Griffith v The Queen, Cole v The Queen [2005] HCATrans 167 (21 March 2005)

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Griffith v The Queen, Cole v The Queen [2005] HCATrans 167 (21 March 2005)

Last Updated: 31 March 2005

[2005] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B28 of 2004

B e t w e e n -

BRETT RANDALL GRIFFITH

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Brisbane No B27 of 2004

B e t w e e n -

JOHN COLE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT

Copyright in the High Court of Australia

__________________

MR P.E. SMITH: If the Court pleases, I appear for the applicant Griffith. (Instructed by A.W. Bale & Son)

MR A.J. KIMMINS: May it please the Court, I appear on behalf of the applicant Cole. (instructed by Price & Roobottom)

MRS L.J. CLARE: If the Court pleases, I appear for the respondent in each case. (instructed by Director of Public Prosecutions (Queensland))

KIRBY J: We realise that there are different issues in the cases but they arise out of the same event. Is it convenient that we deal with them seriatim and hear the applicants seriatim before calling on the Crown?

MR KIMMINS: Yes, I am happy with that, your Honour.

KIRBY J: Yes, very well. Yes, Mr Smith.

MR SMITH: Your Honour, it was once thought that the police would not tamper with or plant evidence but the authority of Lisoff, to which I make reference in my submissions, shows that since the Royal Commission in New South Wales there is nothing inherently fantastic and we put it on that proposition.

KIRBY J: No, not at all. I think you can take it we are mildly alert to that proposition with which you begin your submissions.

MR SMITH: Thank you, your Honour.

KIRBY J: Is the tampering in your case the balaclava?

MR SMITH: That is it, your Honour.

KIRBY J: And the balaclava had the encrustation from which was retrieved the saliva?

MR SMITH: That is what we would understand.

KIRBY J: And the saliva was of a quantity which the expert said, and not contradicted below, I think, that it had quite a significant sample of saliva, considerably more than the very small sample that police could have obtained from the two or three cotton balls?

MR SMITH: She did say that, your Honour, although was not certain about that evidence.

HAYNE J: We are talking several millilitres of saliva on the balaclava to leave the stains, are we not? Is that not the evidence?

MR SMITH: Yes, but she was not certain about that and was in effect guessing at that, your Honour.

HAYNE J: And we have at best, from your point of view, a couple of cotton balls?

MR SMITH: We have two cotton balls.

HAYNE J: At best.

MR SMITH: That is true.

KIRBY J: So your theory has to be, and correct me if I am wrong, if there is some other theory, that the saliva sample was planted on the balaclava from the material provided in the cotton balls which does not seem to square with the evidence that the sample of the saliva was a significant encrustation?

MR SMITH: That would be one conclusion from Ms Bentley’s evidence, a conclusion bearing in mind the onus and standard of proof where she makes the concession that she was not certain about how much material would be required to leave that stain but the conclusion we would seek to have is that there was a reasonable doubt, at least, about that issue and because no witness said that they saw this obvious stain when the balaclava was first seized and taken to the police station and that stain became apparent for the first time, on the evidence, at the John Tonge Centre, our case would be at the least there is a reasonable doubt about that proposition.

KIRBY J: If you could overcome the cotton balls I would agree with you because your case has to have the theory that somebody else somehow got saliva from the applicant. You can have all the defects in the world over the handling of the physical property and you make some telling points about that and if there is a real issue, then my own view would be sympathetic to the obligation to give the McKinney direction but the McKinney direction point hangs on the establishment of the factual premise and the factual premise does not seem to jell – if I can use that verb – with the alternative theory for the source of the saliva.

MR SMITH: I obviously accept the force of your Honour’s observations in this regard but can I respond in this way. Firstly, I was not trial counsel but, as I understand the situation, the evidence about the amount of material needed to leave the stain was ad hoc opinion evidence in the sense that it had not been raised earlier but no objection was taken at the time. I accept that.

