Reg v Ross; Reg v Annakin; Reg v Heeney; Reg v Hennessey; Reg v Kucler; Reg v Melville; Reg v White; Reg v Eaves; Reg v Parker (S205-88 - S210-88; S69-89 -

[1989] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S205-S210 of 1988

B e t w e e n -

THE QUEEN

Applicant

and

WILLIAM GEORGE ROSS

GARRY GEORGE ANNAKIN

ROBERT JOHN ALLEN HEENEY

JOHN FRANCIS HENNESSEY

RAYMOND KUCLER

TONY ALLEN MELVILLE

Respondents

Office of the Registry

Sydney Nos S69-S71 of 198.9 ·

B e t w e e n -

THE QUEEN

Applicant

Ross

and

JOHN KEITH WHITE
GLEN ANTHONY EAVES

TERRENCE WILLIAM PARKER

Respondents

Applications for special

leave to appeal

C2T 1 /1 /ND 1 8/8/89

MASON CJ
BRENNAN J
DEANE J
DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 AUGUST 1989, AT 10. 17 AM

Copyright in the High Court of Australia

MR R.O. BLANCH, QC: May it please the Court, I appear with

my learned friend, MR P.G. BERMAN, for the Crown.

(instructed by ~he Solicitor fof Public Prosecutions)

MR J.L. GLISSAN, QC: If the Court pleases, I appear with my

learned friends, MR T.M. HEALEY and MR P. KINTOMINAS,

for - perhaps, it is easier if I say, Your Honour,

all the respondents other than Melville.

(instructed by Richard J. Jankowski for the ,:~spondents-
Ross and Parker; instructed by White, Murray &

Carew for--tl}e respondent Annakih; instructed by

Trevor Nyman and Company for the t'espondents- Heeney

and Kuc!er; instructed by Bryden, Doherty & Shead

for the respondent Hennessey; instructed by

Bernard Brassil for the respondents White and Eaves)

MR G.R. JAMES, QC:  May it please the Court, I appear with

my learned friends, MR A.M, MARTIN and MR S.J. ODGERS,

for the respondent Melville. (instructed by

Christopher Murphy & Co.)

MASON CJ:	Yes, Mr Blanch.
MR BLANCH:	I hand up an outline of submissions together

with a schedule setting out the present position

of each of the respondents.

C2Tl/2/ND 2 8/8/89

Ross
MASON CJ: Yes, thank you,Mr Blanch. Mr Blanch, is it really

necessary .that all these application books should

have been produced? Having regard to the point that

is raised I would have thought that there was a great

deal of unnecessary material and duplication involved

in these application books.

MR BLANCH:  I think that may be right, Your Honour. In the

first instance when the point arose it was thought necessary to reproduce the entirety of the summing

up because of the possibility that, in the course

of the summing up, words may have been used and it

may have been necessary to look at the juxtaposition

of words. As it has turned out it is not necessary

to go to the appeal books and having looked at the matter now it would not be necessary for the whole

of the appeal books to have been done in that way.

MASON CJ: Yes. Yes, Mr Blanch.

MR BLANCH:  If Your Honour pleases. The appeal arises out of

a trial, the facts of which in very short compass

were that on 2 September 1984 there was a fight at

the Viking Tavern in Sydney where two bikie groups -

one called the "Comancheros" and one called the

"Bandidos" - had gone to a meeting to swap bicycle

parts; there had been bad blood between those two

groups; the Crown case was that each anticipated

the other would be there; that there was likely to

be trouble; the members of the groups who went

there went knowing that other members were armed

and that an affray involving the guns was likely to

occur.

As a result of the affray which did occur seven people were killed, six being members of those

groups and one bystander. The trial itself commenced

on 28 April 1986 and concluded on 12 June 1987 and

there were murder convictions recorded against each

of the respondents. On 23 November 1988 the

Court of Criminal Appeal overturned the murder

convictions and in place substituted convictions for

manslaughter. (Continued on page 4)

C2T2/l/DR	3	8/8/89
Ross

MR BLANCH (continuing):  The short point of the overturning

of the convictions appears in the judgment of the
Court of Criminal Appeal and, as Your Honour the Chief Justice indicates, really volume IV of the

application books is the one reaey relevant book and this application to all intents and purposes

can be dealt with on the basici of the Court of

Criminal Appeal's judgment.

Between pages 846 and 852 of the application

b0ok - - -

DEANE J:  Just looking at what ycu have handed up, most of these

people-have already be2n released.

MR BLANCH:	Yes, Your Honour.
DEANE J:	What are you asking the Court to do?
MR BLANCH:	Your Honour, it is our submission that the Court of

Criminal Appeal was in error in quashing the murder

convictions and in substituting manslaughter

convictions. We appreciate that an application by th~

Crown in any event in these circumstances is a highly

unusual matter, but it is our submission that the

determination of the Court of Criminal Appeal was

erroneous; the murder convictions were correct, and

the murder convictions ought to have remained.

DEANE J:  When was the matter disposed of in the Court of Criminal

Appeal?

MR BLANCH:  On 23 November 1988, Your Honour.

DEANE J: What was the reason for the great delay there?

MR BLANCH:  In the matter coming to the Court of Criminal Appeal?

DEANE J: Yes, or for the delay, or does it seem that there is a greater delay because of the backdating of all the

sentences?

MR BLANCH: Yes, I think that is so, Your Honour. As Your Honour

would appreciate, the offences themselves occurred in

September 1984. There were then committal proceedings which lasted for a very long period of time because

of the complexities and length of the cases and various

accused were in custody for long periods of time.

DEANE J: Well then, I will stop interrupting you, but might I ask

what is it that you ask the Court to do?

MR BLANCH: To restore the murder convictions, Your Honour.

C2T3/l/FK	4	8/8/89
Ross

DEANE J:	And in relation to sentences?
MR BLANCH:	To remit the matter back to the Court of Criminal

Appeal for the question of the appeals against the

sentences to be determined there. There were on foot

in the Court of Criminal Appeal appeals against the

severity of sentences for the murder convictions and

that would be a matter that would need to be looked at

by the Court of Criminal Appeal.

DEANE J:  So, you would be asking us to restore the

sentences for murder and then if they could persuade

the Court of Appeal that those sentences were

excessive for murder - - -

MR BLANCH:  Yes, Your Honour. If this Court were to restore

the murder convictions, the respondents should be

left in the position where they are not in any way

prejudiced with the appeal that they had on foot in

the Court of Criminal Appeal against the severity of

their sentences.

