Gall v The Queen

[2016] HCATrans 28

[2016] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S168 of 2015

B e t w e e n -

BRUCE EDWARD GALL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2016, AT 10.21 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR D.P. BARROW.  (instructed by Alamein and Co Lawyers)

MS W.J. ABRAHAM, QC:   If the Court pleases, I appear with my learned friend, MS G.M. O’ROURKE, SC for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes, thank you, Ms Abraham.

MR GAME:   We are a little bit out of time and so we seek an extension, if the Court pleases.

MS ABRAHAM:   No issue.

BELL J:   Yes, very well, you have that extension.

MR GAME:   Can I take your Honours to the application book at page 209.  Now, paragraphs 158 to 159 – I should just mention this, of course, my client was charged with other much more serious offences of which he was acquitted.  This was the least serious.

BELL J:   Just so I understand it factually, am I right in my understanding that your client also pleaded guilty to an offence arising out of the listening device material that was recorded some two months after the event and, in short, that was an acknowledgement that there had been encouragement in that conversation to a person to give an inaccurate account of the events.  Yes, all right.

MR GAME:   I mean the accessory after – I should just say one other thing, the accessory after the fact to murder carries 25 years.  If you are in the alternative, it carries five years, so it does make a difference.  Now, if I could just explain what the errors were that were established - if we go to page 209, paragraphs 158 and 159.  So the first error that is established referred to in 158 is that the directions did not direct themselves to my client’s state of mind about his son’s state of mind.  So, you would have to be satisfied that he did not believe, for example, that it was done in self‑defence or he did not believe that it was done in excessive self‑defence. 

BELL J:   Yes.

MR GAME:   So, if he, for example, thought there was a gun at the time but by the afternoon or later on when he was – the conduct, the subject in this case, was him washing away blood under the roof, under the outside shed.  So the first error is that the jury were not directed as to the critical question about his state of mind.  The second error is that they were prevented from considering the alternative at all.

BELL J:   Now, the Court of Criminal Appeal accepted that.

MR GAME:   Yes, I understand that but it makes it – if you just go back to that passage on the bottom of 207 you can see from that passage in Justice Crockett’s judgment that – and so it was deliberately done this way –all the jury have to be satisfied about is, shall I say, the state of mind about the physical acts that went to make up the conduct so it is not the actual offence.  That is – when you examine the cases as the court did, they accepted that proposition. 

BELL J:   Yes.

MR GAME:   Then when we come to paragraph 172 – so we have made out the error.  We are in wrong decision on a question of law.  I should add that virtually nothing was said about the proviso at any stage by anyone except I was asked a question about this piece of transcript in the submissions in the Court of Criminal Appeal.  Now, we come to paragraphs 172 and 173.  If one looks at cases - and I have in mind cases like Holland where the jury were not directed about attempt but the court said, well, they would have understood what “attempt” meant - or you look at a case like - one that your Honours both recently were involved in is Reeves where the question is whether or not the misdirection led the jury to wrongly reason as to guilt - or Krakouer or these cases, they are all about whether or not the directions, shall I say, got in the way of a proper determination.

Now, this case, when you get to 172 if that is the sine non qua of, shall I say, Weiss, the court’s satisfaction of beyond reasonable doubt, then the court has not addressed themselves to the real question which is the significance of the errors and our point is the jury never actually got to it.  Nobody ever addressed the actual question that the “accessory after the fact” offence gives rise to. 

That is quite difficult because you would have to draw an inference beyond reasonable doubt about his state of mind at the time and his state of mind could be quite different than his son’s and the evidence was - he put to Fox you could take it was largely disbelieved.  It had been put to Fox that he had a firearm and the son, when he gave evidence, said that the father said “He’s got a gun”

Now, the court said he is running towards the son at the fence, sure, but he is running away from Green and he is being kind of held virtual prisoner by Green and Fox while Green takes this other person, Lapich, away.  So the state of mind about the son is an entirely different – about the father is an entirely different consideration than the state of mind about the son. 

So, you get to paragraph 173 - we say that is a bridge too far because the proviso here has been turned into a subjunctive exercise about what the jury would have done if they had ever considered it and a very summary decision about a question which the court does not properly frame for itself.  We say that at that point this is a case where you get to this point.  That is a necessary presupposition of the trial.  The court has not addressed themselves to that question at all.  So, that is where we stand on that. 

Then we come to paragraph 175.  All of this is speculation about what the jury may have thought about this or that and we say that is not permissible.  You cannot just go around speculating about what the jury might have decided about other issues and would have decided if they had decided this.  No case in this Court goes that far.

BELL J:   Save in the event that the court, on a review of the whole of the record, concludes that no rational inference, other than the inference of guilt, could have been drawn. 

