James v The Queen

[2013] HCATrans 183

[2013] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M35 of 2013

B e t w e e n -

SAMUEL JAMES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 1.30 PM

Copyright in the High Court of Australia

MR T. KASSIMATIS:   May it please the Court, I appear for the applicant.  (instructed by Valos Black & Associates)

MR P.B. KIDD, SC:   If the Court pleases, I appear with MR B.L. SONNETT for the respondent.  (instructed by Director of Public Prosecutions (Vic))

BELL J:   In this matter, gentlemen, I think we might be assisted by hearing from Mr Kidd first.

MR KIDD:   Your Honours, the basis of this appeal is essentially that the lesser offence of injury was reasonably open, or that it was viable, which essentially is what his Honour Justice Priest found.  It is our first submission that on the evidence in the case such a scenario was not practically and fairly open.

BELL J:   It is more difficult making that proposition good when one member of the Court of Appeal found that it was.

MR KIDD:   Look, I accept that, your Honour, but just turning to the, perhaps, two propositions upon which we principally rely, the first, in order to meet that answer and obviously meet Justice Priest’s finding, the first proposition is this:  that without descending into the law too much, all of the cases acknowledge in non‑homicide cases at the very least that whether an alternative of a lesser offence should be the subject of a direction it involves some assessment of the way in which the case has been presented at trial.  Now, it is true that forensic decision does not necessarily answer the point, but the question must be answered, not in some vacuum, but having regard to the premises of the way in which the case was conducted, not with a reconstructed theoretical case. 

Now, here, the starting point, we say, is how was this case presented?  The defence case was it was an accident, pure and simple.  The defence case was, “I tried to avoid hitting him” – this emerges in his record of interview – “I tried to avoid hitting him and I did avoid him when he departed from the scene”.  His position was not only did he not strike him, not only did he not intend to strike him, but he did not in fact strike him.  That was the defence case.  The prosecution case was that he deliberately struck him and the prosecution case was essentially that if he deliberately struck him inevitably he had the requisite intention with respect to serious injury.

Now, the prosecution case in the broader - and then I will descend into the evidence in more detail – in the broad, the prosecution case was if you strike a person with a motor vehicle, except for perhaps in the most trifling or minor manner, then any person is going to know that serious injury will follow, or at least turn his or her mind to that probability and conclude that it is probable that serious injury would follow.  At the end of the day the mechanism used here was not a punch or a minor weapon.  It was a vehicle. 

Now, in this instance, we then turn to the evidence and the evidence revealed that this was no minor or trifling contact.  The evidence revealed that this was a very significant impact and the evidence comes from essentially two sources, the first source being the medical evidence as to the actual nature of the injuries suffered by the victim. 

Now, the injuries were on any view extremely extensive, multiple occasions of body trauma.  He was hospitalised for months and the doctor concluded that in light of those very extensive and very serious injuries, and I am using that term not in a legal sense, in light of those very extensive and very serious injuries the medical evidence, and that is Dr Cunningham, concluded that not only were they extensive and life threatening, but because of the combination of the injuries there had to have been at least two impacts.

He concluded that there were three or four related scenarios which may have accounted for those two impacts.  They involved the initial strike of the vehicle which the doctor concluded would have been a frontal strike, a frontal significant strike.  The second impact on the body could have occurred from a number of ways, either following the initial strike, the body hitting the ground, following the initial strike perhaps the body hitting the car again and…..there and hitting the car or, alternatively, the body being struck by the car initially and then being run over. 

In any event, the doctor concluded that the initial blow had to be a very significant blow and Dr Cunningham’s evidence was that a glancing blow was highly unlikely.  So the only expert that gave evidence about the nature of the injuries in this case concluded that a glancing blow was highly unlikely, and that conclusion was not challenged.

We then go to the evidence of the eyewitness, Monica Woods.  Now, Monica Woods gave evidence.  I will deal with her evidence in two categories.  The first is the evidence that she gave about the initial impact and the second is the evidence that she gave that, subsequent to the initial impact, the car ran the victim over whilst on the ground.  Let us just deal with the first impact, or the initial impact.

Her evidence was that it was a significant impact and as a result of the impact the body of the victim was thrown into the air a few metres, whether it is two metres or a few metres, so, again, her evidence is not of some trifling contact, it is not of some minor glancing blow with the car at minor speed, but rather a significant impact to such an extent that she sees the victim flying into the air.

BELL J:   But, Mr Kidd, I think Justice Priest drew together the submissions which, as it were, raised issues about the reliability of that witness’ evidence – this is at application book 290, paragraph 179, and then his Honour expresses the conclusion at 180 that:

the jury would have been entitled to have a reasonable doubt as to Monica Woods’ version of events –

Now, that may not be so, but for the purpose of the consideration of this application that is a matter that seems to me you should bear in mind in developing submissions by reference to her evidence.

