Crocker v The Queen

[2014] HCATrans 294

[2014] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M13 of 2014

B e t w e e n -

MICHAEL CROCKER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2014, AT 1.30 PM

Copyright in the High Court of Australia

MR J.E. McLOUGHLIN:   If the Court pleases, I appear for the applicant.  (instructed by Victoria Legal Aid)

MR B.F. KISSANE, SC:   May it please the Court, I appear with MR P.J. DOYLE for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J:   Yes, Mr McLoughlin.

MR McLOUGHLIN:   Your Honours, this concerns what I submit are errors made by the Court of Appeal below in concluding that no substantial miscarriage of justice had occurred by reason of the error in charging the jury which the court found the trial judge had made.  The conclusion of the Court of Appeal is found at paragraph 27 of the judgment which is at page 133 of the application book.  I submit that there are, in essence, two errors.

The first is that the neat, checkmate‑like, logical conclusion that the court – or that Justice Redlich who wrote the majority judgment reached that the question of lies evidencing consciousness of guilt cannot have had any effect on the deliberations of the jury because by the time they came to consider that question they would have already reached the conclusion that the applicant had committed intentional murder, subject to the question of justification, and would only turn to the interview on the question of the defence of self‑defence relies on an assumption about the way in which the jury would go about its deliberations which the court was not entitled to make.

As a matter of common sense and practicality, if the jury is presented essentially with this relatively brief incident about which there are accounts from two participants and some objective evidence from various experts and some evidence from three quasi eyewitnesses who saw bits of what happened but not the most important bits, as a matter of common sense the first thing a jury would do would be to go to the two competing accounts that it had and, in looking at the account given by the applicant, they would have had ringing in their ears the eloquent demolition of it from the learned prosecutor below that it was, in essence, a calculated construct done with the benefit of legal advice and time to consider.

KIEFEL J:   What was that, I am sorry?

BELL J:   Sorry, evidence in consciousness of guilt?

MR McLOUGHLIN:   Evidence in consciousness ‑ ‑ ‑

BELL J:   But the same material was the only material that raised self‑defence, was it not?

MR McLOUGHLIN:   It was, but that leads to the second aspect of error, your Honour, and at the end of the day this is not an argument about whether self‑defence should have prevailed but, absent from any mention in the Court of Appeal’s judgment is the word “manslaughter”.  Now, this was a case on its circumstances which inevitably raised questions of manslaughter.  The circumstances of the attendance at - in circumstances of mutual anger, the attendance in the middle of the night of the two victims at the applicant’s house, the fact that certainly the two victims were affected by alcohol and perhaps cannabis as well ‑ ‑ ‑

KIEFEL J:   But the nature of the physical attack tells rather against manslaughter, does it not?

MR McLOUGHLIN:   Well, this is ‑ ‑ ‑

BELL J:   I think it was 12 centimetres in depth, the wound to the back.

MR McLOUGHLIN:   Yes, but two single – this is not an argument about what conclusion your Honours might have come to on this evidence or even what conclusion the Court of Appeal might have come to on the evidence.  The argument is about the applicant getting a fair trial and ‑ ‑ ‑

BELL J:   Yes.  Now, Mr McLoughlin, your ground of appeal complains that by reason of the failure to give a Zoneff direction, in essence, there was a substantial miscarriage of justice.

MR McLOUGHLIN:   Yes.

BELL J:   That is so?

MR McLOUGHLIN:   Yes.

BELL J:   So one is turning to the correctness or otherwise of the Court of Appeal’s conclusion that, notwithstanding the failure to give that direction, the verdict was inevitable.

MR McLOUGHLIN:   Yes.

BELL J:   What is wrong with considering that when - that in the context of the issues that were live at this trial, the only evidence of self‑defence came in the material in the interview ‑ ‑ ‑

MR McLOUGHLIN:   Yes.

BELL J:   ‑ ‑ ‑ and the jury must of necessity have excluded that as a reasonably possible version of events, leaving them with evidence of the wound itself and the inferences that might be drawn from that, amongst other things.

MR McLOUGHLIN:   Well, can I say first it is not strictly correct to say that the only evidence supportive of self‑defence came from the applicant’s interview.  Certainly a jury, before they could accept self‑defence as a defence, would have to be prepared not to reject the applicant’s interview.  But there is evidence from (a) the circumstances, that is, the attendance of two drunk and angry people at his house in the middle of the night; and (b) the three neighbours who give evidence which is not entirely consistent with Ms Lee’s account of what occurred.

So there is evidence which would have justified the conclusion that the applicant felt some degree of threat and Ms Lee accepted in cross‑examination that yes, she did have a history of convictions for violence of a not insignificant nature, and she accepted that she was a person who was prone to anger.  So all of those matters at least put it into a context where it was not an absurd proposition that the applicant might have felt some degree of threat.  So that is the first proposition.

But the real issue is that it was the question of – before you got to the question of self‑defence, the jury had to form a conclusion about the question of intent, and it is inconceivable that the jury would not have looked at the record of interview when considering the question of intent.  There were aspects of Ms Lee’s evidence which meant that the jury must have felt at least a question about whether everything she said was entirely accurate.

