Judge v The Queen

[1996] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 1996

B e t w e e n -

MICHAEL ALAN JUDGE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1996, AT 12.04 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR R. KELEMAN, SC:   If it pleases the Court, I appear for the respondent with my learned friend, MR G.S. HOSKING, SC.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Papayanni.

MR PAPAYANNI:   The questions in this application are what are the elements of section 110 of the Crimes Act and is “accident” or “unintentional act” a defence to that, and the wrongful application of Ryan’s Case to the situation under section 110?

Now, in the first place the section - your Honours, I think, have a copy of the section.  It is set out on page 14 of the application book. That section states:

Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to penal servitude for 25 years.

This section, of course, is a section that has been used now and is of importance because of this publicity in relation to home invasion.  It is an important section, as well as the application in this case of Ryan’s Case to it which, in our submission, is incorrect.  If one looks at that section one sees - and this is a substantive section, not an incidental section as in Ryan’s Case, and the elements of that offence are the breaking and entering and then what must be proved is the assault on any person with intent to murder that person, or any person.  So you have the elements first of the break and enter and then the element of assault with intent to murder.  The alternate count which is the count here which was charged is “inflict grievous bodily harm”.

Now, it is essential in relation to that particular offence that if you are endeavouring to prove the first limb of that, you would have to prove an assault and you would have to prove the specific intent of intent to murder.  So what the submission is in relation to the second part of that section is that you have to prove the infliction of grievous bodily harm.  Now, that means, in our submission, that it has to be a willed act and there has to be men rea in relation to it.

Ryan’s Case is applied, in this case, wrongly, in our submission, and I will deal with that in a moment.  The difference between section 110 and Ryan’s Case, in relation to the situation there, was an assault, an armed assault with intent to rob, and during that or immediately before or after that specific offence, that substantive offence, there was an assault or wounding, et cetera.

Now, the question in that case was totally different to the situation here.  We have a situation here where the substantive offence is in relation to those elements.  Now, if one looks at a situation - and the summing up is set out in relation to this case wrongly.  In relation to the specific charge, there had been included - and that is set out on page 2 - there had been set out the assault as being part of the offence and your Honours will see there:

and then being therein did assault Warwick Peter Clarke and did inflict grievous bodily harm upon Warwick Peter Clarke.

And, of course, the situation was you did not need to have the “assault” in, that was surplusage.  But it did lead the judge astray in relation to giving the elements of the offence because what his Honour said in relation to the elements of the offence were that if a person goes to a house armed and there is in his contemplation that that gun will go off accidentally, well then ‑ ‑ ‑

GAUDRON J:   That was not his Honour’s direction, was it? 

MR PAPAYANNI:   I beg your pardon?

GAUDRON J:   Was his Honour’s direction in contemplation that it would go off accidentally?  It was in contemplation that the gun might discharge.

MR PAPAYANNI:   Discharge accidentally, yes.  If one looks at page 18, line 10, your Honours will see there:

In respect of each accused when you consider his case did he contemplate ... that one of the contingencies of carrying a loaded gun into a house to intimidate whoever might be there is that the man with the gun might get a fright and discharge the gun and wound someone in there.

His Honour then went on to say in the next paragraph:

was that there might be a contingency arise in which that gun would be discharged accidentally or intentionally and cause injury.

And at the bottom of that page your Honours will see:

I stress upon you members of the jury that you do not have to find at all that there was any intention on the part of either that Clarke should be wounded, that would be a different charge altogether.  This charge is a charge of assault and inflicting grievous bodily harm.  If there was an assault and if the consequence of that assault was grievous bodily harm the charge is made out.

Well, there his Honour was really confusing the situation in relation to assault occasioning actual bodily harm where, of course, in that case you only need to prove the assault and you do not need to prove the intent of any actual bodily harm.

GAUDRON J:   Was that so wrong in the context of this case?  I mean, first of all you cannot - one imagines - well, I suppose there is, but there was an assault.

