Bufton v The King

[2022] HCATrans 198

[2022] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2022

B e t w e e n -

JANICE BUFTON

Applicant

and

THE KING

Respondent

Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 11.30 AM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MS A.K. BRENNAN for the applicant.  (instructed by Victoria Legal Aid) 

MR C.B. BOYCE, KC appears with MS S.C. CLANCY for the respondent.  (instructed by Office of Public Prosecutions (Vic))

GORDON J:   Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, the force of this application arises from what is, of course, the application of well‑understood law concerning the common form appeal on the ground of an unreasonable verdict – to use shorthand – and it is not suggested that there is any error of law concerning basal principle to be detected in the Court of Appeal reasons.

GORDON J:   It is simply visitation?

MR WALKER:   I was about to say, to an extent, then, it is necessarily a visitation case on the basis that, in our submission, there is a disquieting possibility that a person who should have acquitted was not.  However, there is this extra element.  As your Honours are aware, there have always been – with more or less significance in terms of frequency of resort – provisions for the reception of evidence, notwithstanding that either a document cannot be cross‑examined, of course, or a missing or dead witness cannot be cross‑examined.

However, the use of such evidence on critical questions has never been, of course, a day‑to‑day occurrence in the courts, not least because there is an ultimate defect in the accusatorial system if critical evidence cannot be tested by a defence.

Now, the law, of course, has both by statute and common law and common sense, attempted to deal with that problem by warnings and cautions to juries, and this is not a case that raises any question of doctrine or practice in that regard.  However, it is a case apt for special leave, notwithstanding its visitation quality overall, because it arises out of the striking circumstance that the evidence upon which the Court of Appeal has dismissed the ground below, which is the only ground we would seek to ventilate in this Court, does depend upon Mr Weston, the man who had died before the trial, whose recollections had been recorded and was available to the jury in that form.

GORDON J:   It is a bit different, is it not, in relation to Mr Weston, slightly.  I mean, one understands that issue, but here – it may be something which you rely upon, I do not know – you have got recordings, both in audio and audio and visual.

MR WALKER:   Yes, and indeed I do rely upon it.  Your Honour anticipates my next point.  In short, this is not just, from days gone by a record of interview or a police statement.  This has what I will call the verisimilitude of a spoken statement, a recollection given by somebody who can be seen, visually recorded, giving the recollection.  As your Honours appreciate, there is nothing like convincing evidence in‑chief, and as we would say, there is certainly nothing like evidence in‑chief never tested in cross‑examination.

It is for those reasons, in our submission, that this is a case which, in the application to these peculiar circumstances, forensically created by the misfortune of Mr Weston’s death, that the application of the well‑understood principles in the common form appeal tradition have plainly gone awry for these reasons.

On any view – including one which has been canvassed more or less thoroughly by their Honours in the Court of Appeal – Mr Weston’s recollection was defective.  Of course, we do not put an application on the basis that what is probably the near‑universal phenomenon of defects in memory is enough to render a verdict unreasonable, that would be absurd – bearing in mind that nobody is perfect, least of all giving testimonial recollection of such awful events as occurred on this day.

But the errors in particular focussed on matters from which an inference as to criminal intent was obviously – had to have been drawn by the jury.  Without descending into the kind of speculation about how the jury might have reasoned, of a kind which, in our submission, is open to some criticism of the Court of Appeal’s approach, we do say this:  on any view, there must have been considerable weight given to the version advanced by Mr Weston that we have attempted to summarise in paragraph 11 on pages 105 and 106 of the application book.

I do not need to rehearse the detail.  The highlights, in particular, include the assertion that our client had steered the motor vehicle so as to follow Mr Snooks after he had run onto the grass, and that she was steering, or appeared to be steering:

intentionally at Mr Snooks because she veered straight out onto the grass and there were dead straight tracks, no wobbly‑ness about them –

We know that Mr Hardiman’s expert and unchallenged tracing of the physical marks of the car’s traversing do not accord with that.  I do not need to go into details, suffice it to say there were movements which were entirely consistent – I do stress consistent – with the version advanced out of court and available to the jury by our client, namely that she was attempting to – so to speak – outflank Mr Snooks so as to get to the gate before he did.

