Macartney v The Queen

[2007] HCATrans 55

[2007] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P8 of 2006

B e t w e e n -

ROBIN DAVID MACARTNEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 11.59 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Robert Young)

MR D. DEMPSTER:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions  for Western Australia)

KIRBY J:   Yes, Mr Grace.

MR GRACE:   Your Honours will appreciate that an application for an extension of time is required to be made.

KIRBY J:   Yes.

MR GRACE:   The affidavit appears at page 190 of the application book explaining the circumstances.

KIRBY J:   Yes, we have read that.  What is the attitude of the prosecution to that application, Mr Dempster?

MR DEMPSTER:   Your Honours, there is no objection.

KIRBY J:   Very well.  We will grant you the extension of time.  You proceed to the merits.

MR GRACE:   Yes, thank you, your Honour.  The primary issue raised by this application is whether it was open to the learned trial judge to find that the applicant had caused the death of the deceased:

by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life –

An antecedent issue is whether in the absence of an ability to identify the precise act or acts which caused the death it can ever be concluded that the act or acts of the accused were of such a nature. Other issues raised by the matter include the meaning of the word “likely” in the section and the necessity to divorce the act from the unlawful purpose. If I can turn immediately to the section, your Honours, section 279 of the Criminal Code (WA) 1913.

KIRBY J:   Yes.  Where do we find that conveniently?

MR GRACE:   It is set out in the judgment but it is a separate document that should have been provided to your Honours.  It is in the bundle of authorities.  Do your Honours have that?

KIRBY J:   Yes.

MR GRACE:   It reads as follows:

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say . . . 

(2)If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life –

Then, if one goes towards the bottom of the page you will see:

In the second case –

that is referring to subsection (2) –

it is immaterial that the offender did not intend to hurt any person.

This section is in identical terms to that appearing in the Queensland Code – that is section 302 – and for all intents and purposes the Northern Territory Code at section 162(1)(b).

KIRBY J:   We have had cases of wilful murder and murder before this Court since I have been here, so we are familiar with the distinction.

MR GRACE:   This is felony murder, however, your Honour, and the provisions around Australia are all different, except for those three jurisdictions that I have just mentioned.  The section has its origins in the common law notion of felony murder which was an unintentional and non‑reckless killing.  It is important to highlight in this case the Crown never relied upon felony murder in its opening address or in its closing address to his Honour.  It always maintained that the applicant was guilty of wilful murder.

At page 31 of the application book the learned trial judge made his findings, and could I take your Honours to that.  At line 31 his Honour says this:

The pathologist did not know why she died until the possibility of her having been smothered with a plastic bag was suggested by the presence of the tape and plastic at scene B, and I emphasise it is only a possibility; it might even be a probability but that is not sufficient.  It is my opinion that ‑

I will not call her name out, I will say “the deceased” -

could have died when she was immobilised by the tape and perhaps plastic was somehow put over her head during the course of a sexual attack on her by the accused when he was in an intoxicated or semi‑intoxicated state.  He may have unintentionally fatally impeded her breathing.  That is a rational inference.

However, the only rational inference to draw is that the accused man unlawfully killed [the deceased] by means of an act or acts done in the prosecution of a sexual assault on her which act or acts were of such a nature as to be likely to endanger human life.  In his alcohol‑affected condition the accused may not have appreciated that [the deceased] could not breathe properly.  That, again, is only speculation . . . 

I am further satisfied beyond a reasonable doubt that however he caused [the deceased’s] death, the accused’s act in causing her death were acts of such a nature as to be likely to endanger human life.  He had put tape over her mouth.  Whatever else he did which impeded her breathing was then likely to endanger her life and did, I am satisfied, cause her death.

Over the page ‑ ‑ ‑

KIRBY J:   Just on a factual matter, the deceased and the applicant were not friends?  They were not known to each other.

MR GRACE:   No, complete strangers.

KIRBY J:   Because the deceased was at the beach with her boyfriend and another friend and the conditions were too rough to swim.  She was waiting for them to finish when she was abducted and the evidence of the finding of the DNA consistent with the applicant’s semen rather suggests that the abduction and sexual assault was performed by your client.  That is not in issue, as I understand it.

