Dean v The Queen [2016] HCATrans 278 (16 November 2016)

Last Updated: 22 November 2016

[2016] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S118 of 2016

B e t w e e n -

ROGER KINGSLEY DEAN

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 11.13 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MR D.P. BARROW. (instructed by Legal Aid NSW)

MS K.N. SHEAD, SC: May it please the Court, I appear with my learned friend, MS N.L. WILLIAMS, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Thank you, Ms Shead.

MR GAME: We are also out of time. We need an extension of time. There is an affidavit at page 104 of the application book.

BELL J: Any objection, Ms Shead?

MS SHEAD: No, your Honour.

BELL J: Yes, very well.

MR GAME: Thank you, your Honours. Could I begin by taking you to page 119 of the application book which has the relevant statutory provisions in it? Now, one sees section 61 of the Crimes (Sentencing Procedure) Act first. Now, the focus we say in respect of that issue; first of all, it is a mandatory provision and it is mandatory about how you get to life imprisonment, life meaning life, and the question is about the level of moral culpability or blameworthiness, but everything that is relevant to the question of murder is taken into account at that point.

There is no second question under section 21(1). It is all there. So, for example, say you had a case like Milat and a plea of guilty, then the plea would not count for anything, but you might have a case that was on the margins where the culpability was very high but not so high, so that the section 61 question brings everything to play but you are asking yourself whether a life sentence is mandated. So, nothing is excluded from consideration and that is not the approach taken in this case or the line of cases which have kind of erroneously fallen into line with a case called Bell which was about the reverse which was how you get out of getting a life sentence.

So, there is a mistake when one says section 61(3) and the mistake is very clear in the case of Knight which I will come to in a moment. Section 61(3) is not the thing where you then go on to, as it were, consider subjective circumstances. It is just telling you that the two sections have to sit alongside each other and that that discretion is preserved. That is all it is doing. So, there has been – and the Court of Criminal Appeal in this case regarded themselves as obliged to engage in two-stage sentencing because of section 61(1) and because of section 21(1), picked up in section 61(3).

So, that is the first thing. Well, it is actually the first and second. The first is about blameworthiness and moral culpability. Secondly, as I said, all factors, all so-called subjective factors, are taken into account. Thirdly, there is no second stage in section 21(1), and fourthly, if you are not satisfied about section 61, you cannot get to a life sentence by any other means. Now, the way that the court dealt with that in Harris was to say, you can get there by other means but the test is going to be the same.

Our position is, there is no other way and the section 61(1) question is the only question and, as I say, the way that this problem has been avoided, as it were, is to say, well, common law will get you there anyway, but if one looks at this historically, these sections are the sections that deal with when you get a life sentence. So, now, if I come back to what happened in this case, can I just take – shall I stop?

BELL J: Yes, I am just wondering whether that is right, Mr Game. For my own part, I have some difficulty seeing the circumstances in which a judge having concluded that the requirements of 61 are met, would ever find it open to then go to 21 and nonetheless impose something less than life.

MR GAME: Yes.

BELL J: The possibility is there but it is rather difficult to see how one might arrive at it. I am just not sure whether the reverse is right in the sense that a person for whom there was simply no mitigation arising from any subjective circumstance at all, who had committed a killing, or more than one killing, for which he or she stood to be sentenced, might attract a maximum sentence, a matter falling within a broad category of worst case and there being nothing to mitigate. But in a sense, I mean, some of this is a bit - - -

MR GAME: Well, that is a very different – no, it does matter. I will just explain to your Honour why it matters.

BELL J: All right, explain how it does.

MR GAME: If you just go back to Knight.

BELL J: Yes.

MR GAME: Page 76, because what has happened is the questions have got, we say, look, if you go through the exercise in section – in any case where you are looking at the level of objective seriousness or blameworthiness and you are not able to get to it through section 61, it is very difficult to see how you could get there in – I mean, I see your Honour’s point about it but - - -

BELL J: Very difficult on either view, is it not?

MR GAME: Yes, but can I just take you to what happens? So, we say the whole process - - -

BELL J: My point, Mr Game, was: difficult to see how one is in 61 and yet gets something less than life, just as it may be difficult to see how applying common law principles, one might get life without answering the description of 61.

