Cutter v The Queen P63/1996 [1997] HCATrans 101 (14 March 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P63 of 1996

B e t w e e n -

CLIFTON JAMES CUTTER

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

DAWSON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 MARCH 1997, AT 11.27 AM

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 appellant. (instructed by the Aboriginal Legal Service of WA (Inc))

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

BRENNAN CJ: Thank you. Mr Roberts-Smith.

MR ROBERTS-SMITH: Your Honours are aware of the facts of the matter. Suffice to say that in the space of 30 or so short minutes in the far west outback town of Wiluna one night in August 1994, the appellant, Mr Clifton Cutter, then somewhat intoxicated and a highly upset and agitated Aborigine found himself in a situation of confrontation with police officers which, over that short period of time, dramatically escalated from a situation in which, at most, he was likely to be charged with obstructing police officers to one in which he in fact stabbed one of the police officers and was ultimately convicted of attempting to murder that police officer.

Your Honours will have seen from our written submissions that it is our contention that although two of the judges in the majority in the Court of Criminal Appeal of Western Australia correctly articulated the guiding principle for the appeal before them, namely, that the Court, and indeed the trial judge, could not convict of that charge unless the evidence established beyond reasonable doubt that at the time he stabbed the police officer, Mr Cutter then had an actual intent to kill.

Their Honours, in our submission, in reality, approached the case on quite a different basis and, indeed, one which, in our submission, quite undermined that fundamental principle which they had articulated. The learned trial judge at page 72 of the appeal book, about line 10, found that Mr Cutter had drunk a considerable amount of intoxicating liquor and was affected to an extent by it. His Honour found that it made Mr Cutter more excitable and contributed to his behaviour.

Your Honours, at this point, might I foreshadow a change to the orders which we have indicated we would seek, should we succeed in this appeal? Mr Cutter is, as your Honours will have seen from the chronology, was convicted and sentenced on 15 June 1995. He was sentenced to a term of imprisonment for nine years and nine months based on a head sentence of 10 years, but with an allowance of three months for time spent in custody. Currently, his earliest date of release on parole is 13 December 1999.

As at the date of the offence, 5 August 1994, the maximum statutory penalty for unlawful wounding under section 301 of the Criminal Code Western Australia, was imprisonment for three years. There was, indeed, an amendment subsequently increasing that to five years which came into effect on 19 January 1995. The point that we make here, of course, is that if Mr Cutter had indeed been convicted at trial of unlawful wounding, as is our contention he ought to have been, then the maximum sentence to which he could then have been sentenced was three years imprisonment.

His Honour, in fact, made Mr Cutter eligible for parole and obviously, in our submission, then a parole eligibility order would have been expected had he been sentenced on the basis of a maximum of three years.

DAWSON J: How long has he been in prison?

MR ROBERTS-SMITH: He has been in prison for one year nine months. In short, your Honour, that is nine months longer than he would have been released had he been sentenced to the statutory maximum of three years imprisonment with an order for eligibility for parole, because the statutory parole regime would require him to serve one-third, 12 months, then be released on parole for another third, a further 12 months, and then the balance of the sentence would have been remitted by operation of the statute and, your Honours, it is for those reasons and in that context that we foreshadow that if we do succeed on this appeal we would be asking this Court to substitute a conviction for unlawful wounding and then rather than remit the matter for sentence elsewhere we would ask your Honours to sentence on the basis that the statutory maximum was three years, take it as the appropriate head sentence, make the allowance that the learned trial judge did for time in custody and reduce it by three months and impose a sentence of two years and nine months.

KIRBY J: That does not seem to be conceded by the Crown, who simply ask us to send the matter back to the Court of Criminal Appeal, which is what would ordinarily be done.

MR ROBERTS-SMITH: Yes, that is so and I can tell your Honours that we have discussed this with my learned friends this morning and I understand that they would have no objection to the course we proposed should your Honours get to that point, but no doubt my learned friend can confirm that in due course. The end result of all of that, of course, as your Honours would well appreciate, should your Honours take that course, would be that Mr Cutter would be immediately eligible for release.

KIRBY J: Would there be any factors that the Court of Criminal Appeal would take into account on any of the steps that you have just referred to of the seriousness of this particular offence, being an attack on a public law officer?

MR ROBERTS-SMITH: That is why the suggestion we would make in relation to the sentence is that it be dealt with on the basis that the statutory maximum of three years should be taken appropriately or could be taken appropriately as the effective head sentence.

KIRBY J: There is no variation allowed under the scheme for - - -

MR ROBERTS-SMITH: It is simply unlawful wounding.

KIRBY J: Because in objective terms, whichever is the offence, this is a serious offence, being an attack on a person who was only doing his duty.

MR ROBERTS-SMITH: We concede that. That is indeed why we put the matter the way we do.

DAWSON J: If you were to succeed, what would you suggest the Court do?

MR ROBERTS-SMITH: If we were to succeed, we would be asking for orders that the conviction be quashed, a conviction of unlawful wounding be substituted, that the sentence be set aside and that a sentence of two years, nine months be substituted with eligibility for parole. Those would be the order we would seek, your Honour.

BRENNAN CJ: That, as you understand it, by consent if we should reach that point.

MR ROBERTS-SMITH: Should your Honours get to that point. Your Honours, the learned trial judge found that Mr Cutter formed an intent to stab as opposed as an intent to kill "one of the police officers when the opportunity arose", and he formed that intent whilst he was in the cage of the police vehicle on his way to the police station. That appears at page 73, line 10. That particular finding later became an important finding of fact for his Honour Justice Ipp on the appeal, as is apparent from his Honour's observations at page 96, lines 20 to 25. It is, of course, not a fact which was otherwise directly established, it was a fact which had to be found by way of inference and was in that sense an intermediate fact within the meaning of Shepherd's Case.

The trial judge's subsequent finding that when he did in fact Constable Kirwan while the police officers with him and trying to pull him out of the police vehicle, Mr Cutter then actually had a specific intent to kill, was based on that finding of intermediate fact, that is that in the police vehicle he formed an intent to stab, and two other factors. First, that the area in which the knife penetrated was a vital area, that is, as it was put by his Honour, where to stab a person was "likely to result in death" - page 73, line 15 - and, indeed, that Mr Cutter was aware of that - and his Honour got that from Mr Cutter's answers to the police. Effectively, the whole of that interview is set out in our written submissions.

Secondly, that indeed Mr Cutter "aimed at the place where the knife penetrated", page 73, lines 40 to 45. It is our submission, for the reasons which have already been canvassed essentially in our written submissions, that none of those findings were the only reasonable inferences open on the evidence. The facts are set out at paragraph 3, pages 2 to 3 of our written submissions, and I will not take your Honours through those. But could I take your Honours, first, to page 7 of those submissions, in paragraph 8, because that raises immediately one of the critical issues in the approach to the evidence in this trial and that is - which goes to what inferences, if any, could or should have been drawn from Mr Cutter's answers to the police officers.

The dissenting judge in the court below, Justice Rowland, took the view really that many of Mr Cutter's responses would not necessarily relate to his views at the time of the interview and, indeed, that they were otherwise unsatisfactory in the sense that there was an area - a degree of uncertainty about exactly what he was admitting to, to the extent that they were relied upon as admissions. We give the references there and, importantly, to the development of our appeal, we draw your Honours' attention to the fact that in his judgment, which, of course, was the majority judgment in the court below, Justice Ipp expressly accepted Justice Rowland's view of the way in which those answers ought to be dealt with, and he says so at page 96, lines 14 to 21.

Effectively, what his Honour was there saying - and we submit, with respect, that was indeed the appropriate way in which to approach that evidence, the evidence of the interview with the police officers, was that, really, in looking at the question of intent, Mr Cutter's answers to the police officers had to be put to one side because they were so uncertain, because, in context, the answers - and these are my words - would be too unsafe to rely upon to found any conclusion as to Mr Cutter's intent as at the time of stabbing.

KIRBY J: Yes, but he was asked, subsequently, about what the result would be if he lunged at a person and stabbed them in the neck, and he said that would be to kill them. So, this, it seems to me, is the element that you have to overcome; that because intent is a matter of inference, unless there is some confession of some kind, all you can look at is the practicalities. Here you have a person who happens to have knife, though for reasons that were explained, who lunges at a person in a very vital area, who is trying to get him to do what he had to do. The real issue is, is the only real inference available that - acknowledged by your client - if you do that, you are going to kill the person, or there is a real risk that you will kill them.

MR ROBERTS-SMITH: With respect, your Honour, the only real question is one step beyond that, and it is whether, from those answers and the other evidence, the only real inference, the only reasonable inference, to the exclusion of all others, which is open on that evidence, is that when he did so, he then had an actual intent to kill.

KIRBY J: Yes, but because you have got to work out the intent by inference and, in this case, we have no direct evidence about it, is it not reasonable to infer from such an extremely dangerous thing, and allied with the statement by your client subsequently that he recognised that that would have a possible effect of killing, that that was what he intended to do at that moment.

MR ROBERTS-SMITH: It is evidence which, on a broad view, one may take into account - I say on a broad view because the submission which I am presently in the process of putting to your Honours is that, for reasons which were expressed by Justice Rowland and were agreed to by Justice Ipp, it was inappropriate in the particular circumstances of this case to place any real reliance or, indeed, any reliance at all, in our submission, on the answers given by Mr Cutter to the police officers, and that is in fact the way Justice Ipp actually approached it. He put that aside. I will come back to the point I was about to make in just a minute, but perhaps if I take your Honours to that specific reference at page 96 of the appeal book. At line 15, Justice Ipp says:

I accept, as Rowland J has pointed out, that the comments made by the applicant to the police concerning the possibility that his actions could have killed Constable Kirwan are capable of being construed as an acceptance by the applicant, after the event, that the consequences of his conduct could have led to the death of the constable. Accordingly, the essential question is: what inferences are to be drawn from the fact that the applicant intended to stab the officer, and did so at the time, in the manner and in the place in question.

So, in our submission, his Honour's approach there was, with respect, entirely correct effectively because Justice Kennedy agreed with the reasons for judgment of Justice Ipp as well as making some brief observations of his Honour's own. Effectively that particular sentiment is the view of all three judges.

McHUGH J: But is it correct? What ground is there for supposing that the accused's knowledge at the time of the interview was any better than at the time of the action in respect of what the effect of his action might be?

MR ROBERTS-SMITH: One needs to look, of course, at the circumstances on both occasions to begin with and the question is twofold perhaps: did he have an actual knowledge or awareness of that at the time and, secondly, if it was something of which he was generally aware, because most people would be generally aware, then the real question is, in our submission, is that something to which he actually adverted? We, of course, can all be aware of something without thinking of it at a particular time, without it presenting to our mind, and that is why we say one has to very importantly look at the circumstances in which Cutter was when he actually stabbed Constable Kirwan in the back of the police van at night with his mental state as it was, slightly or somewhat intoxicated and so on. I will come to those issues a bit later, but that perhaps is sufficient to at least respond immediately to your Honour's question about that. That is the first point.

McHUGH J: I do not believe that his answer adds anything to the case one way or the other. What it does, it just simply, to my mind, really confirms what one would infer generally as you said and just about anybody that is sane knows that if you are going to stab somebody in the area of the upper chest with a knife, you could kill them.

MR ROBERTS-SMITH: Quite so.

