Smith v The Queen

[2004] HCATrans 453

[2004] HCATrans 453

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  Nos P16 and P17 of 2004

B e t w e e n -

CLAYTON MICHAEL SMITH

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 11.25 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Laurie Levy & Associates)

MR R.E. COCK, QC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J:   Yes, Mr Grace.

KIRBY J:   This is only sentence, is it not?

MR GRACE:   No, your Honour.

KIRBY J:   It is conviction as well as sentence?

MR GRACE:   Yes.  Applications for extension of time are made both in respect of the conviction matter, No P17 of 2004, and the sentence matter, P16 of 2004.

McHUGH J:   So I have two matters, P16 and P17?

MR GRACE:   Yes.  P16 is the sentence matter; P17 is the conviction.

KIRBY J:   Do you develop a point that the indictment on the second occasion is incompatible with the acquittal on the first occasion?

MR GRACE:   Yes.

KIRBY J:   You say that the acquittal on the first count on the first trial is incompatible with the charge as it was laid on the second trial?  It is hard to advance that, though, is it not?

MR GRACE:   What I said earlier I should withdraw.  It is not strictly the new form of the charge.  What it is is the change in Crown theory from that of an altercation that developed between the two persons to that of a robbery that had gone wrong.  The submission is that ‑ ‑ ‑

KIRBY J:   But would you not have to move the court of trial to stay that prosecution as framed on the second occasion?

MR GRACE:   There was an objection to the ‑ ‑ ‑

KIRBY J:   I know there was an objection, but you did not seek to stay the prosecution. 

MR GRACE:   No.

KIRBY J:   And is that not the correct remedy if you contend that the prosecutor, who has the discretions by law, which we do not as a court supervise, has gone outside the proper exercise of those discretions?  Is not the proper remedy then to seek a stay of the trial at least on that footing?

MR GRACE:   The stay, if granted, would have affected the prosecution’s being bound to proceed in a manner contrary to that which they did proceed.  A stay would not have been effective to, in effect, stay the count on the indictment.  It may have prevented the prosecution running the robbery theory, because our submission is that the robbery theory is incompatible, if not incongruous, with the acquittal, with the result that the applicant did not get the benefit of the acquittal to which he was entitled.

KIRBY J:   But the original charge was in relation to wounding, was it not?

MR GRACE:   Yes.

KIRBY J:   Why is that incompatible with the way the Crown presented the case on the second occasion?

MR GRACE:   Because at all times the Crown ‑ ‑ ‑

KIRBY J:   There is no doubt that the accused was wounded.  I mean, he was left to virtually bleed to death.

MR GRACE:   The victim.

KIRBY J:   The victim, I am sorry, yes.  It was just a bit of luck on his part that his life was saved.

MR GRACE:   Yes, that is accepted.  The problem is this, that the unlawful wounding charge which was the subject of an acquittal was defended on the basis that the applicant was acting in self‑defence.  So that the Crown theory of the applicant being the aggressor was incompatible with that defence of self‑defence.  At best, for the Crown, the jury’s verdict of not guilty on the unlawful wounding charge was saying no more than that the Crown had not negatived the self‑defence.  Essential to a consideration of that unlawful wounding charge was the assertion by the applicant on oath that it was the victim who first produced the knife and it was the applicant’s attempts to rid the victim of the knife that gave rise to the first charge of unlawful wounding.

At the second trial, the learned trial judge refused permission for the defence during the course of the Crown case to elicit evidence of the fact of the acquittal and anything flowing from that, although the allegations as to what had happened in the unlawful wounding incident were put to the victim during the course of cross‑examination.  At the close of the Crown case, in the second trial, the judge had a change of heart and realised that he might be in error by refusing permission for the defence to at least elicit in evidence the fact of the acquittal, and such was allowed.  In fact, the applicant, who gave evidence, gave that evidence.

