Ames v The Queen

[2013] HCATrans 214

[2013] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A7 of 2013

B e t w e e n -

DANIEL TROY AMES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 11 SEPTEMBER 2013, AT 10.33 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the applicant.  (instructed by Patsouris & Associates).

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MS H.H.L. DUONG, for the respondent.  (instructed by the Director of Public Prosecutions (SA).

FRENCH CJ:   Thank you.

MR WALKER:   Your Honour, at the outset there is an application by us for an extension of time for the application for special leave which I understand my learned friend does not oppose.

MR HINTON:   That is correct.

FRENCH CJ:   Thank you.  Time will be extended.  Yes, Mr Walker?

MR WALKER:   If it please the Court.  Your Honours, at the foot of page 35 to the top of page 36 of the application book, it is revealed in the remarks on sentencing by the learned trial judge just what had not been done when his Honour made findings for the purposes of conviction.  For the purposes of conviction, as was conceded by the respondent in the Court of Criminal Appeal and it is clear from a reading of the conviction reasons, no finding of any kind was made about the state of mind, let alone about how it matched one of the requisite forms of intention necessary to support a conviction of murder.  That is a conviction of murder as opposed perhaps to one of the ways in which a conviction for manslaughter would have been proper or perhaps supporting an acquittal completely.

FRENCH CJ:   There is no suggestion, of course, having regard to what his Honour said at page 11 that he was unconscious of the requirement.

MR WALKER:   Quite so.  I will come back to that, to the way in which what is said in the dot points at page 11 in paragraph 43 in just one moment but there is certainly no suggestion that it was not explicitly known.  I have to both deal with that and turn it to some advantage, as I will in a moment.  At pages 35 and 36, one knows in the remarks on sentencing that there was a position taken which involved, noticing that there were some matters that could not be taken beyond speculation, that there was a step taken in relation to the state of mind for the purpose of sentencing.

It being taken at that stage, of course, had this significance; that the silence of the prisoner was held against him in the way in which the sentencing ran.  That could not have been done, of course, in relation to conviction.  When one then goes to page 51 of the application book, in Justice Gray’s reasons in the Court of Criminal Appeal at paragraphs ‑ ‑ ‑

FRENCH CJ:   What is the relevance for sentencing of an inference that the applicant had an intention to kill?

MR WALKER:   Your Honour, the relevance is rather the distinction between an intention to kill and what might arguably be a less culpable state of mind such as an awareness of the probability of death or grievous bodily harm without a positive intent to kill.  The latter would support a murder conviction ‑ ‑ ‑

FRENCH CJ:   Yes.

MR WALKER:   ‑ ‑ ‑ but as his Honour pointed out at the foot of page 35, for the purpose of fixing the non‑parole period within the mandatory life sentence, the different state of mind involved in risky as opposed to deliberate conduct could have produced an effect on that non‑parole period.  That is certainly how his Honour saw the relevance of that and we do not suggest there could be any other relevance.  Of course, as we note, if I could just jump ahead to ‑ ‑ ‑

FRENCH CJ:   You would say that does not disclose the basis upon which his Honour convicted?

MR WALKER:   Quite.  Exactly so, and the importance of the state of mind can be gauged from the State of the law that governs.  We quote the relevant propositions on page 79 in our paragraph 27 by reference to Crabbe’s Case 156 CLR 464 but, in particular, the alternative also sufficient to support murder, the alternative state of mind in relation to taking a risk is:

does an act causing death knowing that it is probable –

you note our parenthesis by way of emphasis –

(as distinct from possible but not likely) that the act will cause death –

Now, this was a circumstantial case where inferential reasoning was required in order, beyond reasonable doubt, as his Honour correctly and repeatedly directed himself, to reach the conviction at all or a conviction of murder as opposed to a conviction for manslaughter.  One does not find in the conviction reasons any explanation at all, either of what the state of mind was that was found to meet that prerequisite for murder, nor why that which would be sufficient for manslaughter but not for murder was not a preferred or proper inference beyond reasonable doubt.  There is no discussion because there is no finding about that.  As I say ‑ ‑ ‑

KIEFEL J:   Mr Walker, intention was not a live issue at trial, was it?

