Michael Aubrey (Aka Albury) v The Queen

[2013] HCATrans 110

[2013] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S2 of 2013

B e t w e e n -

MICHAEL AUBREY (AKA ALBURY)

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 9.58 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court in that matter, I appear with my learned friend, MR P.D. LANGE, for the applicant.  (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC:   Thank you, the respondent.  (instructed by Director of Public Prosecutions (NSW))

HAYNE J:   Yes, Mr James.

MR JAMES:   Your Honours, this is an application for special leave to appeal froma decision of the Court of Criminal Appeal pursuant to section 5F of the New South Wales Criminal Appeal Act.  The 5F application was brought by the prosecution in respect of a trial judge’s decision quashing an alternative count in the indictment and the Court of Criminal Appeal applied to the construction of the section under which the alternative count was brought – principles of statutory construction which, in our submission, were utterly inappropriate. 

They are principles which, if applied to those sections which have stood for many years in the language common to a number of the jurisdictions in Australia, particularly in Victoria, in South Australia and in New South Wales, under the Crimes Act, Criminal Law Consolidation Act in South Australia and so forth, would result or could result in decisions of the English Courts of recent times, fertilised perhaps by the European Union ethos, overturning as happened here, a decision of the Court for Crown Cases Reserved, involving some 14 of the most respected justices in the criminal law.

What the provision ended up as being construed as, a provision which required the malicious infliction of grievous bodily harm, was the reckless infection with a disease.  Indeed, in order to reach that conclusion, reliance was placed on United Kingdom decisions in which the term “grievous bodily harm” can be construed as serious psychological or psychiatric damage, infliction as meaning no more than cause and recklessly, taken from section 5 of the NSW Crimes Act which is, thankfully, now gone, replacing “maliciously” because of the almost inscrutable nature of that provision.

HAYNE J:   Now, Mr James, it is an interlocutory appeal?

MR JAMES:   It is.

HAYNE J:   It is an interlocutory appeal with respect to an alternative count?

MR JAMES:   It is.

HAYNE J:   Why should this Court intervene, further fragmenting the criminal process in this case?

MR JAMES:   In our respectful submission, the criminal process has not been fragmented.  The applicant properly exercised his rights at trial to object to the indictment and, under section 17 and 18 of the Criminal Procedure Act, those rights were properly exercised.  It was the Crown that brought the 5F appeal.  The Crown, of course, could have gone ahead with its principal charge at any time but it is unwilling to proceed without proceeding, also, on the alternative charge, notwithstanding, the principal charge, relies on a section specifically enacted to meet the circumstances following Clarence and, indeed, where the doubt persevering concerning whether Clarence continued to prevail as covering the construction field, was a doubt that, in practical terms, was the sort of doubt this Court has referred to in Beckwith.  

So, if the judgment stands as it does, and it stands not as a mere interlocutory sorting out, as it were, of the party’s rights at trial, it stands as a final disposition of the question at trial.  One can expect, then, that the jury would be asked to determine whether there was any intention to infect or, alternatively, whether recklessly an infection occurred.  A trial of that kind is an incitement to a jury, to take a particular course. 

It is far better, in our submission, that this question which is a question of general importance, in our submission, now and will continue to be as long as the Court of Criminal Appeal’s judgment is followed and it may well be followed, notwithstanding what the Full Court in Victoria said in Salisbury.  It is a problem now and it is a problem that will not necessarily go away.

We cannot put it any higher than that because we are seeking special leave, but we are seeking special because the mode – the approach of the Court of Criminal Appeal to construction and the effect that approach might have on the provisions of the criminal law in the common law of States, is such that it could wreak quite substantial change on the way in which trials are conducted.  That is as high as I can put that aspect, your Honour.

The wider submission, your Honour, is of course that the Court of Criminal Appeal erred and erred seriously in the way in which it approached construction.  The points we make shortly are that the Attorney’s doubt, as expressed in the second reading speeches, was not a mere uncertainty but with that form of doubt as to ambiguity, this Court had referred to in Beckwith when construing penal statutes and, I might say, saying as it did in Beckwith that the rule relating to the certainty of penal statutes is perhaps now the last refuge, but in this case the doubt was said to be arising from 14 judges, the majority of 14 judges, in a decision which had stood, at least in New South Wales and other than in Salisbury in Victoria, unchallenged for many, many years and was the basis upon which the Crimes Act was applied.

The court, in our submission, erred in failing to construe a longstanding provision of the Crimes Act in accordance with the construction placed on it for the best part of a hundred years, and in the context of the Crimes Act as a whole and the history of that Act and the provision.  At page 59 of the appeal book, if your Honours turn to the commencement of the passage following the quotation from Project Blue Sky, in our submission, what the court is saying there is that the provision always had a doubtful content, when in fact it is not doubtful in that sense at all.

Their regard to the United Kingdom decisions, in our submission, disregarded that the United Kingdom on construction, particularly of construction of this kind, has moved away from the approach – that is in recent years – from the approach that has been taken in Australia.  Further, in our submission, the Court of Criminal Appeal mistook the effect of the decision in Salisbury.  Salisbury was a case that looked to whether assault might be an alternative verdict, bearing in mind the language “inflict”.  The Victorian Full Court concluded that an alternative count of assault as being within the language was not available, but it did so in the context that it concluded that an infliction of violence of a direct kind or – or at page 57 of the appeal book is the relevant quote:

either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim –

The word “inflict”, in our submission, while not necessarily having a meaning so restrictive as to refer only to assault, is plainly in common language, in history and in context, not available to have “infect” substituted for it as a precise synonym.

We further submit that when one has regard to the whole of the Crimes Act, and the use of language in that Act, there is nothing inappropriate about having regard to extrinsic aids to construction of other sections introduced specifically for the purpose of covering the instant situation.  It was the conclusion of the Court of Criminal Appeal that the second reading speeches on the amendments to the Crimes Act to introduce specific legislation to deal with these matters did not assist in looking at the content of the offence of inflict grievous bodily harm, maliciously inflict

grievous bodily harm, either because it had a settled meaning or because it did not.  Indeed, in our submission, that is to wrongly restrict the application of the second reading speech to a consideration of the modern meaning of the provision, and to narrow it far too far.

Your Honours, the submissions that we make are set out in the written submissions.  This is not something that, in our submission, needs to be labour.  It is an approach to construction of a statute of extreme importance.  It is not merely the fact that the existing provision may now have been replaced, it is the approach to construction to other provisions too within the Crimes Act and within similar legislation throughout Australia.  Salisbury makes the point itself, it construes the equivalent provision in Victoria, and it is not to the point that courts have concluded that it is not an assault and, therefore, the word passes from meaning an assault to merely meaning some form of cause, however direct or remote.

Your Honours, I cannot take the matter anymore than I have.  We submit to you that it is not only in the context of this trial but in the construction of criminal statutes in New South Wales, Victoria and South Australia of this kind that the point has general public importance.

HAYNE J:   Yes, thank you, Mr James.  We will not trouble you, Mr Babb.

In R v Elliott (1996) 185 CLR 250 at 257, Chief Justice Brennan and Justices Gummow and Kirby noted that:

This Court has long been extremely reluctant to intervene in criminal trials by granting special leave to appeal against interlocutory decisions.

We are not persuaded that this is shown to be a case in which the Court should now intervene to consider the issues which the applicant seeks to agitate about the alternative count laid in the indictment preferred against him.  Special leave to appeal is refused.

AT 10.11 AM THE MATTER WAS CONCLUDED