Woods v The Queen [2012] HCATrans 248 (5 October 2012)

Last Updated: 11 October 2012

[2012] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D4 of 2012

B e t w e e n -

GRAHAM WOODS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 OCTOBER 2012, AT 12.49 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR R.R. GOLDFLAM. (instructed by Legal Aid Commission)

MR W.J. KARCZEWSKI, QC: May it please the Court, I appear for the respondent Crown with my learned friend, MR M.J. MCCOLM. (instructed by Director of Public Prosecutions)

CRENNAN J: Thank you. Yes, Mr Odgers.

MR ODGERS: Your Honours, the application was filed a little over three weeks late and we seek an extension of time.

CRENNAN J: Any opposition to that?

MR KARCZEWSKI: No objection, your Honour.

CRENNAN J: Yes, you have that.

MR ODGERS: Thank you, your Honour. The question of general importance raised by this application is where the burden of proof rests in sentencing proceedings if an offender contends that some exculpatory or mitigating circumstance existed at the time of the commission of the offence, such as duress or provocation or, in this case, excessive self-defence. The prosecution takes issue with that claim, contending that the circumstance did not exist. The judgment in Olbrich has been understood by many lawyers and judges to impose a burden of proof on the offender in those circumstances. That was certainly the understanding of the counsel who appeared for Mr Woods, the applicant, below and - - -

CRENNAN J: Well, just going to Olbrich, which is in the folder of authorities, and I think paragraph 27 sets out what Olbrich stands for. You will see there that what was adopted by the Court was what was said by the majority in R v Storey:

that a sentencing judge

“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt.

So, that is the principle in relation to sentencing where a circumstance is to be considered that is adverse.

On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”

MR ODGERS: Yes. We, in substance, do not say that there is anything wrong in that statement. What we say though is that in applying those principles to a case such as the present an entirely different situation arises in comparison with Olbrich. Olbrich was a case, your Honours may recall, where the facts advanced by the offender did not relate to the circumstances of the offence but to events before the offence and events after it, and it was not necessary for the sentencing judge in Olbrich to determine the facts, and that the sentencing judge could proceed on the basis that the matters were unknown.

However, in cases like the present where the offender is asserting that there is a circumstance mitigating his culpability at a time of committing the offence and the Crown contends that the circumstance was not present, the sentencing court will invariably find it necessary to determine that factual issue because it - - -

KIEFEL J: Well, the issue here was his belief.

MR ODGERS: Correct.

KIEFEL J: In finding the Court of Criminal Appeal and finding that it was not satisfied that he had the requisite belief.

MR ODGERS: Yes.

KIEFEL J: That is not making a finding adverse. That is not taking a matter into account adverse to him, is it?

MR ODGERS: Well, we say, that the court necessarily found that he was – made a positive finding that he was not acting defensively. Can I just remind your Honours of the situation?

CRENNAN J: They regarded themselves as having to do that exercise, did they not?

MR ODGERS: Yes, yes.

CRENNAN J: Because, they discerned error in the way that it had been done below.

MR ODGERS: Yes. What happened below was that the sentencing judge felt bound to sentence on the basis that the applicant was not motivated to defend himself and others. And, indeed, the sentencing judge went on to sentence on the basis that his real motivation in leaving the unit with the weapons was annoyance or grievance. That was the factual basis upon which he was sentenced below. So, two elements; one, not acting defensively, did not have a belief it was necessary to act to defend anyone, and the true motivation was because he was annoyed or had some grievance with the people who had pursued him. So, those factual findings were flawed because his reasoning was flawed because he felt bound to reach them and the Court of Criminal Appeal accepted that he should have determined the facts for himself. So, the Court - - -

CRENNAN J: Page 178, paragraph [19], the Court of Criminal Appeal indicates what they are proposing to do and focusing on the appellant’s belief as Justice Kiefel pointed out - - -

MR ODGERS: Yes, indeed.

CRENNAN J: - - -at the time of the confrontation. Then they proceed to do that up to paragraph [36], as I apprehend it.

MR ODGERS: Yes. Can I just take your Honour back to page 177 – the bottom of page 77? Senior counsel for the appellant submitted that the:

Court should consider the evidence and determine for itself the facts relating to the appellant’s case.

They have held at 175 that the judge should have determined the facts for himself. He did not. They were now going to do that, determine the facts.

CRENNAN J: Yes.

MR ODGERS: I remind your Honours that the judge had sentenced on the basis of facts; that the offender was not acting defensively and was motivated by annoyance or grievance.