MR PAPAYANNI:   Well, no.  See, the situation is totally different to Ryan’s Case and I will come to that in a moment.  But the situation here ‑ what his Honour says - and if your Honour reads on there on page 19, your Honour can see:

If men go into a house and one of them has a gun and it is a loaded gun and he has got his finger on the trigger and he does not know what to expect in there, as is the case here and he is suddenly frightened or startled by the action of one of the occupants ... either waking up or making a grab at the gun and that gun goes off, the law says it is open to the jury to decide that that is an assault on that man and that both persons are liable for the offence of assault and inflicting grievous bodily harm.

Of course, in this case, all that was being relied upon was the question of what was said in the record of interview because the accused said that he was not there.  And you get the situation in relation to what was said in this case is set out on page 16.

GAUDRON J:   There was grievous bodily harm inflicted, was there not?

MR PAPAYANNI:   That is correct, yes.  So, the situation there - what he is saying, in effect - and this is where it goes wrong in relation to Ryan’s Case - is that it was pursuant to the armed robbery that the wounding took effect.  Here, it could not be pursuant to the break and enter because there is no crime of break and enter, so it could not be pursuant to that.  It is the same situation in relation to section 112 which is the first offence here that you have a break, enter and steal.  You have to prove the three elements:  break and enter; and you have to prove steal.

BRENNAN CJ:   Just let us try and get the problem in perspective.  There is an act which causes grievous bodily harm that has to be proved, is that right?

MR PAPAYANNI:   The act of - inflicting it was, and grievous bodily harm has to be proved as a- - -

BRENNAN CJ:   The act which inflicts grievous bodily has to be proved.

MR PAPAYANNI:   - - - willed act and that if it was done unintentionally, well that is a defence.  Here what was said was it was no defence, relying on Ryan.

BRENNAN CJ:   That is the problem.  The problem is simply whether or not the direction was one which allowed the jury to treat whatever was done that inflicted grievous bodily harm as being done involuntarily.

MR PAPAYANNI:   Well, that is what was not put.

BRENNAN CJ:   That is the problem that you are raising, is it not?

MR PAPAYANNI:   That is right.  They did not put that.

BRENNAN CJ:   Yes.  Well now, the question is whether or not the judge did put that or not because then the next question after that is what is the act which was done that must be voluntarily done that caused the grievous bodily harm?  Now, what was it?

MR PAPAYANNI:   The act was variously described in Ryan’s Case.  One was in relation to what the Chief Justice said, was the discharge of the gun.

BRENNAN CJ:   Yes, the squeezing of the trigger.

MR PAPAYANNI:   Yes, and two other judges said that it was the circumstances leading up to that.

BRENNAN CJ:   That is right.

MR PAPAYANNI:   Mr Justice Windeyer said that in relation to both crimes, that is the armed assault, and also the wounding - because in that section it says “assault”, so you must have “assault” as well - there was an element of mens rea in both crimes that had to be proved.

BRENNAN CJ:   Assuming there are mens rea, the question is then to define what is the act which has to be done voluntarily.  Well, you can define it if you like as the squeezing of the trigger.

MR PAPAYANNI:   That is correct.

BRENNAN CJ:   Or you can define it in some broader way such as going into the house with a mind to commit a robbery, with a gun that is loaded, being held in the hand.

MR PAPAYANNI:   No, your Honour.

BRENNAN CJ:   Why not?

MR PAPAYANNI:   If that were the situation, there are plenty of people that break and enter a house, go into the house and they lie and sleep there.  If a man comes at them with a pistol and they struggle with him, and that pistol goes off and it inflicts grievous bodily harm upon that person, that person is not guilty of this crime, in this section.

BRENNAN CJ:   Is that so?

