PNJ v The Queen

[2007] HCATrans 691

[2007] HCATrans 691

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A16 of 2007

B e t w e e n -

PNJ

Applicant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 NOVEMBER 2007, AT 11.41 AM

Copyright in the High Court of Australia

MR T.A. GAME, QC:   If the Court pleases, I appear for the applicant with my learned friend, MR H.M. HEUZENROEDER.  (instructed by George Mancini & Co)

MR M.G. HINTON, QC:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (SA))

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases, the main question raised by this case is whether or not Pearce and Island Maritime mandate a different approach and a different outcome from that taken by the judge at first instance, Justice Layton, and the Court of Criminal Appeal on appeal.  In our submission, and I will come to how Justice Layton dealt with the issue, shortly, but in our submission if the approach taken by Justice Layton and the Full Court is correct then the only place, ultimately, for autrefois convict and acquit is for offences where the second offence is merely an aggravated form of the first or the second is a less aggravated form of the first.  In our submission, no such result was mandated by Island Maritime or Pearce.

In effect, the approach taken by the Court of Criminal Appeal and Justice Layton requires the comparison in abstract of the elements of the second offence compared in abstract with the elements of the first offence.   Our submission is that applying Li Wan Quai v Christie, Pearce and Island Maritime, the correct approach is to ask oneself whether or not the material, by which I mean the essential facts, required to prove the second offence, here murder, would necessarily prove the first charged offence upon which there has been a conviction, wounding with intent to do grievous bodily harm.

If your Honours turn to page 115 of the application book you will see – perhaps if I just direct your Honours’ attention to three short passages and then I will return to the example given at paragraph 17.  From paragraph 19 we take a quote from Li Wan Quai v Christie which was cited, with approval, in all of the cases, the test being:

whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first.

At the top of page 116, paragraph 21 is a statement of the test in which the correct approach is to compare - this is from Island Maritime, paragraph 30 – “the facts constituting the elements of the offence”.  Then you see at paragraph 23 a reference to a passage in Pearce.  I want to take your Honours to Pearce before returning to the example.  It is in our bundle of cases and it is the first case and I wanted to take your Honours to paragraph 20, page 617.  There is a long paragraph there.  I will not read it out but I invite your Honours’ attention to about halfway down that paragraph:

That invites attention to what must be proved . . . That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say.  It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary –

Your Honours, then the example is considered of Wemyss.  In Wemyss there are two offences which really did not have any common elements in the narrowest sense.  One was:

by negligence or wilful misbehaviour, to wit, by striking a certain horse –

by which “hurt and damage” was caused to the rider.  The second is a charge of unlawful assault.  If you turn over the page, the reason that the second prosecution could not proceed was because the fundamental or essential fact in both cases was the intentional striking of the victim’s horse.  If the Court pleases, if one returns to the example we give at page 115, paragraph 17 what we have – if for a moment one identifies the elements of wounding with intent to cause grievous bodily harm there is a wounding and there is an intention to cause grievous bodily harm.  Now, in murder there is an act done with intent to cause grievous bodily harm and it is a substantial or contributing cause to death.  The act done must be – that is to say, the essential fact in a stabbing must be the wounding of the victim.

GLEESON CJ:   What has happened in South Australia to that old requirement that the death had to occur within a year and a day?

MR GAME:   It was repealed in 1991, your Honour.  A second reading speech of that legislation discloses that what was in mind was the effect of offences involving the onset of HIV and AIDS.  That was the legislative context in which it occurred.

GLEESON CJ:   But whatever prompted them to do it, death could now occur years after the act that caused the death?

MR GAME:   Yes, your Honour, I have to accept that, but, could I say this that two of the main features that lie behind these principles are one double vexation – and I must accept there are countervailing features there – and the second the risk of inconsistent outcomes.  Now, if this accused is convicted of murder, and first you will have the acquittal of attempted murder which can be rationalised in a particular way, but if he is convicted of manslaughter, which was rejected as a possibility by Justice Mullighan, then you have an inconsistent verdict because you have had him convicted of wounding with intent to do grievous bodily harm and you have a conviction for manslaughter.

GLEESON CJ:   I saw there were some references – some rather dismissive references to what was referred to as the murder exception to something, but murder must be the classic instance of a crime that is completed or may be completed a long time after a commission of what would constitute another crime.

MR GAME:   Yes, your Honour.  That question has been raised but really put to one side in this case, and that is a question, in our submission, which would warrant a grant of special leave whether or not for a case such as that where shall we say one of the elements has not occurred, which is what your Honour has just put to me, namely, death, whether or not an exception is created in the principles for that kind of an outcome.

But, may I say this, your Honour, if the case otherwise would fall within the autrefois convict or acquit principles in Island Maritime and Pearce but was, as it were, saved by a murder exception then some very different considerations might apply in the exercise of an orderly discretion in respect of determining whether or not there was an abuse of process, for instance, the fact that the prosecuting authorities took a year and a half after the death of the victim to prosecute, or, for instance, the fact that now but not then there is a retrospective, mandatory, 20 year non‑parole period in South Australia.  So there would be other considerations.

GLEESON CJ:   The cases do recognise, do they not, that autrefois convict and autrefois acquit proceed upon rather different theoretical foundations?

MR GAME:   They do, but the actual articulation of the principles has rather assumed that convict and acquit – similar principles ‑ ‑ ‑

GLEESON CJ:   I thought this was discussed at great length in Rogers.

