R v Winning [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

3. Mr Winning was wearing only a pair of shorts. His vehicle had sustained damage on the bonnet where the sign had hit and there was damage to a front tyre.

4. Mr Winning identified himself and said, when asked, that he had been drinking. He nominated the amount as “a bottle of rum”, explaining that he had had a sleep since finishing it. He was slurring his words.

5. He said (twice), “You’re not going to pinch me”.

6. One of the officers² said she was going to administer a roadside breath test. Mr Winning was still sitting in the car. His hands were down below his chest, holding his passport and $300 in cash, made up of six $50 notes. At the conclusion of the roadside breath test, Mr Winning lifted his hands. He put his passport down on the seat beside him, and held up his right hand with the notes in it, saying: “Can’t pay my way out this, can I?”.

7. One police officer³ responded, “No. No, you definitely can’t pay your way out of this”. Con Davies responded “No”.

8. After the officers’ responses, Mr Winning folded the cash in his right hand and extended his right arm out of the car, and towards the officers, keeping it there for some time. He remained seated with his left hand on the steering wheel. He only withdrew the extended arm when he was told he was detained and to turn his car off.

9. Mr Winning then said that “someone’s been threatening my daughter and that’s the only reason I’m drivin’”. He was a told that he was detained for the purpose of a further breath test which would be done at the police station.

10. In the course of police telling Mr Winning that the car would be secured, Mr Winning said, “You gonna let me go. You’re not gonna lock me up, are ya?”

11. As Mr Winning was taken out of the vehicle, he told Senior Constable Parkin that he did not need to call him Mr Winning, but rather “call me Doug”. At that point, Mr Winning still had the $300 cash in his hand. Then followed this exchange:

“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.”

12. Mr Winning blew 0.191 per cent at the roadside breath test. Later, on the breath analysis machine at the police station, he recorded 0.146 per cent.

13. As a result of the actions recited above, Mr Winning was charged on two counts. The first was drink driving. There is no issue concerning the conviction on that count. The second was a charge of official corruption, arising out of his proffering $300 and asking if he could buy his way out of the situation, and asking whether the police wanted a lazy quid. After a trial, Mr Winning was convicted of official corruption. He appeals that conviction on two grounds, namely:(a)Ground 1 – a miscarriage of justice occurred because the learned trial judge failed to give a direction in terms of either Edwards v The Queen⁴ or Zoneff v The Queen⁵ as to the use of the lies in the Channel 9 interview;(b)Ground 2 – the verdict was unreasonable and cannot be supported by the evidence; and(c)Ground 3 – a miscarriage of justice occurred because the learned trial judge failed to give a direction in terms of Liberato v The Queen (1985) 158 CLR 507 as set out in D**e Silva v The Queen (2019) 268 CLR 57 about the use of the appellant's statements in the channel 9 interview.⁶

The Channel 9 interview

14. After his first Court appearance in respect of the two charges, Mr Winning was interviewed by a Channel 9 journalist, and the interview was recorded on video.⁷ In the course of the interview he was asked how he felt about how things went in Court. As to the drink driving charge he said that he was very ashamed and had said so in Court. He then moved to the charge of official corruption, saying:⁸

“… the other matter, the charge of official corruption … which is related to the drink driving matter, I am totally innocent of. … the two young police officers who dealt with me were courteous and polite and when I was taking my money out of my console in my car to go to the watchhouse, accepting at all times that I was going to be … charged with drink driving, I was … flashing money around, making a joke and saying, you want a lazy quid? At no time did I offer the police money to withdraw any charges or to give me any special treatment … these … two young officers … would … have had to be acting in concert in corruption … and I would’ve needed the belief … they could be … corrupted … for that charge to succeed and, … that on my part would be an act of insanity. It was a drunken, facetious, mischievous joke and … for that, I’ve been charged with official corruption. … I am totally innocent of that charge. I had no intention at all to corrupt anybody.”

