Noyes v The Queen

[2004] HCATrans 444

[2004] HCATrans 444

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B10 of 2004

B e t w e e n -

GRAHAM LENARD NOYES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 12.11 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear for the applicant.(instructed by Connollys Lawyers)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Walker. 

MR WALKER:   Your Honours, of the matters raised in our written submissions upon which I rely, could I go immediately to and concentrate upon the approach to the admissibility of the similar fact/query propensity evidence upon which so much turned at the trial and on the appeal.  At the outset, it is correct as my learned friend put it in the written submissions for the respondent, that an argument complaining of the treatment of the authority of this Court in Pfennig by the Court of Appeal in O’Keefe in Queensland, was not put in the Court of Appeal, and I do not concentrate on that aspect of the matter.  However, the importance of what was said and done in O’Keefe does not recede entirely.  The concentration, however, in this Court, ought to be on the way in which the Court of Appeal in Noyes dealt with Pfennig. 

May I take your Honours to the application book at page 71.  On that and the succeeding three pages, Justice Holmes deals with the argument as it was put, an argument which, in our submission, in this Court raises an ideal vehicle to attend to other passages apart from the well‑known ones described by Justice Thomas in O’Keefe as being “the four rather perplexing passages” where it was decided to depart from an ordinary or literal reading of the majority judgment in Pfennig. 

There are very important, closely related issues which were raised by Mr Martin, SC, then appearing for my client.  At page 71, your Honours will see that the issue raised by way of complaint against the admissibility of this evidence of the other two boys and conduct with them turned upon what might be called the inherent unreliability, as was put in submissions on admissibility, that is, before it had been led before the jury.

GLEESON CJ:   There was no question of concoction or possibility of concoction here, was there?

MR WALKER:   Your Honour correctly recalls that which is contained in paragraph 36 of Justice Holmes’ reasons at page 74.  Now that immediately raises the question whether concoction, with its suggestion of deliberate fabrication, is the only way in which disputed similar fact or propensity evidence can be subject to an adverse balance between probative value and prejudicial effect on the question of admissibility.  In our submission, in principle, it could not be the only reason because it is not only concoction which goes to the question of reliability, which in turn goes to the question of probative value.

The error, in our submission, perhaps culminates in paragraph [38], in a passage which we are bound to concede is carefully framed by her Honour.  But in paragraph [38] ‑ ‑ ‑

GLEESON CJ:   Just before you get to that, do you concede the correctness of what is said in the first sentence at [37]?

MR WALKER:   I am bound to concede that is an arguable position, your Honour.  Whether there is what I will call the “specific connection”, to use the language favoured in Pfennig, might have been the subject of dispute, but, for the purposes of a special leave application, there are undeniably the elements then contained in paragraph [37] which I am bound to accept give some force to the summary of them in the first sentence of paragraph [37].  There were, of course, all the differences that your Honours have seen remarked upon in Justice Holmes’ reasons as having been urged by Mr Martin, but these are matters of judgment and I am unable to say that there is a special leave point in the way her Honour approached that question, concurred in by her colleagues. 

However, in our submission, none of that ultimately would do anything other than point up the injustice of the reception of this evidence because of its prejudicial value.  If her Honour were wrong in the approach taken to the particular question raised of disputed propensity or similar fact evidence – and this was hotly disputed – given the special treatment said to be warranted for that subset of a special kind of circumstantial evidence in the majority in Pfennig.

Could I try to make the point as briefly as possible as follows.  In paragraph [38] Justice Holmes says, on page 74 of the application book, that she is applying the test on the basis of the evidence of the two other boys being accepted.  Your Honours will see that:

If the evidence of G and T were accepted –

That is a locution and a manner of approaching the question which would, if this was the applicable passage, be strongly and completely supported by what is found in Pfennig (1995) 182 CLR 461 at 481, where the Chief Justice and Justices Deane and Dawson, referring in fact to Hoch, quoted or paraphrased the passage where, about an inch from the bottom of page 481:

their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation –

et cetera.  However, when one comes over to the specific matter – critical in the present case – of disputed similar fact evidence, could I draw to your Honours’ attention the way in which the matter is dealt with at page 482 of 182 CLR just after the passage quoted halfway down.  Having said that:

Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged –

they then identify that its probative value lies in something different from that which applies in the case of undisputed evidence, namely, it lies, as Justice Holmes correctly pointed out: 

in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events –

and that must include the charged events, one imagines –

occurred. 