CRENNAN J: Then, if we go to 185, paragraph [35], the last sentence, one finds the conclusion after the Court of Criminal Appeal has done for itself the exercise that they said they would undertake – paragraph [19].

MR ODGERS: Yes.

CRENNAN J:

the Court is unable to make findings on the balance of probabilities which would enable us to accept the appellant’s contention as to excessive self-defence.

MR ODGERS: Yes, that is correct. They understood that the decision of the High Court in Olbrich had the effect that where the appellant contended he had a particular belief at the time of the offence which would bear on his culpability – that is, he believed it was necessary to do what he was doing to defend himself or others and the Crown’s case was, no, that was not the position – the court understood that the onus of proof was on the appellant, the offender, to establish on the balance of probabilities that he was so motivated. But then, of course, what flows from a conclusion that they are not satisfied on the balance of probabilities of that, the court then proceeds to simply say that:

The position thus remains that the culpability of the appellant is not mitigated by defensive conduct, albeit not for the reasons stated by the sentencing judge.

With respect, your Honours, my submission is there is only one way to interpret that. The court has made the same factual findings as the sentencing judge but for different reasons. He felt bound by the jury verdict to conclude that the appellant was not acting defensively and he was motivated by annoyance or grievance. The Court of Criminal Appeal, having applied the burden of proof on the applicant, says the position remains – that is, the same factual position remains – that he was not acting defensively, to replace the words that he used there with what I submit is the inescapable - - -

KIEFEL J: Because it was not satisfied about his belief.

MR ODGERS: Yes, they are making a positive finding that he was not acting defensively.

KIEFEL J: That is the conclusion, but the point at issue in an evidentiary sense is question of his belief.

MR ODGERS: Quite. Can I just remind your Honours about Olbrich? The reason the High Court in Olbrich said that there was no problem in that case was because it was not necessary for the judge to determine the factual question which had been raised by the applicant in that case that he was a courier. Therefore, it was not really even appropriate to talk in terms of burden of proof. It simply was something that - - -

KIEFEL J: The trial judge was simply not persuaded of the circumstances which the respondent contends should have been taken into account in his favour.

MR ODGERS: Correct.

KIEFEL J: In this case, what was contended that what should have been taken into account in his favour was the question of his belief. That is how it applies here.

MR ODGERS: Your Honour, can I perhaps take you back to Olbrich? If I can take you to the judgment at [1999] HCA 54; 199 CLR 270, paragraph 15:

In the present case, the precise nature of the involvement of the respondent in the act of importation was known: at least in the sense that it was known that he had brought the drugs into Australia. He was the importer. But if, as the Court of Criminal Appeal said, the course of events prior to or subsequent to the actual act of importation is relevant and necessary information, it may be accepted that little was known to the primary judge of those matters apart from what the respondent said in evidence. Was the primary judge obliged to inquire about them? If there was no evidence about those events, was the primary judge bound to make some assumptions about them that were favourable to the accused?

There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs.

The Court held that if the offender in that case had failed to establish that he was a courier, at that point the judge would simply say, “I do not know what his role was. It is not necessary for me to work that out. He was actually the importer and I will sentence him on that factual basis”. But it was not a case where a positive finding was made that he was not a courier. That is, it was not a case where a factual finding was made that he was a principal or something that is not a courier.

CRENNAN J: What about what is said against you on this point at page 203 of the application book, paragraphs 10 to 12 in the respondent’s submissions?

MR ODGERS: Of course, with respect, the issue of self-defence had been determined by the jury in the sense that the defence of self-defence had not been made out. But, of course, that was the very point that led the sentencing judge into error. It would not be open to a sentencing court to sentence him on the basis that he believed it was necessary to do what he did in self-defence and that it was reasonable to do so. The jury’s verdict excludes that. The jury’s verdict has no bearing on the question of fact which was, was he acting defensively?

CRENNAN J: Or the belief that he was acting defensively.

MR ODGERS: That is what I mean. When I use the term “defensively” - - -

CRENNAN J: Because this is a question about putting a point about moral culpability into the sentencing process.

MR ODGERS: Exactly, and the jury has said nothing about that. We ignore the jury’s verdict for that because we cannot draw any inference from the verdict.

CRENNAN J: It is just a question of belief and whether or not it was to be treated as a mitigating factor.

MR ODGERS: Yes but with respect, your Honours, it is obviously going to be a very important fact bearing on his culpability. Bear in mind - - -

KIEFEL J: What do you say the Crown has to do? One starts from the point that there is such a belief and the Crown has to disprove it?

