Murray v The Queen B2/2001 [2002] HCATrans 52 (19 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane- No B2 of 2001

B e t w e e n -

WILLIAM JOHN MURRAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 FEBRUARY 2002, AT 2.01 PM

Copyright in the High Court of Australia

MR A.J. RAFTER: If it please the Court, I appear for the applicant. (instructed by Dearden Lawyers)

MS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by the instructed by the Director of Public Prosecutions (Queensland))

MR RAFTER: Your Honours, this case requires an extension of time. The circumstances explaining the delay in filing the application are contained in the application book. There is an additional affidavit referred to in the affidavit contained in the book at pages 56 to 66 that is not actually contained in the book. It is an affidavit sworn 28 November. I have copies of that affidavit for your Honours.

GAUDRON J: No, we do not need to trouble you on the extension of time, Mr Rafter.

MR RAFTER: Thank you, your Honour. Your Honours, the principal authority relied upon before the Court of Appeal, but not referred to in either the joint judgment or the dissenting judgment of Mr Justice McPherson was R v Guise 101 A Crim R 143. My submission is that the facts of this case and the principle underlying the point sought to be agitated, or the principle - - -

GAUDRON J: You say "the point sought to be agitated". The draft notice of appeal contains many points.

MR RAFTER: Yes, but the material was prepared by the applicant himself from prison, as the material would tend to indicate. I have prepared an amended draft notice of appeal to reflect grounds that would include only the section 23(1)(a) point and the onus of proof point, which was the point upon which the court was divided. If it becomes necessary to do so, I can - - -

GAUDRON J: Are those points related? In a sense they are.

MR RAFTER: In a sense they are. In a sense they are, in my respectful submission. As I submitted earlier, the principal authority was Guise, which I submit is practically indistinguishable from the present case.

GAUDRON J: Do we have that?

MR RAFTER: I have provided that with the list of authorities. Can I just make these observations in respect of the reported decision in Guise. In the headnote it indicates that Mr Justice Pincus and Mr Justice Lee made certain findings. In fact the headnote is erroneous because, as one can see, if one looks to the final page, 151, Mr Justice Lee actually agreed with Mr Justice Ambrose. The significance of that is that, although all members of the court agreed in the result, Mr Justice Pincus and Mr Justice Ambrose arrived at the result by different means. So when one sees at headnote (3) the headnote:

It was unnecessary for the trial judge to have referred to s 23 -

in actual fact that was Mr Justice Pincus' view but the majority view was that contained in the judgment of Mr Justice Ambrose. If I can perhaps go to some aspects of what his Honour said. It was a shooting case and it was a case where the court was of the view that the appellant's evidence was highly improbable. If I could go to page 147 in Mr Justice Ambrose's judgment where his Honour made those observations, it is said in the third paragraph:

On the other hand in my view, the appellant made it clear in her evidence that the discharge of the pistol did not result from her willed act.

Then in the passages that follow on that page - - -

GAUDRON J: Can the same be said of this case?

MR RAFTER: Quite possibly, your Honour.

GAUDRON J: But it is not exactly on all fours, is it?

MR RAFTER: It could not be. There are factual differences, obviously, that - - -

GAUDRON J: But there was no admission that it was a willed act?

MR RAFTER: No, certainly not. The appellant's evidence at trial was as to being struck with an object in the head and the weapon going off. It was a very old weapon and although both barrels discharged, it was capable of sympathetic discharge in the sense that if one barrel went off so too would the other. At the foot of 148, Mr Justice Ambrose said:

However unpersuasive her evidence might be thought to be by a jury there is no doubt in my view that the appellant gave evidence that she did not consciously discharge the pistol causing her mother's death.

Then on the following page his Honour sets out passages from the decision of this Court in R v Griffiths [1994] HCA 55; (1994) 69 ALJR 77. I have actually provided a copy of Griffiths itself, but for present purposes the extracts that appear about halfway down the page in the joint reasons of Justices Brennan, Dawson and your Honour Justice Gaudron are sufficient. One finds it halfway down the page from Griffiths these comments:

"If the appellant in fact fired the bullet which entered the body of John Apps and thereby cause his death the appellant's criminal responsibility for manslaughter depended on proof that -

(i) the act of firing the bullet was willed or voluntary, that is, the act was not done independently of the exercise of the appellant's will (s 23, first limb) and the death of the deceased did not occur by accident, that is, it was a foreseen or foreseeable result of that act (s 23 second limb) or alternatively

(ii) that the death of John Apps was caused by criminal negligence (s 289).

