R v Lavender

[2004] HCATrans 497

[2004] HCATrans 497

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S220 of 2004

B e t w e e n -

THE QUEEN

Applicant

and

WAYNE KELVIN LAVENDER

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 9.32 AM

Copyright in the High Court of Australia

MR N.R. COWDERY, QC:   May it please the Court, I appear for the applicant, the Crown.  (instructed by Solicitor of Public Prosecutions (NSW))

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MR P.J.D. HAMILL, SC, for the respondent.  (instructed by Legal Aid Commission of New South Wales)

McHUGH J:   Yes, Mr Cowdery.

MR COWDERY:   Your Honours, the respondent in this matter concedes that there are important questions raised by the application.  It is our submission that in the exceptional circumstances of this case special leave should be granted to appeal against the decision of the Court of Criminal Appeal.  The decision gives rise to conflict and uncertainty in the application of the law of manslaughter in this State.  In the two judgments in the majority, differing tests are set out for the proof of manslaughter.

KIRBY J:   Can I ask you this.  There is no doubt that the matter is potentially very important and I can understand your arguments for special leave, but is there any other way that you could get the matter before the Court?  Could you, for example, contesting the ruling in this case in a subsequent case where the issue arose, seek a decision by the Court of Criminal Appeal under section 5F of the Criminal Appeal Act and if discontented with that, if they followed this case, bring them out into the High Court then?  It is the fact that this is the fourth and potentially the fifth case where the respondent stands in jeopardy that is the disquieting feature of the matter.

MR COWDERY:   Your Honour, yes, that course would be open, there is no doubt about that.  The situation in respect of this particular respondent, however, is that the alternative count on the indictment of dangerous driving causing death under section 52A has not been disposed of by the Court of Criminal Appeal, so that is another aspect personal to this or individual to this particular case which perhaps should be taken into consideration as well.  The course that your Honour suggests would be open.

KIRBY J:   What is going to happen to that residual matter if we refuse special leave?

MR COWDERY:   Nothing, your Honour.  It will just go into limbo.

KIRBY J:   So the respondent is then freed of any jeopardy?

MR COWDERY:   Yes.

CALLINAN J:   He is serving a term of imprisonment now, Mr Cowdery?

MR COWDERY:   He has served a substantial portion of the non‑parole period, yes.

CALLINAN J:   Mr Cowdery, something like what Justice Kirby suggested happened in…..the point of law came up to the Court.  I know there was a possibility of a retrial…..at first instance…..but I must say for myself four trials seems rather like The Bonfire of the Vanities…..not only in money but also in agony and ordeal ‑ ‑ ‑

MR COWDERY:   I cannot argue against that, your Honour; it speaks for itself.  Of course, it is regrettable the way in which it has come about, but that has now passed and there would not be ‑ ‑ ‑

CALLINAN J:   Could I just understand this, that each of the judges in the majority stated a different test.

MR COWDERY:   Yes, that is right.

CALLINAN J:   And then you had the dissenting judgment.  Nothing stands as an authority then, does it?

MR COWDERY:   Except for this, your Honour.  Last week, perhaps by way of example, Justice Adams in a trial in Port Macquarie in a case of manslaughter by unlawful and dangerous act applied his own judgment in preference to the judgment of this Court in Wilson, his own judgment in Lavender.

KIRBY J:   You are trying to be provocative now.

CALLINAN J:   That is a little unorthodox really ‑ ‑ ‑

MR COWDERY:   But I suppose that that sort of difficulty, there is scope for that sort of difficulty whether special leave is granted by this Court or whether the other course is taken.  It does not make a lot of difference.  There are still going to be some difficulties encountered along the way in the months or years that it may take to resolve the matter.

CALLINAN J:   Because if he were retried he would have to be resentenced?

MR COWDERY:   Yes.

CALLINAN J:   And how long does he have to serve of the current term?

KIRBY J:   I think he has served 12 months of an 18 month non-parole period, is that not right?

MR COWDERY:   It is approximately that figure, your Honour, yes.

KIRBY J:   I toyed with the idea of whether a condition could be imposed that he not be required to serve the extra time but then that would become a theoretical case and run into problems which were discussed in Mellifont, so I do not think that is feasible.  I think we have to face very squarely the fact that this is a fourth jeopardy but as against that, it is a very important, arguably important legal point and it potentially affects many trials.  Also I suppose, we should keep in mind a person died in the case here, a young person’s life was extinguished and, therefore, that the matter is important for the community, the people involved, and for the general state of the law. 

