Hayes v The Queen [2009] HCATrans 156 (25 June 2009)

Last Updated: 2 July 2009

[2009] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B7 of 2009

B e t w e e n -

ERROL GRAHAM HAYES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 12.01 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D Weller & Associates)

MR M.J. COPLEY, SC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Your Honours, there is also a procedural matter in this application which is out of time. I am seeking an extension of time, but I understand this is not opposed.

KIEFEL J: Is that correct?

MR COPLEY: No, it is not opposed.

KIEFEL J: Yes, the time is extended as requested.

MR WENDLER: Your Honours, this application raises matters of importance to the law of criminal trial procedure. There are two special leave components in this application. The first I will describe as the indictment point and the second as the inadequacy of directions point precipitating a miscarriage of justice. In broad terms, the prosecution case alleged one count of arson and three counts of murder. The prosecution case went to the jury pursuant to section 302(1)(a) and (b) of the Criminal Code. There were two alternative bases for the criminal responsibility for murder but it was left to the jury in relation to the three counts of murder.

The issue that emerges, having regard to the fact that arson was identified and pleaded on the indictment, the issue concerning criminal trial procedure is whether the unlawful purpose identified in section 302(1)(b) is confined to one purpose.

KIEFEL J: To the arson?

MR WENDLER: To the arson, yes. This was a felony murder. There were two bases, felony murder was one basis. This Court has held previously in Hughes and Stuart that the act causing the death of the deceased cannot be the same act, as it were, which constitutes the dangerous and the unlawful purpose. So the act causing death cannot at once constitute the dangerous act and the unlawful purpose. So in felony murder effectively there are two crimes that occur simultaneously. The issue in this case was the legality of the trial judge’s directions to the jury that they could consider more than one felony in respect to the case of murder left on the basis of felony murder.

KIEFEL J: But did not Stuart, at least impliedly, acknowledge that there may be more than one purpose?

MR WENDLER: With respect, I do not think it did. It appeared to focus effectively on the prosecution of a single unlawful purpose. The single unlawful purpose in this case was arson. However, the judge left the unlawful purpose component of the felony murder situation on the basis that there were a number of unlawful purposes that the jury could consider, even though they were not, in effect, pleaded on the indictment.

KIEFEL J: In Stuart [1974] HCA 54; 134 CLR 426 at page 440 Justice Gibbs says:

In truth, the act was done in the prosecution of one unlawful purpose (arson) which itself formed part of a wider purpose (extortion).

MR WENDLER: There were a number of felonies that were relied on, but my point is whether section 302(1)(b) confines by its language one unlawful purpose in the absence of any other unlawful purpose being pleaded on the indictment.

KIEFEL J: Which assumes that the purpose has to appear from the face of the indictment.

MR WENDLER: Well, the bottom line question is this. What was the Director of Public Prosecutions of Queensland seeking to punish the applicant for? He was seeking to punish the applicant for the setting of a fire and the unlawful killing of three people. That is what the Director was seeking to punish the applicant for. So circumstances of aggravation, in my respectful submission, need be pleaded on the indictment and these extra circumstances of aggravation tied up in the felony murder which were identified by the judge as being - - -

KIEFEL J: You are not suggesting a procedural fairness point arising here, are you, because, as I understand it, it is contended that the prosecutor made it plain that the three or four purposes were all relied upon?

MR WENDLER: Well, he did make it plain. He opened on it and there was no issue taken by defence counsel in relation to it. But the question is whether the legality of that procedure – that is the issue, the legality of that procedure and, in my respectful submission, the unlawful purpose identified in 302(1)(b) is confined to a single unlawful purpose, the felony being in this case arson.

BELL J: What do you draw that from? It is not apparent from the wording of the provision that there should be such a limitation?

MR WENDLER: If one goes to 302(1)(b), the language is:

if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life - - -

BELL J: If I understand your argument, Mr Wendler, it was necessary for the prosecution to fix on one unlawful act. So, say it fixed on an attempt to set fire to the dwelling, if the jury was satisfied the dwelling had caught fire, the prosecution would fail. Is that the contention?

MR WENDLER: Well, take the arson, arson being defined as the setting of fire to a number of things identified in the Code. The setting of fire, that act is the same act, as it were, which was the act which was likely to endanger life. It was simultaneously the same act required for arson as it was for the causation in relation to the likeliness to endanger human life. Hughes says that cannot be done.

BELL J: Can you take us to the passage in Hughes?

