Hatfield v The Queen S191/1999 [2000] HCATrans 198 (18 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S191 of 1999

B e t w e e n -

IRENA HATFIELD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 2000, AT 2.04 PM

Copyright in the High Court of Australia

MR I.M. BARKER, QC: If the Court pleases, I appear for MR P. BYRNE, SC, and MR S.J. STANTON for the applicant. (instructed by S.A. Teen)

MR R.D. ELLIS: If the Court pleases, I appear for the Crown, with my friend, MR D.C. FREARSON. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Barker.

MR BARKER: Your Honours, our case is that the proposed trial would be an abuse of process because it would be unfair to the applicant and the unfairness cannot be cured or alleviated. This is a trial for a murder which happened 15 years ago. The facts, very briefly, are that the deceased was shot five times whilst he was on a lounge in his home. The applicant was in the home at the time; she says, in bed.

There was a long police investigation and a coronial inquiry. She was never charged. Then, she was charged on 13 June 1997 because of some words she was said to have spoken to her then lover which it is said amount to a confession to murder. So, the evidence will focus on two issues: the circumstances of the killing; and, secondly, the alleged confession.

GLEESON CJ: Am I mistaken or was there another alleged confession too?

MR BARKER: There are later taped conversations which might be said to bear that quality but that is a matter of debate. It is also a matter of debate whether they will get into evidence.

McHUGH J: Is there not an alleged confession to a Ms Pereira?

MR BARKER: That was at Elcho Island, yes. That is the strange part of it, your Honours. The words she is supposed to have said to this person, Busby, are precisely the same words which she jokingly uttered at a social occasion not long before and although it does not matter for the purposes of this application, I submit that the defence says these words have been ripped out of context. But the problem here is this, that as to the circumstances of the killing, the police cannot or will not produce any of the physical exhibits seized at the scene, that is to say, a nightdress and a nightgown worn by the applicant; a T-shirt worn by the deceased; a blanket which covered the body at the time of the shooting and a bloodstained glass. They also say they cannot find a 22 rifle and silencer which were found in the sea and said to be the possible murder weapon.

As to the so-called confession, this was made on 30 May 1996. The next day, Mr Busby, to whom it was made, went to a student psychologist counsellor for a counselling session followed by 12 further sessions, he says, because of what he was told. The notes of each of the 13 sessions have been lost. This is the first time in history of the counselling service at the university which has lasted for 13 years that such a thing has happened. I will come back to that, your Honours.

Regarding each of these two bodies of evidence, we say there are two issues which are relevant to this application. One is the significance to the defence of the missing items and, two, is the reason why the items are missing. Evidence of the rifle was led and test firing of the rifle was led at committal. If the Crown does not propose to lead it at trial, well then, it becomes a matter of little importance.

McHUGH J: Well, they might have some difficulty getting it in, in any event, would they not?

MR BARKER: They may have, your Honour. It does not go very far but it is - - -

McHUGH J: Or anywhere.

MR BARKER: It is just remarkable that it is one of all these things that went missing. The importance to the defence of the applicant's clothing was that we would have hoped that modern scientific technology may well have established, positively, a complete absence of gunshot residue or blood.

McHUGH J: What do you say about the argument that is put against you, and accepted by the Court of Criminal Appeal, that it really depends on her word as to what she was wearing in any event?

MR BARKER: Well, it never seems to have been doubted before and if a jury accepted that that is what she was wearing it would be powerful evidence pointing to innocence, more powerful than a concession by the Crown that there was no evidence of blood or gunshot residue. You see, when the expert ballistics man, Detective Ransome was cross-examined about this at committal, he said, well, yes, there was none, but gunshot residue detection technology in those days was in its infancy and who knows what would be disclosed by modern technology?

McHUGH J: I am sure that question will not be asked if there is a trial.

MR BARKER: No, probably not, your Honour, but the point is it points to the disadvantage to the accused by not having these articles. I mean, it is, surely, the common experience of most members of the criminal Bar that very close examination of evidence can yield quite unexpected results and here it is all gone.

GLEESON CJ: Who called the police?

MR BARKER: The applicant.

GLEESON CJ: And what time did they arrive?

MR BARKER: A bit after midnight.

GLEESON CJ: And what was she wearing when they arrived?

MR BARKER: She was wearing a nightdress and the nightgown. The blanket and T-shirt are important matters. If I could take your Honours briefly to what the Court of Criminal Appeal said about this at page 37 - I am sorry, if I could go, firstly, to page 8 where its importance is explained by Justice Grove in paragraph 16:

It should be mentioned that there is inconsistency between witnesses concerning some observations at the scene. Dr Kariks who performed the post mortem noted that "the bullet wounds in the right fronto-temporal area were surrounded by gun powder spray measuring 5.5 cm x 4 cm in area". Detective Ransome said he saw no such gun powder spray.

