Fry v The Queen

[1993] HCATrans 244

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A6 of 1993

B e t w e e n -

LINDSAY ALLEN FRY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

Fry 1 25/8/93

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 25 AUGUST 1993, AT 4.44 PM

Copyright in· the High Court of Australia

MS M.E. SHAW:  May it please the Court, I appear with my

learned friend, MR J.D. LYONS, for the applicant.

(instructed by M. Mitchell)

MS A.M. VANSTONE:  If it please the Court, I appear with my

learned friend, MS R.C. GRAY, for the respondent.

(instructed by P.L.J. Rofe, QC, Director of Public

Prosecutions (South Australia))

BRENNAN J: Yes, Ms Shaw.

MS SHAW:  The special leave question is whether the doctrine

of presumed provocation remains part of the common

law in this State. The expression "presumed

provocation" is that given to the common law rule

which states that where a person is charged with
murder arising out of an arrest which is not proved

to be lawful, he cannot be convicted of murder but

may be convicted of manslaughter. The rule means

that the lawfulness of the arrest is an element of

the offence which the prosecution must prove beyond

reasonable doubt. The case of Reg v Carey, (1879)

14 Cox CC 2L4, is the authority for that

proposition.

BRENNAN J:  Is there any doubt as to the authority to

attempt an arrest in this case?

MS SHAW:  No, there is no doubt as to the authority to

attempt the arrest. The issue that is raised

related to the manner of execution of the arrest,

and it is the applicant's submission that when one

comes to determine or the prosecution have to prove

the lawfulness of the arrest, then the lawfulness
of the arrest includes the manner of execution.

The manner of execution in this case, which was put

in issue by the evidence in the applicant's

submission, was particularly the evidence as to

excessive force by the police officers. In

addition to that - - -

BRENNAN J: Excessive in what respect?

MS SHAW: Excessive in the amount of force that was applied.

That is, that His Honour indeed left to the jury an

issue of self-defence which he told the jury was

raised because of evidence about the manner of the

arrest, the number of blows that were struck by

both police officers during the course of the

arrest.

BRENNAN J: This is before the fatal blow was struck?

MS SHAW:  Yes, it was. His Honour left to the jury the

issue of self-defence in two respects: first of

all, that the issue might arise because there was

Fry 25/8/93

excessive force in the attempt to arrest or,

alternatively, that the arrest may have become

unlawful during the course of the attempt to

arrest. So that in that respect, in my submission,

the evidence did give rise to the issue.

It is the applicant's submission that the

question of special leave is one of public

importance because in this State the arrest murder

rule continues to apply and is part of the common

law. That, of course, was most recently discussed

in Reg v Marshall, which is referred to in the

judgment of the Court of Criminal Appeal.

BRENNAN J:  What do you say of the conclusion reached by the

Court of Criminal Appeal in the judgment of

Acting Chief Justice White at pages 127 and 128

that the force used was reasonable and necessary?

MS SHAW:  It is our submission that that is a jury question.

His Honour the trial judge clearly considered that there was a question for the jury on the evidence

as it was adduced and, in our submission,

His Honour Justice White's assessment of the

evidence should not foreclose the accused's right

to the direction at first instance.

GAUDRON J: But what about the jury's deliberation on that

question with its return of the verdict of guilty?

Is the question not closed off by the guilty

verdict?

MS SHAW: In our submission, no, because the issue of

self-defence necessarily involved a consideration of the accused's state of mind. The issue of the lawfulness of the arrest in relation to the rule

which might lead to a mitigation of the result,

namely, a result of manslaughter rather than

acquittal, does not focus on the accused's state of

mind at all but merely deals with an issue of

excessive force on the part of the police officers.

In other words, the rule contemplates that if the

response of the accused is reasonable he is

entitled to a complete acquittal. Clearly, the

jury rejected that result on the verdict. However,

the rule of presumed provocation means that the

result is mitigated to manslaughter because of the

failure to prove the lawfulness of the arrest. In

that sense, in our submission, this accused was

deprived of a potential verdict of manslaughter.

