Thompson v State of South Australia

[1995] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No A23 of 1995
  Adelaide

B e t w e e n -

WAYNE ARTHUR THOMPSON

Applicant

and

THE STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

DEANE J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 21 AUGUST 1995, AT 1.52 PM

Copyright in the High Court of Australia

MS B.J. POWELL, QC:   May it please the Court, I appear with my learned friend, DR M.A. PERRY, for the applicant. (instructed by Mclean & Co.)

MR B.M. SELWAY, QC, Crown Solicitor for the State of South Australia:   May it please the Court, I appear with my learned friend, MR B.J. ILLINGWORTH, for the respondent. (instructed by the Crown Solicitor for the State of South Australia)

DEANE J:   Ms Powell.

MS POWELL:   Thank you, your Honour.  There are two special leave questions in this matter:  the first concerns the application of the hearsay rule outside the criminal context; and the second concerns the application of the principle in Briginshaw to a statutory cause of action where an element of that cause of action must be proved beyond reasonable doubt.

With respect to the first question, we submit that the statement in question ought to have been admitted as to its truth under the res gestae exception.  Alternatively, we submit, that the question whether the statement is to be admitted as evidence of its truth ought to take into account the civil context in which the question arose, the fact that the evidence could not be adduced in any other way, and further that the reliability of the statement ought to have been tested, not only by the circumstances in which it was made, but also having regard to the totality of the evidence.

To put the first question in context, Mr Thompson was found lying in the gutter of a busy main city street with very severe head injuries.  Subsequently after surgery was performed only a matter of hours later, he could not recollect how he came by his injuries and the trial judge found that he had suffered amnesia as a result of those injuries.  However, when he was aroused from unconsciousness by an ambulance attendant, he made a critical statement.  He was asked what happened and he replied, “I was hit on the head”.  He was asked, with what, and he said, “I don’t know”.   It was those two statements which were excluded by the trial judge as hearsay on two grounds:  firstly that they were too far removed in time, place and circumstance to form part of the res; and secondly that they are insufficiently reliable because Mr Thompson was concussed and intoxicated ‑ ‑ ‑

McHUGH J:We are familiar with the facts of the case; do not waste your valuable time telling us what we have already read.  You persuade us.

MS POWELL:   Certainly, your Honour.  The severity of the blow or blows, we say, was likely to have rendered Mr Thompson immediately unconsciousness and it follows that that period of unconsciousness, we say, forms a bridge between the two events, that is the occurrence of the injury and the uttering of the words.  In a practical sense for him no time at all had elapsed between those two events, and we say that the cases decided since Ratten have accepted that approximate contemporaneity is sufficient, and we say that that conclusion is supported by the decision of this Court in Benz and in that case, as your Honours will remember, the statement, “It is okay; my mother is feeling sick” were admitted as part of the res by four of the five Judges of this Court, and they were admitted, notwithstanding of course, that the body had been disposed of already by that time.  And that raises a nice question as to whether, in fact, the admissibility of a statement under that exception is determined according to an extended concept of the res or in fact a narrow concept of the res with which the statement is approximately contemporaneous.  I do not know that that is a matter that needs to be necessarily determined in this case, although it would be valuable were it so.  We submit, in any event, that Benz is authority for the proposition that the res gestae is not an exception to be narrowly applied.

Consistently with this, of course, there is the trend in this Court to the development of general exceptions to the hearsay rule and that approach is, in fact, implemented in cases such as Daylight, which is on my friend’s list.  The trend is also, of course, reflected in the new Commonwealth Act, Evidence Act, which operates now at the federal level in the Australian Capital Territory and in New South Wales, rendering first hand hearsay prima facie admissible.

DEANE J:   Except, if you come into that area, the general approach seems to be always to require that the evidence be reliable and clear.  Well now, here you have a very drunk man sustaining injuries and making the comment, “I was hit on the head”.  It is rather hard to see it comes within that requirement, particularly, if I might add, when he is found lying in the gutter where you would expect to find him if he had stepped back quickly to avoid a car or you could think of any of the variety of things.

MS POWELL:   The first thing I would say in response to that, your Honour, is that he was lying parallel to the gutter, which tended to indicate that he had perhaps fallen forwards rather than being knocked backwards.  And secondly, indeed as the trial judge found and the Full Court found, being hit on the head was really the only cogent explanation for the injuries in the circumstances in which Mr Thompson was found.  He was asked a question by the ambulance attendant and his response to it was, in fact, a direct response, “I was hit on the head”.  There is nothing about the way he answered the question which would tend to suggest that his intoxication or concussion in some way had affected the reliability of the making of the statement.  What is more, he was able to distinguish between what he could remember and what he could not remember, because he was asked what happened and he said, “I was hit on the head”, then he was asked, “With what?” and he quite clearly said, “I don’t remember”.  So that within his notion he was able to distinguish between those two matters and, in our submission, that is a very cogent point towards the question of reliability.  There cannot be any question that the hearer of the statement misapprehended it, because otherwise when she asked, and his appropriate response, “With what?”, he would have said, “No, no, no, I was not hit on the head with something; I hit my head”.  He responded to those questions in an absolutely appropriate manner in the circumstances.