What is essential to an understanding of the complaint made by the applicant is an appreciation of once the Crown changed the way it ran the trial – that is, that the motive was robbery – how was the Crown going to fit into that narrative, into that theory, the fact that it had not negatived self‑defence in relation to an incident which occurred immediately prior ‑ and we are talking about a total time of incident of no more than probably two minutes – to the grievous bodily harm incident?  What is basically said is that when the jury came to consider what the course of events was and whether to adopt the Crown theory or to find support in the evidence, it was prevented, in effect, from considering how this unlawful wounding incident and whether the victim was the aggressor or whether the applicant was the aggressor – how it fitted in.

Can I take your Honours to page 8 of the application book.  That is in the course of the summing up in the second trial.  When talking about the unlawful wounding charge, at the top of the page, his Honour said:

There’s no point in telling juries things that don’t have any influence on anything, but with respect to this, because it’s part of a course of conduct over the evening, I must draw your attention to it in this way.  That verdict cannot be challenged in this trial.  It is not for you to accept a view of the facts which is inconsistent with the acquittal on the charge of unlawful wounding, that being the leg wound.

I suggest it is not a matter that you may need to worry about a great deal.  The real issues in this case are not the same as the unlawful wounding charge.  On that charge the Crown needed to prove a number of things . . . 

The verdict of acquittal means that the jury was not satisfied beyond reasonable doubt as to one or more of those elements.  We do not know which . . . In this case the issues are whether or not the cut to the right‑hand side of the neck is grievous bodily harm, and that is not going to be an issue as Ms Amsden rightly conceded; whether it was justified or excused by defence or accident, and again that is not going to be an issue before you, and whether at the time the accused had the intent to disable.

That is the issue that you’ve got to concentrate on, so whilst the events giving rise to the unlawful wounding charge are part of the story, the two are not the same thing, but as I say you cannot bring down a verdict which is inconsistent with the acquittal of the other jury on the other occasion.

You must consider the issues in this trial as distinct from any other matters . . . 

There was, as I said, the wounding to the leg, the other cut to the throat.  There are a number of other things that have happened that might or might not have been the subject of other trials or anything of that sort or other offences.  They are not matters of importance to you.  I suggest that you leave those to one side.

That is how the matter was left, but the unlawful wounding events and the fact that the Crown had not ‑ ‑ ‑

KIRBY J:   Was there an objection to that direction to the jury?

MR GRACE:   No, there was not.

KIRBY J:   We are always being asked to fix things up later.

MR GRACE:   Yes.  Could I take your Honours very briefly to the decision of this Court in Garrett (1978) 139 CLR 437. There his Honour Chief Justice Barwick at page 444, the third last line, said this:

It is apparent, in my opinion, that the trial judge, in an understandable endeavour to dissuade the jury from embarking on a consideration of the facts relating to the former charge of rape, did in substance tell the jury that the acquittal of the applicant was a neutral fact.  But it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant fact of which the applicant was entitled to full credit.  To have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called. 

Then, halfway down page 445, his Honour said: 

The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict.

That decision ‑ ‑ ‑

KIRBY J:   Is that addressed to the fact of the verdict and the charge to which the verdict speaks, or is it addressed to the way in which the prosecutor has presented the trial that led to that verdict?

MR GRACE:   The latter.

KIRBY J:   That is not clearly said there.

MR GRACE:   No, but could I just refer your Honours briefly to the headnote:

G. was charged with having committed rape upon the prosecutrix in July 1976.  He admitted sexual intercourse with the prosecutrix but said that she had consented.  Despite objection, evidence was admitted that the accused had been tried in January 1976 on a charge of having committed rape upon the prosecutrix in November 1975; that the prosecutrix had then denied having consented to sexual intercourse; and G. had been acquitted.  In his directions to the jury the judge said that the acquittal on the earlier charge was a neutral fact and no inference should be drawn from it for or against G. or the prosecutrix.

That was obviously going to credit.

In Storey’s Case, which is a subsequent decision of the High Court, Garrett was, in effect, referred to with approval.  In Carroll (2002) 213 CLR 635, most recently, the Chief Justice and Justice Hayne at paragraph 40 again referred to Garrett and similar cases.  At paragraph 40, their Honours said:

There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available.  Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.

McHUGH J:   What is the evidence in this case which, if accepted, would overturn or tend to overturn the verdict of acquittal?

