Previte v The Queen

[2005] HCATrans 792

[2005] HCATrans 792

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 2005

B e t w e e n -

IAN DOUGLAS PREVITE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 1.22 PM

Copyright in the High Court of Australia

MR B.G. DEVEREAUX:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid Queensland)

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

KIRBY J:   Yes, Mr Devereaux.

MR DEVEREAUX:   Your Honours, an order is sought that compliance with the time limit be dispensed with.  I read in that regard the affidavit of Tim Harland of 17 May 2005.  The delay was something like 11 days.

KIRBY J:   Yes.  Is there any objection to that being granted?

MRS CLARE:   No, your Honour.

KIRBY J:   Yes, very well.

MR DEVEREAUX:   Thank you, your Honours.  Your Honours, special leave should be granted in this case because it provides the opportunity for the Court to make plain what was said implicitly in Adami v The Queen (1959) 108 CLR 605 at 618. I will take your Honours to that later. Before comparison of handwriting becomes a matter for the jury, at least where objection is made to the evidence, the trial judge must first decide whether the disputed writing is presumptively attributable to the accused.

In this case the Court of Appeal of Queensland purportedly on the authority of Adami and the Evidence Act (Qld) section 59, which is similar to provisions in other jurisdictions, confirmed it is correct what the trial judge did which was to admit the evidence of the disputed handwriting and sample handwritings and the opinions of two experts without first considering and deciding that prima facie the disputed writing was attributable to the applicant.

The disputed writing in this case was a confession written on a picnic table in a public park.  It was of course necessary for the Crown to connect that writing to the applicant before it could be admitted against him.  The Crown sought to, as I have said, ultimately did lead the evidence of the writing, some samples and the expert’s opinions.  May I before going further into what actually happened in this case take the Court to the decision in Adami v The Queen, perhaps in a little detail.

HEYDON J:   Just before you do can I just ask you this, your point, basically, is that the evidence was not relevant, is that not so?

MR DEVEREAUX:   Yes, it is.

HEYDON J:   That is your point?

MR DEVEREAUX:   That is so, your Honour.

HEYDON J:   If one expert says the handwriting was that of the accused and another expert does not, that conflict does not make the evidence irrelevant.

MR DEVEREAUX:   No, it does not, your Honour.

HEYDON J:   The jury could have accepted one or the other.

MR DEVEREAUX:   The argument in this case is what should have happened in the circumstances, particularly where such a strong and persistent objection was being made to the evidence, it was incumbent on the trial judge to assess it for himself to decide whether this evidence had even a modicum of probative value which is necessary before it is relevant and therefore admissible before deciding whether it should go to the jury.

HEYDON J:   Do we have a ruling from Justice Dutney?  Did the judge give a short judgment on the point?

MR DEVEREAUX:   The judge did and I have put in my outline at paragraph 15 ‑ ‑ ‑

HEYDON J:   Trial transcript, page 28, lines 22 to 32.  That is page 168 of the application book is where we find paragraph 15.2 of your written submissions and they refer to, it seems, something that the judge said.

MR DEVEREAUX:   Yes.  The argument started out, I should make plain, as an objection to the evidence of the particular expert but the argument did develop into one about all of the handwriting evidence, including what was written on the plank of wood.  His Honour was told about this Court’s decision in Adami and other cases and reached a point where his Honour considered that if indeed the piece of wood was admissible for the jury’s consideration then that, in effect, was the end of it, then came to these four relevant considerations, that the applicant – other evidence showed the applicant was involved with the death.  That is his confessions.  The disputed writings spoke of the circumstances in which the death occurred.  There was one expert who said that there was a similarity and the other expert who said nobody could make the call.

My submission is, at best, the third of those which is that there was one expert who was prepared to say that there were some similarities.  It is the only of those four considerations that could have led the judge to admit the evidence in this case but the judge did not do his own assessment of the evidence.  The judge did not look at the sample handwritings and the disputed handwriting.

HEYDON J:   It is very exceptional in the law of evidence for judges to make assessments of a factual kind for themselves before admitting evidence because it is the jury or the judge as a trier of fact that does that sort of thing.  Once there was some evidence, namely, Mr Hettiararchchi’s evidence which might be flawed, but there was some evidence, is it not open to say that implicitly that could rationally affect the assessment of the probability of the existence of the fact in issue and therefore be relevant?

MR DEVEREAUX:   Only, I submit, theoretically, and what was called for was the judge to look at the evidence and make a prima facie assessment of it.

HEYDON J:   I cannot accept these criticisms of Justice Dutney unless I see the actual judgment of which you are complaining.  You are criticising him for failing to go through a certain mental process.  One cannot make that criticism without seeing the external evidence of that mental process.

MR DEVEREAUX:   Yes.  There was no separately written judgment in this matter.  It seems that the argument was raised – and not at a pre‑trial hearing – no witnesses were called, the judge was referred to some of the transcript of evidence in the committal hearing and the judge was for the first time presented with relevant authorities and effectively made the decision that I have outlined and I concede that the argument is not before the Court but, on the other hand, I put that much in my outline and I do not understand an issue to be taken with it by the respondent.

