Wilson v The County Court of Victoria
[2007] VSC 444
•15 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9358 of 2006
BETWEEN
| KEVIN WILSON | Plaintiff |
| and | |
| THE COUNTY COURT OF VICTORIA | First Defendant |
| and | |
| BENJAMIN HAMILTON | Second Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2007 | |
DATE OF JUDGMENT: | 15 November 2007 | |
CASE MAY BE CITED AS: | Wilson v County Court & Anor | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 444 | |
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ADMINISTRATIVE LAW – Certiorari – Criminal appeal to County Court – Admissibility of defence evidence – Medical evidence – Collateral evidence rule – Expert evidence as to blood spatter – Ultimate issue rule – Evidence wrongly excluded – Denial of natural justice – Discretion to refuse relief – Inappropriate to exercise – Relief granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Priest QC Mr C Winneke | Christopher Bunnett |
| For the Second Defendant | Mr B Dennis | Victorian Government Solicitor |
HIS HONOUR:
The plaintiff, Kevin Wilson, applies for an extension of time to commence this proceeding and, if the extension is granted, for judicial review of a conviction imposed on him by the County Court of Victoria sitting at Shepparton in an appeal from the Magistrates’ Court. In essence the plaintiff complains about two rulings by the learned County Court Judge to the effect that he would not hear evidence from particular witnesses whom the plaintiff wished to call.
The second defendant was the informant in the prosecution. He opposes the relief sought. The first defendant, the County Court, will abide this Court’s decision.
Extension of time
The conviction in question was imposed on 20 June 2006. The plaintiff was convicted under s 18 of the Crimes Act 1958 of recklessly causing injury to a certain Wayne Van Den Tol. He was fined $1,500 with statutory costs of $36.
This proceeding was commenced by originating motion on 23 October 2006. Rule 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 provides that a proceeding under Order 56 shall be commenced within 60 days. So the proceeding is about two months out of time. Rule 3.02 makes general provision for extension of the time limits prescribed by the Rules, but rule 56.02(3) provides that the Court shall not extend the time fixed by rule 56.02(1) “except in special circumstances”.
There has been a good deal of judicial consideration of the scope and limits of the concept of “special circumstances” in rule 56.02(3).[1] Relying in particular on Lednar v Magistrates’ Court of Victoria[2], Mr Priest QC, who appeared with Mr C Winneke for the plaintiff, submitted that I could take into account not only the reasons for failing to bring the proceeding within time but also the plaintiff’s prospects of success, the injustice to the plaintiff if the decision were allowed to stand, the absence of prejudice to the other party and the circumstances of the case generally. Mr Dennis, who appeared on behalf of the second defendant, made no submission to the contrary. I am prepared to proceed on the basis that the plaintiff’s submissions in that respect are correct.
[1]See, eg, Lednar v Magistrates’ Court of Victoria (2000) 117 A Crim R 396 at [122]-[150] per Gillard J; Mann v Medical Practitioners Board of Victoria [2002] VSC 256 at [18] per Osborn J; Mokbel v Director of Public Prosecutions [2005] VSC 476 at [56]-[57] per Gillard J.
[2](2000) 117 A Crim R 396, esp. at [140]-[143].
In any event, even if the Court were confined to a consideration of the reasons for failing to bring the proceeding within time, I would regard the circumstances in the present case as “special”. The plaintiff’s affidavit material shows that it was at all times his intention to challenge the conviction; that up to 26 September 2006 he believed that appropriate steps were being taken by his solicitors to do so; and that upon becoming aware on that day that appropriate steps had not been taken to challenge the conviction he gave prompt instructions to new solicitors to issue proper proceedings. Moreover, the plaintiff had been encouraged in his belief that a challenge was on foot by a letter dated 18 August 2006 sent to him from the chambers of the Chief Judge of the County Court stating that the decision in question was “understood to be currently subject to an Appeal”. It is not suggested that the author’s misunderstanding was due to any fault on the part of the plaintiff. It is, to say the least, unusual that a letter containing such a mistake would be sent to a person in the position of the plaintiff.
Further, as will become apparent, I consider that the plaintiff’s arguments on the merits of the originating motion are strong and that he would suffer a significant injustice if an extension of time were denied. There is no suggestion that the mere passage of time, in itself, has caused or will cause prejudice to the second defendant or to any other person.
In his written submissions Mr Dennis said only the following in relation to this topic:
“The circumstances are not special. The plaintiff has already had an adverse result from two courts. There is no explanation as to whether the two witnesses gave evidence at the Magistrates’ Court at Shepparton and if not why not.”
