Stevens v The Queen

[2005] HCATrans 442

[2005] HCATrans 442

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B20 of 2005

B e t w e e n -

LAURIE STEVENS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 22 JUNE 2005, AT 10.02 AM

(Continued from 21/6/05)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, to conclude the remarks I was making in relation to the question raised by the Chief Justice, there are of course, as your Honours appreciate from the authorities cited in the party’s written submissions here and in the authorities to be found discussed in those decisions, for example, in Kaporonovski, there has been a relatively long history of consideration of provisions like section 23 from various different aspects of the difficulties thrown up in the context of particular cases.

There are differences around the country.  Western Australia is effectively the same.  Tasmania, interestingly, on a matter germane to the present case, seems to have been assimilated in the authorities, notwithstanding that the word “chance” rather than “accident” is used in the Tasmanian equivalent:  see Vallance’s Case (1961) 108 CLR 56. A particular passage which has been much cited is that from Chief Justice Dixon at page 61. You will see there the extract from subsection 13(1) of the Tasmanian Code, just after halfway down the page:

“nor . . . for an event which occurs by chance.”  I think that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct:  they must too be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct. 

That phrase has not been carried through in terms but one can see that it has a family resemblance to what Sir Harry Gibbs referred to in Kaporonovski.  At the foot of that page of Vallance there is conveniently found also a much quoted passage which is the reason why, in our submission, this present case is simply not an occasion to explicate, as it were, comprehensively, the relation between the two limbs, in section 23(1), let alone to provide what might be regarded as a categorical or definitive, that is true for all cases, gloss for summings-up in relation to accident.  I refer to where, about an inch from the bottom, Sir Owen says:

Indeed I think that it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s 13 can be worked out judicially -

and goes on to make what might be regarded as a somewhat ironic comment in relation to this being a Code.  Nonetheless, in our submission, because this is a Code, judicial glosses should, if anything all the more, draw back from attempted comprehensive formulations. 

In Kaporonovski itself, (1973) 133 CLR 209, to which I made reference yesterday, there is, as your Honours appreciate, the passage at 230, which I was unable to recall yesterday, which I had in mind when talking about the possible overlap. At page 230, in a discussion about Timbu Kolian with its extraordinary facts, Sir Harry says, about halfway down:

Although it may be that in an exceptional case the applications of the two rules may not be mutually exclusive, that is not true of circumstances such as those under consideration in Timbu Kolian ‑

an example, in our submission, of judicially and, with great respect, appropriately drawing back from seeking to explicate in the abstract and true for all future cases the relation of those two.  It may be ‑ ‑ ‑

CALLINAN J:   There must be lots of cases where there is an overlap or an overlap is possible.

MR WALKER:   Yes.  Your Honour’s comment also calls to mind what immediately preceded that passage I have just quoted from, about one-third of the way down that page:

Although of course one set of facts may call for a consideration of both rules and, as Timbu Kolian v The Queen shows, those called upon to decide the question may agree that s 23 applies while differing as to which rule is applicable, nevertheless -

et cetera.

CALLINAN J:   The jury might be invited, in an appropriate case, to consider the possibility of the case falling under either of the ‑ ‑ ‑

MR WALKER:   Yes.  That is, in our submission, to highlight, as we put in our written submissions, the importance in this case, rendering it a defect in the trial, causing a miscarriage requiring a retrial, that although, as members of the majority in the Court of Appeal ventured, it may have been the first limb of section 23 – your Honours will recall Justice Davies mentions both, Justice Chesterman agrees but concentrates only on the first, the learned President referred to the second.

GLEESON CJ:   But you could hardly invite them to consider both limbs of section 23 without explaining to them what the second one meant.

MR WALKER:   Exactly.  As to what it meant, page 231 in Kaporonovski, in the course of putting to one side the second limb in that case, Justice Gibbs says:

It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person -

As it happens, Vallance, the Tasmanian chance case, is the first in those which are cited.  That, in our submission, provides the best, that is, the authoritative guide at present as to what, depending upon the forensic circumstances applying at the time of the summing‑up, will be the starting point and probably the end point of any gloss on the word “accident”.

It may be that in certain cases, because of the way in which the case has been presented, no gloss will be necessary about the word “accident” at all and it may be, as in this case, that the use of the word “accident” in the aftermath evidence to which reference has already been made, might indicate, depending upon other circumstances, that this is a case where not much gloss would be necessary.

Indeed, the suggestion that Justice Kirby asked me to consider, namely, that which was ventured during argument on the special leave application by Justice Callinan, is one which refers the jury to the fact that an English word, an ordinary if difficult English word, “accident”, is adopted as a label in law and that under that label, under that rubric if one likes, there ought to be a consideration of the facts by the jury specifically because it is a specific provision of the law.

