Quail v The Queen

[2015] HCATrans 233

[2015] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M24 of 2015

B e t w e e n -

JOHN QUAIL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 2015, AT 11.44 AM

Copyright in the High Court of Australia

MS C.A. BOSTON:   May it please the Court, I appear on behalf of the applicant.  (instructed by Haines & Polites)

MR G.J.C. SILBERT, QC:   If your Honours please, I appear with my learned friend, MS S.A. FLYNN, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J:   Yes, Ms Boston.

MS BOSTON:   In the absence of directions on accident and self‑defence, the practical effect of the judge’s charge was that if the jury was satisfied beyond reasonable doubt that the applicant took the pistol to the scene, he was guilty of attempted murder.  As Justice Priest observed in dissent on appeal, the learned trial judge’s attempts to crystallise the central issues in the case for the jury instead unacceptably skewered them.  Accident and self‑defence were both raised by the evidence even should the jury conclude that the applicant brought the pistol to the scene and those questions, the so‑called available defence scenarios, were therefore required to be left to the jury’s consideration.

Now, the term “accident” is a little bit ambiguous.  Sometimes it is used to describe an absence of mens rea.  The way it is used here, though, the more usual way, is that it describes the element attaching to all offences that the actus reus be conscious, voluntary and deliberate.  Although, as a matter of shorthand I will refer to self‑defence and accident as defences, of course, strictly speaking they are not.  Rather, they are elements of the offence which the prosecution must prove beyond reasonable doubt once the issue is raised by the evidence. 

The test is the same for the trial judge and on appeal, namely – and this is from the cases in the table of authorities - but on the version of events most favourable to the accused, taking the evidence at its highest, might the evidence induce a reasonable doubt in a reasonable jury as to whether the applicant discharged a pistol voluntarily, consciously and deliberately.

KIEFEL J:   Is that what you rely upon to identify a defence of accident?

MS BOSTON:   Yes, your Honour, that is the test which applied both to the trial judge and applied at appeal, your Honour.

KIEFEL J:   But the evidence was that the two men were fighting.

MS BOSTON:   Yes, your Honour, there were various pieces of evidence and the evidence giving rise to accident.  There was the applicant’s evidence that the pistol discharged in the struggle, in the fight.  There was the chaotic circumstance in which the fight occurred.  There was the fact that the trigger pull, which is the pressure required to discharge the pistol, was below the normal limit, so there were a number of other pieces of evidence giving rise to accident as well.

KIEFEL J:   It is put against you at paragraph 10 of the respondent’s written submissions that both accident and self‑defence were clearly enough withdrawn from the jury and they were withdrawn with the consent of the defence and that appears from the conversations between the trial judge and counsel. 

MS BOSTON:   Firstly, your Honour, the conversation which took place between counsel and his Honour, there was no conversation about accident at all.

KIEFEL J:   But I think that is the point - that there would be a conversation about those topics if they were live issues.  They were not.

MS BOSTON:   Except that, your Honour, as this Court has made clear in a number of cases, most recently in the decision of James v The Queen (2014) 88 ALJR 427, any defence must be left where there is material raising it or evidence to support it regardless of the tactical decisions taken by counsel. That is for a very good reason, with respect, that is the burden of proof is on the prosecution to disprove self‑defence once there is evidence of it.

GORDON J:   What about the position that self‑defence and accident is inconsistent because your client denied taking the gun to the incident and denied doing the physical act charged?  Does that not create the conundrum that Justice Tadgell was talking about in Kear’s Case?

MS BOSTON:   There are two answers with respect to your Honour’s question.  Firstly, the applicant did not deny doing the act charged.  He told Dr Walton two months after the offence that he shot the complainant in self‑defence, effectively.  In his evidence he admitted that the gun discharged during the struggle and that he either did or could have pressed the trigger.  So that is the first point.  There was no denial of the act charged. 

Secondly, it is made quite clear in the authorities that because the burden of proof is on the prosecution to disprove defence it does not matter whether or not the accused himself claims the defence.  Even where the accused gives evidence which is inconsistent with the defence, if there is evidence raising the issue it still has to be left, so, for example, in Van Den Hoek the accused claimed she was acting in self‑defence.  Provocation was still required to be left, even though she gave no evidence that she had lost self‑control.

KIEFEL J:   But the duty on the trial judge, as is pointed out in the respondent’s submissions, is to identify the real issue, that is the real issue, one to which the evidence really gives rise to.  The only issue here was who brought the gun.

