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Winner v The Queen S130/1995 [ 1996] HCATrans 136  (15 March 1996)

Office of the Registry

Sydney No S130 of 1995

B e t w e e n -

DAVID COLIN WINNER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 12 NOON

Copyright in the High Court of Australia

MR S.J. ODGERS: May it please the Court, I appear for the applicant in the matter. (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR K. MASON, QC, Solicitor-General for the State of New South Wales: May it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

DAWSON J: Mr Odgers.

MR ODGERS: Yes, your Honour. This application is also out of time, it is also a Legal Aid Commission matter. It is about two months out of time. I can explain perhaps very briefly what some of the problems are. When judgments are handed down in the Court of Criminal Appeal, if they are extempore then the Legal Aid Commission has to wait until they get the actual judgment written up which can take a while. If it is a reserve judgment, then the appellant has gone back to gaol somewhere and if they are in the country it can be a real problem getting in touch with them in order to get instructions, which are necessary before the Commission can proceed. They do not put in applications as holding devices; they wait until they have got instructions, they have got the judgment in a formal form, they then have to get an advice from counsel that there is merit and then they have to get the counsel to draft the documentation. It does seem that 21 days is a big problem, your Honour.

DAWSON J: Perhaps someone should give some attention to it, if the time the rules provide for needs to be extended, because it is impossible to overcome the problems, that is a matter which should be taken into consideration, but it becomes very embarrassing to be sitting here just granting extension of time after extension of time. I appreciate what you say; do not take up any more of your time.

MR ODGERS: Thank you, your Honour. This application raises a question, which we submit is one of general importance regarding the meaning of the concept of relevance and also the concepts of sufficient relevance and remoteness. We say that the only evidence in this case, the only evidence which could have rebutted murder, was not even considered by the learned trial judge and it was wrongly considered, we submit, as irrelevant by the Court of Criminal Appeal.

GAUDRON J: I presume you say this evidence is relevant on the basis of similar facts?

MR ODGERS: Yes.

GAUDRON J: And does it not directly raise - albeit that that was not the way the Crown put its case, but that is hardly relevant when you are seeking to rely on the evidence - reckless indifference to human life? Does it not bring a further element into the case that is against you?

MR ODGERS: Well our submission in respect of that is that he could not have been convicted on the basis of reckless indifference to human life, because as articulated by this Court in a number of decisions, he would have to realise or believe that it was likely or probable that the cyclist would be killed, in a case where he did not intend to hit and in a case where he - - -

DAWSON J: Well that is not - I mean, if he intends to go very close, but just not to hit, why could that not be - - -

MR ODGERS: Yes, but the evidence disclosed that he, on many occasions in the past, had driven at people and missed, not intending to hit and succeeding.

DAWSON J: Just that on this occasion he went too close.

GAUDRON J: And the statistics would have been against him if he had done it many times in the past.

MR ODGERS: Yes, but ultimately, your Honours, that would have been a real - look, it is possible he might be convicted again if that is the question for a tribunal of fact, but - - -

GAUDRON J: But you did not seek to raise this in the trial, and the difficulty that you face, as I see it, is you did not seek to raise it in the trial, one would assume, for the very good reason that it is not in truth exculpatory, or if it is, if there is even a possibility of it being exculpatory, there is an equal possibility of its being inculpatory.

MR ODGERS: Well, in my submission, that is not a proper analysis.

DAWSON J: Why did you not raise it?

MR ODGERS: It was not raised for what I submit were very good tactical reasons.

GAUDRON J: Well that is the problem.

DAWSON J: But this was a trial without a jury, this is a trial before a judge. A judge can deal with alternatives which are inconsistent.

MR ODGERS: Your Honours, the primary defence case was, no intention to veer the vehicle. There were three things the prosecution had to prove: intent to veer the vehicle at 45 degrees; an intent to hit the cyclist and a corresponding intention to cause grievous bodily harm or kill, and the latter was obvious if there was an intention to hit. Now, the defence chose to contest the first element; they claimed that there was a major malfunction in the vehicle. If they had then turned around and said, notwithstanding that, there is all this similar fact evidence which shows that he has done it many many times before, their whole defence on that basis would collapse. It would be tactically a disaster to stress the importance of that. That is my first point.

