R v Carroll

[2002] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B82 of 2001

B e t w e e n -

THE QUEEN

Applicant

and

RAYMOND JOHN CARROLL

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 2.30 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the applicant.  (instructed by the Director of Public Prosecutions (Queensland))

MR M.J. GRIFFIN, SC:   I appear with my learned friend, MR P.J. DAVIS, for the respondent.  (instructed by Legal Aid Office (Queensland))

GLEESON CJ:   Yes, Mr Byrne.

MR BYRNE:   May your Honours please, in this matter the Court of Appeal have laid down principles which we would say are far reaching important principles as to the procedure and the way in which perjury trials of this type are to be conducted. 

In paragraph 24 of the judgment of the Court of Appeal three propositions are set out.  Importantly, in our submission, they say, particular the first proposition, that where there is a perjury trial following an acquittal, as it were, as it was the case here, that where the Crown is seeking to prosecute that perjury, the focus should be on – not on “as if it was a re‑trial” in their words “of the original offence” but on proving the perjury.  In our submission, that is firstly, unworkable in circumstances such as the present and, secondly, it leads to consequences which are evident as the Court of Appeal judgment in this case has analysed.

Firstly, it leads to the consequence that what the Court of Appeal have done acting on that principle is that evidence has been compartmentalised, if you like, to what as the Court of Appeal described as the “old evidence” and the “new evidence”.  In paragraph 27 of the judgment one can see that, particularly the paragraph at about point 6 on the page, where it has talked about the only new evidence – leaving aside the odontological evidence – comes from Hill, Ferguson and Swifte, and going on to say that:

At most total acceptance of the evidence of Hill and Ferguson might strengthen a circumstantial case against the appellant that he was responsible for the death, but that was not the main issue on this trial.

In this case, in our submission, what the Court of Appeal is saying, in effect, is that if on the whole of the evidence presented at a perjury trial including both the old and the new evidence, if that evidence considered as a whole may establish that in this case the respondent is proved to be the person who killed the victim, in this case Deidre Kennedy, then that is not the main issue of the trial and the procedure should be adopted accordingly.

McHUGH J:   Let us test it this way.  Supposing after somebody was acquitted, the Crown immediately charged that person and the person had gone into the witness box and said “I did not kill the deceased”, the Crown then charged the person with perjury and led the same evidence against that person.  What is your submission about that?  Could the Crown succeed in a prosecution for perjury on that basis?

MR BYRNE:   It is accepted that the Crown could not and to do so ‑ ‑ ‑

McHUGH J:   Why not?

MR BYRNE:   Because the authorities establish that there needs to be in circumstances where ‑ and it is accepted again that it is an unusual step to bring a perjury charge ‑ and accordingly the authorities provide that there needs to be, to use a phrase “substantial new evidence”, in addition to that brought at the murder trial, to use your Honour’s example, before the Crown should bring a charge of perjury.

McHUGH J:   Exactly, but I am not sure that that might go far enough.  If you follow Storey through to its logical conclusion, why should the Crown be entitled to lead any evidence that would undermine the accused’s benefit of acquittal?

MR BYRNE:   Because, to answer your Honour directly ‑ ‑ ‑

McHUGH J:   I must say I have a lot of sympathy for your case.  Here is the man who has been convicted by two juries of a most dreadful crime and the Court of Appeal has held that in both cases the verdict is unsafe and unsatisfactory, but you have this terrible burden of seeking special leave from this Court when an acquittal has been entered.

MR BYRNE:   We accept that.

McHUGH J:   It has to be an exceptional case for this Court to grant special leave.  We did it in Rogerson; we did it in Benz, and I cannot think of any other cases where we have ever done it.

MR BYRNE:   I think it was done in Barlow but that, perhaps, was an acquittal by the Court of Appeal.

McHUGH J:   Yes, but so were the other cases.  It was said in the 18th century there has never yet been known that there has been an appeal against acquittal by a jury and Lord Devlin has said that it has never been known since.

MR BYRNE:   Your Honour, the point we rely upon, to answer your Honour, is that there is a point of public interest where if, as your Honour points out, that this person has been twice convicted by a jury it is important for the system to operate such as to allow, in appropriate circumstances, someone who has told a lie on his murder trial if that lie can be properly ‑ and I stress that ‑ proved as being a lie, then public policy surely ‑ ‑ ‑

McHUGH J:   I know, but that is the problem, is it not?  It would be different if you prosecuted him for perjury about a statement he made about being at the Amberley Base or whatever it was at the particular stage, I can understand that charge but what you rely on here, in effect, is “I did not kill the girl”.

MR BYRNE:   Yes.

