Croll v The Queen

[2005] HCATrans 182

[2005] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B46 of 2004

B e t w e e n -

LEONARD THEODORE CROLL

Applicant

and

THE QUEEN

Respondent

Summons

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 30 MARCH 2005, AT 11.05 AM

Copyright in the High Court of Australia

MR L.T. CROLL appeared in person.

MR R.G. MARTIN, SC:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HIS HONOUR:   Yes, Mr Croll.  You are representing yourself, is that so?

MR CROLL:   Good morning, your Honour.  Yes, I am.

HIS HONOUR:   Right.  And Mr Martin, you are for the respondent?

MR MARTIN:   May it please your Honour.

HIS HONOUR:   Yes, Mr Croll.

MR CROLL:   Your Honour, I would like to ask if you received the affidavit.  It should be on the Court file.

HIS HONOUR:   I have seen the affidavit.  This is the affidavit with Mr Grigg’s material?

MR CROLL:   Yes, that is it.

HIS HONOUR:   Yes, I have seen that, Mr Croll.  Mr Martin, do you object to that affidavit?

MR MARTIN:   Your Honour, there are two affidavits.  There is one that seems to have been sworn on 29 March, which is under the hand of Croll, to which is appended as an exhibit Mr Grigg’s affidavit, if that is the material your Honour is talking about.

HIS HONOUR:   Let me just check this. 

MR CROLL:   Your Honour, if it may assist, on the face of the affidavit there are the points 1 to 6.

HIS HONOUR:   Just let me find it first, Mr Croll.  I have an affidavit here filed on 29 March.  It has an exhibit which is described as an abridged curriculum vitae of Mr Griggs, and a report by Mr Griggs.

MR CROLL:   That is correct, your Honour.  That is the affidavit.

HIS HONOUR:   What is your attitude to that, Mr Martin?

MR MARTIN:   Your Honour, in respect to the attitude of the Croll affidavit, that is to say, the body of the affidavit, that appears to be a recasting of what purported to be a reply to the response.

HIS HONOUR:   Do not trouble about that.  What is your attitude to it?

MR MARTIN:   I am sorry, your Honour, I suppose the short answer is, I object.  It is not an appropriate form.  So far as the Grigg material is concerned, if that is severable from the affidavit, I ‑ ‑ ‑

HIS HONOUR:   Well, it seems more fundamental than that, Mr Martin.  Mr Croll, it is now well established, and this appears from the response which has been made by the respondent, that the High Court does not receive and cannot receive, as a matter of law, fresh evidence.

MR CROLL:   Yes, I do understand that, your Honour.

HIS HONOUR:   And that means that on the hearing of any appeal, if you were to obtain special leave, the Court could not and would not look at Mr Grigg’s material at all.  The Court just cannot do it as a matter of law.

MR CROLL:   Yes, I understand that your Honour.

HIS HONOUR:   Now, if the Court cannot do it on an appeal, that material does not go to any fact relevant to special leave to appeal.  Now, the Court can receive evidence on an application for special leave to appeal, but that is evidence directed to the reasons why the Court should give special leave to appeal, such as that there are a number of similar cases of this kind, or going to affect a number of people in different situations.  Mr Grigg’s material does not go to that.

MR CROLL:   Yes, I understand what your Honour is saying.  And the sole purpose for this affidavit was to have the material before your Honour, so you could have a look at it.

HIS HONOUR:   But I cannot, you see.  I cannot look at it for the purposes of an appeal, it does not go to reasons why special leave to appeal should be granted, so therefore it seems to me to be irrelevant, and I think I am bound to reject it, Mr Croll.

MR CROLL:   Your Honour, as part of my appeal, the transcripts need to be part of my appeal, they need to ‑ ‑ ‑

HIS HONOUR:   This is not part of the transcript, this is new material.  You did not even obtain this.  I do not think you even went to Mr Grigg until after the appeal was concluded.  Is that not right?

MR CROLL:   That is right, your Honour.

HIS HONOUR:   This has nothing to do with the transcript, Mr Croll.  Indeed, it is right outside the transcript.

MR CROLL:   And the only reason why it took so long to go to Mr Grigg was because you only have 28 days to file an appeal.

HIS HONOUR:   But it is not relevant to the appeal.  It cannot be looked at by the Court on appeal.

MR CROLL:   I understand that, your Honour.  If it is to be rejected, then that is ‑ ‑ ‑

HIS HONOUR:   I am afraid I must reject it.

MR CROLL:   Yes, I can understand that.

HIS HONOUR:   And it does not serve any purpose for you because the Court will not look at it.  It is better for you to know that now.

MR CROLL:   Okay, your Honour.  If we could move on to the issue of the transcripts.

HIS HONOUR:   Yes.

