Miller v The Queen

[2015] HCATrans 296

[2015] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A12 of 2015

B e t w e e n -

EVERARD JOHN MILLER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 NOVEMBER 2015, AT 12.18 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friends, MR A.L. TOKLEY, SC and MR G.N.E. AITKEN for the applicant.  (instructed by Noblet & Co)

MR A.P. KIMBER, SC:   May it please the Court, I appear with my learned friend, MR M.E. BOISSEAU, for the respondent.  (instructed by Director of Public Prosecutions (SA))

KEANE J:   Yes, Mr Bennett.

MR BENNETT:   Your Honour, the issue is whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence under section 353 of the Criminal Law Consolidation Act, which applies those tests, bearing in mind the nature of the offence, particularly its mental elements and the applicant’s heavily intoxicated condition. 

There was no challenge made to the judge’s direction to the jury.  There was a challenge before the Court of Criminal Appeal to the direction on intoxication, but that was abandoned.  I should mention to your Honours – I know it is probably unnecessary – that in the summary that has been provided to your Honours, the summary erroneously states that the ground that was abandoned is the ground of our appeal, or of our application, which it is not.  Our sole basis is that having regard to the degree of intoxication and the mental elements that must – it was unreasonable for the jury not to have a reasonable doubt.

KEANE J:   Now, was this contention argued before the Court of Criminal Appeal?

MR BENNETT:   Yes, your Honour, and I can give your Honour the passages that do that.  If your Honours go to the supplementary book, the supplementary book of materials, it is both in our written submissions and in our oral submissions.  In the written submissions, if your Honours go to page 9, paragraph 34:

The verdicts are unsafe and unsatisfactory and cannot be supported by the evidence.

Then, the particulars follow – and 34.3 is the reference to intoxication, which it then goes into some detail of, and it is summarised at 34.3.5 on page 10 that:

The appellant’s high blood alcohol reading undermined his capacity to enter an agreement that caused serious bodily harm or contemplate that serious bodily harm would be inflicted.

That is repeated in paragraph 39 on page 11, summarising what goes before, that:

It was not open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt -

In our oral submissions before the Court of Criminal Appeal, your Honours will see that at page 14 of the supplementary book, line 20, there are some details of the blood alcohol reading and then, at page 18, that leads me to the final ground, namely that the verdict is unsafe and unsatisfactory.  Then on page19, more importantly, in my submission, the evidence strongly supported a finding of intoxication, et cetera.  That is then discussed in some detail in the following paragraphs.

So it was squarely raised and the Court of Criminal Appeal did not deal with it.  If I could just show your Honours what it did.  At page 372 of the application book, at paragraph 125, they refer to the complaint “about the Judge’s direction regarding intoxication” and correctly say that “was abandoned”.  Then they say:

The final submission . . . was that the verdicts [were] unreasonable or cannot be supported having regard to the evidence.

Then they go on to refer to the evidence but not at all to the question of intoxication.  They just say the facts are capable of doing it.  There is no reference to the proposition, which is our central proposition and was one of our major propositions, that the evidence of intoxication – which was not by any means mild intoxication, as I will show in a moment – meant that there must have been a reasonable doubt as to the ability to form the mental elements and it was unreasonable not to do so.

NETTLE J:   You mean to form the specific intent or at least to contemplate that his co‑accused would?

MR BENNETT:   Yes, your Honour.  It is a little more than that.  The tests in relation to extended criminal enterprise – a joint criminal enterprise ‑ ‑ ‑

NETTLE J:   I understand.  But what you are putting is that he was so intoxicated that he was incapable of foreseeing the possibility that his co‑accused would form the intent to kill or inflict GBH?

MR BENNETT:   Yes, your Honour, either that or of agreeing to be a party to that, yes.  It is either agreement or foreseeability under the various tests.  The issue under section 268 of the Act has fallen away because the Crown accepts that the combined effect of the subsections is that the common law applies in relation to the effect of intoxication.