McHUGH J:   That seems to me to be your real problem.  If he had been charged with some other statement which does not necessarily impugn the verdict of acquittal, then speaking for myself, you might be on strong ground, but you chose to fight the case on the basis that the perjury was “I did not kill the girl”.

MR BYRNE:   And that was done ‑ ‑ ‑

McHUGH J:   I know why it was done:  so you could get in all this other evidence to prove the murder.

MR BYRNE:   No, it was done because that was considered to be the fairest way to do it.  If the Crown is to bring a charge in circumstances as unusual as this, the onus should be on the Crown to prove to the higher standard to put this person back into the dock and that was considered here to be for, effectively, the statement that he did not kill the child.  It would not be reasonable, in my submission, to reactivate proceedings to prove a lie such as “I was in South Australia, not Queensland” and then attempt to prosecute him some years down the track for that and without the background and without the gravamen of the charge then, really, one would wonder what sort of penalty would attach to a conviction for that sort of offence. 

So what was sought to be done here, and as I said in the Court of Appeal and I repeat to your Honours, I do not shrink from it, the Crown took the point of view that in fairness if the matter was to be relitigated it had to be relitigated at the highest level and in doing that the Court of Appeal should have decided two things:  firstly, whether there was new evidence but then which, in my respectful submission, they did not do, one then looks at whether on the whole of the evidence, that is the evidence which was led at the murder trial and led again at the perjury trial together with the new evidence, a jury could – a properly instructed jury – could be satisfied to return a verdict of guilty on all of that evidence.  If that is not the permissible practice then one simply cannot run perjury trials in circumstances such as this unless there is, for example, simply an admission.

McHUGH J:   You can run perjury trials and I would have thought it was open to you charge this man with a number of offences of perjury and make a strong case ‑ maybe I withdraw the word strong, but certainly to make an arguable case, particularly about where he was on the particular day, et cetera, et cetera.  He had photographs showing he was not there in that particular area where he had sworn he was.  But once you say that the perjury consists of, in effect, “I am not guilty” and that is what it comes down to, it seems to me you are really retrying the murder and that is the view that the Court of Appeal took and said you have to really have truly additional evidence.  I am not sure that is not even too favourable for you, Mr Byrne.

MR BYRNE:   I believe they said “substantial new evidence” ‑ ‑ ‑

McHUGH J:   Yes, substantial.

MR BYRNE:   And we accept that, of course, but what the Court of Appeal did apart from the statement of principle to which I have referred is that there seems, with great respect, to have been a misunderstanding ‑ ‑ ‑

McHUGH J:   Of the evidence.

MR BYRNE:   Of the evidence at the trial.

GLEESON CJ:   What is the best example you can give of that?

MR BYRNE:   There are two examples.  If one looks at page 134 of the application book, in paragraph [28], this is where the Court of Appeal seems to focus upon the only effective new evidence, being that of the person Swifte and the confession.  There is reference in the second sentence of that paragraph, the statement is made:

The “alleged confession” was regarded by Muir J on the s 592A application as evidence which was “significantly different and stronger” than that led at the earlier trial (115 A Crim at 170).

If one goes to the pre‑trial ruling which is reported at page 170 of 115 A Crim R, what his Honour the trial judge said is that:

The Crown’s case also has significantly different and stronger evidence in three other aspects:  there is now an alleged confession; further similar fact evidence of the accused’s biting his own infant child is available and the Crown has different and more consistent expert odontological evidence.

The court seems, with respect, to have misunderstood that Swifte’s evidence was a part, but by no means the central part, of what the Crown case at trial was.  The very next sentence in that passage in paragraph [28], the Court of Appeal said:

Muir J recognised at 172 that if Swifte’s evidence was excluded that would, most probably, result in the prosecution not proceeding.

To answer your Honour the Chief Justice’s question, there is a striking answer to that. If one looks at, again, 115 A Crim R 172, paragraph 36, the fact ‑ ‑ ‑

McHUGH J:   Could I just interrupt you.  Is not your strongest that even the defence expert at the trial abandoned the theory about the dental evidence at the first trial?

MR BYRNE:   That is why we make the submission the focus by the Court of Appeal on the earlier evidence is surprising because once one had the benefit of being able to see the actual computer images it was demonstrated quite clearly and there was no contest taken at trial that the first orientation, if you like, of those teeth, was wrong.  So, for the Court of Appeal to seem to say, as they do, that because of that the verdict is unsafe and unsatisfactory is again, in our submission, a misunderstanding firstly, and secondly, it demonstrates this compartmentalisation of the evidence.

GLEESON CJ:   Perhaps we would be assisted by hearing what Mr Griffin has to say at this stage.

MR BYRNE:   Thank you, your Honour.