Now, I have to acknowledge, of course, Griffiths was a manslaughter case; this is a murder case which required the Crown to prove beyond reasonable doubt the intention to kill or do grievous bodily harm. That is one distinguishing feature but it is not sufficient, I submit, to obviate the requirement to have directions in accordance with the observations there from Griffiths. As Mr Justice Ambrose set out, continuing from the extract in Griffiths:

A plea of not guilty puts all elements in the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be.

And at the foot of 150:

On the facts of the present case there is an abundance of evidence from which the jury could be satisfied that the appellant was pointing the gun towards her mother's chest while she stood within a room in the house more than one metre from her when it discharged and the expert evidence showed that to discharge the pistol it must have been cocked and a significant pressure applied to the trigger whilst simultaneously a safety device on the back of the handle of the pistol was deactivated.

His Honour observed it was almost an overwhelming case but nevertheless a case in which the appeal ought to be allowed and a new trial ordered. His Honour was of the view, at the foot at 151, that Griffiths required the verdict to be set aside. My submission is that those arguments support the applicant's contention.

GAUDRON J: Yes. We might hear from Ms Clare at this point, Mr Rafter.

MS CLARE: Thank you. If I could take those two cases, first Guise. In my submission, that is a case that is quite different from the present in that an acquittal was wrongly withheld from the jury. The case was left to the jury on murder or manslaughter only with no option of returning a not guilty verdict. So the failure to give a direction in relation to accident, for example, deprived that accused of an outright acquittal, which is quite different from the present case where the directions followed this path: firstly, was it a deliberate shooting; if so, it is murder; if not, the jury were to go on to consider manslaughter, either through intoxication or criminal negligence; with a final alternative of a complete acquittal.

GAUDRON J: But there is a problem, is there not, as to what should be done in a case where the evidence does leave open the possibility either of accident or involuntary act and the defence case is mounted on a different basis?

MS CLARE: I am sorry, I do not follow your Honour.

GAUDRON J: Well, the issue surely is whether there should have been directions about involuntary act.

MS CLARE: Yes.

GAUDRON J: And/or accident.

MS CLARE: Yes.

KIRBY J: Do you concede that there should have been?

MS CLARE: My submission is on the facts of this case it was not necessary in relation to murder.

KIRBY J: I thought in the court below you conceded it but said the proviso applied.

MS CLARE: There was a concession, I think, in relation to accident generally but, with respect, that does not necessarily follow that accident should have been left specifically in relation to murder. There were directions, of course, in relation to manslaughter and her Honour, in speaking of a non-deliberate, non-intentional killing, for manslaughter, did not specifically direct the jury in relation to a voluntary act. That is the first limb of section 23.

GAUDRON J: But would it not be the same for murder? Is not what is good for manslaughter good for murder in this case?

MS CLARE: Except that, in my submission, the directions in respect of murder had the same effect, that is that they excluded the possibility of an involuntary act because they amounted to one and the same issue, as his Honour Mr Justice McPherson said in the court below. That issue was whether the killing was deliberate and that was the issue which was left to the jury. It was patently clear from all sides, from the running of the evidence, from the addresses of counsel and most specifically from the directions of the judge, that that was the issue in this trial.

GAUDRON J: Well, it was whether there was an intention.

MS CLARE: Yes.

GAUDRON J: You say that necessarily comprehends a deliberate act.

MS CLARE: Well, for example, if I can refer the Court to two specific points of the directions, where her Honour directs the jury as to the intention of the applicant at the time he committed the act, which, in my submission, amounts to the same thing. He had to have an intention to kill or do grievous bodily harm at the time that he had committed the act. My examples at page 9 of the record book, line 22, and again at page 18 line 30. Those directions - - -

GAUDRON J: So, your proposition is that if in a murder case the jury is directed with respect to intention, it is never necessary to direct them with respect to accident or involuntariness?

MS CLARE: I do not go that far.

GAUDRON J: Well, where do you draw the line?