MR GAME: Maybe, your Honour, but when you are looking whether you get a life sentence under section 61(1), as I said, no factor is excluded from consideration. That is the critical point.

BELL J: Yes.

MR GAME: Now, if one looks at what has happened at page 76 and what we see at 76 and 77 and you see the court at page 83, 95, actually thought that this two-stage sentencing was mandated by the section 61 and section 63, 61(1) and 60, and that is just, in my submission, plain wrong.

NETTLE J: But it was not the view of the Court of Criminal Appeal in this case.

MR GAME: Yes, it is. The Court of Criminal Appeal in this case thought they were mandated to do it, in paragraph 95 and following. So, that is what they held, that two-stage sentencing is appropriate and what was done by this judge in this case was conventional in those terms. But, if we go back to Knight at paragraph 71 and page 77, one sees that when one gets to the sixth dot point, the whole of this question is about section 61(1) and yet the questions are being asked in terms of common law questions about worst cases, objective seriousness. We see at the top of 77; the two stages are (1), does it fall “within the worse class of case”, there is talk about objective gravity, and then to see:

whether the subjective circumstances of the offender require a lesser sentence –

Well, if you go down that road, you are going to end up with the wrong way of approaching section 61(1), and it is not about objective gravity per se. It is about culpability and that may be different. So, we say, that by the time you get to Knight, the exercise has clearly gone wrong. Now, if I go back to what happened in this case, we see the heading at page 32:

The Objective Gravity of the Offending

Now, the objective gravity of the offending may be a different question than the question of blameworthiness. For example, the first thing mentioned is the number of victims. Now, number of victims is relevant to blameworthiness in this context; in the context of a measure of the recklessness.

BELL J: Yes.

MR GAME: But not per se as, shall I say, a descriptor of blameworthiness and it is different. But then in paragraph 49, we see a clear error in terms of the way in this question is addressed, which is that pulled out of the question of objective seriousness is moral culpability and that is what her Honour was saying. Now, that is the very question that has to be determined.

Now, what has happened here is this: this and a series of Court of Criminal Appeal cases involve a misreading of Muldrock which is about a section that talks about objective seriousness in a statute of another kind and then the court has actually excluded factors of culpability in determining objective seriousness by misreading Muldrock.

BELL J: Section 54, I think it is.

MR GAME: Yes, it is completely different. I mean, it has got nothing to do with this.

BELL J: It makes quite clear.

MR GAME: Yes. So, when you get to paragraph 49, and the Court of Criminal Appeal said that when it came to how they dealt with it, her Honour was just saying these things, such as the level of recklessness, the personality disorder were not that important, but paragraph 49 is telling you that the court is taking the wrong approach to the issue raised by section 61(1). So then, then motive is allowed to come back in somehow. Then we get to this question of recklessness at paragraph 58. Now, recklessness is only being considered here because it is the mental element and we are told at 58, fourth line that:

That is one factor among many.

Now, the measure of the recklessness in this case is absolutely crucial, and I will come to another aspect of the error that is made by the sentencing judge. Then so we go through, paragraph 64, although moral culpability has been excluded, 64 is actually one of the things that would inform moral culpability. Then you get to 68 and you see this. It is said:

the objective gravity of each offence is informed by the objective gravity of the combination of offences.

Well, cases like Adanguidi and Baker and Garforth, they are about people who go on sprees and so that the second one informs the third - - -

BELL J: Nonetheless - - -

MR GAME: Nonetheless, no, no - - -

BELL J: - - - it might be accepted that the advertence to the possibility of - - -

MR GAME: I do not question that - - -

BELL J: - - - multiple deaths of elderly, vulnerable people in a nursing home is of a high order and - - -

MR GAME: I do not question, I do not question that.

BELL J: - - - in essence, Mr Game, is one of your difficulties here that one can deconstruct this sentence and the analytical approach that was adopted but one comes at a point to this conclusion, does one not? Her Honour looked at Dr Diamond’s evidence, bearing on the applicant’s culpability by reason of his narcissistic personality disorder, and concluded that in the scheme of things, this did not reduce his culpability to a great extent.

MR GAME: But, your Honour, we say that the true question never got determined and the matter was determined in a set of stages that precluded it from being properly determined.

BELL J: I understand, Mr Game, but I am raising another matter with you.

