Swansson v The Queen

[2012] HCATrans 60

[2012] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S342 of 2011

B e t w e e n -

DAVID ANTHONY SWANSSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 2.16 PM

Copyright in the High Court of Australia

MR C.P. TAYLOR:   May it please the Court, I appear with my learned friend, MR N.W. HOGAN, for the applicant.  (instructed by Blair Criminal Lawyers)

MR W.G. ROSER, SC:   If the Court pleases, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Yes, Mr Taylor.

MR TAYLOR:   Your Honours, the reasoning of the Court of Criminal Appeal exposes a fundamental problem within its approach to its task.  That statement applies here in this case.  That statement will be familiar to your Honours as it was, in fact, your Honour the Chief Justice’s statement in a joint judgment with Justices Gummow and Kiefel in the case of SKA v The Queen.  The additional bundle that I hope was delivered to your Honours yesterday morning, at page 190 of that bundle provides that statement at paragraph 20.

FRENCH CJ:   Yes.

MR TAYLOR:   SKA, in my respectful submission, is significant in that the task of the Court of Criminal Appeal in determining an appeal pursuant to section 6 of the Criminal Appeal Act 1912 is considered, in particular, in paragraphs 11 to 14 of that judgment, SKA, and that appears at your Honours’ page 188 to 189 of that supplementary material.  Particularly, as your Honour the Chief Justice would recall, the words of this Court in SKA were, and I say somewhat unusually in this regard:

It is agreed between the parties –

but I withdraw then the unusuality in relation to what follows –

that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal . . . is as stated in M v The Queen –

and, of course, this Court went on to quote M v The Queen in saying that the question the Court of Criminal Appeal must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

FRENCH CJ:   This all goes back to MFA, M, Jones, Chidiac and so forth which you have referred to.

MR TAYLOR:   That is so, yes.

BELL J:   The principle is a well known one.  It had a particular application in SKA in circumstances in which a number of aspects of the case had been not addressed in terms by the Court as a recollect it.

MR TAYLOR:   Thank you, your Honour.

BELL J:   This is a rather different case and might be considered against the test by reference to its facts and circumstances.

MR TAYLOR:   Indeed, it is a different case, your Honour, and what might appear in the written submissions that appear in the appeal book are somewhat different to the thrust I am imploring your Honours to receive today and that is that I do not cavil with the test as set out in M, in MFA as is recorded by this Court in SKA.  What is significant, in my submission, though, is that what SKA identified was that – and I will run through these matters reasonably briefly:

the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”.

I am making reference to SKA, paragraph 14, and this is recited in paragraph 6 of the outline of oral submissions.  So it is both as to sufficiency and its quality.  The CCA must make:

its own independent assessment of the evidence and determining whether –

and this is a significant matter, is it not –

notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.

Turning now – now that your Honours have an indication as to what part of SKA I am relying upon – to the judgment of the Court of Criminal Appeal.  Your Honours see and have no doubt read the judgment of Justice RS Hulme with whom the Chief Justice at Common Law and Davies agreed.  In my respectful submission, with respect to the Court of Criminal Appeal, that court did not even approach the exposure of reasoning of her Honour Justice Simpson of the Court of Criminal Appeal that was the subject of criticism and inquiry in SKA.  This is a distinguishing feature that would hive off any suggestion, but Justice Hulme did form an opinion and did apply or approach the test correctly – and I take your Honours back to paragraph 7 of the outline of oral submissions.  Her Honour Justice Simpson said:

I am satisfied, on the evidence, that it was open to the jury to reach the verdicts it did.

Her Honour went on to say –

To the extent that it is relevant, I would also be satisfied beyond reasonable doubt, on the evidence, that the [applicant] committed each of the offences charged.  I would dismiss the appeal against conviction. 

In SKA this Court held Simpson J had not exposed her reasoning notwithstanding her judgment –

that I have just taken your Honours to.

BELL J:   Mr Taylor, SKA depended on the facts of SKA.  Could we turn, perhaps, to the application of the well‑established test applied in SKA, being the M test, to the facts here and to the approach that was taken?  If one looks at the judgment, one sees that Justice Hulme was mindful that the Crown case was entirely circumstantial.

MR TAYLOR:   Yes.

BELL J:   Application book 164, paragraph 8.  In the following paragraph, his Honour commences to set out a number of the circumstances relied upon in the Crown case.  Now, his Honour’s summary of the circumstances commences at an early point in the judgment where he is dealing with those grounds that were critical of the Crown Prosecutor’s closing address, but his Honour makes clear it is a review that is also relevant to his consideration of ground 5, which is the matter with which we are presently concerned.  There is a setting out of a number of circumstances that might be thought quite powerful in his Honour’s judgment.  When one goes over to the conclusion respecting ground 5, one sees an analysis of those circumstances and his Honour’s conclusion against that background, that is was open to the jury to reject your client’s evidence.  Where is the failure to see the Court of Criminal Appeal engaging in its statutory task of reviewing the sufficiency of the evidence to support the verdict?

