Stafford v The Queen

[1998] HCATrans 112

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B57 of 1997

B e t w e e n -

GRAHAM STUART STAFFORD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 12.04 PM

Copyright in the High Court of Australia

MR R.V. HANSON, QC:   If your Honours please, I appear with my learned friend, MR N.J. MACGROARTY, for the applicant.  (instructed by Carew & Company)

MS L.J. CLARE:   If the Court pleases, I appear with my friend, MR T.A. FULLER, for the respondent.  (instructed the by Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mr Hanson.

MR HANSON:   As your Honours will have seen, the applicant has been convicted of murder on a circumstantial case.  The Crown presented a theory, or a scenario, as it was called, to the jury as to where and when he killed the deceased and how he disposed of her body.  Further expert evidence has come to light since the trial.  That evidence has been examined in the Court of Appeal, and that evidence has persuaded each of the three members of that Court that the Crown’s theory is, to use the expression below, unlikely to be correct.  From that point, the Court of Appeal split.  The majority applied the proviso and dismissed the appeal.  The President would have allowed the appeal. 

Our first submission is that it is well established that where, by misdirection on the law, or the facts, a jury may have followed a false line of reasoning, that amounts to a miscarriage of justice and the proviso cannot be applied.  We have given your Honours three authorities for that proposition in our outline.  They are Crofts, Mackenzie and Prasad.  You will see that at page 174 of the application book.  Crofts was a case of a misdirection on the law as to the effect of a delay in complaining of a sexual attack; Mackenzie was a solicitor convicted of perjury - that was a case of a misdirection on the law as to the definition of the offence of perjury; Prasad was a case of a misdirection on the facts, which, if followed, would have led the jury to a false line of reasoning.  In each of those three cases, the court said that a misdirection amounted to a miscarriage of justice.  Since the court could not determine the jury’s line of reasoning, the proviso could not be applied.

Now, our special leave point is this:  does the same principle apply where no misdirection led to the jury to a false line of reasoning, but further evidence discovered since trial shows that the line of reasoning they were asked to follow by the Crown was - and I quote from the President’s judgment - “wrong in critical respects.”  Our submission simply is that there is no reason, in principle, why those same principles should not apply in such a case as this, because it must be said that a conviction, in those circumstances, can now be seen to be fundamentally flawed, in our submission.

McHUGH J:   Well, flawed only in the sense that new evidence, as opposed to fresh evidence, for the most part, may raise some questions as to whether the Crown theory as to how and where the murder was committed was correct.  But that really was not the issue that was ultimately left to the jury, was it?

MR HANSON:   There was only one theory - on our argument, only one theory left to the jury as to how and where the offence was committed and how the body was disposed of. 

McHUGH J:   The case against the applicant was really based on the physical association between his car, and what was found in the boot, and the deceased’s body.

MR HANSON:   That cannot be denied, your Honour.  That is true.

McHUGH J:   And a few other things, like tyre tracks - - -

KIRBY J:   A missing mallet.

McHUGH J:   - - - putting the garbage out, telling lies, matters of that nature.

MR HANSON:   Yes.  It was a circumstantial case, such that each of the three members of the court below felt that he would probably be convicted upon a retrial, even with the new evidence.  That, in our submission, does not matter.  Wilde’s Case is authority for that proposition.  We have given your Honours the reference over the page, at 175, and I might read your Honours the passage from Wilde 164 CLR.  It is, of course, the case on the proviso but, after discussing the traditional question of a proviso, at 372 and 373 the Court went on to talk about a different case; a case where there is a fundamental error, so that it can be said that the trial has been, in some way, falsified.  The discussion of that further topic commences at 373, the paragraph commencing “However”.

However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental.  In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was.

There is a quote, then, from Quartermaine’s Case and, at the foot of the page:

This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all.  It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outward technicality” -

quoting from Chief Justice Barwick -

it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted.

Mr Justice Deane wrote a separate judgment and, over the page, at 375 he said something similar in the second paragraph of his judgment, at 375.

KIRBY J:   I think we are pretty familiar with the principles, and very strict principles, relating to “proviso”.

MR HANSON:   I am sorry, your Honour.

KIRBY J:   I say the Court is very strict in relation to the principles applying the proviso, and you do not really have to tell us about those.  The question is whether, against the background of a case in which there was so much circumstantial evidence, and where this was simply a theory which was not really necessary to the jury’s determination, in the way in which it was presented it really, now, results in the fact that your client has not had a chance to deal with the wider theory, or a different theory.

