Osland v The Queen

[1998] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 1998

B e t w e e n -

MARJORIE HEATHER OSLAND

Appellant

and

THE QUEEN

Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 23 APRIL 1998, AT 10.17 AM

Copyright in the High Court of Australia

MS J.A. SCUTT:   May it please the Court, I appear matter with MS A.C. THACKER and MS F.G. PHILLIPS for the appellant, Ms Heather Osland.  (Instructed by Hale & Wakeling)

MR M.S. WEINBERG, QC:   If the Court pleases, I appear together with my learned friend, MR B. KAYSER, on behalf of the respondent.  (instructed by the Office of Public Prosecutions (Victoria))

GAUDRON J:   Yes, Dr Scutt.

MS SCUTT:   Thank you.  Just some preliminary matters, if I may.  Ms Heather Osland did wish to be present in Court today at the hearing of this appeal but, as a consequence of some difficulty in terms of the matters that go to State powers and federal powers, she was unable to be present.  I did wish to inform the Court of that.  Also, if it is necessary for us to request leave to amend our grounds of appeal, then we now do that to insert the new ground 1A, and I understand from my learned friend, Mr Weingberg, that the respondent has no objection to that.

GAUDRON J:   Yes, leave will be granted.

MS SCUTT:   Thank you.  I would like to hand up to the Court also, our outline of submissions with the page numbers of the appeal books inserted.

GAUDRON J:   That is in lieu of the ones we already have.

MS SCUTT:   Yes, that is correct.  We do regret that it was not possible to put the page numbers of the appeal books in from the outset.  Thank you.

McHUGH J:   For the future, Dr Scutt, you might bear in mind that the chronology that you have filed is a long way from what is required.  When the Court requires a chronology, it requires a chronology of the facts of the case, not simple matters like death committal proceedings, and matters of that nature.  The purpose of a chronology is to aid the Court in understanding the evidence.  I hope you will bear that in mind for the future.

MS SCUTT:   Yes, we do, your Honour, and I apologise for that, but I may say that I appreciate the fact that your Honour believes that I shall be returning and, no doubt, I shall, thank you. 

May I begin with a question, and we would like to say to the Court this, that had David Albion, the person who went on trial with the appellant, Heather Osland, been tried first for the crime of murder, and had he been acquitted, we ask, would Heather Osland ever have been put on trial for murder.

We say the answer clearly is no and we say that this Court ought properly to agree that the answer is no.  In that regard let me refer the Court to Reg v Darby (1982) 148 CLR 668. We refer the Court in particular to page 678 right at the top of that page where the majority of the Court said:

In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other.  We would encourage the adoption of such a practice.

We draw to the attention of this Court the overwhelming material significant difference in the evidence between these two persons who went on trial together, and that is a difference that has been overlooked.  It was overlooked in the trial, it was overlooked in the Court of Appeal, and that significant difference is that it was David Albion who wielded the bar that killed Frank Osland.  We say that the substantial reason why this trial went seriously wrong and, in fact, this egregious error has occurred is because no attention was focused on that single significant point.

What we say has happened in this case is this.  Instead of commencing at the point of death, that is the killing of Frank Osland, which is the point where the prosecution ought to have begun, where the trial judge ought to have begun, where the Court of Appeal ought to have begun, who wielded the weapon who killed Frank Osland, what happened was that everybody commenced at some time in the past. 

In that regard I refer the Court to Ryan v The Queen (1967) 121 CLR 205. I refer the Court in particular to pages 218 to 219 and remind the Court of course that in that case the question was whether the accused had killed the service station attendant by way of murder or manslaughter. The question that his Honour Chief Justice Barwick addressed was: at what stage in the events leading up to the death of the service station attendant did one focus attention to determine whether the act that occurred could be classified as murder or manslaughter or in that case under section 18 of the Crimes Act.

GUMMOW J:   Of New South Wales?

MS SCUTT: Of New South Wales, that is right, yes, your Honour. Whilst, of course, all the happenings of the evening antecedent to the discharge of the gun might be regarded for the purpose of deciding whether some act of the applicant which caused the death of the deceased qualified under one or more of the conditions of culpability for murder, which are set out at section 18, they could not, in my opinion, be regarded in the aggregate as the act of the accused causing death. Such a course, in my opinion, not merely lacks the requisite position but fails to provide a subject of which one or more of the said conditions or concomitants could be predicated.

The earliest act of the applicant which, in my opinion, could have been selected by the jury as the act causing death, was the presentation of the gun towards the back of the deceased after, at the applicant’s bidding, he - that is, the service station attendant - had turned around to enable his hands to be tied behind him.  Thus, at the most, the jury could choose the presentation of the gun in the circumstances, or its subsequent discharge, as the act causing death.  For my part, I would think the latter might well have been the obvious choice, when the difficulties which could arise in connection with the former, if the jury accepted the fourth view of the facts to which I earlier referred, are considered.  I would like to go on to his Honour’s following paragraph, where he says:

For if the presentation of the gun which subsequently discharged without the willed act of the applicant is to be chosen, a question of causation is involved  That presentation in the setting of its circumstances must cause the death.  It seems to me that it could only be held to do so if the unwilled discharge of the gun ought to have been in the contemplation of the applicant at the time.  There was, in my opinion, evidence on which the jury could have come to that conclusion.  As I have emphasized, the safety catch was not applied:  the applicant had his finger on the trigger:  he was engaged in withdrawing the cord from his pocket, itself an activity limiting the applicant’s freedom of movement and reducing his concentration in the handling of the weapon:  and, although the deceased had been pliant whilst faced with the gun, he could not be counted on to remain so, particularly when he knew from the applicant’s own words that he, the applicant, was about to do something which in the ordinary course would involve the use of both his hands and so remove or greatly reduce the threat of the gun.  But the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal:  it is essentially a matter for the jury under proper direction.

Again, we come back to the issue in this case:  the jury in this case was never directed as to that crucial factor of who wielded the weapon, that is ‑ ‑ ‑

McHUGH J:   But that was probably because the parties treated that as irrelevant.  The case was put as a case of the accused jointly causing death.  Your client - or at least it was open to the jury to find - administered a sedative to the ceased, that she encourage the son to club the deceased to death and it was put as a joint case.  Ryan is a very different case altogether.

MS SCUTT:   Your Honour, the fact that it was put as a joint case cannot change the substantial facts of this case, which is that the act causing death was done by David Albion.  If I may return to his Honour, at page 219, what his Honour says is:

I now turn to the summing up to the jury.  I must first observe that no specific attention was paid to the identification of the act causing death.  Ordinarily, there would be little need to spend much time on this question.  But on occasions, of which the instant case affords an instance, that clearly was not merely the first question to be resolved, but one which required specific and close consideration.  The Crown insistence in this case upon “felony murder”, where an element of the felony was a wounding by the accused, considerably underscored this necessity.

We would say that in this case, where it was brought as a crime that these two people did in concert, simply calling it a crime in concert does not mean that attention ought not to be paid to what the actual facts were in terms of the killing.  We will address the issue of the anti-depressant or sedative, which your Honour has raised, in the course of our argument.  May I say that we will deal with it and we will dispatch it.  His Honour Chief Justice Barwick went on to say:

The trial judge took the course of explaining to the jury the elements of those conditions which would qualify the act of the accused causing death to be murder. In doing so, he appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death. As I have already said, in my opinion, this was plainly an error. Generally, it can be said of the summing up that the trial judge took time to traverse the elements of the predicate, according to the terms of section 18(1) without at any stage assisting the jury to identify the subject to which the predicate should be related.

He then went on to say:

But the course of the trial judge’s summing up was dictated, I think, by the conduct of the defence and of the use made and permitted of the plea of guilty to manslaughter.  Issues as to what was the act causing death, and as to whether or not that act was the willed act of the applicant were not merely not raised, but assumptions were made and allowed to be made which diverted attention away from these questions.

We say that that is what has happened here.  Assumptions were made that diverted attention from the actual facts of the case.

McHUGH J:   What are the assumptions?

MS SCUTT:   The assumptions were that these two parties acted in concert in such a way that they were both equally participating in the death of Frank Osland, and that is patently incorrect.

McHUGH J:   That was the way the case was put to the jury and, apparently, it was the way the case was conducted.  The trial judge told the jury that it did not seem to be denied that the accused jointly caused the death of the deceased.  Was this point taken in the Court of Criminal Appeal?

MS SCUTT:   Well, your Honour, it was not taken in these terms in the Court of Criminal Appeal, no, that is correct.  But we say to this Court that, on the authorities, it certainly can be taken by use here and we refer to Hicksv The King (1920) 28 CLR 36 and O’Brien v Komesaroff (1982) 150 CLR 310 at page 319. And as this Court is aware, what is accepted in that series of cases and referred to by Chief Justice Mason and Justice Brennan in Pantorno v The Queen (1989) 166 CLR 466 at pages 475 to 476. In that case it was a question of natural justice not having been argued before the Full Court and they jointly said, the Chief Justice and Justice Brennan:

can it be said that there was some error in the judgment of the Court?.....Whether the Court’s reluctance to entertain such a ground has its foundation in an absence of jurisdiction or in a discretionary rule or rule of practice is a question which this Court left unresolved in Hicks v The King.....this Court will not ordinarily set aside a judgment correctly and regularly pronounced when the only valid ground of appeal is raised for the first time in this Court.

Notwithstanding that, what their Honours said was:

there are some cases in which it is expedient in the interests of justice to allow a point to be raised on the appeal which was not argued in the court below. 

And we would say, also, that when this Court gave us leave, gave Ms Osland leave, the appellant leave, to come before this Court, we say that this issue was directly and intimately bound up in that grant of leave.

McHUGH J:   Well that may be so, but the question still is whether there has been a miscarriage of justice, and the failure to take a point at the trial is a matter that bears on that conclusion.  This case was conducted on the basis that the accused jointly caused the death.  Now you come along and say, we were convicted on that basis, we want a new trial on another basis.

GAUDRON J:   Well, there is authority though that if a defence is fairly open even though not raised by the parties, a trial judge must direct the jury as to its availability.  I think going back to De Jesus.

McHUGH J:   It goes back to Pemble.

MS SCUTT:   Yes.  What we would say is this, that even as the piece I read from the Ryan Case indicates, there was a criticism there - and we make no criticism I hasten to say, but there was criticism there of the way that the defence ran its case and the Court actually alluded to the fact that in that case there had not been focus on the actual act causing death.  We therefore would adopt the approach of the Chief Justice in that case too and rely upon that as an authority as well.  Then, of course, there is the KBT Case where it was made clear that if the points are not taken during the course of the trial, that certainly does not preclude them from being taken in a higher court.

If I may say this to the Court, that was in a sense by way of a preliminary introduction to the matters which we will argue before this Court.  We do intend to concentrate upon the question of the inconsistent verdicts and our points 1A and 1 of the grounds of appeal.  We say that the outcome of those two grounds, or the way in which those two grounds will be put before the Court, inevitably lead to a situation where the Court must consider the question of self-defence and the way that self-defence was put before the jury in the Heather Osland/David Albion case and, therefore, our submissions to the Court will concentrate in the main on those two aspects of our grounds of appeal but in doing that it does not mean that we resile, in any way, from the other grounds that we have put before the Court.        In fact, we say that each of the grounds, in effect, is interlinked with the other grounds.

May I continue with the issue of the inconsistent verdicts.  We say that the inconsistent verdicts are wrong and that they are illogical, and it is on that basis that Heather Osland’s conviction ought to be set aside and acquittal entered in respect of her.  We say first of course that it is a fundamental principle that interrelated verdicts must be consistent, and they are not here.  We say also that it was wrong that apparently this trial proceeded on the basis that there were two principal offenders in the sense of their being principals in the first degree.  We also say and adopt the academic commentary that has been made on this question of principal, principal in the second degree, accessory, aider and abetter, accessory at the fact, accessory before the fact and so on, to say that the use of those terms and varying of them has sometimes caused more trouble, bluntly, than it is worth.

What one has to do is to focus on what the actual facts of the case in a particular instance are.  Here, as has been pointed out, the prosecution proceeded on the basis that there was one crime, namely, the killing of Frank Osland, that was characterised as murder by the prosecution.  We accept that Heather Osland was present at the killing of Frank Osland but we do rely upon the fact that she struck no blow.  There were two blows that were struck and it is uncontroverted in the evidence that was before the court, and indeed in all of the evidence, that the person who struck the blows was David Albion.  His evidence was that there was one but, whether there is one or two, he struck the one or both of them.  The notion that Heather Osland held Frank Osland down whilst he was being struck is totally contradicted by the totality of the evidence.

McHUGH J:   That is an irrelevancy, is it not?

MS SCUTT:   Yes.

McHUGH J:   It is an irrelevancy whether it was contradicted by other evidence or not.  The question is:  what evidence most favourable to the Crown could the jury act on?  That is the question that you have to meet for the purposes of this appeal.

MS SCUTT:   I accept that, your Honour, but the jury certainly could not act on any evidence that Heather Osland held this man down whilst he was being beaten; that is absolutely contrary to all the evidence that was led before the court.  There is no evidence before the court whatsoever that she held him down whilst he was being beaten.  The totality of the evidence before the court was that he was dead when she and David Albion held him whilst his body was twitching, an unpleasant picture, yes, we accept, but not the picture of somebody holding a person down while that person is being beaten.  That is not the way it happened, that is not the evidence before the trial court; it is simply not the evidence in this case. 

We say that when she was prosecuted as a principal, we note that my learned friend states that our submission that she was prosecuted as a principal under section 323 of the Crimes Act 1958 Victoria is somehow incorrect, because they were prosecuted at common law. We say simply that at common law anyway, the fact is that that notion that you prosecute people as principals is procedural anyway, because it arises out of the fact of the abolition of the felony misdemeanour distinction, and the way that they were prosecuted cannot alter the substantive law, which is that we must focus on who did the killing, and what the law does not say is that everybody who is present at a killing should be treated as principals in the first degree, and that is so, whether they are seen or accepted to be acting in concert or not. In that regard we have referred the Court to Reg v Demirian (1989) VR 97 at page 123, where the court said, in the paragraph near line 15:

In practice, in order to establish that persons who did not actually perpetrate the crime were accessories at the crime, it is sufficient to show they acted in concert at the time and place of the crime with whoever actually perpetrated it.  This is not because acting in concert is, of itself, the ultimate legal requirement which persons must satisfy to become accessories at the crime.  In the context, acting in concert means acting in accordance with a shared common purpose that the crime be committed.  To act in this way at the time and place of the commission of the crime inevitably amounts to acting in a way which encourages, supports, facilitates or assists the principal offender or offenders in the commission of the crime and which therefore amounts to the conduct of accessories.

When the evidence is that the accused were present acting in concert when the crime was committed it is seldom necessary for a jury to find, or to be concerned, whether individually they were principal offenders or accessories at the crime.  They will all fall within one or other of those categories.  They may all be convicted of the crime.  Indeed they may all be convicted although the evidence does not establish which of them were principal offenders and which were accessories.  It is seldom necessary to mention to the jury that some will be principal offenders and some accessories at the crime.  However, although it is usually not necessary to inquire whether individual offenders are principal offenders or accessories at the crime, an individual offender must satisfy the test of one or other of those categories before being convicted.

McHUGH J:   But, Ms Scutt, look you really have got to face up to the real issues; if you are to do any good for your client you cannot avoid what the real issues are in this case.  Now among the facts that point to your client being a principal, there was evidence that the killing had been planned a week or so beforehand, that she put a sedative in his food that night for the purpose of stupefying him, so he would fall asleep so he could be bashed to death, or a rope put around his neck or killed in some other way.  Now all of those facts, or some of those facts, make a powerful case that she was a principal in the case.  It is no good talking about what happened at the actual scene; you have got to look at the totality of the case and you have got to deal with the case on that basis.

MS SCUTT:   We say that your Honour, with the greatest of respect, has fallen into the error that has beset this case from its inception.  That is, to put it bluntly, everybody, in taking account of this case, wants to start even further back than what your Honour has said, and that is at the time that David Albion and Heather Osland together dug the hole out in the bush, or if one wishes to characterise it as a grave.  That is where everybody begins, and that is where this case has gone wrong.

McHUGH J:   Why cannot you begin there?

MS SCUTT:   You cannot begin there, with respect, your Honour, because what we have to focus on is the act causing death.  If we are going to look at the crime of murder, we do not go back to the past event, a week before, or two weeks before or a day before.  If you take Ryan, for example, what do we focus on?  Do we focus on at the instant that that man walked in the door ‑ ‑ ‑

McHUGH J:   Ms Scutt, Ryan has got nothing much to do with this case, if it has got anything to do.  Ryan was a case of a single individual who pulled a trigger, and the question was whether it was a reflex action or not, and the question was, in that particular case, what was the act?  So it was necessary to focus on the act.  What is put against you in this case, and what you have got to deal with if you are to do justice to your client’s case, is all of the facts that point to this being a planned killing, and it is no use talking about who did the act.

GAUDRON J:   One answer might be that they were not charged with conspiracy, they were charged with murder.  If they were charged with conspiracy, you would have no answer.

MS SCUTT:   No, not to the conspiracy.  Not to the conspiracy, not to conspiring to murder, but we would certainly have an answer to murder.

GAUDRON J:   That is the point, is it not?

MS SCUTT:   Yes, it is the point, with respect.

McHUGH J:   But you are charged as joint parties; it is a joint purpose.

MS SCUTT:   Your Honour, may I say this, that we say that it is not necessary to get into the facts of this case, apart from the question of who struck the blow, for the purpose of our point 1A.  We are very prepared to get into the facts and to go through them and to show to this Court how, even if it is not correct what we are saying in our appeal point 1A, that Ms Osland was an accessory at the fact and not a principal in the first degree.  If the Court is not persuaded by that - and we certainly, by no means, have completed our argument on that point, your Honour - then we will enter into the question of the facts in this case. 

In regard to that, we will say one of the prime facts that makes the difference - there are a number of facts that make a difference between these two parties.  One of the prime facts that makes the difference is that David Albion wielded the blow, and on every other count - that is a negative difference for him - on every count of difference the favour is with Ms Osland.  It is not a slight favour; it is an overwhelming totality of the evidence that shows that it is with her if there is a difference.  So that if we have to meet a case in accordance with the Darby notion, of which, I must say, we are highly critical in the essence of the majority judgment in the substantive decision they made in that case - and we consider rightly so - but for the purpose of this case we do not have to be critical of the majority judgment in Darby’s Case in the aspects of it of which we are critical. 

Of course we agree with it in a number of aspects, as I have just indicated to the Court.  We say that in accordance with that principle purported to be established in Darby, a principle with which we disagree, Ms Osland, in colloquial terms, in home free, because the difference in the evidence is so overwhelmingly substantial in her favour.  If I may return to the question of whether she ‑ ‑ ‑

McHUGH J:   Can I ask you this?  Do you concede this was conducted as a common purpose case?

MS SCUTT:   We would have to say that it was conducted as a crime in concert, it appears to me, although, when one reads the opening and the closing addresses, it seems that sometimes they are talking about in concert ‑ and, also the judge’s charge, and comments that are made throughout the trial.  Sometimes it appears that what they are talking about is a crime in concert, sometimes they are talking about a common purpose and, so, it is not substantially clear to us, I must say, and, of course, that is one of the difficulties in this case.

GUMMOW J: Well, some of the cases are common law cases, and we have to start with what the common law principle was, I suppose, and then we have to get to section 323, which you say is purely procedural. I am not sure that is right. Does it not alter the common law?

MS SCUTT:   Your Honour, it alters the common law to this extent; that what it says is that everybody from now on will be called principals, in the same way as that was so in terms of misdemeanours, so that the division between felonies and misdemeanours is now done away with and we are simply going to call everybody a principal.  But calling it does not make it so.  First of all, if we call everybody a principal, what we recognise, at common law, is that there are principals in different degrees:  there are principals in the first degree, and principals in the second degree.  So, simply saying that we are going to call everybody a principal cannot then, surely, purport to somebody who is an accessory the categorisation as principal in the first degree.

That, in our respectful submission, would be an astonishing outcome, if, by way of a procedural provision of that nature, which, when one looks at it, there was never any suggestion that it was to change the substance of the law so far as regards the fact that there are accessories to crime and there are principals to crime, and that there are principals in the first degree and principals in the second degree.  You see, if we address this issue that is being put that because they were both there together somehow they are principals in the first degree, what we would say is this - and I would like to go back to the issue that was raised in terms of conspiracy.

You see, if you look at the crime of conspiracy, what people are being prosecuted there for is the meeting of minds in terms of what it is that they agree, or allegedly agree to do.  Just before I go on with that, I am indebted to my learned friend, Ms Thacker, who points out to me that in Reg v Hewitt (1997) 1 VR 301, and I refer the Court to page 321 and, actually, there is a discussion there about White v Ridley and innocent agency and, at line 31, the Court says:

It may be.....such a wide view of innocent instrumentality would mean that many, if not most, accessories before the fact and principals in the second degree are principals in the first degree.

And then says:

Section 323 of the Crimes Act is only procedural - accessories before the fact and principals in the second degree may now be tried, indicted or presented and punished as if they were principals in the first degree - but, in the language of that section, the objection is that many, if not most, of those who aid, abet, counsel or procure the commission of an indictable offence should be classified as principal offenders.

So they are definitely there saying it is a procedural provision only.

