Lui v The Queen

[2012] HCATrans 246

[2012] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B22 of 2012

B e t w e e n -

MALAKAI LUI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 OCTOBER 2012, AT 11.55 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please your Honour, I appear with MS K.M. HILLARD, for the applicant.  (instructed by Fisher Dore Lawyers)

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with my learned friend, MS S. CUPINA, for the respondent.  (instructed by Director of Public Prosecutions, Queensland)

FRENCH CJ:   Yes, Mr Smith.

MR SMITH:   Your Honours, this is a matter where leave is needed to file the application out of time, so I seek that leave, your Honour.

FRENCH CJ:   Is that opposed?

MR MOYNIHAN:   No, your Honour.

FRENCH CJ:   An extension is granted.  Yes.

MR SMITH:   Thank you, your Honours.  Your Honours, the special leave question said to arise in this case is whether the prosecution ought to have been permitted to change particulars of the charge against my client at such a late stage and, in fact, it was actually at the address stage in the case that the particulars ‑ ‑ ‑

KIEFEL J:   This is a post Patel argument, is it?

MR SMITH:   It is, your Honour, although can I say this?  I am sorry, your Honour, if I can observe this.  In Patel v The Queen it was really the reverse side of this argument in the sense that in that case the particulars narrowed such that much evidence became irrelevant and ought not have ‑ ‑ ‑

KIEFEL J:   But in this case the prosecution could not really avoid referring to the possibility of death by heart attack because it was raised in cross‑examination by the defence, was it not?

MR SMITH:   It was, your Honour, based on knowledge of the particulars as provided to the defence by the prosecution at the start of the trial.  So obviously enough forensic choices are made by defence counsel, based on ‑ ‑ ‑

KIEFEL J:   What was the prosecution to do then?  It was obliged to deal with the evidence and the trial judge was obliged to sum up on it.

MR SMITH:   Well, there are two answers to it. Once the particulars changed then there would need to be a consideration as to whether a fair trial could continue in the circumstances. What I mean by that, your Honour, is that crucial to liability in this case was not only what act was likely to endanger human life, but under section 7 whether my client knew of the essential elements of that offence; or under section 8 whether it was a probable consequence of the plan that something like this might happen.

KIEFEL J:   As I understand it, you do not have any difficulty with the trial judge’s direction on the evidence, do you?

MR SMITH:   Only to the extent that the particulars were widened, your Honour, and I was really relying heavily on Justice Phillip McMurdo’s dissenting judgment where his Honour picked up in his judgment the various passages the trial judge adopted from the change in particular on this heart attack issue.  His Honour ultimately held that that really meant because of the change that there was not a fair trial, according to my client.

But, to answer your Honour’s question on a secondary basis, if the case had have been litigated on that basis, sure, the summing up was correct, but it was the change which was the problem which the defence submits.  Can I submit, your Honours, that the nub the error in the majority the defence points to really is the finding that it was a remote outcome, the heart attack, and the reason why it submitted that is an error is twofold.  Firstly, Justice McMurdo, in a fulsome way, examined the evidence of Dr Milne the pathologist who at the end of the day could not exclude heart attack as cause of death.

KIEFEL J:   But, he put it as a very remote possibility, did he not?  That is, a heart attack unconnected with the attack.

MR SMITH:   I think that might have been the finding by the majority, your Honour.  There were mixed messages really sent by the doctor’s evidence in cross‑examination.  The passages are set out, your Honours, at appeal book 168, lines 10 to 40 and 169, lines 30 to 52, and importantly, at 171, line 10.  It was accepted that:

Anyone with that degree of coronary atherosclerosis, a heart attack is a realistic consideration, in that he could have a heart attack any time.

So, what I was really submitting to your Honours is that if one fully examines the state of the evidence the conclusion by the majority that it was a remote possibility really cannot be sustained.

KIEFEL J:   What do you say about the evidence of Dr Milne at the passage you just referred us to, page 171, just after line 20?

If he has had a heart attack at any time around these events, I think it is secondary to not just the asphyxia, but also any physical altercation and any psychological stress –

That does not seem to be qualified in any way.

MR SMITH:   No, it does not.  I accept that.  But, of course, can I make the observation, your Honour, that at this stage the particulars were still the restraint and the asphyxiation.  It was not the heart attack at this stage, and, as the applicant has pointed out in the submissions filed, a number of things might have happened if the heart attack had been part of the particulars.  For example, another pathologist might have been called by the defence, there may have been a different tact in cross‑examination, knowledge of the offenders of the frailty of the victim was an important consideration and because the change happened at the address stage the defence was shut out of exploring legitimate avenues of defence.

FRENCH CJ:   The majority at 159, in paragraphs [29] and [30], seems to have considered the prejudice question by looking at what would have happened if the particulars had been as were widened at an earlier stage.  What do you say about their approach?

MR SMITH:   Yes, your Honour.  Well, my submission ‑ ‑ ‑

FRENCH CJ:   Is it not an evaluative approach by the Court of Appeal which was open to it?

