Knight v The Queen

[1991] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M61 of 1989

B e t w e e n -

PETER GEORGE KNIGHT

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 3.08 PM

Copyright in the High Court of Australia

Knight 1 15/11/91

MR D. WRAITH: If the Court pleases, I appear for the

applicant. (instructed by the Legal Aid

Commission)

MR W.B. WOINARSKI, QC: If the Court pleases, I appear with

my learned friend, MR D.G. JUST, on behalf of the

respondent in this matter. (instructed by the

Director of Public Prosecutions)

MASON CJ:	Mr Wraith.
MR WRAITH:	This is an attack upon the unsafeness of a

verdict. It is also an attack upon the analysis of

that issue by the Court of Criminal Appeal, and the

attack made upon the Court of Criminal Appeal's

approach is, one, the majority got it wrong

factually. In this particular instance, the

learned Chief Justice misdirected himself, and I

will draw the Court's attention to that in so

doing. And Mr Justice Nathan, whose judgment is

the principal judgment, did not refer to the

alternative hypotheses referred to in the judgment

of Mr Justice Crockett, and I will be frank with

the Court, of course.

MASON CJ: Well, we naturally expected you would be.

MR WRAITH:  Yes. I rely heavily upon the judgment of

Mr Justice Crockett.

MASON CJ: Yes. I was going to ask you, really, do you say

any more than Mr Justice Crockett said in his

dissenting judgment?

MR WRAITH:  Of course, I rely heavily on it and I say that

the learned Chief Justice misdirected himself - I

was going to come to that - and, in any event, I

say that Mr Justice Nathan, if the Court says

anything about that judgment - is that he got it

wrong but I want to add one thing if I may and I

have informed my friend about this, lest the Court

be in any misapprehension because of the way in

which he analysed the evidence. The second shot

came very shortly after the first in the struggle

and that Mr Justice Crockett's characterization of

the nature of the struggle was correct but it

should be emphasized and I can draw the Court's

attention to the evidence, because it is very short

and it was omitted by His Honour Mr Justice Nathan,

indicates a very short return to the position and

struggle continuing before the second shot went

off, to give rise, it would submit, to the

foundation in fact which Mr Justice Crockett points
to and the alternative hypotheses that His Honour

refers to.

Knight 2 15/11/91

DAWSON J:	Why was it not a question for the jury?
MR WRAITH:	I know Your Honour is going to say that but, of course, that would have been alive to the mind of
His Honour Mr Justice Crockett. It is not to be
forgotten that he has read all the material. It
was argued; it was referred to and he is, can I put
it this was with respect, the most senior and
respected member of our Court of Criminal Appeal.

BRENNAN J: Well, what is your answer to Justice Dawson's

question?

MR WRAITH:  My answer, having prefaced it, is to say that an

analysis of the evidence would only lead to the

conclusion that was arrived at by

Mr Justice Crockett. No jury could go further.

DAWSON J:  Why could they not conclude that there was an

intent to kill at this point?

MR WRAITH:  In circumstances where there was a verdict of

manslaughter in relation to a separate incident;

in circumstances where, if one - - -

DAWSON J: Having killed one man, albeit accidentally, he

then pursues another man across a room, if I

remember rightly, with a firearm which - - -

MR WRAITH:	He "approaches" is a word I would use.
DAWSON J:	He approaches, perhaps to use a neutral word, and

fires the gun again.

MR WRAITH: It is fired, not fired. It is fired. It fires.

DAWSON J: Well, it depends which view you take about it,

but having killed one you would think that perhaps

he might be a little more careful if the first was

just an accident.

MR WRAITH: But, Your Honour is not overlooking, with

respect, I trust, in that analysis that there is

clear evidence of a struggle; the gun pointing in

both instances at the stomach in the end. In the

first struggle it was deflected and a shot was

fired. No charge was laid in respect of that

incident. That is why I am at pains to make it

clear, and I could take the Court to the passage of

evidence that I seek to in Mr Justice Nathan's

judgment and the passage of evidence in the other

material which is very short to indicate that very

shortly after that first shot was fired the second

shot discharged.