Then their Honours say: 

Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. 

A sentence, in our respectful submission, strongly and appropriately relied upon by counsel for my client below at both levels.  Now, that is a sentence which could make no sense if one said of disputed similar fact evidence that you approached the question of its admissibility on the basis “if accepted”, on the basis that it had been accepted.  It would not be possible to say of accepted evidence that it was of less probative value than conceded evidence.  Once it is accepted, it forms and has the same status of testimony upon which one proceeds to find facts, whether it had been contested or otherwise. 

So that is a sentence making it clear that the test for the admissibility, and this is, of course, before the trial in which the contest or the dispute is had about that evidence – at the admissibility level, one does not approach disputed such evidence on the basis that one assumes it has been accepted.  That would make nonsense of that sentence in their Honours’ reasoning.  That is not dealt with at all in the reasoning of Justice Holmes, in our submission.

One then, of course, notes the fact in page 483 of 182 CLR, when going back to deal with Hoch itself, that in the last sentence of that middle paragraph their Honours described the discussion and the way it was expressed in Hoch thus:

That was because the evidence in that case lent itself to that classification [similar fact] though, in the light of the possibility of concoction, it was held to be inadmissible. 

Now, that, of course, shows that something which is lying in the future at the point of the admissibility decision, namely, a successful challenge to the evidence on the basis that it was concocted, was, without being decided – Justice Holmes, with respect, was correct in pointing out Hoch was not about whether in fact the evidence was concocted, but whether the possibility of concoction affected its probative value at the admissibility stage.  Not in the minds of the jury, but at the admissibility stage. 

It is clear that the inadmissibility balance struck in Hoch came about because of what I will call a quality of the evidence detracting from the prospect of it being accepted.  That is what concoction does.  In our submission, as a matter of principle, there is nothing to be seen between concoction, in its detraction from the quality of the evidence, and thus its probative value, at the point of the admissibility balance being struck and the unreliability which was, with respect, convincingly drawn to attention by Mr Martin on behalf of my client, bearing in mind the plethora of circumstantial difficulties with accepting that the accounts – to use the word from Pfennig – the accounts, given apparently similarly in some respects, have a probative value which outweigh their prejudicial value.

Finally, in relation to the importance of this issue, bearing in mind the difficulties which the Court of Appeal in O’Keefe found in understanding the majority judgment so as to apply it in Pfennig, this is an ideal vehicle to raise the question as to what ultimately is the principle – as opposed to what their Honours call the mere exercise of a discretion – for the admissibility of such critical and important evidence in a case such as the present.  It comes back to the passage at 482 with which your Honours are very familiar, but raises it in a way that has not yet been the subject of any decision in this Court.

About an inch from the bottom, after the passage I had already referred to in page 482 of Pfennig, their Honours proceeded:

But the prejudicial effect of those facts may not be significantly reduced –

et cetera.  Probative value reduced, prejudicial value not reduced – this is the language of an altered balance.  The balance is that which is required in order to produce the application of a principle, rather than something resembling the exercise of a discretion, being the aim of the ratio decidendi in Pfennig, referred to at the foot of the paragraph continuing at the top of page 483 in that authority.

In our submission, this was a point fairly raised by the challenge that Mr Martin made to the admissibility of this evidence.  If the evidence was not admissible on the basis that the orthodox, absolutely standard collection of telltale impossibilities in those details which would otherwise have lent verisimilitude to stories, if that were correct, then this evidence would not have been before the jury.  If this evidence had not been before the jury, there is no doubt but that my client lost a very considerable possibility of acquittal, your Honours being aware, of course, of the immense length of time which had passed between the dates of the alleged offences and the dates of investigation and trial.

In our submission, that is a set of circumstances which makes this case an ideal vehicle because of the neat collection of matters already clearly addressed in Justice Holmes’ reasons.  It can be said fairly, with respect, that it is at the culminating point that her Honour made the error in relation to the way in which a trial judge should approach this question of probative value of disputed evidence for the balance to be struck, which determines the admissibility of such evidence.  It is not to be confused with an approach taken in relation to unsafe or unsatisfactory verdict, the evidence having been admitted.