MR CROLL:   The trial transcripts need to be part of my case, they need to be added to the ‑ ‑ ‑

HIS HONOUR:   Can I just explain something to you.  You may know this, but I will mention it anyway.  When you make an application for special leave, you only have 20 minutes.  Do you know that?  Each side has only 20 minutes in which to address the Court.  Indeed, a number of applications for special leave now are being dealt with on the papers, but, if the Court decides to give you an oral hearing, you simply do not have time to refer at length.  Now, if there is some particular part of the transcript, some part that would help you to make good your point, then there may be a basis for inclusion of that ‑ ‑ ‑

MR CROLL:   Thank you, your Honour, I will go straight ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ but it is really not appropriate to include the whole of the transcript.  If you got special leave to appeal, then certainly the whole of the transcript would go in.

MR CROLL:   Yes.

HIS HONOUR:   When I say that, I mean the transcript of the trial, not of the appeal to the Court of Appeal.

MR CROLL:   Your Honour, I would only be seeking that the transcript of the trial be included.

HIS HONOUR:   All right.  Now, again, what I have said, you would not have time to refer to the whole of the transcript, but is there any particular part of the transcript that you think would assist you to obtain a grant a special leave?

MR CROLL:   Yes, most definitely, your Honour.

HIS HONOUR:   Right.  Well, perhaps you could tell me what that is.

MR CROLL:   Does your Honour have a copy of the transcript?

HIS HONOUR:   Yes, I do.

MR CROLL:   If I could ask your Honour to turn to page 14 of the prosecution’s opening on paragraph 20.

HIS HONOUR:   I have a problem about this.  I have page 10 and then it is pages 11 to 18 of transcript not included in the record.

MR CROLL:   I may assist.  I have a full copy of the transcript, your Honour.

HIS HONOUR:   All right.  Can you assist me on that, Mr Martin?

MR MARTIN:   Your Honour, conventionally, in the Court of Appeal, as your Honour is aware, opening and closing addresses are not included.  What appears to have been provided to you by the applicant is the appeal book from the Court of Appeal, which does not contain that material.

HIS HONOUR:   All right.  Do you have page 14 there in front of you?

MR CROLL:   Yes, I do, your Honour.

HIS HONOUR:   Tell me what happened.

MR CROLL:   The prosecutor, Mr Johnson’s opening address to the jury, he states at page 14, line 20:  “Unfortunately, the Celica, as it drove past the Mitsubishi which by this stage was into South Pine Road, the Celica manoeuvred in such a way that it sideswiped the driver’s side of the Mitsubishi.  The Celica then sped off at a fast rate of knots”.  That is what the Crown said is the dangerous driving in count two.  Now, on page 15, paragraph 13, Mr Johnson makes another comment about the alleged sideswipes.

HIS HONOUR:   But this is only an opening, Mr Croll.

MR CROLL:   Yes.

HIS HONOUR:   What a prosecutor, indeed, what any counsel does, is outline, to the best of his or her ability, the evidence that he or she expects the witnesses to give.  What the prosecutor says in the opening is not evidence, and if in fact the witnesses say something different, then that is what the jury and the court have regard to, not to what the prosecutor or, indeed, what defence counsel has said, if it is different from the evidence.  Now, what is the point you want to make about this?

MR CROLL:   Your Honour, the prosecution in their opening and throughout the trial was relying on an impossible event to have occurred.

HIS HONOUR:   But you say it is impossible because Mr Grigg has ‑ ‑ ‑

MR CROLL:   No, your Honour, I am saying it is impossible because it did not happen, and the reason ‑ ‑ ‑

HIS HONOUR:   But the jury thought it happened.

MR CROLL:   Yes, that takes us to another area, your Honour.  The jury was misled by his Honour Samios in summing up.

HIS HONOUR:   His Honour Judge Samios, yes. 

MR CROLL:   Judge Samios.  Now, the paragraph I read to you on page 14 – his Honour Judge Samios, in his summing up to the jury, I might add again, he summed up for eight hours, he redefined the evidence, because he could see a problem with the prosecution’s case because of the way they opened the case, saying that you have the two vehicles, a Celica and a van.  There was no damage to the left hand side of the Celica, but there was damage to the right hand side of the van.  They allege that ‑ ‑ ‑

HIS HONOUR:   Mr Croll, I am not going to let you argue your application for special leave this morning.  You have to talk to me in terms of principle, not in terms of detail.  What you are seeking to say is, as I understand it, that close examination of the transcript shows that you should have been acquitted and not convicted.  Is that what you are saying?

MR CROLL:   Your Honour, yes.

HIS HONOUR:   Did you take this point in the Court of Appeal, that the trial judge erred?

MR CROLL:   Yes.

HIS HONOUR:   And did the Court of Appeal deal with that?