BRENNAN J: But what an astonishing thing it is. Here is a

man with a gun who accidentally shoots somebody;

Knight 3 15/11/91

who is lying there on the floor; people milling

around, and what does he do?	He goes into the
other room with the gun looking for more.	I mean,
that is an astonishing .....

MR WRAITH:  Yes. That is, with respect, Your Honour's

version of the events.

BRENNAN J:  No, I am not putting it as my version. I am

putting it to you that if that is the fact, is it

not a fact which the jury can look at as most

eloquent, of the one issue that is for a matter of

inference and that is intent?

MR WRAITH:  Yes, but there is no evidence from the first

incident to, of course, indicate an intention to

kill.

BRENNAN J:	I am not suggesting there is.
MR WRAITH:	No.  And then you have a situation - as

Your Honour, of course, realizes, this was an

attack by a number of youths upon the group with

which the applicant was involved in a hall.

BRENNAN J: Well, there would be all sorts of questions of

self-defence, provocation, whatever, but that is

not your point.

MR WRAITH:  My point is it then becomes a struggle with the

gun.

BRENNAN J: But your point has to go as far as saying that

on the whole of the evidence the jury could not

properly draw an inference of intent to kill.

MR WRAITH:  Yes, that is it.

DAWSON J: And you would say, "Where is the evidence on

which they could draw that inference?", and the

only answer to that must be that you can have one

accident but not two, in the circumstances. Is

that a sound foundation for drawing an inference?

MR WRAITH: Well, I suppose that is one way of putting it.

In fact, that is the way I put it. There could

have been, in the circumstances that prevailed

here, two accidental discharging of the firearm;

one which would have resulted in a verdict of

manslaughter by unlawful and dangerous act because

that was open here, and here, as

Mr Justice Crockett characterized it, a struggle.

What His Honour meant was, I suppose, in his

observations, if he really wanted to kill him he
could have pointed it somewhere else than the

stomach initially. And when you come to look at

the second incident, the jury could have found an

Knight 15/11/91

attempt was to get it back to that position, but no

more, and it discharged injuring him in the groin.

BRENNAN J: What is the issue of principle?

MR WRAITH:  The issue of principle is that there remains

then an unsatisfactory verdict. A man has been

wrongly convicted of an offence for which he should

not have been convicted, on the evidence, and I
rely upon a section of the Judiciary Act,

section 35A(b) and, in particular:

whether the interests of the administration of

justice, either generally or in the particular

case, require consideration by the High Court

of the judgment to which the application

relates.

So, I put it this way, that a thorough examination

of the evidence would give credence to the opinion
of Mr Justice Crockett and that this Court should

not leave a conviction stand in those circumstances

where the evidence points that way. A man will

remain convicted of a serious offence where he

should not have been. It is as simple as that. I

regret I cannot make it any more complicated and it

is with deference that I come to the Court with a

simple proposition, but that is it.

DAWSON J: His Honour Justice Crockett put his judgment on

the basis that there were rational competing

hypotheses and treated the case as the equivalent

of a case of circumstantial evidence. Is that

right?

MR WRAITH: There was no evidence of any statement, as I

recall it, by the applicant of his intention.

DAWSON J:  So that it was a matter of inference and in that

sense it was circumstantial. The evidence - - -

MR WRAITH: Yes, because, as I recall it and I am subject to

correct, his record of interview could have been

characterized as constituting false denial in

certain respects or even lies, but other than that,

that could be a lie as to whether it was recklessly

discharging a firearm or whatever but it would, in,

I hope, in a strict sense, be a case where the jury

would have to infer intent from the circumstances.

DAWSON J: That being so, they would have to exclude all

other rational hypotheses? a strict sense

MR WRAITH: That is so. And I am at pains that the Court

understand that it is submitted equally forcefully

that the learned Chief Justice, who did not go into

the facts, seemed to be saying it was for the

Knight 5 15/11/91

applicant to establish before that court, his

court, that the competing hypotheses were equal

and, that, it is submitted, is the error. If I

need to establish that and if I need to go to

Mr Justice - - -

DAWSON J: In answer to Justice Brennan, you would say,

"Well, look, it is not a matter of saying a jury

couldn't come to that conclusion", one could.

