Doyle v The Queen [2019] HCATrans 187 (13 September 2019)

Last Updated: 17 September 2019

[2019] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B35 of 2019

B e t w e e n -

LIONEL JOHN DOYLE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 SEPTEMBER 2019, AT 9.30 AM

Copyright in the High Court of Australia
MR M.J. COPLEY, QC: If the Court pleases, I appear for the applicant with my learned friend, MS C.R. SMITH. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC: If the Court pleases, I appear on behalf of the respondent, with my learned friend, MS D. BALIC. (instructed by Office of the Director of Public Prosecutions (Qld))

BELL J: Yes, thank you, Mr Copley.

MR COPLEY: Your Honours, we seek an order that compliance with the time limit be dispensed with.

BELL J: Yes. Is there any objection to that, Mr Heaton?

MR HEATON: No, there is not, your Honour.

BELL J: Yes, you have that dispensation.

MR COPLEY: Thank you, your Honour. Your Honours, the error in this case is to be found at page 35 of the application book in paragraph [26] of the judgment where it was concluded that the directions given by the learned trial judge were correct. The directions concerned are set out at pages 32 to 33 of the application book at paragraph 40, or they can be seen in their original form at pages 13 to 14 in the transcript of the summing‑up beginning at line 30 on page 13 and going over to line 14 on page 14.

This case, it is submitted, was not an appropriate case for a direction or a comment that an inference of guilt may be strengthened in the absence of an explanation from the accused. The absence of an explanation was not clearly capable of assisting the jury to evaluate the evidence in this case for two reasons. First, it is submitted that there was an obvious hypothesis which remained reasonably open on the evidence. That hypothesis being, simply, that some acquaintance took or helped himself or borrowed the applicant’s vehicle without asking him and the associated unlikelihood that the taker or borrower of the vehicle would reveal the fact of that to the applicant having regard to the serious criminal behaviour that the driver of that vehicle engaged in on the evening concerned.

On this reasonably open hypothesis, the applicant would not have been able to offer any explanation for his vehicle’s presence at or involvement in the incident. All that he could have said was that he did not know how it came to be there. So, there would have been no fact or circumstance peculiarly within his knowledge on this hypothesis.

KEANE J: Mr Copley, what about the question as to how he came to be one and half kilometres from the site of the incident on Deception Bay Road in the direction where the offender was seen to walk and in circumstances where there does not seem to be any evidence or, indeed, any suggestion of a possibility that he came to be where he was ultimately found otherwise than on foot?

MR COPLEY: He could, indeed, one would imagine, have explained why he was where he was found but the evidence was that some months later when the police went to arrest him in July, he lived at an address in that suburb of Deception Bay and the evidence in the prosecution case was that where he was found was near enough to a hotel or, I think, it was described as bearing the name of a tavern. So, yes, indeed, he could have explained what he was doing there or why he was there but that, of course, was not the central issue in the case, the central in the case was was he the driver of his car.

KEANE J: Yes, it was, and there was evidence of a general description of someone who answered his description leaving the site of the incident and there is some time later, one and a half kilometres from the site of the incident, and no explanation as to how he comes to be there on foot.

MR COPLEY: Well, no, but it was getting towards two and a half hours later and the similarity between the descriptions given and his appearance would seem to have been confined to that he had dark skin – I am assuming he did, I have not seen him, but one would have thought there would have been a submission if he did not to the jury and there was not. So, he must have had dark skin and the description was the person was dark skinned, of indigenous background or ethnic background and that he was aged between 40 and 55.

KEANE J: And he was intoxicated.

MR COPLEY: That is what it seemed to one of the witnesses but the submission to the jury was that, well, there had just been a very bad accident where a car went through a fence and into the wall of a house and the persons stumbling and slurring could have been the product of some impact in the accident.

KEANE J: And wielding a sword.

MR COPLEY: And what, your Honour?

KEANE J: And wielding a sword.

MR COPLEY: Yes, yes, the man was wielding a sword. Yes, I cannot deny that, but there were no fingerprints found on the sword. So, the other reason why a direction like that given was not appropriate was that the prosecution case was extremely deficient and that provided an adequate explanation for why he may have decided not to testify.

So, I make these points which perhaps have been implicitly made already but they include that there was no witness called by the prosecution who purported to identify the applicant as the driver. There was no evidence led as to whether the applicant’s feet were shod in shoes or other footwear when the police took up with him that night and that has significance because one of the witnesses said when the driver emerged from the car he had no shoes on and a pair of thongs or sandals were found in the driver’s footwell of the vehicle by police later.

