Dickinson v The Queen [2008] HCATrans 203 (23 May 2008)

Last Updated: 29 May 2008

[2008] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M114 of 2007

B e t w e e n -

HAYDEN JAMES DICKINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 2.13 PM

Copyright in the High Court of Australia

MR L.C. CARTER: May it please the Court, I appear with my learned friend, MR D.A. DANN, for the applicant. (instructed by Michael J. Gleeson & Associates)

MR J.D. McARDLE, QC: I appear with my learned friend, MR C. BARBAGALLO, for the respondent, if the Court pleases. (instructed by Solicitor for Public Prosecutions – Melbourne)

KIRBY J: Yes, Mr Carter. You need an extension of time. What is the attitude? Is that not true – that you need an extension of time?

MR CARTER: Yes, we do, your Honour. In respect of that we rely upon the affidavit of Mr Goetz filed - - -

KIRBY J: Yes, we have read that. What is the attitude of the Crown to the application?

MR McARDLE: Your Honours, we cannot point to any prejudice as far as we are concerned. On the other hand, we would say that the explanation offered is less than satisfactory.

KIRBY J: You had better deal with it then, as well as dealing with the substantive matters.

MR CARTER: Your Honour wants me to deal further with the question of time?

KIRBY J: Do not take too much time on it, but you will have to deal with it; it is opposed.

MR CARTER: Your Honour, the submission is that, whilst time is to be taken seriously, that it is not out of time by a great deal. It is about two months out of time, I think.

KIRBY J: It was a confusion in your office or it was given to one counsel and he advised the solicitors - - -

MR CARTER: It is paragraphs 9 to 13 of the affidavit at page 321 that dealt with it, your Honour.

KIRBY J: Yes, I remember reading it.

MR CARTER: There is no prejudice and we are about to demonstrate that there is real merit in the application.

KIRBY J: Yes, I read it and I must confess I thought that the Crown would not raise an objection. I think you should spend most of your time on the substance of the matter.

MR CARTER: Your Honours will have read that in the applicant’s trial for the offence of culpable driving by gross negligence, the Crown were permitted to rely on evidence of so-called flight as evidence of “actual guilt” of that crime. I refer to his Honour’s charge to the jury at page 240 of the book, line 27. The court below, your Honours, divided on whether the evidence was capable of sustaining an inference of consciousness of guilt at all. In our submission, your Honours, there is a strong prospect of success on appeal because the dissenting reasons of Justice Eames on this precise point are compelling and his Honour would not have applied the proviso. That is the first reason - - -

HAYNE J: Can we begin with the instructions to the jury because that is where we have to get to, do we not?

MR CARTER: Yes, your Honour. The problem is that it was left as a pathway at all towards conviction of guilt for this crime.

KIRBY J: Very strong directions by the judge to the jury rather indicating that they would not be using this pathway.

MR CARTER: But, your Honour, it is entrenched in authorities, not just in this Court but in intermediate courts, the distinction between a comment and a direction. True it is that aspects of his Honour’s directions were favourable to the applicant, but it did not go so far as what his Honour had contemplated in discussion with the Crown Prosecutor prior to the charge, namely, no one in their right mind could conceive of this as flight, I am reserving the right to take it away altogether.

HAYNE J: Let us read what his Honour said. His Honour said, at line 22 on page 241, that the accused:

actually approached the policemen, identified himself, gave name and address, took the –

PBT. Then you get the direction to the jury. Unless his only reason for leaving was an attempt to avoid identification and apprehension, you cannot use the evidence.

MR CARTER: Your Honour, we accept that the direction is given, but the fact is, as this Court said in Zoneff, in both the joint reasons and in your Honour Justice Kirby’s separate reasons, consciousness of guilt pathways to conviction are not the norm; they are the special case, and this is a case where, in our respectful submission, for the reasons given by his Honour Justice Eames in dissent, it would be rank speculation, fanciful – to pick up some of the phrases of his Honour Justice Eames – to let a jury treat this evidence as being capable of founding an inference of guilt. The fact of the matter is his Honour in the end, despite those favourable observations at 240 to 241, it is left to the jury as a pathway.

