MA v The Queen [2016] HCATrans 277 (16 November 2016)

Last Updated: 24 November 2016

[2016] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S85 of 2016

B e t w e e n -

MA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 NOVEMBER 2016, AT 10.48 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC: May it please the Court, I appear with my learned friends, MR P.D. LANGE and MR E. JAMES, for the applicant. (instructed by Murphy’s Lawyers)

MS K.N. SHEAD, SC: May it please the Court, I appear with my learned friend, MR H. BAKER, for the respondent. (instructed by Director of Public Prosecutions (NSW))

BELL J: Yes.

MR JAMES: Your Honours, there is a preliminary matter. An extension is necessary as referred to in the book at page 165 - - -

BELL J: Yes, is that - - -

MR JAMES: - - - and the affidavit is at 167.

BELL J: Is that opposed?

MS SHEAD: No, your Honour.

BELL J: Yes.

MR JAMES: Thank you, your Honour. Your Honours, this application has a slightly chequered history, as your Honour Justice Bell would remember. It came before the court, in form at least, or I should say in substance at least, on an application for special leave pursuant to a determination of the New South Wales Court of Criminal Appeal under section 5F. The application was refused and specifically on the basis of the possible fragmentation of the criminal process.

BELL J: The criminal process has now run its course and the issue that was the subject of the 5F determination has crystallised.

MR JAMES: Has crystallised.

BELL J: Yes, and so the judgment of significance for present purposes is the leading judgment given by Justice Macfarlan.

MR JAMES: Yes.

BELL J: Yes.

MR JAMES: And, indeed, the alternative count, which was the subject of that application, was the only count on which he was convicted.

BELL J: Yes.

MR JAMES: The oral submissions made on that occasion appear on pages 28 to 31 of the application book. I would not seek to repeat them so far as they went to the general effect of the decision of the Court of Criminal Appeal. The decision in the Court of Criminal Appeal was given in a context of an examination of whether the 13 or 14-judge decision, a majority of nine out of that – the Court for Crown Cases Reserved, the common law judges - your Honours will find it set out under the heading “Case Law” from pages 12 onwards - in Clarence - on the basis of which criminal justice in New South Wales in respect of these matters had been conducted for over 100 years no longer was of good force or effect principally because of two decisions in the United Kingdom since then, one in Ireland and one in Dica, both of which are referred to in the analysis of the case law by Justice Macfarlan. Justice Macfarlan delivered the judgment for the court.

Both Ireland and Dica dealt with aspects of the effect of the judgment in Clarence, Dica looking to whether the judgment in Clarence had been affected by notions concerning consent to intercourse within marriage; Ireland concerning a view taken in the House of Lords expanding the process of statutory construction such as to be able to conclude that no direct or immediate application of force was any longer to be considered as necessary for the concept of inflicting grievous bodily harm.

That case went so far as to include in grievous bodily harm psychiatric damage, notwithstanding the express words. Consequently, one ended up with a proposition that one could have infliction by infection of a disease rather than grievous bodily harm, and that it could include psychiatric harm in the definition of an offence which had long stood in New South Wales as requiring either an intent or at least an advertence to the likelihood of harm derived from section 5 malice such that there had to be a direct application of force or if not a direct application of force, an application of force at least not too remote if indirect. The way in which the Court of Criminal Appeal set about in the judgment of Justice Macfarlan - - -

BELL J: Before we come to it, the essential point, Mr James, is, is Clarence good law? Is that - - -

MR JAMES: We do not even have to go that far. Is there so much left of Clarence that the offence, whilst containing an advertence to a likelihood or possibility or probability in the malicious section, cannot be constituted by a consensual act of intercourse, and that is what occurred here. The discussion in Dica of whether there would or would not have been consent if beforehand there had been a declaration of possibility of infection by one of the partners leads you into other realms particularly concerning the law relating to sexual intercourse and rape and so forth.

