Aiton v The Queen

[1994] HCATrans 374

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml32 of 1993

B e t w e e n -

PAUL LESLIE AITON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

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TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 11.33 AM

Copyright in the High Court of Australia
MR D.G. WRAITH: If the Court pleases, I appear for the

applicant. (instructed by Oakley Thompson & Co)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

MS K.E. JUDD for the respondent. (instructed by

the Director of Public Prosecutions (Victoria))

MASON CJ:	Mr Wraith.
MR WRAITH:	If I may put it succinctly, if the Court

pleases - - -

MASON CJ: That is what we were hoping you would do,

Mr Wraith.

MR WRAITH:  This is a case of a miscarriage because the

facts of this case were not appropriate for the
leaving to the jury of reckless murder and the
Court of Criminal Appeal erred in not so finding.

I remind the Court that this Court in Pemble's case - or Sir Garfield Barwick in Pemble's case -

made it clear, and no other decision of this Court

has derogated from it, that it should only be left

in exceptional or unusual circumstances. It is my

submission that these were not exceptional and

unusual circumstances. They were emotive

circumstances, to be sure, and the learned trial

judge should have guarded against that in the

circumstances by not leaving this concept in this

particular case.

DAWSON J: Does the court use those words, "exceptional

circumstances"?

MR WRAITH: Unusual. Sir Garfield Barwick used the word

"unusual".

GAUDRON J: But they are words that are descriptive of the

case rather than a statement of the principle. If
the issue arises, it has to be left.	It will be an

unusual case in which it arises, but if it arises,

so be it. Is that not how it works?

MR WRAITH: That is right.

GAUDRON J: And did the issue arise?

MR WRAITH: It is submitted no.

GAUDRON J: Notwithstanding that you denied specific intent.

MR WRAITH: He denied specific intent. The evidence was all one way that when one looked at the last incident -

and I appreciate that the Court ·has read the

material - there are a number of incidents which

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could have been said to have been abusive in the

past, either on his own admissions to workmen or on
other evidence, but when one came to look at the

final incident it was quite distinct and separate

and discrete. It was a situation where it was not

a case where one would have expected an intentional

murder to occur and, in fact, his explanation

finally given, on two occasions, two separate

occasions, to the police and to some social

workers, were that he lost control in circumstances

where there had been certain incidents that

proceeded that on the morning. This, after all,

was an occasion where there was a garage sale,
where people were coming and going; the applicant

had had an argument with a workman over a,

cheque; things of that kind; where the evidence was

all one way, it would be submitted, that he lost

control. And of course it follows from that that I

must submit that, in these particular

circumstances, it is entirely inappropriate to

leave that concept.

. What I then wanted to do with the Court was to

very briefly refer to the authorities that I have

placed in the list - - -

DAWSON J:  Why was it - if the jury did not accept that he

lost control and that he had no intent, the

question arose did he have intent - - -

MR WRAITH:  Of a kind?

DAWSON J: Yes, and then the further question - he says he

did not but that is a question for the jury - and then when you look at the nature.of the injuries,

why is it not a question whether anyone who had

inflicted those injuries on a child of this age

must at least have been acting recklessly - either

have intended or be reckless?

MR WRAITH:  The flaw in that reasoning, with respect, is

simply this, that those injuries would not have

been apparent to him after the striking of the

blow •

DAWSON J: No, but the injuries demonstrate the degree of

force.

MR WRAITH:  A degree of force, yes, of two, perhaps three

blows. That was the extent -

DAWSON J: Very heavy blows on a small child.

MR WRAITH: Yes, in circumstances where there is a loss of

self-control in a very short space of time. It is

not a Jakac case, which is the only case that has a

remote parallel to these factual situations in

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which a court - and after all it was the Court of

Criminal Appeal in Victoria - determined that that

was an appropriate situation for reckless murder.

There were 40 blows in that case, not all with the fist, some could have been a kick and so on. This

was two or three blows, in a very short space of

time, where the evidence - certainly only from the
applicant - was that he lost control because of

various incidents which had shortly preceded that.

In other words, it is not an appropriate

case - and he would not have been aware, it is

submitted, that what he did in those circumstances

had caused the very serious injury which

eventuated.

DAWSON J:  It seems to me it is a matter for the jury and it

is a situation in which, if a man inflicts blows of

that kind, he either intends to do serious bodily

injury or he does not, he is reckless. Or, of

course, you can say he lost control, but that

obviously was rejected by the jury.

MR WRAITH:  I find great difficulty, with respect, in

following why Your Honour says it must be open that

reckless - the concept of recklessness was - - -

DAWSON J: Because of the nature of the injuries indicates

the degree of force and the degree of force - - -

MR WRAITH:  But Your Honour keeps returning to the injuries.

It is what the man did.	I agree the force is one
thing - - -

DAWSON J:  The injuries do indicate what he did, do they

not?

MR WRAITH: In one sense. But then Your Honour is isolating

the other evidence which is, certainly from his own

lips, but the other evidence is that on two

occasions he told people in authority that he lost

control. The other danger that is coupled with all

this is that His Honour the learned trial judge

said that manslaughter is a much lesser or lesser

concept than murder.

