Simpson v The Queen

[2001] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S180 of 2000

B e t w e e n -

ANTHONY LLOYD SIMPSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 JUNE 2001 AT 2.58 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If your Honours please, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Director for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Papayanni.

MR PAPAYANNI:   If the Court pleases, this is an application for special leave and in somewhat unusual circumstances.  The applicant pleaded guilty before his Honour Justice Studdert and ‑ ‑ ‑

GLEESON CJ:   As a result of which he was not put on trial for murder.

MR PAPAYANNI:   Well, I think the Crown accepted the plea of manslaughter.

GLEESON CJ:   Yes.

MR PAPAYANNI:   Then the matter was put before the Court of Criminal Appeal that on the facts as appeared that as to whether there was – the crime of manslaughter had been committed.  The Court of Criminal Appeal did not look into the law and decided it according to law, except to say that it was a dangerous act and in similar circumstances – and what is submitted here is that manslaughter usually does not get very much attention and the last really prominent decision was that of Wilson in 1984, which was in relation to an unlawful and dangerous act, and although in Wilson they referred to the fact of the criminal negligence, there is no real decision in relation to criminal negligence except the one in Victoria of Nydam which was referred to by his Honour.

The situation, of course, was that in Nydam they reviewed the law in relation to criminal negligence and his Honour accepted that and although in Nydam’s Case the question as to whether there was a subjective or objective test was decided in favour of the subjective test.

GLEESON CJ:   But whatever is the question, it was admitted by the plea.

MR PAPAYANNI:   Yes, that is correct.

GLEESON CJ:   If we are going to review the law on manslaughter, we would be better to do it in a case in which somebody pleas not guilty, would we not?

MR PAPAYANNI:   Yes.  Well, all I am asking here, your Honour, is the question as to the facts, whether they constitute the crime of manslaughter ‑ ‑ ‑

GLEESON CJ:   Whether they could have constituted the crime of manslaughter.

MR PAPAYANNI:   Yes.

GLEESON CJ:   Because if they could have constituted a crime of manslaughter, the plea of guilty admitted that they did.

MR PAPAYANNI:   Well, admitted the facts, but it did not admit the law in relation to it and his Honour did not refer to the law in relation to a trespasser and his Honour, in my submission, also made an error as to the act causing death.  In my submission, the act causing death in this case was the fact that the applicant forgot to turn off the power, so he said, but there was no evidence as to who, in effect, had turned on the power.

GLEESON CJ:   When you say, “so he said”, he said it to some police at one stage but by his plea of guilty he made some admissions.

MR PAPAYANNI:   Yes, but he did not make an admission there.  It is the same situation as a person who pleads guilty to receiving and when he goes before the court and he gives evidence in relation to that, and he has admitted by his guilty plea the facts, but he says that, “I didn’t know it was stolen”.

GLEESON CJ:   Mr Papayanni, can I clear up one aspect of the facts I just want to be sure about?  Was there any sign near this fence saying, “Danger” or “Warning”?

MR PAPAYANNI:   No, there were no signs.

GLEESON CJ:   Now, how was the fence going to keep people like – I call him “the victim” out except by behaving exactly the way it did behave?

MR PAPAYANNI:   Well, usually, as he said in his evidence – and there was no evidence to the contrary – that whenever he turned it on he was always there, so he could monitor it from the front.  Now, from the back – there was no possibility of him getting in from the back because, although from the fence there was also – from the back fence, not the other fence, from the back fence there was ‑ ‑ ‑

GLEESON CJ:   But if an intruder did not know that the fence was electrified, the fence would not operate as a deterrent to an intruder unless and until it had administered a shock.

MR PAPAYANNI:   Well, that is what he intended but not ‑ ‑ ‑

GLEESON CJ:   He intended to shock.

MR PAPAYANNI:   ‑ ‑ ‑ not a lethal shock.

GLEESON CJ:   Well, if he had intended a lethal shock, he would have been guilty of murder.