MR PAPAYANNI:   The same situation would apply in relation to a number of other incidents that could occur in relation to that because there is no crime of break and enter.  Now, in this particular situation what was relied upon was what was said on page 16 in relation to Judge.  The situation in relation to both, of course, was both denied being there and both gave records of interview which were contested as previous decision in relation to this matter.  Both said that he was the only person there.  So, that created a difficulty also.  But without dealing with that at the moment, what he said there on page 16 in the record of interview was what the judge relied upon in relation to this direction that he gave.  What he said there:

I walked into a room and a bloke was lying in bed.  As I opened the door he lunged at me I thought I could see some shape of a weapon.  He grabbed me by the arm and then the gun I had in my hand accidentally went off.

And he also said in the next question, 42:

Because I just wanted to scare them.

Than question 51:

I said “Give us your heroin” he didn’t say anything just grabbed me arm.

And then later Judge said, on the same page:

“Yeah, I’ll do the interview but I’m on me own, right.  He jumped at me and the gun went off.”

So, you have a situation there where the gun could have gone off by reason of the fact of grabbing the arm and forcing the trigger back.  So, you have a situation there where it could be involuntary.  See, what was said in relation to this case - that is the only evidence of course in relation to this matter and substantially it was relied upon in relation to this matter what was said in the record of interview.

If you go to the situation of what the Court of Criminal Appeal said in relation to this matter on page 26, you get, about line 10:

In light of the views expressed in Ryan, it was open in law for the grievous bodily harm to be regarded as caused by the combination of acts done by the accused, in pursuance of the break and entry and robbery -

now, of course, this charge did not deal with robbery - did not deal with the robbery at all.  He was charged with a charge of break, enter and steal.  He was charged with the other charge of robbery but this specific charge did not deal with robbery -

and for it to be regarded as a voluntary act, if the unwilled discharge of the gun was in the contemplation of the accused.

So, the unwilled - there is an assault according the Court of Criminal Appeal, that if a person goes to a house with a gun and it is cocked and loaded and if he goes into that house, whatever happens there, in effect, whether it is - - -

GAUDRON J:   And grievous bodily harm occasions, it results, you have got connected with the grievous bodily harm.

MR PAPAYANNI:   No, but, see, what he is saying there, it was in the contemplation of the person.  The unwilled discharge of the gun was in his contemplation.

BRENNAN CJ:   That is right.  He picks up the gun; he releases a safety catch if it has got one; he loads it; he holds it in his hand; he goes in in a situation which is fraught with the prospect of sudden movement because he proposes to brandish it to scare people, and with that in contemplation somebody then does move suddenly and the gun goes off and the question ‑ ‑ ‑

MR PAPAYANNI:   No, he goes further than that, he said he bumps him.

BRENNAN CJ:   Well, however it might be.

MR PAPAYANNI:   You see, in Ryan’s Case it was totally different.  The situation there was the substantive offence; the incidental offence of wounding - - -

BRENNAN CJ:   It is not a question of substantive and incidental.  The question is was the voluntary act in that case the act of pulling the trigger when he had the tie in his mouth.

MR PAPAYANNI:   Yes, it was the act causing death in that case - - -

BRENNAN CJ:   The act causing death.

MR PAPAYANNI:   - - - which is totally different.

BRENNAN CJ:   And the act causing death was, on one view, no more than the pulling of trigger.  On another view, it was everything that went in association with the brandishing of the gun and the pulling of the trigger.

MR PAPAYANNI:   Yes, but in Ryan’s Case there was an admission - plea to manslaughter and the Court held there that was sufficient to show that there was a voluntary act in relation to that matter.  Now, in this case you do not have any such situation.  In Ryan’s Case there was a presentation of the gun which could be an assault, which does not apply now, of course.  There was an act, obviously dangerous to human life, which is not part of murder now but the Court held that that act was an act obviously dangerous to human life - the presentation of the gun - and in the circumstances where it was loaded and cocked and the person also was to be tied up.  In those circumstances it was totally a different situation to here because the wounding, the act causing death, was a situation where the gun was presented at the person.  Here, there is no evidence of any gun being presented at the person.  The only evidence is that the gun was not causing it to go off which was not the voluntary act of the person, himself.

