Lawson v The State of Western Australia
[2008] WASCA 212
•20 OCTOBER 2008
LAWSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 212 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:143/2007 | 5 AUGUST 2008 | |
| Coram: | MARTIN CJ PULLIN JA MURRAY AJA | 20/10/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, conviction quashed and retrial directed | ||
| B | |||
| PDF Version |
| Parties: | KIM DOUGLAS LAWSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal Miscarriage of justice Admissibility of hearsay evidence Directions from trial judge Admissibility of outofcourt statements Verdict unreasonable or could not be supported on the evidence Criminal Appeals Act 2004 (WA), s 30 (3)(a) |
Legislation: | Criminal Appeals Act 2004 (WA), s 30 (3)(a) |
Case References: | Azarian v The State of Western Australia [2007] WASCA 249 Bannon v The Queen (1995) 185 CLR 1 Beamish v The Queen [2005] WASCA 62 Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 De Rosa v The State of Western Australia [2006] WASCA 57 M v The Queen (1994) 181 CLR 487 Martinez v The State of Western Australia [2007] WASCA 143 Ramey v The Queen (1994) 68 ALJR 917 Robinson v The Queen (1991) 180 CLR 531 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAWSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 212 CORAM : MARTIN CJ
- PULLIN JA
MURRAY AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 820 of 2006
Catchwords:
Criminal - Miscarriage of justice - Admissibility of hearsay evidence - Directions from trial judge - Admissibility of outofcourt statements - Verdict unreasonable or could not be supported on the evidence - Criminal Appeals Act 2004 (WA), s 30 (3)(a)
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Legislation:
Criminal Appeals Act 2004 (WA), s 30 (3)(a)
Result:
Appeal allowed, conviction quashed and retrial directed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Ms A N Blackburn
Respondent : Mr M Mischin
Solicitors:
Appellant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azarian v The State of Western Australia [2007] WASCA 249
Bannon v The Queen (1995) 185 CLR 1
Beamish v The Queen [2005] WASCA 62
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
De Rosa v The State of Western Australia [2006] WASCA 57
M v The Queen (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen (1991) 180 CLR 531
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- MARTIN CJ:
Summary
1 In this case the accused (appellant) gave evidence in his own defence. The trial judge directed the jury that in evaluating that evidence the jury should take into account the interest of the accused in the outcome of the case. That direction is contrary to established principle, and gave rise to a miscarriage of justice, with the result that the appeal must be allowed and the conviction quashed.
Introduction
2 The appellant (Mr Lawson) appeals from his conviction on one count of attempting to pervert the course of justice following a trial by judge and jury in the District Court. Initially, six grounds of appeal were relied upon. During the hearing of the appeal three additional grounds were added and one ground was abandoned, leaving a total of eight grounds.
3 It will be necessary to refer in greater detail to some of the evidence that was led at trial later in these reasons in order to deal with some of the specific grounds of appeal. However, the context for the appeal is sufficiently provided by the following brief outline of the case upon which the state relied.
4 On the evening of Friday 4 November 2005, Mr Lawson and Mr Cooling were drinking at the Royal George Hotel. They were not previously known to each other. Mr Cooling was in the company of two female friends. Mr Lawson joined the group in order to make up a doubles game of pool. They remained in a group throughout the evening, until the hotel closed. The group agreed to move to Mr Cooling's nearby flat for more drinks.
5 Mr Lawson and Mr Cooling travelled from the hotel to Mr Cooling's flat in a motor vehicle which had been driven to the hotel by Mr Lawson. Mr Cooling had not taken a motor vehicle to the hotel. Their female companions were given a lift to Mr Cooling's flat by another person.
6 At Mr Cooling's flat more alcohol was consumed. An order was placed for pizzas which were to be delivered to the flat. There was some delay in the delivery of the pizzas. It was decided that Mr Cooling and Mr Lawson would travel to the pizza shop in order to collect them. They left in the motor vehicle which Mr Lawson had driven to the hotel. While the vehicle was travelling down Canning Highway, it left the road, hit a fence and a parked car and came to rest in the front garden of a house.
