Carmody v The Queen [2006] HCATrans 140 (10 March 2006)

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Carmody v The Queen [2006] HCATrans 140 (10 March 2006)

Last Updated: 22 March 2006

[2006] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2005

B e t w e e n -

WAYNE DAVID CARMODY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 11.54 AM

Copyright in the High Court of Australia

MR B.W.WALKER SC: May it please the Court, I appear with my learned friend, MR A.J. KIMMINS, for the applicant. (instructed by Ryan & Bosscher)

MR D.L. MEREDITH, May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J: Yes, Mr Walker.

MR WALKER: Could I take your Honours directly to the application book, page 23, where, together with the cross-examination upon it, appears the evidence which is at the heart of the material which was then assessed by the Court of Appeal in the appeal under section 668E against a conviction of murder. My client may be treated for all purposes since the way in which the matter was approached in the Court of Appeal as not the shooter, as the person who engaged the victim in conversation and who had ceased that conversation, ceased what might be called the encounter, the openly - - -

KIRBY J: But it can be taken that he knew that Mr Blatch went out there with the gun?

MR WALKER: For present purposes, it would be unwise for me to put any other basis and your Honours should approach the special leave application on that basis.

KIRBY J: What was he there with the gun for?

MR WALKER: It is not to say that there - - -

KIRBY J: People who take guns tend to put themselves and others into lots of risk.

MR WALKER: Quite, and hence the significance of the way in particular in which this court addressed the matter in Gillard, a gun in Gillard too, absolutely clearly well-known before the event; indeed, even the cocking of the gun in Gilllard probably known before the event by the non-shooter. But, your Honours, for present purposes may I quickly take you to the heart of the matter in relation to the section 8 involvement, which is of course that which, if there is any merit in our application, justifies special leave – “back-up” is the word used at about line 22.

GUMMOW J: Just a moment, section 8 of the Code?

MR WALKER: Section 8 of the Code.

GUMMOW J: Yes.

MR WALKER: Section 8 of the Code, together with paragraph 302(1)(b) in the definition of “murder” - both are set out in the supplied materials - were of course the subject of consideration by this Court in Barlow but not, in our submission, in a way which completely covers the matter here, which is no doubt why that has not been said against us by the respondent.

The evidence upon which the section 8 involvement, the deemed committing of the same offence, was put by the Court of Appeal against my client who represented himself in the Court of Appeal, must depend on the back-up evidence, so that the conversation before the visit, just before the visit:

He wanted him to go with him, hide in the bushes like back-up.

Now, those are the words he used?-- I think so.

KIRBY J: Back-up?

MR WALKER: Back-up. Now, “back-up” is then repeated in the cross-examination to test that, at the foot of page 23, top of page 24, so that the cross-examiner manages to get the witness to adopt some slightly different words:

‘Do you want me to hide in the bushes and back you up?’

That is Blatch to my client, Carmody. Now, that was the entirety of it. What is critical is that in the Court of Appeal, of the various bases upon which the Crown case had been put, the cases under section 7, “aid, abet, counsel, procure”, were, with great respect, correctly rejected as not reasonably open; appeal upheld in relation to the possibility of the jury having convicted on those grounds, and that is a highly significant matter bearing in mind the kind of facts which could produce “aid, abet, counsel or procure”, and the Court of Appeal said not a sufficient factual case on that evidence to support it.

We of course do not know how the jury reasoned either corporately or individually to their result. What we do know is that the Court of Appeal reasoned that there was a section 8 case available, notwithstanding what they themselves identify as a failure by the trial judge in directions to distinguish between two quite vitally important ways of putting the section 8 common intention and unlawful act. Could I take your Honours to the way in which the Court of Appeal dealt with that. It is at pages 69 and 70 of the application book and your Honours will see there set out in extenso the relevant part or the most important part, I should say, of the summing-up on the point, and the possible agreements are set out starting at the foot of page 69:

Agreeing to go there for the purpose of intimidating the person by confronting them with and threatening them with a rifle would involve an unlawful purpose and agreeing to go there on the basis that the back-up person could use the rifle if he thought he should, even though it was in circumstances where it was not lawful to use it, that would also involve an unlawful purpose.

