Krakouer v State of Western Australia
[2006] HCATrans 581
[2006] HCATrans 581
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P14 of 2006
B e t w e e n -
JEREMY TROY KRAKOUER
Applicant
and
STATE OF WESTERN AUSTRALIA
Respondent
Application for special leave to appeal
GUMMOW J
KIRBY J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 26 OCTOBER 2006, AT 9.37 AM
Copyright in the High Court of Australia
MR D.J. ROSS, QC: If the Court pleases, I appear for the applicant. (instructed by Aboriginal Legal Service of Western Australia (Inc))
MR K.P. BATES: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions for Western Australia)
GUMMOW J: Yes, Mr Ross.
MR ROSS: If your Honour please, this was a homicide case and the central issue of this application is on the question of causation in fact and in law. The Court of Appeal in this State found that the judge was wrong in his direction on causation and that would come as no surprise because the evidence of an expert nature was given by Dr Margolius. The evidence of Dr Margolius is set out in the judgment of her Honour Justice McLure at pages 197 to 198 of the application book and at 197, line 39 Dr Margolius’s assessment of the act that was said to have been committed by the applicant was that it could have caused the death. So there were two things that had taken place to the victim. The first one was that a man called Scott Colbung had hit the victim under the chin with a mallet.
GUMMOW J: We are aware of the extremely unpleasant violence that is involved here.
MR ROSS: That is right, and he was moribund.
KIRBY J: The actual words were “he was already dying”.
MR ROSS: Yes.
KIRBY J: But, in a sense, as the Book of Common Prayer says we are all dying throughout our life. In the midst of life we are with death. Therefore, the issue, it seems to me, is whether the test that was applied by Justice Brooking in Franklin is the correct test, that when another event happens which, in Justice Brooking’s words, make a significant contribution to death, then though already dying, if a significant contribution is made by picking up to – or pick a piece of wood and smashing it in the head of the person, that that significant contribution to death is also to be regarded as a cause of the death.
MR ROSS: Yes, it would be so if that were the evidence. With respect, it was not. Dr Margolius said it could have caused the death. It could have caused the death, and that is repeated on application book 197, line 39, and that is as far as it got.
GUMMOW J: What do you say about Justice McLure on page 200, paragraph 80?
Dr Margolius’s uncontradicted and unchallenged evidence was that the blow to the chin (and fall) could have caused the deceased’s death and that the blow to the back of the head could have caused his death and that the injuries caused by both blows together produced that result . . . But whether or not either or both were sufficient causes, it’s clear from Dr Margolius’s evidence that the injuries inflicted by both blows were at least life threatening and together resulted in the deceased’s death . . . On any view of the evidence, it was clearly open to the jury to conclude that the blow to the back of the head made a significant or substantial contribution to the deceased’s death.
MR ROSS: With respect, that is not supported by the evidence though, not supported by the evidence. The best that Dr Margolius got to was that the act of the applicant could have caused the death. That is the best she could get to. It was clear that the blow that was earlier given by the other accused was going to cause the death fairly soon. Now, if there be no evidence, apart from the fact that the act of the applicant could have caused the death, then there are two matters arise, one of fact and one of law and, with respect, President Steytler got it correct when he worked out that it had to be an operative and substantial cause of death. He came to the conclusion, we say correctly, that the learned trial judge was wrong in his directions to the jury. Well, that is as far as it goes and we say that the President was correct.
HEYDON J: That is not in contest.
MR ROSS: Not in contest.
HEYDON J: The question is whether the proviso was correctly applied, is it not?
MR ROSS: Yes, that is it. Now, there are a couple of aspects to the proviso, your Honour, and those are these. With respect, the President, as did the other judges, fell into the same error as did the learned trial judge because, having come to the conclusion, properly so, that the act of the applicant must be an operative and substantial cause of the death, they then simply make the assertion, yes, but it would have accelerated the death, or it is likely to have caused the death, and that is the fault of it. That is, the application of the proviso by the Court of Appeal falls into the same error as did the judge at trial.