DEANE J:  But, then, unless they could succeed on that, you

would be asking that they go back to jail?

f"lR BLANCH:	Yes, Your Honour.
DEANE J:	That is relevant to the leave application.

MR BLANCH:  Yes, it is, Your Honour. And, of course, I

appreciate the hiEhly unusual nature of that

application and the ramifications that flow from that

and how much against general princip.le that request is.

However, from the other point of view and the point

that I would submit to Your Honour, the simple fact is

that the Crown's submission is that the murder

convictions were perfectly proper; there was no

justification for quashing those convictions and
substituting manslaughter.	And, if that be the case,

then the only option, in our submission, is to restore

those murder convictions.

McHUGH J:  There is nothing unusual about this Court restoring

murder convictions. I mean, it has even been done

for people under sentence of death. It was done in

LEE' s case, it ·was done in BROWN from South Australia.

C2T4/l/JH	5	8/8/89
Ross

MR BLANCH:  Yes, it certainly has been done, Your Honour.

There is nothing technically wrong with doing that
and, in our submission, it is the appropriate thing

to do if the conclusion is that the Court of Criminal

Appeal was in error in quashing the murder convictions

to begin with.

The unusual feature of this case is rather the fact

that sentences have been substituted and because

of the backdating of the sentences so many of these

people have been released.

McHUGH J:	What happens to the other grounds on which the
present respondents failed in the Court of Criminal here?
MR BLANCH:	Your Honour, if there are matters that are dealt

with by the Court of Criminal Appeal, then that

is a matter for the Court or a matter for applications

by the respondents as to those grounds. If there

are grounds that are sought to be raised that were

not dealt with by the Court of Criminal Appeal

because of the fact that the Court dealt with this

ground and substituted manslaughter verdicts, then

those matters, in our submission, would properly

be remitted to the Court of Criminal Appeal for

the Court of Criminal Appeal to hear those grounds,

make a determination in the ordinary course without

asking this Court to sit as an intermediate appellate

court to hear those grounds.

BRENNAN J: Mr Blanch, looking at the sentences as were imposed,

they were imposed I take it on the footing of the

facts as the jury must have found them, having

regard to the direction; that is, manslaughter
in circumstances where the accused had been found

as having the mental state appropriate to the

summing up. Now, if the mental state was somewhat different

in the way in which you argue for, one might think that that would not necessarily lead to a dramatic

alteration in the appropriate level of sentence

and if these men have now undergone what was regarded

as the appropriate sentence on the footing of the

summing up, it seems a large step to put their

present liberty in jeopardy.

MR BLANCH:  Well, that is the largest step and the most unusual

step about this application, to actually require

them to go back to gaol once they have been released.

If I take Your Honour to be saying that generally

C2T5/l/SH	6	8/8/89
Ross

speaking the same sentences for murder could be

imposed as the sentences that were imposed for

manslaughter, in general terms, that is true except

for the fact that the method of avoiding the

mandatory life penalty in New South Wales for

murder is to pass through a gateway to show that

the culpability for the offence was substantially

diminished so that there is a first step to overcome

before the sentence is left at large.

I do not make any submission about that and,

in general terms, I would incline to the view that

if there were a way of disposing of the matter

without them having to be required to go back to
gaol after their release, then there is much to

be said for that course being adopted.

BRENNAN J:	Yes.
MR BLANCH:	As I was putting to the Court, the short point

of the upsetting of the murder conviction appears

between pages 846 and 852 of the appeal book.

At the bottom of page 846, at line 27, the Court of Criminal Appeal said this:

The nature of the test to be applied in

respect of the knowledge of an aider and

abettor as to consequences of his act

was argued before his Honour by all counsel

on an application made at the end of the

Crown case for verdicts by direction.	We
have earlier set out the direction which

his Honour used time and again during the

course of the summing up, in order to describe the degree of foresight required to constitute the mental state of reckless indifference,

namely, "realise that he might well cause

death" or "realise that death might well

result".

(Continued on page 8)

C2T5/2/SH	7	8/8/89
Ross

MR BLANCH (continuing}; It is that test that was applied

by His Honour that the court held infringed the

directions that this Court had given in the case

of CRABBE.

MASON CJ: Now, Mr Blanch, the discussion that has already

taken place, I think, indicates that we should

deal with your application as an application for

special leave in the first instance. The difficulties

that face you have already been identified and

you have, of course, answered the comments that

have been made by various members of the Bench

but I think I should say to you at this stage that

in the first instance we shall require you to satisfy

us that this is an appropriate case for the grant

of special leave before we embark upon hearing

the substance of the argument that you want to

put on the fundamental point.

MR BLANCH:  Yes, Your Honour. In anticipation of precisely

that course being adopted, Your Honour, you will

see that the next part of the outline, in fact,

deals with the reasons that special leave should

be given.

DAWSON J:  What is the basis, Mr Blanch, on which special

leave would be given to the Crown? What are the
circumstances in which the Court will grant special

leave to the Crown?

MR BLANCH:  Your Honour, it would require a problem, a case

that was of major significance in the administration

of the criminal law and where the result in the

Court of Criminal Appeal had clearly infringed
what the law should be so that a case has appeared

where there has been a major error in the Court

of Criminal Appeal in overturning what would otherwise

be proper convictions in the public interest.

DAWSON J:  It really is a pressing need for clarification

of the law?

MR BLANCH:  Yes, Your Honour. I would accept that, Your Honour.

There would need to be a special need for clarification

of the law because, in any event, a Crown appeal

of this nature is an extremely unusual event and

I think this is the first such Crown appeal from

New South Wales for a very long time.	I cannot
remember when the last -

DAWSON J: There have, been others. There is orcONNOR and

DARBY and the other ones that have been mentioned.

MR BLANCH:  Yes, there have been others, Your Honour, but

this is the first such case from New South Wales for - I carnot remember when the last case was.

C2T6 / 1 /ND	8	8/8/89
Ross

But it is our submission that that precisely is

the problem in this case. It is a problem of special

importance and without dealing with point 2(a)

which deals with the power of the Court to hear

the matter,the Court clearly has a power to grant

special leave and hear the matter. It is a question

of showing that it is a case where the Court should

do so.

