Royall v The Queen

[1990] HCATrans 268

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1989

B e t w e e n -

KYM WILLIAM ROYALL

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 NOVEMBER 1990, AT 2.16 PM

Copyright in the High Court of Australia

Royall 1 6/11/90

MR G.R. JAMES, QC:  May it please the Court, in that matter

I appear for the applicant, with my learned

friends, MESSRS P.R. BOULTEN and H.J. KABLE.

(instructed by Giam and De Rubeis)

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

behalf of the Crown, with my learned friend,

MR P.G. BERMAN. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ:	Mr James?
MR JAMES:	I hand up to the Court an outline of our

arguments.

Your Honours, might I take the Court to the

judgment of the Court of Criminal Appeal which

commences at page 157 in the appeal book and that

judgment opens with a short summary of the factual

material referring to the fall:

from the bathroom window of a sixth floor flat

and the size of the bathroom and the window.	The
court continues that:

The appellant, both in records of interview

made shortly following the death of the

deceased, and in an unsworn statement at his

trial, maintained that the deceased had jumped

from the window.

The Court of Criminal Appeal noted at that point

that:

The jury obviously rejected that allegation.

The Crown's contention was:

that the deceased's fall from the window was

caused by the actions of the appellant.

The court continues at the bottom of page 157 and

at the top of 158:

As the trial was conducted, the question of

how the deceased came to fall from the window

was one of the principal issues of fact with

which the jury were concerned.

After referring to a further summary of the domestic violence and the entry to the bathroom,

the court, at line 21 on page 158 refers to the

defence that was advanced at the trial:

Royall 2 6/11/90

Attempts were made to explain why the deceased might have been motivated to jump from the

bathroom window and these included suggestions

that she suffered from depression, perhaps

related to epilepsy, or that she was suffering

from withdrawal symptoms connected with the use of amphetamines. It is unnecessary for

present purposes to go into the detail of
these matters because the jury plainly

rejected the appellant's account of how the

deceased met her death.

The court turns there, at page 158, to one of the

alternative scenarios advanced.

There was evidence which indicated that

the appellant had made a forcible entry into

the bathroom and that thereafter a violent

struggle between the appellant and the

deceased had occurred in the bathroom.

There is reference to the bathroom being

forced open and to the damaged ashtray, together

with the gouge marks, and the analysis of what

consequences might flow from those gouge marks and

the abrasions to the legs are referred to on

page 159 down to line 23.

Then the court turns to the background to the

domestic quarrel, and at the top of page 160 comes

to the first legal element issue in the analysis it

is making:

One of the major issues which the jury had to resolve was whether the death of the

deceased was caused by the acts of the

appellant. Leaving aside any question of the intention with which the appellant might have

acted, and whether, assuming him to be guilty

of unlawful homicide the intention with which

he acted made him guilty of murder on the one

hand or manslaughter on the other, there was a

primary question whether it had been proved

that there was the requisite causal
relationship between the conduct of the

appellant and the death of the deceased.

The court points out that -

the jury were left to draw inferences from

circumstantial evidence as well as the

appellant's admissions.

At line 15 the court commences to examine the

causal acts and the principles of causation as they

applied in this case.

Royall 6/11/90

It is well settled that a person may be taken

to have committed homicide, that is to say,
that there may be the requisite causal

relationship between his acts and the death of

the deceased, if by actual violence or threats

of violence he causes the deceased to do some

act resulting in the death of the deceased.

And reference is made to the example of Grimes
which I might leave, if I might, for the moment.

And reference is made to the direction given in

that case, that is, that:

The trial judge directed the jury that if the

victim had a well-grounded apprehension of

such further violence as might endanger his

life and if he left the carriage to avoid that

danger then the accused were as much

responsible for his death as if they had

thrown him out of the carriage. That was held

on appeal to be a proper direction. The

appellate court refused to accept a submission

that the trial judge should have directed the

jury to consider the reasonableness of the

victim's conduct in jumping from the train as

a response to the danger which he apprehended.

Stopping there, if I might, to say two things at
this point about Grimes's case: our first
submission is that on a proper analysis of Grimes's

case reasonableness was, in fact, examined and

determined and there was a direction as to the

objective reasonableness of the victim's conduct.

If I might take the Court to that case;	Grimes can
be found at (1984) 15 NSWLR 200.

It can be seen from the form of the direction,

and in particular at page 213, firstly, in the

questions reserved, at approximately line 12:

he would be subjected to such further violence

carriage thinking that by doing so he had a	as would endanger his life, and if he left the
better chance of saving his life than by staying in, and was killed in the fall, then the prisoners are guilty of murder, and are
just as responsible -
If I could go back again and give the whole of

the passage:

yet that when he jumped through he had a well-

founded and reasonable fear or apprehension

that if he stayed in the carriage he would be

subjected to such further violence as would

endanger his life -

Royall 4 6/11/90

and what was put, it appears, when one turns to

page 214, is an argument seeking to show remoteness

only in the sense of reasonableness on the part of

the victim in taking the course the victim did.	In
the context of an argument that the deceased was:

constrained to do the act which resulted in -

the death. This appears from the argument of

Mr Butterworth for the prisoners. In addition, at page 215, approximately point 5, the argument runs:

In the present case the Chief Justice, in his

direction, omitted the second element

altogether, and did not leave it to the jury

to consider whether the act of the deceased in

jumping out of the train when in motion was

such a step as a reasonable man might have

taken, whether under all the circumstances it

was a natural consequence of any act done by

the prisoners, or whether on the other hand it

was an entirely voluntary act of the deceased,

not a natural consequence of anything which

the prisoners had done, an act done without

adequate cause.

And it is put that that should be left to the jury.
When one turns to the judgment, it appears at

page 221, after following the discussion on page 220 from Russell on Crimes, and Evans,

commencing at the last three lines of page 220:

It is said that the direction is wrong in that

the Chief Justice did not tell the jury that
before they could find the prisoners guilty

they must find that the deceased acted under

compulsion. It is clear, however, that

his Honour did direct the jury that before
finding the prisoners guilty they must come to
the conclusion that the deceased was driven to

jump out of the carriage by reason of a well-

founded apprehension that his life was in

danger, and that he was killed in his attempt

to escape from that danger. His Honour's

summing-up could only be taken in that way,

and, in my opinion, was amply sufficient for

the purposes of the case.

Similarly, at page 223, dealing with the word

"constrained" in the judgment of Mr Justice Innes
in the last third of that page, and in the last

four lines:

Whether the apprehension was reasonable or not
was for the jury to decide, and they have

found that it was reasonable under the

Royall 6/11/90

circumstances for the assaulted man to do as

he did in the hope thereby of saving his life.

Again, at page 224, just above point 5, is the

reference to "constraint". Before leaving Grimes

and Lee I should point out that that case was a

murder felony case and there was not - there need

not have been and there was not any further

discussion of the intent, except for the intent
necessary for the primary offence which was in that

case an offence of robbery in company with

wounding. That is a felony which would

attract - - -

BRENNAN J:  It was not a case of murder felony; it was a

case of manslaughter.

MR JAMES: 

I accept that correction, Your Honour, but the

point I am seeking to make is the way the case was
put as a murder case at first instance appears to

have been because of the statutory murder felony,

that is offences punishable by penal servitude for

life under section 18 of the New South Wales Crimes

Act as it now is; but, of course, the result was,

as we point out in our submissions, it was a
manslaughter case as, indeed, appear to be almost

all the cases involving these kinds of
circumstances and these directions, except for the

two New South Wales cases, the instant case, and

its predecessor Tavai.

BRENNAN J: 

No doubt you will wish to come to it but if

the question is the reasonableness of a victim's

conduct, then one can understand that that is the

relevant test in a manslaughter case, but if the

case is one in which there is an intention that the

victim should act in a particular way and the

victim, albeit unreasonable, acts in that way so as

to cause the victim's death, then that they will be

murdered.

MR JAMES:

. Certainly, and in Grimes and Lee the discussion

of constraint and the point raised on behalf of the

prisoners seems to have been an attempt to discuss

a constraint, an intention to force a result,

rather than the causing of a result to which there

was not the requisite degree of adversion. Now,

of course, we would accept the proposition that if

one intends, that is desires the result, and

"applies" means calculated to produce that result,

that is murder.

We say, however, that the instant case is not

an example of that and, indeed, further, in our

submission, the Court of Criminal Appeal has gone
so far as to hold that that was not open at all.

Indeed, there is a parallel between the

Royall 6 6/11/90

circumstances Your Honour has outlined to me as

applicable to manslaughter and the doctrine of

manslaughter by an unlawful and dangerous act as it

has been interpreted in Newbury which requires the

consequence to be objectively foreseeable. And

that, in our submission, indicates that there is an

element of foreseeability as a causation element in
homicide generally. But I am getting way ahead of
myself at this stage.

Your Honours, the Court of Criminal Appeal went on to say, after dealing with Grimes and Lee,

that:

It should be noted, however, that this

conclusion was reached in circumstances where
the hypothesis was that the victim apprehended

that if he stayed in the train his life would

have been in danger.

The court does not, at that point, or, indeed, in

any discussion of those cases, deal with the

relationship between the act causing death and the
necessary intent and the coincidence that is

required for intent used in the general and wide

sense and the act causing death. Grimes and Lee,

of course, did not require any such analysis

because of the very nature of the case.

