The Queen v Carne

[1998] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 1997

B e t w e e n -

THE QUEEN

Applicant

and

DAVID NICHOLAS CARNE

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 11.08 AM

Copyright in the High Court of Australia

MR B.J. BUTLER, SC:   May it please your Honours, I appear with my learned friend, MR T.A. FULLER, for the appellant.  (instructed by Director of Public Prosecutions (Queensland))

MR M.J. SHANAHAN:  If the Court pleases, I appear led by, MR V.K. COPLEY, QC, for the respondent.  (instructed by the Director, Legal Aid Office (Queensland))

GAUDRON J:   Yes, thank you.

MR BUTLER:   Your Honours, the question which arises on this application is whether the test of cogency, approved by this learned Court in Pfenning v The Queen for the admission of evidence of prior criminal conduct, can be satisfied by proof of a prior relationship, or association, or whether it is necessary to demonstrate similarity of conduct to satisfy the test.  In our submission, that is the point of law which divided the majority judgments in the Court of Appeal.

HAYNE J:   What is the principle that you say permits the Crown to lead evidence of the murder on one day in support of its contention that the accused murdered someone on another day?  Is it any more than that this man is a murderer?

MR BUTLER:   It is, your Honour.  It is this, if I may answer that question by reference to the facts in this case?  What we contend is that evidence of the earlier murder, which was, if accepted, committed by the respondent in complicity with the man, Harris, in New South Wales, when considered in conjunction with the evidence establishing the respondent’s presence at the location of the second - - -

GAUDRON J:   Well, that is a matter to be proved, though.  That is not admitted, it is a matter to be proved.

MR BUTLER:   Yes, it is a matter in dispute but, nevertheless, although that may affect the cogency, we would submit that - - -

GAUDRON J:   Well, it must, must it not?

MR BUTLER:   Well, yes.

GAUDRON J:   Yes, the cogency cannot be taken.  It is a case where the facts speak for themselves, as it were, is it?  It is not a case where there is some modus operandi of such a kind that it is almost certain that the various offences in question were committed by one in the same person.

MR BUTLER:   It is not a case which involves a comparison of similarities; a striking similarity-type argument.

GAUDRON J:   Then, how do you make it admissible?

MR BUTLER:   It is admissible because of the highly probative effect of the relationship, or the criminal association.

HAYNE J:   Well, what is the chain of reasoning that you would, if you proved all of the facts asserted, have the jury follow?

MR BUTLER:   The chain of reasoning is this, your Honour, that the evidence of the complicity in the prior murder, when taken with the presence of the location of the second murder, was so cogent that the only reasonable inference to be drawn from that is that the respondent was a party to the second murder.

HAYNE J:   Well, is the argument, then, he was complicit in murder one, therefore, you should be more comfortable in concluding that he was complicit in murder two?  Is that, reduced to its essentials, the argument you would wish to advance to a jury?

MR BUTLER:   The focus is not on the offence, your Honour, but, rather, the association which is evidenced by the complicity in the first murder.  It is analogous to - - -

GAUDRON J:   That really does raise a question.  This matter seems to have been left to the jury on the basis that they might find guilt on any number of different scenarios, including that the respondent, himself, committed the act causing death.  Is that correct?

MR BUTLER:   Yes, that is so, your Honour.

GAUDRON J:   Well, first of all, let me say I do not see how that has anything to do with any relationship established in relation to the first murder, but I would like to know exactly what the Crown case against the respondent is, or was, that gives the cogency to his involvement in the events of the previous day.

MR BUTLER:   See, the nature of the reasoning that is relied upon by the Crown here, your Honours, is analogous to the reasoning in the decision of Harriman v The Queen, where the prior association involving drug dealing in Perth was admitted in proof of the criminal character of the appellant’s association with the same person in Thailand.  It does not flow from similarity, or, indeed, a comparison of the facts of the two instances.