In our submission, the Court should do so

because the problem that has been raised in this

case is a matter of major significance in the

administration of the criminal justice system,

particularly in New South Wales, but it is a problem
that has ramifications elsewhere as well and

particularly in common law jurisidictions and I

think Victoria is the only jurisdiction now in

Australia with a common law definition of murder

but it certainly raises that problem.

But it raises the problem, also, in the code

States because in BOUGHEY the Court was dealing

with a statute that described the state of mind
required for murder by recklessness as a foresight

that death was likely to occur and that formulation

or formulation very similar to it is a very common

formulation. They all arise from the suggested

Stephen codes of the 19th century and I think they

are common to all jurisdictions in Australia.

BRENNAN J:  I do not think that is quite accurate, are they?

The others are taken from the Griffith code.

MR BLANCH:  Yes, Your Honour, that is so. However, I have

always accepted the theory that the Griffith code,

Your Honour, owed some of its inspiration from

the controversies generated by Stephen .. in the late

19th century.

BRENNAN J:  I would have thought the Italian code as well

and a number of - - -

MR BLANCH:  Yes, Your Honour, I think the Ceylon

code, the New· Zealand code and the Canadian code.

But the particular problem is this - simply in

those four points that I have outlined in the outline

of submissions.

(Continued on page 10)

C2T6/2/ND	9	8/8/89
Ross

MR BLANCH (continuing):  The probability test, or the use

of the word tfprobability" in CRABBE is itself a

vague concept. To use the word "probably" to a

jury in summing up in a reckless murder case itself

imports problems because the word "probably"

involves, to some extent, an evaluation of chances

an evaluation of the possibilities. Everyone

accepts - it has been said by this Court and I would

think that it would generally be accepted as a matter

of common sense that a person who embarks on a course

of conduct does not ordinarily assess the chances of

what is going to happen - he certainly does not

assess it in percentage chances. This Court has
warned against that or has indicated that in the

cases referred to and it is even more artificial to

expect a jury to sit and assess what an accused does

and whether the accused did, in fact, appreciate

a certain percentage chance of death resulting from a

reckless act, for example.

McHUGH J:  But, that law has been using .. that test for over

a hundred years, has it not? Stephen formulated the

test in terms of probability, what, in 1877 or so?

MR BLANCH:  Yes, Your Honour. And, for the last hundred years

people have been arguing about what it has meant.

It has been applied in entirely different ways in - - -

DEANE J:  But has not the Court said that, in effect, really,

if there is any problem about "probability", that

'likely' is all right?

MR BLANCH:  Well, yes, Your Honour and, in fact, in this case

this judge used the word "likely" on a number of

occasions.

DEANE J:  But then he used some other expressions which do

not mean "likely".

MR BLANCH:  Yes, "death might well occur" - well, Your Honour,

therein lies another problem.	I could point to you
three or four cases including BOUGHEY where this

Court has said that the expression "might well occur"

is the same as "likely" and this Court in the joint

judgment in BOUGHEY said that. There is a New Zealand
case of GUSH where that was said; there is a couple

of other cases where that was said.

McHUGH J:  But in ordinary speech, surely "might well"

indicates a lower degree of persuasion than

"probably"?

MR BLANCH:  Well, Your Honour, therein lies the problem and it

is the problem that I would put to this Court that is

the problem that very badly needs addressing when we

are talking about summing up to jurors, in the

C2T7/l/JH	10	8/8/89
Ross

ordinary course of events, about a very common

occurrence. What Your Honour says may very well be

true but the basic point really that I would wish to

make about the whole argument is this -is going back

to the point that everyone accepts, and this Court

has certainly said, that is is not appropriate to

invite a jury to assess the chances, or the percentage

chances, of an event occurring. The Court approves

the use of a word like "likely" or "probably"; a jury

given the word "probably" or given the word "likely"

will sometimes think that the word "probably" means

"more probably than not"; yet, no one is allowed to

explain to the jury that that is not necessarily so or talk in terms of "percentage chances" because to talk in terms of "percentage chances" is misleading.

In other words, what the courts have done by

prescribing a cest like "probably" or "likely" is

to prescribe a vague term that can have a meaning

between a rule as opposed to a remote possibility at

end of the scale. 1'And the courts have not only said	one end of the scale to a moral certainty at the other
that the term be used, and it is applied in a very
artificial fashion as in this case, for example, where the judges use the term "might well" and the Court of Criminal Ar,-peal says, "The judge should have said probably r. there is a degree of unreality in
practical terms of talking about that when charging a
jury in a case such as this.

DEANE J:  But that turns very much on the particular summing up,

does it not, in that if the court says "probably" or

"likely" are the correct directions, obviously in

many sunnnings up "might well" will do n6 damage at all?

It is only when in a particular sunnning up, a "might

well" gives a different flavour to the overall effect

that you will be in the area of error.

(Continued on page 12)

C2T7/2/JH	11	8/8/89
Ross

MR BLANCH: That could be so, Your Honour, but the only instance

that I can imagine where that would be so would be

in a case where there was a mixture of "probablys",

"might wells" and "likelys". But in a case like

this where the judge has generally stuck to one

formulat~on - the Court of Criminal Appeal pointed

out one occasion where he had strayed into "possibly",

did not point out another three occasions where he

had used the word "likely" - - -

DEANE J:	But where my question - it may not have sounded like a question, but it was - was leading is: What would you be asking us to do:to abandon "probably" and "likely" or to say "might well" can now be added to "probably" and "likely" as beyond attack?
MR BLANCH:	Your Honour, I think that you have already said

that "might well" can be added to - - -

DEANE J: Well then, that is what you would be asking us to

do:  to say "might well" will never be open to

objection?

MR BLANCH:  Your Honour, I would hope that the Court would be

prepared to do something more than say that because,

otherwise, somebody will be coming back here every

month with another formulation - "a good chance",

"a grave risk" - and asking that that be added to a

series of categories. What I would ask the Court to

do is to abandon those phrases that import an

evaluation of the chances altogether and to accept

a formulation that is either at one end or the other

which does not involve such an evaluation.

BRENNAN J: What "a real risk"?

MR BLANCH:	Yes.
BRENNAN J:	But that is impossible, is it not, because we are

speaking, in this context, not of the chances of

something	happening but of a state of mind and we
are speaking of an accused's knowledge of the future.

