Folland v The Queen [2005] HCATrans 448 (23 June 2005)

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Folland v The Queen [2005] HCATrans 448 (23 June 2005)

Last Updated: 1 July 2005

[2005] HCATrans 448

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B44 of 2004

B e t w e e n -

KENNETH WAYNE FOLLAND

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.52 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please your Honours, I appear for the applicant with my learned friend MS G.A. BASHIR. (instructed by Robertson O’Gorman)

MR M.J. COPLEY: If the Court pleases, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, this application raises what are, in our submission, a number of important and interrelated questions concerning the administration of criminal justice. As your Honours are aware, the applicant was convicted of the crime of manslaughter and sentenced to a lengthy term of imprisonment in consequence of that conviction.

The first issue raised by the circumstances of his trial and conviction and the grounds of this application concern whether this was a case in which there should have been a special verdict requested from the jury pursuant to the provisions of section 624 of the Criminal Code (Qld). That issue in turn, in our submission, your Honours, raises questions about the need for a unanimous finding by the jury, not of facts for the purpose of sentence, but what are, in our submission, effectively elements of the offence upon which the determination of the guilt of the applicant was based.

This, in our submission, is a case where the issue left to the jury was one essentially of, if they were to find a verdict of manslaughter, whether that would be based on what can shortly be described as provocation manslaughter or, alternatively, on the basis of either non-negligent or criminal negligent manslaughter.

GLEESON CJ: The substratum of facts would be the same in each case, would it not? It would be a question of the character that they bore. The facts were pretty simple, were they not? Did your client not take after somebody in a car and run him over?

MR BYRNE: That in one line, with respect, your Honour, was describing the conduct alleged against him, but the important issue from the point of view of determining the level of his culpability, and indeed we would submit the very nature of his culpability, was whether he had acted with an intent to inflict grievous bodily harm or, alternatively, with an intent to kill.

Now, it was only where those two matters, an intent which might shortly be described as a murderous intent, was established that the issue of provocation would arise. That was left to the jury, of course, on the facts of the case, but the jury’s findings as to the nature of his conduct in driving the motor vehicle on the occasion in question might have been very different. They may have been based on a finding of murderous intent. On the other hand, there may have been a reasonable doubt about that matter and the verdict of guilty may have been based on a finding of a lesser intent on the applicant’s part.

Now, that, in our submission, would have had a profound impact on the nature of the offence for which the applicant was in fact convicted and, in turn, that would in consequence have profoundly affected the nature of the penalty to be imposed. As your Honours are aware, in this case there was a declaration made in relation to the applicant that he had been convicted of what is described in the legislation as a serious violent offence and as a result he was eligible for release on parole after having served 80 per cent of his sentence as distinct from 50 per cent of his sentence.

So the finding as to the nature of his conduct which was made by the judge alone in this case, which may have been inconsistent with the finding of the jury, had the effect of not only subjecting the applicant to a considerably increased sentence because of the finding as to the level of criminality involved in his conduct, but it also meant that he had to serve a much greater proportion of that sentence actually in custody than he otherwise would have in practical terms.

Your Honours are aware the sentence that was imposed was one of nine years. If he had not been the subject of the serious violence offence declaration, he would have been eligible for parole after four and a half years. With an order of that kind in place, his actual time to be served is something in the order of approximately seven and a half years. So it is a question of three years actual custody involved in the distinction between the two possible outcomes.

In the applicant’s summary of argument we have sought to draw attention to what appears to be an important decision in this area which is a decision of the Court of Appeal in Queensland in a case of Leivers and Ballinger. The particular passage of importance in that decision is cited in full in our summary of argument at page 93 of the application book and, in particular, at paragraph 3.2, alongside line 30.

GLEESON CJ: What page of Leivers and Ballinger?

MR BYRNE: The actual page, your Honour, in the report is at page 662 and it is at line 25. Your Honours, that passage which commences with the words:

When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences.

Now, that important phrase “involving materially different issues or consequences” is, in our submission, enlivened in the circumstances of this case because a conviction effectively based on a finding of provocation and that in turn requiring proof beyond reasonable doubt of murderous intent is distinctly different from a conviction of manslaughter where the - - -

GLEESON CJ: Where does the Court of Appeal deal with this point?

MR BYRNE: Your Honours, that particular issue was not taken in the Court of Appeal.

GLEESON CJ: Was it taken at trial?

