Agnew v The Queen

[2004] HCATrans 454

[2004] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P72 of 2003

B e t w e e n -

WAYNE ROBERT AGNEW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 11.58 AM

Copyright in the High Court of Australia

MR W.R. AGNEW appeared in person.

MR R.E. COCK, QC:   If the Court pleases, I appear for the Crown.  (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J:   Yes, Mr Agnew, we have read your submissions.  Now, as you are aware the Court may ask you some questions, but there may be some matters in your submissions that you wish to emphasise and if so you can go ahead.  You have 20 minutes.

MR AGNEW:   Is it all right if I have these handcuffs removed, your Honour, so I can go through my paperwork?

McHUGH J:   It is a matter for security, but as far as we are concerned, there is no reason ‑ ‑ ‑

KIRBY J:   I think you should have, if you can, have those removed so that you can have access to your papers.

McHUGH J:   Yes.

MR AGNEW:   The Crown alleged at trial that I was guilty of wilful murder, and this was the Crown’s case at trial.  My defence was obvious, one of accident if you have read my submissions.  At the end of the day, the jury found me guilty of murder.  This was never argued as a real possibility at trial, though it was an alternate verdict that was hardly logical or practical when one considers all the evidence in relation to the calibre of the firearm and evidence of ballistics and medical experts led by the prosecution.  I am relying on Justice Wheeler’s judgment in the Court of Criminal Appeal and that can be located at page 178 of the application book at line 45.

KIRBY J:   We have read Justice Wheeler’s dissenting opinion.

MR AGNEW:   All right, thank you, your Honour.  I suppose my first complaint is based around – of course, accident enabled section 23 of the Criminal Code.  That is subject to 266 of the Criminal Code.  Section 23 is made up of two limbs, your Honour, as you know.  A person is not criminally responsible for an act or omission which occurs independent of the exercise of his will.  I suppose my main complaint with the Court of Criminal Appeal is that when dealing with this section of the Code, that section there was read twice to the jury, and that was their only assistance in having to deal with what was a willed act.  Now I am sure, when I say “willed act” in court that yourselves and everybody else knows that it is the conscious voluntary act where you actually will something to happen.

KIRBY J:   I realise that, and I understand that your complaint is about the directions given by the trial judge, and I do accept that those directions were somewhat confusing and maybe not perfect, but the fact is that the evidence was pretty strongly, indeed, almost overwhelmingly against accident.  You are a person who is experienced in firearms.  You turn up with a firearm which you then cover in a pillow, presumably to muffle the sound and thereby inferring that you intended to use it, and thirdly, you had a chance during the encounter and you reloaded the firearm and that really stands against any suggestion that you have suffered a miscarriage on the basis that this was an accident case.  It does not look like an accident case in the facts.

MR AGNEW:   Your Honour, just dealing with the evidence, I never took the firearm anywhere.  It actually occurred at my own home.  A series of very serious threats were made against me, and the firearm was already out in anticipation of a perceived threat.  The firearm itself was – there was expert evidence about the firearm being faulty and having numerous faults to it.

KIRBY J:   Yes, but ultimately the police said it was within a certain range as being normal in operation.  That was the ultimate conclusion, was it not?

MR AGNEW:   I think the ultimate conclusion ‑ ‑ ‑

KIRBY J:   You are a person experienced with firearms.  It is not as if you are a novice.  You have a licence.  You had a licence for a handgun as well as for a rifle and you turn up and on one view you, as it were, tricked the deceased into coming to the place, and then you put a pillow around it.  It does not look like an accident case.  It looks a very deliberate series of acts.

MR AGNEW:   Your Honour, if that is the view one wants to take of the evidence it can be perceived to be that and I am not going to argue with that.  But in speaking about the evidence, your Honour, I mean, it definitely was not a case of luring someone to my premises, carry out an act.  I mean, there was more than ample evidence at trial where people had rolled up, admitted discussion where I would ask them to come back in five or 10 minutes, as we were discussing our children.  There was also evidence that I had already arranged to go fishing the following morning, so it was not like there was some pre-planned wilful murder as the Crown alleged.

