King v The Queen

[2011] HCATrans 249

[2011] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M27 of 2011

B e t w e e n -

TRENT KING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 SEPTEMBER 2011, AT 12.03 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear with my learned friend, MS C.A. BOSTON, on behalf of the applicant.  (instructed by Balmer & Associates)

MR G.J.C. SILBERT, QC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

GUMMOW J:   Yes, Mr Croucher.  You need an extension of time, I think.

MR CROUCHER:   Yes, we do.

GUMMOW J:   Is that opposed, Mr Silbert?

MR SILBERT:   No, your Honour.

GUMMOW J:   Then you have that extension.

MR CROUCHER:   Thank you, your Honour.  The special leave question as we see it is whether the principles that apply to a failure to leave manslaughter adequately or at all in a murder trial, as explained by this Court in Gilbert and recent cases, apply to a case such as the present where dangerous driving causing death was not adequately left in a case of culpable driving. 

The errors in the directions on dangerous driving causing death were twofold and were fundamental.  Firstly, the trial judge directed that it was sufficient that there be a risk, or a real risk of mere harm or hurt, whereas the authority of De Montero, which was decided after the trial, makes clear that there must be a considerable risk of death or serious injury.  That is the first error. 

The second is that her Honour told the jury that in contradistinction to culpable driving causing death, which requires the driving be such as to merit criminal punishment, her Honour expressly directed the jury that that was not the case in relation to dangerous driving causing death, yet De Montero also makes that point that that is a requirement of the directions for dangerous driving causing death.

BELL J:   It might be one thing if the trial judge had not directed that the requirement of the alternative involved conduct of a vehicle such as to attract criminal punishment, but to positively direct that the alternative count did not have that character might be thought to have very significantly weakened the seriousness of the alternative count and your point is this was a case which you submit was capable of being seen as a relatively borderline culpable drive.

MR CROUCHER:   Indeed, we say that the threshold for dangerous driving causing death was reduced almost to a vanishing point, given the issues that were fought.  The respondent of course accepts in his submissions that the directions were diluted.  If this applicant had been acquitted of culpable driving, but convicted of dangerous driving death there is no doubt but that his appeal against the conviction for dangerous driving death would succeed because of these errors, because the threshold was placed far too low. 

The respondent says, in the same way that it was said before Gilbert v The Queen, that because there is a conviction for culpable driving it follows that the jury have properly reasoned and there is nothing to worry about.  But, as I say, in a murder trial, if an acquittal on error had been made in respect of the directions on manslaughter, say, for example, the issue or intention in a murder/manslaughter trial and an error of this order were made, then Gilbert would say that the following analysis applies:  firstly, there has been a wrong decision on a question of law; secondly the only question then is whether the proviso applies, and the analysis that the Court, in the joint judgment of your Honour Justice Gummow and the Chief Justice, and also in Justice Callinan’s judgment was to the effect that the question to be asked then is it clear or inevitable that a jury properly instructed in the circumstances would inevitably have convicted of murder, is there a viable case for manslaughter. 

The rationale is that juries make their findings of fact in the context of the verdicts that they are asked to return, the questions of law that they are asked to consider and it is said that, particularly in an age of concern for victims of violent crime, it cannot be assumed a mechanistic approach.  So too here, of course, we have advertising every day of the week about the dangers of driving too fast or affected by drugs or alcohol, or whatever it might be, and there is a grave concern of course naturally for the victims of this sort of behaviour.

BELL J:   Here you had driving that, if one looks at the determination as being based on the ‑ ‑ ‑

MR CROUCHER:   Negligent head.

BELL J:   Negligent driving might not be seen as at the high end of that scale, but you had two deaths and that was something that you would say might have inclined a jury to take a serious view and not to be content with an alternative that was seen to have no substance to it.  That is your point.

MR CROUCHER:   Indeed, it is.  No speed here.  The speed limit was 80 kilometres an hour - he was doing 70 kilometres an hour.  No alcohol, no bad lead‑up driving.  There was evidence about ingestion of cannabis, that was the real issue in the case, yet the jury we are told returned a verdict on the negligent head rather than the drug affected head.  It was barely a case of culpable driving.  It was more than apt to a viable alternative, dangerous driving causing death and it should have been left properly.

GUMMOW J:   What do you say about the Court of Appeal’s treatment of these matters at 22 and 23 on pages 110 and 111, particularly paragraph 23, I suppose.

MR CROUCHER:   We, with respect, obviously disagree.  His Honour there speaking for the majority has not, with respect, appreciated the extent to which the directions have been diluted or the threshold has been diluted, and to say that it was highly improbable the jury would not have first considered the applicant’s guilt or innocence of the actual charges in accordance with the directions given to them before considering the alternative, well there is a few things to say about that, your Honours.

