Franklin v The Queen M60/2001 [2002] HCATrans 219 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M60 of 2001

B e t w e e n -

LANCE EDWARD FRANKLIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 11.10 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by David Tonkin & Associates)

MR C.G. HILLMAN, SC: May it please the Court, I appear with my learned friend, MR P.B. KIDD, for the respondent. (instructed by P. Wood, Solicitor for Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Croucher.

MR CROUCHER: Your Honours will see that in this application there is a ground the equivalent of the ground in the previous application concerning consciousness of guilt, so I do not propose to repeat the arguments in that respect, except to say that in this case the point has far more meaning.

HAYNE J: Can we just tease that out a bit, Mr Croucher. At trial the accused went to the jury asking for a verdict of manslaughter, did he not?

MR CROUCHER: Yes.

HAYNE J: By asking for a verdict of manslaughter, did not the accused thereby accept that his acts had contributed to the death of the deceased?

MR CROUCHER: Yes.

HAYNE J: Does it not follow inexorably that there was one issue and only one issue live for the jury, namely what was the intent with which the accused did the acts that contributed to death.

MR CROUCHER: No, in my respectful submission. There were still an issue - - -

HAYNE J: What other issue was alive other than intent, once the accused went to the jury saying, "Please convict me of manslaughter"?

MR CROUCHER: There was still an issue of complicity that arose.

HAYNE J: How?

MR CROUCHER: Because the way in which the case - - -

HAYNE J: He says, "I am guilty of manslaughter. Please convict me of it, not murder."

MR CROUCHER: Part of the problem with that concession, or invitation, was that it was in the context of erroneous directions on complicity and manslaughter itself in the first place. The directions on manslaughter were inconsistent with those prescribed by this Court in Wilson where the test is an appreciable risk of serious injury. The directions given in this case were an appreciable risk of bodily injury or death. So that in the jury's mind, that concession may have been elevated to a high form of culpability than needed to be in the first place.

HAYNE J: At least there was an issue about the intention of the accused in the acts he performed, was there not?

MR CROUCHER: Yes.

HAYNE J: What other conclusion was open to the jury other than an intent to cause really serious injury when this man, on his version of events, I think, took a baseball bat filled with sand and belaboured the deceased? What other conclusion could a jury reasonably reach?

MR CROUCHER: In my submission that is not the question though. The question is a complicity question because that is what was fundamentally wrong about this whole trial, was that the applicant was tried on a form of complicity which is not known to the law, and the directions not only were couched in those terms, they also positively directed the jury not to consider things that would normally be considered in any other form of complicity. They were told not to look to what may have been in the minds of the co-participants in the violence. In aiding and abetting, counselling and procuring, acting in concert or even common purpose reasoning overlying aiding and abetting or counselling and procuring, that is one of the fundamental questions - told not to consider those things.

HAYNE J: For my own part, I do not need persuasion that it is at least arguable that there was a misdirection about complicity. I might even go just a little further than that. I need to see how the argument goes beyond that fact of misdirection, but I speak only for myself.

MR CROUCHER: Yes. Secondly, the Court applies a proviso on the basis that his own acts, the applicant's own acts, contributed to the death of the deceased. That alternative was never put to the jury. It was not relied on by the Crown.

HAYNE J: It was put by his own counsel, "Convict me of manslaughter."

MR CROUCHER: Yes, but it was on an erroneous basis. When the trial is being conducted on a basis of complicity, which was in issue, and remained in issue to the end, and in the context of erroneous directions on manslaughter. So that, in my respectful submission, the applicant cannot be held to that concession or invitation in those circumstances. That is the point.

There was also evidence that - in considering the question of whether or not his own acts contributed to the death, his own direct personal acts, he was away - it was conceded that he was away from the scene for at least three or four times for substantial periods. Now, if the jury had had to consider the question of the applicant's direct responsibility for the acts causing death, they may well have thought, "No" in those circumstances.

GLEESON CJ: Can I just get one thing clear in my mind. At what point of the trial was it that the jury was first invited to convict your client of manslaughter?

MR CROUCHER: That is one thing I have been unable to determine, your Honour. It is clear that counsel does so in the final address.

GLEESON CJ: So before the directions.

MR CROUCHER: Yes.

GLEESON CJ: What was the basis on which your client's counsel put the case of manslaughter?

MR CROUCHER: Unlawful and dangerous act. What he said, and this is in the final address, which is at pages 149 to 150. We have extracted the substance of it at page 364 in the written submissions, paragraph 25 subparagraph (c):

While counsel said that the applicant's actions "contributed to the death" and that "[c]ausation is exactly the same for manslaughter"

and he invited, as the court has indicated, to convict him of manslaughter by unlawful and dangerous act.

HAYNE J: The difficulty for you is the statement "they", that is his acts, "contributed to the death".

MR CROUCHER: Yes, I understand that. In the same breath he submitted that at the end of the day, not only because of the medical evidence as to what actually caused his death, but as to the ambiguities of it all, what we simply say to you is this man is not guilty of murder but unfortunately guilty of the crime of manslaughter.

Now, he had earlier, in the same address, been referring to assaults occurring independently of the applicant, and in his absence, and to the uncertainties as to the cause of death. He was still disputing, and maintained the dispute, start to finish, of the link between the applicant's actions and responsibility for the death. The problem in this trial was the notions of complicity, because of the way in which it was erroneously left, and causation, became merged at times. It was very difficult to separate the two. While counsel was saying, "Yes", obviously for tactical reasons, "convict my client of manslaughter", it is still the case that a judge must properly direct the jury about the elements including complicity and about any other defence that may properly be open. In this case, given that the trial was fought on the basis of complicity, not on a direct responsibility, it is, in my respectful submission, very unfair and improper to turn around and apply the proviso in circumstances where that was never an issue at trial. That is the grave problem in this particular case.

