Lansbury v The Queen

[1989] HCATrans 127

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B29 of 1988

B e t w e e n -

KEITH LANSBURY

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

DEANE J

DAWSON J

TOOHEY J

Lansbury

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 JUNE 1989, AT 12.05 PM

Copyright in the High Court of Australia

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MR B. McMILLAN, QC:  May it please the Court, in this matter

I appear with my learned friend, MR P.J. ALCORN.

(instructed by the Public Defender)

MR P.G. NASE:  May it please the Court, I appear on behalf

of the respondent with MR M.J. BYRNE.	(instructed
by the Director of Public Prosecutions).

MR McMILLAN:	I hand up an outline of submissions, Your Honours.
MASON CJ:	Thank you.
MR McMILLAN:	I also take the opportunity to hand up copies of the relevant sections that will be referred to.

MASON CJ:  Thank you. Yes.

MR McMILLAN:	Thank you, Your Honour.
Your Honours, this application for special leave

to appeal concerns the interpretation of two

separate expressions contained in section 315

of the Queensland CRIMINAL CODE. The applicant

was charged that in January 1987 he, by means

calculated to choke, namely, by pulling tight

a tie around the throat and with intent to facilitate

the commission of an indictable offence, attempted

to render a young girl incapable of resistance.

In September 1987, he was convicted on that

charge. On the second-last day of the trial,

the trial judge on the meaning of the word "calculated"

as used in that section. Now, that ruling was

given in response to a request by defence counsel. that our learned friends do not make any point as to that but acknowledge that being so.

Now, the ruling of the learned trial judge

is found at record 115 to 119. (Continued on page 3)

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MR McMILLAN:  He reviews the decision of this Court in

O'SULLIVAN V LUNNON and looks at two Australian

decisions which we will be taking the Court to,

namely WISHART - a decision of the Federal

Industrial Court - and a deei,sion, a single judgm:nt of

Justice Mitchell in CRAFTER V WEBSTER.

MASON CJ:  Well, he ruled, but it meant "likely to"

rather than "intended to" or "designed11 arid ·he

went on to direct the jury accordingly.

MR McMILLAN: It m~~Dt li~ely, that- is so - direct the jury in	acc.orc:1ru;i.ce with that ruling. And, accordingly, there was, of course,
no application for a redirection. The Court of·
Criminal Appeal dismissed an appeal by a majority
which was brought on two grounds: the first one
related to the expression "calculated to choke" -
the subject of the ruling - and the other concerned the error of the trial judge in
directing that if the jury was satisfied that the
appellant attempted to render the complainant incapable of resistance by means of calling out for help, then that was enough to satisfy the requirement in section 315 of attempting to render her incapable of resistance.

The judgment of the Court on this point will

be found at record 170 onwards. His Honour

the present Chief Justice who wrote the judgment

of the majority dealt with the aspect that the

term "calculated" has two differing and distinct

meanings and referred to the dictionary meanings,

especially the Shorter Oxford Dictionary.	He then
deals with one - - -

MASON CJ:  We have read the judgment, Mr McMillan.

MR McMILLAN:  Yes, Your Honours, we appreciate that. He

also deals with the decision of this Court in

O'SULLIVAN V LUNNON and,accordingly, I should

take the Court to that decision and compare it

in its application - - -

TOOHEY J:  Before you do, Mr McMillan, could you tell us

how you say the section should be read? It would

appear to be - I take it would say that it reads

any person who by any means to intends to choke,

suffocate or strangle and intends to commit, thereby,

or to facilitate, thereby, the commission of an

offence, is guilty of a crime. Is that how it

should be read?

MR McMILLAN:  That is how we would contend it should be read.

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McHUGH J:  Does not the use of the words, "by any means"

tell against that? I mean, on your theory of

the section it would be sufficient, in effect, to

say, "any person who intends to choke", et cetera.

MR McMILLAN:  Well, the word "means" there, we would say,

is another way of describing "act", who by any

act or omission calculated to choke.

McHUGH J:  But the case put against you is that "calculated"

in effect means "likely to have the effect".

