Katarzynski v The Queen

[2006] HCATrans 11

[2006] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S475 of 2005

B e t w e e n -

KIRSTAIN WILLIAM KATARZYNSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 11.13 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR G.A. BASHIR.  (instructed by Mark Rumore)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Game.

MR GAME:   The application is out of time.  May I proceed to put the submissions?

GLEESON CJ:   Yes, go ahead.

MR GAME:   I want to spend my time addressing the Court on two aspects of the application – they are obviously the two main ones.  The first concerns the equation, as it were, by the Court of Criminal Appeal of a loss of self‑control in section 23 of the Crimes Act with loss of reason.

GLEESON CJ:   Where do we most conveniently find that, Mr Game?

MR GAME:   In the Court of Criminal Appeal’s judgment, if I took your Honour to page 190, but I will have to take your Honours to some of the passages in the learned trial judge’s summing‑up.  Page 190 is a reasonable place to start.  You see in paragraph 54:

The gravamen of the first complaint . . . was the notion of a loss of reason.

May I say this, that “loss of reason” is a phrase that is found in the old law, and that is for the reason that in the old law provocation was seen to trump malice aforethought, and we see that in cases such as Van Den Hoek.  I certainly do not have time to take your Honours to that at this time, but the second reason is that in the legislation under consideration in cases such as Parker it spoke about the loss of the power of self‑control, and loss of self‑control in the heat of passion.

Now, before I take your Honours to the directions that the trial judge gave, may I just paraphrase something that your Honour the Chief Justice said in a case called Chhay (1994) 72 A Crim R 1, which is on our list. Your Honour said this ‑ and I am sorry to be reciting your own authorities here, but just these words, your Honour:

The kind of loss of self‑control that is here in question is not something that results in a state of automatism.  Rather it is something that results in intentional homicide, the conduct of the accused, and the intent with which that conduct occurred, being attributable to the accused’s emotional response to the provocation.  The very fact that we are not dealing with absolute loss of self‑control, and that questions of degree are involved, raises a difficulty –

and then your Honour goes on to consider that case, which was a very different case than this.  I should say also this, that lest it be said against me that there is a qualification in paragraph 55 which would warrant dismissal of this application because of the use of the word “detached” in the fourth line, the idea of loss of self‑control to the point of loss of reason is approved in other New South Wales authorities, and we have cited them.  There is no need to take your Honours to them but Peisley (1990) 54 A Crim R 42 is the main one. But for the second reason that when you go to what the trial judge said in this case it goes far beyond talking about, as it were, “detached rational analysis” ‑ ‑ ‑

GLEESON CJ:   Just before you go further, I would like to understand a little better than I do at the moment the role of provocation in this case.  I know what the appellant did.  What was the defence case and how did provocation come into it?

MR GAME:   Well, the defence case was that he pulled the gun out in fear and that it went off as a flinch reaction in his case.  So, insofar as fear was involved fear may go to provocation, but that was not his case in the primary sense.  But can I say this, your Honour, that the jury asked a specific question directed both to provocation and to reckless indifference to human life, so it is not as though the jury – and there was no doubt that on the Crown case the deceased acted in a highly provocative way to the extent of abusing and assaulting by headbutting the applicant.  It arises on the Crown case principle whereas the reckless indifference issue arises on the defence case.  So, except insofar as fear is involved, and fear may be relevant and Van Den Hoek suggests that it is, provocation was not put in a primary sense as part of the defence case.

May I go then first to the very last thing – this is at page 13 - and I am picking, and it may be said against me I am picking selectively - but the very last thing at page 13, you see in paragraph 3 that was a document that was given to the jury after they had asked for a redirection ‑ ‑ ‑

GLEESON CJ:   Just a minute.  I am missing page 13.

HEYDON J:   It was provided in a loose form, was it not?

MR GAME:   What if I tear mine ‑ ‑ ‑

GLEESON CJ:   No, it is all right.  This is the one with the handwritten alteration.