MR WRAITH:	They possibly could.
DAWSON J:	"But they couldn't exclude the competing

hypothesis that it was without the necessary

intent". That is the way you really put it?

MR WRAITH:  Yes, that is it. But if I need to take the

Court to the actual evidence, of course, I would,

and it is in the main in Mr Justice Nathan's

judgment, but I want the Court to understand that

he did not consider that.	He did not consider the
other rational competing hypotheses.	He just

dismissed them and talked about the firing of a gun

in circumstances of frightening and so on without

considering, as Mr Justice Crockett did, those

other discrete hypotheses.

One is tempted to argue in this Court that he had overlooked, perhaps, that the intention that is

relevant, it is an intention to kill and not an

intention to commit serious bodily injury that the

jury must focus on, or an intention to do something

less: frighten or to - - -

DAWSON J: That is right, because it must be an intention to

kill.

MR WRAITH: Yes, and His Honour does not go into - - -

DAWSON J: Attempted murder excludes the other, yes.

MR WRAITH: With respect, His Honour did not go into that.

BRENNAN J: When you speak of "competing hypotheses", there

is always a competing hypothesis in the case of

culpable homicide; there is either intention or

there is not. Now, in the absence -

MR WRAITH:  An intention, if I may interrupt.

BRENNAN J: There is always the relevant intention to kill

or there is not, and to say that a jury can convict

on evidence of murder where there is a question of

inference of intention is necessarily to say that

the evidence that was there was sufficient to allow

them to exclude beyond reasonable doubt the

hypothesis that that intention did not exist. Is

Knight 6 15/11/91

there any distinction between the tests of

competing hypotheses and what a jury can do on the

evidence?

MR WRAITH:  That may be so but in this particular case you

are more confined, it is my submission.

BRENNAN J: Well, what your case is, as I understand it, is

that on the evidence that there was in this case

the jury could not safely convict?

MR WRAITH: That is right.

BRENNAN J: Well, I can understand that.

MR WRAITH:  And we can go about it in various ways and I am

happy to say, if I can respectfully, in this Court,

I am in good company in the dissenting judgment - strong company, if I may say so - because what has

happened in the other two cases: they have got it

wrong, I say with respect, either factually or, in

the case of the Chief Justice, erred in principle

and that this Court should intervene even though

questions of fact may have to be determined.

MASON CJ: Well, I think your message has been transmitted

and received. Mr Woinarski?

MR WOINARSKI:  If the Court pleases. We submit in this

application that there is no question of principle

raised at all and nor is there any reason

demonstrated as to why this Court should interfere.

The Full Court, being an appellate court in

considering an unsafe and unsatisfactory ground of

appeal, was required to consider the evidence

itself and determine whether a jury acting

reasonably should have entertained a reasonable

doubt, and we would refer to this Court's decision
in Morris v Reg, (1987) 163 CLR 454 and other cases

which are set out in our outline: Chidiac v Reg

and Whitehorn v Reg.

In considering the evidence, the appellate

court was determining questions of fact and we

would refer the Court to what Your Honour

Mr Justice Dawson had to say in Morris v Reg at

page 475 to 476 - - -

DAWSON J:	I was in dissent in that case.
MR WOINARSKI:	Yes, you were in dissent, Your Honour, but

Your Honour was quoting on this principle that this

Court does not become involved in questions of fact

and it does not seem that Your Honour was in

dissent in that regard. Some of the other

judgments specifically refrain from making comment

Knight 15/11/91

on cases such as Liberato and Raspor but

Your Honour, certainly at pages 475 to 476 set

out - - -

MASON CJ: But, unfortunately, that opinion has not been

generally shared, has it? That is the difficulty

you face: you selected the judgment that appeals

to you most because it supports your case but there

are other judgments that take a different view.

