Jobandeep Gill v The Queen
[2016] VSCA 261
•4 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0032
| JOBANDEEP GILL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 October 2016 |
| DATE OF JUDGMENT: | 4 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 261 |
| JUDGMENT APPEALED FROM: | DPP v Gill (Unreported, County Court of Victoria, Judge Chettle, 6 November 2015) |
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CRIMINAL LAW – Appeal – Conviction – Evidence – Evidence of lies – Relevance of lies – Admissibility of evidence of lies – Culpable driving causing death – Accused’s explanation for collision – Explanation for collision given at scene of collision – Explanation false – Whether evidence of explanation relevant – Whether evidence of explanation admissible – No objection taken to relevance and admissibility at trial – Forensic choice by accused’s counsel – Evidence relevant and admissible – Judge’s charge about evidence unduly favourable to accused – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Ternovski | Michael J Gleeson & Associates |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA
KYROU JA:
On 28 February 2014, a collision occurred between a truck driven by the applicant and a sedan motor vehicle carrying five members of the one family. The collision occurred at an intersection on a country road. The intersection was controlled by a stop sign applicable to traffic approaching the intersection on the road on which the applicant was travelling. The applicant failed to give way at the intersection and four of the five occupants of the other vehicle suffered fatal injuries.
At the scene of the collision, the applicant gave contradictory accounts of what happened. Essentially, the applicant gave two versions. First, that he was slowing down as he approached the intersection but then his gears ‘got jammed.’ Secondly, that he stopped at the intersection, checked to see if it was clear, started crossing the intersection and then his gears got jammed. Significantly, both versions contained an acknowledgement by the applicant, either express or implied, that as he approached the intersection he was aware that he was obliged to stop or give way to other traffic.
At trial, and on appeal, it was not disputed that, in giving these versions, the applicant lied, although precisely what portions of his utterances were untruthful was never articulated.
On 5 November 2015, following a six-day trial in the County Court, the applicant was convicted of four charges of culpable driving causing death. On 6 November 2015, the applicant was sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of six and a half years.[1]
[1]DPP v Gill (Unreported, County Court of Victoria, Judge Chettle, 6 November 2015).
The applicant seeks leave to appeal against conviction. The applicant’s proposed ground of appeal is that the ‘judge erred in admitting the applicant’s lies at the scene of the collision’.
The intersection and the circumstances of the collision
The applicant was driving a Hino truck along Caldermeade Road, from Catani, towards the South Gippsland Highway. In order to get to the highway, the applicant had to pass through the intersection of Caldermeade Road and Heads Road. The speed limit on Caldermeade Road at the location of the collision was 100 kilometres per hour. The intersection of Caldermeade Road and Heads Road was controlled by a stop sign that faced traffic travelling along Caldermeade Road. Traffic on Heads Road had right of way at the intersection.
On the approach to the intersection from the direction in which the applicant was travelling, there was a cross-intersection advisory sign situated approximately 249 metres from the intersection. Approximately 156 metres prior to the intersection, there were stop sign advisory signs on each side of the road. There were then red coloured rumble strips on the road from about 80 metres to eight metres prior to the stop line at the intersection. Two stop signs were placed on either side of the intersection, five metres prior to the stop line at the intersection itself.
Notwithstanding the presence of these signs, the applicant drove into the intersection without stopping and without giving way to traffic travelling along Heads Road. The applicant drove into the path of a green Daewoo motor vehicle that was travelling along Heads Road. The Daewoo collided into the mid-section of the left-hand side of the applicant’s truck. The collision caused the truck to roll onto its side and onto the Daewoo. The applicant’s truck continued on its side, dragging the Daewoo with it, before coming to rest about 36 metres from the point of impact. As we have said, four of the five occupants of the Daewoo died as a result of the injuries they sustained in the collision.
Evidence was given by an eyewitness (Mr Kenneth McLeod) who observed the applicant’s vehicle as it travelled about 400 metres along Caldermeade Road prior to the collision. Mr McLeod’s evidence was that the truck did not slow down before driving into the intersection. At the scene, however, the applicant gave the different versions, to which we have referred, about his gears jamming. Specifically, the applicant told a number of people that the gears on his truck were at fault, asserting that they jammed, or were stuck. A police officer (Leading Senior Constable Andrew Jones) recorded a conversation at the scene in which the applicant said:
I stopped on the stop line, or at the stop sign. I looked left and right. I started to move forward, the car was way away from me at the time. My gear just got stuck and the truck stopped in the middle of the road.