MR SMITH:   I have really got to say, your Honour, to sustain my argument, that it was not open. 

FRENCH CJ:   Because, otherwise there is no question of principle involved, is there?

MR SMITH:   I think that is right, your Honour.  That is why – if I can make two submissions about those findings at [29] and [30].  Firstly, the reason I took your Honours just a moment ago to the quotations referred to by Justice McMurdo, is because that is a fulsome examination of the evidence in question.  If one analyses that with respect to their Honours’ joint issue with the proposition that this was remote. 

But, secondly, can I make this submission, your Honours.  We are concerned here with criminal proof.  Likelihood or unlikelihood is a matter for the civil courts.  So, if there is a possibility which is open, even though

it might be unlikely in terms of proof, it is for the prosecution to exclude such possibilities.  If one approaches it that way, then one can see that there is a miscarriage because, as Justice McMurdo analyses, that scenario was open on the evidence, could not be excluded which was the concession by Dr Milne and, in those circumstances, the widening of the particular shut the defence out of legitimate forensic avenues of inquiry which are listed – they are, actually, all listed in the applicant’s summary, your Honours, at page 194, lines 1 through to 15.

Your Honours, the issue of the heart attack scenario was fairly important in this sense. In the sense that there was a fairly good case for my client that he was not the principal offender in the sense of the restraints. Your Honour may have seen some covert telephone calls involving Mr Johnston where he made admissions about applying the restraints. My client had gone off to search the unit after the restraints had applied. If the heart attack scenario could not be excluded, then there was a very good chance that section 7 and/or 8 of the Criminal Code would not be accepted by the jury.  In fact, Mr Galloway, who was charged under those provisions and who was not involved with the restraint at all, or touching the person, was acquitted entirely.  So, one can see that there was good chance of my client being found not guilty.  And, the change in particulars was left to the jury – oh, it could have been a heart attack, he would be liable for murder – was an important change in the case in this instance.

So, your Honours, the nub of the applicant’s submission is that the analysis by Justice Phillip McMurdo in the Court of Appeal was a rational one, a reasoned one.  He ultimately came to the decision there should be a re‑trial ordered on manslaughter and that is consistent with – there is a case in our material of the R v Watson which is a 1989 English decision, where the conviction was set aside where the old man died of a heart attack when the person entered the unit – that person having no knowledge of the frailty of that person.  So, in those circumstances, I otherwise rely on my written submissions, your Honours.

FRENCH CJ:   Thank you, Mr Smith.  Mr Moynihan.

MR MOYNIHAN:   Your Honours, the first point to be made is that there was in fact no disagreement within the Court of Appeal on the point of whether there was a miscarriage by unfairness in the process.  Your Honour the Chief Justice has already referred to paragraphs [29] and [30] in Justice Muir’s reasons, with whom Justice Fraser agreed, but also on this point Justice McMurdo agreed as well at paragraph [100] of his reasons. 

Where Justice McMurdo disagreed and dissented was in relation to an unrelated issue to one of miscarriage of justice but in relation to an unreasonable verdict point, that is on the whole of the case the Crown could not negate a particular defence.  So on the matter raised in this Court, there was no disagreement in the Court of Appeal, but importantly the Crown had to prove that the death was caused by an act done in the prosecution of an unlawful purpose and the act was likely to endanger life.  There was no dispute that the applicant was prosecuting an unlawful purpose, that being a robbery and that death occurred.

Can I take your Honours now directly to page 41 of the record and the directions here, of which there is no complaint, are repeated at the end of the summing‑up again at page 132, but it is easier to start at this point.  The Crown case was always, your Honours will see from the top of page 41, that the act was restraining the deceased in the way that he was restrained.  No one act was sufficient in the circumstances of this case.  That was made clear by Dr Milne’s evidence because any one of the matters of restraint by itself was not sufficient.  For example, the application of the octopus strap would not have been adequate if his hands were not bound because he simply would have released it.  If he was not positioned on his stomach, the necessary degree of force would not have been adequate.

So as the doctor explained, it needed to be a number of matters in combination, whereas the doctor said, multi-factorial asphyxiation because each of them was not sufficient.  But, going on, the Crown always maintained that the act that caused the death, that is the restraint, and the cause was asphyxiation.  Now, that particularisation there was based on the un‑contradicted evidence of Dr Milne, and his evidence was that the cause of death was asphyxia.  He could not isolate just one act.  It was a combination of the interrelated acts.  There was no evidence of a heart attack, and a heart attack was a possible but extremely unlikely cause of death, and secondary to restraint and importantly asphyxia.  Your Honours will see that in the passages to which my learned friend has already referred you.

Now, the applicant complains that the trial was unfair because the judge let the prosecution contend that the applicant would be guilty of murder if the particularised acts, that is, the restraint not changing, caused death by heart attack.  That of course was raised by the defence in the cross-examination of the doctor.

