Lane v The Queen

[2018] HCATrans 86

[2018] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S308 of 2017

B e t w e e n -

PAUL IAN LANE

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 MAY 2018, AT 10.17 AM

Copyright in the High Court of Australia

MR S.J. BUCHEN:   If it please your Honours, I appear with my learned friend, MS G.E.L. HUXLEY, for the appellant.  (instructed by Legal Aid NSW)

MS W.J. ABRAHAM, QC:   May it please the Court.  I appear with my learned friend, MS H.R. ROBERTS, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Buchen.

MR BUCHEN:   Your Honours, can I commence by briefly setting the scene in relation to the error that occurred at trial.  The indictment is found at the core appeal book at page 2.  The appellant was charged with murder.  The incident occurred in the early hours of 16 September 2012 in Casino but he passed away some days later, on 24 September, at a hospital in Southport, which explains the date in the indictment.

The alternatives to murder that were left for the jury’s consideration were manslaughter by unlawful and dangerous act, and manslaughter by excessive self‑defence.  The written directions set out those alternatives out and that is found in the appellant’s further material, volume 2, at page 708.  I am sorry, I have not provided your Honours with time to read the outline of the argument.

KIEFEL CJ:   I am sure we can manage that as we go.

MR BUCHEN:   So at page 708 directions commence with general matters, on 709 it moves to legal elements of murder and then over the page, at 710, self‑defence is addressed at about line 22 and, specifically at paragraph 20, self‑defence operating as a partial defence is dealt with.  Then over the page at 711 written directions are provided in relation to manslaughter by unlawful and dangerous act. 

The trial was conducted in late 2014 and the verdict that the jury returned after some days of deliberation was not guilty of murder and guilty of manslaughter.  The appellant’s liability for manslaughter required proof beyond reasonable doubt that the appellant did an act causing the death of the deceased.  The offence creating – sorry, this is trite, but the offence creating provision which is contained in the joint book of authorities at page 6 behind tab 4 in terms directs attention to the act of the accused that caused death.

The precise identification of the act causing death had particular significance in this trial because it was not only the premise upon which consideration could then be given to the primary element of the offence, that is, the condition of the actus reus, but it also fed into each of the other elements that the jury had to consider, including when they came to consider the alternative verdict of manslaughter.  Those other elements are intention, self‑defence – so intention in respect of murder, did he have the intention to kill or cause grievous bodily harm?  In this trial it was the latter that was put.  Whether self‑defence arose ‑ ‑ ‑

KIEFEL CJ:   Do we need to rehearse all of this background?  Can we come straight to the issues perhaps?

MR BUCHEN:   Yes, your Honour.  The issue arose in the trial in an acute way because there were two falls.  The Crown Prosecutor alleged in his opening address that the act causing death was a deliberate blow or punch which caused the deceased to impact heavily with the ground.  That is the way the case was opened.  But Dr Little, who was the pathologist witness, gave evidence during the trial and her evidence appears to have caused a degree of surprise.  The witness had to be flown in and was interposed into the proceedings and while ‑ ‑ ‑

KIEFEL CJ:   In any event, her evidence caused the Crown to shift its case.

MR BUCHEN:   Yes, it did.  The complicating factor is that this witness pointed to two distinct areas of injury.  There were clearly two falls.  The history that had originally been provided to the pathologist was that there was a single fall causing the person to fall backwards onto the road.  That did not explain the constellation of the injuries.

KIEFEL CJ:   But her evidence is not in contention, is it?  We can just start with what her evidence was.

MR BUCHEN:   Yes.  And, if I can go directly to that, your Honour.  At page 525 of the second volume of the appellant’s further materials, line 30, cause of death is described as “A head injury”.  Then, what Dr Little does in the next answer, that starts at line 38 and goes over to line 8, is describe two different injuries that she noted.  It might be relevant to note at this point that the first injury that she describes would appear to be consistent with someone who falls backwards.  There was no skull fracture beneath the point of impact. 

Then, when the witness describes the second injury – at the top of page 526 – this is an injury that was related to a very significant skull fracture that went along the side of the deceased’s head and into the skull and across the back and base of the skull.  That is an injury that was caused by an insult to the left side of the head. 

The ultimate point that the witness reached – and that is significant because it was agreed between the parties that the second fall was one where the deceased fell backwards onto the road; there was no issue about that.  The first fall - both parties accepted in their closing addresses that the deceased had turned to face the road just before he fell, so the more ready explanation for an injury to the left side of the head was the first fall. 

A voir dire was conducted in relation to Dr Little’s evidence, at the insistence of the trial judge, and at page 534, after that voir dire examination had completed, the Crown Prosecutor finished his examination‑in‑chief and came to the critical issue – or did not come to the critical issue because his Honour then intervened at the end of the examination‑in‑chief and asked the critical questions.  You find those at lines 14 to 28, at page 534.

That was the way the evidence was left - overall, obviously a combination but either injury could have led to death on its own.  So, either injury attributable to each fall could have led to death on its own.  When the parties, later in the trial, talk about there being no issue about the evidence in respect of causation, what they mean is there is no issue that that is the evidence that Dr Little gave.

BELL J:   Was there any exploration of whether, accepting that the first injury was capable of being fatal, that having sustained the first injury the deceased could have stood up and regardless of events that followed after that, suffered the ultimate injury that was fatal.

MR BUCHEN:   There was no examination of that issue.  The judge in the summing‑up put to the jury from his own experience in conducting common law cases that that type of situation can occur, then he was asked to correct that aspect of the summing‑up on the basis that there was no evidence ‑ ‑ ‑

BELL J:   No evidence of it.

MR BUCHEN:   ‑ ‑ ‑ on the issue.  Does your Honour wish to have the reference to that?

BELL J:   No, the position is there was no evidence on that.

MR BUCHEN:   There was no evidence.  In the Crown Prosecutor’s closing address then, the case for the prosecution expanded.  The prosecutor now relied upon an act or acts and that became two discrete acts, that is, an act of the appellant causing death by reason of the first fall and an act of the appellant causing death by reason of the second fall.

The majority in its judgment, at paragraph 42, page 222 of the core appeal book, acknowledged in those first three lines of paragraph 42 that “the Crown case as left to the jury” relied on “two discrete acts”.  Justice Fagan in his dissenting judgment provided a more detailed analysis of the manner in which the Crown case expanded, and that can be found specifically from paragraphs 125 to 129.  I will just note that in paragraph 25 Justice Fagan specifically connected the expansion of the prosecution case with the surprise that was received from the evidence of Dr Little.

This change in the case clearly occurred late in the trial, during the Crown Prosecutor’s closing address, and it is the genesis of the defect in the trial and the error.  The closing address of the Crown Prosecutor where this occurred can be found in the appellant’s further material, specifically at pages 618 and 622 to 623.  There is just one aspect that I will take your Honours to.  It is at page 623, volume 2 of the appellant’s further material, at the top line on page 623.

What is happening here is that the Crown Prosecutor is describing for the jury what you can see on the closed‑circuit television.  There was closed‑circuit television footage that captured the entirety of the incident, another very important piece of evidence in the trial.  There he makes a very specific submission; that is:

The deceased takes six steps backwards –

this is preceding the first fall:

and the Crown says that there is a blow on the way, on that route –

that is an act that is relied on:

and his seventh step, if you look at it carefully, he appears to have turned and facing the road –

that is what I said before about facing the road:

facing away from the accused – fleeing from him.

Then a little bit further down he talks about the fall:

he goes to the ground –

He had opened far more tentatively on the issue, referring only to possible contact between the appellant and the deceased.  Now it had become a blow that could be observed on the closed‑circuit television before the accused moved forward on to the road and falls.  He then goes on to talk about the punch – blows or a punch – that he relies on in relation to the second fall, and that is found at specifically line 40 on that page.