HEYDON J:   You say that there should have been evidence‑in‑chief, as it were, from both experts and such cross‑examination as the parties wanted to engage in?

MR DEVEREAUX:   If necessary for the judge to make his assessment of it, yes.

HEYDON J:   Where does it say that in Adami v The Queen?

MR DEVEREAUX:   May I take your Honours to it.

KIRBY J:   By the way, why do we have Crofts?  What has Crofts to do with the case?

MR DEVEREAUX:   I do not know.  My learned friend put Crofts in.

KIRBY J:   I see.

MR DEVEREAUX:   I think the point is that even if evidence was admitted which should not have been admitted, the question for an Appeal Court is to decide whether that was offered in miscarriage of justice, but I will not take that any further.

KIRBY J:   Yes.

MR DEVEREAUX:   Your Honours, Adami v The Queen is No 7 in the book of authorities.

KIRBY J:   Yes, we have that.  Where are you referring?

MR DEVEREAUX:   I will take your Honours in a minute, if I may, to page 618 which is the second last page of the report.  May I first set out the facts a little bit?  The applicant in Adami was charged with two counts of forgery and two of uttering.  The documents that were forged and uttered were withdrawal slips of the Commonwealth Bank.  They were dated 5 December and 9 December 1958.  Adami’s sample handwriting was available and became an exhibit, exhibit N.

It emerged during the trial that there had been three other withdrawals from the same bank account and they were on 3, 4 and 17 December and those five withdrawals over that short period of time effectively cleared the account.  The judge’s purpose in admitting those other three withdrawal forms seems to favour Adami by reasoning that the bank’s failure to complain that those other three were forgeries undermined the Crown case that the two, the subject of the charge, were forgeries and that the five – this Court in a joint judgment held that the three other forms were admissible against Adami because a careful comparison of the three withdrawal forms, with exhibit N, suggested it was a reasonable conclusion that they were all in the same handwriting.

KIRBY J:   That does not seem to be a general principle.  That just seems to be a conclusion relevant to that case.

MR DEVEREAUX:   Yes.

KIRBY J:   Where is the statement of the principle?

MR DEVEREAUX:   On page 618, about five lines from the top the Court says:

Assuming that it was open to the judge to treat all five withdrawal forms as presumptively attributable to the prisoner because of the learned judge’s view of the similarity of all five withdrawal forms or perhaps more precisely of the three the admissibility of which is now in question, it seems to have been open to the learned judge to admit them in evidence on this footing and submit them to the jury.

It is implicit, I submit, that this Court is saying it is for the judge to examine the materials and decide whether it is presumptively attributable to the prisoner and if so then to submit it to the jury.

KIRBY J:   Yes, but Justice Heydon’s point is still good, is it not, that it is not for the judge to usurp the function of the jury.  The judge stands there to exclude matter which could not possibly be accepted by the jury as relevant, but if in this case you have one expert saying that it is the writing of the accused, then there is some basis on which the judge is bound to say it is therefore relevant and, subject to other exclusionary rules, should go to the jury.

MR DEVEREAUX:   Yes.

KIRBY J:   Chief Justice de Jersey said it would have been better if it had not gone in but it did go in and therefore the question we are asking is did it cause a miscarriage of the trial.  Then that takes you to looking at the directions the judge gave and those directions were very strong against the use of this material.

MR DEVEREAUX:   My submission is, had the judge conducted the exercise, which I say the law requires, it is tolerably clear that his Honour may have had the view at the start of the trial of the evidence that the directions betray.

KIRBY J:   I understand that submission but did counsel at the trial say that he wanted to have an examination on the voir dire or ruling separate from the jury or in advance of the case or during the case?

MR DEVEREAUX:   Yes, counsel raised this issue at the start of the trial before – in the absence of the jury and sought the exclusion – specifically, the submission was the exclusion of the evidence of Mr Hettiararchchi, but as I said before, it became a more general argument about the admissibility of the handwriting evidence – all of it.

KIRBY J:   Given that the judge had before him, presumably, the written reports which indicated the opinion of an expert that it was the writing of the accused, in those circumstances it would have been very difficult for the judge there and then and in advance of hearing the full evidence and the cross‑examination and so on to have excluded it from the jury, it seems to me.

MR DEVEREAUX:   Yes, and again I am speaking of things that are not in the application book, for which I apologise, but there was a question during the pre‑trial discussion about a further report to come from Mr Hettiararchchi, so even at that stage all of the evidence was not in, as it were.

KIRBY J:   But you cannot get over the fact that there was evidence from the document examiner, the plank examiner, to the effect that this was the writing of your client and if there is that evidence then that is relevant.  It may not be very strong evidence and it became weaker as the trial progressed but it is relevant and therefore – I mean, it is a very unusual thing to find that plank and to find that statement.  In those circumstances, I think it is a bit hard to say that the judge erred in admitting it.

