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High Court of Australia Transcripts |
Last Updated: 22 March 2016
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S171 of 2015
B e t w e e n -
KAYLA McMASTER
Applicant
and
STATE OF NEW SOUTH WALES
Respondent
Office of the Registry
Sydney No S172 of 2015
B e t w e e n -
JUSTIN McMASTER
Applicant
and
STATE OF NEW SOUTH WALES
Respondent
Office of the Registry
Sydney No S173 of 2015
B e t w e e n -
GEORGIA KARAKIZOS
Applicant
and
STATE OF NEW SOUTH WALES
Respondent
Applications for special leave to appeal
BELL J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 11.32 AM
Copyright in the High Court of Australia
____________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.C. SHELLER, for the applicant in each matter. (instructed by Greg Walsh & Co)
MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR T.O. PRINCE, for the respondent in each matter. (instructed by Makinson & d’Apice)
BELL J: Yes, Mr Jackson.
MR JACKSON: Your Honours, it is accepted that the fate of the claims of Kayla McMaster and Georgia Karakizos – that is S171 and 173 – is dependent on the success of the application of their brother and son, Justin McMaster in 172.
Your Honours, this is a case where, it is submitted, in setting aside the decision of the primary judge, the Court of Appeal did not take into account all the evidence before him, evidence which he had accepted. Your Honours, there are issues arising from that but may I deal first with that aspect? Your Honours, the events in question are set out in our written submissions at page 234, paragraphs 1 to 20. I do not think I need to take your Honours through those.
BELL J: No.
MR JACKSON: The trial judge had made findings which appear, relevantly, in three places. First of all, page 32 in paragraph 176 through to 178. Then, paragraph 199 at page 38 and paragraph 203, again at page 38. Your Honours, they were – and your Honours will forgive me if I use some old expressions – they were findings made by a judge who had seen and heard the witnesses give oral evidence and they involved deciding what parts of the evidence of the various witnesses should be accepted. There was, however, one obvious error in the statement of the facts found by the judge at page 32, paragraph 177, and it was in subparagraph (11) where he said that the primary – sorry, where he said - - -
GORDON J: This is the eastern versus western gutter.
MR JACKSON: Yes, eastern versus western. He said that they were “standing towards the western gutter”. It was clear the reference should have been to the eastern side. Your Honours, it may be helpful if I give your Honours copies of - - -
BELL J: Yes.
MR JACKSON: - - - exhibit 3 at the trial as it shows where the places are. Your Honours will see from that that Holmes Street goes – the north end of Holmes Street is actually at the bottom of it - it goes to the southern end where there is a T-junction and your Honours will see that on the corner is number 2, next to it is number 4 where there was the home invasion, next to that number 6 and next to that number 8.
It was clear that the reference was wrong because the houses on the eastern side were numbered 2 through to 8, the lower numbers being at the southern end. The evidence was that the police vehicle travelled south along Holmes Street and stopped at number 8 or, perhaps, at the boundary between 8 and 6. Your Honours will see that in the primary judge’s statement of the evidence at page 4, paragraph 5, about line 33 and at page 18 in paragraph 91.
BELL J: Are you taking us to these to propose that when his Honour referred to the western gutter it was, as it were, a typographical error?
MR JACKSON: Yes, in fact, your Honour.
BELL J: I understand.
MR JACKSON: It had come about, your Honour, largely because the photographs are not done in a north-south way.
BELL J: Yes.
MR JACKSON: Your Honours, we went through some detail in the Court of Appeal about precisely how it happened but that seems to be the essence of it. Could I just say this, your Honours? Once one makes the correction from western to eastern in subparagraph (11) on page 17 – I am sorry, in paragraph 177, page 32 – it can be seen, in our submission, that the primary judge has accepted the oral evidence which was given by Constable Kleinman and her evidence is referred to by his Honour at page 25, paragraph 139. Your Honours will see, in the first part of paragraph 139, that she said:
When shown the DVD of the “walk-through” –
This is after the event:
Constable Kleinman agreed that she was standing towards the side of the road near the driveway to number 6 Holmes Street. She was not in the middle or close to the middle of the road. She did indicate that Constable Fanning was standing behind her and to her right.