CALLINAN J:   On the other hand, at the moment, he stands acquitted and he has served 12 months for an offence of which he has been acquitted. 

KIRBY J:   Is there anything you can say that helps us over the four jeopardies?  That is the essential problem.  Justice McHugh was in Rogerson, Justice Deane’s statement is very strong and very clear and I agree with it.  It warns us not to mouth utterances about about jeopardy, double jeopardy and quadruple jeopardy and then to ignore them when we come to the test.  I suppose that would be so if the matter came before the Court as on an appeal.  The question is whether we should allow the matter to go through now because of the importance and for that matter to be argued fully as on the appeal.

MR COWDERY:   Your Honour, I cannot argue against the fact that there is another way of addressing the legal issue that does not impact on this particular respondent and if those considerations are foremost in your Honours’ minds then a decision will go that way.

KIRBY J:   They are not most in my mind, they are in my mind as they must be but, as against that, this is an important point that is going to be repeated in trials and, in a sense, the actions of the respondent were extremely dangerous and extremely reckless and led to the death of a young person.  It is hard to believe that somebody would drive a front-end loader to defend sand, risking the life of a human being.  It is almost unbelievable to me.

MR COWDERY:   Yet the Crown would submit that that is, in effect, what has happened and there is a high public interest in resolving the question of liability once and for all and that could only be done in this particular case by a grant of special leave and the hearing of an appeal and the consequences that might follow from that.

CALLINAN J:   How old were the children, Mr Cowdery, approximately?

MR COWDERY:   Approximately 10 and 11 and, I think, 14 or somewhere round about there, your Honour.

McHUGH J:   The boy who was killed was 13, was he not?

MR COWDERY:   Yes.

CALLINAN J:   Large, noisy and slow vehicle ‑ ‑ ‑

KIRBY J:   Chasing the boys around because the employer said you have to keep these boys out.

MR COWDERY:   There were the four boys between 11 and 14 and the deceased was 13.  He kept driving at a time when he knew that they were there and he had lost sight of them and struck a tree and the boy was killed. 

KIRBY J:   How often does this problem arise in murder/manslaughter cases?

MR COWDERY:   Well, it will arise in most, if not all, cases of manslaughter by criminal negligence.  It has now been encountered in a case of manslaughter by unlawful and dangerous act.  That may not be quite so prevalent in the future but certainly by criminal negligence which is – I cannot give your Honour figures but there is a good number of such cases litigated every year.

KIRBY J:   Can I ask you this bluntly, if the matter is granted special leave, is it still available to the respondent to argue that because there is an acquittal the Court, as on the appeal, will not set the orders of the Court of Criminal Appeal aside, or is this the moment of truth when that question has to be resolved because once special leave is granted, the Court must resolve the point of law upon which special leave is granted unless it revokes special leave.

MR COWDERY:   Your Honour, I would submit the former.

McHUGH J:   It cannot be though, can it, because the order we make would be an order setting aside the order of the Court of Criminal Appeal.  Once we set aside that order it sets aside the acquittal.

KIRBY J:   But that is not done now, that is done as on the appeal.  It is done when we dispose of the entire matter.

MR COWDERY:   So the argument will still be open on the appeal is the submission that I am making, the first point that Justice Kirby raised.

McHUGH J:   On an appeal, if we were to uphold your appeal, then we have to allow the order.

MR COWDERY:   Yes, your Honour, I am not disputing that but the granting of special leave does not determine that question.

McHUGH J:   No.

CALLINAN J:   I suppose the respondent could say that there should have been an acquittal on other grounds than a notice of contention.

MR COWDERY:   Yes, that would be open.

KIRBY J:   You have been very enigmatic today, Mr Cowdery.  You have let us do all the talking.  It is so unusual in this Court.

CALLINAN J:   You have been very frank and fair about it, Mr Cowdery.

MR COWDERY:   Your Honour, the Crown always, of course, tries to be fair.  It is my submission that the points that are raised are really quite straightforward, quite obvious, from the judgments as set out in our summary of argument.  It is really a question for the judgment of the Court, in my submission, to weigh the competing considerations and to make ‑ ‑ ‑

McHUGH J:   I think we understand your submissions.  We have had 20 minutes of argument from the Court interrupted by counsel occasionally.

MR COWDERY:   If your Honour pleases.

McHUGH J:   Yes, Mr Byrne.

