Stevens v The Queen [2005] HCATrans 441 (21 June 2005)

--

Stevens v The Queen [2005] HCATrans 441 (21 June 2005)

Last Updated: 29 June 2005

[2005] HCATrans 441

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B20 of 2005

B e t w e e n -

LAURIE STEVENS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 21 JUNE 2005, AT 3.50 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR N.J. MACGROARTY, for the appellant. (instructed by Robertson O’Gorman)

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

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the point upon which we obtained special leave is a point which arises under, and in relation to, section 23 of the Criminal Code. It was a matter which had been raised squarely at trial, in a passage to which I am about to go, which was in the notice of appeal in the Court of Appeal but which was not argued in the Court of Appeal and which re-emerged by reason of suggestions raised by the learned President in the Court of Appeal, not taken up by counsel for my client in the Court of Appeal. So we are in the somewhat unusual position of having taken the point squarely at trial and the error or appeal that we wish to urge in this Court is in relation to a point that the Court of Appeal noticed, opined on but which was not the subject of argument by us in that court.

Can I take your Honours first to the way in which it arose at trial, in the appeal book starting at page 369. My learned junior at about line 25 is being asked by the learned trial judge in advance of the summing-up what ought to be in it. His Honour starts “Is there any” and my learned junior correctly anticipates that the question was, “Is there anything else?”

MR MACGROARTY: Well, there is one further thing I would submit that should be added to that and that is section 23, your Honour, because you have the evidence of Dr Vallati.

Your Honours have seen the references to that in our written submissions. Those are references to an expert concerning the matters to which my learned junior then turned.

The evidence of Dr Vallati is when the gun is struck in a certain location it can send up a vibration, the sear mechanism –

which affects literally the triggering –

was worn, and that the vibration he found on being struck in a certain position could let go.

Now, at about line 42 or so my learned junior asks in effect:

that raises as a matter of fact for the jury’s determination whether perhaps . . . whether the Crown has excluded beyond that that the rifle accidentally discharged at that point of time.

And he referred to that as a further proposition that arose. His Honour then says:

I thought of that possible line of analysis, but it seemed to me section 23 is more directed at an intentional act with an accidental event. The proper characterisation of your client’s account, I think, is one of extraordinary emergency followed by an instinctive-----

MR MACGROARTY: Grabbing for the gun.

HIS HONOUR: -----action to grab the gun, and I just wonder whether that – what you’re suggesting tends to muddy the waters a little. As part of that proposition, you have got to remember I said this, that it is not possible from the accused’s account to conclude that his action caused the rifle to fire, but even if it did he’s not guilty because he lacks the intention.

Now, that is a reference to directions with which we have absolutely no argument at all in relation to intention and murder. My learned junior agrees:

MR MACGROARTY: Because he would have no intention.

HIS HONOUR: He had no intention to harm the deceased. Isn’t that sufficient?

That is a critical question because that really was how the majority in the Court of Appeal determined this point against us, notwithstanding there was no argument by us. My learned junior responds:

Your Honour, perhaps as one view of the matter, but, nevertheless, the evidence of Dr Vallati is that it is there and could explain the discharge of the rifle upon being struck and as a – because of that evidence, that is a factual matter which I submit should be left with the jury because it is an additional factual matter, and in the normal way it is for the Crown to exclude that beyond reasonable doubt.

His Honour then refers to some possibilities. Could I then go down to, on page 370, about line 35 or thereabouts:

there is still that additional fact that according to the evidence of Dr Vallati, and it is for the jury to determine that additional fact, it could have discharged on that impact.

This is the impact upon the so-called emergency response. Page 371, after further debate between Bench and Bar, about line 45 his Honour says:

Well, perhaps you are right about that. I just have some doubts about the necessity to direct on accident.

MR MACGROARTY: You do or you don’t?

HIS HONOUR: I do, yes, in the context of the extraordinary emergency direction.

So there are two elements in his Honour’s reasoning at this point. The first is, the way we would express it, with respect, that the direction on intention for murder would subsume accident and the second is that given that there was going to be an extraordinary emergency direction there was no need for accident. Mr Feeney for the Crown is then called on, and puts the matter very simply:

Section 23 has no place, in my submission, for this reason: if it’s murder, then it is an intentional killing and section 23 doesn’t arise.

That is a very strong version of the subsumed point.

This is a case where it is murder or nothing –

and that is entirely correct, and it remained that way –

therefore, there is no manslaughter.