Your Honours, if one goes back then to page 32, subparagraph (11), your Honours can see that that appears to have been an acceptance of the evidence in the passage to which I just referred. Your Honours, as appears at subparagraph (28) of paragraph 177, the judge also appears to have accepted the evidence of Constable Kleinman, which appears at page 25 - - -
BELL J: This is of Justin slowing down?
MR JACKSON: Yes, your Honour.
BELL J: Yes.
MR JACKSON: That is in paragraphs 136 to 137.
BELL J: Accepting that, when one looks at the analysis in the Court of Appeal, upon a review of the evidence, Justice Beazley concluded that, accepting Constable Kleinman’s account of Justin McMaster having slowed down, did not alter the view that her Honour took of what the evidence established.
MR JACKSON: No, your Honour. I appreciate that. What I was going to say was that – if I could just say one thing before getting to what the Court of Appeal did, your Honours.
BELL J: Yes, yes, I am sorry.
MR JACKSON: I did say this, that the finding that she was standing near the gutter and not in the middle of the road appears to have been, in the end, critical to the findings made at 176 to 178 and also in the other two paragraphs that I referred to, 199 and 203. Your Honours, in the Court of Appeal, that issue was dealt with by the Court of Appeal at page 119, commencing at paragraph 112 and going through to paragraph 122.
The essential reasoning, your Honours, is at paragraph 122 at the bottom of the page of the same number and, your Honours, it appears to turn on two things. One, that our side had accepted that the judge meant eastern when he said western and, secondly, what is described as being the evidence of all the witnesses, except for the mother. Your Honours will see that is the evidence which placed Constable Kleinman further from the gutter than Constable Fanning, being the evidence of all the witnesses except for Georgia.
Your Honours, could we say two things about that? The first is that it was not the case – and I will come to it in just a moment – that the evidence of all the witnesses except for Georgia was to that effect. The second thing is that no reference is made by her Honour as to Constable Kleinman’s own evidence as to where she was which was not to that effect. As to the first of those, if one looks at the evidence of Kayla, that is, at paragraph 101 at page 116, you will see that she said that of the two police officers, Constable Kleinman was closer to the gutter. That that is so, appears from the recitation of her evidence at page 10 by the primary judge at paragraph 39 where she said:
The female Police officer was closest to the gutter, but standing on the road.
You will see, your Honours, if one goes to the – your Honours, that evidence is, with respect, quite inconsistent with the view expressed at 122 by the Court of Appeal that Kleinman was further from the gutter than Fanning. So far as Jasmin Potts was concerned, she said nothing about that issue and your Honours can see - - -
BELL J: Mr Jackson, the judgments in the Court of Appeal involved a careful review of the evidence. What is this leading to? Are we to have another go at the facts of who was closer to the gutter?
MR JACKSON: Your Honour, could I just say this? One does start with the proposition – I do not mean to be in the slightest degree offensive in saying this - that there are cases where the Court, by reason of the circumstances of the particular case and the manner in which it has been dealt with, grant special leave.
GORDON J: Assuming that is right, Mr Jackson, and there is no doubt that that may be able to be stated, would the result be different here?
MR JACKSON: Yes, it would, your Honour.
GORDON J: How?
MR JACKSON: It would be different, your Honour, in that the issues that were the ones that were dealt with by the Court of Appeal were ones that were, in our submission, decided, first of all, erroneously as to those core findings of fact in the paragraphs that I have mentioned. If one adopts those findings of fact, then all the other matters that were relied on by the Court of Appeal fall away because they are based on an erroneous view as to the facts.
Your Honours, if one goes to the very simple matters that I have referred to already, a core feature was where was Constable Kleinman? The findings at the paragraphs to which I referred are based on that. The Court of Appeal set aside those findings in circumstances where (a) it did not take into account her own evidence and (b) it erroneously stated what was the evidence of other witnesses was.
