Shaw v MIMA, Ex parte Attorney-General of the Cth

[2002] HCATrans 385

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2002

B e t w e e n -

CHRISTOPHER IAN CLOTHIER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2002, AT 12.15 PM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please the Court, I appear for the applicant with my learned junior, MR P.A.B. BLACK.  (instructed by Caldicott & Co)

MR P.J.L. ROFE, QC:   If your Honours please, I appear with my learned friend, MR J.P. PEARCE, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia))

GUMMOW J:   Yes, Ms Shaw.

MRS SHAW:   May it please the Court.  The question of principle that arises in relation to this application for special leave is the approach of the Court of Appeal to the question of whether or not other defences or routes to acquittal are available to an accused.  In addition, we say there is a miscarriage of justice.  This 20-year-old man was sentenced to life imprisonment with a non‑parole period of 17 years and the trial judge had left to the jury the issue for them upon the basis of determining whether or not the accused was the aggressor and invited the jury to find there was no issue of self-defence raised if his version was rejected.

Your Honours, can I come first of all to the question of the approach of the Court of Criminal Appeal by proceeding immediately to the judgment of his Honour Justice Mullighan in the application book.

KIRBY J:   What page?

MRS SHAW:   Page 117.  Can I take your Honours ‑ ‑ ‑

KIRBY J:   We have 15 cases, so could you just say what you say are your – I think you have three points in the case?

MRS SHAW:   Yes.

KIRBY J:   One of them is the defence of property.  Are you pursuing that?

MRS SHAW:   Yes.

KIRBY J:   That was not reserved at the trial, was it, and it is said it was not really in contest in the evidence at the trial?

MRS SHAW:   Your Honours, it was specifically put by the prosecutor to the accused that he had made up a story that the fight was about the attempt to take his car and that was the basis upon which his Honour Justice Williams, in dissent, said that the issue of defence of property had clearly been raised at trial.

KIRBY J:   Yes, I remember reading that but at the trial, counsel did not ask for redirections on that point?

MRS SHAW:   Counsel did not ask for that defence to be ‑ ‑ ‑

KIRBY J:   It is really a Van den Hoek point, is it not?

MRS SHAW:   It is.

KIRBY J:   It is saying that the judge had a duty to canvass something which was not really agitated at the trial.

MRS SHAW:   Yes, a duty, that is so.  Because it was an element of the offence that the prosecution had to prove that this attack was unlawful, the prosecution had to disprove self‑defence.

KIRBY J:   So, the only evidentiary basis for it was some questioning of the accused that relied on his having raised this as an exculpation of some kind?

MRS SHAW:   No, more than that.  The accused’s account was that the three intruders to the camp ‑ their vehicle had been stuck and they had come to his camp in an attempt to persuade him and coerce him into taking his vehicle or letting him drive them to town in his vehicle and he was intoxicated and did not want to drive them and they were intoxicated and he would not let them use his car and this was the source of the attempts by the accused to get them to leave.  At the time ‑ ‑ ‑

HAYNE J:   What is the high point of the evidence suggesting that the accused did what he did in defence of property?  What is the high point?

MRS SHAW:   The high point is at the time that the accused goes off to urinate and the deceased approaches him, the last thing that the deceased says to him before the altercation is, “I’m going to take it anyway”, and the accused has told him to “fuck off”.  So, it is the last ‑ ‑ ‑

HAYNE J:   That is the high point.  Is there anything from the mouth of the accused saying, “I did this in defence of property”?

MRS SHAW:   No, your Honour, for the very reason it was inconsistent with the prime defence, namely, the stabbing occurred “because I was scared for my life”.

HAYNE J:   Yes.

MRS SHAW:   His defence, if you like, his entire account of what caused the fight, relates to the car.

KIRBY J:   Quite, but is that not the point, that this was not really his excuse, this was not really his contention?  Does that not bear out the prosecution’s argument that this did not really have an evidentiary foundation in the way the trial was run?

