SMR v The Queen

[2003] HCATrans 765

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S257 of 2002

B e t w e e n -

SMR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 3.31 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear with my learned friend, MR H.K. DHANJI, for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honours.  Your Honours, firstly, the application was a week out of time.

GLEESON CJ:   Any objection to an extension of time?

MR SMITH:   No, your Honour.

GLEESON CJ:   Yes, you have that time.

MR ODGERS:   Thank you, your Honour.  Your Honours, there are four grounds for the application.  The first three grounds raise the question of whether or not the trial was a fair one.  While no application was made by the solicitor who appeared for the applicant at his trial in respect of any of those three matters, we submit that there was no possible tactical reason for him failing to do so in any of them and we emphasise the fundamental principle that in a criminal trial a trial judge has a duty to give such directions as are necessary whenever a perceptible risk of miscarriage of justice arises.

Now, in respect of ground 1, the point is a simple one.  There was a 15 or 16 month delay between the commission of the offence and the arresting of the accused and asking him questions by the police.  That is to be combined with the fact that the library records relating to the book – and I am sure your Honours are fully aware of the facts – had been destroyed, so that it simply was not possible to know the history of the book, other than the fact that two days before the offences were committed, the book had been borrowed by the victim.  But prior to that, for the preceding four years there was simply no record of where the book had been.

KIRBY J:   Was it a popular sort of book that might have been taken out many times?  Was there evidence ‑ ‑ ‑

MR ODGERS:   There was some evidence that it had been taken out, I think, before the four years.  Prior to that it had been taken out a reasonable number of times.  It was written by a reasonably well-known author and so there was some evidence suggesting that it was reasonably popular.  That is about as high as you could take it.  Can I just say in relation to that, of course, if the accused had touched it, say, four days before in the house of the preceding person who had taken it out, that would of course have provided an innocent explanation for how his fingerprints had got there.

KIRBY J:   As I understand your case, it is that there is a possible explanation consistent with innocence that he had touched the book in a place unknown because you cannot know where it was and, therefore, he has lost the chance of exploring that and that, in a sense, is a possibility.  But, against that, is stacked the evidence of the victim of the freckle on the person of her assailant and that is an affirmative aspect of the evidence that does not square with your client.

MR ODGERS:   Plainly.

KIRBY J:   So that you have, on the one hand, the positive demonstration of something that does not gel with a possible explainable thumbprint which might, if you had had the opportunity, have been able to be explained away.

MR ODGERS:   That is certainly what we say.

KIRBY J:   I am very concerned about the freckle, I have to say.  That is my immediate reaction to the case because mistaken identities can occur.  People can suffer injustices and wrongful convictions.

MR ODGERS:    We did not contend in the Court of Criminal Appeal that the conviction was unreasonable.  But the freckle is significant because it goes to the question of the strength of the circumstantial case against the applicant.

KIRBY J:   What did the victim actually say about this identifying feature of the assailant?

MR ODGERS:   I have extracted it in the submissions, your Honour.  At application book page 77, line 40 she referred to:

a “dark coloured spot” like “a large round freckle” on the offender’s right shoulder –

and it was uncontested that the photograph taken of him demonstrated that he did not have such a spot.  That is really the essence of the evidence in respect of that.  But if I could return to the question of the fingerprint ‑ and this really interrelates with almost all of the grounds – the way that the issue was raised in the trial as really the central issue was whether or not there was an innocent explanation for the presence of the accused’s fingerprints on that book.  That was the issue raised in the summing up at the first page of the summing up and then it was returned to. 

We say that in the context of that issue in this trial that meant that a warning needed to be given about the problems that the accused was confronted with by the delay, in his ability to be able to remember how it was he might have innocently have come into contact with the book, in his problems in being able to remember what he might have been doing if he was not the offender on that day and obtaining alibi evidence.  But it also went to the other grounds because we say that the jury would have thought, “Well, explanation.  We have not heard an explanation.  He has not testified.”  There was a real danger – and I will come to it in detail in a moment – that the jury would have thought, “Well, since there is no explanation that has actually been offered, only possibilities”, would that not then lead them to say that, “The failure of the accused to provide an explanation is something we are going to use against him”?

GLEESON CJ:   Or, more accurately, the failure of the accused to support any of the possibilities.  What were the possibilities?