CALLINAN J:   But I am not too sure about that myself because the section really seems, on first sight, to agree with all the matters - to provide for all the matters of substance: aiding, abetting, counselling or procuring.  It then says that a person who does those things may be tried, indicted or presented and punished as a principal offender which, in a practical or substantial sense suggests to me at first sight, and I would like you to deal with it if you can, that all matters of substance, being trial, indictment, presentment and punishment, are really covered by the section.  I mean, what else is there?

MS SCUTT:   That is a good point, your Honour, I agree with you and may I just refer the Court back to section 322B of the Crimes Act of Victoria which talks about the abolition of distinctions between felony and misdemeanour and that is what it is talking about, abolish the distinctions.

GUMMOW J:   But in this case was there the commission of an indictable offence?

MS SCUTT:   Murder would be an indictable - - -

GUMMOW J:   Yes, I know.

MS SCUTT:   In this one here?

GAUDRON J:   But is that not where you would start in this case?  You start with the question, was there the commission of an indictable offence?  The man who wielded the bar was acquitted.

MS SCUTT:   Yes, that is right.  I see, one is saying, well in this case that is what ‑ ‑ ‑

GUMMOW J:   I am just wondering.

MS SCUTT:   In this case what was charged was an indictable offence.  I misunderstood you - - -

GUMMOW J:   Well the presentment just had one count - murder against both of them.  That is what it said.

MS SCUTT:   Yes, and that is an indictable offence, that is correct. Now if I may, though, address your Honour’s point about section 323. You see, would it seriously be said by this Court that that section now means that somebody who sells a gun to another, who then takes the gun off and shoots somebody, and it is with a murderous intent, is the person who sells the gun now to be charged as a principal offender, tried as a principal offender, and so forth? You see the point is surely how far back do we go in this chain and that is why, with respect, we say Ryan is germane to this and directly on point in this argument.  How far back does one go in the chain of causation in order to identify what is the act causing death?  In the end, you cannot have a murder if there is no act causing death, and you cannot have a murder if there is no intent that goes with it.  In this case, there is no murder and that cannot be contradicted.  David Albion, the person who did the killing, was acquitted.  The basis on which he was acquitted must have been self‑defence, that means there is no murder because it means that there is no murderer, and therefore there is no murder to which Ms Osland can be a party.

It may well be that, we say at it highest she could have been tried for and convicted of, perhaps, conspiracy to kill or incitement to kill or attempted murder but she certainly cannot stand convicted of murder where there is not one.  Perhaps, as we have moved on to that issue as to whether there is a crime or not, we would say this, that if one ‑ ‑ ‑

GUMMOW J:   What you say in a way is that what is involved from your client’s point of view is this, that there was this acquittal and that what is involved is an impeachment of that acquittal by this.

MS SCUTT:   That is one of our arguments, yes, there is.

GUMMOW J:   There has been an autrefois acquit.

MS SCUTT:   We are not here to argue, obviously, for Mr David Albion.  We are here to argue for Miss Heather Osland but if one looks at it from that point of view - and that is why we have to say that we do take issue with the majority in Darby - the notion that this Court should ever have adopted the proposition that an acquittal, that is that a verdict of not guilty by a jury, it somehow means that that person was simply lucky in their jury or some sympathy went to them and therefore ‑ ‑ ‑

McHUGH J:   It does not necessarily mean that.  It may be a question of different evidence.  You may have two people charged with conspiracy and one person may admit the conspiracy and there may be abundant evidence to convict that person.  There may be no admission on the part of the other person who is the conspirator.  That person is acquitted.

MS SCUTT:   Yes, but may I say this, your Honour - and as I said we do not necessarily want to get into Darby but we actually would say that this Court, in our submission, ought to look very clearly at Darby and, in fact, with a view to renouncing the proposition that a verdict of acquittal does not mean what it says, namely vis‑a‑vis to state that person is innocent.  What we draw the attention of this Court to is recent judgments of this Court, which I and my learned friends will make a list over the lunch break, where various members of this Court have actually said that, that the verdict of acquittal means that that individual is innocent, vis‑a‑vis the state.

Even, your Honour, one of the persons who was in the majority in Darby, his Honour Justice Gibbs, actually says the same thing in an earlier case and my recollection is that it is Reg v Storey and we will have that reference at the ready.  He was one in the majority.  So we do say actually that the Court ought to revisit that very question.  But to come back - and now you see, your Honour, I am sorry, I forgot what your question was.  I beg your pardon.  You mentioned conspiracy.

McHUGH J:   I gave an illustration to you about confessions.  That was in the context of confessions.

MS SCUTT:   Yes, that is right, that there is a confession.

McHUGH J:   You were saying that you cannot have two people, as in Darby, charged, one acquitted and the other one convicted.  I was pointing out to you that that does not necessarily have to depend upon choice of juries or upon sympathetic jury verdicts; it can depend upon the particular evidence as against each accused.  That is what is put against you in this case and it is one of the matters that sooner or later you are going to have to deal with, and particularly when you refer to the second trial where it appears that the evidence at the second trial was very different.  David Albion was blaming his mother.

MS SCUTT:   We are astounded that your Honour actually raises that because in fact there is nothing before this Court in terms of the actual trial of David Albion.

McHUGH J:   There is in the Crown’s written submissions, so I do not know why you are astounded about it.

MS SCUTT:   Because there are no pages there, there is no material before this Court and this Court cannot act in accordance with material that is not before it on simply the ‑ ‑ ‑

McHUGH J:   But you are talking about the fact that he was acquitted.  Is that before us?

MS SCUTT:   Yes, that acquittal is before the Court because in fact that is what we say is the only issue with regard to David Albion’s trial that ought to be had regard to by this Court.  As I say, we are happy to deal with the issues in David Albion’s trial if this Court wishes to get into that but what ‑ ‑ ‑

McHUGH J:   Yes, but how does David Albion’s acquittal get before us in an appeal against your client’s conviction?  Do you bring it in by way of evidence to impeach the verdict?

MS SCUTT:   We bring it in ‑ ‑ ‑

McHUGH J:   After all, this case has to be determined, at least prima facie, on the evidence that was at the trial.

MS SCUTT:   At the trial of Heather Osland and David Albion.

GAUDRON J:   It can be dealt with on the basis, can it not, that if Heather Osland’s liability is on the basis os aiding, abetting and procuring the commission of an indictable offence, to wit, murder, that has to be proved, and a question arises, by reference to what happened at the trial, whether or not the commission of the indictable offence was proved beyond reasonable doubt.  The next question is really a side question, whether she could be recommitted for trial.  So, the question of the acquittal comes up in relation to that; whether a subsequent trial would be to impeach the verdict of David Osland.  Now, that may be a separate question.

MS SCUTT:   Well, yes, because we take the approach there ought not to be second trial; that, in fact, an acquittal ought to be entered.  Also, we say that if we focus on the first trial, what we find in the first trial is (a) Heather Olsand being found guilty of murder, and (b) what is colloquially known as a hung jury in respect of David Albion; that is, the jury unable to make up its mind.  Now, we say that we can go to that and show that what has happened in this case is wrong and ought to be properly addressed by this Court because, you see, if one looks at that first trial, what one sees is it was put as two persons acting in concert:  David Albion wields the blow, not Heather Osland and, yet, she is the one who is found guilty and there is a hung jury.

Now, if the jury is unable to make up its mind in terms of the perpetrator of the act - and, perhaps, it is better to use the word “perpetrator” rather than this word “principal”, which has other dimensions to it, namely, first and second principal - if we talk about the perpetrator, David Albion, if they cannot make up their mind that means that at least one of those jurors has a reasonable doubt as to his guilt.  That is on his worst case scenario.  On his best case scenario, 11 members of the jury have a reasonable doubt as to whether he is guilty of murder or not.

Now, if they are doubtful that the perpetrator of this alleged crime actually did a crime, they cannot logically, beyond a reasonable doubt, accept that Heather Osland is guilty of murder.  Until they have come to a conclusion with respect to whether the act in relation to which these two people are charged is a crime, they cannot convict her of a crime.  They have to determine that question first, and that is where the directions went wrong, too.  With the greatest of respect, his Honour ought to have said in the directions that it was the responsibility of the jury - and I am relying on both the majority and the minority in Darby in this respect - ought to have said to the jury that they should consider the case against each individual separately and, here, they ought to have been told to consider the case against Mr Albion first, as he was the perpetrator, and, if they came to the conclusion that he was guilty of murder, then, and only then, do they move on to Heather Olsand.  Alternatively, if they find him guilty of manslaughter, then, and only then, can they move on to her.

What we would say, too, to the Court here is this; that when one goes through the authorities that we have cited and, indeed, the authorities we would say generally - at least the contemporary ones - what one finds is that there are two cases, I would say, who are out of synchronisation, as it were, with the majority of cases on this point, and one of them is Darby and one of them is this one and, notably, Darby is a conspiracy, so that we can, in effect, put Darby, perhaps, into a different category.

GAUDRON J:   There is another difference with Darby, is there not?

MS SCUTT:   Yes.

GAUDRON J:   That is a case where they were not tried - is there not some difference as to whether they are tried together or not tried together?

MS SCUTT:   What they say there is that you should try them separately if there is a difference in the evidence.  The majority said you should try them separately if there is a difference in the evidence.  That was the one that we read at page 678 of Darby.  Also, actually, it has just reminded me that what your Honour Justice McHugh raised was the issue about a confession.  Of course, there was a confession in this case of Heather Osland but, you see, it became the evidence at the trial.  But, of course, at the trial both of them were telling the same story anyway.  So it is a completely different thing from Darby, where the confession went to the actual purpose of the conspiracy ‑ ‑ ‑

McHUGH J:   They may have both been telling the same story at the trial, but there was a wealth of evidence against your client that was not admissible against David Albion.

MS SCUTT:   Like what, your Honour, with respect?  What does your Honour - - -?

McHUGH J:   Like all the admissions and the history about ‑ ‑ ‑

MS SCUTT:   What admissions, your Honour?

McHUGH J:   About - I am not here to answer your questions. 

MS SCUTT:   I get your pardon, your Honour, but, I mean, I am interested to know, because it is not my place to volunteer what the differences were, with respect, because we say that if there were any differences, they are differences that favour her - and if it a difference like the telephone intercepts, we say that it is highly questionable that those telephone intercepts were ever allowed into that trial.  When one reads the transcripts of those telephone intercepts, what one reads let us say one of the crucial ‑ ‑ ‑

McHUGH J:   Ms Scutt, those transcripts were admitted into evidence; they were admissible against your client; they were not admissible against David Albion.  There was other evidence to the same effect, was there not?

MS SCUTT:   Your Honour, say, for example, if we take then the intercept where it was alleged on the basis of Ms Osland joining in a conversation with her daughter, Erica Albion, to the effect that the son, Paul, who had gone about talking about this killing, should be “knocked”.  When one goes to that evidence, what ones sees is that Ms Osland is talking about “bashed” and then the word “knocked” - the word “knocked” is in, but in one of the exchanges it is definitely Erica that is talking about “knocked” and Ms Osland talks about “bashed”.  Ms Osland never talks about the word “killed”, and with respect, your Honour, David Albion does. 

In one of those transcripts - and we will bring the page number of that transcript - David Albion talks about Paul being killed.  That is what he says; he uses the word “killed”.  Therefore, with respect, your Honour, we cannot see, and nor can we accept, that there was a substantial difference between the two of them in terms of what was said on the intercepts.  It is the same, or it is worse for him than for her.

If one looks, for example, at the evidence, it will face it head on - the evidence, for example, to the effect that she had attempted to procure Mr Dalziel to kill Frank Osland and then the son Paul gave some evidence to that effect.  If we are getting into the evidence, then this Court has to actually look at that evidence really hard because it is evidence that is so insubstantial and so open to criticism that it ought not to be upon that evidence that this Court holds that Ms Osland has rightly been convicted of murder.  It would be, with the greatest respect, a travesty if the Court was to consider that that was so.  As I say, we are prepared to go through all that evidence but we direct the Court to it and say to regard it very carefully and very clearly because it is highly insubstantial evidence and it is highly suspect.

Even his Honour the trial judge said in the course of the trial that a question did arise in his mind about it and he said words to this effect:  “Because I would have thought it would have been more likely if anything like that was said to Paul, it would have been after he was out of prison, not before”.  He had been in prison in South Australia.  The fact that the trial judge is raising a question about it as to whether the evidence is right actually as being put by Paul as to the date and so forth, and in the trial judge’s view it does not really logically follow that it was said at the time it was alleged to have been said, that does indicate that there was a question in his mind as to the value of the evidence.

We accept, of course, that the ultimate arbiter of the evidence, the facts, is the jury but we would not resile from the approach that the evidence against Heather Osland cannot be said to be substantially different from except in her favour.  If one looks at the intercepts, for example, again that is one of our points of appeal and we do press it because we say that the intercepts ought never to have been allowed into the trial on the basis that they were irrelevant and/or they were inadmissible as being so highly prejudicial that all that they could do was wrongly prejudice the jury.  But if I may come back to this issue ‑ ‑ ‑

KIRBY J:   Dr Scutt, at some time - I am just getting a little lost in the structure of your argument; you have a lot of points, and it is important, I think, for us to deal one by one with those matters which you wish to press and add to your written submissions.  You have made the first point about the act being the murder; you have made a second point in passing about inconsistency of verdicts.

MS SCUTT:   Beg your pardon, your Honour, we made the point that the act was not murder.

KIRBY J:   No, but I mean you made the point about the act of being essential to murder.

MS SCUTT:   Yes.

KIRBY J:   Then you have made the point about inconsistency.  You have now passed on to the inadmissibility of the intercepts.

MS SCUTT:   Well that was just in passing, yes.

KIRBY J:   I would be very much assisted if you can take the points that you are going to argue in a way that is logical, and please do not assume that I am familiar with every page of the 12 volumes of appeal books.  It is just in the nature of things, we just do not have the time to read the whole of them, we have to depend on you; that is why chronologies are very important.

MS SCUTT:   Yes, I am indebted to your Honour.

KIRBY J:   So, if you could just, as it were, tell me when you are moving from one of the points and putting it, that would help me.

MS SCUTT:   Yes, thank you, your Honour.  Well we would say that our first point is that the verdicts in this case are inconsistent and that the conviction of Ms Osland cannot stand because it is inconsistent, both with the failure of the first jury to make a decision with regard to the liability of David Albion and then ultimately it is inconsistent with his acquittal.

KIRBY J:   Now, as I understand it, in McKenzie, the Court pointed out, drawing on past authority, that you can have inconsistency in two senses:  first, inconsistency in the legal sense, that you just cannot have the two verdicts standing together, legally; and then, inconsistency as a matter of logic and as a matter of the two verdicts not being able to stand together logically and consistently.  Now do you make the point that these were inconsistent verdicts in law, that they cannot in law stand together, or do you make the point that in logic you cannot have one or the other?

MS SCUTT:   We make the point that it is both.

KIRBY J:   Or both.

MS SCUTT:   Yes, and the reason that we are here before the Court is to have this Court say that in law they are inconsistent and,therefore, the conviction ought not to stand.  We make our first point in relation to the issue ‑ ‑ ‑

GUMMOW J:   What should have happened then at the trial?

MS SCUTT:   At the trial?

GUMMOW J:   Yes, when the jury came back.

MS SCUTT:   What we say should have happened at the trial ‑ ‑ ‑

GUMMOW J:   When the jury came back.

MS SCUTT:   When the jury came back with its verdict?

GUMMOW J:   Yes.

GAUDRON J:   There should have been a motion, should there not?

MS SCUTT:   Yes.

KIRBY J:   Should you have moved for the entry of a verdict of acquittal immediately?

MS SCUTT:   Yes, yes.

KIRBY J:   On the basis that, in law, the two verdicts inconsistent as they came out could not stand together?

MS SCUTT:   Absolutely, because ‑ ‑ ‑

KIRBY J:   But you did not?

MS SCUTT:   Well, I was not there, your Honour, so ‑ ‑ ‑

McHUGH J:   And you could not, could you?  The most you could - you could not move for a verdict of acquittal.  The most you could have done at the trial was to move to have the verdict of murder set aside, that is all, so that you would stand for a new trial the same as David Albion.

MS SCUTT:   Yes, and actually that is why, you see, when you look at it - if we look at it from that point of view, say if that is what had happened, then they would have gone on trial, perhaps together or perhaps separately, but if they got on trial separately as we say David Albion should have been tried first - but if they got on trial together again that is what ought to have happened and we do not know what the outcome of that would have been.  In fact, it does not behove us to actually speculate as to what the outcome would have been only to say that on the basis that now is before this Court and elsewhere, David Albion has been acquitted and therefore ‑ ‑ ‑

KIRBY J:   But there was not inconsistency.  The first jury came back unable to agree.

MS SCUTT:   Yes, there was.

KIRBY J:   It was not as if they came back and said, “Guilty for your client, not guilty for David.”

MS SCUTT:   Your Honour, there is inconsistency because they cannot make up their mind about the person who perpetrated the act.  There is obvious inconsistency when she is convicted and he is not.

McHUGH J:   There may not necessarily be so on one theory and that is why I want your assistance on this.  One theory, the theory of the Crown case, is that this was a common purpose case.  Now, on the cases, there is no doubt, as I understand it, that in a common purpose case, one accused can be convicted of murder and another accused convicted of manslaughter.

MS SCUTT:   Yes, Barlow, for example.

McHUGH J:   On one theory of the Crown case it is possible that the jury were convinced that your client was guilty of murder on that basis but was unable to agree on either murder or manslaughter for the other particular accused.  Now, what is inconsistent on that theory?

MS SCUTT:   Because they have not decided that - first of all, it is not for us to speculate what the jury was doing, or not doing, or what they were thinking.  That actually is not for us.  We cannot enter into that realm of speculation.  But the fact is that, if they had decided on - - -

McHUGH J:   I am not sure about that.  I think at least one thing that courts do, whenever asked to set aside a verdict on questions of inconsistency, is to work out whether there are hypotheses which will explain the verdicts and, so, you have got to speculate to that extent.

MS SCUTT:   With respect, your Honour, what we say is that you cannot move on to murder until you have decided if David Albion is guilty of anything and, if so, what.  If, for example, we do go to the cases where - I was earlier saying that the two cases that stand out in this panoply of cases are this one and the Darby one, and we can put that to one side because it is ‑ well, on one argument one could put to one side because it is a conspiracy case and, in deference to your Honour, I will say I am still dealing with the “inconsistent verdicts” issue.

If one looks at the cases like Barlow, for example, what one finds there is that - I think it was five convicted of murder because two plead guilty to murder, three are found guilty of murder, and then the sixth is found guilty of manslaughter.  Now, one might quibble with that outcome, but one can see that logically there is an argument that it can follow, because there has been decided that there is an unlawful killing. 

If, for example, you look at King v The Queen (1986) 161 CLR 423, what we see in that case is that there is, without a shadow of a doubt, a murder. There is an unlawful killing. A woman is found in her home, in a domestic setting, in her home suburb, with several bullets in her body, and there is no question that this is an unlawful killing and two people go on trial. Mr King goes on trial as the person who hired the so‑called hit man to do the job and, midway through the trial, suddenly bells begin ringing for the prosecution and they realise they have a problem on their hands, because there is a possibility that Mr Matthews may not be seen by the jury as the person who was the actual hit person; that is, the one who did the killing. So, they then try to change it halfway through and say, “Well, King was the one who hired the contract killer, and he did hire Matthews but, if Matthews was not the person who did the killing then, there she is, lying dead in her household, she is murdered, somebody murdered her and it may have been another person that Mr King contracted to do this killing.

One can see in that case that the outcome is one that is understandable, logical and can stand in law because you have an unlawful killing.  So Mr King is found guilty on the basis of there having been a crime, namely, an unlawful killing.  If one looks at another case, Matusevich has been cited as one that would disfavour Ms Osland’s case.  We say that there are some problems with Matusevich not for us but in terms of its actual logical consistency in a sense.  But in Matusevich what one can say is that there was a dead body.  That was killed in circumstances that raised the conclusion that the killing was unlawful.  It is not as clear as King but in that case my understanding of it was that evidence that both the persons involved there, Mr Matusevich and Mr Thompson, had actually done some act that itself led to the killing.

May I describe it this way.  If you have a group of people who engage in a killing and together they all beat the person who then ends up dead, one could see that some might be acquitted on the evidence, some might be convicted, and one would say that quite clearly they all joined in a common purpose and they were all equally participating in that unlawful killing and what you have is a body that is dead in circumstances that are unlawful.  In this case that we have here we say again that there is no crime and therefore she cannot be held guilty of it and that one has to look at the string of cases and see that what the authorities are talking about is inconsistency where a crime is identified in legal terms - that is, there is a finding that there is an unlawful act, an unlawful killing - and then there can be different degrees of participation in that unlawful killing.  But here that is not what the facts are.

GAUDRON J: Does it not come to this, that to the extent that the Crown case was one of acting in concert, the failure to convict the son left open the possibility, as a reasonable possibility, that he was acting not in accordance with the plan but on some other basis, namely, self‑defence, and that having been so, at least logically there must have been an inconsistency and there must also have been an inconsistency in law because it was a failure to conclude that an offence had been committed to which your client was a principal in terms of section 323?