Ground 1 – directions on lies

15. Ground 1 was concerned with what was said to follow from comments by the Crown Prosecutor in his address to the jury. Specifically, it concerned a passage where, having referred to Mr Winning as having a fist full of fifties and saying “I can’t pay my way out of this, can I?”, the Crown Prosecutor said:⁹

“We have a fist full of 50s with the comment, “I can’t pay my way out of this, can I?” How does the officer respond? “No. No. You definitely can’t pay your way out of this.” A fist full of 50s. And after the accused gets out of the car the officer inquires whether he wants to keep the money in his possession or put it in the car. There’s a mention of money. Officer says money. The accused says, “I’ll keep it in my possession.” Not money in my possession. “You want a lazy quid?” And he says that twice. He repeats it. “You want a lazy quid?” Not once; twice.

A lazy quid. Well, that could mean money you don’t have to earn. This was said in close proximity to, “I can’t pay my way out of this, can I?” Even though this accused was intoxicated and, … it’s not contentious – he’s intoxicated. Look at the footage. But even though he’s intoxicated he knew what he was doing. And the officer says, “No.” On all occasions, “No.” Yet, in the Channel 9 interview he says he took his money out of the console and [he] was flashing it around making a joke and saying, “Do you want a lazy quid?” Have a look at the footage see what he – where it actually came from. And you may think he’s got the intent to make a joke, he also has the intent – if he has the intent to make a joke, he has the intent to offer them a bribe.”

16. The first lie was said to be the contrast in the versions of where the money came from, one being the console and the second being Mr Winning’s pockets. This was said to be highlighted by the Crown Prosecutor in the passage referred to above.¹⁰ It was then contended that because the Crown Prosecutor had suggested there was a lie, it warranted a direction such as was identified in Edwards v The Queen,¹¹ a direction applicable where the lie is said to be one made because of a consciousness of guilt.

17. The relevant passage in Edwards is that of the plurality:¹²

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”

18. In my view, there are a number of insuperable difficulties confronting this contention.

19. First, there was no relevant lie. In the body cam footage¹³ one can see Mr Winning producing his passport and $300 in cash from somewhere, but it is not obvious whether it was from his pocket or the console. The latter seems highly probable given that he produced his passport as well. It is hardly a rational view that Mr Winning was carrying his passport when he intended to drive to his ex-wife’s place, or to a service station to get some smokes.¹⁴ However, when Mr Winning referred to taking his money out of the console, that could not be said to be a lie.

20. Secondly, the Crown Prosecutor did not suggest that it was a lie. When the Crown Prosecutor referred to Mr Winning’s comment in the Channel 9 interview the emphasis was on the fact that Mr Winning contended it was a joke, not on the source of the money. There was no suggestion by the Crown Prosecutor that in making reference to the console, that was a lie. Even when expressly asked by the learned trial judge whether anything said in the Channel 9 interview was being relied on as a lie, that was immediately denied.¹⁵ The Crown Prosecutor identified the significance of the Channel 9 interview as being the admission that Mr Winning had the money and was waving it around.¹⁶

21. Thirdly, no such lie was identified as an issue in the trial. No direction on lies was sought by defence counsel.

22. Fourthly, in circumstances where there was no lie, nor one suggested by the Crown, and no direction was sought by defence counsel, it is hardly surprising that no such direction was given by the learned trial judge. Mr Horvath of Counsel, appearing with Mr Lamb on behalf of Mr Winning on the appeal, accepted that the jury were not urged to consider any of the statements in the Channel 9 interview as lies.

23. Fifthly, it is impossible to see how the suggested inconsistency constituted a lie borne out of a consciousness of guilt. The source of the money was not an issue. It was not an element of the offence. That Mr Winning had the money in his hand in his car was not contentious. Nor was it contentious that he said the words “I can’t buy my way out of this, can I?”, and (twice) “Do you want a lazy quid?”. The significance of the money lay in what Mr Winning offered to the police, and not with anything else. The central question at the trial was whether he had the intent that formed part of the elements of the offence, and the source of the money had no relevance to that.