The considerations that arose –

and then he refers to some case law that I do not need to concern your Honours with at the moment. We interpolate at that point that the learned Crown seems there to be saying that a direction on intention necessary for the murder case – intention to murder or intention to kill or intention to cause grievous bodily harm – would suffice as a direction incorporating or encompassing the theory of accident because accident, naturally, would contradict intention, that is, if there was no intention, it might leave open accident. Now, in our submission, that reasoning is fallacious and is at the heart of the error of the judge. Mr Feeney repeated, as it were, the antinomy between section 23 and a murder intention direction at 372, about line 30:

the fact that where there is a charge of murder, there is no issue arising under section 23(1)(b) because of the essential element of murder that the accused intended to kill or do grievous bodily harm.

Then at page 373, after my learned junior stuck to his position, at about line 29 his Honour simply says:

I’m persuaded by Mr Feeney’s submissions.

Then further down:

If I’m to direct on accidental event, I would have to give them the Taiters direction, would I not?

The top of the next page:

I don’t think – I don’t think they would assist the jury in the circumstances.

MR MACGROARTY: All right.

It is not suggested, I think, that those words “All right” are anything other than “May it please your Honour”.

GLEESON CJ: At page 387 from lines 10 to 40 the jury are told what they had to find in order to convict.

MR WALKER: Of murder.

GLEESON CJ: Of murder.

MR WALKER: Yes, they are, your Honour. That is a good and clear demonstration of what his Honour had in this debate with counsel said would be the direction to be given.

GLEESON CJ: Rightly or wrongly, the trial judge seems to have taken the view that any question of accident was subsumed in that manner of putting it to the jury?

MR WALKER: Yes, there is no question of that, your Honour. That is how I have characterised it here this afternoon. There were two points taken. The main one is that the direction for requisite intention to murder would subsume things necessary in relation to accident in the sense that if there was accident that would be a way of leaving reasonable doubt obviously about intention. There are other ways in which that subsuming may be carried out. That was the argument which appealed to his Honour before the summing-up and he summed up, with respect, faithfully in accordance with what fell out from that debate.

KIRBY J: There was a forensic question which you have not mentioned, although it is mentioned in the written submissions, namely the appellant’s exclamation when within half an hour of the death he was asked to explain it. He said, “Well, I would call it an accident for the moment”, and the failure to mention accident, as it were, failed to give the hook of that in the event that – and deprive the appellant of the opportunity of the forensic force of that explanation at the time that the homicide occurred or the death occurred.

MR WALKER: Your Honour has our point, yes, that is so.

KIRBY J: So it is really the two points. It is the forensic expert, Dr Vallati, and the accused’s own statement.

MR WALKER: Yes.

KIRBY J: The failure to give an accident direction really deprived you of the opportunity of the jury passing upon that with the advantage of that evidence.

MR WALKER: Yes. Now, as your Honours know, forensically it extended beyond the trial. It goes to the Court of Appeal. During the course of the argument the appellant’s argument was put in two ways only – the word “only” is justified by the record of the learned President. The first was a fresh evidence point about which your Honours need not hear any more from me – dismissed. The second was an unsafe and unsatisfactory argument which embraced a deal of the material to which reference is made in relation to accident, but it was not a section 23 argument – and I should not add any words to that – it was not an argument about failing to put section 23, although that had been in the notice of appeal.

During the argument, as is recorded by in particular the learned President’s reasons but in the reasons of the other members of the court as well, her Honour raised with Mr Feeney the possibility that accident being so clear on the facts, that is, paragraph 23(1)(b) being so clearly activated, should that not have been put, and then to use the language of her Honour’s reasons, that is at the end of all of this, qualified says her Honour – qualified by the possibility of manslaughter.

As your Honours appreciate – and I think your Honour Justice Kirby noted this, if I may say so, with some point at the special leave application – my client was then – and still is, I should make it clear – not taking up suggestions of an alternative of manslaughter. Now, that is a context which may explain why section 23 standing on its own, as it can of course, as it does of course, was not the subject of further argument or resumed point taking after the learned President had raised the matter of section 23 plus the alternative of manslaughter.

Could I just unravel a bit what alternative means? I will come to section 23 itself in a moment. For present purposes, treating it as involving an accident, the qualification with the possibility of manslaughter arose, your Honours appreciate, because of section 289 of the Criminal Code. If I could take your Honours to that. The key to that provision in its – I will call it putative application to this case was that it imposed a duty on people who have in their charge or under their control certain things which would certainly include a loaded firearm.