So, I do not know what the Crown case would be in that regard.

That contradiction would not be removed by the presence of the missing exhibits. Detective Ransome did claim to see marks which could have been gun shot residue on the blanket. It is now missing but it was not, as I understand it, subjected to appropriate tests then nor, of course, can it now be so subjected.

Well, your Honours will appreciate that there were four bullet wounds - four bullets to the head and one to the chest. The closer the muzzle to the body, the more likely it is that the assailant's clothing would have been contaminated by blood and gunshot residue. Proper examination of this blanket might yield the result that what Ransome said he saw was a burn mark around the hole which would indicate the muzzle almost in contact with the body. He says he saw what he thought was gunshot residue but there is - - -

McHUGH J: But is that not against you, really? Would you not want to be distancing yourself from that? If some outside person has killed him, it is unlikely they were going to sneak into the house and held a gun up against his forehead and shot him, is it?

MR BARKER: Well, he was asleep.

McHUGH J: Well, I know he was.

MR BARKER: It would also muffle the sound because the bullet would not be able to reach the speed of sound.

McHUGH J: Well, it may have had the silencer on it.

MR BARKER: It may have, your Honour. But the point of all this is the Crown says it was her personally. She is not going to be charged in the alternative as an accessory. So, if she was there doing it, and if she held the muzzle against the man, it is odds on that there would have been evidence on her clothing of that fact. But we cannot even see the blanket because the police say they have not got it, they cannot find it. We cannot see the T-shirt because the police say they have not got it. There is a bloodstained glass. That is dealt with at page 11 of Justice Grove's judgment, paragraph 23:

I did not understand it to be alleged that the loss of a blood stained glass from the room where the shooting took place presented the accused with any particular obstacle -

Well, we do not know, your Honours. In the absence of the object and even a description of the disposition of the blood on it, we cannot say whether it would have helped us or not. We do not know whether, for example, the blood was in the form of a fine spray or a smear or what. It would seem to be a potentially important piece of evidence which is simply gone because the police cannot find it. The reasons why they cannot find it I will come to very briefly in a minute.

If I can go to the psychologist's tests. We say it is very likely they deal with what Busby says the applicant said to him. Perhaps how he viewed the words; whether he really thought she was confessing to murder or whether he did not know or what, we just do not know. But in the absence of the notes it is impossible to assert positively they would assist in cross-examination. They may well have. We demonstrate, we submit, the clear potential for prejudice. It is another significant area of evidence which was - - -

McHUGH J: What do you mean by "prejudice" in this context?

MR BARKER: Well, here is the principal Crown witness who goes to a psychologist the day after these words were uttered because he needs counselling. Now, there is probably material in the notes which - well, it is very likely there is material in the notes which relates to what he says he was told and it is really no different, we submit, to the notes taken by the social worker by a person complaining of a sexual offence. They may well enable an effective cross-examination. It is unfair that we are denied that opportunity because the notes have mysteriously disappeared. These are 13 different consultations each of an hour and they have all gone.

We submit that Justice Grove was wrong in his assessment of this at page 12, paragraph 27:

It was submitted that it was obvious that what Mr Busby said (to Mr Peinecke) -

he is the psychologist -

may bear directly upon his real view of conversations with the accused (assuming it is different from his testimony); whether he is confused as to occasion and whether he has now attributed significance to anything the accused has said which he did not previously. Of course it can be guessed that such matters may have been discussed but I do not agree that it is obvious that they were.

Paragraph 28 he said:

It was claimed that the defence cannot "test the issue". Even if the records were available the Crown would not be expected to seek to call Mr Peinecke in the trial to say what Mr Busby told him. Mr Busby is an essential Crown witness and what is desired in truth is the opportunity to inspect records (and provoke a revival of memory on the part of Mr Peinecke) for the purpose of cross examination (and, if necessary, contradiction) of Mr Busby directed to the credibility of his allegation that the accused had confessed to him or had seriously confessed to him. I am unpersuaded that the absence of these records which may or may not provide a resource for challenge to Mr Busby has the effect of making it unfair that the accused should stand trial at all.