BELL J: Can I just raise this with you? Section 35 has been since amended so that the language now is of cause as distinct from inflict. Your contention, I take it, is that the interests of the administration of justice in the individual case would justify - - -

MR JAMES: Both in the individual case and in a sense that has not helped. If your Honours look to page 10 of the application book, the relevant liability provisions as opposed to section 5 appear on page 10 – sections 33, 35 and 36. Section 36 was available at the time. The Act had been amended to include section 36. That required a malicious causing with intent to cause.

Now, “cause” has various meanings, as we have seen in many areas of legal discourse. So far as it might be suggested that doing some sort of act which precedes or communicates the infection is a sufficient cause; we will get into a further discourse unless the inflict in this case is confined. So that it may well be that this case will be important from the point of view of considering the interpretation of the newly amended legislation. Similarly - - -

BELL J: I am sorry, Mr James, I am just slightly lost on this. This case, if special leave is granted, will turn on what inflicting grievous bodily harm for the purposes of section 35(1) means - - -

MR JAMES: It will.

BELL J: - - - as to the provision sought.

MR JAMES: It will, but it will only have incidental effect further. Similarly, in relation to “reckless”. “Reckless” was taken out of the definition of “malice” in section 5 or “maliciously”, to be precise, and extended to a concept of its own. Section 5, which can be found helpfully set out on page 181 of the application book - which has long been a provision of dispute and, indeed, various of the Judges of this Court, including Justice Fullagar in Mraz, have referred to section 5 as inscrutable - requires that there be an act done of malice. In that context, that seems to be an act done of common law malice which was a different thing to what the statute was referring to:

or done without malice but with indifference to human life or suffering –

and then the alternatives of “intent to injure”:

and in any such case without lawful cause or excuse –

and it was the lawful cause or excuse that activated the court’s mind in Dica and some of the earlier cases because the consent was lawful – the intercourse was lawful:

or done recklessly or wantonly –

The “recklessly” there in this case was taken, as it were, out of the definition to govern entirely the use of the word “maliciously” in the charge. The two charges preferred against him were section 35 and section 33, both of which had that element, but in this case it was from first to last the suggestion that he was relevantly reckless for the malice requirement to come into effect. Indeed, the trial judge went almost so far as to direct the jury that they had to convict on that element. If your Honours turn to page 65 of the application book, commencing – and dealing with alternate count 2 – at line 11:

Just in relation to the issue of recklessness, members of the jury, can I remind you of the evidence of [MA] at pp 609 to 610 of the transcript.

[MA] gave evidence at the trial:

In cross-examination by the Crown, at the bottom of p 609, the Crown said,

“Q. [MA], did you deliberately want to infect [GB]?

A. He was my partner. Why would I?

Q. Did you want him to be infected so you could be infected together?

A. Totally incorrect.”

Then the question at the top of p 610,

“Q. But you knew there was a possibility that you could infect [GB]. Correct?

A. A possibility. Correct.

Q. Yet you went ahead anyway and had sex with him, unprotected anal sex, knowing that there was a possibility that you could infect [GB].

A. Correct.

Q. So you knew there was a possibility. You went ahead with anal sex, knowing that there was a possibility that he could be infected?

A. I just answered that question, but correct.”

You might think, members of the jury, in relation to the issue of recklessness, the accused agreed that he acted recklessly, but of course, the fact that he acted recklessly does not mean he is guilty of the offence because the Crown still has to prove, firstly, beyond reasonable doubt, that the accused actually infected –

It remained, however, an issue given that what he had adverted to was he had considered the possibility on occasions of that occurring. That is why the rule 4 leave was granted, as Justice Fagan said in delivering the judgment on the second Court of Criminal Appeal decision at paragraph 85:

As the manner in which the jury was directed upon the element of recklessness was fundamental to their deliberations, I would grant leave under rule 4 notwithstanding that the point comprehended by Ground 3 was not taken by counsel at trial. However for the reasons given I would reject this ground.

What his Honour did was to examine, commencing at page 159 of the application book, the concept of recklessness as it might relate to recklessness as used in section 5 and has been translated later into the amendments. Your Honours, I too, as counsel in the previous matter, sat here hearing reference to the various intentional states, including in relation to criminal activity, being raised in many contexts.

