Gilbert v The Queen

[1999] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 1998

B e t w e e n -

WILLIAM LAWRENCE GILBERT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 12.02 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the applicant.  (instructed by Legal Aid Office (Queensland))

MR M.J. BYRNE, QC:   If the Court please, I appear with my learned colleague, MR C.W. HEATON, for the respondent,  (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Glynn.

MR GLYNN:   Thank you, your Honours.  Your Honours, this is an application based, essentially, on the proposition that the interests of justice in this particular case require the Court to review the decision of the Court of Appeal.  The appellant was convicted of murder.  The killing was said to have been committed by one or both of two co-accused, a man called Harding and another man called Gilbert, his brother.

GLEESON CJ:   Did the jury ask whether or not it was available to them to convicted of manslaughter?

MR GLYNN:   The jury were told that they could not convict him of manslaughter and, in fact, the jury came back and specifically asked was manslaughter excluded as a possible verdict in respect of the applicant.

GLEESON CJ:   Then the other question that was addressed by the appellate court was, whether or not, having regard to the admissions that he had made, it could, on any basis, have been open to the jury to bring in a verdict of guilty of manslaughter.

MR GLYNN:   That is correct, your Honour, yes, and the Court of Appeal, by a majority, concluded that the decision could only go one way.

GLEESON CJ:   Well, let us face that.  Having regard to those admissions, on what process of reasoning could the jury have brought in a verdict of guilty of manslaughter?

MR GLYNN:   Your Honour, if one looks at the worst passages for the applicant, it is my submission that the worst that could have been said is that he recognised the possibility that the deceased might suffer some serious injury in the course of an event which, in his mind, seemed to be unpredictable or in respect of which the outcome seemed to be unpredictable.  At no stage, in my submission, in the admissions which are referred to in the judgment of Justice Davies, is there ever a point at which he said, or could be inferred to have said, that he believed that his brother would cause an injury amounting to grievous bodily harm.

CALLINAN J:   Mr Glynn, was he not aware though that the victim had a particular susceptibility; was particularly vulnerable?  He was aware of that and admitted it, I thought.

MR GLYNN:   He admitted that the victim, to his belief, had suffered from what he described as chalky bones but that does not seem to have, in itself, amounted to an admission that his brother intended to do grievous bodily harm.

CALLINAN J:   Perhaps, a relatively insignificant blow might produce that effect, is within his knowledge.  I do not know whether there was any evidence whether that was within his brother’s knowledge.

MR GLYNN:   No.  Well, there is nothing that I can find in the material that forms part of the record that says that was within his brother’s knowledge.  The court, in my submission, correctly identifies that what must be shown is that he had knowledge that his brother intended to at least do grievous bodily harm, if not to kill.  Now, taken at its highest for the Crown, my submission is that, particularly when you read his statements to the police as a whole, you cannot identify a statement, or a group of statements, which means that he knew that his brother intended to do that.

GLEESON CJ:   Mr Glynn, giving the admissions that he made the more benign interpretation that you would give them, does that mean that he is guilty of manslaughter or that he is not guilty of any form of unlawful homicide?

MR GLYNN:   It would mean that, on section 7, that he would not be guilty of homicide, but that on section 8, he might be guilty of manslaughter if the jury were correctly directed.  So that, had it been properly or correctly put to the jury, they could well have convicted him of manslaughter on the basis of section 8.

GLEESON CJ:   We might be assisted if we hear from Mr Byrne at this stage.  Yes, Mr Byrne.

MR BYRNE:   If the Court pleases.  The question asked by the jury, which your Honour the Chief Justice has identified, appears between pages 83 and 84 of the record.  The timing of that question is of some assistance, we submit.  Your Honours will see that the jury retired after the summing up and after a lengthy trial at 12.31 pm.  At 12.35 pm, that is four minutes later, a question had been formulated and that is the question:

If either Jason or Don is convicted of murder…..is the other available for the charge of manslaughter?

The context and the timing of that question must be not that the jury were actively considering manslaughter as an option, simply, that they were seeking to clarify the directions given by the trial judge on that aspect and his Honour ‑ ‑ ‑

CALLINAN J:   We could not possibly speculate about that, Mr Byrne.

GLEESON CJ:   They may have been discussing the views as the case went along.

MR BYRNE:   That is possible, but four minutes, they must have formulated that question virtually before they retired.

CALLINAN J:   How long had the trial lasted by that stage?

MR BYRNE:   I think it was something like 14 days, or something along those lines.

CALLINAN J:   And the summing up took some time, Justice Mackenzie’s summing up?

