Barden v The Queen

[2012] HCATrans 27

[2012] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 2011

B e t w e e n -

TYSON ALFRED BARDEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 10 FEBRUARY 2012, AT 1.59 PM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May it please the Court, I appear with my colleague, MR E.P. Mac GIOLLA RI, for the applicant.  (instructed by Fisher Dore Lawyers)

MR M.R. BYRNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIEFEL J:   Thank you.

MR M.J. BYRNE:   Your Honours, the application for special leave is founded upon the proposition that the applicant, aged 19 at the relevant time, has suffered a personal miscarriage of justice.  We say that the miscarriage of justice arises through direction given in response to a question by the jury on a central and critical issue in the trial on the charge of murder.  That issue was the nature of the intention required in order to return a verdict of guilty of murder in the circumstances of this case. 

Indeed, whilst it is clear that a person cannot have an intention to cause an unforeseen outcome, the jury needed to be directed in unambiguous terms that such was the law and that the law required, for there to be a conviction for murder, for them to be satisfied beyond reasonable doubt that the applicant had the specific subjective intention to cause bodily harm. 

The impugned direction which was followed by a guilty verdict within 25 minutes did not, we respectfully submit, properly put the issues before the jury.  The direction followed a question by the jury which was in strong and clear terms.  May we take your Honours immediately to that?  It appears, unfortunately not as part of the transcript at the beginning of the application book, but it appears in the judgment of the members of the Court of Appeal, and the reference we take your Honours to is page 44 of the application book, in paragraphs [21] and [22].  Your Honours will see the question in paragraph [21] is in these terms – and this is why we say it is strong and clear terms:

“Would ignorance of the consequences of his actions mean intent could not be GBH -

or grievous bodily harm.  The answer to the question, we respectfully again submit, was neither strong nor clear.  Indeed, our proposition, which we put forward to found the grant of special leave, is it was misleading.  We take your Honours, particularly, to two aspects of that answer and we will return to this shortly if necessary.  This was a direction in response to that question.  It is the last thing, effectively, the jury hear.  It is a direction which, in the second line, says this:

It’s possible to do GBH without intending to do so.

Then in the paragraph in the middle, it answers the two propositions which the jury are seeking, namely ignorance of the consequences by terms using appreciation of “potential” consequences.  We say the error by the majority of the Court of Appeal can be appreciated by reference to two passages in the judgments.  The first of those is in the dissenting of her Honour the President and the second is in the ultimate reasoning of the majority.  For the first can we take your Honours to page 45 of the application book, in particular paragraph [27] and specifically to the passages, the first commencing at about line 35 commencing:

It is the italicised middle paragraph that is problematic.  It, too, is in its terms correct.  But the problem is that, in the absence of further explanation, it suggests that, conversely, if the appellant appreciated that a potential consequence of his assault on the deceased was that he could do grievous bodily harm, then he intended to inflict grievous bodily harm.  This is clearly wrong.

KIEFEL J:   How would you explain what her Honour inferred from the italicised part of the answer given by the trial judge as potentially conveying that?  How do you understand her Honour may have arrived at that point?

MR M.J. BYRNE:   Her Honour, if we may answer the question in this way, answers that question later in that same paragraph herself, to use the judgment terms rather than ours.  Commencing at about line 43 her Honour said:

The element of intention does not equate to a mere awareness at the time of the assault that grievous bodily harm might follow from the assault.  After the italicised middle paragraph of the impugned redirection, the judge should have instructed the jury that, before convicting the appellant of murder, they had to be satisfied beyond reasonable doubt that the appellant actually intended to do some grievous bodily harm at the time he assaulted the deceased –

So the complaint, to answer your Honour Justice Kiefel ‑ ‑ ‑

KIEFEL J:   But is not the direction given then rather more favourable to the accused rather than the other way?

MR M.J. BYRNE:   It is a question of construction of the direction.  If we can take your Honours back to the preceding page to the terms of the direction, if someone does not “appreciate that a potential consequence” – the way her Honour the President reads that in the converse way is that if someone does appreciate that a potential consequence, then that can lead to a conviction for murder.  We adopt, with respect, what the President has said that such an interpretation is wrong fundamentally as a question of law.

BELL J:   Is the difficulty with that that the judge did not say that if a person appreciates a potential consequence of what he is doing is the infliction of grievous bodily harm then he is guilty of murder or anything like that?  If one looks at the response to the jury’s question it commences with a reiteration of the direction earlier given that it was necessary that the jury be satisfied beyond reasonable doubt that the appellant intended to do grievous bodily harm.  It is pointed out to the jury that a person can inflict grievous bodily harm without the possession of that intention, and that if a person does not have an appreciation of the potential consequences of what he is doing, being the infliction of grievous bodily harm, he will not have the necessary intention.  Now, how, out of all of that is it said that there was an error?

MR M.J. BYRNE:   It is said in this way, that the question asked by the jury was a blunt one.  It should have received a blunt and direct answer.