MR CROLL:   The Court of Appeal virtually stated that they chose to go with the jury, because of the jury’s verdict.  Now, the jury was misled.  If I could read your Honour the summing up of Judge Samios ‑ ‑ ‑

HIS HONOUR:   No, we cannot do that.  Point to some error, if you say there is one.

MR CROLL:   It is on page 256, your Honour.

HIS HONOUR:   Yes.

MR CROLL:   Top of the page, it starts, “Now, the Prosecution” ‑ ‑ ‑

HIS HONOUR:   Yes.

MR CROLL:    ‑ ‑ ‑ and goes all the way down to paragraph 40.  That is where Judge Samios redefined the evidence to the jury, to make the jury think that what the prosecution was saying was possible, because, in the opening, what Mr Johnson had said was based on an impossibility, and based on a fabricated police case.  Now, his Honour Samios in saying:

Now, the Prosecution, when it opened the case, said it was relying on two occasions for damage being caused. 

Now, his Honour Samios has gone back, obviously looked at the transcripts and realised this is not possible.  So I was acquitted of two counts.

HIS HONOUR:   Yes.

MR CROLL:   Count one was dropped, and I was found guilty of counts two and three, which were dangerous driving.  Now, if his Honour Samios did not redefine the evidence, it would have been open to the jury that what the prosecution was saying about the damage to the vehicles is just not possible.  It does not obey the natural laws, and it just is not possible.  So his Honour realised that the prosecution had a major problem with their case.  He could see that I was innocent of all the charges, but he had to protect the prosecution ‑ ‑ ‑

CALLINAN J:   No, no.  What he was dealing with was the evidence as it emerged, and the evidence as it emerged certainly did not support the opening of the Crown case, the prosecution case.  But he has told them that, in fact.  Indeed, one of the allegations seems to have been withdrawn.  The allegation with respect to South Pine Road has been withdrawn.

MR CROLL:   That in itself, your Honour, should be a clear indication that what the prosecution was saying and what was coming out of the trial ‑ ‑ ‑

HIS HONOUR:   One aspect of what the prosecution said in the opening turned out to be wrong.  But that seems to have been conceded by the prosecution.  That it had been conceded the trial judge told the jury.

MR CROLL:   The trial judge, your Honour ‑ ‑ ‑

HIS HONOUR:   Look, it is a good point to be made, possibly, to the jury.  No doubt you could say, and you did say, “Well, the prosecution got that wrong, they are wrong about everything”, but these are jury questions.

MR CROLL:   But his Honour Samios did not address the jury on that subject.  It was ‑ ‑ ‑

HIS HONOUR:   Did you represent yourself at the trial?

MR CROLL:   No, I did not, your Honour.

HIS HONOUR:   Who represented you?

MR CROLL:   A highly regarded barrister, Mr Adrian Gundelach. 

HIS HONOUR:   Mr Gundelach no doubt made the best point he could about all of this, about the change of tack and the change of direction by the prosecution.  In any event, on this aspect of the case, how many pages are we talking about on the summing up?  Pages 255 to where?

MR CROLL:   Page 245, your Honour, is the start.

HIS HONOUR:   Yes.

MR CROLL:   It goes through to 305.  That is including a couple of redirections.

HIS HONOUR:   Well, those total 60 pages cannot all be on this point.

MR CROLL:   Hopefully, your Honour would agree that an eight hour summing up to a jury is a considerable length of time.

HIS HONOUR:   It certainly is a very long summing up, I agree with that. 

MR CROLL:   I really do feel that that part of the transcript, the whole of the summing up, really does need to be put into the application book, your Honour.

HIS HONOUR:   You would not have time to deal with it.  I am just telling you that you would be wasting your time.  If you can select, if you can satisfy me about pages which go right to the gist of your point, I may be prepared to consider inclusion of them.  I would have thought that the point that you are presently dealing with really can be picked up from pages 255 through to 258, and then, I would have thought, 262 to 265, because I notice that at those pages you intervened and pointed out to the judge that the judge had made an error by referring to Camelia Street rather than Grevillea Street.  It seems to me that that point ‑ ‑ ‑

MR CROLL:   Your Honour, if I could have those pages included and 255 to 258.  Yes, I would be satisfied if those pages were to be included, your Honour. 

HIS HONOUR:   All right.

MR CROLL:   I would ultimately seek to have the whole of the summing up put in there, because ‑ ‑ ‑

HIS HONOUR:   Well, I am not going to do that.  I have made that clear, and for the reasons I have said.

MR CROLL:   Moving on, then, your Honour, in the parts of the transcript the opening of Mr Johnson ‑ ‑ ‑

HIS HONOUR:   No, I will not do that, because that is not evidence.

MR CROLL:   The transcript of the evidence in‑chief of the investigating officer, Roger Thompson?