DAWSON J: But the thing that is - maybe you had better reply to that.

MR ROBERTS-SMITH: Thank you, your Honour. Yes, but the critical issue still is, whilst just about anybody may know that and we may well say pretty well everybody ought to know that, but the question still is, did this man know that at that time or is that something which after these events, when he knows what has happened, because the interview is two days later - he knows what has happened to the police officer and, of course, it is being put to him in questions by the interviewing police officers. So he knows what the position is, what the consequence was and, of course, then presumably two days later he is sober and he has had time to sit in the cells and reflect on what has happened, his state of conscious awareness of possible consequences at that point one perhaps would think as a matter of common sense would, indeed, be likely to have been far better than his state of conscious awareness of possibilities and outcomes when he was in the back of the police van in the circumstances in which he was.

McHUGH J: Unless the presence of liquor - him being affected by liquor - seems to me to be against you rather than in favour of you, because it is the fact that he is affected by liquor that may loosen his inhibitions and his control of himself, and then he might do things when he is affected by liquor that he might not do otherwise. There is no suggestion that he was so affected with the liquor that he was incapable of forming an intent to kill.

MR ROBERTS-SMITH: No; that was never suggested, and indeed, the learned trial judge correctly referred to section 28 of the Criminal Code which deals with the question of intoxication in relation to intention and stipulates simply that intoxication is a factor to be taken into account in considering whether or not a person in fact formed a specific intent. That is the basis upon which we put the matter. We do not suggest for one moment that he was incapable of forming an intent. What we do say is that certainly his inhibitions may well have been lower; they probably were. He was irritated, angry, upset, agitated - all of that is in the evidence and particularly in the evidence of Constable Johnstone.

McHUGH J: I tell you what is bothering me about your case. It seems to me at the moment that the evidence irresistibly points to the fact that this was premeditated - that he took the knife out; he held it behind his back as the police officer got in and that he intended to stab him, and he must have intended at the very least to inflict grievous bodily harm, and I do not see for the moment why should not also draw the inference beyond a reasonable doubt that he intended to kill him; particularly having regard to the fact that he disliked police, disliked being arrested, and his inhibitions are loosened by alcohol.

MR ROBERTS-SMITH: I well understand what your Honour is saying but, of course, that is the nub of the appeal.

McHUGH J: That is the whole point. Can you suggest a reasonable hypothesis that is consistent with the facts which would explain his conduct?

MR ROBERTS-SMITH: If one looks, for example, if one does look to what he said to the police officers, he said he took the knife out of the pouch which was in his back pocket, and I pause to interpolate there that at one point very early in his judgment, Justice Ipp seems to take the view that Mr Cutter deliberately hid the knife at his back between the time he went from the hotel in Wiluna to getting into the police van, and that he then, in the police van, opened it and at that point formed an intention to stab. I simply mention that to perhaps point out the fallacy of reasoning from the limited facts which were before the court and before the Court of Criminal Appeal.

We would certainly say that there was no basis upon which an inference beyond reasonable doubt could be drawn from what Mr Cutter said to the police, which was all that was available in this respect, to draw the inference to that degree that he deliberately concealed the knife from the police officers before he got into the van. The fact of the matter simply was, as appears from Constable Johnstone's evidence of where he found the pouch later, that Mr Cutter simply had this knife folded in a pouch in his right, rear pocket. That is where it was and clearly the police simply did not see it when they put him in the van. But, there is no basis, in our submission, to draw an inference that he deliberately concealed it. Yet, Justice Ipp seems to do that as a starting point. Can I respond to your Honour and go on from there - - -

McHUGH J: I would start later than that. Assume in your favour that it was in his pocket in - - -

MR ROBERTS-SMITH: We then get to the stage where to deal with your Honour's point, one has to look to what he told the police officers. I reiterate without going over again what I have already said about the circumstances in which that interview was held.

KIRBY J: This is because he did not favour the court at trial with his own version.

MR ROBERTS-SMITH: Which, of course, he is not obliged - - -

KIRBY J: He did not go into evidence and say that this is the least, the last thing - I know he did not have to - - -

MR ROBERTS-SMITH: Yes.

KIRBY J: We have got to try and reconstruct this without the statement by the very person who might have been best able to say what his intent was.

MR ROBERTS-SMITH: Yes, but somebody who was entitled to proceed on the basis that he had spoken to the police officers and answered their questions. Whether satisfactorily or not, there was an account from him. It was not a situation, for example, where he had said nothing to the police and had not given evidence.

DAWSON J: The thing that strikes me, and I know I am diverting you from putting the situation that Justice McHugh was asking you, but the thing that strikes you immediately reading that record of interview is they did not ask him what his intention was.

MR ROBERTS-SMITH: Exactly.

DAWSON J: What you get from that is they got an answer which they did not expect when asked what might happen to kill him. Up until that stage the thought of attempted murder had not entered the interviewer's head, and thereafter it did, and they sought not to ask the question because it might upset their then formed intention to charge him with attempted murder. Now, I may be quite wrong about that but I must confess that is the impression I get.

MR ROBERTS-SMITH: It is certainly, with respect, your Honour, an impression we would submit is well open - - -

DAWSON J: Now, you had better answer Justice McHugh's question as to what is the hypothesis consistent with this.

MR ROBERTS-SMITH: Perhaps if I go directly to the hypothesis and get that out of the way and come back to these supportive matters. We would submit that there are a number of hypotheses open on the evidence. First of all, that he did take the knife out in the van on the way to the police station with some vague idea in his mind of scaring them, as he told them. "I took it out and opened it and had it by my back to scare them." We are talking about his intent at the time he took it out of the pouch and opened it in the police vehicle. Then in the condition in which he was he intended to scare them. They then get to the police station.

The other prisoners get out of the back of the police vehicle. He is so agitated and upset, according to Johnsone, that they did not even ask him to get out. They let the others go and Johnstone shut the door again so that the others could be taken into the cells and the police officers could return and then they could deal with Mr Cutter in whatever way was appropriate. He was upset, agitated, swearing at them and so on. Then they opened the back of the cage. They grabbed hold of his legs and tried to pull him out. They were struggling. He was wedged in trying to keep himself in the back of the police van and, remember, your Honours, here we are talking about a distance of some four feet, on the evidence, from the mesh at the front of the cage and the door at the back. So it is a confined space. It is dark inside there. It is round about 9.30 at night.

There are lights outside the police station but none, apparently, in the back of the van, not shining right into the van. The two police officers are trying to force him out, to pull him out by his legs. He is kicking them to try and get them off his legs to keep himself in the vehicle. Constable Kirwan leans into the police vehicle trying to grab hold of Mr Cutter. Again, there is a very confined space here, and given the height of the back of the vehicle above the ground, it is quite clear that the only part of Constable Kirwan's evidence that was in the back of the van, and even available to Mr Cutter to strike at - - -

DAWSON J: Constable Kirwan's body, you mean.

MR ROBERTS-SMITH: - - - was his upper torso. And, of course, he is leaning forward so there was a very limited area of Constable Kirwan's body which was even open, even available, to Mr Cutter to strike at.

KIRBY J: Limited and vulnerable as every human being knows.

MR ROBERTS-SMITH: If one stops to think about it.

KIRBY J: I do not think you have to stop to think about the vulnerability of the jugular and of the heart. Everyone knows that.

DAWSON J: It is a question as to whether Mr Cutter stopped to think about it.

MR ROBERTS-SMITH: That is exactly right. It is a question of what this particular man did and what was in his mind at the time and whether he did stop to think.

KIRBY J: So the law requires that he stop and think, that if he does something that is so obviously manifestly and cruelly dangerous to another human being, that does not matter.

MR ROBERTS-SMITH: No, with respect, we are not putting it in that way. We are simply putting it on this basis - - -

BRENNAN CJ: Since Smyth v The Queen you would, would you not?

MR ROBERTS-SMITH: What we are saying is, the law requires him to have been conscious of what he was doing and adverted his mind to it and formed a specific intent to kill, that is what the law requires.

BRENNAN CJ: The specific intent is something which encompasses the death of the person that he is attacking, in other words, did he intend to kill Kirwan? Was that what he wanted to accomplish at the time that he struck the blow?

MR ROBERTS-SMITH: Yes, exactly, your Honour.

BRENNAN CJ: And that is a question which, after Smyth v The Queen, has to be predicated of the individual in the circumstances in which he is placed.

MR ROBERTS-SMITH: That is our point, your Honour. That is precisely our point.

BRENNAN CJ: Is there much else to say?

MR ROBERTS-SMITH: There is clearly, judging by some of the questions which are being put, because the next step is to ask whether there is any reasonable inference open, on this material, other than that he had that intent and, clearly, at least two judges in the court below were of the view that there were no other reasonable inferences.

KIRBY J: And the primary judge, do not forget about him. He had the advantage of actually seeing witnesses and being there in the drama of the trial though not, sadly, hearing your client's version.

MR ROBERTS-SMITH: Yes.

McHUGH J: What is your reasonable hypothesis about the state of his mind? I do not think you have answered that.

MR ROBERTS-SMITH: No, I am trying to get to it, if your Honour pleases. We submit that in that scenario, given all the factors that I have mentioned, it has to be at least reasonably possible that when the police officers were grappling with him and he was trying to fight them off, he struck out - and the evidence was he was holding the knife, as we understand it, projecting forward not from the bottom of the palm of his hand - thrust out at Constable Kirwan, simply at Constable Kirwan, and the only part of Constable Kirwan that was open to him was his head, shoulders and upper chest. Your Honour Justice Kirby says, "Well, clearly, a vulnerable part; must have had an intention to strike at a part everyone would know to be vulnerable", and so on.

KIRBY J: No, it is a matter of putting that into the equation and it is not conclusive.

MR ROBERTS-SMITH: What we would say about that, your Honour, is that first of all the inference that he himself adverted to that is simply not the only reasonable inference, because there is another one, which is that he was simply striking out blindly, that he had no particular intent in his mind at all. He had a knife in his hand - - -

GUMMOW J: He said he wanted to scare them off, in effect, so he could walk to the cells on his own.

MR ROBERTS-SMITH: Yes. Your Honour, one looks at the context in which that question and answer was given. The first mention of scaring them relates to his state of mind after they had left the hotel and they were on their way to the police station. We say certainly the inference may well have been open that at that time he did indeed have an intent to brandish the knife - no more than that - and scare the police officers.

KIRBY J: That does not seem to be consistent with what he actually did. That is a matter of brandishing a knife; but when you actually lunge at a person and put a knife into their jugular, into their neck, then is it not a reasonable inference that you intended to kill? Is that not one that is available to the primary judge or to a jury?

MR ROBERTS-SMITH: Your Honour, the point that I am trying to make about that is that we are talking about a volatile situation and states of mind, which of course can change from time to time. The fact that he had an intention - - -

DAWSON J: There was never an admission from him that he intended to stab him near his jugular at all.

MR ROBERTS-SMITH: That is right.

DAWSON J: He could have stabbed him, on his evidence, in his shoulder. If he had have stabbed him in his shoulder, there would be no question of charging him with attempted murder.

MR ROBERTS-SMITH: Your Honour has pre-empted me, because stabbing him in the shoulder was one of the suggestions that I was about to offer as being a likely possibility. Had the blow in fact been three inches to one side, it would have in fact been in Constable Kirwan's shoulder.

KIRBY J: Had it been one inch to the other side, it might well have terminated Constable Kirwan's life.