KIRBY J: Mr Carter, first of all, I am very affected by what Justice Hayne has said and by the very strong statement, as I read it, of the trial judge, but in my mind it is a fact open to a jury in this case where your client left the scene running, was pursued by police, that the jury might consider that to be evidence of consciousness of guilt. In other words, I rather think you got a better direction than might have been absolutely necessary.

MR CARTER: Your Honour - - -

KIRBY J: I am sorry to - - -

MR CARTER: Your Honour Justice Kirby indicates that the evidence is that he left the scene running. Let us for a moment place that in the context of two things, if I may: one, the evidence of what in fact happened after the collision; and then, two, what were the issues in this trial.

KIRBY J: I agree they were very strong. He stayed, he gave his correct name, he submitted to the test and he appeared to be distressed, but being chased by police from the scene – that is a very strange conduct.

MR CARTER: But, your Honour, what ultimately happened, and the highest the evidence got for the Crown on the question of flight was that about 10 minutes after he became aware that the pedestrian who, after all, had run into the path of traffic and was intoxicated, had died. The evidence was not that he was running away from the scene, your Honour. On the contrary, the evidence – and it is all set out by his Honour - - -

KIRBY J: He was pursued by police, was he not?

MR CARTER: Yes, but initially he was walking away from the scene and a civilian witness, an eyewitness in evidence-in-chief said, at page 66, line 7, of the book, said:

but I wouldn’t say that was an attempt to evade police . . . he basically looked to be - - -

HAYNE J: That is pretty heroic evidence from a civilian, is it not?

MR CARTER:

he basically looked to be grieving and walking up the road, basically in shock or just dealing with the situation.

The evidence of the police officer was that there was some running for a short period after he had walked behind him, but can I take it that your Honours are conscious of the very - - -

KIRBY J: Why should we be mollycoddling the jury from getting that evidence? That is essentially what you argue. You say they should not have had that evidence at all.

MR CARTER: His Honour was concerned about it at the beginning. Now, regrettably, no point was taken by defence counsel although, once his Honour indicated reserving the right to take it from the jury – and, pausing there, we would say that is a misconception because really it is for the judge to determine whether it is probative or not; it is not a matter of delegating to the prosecution whether you want to run it or not.

But the second issue, in answer to your Honour Justice Kirby’s observations, is this. The issues in this trial were confined to two – the evidence of speed, that was the sole particular of driving by gross negligence that was relied upon, and secondly, causation for the obvious reason that the deceased had come into the path. Critically, the applicant did not, by his defence, claim that his driving was blameless. He accepted that he was speeding. The controversy was as to how fast and the estimates ranged from 80 up to 110, and this really brings us to the second point which, in our submission, does justify a grant of special leave.

How is evidence of post-offence conduct, to use the more neutral language of some of the authorities, that is equally consistent with reaction by an accused to a less serious included offence, to be dealt with by trial judges and considered by juries? The basic principle that we contend for is that applied by the Supreme Court of Canada which was followed by an earlier judgment of the court below. The principle in short, and if I may take your Honours to the decision of the Supreme Court of Canada in R v Arcangioli behind tab 6 of our bundle and to the reasons of Justice Major for the court, is to be found at page 145 in the paragraph beginning, “The test articulated”, the third sentence:

Consequently, where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

Justice Major, again delivering the reasons of the Supreme Court of Canada in White v The Queen, behind tab 8, returned to this matter in 1998. If I can take your Honours briefly to that judgment. At page 398, paragraph [21], his Honour states:

Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence.

I do not state or read the balance of that, but at paragraph [22]:

It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error.

