Cannon v The Queen S138/1993 [1994] HCATrans 148 (7 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S138 of 1993

B e t w e e n -

KENNETH BARRY CANNON

Applicant

and

THE QUEEN

Respondent

Second Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 DECEMBER 1994, AT 12.04 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If it please the Court, I appear with MR D.E. BARAN, for the applicant, in this matter. (instructed by Hovan & Co)

MR N.R. COWDERY, QC: If it please the Court, I appear for the respondent, with MR P.G. BERMAN. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (NSW))

BRENNAN J: Yes, Mr Basten.

MR BASTEN: Your Honours, the Crown case against the applicant in this matter turned upon it establishing firstly that he was in the presence of the deceased on the night of her death; that was a matter which was ultimately admitted. Secondly, his presence on the river bank where her body had been disposed of, and it was in fact he who drew the attention of the authorities to the apparent violence of the scene, and thirdly, the coincidence of those two factors was bolstered by certain changes in his account of his whereabouts as told to the police over the period between 1987 and 1991, when the trial occurred.

In this context, it is our submission that the explanation that he gave of his presence on the river bank on the Sunday morning would have featured large in the jury's minds. The explanation was left to them as a lie capable of showing consciousness of guilt. In fact, there was a level of consistency about his explanations over time, which was not put, and that is the second and third matters to which I will come, and I treat them together, if I may, for the purposes of the argument.

The first point that we would seek to raise concerns the admission, however, of the evidence which established that he had been in the presence of the deceased on the night of her death. The argument is based upon the fact that consent was required from him to obtain the blood sample, which was to be the subject of the DNA testing. That consent was obtained following a statement which, as in the decision in Hawkins, was at best a half truth. In our submission, it is necessary to revisit - the approach was accepted by this Court in Bunning v Cross and applied by the trial judge and the Court of Criminal Appeal - with respect to the exercise of a discretion based upon potential unfairness to the accused, where the privilege against self incrimination is potentially infringed.

Before coming to the approach adopted in Bunning v Cross, may I just refer Your Honours briefly to the way in which the matter was dealt with by the trial judge and the Court of Criminal Appeal. Firstly, at page 209 of the application book in the judgment on the voir dire by the learned trial judge, he asks at the top of page 209:

Should I exclude the evidence because the accused was not told in specific terms what was going to be done with his blood sample?

He then refers to Ireland, its acceptance in Bunning, and noted that, in their joint judgment in Bunning Justices Stephen and Aickin:

closely considered the proper principles to be applied in exercising a discretion to exclude evidence otherwise admissible because of the circumstances in which it came into existence. To the principles emphasised in that joint judgment I have given earnest consideration.

It is clear that His Honour relied upon that matter, and, in the Court of Criminal Appeal, that was also the approach acknowledged and confirmed by that court, as appears from the judgment of the Chief Justice at page 123 of the application book, and His Honour notes, firstly, that the question was raised on the basis at trial:

that the police deceived the accused -

that appears at line 6. The statement made by the police is then set out at line 10, and it is in substance that they sought the blood sample in order:

"to compare with that of the person we believe to be responsible for the murder".

He was not told, as noted by the learned trial judge at page 208, what the precise purpose was. At the top of page 208 the trial judge had noted:

At no time was the accused told specifically that the purpose for the taking of the blood sample was for DNA analysis, nor was he told that the object was to compare the blood with a semen sample.

A semen sample taken from the deceased. And the two matters which are of importance, as we understand it in the reasoning of the Chief Justice, was firstly the finding of Justice Studdert that, at line 18, the police had no intention to deceive; and secondly that His Honour dealt with the matter upon the basis of the discretionary principles advanced in Bunning and Ireland.

If I might just turn to what those principles are, and might I hand up to Your Honours copies of the relevant pages in Bunning v Cross, which were not included in the list of authorities, for which I apologise. I have given to Your Honours firstly the first page at [1978] HCA 22; 141 CLR 54, and the relevant passages appear at pages 74 and subsequently. The three points that we would seek to make in relation to the principle in relation to Bunning v Cross is, firstly, that in dealing with the admissibility of real evidence, the court was not concerned with the question of unfairness to the accused, and that appears particularly in the passage at page 75, half-way down the page, where Their Honours Justices Stephen and Aickin noted:

In many such cases the question of fairness does not play any part. "Fair" or "unfair" is largely meaningless when considering fingerprint evidence obtained by force or a trick.....There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry.