HIS HONOUR:   No, I will not do that.  There would not be time to refer to that.

MR CROLL:   Well, your Honour, throughout the evidence in‑chief of the two witnesses, Wesley and Daniel, their evidence in the trial differed considerably to the evidence that was before ‑ ‑ ‑

HIS HONOUR:   These are points to be made to the jury.  There is a jury verdict against you.

MR CROLL:   Yes. 

HIS HONOUR:   Courts practically never interfere with jury verdicts.  They only interfere with jury verdicts if they are satisfied that there has been a misdirection or there has been no evidence at all to support the jury verdict.  You were represented by very experienced and competent counsel.  He no doubt made all the best points he could in relation to these matters.  You do not get a retrial on an appeal, Mr Croll.

MR CROLL:   Yes, I understand that.

HIS HONOUR:   There has to be some serious error of principle or error of law.

MR CROLL:   There is, your Honour.

HIS HONOUR:   Well, what is it?  What is the serious error of law?

MR CROLL:   The error in principle is that I was convicted of something that is not possible.  It should have been obvious to the court.  I feel that it was obvious to the court.  That is why the jury was ‑ ‑ ‑

HIS HONOUR:   Obviously, the Court of Appeal did not think that.

MR CROLL:   Your Honour, the reason why the Court of Appeal did not think that is because they chose to go with the jury.  They did not know ‑ ‑ ‑

HIS HONOUR:   That is what I tell you, courts go with juries.  They go with juries unless the juries have been misdirected.

MR CROLL:   Yes, your Honour, but juries are not in a courtroom thinking that prosecution witnesses are going to commit perjury, they are going to tell ‑ ‑ ‑

HIS HONOUR:   That is what juries decide.  They decide that sort of issue every day.

MR CROLL:   Yes.

HIS HONOUR:   You might not like the jury result, you might have preferred the other evidence, but the jury has to decide.  Not the judge, the jury.  And courts do not go behind jury verdicts unless the juries have been misdirected, there has been insufficient evidence or no evidence, or, in some way, there has been some error of principle in law.

MR CROLL:   Your Honour, the jury was ‑ ‑ ‑

HIS HONOUR:   Now, is there any other part of the transcript, brief part of the transcript, that you seek to have included?

MR CROLL:   Page 70.

HIS HONOUR:   Why?

MR CROLL:   Because this is the evidence of Sergeant Clarke, a police officer.

HIS HONOUR:   Now, look, once you start including bits and pieces of the evidence, you really have to include all of it, and the Court is not going to look at all the evidence on a special leave application.

MR CROLL:   Your Honour, the evidence of all the prosecution witnesses, the evidence of myself, was that there was no damage to the left hand side of the Celica, which there was no damage to the left hand side of the Celica.  Now, for the sideswipe to have occurred ‑ ‑ ‑

HIS HONOUR:   You can make that point by making a submission on your special leave application that it was an essential part of the prosecution case that damage to – what is it – the left side of the Celica had been caused, and the evidence was all one way that there was no such damage.  Now, if you are right about that, you make that point and you make it good.  If you are wrong about that, no doubt the respondent will draw attention to the evidence to the contrary.  You do not need all the transcript.  You do not need any transcript for that. 

MR CROLL:   Your Honour, the prosecution witnesses committed perjury throughout the whole trial.

HIS HONOUR:   You can say that as much as you like, but the jury believed them.  You are not going to get the whole of the transcript in.  There is no point in my repeating myself about this, Mr Croll.

MR CROLL:   The jury did not believe them, your Honour.  Count two, counts three, four and five ‑ ‑ ‑

HIS HONOUR:   All right.  Well, if the jury did not believe them on that, and if there is some inconsistency of verdicts, then that will emerge, and you can make that point.  But juries acquit and convict on a multiplicity of counts every day.  They do not believe all the witnesses, or they do not believe one aspect of the story.  It does not mean they have to reject other aspects of it.

MR CROLL:   They were led to believe that the impossible was possible, your Honour, and that is throughout the whole trial.

HIS HONOUR:   As I said to you, you can make that point.  You can say that it was an essential part of the Crown case against you that there was damage to the Celica on the left side, that there was, in fact, in the whole of the case, no evidence of any such damage.  If you are right about that and that is a good point, then you may impress the Court that hears your application for special leave.  If you are wrong about that, the prosecution will point no doubt to evidence, would seek to have included in the transcript evidence – it would probably only be a page or two at most – which showed you were wrong about that.

It is no good your getting up here and saying to me repeatedly that the witnesses perjured themselves.  I am not going to deal with your application for special leave.  I am not hearing it.  I am not hearing an appeal.  You have to tell me, you have to point to some particular part of the transcript and demonstrate to me why it goes to a matter of principle or serious error of law, in order to persuade me that it should be included.

