Griffiths v The Queen B32/1994 [1994] HCATrans 113 (11 November 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1994

B e t w e e n -

SHANE PAUL GRIFFITHS

Appellant

and

THE QUEEN

Respondent

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 NOVEMBER 1994, AT 10.17 AM

Copyright in the High Court of Australia

MR S.E. HERBERT, QC: May it please the Court, I appear with my learned friend, MR A.J. GLYNN, of counsel, for the appellant. (instructed by J.A. Hodgins, Director, Legal Aid Office (Queensland))

MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR P.J. CALLAGHAN, for the Crown. (instructed by D. Field, Solicitor to the Director of Prosecutions (Queensland))

BRENNAN J: Yes, Mr Herbert.

MR HERBERT: Your Honours, the question at issue in this case is whether the jury ought to have been permitted to consider the appellant's criminal responsibility for any killing of which he was found guilty. Might we begin by taking Your Honours to page 77 of the record where the majority pose a question and then proceed to answer it, beginning at line 25:

The question is whether a bald statement that a death by shooting was an accident is enough to throw on the Crown the burden of excluding s 23. Since there was no possible means of telling how the bullet came to be discharged, it is impossible to see how the Crown could have discharged such an onus and, if the jury took a direction placing the onus as to accident on the Crown seriously, the result must have been an acquittal.

The way in which that question is posed, with all respect, is wrong. This was not a case where there was a bald statement that a death was shooting by accident. The background circumstances were not mentioned - - -

DAWSON J: What do they mean by that - bald statement by whom?

MR HERBERT: By the appellant.

DAWSON J: But he did not state anything, did he?

MR HERBERT: He did, according to the witness Clark.

DAWSON J: Well, that is the bald statement, is it?

MR HERBERT: Whether one describes it as bald or not, that is not the entire statement that he made. The statement in fact was said to be this: "It was an accident; I did not mean to do it". Their Honours appear to have answered the question which they posed, disregarding the further statement, "I did not mean to do it". This was a motiveless killing on all views and it was treated by both the Court of Appeal in the majority and by the learned judge at first instance as an unintentional or accidental killing. Now, could we take Your Honours to the evidence at - - -

BRENNAN J: It was not treated as an accidental killing, was it?

MR HERBERT: Not in that sense, no; not in a legal sense. Could we go to page 17 of the record please, Your Honours, and begin at line 1. This is His Honour's summing up. His Honour first told the jury that it would be unproductive for them to turn their minds to questions of motive, and then said:

Really, all we know about the relationship between the accused and the deceased is that it was a favourable, friendly one. I think the Crown would be quite prepared to accept that there is no apparent reason here why the accused would be in the least interested in bringing about the death of John Apps.

So, the background circumstances include the fact that the appellant and the deceased were close friends and the Crown case was to the effect that they had previously gone hiking and fishing together, and on this occasion, together, climbed a mountain near Brisbane with the deceased, John Apps, possibly having with him his father's .22 calibre rifle. Death occurred by a gunshot wound to the back of the head, occasioned by a .22 calibre bullet.

Now, could we just generally refer Your Honours to what is said next, in the next paragraph, beginning at line 29, where His Honour gives some overview of the Crown case, and then go to page 19 of the record, beginning at line 30, where His Honour succinctly sums up the Crown case again. At line 40:

Mr Costanzo referred to the evidence of the Fischers in a limited way insofar as it established the plan of the accused and John for the day of the apparent disappearance, the plan to climb the mountain and fish. Obviously, the Crown sees that as important evidence because it has the two of them together on the relevant day.

Whilst His Honour made a comment at page 20 of the record, there is a further succinct summary by His Honour beginning at line 2:

There was a lot of other evidence in the case that the accused and John were good, if not very good friends, that they spent a lot of time together and that they did a lot of things together in their spare time.

Having perhaps placed the appellant with the deceased at or about the appropriate time, the only evidence then of the proposition that the appellant caused the deceased's death was to be found in the evidence of two girls who gave evidence and their evidence is set out in the judgment of the dissenting judge, Mr Justice Fitzgerald.

The evidence of Miss Clark, which is the evidence to which we refer to raise this matter, is at page 46 of the record and the relevant passage is there set out, beginning at about line 46. She introduces the subject that the appellant and she were speaking, stopped and talked, a few jokes. The last line, at page 46:

His tone was like getting serious and then joking and then he turned around and he said to me, "I shot or I killed John. It was an accident. I didn't mean to do it.", and like, I thought he was joking. I took it as he was joking.

Those were not said to be the precise words used by the appellant but the closest this witness could come to it. "Killed or shot, couldn't remember", and the rest of it was not entirely clear either. At page 47, at line 41, she was asked:

Did he expand on that, did he say how he killed him?

The witness could not remember.

What do you say he said immediately after he said "killed him"?

She did not understand that question. Next:

He turned around and said to me that he accidentally killed him, that "I killed John but I didn't mean to do it.

He did use the word "accident" according to Miss Clark. At the top of page 8, when asked if he explained how that happened, she could not recall that either.

The case is to be considered, in our respectful submission, on that evidence and the proposition either advanced expressly or implied, in our learned friend's outline, to the effect that one should consider the other evidence in the case - presumably some invitation to consider the sufficiency of this evidence, or its weight - is no question for the Court of Appeal or for the learned judge at first instance. There is no question of weight involved in this, in our respectful submission. What is required is some evidence to which the appellant may point. We say that because that accords with all authority and, perhaps more interestingly, it accords with the decision of this Court in Doney to the effect that a Crown case may not be stopped by a trial judge even though the evidence is tenuous or vague. There cannot be, in our respectful submission, a requirement for a judge to determine whether he regards evidence as credible or sufficiently credible before permitting a defence to go to the jury.