MR GRACE:   The Crown theory that the ‑ ‑ ‑

McHUGH J:   No, I said what evidence? 

MR GRACE:   The evidence of the victim that it was the applicant at all times who had the knife in his hand, that it was the applicant who initially produced the knife and that the applicant was the aggressor at all times.  That evidence was given by the victim.  That evidence was used in support of the Crown theory of a robbery gone wrong, robbery being theft with violence.

KIRBY J:   But that is distinct from the actual wounding.

MR GRACE:   Yes.

KIRBY J:   I suppose you say the wounding is part of the elements of the robbery.

MR GRACE:   The Crown suggested it was.  There was no charge of robbery.

KIRBY J:   No, I realise that.

MR GRACE:   This is another issue that relates to sentence perhaps, but there was no charge of robbery.  It affected the credibility of the applicant to a substantial extent to be denied the benefit of that earlier acquittal, because the applicant in his sworn evidence in both trials said that it was the victim who was the aggressor.  He was trying to leave.  The unfortunate wound to the neck was caused by the applicant losing his cool, losing control of his actions, I think, in his words, “I cracked”, and in a frenzy inflicting the blow. 

That was the applicant’s defence and he relied upon that not to deny the fact that he inflicted grievous bodily harm, but to deny the intent that either he intended to inflict grievous bodily harm, which was the first trial defence, which the jury was hung on, or that he intended to disable the victim to effect an escape from the robbery that had gone wrong.  Your Honours, I note the time.  Could I move to the sentence issue ‑ ‑ ‑

KIRBY J:   Is that not a bit difficult to run, given that the aggregate sentence does not look to be excessive to the seriousness of the offence of which the applicant has been convicted and the objective circumstances that he left the man there to die, having taken his car?

MR GRACE:   The issue is whether the circumstance of aggravation, namely, robbery gone wrong, was proper to be taken into account when that ought to have given rise to a separate count.

McHUGH J:   But why?  One always looks at the surrounding circumstances of a crime.  If somebody is found guilty of stealing, you are entitled to ask, did the person steal the money to gamble with or to feed his starving wife and children?  Why can you not take into account in this case that the wounding with intent to disable was done because of the robbery?

MR GRACE:   The focus on the robbery, which I must stress was not proved – there was an allegation by the Crown that the victim’s wallet had been stolen.

KIRBY J:   Not proved or charged.  That is the point you make. 

MR GRACE:   Firstly, not charged, and certainly not proved.  In fact, the victim gave evidence that he could not say whether his wallet had been stolen or not.  That was where that was left, and then for the trial judge and then the Court of Appeal to jump to the conclusion that the motive was an intent to rob and that that aggravated, in effect, the crime was on a very imperfect factual foundation, in my submission.  It really trespasses into that area that this Court ‑ ‑ ‑

KIRBY J:   What did the sentencing judge say about any credit or exclusion of material that he had to take into account in proceeding to sentence, having regard to the acquittal on the first count of the indictment in the first trial?

MR GRACE:   He said nothing.

KIRBY J:   Was that urged upon him?

MR GRACE:   Yes.  This raises another issue of course, your Honours, because there is no reference, when you look at page 47, of the reasons for allowing the Crown appeal against sentence given by Justice Templeman in the court below.  There is no mention of the acquittal on the unlawful wounding charge, which, on the Crown case, had to have occurred in the middle of the first assailing by the applicant upon the victim and the last assailing which resulted in the major wound to the neck. 

So somewhere in the middle of all this, before the applicant made good his escape from the complainant’s house, we have another incident which is the subject of a claim by the applicant that the victim has been the assailant and the jury has not been satisfied beyond reasonable doubt that the victim was not the assailant, yet you have that conclusion in paragraphs 85 and 86 of Justice Templeman’s judgment, which completely ignores that event.  What it does, in effect, is unfairly treat the applicant by intruding into that area of sentencing which this Court in R v De Simoni (1981) 147 CLR 383 proscribed.

KIRBY J:   What do you say are the facts that emerge from the conviction of the count in the second trial that would have been the proper foundation for the sentence?

