Mitreski v The Queen

[2009] HCATrans 327

[2009] HCATrans 327

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S175 of 2009

B e t w e e n -

ZLATKO MITRESKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 2009, AT 12.35 PM

Copyright in the High Court of Australia

MR D.G. DALTON, SC:   If your Honour pleases, I appear with my learned friend, MR D.L. CARROLL.  (instructed by the Legal Aid Commission of New South Wales)

MS D.M.L. WOODBURNE, SC:   I appear for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Dalton.

MR DALTON:   Your Honours, the Crown in their submissions in respect to this application seek to cast this as a facts case.  In our submission, it is not a facts case.  This is an expert evidence case.  It is an expert evidence case that applies to the very serious matters of drive in a manner dangerous occasioning death.  It is a case that involves the proper analysis when a court of appeal comes to consider what is colloquially known as the unsafe and unsatisfactory appeal point in the context of a circumstantial case brought upon the basis of expert evidence and expert evidence only.

Now, your Honours, we have not, in the course of this application, pleaded directions of the like that was considered in Velevski.  What we submit in respect to this matter is this, that the directions that were at least considered – in the first instance the direction that was given in those proceedings and in the second instance the direction that was reserved for consideration at a future time by your Honour Justice Hayne and then in the judgment with the then Chief Justice, Justice Gleeson – were not directions that were sought at trial.

We say in relation to that that it does not have to be a case where directions are the pivotal consideration for the grant of special leave because in this case an analysis of the evidence that was available would demonstrate that the circumstantial case built upon the expert evidence was insufficient to substantiate the conviction in proper terms.  The directions that were considered in Velevski in that context were such that they should guide a proper consideration – in other words, the correct analysis and reasoning by which a jury in the first instance and the Court of Criminal Appeal in the second instance should have considered the unsafe and unsatisfactory point.

Neither the direction that was given in Velevski that your Honour Justice Hayne referred to in your judgment with then Chief Justice Gleeson – that direction was not given, and nor indeed was the further direction regarding the consideration of whether it would be dangerous to convict on the basis of expert evidence that was adverse to ‑ ‑ ‑

FRENCH CJ:   I am sorry, I must have missed something.  I am not quite clear why we are getting into the directions.  Your ground of appeal relates to the sufficiency of the evidential basis for the jury’s verdict.

MR DALTON:   Yes, it does, your Honour.  Your Honour, I am simply referring to the directions only in this context as they guide the proper approach of the Court of Criminal Appeal in its analysis of the case at trial in the context of the unsafe and unsatisfactory consideration.  Your Honours, in this case the expert evidence could not be reconciled, such that in the context of the onus of proof that applies in criminal cases that it was open or appropriate for the jury to convict and, in our submission, similarly for the Court of Criminal Appeal to have considered the evidence in the context of the care in which expert evidence of a circumstantial nature in a sense should be considered when dealing with matters of this kind.

Your Honours, what the Court of Criminal Appeal – her Honour Justice Latham, it would appear from her judgment has done has reasoned in the sense that there were matters other than the expert evidence upon which the innocent explanation of the accused to be rejected.  In our submission, that was not so.  The expert evidence guided in all matters the proper determination of this matter by an appropriate line of reasoning.

In our submission, her Honour has then gone on to consider things that the applicant had said at the time of the incident and thereafter in his record of interview to his detriment as such, separating out the overall context of what he had to say, which was his explanation of why he had travelled to the incorrect side of the road and ultimately off the road.  It should be remembered, your Honours, that the evidence is clear that he says that he adopted that course so as to avoid the oncoming vehicle, which was in the incorrect lane and coming ‑ ‑ ‑

FRENCH CJ:   He says he went to the wrong lane to avoid it, the oncoming vehicle went to that lane and then they hit.

MR DALTON:   Exactly, your Honour.  Your Honours, what is important to note in this type of case is that there are no witnesses, which is commonly the case in regards to cases of this nature.  There is only the expert evidence as brought by the Crown to try to counter the innocent explanation that is provided by the applicant.  The applicant says that he took that evasive action to avoid a collision.  Importantly, the evidence is clear, even from the Crown expert, Officer Bain, that the truck was off the road.  The truck was off the road at least 1¾ seconds before the car.  In other words, presumably one of these two drivers – if we take away the applicant’s account of what occurred – was taking evasive action from the other.

FRENCH CJ:   There was some expert evidence, was there not, in relation to the track taken by the Toyota that was said to be inconsistent with it having come off the wrong side of the road or back on to the right side of the road, which was your client’s account given to the police.

MR DALTON:   Thank you, your Honour, and that is a matter picked up by my learned friend in her submissions.  The Crown apparently concedes now that the question of speed by reference to both experts, that for the Crown and for the defence, would not have been determinative of the ability for the truck to go round ‑ ‑ ‑

FRENCH CJ:   It was not a question of speed, was it?  This was a question rather of what side of the road the Toyota was on before it was struck.

MR DALTON:   Your Honour, this underlines why significant care needs to be taken in consideration of cases of this kind, because speed is very much tied up with that consideration as well.  What the expert, Detective Bain, said in regards to the angle of the vehicle leaving the road was that a direct or immediate movement by the Lexcen Toyota could not have been taken to take it off the road consistent with the curvature of the furrows seen in the side of the road, and there were photos which the expert was taking in that regard.

