Miller v Council of Shire of Livingstone

[2003] HCATrans 478

[2003] HCATrans 478

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 2003

B e t w e e n -

BENJAMIN KEITH MILLER

Applicant

and

COUNCIL OF THE SHIRE OF LIVINGSTONE

First Respondent

THE STATE OF QUEENSLAND

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 NOVEMBER 2003, AT 11.28 AM

Copyright in the High Court of Australia

__________________

MR R.J. DOUGLAS, SC:   Your Honour, I appear for the first respondent.  Counsel for the applicant is Mr Curran.  I have not seen him in the precincts of the Court this morning.  Mr Morton, of counsel, appears for the second respondent who is here at the Bar table.

GUMMOW J:   Yes, very well.  We are rather minded to dismiss both applications – well, to dismiss this application and to grant the first one.  Can someone locate where Mr Gibson is, please.  I know it gets rather torpid up there.  Counsel are meant to be in Court.  It is half‑past eleven, it was listed not before 11.00 Canberra time.

MR DOUGLAS:   Your Honour, Mr Gibson has been called outside the courtroom and does not appear to be in the precinct.

GUMMOW J:   Yes, very well.  Are Mr Douglas and Mr Hislop present in matter No 9?

MR DOUGLAS:   Your Honour, Mr Morton appears for the second respondent in this case of Miller.  The next case is Wills, and Mr Hislop is appearing, yes.

GUMMOW J:   Are Mr Douglas and Mr Hislop present in matter No 9?

MR DOUGLAS:   We are, your Honour.

MR HISLOP   Yes, your Honour.

GUMMOW J:   Very well.  We will take a short adjournment and then we will call that matter.

AT 11.30 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.22 PM:

GUMMOW J:   Yes, Mr Curran.

MR J.F. CURRAN:   Thank you, your Honours.  May it please the Court, I appear for the applicant.  (instructed by Robert Harris & Co)

MR R.J. DOUGLAS, SC:   May it please the Court, I appear for the first respondent.  (instructed by Barry & Nilsson)

MR R.C. MORTON:   May it please the Court, I appear for the second respondent.  (instructed by Crown Solicitor for the State of Queensland).

MR CURRAN:   I also must apologise at the outset for being late.  I was not informed of the daylight saving distinction.  May I commence?

GUMMOW J:   Yes, go ahead.

MR CURRAN:   Your Honour, the applicant’s case, shortly put, is that as he was proceeding home along a familiar footpath at night, with his brother, as was their habit, he came unexpectedly into contact with a very low fence which flipped him over, hurtling him head first into a concrete culvert below.  The applicant’s primary complaint is that he still has not received a fair trial, that is, given that it is a circumstantial case, there has still not been a judicial consideration of:

the weight which is to be given to the united force of all the circumstances put together.

That is an extract from Seltsam v McGuiness at paragraph 90 where the court adopted English authorities to the effect that the court weighs up the various items of “circumstantial evidence” and uses the analogy of rays of a light or strands in a cable.

GUMMOW J:   Where do you say there is error in the judgment of Justice McPherson at page 42?  His Honour seems to encapsulate the matter.

MR CURRAN:   Which paragraph, please, your Honour?

GUMMOW J:   In the whole judgment, there are only five paragraphs.

MR CURRAN:   Yes.  The complaint, your Honour, is that all his Honour and the other members of the Court of Appeal did was refer to what the learned trial judge had found, found that the alternative hypotheses, which the learned trial judge had considered, were of equal probability with the circumstantial case relied upon by the applicant and hence found that there was no appealable error.

The complaint, as I say, is that the trial judge – and in turn the Court of Appeal – considered some features of the circumstantial evidence, accepted that my client’s hypothesis might well be correct, but then referred to two other hypotheses which come readily to mind, and it is submitted, that the learned trial judge, and in turn the Court of Appeal, made a mistake in considering these alternative hypotheses, and in considering that they would even come readily to mind, rather than carrying out the duty, in my submission, of evaluating all of the circumstantial features that supported the case for the applicant.

The complaint involves a complaint that the primary judge became distracted when considering the circumstantial evidence by the two alternative scenarios, both of which are, at least in my submission, highly improbable, if not impossible, and one of which – and that is the urination scenario – involved a clear denial of natural justice to the applicant.

