Smith v The Queen A41/1998 [1999] HCATrans 284 (12 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A41 of 1998

B e t w e e n -

TREVOR JOHN SMITH

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A42 of 1998

B e t w e e n -

THE QUEEN

Applicant

and

TREVOR JOHN SMITH

Respondent

Applications for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 4.19 PM

Copyright in the High Court of Australia

____________________

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with my learned friend, MRS M.E. SHAW, QC, for the applicant. (instructed by Michael Dadds)

MS W.J. ABRAHAM, QC: If it please the Court, I appear with my learned friend, MS S. McDONALD, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ: Yes, Mr Kourakis.

MR KOURAKIS: If the Court pleases, the question of general importance which, in my submission, arises on Smith's application, in effect, it is a summary of the questions appearing on the written outline is this: whether a Court of Criminal Appeal should apply the proviso in a case where it finds that with respect to some counts on an information the jury has been wrongly directed to consider propensity evidence of sexual offending which was inadmissible on those counts - - -

GLEESON CJ: Could I ask you a question about the facts. On the counts, the subject of your application, which related to the second and third incidents, there were fingerprints of your client, as I understand it, found on the premises of each victim.

MR KOURAKIS: Yes, that is right. With respect to the Taylor offending, which was count three, on the inside of the gate, and with respect to Mrs Wallace, on a screen from a window.

GLEESON CJ: Now, one of those buildings was eight kilometres from where client resided?

MR KOURAKIS: If your Honour pleases, I am not sure, but it was in the area.

GLEESON CJ: What was the distance of other one?

MR KOURAKIS: The applicant Smith resided close to a northern suburb but I am afraid I do not have the precise - - -

GLEESON CJ: All right. Well, my question to you is this, what was the defence case about those fingerprints?

MR KOURAKIS: The defence case was that their presence at those two addresses was accidental in the sense of not connected with the offences charges.

GLEESON CJ: Was there any possible explanation - innocent explanation - as to how they might have got there?

MR KOURAKIS: No explanation given. The applicant did not give evidence.

GLEESON CJ: That is the evidence, as I understand it, that the Court of Criminal Appeal, in conjunction with the evidence about the use of an automatic machine said rendered conviction inevitable.

MR KOURAKIS: If your Honour pleases, the Court of Criminal Appeal did not express it as highly as that. They said it was a very strong Crown case but, in my submission, and indeed this is the question that arises - - -

GLEESON CJ: Did they not express it as highly as that, though?

MR KOURAKIS: No, if your Honour pleases. His Honour Justice Perry at page 111 at paragraphs 133 and 134 - in particular, paragraph 134 - in applying the proviso simply said that:

having regard to the strength of the Crown case as to he appellant's involvement -

in those two incidents, Justice Perry was of the view that:

there was no risk that any substantial miscarriage of justice -

One of the questions which the applicant Smith seeks to agitate, though, is whether in a case such as this there is any room for the application of the proviso.

HAYNE J: What do you mean by that?

MR KOURAKIS: The submission is that the impermissible use, indeed the direction to use evidence which was inadmissible was so fundamental a departure, or irregularity in this case, that there was a miscarriage of justice of so fundamental proportions that there was no room for - - -

GLEESON CJ: You are talking about the direction to use evidence in relation to the Taylor and Wallace offences in support of the Crown case on the issue of the effect of the DNA testing.

MR KOURAKIS: No, your Honour. Indeed, the direction to use the evidence of the offending in the first counts, proof of which was dependent on the DNA evidence, in aid to proof on the latter counts.

GLEESON CJ: Now, where do we find that direction, or, a reference to it in the Court of Appeal will do?

KIRBY J: Your Honours, it is convenient to go to the directions, because they were quite full, of the learned trial judge at page 29 of the application book, and the directions continue over to page 30, and the directions there, in effect, are directions to use - that is that the jury were able to use the evidence on any one of the counts - - -

GLEESON CJ: I am sorry, could you just put your finger on the offending part? What line?

