Dansie v The Queen [2022] HCATrans 14 (18 February 2022)

Last Updated: 22 February 2022

[2022] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A16 of 2021

B e t w e e n -

PETER REX DANSIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 18 FEBRUARY 2022, AT 12.07 PM

Copyright in the High Court of Australia
KIEFEL CJ: I will announce the appearances of the parties.

MR T.A. GAME, SC appears with MR K.G. HANDSHIN, QC for the applicant. (instructed by Nathan White Lawyers)

MR D. PETRACCARO, SC appears with MS I.M. KIMBER for the respondent. (instructed by the Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. We need an extension of time. The substance of that application is in an affidavit at page 319 of the application book.

KIEFEL CJ: Is there any objection to that course, Mr Petraccaro?

MR PETRACCARO: No, your Honour.

MR GAME: Thank you, your Honour. Your Honours, this obviously enough was and is quite a complicated circumstantial evidence case, and if we seek a grant of leave and succeed, we would be seeking an order remitting the matter to the Court of Criminal Appeal rather than have the Court deal with the ultimate evidentiary issues involved in the application. Which brings me to the direct issue, which is, does this case raise a question of principle?

The position we put is this, that the different approaches taken by Justice Livesey and Justice Nicholson in the Full Court in South Australia is not explained by just a difference of opinion about the weight of the evidence, it is driven by a question of principle, that is to say, a wrong application of principle by Justice Livesey that was joined in by Justice Parker. And I will seek to explain that, briefly, if I can. So if I take your Honours to – and it runs deep, in our respectful submission, as to how his Honour deals with factual findings made by the trial judge.

So if I take your Honours to page 494 – sorry, page 298 of the application book, this is the end of his judgment, paragraph 494, his Honour says that, talking about the finding of inferences:

it is not suggested by the appellant that the various inferences tending towards guilt were not open or could not be drawn . . . He contends for different inferences. The potential for argument about inferences does not necessarily generate a basis for concluding that the trier of fact must, as distinct from may –

Now, those words, “must”, appear quite a number of times in Justice Livesey’s judgment, and what that suggests is some kind of higher test than that applied in M v The Queen, and that subject was effectively, in our respectful submission, put to bed by your Honour’s judgment in Pell. And in fact, the very paragraph of Justice Payne in Libke refers to the very paragraph in M v The Queen that states the test, and his Honour in the very same paragraph speaks in terms of language of “should necessarily have concluded”, and it does matter in this case. If I go to 495, his Honour says:

It is neither necessary nor appropriate for this Court to dwell upon what might be regarded as arguments for the defence about inferences.

And then there is a footnote to a case that is about a different issue completely, but how does one, in a case like this, conduct the exercise mandated by M v The Queen and SKA, and we say, only Justice Nicholson correctly.....if one does not engage with the inferences. That is essential, and obviously it is essential in a circumstantial case. Now, his Honour speaks about whether or not inferences in the.....should or should not have been drawn as matters for the trier of fact. Again, that is the very problem that arose in SKA.

The next paragraph refers to an intermediate finding of fact, of which we are critical, but the relevance of it for this particular argument is that the trial judge’s approach to finding of intermediate facts, which was really the hypothesis consistent with innocence, was quite problematic, but it was endorsed by Justice Livesey. But it is explicitly eschewed by Justice Nicholson, and it produces a different outcome. And then we come to the very end of the judgment, and I will show your Honours as quickly as I can how this judgment is bookended by this approach. If we go to paragraph 505 at page 300:

The Court of Criminal Appeal does not decide whether inferences tending towards guilt should or should not have been drawn . . . where proof depends on circumstantial evidence.

And then it speaks of whether:

It decides whether it was open –

But the language of “open” here is really whether or not there was a pathway to such reasoning. It is not used in the term of art way in which it is used in, say, M v The Queen or SKA, and then the judge ends with paragraph 506:

there must, as distinct from might, have been reasonable doubt about proof of guilt.

Incidentally, the language of “must” was used in his Honour Justice McHugh’s dissenting judgment in M v The Queen, it is a matter of passing interest at this point. And so if I just take your Honours, if I can, to some parts at the beginning of the judgment of Justice Livesey to show that his Honour, as I said, the whole thing really was bookended by this erroneous approach of principle. If you look at paragraphs 414 and 415 at 256, you see the same problem:

There was evidence to support the finding of murder –

It was:

not all “the one way”.

It is as if the test is whether or not there were facts upon which the judge could make findings of fact, but his Honour, this judge, eschewing the ultimate drawing of inferences. But then 415, again, this insistence that:

whether the judge “must, as distinct from might –

Anyway, so, and that phrase has caused a lot of mischief. I say “mischief”, I mean no disrespect to Justice Hayne, because he did not mean it that way in intermediate courts, and this is a very distinct instance of it.