KIRBY J:   You were acquitted of wilful murder.

MR AGNEW:   Yes, but that would be a pre-planned murder, your Honour, as you have just alluded.  If I have wrapped a pillow around a firearm and discharged it deliberately, I mean really, logically, it was either a case of wilful murder or we have really got one of accident subject to 23 and section 266 of the Code. 

Now, there was enough evidence at trial and there was extensive video records of interviews, your Honour, and though I admit that I introduced the firearm into the argument, it was with the intent to frighten the deceased lady, Tania, into telling me the whereabouts of someone I would like to have spoken with. 

First of all, I will talk about the firearm first.  The magazine only got dislodged throughout numerous struggles, your Honours.  Every time the situation would settle down and I would put the firearm down, the deceased would pick it up and then start pointing it and another scuffle would break out, and as soon as things settled again it would go down.  It was not just my hands on the firearm at any one stage, and I think there is gunshot residue on Tania’s hands, or the deceased’s hands, if the Court prefers, which indicates that she was in contact with the firearm and gunshot residue.  As Mr Cock will tell you, through ballistics it is…..the handling of a firearm, anywhere there is gunshot residue, you will pick these things up. 

I never reloaded the firearm, your Honour, but the firearm was, to the best of my memory, already loaded.  I did pick up a magazine that had fallen out during one of the scuffles and replaced it, but I suppose from being a competitive shooter that was more of just a motor action, one that you would not necessarily think about, if it is something that happens on the course of fire you just automatically do. 

The pillow only became involved, your Honour, because - and it is pretty hard to describe it because I do not have a map to show you, like we had at trial, of the residence, but basically I was standing in the doorway and I was not prepared to let Tania, or the deceased, leave until such time as she had told me the whereabouts of a person.  Now, we had all this scuffling and everything else and her grabbing at the firearm and me removing it from her.  There was a time where she threw the pillow at me, but to stop her coming in contact with the firearm, your Honour, I actually wrapped it, and as the ballistics people and the firearms experts that the Crown led at trial will tell you, that is not how one muffles a shot.

If I could use this bit of a demonstration, your Honour, being in the shape of a pillow, if one uses the pillow as a muzzle one would shoot through it.  In the case of mine, it was folded like that.  There was clear indication that it went in one corner and out the very other corner, and I would suggest to the Court no one would take a shot ‑ ‑ ‑

McHUGH J:   Mr Agnew, we are not here to try the facts.  We only grant special leave in a limited number of cases, and what you have to show is that there has been some misdirection here which amounts to a miscarriage of justice or which is otherwise sufficient to warrant the grant of special leave to appeal.  The law in Western Australia is settled.  Your complaint seems to be about the way the trial judge directed the jury.

MR AGNEW:   Yes, your Honour.

McHUGH J:   It does not seem to raise a special leave point.

MR AGNEW:   I suppose it is raised in a number of ways.  There is section 23 that deals with the unwilled accident.  As I have just described to you, if there was some external force or it was not a willed act, it eventually led to an accident.  The Crown had to disprove those things beyond a reasonable doubt, and as I understand the law, and I may be right or I may be wrong in this, your Honours, but before a jury is directed on intent, one must first be convinced that it was a willed act not on the part of myself in this case.  Have you agreed with that point at all?

McHUGH J:   You put your submissions.  We listen to them.

MR AGNEW:   I just did not want to keep repeating myself and staying on the one topic if your Honours understood where I was trying to go with that point.  I suppose that the second as we have just been discussing - section 23, the second part of section 23 or the second limb deals with an event that occurs by accident, and I guess that is what I was alluding to just then in my notes and that is, once the jury had dealt with whether it was a willed or unwilled act, or whether it was subject to section 266, then it would be for the Crown, as I understand it, to prove that it was an event that occurred by accident.

