Cramp v The Queen S256/1999 [2000] HCATrans 470 (15 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S256 of 1999

B e t w e e n -

WILLIAM PETER CRAMP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 15 AUGUST 2000, AT 2.40 PM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR B.H. HUGHES, for the applicant. (instructed by McClellands)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Your Honours, there are two substantive points raised in this case. The first concerns the conviction of the applicant as an accessory. He was charged with one count of manslaughter but, as is made plain by the table set out on pages 2 and 3 of the application book, what is described as an aide-memoire, the case was put to the jury on two discrete bases: one on the basis of gross negligence; one on the basis of unlawful and dangerous act.

GAUDRON J: So this is really alternative bases for feloniously.

MR TOOMEY: Yes, your Honour. He was not the driver and so the basis of the unlawful and dangerous act was that he aided and abetted the dangerous acts.

GAUDRON J: Which dangerous acts?

MR TOOMEY: Your Honour, the dangerous acts contended for by the Crown were driving negligently, furiously or recklessly or at a speed or in a manner which was dangerous to the public while under the influence of alcohol. But as will appear, we say that the jury cannot have been unanimous on any one of those. But that is the second point. The first point is whether a conviction could have been available at all of the applicant as an aider and abetter in circumstances where the person he was said to aid and abet killed herself and could not have been guilty - could not have been amenable to a charge of manslaughter.

GAUDRON J: He is not charged for aiding and abetting manslaughter, he is charged for aiding and abetting dangerous driving while under the influence.

MR TOOMEY: Yes, your Honour, with respect, that is correct.

GAUDRON J: There would have been no difficulty about charging and convicting the deceased, had she lived, of that charge, would there?

MR TOOMEY: Of each of those charges, your Honour, yes.

GAUDRON J: Let us just leave it with dangerous driving whilst under the influence.

MR TOOMEY: Yes, indeed, your Honour, that is correct. But the matter has been dealt with recently by this Court in Osland. It has been decided by the Court in Matusevich where a person was acquitted of murder on the grounds of insanity but the person who had formed a common purpose with him to murder before his insanity was convicted of the murder. But our argument is that one may be convicted of a crime which the principal person is acquitted of, or is convicted of a lesser crime, by reason of some defence personal to the principal.

GAUDRON J: But that does not apply in this case, does it? This case is in a different area of discourse.

MR TOOMEY: We say no, your Honour.

GAUDRON J: The conviction is for manslaughter. He is not charged by reason of aiding and abetting in manslaughter. He is charged as principal. The question is whether there are facts that bring him within the notion of feloniously and it is said that he is that because he aided and abetted another offence. That is one ground. Then you do not get into the common purpose area, the Matusevich and Osland area, in this case, do you?

MR TOOMEY: Your Honour, if we do not, then he is an accessory.

GLEESON CJ: We only get into this area because of the concept of unlawful and dangerous act, do we not?

MR TOOMEY: Yes.

GLEESON CJ: We are concerned with whether his conduct was relevantly unlawful.

MR TOOMEY: Yes.

GLEESON CJ: Why could not his conduct be unlawful if he aided and abetted her to engage in drunken or reckless driving?

MR TOOMEY: Your Honour, it could, but if he is merely an accessory, if he is an accessory to the - we concede in our submissions he could have been charged and convicted as an accessory to dangerous driving, drunken driving - - -

GLEESON CJ: Yes, it is not alleged that he was an accessary to homicide or suicide.

MR TOOMEY: No. But it is alleged that he is an accessory to all these matters which have a certain effect. Our point is that he cannot be convicted of the manslaughter as an accessory to these other matters unless the person who was the principal in these other matters could also have been charged with manslaughter. There might have been some personal defence to the person, but there is no case we have been able to find in which a person has been convicted of an accessory in respect of a crime - an ultimate crime of which the person to whom he or she was accessory would not have been amenable; that is not not convicted, but not amenable.

GLEESON CJ: Tell me, is actively encouraging an underage person to get drunk and drive a motorcar at high speed unlawful?

MR TOOMEY: Yes.

GLEESON CJ: Well, that is the unlawful act, is it not?

MR TOOMEY: Yes.

GLEESON CJ: And it is also dangerous.

MR TOOMEY: Yes. That is the point, your Honour, but there is another point. If your Honours are against us on that point, it is a short matter, but if I can turn to the other point which is not short and can I hand to your Honours a schedule which sets out the comparative bases of the two ways in which the charge was put.

