Simpson v The Queen (Cont from 31 March 1998) H5/1997 [1998] HCATrans 89 (1 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H5 of 1997

B e t w e e n -

DAMIEN JOHN SIMPSON

Appellant

and

THE QUEEN

Respondent

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 1 APRIL 1998, AT 10.04 AM

(Continued from 31/3/98)

Copyright in the High Court of Australia

GAUDRON J: Yes, Mr Brown.

MR BROWN: Yes, if the Court pleases. Yesterday there was discussion as to inferences and what use can be made of inferences in the context of this appeal which relates to "knew" or "ought to have known". There are a couple of cases that are of relevance that should go before the Court. One of course is Shepherd, a decision of this Court which I would ask to be distributed. There is a further decision which has been handed to me by my learned friend, the DPP, for which I am grateful, which is Cutter v The Queen, also a decision of this Court - and there should be a copy of that distributed to your Honours now.

In Cutter there is a lengthy discussion as to the principles that are to be applied with respect to the use of inferences in a case involving attempted murder and an intent to kill. The applicable principles are set out by Justice Kirby at page 647 and, despite the fact that your Honour is in the minority in that, I do not dissent from the comments that are generally made there.

There is no doubt that inferences can be used in a case such as that and there is no doubt that inferences can be used in a case such as this. But it is as I submitted yesterday, and as emerges clearly from Shepherd: you can only use inferences when there is a factual base upon which you can proceed to use them, a factual base. It was once thought in Chamberlain that that factual base meant that every fact had to be proven beyond reasonable doubt and that was then discussed in Shepherd in which that very lofty presumption was in fact taken down to where it ought it be but, at the end of the day, the principle still remains the same. You can only draw inferences from facts that are established.

If we can look at an illustration that was discussed yesterday about a 21-year-old who puts a gun to the head of somebody and pulls the trigger, can you use the inference that the person intended to kill in those circumstances, or can you use the inference that the person ought to have known that death was the likely result. Yes, you can, provided that you have got some evidentiary base other than the mere fact that the 21-year-old is 21 because that is not enough upon which to proceed to use the inference. There has got to be at least some evidence that it can be inferred that this person knew what a gun was; there has got to be some evidence that that person had even the vaguest idea that a gun, if it shot somebody in the head, might kill. It is a pretty easy - - -

HAYNE J: The assumption must be that he is fit to stand trial; make that assumption.

MR BROWN: Yes, I am not putting into issue his sanity. We are talking about the jury has to be satisfied that there is some evidence there upon which that 21-year-old has at least some idea that the gun, for example, would actually result in death and it is an easy assumption to draw, it is an easy inference to draw because it reaches the stage where it is notorious that if you shoot somebody in the head with a gun that it will kill them. That is almost a notorious fact. It may also be notorious that if you put a noose around somebody's neck, the inference is pretty easy to draw that if you deny somebody breath for long enough that they will die; that is an easy inference to draw. Is it so easy to draw an inference in this case that death is the likely or probable result in terms of "ought to have known" from stabbing.

KIRBY J: Why is it?

MR BROWN: Why is it?

KIRBY J: Yes, we live in the real world.

MR BROWN: Yes, I am going to go on as to why it is not. The perception undoubtedly is that a knife is dangerous and I do not argue with that, but it is not the test that this Court or any court has to apply. The perception is that a knife is dangerous - not in dispute. But does the fact that the perception that a knife is dangerous permit you to draw the inference that death is the probable result just on that alone?

GAUDRON J: Likely.

MR BROWN: "Likely" equates to "probable" according to Boughey, and I submit that Boughey is the law on this particular - - -

GAUDRON J: The word of the Code is "likely".

MR BROWN: Yes, I will keep on using "likely", but I do submit that in Boughey "likely" means, and equates to, "probable".

GAUDRON J: I think it equates to "a real chance".

MR BROWN: Yes.

McHUGH J: "A substantial chance" is how it is usually interpreted.

MR BROWN: Yes, or "probable", as is said in Boughey, but I go on. Is it the experience of an ordinary judge, ordinary person, that a knife to the chest will necessarily kill? If that is - - -

GAUDRON J: That is not the test, "will necessarily kill". You are using words - - -

MR BROWN: "Are likely to kill"; I withdraw "necessarily kill".

GAUDRON J: Yes.

MR BROWN: If you accept the proposition that an inference is drawn from a premise and from a premise you go to a conclusion - and I would submit that that is what drawing an inference involves, establishing a premise, and then going to a conclusion - there has to be in existence a premise which would suggest that death is the likely result from stabbing. Now, where is that - - -

GAUDRON J: From stabbing to the upper part of the body.