MR ODGERS: It depends what the Crown’s position is. The Crown could - - -

KIEFEL J: But that is the effect of what you are saying, I think, and how you are applying Olbrich.

MR ODGERS: No, no. What I am saying is the Crown could simply apply Olbrich and say the Crown’s position is we do not accept that it has been established on the balance of probabilities that he was acting out of a belief it was necessary, but we do not make any submission positively that he was not acting defensively.

KIEFEL J: The first approach is the way the Court of Criminal Appeal approached it.

MR ODGERS: With respect, no. The court necessarily must be understood to have sentenced on the same factual basis as the sentencing judge because that is clear from what they have said at 185. They have not been persuaded that he was acting defensively. Then they say that means the position is the same as found by the sentencing judge but for the same reasons and given by implication they found the same facts upon which the offender was sentenced, therefore, we are not going to interfere with the sentence. If they were doing something different, your Honour, you would have expected them to say we are going to re-sentence on a different factual basis to the one upon which he was sentenced.

As I have sought to stress, the critical issue of culpability was a situation where he is a man who has not intended to stab anyone, we have to assume that that is the case. He has left the unit in order to scare people away: that is a factual finding in his favour. His culpability rests on doing something dangerous, leaving the unit and confronting people holding these weapons. That is his culpability.

Now, it would make a big difference, clearly, to his culpability whether or not he was acting defensively or not. If he believed it was necessary to defend himself or others any sentencing court would take the view that that significantly reduced his culpability. Conversely, if he is not acting defensively but is motivated by, in this case as the sentencing judge found, annoyance or grievance - - -

KIEFEL J: Two points in your written outline, you refer to the offender being given the benefit of the doubt on any factual issue. That is why I asked you whether or not your approach was really that a sentencing judge or the Court of Criminal Appeal should proceed upon the basis of that doubt existing and then see whether or not the prosecution has disproved the question of - - -

MR ODGERS: My answer is if the Court believes that it is necessary to determine the fact about, in this case the factual question, was he acting defensively or not – if it feels that it is necessary to determine that fact – then you have to allocate the burden of proof to somebody. The short answer would be, if it is a reasonable possibility that he was acting defensively he should be sentenced on that basis. That is the English position. The English position is, as your Honours appreciate, I am sure, that when it comes to the circumstances of the offence there is never a burden of proof on the offender, it is always on the Crown to prove, beyond reasonable doubt, that the circumstances are as they contend.

KIEFEL J: But, this is a defence.

MR ODGERS: Well, yes, but of course we know that under substantive criminal law almost all defences are matters that the Crown must rebut beyond reasonable doubt. If excessive self-defence was being dealt with in New South Wales it would be a matter for the jury to be satisfied beyond reasonable doubt he was not acting in self-defence. So, what we are contending here is that sentencing proceedings are essentially an extension of a criminal trial and, as in English, if there is an issue of fact which the Court needs to resolve, unlike Olbrich where there was no need to resolve the factual question, it was not necessary for the judge to determine it. That is why there was no error made.

KIEFEL J: What we are concerned here is a mitigating factor which he is asking to be taken into account on his behalf.

MR ODGERS: Yes, but the difficulty with the passage is that, we would say, that it is aggravating to find that he was not acting in self-defence. I mean, maybe this is where the core issue arises. Justice Callaway - - -

KIEFEL J: The Court of Criminal Appeal is being asked to take into account as a mitigating factor that he had the requisite belief, it was simply not satisfied about that.

MR ODGERS: I understand that.

KIEFEL J: That is not taking into account a matter adverse to him. It is simply not being satisfied of a matter which would favour him. You have inverted Olbrich.

MR ODGERS: I completely understand what your Honour is putting to me, but I am saying that in substance the court then proceeded to take another step where error was involved. What does the court do?

KIEFEL J: But all you are pointing to is a conclusion that results from the court’s finding.

MR ODGERS: No. There are three possibilities: he was acting defensively, he was not acting defensively or we do not know. Those are the three possibilities. Now, if there is a failure on the part of the offender to persuade the court that he was acting defensively the court still has two options. It can say, “We will now sentence him on the basis that we do not know what his motivation was” or they can go to the next step and say, “We will sentence him on the basis that he was not acting defensively which is how the sentencing judge below had sentenced him.

In Olbrich the judge did not go to the next step of saying, “I will sentence him on the basis he is a principal”. It said, “I don’t know what his position was”. But, in this case the Court necessarily – it does not say so explicitly but the inescapable conclusion is they proceeded to conclude that he should be sentenced on the basis that he was - a positive finding – not acting defensively, that is as the sentencing judge below had sentenced him, not acting defensively, motivated by annoyance or grievance.