What the expert also said is this, that would not be consistent with the car having been – and this is by observation at the scene and by the photographs is very clear – that the car could have been a little further down the road on the incorrect side of the road and still created those observations that are seen thereafter the event.  What the witness says thereafter is it is imperative to consider the distance between the two vehicles prior to the collision to be able to determine at what point that could have occurred.

The expert for the defence said exactly the same thing, your Honours, and that is this, that to be able to determine what could potentially have been observed with respect to the movement of that Lexcen as far as its movement from the incorrect side of the road was tied up intrinsically with an assessment of the speed of the two vehicles.  The speed of the Lexcen is unknown; the speed of the truck was postulated by both witnesses.  The reason for that, your Honours, is this.  It was necessary to determine the speed of the truck to be able to assess how far apart the two vehicles would have been at the time that it is suggested on the applicant’s account that he saw the Toyota Lexcen in the incorrect lane.  In other words ‑ ‑ ‑

HAYNE J:   Mr Dalton, in your application and your written argument you said the case presents substantial questions of law.

MR DALTON:   It does, your Honour.

HAYNE J:   What is the question of law, or what is one of those questions of law which this case is said to raise?

MR DALTON:   The correct approach of a court of appeal in analysing a ground of appeal that relates to unsafe and unsatisfactory in drive manner dangerous cases which relate to expert evidence only.  That is the point, your Honour.  It is a very significant point, indeed, your Honour, because this is a circumstance that comes up over and over again in cases where normally law‑abiding citizens who have no prior criminal offences whatsoever find themselves brought before the court for very serious charges indeed.  There are no other witnesses alive.  The Crown case relies upon expert evidence only, and circumstantially so, and the guidance needed from this Court, in our respectful submission, is the proper approach and the careful analysis and caution that should be adopted to expert evidence of that kind.

The directions that I referred to at the opening of my remarks, your Honours, were not sought.  Those directions – and this is a case which this Court could detail to the various courts of this country of what should take place as far as the careful analysis of expert evidence in this type of situation for the future.  It may avoid what occurs in cases of this kind where those who are convicted with otherwise unblemished records face very, very serious sentences of imprisonment.

Your Honours, at this stage there is no, we submit, appropriate guidance, first of all, as to the manner in which juries should go about their reasoning with respect to expert evidence of this kind and, secondly, how the Court of Criminal Appeal should apply themselves in considering whether it was properly open for a jury to convict.  In our submission, what has occurred in this case is that, in error, the court has not carefully applied itself to the consideration of the expert evidence, because the arc of the vehicle, the vehicle leaving lane one that your Honour the Chief Justice referred to, was intrinsically tied up with the consideration of the speed of the two vehicles.  It was not necessary to make any observations or, rather, for the experts to have been able to make any observations of your marks on the road if it happened a little further back, and that is exactly what Mr Jamieson said, and it is picked up in his Honour’s summing‑up, that if it happened approximately two seconds beforehand then one would not expect to see any markings on the road and it would not be inconsistent with the markings that were made off the road by the Toyota Lexcen.

Your Honours, that was also consistent with the timing exercises conducted by Detective Bain, that there would have been three seconds

before the accident – that is at a greater speed, opined by Officer Bain, of 71 kilometres per hour for the truck – the car, if the driver was alert, would have seen the truck in the middle of the road in front of it.  He would have had – on Detective Bain’s own evidence in respect to a truck, indeed, that pulling up normally as though pulling up to a light it would have only taken 100 metres.  That is just pulling up normally, not under emergency braking.

The evidence was given with respect to the truck driver, but it equally applied with respect to the driver of the car.  The evidence from Detective Bain was that the vehicle, the truck, would have been in front of the car three seconds before the point of collision and that would have been approximately 134 metres between the two vehicles at that time – 109 with respect to the truck, the point where the truck leaves the road and the point where the Toyota leaves the road, plus 25 metres between those two points.  So it takes it up into excess of 130 metres.

The evidence was, therefore, there was in the order of 2½ seconds from when the truck starts to leave the road for the observation to be made by the applicant that the vehicle on the incorrect side of the road starts to make its manoeuvre.  In other words, your Honours, it underlines why it was so necessary in the circumstances to treat the expert evidence with the utmost care, to analyse it and to treat it with the caution that it required, not only in relation to the question of the speed of the truck and it not being able to allegedly take the corner at first instance, but also with respect to the point that your Honour the Chief Justice pointed out regarding the angle of the Toyota leaving the road.  Both aspects were intrinsically tied up with this question of speed.

FRENCH CJ:   I think we have heard that point.

MR DALTON:   Thank you, your Honour.  Your Honours, they are the matters that I wished to raise in respect of the application.

FRENCH CJ:   Thank you.  We will not need to hear from the respondent.

In our opinion, the decision of the Court of Criminal Appeal dismissing the appeal against conviction was correct.  Special leave to appeal will be refused.

The Court will adjourn now until 2.15 pm.

AT 12.49 PM THE MATTER WAS CONCLUDED