Nicholson v The Queen

[1995] HCATrans 62

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H18 of 1994

B e t w e e n -

WAYNE RICHARD NICHOLSON

Applicant

and

HER MAJESTY THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 10.17 AM

Copyright in the High Court of Australia

MR H.J. KABLE, QC:   May it please the Court, together with MR P.G. WOOD, I appear for the applicant.  (instructed by Piggott Wood & Baker)

MR D.J. BUGG, QC:   If the Court pleases, I appear with my learned friend, MR J.N. PERKS, for the respondent.  (instructed by D.J. Bugg, QC, Director of Public Prosecutions (Tasmania))

MR KABLE:   May it please the Court, as to the first question, which is the role of the jury, a reading of the written outlines of argument disclose that there are competing submissions to your Honours as to whether the case at hand, that is Nicholson, is in conflict with the majority decision in Haas v The Queen (1964) Tas SR 1, which was decided by the Court of Criminal Appeal in 1964. The Crown suggests that the present case is not in conflict with that decision; we say it is, and I go straight to that issue and take your Honours to the judgment of Justice Crisp in Haas and to the passage of his Honour’s judgment commencing at the bottom of page 24 in the paragraph commencing, “Hence in a charge of attempt”, and particularly over the page at page 25 where his Honour states:

More shortly put, it is whether the conduct complained of if continued or persisted in according to its tenor, assuming it was pursued, can be said to be consistent with no other result.

There, his Honour was dealing with the direction to the jury.  He then comes to deal with what is the role of the jury.

If it can not, then, provided the requisite intention is found as a fact, and subject to the empirical judgment involved in the negative criterion exercised legally of remoteness -

parenthetically, section 2(4) -

it can be an attempt, but that involves a finding of the jury.

This I think is in accord with the balance of authority - an opinion which I utter with more confidence since the opinion of the Court of Criminal Appeal in Reg. v. Cook has become available.

So his Honour does not interpret section 2(4), we would say, in the way that the court has in the present case.

Mr Justice Neasey, at pages 28 and 29 in the same case dealt with the same issue.  I particularly take your Honours to page 29.  His Honour, at the top of that page, set out his Honour’s views as to the test for remoteness to be applied and then, in the paragraph commencing “Crisp J. in Reg. v. Catlin”,  towards the bottom of that paragraph his Honour says:

If the trial judge is of opinion that the act alleged is too remote to fall within that element he will withdraw the case from the jury, but if not it will still be necessary to leave the issue to the jury as to whether they are satisfied that the act does form part of the postulated series.

In my opinion sub-s.(1) requires this positive inference of fact to be left for the jury to draw once there is evidence upon which they could reasonably so find (the latter being the question of law referred to by sub-s.(4)), -

and then there is the key passage in his Honour’s judgment -

and I think it is plain that the learned Chief Justice -

who was the trial judge in Haas’ Case -

took that view.  It is a view contrary to that accepted by the Court of Appeal in New Zealand and by the learned editors of the 35th edition of Arch. Cr. Plg but  it is affirmed by the most recent decision of the Court of Criminal Appeal in Reg. v. Cook.

GAUDRON J:   But it was left to the jury in this case, was it not?

MR KABLE:   Whether it was an act of preparation or whether it was an act of perpetration was not left to the jury, your Honour, and, in particular, they were never given a direction that an act of preparation would not be sufficient to constitute an attempt.  Perhaps to highlight that distinction, can I take you straight to Justice Neasey again in Bell’s Case 72 Tas SR 127, and the page that I take your Honours to for this issue is page 129. In Bell’s Case, and this was a Crown appeal relating to the mental element in the crime of attempted rape, his Honour Justice Neasey, at page 129, sets out the summing up of Justice Nettlefold, who was the trial judge in Bell.  Your Honours will see that about seven lines from the bottom of the quote from Justice Nettlefold’s direction to the jury appears the following:

And the third thing that you have to be satisfied about beyond all reasonable doubt before you convict him, that his conduct towards her was conduct which went beyond mere preparation and was such that you can clearly see that he was engaged in committing what would have been the crime of rape if the purpose he then had in mind had been achieved.”

So Justice Nettlefold, the trial judge in Bell, gave the direction we complain was not given ‑ ‑ ‑

GAUDRON J:   Which you did not seek.

MR KABLE:   No, we did not seek at that time, your Honour.

GAUDRON J:   You had a direction to the jury as appears at page 17 that they must be satisfied that it -

formed part of a series of events which if it had not been interrupted would have constituted the actual commission of the crime of rape.