MR ROBERTS-SMITH: It might well have done.

DAWSON J: We are looking at the question of intent, not the consequences which did or did not happen.

MR ROBERTS-SMITH: Exactly. Again, with respect, Justice Dawson, that is an important point in the way their Honours in the court below approached this. We can perhaps give one illustration of that. For example, Justice Kennedy said he was not impressed with the fact that the wound to Constable Kirwan was only 1.5 centimetres deep - a point which had obviously been made by the defence at trial - because that did not tell you anything because Constable Kirwan may have moved back as the blow was struck, it depended upon the relative positions of their two bodies and so forth.

Justice Rowland, on the other hand, said that the depth of the wound, given that the blade length was 9.5 centimetres, was something which ought to have been taken into account and had not been taken into account in that way by the learned trial judge. Can I perhaps, coming back to the way in which your Honour Justice Dawson expressed the question a moment ago, suggest this: that had the depth of that wound - perhaps picking up your Honour Justice Kirby - had the depth of that wound been nine centimetres, I would suggest, with respect, it would be inconceivable that the trial judge and the majority judges on the Court of Criminal Appeal would not have regarded that, given the approach they have taken, as being of great significance in assisting them to draw the inference that it was therefore a blow of considerable force and demonstrated an intent to kill. Yet the contrary conclusion is not draw, even as a reasonable possibility, from the fact that the depth of the wound is only 1.5 centimetres.

McHUGH J: You have got the policeman's evidence that he lunged at him - the accused lunged at him, and you have got the accused's admission, when he was asked, "Did you aim to stab him in the chest?", the accused said, "Anywhere up top." and indicated the chest area.

MR ROBERTS-SMITH: Yes, exactly.

DAWSON J: That is consistent with an intention to wound.

KIRBY J: And, I would add, you have the fact that there was no relationship between them that would explain - except that office of being a policeman - that would explain a deliberate intention to kill. But it is a question of there being only facts from which inference can be drawn. I feel a disquiet which I think a citizen would feel about this case. Now, I know we have got to apply the legal principles, but it is a sense of disquiet, that a person in a police van can lunge at a policeman with a knife and then it is said, "Oh, well, he did not really - we have got to look at whether he paused and whether he thought about it." It is so obvious to a citizen, it is a reflection - - -

DAWSON J: It is not a question of disquiet; it is a question whether the Crown proved what it had to prove, and it had to prove an intent to kill.

MR ROBERTS-SMITH: Quite so, with respect. And in terms of disquiet, might I, with respect, suggest this; that there must surely be disquiet from the other way as well in these circumstances, with this man, who, on the trial judge's findings, was, to some extent, affected by alcohol, who found himself in the situation where he was in the back of the police vehicle, and irritated and upset and aggravated, where they were struggling with him - or, he was abusing them and they were struggling with him. It was a very volatile and violent situation. They actually had him by the legs. They were trying to drag him out, as indeed they did - pulled him out by the legs and precipitated him onto the ground on his back.

KIRBY J: What can you suggest they do, compatibly with their office, just say, "Oh, when you are ready, please come in."

MR ROBERTS-SMITH: No, certainly one would not suggest that. But let me say at this point, I do not criticise that. It is not necessary for me to criticise the way they were doing that, because that is not the issue.

KIRBY J: No.

MR ROBERTS-SMITH: The issue, of course, is the effect on him. So, he has got his legs held by two police officers and, of course, in that confined space, if he is to strike out at Constable Kirwan with any intent, or no intent at all other than to, "Keep them off me", "Get them off", you know, "Get away", be it a reckless state of mind, be it an intent to wound, or be it, as I say, simply striking out blindly at the nearest police officer without any conscious advertence to possible consequences, any of those - - -

BRENNAN CJ: That is not the test. It is not a question of conscious advertence. We are not dealing with a question of recklessness.

MR ROBERTS-SMITH: No, but Justice McHugh asked what are the reasonable hypotheses open and our submission is that that is one of them, which is inconsistent with specific intent.

DAWSON J: Why are you going to all this? One of the reasonable hypotheses is that he intended to wound the policeman, but had no intention to kill.

MR ROBERTS-SMITH: That is one of them.

DAWSON J: That is enough.

McHUGH J: That is about your best point, I think.

KIRBY J: The other would be he did not even have an intent to wound. It was just to frighten or let them retreat until he was good and ready to leave, but wound he did and potentially gravely serious wound.

DAWSON J: Well, that has got nothing to do with it, what the potentials were. The fact is what he did and the intent with which he did it.

MR ROBERTS-SMITH: And, of course, that is our submission, that is the gravamen.

DAWSON J: I do not see that you need to elaborate it greatly. It seems to me self-evident.

MR ROBERTS-SMITH: Some of your Honour's brothers do not seem to share the same view.

DAWSON J: No, apparently.

MR ROBERTS-SMITH: Can I come back to the interview at page 5. It is significant when looking at the extent to which that can be relied upon to look at a number of factors. First of all, as your Honour Justice Dawson has pointed out, at no point is the specific question asked and answered as to intent at the time. Secondly, at the middle of page 5 - and I am referring to the written submissions simply because it is easier for your Honours, I trust - the question is:

Lague: What do you think might happen if you stab someone in that area?

So that is the present tense "What do you think?" and that is where the answer comes, "Kill them." The first point we make about that is the use of the present tense, which when one then goes later to the question over the page towards the end:

Lague: Did you think you could have killed him?

Applicant: Maybe, yeah.

What we say about that is - - -

KIRBY J: That is past tense.

MR ROBERTS-SMITH: That is past tense and your Honours will have noticed that there was a difference of understanding of whether the actual question had been in the past tense or the present tense. I can tell your Honours that I have caused the court reporting service to check the tape of that and they have confirmed that the transcript as it is set out in the appeal book is, indeed, correct. In the end, we submit, nothing turns on that, although it possibly would have strengthened our argument had the tense been the present tense.

KIRBY J: Maybe these are subtleties which it is a bit unfair to your client to attribute to his understanding of the language, especially in his state of intoxication.

MR ROBERTS-SMITH: Which is why we make this submission.

BRENNAN CJ: But if you look at that answer:

Lague: Did you think you could have killed him?

Applicant: Maybe, yeah.

Well, that takes it no further than recklessness.

MR ROBERTS-SMITH: That is right. It is equivocal.

BRENNAN CJ: It is not equivocal. It takes it no further than recklessness.

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: In other words, it does not establish intent.

MR ROBERTS-SMITH: Quite.

McHUGH J: I must say I do not read it as really asking about what his intention at the time, I rather read it in the context as his being asked as though it had the assumption in it, or the hypothesis that, "Seeing what you did, do you think you could have killed him?", and he says, "Well, maybe, yes". It is sort of looking back and, "You aimed at the chest?", and then you are asked, "Did you think you could have killed him?", and you say, "Yes". I do not really see that particular question and answer as being of great significance. It is more the objective facts together with his own admissions that he wanted to stab the policeman when they took him out of the van.

KIRBY J: That is what he says in the question before that, "Why did you stab that policeman and not the other one?---He was closest". That fits in with presentation of the upper torso and he just happened to be the one in the way.

MR ROBERTS-SMITH: That is right. For those reasons, your Honours, we say, as we have, that their Honours in the court below were correct in saying, "Well, to look at the question of intent, really we must put the interview aside". There are aspects of that which are just too uncertain, too unsafe to rely upon when we are drawing such critical inferences. So that one then comes back to the way in which Justice Ipp approached it, which was putting aside - at page 96 - those questions and answers. The only factors available upon which to determine any inference of specific intent were the fact - and I interpolate this - is an intermediate finding of fact; the fact that the applicant intended to stab the officer and did so at the time and in the manner and the place in question. His Honour's approach to the determination of specific intent ultimately turned simply on those, essentially, two considerations.

KIRBY J: Not quite that. It is that he had a long knife which we know, or it is said, he had for a different purpose; that he had it secreted on him; that he brandished it and went for an upper part of the body which any person knows is vulnerable, and that he did that in order to effect his will against conforming to the instructions of the police officers at the time. The question is, was it open, or was it the only open inference of the primary judge to draw from that, that that was an intent to kill. Telling very strongly against it in my mind is that there was no relationship between them that would go so high as to intend to kill a person.

MR ROBERTS-SMITH: As your Honour I think earlier pointed out, there was no relationship between them at all other than the fact that Kirwan was, of course, a police officer and, indeed, at page 6 of the written outline where we set out the interview, he was asked:

Lague: Do you dislike police?

Applicant: Yes, they arrest me all the time - sometimes for nothing.

Lague: Did that have anything to do with why you stabbed him?

Applicant: No.

So there is a positive denial even that the fact that he was a police officer had anything to do with it. I will put it this way. A reasonable inference open from all of that evidence quite simply is that they were police officers, certainly, that they were doing their duty, certainly. They were trying to get the appellant out of the van. He did not want to get out of the van. That was the situation with which he was dealing. They were authority, he did not know them individually, he was not having a go at them because they were police officers or because they were authority. He was simply trying to stop them getting him out of the van.

GUMMOW J: Why would he want to stay in the van?

MR ROBERTS-SMITH: A good question, your Honour.

DAWSON J: Rationality does not always - - -

MR ROBERTS-SMITH: Again, it raises the very issue. We do not know. We cannot say what was in his mind. What perhaps it does help us with though, I suggest, is this, that in itself, it is, on the face of it, perhaps - - -

GUMMOW J: But he said he did not want to go in the van, he wanted to walk to the cells.

MR ROBERTS-SMITH: Yes, but he was struggling to stay in there, at least he was struggling to prevent them taking him out, perhaps that is a more accurate statement of it.

BRENNAN CJ: He was agin the government.

DAWSON J: Protesting.

MR ROBERTS-SMITH: Any of those things, but we do not know.

KIRBY J: The result is that he stabs a policeman with a long knife and he stabs him in a very vulnerable position and - - -

MR ROBERTS-SMITH: Coincidentally, we submit.

KIRBY J: - - - he walks away with a minor infraction of wounding.

MR ROBERTS-SMITH: With respect, we hardly submit it is a minor infraction.

KIRBY J: If you go for a person's upper torso, it is a very serious matter, as far as I am concerned.

MR ROBERTS-SMITH: As I think I conceded at the very outset, as an offense of unlawful wounding, it is clearly a serious matter, no question about that, but one needs to look at the circumstances in which this man was. It was a fortuitous, an unhappily and unfortunate fortuitous event, and no more than that, in our respectful submission.

GUMMOW J: Where do you say the intermediate Court of Appeal went wrong? You say they did not go wrong as a matter of understanding the principle?

MR ROBERTS-SMITH: Yes.

GUMMOW J: Where do you say they misapplied.....beginning with Justice Kennedy.

MR ROBERTS-SMITH: I am sorry, your Honour?

GUMMOW J: Beginning with Justice Kennedy. Where do you say he went wrong? I know he agreed with Justice Ipp, but he had some - - -

MR ROBERTS-SMITH: Justice Kennedy we deal with essentially on the basis that he adopted the reasons of Justice Ipp. He elaborated on them a little but he essentially simply adopted them.

GUMMOW J: Was there anything wrong with the elaboration? There is no jury in this case.

MR ROBERTS-SMITH: No, there is no jury. This is a trial by judge alone and, therefore, one consequence we would say - - -

GUMMOW J: The facts, which are fairly exiguous, get raked over three times.

