Forsythe v. The Queen

[2014] HCATrans 103

[2014] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B65 of 2013

B e t w e e n -

BEVAN CARL FORSYTHE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 MAY 2014, AT 10.50 AM

Copyright in the High Court of Australia

MR M.J. COPLEY, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC:   May it please the Court, I appear with MR D.C. BOYLE for the respondent.  (instructed by Director of Public Prosecutions (Qld))

CRENNAN J:   Yes, Mr Copley.

MR COPLEY:   Your Honours, the error in this particular case is to be found at application book page 101, first in paragraph [36] in the judgment of Justice Holmes, where she concluded that there was nothing in the evidence which raised accident.  She did say:

in any context other than that of unwilled act under s 23(1)(a).

But, of course, the applicant would say that section 23(1)(a) does not speak of an accident, it is only section 23(1)(b) of the Code which speaks of an accident.  So I say that the error is the conclusion after assessing the evidence that the evidence did not raise accident.  It is common ground and it has been established for a long time that an accident is an event which is not intended, foreseen or reasonably foreseeable. 

In the context of this case there was evidence – principally that given by my client – which raised the possibility that the death of the deceased man – that is the event, relevantly for count 1, and the pellet impact against McMillan’s body, which I contend is the event for the purposes of attempted murder, may have ‑ ‑ ‑

CRENNAN J:   Now, I think the trial judge made a direct inquiry at the trial, did he not, as to whether or not direction was sought under section 23(1)(b)?

MR COPLEY:   He did, and defence counsel said he did not seek that direction.  Now, that inquiry was made before the evidence of my client had ended, but I concede defence counsel did not say to his Honour at the end of all the evidence, “Something has changed, section 23(1)(b) is raised”. 

CRENNAN J:   On one view, what Justice Holmes is saying at paragraphs [36] and [37] is directed to an appreciation of what were the real issues in the case.

MR COPLEY:   Well, in my submission, one should not interpret what she says at paragraph [36] that way because she says:

But in the present case, there was nothing in the evidence –

Her Honour is asserting a state of satisfaction that the evidence just did not raise section 23(1)(b).

KIEFEL J:   Was the evidence that there were two shots and it was the first shot which killed the deceased?

MR COPLEY:   Correct.

KIEFEL J:   So the second shot which may have grazed Mr McMillan was not the shot that killed the deceased, in any event?

MR COPLEY:   That was the prosecution case and on the ballistics evidence that was certainly – it was certainly consistent with the ballistics evidence.

KIEFEL J:   The ballistic evidence was that to discharge the gun required considerable pressure to operate it and it had to be pressed twice, did it not?

MR COPLEY:   There were two triggers.  Each had to be depressed to get the gun to discharge, correct.

KIEFEL J:   The pressure required was not a light pressure?

MR COPLEY:   No, and the gun was not prone to discharge without pressure being applied.

KIEFEL J:   That may have been the reason why counsel for the defence did not seek a direction.

MR COPLEY:   It may have been.  It may have been that he thought perhaps tactically that he would like to put all of the eggs into the basket of section 23(1)(a), of course, as well.

KIEFEL J:   Yes.

MR COPLEY:   My submission is that the scenario that arises on the applicant’s evidence was that the death and the pellet impact occurred as three men in the case of the death, and two men in the case of pellet impact, struggled for control of a firearm, and in that ‑ ‑ ‑

KIEFEL J:   How could there be a struggle for control of the firearm when he is shot in the back?

MR COPLEY:   The applicant’s evidence was that the deceased man must have somehow have turned around just before that first discharge, but the applicant’s evidence was that prior to the first discharge the three of them – McMillan, the deceased and himself – were wrestling over the weapon, and then my contention is that that gives rise to, or provides a basis for a contention that the events occurred by accident. 

The applicant’s evidence was that he did not intend to shoot – sorry, intend to kill or do grievous bodily harm or, indeed, intend to discharge the weapon.  He said that he did not foresee that the weapon would be discharged.  I have quoted his evidence directly at page 109 of the application book at about line 20.  It was put to him that he:

must have known that the taking of a loaded weapon to the house involved the risk that someone would be shot.  He said “I didn’t see it that way . . . I just saw it of me standing a metre or so away making a threat, then leaving again.”

Now, of course, it would be put against me that an ordinary person would reasonably foresee a weapon being discharged – sorry, someone being killed or the pellets impacting against somebody.  The response to that is that that was a question for the jury.  It might very well be reasonably foreseeable that in the circumstances the weapon might discharge but that is a long way short of it being reasonably foreseeable by the ordinary person that a death would follow and/or that the weapon would actually hit someone.

Having incorrectly, in my submission, concluded that there was no evidence raising accident, her Honour then said that effectively there was no room for section 23(1)(b) to operate because the jury had found that the discharges were willed acts.  That, in my submission, rather suggests that her Honour regarded the jury’s determination about the possible application of section 23(1)(a) as necessarily indicating that, for example, they would never have acquitted on the basis of an accident, if that had been left to them. 

But the difficult with that proposition is this, your Honours.  A punch to the face may well be a willed act and a consequence from a punch, it may reasonably be foreseen, would be a bruise but if the offence is, for example, grievous bodily harm, it can never be said, in my submission, that the willed act of a punch cannot give rise to the possibility or the scenario on the evidence that the consequence, namely grievous bodily harm, was reasonably foreseeable.

So it is here by analogy, taking a loaded shotgun into a backyard party might well give rise to an ordinary person reasonably foreseeing that

it may be discharged but not necessarily that someone would be killed or that the discharge would hit someone in the torso, as it did in the case of McMillan and so in the circumstances of this case, accident was raised and it obviously, in my respectful submission, concerned the trial judge to an extent, because he inquired of counsel about it and as we know, counsel disavowed any reliance upon it, but, of course the authorities are clear, if it is raised, it must be left.  Thank you, your Honours.

CRENNAN J:   Thank you.  We do not need to call on you, Mr Moynihan.

There is no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Queensland and the interests of the administration of justice are not engaged in this case.  Special leave is refused.

The Court will adjourn to reconstitute.

AT 11.01 AM THE MATTER WAS CONCLUDED