Victoria Police Major Crash Investigation Unit members attended the scene. A reconstruction of the collision was undertaken, and the truck was mechanically analysed. Evidence was given at trial that the investigators found no evidence consistent with the applicant’s claims that either his gears had jammed or stuck, or that the truck had stopped in the middle of the intersection prior to the collision. The reconstruction exercise that was performed determined that the truck was travelling through the intersection at a minimum of 60 kilometres per hour at the time of impact, and that the momentum of the vehicles at the point of collision took them 35 metres before coming to rest down Caldermeade Road. The mechanical inspection of the truck revealed that there was no mechanical fault that would have caused or contributed to the collision.
Expert evidence was given by one of the members of the Major Collision Investigation Unit (Leading Senior Constable Robert Hay) about the signs leading up to the intersection and the intersection itself. In particular, Mr Hay agreed that:
(a)the cross-roads advisory sign some 249 metres from the intersection should not have been there, because such a sign should only be used on roads that have right of way;
(b)the ‘stop ahead’ warning sign some 156 metres from the intersection was 20 per cent smaller in size than it should have been and was some 24 metres closer to the intersection than appropriate;
(c)the rumble strips on Caldermeade Road were not sufficiently raised to act as rumble strips;
(d)the stop sign at the intersection was also 20 per cent smaller than it should have been; and
(e)the white stop line at the intersection was damaged by wear.
Additionally, there was evidence given at trial that the vegetation around Caldermeade Road, at least, partially obstructed and limited the view of Heads Road.
The trial
At the commencement of the trial, the prosecutor told the judge that an incriminating conduct notice had been filed[2] in relation to the lies said to have been told by the applicant at the scene of the collision. The prosecutor informed his Honour that, following discussion with defence counsel, the prosecution would not rely upon the lies as incriminating conduct within the meaning of the Jury Directions Act 2015. The prosecutor said that he proposed to lead the evidence of the applicant’s false statements as going only to the credit of the applicant. That was apparently the course that had been agreed upon. In response to an inquiry by the judge, defence counsel[3] told his Honour that he had no problem with that approach.
[2]See s 19 of the Jury Directions Act 2015.
[3]Not counsel who appeared for the applicant in this Court.
After the jury was empanelled, the prosecutor opened his case. In describing the facts of the case, the prosecutor referred to the various statements made by the applicant at the scene of the collision, the fact and conclusion of the accident reconstruction, and the results of the mechanical investigation of the truck.
In response to the prosecution opening, counsel for the applicant told the jury that the applicant conceded that he had failed to stop at the stop sign; that he had proceeded into the intersection at the speed that had been estimated (60 kph); that he had crossed the path of the vehicle in which the four deceased were travelling; and that he had provided the driver of the other car with no option other than to collide with the side of the applicant’s truck ‘with the consequences that followed’. The applicant’s counsel then said:
And you’d be thinking at this stage, well, what can the defence possibly be? How can it be that this person is saying there’re not guilty of gross negligence? And what I say to you is, wait until the evidence is presented because there’ll be evidence as to the engineering of that road which would have it that despite the signs that you’ve had pointed out to you, that the engineering of that road was grossly inadequate, that it did not provide proper warning, that there was no view available of the intersecting road to any driver passing down the road in the direction that the accused man was, and that the existence of the intersection was not able to be seen by a driver in his position on that road, and that the warning signs carried scant information ultimately.
…
So the argument will ultimately be that the driver of this motor car (scil, truck), just as with all motor cars driven on the roads, are somewhat at the mercy of the road authorities to provide a safe environment in which to operate motor vehicles. And we say that this was not one, and it has had terrible consequences.
So they are the issues that I say are the essence of the defence in this case. It’s a road engineering issue … .
The proposed defence rested upon the assumed fact that the applicant was not aware that he was approaching an intersection or that he was required to stop or give way at that intersection.