MR GRIFFIN:   Your Honours, the principle which your Honour Justice McHugh enunciated is the principle upon which rely, that is to say that there must be, according to cases such as Lee and Benz, very exceptional circumstances for this Court to correct or interfere with a decision of acquittal by an appellate court.  Could I take your Honours to that decision which was made by the court, in paragraph [72], one of the last paragraphs of the judgment.  It appears in the application book at page 146 at paragraph [72]. 

Whilst the court looked at this question of what evidence was available and the categories of evidence in the context of questions of double jeopardy and so on, and the presence of new and substantial evidence, in the end result the court, by its judgment, examined each category of evidence that was available in the perjury trial.  It looked to that body of evidence which had been adduced in the past trial because it was referred to in the perjury trial and therein Mr Justice Williams saw a difficulty for the defence in being able to establish a comparability between the earlier evidence which could not be recalled because of the unavailability of witnesses and the evidence which was called in the trial.  But in the event, in each category of evidence, appreciating that it was a circumstance in the overall Crown case, the court said this, “in any event” –having said that the trial should be stayed as an abuse of process:

But in any event when the evidence is carefully considered I am of the view that the verdict returned by the jury was unsafe and unsatisfactory.

And that was the view of all members of the court.  In other words ‑ ‑ ‑

McHUGH J:   Mr Griffin, can I tell you what is exercising my mind?  On one view it seems to me that maybe the test that was formulated by the court was too favourable from the Crown’s point of view and if that is so then you probably win the case hands down.  On the other hand, in so far as I can judge the evidence from a summing up and the judgments ‑ and because we have not got the transcript of the evidence ‑ I feel a little uneasy about the reasoning of the Court of Criminal Appeal.  So, one factor seems to me to be very much in your favour; the other factor against you, but one has to take into account that general proposition with which you commenced.

MR GRIFFIN:   Your Honours, without wishing to shrink from dealing with the concern that your Honour has expressed, that second concern is one which is a view which the Court of Appeal formed on the facts.

McHUGH J:   Yes.

MR GRIFFIN:   The Court of Appeal had before it the entirety of the transcript of that trial and the evidence of the experts ranged over a number of days.  Can I say this about the expert evidence in relation to the odontological evidence:  the court came to this conclusion, that expert evidence in relation to matters odontological was admissible.  There was a difficulty in this trial and it was this, that the bruising on the child’s body was diffuse bruising – it lacked, therefore, in the photograph, and of course the photograph had to be oriented in such a way that it might give of the sort of planes that a child’s body would have depending upon where the photograph was taken and the position of the leg and so on.  That diffuse bruising lacked such specificity according to the defence expert, Dr Whittaker, who was indeed - I think it is commonly agreed - of the highest calibre and expertise.  He used a technique that was the technique used by those experts in the original trial and so indeed did the other two experts, apart from Dr Forrest or Mr Forrest who created this imaging technique and I will say something about that in a moment, but the other two experts called by the Crown used precisely the same approach, the acetate tracing approach. 

The imaging developed by Forrest was not only it seems, experimental, and that really comes from the judgment of the court in the perjury trial, but it was no more and no less than a descriptive way of enhancing the evidence and making it comprehensible before the jury.  It was not a new technique.  Rather, it was a new technique based on the old evidence.  The evidence itself was not new, and the results to which those experts for the Crown opined ‑ and it was really only Forrest who seemed to be devoted to this imaging technique ‑ was really relying on the same earlier, original evidence.  That is, the evidence ‑ ‑ ‑

McHUGH J:   I cannot recollect whether the Court of Appeal said that it had seen those computer imaging.  Did they have ‑ ‑ ‑

MR GRIFFIN:   The court did not see ‑ there was no demonstration in the Court of Appeal of that technique, but sufficient of it was described in the trial itself.

McHUGH J:   I know what the Chinese say about pictures.  The jury saw the pictures.

MR GRIFFIN:   It was a way of demonstrating, and a dramatic way ‑ for I was involved in the pre‑trial application only, it was a dramatic way and a colourful way of representing the marks on the body but one must appreciate that in the end result all of this came from the original photograph showing diffuse bruising.  So, however this new technique was developed and presented to the jury, attractive as it may have been, it still came from the original photograph.

McHUGH J:   I know, but it is a little surprising that the court would interfere without having seen, examined, the evidence that the jury had before it.

MR GRIFFIN:   Indeed, the court did ‑ ‑ ‑

McHUGH J:   The jury had these ‑ they had screens, did they not?  Did each juror not have a screen?

MR GRIFFIN:   Yes, that is so, but in the end result it comes back to what the court viewed was the actual photograph itself.  I am reminded that in fact two of the Crown experts, Dr Craig and the other witness, conceded that there was no real extra or added value in this imaging technique and we refer to that in our outline, may it please your Honours. 

