Crowe v The Nominal Defendant

[2000] HCATrans 67

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 1999

B e t w e e n -

SHANE MICHAEL CROWE

Applicant

and

THE NOMINAL DEFENDANT

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2000, AT 9.30 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR R.F. SUTHERLAND, for the applicant.  (instructed by James Purvey & Associates)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR B.D. DOOLEY, for the respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honour.  Can I hand your Honours a copy of a map which may assist in the argument.  My learned friend has a copy.  The facts for this case begin at Finley which is in the bottom left corner.  It involved a vehicle being driven to Leeton, which is the red circle just above the middle of the page.  Five people were in the car:  the applicant, a young woman named Chellou, and three men, the applicant’s brother and two other men.  Two men were dropped at Leeton and they then began to drive back to Finley.  At the Jilinbar Roadhouse which is marked at the crossroads just before Narrandera, Miss Chellou began to drive and drove to a point just about at the blue cross which is marked just above Finley which was the point of the accident, that is, since the distance from Finley to Leeton was 215 kilometres, it would appear of the order 170 or 180 kilometres that Miss Chellou had driven.

At the point marked 10 kilometres north of Finley, the vehicle they were travelling in rolled.  The plaintiff suffered brain damage and the case turned entirely on whether it was he or Miss Chellou who was driving at the time of the accident.

The plaintiff’s brother gave evidence that a short time before the accident he, having been asleep in the car – it was in the early hours of the morning – was wakened by the car swerving.  He asked the driver, who was Miss Chellou, what it was.  She said she had swerved to avoid a kangaroo.  She agreed that that was so and agreed that it was about 5 minutes south of Jerilderie.

Her evidence then was variously that at some time between 5 to 15 minutes after that, that is between 10 and 20 minutes south of Jerilderie, she had stopped to relieve herself and when she came back to the car the applicant had clamoured into the driver’s seat.  If it was 20 minutes south of Jerilderie that that happened, at the 80 kilometres an hour speed which she conceded she was driving at, it would be virtually at the point of the accident which was established beyond controversy at 10 kilometres north of Finley.  It was conceded, at least implicitly in Miss Chellou’s evidence in cross‑evidence that she claimed that the change of driver’s had occurred only a minute or two before the accident.

The only evidence in the case which went directly to this point was that of Miss Chellou and Basil Crowe, the applicant’s brother, because the applicant was brain damaged and had no memory of the event.  The strongest point in favour of the applicant was that Miss Chellou, on the morning of the accident – as I said, it happened in the early hours of the morning; I think about 5 am – at about 6 am at the scene she gave a statement to the police which is recorded most conveniently, probably, in our submissions at page 28 of the application book at line 34:

Q.  Who was driving the car?
A.  It was Shane –

that is the applicant.

I picked them up at Leeton because they had been drinking, but Shane ended up driving from Leeton.

Then at about midday on the same day – I am sorry, that was unsigned, your Honours – at the Finley hospital there was a statement written out by a police officer in the police notebook:

We left Leeton sometime after midnight.  Shane Crowe was driving.  Basil Crowe was in the front passenger’s seat.  We stopped at a roadhouse some way out of Leeton, somewhere out of Leeton for about half an hour.  We started back to Finley.  I fell asleep some time after that and I woke up and realised we had had an accident.

GLEESON CJ:   There seems to have been a great deal of doubt entertained about the evidence of the police officers.

MR TOOMEY:   Yes, your Honour.

GLEESON CJ:   What was the reason for that?

MR TOOMEY:   Well, your Honours, not to put a too finer point on it, it appeared to his Honour and it appeared to us, and it was put in cross‑examination, that that sought to stitch up the applicant to suggest that he must be the driver and had given false evidence which might cause the court to hold that view.  They gave evidence that the applicant’s boot was under the brake pedal of the vehicle, which was a virtual impossibility since the vehicle was largely on its roof, and one of the police officers who gave that evidence had made a statement within hours of the accident in which he placed the applicant’s boot not under the brake pedal but in the passenger seat.  There were other matters also but there were matters in the evidence which his Honour regarded as being explicable only on their attempting to fudge the evidence.

GLEESON CJ:   You have concurrent finding of facts against you.

MR TOOMEY:   Yes, your Honour, we do.

GLEESON CJ:   And the whole point of the appeal really is to seek to disturb or overturn the concurrent findings of primary fact.