Mr Priest submitted, correctly in my view, that it was irrelevant that the plaintiff had already had an adverse result from two courts and (bearing in mind that the hearing before the County Court was a hearing de novo) that it was irrelevant whether or not the two witnesses had given evidence before the Magistrates’ Court. Mr Dennis made no comment on those submissions. Indeed he made no oral submissions at all opposing the extension of time sought. In my view this is a clear case for the grant of the extension and I will make an order accordingly. I will also make the ancillary procedural orders sought by the plaintiff, insofar as they may still be required.
The proceedings in the County Court
The plaintiff attacks two rulings made in the course of the appeal to the County Court. He submits that each of them vitiates the subsequent decision of the Court to convict and fine him.
The allegation against the plaintiff was that he had struck Van Den Tol across the head with a cricket bat, and had thereby recklessly caused injury to Van Den Tol, without lawful excuse.[3] The plaintiff’s “defence” was self-defence. In other words, the prosecution needed to negative self-defence to the criminal standard.
[3]See s 18 of the Crimes Act 1958.
It was common ground that at the relevant time Van Den Tol was in a relationship with the plaintiff’s former wife and that, under arrangements the subject of orders made by the Family Court, the plaintiff’s 13 year old son, also called Kevin Wilson, was living with Wilson’s former wife and Van Den Tol. In those circumstances there was underlying tension between Van Den Tol and the plaintiff. On the day in question, Saturday 11 December 2004, Van Den Tol drove young Kevin to the plaintiff’s home for an access visit. He brought along a copy of a Family Court order by reference to which he intended to make a point about access arrangements in relation to the forthcoming Christmas period. He entered the property by the front gate and went up to the verandah at the front door. Young Kevin went through into the house. Van Den Tol remained at the front door (which was being held open) talking to the plaintiff. Van Den Tol tried to engage the plaintiff in a discussion about the access arrangements. The plaintiff was largely unresponsive. Before any physical contact took place Van Den Tol called the plaintiff “stupid” and threw the Court order into the front hallway of the house.
There was a conflict of evidence as to what happened thereafter. I will briefly summarise the relevant evidence.
Van Den Tol testified that he had just turned to leave when he felt a blow to the head inflicted by the plaintiff with a cricket bat. He claimed that, fearing a further attack, he went into the house towards the plaintiff and tried to wrest the cricket bat away from him. He said that there was a scuffle inside the hallway during which he noticed blood over his face, affecting his vision; and that he then made his escape from the house, went back to his car and called the police.
It was repeatedly put to Van Den Tol in cross-examination that he had begun the fight by forcing his way into the house and punching the plaintiff very hard in the left flank[4]. He denied this. Indeed he maintained that he had not punched the plaintiff at all at any stage.
[4]Transcript 27-28, 50.
The prosecution called evidence from Kevin Wilson junior, whose version of events was largely consistent with Van Den Tol’s account. However there was much debate about what opportunity he had had to see the events in question. His evidence was challenged on other bases as well.
Evidence of a mainly formal nature was given by the attending police officers. Police photographs of the scene and a record of interview with the plaintiff were put into evidence.
The plaintiff gave sworn evidence on his own behalf. He denied that he had hit Van Den Tol with the cricket bat at or near the front door. Rather, he said, Van Den Tol had begun the physical altercation by forcing his way into the house and punching him in the left flank or abdomen; that he (the plaintiff) had then taken hold of the cricket bat to defend himself; and that only when he had been forced back towards the end of the hallway did he strike Van Den Tol in self-defence. He was taxed in cross-examination about alleged inconsistencies with his record of interview. Van Den Tol’s version of events was put to him in detail.[5] He denied it.
[5]Transcript 132-135.
The plaintiff also called evidence from his new partner, Rhonda Dudley, and from her son, Kane Dudley (the plaintiff’s step-son) both of whom had been in the house at the relevant time. Rhonda Dudley’s evidence was inconsequential. Kane Dudley’s evidence was supportive of the plaintiff’s version of events.[6] He was cross-examined so as to suggest, among other things, recent invention.[7]
[6]Especially at transcript 145-146, 151 (lines 29-30); cf 150-151.
[7]Transcript 148-149.
The plaintiff’s counsel sought to call two further witnesses, a medical practitioner who had examined the plaintiff in Armidale, New South Wales where the plaintiff regularly worked, and a pathologist. In the end, the Judge ruled against hearing evidence from either of them. It is convenient to explain first what occurred in relation to the medical evidence.