Secondly, in the reply that I rely upon, Officer Stephens said that at least two cotton ball swabs were taken. The solicitors for my client wrote to the police asking for preservation of the videotaping of this process. They were first advised that the tape was secured and placed on the desk at the Southport police station and then for the first time, it seems, at trial a witness was produced saying there was no tape of this process, so the defence was left in a difficult position in that regard.

Ms Bentley’s evidence was at best equivocal. She said it was hard to say how much saliva would cause the stain – probably a couple of millilitres, bearing in mind the standard of proof, your Honour. It was not possible to be exact. She did not test the stain so she could not say what the material was. It is only a guess to say that a couple of millilitres is needed.

So, to answer your Honour’s points, it cannot be said positively that the swabs in this instance would not have left DNA on that part of the stain on the balaclava, or that cannot be shown beyond reasonable doubt to be the case. There at the least is a reasonable doubt about it. In those circumstances, bearing in mind the very unusual handling of the exhibit, in this instance, a McKinney-type direction was required.

KIRBY J: But your client would have had access to the balaclava itself for forensic examination, presumably, under proper conditions?

MR SMITH: I think a report has been obtained since the event but is not admissible here, of course.

KIRBY J: But in terms of that, before the trial your client would have had access in order to check what the forensic expert for the prosecution had contended.

MR SMITH: Except, though, the evidence about the millilitres was ad hoc opinion evidence. There was nothing in the statement from Bentley about that. It came out at the trial.

KIRBY J: It came out as a result, no doubt, of the way that criticism had been made of the handling of the physical object?

MR SMITH: I do not know whether it was evidence given specifically in response to those propositions put by defence counsel. She was called at page 400 of the transcript, so that was some distance into the trial and it was led by the prosecutor as part of her evidence, but, as I say, it was ad hoc at that stage. It was not a situation where my clients could have, prior to her evidence, obtained a report to rebut that specific evidence that she gave.

Admittedly, no adjournment was sought at that stage for such testing to be done but, I suppose my main point is that there was a reasonable doubt about how much saliva would cause this DNA on the balaclava, not that it would cause the whole stain but it might cause DNA in the stain on the balaclava. In those circumstances, a direction was called for in light of the very unusual handling of the balaclava and the loss of the saliva samples in this instance, your Honour.

KIRBY J: There was a lot of evidence that tended to implicate your client in the offence?

MR SMITH: There were a number of offences. Probably the one in respect of which we have most complained is the attempted murder.

KIRBY J: Yes, but they all happened within minutes, did they?

MR SMITH: Yes, but - - -

KIRBY J: There was the robbery – three robberies.

MR SMITH: But to be guilty of the attempted murder we, in effect, had to be at the same robbery.

HAYNE J: You were close by. That was the admitted position, was it not?

MR SMITH: The admitted position was that “we were walking with our daughter” near the Nerang State School and it would have been very difficult, indeed, for my client to get from that position to Mount Street where he was taking his daughter home - it was about 12 to 15 minutes walk away - and then get changed from his stubbies and shirt into the robber’s gear to get to the scene of the robbery.

HAYNE J: But there was the difficulty of the finding of ammunition.

MR SMITH: That is true, but - - -

HAYNE J: The difficulty about the purchase of the gloves.

MR SMITH: Could I address each of those two points? Really, the only direct evidence or strong evidence about my client’s presence at the scene of the robbery itself was the balaclava evidence because the balaclava was found in the getaway car up Old Coach Road. I do not know whether you know the Gold Coast, or not. It is in the hinterland area of the Gold Coast.

Without that balaclava evidence, yes, it is true that there were gloves and a receipt found at Mount Street, but there was significant challenge to that because a police officer’s fingerprints appeared on that receipt and there were inconsistent descriptions as to where that receipt was located in the house. On the guns and the ammunition found under the nuts near the palm tree in the backyard, Mr Cole, himself, admitted having contact with these premises. The point I was really going to make is that - - -

KIRBY J: What about the diamond testing kit and scanner in the kitchen? Diamond testing kits are not things that most people have in their kitchens.