MR GAME: No, I understand that you, but - - -

BELL J: The matter I am raising with you, in light of the findings relating to the applicant’s mental state and simply the facts of the offence, interesting as the issues that you raise are, the likelihood, were special leave to be granted, that any different result would ultimately be achieved.

MR GAME: We say that actually an assessment of culpability would bring to light a way of assessing the thing in a quite different way. It would assess it from, shall I say, the bottom up, rather than from saying worst class and then seeing at – this is exactly what happened in this case – seeing at various stages if you can get of it. This really brings to bear this question of what the basis upon which recklessness was pleaded to and then whether or not something more was established than that, which I will come to shortly. But can I just, in my submission, it is not good enough to say, well, it is all there somewhere. This is a - - -

BELL J: That would be doing a disservice to her Honour’s reasoning.

MR GAME: Well, that is what the Court of Criminal Appeal effectively said in dealing with our second part of our third ground. Now, sorry, if I could just, if I then go to paragraph 69, so the offence is described as “worst case” but worst case is not the question under – this is, what her Honour is trying to do is to apply Knight, which is ask whether it falls within a category of worst case.

So, we are now back in the presumptively life sentence situation and we are seeing if we can get ourselves out of it, which is a reversal; it is a full reversal of the process to be engaged in. Then, it remains to consider the offender’s subjective circumstances and his culpability, but that it does not remain to consider anything. That is the first question. That is the only question – when I say “only”, when you look at the whole of section 61. So, this is a process that has gone wrong in a significant way.

I should say, one of my answers to your Honour’s question is, this is an important case that raises questions of principle but one should actually take this case to have a look at it because of the fact that a person for, what was, a person who had never been in any trouble in his life before an act of wanton recklessness of a very high order, has now got a life means life sentence and I am putting to you that this case actually has that character as well, and occasionally this Court takes such cases. So, I am saying, now, and even if the outcome might be - - -

BELL J: Criminal law takes account of consequences and one has here advertence to risk in relation to conceivably rather more than the 11 people who happened - - -

MR GAME: No, I understand that but blameworthiness does not focus on consequences in quite the same way as what one might put in quotation marks as “objective seriousness” and that is wholly elided, in fact, not understood by that judgment. It is said both by the Crown and the Court of Criminal Appeal that this is a conventional way of doing the exercise.

Well, it is quite easy to show that the Courts in case after case after case are going about it in an erroneous way. It is very easily demonstrated that and this case shows it. Now, so then we have headings such as “The Offender’s Subjective Circumstances”. Then at 41, so we have got the fact that he was on his prescription medications at paragraph – that he was affected by prescription medications, but again, that would be something that would feed into the question of recklessness. Now, then, the next heading at the tail end of these reasons is the offenders culpability and we have certain subheadings - - -

BELL J: I am sorry, where are you now?

MR GAME: Page 42, 41 and then I am going to, we see the heading at 43 of “The Offender’s Culpability: Personality Disorder”. Then, where I am going now is to page 47. Now, what we have, whatever one – we see in paragraph 100, it is said – so it is basically Dr Diamond’s evidence on the subject is accepted, but it said, well, this not a case where a person has lost his control to exercise his facilities and then that feeds into paragraph 100. However, what it says is, “in my view”, so his personality disorder, that his decision-making, gave primacy to –

However, in my view, that relatively limiting impairment, particularly when considered against the scale of the offender’s recklessness indifference, the enormity of the harm which resulted and the objective criminality of the offender’s conduct, carries limited weight in reducing the offender’s culpability to any material degree.

But that is again a presumption that works one way and you have to get out of it by reducing and the presumption is operating where you have made this finding about objective seriousness, excluding culpability. That can - - -

NETTLE J: Granted you make a good point but is not that the very exercise through which a judge would go if he or she were undertaking the exercise in the first place, as you say, it should be?

MR GAME: Well, your Honour, but what you would be doing is saying, how do I measure, you would be saying, you would be bringing to bear all of the factors in this case and then you would say - - -

NETTLE J: And they would be what you have described as the objective serious and the subjective considerations which you - - -

MR GAME: Quite.

NETTLE J: - - - would weld together at the one time.

MR GAME: That is right, and you would then say to yourself, look at the culpability; does the blameworthiness rise to such a level that there is no other and those four different things that we see in section 61. But that is not the exercise that has been carried out here because they have now presumed against, so we are trying to get – the way this is structured is, we have got a presumption against and we are trying to get ourselves out of it.