MS BOSTON:   With respect, that was certainly one issue for the jury in this case but it was not the only issue.  It was not the end of the matter.  Had the jury concluded that the applicant did not bring the gun to the scene that certainly would have been the end; he would have to be acquitted.  But once they were satisfied, as they clearly were, that the applicant brought the pistol to the scene, it does not mean that he thereafter did not act in self‑defence or by accident. 

There were a number of pieces of evidence, an abundance of evidence which supported those defences at least to the standard – to the threshold required by the test, might a reasonable jury have failed to be satisfied that the act was not done by accident or in self‑defence.  Most particularly, the evidence of Dr Walton alone required that the defence of self‑defence be left.

Now, the applicant saw Dr Walton in the context of preparing for a bail application two months after the incident, the alleged offence.  The Crown ultimately called Dr Walton, who is a psychiatrist, on the trial because the applicant told Dr Walton that he armed himself with the pistol to protect himself and went to the scene. 

Everything else he told Dr Walton was consistent with his evidence at trial on significant matters, including that they had arranged to meet to sort it out, that Mr Ridis ran at him and threatened to kill him and that he, the applicant, thought he needed to escape, that there was a struggle between the two men and that shots were fired.  So, even on the evidence of Dr Walton alone, self‑defence was raised at such that a reasonable jury might fail to be satisfied that the prosecution had failed to prove beyond reasonable doubt that the act was not in self‑defence.  So even if none of the other pieces of evidence existed, it still would need to be left on that basis.

Ground 1 is essentially a visitation ground and even if it were thought that there was no error in the majority’s reasoning that there was so much evidence of self‑defence and accident it was required to be left.  I have not mentioned the serious injuries but your Honours are no doubt aware of those - that scalp indentations that were described as looking like hammer blows, defensive wounds to the hands, a puncture wound in the applicant’s leg and a laceration to his finger going all the way to the bone, not to mention the fact that the complainant’s DNA was found on the trigger of the gun in circumstances where he claimed to have no recollection of picking up the gun at all. 

So there was certainly all of that evidence in addition to the applicant’s evidence that even if the jury rejected his account of not bringing the pistol to the scene, he said he defended himself and did what he could in the circumstances, that the complainant took the gun and tried to kill him and that the gun discharged or he shot the complainant while they were fighting.

Accident and self‑defence were the applicant’s true defences in this case.  A substantial miscarriage of justice has been occasioned by the jury not being permitted to consider those defences before convicting him of attempted murder.  For that reason, in my respectful submission, special leave ought be granted on ground 1 in the interests of the administration of justice in the particular case.

Ground 2, it is respectfully submitted that the majority reversed the burden of proof by reasoning that self‑defence and accident were not required to be left to the jury, at least in part because they did not arise on the applicant’s evidence beyond, of course, requiring an acquittal if the jury was not satisfied that he brought the pistol

KIEFEL J:   Are you saying, in this respect, that the Court of Appeal did not have regard to the whole of the evidence?

MS BOSTON:   I am saying three things, your Honour.  In my respectful submission, there are three ways in the majority’s reasons which demonstrate this reversal of the burden of proof.  Just to outline them - first, the majority repeatedly referred to the applicant’s evidence either failing to raise or contradicting the available defence scenarios, so that being the possibility of accident or self‑defence even if the jury concluded that the applicant brought the gun to the scene.

Secondly, their Honours did not allow for the possibility that the jury may accept other parts of the applicant’s evidence even if they rejected his denials of bringing the pistol.  Thirdly, the majority discounted evidence from other sources where it conflicted with the applicant’s testimony.  So they are the three ways.

KIEFEL J:   Their Honours were viewing the evidence with a view and came to a conclusion that it was – as a whole it was overwhelming.  Is that not right?

MS BOSTON:   This is a substantial miscarriage of justice point, your Honour because – so, they are the three ways it is said – their Honours considered that the evidence was overwhelming in the context of saying even if we are wrong and there was an error there was, nevertheless, no substantial miscarriage of justice.

GORDON J:   Can I put it two ways?  They also said they regarded the way in which it was put on appeal as an artificial reconstruction of events. 

MS BOSTON:   Yes, your Honour, but the question is – that is not the question, with respect.  The question is whether there is evidence which satisfies that test.  In terms of it being an artificial reconstruction of events I would, with respect, reject that characterisation entirely and, as Justice Priest recognised in dissent, accident and self‑defence were the applicant’s true defences.

GORDON J:   But never raised by counsel?

MS BOSTON:   Counsel was in a difficult position, of course, tactically, in circumstances where his argument was that ‑ ‑ ‑

GORDON J:   He had not taken the gun.

