Lyons v The Queen

[1993] HCATrans 370

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H6 of 1993

B e t w e e n -

BARRY JAMES LYONS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 10.38 AM

Copyright in the High Court of Australia

Lyons 1 9/12/93

MR T.J. ELLIS:  May it please the Court, I appear for the

applicant. (instructed by Clarke & Gee)

MR D.J. BUGG:  May it please the Court, I appear with my

learned friend, MR J.N. PERKS, for the respondent.

(instructed by the Director of Public Prosecutions

(Tasmania))

DAWSON J:	Mr Ellis.
MR ELLIS: Thank you, Your Honour.	Your Honours, the point

sought to be raised in this application is that

there ought to be, if there is not already, a
universal and consistent rule that a sentencing
court, upon a plea of guilty, must give a discount

in the sentence which it would have otherwise given

were it - - -

GAUDRON J:  Your basic premise must surely be open to very

serious question, that there ought to be such a

rule, a general rule. Surely, it all depends on

the circumstances.

MR ELLIS: That is one stream of authority but, in my

submission, it only and demonstrably leads to

capriciousness whereas the pragmatic view which

seems to have prevailed in South Australia and now Western Australia obviates many of those arguments

which are really insoluble such as is there true contrary, Your Honour but, in my submission, the
contrition; is there an answerable case and so on.

benefits to be gained from the universality of such

a rule outweigh those.

GAUDRON J: There is certainly no necessity for such a rule.

There may be benefits; there may be not; they are

matters that are surely open to be determined in

the facts of a particular case.

DAWSON J: And, really, it comes down to this, when an

accused pleads guilty to manslaughter when he is in
danger of being convicted of murder, it is in his

own interests to do so and it hardly demonstrates

something which is particularly meritorious on his

part.

MR ELLIS: In the general administration of justice, it

would be in the interests for him to plead guilty

if he was guilty. It is also in the interests of

justice that he not chance his arm on the basis

that he might succeed or he might not but there is

no difference to him in terms of sentence if he

does.

Lyons 9/12/93

The Full Court in Victoria, although

proceeding under a statutory basis has, in Giakis

and Morton, expressly rejected as a circumstance

disentitling the discount in sentence for a plea of

guilty, the fact that the accused faced a

conviction for a more serious charge. Again, it is
a matter of pragmatism, perhaps, to an extent

overriding - - -

GAUDRON J: That is hardly a matter of principle then. If

it is a matter of pragmatism, it is hardly a matter

of legal principle.

MR ELLIS:  In my submission, it can be when the pragmatism

flows from a recognition of the utility of such a

course, and the utility, if it serves social ends

and serves the administration of justice, justifies

the pragmatic approach which says, "This is a good

thing and we will give it. We will encourage

people to plead guilty because it is good for them

to do so if they are guilty."

GAUDRON J: That is a point of view that is also open to

debate.

MR ELLIS:	I fully appreciate, Your Honour, that both points of view are open to debate and, of course, the
application seeks to have those views debated by
the Court because the States have not come up with a coherent policy in relation to this, the State courts and the Territory courts, and these are not
just regional differences, I submit. These are fundamental differences in principle which will
lead to different results in different cases,
depending on which principle is accepted. For
instance, the States which seem to say that the strength of the prosecution case should not be a factor in the giving of a discount for a plea of
guilty are opposed by States which - and in this
case is an example - purport to look at the
discount that the sentencing judge apparently gave
strength of the prosecution case and withhold the
in the sentence.
TOOHEY J:	Mr Ellis, can you point to the passages in the

judgments of the court below that you contend

demonstrate an error of principle?

MR ELLIS: Yes, Your Honour.

TOOHEY J:  I do not ask you to read them unless you wish to

but just to take us to them.

MR ELLIS: Firstly, errors of principle in the first step

was to, in my submission, resolve a "was/was not"

strong case argument from the bar table without any

judicial basis and all members of the court did

Lyons 9/12/93

that. The courts had, as I say, a ''was/was not"

strong argument.	Mr Bugg said it was strong; I
said it was not.	The court had before it -

TOOHEY J:  I am sorry, I am not following, Mr Ellis. What

was strong?

MR ELLIS:  The Crown case to which the applicant pleaded

guilty.