The duty is “to use reasonable care and take reasonable precautions to avoid” the endangering of people’s life, safety, or health. At the end of 289, the way in Sir Samuel’s scheme it links in with the various provisions of homicide is that when there is “any omission to perform that duty” the person in question “is held to have caused any consequences which result to the life or health of any person”. That then links to section 293 in Chapter 28 – “Homicide”, et cetera – and that says relevantly that:

any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

That is the next step. Then section 291 defines unlawful killing as any killing unless it be “authorised or justified or excused by law”. Section 300 says that unlawful killing of another is to be murder or manslaughter. Section 303 says that unlawful killing:

under such circumstances as not to constitute murder is . . . “manslaughter”.

Then section 302(1)(a) says that unlawful killing:

if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm –

is murder. That was the statutory setting which was being invoked by Justice McMurdo. As the other two members of the court - - -

KIRBY J: What does accident do? It reduces it to excuse by law, does it?

MR WALKER: Would your Honour forgive me and allow me just to say one thing about 289 and then come back to 23? But, yes, it is excuse. The point about 289 which divided their Honours was that the majority in the Court of Appeal saw no possibility of section 289 applying on the facts which might be inferred from evidence – and I distinguish that as opposed to imaginative speculation – because the evidence did not show, apart from that which was sought by inference in relation to the murder case of the Crown, certainly my client’s case did not include having the rifle in charge or under his control at any time, thus 289 would never apply, thus no manslaughter. Below, both courts, and here, our position is this was murder or nothing. As I say, that may explain the exceptional circumstances that this was the point I now run by special leave in this Court was taken at the trial but not in the Court of Appeal.

Could I then move to section 23 so as to answer Justice Kirby’s question and come to the heart of our argument. Section 23 is in - - -

KIRBY J: What is that section in the Code called? I do not have the full Code.

MR WALKER: I am sorry, your Honour, section 23 is headed – it should be in our – I do hope they are reproduced, your Honour.

KIRBY J: I do not have the Part heading or the Division heading.

MR WALKER: It is Chapter 5 “Criminal Responsibility” and section 23 is actually headed “Intention – motive”.

KIRBY J: Yes, I have that much.

MR WALKER: I am sorry, your Honour was after?

KIRBY J: I did not have the chapter.

MR WALKER: Sorry, “Criminal Responsibility”.

KIRBY J: Thank you.

MR WALKER: I apologise, your Honour. Now, section 23(1) commences by subjecting its provisions:

to the express provisions of this Code relating to negligent acts and omissions –

and I have already taken your Honours to section 289 and it is subject to those provisions. Section 23, as you would expect in its place in the Code and given the subject matter covered by very general language, is an excusing provision:

a person is not criminally responsible for –

two things, and the language of (a) is markedly different from the language of (b), as you can see from the opening words. Paragraph (a) is you are not criminally responsible for certain acts or omissions. Paragraph (b) is that you are not criminally responsible for certain events. Now, there may be at the end of the day not a great deal of difference introduced by conduct being referred to in paragraph (a) and consequence being referred to in paragraph (b).

GLEESON CJ: It may be of some significance because the standard form of direction in a common law jurisdiction on a trial of unlawful homicide begins by telling the jury that the act of the accused causing the death of the victim must have been a willed act.

MR WALKER: Yes, your Honour. I am not saying there is no significance; I am saying that in many cases there will be very little significance. But, with great respect, we accept what your Honour the Chief Justice has said. It is possible, depending upon the meaning to be given, in the circumstances of a particular case, to the notion of an accident, it is possible indeed that there is a particular difference and it has to do with so-called willed acts.

One question of interpretation which, in our submission, perhaps neither this case nor any other readily imaginable, as it were, run-of-the-mill case, requires to be decided in a global way is whether paragraphs (a) and (b) of section 23(1) are wholly independent of each other, that is, with no overlap. As your Honours well know, with respect, a lot of the thinking in interpreting and applying 23(1) involves picking the level of description, specificity or generality, the immediacy in relation - - -

KIRBY J: I have a difficulty with this, Mr Walker. If the written law states two categories and if arguably one or other or both of the categories apply, then subject to such considerations as Alford v Magee it really is for the jury to decide and to be instructed on the law so that the jury decides whether a category applies or not. It is not for the judge to decide that.

MR WALKER: Your Honour, yes.

