Roberts v State of Western Australia [2008] HCATrans 297 (8 August 2008)

Last Updated: 13 August 2008

[2008] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P25 of 2007

B e t w e e n -

FRANCIS GERALD ROBERTS

Applicant

and

STATE OF WESTERN AUSTRALIA

Respondent

GUMMOW J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 8 AUGUST 2008, AT 12.22 PM

Copyright in the High Court of Australia

MR G.R. DONALDSON, SC: If your Honours please, I appear with MS A.N. BLACKBURN for the applicant. (instructed by D.G. Price & Co)

MR D. DEMPSTER: If your Honours please, I appear for the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

GUMMOW J: Yes, Mr Donaldson.

MR DONALDSON: Your Honours, the special leave point in this matter is that identified by Justice McLure in her Honour’s dissenting judgment, and the relevant aspect of her Honour’s judgment, your Honours, is paragraphs 238 to 243 which commence - - -

GUMMOW J: Yes, but that has to read, does it not, with what Justice Wheeler then responded at page 54?

MR DONALDSON: Well, it does, your Honour, and also it needs to be read having regard to what Justice Roberts-Smith had to say commencing at paragraph 142 at page 94 of the application book, which is where his Honour Justice Roberts-Smith responds to Justice McLure.

Your Honours, can I take your Honours to the direction that was made by the trial judge, and this relevantly commences at page 18 of the application book, and your Honours will see at paragraph 18 that the Crown’s case that was put in relation to the accused person having caused the death of Mr Coates, and that is in terms of section 270 of the Criminal Code, was put in this way, that there was no forensic or other evidence establishing how Mr Coates had died. The Crown’s case was that this could be inferred and that the accused caused the death of Coates from three facts which were admitted by the accused: first, that the accused was with Coates when he died; second, that the accused disposed of his body; and third, that the accused concealed that he had disposed of the body.

Now, those facts, those three facts, were advanced by the Crown, your Honours, to give rise to the inference that the accused had caused the death of Mr Coates, and separately from that, to give rise to an inference that that death had been by violence. Again, your Honours, it is those same three facts that the Crown relied upon for that, particularly the third, that is, he concealed the body, or concealed that he had disposed of the body, so as to avoid anybody finding out, as it were, that the victim had been killed by violence. Now, those matters, your Honour, are set out in the first two paragraphs at page 20 of the application book.

Then, your Honours, and it is really the third paragraph on page 20, what his Honour then goes on to say is in relation to those same three facts – and your Honours will see this at line 25:

it would be open to you to draw the inference, if you are so satisfied beyond reasonable doubt, that he caused the death and further, he had caused it with an intent to kill or do grievous bodily harm.

So, again, those same three facts are there identified by his Honour as the facts which could be relied upon by the jury to infer intent to either kill or do grievous bodily harm.

As Justice McLure, your Honours, observes at paragraph 240 of her Honour’s judgment, the failing of the trial judge in this direction is at this point not stating that even if the jury were satisfied beyond reasonable doubt that those three facts gave rise to an inference that the accused caused the death and that there was violence involved, that those three facts were also entirely consistent with a verdict of manslaughter.

It is the failure, your Honour, of his Honour to make that clear in the context where his Honour had referred to those three facts as being capable of giving rise to intent to kill or do grievous bodily harm, that is the error in the direction, and which had the effect, as Justice McLure has identified, of in effect taking manslaughter away from the jury.

Your Honour, that failure is exacerbated by the direction that his Honour gave in respect of murder and wilful murder and manslaughter commencing at page 21 of the application book. Your Honours will see at the top of that that his Honour refers to the three categories, or at the time three categories, it changed last week, but the then three categories of unlawful death under the Code.

Then what his Honour did is started off, as his Honour described it, at the bottom with manslaughter and gives to the jury an actual scenario or what his Honour referred to as a “classic example of manslaughter” being a motor vehicle death, which of course, was completely divorced from the facts and circumstances of this case. His Honour then goes on to give a straightforward direction as to what constituted wilful murder and then murder.

But, your Honours, because of the immediacy of the prior direction, that is, that the facts which the jury could rely upon for concluding that the accused had caused the death and that the death had been caused by violence, and that those same facts could give rise to an inference of an intent to kill or to do grievous bodily harm, when the jury then has explained to them, well, what manslaughter is is something like a motor
vehicle death, it could only, in our submission, have confused the jury as to what the elements of manslaughter were.

KIEFEL J: But as Justice Wheeler points out, the example emphasised the absence of intention in manslaughter. Is that not right?

MR DONALDSON: Your Honours, it may be that that was the purpose for the example that was given, and as Justice Wheeler says – well, his Honour does not say anything more than that it was an example but, your Honour, in a matter such as this, where the entire Crown case – every aspect of the Crown case – was by inference, what his Honour - - -

KIEFEL J: But it is not just the purpose of the example. The trial judge says the word “intent” in the example at least four times. So it is brought home to the jury quite strongly by – it might not have been the best example, but it at least brings home very strongly to the jury the lack of intention, and that is the nub of it, is it not?

MR DONALDSON: Your Honour, what would have been far more clear – if I can put it that way – is if his Honour had started off with a direction as to what wilful murder was, which required evidence of an intent to kill, then what murder was, which in this case required an inference as to an intent to do grievous bodily harm, and then said, if you are not satisfied beyond reasonable doubt of either of those intents, but you conclude that he has caused the death, and that the death was caused by means of violence, then manslaughter is the only verdict which is open to you.

The page before in the direction, what his Honour has done is he has conflated the three factors which give rise to the inference of death with the intent to cause grievous bodily harm and murder, and so when the jury comes to this example, your Honours, in our submission, as Justice McLure determined in the Court of Appeal, the jury would have been confused as to what the elements of manslaughter were and therefore it was not, in effect, left to them. They are our submissions, your Honours.

GUMMOW J: Thank you, Mr Donaldson. We will take a short adjournment.

AT 12.31 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.37 PM:

GUMMOW J: We do not need to call on you, Mr Dempster.

In his written submissions, the applicant submitted that for the purposes of the Criminal Code (WA) manslaughter should be understood by reference to concepts of unlawful and dangerous act developed in the common law of homicide. There is no footing in the Code for taking that step.

In oral submissions, emphasis was given to alleged deficiencies in the trial judge’s instruction to the jury. We are not persuaded that it is arguable that there has been a miscarriage of justice.

Special leave is refused.

We adjourn to reconstitute.

AT 12.38 PM THE MATTER WAS CONCLUDED