Parker v The Queen

[2021] HCATrans 150

[2021] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S230 of 2020

B e t w e e n -

ANTHONY PARKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 10 SEPTEMBER 2021, AT 2.45 PM

Copyright in the High Court of Australia

KEANE J:   In accordance with the practice where the Court is sitting remotely, I will announce the appearance of the parties.

MR S.J. ODGERS, SC appears with MR T.F. WOODS for the applicant.  (instructed by Just Defence Lawyers)

MS P. McDONALD, SC appears with MR S.T. FLOOD for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KEANE J:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honours.  There is an application to dispense with the applicable time limit and ‑ ‑ ‑

KEANE J:   Is that opposed, Ms McDonald?

MS McDONALD:   No, your Honour.

KEANE J:   Very well, you have your extension, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  The issue raised by this application is whether the prosecution did, in truth, rely upon coincidence reasoning to which section 98 of the Evidence Act applied.  As your Honours no doubt appreciate, section 98(1) creates the coincidence rule which catches evidence that two or more events occurred to prove that a person did a particular act or had a particular state of mind by a process of reasoning that can be called “coincidence reasoning” or, using the language of the provision, “the improbability of coincidence reasoning”.  I will return to that provision in a moment.

In this case the prosecution relied upon a number of similar or, to use the language of the Crown Prosecutor in addressing the jury, “consistent events” – a finding of similar bags on different dates, the finding of discarded bag tags in similar locations, the similarity in the applicant leaving the secure area of the airport after the arrival of a flight from Santiago on a number of occasions, to draw an inference supportive of the prosecution case. 

The evidence of these similar events was summarised in a chart in exhibit A – and I understand your Honours have been provided with that chart.  I am not going to take you to it but, in essence, it had a number of columns of different dates, within the columns various events occurring which were said to be consistent events by the Crown.

There is no issue that the evidence was admissible for a purpose other than coincidence reasoning, but it has always been accepted by the Crown that it could not also be used for coincidence reasoning because of the operation of section 95(1).  That provision, just to remind your Honours, is at application book 121, and subsection (1) says:

Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

The issue in this application is whether the Crown Prosecutor did invite the jury to use the evidence for coincidence reasoning.  The Court of Criminal Appeal accepted an argument that the use that the Crown sought to make of the evidence did not involve coincidence reasoning.  The use, as formulated ‑ ‑ ‑

KEANE J:   Mr Odgers, the point you are advancing in this case as to the purpose for which the evidence was relied upon by the Crown is something that – is an appreciation of the Crown case and…..that the evidence that counsel at trial did not share.

MR ODGERS:   Your Honour, it is not something that is – of course, there was no notice given by the Crown that they intended to use the evidence as coincidence evidence.  The reasonable inference to draw would be that the defence counsel did not appreciate that it was caught, on our case, by section 98.

KEANE J:   Or it might be that it is just an indication that the point you are seeking to make is not one that leaps to the eye.

MR ODGERS:   Your Honour, ultimately we say we would persuade this Court that the evidence could only have been used by the jury in the way that the Crown left it to the jury for coincidence reasoning.  If we make good that argument, then failure of defence counsel to object really does not go anywhere.

KEANE J:   Mr Odgers, is that right?  When one looks at section 311.4, which is at page 139 of the application book, the prosecution may prove the element of the offence relating to the quantity of border‑controlled drugs by proving the defendant was engaged in an organised commercial activity.  Why is that not what the Crown was doing?

MR ODGERS:   Your Honour, I have not, for a moment, suggested that the Crown was not entitled to seek to prove that there was an organised commercial activity.  I have accepted that if they have established that, that would ‑ ‑ ‑

KEANE J:   How does the Crown prove an organised commercial activity if it is not to be permitted to prove frequent acts regularly occurring are unified by a commercial purpose?

MR ODGERS:   Your Honour, could you remind me where that provision was again because I just want to emphasise one aspect of it.  I think it was at 139.

KEANE J:   Yes, 139.

