R v Winning

Case [2021] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

R v Winning [2021] QCA 241

PARTIES:

R
v
WINNING, Douglas John
(appellant)

FILE NO/S:

CA No 242 of 2020
DC No 206 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 7 October 2020 (Chowdhury DCJ)

DELIVERED ON:

12 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2021

JUDGES:

Morrison and Mullins JJA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was pulled over by police after driving erratically while intoxicated – where the appellant asked “Can’t pay my way out this, can I?” and held cash money out of his car window in the direction of the police officers – where the appellant engaged in an interview with media stating that he did not intend to corrupt the police officers – where the media interview became an exhibit at trial – where the appellant was convicted of official corruption – whether the learned trial judge failed to give a direction as to the use of alleged lies made by the appellant in a media interview – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was pulled over by police after driving erratically while intoxicated – where the appellant’s interactions with police were video recorded by police bodycam and were exhibits at trial – where a subsequent media interview with the appellant was recorded and became an exhibit at trial – whether the verdict was unreasonable or could not be supported by the evidence

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, applied
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v Miller [2021] QCA 126, applied
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, considered

COUNSEL:

M Horvath and S F Lamb for the appellant
M A Green for the respondent

SOLICITORS:

Michael Cooper Lawyer for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  At about 1.00 am on Sunday 17 February 2019, police were patrolling in Rockhampton when they saw a car driving erratically and knocking over a street sign.  They pulled the car over.

  2. The driver was the appellant, Mr Winning.  What transpired was recorded on the officer’s body-worn cameras and played at the trial.[1]

    [1]Exhibits 2 and 3.

  3. Mr Winning was wearing only…

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AGLC
R v Winning [2021] QCA 241
Case
[2021] QCA 241
Decision Date

CaseChat Overview and Summary

The case of R v Winning involved an appeal against conviction by the appellant, who was found guilty of official corruption. The appellant was pulled over by police while driving erratically and under the influence of alcohol. During the interaction with police, he made inappropriate comments and offered money to the officers, which led to his arrest and subsequent conviction. The appellant argued on appeal that the trial judge failed to give a proper direction regarding the use of his alleged lies made in a media interview, which was admitted as evidence at the trial. Additionally, he contended that the verdict was unreasonable or could not be supported by the evidence presented.

The legal issues before the court were whether the absence of a proper direction regarding the use of the appellant's alleged lies in the media interview amounted to a miscarriage of justice, and whether the verdict was unreasonable or could not be supported by the evidence. The court considered the evidence from the police officers, the video evidence, and the appellant's media interview. It was noted that the appellant's inappropriate comments and actions during his interaction with police, as well as his subsequent media interview, provided sufficient evidence for the jury to conclude that the appellant intended to corrupt the police officers. The court found that the absence of a proper direction regarding the use of the appellant's alleged lies in the media interview did not result in a miscarriage of justice, as the evidence was sufficient to support the verdict.

The court dismissed the appeal, holding that the grounds of appeal had not succeeded. The judges agreed that the evidence presented at trial, including the video footage of the appellant's interaction with police and his media interview, was sufficient to support the verdict of official corruption. The court concluded that the appellant's inappropriate comments and actions, as well as his subsequent media interview, provided a foundation for the jury to conclude that the appellant intended to corrupt the police officers. The appeal was dismissed, and the original conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances I do not consider that the absence of a Liberato direction, modified or otherwise, resulted in a miscarriage of justice.Conclusion The grounds of appeal have not succeeded. I propose the following order:1.Appeal dismissed. MULLINS JA: Like Morrison JA, I acceded to the request of both parties to view the video that comprised exhibits 2, 3 and 4 which were relatively short and constituted all the evidence relevant to the question of intent. I agree that the appeal must be dismissed for the reasons given by Morrison JA. BODDICE J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

An exchange then occurred between Senior Constable Parkin, Constable Davies and Mr Winning:Parkin:Ah, Doug, Doug, Doug, Doug, come on. No. Ah, do you wanna put--Winning:You don’t have to call me--Parkin:Do you wanna put your cash in the car or do you wanna leave it on your possession?Winning:I’ll leave it on my possession.Parkin:Ok. Alright.Winning:You wa-, you wanna lazy quid?Parkin:No, no, no.Winning:Give you a lazy quid-Davies:No, no, no.Parkin:No, no, no. No, not at all. Come on, Mr Winning, we’ll get you in the back of the car. Come on, sir, this way.”Consideration The evidence from the police officers and the video evidence in Exhibits 2 and 3 would have provided a foundation for the jury to conclude that Mr Winning was quite intoxicated at the time he was intercepted by police, quite apart from the fact that he blew 0.191 in the roadside breath test, and subsequently 0.146 on the police station breath analysis instrument. That may have been why he made a number of inappropriate statements, and acted inappropriately, in the course of his interaction with police; for example:(a)saying to the female police officer (Constable Davies) soon after being intercepted, “you look beautiful … darlin’”;(b)when he was out of the car and saying, “call me Doug”, he put his right arm around Senior Constable Parkin’s shoulders; Senior Constable Parkin objected;(c)referring to Constable Davies as “that beautiful young lady”;(d)referring to Constable Davies as the “sheila in the front”, and “She’s fucking very tidy, isn’t she?”;(e)when rebuked for saying so, responding “But she’s really tidy. I’m, not tryin’ to disparage her but she’s, she’s a, she’s not a bad sort”;(f)referring to himself: “I’m the best criminal lawyer”, “the best criminal lawyer in Queensland” and “unquestionably the best … criminal lawyer in Queensland”;(g)referring to Constable Davies, “Look at this fat gut. She wouldn’t want a husband like me, would ya?”;(h)referring to Constable Davies: “She’s not a bad little sheila, is she? Fairly tidy”;(i)referring again to Constable Davies, “you won’t have any trouble getting married, love, because you’re really tidy”;(j)responding to a question about where he was headed when intercepted by police, by saying, “I was going down to my ex-wife’s place because someone’s been threatening my daughter, I was gonna kill the cunt”, and “I’m gonna fuckin kill this cunt”; and(k)speaking to Constable Davies: “Geez, you wouldn’t wanna fuckin’ man like me love”. The jury could conclude that he was garrulous, slurring words and making inappropriate comments. However, the video footage also would have revealed to the jury that Mr Winning was not so intoxicated that he had forgotten who he was or what he did as a profession, nor was he unable to understand and follow the directions for the road side breath test; and that whilst he was unsteady on his feet he was not so intoxicated that he could not get out of the car by himself, into the police car by himself, and put on his seatbelt by himself.