Bayliss v The Queen

[1990] HCATrans 77

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B40 of 1988

B e t w e e n -

RODNEY JOHN BAYLISS

Applicant

and

THE DIRECTOR OF PROSECUTIONS

(QUEENSLAND)

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

Bayliss

DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 9 APRIL 1990, AT 3 .10 PM

Copyright in the High Court of Australia

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MR S.J. KEIM:	May it please Your Honour, I appear for the applicant. (instructed by the Public Defender)
MR B.J. BUTLER:	May it please Your Honours, I appear with

my learned friend, MR J.R. HUNTER, for the
respondent. (instructed by the Director of

Prosecutions).

MR KEIM:	Your Honours, in addition to the application book,
there should be some other material that is loose. There are three pages of the transcript which are
numbers 101A to C - in fact, they relate to the
judge's summing up, so you should have that material.
There is a single page which was the Crown prosecutor's
oral submission of antecedents to the court, that
is numbered· (iii), and there should be an additional
affidavit of Timothy Forbes-Harland That goes to the question of the application having been filed quite considerably late, and the applicant will require
an extension of time under Order 60 rule 6. Thatis addressed
in an affidavit that is in the application book at
page 129, by Mr Forebes-Harland, but the additional
affidavit that is loose goes to that issue as well.
It seeks to explain the quite considerable delay
and indicate that the causes of that delay are otherwise than with the applicant personally.
BRENNAN J:	Perhaps you could tell us what is in the affidavit,

Mr Keim.

MR KEIM:	Yes, I was not actually intending to go to it in
any detail, probably now or at any other stage, but
the loose affidavit picks up where the other affidavit left off, as it were, explains - - -

(Continued on page 3)

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DEANE J:  Are we supposed to have that?

MR KEIM: ·Yes, I understood that it was forwarded quite

some weeks ago to the Registry. I can get my

client to perhaps do those photocopies and

perhaps hand it up at a later stage.

BRENNAN' J: If need be we will get you to do that, Mr Kleim.

MR KEIM:  Yes, thank you, Your Honour.

BRENNAN J: But, perhaps, you can tell us what it in it at

all event.

MR KEIM:  It says that:

There was a further delay between the

delay was not caused by the Applicant.

granting of legal aid in late February 1988

and the filing of the Application for Special

It says:

After legal aid was granted Junior Counsel was briefed to prepare the Application and supporting material.

5.       On the fifth of April 1988 interim

material was received from Junior:Counsel

with a request for further ·information from

the Applicant.

6. Further instructions were obtained from the Applicant and further material

was obtained from the Court Reporting

Bureau and Junior Counsel was then briefed

on the -t~enty-second of June 1989 to draft

the final Affidavit in support of the

Application.

7. It is -

the deponent's -

understanding that Junior Counsel was not

aware that the Application had not been

commenced prior to the provision of the

further supporting Affidavit material and

as a result there was a delay of over two

months before Junior Counsel provided the

further draft Affidavit material.

8. Upon receipt of all draft material

I -

that is Mr Harland -

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then prepared and filed the Application

for Special Leave to Appeal together with

my supporting Affidavits.

BRENNAN J:  What have you to say about the extension of

time, Mr Butler?

MR BUTLER:	I would simply submit that it is a matter for the Court as to whether or not there should
be an extension of time. There has been a
considerable lapse of time.  The explanation
given in the affidavit seems to relate to the
time taken for counsel to give ·advice and
there are a series of instances of advice been
accepted.
I would simply submit that it is a matter for the Court to consider whether or not leave should
be granted.

BRENNAN J: Well, no doubt it is. Do you have any submission

to make either pro, con or neutral?

MR,BUTLER:  No. I would prefer - I make no submission on it,

Your Honour.

BRENNAN J:  Yes, very well. Mr Kleim, we reserve the

question of the extension of time and you may

proceed to present the application.

MR KEIM:	Yes. Perhaps at the end of addressing the merits I might just say a little bit more with regard to
that.
BRENNAN J:	Yes.
MR KEIM:	But if I could just briefly say - my submissions
generally would be that that should follow the Court's decision with regard to the granting of
special leave and, if so, the appeal itself
and, in essence, it is a case of a prisoner
being inside gaol, being determined to appeal
but trying to attract the attention of someone
in the outside world and the delays are really explainable from that point of view and, in those circumstances, the decision on the extension of time should follow the other matters.
BRENNAN J:	Yes.

(Continued on page 5)

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MR KEIM (continuing):  Your Honour the application, in

my submission, qualifies for special leave, in the

first case in accordance with WHITE V REG,

involving a gross violation in sentencing

principles in that the sentencing judge has not

sentenced consistently with the jury's verdict.

two issues where the sentencing judge has gone wrong in that respect. One is, that the applicant has not been sentenced on the basis of criminal negligence.	That inconsistency raises two issues or there are sentenced on the basis of being guilty of murder
but, at least, he has been sentenced on the basis of
some form of intentional manslaughter. And,
secondly, he has not been sentenced with the
sentencing judge taking into account the degree of
intoxication that must have been necessarily present
for the jury to come to the decision that it did in the light of the issues that were put to them by
the judge. And, I say that it flows from the jury's
verdict that the intoxication was such that, at the
very least, there was a reasonable doubt with regard to the voluntariness of the actions of the applicant at the time that he was connnitting the offence.
But, quite apart from the gross violation of sentencing principles, the issue of intoxication
raises a matter of general importance, in my
submission, which would qualify in accordance with
authorities such as VEEN V REG (NO 1), that is, that
the question of general importance is, what are the relevant factors in sentencing a person in the
code States where the intoxication is such that
voluntariness and/or intention are not present and
we would - - -

BRENNAN J:	Voluntariness?
MR KEIM:	Voluntariness of the actions, yes.
BRENNAN J:	But, if it is involuntariness, he should be

acquitted.

MR KEIM:	Only in the connnon law States, in my submission.
BRENNAN J:	Why, section 23?
MR KEIM:	Well, there is a Court of Criminal Appeal authority

in Queensland which I am not in a position to
challenge at this point which says that section 23

does not arise where there is voluntary intoxication.

