Harwood v The Queen B58/2000 [2001] HCATrans 303 (27 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B58 of 2000

B e t w e e n -

TODD ANDREW HARWOOD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE 2001, AT 9.30 AM

Copyright in the High Court of Australia

MR A.J. RAFTER: May it please the Court, I appear for the applicant. (instructed by Legal Aid Queensland)

MS L.J. CLARE: May it please the Court, I appear with MR C.W. HEATON for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

McHUGH J: Ms Clare, we might hear from you first.

MS CLARE: If the Court pleases. The argument, as we apprehend it, is that manslaughter as an unlawful killing should have been left to the jury as a possible verdict. We submit that in the way that this case was litigated, manslaughter under that branch was, in fact, excluded because the elements of that particular offence were no less than what was, in fact, required in the circumstances of this case to prove felony murder, that is, murder under section 302(1)(b) of the Code.

We submit that in the circumstances of this case, there was, in fact, no Barlow point, as is argued by the applicant, and that the difference between the two is that this was a prosecution based upon the felony murder provision in subsection 1(b), rather than the ordinary means to murder by way of intention in section 302(1)(a).

HAYNE J: Can I point you, Ms Clare, to the point that worries me about the argument, at application book 151, paragraph 3.6, which is your outline of argument. At about line 26 or 27 you say that you:

had to establish that there was a common intention to prosecute an unlawful purpose and this was done so, while Harwood knew that Hind had a firearm which was loaded.

What troubles me is that the aide-memoire given to the jury does not suggest that the jury had to be satisfied that he knew the gun was loaded, and if that is so, and if you are right in your outline of argument that knowing the gun was loaded was a necessary element in the felony murder approach to murder, how can the conviction stand?

MS CLARE: In my submission, it was not a necessary element, that is, his knowledge that the gun was loaded. All that was needed was an apprehension or a realisation that the gun could be loaded and that, in fact, was the effect of his admissions which appear at pages 26 to 28 of the record. He said that he did not know that the gun was loaded, but he was aware of the fact that there was ammunition in the car and he appreciated that the gun was a "sawn-off .22" and that it could be used as "a persuader" for the purposes of the robbery.

McHUGH J: Another problem that troubles me about this case is that this applicant had his appeal dismissed by the Court of Appeal on a basis that this Court subsequently in Barlow's Case said was wrong. So, in a real sense, he has not had an appeal.

MS CLARE: It is true that the court below or the majority explored an area which we submit was not truly in issue and, in doing so, made a serious error in respect to criminal liability of the parties.

McHUGH J: According to the majority in Barlow.

MS CLARE: Thank you, your Honour. Is that an invitation to reopen? But having said that, if our argument is correct, that is, that manslaughter as an unlawful killing as opposed to manslaughter by way of criminal negligence was not truly open on the facts of this case, we submit that there is no prejudice or can be no prejudice to the applicant. Nonetheless, notwithstanding the fact that the majority did not seem to explore - - -

McHUGH J: I appreciate that, but what you are really saying is that notwithstanding that the Court of Appeal did not really examine the case properly because it misconstrued the law, nevertheless, we should resist his application for special leave to this Court on the basis that it really was not a point that was open in any event. But it really comes to this, that he really has not had an appellate court examine his argument. You would have to have a very clear case, it seems to me, for us at this stage to deny him the right to apply to this Court for special leave to appeal, when this Court has said that the reasoning in his appeal was just wrong.

MS CLARE: I appreciate the force of what you are saying. I can only respond to that in this way: if the Court is satisfied that there is no merit in the applicant's argument, then it would be entitled to dismiss this appeal notwithstanding the approach of the court below. I can take the Court through the arguments again, although your Honours seem to indicate - - -

McHUGH J: Yes, we are familiar with them. I mean, one thing that troubles me about getting rid of the matter breve manu, so to speak, is that without having all the evidence before us and examining it and seeing the nuances and just where it all fits in, I just feel a bit uncomfortable about relying on the material that is in the book.

MS CLARE: Yes. If I can perhaps look, then, not factually, but focus more on the legal aspects of the matter for the purposes of this argument - - -

McHUGH J: Yes. Could I suggest - the thought that is going through my mind is that it might be a case where if leave were granted, it might be that leave would be rescinded after a fuller examination of the evidence. But in the case where a person really has not had an appeal, has been found guilty of murder, as this man has, then to be asked to send him packing without even having a look at the evidence that is at the background of the case makes me a little uncomfortable, I am afraid.

MS CLARE: Yes.

