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High Court of Australia Transcripts |
2002] HCATrans 112 
(14 March 2002)
Brisbane No B11 of 2002
B e t w e e n -
WILLIAM JOHN MURRAY
Appellant
and
THE QUEEN
Respondent
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 14 MARCH 2002, AT 11.54 AM
Copyright in the High Court of Australia
MR A.J. RAFTER: May it please the Court, I appear for the appellant. (instructed by Dearden Lawyers)
MS L.J. CLARE: I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))
GAUDRON J: Yes, thank you.
MR RAFTER: Your Honours, could I perhaps begin by explaining the statutory structure so far as it concerns the crime of murder in Queensland. For the most part, it is really just the section numbers that are different, but there is at least one material difference between the Western Australian provisions and the Queensland provisions. One begins, I think, with section 291 which provides that:
It is unlawful to kill any person unless such killing is authorised or justified or excused by law.
Now, of course, the provisions in section 23, which are largely similar to the Western Australian provisions, provide authorisation or justification, perhaps more accurately, or an excuse for a killing. So one does not even get to murder unless the killing is an unlawful killing, in my respectful submission.
The term "killing" is defined in section 293 and, unlike Western Australia, there is no crime of wilful murder. What was previously wilful murder and provided for in section 301 of the Queensland Code is now encompassed in section 302(1)(a). That is to say, so far as murder is concerned in Queensland, there is just the one crime of murder. It is defined to include an unlawful killing with the intention of killing or with the intention of causing grievous bodily harm. Tthat is contained in section 302(1)(a). There are, of course, the other provisions which follow.
KIRBY J: Remind me, I did know once, what is the history - Sir Samuel Griffith drew the Code, did he?
MR RAFTER: That is right.
KIRBY J: It was then exported to Tasmania and to Western Australia.
MR RAFTER: That is right.
KIRBY J: There is a Code in the Northern Territory now. Is that similar to the Queensland Code.
MR RAFTER: In the Northern Territory. It is similar, yes. I should have said that section 301 came out in 1971.
KIRBY J: Do you know about - there is a move that has been going on in the Standing Committee of Attorneys-General and I think it is reflected in the Commonwealth Crimes Act now which is called a Code now. Has that picked up with the general principles or is it different?
MR RAFTER: There is a Commonwealth Code. It is on general principles.
KIRBY J: But it is not Sir Samuel Griffith's Code?
MR RAFTER: It is not, no, it is different.
KIRBY J: I see, all right. As usual in Australia, we have gone our different ways.
MR RAFTER: That is right. Before the Court, unlike the DPP for Western Australia, the Queensland Director of Public Prosecutions argues that section 23(1A) has limited scope in a case like this. Now, it is necessary to - - -
GUMMOW J: Now has anyone ever - do Queenslanders ever looked at what happened to Sir James Fitzjames Stephen's Code in India?
MR RAFTER: Not often, your Honour.
GUMMOW J: Ever?
MR RAFTER: Well, I cannot I have myself.
GUMMOW J: It has been applying in India for 125 years now.
KIRBY J: And Malaysia, Singapore and several African countries.
GUMMOW J: That is right, and this question of accident and so on, section 23, I would have thought, was something that may have received attention but we just look inward, do we?
MR RAFTER: There is no requirement to look outward, in my respectful submission, when - - -
GUMMOW J: There is on us.
MR RAFTER: - - - when the question that arises in this case is dealt with in authorities of this Court and the Queensland Court of Appeal.
KIRBY J: Yes, but we have to get to those authorities for ourselves and it is often helpful to look at overseas analogies of appropriate courts.
MR RAFTER: It of course can be. That has not been done in this particular case.
GUMMOW J: Section 23 comes straight out of Stephen's text, does it?
MR RAFTER: Yes, it does. The position adopted by the respondent in this particular case before this Court is at odds with the position that was taken before the Court of Appeal. In Mr Justice McPherson's judgment at page 271 at about line 5 his Honour records that:
on appeal it was conceded by the Crown that the summing up was inadequate or defective in that particular -
that is by the failure to direct in accordance with section 23(1)(a) -
but it was submitted that the conviction should be allowed to stand -
by application of the proviso. So the Director of Public Prosecutions before this Court takes a different stance. I will come to deal with that presently.
The direction which it is contended ought to have been given in this particular case was not given or requested at trial, and that is perhaps a little surprising since the major authority from Queensland dealing with the point was referred to before the trial judge. Could I perhaps go to the record book at page 190 at the foot of the page. Following the conclusion of the defence case the jury retired at line 45 and the Crown Prosecutor addresses the trial judge and tells her Honour that there is a concession that section 23 - and her Honour interrupts and asks:
The accident part of 23 or the whole of 23?
The prosecutor at the top of the following page, 191, says:
No, the accident part of 23, an event which occurs by accident -
and goes on to say. At about line 8 the prosecutor refers to the then recent decision of the Queensland Court of Appeal in Guise (1998) 101 A Crim R 143. I will just go through the ensuing pages just to explain that there was this concession as to the second limb of section 23 and in due course the trial judge did direct the jury in accordance with that particular provision. Her Honour at page 192 about line 40 then said:
I'm just not quite clear what you are saying about section 23, the accident part of 23, whether you are saying I ought to address in relation to that or not.
The prosecutor said, as he had earlier, that he could not see much logic in it:
Simply in Guise's case it appears to be -
that it is required, although one of the judges, Mr Justice Pincus, had said it was not necessary. It then emerges on the following page, 198 - - -
GAUDRON J: Mr Bullock said:
I submit Your Honour should do that -
should address.
MR RAFTER: That is right, but he seems to have had in mind the second limb, which in Queensland is contained in section 23(1)(b). There was no specific discussion of the first aspect which, in the appellant's submission now, was the critical question in the case. It was more a case dealing with (1)(a) than (1)(b).
HAYNE J: You should perhaps continue this, but at some point I will be assisted if you tell me what you say the issue - because it seems to have been a single issue trial - for the jury was. Perhaps if you go on with this.
MR RAFTER: I will come back to that. It emerged then at about line 45 on page 193 that the defence counsel had not read the decision of Guise properly and he said he would be seeking the judge's indulgence to read the case overnight and if he wanted to draw anything to the judge's attention, then he would do so. The court adjourned at 4.26 that day, the third day of the trial, and the following morning the court resumed with the jury present and the defence counsel commenced his address to the jury and no further issue was raised.
If I can pass on to the decision of the Queensland Court of Appeal in Guise which is pertinent to the issue presently arising, there are couple of things I need to say before I go through it. The first is that the headnote is a little misleading.
One sees in the headnote 1 that certain findings or conclusions were attributed to Mr Justice Pincus and Mr Justice Lee. Now, in fact there were two judgments written, one by Mr Justice Pincus and he certainly did say, as headnote 3 indicates, that it is unnecessary for the judge to have referred to section 23 of the Code as it was irrelevant. That is correct that Mr Justice Pincus said that. The difficulty with the headnote though is that Mr Justice Ambrose said differently. He said it did arise by application of this Court's decision in Griffiths and Mr Justice Lee, the third member of the Court, actually agreed with Mr Justice Ambrose, not with Mr Justice Pincus as the headnote indicates.
So the judgment that is most pertinent to the circumstances of the case is Mr Justice Ambrose, and I will go to that immediately. It actually commences at the foot of 146. Now, this was a case which - as the court found, the case was quite overwhelming, quite strong. The appellant's account had improbabilities and encountered such difficulties. Nevertheless, the court decided by different means - that is Mr Justice Pincus arrived at his conclusion to order a new trial by different means, but the other two judges ordering a new trial found that the failure to have directed in accordance with section 23 was such an omission that a new trial ought to be ordered.
HAYNE J: How did accident arise in this case of Guise?
MR RAFTER: It was because on the appellant's account she was not conscious of having discharged the actual gun. I will perhaps firstly go to her version which is set out at page 147 in Mr Justice Ambrose's decision. She shot her mother. She had animosity towards her mother. She visited her. About the fourth paragraph down on 147, she said:
She said that just prior to the shooting she had a pistol hidden down inside her pants. The pistol according to her at that stage was cocked. She said that she had never fired the pistol but had been told by the person who had supplied it to her some months earlier how to fire it. She gave the improbable explanation that she had acquired the pistol to protect herself against three people, one of whom was her mother.
The shooting occurred when the appellant visited a house where she knew her mother was staying, with a view to obtaining information from her about what had been said in the course of custody proceedings relating to her two young brothers. She said that she was angry and upset.
She gave this evidence which was critical to the question of accident:
"I just became angry and I can't remember it happening but - my arm just swung out and the gun went off and Nanna...."
When asked what she was intending to do, she said "just to scare her". She denied intending to actually fire a bullet into her mother or to kill her or to seriously injure her -
She denied aiming the weapon at the mother. She said her arm just came out.
HAYNE J: And she said she did not know the gun was loaded.
MR RAFTER: That is right.
KIRBY J: There is a song about that.
MR RAFTER: Sorry. She did cock it.
HAYNE J: Come down a few lines:
She said she did not know that the pistol was loaded - - -
MR RAFTER: That is right. Although found to be unpersuasive and improbable in respects, the judges nevertheless applied this Court's decision in Griffiths. If one goes to 149, your Honours will see that Mr Justice Ambrose sets out the salient passages from this Court's decision in Griffiths [1994] HCA 55; (1994) 69 ALJR 77. The relevant passages in Griffiths, set out by Mr Justice Ambrose, are at 78 of Griffiths and 149, about a third of the way down the page in the Australian Criminal Report of the decision in Guise. The relevant passages are contained in the joint judgment of Justices Brennan, Dawson and your Honour, Justice Gaudron. It was put this way:
"If the appellant in fact fired the bullet which entered the body of John Apps and thereby caused his death the appellant's criminal responsibility for manslaughter depended on proof that -
(i) the act of firing the bullet was willed or voluntary, that is, the act was not done independently of the exercise of the appellant's will (s 23, first limb)
now paragraph (1)(a)?
and the death of the deceased did not occur by accident, that is, it was a foreseen or foreseeable result of that act (s 23 second limb) -
now paragraph (1)(b) of section 23. Now, admittedly Griffiths was a manslaughter case, so one of the questions that arises here is whether that approach is also required in a murder case and the appellant's submission is that there is no reason why it is not appropriate to proceed in exactly the same fashion in a murder case, only the additional ingredient of the element of intention will be required to be found before there can be a conviction.
