Puckeridge v The Queen S167/2000 [2001] HCATrans 356 (10 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S167 of 2000

B e t w e e n -

ROY ROBERT PUCKERIDGE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 AUGUST 2001, AT 2.20 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR G.P. CRADDOCK. (instructed by Catherine Hunter)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, your Honour Justice Hayne may be familiar with this case but I am not sure that your Honour the Chief Justice is. It has been to this Court before. We were the respondent to an appeal by our learned friend following an acquittal by the Court of Criminal Appeal. It went back on some undealt with points to a differently constituted Court of Criminal Appeal and the appeal was dismissed and so we are back here on the balance of the points as the applicant.

Before I come to the directions on causation, which were at the centre of the argument put in the Court of Criminal Appeal, there were grounds of appeal in the Court of Criminal Appeal directed to the onus and standard of proof and that, obviously, is very much related to the complaint about the directions given by the trial judge in this case.

GLEESON CJ: I suppose the starting point is the actual evidence of Dr Collins, is it not?

MR GAME: Yes, your Honour.

GLEESON CJ: Which seems to have been directed, as I understand it - correct me if I am wrong - to looking at the question of the pathological possibilities that were left available after the decomposition.

MR GAME: Yes. But, your Honour, remembering this, that the directions on causation were given in terms of the way in which the pathologists addressed the question of causation rather than in terms of, as it were, bringing together a large circumstantial case and saying that that is how causation was sustained.

If I could say this, your Honour, what Dr Collins is saying is this. There were 50 millilitres of blood found in the cranial area. There was a history of aneurysm. The largest single cause of aneurysm bursting is spontaneous. You cannot say what caused the aneurysm to break and it is quite possible that the aneurysm - - -

HAYNE J: You cannot say, or he could not say on what he observed from the post-mortem of this body?

MR GAME: That is true, your Honour, but that is very much the same as the evidence of Dr Ellis, although there were distinctions. What Dr Collins said in clear terms was that you cannot say - it is impossible to give trauma as a cause of death unless other significant natural disease processes have been excluded and that is at - - -

GLEESON CJ: Yes, on page 42 at line 5 he said he was not able to exclude "myocarditis" as being the cause of death.

MR GAME: But there were things that he was able to exclude, for example, anoxial injury.

GLEESON CJ: Presumably he was able to exclude some things because the state of decomposition of the body did not prevent him being unable to exclude them. I have assumed that that is why he was able to exclude coronary occlusion.

MR GAME: But, your Honour, the evidence is not quite as weak as that because it was fairly clear, and this was not because of the advance decomposition of the body, that there was no evidence to support the proposition of suffocation and you would have seen signs of that, no evidence to support the smashed windpipe, no evidence to support the lacerations and no fractured or breaking of the legs.

Now, what that means is that you have a solid foundation in the pathologist's evidence for, as it were, meeting the extreme versions of the facts that were put by various witnesses so you may have well had open a circumstance where there was an assault. The jury were unable to be satisfied as to the nature or extent of it, and then sometime after that, death. So you have a breaking of the nexus between the assault and the time of death, which builds up the hypothesis with respect to the bursting aneurysm.

Now, there is nothing, in our submission, in the suggestion that Dr Collins was not positing these as reasonable hypotheses but he is talking as a doctor and he is talking in terms of rational hypotheses but I will come to that in - - -

HAYNE J: Well, let us understand this point.

MR GAME: I was proposing to come to it in a minute but I am happy to give it to you now.

HAYNE J: You go on.

MR GAME: What I wanted to do, actually, was to come to that in a minute but just take you to two passages in the summing up quite a lot earlier that have not been the focus of any attention at any time as far as I am aware - this is at page 102 - because, in my submission, there really is a problem here about directions in circumstantial evidence cases and with respect to causation when you use a particular formulation that departs from the time honoured "beyond reasonable doubt". If you look at 102 it says, at about line 30:

Since you cannot find a person guilty of a crime unless you are satisfied beyond reasonable doubt that he is guilty, you cannot draw an inference of guilt unless the facts that you accept point clearly to guilt, so clearly they cannot be explained reasonably in any other way.

Now, there is a problem with that and it is both an onus and a standard problem because somebody may give an explanation which is not a reasonable explanation. That is no way that you are saying that you are satisfied beyond reasonable doubt that that is a false explanation.

GLEESON CJ: You were not suggesting the judge should have directed them in terms of hypothesis?

MR GAME: No, your Honour, but the judge should have directed them in terms of guilt being the only rational inference. What has to be inconsistent with any other rational conclusion than guilt and that is the time-honoured direction on circumstantial evidence.

HAYNE J: This is a point, is it, that has not hitherto been taken?

MR GAME: Your Honour, there is a ground of appeal that the directions on onus and standard of proof were wrong. What I am saying, this point - nobody has focused on this but what I am saying - - -

GLEESON CJ: Was there an objection to this at the trial?