And you sought no further direction with respect to the matter.

MR KABLE:   Your Honour, no further direction was sought with respect to that direction, that is correct.  No assistance was given to the jury as to what in fact constituted an attempt and we would say that this is not one of the cases where the failure to seek a direction, (a), can ever be said to have been for tactical purposes, or (b), lessens the conflict between the judgment in Haas and Bell and the judgment in the current case.

DEANE J:   Mr Kable, I can understand in some contexts the distinction between preparation and as it were getting involved in an attempt to do.  But when you have someone intruding or breaking into a room, lying on top of the woman in the bed and beginning to engage in acts of indecency, I must confess if the jury thinks that there is a series of acts which, if not interrupted, would have resulted in rape, I simply cannot understand the significance of - I mean, is what you are saying it was open to them to say that he was simply lying there assaulting the lady as a preparatory step to deciding will I or will I not?

MR KABLE:   What I am saying, your Honour, is that in this case he could have been - the jury could have hypothesised that he was either going to indecently assault ‑ ‑ ‑

DEANE J:   He had indecently assaulted.

MR KABLE:   Sorry, that the indecent assault which constituted the crime of attempted rape was going to remain or some other indecent assault, but when there was a summing up which neither said to the jury that an act of preparation is insufficient, and which gave the jury no direction as to what will constitute an attempt, then in that circumstance, the way his Honour in the passage Justice Gaudron referred to left it to the jury, his Honour said you could consider it part of a series.

DEANE J:   But in this context, the talk of act of preparation would be positively misleading.  It is like saying, if you are going to rape somebody, you proceed to tie her down, the jury being asked was that an act of preparation or an attempt to rape.

MR KABLE:   Your Honour, the answer I would give, that if the jury were told clearly that they needed to be satisfied it was more than an act of preparation, and if they were told what constituted an attempt, we could not complain about the summing up.  It is individually those two matters and their collective force.

DEANE J:   But if they conclude that he was going to rape the lady, which they obviously did, how is it meaningful to talk about lying on top of her and indecently assaulting her being an act of preparation as distinct from part of what the Act says is a series that constitutes an attempt.

MR KABLE:   Because the vice in the direction was that when they were directed to consider what was in his mind they were also directed to consider a series of events.  They were given no direction as to the demarcation as to what would or what would not constitute the crime ‑ ‑ ‑

DEANE J:   I think I am being not very clear, perhaps.  What, in a context where the jury have found he intended to rape, how could what he did be seen as an act of preparation as distinct from part of the series of acts?

MR KABLE:   It could be seen as an act of preparation ‑ ‑ ‑

DEANE J:   For what?

MR KABLE:   For indecent assault of a variety of forms.

DEANE J:   But he had indecently assaulted her.

MR KABLE:   I am not cavilling with the fact that he had - of a more egregious indecent assault.

DEANE J:   What if the only conclusion from the jury’s finding is that it was an act of preparation for rape?

MR KABLE:   If the only conclusion from the jury’s finding, having been asked that question, was that it was an act which was involved in the committing of the rape, then we could not suggest that the failure to give the directions we ask for in any way could have affected the result of the trial.

DEANE J:   It seems to me, in a case like this, you bring in a question, “Is this an act of preparation or is it something else” you are going to undermine the whole working of section 2.  I can understand how in other contexts you would say, “Is this no more than a preparation” and so on, but not in the context of these facts.

MR KABLE:   If it please your Honour, that highlights the difficulty given rise to by this case because we still do not have - “we” meaning the law in Tasmania - an indication of what is constituted by an attempt, which is of course the third question we raise in our special leave application.  What we have is all judges acknowledging that the test for remoteness, whether it is for the judge or the jury, is to be found in the common law.  We have all judges who have dealt with the matter saying the common law cannot tell you what the test is.  We have the trial judge in this case going to the words of the section, even though all appellate judges go to the common law to consider the matter and the trial judge gives a direction in accordance with the section, without amplification, but the appellate judges in this and McGhee all say we go to the common law, but when the next question is asked, “Which piece of the common law are you (individually) applying”, we cannot find the answer.

GAUDRON J:   Perhaps that is because ultimately it is a question of fact to be decided by the jury on the basis on which it was left to them here.  And, indeed, once you find intent in a case such as this, which the jury was asked to find first, once you have found that, that really does answer, in this factual situation, the whole of the question, does it not?

