R v Winning

[2002] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P28 of 2002

B e t w e e n -

THE QUEEN

Applicant

and

DOUGLAS MARK WINNING

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 31 MAY 2002, AT 12.07 PM

Copyright in the High Court of Australia

MR K.M. TAVENER:   May it please the Court, I appear for the applicant.  (instructed by Director of Public Prosecutions for Western Australia)

MR T.J. PERCY, QC:   May it please the Court, I appear with my learned friend, MR N.J. MULLANY, appear for the respondent.  (instructed by Pearman Grantham)

GUMMOW J:   Yes.  I suppose the first question is the principles attending Crown appeals in this Court, or prosecution appeals in this Court, which are particularly difficult creatures to get airborne, I would have thought.

MR TAVENER:   Yes, I understand that, your Honours, but in this particular matter the Crown is saying that it is a question of fairness not only to the Crown but also to other co‑accused that appear in the particular situation as existed here, where one co‑accused had a criminal history and the other one had a very slight criminal history.  So, it raises the question of whether or not the trial judge has a discretion to exclude extremely prejudicial material ‑ ‑ ‑

GUMMOW J:    No, the real question is where the Court of Criminal Appeal went wrong.  Is there a particular passage in Justice Olsson’s judgment that shows error, error of a dimension that would found a Crown appeal here?

MR TAVENER:   We would say that at page 122 of the application book between ‑ ‑ ‑

GUMMOW J:   Paragraph 39?

MR TAVENER:   That is right, paragraph 38:

In dealing with the case advanced by Lowery, I take their Lordships to have seen the impugned evidence as being relevant and admissible on a very broad basis –

Now, the Crown would say that is where the matters have gone wrong.  In  Lowery the position was there were two co‑accused, Lowery and King.  Both men gave evidence and they were cross‑examined and subsequently a Professor Cox gave evidence.  Professor Cox gave evidence as to examinations he did on both men.

GUMMOW J:   This was in the Supreme Court of Victoria, was it not?

MR TAVENER:   It then went to appeal to the Privy Council.

GUMMOW J:   Yes.

MR TAVENER:   I will get to the point quickly, then.  The evidence then was categorised not as propensity evidence or bad character evidence, it was evidence that simply related to their intelligence and personality.  So, we have gone from the position where Lowery was authority for allowing evidence, such as it was, scientific evidence relating to personality and intelligence, through to now justifying a decision whereby a co‑accused can lead a criminal history against another co‑accused who has not given evidence.  So, it is part of an extreme, the Crown would say, interpretation of Lowery and, consequently, the discretion of a trial judge has been, in a sense, eliminated.

GUMMOW J:   That is why paragraph 39 is important.

MR TAVENER:   Yes.

GUMMOW J:   His Honour took the point you are putting to us.

MR TAVENER:   But the Crown would say in this matter, the matter of Winning, one, Mr Winning did not give evidence, two, the evidence being sought to be tendered against him ‑ ‑ ‑

GUMMOW J:   That is what his Honour is saying at paragraph 39.  That is why I am inviting your attention to it.  His Honour knew the point.

MR TAVENER:   The Crown would say that his Honour has misapplied the decision of Lowery.  Lowery is not authority for the position that a co‑accused who chooses not to give evidence in order to protect himself – and this was mentioned in the earlier case of Miller, the English decision in Miller – a person who does not elect to give evidence, the Crown would say that the other co‑accused cannot then tender evidence against him of such a prejudicial nature, bearing in mind, not only has the person relied on his right to silence, he then cannot even be cross‑examined as to the nature of the criminal history.

When one looks at the criminal history in this particular matter, the Crown would say that it is not even relevant, so Lowery cannot be authority for what was put forward in the decision proposed in Winning.  The criminal history which is outlined ‑ ‑ ‑

GUMMOW J:   Now, Lowery does not purport really to be an authoritative exposition in this area, does it?  It was more or less en passant that Lord Morris made these remarks.  I know it is often referred to.

MR TAVENER:   Certainly there is now a range of decisions.

GUMMOW J:   Yes.

MR TAVENER:   It certainly seems to be the basis.  Courts tend to either start with Miller or Lowery and certainly there is now a range of cases, Bracewell, Neale, English decisions, as to where the actual – it is a spectrum, the Crown would say, a spectrum across which a number of interpretations can be applied under which a co‑accused can tender evidence.  However, the Crown’s objection and what we are seeking in this case is clarification as to the discretion of the trial judge.

If the discretion is contained in paragraph 38, it being a very broad basis, then, in effect, a co‑accused is then allowed to adduce any prejudicial evidence.  What the Crown is seeking in this decision is that there be a discretion acknowledged and that discretion be one of strict relevance.  In this particular case, the criminal history of the co‑accused was not strictly relevant.  It did involve some minor assaults and some crimes of dishonesty.  All those matters were dealt with by way of fines.  They were quite old, in most cases.  I understand the last one was in 1995.  The most significant assaults occurred in 1985 when the co‑accused was in his early 20s, he being born in 1962, or thereabouts.