Now, with respect, there is a more wicked difficulty about the application of the proviso and that is this, that what is apparent from the application book is that there is a serious procedural unfairness that operated during the trial, serious. The position was this, and I take this from the application book, of course, that counsel for the applicant at trial had run the argument based on the evidence of Dr Margolius that the applicant could not be convicted of homicide, and that is referred to in the application book page 190, line 20 in the judgment of the President.
Now, thereupon, having run the trial on the basis that the applicant was not guilty of homicide, there was then a ruling by the learned trial judge to say bad luck, and that ruling is referred to in the decision of the President at page 190, line 12.
HEYDON J: Are you saying that the case should have been taken away from the jury at the close of the prosecution case?
MR ROSS: I say it should have been, but I am concerned now with the matter of the procedural unfairness in the trial, because if the position be this - if I have it right, your Honour. Dr Margolius said it could have been a cause of death. That is therefore not operative and substantial.
HEYDON J: Do not accept that.
MR ROSS: Cannot be. It is not a cause as a matter of fact. It is not a cause as a matter of law.
GUMMOW J: You have a distinction in your Code, do you not, between wilful murder and murder?
MR ROSS: Yes.
GUMMOW J: What is the distinction, because in this case the charge was wilful murder, but the verdict was ‑ ‑ ‑
MR ROSS: Yes, it was wilful murder. He was convicted of murder. The difference is a matter of intent.
GUMMOW J: That is what I thought, yes. In the light of what you have just said, is it accurate as it is put at page 223 in your opponent’s submissions at paragraph 21:
The applicant’s acquittal of wilful murder was due to the jury giving the applicant the benefit of any doubt as to whether he intended to kill the deceased, rather than to do the deceased some grievous bodily harm. That acquittal cannot be a basis for inferring that the jury would have had a reasonable doubt as to the effect of the medical evidence, which evidence was recounted by the trial judge.
MR ROSS: I want to be a bit careful about the time that I have left. In fact, there is a definition of “grievous bodily harm” in section 1 that says likely to cause serious injury or likely to cause death.
GUMMOW J: Yes.
MR ROSS: So the fact that the jury acquitted him of wilful murder may have meant that he did not have the requisite intent. It could have been a merciful finding because they found the co‑accused not guilty of wilful murder too, and there was no doubt that what the co‑accused did really caused the death. That was the inspiration to the death.
KIRBY J: So even though your client picked up the piece of wood and violently struck the deceased on the back of the head twice ‑ ‑ ‑
MR ROSS: Yes, once or twice.
KIRBY J: - - - and within a matter of minutes the deceased was in a coma and was subsequently pronounced dead, that that does not matter? It is irrelevant. It was not open to the jury to conclude that it amounted to the offence.
MR ROSS: In fact, the only evidence of it was the evidence of Dr Margolius and she said it could have caused the death, not that it did or that it accelerated it or it had anything to do with the death. It was a possibility.
HEYDON J: She said he was already dying, by itself it would have added to his problems.
MR ROSS: Yes.
HEYDON J: To say that something could have been the cause of something else does not entail the proposition “but it did not”.
MR ROSS: No, and it does not entail the proposition that “it did”. So you see, how I put it, your Honour ‑ ‑ ‑
HEYDON J: It entails it as a possibility.
MR ROSS: Yes, possibility, no doubt about that, possibility, but it has to be ‑ ‑ ‑
HEYDON J: The jury had more evidence to go on than just a few phrases from Dr Margolius. They had 11 witnesses who described your client hitting the prone man, some of them said twice.
MR ROSS: I am not trying to excuse the act. What I am saying is whether or not, as a matter of law, you are entitled to say that if it could have caused the death and it added to his problems and the act was conceded – or not conceded, but proved by other witnesses, whether in fact that did cause the death or did accelerate the death was not ever the subject of any evidence at all.
I was on the matter of the question of the proviso, your Honour, and what I say about that is this, that the counsel for the applicant had run the idea that it may have been grievous bodily harm, but that of itself did not entitle any verdict of homicide, using a neutral term. Then the judge made the ruling that he did, which is referred to at page 190, line 12, which is, in effect, the same sort as the direction that he gave saying “If it could have caused the death, in effect, it did cause the death and that is how I am going to instruct the jury”. So the real trouble ‑ ‑ ‑
HEYDON J: That is not correct.
