R v Lavender
[2005] HCATrans 183
[2005] HCATrans 183
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S499 of 2004
B e t w e e n -
THE QUEEN
Appellant
and
WAYNE KELVIN LAVENDER
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 5 APRIL 2005, AT 10.19 AM
Copyright in the High Court of Australia
MR G.E. SMITH, SC: If the Court pleases, I appear in this matter for the appellant with my learned friend, MS J.A. GIRDHAM. (instructed by Solicitor for Public Prosecutions (New South Wales))
MR P. BYRNE, SC: If the Court pleases, I appear with my learned friend, MR P.J.D. HAMILL, SC, for the respondent. (instructed by Legal Aid Commission of New South Wales)
GLEESON CJ: Yes, Mr Smith.
MR SMITH: If the Court pleases, several aspects of the decision of the Court of Criminal Appeal in this matter have significantly changed the interpretation of the law of involuntary manslaughter in New South Wales. Although this case involved manslaughter by criminal negligence, it would logically follow that it would also apply to unlawful and dangerous act manslaughter as it applies in New South Wales. The previous interpretation in New South Wales concerning both types of involuntary manslaughter were well settled and were consistent with interpretations of the law in the other Australian States and Territories, particularly the common law States and Territory.
These interpretations were also consistent with the majority judgment of this Court in Wilson v The Queen (1991-1992) 174 CLR 313, which was an appeal from the South Australian Court of Criminal Appeal, which primarily dealt with unlawful and dangerous act manslaughter, but also confirmed the correctness of the decision of the Full Court of the Supreme Court of Victoria in Nydam v The Queen [1977] VR 430.
Contrary to settled authority and without a detailed examination of sections 18 and 5 of the Crimes Act 1900, all three judges of the Court of Criminal Appeal found that malice was an element of involuntary manslaughter as well as murder. In paragraph 5.3 of our submissions, which is at page 3, we refer to the various paragraphs in the judgment and the appeal book numbers concerning the findings of those judges on the question of malice.
Justice Giles, the presiding judge, who ultimately decided the trial judge gave adequate directions in accordance with Nydam which were more than sufficient to deal with the element, had earlier commented at appeal book 248, paragraph 135, as follows:
There is little authority on s 18(2). The submissions were scanty, and did not endeavour to place s 18(2) in a historical context or to analyse to any extent why it had or did not have either of the consequences for which the appellant contended.
And as we submitted at page 19 of our submissions, paragraph 5.71, that before a court decides that a statute means something new or makes new elements in an age-old offence, they should carefully consider the common law, and we refer to Conway and the status of the common law at the time that the statutory provision was made.
HAYNE J: Why does one begin by examining the common law? Why does one not begin in the terms of the statute, see how far that takes you, perhaps discover in relation to section 18 and section 5 that it takes you some of the way but not all of the way, and then, and only then, come to look at questions of common law treatment of manslaughter?
MR SMITH: Yes, that is certainly a proper way to do it. I am just giving this as an introduction, if your Honour pleases, and I will be going into a detailed examination of section 18 very shortly.
GLEESON CJ: Yes. One of the first things to notice about section 18 is that 18(1)(b) is not a definition of “manslaughter”.
MR SMITH: That is right, your Honour, and despite the fact, I think, in a modern version of the section, the side note says “Murder and manslaughter defined”, that is clearly erroneous ‑ ‑ ‑
GUMMOW J: You have to go to section 24, have you not?
MR SMITH: Section 24 sets out the punishment for manslaughter; it does not define it, as I understand it. All section 18(1)(b) is saying is that all other punishable homicides shall be manslaughter.
GLEESON CJ: Section 18(1)(b) tells you what is not murder.
MR SMITH: That is right and it is our primary contention that section 18 in general is dealing with murder; it is not dealing with manslaughter. Manslaughter is mentioned just as an exception to murder in the sense of all other punishable homicides.
GLEESON CJ: Well, 18, it expresses slightly differently what was previously in the 1883 statute, does it not? But it does not substantially take a different scheme.
MR SMITH: I think, your Honour, all it does is it sets it into subparagraphs, (1)(a), (1)(b), (2)(a), 2(b).
GLEESON CJ: We have that attached to your chronology, do we not?
MR SMITH: Yes, your Honour.
GLEESON CJ: The 1883 statute.
MR SMITH: Yes, we have attached to our original submissions the 1883 Act and the 1900 Act, I think, as well as the current version of the 1900 Act.
KIRBY J: What is the status, under the Interpretation Act (NSW), of the marginal note?
MR SMITH: My understanding is it has no status.
KIRBY J: Well, we had better know. We had better be told what the Interpretation Act says.
MR SMITH: We will have a look at that, but, your Honours ‑ ‑ ‑
KIRBY J: Because it does say, “manslaughter defined”.
GLEESON CJ: If that is a definition of manslaughter, then the definition is “Manslaughter is any punishable homicide that is not murder”.
MR SMITH: That is right.
KIRBY J: You point out that is not actually correct, that there are punishable homicides that are not manslaughter under the Act.
MR SMITH: There are other punishable homicides, such as dangerous driving and infanticide.
KIRBY J: They are specifically provided for?
MR SMITH: Yes, they are. At that stage, of course, dangerous driving was not, but infanticide, as I recall it, was originally in the 1883 Act. If we go to – firstly, I take you to section 18 of the Act, ignoring the headings ‑ ‑ ‑
HAYNE J: As to that, see section 35 of the Interpretation Act 1987, particularly section 35(2).
MR SMITH: Thank you, and 18(1)(a):
Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
Section 9 of the 1883 Act ‑ ‑ ‑
KIRBY J: The problem for you, though – you have to face up to it – is paragraph (1)(b) that says:
Every other punishable homicide shall be taken to be manslaughter.
Then it says in (2)(a):
No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
It does not say, “shall be manslaughter” or ‑ ‑ ‑
MR SMITH: Shall apply to murder.
KIRBY J: Shall not apply to murder, yes.
MR SMITH: Yes, we will address that, if I can just do it in the way I was planning to, because I am going to take you into some historical material which we say makes a big difference in the interpretation of section 18, because it shows, in accordance with authorities of this Court, that you do not necessarily just interpret the words of the statute as they appear on their face, when there is a common law history and there is reason for certain wording.
HAYNE J: All that assumes that simply interpreting the statute on its face presents you with a problem, and at the moment, at least, uninstructed, it is not apparent to me why that is so. It is not apparent to me what is this problem that you are trying to surmount.
