Birks v State of Western Australia

[2007] HCATrans 303

[2007] HCATrans 303

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P7 of 2007

B e t w e e n -

DOUGLAS BIRKS

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 15 JUNE 2007, AT 12.42 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Robert Young)

MR R.E. COCK, QC:   If the Court pleases, I appear with MS M.J. MICHALKA on behalf of the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J:   Yes, Mr Grace.

MR GRACE:   Your Honours, this application raises a short point.  The sole ground of appeal is whether the admission into evidence of the video of the demonstration burn was appropriate in the circumstances of this case.  The evidence of the demonstration burn was led by the respondent to establish that the applicant had lied in the interviews on 20 November 2003 in relation to his claim, which was later disavowed at trial, that he had thrown a lit cigarette into donga C25.

The respondent did not dispute any part of the interviews on 20 November or the answers given by the applicant in those interviews in relation to the applicant’s claimed involvement in the fire.  What was disputed was the admissions as to how he had started the fire.  The respondent’s case was simply that it could not have been started by the cigarette butt, it had to be started by a naked flame.

There was evidence, of course, called by an expert electrician who gave evidence – this was called by the prosecution – to the effect that he could not discount an electrical fault as causing the fire but there was no evidence of an electrical fault.  The expert evidence given by the policeman Tilley was to the effect that the seat of fire, that is where the fire was sourced, was towards the foot of the bed in the donga in question.

HAYNE J:   When the case got to the jury, what was the defendant’s position then?  Was it not, “I had nothing to do with the fire”?

MR GRACE:   Yes.

HAYNE J:   So the earlier suggestion that, “I’d flicked a cigarette butt in” had been disavowed?

MR GRACE:   He disavowed that on oath at trial.

HAYNE J:   And there were some videotaped interviews with him in which the prosecution said there were admissions by him of starting the fire and being responsible?

MR GRACE:   Yes.

HAYNE J:   So what has the expert evidence got to do with the issue the jury had to decide?

MR GRACE:   Because the case for the defence was, in effect, put in the alternative.  The alternative was ‑ ‑ ‑

HAYNE J:   “I didn’t do it but it was an accident”?

MR GRACE:   Yes.

HAYNE J:   Yes.

MR GRACE:   That becomes clear, and I will take your Honours, if I could, to paragraph 51 of the judgment of the court below at application book page 73 to 74.  At paragraph 51 you will see there set out – and I will not read them all to your Honours but there were five stated “differences between the ‘demonstration burn’ and the fire which occurred” on the morning of the death of the deceased.  There was cross‑examination of the expert police witness Tilley and that appears at paragraph 39 at page 64 of the application book.  If I could read from line 30:

The appellant’s counsel cross‑examined him as to the possibility of a fire being started by a lit cigarette in bedding, generally and in the context of the “demonstration burn”:

Is it your evidence that that method of starting a fire is very difficult?---It is very difficult, yes.

But not impossible?---No, it’s not impossible but in this circumstance it is highly unlikely.

So very difficult, highly unlikely in this circumstance?‑‑‑That’s correct.

And not impossible?---No, not impossible.

That, for a fire to start with a burning cigarette on a bed, depends upon a coming together of those three things:  oxygen, heat and material, fuel, in an optimum way.  Is that right?---That’s correct.  For a fire you need those three elements and as I said, we call it the fire triangle.

So before you did this test burn in February 04 in your experience as a fire investigator it always was highly unlikely, difficult but not impossible.  Before you even did this test burn?---That’s correct from my experience, yes.

And so it went on.

KIRBY J:   Can I ask, the cigarette butt was, when the original version of your client’s story was before the police, it was flicked into the adjacent donga, it was not into the actual donga in which the deceased was sleeping?

MR GRACE:   No.  It was an adjoining donga.  No one was present in that donga at the time.

KIRBY J:   No, but it was adjoining and the fire spread from that donga to the donga in which the deceased was sleeping?

MR GRACE:   Yes.