Now, whilesoever one can see that Mr Weston’s evidence was defective in that regard, there has to have been doubt cast upon other aspects of his credibility – and by credibility I mostly include questions of reliability.  Of course, he could not be questioned – and I do not wish to trespass into areas that would have required him being challenged in cross‑examination.  But your Honours appreciate that he had a connection with Mr Snooks, and that there was – perhaps unusually – real‑time audio of the event that is the collision itself.

That real‑time audio does a number of things.  The first is, it is really the only source of an actual – that which was plainly available, without any real contest, for the jury to find, namely that a horn – the horn – had been sounded – and there can no question that means sounded by our client.  There is no suggestion that that is evidence from which, in itself, any criminal intent could be inferred, particularly as one of the most obvious and instinctive reasons to use a horn is to warn of something which you wish to avert.  That is the first thing.

Now, Mr Weston does not recall that.  The brake lights are the same.  Mr Weston does not recall the brake lights, and the attempt by the Crown in this Court to reconcile that is a matter of, in our submission, speculation highlighting the impossibility – removing reasonable doubt in the absence of cross‑examination of Mr Weston on such matters.

We then come to something as important, in terms of possible confessional use, namely an allegation of murder by Mr Weston to our client, in a passage that he vividly recalls for the jury in his recorded evidence, but of which there is no trace whatever in the real‑time parallel available recorded triple‑0 call.

That is enough, in our submission, to raise for any hypothetical cross‑examiner – had Mr Weston been available for cross‑examination – obvious, concrete and likely fruitful avenues for testing.  For testing in particular so as to show the extent to which there ought to remain unresolved doubts concerning the reliability of the central assertion that our client appeared to be aiming directing at Mr Snooks.

GORDON J:   Mr Walker, accepting that those matters are – I will put them neutrally – differences, do you have a response to the respondent’s argument that is set out at paragraph 6 and following, that, in effect, this submission starts at the wrong premise?  In effect, that the balance of the evidence – this not probably the way to put it – but the evidence which they have identified and then set out at paragraphs following, in effect is the right starting point and then it tested Weston’s evidence against that – the argument is to be construed and looked at in that manner?

MR WALKER:   The answer to the argument that commences on application book 128, in paragraph 6, and following, is, with respect, that it is factually unsound.  Mr Hardiman’s evidence is not at all tending one way rather than the other.  It is perfectly equivocal concerning accident or deliberate intent to bring about a collision.  Nothing in his evidence – nothing at all in his evidence – tends to skew the balance one way or the other.

In other words, each is a perfectly consistent possible outcome.  That is the forensic significance of saying that something is “equivocal”.  More would be needed in order to enlist the consistency, say, with guilt so as to produce a verdict beyond reasonable doubt and it is simply wrong to say that Mr Hardiman’s evidence does anything to exclude “accident”.  It does not even take a step in that direction.  That is because, obviously enough, the version of driving down the drive so as to skirt around Mr Snooks while he was on the drive so as to get to the gate is entirely consistent with the sequence of deliberate steering that is to be inferred from – which Mr Hardiman, himself, inferred from his observations – matters that we embrace, which simply do not fit a scenario at aiming at a person.  That is the first point.

The second point, obviously enough, is that Mr Hardiman’s evidence included the concession to which we may have made reference and which the Crown dealt with at trial and on appeal in a way which should ring alarm bells.  The concession was that – to put it in a nutshell – if things had been – as the Crown case had to have it be – namely, deliberate steering at the man who was moving in order to hit him – then the physical signs that it is Mr Hardiman’s metier and expertise to detect and to draw some inferences from, would have been different.