MR BROWN: Yes. Before that inference can be drawn that premise has to be in existence. There has to be a premise which suggests that that is likely. Where does that premise come from? It cannot come from the fact that the act is in itself dangerous because that is not the test. It may be dangerous but it is not the test.

Can it come from ordinary experience? I want to submit that it generally cannot, and that it should not, and that the concept of ordinary experience is not enough to raise the inference, to permit the inference to be raised or drawn, because that premise is not right. I want to submit that it is not the experience of us, the people in this courtroom, that death is the likely result if you stab somebody in the chest. If it is our experience that that is the case - - -

GAUDRON J: You say "the likely". Why not "a likely"?

MR BROWN: Because if the test is subjective, at the end of the day I would submit - - -

GAUDRON J: That has nothing to do with subjective or objective. I am looking at the language of 157(1)(c) where the test is:

to be likely to cause death in the circumstances.

MR BROWN: Yes.

GAUDRON J: Now, you keep saying it is "the likely" consequence which seems to me to import notions of more probable than not, harking back to your use of "the probable" consequence. Now, I asked you why is it not sufficient that it is "a likely" consequence rather than "the likely" consequence.

MR BROWN: Because then we have to embark upon an argument as to how likely it is going to be. If it is a likely - - -

GAUDRON J: In Boughey it was said "a substantial chance".

McHUGH J: Which was interpreted to mean a real and not remote chance.

MR BROWN: That is right, which means that "a likely chance" may well be a remote chance. It has got to be actually "likely", "the likely chance", not "a likely one".

McHUGH J: It has to be "a real chance".

MR BROWN: Yes, that is what I am saying.

McHUGH J: If you stabbed somebody in the upper part of the body around the neck area, there is a real chance that you will kill the person.

GAUDRON J: Witness the outcome in this case.

MR BROWN: That is the problem, your Honour. If you look at the outcome and go backwards you will inevitably and always end up with the conclusion that it is highly likely, probable. Use any term that you like but you cannot start from the - - -

GAUDRON J: We will the terms used in 157(1)(c), "to be likely to cause death in the circumstances".

MR BROWN: That is - I am sorry - but I am merely submitting and suggesting that if you start with the proposition that death occurred, therefore, ergo, "it must be likely" is not the way the inquiry has to proceed because that means that every death, you would not have an inquiry about whether or not it was likely because the result would be preordained.

GAUDRON J: The question is, Mr Brown, whether it is "a likely consequence", as was said, or "a substantial chance", as said in Boughey, or, as you keep saying, "the likely result" and that does raise a significant difference in meaning.

MR BROWN: I agree it does, and for reasons that I have explained in my submission is that "a likely chance" could be a remote chance and that is not on. "A likely chance" can equate to "remote" just as well as "probable". But in any event, the word is "likely", so can we stick with it and ask whether or not it is within the experience of this Court, or any jury, to say that the ordinary experience is that death is the probable result.

GAUDRON J: That is not the test.

McHUGH J: That is probably - - -

MR BROWN: Sorry, death is a likely result, and I would submit that that is not within the province of either this Court or a jury, and if it is, to a point where you can say "My common experience is, my common knowledge, my common understanding, my common experience is that death is a or the likely result", then you have specialised knowledge. A prosecutor may be in a better position to tell whether or not death is a likely or the likely result perhaps than anybody else because they would see stab wounds presumably going through the office of the DPP all the time, a lot of which ends up being charged presumably with wounding or GBH and not intention to kill. A prosecutor may have some specialised knowledge. Maybe judges have specialised knowledge about that arising out of their experience from which they have a premise to which they can draw a conclusion. But I do assert that you cannot find under any circumstances that a jury would have that knowledge to permit them to draw that inference that a stab in the upper part of the chest necessarily means that death is a or the likely result, and that you cannot safely leave the jury with that inference open to them, is the submission I put to this Court.

McHUGH J: As a matter of fact this jury found that it was, so it seems the common experience of these jurors was that it was a likely chance.

MR BROWN: If that is the result and they arrive at that conclusion, which is why we are here, I submit, because they were not properly directed. You cannot just dump that sort of proposition on a jury and leave it to them safely and expect that a jury will necessarily come to the right answer. The whole complaint about this case is that this was simply dumped on the jury, that there was a general direction in terms of Boughey that never descended into the evidence and what the jury should make of it. Never ever was there an explanation to the jury of the importance of the necessity to descend into the evidence and understand whether or not it was subjective; it was just dumped on them. It is the error that we are complaining about that has led to this particular appellant being in front of this Court today to say it is not satisfactory, he has not got a fair trial, there has been an injustice on the basis that the jury could easily reach that inference but it is not within their capacity to be able to do it. It is not a fair and reasonable inference, an injustice.