That, as your Honours know, was summarised by Sir Garfield Barwick in R v O’Connor 146 CLR 64. I will not take your Honours to that; it is familiar law that where there is a mental element in the offence, either because of the need for mens rea or because of a specific mental element, intoxication is capable of removing the capacity to commit the offence.

The facts are in a fairly small compass.  I will summarise them in a very general way.  On 12 December 2012, there was an altercation in a laneway in Elizabeth Park, an outer suburb of Adelaide, between two of the accused, Betts and Presley, and two white men, Hall and King.  The two white men assaulted the two Aboriginals and called out offensive racist epithets.  Betts and Presley then went to Presley’s home just around the corner, where Smith and Miller, my client, were waiting for them to return from buying some marijuana. 

Betts said words to the effect that he had been jumped in the alleyway and struck by three white fellows; he had a cut lip.  Presley said words to the effect “Let us go back and see what the problem is”.  Presley collected a baseball bat.  At some stage, probably after they left the house, someone collected a shovel, and Smith at some stage got an empty soft drink bottle, which was never broken, and Betts had or collected a knife.

Now, other than inferences from the size of the object, there is no evidence that the applicant saw any of the weapons or had any himself; no suggestion that he took any part in the resulting melee, in the course of which Betts stabbed Hall with the knife, resulting in his death, and King was hit with the baseball bat and injured.  The case, as I say, was put on the basis of joint criminal enterprise and extended joint criminal enterprise, which had the mental elements.

In each case, the relevant issue was whether the degree of intoxication was such as to prevent the formation of the agreement or contemplation of bias.  If I can just very briefly take your Honours to the evidence of Dr Majumder, who was a pharmacologist, in relation to intoxication.  That evidence is summarised by the trial judge at pages 178 to 185 of the application book.  I will not take your Honours to it in detail, but your Honours see in the middle of 178, there is a reference to Dr Majumder, and then on the next page, there is detail of the blood test results and the calculation back from that time to the relevant time.  At line 30, on page 179, her estimate was that it was:

0.292%, with a possible range between 0.241 and 0.342% –

which, of course, is many times the 0.05 driving limit.  There is a reference to variation in the rate of elimination which could bring it up, at the bottom of that page, to “0.272% and 0.322%”.  I will come to the question of alcohol after the incident.  Now, at page 180, the trial judge says at line 30 that:

A blood alcohol concentration of Mr Miller’s estimated level would equate to between 14 and 17 standard drinks being consumed.

Then, line 40:

these levels of alcohol concentration . . . would expect a person with that sort of blood alcohol concentration to have slurred speech, glazed eyes and a staggering gait.  She said that this level can result in unconsciousness, so if a person is conscious at this level, that would indicate some level of tolerance on their part.

She said decision making and thinking may be significantly impaired at the estimated level . . . such levels would affect attention and concentration as well.  She said a person with that level of blood alcohol would not be able to engage in complex conversation.

. . . 

Alcohol can increase aggressive behaviour and reduce inhibitions . . . the levels estimated for Mr Miller at this time may be too high for him to have acted aggressively.  He would in fact have been staggering and may have fallen over.

She then goes on to talk about diazepam and its effects, and at the top of 182, line 10:

However, she said it is possible that the presence of diazepam and nordiazepam could have increased the effects of alcohol.

Then, further down, she refers to cannabis, and in the last paragraph on the page:

She told you that when alcohol and cannabis are taken together, cannabis can potentiate the impairment caused by the alcohol consumption.

So you have not only got these 14 to 17 drinks, you have got it made worse by the diazepam and the marijuana.  Then, at the top of 183:

She said the combined effects of everything ingested by Mr Miller at 11 p.m. on 12 December 2012 could be assumed to have caused significant intoxication.  She said it is possible that Mr Miller was staggering, and had problems with foresight and planning.  She said Mr Miller would predominantly have been under the influence of alcohol, but diazepam and cannabis may have worked to potentiate the effects of alcohol.