There are some statements in Lee Chun-Cheun and in Bratty, perhaps to a different effect. In Lee Chun-Cheun - - -

TOOHEY J: Can I just interrupt you there, Mr Herbert? Are you saying that as a general statement in relation to withholding any issue from the jury?

MR HERBERT: If there is some evidence. We restrict is specifically to a question of accident, because some other defences have more requirements, and the consequence of those extra requirements has been to lead to different ways of formulating where the defence should go.

TOOHEY J: I was thinking of provocation in particular, when I asked you that question.

MR HERBERT: That is what I am thinking of too, in particular. In provocation, there is not merely one question or two, but it is a defence involving, really, multifaceted question, including whether the conduct was sufficient to provoke an ordinary person; whether the ordinary person was provoked - or whether the accused was provoked, rather - whether the response to the provocation was proportionate; whether it was in the heat of passion, or in hot blood, or whatever language is used. There are a number of requirements for provocation, and that is the reason, in our respectful submission, that in Lee Chun-Cheun language is used to this effect there must be a credible narrative of events.

In Bratty what is said is that it is not every facile mouthing of an excuse, which is sufficient. There, what was being considered were questions of diminished responsibility and automatism and we would also exclude automatism from this general proposition because, in Falconer, this Court laid down specific rules indicating the requirements before a defence of non-insane automatism might go to a jury. For example, it was held that almost inevitably, or invariably, there will needs be medical evidence to support such a claim.

The defence, and we would notionally really put that in inverted commas, of accident, is quite different. Accident goes to a fundamental question of criminal responsibility. In provocation one must first conclude, if it is charge of murder, that there has been a murder. That is the first requirement. Having concluded that, one then goes on to consider whether, in light of the fact of murder, there is evidence which can be regarded as properly supporting the defence of provocation.

That two-stage approach, in our respectful submission, is quite inappropriate to considerations of accident because so far as accident is concerned, as we said, it goes to the question of criminal responsibility at the very beginning.

DAWSON J: But, all of this really is making heavy weather of it, is it not? It is just a question of whether, on the evidence, the question arises.

MR HERBERT: Exactly.

DAWSON J: And, you cannot make the question arise by just saying it does.

MR HERBERT: The reason we perhaps have made heavy weather of it is because it seems to be suggested that for a defence, unlike one's consideration of whether a prima facie case has been established, that questions of sufficiency of evidence and the credibility of the evidence are involved. At some extreme point that may be so, but it cannot be said that that has been reached here because one cannot regard the statements to Clark in isolation. They must be seen against a background of positive evidence, and also - - -

DAWSON J: Do you restrict yourself to the statements to Clark?

MR HERBERT: No, we do not, because we say that there has - - -

DAWSON J: I mean, I would have thought that the question arose just on the bare statement of the facts to person to persons, who are friends, go out on an expedition with a rifle. One gets shot, there is no motive, in circumstances which are unexplained, one of the possibilities must surely be accident.

MR HERBERT: So we submit. Here ,Their Honours in the majority declined to even consider the background circumstances when considering the question of whether accident should have been permitted to go. They simply ignored those background circumstances and it regarded it as a case based upon a bald assertion which, with all respect, Their Honours then failed to state properly - - -

TOOHEY J: I am not clear what the submission is though, Mr Herbert. It seems to move from saying that the statement made to the young woman was sufficient to require the judge to leave that question to the jury but, in answer to Justice Dawson, you appear to be saying that even if he had not made that statement the question of accident should have been left to the jury.

MR HERBERT: We would submit that as well. The reason we deal, at this length, with the question of what was said is because that is what occupied the reasoning of the majority in particular. That is the only reason we wish to refer to it, and because its presence has precipitated argument about the nature of one's consideration of evidence of that kind, that is, out of court statements by an accused. We would have submitted, with all respect, that there is really no controversy about that in Australia any more.

TOOHEY J: What are the gradations under the Code from murder to - - -

MR HERBERT: Manslaughter.

TOOHEY J: This is manslaughter.

MR HERBERT: Yes.

TOOHEY J: And, what about criminal negligence?

MR HERBERT: Section 23 is expressed to be:

Subject to the express provisions of this Code relating to negligent acts and omissions -

TOOHEY J: Yes.

MR HERBERT: That is provided for by section 289 of the Code which, in effect, holds that a person is criminally responsible for any failure, on his or her part, when in charge of some dangerous object to exercise reasonable care and control over it. Now, that still admits - - -

TOOHEY J: And, is that an alternative verdict to manslaughter?

MR HERBERT: That is the route to manslaughter.

TOOHEY J: I see, yes.

MR HERBERT: It is a possible route. It was not used here because the learned judge simply told the jury that if they found he had killed, they must convict of manslaughter.

BRENNAN J: Mr Herbert, I could understand the approach to this matter on the basis of raising sufficient to allow a defence to go, but if one takes the fourth meaning of "accident", which Sir Garfield Barwick attributed to it in Ryan, the problem is really whether or not, on the Crown case, there was sufficient to discharge the Crown's onus of proving a voluntary killing. It is not a question of the defence raising anything, is it?

MR HERBERT: With respect, that is one of the arguments that we put, that here - - -

BRENNAN J: I had not noticed it.

MR HERBERT: I am sorry. Perhaps we have engaged our learned friend's argument too much. What we say is that the jury should have been permitted to consider whether the appellant was criminally responsible for any killing; they just were not, it is as simple as that, and we would have submitted - - -

BRENNAN J: They would have to be directed that before they could convict, they had to be satisfied beyond reasonable doubt that the accused's act causing the death was a voluntary act.

MR HERBERT: That is what we submit they should have been directed. The question for the jury was whether the accused had unlawfully killed and that question of unlawfulness involved considerations of voluntariness and accident, in the sense of suitability and so on. Now, none of that at all went to the jury. Everything, so far as criminal responsibility was concerned, was withdrawn from the jury. Indeed, His Honour directed the jury that no question of unlawfulness arose. Now we submit that this two-stage analysis is the beginning of the error. One might do that in a case of provocation, or something of that kind, but when it comes to a matter was fundamental as voluntariness or accident, there is really only one question.