That is the step where the error occurs because if you are going to take that step, as in England, it has to be something that is proved beyond reasonable doubt, and it is using it adversely to him. You are using a finding that he is not acting defensively to increase his culpability and impose a more severe sentence.

CRENNAN J: What about the concession that was made? I know I have raised this with you already but I am coming back to it, I suppose. Page 177 at paragraph [18] and what Ms Cox QC, senior counsel, acknowledged, reading on page 178.

MR ODGERS: Yes.

CRENNAN J: How does your argument fit with the concession there in footnote 9? I just do not quite follow it.

MR ODGERS: Your Honour, it seems to be accepted by lawyers and judges around this country that the result of Olbrich is that where there is an issue of duress or excessive self-defence or provocation the onus is on the offender. Ms Cox understood that to be the position. I am contending before your Honours that is a misunderstanding of Olbrich.

CRENNAN J: Yes, but I am talking about the burden of proof point.

MR ODGERS: My submission to your Honours is if the Court is going to make a positive finding that he was not acting defensively and use that to assess his culpability that is something that is adverse to his interests and that is something that has to be proved beyond reasonable doubt as it is in the United Kingdom. That is the error.

Once you go the next step of saying, we sentence him on the basis that he was not acting defensively and was motivated by annoyance or grievance, that is where the burden of proof necessarily must rest on the prosecution beyond reasonable doubt, and the court in this case – I see the red light; I will just say the last thing – has clearly sentenced him on the same factual basis as the sentencing judge below, which means that they must have made that factual finding that he was not acting defensively, was motivated by annoyance or grievance, that is where the error occurred. That is the fundamental issue of general importance that arises: whether or not Australia should follow the English position and accept that where it is an issue that is being determined, an issue of fact that is being determined because it is necessary for determining culpability, the onus must rest on the prosecution. May it please the Court.

CRENNAN J: Yes, Mr Karczewski.

MR KARCZEWSKI: The nub, your Honours, of the applicant’s submission appear in paragraph 3.9 of the written submissions at page 196 of the application book. There the applicant sets out what the test would be under the extended Olbrich principles and your Honours will see where it is said, amongst other things, that:

It is not a situation where the sentencing court will consider that the matter is unknown.

Although this case involves the issue of self-defence, when one reads paragraph 3.9 and indeed what has been said today in oral argument, it is difficult to see how any extension to the Olbrich principles could be confined to the issue of self-defence and/or duress, and indeed it seems that they would spill over generally into the general law of jurisprudence relating to sentencing of offenders.

If the position is that a sentencing court will consider the matter is unknown, then that means to say that the outcome in Olbrich will be precluded. Yet, it is an outcome which this Court has recognised in the subsequent case of Weininger v R (2003) 212 CLR 629. It is in tab 3 of the respondent’s list of authorities. In particular, the Court at page 637 at paragraph 23, the majority there stated that although some matters:

that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned).

The majority went on to point out that:

Some matters will remain unknown to the sentencing judge.

and, that –

some will concern matters in which a range of answers may be open.

Also, in Weininger, at page 636 at paragraph 19, the majority suggested that:

Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender.

Just pausing there, that would seem to be what is being urged upon your Honours today. Back to Weininger, the majority there denied the proposition and following Olbrich went on to say that:

some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

CRENNAN J: Well, it comes down, I think, to the point that the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation.

MR KARCZEWSKI: That is exactly right. Going back to paragraph 3.9 of the applicant’s written submissions, that appears to be what is being urged upon this Court. That is an undoing of the well-established principles enunciated by this Court in Olbrich and followed in a series of subsequent cases – Cheung and in Weininger – and followed throughout Australia by various Courts of Criminal Appeal and, indeed, followed by this Court in the instant case.

As for the English position – and we understand the applicant’s argument to be that this Court should align itself more with the English position – that position was adverted to by this Court in the decision in Olbrich at page 280, paragraph 24. Your Honours will see that the majority there says:

Courts of criminal appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years.

Then there is footnote (28). When you go down to footnote (28) we see that many cases are referred to and down the bottom of the footnote the English position is referred to, Newton’s Case, Guppy and Marsh is referred to. Indeed, what follows from that is that this Court made a deliberate decision to move away from the fairly prescriptive approach taken by the English courts in relation to fact finding, either following verdict or upon a plea of guilty.

