Robinson v The Queen

[2000] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S127 of 1999

B e t w e e n -

JAMES ROBINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 1.58 PM

Copyright in the High Court of Australia

MR T. MOLOMBY:   If it please the Court, I appear with MR. B. VASIC, for the applicant.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   If it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Director of Public Prosecutions)

MR MOLOMBY:   Your Honours, central to this application is the proposition that in the Court of Criminal Appeal there was some fundamental and important confusion between what is necessary to constitute proof of a proposition, in this case dishonesty, and the creation of a doubt about dishonesty.

Might I illustrate that proposition with an example?  There is a town in central Europe in which, as a result of unfortunate events in 1944, there is a bitter controversy about the role of a certain person in events in which people were marched out of that town and never came back.  That person emigrated to Australia and he says, “I have nothing to do with that.  I have never been sympathetic to the horrible things that happened in that community.  I am an honourable citizen.  I am a member of boards.  I give money to charity.  I have reared a family in this country”, and now, 56 years later, there comes to light a letter in that man’s handwriting written contemporarily, written now to a close friend which is dribbling with the most horrendous anti‑Semitism.  Would not that letter be capable of casting some doubt about his assertive protestations of innocence and non‑involvement and what his attitude was in central Europe in 1944?

GUMMOW J:   That would be another case.

MR MOLOMBY:   No, your Honour.  In my submission, that is a ‑ ‑ ‑

GUMMOW J:   Well, it is, because it is another factual construct.  You have to get to this factual construct.

MR MOLOMBY:   Might I relate it to this factual construct, your Honour.  Imagine first, if I may invite your Honour, that the letter was written, not now, but in 1957, 13 years after the events or 1947, three years after, because they are the time delays we are dealing with in this case.  The essential reason that that letter would throw a doubt on the protestations in that case is that it would disclose an attitude quite contrary to that which he had been asserting.

Evidence of police misbehaviour, what we are dealing with here, is very similar.  A policeman stands as someone who is the guardian and upholder and enforcer of very important aspects of legal system and individual protection.  An officer who is caught out, and caught out badly, is shown to have been acting a lie, a façade, and the relevant question which arises is, if he was acting then up to the very day he was caught out, could he not have been, and it is of course “could” not “would”, could he not have been acting about it earlier.

GUMMOW J:   Now, can I just interrupt you for a minute?  At page 159 of the application book in your opponent’s submissions, in the submissions signed by Mr Blackmore, at lines 11 and 12 and following, there is set out an extract from Vastag in the Court of Criminal Appeal.  Do you disagree with that as a formulation of principle?  It looks fairly sound.

MR MOLOMBY:   No, I do not dissent from that principle at all, your Honour.

KIRBY J:   Does not that merely illustrate the fact that it is a question of applying that principle to the particular circumstances of each case?  In this case you have two policemen, different remove from the events that are complained of, different degrees of dishonesty.  The case of the first policeman was said to be completely out of character, spontaneous, unsolicited invitation to corrupt the policemen, so is not that what the Court of Criminal Appeal did?  It applied the principle in Vastag.

MR MOLOMBY:   No, with respect, your Honour, it did something entirely different.  The principle in Vastag is silent as to the precise thing being tested.  I do not disagree with it as far as it goes, but it does not go to make the essential discrimination and the essential discrimination is that difference I referred to between something which is capable of proving a proposition and something which is capable of creating a doubt.

In my reply I reproduced an extract from a judgment in this Court in Barca v The Queen.  That is on page 162 of the appeal book, which goes to precisely that question.  It is a very important difference.  See, the burden of proof in criminal cases being beyond reasonable doubt, one is talking, in talking of doubts, of something that is quite central to the criminal process. 

One is talking, in this case, your Honour, of something which is a fraying of the golden thread in Wolmington.  What the Court of Criminal Appeal did, and may I go to its judgment to demonstrate it, it begins at page 138 of the appeal book at line 34.

GUMMOW J:   How does this system work?  There is a reference by the Attorney-General, I understand that.  What orders would the Court of Appeal have made if it had been in your favour?

MR MOLOMBY:   The appeal would have been allowed, the conviction quashed and in the circumstances ‑ ‑ ‑

GUMMOW J:   So it provides, in effect, for a further appeal, does it?

MR MOLOMBY:   Your Honour, it proceeds entirely as an appeal would.

GUMMOW J:   That is the substance of it.  Yes.

MR MOLOMBY:   It just opens the door and beyond that it is entirely on the normal appeal rules.

GUMMOW J:   Yes, thank you.

KIRBY J:   And your client had an appeal originally?