The medical evidence
The fact that the plaintiff’s counsel intended to call medical evidence was made known to the Judge, apparently for the first time, during the plaintiff’s evidence in chief. Counsel asked the plaintiff whether he had sought medical attention in the week following the incident. Although this question elicited no objection from the prosecution, the Judge intervened. As recorded in the transcript, the following exchange took place:
“HIS HONOUR: Can you tell me why this is relevant, Ms Dixon?
MS DIXON: Why medical attention is relevant?
HIS HONOUR: Yes.
MS DIXON: It is relevant to the injury.
HIS HONOUR: But why is the injury relevant?
MS DIXON:Well, it is relevant, in my submission, to – why is the injury claims is relevant [sic]?
HIS HONOUR: Yes.
MS DIXON:In my submission, it is relevant to the defence of self-defence.
HIS HONOUR: He had given evidence that he was punched in the abdomen, but why is what happened in the days and weeks following that relevant to that?
MS DIXON:It is proposed to call some medical evidence about that, Your Honour.
HIS HONOUR: No, you will have an argument from me about the relevance of it.
MS DIXON:I understand that the prosecution case is to dispute, effectively dispute, that there was an injury caused.
HIS HONOUR: We will see what happens if you try to call that evidence, but at presently advised, I would struggle to understand its relevance.”[8]
[8]Transcript 112-113.
Counsel’s attempt to call the medical evidence was made after all of the other evidence (apart from the proposed evidence of the pathologist) had been given. Counsel sought to call the doctor by video link, saying that the doctor would give evidence “in respect of the injury received from the punch and his treatment of the appellant following this incident”.[9] Counsel pointed out that a proof of the doctor’s evidence had been duly supplied to the prosecution at an earlier time. However it seems that at no stage did the Judge see a copy of the proof, nor, unfortunately, has either side seen fit to put a copy of it into evidence before me. Partly for those reasons, and partly because of certain submissions made before me by Mr Dennis in relation to the proper interpretation of the Judge’s ruling, it is necessary to set out the whole of the exchange that led to the ruling[10]:
[9]Transcript 152.
[10]Transcript 153-156.
“HIS HONOUR: Yes. Well, Ms Dixon, what issue or issues in this matter do you contend that the evidence of the medical practitioner would go to?
MS DIXON:Only to establish that there was in fact an injury caused to the appellant.
HIS HONOUR: What issue in this proceeding does that go to?
MS DIXON:The issue of self-defence, which it is submitted is raised by the appellant in his interview with the police, if Your Honour considers it is raised, and the ———
HIS HONOUR: But the doctor, I think you’ve said, is in Armidale in New South Wales?
MS DIXON: Yes, Your Honour.
HIS HONOUR: There is no evidence before me thus far to indicate how long after the events the doctor saw – if he did examine Mr Wilson when he did so. Can you tell me what that evidence would be if he – did he conduct a physical examination of Mr Wilson?
MS DIXON: Yes, Your Honour, he did.
HIS HONOUR: Yes. Can you tell me when that would be?
MS DIXON: Yes. It was on 22 December.
HIS HONOUR: 22 December, 11 days after the event.
MS DIXON: 11 days after the incident.
HIS HONOUR: Yes. I assume that his evidence would be based upon his examination at that time and the history that he was given by Mr Wilson?
MS DIXON:And also some tests of – that he conducted in relation to the appellant’s urine and essentially ———
HIS HONOUR: Yes, but the problem is, it seems to me, Ms Dixon, that 11 days have passed and that’s a long time for a medical practitioner to be able to express an opinion as to causation, given the passage of the 11 days and his need to rely on the history that he is given.
MS DIXON:Well, in my submission the evidence is consistent with – the general practitioner would describe what he saw as being ———
HIS HONOUR: Well, he might. He might, but it seems to me, Ms Dixon, that at its highest that evidence could do nothing more than go to Mr Wilson’s credit. It cannot go to the issue of self-defence, as I understand it. Is that right?
MS DIXON:It probably is a matter that goes to his credit and to his credit on the point of whether or not he had an injury, whether he received an injury.
HIS HONOUR: But it can only go to corroborate his credit, it seems to me. Isn’t the difficulty with that that under the rules of evidence credit is a collateral issue. Self-defence is not a collateral issue. It’s an issue that the defence can raise and it’s for the prosecution to negative, if I can put it that way. But it seems to me that at best the doctor’s evidence can do [sic] more than be offered in support of the credit of Mr Wilson.
As I have said, unless you can persuade me to the contrary my view would be that the rule against collateral issues would prevent its reception for that purpose.