Now, his Honour when dealing with accident mentioned accident eight times in total in his charge and it was a very moderate use of the word, the word of “accident” in the lay sense.  I am sure that the Court is aware that both counsels at trial made submissions to the trial judge in relation to a definition of accident or how accident may have arisen in these circumstances. 

As I understand it, after reading Ugle, where your trial counsel disavows a defence, generally that would be the end of it, but in my case, your Honours, the learned trial judge gave his reasons not for giving accident to the jury, and that is on page 58 of the application book at line 12.  His Honour had numerous discussions with the prosecutor at this stage about this.  He goes on:

This is a case where there’s a gun involved and I have never heard it raised before, what you have raised, and that’s why I didn’t give a definition of “accident” because he’s not responsible if he – it’s to be looked at from the other direction.

I would submit to the Court that where a trial judge gives a reasoning not for giving a defence, but would it not be reasonable to look at the reason, the reasoning was correct or incorrect. 

The next issue I wish to raise with the Court, and I suppose we have already touched on it in a way, and I think it can be related back to unwilled acts, not that I want to repeat it or go over that again, it is just that when I read the transcripts of Murray and Ugle that were available on the Internet, it occurred to me that when a jury is tentative about doing its part, it is as I said earlier, asked to do in a certain fashion, and that is, was it a willed act or an unwilled act?  Was it an accident or was it not an accident?  But when dealing with my matter, his Honour sort of started – he asked the jury on more than one occasion to consider wilful murder and if the Crown had not proved that, you would then go on to consider murder, and if the Crown had not proved that, you would go on to consider manslaughter through criminal negligence. 

I think this is what Justice Wheeler was referring to in her judgment at the bottom of page 178 and at page 179 of the application book.  There were numerous discussions between my counsel at trial and the honourable learned trial judge in relation to this at page 53 of the application book, as well as page 99.  I think he referred to it as his Honour was putting the cart before the horse, or putting intent before looking at whether it was willed or not, and subject to the negligent act, as well as the accident act, your Honours.

I would like now to just – another point in my application to this Court, and this is the topic of provocation, your Honour.

McHUGH J:   That was not raised below, was it?

MR AGNEW:   I concede that, your Honour, and it was only something I found after reading the transcripts of the hearing, and it has become apparent to me that this may very well be in issue as well, you know.  Now, they are found in the submissions in this application book and it is at page 204 of the application book at line 18.  The Crown has stated that both counsel consented to provocation going to the jury.  Well, in all due respect, your Honour, I say that is nonsense.  I say you only have to read the legal argument that starts on page 3 of the application book, and it is more than obvious both counsel feel that the analysis of the evidence, that it really had no place.

Even the honourable learned trial judge Wallwork states that he believed it was “anathema” to my case or to my defence – I am sorry, your Honour, page 3 at line 52, and on page 4 of the application book at line 3.  The trial judge goes on to say that personally he does not feel that that defence is suitable.  There are numerous talks about it being a red herring or an airy-fairy defence that really had no place going.  In his Honour’s words, it was apposite.  The prosecutor, Mr Pallaras, on page 5 of the application book at line 47 has the same opinion as my defence counsel.  He states: 

In relation to provocation, your Honour, I don’t have a different view or different analysis of the evidence to my friend. 

On page 6 of the application book at line 13 the learned trial judge clearly states he is “only interested in what an appeal court might do.”  On the same page 6, at line 18, there is another exchange between the prosecutor and the trial judge and I will read it to your Honours if you do not mind.  It says: 

Your Honour, I have recently read it and I accept the analysis my friend puts in terms of the inconsistency between that proposition and the defence of accident . . . 

and that it would, as your Honour says, be anathema to the defence and on the evidence ‑ ‑ ‑

WALLWORK J:   But that was the same in Van Den Hoek -

is how his Honour retarded.  Mr Pallaras then turned around and said:

Exactly.  That’s not the test unfortunately.

I have read Van Den Hoek, your Honours, and I understand it is an authority for provocation, but my understanding is that Van Den Hoek was one of self‑defence, mine was one of accident, but the facts of the two cases hardly compare.