MR ODGERS:   Yes, that relates to quantity.  We accept that the evidence was admissible, and it was admissible to prove quantity and if the way it proved quantity was to do so by showing an organised commercial activity, so be it.  But, of course, the primary use of this evidence was not to prove quantity.  The primary use of this evidence relied upon by the prosecutor was to show that there was, in fact, a drug operation of which the appellant, the applicant, was a participant, that he was engaging in various acts which showed a modus operandi of him basically removing drugs from bags, taking the drugs out of the airport and handing them over to someone else who is part of the enterprise. 

That was the purpose, primarily, that the Crown relied upon, not to prove quantity, but to show that there was a drug importation that occurred, number one, and two, that the applicant was directly involved in each of those importations.

So, my answer to your Honour is, accepting that the evidence was admissible to prove quantity and accepting it was admissible in the way your Honour has identified, the question was could it also be used for the much more, in my submission, significant exercise of proving that there were implications and that the applicant was directly involved in them.

KEANE J:   And that he was a participant in the business of conducting these importations.

MR ODGERS:   Quite.

KEANE J:   By evidence of what he did from time to time that is consistent in each case with active importation as part of a business of importation.

MR ODGERS:   Yes, your Honour, but the nub of the application ‑ ‑ ‑

KEANE J:   None of that has anything to do with coincidence.

MR ODGERS:   That is what I was about to say, your Honour.  The only way, the only way in which you can logically reason from these similar events, is to say it is improbable that they occurred coincidentally.  It is improbable that they occurred without a connecting cause.  It is the application of probability to the occurrence of those separate events which permits the inference that there was a connection, that there was a business of importing drugs and that the applicant was directly involved in it.

To finish the point, your Honour, the reasoning must be the kind of reasoning that section 98 focuses upon.  If that is right, then since the Crown had not sought to use it for that purpose, but if that is how the jury were invited to reason, it necessarily followed that there had been a breach of 95 and necessarily a miscarriage of justice because even if defence counsel did not pick up the point, the jury was being invited to engage in reasoning which was plainly prohibited.

KEANE J:   Can I ask you, in development of what you have just said, to point out what is wrong with paragraphs 79 to 82 in Justice Hulme’s reasons at page 80.

MR ODGERS:   Yes, of course.  I am at risk of repeating myself a little, but I will do it this way, your Honour.  In my submission, the only way in which the evidence of similar events logically supports an inference that there was an ongoing drug importation scheme, a syndicate, of which the applicant was a member is to reason that it is unlikely that the events occurred coincidentally.  It is unlikely that they were unconnected.  It is likely that they were connected to a system of importing drugs and showed how the system operated.  To use the language of the Crown Prosecutor at the trial, they showed a “consistency of approach” that the jury might call a “modus operandi”.

The Crown said this is the use you could make of the evidence to show a modus operandi, to show a method of operation and the only way, I respectfully submit, that you can logically draw that inference is to reason by way of improbability of coincidence.

KEANE J:   Can I suggest that it is not to reason by way of improbability of coincidence, it is that the regularity and frequency tend to prove the business.

MR ODGERS:   I can only say, your Honour, the regularity ‑ ‑ ‑

KEANE J:   That is not about proving the likelihood that one event will occur because it has happened before.  It is about proving that your client was engaged in a business.

MR ODGERS:   Your Honour, in the case of Falzon this Court held that evidence in that case showed that the offender was involved in the business of selling drugs.  But the evidence in that case was the finding of cash and you could draw an inference from the finding of cash to show that he is in the business of drug trafficking.  That does not involve coincidence reasoning, and nobody suggested it did.

Indeed, in the present case, the finding of cash at the applicant’s residence supported an inference that he was involved in drug importation.  There is no getting away from that.  But when one looks at exhibit A and the table of events and asks how is it relevant that there are all these separate events – take the major example, that after a flight arrives some time later he departs the airport – he testified the reason he departed was he going to buy Kentucky fried chicken, but let us put that to one side – this occurred on multiple occasions.

One possibility is these events are completely unconnected.  It is a “coincidence” – to use that word in its normal sense.  There is no connection between them.  It just so happened that he was going off to leave the airport for some reason, innocently.

