Farquharson v The Queen [2013] HCATrans 182 (16 August 2013)

Last Updated: 21 August 2013

[2013] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M19 of 2013

B e t w e e n -

ROBERT DONALD WILLIAM FARQUHARSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 12.21 PM

Copyright in the High Court of Australia

MR P.J. MORRISSEY, SC: If it please the Court, I appear for the applicant. I appear with my learned friends, MR C. MYLONAS and MR T. KASSIMATIS. (instructed by Theo Magazis & Associates)

MR P.B. KIDD, QC: If the Court pleases, I appear with my learned friend, MS K. ARGIROPOULOS. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Thank you. Mr Morrissey, it seems to me that a focus of your argument will no doubt be on whether there was a viable manslaughter case and perhaps we can, subject to what else you want to say, focus on that.

MR MORRISSEY: Yes, that is what I meant to focus upon, if the Court pleases. Your Honours, the term “a viable case” is nowhere defined but, in my submission, the correct approach to it is that set out at paragraph 12 of our outline and it is that articulated by the Court of Appeal in Gill which is consistent with pronouncements of this Court previously and it is:

(W)here the charge is murder and where upon one possible view of the facts it would be open to convict of manslaughter instead of murder, it is an appealable error for a trial judge to fail to leave manslaughter to the jury as an available alternative verdict, notwithstanding that: (a) manslaughter would not have been open on the version of facts contended for by the defence; and (b) competent defence counsel may have made an informed decision at trial to abstain from seeking an alternative verdict of manslaughter –

Indeed, I point out that in some cases it appears to have been done in the teeth of a request from defence counsel specifically not to do so. That was not the case here. If I might make one other preliminary comment and that is our paragraph 13 mentions the modern rationale for the rule to be found in Gilbert v The Queen:

This is an age of concern for the victims of violent crime, and their relatives.

This is the very case, as the Court will appreciate, without me taking it any further, which raises that issue. This was a very emotional and harrowing case. It could not be viewed otherwise.

Therefore, in considering whether or not there was a viable case, we invite the Court to have regard to the one possible view of the facts that the applicant put forward before this Court in summary form at pages 718 through to 720 of the material. Because this was a very lengthy trial with a great deal of circumstantial evidence of various sorts, the materials were put before the Court in this form in the hope that it will assist to have a large picture view of otherwise disparate material culled from many witnesses and the references have been given there. We do not understand them to be controversial in any way and I mean to address on the basis that you can accept them.

Your Honours, it is plain that Mr Farquharson, the applicant, did suffer from a relevant medical condition at the time of the collision. “The collision” is the neutral term that was used at trial. I mean to use that for the incident involving the deaths. We have set out the materials that support that in the table.

BELL J: When you say “suffered from a medical condition”, you were referring to evidence that he had consulted his doctor, I think, first on 18 August in relation to a “nasty pharyngitis infection” and then he had been prescribed a course of antibiotics. He had returned on 23 August still suffering the effects apparently of that condition and been given a second course of antibiotics and told to come back in two days in the event things did not improve. As it turned out, he did not return. He remained off work until 28 August and then he returned and he worked for the following week with a continuing problem with a cough. Is that a fair summary?

MR MORRISSEY: Your Honour, correct, yes, with respect. I am referring globally to the condition that is observed by the many witnesses and to which he himself attested. It is not possible to attach an accurate diagnostic label to whatever that was on 4 September. What can be said is he was seen to be sick and tired in a context where continuity dictates it was a related condition. We do not seek to plead that he suffered a particular, specific condition.

BELL J: Accepting that cough syncope is a possible view, on the evidence, of a condition that he suffered from, he did not know that at the date of the collision, so when one comes to look to the evidence that possibly might leave open a conclusion that there had been such a gross falling short of the standard of care expected of a reasonable person, one is looking at a person who has had some form of chest infection that has been quite persistent, nasty cough and makes the decision to drive in those circumstances. Is that fair?

MR MORRISSEY: No, your Honour. We would seek to put it more broadly than that. The term is “cough syncope” and he did not know that he had it. It is not an ongoing condition or a disease. It is simply, as the evidence demonstrated, a syndrome. It is a condition that occurs. What he knew and what we advance and what we are seeking to prove by this chart is that he suffered from a condition, whatever it was, that rendered him a dangerous driver - in other words, that created a risk, not limited to cough syncope, not limited to a complete blackout but a condition that rendered him a danger on the road of the relevant standard that rendered him negligent in the Nydam sense.