Recklessness is raised in many contexts. The word itself is limited in its assistance to persons as to what one is talking about. It is often equated with gross carelessness, advertence to probability, likelihood, possibility. Indeed, in New South Wales in Annakin, the court found itself deliberating on the difference between “may” and “might” for the purpose of reckless indifference to human life.

Now, it is a very real question to examine in these circumstances what is the present state of the law in New South Wales concerning offences both of murder and of other offences in which recklessness is said to be the relevant mental state element.

BELL J: In murder as well as other offences?

MR JAMES: Well, your Honour, Crabbe was a murder offence, a common law murder offence.

BELL J: Indeed.

MR JAMES: And reckless indifference to human life – that word “recklessness” may need to be considered. This Court has gone so far in Zaburoni, in Miller, when dealing with the views taken in the United Kingdom in Jogee and Ruddock concerning McAuliffe and the relevant mental element to be linked to persons who are complicit in a joint criminal design in which they have an object.

But recklessness often does not deal simply with object. Indeed, the sort of recklessness this Court has talked about in Banditt deals with a different category of offence. We now have a different category of offence and the term is being used without any real precision, in our submission.

BELL J: Is not your point that the Victorian court has adopted a view respecting criminal liability and the meaning of “recklessness” requiring advertence to probability of risk – coming home – and that apart from murder in New South Wales a less demanding test has been taken.

MR JAMES: Yes, and that so far as one talks about probability and possibility, the nature of the risk and the gravity of the risk is something that one always has to take into account. There is no simple line between possibility and probability and it has been interpreted as though there were.

Now, your Honours, I cannot really, on an application for special leave, do more to point out the significance of the questions we seek to agitate. They are the submissions we make.

BELL J: Thank you. Yes, Ms Shead.

MS SHEAD: Your Honours, turning to ground 1, the Court of Criminal Appeal was correct to find that the offence in count 2 in the indictment was one known to the law in 2004. There is no continuing relevance to the current amended section 35. That charge, as your Honour Justice Bell indicated, referred to cause rather than inflict, and the Court of Criminal Appeal found that the word “inflicts” in the now repealed section 35(1)(b) should not be given the restricted meaning contended for by the applicant.

BELL J: Just looking at the interests of the administration of justice in the particular case, the approach that the Court of Criminal Appeal took was one that assumed the majority of the common law judges in Clarence that the law stated by them no longer applied.

MS SHEAD: That is correct, your Honour, the Court of Criminal Appeal did determine that Clarence was no longer good law, that it took into account Victorian notions and that since that time thinking about concepts and principles have moved away from those outdated concepts and that taking into account the development of the law in Australia and in the United Kingdom, that Clarence in its restricted approach was no longer apposite to understandings of, for instance, psychological harm and the way diseases are now understood.

BELL J: At some point, did the offence created by section 35(1) as it stood at the time change its meaning?

MS SHEAD: No, there was no change in the meaning in relation to the offence itself, your Honour. It is the contemplation of the word “inflict” and what that word can include, it moving from a more limited consideration with Clarence and a more expansive consideration as the cases thereafter considered that issue, indicating that wider concepts that were not simply limited to the infliction of actual force could be embraced by the operation of that section.

NETTLE J: If it did not change its meaning, presumably the perception of its meaning changed.

MS SHEAD: That is so, your Honour. The perception of the meaning must have changed to encapsulate the other alternative methods of application other than violence and immediate assault.

NETTLE J: But presumably when it was enacted it was with the purpose which aligned with the perception which then obtained.

MS SHEAD: That must be correct, your Honour, yes, we accept that.

NETTLE J: That does rather suggest there has been a change in meaning, does it not?

MS SHEAD: A change in meaning in terms of what can be accommodated by the term “inflict” must be accepted, your Honour, yes, but the narrow construction then contemplated by Clarence in the respondent’s submission is that that was as a response to the notions as at that time and the need for the law to move with the times and the common law to impart other appropriate accommodations reflects the change in the meaning of that particular word.