GAUDRON J: Certainly, the Crown case for manslaughter was

strong, was it not?

MR ELLIS:  I submit not. I submit that that is, with

respect, Your Honour, the trap that the Court of

Criminal Appeal fell into. It is easy to pick the

winner of a race after it is won. But all they had

and all Your Honours have in the application book

are statement of facts from the Crown; a plea in

mitigation, of course. The case looked strong from

there but it did not necessarily look strong. It

may not have necessarily succeeded. The accused

had a prospect of acquittal and did not have to

take a step towards it.

GAUDRON J: Both accused went to the hotel to wreak some sort

of revenge. That much must be clear.

MR ELLIS: Yes.

GAUDRON J:  One with a sword and one with something else.

Yours was with a sword.

MR ELLIS: Purely verbal revenge, they both said though,

Your Honour.

GAUDRON J: Sorry, what?

MR ELLIS: For purely verbal revenge, they both said, to

intimidate people and abuse them.

GAUDRON J:  But they took weapons and used them. Both used

them.

MR ELLIS: Yes.

GAUDRON J:	And the victim died.
DAWSON J:	As a result.
MR ELLIS:	The Crown, before it got encouraged by the Court of Criminal Appeal to say a strong case, said in a sentence at page 58 - in giving to the sentencing
judge their reasons for accepting the plea, said
this, and it was true:
Lyons	9/12/93

The only direct evidence the Crown has in relation to the accused is Mr Benjamin Neate,

who is now only seventeen, and has already

been through the experience of giving evidence

at a committal proceedings and a trial -

TOOHEY J:  Where does the court get the statement from at

the top of page 95, Mr Ellis, "He", being the
applicant, "held the deceased defenceless while his
brother inflicted at least four blows to the head

with a baseball bat and other blows to the body"?

MR ELLIS: That was the accused's admission which came to

the plea but it was not an admission that had

previously appeared before his plea, Your Honour.

It was not an admission the Crown had at his trial;

it was not an admission the Crown were entitled to

on any view of the facts before his plea.	It is
only an acceptance of the Crown facts.

TOOHEY J: But having pleaded, it was a fact upon which the

Court of Criminal Appeal was entitled to rely, was

it not?

MR ELLIS: Yes, but they were using those facts to say the

accused, when he pleaded, faced a strong case; but

they were not facts that the accused had admitted
and they were facts supported only, as the Crown
had earlier conceded, by the evidence of a then

16-year-old youth.

TOOHEY J:  No, I was not looking at in terms of whether

there was a strong case or not but the seriousness

of the applicant's actions.

MR ELLIS: Yes. Your Honour, I understand that that

really

TOOHEY J:  Can I just take you back to my earlier question.

Can you just take us to the passages that you

complain of.

MR ELLIS: Yes. I complain of that finding, that is that it

was a strong case, by Mr Justice Cox at page 95,

line 19, who said:

the likelihood of complete acquittal was

remote -

Mr Justice Wright at page 100, line 10, who said:

The Crown case as to all external

ingredients of the offence charged was strong.

Mr Justice Zeeman at page 102, line 44, who said:

Lyons 9/12/93

The circumstances of the case were such that

the respondent's plea of guilty amounted to no

more than an acceptance of the inevitable.

TOOHEY J: But if you get away from all of that - I am

sorry, had you finished that identification?

MR ELLIS: No, Your Honour. Around the same areas, each

member of the court said that in that circumstance
the plea of guilty was entitled to no weight in

mitigation.

TOOHEY J: Where do they say that?

MR ELLIS:  Mr Justice Wright, just going backwards, I am

sorry, at page 100 of the book, line 15.

GAUDRON J:	He said "significant discount".
MR ELLIS:	And also at the same page at line 9, "little, if

any, weight" .

TOOHEY J: Is that the extent of it?

MR ELLIS:  No, Your Honour. Mr Justice Cox at page 95,

line 15:

I would not consider in the circumstances of

this case that the tendering of a plea of

guilty for manslaughter, when he was facing

trial on a charge of murder, was a matter

entitling the respondent to any credit.

