Col v The Queen

[2014] HCATrans 236

[2014] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S102 of 2014

B e t w e e n -

MURAT COL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 OCTOBER 2014, AT 12.07 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR T.H. GARTELMANN.  (instructed by Legal Aid NSW)

MR J.H. PICKERING, SC:   I appear for the respondent, your Honours.  (instructed by Director of Public Prosecutions (NSW))

CRENNAN J:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  We do seek an extension of time in this matter, your Honour.

MR PICKERING:   That is not opposed.

CRENNAN J:   Not opposed.  You have that extension.

MR ODGERS:   Thank you, your Honour.  Your Honours, a recurring difficulty for criminal defence lawyers in particular is a client who is undoubtedly guilty of something but stubbornly refuses – even in the face of compelling evidence – to admit doing anything wrong.  It is also a recurring difficulty for the criminal justice system where such a person is charged with two alternative offences. 

A jury which, quite understandably, rejects the accused’s claims of complete innocence may jump too readily to a conclusion that the accused is guilty of the primary offence charged.  An appeal court may have little sympathy for an appeal against conviction where the accused maintained his complete innocence, despite overwhelming evidence that he was not completely innocent.  Yet, the public interest in preventing miscarriages of justice remains.

Just because the accused is terrified of any conviction or too stupid to face reality does not mean that the criminal justice system should not be concerned to ensure that he is convicted of the right offence.  It can have real implications for the accused, as in the present case – the maximum penalty for intentional infliction of grievous bodily harm is 25 years in prison, while the maximum penalty for reckless infliction of grievous bodily harm is 10 years. 

It was accepted in the Court of Criminal Appeal and is accepted here that there was compelling evidence that the applicant did inflict grievous bodily harm on his de facto partner – that he did assault her, that he did throw methylated spirits on the bed, and that he did flick his lighter.  The primary focus of the appeal in the Court of Criminal Appeal, and here, is in relation to the conviction for the offence of intentionally inflict grievous bodily harm, rather than the alternative of recklessly inflict grievous bodily harm. 

It was argued in the court below that it was unreasonable for the jury to infer the required intention, as distinct from mere recklessness.  We say that Justice Latham, with Justice Davies agreeing, adopted an unduly restrictive approach to that question, asking whether it was open to the jury to be satisfied beyond reasonable doubt of guilt to conclude that intention was the only reasonable inference, rather than deciding for herself whether she had a doubt on the question - rather than deciding for herself whether or not an alternative inference was open on the evidence.

In M v The Queen, the leading case on unsafe and unsatisfactory or unreasonable verdicts, the Court did begin with the proposition that the question is whether or not it was open to the jury to not have a reasonable doubt.  But the Court proceeded to give authoritative guidance which asked the Court – required an appellate court – to consider for itself the evidence, consider for itself whether or not it had a reasonable doubt and, if it did, it would only be in a case where the jury had some relevant advantage which might explain away that doubt that the court should not act on that doubt. 

Now, in a circumstantial case, as this is in relation to the question of intention or recklessness, the jury had no advantage over the Court of Criminal Appeal, and we say that that means an appellate court should ask itself whether or not it considered that a hypothesis consistent with a lesser fault element was open on the evidence.  Now, we have ‑ ‑ ‑

KEANE J:   But compared to the Court of Criminal Appeal here, what Justice Latham said was that evidence of your client’s intention was sufficient for the purposes of the offence.  Her Honour said it was open to the jury to conclude that that was the only reasonably available inference.

MR ODGERS:   I understand that, your Honour.

KEANE J:   Now, I know our job is to quibble about words, but it does seem to me that her Honour has articulated the substance of the test for which you are contending.

MR ODGERS:   I have sought to make the submission that her Honour has not engaged in the inquiry that M v The Queen and SKA require, that is do I have a doubt and then asking can that doubt be removed.  To ask whether or not it was open to a jury to not have a doubt, or to exclude an alternative inference does not engage in what we say is the required step. 