In our submission, unless and until a case arose which provided, on its facts, a test, that is, some stress or pressure upon what Sir Harry Gibbs described as the settled approach to the accident direction, there ought not to be any material departure from it if any gloss be necessary at all.  The one direction in relation to accident, of course that must be given, is that which comes from Mullin’s Case, namely, that the onus is on the prosecution to exclude it and if accident is not put then, of course, the accused has not got the benefit of that very important onus.

KIRBY J:   Would you help me in relation to the facts concerning the so‑called defective gun.  Did the evidence reveal whether the appellant was aware of this characteristic of the gun?

MR WALKER:   While there is no evidence that he was aware, I think that is a bit different from saying that there was positive evidence that he was not aware, but certainly there is no case of a kind which would inform a section 289 consideration, that is of doing anything in the vicinity of or involving contact with a gun he knew to be in a defective state so this was a case where, in terms of accident, the defective state of the gun discovered afterwards, as an explanation of its discharge, cannot be sheeted home as part of the knowledge of the accused. 

KIRBY J:   You have disclaimed, and did at trial, manslaughter.  You were given special leave which did not extend to that issue but in the argument yesterday a question arose as to whether a trial judge could give proper directions on section 23 without turning his or her attention to that question so that the jury would be properly instructed on the law.  In other words, does the instruction on the second part of 23(1) raise the necessity to enter the dialogue about manslaughter?

MR WALKER:   It unquestionably renders it necessary to consider what the President called the qualification of section 23.  As I put yesterday, the opening words of section 23 command that.  Section 23 operates subject to the provisions of the Code which happen to include, importantly, section 289 which would have the effect, of course, as the Chief Justice pointed out yesterday and, as I hope the transcript records, I completely accepted.  That means there has to be consideration of the possibility of manslaughter.  A consideration of the possibility of manslaughter, of course, is a world away from being able to say at this stage that there must be a manslaughter direction.  Your Honours heard my argument yesterday – I do not need, I think, to elaborate it further – that on the evidence, the position of the accused would be that the essential premise of section 289 applying, being in charge of or controlling the weapon, would exclude that route to manslaughter. 

However, as I also put yesterday, this is not a matter upon which the accused, by any species of representation in court, be it waiver or otherwise, governs the outcome.  The judge has an independent duty, regardless of the position from the Bar table, of considering whether there should be something put which is a lesser charge – it would be manslaughter – to the murder that the parties were saying was the only issue in the case.  So we accept that if there were a retrial in this case, the question of manslaughter cannot be closed by any aspect of this Court’s decision.  The position we took, and we take, nonetheless, remains clear but that is a position we will take rather than an outcome that we can secure.

KIRBY J:   Did you give thought overnight to that direction in the form that Justice Callinan proposed at page 14 of the special leave transcript?

MR WALKER:   I did.  The form of words that I was giving thought to, that I referred to earlier this morning was, “Ladies and Gentlemen, another way of viewing this case is as a case of accident.  True it is that it may be an extraordinary emergency in which the applicant acted but there is another label that could perhaps be put upon the conduct”, and then his Honour would have told them in express terms that he was not liable for an event which occurs by accident, and then there is the reference to “label”, the law thinking it a label.

My remarks earlier this morning were directed to that, namely, that it may be, that little more than that plus the Mullin onus requirement, of course ‑ ‑ ‑

HEYDON J:   Plus the bottom of page 231 of Kaporonovski v The Queen.

MR WALKER:   Yes.  Perhaps I should finish what I was saying earlier to Justice Kirby.  It may be that this is a case – one might say this is the case, because I cannot think of a precedent – where the way things fell out, little more than what Justice Kirby has drawn to attention will be necessary but our submission remains, what I put five minutes ago, that page 231 in Kaporonovski remains the only safe starting point and probably finishing point for consideration of any gloss on the word “accident”.

GLEESON CJ:   The sting is in that word “little” in your proposition, when you say “little more is necessary”.  If we allow this appeal then, as we keep admonishing Courts of Criminal Appeal, we are supposed to give guidance to a trial judge at a new trial as to what is an appropriate direction.  Our responsibility would include being more precise about what that word “little” means in the expression “little more”, because a possible point of view, reinforced by Sir Owen Dixon’s observation that this is a notoriously difficult provision, is that the meaning of the word “accident” is not self‑evident.

