Daley v The Queen B57/1999 [2000] HCATrans 705 (24 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B57 of 1999

B e t w e e n -

TIMOTHY PATRICK DALEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 12.02 PM

Copyright in the High Court of Australia

MR T.P. DALEY appeared in person.

KIRBY J: You are the applicant and you are appearing for yourself, are you? You do not have a lawyer to represent you?

MR DALEY: No, I could not afford that, your Honour.

MR M.J. BYRNE, QC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

KIRBY J: I think again there is a problem of an extension of time in this case. You were out of time, I think, Mr Daley, were you not?

MR DALEY: It has been a long path to get to this point, your Honour, and I am not after any - - -

KIRBY J: I am just looking at the practical question of whether you need an extension of time in order to be heard. You set certain matters out on page 29 of the application book. Mr Byrne, is there any objection to an extension of time in this case, given that the applicant is unrepresented?

MR BYRNE: No, your Honour.

KIRBY J: Very well. We will just deal with the merits of the matter and we will listen to what you have to say, Mr Daley.

MR DALEY: Thank you, your Honour.

KIRBY J: You know that you have no more than 20 minutes in which to advance your arguments?

MR DALEY: Yes, your Honour. This case against me has so far been a complete travesty of justice. The Crown's case is full of deficiencies and untruths that have been presented as evidence. The main evidence against me was provided by a Mr and Mrs Burgess who have a public history of antagonism towards me. I have recently submitted supplementary documents Nos 1, 2 and 3 that outline a deed of settlement that I entered into shortly after meeting Mr Burgess after he threatened to burn my property out. I draw your attention to page 2 on the deed of settlement, especially No 4, where we had an agreement that I could bring this up in any court of appropriate jurisdiction.

KIRBY J: Just keep in mind, Mr Daley, that the case is between you and the Crown, and Mr and Mrs Burgess are not here in the sense of being parties before the Court, so they cannot really have a right of reply to what you say. That puts a bit of a limitation on what you say about them because we have to be fair to them procedurally, but I think we can take it that there was a history of animosity between you and them. I think we understand that.

MR DALEY: Yes. As I make the point later, the antagonism has mainly come from the Burgesses. I realise they are not here to answer that, but their evidence is what mainly convicted me in the original trial. So these outline previous troubles I have had with the Burgesses, in particular No 4 on page 2.

These two supposed eyewitnesses - they have provided two eyewitness statements to the police and they have also been supplementary documents Nos 4, 5, 6 and 7. These two eyewitness statements are generally identical as outlined in Part II(b) of my summary of argument. Part III of my summary of argument clearly outlines the inadequacies of the Crown's case concerning proof that a goat was killed at all. A Supreme Court judge has admitted to an air of unreality about the goat being killed. This air of unreality has been created by the complainants, the Burgesses, who have cooked up this whole case out of antagonism towards me, the applicant.

KIRBY J: Can I ask you: have you served the sentence that was imposed on you? Has that already been served?

MR DALEY: I have, your Honour. Yes, your Honour, I have already been punished for this thing that I did not do. I was given 240 hours community service and I was ordered to pay a fine of $500.

KIRBY J: So, apart from removing the conviction in your case and satisfying you in that way, any order which the High Court of Australia made would not really have very much practical effect?

MR DALEY: In a sense, I would at least hopefully receive the fine returned. The community service I was quite happy to perform because it made me part of - you know, I got to do something I felt was worthwhile, even though I was not guilty of what I was charged.

KIRBY J: I realise how you put it, but you have been sitting there during the morning, I imagine, and you have seen how so many people want to get into the Court and therefore generally we would apply a principle that we would deal with something which has a real practical significance. You say it is of significance to you to remove your conviction but you have already served the sentence, in effect.

MR DALEY: Yes. Well, the removal of my conviction I would consider to be a worthwhile experience and result from this Court because I have been wrongfully convicted. That is my submission, your Honour. If I may, I have prepared something here. I know it might take me more than 20 minutes to get through it, but could I continue with this here?

KIRBY J: All right, you continue.