Following counsel’s opening statements, the prosecutor then proceeded to call evidence. Evidence was given by people who were present at and about the scene at the time of the collision and by various police witnesses in relation to the matters we have already described. At the conclusion of the Crown case, counsel for the applicant told the judge that he would not be calling his client. The judge, however, was required to rule on the admissibility of some evidence that the applicant’s counsel wished to call. The judge ruled against the admissibility of this evidence and, after discussion, the trial proceeded to final addresses. No complaint is now made about the judge’s ruling on the inadmissibility of the evidence the applicant sought to lead at trial. Additionally, no request was made at that stage[4] to exclude the evidence of the applicant’s statements made immediately following the collision.
[4]Or indeed at any stage during the trial.
Prior to final addresses, the judge raised the issue of the applicant’s lies and said that he should give a Zoneff[5] direction. The judge said:
That should be pretty simple. They might well think that he has told a number of lies. That does not mean he’s guilty, and they should — they could not convict him on the basis of those lies. That’s it, isn’t it?
[5]Zoneff v The Queen (2000) 200 CLR 234.
In response to this question from the judge, the following exchange occurred:
[PROSECUTOR]: That’s it.
HIS HONOUR: Yes. Yes. So this won’t take — I think I agree. It’s a very short — I have got the expert evidence matters. You have read what Justice Weinberg did … with the charge?
[PROSECUTOR]: Yes.
HIS HONOUR: I think it’s good. I don’t know what — have you got anything to say?
[APPLICANT’S COUNSEL]: No, I have got — not a problem with that. I was going to add character, which I raised.
HIS HONOUR: I was going to ask you about that. It’s not going [to] credibility, is it?
[APPLICANT’S COUNSEL]: No, not especially.
HIS HONOUR: And it’s irrelevant to the issue of whether or not he committed this crime. This is not a crime in the sense of, you know, he’s a bank robber or an armed robber, or whatever. And then it — this is about whether or not he was grossly negligent.
…
HIS HONOUR: Culpable driving is one of those situations where I — when you did it I thought well, where does a character charge fit in? It doesn’t — it’s not. You would usually say ‘Well, it goes to credibility.’ Well, not in this case because there’s nothing to assess his credibility on. He has told some fibs. He has not got a version about what happened at all.
[APPLICANT’S COUNSEL]: No, that’s right.
HIS HONOUR: So credibility is irrelevant. Going to the likelihood of him committing an offence relates to criminal conduct, not this. (Indistinct) irrelevant to the issue of whether he’s likely to be grossly negligent.
No doubt defence counsel was more than content to accept his Honour’s approach, but his Honour’s approach was unduly favourable to the defence. First, the applicant’s statements at the scene did constitute a ‘version’ of the events albeit that the defence conceded that in making those statements, he lied. Secondly, as we have already said, it was never made clear what facts contained within those statements were the admitted lies. Thirdly, the defence being advanced depended upon the jury inferring that the applicant did not know he was approaching an intersection that required him to stop or give way.
Following the discussion between the judge and counsel, to which we have referred, the prosecutor addressed the jury. In his final address, the prosecutor referred to the various statements that had been made by the applicant at the scene of the collision. The prosecutor described the statements as ‘lies’ and said:
None of those lies themselves prove that he was grossly negligent but what they do is that they prompt enquiries by detectives when looking at what caused this, and you can put all of those aside as being a cause of this collision. What is the cause of this collision is the gross negligence and inattention of this man.
Following the prosecutor’s address, counsel for the applicant addressed the jury. In the course of his final address, counsel for the applicant dealt with the issue of the applicant’s lies as follows:
As I say, the accused doesn't have to prove anything, and you will hear from his Honour that the accused is entitled to give evidence in his own trial, and that hasn't happened here, as you're fully aware. And you probably wonder why … . And I don't have to explain it, he doesn't have to explain it, but I just want to tell you a few things about it.
And that is, as has been focused on a few minutes ago by the prosecutor, at the scene on the day, back almost two years ago, he gave descriptions to a number of people, quite a few in fact, as to what had happened. And as has been highlighted to you by the prosecutor, some of them plainly can't be right, and almost all of them contradict another account given at a different time on the day to a different person. So there's contradictions and there's lies in there. And it may be that you consider them all to be lies. You'd certainly consider some of them to be.
So the decision's made by the defence to not call the accused. You might think that if he were to stand in the witness box and give evidence it'd be a close examination of what he said on the day — by the prosecutor, that is, in cross-examination. Going through in minute detail, not surprisingly, he'd be doing his job, all of those lies and contradictions that were given on the day. Wouldn't be a helpful process, you might think, for the accused.