MR BYRNE: It was taken at trial in the sense that the learned judge was asked by defence counsel for a special verdict to be considered.

GLEESON CJ: No, was the point taken either at trial or in the Court of Appeal that the judge would have to direct the jury that they would have to be unanimous on the particular basis on which they found manslaughter?

MR BYRNE: The issue was raised. I have to concede, your Honour, that the precise point about the need for directions as to unanimity was not the subject of a request by defence counsel. That much is conceded, your Honour.

GLEESON CJ: Well, this is a point that has been sought to be taken for the first time here.

MR BYRNE: It has to be said that the matter was indirectly raised. I can take your Honours to the relevant part of the materials. In the application book at page 61 defence counsel said - - -

GLEESON CJ: But if your argument about this is right, the logical corollary of it is, is it not, the judge would have had to direct the jury that in returning a verdict of guilty of manslaughter they had to be unanimous as to the basis on which they arrived at that conclusion?

MR BYRNE: If they were to find that the verdict of guilty was based on provocation manslaughter, yes, that is the logical corollary. That, in our submission, is effectively what the authorities – and it has to be conceded there is some tension between the authorities in relation to this matter. Leivers and Ballinger has not been followed in New South Wales.

GLEESON CJ: No.

MR BYRNE: It, with respect, seems to have been misconceived in the submissions from my learned friend here where it is put against us that this was not a case requiring any unanimity because essentially the verdicts were the same. It did not matter - - -

GLEESON CJ: Suppose you have a case in New South Wales where you could have a verdict of manslaughter on the basis of provocation or a verdict of manslaughter on the basis of diminished responsibility and six members of the jury think it is provocation and six members of the jury think it is diminished responsibility, what is the result, not guilty?

MR BYRNE: Certainly not, your Honour. There would be in that situation a disagreement and a retrial.

GLEESON CJ: New trial?

MR BYRNE: Yes, your Honour, but could I say this was not the case - - -

GLEESON CJ: That has been specifically rejected in New South Wales, has it not?

MR BYRNE: Not specifically rejected.

GLEESON CJ: I thought the view taken in New South Wales – and I thought there was some decisions that dealt specifically with this question – was that it is for the judge in a circumstance like that in sentencing to decide for the judge’s purposes of sentencing what the basis should be taken to be.

MR BYRNE: Depending on the circumstances, your Honour. As your Honour is aware, that decision of a five Bench court in New South Wales of which your Honour was the presiding judge in Isaacs 41 NSWLR 374 - - -

GLEESON CJ: That is the one I had in mind.

MR BYRNE: - - - that authoritatively looked at that issue, but it was left open that there may be exceptional circumstances in which the verdict was capable of such different interpretations that it may be desirable for a question to be asked. That was, it has to be added, generally an undesirable course, but it was left open, in our submission. The difference here is that under the law in Queensland governing criminal procedure there is a specific provision for a special verdict to be taken. That does not exist in New South Wales, so it was not a matter that arose for consideration expressly in the decision in Isaacs.

It was referred to by this Court in its decision, again obliquely and not by way of any firm finding as to the approach that should be taken, in Cheung, which was a decision of the Court in 2001, again arising issues there relating to the approach to sentencing following a verdict which was capable of different interpretations.

Your Honours, the situation is different in Queensland for the reason that there is in this State provision for a special verdict, unlike most other States, as far as I am aware. It is also important in Queensland because what is said to be a protection provided to the accused person against the risk of a finding which is inconsistent with the jury verdict, in other States, and most particularly in the decision in Isaacs and in other cases which have followed Isaacs, it is necessary for an adverse finding against an accused person for the purpose of sentence to be established beyond reasonable doubt. That was of course confirmed by this Court’s decision in Olbrich some years ago.

By statute in Queensland, section 132C of the Evidence Act, it is only necessary for a judge when finding facts for the purpose of sentence to find those facts proved on the balance of probabilities. So what has been described as a protection in other places does not exist and it, in our submission, makes the need for a special verdict to be left to a jury in an appropriate case all the more important.

Your Honours, one other matter that is raised through the grounds of the application is the manner in which the Court of Appeal dealt with the contention that was put in that court that the applicant’s conviction was – it was referred to as unsafe and unsatisfactory, as the court has said – unreasonable having regard to the evidence. That ground of appeal in the Court of Appeal was dismissed on the basis in part, we would submit, that the strength of the Crown case was given some added force by the absence of any evidence having been given by the applicant in the trial proceedings.