MR PAPAYANNI:   Well, when I say he did not intend it, that all he intended was a shock, but the situation really was that it was not dangerous in relation to death unless this freak accident occurred in the way that it did.  Now, he had the gap between, let us say, the live parts of the wire above the chicken wire and it was the pulling down – sorry, it is the other way around.  It was the pulling down of the chicken wire onto the live parts of the connection that caused the chicken wire to become live and then only because he had his feet on the ground, or his knees in this case, I think it was, and if he had shoes on he would not have been electrocuted.  So it was a freak accident.  It is the same thing ‑ ‑ ‑

GLEESON CJ:   Could I draw your attention to page 107, line 15.  He told the police he had the electrified fence to stop people from taking his plants.  Now, bearing in mind that there was no warning sign, so that people would not know that the fence was electrified, how was it capable of stopping people from taking his plants otherwise than by giving them an electric shock?

MR PAPAYANNI:   Well, yes, but he said the shock would not be sufficient to kill them.  Certainly it would have caused them some inconvenience but it would not have killed them.  That is the whole point about it, in my submission.  You see, in the first place, we say the act causing death was the turning on of the electricity.  There was no evidence as to who did that except he said that he may have done it or had forgotten to turn it off.  Now, his Honour did not address that point.

GLEESON CJ:   Because there was an admission by the plea of guilty.

MR PAPAYANNI:   Yes, but not as to the facts.  You see, when he gives evidence, it is the same sort of situation that I say in a plea of receiving, the judge should have turned around and said, “Well, I cannot accept your plea”, but his Honour did not address the duty of care.  Now, Hackshaw’s Case, which was also in about 1984, dealt with the question of trespasser.  Now, there is no duty owed to a trespasser, according to Hackshaw’s Case, in relation to premises.

GLEESON CJ:   There is a duty not to set out to kill them, is there not?

MR PAPAYANNI:   There is no duty owed to them other than what may be normally due under the ordinary test of negligence.  Now, in order to have the ordinary test of negligence occur in these circumstances, there has to be some circumstances which show that he knew that the person was on the premises or could suspect.  There was no evidence of that kind at all.

GLEESON CJ:   Even within the area of the law of negligence, is not the basic duty that you owe even to a trespasser not to set traps for them?

MR PAPAYANNI:   No, your Honour, unless you know they are going to be there, the same thing as those railway cases, you know that they are going to be there.  You can set a trap on your own premises if you want to, but if you know that a person is on there, then you owe them the ordinary duty of care.  In this case, he did not live on the premises.  He was not an occupier.  He was in a worse position than if he was the occupier because the occupier’s wife was not charged and she could have been charged in relation to this also, but also the question here in relation to omission to do something is vital, in my submission.

As Justice Deane pointed out in Heyman’s Case, the only time, other than the normal duty of father to his son and so on, those situations by relationship, the omission is only when a positive act is undertaken and there is an admission then, the same as in relation to a simple situation of driving a car, you are doing a positive action there and you omit to do something, but if you are driving a car and you fail to give way on the right and you never use your brakes, it does not matter whether your brakes are faulty or not.

Now, in this case, the parts that were live were inside the cage, if we can call it that, and not outside.  So there was no possibility of any person receiving any injury at all in the shock from the live parts which were inside the cage.  So here you have a situation ‑ ‑ ‑

CALLINAN J:   That is not right though, is it?  If you look at page 56 ‑ ‑ ‑

MR PAPAYANNI:   That is in relation to the back fence I think.

CALLINAN J:   Yes.

MR PAPAYANNI:   But this was not the back fence.

CALLINAN J:   No, but it does not matter.  There was a lethal prospect – that the back fence was also designed to keep out any trespassers.

MR PAPAYANNI:   Yes, but he was not injured by the back fence.

CALLINAN J:   No, I know that, but what was put in place at the back was all part of his scheme to deter people coming to get his marijuana plants, is that not right?

MR PAPAYANNI:   Well, it was part, but it was not the part that he was injured by.

CALLINAN J:   No, I understand that, but it was all part ‑ ‑ ‑

MR PAPAYANNI:   It was dangerous.  There is no doubt about that.  I mean, if it was live, the question was here, “What is the omission or what is the act that caused death?”, and that is the weak part of this because there is no real evidence that would convict him in relation to that accepting everything that he said.  The judge did not address the point in relation to the act causing death except to say that the setting up of this trap was the cause of death, which it was not.  It was indirectly, of course, the cause of death, if it was turned on.  So you have the situation here where you have a trespasser who is in a better position than a person who is lawfully on the premises.