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- The vehicle was extensively damaged. The state alleged that Mr Lawson was driving the vehicle at the time of the accident. The accident occurred a little after 1.00 am on Saturday, 5 November 2005.
7 Not surprisingly, the collision attracted the attention of a number of nearby residents, and some passers by. Evidence was given from some of those persons to the effect that they overheard a conversation between Mr Cooling and Mr Lawson. The state alleged that the conversation amounted to an agreement that Mr Cooling would say that he was the driver of the vehicle, even though Mr Lawson had been the driver at the time of the accident.
8 Both Mr Lawson and Mr Cooling attempted unsuccessfully to leave the scene of the accident. An ambulance arrived, followed by police. The police attempted to administer a preliminary breath test to Mr Lawson. He resisted and claimed that he had not been the driver of the vehicle. That led to an altercation which resulted in Mr Lawson being detained. However, because of his injuries he was taken by ambulance to Fremantle Hospital.
9 In the meantime, Mr Cooling was taken to Fremantle Police Station, where he was asked to provide a sample of his breath. Evidence was given that he initially responded to that request by saying, 'I don't know why you're bothering. I wasn't the driver' (ts 278). Evidence was given to the effect that the police responded by saying that they would test Lawson's breath as well, after which Mr Cooling replied, '[l]eave him alone. I was the driver' (ts 278).
10 The evidence established that Mr Cooling's blood alcohol level calculated to the time of the collision was 0.194%. Mr Lawson's blood alcohol level calculated to the time of the collision was 0.121% Mr Cooling was charged with driving under the influence of alcohol.
11 Evidence was led from a nurse at Fremantle Hospital, Nurse O'Neill, to the effect that after pressing Mr Lawson, he admitted to her that he was the driver of the vehicle. However, notes made by a doctor at Fremantle Hospital, Dr Maddox, which were tendered in evidence, recorded that Mr Lawson had told Dr Maddox that he was the passenger and not the driver of the vehicle.
12 Evidence was led of conversations between Mr Cooling and others, including the females who had been part of the group at the hotel on the night in question. Evidence was also given of conversations to the effect that following the accident, Mr Cooling appeared uncertain as to the
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- identity of the driver of the vehicle, but later, after experiencing pain in his left shoulder (consistent with impact from a seat belt applied in the manner it would have been if Mr Cooling had been sitting in the passenger's seat), concluded that he was the passenger and not the driver.
13 Mr Lawson is 10 cm taller than Mr Cooling. Evidence was given to the effect that when the motor vehicle was examined after the accident, the driver's seat was locked in a position which was more consistent with the height of Mr Lawson, and in a position which would be inconsistent with Mr Cooling's height. Evidence was also given to the effect that the DNA in blood spots found on the middle console in the front seat, and on the driver's seat was consistent with Mr Lawson's DNA and unlikely to be the DNA of another. However, the DNA in blood spots found on the driver's airbag was consistent with Mr Cooling's DNA and unlikely to be that of another. The precise circumstances in which the blood spots came to be in the locations in which they were found was a contested issue at trial.
14 Mr Lawson participated in a recorded interview with police, in which he denied that he was the driver of the vehicle. Some weeks after the accident the charge of driving under the influence of alcohol brought against Mr Cooling was withdrawn, and both Mr Lawson and Mr Cooling were charged with attempting to pervert the course of justice.
15 At trial, counsel for Mr Cooling suggested in opening that Mr Cooling was likely to give evidence, in the result he did not. Mr Lawson gave evidence in his own defence. By its verdict the jury acquitted Mr Cooling, but convicted Mr Lawson.
Ground 1
16 Ground 1 alleges that there was a miscarriage of justice because of a direction by the trial judge to the jury to the effect that they could take into account Mr Lawson's interest in the outcome of the proceedings when assessing his evidence.