Issue was joined in respect of both acts.  Justice Fagan was critical of the way that this issue developed in the trial at such a late stage and in such a haphazard manner, but issue was joined specifically at page 640 of the appellant’s further material.  At line 10 defence counsel poses to the jury the question whether they can be satisfied beyond reasonable doubt that there was a voluntary act by the accused, initially or on the second occasion.  Further submissions were put at pages 649 to 650 but I will not go to those now. 

Turning then to the summing‑up, the jury was directed that either discrete act of the appellant could found liability for murder or manslaughter.  Both the majority and Justice Fagan carefully analysed the summing‑up and there is concurrence that this case was put to the jury.  The majority deal with it at paragraphs 37 to 41, and there is a summary there of aspects of the summing‑up where further comments were made by the trial judge after defence counsel made it abundantly clear that issue had been joined in respect of this matter and then Justice Fagan deals with this at a number of points in his judgment. 

No direction was given to the jury that it had to be unanimous as to the actus reus of the offence and that is the core of the error.  The unanimity direction that was given, the formal unanimity direction that was given, if anything worked the other way in that it invited the jury to reason through different routes to conviction to rely on different parts of the evidence.  That direction can be found in the core appeal book at page 21 to 22 and specifically at line 30 on page 21 the jury is told that:

you may rely upon different parts different parts of the evidence . . . whatever route individually you arrive at ‑ ‑ ‑

KIEFEL CJ:   The Court of Criminal Appeal was unanimous in their view that the ‑ ‑ ‑

MR BUCHEN:   There was an error. 

KIEFEL CJ:   There was an error in the directions.

MR BUCHEN:   Yes, your Honour.

KIEFEL CJ:   The question here is whether or not the nature of the error in relation to the trial processes was such that the proviso could not be applied.

MR BUCHEN:   Yes, your Honour.  That completes what I was going to say about setting the scene and I will move directly to that issue now.  The first submission that is made is that the manner in which the case was left for the jury’s consideration and the effect of the error meant that – or enabled the jury to return a verdict of guilt without being unanimous as to the actus reus of the offence.

BELL J:   The significance of that in a sense is reflected by the differing views.  On the one hand, the joint reasons at paragraph 57 said the omission to give the unanimity direction did not mean:

that the jury were not correctly directed about the elements of the offences of murder and manslaughter ‑

And one can understand on one view the force of what their Honours say.  There were no complaints, as I understand it, about proof of the elements and the significance of excessive self‑defence and the like.  But when one then turns to Justice Fagan’s analysis, his Honour points out that in the absence of requiring the jury to be satisfied unanimously as to the voluntary act causing death, the issues of excessive self‑defence or whether the act was an unlawful and dangerous act obviously differed as between the first and the second ‑ ‑ ‑

MR BUCHEN:   Yes, your Honour.

BELL J:   ‑ ‑ ‑ and to that extent the directions suffered more than merely the omission to require unanimity.  There was a flow‑on effect.

MR BUCHEN:   It had a resonance right through the deliberation process, which is the point that Justice Fagan makes very forcefully.  I would note in respect of paragraph 57 of the majority’s judgment which your Honour just referred to, that last sentence is significant.  The majority acknowledged that the appellant was entitled to have the jury determine unanimously whether he was guilty in relation to one or both of those acts.

BELL J:   And their Honours reasoned that the jury in fact must have been because their Honours considered it was not open to them to find the first fall was the result of a voluntary act by the appellant.  But that would still leave the issue of the downstream consequences in the sense of the failure to direct attention to the state of mind, to the extent one was considering self‑defence in relation to the second, and so forth.

MR BUCHEN:   And whether that conduct was reasonable in the circumstances at that particular moment of the exchange and the other matters that your Honour referred to as well, whether the act itself was unlawful and dangerous, because they were quite discrete and Justice Fagan makes that distinction.  The starting point for the argument that this is an error of a kind to which the proviso could not be applied, notwithstanding the appellate court’s assessment of the strength of the prosecution case in relation to the second fall, is firstly that the verdict was vitiated or impugned by reason of the error.

In S v The Queen – which is a case that dealt with latent duplicity – and that is found in the joint book of authorities at tab 15 – specifically at page 400 ‑ ‑ ‑

KIEFEL CJ:   I am sorry, what tab was that?

MR BUCHEN:   That was tab 15 and it is page 400 of the book.  Justice Dawson there, in the second paragraph, refers to a situation that occurred in that trial where there was a theoretical possibility that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict.  But that theoretical possibility was unacceptable. 

The plurality, Justices Gaudron and McHugh, later – this is at page 411 – talk about the trial – this is the second paragraph – in that case being “fundamentally flawed”.  There is a reference further down in the paragraph to Johnson v Miller which is the case that concerns latent duplicity and we do say that there was latent duplicity in this trial.  Then, further down, they refer to – this is the last paragraph:

a fundamental problem which is addressed by the requirement for certainty as to the offence charged . . . possibility that different jurors might have different acts in mind when they came to consider each of the verdicts.

Finally, over the page at 412, the point is made that it is – once a situation like this occurs, it is impossible to say how the jury would have reasoned having had the choice before them.  They say:

Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense –

That is phrased as a matter of doubt, whether it does amount to a verdict in the accepted sense:

it is impossible to say that, had the jury been directed to consider the guilt of the accused of the specific acts –

that the verdicts would have been the same.  So that is the first point we make.

EDELMAN J:   But that is not a type of error which leads, in your terms, to a conclusion that the proviso could not be applied or, perhaps more aptly, a circumstance where the proviso is not applied simply because one concludes there is automatically a substantial miscarriage of justice.  This is talking about a situation where the result might well have been different but it is just impossible to speculate upon it.

MR BUCHEN:   That is right.  But it does point to a difficulty that an appellate court finds itself in when it has to address a proviso question to an uncertain verdict, the problem being that it is impossible to then say what the verdict means and that impacts on the weight that can be given to the verdict.

EDELMAN J:   But that is not a fundamental error type category, though.

MR BUCHEN:   No, I agree with that.

EDELMAN J:   That is within the category where the result would not inevitably have been the same.

MR BUCHEN:   Yes, your Honour, and I am not relying on it as ‑ ‑ ‑

KIEFEL CJ:   Are you saying it points up the nature of the trial that was had?

MR BUCHEN:   Yes, your Honour.  That line in the majority’s judgment that he was entitled to a unanimous verdict draws attention to the importance of unanimity in the criminal justice system.  Justice Heydon in AK v Western Australia addressed that issue specifically – it is in the joint book of authorities.

KIEFEL CJ:   It points up the importance of the direction and the key aspect of the trial in relation to a wrong direction and the problems that it may cause.  But it is the direction in the process of the trial that is really your focus, is it not?

MR BUCHEN:   Yes, it is, your Honour.

KIEFEL CJ:   The rest of the problems that follow from it.

MR BUCHEN:   In terms of the consequences of the fact that the jury’s verdict does contain is uncertain.  First of all, there is a fundamental requirement of certainty of verdict in our criminal justice system.  It resonates in different ways.  For example, it offers an accused person a measure of protection in terms of a plea in bar.  It informs the court as to, when it comes to punishing the accused, what the accused is to be punished for.

BELL J:   There could not, in the circumstances of this trial, be a suggestion that a plea of autrefois convict could not be successfully raised in relation to either fall.

MR BUCHEN:   Well, that question directs attention to the verdict and the resultant conviction is a conviction in relation to which act.  And it is not, in my respectful submission, straightforward that a plea in bar would be necessarily available.

BELL J:   If a plea in bar was not, a permanent stay would be.

MR BUCHEN:   That may well be right.  I do not doubt that, that it would be an abuse of process.  However, it does, again, draw out the significance of the requirement that there be a certain verdict.  But in the context of the application of the proviso, section 6 of the Criminal Appeal Act directs attention to the verdict which underpins the conviction.  And the problem that is posed in this case in terms of the application of the proviso is, well, what conviction is the appellate court addressing, because the uncertainty in the verdict, of course, flows through to uncertainty in the conviction.  The appellate court being able to commence its proviso analysis by considering the verdict is an important part of the process and that aspect is problematised in this case.

