State of NSW v Knight

[2003] HCATrans 492

[2003] HCATrans 492

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 2003

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

AUSTIN OWEN KNIGHT

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 10.25 AM

Copyright in the High Court of Australia

MR B.H.K. DONOVAN, QC:   May it please the Court, I appear with MR C.L. LONERGAN for the applicant.  (instructed by Crown Solicitor’s Office (NSW))

MR D.R. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR T. MEAKES, for the respondent.  (instructed by Eddelbuttel Solicitors)

GLEESON CJ:   Yes, Mr Donovan.

MR DONOVAN:   Your Honours, the special leave points submitted in this case involve, firstly, reliance on post‑hypnosis evidence by the Master and by the only expert witness on whom the Master relied for the verdict, and, secondly, rejection of incontrovertible facts and independent testimony in accordance with the principles in Brunskill v Sovereign Marine and SRA v Earthline Constructions.  I am not going to go to those cases, your Honour.

If I might start by just pointing out from the application book the way in which the Court of Appeal dealt with the matter.  At page 51, the Court will see that Mr Justice Meagher referred to the evidence of Professor Clement and his Honour then set out what the Master’s summary was of Professor Clement’s evidence.  If I go to line 25, the Court will see that the Master said of Professor Clement:

He then provided a further report.  In it, he expressed the view that the claim of assault by police was quite plausible.  He said that the pattern of injuries is complex and fits with the plaintiff’s story and is consistent with a severe beating.

Now that part about “fits with the plaintiff’s story and is consistent with a severe beating” depends upon what was, in fact, post‑hypnosis evidence from the plaintiff.

GLEESON CJ:   What do you mean by the expression “post‑hypnosis evidence”?

MR DONOVAN:   Evidence which only came into existence, or a story which was only given, after the plaintiff had undergone hypnosis.

GLEESON CJ:   You mean that the following was the sequence of events? 
The plaintiff was hypnotised, then the plaintiff gave the story.

MR DONOVAN:   Yes, that is right.

GLEESON CJ:   What is the connection between the hypnosis and the story?

MR DONOVAN:   Well, the story came about after he had undergone the hypnosis, because three times before he underwent hypnosis he was asked to recount to Mr Bullock the exact detail of what he could recall and he goes up to a certain point where he says, “And then I jumped”, and that is it and no more.  Three times he says that is as far as his memory goes, and that is in the video transcript.  Then, after he is hypnotised, he comes forward with the additional information, “I landed on my feet, I got up, I ran away and then I was assaulted”.  I have just forgotten the exact words.

GLEESON CJ:   So that following the hypnosis, he says, “I can now remember what happened”?

MR DONOVAN:   That is right.  Now there is a confusion there because in the trial he claimed that that piece of evidence that I have just told your Honour was, in fact, evidence that he remembered prior to hypnosis.  That, in fact, was contradicted by the contemporaneous record.  He had never given any such indication of that evidence before.

Now, one of the things that both the Master and, more importantly, perhaps, Professor Clement relied upon was the story, and the story involves that passage which I have just given to your Honour.  What Mr Justice Meagher said at page 51, line 35:

Once that evidence is believed (as it was), the plaintiff must win his case, particularly as the defendant did not proffer any evidence from a forensic dentist.

Now, that, we say, simply is not correct.  That has to be weighed against the powerful objective facts, which we have set out in that schedule which we sent across to your Honour.  If I might, I just might spend a moment going to some of the highlights of that.

The Master rejected the evidence of both police officers, and I have to accept that, but, as against that, there was the evidence of the witness Doherty.  I do not need to go back into the facts of the boys, or some of them, allegedly exposing themselves, but let me just remind your Honours of this.  Mr Doherty was the only independent witness to what occurred.  The plaintiff himself called him at trial.  Both parties accepted his evidence and, in particular, where he saw the respondent jump the fence and where he saw the respondent lying prone on the other side of the fence at the bottom. 

The Master – and this is important to see the significance of Doherty ‑ described Mr Doherty as not having been a close friend of the respondent at the time of the incident.  There had been little association between the two of them since the incident.  He gave his evidence in a neutral manner and we submit that there were only minor discrepancies in his statements and, largely, there was consistency.