17 The direction complained of was made just before the completion of the charge to the jury. It was made in the following terms:
Finally, when you come to consider the case, you need to consider the case against each accused separately. Decide the evidence [sic] on the evidence that you have heard including that of Mr Lawson. When you consider what Mr Lawson has to say, bear in mind that he has his own interests to serve and you assess his evidence in the same way as you assess any other witnesses evidence.
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- This is not a case of whether you prefer the state evidence or the defence evidence from Mr Lawson on the video or in his oral testimony. To approach the case that way would be the wrong approach. The issues for you to decide are whether on all the evidence received from witnesses or by way of exhibits, the state has satisfied you beyond reasonable doubt that each of the accused committed the offence specified in the indictment and this applies to both accused (ts 509).
18 Following the retirement of the jury, counsel for Mr Lawson, a respected practitioner with considerable experience in the criminal jurisdiction, when asked if there was anything arising from the charge to the jury replied:
O'BRIEN, MR: No, nothing that I would like your Honour to mention to the jury. There is just one thing if I may, your Honour, in relation to Mr Lawson where he was singled out for comment towards the end of the charge. I think this phrase was used in relation to him, 'Bear in mind he has his own interests to serve,' and I know your Honour didn't say that to put him into some sort of special category as a witness and I think the balance of the phrase probably made that clear.
I'm being a bit censorious I think, but I would suggest, if I may, that a comment which seeks to put an accused into a special category by saying he has his own interests to serve, which ultimately has been held to indicate that it is contrary to the burden of proof direction is perhaps a phrase that I would make some complaint about, but I think on the overall context of what has been said I wouldn't seek to have anything said of it here, and as I say, I'm being a bit censorious perhaps in relation to that.
GOETZE DCJ: Well, if I'm going to get them in, I might make some comment. But to draw attention to attention to the comment [sic] - - -
O'BRIEN, MR: Yes, I think that's the point, your Honour.
GOETZE DCJ: - - - that he has got his own interests to serve might - - -
O'BRIEN, MR: Emphasise the aspect.
GOETZE DCJ: - - - emphasise it. We might just say that the accused of course had nothing to prove.
O'BRIEN, MR: Yes, all right. Thank you, your Honour (ts 513 - 514).
19 The jury was brought back and given some other redirections. Apparently in response to the issue which had been raised with him, the trial judge included the following observation in those redirections:
The other matter that I would say of course is that an accused person in a trial never has anything to prove. It is up to the state to prove the case against the accused. The accused has a right of silence if he or she wishes and I have mentioned that to you earlier (ts 517).
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20 With respect to the trial judge, if his direction to the jury to the effect that they should take into account the interests of Mr Lawson when assessing his evidence had been a misdirection, a redirection in these terms did nothing to meaningfully address or cure the earlier misdirection.
21 Again with respect, it does not seem to me that there can be any doubt that the trial judge misdirected the jury in the earlier passage which I have set out. In Robinson v The Queen (1991) 180 CLR 531, the trial judge gave directions to the jury in the following terms:
Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, 'Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.' That is a matter you have to bear in mind when scrutinising a particular witness's evidence.
…
Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely.
22 In a joint judgment the High Court (Mason CJ, Brennan, Deane, Toohey & McHugh JJ) made the following observations in respect of those directions:
The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny (Reg v Hester[1973] AC 296, at
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- pp 324-325; Longren v The Queen (1989) 168 CLR 79, at pp 85, 104-105). An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person (535).
- The court went on to say:
But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.
It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinised more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence (536).
There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen … it is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case (917).
24 Since the principle was enunciated by the High Court in Robinson, it has of course been faithfully applied by this court. The cases on the subject, and the rationale for the principle itself, were recently reviewed by this court in De Rosa v The State of Western Australia [2006] WASCA 57. Roberts-Smith JA (with whom Buss JA agreed) extracted the following propositions from the authorities:
(1) Where an accused gives evidence, even a direction that a jury might take into account the interest of witnesses generally, in the
- outcome of the case, will infringe the principle, because the accused will always be seen as having the greatest interest in the outcome of the case.