I will go further and say that could a jury draw upon the existence of a body of work that says that stab wounds to the upper part of the chest are such that everybody knows of this body of work that says, "Yes, stab wounds to the upper part of the chest will likely result in death". I do not know of any such work. I would submit that a jury is unlikely to know of any such work if, indeed, it exists. Is it notorious that stab wounds to the upper part of the chest will likely result in death? I want to submit that if it is notorious, that it really should not be notorious because it is not something that you could arrive at as being notorious without having some evidence upon which to base that notoriety.

KIRBY J: Children learn in infant school that the heart is up there, that it is essential to life, and that if people they see on television or hear in stories are stabbed there, that is how they die - infant school.

MR BROWN: Yes, I agree with that, your Honour.

KIRBY J: So why is that not a matter upon which the jury can draw the inference of knowledge, knowledge in everybody, that we all share, that that is a very vulnerable part of the human anatomy.

MR BROWN: I accept that it is a vulnerable part and I accept that people understand that. It is elevating that proposition into the proposition that this person knew or ought to have known that death was the probable result, more likely - - -

McHUGH J: You keep saying "probable".

MR BROWN: I am sorry, it was the likely result.

KIRBY J: A likely.

MR BROWN: In accordance with the test in Boughey.

KIRBY J: "A likely" is softer than "the".

MR BROWN: Yes. It is the test in Boughey, at the end of the day, that that proposition has got to be put up against and your Honours have to be satisfied, and I will submit that your Honours cannot be satisfied, that it is likely - - -

McHUGH J: But it is not a question - it is a question to interpret Boughey and you are complaining about the jury having material dumped on them, the section dumped on them, without explanation. The term in Boughey is "a real chance".

MR BROWN: Yes.

McHUGH J: A real chance might be one chance in 20, one chance in 30. Surely anybody knows if you stab somebody around the neck area, the upper chest, that there is a real chance in that sense that death may result.

MR BROWN: Not death may result, that death will likely result.

McHUGH J: That there is a real chance that death will result.

MR BROWN: Yes. I do not want to get into an argument about the semantics of it. The propositions are set out clearly enough in Boughey.

McHUGH J: "Real chance" is a proposition that is set out.

MR BROWN: Yes, I accept that. But this is murder that we are talking about. You have to be satisfied beyond reasonable doubt in a murder trial that this person knew, or ought to have known, that death was a likely result. I am simply putting to this Court you cannot arrive there by inference; you can only get there by evidence. You cannot draw the inference in this case; you have to go to the evidence. I am submitting to this Court that the evidence is just not there and if it is not there you cannot convict. He should not have been convicted.

I suppose one of the problems is that when you have a perception that eventually brings the response from deep in the throat, "Yes, that's so dangerous that he ought to have known", which is the kind of response that you can get to somebody stabbing you in the chest, "Yes, ought to have known", you can almost raise that to the point of a presumption that, yes, they ought to have known that, and that is a danger because it is that very cry from deep in the throat that the courts are here to stop occurring. The court's role is to prevent that instinctive deep-throated cry from emerging and forming part of the judgment on any particular individual. You have actually got to get back to the evidence, that is what the courts are about. Do not go presuming these things merely because you happen to believe that they may be true, go to the evidence. So that when a person is convicted in this country, they are convicted on the evidence and they are convicted properly. It is in this case that I submit that that did not occur.

Again, in this case, "know" has effectively been taken away from the jury and I submit that it should have been taken away completely but I do take the Court's point that it had effectively been taken away which means - and that is the judgment of effectively the trial judge, and it is the judgment of the three judges of the Court of Criminal Appeal, that "knew" had been effectively withdrawn. That just cannot be ignored, the fact that "knew" had been taken away, because it means that there is an acceptance that this man did not know beyond reasonable doubt that death was the likely result. It could not be established on the evidence as a consequence of what the trial judge said and the Court of Criminal Appeal judges said, which means that we are only left with what he ought to have known.