MR MOLOMBY:   He had an appeal in 1973 at which he appeared for himself, your Honour, yes.

KIRBY J:   Yes.

MR MOLOMBY:   I think the judgment is about two and a half pages long.

KIRBY J:   They were days of greater brevity.

MR MOLOMBY:   They were days of greater assistance to some people who deserved it too, your Honour.  But, your Honours, might I refer to other aspects of the probative force, meaning probative force in creating a doubt.  This is another way of putting the confusion of the issue here.  What is relevant is the probative force for the purpose of creating a doubt, not the probative force for the purpose of proving an issue.  The Court of Criminal Appeal approached it on the second of those bases and, in my submission, that was a serious error.

The situation of this applicant, in the light of this new evidence, assessed from the point of view of probative force of a doubt is this.  In 1972 he was a voice in the wilderness.  He said, “These two police officers verballed me brutally and very straightforwardly”.  He was not believed.  As it turned out, each of those police officers in different ways has subsequently been, may I say colloquially, caught out.

KIRBY J:   There was a third police officer whose name was Kelly, was it not?

MR MOLOMBY:   That is so, your Honour.

KIRBY J:   It is not suggested that he has been, as you put it, caught out.

MR MOLOMBY:   It is not, your Honour.

KIRBY J:   He affirmed the record of interview?

MR MOLOMBY:   He was a sort of, what would be called an adopting officer these days, in effect.

KIRBY J:   Yes.

MR MOLOMBY:   Yes.  He was not present but he came in afterwards and said, “Did you say this?” according to him.  But, your Honour, might I invite the Court’s attention to this?  A very effective and legitimate aspect of the probative force of this evidence is what an extraordinary coincidence, a man who in 1972 is a voice in the wilderness saying he has been verballed in a circumstance which always pointed to something questionable, because the alleged confession contained references to going to Melbourne by train which, on the account at trial and as we now know the evidence, is not possible, there was always that question in the circumstances and he is the voice in the wilderness saying, “I’ve been verballed”.

What an extraordinary coincidence that both of those officers, not just one, the probative force is markedly increased by the fact that it is both those officers who are caught out in subsequent years.

Now, when one gets to the forensic situation now, if it was realistic to have a retrial - and the Court of Criminal Appeal acknowledged it was not and I do not dispute that - if there were a retrial though, and this is a fair point from which to appraise the effect of the new evidence, the officer against whom the three others now say, and the applicant always said, - I am sorry, I withdraw the applicant – against whom three officers and the person on trial in that other case now say he gave false evidence in 1985, the effect before a jury on that now would be this.  The officer is cross‑examined today, 2000, “You gave false evidence in 1985 in this trial”, and he says, “No, I didn’t.  I’ve always been an honest officer.  I did not commit perjury then”.  The other three come in and they say, oh yes, he did.  The three are called and they say, “Oh yes, he did”.

The jury therefore, now, may conclude his very persuasive denials before us in the flesh of lying in 1985 were false.  What therefore do we say about his equally persuasive denials of having verballed this man in 1972?

KIRBY J:   The difficulty of this logic is that it implies that everybody who, 10, 15, 20 years later is caught out in a lie thereby renders doubtful all convictions that have occurred on that person’s testimony.  That cannot be the law.  That is why we are driven back to the principle that Justice Levine referred to in Vastag.

MR MOLOMBY:   No, with respect, your Honour, it is not as alarming as that.  I was hoping that the overruling of the rule in Rylands v Fletcher had abolished fear of the floodgates.

KIRBY J:   No, floodgates have never worried this Court in a case where it is appropriate.

MR MOLOMBY:   Your Honour, what would be necessary for someone being caught out later to have an impact on an earlier conviction would be a number of things which would very seriously limit the number of cases to which it could apply.  First, the person affected, the person convicted, would have had always to be maintaining at the trial and afterwards that the evidence was false.  In other words, it does not do an opportunist any good to say, “I was convicted later on this person’s evidence and now he’s been shown to be a liar, I wish to appeal”.  It would always have had to be inherent in the case that the evidence was false.

Second, it would have to be evidence that mattered, evidence that really went to the heart of the conviction as this does, the confession does in this case.  Now, applying just those two filters - and there may be a third one in relation to whether there is independent support of an overwhelming nature, independent of the witness who can be attacked ‑ ‑ ‑

KIRBY J:   You have really the train point and the fact that three years later the first detective was caught out in an action of a corrupt kind, though that was explained by reference to the fact that it was unsolicited, it was placed upon him, it was in the company of senior officers and he was otherwise a person of good character.  Action of that kind does not necessarily flow back to suggest that evidence three years earlier in a particular case was entirely a fabrication.  Then when you come to somebody 17 years later, I think it is, you are even more removed from that inference of reasoning.