BELL J: Where the Court of Appeal proceeded upon an acceptance, as I understand it, on your client’s behalf, that there was an error of a significant character in relation to where the constables were standing. I understand you put it, as it were, a typographical error but that does not necessarily appear to be the way it was put below.
MR JACKSON: Well, it was, your Honour, with respect. It was put that it was an error that was made and it was consistent with all the other findings, including where the police vehicle was and the rest of the evidence that when he said “western” he meant “eastern” and the whole thing hangs together on that assumption.
BELL J: It is just I was looking at application book 120, paragraph 114:
The respondents accepted that Constable –
I am sorry – no, I am looking at the wrong – I think you took us a moment ago to - - -
MR JACKSON: Application book 122, I think.
BELL J: It is 122. I am sorry, on application book 122, at paragraph 122. In any event, yes.
MR JACKSON: Your Honour, what I was going to say was this. I was going to say if one looked at the evidence that is referred to in paragraph 122, the evidence of Kayla was to the contrary of what is said by the Court of Appeal. If one looks at the evidence of Jasmin Potts, she said nothing about the relevant location. Can I just give your Honours the reference?
BELL J: Jasmin Potts was somewhat behind, was she not?
MR JACKSON: Yes, yes, and she said about the topic.
BELL J: Yes.
MR JACKSON: It is true that Constable Fanning’s evidence was that Constable Kleinman was closer to the middle of the road and, your Honours, whilst it does not appear clearly from the Court of Appeal’s reasons, we accept that it does appear from the trial judge’s recitation of the evidence. You will see that at paragraph 99, page 20 and paragraph 112, page 21. The evidence of Georgia – which was discounted by the Court of Appeal – was, as they say, to the contrary effect because she said they were standing, I think, on the grass just near the gutter. Could I just say this? The aspect of the matter, namely, where were the police officers at the relevant time, was critical to all the findings made by the primary judge and your Honours will see that refers, particularly, to paragraph 177.
BELL J: The primary judge did not accept a view that Justin was running towards the police officers at the time. Is that right?
MR JACKSON: Yes, it is.
BELL J: And the Court of Appeal reviewing the evidence set aside that finding and that supported the Court of Appeal’s conclusion, amongst other things, that at common law Constable Fanning was acting in self-defence and would have available the defence of necessity.
MR JACKSON: Yes, yes, your Honour, I accept all that. But, the point I am seeking to make about this is simply this. In reviewing the decision of the primary judge, the Court of Appeal itself was in an error that was significant. In the finding by the primary judge as to the location of Constable Kleinman was one that affected all the matters that are in paragraphs up to 204 of the ones I have mentioned plus paragraph 204. Paragraph 204 includes - your Honours, that is, I think, about page 38 or 40 – the contention which was being advanced that Constable Fanning had acted out of self-defence in relation to Constable Kleinman.
BELL J: Yes.
MR JACKSON: It was held that was a post-event justification. Your Honours, if there was error by the Court of Appeal, its views on those issues skewed its views on the other issues which followed from that. Your Honours, could I just say that one can see that from looking at the paragraphs following paragraph 123. In the first place, after disregarding Georgia’s evidence in paragraphs 115 to 117 at page 121, and one sees also paragraphs 123 and 124, the President then went on to say in paragraph 125 that the critical question was the distance between the applicant and Kleinman, Constable Kleinman, and that the judge has not made a finding on that question. Your Honours will see that in the opening part of it.
BELL J: Yes, yes.
MR JACKSON: Of course, his Honour, in fact, had made a finding, correctly, in our submission. He had not made a finding in that respect because he did not need to accept – he had not accepted the assertion that Constable Fanning was acting in self-defence of her. If one goes to the reasons of Justice McColl - - -
BELL J: Yes.
MR JACKSON: - - - they are based on the same misconception, page 176, and I refer your Honours to paragraphs 352 and 354. In paragraph 352:
nevertheless, because Constable Kleinman was positioned more towards the centre of the road than Constable Fanning –
And at paragraph 354:
it is manifest that, contrary to the primary judge’s finding . . . he posed a threat to Constable Kleinman.
