Knight v The Queen S109/2001 [2002] HCATrans 81 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S109 of 2001

B e t w e e n -

JOHN ADRIAN KNIGHT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002, AT 10.00 AM

Copyright in the High Court of Australia

MR S.C. CHURCHES: If it please the Court, I appear for the applicant in this matter. (instructed by Alex Lee)

MR A.M. BLACKMORE, SC: I appear for the respondent with my learned friend, MS N.F. NOMAN. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Churches.

MR CHURCHES: If it please the Court, special leave is required in this matter for two reasons and the first is the present uncertainty over whether unfairness to an accused based in deceit should lead to the exercise of the discretion to reject evidence, and we refer the Court to Davidson's Case in the bundle of applicant's documents - - -

GUMMOW J: What is the deceit here?

MR CHURCHES: The deceit here, your Honour, is evidenced in both the handwriting form itself, the P59B form, and in the police instructions and in the knowing behaviour of the police in drawing on suspects to fill out the form, giving the impression to the suspects that what is required is their mother's maiden name, the colour of their hair or whatever, when in fact the police well know that what is going on here is the obtaining of the sample of handwriting.

KIRBY J: Could you just clarify for my own purposes whether or not some of the - there were earlier P59B forms, were there not, that were used in this case, so it is a mixture; there were some old ones that were used?

MR CHURCHES: There were three instances, as I understand it, your Honour, and my understanding is that the form is a consistent form throughout.

KIRBY J: Yes, but could you have any objection to the use of some other document? Let us start with a document that is in the possession of the police, the motor registry form and so on? You do not raise any objection to these?

MR CHURCHES: Absolutely indeed, that is, if I may take your Honour's point, exactly at the heart of our submission to the Court that other, most obviously, governmental documents will be available to the police to use as samples of handwriting. If we could turn just briefly to Bunning v Cross, the point is made there in dicta that if other evidence is available, that diminishes the likelihood of the necessity of this, dare we say, tainted evidence going into the trial.

KIRBY J: All right, that is question 1. Question 2 is old 59B forms, that is to say, not connected with the particular - this is a regular visitor to police stations and he has filled in many old 59B forms and they are in the possession of the police. Would that use be so unfair as to require exclusion?

MR CHURCHES: Your Honour, in our submission, on what we understand of the behaviour about the P59 forms, they would always be tainted because they are always made out in police stations in interrogation situations without the caution being given to the accused. So if those are the circumstances - - -

KIRBY J: But it is a combination of the inscription at the top of it, you are required to - - -

MR CHURCHES: You are required, yes.

KIRBY J: - - - and it is the failure to give a warning or "Be careful when you fill this in, you are not actually required and if you do fill it in, it will always be in our records and we will pull it out if there is a handwriting case".

MR CHURCHES: That is right. Indeed, the instructions, your Honour, if I could take you to them, are set in the Court of Criminal Appeal judgment. The form itself is at application book 79 and the instructions are at application book 85 and 86. At 86, about line 7, you see there in bold, these are the police instructions which, of course, the constables in this case were following:

The offender must complete the section under the heading `The -

and so forth. The evidence from the police which is in application book, the two constables is to the same effect, Constable Bradley at application book 14 through to 16, Constable Bradley is asked at the very bottom of application book 15:

Q. Is that correct you gave the impression that it was a routine type thing that everybody did?

A. Possibly.

But the evidence of both constables is quite clearly to the point that they knew what the handwriting form was for, as they call it in police nomenclature, it is a handwriting form, but that is nowhere apparent on the face of the form itself.

KIRBY J: What was the significance in the facts of this case of your client's filling out of the form in terms of evidence. Were there loops or other aspects of his writing that?

MR CHURCHES: That is not apparent from the summing up. Your Honour, the learned District Court judge did refer in his summing up to the jury to the evidence of the handwriting expert and said that she made the comparison between the P59 form and the particular documents in question, but nothing more was made of the detail in that - - -

KIRBY J: Is this Judge Viney or Judge - - -?