So, for example, in Weiss v The Queen, particularly at paragraph 44, the negative proposition is framed in terms of the accused’s guilt of the offence on which the jury returned its verdict of guilty.  The question is posed in this case, well what verdict is the Court considering; what conviction is the Court considering.  Moving to point 11 in the roadmap, the error in this case meant that it could not be concluded that:

no substantial miscarriage of justice actually occurred).

Notwithstanding that the majority were satisfied of guilt in respect of the second fall, this was a view that Justice Fagan came to in his dissenting judgment at paragraphs 175 and 194 and, in particular, at 175, page 271, and we say that that conclusion is correct.

KIEFEL CJ:   Well, for the purpose of your argument, do you need to add anything to what Justice Fagan said in dissent?

MR BUCHEN:   No, your Honour, only to perhaps update the situation because Kalbasi was decided after this decision.  This Court in Kalbasi, particularly at paragraph 16 first of all acknowledged the existence of that type of error to which the – tab 11, page 265 in the joint book of authorities – in that paragraph the Court acknowledged the possibility of a case where the error is such that there will be:

a substantial miscarriage of justice notwithstanding the cogency of proof of the accused’s guilt.

EDELMAN J:   The effect of this submission in relation to this Wilde‑type error is really that it would not have mattered how weak the evidence was or maybe even non‑existent in relation to the first fall, or how strong the evidence was, even conclusive, in relation to the second fall, this would always be such an error as to amount to a substantial miscarriage of justice.

MR BUCHEN:   Yes, your Honour.  Moving one step, turning to an alternative question, the natural limitations of proceeding on the record of the trial in this case would prevent this appellate Court from being able to assess whether guilt was proved to the criminal standard.  I am applying there the words used by the majority in Kalbasi, at paragraph 15.  The majority in their reasons did not acknowledge the natural limitations of proceeding on the whole of the record. 

Can I just draw these matters to the Court’s attention.  First of all, the closed‑circuit television footage was played to the jury through the use of a particular projector, which is described as a light projector which enhanced the quality of the viewing experience to that which was seen on a laptop computer.  That issue was dealt with in the trial, from page 225. 

There was a debate amongst counsel about whether the lawyers should watch the video before this light projector was sent into the jury room.  It was ultimately decided they should do so, and then comments were made to the trial judge, particularly by the Crown Prosecutor, that watching the video in this way allowed for a higher degree of resolution – a better, superior viewing experience.

At page 229 of the appellant’s further material, the DVD was played to the court, using that medium, and then the light projector was sent into the jury room so that the jury could play it for themselves.  Of course, during the lengthy deliberation process there would have been countless opportunities to watch that video, the 12 jurors sitting down together, watching the video. 

How is an appellate court to replicate that viewing experience?  In my submission that is a significant limitation that the Court of Criminal Appeal had in reviewing the record of the trial, and in particular that critical piece of evidence.  It was not just simply:  they have the video, we have the video, we can watch it for ourselves.

GAGELER J:   Is this a submission to the effect that paragraph 50 of the majority’s reasons expresses a conclusion of fact that the majority could not have reached if it had proper regard to the natural limitations that come from being an appellate court?

MR BUCHEN:   Yes, your Honour.  Firstly, that the majority erred by not having regard at all to the natural limitations and, second of all, that it precluded that conclusion from being drawn.  It also affects their assessment of the second fall, because the other part of their reasoning is that they were persuaded beyond reasonable doubt of the second fall.

GAGELER J:   So this is really a distinct line of argument?

MR BUCHEN:   Yes, your Honour.

GAGELER J:   This is accepting the pathway of reasoning adopted but saying that the critical element of the reasoning involved a factual finding which really just was not available to the Full Court?

MR BUCHEN:   Yes, your Honour.

BELL J:   And that is distinct from your primary argument that this particular error was one that could not be cured by the application of the proviso. 

MR BUCHEN:   Yes, your Honour, to put it in the alternative.

BELL J:   Because the jury were not required to be satisfied unanimously of the actus reus of the offence.

MR BUCHEN:   That is right.  So I put both those arguments.  This is an alternative argument.  The other natural limitations of the trial which have been referred to, that matter was not referred to in our written submissions I should say, that first matter that I have just spoken about. 

The other matters that have been referred to is that the CCTV footage itself did not show the punches, you cannot see it clearly at least first blush, it is not obvious.  And that works together with that first circumstance.  There were significant reliability issues in relation to the witnesses, the eyewitnesses to the scene, because there was evidence that each witness had been consuming alcohol, often significant amounts of alcohol, before the incident and there were a range of contradictions and inconsistencies between those witnesses and as between the witnesses and what can be seen on the closed‑circuit television footage. 

The other aspect – the other difficulty of proceeding on the record of trial is that there are important portions of transcript where the eyewitnesses are examined about the content of the video.  But in that questioning, the questioner does not identify which part of the video by reference to some time counter the witness is being asked about.  So it is quite difficult to follow exactly what the evidence is. 

Now, the jury would have had the CCTV footage being played in front of them when those questions were being asked.  They would understand well what the questions were directed to.  It is not so clear from a reading of the transcript.

GAGELER J:   Given that this is not covered in your written submissions, is there somewhere in your outline of submissions where you set out the natural limitations that were not taken into account that we should now place weight on?

MR BUCHEN:   Yes.  We refer to a number of these matters at paragraph 53 of the appellant’s submissions.  But the advent of the light projector, as I explained, has not been referred to in the written material.  It is not further referred to in the outline – the roadmap document.

GAGELER J:   Are there particular page references in the material that we should be aware of?

MR BUCHEN:   Yes, your Honour.  I will give you those now.  So in the first volume of the appellant’s further materials at page 225, right at the beginning of the page the Crown Prosecutor commences to talk about watching the DVD on the new projector, as it is called, and how it assists in clarification of people’s positions.  That discussion then moves through to page 229.  At 228 the jury returns to the court and a direction is given by the judge about viewing the closed‑circuit television, and specifically at line 15 the judge says:

Now counsel looked at it this morning and without – they’ll address you in due course about what they say it shows, as I’ve explained already, but they do think there is some degree of higher resolution available on the light projector and because it might show – or depict things in a slightly different way from playing it on the audio visual equipment here in court.

Then so on it goes and then finally at page 229 the DVD – this is at line 37 – was played on the new projector, and the proceeding discussion indicates that the new projector was always going to be sent into the jury room to assist the jury with watching that piece of evidence, which is exhibit C.

EDELMAN J:   Was this point raised in the Court of Appeal?

MR BUCHEN:   No, it was not.  In relation to the Court of ‑ ‑ ‑

KIEFEL CJ:   Was it raised on the special leave?

MR BUCHEN:   In relation to the Court of Criminal Appeal, the proviso issue did not feature prominently in the argument.  The argument focused quite heavily on the nature of the error, and then other errors in respect of other grounds of appeal that are before this Court.  It was not raised in the special leave application.

KIEFEL CJ:   Well, you should not be pursuing it now, should you?  It is not the subject of a grant of special leave.

MR BUCHEN:   I am not raising this as separate ground of appeal.  I am merely raising it as one of the natural limitations which any appellate court would need to consider in consideration of the proviso.

KIEFEL CJ:   The case put to the Court of Criminal Appeal was that the direction in light of the way in which the Crown case had been presented meant that your client did not have the trial that he ought to have had, that there was a substantial miscarriage of justice in that sense.

MR BUCHEN:   Yes.

EDELMAN J:   If there had been a serious issue in the Court of Criminal Appeal about the unavailability of a light projector, why could not one have been provided to the appeal court?

MR BUCHEN:   The answer to that question is that the proviso question was not the focus of the Court of Criminal Appeal proceedings.

