Fischer v The Queen [2007] HCATrans 477 (31 August 2007)

Last Updated: 24 September 2007

[2007] HCATrans 477

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B22 of 2007

B e t w e e n -

CAMERON OLE FISCHER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 31 AUGUST 2007, AT 12.25 PM

Copyright in the High Court of Australia

MR J.D. HENRY, SC: May it please the Court, I appear on behalf of the applicant. (instructed by O’Reilly Stevens Bovey)

MR M.J. COPLEY: May it please the Court, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Qld))

HAYNE J: Yes, Mr Henry.

MR HENRY: May it please the Court. Can I go to the issue pertaining to the weapon and ammunition, the issue being whether a defendant’s possession of a firearm is admissible merely because of a hypothetical possibility that it might be used to protect or defend illegal activity, a matter of some importance given the frequency with which weapons arise both by way of evidence in argument about admissibility in the criminal jurisdiction and also because the novel premise identified for the admissibility of the evidence in this matter by the Queensland Court of Appeal, if uncorrected, would appear to provide a basis for avoiding the special connection threshold required of propensity evidence by this honourable Court.

Your Honours, the premise for admissibility of the weapon and ammunition as identified by the learned trial judge was that it was a so-called tool of the trade to be used to protect the illegal activity of methylamphetamine trafficking and production. It was so used in the address of the learned Crown Prosecutor to the jury and essentially the same basis was identified by the Queensland Court of Appeal. Can I take your Honours to the application book at page 84. The critical justification for the admissibility of the evidence is discussed at paragraph [27]. Within that paragraph in particular at about line 35 her Honour the President, with whom Justices Helman and Philippides agreed, said:

Those in the business of producing and trafficking in methylamphetamine cannot call on lawful means to protect their illegal drugs and profits made from their business. The presence of the rifle and ammunition, hidden but quickly accessible, was capable of showing he had the means to protect the illegal drugs he produced and the proceeds from his trafficking.

I pause to remind the Court there was, of course, no evidence of any weapon ever being used in the course of the alleged activity let alone any incident when any protection was actually required. Her Honour continued, and this is important in view of a subsequent justification to avoid a line of reasoning, with respect, against the Court of Appeal:

It was also relevant in this way as being capable of rebutting Mr Fischer’s claim that he knew nothing about any methylamphetamine production on his property.

Your Honours, it was important to the prosecution case to link the applicant to the items found at his property generally, items obviously used, at least in large part, to produce methylamphetamine, the preponderance of which items were more so towards a donga rather than the house where of course the firearm was located. The critical issue in the case was not whether the items had been used to produce methylamphetamine, as obviously had occurred, but, rather, whether it was the accused who had done so. In other words, identity was an issue. I highlight that because one goes to the beginning of paragraph [27], which is at about line 27 where her Honour says:

The evidence of the finding of the rifle and ammunition on Mr Fischer’s premises was not that type of circumstantial evidence admissible as relevant to identification of the perpetrator of an offence as, for example, where the weapon or a similar weapon had been used in the commission of a robbery

HAYNE J: Can I just understand the facts a little better than perhaps I do. Was there evidence given at trial that the premises were surrounded by unusually high fencing and other security methods?

MR HENRY: The evidence at trial in that context related to a fence around the house. It did not go right around it but at least around the flat part of the house. It contained four strands of barbed wire at top.

HAYNE J: What was the relevance of that evidence?

MR HENRY: I have a difficulty in answering that because you might have noticed from the Court of Appeal’s judgment that that was also a ground of appeal below but, ultimately, it seems to be an argument that it was evidence that he was protecting his unlawful activity.

HAYNE J: Does it stand in any different case from the firearm, that is, unless you challenge – what will I call it – the security fence issue, does not the argument fall with that?

MR HENRY: The difficulty is that in the course of the trial as, with respect, was a rather obvious afterthought, nothing was made of the fence until during the course of it there was an attempt to lead evidence not previously led or identified as intended to be led from the owner of the property that the fence had been installed without his knowledge. However, it then transpired that in fact that fence had been installed, at least on the face of the evidence adduced, prior to the alleged period. So, in other words, at the threshold, the time when the matter might arguably have been objected to because the prosecution put the defence on notice it was going to make something of it, at that point in time at the start of the trial there was no notice that anything was to be made of it at all. On the face of it, it was - - -

HAYNE J: All the more reason to exclude it as irrelevant, surely, and to object to it if it was to be objectionable.