So that, in answer to the question which, with great respect, Justice Kirby correctly asks at the very outset, “Well, why would one suppose a gun was there?”, just as in the robbery as opposed to murder example in Gillard, so here the notion of a rifle used to threaten, which of course can be done by way of back-up – does not have to be the beginning of a conversation with somebody; you start with a gun, you back-up if the conversation is not going in such a way as you would want it to. In fact, as their Honours - - -

KIRBY J: What was that case in Queensland where the gun went off in the office?

MR WALKER: Stevens.

KIRBY J: Stevens, yes.

MR WALKER: But there is no accident or other point here.

KIRBY J: No.

MR WALKER: I have a second point, which is about manslaughter, but I will come to that in just a moment.

KIRBY J: Yes.

MR WALKER: Now, what is clear is when one goes to page 69, paragraph 8, that in disposing of the other – that is, in reasoning to upholding the appeal on the other section 7 grounds, their Honours, again with respect, correctly reasoned that because Carmody and Davies were no longer in the converse that might produce the need for back-up, one could not have a section 7 involvement making Carmody liable for Blatch’s murder, or the murder by Blatch, simply because of the sequence of events that happened. Now, the same thing of course applies in terms of the reasoning for the section 8 involvement. Their Honours say, and correctly, on page 70, paragraph [14], that:

It might be thought, at first sight –

I interpolate and there is no new look that changes this –

that one difficulty with those directions is that the learned trial judge did not distinguish between the second and third bases –

The proper way to understand that expression “second and third bases”, we submit, is the difference between taking the gun to intimidate; that is, present it but not discharge - - -

GUMMOW J: The second basis is what?

MR WALKER: The second basis appears to be the basis that one finds – the second and third bases, I should say - - -

KIRBY J: Paragraph [2].

MR WALKER: It is in paragraph - - -

KIRBY J: Paragraph [2].

MR WALKER: Well, the difficulty is that the bases are referred to in paragraph [2], but the third basis, the one that talks about the section 8 involvement secondly – one sees that section 8 is also there in the second basis – is that you need to find out what that common intention was in relation to the unlawful purpose. Authorities are plain on that. You have to identify it. That is sought to be identified in a sort of way at the foot of 69, top of 70 where you distinguish between having a common intention to prosecute the unlawful purpose of using a rifle obviously by way of presentation rather than necessarily discharge to intimidate, as opposed to a common intention to prosecute the unlawful purpose of discharging the rifle if circumstances required according to the judgment of the shooter.

Now, in paragraph [14] on page 70 of the application book the trial judge’s summing-up is correctly criticised for failing to distinguish in a way that Barlow for example and this Court in Gilbert and Gillard have made it clear is absolutely critical, you must identify what it is, that it was the common intention, proved against the accused, the non-shooting accused, what was the common intention to prosecute, what was it that they commonly agreed to prosecute. Paragraph [14] sweeps all that aside. Perhaps the Court of Appeal did not have the assistance from the appellant in person that might have been required but, in our submission, that does not make the injustice, if this is uncorrected, any the less; if anything, perhaps the more.

Their Honours deal with that matter by saying it might have been possibly confusing to have distinguished between those bases, and in our submission, that is completely wrong. It is never possibly confusing to distinguish between the bases which have to do with a common intention by which one becomes criminally liable, deemed to have done the shooting which you did not do, and thus murder. It is never possibly confusing to point out a distinction which after all the jury already had before them.

Now, it is for those reasons, in our submission, that on the first point; namely, the direction in relation to the evidence, all of which your Honours have now seen in effect as to the common intention, this was a case which, both by reason of the direction and the paucity of that evidence, the inadequacy of that evidence, should have led to the same fate for this section 8 case as the section 7 cases had suffered; namely that the Court of Appeal should have held that the evidence simply did not support it; the verdict was unreasonable. Now, the second point arises in relation to manslaughter.

GUMMOW J: Is there a relevant passage in the summing-up about common purpose?

MR WALKER: Well, can I take your Honours to that. The short answer is ultimately, that is, eventually there is put – perhaps I will take you to it directly, 52 to 53 of the application book, the defence case is put. We do not really have a complaint about this but of course we do have a complaint about being convicted on the prosecution case. There, there is a defence case on the facts cutting back the nature of the common intention. As to common intention itself I am bound to say that one needs to pick it up first at I think 43 or thereabouts. Perhaps we start at 38 with manslaughter/murder being introduced but unsatisfactorily. At 39 you have about line 10 the beginning of the basic definition of “murder” and in particular obviously a reference to paragraph 302(1)(b). Then we get down to more of that at the foot of page 39 about line 50 or so. The judge said to the jury:

The difficult area is that the act must be done in the prosecution of an unlawful purpose.