The second point is that it would be inconsistent with an attack on the credibility of the chief prosecution witness, who had given evidence which was contested, as regarding certain admissions made by the defendant; it would have been tactically very difficult for defence counsel to jump up and say, well we oppose what he says there, we say that is not true, but we want to rely on the other parts that he says.

DAWSON J: It would not be before a judge. I know it would be before a jury, I can understand that, but before a judge alone a judge can discern mutually exclusive possibilities.

MR ODGERS: Yes, well it is an issue of credibility, your Honour. Where you are talking about issues of credibility of witnesses, even in front of a judge alone, in my submission, it would be difficult to say, well we say that is reliable but that is not, we say it is credible there but not here. But notwithstanding that, your Honours, the truth of the matter is, it was not run by defence counsel, but this Court has said on many occasions that that is not fatal and that in a criminal trial, as distinct from civil matters, that if there is evidence which is relevant and which is significant and it is not taken into account, then true it is in jury trials, but criminal non-jury trials are a relatively new phenomenon, but - - -

GAUDRON J: It does not matter - the fact that it is not fatal does not take you the extra distance as to whether or not there was a miscarriage of justice in circumstances in which you say quite frankly, it was a tactical decision not to raise it.

MR ODGERS: It was an understandable tactical decision not to raise it in front of the trial judge and hope, presumably, that the trial judge, if he found against the defence in respect of their primary submission, would then look at it in the context of the second leg of the issue, because their case was, we were negligent, we were not acting in a dangerous unlawful act. If the judge found an intent to veer towards the bicycle, clearly that was much more culpable, and there is no doubt that that is the case here. This evidence strongly supported that level of culpability, but also tended to rebut murder, an intention to hit and, in my submission, it also rebutted reckless indifference, because it is highly implausible that he believed he was likely to hit since he had done it many times before and never hit before.

GAUDRON J: Equally likely that he must have realised the odds were narrowing. If he had done it many times before he must have thought - - -

MR ODGERS: He had done it many times before when he was drunk, as he was very drunk in this case. He had not done it between the ages of 13 and 19. That was the evidence from Burt, their relationship had then split up and there was no evidence as to what happened after that. But it did tend to provide a plausible scenario that he was driving towards, but with no intention to hit, and virtually all the prosecution evidence which the trial judge relied on to support an intention to hit, is rendered equivocal, completely equivocal once you take into account this item of evidence. Our submission is, not only was it relevant but it was very significant in terms of determining the ultimate issue of whether there was an intention to hit. Our position is that - and this is not just something which is of relatively small import in the case - once the trial judge found, as it was highly likely he would, that there was an intention to veer the vehicle towards the boy, there was really nothing to prevent the inference that he intended to hit, because he did hit, he left the scene rapidly, there was no evidence to the contrary of an intention to hit. This evidence created a very real alternative scenario and all we are really asking is for the judge to have considered this alternative scenario when he was looking at the other prosecution evidence, because when you do look at this material which was not considered, it places a very different light on the prosecution evidence.

Your Honours, we submit that it was plainly relevant and that the Court of Criminal Appeal erred in concluding that it was too remote. The Court of Criminal Appeal stated, his Honour Justice Kirby stated, that it occurred many years before; well that was not true. The evidence showed that it last occurred four years before and Burt said it had occurred over many years: "over six years on many occasions". It involved the applicant stealing a vehicle, well that was this case; it involved circumstances where the applicant was always drunk, that was this case; it involved circumstances in which the applicant was with somebody else, that was this case. The similarities are, with respect, very strong.

Now, true it is that in this case he actually struck the boy, but that does not affect the issue at all, because if on previous occasions he had struck boys, then you might say, well that was very strong evidence, he intended to hit, on this occasion. But he had never hit before. So it was the very fact that he had not hit before which supports a plausible scenario that on this occasion what he was doing was repeating his behaviour in the past. Criminal, yes; unlawful and dangerous act, manslaughter, certainly; but not the level of culpability involved with which he was convicted and which he is now serving a sentence of 23 years. Your Honours, there is a huge difference in level of culpability between what he is convicted of and what this evidence tends to support to the contrary.

