Johnson v The Queen P35/1999 [2000] HCATrans 178 (14 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P35 of 1999

B e t w e e n -

KENNETH CHARLES JOHNSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 2.53 PM

Copyright in the High Court of Australia

MR I.L.K. MARSHALL: May it please your Honours, I represent the applicant. (instructed by Leonard Cohen & Co)

MR R.E. COCK, QC: May it please your Honours, with my learned friend, MR G. MIGNACCA-RANDAZZO I represent the respondent. (instructed by the Director of Public Prosecutions (WA))

GAUDRON J: Yes, thank you.

MR MARSHALL: Your Honours, there is a preliminary or threshold matter, the Order 69A rule 3(2). What I need there is the compliance with this sub-rule be dispensed with. The appeal papers were lodged 19 days late.

GAUDRON J: Yes. If you would put your substantive arguments and we will deal with that later, if need be.

MR MARSHALL: Thank you, your Honour. Your Honours, there really are six points I want to make, and I will make them briefly. The first point concerns inconsistent verdicts. There were four counts of attempted murder and there were convictions in relation to count (2) and count (6). There were verdicts of not guilty of attempted murder on counts (1) and (4). And the fundamental submission is that, really, on the facts of this case, there should have been four convictions for attempted murder, or four acquittals for attempted murder.

The only rational verdicts on the facts of the case were four of one or four of the other, because no reasonable jury could have arrived at the verdicts that they did. In fact, the verdicts - there were convictions, as I say, on counts (2) and (6) for attempted murder. On count (1) there was simply a finding of not guilty. There was no alternative verdict. But on count (4) there was an alternative verdict, which was count (5) on the indictment.

HAYNE J: Your client, Mr Marshall, might have had a merciful jury when it came to the point of considering the last count on which your client was convicted.

MR MARSHALL: That is certainly one way of looking at it, your Honour. The other way, of course, is that if the verdicts do not hang together, whether it is merciful or whether they were too hard, is neither here nor there. We say that - - -

HAYNE J: But the Crown case against your client for attempted murder was very strong, was it not? Leaving the premises announcing "I'm coming back to kill youse all", and then driving a car at high speed into a group of people seems to me to be a reasonably strong Crown case for attempted murder.

MR MARSHALL: I think, your Honour, having seen the affidavit material about Mrs Kearney, who recanted on her testimony, there are four affidavits. The one from the solicitor, the applicant himself and the applicant's parents, and Sharon Kearney is not able to - she really - you will have seen from when she was questioned at page 8 of the application book that this, what your Honour has raised about coming back to kill us all. At page 8 at the letter D:

Ken just mumbled some stuff and walked off.

What did he mumble, Mrs Kearney?---He said, he said that we were all wankers and I didn't hear the rest.

And then the Crown Prosecutor said:

Mrs Kearney, do your best for us. Did he mumble it?

And then she answered:

He said that he was going to come back and kill us all.

Now, the affidavit material reveals that, whilst there was some talk along those lines, she did not have any independent recollection of that. So the strength of the Crown case is certainly well whittled away by the very fact that she is someone who really could not say that she heard that said. And that raises the question of the way the Court of Criminal Appeal dealt with this situation. When faced with the affidavit material, essentially the Court of Criminal Appeal said, "Well, it is fatal to you. You do not have an affidavit from her". Well, the evidence on affidavit was that Mrs Kearney would not give an affidavit - - -

GAUDRON J: Let us assume you had had an affidavit. Would it have been admissible under the fresh evidence principle?

MR MARSHALL: It would have been admissible, your Honour, in the Court of Criminal Appeal. The coercive power of the court is found in section 697B of the Criminal Code. The investigating officer, or rather the inquiry agent went out to see her. She refused to speak to him. There is a letter from her solicitor to the effect that she did not want to talk. But she had talked to the solicitor for the applicant. She had talked to the parents of the applicant confirming that, really, that was not said. She did not hear him say it. And so vital evidence was retracted. And that is why I say that it is simply a very important point from the applicant's point of view, because it is certainly rough justice to not be able to get the court to use its coercive power when a witness would not come along.

GAUDRON J: But you did not answer my question. My question was, assume there had been an affidavit, what would have followed?

MR MARSHALL: What would have followed - - -

GAUDRON J: Would it have been fresh evidence?

MR MARSHALL: It is a witness recanting on what they said at trial. And in any criminal case on appeal, where a witness recants, it is certainly a factor which the Court of Criminal Appeal can take on board. But our complaint, as I say, is that the Court of Criminal Appeal did not satisfactorily deal with it. They really said that, at page 89 of the book, without an affidavit from her then there is not a point. But we could not get an affidavit. There was an impossibility to get the affidavit. At page 89 his Honour said, at line 15:

Finally, ground 7.....This ground was based on material in affidavits by the appellant....The difficulty that the appellant faced in regard to this ground was that no affidavit by Mrs Kearney was put before the Court.

