Perussich v The Queen [2003] HCATrans 351 (12 September 2003)

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Perussich v The Queen [2003] HCATrans 351 (12 September 2003)

Last Updated: 17 September 2003

[2003] HCATrans 351

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B66 of 2002

B e t w e e n -

MURRAY JAMES PERUSSICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 11.56 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 Lewenberg & Lewenberg)

MRS L.J. CLARE: May it please the Court, I appear with my learned friend, MR M.J. COPLEY, for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Croucher.

MR CROUCHER: Your Honours, the grounds of appeal in this matter in the most part come back to the point in ground 1, namely, the failure to leave the alternative verdict of GBH simpliciter, if I can use that shorthand. The other grounds concerning unwilled acts and accident, whilst grounds in their own right – and intention, as well – they really help explain why, in this case, the Court of Appeal went wrong and the trial judge below went wrong, as well, in failing to leave accident.

I want to make 13 points, if I can, quickly, as to why special leave ought to be granted in this case. Firstly, of course, the defence of GBH simpliciter was necessarily included in the offence of GBH intent; the difference between them being simply the intention, the specific intent, over and above the basic intent to commit the act.

HAYNE J: Was it open to the jury on the trial of the applicant to return that verdict as an alternative verdict?

MR CROUCHER: Yes.

HAYNE J: Was a direction sought from the trial judge to instruct the jury that that was available to them?

MR CROUCHER: No. What happened was the question of accident was raised, which would have raised this question of the alternative verdict, by counsel for the applicant below. Also, counsel for the respondent below twice raised the question of the alternative verdict, both before his Honour’s charge at the conclusion of evidence, and following his Honour’s charge and following his Honour’s redirection on a question of intention.

HAYNE J: What was the applicant’s attitude at trial to the jury being instructed that they might, as an alternative, bring in a verdict of guilty to grievous bodily harm?

MR CROUCHER: He did not press it. He did not seek - - -

HAYNE J: Why then should we, at this late stage of the process, entertain the argument?

MR CROUCHER: For these reasons, your Honour. The conduct of counsel has never been an impediment in the murder/manslaughter dichotomy. There is a real question that has been hanging around for a long time now amongst the various courts of appeal in this country and, as well, in England, including the Court of Appeal and the House of Lords, as to the factors which are relevant to consideration of this sort of point, one of which is the point your Honour raises, the conduct of counsel.

Now, as long ago as Pemble’s Case in this Court, the Court held that the conduct of counsel expressly disavowing an alternative verdict was not sufficient to relieve the trial judge of the obligation to leave the alternative verdict in certain circumstances, when it arises on the evidence. It did arise on the evidence in this case: complete acceptance of the complainant’s version in this case and complete rejection of the applicant’s evidence. That is an important point we say. Very few of these cases involve applicants actually giving evidence. It is important in this case.

Complete acceptance of the complainant’s version left open the question of how the gun actually discharged in this case and, secondly, the intention with which it was fired, assuming it was fired voluntarily, without accident, the reason being the complainant’s own evidence was, although he had been assaulted with the gun bodily, if you like, initially, or on the head, at the point at which the gun discharged, he was looking at the floor, firstly; he did not see the applicant pointing the gun at him; thirdly, he could not even say where the gun was at that time. They were clearly close together, on either version, and the real question arose (a) as to whether there was some sort of accident or unwilled act question, on the complainant’s version, putting aside the applicant’s version, and (b) even assuming that you negate those points, what was the intention with which he fired?

The jury asked that very question. They asked a question about intention in this case. So, in the jury’s mind, it was a live question – the intention in this case. Thirdly, in any event, the jury were given a standard direction, which would seem to be inconsistent with other directions, that, of course, a jury is entitled to accept or reject in whole or in part any witness’ evidence. So they were entitled, on the evidence in this case, to reject parts of what the complainant said and, as a result of which, they may well have more readily come to the view that they were not satisfied beyond reasonable doubt of the intention to cause GBH. Fourthly, as I have indicated, the prosecutor twice raised the question of the alternative verdict, but each time his Honour summarily dismissed the matter.

Fifthly, and very importantly, in this case, at the previous trial at which substantially the same evidence was given, same prosecutor, same defence counsel, but a different trial judge, Judge Hoath – a judge of great experience in criminal matters – took the view that GBH simpliciter should be left in the alternative, and both counsel who appeared did not dissent from the view that his Honour put, that if the complainant’s version was accepted, GBH simpliciter was still open. Even if he intended to shoot the gun, if the jury went that far, it could not necessarily be found beyond reasonable doubt – you could not necessarily assume that is what the jury would think – that there was the relevant intent, a specific intent, to cause GBH. At that trial, the jury did not reach a verdict, obviously enough.

Seventhly, as I say, the jury’s question in this trial showed that intention was a live issue. If intention was a live issue, then so was the alternative verdict. It cried out for it, in this case. Eighthly, in this case, as well – and this is where the other grounds come into play on the alternative verdict point – the directions on intent were flawed in any event. The judge failed properly to distinguish between specific intention to cause GBH and the basic intention or the voluntariness aspect that goes along with voluntariness or unwilled acts and accident.