MR MOLOMBY:   Your Honour, the distinction is whether one is totally removed.  More removed, certainly, but totally removed is quite another question.  May I go back to the officer three years afterwards?  The Court of Criminal Appeal, in my submission, quite wrongly and inappropriately took account of the finding on his sentence that it was an uncharacteristic act.  That would not be admissible before a trial court if he were being impugned by virtue of his conviction.

KIRBY J:   I think that has to be read in the context of the nature of the offence on that occasion.  It was a spontaneous offence, as I understood the description.

MR MOLOMBY:   The facts are sufficiently reproduced in the judgment of the Court of Criminal Appeal, your Honour.  A security guard and two off‑duty police officers, he being one, went in his car in pursuit of some shoplifters, rounded them up and then extorted a bribe as protection money and arranged to take some more money the following day.  Elements of spontaneity do not, in my submission, spring too readily to mind in that.

KIRBY J:   I thought I read that it was suggested that he did this because of the presence of the other police officers, that he had had no other connection or earlier connection with such conduct.

MR MOLOMBY:   There was none demonstrated but, your Honour, the principles on sentencing, absent a positive demonstration of earlier involvement, would oblige the court to have treated him that way.  The court, in fact, could have had the gravest suspicions about previous involvement by him and yet would have been obliged to treat him that way on sentence because that was the evidence.

One of the several errors, although they are ancillary ones, of the Court of Criminal Appeal was to act as though that consideration could form part of any reconsideration if this matter was put before a trial court.  It is just ineligible.  It cannot get through the door.  The conviction would be used to impugn him alone and there would be no special pleading that the magistrate ‑ ‑ ‑

KIRBY J:   I think that would be true if it was putting the factor out of consideration but I did not read their Honours to be saying that.  They were just sketching the background nature of the offence by the first police officer.

MR MOLOMBY:   Your Honour, they appear – I mean, the reasoning is not entirely explicit but ‑ ‑ ‑

KIRBY J:   I think your best point relates to the suggestion that in some of the reasoning the language that is used, their Honours may be expressing it in a way that one could infer they were reversing the onus or being insensitive to the onus which would exist at the trial.

MR MOLOMBY:   Indeed, your Honour, and it is on that that I focus the appeal and that is very apparent in the language used at page 138, which I think before diverting, I was going to go to.  It is the paragraph starting – it is numbered paragraph 49 where they say:

the problem of assessment becomes less easy when the jury is asked to infer dishonesty –

Now, that is not the task.  The jury is being asked to have a doubt about honesty.  That is not inferring dishonesty.  It is, perhaps, inferring the possibility of dishonesty but they state it too high and they maintain these terms:

No doubt a jury might readily infer that a witness they consider to have been dishonest on one day was dishonest the day before or the week before.

KIRBY J:   That sounds like Vastag.

MR MOLOMBY:   No, with respect, your Honour, no.  That is a misconception.  It is about having a doubt.  It is not inferring dishonesty.  One can have a doubt and not come to any positive conclusion about whether the person is dishonest.

KIRBY J:   Yes, that seemed to me your best argument.

MR MOLOMBY:   That is my central argument, your Honour, that they have engaged in a very fundamental and important confusion and their whole ‑ ‑ ‑

KIRBY J:   You are asking us to infer from that infelicity of language that the Court of Criminal Appeal was unaware of the fact that the onus throughout is on the Crown and that all that has to be shown is that there is a doubt, a reasonable doubt.  I mean, it is a big ask.  I agree with you that the language is infelicitous, but.

MR MOLOMBY:   The language is consistently infelicitous, your Honour.  Throughout the judgment this is the approach that is taken.  If combined with reference to what are, in my submission, some matters that were irrelevant considerations, one being the single offence of an otherwise impeccable man referred to already, the other being the finding of the royal commission that most police officers start their careers honest.

Now, that could not get into a trial forum and without evidence of how long the person has been a police officer or what the mean point is at which they tip into corruption, if they do, it is totally meaningless yet it is given some status in the judgment.

