Green v The Queen P32/1995 [1996] HCATrans 303 (9 August 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P32 of 1995

B e t w e e n -

KEN GREEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

TOOHEY J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1996, AT 1.11 PM

Copyright in the High Court of Australia

MR L.W. ROBERTS-SMITH, QC: May it please the Court, with MR B.G. DEVEREAUX I appear for the applicant. (instructed by A.V. Shelley, Aboriginal Legal Services of Western Australia)

MS S.M. DEANE, QC: May it please the Court, with MS C.A. O'BRIEN I appear for the respondent. (instructed by J. McKechnie QC, Director of Public Prosecutions (Western Australia))

TOOHEY J: Yes, thank you. Mr Roberts-Smith, we think we will hear from Ms Deane first, thank you.

MR ROBERTS-SMITH: If your Honours please.

TOOHEY J: Ms Deane, can we hear from you as to why special leave to appeal should not be granted in this matter, the Court of Criminal Appeal having held in respect of one of the charges that the trial judge had wrongly withdrawn from the jury the quite fundamental question of whether the words used constituted a threat to kill and in the case of the third of the charges that there had been a wrong refusal to allow evidence as to the effect of a choke hold on the applicant. In those circumstances, we would like to hear from you as to why special leave to appeal should not be granted.

MS DEANE: Certainly, your Honours. In relation to the first matter, that is, the fact that his Honour did not - - -

GUMMOW J: Perhaps while you are doing that, is the applicant still in custody?

MS DEANE: No, I am informed by my learned friends, your Honours, that the applicant is not in custody at the moment.

TOOHEY J: Does that mean that he is on parole or that the sentence itself has expired?

MS DEANE: It means, your Honour, he is on parole, I understand, yes.

TOOHEY J: The papers suggest, without making it very clear, that he was probably sentenced at about June 1994 to two years imprisonment or shortly thereafter.

MS DEANE: That is correct, your Honours, yes.

TOOHEY J: Has sentence not - - -

MS DEANE: Your Honour, I am informed that the applicant was released on 26 March of this year, I understand on parole.

TOOHEY J: You have not really answered our question as to when the head sentence expires or had expired, if it has.

MS DEANE: Your Honour, that will be on 24 November of this year.

TOOHEY J: I see, thank you.

MS DEANE: Your Honours, as to the first issue raised by the applicant in this matter, it was rightly conceded, so the court below found by counsel for the respondent, that his Honour, the learned trial judge, was incorrect at law in not allowing the elements of the charge constituting a threat to kill to go to the jury. The first element, that is, whether the words were used or not, of course, was left for the jury for their determination, but his Honour indicated to them or directed them that were they so to find that those words were used then they constituted a threat to kill. The respondent conceded that that was incorrect at law, but their Honours in the court below then went on to examine whether or not, in all of the circumstances that prevailed at the trial, his Honour's failure to leave an element to the jury for their consideration constituted a substantial miscarriage of justice.

TOOHEY J: When you say "in all the circumstances", what the Court of Criminal Appeal seems to have said is that the question of whether the words were used was left to the jury - - -

MS DEANE: Yes.

TOOHEY J: - - - that whether they constituted a threat to kill was not a question left to the jury - it should have been - but that since the words used were not part of a stream of abuse but were used in response to a question from the police officer as to the whereabouts of a particular individual that there was no reason why the words should not be taken literally. Is that really the answer that you offer us?

MS DEANE: Well, that is part of the answer, your Honours, but there is, with respect, a little more and, in our submission, it is rather significant in this particular case because the applicant gave evidence at his trial and in evidence said that, in fact, he was - and I am paraphrasing - in a state of agitation having had contact with the police officers and he commenced to say certain words to them and that appears in the top of page 31 of the appeal book at about 1460. His Honour Mr Justice Ipp in his judgment says:

This appears from his evidence that he said to Edmonson -

who was one of the police officers -

"Why don't you just leave us alone, otherwise I'll" -

and then his explanation for why he did not complete that particular sentence was that he apprehended or understood that he:

"would have been making a threat" -

and for that very reason he desisted with the conversation or the language that he was addressing towards the police officers. So really, your Honours, it is, in fact, a combination of those two matters, not simply that the words were said in a particular context, namely he was answering a direct question or remark in a situation of confrontation, but additionally the applicant himself conceded that were he to have made remarks of that sort in those circumstances, he would have been making a threat to kill.

McHUGH J: He may have said that but the jury obviously rejected his evidence on this point but, even accepting the police evidence, the jury may have come to a different conclusion about it. Here is a fundamental aspect of the case not left to the jury. This man has been in gaol for an offence which has not been tried according to law and if that is not a miscarriage of justice, Ms Deane, I do not know what is. I must say, I cannot really see the basis upon which the Court of Criminal Appeal in this case applied the proviso and when you add to that the rejection of the expert evidence it really is a case of the court trying the case rather than the jury.

