Heathcote v The Queen; Rogers v The Queen; Heathcote v The Queen

[2011] HCATrans 202

[2011] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 2011

B e t w e e n -

DAVID ROBERT HEATHCOTE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B14 of 2011

B e t w e e n -

COLIN ROBERT ROGERS

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B9 of 2011

B e t w e e n -

YVONNE JEAN HEATHCOTE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 9.48 AM

Copyright in the High Court of Australia

____________________

MR P.J. CALLAGHAN, SC:   If it please the Court, I appear with my learned friend, MR J.M. McINNES, for the applicant David Heathcote.  (instructed by Legal Aid Queensland)

MR M.J. COPLEY, SC:   If it please the Court, I appear with my learned friend, MR G.P. CASH, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Now, Mr Callaghan, I have had called only matter No 2.  Is that, do you say, the appropriate way in which the matter should proceed?

MR CALLAGHAN:   The Court might find it convenient to hear from each of at least the applicants Yvonne Heathcote and Rogers because I understand there to be a significant overlap in the arguments raised by those applicants and the applicant I represent.  The applicant Crothers has a freestanding argument.

HAYNE J:   We will call application Nos 3 and 4.

MR N.V. WESTON:   May it please the Court, I appear for the applicant Rogers.  (instructed by Fisher Dore Lawyers). 

MR J.J. ALLEN:   May it please the Court, I appear with my learned friend, MS K. PRSKALO, for the applicant Yvonne Heathcote.  (instructed by Legal Aid Queensland)

MR M.J. COPLEY, SC:   If it please the Court, I appear with my learned friend, MR G.P. CASH, for the respondents in both matters.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, we require an extension.  I am authorised by Mr Copley to indicate that that is not opposed.

HAYNE J:   Yes.

MR CALLAGHAN:   The applicant’s criminal responsibility for murder depended entirely upon the operation of section 8 of the Criminal Code.  The particulars of the section 8 case against him appear in the application book at page 139, line 30, and I draw that to your attention because those particulars omit any reference to the requirement that the offence of murder be committed in the course of prosecuting an unlawful purpose.  We then look to the directions on that topic which begin at application book 80 and appear in pages subsequent to that.  I could take you through them, but perhaps by way of summary I could say that there are perhaps half a dozen or perhaps even a couple more occasions on which the requirement that the offence committed by the principal be committed in the course of prosecuting an unlawful purpose is repeated by way of general explanation as to the terms of the section or by way of paraphrase of those terms.  It is not in any of those general directions related to the facts of the case against the applicant.

The specific section 8 case against this applicant was then addressed at application book 90 and the relevant directions really begin in earnest at about line 40 and continue over for most of the next page, but again that was it and again we submit there was nothing which related that part of section 8 to the facts of the case.  The jury was clearly troubled by the application of section 8 to this applicant.  Your Honours should have been provided with some missing pages of the transcript which are not contained in the application book.  The passage I am concerned with is at 1531 of those additional pages.

HAYNE J:   I do not think we have received those, Mr Callaghan.

MR CALLAGHAN:   In essence, your Honour, can I put it this way, that the directions given by way of redirection were, in essence, a repetition of that which was said earlier and did not address, we submit, the need for the link between the offence committed and the prosecution of the unlawful purpose.

HAYNE J:   What was the jury question or circumstance that prompted redirection?

MR CALLAGHAN:   They asked specifically about section 8 and then again, at 1544 – I am just trying to turn up the exact question – but at the top of 1547 her Honour repeats the question, which was:

Would you please provide guidance with respect to the term “common” in “common unlawful purpose” in the section 8 indictment with respect to count 1 of murder?  Is there any definition of the word “common” other than in its normal usage; (b) what weight should be attached to this word? Does the section 8 indictment wholly depend upon the finding that there is a common unlawful purpose, ie, is it determinative for section 8 to apply; (c) is there a specific time when there must be a common unlawful purpose?

So that was that part of it.

HAYNE J:   As the evidence turned out at trial, was there any doubt that a group of people had gone to a property with the common purpose of beating a person thought likely to be found at that property?