I am not sure about this or what the courts think about this but I believe that if you are making acts and omissions to the fact that it was self‑defence, somewhere along those chains of events you can get to the point where it stops at becoming self‑defence either through the threats or the things that are being said or the danger to your life and it then becomes a provocation, so you might overstep the mark on the self‑defence, then you become provoked.  I am not sure if that is correct, but that is how I understand that that could be read with a self‑defence whereas in accident it is sort of going exactly against the opposite of what you are basing your defence on.

The learned trial judge, on page 34 of the application book at line 23 directs the jury on provocation and this direction goes for six pages, your Honour.

McHUGH J:   Sorry, what page was that, Mr Agnew?

MR AGNEW:   Page 34 of the application book, line 23.  This direction goes on for six pages and, as I understand it, it is correct at law but when my defence was one of unwilled acts and when you look at the directions as a whole or as a balance, the jury was only told on two occasions that an act or omission occurs independent of a person’s will.  The Court knows what will is, I now have an understanding of what will is, but what does the layperson or jury understand will to be without further direction or any further help.  And then to mention accident eight times, and we are talking in a very moderate sense, but the defence says it was by accident.  I have now dealt with accident – I will come to what accident means in a minute – it hardly seems balanced. 

When one reads the transcripts of the Court of Criminal Appeal hearing the person representing the Crown in that case was a Mr Stone.  He and Ms Murray had an exchange on what provocation was doing there and it is completely different to what is now in the application book.  He believed it had no place going.  He believed there was not offence there and there was far too much time spent on it.  Now, we have an application book where everyone is going, well, it was apt, it deserved to be there even though there was no evidence of it being there and we are going to spend all our time talking about it. 

I would suggest to the Court, at page 106 of the application book, at line 35, after questioning, being asked by the jury to please explain English murder, under provocation manslaughter, murder, the trial judge then gives some direction which I feel at law was wrong.  Could I just get a drink?

McHUGH J:   I think your time is up, Mr Agnew.

MR AGNEW:   I think I can finish this in a couple of minutes, your Honour.

McHUGH J:   Very well, then.

MR AGNEW:   Thank you, your Honour.  The trial judge gives them a response to their question.  He goes:

Manslaughter in a case like this is where he’s not guilty of wilful murder or murder but if you considered that he acted in a manner that was grossly or criminally negligent with such carelessness and negligence that he ought to be punished by the criminal law, you could find him guilty of manslaughter because of his negligent, criminal negligently handling of the firearm.  That would be manslaughter.  That’s how you would find manslaughter in a case like this and if you didn’t find manslaughter or murder or wilful murder, you would find him plain not guilty.

The point of contention I have with this, your Honour, is, as the trial judge alluded, they could get to manslaughter through a defence of accident subject to section 266 and I have no qualm with that.  But the jury could reject the possibility of it having occurred by an unwilled act or accident and finding a deliberate voluntary discharge of the firearm with no intent at causing any harm and that was another way they could get to manslaughter in a case like this.  If provocation should have, or as they contend, should have been there, then of course we are left with provocation.  So there are really three ways for them to get there. 

What we have here is a defence that is introduced by the judge against everyone’s better wishes.  Now we have a judge negating it, if I can say that, with respect.  What has happened, if I could draw the Court’s attention to page 111 of the application book, at line - there was going to be a redirection on defence that really had no place going to the jury.  The prosecution wants it all removed or any damage to the Crown’s case lessened.  On page 112, Mr Pallaras uses the term, “We don’t want the jury ‘chasing rabbits down hutches’”.  Well, it was a bit late for that. 

The prosecutor then goes on, on page 112 of the application book at line 34 and requests “to ask for a special verdict” in relation to a manslaughter conviction.  This can only be for one of two reasons, ie, they were going to appeal on the same ground that I am now talking to you about or, (b), they wanted to interfere in family matters in the law courts.

McHUGH J:   Well, I think you time is ‑ ‑ ‑

MR AGNEW:   I have just about finished, your Honour, and I have only got 30 seconds.