That is the decision which is in my list of

authorities; REG V KUSU, (1981) Qd R 136. The

point was taken shortly after O'CONNOR's case was

handed down seeking to say that the Code allowed the principles in O'CONNOR's case to apply in Queensland

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and the Court of Criminal Appeal said that that

simply was not the case and that the law in the code

States, or in Queensland at least, really is the

law as was spelled out in MAJEWSKI, that is the

connnon law as it applies in England. It is

because of that difference that a general point of

importance arises. Would Your Honour the learned

presiding Judge like me to go to KUSU immediately?

BRENNAN J:  Well, if it presents some basic part of your

argument, I should think so because, as I

understand it, your proposition is that the evidence in this case would lead to the conclusion - or ought to lead to the conclusion - that these acts were not voluntary acts.

MR KEIM:	Yes, Your Honour.
BRENNAN J:	And, that he should have been sentenced on the

basis that he engaged in conduct which was not the

exercise of his will.

(Continued on page 7)

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MR KEIM:  Yes, Your Honour, but that is inherently

the submission, that the facts were that he was

firing gun shots in a caravan park, apparently

at random, and somebody was killed. There was

strong evidence that he was intoxicated and the trial judge..... the sentencing judge said to the jury.that, 11you can convict under section 302(1)

of the CRlMINAL CODE, if you find an intention to
kill or an intention to cause grievous body harm",
but he then went on to say, "302(2) of the Code

is applicable" so that if, as he applied the law, if

he had an intention to alarm people, or to scare

people, then you can still convict of murder,

because he was engaged in a prosecution of an unlawful
purpose likely to endanger life, under section 69 of

the Gode, that is, going armed in public to cause

fear.

BRENNAN J: But that is a different problem from section 23,

is it not? Looking at KUSU I cannot see anything

which - - -

MR KEIM: Sorry, KUSU at page 141 - well, I am just coming

back to KUSU now, and what I say is, that if the

jury - the jury have really applied the reverse of

that vexed phrase that somebody intends the

reasonable and natural consequences of their acts.
If they have found that there is no intention to
cause fear or to scare people, on the part of
the applicant in this case, they have really made a

determination with regard to his degree of

intoxication that he did not but his actions

were involuntary. If, when you fire a gun in a

caravan park in those circumstances, you are not
intending to kill anybody, you are not intending
to cause grievous bodily harm and you are not

intending to scare people, then it is inconsistent

with that decision that your acts are, in fact,

voluntary or intended at all.

BRENNAN J:

Why not, the act might be voluntary but it might

be grossly negligent?

MR KEIM: Well, I say that, at the very least, that he must

be sentenced not on the basis of intention but

on the basis of negligence.

McHUGH J:	But why is not the - I ~d go really beyond that, I do not
care if  you use the term "gross negligence",
but why is it a case of reckless  difference;
he fired this shot not caring whether he hit
anybody or not.  He may not have a specific intent
to kill anybody, nor a specific intent to do grievous
body harm, nor the intention to scare people, but if he
fired it, not caring whether he killed people or not,
that is manslaughter, why cannot he be sentenced on
that basis?

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MR KEIM: That is a logical possibility. I say ~e has not

been sentenced on that basis,that that was not

put to the jury, the issue that was put to the jury
was whether, at the very least, he intended to

scare people, and I say that if they have rejected

that - - -

BRENNAN._ .J: But there is no contest about manslaughter, the

only context was murder or manslaughter, was

it not?

MR KEIM: Yes, Your Honour.

BRENNAN J:  So that the two elements, or the two bases of

murder were put to the jury and they negatived

both.

MR KEIM:  Yes.

BRENNAN J: The jury were never asked to pass upon the

question of1'reckless indifference' or"gross

negligence".

MR KEIM:  No, they were not. I cannot exclude the possibility

of "reckless indifference", I cannot exclude that

that is one thing the jury put their mind to without
being asked to by the judge, but where there is

strong evidence of intoxication, and it is logical

that if you are firing a gun for those purposes

that you are either intending to hurt someone or

intending to scare people, which seems to be the
least illogical thing that you might be intending
to do, now, if the jury rejects that possibility,

the most likely finding, in the weight of the other

evidence, is that they have made conclusions with

regard to the voluntariness of the actions.

(Continued on page 9)

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McHUGH J:	I do not follow this.	If it was not a voluntary

act he could not be guilty of any crime.

MR KEIM: Well, that brings me back to KUSU which is -

if I could just take the Court to page 141, at

the letter E, Mr Justice W.B. Campbell says,

and sets out a number of propositions:

The explicit provisions in section 23, 26, 27 and 28 of the Code as they have

been interpreted over the past eight decades,

with which interpretation I respectfully agree,

support the following propositions as to the law

in Queensland:

(1) intoxication is no defence to a charge which

does not involve a specific intent unless it amounts

to unsoundness of mind within section 2 7;

(2) a person with unsoundness - disease or disorder - of mind due to intoxication may have a

defence of want of criminal responsibility

because of section 28 (applying section 27) and

not because of section 23.

So the court excludes the application of section 23

there.

BRENNAN J:  No, it does not. The court is not saying that at all.

Surely, the ~ourt is saying that if you have got

intoxication, then there may be a defence of want of criminal responsibility because of section 28, going

back to FOY's case case which is cited earlier on

the page, that there is an abnormality of mind here

and not because of 23. The defence has the onus

of proving the insanity which deprives a person of

criminal responsibility.

MR KEIM:	Yes, Your Honour.	The next paragraph takes it further,
in my submission.

BRENNAN J: Well, how does 23 even come into an element,

an offence involving specific intent?

MR KEIM:  No, it says.not involving a specific intent:

(3) self induced - intentional or voluntary -

intoxication will not give rise to a defence

to a charge which does not involve a specific

intent based on either section 23 or section 28.

So, in that paragraph the court is excluding a defence based on involuntariness where there is self-induced

intoxication.

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GAUDRON J: Well, I apply the negative differently.

I do not know if it is just my reading of it.

What it will not defend is a charge which does not

involve a specific intent.

MR KEIM:  Yes, I accept that, Your Honour. If there is a specific

intent, section 28 clearly says, for example,

assault with intention to cause grievous bodily harm,

one can rely on intoxication there to negative

the intention of a specific intent but where you
are dealing with a crime such as manslaughter,
wounding, or perhaps rape, section 23 is not applicable

in the case, of an intoxicated person because there

is no requirement to prove a specific intent.

The discussion, in my submission, supports it.