MR DALEY: The accused is supposed to be given an assumption of innocence. In the original trial I did not seem to get this given to me. In this case the only assumption appears to have been assuming that the complainants were telling the truth. The Crown's barrister continuously misled the judge and jury in the trial by backing up and supporting the lies of the complainants. On multiple occasions he submitted untrue and unsubstantiated assumptions which the Bundaberg jury and judge accepted as truths.

This behaviour I found unreasonable. No forensic tests were done on the pellets that the complainants supplied to the police. This deficiency caused the Crown Prosecutor some disquiet, as per supplementary document No 10, in particular point C on that document there. It says very much clearer than what I can talk in this about what has been going on behind the scenes in this case. I realise it might seem very minor, your Honours, but in amongst it, what has happened to get me convicted, I do not consider that to be minor and perhaps there is some outcome that this Court can achieve.

KIRBY J: We understand that but, you see, we do have a system of trial in this country and the system of trial involves resolving these issues finally by jury verdicts. There are very limited circumstances in which courts can intervene. You put all of these issues and arguments at your trial. You were legally represented. The case was advanced before the jury and the jury found against you, so it is asking a lot to ask the High Court of Australia to reopen the whole thing.

MR DALEY: With respect, your Honour, I was represented by Legal Aid. I did not meet my barrister until 20 minutes before the trial and they told me if I wanted to present the evidence that I had prepared for them, that I would have to get another barrister. Now, at the time I just felt overwhelmed. I had already been put off several times in the District Court and I went with it. The barrister said, "If you're going to a doctor, you don't tell the doctor what to do", and I more or less felt overwhelmed, your Honours. I am not in and out of court every day and I let him handle it. I did not present any evidence in the original case due to the weaknesses that we felt the Crown's case was full of, and that was the legal advice that I went with.

KIRBY J: But that is the sort of election that accused people make every day in the courts of Australia, whether to go into evidence or whether to rely on the burden of proof and presumption of innocence.

MR DALEY: Your Honour, I live in a world where I do not come across court things very much at all.

KIRBY J: Of course you do not, and we understand that.

MR DALEY: I had no experience and I felt tricked. I felt tricked on the day and afterwards, instead of being given an assumption of innocence, now I am in a situation where I am forced to prove my innocence. Anyway, no forensic tests were done on the pellets. The complainants claimed that they ate the goat the night of the alleged offence before the goat carcass could be sighted by police. This was very convenient for the complainants who then provided pellets to the police. The police did not collect these pellets themselves from the carcass and did not perform forensic tests on them as requested by the Crown Prosecutor.

These were points that I only put together months after the trial, yet I had to apply for Freedom of Information to get documents that explained to me what was happening to me in my trial, because I did not know at the time what was happening. Like I say, I felt overwhelmed and I put my trust in Legal Aid. However, the Bundaberg jury found the behaviour of the police and the lack of testing to be reasonable, as the judge thought that was okay too because he did not question that behaviour. Hence my claim that I have been treated unreasonably.

Please refer to attachments 9 and 10 - that is the one I drew your attention to before - where the concerns of Legal Aid are made quite apparent in those documents in regard to their concerns that the investigating officer committed perjury during the trial. The jury did not pick up on this, even though the policeman was obviously covering his tracks. Please refer to pages 56 to 64 of my summary of argument where the policeman's time in the witness box is - that is what is there. This police behaviour is beyond my ability to discuss because it just disgusts me. I am fully aware of my innocence in this matter and I have seen what it has taken to convict an innocent man. As I say, I read through that thing that the policeman's witness - - -

KIRBY J: The trial judge did remind the jury that no ballistic tests had been carried out and it was self-evident that the dead goat was never produced, so that the jury had all this information.

MR DALEY: Yes, your Honour. That goes towards my claim that I have been treated unreasonably and that the jury made an unsafe and unsatisfactory decision. These are the deficiencies in the case that I am trying to bring to your attention. Please refer to attachment 11. This is where the Crown Prosecutor tried to make out that we were in an uninhabited and remote area. This was during his summing up to the jury. I have not been able to get a copy of his summing up for some reason, but I remember it clear as a bell, that he told them that we were living in a remote and uninhabited area. As per the submitted document 11, that will give you some idea how uninhabited it is. It is a collection of country subdivisions and there are hundreds of people there.