We could not get one, and that is our point, and that is why we say it is certainly not satisfactory. There is a coercive power in the court and the court was asked to exercise that, but refused.

If I could just move on to my next point. There was a non-direction about reckless indifference. Now, this case was put on the basis of a choice between an intention to kill on the part of the applicant, or accident. And your Honours will only need to look at page 48 of the book when you see an example of how it was, that his Honour at line 15 said:

There is no real dispute about the injuries sustained by Christine Perry, in fact no dispute at all, or about those sustained by Danielle and Travis Perry. The real questions, as I have said to you, relate to the intention of the accused man at the time and the question of whether what took place was, as he said, an accident.

Now, what we say is: that is by far too narrow an analysis of the case, and one only needs to look at Alister v The Queen which is referred to in the submissions - and I rely on what is said there. That was an Ananda Marga bombing case - not the Hilton bombing case, but a house bombing. The jury in this case, as in the case of the applicant, were not told that before they could convict of attempted murder they had to be satisfied beyond a reasonable doubt that the applicant was not acting with a reckless indifference to the possibility, or even probability, that death would be caused by his motor vehicle colliding with a person in the yard.

HAYNE J: But the Crown case against your client at trial was that he went there and drive his motor car with the specific intention of killing one, or any, of the people who were on the patio. That was the way the case was run at trial, was it not?

MR MARSHALL: No, your Honour. Could I just, with the greatest of respect, refer you to the opening of the Crown - and there is only part of it there - but at page 5 of the book at the letter D - - -

GAUDRON J: We have lost contact. I think we will adjourn briefly and call for technical assistance.

AT 3.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.11 PM:

GAUDRON J: Yes.

MR MARSHALL: I was in the process of answering Justice Hayne's question and I was about to - - -

GAUDRON J: Yes. Before you do that, Mr Marshall, we will tell you that in view of the break we will give you some little latitude with time.

MR MARSHALL: Thank you very much, your Honour. The analysis that you have just put to me, Justice Hayne, as to the Crown case, unfortunately the entire opening is not in the application book, but at page 5 at the letter D there is reference to the fact that:

potentially anyone in that backyard could have been a victim and potentially anyone in that backyard could have been named in a charge but we have confined ourselves for practical reasons to those who were actually injured.

So it is not a question of limiting it to the patio, although Justice Ipp in his reasons - and this is the complaint that we have - he sought to explain the verdicts and to say they were not inconsistent on the basis that the persons that actually were the subject of the charges were in the patio area. We say that that was a totally artificial division to make, and it was certainly not the way the Crown opened it.

The Crown opened it rather in the nature of a bomb exploding and killing and injuring people. And it is an unacceptable rationalisation or justification, we say, to say that it was simply a case of the people in the patio were the ones that were the subject of the incident. My point then is that it is far too narrow a view to simply put it on the basis of accident and intention because it was, at all times, as I have referred to your Honours - - -

GAUDRON J: How does that advance your case? Left on the basis of accident or intent to murder, and the jury was clearly instructed to convict only if they found one or other of the necessary intents?

MR MARSHALL: And that is why, your Honour, I say it is too narrow because there is the third position which was totally overlooked, and Alister's Case was a bombing case and his Honour Justice Gibbs, at the time, pointed out that it was necessary that the jury be told about this question of reckless indifference, because reckless indifference falls short of there being an intent to kill, and consistent - - -

HAYNE J: And thus, if reckless indifference had been left to this jury, your client might well have gone down for attempted murder on every one of the counts, might he not? That is the consequence of the argument, it seems to me.

MR MARSHALL: No. The result of reckless indifference, your Honour, is this, that you bring into play criminal negligence. If someone has bodily harm, or grievance bodily harm, they get convicted of that. They do not get convicted of attempted murder and that is my very point, and it pays visiting Alister's Case to see just that point. And your Honour has really exposed the point there, because if the circumstances are reckless indifference, then the criminal liability arises for what has been done to them by reason of criminal negligence.

It is not the case - the law of Australia is not, in this Court, they set it out very clearly - the law of Australia is not that you are an attempted murderer if you act with reckless indifference to the possibility, or even probability, that death might occur by your conduct. Reckless indifference to the probability of death does not equate to an intent to kill, and that is the reason that it is necessary to have a look at Alister's Case. And that is the reason why we say - and it really adopts the decision of Whybrow in the UK case. So that is a vital point from the applicant.

Your Honours, the other points that I wanted to make, there was the question of the applicant's complaint about the conduct of counsel at the trial, and those instructions were not complied with, et cetera. Now that is referred to by the Court of Criminal Appeal at page 87 of the application book and there, again, a practice direction is laid down by the Court of Criminal Appeal and it is a practice direction or procedure laid down. It is not one that has been laid down before and because, as it is said at line 35, no attempt was made to obtain the version of the barrister concerned:

He had no opportunity to put his version to the Court. In my opinion, this omission is fatal -

GAUDRON J: Let us assume all that is in your favour. What is there anywhere to suggest other than that, counsel took a number of tactical decisions in the exercise of his professional judgment?