MR CROLL:   Your Honour, the ‑ ‑ ‑

HIS HONOUR:   You are not going to do that by saying you want the whole of the transcript in.

MR CROLL:   The evidence of the witnesses throughout the trial – there are certain parts of that evidence that I would like to include.

HIS HONOUR:   I have told you, I am not going to permit you to do it.  Can you hear what I am saying to you, Mr Croll?

MR CROLL:   Yes, I can, but I ‑ ‑ ‑

HIS HONOUR:   You have to point to matters of principle and the Court is not going to look at piecemeal pieces of evidence.  Indeed, it is not going to look a the evidence unless there is some really strong knockout point in it.  Have you anything to add to what you have put to me?  There is no point in your saying the same thing over and over again.  Now, I am going to ask Mr Martin about the point that you seek to make regarding the Celica, the left side of the Celica.  I will see what he has to say about that.  But is there any other point you want to make, because you will be allowed a brief reply, but you have to make good your submissions now.

MR CROLL:   My outline of argument is based on the transcripts and certain parts of the transcript.  The affidavit that I have put before the Court refers to several pages of transcript, on analysis of the transcript.  So, for my outline of argument, if I could have the pages that are in my outline, the pages of transcript that are in my outline of argument included into the application book, I feel that that would be sufficient, your Honour.

HIS HONOUR:   I am just looking at that.  In paragraph 3 you refer to the pages of the transcript to which you have drawn my attention, page 50, paragraph 4, page 33, page 70.  You have really set out the details pretty fully, though, in your outline, Mr Croll.  You have focused on the actual passages in the evidence that you want to refer to.  I think you have summarised them adequately.  I do not think anything would be added by putting the pages in.

MR CROLL:   My outline is done from the transcript, so in order for my outline ‑ ‑ ‑

HIS HONOUR:   I understand that and those references to the transcript that you make in your outline will be accepted and read by the Court, unless the other side contradicts them.  The pages of the transcript do not add anything.

MR CROLL:   But, your Honour, the pages back up what I am saying, like ‑ ‑ ‑

HIS HONOUR:   No, no, nobody is saying that that evidence that you have summarised or that you have actually quoted was not given.  That is right, Mr Martin, is it not?  To the extent that it may be, you have no doubt got that in your reply, in your response, is that right?

MR MARTIN:   Yes, your Honour.  I should say this issue is dealt with by the Court of Appeal in relatively few paragraphs, so it is covered, your Honour.

HIS HONOUR:   Is there anything else, then, Mr Croll? 

MR CROLL:   If I could ask your Honour that the transcript of the Court of Appeal be added?

HIS HONOUR:   No.  No, we are not interested in the argument in the Court of Appeal, we are interested in the reasons of the Court of Appeal.  Certainly not.  That is practically never done.  The Court would not have anything – do you know how many applications for special leave a year we have?  It is more than 600.  It is 700‑odd.

MR CROLL:   Well, your Honour, that could be brought about by this type of thing happening in our Queensland courts, when Queensland courts allow this type of thing to happen.

HIS HONOUR:   Mr Croll, I am not prepared to include in the transcript for the special leave hearing the argument in the Court of Appeal.

MR CROLL:   Your Honour, in my outline what I have stated – the pages I have stated, the line numbers, if judges cannot look at the transcript and say, “Okay ‑ ‑ ‑

HIS HONOUR:   They will not look.  We will not look.  I have told you, Mr Croll.  You are just repeating yourself.  I will not include the Court of Appeal argument in the book for the special leave application.

MR CROLL:   I am sorry, your Honour, you must have misunderstood.  I was asking about the transcript of the District Court’s role ‑ ‑ ‑

HIS HONOUR:   No, I have dealt with that.  I have told you that in my opinion whatever is relevant or that you seek to make relevant has been either quoted or summarised in your outline, and that will have to suffice.  Is there anything else?

MR CROLL:   Yes, your Honour, I will be seeking to put a supplementary application book before the Court.

HIS HONOUR:   No, you will not, Mr Croll.  That is what the purpose of this application is, to decide what is to go before the Court, and I have indicated to you what I am prepared to allow to go in and what I am not prepared to allow to go in.

MR CROLL:   Could I ask, your Honour, if the statements of the prosecution witnesses at the committal could be added to ‑ ‑ ‑

HIS HONOUR:   No, Mr Croll, that was not the evidence before the jury.  To the extent that the witnesses may have contradicted themselves ‑ ‑ ‑

MR CROLL:   In a big way.

HIS HONOUR:    ‑ ‑ ‑ was a matter for the jury.