MR SMITH: No, of course not, but the point I was going to make, your Honour, was this, is that at worst for my client, removing the balaclava from evidence, he might have, at worst – and I do not make this concession because he denied at all material times even being involved in the robberies, but he might have been involved with the robberies as a party but the attempted murder is another issue, again, because to be guilty of that one really had to be at the scene. The only evidence really, directly, if I can use that expression, which puts it on the scene is the balaclava with the DNA on it.

KIRBY J: There were three robbers seen at the scene.

MR SMITH: There was some dispute about that between the witnesses, but assume for the moment that there might have been three robbers, your Honour, the DNA of two other people was found in one or more of the getaway cars. Secondly, there were witnesses who saw the people the Crown would ask the jury to infer were the robbers, Ms Lazarovic and Ms Gleeson. They both saw a photographic board of my client and did not recognise him from those photographic boards and the description they gave of the robbers in the cars when they saw the robbers is inconsistent with my client’s description.

Analysing all of these matters I have raised before your Honour, there, at the least, is a reasonable doubt about this ad hoc opinion evidence from Ms Bentley about how much saliva would cause the DNA sample. Without that direction, my client has lost a fair chance of acquittal on at least the attempted murder charge because the other evidence would tend to suggest he was not at the scene of the robbery. He might have had a case to answer, perhaps, in respect of the robbery counts, but not the attempted murder. I wanted to persuade your Honours the Court of Appeal made an error in its decision here.

If I can take your Honours to page 90 of the application book, paragraph [39] of the Court of Appeal’s decision, there was reference to this case of Sultana and Green and that relevant quotation - - -

KIRBY J: Yes, but again, all of this depends upon the two buds, the cotton balls, because unless you can establish that as a premise there is no need to consider the McKinney, Sultana line of territory. You have to get up on that, is that not correct? Correct me if I am wrong. Sultana says that if there is evidence of a significant fact tending to establish guilt, that it rests on a single witness, uncorroborated, the jury should have the McKinney-type direction, but if you have a balaclava with what the forensic expert would regard as a truly beautiful piece of encrustation of saliva which is a big quantity and they go in and they have plenty to test with then you have to have the theory that that was planted there from the saliva extracted from two little cotton balls.

MR SMITH: But she did not test the entire area of that encrustation. There was testing of part of it.

KIRBY J: Yes, but she had a nice big sample.

MR SMITH: Which was not observable on the balaclava when it was first taken by the police - - -

KIRBY J: I do realise a point in your favour is that DNA evidence – it is like computers, lay people put enormous faith in what comes out of computers and no doubt lay jurors put enormous faith in the science of DNA and perhaps generally rightly so, but it can only have faith if the sample and the physical objects are carefully handled, but in this case there was that added ingredient.

MR SMITH: To answer your Honour’s question, my submission is, with respect, your Honour is not approaching it the correct way for this reason. It is not for the defence to establish that the only way in which the DNA could be placed on the balaclava is to produce a sufficient enough sample to do that. It is for the Crown to establish that beyond reasonable doubt.

KIRBY J: I appreciate that but the Crown seeks to do that, at least in this Court, by pointing to the evidence of the forensic expert and saying the encrustation and the nice big sample did not come from the cotton balls which, as I understand it, is the only basis of your hypothesis and police giving of - - -

MR SMITH: That is true and I have already submitted to your Honour exactly what she does say about that and there is sufficient doubt, based on reason.

KIRBY J: Yes, we have been down that track. But the Sultana point does not arise unless you get up on the premise, is that not correct?

MR SMITH: I would agree with that.

KIRBY J: Yes. Now, there is no other point in this case, is there?

MR SMITH: Not from my client.

KIRBY J: No.

MR SMITH: But could I just tell your Honour where the Court of Appeal did go - - -

KIRBY J: Yes. This is on this hypothesis of the factual - - -

MR SMITH: This is.....hypothesis, paragraph [39].