Your Honours, a similar situation obtains in relation to Justice Meagher’s reasons at page 179, paragraph 363 and you will see the first four or five lines.
Your Honours, to put it shortly, we would say the – and, your Honour, I have to say the case so far. It was a case where the trial judge gave consideration to the evidence of each of the witnesses. It was inherently a case where the findings of fact would depend on the reliability and probability of the oral evidence. The findings were clear and based on evidence and the Court of Appeal’s setting aside of the judgment was based on a misconception of it.
Your Honours, we would also say that if one goes to page 128, paragraph 143, the Court of Appeal held that Constable Fanning subjectively held the view that the applicant was a real threat to Constable Kleinman. That depends, in part at least, on the positioning of Constable Kleinman. But, it also depends on the suggestion that it had never been put to Constable Fanning that he did not hold the belief that he claimed and that does not, with respect, sit well with the recitation of the evidence by the primary judge at, first of all, page 22, paragraph 117 and at paragraphs 120 and 122 on the same page.
Your Honours, I was going to go on from there to the Court of Appeal’s finding as to self-defence at common law. Your Honours will see that the findings made by the Court of Appeal on this issue can be seen – if I could abbreviate what I wanted to say, your Honours – at pages 136 and 137, at paragraphs 180 and 184. These two depend on the view that he was acting in defence of Constable Kleinman.
BELL J: Yes.
MR JACKSON: Your Honours, I see the time.
BELL J: Yes.
MR JACKSON: Your Honours, I otherwise rely on our written submissions.
BELL J: Thank you, Mr Jackson. Yes, Mr Kirk.
MR KIRK: Your Honours, it emerges clearly, with respect, from my learned friend’s oral submissions that no issue of principle is sought to be raised in relation to what might be called the first half of the case – the common law aspect. I accept my friend does seek to raise an issue of principle about section 52 of the Civil Liability Act. I will deal with that very briefly.
BELL J: Yes, but he has to succeed on the first to get to the second. I think we understand that, Mr Kirk.
MR KIRK: I will say nothing more about it. My learned friend spent the great majority of his time dealing with the admitted error. The admitted error – western, eastern – did make a very significant difference, in our respectful submission, which was accurately caught by her Honour Justice McColl at pages 176 to 177. I know your Honours have been to it but if I could just go back to one part of paragraph 352. The first sentence:
Once it [is]accepted, as all parties do, that the police officers were standing towards the eastern gutter of Holmes Street, the dynamics of the situation changed.
They changed in this way. Looking at this map of this picture – so, the police are facing down the street. If I can point that way and pretend I am the police officers and your Honours are in Justin’s position. The western boundary – because I am facing south – west is over there, east is over here. They pulled over on the eastern side. It was accepted by the primary judge that Kleinman was to the right. So, if I am Fanning, there is Kleinman.
BELL J: I think the basic dynamics we can grasp. The point, as I understood, that Mr Jackson was raising was that if one reads the primary judge’s factual findings, one can discern that when he said “western” he was not, in fact, misapprehending the evidence. It was simply a slip. Now, was that the way the matter was argued?
MR KIRK: I accept that it was put below that it was a slip.
BELL J: Yes.
MR KIRK: That is how my put it in the Court of Appeal. I accept that. The Court of Appeal was not persuaded by that and, indeed, ironically, the very evidence of Kayla that my friend takes you to illustrates that point. If your Honours go back to page 32 in that list of 28 factual findings, number (11) is the one with the error.
BELL J: Yes.
MR KIRK:
Both Constable Fanning and Constable Kleinman were standing towards the western gutter of Holmes Street. Constable Fanning was in front of, and to the left of Constable Kleinman.
Kayla’s evidence, which my friend took your Honours to at page 116, paragraph 101, was that:
Constable Kleinman was closer to the gutter.
That makes sense if we are speaking about the western gutter. So the gutter is there and there is Kleinman and here is Fanning. It does not make sense on the true position which is they are closer to the eastern gutter. So, in fact, the very evidence my friend takes you to undermines the point sought to be made.
GORDON J: Does that sit with 122, though?