We do not accept for a moment that in any respect in any of the five categories to which the Court of Appeal referred, that they got the evidence wrong.  It was their own evaluation which they were perfectly entitled to do according to principles and the Court of Appeal examined each category, individually as it must have, as it was required to do according to Morris and cases like M and Jones.  It had to do so, in a seriatim sort of way, and then that conclusion was reached by Mr Justice Williams, which was the view of the court, about the evidence.  This is a case which is purely and solely an evaluation by the Court of Appeal of the evidence available against the accused man.  It was a verdict which was thought to be unsafe and unsatisfactory.

Is there any further assistance I can give?

GLEESON CJ:   Thank you, Mr Griffin.  Mr Byrne, that last point is one that is concerning me, I must say.  If we were to grant leave to appeal in this matter, would we find ourselves principally reviewing the Court of Appeal’s decision that the verdict was unreasonable?

MR BYRNE:   That is not the only point.  That is a point and it is accepted but the complaint is that the Court of Appeal’s reasoning is incorrect and that is an ‑ ‑ ‑

GLEESON CJ:   Factually incorrect?

MR BYRNE:   Factually, and in principle, incorrect.  If one looks, for example, just to stick with the odontological evidence that my learned friends have been dealing with, at paragraphs [54] to [61] of the judgment of the Court of Appeal analysis is made of the various pieces of that, including at some length the evidence given at the murder trial and how that impacted upon the reliability of the subsequent experts which seems, with great respect, to be incorrect.  Then, at paragraph [62], so far as error of principle is concerned, the Court of Appeal makes the statement that the:

verdict that the appellant was responsible for the death of the child based on the odontological evidence given at the perjury trial was unsafe and unsatisfactory.

That demonstrates firstly, what we say is the inappropriateness of compartmentalisation, but ‑ ‑ ‑

McHUGH J:   Is not your real point of principle that the court, assuming your major premise is right about the way you go about these cases, in the middle of paragraph [62]:

The prosecution case on the perjury trial was essentially a re‑trial for murder based on odontological evidence from a fresh set of witnesses, asking the jury to disregard contrary opinion from the odontological experts called at the first trial –

well, there were no experts.  That evidence was never before the jury, was it?

MR BYRNE:   No, it was not, just so far as cross‑examination was put.

McHUGH J:   No, it came out in cross‑examination, so ‑ ‑ ‑

MR BYRNE:   It goes further than that, your Honour.  We take on board that but it also ignores the way the jury were instructed to approach the evidence and if one looks at pages 85 to 86 of the application book, the learned trial judge, so far as this evidence is concerned, I would submit, correctly, with respect, beginning at about line 45 on page 85, tells the jury that there were two cases going on together here.  There was the case of the direct evidence, if you like, of the experts making identification of the bite marks but there was also a circumstantial case being mounted by the Crown and part of the circumstantial case could be the consistency found by the experts as to the respondent being the biter.  As his Honour says at the bottom of that page:

that is a piece of circumstantial evidence which you may take into account as part of the Crown’s overall circumstantial case –

and this is an illustration, it is submitted, of where the Court of Appeal erred.  They simply said, look at that, that is out, so it is unsafe and unsatisfactory.  The correct approach is to look at all the evidence collectively and decide whether, on all of the evidence, there was sufficient on which a jury could convict.

McHUGH J:   This may be a particular problem in circumstantial evidence cases but ordinarily if one is asking is there a case to go to the jury on circumstantial evidence, one takes each fact, no matter how weak, and puts them all together and say, ultimately, they become quite a strong case but the approach on unsafe and unsatisfactory in this case was, in effect, to

criticise every facet of evidence and keep reducing, reducing, and rejecting, rejecting, rejecting, as you went along.

MR BYRNE:   Concluding from that two things.  Firstly, in paragraph [65] at page 144 that without Swifte there was no case and the prosecution should have been stayed.  That, by virtue of the passage I referred to earlier, was simply a misunderstanding of the evidence.  Then one goes on to the ultimate conclusion referred to by my learned friends in paragraph [72] where the Court of Appeal says, firstly, there is “an abuse of process”, which we say is wrong because it relied on Swifte’s evidence alone, and secondly, that the verdict was unsafe and unsatisfactory and that conclusion flows not only, we would say, from an incorrect understanding of the evidence but an error of principle in that there was this separation of each of the categories of evidence.  Those are the submissions.

GLEESON CJ:   The course that the Court will take in this matter is to refer the application for special leave to appeal to a Full Court and when the matter comes before a Full Court the parties should be prepared to argue the matter as on an appeal.

AT 2.58 PM THE MATTER WAS CONCLUDED