Jones v State of NSW

[2001] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S179 of 2000

B e t w e e n -

STEPHANIE KAY JONES

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 2001, AT 10.20 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MR P.W. BATES.   (instructed by Thomson Rich O’Connor)

MR J.E. MACONACHIE, QC:   If your Honours please I appear with MR P.J. SAIDI for the respondent.  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

GLEESON CJ:   Yes, Mr Street.

MR STREET:   If your Honours please.  Your Honours, the primary ground upon which the applicant submits that this is an appropriate case for a grant of special leave is demonstrable of substantive injustice by reason of erroneous appellant interference with the findings of fact as to breach of duty of care.

The Court of Appeal embarked upon reversing findings of fact as to the failure to keep a proper close surveillance of the plaintiff, which findings of fact were made at 66 point 48 and 67 point 40, and the failure to conform to the police instructions and to provide a proper system to ensure that the respondent did not injure herself whilst in police custody, at 66 point 25, which were not even the subject of specific grounds of appeal.

The judgment of the Acting Judge of Appeal, Justice Brownie, reflects an approach of a hearing de novo rather than a rehearing in respect of specific grounds of appellate challenge.  Indeed, the judgment of Justice Brownie appears to be founded upon the discredited assertion of Sergeant McKellar that the respondent ran towards the window.  The observations in the judgment in relation to that proposition of running appear at 91 point 26, 92 point 1, 97 point 1, 124 and the same erroneous approach appears to have been adopted by Justice Einstein based on those facts at 106 point 45.

GLEESON CJ:   Well, your proposition is that this was a case of inappropriate appellant intervention with a finding of fact?

MR STREET:   Your Honour, and resulting in a serious miscarriage of justice.  That is our primary ground.  There are two further grounds we rely upon, ones which we would say are of general public importance.  One is in relation to the scope of the duty of care and we would say that the learned trial judge failed to articulate and apply the relevant scope of the duty of care but embarked simply on the proposition there is a duty and then looked towards determining breach.  The second ground of general importance was the Howard v Jarvis issue, which we have referred to.

GLEESON CJ:   Now, who was the police officer who was negligent, on your case?

MR STREET:   Your Honour, Sergeant McKellar.

GLEESON CJ:   And what did Sergeant McKellar do or fail to do?

MR STREET:   Sergeant McKellar, your Honour, was an officer who knew that the plaintiff had taken heroin, knew that the plaintiff was scared of going to Mulawa gaol, knew that the plaintiff was only just past being a minor and a vulnerable person, given her Aboriginality and was one who knew that there was an open window in this room in which the plaintiff was allowed to wander around without close supervision contrary to police standing instructions in relation to supervision and without shutting that window.  Sergeant McKellar’s evidence in relation ‑ ‑ ‑

GLEESON CJ:   So his negligence lay in not shutting the window?

MR STREET:   And failing to keep a proper supervision where he could intervene the plaintiff if she did attempt to jump out the window.  The plaintiff was allowed to wander around ‑ ‑ ‑

KIRBY J:   But I understand this was really a last-minute dash and then that your client ‑ ‑ ‑

MR STREET:   That is the false impression created by the finding that Mr Justice Brownie sought to make as to there being a running.  Such a proposition of running was expressly rejected.  The trial judge accepted ‑ ‑ ‑

GLEESON CJ:   How did she get out the window?

MR STREET:   Your Honour, she climbed out the window and fell – she has half slipped and fell.

KIRBY J:   And she had second thoughts, apparently, as she was ‑ ‑ ‑

MR STREET:   That is so.  Her thinking process was affected by – her cognitive functions were affected both by intoxication from heroin and a fear of incarceration and it is not one, in our respectful submission, where the fact of running that his Honour Mr Justice Brownie appears to have embraced was one which was accepted by the trial judge.  The trial judge preferred the evidence of the plaintiff to Sergeant McKellar.  Sergeant McKellar was a police officer who prepared notes and a diagram showing a straight line from a chair to the window and left out of his notes the observations relating to allowing the plaintiff to walk around the room, the fact that he knew that the plaintiff had taken heroin that he was allowing the plaintiff to smoke.

That sergeant’s evidence was expressly inconsistent with the evidence of another police officer, Smyth, which the trial judge preferred to the evidence of Sergeant McKellar in relation to this running.

GLEESON CJ:   But you are not suggesting she should have been handcuffed or something like that, are you?

MR STREET:   Not at all, but she should have been ‑ ‑ ‑

GLEESON CJ:   What should he have done?

MR STREET:   Well, your Honour, he should have either shut the window or kept her in sufficient close surveillance where he could intercept her from the window if she is being allowed to wander around the room.