KIEFEL J: That is at [1951] HCA 34; 84 CLR 170.

MR WENDLER: Yes. I will pick it up at page 175 at about point 2 where it begins:

In our opinion the evidence did not warrant a conviction for murder within s 302(2). If the case did not come within s 302(1), it was not a case of murder. Section 302(2) ought not to have been mentioned at all. The importance of this lies in the fact that s 302(1) requires a specific intent, whereas the nature of the act done and the purpose in the prosecution of which it is done, are the critical things for the purpose of s 302(2).

The controversy in Hughes was whether the appellant there had one or more purposes in relation to the serious assault that he inflicted upon the deceased and the Court effectively held that leaving 302(2) felony murder to the jury was not appropriate in that case because there was only ever one single purpose and the single purpose was to assault. It was not to do anything beyond that.

At 171 of the report, it is recorded that in respect of the argument concerning the legal nature of 302(2), namely, the act which causes death must be something other than the act which constitutes an unlawful purpose, Justice Fullagar is reported as observing as follows:

An example would be an assault causing death, committed in the prosecution of a further unlawful purpose, such as rape.

So the act which causes death must be something other than the act which constitutes the unlawful purpose. The act which constituted the unlawful purpose in this case was the setting of the fine. It was the same act which, by virtue of the process of causation, the same dangerous act that led to the death of the deceased. There was no need to have arson effectively on the indictment in this case. In fact, there was no need to go to the jury in relation to 302(2). It would have been enough to proceed just on the basis of malicious murder outright.

One of the reasons in Hughes why the appeal was allowed was because of the erroneous leaving as an alternative basis for the jury’s consideration murder under 302(2). So there is a real issue concerning criminal trial procedure in relation to the application of 302(1)(b) in the circumstances of this case where the trial judge, in effect, identified a number of unlawful purposes which were not pleaded and identified on the indictment. This may well have confused the jury in relation to the issue of causation concerning - - -

BELL J: But that is not your point, is it, because, as I understood it, there was no complaint made?

MR WENDLER: Well, there was no complaint made about it but the – it was a ground of appeal before the Court of Appeal in relation to the - - -

BELL J: I am talking of the conduct of the trial. No particulars were sought at the indictment.

MR WENDLER: No, there were not.

BELL J: The Crown opened in precisely the way that the judge left the matter to the jury, so that questions of whether or not the jury were confused by the procedure do not seemed to be really your strongest point, Mr Wendler.

MR WENDLER: It is not the point that I rely on. What I rely on is really a fundamental failure of a criminal trial procedure going to the root of the trial, in particular, the judge directing the jury on alternative unlawful purposes when section 302(1)(b) on this construction is really confined to one unlawful purpose.

BELL J: I am having difficulty seeing how you draw that from the provisions.

MR WENDLER: Well, his Honour Justice Keane resolved it by effectively employing the Acts Interpretation Act and holding that the word “purpose” should also be read in the plural. We take issue with that because of the opening words of 302(1) which is expressed in the terms of except as otherwise provided. Section 302 is a complete statement on criminal responsibility for murder in the Code, complete statement on the alternative ways in which criminal responsibility for murder is attached.

So to have the applicant’s criminal responsibility for felony murder on the basis that unlawful purpose can be defined as involving a number of a number of felonies not pleaded or identified on the indictment, in my respectful submission, is a fundamental failure of criminal trial procedure. The issue at 302(1)(b) should never have been agitated at all in the trial. This was a problem in Hughes and the reason why the High Court in the end substituted, of course, manslaughter but allowed the appeal because of the erroneous introduction of 302(2) as it was then, but it is 302(1)(b) now.

The second issue which, in my respectful submission, is of importance to this application and which, in my respectful submission, has created a miscarriage of justice - - -

BELL J: Just before you go to that, can I just understand, are the provisions of section 302 as they were at the time Hughes was decided?

MR WENDLER: Yes, but for the change of numbers, but otherwise the language is identical.

BELL J: Yes. It is a different point with which the Court was concerned there, was it not?

MR WENDLER: It was different in the sense that the act causing the death of the deceased could not be the same act which was the act in prosecution of the unlawful purpose. But from that principle I, in effect, extract a further principle that the unlawful purpose must be a singular felony. That is why I rely on Hughes.

KIEFEL J: I think you were moving to your points about the witnesses.