Well, in my respectful submission, his Honour is wrong. He said, again, at page 16, paragraph 36, referring to a Canadian case on our list of Carosella:

Carosella was a case where a sexual assault crisis centre followed a policy of deliberately shredding files with police involvement before being served (with order for production) in criminal proceedings. However the majority noted that:

"There was abundant evidence before the trial judge to enable him to conclude that there was a reasonable possibility that the information contained in the notes that were destroyed was logically probative to an issue at the trial as to the credibility of the complainant."

I perceive no such abundant evidence of likely probative material in the present case. Even assuming that the trigger for Mr Busby's attendance was shock at the alleged revelation of murder it is entirely speculative whether the counsellor was told any detail which might be probative in the sense that it would touch upon Mr Busby's evidence or its credibility.

Now, that is wrong, with respect, because there is no reason to assume that these notes would be any less probative than the sort of notes talked about in Carosella.

It is material, your Honours, to consider why the evidence is missing. If there is evidence of mala fides, the court may infer that the evidence would not have assisted the Crown or - - -

McHUGH J: Why? You just do not know. I mean, the counsellor may have destroyed them because he thought that it would affect the principles of confidentiality. It is even a possibility - I say no more - that there has been a break-in by somebody connected with somebody involved in the proceedings. It could have been Busby.

MR BARKER: Yes.

McHUGH J: It could have been your client?

MR BARKER: That is evidence in the possession of a third party. As to that, we say that if there is prima evidence of mala fides, the court might infer that those notes would not have helped Mr Busby or his credibility. As to the material in the possession of the police, if that has gone under suspicious circumstances, we say, well, again, the court may infer that that would not have helped the police case.

The explanation here indicates there has been no sensible explanation of why all these things are missing. Justice Grove dealt with it at page 5, in paragraph 8, where he talked about a statement by Detective Constable Allison that:

"3. A number of inquiries have been made in an effort to locate the following exhibits.....

4. None of these exhibits have been found.....

5. I spoke to a number of Police Officers who.....could not assist -

then, if we go over the page, he said it is common ground the glass is missing. The magazine has been retrieved.

The holed woollen blanket which had partly covered the deceased should also be included in the schedule of missing items.

There were some cards produced which recorded movements of exhibits. One of them shows:

relevant items of clothing and the rifle being received by a Detective Long from Detective Ransome.....Detective Long is no longer in that service. Detective Ransome testified at committal that the last record he believed he had would relate to producing the items to the Coroner.....the usual practice was for the Coroner's exhibits to be returned to the officer in charge.....it would be either Detective Long or Detective Ralston.

Now, Long has left the police force. No effort has been made to find him, on the evidence, and Detective Ralston has not been spoken to. So, there has been absolutely no effort made, on the face of things, to find the items or to even speak to the only two police officers who might have been able to throw some light on the matter. I see I am at amber.

The counselling records, your Honours - may I briefly draw attention to this chronology? The counselling commenced on 31 May 1996. There were 13. On 1 April 1998, the defence served a subpoena on the psychologist for their production at committal. On 6 April, five days later, Mr Busby, who had not been seen for some months, attended for a counselling and was told by the psychologist that the subpoena had been served. Mr Busby objected to the notes being produced and wrote a letter to that effect. On 7 April the psychologist disclosed that all the notes were missing. The psychologist can remember nothing of what Mr Busby told him. It appears from an affidavit tendered at committal that this was the first time in 13 years that such a thing has happened.

In my submission, Justice Grove was wrong in his assessment as to the possibility of suspicion at page 15, paragraph 34, where he said, in respect of the counselling notes and the physical evidence, line 20:

In respect of both the physical evidence items and the counselling records, it could be readily postulated that the respective keepers did not meet the standards requisite for a person exercising due care in discharging a responsibility but there is no aspect that I would assess as elevating the circumstances into the range of unacceptable negligence.

Now, with respect, that is just wrong because of the circumstances I have outlined to your Honours.

The test of whether it is proper to stay proceedings on indictment is the same here as in Canada which is why we cited the case of Carosella.

GLEESON CJ: Yes, thank you, Mr Barker. Yes, Mr Ellis.

MR ELLIS: Your Honour, the Crown's position is that the law in Australia is both clear and well settled and it is simply a case of applying principle to any particular set of facts. Every time there are different factual circumstances it does not call for this Court to either refresh or bring down a new principle. The principles are clear and have been applied. They have certainly been applied in this jurisdiction with the result that matters have been stayed. They have similarly been applied with the result that matters have not been stayed. All that has happened in this case is that the discretionary factor has been taken into account by his Honour Justice Grove in terms of whether or not, in his view, the accused could obtain a fair trial. His Honour, on the factual material before him determined that the applicant had not established, he bearing the onus, that the applicant could not obtain a fair trial, in other words, the prejudice was so unacceptable that it could not be cured by directions.