MR SMITH: Well, it certainly was considered a problem by the three judges of the Court of Criminal Appeal in this matter, and my friends, and has been seen as a problem in earlier judgments of this Court, where there has not been a considered examination of the historical basis for section 18.
GUMMOW J: Well, no one has ever thought otherwise.
MR SMITH: If I can just take you to just comparing section 18 of the current Crimes Act where you have 1(a) and (b), with section 9 of the 1883 Act, which was also attached to our submissions. The penalty is different and ‑ ‑ ‑
KIRBY J: Is that the first criminal statute in New South Wales, or can we be favoured with the whole history of New South Wales criminal legislation?
MR SMITH: We will come back to that, your Honour. As I understand it, the common law provisions and the Offences Against the Persons Act, the imperial Act, had applied, and this is an attempt to create an Act for New South Wales, but I might be wrong on that. There was some early legislation in New South Wales on this matter and I will get some instructions on that.
GUMMOW J: You just have to look at section 1 of the 1883 Act. It takes you to a schedule, and there you are.
KIRBY J: With all those murderous convicts, they would have had to have a provision right from the very word go.
MR SMITH: Yes, unfortunately. I am sure it was very necessary, but if you just look at section 9 of the 1883 Act and section 18(1)(a) and (b), they are virtually identical except for the words “him or her” appearing in the modern statute, and the fact that in section 9 there are no subsections as there are in the current section 18.
Now, section 18(2) derived from section 14 of the 1883 Act which said in 1883:
No act or omission which was not malicious or for which the accused had lawful cause or excuse shall be within the aforesaid ninth section. And no punishment or forfeiture shall be incurred by any person who kills another by misfortune only or in his own defence.
GUMMOW J: And the question is, what does “be within” mean?
GLEESON CJ: Having regard to the form of the last sentence of section 9.
MR SMITH: Yes. We submit that it is meant to tone down the severity of section 9 so far as murder is concerned, and it seems from the parliamentary debate, which I will come to, that section 9 was a tougher – if I can use that expression – law concerning murder than the proposed English code that had been devised. There was debate in Parliament as to how harsh it was, because it covered reckless disregard for human life in a much broader way than had previously been the case under either the common law or under the code.
Section 14 contains those early words:
No act or omission which was not malicious or for which the accused had lawful cause or excuse shall be within the aforesaid ninth section.
GLEESON CJ: Was there a definition of “malice” in the 1883 Act?
MR SMITH: Yes, it is effectively the same as section 5. I will take you to that and I will come back to section 14 in a little while. Section 7 of the 1883 Act was the first time, as I understand, any attempt was made in a statute to define “malice” for New South Wales.
GLEESON CJ: But how do you relate the word “within” in section 14 of the 1883 Act to the legislative statement in the last sentence of section 9 which simply says:
Every other punishable homicide shall be taken to be Manslaughter.
MR SMITH: We submit that you cannot assume that that first part of section 14 applies also to manslaughter. It is only meant to concern murder which is the rest of section 9, and I will come to show the circumstances in which that provision in section 14, those words “No act or omission” was introduced during the debate on the 1883 Act to tone down the harshness of the murder principle.
GLEESON CJ: What is the significance of those words, “shall be taken to be Manslaughter”? Taken by whom?
MR SMITH: Taken by the courts, the community, as I understood. It is almost like a deeming provision and it does not cover behaviour that caused death by misfortune. I will give you some material that supports that submission, but for punishable homicides, bearing in mind that originally there was only murder and ultimately out of that original idea of homicide manslaughter developed, but as time went on, the harshness of the penalties and the harshness of the offence which carried death penalty of course was reduced by, in effect, developing the offence of manslaughter.
KIRBY J: The normal reading of “shall be taken to be” would be that although every other punishable homicide might not at common law be manslaughter, it shall now be deemed to be manslaughter. It is as if, as you say, it is a deeming; it is going beyond the previous understanding of the law.
MR SMITH: With respect, no. It is not going beyond the previous understanding of the law. This is an attempt in section 9 to do away with something that Sir James Fitzjames Stephen had been trying to do away with in England, the element of malice aforethought. They are making clear here that these types of malice that are specifically included as elements of murder are not applying to manslaughter.
GLEESON CJ: Where was the penalty for murder referred to in the 1883 statute?
MR SMITH: About the third last line.
GLEESON CJ: Death or penal servitude for life.
MR SMITH: Yes.
GLEESON CJ: That is the act, obviously dangerous ‑ ‑ ‑
HAYNE J: Was that not the identification of the crimes in the course of which murder might be committed, rather than the specification of punishment?
GLEESON CJ: It is the first sentence, is it not?
MR SMITH: Pardon me. Yes, that does apply to felony murders.
GLEESON CJ: It is the first sentence.
MR SMITH: Sorry, it is the first sentence:
Whosoever commits the crime of murder shall be liable to suffer death.
GUMMOW J: Yes. You have to go to read the first sentence of 9, and the first sentence of 13.
MR SMITH: Yes, that deals with the penalty for manslaughter.
GLEESON CJ: So what those words, intended to replace “malice aforethought”, are doing is telling you who is liable to the death penalty.
MR SMITH: That is right, and the beginning of section 14 was that a manner by which the Attorney‑General was able to convince the majority of the Parliament, the Upper House, that they should pass section 9. There had been some years of attempts to get this law through – I think six or seven years, and they had more time in those days. I think the debate is very lengthy, but I will take you to the discussion on section 14 ‑ ‑ ‑
HAYNE J: Let us accept, for the purposes of argument, that 14 is intended as an ameliorating provision. Let us accept that it is introduced as a matter of political expediency. But the amelioration that it introduces, so far as presently relevant, with the reference to “No act or omission which was not malicious” takes you back to 7 of the 1883 Act, it takes you back to the fact that malice is there defined in two parts, the first part being “Every act done of malice” but the second part being, in effect, every act done without malice but with certain characteristics is taken to have been done maliciously. And the amelioration in 14 then must be read recognising that the definitions of “malice” in 7 do not match precisely, or, in important respects, at all, the definition of the required mental states for murder.
Therefore, what is 14 doing? Is it simply there as an emphatic, politically‑driven provision, emphasising what is explicit, not just implicit, in the definition of the mental state of murder, or is it doing something more? Is it doing something in respect of manslaughter? If it is doing something in respect of manslaughter, is it doing it by reference to, amongst other things, acts done without malice but with indifference to human life? Which leads me back to the question, you approach this as though there is some great hurdle that must be surmounted. What is the hurdle?