Now, this is what the Master said.  The Master said, “Largely, I accept his evidence”, and he said that on more than one occasion.  The Master recorded that Doherty saw Jones chase the respondent before he vaulted the fence.  The respondent vaulted the fence.  Jones was on foot and jogged along the fence, moving south.  Your Honours have that map, which is roughly north/south, the colour map that I sent around.  Your Honours, if you just go to that map, you will see that the respondent ‑ ‑ ‑

GLEESON CJ:   Is this the one you mean?

MR DONOVAN:   That is the one I mean, yes.  He went over the fence from the yellow carpark area into the orange driveway.  Now, on the left, and perhaps I am repeating what you already know, where the carpark is, the fence was about a metre.  On the far side, according to Doherty, where he fell, the fence was 8 to 10 feet.  Now the fence is that thick black line that we have set out there between the yellow and the orange.  It is a little confusing because the driveway, as it runs from south, from the bottom going up, actually gets deeper as it goes to the top, so the south end is a drop of about 7 feet and the north end was about 12 feet. 

Doherty said Knight ran to the fence, put two hands on the fence and vaulted over it – and bear in mind this is 2.00 am in the morning, and this area of the orange driveway was in complete blackness.  Doherty said this, he swung his legs over, probably in a southerly direction so his back was facing the river; there was no hesitation in his running prior to vaulting.

We have set out, your Honours, with the material we sent over, some of the general photographs.  I do not want to go through all of those, because they probably speak for themselves, but can I go to the last two, both of which have marked in green on them “Doherty”.  Your Honours will see, with Exhibit C2, that there is red line showing where Doherty said the respondent jumped, and at K2, which is the last photograph, there is a red stick man showing where Doherty said the respondent landed. 

Doherty was asked this question, “Is it your memory that the mark which you put on photograph C is in the same place, although on the other side, to the mark in photograph K2?”  This is his answer.  “The point he” ‑ that is, the respondent – “went over the fence would be very close to the point, he was on the ground, yes”.  The Master said of Doherty’s evidence on this point: 

His evidence is to the effect –

in accordance with that answer –

that the position of the [respondent’s] body was adjacent to where he vaulted over the fence. 

And then the Master put in this unjustified qualification: 

However, his observation was restricted to what could be seen from the back seat of the police vehicle. 

It was never suggested by either party that Doherty’s view of where the respondent jumped or where the respondent was found was in any way restricted, nor was there any evidence to suggest that it was restricted.  His window of the police car was wound down and, on his own evidence, he said he could see what happened, in terms of the jump and in terms of where the respondent was on the other side of the fence.  He had a gap in the memory of the car driving around the bottom of the driveway.

As I said before, the Master repeated a number of times that he had formed a favourable impression about Doherty’s credibility and reliability, both of them.  What happened after the jump is, of course, what is in dispute.  We say that the irrefutable evidence of Doherty showed the respondent was found at the place where he landed and the only contrary evidence was from the respondent himself, who alleged he jumped towards the south end of the fence, where it was lower.

There are important background matters.  Doherty, who had been apprehended earlier, said, when he was picked up, there were no arguments with the police, no aggression, no fighting, they did not speak in any aggravated way, when they questioned him they were not upset or angry and at no stage did he feel physically threatened.  He further said that, as they drove through the carpark down to the driveway, he heard no screaming or shouting, no officers yelled out any threats towards the respondent and he saw nothing which suggested to him that there was any aggression or motivation for the assault.

We sent over a list of what we have extracted from the findings and from the evidence of Doherty and can I just point out a few of them, your Honour; not all of them, but just to go back.  There was a real problem about Jones having any opportunity to carry out the assault in the time alleged.  Doherty said in one of his statements that the car proceeded at a “fast jogging pace” and Jones was ahead of the car.  Doherty said that the car did not stop, but continued from the time Jones got out, continued right around through the carpark and up into the driveway.  The Master made this finding:  he said the car went slowly.  That finding was wrong, there was no evidence to support it and Doherty said it went at a “fast jogging pace”.

