Witham v The Queen

[1998] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S86 of 1997

B e t w e e n -

JOHN ALLAN WITHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 11.02 AM

Copyright in the High Court of Australia

MR P. KINTOMINAS:   May it please, your Honours, I appear for the applicant, with my learned friend, MR R.K.M. RASMUSSEN.   (instructed by Castrission & Co)

MR A.M. BLACKMORE:   I appear for the respondent, your Honours.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GAUDRON J:   Yes, Mr Kintominas.

MR KINTOMINAS:   May it please your Honours.  The applicant seeks leave to appeal on two grounds against his conviction - sorry, seeks leave to appeal against the decision of the Court of Criminal Appeal dismissing his application for leave to appeal against his conviction and we say that both of the grounds of appeal raise matters of importance sufficient to warrant the granting of special leave.

The first ground is that the trial judge did not give a warning to the jury that it may be dangerous to convict in the circumstances of the case.

GAUDRON J:   That is right, but why should he have?

MR KINTOMINAS:   Your Honours, we say this - - -

GAUDRON J:   He does not come with any of the recognised categories of “suspect witness”, does he?

MR KINTOMINAS:   That is true.

GAUDRON J:   Well now, why should he be treated any differently from any other witness?  Why should his evidence be put on a different basis from that of any other complainant?

MR KINTOMINAS:   We say that there are a number of features of the case.  Firstly, there is a general pattern about which we say there should form, yet, another category because the categories that were adverted to in Longman and Longman made it clear, were never closed.

GAUDRON J:   Did they?  In that sense, yes, but you have to point to something that makes the evidence suspect.

MR KINTOMINAS:   Yes.  We say, your Honours, that where you have a situation where A confronts B and accuses B of having committed a crime, and apparently does so with reasonable cause; an altercation ensues; B gets the worst of it and B makes allegations against A; we say that that in itself is a situation where you have to be extremely wary of.

GAUDRON J:   I think you are driven to saying that but I would like you to identify what it is about that situation that makes B’s evidence suspect.

MR KINTOMINAS:   It makes it suspect because firstly - - -

GAUDRON J:   In fact, if he gets the worst of it, as you hypothesise, that perhaps makes it more credible.

MR KINTOMINAS:   The difficulty, your Honour, we say is that because he gets the worst of it, certainly it gives him a certain credibility and the jury would, no doubt, have to take into account that the point that is being offered as a reason why his evidence is suspect is the very point that they may regard as a point that strengthens the Crown case because it provides a motive for the accused to have committed the crime that he is charged, that is, that the jury may be very tempted to come to the conclusion that A has assaulted B because A is outraged because he believes B has committed this crime.  There is a good motive there presented.

Now, precisely because it is a two-edged sworn, there needs to be some kind of balance and we say the only appropriate balance that can be provided is by the judge using the authority of his position, pointing out to the jury that if they accept the evidence that A believes that, that whilst on the one hand it provides A with a motive to assault B, if the suspicion is well founded, then they have to critically think about B’s evidence because B may be creating a smoke screen, he may be trying to put the heat off him, so to speak, or wreaking some kind of pre-emptive revenge upon A because of what he knows or suspects is going to follow his own unmasking.

That, we say, is a motive to lie which goes beyond the ordinary run of the mill arguments that you might have in assault cases.  But when you add that to a situation where the crime which A confronts B as having committed is a crime of fraud and B already has convictions for fraud, then we say that you have the added element that a person who practices fraud, practices the art of deception is somebody that a jury has to be more than wary about.

It would be akin, in a related way, to somebody who has perhaps committed perjury in the past.  That would be a bit stronger but, nevertheless, one of the reasons why people who commit offences of fraud, false pretences and the like are successful at it are because they are particularly good at persuading the people they practice the deception on to believe them.  They have a winning and beguiling way.  A jury can be just as beguiled as one of the victims of their offences.  We say that in those circumstances there should have been a warning.  I do not know that I can put anything further on that point, your Honours.

I would say this, that if ultimately the view was to be taken that a warning should have been given, then we say the fact that it was not asked for would not disqualify the applicant from pursuing the matter in this Court.  If a warning should have been given, then it is a matter that does go to the root of the trial.  One cannot really say that the result would have been no different if a warning had been given with the authority of the trial judge.  In that regard, we say that the complainant had a motive to suppress his fraud, to throw mud and to get revenge, and that he was a person with form for fraud.

The other aspect of it, your Honours, the second ground upon which we seek leave is this:  we say that the verdict was unsafe and unsatisfactory in that it was inconsistent with the verdict of not guilty on the other count in the indictment.

GAUDRON J:   The more serious count.

MR KINTOMINAS:   Yes.  There are two aspects of that where there has been, in the submissions put forward by my friend, a bit of difference between us but I have endeavoured - I have spoken to him and I hope I can just clear those up.  I take your Honours to the brief statement of facts.  At the top of page 111 of the application book I have summarised these as follows:  the injuries sustained by the victim significantly included a fractured nose, a fairly extensive fracture to the middle third of the face with slight displacement, several broken teeth, a broken finger and a great deal of bruising to both sides of the face.

Now, my friend disputed that there were several broken teeth.  There is a reference in the summing up to the teeth being loosened.  My reference to “broken teeth” was taken out of another document that is not before your Honours in respect of the sentence.  We have had a look at the evidence and the evidence that the victim gave was that he lost part of one tooth the following day and that subsequent X-rays showed that there had been fractures down the crown.  So, I suppose, your Honours, “fractured teeth” may be better than “broken teeth” in that description.

