Box v The Queen

[2007] HCATrans 108

[2007] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 2006

B e t w e e n -

GARY BOX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 1.45 PM

Copyright in the High Court of Australia

MR N.M. COOKE, QC:  If it please the Court, I appear for the applicant.  (instructed by Martinez Quadrio Lawyers)

MR M.J. COPLEY:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

HAYNE J:   Yes.  Mr Cooke.

MR COOKE: Your Honours, in this case the applicant was convicted of murder along with another person on a joint indictment for murder. In the circumstances, the case was entirely circumstantial and the Crown was not able to point to which of the two men actually performed the act of killing. In those circumstances, in our submission, the importance of the judge’s direction on aiding under section 7 of the Criminal Code was particularly important.

In the upshot, the trial judge directed in respect of the murder that the murder if it was done by one of them had to be done with the appropriate intention.  If the other party was an aider then he had to know at the time when he was he rendering his assistance that the other party intended to kill the victim.  The judge gave the appropriate charges to the jury in respect of the murder.  She also told them that if they were not satisfied about the intention, either of the aider or of the principal party, that they should acquit of murder.

Your Honour, nowhere in the judge’s charge did she in fact direct the jury that if they were considering a case of the aider that if they were not satisfied beyond a reasonable doubt that the aider knew at the time when he was rendering his assistance that the other party intended to kill, or cause grievous bodily harm to the victim, then they should acquit on the charge of murder but could convict on a charge of manslaughter.

HAYNE J:   We need to take account, do we, of what appears at page 16 of the application book in lines 7 through to about 28 or 29?

MR COOKE:   Yes, your Honour.

HAYNE J:   What do you ay is deficient about what is said there?

MR COOKE:   Your Honour, with regard to that, it is said:

If you are satisfied beyond reasonable doubt that one or other of Box or Martin was the committer of the offence and . . . the aider provided some degree of assistance to the committer knowing at the time of providing that assistance that the person committing the act of unlawful killing was intending to kill the victim or to do her grievous bodily harm.

That is in the context of a charge of if they are satisfied of that they can return a verdict of guilty of murder but there is nothing in there that would direct the jury’s mind to the question of whether they were satisfied beyond reasonable doubt that the aider in that particular situation knew that the other party intended to commit the murder.  The same can be said, if your Honours look at page 14 of the application book at lines 30 to 50, where her Honour was charging the jury, where she adverts to the fact that “not only the person who does” it, but, “anyone who assists”.  Then at page 15 of the application book beginning at line 30 she says:

When the offence is murder, as in this case, the person who assists or aids must know that at the time of proving that assistance or aid, that the person committing the act of unlawful killing was intending to kill the victim or to do her grievous bodily harm.

Now, as far as it goes, that is satisfactory, but when her Honour goes on to charge them in respect of what they should do on the murder indictment, she does not go to the aider and give the jury the instruction that they may not be satisfied or, if they are not satisfied beyond a reasonable doubt that the aider knew at the time that the other party intended to kill, that would be sufficient to avoid them giving a verdict of guilty of murder but would open the way to a conviction of manslaughter.

Now, your Honour, in my submission, that direction is required by the dicta of the High Court in Gilbert v The Queen, which is the case we referred to.  In that case of Gilbert the aider drove the car to the place where the victim was ultimately killed and the court there accepted that there would need to be a direction that, if the jury were satisfied that the aider at the time when he rendered his assistance did not know that the other party was intending to kill, that they could return a verdict of manslaughter and acquit on the charge of murder.

Your Honour, as a matter of law, we would submit, the applicant was entitled to have such a direction given to the jury and in the event that it was not, it constituted a grave miscarriage of justice.  In the Court of Appeal the President adverted to the dicta in Gilbert’s Case and applied it and, in her view, that rendered the summing‑up deficient in a serious way which constituted, in her view, a substantial miscarriage of justice.  Your Honour can see that from what the President said at page 71 of the application book, lines about 18 to 32.

We would emphasise that in this particular case it was important that a direction of that sort be given in view of the fact that the Crown could not identify which of them was the actual perpetrator of the crime and which of them was the aider and in circumstances where there was some evidence by an unreliable witness that the applicant was in fact an aider, he was sent off to get a bike chain, the inference being if the jury accepted that evidence that the applicant would be the aider.  So, in those circumstances it was particularly important, in our submission, that the trial judge direct the jury correctly in terms of what the President took to be the dicta of Gilbert and give him an opportunity, and by not doing it there was the opportunity of being acquitted of murder was lost and that constituted a grave miscarriage of justice.