MS CLARE: I restrict my submissions to the fact of this case, where really there was a clear delineation between willed acts and unwilled acts. It was not like Ugle, with respect, where there was a mixture on the defence case of a willed act, that is the struggle and punches being thrown, and the unwilled use of the knife. This was a much clearer delineation of either a deliberate shooting, an execution on the Crown case, or an accidental discharge, and there was nothing in between.

GAUDRON J: If you are correct in that, it would seem like a good counterpoint to Ugle to have both determined at the same time, would it not?

MS CLARE: My submission is that this case can be determined on its facts and on the issue as to whether or not there is a miscarriage of justice in any form, whereas Ugle is the case which will determine the principle. But, in my submission, it is not necessary for this case to join - - -

GAUDRON J: But you keep saying it can be determined on the facts, Ms Clare, but ultimately these things are about principles and their operation in particular contexts and to say it can be determined on the facts means you have to set the limits of the principle, do you not?

MS CLARE: Not necessarily. For example, his Honour Mr Justice McPherson contemplated in his judgment that - whilst he said that in this case the issue was one and the same, he contemplated that that was not always the case and he said there will be other cases where a direction in relation to accident for a wilful murder will be necessary but that this was not one of them. That reference is at page 49 at the top of the page.

GAUDRON J: Does his Honour tell us what the distinguishing feature is?

MS CLARE: No. He says that, ":

Except where an individual was acting while sleepwalking, or under the influence of concussion, or in a state of disassociation or the like, a claim to exemption under s23(1)(a) is as a matter of fact ordinarily irreconcilable with an intention to cause the very result that is achieved by means of it.

GAUDRON J: Ordinarily.

MS CLARE: Yes, and he says that - so his Honour does put it as an exceptional case in which the first limb of accident would be required but says that this is not one of them.

GAUDRON J: But his Honour's list cannot be exhaustive. What about the reflex action?

MS CLARE: But, with respect, I do not think that his Honour seeks to make it exhaustive and nor do I. I simply say that when one looks at this case, where it is clear that the applicant - it was the applicant's gun which killed the deceased and there are only two possibilities, poles apart on the evidence. There was no need, and no scope, to be directing the jury in relation to - - -

KIRBY J: Is there not though - as Justice Gaudron was suggesting earlier, are there not three possibilities: one, an intentional act to kill; secondly, an accidental act; and, thirdly, a non-intentional but not necessarily accidental act? Do you see the distinction?

MS CLARE: No.

KIRBY J: One is that the act of pulling the trigger was not intending to kill but it is not disputed that the trigger was pulled.

MS CLARE: Yes.

KIRBY J: And the other is that because of some bodily movement or reaction to the deceased leaping at him it happened purely by accident.

MS CLARE: Yes, but, with respect, it does not answer the Crown case here because whilst a voluntary act - - -

GAUDRON J: No, no, they never have to answer the Crown case, Ms Clare, never.

MS CLARE: But the voluntary act does not necessarily have to be accompanied by intent but once the intention to kill accompanies the act then it cannot be involuntary. That is the submission on which the claim that accident is excluded is based.

GAUDRON J: Did the prosecution not have to exclude accident and involuntariness?

MS CLARE: Yes.

GAUDRON J: Yes, and ordinarily there will not be any difficulty about it, but here there is no admission that the applicant pulled the trigger, is there? On one version he talks about the accused moving forward with his left hand, a blow to his head and the gun just goes off.

MS CLARE: That was his account.

KIRBY J: There was some blood on his head after, was there not?

MS CLARE: Yes.

KIRBY J: It was pointed out by someone.

MS CLARE: Which he seemed to be unaware of and gave no explanation for, and there was blood found on the hammer of the gun and the gun had a sympathetic discharge which - - -

McHUGH J: The Crown case was the blood got there when he was sighting the barrel.

MS CLARE: Yes, with the second discharge.

McHUGH J: Yes. On the miscarriage point, how much reliance do you place on the fact that the holes in the deceased's body lined up with the holes in the chair, which seems a strong point in your favour, does it not?

MS CLARE: It seemed to eliminate the accused's version because that was that this man was in the process of going for him, that he was in the process of standing up. It is not just the line up of the bullets but also the beer bottle still balanced on his leg and the one beside him, the full bottle beside him on the floor, neither of which had been disturbed.