- (2) The unfairness lies in the notion that the evidence of an accused may have to be given particular scrutiny because he or she is the accused. That approach undermines the presumption of innocence.
(3) The unfairness will be manifest where there is a conflict between the evidence of an accused and that of prosecution witnesses, and particularly so where the outcome turns on the jury's preference for the evidence of the complainant against that of the accused.
(4) The prohibition applies to a direction about the interest of a witness in the outcome of the trial; it does not preclude reference to any other interest or motive which a witness (including the accused) may have when giving evidence in the proceedings.
(5) The unfairness flowing from such a direction may not be overcome by otherwise impeccable directions on the onus and standard of proof.
(6) In an exceptional case, where the circumstances require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should be sufficient to direct the jury they must approach the case on the basis the accused is presumed innocent of the acts the subject of the charge and that it would be wrong and unfair for them to discount the accused's evidence, simply because he or she has a particular interest in the outcome of the trial.
(7) The principle is to be rigorously applied and not to be eroded by Courts of Appeal or trial Judges failing to faithfully apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the case [44].
25 In the face of a direction which plainly contravened the clear and consistent line of authority to which I have referred, in argument on appeal counsel for the state raised only two matters for the consideration of the court. The first was the suggestion that the vice of the direction may have been ameliorated because it was accompanied with the assertion that Mr Lawson's evidence was to be assessed in the same way as the evidence of any other witness, and followed immediately by a reminder of the standard and burden of proof.
26 However, it is clear from the authorities to which I have referred, including in particular De Rosa, that placing the accused in the same
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- category as all other witnesses does not ameliorate the vice of a direction which would lead a jury to particularly scrutinise the evidence of the accused because of his or her interest in the outcome of the case, because such an approach undermines the presumption of innocence.
27 The second consideration raised by counsel for the state was to draw the court's attention to the position adopted by experienced counsel appearing at trial on behalf of Mr Lawson. While it is true that counsel did not complain about the misdirection in vigorous or forceful terms, that may well be because of the view formed by counsel to the effect that a redirection on the subject, so soon after the jury had retired, would only have served to emphasise the point to the jury, to the possible detriment of Mr Lawson. Although there may be room to doubt the correctness of that view, it was a view reasonably open to experienced counsel and it would be wrong to deny Mr Lawson the consequences of a serious misdirection by the trial judge because of the terminology or general approach adopted by his counsel at the time. It is also of some significance that the point was raised by counsel immediately after the jury retired. It cannot therefore be suggested that it was a matter which was of so little consequence that it escaped the attention of all concerned.
28 In any event, because of the importance of the principle enunciated in Robinson, and the continuing need for rigid adherence to that principle, it is extremely difficult to conceive of a case in which the conduct of counsel could deprive a misdirection contrary to that principle of the character of a miscarriage of justice.
29 The state did not suggest that the proviso could have any application to a misdirection of this kind. That position is consistent with authority: see De Rosa [82] (McLure JA).
30 It follows that ground 1 must be upheld, the appeal allowed, and the conviction of the appellant quashed. Because only one of the other grounds (ground 5) goes to the question of whether or not there should be a re-trial, it is not necessary to deal at great length with the other grounds.
Ground 2
31 This ground asserts that the trial judge erred by failing to direct the jury that they were entitled to use evidence of statements made by Mr Cooling out of court to the effect that he was the driver of the vehicle to conclude that he was in fact the driver of the vehicle at the time of the accident.
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32 A substantial body of evidence was led, without objection as to statements made by Mr Cooling out of court. No doubt the lack of objection is attributable to the fact that this evidence was admissible in the case against Mr Cooling, who was of course jointly tried with Mr Lawson.