In addition to which, at the end of the process I'd have a guess and say that the prosecutor would be saying to you ‘This man, you couldn't believe a word he says. He's told lies on the day’, he'd probably be saying he told lies in court, depending on how the evidence flowed. And I imagine you'd probably struggle yourselves to place much reliance upon what he said in court given what he said on the day.
So I say to you, well, why would we do that? We don't have to do it and we haven't done it for pragmatic reasons. The accused does not have to give evidence and no adverse inference can be taken against him for him having not done so. And I'm here to represent him and to advise him as to how this defence ought to be conducted, and decisions have been made and no adverse inference can be made against him because of that particular decision.
It was acknowledged by both parties during the course of the appeal that it was highly irregular of counsel, who appeared for the applicant at trial, to have informed the jury from the Bar table as to why the applicant had not given evidence. It should not have occurred. It is one thing to advance hypothetical reasons why an accused may not have given evidence, but it is another thing to have informed the jury of the reasons why the applicant was advised not to give evidence. This part of the applicant’s counsel’s address was also objectionable because it sought to convey an impression as to the content of the evidence the applicant would have given. It was said that, if the applicant had given evidence, cross-examination as to the applicant’s lies would have become necessary. As it was not in issue at trial that the applicant did not stop or slow down for the intersection, the need for cross-examination as to his statements at the scene could only have been necessary if he had given evidence that he was not aware that he was approaching the intersection and had not observed the stop sign. The submission to the jury invited the assumption that he would have given such evidence and would have had to be discredited by the use of his statements at the scene. Neither the prosecutor or the judge, however, raised any objection to defence counsel’s submission to the jury.
The addresses of counsel were made, and concluded, on Friday 30 October 2015. Four days later, on Wednesday 4 November, the judge charged the jury. In his charge to the jury, the judge dealt with the issue of the applicant’s lies as follows:
You heard evidence I think from three or four and I will go through it in a moment. But three or four witnesses who have had conversations with him, including a police officer who had a fairly detailed conversation with him. It seems you might well come to the conclusion that what he said in relation to — he said on one occasion that he stopped, that he looked, that his gearbox and his gears jammed, there were a number of explanations given which [counsel for the applicant] frankly conceded were untrue, and you might well come to the conclusion that the accused man did tell lies to some of the people he spoke to or did tell untruths.
What I direct you is you could not say, simply because he told lies, that he is guilty. People tell lies for all sorts of reasons and there may be any number of reasons why he might have told lies on that day and they do not mean that he is therefore guilty. He could have been, as you might imagine, frightened, in shock, any number of things could explain why he said what he said. But you cannot rely upon those lies in determining whether or not he is guilty, and I direct you that you determine this case on the other evidence in the case, that is, in relation to what he did and the way he did it and not rely upon the lies that he told at the scene.
Related to that you heard that he has — during the course of cross-examination of the informant you heard that the accused man has a number of traffic fines and history. He has been fined for — I think he was exceeding the speed limit by some extent, using a mobile phone, unregistered vehicle, there are a number of traffic matters he had.
I direct you that these traffic fines have no relevance at all when considering this particular offending. You should put them out of your mind and you certainly should not think just because he was a bad driver on other occasions, he is a bad driver on this occasion — it does not follow and it would be completely illogical. So I direct you to ignore his prior traffic charges completely in determining this case.
At the conclusion of the judge’s charge, counsel for the applicant raised an exception in respect of the judge’s summary of the evidence of Mr McLeod. The judge said that he would redirect on that issue. No other exception was taken by counsel for the applicant to the judge’s charge. The judge then gave the jury the redirection promised by him. A little over a day later, on 5 November, the jury returned its verdict of guilty in respect of the four culpable driving charges.
The applicant’s submissions
The applicant does not dispute that he told lies about the circumstances of the collision to various people who attended the scene. The applicant submitted, however, that the lies were irrelevant and that the admission of them into evidence caused a substantial miscarriage of justice.
In summary, the applicant contended that:
(1) The applicant’s lies were irrelevant once the applicant did not give evidence at trial. While the evidence of the lies was admitted on the basis that it was relevant to the credibility of the applicant,[6] once the applicant failed to give evidence, his credibility was not relevant.
[6]Cf s 55(2)(a) of the Evidence Act 2008.
