O'Connor v The Queen [2016] HCATrans 29 (12 February 2016)

Last Updated: 17 February 2016

[2016] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S195 of 2015

B e t w e e n -

CALEB JAMES O’CONNOR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2016, AT 10.45 AM

Copyright in the High Court of Australia

MR R.F. SUTHERLAND, SC: May it please your Honours, I appear with my learned friend, MR.A. BARRIE, for the applicant. (instructed by George Sten & Co)

MR J.H. PICKERING, SC: I appear for the respondent, your Honours. (instructed by Director of Public Prosecutions (NSW))

BELL J: Yes, Mr Sutherland.

MR SUTHERLAND: Your Honours, this Court had the opportunity – and I apologise this was not in the list of authorities – but your Honour Justice Bell and Justice Gageler, in a matter of Dragan Cvetkovic back in 2013, were invited to grant special leave in relation to a man who had self-inflicted stab wounds and in accordance with the New South Wales Court of Criminal Appeal in Christodoulou, your Honours refused special leave, indicating that there was no basis to review that decision. The present case, we respectfully submit, provides a legitimate opportunity for this Court to consider questions touching upon extra-curial punishment.

KEANE J: Why would that be so when it was distinctly disavowed in the Court of Criminal Appeal?

MR SUTHERLAND: For the reason, we respectfully submit, if one may allude to cases to do with fruit trucks parked in main streets in Adelaide, the question of causation seems to underpin the principles in the various cases. What Justice James had to say in Silvano was effectively there was no evidence as to why Silvano received the vicious attacks and the anal raping and so on that he received.

In the present case – before I touch upon the difference in the way the Court of Criminal Appeal viewed the outcome and the way the judge at first instance did – one had within about a week of the man being convicted of the offences for which he had been tried, a vicious and savage assault that broke half his head – if I can put it in simple terms. His right parietal lobe was fractured through to the base of the skull.

BELL J: Is this a submission that one could draw the inference that it was, by reason of the crime for which he had been convicted, that he was the subject of the assault?

MR SUTHERLAND: It is twofold, Justice Bell. In part that, but - - -

BELL J: Can I, just before we get to that, raise this with you, which is to press you further on the question that Justice Keane asked? Let us assume that there is an issue as to causation that underlies differing views about the significance of non-curial punishment in sentencing.

MR SUTHERLAND: Yes.

BELL J: Why would this be the occasion for this Court to look at it when it was not raised before the primary judge and not relied on in the Court of Criminal Appeal? So, we did not have the benefit of the intermediate court’s consideration of the issue.

MR SUTHERLAND: Your Honour, the only response I can make to that is the self-evident one, that there was a binding decision of the New South Wales Court of Criminal Appeal that the trial counsel took the view that that precluded him from making a submission to that effect. Judge Haesler, despite his experience, did not see any reason to seek to deal with that, although he was suspected, if I might put it in those terms, by the Court of Criminal Appeal of having taken it into account on that basis, in any event. The Court of Criminal Appeal – Mr Barrie conceded in the state of the law in New South Wales that it was not a point open to him.

I acknowledge what your Honour Justice Bell says, that is, that the Court of Criminal Appeal has not turned around and said this is a matter of such principle we are going to reconstitute a Bench of five to re-look at what we had had to say, given the criticism that has come from the Queensland Court of Appeal. But, it is my respectful submission that this case, because of the nature and the severity of the injuries, does provide a suitable vehicle for the Court to look at it.

Can I make the point in relation to the injuries very shortly? If I could take your Honours to page 16 of the application book, your Honours will see at paragraph 46 the description of the physical damage was that there was a:

(a) Fractured right Parietal Lobe extending to the base of the skull,

(b) Right Parietal Extradural Haematoma,

(c) Extradural Haematoma in the anterior portion of the Cranial Fossa, and

(d) Fracture of the right Zygomatic Arch anteriorly to involve the Pterygoid Plate.