33 The fundamental difficulty with this ground is that, contrary to expectation, the trial judge did not give a general direction to the effect that Mr Cooling's out of court statements could not be used in the trial against Mr Lawson. The closest the trial judge came to such a direction was in the following observation:
[W]hat Mr Cooling said to the police at Fremantle police station about who was driving cannot be used against Mr Lawson (ts 507).
- Accordingly, on the directions given to the jury by the trial judge, there was no reason for them to suppose that statements made by Mr Cooling out of court to the effect that he was the driver of the vehicle could not be used to support the conclusion that he was in fact the driver of the vehicle, to the advantage of Mr Lawson. To the extent that there was any qualification on that approach, it was a qualification limited to what was said by Mr Cooling at Fremantle Police Station, and was limited to that being used against Mr Lawson; there was no direction to the effect that the jury were not at liberty to use Mr Cooling's out of court statements to the advantage of Mr Lawson.
34 In any event, on the evidence the statements made by Mr Cooling at Fremantle Police Station were entirely equivocal; or perhaps supported the conclusion that he did not know who the driver was, because of his intoxication. While the evidence suggested he initially denied that he was the driver of the vehicle at the time of the accident, he later admitted that he was. So, on the terms of the direction given to the jury by the trial judge, it would have been open to the jury to take account of Mr Cooling's admission to police that he was the driver, but not to take into account Mr Cooling's initial assertion that he was not the driver. If there was any misdirection by the trial judge it was a misdirection which favoured Mr Lawson.
35 This ground presumes that Mr Cooling's out of court statements were admissible in the case against Mr Lawson, to the extent that they supported that case. While it is unnecessary to rule on that proposition in the context of this case, it seems to me to be extremely doubtful. On the face of it, in the case against Mr Lawson, Mr Cooling's out of court statements are hearsay and inadmissible. In argument on appeal, counsel for the appellant relied upon the decisions in Bannon v The Queen (1995)
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- 185 CLR 1, Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 and Beamish v The Queen [2005] WASCA 62 for the proposition that there may be an exception to the rule against hearsay which extends to confessions out of court by persons other than the accused. It is sufficient for present purposes to say that I entertain severe reservations as to whether any such exception has been established by the authorities.
36 Ground 2 must be dismissed.
Ground 3
37 This ground asserts that the trial judge erred by failing to direct the jury that the statements made by Mr Cooling at the scene of the accident, to the effect that he was the driver of the vehicle at the time of the accident, could be used as evidence of the fact that he was in fact the driver of the vehicle. This ground must fail for the same reason that ground 2 fails. The evidence of Mr Cooling's statements at the scene of the accident to the effect that he was the driver of the vehicle were admitted without objection. Mr Cooling's statements at the scene were plainly admissible as part of the res gestae. No direction was given to the effect that the jury should have any hesitation in receiving and considering that evidence. In those circumstances, I am at a loss to understand how it might be concluded that there was an obligation upon the trial judge to specifically direct the jury that the evidence was admissible and could be used for a particular purpose.
38 Ground 3 must be dismissed
Ground 3A
39 Ground 3A asserts that the trial judge 'erred by failing to give the jury a direction as to the use they could make of hearsay evidence, in particular … [Nurse] O'Neill's evidence as to what she was told by the ambulance drivers'.
40 The ground is expressed in unusual terms. As the ground asserts, the evidence given by Nurse O'Neill as to what she was told by the ambulance drivers was plainly inadmissible hearsay. Accordingly, one would normally expect to see a ground referring to evidence of this kind directed to its erroneous admission, rather than a failure to give a direction to the jury in respect of its use.
41 The reason the ground is expressed in this rather curious way is because there was no objection to the reception of the evidence at trial. It
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- is clear from a review of the transcript of the trial that both sides were content for the trial to be run on the basis of the reception of substantial quantities of inadmissible hearsay. Presumably this was because each side saw (different) forensic advantages in that course. The volume of hearsay evidence received without objection makes it clear that this approach was a quite deliberate forensic strategy. Having adopted that strategy, it is not now open to Mr Lawson to complain that a direction should have been given in respect of evidence to which no objection was taken.