MR ROBERTS-SMITH: Yes. But there was not a great deal in contention in terms of the facts. The critical issues all had to do here with what inferences could or should be drawn from the facts as they were adduced.

BRENNAN CJ: Then, you accept the proposition advanced by Justice Kennedy that you apply the test in Barca's Case?

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: Do you accept the findings of fact, except where they relate to questions of intent?

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: So, the sole question then is one of fact as to the inference to be drawn from those facts, in the light of the Barcar test.

MR ROBERTS-SMITH: Well, that is really the caveat, because what we submit about that is that, although their Honours have articulated the correct test, their process of reasoning, and as particularly exemplified in the judgment of Justice Ipp, demonstrates that they have indeed applied a different test They have a different principle which, we submit, is, in fact, in conflict with what this Court said ought to have been the principle in Parker.

BRENNAN CJ: They have not expressed any different principle.

MR ROBERTS-SMITH: No, they have not.

BRENNAN CJ: Then, assuming that they applied the principle which was expressed, namely, the Barca test, your argument, if I understand it correctly, is that the error that was in the court below was an error of fact.

MR ROBERTS-SMITH: No. Our argument, your Honour, is that notwithstanding that they stated the correct test, their process of reasoning demonstrates that they adopted a different test, which led them into error in the way in which their Honours drew the inference as to intent to kill.

BRENNAN CJ: What was the different test which they embraced?

MR ROBERTS-SMITH: The different test was twofold, in our submission. The gravamen of it may be discerned from those extracts from his Honour Justice Ipp's judgment, which we reproduce at paragraphs 14 and 15 of our written submission, and culminating in the extract at paragraph 18.

BRENNAN CJ: Where is the principle there?

MR ROBERTS-SMITH: The principle inherent in those statements and conclusions, we submit, is that where the situation is as their Honours regarded it as being, that to strike a blow at somebody in the upper chest or torso area with a knife would be known by anybody to be likely to kill, that, in effect, is translated by their Honours into a finding that this man, at that time, had, first of all, that state of foresight or awareness and, secondly, given - - -

BRENNAN CJ: You are getting into the facts. What is the principle?

MR ROBERTS-SMITH: The principle is that they have - the principle is, particularly exemplified in paragraph 18, we say very close to that in DPP v Smith, that the prospect of death, and it is probably stated best at paragraph 22, the prospect of death resulting was so obviously probable that Cutter must, as a reasonable man, have contemplated that death was likely to result and any possible inference other than an intent to kill was therefore precluded. Now, we submit that when one looks at that proposition in the context of the other statements made by his Honour Justice Ipp that is tantamount to saying Cutter must be taken to have intended the natural and probable consequences of his acts.

BRENNAN CJ: So what you are saying then is that although they expressed, although Justice Kennedy expressed himself in terms of the Barca test that, in truth what they did, was to apply the test of Smith?

MR ROBERTS-SMITH: Something very close to it.

BRENNAN CJ: Yes, I see, all right.

MR ROBERTS-SMITH: That is our essential proposition.

GUMMOW J: It gets confused by the notion of inference, does it not, the question of specific intent this man has occasioned. It gets confused by the intrusion of the notion of inference and just what is involved.

MR ROBERTS-SMITH: In what way, your Honour?

GUMMOW J: How does one draw the inference? Who is the one?

MR ROBERTS-SMITH: Yes.

GUMMOW J: There is an objective element in it, in the process of inference. I mean, in a way it is an appeal to rationality, but then, they are looking at an individual who may not have been highly rational. How does one - - -

MR ROBERTS-SMITH: That is, in our submission, the law. It is subjective, and absolutely right, he may not have been rational which is perhaps the point - - -

DAWSON J: You are being asked how does the law square that up?

MR ROBERTS-SMITH: I am sorry, your Honour.

DAWSON J: How does the law square that up and the answer is it looks at the individual exclusively.

MR ROBERTS-SMITH: Exactly, yes. He may not be acting in an entirely rational way. He may not be acting in the way that your Honours, or I, or anybody else, would, standing here in the cold light of day, expect to act.

KIRBY J: He may or he may not, but a court has to draw inferences. It has to reach a result and, here, what is wrong with the logic of saying, "We're not favoured in this case with direct evidence of the intent, and, therefore, we have to draw an inference." When we draw an inference we take into account the common knowledge of mankind that if you lurch with a knife at a human being at the upper torso that that is so self-evidently serious that it can cause death and, in this case, when we look at what happened, that that is the only real inference that is available in this particular man's case.

MR ROBERTS-SMITH: The difficulty with that, in our submission, is that there is nothing between the proposition and the conclusion in terms of evidence to enable that inference to be drawn.

DAWSON J: That is - apart from that that is the importation of an objective standard. There is not an objective standard in criminal law in these circumstances.

KIRBY J: That would mean, because we do not have evidence of the subjective intent, that courts could never draw that inference because there is always that gap, but that cannot be the law. The law must require that a jury or a judge draw the inference from all of the evidence because it is rare, indeed, that the actual intent can be affirmatively and conclusively determined.

MR ROBERTS-SMITH: It is not our contention that the evidence is not open to be taken into account as assisting the Court in coming to a conclusion one way or another in relation to the question of inference. What we are saying is that in this particular case it simply is not there, and the only way in which their Honours could have, and in fact did get to that conclusion here, was by doing two things: first of all, equating assumed foresight of consequences with actual foresight - the point we make at paragraph 19 - and then elevating the test to an objective test and saying, effectively, because everybody could be expected to know that, therefore, Cutter did. That is what they have done, in our submission, and that is very close to Smyth's Case,

BRENNAN CJ: Smith's Case.

MR ROBERTS-SMITH: I am sorry, Smith's Case.

BRENNAN CJ: The alternative way, as I understand that you are putting it, Mr Roberts-Smith, is this: either they applied a wrong test which was at least analogous to Smith's error; or, if they applied the right test, the facts did not support the inference which the Court drew.

MR ROBERTS-SMITH: Yes, as a pure ground of appeal we would put it either way.

BRENNAN CJ: That is, did not support it beyond reasonable doubt.

MR ROBERTS-SMITH: We would put it either way, yes. Certainly that latter contention has always been the contention made on behalf of Mr Cutter. So, in short, what we are submitting is that one we get to the position, as we exemplify in paras 18, 19 and 20 of our written submissions, that their Honours below have equated assumed foresight and awareness with actual foresight, there being no direct evidence of it, and then talked about the degree of common knowledge precluding any explanation other than this, "This man had a specific intent", they are effectively, as we say, applying a wrong principle, they are applying an objective test.

KIRBY J: You say that, but the search being into the mind of your client, and if it is a fact that every human being knows that if you go with a sharp instrument at the upper torso of another human being, why is it not available to infer then, looking into the mind of your client and looking at the inferences that may properly be drawn, that he would have known that fact? It is self-evidence, it is universal, everyone knows it, therefore, he knows it. What is wrong with that? It is not the objective test, it is the subjective mind of your client but drawn with the only imperfect materials that are available in default of his actual believable statements.

MR ROBERTS-SMITH: Can I respond to that this way. To say that something is so much common knowledge that everybody must be presumed to know it is, with respect, not an appropriate guide even when looking at evidentiary circumstances such as this. It is one thing to say, "This is common knowledge, most people would know it." With respect, it cannot be said that everybody necessarily knows it all the time.

KIRBY J: The Medes and the Persians would have known that if you go with a knife and stick it towards a person and then stick it in them in their upper body that there is a very real likelihood that you are going to kill them.

MR ROBERTS-SMITH: It depends precisely where. If you stab them in the shoulder, no. If you stab them in the lower chest, perhaps no. If you stab them in the base of the throat, perhaps yes. So it comes then down to whether there was in fact a deliberate aimed blow, not just at Constable Kirwan and at that part of his body, the only part of his body which was in the back of the van, but deliberately aimed at the very base of his throat and, of course, we have attacked that as one of the inferences that is not open. I mean, it begs the question to say that because it struck him at the base of the throat, therefore, we take that as a blow which was deliberately intended to strike him at the base of the throat. It is just as reasonable to say that the precise position of the blow was entirely fortuitous. That inference is clearly open, in our submission.

KIRBY J: Well, you may be right, but is not the message that is sent out by Justice Ipp's majority view at paragraph 18 a better one from the point of view of society? That may not be a governing consideration, but the fact is that his statement gives rise to a very clear statement on behalf of the courts.

MR ROBERTS-SMITH: No. With respect, quite the contrary, because we would say that enunciation, that articulation is effectively a restatement of the Smith principle, the objective test.

GUMMOW J: Now, assume you are right about what went wrong in the majority of the Court of Criminal Appeal. You have then got to deal with the trial judge, have you not, because he was finding these facts?

MR ROBERTS-SMITH: Yes.

GUMMOW J: Where do you say the trial judge went wrong at page 73? There is only one paragraph really, starting at line 31.

MR ROBERTS-SMITH: Essentially in the same way, if your Honour pleases.

GUMMOW J: Not quite.

MR ROBERTS-SMITH: At line 40 page 73 he says:

The area must be regarded as a vital area and I consider the accused was aware of this.

That reference perhaps has to be taken as a reference to an awareness as at the time he struck the blow.

GUMMOW J: Yes.

MR ROBERTS-SMITH: Now, we have already contested that finding for reasons already explained. He then talks about the position of the wound and raises the very point I addressed a moment ago:

I find it compelling that the accused person aimed at the place where the knife penetrated. He aimed a large knife at a vital area.

Now, what exactly is his Honour referring to there? It seems he was referring to or saying that Cutter aimed what his Honour describes as a large knife at the base of Constable Kirwan's throat. Now, that is not the only reasonable inference open in those circumstances. It cannot possibly be, in our respectful submission. He is jumping from the fact of where the stab wound was to a conclusion that because it is where it was and because it is a vital area, therefore, he must have aimed it there and because he aimed it, therefore, he had an intent to produce the most likely consequence, which was death. That is the process of reasoning and we say that is wholly fallacious, with respect.

BRENNAN CJ: He has put it in conjunction with the answers given by the accused. In other words, he has taken the conclusion that the accused person aimed at the place where the knife penetrated, in part from the circumstances of that evening and in part from the contents of the interview.

MR ROBERTS-SMITH: Yes.

BRENNAN CJ: Whereas, unanimously, in the Court of Criminal Appeal, the statements made in the interview were not to be regarded as admissions of a state of mind entertained at the time of the event.

MR ROBERTS-SMITH: That is correct, with respect, and so his Honour, in our submission, the trial judge, erred in that respect also, as, we would say is implicitly found by the court below. That was, as your Honour the Chief Justice points out, an important part of the trial judge's process of reasoning in getting to a specific intent to kill.

In passing, might I simply make a further observation: his Honour the trial judge at the bottom of page 73 refers to a large knife.

DAWSON J: It was only nine and a half centimetres - - -

MR ROBERTS-SMITH: I was about to say everything is relative. I am not saying it is a small knife, but it is not a bowie knife.

DAWSON J: It is about that long.

MR ROBERTS-SMITH: It is slightly longer than your Honour's middle finger, as a general guide, I would submit.

McHUGH J: That is.....four inches.

