Spathis v the Queen S150/2002 - [2002] HCATrans 566

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S150 of 2002

B e t w e e n -
ALEXIOS SPATHIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 10.47 AM

MR A.J. BELLANTO, QC: May it please the Court, I appear with MR W.P. LOWE, for the applicant. (instructed by Patricia White & Associates)

MR G.E. SMITH: If your Honours pleases, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Bellanto.

MR BELLANTO: Your Honour, firstly I seek to leave to proceed with the application in view of the late filing of the notice of appeal.

GLEESON CJ: How late was it?

MR BELLANTO: It was a number of months, your Honour.

GLEESON CJ: Is this opposed?

MR SMITH: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR BELLANTO: If the Court pleases. If your Honours pleases, three discrete issues are raised in the application; two concerning the public importance of these matters in the administration of criminal justice in Australia, the third matter involving the particular miscarriage of justice in this instant case.

The first issue can be put thus. Whether in murder trials in New South Wales, where the prosecution case is predicated on differential bases of liability, namely specific intent to kill or cause grievous bodily harm and felony murder, the indictment should be expressed in the alternative or the jury directed that they must be satisfied beyond reasonable doubt of the guilt on either, before the accused can be convicted.

GLEESON CJ: In order to succeed, will you need to persuade us to overrule the decision in Serratore?

MR BELLANTO: No, your Honour. Serratore is a different type of case to this. Serratore was a case that did not have felony murder as one of the bases for the Crown argument. So in that sense it is a different factual case from the case before the lower court and this Court.

GLEESON CJ: Now, what is so special about felony murder, except that manslaughter does not run?

MR BELLANTO: Felony murder involves a foundational crime and does not involved a specific intent to kill or cause grievous bodily harm. That raises a problem in this case because the jury may not be satisfied that there was the specific intent to cause grievous bodily harm or kill and, accordingly, there could not be a conviction on the first limb of the argument presented by the Crown in this case. The jury may be satisfied that either 11:1 or unanimously that it was a felony murder case. That does not require proof of specific intent, and that is why there is the distinction between Serratore and this particular case.

GUMMOW J: What do you say about Justice Carruthers’ statement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spathis v the Queen S150/2002

Details

AGLC: Spathis v the Queen S150/2002 [2002] HCATrans 566
Case: [2002] HCATrans 566
Decision Date: 5 November 2002

CaseChat Overview and Summary

Spathis was the applicant in proceedings before the High Court of Australia, appealing against a decision of the Supreme Court of Queensland. The dispute concerned the applicant's conviction for the offence of dangerous driving occasioning death.

The High Court was required to determine whether the trial judge had erred in law by failing to direct the jury adequately on the element of causation, specifically in relation to the interpretation of "occasioning" death. The central legal issue was whether the jury should have been instructed that the dangerous driving must have been the *sole* cause of death, or if it was sufficient that it was a *substantial or significant* cause.

The High Court held that the trial judge's direction was inadequate. Gleeson CJ, Gummow and Callinan JJ reasoned that the word "occasioning" in the offence requires proof that the dangerous driving was a cause of death, but not necessarily the sole cause. It was sufficient if the dangerous driving was a substantial or significant cause of death, even if other factors contributed. The jury should have been directed to consider whether the dangerous driving was a cause of death in this sense. The appeal was allowed, and the conviction was quashed.

Orders