Lindsay v The Queen [2014] HCATrans 252 (14 November 2014)

High Court of Australia Transcripts

[Index] [Search] [Download] [Help]

---

Lindsay v The Queen [2014] HCATrans 252 (14 November 2014)

Last Updated: 17 November 2014

[2014] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A15 of 2014

B e t w e e n -

MICHAEL JOSEPH LINDSAY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 NOVEMBER 2014, AT 10.25 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC: May it please the Court, I appear for the applicant with MR B.J. DOYLE. (instructed by North East Lawyers)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with MR M.E. BOISSEAU, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Thank you.

MS SHAW: The applicant’s appeal to the Court of Criminal Appeal against his conviction for murder contended that there were misdirections made by the trial judge in relation to the partial defence of provocation.

FRENCH CJ: Well now, misdirections were found but then the Full Court applied the proviso, as I understand it, on the basis that provocation should not have been left to the jury.

MS SHAW: That is so.

FRENCH CJ: And your complaint is (a) about their invocation of the provisos were their own motion, and (b), the reliance upon unspecified academic writings.

MS SHAW: And on the basis further that the Crown below did not contend that provocation should not have been left to the jury.

FRENCH CJ: When you say “the Crown below” you mean at the trial?

MS SHAW: At the Court of Criminal Appeal.

FRENCH CJ: I am sorry, yes.

MS SHAW: Yes, so the Crown below did not contend that provocation should not have been left to the jury. So the applicant did not get a hearing on the question of whether or not provocation should not have been left to the jury, and our fundamental complaint is that the applicant therefore was denied procedural fairness in relation to that hearing. His only opportunity for hearing being heard, as it transpires, is in this Court and it is only in this Court that the respondent has been taxed to put a position in relation to whether or not provocation ought to have been left.

In our respectful submission, the substantive errors that we complain about flow from that procedural error and, of course, we submit that it is fundamental to the adversarial system and the accusatorial system that if a contention such as the invocation of the proviso and a submission that the provocation ought never have been left, it is fundamental that that position is made by the respondent and that the applicant is granted the opportunity to be heard.

FRENCH CJ: Now, Justice Peek, I think, in the Court of Criminal Appeal did raise the issue of the proviso.

MS SHAW: He raised it with the appellant during the appellant’s argument in a way that did not suggest one way or the other whether that was the direction in which the court was heading because he followed it up, which is set out in our reply. If I can take the Court to the reply and the transcript of what was said, effectively with a reply to – page 303, your Honours, and I point out this was only raised in passing during the appellant’s argument, and this was during the appellant’s argument in paragraph 8:

At that point, Peek J said (T24-26):

You say Mrs Shaw we simply don’t know at which stage the accused failed, if I can put it that way, that to say it was the subjective or objective stage we don’t know. Accordingly directions have to be correct in relation to those. ... In other words, in that rather unusual circumstance that the Crown did that, and one can see why they did it, one cannot discount the possibility there that the accused succeeded on the objective, and, therefore, hence the need for proper directions?

These references to when the question of the proviso was raised was during the appellant’s argument, and when it was raised the submission made by the applicant was that it was a matter for the Crown to establish, and pursuant to Green if the subjective limb was clearly resolved in the applicant’s favour, which it was in this case, then necessarily it was a matter for the jury to determine whether the ordinary man in the circumstances of the applicant would have lost or could have lost self-control.

Then when the respondent was called upon to make submissions, which is set out in paragraph 10, at no stage did the respondent invoke the proviso; at no stage did the respondent lay out a basis upon which the proviso ought to be applied, bearing in mind that this Court has held that if the proviso is to be applied, then the Crown do need to lay out the basis upon which they say it applies and, therefore, it follows the applicant was not heard. Your Honours will see that we have set out in paragraph 10 the specific exchange that occurred, where - - -

FRENCH CJ: So the Court of Criminal Appeal did not raise the question at the hearing of the appeal whether provocation ought to have been left to the jury?

MS SHAW: That is so.