MR HANSON:   Yes.  That is one of our points, yes.  And that is the way it happened.  As your Honour said, it was not necessary.  It was not, but the Crown chose present its case to the jury in a particular way, nominating a place and a time and how the body was disposed of.  That is how the case was fought.

KIRBY J:   But it is only a theory.  In the nature of things, they were not there.  They cannot tell for sure.  It was only put forward as a possibility.  But the things that were not possibilities were the mallet was missing, there was no explanation that your client could offer for the blood or the maggot in his own car, he had injuries to his arm which were unexplained, there were car tracks that were consistent with his car, he put out the garbage, which was not his practice, and that is just a few of them.  I think it is a very, very strong Crown case, especially the maggot.

MR HANSON:   Everything your Honour says persuaded those - all three in the Court of Appeal to say “He will probably be convicted,” yes.  But the question is, has he had a proper trial - a fair trial, now that we know the line of reasoning the injury were invited to follow led them up a false path.

McHUGH J:   Well, it may have but, in weighing this up, this is a very different case from cases like Wilde.  Now, you are relying on new evidence to reject a particular theory that was put.  In fact, you want to rerun a case that you did not run before.

MR HANSON:   Well, we would like the opportunity to meet - - -

McHUGH J:   Yes, I know.

MR HANSON:   - - - an opportunity to meet another case.

McHUGH J:   But Justice Davies took the view that, even with the new evidence, there was no significant possibility that a jury, acting reasonably, would have acquitted the applicant.  Now, that was the view taken.  Why should this Court grant special leave to - - -

KIRBY J:   Justice Fitzgerald, who dissented, said that he thought the jury would probably convict the applicant.

MR HANSON:   Yes. Well, yes, even though he would have allowed the appeal, he said that - - -

KIRBY J:   An exercise in futility, really, given that this was simply a theory.  It was not, as it were, a fact or evidence, it was a theory.

MR HANSON:   It was the only theory that the Crown hung its hat on, though, your Honour, and it is the basis on which the trial was fought, and it was reinforced for the jury in the summing up, and that is what they were asked to consider in deciding the ultimate issue:  “This is where he did it, this is when he did it, and this is what he did with the body.”

KIRBY J:   But the jury are practical people.  They know the Crown was not there and does not know; it is just being put forward as a theory for their consideration.

McHUGH J:   Yes.  Lawyers love theories, but juries are to look at hard evidence, like maggots - the maggot in the accused’s boot; the same sort of maggot that was on the body.  The blood of the deceased in the car.  Add to that a few lies, or a lie, and other events, evidence of tyre tracks, and it is a very strong circumstantial case.  I will not say it is the strongest case I have seen, but it is certainly a powerful case.

MR HANSON:   Well, some of those matters were the subject of the additional evidence, your Honour, of course; for example, the tyre tracks - there has been a back tracking on that issue, by some experts.  The maggots ‑ the further evidence deals with the age of the maggots, which falsifies the Crown’s theory as to how long the body had been in the boot of the car, or when it might have been put there.  There is evidence about the blood which falsifies the Crown’s theory.

McHUGH J:   Plus the fact that your client was left alone with the deceased.  There is no evidence that anybody else was seen in her company. I know, from the time the accused was seen in her company - I know that you seek to rely on some evidence about sightings but - - -

MR HANSON:   Yes, there is some evidence.  But, of course, she is not found - she goes missing on the Monday, and is not found until the Thursday, so there is scope for other persons to have done it.  But we rely heavily on Wilde’s Case.  It does not matter if the Court thinks that - I think the language in Wilde’s Case was even stronger than the language used in the Court of Appeal in this case, that he will inevitably be convicted - “inevitably” is the phrase - so, in this case, accepting that that is so, the question is, can it be said that the line of reasoning which the jury followed was fundamentally flawed, as we now know, and, so, should there be a retrial?

Prasad’s Case is one that we rely on particularly, because that is a case where two directions were given to the jury on the facts.  Prasad 68 ALJR 194 is a very short report. It is a murder in the street by stabbing. There were some boys who were eyewitnesses to seeing people in the street. There was a direction to the jury on the effect of the evidence of the boys which was, in one respect, said to be acceptable but, in another, a positive misdirection. The Court says, at page 195, left-hand column, between letters B and C, the sentence commencing:

Nevertheless, the earlier misdirection might have led the jury into an entirely false line of reasoning.  It is impossible to be satisfied that the jury did not convict in reliance upon the direction that the fact of the presence in the street together of the applicant and the deceased could be found on the evidence of the boys alone.  If the jury so found and the finding was used as a foundation for the drawing of the ultimate inference of guilt, there was a miscarriage of justice.

