Ladd v The Queen

[2010] HCATrans 46

[2010] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D10 of 2009

B e t w e e n -

GODWIN LADD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2010, AT 10.05 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear on behalf of the applicant.  (instructed by Central Australian Aboriginal Legal Aid Service Incorporated)

MS N. ROGERS, SC:   If the Court pleases, I appear of behalf of the respondent.  (instructed by Director of Public Prosecutions (NT))

FRENCH CJ:   Yes, Mr Croucher.

MR CROUCHER: Your Honours, the first question is this on this application. It is submitted that the correct construction of section 156 and Part IIAA of the Criminal Code (NT) is that where on a charge of murder the prosecution fail to prove, or do not rely on, an intention to cause death, but do prove or rely on an intention to cause serious harm, the jury must also be satisfied that the accused was reckless as to causing death in order that murder be proved. Section 43AM(2) of the Code relevantly provides that:

If a law that creates an offence does not provide a fault element for a physical element that consists of a result or circumstance, recklessness is the fault element for the physical element.

Now, in circumstances where intention to cause death is excluded, it is submitted that section 156(1)(c) does not provide a fault element for the physical element of causation of death – the result. The reference in that same provision to an intention to cause serious harm cannot be described as relating to that physical element, that result - causation of death. Therefore, section 43AM(2) is engaged and recklessness, the default element as to the causation of death, must be proved in addition to an intention to serious harm.

Now, it is submitted that that construction is supported, perhaps in a negative way, by the existence of section 43ACA. There is, in section 156, to employ the words of section 43ACA, “no separate statement specifying the fault elements of the offence” such as those in, when you look at section 43ACA itself, as in section 174FA(1).

It is given as an example in that provision and you see when you look at section 174 how it is laid out with a heading “Fault elements” quite separately. Therefore, section 43ACA(3)(a) and (b) do not apply. Therefore that tends to support the view that section 43AM(2), the default provision, is engaged in section 156 in the circumstances described.

This construction is further supported, it is submitted, by the structure of the Code and the related provisions, particularly when comparing and contrasting with the manslaughter provision in section 160 and the murder provision in section 156. The manslaughter provision is in the application book at page 108. It has precisely the same elements as the murder provision, the first two paragraphs (a) and (b) are precisely the same, but then differs as to paragraph (c) which provides that:

the person is reckless or negligent as to causing the death of that or any other person by the conduct.

FRENCH CJ:   The construction adverse to you is encapsulated in, I think, the judgment of the Chief Justice paragraph [96] at page 111.  Is that correct?

MR CROUCHER:   Yes, it is.

CRENNAN J:   The Chief Justice makes the point there about the limits to section 43AM.

MR CROUCHER:   Yes, his Honour does.

CRENNAN J:   But it only applies if the offences themselves do not provide fault elements, and you face then subparagraph (c) of 156.

MR CROUCHER:   Yes, the argument turns on construing the legislation by saying that insofar as 43AM refers to a “physical element” and the result in this case, the result being death, the result is not causation of serious injury, then the default provision must attach to the causation of death.

FRENCH CJ:   Well, you either look at serious harm as a physical element to which intention is attached, or you look at (c) as defining an intention incorporating intention to cause serious harm, which attaches to the result, which is death.  That is the position taken against you, is it not?

MR CROUCHER:   That is right, but it simply cannot.  I mean the structure of the legislation is designed – the result is defined, the result is death and the serious harm can only be a superadded element, if you like.  The basic structure of the Code is that the default provisions apply in respect of results – and the prescribed result is death – and an element like this, this requirement of serious harm, must be in addition to the minimum requirement in respect of death, which is recklessness.

CRENNAN J:   That is the reasoning by which you get to section 43AM(2).

MR CROUCHER:   That is right, but I say, as well, that construction is supported by looking at the Code as a whole, particularly the relationship with the offence of manslaughter.  You see if the Crown’s construction or the court’s construction below is right manslaughter will be committed in circumstances where a person is reckless as to death, and that is right, but a person will be convicted of murder in circumstances where they do not necessarily have a recklessness as to death and, therefore, would not be guilty of manslaughter, but only have an intention to cause serious harm, which creates this disconformity or unfair overlap in the provisions, a potential blurring, if you like.