MR TAYLOR:   Relying upon what is said in SKA as to what is required.  In my respectful submission, the Court of Criminal Appeal has failed to form an opinion in relation to the state of the facts.  It has failed to make a proper independent assessment of the whole of the evidence to determine whether this person was guilty of the crime or not.  There are significant problems with respect to the manner in which the judgment of the Court of Criminal Appeal fails to expose any sort of reasoning that would be consistent with what is required of the Court of Criminal Appeal.

FRENCH CJ:   Well, now, perhaps you can narrow this down a bit.  What should Justice Hulme have said that he did not say?

MR TAYLOR:   Well, curious it is that at the time that Justice Hulme delivered his judgment, it was pre‑SKA.  SKA is delivered by this Court.  A very good example of addressing the matters that Justice Hulme should have is set out in the judgment of Wood v The Queen.  There is a comprehensive analysis of all of the evidence within the trial, a proper competing ‑ ‑ ‑

FRENCH CJ:   Can you focus upon what he ought to have done here, in this particular case?  You had a circumstantial case against the applicant.  He appears to have reviewed a lot of the relevant circumstances.  What has he left out?

MR TAYLOR:   Well, there is an absence of exposure of reasoning, and if I can give your Honours an example.  At paragraph 74 in his Honour’s judgment – and this is the word of his Honour – he echoes the judgment of Justice Simpson in saying:

there is “much to be said in respect of the Crown’s arguments, particularly in relation to the use of false names, going well beyond what could reasonably have been necessary to achieve the purpose stated by the appellant ...”

But what his Honour does not do ‑ ‑ ‑

FRENCH CJ:   This is in the earlier appeal in these proceedings?

MR TAYLOR:   They are the words that Justice Hulme has echoed, that is so, of Justice Simpson.

FRENCH CJ:   Your client was successful.

MR TAYLOR:   That is so, your Honour, yes.  But what his Honour Justice Hulme does not do is draw a conclusion of guilt beyond reasonable doubt.  He does not expose any reasoning capable of demonstrating to the exclusion of reasonable doubt, in particular, that the applicant knew of or identified that relevantly drugs would be in the refrigerator.

FRENCH CJ:   Can it be said that these circumstances, the collocation of the circumstances to which he referred put in context, speak for themselves in terms of the inference that he draws from them?

MR TAYLOR:   That is the height of my learned friend’s argument, I am sure, that one is attracted to the notion that an experienced judge of the Court of Criminal Appeal of course would have been mindful of the correct approach to the task, but it does not appear in the reasoning and it requires an assumption that these things have been attended to and in the context of Justice Hulme quoting Justice Simpson, who came under heavy criticism of this Court in SKA, in my respectful submission, it indicates ‑ ‑ ‑

FRENCH CJ:   Justice Simpson’s judgments are not blackened for life because of remarks made in SKA.  That was that particular case.

MR TAYLOR:   It was, but Justice Hulme echoes ‑ ‑ ‑

FRENCH CJ:   It is a bit hard if every judge’s subsequent judgments were to be called into question because of something that was said about an earlier judgment.....similar fact evidence simply applied to judgments.

MR TAYLOR:   It is the approach though, your Honour, that comes under criticism.

BELL J:   Mr Taylor, would it be fair to say that the circumstances against the applicant were overwhelming save for the account that he gave, which was, having regard to his previous difficulties with Customs, he had, at the request of the middle person, agreed to use a false name in order to facilitate the importation of the refrigerators without any knowledge on his part of the drugs contained within them?  Now, there is a limit to how much explanation of the damning circumstances of the various objective circumstances attending your client’s involvement in the importation, the utility of going into a discussion.  Was it necessary for Justice Hulme to say in his view the circumstance of using false names, of leaving one’s business premises and going to a public phone to make phone calls and things of that character had a sinister quality or was it sufficient to simply recite them and come to the conclusion that, notwithstanding your client’s evidence, it was open to reject that evidence, to note that he had formed his own view of the evidence and to conclude that the appeal ground had not been made good?

MR TAYLOR:   There was, in my respectful submission, a wholesale failure of his Honour Justice Hulme to consider the entirety of the circumstances.  I agree that if one simply looks at Justice Hulme’s judgment, there is a case that the Crown advocated at the trial level to indicate, well, there is a case for the Crown, but there are a body of circumstances as well that had not been adequately weighed, and that is the shortcoming in this judgment that his Honour makes, and his words are, a number of other disparate matters raised by the appellant, in paragraph 72, that such matters were not compelling but were possibly of persuasive value.  That is not a weighing, in my respectful submission, of all of the matters.

What might be said is that in looking at, and addressing your Honours’ overwhelming matter of circumstance, what might be said is that all of the matters raised as the backbone and the theory of the Crown case are entirely consistent with a hypothesis consistent with innocence.  There has been a wholesale failure to weave into the weighing of the evidence matters such as this 12 December phone call where the guilty conspirators do in fact say that, in effect, it could be gleaned that Mr Swansson, the applicant in this case, knew nothing of the circumstances.