KIRBY J:   He had been at the hotel, had a bit too much to drink, the hotelier let him sleep in the donga and unfortunately it proved his end?

MR GRACE:   Yes.

KIRBY J:   Yes.  There is no question your client was convicted of murder as well as arson?

MR GRACE:   Felony murder, yes.

KIRBY J:   Yes.

MR GRACE:   The issue at the end of the day, realistically, when one looks at all the evidence at the trial, was whether he had the necessary intent, accepting that ‑ ‑ ‑

HAYNE J:   Did he do something to light the fire?

MR GRACE:   Yes.

HAYNE J:   Did he intentionally do something, intending to light a fire?

MR GRACE:   Yes.

HAYNE J:   Yes.

MR GRACE:   Our submission is this, that the evidence of the demonstration burn ought not to have been admitted into evidence because of the dissimilarities between the circumstances surrounding the demonstration burn and the actual lighting of the fire.

KIRBY J:   My understanding is it was received without objection.

MR GRACE:   That is correct but my submission is that the trial judge had an overriding responsibility to determine the admissibility of it before allowing it to be ‑ ‑ ‑

KIRBY J:   Obviously everything is a bit different, a different time, different weather and so on but the notion that it is not relevant is really not very convincing, is it?  At least this is his theory and an ordinary person may never heard of a donga.  I have never heard of a donga before this case and would not know what it was like and would not know what is in it, then these experiments with different length cigarettes thrown into the donga to see if it is really a very flammable environment.

MR GRACE:   But the replication by Mr Tilley, the policeman, did not replicate the donga, it replicated a structure which had sufficient dissimilarities to the donga as not to be a relevant experiment.

HAYNE J:   But the critical thing was could you light bedding?  It seemed to be, did it not, that the bedding was the initial seat of the fire?

MR GRACE:   Yes.

HAYNE J:   And the question was, can you light bedding?

MR GRACE:   Yes.  And the question whether you could light the bedding depended in turn upon atmospheric conditions, oxygen and so on, which are all identified.  I wanted to take your Honours very briefly to two decisions.  The first is the decision of the Full Court of the Supreme Court of Victoria in a matter of Alexander reported in [1979] VR 615. At page 632 at the bottom of the page their Honours in a joint judgment, Justices McInerney and Murphy, say this:

It is essential that before a view, or demonstration or experiment or reconstruction is ordered that there is agreement between the parties or evidence before the tribunal of fact that the conditions presently existing are as they were at the time in question, or that at least any variations now existing are defined in a manner enabling them to be assessed and accounted for, and are not such as might render the view, experiment, demonstration or reconstruction impractical or dangerous.  Impractical or dangerous in this context means that there exists a real risk that the course of justice may be perverted rather than advanced.

The second decision is the later decision ‑ ‑ ‑

KIRBY J:   I do not think we could improve on that statement.  That statement is a good statement of the principle.

MR GRACE:   Yes.

KIRBY J:   The time to be raising these things is at the trial, not saving them up and coming up to the Court of Appeal and then the High Court of Australia.

MR GRACE:   It was raised in the Court of Appeal.  I accept it was not raised at trial.

KIRBY J:   On the contrary, the experiment was consented to and the evidence was admitted without objection.

MR GRACE:   Yes.

HAYNE J:   Trial counsel for the defendant sought to turn it to the advantage of the accused man by pointing out that it must have been something else other than all he had admitted to, flicking a butt end into the donga next door.

MR GRACE:   Yes.

KIRBY J:   Which, by the way, he was no longer admitting to.

MR GRACE:   That is right.  There is a conundrum there, I accept.  However, if it is suggested, as Justice Buss did in the court below, that there was a rational forensic reason for agreeing or consenting to the admission of this evidence, notwithstanding my submission that it was inadmissible ‑ ‑ ‑

KIRBY J:   I know you are a very practical counsel, Mr Grace, though you often bring up some very interesting points and you often get special leave, but the practicalities of this case are, are they not, that this was decided on the interview which your client gave to the police and was recorded and that that is what the jury would really have convicted your client on.