Your Honours, the Court of Criminal Appeal dealt with this argument, and the argument put was simply this:  the more serious charge had two additional elements.  Firstly, that there was a question of it being maliciously inflicted and I do not think there was any argument that it was just not possible to try and accept the victim’s version on any basis and come to the view that it was not malicious.  The second difference between the two charges was the additional element of upping the “actual bodily harm” to “grievous bodily harm”.  Now, the Court of Criminal Appeal dealt with it on this basis, that it was an elastic concept.

GAUDRON J:   That is correct, is it not?

MR KINTOMINAS:   It is.  It is an elastic concept.

GAUDRON J:   That is almost the beginning and the end of the matter, is it not?

MR KINTOMINAS:   We say, your Honours, that any sensible assessment of the damage suffered by the complainant was that it was grievous bodily harm.  What the Crown did - and I am not suggesting the Crown set out to do it on purpose - was to create a situation where there was a magnet for a compromise verdict.  The Crown opened on the basis that it was there in case they were not satisfied; repeated that again.  Nobody suggested to them that it was not grievous bodily harm.  There was a real risk, a substantial risk, we say - - -

GAUDRON J:   Was any direction sought about this at the trial?

MR KINTOMINAS:   No, your Honour.

GAUDRON J:   No, of course not.

CALLINAN J:   You want a retrial, do you, with the grievous bodily harm pressed?

MR KINTOMINAS:   We could not have a retrial with the grievous bodily harm now, your Honours, because we have been acquitted.

CALLINAN J:   No, exactly.

MR KINTOMINAS:   But a retrial on the count on which we were convicted, if it resulted in a conviction, it would be a conviction which would be free of any suggestion that it was a compromised verdict.  The Court of Criminal Appeal suggested one other basis upon which it may have been breached and that is because of the difference between the victim’s version and the applicant’s version.  That is, the victim indicated that he had been thrown down the steps.  The case for the applicant or, really, the applicant’s co-accused, was that he had taken a swing at the applicant’s son, missed, overbalanced and fallen down the steps.  The applicant’s co-accused has denied kicking the victim in the face.

We say that the Court of Criminal Appeal is plainly in error there.  Whilst it is open to juries to accept, in some sense, a part of what a witness says and reject other parts of the evidence, this was a fairly integral matter in term of the victim’s version.  If they are not satisfied about that it seems difficult to see how they could be satisfied about what he has to say as a whole.  That, in our submission, provides no escape hatch for the Crown to support the verdict now.

The situation is that it certainly was grievous bodily harm.  Albeit, it may not have been anywhere near the more classic really bad case of grievous bodily harm, it was grievous bodily harm.  The second count really should not have been on the indictment.  The Court of Criminal Appeal indicated that there was no objection taken.  I agree there was no objection taken but the question is just precisely what sort of an objection could have been taken?  This is not a case for a demurrer.  The defence cannot dictate to the Crown what counts go into the indictment.  That is really a matter for the Crown and a matter for the Crown to exercise its powers and its rights.  What can happen, of course, is that an injustice can be later corrected in an appeal court but it is hard to see precisely what the defence can do about it.  There can be no suggestion that this was taken for some kind of tactical initiative.

GAUDRON J:   Well, there can.

MR KINTOMINAS:   I would be happy to try and meet your Honour’s worries.

GAUDRON J:   Yes.  Well, the suggestion you would not take it for fear that you deprived yourself of the chance of being acquitted on the more serious charge.  But, I mean, it seems to me, Mr Kintominas, once you accept that the concept is elastic, that is the beginning and the end of the matter.  You have to go so far as to say, “The jury could only have found grievous bodily harm”.

CALLINAN J:   Indeed, as her Honour and Justices Gummow and Kirby said in Mackenzie, which is at page 100 here of the record, an:

appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count -

Why is that not an appropriate view here?

MR KINTOMINAS:   Your Honour is referring me to - - -?

CALLINAN J:   The extract from Mackenzie appears at page 100 of the application book at about line 18.

MR KINTOMINAS:   Yes, your Honours.  In Mackenzie v The Queen ‑ ‑ ‑

CALLINAN J:   It is just the statement of principle, that is all, that this is an open view in some cases.

MR KINTOMINAS:   Yes.  If I could take your Honours to pages 101 and 102 of the report in Mackenzie, your Honours will see the quote from R v Kirkman, in the Supreme Court of South Australia, the remarks of Chief Justice King and there is a quote that starts of:

“[J]uries cannot always be expected to act in accordance with strictly logical.....principles - - -

CALLINAN J:   But take the last statement:

Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic -

and then their Honours in this Court said:

We agree with these practical and sensible remarks.

MR KINTOMINAS:   Yes, but then they went on to indicate:

Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.

Well, your Honours, those remarks, in my submission, do not justify an interpretation that only where there is absolutely no room to move, and there is no other possible interpretation of what has happened that the jury has gone off the rails, that you intervene.  If there is a strong probability that that has happened, and that the explanation being offered is really only a

theoretical one which does not warm the mind of the appellate court at all, that that is sufficient because it is then necessary to intervene to interfere to prevent, as the Court said on that occasion, a possible miscarriage of justice.

It may be all very well to point, we say, theoretically to this explanation that this is how the jury decided it but they were not satisfied that it was grievous bodily harm, but it is an explanation which no one would pay any real credence to.  It is grasping for straws.  It may be theoretically possible but it is not an explanation that fills one with any comfort at all.  The explanation that they compromised is one that far better sits with what has happened.  Those are my submissions, your Honour.

GAUDRON J:   Thank you, Mr Kintominas.  We need not trouble you, Mr Blackmore.

The Court is of the view that there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal in this matter.  Accordingly, special leave is refused.

AT 11.23 AM THE MATTER WAS CONCLUDED