MR TOOMEY:   Well, your Honour, that is true but the concurrent finding of fact is essentially that although his Honour the trial judge did not properly deal with the inconsistent statements of Ms Chellou that there were impediments to us winning which prevented that having the effect we contended it should otherwise have.  Where there was only the contest between Basil Crowe, the plaintiff’s brother, an unsatisfactory witness with a bad criminal record, the question of the competition between him and the woman, Ms Chellou, demanded that his Honour properly consider those matters which affected Ms Chellou’s credit.

GLEESON CJ:   It ultimately all turned on onus, did it not?  The plaintiff simply failed to satisfy the trial judge or the Court of Appeal of a fact which was essential to his success, that is to say that he was a passenger in the car as distinct from a driver.

MR TOOMEY:   Your Honour, that is so but our case was not that his Honour must have found had he properly considered the evidence that Ms Chellou was the driver, but that the case was not tried according to law in that his Honour did not properly consider the force of the failure of Ms Chellou to tell the police at the time and six hours later that she had driven the car, even on her own story, to a point very close to the point of the accident and that, we said, was a crucial piece of evidence because she had no explanation of it.  She said, “I must have been confused,” and then she just kept on saying, “I do not know.  I do not know.  I do not know,” when asked why she had not told the police this fact.

GLEESON CJ:   But what you would ultimately asking this Court to do is overturn concurrent findings of fact without this Court ever having seen any of these characters.

MR TOOMEY:   Yes, your Honour, but, your Honour, if I may point this out.  The question in the Court of Appeal was not whether there should have been a finding one way or the other but whether Mr Justice Newman had properly dealt with the evidence of Ms Chellou so that the applicant had a fair trial.

McHUGH J:   But was this trial governed by the Evidence Act?  Because it is a point that may make a difference in this respect, that if it is governed by the Evidence Act then the contents of a statement may be evidence in the case, otherwise they can only be used in terms of inconsistency, which means you are still left with Basil Crowe’s evidence as the only evidence you have got going for you in terms of driver.

MR TOOMEY:   Yes.  No, it was governed by the Evidence Act, your Honour.  Can I say this?  The point which really appears is that the Court of Appeal – I ought to tell your Honours how the evidence came out.  Ms Chellou was cross‑examined on the police notebook.  It was put in her hand.  She conceded that she had signed the second of the statements to acknowledge that it was her statement.  The book did not go into evidence but the statement was read to her.  It was put into her hand.  She acknowledged it was her signature and she acknowledged that she had signed it to acknowledge it as her statement.  The Court of Appeal at 14 line 19 of the application book set out the question accurately, set out the judgment of Justice Newman so far as it was relevant accurately and at application book 16 line 35 said this:

Normally, if there is a conflict between the testimony of two witnesses, the decision of the judge as to who is to be preferred must be based in whole or in part on demeanour, and is therefore beyond review by an appellate court.  However, learned senior counsel for the appellant, Mr Toomey QC, urged strongly that his Honour’s finding as to Ms Chellou’s evidence was marred by error, and in particular by his Honour’s failure to appreciate that Ms Chellou’s statements to the police were her own statement, not statements by the police to record what she allegedly told them.

And that, your Honour, arises from the passage from Justice Newman’s judgment which is reproduced by the Court of Appeal at 15 line 30 where Ms Chellou’s statement was reproduced by the trial judge and he then said:

“This statement was put to her by counsel for the plaintiff in cross examination.  When first pressed by counsel she stated that she did not remember saying that.  Later, when pressed again, she said she must have been confused.  The note was made by Snr Constable Robertson.  I have already dealt with his evidence.  In my view I cannot place any reliance upon any record kept of this accident by that policeman.

McHUGH J:   Now, is that not the sentence which is decisive so far as the grant of special leave, the appeal is concerned?

MR TOOMEY:   Yes.

McHUGH J:   How can you get over that?

MR TOOMEY:   Your Honour, because his Honour did not appear to appreciate that it was a signed record and thus became Ms Chellou’s record, not the police officer’s.

McHUGH J:   I mean, the trial judge has done hundreds of these cases, as have you, Mr Toomey.  When a policeman prepares a statement, there is an accident and somebody signs it, what evidentiary‑ ‑ ‑

MR TOOMEY:   Well, with respect, it is not quite like that, your Honour.  One would assume he talks to the witness.

McHUGH J:   Well, yes, of course, he does and he writes it down and his credibility is destroyed to such an extent that the judge wanted to send the papers off to the Attorney‑General, did he not?