MR KOURAKIS: At about line 3 the learned trial judge directs the jury that they:

are entitled to use the evidence in respect of one count in relation to your consideration of other counts -

but only in the -

following limited way:

GLEESON CJ: Yes.

MR KOURAKIS: It is really the rest of the entire passage which explains that the way in which the jury can so use the evidence is this that they can find that the improbability of the various connecting pieces of evidence, either fingerprint or DNA, in total amount to such an improbability that it is unlikely that there is any innocent explanation. On page 30, after giving a direction as to improper use, at about line 12, the learned trial judge concludes:

You can only use the evidence from one incident -

and the learned trial judge is not there limiting it to the latter incidents or latter counts but making this direction generally:

You can only use the evidence from one incident in respect of the others in the way I have described. That is, to negative the suggestion that the accused is the victim of coincidence and that an innocent explanation may possibly exist, which would entitle the accused to an acquittal.

Now, if the Court pleases, they were the directions the Court of Criminal Appeal, in my submission, correctly found, that - - -

HAYNE J: Just a moment? Have I misunderstood this? The charge seems to me to be saying at 29: fingerprint evidence, one count; fingerprint evidence, second count. The judge says you are entitled to look at that and the possibility of coincidence but, then, the third count: no fingerprint evidence applied there; not backwards which seems to be what you are putting to us now. Have I understood?

MR KOURAKIS: No, if your Honour pleases, the scheme of the particular examples of how the evidence could be used proceeds in the way your Honour Justice Hayne has summarised.

GLEESON CJ: And, so, in relation to the two premises where there were fingerprints he was saying, "To have your fingerprints found on the premises of one assault victim may be a coincidence. To have your fingerprints found on the premises of two assault victims is carelessness".

MR KOURAKIS: If your Honour pleases, but it was not limited to those two counts and, in particular, on the top of page 30 the direction was given with respect to the third count which can only be a reference to the DNA evidence.

HAYNE J: Yes.

MR KOURAKIS: Although the particular application of the use which, the learned trial judge adopted, worked from the fingerprint cases to the DNA case, it was not so limited and the direction on page 30 makes that clear.

HAYNE J: What he says, though:

You can only use the evidence from one incident in respect of the others in the way I have described.

MR KOURAKIS: And goes on:

That is, to negative the suggestion that the accused is the victim of coincidence -

referring to all three counts.

GLEESON CJ: To the extent to which the Crown might have thought it obligatory and negative the possibility that having your fingerprints on the premises of two assault victims is a mere coincidence is the problem that he was telling them that if they found on the basis of the DNA evidence in relation to the first matter they could take that into account to negative the possibility that it was a coincidence.

MR KOURAKIS: Yes.

GLEESON CJ: And the Court of Criminal Appeal said it would be very surprising if the Crown had to undertake the task of negativing that possibility.

MR KOURAKIS: It effectively said that on the evidence with respect to those counts alone presented a strong Crown case, but not an inevitable one. It did not express it as highly - - -

GLEESON CJ: They said "no risk" -"there was no risk of a miscarriage of justice".

MR KOURAKIS: Yes.

GLEESON CJ: Now, what is the answer to that?

MR KOURAKIS: In my submission that this irregularity is so fundamental, the importance of excluding evidence of sexual propensity from a jury's consideration, if it is not properly admissible, is so fundamental an irregularity that the conclusion is that there is a miscarriage of justice, irrespective of a consideration of strength of the Crown case.

HAYNE J: The proviso only comes into operation when there is a misdirection or mis-reception of evidence, so the premise for its consideration is misdirection. What is it about this misdirection that warrants the attribution of fundamental? Has it changed the way the trial was conducted? Has it made the trial not a trial? To the extent of the misdirection, it is not a trial in accordance with law? What is it that is fundamental?

MR KOURAKIS: Your Honours, I do not point to anything particular about this case that makes this irregularity any more fundamental than it is in any case when propensity evidence of sexual misconduct is improperly admitted and the jury asked to rely upon it.