MR ROBERTS-SMITH: Yes. I simply make the observation, with respect, that others may not describe that as a large knife. Of course it was used here as a weapon - we do not mitigate that in any way - and it was, as we have already conceded, a serious unlawful wounding. But, in our respectful submission, when one looks at the process of reasoning of the learned trial judge and the majority in the court below, they have all, in effect, committed the error of finding - I will withdraw that - they have all committed the error of excluding, on the evidence, hypotheses which we contend, with respect, are necessarily reasonably open. In particular, in the court below, their Honours have, notwithstanding their articulation of the correct principle, in fact, adopted an objective test and in that way applied a wrong principle of law. If your Honours please, those are our submissions.

BRENNAN CJ: Thank you, Mr Roberts-Smith. Yes, Ms Deane.

MS DEANE: If I could begin, your Honours, by referring to my friend's opening remarks in relation to what should happen if the Court were minded to grant this appeal. My friend has discussed it with us this morning and the situation is as he has outlined, that were the appeal to succeed, then, if the Court were in agreement, it could be dealt with in the way my friend has suggested to the Court.

DAWSON J: That is to, in the end, substitute a sentence of two years, nine months.

MS DEANE: That is correct, your Honour, yes. We, of course, would not take issue, and I do not understand my friend to take issue either with the fact that if this were to be considered a case of unlawful wounding, then undoubtedly we would say it is definitely at the upper end of the range of such activity.

KIRBY J: If it were two years and nine months, does that effect a discharge of the appellant? Is he then entitled to be discharged from prison, or has he then served his full sentence, or not?

MS DEANE: Well, if a sentence of three years, being the maximum, were to have been imposed by the learned trial judge, your Honour, with an order for parole - and there is nothing, I would suggest, that would militate against a parole order having been made, or being made in those circumstances - the practical effect of that would be that the appellant would serve 12 months before being eligible for parole and, as at the present time, on my calculations, and they appear to be in agreement with my friend's, he has served one year and nine months, so he would, if such an order were made, indeed I would have thought be eligible to be discharged forthwith.

KIRBY J: But giving effect to the parole entitlement is a matter for the Western Australian authorities.

MS DEANE: It certainly is, your Honour, for the board there. Your Honours, if I can begin by saying that it seems to be common ground that the sole issue here is the intent that was to be inferred from the facts that were before the trial judge and then, latterly, the Court of Criminal Appeal. As your Honour Justice Dawson has pointed out, perhaps unfortunately, when Mr Cutter was being spoken to initially by police officers the direct question was not asked, so we do not have the advantage, clearly, of the answer, whatever it might have been.

That leaves us in the position of having to look at what was said by the appellant at that time to police officers as, indeed, both the trial judge and the members of the Court of Criminal Appeal did, against the background of proven or known facts as they came out at trial in order to infer the intent. The background, your Honours, seems to be - and there, again, appears to be little issue about his - that the appellant was arrested. He was at a hotel at the time. He had come to the attention of police and was clearly in an agitated frame of mind filled, perhaps, to a certain degree, by the fact that he had been drinking alcohol.

That question did not seem to loom particularly large at trial, though the trial judge did, quite properly, address it and it did not appear to form a major issue at the appeal. When spoken to, the appellant openly admitted that he opened the knife in the back of the police van on the way to the police station. The conversion and, again, for ease of reference, I will refer to my friend's submissions at pages 5 and 6 which reproduces the conversation. Initially he told police that his intent in opening that knife and putting it behind his back, in other words, concealing it, was to scare the police officers.

That, of course, was a matter in terms of an inference to be drawn and also a matter in assessing the cogency of his explanation to be looked at by the trial judge and the court. Mr Justice Kennedy in the majority seems to have rejected any hypothesis from that in that the appellant intended to scare, in the sense that he noted - and I think this is at page - - -

KIRBY J: Scaring would be an alternative hypothesis reasonably open, would it not?

MS DEANE: Initially, your Honour, although, in our submission, it has to be looked at in the context as referred to by his Honour Mr Justice Kennedy at page 81 from about lines 12 onwards. His Honour there says:

Asked in a police interview why he had it "there" -

that is behind his back -

he replied, "I wanted to scare them, to let them know to leave me alone".

His Honour then came to the view, and we would say rejecting that as an hypothesis, by saying:

He obviously did not try to use the knife merely as an instrument to scare the police officers.

His Honour then went on to give two reasons in his view as to why that was so, namely, that he gave no warning before striking in the manner that he did, and secondly, that he made no threats to Constable Kirwan, the complainant.

DAWSON J: Why does that follow? Why is it not a hypothesis that the appellant did take out the knife for that purpose but in resisting being taken from the van and in the struggle which necessarily ensued, when those who attempted to take him from the van did, he struck a blow which was not accompanied by any particular intent but merely a concomitant of a struggle in those circumstances?

MS DEANE: Your Honour, he struck the blow intending to stab, he says, in the upper chest area. In combination with that - certainly it could happen that one did that recklessly or without any particular thought as to what the result might be or indeed what one was doing in particular. In this particular instance that stabbing motion, it being one fairly swift blow occurring in a dark area - - -

DAWSON J: In a struggle.

MS DEANE: In a struggle, a struggle, your Honours, the background to which was that the appellant had wedged himself within a confined space some four feet in a darkened van, we would say fairly cognisant with the fact that the police officers would be wanting to extract him from that particular location, there seems to be little doubt about that. The practical result that would follow from that, we would say, and one which perhaps would not be lost on the appellant, would be that in attempting to extract him from that location one or both of those officers would somehow have to physically enter that van, thereby making one or both of them more easily reachable if he had in mind or had a desire to attack them, or one of them, physically with a knife.

DAWSON J: That is certainly possible.

MS DEANE: He admitted that he aimed at the upper chest area. He, having formed the view that he wanted to stab one of the officers - and I say that, your Honours - - -

BRENNAN CJ: Excuse me. Where is the admission about aiming at the upper chest area?

McHUGH J: It is on page 6 of the appellant's written submissions, the second question.

MS DEANE: Yes, your Honours - - -

DAWSON J: "Anywhere up top (indicating his upper chest area)".

MS DEANE: Yes, and that was really put to him again in the form of really a narrative of what the police had been discussing with him a little later towards the very - - -

BRENNAN CJ: Can I just ask, what was indicated by reference to "upper chest area"?

MS DEANE: I believe, your Honours, although the transcript does not reveal itself as being particularly clear about this, there was just simply a physical indication, I think, on - - -

BRENNAN CJ: Stretching from shoulder to shoulder?

MS DEANE: Unfortunately, your Honours, this is a matter where counsel perhaps did not have the foresight to describe for the purposes of the transcript precisely physically what the witness was doing. The police officer was not asked to describe it.

GUMMOW J: There is a reference at page 88 line 45.

MS DEANE: Yes, he has simply indicated with his own hand on his body his upper chest area and I certainly would not want to lead the Court into error by performing a demonstration of my own as to how I think that can be interpreted, but he made it quite clear, we would say, that that was the area to which he was referring and the area that he had in mind in terms of that is where he formed the view that he wanted to stab the particular police officer.

KIRBY J: Now, this is using the statement by the accused. What is your position in relation to the use of those statements? I thought that the view ultimately reached below was that they should be disregarded.

MS DEANE: Only in part, as we read Mr Justice Ipp's - and, indeed, he would appear to agree with Mr Justice Rowland in that point, only in part in so far as it relates to those questions that might be said to be directed at the knowledge of the appellant and if I can perhaps go to I think it is page 96 - - -

KIRBY J: It is only in so far as it tended to demonstrate intention, was it?

MS DEANE: Yes. The comment that was made by the applicant regarding what he thought might happen when he stabbed someone in that area. Perhaps if I can go to the transcript it may be a little easier, on page 5, midway of my friend's submissions:

What do you think might happen if you stab someone in that area?

A question put in the past tense, a question that arguably might be directing itself in a sense to a somewhat hypothetical situation. That, as we understand it, is the material that his Honour Mr Justice Ipp was referring to, and, indeed, in the end result was agreeing with the view at least on that aspect of the matter that Mr Justice Rowland took in his dissenting judgment. That aside, Mr Justice Ipp then, at page 96 at about line 20, was left with the issue as to what inferences were to be drawn from the fact that the applicant intended to stab the officer in the way he did and at the place. So, as far as the Court of Criminal Appeal majority was concerned it was really that bald question that was left. That, however, your Honours, is not, I think, to cast aside the later question, and I understand there to be some debate about the interpretation that can be placed on this, but the later question appearing at the top of page 6 of the reproduction of the conversation in my learned friend's submissions:

Did you think you could have killed him?

Maybe, yeah.

Then he went on to give some further explanation.

McHUGH J: Ms Deane, could you just tell me what your understanding of the nature of this appeal is? I mean I thought special leave was granted on the basis that there is a question of law involved and that is whether it was open to the trial judge to convict the accused as a matter of law. The case seems to have been conducted here on the basis that what is involved is this Court hearing a question of fact and the fact that there is a reasonable possibility does not - of another version besides intent to kill, does not mean there is an error of law. It is for juries to decide between various hypotheses. So, what is your understanding of this case? Are we dealing here with a question of fact or is it a question of law?

MS DEANE: We understand, your Honour, it has essentially been a question of law, namely, did the trial judge and, I suppose following from that, the members of the Court of Criminal Appeal, draw the inference that was drawn, namely, that he intended to kill, when other rational inferences were open on the evidence to explain the appellant's behaviour, and if that were the case and there were other rational inferences open that were not drawn, then it would clearly be wrong.

McHUGH J: But why? Justice Isaacs used to point out that you can have more than one reasonable inference from a set of facts, that it is for the tribunal of fact to draw them. A notion seems to have grown up that if there is a reasonable hypothesis then, as a matter of law, you are entitled to an acquittal. That is not the law. It is for juries or the tribunal of fact to determine among reasonable hypothesis.

MS DEANE: With respect, your Honour, we would agree with that and certainly this Court cannot be asked to sit simply to review the decisions of courts below to decide whether or not they drew an inference that this Court might draw.

DAWSON J: But the question was made clear in Knight's Case recently and the cases which preceded it. The question is whether - I am speaking of a jury - a reasonable jury could have excluded a hypothesis which is consistent with innocence; that is the question.

MS DEANE: That is correct, your Honour, and our position is - - -

DAWSON J: And in this case - I hesitate to say a reasonable judge - but whether a reasonable judge could have excluded a hypothesis which is open and which is consistent with innocence.

MS DEANE: Yes, that is so, your Honour. And the majority of the Court of Criminal Appeal, in their judgment, rejected other inferences that might have been available.

DAWSON J: And the question here is, could they have excluded an hypothesis consistent with innocence reasonably?

MS DEANE: We say they could, your Honour.

DAWSON J: Yes, and the other side says they could not.

MS DEANE: For example, if one takes a scenario whereby it might be said that the appellant intended simply to frighten the police officer who was trying to take him out of the van and, in that way, in the darkness, and in the panic of the moment, simply stabbed out somewhat blindly and was unlucky and struck the man in very vulnerable area.

DAWSON J: Or that he, in the struggle, did not turn his mind to anything in particular; that he just struck, and he may have intended to wound. That may have been the extent of his intent and, in the struggle, forming no more specific intent than that, is that an hypothesis which is open on the evidence?

MS DEANE: Initially it may have been, your Honour. But then, when one looks at the evidence in more detail, that hypothesis, in our submission, becomes less attractive and perhaps - - -

DAWSON J: But was it open? That is the point.