Ground 2 – unreasonable verdict

33. The principles applicable to this ground are not in doubt.

34. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen¹⁹ requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.

35. The role of the appellate court was restated in Pell v The Queen:²⁰

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

36. The High Court restated the pre-eminence of the jury in R v Baden-Clay.²¹ As summarised by this Court recently in R v Sun,²² in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,²³ in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”²⁴

37. In R v Miller²⁵ this Court recently emphasised the proper approach to an appeal where this ground is advanced:²⁶

“[16] In our respectful opinion, not enough attention has been given to the limitations enunciated in M v The Queen and which are consistent with early judicial appreciations of the limitations of an appeal against the verdict of a jury on a question of fact. It is fundamental that it is not sufficient for an appellant merely to show “discrepancies” or “inadequacies” in the evidence or to show that the evidence is “tainted” or “otherwise lacks probative force”. It is necessary to demonstrate that such features appear in the evidence “in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted”.

…

[18] An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

38. In support of this ground it was submitted that this Court should examine the video footage from the police body cams (Exhibits 2 and 3) as well as the video of the Channel 9 interview (Exhibit 4). The submission referred to Pell v The Queen,²⁷ where the High Court warned against an appellate court doing so, but also accepted that there might be exceptional cases where the parties contend there is some advantage to doing so. Here it was contended that the video footage was effectively all of the evidence relevant to the question of intent and that the following factors were in favour of the footage being viewed:²⁸(a)the body cam footage is of the event itself (that is to say, the alleged offer);(b)the Channel 9 interview is an out of court statement containing both admissions and exculpatory statements;(c)the Crown case was a circumstantial one, where the offer and the corrupt intent had to be inferred from Mr Winning’s actions and statements;(d)Mr Winning’s level of intoxication, demeanour, pronunciation, intonation, actual words spoken and bodily actions, while holding the money and making the various statements, were available to the jury and cannot be discerned from the transcript alone;(e)Mr Winning’s continued level of intoxication and behaviour after the exchange at the roadside were relevant to determining whether there was an offer and corrupt intent;(f)the evidence otherwise of the police witnesses was not challenged, and was only ancillary to the body cam footage and interview; there would be no imbalance of undue focus if the footage was viewed; and(g)the Crown did not object to the recordings being viewed.

39. The Crown supported the proposition that this was a case where this Court should view Exhibits 2, 3 and 4.

40. The trial in this case was a little unusual in the sense that Exhibits 2, 3 and 4 were played to the jury but they were not provided with a transcript for their assistance. For that reason the appeal record itself did not contain a transcript that this Court might use in its review of the evidence in the normal way. Instead, affidavits were filed exhibiting transcripts. The first was a transcript prepared by the Crown.²⁹ The second was an affidavit filed by the appellant³⁰ which exhibited the Crown’s transcripts in amended form, including agreed changes.³¹

41. That being the case, I have examined the relevant portions of each of those exhibits. I have done so conscious of the fact that this Court is not the jury in the trial. It is not the role of this Court to substitute trial by appellate court for the trial by the jury. Those exhibits have been examined for the purpose of being able to consider the essential question in the appeal, namely was it open for the jury to be satisfied beyond reasonable doubt of guilt.

Before the roadside breath test

43. While Mr Winning was in the car he was asked if he had had anything to drink. He responded, “A bottle of rum”.

44. Mr Winning spoke to Constable Davies, saying “You look beautiful [INDISTINCT] darlin’.”

45. When asked how long ago he had finished the bottle of rum, he was unsure, but said that after finishing the bottle of rum he had a sleep.

46. Mr Winning twice said, “You’re not going to pinch me”.

47. As Constable Davies positioned the roadside breath instrument so that Mr Winning could blow into it, he was looking down at his hands, in which the passport and $300 cash were being held. He then released his left hand to hold the breath testing instrument.