MRS SHAW:   Your Honour, there is a step beyond that, with respect, and that is that the prosecution specifically asked the jury to find that the accused was telling a story of a link, namely, the accused was blaming the threat to take his car as the explanation for the stabbing.  So, the prosecution as part of their argument were saying to the jury, “This is the accused’s story, his story is that this fight was over the threat ‑ ‑ ‑”

KIRBY J:   You are asking the judge to say, “Ladies and gentlemen of the jury, the accused does not raise this but the prosecution has raised it as a possible explanation and you’ve got to consider this and see whether there is any evidence on which you could come to the conclusion that that was the real explanation of what the accused did, and if that is, then I’ve got to instruct you”, and go on to instruct them on that basis is a very flimsy foundation.  I know this is not what you started with but it is the point on which there was a dissent in the Court of Criminal Appeal.

MRS SHAW:   I appreciate that, your Honour, but the prime submission is that the prosecutor specifically put to the jury that the accused’s account was that the fight occurred because of the threat to take the car.  So, in other words, the prosecutor was asking the jury to find that this is what the accused was saying and then telling the jury that that was nonsense and he had made up that story that the fight was over the threat to take the car.  If the jury accepted the Crown’s premise that indeed this is what the accused was saying, that the fight was over the threat to take the car, then the jury had to then be satisfied beyond reasonable doubt that the fight had nothing to do with the threat to take the car, that is, the accused’s actions were not related to the threat to take the car.

Your Honours, the prime submission we make on this application is the way in which his Honour Justice Mullighan dealt with provocation because at page 117 what his Honour does, and indeed his Honour Justice Bleby who joined with his Honour Justice Mullighan in expressing this view, is to say at page 117 ‑ ‑ ‑

GUMMOW J:   Paragraph 60.

MRS SHAW:   Paragraph 60 – the conduct, namely the conduct of the deceased in grabbing the applicant and having grabbed the applicant and the accused having produced the knife, then having grabbed the knife and attempted to wrest it from the accused and in response to that the accused stabbed him, his Honour said, “this conduct could not amount to provocation.”.

HAYNE J:   Why could it?

MRS SHAW:   Your Honours, for the reason of ‑ ‑ ‑

GUMMOW J:   You have to read the next sentence, have you not?

MRS SHAW:   It is the next sentence that I am mostly concerned about:

There is no evidence of the required loss of self‑control by the appellant or from which it could be inferred as may be seen from his own evidence as to why the stabbing occurred.

That is the error, because the accused’s own evidence was that he acted because he was scared for his life.  The approach of his Honour Justice Bleby at page 151 was taking the same approach in relation to the accused’s account, his explanation, and this was in relation to the issue of defence of property, was that he used the knife not because of a threat in relation to his car but because of him being scared for his life.

Your Honours, in the judgment of this Court in Van den Hoek v R, his Honour Justice Mason, as he then was, at page 168 made it plain, we say with respect, that:

the emphasis in modern judgments in relation to the issue of provocation is of a sudden and temporary loss of self‑control as the central element in the doctrine.

Why this arises in this case in such a stark way, we say, is that the Crown case to the jury was that the accused lost his temper, lost control, because his hand was cut when the deceased tried to grab the knife.  In other words, the specific case upon which the Crown asked the jury to convict by rebutting an intention, a specific intent, was to find that he lost self‑control.

HAYNE J:   Are you saying that provocation is engaged wherever there is a loss of self‑control?  Are you making as broad a proposition as that?

MRS SHAW:   No, your Honour, I am certainly not.

HAYNE J:   Then what is it that you say is the provocation?  You focus at the moment on was there loss of self‑control.  What do you say was the provocation?