MS DEANE: Your Honours, the court below very carefully considered the arguments that were put to them and it would seem, in our submission, that had it not been, perhaps, for the rather unusual situation that arose in the course of the trial, namely the way in which the evidence came before the jury, the court below may have allowed the appeal. His Honour, Mr Justice Ipp clearly and, in our submission, correctly, along with the other two members of the court, were very much persuaded by the fact that not only were the words said in a particular situation that, with respect, could hardly give rise to any other interpretation but additionally, when the applicant himself concedes by inference that were those words said, a matter that was, in fact, left to the jury, they would have constituted a threat. The difficulty is that there would - - -

TOOHEY J: That is a strange proposition, if I may say so, that the applicant somehow appreciated that if he used the words he was committing a criminal offence and therefore he desisted from them and because he desisted from them he must be taken to have understood that he was in the process of making a threat but the real proposition is that put to you by Justice McHugh, is it not? The Court of Criminal Appeal, in effect, decided the question which clearly turned upon the evidence that was given, how it was given, what view the jury formed of the applicant and the evidence of the other people involved. It is taking a very big step for the Court of Criminal Appeal, in those circumstances, to say that there could be no miscarriage of justice.

GUMMOW J: The phrase, after all, in Wilde, is "would inevitably have convicted". They are pretty strong words.

MS DEANE: Yes, your Honour, they are.

GUMMOW J: And those pretty strong words appear on page 31 and then we get the passage at page 32 which does not really seem cogently compelling, to my mind.

MS DEANE: At page 32 of the appeal book, your Honour?

GUMMOW J: Yes.

MS DEANE: Yes. Perhaps I should make myself clear, your Honours. I did not mean to suggest a little earlier as clearly as perhaps it came across, that the applicant was necessarily cognisant of the fact that he was committing a criminal offence perhaps in the sense that a legally trained person might use that phrase, but simply that he was, by inference, recognising the fact that were he to go on and continue making or using the words that he intended to use, those words, if used, would have constituted a threat and, indeed, the very nature of the language makes sense of that.

It was clearly a matter that did trouble their Honours and had it not been for the matters that I have adverted to, it may well be that they would have come to the view that there had been a substantial miscarriage of justice but, rather, they then looked at the issue of whether or not, in those circumstances, the applicant had lost a chance open to him of being acquitted. When one looks at what he said to a point the reason why he did not continue to say it and then what the jury necessarily found, one can see, in our respectful submission, why their Honours then came to the view that he had not lost such an opportunity.

TOOHEY J: Is that what you wish to say to us about the first charge?

MS DEANE: Yes, your Honours. I do not believe really, given the fact that it is not a particularly lengthy judgment and, although a very important point, it is a short one, I cannot add substantially to that.

In relation to the second matter, your Honours, our proposition is simply this. The jury had before them a very graphic description from the applicant himself as to his physical reaction when he was allegedly held in the choke hold by one of the police officers. That, of course, was denied by the police officer in the sense that although he applied what was termed, unfortunately perhaps, a choke hold, he did not, he says, come into contact with the applicant's neck in the way that the applicant described.

In our submission, had the expert evidence been allowed to be called and, indeed, their Honours in the court below were of the view that it was relevant and admissible, that at the end of the day, had it been called, in our submission, it would not have assisted the applicant at all because in order for either the defence of self-defence or the defence of an unwilled act pursuant to section 23 of the Code of this State to operate to the advantage of the applicant, the jury would have necessarily have to have found as a precondition that the applicant was in a choke hold. They did not find that and that is clear and, indeed, obvious from the fact that they did not acquit him having been advised by his Honour in his direction or, more particularly, I think, his redirection at the request of the applicant's counsel that were they to find that he was being choked, in effect, that was the end of the matter.

Now, that is not to say, of course, that his Honour was not in error in leaving a section 23 defence to the jury for their consideration, but they, quite clearly, having found on their verdict that the applicant was not being choked, in our submission, nothing would have been achieved practically had that defence been left to the jury by his Honour in his direction.

TOOHEY J: The jury might well have thought that a plea of self-defence was not on in the circumstances, but it might have been a different matter as to whether, having heard the evidence from the proposed witness, whether in fact the actions of the applicant were willed actions or not. The two are not synonymous.

MS DEANE: No, your Honour, although the applicant, in his evidence, did make it quite plain that he was losing control, as it were, when he was held in this particular hold by the police officer. He spoke of being cold and feeling as though he was going to be killed and, indeed, feeling physically most unwell and, I think, things going dark. His Honour took the view, it would seem, that with that evidence before a jury, as well as, perhaps, a jury understanding, to some extent, how one would feel when one is deprived of air in that kind of situation, that one would necessarily be likely to thrash about in a rather uncontrolled fashion.

His Honour took the view that the jury did not really require any expert evidence on what he took to be something within relatively common knowledge. But the fact is, your Honours, that his Honour the trial judge made it very plain that if there was any doubt, at all, in the jury's mind, in effect, that the applicant was being choked, then that was the end of the matter and the jury were to acquit. So, it really all hinged on a finding by the jury as to whether the applicant was being choked. And, without being able to make such a finding, in our submission, a question, or a defence under section 23, as to unwilled acts, simply could not operate to the applicant's advantage.

If your Honours please, the points we wish to make are short and are outlined in the submissions. I really have spoken to them, I think, in a way that would not assist the Court any further if I proceeded. So, if the Court please, they are our submissions.

TOOHEY J: Yes, thank you. Mr Roberts-Smith, we need not trouble you.

There will be a grant of special leave in respect of the two convictions, the subject of the application for special leave to appeal.

That concludes the business of the Court this morning. We will now adjourn.

AT 1.28 PM THE MATTER WAS CONCLUDED