Now, there is no relation there to section 8 at all, nor is there a distinction of a kind that I have already addressed upon. See the top of page 40:

intimidating him but not actually shooting him.

Then at page 40, line 30 they are told:

What you need is to be satisfied that the shot was fired as part of an actual attempt to threaten or intimidate Davies and if it is not possible to exclude that Davies was never aware that there was someone else hiding in the bushes before the shot was fired I would think that you could not convict under section 302(2) –

that must mean 302(1)(b) –

but that leaves the other basis of murder entirely open to you to consider.

That is not explained, with respect. He then says he is going to move on to some other matters of law. Then at the foot of 40 starts the closest thing to what Justice Gummow has just asked but it disappoints, as it were:

Sometimes, two or more people agree to do something unlawful. Now even though one of the actually does the criminal act –

Now, those of course are different concepts, as section 8 and with the combination with paragraph 302(1)(b) make clear:

each of them is criminally responsible or guilty of the offence they actually agreed –

He is now talking about matters which are not 8 and 302(1)(b). He is just talking about ordinary concert. Then we come over to 42 and a very unfortunate prefatory word – line 40 “But more remotely” said his Honour to the jury – remotely from their considerations, remotely from the facts, abstruse law, it is not clear –

sometimes two people agree to do a particular criminal act but while they’re putting that agreement into effect a criminal act other than the one that they agreed to do –

now his Honour is turning to section 8 in combination perhaps with 302(1)(b) and then he says:

But the criminal responsibility of the other party to the original plan depends on whether the criminal offence actually committed is a probable consequence of putting their common intention into effect.

Of course, nothing that was then emphasised by this Court in Gillard, albeit not a Code decision, was ever then adumbrated to the jury. Coupled with the manslaughter direction which, in our submission, is a most unfortunate direction, recognised by the Court of Appeal as effectively taking manslaughter away, then in our submission, this was a fatally flawed trial - - -

KIRBY J: How could the jury properly have come at a verdict of manslaughter in this case?

MR WALKER: As explained in Gillard, because, notwithstanding you set out to do something unlawful by common intention with a gun and notwithstanding that guns are things that people shoot with, that it is for the jury to have as one of the choices - and that is the key point – as one of the choices, particularly in the Code State with section 576(1) saying that if it is available on the facts it is available, in this case one of the choices would have been to say that it was never within the common intention in section 8 that the gun would be used in any way which would meet the likely effect required by paragraph 302(1)(b), endangering human life.

Now, that is a matter of fact for the jury. The jury might say, “A person with their hand on a gun, that’s enough”. Another jury might say, “No. Hand on gun, to brandish it, is quite different”, and that of course underlay this Court’s disposition in Gillard. If that difference was not seriously available on the facts of this case where there is no direct evidence at all about discussion of how to use a gun before the offence was committed, then it would not have been available in Gillard.

KIRBY J: Would you just remind me, is the theory – I mean, one could understand with Mr Blatch because Mr Davies had threatened to dob him in, he being an escaped prisoner.

MR WALKER: That may be a theory, but that certainly was something that was before the jury to consider, that notion.

KIRBY J: Yes, but what is the alternative theory of going to Mr Davies’ property? Was it to intimidate him to get the money, the share of the - - -

MR WALKER: It was to pursue discussions, to put them euphemistically, about a commercial enterprise, to put that euphemistically. But this was an openly pre-arranged meeting. He had called and come back. As defence counsel, with respect, powerfully put to the jury and the judge captured in the passage I took your Honours to, what kind of murder was this where there was an arrangement made with the victim’s wife to call back, it was known that there was an ongoing grievance involving matters of obvious acuteness between the parties. In our submission - - -

KIRBY J: But that is a bit against you, is it not? I mean, on the facts it is a very powerful case that if you go out with a man who is an escaped prisoner who has been threatened with being dobbed in to the police and you know that that man has a gun and that you honk the horn and your voice is heard and is known to the Davies and causes the person to come out - - -

MR WALKER: Well, that is the Crown case, your Honour, but the point is that when a Crown case of that kind is being put, it is all the more important that the defence has fairly put the alternatives which are matters of choice. Now, I have said what I wanted to say about the section 8, 302(1)(b) conviction and, in our submission, the reasons for dismissing the section 7 involvement cases were also powerful for the reasons I have put in relation to section 8.