BELL J:   Can I take this up with you, just dealing with the first premise of that proposition.  There are difficulties in, as it were, construing the terms of a request by the jury for further assistance.  One does not know whether one juror had a particular concern, whether all of them wanted elucidation on a point, one simply does not know, Mr Byrne ‑ ‑ ‑

MR M.J. BYRNE:   That is correct, your Honour.

BELL J:   ‑ ‑ ‑but how is the answer to the question:  would ignorance of the consequences of his actions mean intent could not be grievous bodily harm, how is the answer to that question given in the succeeding three paragraphs of the direction wrong?

MR M.J. BYRNE:   We cannot say, and this has been conceded long before we get to this Court, that in their terms the three paragraphs of the redirection are correct as statements of law.  What we put forward as the principle, though, and the particular principle as to the miscarriage of the personal nature of this applicant is that the question was one which was obviously concerning one or more members of the jury. 

It was not helpful to that or those members of the jury to introduce for the first time terms such as “appreciation of potentials”, rather because that opens up as her Honour the President in the passage we have taken your Honour to, what she calls the converse, and it must be said – and underlying of course the concept that juries understand and act upon directions, the reality of a criminal trial such as this is that after they have sat through days of evidence and a summing‑up has concluded that morning, they ask a very specific question and get an answer which, with respect, requires some analysis even sitting down and reading it a number of times. 

For a jury hearing that once in the context of coming back into court and it uses phrases such as “It is possible to do GBH without intending to do so” and then “If someone does not appreciate the potential consequence of what one is doing would result in GBH, you cannot have the intention”, those are not easy concepts for a jury on the run to appreciate, particularly where one uses – and I repeat myself here – terms of “appreciation” and “potential”.

BELL J:   If the middle paragraph of the redirection had read, “If someone is not aware that a consequence of what he is doing is that he will inflict GBH on the victim, et cetera”, would that take away your complaint concerning the adequacy of the direction?

MR M.J. BYRNE:   If it was as in the phrase your Honour Justice Bell puts, I have little to quibble about.  That would have been a direct answer to the question posed by the jury.

BELL J:   For my part, I have difficulty seeing how the inclusion of the words “appreciation” and “potential” invite consideration of the converse in a way harmful to the applicant when you acknowledge that without those words there would be no basis for complaint.

MR M.J. BYRNE:   It is simply this.  Those words open up that if there was an appreciation, that is some degree of understanding, not necessarily intention, that a potential consequence was GBH, then that is quite different to, when one reads it the other way, if there is an appreciation of potential consequence that can lead to a conviction for murder.  Put that way, in our respectful submission, that is a misstatement of law and one cannot truly appreciate a direction using those terms without understanding what a jury would have made of them in the phraseology that is used.

BELL J:   I think I understand the point.  You were going to take us, I think, to a passage in the judgment of Justice Chesterman that you say is erroneous.

MR M.J. BYRNE:   Indeed, I was.  Can we put that in this context?  Your Honour should, as part of the authorities of the applicant, have the decision of R v Pollock [2010] HCA 35, relatively recent to this Court. That is tab 6. May we take your Honours to page 21, paragraph 67 of that decision, in particular, beginning the second sentence:

Model directions, when appropriately adapted to the case, may assist trial judges in this task, but model directions must not be used in a way that distracts attention from the central task of the judge in instructing the jury.  That task is to identify the real issues in the case and to relate the directions of law to those issues.

Now, against that unambiguous statement of law the approach taken by the majority reflected in the judgment of his Honour Justice Chesterman at page 52 of the application book, we would refer your Honours to paragraph [69] and [70], in particular, at paragraph [70] his Honour said:

The fundamental difficulty with the argument is that it finds an error of law in something the trial judge did not say.

Now that, with respect, is to be seen in distinct contrast to what this Court has recently said in R v Pollock, that is a legally correct direction does not of itself mean that no miscarriage of justice has occurred.

KIEFEL J:   I take his Honour there to say really that one does not assume that a jury is going to sit there and parse and analyse and think of the obverse proposition when a judge has clearly, in express terms, given an affirmative answer, effectively, to the answer the jury has posed.  That is you do not contemplate the imagination of the jury when you have a redirection in clear terms.

MR M.J. BYRNE:   Your Honour, if the direction is perceived by this Court as being in clear terms in direct answer to the question then we have no point.  It is only if we can convince this Court that the direction was ambiguous and did not properly and bluntly respond to the question put, rather than it misled in terms of introducing fresh concepts and – I hesitate to use the words “double negatives” but your Honours would appreciate what I am saying by that to allow the converse.  We need to succeed on that point in order to gain special leave.  Unless I can assist further, those are our submissions.

KIEFEL J:   Yes, thank you, Mr Byrne.  We need not trouble you, Mr Byrne.

This application concerns a redirection concerning the requirement of intention to commit grievous bodily harm.  The Court of Appeal by a majority held that the redirection was both correct in its terms and not capable of giving rise to a misunderstanding on the part of the jury.  We see no reason to doubt the correctness of that conclusion.  No miscarriage of justice is identified.  Special leave is refused.

AT 2.16 PM THE MATTER WAS CONCLUDED