MRS SHAW:   The provocation was not just the build‑up of the threat to take his car, the refusal to leave, the fact that he had been threatened with a fight by the other person and had stepped back into a fire and his foot had been burnt, then the continuing threat to take his car, but most importantly the unlawful assault upon the applicant when he went to urinate, having been followed, and then the attempt to wrench the knife from him which the accused perceived was going to be used on him – just like in Tikos (No 1) where the provocation was the belief that the deceased was going to use the gun on him.  So, it in the unlawful act of the deceased which is the provocation, that is, the unlawful assault is the ultimate provocation, and it is that unlawful act which, just as in Masciantonio and we say in…..was described ‑ ‑ ‑

GUMMOW J:   What is the act in Masciantonio?

MRS SHAW:   The act was the assault, initial assault by the deceased, the father of ‑ ‑ ‑

HAYNE J:   It was abuse, was it not?

GUMMOW J:   Abuse, was it not, racial abuse?

HAYNE J:   Racial abuse with a sexual overtone?

MRS SHAW:   Yes, leading up to a kicking as the trigger to the final altercation.  But, your Honours, we say that the history of provocation essentially commenced with conduct that was unlawful, that is, an unlawful assault, and expanded to include words that were insulting could also in certain circumstances amount to provocation.  Your Honours, here the prosecution in their address to the jury accepted for the purposes of rebutting self‑defence that when the accused said he “freaked out”, that that was an honest statement by him.

Can I just take your Honours quickly to the book of materials that have been filed by the applicant and behind tab 9 at line 26 what was put to the accused in cross‑examination was that:

when you stabbed Mr Mueller to the chest you had lost your temper, you were angry with him.

And the accused said he was “scared”, that was his reaction.

When the prosecution addressed the jury it was put to the jury that – and this is at the first page behind tab 10 – that the accused’s account - and indeed this was confirmed by the prosecution witness Mr Hein - was that there was a struggling, Mr Hein described them wrestling, and at line 10 the submission was put, “he cut his hand on the blade.”  The accused’s account was this was cut when the deceased was attempting to get the knife from him:

He realised he was cut and he freaked out.  That may well be the most honest thing the accused has told you.  Maybe that’s exactly what he did, that he did freak out; that it becomes a question of what you mean by the words ‘freak out’.  Maybe members of the jury what happened then the accused became very angry, having been angry all morning, became so incensed he then stabbed Mr Mueller to death.  What he told you is exactly what he did, he freaked out.

HAYNE J:   Do we have the evidence where the words “freak out” are used?

MRS SHAW:   Yes, they are included in the judgment, your Honour, in the account set out of the accused’s evidence where he says ‑ page 107, your Honours.  Your Honours will see he describes:

Q  Then what happened.

A  Freaked out.

In cross‑examination he was asked what he meant by that and he explained ‑ page 112, paragraph 39.  So, your Honours, the prosecution essentially asked the jury to look at that it was an honest statement to say he “freaked out”.  We say that the accused’s account that he freaked out because he was scared for his life bears out the suddenness of his reaction and importantly that it was a responsive reaction to the actions of the deceased.  Importantly, your Honours, with respect, the prosecutor says at page 488 - and this is again behind tab 10 - that these short jabs are explained because he is angry, he has lost his temper.  At line 25, finally the prosecutor leaves the jury to consider the issue of guilt and whether self‑defence is rebutted, at page 496, on the basis that:

He murdered a man on the banks of the Murray –

this is at line 31 -

by stabbing him after he had enough.  He had been at him all night, wanted him to leave; he lost control, he ‘freaked out’ – in the accused’s words – and he killed him.

So, on the prosecution case they invited the jury to convict and the basis upon which this conviction was therefore, we say, achieved, was to invite the jury to conclude that this man had, over a build‑up of time, had enough and at the final altercation when his finger had been cut to the bone he “freaked out . . . lost control”, lost his temper and killed him.  We say, therefore, that that clearly raised an issue of provocation.  Coming back to what his Honour Justice Mullighan said, far from there being no inference available that the appellant had lost self‑control, it was the very basis upon which the Crown sought a conviction against the accused, and successfully beyond a reasonable doubt.  We say that therefore, not just on the evidence but indeed on very basis upon which this man was convicted, he was entitled to have the issue of provocation left to the jury.