MR SMITH: We do not see the hurdle, but we are seeking to restore ‑ ‑ ‑
GLEESON CJ: The hurdle is the decision of the Court of Criminal Appeal.
MR SMITH: That is. We do not see that it was a legitimate hurdle. We are seeking to restore what it was, how it has been interpreted for 100 years, and it is rather unusual that a section that has been treated in a certain way for 100 years without any historical or close analysis of the words and why they were there is suddenly changed quite considerably to bring an element of malice into manslaughter, and in some ways it could mean that manslaughter gets very close to murder.
KIRBY J: Yes, but the problem is it is not the first time that common lawyers who love the common law and hate statutes just go on assuming that the common law remains or the statute has not changed the common law, but then years later judges put their magnifying glass on the statute and say, “Hang on, this says, ‘shall be within the section’.” The section deals with manslaughter and therefore you have to give the meaning to the statute that the plain words require. I mean, it has happened many times, and it is just that what is essentially the question for us is: is that a legitimate course having regard to the terms of the statute, or is there sufficient uncertainty or obscurity to justify the previous assumptions which were the common law assumptions?
MR SMITH: Yes, your Honour. We beg to differ with the section meaning manslaughter as well.
KIRBY J: Well, “within this section” and when the section refers to manslaughter is a pretty good anchor for the view taken by the Court of Appeal.
MR SMITH: Yes. Perhaps I should take your Honours, to try and answer that, to the Hansard dealing with the 1883 Act, and it is specifically dealing with sections 9 and 14.
KIRBY J: But the first step is, is there an ambiguity in the language of the statute?
MR SMITH: There is certainly this aspect to the language of the statute. It is not clear that it does apply to manslaughter, that section 14 applies to manslaughter. That is what we submit.
KIRBY J: But how do you get around those words, “shall be within this section”? This section is section 18. Section 18 deals with murder in (a) and manslaughter in (b), and therefore on the face of it is dealing with murder and manslaughter. The marginal notes, if they can be looked at, show, murder defined, manslaughter defined. The heading of the part is “Homicide”, and that is therefore those two categories of homicide, and then it says you have to have malice, and that is certainly the way Justices Toohey and Gaudron read it when they looked at it in Royall, and it does seem on the face of things to be – if you knew nothing else, if you were just coming at this as a matter of statutory construction, that is a pretty strong anchor for that textual analysis.
MR SMITH: Yes, I agree that if you knew nothing else, and that is why I wish to go to the something else ‑ ‑ ‑
KIRBY J: You want to plant all sorts of extraneous material?
MR SMITH: No, with respect, I want to do what I submit that the Court of Criminal Appeal should have done before turning back 100 years of interpretation ‑ or two of them, anyhow – and, admittedly, the interpretation took on various glosses during the 20th century but the primary intention, we submit, of the makers of this Act, the 1883 Act, was that murder is homicide with malice aforethought; manslaughter is homicide without malice.
McHUGH J: But is not the key to the problem the concluding words of the definition of “malice”, both in section 7 of the 1883 Act and section 5 of the 1900 Act? That is, the definition of “maliciously” only applies “where malice is by law an ingredient in the crime”.
MR SMITH: That is right.
McHUGH J: Now, was malice an ingredient of the crime of manslaughter at the time when the 1883 Act was passed?
MR SMITH: No, we would submit not, and I will ‑ ‑ ‑
McHUGH J: I mean, the common law of homicide was obsessed with the notion of malice aforethought. Most of the discussion in the centuries from, say, the 14th century, certainly up to the time that Foster wrote, was concerned with that conception.
MR SMITH: Yes, and really the revision of that common law was driven largely by Sir James Stephen in the late 19th century, with a view to making the murder law less complex and the malice aforethought aspects more clear. That was the genesis of this legislation, in effect.
McHUGH J: Part of the problem arises because, at common law, manslaughter was not a separate crime, was it? I mean, one was indicted for murder, but the jury could bring in a verdict of manslaughter.
MR SMITH: That is right.
GLEESON CJ: This offender was not indicted for murder.
MR SMITH: No.
GLEESON CJ: He was indicted for feloniously slaying somebody.
MR SMITH: Homicide had two limbs, murder and manslaughter, and this Court in earlier decisions, and the New South Wales Court of Criminal Appeal in a case called Downes that I will come to, looked at whether certain amendments to the Crimes Act – I think it was section 23, dealing with provocation – had the effect of taking away that nexus between murder and manslaughter, and manslaughter always being available as an alternative charge.
McHUGH J: Was it not the position that until Woolmington, in every charge of murder, once a killing was proved, malice was presumed unless the accused person was able to establish that it was a matter of accident or necessity or whatever?
MR SMITH: Yes, and Woolmington changed all that.
McHUGH J: And Woolmington changed all that.
MR SMITH: Yes.
McHUGH J: I mean, Sir Owen Dixon showed that the reasoning in Woolmington was historically rather incorrect, but he did not disapprove of the decision in Woolmington.
MR SMITH: No, that is right, and that was the state of the law until Woolmington, so far as murder is concerned. But just taking up what your Honour mentioned in the last couple of lines of section 7:
and of every indictment and charge where malice is by law an ingredient in the crime.
If I could just take you to section 318 of the 1883 Act, which is in your attachment. They set out what has to be put in an indictment for manslaughter.
McHUGH J: I am sorry, it is not in my copy.
MR SMITH: I am sorry. I will read it out and perhaps that helps. Section 318 and ‑ ‑ ‑
McHUGH J: Sorry, 318, yes, it is.
MR SMITH: Yes, 318:
In an indictment for murder or manslaughter it shall not be necessary to set forth the manner –
because it was the old system of setting out the facts, as it were, that supported the elements –
in which or the means by which the death alleged was caused but it shall be sufficient in an indictment for murder to charge that the accused did feloniously and maliciously murder the deceased and in an indictment for manslaughter to charge that the accused did feloniously slay the deceased –
so “maliciously” was not an element required ‑ ‑ ‑
GLEESON CJ: Which is the present indictment - see page 1 of the appeal book.
