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Rae v The Queen [2009] HCATrans 243 (2 October 2009)

Last Updated: 6 October 2009

[2009] HCATrans 243


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Brisbane No B46 of 2008


B e t w e e n -


RODNEY SHANE RAE


Applicant


and


THE QUEEN


Respondent


Application for special leave to appeal


FRENCH CJ
KIEFEL J


TRANSCRIPT OF PROCEEDINGS


FROM CANBERRA BY VIDEO LINK TO BRISBANE


ON FRIDAY, 2 OCTOBER 2009, AT 10.47 AM


Copyright in the High Court of Australia



MR P.E. SMITH: May it please the Court, I appear with my learned friend, MR L.M. DOLLAR, for the applicant. (instructed by Fisher Dore Lawyers)


MR M.J. COPLEY, SC: May it please the Court, I appear for the respondent Crown. (instructed by Director of Public Prosecutions (Qld))


FRENCH CJ: Yes, Mr Smith.


MR SMITH: Your Honours, it is necessary for Mr Rae to seek leave to extend time in this matter. Mr Rae has filed an affidavit which appears at appeal book 65 to 67. Essentially, Mr Rae was represented by the Legal Aid Office at the Court of Appeal stage. It took quite some time for his application for aid to be refused to bring the matter to the High Court. There are obviously enough limited resources to a person in prison doing a life sentence and it took time for him to engage - - -


FRENCH CJ: Is the application for an extension opposed?


MR COPLEY: Yes, it is, your Honour. It is opposed on two bases: first of all, that there is no adequate or proper explanation for the delay, hence the refusal of legal aid on 24 July 2007, and secondly it is opposed because the matter is devoid of merit.


FRENCH CJ: Well, what we will do is hear you on the merits as well, Mr Smith.


MR SMITH: Thank you, your Honours. Your Honours, if I could turn to the merits of the application, Mr Rae’s point is that this Court should consider to what extent do facts need to be proved before a trial judge would leave provocation under section 304 of the Criminal Code to the jury to consider. The submission from Mr Rae is that the learned President in dissent adopted the correct approach in this particular matter, and in particular Mr Rae relies upon that which is set out in her Honour’s judgment at page 51 of the appeal book at about line 38 which commences with the words, “On the other hand,” and your Honours will see that her Honour summarised the background between the parties and noted ultimately at line 59 that:


Despite the significant difficulties for the defence on the evidence, the judge was wrong to conclude that a reasonable jury would inevitably be satisfied beyond reasonable doubt that the killing was unprovoked in the circumstances. This was entirely a matter for the jury and it should have been left for their consideration.


Your Honours, the majority in the case took a different view. Justice Fryberg ultimately concluded that there was no evidence on which a jury might infer provocation, and can I develop as to how his Honour came to that conclusion. At appeal book 54, line 31, his Honour referred to the necessity as to whether there was evidence. Then his Honour referred to the well-known statement in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at line 41. Importantly, he noted that frequently juries are told that:


inferences must be rational inferences based on the evidence; guesswork, speculation or intuition are not permitted.


But your Honour, that decision of Barca was in the context of a direction given on a Crown case in a circumstantial matter. It is a different matter for the defence. In my submission, where a defence is raised, a jury is entitled to engage in some degree of speculation provided it is reasonable. For example, if there is a reasonable hypothesis open on the evidence, the jury can determine that issue. So what I am submitting to the Court really is that the application of that Barca test in considering whether a defence is raised, or whether there is evidence of it, has led the majority into error. So where his Honour at page 56, line 31, found:


There was no evidence upon which the jury could rationally have concluded that an ordinary person might have reacted the same way. Speculation or bare possibility were not enough.


Your Honours, Mr Rae submits that there was material, as the President found capable of raising provocation. For example, the deceased and the applicant had shared a good relationship, they had been drinking the afternoon before at the Golden Spurs Hotel at Proston which is near where the killing took place, they had been gambling together and drinking on the Saturday morning.


Immediately before the events which involved the assaults, the accused, the applicant asked the deceased to light a lantern. He, that is the deceased, said something unknown because Ms Varga was not in a position to hear that, and the applicant said, “Don’t disrespect me”, before the assault occurred. There was no evidence that the deceased denied that or made any response to that statement, “Don’t disrespect me”. So the circumstances were such that the inference could be drawn in the applicant’s submission that whatever the words were spoken, they must have been provocative to lead to that conduct on the part of the applicant.


