Pavia v The Queen S36/1995 [1995] HCATrans 264 (18 August 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S36 of 1995

B e t w e e n -

GUISEPPE PAVIA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 10.52 AM

Copyright in the High Court of Australia

MR M.A. GREEN, QC: May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant. (instructed by De Luca-Leonard)

MR N.R. COWDERY, QC: May it please the Court, I appear with my learned friend, MS M.F. LATHAM, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales ))

DAWSON J: Mr Green.

MR GREEN: Your Honours, this application arises from so-called expert evidence adduced to a jury at the applicant's trial in which he was convicted of the manslaughter of his friend. The application centres on what we submit, of course, is the illegitimate admissibility of this expert evidence over the objection of his counsel at trial - - -

DAWSON J: Which particular evidence are you referring to?

MR GREEN: The palm print on the murder weapon, your Honour. It was common ground that the deceased was killed using a bar weight, a round weight from a barbell, gym equipment that he had on the premises and which had been used by both him and the applicant. On that bar weight, there was the palm print - and there was no dispute about this, of course - of the applicant and there was blood.

DAWSON J: There is no dispute about the admissibility of the actual evidence of the palm print itself, was there?

MR GREEN: No, there was not, no. But it did not end there, your Honours.

TOOHEY J: No, but could I just ask you this, Mr Green: is the proposition that there was no appropriate field of expertise involved or that there was such a field but the witness was not qualified to speak as an expert?

MR GREEN: There was no evidence that there was a field of expertise. There may well be out there somewhere, your Honours - - -

TOOHEY J: In answering that question, can you be more specific as to what you say is the area in which no expertise was called for?

MR GREEN: There was no evidence that there was a field of expertise and there was no evidence that the so-called experts who gave evidence were equipped so to do.

DAWSON J: Let us get that quite straight. There would be no question that fingerprinting was a field of expertise, it has been - - -

MR GREEN: No question about that, at all.

DAWSON J: And what happened was that two police - was it two?

MR GREEN: Yes.

DAWSON J: Police experts were called and they gave evidence in relation to the palm print. They also gave evidence of some tests which they conducted.

MR GREEN: Indeed.

DAWSON J: Now, the evidence as to the palm print as opposed to the tests could not be objected to, could it?

MR GREEN: No. That is, in our submission, a fundamental misconception that the Court of Criminal Appeal made in the judgment and I would take your Honours to that part of the judgment that is reproduced on page 210 of the appeal book and, with respect, the director in his submission, in our submission, makes the same mistake, that the judgment says:

It must be noted, however, that the Crown had a strong and credible case based on expert evidence independent of the tests carried out, that the appellant's bloodied hand caused the subject palm print.

Using hindsight, of course, that was true. As your Honour Justice Dawson has said, police experts said something which was undoubtedly within their expertise that this appeared to them to be a bloodied palm print. But that was not the end of it. The trial went on to throw that into dispute because the defence expert had said, "You police experts have got it wrong".

DAWSON J: That often happens in cases where expert evidence is called that they disagree.

MR GREEN: Yes, but within the parameters, your Honour, of fingerprint evidence. This was not simply fingerprint evidence.

TOOHEY J: The question was whether the blood was superimposed on the fingerprint or the fingerprint superimposed on the blood.

MR GREEN: Indeed, and that took it out of the area of expertise of fingerprint. We got then into some other area which dealt with - which they purported to deal by these pseudo-scientific experiments - - -

DAWSON J: They conducted tests, that is the police witnesses and you say they were amateurish and did not conclude the question and no doubt you attacked the tests and said this did not establish that their expert opinion, which they otherwise expressed, was correct and you were entitled to do that. You also called evidence to that effect.

MR GREEN: Yes. But, the point that we are seeking to make, your Honour, is that it is not a fair reading of the trial transcript to divide the evidence in that way, that there was independent expert evidence within their expertise and then there were the tests, and the jury could ignore those. It did not emerge that way at all - - -

DAWSON J: Why not? It must be a frequent occurrence that an expert witness gives evidence and the other side attacks the means by which he comes to his expert opinion.

MR GREEN: But in this case, we had a situation where, over three days, this so-called expert evidence regarding the tests subsumed and took on the character of the entire palm print evidence, and that is the difference.

DAWSON J: Perhaps it did, but what do you draw from that?

MR GREEN: What we draw from that is then, of course, we get into the field where there was no expertise; there was no area of expertise there at all and they were not qualified to do those tests. The evidence, therefore, should not have been allowed.

TOOHEY J: I still have difficulty in identifying the point. Is it that there is no expertise involved in determining whether a fingerprint has been superimposed on blood or blood superimposed on fingerprint, or that in the circumstances of this case, the Crown witnesses were not qualified to speak as to that matter?