MR KIDD:   Yes.  Can I deal with that, your Honour?  I suppose I had his Honour Justice Priest’s findings there concerning whether the jury could reject her evidence in mind when I took your Honours to the two impacts, because her evidence of the initial impact was never challenged.  She did give prior inconsistent statements with respect to the second impact being the running over, and that is what his Honour Justice Priest is referring to.  At trial she said there were the two impacts which I have mentioned:  the initial impact, thrown in the air; the second impact, the victim is run over.  Two matters were brought to her attention, a prior inconsistent statement and also the evidence that she gave at the committal hearing, which was to the effect that she did not see a second impact.

So in the prior inconsistent statement, police statement and the committal evidence, the effect of her evidence was that she had not seen him run over on the ground, but her evidence as to the initial impact, which was on any view forceful and significant, never changed and was never challenged.  So it is our submission, with the greatest of respect, that his Honour Justice Priest’s finding that it was open to the jury to reject her evidence, we say, just goes too far.  It was clearly open to the jury, one might say, to reasonably have doubts about whether or not she saw the car run the victim over subsequent to the initial impact, but we say that it was not, it would have been capricious for the jury to reject her account of the initial impact.

We say that for two reasons.  first, she was never challenged on that and she was always consistent with respect to the first impact; second, her account of the initial impact is supported by the evidence of Dr Cunningham, and Dr Cunningham, as I indicated before, gave evidence that this involved a very significant impact from a vehicle, either the front of the vehicle or the rear of the vehicle, and that a glancing blow was highly unlikely, so Dr Cunningham’s evidence completely supported the account of Monica Woods with respect to the initial impact.

His Honour Justice Priest, at 290 in the application book at paragraph 179, says this at the bottom of 179 - I might read most of that paragraph:

Monica Woods was cross‑examined with a view to undermining the accuracy and reliability of her observations –

True enough, but really only with respect to the running over‑

and it is, I think, clear, that she did not include in her original statement to the police some of the more graphic aspects of her later account at trial.

Well, we quibble with that because she always included in her statement, and in her evidence, the graphic details concerning the initial impact, which was of a victim being thrown into the air after a bang.  Then his Honour goes on:

Plainly it would have been open to the jury to have had a reasonable doubt about those aspects, and the accuracy of her evidence more widely.

Again, with the greatest of respect, we cavil with that.  It just cannot be the case when a witness gives evidence about two events within one episode, is not challenged about the first event and, indeed, there is corroborative evidence or supportive evidence from the medical expert concerning her account of the first event within that episode, we say that a jury just cannot capriciously reject all of her evidence more widely and then, continuing with that:

Similarly, although again the jury would not be entitled capriciously to reject the evidence of opinion from Dr Cunningham, the jury were not bound to accept it either.

Well, we say there was no basis on which the jury could have rejected the evidence or not accepted the evidence of Dr Cunningham, whose evidence was crystal clear and again, was not challenged - significant impact, extensive and life‑threatening injuries, glancing blow highly unlikely, never challenged.  No defence evidence was ever led to take issue with those conclusions. 

Now, we contend it is the combination of Monica Woods’ evidence with respect to the initial impact and the unchallenged evidence of Dr Cunningham which equals a very significant blow, a very significant contact between the vehicle and the - so significant that it excludes any state of mind less than serious injury. 

I commenced my submissions by submitting to your Honours that whether or not an alternative scenario is fairly and practically available, whether it arises in the context of the case, it, at least in part, is influenced by the parameters of the case and the way in which it was framed by the parties.

BELL J:   There, Mr Kidd, you encounter what does appear to be differing approaches in New South Wales and in Victoria respecting the import of Gilbert and Gillard, do you not?

MR KIDD:   Your Honour, I accept that insofar as this question goes there may well be a difference and that is if defence counsel makes a forensic decision not to pursue or not to have an alternative left, under the Victorian line of authority my friend is correct and we accept that, that is a relevant consideration in determining whether the interests of justice require the alternative to be left.  Under some of the interstate authorities they do not go that far, but we do submit that all the authorities at least contend this much:  that whether or not an alternative arises fairly and practically on the evidence is at least in part determined by the way the case unfolded and the course of the trial.

BELL J:   You say that is consistent with Gilbert and Gillard?

MR KIDD:   That is consistent with Gilbert and Gillard.  To that extent that when one is assessing whether the evidence does throw up an alternative one cannot look at it theoretically, one has got to look at it ‑ ‑ ‑

BELL J:   Well, one looks at the evidence.

MR KIDD:   Well, one looks at the evidence, but also the way in which the course that the trial took.  Can I give an example, your Honour?

BELL J:   Yes.