We say, of course, as well that the finder of fact should have taken into account all of the surrounding evidence which tended to support the reliability.  There were no protruding objects such as the medical opinion said would have been necessary to cause the injury that was, in fact, incurred.  There was only blood in the position that he was lying in, so that there was no suggestion that he might have incurred it somewhere else and staggered to the point where he was eventually found unconscious.  There was simply no evidence in the case which would support any other inference other than that he had received the blow to the head.  And we say that, indeed, those circumstances surrounding the making of the statement, when you look at the statement intrinsically, tend to support the reliability, and also that evidence which supports the utterance, and of course, support for that second proposition, that those other matters can be taken into account, is in fact supported by the judgment of the former Chief Justice Mason in Walton’s Case, at page 293, where on the issue of reliability his Honour said:

Equally, where in the view of the trial judge those dangers -

having referred to the dangers of reliability -

are outweighed by other aspects of the case lending reliability and probative value to he impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule ‑

So his Honour there clearly contemplates taking into account matters outside of the impugned statement as a test of its reliability.

We say it ought to have been admitted because it is the only evidence that Mr Thompson, through the mouth of another, can give as to the manner in which he sustained his injuries, and that is through no fault of his own and it is as a result of his injuries.  We say the evidence is highly relevant because what the statement did was to eliminate any reasonable doubt that his injuries had been incurred by his falling.  On all the evidence, that was the only reasonable hypothesis consistent with the notion that Mr Thompson had incurred his injuries innocently.

DEANE J:   I do not want to take time, but your whole argument is on the basis that, as I say, a very drunk man - and the blood alcohol content has been approached in a way that is very favourable to your client, if I might say so - a very drunk man is to be presumed when he says, “I was hit on the head” to cut out the possibility of hitting his head in an accidental fall, hitting it on some projection some way away and to be saying, “I was hit on the head” in the precise parsing and analysis sense of meaning somebody feloniously struck me a blow.  Well now, I must confess, if I run into a tree or something and someone says, “What happened?”, I am quite likely to say something hit me on the head.

MS POWELL:   But then, if your Honour was asked, “With what?”, you would say, “No, no, not his on the head by something; I hit my head on a tree”.

DEANE J:   Well if I had stayed to observe what happened, yes, but I might at the spur of the moment say, “I am not quite sure, let us have a look”.

MS POWELL:   Your Honour, we say there is nothing inherently unreliable about the way the statement was expressed and all of the evidence in the case supported the theory that he was struck a blow on the head.

DEANE J:   But, I mean, you cannot separate the two points; all this has been looked at in the context of the very onerous onus of proof, even if one accepts your Briginshaw v Briginshaw argument.

MS POWELL:   Indeed, your Honour.  But we say that given we are in the civil context, that we are dealing not with a criminal trial - nobody’s liberty is at stake - and those questions of the level of prejudice which would be suffered by the admission of the statement is so much less than it would be in the criminal context.  So that all of the misgivings that your Honour has expressed placed in the civil context where the trier of fact can give appropriate weight to the statement having admitted it, are matters which we say go to the question of admissibility.  We say that on balance the interest of fairness, given that this man is unable to adduce this evidence other than through the ambulance officer and through the hearsay statement, that in fact the interests of fairness demand that this statement be admitted, because the consequences of course are simply an award of damages.

We have referred already in the application book to the findings of the courts below and I simply repeat that there was no other cogent explanation for his injuries put forward and the finding of the Full Court that he received his injuries from an assault was the most likely explanation.  So certainly the other evidence took Mr Thompson’s case a fair way across the line of the civil onus at least and, taking into account what we have described as additional policy considerations and taking into account the interests of fairness, the statement should have been admitted.

I turn to the second special leave question.  This is a novel question which does not appear to have been directly addressed elsewhere or indeed in the judgment of the intermediate court, although it was argued before the intermediate court, and the question tests the limits of the Briginshaw principle, and in particular whether the methodology defined in that case as applying to the civil burden of proof is capable of application to the criminal burden.  In the circumstances of the case, the question stands on its own from the first question, because if the methodology described in Briginshaw was applied to the determination of the issue in this case, we say that, with or without the hearsay statement, the applicant would have satisfied the requisite onus under the statute.