MS SCUTT:   And, with respect, actually that is one does have to conclude because in criminal law, one has to act effectively in the accused favour, that is, if there is a difference of opinion.  If, for example, as your Honour Justice McHugh said, if it were that they were tossing up between - and I do not use that in any disrespect to the jury - but they were trying to make their decision between self-defence and provocation which were what was put, then what we would have to conclude for the purpose of this exercise is that it was self-defence because we have to err on the side that favours Ms Osland.  Not just we, her counsel, but the criminal law has to take - - -

McHUGH J:   Well that is a view.....principle, with great respect, Dr Scutt.  After all, this is a question about verdicts and as to whether there is a rational explanation of the verdicts.  Now, if one explanation is that the jury were divided, not on self-defence but on provocation, so far as David Albion was concerned, then it is a very different scenario.

MS SCUTT:   Your Honour, what I would say is that if it is a novel proposition that I have put to the Court, then we certainly do not resile from it.  In fact, we press it.  But, also, as the second jury determined that he was not guilty, and that can only be on the grounds of self-defence, then what we have to look at is that and perhaps import back to the first - - -

McHUGH J:   Can I just interrupt you to say, as Justice Gaudron pointed out to you, the only possible relevance of the second trial is if you get this verdict set aside and the question then comes into play whether or not a new trial should be ordered if it would impeach the verdict from the second trial.  But it does not seem to me at the moment, and I do not think Justice Gaudron suggested it to you, that you can take into account what happened in the second trial for the purpose of seeing whether something went wrong in this trial.

MS SCUTT:   Your Honour, we say that you can.  We say that there are inconsistent verdicts here.  The inconsistency lies.  There are two sets of inconsistent verdicts.  There is a conviction of murder and an inability to make a decision, and there is a conviction for murder and an acquittal, and we say that - - -

KIRBY J:   I thought you told Justice McHugh earlier that you could not take into account the evidence in the second trial.  If you can only take into account the verdict but not the evidence, then there is no way in which you can evaluate what might or might not explain the reason for the second verdict.  We do not have the evidence of the second trial.

MS SCUTT:   We say, one, we do not need to go to the second trial for the purpose of having Ms Osland’s conviction set aside, but we say because they could not make up their mind.  We do press that the fact that there is an acquittal for David Albion does mean something, and it means more than just as to whether there will be a retrial or not.  We say that it goes to the essence of whether there are inconsistent verdicts or not.

GAUDRON J:   Is it any more than this:  if the principle, for example, in King is upheld, namely that the Crown cannot be allowed to make a different case from that made at the first trial, to make that case would be to impeach the verdict subsequently entered - the verdict of not guilty in the case of David Albion and therefore the proper order is not guilty?  Does it go beyond that, though?

MS SCUTT:   No, that ‑ ‑ ‑

GAUDRON J:   Or the proper thing would be simply to say, “Set aside the conviction; order that there be no retrial”.

MS SCUTT:   I mean, obviously we would say that an acquittal ought to be entered because there should be an acquittal on the record for her, just as there is for him.

McHUGH J:   Can we look at what we should do in terms of a new trial without having regard to the grounds of the evidence and the way the case was conducted?

MS SCUTT:   We say that it is not ‑ ‑ ‑

McHUGH J:   According to the Crown’ submissions, the evidence was totally different at the second trial.  I get the impression that David Albion was, in effect, blaming his mother for the murder, at the second trial.  If that is so, it is possible we may have to look at the evidence if you say, “Well, there should not be a new trial but an acquittal entered.”

MS SCUTT:   We say that one does not get to that point, because we say that our point 1A, as to inconsistent verdicts and the issue about accessories and principals, is the one that this Court ought to operate on, and if this Court operates on that basis then the only option for the Court is to enter a verdict of an acquittal because, quite clearly, as we have said, there is no crime.  But if we could return to our submissions ‑ ‑ ‑

MR CALLINAN:   Dr Scutt, just before you go on, assuming that there were an acquittal, I thought you said before that there could be no impediment to a new trial for attempted murder?

MS SCUTT:   No, well we did mention the possibility of attempted murder, but ‑ ‑ ‑

MR CALLINAN:   And some other possible offence also.  What about conspiracy even?

MS SCUTT:   Well, then they could both, I expect, be put on trial of conspiracy, possibly, but the point is, is it not, about conspiracy, that if there is a substantive offence that is alleged to have arisen out of conspiracy, then that is what people should be put on trial for, not conspiracy.

MR CALLINAN:   Right, leave aside conspiracy, what about attempted murder?

MS SCUTT:   That possibility, I expect, one would have to concede, may be there.

MR CALLINAN:   There would be no autrefois acquit or anything of that kind?

MS SCUTT:   Well there could well be in fact, yes, I am sorry, because in fact ‑ ‑ ‑

GAUDRON J:   Could David Albion not have been convicted of attempt on the murder charge, I do not know?

MS SCUTT:   Well, actually in fact, I am sorry, I ought not to have said attempted murder, because in fact we would say that is taking it too far.  If you take it at its worse, in terms of what was alleged against these two people, say that they dug a whole for the purpose of, we do not in any way support this version ‑ ‑ ‑

MR CALLINAN:   I am sorry to interrupt you, but I think you also mentioned incitement to murder?

MS SCUTT:   If one were able to make a case that Heather Osland, yes, pressed David Albion, incited him in some way to do an unlawful killing, then perhaps that would be open for her to be tried, yes, but, we would say, I mean the evidence certainly, we would say it would be a foolish prosecution, actually, that would proceed in that way.

MR CALLINAN:   That would be a matter for the prosecuting authority.

MS SCUTT:   Yes, it would, and particularly when one looks at all the evidence that was before the court in the trial of Heather Osland and David Albion, one can see that it would be difficult, in our respectful submission, for the Crown to have sustained such a charge at any future trial.

MR CALLINAN:   I do not want to interrupt your argument, I just wanted to look at the possibilities.

MS SCUTT:   Yes, thank you.  If we go to what the trial judge said, if I may just conclude on this first point, that is about the principals in terms of accessory or aider and abetter, and so on ‑ ‑ ‑

GUMMOW J:   At some stage, will you be referring us to the Privy Council judgment that is on your list, Surujpaul v The Queen?

MS SCUTT:   Yes.  We actually put Sweetman because it actually refers to Surujpaul.

GUMMOW J:   I know, but that is the decision of one judge in New Zealand; Surujpaul is a decision of the Privy Council.

MS SCUTT:   I know, but we though that we ought to be - as a matter of ‑ ‑ ‑

GUMMOW J:   You put both on, that is all.

MS SCUTT:   We have both on, absolutely, we have both on the list.  It is just that on the list of what we would read from we thought that we had to be economical, I expect, where it is and ‑ ‑ ‑

GUMMOW J:   It is also reported in (1958) 1 WLR 1050 as well as in (1942) Crim App R 266.

MS SCUTT:   Yes.  We certainly do rely upon this Surujpaul and ‑ ‑ ‑

GUMMOW J:   Section 24 referred to of the British Guiana law looks like 323, does it not?

MS SCUTT:   Yes, it does, your Honour.

GUMMOW J:   It seems to have a long history.

MS SCUTT:   What we say to that, is that the reason that this ‑ ‑ ‑

GUMMOW J:   The report in the Weekly Law Report says it starts in statutes in 1826 in England.

MS SCUTT:   Yes.  The reason that we rely on this case, your Honour, is because this is one that is effectively on all fours with ours, because you have ‑ ‑ ‑

GUMMOW J:   That is what I wondered.

MS SCUTT:   Well, because you have a proposition, do you not, that a group of people have done an unlawful killing - five people being charged with murder - and then only one of them is convicted, and that one has done the act that caused the death.  Therefore, the court says, well, that simply is a contradictory, inconsistent verdict that cannot stand and that the conviction has to be quashed, and that that person, in those circumstances, must be considered to properly be acquitted absolutely on the basis that we put here, that there was no crime committed and, therefore, he cannot be guilty of it.  So that we do refer to that case and ‑ ‑ ‑

KIRBY J:   Would you give me the name of that case again, the Privy Council case.

MS SCUTT:   I beg your pardon.  It is Surujpaul called Dick v The Queen (1958) 1 WLR 1050, and at page 1057 what the Court said was:

Whatever may have actuated the jury in coming to these inconsistent verdicts, their Lordships are satisfied on an examination of the evidence that there was no distinction with regard to the evidence relating to the commission of the substantive offence as between the appellant and the other accused which could justify the result arrived at.

All that we can say is that we do rely strongly upon Surujpaul v The Queen and, particularly, because the facts are very similar to that here and it is a case not like the others where you have somebody convicted of manslaughter, another person convicted of murder but it is where you have an acquittal of the actual people that did the act causing death which is on all fours with this case here.

GUMMOW J:   Well, it is not really because there was a verdict of not guilty.

MS SCUTT:   That is what we are saying.  It should be in this case, a verdict of not guilty.

GUMMOW J:   I know but it did not happen in this case at the first trial, the trial we are talking about.

MS SCUTT:   Sorry, your Honour.

KIRBY J:   The jury did not agree on a verdict.  It is not an acquittal.  It is just a failure to agree.

MS SCUTT:   Yes, but surely the principle, with respect, your Honour, is the same.

GUMMOW J:   That is what I am wondering.

MS SCUTT:   Yes, because if the jury cannot agree on the person who has done the act then - in order to get to first base with Heather Osland you have got to get to first base with David Albion.  You have to get to first base with the perpetrator because until the person who does the killing is found guilty of something, you cannot find somebody else who was associated with that killing as guilty of an unlawful killing.  It is an impossibility.  I mean, take for example ‑ ‑ ‑

McHUGH J:   What is 11 of them thought he was guilty of murder - that is David Albion - and one guilty of manslaughter so that they could not reach an agreement?  Why could she not be convicted?  If, for example, the jury had convicted him of manslaughter then her conviction for murder could stand, could it not?

MS SCUTT:   No, because we refer to Cheatle v The Queen (1993)  ‑ ‑ ‑

McHUGH J:   Cheatle?

MS SCUTT:   Cheatle.

McHUGH J:   Yes, I am well aware of Cheatle.  I am just wondering what its relevance is but no doubt you will tell me.

MS SCUTT:   We say that in that circumstance at page 553 what the Court points out there is that if there is one person who has a reasonable - no sorry, if we operate on the basis that a jury is 12 persons who are fully functioning, reasoning human beings, then if one of them has a reasonable doubt as to guilt, that means, in this case, there must be a reasonable doubt that properly extends also to Heather Osland because if there is a reasonable doubt as to whether David Albion is guilty then there is a reasonable  ‑ ‑ ‑

McHUGH J:   No, not guilty, but whether guilty of murder or manslaughter.

MS SCUTT:   Yes.  Well, guilty of anything.

McHUGH J:   That is, all 12 jurors say, “He is definitely guilty of either murder or manslaughter; she is guilty of murder.”  Now, what is inconsistent about that?

MS SCUTT:   I come back to the point about Cheatle; that if there is one person - and we are happy to say if there is one person on that jury who believes that there is a reasonable doubt about David Albion’s guilt - guilty of anything - then there has to be a reasonable doubt that extends to Heather Osland and that, as in this case, they came - - -

McHUGH J:   Well, can I just stop you there?  Supposing the jury had come back and they had found him guilty of manslaughter and her guilty of murder, now, on the cases, they are verdicts that are open.

MS SCUTT:   Well, there can be some argument about that, but, yes, on the authorities, though one can say that over some strong dissents that that could be so.

McHUGH J:   Right.  Well, then, if the jury in this case came to the view that David Albion was guilty of either murder or manslaughter, but could not agree on which, why could they not - is there anything inconsistent with the jury finding her guilty of murder?

MS SCUTT:   We say, first of all, that we cannot really get to that point of determining what it was that the jury had a reasonable doubt about; that what one has to say with regard to him, that if they had a reasonable doubt we do have to err on the side of saying, well, the possibility is that the reasonable doubt was that he was not guilty by reason of self‑defence, or that he was guilty of manslaughter by provocation, or that he was guilty of murder, they cannot make up their minds.  Therefore, what we say is, until they focused on what he is guilty of, they cannot come on to Heather Osland and determine what she is guilty of, and that is where the error lies in this trial, in a sense, as I said before, in terms of the directions, because the judge did not properly direct them that they had to deal with him first.  Because, you see, your Honour cannot - with the greatest of respect, in our submission, your Honour simply cannot sit and say that because this was a possibility, or that was a possibility, then her conviction is sound, because we do not know - they are all possibilities.  There are three possibilities there and, until that reasonable doubt was cleared up in terms of the jury, they did not have a right to move on to the next part of the case, which was to deal with her.

GAUDRON J:   For your purposes, it is sufficient, I take it, then, to say there was a failure to give a proper direction, having regard to the facts.

MS SCUTT:   Yes.

GAUDRON J:   The verdict should therefore be set aside.  The question whether there should be a retrial should be determined on the basis that the Crown cannot make a new case against her, by reason on the principle in King, and to make the case against her that was previously made would be to impeach the verdict subsequently obtained by - - -

MS SCUTT:   David Albion.

GAUDRON J:   David Albion.  In one sense, it is a - you do not have to worry about the inconsistency in this case if you can make good the need for there to have been a direction in this case.

McHUGH J:   That may be so, but we are dealing with the question on the basis that you are trying to argue the verdicts are inconsistent.  The hypothesis is that there is nothing wrong with the direction.  You have got to deal with it on that basis.  Whether there has been a failure to direct or a misdirection is another point altogether.

MS SCUTT:   I can only repeat, your Honour, that it surely must be - first of all, we have not adopted the approach that the direction was correct, because our point is that the direction was wrong.  If one says there is nothing wrong with that direction - and one would hope that the High Court would not say that - but if one says that, then what we say is that the outcome is inconsistent on the basis that it is not proper for the Court to speculate as to what the jury did or did not do or what basis they came to their inability to determine guilt or otherwise of David Albion.  One has to, in our submission, say or accept the position that is actually most favourable, we say, to Ms Osland, which is that the possibility is that they were hung on whether there was actually a crime at all. 

Because, you see, if I could go to what the judge actually said on this point, and what is notable is that throughout the trial he talks about the accused - and whether he is dealing with it collectively or singularly one really does not know, and one has to say, with respect, that the person doing the transcript had the same difficulty.  For the sake of those doing the transcription in the present matter I would hasten to say that I am sure that we all appreciate the good efforts of those who type up transcripts, but the difficulty lay in the way that the judge put the matter, with respect, in that on one occasion in this transcript they have “accused’s” as a singular in the middle of paragraph where there has been discussion where “accused” could have been used either in the singular or in the plural  That was a problem in this case.  Let me refer the Court to appeal book XI, page 2036, where the trial judge noted that the job of the prosecution was to prove that:

an action of the person or persons charged was the cause or a cause of the death of the deceased.  It does not have to be the sole cause of death, but it must be a substantial cause of death.

There, he has got an action of the person or persons charged and he does not actually particularise what the actions are.  This Court, in other cases, has said that there is good reason for saying that the Crown has to properly particularise the indictment, as it were.  That is, in this case, as we have agreed, all they said was that it was a charge of murder against the two of them.  But perhaps, with the greatest of respect, they ought to have looked more clearly at what they were actually dealing with so that this problem did not arise.  Then the trial judge went on to observe, in this section of the transcript, that the evidence on this point, that is:

that an action of the person or persons charged was the cause or a cause of the death of the deceased.  It does not have to be the sole cause of death, but it must be a substantial cause of death.....The evidence on this aspect is not extensive, it is not a matter that has been argued by the defence, that is it is not argued that there was no causing of death.....It may seem clear enough that Osland’s death was caused by multiple blows, or at least one blow, but multiple according to the evidence, to the head which fractured his skull and damaged his brain so that he died within minutes.....they both saw him die, they knew he was dead and they buried him dead.

There is no particularisation in that as to what is needed for liability for Heather Osland to flow.  There is no separation out of the actual acts that caused the death.  There is no allusion, even, to the fact that there was one wielding the pipe and there was one who was standing by.

CALLINAN J:   But might not that be so because of the evidence in the interview at page 1792 of volume IX of the appeal books, starting at line 70.

MS SCUTT:   In the interview?

CALLINAN J:   Yes.

MS SCUTT:   Where she said “We did it ‑ ‑ ‑

CALLINAN J:   Well:

Who actually hit him?

Well, we - it’s together.  I’m not saying David did.  He - I wanted to do it but I wasn’t strong enough, David said.  Poor David.

How many times did you hit him?

A little lower down at line 76:

We hit him together, it’s joint responsibility.  I know it is, it’s not fair that David’s got to take that blame.

Not only does that appear to be direct evidence of actual participation in the act that caused the death, but it also suggests to me an explanation as to the way in which the trial was conducted and the reason why  the trial judge gave the direction to which you have just referred and did not attempt to single anything out.

MS SCUTT:   Yes, your Honour, but this, as we know, is the police interview which was before the court certainly, but the overwhelming evidence before the court, there was no challenge to that at all.

CALLINAN J:   But it is not a question of overwhelming evidence.  The jury could have acted on that evidence, could they not?

MS SCUTT:   No, your Honour, because, with respect, if they did, then why did they not find David Albion guilty too?

McHUGH J:   That is not evidence against him.  That is evidence only against her.

MS SCUTT:   Yes, your Honour.

GAUDRON J:   But you would say by reference to what was said in Morris that one has to look at the reliability of that.  If the jury were to be instructed by reference to that, they would have to be instructed as to the reliability of that in the light of the other evidence.

MS SCUTT:   Because when you read it, if one reads this, it is quite clear what she is saying and meaning there on the face of it.

CALLINAN J:   I do not think it is clear.  I think it is equally capable of an interpretation that she was an actual participant.

MS SCUTT:   Well, your Honour, all that we can say - - -

CALLINAN J:   I think you have to face that possibility.

MS SCUTT:   All that we can say is if one takes that in isolation, one may say that.  But when what she says is:

it’s joint responsibility.  I know it is, it’s not fair that David’s got to take that blame.

Quite clearly, that can readily be accepted as, here is a woman, a mother, whose son and she have been in the circumstances in which they were and he happens to be the one that struck the man, that caused his death.  And she is actually attempting to be -  I am struggling in an effort not to fall into a stereotypical assumption but that, surely, one can accept that in those circumstances of being interviewed by the police, and this was at the end of a very long interview, a very - - -

CALLINAN J:   Look, I might find it very very persuasive what you say, but it may not have been persuasive to the jury.  Can I ask you another question: was there any pathology, any evidence that the victim was dead when the plastic bag was tied?

MS SCUTT:   Absolutely. 

CALLINAN J:   There was.

MS SCUTT:   Yes, your Honour, absolutely.  You see, there is no question of that and so we would really take issue with the proposition ‑ ‑ ‑

CALLINAN J:   No.  I just want to know, was there evidence - and do not worry about it now but if you can draw my attention to it at some stage, please.

MS SCUTT:   Absolutely.  And it is in that same interview - in the interviews  with the police ‑ ‑ ‑

CALLINAN J:   No, I read that.  I said, is there any evidence from a doctor?  Is there any - - -

MS SCUTT:   Absolutely, from the pathologist - - -

GAUDRON J:   Dr Cordner.

MS SCUTT:   Yes, that is right, who said that the skull was smashed, the skull was split.

CALLINAN J:   If you give me the reference later.

MS SCUTT:   Yes, I will, your Honour, thank you.  Yes, he was dead on the first hit.  He was dead on the first blow, that is what they have said.

CALLINAN J:   Do not trouble about it now, I will get it later, thank you.

MS SCUTT:   We will, yes, thank your Honour.  And then, anyway, his Honour went on to say that:

The Crown must prove that the act or acts of the accused -

Not clarifying one or both of them:

did cause death and it must establish that at the time of death, the act or acts here alleged, namely the blows with the steel bar, were an operative and substantial cause of death.

We also actually note that there is the use of the expression “steel bar”.  At one stage it becomes an “iron bar”, then it is a “pipe”, and in fact the weapon in the evidence, as we understand it, is that it was a pipe and yet both the trial judge and the Court of Appeal continually refer to a bar, whether it is iron or steel.  We note that it is a small point in one sense, but we would also say that when it comes to any charge, any criminal charge, but particularly when it is a criminal charge of this nature, it surely must be incumbent upon courts to be absolutely explicit or exact in the way that they describe the events that lead to the death, particularly when it can ultimately lead to a person being convicted of murder.  And it is not good enough simply not to know what it was that this weapon is that killed this man.  We have used in our submissions metal pipe or bar, and sometimes steel bar, and sometimes iron bar, in effectively with queries because we have had to quote from what the trial judge has been saying.

Now we just briefly allude to the case of the. v Lowery & King (No 2) (1972) VR 560. I think I am just being told we did not put this in our list of what we were going to read from, so I am not going to read from it actually.

GAUDRON J:   Well, we have it.

MS SCUTT:   Yes, that is good, because it is on our list of authorities, but I am not going to read from it anyway, I will simply refer to it.  What has been said is that that case covers our case, that is, Ms Osland’s case, in that there it was said that all are equally guilty of the crime regardless of what each played in its commission, and the Crown actually put that proposition as we heard it in the leave to appeal application as well, and there they were putting a proposition, and it is put here, that it did not matter who weilded the pipe, for example.  We say that it does matter in this case, because it is not a case of where we do not know.  In a case where there are several people weilding blows, whether it is fists, whether it is with an implement, say a knife or a bar or whatever, and you do not actually know with a certainty who was the one whose knife blade or whose bullet - in front of a firing squad, for example - or bar, actually was the one that caused the instant death, you can say, as they are all in it together, it does not matter who was weilding the pipe, but that cannot, as we say, be turned on its head to support the conviction of Heather Osland, because, as we say, it does matter, because you know who weilded the implement, and once you know who weilded the implement, then one has to find liability within that particular individual.

Also, we draw the Court’s attention to the fact that in Reg v Lowery & King it was not said that, even if all the rest are found not guilty, anyone of them can be found guilty; it did not turn it around that way, and we think that this Court ought to read that case in that way as to precisely what the circumstances were, what proposition the court was putting there, what the principle was that was found and the solid distinction between the facts in that case and the facts in this one.  We say here, for example, if it were a case where what had been put and it was the suggestion that they both struck the blow or that, you know, one had a knife and one had a pipe, and so on, and we did not really know whose implement it was that caused the death, then it could well be a matter for Reg v Lowery & King, but this is not that case, and we say that that has to be distinguished from the present case.

We say also that on the worst case scenario for Heather Osland, even if it were the case that they had planned to do an unlawful killing - say if they had, on the worst version of these facts, sat down and planned together to murder Frank Osland, the fact is that their plan did not come off, and this is where you can contrast it, you see, with the Darby Case, because there, what they were being prosecuted for was conspiracy, because the plan did not come off.  The people here are not being prosecuted for conspiracy or planning together and so on; what they are being prosecuted for is the substantive crime.  Whatever happened here, the fact is that the plan was frustrated or it no longer existed at the time that David Albion struck the blow, and what tells us that is his acquittal and what tells us that there was a reasonable doubt that it was there is the jury that could not decide in the joint trial.

KIRBY J:   But did not the plan come off from the point of view of the deceased?  I mean, there was the plan to administer a stupefying drug, there was a plan to dig a hole, there was a plan to strike a blow.  Because David was a stronger person, he was brought in, apparently, and the deceased was killed.  I mean, from the point of view of the deceased, who is not, of course, here to express his evidence on any of this, the plan succeeded entirely.

MS SCUTT:   Your Honour, may we say that we have submissions to make in relation to that notion of planning and so on.  But if we take it in the strongest terms, yes, it is true that Frank Osland is dead, but the proposition is that Ms Osland wanted him murdered and, whether she wanted him murdered, the fact is, he was not murdered, so that her plan, if that were her plan, did not succeed.  So, she has not got what the proposition of the prosecution was, that she wanted, namely, the murder of Frank Osland.  He is dead.  We cannot resile from that, quite clearly.  But he is dead by a lawful means; that it was a justifiable homicide, it was not unlawful.  So, her plan, if she had one, has not succeeded.

One, of course, always has concerns where person’s lives are ended in unnatural circumstance, but what the focus of this Court must be is on Ms Osland’s intention, the acts in which she engaged - the acts in which she engaged - and it cannot be this bootstraps argument of, “Well, the man is now dead.  She wanted him murdered, on that proposition, therefore, she has succeeded in her wish that the man be dead, although he has not been murdered and, therefore, she can be held guilty of murder, because he is not murdered, he is dead.”  Now, what we would like to move to - - -

McHUGH J:   I think Justice Kirby has put to you that she wanted him killed and that - - -

MS SCUTT:  

She wanted him murdered, is the proposition that the prosecution took.

McHUGH J:   Well, that is the effect of it but - - -

MS SCUTT:   Sorry, your Honour, but what she was prosecuted for was murder, not for killing.

McHUGH J:   Exactly.  But that is the legal characterisation put on what occurred and, in certain circumstances, and notwithstanding that she wanted him killed, if your defence of self‑defence was made out, or a defence of provocation, it may not amount to murder, either because there was an acquittal or because the verdict was reduced to manslaughter.  But for the purposes of legal analysis, she intended to kill him - that is what Justice Kirby put to you - and he was killed.

MS SCUTT:   What I understood his Honour was putting was that she intended him to be killed unlawfully, and that is what, on that basis, she did.  Our case is other than that, but on the worst case scenario, she intended him to be killed unlawfully and she did not get her wish.  This Court cannot resile from that proposition, that there is a very big difference ‑ ‑ ‑

McHUGH J:   Well, perhaps it can on this analysis, Ms Scutt, on the basis that the first jury found that she was responsible for his unlawful killing, and because of her intention, she was guilty of murder but, in so far as the son was concerned, they were unable to determine whether he was guilty of murder or manslaughter in respect of that killing.  So, on that basis, there is no inconsistency.

MS SCUTT:   Your Honour, ultimately we would say this, that there is an inconsistency because we do not know and they also could have been contemplating that he was not guilty, and what we do know - we cannot simply stop at that point of the hung jury because we have the ultimate acquittal.  But what we also know is, and I can only say it again in response to your Honour’s proposition, that once there is a reasonable doubt about his guilt, in whichever way it is framed, it has to extend to her and that is what went wrong here.  And that, if he had a hung jury, on the basis as your Honour puts, then she had a right to have a hung jury on the same basis, so that then they would go on trial again, together or separately, or whatever, and another jury could make up their mind as to whether an unlawful act occurred.

McHUGH J:   Yes, I understand the way you put that, I understand that argument - the way you have put that argument.

MS SCUTT:   Thank you, well, perhaps, if we ‑ ‑ ‑

CALLINAN J:   Just before you go on, if I can remind you of that passage from the record of interview, there is no need to go back to it, but she adopted it quite expressly, what she had said at page 960 in appeal book number V in her evidence in‑chief.  Indeed, her counsel expressly invited her to do so, and she did.

MS SCUTT:   Yes.

CALLINAN J:   She said:

You told the police in your interview what happened after David got the pipe?---Yes.

And how Frank was killed?---Yes.

Is that the truth?---Yes, it is.

So you have an express adoption which would include an adoption of the passage that I have put to you before.  Now, if you take the possibility that Justice McHugh drew attention to, it might well have been that on the retrial of her son, the evidence was entirely different.

MS SCUTT:   Your Honour, the clear recollection of myself and my accompanying counsel is that it was never put to her by the prosecution that she had wielded the bar with David Albion.

CALLINAN J:   It did not have to be.  She gave the evidence herself.  It is her evidence in‑chief.  Why would the Crown want to put it to her when she has already sworn to it?

MS SCUTT:   Your Honour, she was not taken through.  What happened here ‑ ‑ ‑

CALLINAN J:   It is plain what happened.  She was asked whether she wanted to adopt it and she did.

MS SCUTT:   She had three police interviews, your Honour.

CALLINAN J:   We know that.

MS SCUTT:   She simply says that she agrees, yes.

You told the police in your interview what happened after David got the pipe?

Et cetera -

And how Frank was killed?---Yes.

Is that the truth?---Yes, it is.

GAUDRON J:   Would it not be the case - in an ideal world, at least, the trial judge would have instructed the jury to determine what was the act causing death.  Was it a blow by Mrs Osland as this might be read?  Was it a blow by David Albion?  If it was a blow by David Albion, then other things would have to follow before they could convict Mrs ‑ ‑ ‑

CALLINAN J:   Why could not the administration of the contaminated curry have been a necessary ingredient of the murder?  It would not have occurred without that and your client was wholly responsible for that or certainly, at least, was a major participant in that.  She cooked the meal and ground up the tablets and put them in the curry.  I mean, the killing could not have occurred without that.

MS SCUTT:   Your Honour, with the greatest respect, that proposition contains within it a very large number of strands.  Let me say this, that if the Court were to adopt that approach in this case then what the Court is doing is stringing out the notion of causation and actus reus, we say, to an inappropriate degree.  Where does one say that the causation begins or ends in this?  Where does one say that the causation begins or ends in any crime?  You see, what happened here, on her evidence, was that she put the tablets in the food to quieten him down.  Now, there is one ‑ ‑ ‑

CALLINAN J:   After she had participated in the digging of the drain.  That is the only reason why she did it?  She exchanged knowing glances with David as to what they were going to do.  That is her evidence in the record of interview and it is her evidence in‑chief.

MS SCUTT:   Your Honour, may we come to deal with that point, because we accept it is a matter with which we must deal, but may we first deal with the proposition that Mr Albion acted as an innocent agent.  In one sense it fits in with that your Honour has raised in this sense, that the proposition, as I understand it, is that because he now stands acquitted, in order for Ms Osland to be considered guilty of murder, it must be that he did the act that led to the death.

MR WEINBERG:   I wonder if I could assist the Court.  I think, with respect, your Honour Justice Callinan, there is a simple explanation for the point that your Honour is raising.

CALLINAN J:   Thank you.

MR WEINBERG:   What she actually adopted was not the first interview or the second interview but the third interview.  If we go to appeal book page 960, the questions that are being directed to her and the answers that she has given relate to a different interview and she adopted that one.  She did not adopt interviews one and two, so it is not actually ‑ ‑ ‑

CALLINAN J:   I see.  Did she reject them?  Did she say they were ‑ ‑ ‑

MR WEINBERG:   I do not think she was asked, your Honour.  I think she was only asked whether she adopted the third interview as true and she accepted in cross‑examination that the third interview was adopted as true.  I do not think there was any evidence that she adopted the first or second interviews as true.

CALLINAN J:   I am indebted to you for that but also, I take it - and I would like to know about this.  Do not answer it now, but I would like to know whether there is any rejection, either in evidence in‑chief or cross‑examination, of the interview to which I referred.

MR WEINBERG:   I am confident that there was not and that the matter was simply left on that basis.

CALLINAN J:   All right, thank you.

GAUDRON J:   But was it consistent with the third interview?

MR WEINBERG:   Your Honour, the trial was always conducted on the basis - although it was not known at the outset that this would necessarily be so but it emerged very early on and it was conducted on the basis that it was accepted that David Albion had struck the fatal blows and it was never put to the jury that by these answers she was acknowledging that she may have struck the fatal blows herself.

CALLINAN J:   Can you tell me then where I find the interview to which she is referring at page 960?

MR WEINBERG:   Yes, your Honour, what we have called in our written submissions the videotaped interview.  There were three interviews, one of which is not videotaped - I will give your Honour the exact references in a

moment - then there is a videotaped interview at the scene of the burial and then there is a third interview on the same evening of 12 January.  The first interview appears in appeal book 1783.  It commences at 5.14 pm.  It is not videotaped and it is not adopted.  The second interview appears at appeal book 1797 and that is at the dirt track at Durston’s Road where the grave is.  There is a videotape of that and that was played to the jury.  The third interview commenced at 8.27 pm.  That is at page 1817 of the appeal book.  There is a videotape of that - it was played to the jury - and that was adopted by her as being true.

CALLINAN J:   All right.  Where is the passage to which reference is being made at the top of page 960?

MR WEINBERG:   It is in the third interview, your Honour, and I will your Honour ‑ ‑ ‑

CALLINAN J:   I do not want to interrupt Dr Scutt.  It is quite helpful to me to get this information.

MS SCUTT:   Yes, and I am indebted to my learned friend.  It must be made absolutely clear to this Court that there was never any proposition in the trial that anybody other than David Albion had struck the fatal blow or blows.  Never ever was that proposition put or was it ever within the contemplation of the way that the case was run, and it is not in accord with the facts as they were presented to the court in all of the evidence.

If we could move on to the question of whether or not David Albion could be an innocent agent, we say that for a number of reasons this proposition simply cannot stand:  first, because the Crown cannot go behind his acquittal; second, because it did not ‑ ‑ ‑

GAUDRON J:   Well, it does not involve going behind the acquittal if he is an innocent agent.  The real question surely is, was that case left to the jury?

MS SCUTT:   No, no, absolutely not.  I mean, it is King v The Queen all over again in that it is too bad, to put it colloquially, if the prosecution proceeded in one way, and then it comes about that now, at this very late stage, they want to so somehow change their mind and say it was put in a different way.  It was never ever put on the basis that David Albion was Heather Osland’s innocent agent, and therefore that argument is not open to the respondent now.  We say also that if one can look at the acquittal, the only basis on which she was acquitted was self-defence.  That precludes a finding of innocent agency, and there is no evidence of David Albion having a diminished capacity, for example. 

There, we are actually alluding to Matusevich v The Queen.  As I have said - I mean, Matusevich has some interesting elements to it and, in my respectful submission, it is actually used as leading authority by some in terms of innocent agency, when in fact that, in our submission, is not what it stands for at all.  Those who use it in that way ought to read it more carefully, because the Court was very circumspect in the way that they dealt with the problem there, and one ought to look at the facts of that case too.  I mean, I may come to that shortly just to make clear what I am meaning.

In this case, how the Crown proceeded was on the basis that there was a plan to murder this man, that the two of them embarked on this plan jointly, that the plan commenced at least from the time that they were out in the wilderness behind a person called Aaron Ott’s house and that they then dug a hole and that they talked about what they were doing, and that is when the plan commenced, at least, and that when the killing was done, it was done in pursuit of that plan and it was done in concert.  Then, also what happened then was that these two engaged in a cover-up of the murder, in accordance with their pre-conceived plan, by taking the body out into the bush and burying it and then abandoning Mr Osland’s car at a truck stop, and by them both actually engaging in a cover-up of the fact that this, as the Crown put it, murder occurred. 

We say that you cannot have a case, (a) where this innocent agency has never been put and now it is tempted to be erected, but (b) where the innocent agent is somebody who has been acquitted by reason of self‑defence, because if one thinks about it, what innocent agency means, in our proposition, is that - there is typical cited in all the textbooks - which is where somebody says to another, “Put this in so-and-so’s coffee,” and they will drink it and either they will go to sleep or some other consequence will occur, but certainly none of which would be fatal.  What in fact has happened is that the person A is handed poison, puts it in C’s coffee, C dies and B can then be found guilty of murder on the basis that they used A as an innocent agent. 

In a number of respects, the case of - if, for example, the Court looked at King v The Queen - I am sorry, we will get the reference.  I just simply wanted to explain to the Court that there is a case - I thought it was Hewitt -but where what happened was that there was two fellows engaged in what was alleged to be a planned rape of a young woman.  The young woman was in the back of the car and one of them was in the back of the car and said to her, words to the effect of, “If you simply - it’d be better for you if you simply lay there while the other fellow did the act of sexual intercourse.” 

So that it is A that is saying, “It’s better if you lie there and do nothing,” it is B who is the girl, and C who is the man who does the actual act of intercourse and, in that case, it was held that the man who did the actual act of intercourse, C, could be held not guilty of rape, whilst the other man, A, could be held guilty of that crime on the basis that he used C as his innocent agent because A talked the young woman into simply lying there passive, and C thought, he said, that she was consenting.  A jury could logically find that he honestly believed she was consenting and, therefore, he would not be guilty of rape, but A would be guilty of the rape because it was he that used C as an innocent agent in order to effect that crime.  He created the totality of the conditions that could lead to that young woman having sexual intercourse imposed on her without her consent, albeit the man who did the act thought that she was consenting.  It is the Hewitt Case (1997) 1 VR, your Honours.

In this case, there is no way that one can say that David Albion acted as an innocent agent, because he acted as a person with a will.  There is absolutely no doubt that he had a clear will, he knew what he was doing, he knew that he was killing Frank Osland, he had no doubt in his mind of what he was doing, and we say that that is clear on the evidence in both the trials; in the trial of him, together with Heather Osland, and in the trial that he had alone.  He cannot, therefore, be an innocent agent because, as I say, he is acting as a fully aware, fully involved principal and, according to the jury when they acquitted him, he did so by reason of self‑defence, which meant that he was not acting as an innocent agent for another party to kill this person; he was acting on his own behalf in order to save his own life and perhaps that of his mother.  It was a justifiable killing, and also the other aspect of that is that there is no murder for which Ms Osland can be found guilty as the person who inveigles David Albion into doing the act.

MS SCUTT:   Now, one could argue that she set up the circumstances so that he believed that he was going to be killed and therefore that he had to act in self-defence because of Frank Osland’s acts towards them but, on the facts of this case, one says that there was no evidence whatsoever before the jury upon which they could come to a conclusion that she used him as her innocent agent, that is, that she persuaded him that he had to act in a particular way to defend himself in order to save his own and/or his mother’s life.  Even if one looks at the provocation, the fact is that in provocation it is not open to say that she provoked him into doing the killing, for example, and therefore in some way he was her innocent agent for the purpose of the provocation, because in order to kill under provocation, the provocation has to come from the person who is killed to the person who does the killing.  It cannot actually come from a third party as would have to be suggested if it were being suggested here that he was operating as an innocent agent for the person of Heather Osland’s purported desires.

Now, if we can move on to the question of inconsistent - and we would simply refer the Court to our written outline where we have gone thoroughly into all of the issues relating to innocent agency but, again, we repeat that this was not a case that was put, therefore it cannot be the basis on which Heather Osland’s conviction can be upheld, and nor could it be a basis for a retrial by reason of King v The Queen.

If we look at the third way in which this matter can be put, the first way is principal and accessory which, we say, is the correct way for it to be put.  Innocent agency, which, we say, it cannot be put and then inconsistent verdicts, no division between participants.  That is, the issue of whether or not there is a material distinction in the evidence between them.  Now, if we look to what the evidence was in this case, we say, first, one has to take as a crucial element of the evidence between them that he struck the blow and that has to be the number one difference between these two people - he struck the blow.  Number two, if we look at the evidence in terms of David Albion and Heather Osland, supporting self-defence and/or supporting provocation, we say that the overwhelming strength of the evidence is in favour of Heather Osland, rather than in favour of David Albion. 

In our written submission, we have set out on page 9 through to page 10 the evidence as it comes out of the trial in terms of the violence that was complained about by both David Albion and Heather Osland in their defence, that lead to this killing and by reason of which they wished to claim that the act was done, or they did claim the act was done in self-defence or, secondarily, by reason of provocation.

When we look at what evidence there was of violence, as I have said, it is overwhelming that the evidence of violence is in Heather Osland’s favour, if I can use those words, for being in a situation where more, rather than less, violence is being inflicted.  What happened in this case was that Ms Osland had been in a relationship with Frank Osland for some 13 years and throughout the course of that relationship, violence was inflicted on her by Frank Osland.  He also - this is the evidence - engaged in acts of violence against the son, David, and against the other children.  There were three other children, Sharon Jeanes, Erica Albion and Paul Albion, and each of them gave evidence and each of them spoke of the violence to which they had been subjected by Mr Osland.

Some of them were more forthcoming than others - Sharon Jeanes, in particular, was able to remember a great deal.  But, what one can say is that there was substantial evidence of violence against Heather Osland, and there was substantial evidence of violence against David Albion, and as a support effectively to that, the violence against the children as well, and of Heather Osland intervening on some occasions, where children were being abused or set upon by Mr Osland. 

In terms of David Albion’s evidence of the violence against him, that evidence came almost wholly from him.  Where it was evidence about children collectively, some of the violence was against him.  For example, there was violence in relation to the children’s pets and there was some substantial violence about Frank Osland engaging in brutal acts of violence against dogs, that were pets of the family, and against birds, for example, the birds were left in a cage and the children and Ms Osland could not get to feed these birds because it was locked up and the birds were left there to starve to death.  So that there was this cruelty and violence against the pets in the family as well as the other members of the family, and it was substantial.

This evidence in relation to Ms Osland, however, came not only from Ms Osland.  It came from a string of other witnesses.  It came from her children and if one is not satisfied that the children can be classified as independent witnesses, although that is how we would classify them, it came from entirely independent witnesses in terms of neighbours, in terms of fellow workers of Heather Osland, in terms of a minister from whom she had sought help and assistance when they were living in Karratha.

If one runs through a chronology, and we do have a chronology and will prepare it for the Court perhaps over the luncheon adjournment, Heather Osland met Frank Osland in 1970.  She was at that time married to another person, Alan Albion.  She and Frank Osland formed a relationship and went to Karratha to live in 1977.  Karratha is what we used to know of in a sense as Dampier.  Dampier is actually the seaport and Karratha is the company town that now seems to supersede Dampier on the map.  Anyway, it is in that location in Western Australia.

They stayed in Karratha until 1980.  Now, it was in that period that the minister, for example, gave evidence in relation to the violence against Heather Osland and we have this all written out in a way that I will hand up to the Court shortly but I would like to go through it in this way because one of the arguments of the Crown was that if this violence was not made up and simply a figment of the imagination or an exaggeration, then it had all happened long before the killing of Frank Osland and that in the last years leading up to - three, I think is the magic figure, in the last three years leading up to his death there was no violence by Frank Osland against Heather Osland.

In 1979 she made her first attempt to leave Frank Osland.  She packed things into a carrier.  On the second attempt she made to leave with assistance from the minister.  This was an instance where a gun was held to her head - a loaded gun.  She got away from the household with the assistance of the minister and went to live, as I understand it, in his household and then found living space in a commission house in Karratha in Withnell Way.

What happened then was that the police were called and they did arrest Frank Osland in relation to an offence of having an unlicensed firearm and in relation to a matter of theft from his employer.  They did not arrest him in relation to any of the violence that Heather Osland says was inflicted upon her and, as I say, the minister in this case gave evidence to the court and, when we do our chronology, and when I had up the material to the Court, these instances will be outlined and the persons named.

In September 1980, she moved to Bendigo.  They both moved to Bendigo.  Heather Osland and Frank Osland arrived in Bendigo, and Frank Osland simply, to put it bluntly and in contemporary terms, dumped Heather Osland outside her mother’s home and went off to live at a house in Thompson Street, Heather’s grandmother’s house.  Green Street was the house that Heather Osland stayed in, and she stayed there until March 1981.

In March 1981, Heather Osland and Frank Osland were, one might say, reconciled.  I mean they went back together again.  They moved to Moran Street in Bendigo.  Heather Osland was there for seven months and then she went back to Green Street for a period of about six weeks, as a consequence of violence.  1981 Christmas, she returned to the Moran Street address, together with Frank Osland, until 1982 Christmas.  At the end of 1982, the children went to stay with Alan Albion - David and Paul, the boys.  Heather Osland went back to her mother’s for several months and in early 1983 she purchased a house in Reception Avenue, Bendigo. 

From March 1983 to June 1985 she lived at Reception Avenue and from April 1985 she moved back to Moran Street - we will get it all typed up so that the Court has it.  When I have outlined these movings backwards and forwards - I am sorry, in 1988 she moved to Rowan Street, and then eventually she went back to Moran Street, and I will have the date on the list to hand up to the Court - this moving about was, as was clear from the evidence, associated to a very large degree with the violence that was being inflicted by Frank Osland.  When I say violence, there were threats of killing, of chopping up the children and sending them back to her in parcels or garbage bags, there were beatings - this was evidenced by bruising that other people saw and gave evidence of - and there were also complaints by Heather Osland of having been anally raped by Frank Osland on a continuing basis, and there was evidence in that regard from her doctor, Dr Peterson, whom she recommenced seeing when they moved back to Bendigo, in 1981, and throughout the period up to the time when Frank Osland died, that is July 1991, she was visiting that doctor for a variety of complaints to do with pain during intercourse, to do with cystitis, pelvic inflammatory disease and so forth, which the doctor did say could be associated with anal intercourse and Heather Osland had said it was forced anal intercourse.

If we go through, in brief terms, the violence of which David Albion complained in relation to the period immediately before the killing, what we see is, there was an attack and threat by Frank Osland to kill him if he did not move out of the house.  There was also violence that he observed by Frank Osland against his mother, that is, the appellant, and he stopped by intervening and pulling Frank Osland from his mother - I must apologise to the Court here and I am indebted to my learned friend for pointing out that, in that instance, he did not say that Frank Osland had his hands around her throat, he was simply grabbing her.  I had made that error myself because there were earlier instances where he did have his hands around her throat, but what he was doing in that episode where David Albion intervened and pulled Frank Osland from his mother, he had grabbed - I think the expression used was that he had grabbed Heather Osland.

That episode caused David Albion, on his evidence, to remain in the house to protect his mother, thus exposing himself to further threats and violence.  There was also the violence and threats of Frank Osland in the days leading up to the evening of the killing including observation of the physical violence and implicit threat of Frank Osland the evening before, in throwing his dinner plate and meal - I have said up against the wall in the submission - it was actually at Heather Osland.  This story is told in a number of different ways in the police interview and in the evidence in the trial.

When I say a number of different ways, I do not mean that it is different ways that in any way imply that there was an untruth about it.  It was simply, it was one time spoken of, the dinner plate, another time the dinner, another time it was a hot pie, all of which effectively mean the same thing and it was thrown at Heather Osland.  Verbal violence of Frank Osland, with respect to Frank Osland’s demand that Heather Osland obtain for him some bed knuckles.  What happened over this period leading up to the killing, on the evidence before the court, was that Frank Osland had demanded that Heather Osland fetch for him, or buy for him, or obtain for him in any way, some bed knuckles.  Now, I am sure that everybody in this Court will recall that beds, once upon a time, were made with a joint where one part of the head of the bed fitted into the base of the bed, the wire mattress of the bed, and it is the knuckles, that my understanding is, the name that is given to the metal joints for a bed.

He had been asked to obtain these.  She had not been able to obtain them.  And on the day of the killing, she and David went out to Aaron Ott’s house in order to see if they could find these bed knuckles.  And, so there was verbal violence that was inflicted against Heather Osland by Frank Osland over this need to obtain the bed knuckles.  David Albion was also in a position to observe this violence, or hear it.  There were also violence and threats of violence by Frank Osland against David Albion if he did not move out of the house.

This violence, we say, is necessarily to be seen against the background of violence that David Albion had experienced from Frank Osland during childhood and adolescence, including sexual abuse and, as I have said, the cruelty to David Albion and his sibling’s pets and, also, some of them were Frank Osland’s own dogs, and then the background of the violence he observed over the years by Frank Osland against his siblings and his mother.  Now, I briefly describe to the Court the sexual violence that Heather Albion stated she suffered from.  David Albion gave three episodes of sexual violence against him by Mr Osland; two of them involved the touching, or a suggestive touching, and one involved an anal rape, which was carried out in the back shed.

Also, this contemporary violence - when I say “contemporary” I mean around the time of the killing - has to be seen against the backdrops of David Albion’s observations of the inability and/or the failure of the police to protect Heather Osland and her children from Frank Osland’s violence, although the police were called and attended at least three or four times.

GAUDRON J:   That was not in the recent time.  Was that in the - - -

MS SCUTT:   Yes.

GAUDRON J:   Was it?  Yes, could you tell me when those occasions were?

MS SCUTT:   Yes.  May I simply say this as a lead‑in to this, that when the trial was run, as the Court is aware, Mr Osland’s body had been buried and was not discovered.  It was buried on 30 or 31 July 1991.  My understanding is it was 31 July 1991.  These people did not go on trial until 1996.  During the trial there was constant allusion, as I said, to this notion that there was no violence in the three years before the killing.  Yet, when one - this was primarily based upon - I have to say it was solely based upon, actually, the intercepts of telephone conversations between Heather Osland and various others and a television interview that she did with a journalist from the local television station, who, when there were rumours surging about Bendigo that Frank Osland had been killed and that the police were searching for his body, a woman from the television station interviewed Heather Albion and she denied that there had been any contemporary violence, that is any violence in the period leading up to Frank Osland’s death. 

That is actually the sole source of this notion that there was no violence in that three years leading up to his death because, when one goes to the trial and all the evidence that was there, it is patently obvious that there was violence in the three years leading up to the death.  The other aspect that I want ‑ ‑ ‑

GAUDRON J:   Including these police visits.

MS SCUTT:   There were police visits in the years leading up.  If I could just go back to one other point, sorry, that I wanted to make.  It was this, that the trial was conducted a number of years after the death.  Therefore, in our view, what happened was that because episodes, say, of extreme violence were being raised that it happened in say 1985, 1986, 1987 and so on, it was ten years before the trial occurred but it certainly was not ten years before the death occurred.

In terms of the dates, in fact, one of the witnesses, Connelly, his evidence shows clearly that there had been a police call to the house in what has to be described as recent and I will draw the Court’s attention to - it is not an interchange, it is simply a statement by the judge in the course of his charge.  When he goes to Connelly’s evidence he says that this episode of the police visit to the Osland household was in relatively recent times and then he said, “Unfortunately, we do not know the precise time that it happened” because he says words to the effect of - I interrupted Mr Connelly and so the date did not ever come out, the date was never clarified, the precise time when it occurred.

KIRBY J:   I thought I saw somewhere a suggestion of the Crown that your client was trying, at some stage, to manipulate the evidence, as it were, to fit herself into the so-called “battered woman syndrome”, and that, therefore, a jury might think much more relevant than her as it were self-serving assertions, that it was more pertinent to have regard to what she said when she was speaking to somebody in an intercept which would be more honest or more likely to be honest because, not being, as it were, prepared for trial purposes.

MS SCUTT:   Yes, there are a number of points that your Honour has raised there, and I would like to deal with each of them.

GAUDRON J:   Would it be convenient to deal with them at a quarter past two?

MS SCUTT:   Before the Court rises may we hand up the material where we have set out the violence so that the Court can deal with it over lunch?

GAUDRON J:   That can be handed to the clerk.

McHUGH J:   For my part, I would be much assisted if I could have that detailed chronology of which I spoke.

MS SCUTT:   Yes, your Honour, we appreciate that.  We will hand the material up ‑ ‑ ‑

McHUGH J:   The sort of materials, the matters you have just been speaking about, the sort of matters I had in mind, the transcript references, so it is easy to go to look at the evidence and follow it all through.

MS SCUTT:   Yes, we have all that to hand to the Court, thank you.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GAUDRON J:   Yes, thank you, Dr Scutt.

MS SCUTT:   Thank you.  If the Court pleases, we are in the midst of organising to have a chronology printed out and we are hoping to have that in the course of the afternoon.

My learned friend has asked how it is that we put to the Court these issues about the directions in relation to self-defence and provocation in the material that we handed up to the Court before lunch, and we simply draw to the Court’s attention that we do this in the context of both ground 8, relating to self-defence in Zecevic, in relation to ground 6, which is on provocation in which we specifically talk about the provocation directions, and in relation to ground 1A and 1, where we say that, in the context particularly of ground 1 and the inconsistent verdicts, one cannot consider the question of inconsistent verdicts in the terms of the Darby inconsistent verdict principle, that is, the difference in the evidence, unless one looks at the way that the court dealt with self-defence and provocation in the context of, what has been called, the “battered woman syndrome”, but we hasten to tell the Court that we do not consider that the expression “battered woman syndrome” assists the Court or assists persons who are accused; rather, we would prefer to adopt the expression “battered woman reality”, if there has to be a short-hand expression of that nature.

The other way, of course, to give it a long-hand term is that the sorts of evidence that comes in under this popularly known expression “battered woman syndrome” is evidence that goes directly to the question of self‑defence and provocation and, in our view, the use of this expression, “battered woman syndrome”, in this trial is substantially responsible, in our submission, for the fact that inconsistent verdicts eventuated.  But having said that by way of a preliminary, may I come back to the matters that we were looking at prior to the luncheon adjournment, to the question of the significant degree of difference between the position of David Albion and the position of Heather Osland with regard to the violence evidence.

We handed to the Court, prior to the luncheon adjournment - and I must say, also, that we handed it to my learned friend prior to the luncheon adjournment, too - the whole package of material was completed only by such time that we could do that, and we appreciate that it would have been better if it had been available earlier.  But in this volume that we have put to the Court there is material that goes to violence against the accused, that is, both Heather Osland and David Albion, in that trial of the two, and that is under evidence of violence against her, evidence of violence against David Albion, and evidence in relation to violence against the children and family generally, then the violence against the pets, then the evidence on the “battered woman syndrome”, or, as we prefer, “battered woman reality”, then the medical evidence, which includes the material relating to anal rape and so on, and the evidence in relation to police involvement.

KIRBY J:   Was there any expert evidence, any psychological evidence, in relation to the so-called battered women syndrome, or reality, given before the jury, or not?

MS SCUTT:   Yes, there was, your Honour.  Dr Kenneth Byrne gave that evidence.  My understanding is he was a clinical psychologist and he did give that evidence.

KIRBY J:   There was no objection to that evidence?

MS SCUTT:   No, there was not, but in that regard our point goes to the fact that there is little point in putting expert evidence on matters of this nature, or any nature for that matter, to a jury if one does not give a summing up that clearly indicates to the jury how they may use that evidence in accordance with the law of, in this case, self-defence and provocation, because those were the matters that were being put to the jury by the defence.  What went wrong in this trial, in our submission, is that the judge, with the greatest of respect, did not explain to the jury in a way that was readily intelligible to them, or that could have been readily intelligible to them, how that evidence fitted into the legal principles of self‑defence and provocation. 

What we have endeavoured to do in the material we handed up to the Court previously about directions in this matter is to look at where it went wrong and to - there was actually a submission that went with that background material, which I will take Court to shortly, but to show how it went wrong, how the evidence was not used in a way that could have assisted the jury and how it was not linked in to the actual legal matters that were being put to the jury.  It is not there so that the jury could determine whether Heather Osland fitted into the battered women syndrome or was a battered woman.  That is actually irrelevant for the purpose of a judicial inquiry, the inquiry of the jury.

They have to ask was Heather Osland involved in the killing of Frank Osland by reason of - was she justified in her involvement in that killing on the grounds of self-defence, or was that killing provoked, and to look at the material for violence, and so forth, to inform them as to whether they could draw the conclusion, or the conclusion that the Crown had not properly acquitted itself, on those two issues as to there being a reasonable doubt that that was the way that she approached the matter.  As I have said, we say that the material before the Court showed, and we say without any doubt, that the violence against Heather Osland was more sustained, it was over a longer period, the sexual abuse was more recent and, what is more, there was corroboration as to the sexual abuse.

When we say “corroboration”, we know that the doctor did not say, “The material on my record shows that Heather Osland had been a victim and survivor of forced sexual intercourse or anal rape”.  He did not say that.  What he said, however, was that there was clinical evidence available from the first visit in 1981 to him, up until July 1991, of symptoms that possibly could go to showing that her evidence, at minimum, about the anal intercourse was true.  There was nothing like that for David Albion.  The evidence from David Albion as to sexual aggression and imposition came from himself alone.

KIRBY J:   It related to an event when he was 14, I think.

MS SCUTT:   It was, your Honour, that is correct.

KIRBY J:   He was 29 or so at the time.

MS SCUTT:   No, he was younger, your Honour.  He was, I think, 24.  He is 29 now, yes, that is one of the problems with this happening as long ago as it did.  I have already emphasised the issue about his wielding the pipe.

Now, before the luncheon adjournment I also said - we have also some other material to hand up to the Court too, some textbooks which go to this issue of the violence against the woman, particularly in the home.  We will hand them to the associates or tipstaves at the end of today’s hearing.  I just wanted to go to the other matters that the respondent would say that there is a difference in the evidence between these two persons and therefore our submission that there are inconsistent verdicts that cannot stand is misplaced.

The Crown asserts this in relation to a number of matters and perhaps we ought to deal with the question of the violence and the intercepts where she said in the last three years she had not been subjected to violence.

As I understand the respondent’s position, it is that the episode that David Albion talked about which occurred on that very night of the killing -they say that it was a recent invention and, alternatively, they say that Heather Osland gave no evidence about it at all and it seems that it is on that basis that they say that there is a distinction between the two.  We say that if a jury accepted that David Albion’s evidence as to his, on that night of the killing, coming into the house because he heard his mother screaming and finding Frank Osland grabbing her and intervened and then he was told that he had better leave the house, et cetera, and threatened with being killed, we say that if that episode can stand for David Albion as an episode against which he was entitled to defend himself in accordance with a claim of self‑defence or provocation, we say it must properly stand for Heather Osland too.

KIRBY J:   When was the grave or the hole dug?  Was that before this event, or after?

MS SCUTT:   It was the afternoon.  Yes, it was of that same day.

KIRBY J:   So it was before.

MS SCUTT:   The morning, I am sorry, because she went and had her hair cut.

KIRBY J:   It does not sound as though the sequence is one of provocation or self-defence.  I mean, the fact that the hole was dug before rather suggests that this was preordained.

MS SCUTT:   Your Honour, if we may address that ‑ ‑ ‑

KIRBY J:   Do it in the sequence of your submissions, but that is the obvious concern that springs to mind.

MS SCUTT:   Perhaps I could answer it briefly here, your Honour, that even if the hole were dug for the purpose of murder ‑ ‑ ‑

KIRBY J:   Well, it was not dug to plant a tree.

MS SCUTT:   Well, no, but, if it were dug for that purpose specifically and explicitly, no question at all.  The fact is that an episode of violence intervened and that episode of violence that intervened can properly, we say, be accepted as one against which it was reasonable for the killing to take place.  If he honestly believed that he had to do the killing in order to save his own life and/or that of his mother as a consequence of that attack, then that intervened.  So that if there were a plan, the plan had been interrupted by an intervention from Frank Osland that led to Frank Osland’s death and may have ‑ ‑ ‑

KIRBY J:   That sort of submission could be made but one could understand why a jury might reject it and say that if you dig a hole ready for a person’s body, that that rather suggests that you had something very serious in mind.

MS SCUTT:   Yes.  Well, perhaps if I take your Honour’s approach and deal with it in sequence, then.  I was simply seeking to focus here on the fact that if that evidence of David Albion as to that attack is accepted for David Albion, it must be accepted for her, too.  Now, granted, there was no evidence that Mr Osland said, in that episode, “I will kill you.  Get out of the house.” to Heather Osland.  However, threats need not be oral in order to be real, and if one is being grabbed and thrust up against the wall, attacked in some way, that means that there is a physical assault and, indeed, a battery, and that can carry with it, quite readily, an implicit threat that goes with the assault and battery itself, but an implicit threat of something more than simply assault and battery to something more serious; that is, to the person who is being assault in that way believing that she, or he - that the life of him or her is at risk.

In fact, I refer here to the judgment in Zecevic, where both Justice Deane and Justice Gaudron pointed out that self‑defence can be appropriately used in circumstances where a person believes that their life is at risk and/or where they believe that their bodily integrity will be impugned in another way, namely, by rape, for example.  If one thinks of the typical scenarios that one sees before the courts in terms of rape, for example, one hardly comes up against cases where the person who intends to do the rape announces it orally before he proceeds to do the act, and yet, if a person killed in circumstances where she or he was being attacked in a way that was - that indicated that they were to be raped, then the courts would hardly say, “He did not threaten you with rape orally and, therefore, your responding in such a way to kill that person could not be self‑defence.”  I mean, that just is not tenable.

KIRBY J:   Yes, but given that the rape, as it is put, of David occurred when he was 14, some 10 or so years earlier, it is hardly - and there was one incident told in evidence - it is hardly as if that is something which is immediately imminent in his case.

MS SCUTT:   Well, that is correct.  I mean there are different ways that one can argue that, but what we would say here, because the accounts of Heather Osland is this, that we draw it to the Court’s attention simply to say that it is wrong of the respondent, with respect, to say that the evidence for David Albion and Heather Osland is different in that it is more compelling for David Albion than for Heather Osland, and that is one point where it is far more compelling for her, because up to the time of his death, on her evidence, she was suffering from this form of attack from him and also I draw the Court’s attention to page 1438 of the appeal book where David said:

he’s threatened to kill me and that night he did threaten to kill Mum too.

So his evidence was that there was a direct threat to kill her, however, I do want to make the submission to this Court that an oral statement, “I will kill you”, that not being made, does not mean that the person has not been threatened with a mortal attack against their life nor that they believe honestly that they have been attacked in that way nor that their response is reasonable if they act so to save their own life by killing the other person. 

In fact on that point, we would refer the Court to the case of R v R (1981) 28 SASR 321, and that is, of course, the case on provocation and the argument operates there too. In that case the woman had had disclosed to her, in the night that led up to the killing, the fact that her daughters had been sexually abused, and indeed raped, by their father, her husband, on a continuing basis. On the night of the killing this was “had out”, as it were, with this man, and the point was made there that his words and actions to her or in her presence on the fatal night might have appeared innocuous enough on the face of them - that is page 326. What he actually did was pattered her arm and said, “Everything will be all right”, words to this effect - I am paraphrasing now - “We will go back to England and there will not be any more problems, we will be a happy family again.”

What the court held there was that the quality of those words, out of the context of what that family circumstance had been and what had been revealed to her, meant something significant in terms of the issue of provocation, whereas if those words were uttered in a totally different context, then they would not be provocation.  And what they said was:

A jury might find -

this is on page 326 -

to adopt the words of Justice Dixon in Parker v The Queen, “all the elements of suddenness in the unalleviated pressure and the breaking down of control” as the night’s events reached their climax in the bed.

This was said to her when he was in bed, and that also goes to the point about the interval between the actual provocative words or acts and the killing itself.  They refer to the fact that in the circumstances the words could take upon themselves a particular quality, because they raised in the person who heard them a particular passion, and so on.  But anyway, just to get back to this point I was making about the difference in the quality of the material.

Also, I raised before lunch the issue about the knocking of Paul.  What was said by Paul Albion, at page 469 of the transcript, relates to a meeting that was held.  After Paul Albion had been told by David Albion that Frank Osland was dead and the circumstances of that killing, Ms Osland called a family meeting at which she and David Albion and the other family members were present, the children, and, as I recall, Kim Church, the de facto of Paul Albion, and there was a discussion about what Paul was saying, namely, that Frank Osland had been killed was correct or not.  Paul Albion was told that what he was saying was not true; it was lies.  David Albion left the meeting and sat outside, and at page 469 of the transcript Paul gave evidence:

As you were leaving, did you see your brother David?---Yes, he was out at the backyard.

Yes, did he say anything to you?---Yes, that’s what you get for lying to me and if I go down, you’re going down.

On any other occasion had David ever said anything to you about the car, Frank Osland’s car?---Yes, how it was lucky the tail shaft didn’t fall out as they were taking it down to Melbourne.

And so forth.  Then on the transcripts of the tapes which are before the Court ‑ ‑ ‑

GAUDRON J:   What is this evidence going to, Dr Scutt?

McHUGH J:   Yes.  You see, you have got us all confused here.

MS SCUTT:   I am sorry.  I am going through - I beg your pardon - I am going through what we were dealing with before lunch, was the question of, “Are there inconsistent verdicts in accordance with the evidence before the Court?”, and what I have been going through is the fact that if there is any difference in the evidence before the Court, the difference is pro-Heather Osland, not pro-David Albion.  So that, in accordance with the principle in Darby’s Case, for example, the verdict is inconsistent because the evidence favours her.

McHUGH J:   No, but what you have to concentrate on for that purpose is the evidence most favourable to the Crown, and what evidence the jury could have accepted which would explain the verdict for a conviction of murder, on the one hand, and some explanation as to why the jury were unable to agree.  We are not assisted in determining that issue by going to what evidence the accused gave or which was led on behalf of the accused - the jury may have rejected all that evidence.  In fact, the theory of the Crown case was that a lot of the evidence, if not most of the evidence of the accused in the witness box, was lies.  The trial judge put that to the jury.  The Crown said that the true evidence was what they were to look at, not the lies and fictions tried on you from the witness box.  Now, that was the direction.