MR CALLAGHAN:   Your Honour, of course arguments were made that there was a doubt, but I cannot say that the evidence did not afford that conclusion.

HAYNE J:   Was the sequence of events that the father of the intended victim intervened and was shot and that following the shooting, the beating was effected?

MR CALLAGHAN:   No.  There was much discussion about that common intention.  There was much discussion about the nature of a probable consequence, but our point is that the directions did not address the need for the offence committed to have been done actually in the prosecution of that unlawful purpose of beating that person who was, as your Honours observed, the son of the deceased and was someone who was known to the principal offender.  That provides the context for our supplementary written submissions, which I hope your Honours received, even if you did not receive the transcript.  I am told the additional transcript may be with the authorities which were provided to your Honours.

HAYNE J:   We have the supplementary summary of argument.

MR CALLAGHAN:   Well, that was the point which I had reached and which I do not wish to repeat unnecessarily.  Our complaint is not merely one of omission.  We advance the proposition that a simple specific direction would have made this concept meaningful in this case and would do so in most cases of this nature, in particular, cases in which the purpose is rather different in character from the offence actually committed by the principal; the purpose in this case being to beat up one person, the offence being the murder of a different person.  As I say, I do not wish to repeat the propositions which we hope are made in that supplementary submission.

HAYNE J:   But am I right in thinking that the intended victim was beaten after the shooting?

MR CALLAGHAN:   Yes, your Honour.

HAYNE J:   And beaten by your client or another or others?

MR CALLAGHAN:   By my client, yes, and others, but certainly my client.

HAYNE J:   Yes.  So despite the occurrence of the shooting, the plan, if there was a plan, it was carried into execution by beating the intended victim?

MR CALLAGHAN:   That is so.  The plan was carried through to its conclusion.  The issue is whether the murder was something which was done in furtherance of or for the purpose of effecting that plan.  That is what we say was not something which the jury was ever asked to consider, and certainly not asked to consider in the terms which would have made it

meaningful, and that is asked to consider whether Crothers was acting independently of the plan when he shot someone who was known to him and with whom he had apparently quarrelled in the past.  Your Honours, that is our point, or that is the point which we wish to advance in oral argument.  You have the other written submissions which we do not wish to say anything more about but they are before you.

HAYNE J:   Yes.  Thank you.  Perhaps we might next hear from Mr Weston, then Mr Callaghan. 

MR WESTON:   May it please the Court, the submissions on behalf of the applicant, Colin Rogers, will focus on the miscarriage of justice ground.  The Court has the benefit of written submissions from the applicant on the other grounds and I do not intend to pursue them in oral argument.

Your Honour, Mr Rogers’ argument comes down to this. He is a man of low intelligence and little education who, partly through his own choice which he then tried to resile from later in the trial, has not been properly represented on a charge of murder when the case against him was based on either section 8 of the Criminal Code – and in the learned trial judge’s summing‑up to the jury her Honour described the section 8 case against Mr Rogers as being weak – or, alternatively, under section 7(1)(c) of the Criminal Code, that is, he somehow aided Mr Crothers, the shooter, by his presence; again, a ground where the Crown case could not say what Mr Rogers was doing at the time, where the evidence from the two relevant witnesses, the two sons of the deceased, was vague as to where he was and what he was doing.

It is our submission that the Court of Appeal erred.  That error is found at pages 163 to 165 of the application book.  The Court of Appeal there reviews a number of matters which are raised in oral argument before it as to whether or not Mr Rogers had a fair trial according to law, in particular, whether the learned trial judge should have intervened when Mr Rogers raised the matter discussed in paragraph [355] of the judgment on day 18 of the trial, about six days after he dismissed his legal representatives.  It is our submission that the Court of Appeal erred there in finding that Mr Rogers did not press the matter in seeking legal representation.  We also submit that the Court of Appeal erred in holding that there was no error because even if the application for an adjournment had been made and granted, it would not be the case that Mr Rogers would necessarily have received fresh legal representation. 