GUMMOW J:   What do you say about self‑defence?  That was left.

MRS SHAW:   Yes.  In relation to self‑defence, your Honours, what was not left was in particular that the accused said that his actions was he believed the deceased was going to take the knife off him and that is why he continued to stab him until the deceased let go.  The trial judge failed to direct the jury that an accused is entitled to forestall an attack by, if you like, attacking first, if he believes that is necessary to defend himself, but rather pitched the argument to the jury or the question for the jury on the basis of, “Are you satisfied the accused is the aggressor?”  If the jury were to answer that question without appreciating that an accused has the right to take the first act if he believes it is necessary to defend himself, then the jury would have potentially convicted the accused on an incorrect premise.  That, your Honours, appears in the trial judge’s directions at page 63 of the application book, commencing at the bottom of the page, where this is the only scenario that the trial judge puts to the jury of arriving at the ultimate issue of guilt in his entire summing up.  He says he will finish with a few observations of his own.  At line 22 he says:

a useful starting point is to ask whether you are satisfied that the accused was the aggressor in the lead up to the critical incident and to ask whether you are satisfied that the deceased was tame or placid –

Then at line 5:

Your view about these questions may assist you in deciding what happened and in considering the questions or the issues of intent and self‑defence in the critical altercation –

Then, coming into how they use that finding, his Honour tells the jury:

if you are satisfied that the accused initiated the altercation and used the knife, that is, if you are satisfied that he was the aggressor, that he started the fight and that he used the knife, in other words, if you reject his version that the deceased confronted him, you might think there was no occasion for self‑defence with the knife.

Your Honours, importantly, he goes on to say that:

but if the accused started a fight and produced the knife at the outset, that is, if he produced the knife not in response to any aggression or threat by the deceased, but in anger as part of his aggressive behaviour or aggression towards the deceased, in those circumstances the accused cannot claim self‑defence if the deceased tried to grab the knife.

He then puts to the jury the other alternative at line 22:

On the other hand, if it is reasonably possible that the deceased approached the accused swinging his shoulders, looking aggressive and took hold of the accused, then, of course, the struggle takes on a different complexion.  On the accused’s version he responded to the deceased’s aggression.  You would need to examine the deceased’s behaviour from the accused’s perspective and look at the accused’s response to the threat as he perceived that threat.

Your Honours, the critical threat to which he responded was the attempt to wrest the knife from him after his finger had been cut.  Your Honours, in that respect, the trial judge failed to direct the jury that the jury could also look at Hein’s evidence to see whether or not an issue of self‑defence arose because on Mr Hein’s evidence there was a struggle and a wrestling, so the error at line 13 of page 64 in directing the jury that “if you reject his version . . . you might think there was no occasion for self‑defence” excludes the jury from considering the evidence of Mr Hein.

KIRBY J:   This is another case where counsel at the trial, looking at what his Honour was directing in context, did not see fit to reserve any error on his Honour’s part.

MRS SHAW:   Your Honours, the question of whether or not there are other defences should be left, we say is a question that – in fact, the Crown raised the issue of provocation in this case.

KIRBY J:   Yes, but his Honour, about giving the description of the deceased swinging his shoulders, was merely repeating what, as I understand it, was your client’s version of events.  That was reminding the jury of the evidence on that point.  Now, at the end of his Honour’s charge there was no reservation by counsel at the trial to reserve the correctness of his Honour’s direction on this point, on self‑defence.

MRS SHAW:   Your Honour, it was not erroneous in so far as his Honour described the facts; it was erroneous, we say, in so far as his Honour identified the question of law for the jury.

KIRBY J:   Yes, but no application was made to his Honour to correct what his Honour had said.

MRS SHAW:   I appreciate that but the effect of the direction was to incorrectly identify for the jury the issue for them on self‑defence, so that when the jury came back after four hours and said, “We have read your Honour’s directions on the law and we don’t understand any of them”, his Honour did not redirect at all on the facts and the only issue, the only basis left to them was to determine who was the aggressor.  We say that that was an incorrect question upon which to consider whether or not self‑defence had been excluded by the Crown.