There was no evidence led about the applicant’s face in terms of whether he was shaven or unshaven because the descriptions were that the man had a beard. One person even said it was down as far as his chest. There was no evidence led as to the state of the applicant’s hairdo. Some people said it was long and straggly.

There was no evidence as to what clothing the applicant wore when the police found him. One witness said the driver had a white top, another described it as “high vis” meaning high visibility clothing, and a third witness said that she thought he wore something green, I could not recall where. Lastly, there was no evidence about whether the applicant bore any sign of a recent injury and the significance of that was that one of the witnesses said that the driver came out of the car and there was blood on or about his person.

GORDON J: Was there any contention in the Court of Appeal that the verdict was unreasonable?

MR COPLEY: No, your Honour, there was not. There was an application made at the end of the prosecution case at the trial that there was no case to answer, that was obviously overruled, and then that point was not taken further at the appeal court.

BELL J: Was any point taken about the giving of the Weissensteiner direction?

MR COPLEY: Yes, it was resisted. The initiative for it came from the trial judge. Defence counsel made arguments against it but failed and then dealt with it – and provided the explanations that are seen in the judgment of Justice Sofronoff, the explanations being the possibility of a scenario of lending the vehicle and, of course, lending connotes that you are parting with possession with permission and knowledge and the other possibility that he might have had a number of vehicles and had sold this one but registration had not gone through.

But the contention is that there was this other very reasonable hypothesis open that some acquaintance had just helped himself to the man’s car, and given what the driver of it did, it would be not difficult to think that it would be unlikely that that person would confess to the applicant what he had got up to in his car, therefore the applicant could have said no more than “I do not know how it came to be there”.

BELL J: It comes down to whether this was the sort of exceptional case that the majority in RPS v The Queen said, having regard to Weissensteiner, it would be open to give such a direction by reason that in the absence of the direction a damning inference could be drawn and it is an issue about whether or not the circumstance of the car and the key being in the car and the presence of the applicant two hours later or two and half hours later not far from the scene answers that description.

MR COPLEY: Yes, it is, and of course ‑ ‑ ‑

BELL J: Is there a point of principle or is the application being urged on the grounds that it is in the interests of the administration of justice?

MR COPLEY: In my written outline – in our written outline, that is what we put. All I could suggest now as to what point of principle might emerge is that in Weissensteiner v The Queen at page 228 ‑ and this is the passage that we have reproduced in our written submissions ‑ Chief Justice Mason and Justices Deane and Dawson said:

Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent ‑

So, perhaps if there is a point of general public importance, it concerns the question of how deficient does the case have to be to satisfy that description. The difficult with that would no doubt be, it would be put, that well, it would depend from case to case. Obviously, if there was no prima facie case against a person, a trial judge would not let the matter go to the jury but there is a wide range of cases between a bare prima facie case and a strong case.

BELL J: In any circumstantial case, it would be the prosecution contention that looked at as a whole, the circumstances point beyond reasonable doubt to guilt. So, to that extent, I suppose, it can be said any circumstantial case on one view invites an explanation from an accused but that is hardly consistent with the majority reasoning in either RPS or Azzopardi.

MR COPLEY: No, because – well, no, it is not, even going back to Weissensteiner, the Court there in the passage I have quoted was dealing with a circumstantial case but was admitting of the possibility that there might be one so deficient. So, we are not at the situation where in any case involving or turning solely on circumstantial evidence where there is at least a prima facie case this direction is appropriate. There will still be cases which are so defective or deficient that it is not permissible and, we argue, that this would be at least in that category.

BELL J: Yes.

KEANE J: I am sorry, Mr Copley, you finish.

MR COPLEY: I had finished really, your Honour.

KEANE J: Mr Copley, in Justice Fraser’s reasons at page 37 at paragraphs [36] to [38] and, in particular, in paragraph [36] Justice Fraser says:

The trial judge made it clear that the appellant’s failure to call or give evidence did not assist the jury and could not be used to resolve doubts about any of the evidence in the Crown case.

Do you criticise Justice Fraser’s reasons in paragraphs [36] to [38]?

MR COPLEY: Well, that is correct, her Honour did give those directions, but the inclusion of the direction about being able to more confidently draw an inference absent an explanation is the criticism that we make of the summing‑up.

KEANE J: What about Justice Fraser’s conclusion at paragraph [39]:

The comments challenged by the appellant did not qualify or undermine the trial judge’s emphatic and conventional directions about the onus and standard of proof.

MR COPLEY: The submission is that ‑ ‑ ‑

KEANE J: You have to say that he is wrong about that, do you not?

