Holden v The Queen

[1991] HCATrans 244

..

4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al of 1991

B e t w e e n -

MICHAEL STEPHEN HOLDEN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 3 SEPTEMBER 1991, AT 2.56 PM

Copyright in the High Court of Australia

Holden 1 3/9/91

MR M. DAVID, OC: If the Court pleases, I appear with

MR I.J. SAMPSON, for the applicant. (instructed by

Mahony's)

MR B.J. JENNINGS, OC: If the Court pleases, I appear with

my learned friend, MR P.R. BREBNER, for the

respondent. (instructed by the Crown Solicitor for

South Australia)

MASON CJ: Yes, Mr Jennings. Yes, Mr David.

MR DAVID:  If the Court pleases, the point upon which

special leave is sought is whether as fundamental

an error by a trial judge as leaving felony murder

as a basis for conviction in his charge to a jury

when it was agreed it was totally inappropriate and

when it was left in a case when the whole concept

of felony murder was never raised by anyone, can be

rectified and cured by a redirection after the jury has retired. It is submitted that it is of special

importance in this case when the whole of the

defence involved around the accused's or the

applicant's lack of intention or his intention to

commit the murder. There was never any suggestion

that he did not kill the deceased; the case

revolved around his state of mind and there was

evidence called as to whether it was affected by

heroin and alcohol and his defence was that he did

not intend to cause grievous bodily harm.

The Crown case was that there was a plan to

rob the deceased by the applicant and his

co-accused, who was acquitted. The plan was, on

the Crown case, that after administering some

valium to the deceased they were going to, if one

could, quietly rob him while he was asleep and take

his purse, but there was a bashing and a fight after that had been done - what I might call a

discrete and totally different incident to the

robbing - and as a result of that bashing, the

deceased was killed.	The issue at trial was the
applicant's state of mind during that bashing and,

if the Court pleases, that was how the case was

fought from beginning to end.

During the course of the judge's charge to the jury he said this, and I go to page 46 of the

application book. It is set out in the judgment of

Justice Perry, who wrote the leading judgment:

I have spoken of intention necessarily to be

proved beyond reasonable doubt if a murder

charge is to be sustained. You will remember intention to kill or to cause grievous bodily

harm must be proved.

Holden 2 3/9/91

I must now speak of something that has been

spoken of much and that is what is called

felony murder.

I pause there. When the learned trial judge said

"spoken of much" it certainly was not spoken of

during the trial.

That means the killing of a human being whilst
or in the course of the commission of another
offence. If that happens then the intention

to kill or cause grievous bodily harm is

presumed. If I go into a bank with a loaded

firearm, point the firearm at the teller and
have no intention of discharging it but do,

for some reason, discharge it and kill the

teller, I am guilty of murder even though I

had no positive intention in my mind of

harming the teller at all. I have gone about

committing a crime. That crime is armed
robbery and, if someone has been killed as I

am doing it, I am then guilty of murder.

He then went on:

You see, that becomes relevant in this case because a limb, or a path, of the Crown case is that death was caused during robbery.

I pause there. It was never a limb or a path of

the Crown case, as it was presented; it was never

mentioned. He then went on:

It is said that Kulis, not having succumbed to the Valium, Holden struck him, hit the larynx

and caused death. If that be proved beyond

reasonable doubt, well, then the verdict would

be guilty of murder".

If the Court pleases, after his charge to the jury

had finished, counsel for the Crown asked that that

be retracted, because that was never the Crown

case, because the Crown case always was that the

incident involving death took place well after this

peculiar form of robbery.

The jury were then brought back after what,

admittedly, was a short period of time, but

nevertheless they had retired and were brought back

and His Honour said this, and this is at page 47,

also in the judgment of Justice Perry:

Ladies and gentlemen, as I have forecast

counsel has kindly drawn my attention to some
things and I must say something more to you.

First of all, it has been pointed out to me timing in this matter, if there was any

Holden 3/9/91

robbery, means that my reference to felony

murder was inappropriate. Felony murder is

where death occurs during the course of

committing another crime. In this case, if

there was any robbery it was completed before

death and felony murder doesn't come into it.

You have to ask yourself still in relation to

the accused whether on the charge of murder

intention to kill or cause grievous bodily

harm has been proved beyond reasonable doubt.

With regard to the accused Walters; if he gave

any assistance at all after the death that

cannot amount to encouragement to kill because

the death is over.

That does not concern us, if the Court pleases;

that was the co-accused.

Help afterwards might, along with other

things, help you to look to see whether you thought encouragement before death had been

proved beyond reasonable doubt but help

afterwards is not encouragement to kill of
itself. Moreover, if the plan was or if

Walters might have contemplated that Holden

might use a little bit of violence, just a

blow or two rather than extreme violence then,

of course, Walters could be found guilty of

manslaughter.

I read all of his correction to the jury, although some was not applicable to this matter before the

Court.

If the Court pleases, the jury then retired

with that final direction having gone out

previously.