Again, if you examine the proposition of what he ought to have known and look at the question of what could reasonably be inferred, again, I go back to my other submissions; you cannot infer that he ought to have known just from the evidence that exists in this case. Now, if the evidence was available that this man had some knowledge about knives which elevated his knowledge to something beyond that of just an average 21-year-old, one would presume that the combined forces of the police forces of New South Wales and Tasmania might have found that evidence and put it before the court, but it is not there. There is no special knowledge in this accused in terms of his knowledge about death being a likely result, as to whether or not he ought to have known that, no special knowledge at all.

One would presume that, in the context of a murder trial, for the most serious charge, if that evidence was in existence, it would have been found and it would have been placed before the court and it might have consisted of some of the things that I addressed this Court about yesterday, such things as: he ran around in a gang in New South Wales for six months and they all carried knives, and he saw heaps of people being stabbed. He knows what happens when you stab somebody in the upper chest. That evidence is relevant, absolutely relevant and certainly admissible. Does its probative value outweigh its prejudicial value? At the end of the day, its probative value goes to the heart of the question and you would have to say that evidence like that, if available, would be admitted. The fact that it is not there shows, in my respectful submission, the weakness at the end of the day in the Crown case.

McHUGH J: But how do you deal with your client's admission that is set out at page 286?

MR BROWN: Yes, I am coming to that, I am not avoiding the issue, I can assure your Honour. Can I come to that in just a moment because there is a couple of other issues that I would think conveniently should be dealt with on the way through to that proposition.

If we go back to this question of inference and whether or not the trial judge should have been alive to the fact that a jury should not be permitted to draw an inference that is unwarranted on the evidence, in other words, no evidentiary foundation, then in this case, of all cases, the judge should have been aware of that. I say that because of the evidence of the pathologist Lyons in this case. For that we have to turn to appeal book 1 at page 137. There is a lengthy description on that page by the pathologist of all the vital structures that exist in the part of the body that were struck. Then he goes on at the next page:

So the chances of actually striking and causing damage to a major structure are high. Do you want me to carry on and talk about the outcome of that as well?

And then he actually talks about studies of knife wounds, that:

The actual studies on the chances of knife wounds leading to death are very few. There has been very little published in the medical literature on the incidence of death.....Within the order of 3 to 5 percent of stab wounds taken from the whole body.

And then he talks about:

stab wounds that are sustained to the chest are those which have the highest incidence of being lethal.

Then he makes some observations about The Journal of Trauma, and further on records that knife wounds in 270 prisoners:

the injuries which were fatal were most likely to have been in the chest. There were 9 fatalities -

Probably "10 per cent chance", nine out of 51. I think he is actually talking about something like a 20 per cent chance.

Under cross-examination - and this is the point that I really want to make about the issue of public perception to say how a worrying public perception can be before a jury. If your Honours look at page 142 at line 7:

Well if we are talking in terms of interpretation of those statistics from a medical sense then what you are saying is true.

And the question was:

If it was a random blow not directed with any intent, mind or purpose, in terms of the whereabouts on the body is it they can really do some nasty things? If it was just a.....round-house assault or even a direct one, 90 percent is pretty high?

The comment is then:

If you are talking in terms of the general public's perception on whether a stab wound to this area is dangerous or not, I think there are two separate issues.

Really, what he is saying is that there is, in his mind, a distinction between public perception and what the published results of literature may be. If the public perception was actually such that it is likely that people will die as a consequence of a stab wound to the chest, then that is a perception that you cannot simply let people act upon by way of inference; you need some evidence. That issue was therefore before the court.

If we then look at what is left in terms of this case and dealing with what has been described as the admission - and I think your Honour Justice McHugh was talking about 286 of the transcript, that is what we are referring to.

McHUGH J: Yes, I was.

MR BROWN: Could I at this stage play the video that deals with that part of the evidence and I think it is also appropriate at this stage that I actually tender, or put into the Court, a copy of the videotape record of interview because, as I understand it, it is not open to the Court to act upon the transcript, that it really ultimately has to rely upon the record of interview, so I have been told. So I would simply put those - - -

GAUDRON J: I do not think you need to tender it. It was an exhibit below?

MR BROWN: It was.

GAUDRON J: Yes, that is - - -

MR BROWN: Yes, perhaps "handing it up" is the phrase I should be using, and I will do that now.

GAUDRON J: Yes, thank you.

MR BROWN: There are two videotape records of interview. One is P5 and one is P6 and I put them both in.

GAUDRON J: Why are we going to the video now?

MR BROWN: Because there is a description at page 286:

Yeah I did realise but I, I thought that it was probably around this area sort of, like from the arm to here.