Now, at the trial, that concession in cross-examination was not the subject of any attempt that – and if he had been properly available – of explanatory re-examination.  Instead, a criticism – not merited, in our submission – of Mr Hardiman in this respect was essayed by the Crown in both courts below to the effect that that was, so to speak, unhelpful and puzzling evidence.  One does not have to be a cynic to say that it is truly only unhelpful if one took the view, which is that not, I know, how my learned friend would approach the matter, that evidence that tends to exculpation is unhelpful.  It is all just evidence and for the jury’s consideration.  It is for those ‑ ‑ ‑

GORDON J:   The difficulty I have is that we have got the circumstantial case; therefore, we have to got to look at the whole of the evidence.

MR WALKER:   Yes.

GORDON J:   You do not, properly, if I may say so, challenge the direction given by the trial judge to the jury that they were to express or exercise caution in relation to the evidence of Weston by reference to the substance of it, and assessment of it, and his demeanour in the video?  Then, on the other hand, the inconsistencies between the evidence of Mr Hardiman and Mr Weston really are at the heart of the matter, are not they?

MR WALKER:   Yes, they are.  And, your Honour, we do offer this case for special leave, stripped of any highly particular circumstances from the forensic course, such as might have if there had been persistence in any criticism of directions.  This is, in our submission, an important visitation case, plus a case with implications beyond its own facts concerning witnesses on critical matters who cannot be cross-examined, because, in our submission, without such an opportunity for testing, it is only by a means of speculation – that is, without there being a reason to do so, that one could suppose that the jury could reject as eliminated beyond reasonable doubt the possibility – and we only need the possibility – of accident. 

It is for those reasons, of course, as both sides well appreciated at trial and in the Court of Appeal, there was a critical need to consider in all of the circumstances, that the evidence constituted by the out of court statements attributed to or recorded and played to the jury by our client, and of course, the out of court statements paced before the jury from Mr Weston.

EDELMAN J:   Mr Walker, ultimately what the question would be for this Court would be, having regard again to the same exercise that the Court of Appeal went through to look at all of the material including the recordings, whether or not there was a possibility that there was no intent, having regard to all of that material.

MR WALKER:   . . . . . the possibility, yes.

EDELMAN J:   What your submissions really come down to is that if there is a sufficiently strong case, having regard to an overview of the material without yet looking at the recordings, that this Court should engage in the full exercise.

MR WALKER:   Yes, it is not that the full exercise, however, ought to be regarded as dauntingly imposing.  The record is a compact one and concerns, as we all know, tragically, a very short interval of time.  This is not a case where there would be any possibility of the reasonable doubt raised by the possibility of accident being negatived by anything in what I will call the prior relationship evidence.

Relevant circumstance, but not in itself enough to demonstrate that available, readily available, inferences of accident from the combination of Mr Hardiman, Mr Weston’s obvious and demonstrable errors, and of course, for what they were worth, the near‑contemporaneous protestations by our client, raising an issue, leading or raising a possibility, and then having this Court ask:  what is it in the record and according to admissible reasoning by which the jury could have regarded that possibility as eliminated beyond reasonable doubt ‑ ‑ ‑

EDELMAN J:   I certainly was not suggesting that there would be anything daunting in the task of engaging the whole of the record.  This Court has taken on cases where there is a strong suggestion of a miscarriage of justice where the record is far, far more daunting than a case like this.

MR WALKER:   Quite so, your Honour.  May I try to make that point a bit differently.  We do not suggest that there was that well‑known category of error committed in the Court of Appeal of regarding the jury as properly proceeding by simply preferring the missing witness, Mr Weston, to the accused, whose statement is in evidence but who does not give evidence, a version on these peculiar forensic circumstances of a witness versus witness contest of a kind that is well understood to be fallacious and to misrepresent the nature of the issue at a criminal trial.