Ground 3B
42 This ground asserts that the trial judge erred by failing to direct the jury as to the use it was entitled to make of the opening remarks made by counsel for Mr Cooling to the effect that Mr Cooling could not recall who was the driver of the vehicle at the time of the accident.
43 The fundamental impediment in the path of the success of this ground is that during the course of his opening remarks to the jury, and just before the opening addresses of counsel, the trial judge clearly and unequivocally directed the jury that what was said by counsel was not evidence in the case, and that their determination had to be made only on the basis of evidence. There is no substance in this ground and it must be dismissed.
Ground 3C
44 This ground asserts that the trial judge erred by giving directions to the jury in respect of Mr Cooling's case by referring to propositions in support of that case which had not been the subject of evidence. In particular it is asserted that there was no evidence to sustain the direction given by the trial judge to the jury to the effect that Mr Cooling could not really remember who was driving and was confused on that topic.
45 On behalf of Mr Lawson it is submitted that there is no admissible evidence to support that assertion. It is suggested that the trial judge relied upon the opening address of counsel for Mr Cooling as the basis for the direction.
46 However, there was undoubtedly evidence of actions on the part of Mr Cooling, and statements made by him, which would provide a basis for the direction given by the trial judge. That evidence came from a number of witnesses including the witnesses Whitfield, Visser, Ball, Capazzalo, Jones, and the two police officers, Bernstein and Zampogna.
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- No objection was taken to that evidence at the time of trial, and in any event, the evidence to which I have generally referred was plainly admissible in the case against Mr Cooling.
47 It follows that ground 3C, to the effect that there was no evidence to sustain the direction given by the trial judge, must fail. I have however given consideration to the possibility that a different ground might have been enunciated, to the effect that the trial judge erred by failing to direct the jury that this evidence was only evidence which was admissible in the case against Mr Cooling. However, no argument has been directed to that issue on behalf of the appellant. That may well be because the contentious direction was made by the trial judge in a portion of his charge to the jury which was clearly directed to the defence mounted by Mr Cooling to the charge which had been brought against him. Accordingly, having reviewed the direction as a whole, I do not consider that there was any risk that the jury would have misunderstood the issue to which the direction was addressed - that is, Mr Cooling's defence of the charge against him. It is of course to be remembered that Mr Lawson's defence was quite different, and was supported by his direct evidence to the effect that he was not the driver. There therefore does not appear to me to be any prospect that the jury could have been under any misapprehension as to the differing nature of the two cases.
48 Ground 3C must be dismissed.
Ground 4
49 This ground was abandoned.
Ground 5
50 Ground 5 asserts that the jury's verdict convicting Mr Lawson of the count against him was unreasonable or could not be supported by the evidence. This ground of appeal is of course the statutory ground created by s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
51 The approach properly taken by the court when this ground is raised has recently been considered by this court in cases which include Martinez v The State of Western Australia [2007] WASCA 143 and Azarian v The State of Western Australia [2007] WASCA 249. It is therefore unnecessary to traverse the principles enunciated in those cases again. Put shortly, the court must make its own independent assessment of the evidence and then ask itself whether it would be dangerous in all the circumstances to allow the verdict of guilty to stand. When
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- undertaking that task, the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must give full regard to those considerations (M v The Queen (1994) 181 CLR 487, 493).
52 Counsel for Mr Lawson supported this ground with an extensive review of the evidence which had been relied upon at trial to support the proposition that Mr Cooling was the driver of the vehicle at the time of the accident. Reference was made to the nature of the injuries suffered by each of Mr Lawson and Mr Cooling, the fact that Mr Lawson was seen to have glass in his hair following the accident (viewed in the context of the evidence to the effect that the passengers window was shattered, and that the majority of the windscreen damage was in front of the passenger's seat rather than the driver's seat), that Mr Cooling did not suffer the same degree of lacerations as Mr Lawson, that Mr Lawson was seen to leave the car via the driver's door assisted by Mr Cooling, the location of the blood spots found in the vehicle, and the improbability of Mr Cooling agreeing to take responsibility for the accident in a circumstance in which he barely knew Mr Lawson.