The passage from Griffiths continued, at the foot of the page:
A plea of not guilty puts all elements in the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be.
Then at the foot of 150, the second last paragraph, Mr Justice Ambrose said:
On the facts of the present case there is an abundance of evidence from which the jury could be satisfied that the appellant was pointing the gun towards her mother's chest while she stood within a room in the house more than one metre from her when it discharged and the expert evidence showed that to discharge the pistol it must have been cocked and a significant pressure applied to the trigger whilst simultaneously a safety device on the back of the handle of the pistol was deactivated.
One might think that the strength of the evidence that the accused shot her mother and that it was her willed and voluntary act was almost overwhelming.
Then on page 151:
One of the critical issues in the trial was whether the accused had unlawfully killed her mother. The obligation was on the Crown to prove beyond reasonable doubt that neither limb of section 23 of the Criminal Code applied.
There was no discussion of the proviso. The court must have regarded the omission as fundamental and decided - - -
HAYNE J: Before we depart from this case, there were, it seems to me, two relevant issues in Guise's Case: one, did she intend to fire a shot at all, that is, "I did not know the gun was loaded".
MR RAFTER: Yes.
HAYNE J: Two, what was her intent, if it be decided that she intended to fire a shot, did she intend to kill or do grievous bodily harm? I intended only to scare her. Did you aim the gun at her? No, my arm just came out. But it is a two-ssue case.
MR RAFTER: Yes. That is right.
HAYNE J: The reason for my pausing on this is that the Court of Criminal Appeal has treated the present case as a one-issue case and it may be that at some point you may have to persuade us that in truth there was more than a single issue.
MR RAFTER: Can I answer that in this fashion, your Honour, that the finding of intention to kill, that is implicit in the verdict of the jury in this case and in Guise's Case, could have easily, if this particular decision in Murray is correct, have had the same outcome in Guise.
HAYNE J: No, for this reason: if the issue in this case was truly the single issue, did the gun go off accidentally or intentionally, then it may be, I just do not know, that the direction was sufficient, and that would truly be a single issue case if the only issue was accidental or non-accidental discharge of the weapon, their being no evidentiary basis for the accused - I am inverting an onus of proof; allow me to do it, simply to make the point - there being no case by the accused that, "Well I only intended to fire to scare him."
MR RAFTER: Well, he did not say he fired to scare him; he produced the gun to scare him, to ask him to leave. The weapon, he said, discharged without any will on his part; he did not pull the trigger, consciously, although pressure must have been applied to it, and the theory advanced by the defence was when he was struck by an object to the head by some reflex action the trigger must have received pressure. It was a gun with lighter than acceptable trigger pressure on one of the barrels, it must have gone off then.
HAYNE J: But if he intended to fire the weapon, was there any separate issue about his intent to kill or do GBH? None here, was there? If he intended to shoot, he intended to kill this man.
MR RAFTER: If he intended to shoot and to kill, then he would be guilty of murder but, in my respectful submission, there were two questions, the first one - - -
HAYNE J: I can understand there can be two questions. I am not challenging that. What I am anxious to know at some point of your submissions is whether in fact at this trial there were two questions.
MR RAFTER: Yes. Well, my answer to your Honour's question is that similarly to the case of Guise there was firstly an issue as to whether the discharge was a result of a willed act. The second question was, assuming the first point against him, did he then have the intention to kill or do grievous bodily harm? The case perhaps could have been blurred by the admission into evidence of the evidence - and this is not complained about and it was not argued in the Court of Appeal, but there was the body of evidence about the animosity he harboured for a number of years as a result of the break-in at his house.
HAYNE J: In the hands of the uninformed third party, liable to very cruel misconstruction.
MR RAFTER: Yes, and the threats that he had made which included a threat to kill. The evidence was admitted for the purpose of showing the nature of the relationship between the deceased and the appellant. It was not admitted for the purpose of establishing a motive. There were no substantial directions about all of that, but because of the threats, there was a risk that the jury might say, "Well, he had threatened to kill him and he had said that he was going to", and they might reason in that fashion to conclude there was an intention to kill at the relevant time without focusing on the preliminary question, as I would argue, "Was the act a willed act?", because although there may be similar issues that arise, there are really two distinct questions in this particular case.
The first was the discharge of the weapon - and that is the relevant act, in my respectful submission, was the discharge of the weapon a willed act? At that time did he have the relevant intention? The other question that arose which was put to the jury was the second part of section 23, that contained in (1)(b), was it an event which occurred by accident? There was some discussion about that earlier during my learned friend Ms Braddock's submissions to the Court.
The way this case was put to the jury was that the relevant event was the death of the deceased, rather than the entry of the bullet into the body. The summing up on that aspect is contained at page 234. The summing up really followed a model direction that had been formulated by the Queensland Court of Appeal in R v Taiters; Ex parte The Attorney-General [1996] QCA 232; [1997] 1 Qd R 333. That decision had applied this Court's decision in R v Van Den Bemd (1994) 179 CLR 137. So that is the way the second limb of section 23 is treated in Queensland, but the relevant - - -
GUMMOW J: What is the draftsman getting at in having (a) and (b)?
MR RAFTER: As it would apply to this particular case, the relevant act would be the discharge of the weapon and the relevant event is the consequence of a willed act and in this particular case that is the death.
GUMMOW J: Why is (b) not concerned with matters that do not fall within (a)?
MR RAFTER: One would ordinarily expect that it would deal with matters not covered in (a).
GUMMOW J: There is no discussion in these authorities of the construction of these provisions. For myself, I do not find it very satisfactory. There is just a general assumption of, "Don't worry about that".
GUMMOW J: It is a general assumption of, "don't worry about that".
MR RAFTER: In this particular case, so far as (1)(b) is concerned, it is not a point agitated before the Court because the judge did direct in accordance with it.
GUMMOW J: Exactly.
KIRBY J: Interesting that here again the jury came back with some questions - - -
MR RAFTER: They did.
KIRBY J: At 233. One of them was on intent, and the other was on reasonable doubt. Now, I do not know whether you have read that recent article in the latest part of the Criminal Law Review in England, it is the English one, which says that the studies of juries shows that the matter that they have the greatest difficulty with is the matter on which courts cannot give any assistance, namely, "What does beyond `reasonable doubt' mean?" It is interesting that they ask it here, as they very often do.
MR RAFTER: It is not an uncommon request.
KIRBY J: No. It is the criterion.
MR RAFTER: And the judges are limited in what they can say in response.
KIRBY J: Absolutely.
MR RAFTER: So far as the relevant act is concerned, I have submitted that it is the discharge of the weapon. My submission is that is consistent with the decision of this Court in R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at page 31. In the earlier case of Ugle your Honours have already been taken to passages at page 39. I will not repeat those, because your Honours have heard them read out not long ago. There are some additional passages which reference, I submit, ought to be made.
I go to page 42 at the foot of the page in the joint judgment of the Chief Justice and Justices Brennan and McHugh. In the very last paragraph their Honours say:
The foundation for the inference that an act done by an apparently conscious actor is willed or voluntary can be removed by evidence that the actor was not of sound mind or was insane when the act was done, but there are some cases where an act can be shown to be unwilled when it is done by an actor of sound mind. To take some obvious examples: if the act be a reflex action following a painful stimulus or if it be a spastic movement, an inference that the act was willed or voluntary would not be drawn though the actor be of sound mind when the act is done.
My submission is that is the type of act that is involved in this particular case. A reflex movement causing trigger pressure as a result of a knock to the head by an object thrown by the deceased.
GUMMOW J: The cases - construing is not quite the word - the cases dealing with section 23, are they all cases of homicide of some description?
MR RAFTER: Not all cases dealing with section 23. Many of them are of course, but not all of them.
KIRBY J: What are the others?
MR RAFTER: Grievous bodily harm.
KIRBY J: Yes.
MR RAFTER: Some examples that have been dealt with in Queensland arise from circumstances where an accused person throws another person down the stairs and they suffer some serious injury. Whether or not - - -
KIRBY J: What about culpable driving?
MR RAFTER: It does not often arise in culpable driving but it can do, your Honour, yes, but many of the cases are homicide cases.
GUMMOW J: Section 23 is dealing with a universe of offences.
MR RAFTER: In the Queensland Court of Appeal in the present matter, Mr Justice McPherson placed reliance on extracts from the judgments in this case in R v Mullen [1938] HCA 12; (1938) 59 CLR 124. The principal passage relied upon was that contained in Chief Justice Latham's judgment at 128, where his Honour said:
it is unnecessary to have any recourse to the section in the case of wilful murder, where, by the statutory definition itself, intention is expressly made a necessary element in the offence.
Now, Mullen was obviously before the repeal of section 301, which was the wilful murder provision in Queensland. So it was a case of wilful murder. That perhaps needs to be kept in mind when looking at it.
There were observations also by Mr Justice Dixon at 137 that Mr Justice McPherson relied upon to support the proposition that in a murder case where intention was a specific element of the offence, there was no need to have recourse to section 23.
My submissions about Mullen, essentially, are these, that this Court was dealing with an order from the Queensland Court of Criminal Appeal granting a new trial and the order of this Court was that special leave was refused, although after having heard full argument, of the five members of the court, really, it was only the Chief Justice and Justice Dixon who made observations consistent with the view that Mr Justice McPherson has found. So, the submission is - - -
HAYNE J: But also, their Honours' statements are to be read in light of the issues that may then arise on a retrial. They are not statements of absolute generality, it would seem to me.
MR RAFTER: Yes. Well, that is the submission, that those observations do not constitute binding authority that are going to be universally applicable to all homicide cases where there is an argument about the applicability of section 23.
GUMMOW J: What Sir Owen Dixon says at 136 in the second-last paragraph seems to me, with respect, to be spot on, namely, the Code was drafted at a time before Woolmington.
MR RAFTER: Yes.
GUMMOW J: You cannot find an:
intention to exclude the application of the rule thus established.
That is what it call comes to.
MR RAFTER: So the submission is that Mullen really does not provide an absolute answer to the question that arises in this particular case although it has been applied in at least one other case, R v Fitzgerald (1999) 106 A Crim R 215. My submission is that in this particular case a real issue, just as in Guise, arose as to whether or not the act was a willed act. The omission which was accepted by the prosecution in the court below, in my submission, constituted a fundamental error. I know that language comes from Wilde, but ordinarily that is one of the principal questions that needs to be examined when issues concerning the proviso arise.