Now, I say that that – sorry, can I just say that? Then if I come to paragraph 101, which is important, so you will have seen in the Court of Criminal Appeal how this all arose because there is a case called Grant that says reckless indifference to human life means a foresight of:

a “real chance” of death –

Now, if we were in the last case, we would be saying that that is wrong, but that is what the case says and the plea was entered on that basis. Now, that does not mean that the Crown could not have set out to establish more, but the judge’s failure to appreciate that there was a significant distinction between a real chance and a probability and Darkan establishes that they are quite different things and what has happened is that her Honour has failed appreciate that the law did not stop at Boughey but that Darkan heavily qualified what was said in Boughey. So that is another mistake that feeds into it, is the failure to appreciate that point. So, then her Honour says:

For the reasons that I have already given in relation to the objective gravity –

That is to say, you are already out of court, back there when I found this was a worst case. So, you then come to paragraph 104, where it is said – now the red light has gone on. Should I – could I just finish, your Honour?

BELL J: Do.

MR GAME: Anyway, sorry. Paragraph 104, now it is as if we go to section 61(3) and consider the second leg of the thing and we say, sorry, that is not going to get you out of it, and what is relied upon is Knight. So we then have an uncertainty about whether or not we are talking about the common law or section 61, but we say this is all section 61. Now, as I say, it is quite easy to demonstrate, and I hope I have, that this judgment is wholly flawed from beginning to end in terms of how Mr Dean’s case has been assessed, and the Court should take this case, in my submission.

BELL J: Yes, Ms Shead.

MS SHEAD: Your Honours, could I start with what might be thought to be quite an important correction in terms of our written submission at page 129 of the application book, the final sentence? The word “not” is omitted from the last sentence of our written submissions.

BELL J: Yes.

MS SHEAD: As much might be implied from the rest of the submissions, your Honours. Ground 1 raises the question of principle as to the correct construction of section 61 and that is set out at page 119 of the application book. In our submission, the words “satisfied that the level of culpability in the commission of the offence” are the important ones. If I could deal with my friend’s overarching submission that this sentencing exercise was beset by so many errors that another conclusion had it been done correctly might have been reached. The respondent’s submission is upon whatever way this sentence was analysed and upon at what stage the findings of Dr Diamond accepted by Justice Latham on sentence, which she was well open to do based upon the evidence, whenever it was that they were considered, the court could have come to no other conclusion than the sentence that was imposed.

Could I clarify with respect to ground 1 that the respondent says that there was no impermissible two-stage process in relation to section 61. That is perhaps clarifying our written submissions to that degree because Knight and the cases that follow on - and the Court of Criminal Appeal deals with this issue – we say that the vice that this Court dealt with in Markarian and Muldrock, where increments and decrements are applied to a particular figure, needs to be seen in contrast to section 61 which looks at the exercise that the court must undertake, and that the way this exercise has been done in New South Wales in cases such as Knight and thereafter is consistent with the provisions in section 61, where satisfaction about the level of culpability in the commission of the offence is the exercise that the court is first directed to when determining if a life sentence is called for, taking into account the community interest in retribution punishment, community protection and deterrence, and determining if those factors can only be met by the imposition of such a sentence.

In our submission, her Honour’s approach was both available and correct as a matter of a particularly statutory process, and the Court of Criminal Appeal in finding that neither Muldrock nor Markarian rendered impermissible her Honour’s exercise - - -

BELL J: Can I just interrupt you to raise this? I am not quite sure how you are putting the matter. Do you accept that in determining whether the level of culpability in the commission of an offence is so extreme that the community’s interest in the purposes of punishment can only be met through the imposition of a sentence of life imprisonment, the Court is necessarily looking not only at the facts of the commission of the offence, but the matters bearing on the mental state of the offender, including here matters that were the subject of Dr Diamond’s report? All of these bear on culpability. That is accepted, is it?

MS SHEAD: Well, certainly as a concept of blameworthiness and moral culpability, it has been long recognised that, for example, a person who was suffering a mental illness to a degree where they did not understand whether their actions were right or wrong, that that can feed into the assessment of culpability at that stage. So, if there was available evidence to a mental illness to that degree where there was the connection with the crime, then perhaps at that stage that could be taken into account, but that was not the case here.