MR SMITH: Yes, that is right, and section 318 was the forerunner to a section in the Crimes Act 1900 which was deleted in about 1952 – and I think we have mentioned all this in our submission – but in the second reading speech the Minister said that there was no substantive amendments. These were just procedural matters to clear up matters but, in any event, there was never any change and never any section equivalent to 318 that was brought in saying that an indictment for manslaughter must say that the accused did feloniously and maliciously slay the deceased.
GLEESON CJ: What is the current form of the charge in an indictment for murder in New South Wales?
MR SMITH: “Did murder”.
GLEESON CJ: Just, “did murder”.
MR SMITH: Yes.
GLEESON CJ: And is this form that we see on page 1 the standard form of an indictment for manslaughter?
MR SMITH: I just better read it before I say yes.
KIRBY J: The problem with Justice McHugh’s theory of the closing words of section 5 of the 1900 Act, 7 of the older Act, is that they are the general provisions.
MR SMITH: I am sorry, I ‑ ‑ ‑
KIRBY J: The problem with, as it were, seeing the solution within those last words of the definition of “maliciously” is at least arguably that that is the general provision, whereas when you get down to the substance of manslaughter and murder, you are in the realm of section 18 which is a specific and intended to be a comprehensive treatment of those two crimes of homicide for which, according to subsection (2)(a), will not be a crime unless malicious, and therefore the substance is defined within section 18(2)(a) and not within the definitional section. It has to be malicious by the express command of Parliament. At least, that is the argument.
GUMMOW J: Section 18(2)(a) talks “act or omission”, right? You ask yourself: where do the words “act or omission” occur in section 18(1)(a). The answer: in the opening lines dealing with murder, right? End of problem.
MR SMITH: With respect, I agree.
GLEESON CJ: How could you relate the definition of “malice” in section 7 to a well-known form of manslaughter, that is manslaughter by unlawful and dangerous act?
MR SMITH: It is very difficult to see except, I suppose, if one assumed that the decision of the Court of Criminal Appeal was correct on this aspect that if you intended to hit someone, punch someone, and they fell over and bashed their skull and died of a brain haemorrhage, that that would be seen as malice, the actual striking originally. So in a sense you have had intent to injure, which is part of section 7 after the “indifference to human life or suffering or with intent to injure some person”.
GLEESON CJ: Suppose the unlawful and dangerous act consisted in putting a sharp knife to somebody’s throat but without actually intending to cut it.
MR SMITH: It is difficult to see there unless something frightens the man and he pushes into the knife and gets his artery cut. That might move more into the area of negligence, but as an unlawful and dangerous act it is hard to see any way of showing an intent to injure there.
KIRBY J: Yes, but the definition is “intent to injure . . . or done recklessly or wantonly”, so you can have malice, although it is not malice in common parlance, but it is defined malice.
MR SMITH: Yes, particularly the expression “recklessly” seems to have caused a lot of confusion and difficulty, as the English cases have pointed out.
GLEESON CJ: Was this matter conducted on the assumption that “recklessly” requires advertence to the possibility of harm or loss of life?
MR SMITH: No.
GLEESON CJ: Is that not the current state of the law in England?
MR SMITH: No. We submit that the current state of the law in England is the same as it is here both for unlawful dangerous act manslaughter and criminal negligence manslaughter. The terminology is slightly different but it has the same effect.
GLEESON CJ: Which is?
MR SMITH: Which is that if the act is unlawful and dangerous, for example, you do not have to know that at the time you do what you do that causes the death.
GLEESON CJ: But what does that have to do with recklessness? If it is an unlawful and dangerous act, does it have to be reckless?
MR SMITH: No.
GLEESON CJ: That is the point. Recklessness, where it is an element of the offence, involves, does it not, adverting to the possibility of harm and going ahead regardless of the possibility?
MR SMITH: Yes.
GLEESON CJ: It is the law, is it not, that recklessness does not mean just extremely negligent?
MR SMITH: Recklessness is subjective, we submit. Criminal negligence manslaughter is not subjective, it is objective, as is unlawful and dangerous act.
GLEESON CJ: I am just asking what “reckless” means in the definition of “malice” because it is relevant to the question of the application of this definition to manslaughter. What do you say “recklessly” means?
MR SMITH: Knowingly careless.
GLEESON CJ: Yes. I thought you said in your submissions that it does not just mean very careless.
MR SMITH: If we did, “knowingly careless” is not very careless.
GLEESON CJ: In your submission, does “recklessness” involve adverting to the possibility of the consequences of harm and going ahead regardless?
MR SMITH: It would normally mean that.
GLEESON CJ: Is that not what the House of Lords held it meant in 2004 or 2003?
MR SMITH: I am not sure what case your Honour is referring to.
GLEESON CJ: R v G [2004] 1 AC.
MR SMITH: I am afraid I have not read that case. I know I should have. I have read cases up to 2000, I think.
GLEESON CJ: Coming back to the example of holding a knife to somebody’s throat, which sounds like an unlawful and dangerous act ‑ ‑ ‑
MR SMITH: It is certainly an assault but not an unlawful and dangerous act.
GLEESON CJ: If putting a knife to somebody’s throat, in circumstances where that is an unlawful and dangerous act, is a cause of the death of the person, that results in the offence of manslaughter, does not it?
MR SMITH: Yes.
GLEESON CJ: Regardless of whether the conduct was reckless?
MR SMITH: Yes.
McHUGH J: That is at common law, but under this statute, if all the judges of the Court of Criminal Appeal say that section 5 definition applies to manslaughter, that must mean, does it not, that you cannot have a conviction of manslaughter unless the evidence establishes one of four categories. First of all, there must be malice, which in Woolmington the House of Lords said meant intent to kill, or secondly, indifference to human life or suffering, or thirdly, intent to injure, or fourthly, that the act was done recklessly or wantonly. So there is no room for unlawful and dangerous act type negligence under the statute, is there, if the section 5 definition applies, and there is no room for criminal negligence in the common law sense either, is there, if it applies?
MR SMITH: That is our submission.
McHUGH J: Yes, I understand that.
HAYNE J: What meaning are you giving to indifference to human life or suffering? It has to be a meaning different from recklessness, that is, it has to be a meaning different from knowingly adverting to the risk. What meaning are you giving to indifference?
MR SMITH: It obviously could cover the case of someone not caring whether their act kills someone or not or injures someone.
HAYNE J: Given its juxtaposition with recklessness and wantonness, which might be understood as in accordance with the current common law position, I would have thought, of knowing advertence, why would indifference to human life or suffering not encompass culpable negligence? Why would it not encompass the unlawful and dangerous act?