GAUDRON J: You are hard pressed to assert a fundamental error in circumstances in which counsel seem to think nothing of it. It is said it seemed to be difficult to run and I think there is some truth in this "difficult to run" with criminal negligence. I do not know if criminal negligence was running around in this case.
MR RAFTER: It was but only so far as the alternative verdict of manslaughter was concerned. It did not - - -
GAUDRON J: Yes.
HAYNE J: How was it running around? On what version of the evidence given could the jury have concluded that the trigger was pulled voluntarily but that it had not been demonstrated beyond reasonable doubt that there was relevant intent to kill or do grievous bodily harm?
MR RAFTER: It perhaps seems an unlikely outcome but it is not necessarily - - -
HAYNE J: That may not be the test, may it, whether it is a likely or unlikely outcome? But was there any available construction of the evidence given at trial that the jury could conclude, "Yes, the man pulled the trigger deliberately and voluntarily but we are not persuaded beyond reasonable doubt that there was a relevant intent"?
MR RAFTER: Well, the way it was put in this particular case emerges from the summing up at the foot of page 234 over on to 235, her Honour explained the requirements for criminal negligence, and the way it was specifically put on page 235, about line 44, her Honour told the jury:
If you accept the accused's version of what happened that night, in whole or in part, you are going to have to evaluate his conduct and decide whether it was conduct such as to amount to criminal negligence.
She explains his version:
that Celap was getting out of the chair, that he was about half-way up when he was getting out of the chair. The accused raised the gun. He knew it was loaded. He says he cannot remember noticing whether it was cocked. The deceased's left hand shot out in a backhand motion.
And so forth, and her Honour continued on the following page. It was an 80-year-old weapon, purchased in 1980 by the appellant.
HAYNE J: But is this part of her Honour's charge predicated upon the jury not having been satisfied beyond reasonable doubt that the trigger was pulled deliberately.
MR RAFTER: Well, her Honour actually said, "if you accept" his evidence, so it seems to have been predicated upon acceptance of it and then the question as to whether or not, despite having accepted it - - -
HAYNE J: There seems to be a bit of difficulty about onus of proof, I would have thought there.
MR RAFTER: Well, this is one of the passages that is relied upon in support of the second ground, but what her Honour, I think, must have been attempting to convey to the jury was this, "If you accept his evidence, well, by that stage you will have got to the position where you will have found him not guilty of murder, because he has sworn that he did not intend to kill the deceased." So having accepted the evidence, then the question arises, could he be found to be criminally negligent in the handling of the weapon. That is what her Honour, I think, must have taken to be attempting to tell the jury.
HAYNE J: And that I can understand, leave aside the burden of proof problem that I see there. That I can understand as a second set of issues that the jury would have to get to if they were not persuaded beyond reasonable doubt that he had pulled the trigger deliberately. But if they have stopped at the point of saying, "I am persuaded beyond reasonable doubt he pulled it deliberately", was there any way in which out of the evidence you could spell a case that left them unpersuaded beyond reasonable doubt that there was the relevant intent to kill or do grievous bodily harm?
MR RAFTER: If one puts the question in that way, "Did he pull the trigger deliberately?", then I suppose that tends to answer both questions.
HAYNE J: Because can I tell you what is informing this so that you may deal with it. I start from Alford v Magee. It is the obligation of the trial judge to identify the issues in the case, and having identified the issues then to tell the jury so much of the law as they need to know, et cetera. Now, if it were right to analyse what happened at this trial as producing a single issue, did he pull the trigger or did he not, that is, did he pull it deliberately or did he not, then maybe one set of conclusions follows about the sufficiency of the charge. But if, as you heard argument in the earlier case, a possible construction of the evidence were that, although pulling the trigger deliberately he did it only to scare, then I see the force of the argument you advance that you needed to address both issues.
MR RAFTER: Yes.
HAYNE J: Now, that is what is informing it and I will be quiet and let you develop your argument, Mr Rafter.
MR RAFTER: Can I immediately respond to that by saying to your Honour, if the case was put to the jury very clearly that it was, did he deliberately pull the trigger contrary to his own sworn evidence and if there were adequate directions on the onus and standard of proof, and at that time intending to kill or do grievous bodily harm to the deceased, that may be an adequate way of dealing with the case, but the trouble with the summing up in this particular case, it was not necessarily put quite as clearly as that. Could I perhaps go to page 230, at about line 20. This is the way the murder charge was put:
Turning to the charge of murder, the Crown has to prove that the accused intended to kill or to do grievous bodily harm. The question is whether he had that intent at the time of the act which caused Celap's death.
At least that passage is capable, in my respectful submission, of conveying to the jury the possibility that he was intending to kill the person, he was perhaps intending to seriously injure him in the alternative at the time of the act. What is the act? That part of the summing up did not focus the jury's attention on the act and if one is looking at "act", it is, in my submission, consistent with this Court's decision in Falconer. So the first thing to decide is: was that a willed act?
CALLINAN J: Pulling the trigger?
MR RAFTER: Pulling the trigger. Was it a reflex action as a result of the striking of his head by an object thrown by the deceased. Those were the questions. So far as the strength of the Crown case is concerned, there were a number of matters that the court below focused upon. One was the injury to the appellant's head which he evidently was not aware of when the police spoke to him initially. My submission is that so far as that is concerned, it is by no means inconceivable that he would be unaware of that injury whether caused by the springing of one of the hammers of the gun, as was the Crown theory, or by being struck by an object thrown by the deceased.
It is a clear inference open from the police officer's evidence that he was unaware that he had the injury. He did have the injury, there is no question about that - the doctor saw it - so he was simply unaware of it. Whether that was caused by one means, on the Crown theory, or another, was really a matter for resolution by the jury, in my respectful submission. The appellant had given evidence that at the time of the discharge of the weapon it was being held at "about waist height". He said that at appeal book page 157.
The trajectory of the discharge was slightly upwards. The pathologist gave evidence at page 7 - I will not read this out - but the entry wounds were 133 centimetres above the heels and the exit wounds 139 centimetres above the heels, so they were slightly upwards. He was in or near to the chair. I will come to the appellant's evidence about that in a short moment. The scenes-of-crime officer who went there and measured, or may have measured, the chair - it is a little bit unclear if one goes to the foot of page 87 and the top of page 88 of the appeal book - he was asked:
Are you able to tell us how high the holes in the wall were above the floor?-- No. The only notes in relation to measurements I took were of any blood stains that I took.
Next question at the top of page 88:
Are you able to say roughly how far from the floor, approximately?
This answer is a little confusing. He said:
The height of the chair was approximately 820 mm - sorry centimetres -
but he was probably right the first time -
and it would have been probably about 20 centimetres down from the top of that, so approximately 600 centimetres, I would say.
So it is all a little hard to follow, but it is possible where he says 600 centimetres he is really referring to millimetres.
If one looks at the photographic exhibits that I understand are before the Court, one can see the holes in the chair itself, and the photographs also show where there was entry into the chest of the deceased. Now, the appellant, as I said, said he had the gun at about waist level. These heights, I submit, are probably consistent with that, particularly if one looks at the photographic exhibits. It was the Crown theory, though, that the injury to his head was produced as a result of the discharge of the weapon when he was sighting it, and one of the hammers striking him. Now, unless he was crouched down or something - and one does not really know - it may be difficult to envisage how he would sight the weapon and fire it at that relatively low height and cause that injury to himself. These matters, I submit, are not having to be resolved in this Court; they demonstrate that the points that arise really are jury questions, provided the jury are properly instructed on all relevant legal issues that arise.
As to the corresponding entry wounds in the chest of the deceased and the exit wounds from his back, and then the holes in the chair and in the wall, I just draw attention - and this was something Mr Justice McPherson placed reliance upon - I draw attention to the appellant's own evidence in cross-examination, because he had said in chief: the deceased was getting up. This was explored in further detail by the Crown Prosecutor in cross-examination at 180 to 181. Commencing at 180, about line 22:
You have said he started to get up from the chair? -
How far up did he get? What was he doing? Tell us? -
Answer:
Well, he sort of twisted over to one side.
Tell us which side? - To the right.
Then he is asked, at about line 35:
What did he do? Did he actually stand up or was he still in the chair? - No, he was - as he was getting up he turned around, twisted around and geez I don't know how far up he was, mate. About - okay, right, about halfway, something like that, and that's when I assume he threw something.
Then he is asked:
Was he actually up on his feet out of the chair? -
Answer:
He was clear of the chair, I would say.
Then the next answer, he said he was "about halfway up".
He was asked further about these matters at 181 about demonstrating how the hand shot out and so forth and just below line 5:
Just demonstrate the backhand throw -
He demonstrated that and gave this answer:
Sitting in the chair, got up and it was that type of action, only he fell.
He fell?-- Yes, he fell. I think he lost balance.
He fell back in the chair?-- Yeah, I think he did. I think he lost balance, you know. I can't talk for him, what happened. It was my idea of what happened then is that he fell over.
So he was actually sort of standing up when he threw this and then he fell over back down?-- Well, he wouldn't be standing right up, but he was partly up, from my recollection of it -
and so forth.
The proposition I am really putting is in answer to Mr Justice McPherson's conclusion that the entry wounds into his chest, the exit wounds from the back and the holes in the chair and wall tend to somehow disprove the appellant's version of events and my respectful submission is that that is not necessarily so, particularly if one looks at that evidence and compares it to the photograph evidence which shows a wound to the left chest, and one does see the holes in the chair are on the right side - that is as if one is sitting in the chair itself. This account that he gave which involved the man getting up and then twisting and falling back into the chair at or about the time that he threw the object is not necessarily inconsistent with the finding of all these holes that the Crown placed reliance upon.
The other matter that was considered to give the Crown case some strength involved the beer bottle which was in the deceased man's right hand. Now, if one looks again at the photographic exhibits one can see that it is in his hand but it is tipped to one side, and in fact there was evidence from one of the police officers on the scene at appeal book page 26 that the bottle had some contents in it which leaked out onto the man's jeans.
On any view of it, if one looks at the position where the bullet holes are in the chair, and on the Crown theory if he was at or about that location as he must have been, he has then slumped to the other side of the chair, still gripping the beer bottle, and some of its contents spilling onto him. So, once again, my submission is, although these were really factual matters for the jury to evaluate, they do not distinctly disprove the defendant's, or the appellant as he is now, account of things.