After the roadside breath test

48. Mr Winning raised his hands to about chest level while still in the driving seat, holding his passport and $300 cash in $50 bills.

49. He placed the passport to his left, at the same time opening his hand with the $300 in it and looking towards the police officers who were standing by the driver side door.

50. Mr Winning said, “Can’t pay my way of this, can I?”.

51. As Mr Winning said that he raised his right hand, holding the $300 cash.

52. Having said that, Mr Winning folded the $300 in his right hand, closed his hand and then extended his arm out of the window in the direction of the police officers. His arm remained in that position while the conversation with the officers continued. His arm was only withdrawn back into the car when he was told he was detained for a further test and to turn his car off.

53. The police officer replied “No. No, you definitely can’t pay your way out of this.”

54. Mr Winning said “Someone’s been threatenin’ my daughter and that’s the only reason I’m drivin’.”

55. Mr Winning said “Did I hit that fuckin’ sign did I”. When the police officer responded “I think so, yeah”, Mr Winning then said “What the fuck happened [INDISTINCT]”.

56. Mr Winning said “I’m the best criminal lawyer …”.

57. There was a short exchange between Constable Davies and Mr Winning:

“Davies: So, I’m gonna get you to turn your car off.

Winning: I know, mate, I’m fuckin’. Goin’ to see me ex-wife.

Davies: Okay.

Winning: [INDISTINCT]

Davies: Do you wanna secure your car and lock it up? You wanna--

Winning: Well, what do you want me to do, run it up [INDISTINCT]--

Davies: No, no, no.

Winning: You gonna--

Davies: Not driving--

Winning: Let me go--

Davies: Anymore.

Winning: You’re not gonna lock me up, are ya?

Davies: No, we’re taking you back to the police station.

Winning: You’re a nice, you’re beautiful.

Davies: Turn the car off, you don’t need to start it again.

Winning: Well, what do you want me to do?

Davies: I want you to turn the car off--”

Outside the car

58. Mr Winning said to Senior Constable Parkin “Yeah, alright, mate, you don’t have to, call me Doug. … Don’t have to call me Mr Winning …”. At that point, Mr Winning had put his right arm around the shoulders of Senior Constable Parkin.

59. 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

60. 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.

61. 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”.

62. 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.

63. The video footage also would have revealed to the jury that Mr Winning made some deliberate movements including retrieving his passport and the $300 cash, and then separating them before holding up the $300, at the same time as saying “Can’t pay my way out this, can I?”. Further, the jury could have easily formed the view that Mr Winning’s actions in folding the cash into his right hand and extending his arm outside the door were also deliberate acts.

64. In my view, it was open for the jury to conclude that when Mr Winning said “Can’t pay my way out of this, can I?”, it was framed as a question directed to the two police officers, rather than simply a comment.

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.”

73. In my respectful view, that test has not been met in this case. It was open to the jury to conclude that Mr Winning produced the money, drew it to the attention of the police officers, whilst at the same time asking, “Can’t pay my way out of this, can I?”. That question was renewed when he asked the police officers if they wanted a “lazy quid”.

74. Further, the jury could conclude that Mr Winning was intoxicated, but not so intoxicated that he was unaware of what was taking place, and what he was doing. It was open to the jury to conclude that Mr Winning had the requisite intent namely intending that the police officers act contrary to their duty.

75. Refraining from conducting a trial by appellate court rather than a trial by jury, I am unable to conclude that there is a significant possibility that an innocent person has been convicted.

Possible misdirection – Channel 9 statements

76. During the course of the hearing an additional point was raised by the Court, relating to the directions given by the learned trial judge as to certain parts of what was said by Mr Winning in the Channel 9 interview. The point concerned whether a direction in accordance with Liberato v The Queen³⁴ was required.