So it is submitted that the applicant has a relatively low threshold ‑ onus to discharge, as referred to by this Court in Stead v SGIC, that the denial of natural justice deprived my client of the possibility of a successful outcome, and in order to negate that possibility, it was necessary for the court to find that a properly conducted trial could not possibly have produced a different result.

Your Honour, in the short time available, I would like to draw your Honours’ attention to some of the photographic evidence – this is the primary evidence – and in so doing direct your Honour to some of the primary facts that were found and the inferences that may be drawn from them.

If your Honours go to appeal book page 3, you will see the relevant concrete footpath, the sailing club in the background, and the start of the actual fence in the foreground.  The person in that photograph is standing in line with where the applicant’s body was found on the concrete apron straight after the fall.

The evidence is imprecise but he crossed the road about halfway – sorry, he and his brother, Mark, crossed the road about halfway between the fence and the sailing club.  They were running, but by the time they had got to the blind spot they were walking, and the applicant was 20 metres in front of the witness, Mark Miller, who was his brother.

The actual fence is just – a different view of the fence is the photo below that on page 3, your Honours.  You can see the fence.  You can see it is offset there, the first post, that is about 340 millimetres from the concrete footpath, then it goes into about 70 millimetres and the next five posts are in a straight line because they follow the top of the head wall.  So the first post is offset as is the last one, but you can see from that that it is impossible to tell where the concrete footpath finishes, and where the fence starts.  In actual fact, there is a hole or depression of 100 to 150 millimetres in a gap between the edge of the concrete footpath and the fence, but you cannot see it.  It is totally disguised.

Now, the fall, your Honours, occurred less than one kilometre from the Marsden Tavern where the applicant and his brother commenced their run home.  So even allowing for a slow run, they could not have been gone more than five minutes, in my submission, before the fall.  Remember, the learned trial judge found that both the applicant and his brother were fairly fit.  He found also that the applicant had a good tolerance to alcohol.  He had not drunk a lot – not a lot for him – and another witness, Rhonda Miller, saw both the applicant and his brother, Mark, before they left the tavern, and formed a clear view that they were not drunk.  The learned trial judge, as was his province, made those findings, and it is my submission that those findings are not assailable.

Now, as they proceeded over the road and towards the fence, they passed a set of public toilets to their left as they completed the crossing of the road.  You can see from the top photograph of page 341, that there are no shortage of safer and more secluded alternative locations to urinate than the one which his Honour found to be realistic.

Now, given that Mark is 20 metres behind Ben, Mark sees the applicant Ben, 10 or 15 seconds before he hears the thud of the fall.  It follows that Mark is about 5 metres short of the blind spot or the corner that you can see in the top photograph of page 3 of the application book.  He hears the thud of the fall.  The fence, where the man is standing in the top photograph, is a little over 700 millimetres.  Remember the applicant is 6 foot 2, so the fence only comes a little above his knee and well below where his hands rest as he walks.

Can I take you now to the culvert.  You can see the start of it at the bottom of page 341, and I am asking your Honours to concentrate on the fall of the ground.  One can see, if one leaves that footpath, that the ground falls straight away, gradually at first but then very sharply.  If you go, your Honours, to page 343, the bottom photograph.  So if someone takes the choice of deliberately skirting around that fence, before he gets to the first post, he is already on unlevel ground falling away, and as he moves around - as his Honour found to be realistic - that first post, the ground falls away very, very sharply.

Can I ask your Honours to turn the page to page 6 of the application book.  You will see the fall there.  The top photograph, if you look, your Honours, at the top right‑hand corner of the right photograph, you can see the first post, then to the left you can see the second post – in fact, you can see second to five and you can see the seventh post.  So you can see they are all straight except the first and the last.

The uncontroverted evidence is that the applicant finished up 2¾ feet south – well, that is on the other side of that second post, second post in the top photograph.  He is 2¾ feet away from it, he is 2¾ feet away from the head wall, and he is head down on the concrete apron at right angles to the footpath.  That is how he finishes up with massive skull fracturing.  Now, remember, he has 10 or 15 seconds in which to do that, going from the point of the blind spot which is 15 metres odd away.