Over the page there is reference back to precisely what the principle was that was articulated in Arcangioli, the earlier decision. At paragraph [23], at the top of 399:

Two legal doctrines have arisen in response to these concerns. As a preliminary matter, this Court held in Arcangioli that a jury should not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence and the evidence cannot logically support an inference of guilt with respect to one crime rather than the other.

HAYNE J: But assume that these principles are principles to debate, how would they arise in this case where this kind of argument seems not to have been left alive by the time of charge to the jury?

MR CARTER: Two things, your Honour. One is, in the court below the argument that I am putting was attempted to be raised. The difficulty is that the cases that I have just taken your Honour to were accepted by the court below in the matter of R v Heyes, which is behind tab 4, but between the filing of written submissions in support of the application for leave to appeal against conviction and the hearing, a five-member bench of the court below in R v Ciantar, which your Honours - - -

HAYNE J: Yes, I understand Ciantar may tender some principle questions, but how here - - -

MR CARTER: How it arises is this – this case – in two ways. One, because there was an admission to speeding, this is a situation where the controversy of included offence is engaged and nothing in Ciantar denies the currency of that debate simply because, as my learned friend submits in writing, it was not on the presentment. In other words, some culpability admitted, how can it get you, as a matter of logic, from speeding and some admixture of other psychological explanations of responsibility to culpable driving?

A second reason exists, your Honour. If this Court, on appeal, upholds the approach in Heyes and follows the approach of the Supreme Court of Canada, it would deny the basis for the majority in the court below having determined that the evidence had any probative value, because as his Honour came to say in R v White, just before your Honour Justice Hayne asked me the question, the rule is essentially a matter of relevance and will usually apply in narrow circumstances.

The difficulty is, when one looks, with respect, to judgments of this Court to resolve the problem, it is not an issue that has had to be confronted. Edwards and Zoneff, the two leading authorities, did not deal with the included offence scenario. In each case, however, the question of admissibility of post-offence conduct is assessed on the basis of whether the material, be it lies or flight, is probative of the offence charged.

Now, with respect to the reasoning in Ciantar, it is our submission that Edwards does not stand in the way of this Court adopting, both to give this applicant the prospect of a retrial and also to give guidance to trial judges and juries in other cases, the very simple and clear rule as to relevance articulated by the Supreme Court of Canada and followed, as we have indicated in our written submissions, in Heyes. That is why it arises sharply in this case. True it is that his Honour Justice Eames was able to dissent even within the framework of Ciantar but, in our respectful submission, it would make the pathway clearer if Heyes and the Canadian approach were upheld by this Court.

It is not clear also, your Honours, whether other intermediate courts are comfortable with the bottom line in Ciantar. Could I take your Honours to behind tab 9, a decision of the Court of Appeal in the Supreme Court of Western Australia in Martinez v Western Australia where, having extracted, at page 399, some of the key passages from Ciantar, which appear in his Honour Justice Chernov’s reasons and in particular at the bottom of 399, paragraph 301:

Then (at [72]) the court said:

So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral –

I do not read on, but at the bottom of that paragraph:

Similarly, where evidence of consciousness of guilt, which although by itself equally consistent with consciousness of guilt of an included offence . . . is capable in conjunction with other evidence of sustaining an inference . . . it must be left to the jury.

The Court of Appeal in Western Australia, comprising the President, the Chief Justice and Justice Miller, state at page 400, paragraph 302:

It is, with great respect, not entirely clear what is intended to be conveyed by this last sentence. If the conduct said to demonstrate a consciousness of guilt is capable of relating, equally, to either of two offences, then it is, to use the language of some of the cases . . . “intractably neutral” –

which is a concept borrowed from corroboration cases –

in its effect and it should not be left with the jury as being capable of supporting an inference of guilt of the offence charged.

That very reasoning underpins the way in which the majority were able to reject Mr Dann’s submissions in line with Heyes that this evidence had no probative value in respect of the crime, the charge of culpable driving. The significance of it in this trial was amplified by the fact that there was very little evidence other than the estimate of speed.