In Briginshaw, the Court held that in determining whether the civil onus had been satisfied the finder of fact ought to have regard to the seriousness of the allegations made, the inherent likelihood or unlikelihood of the event occurring and the gravity of the consequences flowing from a finding.  And that principle relates to the proper reasoning process of the trier of fact and logically should be of general application.  Indeed, this Court referred to that principle in the context of criminal conduct alleged in a civil trial, probably the most common application of Briginshaw in the case referred to by my friend, Neat Holdings v Karajan Holdings.  That case, of course, is not however authority for the proposition that the principle of Briginshaw are to be narrowly applied.

The same principle will apply to the process of the trier of fact irrespective of which of the two onuses needs to be satisfied.  In this case the consequence which flows from a finding beyond reasonable doubt that an offence has occurred will be an award of compensation.  That consequence obviously is far less grave than the consequence in the criminal trial context where an individual’s liberty is at stake or at least the stigma which follows from a criminal conviction.

Your Honours, we say that this is a case which is clearly an appropriate one for special leave, because firstly the facts are very basic, they are simple and they are undisputed.  There is no issue about the quantum, the maximum of $50,000 applicable it was agreed should apply.  The question of admissibility of the hearsay statement is not clouded by other evidentiary issues.  If either question is answered affirmatively, then the applicant’s case is proved, and in the context of the ‑ ‑ ‑

GAUDRON J:   Well not necessarily.  I mean, the statement, “I was hit on the head” or “I have been hit on the head”, even if admitted, might not leave you with a proof beyond reasonable doubt, nor might it leave you that way even if you took your reverse Briginshaw submissions into account; it would be open at the end of the day to say, I am not satisfied beyond reasonable doubt.

McHUGH J:Particularly since there was no sign of robbery of your client.

MS POWELL:   This was a main city street, your Honour, and the possibility of an interrupted assault was very real, albeit in the small hours of the morning.  Your Honour, of course we agree that it would always be open to the finder of fact to say that the onus had not been discharged, but analysis of all of the facts in this case, given what the finder of fact has already addressed, and given the findings of the Full Court that there is no other cogent explanation other than that he was assaulted, in our submission would take the matter to the point of being proved on the requisite onus.

McHUGH J:Well his last memory was of car headlights coming towards him.  I must say, looking at it myself, without hearing detailed argument, I would have thought the probabilities were that he stepped back to avoid a car and hit his head on the gutter rather than he had been assaulted.

MS POWELL:   He needed two protruding objects, your Honour, not simply the gutter; two injuries ‑ ‑ ‑

McHUGH J:Then he may have rolled ‑ ‑ ‑

MS POWELL:  ‑ ‑ ‑and the severity of these injuries; this man lost the sight of his eye and hearing in one ear and there was massive amounts of intracranial bleeding.  The severity of those injuries would suggest a blow

rather than an accidental fall.  And the strange position in which he ended up; being exactly parallel to the gutter with bleeding only at that point.

Your Honours, finally we say that the Criminal Injuries Compensation Act of South Australia is a remedial piece of legislation which dramatically affects the lives of people like Mr Thompson and in line with the interests of fairness approach to the admission of hearsay, the logical application of Briginshaw, in our submission, leave should be granted in this case.

DEANE J:   Thank you, Ms Powell.  The Court need not trouble you, Mr Selway.

The Court considers that an appeal in this case would not enjoy sufficient prospect of ultimate success to warrant a grant of special leave.  Accordingly the application for special leave to appeal is refused.

MR SELWAY:   I seek an order for costs.

DEANE J:   Ms Powell.

MS POWELL:   Your Honours, we resist that order.  We have set out in our summary of argument at page 11 the reasons why we say an order for costs should not be made.  There are two points that we make there:  firstly, the application has throughout had some merit in it.  We say that is acknowledged by the fact that the trial judge and the Full Court accepted his case proved on balance.  The applicant was found to be an honest witness by the trial judge and suffered amnesia as a result of his injuries, rather than to be making up this offence in an attempt to claim money.  Having not succeeded on this application, it is through no personal fault of his own and he was unable to remain in his previous full time employment as a result of those injuries and has been unable to obtain full time employment since then.  So that he is a severely injured man with now no claim for recompense.

DEANE J:   Mr Selway, there is to some extent an element of the criminal case in this.  Do you do more than ask for costs?  If you press for costs, it may be that that will be the result, but there are considerations here that perhaps might restrain you from pressing any further.

MR SELWAY:   I take your Honour’s point.  The difficulty I have is that I do not have instructions to forgo the costs.  It may well be that the Attorney would determine in due course not to pursue the matter but that is not a matter for me to make a judgment on.  My understanding is that both my and my junior’s costs as counsel are not recoverable in this Court.  The consequence of what we are seeking is effectively the solicitor’s costs of getting the matter up ‑ ‑ ‑

DEANE J:   Very well.  The application is dismissed with costs but the Court would draw the Attorney-General’s attention to the harshness which would be involved in an enforcement of the order.

AT 2.21 PM THE MATTER WAS CONCLUDED