We see on the following page, and this is quite important, 422, that first sentence comes from Justice Menzies’ judgment in Plomp v The Queen which, as it happens, is also a case about a suggested accidental death in the event of an unhappy marriage. But that first sentence must be wrong in the light of M v The Queen, it could not have survived it, because that is the question, and in fact, when you go to paragraph 431 you see a citation of Coughlan, and that is correct. So you can see, at 431, that there is nothing to suggest that his Honour has done the exercise mandated by Coughlan.

Now, we see the same ‑ and I can really only, in the time available, take you to some very particular passages ‑ we see the same at 441, it speaks in the last sentence of:

the exercise of restraint . . . the identification of error –

But there is no principle of deference or anything like that. And the reference in the next paragraph to Warren v Coombes is, in a way, curious, because this is a case in which there were no demeaning findings of credit. All of the findings of credit were about things that the applicant said in evidence, real evidence, that is to say, interviews or via the police or walkthroughs and so forth. So we say we can see at the beginning and the end of this judgment, this is how this is characterised, and I will take your Honours in a moment to what Justice Nicholson did.

But in order to show your Honours that, insofar as his Honour engaged with any fact finding here, he was really endorsing what we say was a quite problematic approach by the trial judge, and you see that in a clear way, from our perspective, at page 273 paragraphs 470 and 471. So his Honour speaks of a conclusion as to whether or not:

what happened at the edge of the pond was accidental.

That is:

described as an intermediate conclusion –

But actually, it is the hypothesis consistent with innocence that had to be excluded, and the trial judge made a finding about that, an intermediate finding that it:

was “highly unlikely”.

And our position is that there is no place for that language, and we will see how Justice Nicholson deals with it, if I get to it, in a moment. So our position ‑ ‑ ‑

KIEFEL CJ: Mr Game, is your essential point that Justice Livesey did not deal with the hypothesis of accidental drowning ‑ ‑ ‑

MR GAME: That is correct.

KIEFEL CJ: ‑ ‑ ‑ or is the approach – is it more problematic in the sense it is his approach is wider than that, or the reasons why he did not deal with the hypothesis of accidental drowning.....more broad?

MR GAME: The second, your Honour. Why he did not deal with it. So, what I am saying is ‑ ‑ ‑

KIEFEL CJ: Why do you say that is?

MR GAME: Because he said it is not for us to do that exercise, it is for us to see whether or not there was a pathway to guilt, in effect, is what the reasoning that is flowing through this. So when you get to the very end of the judgment, he is eschewing the whole thing, other than seeing whether or not, looking at the judge’s findings, there was a pathway to guilt, is the language I would use to describe it. And when one sees ‑ and it goes for 120 pages, Justice Nicholson’s examination of the evidence ‑ that is a very different way to approach it, and I will try and take your Honours to a couple of paragraphs to show you how that happens. But the reason I take ‑ ‑ ‑

KEANE J: Mr Game, before you do, looking at paragraph 497 in Justice Livesey’s reasons, is not what his Honour is doing there – I mean, his Honour is addressing the question of:

whether it was reasonably possible that Mrs Dansie had drowned accidentally.

So he is addressing the issue of accident. He says, given the evidence, it was, as the trial judge said, highly unlikely, he calls it an intermediate conclusion, but it is a description of your client’s case that, in the nature of things, it seemed “highly unlikely”, and then there is a reference to all the other circumstances, which his Honour has addressed, including the evidence of the lies about the watch and evidence of motive and so forth.

Is not the point that, in a circumstantial case, what his Honour has done has said, well, your case as to how it happened is highly unlikely, and there is all this other evidence which, when taken as a whole, as one must with a circumstantial case, one can conclude beyond reasonable doubt that it is not reasonably possible that she drowned accidentally. Is that what 497 does?

MR GAME: So, 497, in our submission, portrays error, and what I was just taking your Honours to back at 471 was ‑ and one can chase it through to the other paragraphs ‑ is his Honour endorses that approach, and I will take your Honour to what Justice Lovell did. But what happened when this so‑called intermediate conclusion about it being highly unlikely that Mrs Dansie drowned accidentally, that involves a rejection of the accused’s account, that is to say, his account has been put to one side as rejected at this intermediate point, and there is no place for an intermediate point where one makes findings about whether things are highly unlikely.

But his Honour explicitly approached the matter in that way, and Justice Nicholson specifically eschewed it, and one can see how it produces a different account. And if it was, for example, a jury direction, it would be wrong to suggest that you make some intermediate, or could come to any intermediate conclusion about accidental drowning, so there is a problem that sits quite deeply in paragraph 497.