MR DEVEREAUX:   Your Honours, the submission to get over that hurdle is that a proper examination of the evidence at the start of the trial would have disclosed the true quality of that opinion and would have disclosed a clear indication to the judge about the prospect of the jury ever being able to be satisfied to the requisite standard that the writing was the writing of the applicant.  It should not be forgotten in all this that in this case the actual writing was being tendered as a confession.

KIRBY J:   But you accept, do you not, that the primary way in which the Crown presented the case at the trial was in reliance on the confessions of your client, including the police?

MR DEVEREAUX:   That is so, and there were confessions to another prisoner and to the police and there was the plank.

KIRBY J:   Yes.

MR DEVEREAUX:   Now, what must not also be forgotten is that only this plank – this plank is the only confession of what the judged called intentional murder.  The Crown case was put to the jury in two ways, either as intentional murder, meaning that the applicant lifted the deceased and pushed her over the bridge or what is called felony murder, meaning that in the circumstances of this case he flung her or swung her in the struggle for the handbag with the result that she went over the railing of the bridge.

Now, only this piece of writing speaks of the manner in which the deceased went from the bridge.  Only this piece of writing is a confession to intentional murder.  It was a crucial piece of writing and it was a crucial piece of evidence.  It is not a simple answer to this argument to say that it did not matter very much if this writing went in.  The judge warned the jury that it was perhaps difficult for them to be satisfied beyond reasonable doubt about authorship on the basis that there were overwhelming and compelling admissions made by the applicant to the police and to the other prisoner because those other admissions put him at the scene and perhaps put him as a person guilty of causing the death that only this confession was one of intentional murder.

Having said all those things, I have covered as much of the submissions as I do wish to make.  Your Honours, may I reserve for reply, if necessary, any need to descend into the detail of the evidence.  I do not purport to do that now.  I trust it will not become necessary.  Those are my submissions.

KIRBY J:   Yes, thank you, Mr Devereaux.  Mr Devereaux, we are not presently minded to call on Mrs Clare.  If there was any other matter in the evidence that you wish to refer to that you have not referred to, then, in the words of the song, “It is now or never”.

MR DEVEREAUX:   Then it is now.  Your Honours, in the respondent’s outline ‑ ‑ ‑

HEYDON J:   This goes to your point, or to the proviso?

MR DEVEREAUX:   This goes to my point about the quality of the evidence.

HEYDON J:   Well, it should have been said before.

KIRBY J:   I think you had a little bit of time up your sleeve, so if it is important to your client, you say it now, as quickly as you can.

MR DEVEREAUX:   Thank you, your Honours.  One of the points made in response by the respondent is that it was common ground between the experts that there were similarities but no differences between the sample writing and the writing on the table.

KIRBY J:   Well, the Court of Appeal accepted that the evidence was very weak and the trial judge accepted that the evidence was very weak so that I do not think you really have to establish that point by reference to the transcript.  I think that is the starting point and if that was what you were going to try and do, I do not think that is really necessary because I am content to accept what Chief Justice de Jersey said about it.

MR DEVEREAUX:   Thank you, then I have nothing further.

KIRBY J:   Is that all you were going to refer to the transcript for?

MR DEVEREAUX:   It was, your Honour.

KIRBY J:   Yes, I do not think you need to establish that.  Mrs Clare, the Court does not need your assistance.

The applicant was convicted of robbery and murder in the Supreme Court of Queensland.  He seeks special leave to appeal to this Court to challenge his conviction.  In our opinion special leave should be refused.

The prosecution case at the trial of the applicant relied mainly on confessions made by the applicant to a number of people, including the police.  There was, however, another strand of evidence that was tendered against the applicant.  This related to writing found on a plank in a picnic table in a reserve which was frequented by the applicant.  The issue is whether the admission of that evidence, and evidence of document examiners about it, introduced unreliable and unduly prejudicial evidence against the applicant so as to make his conviction unsafe.

We approach the application conscious of the dangers of identity evidence, including that based on disputed writing, and the strictures of this Court in Domican v The Queen (1992) 173 CLR 555 at 556, where the jury has alternative ways of reasoning to a verdict of guilty and the court cannot know which way the jury took. However, we are not convinced that the courts below erred in concluding that the contested evidence was relevant and admissible, weak although it was.

Chief Justice de Jersey was right to say that, with hindsight, it would have been better if the evidence about the plank had been left out.  However, the trial judge’s directions about that evidence could not have been stronger.  He told the jury that it would be difficult to be satisfied beyond reasonable doubt that the applicant wrote the words and that, in those circumstances, without such satisfaction, the jury must “simply ignore the plank”.

In the light of this strong direction and the powerful confessional evidence available to sustain the conviction of the applicant, we are not convinced that an error or miscarriage of justice has occurred.  Time to bring this application should be extended, there being no opposition to that course by the Crown.  However, special leave to appeal is refused.

Adjourn the Court now until Tuesday, 4 October at 10.15 am in Canberra.

AT 1.49 PM THE MATTER WAS CONCLUDED