BELL J:   That is the matter addressed by Justice Hulme in paragraph 74?

MR TAYLOR:   That is so, your Honour, yes.  Fleeting reference to that without forming any significant opinion, it might be said, as was required, with respect ‑ ‑ ‑

BELL J:   The opinion is expressed in paragraph 74, is it not?

MR TAYLOR:   Well, he does say that he has formed an opinion.  He does not say what that opinion is.  “Well, Mr Taylor, surely” – he says that in his last paragraph when he says, “I am satisfied that the jury are entitled to arrive at the verdict” – that he has, but he does not say what the opinion is.  He does not address the crucial element as to whether this man had in his mind knowledge of the existence of the drugs or otherwise.

BELL J:   There were, I think, two alternative views open on the evidence you would say, Mr Taylor, one of which was that the circumstances pointed to your client’s knowledge of the clandestine drugs in the refrigerator, the other that for reasons to do with his earlier difficulties with Customs, he had used an assumed name but knew nothing of the drugs.  Justice Hulme in the concluding portion of paragraph 74 adopts the expression of opinion of Justice Simpson in the earlier appeal relating to this aspect of the evidence, which was that the use of the false names and other evidence summarised earlier in his Honour’s reasons went well beyond an adequate explanation which would support acceptance as a reasonable possibility of the version that your client gave.  Surely that is the reasoning.

MR TAYLOR:   Well, that begs the question, if a person uses a false name, does that, without any further analysis, necessarily implicate that the person had a guilty mind?  Now, he had an explanation for using the false names and, in my respectful submission, there is some merit in saying, well, questionable but reasonable, but this appeal, in my respectful submission, is not about whether your Honours consider whether this person had a guilty mind, whether he knew of the existence of the drugs.  It is about a failure, in

my respectful submission, on the part of the Court of Criminal Appeal to approach its task in the manner that it should.

This man, Mr Swansson, the applicant, was denied the opportunity of having the Court of Criminal Appeal analyse the matter, analyse the evidence, form an opinion, exclude all reasonable possibility of innocence and arrive at a determinative decision as to whether he was guilty or not, and that is not demonstrated in the judgment of the Court of Criminal Appeal.  That thereby, in my respectful submission, along with a wholesale failure to consider the circumstantial nature of the case – of course his Honour Justice Hulme recognises it is a circumstantial case, but does not make any reference at all or go through the process necessary in Martin v Osborne and further cases, to indicate that he has analysed, given weight to the competing evidence, established facts from which a rational inference can be drawn.

In my respectful submission, it is blatantly evident that there has been a failure to address the reasons that were required or to expose the reasoning that was required and thereby failed in its statutory responsibility, with great respect to the Court of Criminal Appeal, as I say, with the consequence that Mr Swansson has been denied his right of appeal under the Criminal Appeal Act and this mater ought, in my respectful submission, be dealt with on the basis simply that special leave be allowed, it be reverted to the Court of Criminal Appeal for that court to determine, in accordance with the Criminal Appeal Act, the matters that should have in a way that we see in Wood v The Queen, for example.

There is a second element to the application and that relates to the circumstances that combined – and this relates to a matter as to whether there is a miscarriage of justice with respect to the matters raised by the Crown in overstepping its mark, if it can put it that way, in poisoning the atmosphere within the court in circumstances where it very much relied upon the jury’s determination as to the credibility of Mr Swansson.  May it please the Court.

FRENCH CJ:   Thank you, Mr Taylor.  We will not need to trouble you, Mr Roser.

The applicant seeks special leave to appeal against a decision of the New South Wales Court of Criminal Appeal dismissing his appeal against a conviction for aiding, abetting, counselling or procuring an attempt to import into Australia a quantity of ecstasy.  The applicant contends that the Court of Criminal Appeal failed to apply the correct test when it rejected his ground of appeal that the verdict of the jury was unreasonable and could not be supported having regard to the evidence.  It is said that the Court of Criminal Appeal failed to consider the entirety of the evidence in the case. 

After a comprehensive review of the evidence, the Court of Criminal Appeal held that the verdict of guilty “was one at which the jury were entitled to arrive.”  In context, the approach taken by the Court was consistent with the test enunciated by this Court in M v The Queen (1994) 181 CLR 487 at 493 and MFA v The Queen (2002) 213 CLR 606 at paragraph 55, namely, it was “‘open to the jury’ to be satisfied of the accused’s guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict ‘upon the whole of the evidence’”.

The Court of Criminal Appeal identified the circumstantial character of the case against the applicant.  In our opinion, its reasoning was adequately exposed.  No error of principle warranting the grant of special leave is demonstrated.  No other ground for the grant of special leave is made out.  Special leave will be refused. 

The Court will now adjourn to reconstitute.

AT 2.39 PM THE MATTER WAS CONCLUDED