KIEFEL CJ:   Well, that means we do not have the benefit of their Honours’ further reasons in relation to any natural limitation argument.

MR BUCHEN:   But is that a matter that should be visited upon the appellant?  I mean, the appellant was – the proviso was raised in a cursory manner during the Court of Criminal Appeal hearing.  I made a submission in the court below that the error was of a kind that the proviso could not apply.  I did not say much more on the subject than that.

BELL J:   But in your submissions here at paragraph 53, you raise a consideration that the Court of Criminal Appeal majority erred in coming to the factual conclusion that they did by reason that they did not take into account the natural limitations and that includes reference to the fact that one cannot see clearly on the CCTV in either incident a deliberate blow.

MR BUCHEN:   Yes.  So in that sense an argument has been put in writing, but I did not advert in the written argument to this particular circumstance.  I acknowledge that I will have caught my friends by surprise by making this submission, at least to the extent that I have not made this submission before, although it is in the trial transcript.  It should not come as a complete surprise, but the submission is that if the respondent is at any disadvantage they can address that with a written note or something along those lines.  But it is still a matter that this Court should consider.  It does fall properly under the heading of that issue, natural limitations.

GAGELER J:   I am sorry to pursue this further, but you also mentioned some cross‑examination ‑ ‑ ‑

MR BUCHEN:   I am sorry, your Honour, yes.  I did not give you those references.

GAGELER J:   I do not think we need to go to it.  If you could just ‑ ‑ ‑

MR BUCHEN:   No, I will just give you the page numbers.  Pages 289 – this is in the appellant’s further material – pages 319 and 392. 

EDELMAN J:   That also was not a point that was raised for the Court of Criminal Appeal – the lack of a time‑counter reference by which the ‑ ‑ ‑

MR BUCHEN:   That is correct.

EDELMAN J:   Had it been raised, is there any reason why the court could not have been given the time‑counters by reference to which the cross‑examination was conducted – the party, for example, might have agreed upon which portions were relevant to which time‑counter.

MR BUCHEN:   I think it is highly unlikely that that could have been done.  It would require the Crown Prosecutor to be able to remember precisely which part of the video was playing at a moment during cross‑examination when no record was kept of that.

KIEFEL CJ:   Where are we with them in relation to your outline?

MR BUCHEN:   So, paragraph 14 now, your Honour, and the following matters draw out specific errors of approach in the way in which the majority applied the proviso.  The first point that is made is that in dealing with the first primary submission the majority effectively sought to address the argument by referring to the strength of the prosecution case in relation to the second fall and the absence of a case in relation to the first fall.  That was an irrelevant consideration because the error that was being argued is one that can be decided without reference to the evidence.  So, the argument is put that the majority never properly engaged with the primary argument that was put by the appellant.

The second matter – this is paragraph 15 – is that there is an implication in the majority’s reasoning.  The majority moves to a position, and it was driven to this position by the approach that it took, that there was no case to put on the first fall.  The significance of that is that it implies that there were two further and serious miscarriages of justice in the trial.  The first is that the Crown was permitted to put a case that was not open on the evidence – that is the case on the first fall.  The second miscarriage is that the trial judge put that case, or left that case to the jury for their consideration.

BELL J:   If one accepts, on Dr Little’s evidence, that it is open to conclude beyond reasonable doubt that the second fall involved an injury which was capable of causing death, that would not of itself exclude that the cause of death – without any contribution from the second – was the first fall.

MR BUCHEN:   Precisely.

BELL J:   That was an issue that, in the way the trial was conducted, was never confronted by the Crown.

MR BUCHEN:   Yes, your Honour.  Also, this was the point that was going to be raised in paragraph 20 of the outline.  It was not acknowledged by the majority either, that particular issue.  So what that means is that the majority never properly considered the question of causation in arriving at its conclusion that it was satisfied beyond reasonable doubt in relation to the second fall.

BELL J:   It may well be that it was open to reason beyond reasonable doubt that, regardless of what injury was sustained in the first fall, nonetheless the second did occasion or did make a material contribution to death.  But the fact is that issue simply was not addressed.

MR BUCHEN:   Correct.

GAGELER J:   What evidence would have gone to that issue, apart from Dr Little’s evidence?

MR BUCHEN:   That is the only evidence, but the evidence of Dr Little about cause of death was not detailed.  That critical part of the evidence, which I took the Court to, at the end of the examination‑in‑chief when his Honour intervened and asked the questions, is really the entirety of that body of evidence about causation and it is left in that unsatisfactory state.  Obviously a combination but the injuries arising from each fall could have caused death on their own.  That was not further interrogated at this trial.

GAGELER J:   But this was not pursued as a ground of appeal to the Court of Criminal Appeal, that is, the question of causation alone?

MR BUCHEN:   No.  I did raise this in the Court of Criminal Appeal during argument as a feature of the evidence that was significant but it was not pleaded as a separate ground of appeal.  But I did draw the Court’s attention during the oral argument to this specific issue.

In my submission, what happened in this trial is that it is that problem that causes the Crown to expand its case and there was anxiety by the trial judge that was articulated during the course of the summing‑up about this particular issue.  In the end, the way it was left to the jury is, “Well, there is no issue between the parties that the evidence of Dr Little is this”, and that formulation was put to the jury.  But it does not appear that the significance of that was thought through and certainly it does not appear that the majority grappled with the significance of that evidence when it came to the conclusion that there was no case to answer on the first fall because the most significant injuries, as I have argued, are ones that were more readily attributable to the first fall. 

It is the complex of injuries that start at the left side of the head that could not be explained by falling to the back of the head.  They relate almost certainly to the first fall and if there is no case on the first fall, if the most significant injuries occurred in relation to the first fall and the expert gave evidence that they were sufficient, they could have caused death on their own.  That is a problem in terms of the application of the proviso in this case.

BELL J:   It may be that it serves to highlight how off the rails the trial went at the point the Crown changed its case.

MR BUCHEN:   Yes, your Honour.  Paragraph 16 of the outline and paragraph 17 are related to one another, although they seek to make distinct points.  They are, firstly, that what the majority essentially did in this case was to effectively return its own verdict in relation to the trial because of the uncertainty in the jury’s verdict and the deficiencies that attach to that verdict.  That point is made in the written submissions, specifically at paragraph 49. 

The majority purported to return a verdict of guilt with respect to the second fall, as distinct from relying on the proviso to uphold a verdict given by the jury.  That relies in part on the argument that I sought to make earlier, that the verdict itself is vitiated in this case by reason of the possible lack of unanimity upon which it rests.

The second related argument is that, contrary to what this Court has said in Weiss, at paragraphs 35, 36 and 39, and what the majority in Kalbasi v The Queen affirmed, at paragraph 12, the majority did engage in some sort of speculative or predictive exercise about how at times it is “this jury”, at other times it is “a reasonable jury” would or should have reasoned on the basis of the evidence.  It is a very stark example, in my respectful submission, of that type of reasoning which was criticised in those judgments.

Finally, point 18, the decision of the majority, the analysis of the majority, did not have proper regard to the manner in which the parties put their cases, particularly the Crown, when it expanded its case, and then the manner in which the issues were left for the jury by the trial judge.  The analysis almost brackets out those considerations. 

It was significant in terms of the majority coming to the conclusion that there had been error, but it had no significance when the majority came to consider the proviso question, the way the Crown had put its case, whereas, for Justice Fagan, his Honour took a very different view:  that is, the whole proviso question had to be framed in that particular context.  That conforms with what this Court has said in Weiss and Kalbasi, emphasising the accusatorial and adversarial nature of the criminal process and that the proviso question has to be considered in that context.  In my submission, that did not happen in the majority’s judgment. 