MR GRACE:   No, that is not in issue.  Could I say this ‑ ‑ ‑

KIRBY J:   So here we have, whatever inferences flow from a sexual assault by a person who is not known to the victim, who is waiting there for her boyfriend to come out of the surf and in circumstances where there is tape put on the victim’s mouth and the tape contained a mixture of DNA of the deceased and of the applicant?

MR GRACE:   Yes.  It is important to also point out there was no allegation of rape.  This becomes important in terms of the way in which the various members of the court outline their reasons and how they constructed their reasons in trying to reconstruct how the death may have occurred.  Could I take your Honours to ‑ ‑ ‑

HEYDON J:   There is no charge of rape.

MR GRACE:   No, there was no charge of rape but there was no ‑ ‑ ‑

HEYDON J:   The trial judge seemed to make findings pointing to a sexual attack though.

MR GRACE:   Yes, sexual attack but not a rape.

KIRBY J:   It does not sound as though it is a – what, is the penetration the issue?

MR GRACE:   No.  There was an allegation that the ‑ ‑ ‑

KIRBY J:   It does not sound like a friendly encounter.

MR GRACE:   No, I am not suggesting it was in any circumstances a friendly encounter.  There was also DNA of the applicant found on one of the breasts of ‑ ‑ ‑

KIRBY J:   That is right, her nipple.

MR GRACE:   Yes, suggesting of some contact with his mouth.

KIRBY J:   So it was on her clothes and on her breast and the fact is that she died and she was waiting there for her boyfriend to come out of the surf and was not known to your client.

MR GRACE:   Yes, correct.  At page ‑ ‑ ‑

KIRBY J:   I just do not quite understand your hypothesis.  What is your theory of the case that you are propounding or that was open to the trial judge to find?

MR GRACE:   It was not open to the trial judge to find the specific act.  As he said, the question is whether under the felony murder section I have read to the Court the specific act has to be identified before one could be found guilty of murder through that route.  The trial judge found that he was not satisfied beyond reasonable doubt that the applicant had an intent to kill.  That is clear.

KIRBY J:   That is no doubt why he acquitted of the wilful murder.

MR GRACE:   Yes.  The next step – and the only step he could then go to in the murder category – was the felony murder.  He explained his reasons for finding that way.

KIRBY J:   Yes, but as Justice Wheeler pointed out, if you put tape over people’s mouths and engage in vigorous assault upon their bodies, then even children know that that can lead to people losing oxygenation and being unable to continue to breathe.

MR GRACE:   Yes, but that was not the theory that Justice Wheeler postulated as being the cause of the death.  The theory that Justice Wheeler postulated is found at paragraph150 on page 102.

KIRBY J:   Getting on top of the ‑ ‑ ‑

MR GRACE:   Getting on top of the deceased ‑ ‑ ‑

KIRBY J:   Yes, but that is relevant to what she was talking about children.  You know, children in the course of their play struggles get on top of each other or have a physical contact with another, but particularly if they hold their hand over the mouth - and one might say, especially if the mouth is taped, on one view, you know, the taping is really much more consistent with wilful murder.  But anyway, that was not found.

MR GRACE:   Yes, but what Justice Wheeler theorised was that because the expert Dr Cooke had been asked in evidence as to whether it was possible that the deceased had been asphyxiated by compression of her chest and abdomen by the applicant, she postulated that it was quite within the realms of a reasonable inference that the asphyxiation had occurred through that route.  At paragraph 150 she says this at about the sixth line in that paragraph:

It does not need medical evidence to tell any person of ordinary experience that having a person of equal or greater weight sitting or lying on one’s chest or abdomen can be an impediment to breathing.  That is a matter of everyday experience.  Children learn it during the course of their wrestling and scuffling with their peers, and it is not an unusual experience for adults, in activities ranging from sport to sexual relations.  It follows that when a person of slim to medium build, who was engaged in a violent (and no doubt terrifying) struggle and has her mouth covered with tape, then has her breathing further impeded by her solid assailant sitting or lying upon her, the act of her assailant in sitting or lying upon her is an act which is objectively such as to give rise to a real, and not remote, chance that her life would be endangered.

KIRBY J:   There was another factor; she was either chewing gum or had a lolly in her mouth and that is the sort of thing that would cause a person to choke if she has still got it in her mouth when the tape is put over her mouth and this physical attack on her is made, whether it is a rape or not.  I just do not really see what reasonable possibility has not been excluded.

