Smith v The Queen

[2016] HCATrans 16

[2016] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A22 of 2015

B e t w e e n -

WAYNE DOUGLAS SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 FEBRUARY 2016, AT 9.52 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS J.S. DAVEY, for the applicant.  (instructed by Legal Services Commission)

MR A.P. KIMBER, SC:   May it please the Court, I appear with my learned friend, MS E.O. BROWN, for the respondent.  (instructed by Director of Public Prosecutions (SA))

FRENCH CJ:   Thank you.  I know that this related to the next matter, Mr Walker, but there are differences, I think. 

MR WALKER:   Yes.

FRENCH CJ:   Are both parties content to have them dealt with separately?

MR WALKER:   It is artificial for the circumstance that your Honour has just referred to not to be appreciated, obviously.  It is not just the next case.  Your Honours appreciate there is Miller ‑ ‑ ‑

FRENCH CJ:   Yes, indeed.

MR WALKER:   ‑ ‑ ‑ that I am actually going to start with a reference to, so I am certainly happy to argue the whole of our case and have it responded to if any response is called for without Presley being called on, but I am entirely in your Honour’s hands.

FRENCH CJ:   Yes, we will deal with them sequentially, I think.

MR WALKER:   Your Honours, I have referred to Miller – a case where on 13 November last there was a grant of special leave.  Apropos the matters which were plainly live in that application, could I take you in the present application book to page 365, paragraph 156.  This is the reasoning in the Full Court – to dispose of the matter, which incorporated reference to the evidence of intoxication, both generally and of Mr Smith, in particular, and, in particular, with reference to what is captured by the last four words of the reasons, namely “with the necessary intent”.

Before elaborating on that, could I ask your Honours to go back in the reasons, which of course dealt with a number of convicted persons, on pages 355, 356 to paragraphs 126 and 127 which is the corresponding part of the reasons disposing of Mr Miller’s appeal. 

As your Honours can see – though this is bordering on a facetious observation – that is somewhat lengthier than one finds in paragraph 156.  But, in substance, it adds very little over and above the bare conclusion expressed in 156 for Mr Smith.  It was that substantial absence of any reference to intoxication as it affected the critical question of intent – as I say, I will elaborate that a little in a moment.

FRENCH CJ:   There was a general direction as to intoxication.

MR WALKER:   Yes.

FRENCH CJ:   Related to states of mind, was there not?

MR WALKER:   Yes, is the short answer.  In particular, one will find, so far as concerns Mr Smith’s case, not only the, on my count, about half a dozen unexceptionable general references to intoxication.  There are also two quite specific references by direction to intoxication.  I do not need to take you to them, but pages 283 to 284 and 286 are passages which, with respect, explain the so‑called abandonment of an appeal on the topic of intoxication, which really means on the direction as to intoxication ‑ ‑ ‑

FRENCH CJ:   Yes.

MR WALKER:   ‑ ‑ ‑ which occurred below and is not sought to be revisited by us today.

FRENCH CJ:   In the case of your client, there was no blood alcohol concentration evidence, was there?

MR WALKER:   No, that is correct.

FRENCH CJ:   There was evidence of diazepam and some other drug and cannabis, I think ‑ ‑ ‑

MR WALKER:   Yes, there was.  However, may I take your Honours immediately to page 283?  There really is no doubt that far from this being a case, as our learned friends suggest in their written outline, where there was a significant difference in relation to alcohol intoxication between my client and Mr Miller, the difference to which the Chief Justice has referred is a difference wholly explicable by the very considerable difference in the timing after the events and the night of drinking between the test for Mr Miller and the test for Mr Smith and his Honour explains that there.

FRENCH CJ:   The question though for you, as I understand it, is the reasonableness of the verdict against the evidence that was available to the jury.

MR WALKER:   Quite so, but the evidence available to the jury – and it is convenient to see how the trial judge directed the jury about that very aspect of the evidence and you will see on page 283, picking up at about line 46 or so, that following the correct proposition that “no alcohol was detected by the blood test”, the jury is directed by the judge – now it is a matter for the jury how they take these matters of fact but there is no contest that this is what the record reveals – that the lapse of time would explain that and, as his Honour points out, the jury should bear in mind the evidence, which is really not contested, of consumption heavily of alcohol – in my client’s case whisky – all day.

Now, really this is not a case where it can be seen that there was ever an element in the prosecution case suggesting that one or more, including my client, of the accused persons was sober.  Rather, all the evidence, including evidence very appropriately called in aid by the Crown in its case, was of drinking together and drinking by usual measures heavily.