At the bottom of the page:

at levels of 0.2 –

which is, of course, the lower limit here –

a person would appear intoxicated.  They may sway and have slurred speech.  A person at this level may have appreciable deficits in terms of their perception of events occurring around them.  Their decision‑making processes would be impaired to some degree –

and so on.

It is virtually impossible to provide an accurate estimate of the effects of alcohol and drugs in a person’s system 23 hours prior to their blood sample being taken.

So that is the intoxication we are talking about here.  The Crown makes something of the fact that there was a suggestion of alcohol being consumed after the incident and before the blood test, but that has a number of problems.  If your Honours go to page 238, where the trial judge refers to it, at line 12:

You will bear in mind the evidence of Mr Willis and Tamika Wanganeen, which might permit you to infer that Mr Miller drank beer and spirits after the incident in Grant Street.  Of course, Ms Wanganeen did not know Mr Miller but the prosecution submits you can infer that the person with Mr Betts . . . must have been Mr Miller –

So it is fairly uncertain evidence - the purpose of removing a reasonable doubt, but the summing‑up goes on: 

Dr Majumder gave evidence that using a count back, assuming a blood alcohol level –

she calculated it to –

a range of 0.272 to 0.322.  In cross‑examination, Dr Majumder reduced that range to 0.141 to 0.242 on the assumption that Mr Miller had consumed five standard drinks subsequent to 11 p.m.  She gave evidence that even at that lower level, he would have been affected by the consumption of alcohol.

So, it is even if one could accept that evidence as dispelling a reasonable doubt which, we submit, one could not, it does not reduce it sufficiently to do that. 

NETTLE J:   What verdict do you say that the jury should have brought in?

MR BENNETT:   Not guilty, your Honour.

NETTLE J:   I see.  You are not contending for a manslaughter verdict?

MR BENNETT:   In the alternative, as a fall‑back.  I will come to that later.

NETTLE J:   It was not left to them, was it?

MR BENNETT:   No, your Honour.

NETTLE J:   You do not criticise the directions for failure to leave it to them?

MR BENNETT:   No, your Honour.  We submit that special leave is required by the justice of the case.  You have a heavily intoxicated man whose state is the equivalent of 14 to 17 drinks plus the diazepam plus the marijuana.  He is waiting for some acquaintances to return with some more marijuana.  They arrive and say they have been attacked and they are returning to see what the problem is. 

The prosecution places great emphasis on that but we would say this, that it is facile to take those words and say well, with the benefit of hindsight, we know what he meant.  That, in my respectful submission, would be unfair and facile.  One cannot use hindsight.  The words are capable of at least five meanings as to possible course of action - one is to return for purely investigational purposes to see who it is and identify them and so on.  That is the literal meaning of the phrase, of course.

KEANE J:   Taking the weapons along with them on the basis that it is a reconnaissance in strength.

MR BENNETT:   Well, your Honour, the only weapon that can be attributed to deemed knowledge is the baseball bat.  There is no evidence that we knew of the knife and/or that it was visible.  The baseball bat could, of course, have been for defensive purposes.  There had been a previous attack.  One simply cannot draw the inference that from the eyes of someone with that degree of intoxication that he would have the ability to say they are taking a baseball bat and going back to a place where there is likely to be a further altercation and someone is likely to be seriously injured. 

What happens is, is that he is in an intoxicated state.  He accompanies them, does nothing else, takes no part in it – on the evidence.  No one said he took any part in it.  The judge described him as a “blow‑in” at page 330, line 14.  It is an expression I had not heard before, but one can see what its meaning is.  At page 330, at line 14 his Honour says:

However, you were simply a blow‑in.  You did not know the other members of the group well.  You were not present during the first encounter with the victims.  Your conduct in going down to Grant Street was impulsive.  You were under the influence of both drugs and alcohol at the time.