So I take your Honour’s point, but when one drills down into it as to what actually happened in this case, and I can demonstrate it, I can show your Honours this page. If you go back to Justice Lovell’s judgment, and, as I said before, Justice Livesey in those passages eschews drawing the inferences for himself in explicit terms, if I go back to Justice Lovell’s judgment at page 127, we see, at page 127, that is application book ‑ ‑ ‑

KIEFEL CJ: Are you referring to Justice Nicholson’s judgment?

MR GAME: I am sorry, I have got the wrong page. No, Justice Lovell’s judgment ‑ ‑ ‑

KIEFEL CJ: Yes, sorry, thank you.

MR GAME: My mistake. It is page 127, but it is paragraph 401. At 401, page 127, Justice Lovell had rejected the accused’s account, and that follows an examination of his account at paragraphs 370 and following. And then he makes this finding:

I find that it is highly unlikely –

So he takes that forward, having rejected Mr Dansie’s account at a point of something being highly unlikely, and then pulls in other inferences, and in our submission, it is an erroneous approach to take. So that is why I say it runs – sorry, then one just sees, his Honour then proceeds to the end and concludes, a few pages later, that he is satisfied beyond reasonable doubt.

Now, if one goes to Justice Nicholson’s judgment – then I will run out of time shortly, but if one goes to Justice Nicholson’s judgment, at page 160, 154, we see about the intermediate finding referred to by Justice Nicholson, then in the footnote his Honour refers to the other matters that were drawn into account.

And then we see a point made at 184. Now, there was a specific ground about this, and I am not arguing that, but I am arguing about how one approaches this question, where his Honour points out that if this was done as a jury direction then it would likely lead to error, and he cites Van Beelan explaining why that is so.

It is at 197 that his Honour then deals with the question of whether or not the verdict can be supported, and we see his Honour, and only his Honour, in our respectful submission, actually asked the questions for himself, engaged by M v The Queen and referred to there in SKA, we see it at the top of page 198.

And then when we come to 213, he comes back to this conclusion about “highly unlikely”, and then we see – his Honour does an exercise at 214 and following, under the defence case, which we say is not the exercise
that was done by Justice Livesey, and one sees at 338, importantly, he eschews the intermediate stage of making the finding about something is highly unlikely, and he says the ultimate question:

requires no comparison between alternatives –

So it matters, and then we come to the conclusion at 228, he speaks again of resisting the proposition about “highly unlikely”, and what appears at 380 is an explicit criticism of the way in which the matter is approached by the majority. So the doubt that he expresses – so, his Honour has done the exercise mandated by his.....and we say Justice Livesey has not done the exercise. When he endorses findings, he is endorsing findings, as it were, approving what the judge does as he goes.

So, for example, we saw a little passage where he said the judge made important credit findings and so forth, or the judge made an important finding about this, actually it is ultimately a matter for the Court to determine the question on the sufficiency of evidence. There may be a point at which one says it is hard to know precisely what Justice Livesey did, but it is so imbued with error of principle as to the test to be applied, and one can so clearly see in the judgment of Justice Nicholson the correct application of principle delivering a different result and eschewing this intermediate finding of fact question.

So we say this case raises a question of principle, an important question of principle. We are not asking your Honours to delve through thousands of pages of transcript that deal with the case as a question of principle. This man, the applicant, is in his 70s, he has got a non‑parole period of 27 years, it is quite an important case in those terms. Justice Nicholson’s judgment, in our submission, is hard to fault. If the Court pleases.

KIEFEL CJ: Yes, thank you, Mr Game. Yes, Mr Petraccaro.

MR PETRACCARO: May it please the Court. I apologise, your Honour, I do not have the advantage of seeing the Court, so I am not quite sure which quorum I am before.

KIEFEL CJ: I am sorry, I should have announced that for you. It is the Chief Justice speaking, sitting with Justice Keane, although in different places.

MR PETRACCARO: Thank you, your Honour. In my respectful submission, there is no error of principle in the approach of either Justice Livesey or Justice Parker. In my respectful submission, when one looks at the judgments – to take your Honours first to that of Justice Livesey – on seven occasions, his Honour indicates that he is reviewing – and has reviewed – the evidence, and he says that at paragraphs 416, 425, 473, 476, 483, 491, 506 to 508. His Honour Justice Parker does that on six occasions – at 7, 393 ‑ ‑ ‑

KIEFEL CJ: Mr Petraccaro, I do not think that is the issue that is being raised. The issue being raised is one of the methodology involved in analysing that evidence and engaging with inferences.

MR PETRACCARO: I will take your Honours to it. I just wanted to make the point that their Honours state in their judgments – and particularly his Honour Justice Livesey – that that is what he is doing, he is conducting a review.