There is nowhere, your Honour, in the judgment, a reference to, with particularity, the creation of a doubt as being the central exercise.  It is put

as inferring dishonesty, consistently throughout and, indeed, in my submission, another factor in support of their Honours having misdirected themselves on this is that the conclusion is simply not sustainable when one applies the proper test and one looks at what a doubt is and when one looks at the fact that ‑ ‑ ‑

KIRBY J:   What, that finding out that 3years later and a much later time the two officers were dishonest and that, therefore, one must, as it were, reason back and say that therefore there must be a doubt as to their evidence in a trial such a long while ago.  I just think that is not logical reasoning.  It depends on the proximity.  It depends on the nature of the lies.  It depends on the factors that have been mentioned in Vastag.

MR MOLOMBY:   And it depends on the nature of what is exposed, in this case being perjury, your Honour, in relation to one of them.  If it please the Court.

GUMMOW J:   Yes, Mr Ellis.

MR ELLIS:   Thank you, your Honours.  Perhaps the starting point is the process that the Court of Criminal Appeal followed.  That is actually outlined at the beginning of their judgment commencing at page 126 of the appeal book and on to 127.  Once the court was invested with jurisdiction it really was a matter for the court to, as it were, review the conviction and then ask itself the test which was set out by this Court in Gallagher v The Queen and also in Mickelberg v The Queen and their Honours at page 134 of the appeal book ‑ ‑ ‑

GUMMOW J:   Mickelberg involved similar Western Australia legislation, did it not?

MR ELLIS:   Yes, that is so, your Honour, and it is to deal with the situation in terms of fresh evidence.  So when one looks at the terminology that was used by the Court of Criminal Appeal during the course of these proceedings it ought, in fact, to be predicated on the fact that the court had to look at it as required by this Court, that is that where fresh evidence is relied upon it is up to the appellant to establish that the absence at the trial of such evidence resulted in a miscarriage of justice.

In that sense the court then goes through the process of determining what value can be given to the fresh evidence and what impact it may or may not have had.  The court, in fact, proceeded to do that.  The Crown says that the appropriate legal principles were applied in terms of both the principles which applied to fresh evidence, as well as the Vastag principles.

KIRBY J:   What do you say about the complaint that Justice Barr put the bar, if I can put, too high for the prisoner to jump over, that he, as it were, was requiring proof of dishonesty as distinct from does this latterly found evidence raise a matter which would be a doubt, a reasonable doubt in the mind of a jury?

MR ELLIS:   But, your Honour, firstly it had to be looked at in the context of the entire case.  There was evidence of identification which stood alone and by itself was capable of being the basis, the entire basis, for a verdict, so that the court needed to look at the strength of that evidence and the fact that, clearly, the identification was accepted by the jury in terms of weighing up the impact that any fresh material might have and it is for the appellant to establish that, in fact, had the material in terms of Detective Harding and Detective Potter been before the court, that that would have resulted in an acquittal.

The Crown says it is not a case of looking at what is clearly the requirement of the Crown in any criminal trial to prove a matter beyond reasonable doubt.  This is a case of looking back, being required to look back in a particular way by the principles of this Court and then having the entire picture of identification which is untainted by any confession.  In fact, if the confessional material is completely removed, there was strong material upon which the verdict could have been sustained.  It is not only the identification material.  There were, in fact, a number of other factors.  There was a reference from one of the other identifying men which can be found at appeal book page 70 where there is a reference to “Jimmy I’m hit”.  So there was a circumstantial piece of evidence.

There was also in the case for the applicant at trial - and he gave evidence - he acknowledged that he, in fact, had said words to the effect, “As you know, the best liar wins in court and I will be prepared to lie all day”.  Now, that is a piece of material that, when it came to the weighing of credit, must have taken a fairly high point, or a significant point, in terms of any juries.

KIRBY J:   What do you say about the mistake concerning the train?  Do you accept that the applicant could not have travelled to Melbourne by train?  Is that now an accepted fact?  If so, how does one explain the fact that the two policemen commonly referred to the fact that he had gone by train?

MR ELLIS:   Your Honour, I am not sure that the Crown can take that issue any further.  It was run at trial.  It was also run that that there was airline material - details of airline flights were available.  That issue did not specifically, from my recollection, relate to either Detectives Harding and/or Potter.  I just cannot recall the names of the officers that that came from.

But I think that all I am saying, your Honours, is that certainly at any trial there will be material which goes one way and another for a jury to weigh up whether they are satisfied beyond reasonable doubt but in the task that the Court of Criminal Appeal had, they had to be mindful of the strong identification evidence.  The trial judge, in fact, described the evidence, I think, in his – it was in the remarks on sentence, as being a very strong piece of identification which the jury were entitled to, and obviously did, accept.  So, in light of that evidence, what was put forward was a necessary inference that behaviour in 7195 by Potter would have case a sufficient aspersion upon his evidence in 1972 to justify an acquittal, notwithstanding the strong identification evidence.