FRENCH CJ:   It accords with the pre‑existing law, though, does it not?

MR CROUCHER:   It accords to some extent with the common law ‑ ‑ ‑

FRENCH CJ:   Intention to cause grievous bodily harm – killing somebody with intention to cause grievous bodily harm – was murder under the Code.

MR CROUCHER:   That is right, but at common law, which his Honour refers to in his judgment under Crabbe’s Case, recklessness as to death or grievous bodily harm was also ahead of murder.  What we have here now under this new Code - this is what has changed.  Manslaughter now is recklessness as to death, not even grievous bodily harm.

So the threshold for manslaughter under the new Code provisions and interpreted in light of Part IIAA, the bar has been raised, the threshold has been raised and murder actually has been brought down slightly because if there is a difference between serious harm and grievous bodily harm, perhaps there may not be, but let us assume there is a slight difference, so that whereas before there was a stepped difference, now there is this blurring or overlap.

That is why I pointed in the summary of argument at the application book 199 to 200 to the passages from this Court’s decision in Wilson where the common law category of manslaughter, known as battery manslaughter, was declared as no longer to be part of the law and the scope of manslaughter by an unlawful and dangerous act was altered.  A majority of the Court said that the qualifier “really” in the concept of awareness of an appreciable risk of really serious injury, for the purposes of unlawful and dangerous act manslaughter at common law, should be removed for to leave it in would bring – to use their Honours’ words – murder with its intention to cause really serious injury as a minimum and common law manslaughter perilously close such that the distinction between murder and manslaughter may easily be blurred in the minds of a jury.

So too here, if under the Code, only an intention to cause serious harm is required for murder, yet manslaughter involves recklessness as to death – and recklessness means awareness of substantial risk, so very close to the common law test of foresight of probability – there is an obvious risk of blurring or overlap or disconformity.  The applicant’s construction, on the other hand, would remove that risk by ensuring that there is a sensible, rational, stepped process. 

Now, in Charlie v the Queen, which my learned friend refers to, a submission was made under the old Northern Territory Code that the provisions in section 31, the accident‑related provisions applied to murder in cases where there was an intention to cause grievous harm only was an issue, so that the Crown would have to prove both a foresight of possibility of death and intention to cause grievous bodily harm.

The Court split on the result, 3-2, on a submission obviously that is very similar to one that is being made here, but the important differences are these.  Firstly, of course, these are new and different provisions.  We must start again.  The Court often tells itself that you start with a new Code; that is the way you approach these things.  Secondly, manslaughter under the new Code requires, as I say, a higher level of culpability than it did in Charlie’s Case, and indeed as I said, the level of culpability at common law was very close to and in some ways greater than the culpability for manslaughter under this new Code.

As I say, murder under the new Code arguably requires a slightly lower culpability, such that this overlap or blurring I speak about was not an issue in Charlie.  The third aspect of Charlie was the logical consequence of his arguments was that an accused who lacked foresight of the possibility of death would be excused from all homicide liability, that is to say, not guilty of murder and of manslaughter.  So it was a very big ask, if you like, and Chief Justice Gleeson commented on that very strongly.  His Honour was part of the majority.  Justice Hayne, who was part of the minority, observed that point as well.

Here on the other hand, as I say, the applicant’s construction would not produce that result, but rather would have produced a far more rational method of attribution of criminal responsibility, so that at the bottom level, manslaughter by negligence as to death, manslaughter by recklessness as to death.  Up a step, murder by recklessness as to death coupled with an intention to cause serious harm.  So there is a step, and then the highest level of murder by intention to cause death.

CRENNAN J: But all of that ignores the plain meaning of section 156(1)(c). I do appreciate that in paragraphs 20 and 21 of your written submissions on page 200 that you attempt to address that argument, but there is nothing ambiguous or unclear about subsection (1)(c).

MR CROUCHER:   But it has to be interpreted in light of the general provisions.  In the general provisions – I am repeating myself, your Honour, but the general provisions require that there is a default provision in relation to causation – in relation to the result.

CRENNAN J:   You are raising the context argument in the face of plain words.