MR McMILLAN:  Yes, taking away the subjective element that

is the case that is against us. The fact that

there is also another intention to be proven,

namely, the intent to cormnit or facilitate the

cormnission of the offence was adverted to by

Chief Justice Macrossan. And, cormnent was made

that it makes the section rather difficult of

interpretation to have those two intents and we

would say that there is nothing wrong with that.

(Continued on page 5)

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MR McMILLAN (continuing):  We would say that there is

nothing wrong with that; there is nothing wrong
with the Crown being called upon to prove an
intent as to the means employed by the accused
to choke and the next element that the Crown

must prove is the intent to commit or facilitate.

McHUGH J:  But is it not the point against you that it

is the means which is calculated to do something?

It is not the person.

MR McMILLAN: Yes. Well, Your Honour, we would say that

the use of the expression should not thereby assist in the interpretation which the Crown contends for. It is quite capable of remaining

there in the section with a subjective connotation.

McHUGH J:	Yes, I appreciate that.
MASON CJ:	But you have the con tr as t with the reference

to "intent" later on. The legislature has gone

to the trouble of specifically identifying "intent"

later on. The implication or inference is that

if it uses "calculated" in the earlier clause,

then it is using that in a different sense.

MR McMILLAN:  Yes. So much so, it must be conceded, there

is a different sense and the authorities on

interpretation do suggest that where there is

change in meaning adopted by the legislature,

that is material but that is only one indicator,

if we might say so, with respect, to - - -

MASON CJ: Well, what indicators have you got in your

favour?

MR McMILLAN:  The basic approach by the courts that, in

interpreting a criminal statute, the subjective

element will not be taken away without clear

words.

DEANE J:	One small indicator in your favour might be the word "and" before "with intent" which is
superfluous unless it is intended to catch up
an intent in the previous parenthesis.
Mr McMILLAN:	Yes, Your Honour, that is, as Your Honour

says, one small factor in our favour. We must

take that on board, that the le3islature has seen

fit to use the word "intent" and we will come

back to that.

I will not weary the Court with a lengthy

resume of O'SULLIVAN but, in that case at page 673

of the report is set out the words of the Queensland

statute and, in particular, at letter E in the

left-hand column. There it was an offence for a

person:

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A person shall not either alone or in concert with any other person .....

(c) do or omit to do any act, which act or

omission is calculated to harass ..... any
person on account of

(i)    his or her performance of duties -

(Continued on page 7)

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MR McMILLAN (continuing): At page 674, Chief Justice Gibbs

looks at a previous decision of this Court in

THURLEY V HAYES but first of all observes:

The word "calculated" may be used in two senses, as meaning either devised

with forethought, or "likely".

His Honour then deals with the later words of

"because of", at approximately two-thirds of the

way down that paragraph:

In the section the expression "on account

of" appears clearly enough to be used in
its ordinary sense of "because of" and
to indicate the :ieason why the person

charged did or omitted to do the act in

question. Once it is understood that the

concluding words of s. 5(1)(c) speak of the

reason for or purpose of the act or omission,

it becomes apparent that "calculated" in that

paragraph imports an element of intention or

design.

TOOHEY J:  But that is because, is it not, the offence in

O'SULLIVAN V LUNNON was doing an act calculated

to have a particular effect? The offence with
which we are concerned is the offence of

rendering, or attempting to render a person incapable

of resistance, and interpolating,"by any means

calculated to choke, suffocate or strangle".

MR McMILLAN:  Yes.

TOOHEY J: There seems to be a world of difference between

the two sections.

MR McMILLAN:  Your Honour, we would approach that in this

way: the ultimate act, in section 315, is the

rendering,or attempting to render "a.	person
incapable of resistance".	In O'SULLIVAN V LUNNON
it was harassing a person in the performance

of duties.

TOOHEY J:  No, it was doing an act calculated to harass,

was it not?

MR McMILLAN:  In section 315 the preparatory act is

"any means calculated to choke" - any means.

TOOHEY J: Yes, it is a reference to means by which the

offence may be committed.

MR McMILLAN:  And in O'SULLIVAN's case it is an act

calculated to do those matters referred to.