MR GRACE:   Can I just develop the argument in relation to that paragraph in Justice Wheeler’s judgment.  It is submitted it is fallacious on two bases.  Firstly, it is speculative and has no foundation in the evidence.

KIRBY J:   You say it is speculative, but not everything can always be proved.  It is in the nature of crimes that they are often done in secret or in circumstances where the aim is that they not be revealed and therefore inference is a necessary part of a jury’s, or in this case a judge’s, process of reasoning. 

MR GRACE:   Perhaps that begs the question because, as I indicated at the outset, the primary issue is whether a specified act has to be identified in order for one to be convicted of murder through the felony murder route.  Now, it is a very rare occasion that someone is indicted or found guilty of felony murder anywhere in Australia, and the state of the authorities is not such as to have dealt with this particular issue at the present time.  This leads me to the second issue which ‑ ‑ ‑

KIRBY J:   Why is it not of the nature of taping over a victim of a violent and unwanted sexual assault in circumstances where she might, as she did, have something in her mouth and where she is then unable or has difficulty in breathing of such a nature as to be likely to endanger human life?

MR GRACE:   Because his Honour found that that was not the cause of death.

KIRBY J:   It would be one of the contributing factors to the death.

MR GRACE:   It may be, but it is not ‑ ‑ ‑

KIRBY J:   If the cause of death is asphyxiation, the normal way human beings get oxygen and, in particular in the course of violent activity, is through their mouth.

MR GRACE:   Yes, but his Honour did not so find.  His Honour found it was through another act or acts unspecified, unknown.  Justice Wheeler speculated, in my submission, that it may have been him sitting or lying on her chest.

KIRBY J:   It would not have helped to have your mouth taped, especially when you have got chewing gum in it. 

MR GRACE:   Of course not.

KIRBY J:   The real issue, you see, is whether there is a miscarriage of justice and if one looks at the facts of this gruesome matter, it does not seem to be a miscarriage of justice to find, as the trial judge did, that the combination of circumstances involved the offence with which your client was charged.

MR GRACE:   Could I answer that question by going back to the second basis I say how Justice Wheeler misconceived the issue.  What she did was she merged the terms of the act and the unlawful purpose together to reach the result that she obtained and that is made clear and emphasised by Justice Gibbs’ comments in relation to the identical Queensland provision in Stuart.  Could I take your Honours to Stuart (1974) 134 CLR 426 at 438. Halfway down the page you will see a paragraph commencing with the words “the third element”? The third element is what we are talking about here:

The third element in s 302(2) has sometimes occasioned difficulty.  It appears clearly from the words of the section, and it has been laid down by this Court, that the act of the accused which caused the death cannot at once constitute the dangerous act and the unlawful purpose:  “The paragraph relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful.”

Quoting Hughes v The King which was a 1951 High Court decision:

The facts of Hughes v The King clearly exemplify this principle; the dangerous act causing death was a violent assault but the accused had no purpose other than to assault the deceased.  If s 302(2) had applied in that case it would, as Philp J said in Reg. v Gould and Barnes, “make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act which, in fact, was likely to endanger human life”.

The point I make here is that it is submitted Justice Wheeler fell into the trap of marrying the assault which was the sexual assault, lying on top of her perhaps putting his mouth to her breast, with the unlawful purpose, the sexual assault.  The act and the unlawful purpose were not divorced as they are required to do, as the authority of Stuart requires.  That is the fallacy and the reasoning.  On that point can I take you to what Chief Justice Barwick said in Ryan 121 CLR 205 some years earlier. At the bottom of page 217 his Honour said:

Ordinarily, the identification of the act causing death gives no difficulty, a circumstance which may tend to obscure the logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s 18 are to be satisfied.

Now, if one goes to the dissenting and what is submitted the compelling dissenting reasons of the learned President, Justice Steytler, one will see the analysis that Justice Steytler came to set out in quite logical and after some sequential reasoning at page 94 of the application book at paragraph 122.  About seven lines down from the top of the page Justice Steytler said:

Unless it can be concluded that every reasonably conceivable act that, consistently with the trial Judge’s findings, might have caused [the deceased’s] death satisfied each of those elements, the appellant could not properly be convicted of murder.