I just did not think that it would make any sense to the Court unless the Court saw what the person may or may not have been doing. I am only going to be about two minutes. I am not playing the whole lot.

GAUDRON J: Yes, very well then.

MR BROWN: A couple of minutes is all I am playing which concludes with that part there.

GAUDRON J: Now, have you got it set up so that it will play that part?

MR BROWN: Yes.

VIDEOTAPE PLAYED TO COURT

GAUDRON J: Thank you.

KIRBY J: Perhaps it ought to be recorded that he did not just point to the arms; he pointed across the whole of the top of the chest.

MR BROWN: Yes, I accept that.

KIRBY J: And he pointed to both upper arms but then his hand moved across the whole of the top of his chest.

MR BROWN: Yes. Of course, when you look at this videotape record of interview, it all takes place in a context. What is the context? The first context is that this accused has freely and voluntarily, on the advice of his mother, been told to tell the truth and does so to the best of his ability. He is interviewed next morning, has not presumably spoken to any solicitor. We do not know that, but let us presume that that must be the case. He is hardly in a position to deny that if you stab somebody in the part where this person got stabbed, that it is likely to kill them because the actual result is there. He is being interviewed in the police interview room because of that fact.

Now, his state of mind was that he did not stab him in that part of the body, the part that was stabbed, he thought it was in the upper part of the body, in the arms. It is quite different to proceed on the basis that that necessarily will produce the result in his mind that death is the likely result than to suggest that he was deliberately aiming to stab the person in the place that he got stabbed. At the end of the day, if we examine the evidence of the pathologist Lyons, there is a substantial element of substantial bad luck as to what occurred in this situation. Now, as to whether or not - - -

KIRBY J: Especially for the victim.

MR BROWN: I accept that and I was not meaning bad luck just for the accused, because - do not presume, your Honour, with the greatest of respect, that in this case this accused did not, and has not, and does not continue to suffer from what can only be described as remorse. That issue is just not before the Court, but we cannot take the presumption that this is a cold, callous killer.

I would therefore want to submit that this question of what is described as an admission needs to be seen in the context of what was actually taking place and that it would be absolutely impossible for this person to deny that stabbing somebody in the part where this person got stabbed did not result in death, did not kill them. But, at the end of the day, his state of mind was, and it is consistent through the record of interview, that he thought he stabbed the person in the area that he indicated, the chest or the arm or something else like that.

Now, the jury is entitled to reject that proposition, but to reject that proposition they actually have to come up with an alternative proposition as to what did he intend, and that is that he actually intended to stab the person in the precise spot that was actually stabbed. That involves a quantum leap, a leap of faith, that really is not open to the jury in this case when you look at the facts. When the facts actually emerge, you see that what had occurred is that this person had been in a group which consisted of himself, his father, his father's girlfriend and another person, not called to give evidence by the Crown. They had been out to watch a band and then the accused had one Jim Beam and seven or eight Victoria Bitters, and "he is fairly drunk" is the description at page 289 of the transcript. Now, "fairly drunk" I do not use in terms of the sense as to the impact on his mind, but it is relevant to consider the fact that he had had these beers on his ability to be able to aim a knife with deadly accuracy - - -

GAUDRON J: That is not the test in the case; that is not even a relevant consideration. Go back to the terms of 157(1)(c).

MR BROWN: Yes, thank you. The context in which the jury could draw the inference under 157(1)(c) that this was a deadly assault, in other words, that the result sought was that he would hit the person where the person was actually hit - - -

GAUDRON J: That is not the test under 157(1)(c) either.

MR BROWN: No, or that death was likely and that death was likely because this accused knew or ought to have known that he was hitting the person in the spot that he was hit, is the only basis upon which I put it, is not really ultimately supportable by the evidence when the totality of that evidence is examined. This was clearly a spontaneous assault. The evidence quite clearly is that he ran across the road and struck the victim, and that is the evidence of all the people who watched this particular incident.

HAYNE J: There is no doubt that he did not stop and think; the question though at trial was: ought he to have stopped and thought and, if he had stopped and thought, would he have known or appreciated that the relevant act was likely to cause death?

MR BROWN: Yes, I accept that, but it is the issue of what flows from that. Clearly he did not stop and think and of course he ought to have done, there is no doubt about that and, if he had done, would his state of knowledge have been such as is necessary under section 157(1)(c). That brings us back to Boughey. You cannot arrive at a conclusion about that without looking at his subjective state of mind, and I submit that Boughey is right about that, because the alternative to Boughey, a subjective state of mind, a state of knowledge, is that discussed by Chief Justice Brennan in Boughey in which he raises the hypothesis that section 157(1)(c) is an objective test and therefore unique, and I respectfully submit that you cannot proceed on the basis that section 157(1)(c) raises an objective state of knowledge; it has got to be subjective. There is really no alternative but that it be subjective, because otherwise it is such a radical departure from the law as we know it and understand it that you would really have to contemplate why it was necessary to do that, and I simply want to submit that that is not the case.