MR ODGERS:   The first one that I put to your Honours was that he had, at some period prior to the two days in which the book was in the possession of the victim, innocently come into contact with the book, other than at the library  ‑ ‑ ‑

GLEESON CJ:   The fact that he did not give evidence left his counsel or his solicitor at large to explore those possibilities.

MR ODGERS:   Yes.

GLEESON CJ:   The moment he had gone into the witness-box, he would have been asked about the specific possibilities.

MR ODGERS:   That is true.

GLEESON CJ:   People would have started testing in detail what were the circumstances that he could suggest under which he might have come into contact with the book.

MR ODGERS:   But, your Honour, in his record of interview, he said, “I don’t know how I came into contact with this book.”

GLEESON CJ:   Where do we see that?

MR ODGERS:   It is not in the application book.

GLEESON CJ:   We only have some limited information about what is in the ERISP and that is what appears in Justice Carruthers’ judgment.

MR ODGERS:   Yes.  I can just read it out to your Honours.  He was asked at page 16 of the record of interview, “How can you explain” – and this is going to the fingerprint, and this is what he says, “I don’t know how I can explain it, but I swear to Christ that I never touched that woman.  I don’t know how my fingerprint got there, it might not even be mine.  It could be identical, but it is not mine.”

GLEESON CJ:   We also do not have the transcript or any reference to the transcript in which the complainant referred to this freckle.  We do not have the extract of her evidence.  All we have is a few words quoted by you in your submissions.  Could we have a look at that?

KIRBY J:   Not that we are in any way suspicious of you, Mr Odgers.

GLEESON CJ:   We would just like to lay our eyes on the evidence.

MR ODGERS:   Certainly, your Honour, I will do the very best I can.  Can I just say by way of defence – and I know I do not need to defend myself – that I have been in applications where criticisms have been made by members of this Court for rather excessive application books.

GLEESON CJ:   I understand that.  It is just that we are at a disadvantage and it is very easily remedied.  It could be remedied by somebody ripping a page out of their papers in front of them.

MR ODGERS:   Yes, certainly.

KIRBY J:   We would like to be a bit critical, especially towards the end of the day.

MR ODGERS:   Yes, thank you, it is all taken in good spirit, thank you, your Honour.

GLEESON CJ:   The other thing that people always leave out of appeal books – I am not suggesting they should be in the application book, but I always like to see them in the appeal book – is the remarks on sentence.  They are very often a very useful reality check.

MR ODGERS:   Yes.  Yes, I appreciate that, your Honour, thank you.  Your Honour, I can read out page 21 of the transcript.  She is asked a question, “And you noticed that he had a dark-coloured spot like a freckle on his right shoulder?”  Answer, “It was bigger than a freckle, it was” ‑ ‑ ‑

GLEESON CJ:   Just excuse me for a moment.  This is a leading question by the Crown Prosecutor, is it?

MR ODGERS:   Yes, there was no objection taken.

KIRBY J:   This would be based upon her statement to police?

MR ODGERS:   Obviously, and no doubt the defence solicitor was aware of what her statement was.

KIRBY J:   Had that not been led, it would have been more tellingly asked in cross‑examination, so it was very properly led by the Crown.

MR ODGERS:   Yes, it may, yes, quite.  The answer was, “It was bigger than a freckle.  It was about the size of my – like a mole only not raised up very much.  It was just like a large, round freckle.”

KIRBY J:   This is getting more and more detailed and taking on more and more verisimilitude in her description of it.  She is not withdrawing and saying, “Well, I am not really entirely certain.  I thought it was a freckle but I am not sure, but I can’t remember it now.”  She is giving more detail.  She thought it was a mole.

MR ODGERS:   Yes, I am also reminded that she said at page 34 in cross‑examination, “Can you remember what colour it was, brown, light brown?”

KIRBY J:   Against all this is, one, your client is not a bookish person; two, this has plastic on it and it is the type of plastic we used to cover our schoolbooks with; three, there is a practice of wiping it over every time the book is returned ‑ ‑ ‑

MR ODGERS:   No, your Honour, if it was dirty.