His Honour, when he came to pass sentence, indicated that really he would not have been surprised at all if the jury had acquitted, and that is why we say that, even though there are aspects of the directions that were favourable, in the end there was no clear direction to the jury that they could not as a matter of logic use the flight, so-called, as taking them from what he had admitted – that is, speeding – to consciousness of guilt as evidence of actual guilt in respect of the charge of culpable driving.

Now, Justice Nettle agreed with Justice Chernov and we have set out the passages of his Honour Justice Eames that we say, with respect, are impeccable because his Honour says how could it be that this evidence shed any probative light on resolving the controversy as to speed? How could the flight, even if it was that, make him be going faster? Justice Nettle, at page 315 of the book, at paragraph 72, referred to Heyes’ Case which, as I have indicated to your Honours, is the case where Justice Buchanan, with the agreement of his Honour Justice Vincent, indicated that there was no impediment to an intermediate court accepting the holdings of the Supreme Court of Canada.

His Honour Justice Nettle describes this at paragraph 72 on 315 as “this court’s brief dalliance with other, exotic, jurisprudence on the subject”. With respect to his Honour, it is not. It is jurisprudence that provides safeguards to an accused person in the face of juries reasoning impermissibly and illogically in response to overzealous arguments by the prosecution in trials where really they do not have much to go on. So for those reasons - - -

KIRBY J: I have heard Canada described as many things, but rarely as exotic.

MR CARTER: Your Honour, with respect, in Zoneff, which we have included, your Honour specifically endorsed the reasons of his Honour Justice Major – page 259 of your Honour’s reasons, paragraph 63.

KIRBY J: Canada is, of course, a national Code nation; it works under a Code. I do not know whether there is something in the Code that affects this.

MR CARTER: No, your Honour, this is an issue of logic and basic relevance in the law of evidence that transcends anything to do with..... Your Honour, after referring to Justice Windeyer in Woon, is exposing one of the limitations of consciousness of guilt - - -

KIRBY J: Well, I am not all that comfortable about this phrase “consciousness of guilt”. I am not absolutely sure whether I know what it means and I wonder what juries think.

MR CARTER: At paragraph 63 on page 259 of your Honour’s reasons in Zoneff, you specifically approved of Justice Major’s holding that “‘more neutral language’ such as ‘evidence of post-offence conduct’” should be used. What we say to the Court by way of submission is what by way of commonsense can be put against the adoption of what Heyes accepted by reference to the Supreme Court of Canada, bearing in - - -

KIRBY J: Except that you did not really reserve it in this trial; that is a problem for you.

MR CARTER: In the trial it was not reserved because the judgment in Heyes had only come down a few days before the charge. In the appeal it was certainly argued, but of course a bench of five takes over a bench of three in the intermediate court. But if I can take your Honour, just so you know that it was argued below - - -

KIRBY J: It was not argued at the trial. That is the only point I make. It was not reserved or argued at the trial.

MR CARTER: Well, defence counsel, when his Honour indicated that he was reserving the right to take it from the jury, said, at 214 of the book, line 24:

I think I’m right in saying that this still in the photos, in the car was a document with his name and address . . . Now, with all those circumstances, how on earth could he avoid –

This was where the Crown was saying it was capable of suggesting avoiding apprehension and identification. It is just nonsense really on the evidence.

HAYNE J: That is how the judge left it to them. If you think that this man, who had approached police and given his real name and address, left the scene to avoid identification, use it.

MR CARTER: But, your Honour, two things in reply. The distinction between comment and direction – it is still left and that is a distinction that has been regarded of real importance to the administration of criminal justice by this Court. The second point is this. Justice Eames upheld the argument and would not have applied the proviso.

KIRBY J: Mr Carter, I have a lot of respect for Justice Eames, whom I have known for 30 years, and I respect his special experience in criminal trials, which is much greater than mine. But, on the other hand, I note, I think, the majority said that the trial judge was one of the most experienced in the State and when I read the trial judge’s directions to the jury they were very strong directions. I put those two things before you so that you can say anything new that you have not already said.