MR GAME:   Rogers, of course, is the case about whether or not an essential factual issue has been determined and whether or not that issue can be re‑litigated.  I am not sure that this particular question in respect of different principles applying to one or the other, but no doubt if you are moving from less serious to more serious and how you have a conviction then different principles ‑ ‑ ‑

GLEESON CJ:   Your proposition comes down to this, does it not, that if a person is alleged to have stabbed somebody with intent to cause grievous bodily harm and is then dealt with on that charge and a long time later the victim dies as a result of the stabbing the person cannot be charged with murder?

MR GAME:   That is correct, but if it is incorrect, so stated – and as I said, for two reasons, one the double vexation principle; two, as it were, the risk of inconsistent outcomes, that is to say, an outcome of manslaughter would be inconsistent, in order to avoid the inconsistency that would flow from a conviction from murder the Crown has, as it were, agreed to tailor its case, that is to say, it has agreed not to allege that the stabbing of the victim in the head was done with intent to kill.  So, it is, in effect – in this case we have both an acquittal and a conviction, both of which raise awkward problems.

In those circumstances, in my submission, where you have had both then you really do have a situation in which a person should not be put on trial for murder if the person subsequently dies.  Now, your Honours, even if in principle there is an exception for murder, this case, properly analysed, falls squarely within Island Maritime and Pearce and this case demonstrates that the Court has, as it were, misconstrued how that question is to be approached.  I appreciate, in a sense, I am not answering your Honour the Chief Justice’s question but I may be able to show that the issue is more difficult than it appears on the face of it by taking your Honours to what Justice Layton did.

One can see in a short passage in her reasons what the problem is.  At page 43 of the application book – and this approach was effectively endorsed by Justice Gray in the Court of Criminal Appeal - paragraph 23 we have a reference to Li Wan Quai and then – that is actually a quote from Pearce – that inset is a quotation from Pearce of which I have already taken your Honours to.  We move down the page and we see in paragraph 26 reference to:

does not suggest that the word “fact” is to be interpreted broadly so as to include simply facts in –

issue.  We accept that without qualification and that is, in a sense, the heresy of Grady v Corbin, but then it goes on to say:

Instead the word “fact” in the context appears to refer to the elements of the offence or the essential or material facts required to be proved to make out the offence.

Then we go over the page and we see at paragraph 28 in the fourth‑last line it is said – does not require, “nor what facts must be proved”.  I apologise if this is battle by footnotes but the reference there to footnote 16 is to your Honour Justice Gummow’s judgment in Pearce which effectively picked up the pluralities judgment at page 617 which is the passage that her Honour cited back at paragraph 23.  So there is a problem here.

Then when one moves on to her analysis at pages 44, 45 and 46 you could forget all about the facts of this case because all she has done is, as it were, analysed the elements of both offences and demonstrate, as we must accept, that wounding is an element of wounding with intent whereas in murder the element, if one calls it that, would be an act done, which has certain consequences.  In our submission the act done in a stabbing case must be a wounding.  That is the essential fact in the same sense as Wemyss.

If that approach is taken to Island Maritime and Pearce as it is, it is the heart of the justification of the approach taken by the Court of Criminal Appeal and we would submit as a matter of principle that is wrong.  The reason why it is wrong is because as a matter of substance when you are looking at the relationship between two offences it makes no difference whether you describe something as a wounding or as an act done in murder and that can be seen by the facts relied on here to prove the wounding which is a stabbing.

So if one got into what might be described as the murder exception we would submit that one would have to engage in a different form of analysis to this.  One would have to have an exception for a case where an element was not yet in existence and what one would have to have is an exception to the carefully worked out principles in Island Maritime and Pearce.  Your Honours, if we are wrong about that as a matter of principle, that is to say, Island Maritime and Pearce’s application to this case, then what we have, as it were, remaining is the question of abuse of process and that is discussed in the judgment of Justice Gray at pages 64 to 68.

I just wanted to refer your Honours to a very short passage at 67.  The second line in the quote from Justices Gaudron and Gummow in Carroll speaks of “some clear categories”.  In our submission, the point to be made is this, that this was treated – and one sees that at the top of that paragraph in 29 – as in effect an exercise of the House v The King discretion.  Our submission is that that is not the case because one is looking at discretionary factors which can be and must be ordered in the way in which I have submitted.

So, if one gets to the exercise of discretion it is not an unstructured discretion in this context and we submit the approach taken both by the judge at first instance and in the Full Court fell into the error of assuming that that was the case.  That is what I wanted to say about the second leg of the ‑ ‑ ‑

GUMMOW J:   What would the abuse of process be on the assumption that the other grounds are not made out?

MR GAME:   If your Honour pleases, the abuse of process would be that (a), although we did not succeed in – it would go like this, if the exercise mandated by Pearce and Island Maritime was one where purely elements were identified and we lost because of that then we would fall into the exercise of the structured discretion in relation to abuse of process.  In circumstances where the essential facts of the second count necessarily proved the first proven that, in effect, takes one to the heart of the same problem which, as I said before, is double vexation and the risk of inconsistent verdicts.  That is how we would put it.  If the Court pleases.

GLEESON CJ:   Yes, thank you.  We do not need to hear you, Mr Hinton.

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed.

MR GAME:   If the Court pleases.

GLEESON CJ:   We will adjourn for a short time to reconstitute.

AT 12.03 PM THE MATTER WAS CONCLUDED