MR SMITH: It is still a subjective criterion, your Honour.
HAYNE J: Oh.
MR SMITH: To not care, knowing or if you should have known that something was going to do harm ‑ ‑ ‑
HAYNE J: That seems to me, at first blush, not to give sufficient weight to the division in the definition of “malice” and “malicious” between acts done of malice and acts done without malice, of which this is a particular species, but perhaps the logically prior question is whether you ever get there – I understand that, but even if you get there, for the moment, as I say, I do not see the hurdle that is being surmounted.
MR SMITH: Justice Giles ruled that that aspect, indifference to human life and suffering, would be the only malice, assuming as he did that malice was required, that that would be the only malice in this case, and that the Nydam direction, requiring gross criminal neglect or negligence, incorporated that. He felt that the direction given on the Nydam basis incorporated that type of aspect.
KIRBY J: Can I just ask, do you support Justice Giles’ reasoning as a fallback?
MR SMITH: Not on that. Well, as a fallback we would, but primarily we do not. We think ‑ ‑ ‑
KIRBY J: I realise that.
MR SMITH: Yes, but we would because we submit that he came to the right conclusion and he held that the Nydam test covered that aspect of behaviour.
KIRBY J: And he said that the directions given by the trial judge were adequate for that test.
MR SMITH: Yes, in fact I think he said that they were quite adequate to cover these matters.
KIRBY J: The problem is that the trial judge did say you do not have to consider whether the accused appreciated, you do not have to consider what he believed or what he thought. It is hard to reconcile those directions with the fact that those issues are relevant, although they may not be determinative.
MR SMITH: Although he did say the jury could take into account in reaching their conclusion that he did give an explanation.
KIRBY J: Well, you will come to that in due course, no doubt.
MR SMITH: If I could just take you to the debate. If I could hand up copies of the Hansard dealing with the debate. The relevant passages dealing with the debate on sections 9, 7 and 14 ‑ ‑ ‑
GLEESON CJ: Is this page 1098 of Hansard?
MR SMITH: No, it is one of them. We need to go a bit wider than that, your Honour.
GLEESON CJ: Thank you.
KIRBY J: Can you put this in context? There was the English attempt to codify the criminal law.
MR SMITH: There was, and there was a commission and they never ‑ ‑ ‑
KIRBY J: When did that happen? Just tell me.
MR SMITH: Well, no, it did not happen and ‑ ‑ ‑
KIRBY J: I know it did not happen, but how did that – it happened in India. I mean, it had its effects in the empire but not in the United Kingdom.
MR SMITH: And that was drafted by Sir James Fitzjames Stephen.
KIRBY J: And was that the source of the Griffith Code or one of the sources?
MR SMITH: Yes, as I understand.
KIRBY J: So it had its effect in some parts of Australia in that way.
MR SMITH: Yes. But just on this debate in the – and I think I have it in the packet from page 1095. I will just go back. Page 1094 involved discussion on clause 9, so 1095 is looking at clause 9 and there was not any amendment to clause 9.
Perhaps I could just go a little bit – no, I will start there – at 1095, the first column, where there had been an amendment moved by Mr Melville to replace the death penalty with life imprisonment. If you look at about point 7:
That the words proposed to be omitted stand part of the clause –
There were “no tellers on the side of the noes”, so that was unsuccessful. The death penalty stayed in. Mr McLaughlin moved:
That the words “with reckless indifference to life,” line 6, be omitted.
Thereafter, there was considerable debate on the wording of the proposed section 9 and how it seemed to widen the ambit of reckless indifference murder. In 1096, Mr Lyne said that:
The words “reckless indifference” ought to be left out altogether –
that is about point 2 of the first column –
and the penalty of death should be inflicted only in cases of malicious and intentional murder. The ends of justice would be defeated if any other principle were adopted. It would be very difficult to get a jury to convict a pointsman who had caused a railway accident through negligence if the provisions contained in this clause were enacted.
Mr Smith, who I understand was the member for Tamworth, and appears to have been a legally trained man, then commenced a historical speech on the Stephen Code amendments and the law of commission and, in the second column of that page 1096 about point 7, talking about the English code:
The definition given in that code did not contain one word in reference to the omission to do an act.
So they were upset about, in section 9, the expression “omission”.
There were certain acts the omission to do which, if it resulted in the loss of human life, would render a man liable to be convicted of murder. For instance, suppose a builder, anxious to complete his contract, erected some flimsy scaffolding which could not bear the weight –
and men went on it and they died –
The builder might possibly be found guilty of murder, because he had acted with a reckless indifference to human life. It might be objected that the words “reckless indifference to human life” would operate as a sort of saving clause; but he could imagine a case –
and this is not an actual transcript, it is notes –
but he could imagine –
that is, Mr Bruce Smith –
a case in which a jury might come to the conclusion that although the builder did not know that the scaffolding was of a flimsy description, he was still guilty of acting with reckless indifference to human life.
And then:
The jury might consist of bricklayers, who might consider that they had not been liberally treated by the accused. This was a case which might possibly come within the definition.
Then there are some regrets about the definition and then he read out aspects, the definition of which had been given in the English code, and there are four matters there, none of which cover omissions:
(a) If the offender means to cause the death of the person killed.
(b) If the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death; and if the offender, whether he does or does not mean to cause death, is reckless whether death ensue or not.
(c) If the offender means to cause death, or such bodily injury as aforesaid, to one person, so that if that person be killed the offender would be guilty of murder, and by accident or mistake the offender kills another person, though he does not mean to hurt the person killed.
(d) If the offender for any unlawful object does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
So that is the proposed English code. As Mr Smith then said, there is no mention of omission or “reckless indifference”, and he refers, at about point 9 on that first column, to words in the English code:
“If the offender for any unlawful object does an act which he knows, or ought to have known, would be likely to cause death.”
It would be necessary to ascertain in all cases whether the offender knew, or ought to have known, that what he did would cause death.
Then he complained further about the bill, but trusted the textbooks. He submitted, in column 2 about point 3, that:
the words “which he knew would be likely to cause death or ought to have known it” were preferable to those used in the clause –
So he is seeking an amendment to clause 9. Mr Cohen was the Minister for Justice ‑ ‑ ‑
KIRBY J: Can I just ask you to pause there. He says there:
there was not one word about any mere omission to do any act or to “reckless indifference”.