The court went on to refer to other examples of cases in which - if one could call them that -

fright cases produced a conviction as illustrating

the principles relating to causation. At page 162,

after dealing with Tavai, and His Honour's

directions that followed very closely the terms of

the summing up in Tavai, Their Honours turned to an

example taken from the present case. At line 4:

Obviously, jumping out of the window of a

tall building might, in some circumstances,

constitute a considerable overreaction to

violence which is threatened within the
building.	On the issue of causation,

therefore, it is important in a case such as

the present to define the relationship between
the conduct of the accused and the deceased's

departure from the building which will suffice

to justify the conclusion that the accused

caused the death of the deceased. The learned

trial Judge, without objection from counsel

and in my view appropriately, left the issue

to the jury on the basis that there were three

alternative ways in which they might, if they

found the necessary primary facts establish

beyond reasonable doubt, conclude that the

acts of the appellant caused the death of

Miss Healey.

Royall 7 6/11/90

His Honour points out 1at:

Of course, His Honour also left to the jury the defence case -

but, as has already been pointed out, the Court of

Criminal Appeal had decided that that defence case

had been rejected and appeared to have started

their examination of the adequacy of the bases for

conviction with that in mind.

The three alternative possibilities are listed

at page 162. The first clearly involves an act in

the bathroom and, secondly, bearing in mind it is a

sixth storey flat, clearly involves conduct

carrying with it the implication of intent to kill

or intent to cause grievous bodily harm. The

second carries with it an act in the bathroom and

carries with it, in due course, the various

intentional states that Their Honours were open.

The third does not so clearly express on its face

the necessity for an act in the bathroom. It

concentrates on the viewpoint of the victim and

there attempts to define the act causing death, the

causation relationship, by expressing it from the

victim's viewpoint:

that the deceased, immediately before her fall

from the window, had a well-founded and

reasonable apprehension that if she remained

in the bathroom she would be subjected to

life-threatening violence from the appellant

and that in order to escape that violences

jumped out of the window.

Al though The=:ir Honours put it in that. -fashion, it

is difficul~ to see there whether what is being

referred to are acts outside the bathroom, the

entry to the bathroom or acts taking place in the

bathroom. Their Honours then go on to say that:

If the jury were to accept beyond

reasonable doubt any one of these three
possible accounts of the relationship between
the conduct of the appellant and the death of

the deceased then his conduct would amount to

homicide.

Only two of those accounts describe the conduct of

the appellant directly. His Honour then goes on to

point out that:

The case was left to the jury upon the

basis that, having regard to the relevant

provisions -

in New South Wales, if the:

Royall 6/11/90

jury were satisfied that the death of the

deceased had been caused by the act of the

appellant, then they should find the appellant

guilty of murder if they were satisfied -

of the requisite intentional states and there, at

page 163 line 23, Their Honours set out the test

for reckless indifference as it has been known so
far in New South Wales and that proceeds through to

page 164 line 15.

Your Honours, an examination of the current

authority, including Brown's case, through at the balance of 164 and Their Honours point out at the last word of 164 to the top of 165 that although:

The concept involves a state of mind on the part of the accused which includes knowledge

that it is probable that the act in question

will cause death. It is the description of

the rest of his state of mind that becomes

awkward.

And, refers to a cumbersome formula in order:

to combine the language of the statute and the

received learning concerning the requisite

degree of knowledge.

His Honours then turn to manslaughter and there

they are referring to the fact that in New South

Wales reckless indifference or recklessness as to the occasioning of grievous bodily harm would not

be under the statute a sufficient intentional state

for the crime of murder, albeit that it would for

manslaughter.

They then turned to the trial judge's findings

on sentence as to, in effect, what was the act

causing death; that is, the breaking into the

bathroom, having an intention to "do further harm

of a serious nature to the deceased" and the reason
- I	put that that was the act causing death is that

is the time at which the act and the intent appear

to coincide and, indeed, to be the description of

when they coincide, but it is pointed out that,

because there were the:

three significantly different possibilities as

to the way in which the deceased came to fall

from the building, there is difficulty for an

appellate court -

to -

Royall 9 6/11/90

evaluate intent by reference to the nature of
the act causing death.

If I might stop there, Your Honours, there is grave difficulty in this case evaluating intent by

reference to the nature of the act causing death

because neither the summing up nor the Court of

Criminal Appeal in our submission at any point came

clearly to define the act except looking backwards

from the consequence towards a general description

of conduct which might have been said to be

causative.

Then, at page 166, Their Honours say this:

If the jury accepted the first of the three

possibilities left to them as to the manner of

the death of the deceased it is not difficult
to see how they could also have come to the
conclusion that the appellant intended to kill

or inflict grievous bodily harm upon the

deceased.

The first of the possibilities is the pushing or forcing her out of the window.

If they accepted the second of the three

possibilities, which from my reading of the

evidence appears to be the most likely, and if

they took a view of the facts similar to that

expressed by the learned trial judge in his

remarks on sentence it is not difficult to

understand how they have arrived at their

"~ verdict of guilty of murder.

That is, in see~ing to avoid an attack, she went

out of the window and that he was conducting

himself by entry into the bathroom or in the

bathroom in such a fashion as to induce in her the

necessity to avoid that attack.

His Honour goes on to say: 

There was abundant evidence to indicate that

the appellant forced his way into the

bathroom, and it was open to the jury to infer

that he did so for the purpose of causing
serious harm to the appellant in addition to
the harm which he had already inflicted upon

her.  The jury were entitled, on the evidence,

to conclude that the appellant had made an attack upon the deceased, in the bathroom,

using a glass ashtray as a weapon, and that he
had swung it at her, in the vicinity of the

bathroom window, with such violence that it

left the marks earlier described.

Royall 10 6/11/90

Then follows this passage at line 20:

I do not see how the jury could safely have

concluded that the appellant intended to kill

the deceased, but it was open to them to

conclude beyond reasonable doubt that he

intended to cause her grievous bodily harm.	I
do not consider that it would be safe to
conclude that there was a probability that his
actions would cause her death, or that he adverted to that probability.

It was submitted on behalf of the

appellant that the jury's verdict of murder

should be set aside as unsafe and

unsatisfactory and that, at the very least,

this Court should either substitute itself a

verdict of manslaughter or should order a new

trial limited to the possibility of

manslaughter.

His Honour describes the domestic melee situation as being a difficult one in which to draw a

dividing law and there is left at line 11, after

reference to the relevant legal principles:

And, the evidence justified a conclusion that the appellant attacked the deceased with a

weapon and with considerable ferocity.

Indeed, the ferocity of the attack would have been emphasised in the minds of the jury if they concluded, as they were entitled to, that in one way or another it forced the deceased,

in her efforts to evade it, backwards out of

the bathroom window. In the circumstances I am not prepared to conclude that the verdict

was unsafe or unsatisfactory.

Now, Your Honours, it appears, particularly

from the passage at page 166 from line 20 onwards,

that the Court of Criminal Appeal have rejected a

number of legal bases on which the case was left to

-on which the case was left to the jury as not open. the jury and rejected a number of the factual bases Indeed, the wording is:

I do not see how the jury could safely have

concluded that the appellant intended to kill

the deceased, but it was open to them to

conclude beyond reasonable doubt that he

intended to cause her grievous bodily harm.	I
do not consider that it would be safe to conclude that there was a probability that his
actions would cause her death, or that he adverted to that probability ..... and the
evidence justified -

Royall 11 6/11/90

at line· 11 on page 167 -

a conclusion that the appellant attacked the deceased with a weapon and with considerable

ferocity.

All of those indicate, in our submission, that at best the Court of Criminal Appeal is considering only some of the bases on which the case was left

to have been bases on which the jury might find a

verdict of murder acting properly, and

additionally, it may well be that the Court of

Criminal Appeal has considered a basis that is much

wider than was put at trial.

TOOHEY J:  Mr James, having regard to what the Chief Justice

says on page 166 from lines 20 onwards, which of

the three alternatives that were left to the jury

do you say was excluded by those remarks?

MR JAMES:  The first certainly, intent to kill. I am sorry,

Your Honour was referring to the causal

alternatives rather than the intentional ones?

TOOHEY J: Yes.

MR JAMES:	The first certainly, because that of its very nature points to, one, an intent to kill, or to a
reckless indifference, the forcing of a person out
of a six-storey window and that, in our submission,
would leave only really as applicable to that first causal alternative the intentional state, intent to cause grievous bodily harm, on the Court of
Criminal Appeal's analysis.

And interestingly, the way in which the matter

was put in the summing up was to put intent to

cause grievous bodily harm really only in relation

to the forcing out of the window. We say that

because firstly, if I might take the Court to the

passages at appeal book 31 where - the first causal

hypothesis is put at page 30, line 28, and that

is -

pushed or forced out of the window in a

physical way by the accused. It would not

matter if it was a slight push or the result

of a violent struggle.

The second factual circumstance is put -

whilst avoiding a blow or an attack ..... Such a

circumstance would not be an intentional

endeavour by her to escape from the accused

but rather an avoiding action.

Royall 12 6/11/90

The third is then put at that point, and then when

one turns to page 35 to link through to that,

dealing with intent to kill, commencing at page 34,

line 22:

The first question is whether, at the

time of the act bringing about the death, that

being the time when the deceased left the

building and fell to the ground below -

now his act, bringing about the death, could not be

at that time unless it was inside the bathroom when

she:

left the building and fell to the ground

below, there was present in the accused an

intent to kill; and if you are satisfied that

there was such an intent to kill you would not

need to consider the next two matters, namely

whether there was an intent to do grievous

bodily harm or whether the act of the accused,
done at that time, was done with a reckless
indifference to her life. If you are not so
satisfied of an intent to kill then you must

consider whether the accused had the intent,

at the relevant time, to inflict grievous

bodily harm.