MR CHURCHES: It is Judge Viney, your Honour, yes. Indeed, your Honour, going to this, since Justice Gummow raised the question of deceit, at application book page 17 we have the Crown Prosecutor him or herself at about line 35, this is in the submissions in the voir dire:

CROWN PROSECUTOR: Your Honour may use the evidence on the P59B forms as evidence which was obtained, perhaps not fairly in the sense that no caution was given or perhaps even improperly obtained under section 138.

Now, there is a concession from the Crown as to the unfairness of this behaviour which, of course, the Crown is submitting though may even in the light of such unfairness still allow the evidence to go into the trial. But, in our submission, the institutionalised unfairness of this behaviour is such as to attract the public interest.

KIRBY J: The Crown does not concede before this Court that it was illegally or improperly obtained?

MR CHURCHES: No, I understand that from their submissions, your Honour. So that, in our submission, the two reasons that special leave is appropriate is this public policy issue that we are now addressing, the question of the behaviour of the police in a police interrogation situation, that chilling effect of which Chief Justice Warren spoke in Miranda, and the first issue, of course, being the unfairness to the accused in this situation which was referred to by Justice Fitzgerald, then President of the Queensland Court of Appeal in Davidson. The page is set out in the bundle of applicant's documents at page 3 at the very bottom of that page, where his Honour said:

the question whether incriminating admissions obtained by deceit are voluntary and hence admissible . . . has not been authoritatively resolved.

KIRBY J: This was before Pavic and Swaffield?

MR CHURCHES: It was in December 1996, your Honour.

KIRBY J: Pavic and Swaffield was after that.

MR CHURCHES: Yes, you are quite right, your Honour, Swaffield was determined in January 1998, that is quite right. In our submission, your Honour, the institutionalised behaviour that is going on with these forms revealed both in this instance and, of course, in Browning's Case a decade ago where the form is an identical structure where the police instructions are not dissimilar would indicate that there is an institutionalised attitude to dissent or dissimulation in the process of obtaining evidence which does not reflect what this Court was getting at in Swaffield, in our submission.

KIRBY J: You make it sound as though there is a mountain of cases, but there is only the two that you have mentioned, yours and Browning.

MR CHURCHES: Well, your Honour, if this is as appears from the police instructions and the nature of the form, the standard method, the evidence of the two constables is that this is what they do, in all cases of fraud - - -

KIRBY J: What is the sequence of events? The form is filled in before any warning?

MR CHURCHES: There is, as I understand it, a generalised warning at the beginning of the interrogation, a warning which in the public mind is - - -

KIRBY J: In some people, especially people who know the system and repeat offenders, say, "Well, I am not going to say anything, I want to see a lawyer."

McHUGH J: Mr Churches, should you not really get down from these high-flown generalities and get down to the particulars. This is a question of exercise of a discretion by a trial judge and the trial judge exercised his discretion against you. Now, you have to go so far, it seems to me, as to say that no trial judge can ever admit such material.

KIRBY J: In these circumstances.

MR CHURCHES: Your Honour, in our submission, the institutionalised nature of this behaviour, not a one-off, for example, a Bunning v Cross mistake by a patrolman as to the correct order of procedure in taking a breathalyser test, this is institutionalised, it is in the police instructions of both the ACT and New South Wales, the form is a standard form, it involves police officers as a matter of course in dissimulating as to what they are doing while a person is - - -

McHUGH J: It does more than that. I mean, there are details of the accused's height, build and weight, they are all there for record purposes. This is an aspect of it, but the judge, if you look at page 24, said even if it is unfair of the police to obtain material in a particular way:

Certainly it seems to me on the limited knowledge I have of this case that the probative value of the evidence is significant -

et cetera, et cetera. So he took the view that even if there was any unfairness, it was outweighed by the probative value of it.