GAUDRON J:   It has to be a relationship which makes this man guilty in the first degree - guilty as a principal - for the Crown to succeed.  Now, what is the basis on which you say he is guilty as a principal other than than he was guilty as a principal of murder the day before?

MR BUTLER:   The Crown says that the inference may be drawn, from the fact of the association between these two men the day before, that when present throughout the events, which included the killing of the woman on the second day, the respondent either committed the act of killing or, with the necessary intent - - -

GAUDRON J:   Well, that proposition seems to me to bear absolutely no relationship with what it was that the Crown set out to prove about the events of the previous day.  That proposition seems to me to have been one that defies any reasoning process.

MR BUTLER:   Well, the Crown says it was either that, or that he committed an act of aiding with the necessary guilty mind associated with that.

GAUDRON J:   Yes, and you draw the conclusion that he did because, if you prove your case with respect to the events on the previous day, that is what he did then.  That is what Justice Hayne put to you some minutes ago.

MR BUTLER:   The basis upon which it is relied is this, that when one accepts the presence at the location of the killing by the respondent, that the association - - -

GAUDRON J:   Well, let us accept that for the moment. 

MR BUTLER:   Sorry, your Honour.

GAUDRON J:   Accept that for the moment, yes.

MR BUTLER:   Yes.  That the association with the other man, which is evidenced by the involvement in the murder the day before, tells one - - -

GAUDRON J:   Which has to be proved.

MR BUTLER:   Yes, accepted, your Honour.  That those, in combination ‑ ‑ ‑

GAUDRON J:   And which, itself, depends on inference, to a large extent.

MR BUTLER:   No, there is really direct evidence, if accepted, of his involvement in the murder the day before from and admission.  But those together lead, the Crown would say, to a necessary inference that his presence was a guilty presence; it was not an innocent presence.

GAUDRON J:   Well, it may not be - yes, let us assume even that much, which involved three very major assumptions in your favour.  The fact that it is a guilty presence does not necessarily make him guilty as a principal.

MR BUTLER:   No, but the Crown would submit that it is enough that the jury be satisfied of his presence on one of the bases left by the learned trial judge.

GAUDRON J:   Accessory after the fact, it might be.

MR BUTLER:   No, excluding that.  A principal in the sense that either he committed the offence or he aided by an act of encouragement, or an act aiding with the necessary mind.

HAYNE J:   Well, again, to see if I understand the proposition, the argument you would have the jury follow is he was complicit with X in murder one; he was present at murder two with X; he was, therefore, complicit with X in murder two.  Is that the argument - - -

GAUDRON J:   As a principal.

HAYNE J:   - - - complicit with, or principal in murder two?  Which is it?  I am just trying to understanding what, at the end of the day, is the reasoning process you are going to say the jury could or should follow.

GAUDRON J:   Yes.  Well, it is that he was at least complicit in the second murder.  If I just might call to assistance what was said by his Honour Justice Dawson in Harriman v The Queen, at 597.  He said:

It was not so much the similarity of the previous dealings which was important as the nature of the association to which those dealings pointed.

It is that upon which the Crown relies.  The Crown is not seeking to reason that because this man participated in the first murder, then he would, because it was a murder, then murder again.  That would be impermissible reasoning.  But, rather, it is the evidence of the association of the two men: the proof of the involvement of Harris in the second murder; the proof of the presence of the respondent at the location of that murder and, in that context, the prior association takes on the probative force contended for; force which indicates that the presence in relation to either the act of killing with the necessary intent or an act of aiding through association, through intentional encouragement, knowing the other person intended to kill or do grievous bodily harm, that may be inferred.

That is the line of reasoning that I rely upon, your Honours, and my submission is that the members of the majority in the Court of Appeal, although it is clear in the judgment of Mr Justice Dowsett that that line of reasoning was recognised, simply rejected it as evidence of propensity when, I would submit, as was recognised by the learned President in the Court of Appeal, it went beyond propensity and satisfied the test in Pfenning v The Queen. 