MR GAME:   Yes.  It is those words:

ie acting under a temporary loss of reason, and not simply acting in anger or revenge.

Now, I would just pause also to mention there, of course, provocation is usually heightened forms of anger and revenge but be that as it may that is the final form.

Now, if I may take your Honours, and again somewhat selectively, to some other parts of the summing‑up where this language is used.  Directions on provocation relevantly started at the bottom of page 111 and the sort of language I am talking about appears at the top of 112, but if I could just refer you to one of them, and there are a number.  At the bottom of page 114 we see the kind of language that we have in mind.  It is that sentence that says:

As I indicated earlier a lack of self-control is something more fundamental than acting in anger, it is in effect a loss of reason, the inability to judge actions and make rational and considered responses.

If your Honours please, there is no way in which an accused could possibly succeed on provocation if they had applied the principles correctly that had already been put to them.

May I also mention that back at page 112 towards the bottom of the page, fear, as it were, was written out of the picture because of his Honour telling the jury that they would have already rejected that on self‑defence, and that is about two-thirds to three-quarters of the way down.

At page 150D your Honours will see the jury question and you will see the jury question is a complicated question, to say the very least, because it asks for directions on provocation, intoxication, and how they relate to reckless indifference to human life.  I would not have thought any more difficult question had ever been asked by a jury, but anyway.  The directions that we are talking - and again I am being selective – but at the bottom of page 152 we see “he lost his reason” and you see it says:

It doesn’t mean that he was provoked in the normal way we think of provocation -

Well, in fact, there are cases that suggest that you use provocation in the ordinary sense that you do understand it.  Top of page 153, the same:

you have lost your ability to reason -

Again, bottom of page 154:

so far lost his ability to reason -

and then at 155:

that he had not lost his reason -

and again at the bottom of page 157:

he lost his reason, he lost his ability to control himself -

Now, as I say, when one speaks about a loss of - the appropriate way to approach a loss of self‑control, in our submission, is in the language of the statute which is a loss of self‑control which does not mean uncontrollable.  It is measured against what the ordinary person might do, which is so far lost self‑control as to have formed an intent to kill or cause grievous bodily harm.  We say that that is an important question.  It is a question that arises squarely in this case and it warrants a grant of special leave.

May I turn to the second question which concerns the direct ‑ to say the directions on reckless indifference to human life, voluntariness and causation were complex in this case is an understatement, but may I say this, that where I am heading on this reckless indifference to human life in the context of this application is this, that ultimately reckless indifference to human life was left on the basis of, as it were, an involuntary or reflex discharge of the firearm and, for the purposes of this application, let it be assumed that there may be sufficient evidence to leave that, but that is a case that was never put by the prosecutor, never argued, never raised by anybody until the summing‑up when such directions were given and that, in effect, wiped the defence’s case.

HEYDON J:   It was raised by the judge several times, was it not, before the summing‑up?

MR GAME:   Yes, but in a different way.  If you look at page 27 of the application book, and this is the point that the Court of Criminal Appeal, in our respectful submission, did not grapple with, which is if you look at the top of page 27 and this is before the prosecutor addresses, his Honour is – and I might say that Murray only came to the attention of the court after counsels’ addresses which had only just recently been handed down by this Court but at page 27, line 5, what his Honour is contemplating is pulling back the act causing death from the deliberate discharge of the firearm and, as it were, looking for another act, but the prosecutor said no, he was content with a deliberate shooting, and the reckless indifference to human life that is contemplated there, which was neither case but a deliberate discharge “in the vicinity of the deceased”, which is a different concept altogether.  That is how it stood at that point.

When the prosecutor came to address, in his address the prosecutor put as an alternative proposition at the very end of his address - it is at the bottom of page 44 - intentional discharge of the firearm amounting to, in effect, reckless indifference to human life and that is it.  So the cases are conducted on the basis of either guilt in the context of deliberate discharge of the firearm, defence case there was no deliberate discharge of the firearm.  That is how the parties conducted the case and their addresses.