MR BYRNE:   Your Honours, in our submission, the matters that have been discussed between your Honours and my learned friend establish that this matter is not a suitable vehicle for the grant of special leave.  As my learned friend opened to your Honours, we concede that the points that the case raises are important points, points that need to be determined but whether this case is the appropriate vehicle is another question.

KIRBY J:   Yes, but how else is it going to get to this Court?  If trial judges are going to be bound by the majority view in the Court of Criminal Appeal, the minority view does not really assist.  You are not here to support the minority view, as I understand it, and therefore, until this Court dealt with it or legislation was clarified, the orders and decision and reasons of the Court of Criminal Appeal are going to apply to what, one would think, would be many criminal trials and we are told that one was as recent as last week.

MR BYRNE:   What your Honour has just said, in our submission, raises two reasonable approaches to the problem as the Crown perceives it to be.  In very large measure the dispute between the different views expressed in the Court of Criminal Appeal in this matter was a result of the interpretation of what is rather curious legislation.  The terms of section 18 of the Crimes Act (NSW) are open to different interpretations. It has only been commented upon by this Court once in what has to be conceded to be an obiter remark in a joint judgment of Justices Toohey and Gaudron in Royall’s Case where it was observed that section 18 appears to require that both the crimes of manslaughter and murder are crimes where there needs to be a malicious element established. 

KIRBY J:   That may be the ultimate decision of the Court.  That is, at least, conformable with the general principle that you have to have the element of intention.

MR BYRNE:   That was the decision of the judges in the majority in this case.

KIRBY J:   Well, that may win the day.

MR BYRNE:   It may, but ‑ ‑ ‑

KIRBY J:   But we have to face the fact that it does affect a lot of trials and it is said to reverse what was the understanding of the previous law, that a person had been killed, that the conduct of your client was, to say the least, dangerous and that he has served two-thirds of the time, non-parole period, that he would serve if the acquittal were set aside, and that the balance is of the order of six months so it is not as if we are looking at a life sentence that is the result of the quadruple jeopardy.

MR BYRNE:   The possibility of legislative clarification of the issue is one that is available, and could be readily and quickly available.  The other potential solution to the problem is to litigate the issue in one of these cases.  I do not know what happened ‑ ‑ ‑

McHUGH J:   That can only be done through 5B, can it not?

MR BYRNE:   Well, if there was an acquittal, certainly.

McHUGH J:   Yes, you would have to get an acquittal, then the Crown would have to ask the Court of Criminal Appeal to look at the question, clearly whether the Court of Criminal Appeal would consider itself bound by this decision and then it would come up here.

MR BYRNE:   Maybe a court of five Judges could sit on the matter but if there was an acquittal that approach could clearly be taken.  If it is a matter that is frequently arising the Parliament could address it relatively quickly.  There are other reasons ‑ ‑ ‑

McHUGH J:   It arises almost on a weekly basis, does it not?  Manslaughter trials are not rare and this decision seems to me to apply to every manslaughter ‑ ‑ ‑

MR BYRNE:   It should be said, in our submission, that manslaughter trials are relatively rare in the context of offences committed with motor vehicles.  There is a specific provision, as your Honours are well aware, which relates to dangerous driving occasioning death and that is the normally ‑ ‑ ‑

McHUGH J:   Culpable driving.

MR BYRNE:   It used to be called culpable driving, it has changed now.  It is dangerous driving occasioning death but the same provision.  It is relatively unusual for manslaughter to be used in what used to be called in the old days motor manslaughter cases. 

McHUGH J:   I appreciate that, but this decision would seem to apply to all manslaughter cases, does it not? 

MR BYRNE:   All those based on criminal negligence.

McHUGH J:   Yes.

MR BYRNE:   The frequency of those I cannot tell your Honour but, certainly, it is a well‑known offence and trials would be certainly relatively frequent, but the manner of solution of the problem, there are available other means. 

There are a couple of other matters that we would ask your Honours to consider on the question of whether this is a suitable vehicle.  There is, in the summary of argument that has been prepared for the respondent, reference to the fact that this point was not effectively taken in the Court of Criminal Appeal by the Crown.  That is the point that section 18, and specifically that section which provides that no act which is not malicious falls with section 18, the point was not taken in the Court of Criminal Appeal that that did not apply to manslaughter.  I appreciate that it is a relatively new approach but it has been said, and your Honour Justice Kirby has referred to what Sir William Deane said in Rogerson’s Case and what your Honour, the presiding judge said in Rogerson’s Case about the merit ‑ ‑ ‑

McHUGH J:   That is so, but in Benz, back in 1989, the Court granted special leave even though the daughter had been acquitted by direction of the Queensland Court of Criminal Appeal.