MR MARSHALL: The material reveals that he acted contrary to express instructions. That was the problem that the applicant had. He gave express instructions about calling witnesses. He gave - - -

GAUDRON J: Yes. That does not answer my question.

MR MARSHALL: I am sorry.

GAUDRON J: My understanding in these matters is that you are not bound by all and single of your client's instructions. You exercise a professional judgment.

MR MARSHALL: Yes. I do not disagree at all with that proposition. But what I am simply saying is that, on the material, and we seek an opportunity to ventilate it. We simply cannot be put out of court, we say, because we have not complied with a recently produced practice direction put in the judgment. Our point is that we should not be prevented, or the applicant should not be prevented, from putting his case simply because this recent practice direction is put forward.

GAUDRON J: But, it seems to me, there is a more fundamental difficulty than that. You did not make any case in this regard. There was no foundation for any case in this regard.

MR MARSHALL: Your Honour will have seen the affidavit of the applicant about it and I simply rely on that, because it does set out the shortcomings that were there. But the procedure which was set out by the Court of Criminal Appeal, rather in the way a procedure is set out in relation to the evidence of Mrs Kearney, it leaves a grave sense of injustice to an applicant when he is told that he is out of court because this is the practice from henceforth, and he has not been given an opportunity.

HAYNE J: Were the subject matters of his complaint those that are dealt with in paragraphs 50 through to 56 of Justice Ipp's judgment?

MR MARSHALL: Your Honour, I am sorry I cannot confirm that without going in detail through the affidavit. But I think it would probably be reasonable to say they are the main complaints, but without going to the affidavit I cannot be more precise about that.

Your Honours, if I can just move on to two further points, and they are these. We are a Code State, as you are well aware. There was no direction on attempt and section 4 of our Criminal Code directs what an attempt is. At page 41 of our application book, the directions to the jury, his Honour, in paragraph 2 dealt with "attempt" and it did not bear a great deal of resemblance to what is in section 4 of our Criminal Code. In the same way he dealt with the word "unlawful". Now that is defined in section 268 of our Criminal Code. That defines unlawful killing:

as a killing which is not authorised, justified or excused by law.

Now, it may be said these are not particularly significant special leave points. But we are a Code State. The fundamental building blocks of a judge's charge is the Code, and it is incumbent on a trial judge, we say, to direct the jury in the terms of the Criminal Code.

HAYNE J: Is that right, or is the fundamental task of a trial judge to instruct the jury of so much of the law as they need to resolve the issues in the case? And this case seems to have been fought on the basis of accident or intent.

MR MARSHALL: Your Honour, it is right, and I do not disagree at all with the proposition that the judge has to direct the jury on the law. The law in Western Australia is comprised in the Criminal Code and it must be from there that the common law, codified in 1913 as it was, it is from there that the trial judge source material is in relation to attempt and in relation to what is unlawful.

So your Honours, the final point I have relates to the convictions on counts (2) and (6) for attempted murder and what I say there is that we have a situation where there were totally inadequate directions on the alternative verdicts and our point is that if properly directed on the alternatives, it may well have been that a jury found one of them. But how can one with safety, say "All right, they were not properly directed on what criminal negligence was, they were not properly directed, there were flawed directions" - and I think the Crown conceded there were flawed directions on the alternative verdicts in the Court of Criminal Appeal. We say the result from that is that it could not be said that the verdict actually handed down was safe, because the proper choices have not been given to the jury.

So, the verdicts on counts (2) and (6) cannot stand in the face of totally inadequate directions on the alternatives, the alternatives being what the learned trial judge described as the unwritten alternatives, the grievous bodily harm by reason of criminal negligence and the dangerous driving causing grievous bodily harm by reason of section 59 of the Road Traffic Act. Your Honours, I realise I am out of time. But they are, your Honours, the submissions that I seek to make. They are important matters and it is not something which can, in my respectful submission, simply be swept aside. Thank you.

GAUDRON J: Thank you, Mr Marshall. We need not trouble you, Mr Cock.

In this matter, the substantial issue at trial was whether the events which led to the charges against the applicant occurred intentionally or by accident. There was ample evidence on which the jury could find that the applicant drove his car intentionally at the person seated on the patio and thereafter at those in the backyard. There was ample evidence on which they might find that in both cases the applicant was possessed of an intention to kill. In those circumstances, we are not convinced that the applicant's convictions involve a miscarriage of justice.

Nor is it apparent that the applicant's counsel conducted his defence other than on the basis of tactical decisions made in the exercise of his professional judgment. Further, we are not convinced that the Court of Appeal erred in refusing to act on the affidavit evidence tendered on the hearing of the appeal. It follows that the matter is not one appropriate for the grant of special leave. Time will be extended, but the application for special leave to appeal is refused.

The Court will adjourn now until 2.15 pm on Tuesday, 18 April, in Sydney. After the Court adjourns, the chamber matter will proceed.

AT 3.26 PM THE MATTER WAS CONCLUDED