We do not suggest that, but there is, in our submission, more than an element in the explanation given by the Court of Appeal of how the jury might have proceeded, which involves the notion of, as it were, preferring Mr Weston, even though Mr Weston is demonstrably incorrect on matters which are not peripheral but which are central.

It is for those reasons, in our submission, that when one looks at the unchallengeable and unchallenged forensic expert’s evidence, Mr Hardiman’s evidence, and sees the complete consistency of that evidence with the hypothesis of accident, that one asks how could the jury, without there having been an opportunity to evaluate Mr Weston’s reliability and credibility after testing, possibly have rationally eliminated the possibility of accident, and it would involve speculative consideration

by the jury of what Mr Weston might have answered had he been asked certain questions.

That, in our submission, is a dangerous route to the upholding of a jury verdict in the fact of a reasonableness challenge because it encourages the notion at the appellate level of proceeding in just the way that the jury is constantly and correctly directed they must not proceed, namely, by speculation in the absence of evidence and, in particular, speculation about what a witness who could not answer might have said if he or she had been available to answer.

It is for those reasons, in our submission, your Honours, that there is this combination of a powerful visitation element in this case, the most serious offence, and, as well, matters which are very likely to have resonance beyond this case concerning the impact on proper jury reasoning of evidence available to the jury, but not able to be tested as to, in particular, its reliability.  May it please the Court.

GORDON J:   Thank you, Mr Walker.  Mr Boyce.

MR BOYCE:   Thank you, your Honours.  Can I just commence, if I may, by correcting something that I thought I heard my friend submit concerning the content of the triple‑0 call and Mr Weston’s response to what he had seen.  At least as I recollect the submission that was made, and as recorded – I think it is page 74 of the application book – I think it is pretty clear that Mr Weston in that triple‑0 call makes an allegation of murder, that is to say, deliberate:

This is fuckin’ murder.

He says.  But that correction aside, can I go – if I understood Mr Walker’s argument correctly, and if I have not, then so be it.  But at its heart it is submitted, your Honours, our friend’s argument proceeds from two flawed premises.

The first is that the independent or objective evidence was equivocal as between deliberateness and accident and, for the reasons that we set out in our materials, we submit that that is plainly not so.  Leaving aside eyewitness versions, the vehicle that travels along a laneway, a driveway or a road and collides with a pedestrian, who we might assume does not have a death wish, off the road at the point of collision, and not at an inconsiderable speed for the laneway or road or driveway in question – and here we know that the speed was at a minimum of 45 kilometres per hour, it can hardly be said that those two propositions are held in perfect equipoise, as it were.  We have provided for some assistance, hopefully, to your Honours just a collection of the photos the jury were provided with, and they are exhibited or attached to the affidavit of my instructor.

Really, they are only there to give meaning to the assertion that we make in our materials.  Importantly here, is a bending, as it were, or a veering to the right of this particular gravel laneway or driveway, such that, if indeed it is the case, as the objective evidence shows, that for 44 or so metres, the vehicle travelled entirely on that gravel pathway, then it follows ineluctably in our submission that, having regards to the point of collision which is some point off to the right, or after the laneway or the driveway has veered to the right, if a driver was intent on making, as it were, a direct pathway to that pedestrian, he or she would do precisely as the vehicle did in this instance.  That is to say, travel ‑ ‑ ‑

EDELMAN J:   Mr Boyce, what do you say, looking at, for example, the first of the photos ‑ ‑ ‑

MR BOYCE:   Yes.

EDELMAN J:   ‑ ‑ ‑ to the proposition that that is also precisely what the driver might do if they were trying to reach the gate or the entrance?

MR BOYCE:   I suppose the first answer to your Honour’s question is, leaving aside what might or might not happen in the hypothetical instance, we return to the key – as it were, the accident frame in this particular case, that being the applicant’s version.  We are told, in her version, that after she had, as it were – after she had come through the horsehead gates, which one can locate on the second photo down towards the bottom near the residence, she turned, as quickly as the, or:

as soon as the turning circle of the ute would allow.