In those circumstances, looking at the applicant’s record of interview and concluding that it was not just false but it was a calculated lie, could easily have led the jury to conclude that therefore Ms Lee’s account of what occurred, in effect, was bolstered by the fact that the applicant was lying about it.  So that is why it is submitted that it was wrong of the Court of Appeal to conclude that the question of lies in the interview only would come into play after the jury had already reached the conclusion it reached.

Now, what your Honour Justice Kiefel says about the 12 centimetre wound is undoubtedly correct, but there are other ways of looking at that.  There are two fairly similar wounds inflicted, both of them are single wounds and Ms Lee recovered without surgical intervention.  It seemed, at least initially, that the fact that Mr – there was a degree of unexpectedness about the death of Mr Fielding in the sense that he was stabilised, transferred by air ambulance to Melbourne, operated on and it was only when he did not come out of the anaesthetic ‑ ‑ ‑

BELL J:   Medical science can do many things, Mr McLoughlin, but a stab wound penetrating 12 centimetres might be thought to be redolent of an intention at least to do grievous bodily harm.

MR McLOUGHLIN:   Well, I accept that, your Honour, but the question is the making of that decision on a proper basis based on the evidence that was properly able to be considered and not based on drawing an inference that because he is lying about this it must be because he intended to kill him.  So, that is the argument on that aspect of it, your Honour.

The other aspect of it is really – and it is a kind of corollary of the way the court reasoned about the impact of the lies, and that is that at paragraph 8 of the judgment it is said this was a single issue case.  Now, if the court had said, “We’ve concluded that there was an error in the way the judge charged the jury but we’re not going to consider whether this might have affected the jury’s deliberation of manslaughter because manslaughter wasn’t open on the facts of this case”, in my respectful submission, this Court would have thought that that was startlingly wrong. 

Similarly, if the court had said it was not going to consider manslaughter because the verdict of the jury of guilty to murder disposes of that as a possibility that also would have been startlingly wrong.  But, in my submission, that is, in effect, the way the court has dealt with the matter.

As I was attempting to elaborate earlier, there were things about the circumstances of this case which made manslaughter a possibility and the learned trial judge directed at some length about the issue.  In those circumstances, in my submission, the Court of Appeal made a kind of Gilbert error in the way it approached the application of the question of whether there had been a substantial miscarriage of justice.  If that analysis is accepted, what then follows are ‑ ‑ ‑

BELL J:   I would not take it that that analysis is accepted, Mr McLoughlin.  What the court did was to conclude, notwithstanding an error that the conviction for murder was inevitable, having regard to the evidence, as I understand the effect of Justice Redlich’s judgment and Justice Priest’s separate reasons concurring with that judgment.

MR McLOUGHLIN:   Well, they do so though, your Honour - Justice Redlich on the basis that the sole issue in the trial was whether self‑defence was made out and, because of the matters I have just explained, that was not correct.

BELL J:   The circumstance that the judge directed the jury on manslaughter does not of itself convey to me that manslaughter was a real issue, as distinct from self‑defence in a case in which, having regard to the nature of the wound, it might have been thought realistically not a great deal of chance of a question about intention.

MR McLOUGHLIN:   Well, there are two issues of law, in my submission, which arise from that question.  One is a question which is not entirely settled by this Court’s judgment in Baini which is, in concluding whether conviction is inevitable, does a court – and in Baini this Court talked about examination of the record – in a case like this where you are talking about the failure to give an important direction, does addressing the question of whether conviction is inevitable involve the court forming its own view on the basis of the record in the manner that was the case when vice was the law, or does the court instead consider, well, might a jury have looked at this differently if they had been given a proper direction about how this evidence might have been able to be used?

The second issue which arises is this.  It is essentially an issue which starts with Broadhurst, and that is, assuming the jury finds that the applicant’s record of interview is a pack of lies constructed and therefore not to be believed, do they, as is sometimes the direction given in courts in Victoria, simply put it aside and ignore it and decide the case on the basis of the rest of the evidence, or do they treat the fact that it impacts upon the applicant’s credit, do they treat that as a matter which allows them to be more comfortable in accepting the contrary version?

BELL J:   Now, this is not raised by your ground of appeal.

MR McLOUGHLIN:   No, no.

BELL J:   No direction was sought.  It is not raised by the ground.

MR McLOUGHLIN:   Well, it depends upon - in my submission, it is raised in the submissions but it is raised as a consequence of what follows from analysing the impact of the error on whether there was a miscarriage of justice or not, your Honour.  If I have failed in the formalities, I beg the Court’s pardon.  But it is a matter which follows from that, in essence.  So really they are the matters which I wanted to ventilate, your Honours.

KIEFEL J:   Thank you.  We need not trouble you, Mr Kissane.

There is no reason to doubt the correctness of the Court of Appeal.  The interests of justice do not require the grant of special leave.  Special leave is refused.

AT 1.50 PM THE MATTER WAS CONCLUDED