KIRBY J:   The jury’s return with its cri de coeur is really an indication of where we have gone with successive appellate intervention in these matters.

MRS SHAW:   Your Honours, it was the duty of the trial judge, as his Honour Justice Williams said, quite apart from what counsel raised, to leave other ‑ ‑ ‑

KIRBY J:   That is the authority of this Court too, but it has to have an evidentiary foundation and trial counsel have their own duties to reserve alleged errors of law in the directions.  Anyway, I think we understand the point you put.

MRS SHAW:   Thank you, your Honours.

GUMMOW J:   Mr Rofe, we would like to hear from you just on provocation.

MR ROFE:   If the Court pleases.  Your Honours, I have not included the materials in discussion with the court between counsel and his Honour in relation to this.  It is very short, if I could read from page 458 of the trial transcript.

KIRBY J:   Where do we find that?

MR ROFE:   I am sorry, you do not have it, your Honours.

GUMMOW J:   We do not have it?

MR ROFE:   No.  Mr Pearce, the prosecutor, said:

I wanted to raise a couple of matters about the summing up so we are all at one with where we go.  I’m not sure it does arise the vexed issue of provocation is something we need to raise if only to conclude it may not be something your Honour has to lead.

HIS HONOUR:   Are you suggesting I should lead provocation?

MR CALDICOTT:   No. 

HIS HONOUR:   I won’t be leading it. 

MR PEARCE:   That’s not necessarily the test.

HIS HONOUR:   I understand that’s not the test, I appreciate that, but in my view this is not a case in which it is appropriate to lead the defence of provocation.

That was the entire discussion as to it.

Although I accept the defence attitude is not determinative, I do say it is relevant in the sense that an analysis of the evidence at the time by his Honour and counsel is really as good a test as whether there is an evidentiary basis to leave the provocation.

KIRBY J:   It may also be relevant to whether there has been a miscarriage.

MR ROFE:   It could be, your Honour.

KIRBY J:   If conducting the case and the way it was conducted and the way the evidence fell out of those at the time, including the judge and the trial counsel for the applicant, did not consider that the matter should be put to the jury, that is not determinative but it is a pretty significant matter.

MR ROFE:   No, I accept that, your Honour.

HAYNE J:   Would a defence of provocation or would instruction about provocation have been understood by the defence side of the case as undercutting the case they sought to make of self‑defence?

MR ROFE:   I think that is right and that was the Lee Chun –Chuen point, that you cannot put an accused in that sort of dilemma if they make a tactical decision to not take up something that is going to weaken or destroy their primary defence of self‑defence.

HAYNE J:   And how would it have done so?

MR ROFE:   It is difficult to see in these facts, your Honour.

HAYNE J:   I must say to you it is not evident to me that the two were inconsistent which, if right, would make the explicit rejection of putting provocation perhaps take on a different significance, but it is not at the moment evident to me why the two could not have run in tandem if they were open.

MR ROFE:   Yes, in my submission, there was just no evidence of words or conduct that could amount in law to provocation.  Really, it raised itself only by the use by the accused of the expression “I freaked out”.

KIRBY J:   There is, firstly, suggestion that he was cut on the hand and secondly, I think, there was a suggestion he was burnt.  Did that not ‑ ‑ ‑

MR ROFE:   He said that he had stepped back into a fire.

KIRBY J:   Yes, into the fire.

MR ROFE:   Not the deceased but another man, Wilksch, he was the man who said, “If you want to fight, I’ll fight you”.  That was denied by the accused, I think.

KIRBY J:   There was some objective medical evidence, was there not, that he had been burnt?