MR CARTER: Before I come to that, your Honour, I wanted to make it clear that at the bottom of 291 of the book and the top of 292, my learned friend, Mr Dann, specifically argued in the court below that:

the applicant may also have left the scene because of his apprehension of guilt of lesser offences, such as dangerous driving or careless driving –

page 291, line 50. Justice Chernov, at the top of page 292:

It was submitted that the finding of the Court in R v Ciantar left open –

and I am assuming that your Honours have had a chance to see the key passages in Ciantar. What that says is that in a certain range of cases, in a passage that I took your Honours to from Martinez v Western Australia, it will be intractably neutral. The argument that we want to litigate is whether that is going to be the ordinary course in respect of the included offence scenario or the exceptional course, as our learned friends would have it. Your Honour Justice Kirby indicates that reference was made to the experience of the trial judge - - -

KIRBY J: We have to be a bit careful about this because otherwise we get into a battle in cases about who is the most experienced. Leave experience aside; it is just that the directions could not have been stronger, really. I do not think they could have been stronger.

MR CARTER: Your Honour, 311 of the book in the judgment of his Honour Justice Eames, line 60:

The range of alternative explanations for flight provided by the judge was deficient, in my view. Among the other explanations the jury would have to consider and reject –

at the top of 312, and his Honour identifies – I do not for the sake of time read out what is at the bullet points, but we rely on each of those. Also, the point pressed explicitly by my learned friend about awareness of an offence of lesser wrongdoing, there is nothing in those directions at all that explicitly directs the jury in those terms. Ironically, the later case of Ciantar, on the element of directions, would require explicit direction that the lesser admitted included offence be excluded as a hypothesis.

KIRBY J: Now, Mr Carter, you are leaning on the podium which is a sign you are settling in for the duration. I see the lights are on.

MR CARTER: I see the red light, your Honour. Those are our submissions and we rely on what has been put in writing.

KIRBY J: Yes, thank you. Yes, Mr McArdle.

MR McARDLE: Your Honours, concerning the question of time first – that is to say, whether these proceedings are out of time, I do not wish to spend a lot of my opportunity on that.

KIRBY J: I do not think that would be a good strategy for a very experienced counsel.

MR McARDLE: I will move on then. Thank you, your Honour, for that indication. Your Honours, what this application is about, it is submitted, is two questions. One is could what occurred have been an implied admission or evidence of an implied admission? The second one is whether the prospect of other offending having occurred at or about the time of the accident precluded the conventional way of considering implied admissions.

As to the first issue, flight is well established as one of the subdivisions of behaviour which is said to evidence a consciousness of guilt. It is usually as a matter of practice in the area of lies but it includes a variety of other things – for example, suborning witnesses, damaging evidence; and I imagine there are other things as well. So there is no question but that flight is well established as being an example of consciousness of guilt or an implied admission.

Secondly, it does not, it is submitted, depending upon all the circumstances, have to be a sprint from the scene straightaway. What happened in this case was that this accident occurred at the corner of Gipps Street and Hoddle Street. The intersection I mentioned would be familiar to at least two members of the Court – Hoddle Street being a substantial north/south highway, Gipps Street east/west. It happened very early in the morning. The victim appears to have run against some traffic lights and the evidence in relation - - -

KIRBY J: He paused, did he not, he paused momentarily?

MR McARDLE: Yes.

KIRBY J: He paused and ran on.

MR McARDLE: Yes.

KIRBY J: You have to feel a certain sympathy for the motorist.

MR McARDLE: There are other important considerations. If one, for example, was to accept the evidence of the police engineer who reconstructed the accident, he would have it that at the time brakes were applied the speed was 109 kilometres an hour in a 70 kilometre per hour zone. The braking occurred, I think, at about – at least the vehicle was travelling at 90 kilometres an hour at the time of impact. So there are other aspects of it. In addition, it was said that if he was travelling at the right speed in those circumstances the accident would have been avoided, but putting all that to one side.