MR BYRNE:   Yes, it was a lengthy summing up, your Honour.

CALLINAN J:   With adjournments.

MR BYRNE:   Yes.  The difference in the judgments in the Court of Appeal, we submit, is simply one of fact.  The majority taking the view that it was inevitable that a jury must have been satisfied in accordance with section 7 on the admissions made that he was guilty of murder.  The dissenting, or minority judgment, of that of Justice Pincus, was of the view that he was not so satisfied on the facts, that is, the admissions in the statements made.  In those circumstances, we say this is a factual issue.  All members of the Court of Appeal have correctly apprehended the test to be applied for the application of the proviso.  The relevant cases are set out and the test formulated.  The question is one of fact and is not a question which would give rise to any question of principle.

We say, secondly, that it does not give rise to any particular matter in the interests of personal justice to the applicant because of the conclusion reached by the majority, that is, as stated by Mr Justice McPherson, that for a jury to find other than they did would have been perverse.

GLEESON CJ:   That is the critical question, is it not, and that is the point of departure between the majority and the minority in the Court of Appeal?

MR BYRNE:   And that is a question, we say, of fact.  The Court of Appeal assessed the material and the majority found, as a question of fact, that the jury must have been satisfied and, hence, a verdict of murder inevitable, on the relevant test.  In those circumstances, we say, this is not a question which should give rise to special leave.  Those are our submissions.

GLEESON CJ:   Thank you.  Yes, Mr Glynn.

MR GLYNN:   Your Honours, this goes beyond a mere question of fact because it goes to whether or not it was open to the jury to even consider manslaughter in the light of the statements to which Justice Davies refers.  Now, in our submission, it cannot simply be dismissed, as such, because the error in the direction really went to a fundamental issue in the trial which was, what verdicts were open and on what basis?

GLEESON CJ:   The reasoning of the majority in the Court of Appeal was, was it not, that although the jury were not properly directed on the issue of manslaughter, if they had been directed on the issue of manslaughter, it would, nevertheless, have been perverse not to find him guilty of murder?

MR GLYNN:   Yes.  Our submission, your Honour, is that that is in error because when one considers the statement – their Honours correctly identified the need to establish that he intended, or that he knew that his brother intended to cause grievous bodily harm.  The most that it can be said is that he knew that his brother was likely to assault with an unidentified range of possibilities and injury.  But there is never, at any stage, anything that could possibly be said to amount to a concession or an admission that he knew that his brother had such an intent.

GLEESON CJ:   Can you just remind us, what was the factual basis on which the jury might have properly found him guilty of manslaughter?

MR GLYNN:   On the basis that he was a party to a plan to assault but that ‑ ‑ ‑

CALLINAN J:   Not to cause grievous bodily harm.

MR GLYNN:   But not to cause grievous bodily harm, your Honour.  But that, of course, death, the jury might find was a foreseeable consequence of that plan to assault.

GLEESON CJ:   The majority said, as I understand, that having regard to his knowledge of the propensities of the person who was going to do the assaulting and the susceptibilities of the likely victim, it was just not a

realistic possibility that he would not have contemplated grievous bodily harm.

MR GLYNN:   That seems to be the effect of the majority view but, with respect, your Honour, that is something, when one looks at the statements - and it turns entirely on his statements to the police - it was clearly open to a jury to take a different view from that which the Court of Appeal said they could not.  That it would have been perfectly reasonable for a jury, in the circumstances, to have concluded that although he knew that his brother intended to assault him, he did not know that his brother intended to cause him grievous bodily harm, although he had some concerns about how far it may go.

CALLINAN J:   His brother sounded like a very dangerous man to cross, did he not?

MR GLYNN:   Well, he certainly, and I have to concede, that he expressed, to a degree, that he would not cross his brother.  But that does not mean that he knew that his brother intended to cause grievous bodily harm to this particular man.  That, really, was a classic question for the jury which the jury were conscious of and which was taken away from them in very clear terms in the summing up and then, again, on their request for a redirection.

CALLINAN J:   Yes, it is a large proposition, is it not, to say that even though the jury may have been misdirected, murder, rather than manslaughter, was inevitable?

MR GLYNN:   That is correct, your Honour, and it is obvious that the jury were, at least, conscious of the difference of the need to differentiate and, particularly, as this was a man who was not actually present at the assault that resulted in the death of the deceased.  Those are our submissions, thank you.

GLEESON CJ:   In this matter there will be grant of special leave to appeal.

AT 12.14 PM THE MATTER WAS CONCLUDED