Parker v The Queen P6/1997 [1997] HCATrans 378 (14 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P6 of 1997

B e t w e e n -

DAVID CHARLES PARKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 9.03 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC: May it please the Court, in this matter I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by Dwyer Durack)

MR J. MACTAGGART: May it please your Honours, I represent the respondent upon this application. (instructed by the Director of Public Prosecutions (Western Australia))

BRENNAN CJ: Mr James.

MR JAMES: There is a very short preliminary matter, your Honours. We would seek an extension of time from 20 December through till 17 January 1997.

BRENNAN CJ: What do you say about it, Mr Mactaggart.

MR MACTAGGART: Your Honours, the respondent does not wish to be heard on that application, may it please your Honours.

BRENNAN CJ: Time will be extended, Mr James.

MR JAMES: May it please the Court. The grounds of the application are set out in the application book at 177 to 178. This was a trial by judge alone in respect of the guilt of the applicant on various charges of false swearing before a royal commission. The whole of the case against the applicant was a circumstantial case on each count. The approach that the trial judge and the Court of Criminal Appeal took in each case was to enunciate what this Court had said in the circumstantial evidence cases of, in particular, Chamberlain and Shepherd, and then to examine the hypothesis that the statements were true, in the light of various findings of matters which individually rendered that hypothesis improbable and accumulated those improbabilities to the point where the trial judge and, in due course, the Court of Criminal Appeal were satisfied that the count was made out, that is that it was not rational to suppose that the statements in question were true.

In each case, that is at first instance and on appeal, we do not quarrel with the proposition that the applicable law was accurately stated in those extracts from the case law that appear in the application book. Further, it was incumbent on the trial judge, by reason of section 651 of the Criminal Code of Western Australia, since it was a trial by judge alone in this case, just as it was in Cutter v The Queen, another matter which has recently come before this Court, to expose his findings and reasons.

But what we do say is that what happened was that there was a misapprehension of what the Court meant, in particular in Shepherd, as to the cumulation of probabilities such as to be sufficient to prove a matter beyond reasonable doubt. What we submit here, and what we have submitted before the Court of Criminal Appeal, was that each of the matters which might tend to support the truth of the statements assigned as lies was dealt with in isolation, and dealt with against findings of matters which were thought to be or to render such a circumstance improbable.

BRENNAN CJ: What makes this a special leave point?

MR JAMES: Because, your Honour, on the other side, the question of looking at what was the doubt was not looked at in that way.

BRENNAN CJ: What makes that a special leave point?

MR JAMES: Because, your Honour, Shepherd is what seems widely to be understood as allowing the Crown to cumulate probabilities, disregarding the fact they may be also cumulating improbabilities. Shepherd seems to involve, in the way in which it has been applied here and in the way it is often applied, what almost amounts to a reversal of onus, that is to say, let us see what the accused has to support the hypothesis and whether that can be struck down. If that is struck down, the hypothesis remains. Now, that is a misunderstanding of Shepherd and, in our submission, Shepherd requires clarification to that extent so that what happens in a circumstantial evidence case is not the postulation that when it involves proof of a negative, the accused in a false swearing case is lying, let us see what makes it improbable that he was telling the truth - - -

BRENNAN CJ: But how do you make this work? Take the question of whether or not Ms Arcus gave him $10,000. Now, we know that he had $10,000, but that is not the allegation. The allegation is that he did not speak the truth when he said that she gave him $10,000.

MR JAMES: Firstly, he relies on his own testimony. That is tendered in evidence. In our submission, it is in for his advantage and for theirs. It does not matter if it is the lie assigned, because it has to be proved to be false beyond reasonable doubt, but if it is the surrounding material, as it was here, he is entitled to the benefit of it. But once it is in, the next thing is if he is able to point to matters, either open on the evidence or supported by the evidence, which show an opportunity, a capacity and a motive of Ms Arcus to have given him the money, it is not right, in our submission, for the Crown to deal with those three matters, at the primary level or at the intermediate level, by saying, well, I think that one is improbable, and that one is improbable, and that one is improbable, taken each alone, and therefore we can say that we can look to what we have by way of her financial circumstances, her profile, and say it is highly unlikely that she would have done that. Thus we can be satisfied that the hypothesis that she did do it was not a rational or reasonable hypothesis and thus we get to guilt.