But the Crown was saying, no, no, this all happened on a regular basis.  It is strikingly similar – that is my language, not theirs, but that is implicit – so similar that you conclude that there was a reason, a connecting reason as to why he left the airport.  What is the connecting reason?  He must have been taking drugs which had arrived on that flight.

Combine that with all the other similar events, the consistent events, as the Crown Prosecutor put it, you can conclude from that that there is a modus operandi.  What is the modus operandi?  Drugs arrive on a plane.  He collects them from the oversized luggage at a particular part of the airport.  He then drives out of the airport, drops off the drugs and returns.  That is his modus operandi.  How do you reason to that?  Answer:  it is improbable that these events occurred coincidentally.

In my submission, it is an entirely different situation from the finding of cash, for example, in Falzon or, indeed, the cash in this case where one is not reasoning based on improbabilities of events occurring coincidentally, but you are simply saying you are involved in cash, therefore it is a business, therefore it is likely that you were supplying drugs.  That is my answer to your Honour’s question.

That is the core of this application.  In my submission, it raises a question of general importance in many criminal trials because if we are right what will happen is the prosecutor, in similar cases where there are similar events being relied on, will say this is not coincidence evidence.  It is evidence showing involvement in a criminal enterprise from which you then conclude he is guilty, not coincidence reasoning.

I have given the analogy of the High Court’s decision in Perry which was multiple alleged poisonings under the common law.  Of course, in that case, the High Court accepted that the similar‑fact rule applied to that evidence – similar‑fact rule is, of course, another way of saying the coincidence rule under the Evidence Act. 

My respectful submission is if the Crown’s argument, which succeeded in the Court of Criminal Appeal, is permitted to stand, then nothing would prevent a prosecutor from saying in a multiple poisoning case, we are not relying on coincidence reasoning, we are saying that the accused was involved in a poisoning enterprise.

GLEESON J:   Mr Odgers, did someone suggest that these events were coincidental at the trial?

MR ODGERS:   Yes, well, of course, the whole defence case was that there was an innocent explanation for him leaving the airport.  He testified that there was an innocent explanation.  It just so happened, on that defence case, that he went off to purchase Kentucky fried in a period of time soon after the arrival of the flight.  So, the defence case was completely coincidental, completely unconnected, had nothing to do with the arrival of the flight from Santiago.  My answer to your Honour is yes, that was the defence case.

Your Honours, returning then to the judgment at page 80 of the application book, the Court of Criminal Appeal has accepted that using the evidence to show that he is a member, an active member of a syndicate with a role of importing cocaine into Australia, his Honour and the court concluded that did involve coincidence reasoning. 

My respectful submission is it is inescapable, that you can only reason from the similar events to that conclusion if you have concluded that the events did not occur coincidentally, that they were connected.  They must have been connected, therefore, they were connected because there was a drug importation scheme of which he was an active member.  You could see his modus operandi.  Therefore, he is guilty.

KEANE J:   That is because the notion of connection is probability.  Probability is only connection – or improbability is the only connection.  Here, unlike the kind of example you are offering us, but like a case like Falzon, the connection is not probability.  It is not mathematical.  It is proof of involvement in a business and ongoing participation in the business.  That is where the unity comes from.  That is where the connection comes from.  It is not some sort of probability reasoning.  It is because he is doing the sorts of things he does in a business, not because he is going off to get KFC.

MR ODGERS:   Perhaps I have not made myself clear, your Honour.  I accept you can prove he is in a business.  The question is how does it prove he is in a business?  How do you get from all of these separate events to the conclusion, the inference that he is in a business of importing drugs.  I respectfully submit ‑ ‑ ‑

KEANE J:   He does things that are necessary to import the drugs in a particular way on regular occasions and in the upshot he is found with $5.7 million worth of cash in his house.  That is how you prove it.