KIRBY J: We have read that. We know what Sultana and - - -

MR SMITH: The Court of Appeal seems to say, well, look, this direction should not be given because it would be infringing section 632 of the Criminal Code by giving a direction about a class of witness. My submission is that is an error because if one was logically to extend that observation made by the Court a McKinney direction in respect of confessions could never be - - -

KIRBY J: That point will be a proper point to raise in a case where the factual premise presents it but as the Court of Appeal said, the principle is not relevant in the present case. They went on to give what may or may not be a reason, but it is not relevant if you do not come to the conclusion that the hypothesis you propound was a possible source of the planting of saliva on imperfectly maintained physical objects.

MR SMITH: I have conceded that, your Honour. I think I have referred to the relevant evidence of Ms Bentley in that area and also the evidence of the police officers where at least two cotton wool balls were taken, although admittedly Dr Levy gave different evidence to that but was reconstructing, in my submission.

KIRBY J: Yes.

MR SMITH: In conclusion, your Honour, my submission is that on the facts of this case, because this hypothesis that I am putting to your Honour is not an unreasonable one on the state of the evidence and in light of what has happened to the balaclava and the missing saliva sample, the trial judge should have given a warning. If a warning had been given about the DNA evidence in this matter my client might have had a reasonable prospect of acquittal on at least the attempted murder charge. Thank you, your Honour.

KIRBY J: Yes, thank you very much, Mr Smith. Yes, Mr Kimmins.

MR KIMMINS: Can I just deal with a preliminary point, if it pleases the Court. Having spoken to the Registrar this morning I understand that documents which were forwarded to the Court, including an amended applicant’s summary of argument and an affidavit under the hand of my instructing solicitor, Adam Campbell Guest, explaining how that came about have not been provided to the Court.

KIRBY J: It is a bit later for us to read a complete – why do you not hand it up and then tell us what the essence of the difference is?

MR KIMMINS: Yes, your Honour.

KIRBY J: We are not too worried about the affidavit, but we do not have time to be looking at a whole new case now. What is the point of difference in the case?

MR KIMMINS: It has basically fleshed out the points which have been raised in the initial outline by the instructing solicitor. There is also reference to the possibility of the Court of Appeal erring in that they failed to consider all of the global prejudice as a result of the grounds that they found as established.

HAYNE J: Can I be difficult and start you at the other end?

MR KIMMINS: Yes, your Honour.

HAYNE J: If you go to page 86, paragraphs [14] and following provide a list of facts which seem, on their face, to present some difficulty.

MR KIMMINS: I accept that there were factual problems so far as the applicant was concerned.

HAYNE J: Let it be assumed that you had a point – a point even of general principle – why in this particular case with the facts as there described would we take it on? Why is it arguable there has been any miscarriage in the case of your client?

MR KIMMINS: Possibly, in summary, if I could put it this way, your Honour. The primary evidence, we would submit, so far as the identification point is concerned is that of Mr Visentin. Mr Visentin provided information that in February 2000 a person masquerading as a prison officer from the nearby Numinbah Prison Farm had entered the premises and started speaking to Mr Visentin about the first robbery which had been undertaken there. The robbery then took place in May 2002, some three months subsequent to that. Subsequent to that a journalist provided copies of three photographs of person who were alleged to have been - - -

KIRBY J: But you are not grappling with Justice Hayne’s question. Justice Hayne’s question is the one that concerns me too. Given that there were defects, and accepting that there were defects in the procedure of identification, given that fully – notwithstanding that, just putting that to one side at the moment, you have a very powerful collection of circumstantial evidence that implicates your client.

MR KIMMINS: I accept that there were - - -

KIRBY J: Where is the miscarriage? The best you can put it is that in Domican this Court said that we do not know on what foundation the jury rested its verdict and if it rested its verdict solely on the issue of the identity evidence then that would be an infirm foundation for the jury verdict. But you are here at the barrier of having this Court consider whether you get into the Court at special leave so you have to do rather better.