My submission, your Honours, is that the tacit error of law which the learned members of the majority in the Court of Appeal fell, is articulated in the respondent’s argument, which is set out in the appeal book at page 125, commencing at line 38.  The argument in that paragraph 3 proceeds, particularly looking at the third sentence:

it is submitted that its use in that way must also be limited by the “underlying similarities” between the facts of the two offences not merely the charges being alike.

In our submission, the line of reasoning does not depend upon a test of underlying similarities, rather, it is reasoning, which is based upon the probative force of the prior association in the context of the other evidence upon the case.

HAYNE J:   What is the significance of the relationship between the two men in determining whether, as principal or as aider and abettor, this accused was guilty of murder on the second occasion?

MR BUTLER:   It goes to the mental state of the respondent.

HAYNE J:   How?

MR BUTLER:   That he had previously associated in a murderous relationship with the other man and, in the context of a killing when he is present, that it offends logic to conclude that he was not an intentional party to that killing.

HAYNE J:   But Harriman, and cases like Harriman, concern the relationship between the accused and, in that case, another person dealing in drugs.

MR BUTLER:   Yes.

HAYNE J:   What is the relationship between this accused and the other man here that bears upon his, the accused’s, intent on the second occasion?

MR BUTLER:   Well, it is a relationship which comprehended an intentional killing.

HAYNE J:   Yes.

MR BUTLER:   Consequently, it is our submission that it follows, once you accept his presence on the second occasion, that that presence could not be innocent, could not have been without the necessary mental element.  Your Honours, that is really the substance of the argument.  I submit that, once one accepts the probative force of the evidence on the basis on which I put it - - -

GAUDRON J:   That is exactly the stumbling block, is it not:  “once one accepts the probative force”, you assume it?

MR BUTLER:   I cannot take my contention in relation to that further.  Once that is accepted, of course, I would submit a point of law arises which is of importance to resolve.  Unless there is anything further, your Honours, those are our submissions.

GAUDRON J:   Yes, thank you.  Thank you, Mr Shanahan, we need not trouble you. 

There is no reason to doubt the correctness of the decision of the Court of Appeal that the evidence in issue in this case was inadmissible.  Accordingly, special leave is refused.

MR SHANAHAN:   Your Honour, there was the aspect of costs raised in the respondent’s argument.  It was on the basis that this particular issue was not raised in the Court of Appeal as a sole reason for admissibility.  The trial and the appeal proceeded on the basis that this evidence satisfied the test in Pfennig in order to prove identity and then it could also be used for ancillary purposes about association and complicity.  It was never argued, the

argument about relationship, association, to prove complicity was sufficient of itself.  It was on that basis that costs were sought in relation to the special leave application.

GAUDRON J:   What do you say?

MR BUTLER:   That is not accepted, your Honour.  It was left as an alternative basis by the learned trial judge.  It was comprehended in the argument which was advanced before the Court of Appeal ‑ ‑ ‑

GAUDRON J:   But is it?  Once it is said against you, in a Crown appeal, that there is simply no reason to doubt the correctness of the decision, are you not in trouble in a Crown appeal?  I know the general rule is that costs are not awarded in criminal cases but, equally, there is a rule that special leave to appeal will only be granted to the Crown in exceptional circumstances and one would think, prima facie, that application would not be made by the Crown unless there was a clearly arguable case. 

MR BUTLER:  All I can say on the costs matter, your Honour, is that notwithstanding the discretion to order costs against the Crown, it is done infrequently and normally in matters that are not legally aided ‑ ‑ ‑

GAUDRON J:   Circumstances have changed with respect to legal aid since the days in which that used to be said.

MR BUTLER:   I have nothing further to advance, your Honour.

GAUDRON J:   Special leave is refused with costs.

AT 11.30 AM THE MATTER WAS CONCLUDED