As the Court of Appeal recognised in paragraph [356], it is unquestionably desirable that persons charged with most serious crimes – and the crime here, of course, is murder – should be afforded legal representation.  On the material before the Court of Appeal, Mr Rogers decided to dispense with his legal representatives on day 12.  He was given a chance to reconsider the matter and decided to go ahead with the trial, defending himself, but by day 18, when the Crown case was still on foot, it is clear, when he started speaking about wanting to contact the Legal Aid Office about getting a grant of representation, the only construction that can be placed upon that is that Mr Rogers has realised that he is out of his depth and that he requires proper legal representation to effectively make his defence.  Not being allowed to obtain legal representation from there on, it is clear that Mr Rogers was unable to properly defend this case. 

Now, it is true that much of the Crown case had already elapsed by then, but we had reached the critical period whereby the Crown was about to close its case.  Mr Rogers would have to make the decision whether or not he was to give or call evidence, and also there is the issue about his final address to the jury.  It is our submission that Mr Rogers was grossly disadvantaged by not having legal representation and make a proper informed decision about what he was to do.  That is evident from the form of his address where he effectively tried to give evidence from the Bar table.  Counsel for the co‑applicant, Yvonne Heathcote, successfully objected to that.  The address that Mr Rogers finally gave to the jury, after that objection in front of the jury, is recorded at paragraph [361] on page 165 of the application book. 

Now, the Court of Appeal says the address was brief but not necessarily ineffective. We submit that that is plainly wrong. This is a charge of murder. Mr Rogers’ liability is either under section 8 or section 7(1)(c). His address to the jury is recorded there; it is four lines long. There is no attempt by him to really meet those issues about section 7(1)(c), to explain his presence and to make any meaningful response to the jury about those matters.

His discussion of what might be called the section 8 question is brief in the extreme.  He does not address the jury about the issue of Crothers acting in self‑defence.  He does not address the jury about the issue of the apparent lies that he told in the out of court statement which was said to go to his credibility.  He does not address the jury about the presumption of guilt, nor does he address the jury about the possibility of an alternate verdict of manslaughter.  It is our submission that it is not sufficient, as the Court of Appeal said in paragraph [363], the learned trial judge carefully set out those matters.  They are matters which Mr Crothers should have had the benefit of appropriate representation and counsel making those submissions forcefully on his behalf. 

It is said by the Crown that Rogers has brought this decision upon himself, effectively, that he made the choice to be unrepresented.  That is so, but it must be kept in mind that Rogers was a man of very low

intelligence and notwithstanding that initial election, it is clear that as the trial progressed he wished to change matters and be legally represented again.  We say the failure to ensure that he was legally represented for the balance of the trial has caused a miscarriage of justice.  May it please the Court, those are the submissions on behalf of the Colin Rogers.

HAYNE J:   That you, Mr Weston.  We should perhaps hear from Mr Allen next.

MR ALLEN:   If the Court pleases, I adopt Mr Callaghan’s submissions regarding the inadequacy of the directions to the jury with respect to section 8 and that particular element of the offence being committed in the prosecution of the unlawful purpose.  The need for careful directions regarding section 8 was acute in the case of Yvonne Heathcote.  She, unlike David Heathcote, not having accompanied Crothers in a vehicle to the scene of the offences, there was absolutely no evidence to suggest that she was aware of the possession by Crothers of the firearm that was used to cause that death. 

HAYNE J:   Was there evidence that she was aware that the other members of the party had armed themselves with bars or baseball bats?

MR ALLEN:   There was some suggestion that she could have been aware of the possession by other persons of a golf club and a bat that were in the same vehicle that she was travelling in.  There was no evidence, though, that those weapons were ultimately used in assaulting the complainant in the matter.

HAYNE J:   There was evidence, was there not, that she had spoken of, what was it, punching the intended victim’s head in or some expression of that kind?