"Intent" and "the relevant time", Your Honours, is

at the time when the:

deceased left the building and fell to the

ground below -

then you must consider whether the accused had

the intent, at the relevant time, to inflict

grievous bodily harm. Intent to inflict

grievous bodily harm involves simply

intention, which I have just discussed with

you. Grievous bodily harm means nothing more

and nothing less than really serious bodily

harm such as might be suffered by a person who

fell from a height.

So that, Your Honours, in relation to the

conclusions appearing at page 166, we would submit
that there the Court of Criminal Appeal has

excluded the conclusion that the appellant intended
to kill the deceased and is dealing only with the
factual situation of an attack in the bathroom; the

second of the two possibilities, that is, in the

avoidance of the attack, and appears to limit that
to intent to cause serious harm by hitting her with

the ashtray. Indeed that appears when one looks at

page 167, lines 11 through to 17, and it is only in

that context that the court continues with the next

sentence:

Royall 13 6/11/90

In the circumstances I am not prepared to

conclude that the verdict was unsafe or

unsatisfactory.

Now, Your Honours, that is what leads us to the first of our submissions. We point out on

page 1 of our outline that the defence really was

not limited to the proposition that the deceased

jumped. The defence was a denial of causation; a

denial of the requisite mental state and a denial

of the coincidence of that state with the doing of

an act which, in fact, caused death.

McHUGH J:  What do you mean by, "This was the defence case"?

I mean, the defence case was a very simple case,

was it not? Your client said that he was knocking
on the bathroom door and he finally got in and she

was jumping out the window. Are you telling us

that counsel put a series of alternatives to the

jury inconsistent with that?

MR JAMES:  No, Your Honour, not inconsistent with that. The

defence admitted the causing of injury in the flat;

that she had retired to the bathroom; that he

became worried about her; forced his way into the

bathroom without any intent to do her harm in the

bathroom and she was leaving the window. The way

in which the defence was put was that perhaps she

jumped and she had all these conditions that might

have predisposed her to act intemperately, and

further, really, in the way in which it is put, and

indeed as summarized in the summing up, that you

would not in those circumstances, with those

matters existing, be satisfied that there was

causation; that there was the requisite mental
element or that the requisite mental element

coincided with the act causing death.

McHUGH J: Yes, I appreciate that, but it only emphasizes

what I was saying. It is put in a very narrow way

and the defence case was really, "If what I told

the police in my records of interview and what I
told the jury raises a reasonable doubt, that's the

. end of the matter" . But, the accused was not

running a case which, in effect, said "Well, even

if you reject what I've said about this matter,

nevertheless, you can still acquit me".

MR JAMES:  Yes he was, with respect. He was at no stage

under any onus to raise any reasonable doubt.	He
was denying that the Crown had made a case on
causation, intent or coincidence and he was
proffering - - -

McHUGH J:  No, I am talking about the practicalities of it,

the way the case is being conducted in front of the

jury.

Royall 14 6/11/90

MR JAMES:  I am talking about the practicalities also,

Your Honour, and he was proffering a basis on which

the jury might well be reluctant to accept the

arguments put forward by the Crown, that is, that

there were reasons why she might have over-reacted
to what had gone on outside the bathroom. Indeed,

there was much discussion in the summing up and in
the case itself about what happened with the

ashtray and the accused hearing a thump inside the

bathroom and whether the hair was consistent with

having been on the ashtray when it struck the wall, and the absence of fingerprints, and the absence of

any discernable blood pattern inside the bathroom

consistent with injuries being inflicted on her

there and the absence on her head of any injuries

inflicted by the ashtray. The significance of that

was really to go to the denial of any attack inside

the bathroom by him and to propound the hypothesis
that she, in reacting hysterically inside the

bathroom, had smashed the ashtray on the wall.

McHUGH J:  I understand that but I still keep coming back to

it. If you lost the forensic contest as to whether

there was an attack in the bathroom, it is totally

unrealistic to think that you are going to escape a

verdict of murder in this case, is it not?

MR JAMES: Well, Your Honour, with respect, we do not know

the way in which it was put, whether that forensic

contest was or was not lost. We do not know - and

if he attacked her in the bathroom then there was

still a very important area that had to be covered

and that was whether he, at that stage, had an

intent to cause grievous bodily harm. Now, the

grave difficulty is, if it is the forcing out of

the window, there could not be much doubt about an

intent to have grievous bodily harm inflicted at

the least.

McHUGH J:  I know what the Court of Criminal Appeal said,

but why could not the jury take the view that he,

in effect, threw her out of the window?	I mean, on
all the evidence in this case, why could not the

_ jury take the view he was just like a wild animal,

out of control. There are TV sets turned over,

smashed up, her nose broken. He belted her up, she

retreated into the bathroom. There is blood all

over the place.

MR JAMES: 

Yes but, Your Honour, with respect, the jury

could not have concluded that she was not also a
participant in the melee, albeit she sustained the

damage and, further, as to that - we have not put

on the evidence because of the findings that were

here, but when one examines in the summing up the
references to that, one can see that even with the

assistance of attempts by stunt men, even with the

Royall 15 6/11/90

examination of the circumstantial material by the

doctor, Doctor Staraj, and others, there is nothing that helps us to say he threw her out of the window

to the point where one can have the satisfac ion

that the onus and standard require. The Court of

Criminal Appeal appear unanimously to have shared

that view and - - -

McHUGH J: That may be but I must say the case strikes me as

totally unreal, really, and I cannot imagine that

the jury would go through this fine analysis that

the Court of Criminal Appeal has adopted in this

case. I mean, your client has got a story and

either it raised a doubt in the mind of the jury or

they would disbelieve it and any inference that

they would draw would be strengthened by the lies

that he told the police bout having nothing to do

with it.

MR JAMES:	I am sorry, Your Honour.
McHUGH J:	The jury could conclude -
MR JAMES:	But how could the jury conclude that he had told

lies to the police about having nothing to do with

it?

McHUGH J:  No, about the bathroom and that he was not in the

bathroom, he just knocked on the door.	What about
his first record of interview?

MR JAMES:  Yes. Your Honour, with the greatest respect, it

is not up to him to raise reasonable doubts and

propound a story that is acceptable to the jury,

either forensically or legally. It is necessary to

prove the case. If one starts from the point of

view, as the Court of Criminal Appeal appeared to

do, that one can reject everything that he said and

thereby draw a conclusion that makes safer, at the
very least, or, more probable, that gets rid of

reasonable doubt at all, then one is reasoning,

with respect, circularly. One is starting off with

the onus and standard in a criminal case the wrong way. It is necessary to see if the Crown made out

its case.

Now, it may well be that if this man has told

lies, with a consciousness of guilt, of the crime

charged, that may be prayed in aid as evidence but

it does not dispose of the case. And, particularly

not where he is admitting the factual matters, many

of the factual matters on which a conclusion may

have been drawn that the jury convicted him because

he had an intent at one stage to inflict grievous

bodily harm in the balance of the flat and that

that was enough to produce a well-ordered or a

well-founded misapprehension on her part that when

Royall 16 6/11/90

he broke into the flat, having an entirely

different intent, she, fearing further violence,

would leave by the window.

If that is so, this man has been convicted of

murder upon a basis that is not legally open.	It
may be that he lost the forensic contest at the
trial.	It may be he was one of the unlucky ones

like Mr Tavai whereas, in other circumstances, it

would be manslaughter. But, in our submission,

that does not in any way deprive him of the

entitlement to have the Court of Criminal Appeal

examine clearly the evidence which it had before it

to decide whether or not findings were properly

open. And, in our submission, they held that a

number of the findings were not properly open and

yet proceeded on a basis of their own to try the

case as though it were a Warren v Coombes case,

rather than dealing with it as they should under

section 6 of the Criminal Appeal Act or,

alternatively, on the basis propounded by this

Court in Morris.

If the case was left to the jury on bases that

were not properly open and the jury may well have

convicted on that basis, in our submission the man

is entitled to a new trial.

McHUGH J:	What I was putting to you, why was not it open to the jury to convict on the basis that it was put to
them?
MR JAMES:	Your Honour, I have not the evidence here to take

Your Honour through it. I could take Your Honour

through the summing up and how it refers to the

evidence but what I am seeking to put is - - -

McHUGH J:  I read the summing up.

MR JAMES: All I can put to Your Honour is, as the Court of

Criminal Appeal puts, that, firstly, bearing in

mind the standard of proof, there was simply not

enough there to show he had pushed or threw her out
. the window.	And given that, it is very hard to

find an intent to kill anywhere else.

DEANE J:  They do not say that. They say a verdict based

solely on that would be unsafe.

MR JAMES: Yes, that is another question.

DEANE J:  No, it is not. You seem to be suggesting that

because the Court of Appeal is of the view that if

the jury's verdict, viewed in one light, would be

unsafe if that was all that founded it, the trial

judge was under an obligation to tell the jury they

Royall 17 6/11/90

could not find that. It is a quite different

thing.

MR JAMES:  Yes, I am not putting it in that fashion,

Your Honour.

DEANE J: That is the way it is coming over to me.

MR JAMES: Perhaps it is because of the answer to the last

question rather than presenting the arguments I

would wish to. What I am seeking to put is that

there were three bases, causal bases, for the

jury's conclusion in the Crown case and the fourth,

the defence case.

DEANE J: But one possibility, supported by among other

things what_he is said to have said to the police

immediately~afterwards, was that he threw her out

the window:

MR JAMES: With respect, Your Honour, that was not, in our

submission, any support for the proposition that he

threw her out the window. That statement is not

part of the grounds for our application for special

leave.

DEANE J:  I think that was what he said.

MR JAMES: That statement, however, is not now part of the

grounds for special leave, I should say. That

statement was a statement which was made in the
presence of two police officers who were not called

to give evidence at the trial of the context in

which the statement was made. They had spoken to

the appellant prior to him making that statement.