MS DIXON:Well, in my submission he did make certain objective findings that ———
HIS HONOUR: But Ms Dixon, he has seen the man 11 days later.
MS DIXON:Yes, and conducted an examination and some scientific testing of the appellant’s urine which caused him to make some objective observations ———
HIS HONOUR: That there was the presence of a substance or substances in the urine. That may be. But that cannot demonstrate, as I understand it, the aetiology, in other words when or how it came to be there. It could only be that it was present at the time of the examination and he might offer an opinion as to whether it was consistent or not with a certain state of facts. But to that extent it seems to me it’s contingent upon accepting or not accepting Mr Wilson’s account.
MS DIXON:Well, Your Honour, the evidence is essentially offered in response to any suggestion that the appellant wasn’t the subject of an injury. That’s the basis upon which the evidence is offered, both in terms of emotional injury and physical injury. As indicated he did see the patient 11 days later. But he did make findings in relation to that time lapse, but I can’t put it any higher than that, Your Honour.
HIS HONOUR: Yes, well, we’ll deal with that first. Mr Lynch, do you want to be heard on that?
MR LYNCH:Well, other than to repeat part of what Your Honour has said about the actual complaint that is made (indistinct) in the evidence, the evidence is that he was hitting [sic] in the stomach. The complaint ———
HIS HONOUR: Well, what was put to Mr Vandentol in cross-examination was that he was hit in the left flank. But I think Mr Wilson’s description of it was that he was hit in the stomach.
MR LYNCH:Initially he said he was hit in the guts, I think that’s what he may have said at the commencement. This is a plaint – a complaining of a pain in the left flank. The consistency is with a renal contusion. Now, the link between those two and the evidence might stop there.
HIS HONOUR: Do you want to reply, Ms Dixon?
MS DIXON:Well, obviously the – I am being careful not to simply try and put the evidence before you, given that Your Honour is ruling on its admissibility. So I would suggest that the evidence went beyond what my learned friend says and that my client demonstrated physically in the witness box where he received the blow. But I can’t add anything to this submission I’ve already made.”
The Judge then gave his ruling by which he refused to allow the medical evidence to be led. I have before me what is described as a revised version of the ruling. I gather that the revised version was produced some two months or so after the hearing. The Judge had been on leave in the meantime. The revised ruling is in the following terms:
“The appellant would, if permitted, wish to call evidence from a general medical practitioner who I am told would give evidence that he conducted a physical examination of Mr Wilson on 22 December 2004. The events with which this appeal is concerned occurred in Shepparton on 11 December 2004. The doctor did not see Mr Wilson, on what I have been told, between 11 December 2004 and 22 December 2004.
Ms Dixon seeks to introduce the evidence because she says it would go to the issue of self-defence and it would also go to the issue of Mr Wilson’s credit. Those questions in turn relate to an account given by Mr Wilson in which he says that he was punched either in the left flank or in the gut or the stomach, depending upon what part of the evidence is accepted and whether there are any discrepancies between those descriptions that I have just given.
The question of self-defence arises, in my view, on the evidence of Mr Wilson that he was punched. The respondent does not accept that evidence and it is therefore an issue to be determined in the resolution of this appeal. That is to say, the issue of self-defence is a matter that needs to be dealt with in the resolution of the appeal.
It seems to me that the doctor’s evidence at its highest cannot go to the issue of self-defence but is strictly evidence that would be adduced, if permitted, in the support that it may provide for Mr Wilson’s assertion that he was punched.
The rule against – the finality of evidence on collateral issues seems to me to cover this. Ms Dixon was asked whether there was any reason why that rule should not apply and no submission was made. In my view it determines the position adverse to the application to introduce the evidence of the doctor. I do not regard his evidence as being capable of doing anything more, if accepted, than providing support or corroboration for Mr Wilson’s allegation that he was punched and for that reason I do not propose to permit the evidence to be led.”
In their written submissions the plaintiff’s counsel asserted that the Judge understood – correctly – that whether the plaintiff had been punched went to a fact in issue, self-defence. However, according to the submissions, the Judge fell into error in holding that the rule as to finality on collateral issues had application and that the evidence of the doctor was inadmissible if it did no more than support or corroborate the plaintiff’s evidence. Counsel submitted that whether the plaintiff had been punched was not a collateral issue but a matter directly in issue and that therefore medical evidence which tended to support the plaintiff’s account that he had been punched was both relevant and admissible, and that the Judge erred in excluding it.[11] Counsel’s oral submissions were substantially to the same effect. Counsel also made the point, with which I would agree, that it did not do justice to Ms Dixon to say, as his Honour did, that she had made no submission as to why the collateral evidence rule should not apply.
