Fragomeli v The Queen [2008] HCATrans 295 (8 August 2008)

Last Updated: 13 August 2008

[2008] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A10 of 2008

B e t w e e n -

ANTHONY JOHN FRAGOMELI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 8 AUGUST 2008, AT 11.25 AM

Copyright in the High Court of Australia

MR N.M. VADASZ: May it please the Court, I appear for the applicant. (instructed by instructed by Vadasz Lawyers)

MR P.R. BREBNER, QC: If the Court pleases, I appear with my learned friend, MS C.M. PURCELL, for the respondent. (instructed by instructed by Director of Public Prosecutions (SA))

HAYNE J: Yes, Mr Vadasz.

MR VADASZ: I might address the question of the admission of the utterance which, roughly speaking, was by the deceased that, “I cannot turn my back on him because he will get me”. It is submitted that the learned trial judge erred in admitting the utterance and, furthermore, having admitted it, should have directed the jury accordingly and that the Court of Criminal Appeal, finding that it was both admissible and that there was no miscarriage in respect of the failure to give directions, erred in that regard.

In broad terms, it is my submission that the utterance was an assertion of fact or opinion by the maker, an assertion of fact or opinion going directly to the accused’s intention or state of mind. The accused’s intention was a critical fact in issue in the trial. It is my submission that it is hearsay and inadmissible hearsay.

HAYNE J: Could evidence be given at trial, as it was, that the accused had kicked Mr Egan?

MR VADASZ: .....quite different from the evidence of the utterance.

HAYNE J: I understand that, but if the evidence can be given that the accused had kicked Mr Egan, can evidence be given of what is said and done at about that time? Because the next question then becomes, what, if anything, is the jury to be told about what they are to make of what is said and the further question beyond that is, did not all this just disappear into the sands at trial?

MR VADASZ: My answer to the second and third questions, firstly, the jury should have been directed. It is clear from the authorities that juries should be told how to use a statement of that nature. What is also abundantly clear is that there were a significant number of different ways the jury might have used that statement. Her Honour, the trial judge, referred to one or two, Mr Brebner as prosecutor referred to one or two and her Honour Justice Vanstone in the appeal referred to possibly half a dozen different ways and his Honour Justice White I think referred to one or two different ways as well.

The essence of the answer is that the assertion went to the hub of the prosecution case. The prosecution case was that this man was not acting in self-defence but that this man was intent on stabbing or attacking the deceased and did in fact do so. That is why there needed to be a direction.

As to the third point that all this disappeared into the sands, with the greatest of respect, that is, firstly, impossible to say. Secondly, the significance and possible permutation of possible interpretations attached to the statement was such that it is not able to be said that it disappeared into the sands. If it was not important from the point of view of the prosecution, then, given its perils and dangers, it should not have been led. In my respectful submission, the risks far outweighed the probative value, if any – and I say there was none – attaching to that utterance.

As to the first point that it occurred in close proximity to the accused, the evidence as it unfolded was significantly muddy, it became muddy, and at the best, it is my submission that at the time immediately prior to the making of the statement the accused was on the other side of the motor vehicle of the deceased and that immediately following the making of the statement he was on the same side of the motor vehicle, possibly a metre and a half from the deceased.

It should also be borne in mind that there were six.....witnesses who were protagonists. Only one of those gave any evidence as to the statement. That was McGinniss. All of them gave evidence that there was a lot of yelling and shouting and it was never put to the accused that he in fact heard the statement. The fact that he kicked him there afterwards cannot be construed as an inference that he heard the statement. Her Honour in fact admitted the statement on the basis that it could be inferred by the jury that the accused heard the statement. That is unequivocal. There was simply no evidence that at that point and it was never put.

With respect to the failure to give directions, I rely upon the authority in the respondent’s list of BRS as to the risk of miscarriage in circumstances where there was a duty to give a direction and, if I might refer the Court to [1997] HCA 47; 191 CLR 275, the passages at pages 295 at about point 4, 302 at about point 8, 306 at about point 4 and, finally, 330 at about point 8. It is my submission, the risk of a miscarriage of justice caused by the failure not to give a direction.....fanciful.....significant statement capable of being construed by the jury as proof that the prosecution’s assertion that Fragomeli had ceased acting in self-defence and intended at all relevant times.....the deceased could be.....and supportable by.....

The other matter is that it is difficult to find, in my respectful submission, in the authorities a circumstance where a statement as to the state of mind of the accused going to one of the facts in issue in the critical legal question has been established by the admission of an out of court statement. I note also that her Honour the trial judge took the view that it could be allowed in under the res gestae rule and my submission is that the utterance was a separate transaction to the subsequent stabbing.....street.

It was interrupted by the kick the Court has just referred to. It was interrupted by the deceased then continuing to attack Fragomeli. It was interrupted by the two men working their way to the front of the car. It was further interrupted by a number of utterances by the deceased to the effect of “Put the knife down” and “You’re a weak so and so”, and “Fight like a man”, utterances of that kind. It was further interrupted by the attempt of one the soldiers to physically prevent the deceased from continuing to take part in the combat and then it was further interrupted by ongoing interaction by the two men over a distance over some 15 or 20 metres during which time a number of vehicles passed by and the vehicle belonging to the party in fact moved forward, interrupted by the passage of some minutes. It could not, in my respectful submission, be.....part of the res.

HAYNE J: Do you accept that other statements made by the victim of the kind you describe, “fight like a man”, et cetera, were properly admitted in evidence?