KIRBY J:   All right, I take three out, but there was a practice occasionally of wiping them over if they were dirty; four, it was said by one expert questioned by another to be a very clear imprint of the kind that you can put onto that type of plastic and recent, according to that person, though you dispute that.

MR ODGERS:   Ground 4 was calling expert evidence ‑ ‑ ‑

KIRBY J:   And, five, something that just let slip somewhere in the thing, he worked at the swimming pool opposite the flats ‑ ‑ ‑

MR ODGERS:   Yes, I saw that in my friend’s submissions.

KIRBY J:   ‑ ‑ ‑ of the flat in which the victim was living and was assaulted.

MR ODGERS:   In a small country town.

KIRBY J:   That is a pretty potent factual matter.  None of these things are conclusive, but they do ‑ ‑ ‑

MR ODGERS:   It was not relied on by the Crown at the trial so far as I am aware and in a small country town I would submit that it takes on less significance than it might otherwise bear.

KIRBY J:   Yes, I would accept that.

MR ODGERS:   In respect of the evidence as to freshness, the key to our fourth ground is that an expert says it is scientific nonsense that by looking at the way the fingerprint appears or the way you develop it, that you can form an opinion as to freshness.

KIRBY J:   Was that before the jury or is this fresh evidence?

MR ODGERS:   No, this is the fresh evidence point, but I raise it because it obviously goes to the question of whether or not there was a significant possibility that that evidence before the jury might have led to a different result which, of course, is the fourth ground.

KIRBY J:   Yes, there is, seventhly, the fact that it was the victim’s statement that her assailant picked the book up and flung it to the side of the room.

MR ODGERS:   Yes.

KIRBY J:   But against is that the description of “blonde” and “coloured” does not fit all that well with the ‑ ‑ ‑

MR ODGERS:   No.  Your Honour, it needs to be understood very clearly what we are saying here.  We did not contend that the verdict was unreasonable and what we have said is ‑ ‑ ‑

KIRBY J:   I know that, but I am trying to consider whether a miscarriage may have happened and that is relevant to the sensitivity and vigilance with which you approach alleged errors of direction or conduct of a trial.

MR ODGERS:   Yes, your Honour, but even accepting that fingerprint evidence can be very probative and the Court of Criminal Appeal was referred to cases where it had been perceived to be such, they were all cases where there had been evidence led which showed that there was really no opportunity for an innocent placing of the fingerprint there and, in those circumstances, the fingerprint essentially proves the case pretty much beyond reasonable doubt.  But in this case, where there is an absence of such evidence, where all you are really left with is speculation, “It might have been cleaned; the cover might have been changed; we don’t know whether it might have gone through numerous hands”, there are all sorts of possibilities where you even might be able to say, “Well, it is unlikely that the fingerprint was put there innocently.” 

It is in such a case that the courts have an obligation to ensure that everything that properly can be done to prevent against a risk of miscarriage is done.  That is why we rely on the first three grounds because the jury needed to be told, to prevent a risk of miscarriage, to guard against a risk of miscarriage, that “While the Crown is inviting you to draw this inference based on the totality of the material, that you should bear in mind that there was a substantial delay which meant that it would make it very difficult for him to remember where he might have innocently touched it; that his failure to testify, particularly in those circumstances, his inability to go in the witness-box and provide an explanation is something that must not be used against him”; and thirdly, to emphasis that in a circumstantial case, if there is a rational possibility consistent with innocence, they must acquit; instead of which the trial judge said, “You look to see whether or not there is a reasonable explanation that is provided.” 

GLEESON CJ:   In the course of the trial, did the defence say anything other than there might be some other way in which his hand could have got on this book?  Did they suggest what the possibilities might have been?

MR ODGERS:   I do not think so because, of course, there was not any evidence on which to base such a suggestion.

GLEESON CJ:   So the most that the jury heard from the defence was ‑ ‑ ‑

MR ODGERS:   “I didn’t do it.”

GLEESON CJ:   ‑ ‑ ‑ “I didn’t do it.”  There may be some other way in which his hand could have got on this book.

MR ODGERS:   The solicitor would submit to the jury, “He says he didn’t do it.  The Crown relies on the fingerprint.  There is a possibility that prior to the two days when it was in the possession of the victim that it was innocently touched by the accused.”

GLEESON CJ:   What are the possibilities?