KIEFEL J:   There was evidence from witnesses in fact over the page at page 284, one witness that “he did not really seem drunk” to some – really drunk to some witnesses.

MR WALKER:   Yes, but that same witness said that, I think, about Mr Betts as well, so that no doubt these are all matters of relativity, and we are not talking about falling down drunk, which is part of the context of that evidence to which Justice Kiefel has referred.  They obviously were not falling down drunk because they moved; they did things on their feet.  So that, in our submission, there is little doubt that the jury had before them material which they had to consider in relation to intoxication and there is really no sensible prospect of my client being regarded as a person not drunk.

KIEFEL J:   It depends what that means though, does it not?

MR WALKER:   Exactly so.

KIEFEL J:   The jury, given those words, even if they were told there is a possibility he was drunk, the question would be what would that mean in a particular case.  It could mean that it might explain his aggression.

MR WALKER:   Yes.

KIEFEL J:   But it might – what are the jury left to speculate on the basis of this evidence about intention.

MR WALKER:   No, they are not left to speculate, they are left to make a decision of fact against the standard of beyond reasonable doubt calling in aid ‑ ‑ ‑

FRENCH CJ:   You would say they must have had a doubt?

MR WALKER:   I have to say that and I do.  That is the prism through which our special leave is put and it is the prism through which Mr Miller’s special leave was put and it is particularly focused on error in the Court of Appeal, in the Full Court, and the error being that you find no more in paragraph 356 for Mr Smith, that which was missing from paragraphs – at 156 I mean at page 365 – nothing more than was missing, of course, from paragraphs 126 and 127 in relation to Mr Miller. 

So that, so far as the treatment of the “unreasonable in light of the evidence” argument, that to which the Chief Justice has just referred, it was the same with respect to the perfunctoriness in the Full Court and, in particular, the omission to deal with that which was argued, namely, what the jury on the argument must have regarded, the evidence about intoxication, as giving rise to, namely, an ineradicable reasonable doubt about intention.  Can I elaborate on that point of intention?  It is not a simple concept in the issues that were raised in this case.

FRENCH CJ:   This is in the context of extended joint enterprise?

MR WALKER:   Exactly so, and also the possibility of what I will call alternatives.  We have here, of course, two victims and the way in which the charges were presented, the Crown case was argued, there already was introduced, as it were, a nuance in relation to specific or not specific intent concerning the attack on Mr – or the dealing with Mr King, as opposed to the dealing with the deceased, Mr Hall.  That is one thing. 

The other thing, of course, is in relation to either of the versions of joint criminal enterprise criminal liability, there is the need for the accused to be shown beyond reasonable doubt to have a state of mind in relation to a putative future intention – intent of another, one of his co‑participants, and the degree and level at which that putative future intent – when I say “future” I mean the intent that would accompany a future act which was within the reasonable awareness or contemplation of the person, would then determine, possibly, matters of acquittal, guilt of murder or guilt alternatively of only manslaughter. 

Now, those are matters which, having been argued and intoxication having been raised as going to what might be called a relatively complex and to a degree nuanced question of intention, there is an embedded question of another person’s intent within the primary question of my client’s state of mind.  That, in our submission, was something which with respect to the high possibility, high probability of intoxication of a considerable degree called for much more than the Court of Appeal did. 

That is the point, with respect, upon which Mr Miller can be seen, surely, to have obtained special leave and it is a point also fairly open to my client.  The Court of Appeal simply has not dealt with that matter at all.  It is for those reasons, in our submission, that the only differentiating factor is this difference in the evidence concerning intoxication.  It cannot possibly be seen as a difference that removes intoxication as a real issue to be considered by the jury. 

The trial judge, clearly, did not think so and directed them that they would have to consider evidence which could produce the conclusion that my client was intoxicated, leading to the jury consideration, as Justice Kiefel raises with me - what do they do with that evidence, together with all the other evidence when it comes to assessing the question of intent? 

The argument proposed by us below that they could not have eliminated the requisite reasonable doubt is one that has not been dealt with by the Court of Appeal.  It is for those reasons, in our submission, that there ought to be a grant of special leave in Mr Smith’s case as well.  I think I neglected to ask for an extension.

FRENCH CJ:   Is that extension opposed?

MR KIMBER:   Not opposed.

FRENCH CJ:   Do you have anything to say about the direction as to the lies?

MR WALKER:   No.