BRENNAN J: That depends on which branch of section 23 you are going on. If it is the question of the first branch, we are looking at the act which causes the death, the discharge of a gun. If you are looking at the second branch, namely the causing of the death by the voluntary act, it may be that that is an event which occurs by accident and is to be approached by reference to the sufficiency of evidence to raise the question.

MR HERBERT: We adopt Your Honour's first proposition, but as to the second, in our respectful submission, that question arises anyway because it is a motiveless killing, on the Crown's case, and, as Their Honours in the majority said, it was impossible to know how the bullet came to be discharged. Could I give Your Honours the reference to His Honour's directions to the jury concerning this particular question: at page 19 of the record, between lines 10 and 30, and we would submit that the error is apparent here as well, simply by reading the passage. His Honour correctly said, we submit:

The Crown must establish, in addition, that any such killing was unlawful. That is, not authorised, justified or excused by law. I direct you that the evidence raises no issue of such authorisation, justification or excuse. If, therefore, you are satisfied, beyond reasonable doubt, that the accused killed the deceased at or about the date and place alleged.....you will find the accused guilty - - -

DAWSON J: I am going to display my ignorance about the Code but is accident a justification or excuse?

MR HERBERT: No, it is none of those things, it is a fundamental now going to criminal responsibility. That is the language of section 23:

a person is not criminally responsible for - - -

DAWSON J: Do you draw a distinction between the voluntariness of the act and accident? Apparently you do.

MR HERBERT: There is, in section 23, such a distinction.

DEANE J: Do you not need to say "non-negligent accident"?

MR HERBERT: Yes, because of 289 and the fact that death appears to be occasioned by a firearm.

DEANE J: Or, perhaps more accurately, non-criminally negligent accident.

MR HERBERT: Accident falls outside of 289, which is conceivable.

DAWSON J: Can you not conflate the two? If there is an accident, is there not ex hypothesi no voluntariness, or am I wrong?

MR HERBERT: Section 23 expresses itself this way: it has always been analysed as having two limbs - - -

DAWSON J: Yes, I know there are mysteries about it.

MR HERBERT: - - - the first limb being voluntariness, the second being accident in the usual sense, as understood in Kaporonovski, foreseeability and questions of that kind. It has always been divided up. We, perhaps, have wrongly ignored that distinction here but it does not matter, in our respectful submission. The Crown's evidence, here, was of such limited use and could lead to such very limited fact finding that it is raised by a paucity of evidence, not necessarily by the presence of particular evidence. When there is a lack of evidence then, we submit, the jury has to consider the question of criminal responsibility, viewed in terms of section 23 - just have to.

DEANE J: Do you take the approach that if the jury had been properly directed a verdict of guilty could not stand?

MR HERBERT: We have not gone that far. That is the view of the majority. That is how the majority put it. In fact, one of the reasons that they held that the defence should not have gone to the jury is because the Crown could not have succeeded if it had. They actually say that. They actually say that the Crown's inability to negative this defence, we would say the Crown's inability to prove how the shooting came about, that is the reason that Their Honours say accident should not have gone to the jury; that is the very reason. The passage is at page 77 of the record. I have mentioned it already but it begins at line 30. It is that passage:

Since there was no possible means of telling how the bullet came to be discharged, it is impossible to see how the Crown could have discharged such an onus -

If that is right there was no case, we submit.

DEANE J: That is rather ambiguous, is it not? I mean, the other way of looking at that would be that you could infer absence of non-criminal accident from the quite extraordinary conduct of your client if no criminal guilt was involved once you reach the conclusion that he had just left this friend dying or dead and then lied about his still being alive and so on.

MR HERBERT: That is not a question that was agitated previously. Indeed, His Honour gave the direction that the jury would find little use in the evidence of alleged lies. The Crown prosecutor did not rely upon them as evidence of guilt.

DEANE J: So much depends on the way the case was conducted. If you are saying the lies were not evidence of the fact that your client had done the killing, that may well be so, but if litigated at this trial had been the question, "Now if you find he did do the killing, we raise the defence that he had no criminal guilt and it was just an accident", I would have thought it would be absurd to suggest that the lies were not evidence of criminal guilt.

MR HERBERT: It is a question that we have so far found no need to consider because the issue was not litigated, as Your Honour says. For an answer immediately - - -

DEANE J: Was any direction sought at the trial about accident?

MR HERBERT: The case at the trial was that the accused was not responsible in any fashion for the death, was not associated with it.

DEANE J: Is this one of those cases where the last thing the accused wanted was a direction as to accident?

MR HERBERT: No, accident would have enormously benefited this accused.

DEANE J: But it was not asked for?

MR HERBERT: It does not appear to have been asked for, no. But no point has been taken against us at any point on that footing. We would submit that it is so fundamental it is one of those circumstances, such as in Mancini or Van Den Hoek, whether the defence asked for it or not, it had to go.

DEANE J: You say that here but one can imagine circumstances where it would be fundamental, but one can also imagine circumstances where the whole defence case was, "The Crown says that this friend killed his friend" and so on. "Do you believe that it would possibly be true?", where a direction as to accident could be the last thing the defence would want.

MR HERBERT: There may be such cases. There may be.

DEANE J: Was this one?

MR HERBERT: We submit not, because what was left here was - - -

DEANE J: I was asking you. I have got no idea how the case was conducted.

MR HERBERT: Could I explain why, Your Honour? All that was left for this accused after accident was excluded was one question; one question only: had he killed? Unless the evidence of Clark, for example, were rejected, the case admitted of no other verdict but guilty because the question of unlawfulness was entirely withdrawn. His Honour directed that if there was a killing it was unlawful and that was the end of the matter. His Honour, perhaps gave that direction because he was not particularly directed to questions of accident although events earlier in the trial should have alerted him to it, because another interview was excluded in which accident was specifically raised. It was not before this jury.