McHUGH J:   Right.  I will give you 30 seconds.

MR AGNEW:   Thank you, your Honour, and I really do appreciate the leniency.  So in the order we left with, admissions by both counsel, a learned trial judge and another counsel at the Court of Criminal Appeal that this defence should never have gone, this one of provocation.  Two, the prosecution feels that provocation should be left for no other reason really than to draw the jury’s attention away from what the real facts in issue were.  Three, the prosecution then requested it all be put back in perspective

and even asked for redirection although he did not get it and uses words like “chasing rabbits down hutches”.  Four, in the event that the verdict is one of manslaughter, can we have a special verdict and, five, now we are here in this Court, the Crown contends everything that happened during my trial, including the directions on unwilled acts and accident and provocation were fair and appropriate, even though we are left with this absurd verdict that was never argued or is not practical or logical given the calibre of the firearm in the circumstances in which they conducted their trial and the way we conducted ours.  I thank the Court.

McHUGH J:   Thank you, Mr Agnew.  Yes, Mr Cock.

MR COCK:   Thank you, your Honours.  I think, as the applicant has pointed out, the direction of the trial judge was, in fact, generous to him.  The applicant himself has identified a route by which manslaughter could have been delivered, which was not even left by the judge and I think Justice Anderson points that out, too.  It is our submission there is no question of ‑ ‑ ‑

KIRBY J:   Yes, but I am not so concerned about the provocation point but what do you say about the dissenting opinion of Justice Wheeler here.  In Western Australia the situation is a little different to other States of Australia.  You have wilful murder, murder, manslaughter, acquittal.  That is the hierarchy and I think the applicant put it pretty well, I thought, when he said the jury has excluded wilful murder and, therefore, by inference, it has excluded the suggestion that he put the gun in the pillow and went there with the deliberate intention of killing and, therefore, we are in the realm where, at least potentially, accident is a possible hypothesis.

In such a situation, why is it not arguable, as the applicant has put it, that it becomes very important that the trial judge should accurately explain and help the jury on what the meaning of accident is under the Code and yet the trial judge did not do that.  The directions on that were rather confused, I think.

MR COCK:   If the trial judge had done what the prosecutor asked, which was to, in fact, explain accident in the traditional formulation, in my submission, that would have advantaged the prosecution because it would have been quite apparent that the law, in fact, does not coincide with the somewhat wider community view of what an accident is and it was really for that reason that the prosecution sought to urge the trial judge to, in fact, leave a clear direction to the jury of what accident encompassed.

KIRBY J:   But what I take Justice Wheeler to be saying is, once you have, as it were, poisoned the well, you have raised this issue and then not explained it then the appellant has not really had the chance of having the jury directed so that the jury addresses its attention accurately to the factual issue, which they have to resolve, so that the legal issue is answered. 

MR COCK:   Yes, we acknowledge that that was the reasoning set out in her short judgment but our contention ‑ ‑ ‑

KIRBY J:   What is wrong with that reasoning?

MR COCK:   Because accident, on any proper review of the evidence, would not be available and that was certainly the clear view of the two judges in the majority.

KIRBY J:   Justice Wheeler, who would have known much more about the facts of the case, seemed to think that it was open because she says that it lost the applicant the opportunity of an acquittal.  I mean, at least theoretically, one could postulate the fact, once you exclude the deliberateness that is involved in the wilful murder you are into a lower range of intent and, therefore, we must assume the jury excluded the planned, premeditated and determined execution of his partner so that ‑ ‑ ‑

MR COCK:   We accept that.

KIRBY J:   That can be put to one side and, therefore, we are in the realm of what was the level of the intention and was it, at least possibly, an accident within the Code that the jury, in considering its alternative verdicts, really, according to Justice Wheeler, did not get the chance to focus on.

