Hoft v The Queen P27/1993 [1994] HCATrans 97 (26 October 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1993 No C17 of 1993

B e t w e e n -

CLIVE GEOFFREY HOFT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 1994, AT 10.41 AM

Copyright in the High Court of Australia

MR L.W. ROBERTS-SMITH, QC: May it please the Court, with MR M.T. RITTER, I appear for the applicant in this matter. (instructed by Dwyer Durack)

MR A.N. HOPE: May it please Your Honours, I appear with MR P.D. YOVICH for the respondent. (instructed by the Director of Public Prosecutions (Western Australia))

TOOHEY J: Yes, Mr Roberts-Smith.

MR ROBERTS-SMITH: Your Honours, the points of law of general application raised by the proposed appeal and by reason of which, in our submission, special leave should be granted are referred to at paragraph 20 and following of Mr Ritter's affidavit, which is at pages 68 to 70 of the application book, and paragraphs 1, 2, 3 and 4 of the outline of submissions, which has been filed with the Court.

May I say at the outset that the reasons given by the majority of this Court in Liberato and Others v The Queen, [1985] HCA 66; (1985) 159 CLR 507, for refusing special leave there do not apply in this case. I will come to the specifics in just a moment if I may, but as a general proposition, it is our submission that in stark contrast to the position in Liberato here the applicant does contend that the Court of Criminal Appeal itself fell into errors of law in its consideration of the summing up of the trial judge and we further contend that the Court of Criminal Appeal misconceived the principles governing the application of the proviso.

The majority in the Court of Criminal Appeal accepted the trial judge's direction that the exculpatory explanation given by the applicant to the police when confronted by them was not evidence was wrong in law. I refer to page 66 of the application book. That misdirection, in our submission, was given added force by the trial judge's direction that, and I quote from page 4 of the book:

it is only what you hear said from the witness-box under oath or affirmation as something on which you can base your findings.

His Honour Mr Justice Rowland went on to say at line 25 on page 25 of the book, and again I quote:

If that was all, I would have no hesitation in allowing the appeal because the jury would have been deprived of evidence which tended to exculpate the accused. The proviso to s 689(1) of the Criminal Code could not apply in those circumstances.

And it is our submission that His Honour's use of the word "evidence" there is indeed critical, both to this application as it was to the appeal itself. Notwithstanding that recognised error, which was recognised by all judges in the Court below, the majority concluded that there was no miscarriage of justice because the applicant's explanation was, in fact, left to be considered by the jury.

TOOHEY J: When you say "left to be considered", the trial judge invited the jury to consider the explanation, did he not?

MR ROBERTS-SMITH: Yes, His Honour did, but on a particular basis. That is, it was left to them to consider:

"merely as an indication of the possibilities consistent with innocence that the Crown (was) obliged to exclude..."

and that is a reference from page 66 of the report.

GAUDRON J: But the evidence did, in fact, go in, did it not?

MR ROBERTS-SMITH: The evidence went in because, of course, the Crown was seeking to rely upon the balance of the conversation, effectively, as constituting admissions and, of course, those portions of it.

GAUDRON J: It went in only as an explanation offered at the time.

MR ROBERTS-SMITH: Yes. But not as the truth of what the applicant said and not as evidence of the truth of what he said.

GAUDRON J: Given that the jury only had to be satisfied that it was a reasonable possibility for your client to obtain an acquittal and that they were instructed, it is hard to see what difference it makes in the circumstances of this case.

MR ROBERTS-SMITH: In our respectful submission, the way in which it was left, Your Honour, it could well have made a considerable difference, because it was left on the basis not that it was evidence, not that it was evidence at all, but that it was merely a possibility that the Crown had to exclude. It is important here to consider, in fact, in this context what His Honour the trial judge actually said.

GAUDRON J: Not merely a possibility that the Crown had to exclude, but a possibility which if the Crown did not exclude it must result in an acquittal.