The evidence was that he had come dm,-1., was along

side the body and appeared distressec Another

police officer, who was not participating in the

conversation, gave evidence of that statement by

him but could not give the context in which that

statement had been made.

For some reason that is not explained at any

- stage, neither was there objection to the statement

nor did the Crown call the two officers who spoke

nor was there apparently a request that they be

called. The trial judge left the statement in the

summing up in what we would submit was a fairly

ne tral fashion.

Royall 18 6/11/90

The Court of Criminal Appeal, having examined

the whole of the evidence, concluded, and if I

might take Your Honours to that at page 174 line

10:

The remaining grounds of appeal concern

relatively minor matters. There was some

evidence of police officers as to a remark

made by the appellant, in the vicinity of the

deceased's body, shortly after her death. The

remark could possibly have been treated as an

admission although, in the circumstances, I

would not have understood it in that light.

The complaint in this appeal was that the

failure of the prosecution to call some of the

police officers to whom the appellant spoke at
the relevant time rendered the evidence

inadmissible or resulted in a miscarriage of

justice. As I have indicated, the statement

was ambiguous. It was capable of being

regarded by the jury as an admission by the

appellant that he had thrown the deceased out

of the window, but so far as one can tell from

the reading of the transcript, it strikes me

as being more like an ironical statement. In

my view it was admissible in evidence.	I have
no doubt that the jury would have been

perfectly well alive to the possible innocent

interpretation that could have been placed

upon it. I consider that there was no

miscarriage of justice in this regard.

MASON CJ:	Now, where is the cross-examination of the constable on the evidence given as to the making of
his statement? Is that at page 17?

MR JAMES: I am sorry, Your Honour, it is not

MASON CJ: Well, the evidence in-chief apparently is given

at page 5 and then some questions are asked at page

17.

MR JAMES:  Yes, and indeed, at page 16 also is the reference

_ to the police walking alongside. The context,

Your Honours, is set at the top of page 16. There

had been some controversy about a person who was

not called, not the police constables, but who it

was alleged had assaulted the deceased outside the

flat as he was going to the body and then, the

cross-examination and the relevant portions of it

are at 16 through to 19. There is re-examination,

in particular at page 20 and the top of page 21,

about whether the police saw it as his job "to

arrest anyone for the homicide of this woman on

that night. He said, "Certainly not ..... no", but

it is really page 17 that is the crux of that

cross-examination. I am reminded, of course, that

Royall 19 6/11/90

the whole crux of that is that if that were an

instant admission alongside the body, you would

expect an immediate arrest.

BRENNAN J:	You would expect an immediate warning perhaps.
MR JAMES:	Well, at least a warning but, Your Honours, it

cannot be assumed that the Court of Criminal Appeal

have not taken that into account in performing

their function at page 166 and, indeed, the case

involved taking them to the question of what was or
was not open in the evidence, as well as to the

more modern and possibly different formulation in

Chamberlain and Whitehorn and Morris and the

conclusions expressed are those peculiarly of a

criminal appeal :ourt as to what was open and what

was not, and the language that is used indicates

unsafety and openness as two concepts the court

have in mind.

Indeed, when one comes to deal with reckless

indifference it can be seen that the Court applies

an objective criterion first as to the probability

that his actions would cause her death and then

move to the advertence to that probability and

concludes that the reckless indifference was not

available.

BRENNAN J:	I must say I have difficulties with both of those concepts, Mr James. First of all, I can see
that the objective test is essential for manslaughter, that for reasons that we have earlier
di cussed I do not see it as having any relevance
evon in a case where the jury is satisfied that
there is a relevant intent of one of the kinds
referred to her=: and next, for my part, I do not
understand why even if one takes the passages to which reference has just been directed in the cross-examination as being used ironically that they are not nonetheless powerful evidence of the existence of an advertence to a probability; else
one would think that there would be at least an
expression of surprise that such a thing could have

- happened.

MR JAMES:  Your Honour, he is standing alongside a body

apparently and in some considerable degree of

distress. Now, to respond by way of anger to what

had been said to him with what appears to be an

emotional and angry comment, which is what the

Court of Criminal Appeal seem to be describing as

"ironical", rather than telling a joke, is not a

response that is consistent with either the

consideration prior to the going out of the

window, of the likelihood that that might happen,

or a consideration of having achieved a particular

result which was desired or intended.

Royall	6/11/90
BRENNAN J:	Well, one might no doubt have urged that with

considerable force and one might have perhaps

expected with some success before a jury but the
question being whether or not there was evidence on

which a jury might safely convict, how does the

Court of Criminal Appeal come to the conclusion

that there was none?

MR JAMES: 

The Court of Criminal Appeal came to the

conclusion that that statement was ambiguous and
that, therefore, the jury should not have acted on
it. They came to that conclusion in the light of
the whole of the evidence. Now, if there is simply
an ambiguous confessional statement and the rest of
the evidence does not allow one to decide between
the two possibilities set up by the ambiguity,
guilt is not proved beyond reasonable doubt, in our

submission, and then one can say, ttit is not open

to conclude beyond reasonable doubt", as the Court

of Criminal Appeal did or, one could say that, "It

is not safe to conclude that there was an intention
to kill".

BRENNAN J: Putting it together with all the other matters

to which Justice McHugh referred, it seems a very

strong thing to say that there was insufficient

evidence of intent.

MR JAMES:  Your Honour, when I am saying "insufficient

evidence of intent", what I am submitting is intent

in the specific intent sense required for

section 18, that is, intent to kill. I am not

submitting that there was not, on that night, in

that man, in that flat an intent to cause some

degree of harm. And it is exactly that that has

led to the problems in trying to sort out the
domestic melee cases and the fright cases in terms

of murder or manslaughter.

Indeed, it seems that those cases are almost

invariably sorted out in favour of manslaughter

because of the difficulty to decide what was the

act that caused death and what was the intent, ie,

-what went on and what did this person mean to do by

their act?

In this case the Court of Criminal Appeal

recognizing those difficulties, and recognizing the

jury's difficulties, still has cast on it the

burden to see not only what is open, but also what

could be concluded in the light of the standard of

proof. And it is quite clear that they have

qualified what is said in terms of standard of

proof.

DAWSON J:  Can I just put my difficulty to you? If you go

to page 167 and look at the passage which you

Royall 21 6/11/90

pointed out to us, is the Court of Criminal Appeal

there saying that the applicant intended to kill?

MR JAMESi -No, Your Honour, with respect. What the Court of

Criminal Appeal appears to be there saying when one

relates that to the passage at page 166 - - -

DAWSON J: Well, that is what I am trying to do.

MR JAMES:  - - - is:

but it was open to them to conclude beyond

reasonable doubt that he intended to cause her

grievous bodily harm.

That passage at line 20 to 27 follows after - - -

DAWSON J:  "Intended to cause her grievous bodily harm" with

the intention that she should thereby be caused to

jump out of the window.

MR JAMES:	No, Your Honour.
DAWSON J:	What does it mean?

MR JAMES: Simply, at line 15 on page 166 - perhaps I should

go further back to line 11:

There was abundant evidence to indicate that

the appellant forced his way into the

bathroom, and it was open to the jury to infer

that he did so for the purpose of causing
serious harm to the appellant in addition to

the harm which he had already inflicted on

her. The jury were entitled, on the evidence,

to conclude that the appellant had made an attack upon the deceased, in the bathroom,

using a glass ashtray as a weapon, and that he
had swung it at her in the vicinity of the
bathroom window, with such violence that it

left the marks earlier described.

Then His Honour goes on to say: 

I do not see -

the intent to kill, but "intent to cause grievous

bodily harm was open"; "reckless indifference" was

not. Then turning to the discussion of the - - -

DAWSON J: Short of an intention to kill it would have to be

reckless indifference, would it not?

MR JAMES:  To swing an ashtray at somebody, Your Honour?

DAWSON J: No, I do not mean that, but to conclude that

there was murder.

Royall 22 6/11/90

MR JAMES:  Yes, there would have to be that, or an intent to

cause grievous bodily harm, and the whole point we

make - - -

DAWSON J:  And an intent to cause grievous bodily harm is

not enough for reckless indifference.

MR JAMES:  No, it is not, but it is enough for murder in New

South Wales. An intent to cause grievous bodily

harm is enough for murder in New South Wales if, in

fact, the death is caused by the act done with that

intent.

DAWSON J: That is what I say. I may be being obtuse, and

most probably am, but in other words, when you get

to page 167 what is being said is that the grievous

bodily harm - what is the grievous bodily harm that

is being referred to there?

MR JAMES: 

The grievous bodily harm is attacking her with

the ashtray. His intent is to attack her with the
ashtray.

GAUDRON J: That has got absolutely nothing to do with the

deceased person going out the window.

MR JAMES:  No, it has not, because:

it forced the deceased in her efforts to evade

it, backwards out of the bathroom window.

GAUDRON J: That is right.

MR JAMES: That is to say, he is only intending to strike

her and hurt her with the ashtray. It does not go

on to say that he intended to force her, in her

efforts to evade it, backwards out of the bathroom

window.

DAWSON J:  ..... they say that he probably would have not

known that or, at least, there was not a

MR JAMES: That is right and, indeed, they go on further	probability that he would not know that.
lower down at line 23, in dealing with the directions in relation to "reckless indifference":

As I have already indicated, I doubt that this

is a case where the jury could properly have

concluded that this aspect of intention

existed -

without limiting it to any factual circumstances.

