Hubert v The Queen

[1994] HCATrans 286

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1993

B e t w e e n -

GREGORY JOHN HUBERT

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 1994, AT 11.56 AM

Copyright in the High Court of Australia

Hubert 1 22/4/94

MR P.G. GUIDICE: If it please Your Honours, I appear for

the applicant. (instructed by George Giudice)

MR J.R. McKECHNIE, OC: If it please Your Honours, I appear

for the respondent with my learned friend,

MS Z.A. BOYATZIS. (instructed by the Director of

Public Prosecutions (Western Australia))

BRENNAN J: Yes, Mr Giudice.

MR GIUDICE:  May we start, Your Honours, by saying that

there are two matters that the applicant complains about. The first is in relation to the refusal to extend time within which to appeal.

BRENNAN J:  I think you would be better served in this Court

by going directly to the second matter.

MR GIUDICE:  Yes. Can I start then, Your Honours, by

referring to page 52 of the appeal book, where the

Court of Criminal Appeal, where Mr Justice Murray,

said:

In my opinion therefore the directions of his

Honour of which complaint is made in grounds 2

and 3 were, with respect, incorrect, but the
error of law has occasioned no miscarriage of

justice of which the applicant may complain.

That statement, we say, is to be taken issue with, with respect, because it cannot be said that if the

directions as to the law in relation to section 266

of the Criminal Code, and as to accident, were

correctly put, that the jury would not have decided

the case any differently, and it - - -

BRENNAN J:  How can you say that, in the light of a finding of the jury, of the intent?

MR GIUDICE: Because, if one reads section 266 of the Code,

which is on page 4 of the application book, it says

this at the end of it:

and he is held to have caused any consequences

which result to the life or health of any

person by reason of any omission to perform

that duty.

And, His Honour the trial judge read that section

to the jury. So those words would have been

ringing, in my respectful submission, in the jury's

ears. That is, that a person is held to have

caused those consequences if he has negligently

used a dangerous object, or not taken care with it.

And when you combine that, Your Honour - - -

Hubert 2 22/4/94

BRENNAN J:  Is there any doubt as to whether or not the

stabbing had caused the death?

MR GIUDICE:	No.
BRENNAN J:	Is not that what those words deal with?

MR GIUDICE: Yes, but when you take - - -

BRENNAN J: Section 266 is a provision of the Code which is

intended to provide the causal link between an

omission and a result. Here you have got a

positive act of stabbing which caused death.	It
just does not apply.

MR GIUDICE:  Your Honour, when you take into account the

trial judge's direction in relation to likely and

probably consequences of a person's action, and

read it in conjunction with that statement that a

person is held to have caused any consequences, and

given that both of those directions were incorrect

in this case, it is an extremely dangerous

combination to put to the jury, and would detract

from their consideration of the real question, and

that is the person's actual intention at the time,

with respect. That is what worries me about the

matter. And, if I can refer you to the case of

Ugle, where, on page 516, the Court said that

Having regard to the limited nature of the admissible evidence on the question of consent, it is impossible to say that the

wrongful admission of Miss Morgan's evidence,

the invitation to use it in the manner

indicated and the absence of appropriate

qualification of the prosecution's assertion

that the complainant's account was before the jury did not operate to deprive the applicant

of "a chance which was fairly open to him of

being acquitted".

And, in the same way, it is my submission that

His Honour's reading of section 266, combined with

his discussion of the likely and probably

consequences of this applicant's actions, brought

about a trial that was significantly different from

that which would have taken place if the jury had

been correctly charged, and - - -

GAUDRON J:  Is it not that the direction - well, it is not a

direction - the acknowledgement of section 266,

which seems to have been there merely for the same

of filling out the relevant provision of the Code,

was more favourable to your client than he was

entitled to in the circumstances. It opened up a

possibility in his favour which, really, was not

open to him. It did not deprive him of one.

Hubert 22/4/94

MR GIUDICE: With respect, I would submit that that is not

the case because it opened up in the jury's mind

this question of a person being held responsible .

for the consequences which result to the life or

the health of any person by reason of a negligent

act, and when that is combined with the

misdirection, in relation to - - -

GAUDRON J: Well, there may be room for argument as to

whether there is, in fact, a misdirection, as you

keep asserting in that other matter.

MR GIUDICE:  I am sorry. In my submission there was a

misdirection and, I think, His Honour

Mr Justice Murray said, also, Your Honour, that

that direction in relation to intending that the

natural and probable consequences of your actions -

or, at least, that an inference can be drawn from a

person's actions, along those lines, that that,

combined with raising the irrelevancy of

section 266, created a dangerous situation and

would have detracted the jury from the proper question.