I have dealt with point 19 which concerns natural limitations; I have dealt with point 20.  The last point is an alternative argument again and that is, if this Court is not persuaded, by reason of the matters that have been put thus far, then the argument is put that the evidentiary analysis upon which the majority’s conclusions rested, is attended by error.  Specifically, it is my submission, that it could not be said that there was no case to answer on the first fall; that is respectfully, wrong.  There was the evidence of the CCTV footage showing the deceased fall to the road and what looks to be a dramatic impact.  There were two inferences available, competing inferences.

BELL J:   The prosecution invited the submission that they would infer from the movement of the deceased’s head, that he had had a blow struck to him deliberately by the appellant.

MR BUCHEN:   Precisely, and then there is evidence of a witness who gave specific evidence about two punches on two discreet occasions delivered by the appellant; that witness is Mr Armstrong.  It is true that there were aspects of his evidence that did not sit particularly well with the closed‑circuit television footage in that he believed that the first punch was preceded by the deceased standing up from the gutter which was not reflected in the footage.  But, in any event, he gave evidence about the first punch which left the deceased on the road looking a bit wobbly and then he describes the punch to Mr Schwager and then the second punch.

EDELMAN J:   If that submission were accepted but your primary submission about the reasoning of the majority in relation to the second fall were not accepted, would the error have any consequence?  In other words, if the majority were in error in concluding that the first fall was not a matter that was open, but they were correct to conclude upon their assessment of the evidence that it was inevitable that a jury would have convicted based on the second fall, does that not mean that the proviso would necessarily apply?

MR BUCHEN:   No, the majority recognised that, in their analysis, the proviso could only be applied so long as the possibility that the jury might have convicted, or some members of the jury might have convicted on the basis of the acts of the appellant leading up to the first fall was only a theoretical possibility.  It was not a real possibility in any way because there was no case to consider, there was no evidence; that was the position they ultimately arrived at.

EDELMAN J:   Yes, but even if one assumes that there was evidence in relation to that, but that it was inevitable that a jury would have convicted in relation to the second fall, would that not mean that the proviso would have to be applied?

MR BUCHEN:   We would say that you could never reach a conclusion that conviction was inevitable in relation to the second fall because you have a situation where the jury are presented with a choice.  It is imponderable how the jury will negotiate that choice.  Justice Fagan in his judgment talks about a situation where some jurors might have been decided on the basis of the first fall and not wanted to trouble themselves with the vexing evidence which would have been subject to a great deal of cross‑examination concerning the second fall. 

For those sorts of reasons one could never reach a conclusion about inevitability of conviction on the second fall.  One could never reach a conclusion that it was inevitable that there was unanimity in relation to the second fall of the act of the appellant leading to the second fall.

Just in terms of a page reference to Mr Armstrong’s evidence, I will just say this.  The Crown Prosecutor in the closing address placed significance on that witness’ evidence, describing him as the only one of the eyewitnesses – and this is at page 631 of the further material, so that is volume 2.  At page 631 at line 15 Mr Armstrong is described as:

the one who saw most of the event as depicted on the CCTV.

Then down that page at around line 25 there is a summary of his evidence in relation to the first punch.  Then over the page at 632 at line 20 he again makes the point of:

you might think that he, of all the eyewitnesses, saw the majority of the incident.

So he was an important witness for the prosecution case.

BELL J:   I am sorry, but is that the witness whom the majority in the Court of Criminal Appeal considered that his answer as to the punch could not be accepted in light of the CCTV?

MR BUCHEN:   Yes.

BELL J:   Yes.

MR BUCHEN:   There were contradictions between every eyewitness and the CCTV.

BELL J:   I understand that, and your point is this is how the Crown put its case.

MR BUCHEN:   How the Crown put its case, and there was some evidence, it may be tenuous, it may be weak, but it cannot be said there is no case.  The final point, your Honours, is that it is also submitted that it was not open to the jury to be satisfied beyond reasonable doubt in relation to the second fall by reason primarily that you cannot see a punch on the CCTV footage at the time of the second fall and having regard to – there are very significant reliability issues that attended upon each of the eyewitnesses that gave evidence in the Crown case.  They are my submissions.

KIEFEL CJ:   Thank you.  Yes, Ms Abraham.

MS ABRAHAM:   The issue, in my submission, is whether my friend has established that the majority of the Court of Criminal Appeal erred in concluding that the proviso could and should be applied in this particular case and, in our submission, a proper consideration of the evidence reflects – and the correct tests to be applied – reflects that they were correct in so doing.  Indeed, my friend has not established any error in their reasoning.

In my submission, the starting point in respect to this matter factually is the CCTV.  There is no doubt that there were two falls.  There is no doubt that in respect of those two falls both were captured on the CCTV.  There is also no doubt there were a number of witnesses called, and I will come to them in a moment, but whatever state the witnesses were in, and it may be accepted they were intoxicated it being late at night, it is against a backdrop of the fact there is CCTV as to what actually occurred.

So, one is not talking about one witness that is intoxicated as being the only evidence or even two witnesses being intoxicated as the only evidence.  One is talking about at least three, in respect of the second fall and in respect to which there is CCTV footage and in respect to which, as the court below concluded, there is evidence also – medical evidence as to a bruise on the right‑hand side of the deceased’s face consistent with a blow.  

Your Honours, if I could take you to the judgment of the majority, paragraphs 51 and 52 is the description of the – it is 225 of the appeal book, is the description given by the court to the CCTV footage.  Paragraph 51, as your Honours can see, begins with the witness that my friend has just mentioned.  In the middle of that paragraph:

The CCTV footage shows no punch or apparent or obvious contact between the two men.  It is wholly in accord with the deceased having lost his balance as he stepped from the footpath and onto the (lower) roadway. 

Can I pause there.  That is the interpretation that my friend suggested to the court below and they accepted that.  That was what was put during cross‑examination by the appellant’s counsel to some of the Crown witnesses below in respect to the first fall, which, I might add, they had not seen.  Their Honours continue, the appellant – sorry, there is the incident then in respect of Mr Schwager, and just pausing there.  What one has is an initial meeting up against a shop, when your Honours see the video, the deceased backs away and turns, and one sees him step off the gutter and go to the ground. 

The appellant is following behind when the deceased is on the ground and Mr Schwager, the man who was with the deceased, came towards the appellant.  The appellant punched him.  He ends up against the telegraph pole, he slumps to the grounds, meantime the deceased has got up, the deceased – sorry, the appellant - takes steps towards him onto the road because the appellant is not on the road.  That is when the Crown says there was the blow and he just drops to the ground, never to get up again. 

The appellant stands over them, including Mr Schwager, and then leaves with no apparent injuries I might add.  The CCTV shows that he has no apparent blood on his face or any other injuries which is consistent with some evidence of security guards later in the evening shortly thereafter when he is seen getting out of a car that he was driving that he had no injuries to his face and they are non‑intoxicated witnesses.  So, having diverged, paragraph 52 is the description by the majority of the second fall. 

GAGELER J:   How do we read the first sentence of paragraph 52 in relation to what you can see on the CCTV footage?

MS ABRAHAM:   In my submission, when one goes down the paragraph it explains what is described above.  The evidence, in my submission, just pausing there, in respect to the pathology is not as high as my friend has put or as problematic as my friend has put – and I will come to it in a moment.
But there was no issue at trial in respect of causation.  None was run by the appellant and, indeed, the conclusion in respect of causation is summarised in effect by Justice Fagan at paragraph 193 of his judgment, where he says:

It was not in issue that the second impact was a significant and substantial cause of death.

KIEFEL CJ:   Just going back to paragraph 52, their Honours in describing what they see on the CCTV footage do not seem to actually identify or describe the blow.  That seems to follow from what the witnesses have said in the following paragraph.

MS ABRAHAM:   Yes.  So what one sees on the video is that the appellant has come up to the deceased.  You can actually see him standing there because he is carrying some takeaway food, and so you can see a white plastic bag in his right hand.  You can see where his hands actually are, then you see some movement – it is difficult – and…..by the appellant.  The deceased drops to the ground.  You do not see clearly the particular strike.