BRENNAN J:  Mr James, leave aside the facts of the case for

a moment. What is the difference in mental state

Royall 23 6/11/90

between an intention to cause grievous bodily harm
which is sufficient for murder and the reckless

indifference which is sufficient for murder?

MR JAMES:  The reckless indifference which is sufficient for

murder in New South Wales is reckless indifference

to human life and that appears to require the
animadversion to death rather than the common law

animadversion to the causing really serious injury.

There are circumstances in which persons might

consider that they are inflicting grievous bodily

harm but it is not likely to cause death.

BRENNAN J:  So that the court here says that there was

evidence which would support a finding that he

intended to cause really serious injury but

insufficient evidence to say that although he may

have so intended, he did not consciously advert to

the risk of thereby causing death?

MR JAMES:  Yes.

BRENNAN J: That is something that would make the school men

proud, would it not?

MR JAMES:  No, Your Honour, with the greatest respect. They

are in a small bathroom - and this is why, when I

commenced today I took the Court to the size of the

bathroom. It is a very small bathroom, indeed,

with a small window. The woman was on a ledge up

above the bath at this very small window, a window

through which it would have been very difficult to

push anybody conscious in any event.

McHUGH J: That makes it even the more difficult to think

that she would have gone out backwards in the face

of an attack. Why could not the jury think that he

must have pushed her out, particularly having

regard to everything that happened?

MR JAMES: Might I, Your Honour, finish with

Mr- Justice Brennan's question and then come back to

yours again, if I can?

MCHUGH J: Yes, I am sorry.

MR JAMES:  The assault accompanied by the intent to cause

grievous bodily harm, to which the Court of

Criminal Appeal have reference, is an assault

apparently with the ashtray in the bathroom itself. hitting of someone with the ashtray may well have

been done in circumstances in which there was not

the slightest adversion to the possibility of the

woman throwing herself out the window, possibility,

probability or otherwise, and what is more, with no intent to kill her by hitting her with the ashtray.

Royall 6/11/90

The problem in this case arises because the woman

went out of the window. Now, that had to be

causally linked in some way with his act.

The way in which the trial judge was able to

deal with intent to cause grievous bodily harm and
causation and put them together was by defining the
act causing death as the going out of the window

rather than what act he himself performed which

caused her to go out the window, ie, push, blow or

the raising of some terror, if I could describe

them that way. And he did so, because the way in

which the case was put to the jury on intent to

cause grievous bodily harm was that he might not

have thought that she would die when she went out

the window but he must have intended that she

suffer really serious bodily harm. So, it rather

limits it before the jury in that fashion.

BRENNAN J:  If it were linked to her going out the window,

to say if the Court of Criminal Appeal had said

this, and I appreciate your strictness upon what

has been said, but to say that there was sufficient evidence to find an intention to do grievous bodily

harm in her going out the window but not from a

sixth floor window, a conscious animadversion of

death, it seems to me to be nonsense.

MR JAMES:  Your Honour, what was put to the jury - in fact,

we should go so far as to say that, really, this

case should have been put to the jury by the Crown,

bearing in mind it is a sixth floor window and

bearing in mind the practical remark that

Your Honour has passed, as a case that involved,

really, intention to kill or nothing. Reckless

indifference has an even greater criticism of it

than the criticism Your Honour has made of intent

to cause grievous bodily harm in that context and,

indeed, we make the point in our outline that this

is really like the Pemble and La Fontaine cases in

which reckless indifference does not play a part

and is subject to the same sort of criticism that

reckless indifference is subjected to in those

-cases.

If you shove somebody out a sixth floor

window, from the practical viewpoint, the only
issue is: did you intend to kill or not? Unless

some such matter is raised, and here there would be

room to raise something that would strike down what

would otherwise be factually if not legally

presumed of the actor, the only conclusion the jury

could come to, if that act was done voluntarily and

deliberately, was intent to kill.

But the whole case was complicated from first

to last, that is in the court below and less so or

Royall 25 6/11/90

perhaps more so in the Court of Criminal Appeal by

surrounding that simple forensic contest with a

number of other ways in which the jury could ha

reached the conclusion and by seeking to define
causation, as it were, backwards - the third
alternative - without look at the question of what

was the act that caused death with such precision

as to enable one, as one would normally do, to

utilize that act effectively to define intent.

On that well-ordered apprehension basis, and on the way in which it was left to the jury, any

intentional state referred to could be related to

any of the causal hypotheses so as to permit the

jury to reason in almost any way towards the death.

GAUDRON J:  Was that objected to at the time? Was a

direction sought about that?

MR JAMES:  A direction was sought concerning reckless

indifference. A direction was not sought in

relation to the causal hypotheses except in so far

as the putting of the defence hypothesis was

concerned. And, of course, the defence hypothesis

was really a negation of the hypotheses put by the

trial judge. But the point was certainly made in

the Court of Criminal Appeal, made as to causation

and made as to the way in which the case could

properly be analysed.

Your Honours, when it comes to that question

of considering what was open and what verdict might
be safe and satisfactory in the circumstances, it

is incumbent, in our submission, on a court of

criminal appeal, to examine the evidence and to
examine the way in which the case was left to the

jury because if the case was left to the jury, even

though there was evidence to support the verdict,

upon a basis that was not open, as the only basis,

there could be no question that a court of criminal

appeal would intervene.

If the case was left to the jury on bases that

were wrongly put, bases of fact or law, then there

has been, in our submission, at the least, a

misdirection. The jury are invited, as it were, to

convict on a basis which is not open and that was

the same sort of thing as has happened, for

instance, in Pemble and that, in our submission,

would warrant a proper trial.

It is not for the Court of Criminal Appeal to

affirm a conviction where its view is that of the

bases offered, some are inadequate, unless it is in

the privileged position of the South Australian

Court of Criminal Appeal and, could I take

Royall 26 6/11/90

Your Honours to the South Australian decision in

Marshall?

DEANE J:. What basis do you say the Court of Criminal Appeal

said was inadequate?

MR JAMES:  Your Honour, I have to interpret those words

appearing at page 166, li~e 20 through to line 27

and page 167, line 23 through to 25, as indicating

that reckless indifference was not available and

that, at least in some factual circumstances, left

to the jury as supporting this proposition,

intention to kill.

DEANE J: But, I might be missing something, but if there

are three alternatives, one of which involves a

direct intention to kill, another involves murder
by reason of some other intention, it is not for a

court of appeal to say, "We do not think that the

evidence would have justified a positive finding of

alternative one, therefore that alternative should

have been taken away from the jury.

MR JAMES:  With respect, Your Honour, we would argue that

it - - -

DEANE J: Because it would be wrong for the trial judge to

say to the jury, "There are alternatives one, two

and three; if you find that it was one of those it

is murder, but I am telling you now, you must

disregard alternative one because you could not be

persuaded beyond reasonable doubt that it was it

and not alternatives two or three".

MR JAMES: Well, Your Honour, that rather gets into the

problem of the nature of the summing up and what

function a trial judge has, which this Court has
already, dealing with to a certain extent on the no

case submission basis in - - -

DEANE J:  I was not trying to foreclose that. I mean, that

is. a different thing. That is when there was just

alternative one.

MR JAMES:  But the fact that it is more complex does not

make the problem easier for a Court of Criminal

Appeal, with respect.

DEANE J:  I think I am putting it badly. I mean, say you

have a case where there is A, B or C, all of which

are open; the trial judge can say to the jury, "If

it is A, B or C, you are entitled to bring in a

verdict of guilty of murder." Well now, a court of

appeal might say, in testing the safe and

unsatisfactory, the evidence did not establish A

beyond reasonable doubt.

Royall 27 6/11/90

MR JAMES:  Yes, that is correct.

DEANE J: Let us say they said the evidence did not

establish A beyond reasonable doubt; it did not

establish Band it did not establish C, but it is

still open to say it established A, B or C.

MR JAMES: Well, Your Hcnour, to a certain extent we have a

slightly different case here.

DEANE J:	I can see that.
MR JAMES:	One view of it is that what happened was the

Court of Criminal Appeal were of the view that none
of (a), (b) or (c) being the combined intent and

factual circumstance propositions before the jury

were open or safe, but the evidence left available

a fourth sibility which was sufficient to

justify t. verdict.

Now, if that is the case, our submiss n is

that the summing up has clearly gone wrong as

removing that matter from the jury and, indeed, we
have never been tried on that basis. If, however,

it is confined to the circumstances put forward to
the jury, the (a), (b) and (c) as put forward to

the jury, and the Court of Criminal Appeal are of

the view that one is not open then what is being

left to the jury in the summing up - - -

DEANE J:  But, they did not say that one is excluded as a

possibility.

MR JAMES: But, the jury is not dealing with possibilities,

here, Your Honour.

DEANE J: But, they are if any one of three possibilities

would be murder and if it is established beyond

reasonable doubt that one of those three

possibilities occurred. Well, now, it may well be

that you have a point somewhere that one of the

possibilities left to the jury was not murder but

if the possibilities left to the jury are all

_murder it is neither here nor there that the Court

of Appeal says that the jury could not have been

established of a particular possibility beyond

reasonable doubt.

MR JAMES:  Your Honour, what I am trying to put is that if

the case is left to the jury on three intentional

bases and there is no room for two of those bases,

at least in the conclusion of the Court of Criminal Appeal performing its function properly in deciding the question that the jury must not or should not

have been satisfied on those bases, then yet we do

not know that the jury did not decide on that

precise basis.

Royall 28 6/11/90

To work in that way would be to permit the

Crown in every case to put the case as widely as possible with the trial judge as it were bound to

·give those directions and to make in effect the

decision unreviewable unless there is no possible

basis - I use the word "possible" in the sense in

which Your Honour did - on which the jury could be

not satisfied.