MR WOINARSKI:  I am not actually selecting the passage that

supports my case, what I am really doing,

Your Honour, with the greatest respect, is

referring the Court to a suitable reference where a

member of this bench has set out a number of the

relevant authorities in that regard and that is the

only reason I am choosing that passage, not that it

is one that necessarily - - -

MASON CJ: Just coincidental that it is a judgment that

happens to support your case and others do not?

MR WOINARSKI: Well, it does, Your Honour, but it sets out

the authorities that support that proposition and

they are authorities of this Court.

DAWSON J: That judgment appeals to me too, but whilst this

Court should not enter into questions of fact as a

general rule, when there is a plain case of the
processes going wrong, there is justification in

the individual case for interfering and it is said

that this is a plain case.

MR WOINARSKI:  We would not argue with that as a

proposition, Your Honour, but that is what this

really comes down to, with respect. In the end,

all that can be said for the applicant's case, if

we may say it, is that one judge has said that the

jury got it wrong, whereas two judges and a jury

have all said that on a full review of the

evidence, the jury having heard all the evidence

and heard all the arguments, and the judges having

reviewed the evidence themselves -

DAWSON J: Where is the evidence to support an intention to

kill for it must be an intention to kill that the

evidence supports?

MR WOINARSKI:  Your Honour, that really -

DAWSON J: Why, for instance - and I will ask that question

too - is there any more evidence of an intention to

kill on the occasion in question than on the first

occasion when a manslaughter verdict was returned?

MR WOINARSKI: Well, Your Honour, so far as the manslaughter

verdict is concerned, there were a number of

Knight 15/11/91

defences that were open at that stage, including

provocation, and it is not clear from the judgment

of the court of Criminal Appeal exactly the basis

upon which the manslaughter was there. It may have

been because of provocation, reducing the intention

to kill in that case to one of manslaughter, one is

not sure. But the facts are, and which the jury

were entitled to take into account, in our

submission, that there had been an initial

altercation which had resulted in a gun being

fired - and I use the words carefully - the gun

having been fired and a person having been

apparently seriously injured although it might not

have been apparent to the applicant at that stage

that that person was dead. He then, on the

evidence, as is set out in the decision of

His Honour Mr Justice Nathan, sets about isolating

out the second victim, Salvo, and comes to a

situation where he is pointing the gun at the

stomach of Salvo, as is described in the evidence set out at page 19 of the application book in the decision of His Honour Mr Justice Nathan, having

been isolated out, if I may put it that way, just

above the middle of the page:

"As he was coming towards you, where was the

gun pointing to?---To me stomach, sort of

thing.

At what pace did he come towards you?---Pretty

quick.

Having tried to move to one side and finding he was still coming at you, what did you

do?---It was so quick I just - I tried to move

away and as soon as he got close enough I

grabbed the gun.

At the time you grabbed the gun where was it

pointing?---Towards the stomach and I pulled

it away.

When you pulled the gun away, was the movement

resisted?---Yes.

How was it resisted?---Well, strength ..... He was pointing it towards me like that, right, and I tried to pull it towards that way ... so

it wouldn't shoot me.

When you did that, what did he do?---A shot went off, right, and we were struggling and he

was trying to point the gun toward me again

and then - - -

What were you trying to do?---I was trying to

keep it away from me and I was just

Knight 9 15/11/91

struggling, just - and it continued toward me

again so I pulled it down, and that's when the

next shot went off."

And at page 20, the last two questions:

"At the time the gun was brought back to your

stomach, were you still trying to keep it away

from you?---Yes.

When it came back to your stomach, what did

you do again?---Tried to push it down."

Even if it was only a short period of time, and it

is not disputed what our learned friend, Mr Wraith,

had to say about that in the course of his

argument, it is quite clear that having known the

type of weapon that he had with him and its ability

to do serious injury to someone, the applicant

isolated out the victim, Salvo, missed on the first

occasion when trying to shoot in the stomach and

then brought the gun back into a similar position

on the second occasion and fired the gun.