Firstly, it is a standard direction given to juries that when there are alternatives that you go to the upper end first, but of course it is up to a jury how they go about their task, and as we understand it, part of the point of the reasoning in Gilbert and the cases that follow it, is that because juries consider their findings of fact in the context of the legal questions they are asked to consider, those findings of fact can be affected by those questions.

So that here – and when you consider the presumption of innocence of course the jury is starting on the presumption that nothing has gone wrong, and there are three options open - acquittal, dangerous driving causing death, or culpable driving.  To say that a jury would have considered culpable driving causing death shorn of, devoid of any consideration of the comparison with the directions on dangerous driving causing death, in our respectful submission, is simply unrealistic.

In fact, her Honour the learned trial judge, in her directions, which we have set out in our written submissions at AB 132 and 133, and particularly on 133, her Honour directly invites the comparison.  Her Honour says, towards the top of 133:

There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence.  First –

Then her Honour repeats the error by way of contrast, “the risk of harming others” as opposed to the “high risk of death or serious injury” that is required and, secondly, repeats or makes the fundamental error where she positively says you do not have to be satisfied that it merits criminal punishment, whereas it does for the purposes of culpable driving.  In our respectful submission, it is to turn on its head to reason as their Honours have at paragraph 23.  Just two more things, your Honours, briefly ‑ ‑ ‑

GUMMOW J:   I think we might hear from Mr Silbert at this stage, Mr Croucher.

MR CROUCHER:   All right.  If the Court please.

MR SILBERT:   If the Court pleases, there is no dispute that the direction in relation to dangerous driving causing death did not comply with De Montero which came after it, and there is no dispute that the defects in the charge in relation to dangerous driving causing death are those identified by my friend.  The respondent’s position can really only be that the judge clearly charged the jury at page 4 that:

the alternative charge of dangerous driving causing death which is a statutory alternative to culpable driving causing death, so it is not on the presentment . . . you do not have to concern yourself with the alternative charge unless you acquit the accused of culpable driving.

She repeats that in a direct form at page 41 of the appeal book:

This means that you only need to consider it if you find the accused not guilty of culpable driving causing death.  If you find the accused guilty of culpable driving causing death you do not need to make a determination of whether he is also guilty of dangerous driving causing death; it is an alternative.

So one assumes that the jury complied with that direction and that there is no disputing that there is evidence capable of satisfying the elements of the primary counts on the indictment.

BELL J:   As to the first of propositions, it is clear that that was the approach, I think, that the Court of Appeal took.  As to the second, plainly there was evidence upon which it would be open to the jury to have found the principal counts made good.  Equally, it must be said, Mr Crown, within the range of possible verdicts and a verdict on the alternative count might be thought to have been open having regard to the matters that Mr Croucher has pointed to in a real sense.

MR SILBERT:   In a real sense, I agree.

BELL J:   That being the case, it does rather seem as though the Court of Appeal might have taken the view that the thrust of the remarks in Gilbert were not applicable in a case such as this.  What do you say about that?  Why would not the reasoning apply equally?

MR SILBERT:   They must have taken that approach or the Gilbert approach would have followed in this instance.  Here the points of distinction between the elements of the particular offences are not necessarily analogous with the murder/manslaughter alternative.  That has to be the submission of the respondent, and the same reasoning should not apply on the basis that the elements are different and that one sequentially would start with the culpable counts on the indictment before going to the question of the alternative of the dangerous driving causing death.

So the submission has to be that it is not pari passu with that distinction in that case, and that the approach here did not deprive the applicant of a possibility of acquittal in respect of the count of which he was convicted.  Now, if the Court pleases that has to be the submission because otherwise it follows ineluctably that it is pari passu with murder/manslaughter and the same reasoning would follow.

GUMMOW J:   Mr Silbert, are we right in assuming that this case falls for decision before the changes made to the criminal appeals structure in Victoria?

MR SILBERT:   Yes, your Honour.

GUMMOW J:   So the new provision which alters the proviso situation, that does not apply here?

MR SILBERT:   No.  I think that is right, your Honour.  I believe that is right.  This occurred in 2005 with a trial in September 2008.  That is correct.  If your Honours please.

GUMMOW J:   Yes, we do not need to hear you in reply, Mr Croucher.  There will be a grant of leave in this matter on the ground indicated in the draft notice at page 127.

MR CROUCHER:   If the Court pleases.

MR SILBERT:   If the Court pleases.

GUMMOW J:   Would this be a half‑day matter?

MR CROUCHER:   Yes, your Honour.

GUMMOW J:   The Court will adjourn to reconstitute.

AT 12.17 PM THE MATTER WAS CONCLUDED