MR ODGERS:   I understand that.  Your Honour, nobody has suggested that the finding of the cash was coincidence evidence.  That is a separate issue, with respect.  When one looks at the table there is nothing in the table, of course, about him doing anything in relation to drugs.  It is rather that there is a series of events – arrival of a flight on a particular time, the presence or otherwise of certain kinds of luggage, the finding of tags in certain locations and, most significantly, him leaving the airport for various periods of time afterwards.  How, I ask respectfully, does one move from those events to a conclusion that there is a business of importing drugs.  The only way ‑ ‑ ‑

GLEESON J:   I think what you are saying is that an effort to prove a system necessarily involves an effort to disprove the absence of a system.

MR ODGERS:   It necessarily requires an assessment of the probability of the events occurring without connection, i.e., the probability of the events occurring without a system, without something connecting them.  That is the only way.  If the probabilities point to a conclusion that there is a system, well, so be it, but then that is coincidence reasoning and you have to apply the rules.  You cannot avoid it by saying it just does it.  You have to ask, how does it do it?

KEANE J:   That contention we cannot accept consistently with Falzon, even though Falzon was concerned with tendency reasoning rather than coincidence.

MR ODGERS:   My respectful submission to your Honour is Falzon really does not – is not a case where anybody argued that it was coincidence evidence.  I have respectfully submitted to your Honour it is an entirely distinguishable case, because it – I accept in that case it was not coincidence evidence.  I accept in this case that the finding of the cash is plainly admissible for a non‑coincidence reasoning basis, but we are not talking

about the cash here.  We are talking about all these other events.  May it please the Court, those are my submissions.

KEANE J:   Thanks, Mr Odgers.  Yes, Ms McDonald.

MS McDONALD:   Thank you, your Honours.  Your Honours, we would first emphasise that the evidence as admitted by the applicant was relevant for non‑coincidence reasoning purposes.  Your Honour has picked up its relevance for proving the element of quantity relying on section 311.4 of the Code.  May we also emphasise that it was relevant in respect of the use that the jury could make of the $5.37 million of cash found at the applicant’s home when a search warrant was executed in that the applicant gave evidence that the receipt of the money in a sense was innocent, that it was from an ex‑boss, that he would hold it on the basis that he would get the benefit, that is a loan.

Now, to rebut that evidence or defence by the applicant, the evidence of the fact that the Crown went to the jury that it was a business was relevant.  It is also relevant, for the very fundamental point, that as the Crown emphasised in the jury trial, this was a circumstantial case and it was put to the jury that the circumstances embraced all circumstances that arose in respect of the three counts before them.

This was the way the Crown opened.  It was the way the case was argued.  Indeed, it was evidenced in the fact that her Honour the trial judge made a reference in her summing‑up to the cross‑admissibility of the evidence and provided an appropriate direction in the circumstances of how the Crown ran the case that the jury should not engage in reasoning that because you may find the applicant guilty of one offence or one count, he is necessarily guilty of the other counts.

The fact that the parties and also the trial judge turned their mind to cross‑admissibility, agreed with that appropriate direction but as your Honour noted, nothing from the defence at trial about a concern with coincidence reasoning, but also no concern by a very experienced trial judge and also nothing raised by the Crown itself.  So, it is a matter that at trial did not trouble anybody and appears to have only arisen on appeal before the Court of Criminal Appeal. 

The other aspect of relevance and use of particular evidence under that overall submission that it was relevant to circumstantial evidence is that when one drills down to the particular elements of the various counts, for example, the element in the third count that the applicant had imported a substance, in those circumstances where the drugs were seized on the tarmac before they were removed and went anywhere near the relevant carousel, which was referred to – or evidence was led about – the Crown had to prove that the applicant imported a substance and the way it did that was to rely on the fact that in its submission the applicant was involved in a business.  That is the business of being part of a syndicate of importing the drugs – or the border‑controlled drugs from South America.

So, for those various reasons and as admitted by the applicant in this application, there were a number of different purposes that the Crown utilised the evidence for that did not involve coincidence reasoning.  In our submission, our learned friend’s application, the basis of it is very narrow.  It is in circumstances where the Crown is, legitimately, in our submission, putting to the jury that the applicant was involved in the business of drug importation.