We have given your Honours the authority of Knight v The Queen.  That is a good example of where the Court itself – this Court – was considering the question of whether or not intention – a verdict on the basis of intention – was proved beyond reasonable doubt.  The Court did use the language initially of whether or not it was open to the jury to exclude the possibility that he did not have the intention, but then the Court proceeded itself to consider for itself whether or not the judges had considered that it was reasonably possible there was a reasonable alternative inference open, rather than asking whether or not it was open to the jury to exclude that inference.  Now, your Honour, I understand that when one is interpreting what the judges say, words may not ‑ ‑ ‑

KEANE J:   In the context of a case where the evidence seems to be clear that your client indicated in clear terms that he did not want the victim sleeping on the bed and that he doused her with methylated spirits and then ignited it with his lighter one can understand her Honour’s conclusion that the only reasonably available inference was that he intended to inflict the harm he did.

MR ODGERS:   I can only put the submission, your Honours, that one could not reasonably exclude the alternative.  Now, I understand what your Honours ‑ ‑ ‑

KEANE J:   The alternative would be?

MR ODGERS:   That he was attempting to scare her, to intimidate her, to persuade her to get out of the bed ‑ ‑ ‑

KEANE J:   All that might be reasonably available had he not actually ignited the fluid, the methylated spirits.

MR ODGERS:   Yes, your Honour.  The evidence was, as I understand ‑ ‑ ‑

KEANE J:   Going to the stage of actually setting fire to the victim probably does sort of clinch it a bit.

MR ODGERS:   Of course, your Honour, of course.  But the evidence was - and this was in the evidence from the police statement, exhibit O, we have challenged the admissibility of that – I will come to that in due course, but the evidence was that he was standing back from the bed, not putting the lighter towards the bed, not attempting on the face of it to ignite the liquid, and flicking the lighter some distance away.  Now, what does that suggest?  That suggests that he is trying to scare her. 

It seems inevitable that what has happened here is that the gases from the methylated spirits have gone into the atmosphere and that is what has led to the methylated spirits igniting.  But does that not, with respect, raise the real possibility that he actually did not intend.  He was scaring her by flicking the lighter, but not – you would have thought, if he intended to light the spirits, he would have put the lighter down to the doona, or whatever the material was in which it had, the liquid had gone, in order to light it.  In the context of all the other matters – plainly his shock when the fire started, the fact that he got second degree burns trying to put it out, all of that – carrying her to the shower - now, I know it is said well, that could be that he did not want her to die ‑ ‑ ‑

KEANE J:   Brought to his senses by what happened.

MR ODGERS:   Well, I understand that, your Honour, but we say that ‑ ‑ ‑

CRENNAN J:   Some evidence of immediately regretting what has actually happened does not preclude the jury from making the relevant – drawing the relevant inferences about intention.

MR ODGERS:   Of course not.  The question is whether there was this alternative inference that he did not expect, let alone intend the methylated spirits to ignite.  That is the question.  Did he intend them to ignite when he flicked the lighter when he is some distance away from the bed, when it appears that what has happened is it has been ignited by reason of it going into the atmosphere, in circumstances where he has not threatened to burn her, he has not threatened to cause her any harm.  He is trying, on the face of it – he said he wants her out of the bed.  It was plainly reckless on any view of it, but can one say that it is not a possible – a reasonably possible inference that he did not intend the spirits to ignite?  We say that there was an alternative inference that you could not exclude and that there was nothing compelling about any of the ‑ ‑ ‑

KEANE J:   The Court of Criminal Appeal considered that submission and rejected it.

MR ODGERS:   I put the argument that they have applied the wrong test.  That is the argument.  Turning to the consciousness of guilt evidence, it is noteworthy that the Crown, in supporting the reasonableness of the conviction, does not suggest that the applicant’s conduct after the incident, when he told the victim not to tell the cops, when he tried to hide the methylated spirits bottle, does not suggest that that pointed to intention rather than recklessness - an awareness that he had committed a crime, but not an awareness that he had committed the primary crime with which he was charged.