It should be understood as well, this was not a trial where the Crown was saying, "He is guilty of intentional killing this man", this was a trial where the Crown went to the jury on the basis that he had intentionally caused him serious injury; no more than that. They abandoned the notion of intention to kill. So that the relationship, or the overlap, between manslaughter on the one hand and murder on the other became very, very real in this particular case, particularly when the judge gives a direction of manslaughter that fits an appreciable risk of death, not of serious injury. That brings them, to use the words of the majority in Wilson, manslaughter and murder, "perilously close to each other".

In Wilson's Case the majority took the view that to use the words "really serious injury" in directions on manslaughter would bring murder and manslaughter perilously close when they were left together. If they are perilously close when it is really serious injury in both cases, then, a fortiori, in the case of death, risk of death in a manslaughter case versus intention to cause serious injury, or really serious injury in the murder case. So that the basis for using the concession, if you like, against the applicant is not well founded, is erroneous. In any event, rightly or wrongly, it is the trial judge's duty, in my respectful submission, to ensure that defences are left open that fairly arise in the evidence. One of those was the question of causation, which I will come to in a moment.

In summary though, on the question of application of the proviso on a complicity basis, when one considers that the courts applied the proviso on a form of liability that was not in issue at trial, it was not fought - not joined between the parties. Secondly, that there were fundamentally erroneous directions in respect of complicity of the principal issue that was joined at trial. Thirdly, the concession, which is thought to have hampered the applicant in inviting the jury to convict him of manslaughter, was itself based on errors by the trial judge, or compounded by errors by the trial judge. It is a totally inappropriate case to apply the proviso. These errors are so fundament, in my respectful submission, as to go to the root of the proceedings and aside from the strength of the case. Even if that is wrong, nevertheless it is still an inappropriate vehicle to apply the proviso.

Can I just move to the question of causation. It was undisputed that the evidence of the pathologist said, effectively, this: that there was a possibility the deceased was still alive when thrown into the river, where he may have met his death by drowning. None of the injuries were of themselves essentially fatal injuries, nor would the deceased necessarily have died from the combination of injuries. That being so, irrespective of the way in which counsel ran the case, the jury had to exclude that possibility that the death occurred not as a result of the beatings but as a result of the drowning, before they could convict. They were never told to do that. In my respectful submission, the verdict was unsafe as a result of that.

Pemble is an example of a case where the Court was concerned to ensure that despite the conduct of the trial by counsel and despite the fact that counsel in that case said, "It's one thing or another. There is no halfway house." Nevertheless, the court still has a duty to put the various versions that are open. In this case, an acquittal was open on that material. There is no dispute about it. That was the Crown's own evidence.

The next ground concerns the question of manslaughter and the directions on it. I have touched on those already in part in dealing with the question of proviso. As I said, the directions were erroneous in that they referred to the test of "dangerous" as being both to bodily injury and death as opposed to serious injury. At page 366 of the application book, paragraph 34, I have extracted the passage from Wilson, which speaks of the error that applies in this case. The majority there adopted the Holzer view of the test of "dangerous" with one modification, and their Honours said this:

However, the utility of a qualifier such as "really" is very questionable. "Serious" and "really serious" may have quite different connotations in some situations. While the Holzer direction does not seem to have given rise to difficulties in this regard, the emphasis on really serious injury brings manslaughter perilously close to murder in this respect. The distinction between the two may easily be blurred in the minds of the jury. It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury.

As I say, those comments apply with all the more force when it is left as a risk of death and that is the basis on which - that direction which, of course, comes after the concession, must be seen by the jury as a concession that there is a risk of death, or appreciable risk of death when it cannot be taken to have made that omission. That is the great problem with relying on that basis for applying the proviso in the first place because it may have erroneously elevated in the jury's minds the culpability or level of mens rea to which the applicant was implicitly admitting through his counsel.

Equally, at the other end of the spectrum, by referring merely to "bodily injury" as opposed to "serious injury", it broadens the range of offences or behaviour which manslaughter would catch and, therefore, it suggests that manslaughter is a much, much less serious concept than that which was applied in this case, given the evidence about the long-term beating and so on.

So, at both ends the applicant is disadvantaged. He is not advantaged at all by this direction. It can only disadvantage him and, in my submission, for all those reasons the matter is an appropriate vehicle for special leave and there is a real miscarriage of justice, or a real risk of miscarriage of justice in this particular case.

On one view he should have been acquitted because of the evidence. On another view, at least a retrial ought to have been ordered and the proviso ought not to be applied in the circumstances where there are so many errors: errors as to complicity; errors as to manslaughter directions; errors as to the direction on consciousness of guilt. The errors just mount up so the trial cannot be said, in the words of Wilde to be a trial according to law in the end. It is a fundamental departure from a trial according to law and that is the complaint. Unless the Court has any questions, those are my submissions.

GLEESON CJ: We do not need to hear you, Mr Hillman.

We are not persuaded that there has been an arguable case of miscarriage of justice in this matter, and the application is dismissed.

We are going to adjourn for a short time to reconstitute.

AT 11.28 AM THE MATTER WAS CONCLUDED