MR WALKER:   Yes, by which, your Honour, with respect, means the correct or appropriate meaning because if one of those ordinary English words that very few speakers or listeners to English have any doubt about what they intend to mean or what they think they are understanding when it is uttered, but that there is such a broad possibility and that there is such controversy about the limits, it is common experience of language outside the law, not only in this area of the law, for people to be hotly in dispute about whether something was an accident or not.  In ordinary life, as in crime ‑ ‑ ‑

GLEESON CJ:   Exactly.  That is why there has been litigation throughout the world about the meaning of the word “accident” in conventions relating to damages against airlines.

MR WALKER:   In what might be called bread and butter insurance indemnity disputes have centred on that word for, I was about to say decades, but it is well over ten decades.  We do not dispute that the word is one that the courts have said will require a gloss.  We leave open, with respect, by reason of the fact that summings-up have to be crafted according to the exigencies and requisites of a particular case, not just the general law in the abstract, the possibility that in some case it may be that the way in which the evidence has fallen out, the way in which the arguments have been put, will need little more than the word and the “little extra” would certainly be the onus requirement, namely, that the Crown must exclude it beyond reasonable doubt.

In this case, however, and in deference to the Chief Justice’s remark which we respectfully accept as appropriate in relation to guidance for the court below, we do repeat that it is the foot of page 231 in Kaporonovski which we submit would be the appropriate direction as to what it means for there to be an accident and that, added to that, there must of course be the clear direction on onus.

The one other matter which must not be confined to the question of accident but would embrace both the question of accident and the question of paragraph 302(1)(a) intention for murder would be what I will call the sequencing or logical progression which one sees considered by Justice Gaudron in Murray and by Justices Gummow and Hayne in Murray, namely, that you start by requiring the exclusion beyond reasonable doubt of the section 23 matter before you then move, having got to unlawful killing, to the question of intention which would elevate it from manslaughter to murder.

GLEESON CJ:  Mr Walker, I realise this is over on the margin of your argument, but we may have to deal with it.  I would just like to understand, a little better than I do at the moment, the relationship between section 23(1) and manslaughter.  That may involve section 289 also.  You point to the opening words of qualification in section 23 but does the Code, as it were, independently of section 23, treat unlawful homicide as manslaughter in a case where there was no intent to kill or cause grievous bodily harm but there was what, for want of a better phrase, I will call gross negligence.

MR WALKER:   The answer comes from a process of eliminating the possible application of the five paragraphs of subsection 302(1).  That is because manslaughter is defined by reference to it being unlawful killing, not murder, so that one goes to those paragraphs and, in particular, a case that your Honour has posited would require close attention by both the judge summing up and the jury to paragraph (b).  In many cases it might, as a matter of English, fall to be described as “gross negligence” depending upon what the purpose being aimed at was would give rise to 302(1)(b).

GLEESON CJ:   Let me give you an example of what might be described in ordinary English as an accident.  Administration of drugs, heroin, for example, in such a quantity as unintentionally causes the death of the person to whom the heroin is administered.

MR WALKER:   It would be an unlawful purpose within the meaning of (b).

GLEESON CJ:   Exactly, and it would also be an accident within the meaning of 23(1)(b), would it not? 

MR WALKER:   No.

GLEESON CJ:   I can understand the person who administered, unintentionally, an overdose of heroin, saying as a matter of ordinary English, “I killed him by accident”.

MR WALKER:   Yes.  When your Honour says “unintentionally” by an overdose, we have the administration of a drug which, in ordinary experience, ordinary, reasonable people understand is capable of having lethal consequences.  Your Honour appreciates there is also paragraph (d) in 302(1) which would link back to the offence of participating in the administration and possession of, and administration of an illegal drugs.

GLEESON CJ:   The problem I am having at the moment with section 23 and manslaughter, which is marginal to your argument as you have put it, is in relating the provisions of section 23(1) that say a person is not criminally responsible and paragraph (b) that deals with accident with the law concerning manslaughter which often involves what is called an accident.

MR WALKER:   Your Honour, may I suggest that the textual resolution is carried out by the opening words of section 23(1), itself, that that is the textual resolution and then the question will be whether those opening words are sufficient to encompass cases of the kind that your Honour posits.  In our submission, they will be because the provisions of the Code dealing with, et cetera, et cetera, will pick up, not only provisions like 289 but provisions which deal, which codify what your Honour calls the “gross negligence cases” of which 289 is relevantly an important one.

GLEESON CJ:   I have a suspicion that was in fact raised by a remark that I saw the trial judge, in this case, make when there was an application for a direction.  The trial judges may walk very carefully around section 23(1)(b) because of this problem.

