Byrne v The Queen

[2018] HCATrans 59

[2018] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M153 of 2017

B e t w e e n -

DWAYNE MICHAEL BYRNE

Appellant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 23 MARCH 2018, AT 1.23 PM

Copyright in the High Court of Australia

MR D.D. GURVICH, QC:   May it please the Court, I appear with my learned friend, MR P.J. SMALLWOOD, on behalf of the applicant.  (instructed by Patrick W. Dwyer)

MR B.L. SONNET:   May it please the Court, I appear on behalf of the respondent.  (instructed by Office of Public Prosecutions (Vic))

MR KEANE:   Yes, Mr Gurvich.

MR GURVICH:   We make application for compliance with the time limit be dispensed with, your Honours. 

KEANE J:   Any problem with that, Mr Sonnet.

MR SONNET:   No opposition, your Honours.

KEANE J:   Very well, you have that leave.

MR GURVICH:   Your Honours, this was a circumstantial case where the central issue was the state of mind of the accused and that circumstantial case was premised on uncontroversial facts.  It is in those circumstances where the Court of Appeal has concluded that the jury could have entertained a reasonable doubt that there was an obligation to acquit, so if we may take your Honours to that critical passage at page 156 of the application book at paragraph 23, on the third line:

The jury could have entertained a reasonable doubt about whether the applicant intended to kill Mr Locke.

This was not a case where a reasonable alternative was fanciful or mere conjecture.  This was not a case where there might be said to be a failure to consider all of the circumstances of the circumstantial case.  There was nothing remote or fanciful about the alternate hypothesis.  The reference by the Court of Appeal to “The jury could entertain a reasonable doubt” meant in these circumstances that that doubt was reasonable and rational and there was therefore an obligation to acquit.

KEANE J:   It is plain beyond any shadow of a doubt that they did not mean that because their Honours plainly regarded the jury as being entitled to convict. 

MR GURVICH:   They drew that conclusion, however were not entitled, in our submission, to draw that conclusion in these circumstances because the reference to the entitlement to convict was based upon, wrongly, we submit, the ultimate question as expressed in M’s Case - there is no problem about that - but in the context of a case more like Knight where once there is

a reasonable hypothesis consistent with innocence there is no entitlement.  On the Court of Appeal’s reasoning they reached the conclusion that there might have been a doubt in circumstances where there must have been a doubt. 

EDELMAN J:   That is the point about the use of the word “could”.  “Could” is being used in the sense of “might”, not “must”. 

MR GURVICH:   That is the question, your Honours.  That is the central question.  What we say about that is the word “could” in that context here means must.  It must mean must, it must mean not open, that it was not open.  In other circumstances we accept that the use of word “could” would convey the meaning “might” and that it was open to reach that verdict but in these circumstances where clearly there was no suggestion by the Court of Appeal that the alternate hypothesis was light or rash, as sometimes the words have been used, was not mere conjecture, that conclusion could not be reached. 

Although there is that reference in paragraph 25 your Honours to an entitlement, an entitlement to be satisfied beyond reasonable doubt, what we say about it is that the path to the answer to the ultimate question, the ultimate M question, was not in accordance with proper principle and it is in the interests of justice to correct that incorrect reasoning.  Those are our submissions, your Honours.

KEANE J:   We do not need to trouble you, Mr Sonnet.

The decision of the Court of Appeal is not attended by sufficient doubt to warrant the grant of special leave to appeal.  Special leave is refused.

The Court will now adjourn until 10.15 am on Tuesday, 10 April in Canberra.

AT 1.28 PM THE MATTER WAS CONCLUDED