Gurung v MIMA

[2002] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 2001

B e t w e e n -

GARY NORMAN DIHM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 1.10 PM

Copyright in the High Court of Australia

MR P.A. CUTHBERTSON:   If the Court pleases, I appear for the applicant.  (instructed by Herman Bersee)

MR P.J.L. ROFE, QC:   May it please the Court, I appear with my learned friend, MR S.G. HENCHLIFFE, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

GUMMOW J:   There is an extension of time point, is there not?

MR CUTHBERTSON:   Yes, there is, if the Court pleases.  There is an affidavit filed.  The Court will see that the principal reason was waiting for a grant of legal assistance.  I wonder if the Court would be disposed to hear the application?

GUMMOW J:   Yes, just a minute.  Let us see what Mr Rofe’s attitude is to the extension of time.

MR ROFE:   If the Court pleases.  Where Legal Aid is involved, the attitude of the respondent is not to oppose the extension.

GUMMOW J:   Thank you.  Very well, then.  Proceed with your substantive submissions, if you would, Mr Cuthbertson.

MR CUTHBERTSON:   If the Court pleases, the ultimate complaint that is made here is that the direction by the learned trial judge at page 49 of the application book that the jury could not consider a hypothesis that something could have happened within the car or that something, perhaps an animal, may have crossed the road was wrong in that it was in conflict with two legal principles.  It is to be borne in mind, if the Court pleases, that this was a case where there were a passenger and a driver of the car.  The car left a rural road going around a shallow bend to the left.  It went off the road.

GUMMOW J:   That is right.  Now, what was the evidence as to the level of intoxication?

MR CUTHBERTSON:   It was between .095, I think, and .16 – between .12 and .16, depending on a history of drinking which was not ‑ ‑ ‑

GUMMOW J:   That is on the high side, is it not?

MR CUTHBERTSON:   The lower figure is .12 which still could be – I am sorry, .092 was the lower figure and .167 was the higher figure.  Certainly the lower figure is in excess of .08.  One did not have a history because the applicant was unconscious after the accident.  In his record of interview he had claimed that he had no recollection of the accident or even driving the car on that occasion.  That was presented to the court by way of the Crown case by way of evidence of the record of interview and there was no dispute in the sense that there was no suggestion by the Crown made that that was a dishonest claim of lack of memory.  So you have a case here where the driver claims to have no memory of how the accident occurred.

His counsel makes a submission to the jury that the jury should have a reasonable doubt because one does not know whether the blood alcohol level was responsible for the accident.  It could equally have been, so counsel said, something running across the road or something that happened within the car before the accident.  Now, I accept, if the Court pleases, that there is somewhat of a problem in relation to the suggestion of something running across the road because, although this was a rural road and cars saw the accident occur, there was no questions put to any witness about whether there were any animals in the vicinity, but, however ‑ ‑ ‑

GUMMOW J:   That is right, hence the point made about speculation, I suppose.

MR CUTHBERTSON:   If the Court pleases, even if no questions had been asked on that topic, in my respectful submission, it would have been proper for it to be left to the jury to consider that possibility, albeit that the judge might have said to the jury, “You will bear in mind, however, that no one has been cross‑examined about that topic”.

But, more importantly is the hypothesis that something might have happened in the car which caused a momentary loss of attention which could have been said to have been a momentary loss of attention such that it amounted to no more than driving without due care as opposed to the degree of criminal negligence which is required for driving dangerously.  In those circumstances, counsel having made that submission, the complaint is that the learned trial judge in taking it away from them erred in two respects.

Firstly, in respect of the principle in Broadhurst’s Case which is in the applicant’s book of authorities at page 459, the principle there being set out about a third of the way down the page, the reference to Russell v H.M. Advocate.  It goes down to about two‑thirds of the way down the page.  Far from taking the issue away from the jury, we say he should have not only left it but gone further and given them a warning in accordance with the warning suggested by the Privy Council in Broadhurst’s Case.