77. Leave was given to address the point in writing and that was done. As a consequence leave was given to add Ground 3, contending that there was a miscarriage of justice because a Liberato direction was not given.

78. The relevant statements can be summarised as:(a)that the “lazy quid” statements were a joke;(b)he did not offer any money to withdraw any charges or to be given special treatment;(c)that what took place was a drunken, facetious, mischievous joke; and(d)that he had no intention to corrupt anyone.

79. Those statements were, of course, made after the event and out of Court. Notwithstanding that, once the interview was tendered in the prosecution case the jury could accept any statement of fact in it by Mr Winning as evidence of the truth of that fact or as evidence that may raise a reasonable doubt as to an element of the offence that the prosecution is seeking to prove beyond reasonable doubt. That is the case with respect to any exculpatory matter in that interview, just as it would be in the case of a police interview tendered in Court.³⁵

80. In the course of the summing up the learned trial judge discussed what directions might be needed with Counsel. Counsel for the defence submitted that there was a need to give “a modified Liberato Direction” in relation to the Channel 9 interview, and he also adverted to “De Silva v The Queen”. That was an evident reference to the High Court decisions in Liberato v The Queen³⁶ and De Silva v The Queen.³⁷ Counsel continued, saying that the jury “just need to be directed … how they can take that into account”, and that it was “a direct statement of intention in the defence case that they need to take into account when considering the issue of intention”.³⁸

81. In the course of summing up the learned trial judge turned to the Channel 9 interview, referring to Mr Winning’s statements that he was ashamed of his drink driving. His Honour continued:

“But he also made comments, that the prosecution rely on, that he admitted taking out the money and waving the money about. Of course, he denied that he was ever trying to offer the money to the police to let him go, as it were. So I’ll give you this direction: in the course of that Channel 9 interview, the defendant made statements which the prosecution rely on as pointing to his guilt. If you accept the statements as having been made by Mr Winning – and clearly they’ve been recorded – and if the statements are true, it is up to you to decide what weight you give them and what you think they prove. The defendant also gave answers, as I’ve indicated, which you might view as indicating his innocence. You’re entitled to have regard to those answers if you accept them and to give them whatever weight you think appropriate, bearing in mind that they have not been tested by cross-examination. In relation to the answers which the prosecution rely on as indicating guilt and those which point to innocence, it’s entirely up to you what use you make of them and what weight you give them.”

82. The point raised by the Court was whether the directions required something further, in line with the observations of Brennan J in Liberato:⁴⁰

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

83. Deane J agreed with the reasons of Brennan J. Liberato was a case where the directions had repeatedly told the jury that the overall question for them involved making a “choice” between prosecution and defence evidence. Deane J observed⁴¹ that it was insufficient to leave the jury thinking that the real question for them turned on a mere choice between the evidence of the complainant and the evidence of the accused. However, his Honour observed that directions outlining a choice between prosecution and the defence evidence may still be sufficient:⁴²

“Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a “choice” between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable.”

84. As was observed by this Court in De Silva⁴³ the circumstance addressed by both Brennan and Deane JJ was where a trial judge sums up a case to the jury as one of choice between prosecution and defence evidence. That is not the case here. The learned trial judge’s directions included these components:(a)the jury were to determine the facts of the case based on the evidence that had been placed before them;⁴⁴(b)the jury must reach their verdict on the evidence and only on the evidence, which included “the Channel 9 interview with the defendant outside the Courthouse”;⁴⁵(c)the jury could draw inferences but they must be based on facts that the jury find proved by the evidence;⁴⁶(d)the burden of proof was entirely upon the prosecution, to prove the guilt of the defendant; that burden of proof required proof of guilt beyond reasonable doubt; in turn the jury had to be satisfied beyond reasonable doubt of every element that made up the offence;⁴⁷(e)if the jury were left with a reasonable doubt, then their duty was to acquit;⁴⁸(f)proof beyond reasonable doubt was a higher standard than what was required in a civil case where matters were proved on the balance of probabilities; the onus of reaching that standard of proof lay on the prosecution;⁴⁹(g)the passage concerning the Channel 9 interview set out at paragraph [14] above;(h)when discussing the element of intent, what Mr Winning said about his intention may be looked at for the purpose of deciding what his intention was at the relevant time:⁵⁰