MR KIRK: Sorry, your Honour.
GORDON J: Paragraph 122 on page 122 that Mr Jackson places great weight on and that is:
that Constable Kleinman must have been standing towards the centre of the road.
That is the paragraph upon which he seems to place most weight.
MR KIRK: First, it is consistent and points to them being towards the centre of the road because if they are on the left-hand side of a suburban street and there is a group of them – because there is the mother, Georgia; Kayla, the sister; Fanning; Kleinman – the position of the two women is not entirely clear and there was screaming and all sorts of things going on at the time. But there is this group of people here on the left-hand side of the road where Kleinman is over on the right-hand side. So that tends to place her towards the centre.
But can I make this further submission to seek to place all of what my friends have said orally and in writing in context. With great respect, there is a significant air of unreality about all of this. If your Honours go to what Fanning said, which is quoted in Justice Meagher’s judgment at page 180 - this is an extract of his oral evidence in the trial - the point I seek to make is that one should not get caught up in the precise details too much here. Just before the indented bit, last sentence:
I’ve allowed him to get within 2 to 3 metres of Constable Kleinman, which for me was further than I would have allowed someone normally.
He’d breached the 7 metres that we are taught, and I suppose I was waiting for a reaction also from my partner, who I knew had a taser, and there was no response . . . As he’s got closer and closer, I’ve then thought very loudly in my head, “I’m going to have to shoot this bloke.” It was a last resort, because I reasoned within myself that, if I don’t stop him, he’s going to seriously injure my partner or even kill her.
That was the practical reality which Constable Fanning was faced with. Now, can I then take your Honours to a part of Justice Beazley’s reasoning at page 124 to again illustrate the real world context of this terrible situation? At paragraph 128, after all the analysis about distances and placements and all the rest of it, paragraph 128, her Honour referred to two further related reasons:
First, both police officers independently and, virtually at the same time, perceived a threat sufficient to cause each to draw a weapon, Constable Fanning his gun and Constable Kleinman her taser.
Fanning did not have a taser. So they are both doing it. Fanning gave evidence to very similar effect because she perceived a threat. Secondly, at paragraph 129, her Honour makes the point that:
this finding required his Honour –
and I interpolate to note, as did the oral evidence I have just taken your Honour to of Fanning:
to expressly reject the evidence of each of the police officers on this point. He did not do so. Nor, in my opinion, was there any reasonable basis upon which –
to do so. It was not a matter where it:
might have been unreliable. It was evidence of what they perceived in a set of circumstances where each knew a serious assault had taken place, where each knew a knife was involved . . . a male person was running towards them –
et cetera. Your Honours know the basic facts.
BELL J: Yes.
MR KIRK: To then go to the core findings in the trial judge’s judgment at page- - -
GORDON J: Page 32.
MR KIRK: Actually 38 I wanted to take your Honours to now, but thank you, your Honour. Paragraph 199, in the second line:
Further, Constable Fanning, by shooting Justin McMaster, was not defending himself or Constable Kleinman. He shot Justin McMaster because he failed to respond to the command of Constable Fanning to stop.
So that is critical to his Honour’s reasoning. With respect, it does not make sense because it, to misuse the phrase, begs the question, why would Fanning have been concerned about him failing to stop? There is no hint of a suggestion of any personal connection or motive or knowledge or ill will or anything like that. He is in an extreme situation. Why would he want him to stop?
There was evidence at the criminal trial, which was in evidence here, that Justin said he was running towards his sister, Kayla, who he had seen being terribly assaulted, who was part of this group. What else would he be doing? He was running towards her. The trial judge himself referred to him acting courageously to try and save his sister – where he is running towards the group, where the two police officers are protecting the group. To say that it was just some formality about him not stopping does not capture the reality of it. Then at the bottom of paragraph 203, at the bottom of the page:
His evidence to the effect that he acted out of self-defence in protection of Constable Kleinman was a post-event justification of his actions.
