Heijne v State of Western Australia

[2010] HCATrans 278

[2010] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2010

B e t w e e n -

GERARDUS GERRIT HEIJNE

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 2010, AT 12.29 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR S. VANDONGEN for the applicant.  (instructed by Michael Tudori and Associates)

MR B. FIANNACA, SC:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GUMMOW J:   Yes, Mr Grace.

MR GRACE:   Your Honours, firstly could I just deal with an administrative matter.  Could I hand up to your Honours a replacement page for page 1 of the application book because the copy of the indictment that was contained at page 1 was in fact the incorrect document and you will see in the replacement document that the alternative of murder was pleaded.

Your Honours, the crucial issue for the Court of Appeal to determine was to conclude whether or not the jury could be satisfied that the only rational inference that could be drawn from all the evidence was that the applicant intended to do the deceased some grievous bodily harm at the time he compressed the deceased’s neck. That process of determination is conducted in the context of the definition contained in section 1 of the Criminal Code (WA) that defines “grievous bodily harm” as:

any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or to be likely to cause, permanent injury to health -

The error that the Court of Appeal fell into was in adopting an approach that examined whether the evidence was capable of giving rise to proof beyond reasonable doubt that the applicant intended to do some grievous bodily harm.  What the court ought to do, in our submission, was to have considered whether a rational inference on all the evidence could be excluded beyond reasonable doubt, namely that the applicant compressed the deceased’s neck in the context of a struggle in an effort to incapacitate the deceased without any intent to do grievous bodily harm.

Could I invite your Honours to turn to page 78 of the application book.  At paragraph 56, his Honour the Chief Justice stated the confines of the challenge to the conviction, and you will see at line 39, his Honour said:

the ground is focused only upon the adequacy of the evidence to sustain a finding of intention to cause grievous bodily harm.

At paragraph 60 on page 79 his Honour correctly stated the test that the court was required to apply.  At paragraph 70 on page 82 at line 31, his Honour said this:

The sustained application of a significant degree of compressive force to the neck is a quite sufficient basis for a jury to draw an inference of intention to cause some grievous bodily harm.

He followed that up at 71 by saying, after rejecting the propositions that are discussed at 69 and 70, that strangulation was only consistent with an intention to cause death.  His Honour sets out the other evidence in addition to the pathological evidence that in combination, his Honour said, was capable of sustaining the inference that there was an intention to cause some form of grievous bodily harm. 

What his Honour sets out in subparagraphs (a) to (f) of paragraph 71 is essentially the applicant’s version of events supplemented by a number of witnesses, and could I indicate, your Honours, for the purpose of correction, that in paragraph (e) on page 83 of the application book, the reference to the deceased’s name should be replaced by the reference to the applicant’s name.  But that is of no moment. 

Could I just ask your Honours to gloss over those particular paragraphs and your Honours, in our submission, would come to the conclusion that none of those factors in combination with the pathological evidence could allow a conclusion that all the evidence was capable of sustaining the inference to the exclusion of all rational inferences consistent with innocence that there was an intention to cause some form of grievous bodily harm.  In so stating the task that was undertaken by his Honour in the conclusion reached, his Honour failed to do what the case of M v The Queen said should be done, namely, ask oneself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt.  If you undertake that ‑ ‑ ‑

BELL J:   Sorry, Mr Grace, I am having some difficulty seeing upon that test why the matters to which reference were made leads to the view that the conclusion the Court of Appeal reached was wrong.  We are dealing with strangulation in circumstances in which the victim was naked, was, I think, of smaller frame than the applicant, the pressure applied as a matter of fact such as causes death, and one has evidence from which it would have been open to the jury to infer consciousness of guilt in the lies and the conduct of the applicant in his discussion with Mr Stefani.  Now, why does that not admit of the answer to the test posed in M, regardless of whether it was at one point incorrectly stated, being answered in the way the Court of Appeal answered it?

MR GRACE:   What we submit is this, that his Honour did not consider the rational inference that was open on the evidence consistent with all of the evidence that his Honour referred to, that the strangulation occurred without an intention as to grievous bodily harm on the part of the applicant.  Could I just take your Honours back to that paragraph ‑ ‑ ‑

BELL J:   Manual strangulation involves, one would think it might not be hard to infer from that circumstance, an intention to do an injury that would be likely to endanger human life.  These things - one draws reasonable inferences from the conduct, Mr Grace.

MR GRACE:   Yes.  Your Honour, could I just take you to paragraph 70, where his Honour does touch upon that very issue.