MS DEANE: Not on the evidence, your Honour, at the end of the day.

DAWSON J: Why not?

MS DEANE: Because it was against a background of a man in a state of anger - and that is perhaps only a minor point - then placed in a - - -

DAWSON J: But the state of anger, if that is something to rely on, is something that is likely to militate against the formation of a specific intent. Anger of this sort, which is in the context of a protest - a person not really acting very rationally at all in all the circumstances, and intoxicated to a point.

MS DEANE: Yes, your Honour, but nonetheless this man did, from the very beginning of his dealings with police officers, embark upon a fairly sustained plan to be difficult to deal with. As soon as he was - I cannot say "as soon as", but it would appear in the short space of time between being taken from the hotel where he was initially arrested and arriving at the police station he removed a knife - and I say "removed", because it does not seem to have been apparent on his person when the police were initially dealing with him physically at the hotel - opened it so that the blade was out, concealed it behind his back in a van area that was confined and dark, admitted to forming an intent to stab the police in the course of that journey, so, certainly, your Honours - - -

DAWSON J: Let us test it this way, Ms Deane? Assume that he did intend, in doing what he did, only to wound. What, in the circumstances, is inconsistent with that?

MS DEANE: The fact that he did not brandish the knife around in any way; the fact that he lunged at an area that was very vulnerable.

DAWSON J: He did not, you see. The evidence is that it was from across the chest. It may have been the shoulder for all we know.

MS DEANE: Certainly, your Honour, he did indicate that - and as we have no direct evidence, I think, of precisely the dimensions of the area that he intended to go for or lunge at. He had it firmly, on the evidence, we would say, fixed in his mind that he was going to take an instrument, a dangerous weapon in fact, a knife that was opened and had been concealed and he was going to, in one movement, as he in fact did on the evidence, plunge that, or go with that particular instrument, to an upper chest area.

DAWSON J: And all that is consistent with an intention to wound.

MS DEANE: It may certainly be, your Honour, but that was an hypothesis that, on hearing all of the evidence and taking into account those parts of the interview that were accepted by them, the court rejected.

DAWSON J: It did, but it did not really consider the other hypotheses. I am asking you, what is it, if you assume that that was his intention, is inconsistent in anything in the evidence with that intention?

McHUGH J: It is a bit difficult for you if you assume that was his intention. It assumes the answer, does it not?

DAWSON J: It assumes the hypothesis, you see, that is the point. I am assuming an hypothesis and you tell me something which discounts it.

MS DEANE: Your Honour, it was a matter that Mr Justice Ipp turned his mind to and, by implication we would say, he was rejecting the hypothesis. It is the - - -

DAWSON J: He may have, but I am asking you, how can you?

McHUGH J: One answer, you can say, is that when people aim a knife at somebody's chest they do not ordinarily intend merely to wound them. If they aim at the leg, maybe. If you aim at the chest with a knife, you usually intend to kill somebody. The question is, in this case, can you think, because of the circumstances, that was not his intention, but prima facie, you would draw the conclusion that was his intention.

MS DEANE: Certainly that would be our position, and in relation to that, your Honour, if it was merely his intention to wound, to carry on with his stated intent to scare so he would not have to either get out or move to the cells - one has to bear in mind that, on the evidence, the appellant's arms and hands were free. Those of the police officers, in particular, Officer Kirwan who was wounded, were not, they were taken up with struggling with this man's legs. If it was a mere intention to wound then, of course, other physical areas were available that were not, on common knowledge and certainly as it turns on the inferences that were drawn in this matter and the knowledge of the appellant, not nearly as vulnerable.

BRENNAN CJ: Ms Deane, could I ask how much longer you expect your argument to take? This is not to put any pressure on you at all.

MS DEANE: No. Your Honours, I do not expect to take a great deal of time at all. The point, as I said at the outside, I think, is a short one, that is, the inference that can be drawn. We have really, in our submissions, outlined what our particular stance is in relation to this. The only other areas that we might, if the Court were to consider it helpful, address would be simply point B of the appellant's argument regarding the objective test that was applied and why we would say an objective test was not applied on the reasoning.

BRENNAN CJ: Then I think that might be something that you can address at 2.15.

MS DEANE: Thank you, your Honour.

BRENNAN CJ: The Court will adjourn until 2.15.

AT 12.56 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.23 PM:

BRENNAN CJ: Yes, Ms Deane.

MS DEANE: Thank you, your Honour. If I could very briefly address those matters outlined in section B of my friend's submissions, beginning at page 10 of the submissions, namely, the objective test. As we understand it, it is said that the Court of Criminal Appeal applied an objective test as to ascertaining the intent of the accused person. If I can start, your Honours, by saying that in Western Australia, pursuant to section 283 of the Criminal Code, there must be specific intent, that is a subjective intent on the part of the appellant to kill and nothing else suffices. In this instance, as has already been discussed, there was no direct evidence of intent.

In relation to the materials or matters raised in paragraph 21 of the submissions of the appellant, our submission, your Honours, is that from the evidence before the Court of Criminal Appeal the existence or occurrence of material facts could be inferred, and in this case what was in issue, or the matter to be inferred, was, of course, the appellant's intent to kill. They are not inferred with certainty. We say that was not done in the Court of Criminal Appeal but certainly they were inferred, with varying degrees or to varying degrees of probability.

It is said that the judgment of the majority of the Court of Criminal Appeal represents a significant move towards the application of an objective test in the Western Australian Appeal Court. With respect, in relation to that assertion we would say that the comments of the majority - and we refer to the judgment of Justice Ipp - are evidence really of his Honour's inductive reasoning. That is the phrase that we would use with respect to describe what his Honour has done in his judgment, and really, at the end of the day, amount to no more than an acknowledgment, with respect, that in all the circumstances, if a given result is certain, then the inference that it is intended may be inescapable. However, we would say that is a product of inductive reasoning. It is not a matter of law or a principle of law.

We would to go on to say, with reference inductive reasoning, or the process of inductive reasoning that we say is exhibited in the majority's judgment, that that reasoning, in itself, is not sufficient to infer, or to permit the inference of a subjective intent to kill. But if one combines that, and looks at it in combination with a legal direction - which, of course, we would say necessarily the members of the court gave themselves a legal direction that the tribunal of fact must be satisfied beyond reasonable doubt as to the accused's specific intent, then that can be done. Of course, we would also say, and we say that it is done in, or it is obvious in the judgment of the majority, that factors that might have a bearing on that, such as the state of panic that an accused person, or the appellant might have been in, or the ingestion of alcohol, can also be considered.

It is perhaps, with respect, your Honours, the presumption that a man intends, or is intended to presume the natural and probable consequences of his conduct, or his acts, is a matter that has really, in terms of its application in Western Australia, been laid to rest in one judgment, at least, that we have been able to find, and I simply mention it. It is No 3 on our list of authorities. I do not intend to go into the details of that particular matter, save to say that it was a charge of grievous bodily harm by virtue of a juvenile in charge of a motor vehicle ramming a police officer, or a vehicle containing police officers and, if there was any doubt about it, at page 11 - - -

BRENNAN CJ: This is I v The Queen, is it?

MS DEANE: It is I (A Child) v The Queen, your Honour, No 3 on our list of authorities. It was a matter, as I have said, where the presumption was discussed by the members of the Court of Criminal Appeal. It was a unanimous judgment, with Mr Justice White writing the judgment, and simply, at page 11 of that particular judgment, the final paragraph, in fact, his Honour made the observation that:

Mere recklessness or foresight of the likelihood of such harm occurring without a such a specific intention to inflict it, is not sufficient.

I mention, your Honours, mindful of the fact, of course, that that was a judgment that was delivered in, I think, about March of 1992, so some considerable period of time before this matter came to the attention of the members of the Court of Criminal Appeal, but, nonetheless, we mention it simply to illustrate the fact that if that proposition was thought to have any currency in the court, that would indicate that that is not so.

KIRBY J: It is a differently constituted court. Sometimes these fundamentals can be overlooked.

MS DEANE: Well, certainly, your Honour, one must, perhaps, always allow for individual views and it is not to say, of course, that from time to time that does not happen.

KIRBY J: Anyway you accept that a specific intent must be established by the prosecution.

MS DEANE: Absolutely, your Honour. We start from that point and can take it no further. In relation to that particular matter it might seem at first blush that the remarks or comments of the majority in Mr Justice Ipp's reasoning may appear or present something of a problem. We would concede that phrases such as "obviously", "probable" and "it would be obvious to any person" and, indeed, "common knowledge" might perhaps cause some little consternation initially, but what we say about that is, somewhat unusually, because this was a case where the Court were actually providing reasons, it is simply a matter of his Honour really practically giving voice to, or analysing, his process of inferential reasoning by reference to concepts of probability and probability theory.

At paragraph 25 of my friend's submissions, he refers to the case of Reg v Hyam. It is No 3 on the appellant's list of authorities, your Honours. It does not appear on the respondent's list of authorities. The only reason I mention it now is to correct a minor error, but one that might have some small significance. I think the quote that is referred to in paragraph 25 of my friend's submissions when considering what Lord Hailsham said, it said - this is on page 11 of my friend's submissions:

Lord Hailsham considered (actual) knowledge or foresight to be the best material which entitles or compels a jury to draw the necessary inference as to intention.

His Honour did say something very similar to that, but at page 65 of the report, the first paragraph. What his Honour actually said was:

Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference -

so, it really seems to be making a distinction between saying it is the best and putting at its highest.

BRENNAN CJ: The difficulty about adopting phrases such as "knowledge or foresight" and drawing inferences of specific intent is that it seems to forget that specific intent, at least under the Code, is a desire to achieve a result. It is not knowledge of any existing circumstances.

MS DEANE: That is correct, your Honour; knowledge.

BRENNAN CJ: And so you can draw - foresight may be a factor from which you can draw an inference of intent.

MS DEANE: That is, with respect, your Honour, precisely what we say as to the situation in Western Australia.

BRENNAN CJ: Yes.

MS DEANE: It really, for want of a better description, is perhaps a foundation upon which one can then proceed to draw inferences, but it in no way equates with an intent, and we accept that.

BRENNAN CJ: Yes.

MS DEANE: The only other point we would wish to make about the matter of Hyam, is that it certainly would appear and, in fact, did introduce a concept of recklessness, but it still required that there be an actual appreciation of the risk of the consequences as far as the actor was or is concerned. In our particular case we would say that the majority of the Court of Criminal Appeal did recognise that the intent was subjective and any inference to be drawn as to intent, of course, had to look directly at the mind of the actor. Indeed, I think Mr Justice Kennedy, at the outset in his reasons adverts to that very point. Mr Justice Ipp, I would have to concede, perhaps does not say it quite so bluntly, but it is certainly apparent when one looks at the whole of his judgment that his Honour was mindful that that was the task for him as a member of the Court of Criminal Appeal.

We would say that when one reads the majority judgment it cannot be said that the majority imported into their judgment any notion of recklessness as such in the overriding sense and we say that because the question was directly posed and the majority accepted that the question for them was with what intention could such a blow be struck, the blow being the blow by the knife to the upper chest area of the constable. We would say that in posing that question for themselves they were implicitly rejecting any inference that the appellant acted recklessly.