So what is put is not that he was a certainty or a likelihood to suffer this catastrophic condition, accepting the hypothesis, as you do, on the one.....that is available, but rather that driving in the condition that he did, there was a sufficiently high risk that he would cough and compromise himself so that he would become dizzy or very dizzy or faint or suffer a grey-out or a near loss of consciousness or suffer, in fact, what he did suffer - a complete loss of consciousness on the day.

BELL J: Well, he did not previously experience a loss of consciousness, so - - -

MR MORRISSEY: There was a terminological dispute as to what it was that he suffered at the roadhouse on the 30th – I know I can take you to some evidence about that in a moment but not only was he objectively a danger, we would submit, or at least a jury would be – when I put these matters positively may I – rather than apologising each time could your Honour take it that I am prefacing it with “on one possible view of the facts” on each occasion. But here, what was apparent was that he had – he did have the condition. He did have sore lips. He did have – he had suffered on his own account from dizziness. Could I address – could I take you to the passage at the bottom of page 718 and you will see there that he says and the jury could accept:

I’d get a bit dizzy –

This was the effect of his coughing fits -

I’d get a bit dizzy, I’d have to lean on the bed –

At 3906 he had become “very dizzy” -

when I cough really hard I can get a bit that way –

He said it happened more at night time. That is a relevant circumstantial fact. When he was speaking to Mr Greg King, a witness in the case, in exhibit W, he described that as “fainting”. Now, we would submit that even without the two.....incidents that were witnessed that that was enough. That takes him beyond the mere tired driver or fatigued driver. That he is a person who, because of his condition, whatever it be, was likely to cough and to cough hard and to become dizzy or faint and that imperilled road users or passengers or himself, driving in a condition where he was likely to become dizzy.

We do not need to be limited to that in this case but I would submit that that is enough to allow a jury, remembering this will always be a jury question, but it would permit a jury to find that he had been negligent to the requisite standard. However, it is apparent that there is more and, of course, there is the incident witnessed by Mr Bushell – so I take you to the middle of page 719. Here, he had a coughing fit which impaired his consciousness for a couple of minutes. Now, in exhibit Z, that is the police record of interview, there was a series of questions where questions were put to him there and it was put to him based upon that at the trial that the coughing was so severe, the fit was:

so severe that it caused you to end up, your motor vehicle to end up somewhere you didn’t want it to move?---That’s right. I had continuous coughing.

Now, he described that particular incident as one where he was “very dizzy”. He described regaining his senses and I have interposed the comment here that that plainly is perilous to other road users. It does not need to be shown that he was suffering from a syncopal attack. It is sufficient that if he is driving at 100 kilometres per hour within the speed limit on the road with his three children in the car that that is a perilous state to be in. That state will suffice. That incidence alone, in my submission, will suffice but I add it to the pre-existing dizziness. He was, of course, told by Bushell, to whom he narrated that, that he should not be driving.

FRENCH CJ: Are you doing anything more – I am not trying to, in any sense downplay it, but are you doing anything more in this application than asking this Court in the end to form a different view of the facts in relation to a viable case of manslaughter than that formed by the Court of Appeal?

MR MORRISSEY: We are not agreeing that the Court of Appeal did form a view of it. They have addressed the matter incorrectly. So we are - we are inviting you to come to the view there is a viable case but could I take you to paragraph 122 of the judgment?

FRENCH CJ: Yes.

MR MORRISSEY: What the court had to consider was whether a jury, on one view of the facts, could have found negligent manslaughter and what the court did was to find that, on the view of the facts it took, the evidence did not approach that level. In other words, the court has not addressed the question of whether a jury, taking a different view to the court itself, could have come to that position. They simply have not faced that. My learned friend’s submissions represent that they did, but a fair reading of it, in my submission, is otherwise.

BELL J: A fair reading is they cited Nydam and the high test that Nydam poses and expressed the view that the evidence at trial did not approach that level. It is another way of saying it would not have been open to convict on manslaughter on that body of evidence, is it not?

MR MORRISSEY: With respect, if your Honour has regard to paragraph 131, it makes it clear that that cannot be right. In my submission, even without 131 we would submit, no, because we would submit that the court has taken its own view rather than that of a notional jury looking at one view of the facts. But having regard to 131 here, it is said:

If a request . . . had been made, the judge would of course have considered it.

Now, where it is clear, as your Honour posited, that could not have been said because it was not open to consider it the court has erred and that is a submission that we make. The court has addressed the wrong test. So in answer to the previous question, we are doing more – we are attempting, endeavouring to do more.