MR WALKER:   Yes.  That of course is not a reason not to put it, but it is a reason for your Honour’s concern.  I accept the stricture that this Court should not simply leave it at large without any guidance.  In our submission, for the reasons advanced by the President in the Court of Appeal, for the reasons I put in answer to the Chief Justice’s questions yesterday and today, the issue of section 289, manslaughter as a possibility, must be considered.  The outcome of that consideration is something upon which, in this case, it may be the parties would not differ, namely that upon consideration it should be rejected, for the reasons in fact advanced by the majority in the Court of Appeal, but that does not mean it should not be considered – of course it should.  Again, textually, section 23 in effect commands that it be considered.

In final answer to the Chief Justice’s question, given a choice between reading the Code as if it left unattended the very important area of criminal responsibility for killing in circumstances of gross negligence, that is it does not have explicit provision for the way in which that appears, and reading section 23’s opening words as referring to all the provisions of the Code which do cope with that possibility, the latter because it is a Code and because of its purpose ought to be preferred.  In this case no difficulty of that kind arises, for the reasons we have already put.

Your Honours, could I then briefly go to the summing‑up itself.  In the appeal book at page 386 his Honour tells the jury that he comes now “to the law that applies to the offence of murder”.  At about line 30 there is a reference to the basic definitions of a kind that I drew attention to yesterday and then at about line 35 this important passage appears:

It is unlawful to kill any person unless that killing is authorized or justified or excused by law.  Examples of authorization, justification and excuse include things like self-defence, accident.  In this case you are concerned with something that I’ll explain in greater detail later:  emergency, extraordinary emergency.

So at the beginning of the exposition of the relevant law for the purposes of explaining the matter to the jury two things were raised on the basis that they were examples not applicable to this case – self-defence and accident – and a third thing was raised as the one that would be relevant – emergency.  It was not therefore just a matter of leaving out – tiptoeing around a section 23 direction.  It was put to one side, consistently with the ruling that his Honour had earlier handed down.

On page 387 there is the passage which is an important passage in relation to the 302(1)(a) intention, which is linked to the particular case at about line 30 or so:

You may think that it is obvious if one were to shoot another in the forehead the inference could be drawn of the intention to cause death.

Now, that of course is the Crown case, not the defence case.  Over on page 390 the emergency is put in the middle paragraph and its link – its obvious link one might say – with an intention case is in the following paragraph commencing with the words “But, further”.  That illustrates, with respect, that the subsuming approach is a fallacy.  Of course emergency is not subsumed by the fact that if the jury found intention to kill they would have thus excluded extraordinary emergency.  You still have to put the defence case extraordinary emergency.  It is logically anterior, to use an expression from Justices Gummow and Hayne, or it is that which must first be dealt with, to use the approach taken by Justice Gaudron.

Then on page 391 there is explication of that variant of extraordinary emergency applicable in this case, namely, mistake, and your Honours will recall what I submitted yesterday about sections 24 and 25 of the Code.  After following that explanation, his Honour says, just after halfway on 391:

The provisions of our law concerning emergencies and mistakes of fact provide excuses from criminal responsibility.

Then there is what might be called the equivalent of the Mullen direction in relation to onus.  Thus the summing‑up precisely and, with respect, correctly in accordance with his ruling – the ruling that we say was wrong – focused the jury’s mind on two methods of excuse from criminal responsibility by words which, as it happens, left “accident” out – not simply by silence but also by its early illustration with self-defence of possible excuses, et cetera.  If one goes then over to page 394, in relation to the defence case ‑ ‑ ‑

HEYDON J:   He says he was not going to set out what counsel for the accused said in full.  Did counsel for the accused make anything of the expert evidence which would be the basis of the accident case?

MR WALKER:   Yes, your Honour.  Dr Vallati’s evidence?

HEYDON J:   Yes.

MR WALKER:   Yes.

HEYDON J:   Is that in the appeal book or is that ‑ ‑ ‑

MR WALKER:   I do not think they are transcribed.  I do not think it is in the book, your Honour.

HEYDON J:   No, but the point is the trial judge’s ruling was not seen as excluding that evidence from further materiality.

MR WALKER:   No.  It was not seen as excluding the evidence.  The reasoning appears to be – that is, adapting Mr Feeney’s argument ‑ ‑ ‑

HEYDON J:   It goes to intention.

MR WALKER:   ‑ ‑ ‑ that it would go to intention.  That in fact is significant in the paragraph I was about to go to.  Your Honours will see at about line 40 or thereabouts that this part of my learned junior’s case for our client ends up in that paragraph being put thus by his Honour:

in any event, there was no – on that account – there was no intention to cause death of grievous bodily harm.