MR GREEN: We say yes to both questions, your Honour, that there was no evidence at all that this had been dealt with in any of the literature, in any of the scientific fields, appropriate fields. We also say well, it follows as night and day, of course, that the police experts were not qualified to do so and the very nature of their - and they admitted they were not; they admitted they were tests, they were experiments.

TOOHEY J: That is taking us into the second question. That is why I put it to you in the way that I did. I just have difficulty in the first proposition that there was no expertise involved, or no recognised area of expertise in speaking as to that first question.

MR GREEN: There is not and our point is that it was not simply a question of the recognition of fingerprints. This was fingerprints plus blood and, therefore, they delved into the area of the behaviour of blood in certain circumstances under certain conditions. I know I am jumping ahead here a little but, as Dr Kobus, the expert that was sought to be called on the fresh evidence point in the Court of Criminal Appeal indicated, the tests had no scientific validity. Nor did he - - -

TOOHEY J: That may be, but that is the second question, is it not?

MR GREEN: Yes.

TOOHEY J: That is an attack on the tests themselves. I am still having difficulty with a proposition that says there is no expertise involved when you call, as I understand it, the defence calls a witness to speak as an expert on that very matter.

MR GREEN: Of course, our logical submission must be that there was no proper expertise in the defence expert either, and I submitted that in the Court of Criminal Appeal. There was no evidence of a recognised field of expertise or body of knowledge which attached to this type of identification which went further than simple fingerprinting. Therefore, none of the experts, Crown or defence, were entitled to come to any firm conclusions about the matter and, indeed, to support what - our submission is, your Honours, that it was not simply as it emerged in the trial, nor was it put to the jury by the trial judge that it was a matter of identification of fingerprints. Could I take your Honours briefly to some parts of his Honour's summing up to the jury, page 18 of the appeal book, where his Honour says to the jury:

There is no issue that the print is the accused's palm print. All the experts agree in this regard. If you were to rely solely on the evidence that the print was placed there in blood as establishing the guilt of the accused, then you must be satisfied beyond reasonable doubt of that fact.

This would require you to accept the evidence called by the Crown from the four police fingerprint experts and to reject the evidence of Mr Nesbitt on this question because their views conflict and I will later take you to some of that evidence.

On page 99, his Honour refers to the fingerprint evidence being the heart of the Crown case. On page 115, his Honour talks again about the competing palm print evidence being a matter for the jury to decide and on page 128 of the appeal book, his Honour says:

The Crown relies upon the palm print evidence as being powerful evidence which, if accepted by you in the manner put forward by the police experts, would, standing alone, satisfy you beyond reasonable doubt of the guilt of the accused -

et cetera. So, this so-called expert evidence, your Honours, took on a life of its own over some three days and I come back to our original submission that it was not simply fingerprint evidence. Nor was it - this needs to be laid to rest, your Honours - simply a question of tests done by competent people as we get in criminal trials, police officers judging distance or speed or bodies rolling over the floor and actions of flammability of materials. It was not that at all. It was presented to the jury as expert evidence.

DAWSON J: You contested it was, in fact, expert evidence. You contest its reliability. That is what you frequently do with experts.

MR GREEN: Yes, but it was not a fair contest because here, the contest was between two sets of experiments which had no scientific validity.

DAWSON J: Well, that was your criticism of them.

MR GREEN: And it still is.

DAWSON J: Maybe the jury could have accepted that, but maybe they did not.

MR GREEN: In our submission this assumed - a fair reading of the transcript of the trial, your Honour, on what I base my submission is this evidence really took on a substantial weight and the jury should not have been allowed to be placed, in our submission, in this particular position.

DAWSON J: Why not? It is for the jury to decide what weight they give to expert evidence.

MR GREEN: But this went further; it infringed on the principles. For instance, the very basic principle laid down in cases such as Clark v Ryan because there was no area of expertise here.

DAWSON J: But there was. They were able to give evidence in the first instance as to the identity of the palm print and to express an opinion about it. They did. They then sought to back up the opinion by giving evidence of tests which you say were amateurish and did not conclude anything. Well, maybe that is so. No doubt you pointed that out to the jury and you called evidence to that effect. What is wrong with that?

MR GREEN: What is wrong with it, as I have already suggested and submitted, your Honour, our submission is that the test evidence became the central theme of the fingerprint evidence and the rest of it fell away to nothing.

DAWSON J: It did, because the palm print was the central point of the Crown's case and you sought to contest it and it would become something of importance in the trial, because you had to destroy it and you sought to do so by destroying the validity of the tests.

MR GREEN: Something was raised which should never have had to be destroyed and, of course, the jury were not in the picture. The Crown experts did these tests in answer to the defence expert who raised a problem in their reading of the original palm print. In other words, the police initial view that this was a bloodied palm print was challenged before the trial - before this trial, that is - by a defence expert who said, "You've got it wrong; you've read this wrongly". There is such a thing as he called tonal reversal in the photograph. Therefore, of course, that motivated the police experts to do these tests but the jury did not know that.