MR BLANCH: Yes, Your Honour.

BRENNAN J: So, if we are speaking of that which may or may

not happen, because it is in the future, we can only

speak about the degrees of expectation.

MR BLANCH:  Yes.

BRENNAN J: Well, then, how can you hope to avoid some question

of degree in the formulation of the test?

MR BLANCH:  You cannot altogether avoid some mention of degree,

Your Honour, but the way, in our submission, to do

it where it is meaningful and simple is to adopt the

real possibility - a "real" as opposed to a 11 remote 11 formulation where the accused foresees there is a

C2T8/l/DR	12	8/8/89
Ross

or "fanciful" or "theoretical" possibility. That in

itself I - - -

BRENNAN J:	The path to certainty is by epithet.
MR BLANCH:	Yes, Your Honour.  I appreciate that that in

itself imports a degree of evaluation but it is

the minimum degree of eva,luation that it is possible

to use. The other end of the spectrum is where the

English have now come to with their assessment of

common law murder where they have abandone~ virtually

altogether, the test of foresight of consequences

as a separate test for murder and relegated it to

the sphere of evidence to prove intent.

In the latest judgment of the Court of Appeal

in England, they have said that the foresight to be

relevant really is foresight of a moral certainty

of death. The way that has developed is this: In

CRABBE's case this Court went back to Stephen's

formulations and, in particular, to his second

formulation where an accused does not act foreseeing

that death is a probability and, nevertheless, goes

ahead with it. That second test at common law.

has now been restricted in England to a very narrow

category indeed and the English situation now is

not consistent with the decision of this Court in

CRABBE.

On the other hand, there is the further

complication that the two cases so far that have

been dealt with in this Court:

BOUGHEY from Tasmania, dealing with the statute and

CRABBE dealing with the common law as it then applied

in the Northern Territory - neither of them apply to

the New South Wales statutory definition.

(Continued on page 14)

C2T8/2/DR	13	8/8/89
Ross

MR BLANCH (continuing):  The New South Wales statutory

definition is a definition that came into existence

in 1883 at the time in the late 19th century
when the debate raged as to what should constitute

murder and, in the course of that debate, the

New South Wales Act was passed, drafted by Stephen

who was a cousin, I think, of Sir James Fitzjames Stephen, and

deliberately done with a view to elucidating the

categories of murder. So that what has happened in

New South Wales is that we have been caught with a

definition of murder t-hat encapsulates the
thinking of the . late 19th century and includes in it the

expression "recklessness".

For example, one of the areas of debate about

that is this, that that second formulation of Stephen,

the first being with intent to kill, the second being

where there is no intent to kill but where the

accused goes ahead with an act foreseeing death as a

probable consequence. That has come over a period

of years to be referred to in general terms as

"reckless murder", and this Court did so in PEMBLE and

LA FONTAINE.

In view of the decisions of the House of Lords

as to that particular category, it is questionable

at this stage whether - I am sorry, this Court has

certainly decided the situation, although in CRABBE

the Court did not use the word "reckless" to describe
that head of murder, but it is now open to question as
to whether it should have been described as "reckless

murder" at all. The use of the word "recklessness" in

1883 brings into the New South Wales CRIMES ACT certain

statutory categories of murder, and the more particular

question that arises in this case, leaving aside the
general question, is whether CRABBE or BOUGHEY is the

appropriate authority governing the test to be applied

in New South Wales under section 18, and that is a live

issue bearing in mind the use of the words "reckless
indifference to human life", because the concept

of "recklessness" includes in it, particularly when it

is included in the statute, a foresight that a result

may occur and not a foresight of probability. The House of Lords, I think, in CALDWELL dealt with

the question of malice, and the way it was put by the

House of Lords in CALDWELL, in general terms, was

simply this; where "reckless" is used as a term to

define "malice" it means a foresight of possible

consequences. In that case they were dealing with a

later statute where the law was being changed and

concluded that "reckless" in general terms, when not

used as a term to define "malice" did not require any

foresight by the accused so there was an objective test.

BRENNAN J:  By "foresight" you mean a conscious animadversion to

to the risk?

C2T9/l/FK	14	8/8/89
Ross

MR BLANCH:	Yes, Your Honour.
BRENNAN J:	But not a negligent failure to advert to the risk?

MR BLANCH: That is so, Your Honour. A negligent failure to

advert to the risk in a homicide case would result in

a verdict of manslaughter, and that is the essential

difference between manslaughter and murder. In

NEWBERRY in England which has lenerally been

accepted and, I think, quoted with general approval

although the point has not come up in this Court,

and in NYDAM, in Victoria, which once again has been
quoted with approval, but the point once again has not

come up in this Court, the courts have generally

accepted that the test for manslaughter by an

unlawful, dangerous act, or manslaughter by recklessness,

the tests are objective in both cases.

The difference between mm.slaughter and nurder by

recklessness is IIIUrder by recklessness requires an advertence by the

accused to the possible consequences and the use of the

term "reckless" in the New South Wales statute in

1883 is precisely for that reason, and that is why

it is important, or significant in our submission,
for that question to be looked at in the context of

the New South Wales legislation.

(Continued on page 16)

C2T9/2/FK	15	8/8/89
Ross

BRENNAN J:  So that any knowledge by the accused of the

possibility of death, no matter how remote, is

sufficient to establish the mental element under

section 18?

MR BLANCH:  No, Your Honour. Your Honour said, "no matter

how remote"?

BRENNAN J:	Yes.
MR BLANCH:	I postulate, Your Honour, the test that when

one speaks of a possibility what is being referred

to is a real as opposed to a remote possibility.

I have already accepted that that involves a degree

of evaluation. I put it to Your Honour on the

basis that it involves a minimum degree of evaluation

and that is the proper and preferable test. But it is a proper test for a number of reasons. It

is a proper test in New South Wales because

recklessness is used as a concept in the statute

and it needs to be clarified as to whether that

statutory head of murder in New South Wales comes

within what is said by this Court in BOUGHEY or
whether it comes within what this Court said in

CRABBE and, for that matter, whether there is any

difference between what this Court said in those

two cases.