Post-offence conduct is an area of circumstantial evidence; it is one of the circumstances to be taken into account. Its relevance also depends upon that because what happened in this case was that he waited at the scene for a while, police arrived, emergency services and such, bystanders, but it was some time after that that he asked about the health of the victim. He was told that the man had died and it was within, as best one can tell, about 10 minutes of that that he took off. He took off up a street, a small street that is parallel to Hoddle Street, turned in it – it led nowhere, except to the left – and then down another street parallel to Hoddle Street. It was quite a significant chase. He was, I think – if my memory is correct – tackled by the police in order to arrest him at that stage. It might have started off as a walk away - - -

KIRBY J: The problem is that if one thinks of how one responds to that situation, once he has stopped he did not try to flee the scene. He stopped, he gave his name, he gave his correct name, his address, he waited around and he asked after the victim. Then when he heard this he took flight or he left, walking at first and then running. It is a very strong factual case for, one would think – at least my reaction is that this is a strong factual case of horror at what has happened and what has occurred and trying to get away from it, but that did not recommend itself to the jury.

MR McARDLE: We do not know. The case could have been decided just on the speeding and such. We do not know; we never will know. However, his Honour gave it some consideration, I think over a weekend. The Court would be familiar with it.

KIRBY J: What do you say about Justice Major’s reasons in the Supreme Court of Canada?

MR McARDLE: It is inconsistent with Australian law, it is submitted. There is an extensive discussion of it and the other Canadian cases in Ciantar. At length they are discussed, and in addition in Ciantar there is an examination of decisions of other intermediate appellate courts and it is the view of the five judges who delivered one judgment in Ciantar that the intermediate appellate courts in Australia all side with – if I can describe it as the convention on Australian wisdom.

Now, there might be some cases in which it would be said that it is absolutely neutral – that is to say, there might be a good reason to leave which is of equal balance to that which might be available to incriminate a person. In those circumstances, and in Ciantar it is said that such occasions would not arise very often. This is not one of those because it can be linked to two things at least, or at least to one thing – that is, the revelation to him that this man had died and the matter was serious. To say that a person would run away to avoid a speeding charge is, it is submitted, if not fanciful then a remote prospect, really, all in all. There were no other counts on the presentment. Ciantar was a case that you had other counts on the presentment.

KIRBY J: You are speaking so much about Ciantar you are almost suggesting this might be a suitable case for us to look at Ciantar.

MR McARDLE: I am not making that suggestion, your Honour, with respect.

KIRBY J: I know, I did not think you would be.

MR McARDLE: I am not here to do that. It does not require examination, we would say.

KIRBY J: Ciantar is a very tempting morsel to look at in the light of a five-bench court and looking at the whole issues. Was special leave sought in that case, do you know?

MR McARDLE: I do not think so, no. I think by that stage Mr Ciantar might have finished his minimum term and the case went away. I stand to be corrected about that, but that is my impression. Ciantar may well have been, but, your Honours, there were two other counts in Ciantar – that is, failing to stop at the scene and failing to render assistance. Both, if my memory is correct, are indictable offences.

There are murder cases, such as Heyes, where you have alternatives of murder, provocation, manslaughter, unlawful and dangerous acts, manslaughter and acquittal by reason of self-defence or lack of intent. Those might be the cases – if the Court was tempted to consider it; this is not one. For example, in Victoria there has relatively recently been introduced a law – causing death by dangerous driving – and there is reference to it, I think, at the tail-end of Justice Nettle’s judgment. It was not law when this occurred. The legislative setup appears to be that you cannot have both of those counts on the same presentment.

So now at best it might be said that this man might have been in jeopardy of some summary offences – offences that would be determined in a Magistrates Court, perhaps speeding, perhaps careless driving, perhaps dangerous driving. There was a body of evidence from the passengers in his vehicle about erratic driving for quite some distance prior to this accident occurring – nothing more than that.