Similarly, so far as reliance was placed by the Crown on the beer bottle on the floor. There was a beer bottle behind one of his legs and the argument for the Crown was if he had gone through these physical actions one would have expected that to be tipped over. In the photos, if your Honours look at them will see the bottle is tipped over but the ambulance officer, Urquhart, I think his name was, said at page 79 that he thought that he may have disturbed that or one of the ambulance officers may have disturbed that. Nevertheless, my submission is, even if it was in an upright position, assuming that it was, it is not necessarily inconsistent with the appellant's version of events that it remained in an upright position notwithstanding the deceased got up and then fell back down onto the chair. It all depends how these things actually occur as to whether or not that is an improbability about this account. Nevertheless, as one sees in that decision of Guise, improbabilities, implausibilities and so forth, do not necessarily mean that the appellant has not had a trial to which he was entitled.
Generally, with respect to the proviso, the most recent treatment of it has been in this Court in Festa. I will not read out all of the passages in Festa but my submission is that is the most recent treatment of the subject in this particular - - -
KIRBY J: It is a somewhat different case, though, is it not, because it is a case where there were multitudinous circumstantial facts that built up a tremendously powerful case of the prosecution, whereas, this is a matter of what interpretation you put on the case?
MR RAFTER: Yes, that is so. One can easily see why the proviso was applied in Festa (2001) 76 ALJR 291 because the case was principally concerned with admissibility of evidence, although there were some alleged misdirections in the trial judge's summing up to the jury but, despite that, the case was otherwise so strong that the Court applied the proviso. Perhaps if I just give some of the relevant references: your Honour Justice Hayne discussed the proviso at 329, your Honour Justice Kirby at 325, and Justice McHugh had a fairly extensive discussion of the proviso in his judgment as well.
In a murder case, I submit, the Court would ordinarily be reluctant to apply the proviso where there is demonstrated to be a misdirection or a relevant omission. I note that in Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387 at 400, your Honour Justice Kirby said "Appellate courts are always vigilant" concerning the application of the proviso when a person is serving a life sentence for the crime of murder.
KIRBY J: I think I was in dissent in that case.
MR RAFTER: Yes, your Honour was. Although that is a dissenting judgment on the subject of the appeal, those observations, I submit with great respect, are accurate. Could I perhaps move on to the second ground of appeal.
GAUDRON J: Perhaps that might be a convenient time. We will take that at 2.15, thank you, Mr Rafter.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GAUDRON J: Yes, Mr Rafter.
MR RAFTER: Thank you, your Honour. So far as ground b is concerned, I begin by going to the relevant passages of the summing up, firstly at page 228. Now, at the passage beginning at the top of the page and thereafter I feel are conventional directions, but since the summing up needs to be viewed as a whole, I will perhaps go through these. Her Honour tells the jury at the top of 228:
As the two barristers have explained to you, the prosecution, the Crown, has to prove that the accused is guilty. He is presumed to be innocent. He does not have to prove a thing. He can be convicted only if the prosecution establishes that he is guilty of murder or guilty of manslaughter, and I will return to this shortly.
The prosecution has to -
and there is a word omitted there, I think, "do" - sorry, your Honours, I am wrong there -
so prove beyond reasonable doubt. That is the standard of proof and it is a very high standard in a criminal trial. You have to be satisfied beyond reasonable doubt of the guilt of the accused. That expression means exactly what it says. If at the end of the day you have any reasonable doubt about an element or elements of the charge, you must acquit, but if you are not left with any such doubt, you must convict.
And her Honour continues. At the foot of the page at line 50 there is a direction concerning circumstantial evidence and her Honour tells the jury to convict:
on circumstantial evidence alone, it would be necessary not only that the guilt should be a reasonable inference but that it should be the only rational inference that the circumstances would enable you to draw. If there was a reasonable possibility consistent with innocence, then it would be your duty to acquit.
Now, there is an important direction immediately following because her Honour says:
Now, the accused has given evidence. That does not mean that the burden of proof shifted to him. His evidence is simply added to the evidence that was adduced by the prosecution and it is upon the whole of the evidence at the end of the trial that you have to be satisfied beyond reasonable doubt that the prosecution has proved its case before he can be convicted.
Moving to the - - -
KIRBY J: So far so good.
MR RAFTER: So far so good. There is no complaint about these. Your Honour, I am only going through these conventional correct directions to put the impugned directions into their proper context.
At 230, about line 20, her Honour says:
Turning to the charge of murder, the Crown has to prove that the accused intended to kill or to do grievous bodily harm. The question is whether he had that intent at the time of the act which caused Celap's death.
Now, can I interpolate there. Again, no complaint about that direction in the context of this particular ground of appeal, but - - -
KIRBY J: Is there a power under the Code that one might describe as the merciful verdict of manslaughter, that a jury can bring back a verdict of manslaughter at any time in a murder trial?
MR RAFTER: There is no provision in the Code recognising that, but in Queensland the jury are sometimes told but not very often they can bring in a verdict at any time. It is not standard practice in Queensland to tell the jury they can bring in a merciful verdict of - - -
KIRBY J: Not "merciful", it was just the adjective, but there is such a provision in the New South Wales Crimes Act.
MR RAFTER: Yes, not in Queensland. At any time there is no provision for that to be done, and only rarely - I have only personally encountered it once that a judge told the jury they could "acquit at any time" was the direction given. There would rarely be a case where it would be appropriate to tell a jury they can convict before hearing all of the appropriate directions.
Now, the passage at 230, line 20, is not complained about in this context, but I did draw attention to it earlier when dealing with ground a because in dealing with that particular ground of appeal I was focusing on the failure of the judge to give the jury a section 23(1)(a) direction about a "willed act". So far as this is concerned, that is rather conventional.
At page 232, about line 40, her Honour poses this question:
What was his intent? Was it just to frighten Celap and drive him out of the house rather than to kill him or to cause him grievous bodily harm? If you find that his intent was just to frighten him and drive him out of the house, then you should find that he is not guilty of murder. Relevant to this will be whether you accept the accused's evidence that Celap was yelling out to him while he was using the toilet, whether you accept his evidence that he was concerned for his own safety.
That is the first of the impugned passaged identified by Mr Justice McPherson.
CALLINAN J: I missed that. I am sorry, Mr Rafter, what page is that?
MR RAFTER: This is at page 232, line 40.
HAYNE J: Is it the first passage upon which you rely?
MR RAFTER: It is.
HAYNE J: You make no complaint of lines 35 to 37?
MR RAFTER: I am sorry, your Honour, yes, I do complain about that whole passage from line 35 onwards.
HAYNE J: Do you complain of page 231 at line 50 and following?
MR RAFTER: Sorry, I should have drawn attention to that. I do, sorry, your Honour, yes, that is part of really the same thing.
GAUDRON J: That is a peripheral issue though, is it?
MR RAFTER: It is on a peripheral issue but is part of the same theme and, as I will develop the points that are being made, and Mr Justice McPherson recognised this, one of the relevant passages was really concerned with a criminal negligence direction on manslaughter but what his Honour said, and in my submission correctly, was that the theme of the summing up tended to distract attention from the real question which was whether or not the prosecution established its case to the requisite standard. It tended to convey the possible message that to make certain findings it was the accused who had to convince them of what he had to say.
Could I perhaps, having referred to that passage at page 232, go to Mr Justice McPherson's judgment at page 283 because his Honour sets that out at about line 27 and then his Honour says:
The defect in this formulation is that it invited the jury to acquit if (and, by inference only if) they made an affirmative finding that the appellant's intention was to frighten Celap and drive him out of the house. So to direct the jury was incorrect because in law it was sufficient to attract a verdict of acquittal that the appellant's testimony, considered alone or with other evidence at the trial, raised in the minds of the jury a reasonable doubt about his intention at the time the shotgun discharged. It was not necessary for the jury to go so far as to find affirmatively that his intention was, as he had testified, simply to frighten Celap.
That is, with respect, the defect in the way in which the matter was put to the jury, in my respectful submission.
If I can continue on then. There is a direction at 235. This is the one I mentioned earlier in the context of the criminal negligence. His Honour said - perhaps starting at 35:
If you are satisfied of that, satisfied beyond reasonable doubt, then you are satisfied of criminal negligence. So, if you are satisfied that the accused acted with criminal negligence, it will be to bring in a verdict of guilty of manslaughter.
Then following that:
If you accept the accused's version of what happened that night in whole or in part, you are going to have to evaluate his conduct and decide whether it was conduct such as to amount to criminal negligence.
His Honour Mr Justice McPherson again at the same page of his judgment at 283 set that out at the foot of the page, about line 55, as well as another passage which is at 238, and his Honour sets that one out at 284. His Honour recognises saying:
Although specifically concerned with the issue of manslaughter, a direction in this form could only have served to confirm in the minds of the jury the impression that they were expected to choose between accepting the evidence of the appellant, in which event, they were to acquit; or, alternatively, accepting the case for the prosecution, in which event they would be entitled to convict. That was, with respect, wrong in law because it failed to accommodate a third possibility, which was that, even if they were not prepared to accept his evidence wholly or in part, it and other evidence, including that of Sgt Graham, might nevertheless suffice to raise a reasonable doubt whether he had the necessary intent to kill or do grievous bodily harm. If the appellant's evidence, even if not accepted wholly or in part, raised a reasonable doubt whether his intention was only to frighten Celap, it might also have raised a doubt whether he in fact possessed the intention to kill or do grievous bodily harm. Factually, the two questions were not mutually exclusive, and in relation to both of them the prosecution carried the onus -
et cetera. So I rely upon his Honour's observations and, as I say, the additional criticised passage is 238 about line 30:
One factor which you may consider in deciding upon whether you accept the accused's evidence is how much -
et cetera.
HAYNE J: There is, I think, a series of decisions at intermediate court level saying that it is an error to charge a jury in a case alleging sexual offences, where the principal evidence comes from the complainant and the accused, it is an error to say to the jury, "The question for you is, `Who do you believe?'".
MR RAFTER: "Who do you believe?" - there are certainly appellate court decisions that criticise that sort of formulation.
HAYNE J: At some point I would be glad of a note that directed my attention to those cases.
MR RAFTER: One case that tended to put the case in a fashion like that in Queensland was R v G, but perhaps at a later time if I could provide those to your Honour.