MR CROLL:   That was not brought up through the trial because the trial was so in‑depth, it was just ‑ ‑ ‑

HIS HONOUR:   We are not going to have a retrial.  Even if you have special leave to appeal, this Court will not retry the case.  No, I will not allow the statements or the committal evidence to go into the application book.  Is there anything else, Mr Croll?  You have had more time than you would have been allowed on a special leave application itself.

MR CROLL:   Could I have the police brief?

HIS HONOUR:   No, for the same reason.

MR CROLL:   I trust that the High Court will have copies of the – or photos of the vehicles that were involved?

HIS HONOUR:   The High Court will have what is in the application book.

MR CROLL:   Okay.  I do not think ‑ ‑ ‑

HIS HONOUR:   And, I am not going to allow you to supplement it any further except to the extent that I have indicated.

MR CROLL:   Your Honour, could I put in the application book the photos of the two vehicles that were before the jury in the trial?

HIS HONOUR:   I am prepared to consider that, subject to what Mr Martin says.  Is there anything else, Mr Croll, because I cannot let you go on indefinitely on an application like this.

MR CROLL:   No, I think that is all I can say, your Honour.

HIS HONOUR:   Thank you, Mr Croll.  Mr Martin, I am minded to allow pages 245 to 248 ‑ ‑ ‑

MR MARTIN:   I am sorry, 245, or ‑ ‑ ‑

HIS HONOUR:   Pages 245 to 248.

MR MARTIN:   I may have misheard.  I think that was 255, your Honour.

HIS HONOUR:   Was it?  Thank you.

MR MARTIN:   I will double check that.

HIS HONOUR:   I had in mind 245 to 248 and then 255 to 262, I think it was.  Do you have any problem about them?

MR MARTIN:   Your Honour, so far as the Crown is concerned, the summing up in total does not cause us grief.  It is the transcript of the evidence that is excessive.

HIS HONOUR:   It is what the Court has time to look at, Mr Martin.

MR MARTIN:   Of course.  Yes, understandably.

HIS HONOUR:   I gather, from what you have just said, you would not have any problem about those pages of the ‑ ‑ ‑

MR MARTIN:   Yes.  Your Honour, 245 is the actual commencement of the summing up, so it may be that – my note, as your Honour was speaking, was 255 to 258 and 262 to 265.

HIS HONOUR:   You are right, 255 to 258 and – what was the other one?

MR MARTIN:   262 to 265 – that latter part was where the jury interrupted.

HIS HONOUR:   Thank you, Mr Martin.  Now, what about those photographs, Mr Martin?

MR MARTIN:   Your Honour, the photographs – I have taken it down correctly – are in fact in the applicant’s summary of argument.

HIS HONOUR:   I thought I saw them there.

MR MARTIN:   Yes.  The Mitsubishi is on page 2 and what purported to be photographs taken by the applicant are at pages 4 and 6.

HIS HONOUR:   Were they before the trial ‑ ‑ ‑

MR MARTIN:   Yes, as I understand it. 

HIS HONOUR:   I suppose, for better certainty, it might be as well to say that the photographs forming part of the applicant’s outline can be included in the application book.

MR MARTIN:   Does your Honour anticipate they be included separately?

HIS HONOUR:   No, treated as being part of the application – I suppose the outline is the ‑ ‑ ‑

MR MARTIN:   The outline…..yes. 

HIS HONOUR:   Sit down, Mr Croll.  I am hearing from Mr Martin, now.  Mr Martin, what about the matter of damage to the left side of the Celica?

MR MARTIN:   There are a number of answers to that, your Honour.  They are dealt with relatively concisely by the Court of Appeal, paragraphs 6 through 10.  The major problem for the applicant was that, when he was questioned by police about this, he expressed that it could possibly – or, rather, he was not 100 per cent sure that he had not struck the vehicle.  And the evidence that he claims now supports the proposition that he had not done so is, one might have thought, inconclusive.  One looks at the photograph, exhibit 6, and the relevant part of the vehicle seems to be substantially obscured.

HIS HONOUR:   Can I ask you this, Mr Martin, the point that he seeks to make is that there is no damage.

MR MARTIN:   Yes.

HIS HONOUR:   Now, what flows from that may or may not be relevant, but, as an objective fact, there was either evidence of damage or there was not.

MR MARTIN:   Yes.  The evidence was inconclusive on that point.  There was evidence that there may have been, from the police officer.  He did not really give a very conclusive account of whether there was damage or not.

HIS HONOUR:   You would really probably take the view that the police officer did not prove that there was damage, is that right?

MR MARTIN:   If the Crown had to prove there was damage, then the police officer would be unable to do that, but his evidence was not compellingly to the contrary.

HIS HONOUR:   The objective fact seems to be that there was no satisfactory evidence of damage to the Celica.

MR MARTIN:   On the left‑hand side, yes.