With respect to the trial judge, that was a quite unfair statement. There was no conceivable suggestion, as I put, for any other reason than a decision made in extreme circumstances and good will to act protectively. No other possible motive was there. As President Beazley noted, it was never squarely put to Fanning that he did not hold the belief claimed. Your Honours will recall at paragraph 176, page 32, just before the list of 28 points, his Honour found:
Each of the witnesses were doing their best to recall events which were highly traumatic. None had his or her credit successfully impugned.
All of this, in our respectful submission, needs to be judged in a manner Justice Heydon said in a related context – which we have quoted in our submissions - the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.
Now, the actual complaints made in the written submissions are about five factual points which my friends say should have been taken into account. Can I take your Honours to one of those? My learned friend did not take your Honours to any of them. Can I take you to one to show that even if these five points had been taken into account, it would have conceivably made no possible difference.
One of the points my friends raise – so if your Honours go to page 238 of the application book, paragraph 34 of my friends’ primary submissions – they raise four points said to emerge from Kleinman’s oral evidence and I will just go to the fourth:
she was four metres away from the applicant when he was shot -
and a reference is given to transcript. Your Honours find that reference at page 255 of the application book. It is lines 40 to 44. If you go to those lines:
Q. Would you agree with me that for you have been 4 metres away from Mr McMaster, if he was shot in the middle of the road, if you had been in the gutter . . . that would have been about 4 metres from Mr McMaster?
A. I’m not sure. I’m not very good with distances.
That does not support the point that is sought to be made. The reference to “4 metres”, incidentally, is actually a reference back to the ERISP – what Kleinman had said in her interview the next day where she was interviewed by the police.
So, to suggest that the Court of Appeal should have made particular reference to that answer cannot make good the plaintiff’s case. The other points are of similar nature. For those reasons, your Honours, it is put as a visitation case. To so put it requires a minute analysis of the facts. But, in fact, what the Court of Appeal did is exactly what they are required to do. They considered all the evidence carefully. Evidence said not to have been considered would make no difference. If it please the Court.
BELL J: Thank you, Mr Kirk. Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Our learned friend has referred to page 180 and, in particular, to what was said in paragraph 365, around line 40.
BELL J: Yes.
MR JACKSON: Your Honours, that does assume that that evidence had been accepted and it does not appear to have been by the primary judge. The second thing is - - -
BELL J: Did not the primary judge make a finding that the witnesses were, all of them, endeavouring to do their best, given the urgency of the circumstances?
MR JACKSON: I am sorry, I just did not quite catch the first part of what your Honour said.
BELL J: Did not the primary judge make a finding that the witnesses were doing their best in the urgent circumstances?
MR JACKSON: The finding I was referring to, your Honour, was – it is a question of what the perception of the best was, if I can put it that way. What I mean by that is that what the primary judge said was that he did not accept that the view that the shot was fired to protect Constable Kleinman was the view that was held at the time. Your Honours, that appears, I think, at paragraph 203 at the bottom of page 38.
BELL J: Then, we come back to this question of whether the constable was actually challenged in terms that this was an ex post facto reconstruction.
MR JACKSON: I think I took your Honours to a number of paragraphs in relation to that. Maybe one might put it this way or that way but it is pretty obvious that the question was being put to him. Your Honours, our learned friends went, I think, to paragraph – perhaps, I should go to paragraph 199 where your Honours will see that, also, the primary judge said Constable Fanning was not defending himself or Constable Kleinman. He shot him because he failed to respond to the command of Constable Fanning to stop.
Our learned friend says this is all a big drama and so it was, but one does have to bear in mind that to pull – to take out the pistol and then to discharge it is something which is a very responsible act. Anyone with any experience of firearms and weapons knows that they can cause terrible damage if fired and they have to be fired at a time when it is appropriate to do so.
Your Honours, we would submit that it is a case where the Court should entertain it. It is one where there are errors going to the heart of the matter in the Court of Appeal and they affected the setting aside of the primary judge’s judgment in this very significant way.
BELL J: Thank you, Mr Jackson.
We are of the opinion that if special leave to appeal were granted the appeal would have insufficient prospects of success. Special leave is refused with costs.
AT 12.07 PM THE MATTER WAS CONCLUDED
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