GLEESON CJ:   Mr Papayanni, in the Court of Criminal Appeal an argument was put that the conviction should be quashed notwithstanding the plea of guilty.

MR PAPAYANNI:   That is correct.

GLEESON CJ:   If the conviction had been quashed, would it have been open to the Crown to charge him with murder?

MR PAPAYANNI:   No, I doubt it because the same act – the same act in which…..was death, so they would not have been able to charge him with murder because they had accepted the plea of manslaughter in any case.

GLEESON CJ:   What I was interested to know was what happened to the charge of murder when he pleaded guilty to manslaughter.

MR PAPAYANNI:   Well, the Crown accepted it in full discharge.  I think he was originally charged with murder.

GLEESON CJ:   I know that.  That was the point of my question.

MR PAPAYANNI:   Yes.  You see, the point about this was that the marijuana plants were not fruiting at the time and he said that when they were fruiting, at those times that he would switch on the electricity and he would stay there, but he had his own children in the place.  He did not want them to get electrocuted.  He did not want his wife to get electrocuted or even get a shock.  So the situation then in relation to that was he did not expect that there would – there was no chance of him knowing, or even suspecting, that anybody could come on the premises.

Now, originally he said that it was feral cats and because of the feral cats he had devised this chicken wire above and so on so they could not get in because they were destroying the marijuana plants.  They were making people sick when they smoked them.  It is for his wife that he did it.  Now, it is quite clear, in my submission, that his Honour was wrong at law in relation to the act causing death.  His Honour was wrong at law for not applying or deciding that there was a duty of care or that there was not a duty of care because there was no evidence that suggests that he could suspect that the trespasser was on there.

Now, if he did not suspect, there was no duty of care owed to the trespasser, as to the premises or at common law or under the ordinary rules of negligence.  So it was a question here of proximity, the question of occupier, and those two questions of act causing death and the duty of care.  In my submission, that here he was worse off in a criminal charge because in a civil charge, applying Hackshaw, he could not have had a verdict against him in relation to this.  Now, how can he possibly be worse off in relation to a criminal charge by saying that he has a duty of care and the act causing death was his fault, in other words, he was liable for that, when under the civil law he would not liable at all?

Now, the Court of Criminal Appeal – I have mentioned this – made no attempt to assist in relation to deciding the question of law, whether it was correct or not in relation to what was said in Hackshaw’s Case or whether it was to be extended or whether it was to be reduced in relation to it.  The last case really that even mentions criminal negligence is Wilson’s Case and, of course, that, as I say, was only obiter in the sense that it was an unlawful and dangerous act.  So what is needed really – and, of course, Wilson’s Case has only recently been accepted by the Court of Criminal Appeal because after that time, until recently, they had ignored the fact that Wilson’s Case had discarded Newbury’s Case and - battery manslaughter -and there had been cases in which – and it was only recently in Rees Case that the Court of Criminal Appeal recognised that the situation as to Wilson had to be applied in relation to manslaughter and that Newbury’s Case was not the law any more in New South Wales.

So, in my submission, the points of law that are important here are the question as to what is the law in relation to criminal negligence, and my submission is that it should be as applied in Hackshaw’s Case, and what is the law in relation to criminal negligence in relation to a trespasser, which is very important in relation to a number of things that have been said in relation to how to deal with trespassers and how you cannot deal with them and so on.  It is a matter that is of vital importance.  The other matter that is very important is the question of omissions in criminal law.  They are the only matters I wish to put.

GLEESON CJ:   Thank you, Mr Papayanni.  We do not need to hear you, Mr Blackmore.

The applicant, having been charged with murder, pleaded not guilty to murder but guilty of manslaughter.  The applicant was represented at first instance by senior counsel.  The Crown accepted the plea of guilty to manslaughter in full satisfaction and discharge of the indictment.  The applicant appealed to the Court of Criminal Appeal of New South Wales contending that, notwithstanding the plea of guilty, the conviction should be quashed.

The Court of Criminal Appeal pointed out that the applicant’s plea of guilty constituted an admission of all essential ingredients of the offence charged.  The applicant argued that in the circumstances of the case as disclosed on the sentencing proceedings the applicant could not have been guilty of the offence of manslaughter.  That argument was rejected by the Court of Criminal Appeal.

This Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 3.17 PM THE MATTER WAS CONCLUDED