Griffiths v The Queen

[1994] HCATrans 401

..

.

• •

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl0 of 1994

B e t w e e n -

SHANE PAUL GRIFFITHS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J McHUGH J

Griffiths 1 30/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 10.21 AM

Copyright in the High Court of Australia

MR S.E. HERBERT, QC:  May it please Your Honours, I appear

with my learned friend, MR A J. GLYNN, for the

applicant.	(instructed by the Legal Aid Office
(Queensland))

MR M.J. BYRNE, OC:  I appear with my learned friend,

MR M.C. CHOWDHURY, for the respondent. (instructed

by D. Field, Solicitor to the Director of

Prosecutions (Queensland))

BRENNAN J:  Mr Byrne, we thought we might be advantaged if

you were to take the floor first.

MR BYRNE:  Thank you, Your Honour. The proposition which is

advanced for the respondent can be best taken from

the summary of the applicant, the summary in reply,

which was filed on behalf of the applicant.	If I
may take Your Honours to paragraph 3 of that
supplemental summary.	The proposition advanced in

that paragraph seems to be that "accident", as

distinct from other defences such as provocation, self defence, is really a single layer defence so that it differs from the other defences in that the

mere statement of the word "accident" would be

sufficient to give rise to, or to satisfy the

evidential burden.

The submission on behalf of the respondent

is that is not the correct proposition and that,

indeed, a credible narrative, as is used in a

number of the authorities, is required to raise

accident as a defence.

DAWSON J:  Why did it have to be a narrative?

MR BYRNE: Narrative is a word used; it could be

explanation, it could be details fleshing out, so

that a reasonable jury could comprehend and could

act on what was said to be an accident, rather than

speculate.

DAWSON J: What if the Crown evidence itself suggests

accident?

MR BYRNE:  The only Crown evidence which could suggest it

was a statement by the applicant in this case that,

"I killed him.	It was an accident.	I didn't mean
to do it."

DAWSON J:  I cannot think of anything that suggests it is

more than that, and that was led by the Crown.

McHUGH J: That is evidence for and against the accused.

Maybe what is for him is not as strong as what is

against him, but nevertheless, it is evidence in

the case.

Griffiths 30/6/94

MR BYRNE: That is accepted, Your Honour.

DAWSON J:  Anyway, why does not the evidence suggest it,

apart from the statement? Here is a motiveless

shooting, one shot, by what would appear to be one

friend against another.	Does that not suggest
accident?

MR BYRNE:  Not necessarily.

DAWSON J: Perhaps not necessarily, but does it not suggest

it on one view of the facts?

MR BYRNE:  The learned trial judge in the case, in fact,

told the jury that that was possibly the more

likely scenario in the case - - -

DAWSON J:  But he told them that the only way in which they

could, in effect, acquit was if they found some

lawful justification and excuse, and he told them

there was none in this case.

MR BYRNE:  He did say that.

DAWSON J: The jury might well have thought there was an

accident and yet felt bound to convict.

MR BYRNE:  The trouble with an accident is the technical

meaning given to it in the law.

BRENNAN J: That is the very problem, is it not? Here the

evidence on which the Crown relied to implicate the

accused was statements that he made to the girls.

MR BYRNE: Yes, Your Honour.

BRENNAN J:	Now, one statement says, "I shot or I killed him and it was an accident."
McHUGH J:	"I didn't mean to do it."
MR BYRNE:	That is so.
McHUGH J:	Why does that not raise

BRENNAN J: What does a jury do on that - say that evidence

stood alone, as the jury may have thought, what

verdict does a jury bring in on that? Guilty of

murder?

MR BYRNE:  Murder was not charged.

BRENNAN J: Guilty of manslaughter?

MR BYRNE:  That is in fact the verdict they brought back,

Your Honour.

Griffiths 3 30/6/94

BRENNAN J:  Why? Why not murder? Why manslaughter? Why

not acquittal, on that evidence?

DAWSON J:	He was only charged with manslaughter.
MR BYRNE:	He was charged with manslaughter - - -
BRENNAN J:	I appreciate that.

McHUGH J: There was no reason why he could not have been

charged with murder.

MR BYRNE:	The explanation is this: there is an explanation, but perhaps an explanation which may be given to
this Court is that if he was charged with murder, manslaughter would have been open. It would have
been difficult, if not impossible, for the Crown to
exclude the hypothesis of manslaughter in the
circumstances, rather than murder.

McHUGH J: But on that statement, "I killed John. It was an

accident. I didn't mean to do it", you could have

tried him for murder. And if the jury rejected
that part of the statement that "It was an

accident. I didn't mean to do it", then they could

have convicted him of murder. But the whole
material being before the jury, they were entitled

to evaluate it. Now, they may have just rejected that latter part out of hand and still brought in the same verdict, but the trouble seems to me to be

that the trial judge took accident away. And what

is more, the Crown had the onus of negativing it.