MASON CJ:  Is it correct that the Crown conceded that it had

not been shown that the first shot was fired with

an intention to kill?

MR WOINARSKI:  Your Honour, that is so.

MASON CJ: What distinguishes the second shot from the first

shot?

MR WOINARSKI:  The circumstances, Your Honour; the overall

circumstances, and the continuation of the gun back

into that position. The gun having gone off once

and having missed at that stage, the applicant is

not content at that stage, he insists on bringing

the gun back into that same position where he is in

a situation where he can, in fact, fire the gun at

the stomach of Salvo.	Now, it may well be that the
applicant was lucky in not having any charge

arising out of the first shot at Salvo, but one

still has to consider that second shot in the light

of what occurred on the first occasion and the fact that the applicant was determined to return the gun

to that position and for no other apparent purpose,

it was open to the jury we would submit, other than

to discharge the gun in that area of the applicant

and if the jury accepted that, they were entitled

to accept that he had at that time an intention to

kill Salvo.

DAWSON J: What do you have to say about the passage

appearing at page 31 in the Chief Justice's

judgment?

Knight 10 15/11/91

MR WOINARSKI:	Which passage in particular?
DAWSON J:	In the end I think that such an argument -

that is the defence argument

can only succeed if the appellate court can be

satisfied that the two inferences, one

consistent with guilt, the other consistent

with innocence, are equally open ..... I am

fortified in the view which I have formed that

the two inferences were not equally open -

and that where the circumstances are -

equally open must, I think, be a rare case.

Now, is that right?

MR WOINARSKI:  Your Honour, the first passage:

In the end I think that such an argument

can only succeed if the appellate court can be

satisfied that the two inferences, one

consistent with guilt, the other consistent

with innocence, are equally open.

DAWSON J: It is not a question of equality, it is a

question of whether the evidence must raise a

reasonable doubt, is it not?

MR WOINARSKI: Well, Your Honour, we would submit that what

His Honour was simply saying in the words "can be

satisfied" is really expressing in another way the

various tests that have been laid down by this

Court so far as an unsafe and an unsatisfactory

ground is concerned in the various cases. I think,

Your Honour Justice Dawson, in Whitehorn, used the

phrase, "the jury must have entertained" and that phrase has been used subsequently in other cases.

Your Honour the Chief Justice in Chidiac used the

phrase, "whether the jury, acting reasonably, must

have entertained a doubt". Your Honour

Justice Dawson in Chidiac again used that same

phrase:  "the jury must have entertained a doubt",

and we would simply say that all His Honour is

doing there is identifying in different words the

same test, that an appellate court, in carrying out

its own independent evaluation of the evidence, can

only interfere with the jury's verdict if they
themselves or the individual members of that court
are satisfied that the jury must not have been able
to reject the innocent hypothesis.

It is not simply a question of whether the

court would have come to a different view, it is
whether a reasonable jury must have come to a

Knight 11 15/11/91

different view and we would submit that there is

nothing wrong with the expression used by the Chief

Justice there. The rest of the passage:

For an appellate court, which has not seen the

witnesses or heard the evidence given, to

conclude that two inferences are in those

circumstances equally open must, I think, be a

rare case.

And, indeed, we would submit that in many ways

those sentiments were expressed by this Court

itself in Morris' case where it is going to be a

rare case where the court has not had the benefit

to be able to assess the witnesses itself.

Admittedly, there will be cases, and Morris was

such a case, where the court, on assessing that

evidence independently, is going to come to the

view that the jury could not have rejected the

innocent hypothesis, if I can put it that way.

But it seems, with respect, as a matter of

common sense to us that it wili be rare cases where

such situations will occur simply because very

often the credibility of a witness depends upon

seeing how witnesses give their evidence, the

manner in which they give their evidence and,

particularly, the fashion or manner in which they

answer questions in cross-examination. Now, all

those things it is difficult for an appellate court
to give some account for in assessing whether or
not the jury was acting reasonably in the
determination it did, but as a matter of common

sense, we say, it is going to be rare where the

appellate court will interfere simply on that

basis.