MR ODGERS:   The possibility is that the book had been borrowed by some person connected in some way with the accused, a person who might be a relative of a friend of his.  Let us say, four days before the offence, this person has the book in their house, he visits the house and he puts his hand on the table where the book is, or in some other way he innocently touches it.  He may have been aware of the book, although 16 months later may not have remembered it or, alternatively, may be completely unaware of the book, but ‑ ‑ ‑

KIRBY J:   There were thumb prints on both sides of it, I think.

MR ODGERS:   No.

KIRBY J:   Only one, was it?

MR ODGERS:   Only on one side and there were two thumb prints which were very close together, suggesting that the hand had moved slightly.

KIRBY J:   Of course, I suppose you could say that one factor giving a tiny bit of support is that in a small town there is more chance of innocent connection with it than in a huge city. 

MR ODGERS:   Yes, absolutely.

KIRBY J:   His mother was a library person.  She subscribed to the library afterwards.

MR ODGERS:   She only apparently joined after the commission of the offence, and I need to be clear ‑ ‑ ‑

KIRBY J:   You cannot make much of that.

MR ODGERS:   ‑ ‑ ‑ in his record of interview, he did not suggest that he had been to the library.  So we cannot say that there was a realistic possibility that he touched it at the library.

KIRBY J:   He did not try to come up with some hair-brained explanation?

MR ODGERS:   No.

KIRBY J:   He just said he could not explain it?

MR ODGERS:   He said “I don’t know”, and that is what he said in his record of interview and, of course, there was every risk in this trial that the jury would think, “We have the record of interview.  He says he doesn’t know when he is spoken to by the police, but he has had a lot of time to think about it before he comes to trial and we know he hasn’t given an explanation.”  As this Court said in Dyers, it should almost generally be the case that proper directions should be given to a jury not to draw an adverse inference from the failure of an accused to testify.  If there is ever a case where such a direction should have been given, it was this one, with respect, and there was ‑ ‑ ‑

KIRBY J:   Was this trial held after Dyers or before?

MR ODGERS:   It was held prior to Azzopardi which is the case where the Court said what I have just referred to.  I have referred to the circumstantial evidence direction.  I respectfully submit that while, of course, every case must be looked at in the particular circumstances, in the circumstances of this case ‑ ‑ ‑

HEYDON J:   Could I just correct one thing.  I thought the trial was on 16 October 2000.  Was Azzopardi not decided in early 2001?

MR ODGERS:   Azzopardi was decided ‑ ‑ ‑

HEYDON J:   It does not matter, but ‑ ‑ ‑

MR ODGERS:   ‑ ‑ ‑ handed down 3 May 2001.

GLEESON CJ:   That is consistent with what you just said, I think.

MR ODGERS:   I am sorry, I am not listening carefully.  I did not pick up the details.  So it is prior to Azzopardi, yes.  Your Honours, I was going to say lots more about the failure to give the time warning, but I think the essence of it is conveyed.  The silence, the failure to warn against any adverse inference from failing to testify, I have dealt with that.  The third aspect of the circumstantial evidence direction, I was saying there, look, you must look at each case; but at the end of the day, what the judge told the jury in this case was, at page 11, line 20:

if there is another finding which is reasonably open on the evidence, that is a reasonable explanation which is consistent with the innocence of the accused, then it would be your duty to find the accused not guilty.

Well, with respect, your Honours, that would have inevitably led the jury to say, “What is the explanation provided?  Well, there isn’t one.”  That is the first thing.  Secondly, “All the defence says is possibilities, but we are told it has to be reasonable.”

KIRBY J:   You have submitted that that reverses or may have the effect of reversing the ‑ ‑ ‑

MR ODGERS:   I say it has the effect potentially of reversing the onus, of imposing a standard on the degree of possibility – sorry, the explanation which is inappropriate and, again, highlighting the failure to give an explanation. 

Lastly, ground 4, we say that the court applied the wrong test to the new evidence.  You had an expert coming along and saying, “This police officer’s evidence that it was a fresh fingerprint was scientific nonsense.”  The police officer had said, your Honours, that he thought it was so fresh that he thought it may have belonged to either the victim or the offender.  That was his evidence.  The impact on the jury of that would have been powerful.  An expert comes along in the Court of Criminal Appeal and says, “This is all scientific nonsense.”