MR ROBERTS-SMITH: If the Crown did not exclude it by evidence acceptable to the jury, but against which, of course, the jury had to consider the rest of the evidence to determine whether or not the evidence left them with a reasonable doubt. That is important because here what the applicant said to the police officers was not evidence. His Honour repeated that time and again. May I hand this summary, perhaps, to Your Honours, which is a brief reference to those portions in the application book where His Honour made reference to this.

Can I quickly take Your Honours to some of them. For example, at page 4, between lines 10 and 15, in the middle of the paragraph His Honour says:

but he has not denied that in evidence, and self-serving statements made to the police outside court are not evidence.

And then in the next paragraph His Honour goes on:

I shall explain to you later why it is that it is only what you hear said from the witness-box under oath or affirmation as something on which you can base your findings.

And then again at page 8 in the second paragraph when His Honour refers to:

a person found in possession of all the ingredients or a lot of important ingredients in the - or the residue from a heroin making process who gives no satisfactory explanation as to the possession could be found to have been so involved as to be guilty of the manufacture -

But then importantly, in the following paragraph:

The only explanation given by the accused is given to the police. It hasn't been given to you in evidence from the witness box, but that is no reason why you shouldn't look at the explanations given to the police -

And His Honour then later goes on to qualify that. Then again, page 11, just below line 15:

Evidence is what you hear on oath or affirmation from the witness box. What is said outside the court is not evidence because it's not on oath. It's not subject to cross-examination by the opposing party. It is not tested.

Then again, page 12, top of the page, line 5:

All you have is what he said to the police and that is not evidence. It is merely an indication of the possibilities consistent with innocence that the Crown is obliged to exclude by evidence acceptable to you.

Page 13, line 10:

You must have regard only to the evidence -

All of this, of course, in the context of His Honour saying "what he said outside court is not evidence". Then again, in relation to that, although not part of His Honour's directions to the jury, His Honour makes it quite clear when the issue was raised by counsel, what he intended to convey to the jury, the view he was expressing to them by all of this. At line 25 on page 15 he says:

They are not evidence of the truth of self-serving statements.

And over the next page:

They are simply evidence of what he said at the time.

If one looks at all of that together, the effect of what His Honour was saying virtually in terms to the jury was that they had to consider the possibility, or the hypothesis as a possibility to be excluded by the prosecution; secondly, that the jury could act only on the evidence; and thirdly, that there was no evidence of the truth of the explanation he gave to the police.

In our respectful submission, what that does is preclude the jury from considering what he said to the police as evidence, as opposed to a mere possibility and that must be, in our respectful submission, a fundamental denial of the applicant's right to be tried by the jury on the evidence, including, of course, those exculpatory statements.

TOOHEY J: Mr Roberts-Smith, some redirection was sought at the end of the judge's direction to the jury.

MR ROBERTS-SMITH: Yes.

TOOHEY J: To what extent was His Honour asked to redirect on matters pertaining to the point you are now dealing with?

MR ROBERTS-SMITH: I think I have really just taken Your Honour to that particular reference at page 15. That was an exchange between His Honour and counsel and His Honour then did not bring the jury back, did not accede to that request but illustrated there quite clearly, at page 15 and going over to page 16, what he meant to convey by those directions that he had already given: that it is not evidence of the truth of what the applicant said. That is fundamentally wrong. The Court of Criminal Appeal accepted that that was wrong, but none the less came to the conclusion that there was no substantial miscarriage of justice because the jury had been invited to take account of the explanation as an hypothesis, but what His Honour's directions did was totally devalue the qualaity of that as evidence. That, in our submission, must be fundamentally wrong and exclude the application of the proviso.

The Crown contends in its outline at paragraph 5 that the distinction between evidence of a fact and the recognition of it merely as a factual possibility is specious and, of course, we submit absolutely to the contrary that the distinction is entirely fundamental because the jury were precluded from dealing with the applicant's explanation on its merit in a context in which His Honour repeatedly said you can act only on the evidence.