Now, in our submission, what happens when the

Court of Criminal Appeal performs its function
properly under Morris, under Chamberlain, under

Whitehorn, looking at the verdict as unreasonable

is that it must look at the bases advanced at

trial. If it decides for itself there is some

other basis that has not been advanced by the Crown

at trial which would support the verdict it should

send the matter back for retrial to permit that

basis to be tried.

TOOHEY J:  Mr James, why do you say the Court of Criminal

Appeal excluded the first of the possibilities?

MR JAMES:	Because, Your Honour, when the Court of Criminal Appeal says that "I do not seek how the jury could
safely have concluded the appellant intended to
kill the deceased" and where the Court of Criminal
Appeal says that reckless - - -

TOOHEY J: But that is in the context not of the first

possibility but of the second or third, is it not?

MR JAMES:	No. With respect, Your Honour, it is in the context of the entire passage commencing at line 16
on page 165, the violent assault in the bathroom
and then running through to the conclusion of
line 27 at page 166 and it can be seen that at that
point the Court of Criminal Appeal turns to the
submission; that is, that the verdict should be set
aside as unsafe and unsatisfactory. What the Court of Criminal -
TOOHEY J: But, if you look at the last line on page 165 and

· go over to the fourth or fifth line on page 166,

that really not much attention is paid to the first

possibility but the Court of Criminal Appeal

appears to be saying, "Well, if the jury accepted

the first of those possibilities, it is not hard to
see how they could have concluded that this was a

case of murder".

MR JAMES:  What the Court of Criminal Appeal is saying

there is that if the jury accepted he pushed her

out the window, then it is not hard to conclude they would have found intent to kill or, at the

Royall 29 6/11/90

least, intent to cause grievous bodily harm because

it goes on to say on page 167:

it is not difficult to see how they could also

have come to the conclusion that the appellant

intended to kill or inflict grievous bodily

harm.

Now, it goes no further than to say "if they

accepted he pushed her out the window", but when

one comes down to the bottom of the page, when they

say:

I do not see how the jury could safely have

concluded that the appellant intended to kill

the deceased - ·

that could be, on one view of it, limited to his

acts in the bathroom. It could be in relation to

the entire passage but it is a lot clearer when one

looks at the fact that the court turns to reckless

indifference in the last four lines which could be

related in that narrow fashion, or more broadly,

but is clearly related more broadly at page 167

line 23.

DAWSON J:  That is right. Now, can you not put it much

more simply by concentrating on what the Court of

Criminal Appeal said? In effect, they said, "The only safe basis on which the jury could bring in a verdict of murder was that the accused, by engaging

in violence in the bathroom, caused the deceased to

depart from the window and he did so with the

intention not to kill, but that she should suffer

grievous bodily harm".

MR JAMES:	Yes, from what he was doing with the - - -
DAWSON J:	Well, whatever he was doing.
MR JAMES:	Whatever it was, yes.

BRENNAN J:	No, by reason of what?
DAWSON J:	By reason of the violence, by reason of the

attack with considerable ferocity.

MR JAMES:	Yes.
DAWSON J:	That is the only basis they say on which you

could - because that is consistent with the

intention to kill, but that does not make sense,

because having negatived an intention to kill on

the preceding page, they cannot be relying on that,

on page 167, so it must have been an intention to

cause grievous bodily harm by her departing from

Royall 30 6/11/90

the sixth floor window, and that is the only safe

place for someone to make a finding of murder.

MR JAMES:	No, with respect, Your Honour -
DAWSON J:	That is what you are saying, is it not?
MR JAMES:	But that is not the intent to cause grievous bodily harm they seem to be referring to because if
one takes -
TOOHEY J:	That is simply because they dealt with the

first possibility and left it open. Then they have

moved to the second of the possibilities, I am not
quite sure what happens to the third by express
reference, but anyway, having got to the second the
court then looks at the events within the bathroom

but the intention not to cause death, as I read

that on page 166, is within the context of the

second or query third of the possibilities.

McHUGH J:  Well, I must say that is the way I read it, Mr

James. I read the judgment at page 166 from line 1

down to the end of the sentence in line 5 as

dealing with the first possibility; from line 5

down to line 27 as dealing with the second

possibility; and I do not know what happened to

the third possibility.

MR JAMES:  From the mere discussion that has ensued in the

past few minutes it can be seen that it is not
possible to distill clearly from this judgment

anything beyond the position that the Court of

Criminal Appeal have clearly excluded something

that was left to the jury as a way in which murder

could be found.

We, of course, have and do put the submission

in the words put to us by Justice Dawson that the

one thing they seem safely to be referring to is

intent to cause grievous bodily harm and we take it

be_relating the intent to cause serious bodily harm that since at page 166 below line 11 they appear to

-to the forcing of the way into the bathroom for the

purpose of causing serious harm, for an attack in

the bathroom with the ash tray, lines 15 to 20, an

attack in the bathroom, page 167 line 12 to

line 17, that at no point do they seem to be of the

view that there is an intent to cause serious

bodily harm by attacking with the intent she should

go out the window expressly. If that were to be

what they are referring to, one would have expected

that to be clear enough because that was how the

trial judge left intent to cause serious bodily

harm to the jury.

Royall 31 6/11/90

BRENNAN J: That really means that the Court of Criminal

Appeal misconceived the problem?

MR JAMES: -rt may well.

BRENNAN J: 

And if we go back to the trial itself, there

could have been no doubt but that the act causing
death was going out the window?

MR JAMES: 

As the trial judge expressed it.

BRENNAN J: Indeed.

MR JAMES:	And that was -
BRENNAN J:	And that must have been common ground?
MR JAMES:	No, Your Honour.

BRENNAN J: Well, I will put it another way: it must have

been common ground that by her going out the window

she met her death.

MR JAMES:	Yes.
BRENNAN J:	She did not meet it inside the house.
MR JAMES:	Yes.

BRENNAN J: Then, the question that the jury was asked to

consider at the trial - forget the Court of

Criminal Appeal - was whether or not her going out

the window, just the fact of her going out the

window, was accompanied by one or more of the

intentions - forget the causation -	one or more of
the intentions.	Now, if they were satisfied beyond

reasonable doubt of one or more of the intentions

accompanying her going out the window, and you add

to that the fracas that occurred immediately

before, then what room is there for acquittal?

MR JAMES: Because, Your Honour, it is necessary to find

that the intention was there, not at the time of

-what caused her death but at the time of the doing

of the act that caused the death.

BRENNAN J: Her going out the window.

MR JAMES:  No, his act.

BRENNAN J: Yes.

MR JAMES: His act was not the going out the window. His

act which caused the death was either the
antecedent violence in the flat, the coming in
through the door, the actions in the bathroom or

the pushing out the window.

Royall 32 6/11/90

BRENNAN J: Well, let those be his acts. If at the time

that he did those acts he either intended that she

should suffer thereby, by going out the window,

· death or grievous bodily harm or that he foresaw

that she might go out the window or would be likely

to go out the window and thereby suffer death, and

the jury have found it, what room is there for

acquittal?

MR JAMES:  There is none but the way in which it was put,

concerning, for instance, the antecedent violence,

was not in terms of foreseeing she might go out the

window. When one comes to reckless indifference,

one could well have that he was recklessly

indifferent within the light of the direction

having been given, at the time she went out the

window, when at the time of the act causing death

you have none of the intentional states.

The fright direction, that is causal

hypothesis 3, coupled with reckless indifference,

leaves it, in our submission, effectively open to

the jury to find, looking backwards, that if he did

any act at any stage, and when she went out the

window he thought it was probable should would go

out the window and that it would cause her death,

then he would be guilty of murder.

McHUGH J: That is not the way the trial judge put it at any

stage, did he?

MR JAMES :  No.

McHUGH J: At page 34, line 23, having referred to the

various possibilities of causation, he says:

The first question is whether, at the

time of the act bringing about the death, that

being the time when the deceased left the

building and fell to the ground below, there

was present in the accused an intent to

kill - - -

MR JAMES-:	Yes.
McHUGH J:	And then he goes on and deals with intent to

cause grievous bodily harm or reckless

indifference. So the jury were instructed that the

accused had to have the relevant intent or reckless

indifference at the time death was caused,

whichever one of the four they selected or the

three they selected.

MR JAMES:	No, Your Honour, that is the causal hypotheses. That is not the acts bringing about the death.
His Honour instructed the jury that the act
bringing about the death was the leaving of the

Royall 33 6/11/90

building, the going out the window, consistently

throughout the summing up. He related the time for

the requisite mental state to the time she left the
building.

The causal hypotheses are a different thing. They are the things that cause her to participate in the act causing death and the question is the

relation of the reckless indifference to what he

might have done to cause her to go out the window.

What he did to cause her to go out the window, on

causal hypothesis 3, was to cause her the
well-founded apprehension of further violence and

that is not defined backwards except in the sense

that it had to be something to cause her to have

that apprehension. And what is necessary,

classically, under the section is that at the time

he does that something, he adverts to the requisite

degree to the consequence.

Yet, when one tries to take this summing up, because it is putting all the permutations and

combinations of intent and causal state together,
and to analyse it for the purpose of working out

just how the act, his act, causing death was

accompanied by his intention and caused the

requisite consequence, in our submission, the jury

would have been left in the position where they

quite happily could have lumped it all together and

the prejudice criticized in the reckless

indifference cases, classically, in Pemble and La

Fontaine and so forth would have been caused to the accused.

DAWSON J: Well, it simply amounts to the fact that he must

have had the requisite intention at the time he did

what he did, not at the time she did what she did.