And then, if one looks at the structure of his Honour’s judgment, his Honour makes it plain that he has reviewed the evidence and he deals with the adverse credit finding in respect of the applicant, and that is at paragraphs 476 and following, then findings on the balance of the circumstantial case at 486. And he does that, in my respectful submission, after a lengthy review of all the evidence, all the circumstantial evidence, which commences at 473 which is at page 274.

Then your Honours will note there is some 77 subparagraphs where his Honour goes through the circumstantial evidence and that goes through to page 293. Then at 477 to 488, his Honour continues going through the circumstantial evidence and he reiterates circumstantial evidence at 491 to 492 and there are subparagraphs 1 to 6. And then his Honour at 504, page 300, reviews the video and audio evidence.

In my respectful submission, when one looks at it in that way, what his Honour is doing is going through the circumstantial evidence and what he says in the end – and what he says in dealing with the findings of credit and the circumstantial evidence – is that he agrees with his Honour Justice Lovell’s dealing with those items of evidence and the credit of the applicant. He agrees with the inferences that are open and, ultimately, obviously, he agrees that the hypothesis of accident – and there are only two possibilities, either a deliberate push or accident – had been discounted beyond a reasonable doubt.

In my respectful submission, what his Honour Justice Livesey did is entirely a correct approach, agreeance with the findings of the trial judge and the inferences to be drawn and the ultimate conclusion, although the ultimate conclusion is – I withdraw that. With the findings of credit and the circumstantial case, is not an abdication of discharging the appellate function. In my respectful submission – and your Honour Justice Keane in taking my learned friend to paragraph ‑ ‑ ‑

KEANE J: Paragraph 497.

MR PETRACCARO: ‑ ‑ ‑ 497 – I am grateful – really that is an indication of the correct approach by his Honour and his Honour is there dealing with the issue of accident. In my respectful submission, the intermediate finding – if I can put it that way – by his Honour Justice Lovell, and agreed with by the majority that the accident was unlikely, was entirely appropriate. One has to look at the structure of his Honour Justice Lovell’s judgment. His Honour was initially dealing with what occurred at the pond. He dealt with the evidence of what occurred at the pond, the topography of the pond, what the applicant said to police at various stages about what occurred and then what was found in the car – particularly the watch – and said that it was unlikely that the drowning was accidental.

Then, his Honour went through the rest of the circumstantial evidence, being the relationship evidence, the financial evidence, and so on, and then found that the accused was guilty of murder. In my respectful submission, that was a perfectly appropriate way for his Honour to deal with what was a large volume of evidence and it was perfectly appropriate, in my respectful submission, for Justice Livesey to approach the task in the way he did. In my respectful submission, it is entirely, on all fours with Libke’s case and, as that was endorsed, in the case of Pell.

What mattered, in my respectful submission, at the end of the day in this case, was the accumulation of the circumstantial facts. Both his Honour Justice Parker and his Honour Justice Livesey were well aware of that fact. His Honour Justice Parker deals with that at paragraphs 406 to 407 of his judgment. Justice Livesey goes through, in quite some detail, the authorities in relation to dealing with a circumstantial case as a whole at 507 and 464.

In my respectful submission, there is nothing wrong with the approach, there is nothing wrong with their statement of principle, and the points that are being made by my learned friend just do not arise in this case. Those are my submissions, your Honour.

KIEFEL CJ: Yes, thank you. Anything in reply, Mr Game?

MR GAME: Yes, your Honour. So, the problem is this, that although Justice – well, more than one problem, but Justice Livesey having said that he accepts certain factual findings has to bear in mind, centrally, that he has said it is not for the Court of Criminal Appeal to examine defence arguments or inferences. So the acceptance has a superficial quality about it, which is acceptance as a way to reason. It does not bespeak him having
examined the question for himself, and it clearly enough involves a plain misstatement of principle. And one sees, even in the Crown submissions today, that the Crown calls in aid not SKA or Pell or M v the Queen, but one line of Libke that has been taken out of context time and time again. So that is really the issue that is seized by this application, if the Court pleases.

KIEFEL CJ: Thank you, Mr Game. The Court will adjourn to consider the course that it will take.

AT 12.35 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.40 PM:

KIEFEL CJ: There will be a grant of special leave in this matter. Mr Game, how long do you think the matter will take?

MR GAME: Less than a day, your Honour. Maybe a little more than half a day, but less than a day.

KIEFEL CJ: Yes. Mr Petraccaro, would you agree with that assessment?

MR PETRACCARO: I would have thought it would go over half a day, your Honour, there is a fair amount, a fair body of evidence to go through, and the judgments themselves are quite long, with respect.

KIEFEL CJ: Yes. Very well. Thank you for that assessment. Your instructors will be, of course, in contact with the Deputy Registrar about timetables.

The Court will now adjourn until 1.30 pm.

AT 12.42 PM THE MATTER WAS CONCLUDED