Our second ground is that the jury needed to be warned about the need for caution where evidence said to show consciousness of guilt is relied on in a case where alternative charges are brought.  Justice Latham appears to have concluded that the jury were not invited to draw an inference of consciousness of guilt from those two items of evidence.  We have extracted in our submissions what the prosecutor said, what the judge said, what the trial judge said to the jury. 

We say there is no doubt whatsoever that the jury were invited to infer from him telling her not to tell the police, from him attempting to hide the bottle, that he was aware that he had committed the crime with which he was charged – that is, the intentional infliction of grievous bodily harm.  So, we say that Justice Latham was wrong to say that that was not – that the jury were not invited to draw that inference.

Now, was it something that required careful direction?  We respectfully submit that evidence of consciousness of guilt always requires a careful direction because it is a dangerous inference, whether it is from lies or from conduct.  There is abundant authority that warnings about the care that needs to be taken before inferring consciousness of guilt are generally necessary.  But it is particularly necessary in a case like this one, because of the alternative explanation of guilt of the lesser offence. 

There is considerable intermediate appellate authority that where conduct is said to demonstrate consciousness of guilt may relate to different offences, careful directions will generally be required.  We have extracted cases from Queensland and Victoria and New South Wales in our written submissions where ‑ ‑ ‑

KEANE J:   Is not the point that the Court of Criminal Appeal was making that – and this is at paragraph 56 at page 94 – that the principal use that was made of your client’s conduct “was to rebut” his case of accident, this very elaborate case of accident that he ‑ ‑ ‑

MR ODGERS:   Yes.  I am not going to cavil with whether or not that was one use that was sought to be made of it, but there is no doubt – can I take you to page 114 of the submissions, where we have extracted in paragraphs 3.8 and 3.9 what the cross‑examination was and what the judge said to the jury.  There is no doubt, with respect, that it was put to the jury that, for example, he asked her – “Don’t tell the cops, please” because he was concerned he had done something very wrong.  He was conscious he had done something very wrong.  That is consciousness of guilt reasoning.

Similarly, with the bottle of spirits - it was put to him he put it in the wardrobe “because you realised that it was implicating you in having done precisely what I have been putting to you, that is, intentionally inflicting grievous bodily harm”.  The judge repeated that ‑ ‑ ‑

KEANE J:   Well no, it is to rebut the innocent explanation, an explanation of accident, which negatives all criminal responsibility.

MR ODGERS:   What the Crown Prosecutor had been putting to him, immediately prior to asking him about the bottle was that he intentionally ignited the methylated spirits.  So the jury would have understood that what was being put was that he realised he had intentionally inflicted grievous bodily harm by intentionally igniting the methylated spirits and that he had hidden the bottle because he realised that it was implicating him in that offence, in doing precisely what the Crown case alleged against him.  What was the Crown case?  He had intentionally ignited the methylated spirits.  That was what the judge said to the jury.

Now, I can only go on what was said by the prosecutor, what was said by the trial judge.  With respect, these are inviting inferences of consciousness of guilt towards the crime charged and the point we make is that where you have alternative offences of intentionally inflict and recklessly inflict, while certainly his conduct may show that he was conscious that he had done something wrong, you have to be quite careful in inferring what it was that he was conscious of doing.

Does it lead to the conclusion that he was conscious he had intentionally done it or does it lead to the conclusion or is there an alternative inference which is that he was conscious that he had behaved inexcusably and recklessly.  We say nothing was said about that to the jury.  It was essential in this kind of case where you have alternative charges that something along those lines is said to warn them of that kind of danger – of jumping too readily, too quickly, to a conclusion that because he is clearly guilty, therefore he is guilty of the offence charged, as distinct from the alternative.

Lastly, moving to the final ground, the question of the admissibility of exhibit O, that was the written statement made by the victim to the police three to four weeks after the incident.  I want to stress that its relevance to the question whether the applicant intended to inflict grievous bodily harm, rather than merely being reckless rests on the fact that the oral testimony of what the victim had said to other witnesses soon after the incident had some significant differences from what she had said in that statement and when she was significantly medicated, as the evidence led supported.