MR HENRY: On the face of it it did not appear to be objectionable in the absence of something to be made of it by the Crown, in my respectful submission. Only when put on notice that it was the subject of some additional evidence where the Crown was attempting to make something of it was it objected to. That objection failed at trial. The document of completeness though might arguably have led to its admission. That doctrine, if I can refer to it as that, was discussed in Thompson and Wran, in effect, the argument that something is so inextricably bound up with the appearance of what is to be admitted that it cannot be severed. Playing with the firearms would not fall into that category so therein lies a distinction.

HAYNE J: Is the point you would make a point about relevance, a point about admissibility or a point about discretionary exclusion?

MR HENRY: Admissibility, I suppose carried with that is the notion that the evidence is irrelevant.

HAYNE J: You being with relevance. Was it relevant to demonstrate at the applicant’s trial that there was a firearm in the house he occupied kept where it was?

MR HENRY: In my respectful submission, no, because it proved nothing. There was no connection with anything in the evidence that might have made it relevant. There was no suggestion of the use of this or any other firearm. There was no suggestion in the course of any of the illegal activity alleged.

HAYNE J: Did the evidence go to who had either access to or ownership of the weapon that was found?

MR HENRY: Yes, because it was found within premises plainly occupied by him. Indeed, there was never any attempt at trial to disown his ownership of it. But accepting that, on what basis is his possession of a firearm relevant in the context of the case made against him, and therein lies the complaint, simply the absence of any evidence that logically made it relevant in that case. Indeed, forget the absence of evidence of the use of any firearm, there was not even any evidence to suggest that there had been any episode at all requiring so-called protection. That is the difficulty at the threshold, in my respectful submission, with the evidence. Your Honours, the reference in Thompson and Wran and the subsequent line of authority referred to in my outline emphasising the need for some special connection - - -

CRENNAN J: There were other things found other than the firearm, were there not?

MR HENRY: Absolutely, there were, all things relevant to help in proving his involvement with the offence. But the question posed again is, how, though, did the firearm aid in any way in proving his involvement in the offence? Therein lies the difficulty, in my respectful submission. It simply had no logical connection at all with the evidence or the case to be advanced against Mr Fischer. That notion of there being a need for some special connection with the evidence because otherwise the evidence would do no more than prove criminal disposition – and this really picks up with, I suppose, an alternative argument that, even if admissible, is an argument about prejudice. Of course, there was one dealt with in Pfennig which confirmed that evidence in propensity needs to have a specific connection with the commission of the offence charged, and that requirement, the propensity evidence have some particular probative quality, was, of course, affirmed in Phillips.

Your Honours, can I finish with this point in this way. The notion that a weapon might hypothetically be used to defend illegal activity hardly affords probative value to the finding of a weapon where there is no evidence of its actual use or any episode in which it may have been used. It is possible to think of hypothetical scenarios where a weapon might be used for protection in many forms of criminal activity. It is in the nature of criminal activity generally, for example, that offenders, or at least most offenders, are unlikely to be interested in resorting to the protection of the police. In other words, the reasoning of the Court exposes the mischief that is open by analytical extension here that the Court’s reasoning applies to almost any form of criminal activity in that it is possible to conjure up a hypothetical, that is to say, a speculative possibility of the need to protect illegal activity in the context of a whole host of offending.

Might I turn to the second matter, the application of the proviso. It is submitted that the proviso should not have applied in this particular case and therefore the interests of the administration of justice warrants this honourable Court’s consideration of the matter. Can I develop three points briefly on this issue. For the first it is necessary to again go to the judgment. Can I take your Honours to the application book at page 95. The critical paragraph dealing with the proviso appears at paragraph [72] on that page commencing at about line 39. Her Honour there said in the third sentence:

The evidence of Willis and Higgins required careful scrutiny but, in combination with the finding and location of the dismantled methylamphetamine laboratory on Mr Fischer’s premises in June 2000, it amounted to a convincing case against him on each count.

Can I emphasise, your Honours, the words “in combination with the finding and location of the dismantled methylamphetamine laboratory”. It underscores the critical importance in the prosecution case of establishing a link between Mr Fischer and the items found in the search of the premises because, absent that link, then it does not provide that combination supporting the evidence of Willis and Higgins which her Honour acknowledged required careful scrutiny.