MR COPLEY: Yes, yes, because there is a an irreconcilable inconsistency between that proposition and the direction at page 13 of the application book that if the evidence presents an inference that he was the
driver and the man with the sword, that inference may be strengthened by his decision not to offer any evidence as an explanation.

GORDON J: Then at line 39 to 40 her Honour deals with, does she not, precisely the point just raised by Justice Keane?

MR COPLEY: I am sorry, your Honour, can you say that again?

GORDON J: Between lines 35 and 40 on page 13, her Honour deals with the questions of onus in a way contended for – put to you by Justice Keane.

MR COPLEY: Yes, but my point is that by inviting the jury to find that the case against him may be strengthened by the absence of any evidence, that effectively rendered nugatory the directions about there being no onus on the applicant. They are my submissions.

BELL J: Thank you, Mr Copley. Yes, Mr Heaton.

MR HEATON: Your Honours, contrary to the contention of the applicant, in our submission, this was a circumstantial case that had some strength to it but certainly called for an explanation as to some key features of the circumstances if the hypothesis that is now advanced is said to be elevated beyond mere conjecture or, indeed, a theoretical possibility, into a hypothesis that might be regarded as being reasonable in the minds of the jury.

The contentions of the applicant are, essentially, founded upon a submission that because what is said to be an obviously reasonable hypothesis consistent with innocence exists, that is, that some person unbeknown to the applicant has availed himself of the car and used it in the way alleged in the offending, that the case was therefore not one where it was appropriate for the judge to make some comment upon the failure of the applicant to offer some explanation by way of additional facts in the trial.

BELL J: Is that putting the cart before the horse, Mr Heaton? The present doctrine of this Court is that it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Their Honours went on then to note that in some circumstances it may be appropriate where evidence is necessary to contradict an otherwise damning inference and the reference, of course, was to Weissensteiner.

MR HEATON: Yes.

BELL J: It is difficult to read RPS and Azzopardi as holding other that in ordinary circumstantial evidence cases, notwithstanding the Crown’s contention that the inference to be drawn from the circumstances is guilt, it will not be appropriate to direct the jury respecting the accused’s failure to give an explanation.

MR HEATON: Perhaps to adopt that language of a damning inference, this was a case, in our submission, where the circumstances were such that the inference to be drawn from them did compel a conclusion of guilt, particularly this was the applicant’s own car, but not just that, the driver of the vehicle had the keys to the vehicle immediately narrowing the available candidates of people who might have been the driver on that occasion.

The circumstances by which a person might have come to be in possession of the car and the keys without the knowledge of the applicant would be, in our submission, additional facts only he could know that might provide a foundation to that hypothesis so as to elevate it beyond mere conjecture, beyond theoretical possibilities, and into something that the jury might properly regard as being a reasonable hypothesis.

The Crown need only exclude reasonable hypotheses consistent with innocence. This was not a hypothesis which was advanced at trial. It was advanced only on appeal and the circumstances ‑ well, as I said, the circumstances of the possession of the car and the keys in combination called for an explanation if there was an innocent one to be given.

Can I add to that, the physical proximity of the applicant on Deception Bay Road, one and a half kilometres away, heading in the direction on foot, as the offender or the driver of the vehicle headed from the scene, adds another element of compellability, in our submission, to the conclusion that it was the applicant who was the driver of the vehicle.

BELL J: Accepting, Mr Heaton, that it was possible to characterise the circumstantial case as a strong one, what feature of it called forth the giving of a Weissensteiner direction? Was it the fact that property belonging to the accused was found at the scene of the offence?

MR HEATON: It was certainly – well, that was a factor ‑ those were circumstances, not just his property but the car in conjunction with the keys called for ‑ if there was an innocent explanation that was able to explain that circumstance it can only have been knowledge within the – or peculiarly, within the knowledge of the applicant, and in the absence of any evidence explaining the location of his car and keys at the scene, the jury might, more comfortably, properly, draw the inference that there is no innocent explanation that is reasonable so as to cast doubt on the otherwise compelling conclusion that all the circumstances combined would invite.

KEANE J: So that because the keys were there it is the case that either they were given to the driver by the accused or they were stolen in some way, so that if the latter the hypothesis would be that there had been a crime, that the explanation for the presence of the keys involved a crime by persons unknown. So that is the hypothesis that would have to be made? Do we normally hypothesise criminal activity in the absence of some evidence?

MR HEATON: Well, whether it is necessarily a crime or whether there is some other arrangement whereby people within his social network or associate’s network has access to his vehicle on some loose arrangement.