Your Honours, there is a question of general principle here. If the evidence is relevant - and if your Honours think that it is not relevant then that is the end of the matter - but if it is relevant, and we submit that it is, that it affects the probabilities, it tends rationally to bear on the question of what his intention was at the time he drove that vehicle - veered the vehicle towards the boy, if it is relevant in that sense then we submit that there was no basis for excluding it; that as has been recognised in the new Evidence Act, that there is no discretion - I withdraw that. There is a discretion now in the Evidence Act to exclude defence evidence in a criminal trial - - -

DAWSON J: There is a new Evidence Act?

MR ODGERS: There is a new Evidence Act and it recognises a discretion to exclude - - -

DAWSON J: In New South Wales?

MR ODGERS: Oh yes, your Honour. The Commonwealth Evidence Act has been adopted in New South Wales in September of last year.

DAWSON J: You have labours ahead of you.

MR ODGERS: Thank you, your Honour. The point I am trying to make, your Honours, is that that legislation recognises that where there is defence evidence that sometimes it is of such little value that, balanced against dangers of prejudice and misleading the court and wasting time, a trial judge may, if it is substantially outweighed by those dangers, exclude it. But there is no basis under the Act for saying, well, it is really not sufficiently relevant or it is just too remote, unless you do that balancing exercise. We submit that if you said that that was the correct approach in this case, on no analysis could you justify excluding this material from consideration. It was probative, there was no danger the judge would be prejudiced by it, no danger the judge would be mislead by it. All the judge would have to say would be, "Well, OK, he's done it before but the issue before me", as her Honour Justice Gaudron has put it, "Am I satisfied beyond reasonable doubt that when he drove at that boy he was either recklessly indifferent", even though that was not how the Crown put its case, I might add - - -

GAUDRON J: No, but the fact that the Crown did not put its case that way seems to me to be irrelevant when you seek to rely on this material.

MR ODGERS: Certainly, your Honour, but with the greatest respect, in my submission it is a major leap to the conclusion that, beyond reasonable doubt, he must have realised that it was likely that he would hit that boy, on the material, assuming this prior evidence, assuming his prior conduct. In my submission, this Court should not jump to that conclusion, that beyond reasonable doubt, that was inevitable.

Your Honours, if it was relevant and if the trial judge had considered it, it is possible he might have concluded nonetheless that, beyond reasonable doubt, there was an intention to hit. But virtually all the factors which he took into account which supported his conclusions that there was an intention to hit were rendered almost completely equivocal by this material, by this other evidence.

In the summary of argument we have referred your Honours to those items: the sudden veering of the car, well obviously that is equivocal; the damage to the front left headlight, that is equally consistent with a misjudgment than with intention to hit; the flight from the scene. If he is engaged in this criminality he has clearly committed a serious crime and it is hardly surprising - I withdraw that. It is consistent with lack of intention to hit.

At the end of the day, if you did take into account this evidence, you had the alleged admissions made to Burt, which we attacked in the Court of Criminal Appeal, as really, with respect, the sole basis for a conclusion of intention to hit. So, at the end of the day, if this evidence was relevant, then there was a real risk of a miscarriage of justice, unless the Court concludes that necessarily he was guilty of murder by reason of reckless indifference, and I have sought to explain why that is not an easy conclusion to reach based on the material before the Court.

Your Honours, I do not think I can add any more.

DAWSON J: Thank you, Mr Odgers. We need not trouble you, Mr Solicitor.

This was a trial without a jury. No submission was made that the trial judge could have regarded the evidence now relied on as having an exculpatory effect. The fact that the applicant denied the truth of the evidence was not, in a trial before a judge alone, a sufficient reason for not raising the matter at trial. On the other hand, for the applicant to have raised the matter may have placed him in jeopardy of being found to have been recklessly indifferent to human life, which is a sufficient intent for murder, the crime with which he was charged. Counsel for the defence made a tactical decision not to raise the matter. So much was conceded before us. Notwithstanding Mr Odgers' forceful argument, we are of the view that in the circumstances the trial judge was not in error in placing no reliance on the evidence and no miscarriage can have occurred by reason of his having done so.

There will be an extension of time for the making of the application for special leave but special leave will be refused.

MR ODGERS: May it please the Court.

AT 12.18 PM THE MATTER WAS CONCLUDED