At the top of page 140, the first new paragraph there,

His Honour draws a distinction between the decision

of this Court in O'CONNOR and the application of the

common law in England in MAJEWSKI's case.

(Continued on page 11)

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BRENNAN J :. · Is your proposition this: that the accused was

entitled to be sentenced on the basis that his
action was quite involuntary, but though it was
quite involuntary, section 23 of the Code did not

give him any defence?

MR KEIM:	That is the proposition, Your Honour, and I say that is because the law in Queensland is different
to the law in Victoria.

BRENNAN J: Well, it is a most interesting proposition. How do

the facts support it?

MR KEIM:	The outline of the facts that is perhaps easiest to
follow is contained in another affidavit of
Mr Forbes-H~rland at page 132 of the application
record, and I have extracted the facts in settling
that affidavit, but I can now give the Court
references to the pages in the transcript which go to
the extent of the intoxication. If one goes, for
example, to page 133 of the affidavit there is a short
history from Mr Richard Bayliss's evidence, but at
about line 44, I start dealing with the extent of
his intoxication - that is Mr Rodney Bayliss's, the applicant, as perceived by his brother, and at
page 13, line 50, there is the expression, "drunk",
"drunky", "off his face'.'. It is page 13, line 50:

A drunk - drunky condition, off his

face condition.

He said in response to the prosecutor.	On the
following page at line 15, he was asked:

Had you seen Rodney as drunk as that

before?

And the answer is:

I haven't seen him talking that way before,

no.

And at the bottom of that page, line 55:

How was he acting at that stage?--Violent.

Is that the normal way he is when he has had a few drinks?

And the answer is, "No."

And then on the following page, at the beginning of the page:

Was it because he was acting different to

his normal character?--yes, it was.

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Is this something you had never seen before,

him acting like that, is that right?

And the answer is, "Yes".

And later on that page there is some reference to

the unusual nature of his eyes:

It was really an unusual manner?--Yes. That is at about line 35.

From the evidence of Mrs Bayliss, which is

set out in the affidavit at paragraph D on page 134,

I would refer you to page 21, line 20:

What happened after that?--Rodney came in quite

upset with Richard.

So, that is just the fact of being upset.

At page 22, the following page, at lines 1 - 10

there is the passage about:

He started banging the walls of the

caravan with the gun, the side of the

caravan with the gun and I - at one stage

I went back - I was stunned from where he

had hit me. I remember going back in the

van and I heard Mr. Bailey come out and say,

"What's going on?" and I sang out to him

something like, "You'd better get the

police" -

and so on.

(Continued on page 13)

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MR KEIM (continuing):  And further down page 134 the facts

~tated there are supported by reference on page 23,

line 43, going over to page 24, line 10:

When Rodney came back to the caravan

park when this other fellow was there, how

was he acting?-- Well, he was rather strange~

You could tell he had either been drinking

or something to that effect, yes.

You say "rather strange". Had you

seen Rodney like that, strange like that

before?-- I had seen him when he had had

a few beers and that, but not like that, no.

What was the difference?-- He just didn't

seem to have any control over himself, you

know, control over what he said or what he did.

Was there something wrong with his eyes?

Did you see that?-- Yes. They were strange,

very strange - dilated, I would say.

Has he ever shown any inclination to

commit suicide or anything like that prior to

this time?-- Not that I recall, no.

You see, had he ever acted that way

towards you?-- Rodney was always very polite

and good towards me.

What he was doing on this night was

completely out of character?-- To hit me

was very, very much out of character for

Rodney, yes .

And just the reference to the accused:

must have walked back and been struck by

one of the bullets.

is at page 24, line 40. In answer to Your Honour

Justice McHugh's question earlier, it is this sort

of evidence which excludes, in my submission, the
other logical possibility that he could have just

-been reckless. It is not really a situation where someone - there was an example in Queensland where someone· was in some bushland,near ·a road, firing

at a can and ended up shooting a passing motorist.

This is a case where, if it was not for the

intoxication, one would be likely to draw a stronger

conclusion that someone was being merely reckless

with a gun. So, although it is a logical possibility

from the jury's verdict, in the light of the

evidence and· the degree of intoxication, I would

submit that a judge could not be satisfied beyond

reasonable doubt and be c~nsistent with the jury's

verdict that that is what the jury was saying.

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BRENNAN J: Mr Keim, coming back to this voluntariness.

MR KEIM:  Yes, Your Honour.

BRENNAN J:  He loaded the gun. He goes outside. Looking

at the evidence, for example, of Mr Owen, who

comes along after he has already shot Mr Bayliss,
and he says to Mr Owen, "I'll shoot". Owen says,

"Well, go ahead, you have already done it once",

and with that he turned around and went back to

the van. How could any jury, properly appreciating

their function, find that that act of pulling the
trigger was an involuntary act, in the case of

shooting Mr Bayliss? What is there to suggest

that there was anything involuntary about it?

Drunken, certainly., but involuntary?

MR KEIM:	Yes, but we must interpret that evidence in the wake of the jury's v_erdict - - -
BRENNAN J:	Be it so.
MR KEIM:	Not place oneself, as a jury, at that point in time.

McHUGH J: But it goes to intent. I mean, that is the critical

difference between the murder and manslaughter.

MR KEIM:	Yes.
McHUGH J:	It was the question of intent or the question of

intent to scare and the jury negatived those

two matters ,but as Mr Jus-t;;ice Ererman. has pointed out

to you~ ·ww can the jury come to the conclusion

that it was an involuntary act?

BRENNAN J:  How could the judge come to the conclusion that

it was an involuntary act?

(Continued on page 15)

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MR KEIM:	It would be my submission that the reason why the
jury came to a conclusion rejecting any of the
intentions that were put to it - - -
BRENNAN J:	Not intentions, voluntariness. Leave aside

specific intention, you have succeeded on that.

Your argument is, that the judge should have

sentenced him on the basis that this was, in fact,

an involuntary act.

MR KEIM:	Yes.
BRENNAN J:	My proposition to you is, how could the judge,

in the light of the evidence of this case, properly

come to the conclusion that the act was involuntary?

MR KEIM:  Well, my submission is this: that the whole course

of conduct was so bizarre in nature and so out of

character for this applicant, that the jury and the

judge - well the jury did and the judge should have

come to the conclusion that the whole passage was

involuntary as far as the applicant was concerned.