I have referred the cases of official wrongdoing to the CJC, who have informed me that they will not be taking immediate action - - -

KIRBY J: We are not concerned with what other people do. We can only concentrate on what we can do.

MR DALEY: Fair enough, but these are people that have found the behaviour of the police investigation to be worthy of - - -

KIRBY J: That is a separate question. You may have entitlements to pursue that and, if you have, you should pursue it, but that has nothing to do with us. We are really only concerned on whether there has been such a miscarriage or wrong done or error of law that warrants lifting it up to the highest Court of Australia. That is the question for us.

MR DALEY: Yes, your Honour. Thank you for bearing with me. It has taken a long time to get here. I will at least have my say today.

KIRBY J: Of course.

MR DALEY: Anyway, so the CJC felt strongly enough about it that they informed the Ethical Standards Council of the Queensland Police Service to see whether that policeman needed retraining or not. It was his evidence and his collection of evidence that got me convicted. He has been referred to the Ethical Standards Council. This is a standard - - -

KIRBY J: That again is not something we are concerned with.

MR DALEY: All right, your Honour.

KIRBY J: We are concentrating on your trial and conviction and what happened in the Court of Appeal.

MR DALEY: The only reason I am talking about these is because I perceive these to be the deficiencies in my original trial and the deficiencies in the way that the Crown went with the poor evidence that it had.

KIRBY J: But surely at the trial you pointed out that the goat had never been produced and that there were various other deficiencies, the fact that you had had the fight with your neighbours, no ballistic tests were taken. All of these things were pointed out.

MR DALEY: Excuse me, your Honour, I had never had a fight with my neighbours. I have always been victimised by these people. I am the victim - - -

KIRBY J: Very well, but there was animosity. All of those things were brought to the notice of the jury.

MR DALEY: I am the victim of a country gang of people. A country gang of criminals have set me up for a crime I did not do. Now, that is the background. In summary, these deficiencies include inconsistent evidence. These people could not even keep their stories straight in court, and that was accepted by the judge and the jury. I determine that to be unsafe and unsatisfactory and unreasonable, your Honours. No forensic tests were done at any stage. These people just gave pellets to the police. The police accepted that as proof without even testing them. As per other documents, that even caused the Crown Prosecutor's concern because no doubt they liked to go with proper evidence.

The eyewitnesses against me were a husband and wife team submitting near identical statements. Once again, this was accepted by the judge and the jury. Once again, I claim that to be an unreasonable behaviour. I was treated unreasonably in that original trial. Also, there was a non-procedural police investigation. They just accepted what these people told them as the truth. The courts so far have chosen to ignore the multiple deficiencies of the Crown's case. These same deficiencies do not need to be disregarded again, as they are still crucial in revealing the truth of this matter.

New evidence has been made available to me that I know we cannot deal with here. I have had concerned members of the community come up and present me with statements saying where these people got the pellets from. These people have gone somewhere else and got the pellets off people, come back, given them to the police. I have evidence here now that I cannot submit to this Court. This new evidence clearly reveals how the two complainants maliciously concocted their so-called proof.

For this appeal we are restricted to the original evidence provided by antagonistic neighbours and an unprofessional police investigation. The word-for-word nature of the statements are indications of collusive behaviour. The lack of a goat carcass is ludicrous. Giving pellets to the police is very convenient for the complainants but not proof without forensic tests. Once again, the Crown decided to go with that evidence. I consider that to be unreasonable. As stated by the Supreme Court in its reasons for judgment at page 21 of my summary of argument, page 3 of the Supreme Court's reasons for judgment, paragraph 6, they state:

The risk of a wrong result.....lay in possible untruthfulness on the part of the complainants -

My summary of argument outlines the degree of untruthfulness that the complainants have lowered themselves to. The applicant has never stated that he has antagonism towards the complainants. However, Mr Burgess admitted in the trial that there was bad blood between himself and the applicant. This in no way should be seen as an admission by the applicant, who gave no evidence at the trial due to the nature of the collection of untruths arrayed against me. Even though no admission was made by me at the trial, I was then made to appear to be equally antagonistic by the summing up of the learned judge in his referral to a double-edged sword on page 10, lines 10 to 15 of my summary of argument.