KEANE J: That assumes he would know that if it is done with his consent.

MR HEATON: Well, it might assume – that would be perhaps an additional fact that is available only to him to give as to this loose arrangement, but even going back a step to the theory of a potential crime having been committed, there would still be additional facts known to him that might explain the fact of his car and keys being found at the location of the scene at the time of the trial. He may not have known about the commission of the crime when apprehended on Deception Bay Road later that day but, certainly, in terms of events that unfolded later, whether or not a crime had been committed, whether or not his house had been broken into and the keys to his car had been stolen would be facts about which only he could have known.

If he lived in a house which was a share house type arrangement where his keys were hanging on a hook inside the house and anybody could have had access to it, again, something about which only he could have known and additional facts that would have gone to explain what was otherwise, in our submission, a compelling inference of guilt based on the possession of not just the car but the keys as well. I never seek to shy away from the fact that those features were part of – those circumstances were part of a larger circumstantial case which included the descriptions that were given and the location of him proximate geographically and relatively proximate in terms of time from the scene of the events.

So, those combination of circumstances, in our submission, called for – made this a category of case which called for an explanation such that in the absence of one being given, a jury might more properly regard the alternative inference that is advanced as being not a reasonable one. Indeed, then when looking at the directions that are given themselves, in our submission, the Weissensteiner style direction serves not only to permit but also to protect. Indeed, the learned trial judge very carefully and very thoroughly went through the circumstances in which the jury were
permitted to have some regard to the failure of the applicant to provide some explanation in the evidence in the trial.

BELL J: That is to say no more than in Azzopardi the joint reasons pointed out that generally it will be desirable for the trial judge to direct the jury in terms of the significance of the failure of the accused to give evidence but that was not to support the idea that generally it would be appropriate to give a Weissensteiner direction. Rather, having regard to fundamental aspects of the accusatorial nature of criminal justice, Azzopardi, confirming RPS, holds that it is only in an exceptional case that one might comment to a jury that if there were an explanation one might look to the accused to give it.

MR HEATON: In our submission, the exceptional nature of when a direction along these lines might be appropriate simply reflects that the circumstances giving rise to it will be rare. In our submission, this was a case in which the circumstances gave rise to the need for the judge – or the permission for the judge to direct the jury that they might have regard to the silence of the applicant in this limited way. I stress that in terms of what, in our submission, is the protective element of the Weissensteiner direction, that this was a case where the imagination of a jury might rightly have been excited adversely to the applicant.

BELL J: Mr Heaton, in paragraph 51 of the joint reasons in Azzopardi the Court gives a sample direction of the kind to be given in a case where an accused does not give evidence. It is not as though Weissensteiner has any plus from the accused’s point of view.

MR HEATON: Well, it might ‑ in a limited sense it might prevent a jury making too much of the silence of the accused.

BELL J: The matter I am raising with you, Mr Heaton, is the trial judge is expected to give a direction along the lines that the jury cannot use the accused’s failure to give evidence as a make way or to fill any gaps in the Crown case and so forth. All of that is standard. The matter in issue here is the invitation to the jury to reason to guilt in the sense of being more comfortable to draw the inferences that the prosecution invite by reason of the failure of the accused to offer the explanation.

MR HEATON: Yes, principally, that is our contention, that this was a case in which it was appropriate. The directions went no farther than what was appropriate to address the issues in this particular case and there was no, therefore, error. Those are our submissions.

BELL J: Thank you, Mr Heaton. Yes, anything further, Mr Copley?

MR COPLEY: Just briefly, your Honours. At page 12 of the application book in the paragraph immediately preceding the last paragraph, all of the directions that were required to be given, as per paragraph 51 of Azzopardi, appear, and in the last sentence in that paragraph, it says:

It –

meaning silence:

does not strengthen the case against him or assist the prosecution.

So, the submission is that the applicant’s rights were perfectly well guarded and adequately guarded by the directions up until that point. There was nothing of a protective nature that can be discerned from anything which followed. The other submission is that it is completely speculative to proceed on the basis that sometime between being spoken to by police and the date of trial, the applicant would have or might have discovered something about the circumstances of his car’s presence which he could enlighten a jury about. Thank you, your Honours.

BELL J: Yes, thank you. The Court will adjourn to consider the future conduct of the matter.

AT 10.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.05 AM:

BELL J: In our opinion the present application is not a suitable vehicle in which to consider any tension between the application of the principles explained in Weissensteiner v The Queen and those principles explained in RPS v The Queen and Azzopardi v The Queen. Special leave is refused.

AT 10.06 AM THE MATTER WAS CONCLUDED