KIEFEL J: This involves reasoning from his reaction, which is really the question, the reasonableness of his reaction to the question. You cannot reason back from it, can you? The speculation that Justice Fryberg is talking about is as to the statement itself, what was said to found the reaction. We do not know what was said.


MR SMITH: I agree with that and, your Honour, I think we have conceded and the learned President did find that there were some difficulties for the applicant. But the cases which are referred to in the outline, the High Court decisions, are that if there is some material from which an inference can be drawn, then it is not a matter for the trial judge to take it away from the jury. It is for the jury to consider the matter on the whole of the evidence.


I really, on my client’s behalf, join issue with what his Honour said about that because the jury in the applicant’s submission would be entitled to come to the conclusion that there must have been a provocative statement said at the time which led to the response by the accused on the deceased. This was important in this case as well because there were two bases on which murder was left to the jury. The first basis was that he, with the intent, incinerated the deceased.


But there was a real issue of the applicant honestly and reasonably believing that after the first blow or blows the deceased was dead and the incineration was done on the body, which as it turned out was not correct but that second route to murder was left by the trial judge in the summing-up. So provocation in terms of proportionality, which your Honour raised a moment ago, was a live issue on that second route. In fact, Justice Fryberg accepted that in his decision, your Honours. At page 56 at line 45, his Honour referred to these two bases of the route to murder and noted:


The conduct and circumstances said to be sufficient to raise provocation are identical in respect of each basis upon which the Crown case was put to the jury. If there was sufficient material in the evidence to raise the possibility that the deceased said something which could have caused an ordinary person to lose self-control and attack him with intent to kill or do grievous bodily harm, that possibility existed independently of the method of attack. It would make no difference whether the appellant’s instant response was to hurl flammable fluid over the deceased and set him alight or to punch, kick and jump on him with murderous intent. There would still have been sufficient material in the evidence to raise the element of “provocation” within the meaning of s 304.


So the issue, your Honours, does come back to this finding by the majority there was no evidence. The applicant says that the President correctly found there was evidence from which an inference could be drawn. The High Court decision such as Stingel [1990] HCA 61; (1990) 171 CLR 312 and Masciantonio

v The Queen [1995] HCA 67; (1995) 183 CLR 58 apply and it was for the jury to make the necessary assessment of the facts. The jury is entitled to refuse to accept the cases of the parties and to work out for themselves a view of the case that did not exactly represent what either party said.


In conclusion, your Honours, in Stingel, for example, there was evidence that the deceased swore at – and I will not repeat the words but they are in the decision – swore at the applicant in that case and he then stabbed the deceased. It would be unfair on my clients that a witness through misfortune just happens not to hear the words is then deprived of this defence of provocation. So they are the submissions for the applicant, your Honour.


FRENCH CJ: Thank you, Mr Smith. We will not need to trouble you, Mr Copley.


The applicant was convicted of murder in the Supreme Court of Queensland in November 2005. His appeal against conviction to the Court of Appeal was dismissed by majority. He has applied for special leave to appeal to this Court and an extension of time for that purpose on the ground that the trial judge erred in failing to leave the issue of provocation to the jury and that the majority in the Court of Appeal erred in failing to allow the appeal on that ground.


The evidence relied upon at trial to support the defence of provocation under section 304 of the Criminal Code was that the applicant and the deceased got out of a motor vehicle, the applicant said something to the deceased about lighting a kerosene lamp, the deceased made some comment to the applicant who then said to the deceased, “Don’t disrespect me”. The applicant then grabbed him by the throat, punched him, knocked him unconscious and continued to assault him, following which he doused him with petrol and set fire to him. That evidence was incapable of supporting the inference that the conduct of the deceased would have caused an ordinary person to lose self-control and act in such a way as the applicant acted.


Absent any evidentiary basis for the application of section 304, the trial judge, in our opinion, was correct in refusing to leave provocation to the jury. Absent any merit in the case, the extension of time is refused. The grant of special leave would have been refused in any event.


AT 11.00 AM THE MATTER WAS CONCLUDED



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