Brown v The Queen

[2007] HCATrans 695

[2007] HCATrans 695

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B32 of 2007

B e t w e e n -

PATRICK FRANCIS BROWN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 NOVEMBER 2007, AT 1.37 PM

Copyright in the High Court of Australia

MR J.R. HUNTER:   May it please the Court, I appear for the applicant.  (instructed by Legal Aid Queensland)

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

GUMMOW J:   Yes, Mr Hunter.

MR HUNTER:   If the Court pleases.  The applicant was convicted of manslaughter in circumstances that strongly suggested that the killer, whoever it was, had deliberately killed the victim using at least one and perhaps a number of different weapons.  The applicant was, though, specifically acquitted of a charge of armed robbery that alleged that he was armed with certain of those weapons.  He was, rather, convicted of the offence of robbery in company.  The applicant’s submission is that an analysis of the verdict carries with it the inevitable implication that the jury must have failed to be satisfied ‑ ‑ ‑

GUMMOW J:   Look, just a minute.  You are not in the Court of Criminal Appeal.  You have to demonstrate to us that something went sufficiently wrong in the Court of Criminal Appeal for us to intervene.  You do not do that by starting a meander through what happened at the trial. 

MR HUNTER:   The point that I am seeking to make, your Honour, is that when the Court of Appeal analysed the verdicts, the Court of Appeal, with respect, accepted that the verdicts might have occurred as a result of some failure to adhere to the directions given to the jury by the learned trial judge.  For example, it was observed by her Honour the President at paragraph [29], which appears at page 94 of the application book, halfway through that paragraph:

It may be that the jury adopted a literal approach to the questions concerning the circumstances of aggravation listed in the document concerning the verdicts –

In a similar vein, Justice Holmes at paragraph [53], which is at page 102 of the application book, observed at line 2 on that page the suggestion that he was:

in company with someone who was armed; it was entirely explicable by the way the verdicts were left.

The applicant’s contention is that the directions given to the jury by the learned trial judge – and I have set those out in the outline commencing at paragraphs 2.2.4, which is at page 111 of the application book – in my respectful submission, left no room for doubt about what was required for the jury to be satisfied that the applicant was guilty of being armed and it did not involve, necessarily, him being personally armed.  So the submission is that where the Court of Appeal erred to begin with is in failing to give proper regard to the verdicts of the jury which, as I submit, contains with them the necessary implication that the jury were not satisfied that the appellant was a physical participant in the killing, because if he was, the evidence suggested that he must have either personally had an intention to kill or do grievous bodily harm or been well aware of the intention of the killer. 

That then leads to an analysis of the directions given with respect to the offence of manslaughter.  The direction given, again, is set out in my outline at page 111 at paragraph 2.2.2 and there your Honours will see that the direction given left it open for the jury to convict the applicant of manslaughter on the simple basis that he somehow aided the other person, the killer, whoever it was to assault the deceased.

HEYDON J:   You say that there should have been a direction that the accused should have foreseen the death of the victim as a possible outcome?

MR HUNTER:   Not that he necessarily himself foresaw death as a principle outcome, but that ‑ ‑ ‑

HEYDON J:   A principal offender. 

MR HUNTER:   That it was necessary for the jury to have some regard to the nature of the assault that was contemplated by him when he gave the encouragement or participated in the aiding and that it was necessary for the jury to be satisfied that it was an objectively foreseeable consequence of that kind of assault that death might happen.

HEYDON J:   Was it not your client’s case at the trial that he himself participated in a very brutal assault but then went away before the fatal assault was inflicted on the victim?

MR HUNTER:   Quite so.

HEYDON J:   Does that not make the direction you say should have been given as compared to the one that was given rather academic?

MR HUNTER:   In my submission, given the way the verdicts fell ‑ ‑ ‑

HEYDON J:   You have two assaults.  One your client insinuates through the way the case was presented that his assault was a very bad one and then there was another one that was bad enough to cause death.

MR HUNTER:   Yes.

HEYDON J:   This difference between very trivial assaults that would not foreseeably lead to death and very serious ones that would just does not seem to be a live one in the circumstances of the case.

MR HUNTER:   My submission is that that issue is properly raised because of the way the verdicts fell.  Certainly that concession was made on behalf to the applicant at trial but it seems the jury did not prefer that argument or the one advanced by the Crown.  They seem to have arrived at some middle ground.  For that reason it is important to focus specifically on the directions that were given as to how they might get to manslaughter.

Now, the issue is not one that, as far as is able to be determined, there has been any consideration by this Court or, it seems, any other court with the exception of some obiter that was referred to by her Honour Justice Holmes at paragraph [51] of her Honour’s judgment at page 101.  This Court has considered the issue of accessorial liability very recently in the case of Darkan but my submission is that the absence of authority on the point is such as to raise this issue as to a question of general importance in the application of the criminal law in the Code states.  Those are the submissions.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Byrne. 

At trial in the Supreme Court of Queensland before Justice Wilson and a jury the applicant was convicted of manslaughter and robbery.  An appeal to the Queensland Court of Appeal was dismissed.  The applicant submits that the Queensland Court of Appeal was wrong in failing to accept that the trial judge erred in not directing the jury that he could not be convicted under the Criminal Code of Queensland unless he foresaw the death of the victim as a possible outcome.  The applicant further submits that he was only involved in a minor assault from which death was not a possible outcome. 

The case which the postulated direction assumes was not made at the trial.  There the applicant ran a case of being involved in an initially ferocious but non-lethal assault, but of departing the scene before a second assault which caused death.  The evidence was strongly against the idea that the applicant was only involved in a minor assault.  His trial theory of a ferocious assault was supported by the amount of blood on the applicant’s clothing and his retention of the deceased’s motorcycle for days after the crime.  Further, the applicant’s submissions do not appear to us to raise any question of substance concerning the construction of the Criminal Code. 

For these reasons, there are no prospects of success that on appeal the applicant could successfully demonstrate error and accordingly the application is dismissed.

AT 1.48 PM THE MATTER WAS CONCLUDED