McHUGH J: Even though, as you will know, perhaps, from my judgment in Barlow, I would have had no doubt that he was properly convicted of murder.

MS CLARE: I thank your Honour for your intimation. May I ask whether or not there is any purpose, then, to me raising the points in a legal sense?

McHUGH J: It really does not turn so much on any legal argument as to whether or not there is an evidentiary basis for the argument that Mr Rafter wants to put, does it not? But that requires an examination of all the combinations and what evidence the jury could have rejected and whether or not they may have acted on his statements, and whether it is possible that they would disregard them.

MS CLARE: Even before you get to that point, our argument is this, that there is no practical difference between the operation of section 8, if you like, or the use of section 8 for a homicide and felony murder, where the unlawful purpose is the same in both section 302(1)(b), that is, for the shooter, and for the common unlawful purpose in section 8, the party provision, and where the death is caused by the use of a dangerous weapon, that in those circumstances, the operation of the sections are such, because of the overlap between the two, that there is in fact no practical difference.

In respect of a verdict of manslaughter based on unlawful killing, that would translate to a requirement to prove, firstly, that there had been a killing, that it was unlawful - that means that it was not an accident - so that the Crown would have to prove that death was not foreseen or foreseeable. Finally, the Crown would have to prove the section 8 liability, that it was an unlawful killing which was a probable consequence of the prosecution of the common unlawful purpose.

HAYNE J: Are those issues in which the jury's conclusion about the knowledge or recklessness of Harwood as to the possibility of the gun being loaded is an element in the reasoning of the jury? You see, they were told, under manslaughter, one of the ways of proving manslaughter, that they could convict Harwood if Harwood knew Hind had a firearm and was reckless as to whether it was loaded or not. Now, at first blush, that seems to suggest an argument that murder would open if, but only if, he knew it to be loaded, and yet they are not told that. Where does that leave us? It leaves us, perhaps on your submissions about the matter, looking at the factual material that went to the jury and, of course, we are not now in a position to do that.

MS CLARE: No. In respect of Harwood's knowledge, it is relevant to the ambit of the common unlawful purpose, and his admissions were that he realised that a gun which could be loaded was being used. The other requirement for felony murder is that the lethal act, in this case the pointing of the gun, was such that it was likely to endanger life. So it was there objectively. Those other circumstances could be taken into account by the jury in assessing whether or not it was an act which was likely to endanger life from the point of view of a reasonable person in the position of the shooter.

So, just following on from my argument, I have already outlined the requirements for manslaughter. For felony murder in this case, it would be enough, in our submission, if the killing was a probable consequence of the unlawful purpose, that is the robbery, which is the element of manslaughter, if the jury was satisfied that pointing the loaded gun which was cocked and having the safety catch - at close range was an act likely to endanger life and there seems, in this case, to be no rational alternative to that. I know your Honour has said that it is unwise and unsafe to look at the facts of this case, but even if I do not - - -

HAYNE J: No, what I am saying is we might have to look in some detail at the facts.

MS CLARE: But even for the purposes of this argument, if we move on from that and if we look beyond whether or not it would have been perverse to find otherwise than that it was an act likely to endanger life, that requirement, in our submission, is no more than what was required to establish manslaughter or would be required to establish manslaughter under an unlawful killing because of the requirement on the Crown to negative accident to show that it was either foreseen or foreseeable. In our submission, there is no practical distinction between those two. If that is so, the elements of manslaughter are no less than those required to establish felony murder in this case.

A further aspect to that argument, though, even if that were not so if the Court thought that there was a difference between accident and that requirement of felony murder to establish that it was an act likely to endanger life, all that is left, in our submission, if the jury were unsatisfied of that factor, is left is criminal negligence because for the purposes of criminal negligence, the defence of accident is excluded and criminal negligence, of course, was an option put to the jury. Those are our submissions in respect to the law.

McHUGH J: Yes, thank you, Ms Clare.

Yes, there will be a grant of special leave in this matter, but Mr Rafter, you have to understand that when the Court becomes more fully conversant with the evidence in the case, it is a possibility that special leave could be rescinded.

MR RAFTER: Yes, I understand that, your Honour.

McHUGH J: Yes. How long will the appeal take?

MR RAFTER: Half a day. It is the sort of time that Gilbert took, I suppose.

McHUGH J: Ms Clare?

MS CLARE: Yes, I would not divert from that.

HAYNE J: In the preparation of the appeal book, the parties might give attention to ensuring that any aide-memoire that was given to the jury by the judge for the purposes of his Honour's charge is included in the appeal book.

AT 9.46 AM THE MATTER WAS CONCLUDED