The witnesses then that describe that incident are described in paragraph 53 of the judgment – that is, Mr Cupitt and Ms Livingstone.  They each describe that occurring, that there was the strike by the appellant to the deceased and he dropped to the ground.  That is consistent with, in my submission, with what one sees.

Mr Marsh does not see contact.  The evidence of Mr Cupitt and Ms Livingstone was that there was contact with the face and, in my submission, ultimately, they say the left arm to the right side of the face.  Mr Marsh’s is consistent, but he does not see contact.  He sees the person go to the ground.

That leads to the court’s conclusion at 54 – the only reasonable conclusion.  He refers to at least three eyewitnesses, being Livingstone, Cupitt and Marsh.  What one has then, in my submission, and until today that description of the CCTV had not been challenged by my friends, with one exception in the written submissions.  In the reply submission there is a challenge to the reference to “the boxing stance”.  That is the only challenge.  In the submissions in‑chief, in my submission, the accuracy was not challenged.

It accords, in my submission, with paragraph 114, the description by Justice Fagan – that is appeal book 246.  So, the only evidence in respect of the first was the CCTV:

open to the interpretation by the jury as not showing any physical contact from the appellant . . . There was no eye witnesses to the first fall . . . a voluntary act –

et cetera.  So, the majority and the minority are consistent, in my submission, with what is on that CCTV footage.  Just pausing there, what has been raised for the first time this morning are somehow issues with the CCTV footage, it being said that the jury had – I think the submission is, better quality – there is no evidence of that.  But the problem with that is – this is a court of error – in the Court of Criminal Appeal, my friend did not object to the CCTV being viewed, quite to the contrary.  It is in the further material at page 795.  Rather, he describes what you are going to see on the CCTV. 

So, far from saying, hold on second, if you are going to go down that path, there is a problem here.  You are not going to be able to view it the same way as the jury who were able to view it.  That was not said at all.  At 793, the Crown had said, of course you can see it and, at 795, my friend specifically asked and he takes no objection to that course. 

Just while on issues raised today, in my submission, for the first time, that being one, the challenge to the accuracy of the descriptions generally being another, the aspect in respect to the cross‑examination of the witnesses being problematic because there is no time code referred to in the transcript – while, rather, unusually there is no time code referred to – it is obvious. 

The descriptions of what is being shown are obvious – it is self‑evident.  In my submission, that is why it was never suggested below that that was somehow any limitation to the court’s ability to deal with the issue.  While my friend might have suggested that – I think he only said one line about the proviso – the proviso was relied on then and is relied on and, in my submission, responding, I only said one sentence – the argument was really this – is not, with respect, an answer.  This is a Court of Appeal.  The Court cannot have been in error in not taking into account matters that were, in fact, conceded in many senses. 

So, in my submission, the starting point is that both the majority and the minority say the same thing about the evidence.  The difference is the approach.  Before going from the evidence, there is one other evidentiary topic that I ought mention, given my friend has raised it at the tail end of his submissions.

The suggestion in writing and my friend’s submissions today is that there is evidence in the form of Mr Armstrong, and in written submissions, perhaps, Mr Perkins, that would support a basis in respect of the first fall.  There are a number of problems with that.  That is actually in the face of not just the majority judgment but Justice Fagan said that there no other witnesses in respect of the first fall. 

The second problem with that – I have actually jumped way ahead – we have referred to it in paragraph 15 of our outline today – is that the evidence of those witnesses was deprecated by the trial judge to the jury.  If your Honours have the core appeal book, if I can just take your Honours to a couple of pages, we will deal for a start with Mr Perkins, which was referred to in my friend’s submissions. 

If your Honours could go to page 97.  We have summarised his evidence in our written submissions at paragraph 6, and I do not take the Court to that.  What his Honour does is summarise the evidence, starting at page 97.  I do not take your Honours right now to all that, but it leans at the end of the examination‑in‑chief to the passage that appears at page 102.  At the top of the page, while he is saying that this is a matter for them:

I suggest to you, by way of comment, that that is evidence you should reject.  That is to say you should reject any suggestion that Mr Perkins saw Mr Morris being punched.

The only other aspect in that is a few pages that I highlight ‑ the passage at the bottom of page 100.  His Honour has basically got there at the end of the examination‑in‑chief, having summarised that, and he goes as far as saying, basically, in light of that, “I probably do not even need to go to the cross‑examination, but I am going to go to the cross‑examination”.  So he did that and, in effect, says to the jury that they should reject his evidence insofar as it relates to seeing the deceased being struck by the appellant.

The other witness that is spoken of is Mr Armstrong.  He is dealt with immediately before.  His summary begins in the summing‑up at page 81 at about line 38 and over the page his Honour summarises the evidence ‑ ‑ ‑

BELL J:   Can I just direct your attention, just on 81 at about line 49 or so, the trial judge reminds the jury that the Crown have identified Mr Armstrong as an eyewitness to the whole of the events.

MS ABRAHAM:   Yes.

BELL J:   It is Mr Armstrong who gives an account of seeing more than one punch.

MS ABRAHAM:   Yes.

BELL J:   That is I think the passage that we were taken to by Mr Buchen at 61.

MS ABRAHAM:   Yes, yes.

BELL J:   So, regardless of anything you are going to take us to that the trial judge says about Mr Armstrong, that submission had been made in relation to what I will call the first incident. 

MS ABRAHAM:   But, with respect, what his Honour does and does forcefully is point out that Armstrong cannot be right because he says - his evidence and he starts describing it at the bottom of page 82 and the top of page 83 is that what happened was is that Mr Schwager and the deceased were sitting in the gutter and were standing up when the first punch occurred.  Now, the CCTV shows that is patently incorrect.  To suggest a jury would act on that, in my submission, is ‑ ‑ ‑

BELL J:   But it was a submission that the Crown squarely put.

MS ABRAHAM:   It was and I cannot avoid that.  However, the issue, in my submission, is not a question of submissions.  If, as his Honour has done, and it is not only at the top of page 83 that he deprecates it, but at pages 86 and 89 and he criticises the Crown’s submission at 95 to 96 and so whilst the Crown did say it, after the witnesses had been criticised and heavily criticised because clearly, plainly wrong, his Honour shortly thereafter moves to a summary of the case for the Crown and for the defence and that appears at 107 at the bottom paragraph of the page, that is, focusing, in my submission, on the second fall and the witnesses that I mentioned at the beginning of my submissions.

In other words, he has got rid of these.  Crown case really, if you are satisfied with these witnesses in respect of the second fall and, in my submission, there is no issue that they relate to the second fall because they either start watching at the time Mr Schwager hits the pole and goes down but they all have the deceased not getting up again after the punch they saw, so they are clearly talking about the second fall.  There is no issue about confusion in respect of that and the first.

EDELMAN J:   If it is right that in relation to the second fall effectively conviction was inevitable, why does it matter whether or not it was open or not open to reach any conclusion that there was a punch in relation to the first fall?

MS ABRAHAM:   In my submission, what the Court of Appeal did was ask the question which this Court has suggested or said – not suggested - said ought be asked, that looked at the nature and effect of the error, and so what they have done is looked at, okay, this is an error.  At first blush one might think this is an error that generally is one that might be one that ought not apply to the proviso but because one is not dealing with categories and this Court says that it ought not be done with categories, be it an element of the offence, whatever, they look at, well, what effect does it have?  That is when they analyse the evidence and go hold on, it is not a question of really there being evidence in respect of two falls.  There is none in respect of the first at all, so the jury has not reasoned impermissibly.

EDELMAN J:   But if it is to be the appellate court’s own satisfaction including based upon the whole of the record as to guilt beyond reasonable doubt and the appellate court is satisfied that there is guilt beyond reasonable doubt based upon the second fall, does it matter then whether or not the first fall was open to have been caused by the appellant, or not?