FRENCH CJ: The Crown did not put the position that it ought not to have been - - -

MS SHAW: That was not the Crown’s position. The Crown’s position was that the misdirections did not result in error, and relied on paucity of the evidence to suggest the misdirections did not result in a miscarriage; in essence, the approach that his Honour Justice Gray took, that the directions could have been better but there was no miscarriage.

FRENCH CJ: We might hear from the Solicitor-General, I think.

MS SHAW: Thank you, your Honour.

MR HINTON: If the Court pleases. Does the Court still have page 303 in my learned friend’s reply of the application book open?

FRENCH CJ: Yes.

MR HINTON: I invite the Court’s attention to paragraph 8. You will see there the concession that the basis upon which Justice Peek, with whom the Chief Justice agreed, disposed of the matter was fairly and squarely raised by the Chief Justice and the - - -

GAGELER J: You get that out of the first sentence, do you?

MR HINTON: Yes, your Honour, in the course of the argument.

GAGELER J: Mentioned.

MR HINTON: Mentioned; and the second sentence, your Honour:

The Chief Justice asked whether it would be open, by reference –

There is the specific question, on the basis of the second limb of the provocation test, is it open to us to apply the proviso and to find as Justice Peek did? The issue was alive and it was there. To that extent, there was the opportunity to make submissions. To that extent, the applicant was heard.

May I add to that one primary reason why special leave should not be granted in this case, and that is because even if this Court were to proceed to grant special leave it would arrive at the same conclusion as Justice Peek and the Chief Justice. With respect to that, can I take your Honours to the circumstances summarised in Justice Peek’s judgment that supported the defence of provocation. That commences at page 228 of the application book, paragraph 97, and then through to 101, Justice Peek sets out the first incident. It is an incident that occurred outside under the pergola where the deceased made a sexual advance toward the applicant.

You will see at paragraph 101 that Justice Peek describes the deceased as persisting in this conduct, not at that point out under the pergola, but later when they enter into the house. Significantly, at paragraph 102, his Honour summarises, for the purposes of the first limb of the provocation test, what was the provocative conduct and its gravity. Significantly, it is a combination of the advance that may have challenged the appellant’s sexuality – at about point 5 of paragraph 102, if your Honours please – and his integrity. We:

take the view that such suggestions made in the present of a man’s female partner, child, and his sisters might cause a greater degree of comfort -

His Honour then deals more in greater detail with the episode outside under the pergola, on the patio, and then the second episode in the family room that precipitated the murder. My submission is that when one applies the objective limb – and here it must be borne in mind that the applicant did not give evidence. The applicant did not give evidence and there was no evidence as to any particular or special personality trait that he possessed such that the gravity of this provocative conduct could rise to a height beyond what could be inferred from paragraph 102 of his Honour’s judgment.

So if we are left with paragraph 102, in my submission, an accurate summary of the real sting of the provocative conduct, then when one applies the objective limb – and there is no complaint that the Court of Criminal Appeal did not apply it – did not get that objective limb correct – when one applies - - -

FRENCH CJ: The point of entry normally is subjective loss of control and there is no dispute here that there was evidence of subjective loss of control. I look at paragraph 113.

MR HINTON: There is no dispute, evidence capable of – yes, your Honour. No dispute, paragraph 102 – sorry, I will withdraw that. No dispute, first limb, evidence capable. It is the second limb where we introduce the ordinary person. We introduce the hypothetical person and apply a standard expected of an accused confronted by provocative conduct of the gravity assessed from the point of view of the accused. We ask whether or not the ordinary person confronted by conduct of that gravity

could have acted in the manner that the accused did and there, in my submission - - -

FRENCH CJ: A question one would think particularly appropriate for consideration by a jury.

MR HINTON: That is the applicant’s submission. But, your Honour, I put it – as indeed did Justice Peek and the Chief Justice – that no jury could possibly. That is a question for a trial judge if we are in the context of a trial, is the evidence capable of satisfying the second limb, the objective limb? That is what Justice Peek found and the Chief Justice agreed to. So once they arrive at the conclusion that no jury could possibly apply in the second limb, then it is appropriately a question of law for the Court of Criminal Appeal or a trial judge as to whether or not the defence should be left.