MR BYRNE:   Yes, that was a case which involved an important question of evidence.

McHUGH J:   Of evidence, yes.

MR BYRNE:   The issue here is one where there are alternative means of solution but, as I understand the position in Benz, the issue was litigated all the way through from the trial through to the Court of Appeal.  This is a matter where in the court of trial the Crown prosecutor initially conceded that the so-called defence of honest and reasonable mistake was available to the respondent in the circumstances and, even in the Court of Criminal Appeal, the point is very clearly then made that the defence of honest and reasonable mistake was, according to this Court’s judgment in Jiminez, clearly available on the lesser charge of dangerous driving occasioning death and it is a somewhat incongruous result, in our submission, that where that defence was available to the lesser charge of dangerous driving it was not available to the more serious charge of manslaughter.  Now that, in itself, is an incongruous result which, again, underlines perhaps the ‑ ‑ ‑

KIRBY J:   I am far from convinced that the majority in the Court of Criminal Appeal are wrong but that is not, ultimately, the question we have to ask.

MR BYRNE:   I accept what your Honour is saying that there are important issues raised.

McHUGH J:   I am afraid I am a victim of my past because until Royall it never occurred to me that manslaughter did not have its common law meaning.  That was the general understanding in the profession.

MR BYRNE:   It falls because of what is, as I said earlier, a curious legislative provision which is headed “Manslaughter and murder defined” and it appears to define each of those two charges and it is unique in Australia and, as far as we are aware, unique in the English‑speaking world where manslaughter and murder are defined in the same legislative section.  In every other place there are separate sections to define those two charges.  That is really where the problem arises because there is that general provision applying to everything in the section that nothing which is not malicious shall fall within it.

The legislation is set out, perhaps most conveniently, the judgment of Justice Giles in the Court of Criminal Appeal, his Honour’s judgment commences at page 83 of the application book, and section 18 – it is in various places but for present purposes at line 50 on page 83 of the application book, “Murder and manslaughter defined”.  Murder is defined by section 18(1)(a).  Manslaughter is defined by 18(1)(b) but then (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 -.

that is, within the section defining both murder and manslaughter.  That is a unique provision in the Australian legislative schemes defining these well‑established criminal offences.

KIRBY J:   That is why I say I am far from convinced that the majority were wrong in the construction and if the matter is granted special leave because of its public importance and the other considerations, and that construction is upheld, your client’s acquittal is confirmed, there is no jeopardy except that which he has faced by the risk, a contrary conclusion might be made, notwithstanding the explicit and unusual provisions of section 18(2).

CALLINAN J:   Then he will be tried for dangerous driving, I suppose.  That will have to be…..Is there not an outstanding charge?

MR BYRNE:   The dangerous driving charge, at the moment, has not been dealt with.

CALLINAN J:   But he is going to be in jeopardy anyway even though by then he will have served 18 months, by the time our decision comes down.

MR BYRNE:   Observations were made in the Court of Criminal Appeal, in particular in the judgment of Justice Hulme in which he said that he did not consider the availability of substituting a verdict under the dangerous driving charge because that was clearly a less serious offence than that of which he had been convicted.  He would have received a sentence of some significantly less size and, therefore, he has effectively served what might otherwise have been the sentence.  So whilst the dangerous driving charge has not been dealt with, it would be unlikely to be proceeded with. 

Can I say, in answer to what your Honour Justice Kirby said, if the Court were, of course, of the affirmative view that it could predict that the appeal by the Crown would ultimately be unsuccessful then that of course is, in our submission, a sound reason for refusing the grant of special leave because it needs to be an exceptional situation for the Crown to be granted special leave in the first place, we would submit a doubly exceptional situation where the point has not been taken in the earlier proceedings and if there is a considered view of the Court that the Crown would ultimately be unsuccessful on the appeal itself then that is a very sound reason, in our submission, for refusing special leave.

As I am reminded by Mr Hamill, there were in the Court of Criminal Appeal real issues apart from the interpretation of section 18 and its application to the circumstances of this case and that included the directions given by the trial judge to the effect that whatever belief was held by the…..in your Honour’s Court was immaterial – that is the word that was used - in the jury’s consideration of whether or not the Crown had made out its case that his conduct was so unreasonable as to amount to the serious crime of manslaughter.  There were significant misdirections.