For the reasons her Honour points out, when one considers in particular paragraph [30] on page 72 of the application book, this is a matter the argument of which and the importance of clear principle about which affects, in practical terms, the running of trials such as the present where there is obviously prejudicial effect in evidence, and where the probative value is sought to be raised in order that the balance may be struck.  It leaves only the question of principle, itself important, whatever the answer to the question be, whether concoction is a species which alone occupies the territory of an attack at the admissibility stage on the probative value of similar fact evidence or propensity evidence in cases of this kind. 

In our submission, given that the issue is framed by their Honours in terms of a balance between probative value and prejudicial effect, one must then simply ask the question whether, in principle, only concoction is a fit topic to be speculated or raised at the admissibility stage in accordance with the principles laid down by this Court. 

Nothing appears at all in the reasons of Pfennig to suggest that concoction was being used in that exhaustive sense, because it is, of course, in the nature of evidence and testimony that there are many ways – probably in most cases it will be some other way other than concoction – in which evidence is held to be unreliable so as to affect probative value.  That, for example, can be seen in the collection of provisions in sections 135, 136 and 137 in States other than Queensland, where the Evidence Act governs the question of discretionary admissibility.  There is no question that only concoction goes to the question of reliability and probative value. 

Your Honours, in our submission, that is a matter which answers two descriptions appropriate for special leave.  It is clearly of general importance, bearing in mind the difficulties illustrated by O’Keefe, that is, the difficulties of understanding the way in which one moves through the processes at a trial of considering the reception of similar fact or propensity evidence.  Her Honour Justice Holmes, and thus the Court of Appeal in this case, has very plainly stated the following position, that at that stage the trial judge is to assume that the disputed evidence is accepted, is not to embark upon any canvassing of its reliability. 

In our submission, that is a self-denying ordinance, which cannot be seen in other applications of the discretion to admit or not admit evidence with possibly prejudicial effect, where reliability, inherent or otherwise, will be a fit topic to be argued.  What the Court of Appeal has now declared in Queensland is, in effect, that one could not point to concoction as a possibility rendering the balance against admissibility unfavourable, and yet that, of course, is clearly contrary to Pfennig and Hoch.  It is for those reasons, in our submission, that the intervention of this Court is warranted, on a point which is narrow in relation to the factual record concerning it and a point which is very important to the practical administration of criminal justice. 

That is the first special leave attribute.  The second special leave attribute is that it obviously has enormous effect on the position of my client, convicted in a case where the use of that evidence was, it must be conceded on any view, very important. 

Your Honours, that leaves the other matters in the special leave application itself, which, in our submission, were and are independently important.  I need say no more than your Honours have already read in relation to the stay application.  In our submission, what fell out at trial in relation to the departure from particulars and the quite significant difficulties in relation to motor cars, the motor car evidence, was enough to show that there was ineradicable prejudice of a kind that no precaution at trial could eliminate from the position of my client. 

Then, of course, there is in itself the departure from particulars which your Honours see dealt with in our written submissions commencing at paragraph 3.10 on page 98 and following.  In effect, what her Honour Justice Holmes has held in relation to the question of departure from particulars is that although it behoved the Crown to act quite differently from the way it did act, and to be explicit in drawing to attention the declared apprehension – that is, declared on appeal, apprehension of the prosecutor – that the witness would in fact depart from the particulars, though she held that there had been, in short, a failure on the part of the Crown in relation to fair process to notify an intended change of or departure from particulars supplied, she said it did not matter because by the time the defence case opened, it was all clear and out in the open.

In our respectful submission, that is too late a time for such a matter to be the subject of a change in particulars being regarded as of no moment in the fair running of the trial.  This is a case which was absolutely typical for offences of this kind, charged at such a long interval of time after the alleged offence, typical in a respect which makes particulars more rather than less important, to be explicit and to be cleaved to throughout the criminal process, and S is, of course, the authority upon which we rely in that regard. 

This is a case, in short, where the confusion of alleged different episodes, in the choice it presented between evidence in chief, cross‑examination and particulars, gave rise to a real possibility that in relation to the essential question of credibility and reliability of the informants, my client has been deprived of a real possibility of acquittal.  We draw to attention in that regard the fact that he was acquitted on count four, a matter which rather strengthens – because of the discrepancy of evidence noted in relation to that before the jury – emphasises the possibility that did exist on the other counts.  May it please your Honours. 

GLEESON CJ:   Thank you, Mr Walker.  We do not need to hear you, Mrs Clare. 

We are of the view that having regard to the nature of the evidence in this case, there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed. 

AT 12.33 PM THE MATTER WAS CONCLUDED