BRENNAN J: Is there any case where this doctrine of

presumed provocation applies by reason of the

manner of the exercise of the power of arrest as

distinct from the authority to arrest?

Fry 3 25/8/93

MS SHAW:  In the case of the Reg v Tommmy Ryan,

His Honour Justice Windeyer, at page 185,

specifically referred to the doctrine as including,

not only the authority for the arrest, but the

manner of its execution. And, of course,

subsequent to Tommy Ryan, in the history of the

law, Christie v Leachinskywas handed down not

Christie v Leachinsky
until 1947. Clearly, in the the accused of the fact of arrest, and the reasons

for it, could render the arrest unlawful. The

doctrine is directed towards the unlawfulness of
the arrest and, in our submission, irrespective of

the basis upon which it is alleged that that

unlawfulness can exist.

BRENNAN J:  What is the part in Justice Windeyer's judgment

to which you refer?

MS SHAW: At page 185, in the second line:

But this protection of the law is extended

only to persons who have proper authority and

who use that authority in a proper manner.

BRENNAN J: Then he goes on to identify what is meant by it.

MS SHAW:  Yes.

BRENNAN J: Points of authority, legality of process,

matters in regulatory of proceeding. That is

scarcely consistent with the use of force which

might be in excess of that which would otherwise be

necessary to effect an arrest.

MS SHAW:  In our submission, the rationale of the rule is

that when an officer has no authority to arrest, he

is, in effect, acting not in the execution of his

duty. So that, if he uses excessive force and the

applicant relies on the Victorian Full Court

decision of Reg v Galvin (No 2), that once the

officer uses excessive force he is, in effect,	acting outside the proper execution of his duty,
and therefore his authority is no longer there.

In that sense, in our submission, it is not a

question of niceties of the expression used to
describe the basis upon which an arrest can be held

to be unlawful, but rather the result of the

conduct. Does it take the officer outside of the

lawfulness, outside his authority, on whatever

basis the common law develops to be a proper basis

for that result to occur. We say that it is not

until Christie v Leachinsky that the common law

lays down procedural requirements which affect the

manner of execution of the arrest and a case, such

as Reg v Galvin, the Victorian decision,

Fry 25/8/93

specifically refers to the excessive force in

arrest, as taking the officer outside of the

execution of his duty.

In our submission, the importance of the

doctrine in this State, in particular, relates to

the application in this State of the arrest murder

rule, and it is our submission that the rule was
initially developed to complement, to some extent,
the rigours of the arrest murder rule.

So that the first basis for the rationale for the rule was that the unlawfulness, in effect,

amounted to not just a provocation to the accused,

to what was described as all subjects of England.	that is, a_presumed provocation, but a provocation considerations which support the continued existence of the arrest murder rule, in that it is
a rule which is said to serve to protect officers
of the Crown. In our submission, the development of the rule of presumed provocation was a counter
balance, to some extent, to that strict rule in that, as Their Honours in Tommy Ryan discuss, it was said to be a rule which recognized the right of the citizen to liberty, that is, his right to
resist unlawful conduct, and it was specifically
expressed not to be exculpatory, but merely a
merciful result or a mitigatory result, because of unlawfulness in the arrest itself or in its execution.

It is our submission that His Honour White,

when he concluded, in the appeal book at pages 122

to 123 that the rule was in effect overtaken by

common law provocation, has misunderstood, in our

respectful submission, first of all, the remarks of

His Honour Justice Foster in the Reg v Tommy Ryan

and, secondly, in our respectful submission, the

nature of this rule. In our submission, His Honour

appears to have taken the view that because the

rule has been given the name of presumed

provocation, that it, therefore, bears some

relationship to common law provocation.