And I am aware, of course, of what Your Honour

said in BOUGHEY but, once again, I would make this

general point about that, that it was also said

in BOUGHEY, I think, by the former Chief Justice

that it would be drachonian to convict a person

of murder on the basis of the foresight of a

possibility but that then raises a further problem

in the sense that a principal in the second degree

or an accessary or an aider and abetter or an

accessary before the fact can be convicted of murder

because they foresee death as a possibility simply
because they embark upon a common purpose where

they see the incident causing death as a possible

incident of that common purpose. It raises the question, at least, if two joint

venturers go out, both of them appreciating death

as a possible consequence of what they are doing

and the principal in the first degree fires the

gun and kills someone he cannot be convicted of

murder because if the test be foresight of probable
consequences and yet the aider and abetter may
be guilty of murder because he foresaw death as
a possible consequence and that is the test according
to JOHNS and approved by the Privy Council that

is the test to be applied there.

The answer to that may be very quickly that

you cannot convict the accessary of an offence

C2Tl0/l/ND	8/8/89
Ross

greater than you have convicted the principal.

But then the House of Lords has said that that

is not so in HOWE's case where - the simple

illustration of a woman who hires two men to

go out and bash up her husband causing injury.

They were convicted of malicious wounding, she

was convicted of malicious wounding with intent

and her conviction was quashed. And the House

of Lords said that that was wrong, that her intent

was greater than theirs.

So that the accessary before the fact can,

in fact, be convicted of a greater offence than

the principal in the first degree. The answer

to that may be - it is yet to be decided in the

cases, but a sensible answer to that may be, "Well,

you can't convict the accessary before the fact
unless you can prove that the mens rea of the

accessary before the fact is greater than the mens

rea of the principal in the first degree.	But
it does raise a serious problem about that.

Those, generally, are the points that, in

our submission, do require special leave and, basically,

they are set out in those four points in the outline.

MASON CJ:	Yes, that is all you wish to say on this aspect?
MR BLANCH:	On special leave.
MASON CJ:	Yes, Mr Glissan.
MR GLISSAN:	If Your Honours please. Your Honours, I hand

up an outline of the argument that is proposed to be

advancedto Your Honours.

MASON CJ:	Yes.
MR GLISSAN:	The first part of that deals with the matter

that Your Honours are presently considering.

(Continued on page 18)

C2Tl0/2/ND	8/8/89
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MR GLISSAN (continuing):	I think the material that occurs

beyond page 1 is unlikely to be of any interest

to Your Honours except in the most abstract sense

in relation to the question of whether special

leave should be granted. That latter material,

if I might deal with that very briefly first,

simply adverts to the fact that there were a

number of other points agitated before the

Court of Criminal Appeal in which they ultimately

did not find it necessary to pronounce, which would

have at least had an effect similar to the effect

involved in the ground which they did find in favour
of the appellants, that is to say, the reduction
of the conviction of murder to manslaugher,had

the appellants succeeded in relation to those grounds.

It is unlikely, Your Honours, that those would

be agitated before Your Honours in the first instance

if Your Honours saw fit to grant special leave.

Your Honours, it is difficult in the light

of the argument that has already taken place in

the Court to go beyond what has been said. Much

of what has been discussed comprises the material

on which we rely as suggesting that this is simply

not a case which ought properly to attract special

leave. There are the discretionary matters that

were raised by Your Honour Mr Justice Deane relating

to the fact that these men have been, for the greater

part, released and released into the community

for a very substantial period of time.

The central issue that the Crown seeks to

raise in this appeal is a semantic one. It would

involve, were Your Honours to grant special leave,

so far as New South Wales at least is concerned,

overruling the decisions of this Court in CRABBE

and BOUGHEY. The test of 11 probable 11 ,if I can

simply use that word,as the test for "reckless

murder" has an established history that goes back,

at least, to LA FONTAINE and before - or perhaps,

PEMBLE - but the fact is it has not occasioned

the difficulty that the Crown suggests at any time in the past.

McHUGH J: There is a Victorian Court of Criminal Appeal case on

it in 1961-, is there not?

MR GLISSAN:	Yes.
McHUGH J:	JAKAC or something - - -
MR GLISSAN:	JAKAC, Your Honour, yes.
McHUGH J:	Yes.

C2Tll/1/SH	18	8/8/89
Ross

MR GLISSAN:	Yes, and that is really about the last time. It has not been brought forward as an issue to
this Court by the Crown before. It has never
been suggested that "probable" is not the
appropriate test to be used.  Where this Court
has discussed "probable" as opposed to "possible",
it has always done it in the context that those
are words which carry an ordinary meaning which is
readily apparent to jurors and that jurors ought to
be left to determine those separate and several issues and, indeed, that is really the thrust of
the argument that we seek to advance so far as
this case is concerned.

As Your Honour said earlier, "might well"

carries with it a lesser impact in terms of

conclusion than does the word "probable". How

much less significant seems, in our respectful

submission, to be entirely a matter within the

province of a jury. What is required is that a

jury ought properly to be instructed that the test

they apply is,"Did he turn his mind to the probable

consequence or did he form the view that the death
that was to flow in the event was a probable
consequence", not that "it might well happen";
not that it was "possible" and, to that extent,

we certainly would not seek to be heard to suggest

that "likely" and "probable" were different but

"might well" and "probable" certainly are.

Your Honours, that in our submission disposes

of the appeal. It disposes of the application

for special leave. It raises not a point of law

at all. It raises, if it raises anything, a point

of semantic construction and this Court has time

and again over the course of the last five or six

years given guidance as to what the proper test

is to apply. I could perhaps, Your Honours, say

something, I suppose, about the matter that -

MASON CJ: Well, do not do so unless you feel there is a need

to do so, Mr Glissan.

MR GLISSAN: Well, Your Honour, the only thing I was going to

say about it was that it has been suggested that
"probable" and "probability" carry with them some

shade of meaning which is inappropriate.

(Continued on page 20)

C2Tll/2/SH	8/8/89
Ross
MR GLISSAN (continuing):	So far as that is concerned,

"probability" is an entirely different animal and

ought not to be introduced into sunm1ings up to
deal with this question. It ought simply to be

left as we would put it to Your Honours,on the basis

that the Court has formulated it in both CRABBE and

BOUGHEY and that establishes a law in a clear way

which we all understand and which ought not to be

interfered with. I do not want to say anything else

about the matter of special leave, if Your Honours

please.

MASON CJ:  Thank you, Mr Glissan. Yes, Mr James?

MR JAMES:  May it please the Court. Might I hand up our

outline?

