Carter v The Queen [2005] HCATrans 175 (21 March 2005)

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Carter v The Queen [2005] HCATrans 175 (21 March 2005)

Last Updated: 5 April 2005

[2005] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B102 of 2003

B e t w e e n -

STEPHEN WAYNE CARTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 10.32 AM

Copyright in the High Court of Australia

MR M.C.CHOWDHURY: If the Court pleases, I appear for the applicant. (instructed by Legal Aid Queensland)

MR R.G. MARTIN, SC: May it please the Court, I appear for the respondent. (instructed by Director of Prosecutions (Queensland))

McHUGH J: Yes, Mr Chowdhury.

MR CHOWDHURY: First of all I have to seek dispensation for compliance with rule 41.2. We are three days late.

McHUGH J: Yes. Well, I think you can proceed straight to the merits of your application.

MR CHOWDHURY: In this case the issue of what caused the deceased’s death had to be the subject of expert evidence, and to do that the Crown called the clinical pharmacologist, Dr Pillans, who, on the critical issue, namely whether the act of injecting heroin was a substantial cause of death, was unable to so conclude due to the difficulties or the confounders, the expression he used, of the vast array of drugs that the deceased had consumed.

There was no other evidence, with respect, that the jury could use to reach that conclusion. If the expert could not reach that conclusion then neither could the jury. In these circumstances it is submitted that the Court of Appeal erred in holding that it was open to the jury to find that critical issue of causation, which was the sole issue really before the jury. In essence, my argument is summed up in my outline, and that really is the point that is sought to be ventilated

McHUGH J: Are there not some cases where the courts have said that if somebody intends to do something which is an offence then one can take that into account?

MR CHOWDHURY: They can, but - - -

McHUGH J: On the question of causation, not really on the question of intention.

MR CHOWDHURY: In some circumstances that may be so, but in my submission that is not the circumstances that applied in this kind of case. With the issue of causation, what actually caused the deceased’s death was so fraught with difficulty as a result of the cocktail of drugs she had consumed, that it could only be determined by expert evidence - - -

McHUGH J: Yes, I know, but if you look at the merits of the case one might wonder whether or not Royall is definitive. After all, when lawyers talk about “substantially contributing to death”, they use the word “substantial” in the sense of not de minimis. Here Dr Pillans said that it was a significant cause, did he not?

MR CHOWDHURY: He said it could be - - -

McHUGH J: Could be a significant - - -

MR CHOWDHURY: Could be a significant contribution.

McHUGH J: Yes.

MR CHOWDHURY: But I do not think we can say it is a substantial contribution given - - -

McHUGH J: Well, then a question arises in what sense he uses the word “substantial”. Lawyers tend to use this expression, as I say, as meaning not de minimis.

MR CHOWDHURY: Well, in my submission, in the way the Court of Appeal approached it was that “substantial” has its ordinary English meaning, and that was the context in which Dr Pillans was using it, and that is why I make the submission that I do.

McHUGH J: Yes. Well, you put your submissions clearly in writing and I think we understand them, Mr Chowdhury.

MR CHOWDHURY: Thank you, your Honour.

McHUGH J: Thank you. We need not hear you, Mr Martin.

The Court is of the view that there is no reason to think there has been any miscarriage of justice in this case, nor any reason to doubt the correctness of the decision of the court below. Accordingly, the application must be refused.

AT 10.36 AM THE MATTER WAS CONCLUDED