KIRBY J:   Mr Street, can I put it quite bluntly:  though this is a tragic case on any view, the issue you are tendering to us is just a factual mistake in the Court of Appeal and we just would not normally take that up, unfortunately.

MR STREET:   Your Honour, we say this one is a case where a miscarriage of justice has occurred because the findings of fact that have been made by the Court of Appeal, first in relation to this question of running, was not even a subject of a ground of appeal, was inconsistent with the evidence of a trial judge that accepted the plaintiff’s evidence over Sergeant McKellar.

GLEESON CJ:   Just show us the inconsistency, if you would not mind, Mr Street?

MR STREET:   Your Honour, the observations relating to the finding of the running appear – if your Honours go to page 91, line 26.  Your Honours will see a reference in line 26 to “and then suddenly ran” down to 92, the first line, “ran towards the window”, 97, point 1, “until moments before she ran to the window.”  124 ‑ ‑ ‑

GLEESON CJ:   Now, what was her evidence as to how she got to the window?

MR STREET:   Your Honour, her evidence was that she was walking around the room looking at the photographs and that appears at page 41, point 15 and 41, point 5 in relation to the acceptance of her evidence.  If one goes to 41, point 1:

I do not accept McKellar’s evidence in respect of the diagram and find it inconsistent with his evidence, only elicited in cross examination, that Stephanie had walked to photographs on his right‑hand side and then commenced running to the window at Batman Lane.

And, at ‑ ‑ ‑

GLEESON CJ:   Just a moment.  McKellar’s evidence was that she ran, right?

MR STREET:   Yes, and the trial judge rejected his evidence in that regard.

GLEESON CJ:   Where do we find that rejecting?

KIRBY J:   It is that at the top of page 41, is it not?

GLEESON CJ:   I do not see that at the top of page 41.

MR STREET:   Well, your Honour, we say that when ‑ ‑ ‑

GLEESON CJ:   He says he does “not accept McKellar’s evidence in respect of the diagram”.

MR STREET:   And he says at the bottom of the page, at 41, point 20:

I do not accept McKellar’s evidence that a prisoner next to an open window was not placed at risk.

And over at – I think it is – if your Honours give me one moment I will just find the relevant passage where he says he accepted the evidence of the plaintiff in preference to that of McKellar.  At 67 ‑ ‑ ‑

GLEESON CJ:   Where is the evidence of the plaintiff?

MR STREET:   Yes, 67, line 20:

I accept and prefer her general version of what happened whilst she was in the premises to McKellar’s evidence –

So, at 67, point 20 is the preference of the plaintiff’s evidence to ‑ ‑ ‑

GLEESON CJ:   I am sorry, you still have not shown us the plaintiff’s evidence that she did not run.  McKellar says she runs.  You say the finding that she ran was erroneous.  I just want to read the evidence that she did not run.

MR STREET:   I understand that, your Honour.  If your Honour could look at line 25 – I was taking your Honour on page 67 to the finding of preferring the plaintiff’s evidence to that of McKellar’s:

and note that her evidence concerning her walking around and looking at the mug shots is corroborated by both Smyth –

Now ‑ ‑ ‑

GLEESON CJ:   How did she say she got to the window?

MR STREET:   Walking around the room looking at photographs.  Your Honour, that appears at – I think if one goes to page 17 at the top of the page at about line 5, “allowed her to smoke and to walk behind him to the back of the” room.

GLEESON CJ:   Well, she did not give evidence about how she got to the window.  She says:

The next thing she remembered was “hanging” outside the window.

MR STREET:   Your Honour, she did give evidence about it . She gave evidence, and it was put to her that she ran and that ‑ ‑ ‑

GLEESON CJ:   Have we got that evidence?

MR STREET:   Your Honour, that was in the transcript and I am happy to hand up to your Honours an extract from the transcript, if I may, in that regard?

GLEESON CJ:   Thank you.

MR STREET:   Can I hand up two extracts?  Can I take your Honours in that regard, first, to the walking around and looking at photographs.  Your Honours will see at page 30 at about line J asking whether or not she “was on heroin” and she said yes.  Then, down at the bottom of the page at line U on page 30:

“Can I look at the photos?”

Q.  Sorry?
A.  He let me look at the photos.

Then over on to page 32 she refers to the asking for “a smoke” and refers to “the open window”.  Then go over to page 33, at line N:

I was looking at the – at the photos, I was having  cigarette.  Went over to the window to blow it out and next minute I couldn’t see anything cause it was, you know, dark and next thing I was hanging outside of it, and just realised that I was doing.(not transcribable)..and slipped.

