Stanton v The Queen

[2002] HCATrans 429

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P32 of 2001

B e t w e e n -

KENNETH FRANCIS STANTON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 11.33 AM

Copyright in the High Court of Australia

MS J.G. FORDHAM:   May it please the Court, I appear for the applicant. (instructed by Leonard Cohen & Co)

MR S.E. STONE:   May it please the Court, with, MR J. MACTAGGART, I represent the respondent Crown.  (instructed by the Director of Public Prosecutions for the State of Western Australia)

GLEESON CJ:   Yes, Ms Fordham.

MS FORDHAM:   Your Honours, this application raises a question of general importance in regard to most trials where alternative verdicts are available, namely, the question as to whether or not a direction as to the order of considering alternative verdicts is such a fetter on the jury’s deliberations as to lead to the result that the accused has not had a trial according to law.

This sort of error is quite easy to make.  It is a subtle error, and in light of the jury’s question in this particular case, this case particularly points up the potentially extreme consequences of such an error of law.

GLEESON CJ:   Where is the most convenient place to find the direction that was given or the answer that was given to the jury?

MS FORDHAM:   Your Honour, the most convenient place would be, if I may, page 22 of the appeal book at around about 50.  Your Honours will see that the jury asked ‑ and Your Honours will see this at the top of that same page – the jury returned after about four hours and asked:

If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter?  Do 12 people have to agree to move down to manslaughter?

This is in the context of a jury having been out for about four hours, and in the context of the jury having been told earlier, during the judge’s charge to the jury, that – and this appears at page 16 of the appeal book, at about 5:

you couldn’t get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed.

His Honour repeated that type of remark on two other occasions during the charge.  The jury then came back after approximately four hours with this question.

HAYNE J:   Now, is what his Honour said at 16 something that you say is right or wrong?  Was his Honour right to say to the jury they had to be unanimous before they could consider other alternative verdicts?

MS FORDHAM:   His Honour was wrong, your Honour, and in fact, your Honour, the Court of Criminal Appeal took that view.  They were unanimous on the question of whether or not his Honour was wrong.  The distinction lies between the order of delivery or the order of verdicts, and the order of being permitted to think about the verdict.  What his Honour told the jury at page 22 of the appeal book at 50 is:

You can’t come to consider the alternative verdicts . . . unless you are unanimously of the view that he is not guilty of wilful murder.

McHUGH J:   What is wrong with that?

MS FORDHAM:   The distinction, your Honour, is that they were told that they were not permitted to even think about the alternative.

McHUGH J:   What is wrong with that?  The Crown is entitled to have its verdict.  The first question the clerk of arraigns asks in a murder trial, “Have you agreed upon your verdict on the count of murder?”, or in Western Australia, I suppose, “on the count of wilful murder?”.  The jury has to return a verdict on that.

MS FORDHAM:   Yes, your Honour.

McHUGH J:   If they say they cannot agree on that, that is the end of the matter.

MS FORDHAM:   Precisely, your Honour.  That is the distinction between delivery of a verdict, whereas in this situation, we had a jury which was obviously divided – one must infer that from their question – and this jury was told that they were not to think about the alternative.  If one thinks about the various forms of unlawful killing, “intent” is an issue.  One cannot, for instance, only think about the intent in relation to wilful murder, only think about the intent in relation to manslaughter.  One has to consider the thing globally.  So each judge in the Court of Criminal Appeal ‑ ‑ ‑

McHUGH J:   What do you mean, “think about it globally”?  What does that mean?

MS FORDHAM:   Well, “intent” is not a concept which can be artificially divided in one’s mind.  “Intent” is something the jury is not going – if they are going to think, for instance, “Did he mean to kill her?”  They are also going to think, “Did he mean to do her harm?  What was it he intended to do?”  That is what I mean, your Honour, by “intent” being global, in a sense that it covers all the variants of unlawful killing and indeed the option of acquittal.  Although, it is fair to say this trial was run on the basis that the real choice was between manslaughter and wilful murder.  That, your Honour, is not what is complained of in this Court today.  What is complained of in this Court is that all three judges of the Court of Criminal Appeal, indeed agreed that there was an error of law in that ‑ ‑ ‑

McHUGH J:   At the moment, you have to persuade me that those three judges were right, because I do not see any error of law, at the moment, and nothing you have said to me, at the moment, has persuaded me to the contrary view.

