Hawkins v The Queen

[1993] HCATrans 375

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H4 of 1993

B e t w e e n -

ANDREW JOHN HAWKINS

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

DAWSON J TOOHEY J GAUDRON J

Hawkins 1 9/12/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 9.32 AM

Copyright in the High Court of Australia

MR A.G. MELICKt:.1 If it please the Court, I appear with my

learned friend, MR R.A. BROWN, for the applicant.

(instructed by C.K. Brown, Director, Legal Aid

Commission, (Tasmania))

MR D.J. BUGG:  May it please the Court, I appear with my

learned friend, MR J.N. PERKS, for the respondent.

(instructed by Director of Public Prosecutions

(Tasmania))

DAWSON J:  Mr Melick.

MR MELICK:  Thank you, Your Honour. There are some

submissions which I understand have -

DAWSON J:  Mr Bugg, this application is not opposed, is that

right?

MR BUGG: That is correct, Your Honour. The respondent, in

fact, communicated with your Registry in Canberra

on - I have lost track of the days - I think it was

Wednesday of this week and indicated its position

in relation to this matter and also suggested that

should the Court be mindful of granting special

leave, that perhaps the application should be amended to include an additional ground to be considered by the Court.

TOOHEY J:  How can we do that unless the applicant himself

amends the application?

MR BUGG:  I am relying upon my learned friend in relation to

that. He has a copy of the letter and if the

applicant makes that application, of course, the

lateness of it would not be a matter of contention

from the respondent's point of view.

DAWSON J: Thank you. Yes, Mr Melick.

MR MELICK:  Thank you, Your Honour. 1ave Q instructions

to make the application refe.c.;;.ed t JY my learned

friend although the applicant does abandon his

position in relation to the special leave point

enumerated at paragraph 15(e) of my affidavit, and

that relates to the application of the proviso.

TOOHEY J:	What page is that, Mr Melick?
MR MELICK:	Page 170 of the application book, Your Honour.

DAWSON J: Well now, is there a draft no :::e of appeal

somewhere?

TOOHEY J: Yes, there is, 1~

Hawkins 9/12/93

MR MELICK: There is, Your Honour. That follows at

pages 171 and 172. Ground 3 of the draft notice of

appeal refers to paragraph lS(e) but is also - - -

DAWSON J: So, it is ground 3 you are not pressing?

MR MELICK:  Your Honour, I will still leave ground 3 there

because if we succeed on paragraphs (a) to (d),

ground 3 still becomes relevant.

DAWSON J:  I see. Now, what about the paragraph of the

letter to which Mr Bugg referred?

MR MELICK:  I would have to concede the matters raised

therein could -

GAUDRON J: It seems almost to be tied up in your first

ground, does it not?

MR MELICK:	Your Honour, it does.
GAUDRON J:	It would be very difficult to concede that you

could put your first ground without coming to that

point.

MR MELICK:  I would have to concede that, Your Honour. I

would submit that if special leave is granted, it

would have to, of necessity, be dealt with by this

Court when considering my first ground.

DAWSON J:  It is pointed out to me that there is no reason

why you should be tied to this. Before the

hearing, you can put in a notice of appeal raising

what you wish, if we give you leave.

MR MELICK:	I am sorry, Your Honour, I did not
DAWSON J:	You are not tied to this particular draft if we

give you leave in any event.

MR MELICK:  No, I am not, Your Honour.

DAWSON J: Well, perhaps you would proceed now and tell us

the basis of your application.

MR MELICK:  Thank you, Your Honour. Do Your Honours have

the outline of submissions?

DAWSON J: Yes.

MR MELICK:  The starting point is that we say the matters to

be raised in the proposed appeal raise significant

questions of law, not only in relation to Code

States but in relation to the administration of

justice throughout Australia.

Hawkins 3 9/12/93

There has been a long history of problems with

the law of insanity a~. 1 in 1957 Sir Owen Dixon

noted some of those in the Legacy of Hadfield,

McNaughten and McLean. We submit that Falconer has

addressed one-half of the problem, that is the
question relating to whether non-insane automatism

can be used or evidence which may be relevant to both mental disease and non-insane automatism be

used but it does not resolve the issues relating to

what use could be made of a mental disease which does not satisfy section 16 in a situation where

there is no dispute as to the voluntary intentional
nature of an accused's act.