MR WENDLER: Yes. The second matter concerns the directions given by the trial judge in relation to three principal witnesses in the Crown case. I have identified those witnesses as Peters, Davison and Scott. A the scrutiny of the summing-up, which is reproduced in the application book in its entirety, demonstrates that the trial judge really did no more than identify the fact that these witnesses had credibility problems but never instructed the jury as to why the evidence may be unreliable in respect of these particular witnesses.

Now, the witness Peters was described by the trial judge as “a linchpin of the Crown case”, a fairly powerful statement, a linchpin of the Crown case. In other words, the trial judge focused upon the testimony of Peters as being highly probative of the proof beyond reasonable doubt of the Crown case. Now, Peters was a person who was giving evidence whilst he was on parole. He had been given a discount in relation to other serious offences. He was an admitted long term user of amphetamines. In the circumstances of a case which was bound to generate a significant emotional impact, the death of three people including a child, it was vitally important that the judge gave appropriate assistance to the jury as to how they should handle Mr Peters’ evidence.

KIEFEL J: No directions were sought in relation to any of these witnesses?

MR WENDLER: No, there was not, your Honour, but that is not critical in a case where there is a demonstrative miscarriage of justice.

KIEFEL J: No, perhaps though the underlying reason for that, as at least pointed out by the Court of Appeal, might be and that was that if a direction had been given in relation to this witness – and I think it applies with respect to the other witnesses – that there may have been some element of unreliability, it would have been necessary to remind the jury of the other independent evidence which supported their evidence.

MR WENDLER: That may be a tactical - - -

KIEFEL J: Is that not a matter that you have to deal with directly?

MR WENDLER: Absolutely, it is a matter I have to deal with and I do not avoid it, but irrespective of the fact that there may be other evidence capable of an inference or evidence capable of supporting the reliability of his testimony, it is still vital in a case of this kind where the foundation of the Crown case rested upon three witnesses who had antecedents which would reflect on the reliability of their evidence.

The witness Davison had received an indemnity in relation to prosecution in respect of any evidence she gave in the trial which might expose her to other offences. All his Honour did in relation to her was to explain effectively what an indemnity was. It was really necessary to go further and assist the jury in relation to the potential to embolden the witness to exaggerate her evidence or to give an impression which reflected effectively the Crown case.

KIEFEL J: Did the Court of Appeal say that there was no apparent incentive for her to give false evidence?

MR WENDLER: No, I do not think, from memory, they had dealt with that aspect of it. This all goes back to effectively the - - -

KIEFEL J: Perhaps I could direct you to paragraph 80 of the judgment in the Court of Appeal:

it was not apparent that the indemnity given to Ms Davison could have acted as any sort of incentive to give or adhere to false evidence against the appellant. Any charges pending against Ms Davison were said to have been dealt with.

MR WENDLER: That does not address what exactly the trial judge told the jury. What the trial judge told the jury about her evidence was that she was an indemnified witness and that she may have a tendency to embrace her statement, but beyond that he said no more.

KIEFEL J: I see that your time is up. Can you summarise, beyond your written submissions, what you need to say about the balance of your argument?

MR WENDLER: Only this, your Honour, that the inadequacy of the directions in a case of this kind were such, in my respectful submission, as to obligate the court effectively to give full assistance to the jury in relation to how they should handle the evidence of these witnesses and particularly give the reasons why their evidence may be unreliable – not that it was unreliable, the reasons for it. That is the point.

KIEFEL J: Thank you. We do not need to trouble you, Mr Copley.

The applicant was found guilty of one count of arson and three counts of murder. He says that the trial judge misdirected the jury in relation to the possible unlawful purposes in connection with the setting of the fire. It is his contention that the prosecution was limited to one only such unlawful purpose, that of arson. The applicant was unable to provide any authority for that proposition. The prosecution made it plain that it was relying on the purposes in question and there was no unfairness to the applicant in this regard.

The Court of Appeal rejected the applicant’s other grounds, which were concerned with the need for warnings with respect to the evidence of two witnesses. It pointed out that no occasion arose for a warning because one had been given an indemnity against prosecution. The applicant’s counsel understandably did not seek a direction. If it had been given, the jury would have had to have been reminded of the other evidence which supported the account of that witness. This was also true of the evidence of the other witness, the so-called “accomplice”. His evidence did not stand alone.

No reason has been shown to doubt the decision of the Court of Appeal. Special leave is refused.

AT 12.24 PM THE MATTER WAS CONCLUDED