Onto the grass verge.  This is her version about why it was an accident.  And it proceeded as close to the fence and, that is to say, the southern fence as could be committed without setting off an alarm and it proceeded at less the half the minimum speed of the speed at which the vehicle was going as assessed by Detective Leading ‑ ‑ ‑

EDELMAN J:   Her version is that she was trying to drive past him to get to the front gate, was it not?

MR BOYCE:   By this means, yes – this is the story, her version.  In her version of the accident, she was, as it were – her version of accident was that she was entirely on the grass, the southern grass, really, from the inception or as soon as the turning circle would permit, she proceeded as close as she possibly could to the fence without setting off an alarm, and proceeded at less than half the minimum speed, and that, inexplicably, the deceased jumped or ran in front of her vehicle.

The importance of that is to see or recognise that that, at its core, is entirely – and this is what we submit that the Court of Appeal in essence found – at its core, is entirely inconsistent with the objective and/or independent evidence such as we can glean it from the evidence of Mr Hardiman – or Detective Leading Constable Hardiman – and, indeed, the photos.

The prosecutor, when he closed in this case, relied very heavily on the photos, in particular Photobook B, and I have just given your Honours a smattering of some of the photos that were shown just to bring the case alive, as it were.

The essential point, we submit, that impressed the court below, and it was open to them – or, indeed, we would submit that they were entirely correct to accept – was that the idea or the notion that the car proceeds for 44 metres or thereabouts entirely on a gravel driveway, and then for some distance on or off as the driveway veers to the right, and then only ultimately fully onto the grass at the very final moments – which is what the independent evidence shows, and what you can see from the photos as well, and from what Mr Hardiman says – is that entirely, at its core ‑ ‑ ‑

GORDON J:   Mr Boyce, would you mind if the Court adjourned for a moment?  I apologise to interrupt.

MR BOYCE:   Not at all.

AT 12.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.04 PM:

GORDON J:   I apologise, Mr Boyce, there was – quite probably – a building announcement and it meant that some of us could not hear you.

MR BOYCE:   Not at all, your Honour, thank you.  I was submitting that, at its core, the version given by the applicant does not cohere with or concur with the independent evidence, and not only that, that it is – and I do not want to put it too highly – but it seems – we have said this, I think, in our materials – inherently implausible that is to say that a man who clearly saw some life or future for himself beyond that particular day with his caravan, which is why he wanted to get away from the house and perhaps move to the Green Lake caravan park in Ararat or thereabouts – would do as the applicant said that he did.

But then, when we come to the version of Weston, you see how at its core – in terms of its central aspects – it cohered substantially and, we would submit, forcefully with the objective evidence because, at its core, that version of course, we know, is one where Mr Weston is in no doubt that he has seen a deliberate running‑down – we see that really in the responses that he makes to the questions of Mr Solomon during the walk‑through – and those are set out application book 80, paragraph 29.

So, what is Mr Weston saying – he says that he has walked up the driveway some distance – the deceased has walked past him and has gone further up ahead with his phone – that is to say, Mr Weston’s phone – speaking to the triple‑0 operator and the applicant came up the driveway proper – that is to say not on the grass but fully on the driveway – at some – anywhere between 40 and 50 km per hour, he estimated, passes him, he calls out to the deceased in essence to watch out and the deceased turns around with:

a look of pure horror –

on his face, and then crucially – and we would submit entirely consistently with the independent evidence – the deceased moves – firstly the deceased moves onto the southern grass verge to get away, but the applicant does too – follows – as Mr Weston would have it, and, as we would submit, as reflected in the photos – in particular, I think it is the first photo – and indeed the last photo.  It is reflected also from the trajectory of the tyre marks.