In addition to that is His Honour's direction

about alcohol and the way that that could be taken

into account by the jury, and I refer Your Honours

to page 59 of the appeal book where His Honour the

trial judge said:

It is for you to weigh up in your minds what

degree of alcohol consumption did take place,

what the effect of it was, whether it has any effect upon the accused's capacity to form an

intention.

GAUDRON J: That was after a more comprehensive direction

had been given earlier.

MR GIUDICE:  Yes, Your Honour. I was just coming to that.

That was after a previous direction that His Honour

had given, but the previous direction which is on

page 57 of the appeal book speaks repeatedly of a

drunken person, which, when read with his later

direction, in my respectful submission, would lead

the jury to believe that it must be a person who is

very considerably intoxicated, indeed, before you

look at the intoxication of that person in

determining what the intention was. But, when

added to the other direction in relation to the

natural and probable consequences of your actions,

and the relevant consideration of section 266, it

becomes more important than it may be if it stood

on its own.

So, in relation to His Honour's discussion

about the natural and probable consequences of a

Hubert 22/4/94

person's action, although he commenced by warning

the members of the jury about proceeding in that
fashion, he then proceeded on and undid the

caution, perhaps, that was placed in the jury's

mind by telling them that the natural and probable

consequences of a person's actions may be very good

evidence of what their intention was. Not in those

words, but that was the effect of them. The

High Court has said that that position should not be left to a jury and that it is very dangerous.

Given that this man was -

BRENNAN J: What is not to be left to the jury is the

presumption of the intention? It has never been

said that the actual probable consequences may not

be relevant evidence of the formation of intention,

surely?

MR GIUDICE:  My understanding of the case of Smyth v Reg,

Your Honour, was that the proposition that the jury could ascertain a person's intention from the

natural and probably consequences of their action

is an undesirable and dangerous - - -

BRENNAN J:	Do you mean the evidence is not admissible?
MR GIUDICE:	No.

BRENNAN J: What.are you saying then?

MR GIUDICE:  I am saying that for the judge to charge the

jury that it is of great assistance to themto look

at the natural and probable consequences of a

person's action when ascertaining an intention, is

a dangerous proposition.

BRENNAN J: Can you contrast the direction with anything

that is said in Smyth?

MR GIUDICE:	No, Your Honour.
BRENNAN J: Well then, perhaps you have other submissions

that you wish to make.

MR GIUDICE:  Your Honour, if I can refer the Court to page 5

of	the summary of argument - I am sorry, I wanted
to	quote from Smyth v Reg. I have the quote here.
At	page 163, the following appears:

Where upon the trial for a criminal

offence a specific intent must be found, any reference to the supposed presumption that a

person intends the natural and probable

consequences of his acts, is apt to be

misleading, and no reference should be made.

Hubert 22/4/94.

So, His Honour, in this case - his direction, in my

respectful submission, would give the jury the

impression that a person - could be taken to intend

the natural and probable consequences of his act.

BRENNAN J:	He told them the opposite.
MCHUGH J:	He warned them against proceeding directly in

this way, and particularly against doing so in this

case. What he said was that "likely consequences

can throw light upon the intention with which an

act has been done."

MR GIUDICE: Yes, and "considerable light". My submission

is that that is put too strongly and too highly.

BRENNAN J: Yes.

GAUDRON J: Well, he did not say "considerable" as I read

the summing up either. He said:

Undoubtedly, likely consequences can throw

light upon the intention -

It is at pages 6 and 7 of the application book.

MR GIUDICE:  And then, on the top of page 7, Your Honour, he

says:

and in many cases they can throw considerable

light upon it.

GAUDRON J: Yes.

MR GIUDICE: So, the submission is that the directions were

wrong in law and that they were likely to mislead

the jury and that the applicant did not therefore

have the question of his guilt decided according to

the correct law. Do you wish me to move on to the

extension of time question, Your Honours?

GAUDRON J: What is actually the delay in coming to this

Court? What is the period of delay?

MR GIUDICE:  It was to the Court of Criminal Appeal,

Your Honour?

GAUDRON J: Yes, what was the delay?

MR GIUDICE:  Two and a half months.

GAUDRON J: Yes, thank you.

BRENNAN J:  We need not trouble you on that aspect. I think

you have got enough troubles on the first aspect,

Mr Giudice.

Hubert 6 22/4/94

MR GIUDICE: Yes, Your Honour. That completes my

submissions.

BRENNAN J:  Thank you. We need not trouble you,

Mr McKechnie.

There was no miscarriage of justice in this

case. The application for special leave must

therefore be refused. It is not necessary for us

to consider whether the approach of the Court of

Criminal Appeal to the extension of time to appeal

to that Court is one which we would endorse.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE

Hubert 22/4/94