“Of course, whatever a person’s said about his intention may be looked at for the purpose of deciding what his intention was at the relevant time. And you’ll recall on the Channel 9 interview, he denied ever wanting to offer a bribe, as it were, to the police officers. It’s a matter for you to take into account all of that. So I’ll just repeat that:

Intention may be inferred or deduced from the circumstances in which the statements were made by the defendant and from his conduct at the time or afterwards.

Of course, whatever a person has said about his intention may be looked at for the purpose of deciding what that intention was at the relevant time.”;

(i)the prosecution case on intention relied on circumstantial evidence; to bring in a verdict based on circumstantial evidence it was necessary that guilt should not only be a rational inference that could be drawn, but it should be the only rational inference in the circumstances, and if there was any reasonable possibility consistent with innocence, it was the jury’s duty to acquit;⁵¹

(j)again, in respect of the issue of intention, that the jury had to consider what Mr Winning said “in the context of all of his behaviour and statements”;⁵²

(k)the defence case, that it was a drunken joke with no serious intention, was highlighted, together with the prosecution’s onus in that regard:⁵³

“The defence case, of course, is, “Well, have a look at him. He was a drunken idiot that night. And he was laughing and carrying on. He was making a goose of himself and he was just mucking around. At best, it was a joke – a pretty poor joke in the circumstances – but he had no serious intention whatsoever that the police officers would ever accept it. So that was not his intention. It was just part of him being silly and mucking around in a state of extreme intoxication.

So as I’ve said, ladies and gentlemen, the prosecution must prove this critical element of intention to corrupt beyond reasonable doubt. And if there’s any reasonable possibility consistent with innocence, then, it’s your duty to find the defendant not guilty, if the prosecution can’t prove that element of intention.”

(l)in the course of summarising the defence address, that the Channel 9 interview was relied upon as a statement of no intention to offer a bribe;⁵⁴ and

(m)that Counsel for the defence was correct to say that the Crown had to prove each element of the case beyond reasonable doubt, and “It is not enough if, at the end of your deliberations, you thought he’s possibly guilty, or you thought he was probably guilty or may be guilty; that’s not good enough. What is required here is the very high standard of proof beyond reasonable doubt.”

85. As can be seen the learned trial judge gave standard directions which were clear and unequivocal about the criminal onus and standard of proof, and that the jury were entitled to have regard to those parts of the Channel 9 interview where Mr Winning gave answers “indicating his innocence”. Further, they were directed that they were entitled to have regard to those answers “if you accept them”, and that they could give them whatever weight they thought appropriate bearing in mind they had not been tested by cross-examination. All of those directions were given in the context of the observation that the exculpatory statements went to intention, i.e. the denial that Mr Winning “was ever trying to offer the money to the police to let him go”.

86. The standard directions and the specific directions in relation to the Channel 9 statements are substantially the same as the directions which were given in De Silva.⁵⁵ In respect of those direction this Court said:⁵⁶

“[43] Nor do I consider that the directions that were given with respect to exculpatory answers in the record of interview were otherwise deficient. The reference to answers “indicating his innocence” was descriptive of them as exculpatory. It did not convey that the jury’s task was to determine innocence.

[44] Further, when the learned trial judge spoke of the jury accepting the answers, he evidently meant accepting that they were given. So much is clear from the preceding directions with respect to incriminatory answers in which his Honour spoke of the jury accepting them as made on the one hand, and concluding whether they were accurate and true on the other.