Where you have got these two versions which cannot live with one another and the version of Mr Weston, who is in no doubt about what he saw, and his call coheres with and supports – or he is supported by – the objective independent evidence.  Where we would contend – and what we understand this submission does not find favour with our friend – but we would contend from the independent or objective evidence itself, the difference between – or accident on the one hand, and deliberateness on the other is not equivocal – or not held in perfect equipoise, if I can put it that way – a compelling case – and when a compelling case of guilt is presented – and, indeed, the court below was correct to submit that the consistency between those two versions paints a compelling picture of guilt.  As we understand it, the two ‑ ‑ ‑

GORDON J:   Mr Boyce, what do we make of – or what is the Crown’s response to, in a sense, the inconsistencies which the Crown accepts?

MR BOYCE:   I am coming to that.  So, in the end the two – as we apprehend it – principal inconsistencies that are relied upon by our friends are that Mr Weston said:

dead straight tracks –

in the walk‑through and:

hitting him front and centre.

In fact, it is the case that there are three changes of direction of the car.  One, which Mr Weston does describe – that is the initial movement of the vehicle onto the southern grass.  But, then, Mr Hardiman speaks of two – I think he uses the term, “relatively small movements” – these are in the moments just prior to collision of the vehicle – one slightly back to the gravel and then one back south again.

Secondly, Mr Weston in the walk‑through says, he hit the car, the deceased, front and centre when, in fact, the evidence is that the deceased hit the vehicle more towards the driver’s side of the vehicle.  As a response to that, this did not mean that these two inconsistencies – given the relative positions of Mr Weston, on the one hand, and what he saw up ahead of him, slightly to the right, of course, or only to the right – they are not preclusive of accepting his version – or accepting the Crown case in its entirety – namely, that there was a deliberate running‑down, especially where, at its core, that version cohered with the independent evidence and the evidence is mainly related to the aspect of the Crown case that suggested deliberateness.

Then, when it is compared to the version given by the applicant, who I have submitted was the – from whom the version of accident emanated.  So those two – which we understand them to be – those two are the inconsistencies . . . . . wholeheartedly explicable views ‑ ‑ ‑ 

GORDON J:   I think there were four inconsistencies.  There is the impact with the bonnet, there is the lack of consistency with the path, there is the brake lights and then there is the error distance, I think to be fair.  I think you have addressed the two ‑ ‑ ‑ 

MR BOYCE:   There was the brake lights and there was the horn, I thought, perhaps in addition.  The horn – we deal with that in our materials.  We submit, firstly, the applicant, I think I am correct in saying there is no recollection of sounding the horn, and we make a submission about the horn.  The horn is not, again, preclusive.  It seems to be a doleful, sad reality that people in a state of anger will sound their horn in a vehicle when they have no real sense of wishing to protect those who are in the environment of the vehicle.

Then, of course, the brake lights, we deal with that in our materials as well.  We would submit that we come to the brake lights that a close analysis of – a fair analysis of the statement made by Mr Weston concerning brake lights is – and we deal with this, I think, at paragraph 17 on application book 131.  We submit that when the references to brake lights are read in their proper context, it is clear that he – not having seen them prior to impact.  We set out the versions at our footnote 36, which I do not need to read, which show that that is so.  Again, we would submit that is very much around the edges, not heading towards the core of this case, which was certainly not preclusive or would require the jury to have a doubt or, indeed, the Court of Appeal.

GORDON J:   Mr Walker sought to put the case, I think – or the application on two bases.  One is visitation by reference to an unreasonable verdict, to which these submissions have been addressed, as I understand.  The second was that this case had a broader application in relation to the non‑availability of a witness.  Do you wish to say anything in relation to the second aspect?