HAYNE J: Victoria has had it, New South Wales had it, I think, as well and it may be Palmer here - - -
GAUDRON J: Palmer was a sexual assault.
HAYNE J: Is a sexual assault - - -
MR RAFTER: It collected some of those interstate authorities.
HAYNE J: Yes.
MR RAFTER: One such statement as to this topic is in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. Now, the passages I rely on are contained in dissenting judgments but the point dividing the Court was whether or not it was an appropriate case for the grant of special leave. The passages upon which I rely, I submit, are accurate passages which would not be likely to be challenged by the respondent here. The first is at 515 in the judgment of Justice Brennan, as his Honour then was, where his Honour said, about a third of the way down the page:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace -
et cetera. I will not read all of that out but it is the entirety of that paragraph that is pertinent. There are similar observations in Justice Deane's judgment at 519. His Honour set out the passages from the summing up and then made some observations about them. It is obviously incorrect to pose the question for the jury as to whether they believed the prosecution evidence or the defence evidence. These directions had the tendency in this particular case to do that, in my respectful submission.
This particular point was not taken at the trial, nor was it a complaint before the Court of Appeal, as emerges in the joint reasons of the President and Justice Atkinson. Nevertheless, the dissenting judge decided the question and it is now before this Court and the failure to have taken it below should not affect its validity here if the directions did carry that incorrect impression.
CALLINAN J: Mr Rafter, have you finished on your second ground of appeal?
MR RAFTER: I have not quite finished yet.
CALLINAN J: Go ahead and finish it.
MR RAFTER: I was just going to make these two points, and they will not take very long. The first is that if these directions are capable of producing division in the Court of Appeal, then, in my respectful submission, they are quite capable of misleading some members of the jury. Mr Justice McPherson thought they had the capacity to partially reverse the onus of proof, whereas the other members of the court thought otherwise. I submit the division tends to show that the directions perhaps did convey the question erroneously.
I was going to draw attention finally to one part of the summing up that is set out in the decision in the Western Australian case in Ugle. I do not have the page number from the appeal book in that particular case, but from the judgment itself, if one looks at the judgment of Mr Justice Wallwork at paragraph 34, there is a passage from the summing up set out therein. The final couple of sentences contained this, this is part of the summing up in that case:
Even if you don't accept that version, even if you don't believe Ugle positively, that's not the end of the matter, because you will remember the onus of proof in this trial rests upon the Crown. It is for the Crown -
et cetera. No such direction was given in this particular instance. The risks in the directions that were given were that the jury may have thought that the appellant carried some form of onus. That really is that ground b - sorry, if your Honour wanted to take me to something else.
CALLINAN J: Just on your first ground of appeal, Mr Rafter. The gist of the joint judgment seems to be at page 265, paragraph 5. It is the essence of it, is it not?
MR RAFTER: Yes.
CALLINAN J: Do you say that that is different in any relevant respect from what his Honour Justice McPherson said at page 282 in paragraph 22? Is it in substance the same?
MR RAFTER: The question being posed in the joint judgment and in Mr Justice McPherson's judgment are similar.
CALLINAN J: It seems to be the same sort of approach, does it not?
MR RAFTER: That is right.
CALLINAN J: There is no real difference, I do not think.
MR RAFTER: There is no real difference.
CALLINAN J: Does Gilbert have anything to say on this at all, in your submission?
MR RAFTER: Gilbert emphasises that - the majority in Gilbert emphasises, at least, that where the jury are presented with alternatives, they make take the lesser alternative. It was erroneous in that particular case for the judge not to have left to the jury the manslaughter verdict, although he did so consistent with the authority then prevailing in Queensland at the time.
CALLINAN J: It was a similar point though, was it not? Was it not argued there that the jury's finding must have negatived any of the defences upon which the accused could rely?
MR RAFTER: The respondent's contention in Gilbert was certainly to that effect. Having found murder, manslaughter was thereby eliminated. The majority of reasoning recognised that presented with alternatives, the jury may take the lesser of the two. So the reasoning in Gilbert does have application to this particular circumstance, with respect. In this particular case the jury was not asked to adjudicate upon the critical question, what was described as a critical issue in Guise.
CALLINAN J: Gilbert did not raise a section 23, did it?
MR RAFTER: No. The offender in Gilbert was a section 8 party to the murder. So there are certainly differences between the facts in Gilbert and this particular case. The ratio I apprehend in Gilbert really is concerned with the alternative verdict of manslaughter not having been put. Of course it was put in this particular case, that is no complaint. The rationale underlying Gilbert has application to this case, with respect.
CALLINAN J: That you are entitled to all relevant directions.
MR RAFTER: All relevant directions.
CALLINAN J: And that it is not an answer to say that the verdict necessarily negative defences that might have been raised by directions that should have been given.
MR RAFTER: That is right because really there were two questions: was the act, namely the discharge of the weapon, a willed act and at the time that act was performed, if the jury found it was a willed act, was that accompanied by the relevant intention as required by section 302. It is rather easy to say, "Well, an answer to the second will provide a solution to the first", but, with great respect, that is not necessarily the case. It is not unknown for cases of shootings, stabbings or other such cases where one might readily infer an intention to kill at an appellate level. A jury will not necessarily infer the intentions. Some shooting cases result in manslaughter verdicts, for instance. Those are my submissions, your Honours.
GAUDRON J: Yes, thank you, Mr Rafter. Yes, Ms Clare.
MS CLARE: Your Honours, could I just clear matters up at the beginning. My position is to accept that there was a misdirection in this trial. But that misdirection was in relation to manslaughter, manslaughter on the basis of an unintended killing. There was no misdirection in the direction on murder. Secondly, this is an appropriate case for the application of the proviso, that the misdirection in relation to manslaughter did not infect the charge to the jury on murder, did not infect the verdict on murder and, furthermore, that there was in fact manslaughter left to the jury. It was left on a proper basis of criminal negligence and in the circumstances of this trial, criminal negligence was the realistic alternative to murder.
If you take the alternative layer which is missing, that is, manslaughter on the basis of an unintended killing, where it has to be a willed act, voluntary discharge of the gun, that was not left to the jury and that is what I say was the error. In my submission, however, it is difficult to see how a voluntary discharge of the gun in these circumstances could have amounted to manslaughter and not murder. I say that because the appellant himself admitted in his evidence that he had pointed the gun at the deceased. It was uncontested on the evidence that he was at a close range when the gun was fired, I think it is some around eight feet from the deceased. He had a double-barrel shotgun and, in those circumstances, it is submitted that if he were to have discharged the gun consciously, deliberately, it would be inescapable to conclude that he had done so with the intention to at least cause grievous bodily harm to the deceased, unless of course he was intoxicated, and intoxication was left to the jury.
Now, your Honour Justice Callinan has raised the case of Gilbert (2000) 201 CLR at page 414. I have handed up that decision so the Court has a copy of it. In my submission, Gilbert is not a case that assists in Murray.
The error in Gilbert was the failure to leave manslaughter as an option - as an alternative verdict to murder. It was a strong Crown case, but there was no option of murder. It was a trial that preceded the decision of this honourable Court in Barlow. Gilbert was a party offender to murder, or that was the Crown case, section 7 under the Queensland Criminal Code, so that the Crown had to prove that he had assisted or aided the killer or the killers knowing that they intended to do grievous bodily harm or kill the deceased.
Now, as I said, the error was the failure to leave the option of manslaughter, which is not the case here, but the whole court went on to consider whether not withstanding that error, in fact the proviso could be applied and the ultimate decision, in my submission, was really one of degree. The majority concluded that the proviso could not apply because it was not inevitable that the jury would have concluded that Gilbert had known of the intention to kill or do grievous bodily harm. The minority judgments came to a different conclusion, that that conclusion was inescapable.
Now, the major part of the Crown case in Gilbert were the admissions that Gilbert had made to police. The problem with those admissions was this: although part of them strongly supported the Crown case for knowledge of the intent of the other parties, there were other parts which were contradictory and suggested something less than the required knowledge for the party provisions.
Perhaps the easiest way to grasp that point is at page 437 in the judgment of your Honour Justice Callinan at paragraph 83, talking about the records of interview. Midway down, those records of interview:
were capable, as was the case with Harding's statements, of being treated by a properly instructed jury as at least equivocal -
and so on. So that, in my submission, really makes Gilbert a case that is of no real relevance in this matter.
This was a case, in my submission, which was only a single issue case on the point that was taken up by your Honour Justice Hayne. The issue here was whether the discharge of the gun was deliberate or accidental and, in my submission, it is very clear throughout the trial that if it was possibly an involuntary discharge of the gun, then it could not be murder. Everyone in the trial, that is the judge and both counsel, treated the issue at the trial as part of the issue of intent. But, ultimately, the question which her Honour put to the jury was this, "Did the appellant kill the deceased intending to kill him?" By returning a verdict of murder the jury must have answered, "Yes - it must be taken to have answered, "Yes", to that question.
On the evidence the only means available to the appellant at the time that the gun discharged, the only means available to him to kill the deceased was by shooting him. It follows that if he killed the deceased intending to kill him, as the jury found, he must have chosen to shoot the gun. So that, in my submission, it is inherent in the jury's verdict of murder that the appellant's act in the discharge of the gun was a willed one.
In making my submissions I recognise, as I obviously must, that there is a distinction between willed, or willed act, and intent - willed act in section 23 and intent for the purposes of murder, they are not the same thing.
GUMMOW J: What is the distinction?
MS CLARE: The voluntariness refers to the act itself, that is, in this case the discharge of the firearm, and intention is an intention to cause the consequences, so an intention to cause death.
KIRBY J: Death or grievous bodily harm.
MS CLARE: Or grievous bodily harm, thank you, your Honour. There can be a deliberate act, a conscious voluntary act, without an intent to cause the result that follows, but the other way around it is less common - I am not making sense there. Generally, if there is an intent to cause a result, that will mean that the act which effects that result was a voluntary act. In my submission, the only common circumstance in which they will not be so is where there is a second act or another apparent means of attack which is under consideration or contemplation by the accused, as in the case of Ugle, where there was the conflict between the punch or the stab.
If I can just expand on that a little further. The Crown, of course, can negative involuntariness, prove that it was a willed act, without establishing that there was in fact an intention to kill, without proving murder. When that happens, when the act causing death is a willed act and there is no intention to cause the death itself, criminal responsibility must be established or is established under section 23(1A). The end result will have to be manslaughter provided that responsibility is established under 23(1)(b), that is, provided that the Crown proves also that death was foreseeable.