MR COCK:   But if the jury had been told properly that an accident is something which is not intended, not foreseen and not reasonably foreseeable, in the context of a proper direction about which there is no criticism that only entitled the jury to return a verdict of guilty of murder where there was an intention in the mind of the accused to cause grievous bodily harm, that would not necessarily be inconsistent with accident properly explained.  That is our first contention.

KIRBY J:   But it still would be open to the jury to take the view – I mean the accused case was that he simply took it there to frighten his partner to get the name of the male companion of the partner so he could go and dust him up.  Now, the question is whether, in the circumstances that occurred in the evidence, fully understood, it would have been open to the jury to take the view that that was what he intended and that the gun went off whilst they were having their disputes concerning whether she would tell him that person’s address.

MR COCK:   That may be right but for the fact that the verdict of guilty to murder means the jury must have been satisfied beyond all reasonable doubt that the applicant had an intention to cause grievous bodily harm to the victim and, in my submission, that finding is inconsistent with acceptance of accident if accident was properly explained, which it was not. 

KIRBY J:   I am with Justice Wheeler, I must admit.  It is a sort of logical catch-22.  Unless you get it properly explained then you are not addressing your mind to one of the possibilities which is open.  It is simply left at the bottom of the scale that you acquit if you do not reach the position higher on the scale.  But Justice Wheeler’s point is that unless you have explained to you, as the Code provides, what an accident is, okay let it be a difficult thing for the accused to establish but, unless you have that explained, the accused really loses the chance of the jury passing its mind upon whether this was an accident or not.  That is the point Justice Wheeler, I think, is making that, logically, the law has to be explained so that the jury can reach its conclusion at least addressing some moments of its time to the possibility that this was an accident within the Code, wide though that accident is.

MR COCK:   Could I respond this way, that her Honour was in no greater position than the other two members of the court to evaluate the evidence and, more fundamentally, Justice Murray extensively reviewed the evidence and set out his review in his written reasons, and Justice Anderson’s judgment was somewhat shorter, but again not as short as Justice Wheeler’s.  Each of the two ‑ ‑ ‑

KIRBY J:   He takes a somewhat different line, does he not, really, Justice Anderson?

MR COCK:   He does, yes.

KIRBY J:   So we have a conviction which is upheld by judges who are approaching the legal requirements in a somewhat different way and a dissenting judge who, I think, raises a logical quandary.

MR COCK:   Justice Anderson took the view that accident simply was not even open on the facts.  On any rational view of the facts, accident was not open and her Honour ‑ ‑ ‑

McHUGH J:   The accused was represented by a very experienced criminal advocate who specifically asked that the judge not direct about accident.

MR COCK:   With respect, your Honour, that is true because he recognised, as we submit, that a direction on accident would have, in fact, been favourable to the prosecution.  As your Honours know, it was the prosecution that was urging his Honour to properly explain accident and take it out of the realms of the concept that the community might generally understand by their representatives sitting in the jury.

KIRBY J:   I have sat here so many times where the Crown, and I think properly, has sought to have judges give directions of law and accused have said not, and then it comes up here and they say, “Oh well, we think we should have”, but the fact is that, in a sense, the jury has performed its task without having the legal construct, within which it is operating, accurately explained to it, all on this basis that the jury cannot be trusted to apply the Code correctly.

McHUGH J:   In one sense it raises a Gilbert point – do you know Gilbert, the case from Queensland, a manslaughter murder, where I was a dissenter - but here, the jury, by its verdict must have been satisfied beyond reasonable doubt that the applicant had been criminally negligent, grossly negligent, or reckless in the handling of the gun before it fired and, on that hypothesis, accident does not arise so the argument seems to be, nevertheless, if the jury had been directed about accident, they may have not made that finding which seems to be implicit in their verdict.  Do you agree with that analysis, Mr Cock?

MR COCK:   Yes, your Honour, we would adopt precisely what your Honour has put.  That is part of our argument.