MR ALLEN:   Yes.  There was evidence of a threat by her over the telephone to that effect.  What was absent, though, was evidence of a discussion of a plan of that nature with any of the accomplices.  There was some evidence to suggest that another purpose of the travel to the vicinity where the offences occurred were to collect some belongings which were owned by her daughter.  In any event, it was necessary to identify the nature of that plan specifically.  There was a comment made by your Honour about the plan in fact being carried through, which was the assault of the person, Hoghes, but the identification of the plan could have been from one extent a plan to inflict serious harm, which did not in fact occur, through to a plan to use some violence right through to the plan being to use weapons in self‑defence if required.

Of course, the objective liability of Ms Heathcote was to be determined according to her knowledge of the common purpose and for that reason, given that the proof of that common intent was by way of inference from circumstances, it was essential that the jury be directed in terms of Knight v The Queen as to the drawing of those inferences with respect to the common intent.  Instead it was left on this basis; either there was a plan to inflict serious injury, as contended by the Crown, or there was a plan simply to collect belongings.  That misdirected the jury, it is submitted.  They should have instead been directed to form their own view as to the extent of the common intent and that, as I have earlier submitted, lay upon a spectrum from no violence to the causing of serious injury, and they should have been directed that it was only if there was no other reasonable inference available that they could find that the common intent was to inflict the serious injury.

They should also have been directed in the circumstances, particularly with respect to Yvonne Heathcote, as to the notion of departure.  Could I refer to this Court’s judgment in Keenan and, in particular in this respect, to the reasons of Justice Hayne at paragraph 91 in Keenan.  In that case your Honour pointed out that the trial judge in Keenan had:

rightly told the jury to consider whether the shooter had acted “independently of and outside the common intent, or was [his carrying a gun his] reflection of a reasonable means of implementing” the common intention.

Now, the absence of such a direction in this case is a fundamental omission and coupled with the direction in fact given to the jury in this case that they need not be satisfied that killing by shooting was a probable consequence but merely the infliction of some grievous bodily harm or death by some other means, has failed to adequately address the jury as to the parameters of derivative liability pursuant to section 8.  Likewise, in this matter there has been a failure to give other directions which were in fact given by the trial judge in Keenan and thus considered ultimately by this Court to be sufficient. 

Could I take your Honours to the applicant’s outline of argument at page 230 of the application book.  In this case, at paragraph 13 we set out what direction was in fact given by the trial judge and that included the ultimate sentence quoted:

You would not need to be satisfied that it was objectively likely that he would be murdered by the use of a gun.

Your Honours will see that we contrast the directions that were in fact given by the trial judge in Keenan in paragraph 14 and then, as I have already submitted, the direction in the terms of Knight v The Queen, paragraph 15.  That is then taken up at paragraph 17 of the applicant’s outline of argument with reference to the judgment of Justice Kiefel in Keenan that although such a direction is not required in every case, it may be called for when the prosecution relies on circumstantial evidence.  In this case, the evidence as to the common intent shared by Mrs Heathcote was indeed a circumstantial case, as noted in paragraph 18 of the applicant’s outline.

What the applicant submits has happened in this case, when one looks at the terms of the summing‑up, is that the trial judge has seized upon that part of the judgment in The Queen v Keenan whereby it was held that, in the circumstances of that case, the actual weapon used to cause serious harm did not assume great importance and has elevated that to a general proposition that, in the section 8 case, the means used to cause in this case a killing did not assume any great importance.  The direction given by the trial judge that the jury need not be satisfied that it would be objectively likely that the murder occurred by way of a firearm may be strictly correct, but in the absence of those other appropriate directions confining the derivative liability pursuant to section 8, it was liable to mislead the jury. 

In all the circumstances, when one looks at the terms of the summing‑up that was in fact delivered in the case of Mrs Heathcote, the directions regarding section 8 were ultimately inadequate.  The unexpected introduction of a lethal weapon in this case certainly permitted a conclusion that Crothers had acted beyond the scope of the common intent and that in such circumstances Mrs Heathcote would not properly be liable, pursuant to section 8, for an offence of unlawful killing let alone an offence of murder of the type that was in fact committed by Crothers.  Your Honour, those are the submissions.