BELL J:   Yes.

MR GRACE:   You will see at the start of paragraph 70, his Honour says, this is on page 82:

Strangulation can, of course, cause death.  However, as Dr McCreath explained in her evidence –

Dr McCreath was a pathologist –

neck compression can deprive the brain of oxygen through a number of possible mechanisms.

This is a crucial sentence I want to focus upon:

Obviously, restriction of the flow of oxygen to the brain is capable of causing a variety of injuries, including injuries of a kind falling within the definition of grievous bodily harm.

The problem was there was absolutely no evidence before the jury from Dr McCreath or anyone as to what those possible injuries, short of death, could have been.  It was all speculative when the jury came to consider whether ‑ ‑ ‑

BELL J:   There was the demonstration of the gesture and it is the demonstration of the gesture, consistent with the circumstance that as it happens the deceased died of – it was open to find - neck compression.

MR GRACE:   Yes.

BELL J:   When one takes the gesture and one considers what might be the intention of a person who does that to another, it might be thought open to conclude that the intention is, at the least, to endanger human life.  It is a risky thing to do, Mr Grace.

MR GRACE: Yes, it absolutely is a risky thing to do and the prosecution ran a very strong case that clearly by those actions the applicant evinced an intention to kill. The jury was not satisfied beyond reasonable doubt that he had an intention to kill. Therefore, the jury had to consider the alternative, that is, an intention to do grievous bodily harm in the absence of any evidence that would allow the jury to come to the conclusion as to what particular injury, comprised within the definition of “grievous bodily harm” in section 1 of the Code, the applicant intended to inflict upon the deceased and it is not ‑ ‑ ‑

BELL J:   You are not moving back to the “particular injury” argument for grievous bodily harm, are you?

MR GRACE:   No, I am not moving back to that, but there has to be some form of grievous bodily harm intended and that form has to be such as to endanger life or cause permanent injury to health.  There was simply no evidence before the jury to allow them to come to that conclusion.  That is because the whole case was focused upon from the prosecution’s side proving the intent to kill, from the defence side from suggesting self‑defence had not been negated or, at the very worst, manslaughter.  No attention was given throughout the trial to this alternative of murder simpliciter, that is, the intent to cause grievous bodily harm. 

So when his Honour came to consider the test to be applied and the evidence that he had to consider, as he was doing on behalf of the court, as to whether the evidence taken at its highest met the test postulated in M v The Queen - and as your Honours will recall in Hillier this Court interfered in circumstances where an intermediate Court of Appeal had not correctly applied the test - we say that his Honour did not correctly apply the test and in circumstances where there was a deficiency of evidence to suggest what the possible form of permanent injury to health could have been, short of death, because you cannot include death within the definition of “grievous bodily harm” in section 1 - it has to be something short of death – what was the injury? There was simply no evidence of that.

Now, if one, in the course of a struggle, grabs another by the neck, but without an intention to kill, and that other dies, in the absence of an admission of an intent to cause grievous bodily harm how could there ever be a conclusion or satisfaction beyond reasonable doubt of an intent to cause grievous bodily harm in those circumstances?  That is the issue that was posed, that we say his Honour on behalf of the court did not grapple with. 

The post‑mortem examination in this case did not take the matter any further and his Honour referred to an unreported Queensland decision of Craggs at paragraph 59 where, in order to substantiate the proposition that a post‑mortem examination can be used to establish the requisite intent for conviction of murder on the basis the injuries revealed an intent to cause some grievous bodily harm, but that of course might be the case where you would have a serious assault involving kicking or a succession of punches or stabbings, of that nature, but not in circumstances where the sole act was the grabbing of the throat with a hand, the squeezing, obviously, of that throat, the falling onto a bed, the failure to let go, and the very short compass in time, death resulting, without any other physical act that was said to contribute to that death.

So that is how we put it, your Honours, and we of course rely upon the written submissions and we say that there is nothing contained in the respondent’s submissions that deals with that issue or caters to that issue as to what was the suggested form of permanent injury to health that could have been intended by the applicant at the time that he did what he did.  Those are the matters.

GUMMOW J:   We do not need to call on you, Mr Fiannaca.

Notwithstanding what has been submitted by the applicant, it appears to us that there are no prospects of displacing the decision of the Court of Appeal of the Supreme Court of Western Australia so as to warrant a grant of special leave in this matter.  Special leave is refused.

We will adjourn until 1.45 pm.

AT 12.46 PM THE MATTER WAS CONCLUDED