MR GRACE:   Yes, and that is why there is this prominence on this demonstration burn because what it did was, effectively, it negated the defendant’s versions of events in those records of interview.

HAYNE J:   I may be mistaken but, as you know, we sent for the transcript of the evidence of the accused man.  I do not think the demonstration burn

was mentioned at all in it, was it?  The focus of the prosecution case, the focus of the defence case was offstage right from where you would have us look.

MR GRACE:   Yes.

KIRBY J:   Have the five or seven Justices of the High Court poring over something that was quite different from the theory of the case at the trial.

MR GRACE:   Yes.  I was attempting to address the point of rational forensic decision, how could it be ‑ ‑ ‑

KIRBY J:   Yes.  You were trying to make us interested because of the very interesting point of principle in Alexander but, given that we could not improve on what Sir Murray McInerney said, that is not really a good reason to bring it up, especially if it is off in the wings, it is not a central issue, no great drama on the main stage in the trial.

MR GRACE:   Yes, but it did prove, in my submission, ultimately to be right in centre stage as the issue because it set at nought the defendant’s explanation in the record of interview which was the one likely to be accepted that he was involved in the starting of the fire.

HAYNE J:   I am sorry, can you articulate that again because that is the point at which I am having difficulties?  Can you expand on that articulation of why you say that is the central point?

MR GRACE:   As is set out in the judgment of the court below, the defendant was extensively cross‑examined as to the reasons why he said the answers he gave in the records of interview on 20 November were incorrect.  His evidence was effectively destroyed.  His story was destroyed as to issues of pressure, stress, trauma and so on.  The forensic result of that cross‑examination by the prosecutor was that the record of interview was bound to be accepted as the version of events.  That version of events only had a slight difference between the prosecution and the defence.  That version was it was not a cigarette, it must have been a naked flame from a cigarette lighter.  That is how the prosecution went to the jury. 

The demonstration burn then had the most significant impact upon discounting the evidence that it was the cigarette butt.  Given that that is the way in which the trial panned out, the admission into evidence of a demonstration burn, which did not meet the test set out by the Victorian Supreme Court in Alexander, gave rise, in my submission, to a substantial miscarriage of justice.  I cannot advance on that, your Honours, and I otherwise rely upon the written submissions.

KIRBY J:   Yes, thank you very much.

The Court does not need your assistance on this case, Mr Cock.

The applicant, Donald Birks, was convicted of murder and arson following the burning down of a donga, or temporary accommodation, in Western Australia.  The applicant gave interviews to the police, which were disavowed at the trial, claiming that the fire had begun when he flicked a lighted cigarette into an adjacent unoccupied donga from which the fire spread.

At trial a prosecution videotape was admitted into evidence, without objection on the part of the applicant, showing a demonstration burn conducted by police.  This indicated that lit cigarettes of various lengths, thrown into the bedclothes in a donga, did not ignite a fire.  It suggested that, to secure ignition, the applicant had deliberately lit the fire.

The applicant appealed against his conviction.  The Court of Appeal of Western Australia unanimously rejected the applicant’s criticism of the admission of the experimental evidence.  Although accepting that, necessarily and obviously, the conditions of the experiment would to some degree be different from those prevailing at the time of the fire, the Court of Appeal held that the evidence was relevant and probative, suitable for assessment by the jury.  The principles governing the use of experimental evidence are well stated in the R v Alexander [1979] VR 613 per Justice McInerney.

There is no need to grant special leave in this case for this Court to restate what is so aptly stated there.  No error has been shown in the reasons and conclusions of the Court of Appeal.  An appeal to this Court would not enjoy reasonable prosects of success.  Nor do we consider that a miscarriage of justice has occurred.  Special leave is therefore refused.

The Court will now adjourn until 2 pm Eastern Australian Time, 12 noon in Perth.  Adjourn the Court.

AT 12.59 PM THE MATTER WAS CONCLUDED