Also, curiously, despite observing this error, the judge, having redirected on intention, when asked by the prosecutor to reiterate the point that he had made in his closing to the effect that a person is usually presumed to intend the probable consequences of their acts, or something like that, the judge said, “No, no, that would be wrong.....I am not going to give him a fair direction on that point”. But what he did not do was correct the misapprehension that the jury would have laboured under, in light of the address by the prosecutor.

The respondent, in her outline, cites Glebow, which is at tab 5, as a case which supports the proposition that the directions on intention in this case were in accordance with authority. But if I can take your Honours to paragraph [23] of that decision – tab 5, your Honours, of the respondent’s authorities – at paragraph [23] an argument was put in that case of Glebow as to how there might have been an alternative direction given on intention in that particular case. The important passage is the last sentence of that paragraph, where the court concludes that:

The direction suggested by counsel verges on the misdirection that a person may be presumed to intend the reasonable or natural consequences of his acts.

The highest authority of Stapleton and Parker’s Case are cited for that proposition. So, contrary to supporting the view that the directions were appropriate in this case, Glebow highlights the very error which his Honour failed to correct and which highlights, as well, why the alternative verdict ought to have been left in this case.

As well, the ninth point, there was a failure to direct on accident and unwilled acts in this case. Now, the respondent says that was to the advantage of the applicant, because it really resulted in simply his having the question of accident or unwilled acts resolved by being subsumed in some way in the notion that it was simply a case of accepting the complainant, or not at all. That, with respect, misses the point. By limiting the case to simply one or the other version, which is effectively what his Honour did, a line of reasoning was denied the applicant, which may have well have resulted in his acquittal on the principal charge – might have resulted in his acquittal on the alternative verdict as well.

Now, in the same way that the leaving of an alternative verdict may affect the jury’s findings of facts – and that is what their Honours the Chief Justice and Justice Gummow held in Gilbert’s Case, with the concurrence and the similar line of reasoning of Justice Callinan. So, in the same way that the leaving of an alternative verdict may affect the line of reasoning, so may the leaving or the giving of directions under section 23 of the Code. Murray’s Case and Ugle’s Case bear those propositions out, as well.

The point is that such directions would have focused the jury’s attention on the possible acts or events causing the injury and, crucially, in this case, the state of mind that accompanied the applicant’s alleged behaviour.

McHUGH J: Yes, but none of these directions were sought at the trial. A stage has been reached where points are not taken at the trial and then people come up to this Court and ask us to order a new trial, they having sought a verdict from the jury without raising the points and then they want to raise the points. This Court has held it has jurisdiction to entertain an appeal, but nevertheless the failure to take a point is a matter going to the exercise of discretion.

MR CROUCHER: Yes, but this is the point that needs to be decided, with respect – or one of the points that needs to be decided – in the context of the non-homicide cases, of leaving alternative verdicts, how that impacts, because it seems that whilst it may or may not have had some role to play in the murder/manslaughter dichotomy, it has not stopped this Court in Pemble, in Gilbert, and other courts of appeal throughout Australia ordering a retrial in circumstances where, on even a remote version of the facts, manslaughter was, indeed, open.

HAYNE J: The underlying problem is this, Mr Croucher. A court can never know why counsel chose a particular course at trial and the court can never know because the court can never know what was in counsel’s brief and what was in counsel’s instructions. So you get this artificial construct.

MR CROUCHER: I accept that, your Honour.

HAYNE J: And at some point, responsibility has to be taken for the course adopted at trial.

MR CROUCHER: Yes, but that, with respect, your Honour, does not answer the point that I make about the murder/manslaughter dichotomy and the fact that this fact has not prevented courts from saying the alternative was open; it should have been left. This question needs to be decided in the non-homicide context.

HAYNE J: Now, in this particular case, your base proposition is that on the evidence at this trial, assault occasioning grievous bodily harm was a verdict that was open.

MR CROUCHER: GBH simpliciter – it is not an assault case, your Honour, it is slightly different. But, yes, your Honour, it was. It was necessarily included.

HAYNE J: And that requires a close examination of the substance and effect of the evidence given at trial in circumstances where the trial judge took a view not challenged by trial counsel. Why should we re-undertake the exercise?

MR CROUCHER: Because the first point, your Honour, is that his Honour’s view is not a question of discretion at all. The second point about counsel’s approach to the matter may or may not be a question of discretion, and it seems that this Court has said in the murder/manslaughter context that it is not. It does not matter in the end. In Pemble’s Case the Court clearly said that counsel cannot concede a matter of law to the disadvantage of an accused. I think it was the Chief Judge at common law, Justice Hunt, in Stokes and Difford who said the same thing.

