Raju v The Queen

[2011] HCATrans 299

[2011] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S299 of 2011

B e t w e e n -

KANIAPPA RAJU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 OCTOBER 2011, AT 11.48 AM

Copyright in the High Court of Australia

MR P.D. LANGE:   May it please, your Honours, I appear on behalf of the applicant.  (instructed by Matouk Joyner Solicitors)

MR D.U. ARNOTT, SC:   May it please your Honours, I appear for the respondent with MS M.L. RABSCH.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Lange.

MR LANGE:   Your Honours, I require an extension of time.  I understand it is not opposed by the respondents.

GUMMOW J:   Very well.

MR LANGE:   Thank you.  Your Honours, it will be accepted right at the outset of my submissions that this Court has on numerous occasions said that an applicant who contends that a jury’s verdict was unreasonable bears a heavy burden when applying for special leave to appeal.  In our submission, those comments, of course, applicable to a suggestion that a Court of Criminal Appeal simply erred in the results are, of course, to be inferred quite naturally, but it is our submission that this case raises not simply the issue of whether the Court of Criminal Appeal erred in its ultimate conclusion but we say there is an issue of general public importance in the manner in which the Court of Criminal Appeal arrived at its decision.

Before taking your Honours to the summing‑up of the learned trial judge and contrasting it with the approach adopted by the Court of Criminal Appeal could I perhaps make some introductory general remarks which will illustrate what we say is this general point of concern?  In doing so I would ask the Court to bear in mind that when considering ground 1, that is, the ground of unreasonableness, the Court of Criminal Appeal did not at any stage make reference to the intention of the applicants or how that intention might be proved.  Indeed, your Honours will have noted the comments by the Court of Criminal Appeal that this was an unusual case, nobody having been discovered, there being no objective evidence as to the manner in which the death was said to have occurred.

GUMMOW J:   Now, what do you say about the respondent’s point at page 175, namely, that this is hypothetical really?

MR LANGE:   Well, with respect, it is not, your Honours, and I say that for this ‑ ‑ ‑

GUMMOW J:   In any event, it was not raised in the Court of Criminal Appeal.

MR LANGE:   Your Honour, I have one principal response to that argument, and it is this.  It was raised certainly at trial by counsel for the accused.  That appeared both in counsel’s closing address and also in the summing‑up of her Honour Justice Bell.  Moreover, the Court of Criminal Appeal must have been conscious of this issue because at the outset of the judgment, in particular on ground 1, the Chief Judge who drafted the leading judgment stated that he had considered – and this is at appeal book 141, paragraph 65 of the Court of Criminal Appeal’s judgment:

I have considered all of the evidence at the trial and the submissions made to the jury and to this Court.

Plainly, the Chief Justice, in my submission, must have been aware of this concern, both on the part of the applicant’s counsel at trial, and indeed also of the trial judge and your Honour has no doubt discerned from the summary of argument that there were debates between the Bench and the Bar table as to what to do with the alternative of manslaughter simply because the Crown case on the question of intention was a wholly circumstantial one.

In my submission, it is not simply hypothetical but was a matter squarely raised at trial, and although perhaps I would have to concede not developed extensively by counsel or indeed at all by counsel in the Court of Criminal Appeal, the Bench must have been aware of this difficulty concerning the question of intention.

HEYDON J:   Can I just raise this with you?  Page 164 is your draft notice of appeal and ground 2(b) says that:

the only reliable evidence of the appellant’s intention before the jury was an ostensible motive, from which, as a matter of law, the jury could not have concluded beyond reasonable doubt that the Appellant had possessed the requisite intention ‑ ‑ ‑

MR LANGE:   Indeed.

HEYDON J:   You rely on a statement of Justice Kirby in De Gruchy v The Queen which says:

Yet even if a motive can be proved . . . it will not, of itself, be sufficient –

He went on to talk about motives which are –

so remote or unlikely that it makes any conversion of emotion into action an unlikely possibility.