GLEESON CJ:   Yes, thank you, Mr Odgers.

MR ODGERS:   Thank you, your Honours.

GLEESON CJ:   Yes, Mr Smith.

MR SMITH:   Your Honours, in relation to the defence that was put up, or the explanation, at application book page 10 and then again at 14, there is some discussion of the defence, at about line 36 at page 10:

Mr Rolfe made a submission to you a short time ago that the Crown called the librarian because they really did not believe their own case.

Then her Honour goes on to explain how the Crown had a duty to lead evidence of what the practice in the library was.  The Crown has a duty, as her Honour said, to call that sort of evidence.  At 14, at about line 17, after discussing the description of the hair as blonde, it is mentioned that there was a practice of male youths in Deniliquin at the time to dye their hair blonde, and they often had darker colours around the edges, probably shaven.  Then her Honour continues:

The accused points says, or points out rather, through his counsel, that he was 17 at the time of these assaults, not 23 to 25.  Again whether you think that is a material difference in terms ‑ ‑ ‑

GLEESON CJ:   Where is the freckle referred to in the summing up?

MR SMITH:   The freckle?  I do not believe the freckle is referred to in the summing up, your Honour.  It may be, I am sorry, within the description ‑ ‑ ‑

MR ODGERS:   Bottom of page 11.

MR SMITH:   Thank you.  Yes, bottom of page:

She said he had a mole ‑

that is about line 50 ‑

or what appeared to be a large brown freckle on his right shoulder, and you will recall that she demonstrated somewhere around the right shoulder blade.

Now, in our submission ‑ ‑ ‑

KIRBY J:   Does her Honour say there, “You will recall that photographs showed to the accused did not have such a mole”?

MR SMITH:   No, she did not.

KIRBY J:   This worries me.  It worries me because it is an affirmative statement by the victim to which she adhered and which she elaborated.  I realise we are not talking about so‑called unsafe and unsatisfactory, but it does leave me with a sense of disquiet that there may have been a miscarriage here.

MR SMITH:   I agree that it could have been better had it been said, your Honour, but, of course, in witnesses giving descriptions, there is often disagreements between a particular witness ‑ ‑ ‑

KIRBY J:   Of course.

MR SMITH:   A dark freckle could be a bruise.  This is a lady at 5.30 in the morning, Sunday morning, it is probably quite dark, it is August, describing what she sees.  She has just been attacked, or is in the process of being attacked.  It may not be unusual for her not to get that entirely correct, we would submit.  We would submit that not too much emphasis should be put on that.

So far as the first ground of appeal is concerned, the Longman point if I can put that, your Honours, we submit that the applicant had substantial time after he was interviewed to retrace his steps in Deniliquin.  We are only talking about 16 to 17 months.

GLEESON CJ:   There was no explanation of the delay in ‑ ‑ ‑

MR SMITH:   No, not in the evidence.

GLEESON CJ:   I suppose there is a pretty obvious reason ‑ ‑ ‑

MR SMITH:   I know an explanation.

GLEESON CJ:   There is a pretty obvious reason for that when you are dealing with fingerprints.

MR SMITH:   Yes.

GLEESON CJ:   There is usually an explanation as to how the police come to be aware of it.

MR SMITH:   Yes, and the explanation is along those lines.  It is a very slow process.  There are lots of fingerprints to be looked at.

GLEESON CJ:   Sometimes people’s fingerprints do not become available to the police until they have done something else.

MR SMITH:   That is right.  In fact, the detective that gave the fingerprint evidence compared the fingerprint that he found when he was at the premises on the day of the offence, compared that with a fingerprint taken from the applicant when interviewed.  So he had a fresh fingerprint there.

I was just going to say that he worked at a council over the road.  He would have a chance to go and speak to people he worked with on the council.  He would have a chance to speak with friends that he had in the town.  He would have a chance to speak to his family, as to the book.  “Did anyone ever borrow this Jack Hawkins book?”  Firstly, you ask, “Were you a member of the library?”  So the 15, 16 months in a case like this is nothing like the 20 years or so of Longman and the other cases where someone has not even got a date, often does not even have a year, as a period of time, whereas we have the exact date.  It is a Sunday.  Now, we do not know this, but was he a member of a football team or a basketball team or something else?  Were they touring?  Were they away that ‑ ‑ ‑

KIRBY J:   As I understand the point, it is that in that interval the records of the library, which could have readily allowed him to know the people who had borrowed it and therefore to check, were destroyed ‑ ‑ ‑

MR SMITH:   Yes, that is right.

