of these things were given in evidence and, in our submission, made it inevitable that the jury would have convicted, but that is not the test here.  The test on the proviso, of course, is whether or not the Court of Criminal Appeal should have found there was a substantial miscarriage.  In our submission, there was no substantial miscarriage.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Wild.  Yes, Mr Grace.

MR GRACE:   Your Honours, I want to deal with the truck stop evidence just briefly.  The other people - other than the tainted witness, Hepi, who had an axe to grind, as Mr Wild has perhaps conceded – they said that the person depicted in the truck stop video was similar to the applicant, not that he was one and the same, which was Sutisno’s evidence.  The second matter is this.  It is all very well for the respondent to say in this Court “All that the court below had to deal with is the DNA evidence and that was sufficient.  That was game, set and match”.  But the reality was the prosecution case was far more involved and complex than simply relying upon the DNA evidence.  There were weeks of evidence in relation to the truck stop video issue.  There were weeks of evidence in relation to other issues which, according now to the respondent, may not have been necessary.

GLEESON CJ:   Presumably because when the prosecution presented their case they did not know what the defence case was going to be.

MR GRACE:   Nor were ‑ ‑ ‑

GLEESON CJ:   That happens time and again in criminal trials.  You might say the prosecution are over‑egging the pudding, but what the prosecution are doing is leading the evidence they have available in circumstances where they do not know what the accused is going to say.

MR GRACE:   Well, they knew exactly what the position was in relation to the DNA evidence and they knew ‑ ‑ ‑

CALLINAN J:   Also they have an obligation to the material evidence.

MR GRACE:   Yes, and the prosecution was very forthright in the prosecution of the consciousness of guilt lie that relied upon this truck stop video evidence.  Now, one would have thought “Well, why did they need to do so?”, but they did, and the impact upon it has now been seen.  What we say at the end of the day is that this is one of those residual classes of cases because of the way in which the prosecution ran its case.  We of course have adversarial proceedings; the prosecution runs its case and the defence meets that case.  The defence in this case ran a positive case as well, in terms of the applicant giving evidence.

So this is one of those residual classes of cases, we say, that falls within that class that is identified in Weiss and in Libke in which the Court ought not to have applied the proviso.  The failure of the court to consider Sutisno’s evidence in respect of the effect upon the consciousness of guilt lie is, in our submission, a flaw in the reasoning which can be corrected. 

Our submission is that if your Honours were of the view that there is merit in the argument that the court has failed to apply the proviso or failed

to consider the relevant factor in its consideration of the application of the proviso, that the Court might consider allowing the appeal instanter and remitting the matter back to the Court of Criminal Appeal to further deal with the matter in accordance with the law.  If the Court pleases.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take.

AT 10.24 AM THE MATTER WAS ADJOURNED

UPON RESUMING AT 10.28 AM:

GLEESON CJ:   We see no error in the reasoning of the Court of Criminal Appeal of the Northern Territory.  In our view there are insufficient prospects of success on the issues raised by the applicant to warrant a grant of special leave to appeal.  The application is dismissed.

AT 10.28 AM THE MATTER WAS CONCLUDED