MASON CJ: That is because of a reason, or because of

one of a number of reasons.

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ivfR McMILLAN:	That is so, Your Honour.
MASON CJ:	The reference to reasons undoubtedly indicates

that it is \·intention that the legislature

was referring to.

ivfR McMILLAN:	Yes, Your Honour and that is the - - -
MASON CJ:	How does O'SULLIVAN V LUNNON help you?
ivfR McMILLAN:	We would apply the reasoning there to

the interpretation of the words used in

section 315, because you have three separate

elements to look at.

MASON CJ:  But it is a different statute and the factors

in the statute that led to the conclusion are

not present here.

ivfR McMILLAN:  Our response to that is that, with respect,

they are present because you .. have "the means

calculated to choke" as the first element;

there must be an intent to commit, or facilitate

the commission of the offence by those means;

and the further element is that it must have

the purpose of rendering, or attempting to

render the person· ucapable of resistance".	We
say a similar reasoning is apposite.	We cannot
take the point any further.

(Continued on page 9)

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MR McMILLAN:	Now that is the approach adopted in O'SULLIVAN.

There were several other cases referred to in that

decision, such as THURLEY V HAYES. If I could take

the Court to that decision which is reported at

(1920)27CIR548. The offence arose under section 137

of the Tasmanian POLICE ACT and the proscribed ast

was to:

Use any threatening, abusive, or insulting

words or behaviour with intent or calculated to provoke a breach of the peace, or whereby

a breach of the peace may be occasioned.

The Court there, at page 551, referred to

previous cases:

As to the word "calculated" it has been frequently held equivalent to "likely to

have the effect."

All the cases referred to there, apart from

CATTS V MURDOCH, were matters that come under the

generic area of passing all factions which is a

different, we would say, animal altogether. But

THURLEY V HAYES stands by itself because the words

of the section speak for themselves.

TOOHEY J:  But in a sense the words do what section 315 does;

namely, juxtapose "calculated" and "intent", as

a result of which, in THURLEY V HAYES, or perhaps

not as a result of which but in any event the

result was that "calculated" was interpreted

differently from "intent" and you have the situation

in section 315 where "calculated" is juxtaposed

in one context with "intent" in another.

MR McMILLAN: Well, it is placed in the alternative there,

Your Honour, "with intent or calculated to provoke".

So it is providing an alternative approach when the

court comes to look at the words used. And it is not

words directed to any particular person, it is words

objective interpretation of those words. Whereas,	that would be used generally, thereby requiring an
in section 315, it is the means directed to a specific person in a. specific situation.

It is for that reason, that we would submit that

THURLEY V HAYES is to be distinguished when interpreting

section 315.

DEANE J:	The structure of the next two sectionsdoesnot really
help you, does it?
MR McMILLAN:	317 is a section which was dealt with by the

Court of Criminal Appeal in Queensland in a case

called LEAVITT which we will be taking the Court to.

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MR McMILLAN (continuing):  It dealt particularly with

subparagraph (2), unlawfully attempts, but perhaps

we could refer to - - -

DEANE J:  I was not suggesting you go to authority, but

just looking at the way the three sections are

structured, there is a specification of the same

intent with reference to objective acts.

MR McMILLAN:  Yes. We would say that one interpretation

that has been placed on one of those paragraphs

supports us in this case. The chapter is not

felicitously drafted because it has been amended on

a number of occasions and it comes originally from

the English OFFENCES AGAINST THE PERSON ACT of

1861 and with amendments over the years.

DEANE J:	You could say the same about the irrelevant footnotes
t o  s e c t i o ns 315 and 3 1 6 .

MR McMILLAN:  Yes, Your Honour. The various cases referred

to by Chief Justice M.acrossan that relate to likely

to deceive or calculated to deceive are used in those passing-off actions where the courts have

invariably adopted an objective approach because

it is the general public who is the object of the

action of the defendant and the courts traditionally

and can only, we would say, deal with it in an

objective sense. So it would be improper, we say,

to import the notions of what calculated means in

those instances into the reading of this particular

section.