DAWSON J: It seems, when one reads the judgments, or some

of them, in the Court of Appeal, it seems one of the reasons was because the Crown could not have discharged the onus of disproving accident.

MR BYRNE: That is somewhat overstating the case, with

respect to the Court of Appeal.

DAWSON J:	I am overstating it, am I?
MR BYRNE:	No, the Court of Appeal may have been overstating

it. The difficulty really, in our submission at

least, is that accident entails a lack of

foreseeability. Accident, as is used in the common

sense or in the normal linguistic sense of the word

connotes a number of things which would include

criminal negligence, it would include things which are foreseeable, so the mere statement that it was an accident - and this is also apparent from the

judgment of the Court of Appeal - for those reasons

would not be sufficient to satisfy the evidentiary

burden. So that for a reasonable jury to find that

this was not reasonably foreseeable, simply on a

Griffiths 4 30/6/94

statement that "It was an accident. I didn't mean

to do it", would be to go into speculation.

McHUGH J: That is the problem, is it not? He has not got

an onus of proving accident, has it, under the

Code?

MR BYRNE:  He has an onus of raising it - - -

McHUGH J: That is all, an evidentiary burden. But he

discharges the evidentiary burden when you tendered

his statement in which he said it was an accident.

Now, if the jury accepted that, then they might

fail to be satisfied beyond reasonable doubt that

you had discharged the onus of proof.

MR BYRNE:  The submission in response to that, Your Honour,

is simply this: the words used were, "I shot or

killed John. It was an accident. I didn't mean to do it." Now, that is entirely consistent with, for

example, this formulation: "I pointed the gun and

pulled the trigger. I didn't know it was loaded.",

followed by, "I killed John. It was an accident.

I didn't mean to do it." That is consistent with

an act which would fall within criminal negligence

under the Code and it is really speculation for the

jury to give a meaning to those words in isolation,

that is "It was an accident."

McHUGH J:	But you seem to me to be transferring the:onus of proof. As long as there is some sort of an
argument that there was an accident, then it is up
to you, on behalf of the Crown, to negative it. He
only has to raise the issue.

BRENNAN J: Perhaps another way of putting it is that you

bore the onus of proving that the deceased met his

death as the result of a voluntary act on the part

of the applicant.

MR BYRNE: That is so.
BRENNAN J:	It is customary to speak of raising an

evidentiary - or having an onus of raising the

question on the accused by way of evidence. But

that really only arises when the bare facts of the
case are such, taken in isolation, to warrant the
drawing of an inference of a voluntary act causing
death. Here, the evidence both raises the prospect

of a voluntary act and, at the same time, destroys

that prospect.

MR BYRNE:  I would accept all of that, except Your Honour's

last proposition, with respect.

BRENNAN J: Of course. But what is wrong with it?

Griffiths 5 30/6/94

MR BYRNE:  It does not destroy it necessarily.

BRENNAN J: Not necessarily, but is that not the point? If

the question is, "Have you, by your evidence,

proved that the act was voluntarily done?", and

that is the evidence that you rely on, does it

discharge that onus, necessarily?

MR BYRNE:  The onus on the Crown to prove voluntary - - -

BRENNAN J: Yes, to prove the voluntary act.

MR BYRNE:  Prima facie it does, Your Honour, yes.

BRENNAN J: Then it is a matter for the jury.

MR BYRNE:	The difficulty of course, as Your Honours would have realized, is the jury would have to speculate
if that is the state of the evidence.
McHUGH J:	The jury might take the view that they would not accept his explanation it was an accident, having
regard to lies he told, having regard to his
statement to Jodie Parker which might have been
thought to be a more damaging admission.
DAWSON J:	On the other hand, they may have been left with a

doubt about it.

MR BYRNE:  Of course I must accept those propositions.

BRENNAN J: Does that not make this case, at all events, a

very useful vehicle to consider the operation of

section 23 and the question of the onus of proof,

either of the ultimate issue or of the evidential

burden?

MR BYRNE:  It must be said, Your Honour, with respect, that

I do not believe either my learned friends or ourselves have been able to find a case directly on

point in relation to section 23. A number of

formulations of a test, if I may use that term,

have been extracted in both our outlines but they

are not directly on the issue here. So for that

reason it may well be a suitable vehicle. I do not

believe I can advance the proposition further,

Your Honours.

BRENNAN J:  We need not trouble you, Mr Herbert.

Special leave will be granted in this case.

AT 10.31 AM THE MATTER WAS ADJOURNED SINE DIE

Griffiths 6 30/6/94