My learned friend, in his list of authorities, had several cases, English cases. One was the case of Kerrigan, one was the case of Lashari [2010] EWCA Crim 1504. Those cases, we would say, do not establish any new principles. They simply set out the existing law in those jurisdictions, which we stress is different from the approach taken by sentencing courts in Australia, as dictated by this Court in the cases of Olbrich, Cheung and Weininger.

Indeed, the English position drew the distinction between the facts and circumstances of the offence on the one hand and facts said to be – and matters extraneous to the offence on the other hand, extraneous matters of mitigation, and the defendant bears the onus of proof in those cases to prove on the civil standard. Whereas when it comes to the factual circumstances of the offence – and this is the line that the applicant would like this Court to take - then the prosecution must prove those or disprove them beyond reasonable doubt.

Now, the point that we would make here is that the English position is not all that dissimilar to the distinction that was drawn by the Victorian Court of Appeal in the matter of R v Ali [1996] VicRp 56; [1996] 2 VR 49. It is not referred to in anybody’s list of authorities, your Honours, but Ali is referred to in the case of R v Storey [1998] 1 VR 359, and Storey is in the respondent’s list of authorities at tab 5.

CRENNAN J: Well, we noted that passage from Storey that was picked up in paragraph [27] of Olbrich.

MR KARCZEWSKI: Yes. In any event, your Honours, the point that we wish to make is that the approach that was once advocated in Ali, that is, that for the purposes of sentencing the distinction has to be drawn between circumstances of the offence and circumstances of the offender, that was rejected by the Victorian Court of Appeal in Storey, and of course Storey was subsequently approved by this Court in Olbrich and the cases following. Apart from that, your Honours, we rely upon our written submissions, unless we can be of any further assistance to the Court.

CRENNAN J: Yes, Mr Odgers.

MR ODGERS: Just returning to Olbrich at paragraph [24]. We do not challenge the proposition that a judge who is not satisfied of some matter must, nevertheless, sentence on the basis that the prosecution has not proved the contrary. We do not challenge that, but the critical point is that sentencing courts when it comes to the circumstance of the offence invariably need to determine the facts of the offence because it is essential to the assessment of culpability. It is essential to the assessment of culpability. Now, you do not simply say, well, I am not persuaded that the offender has established that he was acting defensively.

You then have to say, well, what do I do now? Do I say I do not know or do I sentence him on the basis that he was not acting defensively which is exactly what happened in this case. When you take that step you are making a factual finding adverse to the offender. You are making a factual finding that he was not motivated to defend himself or others and

that, therefore, the culpability of his offence is significantly worsened. As I say, that is what happened in this case. That is what the Court of Criminal Appeal must be understood to have done in those circumstances and there is nothing in Olbrich which says anything to the contrary. It is essential that that adverse fact – indeed, Olbrich stands for the proposition that where something is relied on is adverse to the interests of the accused, the prosecution has to prove it beyond reasonable doubt.

The only difference between Olbrich and the English position – the only difference – is that the English position recognises that a sentencing judge when it comes to the circumstances of the offence will have to make factual findings. In contrast with the Olbrich situation where it did not relate to the circumstances of the offence, it is not necessary to make a factual finding, but when it comes to the circumstances of the offence, it is. That is why the English courts say the onus burden must rest on the prosecution in respect of those facts.

In this case, an adverse finding was made by the sentencing judge, it was applied by the Court of Criminal Appeal, it was adverse to his interests, it was something that needed to be proved beyond reasonable doubt. Olbrich is entirely consistent with that proposition. If special leave is not granted in this case, lawyers and judges around this country will continue to believe that the onus rests exclusively on the offender and that, with respect, is not the correct position. May it please the Court.

CRENNAN J: The applicant was convicted of manslaughter. He was sentenced to imprisonment for nine years and six months with a non-parole period of four years and nine months. The applicant appealed against his sentence on the ground that the trial judge had failed to take into account the fact that the applicant had been motivated by self-defence or the defence of another in mitigation of the applicant’s sentence. The Court of Criminal Appeal of the Northern Territory unanimously dismissed the applicant’s appeal, finding that the applicant had not established on the balance of probabilities that he had been motivated by self-defence or defence of another. The Court of Criminal Appeal was not satisfied that the applicant had the requisite belief necessary for self-defence. The Court of Criminal Appeal was entitled to refuse to disturb the sentence in those circumstances upon the basis that the requisite belief did not provide a mitigating factor. As was said in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 280, paragraph 24, a sentencing court is not obliged to take a matter into account in an offender’s favour unless the prosecution proves to the contrary.

Special leave is refused.

AT 1.25 PM THE MATTER WAS CONCLUDED