Mr Justice Zeeman, at page 102, line 42:

In my view there was little, if anything,

which went in mitigation. Counsel for the

respondent referred to his plea of guilty.	I
do not consider that that plea operated in mitigation.
So, all members of the court expressly found

the plea of guilty afforded no mitigation, no

reduction in the sentence which otherwise would

have been applicable. In that respect, they were

in disagreement with, as I say, the South

Australian and Western Australian positions. They

were in disagreement with the Victorian position.

They were in disagreement with the New South Wales position which is foreshadowed in Courtney-Smith,

if not already applied there. But in some

conformity with the Territories positions, although

by a different route in the case of the Northern

Territory, where the strength of the Crown case was not to the effect.

Lyons 6 9/12/93

DAWSON J: But, surely, there cannot be any rigid positions

in relation to this. Each case has to be

considered on its merits.

MR ELLIS: That is the view which is now no longer

prevailing in an evolutionary way in England,

Western Australia and South Australia, Your Honour, and no longer prevailing in Victoria, somewhat by

force of statute but also dependent on a particular

interpretation of that statute. As I say, it has

been an evolution and therefore there must be, one

would think, good reasons for it to come to that

state.

DAWSON J:	I just simply cannot accept, for my own part, that when a person pleads guilty to manslaughter in
circumstances where he does so to save his own
skin, he is entitled to credit in relation to sentence. It just does not seem to me to be a
proposition one could accept.
MR ELLIS:	Your Honour, he, at the very least, fulfilled the

social utility of avoiding a trial.

DAWSON J: But that is not why he pleaded guilty to

manslaughter, is it, if one takes a view of the

facts that seems open on these facts, namely, that

it was to his advantage to plead guilty, not to the

advantage of the system?

MR ELLIS:	I submit that that is the difficulty in applying those tests. One cannot be confident that
Your Honour is correct when you make those
observations or any judge is correct when he makes
that characterization of why - - -
DAWSON J:	I think I could be fairly confident in this case

and apparently the Court of Criminal Appeal felt

fairly confident.

MR ELLIS: But, I submit, on no judicial basis. No known

judicial technique allows the resolution of

disputes.

GAUDRON J: But surely it is judicial and it is the essence

of the judicial basis to say, "Having regard to all

the facts". In fact, that is a much more judicial

approach than some automatic reduction without

regard to the circumstances lying behind the fact.

MR ELLIS: In my submission, the fact finding that goes on

in that process is not judicially undertaken. It

is seldom, if ever, supported by evidence. It

involves the mind-reading of an accused's state of

mind and motives, and expressions of contrition may

be culturally affected; may be affected in many

ways. Not all people express their contrition to

Lyons 9/12/93

the same extent but the plea of guilty, at least, may be taken as a manifestation of contrition but

my submission is that contribution is an illusory

goal to insist on and that the plea of guilty is

the utility, is the vehicle by which mitigation can

be afforded because it serves purposes and

demonstrably serves purposes.

The Victorian position where that obtains, the

evidence from both sides, the prosecution and the

criminal bar to the Australian Law Reform

Commission, was that it was working well.

Your Honours, I submit that at the very least

there are clear grounds to argue for the benefits
of a reduction in the sentence otherwise
appropriate for a plea of guilty. There are

countervailing arguments but I do submit that the

grounds for argument clearly exist. The state of

the law in Australia is in a state of, not

disarray, but certainly disagreement as to which of

the principles will prevail.

The fountain of much of the State law or the

law expressed by the Tasmanian Court of Criminal

Appeal is Shannon which is now not being followed

in its own State. Without express overruling, it

is clearly not the law when one looks at Harradine

in that the dissenting judgment alone referred to

Shannon.

Moreover, I submit that not only is the

question an important one for the administration of

the law in Australia, it is just not just a matter

of regional differences like tariffs or which

crimes need deterring, it is a matter of

fundamental approach to a legal issue, that is, the principles of sentencing, and is raised squarely in

this case. If the Court pleases.

DAWSON J:	We need not trouble you, Mr Bugg.
MR BUGG: If the Court pleases.
DAWSON J:	We do not think that there is any error of

principle involved in the decision of the Court of

Criminal Appeal. Special leave is, accordingly, refused.

AT 10.55 AM THE MATTER WAS ADJOURNED SINE DIE

Lyons 8 9/12/93