That line of reasoning has persisted, at least in the murder/manslaughter area. In some of these non-homicide alternative verdict cases, it has as well. There is a range of views about the factors. There is an unsettled state of the law. Mr Justice Charles in Doan, which is behind tab 7 of the applicant’s materials, makes the point, particularly at paragraph 28, which is page 357 of the Victorian Reports copy of the judgment. His Honour says this:

The question whether a judge is obliged to instruct a jury as to alternative verdicts for lesser offences in cases not involving murder/manslaughter has been discussed in various jurisdictions within Australia and elsewhere without any uniform approach having emerged.

His Honour then spends the next half a dozen paragraphs or so referring to the principal authorities on the matter, including Fairbanks in the Court of Appeal in England, Maxwell in the Court of Appeal in the House of Lords in England, Benbolt in the South Australian Court of Appeal, Rehavi in the Queensland Court of Appeal, Chan and Willersdorf in the same court, most recently Elfar in the New South Wales Court of Appeal and finally refers at paragraph 33 to Gilbert and says this:

If the decision in Gilbert extends beyond cases where murder is charged and manslaughter should be left as an alternative, there are plainly a number of questions left to be resolved for the future.

Then his Honour opines that he tends to the view consistent with Elfar, which of course was not in the applicant’s favour at all, although Elfar is quite a different case.

This case raises those issues squarely, plus it has the added features that in a previous trial, same prosecutor, same defence counsel, different judge, on substantially the same evidence, said it should be left. It shows how reasonable minds can differ about these things but it also illustrates, in my respectful submission, or lends some support to the view that there was evidence in this particular case that suggests that it ought to have been left.

The real concern is that a jury will take the view that they reject an applicant’s evidence either in toto or in part, substantially accept a complainant’s evidence but not perhaps entirely, or at least are not prepared to draw the inferences that the Crown would seek to have them draw. But, because they form the view that the applicant is engaged in clearly reprehensible behaviour, yet to have a choice between conviction and nothing at all, it is an unpalatable choice.

I referred in the outline in that regard to the majority’s view in Gilbert, and this is at page 117 of the application book, paragraph 17, where I have extracted part of what the Chief Justice and Justice Gummow said in their judgment in Gilbert. That is to this effect, that juries:

make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences . . . This is an age of concern for the victims of violent crime, and their relatives . . . a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.

That is this case. Similarly, as Mr Justice Callaway observed in Kane, a:

mind faced with an unpalatable alternative is under psychological pressure to come to a conclusion that avoids it.

The jury in this case may well have considered that the applicant engaged in such dangerous, culpable behaviour that he should not escape conviction, but the alterative verdict was open, it should have been left to them and, had it been left to them, we never know what would have happened. The point is that he has been denied at least a chance of acquittal on the principal charge of GBH with intent.

There are other grounds that are individual grounds, if you like, touching on the Edwards direction. That was a point not taken below. I rely on what I have written about that. The prosecutor clearly in this case invited the jury to use the post-offence behaviour of flight and the like, which I have extracted at paragraph 32 of the application book, page 121, where the prosecutor said things in his final address to the effect that the applicant was “on the run” - he was away for a couple of days after the incident – that he knew he “was in big trouble and he hid out”, that he turned himself in only when he realised that “the jig was up” and that he had time to “manufacture” his version. These are all things that clearly suggest, in my respectful submission, a reliance on post-offence behaviour going to consciousness of guilt, yet no direction was given.

My learned friend puts against me that it would not have amounted to consciousness of guilt. Then the jury should have been told that it did not go to that at all. The last thing that the judge told the jury was, “You can use all of the applicant’s behaviour pre, during and post the offence to determine the question of intent”. This is a case crying out, in my respectful submission, for a grant of special leave for a myriad reasons but particularly to deal with the question that has been troubling courts of appeal in this country for a long time, namely, the extent to which the murder/manslaughter dichotomy in the area of alternative verdicts applies to non-homicide cases.

McHUGH J: It would not necessarily follow, would it? The atmosphere at trials is something that just cannot be reproduced in courts of appeal. Anybody who has had experience of conducting criminal trials knows that from time to time cases take on an atmosphere in the Court of Criminal Appeal that bears no reflection of what - - -

MR CROUCHER: I understand that, your Honour. Can I answer your Honour’s question on that. Pemble is no - - -

McHUGH J: You are dealing with questions of murder and these doctrines were developed at a time when the death sentence was available for murder. As Justice Hayne said, there comes a time when counsel have to take some responsibility for these matters and their clients have to be bound by their decisions. If you have counsel standing by and not asking for the direction - - -

MR CROUCHER: But it was he who raised that at one point and it was summarily dismissed by the judge, and the prosecutor himself raised it twice and again was knocked back. Those are the matters, your Honours.

McHUGH J: Thank you. The Court need not hear you, Mrs Clare.

On the facts of this case and by reason of the failure at the trial to seek that the directions that the applicant now claims should have been given, this application has insufficient prospects of success to warrant the grant of special leave to appeal. Accordingly, it would be futile to extend the time for filing the application for special leave to appeal. The application must be dismissed.

The Court will now adjourn to reconstitute

AT 12.19 PM THE MATTER WAS CONCLUDED