(2) As the applicant’s lies were not relevant,[7] the evidence of them was ‘not admissible’.[8]
[7]See s 55 of the Evidence Act 2008.
[8]See s 56(2) of the Evidence Act 2008.
(3) New South Wales authorities[9] to the effect that the expression ‘not admissible’ in the Evidence Act generally means ‘not admissible over objection’ are wrong and should not be followed by this Court.
[9]See, eg, Seltsan Pty Ltd v McGuiness (2000) 49 NSWLR 262, 287 [149]; WC v The Queen [2015] NSWCCA 52 [20] and the authorities referred to therein.
(4) The direction given by the judge in his charge that the applicant’s lies could not be relied upon in determining the applicant’s guilt was insufficient to cure the prejudice suffered by the applicant from the admission of the evidence of those lies.
(5) The applicant should not be precluded from advancing his proposed ground of appeal in circumstances where his trial counsel failed to take any issue with the admission of the evidence.[10]
(6) The admission of the applicant’s lies caused a substantial miscarriage of justice because it was otherwise open to the jury to entertain a doubt as to whether the applicant’s conduct ‘met the very high threshold of gross negligence required for a culpable driving conviction’.
[10]In advancing this contention, the applicant relied upon passages in Velkoski v The Queen (2014) 45 VR 680, 728–729 [204]–[207] (‘Velkoski’).
The respondent’s submissions
In resisting the applicant’s application for leave to appeal and appeal, the respondent noted that no objection to the admission of the now impugned evidence was taken by the applicant’s trial counsel. The respondent submitted that, ordinarily, parties are bound by the conduct of their counsel.
Next, the respondent submitted that there was an advantage to the applicant in permitting the evidence to be given during the prosecution case at first instance, in the event that the applicant actually gave evidence at trial. It was contended that, in such a case, the preferable course so far as the applicant was concerned was for the Crown to lead the evidence of the applicant’s lies as part of its case in chief, rather than as part of a rebuttal case.
Finally, the respondent submitted that the prosecutor ‘correctly told the jury to put the [applicant’s lies] aside as they were not relevant to proving whether the applicant was grossly negligent’; and the judge ‘firmly and clearly directed the jury to disregard the statements made by the applicant at the scene’.
Analysis
The short answer to the applicant’s proposed ground of appeal is that the evidence of what he said at the scene of the collision was relevant, and therefore admissible, having regard to the defence he conducted at trial. Where an offender provides an immediate explanation following offending conduct, that explanation will ordinarily be highly probative. In order to determine whether or not the applicant was guilty of gross negligence, it was relevant to know what the applicant said about the circumstances of the collision at the scene. The applicant’s case at trial was that he was not grossly negligent because of ‘road engineering issues’ associated with the intersection and the road upon which he was travelling up to the point when he entered the intersection. Specifically, the applicant submitted the jury should not be satisfied beyond reasonable doubt that he was grossly negligent because of the inadequacy of the signage and other road features which were such that the applicant did not appreciate he was approaching an intersection at which he was required to stop. The applicant’s statements at the scene were obviously inconsistent with that hypothesis. They contained an acknowledgment that the applicant had observed the stop sign and knew he was required to stop.
In oral argument, counsel for the applicant submitted that the admission of the applicant’s statements, containing an assertion, that there was a stop sign facing the applicant at the intersection amounted to the admission of evidence of ‘incriminating conduct’ within the meaning of s 18 of the Jury Directions Act 2015. We reject that submission. The expression ‘incriminating conduct’ in s 18 of the Jury Directions Act is defined relevantly to mean ‘conduct that amounts to an implied admission by the accused … of having committed an offence charged or an element of an offence charged …’. The statements made by the applicant, at the scene of the collision, that conveyed the applicant’s observation of the stop sign do not constitute ‘incriminating conduct’ as that expression is defined in the Jury Directions Act. The mere statement that the applicant observed the stop sign could not amount to the admission by the applicant that he had committed the offences with which he had been charged, or an element of those offences.
While the applicant contended that the evidence of his statements was inadmissible pursuant to s 56(2) of the Evidence Act, in oral argument, he also relied upon s 137 of that Act. Section 137 of the Evidence Act, however, was not raised at trial. As a result, the trial judge was not called upon to deal with its operation in relation to the applicant’s statements.