MS FORDHAM:   Very well, your Honour.  If I can put it this way;  the plain meaning of the charge to the jury was that they should first consider, that is, think about, that is, discuss, rather than deliver a verdict ‑ they should first consider the question of wilful murder, whether or not this person had the required intent to be convicted of wilful murder.  It is clear from their question that they were divided.  As they say, some of them were on manslaughter, some of them were clearly on wilful murder.  The people who were on manslaughter – if we can imagine, for a moment, your Honours, that there is one person stuck on manslaughter, and believes the accused merely ‑ ‑ ‑

McHUGH J:   Why do you assume that?  The question is:

Do 12 people have to agree to move down to manslaughter?

We do not know what the jury was doing at that stage.

MS FORDHAM:   We know, your Honour, that the jury was in conflict because the question is prefaced ‑ ‑ ‑

McHUGH J:   Yes, on the question of wilful murder?

MS FORDHAM:   Yes, your Honour, and we do not know what the jury was thinking.  We do not know, save that, they were not in agreement.  If, your Honours, the jury was divided about, say, wilful murder, manslaughter, that is one thing that could have been occurring.  Then the position is that those who believed the accused to be guilty of manslaughter were told they had to be unanimous with the other jurors before they could move down to – before they could think about manslaughter.  That places unreasonable, unwarranted and wrong pressure on those jurors because they are not permitted then to consider the option of manslaughter until there is unanimity on the wilful murder count.

McHUGH J:   That is right.  What is the matter with that?  If they cannot agree on murder they cannot consider manslaughter, full stop.  I mean if an accused is charged with assault causing aggravated harm and with assault, the jury just cannot say, “Well, we cannot agree on the major charge, but we find him guilty of assault” and come in and return a verdict of assault.  The Crown is entitled to have its verdict on the first count.

MS FORDHAM:   Your Honour, the distinction is between a verdict and between the process of getting to the verdict.  The difficulty is this jury was told that they were not permitted to consider any alternative until the jury was unanimous.  If we have jurors who ‑ ‑ ‑

McHUGH J:   What does it mean in practice, in substance, that you can have an academic discussion about manslaughter?  The jury would all say, “Well, we are all agreed that he is guilty of manslaughter.  However, when we go in to return our verdicts, we cannot bring in a verdict of manslaughter because we are in disagreement about the first count.”  I mean there is nothing in this.  It is just all a matter of form, its gobbledygook.

MS FORDHAM:   Your Honour, in my submission, that illustrates the seductive nature of the error in that it is easy to make and profound in its application.  The difficulty is that if a juror, for instance, is inclined to think that somebody is guilty of manslaughter, lack the required intent for wilful murder but is guilty of manslaughter, then that juror has thereby been told by that direction that that juror may not even begin to consider that until that juror is in agreement as to verdict with all other jurors.  If we have some, or even 11, shall we say, going for wilful murder, that juror is there being told that he or she must not even think about manslaughter.  They have to be unanimous before that consideration is required.

HAYNE J:   Because they have to decide the issues joined at trial, and the first set of issues joined at trial, is the charge of wilful murder?

MS FORDHAM:   Certainly, they have to decide the issue, your Honour, but there should be no prescription as to their manner of deliberation nor the order of deliberation, and that was the complaint at appeal.  The complaint is pointed up by the nature of the question they asked, because it is clear that they felt, or certainly were told, in due course, that they must be unanimous as to the first verdict to be returned.  Yes, logically, your Honour, the verdict to be returned first is guilty or not guilty of wilful murder, but that is not the manner in which they ought to be told to think.  They ought to be told that they are at liberty.  They might be given suggestions ‑ ‑ ‑

McHUGH J:   But for what purpose?  They are at liberty for what purpose – have an academic discussion?

