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Douglas Winning refused High Court leave to appeal against corruption conviction

The facts

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 and found the driver was local solicitor Douglas “call me Doug” Winning.

A true man of style, Winning was wearing only a pair of shorts. His vehicle had sustained damage on the bonnet and a front tyre. When asked that he had been drinking, Winning nominated the amount as “a bottle of rum”, explaining that he had had a sleep since finishing it. He was slurring his words. He twice said “You’re not going to pinch me”.

One of the officers said she was going to administer a roadside breath test. Winning was in the car holding his passport and $300 in cash, made up of six $50 notes. At the conclusion of the roadside breath test, 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?”.

One police officer responded, “No. No, you definitely can’t pay your way out of this”. The other responded “No”.

After the officers’ responses, 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.

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.

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

As 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, Winning still had the $300 cash in his hand. Then followed this exchange:

“Officer 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.
Officer Parkin: Ok. Alright.
Winning: You wa-, you wanna lazy quid?
Officer Parkin: No, no, no.
Winning: Give you a lazy quid

Officer Davies: No, no, no. Parkin: No, no, no. No, not at all. Come on, Winning, we’ll get you in the back of the car. Come on, sir, this way.”

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.

Winning was subsequently charged with drink driving and 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.

Winning was later interviewed by a Channel 9 journalist, and the interview, in which he claimed he was joking about bribing the officers and denied offering them money to withdraw any charges despite the police footage which recorded it on video.

Winning pleaded guilty to drink driving. After a trial, Winning was convicted of official corruption.

Relevant Law

Section 87 of the Criminal Code 1899  relevantly provides that:

87 Official corruption
(1) Any person who—
(b) corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the public service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office;
is guilty of a crime, and is liable to imprisonment for 7 years, and to be fined at the discretion of the court.

Section 28(2) of the Criminal Code relevantly provides that the provisions of section 27 of the Criminal Code that provide the defence of insanity:

“…do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.”

Section 28(3) of the Criminal Code relevantly provides that:

“When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.”

In R v Miller [2021] QCA 126 at [18], 33 the Court of Appeal stated:

“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.”

As is well known, before any appeal to the High Court can be dealt with on the merits, there is a need to apply for and then obtain the special leave of one or more High Court judges.

The oldest leading authority of the test for special leave is the decision of Griffiths CJ in Johansen v. City Mutual Life Assurance Society Ltd [1904] 12 C.L.R. 186, at p. 188, later quoted and applied in Wanstall v Burke [1925] St R Qd 295:

“The practice we have always laid down… [is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, or involving some important questions of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.”

Court of Appeal’s decision

Winning appealed his conviction for official corruption. The grounds of appeal were:

(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 Queen or Zoneff v The Queen 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 De Silva v The Queen (2019) 268 CLR 57 about the use of Winning’s statements in the Channel 9 interview.

The Court of Appeal rejected Winning’s complaints concerning the judge not taking directions to juries about lies told by an accused use or his statements in the Channel 9 interview, or that the verdict was unreasonable.

Morrison JA accepted that the following evidence instances of Winning’s inappropriate behaviour which no doubt would have enamored him to female jurors suggested that he was intoxicated:

(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”

However, Morrison JA concluded that the video footage also would have revealed to the jury that 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.

As a result, the appeal was dismissed.

Despite Morrison JA’s detailed and cogent judgment, Winning subsequently sought to appeal to the High Court.

High Court’s decision

The full decision of Justices Stephen Gageler and S.H.P. Steward refusing leave to appeal was as follows:

1 The applicant seeks special leave to appeal from a unanimous decision of the Court of Appeal of the Supreme Court of Queensland (Morrison and Mullins JJA and Boddice J) to dismiss an appeal from the decision of the trial judge (Judge Chowdhury).
2 There is no reason to doubt the decision of the Court of Appeal. The application otherwise raises no question of principle of general importance and has insufficient prospects of success to warrant a grant of special leave.
3 Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.J. Gageler
S.H.P. Steward
16 March 2022

Conclusion

The appeals process now having been exhausted, Winning’s official corruption conviction will stand.  Such conduct strikes at the heart of the administration of law and justice, and arguably provides “instant demonstration of unfitness” to remain a lawyer.

This is not the first time Douglas John Winning has found himself in trouble, as we pointed out last year. It does appear that this is likely to be the last time Douglas “call me Doug” Winning finds himself in strife as a lawyer.

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