Miller v The Queen

[1988] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P24 of 1987

B e t w e e n -

GRANT WAYNE MILLER

Applicant -·

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

Miller

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 AUGUST 1988, AT 10.16 AM

Copyright in the High Court of Australia

ClTl/1/RB 1 4/8/88

MR G.P. MILLER, QC:  May it please the Court, I appear with

my learned friend, MR R.A. MAZZA, for the applicant.

(instructed by Mazza McCallum & Robinson)

MR M.J. MURRAY, QC: If it please Your Honours, I appear

with my learned friend, MR L. ROBBINS, for the

respondent. (instructed by the Crown Solicitor

for Western Australia)

MASON CJ:  Yes, Mr Miller.

MR MILLER:  May it please the Court. Your Honours, first

I must ask for an order to enlarge the time of

this application. It arises in this way: the

decision of the Court of Criminal Appeal was given

on 24 August; 21 days expired on 14 September;
the application was filed on 8 October, some 24 days

out of time. I understand that the Crown does not oppose the application for enlargement and the affidavit of Mr Mazza indicates that it was

primarily difficulties in obtaining legal aid thqt

occasioned it.

MASON CJ:  You can proceed with the special leave aspect

of the cas~.

MR MILLER: May it please the Court. Your Honours, may I

also seek leave to amend the draft notice of appeal

which is at pages 252 to 253 of the application
book and may I hand up a number of copies of the

proposed amended draft notice of appeal, a copy of which was faxed to the Registrar on 27 July?

MASON CJ:	We all have that, Mr Miller.
MR MILLER:	May it please Your Honours, it deletes from what

was the original draft notice of appeal a number

of grounds. And likewise, Your Honours, it would

require a consequential amendment to the application

for special leave itself which appears at page 245

of the application book because that related to

a number of grounds and I have made the necessary

amendment to that if I may seek leave to amend

it accordingly.

MASON CJ:  Yes.

(Continued on page 3)

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MR MILLER:  I hand up a number of copies and, at the same

time, Your Honours, may I hand up the outline

of argument of the applicant. Your Honours,

the applicant in this case was charged with the

offence of willful murder. The applicant was

charged with the wilful murder of a woman named

Grech who was his de facto wife and with whom

he lived in a caravan at a caravan park in a

suburb of Perth and on the night of 7 October 1986

he discharged a shotgun cartridge within that

caravan which struck the lady in the head and
caused a massive head injury.

The evidence was that the shotgun must have been fired at very close quarters, within probably

a metre or less of the victim,and during the

course of the day in question the accused and

a friend had been drinking from approximately

noon on that day until 11 pm when the incident

occurred. The extent of drink consumed was perhaps

indicated by the blood alcohol level of the deceasedwhich

was .247 percent. The only explanation which

could be given for the shooting was that the

deceased had apparently knocked a denim jacket

of the appl'icant from a couch to the floor in
the caravan immediately before the shotgun was

discharged.

But there was evidence that the applicant

had been using the shotgun, cocking it and so

on, for some hours but otherwise no evidence

of any intent to kill this woman. And, Your Honours,

intoxication thus loomed as the real thrust of

the defence of the applicant when tried. It

is our submission, Your Honours, that in a trial

for wilful murder in Western Australia it is

essential that where there is evidence of

intoxication that there should be a specific

direction to the jury that if because of evidence

of that intoxication or otherwise they are not

satisfied that the accused did in fact have the

necessary intent then they must acquit of the

crime which involves that intent. And that is

what is commonly termed the VIRO formulation
which appears in the judgment of Mr Justice Gibbs,

as he then was, in VIRO V REG, (1978) 141 CLR 112

where His Honour then there indicated, in the

passage at page 112:

(Continued on page 4)

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MR MILLER (continuing):  His Honour there then indicated

in the passage at page 112:

It should be explained that evidence

that the accused was intoxicated will

not in itself entitle him to an acquittal,

because a person when intoxicated may form

the necessary intent, and one who has

formed the intent does not escape

responsibility -

et cetera -

However, the jury should be told that if,

because of the evidence as to the effect

of the intoxication or otherwise, they
are not satisfied that the accused did in
fact have the necessary intent, they must

acquit of the crime which involves that

intent.

.