So it was applied, in my submission, directly and appropriately in this case where we have no evidence from the applicant at all. Your Honours will be asked to.....the same exercise, having heard my learned friends as to what possibly that academic literature was but, ultimately, will arrive at the same conclusion on the evidence. To that extent, the ultimate outcome is not attended by sufficient doubt such that this is a suitable vehicle for a grant of special leave. If the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Ms Shaw.

MS SHAW: If your Honour pleases, three points in reply. First of all, this was not a case where it was simply found that there was a subjective loss of self-control. In fact, Justice Peek held that there was substantial evidence of provocative conduct. That is at page 231, 112, and therefore at page 263 application book, paragraph 228, he held:

There was ample evidence for the jury’s consideration of the subjective limb, namely that the appellant was in fact provoked by the conduct of the deceased and did thereby lose control.

In other words, the provocative conduct was substantial, the loss of control was clear; these were matters that were not in dispute on the Crown case. Therefore, the fact that the applicant did not give evidence is not to the point because the applicant’s case of provocation was undisputed on the Crown case.

The second point we make is that the suggestion that the jury would inevitably have found on any view of the facts that the ordinary man test could not be satisfied stands against, we submit, first of all the remarks of his Honour Justice Peek at page 264 where he says in paragraph 235 effectively that:

in former times . . . the provocation present here would have been seen as giving rise to a verdict of manslaughter rather than murder.

That is not having regard to our contention that his Honour has wrongly narrowed the nature of the provocation to a homosexual advance and missed the real sting which was, we submit, the insult to this man’s integrity by suggesting he would accept money to have sex in the presence of his wife when he had already been threatened to be struck if he made the offer again, and he did so.

Your Honours, finally our third point is this. When the respondents have now put a position as to what they say is the nature of the provocative conduct and how the test applies, at page 299 of the application book in paragraph 21 the respondent says at line 28:

It could not be excluded beyond reasonable doubt, the jury might reason, that an ordinary person with ordinary powers of self-control might punch or shove Mr Negre or throw him bodily from the house. But no reasonable jury could fail to reach the view that no ordinary person could have so lost self-control as to form an intention to kill or do grievous bodily harm and to act upon it by beating and stabbing Mr Negre.

Your Honours, that position put for the first time – if it had been put below – would have meant that the applicant would, no doubt, have referred the court to the judgment of this Court in Green v The Queen 191 CLR 334. At page 345 in the judgment of the former Chief Justice Brennan, page 17 of the case book, the description of the ordinary man test and whether it could be satisfied mirrors, in some respects, the approach of his Honour Justice Priestley where he took the approach that is argued for by the Crown that, effectively, the area in which it failed related to the question of the ordinary man test. But his Honour, Chief Justice Brennan, as he then was - and I am referring to his judgment - - -

FRENCH CJ: Well, you are referring to 345 after the quote from Justice Priestley, are you not?

MS SHAW: Page 345, after the quote. I apologise, your Honour. I just lost my note.

FRENCH CJ: Well, he says it is a jury matter.

MS SHAW: It is a jury matter. So the question of whether or not he would have formed the intention to cause at least grievous bodily harm or merely the intent to cause serious harm is, classically, a jury matter, and as his Honour Chief Justice Brennan said - - -

FRENCH CJ: Yes, thank you, Ms Shaw. There will be a grant of special leave in this matter. That will be half a day to a day, I would think.

MS SHAW: I would think so, your Honours.

FRENCH CJ: Do you agree, Mr Solicitor?

MR HINTON: Indeed, your Honour, yes.

FRENCH CJ: Yes, all right, and there is a timetable available to the parties. The Court will now adjourn to reconstitute. I notice there is a little bit of difficulty with the microphone at the South Australian end. Every now and again we are getting a little break in the voices so just while we are briefly adjourned somebody might like to check that. We are able to deal with it but it is just slightly irritating. All right, we will adjourn briefly.

AT 10:43 AM THE MATTER WAS CONCLUDED