GUMMOW J: What significance is the proviso in 23(1) about negligent acts and omissions? What does that throw on the construction of 23?
MS CLARE: It means specifically that accident is not relevant to criminal negligence. My argument in respect of murder is different. It is not my submission that accident is not a defence to murder or wilful murder. My submission is that accident will generally be subsumed into the element of intent in murder.
HAYNE J: I am sorry, can you just put that last sentence again.
KIRBY J: It is relevant to the last case, is it not?
MS CLARE: Yes, your Honour. The submission is not that accident is not a defence to wilful murder but rather as a matter of factual reality, the combined effect of section 23(1)(a) and section 302(1)(a), that is wilful murder, means that it will be answered by a finding of intent for the purposes of murder.
KIRBY J: But that does not seem to jell very well with what you said. You said that intent was focused on the consequences, whereas the voluntariness/accidental is focused on the act itself.
MS CLARE: Yes.
KIRBY J: So that the mere fact that you are found guilty on the basis of an intention does not necessarily mean that the jury has focused its mind on the issue of whether or not there was this preliminary step to be gone through, namely the voluntary/accidental issue. It is a question of focusing the attention of the jury in the light of what the Code says.
MS CLARE: I take your Honour's point.
KIRBY J: There are the two steps and, though at the beginning of these proceedings I myself did not really see them, Falconer says they exist and on proper analysis I can see that they exist, so it is quite a difficult distinction to get through to a jury but Falconer binds and you have to do it, it seems to me, subject to a proviso in a particular case like Festa with a lot of evidence which is overwhelming in some way, but even then in a case like this it is hard to see how you have had a proper trial if you have not had the jury's attention focused on what the law is.
MS CLARE: If I can take just this case. As I said, there was a single issue. Nobody could have missed it. It was about whether the gun was discharged accidentally or deliberately.
GAUDRON J: On one view, if it was a reflex action, it is whether it was voluntarily or accidentally on the one hand, as against deliberately.
MS CLARE: Yes.
KIRBY J: The question is focus, it seems to me. If your mind is not focused on this quite subtle distinction, then there is a real risk that it passes you by in the night like the ghost ship, "Flying Dutchman".
MS CLARE: Certainly in this case, in my submission, there was no subtlety about it. It was the issue at the trial; it was the only issue.
HAYNE J: Can I just examine that proposition because it seems to me to be at the heart of your position. There was evidence from the accused man at 178 and 179 that he had obtained the shotgun in order to frighten the deceased. If the jury was persuaded beyond reasonable doubt that the accused had deliberately pulled the trigger, would it nonetheless, in light of that evidence, have been open to them to entertain a reasonable doubt about intention to kill? If you need a basis for reasonable doubt, on the basis that he had fired to frighten, not to shoot to kill. Acknowledging that was not his version of events, could the jury say the accused has over-egged the pudding in his evidence by saying "The gun went off by itself. What a load of nonsense. The gun was fired deliberately, but really what happened, or may have happened, is this fellow tried to frighten him and it went horribly wrong"?
MS CLARE: Yes. Factually, in my submission, it would be an irrational conclusion to come to, given his admission that he was pointing the gun at the deceased. Putting that to one side, a conclusion that the discharge of the gun was voluntary did not automatically mean that it was intended to kill.
My argument is the reverse though, that whilst the willed act can stand outside of intention, the reverse, certainly in this case, does not happen. That if it was a deliberate - if he had killed him with the intention to kill him, he must have intended to fire the gun and the verdict indicates the latter, that is, that he killed him intending to kill him because of the directions that were given, perfectly proper directions in line with the elements of murder.
GUMMOW J: Could you give me some examples of sections which are express provisions related to negligent acts or omissions?
MS CLARE: The most common is section 289.
GUMMOW J: Section 89, thank you.
MS CLARE: That is the criminal negligence provision in relation to dangerous things. Perhaps I should also mention that there is an express exclusion in section 302, that is the murder provision, as to the application of section 23, as well.
GUMMOW J: Whereabouts is it in the murder provision?
MS CLARE: I think it is subsection (4) - no, I am wrong. I was dreaming about that, I am sorry.
GUMMOW J: So the best candidate looks like 289.
MS CLARE: Yes, but there are a number of similar provisions in that same area. One, in relation to the administration of medical assistance, and so on. They are all consecutive. Section 286 is the duty of a person who has care of a child; 288 is the duty of a person doing dangerous acts; and 289 the duty of a person in charge of dangerous - - -
GUMMOW J: Now, taking an offence under 286, how would section 23(1) then work? What is a possible scope for the operation of 23(1)?
MS CLARE: It will not work. If the prosecution is based upon a breach of that duty it does not matter that it is an involuntary act or that the consequences were not foreseen or foreseeable.
GAUDRON J: What was the criminal negligence that was being left to the jury in this case? I know, on one view, one does not get there, but was it having a loaded gun?
MS CLARE: Yes, it was being in charge of the gun as a dangerous - - -
GAUDRON J: A loaded gun?
MS CLARE: A loaded gun, yes.
GAUDRON J: So that left open the possibility that it might have gone off by a reflex action, all the same?
MS CLARE: Yes.
GAUDRON J: Then how does that work? If you allowed that it went off by reflex action, you would never get to murder.
MS CLARE: Yes, that is true. You would never get to murder.
GAUDRON J: Then how do you get to manslaughter?
MS CLARE: You get to manslaughter by 289, by showing that - - -
GAUDRON J: I am just wondering how you relate 23(1) with 291.
MS CLARE: Sorry, which section - 291 is the killing - - -
GAUDRON J: You would have to distinguish very carefully that you are talking about different acts to the jury at least, would you not? That for 291 - - -
GUMMOW J: You link up at 23.
GAUDRON J: - - - you have to distinguish to the jury - well, you have to make it clear to the jury that you are talking about firing the gun.
MS CLARE: Yes.
GAUDRON J: And then you have to make it clear that you are not talking about firing the gun, but you are talking about having possession of a loaded gun, do you not?
MS CLARE: Yes.
GAUDRON J: Now, where did her Honour the trial judge make that clear? It seems to me it was not entirely clear - it might not have been entirely clear to the jury what they were looking for.
MS CLARE: In my submission, the issue that your Honour raises is really part of the problem in a direction to the jury involving - - -
GUMMOW J: Yes, that is right.
GAUDRON J: That is right, exactly, and was it adequately dealt with or was there a possibility that the jury was confused, or might have been confused, by the way in which the manslaughter and murder cases were run together and left on the basis, "If you believe the accused's account"?
MS CLARE: In my submission, the way it was dealt with in this case really was the simplest, cleanest and most accurate way. That was, rather than bringing section 291 unlawful killing at the very start when looking at murder, proceeded to murder on the basis of whether it was killing with the intention to kill or do grievous bodily harm. If my submission about a willed act being subsumed into that factual issue of intent is correct, then her Honour was right in then moving on to the issue of manslaughter, and it was then, on the question of manslaughter - as I said earlier, the issue of a willed act should have been left on the first basis for manslaughter.
GAUDRON J: Now, there is a further question, is there not?
MS CLARE: Yes. Perhaps your Honour could tell me again.
GAUDRON J: Is there not this question, once her Honour said, "If you believe the accused" - and let us assume they do not - are you not doing what was said to be the vice in Gilbert, shutting off manslaughter so that the jury might think, "Well, I'd better find him guilty of murder"?
MS CLARE: There was in fact a basis for manslaughter though.
GAUDRON J: I know there was.
MS CLARE: It was a very broad basis, that is criminal negligence. So there was that basis for manslaughter.
GAUDRON J: Yes, there was certainly a basis for manslaughter, but it was not shooting. It was possession of a loaded gun, presumably in a confined space. I have seen no directions that really detail what the manslaughter case is. I wonder, therefore, if one does not get right into the Gilbert problem.
MS CLARE: In my submission you do not get to Gilbert because you have a lesser offence. The jury had the option of a lesser offence.
GAUDRON J: Yes, but they were never told on what basis that lesser offence was there, were they?
MS CLARE: In my submission, they were, from page 234 of the record book.
GAUDRON J: They were told, "If you believe the accused".
MS CLARE: In my submission, that was a correct direction because it was for the Crown to prove criminal negligence. The factual basis of the criminal negligence rested on what the accused told the jury, that is, that he knew the gun was loaded, that he was pointing it at the deceased, he had sawn it off himself so he knew it was a sawn-off gun, that it was very old, he knew it was loaded, so in those circumstances it was correct to say that the jury could not convict of manslaughter on the basis of criminal negligence unless they were satisfied - - -
GAUDRON J: Does not the direction - perhaps you can tell me again where it was.
MS CLARE: It is at 235.
GAUDRON J: Page 235?
MS CLARE: It starts on 234, the description of criminal negligence, but the impugned direction is at 235 at about line 40.
GUMMOW J: Why do we get into notions of criminal negligence in formulating manslaughter under the Code?
MS CLARE: I am sorry, your Honour, why do you or how do you?
GUMMOW J: Yes. If one looks at the statutory language, where does on find it, other than by some common law analogue which we are not supposed to have? Manslaughter is 303. It is a residual category, is it not?
MS CLARE: Yes.
GUMMOW J: It throws you back to section 300, which throws you back to sections 293 and 291, with the possibility of an excuse under 23, I suppose, or perhaps in other sections. But is it not really just an unlawful killing?
MS CLARE: That is what it becomes, yes, but it unlawful not because an accident has been negatived, it is unlawful because - - -
GUMMOW J: It is not justified or excused by law.
MS CLARE: Yes, and that is because there is a breach of section 289 in the duty in respect of the dangerous thing.
HAYNE J: I do not follow, for myself, why you go past 291 back into 289. You said 291 invites attention to authority, justification or excuse - that I can understand. Why, if 23 does not apply - excuse, authority or justification, presumably found elsewhere - why do you go back to 289?
MS CLARE: Your Honour is correct. One can simply come to the question of unlawfulness on the fact that there is no defence of accident, there is a killing and no defence.
GUMMOW J: Or no plea of authority, justification or excuse.
MS CLARE: Yes.
CALLINAN J: But you do not need 289 for manslaughter.