In our submission, the rule is merely a rule

which states the consequences of the failure of the

Crown to prove the lawfulness of the arrest and

nothing more, and in that sense, in every case

where there is a death caused during the course of
an arrest, then it must necessarily be a

consideration of a court as to what consequences flow from the failure to prove the lawfulness of the arrest.

Secondly, His Honour appears to have

interpreted His Honour Justice Foster's remarks as

Fry 25/8/93

referring to - this is at the bottom of page 122,

line 25 of the appeal book. His Honour appears to

have understood His Honour Justice Foster in

Tommy Ryan as setting out the terms of the statutes

of 1828 and 1803, whereas, in our submission, what

His Honour Justice Foster was in fact doing at

page 206 was specifically setting out the common

law rule as we contend for it, and that His Honour

at page 206 of Tommy Ryan was recognizing that rule

as being in existence and applicable as at 1890.

It appears that because His Honour

Justice White interprets His Honour

Justice Foster's remarks to refer to the statute,

he then concludes that the introduction of the

ordinary man test to common law provocation must

necessarily have meant the introduction of that

concept to presume provocation.

However, in the applicant's submission, not only in the case of Reg v Carey in 1879 and in

Reg v Tommy Ryan in 1890, in the New South Wales

Court of Appeal, was the rule recognized and

applied, but it was recognized and referred to in

the text in England in Archbold in his 31st edition

in 1943, in Halsbury's Laws of England in 1955 in

the 3rd edition, before the Homicide Act (1957) in

England repealed the arrest murder rule.

The text in England specifically cited cases

such as Reg v Allen and Reg v Carey, as setting out

the relevant principles to the consequences of the

failure to prove the lawfulness of the arrest.

In the case of People v White, (1947) IR 247,

the Court of Appeal in Ireland applied the same

common law rule to substitute a verdict of

manslaughter when there was a failure to prove the

lawfulness of the arrest.

It is our submission that His Honour

Justice White, when he concluded that in any event

if the rule did continue to exist it had no

application in the present case, was erroneous; in

particular, as I have already put to the Court,

His Honour said that the issue was confined to a

consideration of whether or not there is proper

authority for the arrest. The Court has heard my

submission that His Honour's conclusion in that

respect is inconsistent, in our submission, with

cases such as Christie v Leachinsky and Reg v

Galvin (No 1).

It is our submission that the justification

for the application of the rule in cases of
excessive force and in cases of failing to give

notification of arrest are at least as great as

where the arrest occurred without authority. At

Fry 6 25/8/93

the applicant's trial the trial judge, at page 36, point 8, of the appeal book directed the jury that the arrest was authorized by law. Therefore,

His Honour's directions, in our submission,

effectively removed from the jury's consideration

any issue as to the lawfulness of the arrest.

BRENNAN J: What possible evidence was there to support a

suggestion that the arrest was unlawful?

MS SHAW: Well, in our submission, as I have said to the

Court, the evidence of excessive force - - -

McHUGH J: What, from Mr Chenowyth and Mr O'Brien.

MS SHAW:  Mr Chenowyth and Mr O'Brien, yes.

BRENNAN J: But here was a man who was wielding a knife, who

robbed a woman and was making an escape.	What are
the police supposed to do?

MS SHAW: Well, no doubt Your Honour, that was the Crown's

argument.

BRENNAN J: It is not a bad one, is it?

MS SHAW: Well, it is quite a good one, but the Crown have

many good arguments that do not deny the accused

the right to have put to the jury his case, bearing

in mind that the jury heard the accused and they

heard the evidence of other witnesses as to the

action of the police. It is clear that the police

officer, Constable Lewcock, did in fact approach

the accused on the bus, first of all, and at that

stage it is clear that he did not say to the

accused words along the lines of, "You are under

arrest" and "What for?" Once he approached him,

the accused's case was that he actually had a baton

in his hand and seeing the baton in his hand, the

accused left the bus and did not produce his knife

until just before or after he alighted from the
bus.	The accused's evidence was that the conduct

of the police led him to believe that the police

were, in effect, going to knock him out or kill him

rather than merely arrest him, although, of course,

he agreed from what he knew that they would be

coming to arrest him.