KIRBY J:   It is a question of whether you take the understanding of the meaning of accident into mind in coming to the conclusion that the jury did.  This is Justice Wheeler’s point.  It is a logical point.  It is a precondition that you put into your thinking a correct understanding of what accident is before you reach the conclusion of whether the intent is there to sustain the verdict of murder and I must confess that I think there is a logical unanswerability in what Justice Wheeler has said.  However, I think we understand the point.

MR COCK:   Could we finally observe, your Honours, that Justice Wheeler in her three-paragraph judgment does not even say ‑ ‑ ‑

KIRBY J:   They do not get better because they are longer, necessarily.

MR COCK:   No, but she does not actually analyse the facts and explain a basis upon which she felt that accident was open.

KIRBY J:   She accepts the facts as they are explained in the judgment of Justice Murray which was very thorough as usual.

MR COCK:   It was, yes, but that would tend, in our submission, to reinforce the observation of Justice Anderson that accident was not really

open on the facts where all those preliminary elements to making that firearm able to fire ‑ ‑ ‑

KIRBY J:   In the theory of our legal system that is a matter for a jury to pass upon, not for judges, though judges have to do it in the retrospective courts of criminal appeal.

MR COCK:   Your Honour, I am just seeking to argue why it is that your Honours should not necessarily follow their Honours’ position.  If your Honours please.

KIRBY J:   I understand your point.  It is a question of whether you are a logician or not.

McHUGH J:   Yes.  Yes, Mr Agnew, do you wish to make any submissions in reply to what Mr Cock has just put.  You have five minutes, I think, to say it.

MR AGNEW:   No, thank you, your Honour.  I think I can rely on what I have said.  I hope I have made my case out.  Thank you.

McHUGH J:   Yes, thank you, Mr Agnew. 

In this matter, the applicant seeks special leave to appeal against his conviction.  The principal ground is that the trial judge did not explain the meaning of the term “accident” in the Code.  The verdict of the jury necessarily involves the conclusion that the jury was convinced beyond reasonable doubt that the applicant had been criminally negligent, grossly negligent or reckless in his handling of the gun prior to its firing, which caused the death of the deceased.  That finding of the jury is necessarily and logically inconsistent with any verdict of accident.  The jury having found that the applicant had discharged the firearm in the manner that I have described, must have, by implication, negated any issue of accident.  The failure to explain that term is therefore irrelevant. 

That there has been no miscarriage of justice, having regard to the way the case was conducted, is reinforced by the fact that he was represented at the trial by an extremely experienced criminal lawyer, who specifically asked the judge not to give any direction as to the meaning of “accident”.  It seems reasonable to think that that experienced counsel took the view that such a direction would not improve the applicant’s prospects of obtaining an acquittal.  Nothing else in the case warrants the grant of special leave. 

In the circumstances, a majority of the Court is of the opinion that there is no ground sufficient to warrant the grant of special leave.  Accordingly, the application is dismissed by a majority. 

KIRBY J:   I would grant special leave.  I agree in the dissenting reasons of Justice Wheeler in the Court of Criminal Appeal.  Before the verdict of guilty of murder was arrived at, the jury were entitled, in my view, to have “accident” explained to them.  The issue had been raised, but the jury never received instruction on the meaning of “accident”.  Therefore, logically, they came to their conclusion and their verdict without a clear understanding of the relevant provisions of the Code.  The fact that counsel asked that the matter not be elaborated does not relieve the judge or the Court of Criminal Appeal or this Court of the obligation to ensure that the law is properly applied. 

Although a prisoner untrained in the law, Mr Agnew presented his case on the issue of “accident” effectively, temperately and politely.  He provided assistance to the Court.  This is another illustration of the fact that the Court is advantaged where a person, who is a prisoner and cannot have counsel before the Court, is brought to the Court to put his case:  cf Cameron v The Queen (2002) 209 CLR 339 at 369 to 371 [96] to [98]; Muir v The Queen (2004) 79 ALJR 780 at 783 to 784 [20] to [22]; 206 ALR 189 at 193. At least I considered that Mr Agnew put his case so well that I would have granted special leave.

AT 12.39 PM THE MATTER WAS CONCLUDED