Those words do not fit with the facts in this case.

MR LANGE:   The words your Honour refers to there do not, but again, if I could take the Court to the other comments which are referred to in the summary of argument at page 170 of the application book?  His Honour Justice Kirby stated – this is at about line 40 of the application book:

A person may hate another but be unwilling, or unable, to convert such hate into action or be restrained by fear of detection and punishment.

We would submit that such comments apply wholeheartedly to the case before the Court today.

HEYDON J:   Well, the applicant was not restrained by anything in terms of a fairly constant history of violence towards the deceased.

MR LANGE:   Well, again, your Honour, it is reflective we say of nothing more than a motive perhaps of hatred, that motive being fuelled by the victim’s suggestion that she would remove the children from the family home, but it is no more than that.  The Crown do not rely upon that evidence of their relationship as tendency evidence going as proof of the actual intention of the accused.  The evidence it appears would have been led solely for the purpose of motive.

HEYDON J:   Well, Justice Bell directed the jury – on page 39 she turned to the third element of the offence, which was intention, and on page 41 she said:

The circumstances that the Crown points to commenced with the troubled relationship between the two -

The violence was part of that troubled relationship.  She excluded from consideration the lies and the flight evidence, but she left to the jury this other evidence.

MR LANGE:   Indeed.  She did, your Honour, but again we would say in the absence of any direction to the effect that the jury could take it into account as something other than motive – and we would say it is only relevant as motive evidence – then there was only this one head of evidence available to the jury; it was not a separate head of evidence.  One can query it in this fashion.  How traditionally is relationship evidence admissible?  This is a question which has been dealt with by this Court on innumerable occasions. 

Relationship evidence may contradict, for example, an explanation given by an accused, or it might be relied upon to explain a lack of complaints, or the like.  It may also be demonstrative of motive on the part of an accused.  However, it is not admissible in any other circumstance on the question of intention, we say, unless it were admitted as tendency evidence and there was no such application made by the Crown.

HEYDON J:   What about a case like Wilson’s Case at common law?  Did the husband shoot the wife or was it some accident with a rifle or - the relationship was taken into account to demonstrate an intention to kill.

MR LANGE:   In my submission, of course each case must be considered on its own and Wilson is a case which has many parallels to the present case given again the absence of the body, but in my submission there, in Wilson’s Case, the evidence was not simply of motive but there was other evidence going beyond motive and I need to take your Honours to that.  It was not simply that because he had moved out in effect I think with his new partner that it was – that was considered by itself sufficient to demonstrate intention and that was not…..to this Court.

We put the case on the following basis, namely that the Court of Criminal Appeal, we say, did not consider the evidence which was admissible solely on the question of intention and your Honours will have in mind the very fact that the question of intention was not considered separately from the other elements, namely the death and the causation of the death.

We do not suggest that the Court of Criminal Appeal was not conscious of its requirement to independently assess the evidence, and I have in mind there, your Honours, Justice Heydon’s comments in SKA and although they are in dissent they of course have some force which is that this Court would not likely infer that a Court of Criminal Appeal was not aware of its obligation to independently assess the evidence. 

What we say is demonstrated by the, as I have referred to it, holus bolus approach by the Court of Criminal Appeal, it has considered that all of these heads of evidence which were admissible certainly in respect of elements one and two were similarly admissible in respect of element three, namely the question of intention.  In doing so, we say, it has entered into a role which was not that of a court of error but rather that of a reviewing court.  It would look at all of the evidence, we say, free from the connection to her Honour’s summing‑up and would then decide whether or not on the basis of all the evidence, again free of her Honour’s ruling in relation to the summing‑up, the applicant was rightly convicted.  We say that was in error.

Your Honour, this is where we see the point of public importance, namely the approach to be adopted by an intermediate court of appeal independently assessing the evidence.  That has not been the subject of debate.  It is clear that a court of criminal appeal does have that duty but what is the content of that duty?  We say that there is a difficulty which arises from this Court’s expression of opinion in SKA. 