[45] The direction given was that if the jury accepted the exculpatory answers as having been made, they could give them whatever weight they thought appropriate, bearing in mind that there had been no cross-examination on them. The learned trial judge then concluded that part of the summing up by directing the jury that it was entirely up to them what use they made of the answers and what weight they gave to those answers. Those directions aligned with the antecedent general directions that had been given that the jury were to decide on the whole of the evidence whether the prosecution had proved the elements of each offence charged beyond reasonable doubt. The summing up as a whole thus conveyed that the jury could not convict if the appellant’s exculpatory answers left them with a reasonable doubt about the appellant’s guilt.”

87. This Court’s decision in De Silva went on appeal, and the High Court dismissed the appeal.⁵⁷ The High Court said, of a Liberato direction:⁵⁸

“The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.”

88. The High Court also explained that a Liberato direction is not required in every case:⁵⁹

“Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson, the expression "reasonable doubt" is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict.”

89. As to the directions in De Silva the High Court said:⁶⁰

“As detailed earlier, the jury were given repeated, correct directions as to the onus and standard of proof in the course of the summing-up. Nothing in the trial judge's summary of the way the respective cases were put, or in the way his Honour summed up, suggests that the jury might have been left with the impression that their verdicts turned on a choice between the complainant's evidence and the appellant's account in the interview. The focus of defence counsel's address was on the suggested incapacity of the prosecution case to support a finding of guilt beyond reasonable doubt in light of the complainant's intoxicated and emotional state.

…

In context, the trial judge's reference to answers in the interview "indicating [the appellant's] innocence" was, as the Court of Appeal held, descriptive of the answers as exculpatory. The submission, that the reference to innocence and the inclusion of the words "if you accept them" in these two sentences of the summing-up undermined the clarity of the directions on the onus and standard of proof, is overly ambitious. Defence counsel appears not to have perceived any such risk. There was no request for any redirection on the use the jury might make of the answers in the interview. Nor did defence counsel seek a Liberato direction. The failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice. The absence of an application for a direction may, however, tend against finding that that risk was present.

The summing-up made clear the necessity that the jury be satisfied beyond reasonable doubt of the complainant's reliability and credibility. The Court of Appeal did not err in concluding that, when the summing-up is read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction.”

90. In my view the same conclusion should be reached in this case. The jury were given clear, correct and unchallenged directions on the onus and standard of proof. The exculpatory statements in the Channel 9 interview were referred to as statements which the jury “might view as indicating [Mr Winning’s] innocence.” The jury were told they may take them into account on the question of intention, and if, in doing so, there was a reasonable possibility consistent with innocence then they must acquit. The summing up made clear that the jury had to be satisfied beyond reasonable doubt that Mr Winning held the requisite intention, after weighing into account his exculpatory statements. Whilst defence Counsel sought a “modified” Liberato direction, there was no request for any re-direction once the summing up had been completed.

91. In the circumstances I do not consider that the absence of a Liberato direction, modified or otherwise, resulted in a miscarriage of justice.

Conclusion

92. The grounds of appeal have not succeeded. I propose the following order:

Appeal dismissed.

93. 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.

94. BODDICE J: I agree with Morrison JA.

Footnotes

1. Exhibits 2 and 3. ↩

2. A female officer, Constable Davies. ↩

3. A male officer, Senior Constable Parkin. ↩

4. (1993) 178 CLR 193. ↩

5. (2000) 200 CLR 234. ↩

6. This ground was added by leave after a point was raised by the Court: see paragraphs [76] to [91] below. ↩

7. Exhibit 4. ↩

8. Exhibit MKC-4 to the affidavit of Mr Cooper filed 1 October 2021. Emphasis added. ↩

9. AB 15 line 43 to AB 16 line 13; emphasis added. ↩

10. Appellant’s outline paragraph 13. ↩

11. (1993) 178 CLR 193. ↩

12. Edwards at 210-211; internal citations omitted. ↩

13. Exhibits 2 and 3. ↩

14. These were the two destinations nominated, the first in the body cam footage, and the second in the Channel 9 interview.