FRENCH CJ:   Yes, Mr Kimber.  We will not need to hear you, obviously, on the question of the direction as to lies.

MR KIMBER:   Thank you.  If the Court pleases, obviously, the respondent faces a difficulty because there are significant similarities in the treatment of the court below of Mr Miller’s unsafe ground with that of this applicant.  Can I take the Court to commence to the way that the court dealt with its conclusion with respect to this applicant, as Mr Walker has taken the Court to, appeal book 365.  This ground is dealt with, as Mr Walker has said, in 156 of the judgment. 

There are very significant similarities between what I understand to be the reason that the Court granted special leave to Miller, that is, the failure to make express reference to the intoxication of Smith was the primary basis put forward to argue in the court below that the jury were, in effect, obliged to acquit. 

All I can put to the Court is that there are significant factual differences between Mr Miller and Mr Smith that I will come to in a moment.  Also, I do not make any concession that the court was not cognisant of the intoxication of Mr Smith or it came to the conclusion that it did at the end of its judgment. 

Can I take the Court for that submission first back to application book 356 and the final sentence of paragraph 129, where the court referred to the fact that this applicant had abandoned his ground with respect to intoxication.  The ground with respect to intoxication is the ground that encompassed directions with respect to the impact of intoxication on the question of whether or not the applicant joined in a plan, if he was the member of a relevant plan and, if it was relevant to count 1, the issue of what he may have foreseen. 

Further, can I take the Court back further in the judgment to application book 348.  At 348, the court is dealing with the ground of appeal about intoxication with respect to Mr Presley, a ground that obviously enough was pursued in the court below, and in paragraph 93 on that page extracted part of the summing‑up, made express reference, not just to the direction about Presley’s intoxication, but also evidence and direction about intoxication of Smith. 

So I make no concession that the court was not cognisant in its judgment of the issue of intoxication for the applicant, Smith, and also that it was cognisant of the issue to which it went even though it did not later make express reference to that issue in considering the unsafe and unsatisfactory ground.

I also do not concede, despite the grant of special leave to Miller, that this appeal would enjoy adequate prospects of success.  Can I take the Court, within the judgment, to the summary of the case against Smith?  It is a summary that is not disputed, it was not disputed in the court below, and that summary is at application book – within my submissions – application book 384.  This is from within paragraph 129 of the judgment of the court below. 

There, the court summarised some of the undisputed facts and conclusions to be drawn from those facts.  When one looks at that summary, and the evidence of what Mr Smith did - that is, that he was armed with a shovel, he attended with others, he delivered blows to Mr Hall and he left at the same time as of the others and returned with the others to the house from which they had come - it is difficult to reconcile those facts, in my respectful submission, with an inability of the jury to conclude that this man was incapable of joining a plan and, if necessary, he was incapable of having the necessary foresight.

FRENCH CJ:   It is a question not of whether the jury can include the positive.  It is a question of whether the jury could go to a verdict without a doubt on that issue.

MR KIMBER:   Correct.  But these are the actions of the applicant, whatever his level of intoxication.  So whatever his intoxication he was capable of doing all of those things.  It is difficult to reconcile that capacity with an inability to join a plan with the others who were around him and with whom he travelled to the scene and an inability to form the necessary state of mind, given what he was doing.  Joining of a plan, the forming of the necessary intent, the necessary foresight are not things beyond the capacity of someone who is even grossly intoxicated.  The only other submissions I wish to make are to point out some of the evidentiary differences as to the intoxication of Miller and Mr Smith.

FRENCH CJ:   Just before you go, can your refresh my memory - what argument was put on behalf of Smith in the Full Court on the question of the effect of the evidence of intoxication upon the reasonableness of the verdict?

MR KIMBER:   The argument put in the court below was that his level of intoxication accompanied by the expert evidence that had been given by Dr Majumder in some respects, it was submitted, could be applied to Mr Smith notwithstanding great uncertainties as to his level of intoxication.

FRENCH CJ:   That is because of general aspects of the evidence of the expert as to intoxication and states of mind.

MR KIMBER:   Correct, because there was no evidence of the level of the alcohol intoxication, unlike with Miller, but that is not to say that the general evidence given by the expert, Dr Majumder, could not have some application to this applicant’s case.

FRENCH CJ:   Anyway, that argument was relied upon in the court below?

MR KIMBER:   Yes, and it was one of the primary foundations of the argument, I have to concede, for why it was submitted that the verdicts were unsafe.  There were others but it was certainly a plank of that argument.  The only other aspect of my outline I was going to take the Court to was that part that summarises the differences in the evidence of intoxication for Miller and the evidence of intoxication for this applicant.  That is summarised at application book 381 within paragraphs 7, 8 and 9. 

