Dunkerton v The Queen B20/1999 [2000] HCATrans 72 (10 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B20 of 1999

B e t w e e n -

MALCOLM STEPHEN DUNKERTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 10.03 AM

Copyright in the High Court of Australia

GUMMOW J: I am addressing these remarks to the Corrective Services people there. We do not think that the applicant should appear before us in manacles.

OFFICER: You are requesting to have the handcuffs removed, your Honour?

GUMMOW J: I am telling you to, yes. Mr Dunkerton, you appear for yourself without legal representation?

MR M.S. DUNKERTON: Yes, that is right, your Honour.

MR M.J. BYRNE, QC: May the Court please, I appear for the respondent Crown. (instructed by the Director of Public Prosecutions (Queensland))

GUMMOW J: Mr Dunkerton, do you have an application to adjourn this matter today, or do you want to proceed today?

MR DUNKERTON: I will go on with it.

GUMMOW J: Very well. You have seen what happens? We have 20 minutes to hear from you - no more than 20 minutes, I should say.

MR DUNKERTON: Yes, I do not think it will take that long. I will just get to the points of law. You have read the argument in the application book?

GUMMOW J: We have, yes.

MR DUNKERTON: I indicate to you that my grounds for appeal are miscarriage of justice, based on errors in my Court of Appeal. I must first apologise for my initial lack of understanding in what could be allowed in the High Court. So, to help the Court, I will exclude any arguments not directly related to the Supreme Court appeal and believe I have sufficient coverage of the primary issues in my verbal arguments.

The learned Appeal Court judges erred in that they failed to place themselves in the position of the trial judge pertaining to the verdict. I believe this occurred as a result of their failing to scrutinise all the material before them in detail. This was most likely brought about by the incompetent defence at the appeal - which was myself - being that the verbal argument lacked any substance and that they may have felt that there could not possibly have been anything further in the material before them. However, the trial judges' error was in the material before them, and whether it was a failure to scrutinise, simply that it was missed or that they erred similarly to the trial judge, nevertheless, a miscarriage of justice was the end result.

The original error at law by the trial judge was in making an arbitrary decision that was not within the scope of his discretions and it was a decision that was beyond power. The decision was at page 289, line 60 of the trial transcripts, which should be in the book. I do not think it is in the book.

GUMMOW J: No, it is not.

MR DUNKERTON: Sorry. It was also part of the appeal document. The jury had a choice of two manslaughter verdicts and the judge decided without any indication from the Jury as to which verdict had been reached. The judge directed inter alia at page 277, line 1:

If you had reached this point only because you have not excluded accident, then you look at criminal negligence. If criminal negligence is proved beyond a reasonable doubt, then you find him guilty of manslaughter, otherwise not guilty of manslaughter. If you have reached this point only because provocation is not excluded, beyond a reasonable doubt, it would be guilty of manslaughter. That if the jury believed it was an unintentional pulling of the trigger, that they must acquit of murder and go to manslaughter, thereby instructing the jury that even an accident can be manslaughter if circumstances of criminal negligence were involved. Under this direction alone it is reasonable to assume that it was as equally possible the conclusion reached by the jury.

Document A, which I sent to you on Thursday - - -

GUMMOW J: Yes.

MR DUNKERTON: Document A as provided to the jury also directs the jury under the charge of manslaughter, "If you have reached this point only because you have not excluded accident - if criminal negligence is proved beyond a reasonable doubt, guilty of manslaughter". Under this direction alone it is reasonable to assume this was as equally possible the conclusion reached by the jury.

At page 289, line 40, Mr Bullock questions the judge as to what basis does the manslaughter apply. Mr Bullock says,

Your Honour, the point in my submission is on what basis does the manslaughter apply? In my submission, your Honour, if the jury would have found that it was a deliberate shooting of the gun -

HIS HONOUR: Shooting, yes -

MR BULLOCK: They would have found murder in the case of Mr -

HIS HONOUR: Well, not necessarily, they might have found that there was deliberate pointing of the gun and shooting without the necessary intention.

The judge had shown discretion that is beyond power. He has taken the verdict away from the jury. The decision by the judge to decide arbitrarily as to the choice of verdict is for the jury. Interfering with the verdict of the jury and is unlawful. As the interference was a matter relating to part of the trial, it is a violation of the right of the accused to doubt. Clearly, it is possible that the guilty verdict as returned by the jury may have referred to the lesser charge. Any acceptance that the judge could decide for the jury as to which verdict applied to their decision would indicate I was not allowed to be tried by the jury for accident with circumstances of criminal negligence, as the jury was not allowed to return this verdict, therefore, denied a fair trial. See House v R:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

The learned appeals judge erred in what appears to be a similar fashion in that they failed to place themselves in the position of the trial judge in respect of two decisions in relation to the proof of accident. In summing up, on page 243, which is in your application book, lines 5 to 15, the judge directed to the jury that it was the Crown who had to prove it was an accident. As it was never the Crown's intention to prove it was an accident the jury was grossly misdirected. In redirections, page 274, lines 10 to 25:

The other leg of it was whether or not there was an accident in the event. The event in that case was the shot striking the deceased man and killing him. The question is, in that respect, whether the shot striking him and killing him in that way as an event occurred by accident, that is, whether it was the Crown has proved that it was reasonably foreseeable depending on the circumstances in which it was shot.