MR GAME: No, your Honour, but can I say this? This all relates to what comes later because it is part of the same way of approaching this question of onus and standard. Now, if one goes back three pages to 98:

So summing up on that: if the proven facts can be reasonably explained in a way which is consistent with the accused not being guilty, then you should find him not guilty.

Now, there is an onus and standard problem with that and it is the same problem.

Just to give you a simple example, one's child.....give an explanation for losing their bus money, which is in no sense a reasonable explanation but you would not be satisfied that they were lying beyond reasonable doubt and that is a way that a jury would approach this. Is there a reasonable explanation. It is a totally different question.

Things get worse when we come to the directions on causation and, indeed, there is clear distinction between rational and reasonable and we are in all sorts of strife, in our submission, with the directions that appear at page 289, remembering that - - -

GLEESON CJ: At that stage the jury would have been relating what was said back to what was said on page 102.

MR GAME: I am saying it is all part of the same theme, your Honour.

GLEESON CJ: Did you say 269 or 289, your Honour?

MR GAME: Page 289, sorry, your Honour. But remembering that back in Hodge's Case and Peacock and reflected also in Shepherd the question was whether or not - one excluded whether or not the only rational inference was one of guilt. But what has happened through the cases, Plomp, Knight and other cases is this notion of reasonable explanation or reasonable possibility is sneaked into the formulation and what has happened now is we have directions that really create a problem with both onus and standard.

GLEESON CJ: Where was this body buried?

MR GAME: In the back garden.

GLEESON CJ: Thank you.

MR GAME: But, your Honour, those directions I just took you to are directions about the whole case. They are not just directions about causation. If one then comes to 289, line 30, there are the three possibilities of death posited:

If you think that it was a reasonable possibility -

Well, it is not really a question of "if you think". It does not have to be raised to that point. There is an onus problem there but it is not necessarily a strong problem. But then one comes to line 40:

Has the Crown eliminated the reasonable possibility that death resulted from natural causes or spontaneous rupture or epilepsy unassociated with the actions of the accused and/or Campbell. Almost anything is possible.

GLEESON CJ: Now at this stage they are being invited to consider that the evidence established that what are described as "the actions of the accused and/or Campbell" took place and they are asking themselves whether the death was unassociated with those actions.

MR GAME: That is right.

GLEESON CJ: What was the defence case?

MR GAME: The defence case may or may not impact at this point, but the defence case was that Campbell did the killing. But the jury may well have been satisfied - as I said, that was why I picked up those references before to - - -

GLEESON CJ: So the judge is here covering the various bases. He is directing them on something that was not really part of the defence case.

MR GAME: Your Honour, it was put as a proposition on causation and it is clear from counsel's objections that he was very concerned about these directions. But you might get this out of one version of the Crown case rather than out of the defence case. Now:

Almost anything is possible. That is why I have emphasised the word "reasonable".

Now, this is the Green v The Queen problem of severing reasonable from doubt, saying something has to be reasonable, and the Court made it absolutely plain in Green and it has been followed since in almost every case that it is not a question of the jury examining their own interstices of their mind to examine whether or not possibilities are reasonable. But moreover, this is an incorrect direction if one couches it in terms of the only rational inference must be guilt.

Now, if I can give your Honours another example. You might have said last Friday that there was no reasonable possibility that Fremantle would beat Hawthorn, but they did and it was completely rational. They are professional footballers. They go and train twice a week and they mark - - -

HAYNE J: You really are pushing the limits of credulity now, Mr Game.

MR GAME: I really put that one for your Honour.

HAYNE J: Yes.

MR GAME: I do not barrack for either of them.

HAYNE J: Nor do I.

MR GAME: But in terms of the burden of proof it is quite critical. You cannot put the burden of proof in terms of identifying possibilities and then saying they have to be reasonable before the defence, as it were, has raised an evidentiary onus, that is an onus problem, to this standard of reasonable possibility. It is wrong. Then the next proposition is:

The Crown does not have to eliminate something that is merely possible.

Well, they do if it is rational and Dr Collins speaks as a rationalist.

GLEESON CJ: Take the possibility adverted to on the top of page 42 of myocarditis. Now, there was not any evidence to suggest that this lady had ever suffered a condition of myocarditis but Dr Collins is saying it is not impossible that, while these men were attacking her, she died from myocarditis and then when they took her out and buried her in the garden it was because they felt a sense of guilt because they did not know that she had died from myocarditis.

MR GAME: That is true, your Honour, but there were other particular hypotheses that we said could be excluded, for example, anoxial injury, so he has obviously drawn a distinction between some things and others.

GLEESON CJ: Yes, but myocarditis is perhaps a good example because of the immediately preceding question. He said he could exclude the possibility that she died from "hardening of the coronary arteries" and I have assumed that was because the coronary arteries were sufficiently intact following the decomposition to enable him to exclude that. Now, the fact that he says he can exclude hardening of the arteries, but he cannot exclude myocarditis, is eloquent, is it not, as to the nature of the exercise that he is engaged on. What he is saying is, from a post-mortem examination of a decomposed body, "I can exclude some things and I can't exclude others".