The Crown says, really, that the Court is simply being asked to, as it were, reconsider the factual situation, reconsider the discretionary matters which have been considered by Justice Grove and subsequently by the Court of Criminal Appeal and that there is no principle of law which would require this Court to intervene and to grant special leave.

The principles have been set out and were specifically applied by Justice Grove in his judgment and similarly by the Court of Criminal Appeal in their judgment. The question of the Canadian authorities really takes the matter no further. Even within the Canadian jurisdiction, the example of the two cases of Vu and Carosella are an application of the same principles of the Charter resulting, in the one case, that is the Carosella Case where the clinic deliberately destroyed the notes in order to circumvent any attempt by a court in the future to obtain such notes, was to stay. In the other case, in which a police officer had lost a tape, the same Bench, in fact, of the Supreme Court of Canada ruled that there ought not to be a stay. The Crown says that is but one more example of the many that can be found in this jurisdiction of different results being obtained but from application of the same principle.

The accused in this case, if it does go to trial; will, in fact, maintain a position of having a court at appellate level subsequently review whether, in fact, there had been a fair trial so that this, as it were, is not the last course or last resort, if you like, in terms of this issue. If things transpired during the course of the trial which an appellate court subsequently find result in a miscarriage, then it can be dealt with at that point in time. The individual items that are missing or unable to be located: I think I have dealt with them separately in my written submissions. I do not think I can take it any further than that other than to perhaps point out in relation to the gunpowder residue, really, the only possible advantage is the suggestion that if it was very close one would expect there to perhaps be some splattering either of blood or gunshot residue on the clothing of the accused. Given that the Crown has made the concession that in fact the clothing did not have such a residue, it is difficult to see how it could possibly get any better for the accused. Even if the clothing was now available, located and tested, the result would still simply be "latest testing fails to reveal any such residue".

McHUGH J: What about the blanket? It is put against you that the blanket might have contained a burn mark which would suggest that the gun was fired at very close range. If that were so, then the fact that there was no residue on the nightdress would have a very different complexion, would it not?

MR ELLIS: I accept that, your Honour. The Crown will have that difficulty now, having made the concession, that it is at least a reasonable proposition, even on the material as it now stands, that one would have expected, if in fact the person was close and the gunshot residue is noticed by, I think it is Detective Ransome, certainly would allow the defence to argue that that was the situation even though that is not confirmed by the post-mortem findings, it is still there for the defence to utilise. It really still comes back to the one point of the clothing. The Crown's only answer in relation to the clothing is, "Well, was she wearing that particular clothing at the time?" The gun was disposed of at some point of time by the killer, because the gun was not there. Obviously, any items of clothing upon which there was a blood splatter, for instance, or a gunshot residue could similarly have been disposed of. So, the Crown argument on that is restricted to that proposition, given the concession that has been made.

McHUGH J: What is the evidence as to the likely time of death and its relationship to the calling of the police?

MR ELLIS: The post-mortem - the doctor is unable to be so specific as to help in terms of hours and he puts it within that general time frame but it is not possible - - -

GLEESON CJ: Within what general time frame?

MR ELLIS: Within the general time frame of the 12 o'clock call or the "shortly after midnight" call, sometime between - I think it is about a 6-hour - I would have to refresh my memory, but he is unable to get it with anything closer than a 6-hour period, so it is not a case of being able to say there is an unaccounted hour based on any particular cause of death. The complainant's version is that she had gone to bed sometime, I think, shortly after 10 and then came down - she was not woken by anything but she came down when she noticed that he was not there with her in bed, and that is when she found him and that was the time shortly after 12, she says, that she made the call.

There was some evidence from neighbours in terms of vehicles coming into and/or out, depending on how you interpret that evidence, of the driveway between the 11 o'clock and 12 o'clock time frame.

GLEESON CJ: Is it the case that according to her evidence, he was alive at 10?

MR ELLIS: Yes. The other aspect of this matter is that as your Honour Justice McHugh pointed out, the trial judge would certainly be in a position to rule on a number of these items and it may well be, for instance, that the gun - assuming the defence do not want it in - there is, perhaps, a forensic reason why they might, but assuming they do not, there is a reasonable prospect that that would be ruled out, I would have thought.

In relation to other pieces of evidence, it is possible, for instance, that a Basha inquiry could be held at some point during the trial so that there would be an opportunity to cross-examine at length Mr Busby and Mr Peinecke, the counsellor, on the issue of the disappearance of the notes.