MR GAME:   We say, no, your Honour, because you have to also consider the significance of the error in terms of process, that is to say the jury never considered it.

BELL J:   I understand that.

MR GAME:   But we do say ‑ ‑ ‑

BELL J:   You say there is a wild error here.

MR GAME:   Yes, that is right, but we also say that if you set that question up that your Honour just put to me properly you would have to say have they excluded the possibility beyond reasonable doubt that he thought that his son was acting in self‑defence? 

BELL J:   It is not have they excluded it.  Surely the court, at this point in the exercise, is looking at has that inference been excluded as one that no reasonable person – no reasonable juror could have drawn.

MR GAME:   Well, they would have to be satisfied – yes, I mean, that is just ‑ they would have to be satisfied about that beyond reasonable doubt.  My point is a slightly different one is you have to set the thing up with respect to the offence properly framed.  Then, just asking yourself about whether or not he could have thought he had the gun is not going to answer that question for this reason - he might have had the state of mind when he was running away.  He may have been disabused of the idea by the time he sweeps away the blood but he does – excessive self‑defence involves the notion that his son went too far so the presence or otherwise of guns, the court is thinking about that based on assumptions about what the jury might have thought is not going to resolve the question.  So, can I come then to this passage – we come around to this passage at 175.  Now, the evidence was not the transcript, the evidence was the tape. 

BELL J:   That tape was played to the jury and the construction on what it is that a person listening to that tape can hear, for which you now contend, was not argued at trial, was on one view contrary to the way your client’s counsel opened his case and was not argued on the hearing of the appeal.

MR GAME:   No, no, your Honour, that is correct but I did put an argument about that passage in which I said look, this is two months later and you cannot draw any significance from what is said, but by the time the court came to – before the court had delivered their judgment, the court knew – sorry, it was – the jury were told the evidence was not the transcript.  The jury were asked to listen to the transcript and the jury were directed by the judge – sorry, to listen to the tape and the judge asked the jury to listen to the tape. 

Now, if the court is doing a Weiss exercise in circumstances such as this, the court has to listen.  The tape was provided – the Crown made the tape available to the court.  But we did not know that this was the case until afterwards but if you compare what is on paragraph 175 with what is on page 240 it throws an entirely different light on what was said in the conversation. 

Now, the court was aware of that before they delivered their judgment and yet they relied on this passage and refused to listen to the tape.  That cannot be right and it does not matter who draws it to their attention – sorry, I will just go on – but then if you look at paragraph 175 it says the submission is contrary to the evidence of Kevin Gall on this very point.  I will not ask your Honours to read it but at page 242 in the reopening judgment we pointed out to the court that - later in Kevin Gall’s cross‑examination he said, “Look, I do not know, that is what the transcript says.  You are asking me a question about the transcript”.  He made it quite plain.

BELL J:   Mr Game, can we cut to the chase here?  If, in a conversation two months after relevant events your client had said “whatever now you assert he said”, how does it relevantly bear on the issue which related to his understanding of what was occurring at the point when the gun was fired at the deceased and at Mr Fox?

MR GAME:   That was my point in the Court of Criminal Appeal.  It is not going to touch on the question about his state of mind a short time after the offence.  But that is rejected by the court so we are saying they did not conduct the exercise properly.  But we then come to a separate – I sense some – I will not say what I was going to say.

BELL J:   I understand your wild point, Mr Game, but this does not seem your strong point.

MR GAME:   No, I will just put this to your Honours.  What the court does, they blame us for the problem and then they say, even though it had been drawn to - and they say that is a reason why leave – why they should not reopen.  If you go to rule 50C, that rule - at page 237 - that is identical to rule 36.16 of the Uniform Civil Procedure Rules.  After citing a series of cases, they say at paragraph 28, page 249:

application with an emphasis on correcting obvious mistakes in language used or results that did not reflect the intention of the Court.

So they have read the rule down to virtually a slip rule but if I take your Honours to a passage that we extract from Chief Justice Mason’s judgment in Autodesk - we have extracted it at page 270 it says:

But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. 

But in this case the rule allowed you to do it.

BELL J:   At 248, paragraph 27, the Court of Criminal Appeal in considering this application made reference to the passage in Autodesk.

GAGELER J:   They returned to it at page 250, about line 40.

BELL J:   This was a conclusion about whether, in all the circumstances, it was appropriate to reopen.  It is a very constrained reading of their Honour’s reasons to think that they were confining the circumstances in which one might reopen under the rule to something equivalent to the slip rule.

