Gardiner v The Queen

[2019] HCATrans 164

[2019] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A4 of 2019

B e t w e e n -

JASON LEE GARDINER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 AUGUST 2019, AT 2.46 PM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR E.G. BELPERIO, for the applicant.  (instructed by Shaw and Henderson)

MR I.D. PRESS, SC:   May it please the Court, I appear with MR P.A. LONGSON for the respondent.  (instructed by Director of Public Prosecutions (SA))

GAGELER J:   Thank you, Ms Shaw.

MS SHAW:   If the Court pleases, we seek an extension of time in relation to the filing of the application and dispensation of the Rules.  We rely on the affidavit of the applicant’s solicitor, Rachael Ebony Shaw, at application book 102 to 103 and we seek permission to rely on the affidavit of Stephen Ey, the applicant’s solicitor below, affirmed on 8 August 2019, and filed on 12 August 2019.

GAGELER J:   Ms Shaw, I think your application for an extension of time is inevitably bound up with the merits of your application.  You should proceed on that basis.

MS SHAW:   Thank you, your Honour.  Your Honours, this application for special leave concerns the obligations of a Court of Criminal Appeal in considering grounds of appeal under the first and third limbs of section 353(1) of the Criminal Law Consolidation Act 1953 (SA), which is reproduced at application book 101 where, under our section 7(4) of the Juries Act (SA), the decision of the trial judge is to be treated as a jury verdict for all purposes and therefore is not materially different to section 133 of the Criminal Procedure Act (NSW), considered by this Court in Filippou’s Case.

The applicant contends that the Court of Criminal Appeal failed to discharge its obligations under the first limb of section 353(1) in its consideration of whether the verdict was unreasonable and could not be supported by the evidence in two important respects.  Those grounds are at application book 88.

Firstly, in relation to the applicant’s grounds of appeal to the Court of Criminal Appeal, which are in the application book at page 61, our first submission is that the Court of Criminal Appeal failed to consider and determine particular 1.2 of the amended grounds of appeal, that is, in relation to the evidence of the applicant’s intoxication, and, indeed failed to have regard to the trial judge’s findings in relation to his intoxication.

GAGELER J:   Ms Shaw, the point put against you is that the level of intoxication was not the basis upon which that argument was put to the Court of Criminal Appeal.  How do you deal with that?

MS SHAW:   Your Honours, we seek leave to refer to the outline that was filed at the Court of Criminal Appeal, which hopefully your Honours have received.

GAGELER J:   Is this a document called, “Summary of argument for the applicant?”

MS SHAW:   Yes, it is.

GAGELER J:   Yes.

MS SHAW:   Your Honours will see that in that document at paragraph 14 the applicant sets out the trial judge’s principal findings of fact and that, in particular, the applicant was “alcohol dependent” and “drank to excess” and:

The Applicant was likely to have been intoxicated at the time he inflicted the injuries –

Then, under ground 2, if I can move forward in that outline, the argument was, in particular, the liver injury had been misdescribed by the trial judge.  At paragraph 40, if I can move forward to that quickly, the significance of that was:

that it was not open . . . to exclude as a reasonable possibility that the fatal injury to the liver had been caused by the application of only moderate force.  This reasonable possibility was important when considering what intention the Applicant must have had when he inflicted the fatal injury ‑ ‑ ‑

EDELMAN J:   Is there something in paragraph 40 from which one draws an inference that the submission is being made that the intoxication is a factor which prevents the intention being formed?

MS SHAW:   No, your Honours, with respect.  That is the lead‑in to how ground 1 was framed.  So the commencement point for ground 1 was that the issue in relation to the unsafe ground had to focus on the liver injury.  Counsel at 42 essentially identified that as the issue upon which the question of intent had to be framed and, moving forward, as to the statements of principle and the facts relevant to that injury, counsel then concluded under ground 1 for that proposition, at paragraph 49:

Since the liver injury may well have been inflicted in that way, the Applicant submits that the evidence was incapable of excluding the reasonable possibility that the Applicant, who was likely to have been significantly intoxicated at the time, did not intend to cause (or appreciate that he would cause) the deceased grievous bodily harm by his actions.