Now, it is our submission that that is the course that was followed in relation to each one of the counts by way of the mode of reasoning. If that is so, it involves a concealed misunderstanding of Shepherd and a concealed misapplication of the onus because of the view that one can accumulate probabilities without looking at them, at the end of the day, as an assessment of whether they do in fact prove the conclusion, without looking at the fact that one might also be cumulating improbabilities so as to leave the question of intent to kill, in the Cutter sense, still open on the evidence.

BRENNAN CJ: It sounds very much to me, Mr James, as though you are trying to force the ordinary processes of fact finding into intellectual boxes so that you can mount a legal argument.

MR JAMES: No, your Honour. Indeed, I go so far as to say that what has happened is the ordinary processes of fact finding have been forced into a sort of Shepherd box in which people say, "Well, there is this hypothesis, that he is telling the truth; there is that hypothesis, that he is not. They are competing hypotheses. We can cumulate, according to Shepherd, to see if guilt is on, but we do not look at anything else." The really practical way in which people would and should reason is to say, "Let's see what the Crown has proved; let's see what its total effect is and let's see what there is against that."

Now, in this case, we say that what has happened - and when one reads the judgments of the trial judge and the Full Court it is redolent with expressions of unlikelihoods and improbabilities. Take Ms Jones' evidence as one example. Her evidence was not rejected because of any intrinsic incredibility exposed by her in the witness box. Her evidence was rejected in contrast with an implausibility of the account with reference to other implausibilities, the financial profile. Now, that evidence does not have to prove anything and, indeed, the Full Court seemed to suggest, putting it at its best, in the passage in which Mancini is cited appearing at pages 89 to 90 and dealing with Bushell, that for an hypothesis to compete with the hypothesis of guilt it has to be supported by some evidence and that the Bushell test, that is that it is not reasonable "if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" is only really satisfied if the proposition is in some sense intrinsically probable or, alternatively, supported by the evidence.

Now, that is in effect to cast an onus on the accused in a criminal case, not to deal with a proposition open on the evidence but to succeed in having evidence in the Crown case that supports it or to produce evidence to support it.

TOOHEY J: Mr James, when the application complains that "The Court of Criminal Appeal erred in holding that the convictions were not unsafe and unsatisfactory" and then goes on to raise the question of circumstantial evidence, is that an independent ground or is it tied in with your argument about circumstantial evidence?

MR JAMES: We only have two grounds, your Honour, one, that it was unsafe and, secondly, that the court erred in setting the test for what was a reasonable doubt.

TOOHEY J: But my question really then is, was it unsafe, on your submission, because the court applied the wrong test, not for other reasons?

MR JAMES: That is right, because of an error of law, and the error of law is an error of law that is exposed by the application to the evidence of what is said to be, and expressed to be, the doctrines in Shepherd and Chamberlain but, on analysis, that is not what the court does at all.

HAYNE J: Was that error of law identified and argued in the Court of Criminal Appeal?

MR JAMES: It was, your Honour. Indeed, by way of example as to the accumulation of improbabilities, if your Honours will allow me one moment, that precise phraseology was used by me and adopted in the Court of Criminal Appeal concerning that as a basis of error and going to the point where we submitted that there was an effective reversal of onus.

HAYNE J: It is simply that I could not identify it readily from the notice of appeal to the Court of Criminal Appeal.

MR JAMES: Yes.

HAYNE J: There was a general allegation of unsafe, unsatisfactory, rather than a particular assignment of particular legal error of the kind which you now seek to agitate in this Court.