[11]Counsel referred to Nicholls and Coates v R (2005) 219 CLR 196 at 215-16, 221-23; R v FTG (2007) 15 VR 685 at [73]-[74]; R v RGP (2006) 167 A Crim R 468 at [11].
Written submissions prepared by Mr Dennis for the second defendant were filed and served on the same day as the plaintiff’s written submissions. Mr Dennis’ written submissions contained an elaborate defence of the Judge’s ruling. That defence was founded on the proposition that the real issue before the Judge was as to the sequence in which the respective blows had been struck, not as to whether the plaintiff had been punched at all. It was put that his Honour himself must have perceived this and that his ruling should be interpreted accordingly. The submissions contained long extracts from Goldsmith v Sandilands[12] in relation to the rules of evidence concerning collateral facts.
[12](2002) 190 ALR 370; (2002) 76 ALJR 1024.
At first Mr Dennis continued to maintain this argument in his oral submissions before me. However it was pointed out to him that Van Den Tol had categorically denied punching the plaintiff at all. Mr Dennis then submitted that, nevertheless, counsel for the prosecution below had not made an issue of this in cross-examination of the plaintiff or otherwise. In response, it was pointed out that counsel (Mr Lynch) had, towards the end of his cross-examination, put to the plaintiff, in detail, the precise version of events given by Van Den Tol, which left no room for any suggestion that Van Den Tol had punched the plaintiff at any stage.[13] It was also pointed out that the question whether there was any punch at all by Van Den Tol remained a hot, fundamental issue in final submissions below.[14]
[13]Transcript 132-134.
[14]Transcript 169 (line 25), 182 (lines 7-8).
Mr Dennis ultimately acknowledged that he could not substantiate the justification advanced in his written submissions for his Honour’s ruling. Further, he accepted that the exclusion of the medical evidence could not be defended in the way expressed in the ruling itself, namely by means of the collateral evidence rule. Nonetheless, Mr Dennis urged me to reinterpret the ruling in yet another way. He submitted that his Honour was really saying that the proposed evidence, though logically relevant, was so tenuous and so remote as to be inadmissible. Mr Dennis referred in particular to R v Stephenson[15] in which the Full Court had said:
“Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add to or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.”
[15][1976] VR 376, 380-381.
Mr Dennis relied on the fact that the plaintiff’s counsel had told his Honour that 11 days had passed between the incident and the visit to the doctor and that his Honour had made particular reference to this in the exchange leading up to the ruling, as well as mentioning it in the ruling itself.
However, I agree with Mr Priest that the ruling cannot be upheld on that basis. If his Honour had intended to exclude the evidence on the ground of tenuousness or remoteness or lack of weight, he could easily have said so. He did not. I note that the ruling is a revised ruling. It seems to me that his Honour had had fixed in his mind from the time when the medical evidence was first mentioned that any evidence which merely corroborated the plaintiff’s evidence that he had been punched was collateral and therefore inadmissible. That view was erroneous in law.
Further and in any event, I would not be prepared to uphold the ruling on the basis that the medical evidence was considered by his Honour to be tenuous or remote or lacking in weight in circumstances where his Honour had not seen or called for a copy of the proof of evidence and where the second defendant has not tendered a copy of it before me and where there was no other evidence before his Honour tending to cast doubt on the cogency of the proposed evidence. His Honour did refer, during argument, to the possibility that the signs observed by the doctor 11 days after the event may have been caused by unrelated, intervening events, but this was mere speculation. His Honour had effectively stopped Ms Dixon from eliciting evidence from the plaintiff about the period leading up to his visit to the doctor.[16]
[16]Transcript, 112-113.
The pathologist’s evidence
His Honour’s second ruling can be dealt with more briefly.
Ms Dixon sought to call a consultant forensic pathologist who was said to have expertise in trauma pathology, crime scene investigation, blood staining and blood spatter. Once again, the prosecution had been duly served with a proof of the proposed witness’s evidence but his Honour did not see it and neither side has put a copy before me. Ms Dixon told his Honour that the hypothesis of the pathologist was that the blood spatter at the scene was consistent with the plaintiff’s version of events but not consistent with Van Den Tol’s version of events – in particular, that he would say that the blood spatter indicated that the blow to Van Den Tol’s head took place inside the house, not outside it.
As soon as this was explained to the Judge, his Honour said[17]:
“Isn’t it really the ultimate question for the court to decide, where things occurred and in what sequence?”