Two examples:  in exhibit O – and your Honour Justice Keane drew my attention to this – she said that the applicant had said something “along the lines of either burning the bed, the house or it all down”, something along the lines of either burning the bed, the house or it all down.  Now, that is rather equivocal, we would say, and we say it does not point unequivocally to an intention to inflict grievous bodily harm, but put that to one side.  The Crown has certainly placed a lot of emphasis in their submissions on those words in exhibit O.  But the victim did not tell any of her friends or family in the three weeks leading up to speaking to the police about that alleged threat.  So that was a significant difference. 

Secondly, in exhibit O, she said she heard the applicant flicking the lighter a couple of times before the fired started.  So that was the account – heard him flicking it a couple of times and then the fire starts.  She did not say in exhibit O, as she did say to some friends and family that, “he was teasing her with the lighter” ‑ did not say that.  She did not say, as she said to some family and friends that he did not mean it – “didn’t mean it” – what does that convey?  It plainly conveys that he did not intend to ignite the spirits or burn her and that “everything just got out of hand”, again, clearly something had happened which was not intended. 

Now, all of that was contained in what she said to people, family and friends, in the weeks after the incident, before she spoke to the police.  But, of course, that was not contained in exhibit O.  The danger, we say, is that the jury – with exhibit O in the jury room – would focus their attention on that written statement rather than the testimonial evidence, and that creates a risk of miscarriage if – if exhibit O was not admissible. 

Now, we say – and I am sure your Honours understand this - that it was not admissible.  There is no doubt it is credibility evidence within the terms of the Evidence Act.  There is no doubt the credibility evidence is rendered inadmissible by section 102.  That then raises the question how does it come in?  What overrides 102?  There are two questions of general importance raised.  One is the operation of section 103 – I do not know if your Honours have – if it is in the materials ‑ ‑ ‑

CRENNAN J:   We do have it.

MR ODGERS:   That says:

The credibility rule does not apply to evidence adduced in cross‑examination –

if, et cetera.  Now, we say that that plainly means testimonial evidence.  Certainly, Mr Gartelmann, before the Court of Criminal Appeal, he only conceded that the testimony of the victim could fit within 103.  It was never

conceded that a document could fit within 103.  So we say that there is a question of general importance as to whether or not that can extend to a piece of documentary evidence as distinct from testimony that is given in cross‑examination.  That is first question of general importance. 

The second is, assuming we are right about that, the operation of 106, because 106, which we say does apply to documentary evidence among other items of evidence, says that:

The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness -

So, in this case, that would include documentary evidence which is adduced otherwise than vive voce through a witness.  The precondition for the operation of 106 is that the substance of the evidence is put to the witness and the witness denies or does not admit the substance of the evidence.  In this case, we say that the evidence is, of course, a prior inconsistent statement.  That is one of the examples of where leave is not required under (2)(c) and in this case it was put to her that she had made the prior inconsistent statement.  She admitted it – “Yes, I did, I did say those things, I did make the prior inconsistent statement.” 

We say that is the end of it.  Once that has happened, the clear intention of 106 is that you do not go on to then give opportunities to adduce further evidence to prove the making of the prior inconsistent statement, which she had admitted, and fully admitted.  She admitted not only she had made the prior inconsistent statement – I see the light has gone, I had better sit down – but we say that there are questions of real general importance that arise in respect of that exhibit, which did have real significance for the outcome of the trial.  May it please the Court.

CRENNAN J:   Thank you, Mr Odgers.  Mr Pickering, we will not trouble you.  Justice Keane will deliver the Court’s decision on this application.

KEANE J:   An appeal would not enjoy sufficient prospects of success to warrant a grant of special leave.  We are not persuaded the interests of justice are engaged by this application.  The application should be dismissed.

CRENNAN J:   The Court will adjourn briefly to reconstitute.

AT 12.30 PM THE MATTER WAS CONCLUDED