GAUDRON J: But that was in a context in which the trial

judge was emphasizing the need for different states

of mind for the two kinds; emphasizing the
seriousness of the task that the jury was faced

with when determining the state of mind.

MR WRAITH:  Maybe so but, with respect, it is put this way,

that this was a case where the jury were faced with

quite emotive evidence of abuse, perhaps prolonged

abuse. They had to deal with that and they had to

deal with an isolated incident which may be, and

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arguably was, a quite different incident to the

other incidents that preceded it.	I hope I am
making myself clear to the Court.

They may have felt that morally this man

deserved to be punished as a murderer, rather as a

person who committed manslaughter, because they

were told by the judge that manslaughter was a much

lesser crime. In other words, the circumstances, the totality of the circumstances, were such that their reasoning could have been infected by the

statement that His Honour made, that it was a much

lesser crime.

MASON CJ: But that is all speculation.

MR WRAITH:  I suppose it is, but that is the problem which

the Court of Criminal Appeal, it is submitted, did

not redress in this particular case. And leaving a

concept like reckless murder laid it open to a jury

to do just that.

DAWSON J: To do just what?

MR WRAITH:  Find him guilty of, as they might see it, a

third tier of murder; a lesser kind of murder,
because after all, the trial judge did deal with it
in each case as a last proposition and may have,
although I cannot recall, put it as a third type of

murder.

MASON CJ: But you do not contest, do you, that the trial

judge correctly instructed the jury on the elements

of reckless murder?

MR WRAITH:	No, I do not contest that. But what I do say is that all he said, when joining the evidence to that
direction, was that he summarized counsel's
respective submissions to the jury. He put on the
one hand the Crown's submission that the nature of
the blows was such that, of course, he must have
adverted to the risk. Then he put the contrary proposition that counsel for the defence had put,
that this happened in a split second and so on.

But the difficulty is that it may have led

the jury, in this particular case, to compromise.

DAWSON J: You have to assume in an appeal court that the

jury followed the judge's instructions, unless
there is some evidence that they did not. And if
he correctly identified the elements of the

offences, that is it.

MR WRAITH:  He correctly identified the elements of the

offence, but the only evidence, with respect, that

could be shown to have any relevance to that

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particular type of murder was the evidence of the

nature of the injuries and he said he lost control.

That is all there was. So it meant - - -

DAWSON J:  And that was his defence, that he did not

intend - have the necessary intention.

MR WRAITH:	And so what I submit to this Court is that in practically every case, which is the reverse of the
caution in Pemble, a trial judge will have to leave
reckless murder from now on; will have to leave reckless murder where there have been blows. It is
my respectful submission that was not the intention
of this Court in Pemble.  It should have only been
put in unusual circumstances.  Why are these
unusual circumstances? They are not? It may be a
bad case of manslaughter but it is not reckless
murder. In other words, putting it simply - - -

GAUDRON J: That sounds to me very much like a jury

submission. It fails to address the question: what

issues arose?

MR WRAITH:  It is submitted that artificiality crept in in

this particular case by the imposition upon the

jury of this concept and the danger was they would

use it wrongly because they would feel that this

man deserves something more than manslaughter.

I do not know whether the Court would be

assisted by referring to the various authorities

but one, for example, can understand how reckless

murder would have been left in the case of Baughey.

That was a case, of course, where the accused was a

doctor - - -

MASON CJ: But these authorities are all designed to

demonstrate what is unusual and what is not

unusual.

MR WRAITH:  That is so.

MASON CJ:  They are really not going to help us very much.

MR WRAITH: But Boughey's case does show - - -

MASON CJ: Well, that certainly is unusual, but the fact

that that is unusual does not demonstrate that this

is not unusual.

MR WRAITH:  What I submit is that if one looks at the

example Sir Douglas Menzies gave in Pemble, if one

looks at Boughey's case and so on, you will find in

those circumstances unusual circumstances.

Aiton 6 10/6/94

MASON CJ: Yes, but you cannot have a principle of law as to

what is usual and what is unusual. That cannot be

the subject of a rule of law.

MR WRAITH: With respect, I understand what Your Honour puts

to me. But what I do say is here, that if this

Court does not intervene we will have trial judges

in Victoria, and perhaps elsewhere, leaving in

every case of murder - - -

MASON CJ:  I suppose we cannot answer for what trial judges

will do in Victoria, Mr Wraith, but I would be

surprised if that occurs.

MR WRAITH:	The other matter is simply this, the question of sentence, if I may move to that. There is only one
submission I can put, that the Court in Crabbe was
not saying that once a person was found to be
guilty of reckless murder he must necessarily
receive punishment in line with cases of
intentional murder and that what has happened here,
the Court of Criminal Appeal has not addressed that
concept or that subject and in fact allowed to
remain a sentence which, on its own statement, was
high. If the Court pleases.

MASON CJ:  Thank you, Mr Wraith. The Court need not trouble

you, Mr Bongiorno.

The Court is of the view that the decisions of

the Court of Criminal Appeal, both with respect to
conviction and sentence, are not attended with

sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

AT 11.47 AM THE MATTER WAS ADJOURNED SINE DIE

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