MR CROUCHER:   I raise the context argument to support the plain meaning that I say comes from the Code.  That is what I say.  Can I move then to the second ground, which is about the directions on the standard of proof.  The judge’s redirection, and therefore his directions on the standard of proof – it is respectfully submitted – were wrong within existing law for the following reasons.  Firstly, the answer to the jury’s question “What is the legal definition of reasonable in the context of reasonable doubt?” a question that juries often ask, and juries are often told “I cannot tell you” because this Court has basically put a prohibition on it, except in limited circumstances – should have been answered in accordance with this Court’s authority in Green at pages 32 to 33, where the Court said:

A reasonable doubt is a doubt which the particular jury entertain in the circumstances.

Thus the jury should have been told something to the effect that “A reasonable doubt is a doubt which you” – and perhaps inserting ‘as reasonable members of the community’ – “entertain having heard all the evidence in the case”.

As Chief Justice Martin recognised in the court below that is a view of Green’s Case accepted by Chief Justice King in Wilson’s Case; by Justice Johnston in Pahuja; by Justice Callaway in Chatzidimitriou.  His Honour accepted that there was a divergence of opinion amongst intermediate Courts of Criminal Appeal and individual judges on the courts but ultimately plumbed for the dissenting view of Justice Cox in Pahuja, who was in the same court as Chief Justice King in Pahuja.

That there is a divergence of that type is reason enough in this case to grant special leave, in my submission.  But there is also the question that the directions violated the principles in Green that a jury should not be directed in a way which sanctions their analysing or evaluating their own doubts.  Again the Chief Justice below preferred the minority approach of Justice Cox on this same issue which was in contradistinction to what Chief Justice King had said.  Yet it was plain from the jury’s question that they were analysing their own doubts.  That is why they were asking the question what does “reasonable” mean?  They had been out for some time in a case which was obviously finely balanced and the answer they got was not in accordance with Green.

There is also yet a third aspect to these directions and that is that the question of directing that it is not required that the Crown prove its case beyond all doubt.  Again the Chief Justice, it is respectfully submitted, in a very careful analysis of all the authorities, went through and pointed out that there were different approaches to this same question in light of Green’s Case.  Again it is submitted the better view is that that direction is inconsistent with the clear authority of Green and the Chief Justice and therefore the rest of the court were in error to conclude to the contrary.

Finally, there is the question raised as to whether despite the admonition in Green, the law in this country is out of step with the law in some other common law countries such as England, New Zealand, the United States.  Your Honour Justice Crennan has heard this argument recently put by Mr Carter in the matter of Cavkic, Clarke and Athanasi ‑ ‑ ‑

CRENNAN J:   Yes, I recollect that.

MR CROUCHER:   ‑ ‑ ‑ where juries are told the meaning of “beyond reasonable doubt” and they are given, usually, the word “sure” as a synonym and sometimes the word “certain” is used.  In the materials I have referred the Court to the transcript of the application for special leave which I mentioned a moment ago of Clark & Ors before your Honours Justice Crennan and Justice Bell on 11 December last year, where this issue was squarely raised.

As I say I respectfully commend to the Court the arguments that Mr Carter put on behalf of all three applicants, one of whom I appeared for, on that application including the criticisms of the justifications given by this Court in Darkan at paragraph 69 for what the Court in Darkan described as the Australian law’s “extreme and exceptional stand” on the prohibition of using words other than “beyond reasonable doubt” to describe the standard of proof.  In that application Justice Bell at lines 40 to 45 and 98 to 107, which is particular at page 353 of the materials, said this:

it might be thought a case in which there was some inadequacy, or suggested imperfection, in the trial judge’s directions on the standard of proof might be a more suitable vehicle than one where –

as in that case, the judge’s –

directions were in accordance with the principles as this Court has explained them –

meaning Green’s Case, and to paraphrase her Honour, in circumstances where the jury did not even ask any question about it.  All of that is this particular case, Mr Ladd’s case.  This jury did ask for assistance.  This jury did get an answer which, in my submission, is inconsistent with existing authority, Green, but in respect of which, as the Chief Justice pointed out below, there is a divergence of opinion as to how to interpret Green on this very issue on those three questions that I have raised, and as well it is also a perfect vehicle to consider not just those questions, but this other question about whether or not Green should be revisited in any event on the question of assisting juries with the meaning of “beyond reasonable doubt”, to consider this extreme and exceptional stand.