BRENNAN J: Why was it that you said earlier that accidental act, causing death, does not fall within the notion of authorisation, justification or excuse?

MR HERBERT: Because those notions are more suitable for a consideration of a case where it is first found that the offence has been committed, and one then looks to matters excusing criminal responsibility or avoiding criminal responsibility for an offence. Here, with accident, the submission is there is no offence, if it is considered.

BRENNAN J: It comes as a surprise to me to know that section 23 is not an excuse.

MR HERBERT: It does not matter to the outcome of the argument whether one characterises it as that, or not.

DAWSON J: It does a bit, because it is absolutely - there was no - categorically that there was no justification or excuse.

MR HERBERT: Just took everything away from them.

BRENNAN J: He directed them.

MR HERBERT: Now, this was a case, as we submitted earlier - Justice Dawson said, "Is not the question merely a factual one?". We would respectfully submit, it is, and it was a factual question that was easy to answer if one had regard to the evidence as the majority does not appear to have done. They simply regarded one part of the statement as being the only evidence which could raise any question of criminal responsibility, either as to voluntariness, or accident. They ignored the background. They ignored the relationship. They ignored the rest of the statement.

TOOHEY J: I am not sure what you mean by saying it was a factual question. I thought your argument went so far as to say that the judge was required to direct the jury in regard to the possibility of accident.

MR HERBERT: Well, yes - - -

TOOHEY J: Almost divorcing that from the factual background.

MR HERBERT: I am sorry, we do not do that.

TOOHEY J: You do not do that?

MR HERBERT: We do not. It is necessary for us to rely upon the factual background, not necessarily, or not exclusively on what the appellant is alleged to have said, but the lack of evidence in the Crown case as to how any killing came about.

Now, whether or not - viewing this in conventional terms - a defence is raised in a particular case, cannot be considered in a vacuum without regard to what evidence there is of guilt to begin with. And that is what was done here. When considering whether a defence is raised, one has to look at what proof there is, and it may be that evidence of a less extensive kind may raise a defence where the Crown case is particularly limited, as it was here.

TOOHEY J: Mr Herbert, before the Court of Criminal Appeal, was the argument run that even if the appellant had not made the statement that he is alleged to have made, it was still incumbent on the trial judge, given the other facts of the case, to direct the jury as to accident?

MR HERBERT: Perhaps I can answer that best, Your Honours, by referring Your Honours to page 76 of the record, in what Their Honours say, beginning at line 30. The argument that was run below, in addition to what Their Honours set out there, was that the evidence available to the Crown was of such limited probative use that the question of accident arose for that reason.

TOOHEY J: Just looking at that passage on page 76 rather suggest that you are running the second - or the argument that the statement made by the accused required the defence of accident to be put to the jury, rather than that the other facts also, of themselves, required that matter to be put to the jury.

MR HERBERT: We did not go that far below, because we did not need to. There was such positive evidence in the statement to Clark and so the argument confined itself to those matters. We did not need to go further.

TOOHEY J: But you do wish to go further now?

MR HERBERT: It does not hurt us to go further. We do not need to, but we can. We simply return to what Their Honours said again at page 77 and point out what we respectfully submit to be errors. They are correct, we respectfully submit, between lines 30 and 36, that it was:

impossible to see how the Crown could have discharged such an onus -

But we submit that at line 51 they again fell into error by saying:

A mere broad statement that a Code defence applies does not, in general, provide evidence to support it.

That may be so, but that was not the case here. It is an irrelevant proposition for judging this case.

BRENNAN J: The basic proposition, it seems to me, is that the first part of that paragraph reverses the onus of proof.

MR HERBERT: It does, yes. It just reverses it.

BRENNAN J: That is, the ultimate onus, not the evidential onus.

MR HERBERT: No, they require - - -

DAWSON J: Mr Herbert, would it be interrupting you to direct you to something else?

MR HERBERT: Could I just, in answer to Justice Brennan, refer to page 77 and that passage between lines 15 and 21:

no possible path, logically, to a positive conclusion -

"a positive conclusion" -

were such as to exonerate the appellant -

It is just all wrong, with respect. It is just all wrong. Everything about it is wrong. You do not need a positive conclusion, because the onus is on the Crown to exclude it. What is implied in that passage is that the accused must positively prove it. Next, they fall into error, we respectfully submit, when it is said that the circumstances were such as to exonerate. That was never the question. The question was whether the circumstances were enough to inculpate. What went wrong here, we respectfully submit, is that everybody assumed that there was some sort of two-stage process. One first found him guilty of manslaughter and then tried to consider if it was an accident. It is one question - - -

BRENNAN J: It can be a two-stage process, can it not? I mean you can have the situation where there is an inference drawn that the act done is a willed act, and that is the usual inference that is drawn absent something to lead to the contrary conclusion.

MR HERBERT: Yes, with respect.

BRENNAN J: But if you got a case where you cannot draw that inference, then the Crown remains liable to prove beyond reasonable doubt the voluntariness of the act which causes the death.

MR HERBERT: We adopt that.

DAWSON J: So your approach is really twofold. You say, "Look, the Crown did not even prove its case by proving voluntariness, but even if that inference could be drawn, then they did not negative accident". The passage I was wanting to direct your attention to is on page 16 in the summing up, that last paragraph on that page. What did the judge mean there?

MR HERBERT: It is easily found. Your Honour means the passage that we have underlined, beginning with the word:

Any killing of the deceased could, for argument's sake, have arisen through the careless handling of a rifle.

"Careless", so - - -

DAWSON J: He seems to be telling them that they cannot consider that.