HAYNE J: Has it changed the way the accused conducted the trial?

MR KOURAKIS: If your Honour pleases, there is a great potential for that because - - -

GLEESON CJ: No, in this case.

HAYNE J: In this case.

MR KOURAKIS: The accused did not give evidence but if the charges had been not joined may well have.

GLEESON CJ: What do you mean by that? Do you mean if he had been standing trial only in relation to the fingerprint evidence he might have given an explanation of how his fingerprints came to be on the two premises.

MR KOURAKIS: If your Honour pleases, all I say is - - -

GLEESON CJ: I know you say that but we have got to test your propositions. Can you explain a process of reasoning in relation to the tactics or conduct of the trial that might produce that result?

MR KOURAKIS: In my submission, the process is similar to one in fact expressed by your Honour in a case of OG, I think it was, in the New South Wales Court of Appeal, where in a case of sexual offences it was postulated that the accused may not wish to give evidence of the sexual conduct, which was consensual - - -

GLEESON CJ: That was the case of a man who had had a long history of a sexual relationship with a younger man and he was charged with some offences in circumstances where he had a possible defence, based on consent, in relation to some of the offences but if he had given that defence he would have talked himself into trouble in relation to the others. This does not seem a very similar situation to me.

MR KOURAKIS: If the Court pleases, an explanation as specific as that is not immediately apparent but there may well be cases where evidence of alibi on one count could have been given but evidence was not given, generally, because of the number of counts. That, in a sense, is a theoretical possibility. I make my submissions more strongly - - -

HAYNE J: Can I say to this, it is a practical problem. The accused has got his fingerprints at two sets of premises. It is a bit awkward to explain.

MR KOURAKIS: Your Honour, the Court of Criminal Appeal said the case was strong and I do not shy away from that. That is obvious. The question, with respect, is whether the wrongful admission, and indeed the direction to have regard to evidence of propensity of sexual misconduct is so fundamental that nonetheless there has been a miscarriage of justice because the irregularity is so fundamental. His Honour Justice Perry accepted that the jury may well have been influenced by the evidence in the White counts in coming to their conclusion on the remaining counts, notwithstanding what his Honour observed was the strength of the Crown case on that.

In my submission, the decision of this Court in De Jesus, in fact, shows how fundamental this Court regards the wrongful admission of such evidence. The majority of this Court in De Jesus allowed the appeal and quashed the convictions simply on the basis that the rule was so fundamental that evidence of this sort ought to be excluded. The point of difference between the majority and the dissenting judgments of Justices Mason and Deane was that Justices Mason and Deane did look at the facts and decided that on the facts of De Jesus there was an overwhelming case. The majority, however, did not go to consider that matter, ruling simply that the irregularity was so fundamental that the convictions ought to be quashed. Can I go briefly to the judgment in De Jesus because - - -

HAYNE J: Just before you do, what is different between this case and Wilde where there was wrong direction about propensity evidence and the Court held, by a majority, that that the proviso should be applied? Indeed, I think Wilde was a fingerprint case, too.

MR KOURAKIS: If your Honour pleases, the difference about this in this case is in fact that the evidence with respect to the White count was simply not admissible at all and it was not just a matter of not giving all the warnings and matters of that like, it was evidence of sexual propensity that was wrongly admitted altogether. Can I go to the decision of this Court in De Jesus because, in my submission, the statements there treat departures such as this as being a matter of fundamental irregularity. Can I go to page 3 of the report and to the judgment of his Honour the then Chief Justice and take your Honours to the second column about letter E where his Honour Chief Justice Gibbs said:

Since the evidence on one count was inadmissible on the other, Sutton v The Queen required it to be held that the two rapes should not have been joined in the one indictment. There can be no doubt that the joinder was highly prejudicial to the applicant - indeed, it seems to me that in this case, where the applicant was raising an issue of identity in one case and an issue of consent in the other, the jury would inevitably have been influenced by the fact that the offences were tried together -

His Honour the Chief Justice's conclusion was simply that such was the departure, the convictions should not be allowed to stand. In passing, at page 7 in the first column, your Honours will see in the judgment of Justices Mason and Deane the consideration of the facts of that case and that there had not been a miscarriage because of the strength but then in the second column in the judgment of his Honour Brennan, from about the paragraph commencing at about the letter D, Justice Brennan referred to his decision in Sutton and summed up the rule in this way:

Suffice to say that when the admission of the evidence admissible on the charges joined in an indictment carries the risk of impermissible prejudice to the accused if the charges are tried together, separate trials should be ordered.