In our submission, that conclusion was wrong and it was an erroneous basis on which to dismiss his appeal on that ground in the Court of Appeal. That is the matter that came to attention when the issue was raised whether this was a matter which should be brought before this Court. Having been brought before this Court, the issues that arise out of the special verdict, the failure to give or to leave to the jury the option of finding a special verdict, and that the very important consequences that have flowed from that in terms of the nature of the applicant’s sentencing are matters which we concede, as your Honour the Chief Justice has clearly noted, were not matters raised in the Court of Appeal.

There are, in our submission, significant issues or at least a significant issue which brings this matter before this Court for consideration, namely, the way in which the Court of Appeal dealt with the unreasonable verdict issue. That, in our submission, legitimately brought before the Court – it is not a matter that could have been raised before the Court of Appeal; it is a direct complaint about the manner in which the Court of Appeal dealt with the case – raises for consideration these other issues which, in our submission, are important issues in the administration of criminal justice.

CALLINAN J: Mr Byrne, could I just ask you a question. Page 61A of the application book, line 20, that is in the discussion with the trial judge after his Honour had summed up, and that is counsel – Mr Farr was counsel for the - - -

MR BYRNE: For the defence.

CALLINAN J: Defence.

MR BYRNE: Yes.

CALLINAN J: He seems to be saying, unless I have misread it, that a special verdict of the kind which you say would have been appropriate would not be necessary if the trial judge were prepared to proceed upon the basis of provocation. Is that how you read it?

MR BYRNE: No, I do not think, with respect, your Honour – the way the matter was - - -

CALLINAN J: But just look at this, Mr Byrne. He says:

it is quite clear, and as we have discussed . . . that the nonintentional manslaughter is unlikely, so that any verdict on that basis is in all likelihood going to be based upon section 289, so if your Honour was prepared to proceed in that way, then there would be no necessity to bring the jury back in for anything.

It is a little equivocal, but I must say I read it as suggesting that if the trial judge were prepared to sentence, in the event of a guilty verdict, upon the basis of provocation, then a special verdict would not be necessary. It is equivocal but - - -

MR BYRNE: I take what your Honour says. I think by way of background the point should be made that the defence ran this as an all or nothing case. It was an accident. It was either murder or an accident.

CALLINAN J: But of course his Honour was not bound by that. His Honour had to sum up.

MR BYRNE: Of course.

CALLINAN J: And his Honour seemed to be leaning, if anything insofar as one could draw an inference, towards provocation rather than gross negligence.

MR BYRNE: Well, what happened, your Honour, there were three bases on which manslaughter was left to the jury, one provocation manslaughter, one what was described as non-intentional manslaughter, that is an intention to inflict harm falling short of grievous bodily harm, and the third one was what can loosely be described as gross negligence manslaughter, and that is what is covered by section 289 of the Code. So what he was referring to there were two separate bases for manslaughter, namely, non-intentional manslaughter and criminal negligence manslaughter.

GLEESON CJ: The second sounds a little theoretical, does it not?

MR BYRNE: Very much, and that is why it was said there non-intentional manslaughter is unlikely. It was open because it may have been open to the jury to consider that the car was being driven at this deceased man to frighten him without causing him any grievous bodily harm, without actually hitting him in practical purposes. It was an unlikely matter, it was conceded by both counsel to be an unlikely outcome, but as things sometimes happen it was the only issue that was addressed in a question asked by the jury, namely, could we be redirected about the distinction between grievous bodily harm, which would have constituted of course a murderous intent, and harm falling short of that, which would have been what has been loosely described here as non-intentional manslaughter. That was the background against which that matter was being discussed here.

I appreciate what your Honour Justice Callinan says, it is equivocal, but there were earlier remarks about this matter being a suitable one and the Crown agreed for a special verdict. That position was later changed. But
counsel for the defence did say that he did want a special verdict even though there were some perhaps equivocal remarks in relation to it. May it please your Honours.

GLEESON CJ: Thank you, Mr Byrne. We do not need to hear you, Mr Copley.

The applicant seeks to raise some issues that were not raised in the Court of Appeal in this case. We think that having regard to the particular facts and circumstances of the case, there are insufficient prospects of success of an appeal to warrant a grant of special leave to this Court. The application is dismissed.

We will adjourn for a short time to reconstitute.

AT 11.15 AM THE MATTER WAS CONCLUDED