McHUGH J: So what does it come down to then, that you just cannot apply the proviso? That is my understanding of the way the case is put against you.

MS CLARE: If there has been a misdirection, my submission is that it is not of such a fundamental type that the proviso is excluded, that if there has been a misdirection, on the facts of this case it really is only of a formal kind because the directions that were given accommodated all of the elements - the elements of murder as directed to the jury accommodated the Crown's requirement to disprove accident. So that there was no prejudice to the accused from the failure to specifically put accident. Furthermore, this was an incredibly strong case. The Crown case was strong. The defence version was implausible and contradicted by clear objective evidence.

KIRBY J: But the jury asked for redirection.

MS CLARE: Yes, in relation to - - -

KIRBY J: The ingredients of murder, I think.

MS CLARE: - - - the ingredients of murder. They also asked to be reminded of the statements of the applicant immediately after the shooting to the police officer, which were not consistent with a person who was shocked or surprised by what had happened.

KIRBY J: I think there is a lot of force in what you have said but the Court is going to be looking at the other case and experience teaches that it is sometimes is useful to have a case which has some differences in order to test the boundaries of the principle that is being advanced and the suggestion is that we should have the inestimable assistance of yourself and Mr Rafter when we are doing that, both of whom will give us assistance, give the Court assistance.

MS CLARE: I appreciate what the Court has suggested - - -

KIRBY J: You appear to be reluctant to give the Court - - -

MS CLARE: I hope the Court does not take this the wrong way. It is not that I am reluctant to assist, if I may, but - - -

GAUDRON J: You would rather do it today than - - -

MS CLARE: Than later, yes.

GAUDRON J: - - - than later.

KIRBY J: Than twice.

MS CLARE: I am not sure that there is anything else that I can add.

GAUDRON J: Yes. Well, at the moment we would not be minded to refuse leave outright. There are three possibilities, however. We could stand this application over pending a decision in Ugle, in which event of course we would not have the benefit of your assistance and nor would we necessarily have a counterpoint, if you like, to test the boundaries of any principle. The second is that we could refer this application to a Full Bench to be heard in conjunction with Ugle but I would have thought limited to the amended draft grounds of appeal which we have not yet seen. Thirdly, we could grant special leave limited to the new amended draft grounds and direct that it be heard in conjunction with Ugle, which is next week, is it not?

MR RAFTER: On 14 March, your Honour.

GAUDRON J: 14 March.

MR RAFTER: Perhaps I should hand up the amended draft notice of appeal. My learned friend has a copy of that. It reflects the two points: the section 23(1)(a) point and the point upon which the members of the Court of Appeal divided.

GAUDRON J: I think I understand that there has been some contact between you and counsel in Ugle, is that - - -

MR RAFTER: I have spoken to senior counsel for the appellant in Ugle, your Honour, yes. I would not like to bind her but I did inquire of her, how long she thought the appeal in Ugle might take and she has been good enough to send me the notice of appeal and her written submissions on the application for special leave and the indication that she gave to me was that the appeal might take something like half a day. So I suppose if this case was heard at the same time, it would be likely that both cases could still finish within a day.

GAUDRON J: Well, it would be imperative.

MR RAFTER: It would be, of course, and - - -

GAUDRON J: If that were the course taken, it would be imperative.

MR RAFTER: There is some overlap, of course, which will shorten this appeal, assuming Ugle is heard first, and - - -

GAUDRON J: Could appeal books be ready by 7 March?

MR RAFTER: I have discussed the preparation of the appeal books with my instructing solicitor and he assures me that he would not have any difficulty preparing the books in time.

GAUDRON J: 7 March?

MR RAFTER: Yes.

GAUDRON J: Is there anything you wish to say to that, Ms Clare?

MS CLARE: No, thank you.

GAUDRON J: In that case, there will be a grant of special leave limited, however, to the grounds of appeal set out in the amended draft notice of appeal now handed to the Court. The applicant, or the appellant, as he perhaps now is, is to take all steps necessary to have appeal books prepared and filed with the Canberra Registry by 7 March and it will be heard in conjunction with Ugle. Counsel will necessarily need to speak to counsel in the Ugle matter because under no circumstances will there be more than one day allocated for the hearing of both matters.

AT 2.27 PM THE MATTER WAS CONCLUDED