MR WALKER:   Your Honour, the notion of something not being a live issue needs to be ‑ ‑ ‑

KIEFEL J:   I appreciate that it is an element of the offence and remains so, but it was not a live issue; this was a judge alone trial.

MR WALKER:   Your Honour is right, with respect.  I think your Honour is quoting from the Full Court in that.  It was not a live issue in the sense that one does not find battlelines spoken to by prosecution and defence in the submissions.  However, it was, of course, an issue whether the epithet live matters is to be doubted.  It was an issue because of its prime identity as an element at the highest conceptual level for the offence charged to which the plea was not guilty.

Now, that means, as Justice Gray pointed out in paragraph 25 on page 51 of the application book, that had there been a jury, of course the jury would need to have been directed about that issue, be it live or not.  In other words, it might be an issue upon which a judge would be entitled to say to the jury, you may think there would be little difficulty in that element because counsel for the defence has not addressed you on it but it is a matter for you.  Whatever the jury direction, in our submission, in a bench trial there has to be findings and there have to be reasons.  There was neither finding nor reasons and that is why the normative statement is made by Justice Gray in paragraph 25 that “the trial Judge should have made a specific finding”.

Now, one cannot, in our submission, without doing too much violence with the requirement for a judge to make findings on every necessary element and to give reasons, one cannot, without doing violence to that requirement of the law, say that a judge should have done something, a judge did not do it, a judge must have known he had to do it ‑ see page 11 ‑ and therefore he is to be taken to have done it implicitly.  That, in our submission, is ‑ ‑ ‑

KIEFEL J:   Mr Walker, in the facts of this case, once the judge found beyond reasonable doubt that the applicant was present at the premises where his uncle was shot, at the time he was shot, that he was the only person in the vicinity, the evidence proved beyond reasonable doubt that he was there, the uncle was shot with one bullet to the head at a range of just over a metre, why is that not sufficient as the Court of Appeal held for it to be necessarily implied from those findings, or follow from those findings, the necessary intention?  What alternative is there?

MR WALKER:   Your Honour, it is, with respect, clear that what your Honour has just asked me is what was being referred to by Justice David on page 65 of the application book in paragraph 87, and your Honours no doubt have in mind his Honour’s expression, “the inexorable conclusion”.  In our submission, it is to be borne in mind that there were, however, matters that the judge quite properly regarded as in the realm of speculation rather than inference beyond reasonable doubt.  I have already drawn to attention some of the matters noted by his Honour in the remarks on sentencing where he was taking the silence of the prisoner against the prisoner at the top of page 36 that included was the deceased kneeling, as it were, execution style; it included what was the firearm brought in by the accused or not ‑ ‑ ‑

KIEFEL J:   The gunshot residue issue.  Yes, all of those matters were properly balanced by his Honour.

MR WALKER:   Yes, all of those.  What it means is that what your Honour has put to me, what Justice David must have had in mind, is the notion that one could infer ‑ I will call it aiming, accurate aiming ‑ a state of mind to be inferred from that plus the result of the shot to the head and the virtually instantaneous death.  That, in our submission, is a matter of inferential reasoning far from inexorable.  How one would ever come to the conclusion that a shot to the head is the result of a deliberate aim, unless there be residue marks which make that physically irresistible is, in our submission, a matter for finding, it is a matter for reasons to be given and none of that was done.

It is for those reasons, in our submission, that we have presented by the notion of implicit findings the idea that without having to spell out the inferences from where the bullet entered the head that, nonetheless, the judge is to be taken to have found that there was one or other of the requisite forms of state of mind, intention or knowledge of probable consequence, is sufficient to support murder; as I say, to support murder as opposed to manslaughter.

FRENCH CJ:   This is not an argument, is it, about inadequacy of the reasons so much as whether or not the judge can properly be said to have ‑ or at least whether or not the Full Court was correct to infer, or is open to the Full Court to infer, that the judge had made the requisite finding?

MR WALKER:   Yes, your Honour.

FRENCH CJ:   I am looking at paragraph 26 of Justice Gray at page 51 and paragraph 87 of Justice David at page 65, and I suppose that leads on to the question is this really a debate about whether the Full Court was warranted in drawing an inference that the judge had in truth made the requisite finding?