Now, if that is the case, accepting the Ciantar-type reasoning, which is essentially that when you consider an item of post-offence conduct, for it to be capable of being an implied admission it has to be judged in terms of the other circumstantial evidence, which would be in accordance with any analysis of the circumstantial evidence case.

That being the situation here, it is clearly linked with the news of the death; it is clearly linked to the death and not with the other prospects of a summary-type proceedings. Other cases might be closer to the mark. Ciantar might even be seen to be closer to the mark.

KIRBY J: Well, we are not going to have a look at Ciantar, apparently, because that has not being brought up here.

MR McARDLE: No.

KIRBY J: The issue is tendered in this case concerning the reasoning of the Supreme Court of Canada. Why would this not be a suitable vehicle to consider the application of what Justice Major said in this Court with, now, the benefit of the Court of Appeal decision in Ciantar?

MR McARDLE: Your Honours, what is said by the Canadian courts, with all respect to them, is not correct because it is, if you like, almost a complete destruction, in most cases, of the use of an implied admission, because it can always be said there is other criminality on the agenda. If it be the situation the Canadian courts say, “Well, if there are two offences” – as the majority in Heyes said – if there is manslaughter or murder or different offences then this comes to nothing. They are absolute, the Canadians, it is submitted; we are not.

We look at it in terms of it being an item of circumstantial evidence to be judged, in amongst other items of circumstantial evidence, as to what its effect is, that it is submitted, your Honours, with respect to the Canadian position, a principled approach in accordance with the notions of circumstantial evidence and how it is to be used.

Your Honour, the references to Ciantar are at paragraphs 39 and 40 of that judgment where what I hope I have put accurately is explained in the course of that judgment. In fact, this case is not entirely inconsistent with Heyes. Heyes was a majority judgment, being Justice Buchanan and Justice Vincent and a dissent from Justice Charles, whose position was similar to that to be found in Ciantar.

In Heyes it was said that there are some cases where the circumstances are such that you can be confident that the admission can be linked to a particular offence. Heyes was quite different from the present one because you had about four different versions of what occurred – either a murder, one of two particular types of manslaughter, or an acquittal – all of the same incident of violence. This is nowhere near that. Your Honours,
I think that that concludes the submissions I wish to make, subject to anything the Court wishes to raise with me.

KIRBY J: Yes, thank you, Mr McArdle. Mr Carter.

MR CARTER: Unless I misheard my friend, he has submitted to your Honours that in the case of R v Ciantar there were lesser offences on the presentment. That is not the case. If Your Honours look at Ciantar, which is in our bundle behind tab 3, at page 39, paragraph 37 of the reasons of the court:

In this case, the issue was whether the applicant was guilty of culpable driving. There were no lesser included offences charged - - -

HAYNE J: That is “lesser included”, but if you look to the headnote you will discover three counts, will you not – one count culpable, one count failed to stop, one count failed to render assistance.

MR CARTER: But, your Honour, the point that I am making is that on the presentment whether they are alternatives or whether they are disclosed by the evidence does not alter the framework of this debate, because the inquiry in the end – and indeed that is consistent with Ciantar in the section on directions, your Honour, at page 52 of the reasons, paragraph 86:

Consistently with Edwards, the judge should direct the jury that there may be many reasons for post-offence conduct –

including –

guilt of some other lesser criminal offence or moral wrongdoing falling short of criminal behaviour - - -

HAYNE J: Does not the debate that we are having indicate the fundamental difficulty about overelaboration and oversophistication of this where the solution lies in the way in which the jury are instructed about how they can use the evidence, and that depends primarily on pinning the prosecution to what they say the argument is. Once that is done then the problems recede at least.