MR BOYCE:   We do not understand – well, no doubt our friend will explain it to us, but in the end, the question is whether or not the evidence was sufficient such as it was.  Section 32 of the Jury Directions Act, which was the direction that was given and in respect of which there is no ground or complaint, enjoins finder of facts to exercise caution in determining whether to accept the evidence.  With respect, your Honours, it could not be thought in any way, shape or form that their Honours below unanimously did not exercise caution or were unaware of the fact that Mr Weston was unable to be cross‑examined.  There is a close analysis of the evidence by the court below.

The question, the final analysis, is simply whether that evidence was sufficient to make good the Crown case or whether the jury were required, having regard to that evidence, having regard to the fact that caution is to be exercised – and we would submit that it is clear beyond any doubt that the court below exercised such caution – does the evidence, is it sufficient to make good the Crown case?  And for the reasons – that is the question – or that is the issue, that we see raised by – or that is raised by the ground of appeal, the proposed ground of appeal, and our friends seek to rely upon. 

In the end, where there is no objection taken to, or criticism of that – and in the end when one comes to the evidence itself, such as I have been

able to summarise it – having regard to the caution that must be exercised, that the finder of fact is enjoined to exercise, again, your Honour, I would make the submission, it seems clear to us that the evidence relied upon by the Crown, he painted a compelling picture of guilt because of this coherence between the version of Mr Weston and the objective evidence; what the objective evidence said on its own, as compared to the version of the applicant, who was the progenitor, if you like, of the case for accident.

Unless there is anything further, your Honours, those are our submissions.

GORDON J:   Thank you, Mr Boyce.  Mr Walker, anything in reply?

MR WALKER:   Briefly, your Honours.  Naturally enough, bearing in mind the common ground as to the physical circumstances of the death, the issue on which the Crown bore the onus to the requisite standard boiled down to the question of the elimination of accident as possibility.  Obviously not, and my friend has not made the error, obviously, of suggesting that there was ever any onus on the defence.  But the issue was, therefore, had the Crown proved beyond reasonable doubt from the evidence – and I stress evidence, not speculation – as to what an absent witness might have said, had he been asked questions.

It is because of that, it is important in reply to note that, for the reasons we have written both in‑chief and in reply, Mr Hardiman’s evidence does not to any degree present any inconsistency with accident.  And once it is consistent with accident, then it is equivocal, in the relevant sense concerning the elimination of accident as an answer to the criminal charge – that is the first point.

Second, speculation – and I do stress speculation – about this Mr Snooks’ state of mind – the proposition, in effect, this morning that he had no reason to believe he was suicidal – has got nothing whatever to do with the issues raised given the Crown’s onus to prove beyond reasonable doubt that this was not an accident.

That has to do not with Mr Snooks’ state of mind, but with our client’s conduct and the intent to be attributed to her by the evidence and on the evidence, not by speculation.  True, by inference, but there is nothing from Mr Hardiman’s evidence which produced an inference of intent, and he was careful and scrupulous not to do so.

What his evidence did do, in the concession to which we have given reference in paragraph 8 at page 104 of the book makes clear, is that, untouched in any re‑examination by the Crown, and merely criticised from the Bar table, Mr Hardiman gave evidence in effect that had there been a

scenario consistent with the deliberate following of Mr Snooks so as to hit him, then the marks would have been different from those which had been observed by the expert.

When one puts that together, the fact that Mr Weston’s “front and centre” collision after a “dead straight”, “no wobbly‑ness” pursuit in the vehicle, in our submission, this is a paradigm of the unresolved uncertainties which this Court has repeatedly said is the hallmark of the judicial detection of jury error, and that, in our submission, is what the Court of Appeal failed to arrest and that is why the case ought to get special leave.

May it please the Court.

GORDON J:   Thank you, Mr Walker.  The Court will adjourn to consider the course it may take.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.23 PM:

GORDON J:   The Court is of the opinion that any appeal would have insufficient prospects of success to warrant the grant of special leave.  Special leave to appeal is refused.

Please adjourn the Court to 12.30 pm.

AT 12.24 PM THE MATTER WAS CONCLUDED