Your Honours, the case took a somewhat curious turn. The judge addressed the jury on the basis that if they were satisfied of any of the matters in either of these tables they could convict. Counsel for the accused at the trial asked that the jury be told that they must be unanimous on one or the other. The learned trial judge refused to give that direction. He then said to the jury, "When you come back, if you find the accused guilty, I will ask you whether you found him guilty - whether you were agreed, whether you were unanimous on one of the bases, gross negligence or unlawful and dangerous act and, if you were, you need only say yes. If you were not, you will say to me, `We cannot tell you'." The jury went out and came back some hours later and entered a verdict of guilty. The judge then asked them, "Did you all arrive at the conclusion by the same means?" and the foreman said, "We cannot say, your Honour." In other words, on the dictionary that had been given him by his Honour, we were not unanimous on either of them.

Now, the applicant says that there are clear ways in which some of the jury could have been satisfied of guilt on a particular of guilt and some on another particular of guilt. In fact, logically, the only way to reconcile the verdict is that those who were satisfied of gross negligence founded on the seat belt particular, which is particular 1(iv), and that those who founded on the unlawful and dangerous act founded on the negligence.

GLEESON CJ: Why do you say that?

MR TOOMEY: For this reason, your Honour. If the people who found unlawful and dangerous act had been satisfied of the first particular of gross negligence, then that is duplicated in both gross negligence and unlawful and dangerous act. So there would be no reason for a division in the jury on that matter. If the members of the jury who found gross negligence were satisfied the accused had permitted the deceased to drive his car at high speed, then there is a parallel particular in unlawful and dangerous act, so there would be no division on that. If the gross negligence people had thought the applicant permitted the deceased to drive his car dangerously, there was a parallel particular on that. But the particular of gross negligence that he permitted the deceased to drive his car while she was not wearing a seat belt had no parallel in the unlawful and dangerous act, and the particular that he aided and abetted the deceased in driving negligently, furiously or recklessly had no parallel in the gross negligence.

So, logically, what is apparent is that the jury must have found on the two bases which are disparate, otherwise they would have been unanimous on one ground or the other.

GLEESON CJ: This seems to add something of a risk to the Crown particularising.

MR TOOMEY: Your Honour, what it adds a risk to is, I suppose, the inquisition of the jury.

GLEESON CJ: That is a well known risk.

GAUDRON J: Both of those raise the question, does it matter in this particular case? The charge is feloniously slay; manslaughter, as we say generally. The unanimity has to be on feloniously slay and it does not have to be about the means by which people arrive at that process.

MR TOOMEY: With great respect, your Honour, that is true, but it does not go far enough. In this case there are explanations of why some members of the jury might have rejected every one of the grounds of gross negligence. In those circumstances, some of them were satisfied of gross negligence, and it has to be of a particular kind that they were satisfied of - - -

GLEESON CJ: But there is another possible explanation, Mr Toomey. They might have found it too easy. In other words, they might have picked up that document and just looked at one of them and said, "That will do me. I do not need to look any further than that."

MR TOOMEY: Your Honour, they were told - if you have a look at the schedule, your Honours, starting at page 2 of the application book, you will see down the bottom it is said:

If you are satisfied beyond reasonable doubt of the existence of the 4 constituent elements specified above you should find the accused guilty of feloniously slaying Emma Jane Long and no further deliberation is necessary.

If you are not satisfied of any one or more of those 4 constituent elements you should then consider the following matters:

GLEESON CJ: Now you are on a level of particulars which are all within constituent one.

MR TOOMEY: Yes.

GLEESON CJ: What I am suggesting for your consideration is that a possible reason why the jury might have not been unanimous is that they all found it very easy to identify one of those particulars which they were prepared to accept and did not feel the need to look any further; indeed, having been told they need not look any further.

MR TOOMEY: Of course, your Honour, that would be contrary to their instructions and - - -

GLEESON CJ: In relation to particulars as distinct from constituents?

MR TOOMEY: Your Honour, can I just deal with this suggestion that it does not - - -

GLEESON CJ: Could I just draw your attention to the words "included one or more of the following" in paragraph 1. All they had to do was find one.

MR TOOMEY: Yes. But some of them did not. Some of them did not find any of them. We know that because we know that they were not agreed. In our respectful submission, it must be apparent that had the jury been able to agree, had they been able to be unanimous on one or other of these bases, they must have done so.