The concluding paragraph was simply a conclusion to the effect that such was the prejudice that there was no other option, effectively, but to quash the convictions. Finally, on page 10 in the judgment of his Honour Justice Dawson, in my submission, his Honour's judgment in the first column makes it clear that unless such a rule was to be applied the very principles restricting the admission of similar fact evidence would, in effect, be undermined. Again, his Honour Justice Dawson expressed the general rule that on the admission of such evidence there would be a miscarriage, except in those cases where a careful direction might have cured the prejudice. In this case, the direction was not against the use of the evidence but was in fact to use the evidence.

Can I go briefly to the judgment of his Honour Justice Perry and Justice Bleby to show that it was accepted that the evidence on the White counts was inadmissible with respect to the latter counts and can I take your Honour's to page 98 of the appeal book in paragraphs 81 to 83 of his Honour Justice Perry's judgment? Your Honours will see there that the only cross-admissibility accepted by his Honour Justice Perry was the admissibility of the evidence on the Taylor and Wallace counts to prove the evidence on the White count, but importantly, looking at paragraph 83, that evidence was only admissible if the jury accepted the Crown case as to the DNA evidence, that is, accepted the evidence of the Crown in preference to the contrary evidence of the defence expert.

His Honour Justice Bleby was even clearer at page 117 in paragraph 13 where he held that:

that the evidence in the Taylor and Wallace cases was truly cross-admissible -

meaning as between themselves but that -

the evidence in the White case was not admissible in the Taylor and Wallace cases.

If the Court pleases, that follows because of the dispute as to the DNA evidence and whether it indeed restricted the offender to a very small class of people, including the applicant. But once that is accepted, your Honours, the effect is that with respect to the latter counts the convictions were affirmed in circumstances where the highly prejudicial effect of the White counts was put before the jury. There was a direction which I have taken the Court to which, in my submission, was to the effect that it could be used against the appellant on the remaining counts and there was certainly no direction warning them about the danger of so using it in that way. In my submission, the effect of that is simply to leave such a miscarriage that it is fundamental and the observations about the strength of the Crown case, in my submission, are no answer to what is, on the face, a miscarriage of justice. If the Court pleases.

GLEESON CJ: Thank you. Yes, Ms Abraham.

MS ABRAHAM: Your Honours, in my submission, in relation to the exercise of the proviso this case, indeed, was an overwhelming case in relation to those particular two incidents in relation to the fingerprints. Your Honour the Chief Justice asked about a couple of matters of fact. One of the houses, the house at Prospect, the Taylor incident, was in fact eight point seven kilometres from the Wingfield address where the appellant had been arrested. The other incident was at Melrose Park and although there was no specific distance, the jury did go on a view. It is a much further south suburb than Wingfield, so it is much further away than the Prospect address.

GLEESON CJ: Was there a record of interview with the police?

MS ABRAHAM: He declined to answer any questions and he did not give evidence. In my submission, the facts of these two particular counts in themselves were overwhelming and it was right and proper for the Court of Appeal, having made the conclusion that they did in relation to the White incident to apply the proviso in relation to these incidents.

GLEESON CJ: Now, so far as your application is concerned, am I right in thinking that the basis on which a new trial was ordered in respect of the counts concerning the White incident was that the Court of Criminal Appeal took the view that having regard to the nature of the contest about the DNA evidence the jury in this particular case should have been instructed that they could not draw on the evidence about the other two incidents to assist them to resolve that contest? Is that the essence of it?