Q.  What was that Stephie, I missed that word?
A.  You know didn’t really realise what I was doing and then slipping.

Then, over the page in relation to the “singing out” Sergeant McKellar said that as she went through the window – he saw her going through the window he sung out her name.  The officer, Smyth, who was present said she never saw her.  The proposition that she was running to the window which was put ‑ ‑ ‑

GLEESON CJ:   If I may say so, I would have thought it would have been stronger for your case if she had been running towards the window.  If she walked in a reasonably unremarkable fashion, smoking a cigarette, up to an open window with the apparent intention of puffing some smoke out the window I cannot understand why a policeman would have intervened to restrain her at that stage.

MR STREET:   Well, your Honour, in that regard, both Police Officer Smyth said it was inappropriate for the plaintiff to be next to an open window and the trial judge accepted that evidence.  The trial judge expressly rejected the evidence by Sergeant McKellar that he thought there was no risk of the plaintiff being beside an open window.

KIRBY J:   Yes, but you have to build a case, do you not, that the plaintiff being with a heroin addiction – known heroin addiction – an Australian Aboriginal in an upstairs place with an open window, that the policeman in charge of her ought to have taken greater care to ensure that she was not ‑ ‑ ‑

MR STREET:   And that is what the trial judge found.  The trial judge, in a very detailed and careful judgment, went through and identified that the scope of the duty of care was one that he found at the bottom of the ‑ ‑ ‑

KIRBY J:   But it is hard if she is simply walking up and puffing a cigarette to impose on the policeman the duty to save her from getting out, if that happens, actually rather quickly, at that point.

MR STREET:   But that is the reason why the running proposition which erroneously was incorporated ‑ ‑ ‑

KIRBY J:   Well, leave aside the running.  Assume your case, it still is – it is a bit like Cekan v Haines, you know, you cannot expect custodians, unless you impose absolute gruelling manacles, to be in total control.  This policeman appeared, on the face of things, to have shown a degree of compassion to your client:  let her smoke, let her walk around freely, and so on, and then suddenly she is out the window.

MR STREET:   This is the policeman who prepared a false diagram in relation to her running towards the window – whose evidence was that she ran and was not accepted by the trial judge, whose evidence in that regard prepared notes that omitted material matters because he was concerned at disciplinary proceedings in relation to things like knowing that she had taken heroin, knowing that she was allowed to walk around, looking at photographs and smoking.  But, your Honours, can I move on ‑ ‑ ‑

GLEESON CJ:   Well, your case is that he should have been much more strict with her.

MR STREET:   No, your Honour, our case is very simple, the police officers were in the circumstances where they knew the plaintiff’s vulnerability and there was a finding of fact as to a reasonable foreseeability of risk, and in that regard the trial judge’s finding is one which should not have been interfered with and that a reasonable person in response to that risk would have closed the window or kept the plaintiff in reasonable proximity to intercept her.  Your Honours, can I just deal with that reference just in relation to the running?

Your Honours, I did refer very briefly to paragraph 81, if I may, in that transcript I handed up to your Honours, where the plaintiff encapsulated the concept of her duty into a nutshell where she said, “the police didn’t look after me” at page 81.  Go to page 88, your Honours, and one has what happened in terms of the jumping through the window, some further evidence in cross‑examination and what I would respectfully submit was not really thinking about that matter.  The same thing appears, your Honours over at page 89.

When your Honours go to page 94 at the bottom of the page the same thing in relation to climbing out of the window, and no intention to escape at the top of page 95.  The same thing at 141 in terms of no intention.  The fear of being bashed is referred to at 159.  At 163 one has the evidence ‑ ‑ ‑

GLEESON CJ:   I just have not understood.  She says she was not trying to escape.  What was her explanation as to why she went out the window?

MR STREET:   Your Honour, she had, in essence, no explanation in relation to what she was doing.  She was affected by heroin.  She did not have a thought in relation to that evidence that was established.  To the extent that the defendant sought to prove an intention, they failed to do so.  The trial judge in very careful reasons of about five pages found that no such intention to escape was established, that her cognitive functions were affected and that she was in a position where she had a fear.

Your Honours, just in relation to that running I just meant to take your Honours to her evidence which was preferred by the trial judge in the passage I took your Honour the Chief Justice to.  At page 163 and 164 one will see the proposition that she ran towards the window.  That is evidence that was the subject of denials that appear at 163 and 164 and notwithstanding that, as I have said, Justice Brownie embarked upon a role of finding that that was a fact that he should incorporate in his judgment.  In our respectful submission, it is one which is a material error of fact in relation to the reasoned approach by Justice Brownie.  Your Honours, can I turn to the next issue.

KIRBY J:   That may be so but you would still have to convince the court that the law would impose upon police in such circumstances the duty to prevent your client formulating this opinion and then getting out the window.  On any view, this would have happened very quickly.  On any view.