Further, if the Court pleases, we say it breached another legal principle and that is the legal principle referred to in Barca’s Case.  Barca’s Case is in the respondent’s list of authorities, a judgment of this Court.  The particular principle is at page 105 of the judgments of their Honours, the former Chief Justice Gibbs and Justices Stephen and Mason.  It starts about six lines down and proceeds to about two‑thirds of the way down page 105.  I would summarise that principle to be that:

it is not incumbent upon the defence either to establish that some inference other than that of guilt . . . can be drawn from the evidence or to prove particular facts that would tend to support such an inference.

It is sufficient that the overall facts as established beyond a reasonable doubt leave open a hypothesis consistent with innocence and that hypothesis consistent with innocence is that something may have happened in the car, perhaps between the passenger and the driver, perhaps the driver bending down to change the radio station or pick something off the floor or look at a map – anything – and particularly having regard to the fact that there was no challenge to his claim to the police that he had no memory.  There was evidence he was found unconscious in the wreck.

It was, in our respectful submission, most unfair to remove that process of reasoning from the jury.  I say that was the ultimate complaint we make.  The initial complaint we make is that, if the Court pleases, this went on leave to appeal to a single judge, pursuant to the Criminal Law Consolidation Act of South Australia, a single judge having the powers of the Full Court in relation to leave to appeal applications.

GUMMOW J:   It then went to the Full Court, did it not?

MR CUTHBERTSON:   It went to the Full Court under our rules which provide that it goes to the Full Court.  You do not get a chance to make oral submissions.  It goes on the papers.

GUMMOW J:   It is done on the papers, yes.

MR CUTHBERTSON:   The Full Court delivered a very short judgment.

GUMMOW J:   Yes, it appears at page 72.

MR CUTHBERTSON:   Yes.  Then the test for the Full Court and the single judge on the application was, firstly, is it a question of law because if it is a question of law under the Act the appeal to the Full Court is, as of right – if it is not a question of law the appeal is by leave and the criterion for leave is that there be an arguable case.

So our initial complaint is that the Full Court erred, and the single judge, for that matter, in not holding it to be a question of law, for which there was ‑ ‑ ‑

KIRBY J:   But we would not get into that, would we?  By the time it would come to us, if by special leave, we would not be giving special leave simply to cure the journey; we would be dealing with the substance of the matter.  We can deal with it for ourselves without looking at whether the Full Court should have given leave or should have held that it was a matter of law or not.  So we would not get into that, I would not think, would we? 

MR CUTHBERTSON:   That would be our preferable position.  We put as an alternative position that the Court might simply, if the Court determined to hear the matter, make an order that the Full Court was in error in not hearing the matter on its merits ‑ ‑ ‑

KIRBY J:   No, but that is not quite the point I put to you.  The point I put to you is:  if we thought the only error that the Full Court had made was an error in judging the matter as a question of fact and not of law but that the matter of law was meritless, we would not grant special leave in order to allow that procedural question to be elucidated. 

MR CUTHBERTSON:   Yes, I understand that, if your Honour pleases.  With respect, I would agree with that. 

KIRBY J:   So we are concentrating on whether or not, when one takes into account the objective fact of the intoxication of your client – which was a powerful evidentiary factor – the warnings which were correctly given repeatedly by the trial judge about the onus and standard of proof and the warning against, in effect, the speculation, that where they are looked at as a whole, and looking at that warning in its context, it did not involve error, that this Court would not intervene in the outcome because the outcome involved no miscarriage of justice.  Now, what is wrong with that? 

MR CUTHBERTSON:   Well, if the Court pleases, the direction given, we say, was in error.  This matter arose because counsel for the applicant in effect said to the jury, “You must not speculate”.  He was then talking about the prosecution case:  “You must not speculate about matters.  The prosecutor needs to prove the case beyond a reasonable doubt”.  Then he went on to speak about the suggestion that the accident at page 49 of the appeal book, and he led up to ‑ ‑ ‑

KIRBY J:   But the trial judge gave the warning at the summing-up, page 20: 

You will also recall that I told you that, before you can draw and act upon any inference you must be satisfied beyond reasonable doubt that it is the only rational and reasonable inference which emerges from the relevant fact or facts from which you draw your inference. 

So that looks in its context to be an accurate instruction to the jury and it amounts, in effect, to saying to them:  “Don’t speculate.  You have to base it on evidence, which can include inference, and you can draw your conclusions from the evidence and the inference, not just from things you make up in your own mind about rabbits running over the place”, and so on. 

MR CUTHBERTSON:   Well, I do not have any problem with what he said thus far, but then when one goes to the last paragraph on page 48 he says: 

On the other hand, Mr Boucaut, counsel for the accused, says there is simply no evidence as to how the car came to be on the wrong side of the road.  He said there was simply no evidence as to why this happened.  He said that, whilst Dr James –

et cetera, and it goes on to the next page.  Then at lines 1, 2 and 3: 

He said that there was no evidence that that was the cause any more than it might have been something else.  He said maybe it was just inattentive driving, or maybe something ran on the road, or maybe he was doing something in his car and all of a sudden he thought, ‘Oh, hell’ ‑ ‑ ‑

KIRBY J:   Yes, but these are jury matters.  I can imagine a jury saying, “Oh, hell, a man with this level of intoxication, this level of alcohol consumption”, we’ve got that as an objective fact.  It is proved objectively on a blood test, and that’s what caused the incident beyond reasonable doubt”. 

MR CUTHBERTSON:   Certainly, that was the Crown’s suggestion, but the most important lines are: 

However, I must tell you that with respect to the suggestion that the accident may have been ‑ ‑ ‑

GUMMOW J:   Yes, well, we looked at that. 

MR CUTHBERTSON:    ‑ ‑ ‑ et cetera: 

There is simply no evidence which would permit you to draw the inference that something run out onto the road or that the accused was doing something in his car and his attention was distracted. 

Now, the complaint is, there does not have to be evidence of that, and what his Honour in fact should have said is:  “It’s not possible for the defence to get any evidence about what happened in the car and whether his attention was distracted because, if you accept it as a reasonable possibility that he could not remember anything about the accident because he had a head injury, then you have to bear in mind, as was said in Broadhurst’s Case, that, if anything, it might cause more difficulty in establishing the case beyond a reasonable doubt, because that alternative scenario cannot, by force of circumstances, namely, the inability of the accused to remember, be put to you”. 

He should have directed them that they can take that possibility, whether one calls it speculation or not, into account – the fact that something might have happened and the applicant cannot depose to it because of his head injury.  That, in my respectful submission, is a very important principle, that here is someone who says, “I can’t help you about what happened and I can’t defend myself because I have no recollection because I received a head injury”.  In those circumstances, it was in error for the learned judge to take away that way of looking at the matter from the jury, in other words, to take away from them a hypothesis consistent with innocence that the defence could not, through the circumstances of the injury, be able to present to the jury.  They should have been able, in our submission, to have considered that possibility.  That is where the error lies.  If the Court pleases. 

GUMMOW J:   Thank you.  We do not need to call on you, Mr Rofe.

The Court is not convinced that any error resulting in a miscarriage of justice has been shown in this case.  Complaint was made concerning the classification of the appeal to the Supreme Court of South Australia as one involving a question of fact, not of law.  However, it was properly agreed by counsel for the applicant, in our view, that this issue did not arise if the appeal, in any event, lacked substantive merit.

The evidence of intoxication of the applicant at the time of the incident was undisputed.  Inevitably, that evidence would have been a powerful consideration in the reasoning of the jury as to the cause of the incident leading to the offence for which the applicant was convicted.  The trial judge repeatedly and correctly instructed the jury as to the onus and burden of proof borne by the prosecution.  The warning which was given, in effect, against speculation was correct viewed in its context.  It did not amount to imposing on the applicant an onus to produce evidence of an alternative possible cause of the incident consistent with innocence. 

It follows that special leave is refused.

AT 1.30 PM THE MATTER WAS CONCLUDED