MS ABRAHAM: It is but it is difficult to see whether the conclusion is reached because - the nature of the particular contest in this case because it was not a particularly unusual contest, it was a run of the mill - - -

GLEESON CJ: Just explain, briefly, the nature of the contest, then, that was being resolved.

MS ABRAHAM: Yes. The witness for the Crown who conducted the DNA testing and obviously gave evidence of the tests involved and had provided her notes to the defence expert who gave evidence challenging some aspects. The challenge, in my submission, did not relate, obviously, to the woman's qualifications to give evidence for the Crown or indeed the collecting of the samples. Indeed, it was accepted, obviously, that the results that were obtained by Ms Williams, the DNA forensic scientist for the Crown, were in fact obtained and so it became a question of what interpretation could be put on those particular results. In effect, it was twofold.

Dr Atchison said, "Well, we have got a low level of sperm in the sample, therefore he should not do the test any way".

HAYNE J: Insufficiency of sample. Insufficient size of sample.

MS ABRAHAM: Yes, that is correct, and therefore that produces unreliability. Secondly, with these results that, "You have got you should have interpreted them a different way, you should have excluded him on the tests". Obviously, Ms Williams disagreed and, in my submission, there was good explanation for that. The third topic he came up with and it was very late in the piece and it was apparent to the jury it was very late in the piece because Ms Williams had to be recalled on the topic, was the question of the statistical probability. Late in his evidence he reduced the statistical probability from one in 10,000 for this particular DNA typing to one in 20 and Ms Williams was recalled. That not having been put to her.

So, that, in my submission, were the three bases of the evidence. So, it is not an unusual situation in relation to expert evidence. There was nothing particular about this case.

HAYNE J: But the joinder of the break and enter counts, if I can inaccurately refer to them as that, with the sexual offence count was seen as leading to some difficulties, was it not? That taking satisfaction of guilt on the break and enter counts really did not tell you much about the sexual offence count, did it? There ought to have been severance in this case, should there not?

MS ABRAHAM: In my submission, no, and indeed if one looks at the Court of Appeal judgment it appears that the judgment is based on law. You have conflicting expert evidence. That in fact has to be determined first.

GLEESON CJ: Yes, but the fingerprint has got him into trouble about the sperm.

MS ABRAHAM: Yes. In my submission, if one looks at the proper basis of admissibility of this evidence and that is the inherent improbability of three incidents with an underlying unity and there was - - -

HAYNE J: Well, "underlying unity", there is the question.

MS ABRAHAM: Well, in my submission, clearly an underlying unity when one has three incidents within the space of five weeks, incidents where they were older.

HAYNE J: You make it sound as though they are the only three incidents of crime in Adelaide in five weeks, Ms Abraham.

MS ABRAHAM: Not quite, but they are the only three that have really similar aspects where there is evidence that it could have been the accused in each incident and that, in my submission, cannot be ignored. I mean, they are not common sorts of incidents, they were incidents that were against older women.

GLEESON CJ: Just take one aspect of the scientific issue. You have an expert here saying that amount of sperm is too small for reliable testing.

MS ABRAHAM: Yes.

GLEESON CJ: You have an expert on the other side saying it is perfectly adequate for reliable testing. How could a jury rationally resolve that conflict by reference to the fact that this man's fingerprints were found on two other premises?

MS ABRAHAM: In my submission, it is like any other conflict in expert evidence. The jury is entitled to look at other admissible evidence and the jury is entitled to ask themselves, "Well, this woman that has given evidence for the Crown says this is appropriate. She is the one that does the tests day in and day out".

GLEESON CJ: Yes, but as a matter of logic, the question of the adequacy of the material for testing is a question of purely scientific opinion that ought to be resolved in isolation, is it not?

MS ABRAHAM: With respect, no, because results were obtained and as a result of the results being obtained and given that there were certain.....the scientist for the Crown has said that the problems that were said to stem from a low level of DNA did not exist in this case.