GAUDRON J: Let us ask the other question whether it was necessary to include if you are satisfied beyond reasonable doubt, or if you are not satisfied on any one of these four constituent - why could it not have been said manslaughter, leave out by gross negligence, "William Peter Cramp engaged in conduct which included any one or more of the following, (i), (ii), (iii), (iv), (v)" and then bring in "(vi), aided and abetted the deceased in driving" et cetera. Would that not have been sufficient? Forget about turning to the others. Any one of those, would that not have constituted manslaughter?

MR TOOMEY: Your Honour, a finding on any one of those could have constituted manslaughter, although we will have something to say about the inclusion of negligence simpliciter under unlawful and dangerous act. But the fundamental basis of a conviction is that 12 members of a jury have agreed that you are guilty of facts proved by the Crown.

GLEESON CJ: But if the Crown finds itself, as it may have done in the present case, confronted with an embarrassment of riches as to particularisation of the felonious conduct of the accused, on your approach that not only heightens the possibility of lack of unanimity, it makes it highly probable.

MR TOOMEY: Your Honour, with great respect, our point is not that. Had there been only the one count with a number of particulars we could have had no complaint. But the fact is that here there was a basis on which the members of the jury who found on the unlawful and dangerous act could have rejected every one of the gross negligent charges. I can, I think, logically explain to your Honours why that is so because in respect, for instance, of the speed, the judge told the jury that evidence of the speed and manner dangerous at the time of the collision was virtually nonexistent. That is what he said at page 86 of the application book.

In respect of alcohol the judge, at pages 25 and 83 pointed to the only truly independent evidence as to the state of the deceased which was that of an experienced barmaid who said that she saw the girl within an hour of her death, that her breath did not smell of alcohol and she showed no sign whatsoever of being affected by alcohol but that the applicant was, in effect, stumbling drunk.

GLEESON CJ: Did not the deceased have a blood alcohol content of .167?

MR TOOMEY: She did. But the jury may not have been satisfied that that was accurate. This woman saw her, within an hour of her death, said her breath did not smell of alcohol, she showed no sign whatsoever of being affected by alcohol. The jury may well have said, and it is entirely a matter for the jury, "She could not have been .167. That must be wrong."

In respect of the manner dangerous the judge, as I have said to your Honour, told the jury that evidence of driving in a manner dangerous at the time of the collision was virtually nonexistent. As to the failure to wearing a seat belt, the evidence, the jury may have thought, was unsatisfactory. It was very slight. There was no evidence presented to the jury of any causal nexus between the failure to wear a seat belt and any injury suffered by the deceased and the jury may have thought it was not, in any event, gross negligence, because the judge gave the jury the classic direction as to what constituted gross negligence. It had to be not just a minor infraction.

GLEESON CJ: Now what if, instead of engaging in any of the process of reasoning you have just described, an individual juror had said, "I need to look no further than particular 1(ii), "Aided and abetted the deceased to drive at a speed dangerous to the public."?

MR TOOMEY: I am sorry, your Honour.

GLEESON CJ: If a juror had said, "I am perfectly satisfied about one of those particulars of unlawful and dangerous act. I am not going to go through and consider and reject the particulars of gross negligence. I just stick with my view about driving at a speed dangerous to the public."

MR TOOMEY: If that were so it is, in our respectful submission, inconceivable that he would not have agreed with the other members of the jury that the accused was guilty of manslaughter by gross negligence because he permitted the deceased to drive his car dangerously.

GLEESON CJ: Why would he need to think about it?

MR TOOMEY: Because the Crown chose to charge him on two separate legal bases. That is why, with respect, they had to look at it. And one must try and make sense of the verdict. I mean, it is an answer to say the jury may have behaved illogically, but if they behaved logically then, in our respectful submission, an examination reveals that the only basis for the division in the jury was that some were satisfied of the failure to wear a seat belt and thought that that constituted gross negligence and some, having rejected all of the gross negligence heads, were of the belief that he was aiding and abetting her in driving negligently, no higher.

GLEESON CJ: Thank you, Mr Toomey. We do not need to hear you, Mr Blackmore.

In relation to the particular matter concerning unanimity that has been raised by senior counsel for the applicant, the Court is not satisfied that there was any relevant lack of unanimity in the present case.

In relation to the other aspects of the application for special leave to appeal and in relation to that first aspect that has already been mentioned, the Court is not satisfied that this is a case in which there has been any miscarriage of justice. For those reasons, the application is refused.

MR TOOMEY: If the Court pleases.

AT 3.01 PM THE MATTER WAS CONCLUDED