HAYNE J:   Just before you sit down, where do you say most conveniently in the judgment of the Court of Appeal do we find the error of which you complain?

MR ALLEN:   That is found, it is submitted, most conveniently in paragraph [104] of the judgment of the Court of Appeal, because at that point, in dealing with the appeal regarding Mrs Heathcote and the trial judge’s instructions concerning the application of section 8 to the facts, the Court said, after dealing with the directions that were in fact given, states “The appellant’s submissions do not” ‑ ‑ ‑

HAYNE J:   We can read it for ourselves.  What more do you say the trial judge should have told the jury?

MR ALLEN:   He should have directed the jury in the way that the trial judge in fact in R v Keenan directed the jury as outlined at paragraphs 14, 15 and 17 and 18 of the applicant’s outline of argument at pages 230

and 231 of the application book.  So he should have directed them to carefully consider what the nature of the crime committed was, that the state of knowledge of the accused was an important circumstance to consider in determining the precise nature of the common unlawful purpose and that Crothers, in carrying a gun and contemplating firing it, may have independently thought he would depart from the common intent, that they should bear in mind such possibility and consider whether there was any feature emerging from the evidence warranting a suspicion that Crothers may have been inclined to act independently in such a way and whether in doing so, he in fact acted independently and outside of the common intent. 

They should also have been directed in the terms of Knight v The Queen that in drawing inferences as to the scope of the common intent, the jury was only entitled to draw the ultimate inference that the common intent was to inflict serious harm if that was the only reasonable inference open on the evidence.  So those are the directions, it is submitted, your Honours, that should have been given and which were not given and therefore the reason why the Court of Appeal was in error at paragraph [104] of the judgment in stating that “It is not obvious that anything more could sensibly have been said.”

HAYNE J:   Yes.  Thank you, Mr Allen.

MR ALLEN:   Thank you, your Honours. 

HAYNE J:   Mr Copley, we would be assisted if you directed argument to the matters advanced by Mr Callaghan orally and to the matters advanced by Mr Allen orally.

MR COPLEY:   Yes, your Honours.  Your Honours, the direction that Mr Callaghan asserts was not given was, in the respondent’s submission, actually given if your Honours have regard to the following passages from the application book of the Heathcotes.  I take your Honours to page 81 of the application book where, in the first paragraph, her Honour directed the jury that:

if two or more people plan to do something unlawful together, and in carrying out the plan –

I emphasise that phrase –

an offence is committed, each of them is taken to have committed that offence –

only if it was probable – and I emphasise the phrase –

as the result of carrying out the plan.

That is an explanation of the meaning of the phrase “in the prosecution of”.  Your Honours see it put more explicitly at the foot of page 81 where her Honour said, at line 50:

you have to consider whether the prosecution has satisfied you beyond reasonable doubt –

of the following things.  Then the sentence or the phrase after (a) is not important, it is (b):

that the murder of Hoghes was committed in carrying out that purpose –

Again, an explanation about the phrase “in the prosecution of”.  Then I take your Honours to page 83 of the application book at about lines 35 to 40 where her Honour said:

If you are left with a reasonable doubt whether murder was the kind of offence likely to result from carrying out that plan, you cannot find any of these three defendants guilty of murder –

My learned friend, Mr Callaghan, and my learned friend, Mr Allen, place reliance upon, for their proposition, the observations made by your Honour the presiding judge in Keenan at paragraph 91 and, in my submission, all your Honour was merely doing in that case was observing that in the particular circumstances of that case it was correct for the judge in that case to have directed the jury to consider whether or not:

the shooter had acted “independently of and outside the common intent –

Your Honour was not purporting, in my submission, to lay down a hard and fast rule, and Mr Callaghan acknowledges in his supplementary outline that his submission is tantamount to a proposition that a direction of that nature needs to be given in almost every section 8 case.  Leaving aside the validity of that complaint, the respondent’s submission is that the jury was appropriately told that the offence had to be committed in the prosecution of, that is, in the carrying out of, the common unlawful plan and to have been an event that might well occur.  Thank you, your Honours.