MR HERBERT: That is not to be considered; that is the basis of guilt, but they are not to consider it. You might think that if he did kill, that is the most likely explanation, was through some careless handling of a rifle, but you need not and really should not wonder because that is speculation. If that is true, the whole thing was speculation or, as Their Honours in the majority put it, there was no possible way of telling how it came to be discharged.

GAUDRON J: That really comes to the point, does it not, Mr Herbert, that in your submission, unless one relies on consciousness of guilt evidence, there is simply insufficient evident to go to the jury on any charge?

MR HERBERT: The way this was put to the jury, yes, because His Honour - - -

GAUDRON J: But, on the facts of the case as well?

MR HERBERT: Yes, we agree, yes. Could I take Your Honours then to page 17, to some more of what His Honour said.

DEANE J: But I do not quite follow this. If he killed the deceased by careless handling of the rifle, was he not guilty of manslaughter?

MR HERBERT: He may or may not have been, if one could conclude - - -

DEANE J: Well depending on the gloss on 289.

MR HERBERT: - - - the nature of the handling, but there is no evidence in order to enable one to conclude how the weapon was handled.

DEANE J: But if you read 289, and you postulate that somebody kills another person by careless handling of a rifle, subject to what has been said in Queensland cases, it quite escapes me why 289 would not take the case out of section 23.

MR HERBERT: Because one of our submissions is, it never got to that stage; the evidence was not sufficient to permit a conclusion to that effect.

DEANE J: That is a different - I was querying your attack on what the trial judge said about "if he killed him by careless handling of the rifle", and that that was the most obvious thing that happened.

MR HERBERT: With respect, there does not appear to have been any direction of law, but rather a rumination probably, because His Honour having said it, immediately told the jury to forget about it, because it is just speculation. So His Honour is characterising the notion of concluding that death arose through careless handling as amounting to speculation.

DAWSON J: I am lost in the Code again, Mr Herbert. With common law, of course it is not any carelessness that results in death that results in manslaughter. It is criminal negligence which is a high degree. Now how does section 289 reflect that or does it not?

MR HERBERT: It has always been treated that way, is the best answer I can give.

DAWSON J: Well the answer is that there was no evidence as to the degree or negligence or carelessness.

MR HERBERT: One can say careless, but then, with respect, we would have to agree with His Honour, because one could be entering into a field of speculation as to how careless or non-careless it was, or even whether he handled it. Now, that is another matter that His Honour puts up for speculation, but the expression "I killed" is apt to have many meanings. One might terminate a relationship, for example, and the other party commits suicide, people are apt to say I killed him or her, in those circumstances. It is a matter of speculation what he meant.

DAWSON J: Let me be quite clear. Under 289 it is not just mere negligence that is sufficient to bring it into play, it has to be criminal negligence, that is negligence of a gross type.

MR HERBERT: Of a kind making the conduct such that it should be punished by the State rather than a matter of compensation. That is the way it is put in Queensland.

DAWSON J: I mean, for instance, it is common that accidents happen when people are getting through fences carrying a loaded rifle which is not on safety and, obviously, that is negligent conduct, but would that be negligent conduct which would bring you within 289?

MR HERBERT: Well, it has always been said that that is a question for a jury to decide.

DAWSON J: But it has to be negligence of a kind which attracts criminal liability?

MR HERBERT: That is the way section 289 has always been put to juries in Queensland.

DAWSON J: Yes, all right.

DEANE J: But, I understand there is a Queensland judicial gloss on 289 which more or less introduces a concept of criminal negligence into it. Is that - - -

MR HERBERT: Well, Your Honour has just answered Justice Dawson's question, with respect.

DAWSON J: His Honour is getting his information from elsewhere.

MR HERBERT: His Honour is getting his information from a more reliable source than me, although a less current source, might I say. That is, with respect, the answer to what Justice Dawson said, that there is such a gloss in Queensland and the courts of Queensland had never permitted convictions based upon what might suffice for a civil action. It has always gone further than that. Despite the language of 289 which might suggest that it is merely a question of almost civil responsibility, the way in which it is put to juries is that it requires criminal responsibility. Similarly, I suppose, to what is said in dangerous driving cases almost, going beyond mere negligence and amounting to a crime against the State.

BRENNAN J: Well, 289 is the section that is always used in the manslaughter cases - motor car manslaughter - - -

MR HERBERT: Motor car manslaughter, yes, that is how it is put. So, those are our submissions, Your Honours.

TOOHEY J: Mr Herbert, can I just ask you one other question. Looking at the judgment of the President, is it right to say that he reached his conclusion not by reference to the question of accident but rather as to whether the verdict was unsafe or unsatisfactory?

MR HERBERT: Precisely, he did not - - -

TOOHEY J: Although he starts by reciting the grounds of appeal which include the failure to leave accident to the jury, but that seems to have been left behind after that.

MR HERBERT: With respect, His Honour never returned to it.

TOOHEY J: Yes.

MR HERBERT: His Honour dealt with the question on a factual basis. There was much here to criticise in this evidence that was proffered against the appellant, and the President took the view that that criticism was such that the conviction was not a safe one.

TOOHEY J: But, for the purposes of this appeal, in the sense we need not be concerned with the reasoning behind the President's judgment?

MR HERBERT: No, the issue which we bring here was not decided by the President.

TOOHEY J: Yes, thank you.

MR HERBERT: Your Honours, before we conclude, could we hand up the outlines of argument that we gave the Court on the application for special leave. It answers some of the propositions that our learned friend advances and we do not feel any need to take the Court to that in oral argument. My learned friend agrees with that course.

GAUDRON J: Before you do that, I am looking at your ground of appeal. You only have one and, as you have correctly answered to Justice Deane some little time ago, that would lead to an order for a retrial. But is it the appropriate ground of appeal in the light of the argument you have put?