MR JAMES:  That is right and that is the vice of that third

causal hypothesis unless one defines what he did.

That is why we make the submission that it did not

matter in Grimes and Lee because one is dealing

there with an admitted case of murder felony in the

coincidence of intent and act did not have to be

there. It did not receive such analysis in very
early cases because the modern refinement of

reasoning in the very, very old cases was not

there. But it now, under section 18 of the New

South Wales Crimes Act, requires there to be an act

causing death accompanied by the specific

intention.

If I could take Your Honours to the passages

in relation to intention. As Your Honour

Mr Justice McHugh has pointed out, they appear at

pages 34 to 35 and also at page 38 to 39 and in the

Royall 34 6/11/90

first three lines of page 39, in relation to

reckless indifference:

Thus your task would be to consider the accused's actual state of mind at the relevant

time which, as I have said, is the time when

the deceased fell from the building to the

ground below.

What I have tried to put too is that the best guide

to intent is the nature of the act performed by the

individual and particularly when it comes to that

question of reckless indifference, the adversion to

probabilities, one has to have regard to what must

have been in his mind as evidenced by what acts he

did. That requires, in our submission, that

specification, to some degree at least, of the act
sufficient to carry with it the adversion of the

requisite degree and that is why the Court of

Criminal Appeal, in our submission, reached the

view that reckless indifference was not really

open.

BRENNAN J: But coming back to the proposition that

Justice Dawson put to you, it is a question of

intention at the time of what he did, not at the

time of what she did. Well now, there may have

been some relevant lapse of time between what he

did and what she did.	It may virtually have been
contemporaneous on some of the facts.	Was there

any request for a redirection based on the

proposition that the time and the event in respect

to which the intention and direction had been given

had been_misconceived_by the trial judge?

MR JAMES:  No, Your Honour, there was no specific

application for redirection except in the passages

that appear at page 91 and onwards in which

His Honour is drawn to both Crabbe and Solomon and,

in particular, to the judgment of Mr Justice Begg
in Solomon at page 258 which appears at page 92 of

the appeal book and at page 92 line 20:

Yes I understand that but I would be

submitting and asking Your Honour to make a

direction that in relation to causing death,

that mental ingredient of the accused at the

time must be that he foresaw that as a

probable consequence of his action the

deceased would die. As I read that there is

nothing which eliminates that mental
ingredient from the causing death. It only
eliminates the whole of the possibility.

Then His Honour puts the further direction and at page 94 lines 40 and onwards in what the Crown

Royall 35 6/11/90

prosecutor puts, the passage from La Fontaine

dealing with:

"an accused will not be guilty of murder

unless he foresaw that death, was the probable
consequence of this behaviour".

Really, what is being put is in relation to the degree of advertence, but there is certainly

enough put forward, in our submission, to indicate

that what is being done is to draw His Honour's

attention to both things, though the second only by

a side wind.

I should draw Your Honours' attention to

page 88 and what the Crown prosecutor says.	He
puts this at line 20:

If I can just put this submission again to

your Honour. I do not believe that your

Honour has put this to the jury, at least in

this form, but I would ask your Honour to give

the jury this direction: that if they are
satisfied that the accused caused the woman's

death, that is that the woman fell from the

window in one of the three alternatives put by
your Honour, but cannot say which one it was,

then provided that the accused had the

relevant intent or reckless indifference then

he would be either guilty of murder -

and so forth. There is no relationship there. And

at page 86 Mr Cook does put that it was probable

that the risk would cause a threat to life in

dealing with the conduct and referring expressly to

Crabbe.

At page 85 there is the completely ambiguous

statement:

The other one was in relation to reckless

indifference. In relation to the direction

to direct that the accused must have been

aware, at the time he did carry out this act,

that it would probably result in the death of

the deceased.

that was given there I would ask your Honour

And that is what leads to the discussion into

Crabbe. Now, I cannot put, Your Honours, that

there is a specific application that specifically

deals with the coincidence of intent and his act

independent of the discussion of the degree of

advertence. Nor is it clearly put that to direct the jury that the act causing death by way of her

fall from the window is not his act should have

been done, but that certainly - - -

Royall	6/11/90
GAUDRON J:	Can I be somewhat specific in this, because it

seems to me that if you look at the mathematics of

this there were 27 possibilities before the jury?

Let me ask you this question: would it be

murder - and we will put in very simple terms - if

he struck her or assaulted her without actually

striking - with the ashtray intending that she

should - well, say threw it, or moved with the
ashtray - intending that she should be seriously
injured or jump out the window, intending that the

only options available to her were to take the

injury or jump out the window.	Would that be
murder?

MR JAMES:  If his intent in his mind included those two

factual circumstances - - -

GAUDRON J:	As mutually exclusive alternatives.
MR JAMES:	Even if it did not include as mutually exclusive

alternatives. If it included both of them in his

mind, "I will hit her. I will either cause her

harm or she will go out the window - good thing

too." That is murder, yes.

GAUDRON J: Yes, all right, and we can say it, "holding the ashtray in the bathroom" in a way that constitutes

an assault.

MR JAMES:  To make it an unlawful act, yes.

GAUDRON J: Yes. Is there anything else on the evidence in

the bathroom apart from actually pushing her out

the window that would make it murder? Is there any

other possible act?

MR JAMES:  Yes .

GAUDRON J: Yes. What is that, because - - -

MR JAMES:	The going in the bathroom door.
GAUDRON J: All right and that - - -
MR JAMES:	And that is precisely what is referred to in the

Court of Appeal's judgment.

GAUDRON J: Well, how does that -

MR JAMES: Because of the earlier violence outside.

GAUDRON J: Well, unless that is actually something - he is

not intending that by going through the window that

he should actually injure - - -

MR JAMES:  Through the door.

Royall 37 6/11/90

GAUDRON J:  By going through the door that he should injure

her, is it, because - - -

MR JAMES: Well, we say no.

GAUDRON J:  - - - unless the bathroom is so designed that

the going through the bathroom must inevitably

bring the door down upon her there is nothing in

that that is going to seriously injure her.

MR JAMES: Yes, from his viewpoint but from her viewpoint on

the well-founded and reasonable apprehension

viewpoint, the proposition is, "Here comes this

person through the door to assault me again."

DEANE J: But that is not quite accj,rate. If going through

the door is treated as part of the overall attack

and he does it as part of the overall attack

intending to cause grievous bodily harm and the

third causation alternative operates would you

submit that was not murder? He has attacked her

outside; he is going through the door to continue

the attack and -

MR JAMES:  I am trying to work out, Your Honour, what the

overall attack is in the circumstances.

DEANE J:	The attack on her.
MR JAMES:	Yes.  No, but

DEANE J: Continuing with ashtray and what else you have.

MR JAMES:	But that, you see - if at the time he goes through the door he has the intent to kill
her - - -
DEANE J:	No, to cause grievous bodily harm is what the

Court of Criminal Appeal has heid.

MR JAMES: Yes, to cause grievous bodily harm; I will accept

that and that act alone caused the death; that is,

that act separated off from what went on earlier,

caused the death.

DEANE J:  No, the whole thing seen in context brought about

the page 31 consequence.

MR JAMES:  Yes. No, I think I have to accept that if he

went through the door, if having assaulted her in

the flat with an intent to cause her really serious

harm, he went through the door with intent to cause

her really serious harm and that act of opening the
door caused her, whatever the principle be of
causation, to go out the window, then, yes, I think

I do have to accept that that is within the section.

Royall 38 6/11/90

GAUDRON J: Within murder?

MR JAMES: Within murder.

GAUDRON J: Well, that is a concession that if you make -

you do not have my support. I would have thought

at the best and ..... respect of your appeal - - -

MR JAMES:	I notice even at the bar table I have no support for that one.
GAUDRON J:	- - - that was manslaughter because the going through the door has no immediate causal
relationship either with injury or with going out the window but it might be foreseeable that it
would react on her mind in such a way or that it
would cause her to react in such a way as to go out
the window, but that is manslaughter.
MR JAMES:	Yes, now, I carefully exempted causation in what

I was saying. I was confining it to the question

of intent and act interrelating, and I did not mean

to concede murder in terms of causation because I

put that to one side. I had already -

Mr Justice Brennan propounded that argument to

which we would go later concerning causation.	It
is manslaughter - - -

DEANE J:  And I put to you going through the door as part of

the continuing attack, because it was going through
the door as part of the continuing attack which was

made with intent to kill.

MR JAMES:	I am sorry, I thought Your Honour had put it to me in relation to intent to cause grievous bodily
harm.
DEANE J:	I meant, intent to cause grievous bodily harm,

yes.

MR JAMES:  Yes but, Your Honour, the problem arises in this

way.	The mere fact of an attack with an intent to
cause harm, even serious harm - - -

DEANE J: Well, take the example: X shoots Y twice; she

hides in the bathroom; he opens the door and aims

the pistol at her and she goes out the window, he

intending by the shooting and going in to cause

grievous bodily harm.

MR JAMES: 

We could even take it, with the words of some of

the cases that we have cited: "and shouts at her,
'Unless you go out the window I will shoot you
again' - - -

DEANE J: 

No, he does not want her out the window, he is

just intending to cause grievous bodily harm, and

Royall 39 6/11/90

the point is whether you isolate opening the door

out of the attack that has gone on before, or you

see opening the door with intent to cause grievous

bodily harm continuing the attack, but what is an

overall act for the purpose of the statutory

definition.

MR JAMES: Your Honour, from the point of view of intent, one

can often define the relevant acts causing death by
linking them up with intent, however, there are

other limitations on causation, in our submission,

and that includes foreseeability, over and above

the question of intent, where the intent is a

different intent to the intent to cause the

particular result.	Now, if one gets, for instance,
reckless indifference, that	lves, of necessity,

adversion to a probability, or adversion to the

requisite degree of likelihood that the thing will

happen.