MR GAME:   But, your Honour, if you pick up - 28 is a reading down and if you go to page 252 a suggestion of fault comes into it but, as I say, we were not aware of the problem at all until the judgment came down and we

became aware of what had been sent to the court by the co‑appellant whilst the judgment was reserved.  Anyway, so, we say that there are two special leave points, one perhaps could be called the wild point and the other is the scope of rule 50C.  If the Court pleases.

BELL J:   Yes, thank you, Ms Abraham.  Ms Abraham, I think, we only need to hear from you on the wild point, if I can put it that way.

MS ABRAHAM:   Certainly.  Your Honours, in my submission, given the way the judgment is structured and the conclusions the court found in terms of what was required in terms of a direction, the court was obviously aware of what they found to be errors.  It was against that background they turned their mind to whether or not they recognised it related to elements of an offence and, in fact, did, to use a shorthand, whether or not that by itself would prevent the application proviso and, of course, the authorities are clear that there is no such category but it would depend on the circumstances of a given case.  When they considered the facts of this case, in my submission, they considered it was an appropriate case to apply the proviso.

Can I just go back a step?  In the written submissions by my friend, the suggestion arises that what one has is a possibility that excessive self‑defence or provocation or unlawful and dangerous act, for two of those there was absolutely no evidence whatsoever.  The accused did not give evidence.  It was not even left in relation to Kevin Gall, the person who committed murder.  They were just not in issue. 

The evidence in relation to self‑defence, the only evidence according to the Court of Criminal Appeal and, quite correctly, was that of Kevin Gall.  But, of course, in concluding that Kevin Gall was convicted of murder, in concluding that, that evidence was rejected and that was also the finding of the sentencing judge at first instance.  So that there was, in effect, no other evidence in relation to this applicant.  In those circumstances, the court obviously considered the evidence, it did not speculate and the like and, in my submission, contrary to what my friend says, they did the conventional task ‑ ‑ ‑

BELL J:   I think the high point of Mr Game’s challenge on this ground is that a consideration viewed from the perspective of the applicant is that he is a man in his 60s, he has been chased by two younger men, was it not a reasonable possibility that he understood his son was firing the gun to protect him?

MS ABRAHAM:   In my submission, that was not open on the facts.  The court rejected that he was being chased by men.  At paragraph 181, page 216 of the application book, the court concluded that the compelling

view that was almost certainly correct was what Mr Fox had to say, that is, that the applicant knew there were no guns.  Fox said there were no guns.  He knew there were no guns.  What had occurred is that the applicant – they were concerned that the applicant was going to get guns and so when the applicant headed off to the premises, Green went after him. 

Your Honour, at that stage Kevin Gall came from behind the fence, armed already, and shot Green - not once but on Kevin Gall’s three times, on Fox’s evidence four to six times in front of him - he was on the ground, he fell after the first shot - and then chased after someone else who was fleeing the premises and was shooting at him even after he was over the fence. 

So, in my submission, the court was in the ideal position to assess the evidence.  They were taken through photographs and plans as to where everybody was and who was standing where and the court concluded that there was no rational basis. 

BELL J:   The court was invited to apply the proviso in the event error was found?

MS ABRAHAM:   Yes, my argument was that, as is obvious from 173, we submitted that the only rational inference open on the evidence – so that very passage indicates and, as I said, I took the court to photographs and maps and the like.  In fact, I think I was accused of – I think, with respect, if I remember correctly, I was accused of giving a jury address to the CCA but yes, the facts were discussed on that basis, in my submission.  If your Honours do not wish to hear from me on the other ‑ ‑ ‑

BELL J:   No, not on the second ground.  Yes, Mr Game.

MR GAME:   There are two things.  One is if you go back to paragraph 172, going straight from the first sentence one has to actually examine the consequence of the error in the context.  The question is not the question posed by the next sentence which is the only question that the court answered.  One sees, shall I say, the very flawed and, as I say, had they done so they would have also been required to direct themselves to the offence as properly framed. 

The speculative nature of this can be seen by what we just had from paragraph 181.  It can be taken that the jury rejected Mr Fox’s evidence - those are the offences on which there was an acquittal - and he gave a very detailed account about my client having a gun and being involved and handing a gun over the fence to his son.  So it is pure speculation to actually engage in that exercise. 

We say that there are two errors here.  One is the failure to consider the significance of the error.  The second is the Weiss exercise has not been done properly and as the lost chance of acquittal actually shows that that approach which is pre‑Weiss is flawed in these circumstances.

BELL J:   Yes.  In our opinion, were special leave to appeal to be granted there are insufficient prospects that the appeal would succeed.  Special leave is refused. 

The Court will now adjourn to reconstitute.

AT 10.42 AM THE MATTER WAS CONCLUDED