MR ROFE:   Yes, there were blisters apparently, but that was certainly not conduct of the deceased that brought that about on any version of the evidence.  That really, I submit, is why his Honour was quite correct in saying, “I’m not leading provocation, there is no evidentiary basis for it”, not so much in the sense of the loss of control but rather in the sense that there was no words or conduct by the deceased capable of amounting to it.  In that respect I say the approach in the Court of Criminal Appeal was correct.  Is there any other aspect your Honours would like to hear me on?

GUMMOW J:   No, thank you.  Yes, Mrs Shaw.

MRS SHAW:   Your Honours, as to the two defences running in tandem, we say that that is precisely what is addressed in Van den Hoek, in particular at page 169 in the judgment of his Honour Justice Mason, as he then was, because his Honour said:

The failure of an accused person to testify to loss of self‑control is not fatal to a defence of provocation or a case in which self‑defence is raised.  Because the admission of loss of self‑control is bound to weaken, if not destroy, self‑defence, the law does not place the accused in a dilemma.

Hence, the only issue here, the difference between self‑defence and provocation, was the denial of loss of self‑control.

KIRBY J:   Yes, but here we are as an appellate Court, the final Court in the country and we are asked to upset an extensive trial on a point which your predecessor did not really pursue at the trial and where the evidentiary foundation is really very, very thin.  I mean, a large enterprise goes off because the judge did not give a direction on provocation which you did not want at the trial, and what do we have?  We have “I freaked out, I got a cut on my hand and I stepped back and I got a few blisters”.

MRS SHAW:   Your Honours, with respect, it is more than that.

KIRBY J:   Not of provocation.

MRS SHAW:   On a provocation it was a period of about two hours when these people – three, the group – had refused to leave the camp and the reason that Mr Wilksch was involved in the causing of the burnt foot was that when the accused was trying to tell them to leave and refusing to let them take his car, Mr Wilksch stepped in and said “Well, I’ll fight you then” and the accused said “I don’t want to fight anyone” and stepped back and burnt his foot.  These three people over that period of time not only would not leave his camp but, most importantly, continued to pester him about taking his car until the threat to take it unlawfully.  The accused had gone off to urinate, he was trapped between the river and the deceased and when the deceased grabbed him, that is when the knife came out and it was, as he said, the suddenness of the cutting of the finger that caused him to “freak out”.  Those words “freak out” are precisely what his Honour Chief Justice King in Earley’s Case considered raised an issue of loss of self‑control.  So, in essence ‑ ‑ ‑

HAYNE J:   That amounts, Mrs Shaw, does it not, to saying that the provocation lies in the fact that the knife he produced, he unfolded, folded back on his finger in the course of a struggle?

MRS SHAW:   Yes, and caused him to “freak out” and we say, importantly, that the Crown here have persuaded the jury that that was responsible for a loss of self‑control.  So, the Crown having essentially confirmed with the trial judge that provocation is not going to be left are then at liberty to invite the jury to convict on the basis of, yes, he is telling the truth when he said it was sudden, that it was the deceased’s conduct that caused him to freak out but, however, he did it because he lost his temper

and lost self‑control, and we say that the result is that we have a conflict between the case of Earley in our court, and this case ‑ ‑ ‑

GUMMOW J:   We have heard that.  You are in reply, you know.

MRS SHAW:   If your Honour pleases.

GUMMOW J:   We will take a short adjournment.

AT 12.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.50 PM:

GUMMOW J:   We are not convinced that in the actual evidence adduced at trial it was incumbent on the trial judge to direct the jury on the footing that there was a reasonable possibility that the applicant had stabbed the deceased to protect his motor vehicle from being taken.  The point was inconsistent with the applicant’s conduct of his case at trial.  No request for redirection was reserved and we see no prospect of success on this ground.  Nor are we convinced that a proper basis existed in the evidence at trial to warrant a direction on provocation.  In that context, the direction concerning self‑defence would not warrant a grant of special leave.  No other basis exists for such a grant of leave and no miscarriage of justice has been demonstrated.  Special leave is refused. 

The Court will now adjourn to take the second application at 2.00 pm.

AT 12.52 PM THE MATTER WAS CONCLUDED