Baggott v The Queen B59/2000 [2001] HCATrans 291 (27 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B59 of 2000

B e t w e e n -

KEVIN JOHN BAGGOTT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE 2001, AT 11.44 AM

Copyright in the High Court of Australia

MR M.C. CHOWDHURY: If the Court pleases, I appear for the applicant. (instructed by Legal Aid Queensland)

MR M.J. BYRNE, QC: May the Court please, I appear with my colleague, MR N.V. WESTON, for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ: There is a question of time. Do you oppose the extension of time, Mr Byrne?

MR BYRNE: We do not, your Honour.

GLEESON CJ: Yes, you have that extension of time, Mr Chowdhury.

MR CHOWDHURY: Thank you, your Honour. There is also another procedural matter I need to address. The original notice of application did not list the precise orders that we would seek if we are successful for leave to appeal. Pursuant to section 77J of the Judiciary Act, I seek an order from this Court amending the original notice of application to include those additional orders. I have copies for the Court of the relevant section of the Act and I also have copies of the amended notice of application that - - -

GLEESON CJ: Is that opposed, Mr Byrne?

MR BYRNE: I have indicated to my learned friend this morning, no, that is not opposed.

GLEESON CJ: All right. You have that leave. Mr Chowdhury, you are not seeking to persuade as a matter of principle, are you, that when a judge sentences an offender after a jury verdict the judge is obliged to sentence the offender on the basis most favourable to the offender consistent with the jury's verdict?

MR CHOWDHURY: No, I am not seeking to persuade this Court of that. What I am seeking to persuade this Court is that in the circumstances of a case, where really the only version of the events which the jury could have acted on in reaching their verdict was that of the accused, the sentencing court is not entitled to reject that, leaving the facts unknown.

CALLINAN J: But you need the addition that you have in your grounds of appeal that the applicant's version was neither implausible nor incredible.

MR CHOWDHURY: Yes.

CALLINAN J: The trial judge expressly found, did he not, to put it at its lowest, the version was implausible, if not incredible?

MR CHOWDHURY: Yes, but, in my submission, when one looks at the essential act of the killing, which really is the gravamen of the offence of manslaughter, the version given by the applicant was not implausible, nor incredible.

GLEESON CJ: You want us to review the judge's finding of fact on that? I mean, it was the duty of the trial judge to find the facts, was it not?

MR CHOWDHURY: It was.

GLEESON CJ: He was not bound to believe your client, was he?

MR CHOWDHURY: No.

GLEESON CJ: Then are you seeking to persuade us that the trial judge was wrong as a matter of fact, after having sat through this trial? We have never seen your client. You want us to overrule his finding of fact?

MR CHOWDHURY: I am hesitant to say that because, of course, as this Court has said on a number of occasions, it is not a court of criminal appeal and I have to persuade this Court that there is some principle of law of general importance.

GLEESON CJ: But it would be a fairly immodest appellate court which has never even read the evidence at the trial, never seen the people involved, never seen the appellant, that would overrule a trial judge's assessment of the credibility of the appellant.

MR CHOWDHURY: I do not know if I would use the term "immodest" but - - -

GLEESON CJ: I can think of a stronger term.

MR CHOWDHURY: What I am arguing really that what should be a principle of law is that where there is really only one version of events and the jury must - - -

GLEESON CJ: And that is a lie?

MR CHOWDHURY: That is what the trial judge found.

GLEESON CJ: That is the trial judge's duty, is it not, to decide whether it is true or false?

MR CHOWDHURY: Yes, but, in my submission, that was inconsistent with the verdict of the jury and the law is that the judge must sentence according to the jury's verdict and - - -

GLEESON CJ: No, not quite. The judge must sentence on a basis of a finding of the facts that is consistent with the jury's verdict.

MR CHOWDHURY: Yes, but his views - - -

GLEESON CJ: Juries typically find very few of the facts that are relevant to sentencing.

MR CHOWDHURY: I accept that as well.

CALLINAN J: And it must often be that the only version put before the court in cases of this kind is the version of the accused.

MR CHOWDHURY: Yes.

CALLINAN J: Because once the crime is concealed or there are any circumstances of concealment, then there will not be any other version.

MR CHOWDHURY: That is so.

