Galli v The Queen

[1998] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M82 of 1996

B e t w e e n -

ALFRED ALDO GALLI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 3.24 PM

Copyright in the High Court of Australia

MR J.D. McARDLE:   May it please the Court, I appear with my learned friend, MR T.P. BURKE, for the respondent in this application.  (instructed by the Office of Public Prosecutions (Victoria))

KIRBY J:   I think there is no appearance for the applicant.

MR McARDLE:   Yes, that is the situation, according to my understanding.  Your Honours, we filed a response in writing to the applicant’s response some time ago.

KIRBY J:   Yes, the Court has both the applicant’s summary of argument and your response.  Would you just help me on one matter where the law may be a little different in this State than it is in New South Wales, or it may be the same.  This relates to the complaint that the learned trial judge did not leave to the jury the possibility of returning a verdict of manslaughter.  Now, given that, on the assumption that the jury were satisfied beyond reasonable doubt of all the elements and that there was nothing sufficient in all of the points of law that are raised, why would the judge in this case not, having regard especially to the age of the present applicant, have left the issue of manslaughter to the jury?

MR McARDLE:   The Court of Appeal, I think, looked at this and they took the view that there was really no version of what occurred that was consistent with any form of manslaughter; that it was an intentional killing; a ‑ ‑ ‑

KIRBY J:   The Crown’s case was that it was an intentional killing.  The accused’s case was that he was not involved.  All he had had was the argument with his father and the father had departed.  Therefore, I take it that the suggestion is that there really was not any room between hand of murder or acquittal.

MR McARDLE:   Yes.

KIRBY J:   What is the impediment to explaining that it is always open to a jury to return a verdict of manslaughter in a murder count?

MR McARDLE:   There would have to be some factual basis available for that, otherwise one runs the risk of a perverse verdict.  In this case it was clear that it was an intentional killing.  Most of the versions of it was that the cross-bow was fired directly at his father causing a fatal wound.

KIRBY J:   That was based on confessions of the applicant?

MR McARDLE:   Yes; a little bit of support from an arrow head that apparently had been subjected to intense heat which would be consistent with the father’s remains being incinerated in the backyard some time after the event.

KIRBY J:   Yes.  Very well, is there anything else you wish to say to the Court?

MR McARDLE:   No, there is nothing further I desire to say.  If the Court pleases.

KIRBY J:   Yes, thank you very much.

The applicant was convicted of the murder of his father.  His application for leave to appeal against his conviction and sentence was refused by the Court of Appeal of Victoria.  He has applied for special leave to appeal to this Court against his conviction.  Although he has not appeared to argue the application and was not legally represented before the Court, detailed written submissions were received, both to support and to oppose his application.  The Court has considered these and the reasons for judgment of the Court of Appeal. 

There is no reason to doubt the correctness of the opinion of the Court of Appeal.  This was a strong Crown case and although some aspects of the charge to the jury of the trial judge were open to criticism, as noted in the Court of Appeal, we are not convinced that a miscarriage of justice has occurred calling for the intervention of this Court.  Nor do any of the points of law raised in the applicant’s written submissions attract special leave in the circumstances of this case.

Special leave is therefore refused.

AT 3.28 PM THE MATTER WAS CONCLUDED