LEAVITT is found in the bundle of cases which

have been handed up. It is reported at (1985) 1 Qd R 343.

As was observed earlier, it deals with section 317 and

paragraph 2. The contention which was advanced

by the Crown was to support the ruling and direction

given by the trial judge which would have taken away

any subjective element in that action and at page 345

at the top Justice Andrews, as he then was, says

that:	it would be sufficient for the Crown's
purposes that the jury be satisfied
beyond a reasonable doubt that the
complainant would have foreseen that
there was a danger of striking one of
the police officers with a bullet.

Then lower down, after referring to the Shorter

Oxford Dictionary says, at approximately line 12:

The seeking to achieve a result involved

in an attempt simply must involve an

intention to achieve it. I can think of

no practical use of the word which does

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not involve an intent. To inform the

jury that it was not necessary for them

to find that the appellant had an intent
to strike a police officer with one of
those bullets is to ascribe a meaning to

the word which it simply has not.

(Continued on page 12)

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MR McMILLAN (continuing): And in looking at the judgment of

the remaining member of the court, Mr Justice Williams,

at page 347 at line 30, after reviewing the use of

the word "attempt" generally in the Gode, says this:

Before a jury could find that an accused person

"attempted to strike a person with a projectile

namely a bullet", they would have to be

satisfied that at the time he fired the gun

his object or aim was that a person should be so

struck. Whether one defines "attempt" by using

the words "try" or "endeavour" as the learned

trial judge did, or by saying it involves a

desire to bring about a particular object (or

aim or result) it is clear that there is a mental

element involved. One cannot "attempt" to do

. ,,

something unless one contemplates a particular

result and intends to bring that about.

We would rely on that in part for interpreting

the opening words to section 315 and it would be

consistent with the courts in interpreting the

provisions of this section which are difficult

concepts because they are not simple offences, they

require a number of elements, such as in 317.

The meaning adopted by the majority of the Court below

has the effect th~t whatever the intention of the
accused is in using or adopting the means to commit
the offence of rendering a person capable of resistance
then it is the view taken by the jury, in an objective

sense, which controls their consideration of his

actions.

Thus, the intention of the accused in adopting

the means he chooses is not an essential ingredient

for the Crown to prove. A jury really would have

no difficulty, we submit, in coping with the direction

to the effect that, before they can find the offence

proven, they must find that the accused had an intent,

by the means adopted by him to choke the victim,

before they move on to the other elements, that is,

the two other elements of the offence. The majority of the court accepted that there are

two separate meanings and we would submit that where

that is so then the authorities, such as BECKWITH and

ADAMS, should control the interpretation; that is,

there should be an interpretation which favours the

accused. That is an approach which goes well back in

history. Might we take the Court to the decision in

WISHART V AUSTRALIAN BUILDERS LABOURERS FEDERATION,

(1960) 2 FLR 298:

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MR McMILLAN:  At page 299 is set out the particular

rule of the Builders Labourers Federation and

is subject for interpretation. It was provided

that the federal council of the federation had

the power:

(a) To suspend, expel or remove from

office ..... any member of the federation,

if it is satisfied that such member -

and down to paragraph (v):

Has done any act calculated to weaken,

injure or destroy the federation.

At page 301 the major paragraph starting with

"It was submitted" sets out the approach by that

court in approaching the interpretation of those

words. As they said half-way down that paragraph:

If it is to be given this meaning -

that is "likely to have the effect" -

the sub-clause would have a very wide
effect, could very well be regarded as
exceedingly vague and uncertain in

meaning and might perhaps penalize the

innocent. The penalties provided

include expulsion and removal from office

and are therefore severe ...... It is a

well know rule of construction that where

a provision which imposes penalties is

capable of two meanings it should be

construed strictly, that is, in the narrower

and not in the wider sense, unless the

contrary clearly appears.

We say that in this section the contrary does not

appear.	In the other Australian case which appears
in the decisions below, that of CRAFTER V WEBSTER &

GUSCOTT, it is a single judge decision,

(1980), 23 SASR 321. In the headnote appears the

relevant provision which Justice Mitchell was
required to interpret. Half-way down the headnote:

provides that a person is guilty of

undue influence who "at any time between

the issue of the writ and the close of

the poll publishes ... to public view

any ... printed matter containing any

untrue statement defamatory of any

candidate, and calculated to influence

the vote of any elector".