MS FORDHAM:   Jurors, with respect, your Honour, ought to be at liberty to consider their verdict in any manner that is useful to them.  The difficulty is they have been prescribed a manner and that manner which they were prescribed is a manner which has tended to force jurors who were in the minority towards the majority.  They are told they must be unanimous, and they are not permitted to consider whatever it was they were tending towards until the unanimous.  So if we have someone – as I said, your Honour – in fact, I am repeating myself, so perhaps I will not ‑ ‑ ‑

HAYNE J:   But your underlying concern is that a juror in the course of this process may be overborne?  That is what is underpinning this argument, is not it?

MS FORDHAM:   May be overborne and indeed by the learned trial judge’s direction was in fact subjected to pressure by the judge.

HAYNE J:   But the inverse is that if they are told, “Oh, well, talk about manslaughter, even if you are not agreed about wilful murder” is that that is then taken as an invitation to compromise.  Now, unless you attend to the issues that were joined at trial and require the jury to attend to those issues, how else is the judge to act?

MS FORDHAM:   The judge could have said to them, your Honour, “You are at liberty to consider the issues at trial and the elements of each offence in any way that is of assistance to you.  I will not prescribe to you that you must come to unanimous agreement before you can consider the issues relating to manslaughter.  When you come to deliver your verdicts, however, you will be asked in a logical order, what are your verdicts.”  So the difficulty is with the jury being asked to consider in a particular way or told, I should say ‑ ‑ ‑

McHUGH J:   But it is not.  You see, your submissions are not really addressing even the question, because the question was not directed at those who might be in favour of “not guilty of wilful murder”.  It was directed to those who thought he was guilty of wilful murder?

MS FORDHAM:   That is right, your Honour, but what I say holds regardless of what the question is or regardless of who was travelling which way.  The problem is and the complaint was at appeal that the jury was told that they must not consider any alternative, and “consider” is the operative word, your Honour, not “you must not give”.

McHUGH J:   The question was:

do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter?

And the judge said, “No.”

MS FORDHAM:   I am not sure, your Honour, with respect to his Honour the trial judge, that he said, “No.”  He in fact directed them as to the law.  Whether he was directly answering their question might be another matter.  He said, “You cannot consider the alternatives unless you are unanimous on wilful murder.”  If we have a number of jurors on manslaughter, they are going to be forced up, if you like, up the scale towards wilful murder.  If so, we have a majority looking for wilful murder.  Those on manslaughter are told, “You cannot consider the alternative you are looking for”, and the distinction is between “considering” and “delivering” the verdict.

The submissions, I agree, your Honour, were not directed towards this point.  I have commenced at the point of accepting that the decision of the Court of Criminal Appeal was correct in this instance, and submitting to your Honours that the matter goes to the root of the trial.  Now, I am aware of the time limitations here, your Honours, and if indeed by arguing this point I do not get to the bottom of my summary of argument, I would rely upon that, and I would like to say one thing now, if I may ‑ ‑ ‑

GLEESON CJ:   Can I ask you one thing about the manner in which the case was decided against you by the majority in the Court of Criminal Appeal?  Was any consideration given or is any consideration now given in your argument to the decision of this Court in Gilbert v The Queen?

MS FORDHAM:   I have not argued that, your Honour, no.  I am not sure that I am in a position to do so.  The Crown ‑ ‑ ‑

GLEESON CJ:   I am referring to Gilbert v The Queen (2000) 201 CLR 414.

MS FORDHAM:   I do not have Gilbert with me and it is not referred to, so I am afraid that I am a loss as to what is on page 414, your Honour.

GLEESON CJ:   That is the page at which the report begins but you need not – I was simply questioning the consistency of the decision of the majority in the Supreme Court of Western Australia in this case with the decision of the majority of this Court in Gilbert, but that is not a point that you wish to argue?