The next special leave point has to do with the onus of proof and in our submission it is raised in two ways, the first is referred to at paragraph 19C of Mr Ritter's affidavit at page 67. We submit that this was not a case in which the prosecution evidence, excluding that of the applicant's answers to the police, was sufficient to establish the offence. The conclusion of the majority, Justice Rowland at page 27 and Mr Justice White at page 58, that in the absence of a reasonable and credible explanation the jury was entitled to infer that the applicant had been involved in the manufacture of heroin was in error. His Honour Mr Justice Franklyn recognised that, and as he pointed out at lines 15 to 18 at page 33, it simply did not follow that if the jury found the explanation implausible, then the applicant must have been involved in the manufacture of heroin, and indeed - - -

GAUDRON J: Why not? Is it not a case analogous to recent possession of stolen goods?

MR ROBERTS-SMITH: No. That indeed was an error, we submit, that the majority fell into. The true analogy there, of course, would be if a person was found in recent possession of property known to have been stolen, and that possession was unexplained, then, of course, he or she may be convicted of being unlawfully in possession.

But the true analogy would be* if on that evidence that person could properly be convicted of stealing the property, because that is the true analogy with the situation here of manufacturing heroin. What was in issue here was not whether or not he knew heroin had been made. That really was not in dispute. The question was whether he was involved in the manufacture of it and that is the distinction between this position and that of recent possession in terms of property. Of course, he did give an explanation, and we have already dealt with that in our earlier submission.

GAUDRON J: But this is a matter in the Court of Criminal Appeal, really, only, is it not? It does not arise the way the trial was conducted. It is a question of the use the Court of Criminal Appeal made of this in determining whether or not the proviso should apply?

MR ROBERTS-SMITH: Yes. It arises both ways, of course. We say - - -

GAUDRON J: But it did not arise at the trial, though, did it?

MR ROBERTS-SMITH: The question of recent possession?

GAUDRON J: There were no directions given.

MR ROBERTS-SMITH: Yes, there were.

GAUDRON J: That reversed the onus in the way you now complain?

MR ROBERTS-SMITH: Indeed, what we say is that the jury - and we say this was recognised by Their Honours on the Court of Criminal Appeal - the jury, indeed, seems to have arrived at their verdict by reversing the onus of proof. His Honour Mr Justice Franklyn made that conclusion. Can I just quickly take Your Honours to each of them. It is our submission, to preface this, that to determine guilt on the basis of whether or not the jury might accept the explanation is erroneous, and that is the reversal of the onus of proof. Not only was that what it seemed the jury had done - - -

GAUDRON J: But that is not how it was left.

MR ROBERTS-SMITH: His Honour Mr Justice Franklyn observed at page 35, line 5, actually beginning at the top of the page:

To determine guilt on the basis of whether or not the jury might accept the explanation is in error. It is a reversal of the onus of proof. This however would seem to be what the jury has done.

And we submit, with respect, His Honour was right there.

It is so seen by White J -

His Honour observed, and His Honour then went on to state the correct test. It was a matter for the jury to be satisfied beyond a reasonable doubt.

GAUDRON J: It is not how I would have read the summing up, I must say. The summing up seems to have been left on the basis that the jury must exclude the explanation as a reasonable possibility.

MR ROBERTS-SMITH: Yes, but on the basis that there was no evidence of the truth of it.

TOOHEY J: Well, that there was an explanation to which they could have regard and should have regard in determining whether or not the possibility of innocence had been excluded.

MR ROBERTS-SMITH: But, with respect, it is one thing to say, look, there is a hypothetical possibility unsupported by evidence that the prosecution has to exclude. It is an entirely different thing for a trial judge to say to a jury, "There is some evidence of this. What weight you give it is a matter for you." But what he said is, "Evidence of the truth of it should you accept it to be such and should you give it such weight as you deem fit." It is a totally different proposition and in our respectful submission it cannot be said that if the jury had been properly directed in that respect, they would necessarily have made the same assessment of the strength of the prosecution case as in the end they did.