I have referred your Honours to Wanhalla, a decision of the New Zealand Supreme Court; very detailed judgments by each of the three members of the court where they refer to the approach taken in this country and to other jurisdictions and set out a very careful critique of the different views of these things.  The same can be found in other judgments and in a great deal of literature.  It has been obviously a matter that is getting around in academic thought for some time.

But as I say, the Australian jurisdiction is out of step with these other Commonwealth countries which have considered – Canada as well.  Canada since Lifchus’ Case, which I have referred to in the summary of argument, has taken a different approach about assisting juries more because they routinely ask what does it mean.  When they are struggling they want to know, they want some assistance.  Generally they are told very little, and on the times where judges do attempt to assist they often fall into error according to Green.

As I say, this judge clearly fell into error in accordance with Green, and in my submission, and in any event it is time to reconsider whether or not there should be a different approach.  Penultimately, I notice that even Justice Dixon when sitting as the trial judge in this Court in a matter that I have referred in the Argus Reports at page 348 of the applicant’s materials, is recorded as saying to counsel in argument that “it was incumbent upon them”, that is, the jury “to be perfectly certain”.  His Honour had a very strong view of what it meant, and that as well is consistent with some other things that this Court itself has said over the years.

CRENNAN J:   That does not contradict what Sir Owen Dixon said in Dawson’s Case, though, as I recollect it.  I think that is the name of the case.

MR CROUCHER:   Yes, Dawson is one of these series of cases where generally the admonition is “Do not do it, it is dangerous”.  But I have referred your Honours to Keeley v Mr Justice Brooking and other cases as

well where in Keeley’s Case where Chief Justice Barwick said that to be satisfied beyond reasonable doubt is, for the purposes of the law, to be certain.

FRENCH CJ:   Thank you, Mr Croucher, I think your time is up now.

MR CROUCHER:   Can I just say one final thing, your Honour.

FRENCH CJ:   One short thing.

MR CROUCHER:   That if the jury’s constitutional task is to decide whether or not a person is guilty, then why cannot they be told exactly what we as lawyers tell each other every day these things mean?  It is time to let them in on the secret.  It is very important in cases like this.  If the Court pleases.

FRENCH CJ:   Thank you.  We will not need to trouble you, Ms Rogers.

On 8 October 2008, the applicant was convicted of the murder of his wife, contrary to section 156 of the Criminal Code (NT). His appeal to the Court of Criminal Appeal was dismissed by a majority on 20 May 2009. He has applied for special leave on two grounds. He complains, first, that the trial judge should have directed the jury that if not satisfied that he had intended to cause his wife’s death, but satisfied that he had intended to cause her serious harm, it also had to be satisfied that he was reckless in relation to causing her death before a verdict of guilty of murder could be returned.

The second complaint is that the trial judge erred in his directions on the standard of proof by directing the jury (a) that it is not required of the Crown to prove its case beyond all doubt, and (b) directing the jury in a manner that suggested it should analyse any doubts it had in order to determine whether they were reasonable.

As to the matter of intention, the offence of murder is defined by section 156. A person is guilty of that crime if:

(a)the person engages in conduct; and

(b)that conduct causes the death of another person; and

(c)the person intends to cause the death of, or serious harm to, that or any other person by that conduct.

The Chief Justice held, Mildren J agreeing that the fault element for engaging in conduct under paragraph (a) is intention. The fault element for the resulting death of another is established in section 156(1)(c). That has two alternative aspects: an intention to cause death and an intention to cause serious harm. His Honour rejected the submission that there is an additional element, a requirement of recklessness, in the case of an intention to cause serious harm. In our opinion, there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal on that question of construction.

As to the direction on the standard of proof, read in the context of the repeated references to proof beyond reasonable doubt, the direction was sufficient to properly inform the jury of its task.  It was not compromised, when viewed as a whole, by the exclusion of a standard that would require the Crown to prove its case beyond all doubt.  Special leave will be refused.

MR CROUCHER:   If the Court pleases.

AT 10.29 AM THE MATTER WAS CONCLUDED