MR VADASZ: There is no argument that they should not be admitted. There was argument and objection to this particular statement and those other statements went entirely and solely to the deceased’s state of mind. This statement falls into two parts; one part goes to his state of mind, “I’m not going to.....”, but the other goes directly to the accused’s state of mind, that is, that the accused wanted to stab him in the back. It is a statement of an entirely different nature.

With respect to the three learned judges on the Court of Criminal Appeal, his Honour Justice Sulan did not touch upon this issue. Her Honour Justice Vanstone covered it at length starting at page 125 of the application book through to 128. She took the view that the statement contained an assertive component. She took the view that it was admissible but really should have been directed that it could not have been treated for the purpose of determining the appellant’s state of mind. That is......She said at 128 at point 10 that it was a blemish only. In my respectful submission, her Honour erred there.

His Honour Justice White made reference to it, but did not categorise the statement as hearsay or res. He took the view at 140, line 20, that:

the judge’s decision to allow the evidence to be adduced was correct. The evidence was relevant to the assessment of the appellant’s belief as to what was necessary for his own defence.

That was yet another one of the permutations.....and one other indication of how it could possibly have used to determine balance the appellant’s.....in issue. His Honour went on to say that:

It was open to the jury to conclude that if the appellant heard the statement, he would have realised that a retreat by him, allowing the victim the space to enter the car without risk of harm, would probably be sufficient to diffuse the situation.

What happened on the evidence, in fact, was quite contrary to that. It was not put to the accused that he heard the statement. The accused in fact aimed a blow, a kick, partially forced the deceased back into the car. The accused then took a step, a metre or two back, the deceased then came out of the car and attacked him. So it could not even be used for that purpose because the accused, in one sense, albeit it physically, allowed the deceased space and the deceased.....The second ground relates to the alternative verdict of manslaughter.

HAYNE J: Now, is this ground captured conveniently in paragraph 3.10 of your argument at page 151?

MR VADASZ: I think it is fairly fully captured, your Honour, yes.

HAYNE J: Can I direct your attention to the last sentence at paragraph 3.10, “an intentional act carries with it an objective risk of really serious harm or death” not manslaughter, but must be murder as a result of recklessness. Assume (a) presents a loaded firearm in jest in the direction of (b), (a) is startled, the weapon discharges, (b) is killed. It is an intentional act carrying with it an objective risk of really serious harm or death, is it not, and plainly it is manslaughter, not murder? Does not that suggest that the asserted test is wrong?

MR VADASZ: I agree that the test is wrong. It indicates that circumstances are far from clear cut, but a more closer example would be the situation where an accused in jest points a gun at someone’s head, a loaded gun, and pulls the trigger tending to just miss. There, there is a greater probable consequence of death or grievous bodily harm and that, in my submission, would not be an unlawful act amounting to manslaughter. But the circumstances here are, in our respectful submission, a lot stronger.

The deceased received three stab wounds, two of which were fatal. The two fatal wounds were inflicted in close proximity and it seems in quick succession. One wound on the right side of the upper chest near the breast, the other was more towards the rear, but on the same line. Both wounds were deep and both wounds were necessarily fatal. In my
submission. there is a distinction to be drawn between introducing a knife repeatedly into the area of the heart at some depth and cases that deal with unlawful and dangerous acts that mainly seem to deal with one or more blows reined upon the deceased by the accused.

KIEFEL J: That is rather to take that action out of context, is it not? That context is provided in Justice Vanstone’s judgment at paragraph 53?

MR VADASZ: The only available evidence, in my submission, was that both men were standing facing each other at the time of the blows. I agree with the other aspects, but my submission is that the evidence at the end of the day clearly indicates those were the two blows, either one of which was capable of killing or, as the court said in Wilson, the test is an objective one and if a person, a protagonist, in the course of an altercation introduces a knife into the chest area.....then, in my submission, he must have.....circumstance.....appropriate to manslaughter, especially in circumstances where the accused.....

HAYNE J: Yes. Your time has expired, Mr Vadasz. Is there anything that you consider you have to add?

MR VADASZ: Without going to the authorities referred to, Gilbert and others and Mraz as to merciful verdicts, I add that. I also add the following that a close reading of this Court’s judgments in Wilson indicates that there was always a distinction between acts likely to cause harm, acts not likely to cause serious harm. Put another way, his Honour Justice Windeyer – and I refer to page 328 in Wilson where it referred to a judgment of his Honour – talked of:

an unlawful blow, intended to hurt, although not intended to be fatal or to cause grievous bodily harm.

At the next page he talks of the intention to beat but not to kill. In my submission that point has not been finally resolved.

HAYNE J: Yes, thank you, Mr Vadasz. We will not trouble you, Mr Brebner.

Evidence was led at the applicant’s trial for murder of what the victim had said in the presence of the accused immediately before the applicant kicked the victim and a little while later stabbed him. Having regard to the course of the trial, we are not persuaded that it is arguable that the Full Court erred in concluding that admission of the evidence occasioned no miscarriage of justice. The questions about relevance and admissibility of the evidence, which the applicant seeks to raise in this Court, would not conveniently fall for consideration if leave were to be granted.

An appeal to this Court in relation to these points or the other points made in the outline of argument would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. Special leave is accordingly refused.

The Court will adjourn to establish the video link to Perth.

AT 11.51 AM THE MATTER WAS CONCLUDED