BRENNAN J:  Well, the jury did not because the jury were not

asked to find anything about voluntariness but the

proposition I would like you to address is, if you

understand voluntariness as being a movement which

was controlled by the will which discharged the gun,

how is there any room for thinking that these

actions were involuntary?

MR KEIM:  Again, I must come back to it as being part of such

a bizarre course of behaviour on the part of the

applicant that the whole of that course of conduct

was unintended, was involuntary.

DAWSON J:  That is merely to sav the volition is

bizarre. - That might be so.

MR KEIM:  Intentions.

DAWSON J:	No, the volition.
BRENNAN J:	You keep running together "intention" and

11voluntar;:1ess" and the two things are utterly

different.

MR KEIM:	Yes, Your Honours.
BRENNAN J:	For the purposes of the CRIMINAL CODE.
DAWSON J:	In other words, it is quite explicable why he

chose to pull the trigger and spray bullets around;

it is because he was intoxicated but he did it as an

exercise of his will, no doubt, induced by that

condition.

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MR KEIM:  r· say it goes beyond that because any rational

explanation for his behaviour has been negatived

by the jury that the jury, having negatived any

reasonable intention, and I know that if he had no

rational intention that one can then quite properly

take it one step further.

DAWSON J~ It is not a question of his being rational; it is

. a question of whether there is a rational

explanation for what he did. There is, there is

intoxication.

MR KEIM:  I say that the whole course of conduct in the

light of the intoxication both from alcohol and from

the drugs, the Serepax that he took, and the

abhorent response that is referred to in the medical

evidence which was called,makes the whole course of

the conduct one that has occurred independently of

the exercise of his will. It is not - that if one

takes away all relative intentions, then one

ultimately comes to the point where voluntariness

becomes in question.

DAWSON J:  Again, you see, you are confusing intention with

because the trigger is fired by a spasm of the

considerations which should be exercising your mind.

muscles caused by an epeleptic fit; something of that

sort. That is what involuntariness is.

(Continued on page 17)

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MR KEIM: No. I appreciate that that is a form of

involuntariness but if - - -

DAWSON J:	He had no reason for doing what he was doing
other than the intoxication but the intoxication
did not prevent him from, as an exercise of
will, pulling that trigger; everything points
to it.

MR	KEIM:	But if one's whole course of conduct is dominated
· ·	by the intoxication, in my submission, then the whole course of conduct becomes involuntary;
that is - - -

DAWSON J:  No, you wouid never establish that proposition.

McHUGH J: It is not involuntary. As I have put to you,

at page 103, the trial judge, right at the end of his summing up summarizes what was involved and-there had to be an intent to kill Mr Bailey

or to do him grievous:bodily harm or, in the

course of scaring people in and around the park,

he endangered his life.

Now, the evidence was that Mr Bailey came

out of his office; he was yelling out, "Hey, what's going on?"; the accused turned in his

direction and started - turned towards him and
started shooting in his direction and Bailey

then fell. Well, a jury ma~ .well have come to the view that he had no specific intent to

kill him or no specific intent to do him grievous

bodily harm but - he started just firing recklessly.

BRENNAN J:  Mr Keim, if your argument was correct, no person

who is insane could ever be convicted because of the

operation of section 23 and if one looks at FOY's

case, one can see quite clearly that distinction

between intention and voluntariness is clearly

drawn and where there is an abnormality of mind

which is occasioned in FOY's case by some mental

abnormality - I will put that another way - if

there is an,action done by reason either of

abnormality of mind or by intoxication, then one

looks, in the case of abnormality of mind to

whether or not that has been proved by the

defendant, so FOY's case says.

In the case of intoxication, it is no

defence provided the act was voluntarily done.

MR KEIM:	Yes, Your Honour, .except that if one applies
KUSU's case, then voluntariness remains irrelevant
BRENNAN J:	KUSU's case might have some difficulties in it

but whatever difficulties they are, in this case

the problem that faces you is the facts of the

case. Is there any basis upon which the trial

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j·udge could properly find that these acts were

not done voluntarily?

MR KEIM:	I cannot take it any further than the submission
I put previously.

BRENNAN J:  Yes.

MR KEI~~ That with the findings negativing the reasonable

intention and the degree of intoxication that is

otherwise evidenced, the trial judge should

construe the whole course of conduct as being

one that is involuntary.	I cannot take it any
further than that.

BRENNAN J:  Yes. Now, what do you have to say about the

negativing of the intent on the basis of sentencing?

Was there any inconsistency there?

MR KEIM:	Sorry, Your Honour?
BRENNAN J:	Was there any inconsistency between the jury's

acquittal based upon the absence of a specific

intent or an intent to scare people and the basis

which the trial judge adopted in sentencing?

MR KEIM:  Yes, Your Honour. I say that beyond the submission

I have already made that the trial judge	sentenced
as if it were an intended - a manslaughter	involving
intention.

(Continued on page 19)

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BRENNAN J: Where do you derive that from?

MR KEIM:  I would go straight to the trial judge's own

sentencing remarks, which are contained at

page 109 of the application record, and I

say in that regard he is sentenced on the

basisof, asisay, an intended - at least an

intention to harm - when all reasonable intentions

have been negatived by the jury decision, so

that although it is truly a case of criminal

negligence, putting aside the degree of
intoxication, that he has not sentenced on the

basis of manslaughter by way of criminal

negligence, and secondly, I say. he has not

given any weight to the degree of intoxication

involved, and I say, as in paragraph 6 of the

outline, that he is sentenced on a different

basis is shown (a) by his language and (b) by

the sentence which was imposed, and if I could

just go to his language, he uses firstly, he

says, "one could hardly envisage a more serious

case of manslaughter" and I say that is simply

not true and perhaps for an analysis of serious

cases of manslaughter one could go to Your Honour

Justice Deane's remarks in VEEN (NO 2), which is

actually in my learned friend's list of authorities,

at page 493-4. It is clearly not the most serious case

of manslaughter that one can envisage, and I will

compare it to other cases where sentences have been

imposed.

Secondly, he says:

You, although intoxicated by the combination of alcohol and Serepax, embarked upon this

course of conduct of spraying bullets in a

place which was obviously populated.