Can I move in the time left to me to the question of manslaughter. Your Honours find what are called the non-direction or the anti-direction at the foot of 56 to the top of 57 and, with respect, not happily expressed in terms of concentrating minds upon those things which as a matter of general principle Gillard required to be done. He said:

Now, in relation to the issue of whether there was a plan and whether what happened was a likely consequence of carrying out of the plan –

so that is 302(1)(b) –

if you found the shooter guilty of murder, it may be possible technically for you to find manslaughter open in respect of the person who did not do the shooting.

But then an important word:

But realistically in this case –

Then the judge gives an opinion about a matter which is for the jury, and the jury has not been given the choice, in our submission, in any realistic way. The Court of Appeal, with respect, appropriately considered the appellant’s unrepresented advancement of this point as if there had not been a proper manslaughter direction. Their Honours were correct to do so. When looking at this, in our submission, it is impossible to understand how a jury could have been properly guided as required by Gillard by the lines one finds at 57, lines 10 and following:

you may think that it would not be realistic to find that an unlawful killing without the necessary intent was a likely consequence but a killing with the intent was not.

Now, that expression “without the necessary intent” and “with the intent” is never explained anywhere and is not picked up obviously by the particular provisions of the Code in paragraph 302(1)(b). It is as if common law and Code matters have passed in the night. It produces a completely misleading direction, particularly as realistically many people may be expected to contemplate a consequence which might involve carelessness but not murderousness. That is not a difficult proposition; so that the repetition of the word “technically” is one that, in our submission, calls for the intervention of this Court.

GUMMOW J: Yes, Mr Meredith.

MR MEREDITH: I am sorry, your Honour, just dealing with that last point - - -

GUMMOW J: An extension of time is needed I think. Is that opposed?

MR MEREDITH: No, your Honour.

GUMMOW J: Yes. Well, that is granted.

MR MEREDITH: Just dealing with the last point first, as the previous counsel for the respondent pointed out to your Honours - - -

KIRBY J: Well, he was unrepresented in the Court of Appeal, I think.

MR MEREDITH: Yes, I was going to refer your Honour to section 620, that the trial judge in Queensland is entitled to make comments on the evidence.

KIRBY J: I see.

MR MEREDITH: He did properly leave manslaughter to the jury and he made it clear at the beginning - - -

KIRBY J: But is an effective withdrawal, a manslaughter, is it not, effectively?

MR MEREDITH: But one that is clearly in the context of him saying, “There are matters for me to decide and there are matters for you to decide and this is a matter for you to decide but you might think this”. Now, that is a legitimate - - -

KIRBY J: It goes beyond that unfortunately. It is:

But realistically in this case –

and then he goes on to say –

So realistically you may think that while manslaughter is technically open the verdict of manslaughter is not really open –

Now, an American lawyer would be horrified at this intrusion by the judge into the facts and - - -

MR MEREDITH: But they are obliged not to speak about it at all realistically.

KIRBY J: Well, our judges can speak about it but that really is more than a wink and a nod; that is telling them, “You don’t have to worry about that”, and you and I might form that view of the facts and judges might form that view of the facts, but the facts are the jury’s province. It is just fundamental.

MR MEREDITH: Yes, but he gave them the reason why they might, and then that the scope for a shooting without intent was very slim. Now, if they took the view that it was there, then they were not foreclosed from coming to a conclusion of manslaughter by what he said because he made it very clear - - -

KIRBY J: They would have to be a jury as strong as in Hampden’s Case to come down with a verdict for the accused on that instruction.

MR MEREDITH: With respect, that is, in my submission, not so because he is isolating the area where there might be an area for them to consider and if they do not, as they were told by him, as they can, not agree with his opinion – and he made it clear it was an opinion – then they could decide elsewhere – otherwise.

KIRBY J: Do you say that that is a correct direction?

MR MEREDITH: Yes, it is a correct direction in terms of the law and it is - - -

KIRBY J: But why was it not open to the jury to take a view – you and I might not take it – but that the applicant had gone out there with Mr Blatch believing that there was to be a conversation concerning a part in the deal and he was there as a back-up and then the gun was fired. After all, it was fired very quickly and it was from behind and the flash was seen from behind, so the question is, was that part of the common purpose of going out there or was it arguably something that arose out of Mr Blatch’s rage at seeing Mr Davies who was the man who was threatening to dob him in?