KIRBY J:   ‑ ‑ ‑ and therefore he did not have that means available.  That is not his fault that that is so.

MR SMITH:   It is not his fault.

KIRBY J:   But then you are really left with everyone in the town, which is a big ask ‑ ‑ ‑

MR SMITH:   With respect, your Honour, he is left with everyone that he knows.  Now, a 17 year old boy, whilst he is young and all that, would have a certain circle of friends one would think.  There is just no evidence of what he did.  So to put this up as a rational hypothesis or a possibility of innocence or something like that that might satisfy a jury, we submit more has to be done than this.  There is just no evidence of any effort ever being made. 

Now, I know the onus is on the Crown, but when they are trying to, as it were, create a new principle in a sense, because as far as I am aware Longman so far has been restricted to complaint evidence – the delay in complaint.  This is not delay in complaint.  It was immediate complaint.  It is delay in the investigation process, but, nevertheless, there are things that he could have done that he would not have been so disadvantaged by the amount of time that had passed.

On the second ground, the failure of the trial judge, we submit that again this is a case where the judge could have been damned if she did.  The judge mentioned that, “He could have given evidence but he did not, and you must not hold that against him.”  That is just reminding the jury that he has not sought to explain this.  The way she did it, she has gone through his explanation through the ERISP and that is his case:  he does not know, he was never there, he cannot imagine how it happened, but that is all he can say. 

We submit that by putting in those extra words, whilst in some cases it may be better, in a case like this, which is a pretty personal situation that he is in – it is his fingerprints.  It is not talking of a question of possible wrong identity or matters of that sort.  It is something that he may be able to ‑ ‑ ‑

KIRBY J:   What is the difficulty with the judge saying, “Under our system of justice the case has to be proved and proved beyond reasonable doubt by the prosecution; he doesn’t have to prove that he is innocent”?

MR SMITH:   That is right.  I think she ‑ ‑ ‑

GLEESON CJ:   She did say that.

MR SMITH:   I think she did say that.  All she has not said is that, “He could have given evidence and the fact that he hasn’t given evidence is not something you can hold against him, that he is entitled to that presumption of innocence.”  In some ways it may have done him a favour by not saying that, because our submission is my friend had she said that then the jury would have passed out of their mind any thought that, “Maybe he has done it anyhow and that is why he hasn’t given evidence.”  We say it is a two‑edged sword ‑ ‑ ‑

KIRBY J:   It is a tricky area for judges ‑ ‑ ‑

MR SMITH:   Yes, and her Honour is giving this direction in the light of RPS, which has, as it were, changed the law considerably as applied in this State shortly before this, and so she has just left it alone.  Many would say that was the wise course to take, particularly when the issues are not raised in the trial. 

Now, admittedly his lawyer was reasonably inexperienced but when one looks at some of the questions that he did ask they show some forensic skill and he acts on his instructions.  We submit that it is not appropriate to say that there has been a substantial miscarriage in not giving that direction.  This is not the case, we would submit, to revisit RPS and Azzopardi and Dyers just on that question.

KIRBY J:   What do you say about reasonable explanation?  That has a bit of a ring of reversing the onus of proof.

MR SMITH:   Well, it is consistent, we submit, with Shepherd.  In our written submissions we have ‑ ‑ ‑

GLEESON CJ:   At least she has avoided the amazing words that judges are supposed to say to juries “reasonable hypothesis”.

MR SMITH:   Yes.

GLEESON CJ:   There would not be one juror in 100 who would know what a hypothesis is.

MR SMITH:   No, that is right.  The language she has used ‑ ‑ ‑

KIRBY J:   It is like “paradigm”, a word that must never be used.