HIS HONOUR:   Is that right?

MR MARTIN:   Yes.

HIS HONOUR:   Well, you are either in a position to gainsay that or not.

MR MARTIN:   I am simply trying to say, your Honour, that it was not capable of being resolved on a black and white basis.

HIS HONOUR:   Your submission would be that it does not matter, is that right?  Is it an important matter?

MR MARTIN:   The jury point, there was significant damage to the right side of the Mitsubishi and that was said to have been caused by the left side of the Celica striking it.  If there was no damage to the left side of the Celica, that is an argument that might be made, but the evidence is really not as conclusive as it is asserted to be. 

HIS HONOUR:   You could not really have damage to the right side of the Mitsubishi unless you had damage to the left side of the Celica, could you?

MR MARTIN:   One might have thought not.

HIS HONOUR:   I am not trying to decide it.  I want the Court that actually hears the special leave application to know what the facts are.

MR MARTIN:   I understand.

HIS HONOUR:   Where is the police evidence that you say was inconclusive?

MR MARTIN:   That is at page 70.  It is one of the pieces of evidence that the applicant referred to.  It is, I would think, referred to in the applicant’s outline already, but I am not going to try and pick that up now.  At page 70, at about line 20 onwards.

HIS HONOUR:   Is this the highest point that the Crown evidence went to as to damage?  Would that be right?

MR MARTIN:   I suppose so, yes, your Honour.  I should add that there is another aspect to the case, his admission, but I will not weary your Honour with that:

Well, you didn’t see any damage to the left side of the vehicle, did you ‑ ‑ ‑

HIS HONOUR:   What line is that?

MR MARTIN:   About 25.

HIS HONOUR:   Well, they are pretty evasive answers by the police officer.  It was hardly a day of glory for the police officer, I would not have thought.

MR MARTIN:   What had happened, your Honour – and I am not trying to say that it was – the point is that the applicant is now saying that the positive absence of damage proves that the event did not happen the way it did.

HIS HONOUR:   That is another point.  All I am trying to get is the objective facts.  I would not have said that was inconclusive evidence.  You would not hang a cat on that, if it were the decisive fact.

MR MARTIN:   The evidence of the eyewitnesses was that the two cars struck.  After that striking of the vehicles, the applicant’s car, in another event, if I can put it that way, struck a power pole, so the front right‑hand side of the applicant’s vehicle was substantially damaged and there are photographs of that.  It may be that the police officer was more focused on the obvious damage, without appreciating that the left‑hand side may later become significant.  That is why it would seem ‑ ‑ ‑

HIS HONOUR:   You would need to sing a better song than that, Mr Martin.  The police officer is evading the question, I think.

It was an old car.  It was an old Celica.  It probably had wear and tear, I suppose.

MR MARTIN:   All I can say, your Honours, is that that was the evidence and it, at the end of the day, did not satisfy the jury that the impossibility ‑ ‑ ‑

HIS HONOUR:   That is a different point.  I understand that.  But the objective fact seems to be, I would have thought, that the Crown did not prove – the Crown probably took the view it did not have to, but the objective fact seems to be that the Crown did not prove damage to the left side of the Celica.

MR MARTIN:   Yes, and I would add emphasis to the ‑ ‑ ‑

HIS HONOUR:   You cannot point to anything better or higher than that?

MR MARTIN:   There is also the evidence that – I am sorry.  The Court of Appeal placed emphasis on his admission to the police.  He said at trial that there was no collision, but, in evidence to the police at paragraph 10, he was not so plain.

HIS HONOUR:   This is in the Court of Appeal reasons?

MR MARTIN:   Yes.

HIS HONOUR:   That is not the same point, though.

MR MARTIN:   It is addressed as part of the same point by the Court of Appeal and that is why I raise it now.

HIS HONOUR:   Yes.  Let me just read this for a minute.  With all due respect to the Court of Appeal that seems to me to be an understatement.

Counsel for the respondent characterized that as a somewhat less than definite exclusion –

I would have said the evidence failed to establish any damage at all.  Anyway, I just want to be sure that, say, I allow page 70 to go in, Mr Martin, there is no countervailing or higher or better evidence, not somewhere to be found in the application book, upon which you would want to rely.

MR MARTIN:   No, your Honour.

HIS HONOUR:   It should be included, too, that is all I am saying.

MR MARTIN:   I am content for page 70, your Honour ‑ ‑ ‑

HIS HONOUR:   I am not saying anything turns on page 70, I am just not in a position to say, but ‑ ‑ ‑

MR MARTIN:   Your Honour has given me an opportunity and I do not point to any other particular.

HIS HONOUR:   You do not need to.  You are satisfied with the way in which the Court of Appeal has dealt with the matter?

MR MARTIN:   Effectively, yes.