The Crown would say that this is an important issue as to, firstly, what a co‑accused, who has a criminal history, can do to defend himself from the actions of another co‑accused.  In this case, simply not giving evidence appears not to be sufficient.  Secondly, if this decision is correct, then it has the impact then of making applications for separate trials more readily approved.  If any co‑accused who has no criminal history can simply raise another co‑accused’s criminal history, regardless of the actions of the other co‑accused, clearly a separation of trial application is more likely to be successful and in this case, as is what happened, a retrial has been ordered.

On the retrial we had the situation where – if I can go briefly through the facts.  We have a trial where the initial trial involved three persons, two men and a woman, Avis and Winning and Mrs Harris.  They met for a very short time and left the hotel.  They went to her house where her defacto was asleep, affected by alcohol.  He had previously been ejected from a hotel.

GUMMOW J:   Yes, we have read the rather sordid facts.

MR TAVENER:   But that simply highlights the commonality of evidence.

GUMMOW J:   Yes.

MR TAVENER:   If we now have a separate trial, as has been ordered, we hive off – the evidence is, in effect, identical other than the video record of interview of Mr Avis.  The other evidence is identical.  We then have Mr Winning being in a position to simply tender the criminal history of Mr Avis.  So the jury are not in a position, the Crown would say, to come to a fair appreciation of what happened on that evening because all they will have before them is one co‑accused and him saying, “The other man did it”, and then the other man’s record of interview is tendered.

The record of interview is tendered without qualification, without any explanation.  It simply says this man has committed an offence of assault before and dishonesty.  The Crown would say the committing of assaults 10 years ago, or five years ago, some dishonesty and some other trivial offences, does not assist the jury deciding which of these two men committed the offence.  So the Crown would say, again, it is a question of what is the extent of the discretion.  That is the twofold consequence of this decision, one, the reduction – the elimination of the trial judge’s discretion to exclude evidence.

KIRBY J:   The real question from the point of view of this Court I think is whether or not these facts were so special and Lowery so general that you are not really laying down any general principle that is going to affect the conduct of joint trials.  If I thought that was a possibility, then that would, I think, attract special leave, but the issue is whether this is such a particular set of circumstances that it really turns on its own facts.

MR TAVENER:   The Crown would say it is not in that it is not unusual for one co‑accused to have more of a criminal history than another.

KIRBY J:   Or for one to have none and others to have some.

MR TAVENER:   That is right, in this instance.

KIRBY J:   The Crown loves to have joint trials for honourable reasons because it means that it can allow a jury to differentiate and show discrimination and for what one might say are not entirely honourable reasons, that it throws them all in together and that they can then all fall upon each other and the Crown can take advantage of that.  So, you like joint trials – and joint trials are efficient from the point of view of the community – but I would be concerned if this were to become a precedent and not, as it were, confined to its own special circumstances.  So that is the point you should focus on.

MR TAVENER:   The Crown would say, firstly, it is a matter of fairness both to the Crown and to the co‑accused that if one’s defence is, “The other person did it” – and there is nothing unusual about that sort of defence – the jury should have the opportunity of seeing everyone present who is raising that defence.

KIRBY J:   And that is more likely to happen in a joint trial than separate trials and in separate trials a person may walk away though he might be the guilty person.

MR TAVENER:   Exactly.  If this decision is applied to this particular matter – and I move on, generally, as your Honour has mentioned – if it is applied to this particular matter, we could end up with three separate trials of persons of whom the evidence against them is almost identical, and certainly equal.  As to the objective evidence, or at least the evidence of witnesses and forensic material, it is equally against all of them, other than their records of interview.

KIRBY J:   What do you say is the error of law?  Justice Olsson was a very experienced judge.  What do you say was the error of law that he made here?  Formulate it.

MR TAVENER:   We say that by saying, as he did, that the test is to be applied – again I am referring back to paragraph 38 at 122 – the test is on a very broad basis.  That means it inhibits the discretion of the trial judge, not just on these facts but on any circumstance in which one co‑accused wishes to tender the record of interview of another co‑accused because ‑ ‑ ‑

KIRBY J:   But how could you lay down any more precise rule?  You could, I suppose, for policy reasons say in joint trials a judge shall not admit the record of the co‑accused, but that could be very unfair to a co‑accused.

MR TAVENER:   We would not be asking for that formulation.

KIRBY J:   What is there in between?  Do you not just have to leave it to the discretion of the trial judge?

MR TAVENER:   We would say if a trial judge’s only guidance is the decision contained in Winning, where it is a very broad basis, that that is not helpful and that will lead to the situation, as I have outlined in Winning, where possibly we could end up with three ‑ ‑ ‑

KIRBY J:   What is your refinement?  What is your refinement which is governing in this case?