HAYNE J: Well, expose for me the chain of reasoning that you say a juror should have adopted in this regard? I am satisfied this man's fingerprints were at site A and site B on dates one and two. Because I am satisfied he performed those acts, I am therefore satisfied" what, "about the DNA test"?

MS ABRAHAM: No, they then assess, obviously, the DNA evidence and determine what weight they will place, obviously, on the evidence of the Crown expert and what, if any, weight they place on what the defence expert has to say and it may well be, given the underlying unity between the three incidents, that the jury is entitled to say, "Well, if this is correct then it is, in effect, a huge coincidence that the typing that comes up is in fact the accused's DNA typing". And, obviously, the forensic witness for the Crown had given a very valid explanation for the defence criticism and so, in my submission, one is entitled to reason in that way just as one is entitled in a normal case which does not have other evidence of propensity but other circumstantial evidence, which happens quite often, to rely on that other circumstantial evidence to prefer one line of expert evidence as opposed to the other.

GLEESON CJ: One point of view, the very strength of the case against him in relation to the fingerprint incidents, was a reason for severing the White incident, was it not, at the risk that the jury would engage in an impermissible process of reasoning in relation to the White incident because they were so easily satisfied about his guilt in relation to the others was a problem, was it not?

MS ABRAHAM: In my submission, it is not, because if the jury were properly directed, and in my submission they were about this, then they were warned very carefully about not reasoning simply because he has committed one incident, he has committed the other, but that they had to be satisfied about certain things and the directions about the DNA evidence and the expert evidence was very thorough about what they had to be satisfied about and if they had any doubt because of Dr Atchison's evidence they were to give the benefit of that doubt to the accused. But, in my submission, it is not a ground for severance. Quite to the contrary.

If the case in relation to Ms White was run separately, in my submission, the other two counts are admissible in proof of that because there is the underlying improbability of the evidence in relation to the accused, or it could be the accused, at three scenes so similar within such a short space of time, in my submission. So, it is, far from being a ground of severance, in my submission, the fact that there was cross-admissibility, it ought to have remained joined, and the directions given were very clear about that. So, in my submission, the error here that the Crown complains of is that it is not a situation that where you have conflicting expert evidence that that evidence must be resolved simply by looking at the expert evidence, because that is, in effect, what is being said and that, in my submission, is not the case, and, in my submission, the other incidents are in fact other counts. If they are properly admissible, and in my submission they are on the underlying unity principle in Pfennig, if that is so then it is unnecessary to resolve that.

In my submission, it is no different from a situation - whereas if you had some other sort of evidence on the White incident which was not expert evidence and the defence called a witness to contradict that, in my submission, there is no reason to suggest that you would need to be satisfied about the Crown evidence on that particular aspect before you could use the other evidence of the other counts. It is simply the same as appears in circumstantial evidence.

GLEESON CJ: Yes, thank you, Ms Crown. Yes, Mr Kourakis.

MR KOURAKIS: If the Court pleases. The assertion that the evidence was admissible, that is the White evidence on the latter counts, is contested, and, of course, the Court of Criminal Appeal acted on the basis that it was not admissible, in my submission properly so because the underlying unity could only be made good if it was accepted - if the Crown case on the DNA evidence was accepted, that is, the accused had to be one of a very small number of people who could have been the offender in White for the underlying unity to be found, and that was the reasoning of the Court of Criminal Appeal which, in my submission, was unobjectionable. Indeed, in this case neither the learned trial judge nor the Court of Criminal Appeal went so far as to say that the evidence of the Crown expert could be preferred to that extent in this case and, so, accordingly, an essential precondition to the admissibility was never made good.

It is for that reason that the applicant contends that the prejudice in this case was as fundamental as it was because there was just no basis upon which it was probative of the latter counts. If the Court pleases.

GLEESON CJ: In relation to both of these applications, we are not persuaded that the actual decision of the Court of Criminal Appeal is attended by doubt. Accordingly, both the application of Mr Smith and the application of the Crown are dismissed.

AT 4.51 PM THE MATTER WAS CONCLUDED