NETTLE J: It seems now, as Mr James submitted, that it would be sufficient to constitute an offence of inflicting grievous bodily harm to contemplate that by one’s act, which in no way bore physically upon another, there was a mere possibility of causing them serious mental injury.

MS SHEAD: If that was the advertence, your Honour, yes, and some of the United Kingdom authorities dealing as they do with the infliction of injury as a result of psychological stresses, stalking and the like, seem to be indicating that that is so.

NETTLE J: It is a remarkable leap from where we were with Clarence.

MS SHEAD: It is, your Honour. From 1888, much has changed, in our submission, and understanding about the way harm is visited upon individuals is significantly different since that time.

NETTLE J: Sounds like it is a point of general public importance.

MS SHEAD: Well, subject, your Honour, to the fact that sections 35 and 36 are no longer in force in the way that they were as at the time of this trial.

BELL J: What about the recklessness issue?

MS SHEAD: Yes, your Honour. Moving to ground 2, your Honour Justice Bell was correct that the point really can be encapsulated by looking at the difference between New South Wales where, in the respondent’s submission, it is well settled that for murder probability is the advertence that is required, whereas for other charges, it is possibility. In a sense, his Honour Justice Hunt’s - as he then was - decision in Coleman in 1990, that is the standard that has been applied routinely to cases where recklessness, other than murder, is in question.

BELL J: And with the amendments that did away with the definition of malice in section 5, and I think introduced some provision respecting recklessness but did not define the concept, am I right about that?

MS SHEAD: That is correct, your Honour. There was reference in section 5 to reckless indifference but when, I think, in 2008 section 5 and the concept of malice was removed it was not replaced with any other statutory definition of recklessness and the application of his Honour Justice Hunt’s possibility notion of advertence has been applied in New South Wales since that time and the Court of Criminal Appeal in dealing with that issue sets out a series of decisions where that is so. It is accepted by the respondent that in Victoria the position is different and that cases since Crabbe indicate applying the spirit of Crabbe that probability is a required threshold.

BELL J: And the Victorian authorities do not turn on any particular statutory provision, it is an analysis of common law recklessness, is that so?

MS SHEAD: Yes, I believe that is correct, your Honour, yes. In terms of the basis for the distinction between the probability advertence on the one hand for murder and for the lower threshold of possibility for all other cases, that was dealt with in Coleman by Justice Hunt where his Honour indicated that the reason for the higher threshold in murder is that in order to equate the intention required for murder to do so on the basis of an intention to kill or an intention to inflict grievous bodily harm, that the recklessness intention to the level of probability must be so to bring those three concepts into line from a moral culpability point of view, whereas his Honour said that for the lesser crimes, as a matter of commonsense and logic, that the lower threshold was available.

Excuse me for just a moment. There is a second concept and it is referred to in Boughey of the difference between the competing considerations and that is that murder has the alternative of manslaughter and that probability attaches to murder and possibility, in terms of an unlawful and dangerous act, attaches to the manslaughter alternative. Of course, the other charges, albeit some do have statutory alternatives, the reason for the different advertence threshold levels can be explained in that way.

Your Honours, we submit that the Court of Criminal Appeal applied principles well settled at the time that have no continuing relevance in relation to the first ground to the current offence and the interests of justice either generally or in this particular case do not require the grant of special leave. Those are our submissions.

BELL J: Thank you. Yes, we do not need to hear further from you, Mr James. There will be a grant of special leave in this matter on each of the proposed grounds. The estimate, Mr James?

MR JAMES: Half day plus, if your Honour please.

BELL J: Yes. Ms Shead?

MS SHEAD: We agree, your Honour.

BELL J: Yes, very well. As indicated, special leave to appeal is granted and if your instructors would collect the directions from the Registry and comply with them – there has been some slight adjustment to take account of the Christmas holiday break.

AT 11.13 AM THE MATTER WAS CONCLUDED