That formulation was adopted for Western Australian purposes by our former Chief Justice, Sir Francis Burt,

in PERKINS V REG, (1983) WAR 184, and there is an

appears, where Sir Francis said, in very much the

error, Your .Honours, in the outline of argument.

same words:

It should be explained that evidence

that the accused was intoxicated will

not in itself entitle him to an acquittal,

because a person when intoxicated may form

the necessary intent, and one who has

formed the intent does not escape

responsibility because his intoxication

has diminished his power to resist the

temptation to carry it out. However,
the jury should be told that if because of
the evidence as to the effect of intoxication

or otherwise they are not satisfied that

the accused did in fact have the necessary

which involves that intent.

intent, they must acquit of the crime

So it is a direct citation of Mr Justice Gibbs'

dictum.

(Continued on page 5)

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MR MILLER (continuing):  Now, Your Honours, the passage from

VIRO was acknowledged by the members of the Court

of Criminal Appeal as being the correct formulation

and that can be seen from the judgment of

Mr Justice Kennedy in the Court of Criminal Appeal

in the application book at page 229, where indeed

at 229 to 230 Mr Justice Kennedy set out the very

passage and referred too to Sir Francis Burt's

formulation in PERKINS. Likewise, Mr Justice Rowland,

application book page 238, indicated at 238 C to D,

that this was the type of direction,as he referred

to it,which should be given.

The Chief Justice who sat on the Court of

Criminal Appeal gave no independent judgment in

this case. But, in my respectful submission, it
is the case that Perkins makes it quite clear that
in Western Australia that specific formulation with
that specificity is required in a case where

intoxication is the thrust of the defence, as it was

in this particular case.

The fact that intoxication was primarily the

defence of the accused was recognized in the

Court of Criminal Appeal. Mr Justice Rowland, for

example, at page 235 of the application book, 235D,

said:

His main defence, as formulated by his

counsel at trial, was that he was so

affected by alcohol that he lacked

the capacity to form any relevant intent.

And, Your Honours, in DODD V REG, (1978) WAR 209,

the former Chief Justice Sir Francis Burt, at

page 211 to 212 made it clear how important it was

in Western Australia in such a case for the direction

to be given with some degree of specificity on this

particular isse.

(Continued on page 6)

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MR MILLER (continuing): At 211 to 212 His Honour referred to

a formulation by Mr Justice Mack in Queensland in

what is referred to as CROZIER's case but made the

point at the top of 212 that:

The idea of a capacity to form an intent .....

lacked definition and to distract attention

from the true question, which is simply whether

the "intention in fact existed".

And at 214 His Honour then indicated the importance

of the correct formulation to the jury in these

questions. At 214, in the second paragraph:

I can only say that if the jury did so

understand the direction ..... they judged

the case without regard to the appellant's

intoxication -

et cetera, indicating the importance in Western

Australia, really, of the correct formulation of

the intoxication direction. Now, Your Honours,

the position really in the Court of Criminal Appeal

was that each of the judges who gave the decisions

wrote the judgments. Mr Justice Kennedy and

Mr Justice Rowland took the case that in this particular case the direction was deficient in

the sense that it did not give the specific VIRO

direction but that it was adequate for the purposes.

At page 230 of the application book Mr Justice Rowland

made that clear. He said:at 230 C to D:

The applicant's complaint comes down to

the failure of the learned trial Judge to direct

the jury specifically in the terms that

if, because of the evidence as to the effect

of the intoxication, they were not satisfied

that the accused did in fact have the necessary

intent, they must acquit.

The learned trial Judge, however, in the

course of his charge gave a full and clear

direction as to the onus of proof and the
standard of proof. In particular, he stressed
that if, "at the end of or on the whole of the
case against the accused", they had a
reasonable doubt, however that reasonable
doubt might have been created, as to any of the
necessary elements or ingredients ..... or any

alternative homicide it might become necessary

for them to consider, the Crown had not made

out its case and that they must acquit the

accused.

And he said at the top of 231:

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MR MILLER (continuing):

Later in his charge, he explained carefully
how the jury should consider the question

of intent -

and we agree with all of that, with respect -

and, in clear terms, he indicated that the

fact that the accused was intoxicated had

to be regard for the purposes of ascertaining

whether the intent in fact existed -

and with that, we also respectfully agree, then

said -

Whilst it is true that he did not, at that

stage, state in so many words that, if because
of the evidence of intoxication they were
not satisfied ..... the jury had already been

given a general direction as to that.

It is our respectful submission that His Honour

Mr Justice Rowland was not justified in saying

that because general directions were given as to

onus, standard, intent and intoxication that the
specific direction could be overlooked and

Mr Justice Kennedy likewise at - Mr Justice Rowland at 240 - I was referring then to Mr Justice Kennedy.

Mr Justice Rowland at 240 said, in much the same

words, that - 240B:

The main concern for the jury was to concentrate

on whether the Crown had established beyond

reasonable doubt that the accused intended

to kill and the extent to which the evidence of intoxication affected that issue had been

explained to them. In my view, his Honour's
charge which is not challenged in any particular,

was adequate for that purpose.