And he says these phrases in seeking to justifyit as

the most serious case of manslaughter. I say, at that stage, he takes no note of the mental state,

whether it is involuntariness, as I have tried

to convince you or not. I say that "embarked"

signifies a degree of intention that is not present

and consistent with the verdict of the jury; I

say that "obviously populated" assumes the rational

taking in of data and the making of observations
which, again, is not consistent with the negativing

of intention by the jury.

Thirdly, he says:

Consistent with the jury's verdict, I
accept the fact that you had no intention

to kill Mr. Bailey nor to do him grievous

bodily harm but he was nevertheless killed.

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And in there, he makes no reference to the absence of any intention even to scare people, which I

say is a point that he point to the jury quite

firmly.

He goes on to say:

The use of firearms in the manner in which you used this firearm on this night must

be discouraged in the conununity because the

loss of innocent life is something which the

cormnunity just will not tolerate.

(Continued on page 21)

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MR KEIM (continuing):  Again, I say, the use of fireamns

in the manner in which he used this firearm takes

no cognizance of the jury's verdict re intoxication

and assumes a more conscious choice to use

firearms which is inconsistent with the jury's

verdict.

McHUGH J:. Why do you say that? It is not as though the

jury found he was insane, for ex~mple. He knew

what he was doing and so the judge said, "This is

a very serious offence". It nust be a serious ·case of manslaughter

for some]?ody to get up with a rifle and start firing

in the direction of somebody and kills him. It is

fairly difficult to envisage a more serious case

of manslaughter. There may be other cases

equally as serious but this is a very serious case,

is it not?

MR KEIM:  I must come back to my earlier submissions. I cannot

take it any further than that. Again, the

explanations as to what intention he might have have

been negatives by the jury.

McHUGH J:  The intention to kill this particular person is still

consistent with him knowing what he was doing, firing

a gun in the general direction of a person without

any intent to kill him but he does kill him so the

jury bring in a verdict of manslaughter.

MR KEIM:	Nor intention to harm him.
McHUGH J:	Or intention to do him grievous bodily harm.
MR KEIM:	Yes, nor intention even to scare that person.
BRENNAN J:	It is the course of conduct of spraying bullets in a place which was obviously populated. That is the reckless disregard for human life.
MR KEIM:	Yes.

BRENNAN J:  Well, the question is, where does the manifest

error lie in the adoption of that as a basic factor

which ought to determine the sentence?

MR KEIM:  I say, again, it takes no account of the

intoxication that was present at the time.

McHUGH J:  We have got to live with the proposition that he

knew what he was doing.	He was not so intoxicated
that he was insane.

MR KEIM:  Well, the jury could not be asked to rule upon

that, Your Honour.

McHUGH J:  No, I know. But, that only means the jury negatived the specific intent to kill or cause grievous bodily

C2T64/1/JH	21	9/4/90
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harm or to scare this particular person. But, your

problem is that here is a man - no doubt the reason
he does these things is because he has taken this

alcohol and he has had this Serepax and he uses

a rifle and just starts spraying a particular area

of a caravan park and he kills another human being.

That is a fairly serious offence, is it not?

MR KEIM·:	It is if you characterize it as an intended act.
BRENNAN J;	No, as a willed act.

MR KEIM:  As a willed act which still involves imposing

some intention upon him.

BRENNAN J:  A general· intention, as it is called in the

common law.

(Continued on page 23)

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MR KEIM:	Yes, but if I cannot convince Your Honours on the
point of voluntariness, it is still my submission
that the negativing of the three intentiors, to which Justice McHugh referred, still says something
about the degree of intoxication and that if I were
to accept that it was voluntary in terms of section 23
the judge still has failed to give any account to the
fact that it is a very severe intoxication and that
no specific intention,as opposed to the general
intention to which Your Honour referred, is present
and it is my submission that His Honour's remarks
takes no cognizance of that.

For example, by leaving out the reference to

no intention to scare anyone, as I said, something

which he put to the jury quite firmly. And even if

one accepts that there is a voluntariness or general

intention there, in my submission, the emphasis on

deterrent, for example:  ·

The use of firearms in the manner in which

you used this firearm on this night must be

discouraged -

still,again, the degree of intoxication, even if one

assumes that the general intention is there, that

the act in not involuntary, still raises, in my submission,
that the sorts of factors that are raised in O'CONNOR's

case, for example, in Sir Ninian Stephen's words -

and I will come to the passages later - that when one

is severely intoxicated to the point of negativing

voluntariness, one is not trying to deter the actual
acts which have led to the death or the injury or

whatever, but one is trying to deter the drinking at an

earlier stage,so one has to have a different approach.

DAWSON J: Well, that is what you really put. You say

put the questions of voluntariness on one side. Here it was the drugs and the alcohol speaking, no inherent vice in this man except perhaps the inherent

vice of being susceptible to drugs and alcohol and that

is not as deserving of punishment as conduct which is

done with a cool, clear mind, unaffected by drugs

and alcohol.

MR KEIM:	Yes, I say that. That is my fall back point and
His Honour has not addressed that at all, as he then
was. Yes, the sentencing judge has not addressed that
at all.  He repeatedly says "this is a very serious offence'
He says:

I consider this a very serious offence ..... But,

as I say, I consider this a very serious case

of manslaughter with the use of a firearm.

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He says:

You are 18 years of age and you seem to be an

angry young man.

Again, not giving any weight to the degree of

intoxication. Again, he says:

but, unforunately, the deterrent aspect of

punishment is what I feel is the most

important aspect here.

He says:

hopefully, at the age of 26 and a half years,

you will become a bit more mature.

And in the whole of that he has made only one passing

reference to intoxication.

(Continued on page 25)

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MR KEIM (continuing): There is no attempt to articulate the

implications of the jury's decision. Again, assuming

against myself the question of voluntariness, there

still, in my submission, is a need to articulate the

implications of the lack of any of the three relevant

intentions, and there is no reference at all to the

rejection of the basis for a murder verdict under 302(2).

DEANE J:. Was the only material as to your client's antecedents

this page here, and what Mr Daly said?

MR KEIM:  Yes, Your Honour.

DEANE J: What is the normal practice in Queensland? Was it

for the defence to suggest for some report if they

wanted it, or does the judge ask normally of

his own volition, or what?