MR ROSS: Well, your Honour, I will take you to it.
HEYDON J: That is not what it says on page 190, lines 11 to 19.
MR ROSS: Well, have I not got it right?
HEYDON J: They could be satisfied.
MR ROSS: Forgive me if I have got it wrong. Here we are. Did I say 190? Yes, 190, line 12 the judge says this. In answer to the applicant’s counsel at trial about causation he says:
“In deference to the submissions . . . and cause of death or possible cause of death in this case, I foreshadow I will be directing the jury to take a common sense approach to the cause of death and if they find there were multiple injuries, each of which alone could have caused death, they could be satisfied each was a cause of death.”
HEYDON J: They could be satisfied, not they must be satisfied.
MR ROSS: No, no, I am not saying they must. It is not a matter of strict liability, but if it could have caused death is one thing, if it would have caused death is another. “Could” is different from “would” in all sorts of legal settings, every sort of legal setting. What I say about it is, as a result of that, counsel for the applicant had to give away the idea that the applicant was not responsible for the homicide ‑ ‑ ‑
KIRBY J: But we know how the matter developed ‑ ‑ ‑
MR ROSS: Yes, that is right.
KIRBY J: - - - and the acceptance in the Court of Appeal that he accepted the judge’s ruling and did not press the objection. We appreciate this.
MR ROSS: Yes, yes, and what I say about that also, just to complete the aspect, forgive me for repetition, but, with respect, the Court of Appeal applied the proviso using the same technique that they had criticised the trial judge for, saying if it could have caused the death, in effect, therefore we will apply the proviso. If the Court please.
KIRBY J: The difficulty with your theory is it postulates that you can only have one cause.
MR ROSS: No, I am not saying that at all, your Honour.
KIRBY J: I mean, the fact is that you can have multiple causes and two heavy blows on the back of the head of a person, violent heavy blows, can cause death, can contribute, can materially contribute.
MR ROSS: With respect, your Honour, you seem to be falling into the same error that the Court of Appeal fell into. Please forgive me for saying that.
KIRBY J: Not really. I am suggesting you are falling into the error. We are not going to get into a slanging match here, Mr Ross.
MR ROSS: No, no, because the position is this. The expert evidence was given by Margolius. If Margolius says “I have examined the deceased. I find that the act of the applicant” not did cause death, but “could have caused death”, that is not sufficient.
GUMMOW J: We have heard that several times, Mr Ross.
MR ROSS: If your Honour please.
GUMMOW J: Thank you.
KIRBY J: You remember the last time you appeared before me, Mr Ross, in a case and do you remember the sentence that was imposed in that case?
MR ROSS: Yes, 26 with a 20.
KIRBY J: These sentences look to be rather light sentences in all the circumstances. I know that this is not a sentencing appeal, but it is brought to my mind by the last time we had an encounter.
MR ROSS: It is a shorter sentence than was given to Mr Colbung.
KIRBY J: Yes.
MR ROSS: He got life with an eight, we have got life with an 11, your Honour please.
GUMMOW J: Thank you, Mr Ross. We do not need to call on you, Mr Bates.
This application raised an issue of causation. The deceased had been gravely assaulted by another offender, one Scott Colbung. The deceased was described as “already dying”. At that point the present applicant for special leave struck the deceased twice on the back of the head with great violence. It was open to the jury to conclude that the supervening blows significantly contributed to the death of the deceased. The correct test appears to be that stated by Justice of Appeal Brooking in R v Franklin (2001) 3 VR 9 at 28. That was the test applied here by the Court of Appeal.
We are not convinced that a further examination by this Court of the evidence would result in any different outcome. The legal issue ultimately is whether the Court of Appeal had erred in applying the proviso now found in section 30(4) of the Criminal Appeals Act 2004 (WA). That relevantly states:
even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Having regard to what this Court said in Weiss v The Queen (2005) 80 ALJR 445 and to the evidence at the trial, we do not believe that there would be reasonable prospects of success were leave to be granted. There was no substantial miscarriage of justice as expressed in section 30(4) of the 2004 statute.
Special leave is refused.
AT 9.59 AM THE MATTER WAS CONCLUDED