We would respectfully submit that adequacy was

not the test so that each of Mr Justice Kennedy

and Mr Justice Rowland have said, it was not as

specific as it should have been but it was adequate

for one reason or another and it is our submission

that that justifies this application for special

leave. Now, Your Honours, turning to the trial

• d I

JU ge S - - -

DAWSON J:  You do not say he did not say anything that he

ought to have said, that is, the trial judge.

MR MILLER:  That is what we are saying, Your Honour. Yes.

DAWSON J:	He said everything he ought to say.
MR MILLER:	He said all the general things he ought to have said

but he failed to make the specific direction as to the

relationship between intoxication and intent and the

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formulation that Mr Justice Gibbs, as he then was

put in VIRO which has since been adopted in

Western Australia. It certain 1 y said everything

in general terms as to onus, standard,
intoxication, in the general sense, and perhaps

I could just refer to those passages.

DAWSON J:	He said the question was whether the intention
in fact existed at the time the act was done.

He said that intoxicaiton could bear upon that.

MR MILLER:  Yes, that is where he stopped too short, in

our respectful submission.

DAWSON J:	What should he have added?
MR MILLER:	That it could bear upon it,but failed to underline

that if, at the end of the day, the jury had

a reasonable doubt that because of the intoxication

of the accused the intent did, in fact, exist,

they must acquit. He never said that in so many

words and had opportunity to do so at the conclusion

of his charge at a critical point when that was.·

not said. And, indeed, Your Honours, the charge

took something like 100 minutes and it was only

once during.the 100 minutes that His Honour made

reference to intoxication vis-a-vis intent and

when he did so he did not do it with a specificity

with which we would respectfully submit he should

have done.

BRENNAN J:  He recited section 28 paragraph three of

the Code?

MR MILLER:  I am not sure that he did. I was going to

come to his charge in a moment just to indicate

to Your Honours what he did do. May I do that?

BRENNAN J:	Was there any request for a·redirection?
MR MILLER:	There was but not on that point. Redirection

on accident and also on some other extraneous

matter but not on this point, that is correct.

Perhaps I could just give Your Honours the

indication as to time to get the perspective

of this charge because it is not easy to pick

it up just reading the application book. The

times are given in the transcript, the top left

corner, and His Honour set out with the charge

to the jury at 10.04 and one can .see that from

the top of page 179 and reached the vital direction

on intoxication and its relationship to intent

at 11.10 am. We can pick that up from 205 of

the application book because the time is in the

left-hand top corner.	And then concluded the
charge at 11.40.

So within the structure of the charge the

direction on intoxication and its relationship

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to intent came about an hour after it had started

and something like another half hour expired

before the jury retired. Yet that was the thrust

and the key to the defence of this accused.

But it was only once referred to and then, in

our respectful submission, not adequately. But

perhaps I could just refer to the general matters

which impressed the two members of the Court

of Criminal Appeal as being adequate.

First of all, at page 182 of the application

book, His Honour deals with onus. I will not

read these,Your Honour~ but 182 over to 183,

the bottom paragraph on 182, the top paragraph

on 183, the standard direction on onus and then

at 183C to D, the standard direction on standard

of proof. No problems with any of those. That

is also at 184, between A and B, the standard

direction on reasonable doubt. But nowhere in

either of those any reference to this specific

issue of intoxication as it bears on intent.

Then at 187E begins a general direction

on intent:

As you will see the circumstances which

distinguishes the crime -

talking of wilful murder -

is the intent with which the accused

unlawfully killed -

So that point is made although at that stage

no reference made to intoxication. It is also

picked up again at 203A to E, the very same question

of intent in general terms.

BRENNAN J:	Mr Miller, what is the difference between what His Honour said at pages 205 to 206 and the VIR0
direction? The difference in substanc~ not in
words.
MR MILLER:	The difference, Your Honour, is this, that at 205 to 206 His Honour was simply saying, "The
question of intoxication can bear on intent."
That is what he said.
BRENNAN J:	And it can bear either way?

MR MILLER: Yes and, indeed, I was going

BRENNAN J:  It can either negative it or as relevant to

establish it?

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MR MILLER:	Yes.	I was going to make the submission that he

really cut away from the defence by saying you
have to look at the other side of the coin.