MR CHURCHES: Yes, in our submission, your Honour, the process of prosecution is not thwarted by the rejection of this evidence. The appeal that we seek is with a view to appropriately disciplining the behaviour so that - - -

McHUGH J: No, no, that is a mistake and it is said again and again this Court sits to decide cases and in doing so it may incidentally lay down some general propositions of law. We do not sit here to discipline the police force or anybody else for that matter. That is not the purpose of this Court's function. It may have to do so incidentally and we do not hesitate to do it in appropriate cases.

MR CHURCHES: Yes, your Honour, I take your point, but in the light of Swaffield, it would be appropriate that this Court indicate that institutionalised dissent where the evidence is available, for example, from other government records, should be dealt with so that police are not encouraged to behave in deceitful behaviour in the station.

KIRBY J: You say it is deceitful, but you accepted Justice McHugh that for most offenders the form has another purpose, it is completely innocuous, it is record-gathering information.

MR CHURCHES: No, your Honour, with respect.

KIRBY J: How many handwriting cases does one have?

MR CHURCHES: Well, your Honour, with respect - - -

KIRBY J: I have sat here for years and this is the first one I have seen.

MR CHURCHES: No, the police constables both say that as far as they are concerned - Scott Robinson begins at application book page 11, that the - - -

KIRBY J: You say this is a regular practice?

MR CHURCHES: Yes, the form is only presented to those suspects who have been dealt with on fraud cases; it is not given to all alleged offenders at all. It is given to obtain handwriting evidence in particular alleged situations. For example, at application book page 12 at about line 20:

Q. And the procedure itself that you follow in obtaining what you describe as a handwriting form, the P59B form, in what circumstances do you obtain those forms?

A. Any offence that may involve handwriting or fraud matters.

McHUGH J: Well, the policeman might say that, but that is not what the instructions say. The instructions say:

It is desirable for all offenders charged with an indictable or a serious summary offence to complete a copy of the fingerprint information form P59B in their own handwriting.

KIRBY J: Well you say that the evidence by that constable indicates that they are specially vigilant to get it in handwriting?

MR CHURCHES: Yes, it is common knowledge in the force that that is what they really want it for.

GUMMOW J: Anyhow, your argument is about construction of section 353A.

MR CHURCHES: I understand it is my friend's argument but, yes, I need to address that with some speed, your Honour. Yes, in our submission, 353A of the New South Wales Crimes Act simply has no application to this situation because it refers to a taking and it refers by way of example specifically to the taking of photos, fingerprints and palm prints. I note that those three items have been subsumed into the very recent New South Wales Crimes (Forensic Procedures) Act - - -

GUMMOW J: There is a new statute, is there?

MR CHURCHES: Yes, I am sorry; I only found it very late yesterday. It is of no consequence other than it clearly shows with a body of some 80 sections of procedure for dealing with tissue samples that are taken. It buttresses our submission, with respect, that - - -

KIRBY J: You say it is focused on an entirely different thing - - -

MR CHURCHES: That is right; 353A is about things that can be taken compulsorily and forcibly; if necessary you would hold down the subject while you took perhaps a swab, a hair sample. That is simply not physically possible with the handwriting; that is the whole point about handwriting. You cannot stand over the suspect and say, and now you will deliver your handwriting. It is just not feasible.

KIRBY J: Many a teacher has.

MR CHURCHES: Yes, but not in a police station, it will not work, and Parliament cannot legislate to make water flow up hill. Similarly, Parliament cannot legislate to force the taking of a handwriting sample; handwriting just does not fit into 353A. It is not there.

KIRBY J: So you say the statute does not apply. We are therefore in the realm of the common law, subject to the exclusions of the Evidence Act, and this basically is a trick that is especially used for fraud cases and it enlivens a discretion to exclude and where is the error of the trial judge who said, "Well if there is an error, an entitlement to exclude, I take the view that the probative value here is more valuable than the prejudice to your client."?