All this evidence was understandably considered grist for the mill in resisting the Crown’s case of intention requisite for murder.  There was no putting of it in relation to the accident which the Crown also had to exclude beyond reasonable doubt.  Now, the significance of course – there is a reference.  At page 369 starting at about line 20, I think supplies ‑ ‑ ‑

HEYDON J:   That argument of course was not in the presence of the jury presumably, but anyway ‑ ‑ ‑

MR WALKER:   No.  That is the argument to which I took your Honours yesterday, but I do not think we have the address.

HEYDON J:   Ms Clare will contradict it if it is wrong, but you say that ‑ ‑ ‑

MR WALKER:   No, accident was not put.

HEYDON J:   But the evidence was ‑ ‑ ‑

MR WALKER:   Evidence was.

HEYDON J:   ‑ ‑ ‑ noticed.

MR WALKER:   Yes.  Now, your Honours, in the Court of Appeal – I have already referred sufficiently to the way the President dealt with the matter – could I just draw to attention a slight quirk, as it were, in the majority.  Page 430 in the reasons of Justice Davies, paragraph [76]:

On the appellant’s evidence and statements the defence of accident was clearly open; that the gun discharged independently of the exercise of his will.

That is a melding of (a) and (b) in a way that is not further explained.

HEYDON J:   Well, it is not melding.  It is a statement of paragraph (a), is it not?  Paragraph (b) does not come into it there.

MR WALKER:   Well, except it says “defence of accident”.

HEYDON J:   I see, yes.

MR WALKER:   It seems to thrust the content of (a) into the label of (b).  That is why I say melding.

HEYDON J:   Yes.

MR WALKER:   Now, that brings to mind of course the comments of Mr Justice Gibbs to which I have drawn attention, but it is not further explained.  Justice Chesterman, page 433, paragraph [92], about line 30, is quite explicitly section 23(1)(a), and then agreement with Justice Davies about the section being applicable, and then words which are appropriate only to (a), not (b).

In our written submissions we have raised the way in which (a) might have applied.  It depends upon the level of definition of description of the act in question but, as we point out, it was not sought.  It was accident, 23(1)(b), which was sought.  As we put in our written submission, the fact that to some minds 23(1)(a) may have been available – but we did not ask for that, and we are not complaining that the judge did not put that – only highlights the importance of having left out 23(1)(b).

GLEESON CJ:   When you say you did not ask for that – I have just been looking at pages 369 and 370 at what went on at the trial.

MR WALKER:   Accident appears at 42.

GLEESON CJ:   Yes, accident is the general rubric, but if you have a look at page 370, line 4, he is not guilty “Because he would have no intention.”

MR WALKER:   Your Honour, I read that, with respect, as simply negativing the case under 302(1)(a).  This is why there are some remarks, for example, in the Court of Appeal in Murray’s Case about section 23 having nothing to do with section 302(1)(a).  That is a very dense statement.  Properly understood and in order to be correct it means that if there is 302(1)(a) intention, then there cannot be the application of either of the limbs of 23, but the converse is also true.  If either of the limbs of section 23 has not been excluded, then there cannot be section 302(1)(a) intention.  That is how I read that, your Honour, I confess.

GLEESON CJ:   I am conscious of all the warnings about reading this Code through common law eyes, but in a homicide trial in a common law jurisdiction this question of the gun discharging while they were struggling for possession of it, or because somebody whacked it on the right side and caused it, because of its own defective mechanism, to go off, would be dealt with, I think, by telling the jury as the very first thing they had to consider, whether the act that caused the death of the deceased was a willed act of the accused.

MR WALKER:   The difficulty, your Honour, is that in order for the jury to understand that there would have to be precise identification of the act.  The act of moving to strike the gun so as to save life or to take the gun away from its present position is self-evidently willed.

KIRBY J:   Yes, but we have to be very careful, that we are in the mode of the Code.  There was some criticism of this Court’s decision in Barlow.  For example, there was an article in the Australian Law Journal where it was suggested that the Justices had come at the problem without adequate sensitivity.  Where the Code provides categories, it is very important that those categories should be considered for their application to the particular case, and these categories are different.  Category (1) in section 23 focuses on the will or unwilled act.  Category (2), which is the one you are now arguing for, focuses on the event.  It is a sort of fail-safe.  It says, “Well, you have focused on the acts, but now focus on the whole event and ask yourself can it be said that the event was an accident”. 

That is why Justice Callinan said there is another label in his little formula.  I just do not see the problem.  If the Code says it, and if we are faithful to the Code, why judges should deprive the jury, and particularly where counsel is pressing for it, the opportunity to pass upon that aspect of the Code.

MR WALKER:   Well, that is our point ‑ ‑ ‑

KIRBY J:   That belongs to the jury.  It does not belong to judges.  Whatever happens in common law States really has to be modified.