MR KIMMINS: Could I say so far as the concession I made before, I accept that the circumstantial case against the applicant was such that it was a strong case but there were other - - -

HAYNE J: And does it not cut the identification point away because his blood is found in the car which, if you want to colour it, can be described as one of the getaway cars.

MR KIMMINS: Probably the best way I could put it is this. The case, having regard to the points that were raised before the Court of Appeal and we have sought to litigate here was left to the jury after the learned judge had finished his summing-up was that the accused was in fact – the applicant was a criminal and that his three alibi witnesses were persons who could be considered to be liars. That was his whole case. His whole case was based upon what he testified in the witness box and three alibi witnesses. As it was left at the end of the day, the jury could well and truly have left all that evidence to one side without even contemplating the weaknesses or otherwise there of the prosecution case because of those factors. That, simply put, we suggest to the Court is the reason that it cannot be said that this man had a fair trial.

I accept that so far as the first point in relation to the identification and the admission thereof. I have some difficulties establishing a special leave point because this Court has considered the admission of evidence in Festa in recent times. It is more so to the directions given in relation to the identification that I would seek to indicate to the Court that there were, on a number of bases, reasons for which the Court of Appeal should have concluded that there was in fact an arguable case – in fact, more so than that, that the trial miscarried as a result of those directions.

I will not repeat what I indicated before to the Court that so far as the Visentin evidence was concerned it was very powerful evidence and obviously sufficient, in the circumstances, to have raised in the mind of the jury a connection by this applicant with the robbery, leaving the identification evidence to one side, and if the jury had been properly directed that it was basically worthless and very weak then, in the circumstances, you were left with the straight circumstantial aspect of the car and the blood, but then it would have at least been an even playing field so far as the applicant was concerned when one considered whether they accepted his evidence and those of the three witnesses – the three alibi witnesses. So far as the major areas in relation to the weaknesses on the identification were concerned we would point to - - -

KIRBY J: I do not think you have to address us. I have to say I think the identification evidence was unsatisfactory, but it is not the end of the issue in the case because as Justice Hayne has said, our focus must be on has it resulted in a miscarriage of the trial, a miscarriage of justice for your client.

MR KIMMINS: If the Court considers the point so far as the failure to properly direct in relation to the Visentin evidence, add to that the misdirection, we would submit, so far a the alibi witnesses were concerned and also the placing of information before the jury that he was on bail at the time of the commission of the offence - - -

KIRBY J: These are makeweights.

MR KIMMINS: That is why I have suggested it is a global approach. Possibly the Court may consider that having regard to the strengths or otherwise thereof of the case against him – the circumstantial case against him it may not be sufficient but then you start to add other pieces of evidence which - - -

KIRBY J: That is why I describe them as makeweights. In the big picture of this case you are either going to get special leave or not on the imperfection of the conduct of the identification and the directions given on that.

MR KIMMINS: That is correct. So far as the question in relation to the direction so far as the identification evidence is concerned what we would submit is that in all of the cases that have come before this Court dealing with identification the Court has stood back and avoided giving judges directions in relation to what is the minimal or minimalistic standard of summing-up so far as the - - -

HAYNE J: Domican goes a fair way to telling what trial judges are meant to do. At least, I had always understood it as that.

KIRBY J: I was reversed in Domican. Domican is written on my heart.

MR KIMMINS: It is more so what is expected of a trial judge so far as specific identifiable topics to be discussed when directing a jury in relation to identification where it forms an important part of the case.

HAYNE J: You do not have to sit in a Court of Criminal Appeal too long to be able to recite Domican about references to the authority of office and how strong was the light and what were the - - -

MR KIMMINS: Yes, your Honour.

HAYNE J: We understand.

