Sievers v The Queen

[2005] HCATrans 663

[2005] HCATrans 663

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S70 of 2005

B e t w e e n -

ROBERT THEO SIEVERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 12.11 PM

Copyright in the High Court of Australia

MR J.S. STRATTON, SC:   May it please the Court, I appear for the applicant with my learned friend, MR R.J. BUTTON.  (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

KIRBY J:   Yes, Mr Stratton.

MR STRATTON:   Your Honours, in this matter the appeal was lodged out of time by less than three months.  I seek an order ‑ ‑ ‑

KIRBY J:   What is your attitude to that, Mr Smith?

MR SMITH:   There is no opposition to that order.

KIRBY J:   Yes, you will have that order.

MR STRATTON:   Thank you, your Honour.  Your Honours, the first grant of appeal relates to the partial defence of provocation.  The statutory test which is set out in the written submissions ‑ ‑ ‑

KIRBY J:   Yes, well there was a departure from the language of the statute though on a number of occasions the learned trial judge did come back to the correct statutory language both in the oral and written submissions.

MR STRATTON:   That is correct, but ‑ ‑ ‑

KIRBY J:   So the question is whether the use of that – the words of departure attract that recent decision in Heron or whether it is cured enough by the use of the correct language.

MR STRATTON:   Your Honour, the incorrect test, that is the test whether or not the conduct of the deceased could be expected to have so induced the conduct of the accused appeared repeatedly both in the summing‑up, and that is at application book 69 to 70.  It is there on a number of occasions ‑ ‑ ‑

KIRBY J:   Yes, we are aware of the fact that it appears on a number of occasions and it is certainly undesirable.  It seems to me to depart but the question is did it lead to a miscarriage of justice in all of the circumstances of this case especially because the trial judge did repeatedly use the correct language of the statute.

MR STRATTON:   Yes, could I just add that his Honour also gave the incorrect test in the written directions as well and that appears at pages 10 and 11 of the application book.

KIRBY J:   Yes, I appreciate that it was in the written as well and that of course, in a sense, makes it worse but it still leaves the fundamental question as to whether there is sufficient error.  It may be the second point we will have to think of to see whether that lifts it into this Court.  I was not convinced, I should say to you, that the phrase he used “could be expected to have” was equivalent to probabilities. 

MR STRATTON:   We say it is certainly along that path.  My submission is that the phrase “could be expected to” certainly conjures up a higher degree of probability than the word “could”.  If I could put it this way, this Court could grant special leave in every case today, but if the question is rephrased as “could this Court be expected to grant special leave in every case”, in my submission, it is a very different question likely to have a very different answer.

KIRBY J:   Cause either grief or heart attacks at the Bar.

MR STRATTON:   Yes, so my submission is ‑ ‑ ‑

KIRBY J:   You should not count on it.

MR STRATTON:   No, and the dictionary definition of the expression ‑ ‑ ‑

KIRBY J:   It is just a possibility.

MR STRATTON:   Yes.  The dictionary definition of “expect” is to regard something as likely to happen so again my submission is that the phrase that was repeatedly used conjures up the concept of probability in the jury’s mind.  Now, this was a case where very much the – we say in fact that the sole issue in the case in reality was the question of provocation so it is a case where, in my submission, the misdirection went to the very heart of the case. 

KIRBY J:   Yes, we understand the point.

MR STRATTON:   Yes.  Your Honours, the current situation is that the majority in the Court of Criminal Appeal in effect gave judicial approval to the directions that his Honour gave and that is a significant matter particularly given that the partial defence of provocation exists in nearly every Australian jurisdiction as has been spelt out in the written submissions so ‑ ‑ ‑

KIRBY J:   I did not read their Honours to have given approval.  I thought that they simply said that when you had regard to everything that had been said by the trial judge that it was not requiring of their intervention. 

MR STRATTON:   As I understand it, your Honours, they are not, as it were, taking your Honour’s approach which was that there was error but that the error was covered by other things his Honour said.  As I understand it, the majority in effect said ‑ ‑ ‑

KIRBY J:   What phrase do you point to specifically that gives approval as distinct from acceptance of what his Honour did in the whole circumstances?

MR STRATTON:   If I could take your Honours to page 128 of the application book, that is in the judgment of Justice Levine, at the end of a consideration of his Honour summing‑up.  His Honour said in relation to this ground:

I would hold that no error has been shown.  Rule 4 should apply.

KIRBY J:   That is error of the kind that required the intervention of the Court of Criminal Appeal.  I do not think that is - in the context – I do not think that is giving the seal of good housekeeping to this variation.  I mean, I know judges have to speak to juries and they have to explain things in ordinary, colloquial terms and not just read out statutes as they do in America but it is undesirable to get away, especially as this has been the subject of a number of applications and appeals in this Court.  Anyway, I think we have that point.  Explain the second point.

MR STRATTON:   Your Honours, the second point is in relation to consciousness of guilt.  There was considerable evidence in the trial about the conduct of the applicant after the killing took place and that evidence was not contested, the evidence being that he had told lies; that he had fled and changed his appearance, nor was there – contrary to what has been asserted by the Crown – an issue at the trial that the motivation of the applicant in doing those things arose from his consciousness of guilt.  The only issue in the case was whether or not it was a consciousness of simply having killed someone or a consciousness of murder.

The Crown’s submission takes issue with our assertion that this trial was very much about a one issue case.  It was a case about provocation.  In my submission, at nearly every stage it has been made clear that the only issue in the case was indeed provocation and that was clear both from the Crown’s opening at the trial and his closing address when he referred to the issue of provocation being the major issue.  The trial judge at page 83 of the application book at line 51, his Honour in sentencing the applicant said:

The defence case at trial concentrated upon the issue of provocation allegedly offered by the victim to the prisoner.

