Lucas James Walsh v The Queen

[2011] HCATrans 124

[2010] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B54 of 2010

B e t w e e n -

LUCAS JAMES WALSH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 10.51 AM

Copyright in the High Court of Australia

MR J.R. HUNTER, SC:   May it please the Court, I appear for the applicant.  (instructed by Guest Lawyers)

MR A.W. MOYNIHAN, SC:   If the Court pleases, I appear with my learned friend, MS B.J. MERRIN, for the respondent.  (instructed by Director of Public Prosecutions)

GUMMOW J:   Yes, Mr Hunter.

MR HUNTER:   May it please the Court, the prosecution put its case against the applicant and his co‑accused on three different bases.  The first was that the applicant was solely responsible for the killing, the second was that the applicant was responsible for the killing but was aided in doing so by Lynam, and the third basis was that Lynam himself was solely responsible for the killing.  The applicant’s contention is that given that the prosecution expressly contended that there was a prima facie case – indeed a case that could prove beyond reasonable doubt that Lynam was responsible for the killing – that is followed inexorably that the conviction of the applicant must be regarded as unsafe and unsatisfactory in the sense that it is unreasonable.

CRENNAN J:   Leaving aside the way the prosecution put the case, if you look at page 97 of the application book, paragraph [8] of Justice Fraser’s reasons ‑ ‑ ‑

MR HUNTER:   Paragraph, I am sorry?

CRENNAN J:   Paragraph [8].

MR HUNTER:   Yes.

CRENNAN J:   Well, what I am saying to you is, putting to one side how the prosecution opened the case, it seems from this paragraph here that there was a persuasive body of evidence that the applicant struck the blow.

GUMMOW J:   That leads his Honour to paragraph [28] which is his final conclusion – second last and last sentence on [28].

MR HUNTER:   Yes, and it is accepted that there was persuasive evidence that the applicant killed the deceased, but nonetheless it is contended that the prosecution’s approach was consistent with that evidence upon which the applicant requires, that there was a reasonable hypothesis that Lynam himself was responsible for the killing.

GUMMOW J:   You have to demonstrate some error by the Court of Appeal.

MR HUNTER:   Yes.

GUMMOW J:   You are not having a re‑run of the Court of Appeal.

MR HUNTER:   No, but what the applicant contends is that the Court of Appeal really stepped around the issue and rather simply dealt with the question of whether or not the conviction was unsafe and unsatisfactory, and my submission is that the Court of Appeal, having regard to the concession made by the Crown that Lynam could well have been solely responsible, ought to have concluded that the conviction was necessarily unsafe.  That the matter was put that way by the prosecution can be seen at page 5, at about line 32:

Mr Lynam is alleged to have committed the crime of manslaughter in different ways by the prosecution.  The first is . . . that he punched or elbowed the deceased and significantly contributed to his death.

Then there is reference to the aiding.  Then again, at page 30, his Honour, about line 39, told the jury that:

The Crown says that there is sufficient evidence for you to be persuaded beyond a reasonable doubt that either Walsh or Lynam punched or in some way inflicted a blow.

Lastly, and perhaps with the most clarity, at page 43, commencing at line 49, reciting a submission that had been made by the Crown in its address to the jury:

The Crown does say that Gregory Lynam could be responsible because of the evidence that he assaulted Joshua Mill.

Now, the applicant contends that the concession made by the Crown in this joint trial was a correct one.  There was evidence that was capable of establishing that the killing was committed solely by Lynam.  That being so, it was not appropriate, in my submission, for the Court of Appeal to simply ignore the approach taken by the Crown at this joint trial.  For that reason and because of the fact that this will govern the way in which the Crown conduct joint trials, it is an appropriate case for a grant of special leave.  May it please.

GUMMOW J:   We do not need to call on you, Mr Moynihan.

There are insufficient prospects of success on any appeal to warrant a grant of special leave, nor do the interests of justice in this case require a grant of special leave. 

Special leave is refused.

AT 10.57 AM THE MATTER WAS CONCLUDED