HAYNE J:   As to those more general considerations of justice, what, if anything, are we to make of the facts that we are now, I think it is, six and a half years after trial and five and a half years after the Court of Appeal?  Are those matters of any significance?

MR COOKE:   No, your Honour, because the case, if it were to go to a retrial, would still be a case of circumstantial evidence which would be a case of inference being inferences being drawn by the jury.  The circumstances of the delay are in part explained by the fact that his former solicitors went into administration by the Law Society and their files were scattered.  In our submission, if there was a miscarriage of justice, by not giving the direction which I submit Gilbert’s Case requires that there should be, then in that case the time should be extended so that the appeal can be brought.

HAYNE J:   Now, trial counsel did not ask for a direction of the kind that you say should have been given?

MR COOKE:   No.

HAYNE J:   What, if any, significance do we attach to that?

MR COOKE:   None, your Honour, because it was raised in the Court of Appeal as a ground for seeking a retrial on the grounds of miscarriage and the President accepted that it could be accepted in the Court of Appeal as a ground for a retrial and that would not, in our submission, be a handicap, nor should it be held against the applicant, that is counsel or his solicitors, did not take these particular points during the course of the trial.  Sometimes these things are not as clear at the time as they are when one looks at it at a later date.

With regard to the majority decision of the Court of Appeal, in our submission, there is really only one judgment and that is the judgment of his Honour Justice Dutney and at application book page 79 and going over on to 80 in paragraphs [64] through to [66] Justice Dutney, in my

submission, adopts a pre‑Gilbert approach and says that a more favourable direction was given than was appropriate and therefore there was no miscarriage of justice.  He would apply the proviso.  But the court there, the  majority, did not consider the dicta in Gilbert's Case which goes further to say that, if you lose an opportunity for an acquittal you cannot say, well, you have got a more favourable summing‑up than you were entitled to, and you assume all the facts against you as might have been held to be the case formerly.  Because the court drew attention to the fact that juries decide cases according to the options which they are given and according to prejudices which they might have at the time.  And, particularly, the court in Gilbert’s Case referred to the present day feeling in the community that some retribution should be made to the victims of crime.

So that in this particular case, if the jury were considering the judge’s direction, they would perhaps think, if we are not satisfied about the intentional part of the aider, then our options are to acquit of murder and we will not do that because that would leave a victim of a horrendous crime unrecognised.  But if they were given the proper direction, they may well have adopted for the middle course of returning a verdict of guilty of manslaughter and in that sense the Court in Gilbert said he has lost the opportunity. 

So in nutshell, your Honours, what our submission is, that the trial judge was obliged in law to give a direction of the sort which we say was not given and, because it was not given, there was an opportunity for a not guilty verdict of murder was lost by the applicant and that in itself constitutes a grave miscarriage of justice.  In this particular case we have a Court of Appeal where the President seems to have adopted and implemented the dicta of the High Court in Gilbert’s Case, but the majority are still in an unreformed pre‑Gilbert Case mode set, if it were.  So in our submission, that is the special leave point. 

It was particularly important in the second ground that we adopt there.  In the situation where the other accused attempted to plead guilty to being an accessory after the fact, plus the evidence of the witness who was not entirely reliable, who suggested that the applicant was in fact an aider to the principal offender who was the other co-accused, in those circumstances where the jury have that inference on them, it was even more important for the trial judge to give a clear direction as to the intention which the aider must have and the onus of proving that being on the Crown, if the jury were not satisfied that they have been persuaded by the evidence that that was the case, a verdict of manslaughter would be open to them.  Those are the submissions, your Honours.

HAYNE J:   Thank you, Mr Cooke.  We will not trouble you, Mr Copley.

The jury direction for which the applicant contended in the Court of Appeal and would contend in this Court were special leave to appeal granted is a direction about the availability of a verdict of manslaughter, additional to those directions which had in any event been given by the trial judge.  We are not persuaded that it is in the interests of justice, either generally or in this particular case, that there be a grant of special leave to appeal. 

Accordingly, the application for leave is refused.

AT 2.02 PM THE MATTER WAS CONCLUDED