Intoxication can sometimes cause a person to do

something intentionally which really put the

opposite - - -

BRENNAN J:	May lower the inhibitions against doing something which is done intentionally.
MR MILLER:	Yes, which in a way, in my respectful submission,

cut the ground away from the defence and perhaps - - -

BRENNAN J:	What is the difference in substance between what His Honour said and VIRO?
MR MILLER:	The difference, Your Honour, in our submission,

is this, that it is not good enough to simply say that

it can bear on intent. The jury has to be specifically

directed, as has been put in several cases, the

specific words - Your Honour is asking me the .

question, "Don't go to the specific words", but the

only answer I can give you is you have to. You have

to direct the jury that if, because of intoxication,

they are left with a reasonable doubt that the intent

in fact existed, they must acquit.

Now, that is a formulation which, in my

respectful submission, you cannot get near to by

saying, "Intoxication bears on intent. When you are

looking to see if intent was there have regard to

intoxicatien". That is our point, simply that point,

and indeed Sir Garfield Barwick in O'CONNOR's case
in a different setting - if I may refer to it -

I think underlined that by pointing out the

importance with which such terminology should be

used and that is in REG V O'CONNOR, 146 CLR 64, at

page 88, where Sir Garfield said in the second
paragraph on page 88; at the foot of the second

paragraph:

meaning and scope of voluntariness

They should be instructed as to the

and as to the precise intent which

the crime charged requires. It would

be proper in these cases to tell a

jury that the fact that a man does not

later remember what he did does not

necessarily indicate that his will did

not go with what he did do or that he
did not have the necessary intent.

I am sorry, I read a little bit too low down the passage. I am sorry, Your Honours. I will just go back to it. It is one third of the way down:

They should be told that if the evidence does not raise in their minds a doubt as

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to the voluntariness or actual intent

they may put that evidence out of their

minds in considering the accused's guilt

or innocence. But if the evidence is

capable of raising a doubt either as to

voluntariness or the existence of an

actual attempt, the jury should be told

that if that evidence raises in their

minds a reasonable doubt as to the

voluntariness or actual intent, it is

for the Crown to remove that doubt from

their minds and to satisfy them beyond

reasonable doubt that the accused

voluntarily did the act -

et cetera. So there is another formulation.

MASON CJ:	Did not the trial judge say that?
MR MILLER:	Not in specific words, Your Honour.
MASON CJ:	Not in those very words.
MR MILLER:	No, not in those words.
MASON CJ:	But was not that the general tenor of what he

had to say.

MR MILLER:	The general tenor was you look at intoxication to consider this question of intent, and Your Honour
Justice Brennan just referred to the passage at
page 206, but may I refer to the final passage where he concluded his connnents on this at page 210. Your Honours will see just how general it was at a point of time when the jury was just about to retire. At page 210 in the second paragraph, at letter A:

The next question of course is the question of the

intent with which that act was done, if you are

satisfied as to the first two matters. You may

well consider that this really is the central question -

which it certainly was -

for you to detennine but nevertheless the other two

questions must first be determined before
you need get to the question of intent.

At the next paragraph:

You then go to the question of intent and

I have already dealt at considerable length

as to how you should approach that question.

He was there dealing with questions of what is in a

man's mind and how you use inferences to establish it -

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and I do not propose to traverse it again. In our submission, he had not traversed it adequately

then and he brushed it off here, and then went on to say something about motive, and just above letter D:

All I can do is ask you to apply the

principles I discussed earlier in relation

to that question, that is to firstly make

your findings of primary fact as to what it was

that the accused did and having reached that

point, then decide the intent with which

he did those acts -

but this case was essentially a case where intoxication

was the issue and there there is no reference whatever

to the important question of intoxication and its

bearing on intent and the formulation that we

respectfully submit should have been given.

(Continued on page 13)

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MR MILLER (continuing): Then, finally, the passage:

If you are not satisfied that the Crown

has proved beyond reasonable doubt that the
accused killed Miss Grech and killed her,

having at the time he killed an intention

to kill, then of course you should consider
the question of murder.

So that underlines, in our submission, the inadequacy of the direction which, I must confess,

with respect, in every other degree was correct.

Everything said about onus, standard, intent

generally, intoxication generally, all correct but

it failed to get down to the specificity that such

a case requires where the defence is only really -

there were other defences of accident and so on

which one can brush aside, but primarily the

defence was intoxication and there was ample

evidence of intoxication in this case. So, it is

our respectful submission that anything less really fell short of a sufficient direction.

Can I j~st indicate to Your Hono~rs factually,

by way of some hand-ups, just how powerful the

evidence was on this question of intoxication?