MR CHURCHES: Well, the error, your Honour, is revealed in the fact that he actually reflected on the possibility of obtaining the handwriting evidence from other sources and simply rejected that out of hand.

KIRBY J: But is that not that against you? It indicates the judge has addressed his mind to the alternative ways and said, "Well, this is a form. It is a form which the instructions say is available for use in every prisoner. A general warning has been given." Notwithstanding that, your client filled in the form; he had filled in earlier forms. They were all available and in these circumstances to exclude them would be contrary to the justice of the case. The unfairness is overwhelmed by the probative value.

GUMMOW J: What you really have to do is to try and conjure some particular rule out of 138 for some species of cases in which discretions are to be exercised. That is not a very attractive process, I think.

MR CHURCHES: Well, I note the trial judge in the summing up in the voir dire, or his ruling in the voir dire, application book 24, down the bottom of that page, just above line 50:

Next whether it was deliberate or reckless -

this is the giving of the P59 form -

well it was deliberate in the sense that the officer followed instructions to have the accused fill in the form, but I do not think it is the sort of case where there is the pejorative nature of such conduct.

In our submission, that is a wrong reference, a wrong finding, with respect to this institutionalised behaviour.

KIRBY J: You have said everything that can be said, have you not?

MR CHURCHES: I am just checking my notes, the yellow having gone on, your Honour.

KIRBY J: You do not want to feel obliged to use up every second of time. We are always grateful for little snippets where saved.

MR CHURCHES: Your Honour, only in summary to note that this Court relied extensively in Swaffield on what Justice McLachlin said in the Canadian Supreme Court in the case of Hebert.

GUMMOW J: Now, wait a minute. Swaffield was a Queensland case, was it not?

MR CHURCHES: Indeed, your Honour.

GUMMOW J: Yes, and we are construing 138 of the Evidence Act, is that not right?

MR CHURCHES: Indeed, your Honour, but I think that the commentary in Swaffield referring back to Hebert on operating mind is still an important general point.

GUMMOW J: That may be so, but why always go to the case and never to the section? We sit here saying it over and over again and nothing seems to change.

KIRBY J: Barristers hate statutes. They love the common law.

GUMMOW J: They love cases.

MR CHURCHES: I think, your Honours, that the discretion in the Evidence Act is still to be construed in terms that may be by reference to the cases.

KIRBY J: What is your proposition, that where you are looking at unfairness and where there is some institutional behaviour which lies behind the alleged unfair conduct it is relevant to take that into account in exercising - - -?

MR CHURCHES: Well, the key word in sections 138 and 139 of the Evidence Act is "improper" or "impropriety" we would draw from that and it is our submission that it is the impropriety - - -

KIRBY J: You say that answer by the constable that they always drag out that form, "Where's the P56 form?".

MR CHURCHES: P59 form, that is right.

KIRBY J: "We've got to get that for" - - -

MR CHURCHES: "We've got a fraudster here. Let's whack the form in front of him."

KIRBY J: You say that is unfair?

MR CHURCHES: Yes, "And we'll give it to him", with the suggestion in the air always that, "Fill this out" - - -

KIRBY J: It is innocuous.

MR CHURCHES: Yes, "It is compulsory and it is just so we can get your hair colour and your height." And that goes to the impropriety in the Evidence Act provisions. Your Honours, unless there is anything further, they are our submissions.

McHUGH J: Thank you, Mr Churches. Yes, we need not hear you, Mr Blackmore.

Having regard to the reasons of the trial judge in which he directed his mind to the question of unfairness and weighed that consideration against the probative value of the evidence, the Court is of the opinion that this application has insufficient prospects of success on an appeal to warrant the grant of special leave. Accordingly, the application is refused.

KIRBY J: You had a straight run, Mr Blackmore.

McHUGH J: The Court will now adjourn to reconstitute.

AT 10.21 AM THE MATTER WAS CONCLUDED