But at the end of paragraph (b) it says, whether he does or does not mean to cause death –
is reckless whether death ensues or not.
So why is that not? I do not think he is right on that.
MR SMITH: Admittedly, it is not using the word “reckless indifference” but it is using “reckless”, yes.
KIRBY J: It is reckless in the context of whether it causes death or not, so it just seems to be in reckless indifference.
MR SMITH: And, in any event, I am not really trying to justify what he is saying or anything. I am just giving the context.
KIRBY J: This is not one of your forebears?
MR SMITH: No, not as far as I know, your Honour. I have never had any relatives in Tamworth, although I would not mind recording there.
Then we have – Mr Cohen replies and ‑ ‑ ‑
KIRBY J: Who was he? Was he the Attorney ‑ ‑ ‑
MR SMITH: Mr Cohen was Minister for Justice.
KIRBY J: Right.
MR SMITH: On 1098, after giving some examples of cases, there is a comment made down the bottom of column 1:
If a pointsman is so recklessly indifferent to human life as to neglect his duty in such a way that a number of people are killed, is the law at all too stringent which says that death ought to be the punishment for such conduct?
Mr. McLAUGHLIN: The Chief Justice has sentenced an offender to not more than six months in such a case.
Mr. COHEN: That can only have been in a case of mere negligence; not one of reckless indifference to human life such as is contemplated by this clause.
So he is suggesting that mere negligence, that is, causing the death – “mere” might be something that does not help me, but negligence he is talking about there. He said:
Where death results from neglect to perform an act the doing of which is imposed as a legal duty the offence is manslaughter; but where the neglect is the result of a reckless indifference to human life it will be murder under this clause.
He is distinguishing, we submit, the coverage. He is saying that manslaughter is not really covered by clause 9. Well, that is one way you could look at that.
So what he said just above the entry for Mr McLaughlin in the second column of 1098 is that he proposed to insert in clause 14 an amendment:
which may have the effect of removing the objection of the honourable and learned member for Gundagai –
Mr Smith –
The words I propose to insert are –
No act or omission which was not malicious or for which the accused had lawful cause or excuse shall be within the said ninth section.
Mc McLaughlin says something at page – quite a bit, but at the bottom of page 1099, just before “Mr. HUMPHERY”, the first column:
The amendment which the Minister of Justice proposed to insert in the 14th clause had reference to malicious actions, and did not affect this clause.
He is talking about clause 9.
KIRBY J: Just tell us, what was the amendment that the Minister of Justice was proposing to insert?
MR SMITH: He is going to put into clause 14 ‑ ‑ ‑
GLEESON CJ: Six‑tenths of the way down the page in the right‑hand column of 1098.
MR SMITH: That is right. He says he intends to move this amendment.
GLEESON CJ: That is the parliamentary origin of the words we are construing.
MR SMITH: Yes, and at 1103, which I will come to, it shows what the wording of clause 14 was before this amendment was introduced and caused the amendment of clause 14.
KIRBY J: There would have been no problem if that amendment had been “shall be murder” instead of “shall be ‑ ‑ ‑
MR SMITH: That is all they were talking about at the time, really, murder by reckless indifference to human life.
KIRBY J: But the problem is that they said “shall be within the section”?
MR SMITH: Yes, your Honour.
GUMMOW J: The question is what the word “within” means.
MR SMITH: That is right, and that is the whole thing. If it means that it is covered by the bulk of the section ‑ ‑ ‑
GUMMOW J: No, within those words “act or omission” as found elsewhere in the section, and they are found only when you are dealing with murder.
MR SMITH: Yes, that is right.
GUMMOW J: That is what “within” means, it seems to me.
GLEESON CJ: The reference in the section to manslaughter is not a definition of manslaughter?
MR SMITH: Certainly not.
KIRBY J: That is what the marginal note says.
GLEESON CJ: It is not what the marginal note in 1883 said.
GLEESON CJ: It is not what the marginal note in 1883 said.
MR SMITH: No, it is not, and that is really what counts, nor in 1900 which I will bring you to. In any event, I will take you to page 1100, where again Mr Bruce Smith is in the debate and at the first column, about point 4, he is talking about cases justifying the death penalty and then comes on to saying:
That the honorable gentleman’s definition was too wide –
That is the definition of “reckless indifference” to human life, we submit, is too wide and too many people would suffer the death penalty on that definition. Then he says:
The honorable gentleman said that if a contractor erected scaffolding knowing it to be of insufficient strength to bear a certain weight he should receive the punishment of death. He was not altogether prepared to admit that; but what he wanted to show was there might be such cases in connection with scaffolding in which from mere ignorance, or from being too busy, a contractor would neglect to see that the scaffolding round a building was of sufficient strength to bear the weight put upon it. It would be gross negligence, and a jury would be quite justified in finding a man who had omitted such an act guilty of manslaughter; but the honorable gentleman’s definition was too wide from the very fact that it would include cases of that character. He was glad that the honorable gentleman had consented to insert words which would satisfy his contention.
So Mr Smith was satisfied. If I can take you to page 1103. this is Mr Cohen moved – firstly, we have clause 14 as it was then:
No punishment or forfeiture shall be incurred by any person who kills another by misfortune only or in his own defence or in any other manner without felony.
And, of course, if you look at section 14, it is there, that is the second part of section 14 of the 1883 Act. That clause was amended by inserting before the word “no” at the beginning the following words:
No act or omission which was not malicious or for which the accused had lawful cause or excuse shall be within the aforesaid ninth section. And –
and by the omission at the end of the clause of the words, “or in any other manner without felony”. So they chopped out that part and that was carried. So, as I just repeat, the extra words added to section 14 were done to obviate concerns that the definition of “reckless indifference murder” was too broad and might catch cases which were previously caught by manslaughter by gross negligence. The reference in section 14 to “excusable homicide” and to killing “by misfortune” does not indicate that section 14 was intended to apply to homicide generally, both murder and manslaughter.
KIRBY J: But you really do require surgery on the section, as Justice Gummow has suggested, using the words “within this section” to mean within the section so far as the section applies to that particular crime.
McHUGH J: That is not right, is it?
MR SMITH: So far as it applies to murder.