MR KIMMINS: The Court of Appeal in this particular case, as this Court would be aware, considered that there were a number of omissions made by his Honour and I think they used the words “in hindsight” and “it may well have been better if his Honour had directed the jury in other terms”. That is a concession, we would submit, in the circumstances that the directions
were inadequate when one has regard to other factors and I think the Court - - -

KIRBY J: Yes, we are aware of all this. Anything else?

MR KIMMINS: Only this, that Chief Justice Barwick in Ireland’s Case considered that – page 331. I can pass up a copy to the Court, if necessary.

KIRBY J: Just tell us. I remember Ireland. I do not remember the passage.

MR KIMMINS: Page 331 talked in terms of:

The basis of an order for a new trial is that the trial which has been had has not been a fair and proper trial. Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial.

We submit when you have regard to the major argument that we would put before the Court in relation to the identification with the subsidiary points lead to a conclusion, as I have indicated to the Court, that this man’s case was left to the jury on the basis that he was a criminal and that the alibi witnesses were lies and as such he did not have a fair trial.

KIRBY J: Yes, thank you very much. Thank you, Mr Kimmins. The Court does not need your assistance in either of these applications, Mrs Clare.

The first applicant, Mr Brett Griffith, was convicted of attempted murder with armed robbery in circumstances of aggravation. The co-offender, similarly charged and convicted, was Mr John Cole.

The main ground of the application by the applicant Griffith relates to the direction given to the jury by the trial judge in respect of DNA evidence, having regard to the imperfections in the police handling of the physical evidence and the suggested risks of contamination of that evidence. The applicant complains that the Queensland Court of Appeal failed to insist, in the circumstances, on a direction in accordance with McKinney and Judge v The Queen [1991] HCA 6; (1991) 171 CLR 468 and in that court’s failure to follow the New South Wales Court of Criminal Appeal in R v Sultana (1992) 74 A Crim R 27.

This is not a case to explore those questions. The evidence against the applicant at his trial was compelling. The DNA deposit on a balaclava was only one element in that evidence. In any case, there was scientific evidence that the balaclava stain which yielded the DNA evidence compatible with the applicant’s DNA required at least 2 millilitres of saliva. That was substantially more than could have been extracted by the police in two cotton balls taken from the applicant for testing, suggested in this application as the source of the police contamination of the evidence.

It should be mentioned that no redirection was sought on the issue by trial counsel. We are not convinced that an error has been shown warranting, in this case, a grant of special leave. Nor do we consider that there has been a miscarriage of justice in Mr Griffith’s case. Special leave is therefore refused.

The main ground in the application on behalf of Mr Cole concerns the suggested defects in the conduct of identification procedures and redirections given by the judge on statements by alibi witnesses.

It is true that the showing of the photo board to the victims of the robbery before a subsequent identity parade was a flaw in the police procedures in this case. However, the trial judge gave strong directions to the jury on the point. The Court of Criminal Appeal found that those directions adequately addressed the imperfections of the procedure. Independently of the identification evidence, there was a very strong circumstantial case indeed against Mr Cole.

We are conscious of what was held by this Court in Domican v The Queen (1992) 173 CLR 555 concerning the importance of proper identification procedures, especially where such evidence is to be adduced in a jury trial. In the particular circumstances of this case, however, we see no error in the conclusion of the Court of Appeal that the jury’s verdict of guilty and the applicant’s conviction were inevitable. The applicant Cole has not shown a miscarriage of justice.

This conclusion is sufficient also to dispose of the complaint about redirection on the date of the alibi witness statements. Trial counsel, again, raised no objection to the form of the proposed redirection given on this issue by the trial judge.

We are unconvinced that this second issue was significant in the context of the trial. Nothing said by Chief Justice Barwick in Ireland v The Queen [1970] HCA 21; (1970) 126 CLR 321 at 331 concerning the aggregation of suggested errors requires or suggests a different outcome. The result is that special leave is also refused in this case.

Accordingly, in both applications special leave is refused.

The Court will now adjourn until 2 o’clock.

AT 12.45 PM THE MATTER WAS CONCLUDED