MASON CJ:	Yes, thank you. Are you proposing to address?
MR JAMES:	Very shortly, Your Honour.
MASON CJ:	Yes.
MR JAMES:	Your Honours, the citation of MEATON is in respect of those matters that appear - and, of course, it
was an entirely different case and turned on what
was either seen as a question of pleading or
interpretation or CONSTITUTION interpretation - but,
in the judgment of the Chief Justice, Your Honours
Justices Wilson and Dawson at page 365, conm1encing
four lines from the top:

it will become necessary to consider

whether a miscarriage of justice has

resulted and only if that question is

answered in the affirmative should the

sentence be set aside.

It is doubtful whether a miscarriage of

justice would have occurred in the present

case if the sentence had been allowed to

stand. However, the respondent has now been

released from prison after serving the

sentence imposed by the Court of Criminal

Appeal (two years) less remissions - a

sentence which, when compared with the

minimum custodial sentence imposed by the

learned trial judge (three years) cannot be said to be manifestly inadequate. In these

circumstances it is appropriate to grant

special leave to appeal but to dismiss the
appeal.

And, Your Honours go on to refer to the practice

would have to result in the showing of a miscarriage

of justice. Mr Justice Brennan and Mr Justice Deane

at page 370:

C2Tl2/l/JH	20	8/8/89
Ross

It is not a necessary conseuqnce that the

present appeal be allowed. The Court of

Criminal Appeal understandably followed

the commended practice and reduced the

sentence. The respondent has served so

much of the substituted sentence as he

was required to serve by law and has been

released from custody. It would be unjust

now to make an order returning him to

custody. Although the question of law

that is raised would warrant the grant of

special leave, justice will best be served

in the very special circumstances of this

case by refusing special leave. We would

refuse special leave to appeal.

Now, Your Honours, in our submission, .this case

does not raise any matter for special leave and, indeed,

in CRABBE itself, this Court, having referred to New

South Wales, Victorian and South Australian authority

at the passage cited at page 450 in CRABBE, (1985)

156 CLR 469, commencing at the bottom of that page:

(Continued on page 22)

C2Tl2/2/JH	21	8/8/89
Ross

MR JAMES (continuing):

It should now be regarded as settled law

in Australia, if no statutory provision

affects the position, that a person who,

without lawful justification or excuse, does

an act knowing that it is probable that

death or grievous bodily harm will result,

is guilty of murder if death in fact results.

It is not enough that he does the act knowing

that it is possible but not likely that death

or grievous bodily harm might result.

Your Honours, there is no statutory provision

in New South Wales which adversely affects that

conclusion, in our submission. Further, this Court

in CRABBE. specifically adverted to the New South

Wales position when it considered LA FONTAINE which is to be found cited at page 468 of the

judgment; NYDAM in Victoria; PEMBLE in the Northern

Territory; SERGI, JAKAC and WINDSOR - the Victorian

cases; and HALLETT in South Australia.

What is sought by the present application is

to deal with the situation where the trial judge

has used a formula in a summ.ing up considered as a

whole, whic~ the Court of Criminal Appeal was of the

view did not adequately bring home to the jury the

concept.

McHUGH J: What do you say to Mr Blanch's point that those

cases have really got no application in New South

Wales and, indeed, at page 470 in CRABBE this

Court said that a comm.on law definition has got

nothing to do with reckless indifference?

MR JAMES:  Yes, the comm.on law definition was squarely a

definition of malice. One did not talk about

"intent" or "reckless indifference", one talked

about "malice". The concept of malice has evolved.

The concept of malice is, however, contained in the

New South Wales CRIMES ACT in addition to the word

"reckless" and the word "indifference". What is

require4 and what has always been required in New

South Wales, is both the comm.on law plus the reckless

indifference if there is any difference. That, at least, involves either a state of actual intent to do the crime or such an intention or mental state

on the part of the accused as to the advertence of

the probability which, as my learned friend has

pointed out, in the United Kingdom as far as intent

is concerned, has reached the point of moral certainty.

There has never been any reason in New South

Wales for differing from that basis. CRABBE merely,

as it were, adjusts the common law to the New South

Wales position, in our submission.

C2Tl3/l/DR	22	8/8/89
Ross

McHUGH J:  But the statutory definition in New South Wales of

"maliciously" also includes "recklessly" does it not?

Section 5?

MR JAMES:  No, Your Honour. That is a very peculiarly drafted

definition. It says that malicious includes:

Every act done of malice ..... or -

not done of malice and thereafter gives an extended

definition which include "recklessly", "indifferently"

and "wantonly". The second part of it appears to be

very much in the same position as the "maliciously"

considered in CALDWELL - the case to which my learned

friend took an expanded definition for use in

construing those statutory crimes, not common law

crimes, included in the CRIMES ACT which include

"malicious" or "maliciously" as part of their

definition.

But the definition of "murder" in New South

Wales is, in one sense, not really a definition at

all. It says:

Murder shall be taken to have been committed -

it is really expressing the circumstances in which

the common law crime will exist in New South Wales.

In that sense it is perfectly understandable that

it would include in subsection (2) the requirement

that no act is within this section which is not

malicious. One cannot say of any of it that it is

felicitous in drafting considered now in hindsight

and one can say that it has occasioned some problems

but for a very long period of time it has been thought

that what it refers to is, in so far as one is
talking about that state of expectation animadversion -

I use the full expression - to the probability that death may occur.

Now, to leave out the "probability" and to leave

in the use of "possibility" as this summing up did

in place; "likely" as it did in place; "may well

result"; "might well result", may well result in a

jury being totally confused. And, if that was as

far as the Court of Criminal Appeal went then they

were entitled, and did, intervene on that basis.

Your Honours, the correctness or otherwise of CRABBE

would not decide this case, in our submission,

unless my learned friend were to be arguing that

really "possibility" has to be the test for all.

If one is dealing with expectation expressed

in this way, in our submission, what the Crown is

really seeking to argue is that "may well" which,

in normal terms, expresses a range of possibilities-

well short, in our submission, of probability, but

still a range - should be substituted for what has

been understood as the law hitherto.

C2Tl3/2/DR	23	8/8/89
Ross

MR JAMES (continuing): That was not argued in the Court

of Cr imina 1 Appeal. It was simply put that "may

well" was an adequate expression of probability

and with that the Court of Criminal Appeal disagreed.