McHUGH J: The strength of your argument lies in two propositions, does it not? First of all, section 14 of the 1883 Act is referring to “No act or omission . . . shall be within the aforesaid ninth section”. And the act or omission which the ninth section is referring to is, first of all, an act that was done or an act that was omitted, et cetera, et cetera, and that is in the definition of “murder” and that seems to be plain enough, but if there was any doubt about it, then if you look at the last words in the definition of “malicious”, malice was not an ingredient of manslaughter as at the time of the 1883 Act.
GLEESON CJ: Which is why there are so many judgments which say that the crime of manslaughter is one for which the punishment is almost infinitely variable because it can range down to something that is not deserving of significant punishment at all.
MR SMITH: And not requiring the jury to enter a verdict.
GLEESON CJ: Yes, and that would be simply wrong if it always required malice.
MR SMITH: Yes, that is right.
McHUGH J: And in fact, under this Act, is it not, the judge could discharge without a penalty, could he not? Is there not a section somewhere? There certainly is in the 1900 Act somewhere.
MR SMITH: Yes, that is right, without taking a verdict, your Honour. So it is less extreme than section 10, the old 556A, of finding the offence proved but discharging without conviction. It is less serious than that because you do not even take the verdict. The trial just fizzles out. I have actually conducted a trial where an application was made for that but the judge took it away from the jury later on, so it does happen. There are of course cases that are borderline manslaughter or accident where that section would come in.
GUMMOW J: It is section 24, is it not?
MR SMITH: Section 24 of the current Act ‑ ‑ ‑
GUMMOW J: “the Judge may discharge the jury from giving any verdict”.
MR SMITH: That is right, and that has its origins in section 13 of the 1883 Act and that, together with the indictment section, 318, we submit, sets a clear message from Parliament at that stage that they did not mean manslaughter to have the added element of malice attached to it. If I could just finish off on that question of whether excusable homicide and killing by misfortune does not apply, we say it does not apply to manslaughter. Kenny, in the 1902 edition, the second edition of the outline - I will just get that.
McHUGH J: Kenny’s editor, Dr Turner, had a rather different view of ‑ ‑ ‑
MR SMITH: Yes, this is the original Kenny, this is 1904. Yes, Turner leads the charge for the argument that malice is required.
McHUGH J: The edition of Kenny that I was most familiar with was the 17th edition but Dr Turner was the editor of that as well.
MR SMITH: That is right, but in this one – I will just get the page ‑ ‑ ‑
KIRBY J: Well, we better have these pages if they are relevant to the history.
MR SMITH: Yes, I will. We summarise what we are going to read, that death by misadventure involved the:
doing [of] a lawful act, and with no intention of causing harm, and with no culpable negligence in the mode of doing it –
So that is what he considered death by misadventure to be. In those circumstances the act of someone that did that or that may have caused someone’s death by misadventure was held excusable.
KIRBY J: Can I tell you the two problems I have with Justice McHugh’s answers, Mr Smith.
MR SMITH: Yes, your Honour.
KIRBY J: The problems are, first, that “No act or omission” in section 18(2)(a) does apply to murder but it could also apply to the offence of manslaughter because manslaughter can include acts and omissions.
MR SMITH: Yes, that is right.
KIRBY J: And, secondly, though it is true the closing words of the general definition of “malice” in the statute have that rider, that is for the use of the word “maliciously” throughout the Crimes Act, and here we are dealing with section 18, which is specific and particular to “Murder and manslaughter”. Therefore, you cannot lift the general into the particular, if those words within this section are intended to pick up both murder and manslaughter, and, therefore, the only textual way you can slip out of section 18 in the case of manslaughter is to say, well, “within the section” is intended to mean within those parts of the section to which it applies, and it only applies to murder and not to manslaughter. But then you would have expected the drafter to say, “shall be murder” – “shall be within the definition of murder”.
MR SMITH: The whole discussion was dealing with murder by reckless indifference to human life, and manslaughter by gross neglect was mentioned as not being caught by that new, harsh section 9, meant supposedly to do away with or clarify malice aforesight, but, according to Mr Smith, covering a much larger range of potential accused facing the death penalty, if convicted, by acts with reckless indifference to human life.
There was no concentration there and there was no intention, we submit – and I know that you go on the words that are actually in the Act, but this is an aid, we submit, which is very relevant, because it is actually debated, and you can see why the change was put in. That may not strictly satisfy the current views of judges of this Court in normal statutory interpretation, but in a case ‑ ‑ ‑
GUMMOW J: These chaps gathered in 1883 – I am sure they were all chaps – they were not purposive people, they were text driven, text attentive, word attentive, and “within” invites attention to words, right? Not ideas, words. And the only words relate to murder.
MR SMITH: Yes.
GLEESON CJ: You start off with the proposition, do you not, that there were not two separate crimes of murder and manslaughter? Justice Lee explained this in a judgment, explaining why manslaughter was always an alternative verdict.
MR SMITH: Yes.
GLEESON CJ: There was one crime, which was a felonious homicide, and there were two forms of it, murder and manslaughter, and the aforesaid ninth section in 1883 was the section that tells you what was and was not murder, tells you what form of felonious homicide was murder, and the other forms were not.
MR SMITH: That is right, but in no way does it seek to explain what is covered by the expression “manslaughter”.
KIRBY J: But it does put “manslaughter” within the section.
MR SMITH: It does – well, it mentions manslaughter, your Honour.
KIRBY J: I am just reading the words of the statute, and remembering what this Court has said over and over again in recent times, that you have to start with the statute.
MR SMITH: Yes.
GLEESON CJ: It involves taking a geographical approach to the text.
MR SMITH: Yes.
GLEESON CJ: There you say, section 9 begins with the word “whosoever” and ends with the word “manslaughter” and everything in between those two words is within it, which geographically is correct.
MR SMITH: Yes, geographically correct but not the intention of the framers of what became section 18(2)(a).
GUMMOW J: They are not textually coincident.
MR SMITH: No, that is right. I think it is at page 108 of Kenny, but we are just confirming that, Kenny, second edition, the 1904 edition, I think it is ‑ ‑ ‑
KIRBY J: Was there a text on the 1883 statute or was that Kenny, the first edition?
MR SMITH: There is a text ‑ ‑ ‑
McHUGH J: Kenny is an English book, but was there not a ‑ ‑ ‑
MR SMITH: Yes, there is a text dealing with the 1884 statute.
McHUGH J: Was there not a book by Oliver and some ‑ ‑ ‑
MR SMITH: Yes, Sir Alfred Stephen and Alexander Oliver. Sir Alfred Stephen as you know was the late Chief Justice. Alexander Oliver was a parliamentary draftsman, and there are passages that I will refer you to there as well.