In my opinion, that conclusion cannot safely be reached. Even if it be assumed that the act, whatever it was, was a willed act and that it was done in the prosecution of an unlawful purpose, and even if it be assumed, also, that the word “likely” in s 279(2) means a “substantial” or “real and not remote” chance, rather than “probable”, I am unable to accept that it was open to the trial Judge to conclude that, whatever the act was, it must have been one of such a nature as in fact to have been likely to endanger human life.

Now, it is submitted that that is a valid and eminently acceptable approach to the circumstances of this case and the factual scenario that was presented to the learned trial judge.  It is important to note that the learned trial judge ‑ ‑ ‑

HEYDON J:   What are the possible conceivable acts that are in consideration?  One is the tape alone, another is the tape plus sitting or lying on the victim’s body.  What other possibilities are there?

MR GRACE:   Other possibilities could be – and this was suggested, I think, in the course of argument before the court below – that there was some breaking away at some stage by the deceased and the applicant chased after her and fell on top of her.

HEYDON J:   Justice Wheeler said that was remote.

MR GRACE:   Justice Wheeler did say that.  There is also, as Justice Steytler said, an infinite variety of other possibilities that may ‑ ‑ ‑

HEYDON J:   What are they?  If they are infinite we must be able to name a few of them.

MR GRACE:   His Honour did not articulate them.

HEYDON J:   But what do you say they were?

MR GRACE:   That is one of them I just mentioned, that Justice Wheeler said was remote.  Another may be simply some unexplained basis upon which the deceased panicked and somehow held her breath and, coupled with the tape over her mouth, did not breathe.  That is another.  I wanted to raise the issue of the differing interpretations of the word “likely” which were not considered by the ‑ ‑ ‑

KIRBY J:   Justice Steytler has expressed the range of views that might be taken of that word.

MR GRACE:   Yes.  If your Honours please.

KIRBY J:   The Court does not need your assistance in this application, Mr Dempster.

In this matter the applicant was out of time.  However, no objection was raised to the extension of time and the Court extended time so that it might hear the application which it has proceeded to do.

The applicant was convicted of murder but acquitted of wilful murder at a trial in the Supreme Court of Western Australia conducted by Justice Wallwork sitting alone.  There was no doubt that the victim had died, apparently following a serious sexual assault.  The applicant’s DNA was found in semen collected from the victim’s clothing and from her breast and nipple.  The victim had been at a beach with her boyfriend.  However, she had opted not to surf because of rough conditions of the sea.  On the face of things she was just waiting for her friends to finish swimming.  She was a stranger to the applicant. 

Justice Wallwork could not conclude to the requisite standard exactly how the victim had died but it was apparently by asphyxiation.  The circumstantial evidence included pieces of duct tape of a type used by the applicant, a portion of which had on it a mixture of DNA from the victim and the applicant.  In addition, traces of the victim’s saliva were found on chewing gum attached to the duct tape. 

The issue which divided the Court of Appeal is whether it was open to the trial judge to find that the act causing the death of the deceased fell within the offence charged of which the applicant was convicted under section 279 of the Criminal Code (WA). Had the trial judge excluded all of the precise acts which had caused the victim to die? The applicant adopted the reasoning of Justice Steytler, the President of the Court of Appeal, dissenting. The prosecution adopted the reasoning of Justice Wheeler and Justice Roberts-Smith.

The trial judge found, as was plainly open to him, that the victim had been abducted and sexually assaulted by the applicant, in the course of which conduct the applicant had fixed a tape across her mouth.  This fact, together with the dangers of interference with oxygenation by the course of a violent sexual assault, make the view of the majority the preferable one.  We are not convinced that an error of law or of analysis has occurred in the Court of Appeal.  Nor are we persuaded that a miscarriage of justice has occurred.  The applicant does not enjoy reasonable prospects of success. 

As Justice Wheeler pointed out, “children learn of the danger of the impediment to breathing in the course of their wrestling and scuffling with their peers.”  If the mouth of a person, such as the victim, was covered with tape in circumstances where she was being assaulted, had chewing gum in her mouth, and was subjected to an unwanted sexual attack, the danger of asphyxiation was obvious.  In this case it was therefore open to the primary judge to have excluded all other reasonably available possibilities.  The other possibilities, such as were postulated, are remote and unconvincing.

Special leave is refused.

AT 12.24 PM THE MATTER WAS CONCLUDED