We would submit that a person in that situation, with that degree of intoxication, taking no active part finds himself convicted of murder is a serious injustice particularly when the Court of Criminal Appeal does not consider the arguments that I have put.

I was just coming back to the words “see what the problem is” and I said the first possible meaning was that it was purely investigational.  A second is that they were simply going to chase them away from that area.  A third is that they were going to confront them verbally.  A fourth is that they were going to inflict minor injury and the fifth is that they were going to inflict really serious injury or death. 

The degree of reasoning to work out if the last one is a serious possibility would require something more, we would submit, than the capacity which my client had.  A reasonable jury could not fail, in my submission, to have a reasonable doubt as to his capacity to form the necessary mental elements of the offence.

For those reasons, it is our submission that special leave should be granted.  If it is granted, of course, there are a number of possible courses your Honours can take.  One is to allow the appeal instanter and set aside the verdict.  One is to set the matter down for argument as a full appeal and one is to send it back on the basis that it was not considered by the Court of Criminal Appeal.  We would submit that the first two are more appropriate

than the third, bearing in mind that your Honours have all the material before you and it is a short, simple submission, as I indicated.  May it please the Court.

KEANE J:   Thank you, Mr Bennett. Yes, Mr Kimber.

MR KIMBER:   If the Court pleases.  In the respondent’s submission, this is not an appropriate case for a grant of special leave.  In my submission, it is clear from the judgment that the court understood the appropriate principles as set out by this Court in cases such as Libke and M v The Queen.  Even if there is an obligation or was an obligation to expressly refer to the evidence given by the expert, in my submission that evidence, even of itself, did not compel a finding that the accused could not join in the relevant agreement or could not foresee that someone, that he was part of an agreement with, acted with the relevant intent. 

I will develop those submissions in a moment, but can I just correct some matters or put into context some matters that have been put by Mr Bennett.  Manslaughter was left as an alternative verdict for Mr Miller ‑ ‑ ‑

NETTLE J:   It was not left, though, was it, Mr Kimber, on the basis that the accused was so drunk as to be incapable of foreseeing that his co‑accused would form specific intent as opposed to general intent?

MR KIMBER:   Your Honour, I would have to check that.  It was my understanding of the summing‑up that the issue of intoxication was specifically left ‑ ‑ ‑

NETTLE J:   It was left on the grounds of acquittal – that is to say, if the co‑accused was incapable of forming specific intent it would go down to manslaughter and if the co‑accused were capable of forming general intent, it would go down to acquittal.  But what was not left was that if the accused, the applicant in this case, lacked the capacity to foresee the possibility of the co‑accused forming specific intent, then it may come down to manslaughter.

MR KIMBER:   Would your Honour just pardon me a moment?

NETTLE J:   Certainly.

MR KIMBER:   I will just check more carefully.  If the Court goes to the summing‑up at appeal book 240, to begin with, and the paragraph beginning at line 32:

In order to convict Mr Miller of manslaughter ‑ ‑ ‑

NETTLE J:   What is the page – 240, was it?

MR KIMBER:   Page 240.

NETTLE J:   Yes, I have that.  I see that, but after that paragraph, which ends at about line 31, there is no putting of the alternative of manslaughter by reason of being unable to foresee the possibility of the co‑accused forming specific intent but only basic intent.

MR KIMBER:   I might be missing your Honour’s point, but then one goes to the very next paragraph at application book 241, at about line 12 on that page in the paragraph “In this context”.

NETTLE J:   Yes.

MR KIMBER:   What the judge is dealing with in that paragraph is the impact of intoxication upon whether he was part of a relevant agreement, and consideration of whether he was part of an agreement to commit an assault that was objectively dangerous - unlawful and dangerous act manslaughter.  In my submission, he deals with in the summing‑up both the principle, perhaps not having the intent at all, but also the issue of Miller only being a party to an assault, and only being a party to an assault because of his intoxication.