Legal Aid's advice was that the Crown's case was very weak and full of holes. These holes are the deficiencies I am attempting to clarify for you. I have found this whole experience overwhelming and unjust in the extreme. To have experienced the inability of the previous courts to determine the truth has been very unsettling. Since Legal Aid decided not to pursue my acquittal, I have felt victimised by a system seemingly incapable of accepting my innocence. To read the Supreme Court judge's reasons for judgment in defence of the poor evidence and collusive behaviour of my complainants has seriously eroded my faith in our justice system. The array of misconduct and plethora of trickery which has convicted me of this admittedly relatively minor offence has at no time appeared just or reasonable. More, that I have been the victim initially of my complainants who are hostile and perjurous neighbours and now - - -

KIRBY J: Wait a moment. I do not think I can allow you to make allegations against people who are not here to defend themselves. You have done it before. I have warned you about it. It is not fair and you should see that it is not fair.

MR DALEY: Okay.

KIRBY J: If you are complaining of unfairness to you, you have to deliver fairness to other people.

MR DALEY: Yes, your Honour, I see that. Now I feel more recently I have been a victim of a justice system which has lent its support to my antagonists. I have been punished for something I have not done. The system of justice has in this case so far convicted an innocent man. It has also misguidedly supported and encouraged the criminal behaviour of my co-accusers. These accusers are known in my area - sorry, I cannot refer to their bad reputation in my area that the previous policeman actually told me about.

KIRBY J: I have to say if you go on about this, I am going to have to stop you because you cannot use a proceeding in a court of law to defame people who are not parties to the case and are not present to answer. Is there anything else that you want to say that is not of that kind?

MR DALEY: No, I am nearly finished here, your Honour.

KIRBY J: Very well, you finish what you have to say, but nothing along those lines, please.

MR DALEY: Okay, I will try and be more careful there. My conviction on their evidence has been a farce. Since the Bundaberg jury found me guilty in the obscenely short time of 22 minutes on a Friday afternoon, my co-accusers have continued their vendetta against me. Fortunately, many people from my community have come forward to support me in this appeal against my conviction. I now have several statements from other members of my community which detail the extent of the conspiracy of lies against me. The naivety of the local policeman, who was new to the area when I was charged, has assisted the complainants, who are well known to the police.

I realise your judgments can only be based on any wrongful procedure or point of law during my original trial. Not being a barrister or Queen's Counsel, I have little experience of law or the courts, for that matter. However, the points of personal justice I raise can hopefully be understood from the common language I use. I have been set up by the criminals who live on the next door property to me. Poor police work assisted them in their framing. My explanations and claims of innocence have so far fallen on deaf ears. Please give me the benefit of your intelligence and experience to break free of this wrongful conviction. Thank you.

KIRBY J: Thank you, Mr Daley. Mr Byrne, there are three matters that are of concern. No 1, the applicant says that he only saw his barrister 20 minutes before the trial. No 2, no goat was ever produced. No 3, no forensic tests were taken on the pellets that were produced. What does the Crown say about those matters?

MR BYRNE: In respect to the latter two issues, that is quite correct. No issue is taken. There were no forensic tests carried out on the pellets and no carcass of a goat was ever produced.

KIRBY J: It is an odd - - -

HAYNE J: The investigation seems to have been of a kind that was regarded by the applicant as wholly inadequate. The taking of statements where you even reproduce the spelling mistakes in one statement over to the other is not such as engenders great confidence in the result, is it, Mr Byrne?