MR GRACE:   That during the course of the struggle, for whatever reason the struggle occurring, the applicant, in order to make good his escape from the house, flailed at the victim, causing the wound to the neck.

KIRBY J:   Then left him to bleed. 

MR GRACE:   Then left him bleeding.

KIRBY J:   But for chance, he would have died.

MR GRACE:   Yes.

KIRBY J:   That is a pretty aggravated circumstance.

MR GRACE:   That is, yes.

KIRBY J:   It certainly is.

MR GRACE:   Yes, that is not shrunk from, but where do you fit in the earlier factual scenario into the sentencing process?

KIRBY J:   Where does the sentencing judge deal with a submission that he was asked to take that into account in sentence?  It is at 17, is it not:

I must give proper effect to the jury’s verdict of not guilty.

MR GRACE:   Yes, at page 17, line 3. 

KIRBY J:   He says:

It is of course consistent with no more than the fact that the jury were not satisfied beyond reasonable doubt as to whether or not there was a good defence of self‑defence which was the defence mounted to that charge, but I do take that into account.

Why is that not correct?

MR GRACE:   I do not necessarily disagree with that comment, except for the weight that may have been ‑ ‑ ‑

KIRBY J:   So it is taken into account by the sentencing judge.  Was an element of the appeal related to an error in that respect?

MR GRACE:   It was a Crown appeal against sentence.

KIRBY J:   In the argument for the accused on that aspect of the sentence, was that argued before the Court of Criminal Appeal or not?

MR GRACE:   Yes, I believe so, your Honours.  At page 111, in the third paragraph on that page, counsel for the applicant said:

The other benefit that the respondent should have is that unless it is intended that the acquittal on the basis of the self‑defence to the charge of unlawful wounding does not resolve the issues and unless the Australian Criminal Trial Directions is not intended to apply to unlawful wounding, I would say that that disposes of the issue of who produced the knife and who instigated the attack.  It was always the position that the respondent was not the aggressor and that it was the complainant who was the aggressor and that is from the outset when he was interviewed by the police.

Those are the matters, your Honours. 

McHUGH J:   Yes, Mr Cock.

MR COCK:   Thank you, your Honours.  My friend’s argument departs to some extent from the questions formulated in the application for special leave to appeal.  Our position in respect of the developed argument in respect of the application for leave to appeal against conviction, where my friend referred your Honours to page 8 in the charge to the jury on the second trial – my friend sought to develop, as I understood the argument, a suggestion that it was inconsistent with what had been said by this Court in Garrett.  Really, the trial judge was not telling the jury to not provide to the accused the benefit of the acquittal.  Indeed, as your Honours have heard, it was said expressly at page 8, line 7:

It is not for you to accept a view of the facts which is inconsistent with the acquittal on the charge of unlawful wounding, that being the leg wound.

His Honour then explained to the jury various bases upon which the jury below could have not been satisfied as to that charge.

In our respectful submission, that does not disclose any error.  Moreover, in our submission, to put the charge on the retrial and formulate a motive which was consistent with the evidence did not lead to any injustice or any prejudice to the accused.  Indeed, there was an express request, as I recall it, by the trial judge of defence counsel to explain any prejudice, and none could be identified.  As your Honours have already identified also, no point about this was taken below when the charge was put to the jury, and it is our submission that no question of importance really is raised either by the application or by the argument this morning.

Do your Honours wish to hear from me in relation to the appeal against sentence?

KIRBY J:   I do.

MR COCK:   Thank you, your Honours.  That is all I wish to say.

McHUGH J:   No, no, Justice Kirby wants to hear from you on sentence.

MR COCK:   I am sorry.

KIRBY J:   There was a restructuring of the case, really, was there not, on the second – I know that the authority of this Court is that the Court does not interfere in the prosecutor’s decision of how the case will be presented and I will be foremost in protecting that principle, but the fact is that when it was re‑presented, a significantly different Crown case was presented, relating to the alleged robbery.  If that is the case, why is it not requisite that the sentencing judge should give full allowance to the fact that on the first trial the accused was acquitted of the charge of unlawful wounding?