His Honour then, perhaps, was finding some

comfort in the fact that those persons who were

present in the trial did not see any reason for

suggesting that the matter should have been taken

case to answer so far as the Crown not being able	away from the jury on the basis that there was no
to exclude the innocent hypothesis.

BRENNAN J:	Mr Woinarski, we are not favoured with a copy of the judge's charge so I presume there is no
challenge being made to the direction being given by the trial judge. We are not favoured with the
evidence which is said to be not sufficient to
establish the relevant element, but we are left only with the judgments in the Court of Criminal
Appeal. Now, doing the best we can with that, what
is there, if you can tell us, of the evidence which
might tend to show that there was ill will between
the accused and the deceased? That is the first
point.

Knight 12 15/11/91

The second point is what were the lies or

untruths which were told in the record of

interview? What other evidence was there available

from which the jury might draw an inference adverse

to the accused?

MR WOINARSKI:  Your Honour, in relation to the lies and

things, I am not in a position to be able to

amplify any further than is in the application

book - I am not in a position to, Your Honour.

BRENNAN J: Well, it is very unsatisfactory, is it not? We

do not know anything about the facts of the case;

we do not have the evidence and yet we are told the

evidence is not sufficient to support it.

MR WOINARSKI: Well, Your Honour, we are here, if I may - I

am not trying to avoid the question, but we are

here to answer the applicant's argument and if they

have not seen fit to present those matters to the

Court, it is very hard for us to, perhaps, be in a

position to answer them if they do not think they

are relevant to their argument.

BRENNAN J: Well, do you know anything of the facts relating

to the antipathy between the deceased and the

applicant?

MR WOINARSKI:  I can refer Your Honour to a passage on

page 17 in relation to that of the application
book, and I was going to do that. It is page 2 of

the judgment, page 17 of the application book.

Your Honour, perhaps if we start at the top of the

page:

On the evening of 30th September, 1987

the applicant and the organiser of a dancing school, one Walsh, together with three other

male cohorts and some - - -

BRENNAN J: We have read the judgments. This is the only

thing that you know about?

MR WOINARSKI:  Yes, Your Honour. Both victims - Salvo had

previously beaten the applicant in a fight some

months previously so there was antipathy.

MASON CJ: Mr Woinarski, can I put this to you: it seems to

me that in order to resist this application you

need to show that the Court of Criminal Appeal

conducted an independent assessment of the evidence

in accordance with Morris. Now, it may be said

that Mr Justice Nathan did that.

Mr Justice Crockett did but he arrived at a

conclusion different from the one that you contend

for.

Knight 13 15/11/91

MR WOINARSKI:  Yes.

MASON CJ: And I have difficulty with the Chief Justice's

judgment. Frankly, I find it difficult to

understand that passage in his judgment where he

refers to inferences being "equally open".

MR WOINARSKI:  The passage that Justice Dawson asked me

about?

MASON CJ: Yes, the passage that Justice Dawson referred to,

going over to the next page as well and unless you
can satisfy me on that I would find difficulty with
your submission that the Full Court has made an
independent assessment of the evidence in

accordance with Morris.

MR WOINARSKI: Well, Your Honour, may I just take you to the

passage immediately above there, the paragraph

immediately above on page 31:

In considering this argument, I am

satisfied that the evidence justified the jury

in finding that the applicant had the intent to kill. But that is not necessarily an end

of the matter.

If I may just stop there, that is really the very

test laid down by Morris and things like that.	The
mere fact that the jury could have found that
intention does not mean that the verdict can be
maintained. His Honour goes on:

The argument was in substance - and it was

very carefully presented by Mr Forrest - that

it was equally open to the jury to find that
the Crown had not excluded the possibility of

the lesser inference.

Now, I raise that, Your Honour, because when one

ties that in with the judgments of both

Mr Justice Nathan and Mr Justice Crockett, one sees

clearly that the Chief Justice is taking into

account the whole of the material that is being

placed before the appellate court, that there was a

great deal of going through the evidence and a very

careful presentation of the argument on behalf of

the applicant by_counsel then appearing for him,

Mr Forrest.