Where events and circumstances are identified it is submitted that they are similar, and this can lead to an inference being drawn by the jury that it is involved in the business of drug importation.  Those facts in isolation are sufficient for the possibility of the jury being invited to engage in coincidence reasoning.

In our submission, it is a flawed application because one does not - should not look at it in isolation.  One has to look at the Crown case at trial, the facts that were alleged, how the evidence was used, what it went to prove, what inferences were sought to be drawn and, in those circumstances, our submission is that there was really no possibility that the jury would have either been invited – and it must have been impliedly because it was not done expressly – impliedly to engage in prohibited coincidence reasoning.

As your Honour Justice Gleeson inquired, from the Crown perspective there was no reference to coincidence reasoning.  As my learned friend indicated the defence case was overall an innocent explanation but even in that context it did not arise or was considered that the possibility of the jury engaging in the prohibited reasoning may occur and appropriate directions being sought or raised in any way before the court.

So, in those circumstances, our overall submission is that the reasoning as demonstrated by his Honour Justice Hulme in the Court of Criminal Appeal, that your Honour Justice Keane indicated at paragraphs 79 and 80, was sufficient to determine this particular matter and, given that in a sense it is a quite narrow point or argument made in isolation from the particular facts and circumstances of the case, it is not an appropriate vehicle, in our respectful submission, for the granting of special leave.  If your Honours please.

KEANE J:   Thanks, Ms McDonald.  Mr Odgers, anything in reply?

MR ODGERS:   Your Honours, briefly.  It is narrow only in one sense, that the evidence was admissible, but the question is how the jury were invited to use it.  The Evidence Act very explicitly prohibits use of this kind of evidence unless the requirements of 98 and 101 are satisfied – notice and findings of significant probative value and balancing tests and, indeed, even if it is admitted, it is well established that proper directions need to be given.

Section 95 says, even if it comes in for some other purpose, the rules still apply.  That is not narrow.  That reflects an important part of the protections that the law of evidence gives to accuse people in criminal trials.  In this case it is not satisfactory that a prosecution which plainly very heavily relied on all of this evidence of similar events – it was the core of this case and the Court of Criminal Appeal has accepted that it was indispensable to rely on all of these similar events to prove guilt of each of the counts.  The evidence was indispensable. 

The question raised by this application is, even though the prosecutor never uses the word “coincidence”, he never says it is improbable that they occurred coincidentally, is the only logical use of the evidence to infer that there was a business of importing drugs – is the only way you can get there by coincidence reasoning, in which case all the safeguards apply.

That is not a narrow question because there is always the danger that prosecutors will seek to evade the application of the rules relating to tendency evidence, relating to coincidence evidence by simply labelling the evidence as something else.  That is not tendency, it is not coincidence, it is proving a business so, therefore, the rules do not apply.

This Court has never yet, with respect, looked at coincidence evidence in a criminal case.  It has, on a number of occasions, looked at tendency evidence.  But similar issues arise for both.  The core one is an evasion of the rules by labelling the evidence as something else.  I appreciate that your Honour Justice Keane may take the view that it was not coincidence evidence, but, in my submission, there is a very real issue – a reasonable argument that it was, and it was being relied on for coincidence reasoning.

In my respectful submission, that issue is of sufficient importance, both for this case and more generally, for working out the limits of coincidence evidence so that prosecutors, defence lawyers and judges know what in truth, when in truth coincidence evidence is being adduced or sought to be used so that attempts to, with respect, evade the rules will not succeed. 

So, it is important.  There is a real issue in this case and I respectfully submit even if you characterise it as narrow, it is of such importance that there should be a grant of special leave.  May it please the Court.

KEANE J:   Thanks, Mr Odgers.  The Court will adjourn briefly to consider the course it will take in this matter.

AT 3.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.21 PM:

KEANE J:   In our view, the decision of the Court of Criminal Appeal is clearly correct.  Special leave should be refused.  The application is dismissed.

The Court will now adjourn to 2.15 pm on Tuesday, 5 October.

AT 3.22 PM THE MATTER WAS CONCLUDED