Similarly at application book 146 and 153 it was clear that the Court of Criminal Appeal regarded provocation as the only issue.  In my submission then, the question of what the jury could make of the applicant’s behaviour after the killing became very critical.  Then counsel for the applicant’s address on the question of consciousness of guilt is virtually set out in its entirety at pages 130 to 131 of the application book where it is quoted by the Court of Criminal Appeal and it is clear that there was no contest at the trial that the applicant’s behaviour was caused by his guilt so the only issue taken by then counsel for the applicant was whether or not it was consciousness simply of the mere fact that he had killed the deceased or whether it was a consciousness of guilt at murder and that was the way that counsel approached that in the address to the jury but there was no, as it were, judicial imprimatur given in relation to that by his Honour.

His Honour in his directions, rather than, in my submission, moulding the directions to the facts of the case, gave a rather unhelpful example to the jury of – and this is at pages 37 to 38 of the application book ‑ ‑ ‑

KIRBY J:   But he did say, did he not, that it is not just consciousness of guilt of any old thing.  It has to be of the crime charged.  He said that specifically and the crime charged was murder.

MR STRATTON:   That is true but, in my submission, his Honour should have moulded his directions to cover the facts of this case.  In other words, he should have told the jury, as defence counsel have told them, that they would have to be satisfied that it was consciousness of guilt of murder and not, as it were, a killing mitigated by provocation.  The example that his Honour gave at the bottom of page 37 of the application book was this:

Frequently, a person might be charged with the armed robbery of a bank.

This is the third‑last line on the page.

He might give an entirely false account of his relevant movements.  The reason why he gives, in that particular case, a false account of what his movements might be,  - depending upon the circumstances and depending upon the evidence of the course,– that if he were to give a truthful account, he would have to disclose that he had been committing adultery –

Now, the problem of course with that is that currently adultery of course is not a crime in the State of New South Wales so the behaviour that he was ‑ ‑ ‑

KIRBY J:   Not for some time.

MR STRATTON:   No, the behaviour that was said to be another potential explanation for the behaviour, it is really very far from the facts of this case because it is not a crime and it is submitted that his Honour should have directed the jury that they would have to be satisfied that the applicant acted out of consciousness of guilt of murder and not simply the crime of manslaughter.

KIRBY J:   We went into all these issues in Zoneff where we talked at some length about these directions.  The very phrase “consciousness of guilt” is a lawyers’ expression.  One wonders what juries make of it. 

MR STRATTON:   It is problematic, in my submission, your Honour, particularly in the facts of this case where in reality we say that the behaviour of the applicant after the killing was intractably neutral, that the jury in reality should ‑ ‑ ‑

KIRBY J:   It was not entirely neutral.  He fled the State and ‑ ‑ ‑

MR STRATTON:   Well, it was neutral in the sense of, in a case where the only issue is whether it is manslaughter by way of provocation or murder.

KIRBY J:   Changed his name.

HEYDON J:   Stole money.

MR STRATTON:   Yes, that is conceded but ‑ ‑ ‑

HEYDON J:   But you asked, or at least the counsel at the trial for the defendant asked for a direction different from that which the judge gave but it did not match the criticisms you are now making and it was virtually the same as the one the judge gave. 

MR STRATTON:   That is so apart from counsel at the trial specifically asked for the direction to be given in terms of consciousness of guilt of murder rather than manslaughter.

HEYDON J:   Well, guilty of some crime or other, but that he is guilty specifically of murder and the suggestion was that the words “for example, manslaughter” should have been added.

MR STRATTON:   Yes.

HEYDON J:   It does not seem a substantial difference.

MR STRATTON:   In my submission, on the facts of this case, it was very much a substantial difference because that was the very issue that the jury was considering, whether the applicant was guilty of the crime of manslaughter or of murder.

KIRBY J:   Yes, well I think we have it there and we have read the Court of Criminal Appeal’s reasons.

MR STRATTON:   Thank you, your Honours.

KIRBY J:   Thank you.  The Court does not need the assistance of the respondent.

The applicant advanced two main points in support of this application for special leave to appeal from his conviction of murder.  The appeal comes from a divided decision of the New South Wales Court of Criminal Appeal. 

The first point concerns a departure by the learned trial judge from the language of the Crimes Act 1900 (NSW) section 23, in the instruction given to the jury on the legal requirements of provocation. By section 23(2)(b), that Act says that the test is whether the:

. . . conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self‑control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased –

The trial judge explained this statutory language by reference to conduct “that could be expected to have” caused the loss of self‑control. 

The importance of adhering closely to the statutory language was given emphasis by this Court in Heron v The Queen (2003) 197 ALR 81 at 83 and 99; see also Green v The Queen (1997) 191 CLR 334. However, in this case, both in oral and in written instructions given to the jury, the trial judge repeatedly used the correct statutory language. The variation used in elaboration did not, in our view, involve such an error as requires correction by this Court. Specifically, the additional phrase used is different from the language of probability “would” that was considered in Heron. 

No error is shown in the treatment of the first point by the Court of Criminal Appeal sufficient to warrant the intervention of this Court, although we would say again that departure from the statutory language is most undesirable.

The second point concerns the complaints about the directions given to the jury on the significance of consciousness of guilt of manslaughter, as distinct from murder.  The trial judge made it clear that the jury had to focus their attention on whether there was consciousness on the part of the applicant that he was guilty, not of something, but of the crime charged, namely murder. 

In the light of that direction, which was correct, there are insufficient prospects of success on this point to warrant a grant of special leave.  This was a strong prosecution case and the Court is not convinced that any miscarriage of justice has occurred to the applicant.  The application for special must therefore be refused.

AT 12.26 PM THE MATTER WAS CONCLUDED