MR TAVENER:   We would ask that it be strictly relevant.  We would ask that the evidence that is sought to be tendered by the co‑accused be strictly relevant.

KIRBY J:   But no evidence is admissible in any trial anywhere in this nation unless it is relevant.  What does the adjective “strictly” do?

MR TAVENER:   Does “strictly” add to it?  The Crown would say that in this particular matter, for instance, we have the co‑accused’s criminal history.  The criminal history involves some minor assaults.  The Crown would say ‑ ‑ ‑

KIRBY J:   So you are attacking the exercise of the discretion of the trial judge but you are saying that somehow that would have been different if only he had had that word “strictly” rumbling around in his head.  It seems unlikely.

MR TAVENER:   The trial judge refused to allow the criminal history to be admitted.

KIRBY J:   Yes.

MR TAVENER:   The trial judge, the Crown would say, correctly refused the admission of the ‑ ‑ ‑

KIRBY J:   But the trial judge, you say, did not err in the exercise of his discretion and the Full Court – the Court of Criminal Appeal should not have disturbed that exercise because quite apart from the issue of general principle involved in leaving trial judges to decide this, hovering behind it was an issue of quite important practicality that if these records are to be easily admitted then they will undo joint trials.

MR TAVENER:   That is correct.  The trial judge correctly identified the issues.  He correctly decided that on the two matters outlined that it was not an appropriate case for the admission of the records of interview.  Their Honours in the Court of Criminal Appeal, however, the Crown would say, lowered the standard of admission of this type of evidence and, again, bearing in mind the other ‑ ‑ ‑

GUMMOW J:   They were upset by his Honour’s consideration of relative prejudice, were they not?

MR TAVENER:   That was one of the issues, yes.

GUMMOW J:   Yes.

MR TAVENER:   Well, that is certainly an issue to take into account, bearing in mind what the jury would have seen in the trial, had the criminal history been admitted, was simply an outline of a man’s criminal history involving minor assaults, with no explanation ‑ ‑ ‑

KIRBY J:   I just do not see what this Court could say that could, as it were, lift the standard.  You say it is discretionary and it has to be discretionary and there is an issue of relevance, which is a very discretionary question sometimes.

MR TAVENER:   Yes, that is right.

KIRBY J:   So what could this Court say that would add any great light on this issue?

MR TAVENER:   The Crown’s concern is that ‑ ‑ ‑

KIRBY J:   We understand the concern, but what could we do to properly ameliorate your concern?

MR TAVENER:   The decision, as it stands, suggests that when a trial judge is confronted with a situation such as this that the evidence should be looked at and considered as being admissible on a very broad basis.  The Crown would ask that the guidance of the Court be that the evidence only be admitted on a strictly relevant basis, that is, simply keeping the standard high to enable a trial judge to assess whether or not the particular evidence sought to be admitted by one co‑accused against another is strictly relevant in the defence of that co‑accused.  The decision of Winning does not do that.  It suggests, as over time, a lowering of the standard which must be achieved by a co‑accused in leading evidence against another co‑accused.

KIRBY J:   Yes.

MR TAVENER:   It is simply, the Crown would say, it is too low and the Crown would ask that guidance be given to courts to raise the standard.  This case is an example of that, where trivial criminal history, trivial criminal offences can be used against a co‑accused.

GUMMOW J:   Yes, Mr Tavener, thank you.  Have you finished?

KIRBY J:   Have you said everything that you ‑ ‑ ‑

GUMMOW J:   Have you said everything you want to say?

KIRBY J:   Because you have said it very vigorously and persuasively.  I can see the problem.  It is a question of whether we could throw any light on the problem, that is the question, or whether this is just a special case.

MR TAVENER:   The Crown would say, just in answer to your Honour, that it is not a special case and it would apply to any ‑ ‑ ‑

KIRBY J:   We know what you say.

MR TAVENER:   Thank you.  No, I would not want to repeat myself.

KIRBY J:   That word “strictly” does not, I think – would not really help and would not really be principled.  It has to be a discretion in each case.

GUMMOW J:   Yes, thank you, Mr Tavener.  We do not need to call on you, Mr Percy.

Having regard to the considerations that govern prosecution appeals in criminal cases and, in particular, such appeals to this Court, we are not convinced that, in the somewhat particular special circumstances of this case, an appeal to this Court would enjoy sufficient prospects of success.  As we read the reasons of the Court of Criminal Appeal delivered by Justice Olsson, those reasons were confined to the exercise of the discretion in this trial and were not apt to propound some general proposition.  Accordingly, special leave is refused.

We will adjourn to reconstitute.

AT 12.27 PM THE MATTER WAS CONCLUDED