MR HERBERT: I have to say that the matter that arose in argument is not one that I - I cannot seek leave to amend that notice now, we rely upon that, and we would ask Your Honours to consider the questions raised in argument as to sufficiency.

DAWSON J: If you were to succeed, what order are you seeking?

MR HERBERT: We submit there should be no new trial, for a number of reasons: the matters advanced by the President as to the unsafeness of this conviction; the fact that the appellant had almost completed his sentence by the time - he would have been released about now if he had served his sentence.

DAWSON J: What, of the 18 months minimum sentence?

MR HERBERT: Yes, he was a 15-year-old boy when this offence was said to have occurred and he was sentenced on the basis that it was a negligent killing and that there was some apparent callousness in leaving a dead person. We give Your Honours the reasons why we submit there should be no new trial in the final paragraph of our outline. I do not wish to take it further than that, at the moment.

BRENNAN J: When you said that he was sentenced on a particular basis, where is that?

MR HERBERT: Your Honour, could we go to page 39, at line 10. He was:

16 years old, three or four years ago, you caused the death of your friend.....I am left to speculate, really, as to how the killing occurred. He died from a gunshot wound to the head from the rear. Since you had been good friends and knowing nothing more of the circumstances, I must proceed on the basis that it was the result of your negligent handing of the rifle.

That is the way in which His Honour sentenced him. It is the way in which the majority of the Court of Appeal considered the case and it is the way in which the jury were never allowed to.

BRENNAN J: Thank you, Mr Herbert.

MR HERBERT: That completes our oral submissions, if we could just hand those outlines up. Thank you, Your Honours.

BRENNAN J: Yes, Mr Byrne.

MR BYRNE: Thank you, Your Honour. If I may deal initially with the point which we believe we had to meet, and that was the basis on which the Court of Appeal gave judgment, that was whether the statement made to the witness Clark, by itself, was sufficient to give rise to the defence of accident in the circumstances. Our submission to that point - although the argument seems to have grown somewhat this morning through no fault of our learned friends or anyone - is that the mere assertion or bald assertion, as it was put below, is not of itself sufficient to require a trial judge to direct on accident within section 23.

The reasoning for that is simple: accident, under section 23, as has been always held by this Court since Kaporonovsk and recently affirmed in Van Den Bemd, is that there are two parts to what is an accident, that is, the subject and the objective parts. So that if here the claim that it was an accident can mean no more than an assertion that it was subjectively not foreseen, it does not raise, we submit, anything to show that objectively, the result was not foreseen.

BRENNAN J: That is the result. What about the act?

MR BYRNE: That is the first limb of 23, and that does not seem to have been litigated below. It seems to have been litigated totally on the second limb: accident. I will deal with the first limb shortly, but the submissions on the second limb are clear, that the mere mouthing of the words, "It was an accident", do not, by themselves, give rise to a direction under the second limb.

The first limb of 23, the voluntariness of the act as distinct from the event, the submission is that there is normally a presumption that one intends to do one's actions. That presumption is recognised by this Court in Falconer's case in the context of automatism, but there is certainly a presumption which we submit needs to be - - -

DAWSON J: You have to prove what the action was in order to apply the presumption, would you not?

MR BYRNE: Your Honour takes me to another, and a valid, point, that is to say the evidence in the present case. The state of the evidence in this case was that there had been a killing; there was a bullet in the back of the head of the deceased - - -

DAWSON J: But it does not say what act of the accused caused that.

MR BYRNE: No. All we know is that the appellant has said that he shot or killed him. The cause of death is the bullet in the back of the head.

DAWSON J: He might have stumbled - the rifle went off, for all we know.

MR BYRNE: Indeed, and that is our submission in respect to accident. There is nothing to give rise to that.

DAWSON J: In relation to the first limb, you could not presume, if that was the act, that it was intentional.

BRENNAN J: It was voluntary.

DAWSON J: It was voluntary, I am sorry.

MR BYRNE: Voluntary, yes, I am sorry. The pulling of the trigger in those circumstances, no. That is quite right.

BRENNAN J: Does not the Crown bear the onus of proving that?

MR BYRNE: It does.

BRENNAN J: Does not the Court of Criminal Appeal say the opposite?

MR BYRNE: I said to Your Honour Justice Brennan and Justice Dawson on the special leave application that it was an unfortunate choice of words.

BRENNAN J: Is it so unfortunate as to be radically wrong?

MR BYRNE: It does, with respect, appear to reverse the onus. What Their Honours, we submit, were attempting to say, is that because the evidentiary onus had not been satisfied in respect of the second limb of 23, then therefore that was not an issue which should go before the jury, but the way in which they have expressed it does seem to place more than an evidentiary onus upon an accused person.

BRENNAN J: And you seek to uphold it?

MR BYRNE: We do not seek to uphold the reasons of the Court of Appeal; we ask Your Honours to consider the matter afresh and our point on this issue is that the saying of the words, "It was an accident" is not enough.

BRENNAN J: Well then, what do you point to in order to discharge the Crown's onus of proving that the act which caused the death was voluntary?

MR BYRNE: We say there is a presumption in the absence of other evidence.

BRENNAN J: Presumption of what?

MR BYRNE: That the act was voluntary. As His Honour Justice Dawson said, it is possible that there was a slipping, a tripping and a firing of the gun, but that is not something which we submit the Crown has to anticipate and disprove; there needs to be some evidence of that - - -

BRENNAN J: In the absence of any motive and in the light of the relationship between the parties, is that possibility one which is excluded as an unreasonable possibility?

MR BYRNE: Our answer to that, as best we can do, is that there are many possible explanations as to the killing or the shooting; it could be by tripping, it could be by a negligent handling of the rifle, it could be by a firing in a direction where one did not think the other person was.

BRENNAN J: Accept that, what is the consequence?