KIRBY J:   As Justice Callinan pointed out, you would have your rights to file a notice of contention if you considered that the decision below can be upheld on some other ground than the matter that the Crown wishes to challenge in the appeal.

MR BYRNE:   In our submission, those decisions were decided in our favour at least by the majority in the Court of Criminal Appeal and they would have resulted in the appeal being upheld in any event.

KIRBY J:   But they would not lead to an acquittal, they would lead to a retrial.

MR BYRNE:   They were new trial points, exactly, but whether or not a new trial would have been granted and whether it would now be granted at this late stage, having regard to what has happened in the meantime, is a question ‑ ‑ ‑

KIRBY J:   Normally we leave that to the prosecutor.

MR BYRNE:   Of course.

KIRBY J:   Are there any conditions, if the Court were minded to grant special leave, that you can think of that would palliate the jeopardy that your client faces?

MR BYRNE:   No, your Honours.  I listened to the discussion between your Honours and my learned friend and it seems to us, with respect, that if the Court were to uphold this appeal then the inevitable consequence, the unavoidable consequence, would be that the conviction in the trial court would be restored because the Court of Criminal Appeal’s decision would be set aside.

KIRBY J:   In Benz it was a life sentence, was it not?

MR BYRNE:   It was a murder case.  I cannot remember precisely, I think it was.

McHUGH J:   Yes, it was a life sentence.  Ultimately, the Court upheld the order of the Court of Criminal Appeal in respect of the daughter and confirmed the order for a new trial in respect of the mother. 

CALLINAN J:   Mr Byrne, this is legal aid, is it not?

MR BYRNE:   It is a legal aid matter.

CALLINAN J:   All at the public expense.  Does the client have to make any contribution at all to legal fees?

MR BYRNE:   A very small contribution.  As your Honour is aware he endured a number of trials but it has been a legal aid matter, as I understand it, from the very first day.

CALLINAN J:   But, nonetheless, he has to make some contribution.

MR BYRNE:   Yes, but not a substantial one.  I am told his contribution was $150.

CALLINAN J:   He has not earned anything for a long time.

MR BYRNE:   No, he has been out of work, of course.  Mr Hamill reminds me that there may perhaps be some mechanism – I am not aware of it ever having been used but that does not mean it is not available – for the Crown, if the Court considered it to be a matter of concern, if the Crown were to undertake to recommend some sort of exercise of the royal prerogative of mercy so that, because of the unusual circumstances of this case and the fact that the respondent, as he is, has served a significant period of the period of imprisonment that he was ordered to serve it would be unfair, in all the circumstances, to return him to custody, but that is a novel arrangement.

KIRBY J:   I understand that submission but it does not really arise at this stage, does it?  It only arises in the event that special leave were granted,

that the appeal were allowed, the orders set aside and the conviction restored and in that event the Court may or may not say something – and very occasionally we do say something – but generally we take the view that that is for the Executive Government, not ‑ ‑ ‑

MR BYRNE:   I accept that but I think that the reality is that if this Court were to uphold this appeal then the only course available to the Court would be to restore the conviction.

KIRBY J:   Yes, that would follow. 

MR BYRNE:   Your Honours, those are our submissions.

McHUGH J:   Yes, thank you.  Yes, Mr Cowdery.

MR COWDERY:   Your Honour, the only matter that I wish to make any further submission on is the question of section 18 and the importation of malice or the other requirements in section 5 of the Act.  As set out in our summary of argument, it is our submission that manslaughter, contrary to the heading on section 18, is not in fact defined in that section.  What the section does is to define murder and to leave all other punishable homicides as manslaughter which, in itself, is not accurate because in section 22A, “Infanticide” and section 52A, dangerous driving causing death, on one view at least, could be argued to be punishable homicides and they are not manslaughter and malice certainly is not a requirement for an offence under section 52A.  So there are a number of significant issues in the interpretation of section 18 and the question of whether or not it applies to the offence of manslaughter, which is also of very high importance.  That is the only additional matter that I wish to mention.

McHUGH J:   Thank you.  The Court will adjourn to consider this case.

AT 10.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.09 AM:

McHUGH J:   Yes, there will be a grant of special leave in this matter and I think it is necessary to extend your time – you are a day out of time, I think.

MR COWDERY:   That is so, your Honour.

McHUGH J:   The Court will grant an application for an extension of time and there will be a grant of special leave in this matter.

AT 10.09 AM THE MATTER WAS CONCLUDED