MS BOSTON:   Had not taken the gun.  That is why in cases like ‑ ‑ ‑

KIEFEL J:   Not so much tactically as logically, probably.

MS BOSTON:It is interesting that your Honour Justice Kiefel, with respect, should use that word “logical”.  My learned friends rely on Justice Tadgell’s dissenting judgment in Kear’s Case where his Honour said that in circumstances where the accused in that case denied shooting the victim it would be an unintelligible conundrum for the jury to have to then consider self‑defence.

His Honour was in the minority in that case essentially because, of course, the burden of proof is on the prosecution to disprove self‑defence.  So, even if the accused is saying one thing it does not mean that the other evidence can be ignored for the purposes of whether a defence must be left to the jury. 

Furthermore, it was central to Justice Tadgell’s reasoning that if the argument of the appellant in that case were correct, it would mean that provocation and self‑defence, for example, would have to be left to a jury even where the defence was one of alibi – “I was not there”.  His Honour described such a notion as fanciful or farfetched but then since then, only two or three months ago, this Court delivered judgment in Lindsay which delivered that very result. 

In that case the defence of the accused was “I was not there when the fatal wounds were inflicted” but this Court held that provocation, nevertheless, had to be left to the jury because there was evidence of it from other sources.  With respect, it is the same situation here, albeit in the context of self‑defence and accident. 

Given the respondent has relied on Justice Tadgell’s dissenting judgment and the approach taken by the Court of Appeal, although it was said in the submissions that the relevant principles are well settled, it appears perhaps they are not and that this case would provide a welcome opportunity for the Court to provide clarity on the issue. 

I suppose, given the time, I might not go in detail through each of those three categories except just to pick out a couple of the points.  Category 3 is coming back to this point of discounting – this is category 3 of the way in which the majority reversed the burden of proof, is that they discounted evidence from other sources where it conflicted with the applicant’s testimony and, with respect, the authorities do not permit that.

This has three manifestations.  Firstly, the majority set up this false dichotomy between the accounts of the applicant and Mr Ridis overlooking the possibility of some intermediate position such as that suggested by Dr Walton’s evidence, namely, the applicant brought the gun to the scene but there was then a struggle and shots were fired during that struggle and effectively in self‑defence.  At paragraph 14 of application book 118 the majority refers to:

the competing testimony of the appellant and Mr Ridis.

At paragraph 15:

The appellant’s account was diametrically opposed to the account of Mr Ridis.

As for Dr Walton’s evidence, the majority did not refer to that evidence until paragraph 23, application book 122, despite by that stage already having stated a number of times that self‑defence did not arise on the evidence.  At paragraph 23 their Honours say that Dr Walton’s evidence:

must be considered in the context that the appellant denied in his testimony that he had told Dr Walton that he had taken a pistol to the scene of the shooting –

It is a clear reversal of the burden of proof, in my respectful submission, a clear reversal.  Dr Walton’s evidence did not have to be considered in the context of what the applicant’s evidence was.  It is reversing the burden of

proof.  There is no burden of proof on the applicant.  Thirdly, the majority made no mention of the other evidence said to give rise to self‑defence until paragraph 24 - this is at application book page 122 - and even then their Honours only obliquely referred to:

the pieces of evidence identified by the appellant on appeal –

without identifying them.  The majority made no mention at all of the other evidence said to give rise to accident.  In my respectful submission, those matters strongly suggest that the majority discounted the evidence said to give rise to self‑defence and accident which came from sources other than the applicant where it conflicted with the applicant’s evidence.  That, with respect, is a reversal of the burden of proof.

In my respectful submission, special leave should be granted on ground 2 to correct that most fundamental of errors, breaching the golden thread of the criminal law to resolve the dispute which now exists between this case and Kear because although the Court purported to distinguish here, in reality those two cases are indistinguishable.  In Kear, of course, the accused denied striking the victim at all saying that a third party had thrown a flowerpot which had hit the victim. 

In my respectful submission, leave ought be granted to decide the case in accordance with the principles which have been set down by this Court in cases such as Van Den Hoek and Lindsay requiring that defences be left if there is evidence raising them irrespective of whether the point is taken by counsel or the applicant.  May it please the Court.

KIEFEL J:   Thank you, Ms Boston.  We need not trouble you, Mr Silbert.

MR SILBERT:   If the Court pleases.

KIEFEL J:   We consider that the interests of justice do not warrant the grant of special leave in this matter.  Special leave is refused.

AT 12.04 PM THE MATTER WAS CONCLUDED