MR TOOMEY:   Yes, but, your Honour, no questions were ever directed to the police officers to suggest that that was in any way manufactured and Ms Chellou acknowledged in evidence that she had made the statement to the police.

McHUGH J:   Well, she had made a statement.

MR TOOMEY:   No, no, that she had told the police that which appeared in the signed‑ ‑ ‑

McHUGH J:   What, every word of it or only the fact about the driving?  She did not admit to every word, did she?

MR TOOMEY:   I do not think that is so, your Honour, but she acknowledged that she had told those things to the police.

GLEESON CJ:   But ultimately what Justice Newman did was accept the evidence that she gave in court.

MR TOOMEY:   Yes, he did but he did that without, in our respectful submission, properly considering the effect on her credit of the inconsistent statements made virtually contemporaneously.

McHUGH J:   But how do we know he did not consider that?

MR TOOMEY:   Well, we can only know but what he said, your Honour.  He attributes the statement to the police officer, not to Ms Chellou.  He says, “Because I do not believe the police officer, I do not accept the statement.”  But there was no foundation for that.

GLEESON CJ:   But at the end of the day, against a background that was described as very confusing in relation to various people’s accounts of what happened the decision just turned upon the acceptance by Mr Justice Newman of the evidence given by one particular witness before him.

MR TOOMEY:   Yes, it did, your Honour, but, with respect, for a proper judicial consideration of the evidence of that witness there had to be a full consideration of it, including a proper consideration of the evidence which was against her and which suggested she may be lying.

GLEESON CJ:   It is pretty hard for this Court to say, is it not, without ever having seen Ms Chellou or any of these other people, Mr Justice Newman should have concluded that she was committing perjury.

MR TOOMEY:   No, no, your Honour, with great respect, we do not say that.  All we say is that the applicant did not have a fair trial because it appears that his Honour did not properly considered that.  Had he considered it and said, “I find for the defendant,” we could have no complaint at all.

GLEESON CJ:   There was not any suggestion, was there, that she could have been mistaken in her recollection about this?

MR TOOMEY:   Well, she said it.  She said, “I was confused.”

GLEESON CJ:   No, but presumably your case was that when she gave evidence before Mr Justice Newman she was deliberately lying about this.

MR TOOMEY:   Yes.

GLEESON CJ:   What was put to her as to what might be her motive for deliberately lying about it?

MR TOOMEY:   Because she conceded that at the scene before she spoke to the police she knew that the applicant was grievously injured and she was afraid of the consequences if she were the driver.  May I just take your Honours to the way the Court of Appeal dealt with the matter finally?  Their Honours conceded at the bottom of page 17 that “It would be difficult to find more confusing evidence” than that given by Ms Chellou.  They set out our submission and then at line 32 they said:

However, there are a number of impediments to accepting Mr Toomey’s submissions in full.  First, neither of her statements to the police are in evidence ‑

well, we say about that, your Honours, that that is incorrect.  The statements were in evidence.  They had been acknowledged by her and at least one of them signed by her and as Chief Justice Barwick said in Driscoll’s Case, “If you sign the document, it becomes your document” –

secondly, the transcript of her evidence in the Local Court is not in evidence; thirdly, we do not know whether the police statement she signed was in her handwriting or the policeman’s handwriting –

well, I think it appeared, in fact, your Honours, that it was the policeman’s handwriting –

fourthly, the quotation from her statement contained in his Honour’s judgment does not quite affirm that the plaintiff drove from Jilinbar to Finley –

well, in our respectful submission, that is the only fair reading of it –

and, fifthly, there is no means of knowing whether her evidence in the Local Court was the same as, or different from, that given before Newman J.

Your Honours, the important point of those, we say, is the statements to the police and their Honours, we say, never dealt with Justice Newman’s failure to appreciate that the statement had become Ms Chellou’s statement so as to properly consider the evidence between Basil Crowe and Ms Chellou.  Now, it was a difficult case for a plaintiff.  There was a paucity of evidence and that which was there, in our respectful submission, in a serious case for a young man ought to have been properly considered and it was not.  May it please your Honours.

GLEESON CJ:   We do not need to hear you, Mr Hislop.

MR HISLOP:   May it please the Court.

GLEESON CJ:   The Court is of the view that this case raises no question suitable for a grant of special leave to appeal and is not satisfied that the interests of justice in the particular case require such a grant.  The application is dismissed.

Can you resist an order for costs, Mr Toomey?

MR TOOMEY:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

AT 9.52 AM THE MATTER WAS CONCLUDED