It leaves me to submit to the Court therefore that in respect of this case that "knew" had been withdrawn from the jury and that as a consequence of that "knew" was never open to the jury, if you then look at his state of mind in terms of "ought to have known" and if you look at his actual state of knowledge, then there is a paucity of evidence as to his actual state of knowledge in terms of whether or not he ought to have known. The only evidence which may be capable of permitting a court to conclude that he ought to have known is presumably that on page 286, but I simply say to the Court if you look at that in the context of the record of interview, then it is a very qualified admission and it certainly is not an admission which is supported by any belief in the mind of the accused that he was aiming for the part of the body that actually caused the death.

Unless there are other matters that the Court wishes to examine, they are my submissions in this matter.

GAUDRON J: Yes, thank you, Mr Brown. Yes, Mr Bugg.

MR BUGG: Thank you, your Honour. Your Honours, I indicate in the outline of submissions that copies of photographs of the location of the injury would be made available to the Court. I do so aware of the fact that it is obviously a photograph of the deceased person, but it is important that your Honours understand precisely where the stab wound occurred on the body of the deceased in light of the description by the appellant as just detailed on the video interview. There are three photographs, your Honours, and I would ask that they be distributed.

KIRBY J: Perhaps it should be recorded that the wound is closer to the top right-hand throat of the deceased rather than the centre of the chest.

MR BUGG: That is right. It is just above the collarbone at the base of the neck. Your Honours, just in relation to the question of the level of intoxication of the appellant and his dexterity or capacity to control the direction in which the blow was delivered, the evidence at trial was that the pocket knife was opened as he moved across the road or street towards the deceased, but that he opened it one-handed, and the blade locks into position with a button on the back of the handle which has to be depressed before the blade can then be reseated into the handle, but the act of opening that blade one-handed is quite some challenge, and that was the evidence which he gave it at trial.

KIRBY J: What is the point you make out of that?

MR BUGG: Well, it has just been submitted to this Court that he had consumed alcohol and it could not be said that he had much capacity to aim the blow with "deadly accuracy", I think my learned friend's words were, but yet, by the same token, he still had sufficient manual dexterity about him to be able to open that blade one-handed as he moved quickly across the street, discarding his jacket as well, in the direction of the deceased. They are the only relevant submissions I would make or comments I would make in relation to the exhibit material.

Your Honours, I would confine my submissions to the outline which has been presented to the Court and draw your Honours' attention to the strict compliance with this Court's decision in Boughey in the way in which the trial judge charged the jury. That was certainly apparent from the transcript in the passages that are referred to on page 2 of the outline, paragraph 2.1 and 2.2, and the Court of Criminal Appeal accepted the compliance and the observation of those requirements by the learned trial judge.

Your Honour Justice McHugh yesterday raised with my learned friend that passage from the transcript of the video interview at page 286; that is referred to at paragraph 2.3. I would just ask your Honours to also examine a passage from the transcript of the video recorded interview at page 274, where, about a third of the way down the page, the appellant recounted to the police a telephone conversation he had with his mother.

Now, at that time he did not know the outcome of his unlawful act, so that to say that this is a retrospective view that one is seeing at page 286, that is that he knows that the deceased has died and he knows that the deceased has died as a result of the stab wound, the jury was quite entitled to take that answer into account in the process of not only rejecting his defence of self-defence and his account that he was defending himself or someone else, but also the suggestion that he had a vague idea of where he stabbed this person - he thought in the arm - because at about 5 o'clock in the morning when he telephoned his mother, having fled from the scene to his home, from his home to his grandmother's home by taxi, he then has a telephone conversation with his mother where he does not know what the consequences of the act were and he then tells his mother that he stabbed someone and he did not know if he had killed them or if they were in hospital.

If that was his state of mind, not knowing the consequences, the jury was, in my submission, entitled to give scant regard to the vague suggestions he was making as to his perception that he had stabbed this person in the arm, because there was, as I say in the outline of submissions, other evidence from bystanders - this is subparagraph (c) at the foot of page 3 - where there was clear evidence from people standing on the opposite side of the street that they thought that he had punched the deceased in the chin or the neck.