MR KEIM:	Either, Your Honour. I am not what could be described as experienced criminal practitioner, but either would
apply there. It was in the provinces, as it were. It
was in Townsville, so when one is doing a circuit in
Townsville, the judge is corning from Brisbane. It may
well be - and my learned friend, Mr Butler, is now from Townsville - the niceties of sentencing may be a
little bit concertin~d- when one is dealing with a judge on circuit who may not come back to that area for some time, but the sentencing judge made a
flattering remark to Mr Daly's submissions, but it
was not what you would call a very extended or
profoundly researched submission on sentence and the antecedents were left in the prosecutor's rooms.
Your Honours, if I could just go back - - -
DEANE J:	Of course, against what you say, now you direct
attention to that is, His Honour's remarks follow
apparently instantly after all the mitigating
comments of Mr Daly, and he acknowledges the lack
of any intention; points out what he saw as of
particularly significance and then says that he takes
into account all the matters which have just been put
by Mr Daly.
MR KEIM:	Yes, Your Honour.  What I am saying is that there was
not a lot to take into account.
DEANE J:	The point I am making to you is, when you look at
that, all the mitigating things had just been said
and His Honour points out, provided the context of
his own remarks.

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MR KEIM:	Yes, I accept that, the submissions in mitigation
had just been made and I concede that His Honour
says that he took those things into account. When
you say that he excludes the intention, the point I made earlier was that he excluded only the intentions
under 302(1).
DEANE J;	To kill or do grievous bodily harm.
MR KEIM:	Yes.

(Continued on page 27)

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DEANE J: Yes, but that must surely be on the basis that

His Honour is saying, "I accept you had no

specific intention".

MR KEIM:  I would put it higher than that, Your Honour. I

would, again, not trying to get into the voluntariness
question, a very low intention, I mean, the use

of 30l2), allowed a very low intention to be

put to the jury. That is, firing a gun, logically

there must have been some intention, at least, to scare people, and that was negatived by the jury.

That was a significant fact, in my submission,

which the judge should have specifically referred

to if he was giving any cognizance to the degree

of intoxication.

DEANE J:  Well, just so you can deal with it if you want

to, the real point I was trying to make to you is,

if you look at the top of page 109, Mr Daly had

just put your client's case at its very best; that_

he had taken these things; the effect that had on

him; that: he had never taken them before. It may

well be that your conrrnents about the sentence may

be right, but I just cannot see that it is true

to say in an extempore context inrrnediately after
that, when His Honour says he has taken

everything Mr Daly said into account, that- - -

MR KEIM:	Yes, I guess what I am complaining about, Your Honour,
is that, although he says that he has taken that
into account, his other remarks do not indicate that in fact he has taken them into account.
DEANE J:	But that is what you would expect, is it not,

when that has all been said and the judge·is

addressing his remarks to the accused straight

after and when he ends, in effect, saying, I have

not repeated the favourable things Mr Daly has
just said, but rest assured I have taken them all

into account.

MR KEIM:  Yes, I accept the point that Your Honour is making.

BRENNAN J: Is this your proposition, Mr Keim, that once

you negative any intention to scare anybody by

firing the gun, it really was an act of stupidity,

rather than of any malice. That is not a good

term either. An act of stupidity, rather

than an act which manifested clear disregard for

other people's welfare.

MR KEIM:	I think I have probably put it higher than that,
putting aside the voluntariness point. I say it
is something approaching voluntariness. Yes, it
is stupidity, but it is stupidity because his
mind was completely deranged by the alcohol. I
put it a little bit higher than Your Honour says.

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BRENNAN J: Yes.

MR KEIM:	Can I say also that His Honour has not, in
reality, sentenced on the basis of criminal negligence; that there is still a suggestion in
His Honour's remarks that it is an intended act,
greater than the jury's verdict would suggest.

(Continued on page 29)

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MR KEIM (continuing):  I did want to go back just to

highlight a couple of facts which are, in fact,

set out in the affidavit in support of the

application for leave just to support my

suggestion of bizarreness. There is the evidence

of Mr Rolan, the pharmacologist,as to the possible

effects of Serepax when taken together with

alcohol. There is the situation of attempted

suicide; that is at page 137 of the record:

The Applicant appeared to be slicing his

left forearm with a grey handled knife.

That is at page 57, line 35, of the transcript.
Page 58, line 40, is the request to be shot.

Then he throws the contents of the saucepan, hot potatoes, at the police officer. That is

line 48 on page 58 and then, shortly after
that, he was taken to hospital; that is page 59,

line 12, where he refused treatment and, at the

top of page 59, there is the indication that

he has not only cut his wrist with a knife but

he has also cut his throat.

(Continued on page 30)

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MR KEIM (continuing):  That is referred to further on

page 61, line 2, where there is a reference to:

These wounds were open?--Very, yes.

Did he have wounds to both wrists?

-- Both arms.

Both arms?--both arms and his throat.

And he was, I imagine, covered in blood?

--Yes.

Which is contrasted with his conduct in the police

interview which is described on page 69, line 25,

by Detective Gockel and the record of interview

discusses his own recollection of that evening

which seems to be fairly scattered. That is - just

going back to the question of the facts - I said,

apart from what His Honour has said, the 15 years -

that was the sentence which was imposed - is, in

my submission, so excessive and so out of the range

that that also indicates that His Honour failed to

treat it properly as a question of criminal
negligence or, secondly, and/or, failed to treat

the degree of intoxication that must necessarily

have been present, again, with the jury having

negatived the three intentions that were put to it.

In that respect, I would like to go just briefly to a number of authorities.	The first is
REG - - -

BRENNAN J:	What are these to show, Mr Keim?
MR KEIM:	These are to show that the sentence is, indeed, out

of the range that one would normally expect for

manslaughter generally, particularly manslaughter by

way of criminal negligence and manslaughter in

which intoxication has played such an important role.

(Continued on page 31)

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BRENNAN J: You will bear in mind the limits of the grant of

special leave?

MR KEIM:  Yes, Your Honour.

DAWSON J: Perhaps you could tell us what you say the range

is?

MR KEIM:  Yes. In GREEN's case, a range for domestic

manslaughter. or where	the parties are
~	a domestic relationship is

given and, I- think, the top of that range is

six years, usually with an early parole. In

fact the sentence in that case which involved
a 17-year-ald shooting his father at point blank
range, which seems to indicate an intention to
at least harm, was : ,reduced to six years with

the reconnnendation for early parole.