GUMMOW J: Sir Victor Windeyer said of that book that parents do not always understand their children.
MR SMITH: Yes I know, but I do not know if he was speaking from personal experience.
GUMMOW J: To write a book on the statute you have drafted is not necessarily a good idea.
MR SMITH: It is a truism, but that is true. But he still uses some of the passages from that book to support some of the conclusions he reaches, your Honour. Also in Foster, he refers to his discourse – Chapter 1, page 258, refers to involuntary homicide and merely accidental as:
doing a Lawful Act without Intention of bodily Harm to any Per[s]on, and u[s]ing proper Caution to prevent danger -
So we submit that their references in section 14 to excusable homicide and death by misadventure presuppose that there was no culpable negligence and no unlawful act, and therefore did not apply to involuntary manslaughter by criminal negligence or unlawful and dangerous act.
KIRBY J: What is the context? Is this a commentary on the statute or is it just the common law?
MR SMITH: No, it is not. It is looking at the common law.
KIRBY J: See you keep wanting to go back to the common law, but this Court has said several times recently, that that is a mistaken approach. You have to start with the statute.
MR SMITH: I have gone into the statute in some detail ‑ ‑ ‑
KIRBY J: If you give me a textual basis for supporting the view that no radical change was intended, then I will be sympathetic to this historical discursis, but if you cannot, then you are really stuck with the words of Parliament and courts have to uphold those words and if that is inconvenient, well Parliament can change it.
MR SMITH: That is true but whilst it would be nice to be able to show that the section specifically says this does not apply to manslaughter, none of this material ‑ ‑ ‑
KIRBY J: Well, it does not say that and that is a problem.
MR SMITH: But it does not say that - section 14 ‑ ‑ ‑
KIRBY J: But it says “within this section” and the section includes manslaughter, so on the face of it it slips in and I think really you have driven back to “within this section” to read that down to say, “within this section to the extent to which it is apt to apply it”, so this whole case turns on the preposition “within”.
MR SMITH: With respect, we submit otherwise.
KIRBY J: But in a sense the history is against you because they were very worried that this was an overreach and that it was going to result in the hanging of people, which was not uncommon in those days, for cases where there would be overreach and so the purpose of adding the provisions that are now causing us these concerns 140 years later was to cut back on criminal liability for homicide.
MR SMITH: It was also to exempt those acts of gross negligence that might be caught otherwise by the definition unless you put ‑ ‑ ‑
GUMMOW J: But hang on, section 13 of the 1883 Act makes it clear that you were not hung for manslaughter, were you?
MR SMITH: That is right.
GLEESON CJ: You could be discharged without verdict for manslaughter, so morally lacking in culpability might the conduct be.
MR SMITH: Yes, that is right, and the concern was that without those new words in section 14 people who really were only liable in manslaughter might be caught up by the new section 9.
McHUGH J: The woman gatekeeper on the southern railways.
MR SMITH: That was at page 108 of Kenny, by the way, that part I read.
KIRBY J: Why did it have to be a woman gatekeeper?
MR SMITH: It is unusual, your Honour, in my experience, but I do not know.
KIRBY J: That is because they were more fallible and more likely to err, I suppose, in the views of those days.
MR SMITH: I could not adopt those views.
KIRBY J: You are not going to go there.
McHUGH J: They referred to an actual case.
MR SMITH: Yes, they were referring to cases and they tended to do that in their writing.
McHUGH J: If your argument is wrong, over the last 140 years there are a lot of persons who have served gaol time who should never have been convicted at all.
GLEESON CJ: And a lot of judges have said a lot of silly things about sentencing for manslaughter.
KIRBY J: It would not be the first time that people who were trained in the common law have looked at a statute through the spectacles of the common law instead of looking at what Parliament actually enacted. We have said this many times in recent years.
MR SMITH: I was asked a short time ago about the Criminal Law Manual and Stephen and Oliver. In that manual – I will take you to part of that – I do not know if your Honours have it, pages 9 and 10? Do you have the book? Yes, at page 9, the commentary dealing with section 9 and, of course, the heading “Homicide” deals with all the sections within that Part, which includes section 13, dealing with manslaughter. There is a commentary to section 9:
In order to meet the possible criticism on this clause, that acts perfectly legal, or even laudable, might be “with intent to kill or inflict grievous bodily harm” – or that the death in question might have occurred during the commission of an act (a surgical operation for example) “obviously dangerous to life,” – the first portion of section 14 was introduced. The other sections of this Act relating to Murder are the 316th, 318th, 370th, and 387th.
And I think those sections are set out in the attachment, attached to the chronology. Certainly, some of them are – no, they are not. Well, 316 deals with separate offences in one indictment. It refers at one stage to capital offences. Section 318 is, of course, the indictment for murder or manslaughter, which I have already referred you to. Section 370 deals with trials for murder as to provocation, where there can be a verdict for manslaughter, and 387 – 387 dealt with recording sentences of death:
In every case of Murder, or Rape, sentence of death shall be pronounced – but, in every other case, where under this Act an offender is liable to the punishment of death, the Judge may abstain from passing such sentence and direct such sentence to be recorded – and every sentence, so recorded, shall have the same effect in law as if it had been pronounced in open Court.
The commentary is:
MR BYRNE: Yes, your Honour.
GLEESON CJ: Then section 9 refers to acts or omissions?
MR BYRNE: Yes.
GLEESON CJ: And section 14 refers to acts or omissions?
MR BYRNE: Yes.
GLEESON CJ: How does section 7, in your submission, relate to section 14 in the case of “omission”?
MR BYRNE: In that context, your Honour, it would have to be argued that the failure to act is, in effect, an act in itself, the failure to do what was required to be done.
GLEESON CJ: It is curious, is it not, that within a space of only half a dozen sections or so you have two that carefully refer to acts or omissions and the critical one only refers to acts?
How long do you think you will require for the rest of your submissions?
MR BYRNE: Your Honours, there are a number of matters that ‑ ‑ ‑
GLEESON CJ: I only ask the question for the benefit of the next case in the list, so that I can give a marking, that is all.
MR BYRNE: Yes, your Honour. I would hope about 40 minutes, perhaps 45 minutes.
GLEESON CJ: I will say that the next case will be taken not before 10.45 am. We will adjourn, now, until 10.15 tomorrow.
AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 APRIL 2005
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