MS CLARE: For manslaughter it could, in theory, be brought in, as I said, on the basis of an involuntary killing - sorry, an unintended killing.
CALLINAN J: But it is not essential here for manslaughter.
MS CLARE: What, 289?
CALLINAN J: Yes.
MS CLARE: No. In my submission, it really was the only realistic alternative, as I said, because of the circumstances in which the gun was discharged on the appellant's own admissions, that is, the pointing of the gun, the fact that he was so close to the deceased and the fact that it was such a dangerous weapon, then it would be very difficult to resist the inference that he had not intended to at least do grievous bodily harm unless he was deprived of his intent because of intoxication and, as I said, her Honour did deal with intoxication.
Just while dealing with criminal negligence, although her Honour did leave manslaughter as an unintended killing, as I said, to the jury in a general sense, both she and the defence counsel and the Crown Prosecutor effectively confined the relevance of the appellant's own admissions to criminal negligence or a complete acquittal. By that I mean the approach of the judge and counsel was that the only way in which the appellant's account of things could assist the Crown was through criminal negligence. Perhaps the best way of demonstrating that is to look at the directions from 235 to 236 and particularly at 236 at about line 50 where her Honour gave a summation, a summary.
So, in my submission, the effect of the summing up was that if the jury concluded that the appellant had intended to kill the deceased, it was murder. If they were not satisfied of intention, on the basis of intoxication they could find manslaughter. Alternatively, if they were satisfied of criminal negligence, again, they could find manslaughter. Finally, they could acquit.
KIRBY J: Was there deliberation with counsel in the absence of the jury before the instructions were given to the jury?
MS CLARE: Yes, there was some discussion, but they primarily focused on the second limb of acts of section 23, the foreseeability of death and that direction was ultimately given.
In the addresses of counsel which are reproduced one can also get the flavour of the approach, so that in the defence address the jury were told that it was a matter of criminal negligence or nothing and that is at page 201, about line 30, and 204 at line 30. The Crown Prosecutor - - -
KIRBY J: Which page, I am sorry.
MS CLARE: Sorry, 201, it might be line 17 and 204, about line 30. The Crown Prosecutor put his case on the basis that this was a deliberate act. There are various references in Mr Justice McPherson's judgment to points in the interview where the Crown case was, effectively, that the appellant had lured the deceased from the hotel to his house for the purpose of this offence. At page 220 at about line 10, the prosecutor made it abundantly clear and said:
And the Crown says here, well, all you have to do first is this: that the gun was deliberately set off.
So, as I said earlier, in light of the focus of the cross-examination, in light of the addresses of counsel, as well as in the whole context of the summing up itself, there could be no doubt in anybody's mind in that court room that if the gun was discharged accidentally, that is, without any conscious thought by the appellant, then he could not be guilty of murder.
In my outline I refer to the - given the time I do not propose to take the Court in detail through all of the authorities in my outline, but if I can briefly deal with them, in the decision of Mullen's [1938] HCA 12; (1938) 59 CLR 124 - - -
GUMMOW J: That is another shooting case, is it not, and a fracas?
MS CLARE: Yes it is; it was a robbery and a struggle and the gun went off. It was a case where there was a misdirection in relation to the onus for accident. There was a statement by the trial judge that the Crown needed to negative accident. In fact, in this case, elsewhere in the summing up there were perfectly proper directions about the correct onus and all of the court came to the conclusion, although denying the Crown special leave, that if the Court of Appeal had, in fact, declined to interfere, then the High Court would not have interfered either. But, for my purposes, it is the remarks of the Chief Justice and Mr Justice Dixon that are relevant. I have quoted those in my outline. Your Honour Mr Justice Hayne earlier pointed out that this is not a case which sets down a universal principle, but has to be seen in the context of the decision. I accept that, respectfully of course, but it demonstrates that there are many murder cases where it is unnecessary, or it will be unnecessary, for there to be a direction about voluntariness independent of the question of intent. The decision of Falconer - - -
GAUDRON J: Well, if the trial judge had said, "Did he deliberately fire this gun?", and left that as a distinct issue, there would be no doubt about it, would there?
MS CLARE: There would then be a complaint about whether or not - you mean in addition to the direction on intent?
GAUDRON J: Yes.
MS CLARE: Yes, well that is so. It seems a very simple thing to have said, but - - -
GAUDRON J: The real question is whether in context of the addresses of the summing up there might have been a tendency for the jury to assume that it was deliberately fired.
MS CLARE: Yes. In my submission that could never have happened rationally in this case, because it was the only decision for them to make, in effect, on facts. I keep saying it was the only issue, but I cannot get around that; that is a very important point from the perspective of my submissions.
The Court has been referred to Falconer (1990) 171 CLR. That was a case dealing with automatons. It is my submission that what is said in Falconer does not contradict the views of Chief Justice Latham and Mr Justice Dixon in Mullen. Falconer was a decision based upon the interaction between section 23, the accident provision, and section 27, the insanity provision of the Code.
Justice Toohey, at page 65 of that decision, identifies the questions that were referred by the Crown, in the second-last paragraph:
Before this Court, those questions were formulated by the Crown in the following way: "(a) whether involuntary acts performed in a state of dissociation resulting from emotional tension are excused by virtue of the operation of s. 23 of the Criminal Code (W.A.); (b) the relationship between ss. 23, 26 -
which is the presumption of sanity -
and 27 -
which is insanity -
of the Criminal Code -
Page 66 of that same judgment, towards the middle of the page his Honour referred to the decision in Mullen without criticism and he notes, though, that the issue in that case and the case of Falconer was a different one. He says, towards the middle of the last paragraph:
The issue with which this Court is confronted does not focus upon the elements of the crime of murder; rather it relates to questions of criminal responsibility arising from particular sections of the Code.
So the distinction between Mullen and Falconer was Falconer was looking at criminal responsibility generally, rather than the specific elements of wilful murder and the interaction of section 23, which is what we are doing in this case.
Now, my learned friend referred to the case of Guise (1998) 101 A Crim R 143 and your Honour Justice Hayne has identified that there were two issues in that case as distinct from this one. This is the strong Crown case of the woman who shot and killed her mother. But there are other aspects that distinguish it from this one, in my submission. It was a case where the court of trial assumed that it would be murder or manslaughter, so there was no direction in relation to an acquittal. The jury were wrongly withheld from returning a verdict of acquittal. There was no direction on manslaughter itself. So there was no direction in relation to either section 23 or criminal negligence.
In quashing the conviction, Mr Justice Ambrose, with whom Mr Justice Lee agreed, essentially followed the decision in Griffiths. Griffiths was a manslaughter case. There was no charge of murder in Griffiths and that, in my submission, is a critical distinction. Furthermore, Mr Justice Ambrose did not go on to consider the elements of murder, that is, specifically the element of intent and the interaction with section 23 in order to go on to consider the proviso. But as I said, it is a very different case from the present. Griffiths (1994) 69 - no, I think there is - Australian Law Journal - - -
GUMMOW J: No, it has not made it to the Commonwealth Law Reports.
MS CLARE: No, thank you. It also is not particularly helpful in this case, in my submission, because it was a manslaughter case rather than a murder case. There was no direction in that case about the basis for manslaughter. It could have been either unintended killing or criminal negligence. Neither of those bases were explained to the jury and, in fact, his Honour told the jury that there was no issue about lawfulness, notwithstanding the fact that accident had in fact been raised on the evidence. That is clear at page 78C, right-hand column, in the portion of the summing up:
I direct you that the evidence raises no issue of such authorisation, justification or excuse.
That was plainly wrong and, again, very different from the present case.
Finally, I come to the proviso and submit that in this case, notwithstanding any misdirection in relation to the voluntariness, the appellant has not lose, or did not lose, any real chance of acquittal.
KIRBY J: Well, a view that it is an accident is a basis for acquittal.
MS CLARE: Yes.
KIRBY J: And if the jury do not direct their attention to it, then the accused has lost whatever chance existed of acquittal on that question. Because the jury is enigmatic and we do not know how it reasoned, how do you say in this case, "We can" as it were "do for the jury that which the jury was not asked to do by the judge"?
MS CLARE: I really say no more than that with which I started out, and that was to say that it is - - -
KIRBY J: Inherent.
MS CLARE: It is inherent in the direction for murder. So there was no risk of misunderstanding, about what was required.
KIRBY J: It comes really down to quite a fine point. Was it inherent or was it necessary, by the Code, for the jury's attention to be focused on this possibility.
MS CLARE: Yes.
KIRBY J: As a matter of legal construction and as a matter of the policy that the legal construction suggests, one would think - at least in a case like this - ought to be a matter on which the mind is focused, as a matter of principle.
MS CLARE: Yes.
KIRBY J: I think you have conceded that a direction ought to have been given.
MS CLARE: Certainly the direction could have been given.
KIRBY J: Seems a great pity in this case, and in other cases that we see, that there is not some sort of formula that judges and counsel can go through. The Americans do this with the so-called "template" and much shorter directions on the law. These things go off because we are being very wise after the events, looking at what has been done in the trial, while sometimes not with a great deal of persistence from counsel.
MS CLARE: Yes. In this case defence counsel never sought to have the section 23 put.
CALLINAN J: Despite that the prosecutor specifically raised it.
MS CLARE: Yes. Given that that was the whole focus of his case, the nature of the discharge of the firearm, one would have thought he would be very attentive to the way in which the jury were directed. It was not apparent to the defence counsel that there was any deficiency in the way his matter was put to the jury. Whilst that is not the end of the matter, it is, in my respectful submission, a factor that needs to be taken into account in weighing up the impression of the summing up.
KIRBY J: I think Justice Callinan and I have both said that there is an impression the proviso is less used now in recent times than it was.
MS CLARE: I found that out, to my - - -
KIRBY J: This is because of the very high standards that our law sets for correct directions on the law without which, on one view, there is a miscarriage just on that alone.
MS CLARE: Yes, but it still has to be available - - -
KIRBY J: Just to have lost the chance of acquittal and so on.
MS CLARE: Yes. There was reference by my learned friend to a point - it was only a small point - in relation to the photographs and the location of the bullets on one side of the chair. In fact, the evidence of the pathologist about the trajectory at page 10 about line 9 talks about the distorted trajectory, and nothing was really made of that by the defence at the trial.