BELL J: The test is the Nydam test - - -

MR MORRISSEY: Yes, it is.

BELL J: Do you accept that another way of looking at whether there was a viable case is if a court were to conclude, had the jury been directed on negligent manslaughter and returned a verdict for that offence, it would inevitably have been set aside as unsupported by the evidence?

MR MORRISSEY: That is the correct test. That is the test, your Honour, which encompasses all of the adjectives that are used by way of fanciful and so on.

BELL J: So when one looks at it, one is looking here on the evidence at an incident which deprived the applicant of the capacity to voluntarily conduct the vehicle at the point the vehicle entered the dam. It is well recognised that in the period immediately before that one can look to all the circumstances and conclude that there is a sufficient causal connection between driving, say, in an excessively tired condition when one knows or ought to know that one’s capacity is compromised, and the loss of conscious awareness associated with sleep to found liability. You really do need to concentrate on what, in these circumstances, on the Nydam test - - -

MR MORRISSEY: Yes, I do, your Honour, and I would be - we are at that point. Your Honour, what it was on the day that constituted that level – so it is being put in the same way, analogous to the “tired driver” cases such as Kroon or Jiminez - obviously they apply different – slightly different standards, each one applying State legislation. But in each case, the evidence that justified convictions in those cases was far weaker than what was present here.

In this case, what was present is that on the day Mr Farquharson drove as he did, he had worked seven straight shifts. He worked for seven days coming back from illness. He was seen to be tired, by Cindy Gambino, his former wife. He was seen by Mr Hart, as evening approached, and this is at page 418, he approached Mr Hart and invited him to come for a drive and to come for tea. Hart said this – “I said, ‘Do you really think you should be going?’ because he did not look well to me.” That was Hart’s perception and also Hart’s warning. This is on the very evening that he set out. Upon arriving in Geelong, he saw his sister, Kerri Huntington, and if I could just take you to what Huntington there observed. It is at the bottom of page 719:

“Well, he didn’t look well. He was coughing and I’m like ‘Are you all right?’ Like ‘Have you been to the doctor, what’s he doing? Should get a second opinion. I don’t think it’s working.’ And he said he’s got it under control.

“He wasn’t getting any better.

He then set off that evening in the cold air, being tired and sick, with the children on board, driving on the public highway. Now, he was then asked questions by the prosecutor which adverted to – unfortunately, I split the - - -

BELL J: Just before you get to that Mr Morrissey, after leaving Geelong, I think he went to Mount Moriac.

MR MORRISSEY: Correct.

BELL J: Where he was seen by his sister at the K Mart, is that - - -

MR MORRISSEY: He was seen by his sister at the K Mart in July - - -

BELL J: Then went to her - - -

MR MORRISSEY: Then went en route to Mount Moriac on the way home, stopping - he stopped, he was seen briefly by Gary Huntington who said he saw that he was tired and noted nothing much more.

BELL J: Did anyone see him at Mount Moriac?

MR MORRISSEY: Mr Huntington, Gary Huntington saw him briefly. He stopped in, picked up a football for use the next week and moved on from there, having been seen by Huntington.

BELL J: Was there some evidence about the distance from Mount Moriac to Ms Gambino’s home in Winchelsea?

MR MORRISSEY: No, there was not.

BELL J: Any evidence about the sort of time that it would take to travel that distance?

MR MORRISSEY: No, I do not believe there was time – I think it was done on a commonsense sort of a basis, your Honour.

BELL J: I raise the matter, Mr Morrissey, because with some of the tiredness cases, take Jiminez, to embark on a trip from the Gold Coast to Sydney at one in the morning and take over driving at three when you have only had four hours sleep in the previous 24 hours is one thing. To speak of a person being tired at the end of work and then embarking on a trip if it is not of any great length may raise very different considerations in terms of the Nydam test.

MR MORRISSEY: Your Honour, I take the point but the issue here is that it is – this is not simply a tiredness case, although, you would not remove tiredness. It is not simply an analogy with tiredness, but tiredness is a factor that goes along with the coughing. The nature of peril that Farquharson was in was that he would cough so it was a – this was not like a tired driver who might drift off or might have some warning as to what would happen. He was on notice that he would be gripped by coughs because he had been two days before. He had been at work in front of Bateson. He had been at the roadhouse on the 30th. He was on notice that he might get into trouble quickly, unlike a tired driver. He was clearly on that notice and he was told that.