May I hand up what I have extracted from the

appeal book as a summary, and I will not go to

this in any great length, Your Honours, but a

summary of the evidence that relates to consumption

of alcohol by the various parties. To just save

going through the application book and taking time,

if I could just run through it to give Your Honours

an indication of just how much evidence there was

of alcohol which underpins the need, we would submit,

for the specific direction. The woman had a blood

alcohol level of . 24 7, as I have indicated, which, as

you would not be surprised to find, the forensic

pathologist said was a very high level, very severe

effects of alcohol. A witness named Martin gave

evidence, all of which I have set out there and

very drunk and h~ in fact, this person, had been	I will not read it, that the accused person was
in the caravan just before he discharged the eun.
It will give Your Honours some indication of the
extent of alcohol drunk if you look at page 3
of that sunnnary. These men began drinking at
around midday and later in the day had purchased
three large bottles of bourbon which two men and the ~
between. them bad totally consumed, plus other alcohol.
So, there was ample evidence, without me going
through all that, of very high degree of intoxication.

MASON CJ:  I think we appreciate that, Mr Miller.

MR MILLER:  Yes. So, Your Honours, the point then is short,

as Your Honour Mr Justice Brennan has nailed it.

That is exactly our position. We accept that there

was a general direction on intoxication; that it

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had to be looked at when looking at intent,

but it was not adequate to do it in that way

and that one was required to give the specific

direction to which I have referred several times.

Your Honours, it would be our submission that

if that is so it could not be said that there had
been no miscarriage of justice in this case

because intoxication was so central to the defence

of the accused that such a deficiency in the

direction was a substantial irregularity.

DAWSON J:  Of course that works both ways. Really what you

are complaining about is as much emphasis as

specificity and, of course, it is apparent that

intoxication and its relevance was emphasized

from beginning to end of the trial.

MR MILLER:	Not in the direction.
DAWSON J:	It may not have been necessary to emphasize it

there because it was in the forefront of everyone's

mind.

MR MILLER:  But then, with respect, your Honour, the judge's

task, responsibility, is to direct the jury on
the law and whatever counsel might have said about

intoxication in addresses really needs to be put into the proper perspective at that time. These general directions of intoxication, how it can - a lot of the direction on intoxication went to

how it can affect a witness's recall of events.

There is so much time spent on it in the extraneous sense it is surprising it is not dealt with in terms

of the specific direction which are asking for the
Court to rule that there should have been, because,

after all, the jury really needed to be told that

when they reitred to that jury room if they had

a reasonable doub~ because of that fact in relation

to intent, they must acquit, and they were never

so told. { Continued on page 1 5)

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MR MILLER (continuing):  I would respectfully submit that

is a very serious irregularity which justifies in

this case the Court interfering with the decision

of the Court of Criminal Appeal. It is not good

enough to brush it off and say, "Well, it was

adequate because" - - -

DAWSON J:  Well, in a sense they were told about reasonable

doubt and the only thing they could have any

reasonable doubt about is the one issue in the

trial, and that was the effect of the intoxication.

MR MILLER:  Yes. But, Your Honour, how can a member of a

jury really work that out? How could. a member of a

jury when retiring to the jury room say, "I have been

told if I have got a reasonable doubt I must acquit.

I have been told about intent and I have been told about intoxication, I have got to marry the two

together and realize that question." That is the shortcoming in the direction. So, with respect, there is not much more I can say about it. It is·-

a very short point but we would say, with respect,

an important point. If the Court thought that it

did have mer.it then we would seek, of course, special

leave and seek an order for a retrial primarily.

May it please the Court.

MASON CJ:  Thank you, Mr Miller. The Court will briefly

adjourn in order to consider the course that it will

take in this matter.

·110 AT 10. 44 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.46 AM:

MASON CJ:  The Court need not trouble you, Mr Murray.

The applicant submits that the trial judge's

direction on the matter of intoxication was inadequate
because it failed to instruct the jury that if,by
reason of the applicant's intoxication, it was not

satisfied of his intent, it must acquit: see the

judgment of Mr Justice Gibbs in VIRO V REG,

(1978) 141 CLR 88 at page 112. True it is that the

trial judge did not, when dealing with the issue

of intoxication, specifically state that if the jury,

by reason of the applicant's intoxication, was not

so satisfied it must acquit. But in the circumstances

of this case there can be no doubt that when the

summing up is read in its entirety the judge made

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it clear to the jury that before they could find
the applicant guilty they must be satisfied beyond

reasonable doubt that the applicant had the necessary

intent notwithstanding his intoxication.

For these reasons the application for special

leave to appeal is refused.

MR MILLER:  May it please the Court.

AT 10.48 AM THE MATTER WAS ADJOURNED SINE DIE

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