That was plainly the written outline.  I can take your Honours to the written submissions where, in particular, counsel when dealing with what was indeed a second proposition ‑ ‑ ‑

EDELMAN J:   So your submission then is in the written outline this point of intoxication was squarely raised, even though there is no reference to any of the evidence about intoxication at all.

MS SHAW:   Yes.  In the judgment of the Court of Criminal Appeal, that is right.

EDELMAN J:   Yes, no reference to any of the evidence and the only reference in the submissions, other than the recitation of the trial judge’s finding of facts, is the words “who was likely to have been significantly intoxicated” in paragraph 49.

MS SHAW:   Your Honours, that was the outline and that was the nub of the defence argument, and it was affirmed during oral submissions.  Your Honours have the transcript of oral submissions below and, in particular, for example - and this is when the applicant is - to his final point, which is at paragraph 50 of his outline – it is that final point only that is addressed by the Court of Appeal.  The Court of Appeal does not address his submission, based on the liver injury.  But I seek leave of the Court to refer to the transcript.

GAGELER J:   Yes.  What page?

MS SHAW:   Page 34.  This is, your Honours, counsel having outlined at pages 3 to 4 the evidence as to intoxication on which he relied – I apologise for going back, your Honours.  But if your Honours go back to page 3, counsel outlines the evidence of intoxication and, in particular, places great weight on the fact that the trial judge had found that he was intoxicated at the time the fatal injury was inflicted.

GAGELER J:   Now, Ms Shaw, the trial judge found that the applicant had an ability to function well at those levels of alcohol, as I understand it.

MS SHAW:   Yes.

GAGELER J:   There is no challenge to that - there is no hint of a challenge to that, is there?

MS SHAW:   There is no challenge to the finding that he could have formed a basic intent.  The question was, as framed in the evidence of Professor White, whether or not that ability to act purposefully meant that he in fact not only could, but did form, a specific intent, that is, he adverted to the consequences of his actions and proceeded nevertheless.

EDELMAN J:   That was a ground of appeal, then, was it?

MS SHAW:   It was a part – your Honours, the issue of the finding of intoxication by the trial judge was not challenged but was called in aid because her Honour did not in any way disagree with the evidence before her – which is set out at pages 3 to 4 – as to the extent of the drinking of the applicant - someone who always drank until he passed out; that he was - your Honours will see at page 4, line 12, counsel referred to the fact that at 11.40 he sounded drunk – and that was during the phone call where he had reported, and it was submitted, was soon after the death of the deceased.  Counsel then went on to say that voluntariness was not an issue, but the issue was the question of specific intent.

GAGELER J:   I am sorry, where is that said?

MS SHAW:   At page 5, line 6 to line 9.  He went on to refer to the finding of the learned judge, which went to specific intent, the trial judge.

EDELMAN J:   So the argument is raised on appeal that specific intent could not have been formed because he was too intoxicated?

MS SHAW:   That what was raised was that, under the unsafe ground, it could not be excluded that he did not form the specific intent because of the intoxication.

EDELMAN J:   Yes.  Where do we find that?  It is not in the written submissions.  Where do we find that - the oral submissions?

MS SHAW:   In our respectful submission, it is reflected in paragraph 49 but it is also reinforced at page 34 of the transcript, when what is being put to Mr Henchliffe is, in essence, the additional submission he made at paragraph 51 of his outline, that her Honour had wrongly construed the evidence of Dr Langlois and even if one accepted her Honour’s finding at page 33 ‑ ‑ ‑

GAGELER J:   This is page 34?

MS SHAW:   Page 33, I am sorry.

GAGELER J:   Page 33, line what?

MS SHAW:   Commencing at line 16, and down at line 33:

at its highest, an inference that wasn’t his intent could not be excluded.

GAGELER J:   Where is the reference to the intoxication?

MS SHAW:   That comes, your Honour, if your Honour goes to page 34, continuing into that submission.  Line 13, that is, even accepting the scenario that suggests that he did in fact – was responsible for the injuries:

In my submission, even in that scenario, given one can’t forget that we are dealing with a man who was quite intoxicated at the time, and dealing with someone who, at least when he was sober, had a close relationship, one couldn’t know that was necessarily his intention, even if there had been blows rather than compressive force.