At page 337 Her Honour approached the question 1n

this way:

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I do not understand the word "calculated" -

1n the first main paragraph

to mean 1nten e If• d d" b ut to mean "l'k 1 fl 1 e y -

and then deals with a number of what we would say

to be passing-off cases. The judge referred to

WISHART's case but does not follow it in this

instance. We would say that CRAFTER can be

distinguished here because there it was a case of

looking at the effect which the acts of the defendant

had on the public generally which required an

objective approach . The second ground argued

below dealt with the meaning of the expression

"incapable of resistance". There was an earlier

decision of the Court of Criminal Appeal of

Queensland, namely OSBORNE, (1987) 1 Qd R 96.

(Continued on page 15)

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TOOHEY J: Be£o~e you take us to that, Mr McMillan,

what you do say the word "resistance" means in

the section - or perhaps the phrase, "incapable

of resistance"?

MR McMILLAN:  We would say that we w0uld adopt the

dictionary meanings, namely, a physical manifestation

of the response of the victim.

TOOHEY J:	I am not sure that I understand that.
MR McMILLAN:	The court below adopted the expression

"resistance" as including a cry for help, a cry

for assistance. We would contend for the meaning

that it only is referable to physical application

by the victim, that is, struggling.

TOOHEY J:  You mean you have to tied up or something like

that?

MR McMILLAN:	No, it could be grasping a person around the legs to stop them - - -
TOOHEY J:	What, getting away?
MR McMILLAN:	Yes, getting away, but not calling out.

TOOHEY J: If holding somebody around the legs to prevent

them getting away is rendering them incapable

of resistance it is a bit hard to see why preventing

them from calling out is not.

MR McMILLAN:  Yes.

McHUGH J: Particularly since the means are calculated

to choke, suffocate or strangle, something you

are going to be doing withtheirthroat, or breathing,

anyway, is it not?

MR McMILLAN:Yes, W-e would say that the history of the legislation

mu8c be gone back to. It was a statutory offence

first emerging into the light of day in 1861

and, no doubt, the legislature in the United

Kingdom considered that a person who was rendered

incapable of resistance by choking ran a great

risk of dying, more than probably any other physical

form of force to the body. and there is probably

no greater way to stop a person resisting the

motions of the attacker than to render them

insensible.

(Continued on page 16)

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MR McMILLAN (continuing): In fact, the earlier provision

in England use those expressions as well

"insensible" or "unconscious", and they were taken

out in this instance.	But that is the meaning that
we would contend for.

DEANE J: But, you cannot really just put it in the abstract,

can you? I mean, here the jury found that your

client had done this by the tie round the girl's

neck. Now, if you intend to choke somebody with a

tie around their neck to the stage where they cannot

sing out for help, it is a rather strange proposition

that you have not intended to render them incapable of

resistance. There may be some cases where you could

distinguish between nearly stopping somebody

singing out.

MR McMILLAN: Well, that is the approach which is adopted by the

whole court in OSBORNE.

DEANE J: All I am suggesting to you is it is all rather

irrelevant in the circumstances of this case.

MR McMILLAN:  We can see what Your Honour is saying, but the

jury were given no option because the judge was

bound by OSBORNE, and he gave them a direction which

was in conformity with OSBORNE. So the jury really

had no opportunity to differentiate between; was the

placing of the tie around the girl's neck a form of
rendering her incapable of resistance by reason of
her being prevented from calling out, or, was it

generally a form of rendering her incapable of

resistance? The jury never came to that question.

MASON CJ:	If the matter had been put to the jury as you say it should have been put, I would have thought it far
more likely that the jury's response would have been
adverse to your client.

MR McMILLAN: Well, with respect, Your Honour, when one looks

at the evidence, the complainant, herself, was

still struggling, she was still able to resist this

man, she was not rendered in such a state that she

could not cope with his advances, limited as they

were. She bit him on the back after the tie had been

placed around her neck.