MASON CJ:  What attitude did counsel for the accused take?

MR DAVID:  They wanted a redirection also, if the Court

pleases.

MASON CJ: They sought a redirection?

MR DAVID:  They agreed with the Crown; the Crown having made

the original application that there should be a

redirection.

MASON CJ: Yes, and did counsel for the applicant seek any

further redirection after the jury were redirected?

MR DAVID:  No, not at that stage, no, but of course, that

redirection has problems also, if the Court

pleases, which is a complicating factor in this

case, because the learned trial judge talks about

Holden 3/9/91

another offence, as distinct from the common law

position, which is applicable in South Australia,

of an offence involving violence.

GAUDRON J:  But I take it there was no application to

discharge the jury - - -

MR DAVID:	No, there was not.
GAUDRON J:	- - - and that is what you now say should have

been done, is it?

MR DAVID:  If Your Honour pleases, at that stage it is my

submission that the matter was really beyond

redemption, but yes, that should have been done at

that stage.

GAUDRON J: Yes. You are not suggesting here that further

redirections could have cured it?

MR DAVID:  No, and that is the whole gist of the point of

special leave, that it was beyond cure at that

stage.

GAUDRON J: But no application was made for it?

MR DAVID: No, not for a discharge of the jury.

GAUDRON J: Well, where can the error be on the part of the

trial judge if no application was made?

MR DAVID:  In saying it in the first place, if the Court

pleases. It was something that was done that could

not be altered at that stage, other than by

discharge - I suppose a tactical decision was

made - but it was at a stage of the trial where it

was very difficult for the defence as well as the
prosecution, because the case was at a delicate

stage; it was in effect at its end, and defence

were placed in an invidious position where

something totally new was foisted upon them.

So this point of special leave, if the Court

pleases, is that there must be, or there are

situations, where a direction is of such a nature

that really nothing can be done about it.

GAUDRON J: But what is it that gives that direction this

quality?

MR DAVID: Well, it is my submission that felony murder is a

very unusual route towards a conviction for murder

and it has to be done in peculiar and very definite

circumstances, because of course it takes away the

matter of intention, as the Court knows. In this

case, the whole of the defence case was concerned

with the accused's state of mind. What made it

Holden 3/9/91

more difficult in this case is that the facts

surrounding felony murder, if it was to be left,

were not in any way gone into, because it was never

thought that it would be left and it came at such a

very late stage in the trial, just before the jury

had gone out, for the first time, at the end of his

charge.

Now, those peculiar events, in my submission,

bearing in mind the very extreme nature of a felony

murder direction which, I think I am correct in

saying, is given in rare circumstances and given

less and less, especially in cases where the only

defence was one of intention and state of mind,

that in those circumstances there is really very

little that could be done to rectify this problem,

coming as late as it did and in the way that it

did. Now, admittedly there was no application to

discharge but, in my submission, even looking at

the matter now, it was beyond cure.

GAUDRON J:  Does that mean anything more than it must be

presumed that a jury would act on it no matter what

was said by way of correction?

MR DAVID:  Yes. In my submission in this matter - it is

getting a little away from the leave point - the

danger that is faced is that jury has been told,

during the course of a summing up, that you do not

need intention.

GAUDRON J: Yes, but one would presume, would one not, that

the jury is going to act in accordance with the

directions given, including the direction to ignore

the earlier slip relating to felony murder and you

say it is incurable. It can only be incurable

because, for some reason, we are to presume exactly

to the contrary.

MR DAVID:  In the circumstances of this case where a clear

direction has been given that there is no intention

needed at a late stage of the trial and in my

submission the question of special leave is

whether, in certain circumstances, that can be

rectified.

If the Court pleases, the Court of Criminal

Appeal in the leading judgment of Justice Perry at

page 50 - I will not read it - of the appeal book,

merely said that by the time the learned trial

judge had completed his remarks and retracted what

he said in the relevant part of his summing up, the

matter would have been made clear to the jury and

the situation was rectified. It is my submission
that that really is taking a very unrealistic view

of the situation of a trial at a stage when all of

this happened, namely, after they have retired,

Holden 6 3/9/91

when they have been brought back - and of course,

often they are brought back for redirections on

certain things - but on a matter as fundamental as

this, brought about when they had been given a

clear direction that no intention was needed for

there to be a verdict of guilty, it is my

submission that whether that can be rectified is a

matter worthy of special leave, if the Court

pleases.

MA.SON CJ: Yes, thank you, Mr David. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 3.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.17 PM:

MA.SON CJ:  The Court need not trouble you, Mr Jennings.

MR JENNINGS: If the Court pleases.

MA.SON CJ:  The matters complained of by the applicant give

rise to no question of general principle and we are

not persuaded that there is a real likelihood that

the jury would not have acted in accordance with

the trial judge's redirection. The application for

special leave is therefore refused.

AT 3.18 PM THE MATTER WAS ADJOURNED SINE DIE

Holden 3/9/91