MR KIDD:   If in this case the record of interview was to this effect:  “Look, I only intended to scare him with the car, but I obviously lost control of the wheel” or, “I only intended to slightly touch him on the side of the car as I drove off, I certainly did not intend to have him thrown up in the air and experience extensive and life‑threatening injuries resulting in hospitalisation for three months”, if he had put that then the alternative would have been a live issue and it would have been a live issue in part because of the assertion made by the accused in his record of interview.

BELL J:   But that is a different point, that is merely to observe that either, on the material before the jury, there is a basis for a lesser verdict to be left or there is not, but it does not grapple with this issue that seemed to me to, at least in part, inform your submissions, which was that one looked to the conduct, in a forensic sense, of the trial.

MR KIDD:   Well, only to this extent, that forensic decisions inform the conduct of the trial.  I mean, forensic decisions inform the course of the - trial takes, forensic decisions create the parameters that exist in a trial, so indirectly forensic decisions always play some kind of role.  What Gilbert and Gillard says is that ultimately if, when looking at it realistically and practically, if, on the evidence, there is a viable alternative, the fact that defence counsel abstains from advocating that it be put is no answer to it not being put.  But ultimately we submit here, even if we put to one side my submissions concerning the parameters of the trial, when one does look at the evidence, the striking of a victim using a mechanism such as a moving motor vehicle in the circumstances which objectively occurred here provides compelling evidence from which an inference can be drawn as to the state of mind of the driver.

It is our submission that only one reasonable inference was open here, at least with respect to the nature of the injury, which was that it was serious.  The other two points that we make are that the Crown did not need to prove really serious injury here in the element of murder.  On any view, here really serious injury was caused, I mean, life‑threatening injuries, hospitalised for three months, serious injury.  We need to essentially keep focus on the reality that serious injury is not a particularly high threshold under the Crimes Act as it existed at the time.  It is now going to be modified, but as it existed at the time “serious injury” was defined as a combination of injuries. 

His state of mind did not have to be fixed towards life‑threatening injuries or permanent injuries.  There are examples, in this State anyway, where serious injury has been found with black eyes and chipped teeth and the sort.  It does not need to be broken bones or permanent injury. 

The other point that we seek to make is that the real vice in an alternative not being left is that a jury may be reluctant to acquit when they consider that the person is responsible, at least to some degree, for the criminal conduct.  That is the vice here, that a jury thinks that the person is involved to a certain level, but perhaps not involved to the level to which the charge speaks, but they do not want the person to walk off scot‑free and avoid all criminal sanction and responsibility. 

If the jury in this case had a concern about the state of mind of the applicant and if the jury believed, well, maybe he did not intend to cause serious injury, one would have expected them to have moved down to the lesser alternative which was charged, which was recklessness ‑ ‑ ‑

BELL J:   This is the recklessness, yes.

MR KIDD:   With recklessly cause serious injury, but they did not.  Now, it is our contention that that is proof positive that in this case they were not so compromised.  My opponent relies on two aspects of the evidence or the course of the trial, I will deal with just both quickly, which he contends throws up the lesser alternative that was not charged.  The first is the prior statement of the victim, Mr Sleiman, who made a prior statement to the police and in that prior statement - I think Justice Priest picks up on this and also places reliance upon it - he made a statement to the police where he said that the applicant:

put the car into reverse and swung the steering wheel so that the front of his car hit me as he reversed”.

Justice Priest and my friend contended, well, there you are, there is evidence of glancing.  We, in response to that…..in our written submissions is essentially the following:  that that must be seen against the background, or in the context of the objective evidence in the trial which we say was comprised of Dr Cunningham’s evidence, the nature of the injuries and the fact that he excluded glancing as highly unlikely. 

It must also be seen in the context of the uncontested aspect of the evidence of Monica Woods of the significant impact.  It also must be seen in the context of the victim’s evidence.  He had been in hospital for three months.  He made that statement in hospital, and ultimately he can recall very little about this episode in his evidence.  He maintains he was run over, that is essentially what he maintains. 

So, yes, that was relevant evidence, it had to be taken into account, but we say, on it is own, when it is seen in the context of the evidence of the case, it is not a justification for contending that in this particular case a lesser alternative was clearly open.  I think I am running out of time, your Honour.

BELL J:   I think you are, Mr Kidd.

MR KIDD:   Thank you, your Honour.

BELL J:   Thank you.  Yes, we do not need to hear from you, thank you, Mr Kassimatis.  There will be a grant of special leave in this matter.  The appellant’s submissions and list of authorities are to be filed and served by 20 September 2013.  The respondent’s submissions and list of authorities are to be filed and served by 11 October 2013 and the appellant’s reply is to be filed and served by 25 October 2013.  I remind the parties that compliance with the timetable is viewed as extremely important.

MR KIDD:   If the Court pleases.

MR KASSIMATIS:   If the Court pleases.

BELL J:   Yes, thank you.

AT 1.52 PM THE MATTER WAS CONCLUDED