So, you get a situation here where it says this offence is sufficient if you prove a break and enter and that is all, plus the fact that the person has got a loaded revolver and during that period of time that he is in the house someone - - -

GAUDRON J:   And they advert to the possibility that it will go off.

MR PAPAYANNI:   And he is aware of that, yes, and it is in his contemplation, but there cannot be any assault.  See, if a person is asleep in the house - when Judge goes into the house and somebody is asleep, has he assaulted - - -

GAUDRON J:   But you do not have to deal with assault.  You have to deal with grievous bodily harm - inflicts grievous bodily harm.

MR PAPAYANNI:   Yes, but if this is correct and you do not need to prove that situation in relation - if that was an assault as his Honour said - and there was no assault incurred, it was a wrong direction, but he took away from the jury the fact that it needed to be a voluntary act.  He took away from them by saying that in relation to - all he needed to have was in his contemplation that the gun might go off and that was an assault.  Now, that could not be an assault on a person who was asleep at the time.  You have that situation.  You have the different situation in relation to being a substantive offence needing these elements of the crime to be proved.

In Ryan’s Case you do not have the substantive offence.  You have to have the substantive offence of armed robbery to be proved.  You only have to prove that the wounding was incidental to that and the act causing death was in the course of that incident that came about which was a totally different situation to the one appearing here.  So, in Ryan’s Case it was pursuant to the armed robbery.  Here, it was not pursuant to the break and enter because there was no offence of break and enter.  It was an element of the offence just like stealing, that you have to prove that by showing it was a willed act.  There was no direction at all in relation to that.

Of course, at the bottom of page 26, the court says:

The issue of voluntariness (and causation) specifically did not arise on the way the defence pursued its case.  More relevantly, however, the directions given concerning the way each accused had in his record of interview asserted the shooting to be accidental, or unintended, accorded with Ryan.

It had no relation to Ryan at all because in Ryan’s Case there was an action of presenting the gun at a person in circumstances where it was well within the contemplation of the person that it might go off and the fact that you present a gun to a person and you are close to him and it goes off, well then, you cannot say, “I didn’t intend to wound him”, but you do not have that situation here.  You have to have a situation where it was a deliberate act aimed at the person who suffered that injury and that is not the situation here.

You have got the different situations which the Court of Criminal Appeal set out and one of those was that the bumping of the accused’s arm causing the gun to fire was a voluntary act.  Now, that could not be, in my submission.  You have the situation where, in this particular case, you have two records of interview in which each says that he fired the gun.  Now, it was essential in this case that the jury be directed as to who fired the gun.  It was not sufficient to say that there was a common purpose in relation to each, that they both went there - they knew one had a gun - and the situation was that it was within their contemplation that the gun might go off and therefore anything that happened in relation to that would be the responsibility of both. 

It was essential in relation to this particular crime that the actual person who fired the gun - let us say they say it was Judge - they would have to show that Judge, from what was said in this case, fired the gun and the other person was an accessory to that.  It was not the situation that you could rely on what was within the contemplation of each.

BRENNAN CJ:   Yes, thank you, Mr Papayanni.  We need not trouble you, Mr Keleman.

It is a question of fact whether the act causing death or, as here, the act of causing grievous bodily harm, consists merely of squeezing the trigger or a wider concatenation of acts.  The case raises no new issue of principle.  Moreover, as there was no application for redirection at the trial, this case would not have been a suitable vehicle for further consideration of Ryan v The Queen (1967) 121 CLR 205. For these reasons, special leave will be refused.

Adjourn the Court to a date to be fixed.

AT 12.26 PM THE MATTER WAS CONCLUDED