CALLINAN J: Trial judges are bound to accept that. I mean, it would be horrendous if he had to accept the version, as a matter of obligation, simply because it was the only version.

MR CHOWDHURY: The alternative to that is, in my submission, untenable, namely, that the court then has to sentence in a factual vacuum.

GLEESON CJ: It is not a factual vacuum. There is a death, just for a start.

MR CHOWDHURY: Yes.

GLEESON CJ: That is significant. Then there is a verdict of guilty of manslaughter.

MR CHOWDHURY: That is so, but, as your Honour would appreciate, particularly from the judgment of the New South Wales Court of Criminal Appeal in Isaacs, that manslaughter particularly is an offence of wide variation and in order to impose a proper sentence for that offence it is essential that the sentencing court knows what the fundamental or basic facts are.

GLEESON CJ: To the extent to which they are capable of being known.

MR CHOWDHURY: Yes.

CALLINAN J: But the trial judge knew and found that there had been a ruse and he also found that there was an intention to do some harm to the victim.

MR CHOWDHURY: Yes. The sentencing judge put it in terms of physical or economic harm. I am not quite sure what "economic harm" meant, but I accept, as I must, that he was open to conclude that he intended to do some physical harm. That still, in my submission, causes a considerable difficulty for the court in imposing a proper sentence.

GLEESON CJ: The argument that you want to put does not seem to be the basis on which there was a division of opinion in the Court of Appeal. As I understand it, the basis on which the Court of Appeal decided was on a different point, that is to say their views as to what was the range of sentencing for manslaughter.

MR CHOWDHURY: Yes. Your Honours, I will just briefly complete really my argument on the first point. The majority judgment of this Court in Olbrich, which is referred to in my outline, stated that it is not only the type of penalty, but also the level of penalty is very much affected by the factual basis upon which the judge proceeds. The majority judgment also emphasised the importance of what the actual offender did when considering sentence.

If I can draw a distinction between this case and Olbrich. In Olbrich the basic facts were known. He brought in through Customs at Sydney Airport over one kilo of heroin in bottles and secreted in luggage, whereas here those even simple basic facts are not known. All that we know is that the elements for the crime of manslaughter were met, namely that he unlawfully killed the deceased.

Therefore, in my submission, where the court is faced with the only version that is known, that of the accused, and a completely unknown version, the court should act on the version made by the accused, how unpalatable or unsavoury that may be. The Court of Criminal Appeal in New South Wales in Isaacs in point 3 - they set out five points of considering the principle - - -

GLEESON CJ: You can take it we are familiar with Isaacs.

MR CHOWDHURY: Yes. Where the comment was made that quite often a sentencing judge is in the position where he does not agree with the jury's verdict but nevertheless still has to sentence on the facts, however unpalatable he might find that.

Can I then draw your Honours' attention to the second ground of appeal, that is, having rejected the facts or the version given by the accused and, as the trial judge did in this case, said, "I don't know how you killed the deceased", it is completely unknown, it was not open for the trial judge to sentence the applicant to the highest range submitted, a range reserved for cases of less serious violence.

I refer in my outline to the case of Sheedy [1999] QCA 446; (1999) 108 A Crim R 453, which is a decision of the Queensland Court of Appeal. I refer to that case because it does exemplify the submissions I am making on this point. The relevant passage commences on page 445 and the second-last paragraph. Over on page 456 the Court of Appeal considered six other comparable cases.

Your Honours will note from all of them that the violence involvement there was quite serious. For example, the first case that it referred to at the bottom of page 455, there was a stabbing nine times of a deceased into the heart. The next case, there was a single stab wound described as "a savage stabbing". The third case, a stabbing five times. I do not need to go through all of them, but the last case of Moors that is referred to there, a man shot 12 times at a car driving away from a cannabis plantation with an assault rifle. That is the level of violence that deserves the sentence that was imposed in this case.

In my submission, the dissenting judge in this case, his Honour Justice Mackenzie, correctly put the approach that should be made when the facts are not known, namely, it should be treated as simply an ordinary case of manslaughter without any particular aggravating features. If that proposition is accepted, the sentence imposed in the court below and upheld by the Court of Appeal simply cannot stand. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Chowdhury. We do not need to hear you, Mr Byrne.

In this case the Court considers there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 11.55 AM THE MATTER WAS CONCLUDED