KIRBY J: Well, the stab wounds are towards the centre of the neck area; I mean, they are to the right, but - - -

MR BUGG: Yes, so, as the hand came down with the knife in it - sorry, he was right-handed and it is to the left of the centre line of the body of the deceased - - -

KIRBY J: Yes, you are quite right.

MR BUGG: They thought that he had punched the deceased either under the chin or near the neck.

KIRBY J: Yes, I have been saying on the right, but in fact that comes from the reversal of the photograph; it was on the top left-hand side of the deceased.

MR BUGG: That is correct. And the forensic pathologist's evidence of the measurement of the blade and the depth of the wound indicates the blade length was 7.5 centimetres, I believe, and the depth of the wound was slightly more, so the knife actually entered the body of the deceased by the length of the blade and part of, obviously, the small additional portion of the blade which is near the hinge.

The proposition put by the appellant that there was insufficient material upon which the jury could conclude beyond a reasonable doubt that the appellant ought to have known that when he stabbed the deceased that the likely consequences of a stab wound to that part of the body of the deceased was death - because there was just no evidence about what this 21-year-old had done with his life, where he had been educated, how well he had been educated, what he understood about stab wounds to that part of the body and so on - in my submission, overlooks the clear answer that he gave to the police, overlooks the state of mind he held without, it seems, any awareness of where he says he had stabbed the deceased and that is he thought he may have killed him or the person was in hospital.

Clearly the jury was entitled to draw inferences where it was not presented with any material to the contrary, namely, there was no suggestion from the appellant that he had any deficit of reasoning. And this is not a proposition that the onus of proof reverses, but surely if a person is to come before a court in a situation where he has not claimed any disability of reasoning or understanding, and say, "Well, no one's proved that I am without those disabilities - - -

KIRBY J: But Mr Cutter did not claim any disabilities of reasoning or understanding; there are some factual similarities. The Codes are where the issue is different in legal terms, but there are some factual similarities.

MR BUGG: There are.

KIRBY J: The Court in that case felt that an inference which was consistent with innocence of the prime charge was available, when we were looking at "intention" as distinct from "knowledge". Now why, by analogy, does not the same principle, as it were, the inclination of our legal system to inferences consistent with the less serious offence - why does that not apply in this case?

MR BUGG: Well, I suppose the only rational hypothesis test which was applied by the majority in Cutter was applied in the context of examining whether or not a specific intention, that is an intention to kill, could be inferred from all the circumstances and whether or not those circumstances were capable of embracing as a rational hypothesis some other alternative, and, of course, that was the conclusion of the majority, that the appellant in that case may have struck out in anger and frustration at his predicament and plight and not with any intention to cause fatal consequences.

Here, of course, the legislation itself deals with that very situation, that is, it is not a situation where a specific intent has to be proven and proven by inference from all the surrounding circumstances but rather that, in the circumstances in which the appellant finds himself placed, if he had stopped to think, ought he to have realised that his act was likely to cause death, even though he may have had no intention to do so, and therefore the rational hypothesis consideration of the majority in Cutter which resulted in the outcome and that it did, whilst it gives some guidance or assistance, I suppose in an assessment of whether or not the Court of Criminal Appeal in this case acted correctly in rejecting the appellant's approach to it, in my submission, it does not sit on all fours because of that very grave distinction between the proof of a specific intent and a statutory provision such as section 157(1)(c).

The appellant has not joined issue with the statements of principle contained in Your Honour Justice Kirby's report of judgment and, in my submission, when - - -

KIRBY J: Yes, but I was in dissent and I am anxious to ensure that I do not continue straying in the dissenting path, on that matter anyway.

MR BUGG: Well far be it for me, your Honour, to try and induce you to do so, but the issues of principle that are contained and outlined in your Honour's report of judgment and in particular those at page 647, in my submission, embrace the very situation which the jury had here, and no error of direction or application of appropriate principle by the trial judge can be shown, in my submission, when one looks at that in terms of any inference from the surrounding circumstances which the jury was entitled to draw in this case.

KIRBY J: Can I just ask you: is there any provision in another Code, in either Western Australia or Queensland, similar to this or is it unique to Tasmania?

MR BUGG: It is unique to Tasmania.

KIRBY J: Is there any historical material as to how it came into the Tasmanian Code?

MR BUGG: It came into the Tasmanian Code as a result of the draft Code flowing from the Royal Commission in the United Kingdom in the late 19th century. The provision in the draft Code was not an unlawful act but an unlawful object, so that - - -

KIRBY J: Well, that is rather close to intent, is it not - "object", "intent"?