HAYNE J:   Does that cover both of the Heathcotes?

MR COPLEY:   Well, it probably does, but I suppose the other thing to be added about Yvonne Heathcote concerning the directions that Mr Allen

contends should have been given which he draws from paragraph 14 of his written submission, the second complaint is that the jury should have been asked to consider the state of knowledge of the accused, Yvonne Heathcote.  The respondent contends that a direction like that would have had the effect of focusing the jury upon the following sorts of things:  that it was Yvonne Heathcote who was called the slut; that it was Yvonne Heathcote who said that she was getting some fellows to come and beat Matthew’s head in; that there was evidence that Yvonne Heathcote sat in the back of the vehicle between Gatton and Jondaryan and that the golf club and the aluminium bat were in the back of that vehicle; and the evidence was that it was Yvonne Heathcote who telephoned Crothers, who was in Ipswich at the time, and as a result of that telephone call, whatever she said to him no one knows, but Crothers gathered Rogers, they gathered a weapon and live rounds and then went to Jondaryan and met up with Yvonne Heathcote.

So, in my submission, it really would not availed Yvonne Heathcote had these sorts of specific matters been drawn to the jury’s attention.  There was no application by her counsel for any further or better directions in the case either.  I also draw your Honours’ attention to application book 90 in the Heathcote application book where her Honour specifically directed the jury that before they could find Yvonne guilty of murder, they had to be satisfied beyond reasonable doubt that the plan was to seriously injure, rather than simply collect gear, that murder was a probable consequence of the plan, the objective likelihood of the murder of Hoghes depended largely on what the plan was, her Honour said. 

To explain to the jury the evidence in further detail about the plan would not have been particularly helpful to Yvonne Heathcote given that she was the moving party or the person that galvanised into action all of these people to go to Jondaryan and thereafter to Tara.  Thank you, your Honours.

HAYNE J:   Thank you, Mr Copley.  Mr Callaghan, is there anything you wish to add in reply?

MR CALLAGHAN:   Just briefly, your Honours.  The passages quoted by Mr Copley were in the category of that half dozen or so which we acknowledge amounted to repetition or paraphrase of the section, but they were not, we submit, related to the case in a meaningful fashion.  The only other point was that there was a further question in redirections and it appears at page 1531 of the transcript, which you apparently do not have, at line 12, and it was reflected by this statement from her Honour:

You’ve asked me to re-address the section 8 case against David Heathcote on murder.  I’m going to remind you of what I said yesterday –

and then her Honour did.

HAYNE J:   Thank you, Mr Callaghan.  Mr Allen?

MR ALLEN:   I have nothing in reply, your Honours.

HAYNE J:   Thank you, Mr Allen.  The Court will adjourn for a time to consider the course it will take in these matters.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.36AM:

HAYNE J:   We will deal first with the applications of David Heathcote and Yvonne Heathcote. We are not persuaded that it is arguable that the directions which the trial judge gave the jury about the application of section 8 of the Criminal Code (Qld) were inadequate in the circumstances of this case. It is not otherwise arguable that there has been any substantial miscarriage of justice in this matter. In each application special leave to appeal is refused.

We will deal next with the matter of Rogers.  The applicant was legally represented at his trial for murder but after the trial had proceeded for some days, he dismissed his representatives.  Later in the trial he may be understood as having asked for an adjournment to obtain other legal representation.  We are not persuaded that the trial judge erred in continuing with the trial or that her doing so occasioned any substantial miscarriage of justice.  Special leave to appeal is refused. 

I should add that, to the extent to which Mr Rogers persists in his application for leave to appeal in respect of grounds of inadequacy of direction concerning self‑defence and as to the issue of section 8 of the Criminal Code for the reasons given in the matters of David Heathcote and Yvonne Heathcote, the application should be dismissed.  In respect of the grounds concerning the allegation of self‑defence, we are not persuaded that it is arguable that the directions given by the trial judge were erroneous. 

AT 10.38AM THE MATTERS WERE CONCLUDED