MR WALKER:   We respectfully adopt and urge as a submission the way in which your Honour has expressed that same point, both in Murray and Ugle.  In answer to the Chief Justice’s question, it will depend upon the particular case as to the way in which a summing‑up draws attention in relation to the willed nature of an act to the particular occurrences, physical actions in question.

GLEESON CJ:   This is all about the evidence of Dr Vallati, is it not?  That appears, obviously, from page 369.

MR WALKER:   In conjunction with my client’s evidence about the lunge.  You have to have the two together.

GLEESON CJ:   At 40 he says the matter for the jury to consider is whether the accused’s “grabbing of the gun and the position [with] which his right hand struck the gun” raises this issue.

MR WALKER:   Yes.  We say it is accident because the grab, or the lunge, is clearly in itself deliberate, and on the hypothesis that we say was raised and had to be excluded beyond reasonable doubt by the Crown, the defect, not said to be known to anybody, was the reason why that act indirectly caused the death of the deceased. 

Now, because it indirectly caused the death of the deceased, section 23 comes into play because otherwise there is a killing with no justification, authorisation or excuse.  If the word “excuse” then captures 23, or 23 operates without any need for the word “excuse” to capture it, that is why the level at which you define the act is critical.  We do not of course cavil with the need carefully to focus the jury’s attention on the need to be satisfied beyond reasonable doubt of what I am going to call the causal question, that is, that which is required by the Code:  in order for someone to have killed another they must have caused, directly or indirectly, that consequence.

Now, that naturally enough, in a case of this kind, will leave the narrative very quickly to the grab or lunge itself by the accused, described as intentional, the evidence that that may well have caused the discharge, and then 23(1)(b) applying, that discharge being an accident as understood by the authorities to which I have referred this morning.

KIRBY J:   This is just an off‑chance, but in both Ugle and Murray this Court ordered retrials with the requirement of added directions.  Do you have any knowledge of what happened in the retrials of either Ugle or Murray?  Did they ever go to Courts of Criminal Appeal?  Were there convictions?  Both were pretty strong Crown cases and ‑ ‑ ‑

MR WALKER:   I understand there was a plea.  My learned friend will be able to tell the Court in Murray.

KIRBY J:   Yes.

MR WALKER:   So that it did not go up to another court.  I do not know about Ugle.

KIRBY J:   They were both rather strong Crown cases.  In a sense, one gets the feeling that if this added ingredient had been added maybe it would not have made much difference, but maybe it would have.  If it is in the Code and it is asked for, and properly asked for, and is applicable, then it is a matter on which the verdict of the jury should be taken.

MR WALKER:   It remains only for me to complete what I was saying about the fallacy of the subsuming argument thus.  It is no answer to say that the jury in this case clearly accepted the existence of the requisite intention for murder, because that is a decision to which they came without the focusing effect required by a direction on section 23.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mrs Clare.

MRS CLARE:   If it please the Court.  It is submitted that no direction in relation to section 23 was required at all in this case.  It is further submitted that any issue in relation to section 23 of the Code would only arise in respect of the defence case.  Now, it is put against me that the issue of section 23 was intended by the trial judge to be subsumed under the direction of intent but, with respect, that is not quite right.  His Honour in fact dealt with this whole case in such a way that it was subsumed in his directions on the defence, that is, he gave the appellant the most favourable defence at summing‑up, or he expressed the defence in the most favourable terms possible for the appellant, because he put it to the jury in this way.  He told the jury that if there was a possibility, if they were unable to exclude the appellant’s version, if there was a mere possibility that that version was in fact right, then they had to acquit the appellant.

KIRBY J:   But it was not done by reference to one of the legal categories that the Code provided for.

MRS CLARE:   No, and it ‑ ‑ ‑

KIRBY J:   I just do not understand why a judge, especially where he has been pressed for this, would not put it in.  I mean, what harm is there?  It is in the Code; it has been asked for; it is possibly applicable.  It really, with all great respect to a very experienced trial judge, it is a certain obduracy to ‑ ‑ ‑

HEYDON J:   No, he arrived at a certain construction of section 23.  He was not being obdurate about it.  He might be wrong.

MRS CLARE:   He took a practical view of section 23 and a practical view of the evidence.  It is, as your Honour Justice Kirby mentioned yesterday, a case that really comes down to an assessment of the Alford v Magee point, that is, whether or not, on the true issues of this trial, it was necessary for his Honour to go to that extent to the law in order to allow the jury to resolve the issues that it needed to determine.

KIRBY J:   But there is a difference in 23(b), and that is that it addresses the event, whereas the first part of 23(1)(a) addresses acts and omissions.  So it is very much down in the engine room of the actual acts – the lunging and the gun, the manoeuvres – whereas the other is looking at the whole event.  In a sense it gives the accused a second chance to justify or excuse, whereas that is not a matter to which the jury has been directed to address its attention.