Many of the problems arise because, in cases such as Bratty and Wright's case in Canada, there

is very little distinction to be drawn between the

act and the consequence. They were both

strangulation cases. We say that cases which rely

upon those cases to distinguish the other Canadian

cases relied upon and referred to in the

application book are flawed because they fail to

appreciate the proper distinction between act and

consequence.

TOOHEY J:	I thought your proposition was a fairly simple one, be it right or wrong, namely, that evidence of
mental disease falling short of establishing insanity was nevertheless relevant to an offence
where specific intent was an element of that
offence. It that your proposition?
MR MELICK:	Yes, it is, Your Honour. We say the present law

is unsatisfactory because when you look at cases

such as Fruet and Schultz you have the situation in

Australia where you could have evidence from two

psychiatrists, one who says, "The accused suffered

from conditions X and Y which do not amount to a

mental disease"; another psychiatrist says, "I

agree it was X and Y but they do amount to a mental
disease".	The issues would have to be left to the

jury and said, "As a matter of fact, it is a matter

for you whether these constitute a mental disease.

If you are so satisfied it is a mental disease, you

cannot take into account in relation to the

question of specific intent. If you are not

satisfied it is a mental disease, you can take into

account in relation to specific intent.", and that

becomes a nonsense.

DAWSON J:  Where is the conflict between Falconer and the

judgments in the Full Court here?

MR MELICK:  The only conflict in Falconer, Your Honour,

which I can discern is at page 61 in the joint

judgment of Justice Deane and Your Honour.

Hawkins 4 9/12/93

DAWSON J: Yes.

MR MELICK:  And that relates to the presumption of sanity.

We say the presumption of sanity means a presumption or absence of mental disease giving

rise to the conditions within section 16.	I may be
wrong, Your Honour, but I considered - - -

DAWSON J:	What do we say?
MR MELICK:	I interpret what you say at the second complete paragraph on page 61 that the presumption of sanity
relates to an absence of mental disease simpliciter rather than an absence of mental disease giving
rise - in other words, section 16 involves a
two-stage test and we say the presumption relates to both aspects of the two-stage test whereas
Your Honours seem to be suggesting there that it
relates only to the first stage of the two-stage
test, and that is the only place in the entirety of
the law which we submit is correct - the matters we
submit are correct where I can find a conflict in the judgment of Falconer.

TOOHEY J: But do you accept the presumption of sanity for

the purposes of your argument?

MR MELICK:  We submit the presumption of sanity means that a

person is presumed to be free of mental disease,

firstly, and secondly, of a mental disease of such

a nature as to give rise to one of the conditions

mentioned in section 16.

TOOHEY J:  Why do you take the first step? Why do you not

go immediately to the second?

MR MELICK: Well, it is combined, I suppose, Your Honour.

TOOHEY J: It may not be. It might have quite an important

implication for the argument, might it not? If you

say there is a presumption of sanity, that may not

have anything much to say about your argument.

Maybe I have misunderstood your argument but I

thought it was that - put to one side mental

disease of such a nature that it amounts to

insanity in terms of the Code. You have a case of

murder involving a specific intent. It is open to

an accused person to lead evidence, any evidence

that bears on the presence or absence of that

intent, including factors bearing upon the person's

mental condition.

MR MELICK:  Yes, Your Honour, that is our submission and we

say the presumption of sanity does not affect our

position.

Hawkins 9/12/93

TOOHEY J:  I understand that. I thought you were putting it

in a somewhat different way.

DAWSON J:  The only type of insanity which the Code knows is

that which satisfies the conditions which are set

out, is it not?

MR MELICK: In section 16, yes, Your Honour.

DAWSON J:  I should not have thought we meant anything

different.

MR MELICK:  In that case, Your Honour, I apologize. I have

misunderstood the meaning of that paragraph. If

that is the case, there is then no dispute between

any of the matters we wish to put and any of the

decisions in Falconer's case.

DAWSON J:  Thank you, Mr Melick. You do not want to add

anything, do you, Mr Bugg?

MR BUGG:	No, I do not, Your Honour.
DAWSON J:	Mr Melick, there will be a grant of special

leave. In saying that you are not tied to the

grounds of your draft notice of appeal, we are not

inviting you to add a whole flock of other grounds

but merely to take into account the matter that

Mr Bugg has raised.

MR MELICK:  Thank you, Your Honour.

AT 9.43 AM THE MATTER WAS ADJOURNED SINE DIE

Hawkins 6 9/12/93