MR BYRNE: Accept that, we would submit, there is a presumption in the absence of some evidence, and the evidence of the relationship between the parties is not enough to do away with the presumption. It does away with any presumption that this was a deliberate shooting and that has never the case here, but it does not go further, we say, Your Honour, to require the Crown to anticipate things which are not there.

TOOHEY J: But, why do you put it in terms of presumption? I mean, if you are going to mount that argument, do you not mount it in terms of there being evidence from which the jury might properly conclude that there was an unlawful killing?

MR BYRNE: Yes.

TOOHEY J: By putting it in terms of presumption, you move into a - - -

MR BYRNE: I was attempting to answer the question as to the first limb of section 23.

TOOHEY J: Yes, I appreciate that.

MR BYRNE: But, certainly the proposition is, as Your Honour put it, that the Crown case is such as to establish that it was a voluntary killing.

TOOHEY J: But if the judge directed the jury in terms of presumption in that situation, there might well be cause for complaint.

MR BYRNE: Indeed, presumption is probably the legal mechanism that one gets to the direction rather than the direction given to the jury.

BRENNAN J: Do you seek to uphold the direction at pages 16 and 17?

MR BYRNE: We submit that those directions were apposite in the absence of evidence raising the matters of either voluntariness or accident, Your Honour.

DAWSON J: In the absence of evidence raising the matter of voluntariness?

MR BYRNE: Yes.

DAWSON J: I do not understand that. The Crown - - -

MR BYRNE: I am sorry. Raising something such that the Crown had to - - -

DAWSON J: The Crown always has to prove voluntariness.

MR BYRNE: The Crown has to prove it, but what we are saying is that, absence evidence, there is a presumption in the Crown's favour.

GAUDRON J: I think it is a much more limited presumption than you are suggesting, Mr Byrne.

MR BYRNE: We accept it is limited, Your Honour.

GAUDRON J: It is where you can establish an act done apparently with awareness.

MR BYRNE: True, but where the evidence says, "I killed him", we submit that takes us sufficiently far. There is other evidence in the case as to the lies, but the difficulty with all of that evidence, as has been explained this morning, is the case was litigated on the basis that the appellant had no part in the death of the other person. The girls were mistaken as to the recollections of conversations with the appellant. So, one did not need to go into the other evidence.

BRENNAN J: If that was so, then the direction as to motive must give rise to some concern, because, was this not a case of a proved absence of motive?

MR BYRNE: Yes.

BRENNAN J: Is it not necessary, if the question is the identity of the person who caused the death, that approved absence of motive is to be taken into account?

MR BYRNE: Certainly we accept that is the case where intention is an element.

BRENNAN J: For the purpose of establishing identity only, cause of death, because it is unlikely that when there is no motive the person charged would be the killer.

MR BYRNE: Absent criminal negligence.

BRENNAN J: Yes.

MR BYRNE: They really, in the circumstances here, we submit, balance each other out, because the killing must have been one, although it was not put this way, based on criminal negligence.

BRENNAN J: Was that ever put to the jury?

MR BYRNE: No, it was not.

BRENNAN J: Any direction given in accordance with Scarth's case ?

MR BYRNE: No, Your Honour.

DEANE J: Well, Mr Byrne, how did the case go before the jury? What did the Crown say and what did the defence - were you at the trial?

MR BYRNE: I was not at trial.

DEANE J: Have you read the - - -

MR BYRNE: Yes, I have. It was run, with no disrespect to anyone, in a simplistic way. The Crown case was as set out in our written outline, paragraphs 2 to 6. The defence case was that those things were not said, and the case rested there. So, the principal issue was whether those words were said, and if they were said they were said by the trial judge to be sufficient to satisfy a jury of guilt of manslaughter.

DEANE J: Well, rather, if they were said, he was guilty of manslaughter.

MR BYRNE: The jury could be satisfied beyond reasonable doubt, and there was no justification or excuse raised by the evidence.

DEANE J: But is not what the trial judge said, effectively, "If those words were said and he did in fact kill or shoot the deceased, then I tell you he was guilty of manslaughter"?

MR BYRNE: In effect, yes, Your Honour. That was on the basis that voluntariness does not seem to have raised its head at trial at all, nor in the Court of Appeal.

DEANE J: What did counsel for the defence say about that proposition that must have been apparent as being the basis on which the case was being fought?

MR BYRNE: About the proposition of - - -

DEANE J: That if he said those things, and if he did in fact kill the deceased, he is guilty of criminal manslaughter.

MR BYRNE: I cannot answer Your Honour directly but there does not seem to have been issue taken with the directions given.

DEANE J: I am more directing my question to: was there a consensual basis on which the trial was conducted that His Honour's directions reflect?

MR BYRNE: That there was the limited issues on which the trial was conducted and I believe - I do not know if my learned friend can assist, but I believe His Honour's directions reflect the limited basis on which the trial was run.

DEANE J: What I was really asking is: what did counsel for the defence say in his final submissions in relation to that basis on which the trial was apparently conducted?

MR BYRNE: I cannot answer Your Honour unless - - -

DAWSON J: He would have said he was not there.

MR BYRNE: Presumably he would have said he was not there and he had no involvement in the shooting. It was, with respect to what has been said this morning, a case where from a tactical point of view defence counsel would not like "accident" put as an alternative, given the defence was "I was not there".

DEANE J: I mean, it could go further. It could be said to the jury, "If what the Crown says is so, then obviously he was guilty of a very serious crime and you shouldn't hold against him therefore that he said those things". Was that put? I mean, we just do not know. Of course, that is the problem in this sort of case when we reach this Court and a case has been conducted for forensic reasons in a particular way.