MRS CLARE:   Yes.  On the structure of section 23, on the practical operation of section 23, one would only need to go to the second limb if the jury were satisfied that it was a willed act.  If it is a willed act, then section 23(1)(b) has no practical operation because there is already criminal – I am sorry, I am confusing myself.  If it is an unwilled act, then there is no criminal responsibility, unless it is a case where criminal negligence applies.

KIRBY J:   I can see the argument for that, as a matter of logic, and the design and order of the section, but another view – right or wrong – is that you can just pass straight to (b) if you think the whole event is an accident.  You do not, as it were, have to go through the gateway of (a) first and reach a view that there has been an act or omission that is unwilled or willed.

MRS CLARE:   In a practical sense though, if a jury is instructed on both limbs, then in relation to the first, if there is a finding against the Crown, that is that the jury is not satisfied that this was an act independent of the exercise of the will, so that the jury cannot exclude that it was an act independent of the exercise of the will, then that is the end of the matter.  There is no criminal responsibility.

CALLINAN J:   Mrs Clare, I do not know.  I will tell you the matter that concerns me.  It seems to me that the point the defence counsel was trying to make at the trial was very closely associated with the submission that the expert evidence was critically important here, Dr Vallati’s evidence.  If the trial judge had given a direction on the second limb, it would very much have thrown into sharp focus that expert evidence.  It would have thrown it into a much sharper focus than his Honour’s summing‑up in fact did.  You may be able to correct me on this, but it seems to me that his Honour’s only reference to the expert evidence is a very non-specific one at 396 at about line 27.  There may be other references; I do not think there are though.

MRS CLARE:   I cannot answer that, your Honour, at this point but ‑ ‑ ‑

CALLINAN J:   Well, let us assume that if there are any others that they do not go any further than that, which is simply a reference to what the defence submission was about the expert evidence.  If his Honour had said to the jury, “Look, you might regard this as falling under (a) or you might even regard it as an accident, and in that connection you would pay close attention to Dr Vallati’s evidence”.  Because that was really an event, the accidental discharge of the gun as a possibility adverted to by Dr Vallati.  It seems to me it falls fairly clearly within accident.

MRS CLARE:   It could also fall within ‑ ‑ ‑

CALLINAN J:   Of course it could, but “accident” is the word the Code uses.

MRS CLARE:   Yes, and it has a very specific meaning.

GLEESON CJ:   What is that?

MRS CLARE:   It means that it is a consequence which is neither intended nor foreseen by the accused, nor foreseeable by an ordinary person in the position of the accused.  That is the definition that was provided by his Honour Justice Gibbs in Kaporonovski, it was accepted by this Court in Van Den Bemd and recently in Murray.  I can just give you ‑ ‑ ‑

CALLINAN J:   Well, Sir Samuel Griffith did not involve himself in a futility when he carefully drafted the two limbs of section 23.  He obviously had in mind the possibility of different concepts.  Some might on occasions overlap, some might come very close, but they were obviously different concepts that he had in mind.

MRS CLARE:   If I can just say at the outset, and then get into the substance of my submissions – my fundamental submission is the way in which the summing‑up was framed by his Honour effectively protected the appellant from any risk of a conviction for an act occurring independent of the exercise of his will or for a death which was accidental.  The approach in the summing‑up really comes back to the way in which the matter was litigated.  It is, as has been said by my learned friend, a case which was presented and accepted as one of murder or nothing, that manslaughter was not raised as a legitimate alternative by the evidence.  It is further the case that section 23 was not argued by the appellant in the court below, was not relied upon ‑ ‑ ‑

KIRBY J:   That does not really matter because it was very properly reserved at the trial.  It was picked up by the judges and the duty of the court is to apply the law.

MRS CLARE:   Yes, I understand that point, but the way in which the parties themselves perceived the case and the true issues in the case is in fact a legitimate consideration for determining what indeed were the true issues.  In this case it is relevant to know that the first limb of section 23, that is, the willed act, was not raised or relied upon by the appellant at any time until this Court.  So it was not asked for in the trial.  Furthermore, it was not relied upon even when the President raised it in the context of the appeal below.

McHUGH J:   But if it was a defence that was open to the accused then Pemble decides it was the trial judge’s duty to put it to the jury and you are forced to say, are you not, that 23(1)(a) is subsumed under the direction:

A person who unlawfully kills another intending to cause the death of the person killed -

You have to say that by the words “killing another intending to cause the death” that that inferentially covers the case of an act or omission that does not occur independently of the exercise of the person’s will.