MS ABRAHAM:   Your Honour, a couple of comments about that.  The courts have said that it is sufficient but not – it is necessary but not necessarily sufficient for satisfaction beyond reasonable doubt, and a particular relevance here of finding there is no evidence in respect of the first fall and therefore it had no effect, therefore the verdict necessarily related to unanimity on the second fall, is that, amongst other things, whilst the court has not said it explicitly, the verdict can be taken into account because all the issues have been dealt with.

So, they say no evidence that you could act on or no reasonable evidence, no evidence you could act on and, in my submission, that is correct.  We accept the Crown did make the submission.  The submission does not make evidence.  The court acts on the assumption that juries follow the directions and when the ‑ ‑ ‑

KEANE J:   This jury were left in a situation as a result of the directions whereby they were in a position where they thought it was open to them, having regard to what they were directed, to convict in relation to the first blow, the punch that was on the way, as it was said.

MS ABRAHAM:   But, with respect, there is no evidence of that and what they might have thought when they walked into the jury room, the judge says this is open, and analysis of the evidence by them – and the court refers to that at paragraph 59 – there was just no evidence.  So, whatever the judge said, they would not have gone down that path because there was nothing to go down.

KEANE J:   And so ‑ ‑ ‑

MS ABRAHAM:   The Crown got it wrong basically, to be perfectly blunt.

KEANE J:   Well, the Crown got it wrong but the jury were invited to proceed in a particular way and they were not instructed that they had to be unanimous in their view about which act on the part of the accused caused the death.  The only way you avoid the problem in terms of having the jury’s verdict, having a verdict from this jury, is to engage in speculation about what they did, what they actually did, not what they were entitled to do one way or the other.

MS ABRAHAM:   In my submission, it is not speculation to consider what evidence there was in respect to both the first and second fall, to conclude whether or not the jury may have been misled by the absence of the direction.  In my submission, that is not speculation because unless one is looking at the evidence to determine whether the nature and effect of the error - in a case like this what one would be saying is in every case where there ought to have been a direction as to unanimity, necessarily without more – whether it had an effect or not, even if there was no evidence, you have still – the proviso cannot apply.

In my submission, the cases in this Court, most recently in Kalbasi, have talked about even an element as to the elements of the offence.  You look to see the nature and effect of the error and that is all the court is doing.  It is not speculation.  If there is no evidence, then there is no evidence.  The jury, acting on the basis that juries followed directions and they are ‑ ‑ ‑

BELL J:   But the judge’s statements in the course of the summing‑up as to factual matters are not directions which the jury is required to follow.  They can be given with considerable strength, but they remain comments by the judge. 

MS ABRAHAM:   I agree.

BELL J:   What the jury is required to comply with are the directions and the judge directed consistently with the way the Crown’s case was ultimately put on a basis that left that it was open to reason to guilt based on the deliberate act, it being a punch involving the first fall.  So, I mean it is all very well to say there was - on an analysis one might argue insufficient evidence to support that conclusion.  The Crown Prosecutor who was at the trial watching the CCTV evidence conscientiously put the submission.

MS ABRAHAM:   Your Honour, every member of the Court of Criminal Appeal quite rightly said that there is no evidence from the CCTV in respect – and my friends accept that.

BELL J:   I am speaking of inferences that were drawn including, I suppose, an inference of Mr Armstrong’s evidence - who knows.  The matter I am raising with you is the difficulty of saying that it is right to reason to the proviso based amongst other things on a view that it was simply not open to reason that any deliberate act of the appellant caused the first fall in circumstances where the Crown Prosecutor has invited the jury to so find and the trial judge has not directed that that is not an open path.

MS ABRAHAM:   There was no complaint below ‑ ‑ ‑

BELL J:   Yes, I understand.

MS ABRAHAM:   ‑ ‑ ‑ by senior counsel for the defence, experienced criminal counsel.  That only goes so far but because, with respect, it was whilst technically there a non‑ issue on the evidence which is why when his Honour summarised the case at page 107 that is what is put.  The Crown says at least these three witnesses - and you know in effect that relates to the second fall. 

One just needs to look at the light touch that is put to this by my friends, the appellant’s counsel, at first instance.  It was basically really there is nothing there, let us move on; nothing to see here, let us move on, in respect to the first aspect.  With respect, my friend accepts on the written submission that the first fall, there is no evidence on the CCTV to support that finding.  So everybody seems to be of that ilk. 

In respect to the approach taken by the Court, can I just take the Court briefly to Reeves.  It is not in the bundle but we provided a copy.  We have referred to it in our written submissions.  I take the Court to it for two purposes.  Paragraph [51] - your Honours will remember this case obviously having looked at it recently for Kalbasi. 

Here the issue was a direction about an element of the offence and an important element of the offence and what this Court said at paragraph [50] is that whereas here the legal error at the trial was a wrong direction relating to an element of liability, the significance of the verdict was to be assessed in light of the capacity of the misdirection that had led the jury to wrongly reason for guilt ‑ towards guilt.  That is, in effect, what the court was doing here.  It was looking to see whether the absence of the direction gave rise to a capacity to have led to a difference in conclusions. 

One needs to be, with respect, careful because on my friend’s argument it is decided – some decided on the first fall and not the second.  So it is not that some decided on the first and the second – it is only decided on the first, the second being a much stronger count, of course.  So that is where the split my friend puts up as a possibility that some decided they were only satisfied of the count where there is nothing – or, sorry, the fall that there is, in our submission, no evidence, and not satisfied in respect to the fall where there was all the evidence.  The other aspect of Reeves that I simply draw the Court’s attention to - at the tail end of – the last sentence of paragraph 49, the paragraph above, this Court observed that:

The existence of these competing inferences does not diminish the force of Bathurst CJ’s conclusion –

and that, in my submission, is significant.  In this case, the evidence was not – as in Reeves, the evidence was not all one way on this important topic and what is obvious from the passages that follow thereafter and I do not take the Court to them, is that the Court then looked at what effect, if any, the actual misdirection had on a live element.  There is no difference, in my submission, here. 

What the Court has done here is done what Weiss has told them they ought to do and that is look to see what is the effect, if any, on the jury process and they concluded, culminating in about, I think, paragraph [59] that it had no effect because there was no evidence.  They did so in light of the fact that, of course, they all had to be satisfied of guilt beyond reasonable doubt so the onus and burden were correct.  So, ultimately, they were not misled.

They concluded because of that that this was not a case where the proviso could not apply because of the nature of the error. The difference, in my submission, between the two judgments, that is the majority judgment and the minority judgment, is what Justice Fagan does is say, look, there is no evidence.  I am not going to bother looking at whether in respect to the first fall there is anything at all – whether they – there is just nothing, but there are no other inferences and he says that there is nothing on the CCTV.  I do not need to do that because I can avoid that step of looking at the effect, in my submission - my words, not his – the effect of the error because I simply look at the error.  He has referred to this Court’s decision in Baiada and said that some of the paragraphs there permit that approach.

In my submission, that is contrary to Baiada where the Court actually went to the evidence to see what, if any, effect the error had.  What, in my submission, Justice Fagan has done is the very thing that ought not occur and that is looking simply at the error – “This is an error about the element of an offence, therefore you’ve had no trial”.  I do not need to trouble myself with what he describes as the intermediate step, actually looking at the effect.  In my submission, that is incorrect.

What the majority did is actually look at the effect.  One cannot avoid that it had no effect.  As Justice Fagan said, “Perhaps a jury might have acted unreasonably.”  In my submission, no court acts on that assumption, in terms of what a jury may or may not do.

Going back to what your Honour Justice Keane asked me earlier, in my submission it is not a question of speculating; it is a question of doing what this Court has said they ought to do.  In this case the court had the benefit of the CCTV.  So whilst we accept of course that the witnesses were intoxicated and we have summarised the evidence of the witnesses in our submissions, those three witnesses maintained throughout – it was suggested to them that there was not a punch.  They disagreed, “Yes, there was; he punched him” - there was no doubt about that.

