R v Butler [2012] HCATrans 196 (17 August 2012)

Last Updated: 9 September 2014

[2012] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M8 of 2012

B e t w e e n -

THE QUEEN

Applicant

and

LAWRENCE ALEXANDER BUTLER

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 11.15 AM

Copyright in the High Court of Australia

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS D. KARAMICOV, for the applicant. (instructed by Office of Public Prosecutions Victoria)

MR N. PAPAS, SC: I appear on behalf of the respondent, if it please the Court. (instructed by Doogue & O’Brien)

GUMMOW J: Yes, Mr Gyorffy.

MR GYORFFY: Your Honours, could I get straight to the point. The issue here really is the method used by the court to come to its decision. What we submit is that this is an appropriate case for the Court to look at the way in which Weissensteiner should be applied by intermediate Courts of Appeal. The issue arises very neatly because the different approach is taken by his Honour the President whose approach, we submit, was correct, and the majority, whose judgment is the judgment of Justice Ashley, who we say, in effect, have double dipped in the equation.

Now, we have been very bold, your Honours, and we are attempting to explain the application of Weissensteiner by the preparation of a concept map, if your Honours would entertain looking at it, as a means of explaining Weissensteiner. I will hand one up for each of your Honours. My learned friend has a copy.

HAYNE J: While that is on its way up to us, Mr Gyorffy, in fact the accused man had given an account of events in the record of interview, had he not?

MR GYORFFY: A denial?

HAYNE J: Yes.

MR GYORFFY: Yes.

HAYNE J: The record of interview was before the jury?

MR GYORFFY: Yes.

HAYNE J: Yes.

MR GYORFFY: The jury convicted.

HAYNE J: What he wanted to say, what he could explain had all been asked about by the police and he had given whatever explanation he wanted to, to them, had he not?

MR GYORFFY: Well, not in relation to what happened, your Honour. That is the issue. If I could take your Honours through that concept chart or map, on the left-hand side is what we say would be the normal course for a decision, a conclusion being reached in relation to murder. The fundamental question is did the accused murder the victim? So what the jury would look at is all the proven evidence in the prosecution case. The first question it had to consider here was whether the victim was dead and that was the main point that was run, your Honour, to answer your Honour’s question. That was the main point that was run by the defence, “He is not dead. I had nothing to do with his death”. That is the way the case was run.

Once the jury accepts that the person is dead, then they go to the next line, which is to decide did the accused kill the victim, did the accused intend to kill the victim or cause really serious injury - the murderous intent. Then on that same level of reasoning, a hypothesis consistent with innocence. At that point, your Honours, we go to the other side of the chart, and that is the Weissensteiner analysis. There, the jury considers whether the accused had knowledge of the facts that could contradict the prosecution case.

Now, coming back to your Honour Justice Hayne, he gave an account, but the question that the jury had to decide was whether he could actually have knowledge of the facts that would explain circumstances and the accused remained silent. If the jury then dismisses, going down the far right-hand side, that there may have been other plausible reasons for silence, then what happens is that what would otherwise be a hypothesis consistent with innocence then is no longer a rational or reasonable hypothesis.

That is how his Honour the President analysed it, we submit, correctly. But what we submit happened in relation to the majority view was when they reached that point they then went back again and looked at the questions of how the silence could be used. We have really identified those matters in paragraph 3.8 of the submissions. What we have pointed out is despite the findings that the majority made that, in fact, the evidence as a whole could support a conviction for murder they then went and looked at things that were not there and then went through the process again.

What they did then was give weight to the other side, the failure to give evidence, which it did not have. What the majority found was because the hypothesis of manslaughter was so “patently reasonable that no jury . . . could rationally exclude it” – but to get back to a point that your Honour Justice Hayne has made time and time again, there is no evidence here of that because the effect of the man not giving evidence is that there is no evidence to support those hypotheses - that using the violent disposal of the victim’s body as proof of murderous intent “required the jury’s conclusion about a matter outside common human experience”.

We submit that that is just wrong. The point about it is that the only way the Crown could have proved in this case the intention was by the body, and the disposal of the body in the way that it was disposed of – it was not simply dumped so it could be found, it was completely dismembered and destroyed so that it could have no evidentiary value. That was significant. That was what the President thought was very important as being a very significant aspect of establishing that there was no other hypothesis available. His Honour then said:

“Even if I thought that the inference of killing with murderous intent was more cogent than the inference of a killing by unlawful and dangerous act I consider that, in all the circumstances the jury must have had a reasonable doubt of the . . . guilt of murder –

Now, we submit the way that they analysed it at the start, coming to the conclusions they came to before going through those matters at 3.8, they should have come to the conclusion of murder. You look at all the evidence together, not look at the evidence and then go back and look at what is not there, and then have a second bite at it.