At the best, the Crown’s argument is that all that would have done would have been to negative any confessional material but it would have left untainted the identification evidence.  So far as Detective Harding is concerned, in fact, the only matter that has ever been taken to finality with him has resulted in an acquittal so that there is not even any concrete material that would go back before the jury.  He certainly has never made any admissions through any of these proceedings.  When charged he was acquitted, so it is a case of weighing that material up in light of all of the circumstances of the trial.

The Crown says that the conclusion that the court came to was one which was open to it and that it was in the Court of Criminal Appeal that the applicant received his review, factual review.  All that is really being asked of this Court is not to rule in relation to any particular principle because there is no issue with the principles, but it is actually to factually rehear this matter.

There is a recent decision out of the Court of Criminal Appeal in the name of Goonan in which this case is referred to.  Vastag and the general principles are referred to but the factual situation there was slightly different and it resulted in a different outcome and it is but an example that the principles are there.  In this case the outcome was unfavourable to the applicant.  In other cases it is not and really, it is simply a question of asking this Court to proceed on what really is simply an all grounds appeal, if I could put it in that sense, for this Court to go back through all the material.

The Crown says there is no special leave point.  There is no issue in relation to principles, either in terms of the principles which apply to the consideration of fresh evidence cases or in terms of the principle that comes from Vastag’s case and the reference to the usage of inference, it really is

clear that the courts generally have been very loath to apply anything retrospectively.

GUMMOW J:   I do not think we need to hear you any further, Mr Ellis.

MR ELLIS:   Thank you, your Honour.

GUMMOW J:   Mr Molomby, anything in reply?

MR MOLOMBY:   Just three points, if I may, your Honour.  The material about the train, which your Honour Justice Kirby was asking about, that was evidence given by Detective Harding entirely.  The other officer was in on one of them.  It was always Detective Harding who said that those things were said about going on the train.

The three witnesses against Mr Harding in relation to the 1985 matter could be called at trial despite the fact that he has not been convicted of anything.  If he is convicted and he has now been charged, the situation might be even more against him.  There have been charges laid in relation to that matter.  The trial judge did speak enthusiastically of the identification evidence.  In my submission, he was plainly, inappropriately, over enthusiastic about it.

KIRBY J:   This was Judge Robson?

MR MOLOMBY:   It was, and on three particular occasions he actually referred to the people seen in the motel, the robbers, as the accused; not a model or commendatory summing up in any respect on that point.  Perhaps the most obvious of them – the references are on pages 60, 61 and 63 in his summing up where, on the top of 63, by way of example he spoke of:

The next matter of importance is the time between when he saw the accused and when he carried out an identification.

Your Honours would recall that the identification was of two people seen for some four minutes late at night, at all times with stockings over their heads, neither of them asserted to be previously known to the person.  Not with today’s wisdom, whatever might have been the attitude in 1973, anything like circumstances offering a safe opportunity for an identification.  If it please the Court.

GUMMOW J:   This is an application for special leave to appeal from the dismissal by the New South Wales Court of Criminal Appeal of an appeal where the appellant's present appeal rights were enlivened upon a reference by the Attorney‑General under Part 13A of the Crimes Act 1900 (New South Wales).  The parties accept that in a proceeding of this character in the New South Wales Court of Criminal Appeal guidance as to the applicable principles is provided from the following passage in the judgment of Justice Levine, with whom Justice Stoddart agreed, in giving the judgment of the New South Wales Court of Appeal in Reg v Vastag, unreported, 20 June 1997, and the passage is as follows:

material from the Royal Commission should be considered to determine whether it is capable of disclosing conduct or, possibly a reputation therefor, pointing to a preparedness in the officer to act corruptly, at least by dishonesty, in his performance of his duties in criminal investigations.  The closer the suggested adverse conduct is in the Royal Commission material to that which is relevant to the particular trial the more persuasive will be the position of an appellant in an appeal of this nature.  I do not consider it possible or indeed desirable to enunciate any fixed test.

In this Court, the applicant points to what may be certain infelicities in the expression by the New South Wales Court of Criminal Appeal of its reasons.  However, if what was said in the above passage from Vastag is applied to the factual material upon which the New South Wales Court of Criminal Appeal was invited to act in this case and to the time scale that it involves, we are not satisfied that an appeal at this Court would enjoy sufficents of success to warrant a grant of special leave and, accordingly, special leave is refused.

MR MOLOMBY:   If the Court pleases.

MR ELLIS:   If it please the Court.

AT 2.33 PM THE MATTER WAS CONCLUDED