When you come to the summing‑up, and again there are written directions that need to be considered as well, but when you come to the summing‑up at pages 93 and following - now it is not necessary for the purposes of this application to go through the minutiae of how the act causing death was pulled back from the deliberate shooting of the firearm, but what happened then was that we see at 94 what is being posited towards the bottom of the page is the notion that the act causing:

death of the deceased was not deliberate but was unintended and involuntary such as a reflex action -

If you look at that whole paragraph, what it means is‑ and you look at the top of the page - that what is being posited now is the possibility that the act causing death is the presentation of the firearm.  That is what is being contemplated here and the jury are being asked to make a choice which, we say, is quite unrealistic for a jury to make, between a composite act, as it were, and the deliberate pulling of the trigger. 

Then when you get to page 98 you see what has been no part of the case.  You see that now at page 98 the accused can be found guilty of murder even though he - this is at about point 6:

never intended to cause the deceased’s death and even though when the gun discharged he was not intending to fire it.

GLEESON CJ:   Actually, the gun discharged three times.

MR GAME:   Yes, your Honour.  I know that it sounds extraordinary but it is to be remembered that the jury specifically asked a question about this issue and what was being put was guilt on the basis of an acceptance of the accused’s own version and that is how the judge left it to the jury.  Now, if you then go to page 123, you can see that towards the bottom of the page he can be found guilty even if the shooting was “a result of a reflex action”.  So he can be found guilty of murder on the basis of a reflex action.

Now, the point about it for the purposes of this application and if we were granted leave we would want to argue that Murray creates complexities that should not be introduced into the criminal trial because how could a jury possibly make a decision of the kind of distinguishing between taking out the weapon and the presentation and discharge of the firearm?  My point is this case from first to last was conducted on the basis that he could only be found guilty of murder if it was a deliberate shooting.  Reckless indifference was only introduced to the extent of an intentional deliberate discharge of the firearm.

I have neglected to mention something to you.  When the judge gave the jury some, as it were, interim directions between the Crown’s address and the defence address, which appear at page 46, he was still talking about a deliberate discharge of the firearm.  So my point is that by the time we get to the jury’s deliberation they are, in effect, being invited to convict on the accused’s own version or a version of the accused’s own version of murder when the cases have never been put on that basis. 

So we say to the first question that we raised that that raises a question of considerable importance in the criminal law, the idea of loss of reason.  We say the second point is a point of general importance but it is also important in the administration of justice in this case because of the way in which it was left but we do say ‑ and it is in effect our third special leave point - that it is far too complicated for a jury to leave them, as it were, making a decision about what is an act causing death based on distinguishing between, as it were, a complex series of acts and a deliberate discharge of the firearm and it makes a lot more sense to identify the act which it clearly was, which was the discharge of the firearm.

HEYDON J:   Mr Cusack never advanced any such argument to the trial judge, did he?

MR GAME:   No, that is true, but he did say at one point that as far as he was concerned there was insufficient for reckless indifference.  He said a strange thing in that sentence.  He said “I do not cavil” and then in the next sentence he said ‑ ‑ ‑

GLEESON CJ:   He cavilled.

MR GAME:   Then in the next sentence he said there is not enough to go on – I cannot remember where it is, but it is there somewhere.  Your Honours would have seen it.

GLEESON CJ:   I have seen that, yes.

MR GAME:   I do not mean to be disrespectful at all, but I am not sure that he realised that what had happened was that he had just lost the case.  The Crown says, “This is all ridiculous, there are three shots”, but we say the jury specifically asked a question about both provocation and reckless indifference to life and either way you look, whether it is to provocation or to reckless indifference we have serious arguments to put.  That is in brief what I wish to say on this application.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Game.  We do not need to hear from you, Mr Lamprati.

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

MR GAME:   If the Court pleases.

AT 11.32 AM THE MATTER WAS CONCLUDED