MR GAME: That may be so, but the evidence in relation to - - -

GLEESON CJ: I mean, I suppose it is possible she died of old age during the course of this attack.

MR GAME: Your Honour, that is true, but the propositions put forward in relation to a burst aneurysm stood in an entirely different category. It was far stronger because of the presence of 50 millilitres of blood in the brain cavity and because of the fact that by far the predominant cause of burst aneurysms is their spontaneous bursting, coupled with the fact that on a particular version of the Crown case you could not say when death occurred. So, in my submission, it is not an answer to, as it were, extract a particular question and then say, "See, that shows that the doctor's just talking fanciful hypotheses". He was not.

GLEESON CJ: It is not fanciful. It is hypotheses related to the physical examination of the body post-mortem.

HAYNE J: The doctor is sticking very carefully to what he can say. "I can tell you not this, not this. I cannot tell you not A to Z."

MR GAME: That is true, but, your Honour, that may be so. But the directions that are given about it still misplace the - it is for the jury to assess whether what he said about myocarditis should be put to one side or whether what he said about burst aneurysms should be taken on board. It was not for the judge to say, "You have to distinguish between mere possibilities and reasonable possibilities and - - -

HAYNE J: Let it be assumed that the body had been left still longer and the doctor, on examination post-mortem, could find very little that explained anything about the cause of death. The accused could still properly have been convicted of murder, could he not?

MR GAME: Yes, absolutely, your Honour, but these directions would still be wrong. But there is something stronger in this case and that something stronger, and it comes in from Dr Ellis' evidence, is that you would expect to see signs of suffocation, you would expect to see signs of a broken windpipe, you would expect to see lacerations and there was no evidence of any of them. So that cuts down to that degree the evidence of the Crown witnesses so you have a much less clear picture - - -

HAYNE J: On their more florid versions of the attack.

MR GAME: Yes. You have a much less clear picture of how extreme the assault was and so that breaks down substantially, in our submission, necessary conclusions that you can draw about the time and that piece of evidence of Dr Ellis about the amazing coincidence. He prefaced that with assuming that they occurred at the same time and that is the connection that we seek to sever. Coupled with it - I mentioned this more than once already - coupled with the fact that by far the largest cause of rupturing of aneurysms is spontaneous rupture.

But even if all the things that your Honours are putting to me are correct, it still does not call for directions of this kind and these directions are contrary to the proper directions, both in terms of burden of proof and in terms of circumstantial evidence. They have an effect both on onus and standard. Then he goes on to say:

Dr Collins does not say spontaneous death or death from unassociated causes was a reasonable possibility -

so here we have the defence having to establish a reasonable possibility -

so he does not raise any issue that it was.

Now, it is put in the Court of Criminal Appeal that that was just a comment in Dr Collins' evidence, but the judge did not think so. The judge said, in an exchange - and if I could just refer you to 318 at line 35:

But unless the medical evidence is going to come forward and put them in a category other than possibilities, that is to say, move them into the reasonable possibility area, then the Crown doesn't have the obligation of calling evidence to meet that and to eliminate it or at least create a basis founded upon medical evidence -

Now, there is no such onus on the defence and it is not to the standard of a reasonable possibility and it is doubtful whether or not Dr Collins could have even spoken in terms of reasonable possibilities. That is not the language of a doctor giving evidence. That is the language of a doctor giving an account tailored to fit the direction on burden of proof.

GLEESON CJ: I would not have regarded any of this as a criticism of Dr Collins. It is just drawing attention to the limits of his expertise.

HAYNE J: And the data before him.

MR GAME: Yes, that may be so, but the directions go substantially further than that and the directions have the problems that we have sought to identify with them. The same directions were then given again at page 368.

GLEESON CJ: So, if we have a reserved judgment in a case in which experts were criticised on the basis that they went further than merely describing the conclusions that must be drawn from examination - - -

MR GAME: Yes. In this case the judge thinks and the defence have to put it and give evidence that pushes it into the reasonable possibility area before the Crown has any onus to meet it. That is what he says at page 318 and he said the same thing at 316, line 1:

What I have said is that he did not say they were reasonable possibilities and that is the distinction that you must draw if you wish to impose upon the Crown the obligation of eliminating -

suggesting that that is the very thing the doctor did have to do before the Crown had an onus. So we would suggest that the directions had the very effect that the judge intended that they have, which is borne out by those two passages which I have just read.

GLEESON CJ: Yes, thank you, Mr Game.

MR GAME: Sorry, can I just say one thing more?

GLEESON CJ: Yes.

MR GAME: They are given again at 368 to 369 and then at 388 they are given to the jury in a written form, that is to say he has extracted a transcript of them and they are given to them in a written form. If the Court pleases.

GLEESON CJ: Thank you. We do not need to hear you, Mr Blackmore.

In this case the Court is not persuaded that it is arguable that there has been a miscarriage of justice on the grounds contended for by counsel for the applicant and the application will be dismissed.

MR GAME: If the Court pleases.

AT 2.42 PM THE MATTER WAS CONCLUDED