But, in any event, so far as this Court is concerned, with respect, the fact that the Court of Criminal Appeal got it wrong, in our submission, is of course a critical feature. The fact that His Honour Mr Justice Franklyn was of the view that the jury indeed took that incorrect approach, and His Honour thought that Mr Justice White was of the same view, in our submission lends support to that proposition.

I just refer Your Honours in passing to Justice White at page 43, line 25, and His Honour Mr Justice Rowland, page 27, line 12 and following.

So it has to be, in our submission, fundamentally wrong in principle for a Court of Criminal Appeal to apply the proviso in circumstances in which it is acknowledged that there has been a reversal of the onus of proof. I make the point again that not only in that situation has the applicant not been given a proper trial according to law, in these circumstances, it could not be said that the jury's assessment of the strength of the evidence tending to show guilt would not have been different if proper directions not been given.

Can I just, as I have noticed the light has gone on, hand up to Your Honours a transcript of Mr Campbell's evidence with a short note - - -

TOOHEY J: It is not the KO light, Mr Roberts-Smith, that comes a little later.

MR ROBERTS-SMITH: I want to get to the end, if I can. Can I just hand up a series, first of all, of the transcript of Mr Campbell, with a short summary of the relevant portions of that which goes to our final submission, and the extract from the relevant page of the record of interview with the accused where there was a diagram drawn.

Apropos of that, if Your Honours please, the last special leave, in our submission, is a general one. The principles applicable to special leave applications do not preclude a grant of special leave where not to grant such leave would admittedly perpetuate a substantial miscarriage of justice and allow a wrong decision of the court below to stand, as we submit is the position here, irrespective of the view Your Honours may take as to our earlier submissions. There was a substantial miscarriage of justice, and we say that for the reasons given at paragraph 7, subparagraphs (a) to (c) of the applicant's outline of argument, to which we would add a further error: namely, failing to find that the direction given by the learned trial judge, page 5, lines 10 to 15, that the jury had to be satisfied that the admissions made by the applicant, and specifically that heroin had been produced:

he knew to be true because of his experience of drugs and/or involvement in the manufacture or attempted manufacture of heroin.

That involved, in our submission, purely a circular process of reasoning and required the jury to assume a fact which was itself an element of the charge. This error, in our submission, is reflected in the applicant's draft notice of appeal as ground 4 at pages 72 and 73 of the book.

There was no evidence, we submit, that the applicant was a user of heroin on other occasions, there was no evidence that he had any knowledge or experience other than that involved in the circumstances of the charge before the Court, and even as to that that he had any knowledge or experience other than what he may have observed or been told by others, as again His Honour Mr Justice Franklyn pointed out. In relation to this ground, and by way of illustration only, and I am coming now to the material just handed to Your Honours, the reasoning of the majority, in our submission, was further contaminated by misunderstandings of the evidence about the accuracy of the applicant's answer as to the quantity of heroin which could be produced. Can I very quickly take Your Honours to page 26, Mr Justice Rowland - - -

TOOHEY J: You are running out of time, Mr Rowland-Smith. Can you just tell us the page that you want us to look at?

MR ROBERTS-SMITH: Yes, page 26, line 23. Mr Justice White, pages 58 and 59, that is at the bottom of page 58, going over to 59. His Honour Mr Justice Franklyn at pages 32 and going over to 33. If Your Honours please, those are our submissions.

TOOHEY J: Thank you, Mr Roberts-Smith. The Court need not trouble you, Mr Hope.

In all the circumstances of this case, having regard to the way in which the trial judge directed the jury concerning the truth or otherwise of the applicant's explanation to the police and the need for the Crown to exclude the possibility of innocence, the Court is not persuaded that there was any miscarriage of justice. The application for special leave to appeal is therefore refused.

AT 11.04 AM THE MATTER WAS ADJOURNED SINE DIE