MR CARTER: Your Honour, the one thing that the prosecution, in meeting the argument here, at the level of principle, has singularly failed to do, in my respectful submission, is to articulate to what issue in this trial this evidence was relevant. That is on the first - - -

HAYNE J: That is why the judge’s direction is so important, because the judge did that which one would ordinarily hope might be done by the prosecutor in the course of address – pin the argument to a particular chain of reasoning.

MR CARTER: No, your Honour, with respect, a direction – and I think I have made the concession that aspects of it are favourable comment – does not identify how it is that the evidence is probative of guilt, and indeed there is a deeper question here, your Honour, and it is just a ruling of a very experienced judge, his Honour Justice Coldrey in R v Lee behind tab 5 that your Honours have.

I raise this really to take on my learned friend about this notion that the Canadian law reduces it to nothing. That, with respect, oversimplifies the care that his Honour Justice Major went to in the later decision of White to explain the limited range of circumstances within which this rule of relevance will operate, admitted lesser culpability. His Honour Justice Coldrey in Lee, in paragraph 38 at page 255 – perhaps his Honour was ahead of his time on this – ruled that:

In the course of argument my attention was drawn to the case of R v Gane. In it I ventured the following view in relation to the use of flight as demonstrating a consciousness of guilt . . .

In my view the primacy of the objective element in the offence of negligent culpable driving produces the result that it cannot be the subject of an implied admission of guilt pursuant to the doctrine of consciousness of guilt. This is because the attribution of criminal liability will necessarily depend upon a jury examining the driving itself to determine whether it constitutes a gross failure to observe the standard of care a reasonable man would have observed –

That is the point that his Honour Justice Eames makes in dissent – how could this issue resolve that controversy in coming to a determination beyond reasonable doubt about whether the speed was grossly negligent?

The next point by way of reply, your Honours, is this. Nothing said by this Court in Edwards or in Zoneff is inconsistent with what has fallen from the Supreme Court of Canada in arguing Côté and White and in Heyes in the earlier decision of the court below. The rule is a rule of relevance. Edwards and Zoneff were directed towards the narrow range of cases in which post-offence conduct, in particular, lies in those cases where no question of included offence arose in the gross indecency in Edwards or the false pretences that was Zoneff.

In my respectful submission, and mindful of the caution about overrefining directions in this area, this is an argument of basic relevance that is confined to a situation – lesser included offences admitted – which, whilst narrow in its formulation, is one that has practical currency in criminal trials throughout the country on pretty much a daily basis and it is an issue that warrants the attention of this Court. It has had the attention of another final court and it is decisive of the ground of appeal that we wish to litigate on behalf of the applicant. If the Court pleases.

KIRBY J: Thank you, Mr Carter. The Court will adjourn briefly to consider the course it will take in this application.

AT 2.55 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.59 PM:

KIRBY J: Having regard to the terms in which the trial judge directed the jury about whether and when the applicant’s conduct, after being told of the death of the pedestrian he had struck, might be used as evidence of an admission of guilt, we are not persuaded that the actual decision of the Court of Appeal of the Supreme Court of Victoria is attended by such doubt as would warrant the grant of special leave.

The applicant contended that that court’s decision in R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 presented some questions of principle suitable for consideration by this Court. Some of the reasoning in that decision was considered by the Court of Appeal of the Supreme Court of Western Australia in Martinez v Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389. However, in our opinion, this case would not be a suitable vehicle for exploring any
such question.

The applicant also relied on the reasons of Justice Major in the Supreme Court of Canada in R v Arcangioli [1994] 1 SCR 129 and White v The Queen (1998) 125 CCC (3d) 385. There are dangers in overrefining the requirements for judicial directions on issues such as consciousness of guilt. In any case, the principles stated by Justice Major in those cases would not, in our view, arise because of the narrowness of the issue that was ultimately left for the jury’s decision in this case.

Although the Court would extend the time for the bringing of the application, the application for special leave is refused.

The Court will now adjourn to be reconstituted for the remaining two matters.

AT 3.01 PM THE MATTER WAS CONCLUDED