Perhaps one other point that I would make on this question of the strength of the case is about the statements that were made by the appellant shortly after the shooting. Although there was no record of interview effectively given, he did give a brief account to various people about what had happened. What he said, in my submission, comes very close to the nature of admissions. He said to quite a number of people that night words to the effect of "I shot someone" or "I shot Tony Celap" and also talked about at the same time how he was "in deep shit". He used the same phrase, "I shot a man" or "I shot a person" or "I shot Tony", to the neighbours, to the police officer on the telephone, to his mother, to his son.
HAYNE J: Am I unduly captious if I say, Ms Clare, that it is not self-evident that to this accused the distinction between willed and unwilled acts was prominent in his thinking after an event of this kind? Is that merely a captious comment?
CALLINAN J: After a few, if I can put it colloquially, "jars" as well.
HAYNE J: Yes, I understand that point, but he never once said, "I rely on section 23 of the Criminal Code". I will give you that, Ms Clare, at once.
MS CLARE: Well, he never once said, as one might expect, "There's been an accident", or - - -
HAYNE J: Any man who gives his evidence in the form in which he did is a man accustomed to very blunt speaking.
MS CLARE: He was also very sharp in the way he responded to cross-examination.
KIRBY J: I suppose you are entitled to say that anyone, even blunt speakers, will say, "It was all an accident; it was a terrible accident".
MS CLARE: That is the most natural way to explain what happened, but the fact that he repeatedly said that, that was the way in which he explained it to everybody, coupled with the fact that he was not even aware of the injury to his head and the evidence that places that consistent with the hammer of the gun. Perhaps these statements might be more persuasive to your Honours - perhaps not, but I will try. At the bottom of page 123 to Officer Bindon, he says:
"It is not fucking good, is it, Mick? What is going to happen now? He is a shit that bloke, a cunt. He has broken into my house before.
This is the important bit:
I told you I would ring you when the shit goes down and I wouldn't put you in it. I did ring you, didn't I? I told you that I would ring you and keep you out of it".
That implies, in my submission, premeditation and revenge. At page 133 and Officer Irwin, about line 40:
he said, "I'm in deep shit, aren't I, mate?" At one stage he said, "He's nothing but a cunt anyway. You wouldn't be too upset about this, would you?" - - -
CALLINAN J: I think Mr Rafter has set all of these out in his submissions.
MS CLARE: Thank you. Perhaps the only thing that is left for me to deal with is in relation to the last ground, the question of the onus of proof. My submission is that in the context of the whole of the summing up, there is no risk that the jury would have been confused about their responsibility in relation to the onus of proof. That is a simple answer why it was never raised by defence counsel. This was a contest of credit but it must have been plain to the jury because of the directions that they could not convict the appellant unless they were satisfied of the elements of the offence beyond reasonable doubt, that he did not have to prove anything and if they had any doubt about any element, then they must acquit.
KIRBY J: In a way, the fact that they came back and asked for redirection on what "reasonable doubt" meant, indicated that they had absorbed that critical part of her Honour's charge.
MS CLARE: Yes, and when one looks at the first passage which is criticised at page 232, my submission is, like the majority of the court below, that it really is about setting out for the jury how the accused's story bears on the issue of intent so that if this were accident, an accidental discharge of the gun, it could not be murder. The omission that is complained of is the fact that at that point her Honour did not go on to say that, "If you have a reasonable doubt about that, then you would also acquit". Very soon after, within four sentences of that, so seconds later, her Honour said that very thing at page 233, at about line 10:
If you are not satisfied beyond reasonable doubt that he formed that intent or if you are left in a reasonable doubt whether he formed it, then it is your duty to find him not guilty of murder.
So in the passage is criticised her Honour, as I said, can be viewed no more than really demonstrating to the jury the relevance of a particular aspect of the evidence. Her Honour did not say, for example, that that was the only way - the accused's version was the only way - accepting the accused's version was the only way in which they could find the appellant not guilty of murder. So it was not a positive misstatement of the law and it was clear, it had to be clear in the context of those directions, that that passage was not meant to stand alone, that it was really a part of the whole, and a large part of the summing up was devoted to intention and the onus of proof. As I said, within second of that criticised passage, her Honour correctly put the full statement in relation to the onus of proof and there was no application by counsel for redirections so no impression at the trial that there had been an error or that the jury may have been misled.
I have already, I think, addressed in relation to the second complaint in relation to criminal negligence, I do not know if the Court wishes me to go over that. No?
KIRBY J: We do not answer questions.
GAUDRON J: We do understand your submissions but if you have anything further to put in relation to it, you should put it.
MS CLARE: No, those are my submissions.
GUMMOW J: Just a minute, I am still having trouble with Chapter 5. It is not immediately relevant to this case but to understand how a chapter works, is section 31(1)(c) an echo of common law notions of self-defence? Section 31(1)(c)?
GAUDRON J: Just (c) and (d).
GUMMOW J: Yes, and (d). Is that where you find self-defence in this Code?
MS CLARE: No, section 271.
GUMMOW J: Section 271.
MS CLARE: Yes, it is 271 and 272, I think. I will just check that.
CALLINAN J: That is right.
GUMMOW J: Yes.
MS CLARE: And section 272 is self-defence against provoked assault.
GUMMOW J: Yes.
KIRBY J: I wonder why it is not in section 31. Was it originally? Is there any history to that, do you know?
MS CLARE: No, it has just made a separate - I cannot answer that, other than to say it is just treated as a separate defence.
GUMMOW J: Well, 31(2) has some exclusions in it. That is what puzzled me, but that is cured by Chapter 26 by the look of it. Thank you.
MS CLARE: Yes, thank you.
KIRBY J: It is probably there because it is not relevant to all crimes, whereas it is relevant to crimes of a particular kind.
MS CLARE: Yes, violence.
KIRBY J: Whereas section 31 in Part 1 is relevant to everything.
MS CLARE: Everything, yes. Those are my submissions.
GAUDRON J: Yes, thank you, Ms Clare. Yes, Mr Rafter.
MR RAFTER: Just very briefly - - -
CALLINAN J: Before you start, Mr Rafter, is Charlie's Case against you?
MR RAFTER: It is concerned with the Northern Territory provision.
CALLINAN J: I know.
MR RAFTER: It is concerned with the provision that - if it is to be equated to a Queensland provision, it is (1)(b), about which there is no complaint in this case because correct directions were given on that subject. So, in my respectful submission, it does not affect the appellant's position in this particular case at all.
CALLINAN J: The wording is somewhat different I think.
MR RAFTER: It is and your Honour noticed in that case that each statutory provision in a particular Code will have to be construed according to the circumstances of that Code. It is not like 23(1)(a) at all, the provision that was being construed in Charlie.
CALLINAN J: Section 162 of the Northern Territory Code is fairly similar to, I think it is 302, is it not, of the Queensland Code?
MR RAFTER: Yes, that is true.
CALLINAN J: But section 31 is different. There is no reference in 302, for example, of the Queensland Code to section 23 of the Queensland Code, whereas, as Justice Hayne points out in Charlie, there is a specific reference in 162 of the Northern Territory Code to section 31, I think it is, which is the accident-type provision.
MR RAFTER: That is right. The decision in Charlie, with respect, does not really assist in the construction of section 23 at all.
CALLINAN J: The language of section 23 is quite different from 31, is it not?
MR RAFTER: That is right.
CALLINAN J: It talks about foreseeability.
MR RAFTER: Yes. Just very briefly, my learned friend made the submission that what the trial judge did here was to reduce the case to the simple single issue that it truly involved. This is somewhat like what Mr Justice McPherson said at 282 about line 35: His Honour said:
stated in its simplest form -
the single issue -
was whether the killing of Celap was deliberate.
The danger, of course, in simplifying questions is that an important ingredient or matter of exculpation or excuse or defence might be overlooked and it would be quite different if the case was put in a simple fashion like: did he deliberately discharge that weapon intending to kill the deceased? That might be different, but nowhere does one see a particular direction like that. The question of whether or not the act was a willed act was not examined at all in the summing up and not considered by the jury.
The manslaughter case that was put forward on criminal negligence was predicated upon acceptance of the appellant's evidence and it does seem, with respect, to follow that if the jury rejected his evidence, then they would probably be looking at a murder verdict rather than really focusing their attention on whether or not the prosecution had discharged its onus. Your Honour Justice Gummow raised some questions concerning the criminal negligence provision. Can I just say from my own experience in Queensland the prosecution seems to often formulate its case of manslaughter in circumstances akin to these or shooting cases or stabbing cases. They often seem to formulate their case based on criminal negligence rather than simply resorting to the provisions contained in the homicide provisions in the Criminal Code. They could easily, as your Honour said, simply say if murder is not established, it is an unlawful killing, there is no question of authorisation, justification or excuse, therefore a manslaughter verdict would follow.
HAYNE J: Well, is that right, because it may be that the key to the relevant understanding lies in the opening words of 23(1), "Subject to the express provisions . . . relating to negligent acts and omissions", and that is the way in which it is explained in Callighan's Case 87 CLR, particularly at 118 to 119, that you get into the negligence provisions via this express exclusion at the start of 23(1).
MR RAFTER: That is true, but there is no reason why a manslaughter case, in circumstances akin to these, cannot be formulated simply upon the ground that, as provided for in section 303, if there is an unlawful killing under circumstances not constituting murder, then the offender is guilty of manslaughter. So a manslaughter case can be formulated - and I think my learned friend was alluding to this during the course of her submissions - under two bases.
HAYNE J: But in a case where, "I didn't think the gun was going to go off and it went off by itself", there would ordinarily be alive an issue about accident.
MR RAFTER: Yes.
HAYNE J: Hence the need, in 23(1), to have reference to the provisions about negligence so that even though it was an accident that the gun went off, presenting a loaded gun at someone eight feet away is criminally negligent.
MR RAFTER: And therefore guilty of manslaughter.
HAYNE J: Just so.
MR RAFTER: So it can be put on a dual basis under the criminal negligence - - -
GUMMOW J: It throws some light on what "accident" means.
HAYNE J: Just so. "Accident" might encompass the, "Gee, the finger slipped".
MR RAFTER: That is right, it could easily do that, and if the case is formulated under section 289, then section 23 will not give any ground for exculpation.
HAYNE J: Just so.
MR RAFTER: Thank you, your Honours.
GAUDRON J: Yes, thank you, Mr Rafter. The Court will consider its decision in this matter.
AT 3.43 PM THE MATTER WAS ADJOURNED
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