If your Honours will turn over to page 42 where this summary and the cases of each of the parties is succinctly set out by the learned trial judge, and your Honours will pick up at about line 10 his Honour sets out the defence case in relation to Mr Johnston, and this part of the case is adopted by my learned friend at the time in relation to Mr Lui.  It is the defence about halfway through that paragraph:

that the prosecution has also not disproved the possibility that a realistic cause of death was a heart attack brought on by the struggle rather than asphyxiation brought on by the general restraint of Mr Dwyer, and that his client is therefore not guilty of murder, but guilty of manslaughter, because the struggle of itself was not an act likely to endanger human life.

Importantly the judge makes it clear that the prosecution made a submission in response to that, and that was that, importantly, the Crown maintained that the act was the restraint as particularised.  That is made clear in line 40 on page 42, so that, of course, the restraining refers back to page 41 at lines 10 and 30 where the restraint is particularised as including the positioning of the octopus strap.  What his Honour did allow was the Crown to say that the cause of death was a heart attack.  But, then the learned judge goes on to make clear to the jury in the next paragraph that:

If you satisfied that the actions of the accused caused the death of Daniel Dwyer by means of a heart attack, but you are not satisfied that the heart attack occurred after he was restrained in a way that endangered human life, in this case, the attachment of the octopus strap to the neck and legs, then you would convict him of manslaughter.

So, his Honour made very clear that if the restraint relied on by the Crown did not cause that then they were not guilty of murder.  It is important to remember also that the defence case set out there at page 42, line 20 is based and premised entirely on confining the act to the placement, or the application of the octopus strap, when that was not in fact the Crown case.  It is also premised on a foundation that the Crown could not exclude the struggle preceding and including the restraint causing death by heart attack spontaneously or independently of the strap. 

But, the Crown case in answer was always that if a heart attack occurred it occurred after the applicant had been left, as he was, tied up, and the judge expressly directed the jury that the Crown maintained that the act was the tying him up in that fashion and that the restraining of him, including the strap, was the act that had to be one that endangered human life before he would be liable for murder if death resulted by a heart attack.

Importantly, that was correct in the context of the evidence in this case because the heart attack at that point, that is after he was tied up in that position and left, on the evidence would be secondary to all other events but including asphyxia.  So it was only an extension of the case of which the Crown had always maintained and the jury, even on that basis, would have been entitled to find that asphyxia remained a substantial or significant cause of the death. 

So in my submission, the majority was correct to find at page 157 of the record at paragraph [21] there was no prejudice in the context of Dr Milne’s evidence, because the case left to the jury was one on the basis of the original act which had not changed and that the death resulted from either asphyxiation or heart attack, that was consistent with the evidence.  At page 158, paragraph [23] on the evidence “and as a matter of common sense” the particularised acts were the “substantial” cause of death by asphyxiation or heart attack.  Finally, at page 160 at paragraph [36] to suggest that he possibly died after they left him tied up from a spontaneous heart attack or acts unconnected with the restraint, as particularised importantly, was “fanciful”.

In my submission, those findings are correct and certainly not attended by sufficient doubt to warrant a grant of special leave.  I have already, I guess, when I started, addressed the issue of the court being unanimous that there was no miscarriage in the sense that there is a claim that further cross‑examination of Dr Milne may have changed things.  But, your Honours, I have already referred to the passages where the court made clear that the only evidence was that Dr Milne, on this issue, he never resiled from his evidence that the cause of death was asphyxia and that a heart attack would be secondary to that and there was little more to be achieved by further cross‑examination, and the court made clear that it was unlikely that Dr Milne was going to say that the way the man was restrained was not a substantial cause of his death.  Those are my submissions.

FRENCH CJ:   Thank you, Mr Moynihan.  Yes, Mr Smith.

MR SMITH:   I have nothing in reply, your Honours.

FRENCH CJ:   The applicant was one of three persons involved in a robbery during which the victim died.  The applicant was found guilty of murder in the Supreme Court of Queensland.  The application for special leave alleges that the prosecutor changed his case about the cause of death.  The prosecution opened the case on the basis that death was caused by multifactorial asphyxia but later relied upon a heart attack.

The evidence‑in‑chief of a pathologist adduced by the prosecution raised only the possibility of death by heart attack.  It became an issue following cross‑examination by defence counsel.  In any event, the trial judge directed the jury that for a conviction of murder they would have to find that the restraint the victim was placed under by the accused was of such a nature as to endanger human life and that death resulted either from a heart attack or asphyxiation caused by the restraint.

The evidence was that if he suffered a heart attack it would have been secondary to the asphyxia or the struggle.  The only other possible cause of death was a heart attack unconnected to the restraint.  The evidence did not support that cause.

The Court of Appeal held that there was no prejudice to the applicant by the matter being left to the jury in this way.  We have no reason to doubt this approach, which was based upon its assessment of what further cross‑examination of the pathologist would have elicited, and would add that no question of fairness would appear to arise.  Special leave will be refused. 

AT 12.18 PM THE MATTER WAS CONCLUDED