Your Honour Justice Gummow was in the majority there and enjoined the reasons which said that the Court of Criminal Appeal was not constrained by the trial judge’s direction concerning the confinement of the Crown case to a number of days, that is three rather than a month.  That was also adopted by Justice Crennan in her judgment.  This contrasts, however, we say, with the expressions of Justices Callinan and Gaudron in Gipp, and I hope your Honours were provided with the extracts from those cases, where, in particular, Justice Callinan stated at paragraph 171 of the report which appears on page 164:

It almost goes without saying that the independent assessment of the relevant evidence has to be made in the context of the whole trial, including rulings on evidence and directions to the jury.

We submit that if one takes the reasoning of the Court in SKA to its natural conclusion, that would lead to a redefinition of the role of an intermediate appellate court since it would no longer be considering firstly, the evidence before the jury, and secondly, the reasoning process by which the jury must have approached the question of whether or not the applicant was guilty. 

What in effect Justice Bell did in directing the jury in respect of the third element was to make a direction under section 136 of the Evidence Act that the evidence was admissible in respect of the first two elements, that is whether or not the victim had been killed by the accused, and secondly and foremost, whether she was dead, but not in relation to the third element.  We say the Court of Criminal Appeal, in effect, abandoned that ruling on evidence and allowed evidence of consciousness of guilt to influence its decision in the determination of all three elements.  It is for that reason we say that the Court of Criminal Appeal erred in its approach to the first ground of appeal raised by the applicant.

Your Honours are already aware of the distinctions drawn between the various passages which distinguish the two first elements from the third element.  Could I also in response to your Honour Justice Heydon’s issue taken up with me also take the Court to application book page 30.  The very last line from there reads as follows:

In support of this second ingredient – 

that is the question of whether the applicant murdered the victim – 

again the Crown points to the evidence of the troubled relationship and points to evidence that the Crown identifies as a motive to kill Aruna Verma, namely the fear that she was about to decamp with her children –

et cetera, et cetera.  In my submission, again, this comment demonstrates that really the issue of the troubled relationship could only be considered together with questions of motive which we say by themselves are insufficient to ground a conviction by a reasonable jury acting reasonably if they were to follow her Honour’s directions. 

The Court will of course also note that there are two grounds or rather one ground subdivided into two separate sections, and although the Crown to an extent now appears to place reliance upon the purported confession, in my submission the approach taken by the Court of Criminal Appeal was entirely proper which was, in effect, to disregard it and the Court will have noted that the question of the confession was not addressed at all by the Court of Criminal Appeal when dealing with ground 1.  It simply put that to the side, having previously dealt with it in its summary of the facts in case at trial and having pointed out the very real difficulties that a jury would have had in relying upon that particular piece of evidence.

That was also the way in which her Honour Justice Bell approached the confessional evidence with the jury, pointing out that one must approach it with extreme caution, as indeed the Crown had accepted in its closing address.  But there being, as I submit, no other evidence other than motive before the Court of Criminal Appeal which was capable of grounding an inference that it was the applicant who killed his wife with an intention to kill his wife, we submit that the Court of Criminal Appeal must have erred in its approach to the question of whether or not the verdict was unreasonable.  It must have done so because it determines the issue free from the constraints of the summing‑up provided to the jury by the learned trial judge.  Had it taken that into account, we say it must have inexorably arrived at the conclusion that the verdict was unreasonable.  I note my time is up, unless I can assist any further.

GUMMOW J:   Thank you, Mr Lange.  We do not need to call on you, Mr Arnott.

There are insufficient prospect of success on the grounds on which the applicant seeks special leave to appeal to this Court to warrant a grant of special leave.  Special leave is refused.

The Court will now adjourn until 10.15 am on Tuesday, 29 November in Canberra.

AT 12.05 PM THE MATTER WAS ADJOURNED