The other aspect is that a Longman-type warning could be given by the judge. It is often the situation in sexual assault cases where there has been a lengthy delay, evidence is missing, and the significance of that and the difficulties that it generates for an accused are often pointed out in that type of direction to the jury. There is no reason in this case why appropriate comments could not be made in relation to the absence of the notes and the possible - which is about as high as you can put it - difficulties or restrictions that that may place upon cross-examination.

The trouble with the notes is that it is a little bit of a two-edged sword. If in fact he receives on 30 May, I think it was, a confession to murder and the very next day goes to see a counsellor and reveals that, that is fairly strong corroborative evidence of, in fact, Mr Busby's version that she did in fact confess to him on that day and the more material that one could find in such notes is likely, again, to provide a greater support for that evidence.

McHUGH J: Well, not necessarily. It is possible that the defence case is that he has invented the date of 30 May. Is there any other independent evidence of 30 May apart from his say-so?

MR ELLIS: I do not think there is.

McHUGH J: I mean, suppose his notes reveal that he had confessed to the counsellor a lot of things, all sorts of worries he has had, and he has not mentioned this confession at all?

MR ELLIS: Well, your Honour, for one of the tapes - on one of the occasions in which he made a number of notes, handwritten, which were then subsequently given to a local lecturer at the university. I do not remember the date off the top of my head but there is a date as to when he spoke to that lecturer when he gave the notes and, indeed, into the custody of that person and, indeed, I think, also, the first of the tapes, that is the tapes that he personally made of the first conversations - not the first conversations but of the conversations - I am not sure if your Honours are clear on that but there were some conversations initially which he says contained confessions in which there were a number of notes and he went and spoke to the lecturer about that; also he said he went to counselling. He also says that he went to counselling for another reason and that is that she had been telling him to go to counselling because of some difficulty that he had had in his childhood. So, his evidence was not that he got the confession and then went to counselling. That is an available suggestion, as Mr Barker has put, but it is not the only one.

He then taped a number of these - covertly taped a number of these conversations. After that, when he eventually went to the police, he was then wired up with a legitimate or authorised warrant for a listening device and then there was further conversations. There are no admissions in those conversations. There are some denials in relation to some of the earlier conversations which may generate the Crown being able to rely on lies. So, there is quite a number of different aspects to it. There is the content. Even within the tape, Mr Busby is talking about being concerned about section 334, I think it was then, which was a concealing of a serious offence, as he was doing some legal studies himself, and that is part of the topic that was raised.

So, it is not a simple strand. There are a lot of different things that he was doing at the time and some of those will be admissible; some may not become admissible; some may come in via cross-examination, depending on the tactical approach adopted by the defence. But the Crown says that there is still quite a lot of material around that time upon which he can be cross-examined in terms of what he has said to either the counsellor or the lecturer at the university and that when one adds to that the Longman-type direction, the Crown says it cannot be said that, in fact, the prejudice is such that it generates or makes it impossible for him to receive a fair trial.

In any event, the Crown says that these factual-type matters and discretionary-type matters have been well and truly aired in both the Supreme Court before Justice Grove and in the Court of Criminal Appeal with a result that is not favourable to the accused, but based on appropriate principle, and the Crown says that there is no basis - there is no special leave point raised in this case.

GLEESON CJ: You have made that point before.

MR ELLIS: Yes. Unless there are some other matters that I could be of assistance, they would be my submissions.

GLEESON CJ: Thank you, Mr Ellis. Yes, Mr Barker.

MR BARKER: Your Honours, if the counsellor heard talk about an unqualified confession of murder, it is very strange that he does not remember anything of it.

As to the possibility of curing the situation by appropriate directions, no direction is going to bring back the evidence which appears to have gone forever. The Court of Criminal Appeal refused leave to appeal. We say that was wrong because of manifest - - -

GLEESON CJ: They heard full argument on the merits.

MR BARKER: Yes, but they did not pay sufficient - - -

GLEESON CJ: Well, it is the usual practice in the Court of Criminal Appeal, as it used to be in this Court, to hear full argument on a leave application.

MR BARKER: Yes. They did not, however, pay sufficient note of the errors made by the judge, in my submission. This Court has not, so far as we can see, considered a stay application made on the basis of missing evidence. In our respectful submission, this case has the potential for serious injustice and leave should be granted. If the Court please.

GLEESON CJ: Thank you, Mr Barker.

This matter involved the application of well established principles to the facts and circumstances of the particular case and involved a discretionary judgment. We are not satisfied that there was any error of discretion sufficient to warrant appellate intervention. The application is refused.

Call matter No 2, please.

AT 2.40 PM THE MATTER WAS CONCLUDED