Now, that statement, in our submission, is not an adequate statement of the position where what is required is the consent of the accused and where it is obtained involuntarily, there will be a breech of the privilege against self incrimination.

The second point which may be noted from decision in Bunning - - -

BRENNAN J: You made that statement quite categorically; do you wish to support it by authority?

MR BASTEN: Well, what I was going to put to Your Honour, I was going to develop that point in a slightly different way, but perhaps I can just explain the purpose for which I have referred to that matter now. In Lam Chi-ming v The Queen, (1991) 2 AC 212, the Privy Council decision to which we referred, there is a passage at page 222 which, in our submission, supports that proposition. Lam Chi-ming was concerned with a case in which the confessional material was involuntary, but there was conduct of the accused showing that they knew where the knife that was involved in the murder had been thrown and, as a matter of principle, at page 222 at letter C, after the quotation, Their Lordships say:

But it is surely just as reprehensible to use improper means to force a man to give information that will reveal he has knowledge that will ensure his conviction as it is to force him to make a full confession. In either case a man is being forced into a course of action that will result in his conviction: he is being forced to incriminate himself. The privilege against self-incrimination is deep rooted -

and so on. Now, what we would say in relation to the application of that principle in this area is that, if one is considering the voluntariness of the consent, the question of unfairness would loom large and it is based upon a proposition which, if I might refer to one further authority, which I have not given Your Honours, appears helpfully from the judgment of Your Honour Justice Brennan in Collins v The Queen, 31 ALR. I have given Your Honours pages 313 to 317, but the specific passage to which I wish to draw Your Honour's attention is that which appears at page 314. Your Honour the presiding judge had considered the application of the unfairness principles in Lee's case, and the application of the Judges Rules, and then at about half-ay down page 314, Your Honour noted that:

Unfairness is not so much to be found as a fact as to be judged as a value. The circumstances including the exigencies of the particular investigation must be considered. That is not to say that the fair treatment of a suspect.....varies in inverse proportion to the seriousness of the crime..... but it does mean that the steps which have to be taken properly to investigate serious crime are relevant in determining what is fair in the particular case.

And Your Honour was dealing with confessions, of course, in this case, but we say the principles applicable to confessions should by analogy apply in relation to the obtaining of consent where that is required, and at the bottom of the page Your Honour noted the enigma which may arise where the conflicting factors of the desirability of probative and admissible evidence to be admitted, and the converse that any failure to accord fair treatment to the confessionalist, who has not overborne his will, may be only partly resolved except, as Your Honour noted right at the bottom of the page, in:

cases of deception, trickery and the like -

from which I infer Your Honour was saying that those cases are clear because they do involve unfairness in the sense that it may have been established that the will has been overborne. And, Your Honour noted at the top of page 315, that there was:

a blurring of the distinction between the issues of voluntariness and discretion -

in relation to confessions.

Now, Your Honour, with respect, if that approach is correct, then it is not sufficient, we would say, in this particular area, to simply rely upon the principles of Bunning v Cross, which rely upon the interplay of the public policy issues, and it was the well established, I think now, point that there are two separate discretions: one relating to unfairness and one relating to the Bunning principles, which was referred to by, for example, Justice Deane in Pollard's case. What we say is that the unfairness principles were not properly evaluated in their application to the admission of real evidence in this case - - -

BRENNAN J: But really, to make that proposition good, you have got to pick up section 410 in Hawkin's case and apply it to re Edwards, do you not?

MR BASTEN: By analogy, yes, Your Honour. We say that - - -

BRENNAN J: Section 410 in itself goes beyond the common law, does it not?

MR BASTEN: Section 410 does go beyond the common law. What we say in relation to that is that if one takes the principles underlying section 410, specifically in relation to untrue representations inducing statements, it is firstly consistent that those principles are based upon protection of the privilege against self-incrimination, but where the statement - - -

BRENNAN J: Not as recognised by the common law.