KIRBY J: You will remember in the special leave hearing that Justice Hayne directed your attention to Alford v Magee and said the answer to this may be that though it appears to have application, it is really a question of what the issues were at the trial and therefore it is a question of whether or not the directions given were adequate and appropriate to the trial, but counsel for the appellant obviously did not think so. He wanted to have at the trial the direction on this point, and I can understand myself forensically why he did so.

MR WALKER: Yes, your Honour. Your Honour has our point, yes.

GLEESON CJ: Which one was he asking for, (a) or (b) or both?

MR WALKER: Paragraph (b).

GLEESON CJ: Now, this has been there for 100 years or so, I suppose. Is it the case that in other Code States you have the same legislative scheme as appears in section 23(1)?

MR WALKER: Some of it, yes, your Honour. May I take that on notice?

GLEESON CJ: Certainly.

MR WALKER: I am not sure whether the same twinning or pairing appears.

GLEESON CJ: It is just that it would be very surprising if over the last 100 years no court in any of the Code States in Australia, including Queensland, has had occasion to explain the relationship between paragraphs (a) and (b) of section 23(1).

MR WALKER: I think I will be in a position tomorrow to certainly say that that surprise is not true, but the authorities of which I am aware do not cast light on the present controversy between the parties before this Court, but I will certainly be able to answer your Honour the Chief Justice’s suggestion of a surprising state of affairs. The state of affairs is not that surprising, no.

GLEESON CJ: Do Sir Samuel Griffiths’ notes on the Code indicate what he thought was the difference between (a) and (b)?

MR WALKER: To an extent, yes, and I will make these available to your Honour tomorrow. In his letter transmitting to the Attorney-General the draft – we do not have one of those marginal notes, that is on our researches, but in his letter transmitting he explains why he is intent on moving away from malice and maliciously and, in particular, he justifies his use of “wilful” where that has been used. In that context, that is referring to the use of “wilful” – we do not have it in our provisions but section 23 covers the whole Code, of course – he says:

which has accordingly been used in that connection for that purpose, but the use of which elsewhere in its signification of “not accidentally” is, in view of the rules already mentioned, superfluous.

GLEESON CJ: As you rightly point out, section 23 has to cover a whole lot of provisions other than homicide.

MR WALKER: Indeed. In this Court, Justice Gibbs in Kaporonovski [1973] HCA 35; (1973) 133 CLR 209 at 231 referred to a settled state of affairs but not in a way which, as I say, affects the position, we submit, that exists on the difference between the parties in this case. In other words, this is not a case which raises either comprehensively or in any fundamental way the notion of “accident”. This is simply a case which raises whether it should have been put when all three judges in the Court of Appeal said it was raised.

The subsuming argument therefore did not involve an argument about the exact limits or nature of the relation between paragraphs (a) and (b) in section 23(1); it rather raised a relation, as it must on principle, for the particular case.

KIRBY J: That is subject to Justice Hayne’s point on the special leave, that is to say that that is not the way factually the matter was run, that you ran a suicide case and that was what the focus was on and therefore that was what the directions were.

MR WALKER: That is what I was about to say, your Honour, yes, quite so, that the argument in this case – I have called it the subsuming argument – was whether, given the way the case had been fought, given those circumstances, whether the summing-up, which of course is to be addressed and considered in its particular context, was the murder direction about intention by its so-called subsuming of matters relevant to accident adequate, notwithstanding the learned junior’s request for accident to be put specifically.

Now, in the Court of Appeal the answer came back, yes, said the President – I am sorry, the President said it should have been put but added to manslaughter, which of course is most unwelcome to us, by reason of 289. The majority said, but 289 could not on the material that ought to have been considered by a trial judge considering such a direction – which we know can be put regardless of counsels’ desires – that would not have been appropriate. Section 23(1) and (1)(a), says the majority, might have been appropriate – there are passages to which I have to go in detail to explain that – but it turns out the actual summing-up was more favourable anyhow whereby no miscarriage. That is how the matter fell out in the Court of Appeal.

CALLINAN J: Mr Walker, Justice Gibbs discusses the relationship between (1)(a) and (1)(b) in Kaporonovski at pages 231 and 232.

MR WALKER: Yes, he does. That is why I can tell the Chief Justice that that surprising state of affairs does not exist.

CALLINAN J: No, that is right, and the cases referred to by his Honour are also much discussed over many years.

MR WALKER: That is right. I was just about to say for most of the century I think they have been. Now, your Honours, while at section 23, and I hope bearing in mind the stricture that examination of the possible miscarriage by reason of the direction involves close attention to the particular forensic course, can I remind your Honours that both sections 24 and 25 were the subject of directions.