53 I have reviewed the evidence on these subjects and concluded that there are significant aspects of that evidence which undoubtedly support the case advanced by Mr Lawson. However, there was a significant body of evidence to the contrary.
54 In relation to the injuries sustained by the occupants of the motor vehicle, the evidence as to the conclusions property drawn from the injuries of each of the occupants of vehicle, and the location of the broken glass, was somewhat equivocal. Plainly the vehicle was very substantially damaged, and each man was injured to some extent. The process of drawing conclusions from those injuries as to the positions of each of the occupants at the time of collision is necessarily a process attended with a significant degree of conjecture and speculation.
55 As to the evidence of the manner in which the men left the vehicle, notwithstanding the fact that the passenger's door was jammed shut, the evidence suggested that it would have been possible for Mr Cooling to exit the vehicle through the shattered window, walk around to the other side of the vehicle and assist Mr Lawson to leave the vehicle through the driver's door. The question of whether that in fact occurred was an open question, on the evidence as a whole. In relation to the evidence of the
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- blood spots, again it seems to me that that this evidence was, generally speaking, either equivocal or favoured the state, because there was evidence of Mr Lawson's blood on the driver's seat (which he explained as being left there when he crawled across from the passenger's seat to exit the vehicle through the driver's door). Equally the evidence which suggested that Mr Cooling's blood was on the driver's airbag could be explained by the fact that Mr Cooling was seen leaning into the driver's side of the vehicle to assist Mr Lawson to leave the vehicle.
56 Turning then to the evidence relied upon by the state, in relation to the injuries sustained by each of the men, there was evidence to the effect that Mr Cooling suffered an injury to his left shoulder, which is consistent with impact from a seat belt applied in the manner it would have been if he had been sitting in the passenger's seat. There was also evidence from residents and passers by of a conversation which was overhead immediately following the accident. On one view of that conversation, it provided significant evidence of an agreement to pervert the course of justice. The proper evaluation of that evidence, and the weight to be given to it, was plainly a jury question. Significantly, there was also evidence to the effect that Mr Lawson admitted to Nurse O'Neill that he was the driver of the vehicle. Again, the evaluation of that evidence and the weight to be given to it was of course, a matter for the jury. But if that evidence is accepted (and there appears no particular reason why it should be rejected), it provides a sufficient basis, of itself, for a finding that Mr Lawson was the driver of the vehicle.
57 Accordingly, having undertaken the task of making an independent assessment of the evidence, I have no hesitation in concluding that it was open to the jury to be satisfied beyond reasonable doubt that Mr Lawson was guilty of the offence, and harbour no concerns that it would be dangerous for a jury to convict on the basis of that evidence.
Ground 6
58 This ground simply asserts that in the event that none of the previous grounds in isolation amounted to a miscarriage of justice, then the grounds in combination amounted to a miscarriage. As I have concluded that the misdirection the subject of ground 1 gave rise to a miscarriage of justice, it is unnecessary to give further consideration to this ground.
The disposition of the case
59 I have concluded that the appeal should be allowed on the basis of the success of ground 1, and all other grounds dismissed. The only
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- ground which would have militated against a direction that there be a re-trial was ground 5, which asserted that the conviction was unsafe and unsatisfactory having regard to the evidence adduced. Because I have concluded that the evidence adduced could have sustained a verdict of guilty, it follows that the court should uphold the appeal, quash the conviction, and direct a re-trial.
60 PULLIN JA: I agree with the Chief Justice.
61 MURRAY AJA: I have had the advantage of reading in draft the reasons of Martin CJ. I agree with them and with the orders that the appeal should be allowed, the conviction quashed and a new trial ordered.
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