The first point I make is that the judgment does not appear to acknowledge the problem the prosecution case had in establishing that link, absent, for example, the argument about the firearm and this argument about the proviso should proceed on the premise that the court would not have regard to the firearm. The problem that presented itself in this context for the prosecution case was that there was other evidence of other persons who had attended at the premises, particularly the donga, and, indeed, some had stayed there. So plainly there was a critical need to establish a link between the items found in respect of my client as opposed to the other potential candidates.

The second point is the judgment acknowledges that the evidence of the indemnified accomplice witnesses, Willis and Fischer, required careful scrutiny, yet it does not acknowledge the inherent difficulty in scrutinising their reliability and credibility on the record. Can I take your Honours to my book of authorities and other material to tab 8 and Weiss v The Crown and, in particular, page 316 of the judgment at paragraph 41 on that page under the heading “The statutory task and the proviso”. Your Honours, about three sentences down the Court said:

The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction.

In my submission, the court should so have concluded here. Acceptance of the evidence of Willis and Higgins was critical to the success of the broader case of trafficking and, indeed, to the second count of production but there were problems of such a nature that, in my submission, should have caused the court to conclude it could not reach the required degree of satisfaction from the record. In respect of Higgins and Willis, they were indemnified accomplices. The prospect of them being indemnified was raised at an early stage of them giving information to the police.

There were problems with the transparency of the police dealings with them. Each had a motive for vengeance, each had previous convictions. Willis had a history of dishonesty, violence, deflecting blame to others and paranoia and Higgins engaged in an extortion attempt through text messaging in respect of the case itself, and each were in conflict as to the circumstances under which Fischer had allegedly supplied others at the club house of the Rebels. It was in the nature, then, of their evidence that an examination of the record could not have sufficed, in my respectful submission.

The third and final point is that there appears to be no acknowledgement of the compounding prejudicial effect of the wrongful admission of the evidence. Indeed, to the contrary, in another context, the court was dismissive of it. In the application book at page 86 at about line 35 in paragraph [35] her Honour went through the various prejudicial aspects that Mr Fischer had to deal with in the case and finishes with the point:

The fact that he chose to give exculpatory evidence portraying him, as his counsel now submits, with a “taint of lawlessness and violence”, does not amount to a miscarriage of justice.

Would your Honours bear in mind that comment was not made in the context of the proviso but, rather, in respect of another point. When one turns to the court’s consideration of the proviso there appears to be no acknowledgement of the difficulty that the wrongful admission of the evidence had in a compounding sense in that there became inevitably an evidentiary onus at the very least on Mr Fischer in the event that he gave evidence – and he should not have to avoid giving evidence simply because evidence was wrongfully admitted against him – for him to explain why it would be that he had the gun and that explanation, while exculpatory in the context of the case, was necessarily itself prejudicial because it was that he had been shot at and assaulted by another motorcycle club.

I rush to point out nothing in the context of it had anything to do with the context of the offending he was charged with. He should not have had to cope with having to advance those sorts of explanations in respect of
evidence that should never have been admitted against him. There seems to be no acknowledgement in the court’s application of the proviso of that compounding difficulty. The point I make then about that is, in a sense, picked up in Wilde, which is at tab 5, in particular at page 373 of the judgment at about line 10 where their Honours said:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that is goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.

There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or to the manner in which it was conducted.

Plainly, the manner in which it was conducted here is the difficulty I am identifying with this third point. Those are my submissions.

HAYNE J: Thank you very much, Mr Henry. We need not trouble you, Mr Copley.

The applicant seeks special leave to appeal against the orders of the Court of Appeal of Queensland giving effect to its decision that no error was shown in the reception of evidence at the applicant’s trial that he had a firearm hidden in the house he occupied and that that house was partly enclosed by a 2-metre high chain wire fence topped with four strands of barbed wire. Admission of the evidence concerning this security about the house is not now challenged. On the property was a shed or donga in which there was much evidence of the production of large quantities of methylamphetamine.

The applicant’s appeal to the Court of Appeal of Queensland was dismissed not only on the basis that the substantive grounds urged in that Court were not established but also on the basis that the proviso applied. The question of admissibility of the evidence of the firearm would not arise for consideration were special leave to appeal granted. On the other evidence led at trial we are not persuaded that it is arguable that there has in this case been any miscarriage of justice. Special leave to appeal is refused.

AT 12.46 PM THE MATTER WAS CONCLUDED