MR BUGG: Well, "object" was broadly interpreted in the covering report by the commissioners attached to the draft Code - I am sorry, your Honour, I do not have that with me - but your Honours will find that that provision, that is, unlawful object as opposed to unlawful act, is within the Canadian Code, which of course comes from that source as well, and the difference, that is, "object", does create some slight distinction between the decided cases obviously in Canada and here. But the issue in terms of the test, be it objective or subjective, of course in this State flows from this Court's decision in Boughey. So the historical material - I do have a copy in Hobart - - -

GAUDRON J: How exactly does the Canadian Code read on this provision? Have you got - - -

MR BUGG: I am sorry, if I could just obtain section 157. Do your Honours have a copy of section 157(1)(c) before you?

GAUDRON J: Yes.

MR BUGG: Yes. The provision in Canada reads, as follows, that:

culpable homicide -

Well, it does not quite say it in those terms, but it said:

murder if it is committed -

(c) by means of any unlawful -

object -

which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death -

KIRBY J: "Object", does that mean physical object or - - -

MR BUGG: The commissioners in their report accompanying the draft Code said that by "unlawful object" they intended an unlawful purpose; that is, if someone was setting about an unlawful purpose and they differentiated "unlawful object" from "unlawful act" such as an assault to the body of a person who has died, but an unlawful object such as trying to remove a firearm from someone which discharges and kills them, or robbing a bank, an object the progress towards which is unlawful. In my submission, it really does not assist the Court because it does not shed any further light on the test, that is, the subjectivity of the test, which must be applied in considering what the - - -

GAUDRON J: Well, that is not an issue really, is it? It is the sufficiency of the evidence to ground an inference, is it not?

MR BUGG: Yes. And, as I say in the outline, once again, and it really mirrors what Justice McHugh said yesterday afternoon, that in fact there was sufficient evidence before the jury to ground a conviction under the first limb of section 157(1)(c), that is, "knew was likely to cause death", and his answers to the police at interview are sufficient, in my submission, to establish that. So that, if anything, the direction in which the trial moved was more than favourable to the appellant. I have no other submissions.

HAYNE J: Just before you sit down, Mr Bugg, can I take you back to page 274 and the passage in the record of interview that you first took us to. I understood you to say that the conversation with the mother occurred at a time when he did not know what had happened.

MR BUGG: I am sorry, yes.

HAYNE J: Is that right?

MR BUGG: My learned junior has just pointed something out to me, your Honour, and - - -

McHUGH J: Further down the page - - -

MR BUGG: Yes, I certainly - if I may just consider that, I am sorry.

HAYNE J: On reading it it seems to me that he had been told by Janita, when he was at 30 Waroona Street, that there was at least a possibility of death, if not Janita telling him that he had died.

MR BROWN: While my learned friend is just considering that, if your Honour would care to look at page 271, the evidence is quite clear that he went from the scene of the crime to Waroona Street, so that there was no other possibility of intervention. I mean, he actually knew at Waroona Street where this phone call took place and Waroona Street popped up at page 271:

Before we go any further in relation to that, so you've from, you ran down York Street and you eventually went home to Waroona Street?

And it is at Waroona Street that he gets that information.

MR BUGG: I am obliged to my learned friend and to your Honour. I am sorry, I certainly did not seek to mislead the Court in relation to that, and I included it in the outline of submissions as specifically as that, but I accept that certainly on the interview it would appear that the appellant had had a conversation at a stage prior to the conversation with his mother, and certainly that would seem to indicate a basis of knowledge after the event and I accept what your Honour says.

GAUDRON J: Yes, thank you, Mr Bugg. Anything in reply, Mr Brown?

MR BROWN: Only one very brief matter. Having cleared up that point about the telephone conversation, in terms of historical material there is some assistance to be obtained from the judgment of Justice Brennan, as he then was, in Boughey at page 45, where he points out that this provision came from the draft Code of 1879 and the fact that it was criticised. For that he relies on Russell on Crime at page 45. So Russell on Crime at page 45 I believe will give your Honour in all likelihood the historical references that you may seek, and that is - - -

KIRBY J: Yes, I noticed that after I had asked Mr Bugg the question.

MR BROWN: That aside, I have no other submissions, if the Court pleases, and that is the appeal.

GAUDRON J: Yes, thank you, Mr Brown. The Court will consider its decision in this matter and adjourn until 2.15.

AT 11.03 AM THE MATTER WAS ADJOURNED