MR BYRNE: That is so, but the thrust at trial - and as Your Honours will see from the reasons of the Court of Appeal - was that the evidence was not sufficient to establish the unlawful killing, leaving aside voluntariness, and the unsafe ground was the principal one argued. It is described in the judgment of the majority as a subsidiary point as to whether "accident" should have been left and that - and I cannot speak for how it was argued in the Court of Appeal because I was not there - but from the judgment it appears that the accident point was limited to the statement said to have been made to the girl, Clark. In this Court other issues are raised, and for that reason I attempted, when standing up, to define our position in respect to the narrow issue and attempt as best we could to answer Your Honours' questions in relation to the wider issues.

DEANE J: Well, can I finally ask you this: if in the teeth of the way the trial was conducted the real issue had been, notwithstanding what the accused did and said, this had all been non-criminal by reason of accident, am I correct that the issue, and the only real issue, that would have had to be addressed in the Crown case was not the section 23 issues, but the section 289 issue?

MR BYRNE: Very likely, Your Honour, yes. The difficulty is and has been that there is no evidence on either side that can solve that problem. If the accused had made more detailed statements or if he had given evidence, then that certainly would have been the way in which the issue in the trial was fought.

DEANE J: Well, the question might then be, if on findings that a person has shot or killed another person and then attempted to conceal the death and proffers no explanation whatsoever and does not ask for a direction under 289 but denies the killing, it is incumbent upon the trial judge to give a direction under 289.

MR BYRNE: That, with respect, is our submission, in the face of the paucity of the evidence.

DEANE J: Well, that ultimately is the question in the case, is it not?

MR BYRNE: We submit it is, and that goes back to our narrow point. There was the option of giving evidence, there was the option of providing more material, but on the face of the material, the Crown was entitled to say to the jury, there is nothing raising section 23, or as Your Honour puts it, 289.

BRENNAN J: Why do you say there is some question as to whether it would be incumbent on that approach to give a direction on 289, if the Crown case were criminal negligence, the judge could not have escaped giving that direction, could he?

MR BYRNE: Yes, that is so.

GAUDRON J: And there is no doubt that is the only basis on which the case went forward?

MR BYRNE: Well, it never got to that point because it was simply put as an unlawful killing without categorising it as criminal negligence.

GAUDRON J: Well, is there any other basis on which it could have gone forward?

MR BYRNE: To be frank, no, but that issue has not come out because of the way it has run.

GAUDRON J: There was a plea of not guilty, was there not?

MR BYRNE: Yes, Your Honour.

GAUDRON J: Put all matters in issue.

MR BYRNE: Quite so.

GAUDRON J: Were there committal proceedings?

MR BYRNE: Undoubtedly.

GAUDRON J: And at no stage was there ever any statement or anything other than not guilty?

MR BYRNE: That is so. We have attempted to summarise the authorities in respect to evidentiary onuses in our outline. We rely on those in respect of the narrow point in relation to the mere mouthing of the word "accident" in relation to the wider points which have been raised. Those are our submissions, unless there are further matters Your Honours wish to raise.

BRENNAN J: Do you wish to say anything in particular about Ryan v The Queen?

MR BYRNE: That is - - -

BRENNAN J: The judgment of Sir Garfield Barwick.

MR BYRNE: On accident?

BRENNAN J: Yes. I am not saying you should. I just want to know whether you do wish to say anything.

MR BYRNE: Our submission, really, in respect to that, if I understand Your Honour correctly, is the definition of "accident" which has been picked up in Kaporonovski and Van Den Bemd, and we attempt to deal with that in paragraphs 16 and 17 of our written outline.

BRENNAN J: It depends on which branch of the definition. If it is the fourth branch, which in this case would be the equivalent of tripping and falling and the gun discharging, then it does not seem to me that Kaporonovski or Van Den Bemd have anything to say about that.

MR BYRNE: If it is the first branch, did Your Honour say?

BRENNAN J: The fourth.

MR BYRNE: The fourth?

BRENNAN J: Yes. The page, I think, is at page 209 of 121 CLR. His Honour says this, speaking about the four meanings of accident, in relation to the discharge of a gun. He gives as the third:

that being startled, he voluntarily but in a panic, pressed the trigger with no specific intent -

and he goes on to the fourth:

that being startled so as to move slightly off his balance, the trigger was pressed in a reflex or convulsive, unwilled movement of his hand or of its muscles.

He then goes on to deal with, amongst other things, that fourth meaning. What do you say about that, if anything?

MR BYRNE: Our position is that, absent evidence, there is a presumption.

BRENNAN J: But that is not what happened.

MR BYRNE: That is so. The act was voluntary unless there was some evidence to give rise to that or one of the other heads under that act.

BRENNAN J: One further question: if the Court should be against you in your submissions, what, in your submission, is the appropriate order?

MR BYRNE: We accept that there should be no new trial.

BRENNAN J: Do you wish to put that on any particular basis, as a matter of discretion or as a matter of law?

MR BYRNE: As a matter of discretion, given the age of the person and the amount of time which has already been served, pending appeal. He is on bail, as Your Honours would be aware.

DEANE J: As a matter of this Court's discretion or as a matter of you telling us that the Attorney's discretion is that there will be no new trial and, therefore, we should not order it?

MR BYRNE: I could certainly do the latter but what I am submitting is for the former. Thank you, Your Honours.

BRENNAN J: Yes, Mr Herbert.

MR HERBERT: Could we give Your Honours this reference - page 67 of the record between lines 30 and 40 - which perhaps adds something to what the learned presiding judge said about proved absence of motive, where the majority took the view that the probabilities were that any killing was accidental and said so at that passage.

Finally, my learned friend refers to a presumption that one's actions are voluntary. That may be so. We do not need to argue the contrary. The problem here is that the Crown case was insufficient to prove any act. One cannot identify any act to which one then applies a presumption. That is the submission in reply, Your Honours.

BRENNAN J: Thank you, Mr Herbert. The Court will consider its decision in this matter and will adjourn until 10.15 on Tuesday next.

AT 11.27 AM THE MATTER WAS ADJOURNED SINE DIE