TOOHEY J: That all goes to weight, does it not? I do not want to be repetitive but, in effect, you are inviting this Court to rule, if special leave were granted, that there is no field of expertise which would permit witnesses to testify as to the relationship between blood and fingerprints in terms of which was placed first.

MR GREEN: Yes, but more specifically - - -

TOOHEY J: Before you get to your next question about the weight to be attached to the evidence of the experts, but is that not what you are inviting us to do?

MR GREEN: Yes, at the time, in the context of this trial, there was no evidence that there was a field of - there might be some. Some scientist might be out there, your Honour, who has developed this but there was no evidence of it at the trial. So, we say yes, there was no field of expertise and this threw up a whole mountain that placed the defence in the situation, as your Honour Justice Dawson said, it had to destroy it. Now, that was unfair and, indeed, I rely on the authorities in Bonython, for instance, the prejudicial problems presented to an accused in this type of situation, or particularly the English cash of Robb where the English Court of Appeal talked about the unfairness where this particular material is allowed to be produced and there can be a shifting of the burden of proof.

That is what, in our submission, happened here. There, quite apart from the general problems of prejudice to an accused in this situation with this type of evidence presented to it, as have been elucidated by the New South Wales Supreme Court by Justice McInerney in Tran for instance.

TOOHEY J: But the trial judge was aware of that and he said, as appears at page 2, that there is no doubt that the evidence has prejudicial potential. He decided, nevertheless, to admit it.

MR GREEN: Yes, but also in the judgment, your Honour, after the voir dire in relation to this matter, his Honour said, at page 2 of the transcript of the judgment in relation to the admission of the material, the judgment dated 16 September 1993, he says in the final paragraph:

It seems to me clear beyond question that the present issue is one which is a question of fact for the determination of the jury and there is to my mind no novelty in conflict of evidence about fingerprints.

Well, if it was simply a conflict of evidence about fingerprints, there would be no issue about that and I could not make any submission about it but, as I have already submitted, this was not an issue simply of fingerprint evidence; it went further. So, to summarise our argument in relation to those matters, your Honours, our submission is that because of what happened, and because of the admission of this weighty material which had no scientific validity at all, was amateurish in the extreme, this trial got lost in this maze of pseudo-scientific evidence and, in our submission, the applicant simply did not have a fair trial.

Might I turn your Honours now to the next point: that is the Court of Criminal Appeal's rejection of the fresh evidence and we say that there is involved in that rejection a miscarriage of justice in this sense, that without this evidence and the evidence of the tests and the way the Crown sought to stamp the authenticity of the original reading of the palm print, without that evidence, the Crown case was not a strong one at all. There was some evidence of motive, very light, there was circumstantial evidence; there was some evidence of admissions, confessional material, to two witnesses, one of which was hostile and did not emerge at all as credible - - -

DAWSON J: It simply was not fresh evidence though, was it?

MR GREEN: It could have been discovered at the time, yes, but as your Honours know, of course, that is not an inflexible rule and it was cogent, this particular evidence, and Dr Kobus, while couching his examination of the material in suitably and appropriately careful scientific language, nevertheless came to firm conclusions that had no scientific validity, that the tests were not an appropriate vehicle for the - - -

DAWSON J: If you were to allow that evidence in, you would have to allow evidence to rebut it. It would be a never-ending stream of evidence. That is the very reason that the rule is laid down that evidence has to be fresh. You cannot re-agitate the same question again and again by calling different evidence before a Court of Criminal Appeal.

MR GREEN: Surely, with respect, your Honour, if the evidence is cogent enough, that can be done and I rely on Gallagher and the other cases for that submission.

DAWSON J: No doubt that was put to the Court of Criminal Appeal.

MR GREEN: Yes, it was but, in our submission, of course, the Court of Criminal Appeal summarily dismissed that argument by relying on a vague fear, if we might suggest with respect, in their words, of a miscarriage of justice. There was more than that, in our submission, regarding the validity or the safety of the condition in this particular matter because this evidence was, indeed, cogent. It was powerful and it suggested quite strongly, albeit as I have said in careful language, that the tests had no scientific validity at all and in our submission, the applicant was convicted very largely on that pseudo, or to use the vernacular, shonky scientific evidence. They are my submission in relation to this matter, your Honours.

DAWSON J: Thank you, Mr Green. We need not trouble you, Mr Cowdery.

There is no reason to doubt the correctness of the conclusion reached by the Court of Criminal Appeal that the fingerprint or palm print evidence in question is admissible. Nor do we think that the Court of Criminal Appeal was wrong in rejecting the evidence which was tendered before it. Special leave is, therefore, refused.

AT 11.12 AM THE MATTER WAS CONCLUDED