PL v The Queen

[2010] HCATrans 254

[2010] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S98 of 2010

B e t w e e n -

PL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 9.38 AM

Copyright in the High Court of Australia

MR W.C. TERRACINI, SC:   Your Honours, I appear with my learned friend, MR J.J. TREVALLION.  (instructed by Archbold Legal Solutions)

MS D.M.L. WOODBURNE, SC:   I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Terracini.

MR TERRACINI:   This is an application for special leave and it arises out of a judgment by Justice Rothman of the New South Wales Supreme Court in a murder trial which took place in Sydney on 4 May 2009.  His Honour heard, at the close of the Crown case, a no case submission that there was no evidence upon which the jury could convict the accused of murder or manslaughter.  His Honour directed verdicts of not guilty in respect of both charges.  Pursuant to the relevant legislation permitting the Crown to appeal, they did, claiming that his Honour erred in law.  The New South Wales Court of Criminal Appeal left the murder acquittal untouched, but ordered a new trial in respect of manslaughter only.

This application for special leave is that the New South Wales Court of Criminal Appeal erred in finding that the trial judge was himself in error on a point of law, which was contained in his findings concerning the directed verdicts.  At page 48 of the application book at paragraph 50, rather than read it out verbatim, the Court of Criminal Appeal enunciates our argument ‑ ‑ ‑

HEYDON J:   I do not have the paragraph on that page.

MR TERRACINI:   It would be page 48 about – well, it is certainly the last paragraph of that page commencing with the words, your Honour, “The principal contention on the part ‑ ‑ ‑

HAYNE J:   Paragraph 55?

MR TERRACINI:   Yes.  Now, we say there that rather than going through it, that is our argument here and that was our argument then and it is correctly adumbrated by the Chief Justice of New South Wales.  We also add that his Honour, the judge at first instance, merely assessed all the relevant evidence and came to a conclusion that there was no evidence capable of satisfying a jury beyond reasonable doubt of an unlawful and dangerous act, which is an essential element of the crime for manslaughter.

The contention made by the Crown in the Court of Criminal Appeal, and made here in her written submissions, is that he erred in claiming that the Crown had to prove a specific or particular act.      What his Honour in fact did and it appears, with great respect to the Chief Justice of New South Wales, if one reads the whole of his Honour’s decision, he is plainly reaching his decision on the evidence in that case and basing his decision on the facts of that case, where he says that there was no act.  It does not change whether it is manslaughter or murder in terms of whether there was no act capable of satisfying the jury beyond reasonable doubt that he was responsible for the death.

His Honour at first instance stressed that on the evidence in this case his view was that there was no evidence capable of satisfying the jury that the accused carried out any act that was unlawful and dangerous.  Our submission is that manslaughter can only be committed in that category of manslaughter where the accused causes the act and that act, or acts, results in the death of a person, which is both unlawful and dangerous.

The reasons set out by his Honour Justice Rothman are plainly a mix of fact and law.  The Crown concedes that, but has arguments that there was an error of law alone.  The authority of Smith, the Privy Council authority that we have put on, plainly says that applications of this type – that is no case submissions – almost inherently involve mixed fact and law because there is, by the very nature of such applications, an assessment by the trial judge of all the facts in the case that the Crown says they rely on to satisfy the jury beyond reasonable doubt.

We further state in our submissions that it was within his Honour’s powers to do what he did to make such findings and that it involves a matter of significance, great significance, that this Court at least determine what can be done in these no case submissions and what are the actual issues to do with whether it is law, fact or both because of the recent legislation in many States, but specifically New South Wales, giving the power to the Crown to appeal to the relevant Court of Criminal Appeal concerning no case submissions where there are directed verdicts of acquittal.

HAYNE J:   Mr Terracini, can I just understand a little better than I do what you say about Justice Rothman’s reasons.  At application book page 14, particularly paragraph 33, do I understand his Honour to accept that the question to be determined was whether there was any evidence that could support a guilty verdict?

MR TERRACINI:   Yes.

HAYNE J:   His Honour concluded that there was “no evidence”.

MR TERRACINI:   Yes.

HAYNE J:   A question for the Court of Criminal Appeal was whether a conclusion that there is no evidence is a question of law.  Is that right?

MR TERRACINI:   In essence, yes.  Not in those precise words.  I concede that that is the general thrust of what the Crown’s contention was at the Court of Criminal Appeal. 

HAYNE J:   In the Court of Criminal Appeal a deal of emphasis was given to the medical evidence at trial that always seems to be referred to as the constellation of injuries was not such as could be explained by a fall down stairs.

MR TERRACINI:   There was much talk about whether something is consistent with or inconsistent with and a phrase which his Honour latched onto from one of the medical reports, which he described as the “mechanism of death”, but if I understand those words correctly, it is merely talking about the cause of death.  His Honour came to the view that the medical evidence was speculative and the Crown was unable to establish to the relevant standard that an act – not a specific act because we conceded at the Court of Criminal Appeal and we concede here that the Crown does not have to prove – as an example in a stabbing case or a violent assault with fists or whatever, they do not have to prove the specific blow that causes death.  The argument here is different.  What his Honour is saying is that there was no act at all that the Crown could point to that could be satisfied beyond reasonable doubt.  Thank you.

HAYNE J:   Thank you, Mr Terracini.  Ms Woodburne, we shall not trouble you.

The decision of the Court of Criminal Appeal in this matter is not attended by doubt.  Special leave to appeal is refused.

MS WOODBURNE:   May it please the Court.

AT 9.46 AM THE MATTER WAS CONCLUDED