[17]Transcript 160.
Ms Dixon replied that blood spatter evidence was frequently given in courts[18], and that it was given to assist fact-finders to decide, among other things, where trauma may have been inflicted and what the movements of persons may have been. She said that the proposed evidence was of that nature and did not purport to conclude the ultimate issue, which she identified (correctly, in my view) as whether the plaintiff was acting in self-defence at the relevant time. His Honour continued to indicate that he saw difficulties with the evidence on the basis that it amounted to the giving of an opinion on the ultimate issue, which he identified as “the sequence of events”.[19] His Honour also queried the source and the nature of the information on which the pathologist’s opinion was based, especially in relation to the appearance of the premises and the events that had occurred.
[18]This is well known: see Freckleton and Selby, Expert Evidence, Volume 5, Chapter 97.
[19]Transcript 161.
Faced with his Honour’s observations, Ms Dixon said that there was a more confined way in which the pathologist’s evidence could be led, tied exclusively to the physical evidence relating to blood spatter.
His Honour then sought submissions from the prosecutor. The prosecutor objected to the evidence. He raised questions about the pathologist’s qualifications in relation to blood spatter in particular. He then read a passage from the proof of evidence as follows:
“I conclude that it is likely that Mr Van Den Tol was struck once to the head with the cricket bat with a relatively minor degree of force inside the house. He then appears to have walked out of the house with either no or minimal further contact between the two persons, eventually coming to a position on the road in the vicinity of the motor vehicle.”
The prosecutor commented that the pathologist relied very much on the actual “dots on the ground” whereas many unknown factors might have contributed to the configuration of the dots. Finally, echoing the Judge’s proposition, he said:
“… this case is about if your Honour accepts the set of circumstances described by Mr Van Den Tol or by Mr Wilson senior, and that is the very matter that this expert appears to be answering. In that sense it cannot be that he can give the ultimate – that is for you to determine in this appeal.” [20]
In other words, the prosecutor objected on three bases: the witness’ expertise, whether the matter was properly the subject of expert evidence, and the “ultimate issue” point.
[20]Transcript 165.
His Honour’s revised ruling was as follows:
“Ms Dixon has indicated to me that if permitted to do so, she would call evidence from a person who may or may not have expertise as a pathologist. During the course of his response to Ms Dixon’s argument, Mr Lynch embarked upon an examination of the potential witness’s expertise and also whether or not the evidence he would give is properly the subject of expert evidence or whether it is confined to matters which are within the everyday knowledge and commonsense of persons. See, for example, the decision of the High Court in Clark v Ryan.
I do not propose to deal with those matters because they have not been fully argued before me. It may well be that those questions could only really be determined by an investigation by the calling of evidence as to the witness’s qualifications, and those qualifications can of course extend beyond formal academic qualifications to practical experience. I have not investigated that matter and the ruling that I give now has nothing to do with the prospective expertise of this witness; rather it is whether the subject of his proposed evidence goes to matters of expertise or whether they are matters within the common knowledge of people.
An issue that has been raised concerns whether the evidence that this witness would give, the opinion evidence that he would give, goes to the ultimate issue which I need to determine in this appeal. Ms Dixon submits that it is evidence which could be received by the court and used to assist in the resolution of the ultimate issue along with other evidence but that it is not of itself evidence that goes to the ultimate issue. Mr Lynch submits that the only purpose that the opinion is being offered is because it goes to the ultimate issue.
I am inclined to agree with and accept the submission made by Mr Lynch. In my view, the sole purpose – from what I have been told of this man’s evidence if permitted to be given – would be to offer an opinion on the very question which I am called on to decide. I do not propose to permit him to give that evidence, nor to give any evidence along the lines described by Ms Dixon.”
Notwithstanding that his Honour said that his ruling related to “whether the subject of [the pathologist’s] evidence goes to matters of expertise or whether they are matters within the common knowledge of people”, it is clear that, in the end, the ruling was not in fact based on any such distinction or principle. Mr Dennis did not suggest that it was.
