Birks v The State of Western Australia
[2005] WASCA 230
•30 NOVEMBER 2005
BIRKS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 230 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:64/2005 | 27 OCTOBER 2005 | |
| Coram: | WHEELER JA | 30/11/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted in part | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS BIRKS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Edwards v The Queen (1993) 178 CLR 193 McKinney v The Queen (1991) 171 CLR 468 Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196 Pacino v The Queen, unreported; CCA SCt of WA; Library No 980722; 14 December 1998 R v Baker [1989] 3 NZLR 635 Samuels v The State of Western Australia [2005] WASCA 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BIRKS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 230 CORAM : WHEELER JA HEARD : 27 OCTOBER 2005 DELIVERED : 30 NOVEMBER 2005 FILE NO/S : CACR 64 of 2005 BETWEEN : DOUGLAS BIRKS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
File No : INS 121 of 2004
Catchwords:
Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Leave to appeal granted in part
Category: B
Representation:
Counsel:
Applicant : Ms H E Prince
Respondent : Mr D Dempster
Solicitors:
Applicant : Andree Horrigan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
McKinney v The Queen (1991) 171 CLR 468
Case(s) also cited:
Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196
Pacino v The Queen, unreported; CCA SCt of WA; Library No 980722; 14 December 1998
R v Baker [1989] 3 NZLR 635
Samuels v The State of Western Australia [2005] WASCA 193
(Page 3)
1 WHEELER JA: In relation to this appeal, I heard counsel for the applicant on 27 October 2005, and, because she was in to be in court for other matters on the same day, I was also provided with some assistance by Mr Dempster for the State. Counsel for the applicant has, since that date, provided some supplementary submissions, dealing with matters which arose during the course of oral argument. As a result of those oral and written submissions, I am of the view that leave to appeal should be granted in relation to grounds 2, 4 and 5 of the grounds of appeal. I am not satisfied that grounds 1 and 3 have a reasonable prospect of success, and I would not grant leave in relation to them.
2 Ground 1 asserts that the trial Judge erred in failing to direct the jury as to the manner in which to approach expert evidence and the use to be made of such evidence. This was not a case in which the expert was firmly of a particular view, and nor was it a case in which the evidence was of a highly technical nature, so that it seems to me that the applicant would be unable to demonstrate that there was any real prospect of the jury being overawed by such evidence, or confused by it, or, in effect, deferring to the expert and substituting the expert's views for their own.
3 This case was circumstantial in part and also relied in part upon expert evidence from an arson investigation unit detective relating to the cause of the fire. The expert's opinion was directed particularly to the possibility of a cigarette butt causing the fire in question. That evidence predominately favoured the view that it was impossible for a fire to start in the manner described by the applicant in his video record of interview, but did leave open alternative possible causes of the fire. The expert explained that view in a way which clearly left it open to the jury to evaluate for themselves the cogency of the views expressed.
4 It is not the law that a particular direction must be given in every case in which there is expert evidence. Counsel for the applicant rightly conceded that such a direction would be called for only in appropriate cases. There is simply no material in this case to suggest that it was necessary to give such a direction.
5 So far as ground 3 is concerned, this was not a case in which there was some demonstrable lie told by the applicant, which the jury could have used either in forming a view as to the applicant's credit, or as evidence of consciousness of guilt. Rather, this was a case in which, if the State's case was accepted, the explanation for the fire advanced by the applicant could not have been true. I accept the respondent's submission that the consistent theme of the prosecution case was to the effect that,
(Page 4)
- while the applicant was being truthful in admitting that he had started the fire, he was not being truthful in his account of the way in which the fire started. There was no independent "lie" which the prosecutor invited the jury to consider, as a step in reasoning towards a conclusion of guilt; rather, the conclusion that the applicant was lying was one which would flow only if the jury accepted beyond reasonable doubt, after a consideration of all the evidence, that the prosecution was correct in its assertions about how the fire must have started. It was therefore a case in which no direction as to lies was necessary. Indeed, an Edwards direction (Edwards v The Queen (1993) 178 CLR 193), which the applicant contends the learned trial Judge should have given, would have served only to confuse the jury.
6 Briefly, since the respondent contended that leave should not be granted in relation to any of the grounds, I would give my reasons for granting leave in relation to the remaining grounds.
7 So far as ground 2 is concerned, I accept that experimental evidence must be sufficiently relevant before it can be admitted, and that experimental evidence which is admitted in circumstances where there is not sufficient similarity between the experiment and the alleged circumstances of the offence may be impermissibly prejudicial to an accused. While, as a matter of first impression, it seems to me that any dissimilarities between the experiment and the alleged circumstances were dissimilarities of a kind which made it less, rather than more, likely that the fire had started as alleged by the applicant, so that it is unlikely that the admission of that evidence was prejudicial, nevertheless, it seems to me that the applicant's counsel has pointed to sufficient differences between the experiment and what is known of the circumstances of the offence, to raise the possibility that the demonstration ought not, in the circumstances of this case, have been admitted.
8 So far as ground 4 is concerned, the direction contended for would be an extension of that discussed in McKinney v The Queen (1991) 171 CLR 468. The application of the test of reasonable prospect of success is of particular difficulty where what is sought is some extension of, or development of, legal principle. Accepting that the Court should not stifle development of the law by too readily refusing leave in those circumstances, and accepting that there is a principled argument which the applicant is able to make, it seems to me that it is therefore appropriate to regard this ground as having a reasonable prospect of success.
(Page 5)
9 So far as ground 5 is concerned, the factual foundation for any honest and reasonable mistake is, I accept, extremely slender. It seems to me that the only relevant belief would be that referred to by the applicant at the top of page 16 of the transcript of the video record of interview, where he said, in relation to the cigarette: "I thought it had gone out at first. I think I didn't think anything would really happen, until it started burning then I panicked." All of the remaining answers seem to me to suggest no more than that the applicant had not thought about the matter at all, which would not be sufficient to found a "defence" pursuant to s 24. However, depending upon an examination of the whole of the interview, and an understanding of the answer to which I have referred in its context, that passage may be such as to require a direction pursuant to s 24 to have been given.
10 I would therefore grant the applicant leave to appeal in relation to grounds 2, 4 and 5 of the grounds contained in the applicant's case dated 5 October 2005.
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