Can I take the Court to application book 357 in the judgment of the court below, and in particular in paragraph 67, where the court sets out accurately the relevant principles.  Among those principles is the appellant in the court below had to establish that:

the jury must have entertained a doubt about guilt.

Now, when one goes to later in the summing‑up at application book 372, paragraph 125 is, in my submission, not irrelevant because it demonstrates that the court was cognisant of the fact that intoxication had been a relevant issue at trial for Mr Miller, because there had been an abandoned ground of appeal with respect to the directions about that issue.  Immediately thereafter, the court then turned its attention to whether the verdict was unsafe and unsatisfactory.

Could I take the Court to the actual evidence, and touch upon some aspects that are among those pages that Mr Bennett took the Court to.  As this Court well knows, the test is whether the jury must have entertained a doubt about guilt.  Could I take the Court to application book 181, bearing in mind the relevant issue here is impact upon state of mind.  The evidence was no higher than, at line 1:

decision making and thinking may be significantly impaired –

At the middle of the page, at about line 25, in the paragraph beginning –

Alcohol can increase aggressive behaviour and reduce inhibitions.

There were key aspects of the evidence of Dr Majumder which actually assisted the prosecution case, because they explained why anyone who was so intoxicated might act so aggressively.  Then, at application book 183, within the first paragraph, again in the second sentence, the evidence went no higher than possibilities and the possibility of a problem with foresight and planning, and at the very bottom of the page at line 40:

A person at this level may have appreciable deficits -

Over the page at application book 184, about line 15 or 16, their opinions – these are the opinions of Dr Majumder – were expressed in terms of possibilities:

but she conceded observation of specific person at the time of intoxication is also important.

Now, I do not suggest that there were specific observations during the course of the attack of the intoxication of the applicant Miller, but it is important, in my submission, in understanding the facts of this case that this is not an example of a fight suddenly breaking out in the presence of an intoxicated man. 

On any view, Mr Miller attended the scene of where the victims were, in company with at least three other people.  One cannot brush aside the weapons that were held by those that Mr Miller was with.  They were not weapons that could be hidden.  One was a baseball bat, one was a shovel that was used at the scene on the deceased, and another was a knife, its total of 30 centimetres - the knife which caused the fatal injury.

KEANE J:   Mr Kimber, one can see some force in what you are saying.  Speaking for myself, I would feel more comfortable about the sort of analysis that you are carrying out if we saw it reflected in the reasons of the Court of Criminal Appeal.  In relation to paragraphs 126 and 127 at pages 372 to 373 of the application book, to which Mr Bennett took us, these matters, these aspects of the evidence and this analysis does not appear at all, just as the case that the verdict was unreasonable on the basis of intoxication does not seem to be adverted to at all.

MR KIMBER:   Your Honour, I do not agree, with respect, to the first aspect of what you are putting because, with respect, within paragraph 126, the Court refers to:

The facts as recorded were not challenged on the appeal by Miller’s counsel. 

They are the facts as summarised at considerable detail at the beginning of the judgment from paragraph 3 all the way through until about paragraph 44 when we deal with Miller.

KEANE J:   Where does the court analyse the issue as to capacity, bearing in mind the evidence of intoxication, in relation to the unreasonableness of the verdict?

MR KIMBER:   That was the second aspect of what I understand your Honour to be putting to me with which I have to agree and that is that the court does not anywhere in its summary of facts, or analysis of the reasonableness of the verdict – if I can put it that way – refer to the expert evidence given by Dr Majumder, which I also have to concede was expressly relied upon in the court below in submissions, or before the court below in submissions on this very issue.

In my respectful submission, if this Court were even to take the view that notwithstanding that the court was aware that intoxication had been an issue at the trial – we know that in my submission from paragraph 125 – that there is a risk that they overlooked it when dealing with the issues in the very next two paragraphs, this appeal would not enjoy adequate prospects of success for the reasons that I have been taking the Court through because the test is whether the jury must have acquitted because of this evidence. 