So, one gets the picture that there were fractures extending from the top of his skull down to the base of his skull, including the cheekbone, of quite an extensive nature. If one turns to page 21, the learned sentencing judge who – may I make this passing observation with the greatest of respect to the Court of Criminal Appeal – the sentencing judge went into considerable detail regarding the medical material and analysed it. In part, one has to fairly say, because he appears to have been justifying publicly the grant of bail under section 11 and, given the interest of A Current Affair that is probably not surprising, but his Honour did go into a detailed analysis of the kind which was required. But, his Honour’s conclusion, derived in part from the forensic psychology services and their observations, at paragraph 77 noted difficulties that included as follows:

forgetfulness, speech abnormality, weakening on the right side of his body, balance problems and that he is more prone to stress and anxiety, suspicious and more withdrawn because of his injury.

Can I contrast that, your Honours, if you go to page 37 in the application book, Justice Adamson’s paraphrase of the outcome of his – for the attack upon him is at paragraph 26:

By the time of sentence, the respondent had recovered well from his injuries, and was able to engage normally in community life. He had some residual dysphasia –

So, language problems:

which made complex communication difficult and frustrating.

There was a remarkable difference in the conclusions based on the medicine.

BELL J: Well, there was some controversy about this at sentence, as I understand it. There was some video recording tendered - - -

MR SUTHERLAND: I presume that derived from an A Current Affair and they had him riding a motorcycle and walking up some steps. But the learned sentencing judge who viewed it concluded that there were no adverse conclusions that would be drawn from that. There were physical improvements. The point that I seek to make - - -

BELL J: The sentencing judge accepted, I think, that he had recovered reasonably well from these severe injuries - - -

MR SUTHERLAND: He did.

BELL J: - - - and I think the sentencing judge made particular reference to the continuing speech problems which were obviously a major continuing difficulty.

MR SUTHERLAND: Quite so. That is so.

BELL J: One can argue the toss about how people express things but perhaps there is not so much difference between the primary judge’s findings in that regard and her Honour’s summary.

MR SUTHERLAND: The question that really arises, your Honours, is whether or not the proposition that the failure to raise it because of a perception by counsel who were then briefed and instructed that there was a decision which they could not get past provides a bar or a barrier over which this Court should say this is not a suitable vehicle because we do not know what the Court of Criminal Appeal might say. My response to that rhetorical question that I have picked up is that were the Court of Criminal Appeal to have said we note that submission, we do not propose to embark on a special bench or a full bench to deal with it, if the High Court wants to look at it, they can, then one would be back up here.

BELL J: The Court of Criminal Appeal, had a submission been put to them inviting the court to have regard to the injury as a form of non-curial punishment, it would have been open to the court to do so and it would not require to reconvene necessarily with a Bench of five. It might have chosen to do that but it would not have been required to. The fact is counsel did not make that submission. Perhaps, understandably, there was no evidence beyond an inference that might be drawn from the timing of the assault and the sentencing, was there?

MR SUTHERLAND: That is true, your Honour. The reason that I focused in the written submissions on the question of causation is because the proposition that – if I might just put this hypothesis - the proposition that the man who attacked Mr O’Connor with the sandwich press, obviously with very great force, had said “This is because of what you did to my niece” and that that had been overheard and was the subject of evidence.

Let us then put a different hypothesis that he did say that but it was not overheard so that there was simply no evidence as to how it happened or, alternatively, he remained mute as to how it happened. It is my respectful submission that the distinction between those factual hypothetical scenarios is so ephemeral as to go back to the fundamental question of why would one be sufficiently constituted as a matter of causation because that is what the person who attacked him said, but in the other hand the person remained mute.

So, it is for that reason that the decision of Justice McMeekin in Queensland has an intellectual attraction. His Honour – if I could just remind your Honours - in Galeano said at paragraph [104] – this was in the context that the two judges in the majority took the view that the sentence imposed on Mr Galaeno which was 10 years which brought about a statutory non-parole period of, I think, 60 per cent - there was a very substantial difference between giving him 10 years on the top - - -

KEANE J: Eighty.

MR SUTHERLAND: Indeed, sorry - and nine years on the top made a very big difference. But in saying that he would not have upheld the appeal, that was the point of dissent. But in relation to Silvano, his Honour said this - he referred to what Justice James had to say and said:

The argument advanced and accepted was that if this connection was accepted as sufficient to justify amelioration of sentence then any injury suffered whilst on remand in prison, such as an accidental falling or tripping, must have the same consequence.