Now, it follows from these matters – and still bearing in mind the complete blackness in the driveway – that there was only a very short time before the car turned the corner and its lights shone onto the driveway, onto the respondent and onto Jones.  Therefore, Jones had insufficient time to catch the plaintiff.  The Master put forward this very odd scenario, that maybe Jones chased the plaintiff, caught him, bashed him, carried him back to the fence area, where he laid him down – in complete darkness, we hasten to add – in the exact position as if he had fallen and injured his face and head, all within a matter of some seconds.  All that had to be done in total blackness, apart from carrying his torch.  That is fanciful.

According to the plaintiff’s expert theory, there had to be three or four blows.  It is impossible in the dark, with a moving target, that three or four blows would land only on the left face and side of the head.  The alleged assault, your Honours, was a near murder.  One has to think about the violence that was said to be perpetrated.  Near murderous force would be required for blows to cause this plaintiff’s injuries.  The blows did not represent a bit of police irritation having to chase the plaintiff.  The alleged assault involved beating a person completely unconscious, for a number of days, with obvious injuries and brain damage, in an unprovoked situation.

Jones had no motive for the assault.  Knight was unknown to him.  He was a drunken New Year’s Eve reveller at the most.  Jones believed, and it was a fact, that the offence was trivial and Jones said that he may well have warned the boys and sent them home, if it were not for the accident.  There was no means for Jones to carry out this assault.  No weapon, other than the torch, was available.  Jones’ hands would not be sufficient to carry out such an assault and there were no injuries on them.

The Master said that only Jones’ torch had the potential to inflict the injuries.  There was no suggestion of any blood on the torch and it is overwhelmingly unlikely that a person would destroy their only source of light, in a pitch‑black area and leave themselves defenceless in the dark.  There was no blood on his uniform.  Jones would know that the car was following closely behind him and as soon as the car came around the corner, if he was in the process of bashing or carrying anybody, he would be seen, not just by the other police officer, but by Doherty.

Doherty himself said that when Jones came to the police car in the driveway, he said that Knight had fallen and hurt his head.  The plaintiff was unable to produce any admissible evidence, apart from this hypnosis, to show that he was, in fact, conscious and mobile after he jumped.  A fall of some 10 feet onto the face and head would be likely to render a person unconscious.  The lack, your Honours, of genuine memory from the point of time after the jump is consistent with loss of consciousness at that time.  So we say, in conclusion, three things:  no motive, no opportunity, because not enough time, and no means.  The only suggested means was the torch.

Now, let me move on to how the Master and Professor Clement dealt with the hypnosis evidence.  The Master said this – and I will just deal with this very briefly – at page 38, line 10, about what he called the pre‑hypnosis evidence – it was, in fact, as we say, post‑hypnosis evidence.  The Master said this:

I have been able to make the finding of assault without recourse to evidence concerning the incident given by the plaintiff himself.

Your Honours, that really was not true, because the Master relied on Professor Clement, who in turn relied upon what the plaintiff had said to him.  Now, I have to qualify that in a minute, and I will come to that, but nevertheless Professor Clement’s reasoning makes use consistently of the plaintiff’s version.  Then the Master says:

Whilst his evidence of pre‑hypnosis recollection has to be treated with great caution, I do not consider that it needs to be totally disregarded.

That is the Master’s statement about it.  Let me now deal with Professor Clement.  Professor Clement’s evidence was that he took into account the recollections of the circumstances under which the injuries had been sustained.  He said, “The history of the alleged assault by police upon the respondent and his subsequent medical problems were noted in point form by myself and Dr Hill.  Our combined notes form the verbatim account”.  Then he said this:  “However, his story” – that is, the respondent’s story – “of what happened to him when he was injured was clear and very consistent in what he remembers.  It is consistent with previous iterations, which may have been the result of having to recount it many times already, but it is also consistent with the pattern of his injuries”. 

Professor Clement said he took into account injuries to the back of the neck, which were, in fact, without any external injury, and he said that he began to develop the idea that there were blows coming from multiple directions.  He said he was told by Professor Cordner that the man had been assaulted.  Then he said this:  “When one examines a patient it is always important to request what the history of the presenting patient is.  This man

came to us and we felt we should find out what his version of the events were prior to arrest”. 

GLEESON CJ:   Thank you, Mr Donovan.  We do not need to hear you, Mr Campbell.

In the light of the concurrent findings of fact in this matter, there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused with costs.

We are just going to adjourn for a short time to reconstitute.

AT 10.46 AM THE MATTER WAS CONCLUDED