NETTLE J: That is as far as you would go, mental incapacity, incapability of forming the necessary intent or some such thing?

MS SHEAD: Well, that would be one matter that could be included in the level of culpability. It is possible to envisage others.

NETTLE J: But when you look at all those considerations that you bring to bear under the first leg of whether the gravity of the crime is such as to, because of denunciations, et cetera, and punishment and so forth, you would surely have to bring to bear subjective considerations relating to the mentality of the offender, would you not?

MS SHEAD: Yes, and your Honour, it is accepted and her Honour Justice Latham did look at motive, for example, and what was in the applicant’s mind in terms of his motivation for lighting the fires, and that is a matter that was particular to his circumstances, and that was taken into account in relation to his level of culpability.

NETTLE J: What about his psychological or psychiatric disorder, however it is properly to be described and such as it was, granted that it was limited? Was that not properly to be brought to account at the first level?

MS SHEAD: Well, your Honour, in our submission, even if it was, the fact - - -

NETTLE J: I understand that.

MS SHEAD: Yes.

NETTLE J: But surely it was to be brought to account, was it not, in determining the gravity of the offence, that it was so grave as to mandate life?

MS SHEAD: Well, your Honour, if it can have no impact on the blameworthiness of the level – or the level of culpability, how could it be brought to bear in relation to that particular exercise?

NETTLE J: Does it not bear on blameworthiness?

MS SHEAD: Well, only if there is evidence upon which that conclusion can be reached, and that was not the case here, your Honour.

NETTLE J: Yes, I see. It was so insignificant as not to affect the blameworthiness of the crime?

MS SHEAD: Correct, that is the finding that her Honour made, and the same applied to the second complaint in relation to the use of drugs and the way that operated on the mind of the applicant at the time. The evidence was not sufficient to raise in her Honour’s mind any concern that it operated so as to reduce his blameworthiness for acting in the way that he did.

NETTLE J: What do you say about Mr Game’s point that, had you not started with the presumption of life imprisonment and then tried to back factors out to lower it, you might have come to a different result at the first level?

MS SHEAD: Well, your Honour, we say, taking into account the evidence in this case, that no matter which process of analysis was brought to bear, that no other conclusion could have been reached, even if the most favourable approach to all subjective features were imported into the first stage of the section 61 exercise.

BELL J: What do you say to Mr Game’s contention that in light of the provisions of section 61, that is the only route to the imposition of a life sentence for the offence of murder in New South Wales and that the common law has been effectively displaced by the provision?

MS SHEAD: Your Honour, at first instance Justice Latham indicated that she would have imposed the same sentence as a matter of common law and the Court of Criminal Appeal endorsed that approach, and section 61 embraces concepts to do with sentencing and common law issues but, in our submission, a common law sentence taking into account everything, as is the requirement, is a basis that still permits in our jurisdiction the imposition of a life sentence. That is the conclusion of the Court of Criminal Appeal and we say the correct one.

In relation to ground 1, your Honours, we say the ultimate question is whether each of the relevant matters was brought to bear in the instinctive synthesis of the sentencing exercise and, in our submission, the Court of Criminal Appeal was right to find that they were. The sentence that was imposed reflected the particular circumstances of this singular and extreme case and no general question warranting the grant of leave is present here.

In relation to ground 2, there are two aspects to the ground and the first is I think – we have dealt with this already, your Honours, in terms of the applicant’s moral culpability when looking at the objective gravity. Our submission is that when considering recklessness as the basis of liability for the murder in this case, the contention is her Honour erred in concluding there was no relevant distinction between the foresight of the real chance of death or the probability of death or the probable result, were the two phrases employed. At first instance, her Honour expressly said that the mental element played an important role in assessing the objective gravity of the offence and referred in that respect to motive and recklessness and referred repeatedly throughout the judgment to the significance of the mental element, being recklessness rather than an intent to kill or cause grievous bodily harm.

When looking at this issue, the Court of Criminal Appeal found that this asserted error placed too much weight upon the structure and the sequence of reasons and the reasons should be read as a whole, and we embrace that, your Honours, because looking at the placement of headings and passing sections of paragraphs, in our submission, reading her Honour’s judgment as a whole, as the Court of Criminal Appeal did, emphasises that the instinctive synthesis approach was complete.