MR JAMES: If your Honours turn to page 99 of the application book, last paragraph, and then at page 90, last 10 lines; at page 84 in the lines following the quote from Chamberlain. As to the reversal of onus, page 79 referring to ground 4 at about point 8 on the page.

Your Honours, this Court in Cutter looked at a less complex, almost direct inference, aspect of the same problem. The Court reached a view, by a majority, that the circumstances in the present case cannot, in our respectful opinion, exclude the possibility. That appears in the judgment of the Chief Justice and Justice Dawson in Cutter (1997) 143 ALR 498. The Court went on to say:

For that reason, though the question is essentially one of fact -

that appears at 503, at 25 to 28. With respect, nonetheless, it appears to us that where the test for working out what is a rational hypothesis or reasonable hypothesis inconsistent with guilt, alternatively what is a sufficiency of evidence to prove guilt, is being examined, one is looking at a question of law and if one looks at it in the context of unsafe and unsatisfactory, as I apprehend from what your Honour Justice Toohey has put to me, the question is whether the jury should have reached that verdict or, in this case, the tribunal of fact, applying the law as to what is the appropriate standard.

This is somewhat novel because it is only in this context of cases where there are trials by judge alone, and they are becoming much more frequent in Western Australia and in New South Wales and elsewhere, that one can see how high the legal bar is set. That bar is set, in circumstantial evidence cases, by Shepherd and Chamberlain. It is only with a proper understanding of the necessity, for instance, to find intermediate facts beyond reasonable doubt, that one can understand how one can reach guilt as a finding beyond reasonable doubt. In this case, nobody looked at the question of whether the process of reasoning required, of necessity, the satisfaction beyond reasonable doubt of some intermediate stage such as that Ms Arcus did not have the money, that Ms Arcus did not have the intention, that Parker was not hiding the money in his satchel.

It was only if those things were proved that the ultimate conclusion could be reached. In one sense they are manifestations or articulations of one aspect of the final conclusion. They had to be practically, and by the process of reasoning, proved beyond reasonable doubt. They were not so proved. They were not so proved, we would submit, by an impermissible route and that left this man, in our submission, in effect, exposed to the proposition that apples and pears had been added together, in the sense that things had been added up to prove guilt but what had not been looked at is what was the effect of the improbabilities of guilt accumulated.

This was not a simple one-stage case. Cutter was. So was Wright. But it is really only in those two decisions that this Court has attempted to give clarity to what Sir Owen Dixon said in Martin v Osborne and what the Court has said in Chamberlain where the Court itself embarked on an unsafe analysis, that is an analysis of an unsafe situation, and again in Cutter where the Court embarked on the analysis. But in neither Chamberlain nor Cutter, and particularly not in Wright and Cutter, does the Court clearly express where the bar can be set in terms of the contrast between guilt and innocence. We are not asking for a contrast between guilt and innocence but we are saying that something has to be said about the other side of the record, that is what the doubt - how the doubt can be examined.

Your Honours, this was really an example of an intuitive leap from middle findings. It may have been safe, but one cannot tell by the reasoning technique. In those circumstances, we would submit it is, because of the exposure of the reasoning, and because the same reasoning applied to every count and to each fact, a peculiarly useful vehicle to look at that question.

Unless I can assist the Court further, they are the submissions on behalf on the applicant.

BRENNAN CJ: Thank you, Mr James. We need not trouble you, Mr Mactaggart.

The argument advanced for a grant of special leave seeks to transform mechanically the assignment of reasons for reaching conclusions of fact into instances of misapplication of legal principles. There are legal restrictions on fact finding derived from the requirement of proof of guilt beyond reasonable doubt but the steps of fact finding to which exception is taken in the present case are merely expressions of the matters which induced the tribunal of fact to reject the hypotheses consistent with innocence. The Court does not propose to grant special leave to appeal.

AT 9.25 AM THE MATTER WAS CONCLUDED