The judge also directed to the jury as to whether it was reasonably foreseeable that it was an accident. This redirection was at the very end of the trial. If the jury believed the judge - miscarriage of justice. If the jury believed the judge meant to be referring to the defence, proof of onus has been placed on the defence - miscarriage of justice. If it is believed the jury sorted the chaff from the hay, so to speak, regarding the law, onus of proof, et cetera, they have been allowed or required to decide a point of law - miscarriage of justice.

In respect of sentencing, the learned judges erred when overlooking the remarks pertaining to the victim. The trial judge stated the victim was "seriously culpable" - page 298. Both words are used in the legal terminology and as they were applied to the accused - myself - should be taken in that context, culpable legally or criminally liable. That is how it was used to describe me - page 289 now - in relation to a driving death, at the top of the page:

Well, Mr Dunkerton has already caused one death prior to his culpable driving.

Seriously, for any offence or offender used to describe the higher end of the scale, so it must be said that in the minimum the deceased was at least 50 per cent of greater responsible for the incident and that a sentence reflecting 50 per cent or less than any sentence applied to manslaughter where the victim did not contribute to their own death.

There is a sentence here now, "the learned appeals judge erred in that he used the term "point blank range", this was not the case". That is a mistake, that should not be there, it is out of a different thing. A range of four to six years would be appropriate in respect of sentencing in that no person has ever been convicted of manslaughter where the victim has discharged a weapon first, with exception to gang war style shooting, where intent to injure has been conceded, hence, of course, the reason the prosecution failed to provide case law similar for sentencing.

I believe in my verbal testimony alone, sufficient grounds for appeal are established and the discretion of a judge or judges may only be challenged in an appellate court. I do not believe any of the actions by the trial or appellate judges was deliberate, merely oversights or normal human error. This cannot be argued as the appellate court and the prosecution were firm in their belief the defence lawyer was competent, yet by human error or oversight, he missed these points himself, thus leaving an argument that he should have redirected out of the question, as they had stated he acted competently.

I am not very good at points of law or what I should or should not say regarding these matters, so if there are any questions to me, I can only say you will have to rely on the information before you and counter arguments by the prosecution.

GUMMOW J: Thank you, Mr Dunkerton. Yes, Mr Byrne.

MR BYRNE: May your Honours please, the judgment by the Court of Appeal shows that their Honours carefully considered each of the grounds that were raised, and also the factors weighing in respect to sentence. The matters raised by the applicant this morning, the main one in respect to the conviction, appears to be that at page 243 of the record book between lines 5 and 15, where he complains that the learned trial judge improperly reversed the onus in respect to "accident".

In my respectful submission, a proper reading of that passage shows that his Honour was correct in law in placing the onus upon the Crown to exclude beyond reasonable doubt that what occurred on the evening in question was an accident. That is also the effect of the directions at page 274 dealing with the Crown proving foreseeability in respect to the actions.

So far as the sentence is concerned, both the learned trial judge and the Court of Appeal, with respect, took into account the unusual circumstances pertaining that evening. Nevertheless - - -

HAYNE J: Mr Byrne, where does this sentence fall in the range of sentences imposed in Queensland for manslaughter cases?

MR BYRNE: Your Honour, manslaughter sentences range in Queensland from non-custodial to life imprisonment. In respect to manslaughters involving firearms, it is usual that those matters lie in the range between 10 and 15 years. Unless there is something further, those are the submissions.

GUMMOW J: Yes, Mr Dunkerton? Do you wish to reply?

MR DUNKERTON: Just that there has not been the - sorry, the comparables that the Crown used at the trial were just ridiculous, right out of whack. They were completely unarmed people. There was an extraordinary emergency at the time and that was not canvassed in the trial, which should have been. I know that is up to the defence, but there were a lot of things that were overlooked there, anyway. I could not get any comparables where the other party was shooting first and coming towards the house where there were two babies in the house. I do not know what I was supposed to do, maybe let them shoot the babies, whatever. So the emergency was there. There has to be some blame put on the other bloke and for that, my sentence should not be enough as he was seriously culpable. But these other mistakes are clearly mistakes, you cannot turn them around and say they are not what they are. If the jury believed that, well, then it was a miscarriage of justice.

Also the fact that - I cannot get one thing out of my head: like in a murder trial, is it normal procedure to send the jury home after 10 hours of deliberation and then bring them back in the morning? Is that normal practice? I do not know. So the jury were allowed to go home, discuss their thing and then come back in the morning and half an hour later they have a verdict. I think there should have been a separate sentencing hearing, which there was not. Straight after the heat of the trial we were sentenced; there was no break or anything. I do not know whether that is lawful or whatever. Anyway, that is about all I have to say.

GUMMOW J: In so far as the applicant seeks leave to appeal against his conviction for manslaughter the Court considers that an appeal would not enjoy sufficient prospects of success to warrant the grant of special leave. In so far as the applicant seeks to challenge the sentence passed upon him, the application raises no point of general principle which warrants the intervention of the Court. Accordingly, the application is refused. The Corrective Services officers should take the applicant back into custody.

The Court will now adjourn to reconstitute.

AT 10.23 AM THE MATTER WAS CONCLUDED