MS SCUTT:   Well, look, if I may deal with it quickly like this - I was, in fact, going through what the respondent had said the differences were, and that we were simply countering that because we thought that that was our task to do.  But may I put it like this, we say that the differences that the respondent say exist in the evidence between these two people is not the difference that they contend for.  We say the difference is the opposite.  And your Honour raises the question of her evidence in the witness box.  If we disregard all Ms Osland’s evidence about the violence about her, and we take all that out of the transcript, we are left with violence against Ms Osland on a continuing basis for a long time.  That evidence comes from neighbours, as I have said before, it comes from own family members if one wants to look at that, and we have actually handed to the Court material that indicates that that is so, and it is not her evidence alone.  As I say if we want to disregard everything she said ‑ ‑ ‑

McHUGH J:   What do you say about the direction of the trial judge at page 2061, I think it is, where at the foot of the page the trial judge told the jury that the Crown claim was that all her best friends make it clear that there was no prevailing violence.  Now, is that a misdirection, or not?

MS SCUTT:   I am sorry, which page, your Honour?

McHUGH J:   2061.

MS SCUTT:   Where is your Honour?

McHUGH J:   Down at the bottom of the page.  Line 28:

All her best friends, says the Crown, and makes it clear there was no prevailing violence.

Now, is that a misdirection on the facts?

MS SCUTT:   Quite frankly, your Honour, I do not know what the judge is saying there.

McHUGH J:   Well, you had better try and think about it then because he seems to be instructing the jury that the evidence of her best friends, according to the Crown, says that there was no violence prevailing at the time and earlier, on the top of that page, the judge had said that the Crown said that:

the true evidence is what you look at, not the lies and fictions tried on you from the witness box by the accused, and they say the true evidence really is unanswerable.  This was not a hot‑blooded killing in self‑defence by persons under threat -

et cetera.

It is the opposite.....Planned for up to a week on one view, based upon a statement made in an intercept, or at least possibly two days or at least the whole of one day, for reasons of hatred, revenge, the desire to get him out of their life, or possibly money.

That was what was put to the jury.  Now if the evidence did not support those directions then there would be a misdirection and the question would then arise as to whether or not that constituted a miscarriage of justice.  If the evidence does support those sorts of directions then it creates problems with you which you have to deal with but you have conducted this case without really taking us to the passages in the summing up which you say are a misdirection or which are not an adequate direction and, for the most part, you have not gone on to tell us in the latter case what the judge should have said, what the precise direction was.  It was not done at the trial but as you pointed out this morning that does not mean that this Court could not set aside the conviction even though the point was not taken but we need your assistance on these matters.

The alternative is that at the end of the day we have to just go through all this material ourselves and get what assistance we can from your submissions, and work out the case for ourselves.  But without in any way being critical of obviously the great amount of time and energy you have spent on this, you have to present a clear theory of the case that we can come to grips with.

MS SCUTT:   Right.  Well, let me put it this way.  Our clear theory of the case is this, this case went wrong because everybody began at the point when the so-called grave was dug.  Nobody began at the point where this man’s life was ended.  This man’s life was ended when David Albion hit him with a pipe, and that is where this case should have started, and it went adrift for two reasons.  One, for the mesmerisation, everybody was mesmerised by what they want to call “the grave”, number one;  and number two, there was an inordinate concentration on this notion of battered woman syndrome and we say to this Court that it is incumbent on this Court to give clear direction to courts in the future as to the way in which evidence of a long history of violence against a particular individual - and in most cases it is women, as we know, and that is where all the research has been done - it is incumbent on this Court to inform trial judges and appellate judges as to how directions ought properly be given to a jury so that they can come to grips with the evidence and make proper use of it.  And when your Honour says let us point to an item in the judge’s charge where we say he was wrong, all that we can say is that, in its totality, the charge of this trial judge to that jury was inadequate and, with the greatest respect to him, wrong, and the reason is - - -

McHUGH J:   Well, could I just interrupt you to say that is a large submission to make, but to make it good you have to analyse it.

MS SCUTT:   Well, yes.

McHUGH J:   You are speaking in generalities and I understand why you have to do it because you are giving a summary answer.  But, in the end, you have to analyse what the judge said and point out what the weaknesses or errors in his summing up are, and then give us your submission as to what a proper direction would have been.

MS SCUTT:   Yes, we actually handed that up, your Honour, to the Court prior to the luncheon adjournment.

McHUGH J:   Well, if you are talking about 2.7 ‑ ‑ ‑

MS SCUTT:   The separate document that we handed up to the Court that is headed Directions.

McHUGH J:   Yes, 2.4.  Is that what ‑ ‑ ‑

GAUDRON J:   Do you seek any direction beyond that which is implicit in what was said by Chief Justice King in R?

MS SCUTT:   We believe that what happened in R was - that is about provocation first and, secondly, we say ‑ ‑ ‑

GAUDRON J:   Well, it would flow through to both, would it not?

MS SCUTT:   Yes.  We say that there is a need not for this Court just to willy‑nilly adopt what the Chief Justice said in that case, but we do say that that case is one that this Court ought properly ought to have strong regard to, just as we have said that the case of Malott unreported of 12 February 1988, No 25613 of the Supreme Court of Canada, and the case of Lavallee, the Canadian cases, ought to be had strong regard to.

GUMMOW J:   In your primary submissions on page 19 - that is the first set - paragraph 15, there is a quotation set out.  Do you see that?

MS SCUTT:   Yes.

GUMMOW J:   What case is that from?  It does not seem to be from Malott.

MS SCUTT:   Pardon?

GUMMOW J:   I cannot find it in Malott.  There is a passage set out in bold type there, “Once the battered woman syndrome”, et cetera.  The first question is:  is it from Malott?  Secondly, is it a proposition that you wish us to adopt here?

MS SCUTT:   Yes, certainly.

GUMMOW J:   Because we have to know what should be said.

MS SCUTT:   Right, yes, that is what we have been ‑ ‑ ‑

GUMMOW J:   We just will not make it up.  We need assistance and support in relation to what it should be.

MS SCUTT:   We understand that.  That is why we produced this document before the Court, Appellant’s Submissions Re Directions.  What we have done in that is sought to do what I understood Justice McHugh was calling for.  That is to say where it is that we say this trial judge went wrong.

McHUGH J:   Yes, but could I illustrate from your directions document, the one headed Appellant’s Submissions Re Directions, paragraph 4.  You have a number of dot points.  Let us take the last one on page 9:

A jury properly instructed should have been told:.....

that training is recognised as being necessary to enable medical practitioners to treat patients in this category appropriately.

You must be submitting that as a matter of law a judge is obliged to give such a direction.  If that is the case, where does the judge get that from?  Ordinarily one would expect that evidence would be called to that effect in the particular case and the judge would direct the jury in accordance with the evidence, as he did in respect of Dr Byrne’s evidence, but you seem to want to elevate that dot point to some sort of proposition of law that must apply in every case.  If that is so, you have to convince us that as a matter of law such a direction is required.

MS SCUTT:   May I first deal ‑ ‑ ‑

McHUGH J:   What do you base it on?  We can only act on evidence and what we can take judicial notice of.

MS SCUTT:   May I just first, with respect, deal with the issue raised by your Honour Justice Gummow.  In R v Malott, on page 2, page 2 commences with self‑defence where the victim has died, and then it has got “:(1)”.

GUMMOW J:   That is a headnote.  They have very long headnotes in Canada.  I am looking at Mr Justice Major’s judgment and then Madam Justice L’Heureux-Dube’s judgement, and I cannot find it in either.  It may be there.

MS SCUTT:   Well, I am taking it, then, out of the headnote in relation to what - I am sorry, it is because it has been downloaded from the internet and it is difficult to actually understand.  We were finding the precise proposition, but let me say this, that what this paragraph 4 is looking at is how the jury, in this case, was directed on the medical evidence and, in the folder that we have handed up to the Court, under the heading “Medical Evidence”, for example, we have the charge in relation to Dr Peterson’s evidence under that heading.

GAUDRON J:   Now, does this really go to anything more than that a jury, with the ordinary experiences of life, might not understand the pressures that operate in respect of a battered wife and might be inclined, by reason of that, and by reason of, perhaps, stereotypical attitudes, to discount such a person’s evidence?

MS SCUTT:    Yes.

GAUDRON J:   And that the medical evidence is simply there to warn them against treating the evidence by reference to their own experience.

MS SCUTT:   Yes.  The difficulty was that in the charge, for example, on his evidence ‑ ‑ ‑

GAUDRON J:   Is that what the jury should be told, though, so far as concerns the medical evidence?  Should they be told anything else?  I mean, we do have to - I mean, if we come to this part of your case, we are going to have to write something upon which judges will instruct juries throughout the Commonwealth.  If we just concentrate on the medical evidence, should a judge instruct the jury along the lines I have indicated to you?

MS SCUTT:   In our submission, it is necessary for the judge - can I put it this way.  When the judge was going - in this case, when the judge was going through Dr Peterson’s evidence, the judge has to obviously be even‑handed and can say, “This woman never told, in explicit words, Dr Peterson that she was being anally raped by her husband.”  On the other hand, there was evidence that he could go to in what Dr Peterson said that she may well have been informing him that she was suffering violence in the home.  He had in his notes expressions like “marital disharmony” and so on.  And that he ought then to have said that it is known that women do not necessarily ‑ ‑ ‑

GAUDRON J:   No, but is that what the clinical psychologist gave evidence?

MS SCUTT:   Of course, there is the problem in this case, and I expect that we have to say this, that the problem with this case was that evidence could that have been given that would have made it easier for the judge to give a charge that would explain to the jury precisely these sorts of issues, we acknowledge, was not given. 

GAUDRON J:   The judge cannot make it up out of thin air.

McHUGH J:   Exactly, and that is what I have been thinking for some time, that this may well not be the most suitable vehicle for this Court to be examining the whole question of what you call “battered woman’s reality” because of the lack of evidence ‑ ‑ ‑

KIRBY J:   I think you agree with that.  You say that the fact that it went off on that issue was a tangent.

MS SCUTT:   No.  We say the fact that it went off on that issue in the way that it did - and if I may just simply, I do not want to go through it, but the way in which the trial court treated this issue.  You see, what his Honour ‑ ‑ ‑

KIRBY J:   How do you expect the judge to deal with it if you do not call evidence?

MS SCUTT:   Evidence was called.

KIRBY J:   But I mean, I think you concede that the evidence that was necessary to found proper directions to the jury was not called.

MS SCUTT:   What the court said in Malott was that the jury and the judge have to be properly and effectively instructed on this matter.  Now, we would say this, that it would be a very sad thing indeed if this Court did not address this issue in the context of this case and we would not concede that this case is not an appropriate case to deal with this matter because:  (a) the question of battered woman syndrome was raised; (b) there was evidence given to the court about it, (c) in our submission ‑ ‑ ‑

GAUDRON J:   When you come to that, that was the evidence of the clinical psychologist.

MS SCUTT:   Yes.

GAUDRON J:   Now, you are not suggesting surely, are you, that the trial judge could have given directions which went outside what the clinical psychologist said?

MS SCUTT:   In our submission, we say this.  If the trial judge truly did not know anything about battered woman syndrome or battered woman reality, then, in our submission, there has to be some way that that trial judge acquaints himself with the issues.

McHUGH J:   That is the problem.  Under the adversary system of justice, it is up to those representing the accused to call the appropriate evidence, assuming it exists.  There are two ways one can analyse this problem, Ms Scutt.  Either you have to persuade us that without any evidence at all judges should give certain directions as a matter of law as they do in, say, identification evidence cases, or you have to accept that each case depends upon the evidence called in respect of it and the judge is required to give the appropriate directions in accordance with the evidence.  Now, you seem to concede that in this case you cannot rely on the second alternative and that seems to suggest that you have to rely on the first.

MS SCUTT:   We say two things.  First of all, we say that there was evidence there.  It is wrong to say that there was no evidence there.  Evidence was called and there was evidence there.

McHUGH J:   There was evidence - well, I do not know.  Is it an accurate summary or is all the judge said about it at 2050 when he said - talking about what he called “the battered wife or the typical characteristics of the relationship”, he said:

You may also be of the view that many perhaps of the consequences for the woman, described by Dr Byrne, have occurred in this case:  changes in thinking ability, avoidance symptoms, increased alertness or arousal, learned helplessness.  But what you may find more difficult - or, if not more difficult, the critical thing to decideand reach a view about - is to connect those matters to the killing in this case, because of the way in which it occurred -

McHUGH J:   Is anything more said about this issue than what I have just read to you on page 2050?

MS SCUTT:   Well, considerably more, and page number references appear on page 2 of our submission on directions at paragraph 2.4.  If we just go back to that part that your Honour read out, it is no good simply to say that, and say, “Well, it is up to you, members of the jury”.  What the judge is bound to do, we say, is to put the evidence in the context of a statement such as that.  You see, what ‑ ‑ ‑

GAUDRON J:   To what legal issues though, must he address it?

MS SCUTT:   He has to address it to self‑defence and provocation which ‑ ‑ ‑

GAUDRON J:   Does he not first have to address it to the credibility of the people concerned?

MS SCUTT:   Yes, we would accept, yes, that he must look at - he has to deal with evidence in the ordinary way that he deals with any evidence - any judge deals with evidence in a trial.  He has to look at what the evidence was.

GAUDRON J:   You see, for example, to take it at one level, we are now familiar and the courts are now familiar with the notion that victims of child sexual assault may not complain for some long period afterwards.  As a result mainly of legislative changes, there usually is not a direction to say, “Well, you may well think that you should disbelieve this complainant because of the absence of complaint”.  Is there something similar operating in relation to the battered wife syndrome, so that you do not discount the evidence of assault and violence simply because there was not contemporaneous complaint?  Is there something like that operating in this notion?

MS SCUTT:   Yes.

GAUDRON J:   Well, what is it?  I mean, I accept that that is not all that there is, but what is it that is operating there?  Can you articulate that, because if we are to deal with it we must be able to articulate it.

MS SCUTT:   Yes, well I do not want to move out of order, but because it arises here, and I do not want to address it at any length, but this touches on our ground of appeal in relation to hearsay.  You see, if what happens is that the woman does in fact complain to somebody about the violence and then evidence is not allowed to be given of that complaint and of what she said or what her actual complaint was, then that means, because these sorts of acts are carried out generally in private, there is no material on which a judge can sum up to the jury or a jury can make up its mind in relation to her evidence and the testing of the evidence or the possible support of her evidence. 

You see, what happened in this case was that evidence of the deceased’s conduct, going to Heather Osland’s state of mind, was ruled inadmissible by the trial judge on the ground that it was hearsay.  The Crown was then allowed to cross-examine the appellant about her failure to complain of mistreatment by the deceased and we say that the Court of Appeal wrongly upheld the trial judge’s rulings on hearsay.  We say that where self-defence is an issue, evidence may be given, not only of incidents of which the accused had personal knowledge or had been informed, but also evidence of the occurrence of incidents deposed to by third parties, consistent with the evidence given by the accused of her own state of mind and which induced it. 

Now that principle is stated in Reg v Knowles (1984) VR 751 at page 768, and we say that this evidence is particularly relevant where self-defence arises in the context of the battered woman reality. Where is the evidence going to come from in addition to hers that can give the jury some basis on which it might be able to make its decision as to whether she is telling the truth, whether this happened, whether she did believe that she was going to be killed, whether her response to the aggression or whatever, the aggression, the attack, was a reasonable one.

GAUDRON J:   This is, in fact, an argument for the admission of what might be called, evidence of contemporaneous complaint, in such cases.

MS SCUTT:   Yes.

GAUDRON J:   This is an argument for the admissibility of evidence on a somewhat different basis, although it may be justified of course by reference to - - -

MS SCUTT:   Well, I suppose the problem with the complaint in the rape is that it has to be seen as contemporaneous, and the difficulty here is that if you are a woman who is living in a violent relationship, what you are complaining of may have taken place six weeks ago.  It may not have taken place contemporaneously with the - - -

GAUDRON J:   Would not this evidence have been admissible - - -

MS SCUTT:   It should have been.

GAUDRON J:   - - - in any event in answer to the suggestion of recent invention?

MS SCUTT:   Well, yes, but you see - - -

GAUDRON J:   Well, it is only a question - - -

MS SCUTT:   One of the problems in this case was that, quite frankly, the prosecution could not make up its mind.  At one stage, it said it was not raising this as recent invention.  At another stage, it did raise it as recent invention and so the pity of it all was that it was very unclear as to the way in which the prosecution was putting its case.  Therefore, when the counsel for Ms Osland attempted to get evidence in, the response was it was not necessary because the Crown was not going to argue recent invention, and then they did argue recent invention.

That, I would have said, is rather a large problem and that also links into the proposition that is being put that because on the tape she said she had not been harmed for three years by his violence, that he had not been violent in three years, that was left there without evident of her having made complaints, of her having said she was frightened, evidence of her coming to the door, Myrtle Waterson’s door, shaking and shocked and so forth, and what she said.  I mean, some of that evidence was given but not what she said when she came, and that meant that the jury was operating in a vacuum, as it were.  It had her evidence there but not the material that could back up her claims, or that the jury could consider to see whether they did think that that gave a balance or a basis to her claims.

GAUDRON J:   I am still, I regret to say, unable to follow precisely what it is that you say a trial judge should do with respect to, first of all, the evidence such as that given by a clinical psychologist in this case; and secondly, what direction other than of the kind contemplated by Chief Justice King in R should be given with respect to provocation and self-defence, by reference to the history of abuse.

MS SCUTT:   Well, we have set out, at page 9, at paragraph 4, a list of the way that we consider that the medical - of the directions submission - the way that the evidence ought to have been dealt with by the judge.

McHUGH J:   Could I take you back to the question I asked you earlier?

MS SCUTT:   Yes.

McHUGH J:   Just take those last four dots:

that research shows doctors often do not “pick up” that their women patients are suffering from criminal assault -

Now, is there any evidence in this case to that effect?

MS SCUTT:   Well, no, there was not.

GAUDRON J:   Well, is this a matter that a judge should do off her own bat, as it were?

McHUGH J:   See, that is the whole problem; that if you say, well, these are matters that should be put by judges to juries, then one would expect an argument about judicial notice, that even in the absence of evidence - - -

MS SCUTT:   Well, in my submission, I am making that submission, yes.

McHUGH J:   You have to.  You have to.

MS SCUTT:   I do make that submission, your Honour; that it is incumbent on members of the judiciary to acquaint themselves with contemporary material relating to matters that may well come before them when they sit on the Bench and, if they do not do that, then, in our submission, they do a disservice because they cannot sit on cases where these issues arise and deal with them properly, and properly inform the jury, unless they, themselves, are properly informed.

GAUDRON J:   But how does one - I mean, a judge may, for example, know that there is research.  There may be contrary research.  I mean, I can well see, in this area, that they may well be room for expert evidence, which can then be related to the evidence in the case.  But how does a judge know the training is recognised as being necessary to enable medical practitioners ‑ I mean, I would have thought it might have been sufficient to say, well, the evidence of the expert is that often women do not make complaints, in direct terms, about these matters.

MS SCUTT:   Yes, we would be happy with that.

GAUDRON J:   But was that the evidence?

MS SCUTT:   In my submission, no.  You see, in my submission, there was not a need for evidence to give a direction like that.  If one goes back to the directions that the judge gave, for example, he said - let me try to find one where he said - he was talking about Ms Osland not leaving, and he actually said, “Well, members of the jury, you know that some people, of course, they can deal with marital disharmony in all sorts of way,” and he gave a list, and he said they can go to the Family Court.  I will find that reference. They can go the Family Court, words to that effect.  If he considered that he was competent to give that statement to the jury - nobody had brought evidence before that court that people go off to the Family Court if they are having marital disharmony.  He gave that statement to the jury ‑ ‑ ‑

McHUGH J:   That is the sort of matter that a judge could surely take judicial notice of.  After all, there is a statute there which provides for dissolution of marriage and restraining orders and matters of that nature.  But that is the point, that if you want to argue a case that judges should in every case, irrespective of the evidence, give directions such as you seek, then you have got to persuade us by argument that the matters that you state there in paragraph 4 are not open to dispute in the relevant medical and psychiatric ‑ ‑ ‑

MS SCUTT:   Probably not, your Honour. 

McHUGH J:   You assert that. 

MS SCUTT:   We put material before the Court that shows that.  If the AMA ‑ ‑ ‑

McHUGH J:   You have put some articles, but ‑ ‑ ‑

KIRBY J:   I notice that in Malott, the judgment of Justice Major says:

The appellant led expert evidence that showed that she suffered from battered woman syndrome. 

The jury recommended the minimum sentence, because of the “battered woman syndrome”.  So presumably in that case there was specific evidence ‑ ‑ ‑

MS SCUTT:   There was in this case too.

KIRBY J:   - - - when it was applied to the facts and which convinced the jury and led to their conclusion.

MS SCUTT:   There was in this case too, there was specific evidence given about it, make no mistake about that.  Dr Byrne was called specifically for the purpose of giving that evidence.  Our submission is that the judge did not deal with it in a way that the jury could properly understand it.  That if, for example - I do have to take issue with your Honour that, yes, we all know that a Family Law Act exists, but we also know too, if we actually keep abreast of what is going on, that the AMA, for example, the Australian Medical Association, on 3 March this year, put out a specific policy that was written, which we have included in our documentation, about this very fact of women having difficulty with disclosing that they are suffering from criminal assault at home and other forms of domestic violence and that doctors need training in relation to it.