So for my friend to say there are inconsistencies and the like, they are adamant about what they had seen, that the appellant had punched the deceased causing him to fall to the ground not to get up again.  If the court is correct and that is backed up, as I said, by consistency with the CCTV and medical evidence, and we know that it appears that the appellant had no injuries because we can see that from the CCTV and he is seen after by a security guard – I will just give your Honours the page references, at the further material at 239 to 240 and at 197 to 200, the appearance afterwards.

So one is not talking in a case like this if, as the court concluded, nothing on the first, they must have decided on the second and those steps that flow, that your Honour Justice Bell spoke about, that might be infected are not infected because they answered it in respect to the one matter.

BELL J:   But the matter was left to them on the basis that it was open to find each of two voluntary acts that caused death and they were not then directed to consider the issues concerning excessive self‑defence or the characterisation of the act as unlawful and dangerous in relation to each.

MS ABRAHAM:   They were directed about ‑ ‑ ‑

BELL J:   They were directed in correct terms as to the elements of the offence of murder and manslaughter and the significance of excessive self‑defence under the statute – the definition of what constitutes an unlawful and dangerous act.  But the directions, as Justice Fagan pointed out, did not then focus on the elements as they applied to the facts because there was no analysis of the question of whether the jury were persuaded as to excessive self‑defence in relation to the first but not of the second, and likewise.

MS ABRAHAM:   Your Honour, my response is that the first step has to be was there a blow that caused the death.

BELL J:   Yes. 

MS ABRAHAM:   So, having come to that conclusion, we say unanimously, according to the majority, on the second that is how they answer the other questions.  In my submission, to suggest, with respect, that those directions are somehow – more should be said about the facts in respect of those – that was not a ground of appeal.  Self‑defence only applied to the second.  The high point of self‑defence was seeing on the video the deceased head move back and that is it.  That is after he had confronted – he had punched Mr Schwager and he had gone up to the other man.

That is the high point of self‑defence, in my submission.  It did not apply to the first.  There was no issue of self‑defence because there could not be because the deceased was walking away and turning – he turns and steps off the gutter on to the road.  So, on any proper application in respect of self‑defence, they have not been.  If the jury are unanimous in respect of the first, then they have considered the other issues that flow from there.

BELL J:   It is, I think, the broader point, that you need to identify the actus reus of the offence in order to consider the application of the elements to it.  That is the point that Justice Fagan is making.

MS ABRAHAM:   To which my response is the jury have by deciding in respect of the second because there was no evidence in respect of the first.

BELL J:   Yes, yes, I understand.

MS ABRAHAM:   So, as a matter of practical reality – when one is looking at what effect did this have – it had none, ultimately, because of that fact.  So, in that sense, this is quite an unusual case because what was put was based on a prosecutor saying something at the tail end of a trial when, in fact, there was no evidence.  It is not an S Case or one of those sorts of cases where there was obvious evidence to support a variety of incidents which all could properly support a conclusion.  This is not one of those cases at all. 

EDELMAN J:   Do you concede that if there was evidence, perhaps slight evidence, to leave it open for the jury to conclude that there had been a punch in relation to the first incident then it would not be open to apply the proviso?

MS ABRAHAM:   I do not concede that, actually.

EDELMAN J:   Why not?

MS ABRAHAM:   Because, in my submission, if you are talking about slight evidence no reasonable jury could act upon, then no.

EDELMAN J:   Enough evidence for a jury to act upon it.

MS ABRAHAM:   If there is a proper evidentiary basis upon one and not the other then the issue would be whether in the trial you could do it.  I would accept we are in a completely different ballgame in that factual scenario than we have here.  That would be the more typical case where this error arises where you do not know what basis the jury may have if there was proper evidence – like an S scenario.

EDELMAN J:   You would not say that if that were the case, that were the proper characterisation of the facts here that the jury would necessarily have convicted either on the second punch or on both.

MS ABRAHAM:   We would say because the evidence on the second punch was overwhelming on any scenario, in my submission.  We would say that.  So even if there was some evidence on the first, we do not accept there was evidence on the first, let alone reasonable evidence on the first.

BELL J:   Just one matter, Ms Abraham.  You mentioned earlier, by reference to Justice Fagan at paragraph 193, that causation was not in issue.  That was in the context that there was no issue that Dr Little’s evidence established that each blow was a significant cause of death.  The issue that Mr Buchen, as I understood him, said he had raised before the Court of Criminal Appeal was when the Crown changed its case to embrace the first‑blow theory one difficulty was excluding the reasonable possibility that the first fall was the result of the deliberate act of the appellant.  I am sorry, put that to one side.  The consequence of the first fall was a fatal injury and that nothing done thereafter bore on that.

MS ABRAHAM:   In my submission, it was not an issue at trial, and that is why Justice Fagan has said what he said.

BELL J:   Justice Fagan is dealing with a different point.  He is pointing out how unnecessary it was for the Crown to change its case because ‑ ‑ ‑

MS ABRAHAM:   That is because the medical evidence did not have any effect because it is a combination of the injuries.  Whilst my friend has said that it was some sort of issue below, senior counsel did not cross‑examine or take issue with the point at all.

BELL J:   Yes, I understand.

MS ABRAHAM:   My friend’s submission that the fall with the more significant injuries – there is no evidence of that.  Dr Little did not say that.  Dr Little said that she could not say which injuries came from which fall, and she had seen the CCTV.

BELL J:   The point was argued before the Court of Criminal Appeal but was not an issue at the trial.

MS ABRAHAM:   I do not recall it being argued before the Court of Appeal I would have to say.

BELL J:   I see, all right.  I see, yes.

MS ABRAHAM:   I think my friend just said it was raised as opposed to argued.  It was definitely not dealt with below at all because it was not an issue which is why Justice Fagan has said what he said but again it comes back to raising now these issues.  This is a court of error.  If it was not put and it is not put in the written submissions, it was not argued on the special leave, all of a sudden causation is somehow an issue because on my friend’s interpretation, contrary to the evidence, it is the first fall that must be the one that has caused the serious injury.  It just did not occur.  There is no basis for that, in my submission.

So, in my submission, ultimately at the end of the day, one asks the question, is there error in the reasoning of the Court of Appeal.  In my submission, they applied Weiss which was endorsed by this Court recently in Kalbasi.  Their analysis of the evidence whilst very recently challenged today; had not been challenged.  The CCTV description is not challenged.  It is consistent between the majority and the minority judgment.  In my submission, no error has been demonstrated.  The reliance on Justice Fagan’s judgment, in my submission, is inconsistent with this Court’s approach.  Those are my submissions.

KIEFEL CJ:   Is there anything in reply.

MR BUCHEN:   Just very briefly, your Honours.  A submission was made that the majority and Justice Fagan agreed that there was no evidence in relation to the first fall.  That is not what Justice Fagan said.  At paragraph 153, his Honour indicated:

I do not find it necessary to determine whether the evidence was incapable of supporting a finding beyond reasonable doubt.

Then at paragraph 193, his Honour referred to the evidence in relation to the first fall being:

very much weaker –

and secondly, in respect of the decision of Kalbasi, reliance was placed on what is said at paragraph 50 and following.  There is an important point of distinction obviously and that is that there was no joinder of issue in Kalbasi which is not the case here.

Finally, I emphasise that the Crown case that was put at trial was that there was a case on the first fall.  The Crown relied on Mr Armstrong to that extent.  Before the Court of Criminal Appeal the respondent argued that there was a course of conduct – that was a position that was not accepted by the majority or the dissenting judge – and the respondent now seeks to argue in this Court that there was no case in relation to the first fall, which must have, as a necessary implication, that there were further miscarriages of justice in the trial, because that case then should never have been put and should never have been left for the jury’s consideration.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 12.12 PM THE MATTER WAS ADJOURNED