So he is specifically raising the fact that we are dealing with an intoxicated man in relation to the inference of intention.  Then over the page again, and this is in his concluding remarks at page 35, in terms of assuming that it was not compressive, which was obviously the pathologist’s preferred position, because there was no bruising, Mr Henchliffe said:

With an intention to hurt, to cause her harm, without actually contemplating, in his drunken state, that ‘I really want to cause her really serious or even life-threatening injuries.

So counsel specifically not only set out the evidence, but submitted what was, in essence, unchallenged on appeal, that there were findings of her Honour as to intoxication.  In our respectful submission, what his Honour the Chief Justice did in his judgment, with respect – if I can take your Honours to that judgment at page 81 of the application book.  In particular, when dealing with ground 2 as the lead‑in, in the way that counsel had led into ground 1 in his written and oral submissions, his Honour said at paragraph 82:

It was, of course, a necessary finding to support the guilty verdict that the applicant had that state of mind at the time the liver injury was inflicted.

In our submission, that is an implicit acceptance of the first submission of the applicant that one could not exclude that the injury causing death was the liver injury.  So when counsel in his written outline and his oral submissions concentrated on the liver injury and posed the question that had to be determined by the Court of Criminal Appeal at paragraph 49:  can the proof of specific intent be proved if you engage with the evidence of intoxication?  The submission was it could not, having regard to that evidence.

What his Honour the Chief Justice did under ground 1, rather than addressing paragraphs 42 to 49 of the applicant’s outline and the presentation of his argument based on the significance of the liver injury, his Honour commences with what is in fact an additional submission of the applicant. 

If I can take your Honours to paragraph 50 - that is immediately after paragraph 49, dealing with the submission in relation to the liver injury and intoxication, your Honours will see that in the written outline at paragraph 50 counsel is complaining as to paragraphs 190 and 191 of her Honour’s reasons as not being supported by the evidence of Dr Langlois about the injuries and sets out his contention as to what those injuries in fact, what the evidence in fact was.

When one turns to his Honour’s reasons at paragraph 83, your Honours will see that his Honour the Chief Justice frames the applicant’s submission solely by reference to the additional argument that was presented at paragraphs 50 and 51, namely the totality of the blows.  He does not address the submission that was implicitly considered in paragraph 82 as to the significance of the liver injury.

If your Honours go over the page to page 84 of the application book, your Honours will see what is set out there mirrors what is contained in paragraph 51 of the outline, namely, an additional complaint about the inferences that her Honour drew from the injuries.  His Honour therefore does not consider the prime complaint of the applicant, which depended on the inability to exclude the liver injury as the lone cause of death, and goes on to therefore consider the evidence and the findings of the magistrate in relation to the totality of the injuries.

Our submission is that his Honour makes it plain that he is not considering all of the evidence in determining the unsafe ground because he says at paragraph 85, application book 82:

The inference of intent to cause grievous bodily harm which is available on the evidence of the injuries themselves is supported by the relationship evidence.

So his Honour considers the injuries and relationship evidence and then he comes to his conclusions at application book 84 and in particular at the top of the page, having set out the learned judge’s reasons in relation to relationship evidence, his Honour then relies on the relationship evidence and the injuries and finds that the relationship evidence adds to the significance of the circumstances of the case and then concludes that, at paragraph 86, his Honour comes to the right conclusion.

In our respectful submission, this is a matter in the interests of justice that is worthy of leave and also that it raises the relationship between the first limb and the third limb of section 353(1).  If the Court pleases.

GAGELER J:   Thank you, Ms Shaw.  Mr Press, we do not need to hear from you.

Having regard to the way in which the appeal to the Court of Criminal Appeal was conducted we are not persuaded that the proposed appeal to this Court would have any realistic prospect of success. We are also unpersuaded by the affidavit evidence that there is a satisfactory explanation for the delay in making the application for special leave to appeal. The application for a dispensation of the time limit imposed by rule 41.02.1 of the High Court Rules 2004 (Cth) is refused and, as a result, the application for special leave to appeal is dismissed.

AT 3.06 PM THE MATTER WAS CONCLUDED