HIS HONOUR:   I think I have probably sufficiently indicated my attitude.  I am disposed to allow page 70 in and those pages that you made a note of and drew to my attention.  Is there anything else you – I am certainly not going to allow the Grigg report in or that further affidavit.  I have excluded it.

MR MARTIN:   Thank you, your Honour.

HIS HONOUR:   Is there anything else?

MR MARTIN:   There is nothing else, sir.

HIS HONOUR:   Mr Croll, is there anything you want to say, but only in relation to what Mr Martin has said?  You do not get a chance to say it all over again.

MR CROLL:   Thank you, your Honour.  The evidence of Clarke about the damage he said he saw on that evening to the Celica – Sergeant Clarke had the intention to charge myself with driving a defective vehicle.  Now, a police officer, a traffic police officer, who has the intention to charge somebody for driving a defective vehicle will go over the whole vehicle and document everything that he sees wrong with the vehicle.

HIS HONOUR:   That is a point you can make in argument, but it is an argument point.  I am going to allow page 70 in and you can make whatever use you want to make of it.

MR CROLL:   Thank you, your Honour.

HIS HONOUR:   You were convicted of two counts of dangerous operation of a motor vehicle, were you not?

MR CROLL:   That is right, your Honour.

HIS HONOUR:   Right.  Now, is there anything – only in relation to what Mr Martin has said to me?

MR CROLL:   With respect to what Mr Martin said about the admission of myself to police ‑ ‑ ‑

HIS HONOUR:   Again, that is an argumentative point.  The evidence in relation to that is set out in the Court of Appeal reasons and the High Court will have them before it when it decides your application for special leave.

MR CROLL:   Could I have that part of my evidence put?

HIS HONOUR:   No, because it is summarised in the Court of Appeal.

MR CROLL:   Okay, well, I have nothing further, your Honour.

HIS HONOUR:   All right.  Thank you, Mr Croll.

MR CROLL:   Thank you.

HIS HONOUR:   This is an application, in effect, for supplementation of an application book which has already been filed in the Court.  The applicant was convicted of two counts of dangerous operation of a motor vehicle in the District Court of Queensland on 30 March 2004.  He appealed to the Court of Appeal of Queensland unsuccessfully.  Now he has filed an application for special leave to appeal to the High Court to have the convictions quashed.  The principal ground upon which he relies, or would seek to rely, is that the evidence adduced against him at trial was fabricated or, indeed, was so internally contradictory that it could not justify the convictions.

The applicant before me today seeks the inclusion in the application book of the whole of the transcript of the proceedings in the District Court, the whole of the transcript of the argument of the Court of Appeal and an affidavit exhibiting a report prepared by an engineer, Dr Grigg, dated 8 October 2004, a report commissioned and made well after the conclusion of all proceedings in the courts below.

I have already indicated that I would exclude the affidavit and the report exhibited to it.  This material does not go to any reason why special leave should be granted.  It would be sought to be relied upon by the applicant on his appeal if special leave were granted.  It is well established that this Court cannot and will not receive evidence on appeal even if the evidence in question could be regarded truly as fresh evidence.

As to the other material, as I have pointed out to the applicant, transcripts of trial proceedings are usually not included in application books.  I have, however, intimated and I now decide that I will allow a limited amount of the material upon which the applicant would seek to rely in arguing his application for special leave to be included in the application book.  The material in question consists of pages 70, 255 to 258 and 262 to 265.

I direct that these be included in the application book because the applicant would wish to stress that there is no objective evidence of damage of a particular kind to one of the motor vehicles in the conclusion, that this appears from those pages, that the Crown may have changed its ground in relation to them, and that these are matters essential to the points which the applicant would seek to make on his application for special leave.

He has attached to his outline of argument photographs which he says similarly support the argument that he would wish to advance.  In that respect these photographs are therefore in the material and in the application book.  They formed part of the evidence at the trial and to the extent that the Court which hears his application may think them relevant they will be regarded as being included in the application book.

There is nothing further, then, Mr Croll?  You understood those orders, did you not?

MR CROLL:   Yes, your Honour, thank you.  I have just got something.  I do not wish to put this in the application book, it is just the transcripts of the Court of Appeal.  It is just for general reading.  If I could just give it to you?

HIS HONOUR:   No.  I have disposed of the matter.  There is nothing further.  You do not have anything further, Mr Martin?

MR CROLL:   Thank you, your Honour.

MR MARTIN:   No, I have nothing further to say, thank you.

HIS HONOUR:   The effect of those orders are clear, is it not?

MR MARTIN:   I hope so, your Honour.  Yes, it is to me.

HIS HONOUR:   Thank you, Mr Martin.  Thank you, Mr Croll.

AT 11.57 AM THE MATTER WAS CONCLUDED