GUMMOW J:   Now, all these matters were no doubt put at the trial, were they not?

MR CURRAN:   They were.  They were in evidence before the trial judge, yes, and relied on by me.

GUMMOW J:   And the subject of submissions, surely?

MR CURRAN:   The submissions were, yes.

GUMMOW J:   Now, what is the denial of natural justice?

MR CURRAN:   His Honour was distracted by the urination scenario and failed to consider all of these features.  Your Honour, before I leave these photographs, can I make the submission that it is quite obvious that he could not get around that first post and towards the second without hanging onto the fence.  He would have to hang onto the fence and then climb in some way on the top of the head wall and then somehow turn around to finish up in right angles, the way that he was found.  That is why I make the submission that not only is it highly improbable for that scenario to have occurred, indeed, I make the submission that it is impossible.

May I now refer to the circumstances which were not given any weight by either the learned trial judge or the Court of Appeal.  Firstly, cars were passing infrequently at the time.  Therefore, Mark would have been able to hear other noises, for example, the sound of urination or the calling out.  He heard no such noise.  He only heard a dull, but loud thud of his brother falling.

Secondly, the brothers were repeating the same procedure they have done probably 10 or 20 times – this as Justice Helman so found – in the last couple of years.  So evidence of this habit of proceeding along the footpath on the way home is not only admissible, but on the facts of this case, and having regard to the way it was conducted, highly relevant.  From Joy v Phillips, which is a 1916 English decision referred to in my list, right up until the recent decision of Judge McGill in Morris v Warrian, referred to yesterday, the established line of cases establish that evidence of habit is admissible and relevant and, in my submission, it is to be given more weight in a situation where you have a circumstantial case, where no one knows precisely what happened, and that is why the earlier decisions have emphasised that evidence of habit and practice is relevant and admissible.

Other matters not referred to – the severe frontal and upper head injuries of the applicant.  Your Honours, he had two indents to his forehead, one just above the eyebrow.  He had injuries to the upper head.  His eye socket was crushed – the bones behind the eye socket were crushed.  It is quite apparent that the point of impact was the forehead, and given that he is 90 to 95 kilos in weight, and he is 1.88 metres tall, that clearly explains why he was found face down and did not somersault simply because the rotation effect of the fence flipping him over was obviously insufficient to flipping completely to a somersault point.

Now, there is one other matter that is clearly to be inferred from all of this, your Honours, and that is the plaintiff was taken completely by surprise when he had his fall.  If he was not, he would not have finished up with the massive head injuries.  He would have clearly taken some evasive action to protect himself.  There is no evidence of any injuries to his arms, his wrists, his hands or any other part of his body, so, in my submission, the Court would have to find that the circumstances of the injury gave rise to an inescapable conclusion that the applicant was taken totally by surprise.

Now, such surprise would be expected on the circumstances postulated by the applicant but would not be possible on the circumstances

postulated by the respondents or the trial judge, and given the concealed trap circumstances that I have already referred to with the change of the gap in the fence – sorry, the gap between the edge of the concrete footpath and the fence, it is my submission, the inference advanced by the applicant should clearly be drawn.

One other matter, your Honour – and this goes to the question of a matter of public importance – their Honours in the Court of Appeal have now set a precedent that the requirements of procedural fairness are met by permitting a party to raise a relevant issue for the first time in closing addresses, and thus throw an onus on the opponent to ask to stand the matter down or to adjourn, then to advise the client, then to take instructions and if appropriate, apply to reopen the evidence.

Your Honour, that is, in my submission, clearly wrong.  It requires a party to weigh up, or its counsel to weigh up, the weight or forcefulness of every submission that opposing counsel might make and try to second guess what is on the mind of the trial judge.  In my submission, that is far too difficult and should not be permitted.  Unless there are questions, your Honour, those are my submissions.

GUMMOW J:   Thank you.  We do not need to call on you Mr Douglas or Mr Morton.

There are insufficient prospects of success in demonstrating error by the Queensland Court of Appeal in the application of the relevant principles to warrant a grant of special leave.  Special leave is refused with costs. 

We will adjourn to reconstitute and we will then take application No 10.

AT 12.40 PM THE MATTER WAS CONCLUDED