If, as I say, this judge felt that he was able to make a comment about the Family Court without any evidence before him, then that judge ought properly to be able to make a comment about an Australian Medical Association policy.  The policy was not ‑ ‑ ‑

McHUGH J:   That may be now, as you were just about to say, but the policy was not in existence.

MS SCUTT:   No, but with the greatest of respect, your Honour, we are living in a time when for over 25 years in this country there has been continuing debate about the issue of criminal assault at home, and the consequences of that, the dynamics in relation to it, the violence of men who engage in this activity where they are living in homes with their wives or where their wives have left them, or a person who has been in an intimate relationship, and surely this Court should say that it is incumbent upon every member of the judiciary in this country who is actively participating, whether it is in trial work or appellate work, that they ought to know the basics about this particular issue.

GAUDRON J:   But what ought they to know?  One can understand that they ought to know that people in this situation do not necessarily make contemporaneous complaint ‑ ‑ ‑

MS SCUTT:   Well, they would be very unlikely to.  I would not say they do not necessarily, but the weight would be on the other side.

GAUDRON J:   What else should they know?

MS SCUTT:   Particularly, for example, that where it comes to an issue like anal rape, that may be something that they would be even less likely to disclose.  May I say that what is actually disclosed in the transcript in this case is that when Ms Osland was giving her evidence, school children from the Bendigo area, plus other members of the public, came into that courtroom and were allowed to remain throughout the totality of that morning’s evidence.  It is on the transcript ‑ ‑ ‑

GUMMOW J:   What has that got to do with it?

MS SCUTT:   It has got this to do with it, your Honour ‑ ‑ ‑

GUMMOW J:   With the particular issues in which you are responding to Justice Gaudron.

MS SCUTT:   Yes, I know.  If I may explain it in this way, your Honour.  That when she was giving her evidence, there were these other persons in the Court.  Now, in no way, make no mistake, we are not advocating closed courts at all - closed courts are inimical to the rights, particularly of persons in the position of the accused in this case, but what I am saying to this Court is this, that trial judges are under an obligation to keep themselves aware and up to speed, as it were, on relevant issues of the day that they ought to take into account in terms of their professional responsibilities.

What also ought to have been recognised was that it is difficult for persons to give evidence in a court about this sort of violence that they are being subjected to, and even more so, if there is a crew of members of the public and the school children turning up in the courtroom.  But let me say this, that we have done our best to set out in this document, which is headed ‘Directions’  ‑ ‑ ‑

GAUDRON J:   I have not had the chance to read this document so I go back, what else besides the unlikelihood of complaint must the trial judge know and for what purpose?  You see, the first I can see may well deal with the way in which evidence is to be treated by the jury and it may require something like the direction that there may be good reasons why a complaint would not be made, et cetera, but what else must a trial judge know?

MS SCUTT:   Right.  The trial judge must also give directions along the lines of what was spoken earlier that myths and stereotypes do exist in relation to women who are victims and survivors of criminal assault at home and then ‑ ‑ ‑

GAUDRON J:   That is not going to mean anything.

MS SCUTT:   No, I know that, with respect, yes, but then they ought to set out what these are for the edification of the jury and this was, in fact, available.  The material was available from Dr Byrne as to the fact that he had eight categories and so forth by which one can, in his terms, identify who is a battered woman.  But the problem with that material was it was put before the jury as if what they had to do was identify whether Ms Osland was a battered woman or not.  That is not the task that they were set to do and they were misdirected in that way.  They should have been told that this evidence about these different happenstances where women can be locked into situations of violence are referable to or could be referable to the defence of self‑defence for this, this and this reason.  Let me take one ‑ ‑ ‑

GAUDRON J:   Well, what are those reasons?

MS SCUTT:   Why they are referable?

GAUDRON J:   You said, “for this, this and this reason” by which I took three.  I want to know what they are, in legal terms.

MS SCUTT:   If we go to the issue of the anal rape.  Evidence was given by Ms Osland that she had suffered from anal rape.  That evidence should have been put to the jury in terms of what she had said and what her doctor had said that was possible corroborative evidence and the judge also should have said, “Of course, members of the jury it is up to you if you want to believe this or not.  You know that she did not complain specifically to her doctor but then we know also that women do not necessarily, in fact, maybe unlikely to complain.”  Then he should have said that if the jury accepted that the anal rape did happen it would be relevant to their deliberations in this way, to show or to provide a reasonable doubt on the question whether Heather Osland honestly feared when Frank Osland was killed by David Albion that Frank Osland was a real threat to her life or her bodily integrity, that is, that her acting with David Albion was as a consequence of her fear of being killed or being raped.

McHUGH J:   Well, by that time, if the judge had given a series of directions in respect of each incidents, their eyes would have been glazed over and they would not be listening at all.  Much of your argument seems to proceed on the basis that the judge is required to give jury explanations or possible explanations of every set of facts in the case.  That is not the purpose of a summing up.

MS SCUTT:   No.

McHUGH J:   The purpose of a summing up is to give legal directions and to summarise the evidence and the judge has a wide discretion as to the extent to which she or he deals with the evidence in detail.  The judge’s obligation is to put the accused’s case, which may be done in a summary form - you do not have to put every word that the accused says or every explanation.

MS SCUTT:   With respect, your Honour, we are not suggesting that, and if your Honour understood that I was, then I apologise; I was not suggesting that.  I read a very short clause.  What this judge did do, he did go through in relative detail about various aspects and incidents of violence and so forth.  All that we are saying is that when he put forward that evidence to the jury he ought properly have said to them:  one, when she said on the intercept, she was not suffering from any violence in the three years leading up, members of the jury, that could be perfectly true, and now what she is saying about the violence will be trumped up, as the Crown suggests, for the purpose of getting her off, because she had heard somewhere that battered woman syndrome might be used; two, that the words on the intercept, however, could have been there on the television interview because, at the time those tapes were taken, the phone intercepts were on and the listening devices in the house, and so on, it was four years after the death of Frank Osland.  Therefore, it is also feasible that she was making those statements because she did not want anyone to believe that she had a reason to kill Frank Osland.

McHUGH J:   Well, this seems to me to be just illustrating what I put to you, that the judge would have to deal with the facts in the greatest detail and with all the possible explanations; that is not the function of a summing up.  Juries are drawn from the general community and the relationship between judge and jury is not that of trained nurse and mentally disabled person; jurors are people of the world, they bring their collective knowledge of what goes on in the world and many would say, in many respects, their knowledge is greater than that of judges.

MS SCUTT:   Well, may I turn to page 6?

GAUDRON J:   Of - - -?

MS SCUTT:   Of the Directions document.  It is page 10, I am sorry, and it is paragraph 5.3 of the document, yes, that we have been on, and that we have been on since lunchtime, the one that is headed Appellant’s Submissions re Directions and it is dated 23 April 1998, and I would like to commence at paragraph 5.3.  These are directions that, in our submission, the judge ought to have given.  One:

women are or can be “locked into” violent relationships through socialisation, economics, responsibility for children, lack of alternatives such as housing, independent income, broader family support, the opinions of neighbours or family friends (‘what will the neighbours/my family/friends etc think’?);

Two:

women may live apparently ‘independent’ lives, without any (or little) indication to the outside world of the violence occurring within the home, but this does not mean it does not happen, or is not happening;

Three:

women are frequently beaten ‘were it doesn’t show’, so that there may well be no outwardly visible signs, such as bruising, or wear sunglasses or makeup to conceal marks/bruising;

Four:

women are likely to be reticent about complaining to others, or telling others, and ‘select’ those whom they tell;

Five:

if they do tell (any) others, they are like to downplay or understate (rather than exaggerate) the violence to which they are being subjected.

Each of those is based on research that has been available in this country since at least 1983, and we can put that material before this Court.  Now, 1983, with respect, is 10 years - more than 10 years before this trial took place, and that is the sort of direction that ought to have been given in that case in relation to this aspect.  When your Honour talks about - - -

CALLINAN J:   Dr Scutt, I just missed that.  Where were you reading from?  I beg your pardon.

MS SCUTT:   I am sorry, it was on page 10 and page 11 of the document that is headed Directions, and it begins at the bottom of page 10, in paragraph 5.3.

CALLINAN J:   Thank you.

MS SCUTT:   That material, in our submission, ought to be known as a matter of judicial notice.

GAUDRON J:   If that is all known, is there any need for expert evidence?

MS SCUTT:   Yes, there is because the - I am saying that amongst the judiciary it should be known.

GAUDRON J:   The trend, as I understand it - I may be wrong in this - has been to allow expert evidence of these matters.

MS SCUTT:   Yes.

GAUDRON J:   My question to you is:  if this ought to be known by a judge, ought there to be expert evidence?

MS SCUTT:   We would say that there ought to come a time when there does not need to be expert evidence on this issue, but what one will see if one looks at the Canadian cases and actually at the other cases in this area, there has been, if one can put it in these terms, a learning curve and that what happened at the beginning when this sort of evidence was first put into trials, it was put in as if the woman was sick, as if she was ill, as if she was the one with the problem.  Gradually the cases have, particularly in Canada - and we refer the Court particularly to the Canadian decisions, both Lavallee and the Malott Case that are before this Court with references in those cases - because the Canadian position, we say, is far preferable to the position in the United Kingdom which was what the Court of Appeal in this case relied upon.  For example, it was first characterised as if the woman ‑ ‑ ‑

GUMMOW J:   The distinction with the United Kingdom being what?

MS SCUTT:   We say that they are still dealing with it as if it is a sickness, they are still dealing with it as if it is being used as an excuse for killing rather than being seen as a rational approach in a circumstance where a person believes that she is perhaps going to be killed.  It has to be ‑ ‑ ‑

GAUDRON J:   It goes to the acceptability of evidence as to a fear, does it, the reasonableness of a fear?

MS SCUTT:   Yes.

GAUDRON J:   The existence of a fear, the reasonableness of it.  Does it go beyond that to ‑ ‑ ‑

MS SCUTT:   Can I say this.  It has to be looked at in two ways.  It has to be looked from the external reality of the situation.  That is why we call it the battered woman reality, because what it is about is:  what is the reality?  Put to one side what is going on in the individual woman’s mind and look at the external circumstances under which that person is living.  Let me use a different example.  We have always seen self‑defence - by “we” I mean the common law world - as a situation where a person is walking down a dark alley, somebody else comes and shoves a gun in their ribs.  A thinks, “I’m going to be killed”, and fortunately they have some weapon by which they can match the gun in the ribs and they kill.  Now, that is a very easy circumstance to see.  We can all see that if a person believes honestly that their life is under threat, then if it is a reasonable response in the circumstances to kill in order to save their own lives, we would see that as the classic case of self‑defence.

The problem is, however, if we come to the secretary case where the man was asleep when he was killed.  Most people would say this cannot possibly be self‑defence where somebody walks in the door as somebody else is asleep on the couch - A walks in the door, B is asleep on the couch, A shoots B.  We would say that cannot possibly be self‑defence but when we put it in context, then we can understand that it could well be self‑defence.  If A has lived in a continuing violent relationship with B and B, for example, has said - he has been out somewhere and he says, “When I wake up I’m going to kill you”.  A then shoots B.  One can see that that could fit within the notion of self‑defence because ‑ ‑ ‑

GAUDRON J:   One can see that there may be a fear.  The next question is whether the steps taken are reasonable in the circumstances.

MS SCUTT:   Yes.

GAUDRON J:   How do you relate it to that question?

MS SCUTT:   In this way, that to A who is at the door with the gun, B is not a helpless person who has no power, who is not a threat because B is asleep or unconscious.  B is a person who symbolises and is in reality a real and present threat to A, because A has the past experience of the violence that has been inflicted upon her and she knows that that person is likely to carry out the threat.  She is also locked into the situation in that she can see no other way out.  If we go back to the person in the alley - - -

KIRBY J:   It does seem to condone people taking the law into their own hands.  I mean, do we now put no store on human life?

MS SCUTT:   No, absolutely not.

KIRBY J:   Do we put no store on people’s lives?

MS SCUTT:   No, I disagree with your Honour that we are putting it that way.

KIRBY J:   Well, that is how it appears to me, that if it is extended it means people can just go around killing each other.

MS SCUTT:   No, it does not, your Honour.

KIRBY J:   I mean, I thought we had moved from that uncivilised situation.

MS SCUTT:   No, with the greatest respect, that is not what it means at all, your Honour.  When your Honour said that means that people just go around killing one another, that is not true.  We would say that in a circumstance where somebody has been living in a relationship which is characterised by violence, threats and fear, and the one who is under that fear of threat and attack - we need to see the full context in order to understand whether the response is reasonable.

KIRBY J:   I agree with that and I can understand that some situations will be reached like the straw on the camel’s back where it is just intolerable, but to think that we would be laying down a legal principle that people can go around shooting sleeping people, I just find that so out of line with what my understanding of the common law requires that I certainly could not agree to that.

MS SCUTT:   If we go back to Zecevic, where the Court said that the defence involves a reasonable belief that the force used by the accused was necessary in order to preserve their life.  If you look at that, if the jury ‑ ‑ ‑

GAUDRON J:   Is not “reasonable” an objective test, as it were?

McHUGH J:   Community test.

MS SCUTT:   This is an issue that we would like to address, the issue of reasonable, in the context of self-defence, and the issue of the ordinary person in the context of provocation.  Let us put it this way:  we do not adopt the notion that for the reasonable person, and/or for the ordinary person, that what one has to do is seek back into the ethnicity of the person, the sex of the person, the age of the person, whether the person has disabilities, and so on.  We do not take that approach, but what we say is that the reasonable person and the ordinary person test - no, wait, let me say, we do not do that because we do not want the ordinary person and the reasonable person test to be trammelled or to be bound up in stereotypes.

Take, for example, the case of Moffa, and this is one case in which we can take issue with his Honour Justice Murphy, where we do not agree with what he said in that case, that one looks at the ethnicity, and so forth ‑ ‑ ‑

KIRBY J:   I did not sit in Moffa.  Did you say me?

MS SCUTT:   Is it Moffa?

KIRBY J:   I did not sit in Moffa.  Justice McHugh sat in Moffa.

McHUGH J:   No, I did not sit in Moffa.  Moffa is in 138 CLR.

MS SCUTT:   No, I am sorry, I am talking about Lionel Murphy.  I beg your pardon, I am talking about Justice Murphy, I am sorry, in Moffa.  I beg your pardon, I have been mixed up.

McHUGH J:   I think you said Justice Murphy.  That is what you said.

MS SCUTT:   Did I?  Well, then we will just have to get the reference, but it is the case where ‑ ‑ ‑

McHUGH J:   It is 138 CLR, is it not, from memory?

GAUDRON J:   You and the Bench are at cross-purposes to some extent, but as it happens, you are perfectly correct.  You have nothing to apologise for.

MS SCUTT:   Well, I know that in Masciantonio was where your Honours said that we should look at these matters.  We say that that has a potential to erect yet another stereotype in the context of the ordinary person and the reasonable man.  It is not of assistance to characterise the ordinary person or the reasonable person, I mean, as somebody who might have Latin - something that is seen as a Latin hot bloodedness, for example.  That is simply erecting another stereotype, but what we say is that the ordinary person test and the reasonable person test, as they have been applied, in fact have been applied in a stereotypical way, because they have been applied -whether you call it personal or what you call it, the fact is that those tests have been applied, taking into account the reality of, as experienced by, white middle-class judges who ‑ ‑ ‑

GAUDRON J:   But it is a jury question, at the end of the day.

MS SCUTT:   Yes, but it is the way that they are instructed, with respect; it is the way that they are instructed.  I do not - all I seek to say ‑ ‑ ‑

CALLINAN J:   I do not think domestic violence is necessarily confined to people who are not as well off, the underprivileged.

MS SCUTT:   No, I would agree, yes; I would agree, that is very true.

CALLINAN J:   It is just that you were talking about middle class people.

MS SCUTT:   No, but what - may I say I absolutely agree with your Honour, and I know that your Honour is very well aware of that from the book that your Honour has written.

CALLINAN J:   Thank you, Doctor.

MS SCUTT:   Yes, I know that. 

McHUGH J:   That is a work of fiction, is it not?

MS SCUTT:   And in that particular case, your Honour, the woman in that circumstance was able to escape because she had the resource ‑ ‑ ‑

CALLINAN J:   Do not trouble about my book.

MS SCUTT:   She had resource by which she could do that.

KIRBY J:   Will you give me the reference to this authority?

MS SCUTT:   Anyway, she was able to extricate herself from that situation because she did have the financial resources to do so.  But, of course, there may well have been women who did have those financial resources but nonetheless could have been locked in because of the social values that society imports into the notion of marriage and so on.  But may I come back to this notion of the reasonable person.  What we want this Court to acknowledge is that the reasonable person truly has to be seen in terms of a neutral entity.  Let me explain it this way:  what people have to do when they are thinking about the reasonable person, is in fact look at the totality of the external circumstances. 

May I just give the Court another example, because it is a telling one - and I will be quick about it.  When Patricia Hearst was captured by Symbionese Liberation Army, the SLA, back in the 70s in the United States, she was held in a closet for several weeks - I think it was 6 to 10.  In that circumstance, it does not matter whether she is a woman, whether she is a man, whether she is a black American, whether she is a person of minority ethnic background at all, being held in a cupboard for 10 weeks, surely we all can see that that is a circumstance where one would be in extremis and a reasonable view is that one would fear for one’s life. 

In that circumstance, there she is in the cupboard and she manages to fashion some sort of an implement whereby she thinks, “If they come to kill me, I will be able to escape from this situation.  I will have to kill in order to escape, but that is all I can do in order to save my own life.”  It happens that she is let out of the cupboard and does not use that implement at that time because the circumstances are not such as that she can do it.  At a later time, for example, she might kill the person with another weapon, say in a direct situation of self-defence.  But the fact that she has fashioned that implement in the cupboard does not mean that she was pre-meditating killing in a way that we would characterise as murder.  We would see, surely, that a person acting reasonably in those circumstance would have to find some way out and that that may well mean that they have to kill in order to do so and fashion an implement to do that.

The reason that we can see that it does not matter whether it is a woman or a man or what it is in the cupboard is because it is easy to envisage being in that situation and what that situation means.  I now ask this Court to consider the situation of Heather Osland.  Heather Osland is in a situation where no, she is not locked up in a cupboard like Patricia Hearst, not in the physical compartment, but in that marriage she was in she was just as surely locked in the closet as Patricia Hearst was locked in that closet.  She knew that in order to get out to save her own life she had to do something, and what she believed she had to do was to kill the person who had the key to the closet.

That was the only way that she could escape the possibility that she would be killed and in order to do that she thrashed about.    If one wants to address this business of the grave, here we have Heather Osland in true fear of her life thrashing about, trying to think rationally about “How will I escape this?”  No point in going to the police.  She has been to the police before.  We have got a list of the visits to the police.

CALLINAN J:   Dr Scutt, I think there is quite a lot of force in what you are saying about all of that for the reason that I would think that people would know and understand these things and I do not really understand how a trial judge can be expected to select and then quote from literature on these topics to the jury.  That is, in effect, what you are saying.  Perhaps you are saying that informed and interested people may know these matters better than perhaps a jury would and therefore they have to be brought home to a jury.

MS SCUTT:   Yes.

CALLINAN J:   But is not the cure for that to call expert evidence which was done here and then to give a direction on the expert evidence?  There was a direction given and it was not given in a vacuum.  It was given in relation to and because the jury had heard the evidence, I would have thought, that you summarise in paragraph 5.5 on page 11 of the hand‑up you gave us at lunchtime.  What troubles me is the suggestion that a judge has to select some literature making the assumption that the jury is perhaps a little behind in awareness, perhaps even a great deal behind in awareness, of these matters - that is behind informed and interested people.

MS SCUTT:   Your Honour, I do not say that the judge has to go out and get literature and then bring it back to the jury and tell them about the literature, but what we do say is that, first, they ought to inform themselves, but secondly, there was expert evidence here, and the way that the expert evidence was dealt with, we say, was not useful to the jury, and we can only go back to referring to what we have said in our directions.  I mean, the multiplicity of ways in which “battered woman syndrome” - it was even described as a “battered syndrome” at one stage, and all that we could say is perhaps that was the best way to describe it in the context of this trial.

McHUGH J:   But one problem I have with your submissions on this aspect is that the matters to which you refer in paragraph 5.3, I would have thought, would be known to every jury sitting in a place like Bendigo, or Melbourne, or Sydney, or, for that matter, anywhere else in Australia.  Surely every adult person in the community, of reasonable intelligence, knows that women are frequently beaten where it does not show, that there be no outwardly visible signs such as bruising, or they may wear sunglasses or make‑up to conceal marks or bruising.  Surely that is part of community knowledge these days.  It really is an elitist view about the intelligence of juries.

MS SCUTT:   We would never take an elitist view in any respect, your Honour, and particularly not in relation to juries, because we certainly applaud the decision in Cheatle, for example.  But what we say is that, first, if what your Honour says is so, then judges around this country have been allowing expert evidence in relation to this matter quite wrongly erroneously, and they ought not to have been doing it and we - - -

McHUGH J:   I am not talking about generally, I am talking about the specific matters that you put down.

KIRBY J:   I think you say the judge has got to bring the authority of his office to explain to the jury, so that they not think that this is some way out or trendy view, but that this is something that the law, from its experience, recognises and bring it home to the jury with the authority of the judicial office and apply it to the facts.  But, at some stage, I would be appreciative if you would point to what the expert said and how the judge - where we can find how the judge treated it, and how you say it is inadequate, measured against what the Canadian Supreme Court has said, and what you say in your submissions.

McHUGH J:   Can I just put this to you?  The matters that you refer to in paragraph 5.3 I would have thought were known to every jury around the community.  What they do not know, I would think, is the sort of matters that is referred to at page 2050 that was described by Dr Byrne:

changes in thinking ability, avoidance symptoms, increased alertness or arousal, learned helplessness.

They are matters that the average jury would no doubt benefit from expert evidence on.  That sort of evidence needs to be called.  But the fact that women are likely to be reticent about complaining to others, I would be amazed if the average jury is not aware of such a fact.

MS SCUTT:   Well, let me inform this Court that when his Honour made his charge to the jury in relation to Dr Peterson’s evidence, he actually said that Ms Osland did not tell her trusted doctor of this anal rape from which she said she was suffering.  He was asked to correct that, because there was no evidence whatsoever that Dr Peterson was her trusted doctor.  He declined to do that.  Now, that, therefore, led the jury into a position where what could you think?  Here is the judge, in a position of power and authority, saying, “She did not even tell her trusted doctor,” and yet, what we know is he was not her trusted doctor, and there was a specific request made to inform the jury of that.  What we say is that if - for example, let me give you this:

For the reasons I have just mentioned, the legal landscape in this case is littered with some unusual matters.  The life and times of Osland, arguably connected with a battered woman syndrome, which the Heather Osland defence says is relevant to self‑defence and provocation, and battered woman syndrome or not -

et cetera.  Now, when you talk about “legal landscapes being littered with unusual matters” and so on, it is not conducive to actually informing the jury what this is and that it is - the material is to be treated with some respect.

I mean, your Honour also mentioned the issue of learned helplessness with which some issue can certainly be taken because one of the problems in this case and more and more the Canadian cases are recognising this, that that sort of formulation means that generally speaking, if a person had learned helplessness, one has to be surprised that they have the ability and the rationality to actually save themself from death by employing self-defence in order to do so.  Self-defence is the act of a rational person who sees that her or his life is under direct threat and they respond in such way, in the circumstances, which is the only way that they can see that they can deal with that threat.

McHUGH J:   Well, I am not sure about that in relation to self-defence.  I would have thought self-defence was a basic instinct.  I do not think too many people who kill in self-defence sit down and calmly work out the probabilities.

MS SCUTT:   No, I am not suggesting that, your Honour.  But what I am saying is that it is not the sign of somebody who is helpless to actually respond in such a way to save their own life, and that has been one of the problems.  For example, in this case she did take many steps to try to save her own life.  She left this man.  She called the police; others called the police.  She did what she could in the circumstances to escape this man’s violence.  In the end, she believed that she was so locked in that there was no escape other than saving her own life.

McHUGH J:   Yes, but did not the judge leave those issues in a general way to the jury?

MS SCUTT:   I guess that all that we can say in relation to that is, refer the Court to our submissions on directions, say to this Court that our reading of the charge, which is a very long charge, that the judge certainly did not do that in such a way that the - I have just had handed up to me by my learned friends, page 1515 of the appeal books.

GUMMOW J:   Line?

MS SCUTT:   It is the paragraph commencing “Whatever violence there was of a physical nature”, line 6.

McHUGH J:   This is the address of counsel, Mr Morgan-Taylor.

MS SCUTT:   It is the address, yes, I am sorry.

KIRBY J:   The judge’s directions on the battered woman syndrome is at 2045 and thereabouts.  He seems to have been not unsympathetic to the existence and rather, well he says that Dr Byrne described it in:

jargon‑free clarity, the characteristics of a typical battered woman relationship.

It does not seem, if I can say so, an unsympathetic treatment by the judge of the evidence, such as had been called.

MS SCUTT:   Well, I will just have to refer the Court to the actual - to every bit of the transcript where this expression is used to say that that is not the way that we read this summing up in relation to that matter.  And we also read it in such a way that it does not seem clear to us, and our submission is that it could not have been clear to the jury as to precisely what it was that they ought to do with this material.  For example, when the jury came back, the one question that they asked was for the judge to explain how a long history of violence could be relevant to provocation.

All that the judge did was actually reissue, as it were, his direction on the law of provocation, complete with “would” and “might”, which, as we have noted in our submission, is directly contrary to Green, but that, we say, was hardly of any help to the jury, and what the jury was indicating, we say, in that exchange was that it was having difficulty with the proposition that was being put, that a long history of violence is relevant to provocation and we say that they would have had no chance to determine how the long history of violence was relevant to the self-defence defence.  We can only say that, as I say, by reference to all the - for example, he said this is a matter:

now been recognised by the law.

Appeal book page 236.  It is not in charge; it is in a comment he made in the course of the trial and, albeit it is not in the charge, we say it is relevant to the way that this jury saw the matter.  He says:

it has now been recognised by the law -

although -

the ramifications of this defence, which in terms of personal experience I only derived from reading a fairly limited cases about it -

At appeal book page 216 he refers to it as:

your battered woman syndrome -

referring to counsel for Ms Osland.  He does that on a number of occasions, and they are all listed, at page 3 of the document that we handed up to the Court immediately before lunch.  He refers to it as a:

nothing but a set of symptoms.  It’s not an illness.

A collection of silent symptoms.  At appeal book 820B, for example, appeal book 2152, appeal book 2153, appeal book 2156.  He says that it was not a part of the opening, instead, he says it was a “Stockholm syndrome” that they were talking about.  The jury was absent then but it indicates, in our view, a particular disposition or understanding with regard to this issue.  It was a category into which she had to bring herself or fall within.  She did not have to fall within any category.  What she was putting to the jury was that she acted in self-defence or provocation.  She did not have to fall within being a battered woman.

That was not a matter that the jury was supposed to be responding to, but that was said on a large number of occasions.  And then he said it was something that may not matter, whether she fits into it at all, something that might be used by the jury to reach a conclusion that the Crown had not satisfied them that she had not finally snapped or lost control.  At one stage he said it was a defence.  I had understood that at one stage he said it was not a defence, but we have not found the page reference to that, so I have to exclude that.

I have just been informed that at 236 the jury were out and I am indebted to my learned friend, if that is so, and I apologise to the Court, if that is so.  But what I say to this Court is that - and I have noted where there are several other times when he said it when the jury was out - but the fact is that what it shows is a lack of understanding about the way that the evidence was being put and the way the evidence ought to be put to the jury in order for them to make their decision.  If the judge did not understand how it was being put, if the judge did not have a comprehension of what it meant, then - yes, thank you, 2046, the battered woman syndrome is not itself a defence.

GAUDRON J:   That is right.  You do not object to that.

MS SCUTT:   No, we do not at all.  We do not object to that at all, but you see, if on the one hand, he is saying it is a defence and then on the other hand he says it is not a defence, what are the jury to believe and to understand.  We can only say that it indicates that if they were in some difficulty, we are not surprised.  The difficulty arose because of the way that it was dealt with.  It is then described as supporting provocation or
self-defence to be used ‑ ‑ ‑

GUMMOW J:   You have to look at page 2048 line 24.  Page 2046 line 20 is putting it negatively and 2048 line 24 is putting it positively.

McHUGH J:   And at 2049 the judge said, line 15:

But it may not matter ..... whether she fits within the syndrome at all.  It is after all only words to describe behaviour and consequences which occur in a relationship, extrapolated to erect some propositions for scientific purposes.  It is the behaviour that you should focus on, as disclosed by the evidence, and whether or not in the light of my instructions to you, concerning self-defence and provocation, you are satisfied that the Crown has negatived those defences.

MS SCUTT:   Well, yes, be that as it may, your Honour, I mean, all we can say is that this charge and this trial were littered with references to this and they were not consistent.  In some instances they were plain wrong, by saying it was a defence - it is not a defence, by saying ‑ ‑ ‑

McHUGH J:   But counsel at the trial took no objections, none of these objections that you are now making.  The counsel saw the jury.  They see how the jury were understanding the summing up.

MS SCUTT:   All we can say, your Honour, then is that, first of all, that is not an impediment to this Court dealing with it - number one.  Number two ‑ ‑ ‑

McHUGH J:   No, but it is some evidence that the jury were not confused, otherwise counsel would have been seeking directions about the matter.

MS SCUTT:   Your Honour, in response to that we say that, as I have said, it is not an impediment, number one; number two the jury clearly was confused because they came back to ask about provocation and they did not get an answer that we say was responsive to their question.  First of all, it was a wrong direction in terms that the use of the “would” and “might” when, in fact, “could” should always be used, number one, and number two, it did not link in the violence with provocation in the law in a way that they could understand and if the Court looks at that exchange, what the Court would see is that if the jury was asking a question about it, it would be hardly likely that what the judge said to them would give them any assistance on that matter.  May I just simply conclude on this point of self‑defence.  Does the Court intend to rise now or at 4.15, may I ask? 

GAUDRON J:   At 4.15 but while you are thinking about those matters the Court schedule is premised on this case finishing tomorrow.  How much longer will you be?

MS SCUTT:   I will endeavour to be relatively short, if the Court pleases.

GAUDRON J:   Are we within the schedule, Mr Weinberg?

MR WEINBERG:   If my friend really is going to be relatively short, of course we are.  I indicated to my friend at the outset of proceedings today that if she went for the whole of today I would certainly complete my submissions tomorrow and give her a reasonable time for a reply and that is the kind of timetable that I was looking towards, if the Court pleases.

GAUDRON J:   We will certainly sit till 4.15 today and we will commence at 10 o’clock tomorrow.

MS SCUTT:   Thank you.

GAUDRON J:   That will give you some little time.

MS SCUTT:   Thank you, your Honour.  I would, just on this point, like to refer to the Court to Malott’s Case at page 7, that I think the Court already has before it, where there the Court sets out the admissibility of expert evidence.  It commences at line 20:

The admissibility of expert evidence respecting battered woman syndrome was not at issue - - -

McHUGH J:   Sorry, what page is it?

MS SCUTT:   Page 7 of Malott, and it commences at line 20:

The admissibility of expert evidence respecting battered woman syndrome was not at issue in the present case.  The admissibility of the expert evidence was not challenged.  However, once that defence is raised -

they called it a “defence”, and we take issue with them on that, but it does make a difference to the directions that we are saying ought to be given.

However, once the defence is raised, the jury ought to be made aware of the principles of that defence as dictated by Lavallee.  In particular, the jury should be informed of how that evidence may be of use in understanding the following:

We would more properly say that once evidence of “battered woman reality” or “battered woman syndrome” has been raised, then the jury ought to be made aware of the application of that evidence to the principles of self-defence and/or provocation, depending what is being argued.

GAUDRON J:   Can I just interrupt you there.  May I take it that there is no significant difference between the evidence upon which the Canadian Supreme Court proceeded in Lavallee and the expert evidence in this case?

MS SCUTT:   I agree.  The expert evidence in Lavallee was very similar, and the issue that has been taken in Malott actually is an issue that has been taken - sorry, the only way in which that evidence, in a sense, has been critiqued is on this aspect of learned helplessness, where the material that we have supplied to the Court indicates that there is a real critique around that, and if I just may fill in, that what has been happening in Canada is that there has been a national inquiry going on in relation to the application of battered woman syndrome, as they call it, and cases of women who have been convicted of crimes, and a review of the cases is ongoing.  Part of the reason for that is that what they have realised is that framing this in terms of learned helplessness certainly is not useful for the purposes of women who are not totally ground down and unable, for example, to make efforts at attempting to escape.

What the research shows is that it is most unusual for a women not to make an attempt to escape.  The vast majority of them do.  They try friends, family, doctors, police, in all sorts of ways and, because there is no help forthcoming, it is more no help is there rather than learned helplessness.  It is learning there is no help.  But, anyway, I return to what Malott said, and I agree that the evidence in this case - Osland’s Case - was the same sort of evidence that was put in as expert evidence in Lavallee:

1.  Why an abused woman might remain in an abusive relationship.  As discussed in Lavallee, expert evidence may help to explain some of the reasons and dispel some of the misconceptions about why women stay in abusive relationships.

2.  The nature and extent of the - - -

KIRBY J:   Can we just pause there?  Do you say that the expert evidence you called met that point, that is to say, explaining why, despite the abuse, the appellant stayed in the relationship with the deceased?

MS SCUTT:   Yes, he did speak about the difficulties that women had in terms of getting out of abusive relationships - that is, the notion of being locked in to a relationship.

2.  The nature and extent of the violence that may exist in a battering relationship.  In considering the defence of self‑defence as it applies to an accused who has killed her violent partner, the jury should be instructed on the violence that existed in the relationship and its impact on the accused.  The latter will usually but not necessarily be provided by an expert.

I draw the attention of the Court to that because that is an important point in that what has happened in these cases where it has been regarded as battered woman syndrome is that the expert evidence that has been brought has usually been psychiatrists or psychologists.  They may not necessarily be the people who have the best grasp of this sort of dynamic, as it were, these sorts of situations.  Social workers may be more attuned and those women who have worked in women’s refuges and other sorts of organisations of that nature may well be better attuned to what the realities are of these situations than psychiatrists or psychologists who have attended several lectures through the course of their degree or qualification if they have done that.

It is important in this regard, we say, for this Court to acknowledge and recognise that an expert witness, for example, ought not to have to fall into some particular category of psychologist or psychiatrist and that the evidence can well be provided or, for example, by a psychologist.  The material that is before the Court comes from a wide range of disciplines.

3.  The accused’s ability to perceive danger from her abuser.

Now, under their law, the Canadian law:

provides that an accused who intentionally causes death or grievous bodily harm in repelling an assault is justified if he or she does so “under reasonable apprehension of death or grievous bodily harm”.  In addressing this issue, Wilson J. for the majority in Lavallee rejected the requirement that the accused apprehend imminent danger.  She also stated at pp. 882-83:

And I quote:

Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a “reasonable” apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner’s acts.  Without such testimony I am skeptical that the average fact-finder would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship.  After all, the hypothetical “reasonable man” observing only the final incident may have been unlikely to recognize the batterer’s threat as potentially lethal.

And I refer your Honour to that, in particular, in that the situation of the person asleep, what we have to look at is all the surrounding circumstances and the reality of the threat that that man represents to her.

The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience.

That is what the jury have to be told is that they have to understand this concept of the reasonable person as the reasonable person in that circumstance.  That is, the reasonable person locked up in the closet for 10 weeks with this apprehension as to the intentions of her kidnappers, her abductors.

GUMMOW J:   In Victoria, is there any statutory change to the common law as to self‑defence?

MS SCUTT:   We understand that Zecevic applies.

GUMMOW J:   Purely common law.

MS SCUTT:   Yes, your Honour, yes.  May I, in looking at this point 3 here too in Malott say this.  You see, what Ms Osland said was that she and David Albion waited apprehensively on that night to see how Frank Osland arrived home and when he arrived home in the group car as he usually did from work he was laughing and joking with his mates in the car.  That was the way that they knew - she knew she was for it.  Now that may seem very odd when we do not know the circumstances in which she is living.  Most people would think you see somebody jovially getting out of a work car with their mates laughing and joking that everything “in the garden would be lovely”.  Her perception and her understanding, because of the reality in which she had lived with this man, was that when he gets out of the car laughing and joking “I am for it” and that is what she knew that night.

McHUGH J:   But you do not need expert evidence on that, do you?  After all, if you accept her that is what she is in for, so it is just a question of the jury accepting her evidence on that point or not.  Expert evidence cannot elucidate or illuminate that aspect.  You either believe her or you do not.

MS SCUTT:   Your Honour, may I say it this way, that we accept the jury as a body of persons whose task it is to look at all the facts and we also respect jurors in the position that they have but we do say, with the greatest of respect, that it is misapprehending the position of jurors to, with respect, take an elitist position which is to say that they have all gone off and read the sociological material and so on and that they know that this is a very great reality for persons who live in these sorts of situations.

McHUGH J:   No, it is not a question of reading the social research on this aspect.  It is a question whether or not you believe her that in this particular relationship, when he came home smiling, that was the signal that he was going to batter her.  Now, it has nothing to do with battered wives in general.  It has everything to do with this particular relationship and whether or not you accept her evidence on it.  That is the only point I make about it.

MS SCUTT:   Your Honour, may I say this?  There are two parts to what your Honour said, one with which we agree and one with which we do not.  The one with which we agree is that it is her perceptions of that relationship, yes, but we do not agree that everybody would be able to understand - that the people on the jury have only to listen to that evidence and then to make their own assessment as the truth of what she says or she does not say, because what we know is, that there has been a large body of work which has picked out on this aspect, this heightened - the ability to perceive danger as something that arises out of living with a dangerous man for a long period of time.

Now, what I have to say, your Honour, is this, that if there are books being produced, if there is a broad body of research going on in this area, one has to say either a lot of money is being wasted, because we all know it anyway, or there is not that general recognition within the community about the realities of criminal assault at home and other forms of domestic violence.

McHUGH J:   With respect, you are not facing up to the concrete issue we are dealing with.  If the signal that she in for is him smiling, laughing, that depends on facts special to their relationship.  You will not find that in books.  You will not find that in theories.  It depends on him. 

MS SCUTT:   It depends on him, yes, and the reasonableness ‑ ‑ ‑

McHUGH J:   And that would be tested by her being cross-examined or giving further evidence as to the detail.  She could say, “Well, this night, this night, this night, he came home with a smile and then I got belted around the kitchen and this happened to me, that happened to me.”  All that depends on whether you believe her.

MS SCUTT:   It is the question of reasonable ‑ ‑ ‑

McHUGH J:   This is not to cut across your general argument, but you have to distinguish between what are issues for the jury and what may be the subject of expert evidence, such as questions of learned helplessness, confusion, memory problems and all that sort of - there is a distinction.

MS SCUTT:   Yes.  What we say, your Honour, is this, that the question of whether it is reasonable in the circumstances for her to respond - the man gets out of the car smiling.  Her response is, “Now I knew I was for it.  Now we knew we were for it; he is getting out of the car smiling.”  Yes, the issue is, what was her honest belief that what was reasonable in the circumstances.  The only way that you can measure reasonableness in the circumstances is if you know that this heightened perception of awareness of ‑ ‑ ‑

GAUDRON J:   Well, you have got to know the relationship.

MS SCUTT:   Yes.

GAUDRON J:   Then you can bring into bear the heightened perception.  But the point Justice McHugh is making to you is that the circumstances of the relationship are simply a matter for the evidence of the person concerned.

MS SCUTT:   Yes, absolutely.

GAUDRON J:   And so, you get in evidence of prior acts, as it were, although, in the ordinary notion of self‑defence, if you like, or provocation, the evidence might be limited to the immediate evidence.  But that is ordinary evidence.

MS SCUTT:   Yes.  Self‑defence, too, yes, and that you have to see that against the backdrop of the history - against the history of violence that existed in that relationship.  But the measure of what is reasonable, in our understanding of how one measures “reasonableness” is that you look at it in terms of the backdrop of that relationship, but you can also understand reasonableness because you know that women - generally women - not just Heather Osland - generally women living in those relationships do have that awareness.  And the fourth point, which I will end on - - -

McHUGH J:   Well, before you do, I would appreciate your assistance on the issue of reasonableness, because I suspect that all these theories - expert evidence that you are seeking to put forward, relevant though they may be, and necessary though they may be, will not solve the social problem that you are seeking to solve in this particular case, namely, acquittals, because the real problem is that juries just will not accept that this sort of conduct is reasonable.  So, you can call all this expert evidence - - -

MS SCUTT:   What conduct is reasonable?

McHUGH J:   Well, the conduct as in this particular case; a woman killing somebody who is asleep.  Now that may be the problem where the submissions should be directed to, the question of what is reasonable.

MS SCUTT:   She did not kill Mr Osland when Mr Osland was asleep; David Albion killed Mr Osland.

McHUGH J:   I am trying to help you; do not please get debating semantics.

MS SCUTT:   Well we do not see it, with respect, as semantics, your Honour.

KIRBY J:   I thought you agreed she took part in the killing, but she is not guilty of murder.

MS SCUTT:   We say that she did not do the act.

GAUDRON J:   All of this only becomes relevant though on the hypothesis that she is in some way criminally responsible, or might otherwise be criminally responsible, for the act causing death.

MS SCUTT:   Yes.

McHUGH J:   Let us leave this case aside altogether.  Take some other case where it is just a one out killing, there has been a history of battery and the partner is asleep and a woman comes in and kills the sleeping partner.  Now, you will call expert evidence, but eventually the jury has got to say whether or not it is reasonable, and it may be - it is my suspicion about this area, that irrespective of the amount of expert evidence that you call to assist the jury, you will still get conviction because the jury will not accept that it is reasonable.  Now what may be needed is some form of direction concerning reasonableness, and I would appreciate your assistance if you would turn your mind to that aspect of the case overnight.

GAUDRON J:   Yes, I think that would be helpful.

MS SCUTT:   Thank you.  May I just refer some overnight reading in addition to what the Court has.  I refer the Court to, as just one example, Reg v R (1991) 28 SASR 321 which we referred to earlier where, eventually, in that case the woman was acquitted. So, you see, juries are capable of understanding - - -

McHUGH J:   Well, of course they are, but there are many cases, but she was not acquitted in this particular case and there may be other reasons for it.

MS SCUTT:   No, but David Albion was.

GAUDRON J:   Yes, perhaps you might, in terms of your directions paper, just concentrate on a little on that and we will adjourn until 10 o’clock tomorrow morning.

AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY 24 APRIL 1998