It is sufficient for us to say that we see no basis upon which the admissible evidence of the applicant’s statements at the scene of the collision were required to be excluded under s 137. Specifically, in the context of this trial, we are unable to conclude that the probative value of the applicant’s statements was outweighed by the danger of unfair prejudice to the applicant.
There are additional reasons why the applicant’s proposed ground of appeal is without merit. First, the abandonment of the use of the lies as ‘incriminating conduct’ and their admission into evidence was a course that had been agreed upon. At no time did the applicant’s trial counsel take any objection to the prosecutor relying upon evidence of the applicant’s lies at the scene. While failure to take an objection at trial does not preclude the possibility of a point being made good on appeal, an examination of the transcript of the trial discloses that the failure by the applicant’s trial counsel to take an objection was an informed forensic decision made by him. As we have said, in his final address, the applicant’s counsel used the existence of the applicant’s lies as a reason for not calling his client to give evidence. While the wisdom of that decision made by the applicant’s trial counsel may be debated, it cannot be said that the decision served no forensic purpose or was such as to deprive the applicant of a chance of acquittal that was fairly open.[11]
[11]See TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614; Patel v The Queen (2012) 247 CLR 531; Nicholls v The Queen [2016] VSCA 250.
In any event, even if the applicant could make out his admissibility argument, and even if the applicant’s failure to object at trial could be overcome, it is to be remembered that, in charging the jury, the judge said:
[Y]ou cannot rely upon those lies in determining whether or not he is guilty, and I direct you that you determine this case on the other evidence in the case, that is, in relation to what he did and the way he did it and not rely upon the lies he told at the scene.[12]
[12]Emphasis added.
While the applicant’s trial counsel took an exception to another part of the judge’s charge, it is again to be remembered that no exception was taken to this part of the charge. Moreover, having regard to our conclusion about admissibility, this part of the charge was, if anything, unduly favourable to the applicant, if, as is likely, the jury treated this as a direction that they should disregard entirely the statements made at the scene of the collision. The acknowledgment by defence counsel, in closing, that the jury could conclude that the statements made at the scene contained some lies, did not identify what parts of them were to be so regarded. In the absence of evidence from the applicant, the jury were well entitled to act upon the applicant’s statements at the scene that he recognised he was approaching an intersection which was controlled by a stop sign. But as the prosecution had not relied upon such reasoning, and was content to contest the issue on the narrow question of the adequacy of the signage and other road features, it was not for the judge to draw attention to the fact that there was other evidence inconsistent with the defence hypothesis.
The applicant submitted that the language used by the trial judge in this section of his charge did not ‘preclude absolutely’ some impermissible use by the jury of the evidence of the lies told by the applicant at the scene of the collision. The applicant contended that the judge used stronger language to preclude the jury from using the evidence that had been given about previous traffic infringements committed by the applicant. Additionally, the applicant made complaint that, even though the judge told the jury that they could not reason from the applicant’s lies to a conclusion of guilt, the judge, when summarising the evidence of the various witnesses, summarised the lies said to have been told to those witnesses. It was submitted that, when the charge was looked at as a whole, the jury might have been left with an impression that there was a use (which would have been impermissible) which the jury might have made of the evidence of the applicant’s lies.
We reject this submission. On a fair reading of the whole of the charge, the jury was clearly told to determine the applicant’s guilt only by reference to ‘what he did and the way he did it’, and not to rely upon the lies told by the applicant at the scene. The jury had been told this by the judge in his charge and by both counsel in their final addresses. Plainly, counsel who were present at the trial, and who were imbued with the flavour and atmosphere of the trial, had no concern that the jury might use the evidence of the applicant’s lies at the scene of the collision in any impermissible way.
In the light of the conclusions set out above, it is not necessary for us to say anything about the correctness or otherwise of the New South Wales authorities that have held that the words ‘not admissible’ in the Evidence Act generally mean ‘not admissible over objection’. We would simply repeat what was said by this Court in Velkoski on that issue, and note that none of the New South Wales authorities countenance the reliance upon evidence that is not relevant to any fact in issue.[13]
[13]Velkoski (2014) 45 VR 680, 726–727 [198]–[200]. See further, Harrington-Smith v Western Australia [No 2] (2003) 130 FCR 424, 426 [13]; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 [103].
It follows that the applicant’s proposed ground of appeal must fail.
Conclusion
The application for leave to appeal must be refused.
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