MR WALKER:   Yes, your Honour.  It is, yes.  I would put it slightly differently, namely, that were their Honours correct to read reasons which they all considered should have had specific findings as nonetheless involving implicitly a finding of a requisite state of mind to support murder.  One finds that notion at the top of page 52 in paragraph 26 to which your Honour the Chief Justice has just drawn attention and, of course, it is found in the third sentence of Justice David’s paragraph 87 on page 65.  It does come down to that, yes.

FRENCH CJ:   I suppose what I am putting to you, Mr Walker, is this.  Is there a special leave point in an argument about the merit of the inferences drawn by the Full Court about whether or not the judge had in fact made the finding?

MR WALKER:   Yes, your Honour, and it is this.  This is not simply an argument about the meaning of words, any words, such as one might find as an excellent reason to refuse special leave in the case of a contract and the wording of a clause in a contract.  This is examination at the appellate level of the adequacy of the discharge of the fundamental obligation of the trial judge to consider the case, the evidence, the argument and the issues, even those not fought as live issues required in order to support conviction and, in particular, to choose, say, between murder or manslaughter.  Those are fundamental duties of the judge regardless of, as it were, framing of issues. 

Second, it raises the special leave aspect of the appellate function when the appellate court sees that there is missing from the findings expressed by the reasons of the convicting court of prerequisites to support the relevant conviction.  Next, whether or not it can be said, contrary to what is usually regarded as the test of what has been done by a court, namely, what does the court say in its reasons it has done and not done?  It is a departure from that for the appellate court to say, this judge directed himself as to the issues to be addressed.

He addressed some of them in explicit reasons, did not address this one, and instead of concluding that there therefore has been a departure from what was necessary ‑ it would not be the first time a properly directed, self‑directed judge makes an error about something that needs to have been done and was understood needed to be done ‑ instead of the appellate court saying, here is error that needs correction, the appellate court says, because this is an omission it ought to be supplied and, in our submission, that is

well down a slippery slope in the proper appellate approach to the appropriate standard, discharging the fundamental obligation of a judge at a bench trial.

It is to be recalled, this was a charge of murder.  The sentence is mandatory life.  The non‑parole period is 24 years.  In our submission, the justice in the particular case, given the nature of the issue which was left unsaid in the trial reasons, puts particular focus on the failure of the appellate court to apply the appropriate standard which must be a standard of explicit findings of fact.  One does not make a finding of fact, surely, by saying that the probanda of the cause of action or the crime are X, Y and Z and then immediately going to the bottom line and saying, and I find the cause of action made out or the offence proved.

That, in our submission, is not the finding of fact with reasons but rather the request, as it were, by a first instance court for faith to be given to the proposition that without anyone, including the accused, knowing how it has been done, that all the requisite facts have been found and for good reason.  In our submission, that is why it is a special leave point as to the appropriate mode of appellate supervision of this fundamental element of a trial judge’s duty.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.   The Court will adjourn briefly to consider what course it should take.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.53 AM:

FRENCH CJ:   We will not need to trouble you, Mr Solicitor.

The applicant for special leave was convicted of the murder of his uncle in the Supreme Court of South Australia.  His uncle was killed by a single shot to the head.  The evidence established that he was present at the premises where his uncle was shot at the time of his uncle’s death and had been there for some hours.  No other person came to the premises after the applicant left and before the body of the uncle was discovered.  The applicant’s trial was conducted without a jury.  The trial judge gave detailed reasons but did not make a finding as to intent.

The Court of Criminal Appeal held that such a finding was to be inferred given the circumstances of the case and because the trial judge had directed himself as to that element.  In our opinion, that inference was open to the Court of Criminal Appeal.  We agree with the observation of the Court of Criminal Appeal that it would have been preferable for the trial judge to have made that finding in his reasons; however, there seems to be no reason to doubt the correctness of the view of the Court of Criminal Appeal, in particular because of the manner in which the deceased was killed.  No special leave point is disclosed in relation to that aspect of the application. 

The applicant’s other proposed ground of appeal was that the trial judge should have considered the alternative of manslaughter, but in this case, as the trial judge observed, in the absence of evidence from the accused, that alternative was not presented.  Special leave will be refused.

The Court will now adjourn to reconstitute.

AT 10.55 AM THE MATTER WAS CONCLUDED