There are two other firearms cases; there

is REG V KEITH and REG V GALEANO. GALEANO, again,

either involves an intention to harm or a very bad
case of criminal negligence. It is a 1961 case -
the CCA, in that case, increased the sentence to some
six years. In KEITH's case, which is an old case -

1934 case, these are all set out in the list of

authorities, the sentence was 10 years and, in my

submission, that is really very much the top of the
range, and the degree of culpability in this case
is less than in either of those two firearms cases.

There are a number of non-firearms cases but involving criminal negligence. There is a recent unreported decision of HODGETTS, which has actually

been sent back for a retrial by the Court of Criminal

Appeal, but that involves some butchers leaving out

some food preservative, or some Coca-Cola laced with

food preservative for a hobo that they were trying to

get rid of and he unexpectedly died.

(Continued on page 32)

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MR KEIM (continuing):  A sentence there of three years with

a recommendation after one year was held to be not

manifestly excessive.

BURTON, again in my submission, indicates the

top of the range for criminal negligence. That was
a very, very bad driving case and a sentence of
10 years was imposed. It involved three lots of
red lights and a very heavy articulated vehicle.

Of course, the range can go down very low

and there are two probation verdicts in AULD and

in JAGER but the three cases that the sentence

in this case should be particularly contrasted

with are three cases of a brutal attack on

someone by punching and kicking: in McCARTHY,

a sentence of 11 years was handed out and that was an attack on someone older, weaker and who

was very intoxicated at the time and the accused

in that case went to the caravan park for the

precise purpose of attacking the person. It

was described as being worse than the next case

which is PEACOCK, in which there was nothing

approaching - because in this case there was

nothing approaching a fight.	PEACOCK also
involved a brutal attack.	A sentence of 11 years

was handed out and, in that case, for that type

of manslaughter, that is, where there has been

a savage attack on someone, a normal range was

referred to of five to 10 years but that the

attack in PEACOCK was so bad that 11 years was

held to be appropriate because it was outside

the normal range. Again, the victim was drunk

and a callous disregard was shown for the victim;

he was punched, kicked and struck with a table leg.

And lastly, there is the case of BLISS. The

court referred to that as being a serious severe

beating but terhaps something short of a brutal

attack and a sentence of six and a half years

with a recommendation after two years was handed

out.

So, I say that really the range for

manslaughter would not exceed 10 years.

(Continued on page 33)

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DAWSON J: But you really have to show that the sentence

in itself demonstrated a gross violation of

sentencing principles, because - - -

MR KEIM:  I do, Your Honour.

DAWSON J.: - - - you cannot just say. that it .was a heavy

sentence, although undoubtedly it 'was -

MR KEIM:  No, I do not, Your Honour.

DAWSON J: But this Court has said on numerous occassions that

the mere allegation of an excessive sentence is

not sufficient to found a grant of special leave.

MR KEIM:  Yes. No, I put forward that range to justify a

submission, in addition to the words that His Honour

used in imposing the sentence, to submit that this

is further evidence that he has not properly

conceived the case as being one of criminal

negligence, as opposed to some form of intentional

use of a firearm.

DAWSON J:  But the difficulty is that was put to the

Court of Criminal Appeal. It was rejected, was

it not? They simply held that this was a case in

which the sentence was high, but not so high as

to indicate that the exercise of the discretion

of the trial judge miscarried. Now why were they

wrong in coming to that conclusion? Well, that is

really what you have to face, is it not?

MR KEIM:	Yes, Your Honour, the Court of Criminal Appeal - - -
DAWSON J: You see, they have experience of sentences.	One

would expect them to know the very things you are

trying to put to us and it has been pointed out

again in this Court, that this Court does not have

necessarily that experience and for that reason

that it is loathe to enter into the sentencing

process in any direct way.

MR KEIM:	I say two things with regard to the decision of the
Court of Criminal Appeal: firstly, they simply accepted His Honour's remarks, so to the extent
that he has failed to properly construe the jury
verdict, and I accept that the Court does not
accept that it goes as far as voluntariness, to
the extent that he has not considered the degree
of intoxication involved and to the extent that he
has not properly considered it as a case of
criminal negligence, they have made the same error.

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MR KEIM (continuing):  And secondly, to some extent they have

deigned not to really consider the merits because

they have declined, really, to look at comparative

decisions. They say, if I can paraphrase them - I

will find the words in a moment - 'comparatives

have been put to us but all manslaughters are different".

Well, in my submission, that is not the correct

approach. At page 124, at about line 43, His Honour

Mr Justice Kelly says:

We were referred to various other decisions

of this Court of cases of manslaughter. For my

part I did not find them of any particular

assistance because, as is obvious, there are

innumerable varying types of circumstances

in which the offence is committed and, generally

speaking, no two are so alike as to afford a

great deal of assistance when it comes to

approaching the matter in other cases.

In my submission, to properly review His Honour's

decision they should at least have looked at what the range

of verdicts were and looked at the comparative

culpability.

DEANE J: Except, may it not be that underlying this very high

sentence is the thought that cases where strangers

are going about in a public place and are shot by a

gunman are in a very special category where the public

is outraged and where courts have to reflect that

feeling of outrage. I am putting to you it is right.

But are any of these cases that you have been telling

us about cases where a stranger has been shot by some

gun carrying individual and in circumstances where, in one sense, it was ill chance that he shot anyone

but, in another sense, it was lucky that he did not

kill more than one person.

(Continued on page 35)

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MR KEIM:  The driving cases are, perhaps, comparable,

Your Honour.

DEANE J:	No, they are not in terms of the public perception.
MR KEIM:	Yes.
DEANE J:-	And, why I am asking you is, it seems to me that

we are at a very real disadvantage if it comes to

the point of simply substituting what seems to us to

be the upper end of the range compared with the

position of the judges of the Queensland Supreme Court.

MR KEIM:  In answer to your question - apart from the driving

cases - none of the ones that I have referred to have

involved the shooting of strangers with firearms.

I would say that simply to sentence on the basis of

public outrage and you allowed this possibility and not
to direct oneself to the degree of culpability of
the particular prisoner would be itself a violation

of sentencing principles.

GAUDRON J:  And, in essence, you say that is what happened

here, is it not, that although it is not the public

outrage - well, it is not expressed in those terms

but it is expressed in terms - - -

MR KEIM:	It is the reference to general deterrents.
GAUDRON J:	- - - of deterrents without any, you say,

consideration of those matters that bear upon the

culpability of this particular accused in those

particular circumstances?

MR KEIM:  Yes, I say the factors that I have referred to can

be summarized by saying that the judges had little or

no attention to the real degree of culpability of

this person, this applicant.

GAUDRON J:	No, you made some reference to the relevance of deterrent&where what you have to deter is the
drinking rather than the shooting, as it were. Do
you rely on that in any way as disclosing an error
in this matter?

(Continued on page 36)

C2T74/l/JH	35	9/4/90
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MR KEIM:	I do.	I originally relied upon it because I thought

I could make out the lack of voluntariness, but

I say, in any case involving intoxication those

factors become relevant and the more marked the

intoxication, the more relevant they are. If I

could perhaps go to those, and they essentially

consist of relevant passages from O'CONNOR's case.

GAUDRON J:	It is perhaps sufficient if you give the page numbers.
MR KEIM:	They are contained in paragraph - paragraph 7 is
broken up into - there is a passage of 7, then (a),
(b} and,:-"(cY and (c) is followed by references in O'CONNOR's case to both Sir Ninian Stephen and
Sir Garfield·Barwick at a number of different pages
and then there is an academic discussion by - - -

GAUDRON J: Where are you reading this from?

MR KEIM: Sorry, the outline.

GAUDRON J: Is there anything about the relevance of

deterrents when you are dealing with a young offender

and whether or not that should be balanced. I find it,

for myself, somewhat difficult to think that when you

are dealing with a young offender - - -

MR KEIM: Well, in paragraph 8 I refered to two authorities

that refer to a person's youth. It was

LAHEY V SANDERSON and MASON V PRYCE. They are

particularly focussed upon keeping a young offender

out of gaol and they say that rehabilitation with
regard to a young offender is the most important
thing and you should try and keep the young offender
out of gaol. But they do allow that in cases of
serious violence, a young offender can be sent to

gaol, but it would be my submission that the

emphasis on rehabilitation, even where you have

to send a young offender to gaol, means that you

still give some credit for the person being young,

so that even if you do have to send a young offender

to gaol, the ultimate sentence for an 18-year-old in terms of years in gaol would be less and would

perhaps have more emphasis on recommendation for

parole or probation if the sentence was low enough
than if you were dealing with,say,a 36-year-old

person.

(Continued on page 37)

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MR KEIM (continuing):  So those two authorities there,

LAHEY V SANDERSON and MASON V PRYCE, in my

submission, express a general principle of

sentencing and it goes beyond, in my submission,

just keeping the young offender out of gaol.

You do not say, "Well, if we cannot keep him

out of gaol, well, we'll give him 15 years".

You still place an emphasis on rehabilitation.

DEANE J:	But to put the proposition that can be put at its
worst against you, you would have to say something
like,"Provided a person is young and sufficiently
drunk, a sentence of more than 10 years cannot be justified for a crime involving shooting of
an innocent unconnected person in a public place" and that thts Court without the sort of knowledge
of Queensland that the judge's have, should
effectively lay that down as a general proposition
for the whole of Australia.
As I say, that is putting it as unfavourably as I possibly can because I would like you to deal with it.
MR KEIM:	Yes.  The order sought is actually that it be
sent back to the Court of Criminal Appeal for sentencing.
DEANE J:	But it could only be on the basis of what I put
to you, could it not?
MR KEIM:	Yes, on the basis that because of those factors, because of the youth, because of the intoxication,
and I also rely upon the extempore words of the
sentencing judge that these factors had not been
given enough weight, and part of the argument for that is the length of sentence.

(Continued on page 38)

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BRENNAN J: Is there anything further you have, Mr Keim?

MR KEIM:	Not, I do not think, that is not contained in
the outline of argument.  For example, there
are a number of cases there, a fair selection
for what I submit is a trite principle that
intoxication can be a mitigating factor and
that, in those case - and there are really two,
they are both South Australian cases. There
is REG V SEWELL, referred to in the outline,
and it therein refers to BIRCH V FITZGERALD. The degree of intoxication there is clearly not to the extent that is present in the present
case.
Can I just say this, that if one were seeking to outline principles for how does one sentence
one where the degree of intoxication is so great
as to approach involuntariness - I will put it
no higher than that - some of these are drawn from O'CONNOR's case and some perhaps are
not. The sorts of factors that one would look
to would be the similarity between the pre-intoxication conduct and the post-intoxication conduct.

So that if somebody goes to the cricket

and starts throwing empty cans and continues

to drink and ends up throwing full cans and kills

someone, then in that case intoxication would

be less relevant in the sentencing process than

if someone gets drunk in their own home and then

runs into another situation where they do something

which they would not normally do.

Secondly, whether there is a previous history

of dangerous conduct when intoxicated - and again

that is a matter that arises out of O'CONNOR's

case -butto which the learned sentencing judge,

in my submission, has not properly addressed.

Thirdly, the lack of control over one's drinking so that if one was an alcoholic and

had difficulty over drinking, that would allow -

using the principles in VEEN (NO 2) - a sentence
towards the higher end of the range because of
the preventive or protective element involved

in that.

(Continued on page 39)

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MR KEIM (continuing): In my submission, that would be

consistent with both the minority and the majority in VEEN (NO 2). The degree of harm, I would have

to concede, would have some place so that one
would be more likely to get a higher sentence where

someone has died as opposed to where someone has

simply been injured and, the fifth factor is whether

there has been any prior history of violence and

each of those factors, in my submission, apart from

the fact that a stranger has been killed, really

argue for a sentence towards the lower end of the

range and certainly much less than has been imposed

in the present case.	I think I have addressed the
points that I wanted to make.	Thank you, Your Honours.

BRENNAN J: Thank you, Mr Keim. The Court will adjourn briefly

in order to consider the course it should take.

AT 4.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.44 PM:

BRENNAN J:  We do not need to trouble you, Mr Butler.

Having given careful consideration to the arguments advanced, we are unable to see that the case raises

a question of general importance to warrant this

Court's intervention in the matter of sentence.

Accordingly, the appropriate order is that the time

limit for commencing an application for special leave

to appeal be extended but that special leave to appeal

be refused. · The order of the Court is accordingly.

AT 4.45 PM THE MATTER WAS ADJOURNED SINE DIE

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