It is our submission that the methodology used by the majority is what is the problem here and it is an opportunity for this Court to go through that methodology and the methodology of the President and give indications to intermediate Courts of Appeal of how Weissensteiner applies. Your Honours, that is the essence of it and the rest of it is in our submissions.

HAYNE J: Just one matter, Mr Gyorffy. The Court of Appeal ordered a retrial. Is that right?

MR GYORFFY: Yes, your Honour, on the manslaughter alone.

HAYNE J: There was no application in the Court of Appeal for that court to enter a verdict of manslaughter?

MR GYORFFY: I am not certain about that, your Honour. I do not think so.

HAYNE J: It seems not.

MR GYORFFY: Though it could have, of its own initiative, and generally does, your Honour, in those circumstances.

HAYNE J: It would ordinarily be entitled to expect the respondent to an appeal, if it sought that order, to ask for it.

MR GYORFFY: Yes. Is there any other matter that your Honours wish to raise? Thank you.

GUMMOW J: Yes, Mr Papas.

MR PAPAS: Your Honours, the exhortation of my learned friend to have Weissensteiner revisited, in a sense, would require some sort of argument to suggest that Justice Ashley, speaking for the majority, with which Justice of Appeal Ross obviously agreed and adopted his Honour’s reasoning, got it wrong. With respect, an analysis of Justice Ashley’s reasons and especially at page 181, paragraph 143 onwards, in the application book, in my submission, is indicative of a correct and an appropriate application of Weissensteiner, including references to RPS and to Azzopardi.

In other words, his Honour was acutely aware that times have moved, that there had been further discussion of the right to silence and the effect of the right to silence and that indeed, if your Honours start with a proposition that his Honour was correct in saying that the modern starting point for consideration of the significance of an accused’s silence is Weissensteiner – that really cannot be gainsaid – everything that flows from there in the subsequent paragraphs, in my submission, is correct, is an appropriate application of those principles. Finally, at page 185 of the book, paragraph 154, his Honour said this:

In the present case, the applicant gave an exculpatory version of events. It went into evidence.

That is picking up Justice Hayne’s point –

The jury evidently rejected it.

So the Court of the Appeal was attuned to, and was aware of, there being a version –

The jury must have rejected it in reliance upon Ms Harris’ evidence, and inferences arising there from.

Then it goes into the very distinct difference between how the Crown sees the case and how of course the respondent is putting it. For these purposes for the argument there is an abundance of evidence that goes to the question of whether the man was dead, and that the respondent knew that the man was dead. How he died, what mechanism, was it accident, was it unlawful

and dangerous act, intent, or was it murderous intent, could not be solved. That is our position. Nothing changes, and that in those circumstances, this is not the sort of case that needs special leave to clarify the law. If it please, your Honours.

GUMMOW J: Thank you.

MR GYORFFY: The response simply is that it is because that body was disposed of, and that last question went into abeyance, that the rest of the case stands up to the prosecution and it should have been a murder. If it please the Court.

GUMMOW J: The Court is not persuaded that the reasons of the majority in the Court of Appeal are attended by doubt. Accordingly, special leave to appeal is refused.

AT 11.27 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.49 PM:

GUMMOW J: Yes, Mr Papas.

MR PAPAS: If it please the Court, I am very sorry about this. I should have jumped up, but your Honours were very quick to call the next case, and perhaps I was too slow. At page 206 of our book - - -

GUMMOW J: Yes, we see that.

MR PAPAS: We sought costs, and really it was just a question of whether your Honours were of a view to grant costs. It is in discretion of the Court, but of course generally, the Crown does not pay or seek costs. This is a unique case in one sense in that this was an acquittal of a murder, and the man has been brought up here to defend himself. Having now won that part of the application – in other words, resisting the application – should he be out of pocket for this application. It is as simple as that.

GUMMOW J: Yes, Mr Gyorffy.

MR GYORFFY: My learned friend has stated the principle correctly. I will leave it to the discretion of the Court.

GUMMOW J: Yes, you will have the cost order that you seek, Mr Papas.

MR PAPAS: May it please the Court.

GUMMOW J: We will now adjourn until 1.30.

AT 12.50 PM THE MATTER WAS ADJOURNED