This is a case where the notice was a lot more expressed than the usual situation. He was told by Bushell and told by Hart, what are you doing. Your Honours, the prosecutor put these questions to him and I will just take you to these because it demonstrates the sort of punch that this evidently had at trial. It is not an artificial, belated thought. This is at page 3930.

I am putting the full passage of cross-examination which I cut up on page 720 of your materials: “If you really thought - from what you are saying, even though you have been to the doctor a couple of times, you were far from being well, were you not, in the days leading up to the death of your children?” “Yes, I still was a bit unwell. Yes.” I am stopping here. I wish to make two points from this passage. The first is that the prosecutor was prepared to make these points as telling points. The second is the admissions that are elicited in the passage:

“You would have been very conscious of the fact that the coughing was a real problem for you?---It was, yes.”

That is an admission upon which a jury could choose to act -

“And that it had affected you twice within the space of three days in quite a serious way?---That’s correct.”

“And yet you simply continued to drive, and to have your children in the car, correct?---Ah, only the once, yes.”

“Sorry.” “Yes, only the once.” “Driving from Winchelsea to Geelong to Mount Moriac back most of the way to Winchelsea with your three children in the car?” Answer: “That is correct.” You can see the rhetorical point that was being made but you can also see why. “Presumably, with the knowledge that if you coughed something terrible might happen.” I do not need to submit that is special leave on its own, of course, but that is our submission and it was put by an experienced prosecutor advisedly because it was a good point to make. “Beg your pardon?” “Presumably you had the knowledge or the belief that if you had another coughing fit something terrible might happen to you and the children?” His answer to that was: “Well, I didn’t think that would happen.” That is his answer but it was put – but the learned prosecutor - - -

BELL J: What the learned prosecutor put is one thing, what is relevant for your purposes today is the answer.

MR MORRISSEY: The answer is relevant but it is the colour that was realistically to be put on the situation - the prosecutor’s question simply illustrates how, realistically, a high standard of negligence can be made to fit with the admitted and proved conduct and condition of Farquharson at the time.

BELL J: But the evidence was that he did not, at the time, have that apprehension. Is this a submission that any person who has had a nasty chest infection and has a lingering cough, including a couple of bouts of really severe coughing, is not to drive a motor vehicle?

MR MORRISSEY: In an individual case a jury, on one view of the facts, might take that view. It is not to be taken as far as your Honour’s

submission. If, on the facts of an individual case it is unrealistic, so be it, but the submission does not - - -

BELL J: What I am looking at is, if you were appealing against a verdict of negligent manslaughter - - -

MR MORRISSEY: Yes. It would be a lost cause because the case against Mr Farquharson is eminently stronger than the case against the tired drivers whose convictions were upheld – Franks - I appreciate the differences, but we have pointed out in our submissions and unless it helps your Honours I will not take you back to what is written there, but those cases were abstracted and critiqued to show that very thing that in those cases – I mean, in Jiminez the evidence was a jury was entitled to infer, albeit that – it was not said the jury was disentitled to infer guilt in that case based upon nothing other than the fact that he went to sleep and that stray comment made in Jiminez that “I was thinking about stopping at the next town and the heater was on”. There was not much to go with but it was enough because it is a jury - - -

BELL J: Well, it was the four hours’ sleep in the previous 24, I think. The decision to drive from the Gold Coast to Sydney starting at one and taking over the driving at 3.00 am in that background - that, combined with the remark that he had been thinking of stopping at the next town, provided, it might be thought, the relevant matrix.

MR MORRISSEY: Your Honour is, with respect, correct but my submission is it compares very favourably to Mr Farquharson’s situation where he has had two bad coughing fits, one at the wheel where his consciousness was significantly impaired just before. Mr Jiminez did not have to contend with that, nor did Franks, nor did Mr Rudebeck. In each of those cases – anyway, I am sorry, your Honour I think I have - - -

FRENCH CJ: You have gone past sunset, Mr Morrissey. You are well past sunset. The Court will adjourn briefly to consider what course it should take.

AT 12.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.50 PM:

FRENCH CJ: We will not need to trouble you, Mr Kidd.

In our opinion special leave should be refused. The application for special leave depends upon acceptance of the proposition that evidence at trial would have required the trial judge to direct the jury that a verdict of manslaughter was open. Contrary to the submissions of the applicant, the Court of Appeal of the Supreme Court of Victoria held, in effect, that the evidence did not disclose a viable case of manslaughter. That conclusion is not attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused.

The Court will adjourn to 1.30 pm.

AT 12.51 PM THE MATTER WAS CONCLUDED