MR BASTEN: Not as recognised by the common law principles in relation to the inadmissibility of involuntary confessions,I concede see that point, Your Honour. That is why I was putting the case really on the basis that it is a matter going to the exercise of the unfairness discretion. I think it would be drawing a long bow to say that principles of section 410 have direct application to the taking of a blood sample, and I do not seek to put it as high as that, but what I do seek to say is that in the light of recognition that "trickery", if I may use that term generically, has been accepted within the section 410 cases as leading to involuntariness in a confession, is a factor which has direct bearing upon how the discretion will be exercised, and the fact that in Hawkins, the court took account of the fact that a partially true statement only, which was made with intention to achieve a certain result, might result in involuntariness, is a factor which would give rise to a reconsideration in this particular area and, in our submission, it is no longer appropriate to simply apply the Bunning and Ireland principles to the determination of this question.

DAWSON J: But that raises the question of why fairness or unfairness is relevant in relation to confessions in particular. It is whether it is fair to admit the confession in evidence; it is not so much whether it was fairly obtained. It is not fair to admit theonfession in evidence if it has been forced or it is involuntary, because the confession is likely to be unreliable, basically. You see, that is not something you can say about real evidence; real evidence really just does raise the question of whether, in terms of public policy, it should be excluded, because it was - I do not mind the use of the word - unfairly obtained. The fairness which you are considering is a different sort of fairness.

MR BASTEN: Might I put two propositions to Your Honour in that regard: firstly, the reliability of the confession or material was of particular relevance in Lee's case, under the Victorian law, and I am not sure that that principle is one of general application which would be applied to - - -

DAWSON J: Well, let me put it this way: the principles relating to confessions are not designed to discourage unacceptable behaviour on behalf of the police, for instance, so much as to ensure that the evidence which goes before the court is evidence which can properly consider. Bunning v Cross is different, and in relation to real evidence the question is whether there was unfairness or trickery of a different kind.

MR BASTEN: Subject to this, Your Honour, that Justices Stephen and Aickin in Bunning accepted, at page 79 at about point 3, in 141 CLR, that cogency of evidence was not a factor favouring admission where there had been deliberate or reckless unlawfulness or trickery, so that, although what Your Honour says about the probative value of real evidence as compared with confessional material, in my submission, that would not ultimately determine the question, if there had been some unfairness undermining the privilege against self-incrimination, which would then make it unfair for that evidence to be given at the trial. I accept what Your Honour puts to me as to the stage at which the unfairness must apply, and it is the trial stage, but one assesses the unfairness, in my submission, at the trial stage, by looking to see what had happened in the course of the police investigation.

DAWSON J: Yes, but you see real evidence is not self-incriminating; it is the evidence which incriminates - it speaks for itself.

MR BASTEN: That is so.

DAWSON J: Now, you could question the method by which the evidence was obtained, but that carries you straight to Bunning v Cross, and whether you should discourage the conduct of those who obtained evidence in a particular way or not, but it is not self-incrimination; that question does not arise.

MR BASTEN: Well, in my submission, there is an argument by analogy; that is all I am putting to Your Honour. That where one has to consent to the provision of real evidence - and one does so as a result of one's will being overborne - then that gives rise to a problem.

Might I briefly move on to the second matter that the accused applicant undoubtedly changed his story in a number of respects, the significance of those changes varied. The matter which was of great significance, however, was that, according to the court, there had been a change in relation to his explanation for the fact that he was found jogging on the river bank on the Sunday morning, and that was dealt with by the Court of Criminal Appeal in the Chief Justice's judgment at page 114, but may I, without taking the Court in any detail to that, note that there was another element to this matter, and that was the one dealt with at page 121 of the judgment at line 8, namely that, in assessing this material, the court had told the jury that the change, namely that he was there:

looking for fishing holes -

was one which he had not referred to in his earlier

statement. Our point is simply this: he had made that reference in his statement at the inquest, as appears at page 161 - - -

BRENNAN J: Was that before the trial court or before the Court of Criminal Appeal?

MR BASTEN: Yes, Your Honour. There are two versions: there was the full evidence at the inquest, which was challenged - - -

BRENNAN J: You can have an extension of five minutes, Mr Basten.