If that is the short point then this is not a case, in our submission, for special leave.

Your Honours, the only other matter to which

we would go are the concluding words of what was form of a summing up, in the concluding words at
said by the Judicial C.Ommittee in CHAN WING-SIU

page 179:

In cases where an issue of remoteness

does arise it is for the jury (or other

tribunal of fact) to decide whether the risk

as recognised by the accused was sufficient
to make him a party to the crime committed

by the principal. Various formulae have been

suggested - including a substantial risk,

a real risk, a risk that something might well

happen. No one formula is exclusively preferable;

indeed it may be advantageous in a summing

up to use more than one. For the question

is not one of semantics. What has to be brought

home to the jury is that occasionally a risk

may have occurred to an accused's mind -

fleetingly or even causing him some deliberations -

but may genuinely have been dismissed by him

as altogether negligible. If they think there

is a reasonable possibility that the case

is in that class, taking the risk should not

make that accused a party to such a crime

of intention as murder or wounding with intent

to cause grievous bodily harm. The judge

is entitled to warn the jury to be cautious

before reaching that conclusion; but the law

can do no more by way of definition; it can
only be for the jury to determine any issue

of that kind on the facts of the particular case. The present case not being in that class,

their Lordships agree with the Court of Appeal

that the attack on the summing up fails and

will humbly advise Her Majesty -

accordingly.

That is simply, as this is, a case involving

an examination of the adequacy of a summing up.

A task peculiarly suited to the Court of Criminal

Appeal. This case does not raise any conceptual

or legal problem in our submission and CHAN WING-SIU,

in any event, was a joint design case - common

purpose case, as were MILLS and JOHNS.

C2Tl4/l/ND	24	8/8/89
Ross

BRENNAN J:  But this case is not a common purpose case?

MR JAMES :	, No , i t is not .	Th is i s pr inc i pa 1 in the firs t
degree.

BRENNAN J:  You say the Crown never put this case as a common

purpose case?

MR JAMES:  The Crown sought to put it as a common purpose

case at trial and, indeed, it was during the case

at trial that this Court decided SINFIELD, MILLS

and MILLS. However, for the Crown to have put

it as a common purpose case or an accessarial case

raised the very grave problem of self-defence,

provocation and such like in the principal in the

first degree. And that is why at the end of the

day the Crown accepted the proposition that all
could be liable as principals in the first degree

if they participated in the fight from which the

shooting occurred. And thus "affray" became a

fight, as it ended up.

foundation for the principal in the first degree. the

But the Crown, having accepted that that

was one basis on which it could be put, in essence

accepted the then state of law that for a principal
in the first degree probability was essential;
the direction, however, was "may well" or "might

get the concept through to a jury with sufficient

well", in essence, and the Court of Criminal

clarity for us to say that the summing up was

sufficient."

BRENNAN J:  Parties other than principals in the first

degree who -were convicted were not convicted as

participants in a common purpose exercise but as

assisting or encouraging the principals in the

first degree.

MR JAMES:

By the participation in the fight and - - -

BRENNAN J: Well, however.

MR JAMES:  However you got to it, there had to be that

participation in the fight and once you have the
participation in the fight you have them as a

principal in the first degree, assuming the fight

was the act causing death, therefore they were

entitled to the probability direction. That,

indeed, raises a matter going to the question of

special leave which is that in the event that special

leave were to be granted and the appeal upheld it

would be sought on behalf of the respondents to seek special

leave on the question of causation and the adequate definition

of causation in the case. That raised an entirely different issue.

C2T14/2/ND 25 8/8/89

Ross

BRENNAN J: Mr James, before you go to that, I may have

misread the summing up in the relevant part.

I took it that what the trial judge was directing

the jury was that before there could be a conviction

of a person as a principal in the first degree they
had to be satisfied not that he had taken part

in the fight but that he had shot, causing death,

and that the other parties were liable to conviction

only upon the footing that they had assisted or

encouraged, whether by their presence or by taking

part in the fight or whatever, the shooting.	Is
that incorrect or correct?

MR JAMES:	Not incorrect, Your Honour, but not entire. The
shooters were liable for the shooting. The others
had to be associated and, as the trial judge
expressed it,"party to the shooting'. The shooters
were effectively not identified. "To be party to
the shooting, one had to participate in the fight
with the knowledge that guns may well be used and
death might well result" was the way the trial judge put it.

The formula arose because the trial judge

saw a conflict between this Court's decisions in

CRABBE, BOUGHEY, JOHNS and GIORGIANNI and, as the

Court of Criminal pointed out, at the end of the

day this question of whether the accused is a

principal in the first degree, participating

in the fight~ in effect, causing death or an

aider an abettor or accessary before the fact

really, in the thrust of the summing up came

down to the proposition that they were effectively

first degree and second degree, the appropriate direction to the jury was the most favourable

to be regarded as persons who, by their own acts,

caused death by the participation in the fight.

direction and this direction was not it. Perhaps

I express it that way because His Honour does -

indeed, you get the rather peculiar concept of

a person aiding and abetting by contemplation of

a possibility, a person who contemplates a

probability, the aiding and abetting the reckless

indifference and that was as much as possible

excluded by His Honour the trial judge in the

summing up but the question at the end of the

day was, "Was it an adequate and sufficient

summing up on that essential issue"and that, in

our submission, is not a question that would
warrant the grant of special leave to the Crown
in an instant case unless the case is such as to

require, in the clarification of the law, some

such clear statement as, in effect, explains

CRABBE on the issue for New South Wales or develops,

as it were, some sort of unified field theory to

C2Tl5/1/SH	26	8/8/89
Ross

replace the existing theory of relativities, if one likes,as far as expectation states of mind

are concerned in New South Wales, in murder.

In our submission, the act simply does not warrant it, nor does this case. Your Honours,

there is little more I can say than is in our

written submissions. This is, in our submission,

old ground.

MASON CJ:  Yes, thank you, Mr James. Yes, Mr Blanch.

MR BLANCH: May it please the Court. Just briefly in reply,

Your Honours. I refer the Court to three cases;

the first case is the case of CHAN WING SIU, '(1985)

1 AC 168, which Your Honours have in front of you.

My friend read from the judgment of the Court on

page 179. I just quickly refer the Court back to

page 172 in the Crown's submissions which were the

basis - well, the Privy Council	accepted the
Crown submissions.	At page 172, between the letters
A and B:

It is misleading to use the words

"possibility" and "probability". Juries

must use their commonsense and give words

their ordinary meaning. Real can be

contrasted with fanciful, and there must be

a real risk. Judges should not use phrases

importing degrees of risk.