It is our submission that the jury were

entitled to find that the conduct of the police was

capable of raising a doubt as to the lawfulness of

the arrest and that the verdict should be mitigated
to that extent. In our submission, this rule is
important because although in this particular case

the accused always said he knowingly stabbed the

officer, the arrest murder rule applies to accused

persons who do not have a specific intent and

Fry 25/8/93

therefore this rule applies to persons who do not

have any specific intent. In our submission, when

this accused was charged with murder he was

entitled to the jury's consideration of this

potential verdict, bearing in mind that, as I have

said, the trial judge considered the evidence was
fit for the jury's consideration on the issue of

self-defence. Indeed, His Honour Justice White in

the appeal book at page 121, line 10, when

referring to the issues of self-defence and

provocation said:

If the blows were as many and as violent and

as often to the head as these witnesses

described, the jury might have thought it

possible that the accused might have believed

that what was happening was a beating rather

than a pursuit to apprehend.

So, in our submission, it is not to the point

to go on and say that the accused's admissions, in

effect, removed that issue, because the jury were
entitled to look at the accused as a person of

borderline intelligence, in the lowest 10 per cent

of the population, who was giving evidence a long

time after the event and may have, therefore,

giving his evidence to some extent on

reconstruction and hindsight.

But in any event, in our submission, it is

clear that there was evidence in the case which we

say was fit to be left to the jury on this issue.

More importantly, we say it was a jury question and

the accused was in fact part of the trial or the

subject of a trial when the jury were told that

that was not an issue for them.

As I have said to the Court, it is our

submission that this purported abrogation of the

rule by His Honour Justice White has far-reaching

effects in this State because it applies generally

to all persons charged with murder arising out of

an arrest, including those who do not have an

intention to kill.

BRENNAN J:  Ms Shaw, your proposition about presumed

provocation assumes, does it not, that it may be

established by an error on the part of the accused

as to whether excessive force was being threatened

against him? The question of whether there is

presumed provocation, does it depend at all upon a

perception by an accused person of what the

circumstances are, or is it an objective question

as to whether or not there is excessive force being

used?

Fry	25/8/93
MS SHAW:	It certainly does not depend on the accused's

perception, but it does depend upon what the jury
would consider to be reasonable force to arrest the
accused, that is, reasonable force on the part of

the police officer.

BRENNAN J: It is a question, I take it, whether, in the

light of the evidence as given, there is any error

on the part of the Court of Criminal Appeal

concluding that there was no excessive force.

MS SHAW: Well, in our submission, that is not a matter upon

which the Court of Criminal Appeal can make a

finding of fact when it was an issue for the jury.

BRENNAN J: Yes.

MS SHAW:	And just finally, in our submission, this rule
should apply in cases, when there is an arrest

situation, for the same policy reasons that were

responsible for it initially being part of the

common law. We say that those policy reasons

continue to apply and that this accused did not get

the benefit of directions that he was entitled to

as a matter of law and therefore, in our

submission, he has not had a fair trial. We say it

is a matter of special leave, but because it

represents, in effect, the abolition of a potential

verdict of manslaughter to an accused who is

charged with a murder that occurs during the course

of an arrest and it, therefore, must be a matter of

public importance to the administration of justice

in common law States. If the Court pleases.

BRENNAN J:  We need not trouble you, Ms Vanstone.

BRENNAN J: There is no reason to doubt the correctness of

particular, there was no basis of fact for submitting to the jury either an issue of presumed

the conclusion arrived at by the Court of Criminal

provocation or an issue of actual provocation. Accordingly, special leave will be refused.

AT 5.10 PM THE MATTER WAS ADJOURNED SINE DIE

Fry 9 25/8/93