Nor did Mr Dennis argue, except in the faintest of terms, that the ruling could be upheld on the basis actually expressed by his Honour, namely that the evidence was rendered inadmissible by the “ultimate issue” rule. It is true, as Mr Dennis submitted, that the evidence related to issues that were “highly relevant”, indeed (as he further submitted) “critical”. However, as Mr Priest submitted, the proposed evidence did not endeavour to usurp from the Court the task of determining the ultimate issue.[21] Rather, the evidence (as foreshadowed) did no more than purport to assist the Court in determining where, and with what degree of force, the blow with the cricket bat was struck. It went to establishing that an assertion of fact relevant to a fact in issue was the more likely to be true. Had the expert purported to conclude, in terms, that the plaintiff was “acting in self-defence” at the time of the blow, it might have been arguable that, to that extent, the evidence was inadmissible as purporting to determine the ultimate issue. But it seems that not even the expert’s conclusion (much less the body of his evidence) was framed in that way. The ultimate issue could not properly be defined in the way the Judge defined it, namely “the sequence of events”. And even if the ultimate issue could be defined in such a fashion, evidence that merely “goes to” (as distinct from purporting to determine) that issue would not be inadmissible. On its face, the Judge’s ruling indicates a misapprehension of the relevant evidentiary principles and thus error of law for the purposes of certiorari.
[21]Compare R v Darrington & McGauley [1980] VR 353 at 381-82; R v Haidley & Alford [1984] VR 229 at 235; Freckleton and Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 2005, 277-288.
However Mr Dennis argued, relying once again on R v Stephenson[22], that the ruling should be upheld on the basis that the expert’s proposed evidence was not properly founded and therefore lacked weight.
[22][1976] VR 376.
Mr Dennis asserted that the expert’s conclusion must have been based in large part on what he had been told by the plaintiff and that this was not a matter of expertise. On the other hand, Mr Dennis acknowledged that experts are routinely permitted to give evidence based on assumptions derived from information supplied by parties, provided that the assumptions and the sources of the information are disclosed.
Mr Dennis then submitted that the pathologist could not, based on the available photographs of blood spatter alone, have drawn any worthwhile conclusions about how many times Van Den Tol had been hit, or with what force, or where he was when he was hit.
I cannot accept Mr Dennis’ submissions in this regard. He was really inviting me to express my own views about the weight of the proposed expert evidence in circumstances where the Judge below could not (at least without considering the entirety of the proposed evidence) properly have done so, and did not do so; and where I am in an even less advantageous position to do so. Among other things, the photographs showing the blood spatter are not in evidence before me. In any event, the proceeding before me is an application for judicial review, not an appeal. Generally speaking, the factual merits of the parties’ cases below do not fall for examination in a proceeding such as this.
Discretion to refuse relief
Finally, Mr Dennis argued that relief should be refused in the exercise of the Court’s discretion. He submitted that I should consider the whole of the transcript of the evidence below and conclude from it that the prosecution’s case was so overwhelmingly strong that any error on the part of the Judge in excluding the evidence in question could not have made any difference.
Further or alternatively, Mr Dennis submitted that it must be open to a judge in a criminal case to exclude particular evidence proposed to be led by the defence if satisfied by other evidence that the proposed evidence could not raise a reasonable doubt in the mind of the jury or the judge (as the case may be); and that I should infer that, in the present case, the learned Judge had formed that view in relation to both of the items of proposed evidence.
I have read and carefully considered the whole of the transcript, as Mr Dennis requested me to do. However I am unpersuaded by Mr Dennis’s submissions.
As McHugh J said in HG v The Queen[23]:
[23](1999) 197 CLR 414, at 442-443 [97].
“Denying a person the right to call admissible evidence which that person wishes to call to rebut a claim or charge is a denial of natural justice.”
Accordingly, the matters complained of in this case amount to denials of natural justice (as well as errors of law), as indeed the plaintiff has alleged in the originating motion. In other words, the plaintiff, as the accused in a criminal proceeding, has not been accorded a fair hearing. The scope of the discretion to refuse relief (by way of judicial review) in relation to breaches of natural justice in criminal proceedings cannot be any broader than it is in relation to breaches of natural justice in civil or administrative proceedings.[24] This was plainly assumed by Habersberger AJA (with whom Warren CJ and Ashley JA agreed) in Clark v Ryan[25]. That was a case in which judicial review was sought of a decision given by the County Court in its appellate criminal jurisdiction. Citing several migration cases decided by the High Court, Habersberger AJA said[26]:
“I accept the appellant’s submission that the authorities establish that once a breach of procedural fairness is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome and that such a situation will be a rarity. The exception is held in reserve to guard against insignificant, purely formal and immaterial mistakes, and unless the breach can be so classified, the person affected who claims the writ is normally entitled to relief.”