Your Honour Justice Kirby said – and, with respect, not unfairly – that suicide was raised as an issue. More precisely, there was an alternative approach taken, either the deceased was about to commit suicide – that presented an extraordinary emergency, section 25. My client was mistaken within the meaning of section 24 that that was the position, and they were put. Under section 25, again the expression is that “a person is not criminally responsible” for certain acts or omissions.

One can see in the interweaving and relation of 23, 24 and 25, that under 25 you are certainly talking about acts which are not independent of your will and you are clearly talking about acts which do not bring about an event necessarily to be called an accident. It depends upon the particular emergency. So that there may be overlap but it is not a complete congruence.

KIRBY J: Do you remember in the special leave Justice Callinan, rather deftly, I thought, with respect, gave a little direction there, in about four lines, as to what could have been said to the jury to meet the 23(1)(b) point, namely, there is another category that the law provides. That category is accident, and you have to ask yourself whether it fell within that category. The mind asks oneself, why would a judge, given the language of 23, not do that? Then the Alford v Magee point came up. The judge would not do it because it was not addressed to the issue that was brought out in the trial.

MR WALKER: But that does not arise in this case. Your Honours, one of my unhappy memories of the special leave is that we did not have neatly and properly for your Honours available the transcript of which I have started argument this afternoon, your Honours may recall.

KIRBY J: Will you have a look at Justice Callinan’s direction overnight and in the morning say whether, as I am inclined to think, it was exactly what ought to have been said by the judge.

MR WALKER: Yes, “exactly” is perhaps – but, yes, your Honour, I shall put a precise response.

GLEESON CJ: Would the judge explain what the word “accident” meant?

MR WALKER: On authority, yes, your Honour, but I was trying about 10 minutes ago, I think, to draw back from this being the occasion for what might be called a generalised approach to a section 23 direction, the Taiters question. If pushed, we would say that there must be quite a few circumstances where it would not call for an explanation other than the use of the word. That does not mean it is one of those magic words that must not be glossed, but the question whether it must be - - -

GLEESON CJ: No, it may be right, but it is hardly likely that when your client said over the telephone this was an accident he had in mind section 23(1)(b) and necessarily meant exactly the same thing.

MR WALKER: Quite.

KIRBY J: It is an ordinary word of every day use in the English language, but it at least is a very strong forensic point, I would have thought, in the trial that he blurted this out.

MR WALKER: Yes, your Honour, of course, although I am bound to submit that under examination for the purposes of preparing an argument such as this the word is one that tends to slide away from ready grasp or complete grasp.

KIRBY J: I did not hear the last words?

MR WALKER: The word “accident” tends to slide away as to what exactly is the quality of an event that constitutes it an accident. Can I give just one example? There must be very few of us with experience on the road, whether as a driver or passenger, or indeed perhaps even as a pedestrian alongside motor carriageways, who is not aware that what everybody calls accidents occur all the time.

GLEESON CJ: It is a pity you are not able to argue this case on Thursday afternoon. We have a decision of the Court reserved on the meaning of the word “accident” but in a different context.

MR WALKER: Yes, your Honour, that is correct, it is a pity, but in our submission - - -

GLEESON CJ: The course of authority might indicate that the simplicity of the word is more apparent than real.

MR WALKER: Yes, that is what I am putting, your Honour, and I am certainly saying in this area the judicial learning that says that it has to do with what I am going to call reasonable foreseeability, having been foreseen or having been reasonably foreseeable, as a test of something which is not an accident really exposes the colloquial use of language in relation to motor traffic incidents as having nothing to do with the legal use of the word, which seems odd, because everyone can foresee that there may be a collision every time they get behind a wheel.

KIRBY J: All of that can be conceded and the complexity of the word in compensation or DVT or other context can be allowed, but in the criminal context what is being said when you say “This is an accident” is, “I didn’t mean to kill him. This is not a willed act. I didn’t will his death.”

MR WALKER: Now, your Honour has swapped - - -

GLEESON CJ: That is why I asked whether there is a difference between paragraph (a) and paragraph (b) because that is paragraph (a).

MR WALKER: Yes, your Honour, and your Honour Justice Kirby has put in one sentence and, with great respect, naturally perhaps in certain scenarios a combination of (a) and (b).

GLEESON CJ: Between (a) and (b) there is the word “or”, which suggests that (a) is different from (b).