Even taking the expert evidence at its highest, it only raised a possibility of a relevant impairment upon mental state – if I can use that shorthand.  Also, one has to consider what the accused actually did.  He attended the scene with others.  He had no apparent difficulty doing that.  It was put before that there was no evidence of his involvement.  The evidence undisputed in the court below was that the blood spatter on his shoes put him no more than a metre and a half away from the deceased when blood was obviously moving around from the deceased. 

All of the witnesses at the scene who made observations said that as many as four or five, five or six Aboriginal mean were involved.  There was no evidence that there was any Aboriginal man who came on the scene who was standing back and not physically participating at the scene.  I emphasise again, we are not dealing here with a spontaneous situation of

violence in which an intoxicated man is caught.  We are dealing with an intoxicated man who chooses to go from one house to the scene with others, who physically participates at the scene because he has the blood spatter on his shoes, as the court finds, and, also, has enough capacity to leave with the others and return to the house at the very same time.

On the face of it he is not behaving like a man who will have a problem with forming what are pretty simple agreements or intentions - an agreement to at least fix GBH, bearing in mind the weapons held by others, at least with the baseball bat and the shovel, plainly must be obvious.  They were not difficult to be seen by the witnesses at the scene, and this man was, given that he was within one and a half metres, on top of the deceased, in effect, at the time of the assault.  These are not, as a matter of common sense, complex agreements to reach, nor complex things to foresee in the particular circumstances of this case.  If the Court pleases, they are my submissions.

KEANE J:   Thank you, Mr Kimber.  Yes, Mr Bennett.

MR BENNETT:   If the Court pleases.  Your Honours, my learned friend says we have to demonstrate that the jury must have come to a particular conclusion.  That is close, but what we say is a reasonable jury must have had a reasonable doubt, bearing in mind the intoxication evidence.  My friend referred to some passages in the summing‑up which used the words to the effect of “maybe this” and “maybe that”.  The actual evidence, which is not before your Honours, although I can arrange for it to be copied, at page 1550 of the transcript was in more direct terms.  The witness said this – “The estimated levels, as I said, are quite high.  They are very high.  At these levels, the thinking process, decision‑making process”, will – my emphasis – “be significantly impaired.  The person with these blood alcohol levels would not be able to engage in complex conversations and would not be able to – would be able to only understand some simple phrases, and would be able to perform very simple tasks.  Also, these levels would affect attention and concentration of a person intoxicated.  At this level, a person intoxicated would have problems concentrating on things, and would have short attention span”.

So it is not put on the basis of “maybe”, although some of the judge’s summary used that.  The evidence, in fact, was stronger.  I can have that made available to your Honours.  I apologise that it is not before your Honours.  I did not realise that submission was going to be made.  In relation to the shovel, I think the evidence was that that was picked up later.  It was not taken on the way to the ‑ ‑ ‑

NETTLE J:   It was found close by, was it not?

MR BENNETT:   Yes, yes.  Your Honours, when one puts those matters together, we would submit our submissions remain intact.  We would submit that there should be a grant of special leave.

KEANE J:   Mr Bennett, the Court is minded to grant special leave.  Looking at your draft notice of appeal at 386 of the record, paragraph 3 would not seem to be warranted as the subject matter of an appeal.

MR BENNETT:   I am sorry, paragraph ‑ ‑ ‑

KEANE J:   Page 386, paragraph 3.  It seems that that has effectively been abandoned.

MR BENNETT:   Yes.  I do not press paragraph 3, your Honour.

KEANE J:   There will be a grant of special leave, and it will come on for a hearing in the ordinary course before the Full Court.  Leave will be granted on the basis that it applies to grounds 1, 2 and 4 of your draft notice of appeal.

MR BENNETT:   If the Court pleases.

AT 12.58 PM THE MATTER WAS CONCLUDED