There were significant differences.  Evidence of the applicant’s intoxication was significantly more uncertain than it was for Miller.  Miller had the assistance of calculations of his blood alcohol level, as well as the level of the other drugs, from which more pointed evidence could be given then by the expert about the possible impacts.  Evidence about the possible intoxication of this applicant, far more general, far more uncertain and cannot be said to rise to the same heights as the evidence with respect to Miller.  That was evidence that was available to be considered by the jury along with all of the other evidence in the case.  If the Court pleases, they are my submissions.

FRENCH CJ:   Yes, thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, as to both the last point, that is differences between Miller and Smith in relation to evidence concerning intoxication, and as to the challenge concerning its effect on the reasonableness of a verdict, we make this observation.  Exactly the same propositions can be expressed in relation to Miller as in relation to Smith, namely that it was for the jury to decide whether or not on the proved state of affairs, as it might appear to the jury on the evidence, the intoxication was such as to leave a reasonable doubt as to one or other, or perhaps all, of the requisite intents that were required to be within the contemplation of the accused with respect to a joint criminal enterprise argument.

KIEFEL J:   But in relation to the evidence that the jury did have, unlike Miller who did have the specific blood alcohol level evidence which might have been attached then to the evidence of the expert, here the applicant’s evidence must have relied – the evidence about his state of sobriety, or lack of it, has to rely more upon what witnesses said about how he appeared.

MR WALKER:   Yes, that everyone had been drinking.  The Crown does not dispute that.

KIEFEL J:   But the point put against you by the respondent is that was at such a level of generality and the witnesses were not asked by defence counsel to be more specific about their perception of his level of drunkenness. 

MR WALKER:   With respect, your Honour, that is absolutely correct.

KIEFEL J:   That distinguishes this case from Miller’s.  That is, I think, the essential point put against you.

MR WALKER:   Yes and what we submit is this, even before a jury that would not be enough without attending, as the trial judge did in directions,

to what the evidence says about their conduct.  Everyone had been drinking and there was evidence that everyone was drunk.  Now, that is, of course, very general.  It may well be that the jury would feel in a position to distinguish in relation to the case of those who had blood tests and those for whom too much, such as Smith, for whom too much time had elapsed for the blood test to reveal anything.  But there is no sign of that either in the direction that the judge gave, the evidence drawn to attention, that is, there is no sign in perceiving any behavioural differences between those with blood tests and those without. 

That is really important because if there are no obvious behavioural differences then one of the possible matters for a jury to consider which may leave reasonable doubt ineradicable is that that which can be said about those with a blood test probably can be said and certainly cannot be eliminated for those without a blood test.  That is the first point. 

The second point, obviously enough is it is exactly true of Miller as well as of Smith what my learned friend says about their capacity to take part in the physical conduct about which there was evidence.  That is true.  But the point in relation to Miller, which, therefore, should also be available for Smith and as a matter of parity of treatment should attract special leave for Smith is that the necessary contemplation of another person’s intent and the particular degree and kind of that intent - specific, general, for example - has to be superadded to the evidence of physical conduct, it being a matter for the jury to consider that people can and do carry out physical activities while drunk, not least because they have not considered and do not have in mind the consequences that would be obvious to anybody who was not drunk. 

In other words, the jury’s knowledge of the world - they do not need an expert to talk about what drunkenness can do - would mean as the judge very fairly, with respect, directed that you can be doing something while drunk without the fact that you have done it carrying anything at all significant about your appreciation of consequences and, therefore, moving towards reasoning ultimately about awareness of another person’s possible intent.  It is for those reasons, in our submission, that there really is not the ground for distinction such as to call for no special leave in this case.  May it please the Court.

FRENCH CJ:   The Court will adjourn briefly to consider what course it should take.

AT 10.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 10:24 AM:

FRENCH CJ:   We are of the view that the application for special leave, so far as it relates to ground 2.1.1 in the draft notice of appeal, should be referred to an enlarged Court.  As counsel would be aware, the Miller matter is listed for hearing in March.  It may be that that is simply too tight to get submissions organised in relation to this matter, so the question of whether that listing can stand and if so, when, and, if not, when this matter and Miller should be heard, can be worked out administratively, along with an appropriate timetable.  That is the order of the Court.

AT 10:25 AM THE MATTER WAS CONCLUDED