MR SMITH:   I am sorry, I think we have put this in our written submission, and I will just come to where.  I think we have referred to Shepherd and the words that her Honour used were exactly what

Justice Dawson said in Shepherd the jury should be told.  So why should she be penalised for using words that a leading decision of the High Court has said are the appropriate words to put?  It may be in some of the more recent cases such as Baartman, they have said you should direct more the position of the Crown and you should not really refer to the accused, but, nevertheless, it is a formula that is consistent with what was said in Shepherd.  We submit that Shepherd is still the law in this land and that what she said is certainly not something that has caused a miscarriage.

As to the question of the fresh evidence, your Honours, we submit that the tests that Justice Carruthers has applied are accurate adoptions of what Chief Justice Gibbs ‑ ‑ ‑

GLEESON CJ:   I think we understand ‑ ‑ ‑

MR SMITH:   Thank you.  Those are our submissions.

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Quickly, he worked at a swimming pool.  So who is to know whether or not somebody brought the book to the swimming pool and left it there lying around and he happened to touch it in some inadvertent way.  How can he investigate that?  In any event, there was not any evidence as to what he did do or did not do by way of investigation and if he had tried to adduce that evidence it would have been inadmissible.

GLEESON CJ:   Did the police in the electronically recorded interview ask him where he was on the Sunday morning in question?

MR ODGERS:   No, as far as I am aware.  My recollection is no.  I am sorry ‑ ‑ ‑

MR SMITH:   We think they did but…..he did not know.

MR ODGERS:   Well, yes.  Frankly, he was 17 years old.  He lived in Deniliquin.  He was being asked about a day which would not have had any particular characteristics, if he was innocent, and hardly surprising ‑ ‑ ‑

GLEESON CJ:   At 5.30 in the morning this happened.

MR ODGERS:   Well, 5.30 in the morning.  No doubt the answer would normally be, “I was asleep in bed.”

GLEESON CJ:   Yes.

MR ODGERS:   But he is not clever enough to even give that answer.  The last point, your Honours, the question of whether Shepherd should be regarded as determining the question once and for all.  Shepherd focused, with respect, more on the question of the proper principle rather than how a jury should be directed.  Can I just take your Honours to Hodge’s Case 2 Lewin 225.  I know your Honours are familiar with it, but it is in the authorities and it is relevant for two reasons.  It is to be found in I think it is the last of the cases that we provided – well, something like the last.  It is a two‑page judgment.  At the very end of the judgment Baron Alderson is reported as telling the jury that:

they must be satisfied, “not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.”

GLEESON CJ:   Does “rational” mean anything different from “reasonable”?

MR ODGERS:   Well, it can.  Words can have different meanings in different contexts.  That is why we emphasise that in the context of this trial and the direction that was given, by inviting the jury to consider whether or not the explanation which had been offered was a reasonable one, it did convey, or potentially conveyed, to the jury a concept which required rather more than what “rational” implies normally.  I have not finished, your Honours.  The next paragraph:

He then pointed out to them the proneness of the human mind to look for – and often slightly to distort the facts in order to establish such a proposition – forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt.

The relevance of that, of course, is to the freckle, because his Honour pointed out that ‑ ‑ ‑

KIRBY J:   That is what I was trying myself to express, but it is ‑ ‑ ‑

MR ODGERS:   It is said there, with respect, very clearly.

KIRBY J:   It is an affirmative statement as against the mere negative.

MR ODGERS:   And it focuses on looking at the circumstances relied on by the prosecution and says, “Well, is there any explanation, any hypothesis – conclusion other than guilt” ‑ ‑ ‑

KIRBY J:   Mr Smith rather skilfully, I thought, tried to say, “Well, it’s an elderly lady, she is 82, she would be confused and shocked and she might have mistaken a bruise for what she described as a mole or something of that kind.”  Bruises heal, moles do not.

MR ODGERS:   Yes.  It would be legitimate to put that to a jury, but the point is that in a trial of this sort judges have to be very careful to ensure that a jury is appropriately aware of what the standard of proof means, to be warned about things that they may forget or may not be aware of and to be told that they must not use certain kinds of reasoning.

Now, all of those three things I have just referred to, the directions failed to do and they failed to even point out to the jury the proposition, “The mole, well, it wasn’t there”, let alone all the other matters that I have raised.  Thanks you, your Honours.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 4.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.11 PM:  

GLEESON CJ:   In this matter, a majority of the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed. 

AT 4.11 PM THE MATTER WAS CONCLUDED