MR WALKER: Yes. Well, they are different. The question is whether there is any semantic content that they have in common, any part of their semantic content that is an overlap. Your Honours, I note the time.

GLEESON CJ: We will adjourn at 4.30 pm.

MR WALKER: Thank you, your Honours. Sections 24 and 25 were to return the subject of specific direction as sought and, with respect, correctly so. That renders the subsuming argument rather difficult, because in the same way as section 23 was said by Mr Feeney, whose argument were adopted as his reasons by the trial judge, insofar as section 23 was subsumed by the murder intention direction, so of course was sections 24 and 25.

The subsuming operates like this. If the jury is satisfied that there is an intention to kill or to cause grievous bodily harm, that has excluded that which would be within the concept of extraordinary emergency, mistake of fact and accident. That is how the subsuming works, that if the jury finds guilt, then that one inexorably infers, given the direction, that they found the intention they have been told by the murder direction was requisite to be found beyond reasonable doubt, then, says the argument preferred by the majority in the Court of Appeal, that all you need that subsumes – my word, not theirs – that subsumes everything you would need for 23 because that intention utterly contradicts, drives out the possibility of accident, to which one of our arguments here is, that is also true of mistake of fact and extraordinary emergency.

KIRBY J: The Chief Justice has focused on the preposition “or” and that really takes you to those opening words of (a) “an act or omission” and (b) “an event”, and “event” is more global and the “act or omission” is more focused on the particular parts of the event. That all seems to give force to what Justice Callinan said in his spontaneous draft direction: there is another category that the law provides here, and that is “an accident”. So that you look not so much at the component parts of what the accused did and whether he willed them, but you look at the whole event and say, “Was this as an event an accident?”

MR WALKER: Yes. Then when it comes to the application of 23, a general provision to specific provisions, the one in question in this case is an application in particular to section 293, because it will be recalled that the causation which deemed someone to have killed is the causation of death “directly or indirectly, by any means whatever”, putting in train events, for example, which result in death.

GLEESON CJ: But that gives rise, does it not, to the question of manslaughter? Section 23, where it applies, says “a person is not criminally responsible”. That I would assume excludes manslaughter in homicide.

MR WALKER: Quite. That is why the President’s compressed statement, though, with respect, defensible, elides some steps of reasoning.

GLEESON CJ: But you can have an event that colloquially would be described as an accident that involves manslaughter.

MR WALKER: But falls foul of 289, for example.

GLEESON CJ: Well, manslaughter by a negligent and dangerous act at common law often involves an event that could be described as an accident.

MR WALKER: Yes, and the response of the law could be said as an admonitory statement, there are accidents and accidents. There are some for which nobody should be responsible and there are others which should not have come about because of some social standard having been breached.

McHUGH J: You do not raise any question of the failure to lead manslaughter to the juries.

MR WALKER: Well, we resisted it.

KIRBY J: And you are stuck with that because in the special leave - - -

MR WALKER: Yes.

KIRBY J: - - - we would not give you any opportunity to have another go at that.

MR WALKER: This is not something that counsel, as it were, does without regard to anyone behind him. Manslaughter is resisted by us. Now, the law is it can be put to the jury notwithstanding that resistance, but my position is murder or nothing, as the ground said.

McHUGH J: Well, it is very difficult on the evidence to accept that the deceased would have suicided. I have a strong impression that what actually happened is not revealed by the evidence.

MR WALKER: That would not be the first case in which that is true.

McHUGH J: No, of course it would not. I just wonder whether or not there was - I mean, the statement to the ambulance about accident for the moment might have been carefully thought out, although that seems improbable.

KIRBY J: Justice McHugh is being very suspicious at 4.30.

MR WALKER: Your Honours, we would simply say this, that my learned junior had a heavy brief is all the more reason why, if 24 and 25 were to be put, for exactly the same reason and with exactly the same status of judicial imprimatur, so should section 23.

GLEESON CJ: But regardless of whether you want to argue manslaughter or not and regardless of whether we say the judge should have left manslaughter to the jury, you cannot lightly assume that the judge could have directed the jury about accident without grappling with the problem of
manslaughter in its application to this case, which is exactly the problem that the President bumped up against.

MR WALKER: I entirely accept that.

GLEESON CJ: Is that a convenient time, Mr Walker?

MR WALKER: Yes, it is, your Honour.

GLEESON CJ: We will resume at 10.00 am.

AT 4.31 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 22 JUNE 2005