The first sentence of that passage was recently quoted with apparent approval by Redlich JA (with whom Warren CJ and Chernov JA were in general agreement) in Ucar v Nylex Industrial Products Pty Ltd[27], a case concerning a denial of natural justice by the County Court in a “serious injury” application under the Accident Compensation Act 1985. Ucar confirms that the discretion is very narrowly confined. It will be available in only two situations: first, where there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness; and, second, where the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.[28]
[24]Judicial review is distinct from appeal. Part VI of the Crimes Act 1958 has no application. There is no analogue to the “proviso” to s 568 of the Crimes Act 1958, which empowers the Court of Appeal to dismiss an appeal if it considers that “no substantial miscarriage of justice has actually occurred”. In any event, it is fundamental that an accused should be given a fair hearing: see R v Jones [1971] VR 72 at 76. There is nothing to the contrary in the passage from the judgment of Brooking J in M v M [1993] 1 VR 391 at 398-99 to which Mr Dennis referred to in this context.
[25][2005] VSCA 311 at [38].
[26]Ibid (citations omitted).
[27][2007] VSCA 181 at [70].
[28][2007] VSCA 181 at [75].
Mr Dennis was in no position to show that either of those situations existed. He could not and did not point to any “incontrovertible fact or point of law” which favoured the prosecution. In any event he could not show that there was some “discrete basis” (unaffected by the procedural unfairness) for the decision, because his Honour’s reasons for his substantive decision were not in evidence before me. (Due to a technical malfunction, they had not been recorded or transcribed). Nor could I possibly be satisfied that on a rehearing the result would inevitably be the same. The plaintiff had by no means admitted guilt. The evidence was heavily in conflict. I did not myself hear the evidence as it was given. Neither the photographs nor the plaintiff’s record of interview nor any of the other exhibits nor the proofs of the wrongly excluded evidence were put into evidence before me.
There is no merit in the further or alternative way in which Mr Dennis put his argument on discretion, namely the suggestion that the Judge could properly, and did, form the view that the proposed evidence was incapable of raising a reasonable doubt in his mind. As Kirby J (with whom Hayne J generally agreed) said in Goldsmith v Sandilands[29]:
“Until the evidence at the trial is concluded and the last word spoken in argument, our legal system requires the decision-maker to keep an open mind about the significance of particular evidence as it may cast light on the truthfulness or falsehood of the assertions of a party or other witness. In the well-known words of Denning LJ, ‘no cause is lost until the judge has found it so; and he cannot find it without a fair trial’.”
Similarly, in John v Rees[30], Megarry V-C said:
“… the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
[29](2002) 76 ALJR 1024 at [62]. Quoted in Ucar [2007] VSCA 181 at [88].
[30][1970] 1 Ch 354 at 402. Quoted (indirectly) in Ucar [2007] VSCA 181 at [58].
Other matters
I note that the second defendant did not dispute that the rulings were part of “the record” for the purposes of certiorari.[31] Nor did he submit that I should not have regard to other parts of the transcript for the purpose of interpreting the rulings. Indeed he urged me to do so.
[31]Compare Wilson v County Court and Another (2006) 164 A Crim R 525 at [35]; s 10 Administrative Law Act 1978.
Further, the second defendant did not argue that the plaintiff had failed to show that one or other of the rulings had vitiated the decision. He could hardly do so. In both cases the excluded evidence went to an issue or topic which was in controversy and which, even without the reasons for the final decision, one may readily infer was material to the final decision. That is enough: it is unnecessary for the plaintiff to show a causal connection between the procedural unfairness and the decision: see Ucar.[32]
[32][2007] VSCA 181 at [78]-[79].
Conclusion
For the reasons given, the orders made by the County Court must be quashed. The plaintiff’s appeal to that Court should be heard and determined again in accordance with law. Because the original decision must have involved findings about the plaintiff’s credibility, the Court should be reconstituted for the re-hearing.[33] The second defendant should pay the plaintiff’s costs of this proceeding. Subject to any submissions as to form, I would make orders as follows:
[33]See Wilson v County Court (Vic) & Anor (2006) 164 A Crim R 525 at [55] and cases there cited.
(1)Insofar as necessary, the requirements of rules 5.03(1), 8.02 and 45.05(6) of the Supreme Court (General Civil Procedure) Rules 2005 be dispensed with and the plaintiff be authorised to commence this proceeding by originating motion in Form 5C.
(2)The time for commencing this proceeding be extended until the date of its commencement, namely 23 October 2006.
(3)The orders made by the County Court of Victoria on 20 June 2006 in relation to the plaintiff be quashed.
(4)The matter of the plaintiff’s appeal to the County Court of Victoria be remitted to that Court (differently constituted) to be heard and determined again in accordance with law.
(5)The second defendant pay the plaintiff’s costs of this proceeding.
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