In relation to the second aspect, the contention is that her Honour erred in concluding that there was no distinction between the real chance of death or the probability of death. There is also a second aspect to this that there was an error in concluding there was no relevant distinction between mental states that lay at a different point on a gradation between blameworthiness or culpability. It is asserted that a real chance is a lower level of culpability than probability, or more probability than not.

Her Honour made the point that recklessness is less serious as a matter of general principle than an intention to kill or inflict grievous bodily harm and that such a mental state may be less serious than the specific intent, but noted appropriately that the case here, the individual case depended on all of the circumstances and, when her Honour looked at what had occurred during the events that the applicant admitted, that the degree of moral culpability was so high that her Honour gave it the characterisation she did and then imposed inevitably, in our submission, the life sentence.

In our submission, Justice Latham was required to take into account all relevant matters that bore on the applicant’s foresight and she did that and made specific and detailed findings about the applicant’s knowledge and foresight when he started the fires, and those findings reflected the singular nature of this case in that the applicant was responsible for the care and safety of the residents, knowing that they were vulnerable, lighting the two fires as he did deliberately and purposefully. The question of the difference between the real chance of death and the probability of death in those circumstances as a matter of abstract is of little relevance because her Honour made specific findings about the applicant’s knowledge and foresight when he started those fires.

In our submission, the Court of Criminal Appeal was correct to find that Justice Latham did not err in assessing the applicant’s culpability by reference to his having foreseen that there was a real chance of a number of deaths when he lit the fires. This ground does not give rise to a question of law of general importance and no error, in our submission, is disclosed. Those are our submissions.

BELL J: Thank you. Yes, Mr Game.

MR GAME: Your Honours, the Crown spoke of determining culpability first. Again, that is two-stage sentencing and does not sit with section 61(1), but second, her Honour did not determine culpability. She excluded culpability at the first stage. That is apparent from paragraph 49 that I took you to and it is pretty hard to save the reasons from that point because every time culpability comes in, which I took you to, it is does this get you out of the life sentence that you have already qualified for? Now, when one looks at a case – sorry, the other thing is this. The Crown is trying to exclude the issues of mental state to the determination of culpability, as did her Honour. It is actually – this is a live issue because they are only conceding motive and – they are not conceding the important point.

BELL J: Well, I am not sure. At paragraph 100 on page 47, her Honour does appear to have given some weight to the narcissistic personality disorder as bearing on questions of the applicant’s ability to control his emotions and his decision-making. Now - - -

MR GAME: I would – I am interrupting you, sorry.

BELL J: Well, the point that I am raising with you, Mr Game is that, contrary to a line of authority to do with the occasions when some level of mental impairment bears on culpability, she was not looking at satisfaction of a causal relationship. It seems to be something less than that.

MR GAME: But your Honour, paragraph 100 is deeply flawed, and the reason is this.

BELL J: Well, I understand that. We do not need to go through - - -

MR GAME: Well, could I just say one thing? When you say against the scale of the reckless indifference, it is not against the – that is the very thing that you are supposed to be assessing. It sits at the heart of these reasons, your Honour.

BELL J: It really is a question of how one expresses the matter with which her Honour is at paragraph 100 directing her attention, and that is what do I make of the fact that this is a person with a personality structure that finds itself somewhere in DSM-V and that I accept makes - compromises to some extent his capacity to control his emotions and his decision-making to the extent that his decision-making is inclined to give primacy to his own needs.

MR GAME: Yes, but - - -

BELL J: Now, that feeds into an assessment of the culpability and it is really clear in the succeeding sentence.

MR GAME: Yes, but you cannot say you are very reckless here and then over here consider your mental state with respect to whether or not that reduces this very reckless finding you have done there when you are assessing that very thing. In the very next paragraph, her Honour says it is of no importance the distinction between real chance and foresight of a probability, yet that is the very thing that defines the distinction between murder and manslaughter. So we say that a question of principle clearly arises and that you should take this case.

BELL J: Yes, thank you.

We would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal in determining this matter. Nonetheless, we are of the opinion that if special leave to appeal were granted there would be no prospects that the appeal would be successful and for that reason special leave is refused.

The Court will adjourn to reconstitute.

AT 11.53 AM THE MATTER WAS CONCLUDED