Beattie v The Queen

[2022] HCATrans 222

[2022] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S44 of 2022

B e t w e e n -

MATTHEW BEATTIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 15 DECEMBER 2022, AT 9.29 AM

Copyright in the High Court of Australia

MR A.L. TOKLEY, KC appears with MR E.L. OLIVIER for the applicant.  (instructed by Just Defence Lawyers)

MS H.R. ROBERTS, SC appears with MS E.R. NICHOLSON for the respondent.  (instructed by the Director of Public Prosecutions, New South Wales)

MR TOKLEY:   Yes, your Honour.

KIEFEL CJ:   Mr Tokley, you need a number of indulgences.  You need an extension of time.  I do not think that that is opposed, though, is it, Ms Roberts?

MS ROBERTS:   It is not, your Honour.

KIEFEL CJ:   And nor is the application for leave to amend the proposed notice of appeal, Ms Roberts?

MS ROBERTS:   That is also not opposed, your Honour.

KIEFEL CJ:   So, you have the extension and the amendment, Mr Tokley.

MR TOKLEY:   Thank you, your Honour.

KIEFEL CJ:   There is a further application in relation to evidence sought to be relied on.  It is largely a transcript of the expert evidence.  Is that opposed, Ms Roberts?

MS ROBERTS:   Your Honour, it is not opposed, but the Crown has – the respondent has expressed the view that it may not be necessary, given that there is an accurate summary of the evidence in the Court of Criminal Appeal judgment and no dispute about that accuracy.

KIEFEL CJ:   I think Mr Tokley has identified the areas of evidence that he relies on in his written submissions, have you not, Mr Tokley?

MR TOKLEY:   I have, your Honour, yes.

KIEFEL CJ:   Yes, very well.  We will proceed and if you need to take us to the transcript beyond your written submissions, do so, but I would not have thought it was necessary.

Yes, Mr Tokley.

MR TOKLEY:   Thank you, your Honour.  Your Honours, this is an application upon the ground that it is in the interests of the administration of justice in this particular case that special leave to appeal be granted.

As your Honours know, the sole issue at trial was whether the applicants had the capacity or ability to form relevant specific intention to murder.  In this case, it was to cause serious bodily harm and, relevantly, it arose in the following context; that is, that there was no challenge to the basic facts or to the oral evidence, including that of the experts on the grounds they were mistaken, or they were wrong.  It was not in dispute, as the Court of Appeal stated, that the applicant had consumed a vast amount of alcohol and various drugs over a period of 18 hours, but it was estimated that he had consumed somewhere between 30 to 40 alcoholic drinks. 

Most significantly, though, if I may invite your Honours to go to the application book at page 108 of the booklet using the numbers in the top right hand corner of the booklet, your Honours will see in paragraph 34 . . . . . in the context where the Court of Appeal was addressing the argument on directions, that in the second sentence of that paragraph, beginning on page 107:

This was a trial in which the evidence of intoxication cut two ways.  Both experts gave evidence that amphetamines increase aggression. 

But the relevant part of that paragraph was on page 108 in which the sentence, beginning at about point 2, says:

Conversely, both experts gave evidence that alcohol depresses or impairs cognitive function.  That evidence could be taken into account against the Crown case because it tended to undermine the Crown’s contention that although the applicant was heavily intoxicated at the time of the fatal assault, his repeated punches and kicks to the head of the deceased, including when the deceased was on the ground, were accompanied by an intention to cause him really serious physical injury even if he had no memory of having done so.

But the agreement of the experts actually went further than identified there and that is set out in the application book at page 121, if I can please invite your Honours to go to page 121.  Your Honours will see that we have extracted the relevant quotes which were put in evidence in‑chief to the expert – or the Crown psychiatrist, Dr Skinner.  These quotes come from the report of Professor Christie, the pharmacologist.

The first of those quotes refers to the effect of a drug called Alprazolam, otherwise known as Xanax, on a person’s cognitive impairment.  In context it was whether the – when the accused did take Alprazolam, the effect it would have in terms of exacerbation of his cognitive impairment.  The answer given by Dr Skinner was yes and then an explanation followed as to how it would work upon the applicant’s cognitive impairment.  Further down on that page, around line 25, again it was said – this is a quote from Professor Christie’s report, that it was said:

“His concurrent use of methamphetamine would have been expected to increase his arousal levels . . . but would not be expected to overcome any of the dis‑inhibition and impairment of reasoning and judgment produced by alcohol and Alprazolam intoxication”?

The answer was:

Yes that is probably correct.

The impact on – and the agreement of the two experts about that matter is recognised in the Crown’s submissions.  If your Honours could please go to application book page 136, paragraph 11 on that page.  Your Honours will see that the Crown accepts that:

Dr Skinner accepted that the applicant’s intoxication would have reduced his inhibitions, his judgment, and his capacity to reason.  She agreed with Professor Christie that, as a possibility, the prescription medication Alprazolam combined with the estimated blood alcohol content of the applicant could produce a complete loss of reason in some people – but her opinion was –

and it was expressed there.  Dr Skinner did not change her opinion but the point that we wish to make is that it was, in effect, agreed as a fact between the experts that the combined physiological effects upon a person’s cognitive functioning and their ability to formulate the relevant intent was correctly recognised by the Court in appeal, at application book 99, in paragraph 5 and, in particular, at page 104.

GORDON J:   Mr Tokley, can I ask you whether that is right as a matter of analysis, because what do you then say about what you have set out at pages 121 and 122 about the pharmacologist’s evidence?  It seemed to accept that there was a capacity, but they were not prepared – either of them, were they – to say that it completely disrupted his ability to act rationally.

MR TOKLEY:   Yes, your Honour.  I accept that neither expert could say on the evidence before me that it completely disrupted.  It is really a question of whether the disruption, such as it was, meant that he was incapable of forming the relevant intention.  My understanding of the tenor of Professor Christie’s evidence was even making appropriate allowances in the circumstances of this case, nevertheless, Professor Christie was of the view that the effects of the combination of alcohol and drugs would have had such a substantial effect upon his cognitive abilities that there was a reasonable doubt as to whether ‑ ‑ ‑

KIEFEL CJ:   Mr Tokley, both experts, I think – as you point out – agree that the level of intoxication combined with the drug could hypothetically produce a significant loss of reason.

MR TOKLEY:   Yes, your Honour.

KIEFEL CJ:   But both of them were prepared to have regard to the particular circumstances and the conduct of the accused in determining whether or not one could really say that there was such a loss of reasoning.  Professor Christie could not express an opinion about capacity.  He said there might be a substantial effect on the ability to reason, and accepted that there were degrees of impairment, but could not really draw the line.  What is really relied upon by the Crown is that he accepted that some of the conduct and the comments, both before the assault, afterwards, and when the police officers were present, showed a degree of reasoning and purposefulness.  That is really your difficulty, is it not?

MR TOKLEY:   Yes, your Honour, I accept that the – if I can put it this way.  In the time line – because your Honours will know from the chronology of events that at around 1.00 in the morning there was an interaction between the applicant and the police officers when he was leaving the RSL club, but the assault occurred closer to 3.00 am that morning, and the evidence on ‑ ‑ ‑ 

KIEFEL CJ:   Yes, but much occurred between the accused and his friend, the accused and his wife, and then later the accused and the police.  I mean, there is quite a lot of conduct to take into account, and words that he said, which the jury could have regard to in determining whether there was a degree of reasoning and purposefulness.  I mean, your case really is that the jury were obliged to accept that Professor Christie was saying there was a loss of reasoning, and the problem is that does not really seem to be the effect of his evidence.

MR TOKLEY:   Well, your Honour, I put it up, I suppose, at an anterior point, and that is that the agreement between the two medical experts, in effect, constituted a fact from which the ‑ ‑ ‑

KIEFEL CJ:   But it was a hypothesis, was it not?  They were both speaking in terms of what could occur as a result – what could possibly occur – but then you have the actual facts of what occurred, and then they were asked to comment upon that as well.  They are the two quite distinct methods of assessment.

MR TOKLEY:   Yes, your Honour.  Although, I see the agreement more in the nature of – given that there was no disputes – I will go back a step.  Because the trial judge recognised that none of the facts were in dispute – for example, it was not in dispute that Xanax had been taken, it was not in dispute that he had consumed vast amounts of alcohol – so it could be taken as a fact that this was the effect, as both – being a hypothesis, it could be taken as a fact that this was the effect upon the person’s mind.  So, if that was correct – and we respectfully submit that it is – then it meant that he lacked the ability to form the relevant intention.  So, it is that anterior point that we put the emphasis upon. 

GORDON J:   Can I just ask about that anterior point, Mr Tokley, and, in particular, what you set out at page 123,which is the re‑examination of Professor Christie.

MR TOKLEY:   Yes, your Honour.

GORDON J:   Is it not the position that the fact that you contend for is, actually, qualified by the matters put to you by the Chief Justice, and that is that – let us just take Professor Christie, for the moment.  He expresses a view that there are degrees of rationality and degrees of reasoning, and that it is possible for a person – even taking your fact – to have the relevant intent.

MR TOKLEY:   I would have to, I think, respectfully disagree on that point, your Honour.  I do not think, in my respectful submission, that Professor Christie went as far as that. 

GORDON J:   I am looking in particular on page 123, between lines about 18 through to 29 and those two questions there.  It is, of course, not useful just to identify two but they are, I think, directed at this issue. 

MR TOKLEY:   Yes, your Honour, and I would, respectfully, put the emphasis upon the question that appears between lines 20 to 30, where the answer was in respect to that question – if I may just for the sake of brevity – where it said “and to be aware” – sorry:

Would it be possible for example for a person to be, a person who was extremely intoxicated, who was at say levels around point 3 or above, for that person to be punching and kicking repeatedly another person and to be aware that they were punching and kicking that person but to be unaware of what the consequences of those punches and kicks might be?

The answer is:

Certainly, yes.

So, I accept, your Honours, that it is ultimately for a jury to evaluate the relevance of evidence in the context of all that is being said and being done, but I would respectfully submit that the tenor of Professor Christie’s evidence was that this person was so affected by alcohol and the drugs that he had been taking that there would have an exacerbation of cognitive impairment, and so that is why he gave the answer that he did at around line 28.

Your Honours, I accept that this is – and that is why we put it on the basis that it is a case that seeks leave in the interests of the administration of justice in the particular case.  We cannot advance a ground of public importance, but we say that when regard is had to the totality of Professor Christie’s evidence and to the basic agreement between the experts, the fact that there was no challenge to the experts being wrong or to the calculation by Professor Christie of the blood alcohol content, that in such circumstances, there was sufficient factual agreement between the experts that it should have been a springboard for the juries to reason that there existed a reasonable doubt in the circumstances of this case.

Of course, it will be put against us that what someone said and did showed a degree of purposefulness but, on the other hand, I do not think that Professor Christie moved away from his basic point that, in all of the circumstances, there had been such an effect upon the mind of the person – although he could not say that he has acted as automaton, he could not say otherwise as well.

May it please the Court.  That really is the point in the case.

KIEFEL CJ:   Yes, thank you, Mr Tokley.  We need not trouble you, Ms Roberts.  It is our view that there are insufficient prospects of success to warrant the grant of special leave.  Special leave is refused.

The Court will now adjourn until 10.30 am.

AT 9.46 AM THE MATTER WAS CONCLUDED