Dolley v The Queen [2004] HCATrans 381 (8 October 2004)

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Dolley v The Queen [2004] HCATrans 381 (8 October 2004)

Last Updated: 13 October 2004

[2004] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B57 of 2003

B e t w e e n -

TIMOTHY WILLIAM DOLLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 OCTOBER 2004, AT 10.13 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC: May it please the Court, I appear with my learned colleague, MR A.W. MOYNIHAN, for the applicant. (instructed by Legal Aid Queensland)

MR M.J. COPLEY: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Byrne.

MR BYRNE: Your Honours, the applicant was convicted of arson in the District Court, Toowoomba, and sentenced to 12 years imprisonment for that offence. At his trial, the central issue for consideration by the jury was whether he, in terms of the elements of the offence, “wilfully” set the fire. It is correct, as the respondent puts in his written submissions, that the jury were directed that the element of “wilful” had to be found by the jury beyond reasonable doubt. However, the jury faced that task against this background.

There was no proper direction, in our respectful submission, as to circumstantial evidence or the drawing of inferences from circumstances, and, secondly, the jury were given two contradictory directions as to the meaning of “wilfully”. Further, of those two contradictory directions, one of them, as found by the Court of Appeal, was wrong in law. That incorrect direction had the attraction, in our respectful submission, of homey simplicity, such that it could be easily understood and wrongly adopted by the jury in their considerations.

We have set out the context of that direction in our written outline and just take your Honours briefly to it. That is on page 162 of the application book, paragraph 3.6, where his Honour, no doubt with the objective of assisting the jury to understand what was required of them, gave them directions about awareness and linked that awareness to such homey things as being aware that one has a house, one has a family, one may own a cat or a dog, and the jury were left with the impression that that was sufficient to satisfy the element of “wilfully” under the Criminal Code.

The Court of Appeal concluded for the purpose of this application that due to a second and later set of directions being given by the trial judge, albeit without telling the jury that the first set of directions were incorrect, that was sufficient to enable the trial to be a fair one and to say that no miscarriage of justice was done to the applicant.

We say that that proposition may be tested this way. If two directions are given on an element and one of those is incorrect, it does not matter what order they were given in. For example, if the correct or orthodox direction were given first in time and, in the course of a redirection, an indirect assistance to the jury, such as the homey example given here, is that sufficient for a trial according to law and resulting in a 12 year sentence? Rather, in our submission, as stated by this Court in Simic v The Queen, it would in those circumstances be reasonably possible that the misstatement by the trial judge may have affected the verdict. We submit that that proposition is made out in this case.

Our second point is this, if we may take your Honours to page 139 of the application book, in the course of the judgment of the Court of Appeal, there is a passage in the judgment going, in effect, from line 29 to line 40, where this is said:

the direction in order to convict that fact –

that is, the fact relating to the state of mind of the applicant –

must be inferred beyond reasonable doubt, adequately directs the jury to the test to be applied, because obviously, if the inference is drawn beyond reasonable doubt, then ipso facto, all other reasonable possibilities must have been excluded.

In our submission, the correct approach is this. There were a number of hypotheses open in this matter. Relevantly, for this point, there were three: firstly, that the applicant was not aware of the likelihood of fire being caused; secondly, that he was aware in the sense of being aware of owning a house or a dog, as first explained by the learned trial judge; or thirdly, that the applicant had an actual awareness at the time of doing the act that fire was a likely consequence.

The correct approach in that set of circumstances is that if the jury considered more than one of those hypotheses to be rational or reasonable then the applicant was entitled to be found not guilty. The jury were never so directed. The final point we make in that aspect is that because of those competing inferences and hypotheses, and due to the manner in which the conflicting directions were given to the jury on the element and not withdrawn, the court could not know how the jury reasoned, whether they reasoned by way of some being satisfied as to the incorrect test and others being satisfied on the correct test.

In our submission, in those circumstances, the applicant did not have a fair trial and has potentially suffered a miscarriage of justice. In our submission, this is a case that warrants special leave for those reasons.

McHUGH J: Thank you, Mr Byrne. Yes, Mr Copley.

MR COPLEY: Your Honours, the erroneous directions which are at page 32 of the application book were preceded by correct directions on the Friday, and I refer - - -

McHUGH J: Well, you have to say that the subsequent directions impliedly corrected, and that the jury would have so understood it.

MR COPLEY: Yes, I do say that, because when his Honour was directing the jury on the Friday, at page 29 of the record book in the summing up, he told them that he would go back over the matter on the Monday, and then before he adjourned on the Friday, at page 34, he invited them to:

Keep an open mind over the weekend –

about the matter. So the jury would have understood that whatever they had been told was provisional in a way, and then on the Monday correct directions were given, which were sufficient to overcome the misdirection on the Friday at page 49, line 20 down to line 40. I invite the Court to peruse that.

GUMMOW J: Anyhow, you also say that this was a strong case, do you not?

MR COPLEY: Yes, he was in a small room with an oxyacetylene torch. It was carpeted, it had papers; it was an office. I posit this question rhetorically, how could a jury have concluded otherwise that he must have been other than simply reckless as to the consequences of using that in the space that he was in? So they really had no other option open to them but to convict. His Honour - - -

McHUGH J: We do not want to hear you further. Yes, Mr Byrne, anything in reply to that?

MR BYRNE: No, thank you, your Honour.

McHUGH J: This case requires an extension of time. The application must be refused on the ground that the application has insufficient prospects of success if special leave were granted. Accordingly, the application is refused.

The Court will now adjourn to reconstitute.

AT 10.22 AM THE MATTER WAS CONCLUDED