MR KABLE:   Your Honour, the submission we make is that it does not, and the reason we submit that it does not is because if you find intent, it is the act which attracts criminal liability, not the intent.  It is the intent which must accompany the act and we say that there must be a test or tests which demark the acts which will attract criminal liability and the ones that will  not - criminal liability for attempted rape, I should have been more precise, because the acts he committed clearly would have attracted criminal liability for indecent assault.  The question is what will determine which acts will determine criminal liability for attempted rape.

Now, he might have had the intent to rape when he came in the window.  Of course, the verdict says he did not, so it is some stage after that, and the submission we make is that when the judges have decided that the conduct did constitute the crime, if it is a question of fact, it must be determined in accordance with a principle of law and there is nowhere in this case, or in McGhee, any principle which is to be applied to the facts.  What their Honours did in this case was to say, look, you have argued the equivocality principle, that is wrong, that is not the law of Tasmania.  Once the equivocality principle is not the law of Tasmania, we do not need to say what the law is but this was an attempt, and we would respectfully submit that even if it is a question of fact for the jury, for the Court of Appeal to look at it and assess it, there must be a legal principle which they apply to the facts.  And that is why we submit that point 3, the third issue we raise as a special leave issue, even if the Court were not to be persuaded that the interpretation of 2(4) was wrong, that the third issue is one that warrants the grant of special leave.

The three issues, as your Honours will recall, are: does section 2(4) take out of the hands of the jury any qualitative assessment of the conduct, and the effect of the current decision is that it does, that the jury do not embark upon a qualitative assessment of the conduct.   And we would say that when their Honours so concluded, their Honours made a legal conclusion which was directly contrary to the decisions that I have referred your Honours to, that is Haas and Bell, and that we are back to the stage where their Honours have put the word “alone” in section 2(4), that is they have interpreted section 2(4) as meaning, “Whether an act or omission is, or is not, too remote to constitute an attempt to commit a crime is a question of law alone, i.e., once the judge decides it, the only issue for the jury is whether the facts occur.”

GAUDRON J:   Mr Kable, I do not read the judgments as saying that at all, I regret to say.  If you turn to page 33, at the bottom of the page:

The questions for the jury are what acts were done, were they accompanied by the necessary mens rea and is the only rational inference that those acts formed part of a series which would have constituted commission of the crime had they not been interrupted.

MR KABLE:   Your Honour, that passage that your Honour is referring to is to be looked at in the light of the passage immediately after ground 4, which is articulated on page 34, where his Honour Mr Justice Underwood says, whose judgment your Honour is reading from:

For the reasons I have expressed, the failure to direct the jury that if they found the acts committed were acts of preparation such acts would not constitute an attempt was not an error of law.  That

matter had been determined conclusively by the learned trial judge as a matter of law.

And it is with that part of his Honour’s judgment that Mr Justice Crawford and Mr Justice Wright agreed, and it is that conclusion that I have sought to submit to the Court is directly contrary to the other cases but, more importantly, it takes the qualitative assessment away from the jury.  So the jury are not asked the question that your Honour Justice Deane posed to me, they are asked the question, did this person commit these acts and are they in a series.  They are not asked the question, did the person commit the acts and is your qualitative assessment that they were not too remote or were only acts of preparation.  So, thus the experience of the jury in assessing the conduct of a fellow citizen in those circumstances is, in consequence of this finding, held to be irrelevant to their ultimate task. 

The vice of that was set out by all members of the House of Lords in Stonehouse at the passage I referred to in my submissions and the reasoning why it is a vice, particularly Lord Diplock at the page I refer to in the written outline, 69B down to G, his Lordship sets out far better than I could why the qualitative assessment of conduct alleged to be an attempt ought uniquely be the province of the jury, unless there is an unambiguous provision taking it from them.  Those comments by his Lordship were echoed by each member of the House of Lords in a case as devoid of merit as that of Mr Stonehouse, and it is my submission that those comments followed on from the Court of Appeal’s decision in Cook but that these speeches, as identified in Stonehouse, are far more persuasive than Cook and show the very important rule and, of course, their Lordships document that modern juries more and more are required to make qualitative assessments of conduct rather than make findings of fact on disputed evidence.

For those reasons, we would say that each of the questions identified in the written outline of argument do warrant the grant of special leave.

MASON CJ:   There is a question I might ask you, which is not relevant to the outcome of the argument you have put, but I am just interested to know:  is this application legally aided?

MR KABLE:   Yes, your Honour.

MASON CJ:   Thank you, Mr Kable.  The Court need not trouble you, Mr Bugg.

In the view of the Court, the proposed appeal would fail.  The application for special leave to appeal is therefore refused.

AT 10.38 AM THE MATTER WAS CONCLUDED