MR BASTEN: Thank you, Your Honours. That was challenged and was not admitted in full. An edited version was then presented to the jury which excluded the material which appeared at page 161 and no doubt at the time that that was put in it was not appreciated the significance that might be placed upon the fact that he had given an earlier explanation that he had been looking for fishing spots on the river. The point we seek to make though, in relation to this, is twofold: it is not merely that the jury had put before them a version which was ultimately misleading on this point, but it was the significance which was placed upon this point, both by the trial judge and, no doubt, the Crown, and the Court of Criminal Appeal.

If the applicant was with the deceased on the night in question, the coincidence of his presence on the river bank the next morning, a matter to which he drew attention himself, focuses the attention of the jury, we would say, on the explanation given for that presence. That, in itself, was no doubt a matter of coincidence which needed explanation, but it was dangerous, in our submission, to suggest that the largely neutral explanation he gave could be seen by the jury to be a deliberate lie. This was the one lie which was not accepted by him.

We say that there may have been a change in emphasis, but there is no doubt that he had referred to the fishing as a reason earlier, the attention of the jury should have been directed to the question of the coincidence, not to the question of the lie, and this in a context where the danger of a Crown case, relying upon deliberate untruths, not merely to cast doubt upon credibility or to provide corroboration, but to demonstrate consciousness of guilt, must have been fully alive to the trial judge and the Court of Criminal Appeal. They both referred to it, and the proposition is well expressed, if I might simply adopt the passage, in Your Honour Justice Brennan's judgment in Edward's case 178 CLR 201, where Your Honour noted that although an admission could be derived from a false denial of guilt - and we would say, in this case, from a false explanation -

the prosecution is hard put to turn the denial into an admission.

In this particular respect, the prosecution effectively, by putting that matter as one of the most important considerations, turned the attention of the trial from the question of the coincidence to the question of the deliberate untruth, which, in our respectful submission, it was not, because there had been the earlier evidence to which the jury was not directed, and that is the second matter which picks up the third question, which I said I would deal with together. Your Honour, those are the submissions we would make in relation to the two matters giving rise to matters of general importance.

BRENNAN J: In your notes of argument you had some further reference to the adequacy of the direction given to the jury about lies. Is that picked up, as it were?

MR BASTEN: Yes, I hope I have picked that up in what I have just said to Your Honour in relation to that not being of the same - the lies were, we would say, of different natures and the variation in the way they could be applied has particular significance in relation to the adverse influence, which was suggested as available from the first lie.

BRENNAN J: Yes, thank you. We need not trouble you, Mr Cowdery.

Three points are advanced by the applicant in seeking special leave to appeal in a case where he was convicted of the murder of a girl who had been stabbed and drowned in the Murrumbidgee River at Wagga Wagga. The applicant had been the first to draw attention to the body and the explanation he had given was that he had been jogging on the river bank when he happened upon the scene. He was connected with the crime by DNA matching of a sample of his blood that he had provided.

The first point is that the DNA evidence should have been excluded because the provision of the blood was induced by an untrue representation. The proposition that in the circumstances the evidence should have been rejected on the ground of unfairness by analogy with considerations affecting the admissibility of confessions raises no issue which requires a grant of special leave in the circumstances of this case.

The second point relates to criticism of a statement made by the applicant that he had been looking for fishing holes. It was said that the suggestion that this was a recent invention was inconsistent with evidence he had given at an inquest. The relevant part of the inquest evidence had not been tendered at the trial and no attempt was made to have it included. The evidence on this point was offered as an explanation, alternative to the jogging explanation, of the applicant's presence on the river bank on the morning after the murder. Having regard to the strength of the Crown case and the way in which the applicant's versions of events emerged at the trial, this point does not enjoy sufficient prospects of success to justify a grant of special leave.

The third point relates to the adequacy of a direction given to the jury about the evidence tending to show that the applicant lied about his jogging on the river bank and the use to which evidence of lies might be put. This point turns on the particular facts of the case. The law has been expounded recently in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. In these circumstances, this is not an appropriate case for the grant of special leave and special leave is accordingly refused.

AT 12.32 PM THE MATTER WAS ADJOURNED SINE DIE