[105] I make two observations. The first is that I am not convinced that there is merit in that distinction. Given that Silvano complained of a brutal anal rape by a fellow prisoner in the shower block and an assault by his cell mate causing partial loss of sight I would have thought that the connection was much more than just being in a certain place at a certain time - the injuries were a direct result of the State requiring that a person on remand live in extremely close proximity to violent criminals, obviously without sufficient protection, thereby substantially and materially increasing the risk of precisely such events.

Just pausing there, that is picking up some of the language that has fallen from this Court in historical, normally common law matters touching upon some of the debate such as in March v Stramare and the discussion about “but for”, prevailing or not prevailing, the distinction between the then Chief Justice Sir Anthony Mason, Justice Deane and the approach taken by Justice McHugh.

I do no more than allude to it but to make the point that the causal connection between the fact that the man is bail refused for serious offences and then is assaulted violently with such drastic ramifications is sufficient, in my submission, to establish causation and to raise a very serious question as to whether the observations of Justice James, which have prevailed in New South Wales, should continue to so prevail.

Can I make this passing further observation on that point? There have been decisions – I think there was a decision of Justice McCallum which is not on our list of authorities but it is a first instance decision where there was an available inference that the reason the person was attacked was because the sexual assault that he had committed was against a Muslim woman and the inference was drawn that the retribution was because of that fact. There was no direct evidence of the fact so that the court, in that particular instance, was swayed, as it were, to fit in with Silvano – even though, on a strict view of things, it might be that the evidence was somewhat short of a gallop, if I can use a colloquial description for it.

There are other cases in respect of which judges appear to have given – I pause just to use this term, but I will – lip service – to acknowledging causation within Silvano where, arguably, it is really the fact that the person was incarcerated.

Your Honours, I have touched on, in the written submissions, the proposition that the interests of justice and the administration of justice is provoked and the question is provoked by virtue of a 275 per cent increase to this man’s non-parole period. It would not stand alone. I would make that concession. But it certainly was part of the question that was raised in the first place as to how somebody with a non-parole period of 3 years and 10 months ended up with 10 years and 6 months as his time to actually be served and there are several reasons in addition to the principle point.

One is that the Court of Criminal Appeal effectively took the view that his Honour had unjustly allowed for Christmas. When one actually reads what his Honour had to say he said, “I have done all the calculations and my view is that two years more is what is required” and he was sentencing in December and that led to a result in December. It had the concomitant effect that he would be released in December. So that was a point that the Court of Criminal Appeal formed an adverse view, in my submission, unjustly.

The second aspect was that his Honour the learned trial judge and sentencing judge had, in my respectful submission, a raft of reasons to justify finding special circumstances and that was almost discursively dismissed. In the Court of Criminal Appeal Justice Adamson simply said, “I am not persuaded there are special circumstances” so that he got the statutory ratio of 75 per cent. So this young man has ended up, despite the heinous nature of his crimes, with an almost threefold increase on his non-parole period in circumstances that ought attract the attention of this Court. But the point of principle is the one that I have principally addressed.

KEANE J: It is not really surprising, though, that there was such an increase given that the importance to the primary judge, sentencing judge, of the view that he was really sentencing a different man from the person who had committed the crime, given what was said by Justice Adamson at page 51 of the record, in paragraphs 76 to 78. His Honour took the view that that view was simply not available on the evidence and his Honour

gives his reasons for that view and that being so the basis for the sentencing judge’s extremely lenient sentence was shown to be without substance.

MR SUTHERLAND: One of the bases, I would respectfully - - -

KEANE J: The most important basis, I would suggest.

MR SUTHERLAND: It depends whether one completely discounts the injuries and the ongoing medical problems of this young man. I recall what your Honour Justice Bell had to say earlier in relation to the way it is expressed. It is my submission that the Court of Criminal Appeal gave effectively no weight to the attack upon him and he ended up with a sentence which was comparable as if he had never been attacked and had it not had the sequelae. Those are my submissions. May it please the Court.

BELL J: Thank you, Mr Sutherland. We do not need to hear from you, thank you, Mr Pickering.

In our view, this application is not a suitable occasion to consider the special leave question proposed. Nor do the interests of justice require the grant of special leave. Special leave will be refused.

AT 11.03 AM THE MATTER WAS CONCLUDED