MR COCK:   We would not join issue with that.  Obviously, the sentencing judge and the appeal court above him on the retrial was obliged to give full credit to the applicant for the acquittal on the first trial of wounding.  Of course, we did not present the case as a robbery, but as an attempted robbery.  The second trial was fought entirely upon the formulation upon which the Court of Criminal Appeal on the second trial increased the sentence.  So it was not a case of the Crown structuring its case on the retrial.  The retrial was fully fought on the basis that the Crown contended this was an attempted robbery, or certainly an unlawful grievous bodily harm with intent to form a robbery, and it was fought entirely upon that basis before the jury.  The conviction was recorded on that basis and we say that the Court of Criminal Appeal correctly increased the sentence on that basis.  We say there is nothing wrong with that.

McHUGH J:   The first acquittal really had very little to do with the way the case was conducted, did it not, at the second trial, because the accused accepted that he had inflicted the neck wound after he had overcome the complainant and he did not raise self‑defence in respect of count 2.  His

case was that he had no intention to cause grievous bodily harm.  That was his case.

MR COCK:   That is right.

KIRBY J:   I am not expressing this very well, but my sense of disquiet relates to the fact that, given a second go, the Crown presented a case which had somewhat more prejudicial material in it relating to the robbery.  I recall some cases that say – I think they might be on the principle of caution in allowing Crown appeals – that the Crown should not, as it were, be put into a better position at a second go to present the case in a better and different way.  Whether that is a principle of law or a convention of restraint on the part of the Crown I am not sure, but I just have a sense of disquiet that the Crown got a second go and then, as it were, presented the case in a way that I could understand the accused might feel was more prejudicial to him.

MR COCK:   Well, we understood that.  It was open very starkly and very directly on the second trial with the intent which we sought to pursue.  There were discussions with counsel about that and, as I have indicated and as the papers disclose, the applicant’s counsel was not able to demonstrate any prejudice.

KIRBY J:   Your point is that it was merely reframing the case to fit more comfortably into that part of the Code which applied more explicitly and directly to the facts of the case and that that is your entitlement as a prosecutor.  You assert that you exercise that entitlement and that is your right and the Court has said many times it will not disturb the election of the prosecutor in that respect.

MR COCK:   Yes, your Honour, that is our submission and the detail of that submission is set out in the written outline that is in the papers.  I do not need to review that, as I understand it.  If your Honours please, those are the bases upon which we say special leave in both applications should be refused.

McHUGH J:   Yes, Mr Grace.

MR GRACE:   Very briefly, your Honours, could I take you to page 34 of the application book.  In the course of Justice Templeman’s judgment in the court below, the opening address of the prosecutor, or parts of it, are extracted.  You will see at paragraph 27, fourth line, talking about the applicant:

“To the contrary he did everything to prevent anybody discovering what he had just done.  He took (the complainant’s) keys and it would appear also his wallet . . . ” –

That allegation of taking the wallet, on the facts presented by the Crown to the jury, could have amounted to nothing less than an armed robbery.  A knife is produced, there is a taking of an item of property with violence whilst armed with an offensive or a dangerous weapon.  That offence carries with it a life imprisonment term in Western Australia.  Without a circumstance of aggravation, it carries with it a 20 year term.  An attempted armed robbery carries with it a 14 year term. 

So what the Crown was promoting to the jury was that here, in effect, was an armed robbery, in the guise of a charge of inflicting grievous bodily harm with intent to detain, and when the appeal court came to consider the sentence, it, in effect, aggravated the crime by importing into it that aspect of the matter.  If the Court pleases. 

McHUGH J:   Thank you. 

In this matter, the Court is of opinion that both applications for special leave to appeal should be refused.  In the matter of P16 of 2004, the Court is of opinion that there has been no miscarriage of justice in the sentence that was ultimately imposed on the accused.  In the matter of P17 of 2004, the Court is of the view that an appeal would have insufficient prospects of success to warrant the grant of special leave to appeal. 

Accordingly, both applications are dismissed. 

AT 11.58 AM THE MATTERS WERE CONCLUDED