MS FORDHAM:   It is not, your Honour.  No, it is not a point I have addressed and therefore I am not in a position to argue it.  I wish though, your Honours, to make one point about the Crown’s argument, and that is that – in fact it is probably best if I start with the basis upon which the majority in the Court of Criminal Appeal found against the applicant, and that is essentially that the majority applied the proviso.  Having said that, the majority…..Justice Murray at page 36 of the appeal book at 55, Justice Murray held the directions to be an error and commented that the directions tended to reverse the onus of proof.  I would agree with his Honour, with respect, there and put that to your Honours.  Having said that though, his Honour applied the proviso on the basis of his assumptions as to what must have happened in the jury room after the direction.  He says that the jury – and this appears at page 41 at 50:

the jury . . . in accordance with the evidence and correct directions of law, found themselves ultimately to be unanimously satisfied.

He went on to say:

Those who were not formerly of that view when they returned to the court . . . changed their minds or resolved their doubts in the course of the continuing debate

An alternative, of course, is that they changed their minds as a consequence of the pressure placed upon them by the remarks or the directions of the learned trial judge, coming as they did, at a crucial point of the trial, where an answer to such a question must have had very considerable significance.  I have referred to a number of authorities in my outline of argument including the two Canadian cases with which I have supplied your Honours which point to the special significance of those sorts of answers to jury questions, or indeed, in the Canadian cases, exhortations at what we would call perhaps a “black point” in the trial where the jury has been out for some time.

Now, that was Justice Murray’s reasoning.  He did not say that a conviction was inevitable, and Chief Justice Malcolm gave no reason for the proviso, other than he agreed with Justice Murray and said nothing more.  That appears at page 35 point 10 of the application book.  The Crown argues, as I understand the Crown’s argument at point 3, that given the issue in this particular trial was whether an intent to kill existed or not - and that is correct.  I agree with the Crown that that was the essential issue in this particular trial…..factual situation as it was.  The Crown says there was no miscarriage of justice by the trial judge telling the jury they should approach the task from the question of whether or not they were unanimous on wilful murder before they could consider the rest.

Now, if the Crown means by this that a verdict of not guilty of wilful murder means the jury has found the Crown failed to prove intent and that that is the process by which you come to a verdict of manslaughter, so there

is no miscarriage, the problem is the jury has just been told they must not consider whether the Crown has failed to prove intent, as they have been told they must not consider manslaughter.  So the process leads them inexorably towards a verdict of guilty of wilful murder.  Your Honours, I believe my time is up.

GLEESON CJ:   Thank you, Ms Fordham.  Yes, Mr Stone.

MR STONE:   If your Honours please, the Crown submit that the actual question is simply whether the majority of the Court of Criminal Appeal erred in applying the proviso in holding that the trial judge’s directions, which were correct in terms of elements of offence and the onus, whether in those circumstances that the jury have therefore ‑ ‑ ‑

GLEESON CJ:   All right.  Well, now, if that is the question, how do you reconcile the decision of the majority with the decision of this Court in the case of Gilbert?

MR STONE:   Your Honour, I am not familiar with that particular case, I must confess.

HAYNE J:   It seems to me to be dead against you.  If you are into proviso territory Gilbert is against you.

McHUGH J:  Gilbert was a case where the jury convicted the accused of murder.  Manslaughter was not left to the jury but this Court, over my dissent, held it was a misdirection.  Notwithstanding the jury being satisfied of all the elements of the charge of murder, the majority held that nevertheless the accused had been deprived of an opportunity of getting a verdict of manslaughter.

MR STONE:   The Crown would say that in the circumstances of this case – if one confines it to the circumstances here – where there is a contest simply in relation to the issue of intent - and at the end of the day the jury have to resolve that issue - the question becomes whether there has been a fair trial rather than being deprived of the opportunity of a verdict on manslaughter.  The Crown would say where the direction is correct on elements of the offence, the onus of proof, where the jury’s task ultimately requires them to consider the intent issue, given that they must necessarily in the circumstances of this case have approached the case from the point of view of criminal responsibility, which takes them then into the question of whether there has been an unlawful killing.  The next issue for them to resolve is the intent issue, whether it be an intent to kill or an intent to cause grievous bodily harm.

In all those respects, the learned trial judge’s directions were correct and no criticism is made of him in that respect.  The Crown’s submission is ultimately that but for the procedural error here ‑ ‑ ‑

HAYNE J:   You say there was one, do you?

MR STONE:   Yes, on the face of the authorities that the majority have relied upon in the Court of Criminal Appeal.  The Crown submits that at the end of the day the jury were required to approach the task from the point of view of intent.  With appropriate and adequate directions having been given to them, it cannot be said that there has been at the end of the day a situation where the accused has been deprived of a fair trial in those circumstances.

If your Honours – as it seems to be the case – have ruled in the case of Gilbert, it seems to be my understanding, therefore, that what your Honours are saying is that there is, I suppose, a fundamental flaw ‑ ‑ ‑

GLEESON CJ:   No.  If neither counsel have looked at Gilbert we had better not enter into any discussion about it.

MR STONE:   Yes.  Your Honours, in the outline of submissions – and I will rely upon that – the Crown has set out the facts the jury were required to find, that it was a strong Crown case, as I mentioned to your Honours a moment ago.  The contest at the end of the day was over the question of intent.

HAYNE J:   Can I just understand something about the course of proceedings in the Court of Criminal Appeal.  Did the respondent in the Court of Criminal Appeal accept that there was a misdirection in answer to the question asked by the jury?

MR STONE:   No, the Crown did not make that concession, and the Crown relied upon the proviso, as I understand it, in the Court of Criminal Appeal.  I am not sure that I can advance this case any further given what I have heard your Honours say in relation to this.

GLEESON CJ:   All right, thank you, Mr Stone.  Yes, Ms Fordham.

MS FORDHAM:   Your Honours, it seems the Crown accepts that the direction was in error but says on this particular occasion there was no miscarriage of justice.  The applicant says that such a misdirection must always go to the root of the trial.  On this particular occasion, the difficulty is that – certainly the trial was about intent.  The problem is the jury has been told that they must not consider whether the Crown has failed to prove intent because they have just been told they must not consider

manslaughter.  So that process leads them towards a verdict of guilty of wilful murder.

The problem was that they were clearly not unanimous on intent and wanted to know what to do next.  They were told they had to become unanimous and that they were not to even consider manslaughter.  That is, not to consider whether there was no intention to kill until they were all agreed on the question of wilful murder.  Such a direction, if one translates it that way, is at the very least internally contradictory and confusing, and at the worst, resulted in instructions which had to result in a conviction of wilful murder, depending upon how it was interpreted by the jury.

If they were told, “You must not think about whether the accused lacked the intent to kill”, which is what they are being told by being told they must not think about manslaughter, then they can only have been thinking about whether he had the intent to kill and they have been told they must be unanimous on that before they proceed any further.

So the applicant says that such an erroneous misdirection must go to the very heart of the trial and that the then accused did not receive a trial according to law.  As your Honours well know, the categories are not closed and the applicant says to your Honours that this is a matter of general importance in all cases relating to alternative verdicts, and that the time is ripe for this Court to provide some guidance in that regard.  Thank you, your Honours.

GLEESON CJ:   Thank you, Ms Fordham.  We will adjourn for a short time to consider the course we will take in this matter.

AT 12.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.05 PM:

GLEESON CJ:   In this matter, there will be a grant of special leave to appeal.  Before we leave the matter, could I make two observations.  The first is that we would expect that between now and the hearing of the appeal, counsel would give consideration to the effect of the decision of this Court in Gilbert v The Queen (2000) 201 CLR 414.

The second observation I would make is that it should not be assumed that the Court would accept the concession apparently made on behalf of the Crown that in the course of this application that there was error on the part of the trial judge.

AT 12.06 PM THE MATTER WAS CONCLUDED