I should say just in passing, your Honours, that whilst recklessness plays no part at all in section 283 of our Code, it is included in the Code in other areas, for example, in section 279(2), murder involving an unlawful purpose, but it plays no role whatsoever where crimes of specific intent are to be considered or are being considered by the tribunal of fact. As I have said to your Honour Justice Brennan a little earlier, certainly it is our position that foresight does not equal intent. It is actually a factual issue for the tribunal of fact to take into account. At best it can be said to be a foundation upon which the tribunal of fact can be moved in order to find or infer intent.

KIRBY J: Can I ask you, in relation to the review of the facts, was it the role of the Court of Criminal Appeal to completely review the facts of his Honour's decision in a way that would not be available in the case of a jury because his Honour gave reasons sitting alone as he did and was it their role to examine his Honour's reasons with the deference due to the judge who was the judge at trial but to draw their own inferences of fact or did they have some other role? Did they have to ask themselves some other question?

MS DEANE: No, your Honour. We would say that, although it is a little unusual of course, that they would be looking at a trial judge's decision provided with reasons because, as your Honour is clearly indicating, a jury decision does not provide reasons, nonetheless, we would say their role was not substantially different. They were looking at the matter anew and afresh but, really, to see whether in fact his Honour had rejected any rational inferences as they understood and appreciated the evidence before them, that would have been open and therefore, of course, would have meant that the appellant was not convicted of the charge.

KIRBY J: It came to the appellate court on an unsafe or an unsatisfactory ground, did it?

MS DEANE: Yes, I believe that that was - - -

KIRBY J: So that was the basis on which their Honours were reviewing the decision of the primary judge?

MS DEANE: Yes, and from that, I think, your Honour - - -

KIRBY J: And do you accept that the question that they ultimately had to ask was whether there was an inference consistent with the appellant's innocence of the specific intent of intent to kill, that if there was such an inference, the appellant had to have the benefit of it?

MS DEANE: Your Honour, we, in paragraph 6 of our submissions, state what we saw as the question for the Court of Criminal Appeal. It is on page 3 of the submissions filed, your Honour, and that is simply that whether or not, on the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant intended to kill. That was the issue. We have elaborated on that a little in paragraph 7, but - - -

KIRBY J: And do you accept that his Honour the trial judge could not be satisfied beyond reasonable doubt if there were an inference available that the intent, the specific intent of the accused was something short of the intent to kill, that if there were any other inference?

MS DEANE: On the evidence, your Honour, if there were any other rational inferences which he as the tribunal of fact would not reject as being rational inferences. I accept the proposition, your Honour. The difficulty of course is that in the drawing of inferences, as we would have numerous examples before courts in this country, is that different inferences can be drawn by different tribunals of fact; but I do accept that that really was the issue.

GUMMOW J: In other words, this was the only reasonable inference open on the evidence.

MS DEANE: I am sorry, your Honour?

GUMMOW J: Do you accept this? Whether a reasonable jury could have been satisfied beyond a reasonable doubt that the inference of intent - this particular intent here - was the only reasonable inference open on the evidence?

MS DEANE: Yes. In this instance, of course, we would have to transpose a judge sitting alone as tribunal of fact for jury, but ultimately the fact finder.

KIRBY J: That creates a difficulty, does it not, in that though there may be probabilities to exclude entirely any other inference is a very big ask given that you have got to establish an intent to kill, which is a very big intent, and you have got a person in his situation, with his background and so on, for whom various other possibilities simply to extricate himself from his predicament but without the specific intent to kill are available.

MS DEANE: I would certainly accept, your Honour, that it is a big jump to make and that, of course, is why one would have to, as the court did here, look at the possibility that perhaps he intended to wound or do something else; perhaps he intended nothing in particular other than to display his aggravation and his frustration. I am paraphrasing, because I do not think it was put in that particular way. Implicitly, both in the reasons provided by the trial judge, and, indeed, in the majority reasoning of the Court of Criminal Appeal, that was done. Admittedly, your Honours, another tribunal, hearing exactly that same set of facts, might well come to the view that other hypotheses or other inferences could not be rejected.

KIRBY J: If they are rational hypotheses, is it not the function of Courts of Criminal Appeal as the safeguard against the injustice of a wrongful conviction to say, "There was, contrary to what the primary judge decided, another rational inference short of the very high inference of the specific intent to kill and that, therefore, there being such an alternative inference available, that the accused must have the benefit of it."

MS DEANE: Yes. And I think I gave an example a little earlier in my submissions: Mr Justice Kennedy, for example, rejecting, for reasons that he stated, that a rational inference could be that the man simply intended to scare the police officers. And that, certainly, we would accept initially was open on the evidence, because of what, for a start, the appellant said to the police to begin with. But doubtless having read the materials before him, his Honour Mr Justice Kennedy rejected that. As I say, your Honours, another judge, another member of an appeal court, might well not take such a view.

BRENNAN CJ: In this case, are there any departures between the primary judge and the Court of Criminal Appeal in the findings of primary facts for which inferences are to be drawn?

MS DEANE: Not that I am immediately aware of, your Honour.

BRENNAN CJ: And so, can this Court proceed on the footing that the primary judge's findings are those upon which any question of inference, or no inference, can be determined?

MS DEANE: I would, your Honour, without perhaps going right through the judgment of the primary judge, say that that would be the case, from my recollection. The judgment delivered by the judge at first instance is not a particularly lengthy one. Indeed, the judgments delivered later on appeal are not particularly lengthy. The judgments on appeal perhaps elaborated and amplified, to a certain extent, findings as to facts. But nonetheless, they did not vary in a significant or material way.

Your Honours, if I could just turn briefly to paragraph 31 of my friend's submissions. The case of Hancock is referred to there. In relation to that particular matter, what we would wish to say is that when one looks at the whole of the judgment of the majority, what it comes down to is this; that they found the probability of it being known, and I say "it being known" in the sense of it being known generally, that this was a vital area - that is, the upper chest area was a vital area - to be so high that the appellant, himself, must have been aware of this. That, of course, we would say, answers the question as to the appellant's actual knowledge of the vital nature of this area, but we concede that it does not go on and answer the crucial question, which was as to the appellant's subjective intent to kill.

The cases of Crabbe and Boughey which are referred to in the submissions, I think, in my learned friend submission in relation to Crabbe and also Boughey, we do not intend to address your Honours because they are cases that arise out of common law jurisdictions and perhaps do not take the matter a great deal further when one is discussing a Code State and the law that applies there.

BRENNAN CJ: I do not think Tasmania would appreciate the notion that they belong to a Commonwealth jurisdiction.

MS DEANE: I am sorry, your Honour. I apologise to Tasmania and confine my comments to Crabbe.

BRENNAN CJ: It is a very different Code, is it not?

MS DEANE: It is. It is a quite different Code, your Honour. My friend has also said in his submissions that what effectively has happened is that the Court of Criminal Appeal have applied or have used a concept of assumed foresight when looking at this matter. In answer to that we say that because there was evidence that the appellant had an actual awareness in relation to the possibility or an actual awareness of the vital area that he was putting the knife into it was not assumed foresight but what happened or what was done by the Court was that they used reasoning or employed reasoning similar to the reasoning that was used in Moloney, that is, that it could be used as a foundation only from which to then to proceed to draw an inference.

We say that their Honours then considered the objective facts that arose from the evidence and in reviewing those facts by way of the cognitive process that I have referred to earlier they were satisfied that the degree of probability that someone would appreciate that this was a vital area was so high as to include the appellant amongst that group. Once that was done, following our line of argument, we say that that finding as a foundation then permitted the majority to proceed to draw an inference that the appellant, Mr Cutter, did appreciate the vital nature of the area. Again, and we concede that this is the case, they still had to make that jump that your Honour Justice Kirby has referred to and perhaps it is not entirely fair to refer to it as a jump. It somewhat demeans it. What they had to do was to proceed to see whether or not it was possible to draw the inference as to a subjective intent to kill.

KIRBY J: The appellant asserts it is an Olympic hurdlers leap.

MS DEANE: To the point, I think, your Honour, where it is impossible, so they say, but we would - - -

KIRBY J: I think it is a hard thing to ask the Crown to exclude any other rational inference. Just the rational inference that this was a man protesting and angry at his fate and lashing out and not - it is the lack of any relationship that makes it difficult for me to establish the specific intent to kill the policeman.

MS DEANE: Certainly, your Honour, when one is looking at intent of that nature it is possibly one of the most serious intents that one has to infer. But, in trying to, I suppose, place oneself in the situation that was existing that evening, it is a situation of a man who was not merely angry - that is certainly the case, rightly or wrongly is not to the point, but someone who then proceeds to take a knife, open it so the blade is exposed, place himself in a situation with that knife hidden behind his back, knowing that he is going to a particular location, forming a very clear view or intention on the way that he is going to stab a police officer. Then proceeding to behave in a manner, once he arrives at that location, which necessarily means that a particular point, an officer, a person, is going to have to, if they want to extract him from the van, actually physically put themselves into that situation thereby making themselves, for want of a better word and not wishing to be inflammatory, but something of a target, and then in the somewhat dark and confined space - and I would concede that this works against me as perhaps as well as for me - the somewhat dark and confined space, making one single, and it would seem fairly determined lunge at the police officer.

One, of course, might say in the panic of the situation that prevailed and in the darkness, one might well say an inference, a rational inference is that he did not mean to stab at that particular area, or it was an accident - he was lashing out blinding, or whatever - but, when one looks at that, of course, one also has to bear in mind that he did say that he was going to, or wishing to stab him, I think in the - or that he did stab him in the upper chest area and that he meant to stab the man there for the reasons that he explained. And that he aimed - we would say that that is quite significant - he aimed for that area. If one takes that and says that he aimed for the top, an area that generally would be known to be vulnerable, if the probability of that is so high that it can lead to an inference that the appellant knew that area to be vulnerable, and was aware it was vulnerable, and indeed, there is some limited evidence that would assist one to draw that inference, namely that he was asked, "Did you think you could have killed him?", he said, "Maybe, yeah".

BRENNAN CJ: What was the area available to him to stab into?

MS DEANE: I have some difficulty in answering that helpfully, your Honour. The evidence seemed to suggest that it was the upper torso, upper chest area of the constable that was extending into the van. The constable's arms were also extending into the van because he was concerned at that time to grab hold of one of the legs of the appellant. So, it would appear that from some area above the waist - I cannot say how high - to the top of the head including the arm and shoulder area were the physical area of the constable that was available for the appellant to stab. As I have mentioned earlier, the appellant's hands and arms were free at that point in time, not his legs. They were being held in varying ways by the two police officers.

McHUGH J: One of the points that favours you is that if he only intended to wound, you might have expected he would stab the policeman in the arm because that was what he had hold of, but he aimed for the chest.

MS DEANE: Yes. I cannot immediately recall which one of their Honours - I can exclude Mr Justice Rowland in his dissenting judgment, but I cannot recall which one of their Honours either in the appeal court or trial judge made that very similar observation.

KIRBY J: But it is the "kill" that is the thing I am stumbling over. Maybe Justice McHugh's point is good for grievous bodily harm as distinct from kill, but the intent to kill is a very high intent, and I have said it before, I will not repeat it, I am only expressing my own concerns about what you are effectively asking this Court to confirm.

MS DEANE: Yes, I appreciate the difficulty, your Honour.

McHUGH J: You have to say that ordinarily in the ordinary human experience, if somebody lunges with a nine and a half centimetre blade and aims it at a person's chest and plunges it into a person's chest, it is far, far more likely that they intend to kill than that they merely intend to wound the person. In fact, the idea that he just simply intends to wound them does not strike me as a very likely possibility at all, but no doubt, in some circumstances, that is a conclusion that may be drawn, but the question is, what do you draw in this particular case?

MS DEANE: With respect, that is right, your Honour. We, of course, do not seek to gain terribly much assistance from the fact that it is generally obvious and generally likely. We accept that that does not particularly help us in saying that this particular appellant knew, but when one looks at the answers that he gave, and when one also looks at that in combination with the fact that it is a very obvious piece of knowledge in the community we would say, when one puts those two together, there is not a great difficulty in reaching the view that the appellant himself knew. We accept we still have a problem because we must then go on to establish a subjective intent, but we say that when one discards the other inferences, that is really the only one that is left.

DAWSON J: That is really your case, is it not?

MS DEANE: It is, your Honour. We cannot put it any higher than that, and unless the Court has any questions, if the Court please, they are our submissions.

BRENNAN CJ: Yes, thank you, Ms Deane. Mr Roberts-Smith.

MR ROBERTS-SMITH: Thank you, your Honour. I will be brief, if your Honours please. Might I begin by drawing to your Honours' attention in response to queries about the appellant's position having been sentenced. On my learned junior's calculations, it appears he has already served 22 months of the sentence and the result of that, although this is not something that would be affected directly by anything your Honours might do, the result of that is that tomorrow he will have served the full period of the custodial sentence he would be required to serve, that is, two-thirds of his sentence less remissions, and that would be the position - - -

KIRBY J: Is that a calculation that the Crown agrees in?

MR ROBERTS-SMITH: I have not put that particular calculation to the Crown. We have done that whilst my learned friend was on her feet. I could have discussed it over lunch, but that is the position as we understand it. As I say, in any event, it really makes no difference to any orders your Honours might make. It simply puts his position in context in terms of what he has already served.

BRENNAN CJ: What you are saying is that there will be nothing for the parole board to do if he is entitled to good conduct remissions? Is that right?

MR ROBERTS-SMITH: I believe that would be the position.

BRENNAN CJ: I see.

KIRBY J: Would they not take into account his past record of violence and the seriousness of this offence?

MR ROBERTS-SMITH: The position would be, as I understand it, under the automatic effect of the sentencing legislation that he would have, in effect, served the full period of his custodial term given the remissions.

KIRBY J: In any case, as you say, we are not really concerned with this. If you succeed the Court simply sets aside the orders.

MR ROBERTS-SMITH: Yes, but it did seem to me that, given that we had worked it out, it was appropriate that your Honours should at least be informed of that. Can I go quickly to, perhaps, a very important question.

KIRBY J: May I just conclude that submission? What do you ask us to actually order, though? The original request was remit to the Court of Criminal Appeal for resentence, but what is the precise order that you now seek?

MR ROBERTS-SMITH: We would ask that the conviction of attempted murder be quashed - I am sorry, that the decision of the Court below be quashed, that the conviction of the trial judge be quashed, and that the sentence be set aside, that the appellant be resentenced - I am sorry - that a conviction for unlawful wounding be substituted, that the appellant be resentenced mindful of the three year statutory maximum period and that he be resentenced on the basis of that, but allowing, as the trial judge did, three months for time in custody in relation to this matter and that, accordingly, he be resentenced to a term of two years nine months.

DAWSON J: That is effectively the maximum sentence.

MR ROBERTS-SMITH: That is effectively the maximum sentence. Well, it is the maximum sentence, with time in custody allowed for.

DAWSON J: And the Crown agrees that you - - -

MR ROBERTS-SMITH: The Crown has indicated agreement with that proposition, yes, your Honour.

KIRBY J: On resentence, is it necessary for this Court to make any orders in relation to parole, or do they follow directly from the - - -

MR ROBERTS-SMITH: Well, we would ask that the Court order that the appellant be eligible for parole, as was the order made at trial. On the question of - - -

BRENNAN CJ: Is it a question of two years, nine months imprisonment, or imprisonment with hard labour?

MR ROBERTS-SMITH: It is simply imprisonment.

BRENNAN CJ: Imprisonment.

MR ROBERTS-SMITH: Yes.

KIRBY J: There is no penal servitude in Western Australia under the Code?

MR ROBERTS-SMITH: Statutorily, I think not. The reality may be somewhat different. The question was raised as to whether there are questions of law, given the way this appeal has been argued. Our brief response to that is that there are, in fact, two questions of law here - - -

McHUGH J: But they have to be, have they not? I mean, the appeal is brought under section 688 of the Code, and the grounds available in an appeal against a jury's conviction are the same grounds. Query what effect miscarriage of justice has got in a trial by a judge. On one view, you may be in a slightly stronger position with a judge because you have a judge's reasons, which you do not have with a jury.

MR ROBERTS-SMITH: Yes. We say, with respect, there are two questions of law essentially here. The first is based on our proposition that the court below applied the wrong principle. It effectively applied an objective test in finding that the appellant had a specific intent to kill. The second is, as I think your Honour Justice Dawson mentioned, the reflection of the Knight principle; namely, the distinction between an inference which is merely open as a matter of fact, and an inference upon which it is open to make a finding beyond reasonable doubt.

McHUGH J: Supposing this had been a criminal trial in front of a jury, was there evidence to go to the jury on the count of attempt to kill?

MR ROBERTS-SMITH: We would say no.

McHUGH J: You have got to say no, have you not?

MR ROBERTS-SMITH: Yes, that is right. That is the basis upon which we put that. The distinction we draw is it is one thing to say an inference is open as a matter of fact. It is another thing to say, and it is, in our submission, a question of law, to ask whether an inference is open as a matter of fact upon which any court could be satisfied of it beyond reasonable doubt. That, we say, is a question of law.

McHUGH J: Yes, you have got to say that if this was a criminal jury trial the count would have to be taken away from the jury.

MR ROBERTS-SMITH: Well, the same test applies whether it is jury or judge, your Honour.

McHUGH J: Yes.

KIRBY J: That was not argued below that his Honour should quash that count of the indictment or enter a verdict - - -

MR ROBERTS-SMITH: There was never any application made. There was no case submission made, which it would have been, and then the appeal would have been against the eventual conviction in any event. That perhaps brings me to your Honour Justice Kirby's question of my learned friend a few moments ago, would the position have been any different if it had been a jury trial and the Court of Criminal Appeal had not had the benefit of the reasons given by the trial judge. Our short submission in response to that is as a matter of fact reasons were given, the position is, therefore, no different to the position as it would be on an appeal from a magistrate, for example, where reasons had been given nor, indeed, as it would be in other jurisdictions where judges sit without juries and this Court has in times past certainly heard appeals from, for example, the pre- independence court of Papua New Guinea where trials were always heard before judges without juries.

McHUGH J: I mean, in the last eight years we heard an appeal from Nauru, a case of Amoe v The Director of Public Prosecutions in Nauru which was a murder appeal and Justice Deane, Gaudron and myself heard it.

MR ROBERTS-SMITH: And there was a case of murder in Christmas Island, I think, which went certainly at least to the Federal Court. So our short answer to that is, it makes no difference in principle, the fact that reasons are there simply means that the appeal aourt has an opportunity to examine the reasoning of the tribunal. If it is fallacious, then the appeal court has an obligation to say so. That is the long and the short of it, with respect.

Coming then to the question of whether there was any point of departure between the reasons of the trial judge and the reasons of the majority in the court below, it is probably sufficient to say simply that the differences, to the extent that they do exist, are reflected in paragraph 6 of our written submissions, that being where the primary findings of the trial judge is set out, and paragraphs 14, 15 and 18 where the primary findings of the Court of Criminal Appeal are referred to.'

At paragraph 6 I simply remind your Honours of the submission we made earlier in relation to subparagraph (c) as to his Honour's finding that when Cutter did stab Constable Kirwan he was aware that was a vital area, as was pointed out earlier. To reach that conclusion, his Honour relied to some extent on the content of the police interview in a way which all three judges in the court below agreed ought not to have been done. That, perhaps, is the only point of significant departure.

KIRBY J: Your answer to Justice McHugh troubles me, though. I think you had to give the answer that there was no evidence, because one hesitates to say that matters are such that they should be taken from the jury altogether when you have evidence that there was a record of animus or a suggestion of animus to police. He knew that he was going to be removed, he could therefore infer that somebody was going to present in that space. He had a knife, which he unsheathed, and he then used it. It is hard to say that there is no evidence on which a jury could then draw an inference of intent to kill. Is that not a classic jury question?

MR ROBERTS-SMITH: Can I rephrase it this way. The question perhaps that would be asked at that time would be if the jury accepted the Crown evidence at its highest, could the jury be satisfied beyond reasonable doubt of an intent to kill?

McHUGH J: I do not think you can avoid the question that way. That is undoubtedly a test but your argument would be, you would say, the jury would be bound to find that, at worst, he had an intention to wound and, therefore, it was not reasonably open to them to find he had an intention to kill.

MR ROBERTS-SMITH: That may simply be putting it a different way. One can certainly say, if there is an alternative hypothesis open consistent with innocence which cannot be excluded beyond reasonable doubt, then a jury cannot convict.

KIRBY J: That is Knight, but to say that - indeed it may be that that is a different way of formulating it - a jury could not on this evidence reach an intention when a jury has that capacity of common sense and represents the community.

MR ROBERTS-SMITH: But perhaps, your Honour, that comes back to the point I was seeking to make a moment ago in drawing a distinction between inferences which can properly be said to be open as a matter of fact and inferences which can properly be said to be open to be found beyond reasonable doubt, the former being simply a question of fact and, yes, a matter for a jury, but the legal question then is, given that there are competing inferences open, is the one contended for by the prosecution such that a jury, if it accepted all of the evidence, could be satisfied beyond reasonable doubt if it is the only inference.

DAWSON J: The test is the test in Knight. It has not been questioned in this case and it is clear.

MR ROBERTS-SMITH: Yes, I am obliged to your Honour. Can I conclude then, if your Honours please, simply by coming back to the point of what we might call the substitution of the objective test? It is our submission that the danger of the approach taken by the majority in the Court of Criminal Appeal here is that it does, in reality, despite what they articulated, constitute a subtle, but nonetheless very significant, unstated erosion of the fundamental principle, subjective test for specific intent - - -

DAWSON J: We are going over the same ground. This is not in reply, Mr Roberts-Smith.

MR ROBERTS-SMITH: If your Honour please. Those are our submissions, if the Court pleases.

BRENNAN CJ: Yes, thank you, Mr Roberts-Smith. The Court will adjourn in order to consider what course it should take in this matter.

AT 3.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.13 PM:

BRENNAN CJ: The reasons for judgment in this matter will be published in due course, but the Court is now in a position to make an order in the matter.

The order is that the order of the Court of Criminal Appeal be set aside; the appeal to that court be allowed; the verdict be set aside and the conviction quashed and in lieu thereof a verdict of guilty of, and a conviction for, unlawful wounding be substituted; the sentence be set aside and in lieu thereof the appellant be sentenced to imprisonment for a period of two years and nine months, such sentence to commence from 15 June 1995 and the appellant be eligible for parole.

AT 3.15 PM THE MATTER WAS CONCLUDED