At the top of the next column the Court says:

The error was in truth a positive misdirection.  Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. 

And it is not a case for the proviso.  We seek, by analogy, to apply those principles to this case, where a jury might have followed one reasoning that was perfectly legitimate and open to them, but they may also have followed a line of reasoning which they were invited to follow by the Crown which is now know to be false and, if they did that, we are fairly and squarely within the.....principles.

McHUGH J:   Well, they may have, but the point against you is the judges in the Court of Appeal held that, even if the jury had the new evidence, there was no significant possibility that they would have acquitted your client.

MR HANSON:   True, your Honour, yes.

McHUGH J:   Well, that is a finding of fact, Mr Hanson.

MR HANSON:   Well, I can only say we rely on Wilde’s Case, where the language is stronger, “inevitable” to be convicted.  I do not know whether your Honours were concerned about whether this is fresh evidence or not.  In our submission, it does not matter.  Some two members of the court thought it was.  Mr Justice Fitzgerald did not make the distinction.  Our submission is it does not matter.  There is a traditional caution about fresh evidence where it goes to the credibility of witnesses, but that is not this case, of course.  We are dealing with scientific evidence from forensic scientists which falsify the theory the Crown invited the jury to follow.

So, there would be no problem from our point of view, in our submission, from the fact that the evidence does not, all of it, satisfy the fresh evidence test.  It simply is new evidence, and it shows that the jury may have followed a path which was quite false.  Your Honours, I do not think I can assist you any further.  We have taken the point, in our outline, that Mr Justice Davies in the Court of Appeal says that the jury had the case left to them at large by the summing up, and he quotes a couple of passages from the summing up.

McHUGH J:   Yes.

MR HANSON:   We take issue with that, and our submission is that the passages that his Honour points to are only passages in which the trial judge is dealing with the defence submissions.  The two passages he extracts are at pages 151 and 152, and the passage at the foot of 151 comes from page 51 of the application book and, if one goes back to the several pages preceding that, the judge, in that context, is dealing with defence submissions.  But more particularly is that so if one looks at the next passage that he quotes, which commences at the top of 152, which comes from pages 62 and 63 of this book and, if one looks at the foot of page 61, you will see that his Honour is responding to defence submissions.  So, he is not putting another Crown proposition to the jury, he is taking issue with a defence argument.

So, the sum total of it all is, in our submission, that there was one and only issue at trial as to how this crime was committed, that is now falsified by subsequent evidence, and there has not been a proper trial.

McHUGH J:   The Court need not hear you, Ms Clare.

The applicant seeks special leave to appeal against a decision of the Court of Appeal of Queensland refusing to set aside his conviction for murder.  He contends that new evidence undermines, if it does not destroy, the prosecution theory as to how and where the murder was committed.  A majority of Judges in the Court of Appeal held that, although the theory was in the forefront of the prosecution case, the case was left to the jury on a more general basis whether all the circumstances of the case pointed to the applicant’s guilt. 

We see no reason to doubt the correctness of that conclusion and that in itself would be sufficient to dispose of this application.  But there is more to it than that.  Proof of the applicant’s guilt was based on the physical association between the applicant’s car and the dead body of the deceased woman.  As Justice Davies found, although the new evidence may make it unlikely that the applicant killed the deceased in the house and left her body in the boot of the car for two days, there is no significant possibility that a jury acting reasonably would have acquitted the applicant if they had the new evidence before them.  The Court of Appeal made no error in finding that no miscarriage of justice has occurred. 

The applicant placed considerable reliance on a number of cases in this Court dealing with the application of the proviso.  Particular reference was made to Prasad v The Queen (1994) 68 ALJR 194 where the Court, having identified a positive misdirection, went on to say:

Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded.  It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal.

Mr Hanson, for the applicant, contends that the new evidence shows that it is very likely that the jury was misled into a false line of reasoning in this case and it was therefore impossible for the Court of Appeal to be satisfied that this applicant did not lose a reasonable opportunity of acquittal.  However, the short answer to that submission is that, in the circumstances of this case, there is no significant possibility that a jury acting reasonably would have acquitted the applicant if the new evidence had been before them.

In those circumstances, special leave to appeal must be refused.

AT 12.27 PM THE MATTER WAS CONCLUDED