And the quotation is there from CALDWELL.

(Continued on page 28)

C2Tl5/2/SH	27	8/8/89
Ross

MR BLANCH (continuing): Further on in that page, the expression

"might well happen", which is the expression that was

used by this judge in this trial, occurs on a number

of occasions. The second matter that I would refer

the Court to is just the relevant passage in BOUGHE~

(1986) 161 CLR 10, and I wish ·

to read a short passage on page 22 in the joint

judgment of Your Honour the Chief Justice, Mr Justice

Wilson and Your Honour Mr Justice Deane.	At page 22
at about point 75:

the expression "likely to cause death" in

s. 157(1) is an ordinary expression which

is meant to convey the notion of a substantial

or real chance as distinct from what is a mere

possibility: "a good chance that it will

happen"; "something that may well happen";

something that is "likely to happen".

I read that passage simply to answer the submission

put my friends that the law is perfectly well understood

and plain and ordinary and does not need any elucidation.
I would also read to the Court from REG V CRABBE,

(1985) 156 CLR 464, and I wish to read from page 470

at the top of the page - if I might read that passage:

A person who does an act causing death

knowing that it is probable that the act will

cause death or grievous bodily harm is, as

Stephen's Digest states, guilty of murder.

although such knowledge is accompanisi by

indifference whether death or grievous bodily

harm is caused or not or even by a wish that

death or g-rievous bodily harm might not be

caused. That does not mean that reckless

indifference is an element of the mental state
necessary to constitute the crime or murder. It

is not the offender's indifference to the

consequences of his act but his knowledge that

those consequences will probably occur that is the

relevant element.

If that be the case then CRABBE has no relevance

whatsoever to New South Wales because the head of murder

that was relied on in this case is the head of murder

"reckless indifference to human life".

BRENNAN J:	Subject to subsection ( 2-).
MR BLANCH:	Sul:section (2) of?

BRENNAN J: Section 18.

MR BLANCH:  The requirement of malice, Your Honour?

BRENNAN J: Yes.

C2T16/l/FK	28	8/8/89
Ross

MR BLANCH:  Yes, but malice is defined as including reckless

conduct - reckless or wanton conduct. It has been

said, of course, in MRAZ case that section 5 has been

defined as a question begging definition, but

section 5 des nct: cast any elu~idation on that point,

particularly if the point that Your Honour is suggesting

as a possible interpretation of the word "maliciously"

is that it requires malice in terms of malice

aforethought, because malice is defined here specifically

with a view to overcoming the problems of malice

aforethou~ht. I think that Stephen and Oliver who

wrote the book and who wrote the Act specifically

said so.

It may be that reading section 5 does not repay

the effort in many ways, but one thing that is clear

from section 5 is that they were not trying to

reproduce malice aforethought, they were settinf up

statutory categories which would satisfy the definition

of maliciously. Even in the section on - I see

Your Honour has been reading that - but in the section

Your Honour will have seen that it is without malice,

but without malice - sorry, perhaps I should read the

section:

Every act done of malice, whether against an

individual or any corporate body ..... or done
without malice but with indifference to human

life or suffering, or with intent to injure -

et CE;:tera or "recklessly ox: wanJ:ot).tly", so that the

definition in section 5 actua~ly excludes malice in

that part of the definition. So, I only make that

point to say that you cannot go back to section 18(2)
and suggest that because of section 18(2) malice

aforetfiough~ . is incorporated into the New South Wales

definition.

The drafters of the statute may not have been done

all that elegantly or all that clearly, but one thing

is clear, was that they were not incorporating malice

aforethought in that definition, in fact, they were

. trying to get rid of it. (Continued on page 30)

C2Tl6/2/FK	29	8/8/89
Ross

MR BLANCH (continuing):  And, it is clear, in our submission,

both from the judgment of this Court in CRABBE and
from those matters, that the conrrnon law and the

conrrnon law as elucidated in CRABBE does not apply to

the New South Wales definition. The total of those

matters, in our submission, Your Honour, is that

there is a degree of very serious confusion about a

very important aspect of the criminal law which is

of daily importance in the courts in New South

Wales and in Australia generally and that is the

matter that needs elucidating and those are the

matters that would justify a grant of special leave.

MASON CJ:  Thank you, Mr Blanch. The Court will take a short

adjournment to consider the course it will take in

this matter.

AT 11.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.39 AM:

MASON CJ:  The Court has come to the conclusion that these

applications for special leave to appeal should be

refused. The Court will publish its reasons for

that decision at 2.15 pm this afternoon.

MR BLANCH:  May it please the Court.

AT 11.40 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE'.1·SAME DAY

C2T17/l/JH	30	8/8/89
Ross

UPON RESUMING AT 2.16 PM:

MASON CJ: This morning the Court refused these applications

for special leave to appeal and announced that it
would give its reasons for refusing the grant of

special leave this afternoon. Special leave to

appeal to this Court from an acquittal, even an

acquittal pursuant to a successful appeal by a
convicted person to an appellate court, will be
granted to the Crown only in exceptional

circumstances. That general proposition is

a fortiori in a case where, pursuant to or

consequent upon the order of the appellate court,

the successful appellant has been released from

custody.

In the present cases, the Crown seeks leave to appeal from decisions of the New South Wales

Court of Criminal Appeal effectively acquitting

the respondents of murder. Consequent upon the

reduced sentences imposed by the Court of Criminal
Appeal, seven of the nine respondents have now
been released from custody. That being so, the

Court would be justified in granting special

leave to appeal to the Crown only if clearly
exceptional circumstances gave rise to a pressing

need to grant such leave in the public interest.

Though there are important questions arising

under the relevant New South Wales statutory

provisions which would be canvassed on the appeals

if special leave were granted, we are not persuaded

that the particular issues arising under the

respective judgments of the Court of Criminal

Appeal are such as to warrant the cases being seen

as falling within that clearly exceptional category.

Accordingly, special leave to appeal was refused

in each case.

AT 2.18 PM THE MATTER WAS ADJOURNED SINE DIE

C2T29/l/DR	31	8/8/89
Ross