Now, it could not - I suppose it could be

suggested, that that is totally subjective, so that

whether there was any possibility or not does not

matter, provided that the accused does conceive of

some fantastic possibility as probable, but

otherwise there would have to be, as the Court of

Criminal Appeal looked at it here, a basic causal

limitation arising in terms of probability. When it comes to the desired end, the specific intent, as Mr Justice Brennan has put to me, it may not

matter what means you employ to bring about your

end, or that the death is achieved by the

unexpected result of the car striking the person

whom you had pushed out of the window before they
hit the tarmac, or whatever. There you have no

novus actus that breaks your chain.

That is what is supported by cases such as

Thabo Meli, that there is a continually operative

chain of causation but where, however, you are not

dealing with that, where you have to deal with this

complex of act, ,intent and causation, there are

limitations and in our submission the limitation

includes foreseeability, which is certainly

applicable for the manslaughter cases and is
applicable at the very least when there is no

specific intent to cause death.

BRENNAN J: 

I can understand all that, Mr James, but

applying it to this case there must be at least a
jury finding that the accused so conducted himself

as to provide grounds for the deceased believing

that she was at grave risk to herself and that was

the cause of her leaping out the window. They must

also have found that at the time she leapt out the

window, the accused had at least the state of mind

of recklessness.

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6/11/90

MR JAMES: 

Yes.

BRENNAN J: 

Now putting those two facts together, the only

prospect of any miscarriage of justice is that the
jury convicted on the basis that he formed that
intention at the moment between when he did the
last of the acts which caused her to leap out the

window and the moment that she went.

MR JAMES: 

And on his case, the last of those acts was

antecedent to entering the bathroom. Thus, he
struck her; hurt her in the bedroom; he may

thereafter, without having done anything to her as

far as he knew, have entered the bathroom and have

been aware that she probably would go out the

window, at some stage in the bathroom; that she

probably would suffer death. Now, trying to put

them together, it is his act and that awareness

which is what causes a real problem, in our

submission, in the summing up. The jury might well

have been able to say consistently with that

summing up, he inflicted grievous bodily harm on

her outside in the flat or he inflicted serious

injury on her, or just injury, outside in the flat;

he entered in; she had a well-founded apprehension

that she would get another bashing and he must have

expected when she went out the window she would

die. That, in our view, is enough for murder and

that would be wrong, in our submission Your Honour,

because that does not give him the opportunity, as

it were, to do the act which causes the death, with

the requisite intent.

McHUGH J: Well, that is why I asked you about that before.

I just find it difficult to see how that case was

ever put as part of the defence.

MR JAMES:  It was the essence of the defence really,

Your Honour, because what he is saying is -

McHUGH J: Well, it was not. The essence of the defence was

that, "You went in the door and she went and jumped

out the window".

MR JAMES:  Yes, "I didn't cause her to go out. I didn't do

an act causing her to go out and I had no intention

that she should go out and what's more, I didn't

even consider the probability she'd go out. She

went out of her own accord".

McHUGH J:  I know, and that was tied up with a denial that

he did anything in the bathroom and I find it

difficult to think that your client would have been

convicted unless the jury came to the conclusion,

in which there was plenty of evidence, that he did

plenty in the bathroom.

Royall 41 6/11/90

MR JAMES: With respect, Your Honour, there was not really

plenty of evidence that he did anything in the

bathroom or even entered it.

McHUGH J: Well, there was blood on the window sill.

MR JAMES:  Yes, and she was bleeding and have a facial and

nose bleed when she went into the bathroom and had

a shower. There was blood on the window sill but

that does not mean he did anything.	None of it was
his blood.

McHUGH J: Yes, but one gets the impression from the

evidence that having got a hiding from him, she got

inside, maybe got away from him, locked the door,

took off her clothes, tried to clean up. There

were tissues in the toilet bowl - - -

MR JAMES:  And blood.

McHUGH J:  - - - and he is still trying to get in. He uses

a knife to prize open the door and ultimately the

door breaks down. Then you have these marks which

the evidence suggests was the result of a swinging

of the ashtray.

MR JAMES:  And no injury to her. The hair could well have

come from the ashtray, but no injury to her head to suggest the hair came from any blow struck with the

ashtray. No evidence as to who used the ashtray.

McHUGH J: 

I find it very difficult to think that if the

jury had accepted your client's view about what
went on in the bathroom as far as he was concerned
that he would have been convicted, and the jury
must have taken the view that he was engaged in

violence in the bathroom.

MR JAMES: 

Of course. But, Your Honour, there would never be any room for any not open verdicts or unsafe and

unsatisfactory verdicts if one had to have the

benefit, as it were, of a jury finding in your favour. Now, in fact, one does get something close

to that in the South Australian case to which I was

going to take the Court, because there their jury

can be relieved of its inscrutability in that it is

replaced by a trial judge, even in murder cases,

who gives reasons and there, we would submit, it

might be perfectly appropriate for a Court of
Criminal Appeal to take the view, "Since the trial

judge said there were three bases available for the

verdict and we only agree on one, none the less,

the verdict should be supported". But with a jury

which is left wrong bases, we do not know, we do

not have the advantage that the South Australians
have.

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6/11/90

DEANE J: But, do you not need to add to what Justice McHugh

has said, the direction at the bottom of page 34,

which was that the intent to cause grievous bodily

harm had to exist at the time when the deceased

left the building?

MR JAMES:  Yes. Well, Your Honour, even adding that

in - - -

McHUGH J: That is favourable to you as is the direction at

the top of page 39. Is not 39 the one about

reckless indifference?

MASON CJ: Yes.

MR JAMES:	I am sorry, Your Honour, I - - -
McHUGH J:	In other words, your client's state of mind had

to be continuing right at the very moment that she

was going out the window.

MR JAMES:  Not continuing.

McHUGH J: Well, it had to exist then.

MR JAMES:  If, as Mr Justice Deane has put to me, there was

a course of conduct in which the state of mind
continued, that was never put to the jury at all.

With the reckless indifference, the problem is how

late it is put. Now, there may have been an

anterior intent to cause really serious injury in

the flat but that is not the answer. It is not

enough to say there was an injury at that point of

time. The question then becomes, as we have dealt

with the causation question.

Now, juries might not like it; the law may not

be attractive to them in this context but it is

necessary that it be explained to them and it was
not so explained by the trial judge nor applied by

the Court of Criminal Appeal, in our submission,

unl.ess one can say that those passage on page 16 0

are to our advantage.

DEANE J: But, does that not, the bottom of page 34,

highlight what Justice McHugh was putting to you

and that is, it was put to the jury, in effect,

"His account is this; her account is that. You

must decide before you can convict him that at the

very moment she went out the window he was still

intending to cause grievous bodily harm" which, as

I understand it, was not consistent with his

account.

MR JAMES: It certainly was not. His account was certainly

that he did not intend to cause her any serious

bodily harm at or in the bathroom at all.

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Now, if the jury found the verdict on that basis, that might be one of the bases.	They might
have found the verdict on all of the bases.	They

might have found the verdict on only one basis but

one cannot know. As Her Honour has pointed out,

there the permutations and combinations of causal hypothesis and intent that allowed some - well, I

will agree with the calculations.

GAUDRON J: But is that not the problem with this case? It

has been so abstracted by legal hypotheses that the

practical alternatives have been obscured. There

were three practical alternatives: he pushed her;

he did something intending thereby that she should

either be injured or go out the window, and she
went out the window; or thirdly, he did something

which it was reasonably foreseeable would cause her

to go out the window, and she did, which is not

murder.

MR JAMES: Precisely.

GAUDRON J:  And they were the only bases on which her death,

in practical terms, could be sheeted home, and they

were left on the basis of abstraction and not

practical alternatives. Is that not the problem

with this case?

MR JAMES:  Precisely. And that is what led this Court in

similar situations, including Pemble, to intervene

and to substitute a verdict of manslaughter.	And
that is why we put the submission, as we have

submission 1, and 2, concerning causation, and we

have put at ground 2 that the case was really not

one for reckless indifference meaning thereby

reckless indifference murder and cite Pemble and La

Fontaine for it.

In addition, of course, there was the

direction on foresight, and that was put in terms

of a risk. It was at one stage only amplified to

include risk of a probability, but thereafter all

that is put is risk. That direction was taken from

the only other case that we have been able to find

where an accused in these circumstances has been

convicted of murder, Tavai, and that direction, or

a paraphrase of it, can be found precisely in

Sir Garfield Barwick's words in Pemble - "risk of a likelihood" - in that precise passage which raises
His Honour's suggestion that "possibility" might be

enough, dealt with subsequently in this Court in

Crabbe.

What Your Honour Justice Gaudron puts to me,

that it is a case that has become overly

sophisticated or overly complicated, is not the

defence fault. The Crown chose to put the case on

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all available possibilities or, indeed, things

that, in our submission, were not ever really

possibilities at all and that is what has caused

the complications the way through.

Our submission is that the Court of Criminal

Appeal has whittled away at some of those

possibilities but not whittled away enough. It is

not enough, in our submission, to say that we are required to deal with everything because although the trial judge left the 27 available the Court of

Criminal Appeal does not seem to have, from its

viewpoint, even considered the direct

interrelationship of his act, intent and causation

such as to consider, adequately, in our submission,

the matters that it left open. I note the time.

MASON CJ: Yes, we will adjourn until 10.15 tomorrow.

MR JAMES:  May it please the Court.

AT 4.14 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 7 NOVEMBER 1990

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