MR STREET:   Well, your Honour, I think the evidence was she had been wandering around the room for about 10 minutes, but the open window, in these circumstances, and ‑ ‑ ‑

KIRBY J:   All the more reason.  I mean, if she is just wandering around the room and not to expect that she is suddenly going to ‑ ‑ ‑

MR STREET:   But, your Honour, she was a person in respect of whom the trial judge found the police should have been aware of her vulnerability, in respect of her youth.  She was only just past being a minor.  Indeed, she was brought in in respect to an alleged offence when she was a minor.  She was two months past her 18th birthday.  Her Aboriginality, her heroin addiction, the fact that she had just taken heroin, and her fear, all of those known to the police.  Now, your Honours, the next matter we seek to identify, and the error of fact in relation to running was not even the subject of appellate challenge, there seems to be the same sort of approach where the Court of Appeal reject the finding of a fear of incarceration, when one looks at the judgement at 93 to 94, which again was the subject of a clear finding of fact by the trial judge, not the subject of appellate challenge.  Can I turn, then, to the scope of the duty, your Honours?  In relation to the nature and scope of the duty the trial judge found at page 63, point 50, at the bottom of the page, a specific duty of care to take reasonable care for the safety of the plaintiff while in custody.

Now, that duty, in terms of the scope of it, was not the subject of any analysis in determining, firstly, what the scope of it was before the judge embarked on a question of breach.  If one goes to page 89, point 30, in the judgment, and 100, point 30, the trial judge just seems to have referred to – there was a concession relating to duty and simply turns to look at breach – never gives consideration as to what is the scope and content of the duty of care, a matter we say was one of importance and indeed the trial judge expressly found that the policing standing instructions at 64, point 10 reflect ‑ ‑ ‑

KIRBY J:   Justice Einstein specifically refers to the distinction between the duty, the existence of the and its scope.

MR STREET:   But not the primary judge, Justice Brownie, in whose reasons Justice Giles agreed, but just if I can, in relation to that scope of the duty, the trial judge found at 64, point 10, that those instructions in relation to supervision reflected, in essence, the scope of the type of duty that was required and at 68, point 40 the trial judge referred to those instructions reflecting:

changed community standards by raising consciousness of the vulnerability of aboriginal and intoxicated persons –

and, we would say that includes heroin addicts. 

Now, in relation to that finding of the failure to address the scope of the duty of care, there was formulated by Justice Brownie at page 94, point 40, what was the response to the:

risk of injury from the fact that the respondent might attempt to escape –

in other words, he approached the matter as if what was in issue was a duty of attempt to escape.  That was not the duty focused upon at page 63.  It is not the duty pleaded.

KIRBY J:   There is no contest but that there is a duty owed, is there?

MR STREET:   Yes, but what happened was ‑ ‑ ‑

KIRBY J:   The question is the scope of it.

MR STREET:   And Justice Brownie embarked upon an erroneous formulation of it my reference to a duty to stop someone hurting themselves in the process of escape, and when one looks at his judgment at 99, point 15, 95, point 36, 96, point 55, 98, point 28, 98, point 40, the concept of a duty in relation to escape is what he focused on, not the duty pleaded which appears at page 3, point 40 of the application book, not the duty found by the trial judge at page 63, point 50.  Indeed the trial judge expressly directed attention to a duty of care of a reasonable police officer in relation to the open window and found at 68, point 5 that it gave rise, as a finding of fact, to:

a requirement to keep Stephanie in close physical proximity to the on duty officers and to close the windows.

They were steps that were not taken.  Your Honours, the remaining matter that I would just briefly touch upon was the application of ‑ ‑ ‑

KIRBY J:   The closed windows is hardly compatible with allowing your client the benefit that she asked to be able to smoke.

MR STREET:   Well, your Honours, in relation to the wide-open window, in our respectful submission, that was a clear, foreseeable risk that a reasonable police officer would have appreciated and indeed that is what Constable Smyth said when the question was put to her, should she have been allowed near that wide open window, and the answer was, “No” and the evidence of Sergeant McKellar in that regard was rejected.  The final ground, other than the matter referred to in relation to scope of duty, is the one relating to Howard v Jarvis.

We would respectfully submit that the trial judge did take into account, properly, the requirement not to have a standard of perfection.  That appears at page 68, point 45, but Justice Einstein’s judgment appears to have picked up a test based on Howard v Jarvis which we would say is inconsistent with Shirt v Wyong Council and that decision, if reviewed by this Court, is one which would not be followed.

To the extent that the Court of Appeal has suggested that Howard v Jarvis is an appropriate test, it is likely to be followed by inferior courts if this Court does not interfere with the decision.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Street.  We do not need to hear you, Mr Maconachie.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in the case and the application is dismissed with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED