Bednikov v The Queen

[1999] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A34 of 1998

B e t w e e n -

PAVLIC BEDNIKOV

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 3.27 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MR W.A.G. MORRIS, for the applicant.  (instructed  by Bill Morris & Associates)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear for the respondent, with MS L.J.C. CHAPMAN.  (instructed by the Director of Public Prosecutions (South Australia))

GLEESON CJ:   Yes, Mr Tilmouth.

MR TILMOUTH:   May it please the Court.  As the Court knows, on his retrial, the ‑ ‑ ‑

GUMMOW J:   You need an extension of time, do you not?

MR TILMOUTH:   Yes, we do, if the Court pleases.

GLEESON CJ:   What is your attitude to that, Mr Millsteed?

MR MILLSTEED:   It is not opposed, your Honour.

GLEESON CJ:   Not opposed, very well.

MR TILMOUTH:   If the Court pleases, the problem on the retrial was how to deal with the acquittal of murder on count 1 in so far as it affected the jury’s verdict on count 2 of murder which was still open to them on the retrial itself.  Now, if the Court pleases, it was submitted ‑ ‑ ‑

GLEESON CJ:   If you would just remind us of the way things happened at the trial?  Apparently, the Crown Prosecutor, in opening at the second trial, told the jury, if they did not already know, what had happened at the first trial, is that right?

MR TILMOUTH:   Yes, both in respect of the acquittal of murder on count 1 but, more importantly, in our submission, that there was a conviction of murder on count 2, and, of course, we always opposed certainly the latter ever being mentioned to the jury because of its obvious prejudicial effect.

GLEESON CJ:   Why would it have an obvious prejudicial effect if the jury were appropriately instructed in relation to it?

MR TILMOUTH:   Because, if the Court pleases, once having heard, or if they had heard before, being reminded in the context of the trial that there was a conviction for murder, it might clearly make them feel safer in arriving at the same verdict.

GLEESON CJ:   What were the competing possibilities?  One possibility was to tell the jury the truth.

MR TILMOUTH:   Yes.

GLEESON CJ:   Another possibility was to let them speculate.  If one of them had read some newspaper reports that he or she remembered they could remind the others.

MR TILMOUTH:   Yes.  If the Court pleases, the normal direction to ignore anything that had occurred outside the court would have sufficed, in our submission.

GLEESON CJ:   But it had to be explained to the jury why they were not being invited to consider the possibility of murder in relation to the first killing.

MR TILMOUTH:   I agree with that but that is quite a different matter, with respect.

GLEESON CJ:   What was your proposal as to how the judge should have dealt with the fact that, inexplicably to them, perhaps, the jury were not being invited to consider the possibility of murder in relation to the first killing?

MR TILMOUTH:   I accepted before for his Honour that something had to be said, for very obvious reasons, about the acquittal of murder on count 1.

GLEESON CJ:   So, the only question, then, was whether the jury were told the whole truth or part of the truth?

MR TILMOUTH:   Yes, that is true, but, if the Court pleases, in my submission, the special leave point is more important about the way the jury dealt with the matter, although we say once they were told there was a conviction for murder that, in a sense, was the fatal piece of information.  But, of greater substance, in our submission, or taken with that is this:  it was submitted to the trial judge, as it was to the Court of Criminal Appeal, that it was insufficient to give a bare direction along the lines developed by this Court in Storey that the jury was bound by the verdict and should not find a basis of the facts inconsistent with that verdict but not tell them how they were to go about it in the circumstances of this case.

Now, it was critical, with respect, to do that because the two counts related in point of time very closely indeed, only a second or two apart.  Secondly, of course, the conduct which preceded these events – whether there were racial taunts, whether there was a fight or a scuffle - were exactly the same.  The background was identical to both of them.  Now, what was critical in the jury’s verdict on the first trial of not guilty of murder is that they must have accepted at least part of the defence case, or found it a reasonable possibility, that if there was an intention to kill it was one which arose either out of provocation or excessive self-defence, which is permissible in South Australia.  Or, alternatively, of course, there was a third option that they found that there was no intent but that it was a manslaughter by an unlawful and dangerous act.

Now, in our submission, what should have occurred is that in order to give effect to the principle of Storey, as it related to the facts of this case, was to direct the jury that if they thought there was an intention to kill they had to accept a version of the facts on that first count when considering the murder option on count 2, that there were circumstances which gave rise to provocation, if they saw it that way, or circumstances which gave rise to self-defence.

GLEESON CJ:   But there was no reason why the second jury had to deal with the matter by a process of reasoning consistent with the verdict of the first jury.  They simply had to give your client the benefit of the acquittal of murder.

MR TILMOUTH:   Yes, but, with respect, as a matter of fact, that benefit of the acquittal would only translate into the trial if they gave the benefit of the fact finding upon which that acquittal was based and it had to be a version of events which gave rise on the facts ‑ ‑ ‑

GLEESON CJ:   How would they know?  Six jurors at the previous trial might have decided manslaughter on one basis and six might have decided on another basis.

MR TILMOUTH:   Well, they would not, if the Court pleases, and herein lies what I submit is the special leave point.  Either the directions would have to be, in effect, that this jury would second guess the first jury and if they concluded there was intent to kill they would have to accept that there were mitigating circumstances, provocation, or excessive self-defence or that it was an unlawful and dangerous act, or as we put it as an alternative, if the Court pleases, the only proper way of reconciling this, in order to give the applicant the full benefit of the acquittal as a factual matter was to direct the jury that they had to approach the fact finding on the basis of the less serious offence which was open.

GLEESON CJ:   I cannot understand that.  Look at page 91, the second last line on the page.  What is wrong with the direction given in the second last line of page 91?

MR TILMOUTH:   So far as it goes, in principle, nothing.  It is perfectly along the lines of Storey.  I accept that.  But, if the Court pleases, in Storey it was also said that the jury had to be directed about the use of the material which had been admitted on the count on which there was an acquittal and, in my submission, simply to direct the jury on the jurisprudence or the theory of the law, on the one hand, which was done here I accept, but not related to the facts of the case, meant nothing, in my submission, of practical use to the jury at all.

GLEESON CJ:   Would the judge have been entitled to tell the jury that there were a number of possible different approaches that could have led the first jury to the conclusion of manslaughter and that there was no obligation on the first jury to be unanimous as to the approach they accepted in that regard?

MR TILMOUTH:   That may be, if the Court pleases, but what is, in my submission, irresistible on the facts is that that jury, that first jury, must have found some facts which grounded the verdict of manslaughter and, in my submission, it was not open to the second jury to find any more comparable basis of facts than those.

GLEESON CJ:   When you say they must have found some facts, they must have had doubts about some facts to find a verdict of not guilty of murder and that was what this was concerned with, was it not?

MR TILMOUTH:   Exactly.

GLEESON CJ:   It was the conclusion of not guilty of murder, not the conclusion of guilty of manslaughter that was under consideration.

MR TILMOUTH:   That is true, if the Court pleases, but there still had to be some factual basis or some reasonable possibility which grounded that result.  In my submission - and this is what is really important – that jury must have accepted the applicant’s, or some of the applicant’s evidence, supported as it was by the witness, Maslov, that there was a fight or scuffle, preceded by racial taunts, which gave rise to a situation of self-defence or provocation or both.  Now, in my submission, the second jury had to approach the case on no less a footing.  Now, with respect, simply to direct the jury that they were bound by that verdict, and so on - I concede that so far as it went the verdict was correct - enabled the second jury to revisit all the factual bases and, in my submission, that put the applicant in a worse position – potentially in a worse position – than he was before the first jury.

GLEESON CJ:   But it would have been a fundamental error, would it not, to instruct the second jury that they had to set out to make their process of reasoning conform to whatever process of reasoning might have operated with the first jury except to the extent that they could not find him guilty of murder?

MR TILMOUTH:   All that – if I could put it this way, with respect - clinical direction could have done was simply tell the jury, “On count 1 you cannot bring in murder but when you come to consider count 2 you can revisit the facts and you can, yourself, find if you want to, that there was a murderous intent and, in effect, the first jury was wrong.  Now, in my submission, that is where the error occurred here because it allowed the second jury to revisit the facts without having regard to the factual basis upon which that not guilty verdict must have been grounded in the first place and, in my submission, that really is the question of importance here.

Now, if the Court was troubled by the jury having to, as it were, second-guess what the first jury did, the way of resolving it, consistent with principle, is either to direct the jury to begin their analysis of the facts upon the least serious basis of the verdict of not guilty, which would have been manslaughter, or on the most favourable view of the facts, which was reasonably open on the evidence, which in this case also would have been manslaughter.

GLEESON CJ:   Why would they begin with the least serious?

MR TILMOUTH:   If there is no way of resolving on what basis the first jury elected to acquit - provocation, self-defence and so on - then, in my submission, consistent with principle, and such a principle exists in the law of sentencing, they should approach it on the basis of the most favourable version reasonably open.

GLEESON CJ:   Such principle was squarely rejected by the New South Wales Court of Appeal in relation to sentencing for manslaughter two or three years ago.

MR TILMOUTH:   It may be but it has been adopted by this Court, in my submission, in Alexander.

GLEESON CJ:   The court has held in New South Wales that the obligation of the sentencing judge is then to find the facts for himself or for herself.

MR TILMOUTH:   I accept that, if the Court pleases.  In this case, by the way, the first trial judge found it was excessive self-defence and so, on sentencing, did the second trial judge.  But that rather demonstrates my point, if the Court pleases, to be in an excessive self-defence situation there had to be facts which led the applicant to genuinely believe that what he did was necessary for his self-defence.  The verdict of manslaughter, of course, is explicable in that he went too far.  Now, my point is, if the Court pleases, that the second jury had to begin upon a similar and no more aggravated factual basis than the first jury, otherwise the benefit of the acquittal on murder on the first count would have been lost on the facts of the case.

The principles of Storey and the directions which were given consistent with them were acceptable, so far as they went, but they told this jury nothing whatsoever about how they were to approach their fact finding in the case and where they were to commence it.  The fact remains, in my submission, that that first jury must have accepted, at least in part, the applicant’s case and, in my submission, the second jury could begin on no lesser basis.  If the Court pleases, if I said any more in relation to that I would only be repeating myself but, in our submission, it is a very important question of principle.  Storey gives the principles but it does not tell trial judges how to apply it in the facts of cases and an extension is required that directs judges, in effect, that they must then relate those directions to the facts of the individual case before them.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Tilmouth.  We do not need to hear you, Mr Millsteed.  

In this matter the Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal and for that reason the application is dismissed.

AT 3.40 PM THE MATTER WAS CONCLUDED