MR MEREDITH: But this is not the context of him going there and discussing with him about going to the police. This was a matter that he knew was particularly of interest to Blatch and he shot at a point when Davies has indicated he is going to the police and the conversation is finished; there is no further point in discussing this matter, and turns to go, and it was a close – the jury must have come to the conclusion, and clear on the facts, that Blatch was very close by where the flash of the gun was seen to come from. So, knowing that, a shot fired in those circumstances, the only reasonable inference, I would suggest, was that it was a killing with intent rather than just a shooting, just a shooting to warn off, because it is - - -

KIRBY J: But why not let the jury pass on this? I mean, that is our system.

MR MEREDITH: And that is what his Honour did.

KIRBY J: He did not.

MR MEREDITH: Well, if he leaves it open and tells - - -

KIRBY J: “Technically”, “you may think”.

MR MEREDITH: Well, entitled to say those things.

KIRBY J: I just do not understand why his Honour took it away from the jury, which is effectively what he did. I just do not understand it.

MR MEREDITH: Well, with respect, he is entitled to make comments and he made the - - -

KIRBY J: This is more than a comment.

MR MEREDITH: It is certainly couched in the terms that he is making it a comment.

GUMMOW J: The problem, Mr Meredith, is that in ordinary parlance in Australia when people use the word “technical” they mean in the letter but not the spirit and not really - - -

MR MEREDITH: Yes, and trials are conducted on the - - -

GUMMOW J: Just technical.

MR MEREDITH: But trials are conducted on the evidence before them and it was not the contention at any stage - - -

GUMMOW J: The use of the adverb “technically”, I think it is put against you, telegraphs something to an ordinary collection of people.

MR MEREDITH: But importantly counsel for Carmody did not object. Experienced counsel for Carmody did not object to that. This was the position that they were taking. They were not saying that you should take manslaughter away in terms of it is not open, but rather their case was it was murder or nothing.

KIRBY J: This is about the seventh case I have sat in where the trial has been conducted on that basis and then when murder comes in, they come up to courts of criminal appeal to try and get a second bite of the cherry.

MR MEREDITH: Yes, that is what it is.

KIRBY J: I think Mr Walker has done that more than twice.

MR MEREDITH: Well, with respect, he should do it unsuccessfully if it is run - and this was experienced counsel. It was not as though he was unrepresented at the trial, and counsel did not ask for that. So he did not feel disadvantaged by that. He felt that it was left open to the jury but really that the emphasis was on the fact that there was no plan, that this was something entirely Blatch’s, and seen from the way his Honour summed up the defence case, that was what they were putting, that it was Blatch’s plan to do this, quite independently of what Carmody felt.

GUMMOW J: Now, on the question of unlawful purpose, you in effect encapsulate what you say in paragraph 11 on page 95?

MR MEREDITH: Yes, my numbering is slightly different. Yes, it is that paragraph, yes, your Honour. Now, the point that the Court of Appeal was making was that it was too narrow from the trial judge and it disadvantaged the Crown, that there were more bases which they set out, and I will come back to section 7, but if in the circumstances that the jury would have to have been satisfied of and was clearly open on the evidence that Carmody went there with Blatch knowing that Blatch was armed and that Blatch had a particular concern about Davies’ intention to tell the police, then the unlawful purpose would have been either to threaten him at a particular point to discourage him from going ahead and telling the police, or acting as Blatch saw fit, and clearly in the circumstances here Davies had made it very clear that there was no point talking further.

So there is either, “We will produce the gun to threaten him to change his mind”, which is unlawful purpose, or it will be used when it becomes clear that that is not going to happen, that Davies is not.....and that is what does happen. He says, “I’m going inside”, or words to that effect, after saying he is going to the following day tell the police “and we’ll all end up in gaol and see how that ends up. I’m going inside”, and then he is shot. So the unlawful purpose is either to threaten or to act as the shooter saw fit.

Now, with respect to the Court of Appeal, I would suggest that the section 7 case was dismissed incorrectly by them, that the plan to kill was clearly open on the evidence, to go there and “I will talk to him and if he does not change his mind I will kill him”. The jury would have been quite open to come to the conclusion that that was the case.