Indeed, Your Honour, in that regard, it is

perhaps of passing comment - I will just mention it

in passing - that the judgment was given the day

after the hearing. If Your Honours look at page 15

Your Honours can see that the date of hearing was

14 November 1989 and the date of judgment was

15 November 1989, so that there had been an

Knight 14 15/11/91

opportunity for Their Honours to consider the facts

overnight.

Now, we then come to the passage which

Your Honour the Chief Justice is troubled by where the Chief Justice says:

In the end I think that such an argument

can only succeed if the appellate court can be

satisfied that the two inferences, one

consistent with guilt, the other consistent

with innocence, are equally open.

MASON CJ:  Now, that is the applicant's argument he is

talking about there.

MR WOINARSKI:  Your Honour, with respect, we would not say

that is so. What His Honour is saying is:

such an argument can only succeed -

that is, the argument being that the verdict is

unsafe or unsatisfactory. That -

argument can only succeed if the appellate

court can be satisfied that the two
inferences, one consistent with guilt, the

other consistent with innocence, are equally

open.

MASON CJ: Well, that is what I was putting to you.

MR WOINARSKI: Well, Your Honour, unless the appellate court

is satisfied of that thing, then the unsafe and

unsatisfactory ground must fail, because unless the

appellate court comes to the view that the two

competing hypotheses were reasonably open to the

jury, then the appellate court cannot interfere with the verdict. That is really what it comes

down to, with respect. That is, we would say, as I

briefly took the Court to, simply another way of

saying or setting out the test as this Court has

and various members of this particular Court have

in cases such as Whitehorn, Morris and Chidiac.

And I am quite prepared to take the Court to the particular passages, but there is really no difference, in our submission, with saying - - -

MASON CJ:  I could better understand the Chief Justice's

judgment if, in fact, he had referred to the

evidence to which you have invited our attention at

page 19 but he does not refer to that evidence. He

arrives at his conclusion by reference to the

general proposition that is stated in the second

sentence in the last paragraph commencing on

page 31.

Knight 15 15/11/91

MR WOINARSKI:  I am sorry, Your Honour, I missed the last

passage that Your Honour just referred me to.

MASON CJ: What I was saying was that I could understand the

Chief Justice's conclusion more readily if, in fact, he had relied upon the evidence to which you

have invited our attention at page 19 but instead

of doing that he relies on the general proposition which is stated in the second sentence in the last

paragraph commencing on page 31.

MR WOINARSKI:  Your Honour, with respect, we would disagree

with that proposition. His Honour clearly says in

the first paragraph commencing on that page that he

is:

satisfied that the evidence justified the jury

in finding that the applicant had the intent

to kill.

And he then goes on to consider in his own way

whether or not the evidence still left open the

hypothesis consistent with innocence or the

alternative verdict which was being contended for

in a carefully presented case by Mr Forrest, and he

comes to the view that it is not open, on the

evidence. He then goes on, perhaps, to find some

comfort in that view by reference to the fact that

it did not occur to those appearing at the

trial - - -

DAWSON J:  I do not understand that, you see. That is the

last sentence which goes over the page:

I am fortified in the view which I have formed

that the two inferences were not equally open

in that sense by the fact that the trial Judge

was not invited at any stage to direct the

jury that it was not open to them to conclude

that the applicant had the intent to kill, as

he could have been asked if it was then

thought at the time of the trial that the two

inferences were in all respects equal.

But that has nothing to do with equality. It would

not be enough if the jury thought he probably

intended to kill, that that was the more probable

inference.

MR WOINARSKI:  Your Honour, what I understand the

Chief Justice to be saying or trying to say is that

there was no application made at the end of the

Crown case to take away the attempted murder charge

from the jury. There was, on the presentment, so

far as this incident was concerned, a charge of

attempted murder, a charge of causing serious

injury with intent and a further alternative of

Knight 16 15/11/91

recklessly causing serious injury. So that those

two alternatives to the main charge of attempted

murder were on the presentment.