(Continued on page 17).

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MR McMILLAN (continuing): So,ifthejury were properly directed, as

we would contend for, they may well have found for

him on this question. There were two aspects of

OSBORNE:  that is the question which has just been

discussed; and the other one is found in the minority

judgment of Mr Justice Derrington, and that is if

there was some other means of resistance should that

be put to the jury for them to consider.

Mr Justice Derrington considered that it should

have. The majority, Justices Connolly and McPherson,

held that it was simple enough for the jury to be

given the direction which they were by the trial

judge. If they found that the choking was a form of

resistance, then that was it, whether she could do

other things with her body, We would connnend the
approach taken by Justice Derrington, in looking at

this point because, otherwise, a person may not be
able to call out because of a hand around the throat

but may well be able to beat off the attacker - their

arms can flail, their legs could be used - and we

would say that does not meet the requirements of the

section.

TOOHEY J: You may be overlooking the fact, Mr McMillan, that

the indictment was one of attempting to render the

person incapable of resistance. It was not as if,

somehow, you isolate the events without regard to

perhaps the likely consequences. Here the girl has got a tie around her neck on which the applicant is
pulling and you say that is not an attempt to render

her incapable of resistance.

MR McMILLAN:  The Crown did not put that to the jury. That

was not its case.

McHUGH J: That was the indictment, was it not: an attempt?

MR McMILLAN:  Your Honour?

McHUGH J: The indictment was an attempt, was it not?

TOOHEY J: Look at page 2 of the appeal book.

McHUGH J: Line 34.

(Continued on page 18)

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MR McMILLAN:  Yes, that is using the words of the section.

I apologize, I misinterpreted what was being said

to me. It is not the attempt to commit the offence

itself. It is the attempt which is set out in

the words of the section itself.	Yes, I do see
what Your Honour is saying.	Would that be an
appropriate time, Your Honour?

MASON CJ:  How long is the balance of your argument going

to take, Mr McMillan?

MR McMILLAN:	Some five minutes I would expect.
MASON CJ:	We will continue, Mr McMillan.

MR McMILLAN:  Yes, thank you, Your Honour. The real fault,

we say, of the ruling in OSBORNE is that it does
not give the jury the opportunity to consider

whether what was done by the accused had the

effect of rendering the person incapable of

resistance.

TOOHEY J; But do you not see by putting it that way you

are missing the point of the indictment?

MR McMILLAN:  Yes, because it refers to "attempt" and

we accept that.

TOOHEY J: If you put a tie around someone's neck, I suppose,

initially, you have not rendered them incapable

of resistance. You keep pulling on it for five

minutes until you reach the point where you have,
but the question is whether what the applicant

did was an attempt to render her incapable of

resistance.

MR McMILLAN:  Yes, that is accepted.

TOOHEY J: Well, is not the act of putting the tie around

the neck and the pulling of it, of itself, an

attempt to render a person incapable of resistance?

MR McMILLAN:  Yes, but the jury still would need to be

instructed along the lines that:  was the act

of the accused sufficient to attempt to render

that person incapable of resistance? That was

not put to the jury.

(Continued on page 19)

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McHUGH J:  But in the record of interview he was asked,

"Did you realize she was choking?" and he said,

"Yes, she was making a noise; that is when I

panic e . . k d If

MR McMILLAN:  Yes, that is what he said in the record of

interview.

McHUGH J:  The jury could find that he knew she was choking,

why was not that an attempt to render her incapable

of resistance?

MR McMILLAN: Certainly it was open to the jury, I must

concede that.	Those are our submissions,
Your Honours.

MASON CJ:  Thank you, Mr McMillan. The Court need not

trouble you, Mr Nase. The Court is of opinion

that the decision of the Court of Criminal Appeal,
in this case, is not attended with sufficient

doubt to justify the grant of special leave to

appeal. The application is therefore refused.

The Court will now adjourn until 10. 15 am next

Tuesday;

AT 12.51 PM THE MATTER WAS ADJOURNED SINE DIE

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C2T42/l/ND	2/6/89
Lansbury