MR BYRNE: That is accepted, of course, your Honour, and that point was made forcefully at trial to the extent, as I recall it, that the statements of both the complainants were provided to the jury so that they could appreciate that point. It was quite properly and forcefully made to the jury. I accept your Honour's criticism of that but it was a factor which was properly laid out for the jury's consideration.

KIRBY J: But if the accused then has counsel of equivalent experience and devotion, as one assumes the Crown produces to prosecute, then you might well be able to have a fair trial. But the complaint that has been put to us is that because he only saw his counsel 20 minutes before, that he did not really have his case put properly to the jury.

MR BYRNE: Your Honour, I cannot answer the specific question as to how long before the trial he saw his counsel.

KIRBY J: Was that raised in the Court of Appeal, do you know? Was the complaint about access to counsel before the hearing raised in the Court of Appeal or not?

MR BYRNE: If your Honour will bear with me for a moment. I do not recall that appearing in the judgment but I should be able to pick it up if it was.

KIRBY J: There is just a slight sense of disquiet that one is left with that there were points in this which experienced counsel applying forensic skills could have really mounted a devastating attack on the case of the Crown. No goat, pellets but no forensic tests, and a history of animosity between the complainants and the accused.

MR BYRNE: And counsel did raise, your Honour, all of those points. Counsel was of some experience. There is no direct criticism of the way the trial was conducted, as I understand it, apart from the advice given by counsel that the applicant should not give evidence and, secondly, the length of time that there was available for conference prior to trial. I cannot, as I have said, deal with the latter of those points, but on the first, there was no criticism made of that in the Court of Appeal.

HAYNE J: Can I put it to you this way, Mr Byrne. We have an applicant who has very obviously a very considerable sense of grievance which he says is founded in what to his eyes was the inadequate investigation of the events which led to the charge brought against him and what he says was inadequate representation of him at his trial. What do you say we should do in those circumstances?

MR BYRNE: The response is that neither of those matters is really made out on the material before your Honours. If there was that sense of grievance, it should have been litigated by using proper material before the intermediate Court of Appeal or, alternatively, if there is, as asserted by the applicant today and in the papers which he has filed, substantial fresh material, then there is provision under the Criminal Practice Rules and the Criminal Code for that to be referred back to the Court of Appeal for their consideration. Those matters are not matters which on the material before this Court can be resolved one way or another.

KIRBY J: How is that referred back? What is the procedure for that?

MR BYRNE: There is provision under the Criminal Code for a petition to be made to the Governor by way of practice, that is referred to the Crown Solicitor and his advice is taken and it is a question then for the Attorney whether the matter causes sufficient disquiet for the matter to be referred back for review by the Court of Appeal. If that is done, then it is handled as if an appeal, including all the new material.

KIRBY J: Yes. Is there anything else that you wish to say?

MR BYRNE: No thank you, your Honours.

KIRBY J: Is there anything you want to say, Mr Daley, in reply to what Mr Byrne has said?

MR DALEY: Just to make a short statement, your Honours, just a short statement about the fact that the original appeal in the Supreme Court, I never met my barrister for that one. I had one phone conversation of about 15 minutes and that was it. I pressed for things that they did not want to include. Legal Aid at the time appeared highly stressed and overworked and did not appear to have time to deal with my case properly, your Honours. Thank you, your Honours.

KIRBY J: The applicant complains that the evidence upon which he was convicted of unlawfully killing a neighbour's goat was insufficient to demonstrate his guilt of that offence.

During his submissions before this Court the applicant has made some very telling criticisms of the evidence that was proffered against him. He has also complained about the representation which he received, both at his trial and in the Court of Appeal. However, so far as the trial was concerned, the questions raised by the applicant were agitated before the jury and were questions for the jury to resolve.

The questions that have been presented to the Court today raise no point warranting the grant of special leave to appeal to this Court. However, the applicant may have other remedies by which to pursue his assertion of innocence. It will be open to him to consider and, if he decides to do so, to pursue such remedies. The extension of time which the applicant sought is granted to him. However, special leave must be refused.

AT 12.31 PM THE MATTER WAS CONCLUDED