MRS CLARE:   I rely more specifically on the direction at page 390 and I will take the Court to it in a moment, but it really comes about in this way, that there are two parts to this.  The first is the defence case, the appellant’s version, and then there is what is left after the appellant’s version has been rejected because in this case on the instructions given to the jury, the jury clearly have rejected the appellant’s version and if we deal with the first part of it, that is, the appellant’s version, the Court of Appeal majority, that is, Justice Davies and Justice Chesterman, took the view that the first limb, that is, “will that” was raised on the defence version because they formed the opinion that it was open to the jury, even on the appellant’s version, to find that he had, in fact, caused the death.  That was the view taken by the majority of the Court of Appeal and it seems also by the President. 

But that is a different view from that formed by the learned trial judge Justice Helman.  He assessed the evidence to be such that the Crown was incapable of meeting the burden of proof in relation to the issue of causation and that is the way he directed the jury and one might have some sympathy for that approach because even though, on the appellant’s version, the grabbing for the gun coincided in timing with the discharge of the gun, it was, on the appellant’s version, a situation where the man with the gun and with his finger on or near the trigger, wanted to kill himself, was in a position to kill himself and the appellant gave evidence that he thought he had in fact killed himself.  So, in those circumstances it would be very difficult for the Crown to exclude at least the possibility that that was right, that he had killed himself. 

Causation, that is, the fact of whether or not the appellant had indeed caused the death of the deceased, has to be an anterior consideration to this issue of section 23 and an anterior consideration to the issue of whether or not his act was willed because section 23 relates to the death causing act of the accused.  If he has not caused the death, if he has not done the fatal act, then of course section 23 is not reached and that is the way in which his Honour put it to the jury and at page 390, from about line 20, his Honour tells the jury in the context of the defence version, unless they can exclude that version they must acquit the appellant and he tells them three reasons for this.

He says the first is because the Crown cannot prove that he caused the death.  The second is because, otherwise, the situation would be such of an emergency and therefore completely justified and the third reason is because there was no intention.  That is the way his Honour left it to the jury and, in my submission, that is an easier and cleaner way for the jury to understand what this case was all about.  It is much cleaner and neater than putting a proposition that the Crown had to negative the possibility that the act occurred independently of the exercise of the will.

McHUGH J:   Well, let us analyse the three bases upon which you rely at page 390.  The first one, and you seem to emphasise it, was “that the accused’s action caused the rifle to discharge”.

MRS CLARE:   Yes.

McHUGH J:   Now, that proposition is not synonymous with an act or omission that occurs independently of the exercise of the person’s will.  The accused’s action may have caused the rifle to discharge because he bumped – he did something with it, but under 23, it is a question whether the act or omission occurred “independently of the exercise of the person’s will” so it does not seem to me at the moment that it is sufficient to say that 23 is answered by the first point and then the second one is dealing with the emergency which is even further removed from 23(1)(a) and then the last one is a question of intention which is another concept altogether.

MRS CLARE:   The submission is not that these amount to a direction in relation to section 23 but they make a direction in relation to section 23 unnecessary, in favour of the appellant.

McHUGH J:   I have some difficulty at the moment in thinking that they do because an act or omission that occurs “independently of the exercise” of a person’s will is not necessarily synonymous with any of the three scenarios put at page 390.

MRS CLARE:   No, because that part of the direction is focusing on the appellant’s version and I will deal in a moment with what is left after the appellant’s version is rejected, but his Honour has directed the jury there that if they even have a doubt about the appellant’s version, then the Crown has not proved that he has caused the death and that is the end of the matter.

McHUGH J:   In the civil case this Court has said, Williams v Smith 103 CLR 539 that a jury is not obliged to adopt the precise case of either party and it has always seemed to me that that proposition applies in a criminal case. The jury, as long as it is acting within the bounds of the evidence, can work out its own version of the facts. It does not have to adopt every witness’ account or one to the exclusion of the other or the prosecution or the defendant’s case. It can mix them up to some extent and when you get in that context and having regard to Pemble and you have section 23 with its specific provision about accident and will applicable in all criminal trials, why is not the accused entitled to the benefit of a direction?

MRS CLARE:   Because factually, it was not raised other than on the appellant’s version.

McHUGH J:   I know.  Maybe that is your strongest point, that given the way the case was conducted ‑ ‑ ‑

MRS CLARE:   And it does rest on the way the case was conducted, but if I can take your Honour’s point about the possibility that a jury may accept and reject parts of evidence, this version from the appellant is not a case like that because at the very heart of it is this claim that there was a very real overt suicide attempt before his very eyes.  Now, there is ‑ ‑ ