Osland v The Queen

[1998] HCATrans 36

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M69 of 1997

B e t w e e n -

MARJORIE HEATHER OSLAND

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 1998, AT 11.12 AM

Copyright in the High Court of Australia

MS J.A. SCUTT:   May it please the Court, I appear in this matter, together with my learned friend, MS H.F. BONNEY, for the applicant, Heather Osland.  (instructed by Hale & Wakeling)

I have an obligation to draw to the Court’s attention the fact that Ms Osland did wish to be present but that has not been possible to organise as a consequence of State rules versus Commonwealth rules apparently.  But I draw that to the Court’s attention.

MR W.H. MORGAN-PAYLER, QC:   May it please the Court, I appear with my learned friend, MR I.D. McIVOR, on behalf of the respondent.  (instructed by the Office of Public Prosecutions (Victoria))

GAUDRON J:   Yes, Ms Scutt.

MS SCUTT:   If the Court pleases, we have five major points, hopefully dealt with in short circumference, to place before this Court.  The first two are short points of law which we say goes to a fundamental issue in the criminal justice system, namely the rights of an accused person not to have the Robinson rule that this High Court has laid down abrogated, No 1; and No 2, to have a direction in accordance with the Edwards Case where the matter of lies are relied upon for a purpose that goes beyond credibility and goes to a fundamental issue in the case vis-a-vis consciousness of guilt. 

In relation to the third point, that is the question of the obligation a trial judge has to properly direct a jury in the issue of both provocation and self defence, where matters raised on behalf of an accused go to questions that have been noted under the rubric or the title “battered woman’s syndrome” or, as some prefer it in academic writing, “battered woman reality”.  The fourth goes to the matter that the Court itself raised in its wish expressed yesterday, and we will deal with that, the inconsistency in the verdicts.  The fifth goes to aggregate of errors and the proviso. 

On the matter of Robinson, if the Court pleases, in this case his Honour made reference in his directions to the jury to the motive that may exist for the two accused persons because they were the accused persons.

GAUDRON J:   But did he not then say to treat them like any other witness?

MS SCUTT:   He did say that, yes, your Honour.  However, we say that when one looks at Robinson and the subsequent cases, that what the High Court said very clearly was that it was only in the exceptional case that a comment should be made about motive or interest.  We say that the fact that he subsequently referred to their evidence to be treated as the evidence of other witnesses, first, what he actually said was, perhaps - he used the word “perhaps”, No 1.  But even more importantly than that, had he not said the word “perhaps”, had he just said straightly, “Treat their evidence as you would treat other witnesses.”, it was too late, we say.  The only comment that can be made in accordance with the Robinson rule is that persons who are accused are innocent until they are found guilty.  We say that the Robinson rule should be properly applied.  We say that this is a point that the High Court, with respect, ought to take up on appeal.

McHUGH J:   Why, Ms Scutt?

MS SCUTT:   Because it is a matter, first ‑ ‑ ‑

McHUGH J:   It is a question of fact.  This Court does not sit as a court of criminal appeal.  It sits to decide important questions of law.  The Robinson point has been decided.  It is a question of its application.  I would have thought that you would be concentrating on other points in this case instead of putting this point in the forefront of your argument.

MS SCUTT:   If that is as your Honour wishes.  However, I would persist in saying that it is a matter of law.  It ought to have been dealt with properly.  There is confusion in appellate courts below and therefore the High Court should make a determination to clear up that confusion.

GAUDRON J:   Was any redirection sought at the trial?

MS SCUTT:   We say, your Honour, that a redirection is not necessary if there is an error.  But I will take Justice McHugh’s tip and move on to the next point which goes to the matter of lies in Edwards.  In this case, true it is that at page 1625 of the transcript his Honour referred to the matter of lies and said:

The lies you have referred to are just credibility lies.

And my learned friend Mr Morgan-Payler said “Yes”.  We say, saying it does not make it so.  Throughout this case there was reference to a cover-up; a constant reference to a cover-up that went to the lies Ms Osland told after her husband had been killed and she covered up by putting him forward as a missing person, making reports to police and so on.  We say that the quality of that lie and the challenges that were made by the prosecution in relation to it went way beyond a question of credibility.  It went to a fundamental issue in the case, that is her consciousness of guilt.  In those circumstances, vis-a-vis Edwards, there ought to have been a proper direction to the jury by the trial judge as to the fact that there could be innocent reasons for her having told that lie.  That is our Edwards point which, again, we say is a proper point to bring before this Court, as, with respect, we persist with Robinson, because they both go to a fundamental of law and they affect accused persons way beyond the position of Ms Osland.

With relation to the third point ‑ ‑ ‑

GAUDRON J:   If you be right in that, would it not have been necessary for the trial judge to instruct the jury that they could be used to establish the applicant’s guilt.

MS SCUTT:   He made no direction whatsoever in relation to lies.

GAUDRON J:   No, but if you concede that they go to that point, he could have directed them to the contrary.

MS SCUTT:   We say, your Honour, that in the context of this case and the way that the trial was run, it was very clear that what was being put was that Ms Osland was a witness, first, of untruth and, secondly, somebody who had engaged in cover-up.  We say in those circumstances there was an obligation to point out that the cover-up could go to an innocent meaning or motive, rather than to one of consciousness of guilt of murder.  The problem here was yes, she did have a consciousness of killing.  She was conscious that she and David Albion had killed Mr Osland.  However, she did not murder the man, and there is a very big difference between killing and unlawful killing.  That, of course, we recognise as the difficulty in one sense in this case going to lies, but it is the impact of the lies, the quality of the lies and the constant stress by the prosecution throughout the course of the trial on the lies that were told by her, or allegations of lies that were being told by her; for example, allegations that she was telling lies about having been a beaten person and so on.

But if I may move to the next point which is the point as to self defence and provocation.  We say this, that it is not sufficient for a trial judge to allow provocation and self defence to go to a jury ‑ ‑ ‑

GUMMOW J:   It is two points, is it not?

MS SCUTT:   It is, your Honour.  However, the point that we make in relation to this is, in one sense, at this point one, and it is this, that a trial judge has an obligation to properly direct a jury as to self defence and to provocation in the context of the battered woman syndrome or the battered woman reality.  That was not done.

GAUDRON J:   Why does the obligation extend beyond the facts in the case?  It surely cannot extend beyond the facts.

MS SCUTT:   It certainly does not extend beyond the facts, no, we would agree, your Honour.  However, if the Court has reference to the Canadian case of Lavelle, for example, that case of course was about whether expert evidence could be admitted into the court on a matter such as this or not.  However, we would refer the Court to it for this reason.  What the court said there was that this evidence has to be explained to the jury as to its relevance to self defence and provocation and his Honour, with respect, patently did not do that.  He simply talked about battered woman syndrome and then he talked about self defence, but he did not link the two and explain to the jury their meaning in the context of self defence or provocation.

McHUGH J:   Was any direction sought?

MS SCUTT:   Your Honour, again I would say, no ‑ I am sorry, there were in fact directions sought in relation to provocation and this comes to the short point that I do not want to belabour about the could, would, might and so on.  I refer the Court to Green where, at page 21, it was made very clear by this Court that the word to be used is “could”, not “would”, not “might”.  His Honour used those words interchangeably and though one could say that he corrected it, again, we say a correction does not take back what was an error in terms of his summation or direction as to provocation.  But the other point here, we would say, and the reason that we have put before the Court the case of Masciantonio and an extract from your Honour Justice McHugh’s judgment - and then also ‑ ‑ ‑

McHUGH J:   That was a dissenting judgment.

MS SCUTT:   We realise that.  But we have put it in for the reason that your Honour talked about the principle of equality.  The other two cases that we have referred to there, Kruger and Leeth, also refer to the principle of equality.  Now, we would say that it is trite law indeed to say that the common law ought to operate in accordance with the principle of equality.  But it really has to be said that that is the principle under which this law of self defence, in the context of the battered woman syndrome or the battered woman reality, has to be seen.  The problem is that, as we have said in our grounds and our submissions, around this country there have been a number of cases where this issue, both in the context of self defence and in the context of provocation, has been raised.  It is evident that there is disquiet, one might say, in the general community, in the legal academic community, in the jurisprudential community, and we also say that within the judiciary there is, with the greatest of respect, not a sufficiently full appreciation of the way that that issue of battered woman reality or battered woman syndrome relates to the defences of self defence and provocation.

May I say this:  this Court was ready to entertain the case of Green where, in a number of instances, persons had put forward a defence based on the issue of having had a homosexual advance made to them.  That was because, as I would understand it, a number of those cases had come up.  It had, in a sense, been creating some sort of difficulty and this Court saw it as its duty to clear up that difficulty.

McHUGH J:   I do not think that is a proper characterisation of the reasons that the Court granted special leave or allowed the appeal in that case.

MS SCUTT:   I would defer to your Honour’s better judgment in that than mine, but what I would say then, to come back to this, is that there is disquiet within the community and it is the role of this Court to set down a succinct and, at the same time, comprehensive indication to courts below as to how this defence may properly be constructed in a direction.

GAUDRON J:   What is the direction that you propose in both cases?

MS SCUTT:   Your Honour, we have set out in our arguments a full argument about this issue and rather than ‑ ‑ ‑

GAUDRON J:   No, what is the direction?

MS SCUTT:   I would trust that the High Court would come up with ‑ ‑ ‑

McHUGH J:   That is just exactly what ‑ ‑ ‑

MS SCUTT:   Okay, fine, it is just that I am conscious of the time and I do want to move to the point the High Court itself raised, but if the High Court wishes me to deal with this, I will.

GAUDRON J:   The High Court has not itself raised it.  We just wish to know if you rely on it.

MS SCUTT:   Your wishes, with respect, thank you. 

McHUGH J:   But what we want from you is to know what is the precise direction that should be applied in this type of case.

MS SCUTT:   I understand that and I will proceed.

GUMMOW J:   Assuming there is a type.

MS SCUTT:   That is actually, if I may say with respect, an interesting point because what we say is that the ordinary law of self defence does not have to be changed one iota in order to properly accommodate this set of circumstances as self defence or to accommodate it as provocation.  We favour self defence ‑ ‑ ‑

McHUGH J:   Once you make that statement your special leave application in going out backwards because it just simply means it is a question of the application of a settled principle of law to each set of facts.

MS SCUTT:   Your Honour, if I may say this then.  What we say is that the law has not been articulated - the law of self defence and provocation has not yet been articulated in a way that can clearly accommodate this set of circumstances so that judges are benefited by an indication as to the way that they may proceed in direction.  Your Honours were asking me what ought to be said.

GAUDRON J:   What should have been said in this case that was not said, that is what you have to focus on.

MS SCUTT:   Yes, and in generality too, I would accept, because there are not very many, but there are other accused persons that have come up in this situation and, unfortunately, will come up in the future.  We say that there are three ways in which self defence rules can be applied in a case such as this.  His Honour related it only to the notion in fact that there had to be some readily discrete, discernible act of violence, threat or aggression against which the accused was acting in order to defend her or himself.  We say that is wrong and we say that an alternative way of looking at these circumstances can be accommodated, too, by the law of self defence.  There is no rule in the law of self defence, we say, that precludes the case from being put on the basis, in this instance, three ways:  first, there was an act of aggression.  That was testified to by David Albion and it involved an act of aggression against Heather Osland.  That evidence stands for him and for her if the jury believes it.  That was the instance where ‑ ‑ ‑

McHUGH J:   They do not have to believe it.

MS SCUTT:   Have a doubt, yes, that is right.  That was the instance where David Albion said he came in, he saw Mr Osland attacking Ms Osland and he went in to assist.  That is, if one wants a discrete act of violence or threat against which the act of self defence is carried out, we say that is it.  We say also, however, that there can be a different way that self defence can be construction or formulated in this context.  One of them is, for example, that there can be a history of violence which extends over an extended period and which, in and of itself, can constitute the threat or aggression or the set of circumstances against which the accused is reacting in order to save her own life.

If one looks at the Lavelle Case, that is made very clear in that case, that there are different ways that one can construct or can apply the law of self defence or of provocation.  If I go to provocation again, there is this issue about the triggering and immediate impact question.  That has been put forward as the rule that enables cases that are not worthy of having provocation applied to them being removed from the system and therefore people not being able to get away with going overboard, if I can put it in those colloquial terms.  We say that the rule that governs that is the ordinary person test and that the ordinary person test is the one which sorts out those cases which are not worthy to be regarded as provocation cases.

McHUGH J:   But apart from my judgment in Masciantonio, do not Stingle and the majority Judges in Masciantonio proceed on the basis that there must be a wrongful act or insult?

MS SCUTT:   We say, your Honour, that ‑ ‑ ‑

McHUGH J:   I adopted the reasoning in Chhay in the New South Wales Court of Criminal Appeal in this area of provocation and I said that there did not have to be this explosive incident, but the other judgments do not act on that basis.  They are not necessarily inconsistent with it, but they seem to assume that there must be a triggering incident.

MS SCUTT:   That is one of the reasons why we say that this Court ought to deal with this issue in the context of the facts of this case.  As a matter of law, it ought to deal with it because these cases are not ‑ ‑ ‑

GAUDRON J:   But you still do not say what it was that should have been said in this case by the trial judge that was not.

MS SCUTT:   We say that in relation to the provocation issue in this case it could have been put, as I have said, for self defence in one of three ways:  the instant act, and that was again the David Albion evidence as to that instant act of aggression.

GAUDRON J:   But both these issues were left to the jury.

MS SCUTT:   They were left to the jury, your Honour, but that really, with respect, is not the point that is being made here.  The point that is being made here is what is the quality or the nature or the way in which they are left to the jury.  It is no good simply leaving them to the jury and saying “Go for it” colloquially ‑ ‑ ‑

GAUDRON J:   This is the third time, Ms Scutt, how do you say they should have been left to the jury in this case?

MS SCUTT:   They should have been left to the jury with the evidence being put in the context of both self defence and provocation and I would refer the Court to our submissions.  I would like to move quickly to the point that the Court wished us to address, the one about the ‑ ‑ ‑

GAUDRON J:   We do not wish you to address it; we wish to know if you take the point.

MS SCUTT:   Well, I wish to address it.  In fact, I have an application for leave to amend that has been faxed to the Court, but I can hand up an original if the Court wishes to have that.

McHUGH J:   I think we have copies.

MS SCUTT:   Thank you.

GAUDRON J:   Is that objected to, Mr Morgan-Payler?

MR MORGAN-PAYLER:   No, it is not, your Honour.

GAUDRON J:   It is not objected to, Ms Scutt.

MS SCUTT:   We say this, that the fact that David Albion was left with, in colloquial terms again, a hung jury and Ms Osland was convicted, it renders her conviction so unsafe and unsatisfactory that it ought to be set aside.  We say that for this reason:  the Crown proceeded ‑ ‑ ‑

GUMMOW J:   That is not the question.

GAUDRON J:   That is not the question. 

MS SCUTT:   But if you would allow me to continue with what ‑ ‑ ‑

McHUGH J:   You used the words “unsafe and unsatisfactory”.

MS SCUTT:   I am sorry.

GUMMOW J:   You have missed the point.  It is a good point.  It is a knock-out point.  It is not a discretionary point.

MS SCUTT:   I am sorry, if I may proceed with it, your Honour, and I am indebted to your Honour.  Thank you.  In this case, first, the Crown proceeded on the basis of a common purpose and design.  These two people acted together, according to the Crown, with premeditation as to the murder.  When they did that, the material before the court ought to have led properly to a hung jury for both of them, to a conviction for both of them, or to an acquittal for both of them.  The fact that -

GAUDRON J:   That is not necessarily so.  It may have led to, on one view, a conviction of David Albion without leading to a conviction of Ms Osland.

MS SCUTT:   True, I agree.  He was the one that wielded the bar.  The point is that we have put cases before the Court and I see that my time is up so I ‑ ‑ ‑

McHUGH J:   I know that your time is up, but just on this last point.  This point that the Court has raised with you, it is not a point that has been taken below at any stage.  What do you say about that?

MS SCUTT:   We say that it is such a fundamental point that it ought properly to be taken by the High Court.  The fact that it was not raised below ought not to preclude the High Court from taking it.  In fact, the High Court should simply take this point because it is fundamental ‑ ‑ ‑

McHUGH J:   I do not think we take points.

MS SCUTT:   I am sorry, we bring the point to you and say that it is, with respect, an appropriate point for the High Court ‑ ‑ ‑

GAUDRON J:   A point, is it not, which, if good, could have been taken under the old writ of error, did not have to be taken.

McHUGH J:   Does the writ of error still exist in Victoria?  I suppose you probably do not ‑ ‑ ‑

MS SCUTT:   I actually do not know, I am sorry.  I cannot assist the Court on that.

McHUGH J:   It still exists in South Australia, I know.

MS SCUTT:   My learned instructor says no, it does not exist in Victoria.  So we are left in the hands of your Honours.  Thank you.

GAUDRON J:   Thank you.  Yes, Mr Morgan-Payler.

MR MORGAN-PAYLER:   If the Court pleases, might we start with the last point first.  If it assists the Court, might we hand a brief outline of the respondent’s submissions in respect of that point.  I think I can briefly run through them, might be the most convenient way of ‑ ‑ ‑

GAUDRON J:   Do you have a copy for Ms Scutt?

MR MORGAN-PAYLER:   Yes, we have already provided the applicant with copies.

Had the Crown case been put on the basis that this applicant was an accessory before the fact to David Albion, the principal offender, then some argument might arise, it is submitted.  That was not the case and it is made clear, I think, at pages 286 to 288 in the appeal book of the charge.  It was simply put, and always maintained, as a case of acting in concert.  The Crown case, unlike in ‑ ‑ ‑

GAUDRON J:   What difference does that make?  I mean, does it take it into the area of conspiracy?  I think not.

MR MORGAN-PAYLER:   No, it does not, your Honour, but it removes it from the rather interesting debate as to whether an accessory before the fact can be convicted ‑ ‑ ‑

GAUDRON J:   Why are people acting in concert not, in fact, accessories to the principal in the first degree?

MR MORGAN-PAYLER:   They may well be, your Honour, but they are presented ‑ ‑ ‑

GAUDRON J:   Is that not the correct legal analysis of their position vis‑a‑vis each other?

MR MORGAN-PAYLER:   Yes, it may be, your Honour, but it is clear ‑ and I think King v The Queen makes it clear that when the case is pressed as acting in concert they are liable jointly and severally.  Now, there may still be difficulties ‑ ‑ ‑

GAUDRON J:   Jointly and severally?

MR MORGAN-PAYLER:   Yes.  In other words, it is quite open to a jury to acquit one accused who has been presented as acting in concert with another accused, when both are presented as principal offenders.

McHUGH J:   It depends on what evidence is admissible against ‑ ‑ ‑

MR MORGAN-PAYLER:   The final point of our outline makes the point that it should depend entirely upon the evidence.  In our submission ‑ ‑ ‑

GAUDRON J:   The evidence here is ‑ ‑ ‑

MR MORGAN-PAYLER:   Significantly different.

GAUDRON J:   The evidence here, as I understand it, is uncontroverted, that Ms Osland did not perform the act which caused death.

MR MORGAN-PAYLER:   She did not strike the blow that probably caused the death, your Honour, no.

GAUDRON J:   Not “that probably caused the death”, was not the Crown case at all times put on the basis that the act causing death was committed by David Albion?

GUMMOW J:   With the pipe.

MR MORGAN-PAYLER:   The Crown case was put at all times that the two accused, acting in accordance with a pre-concerted plan, murdered the deceased.

McHUGH J:   Let it be assumed in your favour that David Albion had a defence of self defence open to him and she did not, if as a result of that defence the jury find that he did not kill so as to be guilty of murder, how could she be convicted of murder?

MR MORGAN-PAYLER:   He did not kill her, your Honour, or he was not guilty of murder?

McHUGH J:   That he was not guilty of murder.

MR MORGAN-PAYLER:   That he was not guilty of murder, because he had still completed the necessary actus reus.  It is quite analogous, in our submission, to the situation in Matusevich where, subsequently, the co-offender was found to have been legally insane at the time.  This Court there said, again depending on the evidence, the simple acquittal of the co‑offender does not necessarily mean that the other accused must have been acquitted.  It would depend upon the evidence as to whether the insane co‑offender was capable of entering into an agreement and a number of other matters.  I think Matusevich is before the Court and we commend that to the Court, really, in answer to this question.

GAUDRON J:   Do you have a reference to that?

MR MORGAN-PAYLER:   Yes, your Honour.

GAUDRON J:   It is in your materials, is it?

MR MORGAN-PAYLER:   It is.  I sincerely hope it is in - I apologise to the Court.  I was under the impression that a photocopy of Matusevich was before the Court.  I will ensure that that is done whilst argument is proceeding.  It is submitted that the very simple answer to this question, in any event, is that the jury in this trial had separate evidence to consider in respect of each accused and if we might ‑ ‑ ‑

GAUDRON J:   But no evidence that Ms Osland did an act - did the act causing death?

MR MORGAN-PAYLER:   No, your Honour.  The highest ‑ ‑ ‑

GAUDRON J:   You have a problem on that, have you not?

MR MORGAN-PAYLER:   With respect, no, your Honour.  The highest the evidence was that this applicant held the deceased at the time that her co‑accused struck him the fatal blow.

GAUDRON J:   That makes her an accessory.

MR MORGAN-PAYLER:   That this accused had, first of all ‑ ‑ ‑

GAUDRON J:   This makes her an accessory if there is a crime.

MR MORGAN-PAYLER:   Indeed.  And there is clearly a crime ‑ ‑ ‑

GAUDRON J:   There is only one crime said to be committed by two people.  It is not two crimes.

MR MORGAN-PAYLER:   Yes.  But if the jury find that one of those persons acted with lawful justification and excuse, that is not a bar to the first of those persons being convicted and, indeed, the jury - provocation is a very simply example - if the jury acquit the other accused on the basis of provocation, they have firstly found, in effect, all of the elements of murder to be made out.

GAUDRON J:   Yes, but that is not this case.  It would not be an acquittal on the grounds of provocation, it would be reduced to manslaughter.

MR MORGAN-PAYLER:   No, your Honour, it is ‑ ‑ ‑

GAUDRON J:   If Mr Albion had been convicted of manslaughter, that might be one thing.

MR MORGAN-PAYLER:   In this trial the Crown simply did not prove David Albion had committed murder.  David Albion advanced solely ‑ the only answers he proffered were, firstly, that he was acting in lawful self defence and, secondly, that is in the alternative, that his actions were lawfully justified and, indeed, through their counsel, each accused at the commencement of the trial admitted their involvement in the killing.  In those circumstances, where the jury’s sole question is assessing whether the Crown have disproved the necessary mental state in respect of either accused, in respect of either lawful justification or excuse, then there can be, there need be no logical inconsistency between verdicts of acquittal and conviction.  Indeed, it happens every day, in our submission.

GAUDRON J:   Have you any authority for a case in which a person who did not cause the act, did not do the act causing death, has been convicted for murder when the person who did the act causing death has not been convicted of any offence or where the jury has not been instructed that before finding the former guilty, they must be satisfied that the other did the act causing death and in fact committed murder?

MR MORGAN-PAYLER:   No, your Honour, because in my submission, in the circumstances of this case, the case was put that the killing was in response to an agreement that was carried out between the parties.  The jury was told that they were separate trials and the jury was told that they must examine the evidence admissible as against each accused.

GAUDRON J:   I know they were, but that might be the error itself, might it not?

MR MORGAN-PAYLER:   No, your Honour, because I think even ‑ ‑ ‑

McHUGH J:   They were tried on a single count of murder, were they not, in the presentment?

MR MORGAN-PAYLER:   A single count of murder, your Honour, yes, with no other count.  Even in Darby’s Case which, of course, deals with conspiracy, but we would submit the principle is the same, the Court there made the point that it will depend case to case on the evidence and, of course, if the evidence is identical, then there may be problems about differing verdicts.  Each of these accuseds was presented, your Honour, as a principal offender and, indeed, in Victoria an accessory before the fact by virtue of section 323 of the Crimes Act is triable and liable as a principal offender.  That section reads:

A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender

McHUGH J:   So what is your case:  that, in effect, he is her agent for the purpose of striking the blow?

MR MORGAN-PAYLER:   Yes, just party to the agreement and, I stand to be corrected, I think the Crown said at one stage to the jury, it matters not who did what, as long as the actions were carried out in accordance with the agreement.  The Crown in this case ‑ ‑ ‑

McHUGH J:   And that he can justify his act on the basis of self defence, whereas she could not.

MR MORGAN-PAYLER:   Yes.  Clearly, at the end of the day ‑ ‑ ‑

McHUGH J:   At least it was open to the jury to take that view.

MR MORGAN-PAYLER:   Clearly, at the end of the day, he either justified his actions on the grounds of self defence or the verdict was one of those of the type referred to in McKenzie last year by this Court.

McHUGH J:   What, a merciful verdict of not guilty?

MR MORGAN-PAYLER:   A merciful verdict, yes.  What we do submit, however, is that in this case, on this trial, the evidence was substantially different and if it assists the Court I will take the Court to it briefly.  I have made references in that outline to the references in the Court of Appeal.  The Court now has the transcript of David Albion’s evidence in-chief and if it assists the Court, at page 1469 in-chief a brief passage - I will not trouble the Court with all that leads up to it:

He just let Mum go and turned around and he started yelling at me to “get the fuck out of the house”, and I said I wasn’t going anywhere without Mum, and he said:  “She’s staying here and you’re fucking leaving’, and I said:  “I’m not going anywhere, I’m staying”, and then that was it, he just came at me and he said:  “I’m going to fucking kill you”, and he hit me right in the side of the head.

Subsequently, as to provocation ‑ ‑ ‑

GAUDRON J:   Would that still not leave open, even on your theory which is subject to a few fundamental legal issues - would that still not leave open the question whether or not, in doing it, he was in fact acting in accordance with the agreement.

MR MORGAN-PAYLER:   Yes, it would, your Honour, but it is a piece of evidence that fairly and squarely raises ‑ ‑ ‑

GAUDRON J:   But if he was not then acting in accordance with the agreement, how do you bring Ms Osland within - how do you establish the case against Ms Osland?

MR MORGAN-PAYLER:   We put that forward as evidence given by him of, firstly, a threat to kill and then a physical assault from the deceased directed towards David Albion, a circumstance which it would have been open to the jury to form the view that may have given rise or given occasion for self defence.  The significance is that the applicant gave no evidence at all of that incident and the applicant did not cross-examine David Albion concerning that incident.  Furthermore, it was not opened by the applicant ‑ by counsel on her behalf.  In those circumstances, it is submitted it is very reasonable to assume that that incident ‑ ‑ ‑

GAUDRON J:   But that still would leave open a question on which there would have to ‑ if he was not then acting in accordance with the agreement, then what happens, the agreement is frustrated, it does not lead to a conviction, surely?

MR MORGAN-PAYLER:   No, your Honour, that is evidence concerning the deceased’s actions towards David Albion.  That is simply evidence ‑ ‑ ‑

GAUDRON J:   But would it not be the case that to convict Ms Osland the jury would have had to be satisfied beyond reasonable doubt that David Albion was, when he struck the fatal blow, acting pursuant to the agreement which the Crown alleged had been struck earlier in the day?

MR MORGAN-PAYLER:   Firstly, there is no reason why he cannot be doing both, your Honour.

McHUGH J:   That is so, but what Justice Gaudron has just put to you raises, to me, what may be a more fundamental question in this, and that is whether or not the summing up may not be fundamentally flawed because these various factual scenarios really were not dealt with.  In one sense, he had a case on his own, having regard to that passage you have just put at 1469 ‑ ‑ ‑

MR MORGAN-PAYLER:   And another passage that related to provocation, your Honour, that fairly raised it in his trial and there was none from the applicant.

McHUGH J:   So if the jury thought in terms of his case along the lines of what is there at I think 1469 of the transcript, it may well have, as Justice Gaudron said, rendered the whole idea of concert irrelevant for the purposes of legal liability; that his act killing him was not, on one view, the product of the agreement but the product of his own fear for his own safety.

GAUDRON J:   The case seems to have been so much focused on battered wife syndrome that the fundamental legal issues went out the window.

MR MORGAN-PAYLER:   Certainly from one end of the Bar table, your Honour, but what is submitted is that if this applicant was acting in accordance ‑ ‑ ‑

GUMMOW J:   You have to say the common purpose is to perform the act and the respective criminality in relation to that act may differ.  It does not matter.

MR MORGAN-PAYLER:   Yes, your Honour, it does not matter, just as in Darby.  The fact that it was subsequently ‑ ‑ ‑

GAUDRON J:   That is a fairly important issue.

McHUGH J:   I know, but accepting that is so, it still seems to me that this issue of his defence needed to be separated, not only for the purpose of self defence, but also for the purpose as to what was the relevant actus reus, because the Crown were relying on his act of causing death as the foundation of liability for both of them.  What I have just been putting to you is that it is possible, on one view of the facts, that if his defence of self defence was good, that it may not necessarily have been the product of the agreement but the product of his attempt to defend himself for his own fear.  It is not, in one sense, a realistic view, but on the other hand, having regard to the jury’s verdict, maybe that is the way they reasoned.

MR MORGAN-PAYLER:   The Crown would say that the jury no doubt had some material with which to consider lawful justification and excuse in as far as David Albion was concerned.  It had very little in sharp distinction ‑ ‑ ‑

McHUGH J:   Looking at the pure merits of the case one could understand why they might well accept his version and not accept hers.  There were the tapes in which she indicated, if I remember rightly, that she had not been assaulted for three years, the grave had been dug beforehand.

MR MORGAN-PAYLER:   The judge certainly identified the cases as against each because there were significant differences in evidence.  For example, there was an interview of the applicant; David Albion declined to answer questions.  Some of the tapes that were admitted into evidence were admissible only against one or the other and the judge, again, carefully identified those.  He also told them that they were separate trials.  The evidence given by David Albion, of course, was common evidence within the trial.  The Crown’s submission here is that quite obviously when one considers it, the fact that David Albion gives evidence of circumstances that might well give rise to at least raising a doubt on the questions of self defence and provocation, and this applicant neither gives evidence of those incidents nor raises them in cross-examination, then it is reasonable to assume that the jury regarded her as being ignorant of them.

As to the principal point, the Crown simply says providing this applicant is still acting in accordance with the agreement as she perceives it, whether through some lawful justification or excuse or, indeed, whether through the subsequent sudden visitation of, for example, an insanity, the co-offender no longer commits the crime of murder although carries out the killing, then that matters not.  Similarly, if the jury were simply of a view that the evidence was not, in this case, for example, of the ‑ ‑ ‑

GAUDRON J:   Do you equate acting in concert with conspiracy?

MR MORGAN-PAYLER:   For all practical purposes, yes, because ‑ ‑ ‑

GAUDRON J:   Is there any authority to that effect?

MR MORGAN-PAYLER:   No.

GUMMOW J:   That is a big proposition then.

MR MORGAN-PAYLER:   But if one reads Darby and if one reads The Queen v King the general principle ‑ ‑ ‑

GAUDRON J:   It is a big question.  It is an important legal question, is it not?

MR MORGAN-PAYLER:   Yes, indeed, your Honour.  The general principles are the same.  It is a question of ‑ ‑ ‑

McHUGH J:   It has always been refined in terms of agency, as has conspiracy, but if there is no authority on it, then it is a point that needs to be examined.  But before your time expires, can I raise a question which is raised in the applicant’s written submissions but was not raised in the oral argument today, and that is whether the trial may have miscarried by reason of the fact that evidence was admitted that the applicant had spoken about killing her son who had given them up, in effect, to the police, or at least indirectly.  Now, how was that evidence relevant on this trial?  It is highly prejudicial that she should be talking about killing her own son some years after the death of her husband.  How was it admissible?

MR MORGAN-PAYLER:   That was advanced, your Honour, as evidence being quite inconsistent with a killing that had taken place either with lawful justification or excuse, of an endeavour to either prevent a potential witness from giving evidence or to obtain his change of evidence.  As simple as that.  The Crown said that material is quite inconsistent with the defences advanced by the applicant.  It is to be noted there was also unacceptable evidence ‑ ‑ ‑

McHUGH J:   The way the Crown sought to rely on it was to say that the fact that she was in a telephone conversation some years later in which she was going to kill her son for making this - or said she contemplated or it was on the cards or whatever it was that was said - is somehow evidence that they murdered the husband.

MR MORGAN-PAYLER:   Yes, murder in distinction from a killing that had either lawful justification or excuse.  That is the way it was advanced, your Honour.  I see my time has expired so I ought to resume my seat and I have not had the opportunity of addressing the other matters raised by ‑ ‑ ‑

GAUDRON J:   I think we will give you an extension, but as briefly and succinctly as you can.

MR MORGAN-PAYLER:   In respect of the provocation and self defence point, it is submitted indeed that when one looks at the charge, the matter went to the jury just exactly in the manner that our learned friends appear to be contending for now.  The Court will have noticed that the directions, for example, on provocation were overly favourable to the applicant in that his Honour, without too much protest from the Crown, told them that the ordinary person in those circumstances was a woman of her age who had been subjected to the abuse that they found that this applicant had been subjected to, for example.  Similarly his Honour was careful to point out that the provocative act might be something comparatively minor, on the straw that broke the camel’s back line of argument. 

It is significant that a lot of ‑ certainly in front of the Court of Appeal in this matter - many of the submissions based on Chhay seemed to ignore the fact that, of course, the law is somewhat differed and codified in New South Wales and I think, indeed, the Court has in front of it, on behalf of the respondent, the second reading speech which makes it clear that one of the intentions of the amendment to section 23 was, in 1988, to remove any need for a nexus or a sudden and temporary loss of control in immediate response to a provocative act.

Similarly, the very fact that his Honour left self defence in circumstances where the deceased was already comatose of itself indicates that, again, he left self defence quite generously, in our submission, and generally in the manner which has now been contended for.  It is submitted and it was contended that there ought to be any further alteration to the law, then clearly that is a matter for Parliament.

McHUGH J:   But it may well be the case that the appeal may eventually fail, but does not the application raise some important questions of law?

MR MORGAN-PAYLER:   On the provocation and self defence ‑ ‑ ‑

McHUGH J:   Yes, on that, and on the inconsistent verdicts point, on the lies point.  Are there not a lot of things in this case that really make it a case that this Court should have a look at?

MR MORGAN-PAYLER:   A lot of matters of general importance, your Honour.  On the inconsistent verdict point, the Court is either with us or is not impressed by the submissions that we have put today.

McHUGH J:   There is much to be said for both sides of that argument.

MR MORGAN-PAYLER:   As to the self defence and provocation point, the simple submission is that the law is quite settled and this is a good demonstration - this case is an excellent example of the fact that the law can accommodate such circumstances as these.  The difficulty that the applicant faces is that the jury rejected her evidence, quite simply, or that her evidence - her circumstances simply did not go far enough.  That is all, in our submission, that is unusual about this case.

In respect to the Robinson point and the lies point, the respondent relies very heavily ‑ ‑ ‑

McHUGH J:   The Robinson point is the one point that does not impress me.

MR MORGAN-PAYLER:   His Honour corrected - his Honour took it away.  Clearly it might have been better if he had not made the original comment, but then he came back and said, “Perhaps it would be better if you dealt with them just like you would deal with any other witness.”  As to the lies point, might we stress that this applicant was represented by leading and junior counsel, two counsel both experienced in the criminal law.  It may well be, in a case of this nature, if one was acting for this applicant, the very less said about lies to this jury the better.  One endures a prosecution final address which refers to them to some extent.  The less said by the judge, the better; quite a rational reason for not seeking a direction and, indeed, as I think has been pointed out in argument, if any direction had been sought it may well have been that the Crown would have identified those lies which were capable of being used as consciousness of guilt and sought to rely upon them.

McHUGH J:   Yes, I know, but the fact that she told so many lies is perhaps the reason why the jury needed to be carefully instructed on the issue because it was common ground that she had told these lies, or at least most of them.  The real question is why did she tell them?

MR MORGAN-PAYLER:   Does your Honour feel a question of some general importance being whether ‑ ‑ ‑

McHUGH J:   No, but in the context of this case with other issues, but on its own it may not be something that one would want to look at.  If you were going to look at the question of inconsistent verdicts, the question of provocation, the question of self defence, then why would you not take the lies issue on as well?

MR MORGAN-PAYLER:   Because it would just extend the debate a little bit further, your Honour, is the only real argument.  The real question, I suppose, is whether every time lies are relied upon by the Crown, no matter how, there ought to be a direction.

McHUGH J:   We said in Edwards that it does not have to be.

MR MORGAN-PAYLER:   Indeed.  It is a matter whether Edwards is to be revisited or whether this is really just a matter of degree and it may ‑ ‑ ‑

GAUDRON J:   It may perhaps depend on the evidence in this case, the particular circumstances.

MR MORGAN-PAYLER:   And if that be the case, in our submission it is not a question of general importance.  The law is clear; it is simply the application of the law.

GAUDRON J:   Mr Morgan-Payler, before you resume your seat, it occurs to me that if you be correct on your proposition with respect to inconsistent verdicts, there is still an argument open to the applicant that in the circumstances the verdict is unsafe and unsatisfactory.

MR MORGAN-PAYLER:   We have endeavoured to deal with that in our outline by pointing to the different pieces of evidence that were applicable in each case which might explain such a verdict and, indeed ‑ ‑ ‑

GAUDRON J:   But it may also mean that if leave were granted, the grounds might be somewhat wider than presently formulated.

MR MORGAN-PAYLER:   I had hoped they might be narrower, your Honour, if leave were to be granted.  In our submission ‑ ‑ ‑

GAUDRON J:   You have dealt with that issue.

MR MORGAN-PAYLER:   We hope we have dealt with it in our written submissions, your Honour, yes.  Simply in this case there is different evidence that one can point to, so one cannot say that faced with identical evidence a jury puzzlingly came to different verdicts, and then the Crown, of course, would be relying on this Court’s comments in McKenzie, saying there can be merciful verdicts and that may well be something that could be contended for in this case because I think there are a number of people on the applicant’s side of things here - there was quite a well of sympathy from all sides for the accused David Albion at the trial of this matter.

I am reminded - before resuming my seat, Matusevich (1977) 137 CLR at page 633.

GAUDRON J:   Thank you, Mr Morgan-Payler.  Yes, Ms Scutt.

MS SCUTT:   Very briefly, your Honours.  On the matter that Justice McHugh raised as to the tape that related to the knocking of Paul, we say it was absolutely irrelevant.  It ought not ever to have been allowed in and if it was irrelevant, it was so highly prejudicial that it ought not to have been allowed in.  Ironically, one might say, that had Ms Osland gone ahead, had that threat been real and had she gone ahead and got some hitman to do the job, the evidence would never have been allowed in as similar fact evidence, had she gone on trial for the alleged murder of Frank Osland.

But, more particularly, on the issue that the Court has wished us to address, may I reply to my learned friend and say that on every fundamental particular in terms of the evidence, the cases for David Osland and Heather Osland were identical and if they were different in any way, it was that the evidence for Heather Osland was stronger.  Take, for example, the evidence as to sexual assaults.  There were allegations of sexual assault having been made against David Albion and he was the only one who gave evidence of that.  He had no witnesses to it.  Ms Osland had the evidence of her medical practitioner and although one might say there was possibly some equivocality about it, nonetheless it was evidence that in some ways corroborated her allegation as to continuing anal rape.

On the issue of violence throughout the marriage, there was evidence of that in relation to the two, and we say in relation to her, more of it.  In relation to the ‑ ‑ ‑

McHUGH J:   What about the tape, though, in which she said that there had been no violence in the last three years?

MS SCUTT:   We say that that is one of those issues that was perfectly explicable and it ought to have been ‑ ‑ ‑

McHUGH J:   I appreciate that, but why could not the jury have taken the view they disbelieved her, but they disbelieved the son in terms of the assault to which he deposed at 1469?

MS SCUTT:   Because, your Honour, he gave evidence that Ms Osland was battered on the night that Frank Osland was killed.  For my final point, if I may address that, my learned friend took the Court to page 1469 of the transcript.  If I can go back one paragraph to page 1468, as I understood my learned friend ‑ but I could have been misunderstanding it ‑ he put this to the Court as a proposition that David Albion had given evidence of crime of violence against him on the night that the killing occurred and that was why David Albion’s position was very different in the eyes of the jury and in the eyes of the court from that of Ms Osland.  May I read to you:

Will you tell us in your own words what happened when he got home?

David:

I was working on the ute and he came through down the driveway, through the gate, and he seen me working on the Ute and he just veered straight inside, and the next minute I heard Mum just let out a big scream and she was - a big argument was starting, and I went up,

I just dropped everything and practically raced up to the house, and when I opened up the big door  ‑ ‑ ‑

McHUGH J:   His evidence is it is all part of the same event.

MS SCUTT:   I am sorry, your Honour, but I must say that that is the introduction to where he - what my learned friend read ‑ ‑ ‑

McHUGH J:   That is what I am saying to you.  It is all part of that.

MS SCUTT:   Yes, absolutely.  And the fact that he gave the evidence in relation to the violence against her surely must stand for her if it stands for him.

McHUGH J:   Yes, I follow.

MS SCUTT:   Thank you.

GAUDRON J:   There will be a grant of special leave in this case.

AT 12.08 PM THE MATTER WAS CONCLUDED