The applicants say that since that was left open that it is fatally flawed, the trial is fatally flawed because one of the bases that was put was not really open. Well, with respect, I would suggest that is not true on the evidence, but even conceding that point, if that were not the case then the jury would certainly be – if they had come to that conclusion wrongly, by the reasoning of the Court of Appeal, they would certainly have come to the conclusion that there was an unlawful purpose, that it would be a section 8 case. The section 7 case is much narrower than the section 8 case, so if they were satisfied of that, they would have been satisfied of the section 8 case. There is nothing outside of the section 8 case that is encompassed in what was being put as a section 7 case.

My friend makes some criticism of the use of the word “remotely”. It is in the context of – his Honour says there is – the section 7 case, the direct arrangement as opposed to more remotely when you have a plan, that you are not planning to kill but there is an unlawful purpose and the killing is a consequence of that unlawful purpose. So, with respect, I do not suggest that anything turns on the use of the word “remotely”. I think I have covered all the points within the time, unless your Honours have any questions for me.

GUMMOW J: Yes, thank you, Mr Meredith. Yes, Mr Walker.

MR WALKER: May it please your Honours. The answer adopted from his paragraph 11 at application book 95 to the matter raised by Justice Gummow of course relates to the material which one finds set out in the quoted passage of the summing-up at application book 70, line 23, and then dealt with in paragraph [16] on application book page 71. That was the excessively favourable narrowness which was identified by the Court of Appeal; the difference between the unlawful purpose of taking the gun to use as back-up against violence on the one hand, and on the other hand using it as the shooter saw fit. Now, that is a real difference. That was being left for the jury. It is not possible to say that the evidence did not support that being left to the jury.

KIRBY J: Well, I take the force of that, but there comes a point where, at least with experienced counsel, if the matter is not reserved and the matter goes to trial on a chosen basis for good tactical reasons which I can understand and where, as in this case, the evidence is pretty powerful against you – very powerful against your client going out with an escaped criminal with a loaded gun to meet a person to summon him forth in the dark of night and then within seconds of the conversation concluded the flash goes and the man is dead.

MR WALKER: Your Honour, it is the - - -

KIRBY J: Now, it is not a case that screams out for a miscarriage of justice, Mr Walker.

MR WALKER: Your Honour, it is the very nature of a Crown case of that kind against a non-shooter for a shooting death of murder particularly as opposed to manslaughter - but of unlawful homicide - you can put it together, which rendered it important that the jury be left with the choices which the evidence threw up; 576 requires that.

KIRBY J: Well, I think there is a lot of force in that, but ultimately we have to conserve special leaves to cases of this kind where there is a miscarriage of justice.

MR WALKER: But your Honours ought not to do that in a way that you would not apply for the proviso itself, and Gilbert in this Court says that this is certainly not a proviso point. Proviso cannot be available where manslaughter has not been left properly and, in our submission, the matter in relation to an excessively narrow and “favourable to the accused” summing- up is not a matter where one can apply any proviso reasoning. It is not for the judge not to put a point, but here the judge did put that point. We do not complain about what he said at 70, line 35. We complain about the way the Court of Appeal dealt with it; namely, they said, well, he did not have to do that – should not have done that. Of course he should have done it. He did it because he should have done it because that is what the defence case was. A duty under section 620 is to put the defence case fairly.

KIRBY J: You are strong on this here as you have been before.

GUMMOW J: That is right.

KIRBY J: I think this is the third time you have come here in a matter on manslaughter where it was not put at trial because the client went to trial hoping murder or nothing, hoping they would win on that, and then you come up here and you get special leave to argue the matter again.

MR WALKER: Your Honour is recalling Stevens, I suspect, and with respect, I did not put manslaughter there; I put accident.

GUMMOW J: Anyhow, you are not on trial, Mr Walker.

MR WALKER: May it please the Court.

GUMMOW J: We will take a short adjournment.

AT 12.31 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.35 PM:

GUMMOW J: In this appeal we are ultimately of the view that the applicant does not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.

The matter of some concern is the judge’s direction on manslaughter. That direction might have been construed as telling the jury that they need not consider the “technical” verdict of manslaughter. No objection to the terms of the charge on that ground was reserved by experienced counsel appearing at the trial. The applicant was then content to present the case as one of murder or nothing.

Although that is not necessarily fatal, it does require the Court to evaluate carefully whether a miscarriage of justice has occurred in the circumstances of the case. We are not convinced that a miscarriage of justice occurred suggesting the need for this Court’s intervention and special leave is refused.

AT 12.37 PM THE MATTER WAS CONCLUDED