Now, it seems that what the Chief Justice was

saying is that, "I have formed this view of the

evidence and that is the view I have formed after

carrying out my review, that the alternative being

submitted by Mr Forrest is not open, and that is

the conclusion I have reached and I am fortified in

reaching that conclusion, I find some comfort that

my conclusion is right." Not that, "I am going to

change my conclusion" or anything like that, but "I

find some comfort" because there was no application

to have the attempted murder taken away from the

jury.

DAWSON J: There could not be because there was evidence, you

could draw an inference and, as I understand it, no

longer in this State, no longer anywhere now - - -

MR WOINARSKI:	Doney, Your Honour.
DAWSON J:	- - - can you make an application that the case

be taken away from the jury on the ground that it

is dangerous to leave it them. But that does not

mean that when it comes to be reviewed on appeal,

the court cannot conclude that the verdict is

unsafe.

MR WOINARSKI: Well, Your Honour, if the view was, at the

end of the Crown case, that those two hypotheses

were equally consistent and no jury acting

reasonably could have adopted one rather than the

other, then there probably could have been a
"no case" submission, even allowing for Doney's
case because you would not have the necessary legal

element that the jury would be entitled to accept

one and reject the other. So that in law, the

attempted murder charge could not have been left to

the jury?

DAWSON J: Yes. Well, I doubt whether that is so, really.

I mean, there was evidence, there is no doubt about

that. It is just a question of whether it was

sufficient.

MR WOINARSKI: With respect, Your Honour, that is really

what it comes down to in many ways, with the

greatest of respect. The principle is clear, laid

down in Whitehorn, Morris, Chidiac; it is clear

that full argument and review of the evidence was

conducted before the members of the Court of

Appeal. In the end, the majority of the bench did

not disagree that the jury could only reach that

conclusion and what we really come down to, so far

Knight 17 15/11/91

as the applicant is concerned, is really an

argument based on fact and nothing else.

With respect to Members of the Bench, we do

not believe we can really take this matter much

further than that.

MASON CJ:  No, I do not think you can. You cannot,

Mr Woinarski. Now, Mr Wraith, have you got

anything in reply?

MR WRAITH:  Yes, I have a short answer to my learned friend

in relation to the taking away of the count. It is

not to be forgotten by this Court that provocation

was in issue here and let us say the evidence was

tenuous in relation to an intention to kill,

provocation being an issue, it could not be taken

away by the learned trial judge. In other words,

this matter could never be determined until

verdict.

BRENNAN J:	Why?
MR WRAITH:	Because the intention to kill would have been

there nevertheless and the jury arrive at a

manslaughter verdict by reason of provocation.

BRENNAN J: But why could the judge not say the provocation

never need arise in this case, the evidence just is

not sufficient to establish that element which is

essential to the establishment of the crime?

MR WRAITH:  No, he may have found there was a tenuous or a

slight amount of evidence but - - -

BRENNAN J: Well, sufficient to justify a jury in concluding

that. If there is not, then the case should not go

to the jury, should it?

MR WRAITH: Well, I am inclined to agree with Your Honour

but that might have been the justification for

counsel taking the stand - - -

BRENNAN J: That is a different matter.

MR WRAITH:  This is an answer to the proposition that the

Chief Justice seems to find important, that counsel might have taken that view.

MASON CJ: Yes, thank you, Mr Wraith. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

AT 3.48 PM SHORT ADJOURNMENT

Knight	18	15/11/91
UPON RESUMING AT 3.58 PM:

MASON CJ: Having regard to the form in which the judgments

in the Court of Criminal Appeal are cast, the Court

feels that it is bound to grant special leave to

appeal in this case, but I should add that on the

hearing of the appeal, the Court will require the

production of the full transcript of the trial.

The order will be therefore that there will be

a grant of special leave to appeal.

AT 3.59 PM THE MATTER WAS ADJOURNED SINE DIE

Knight 19 15/11/91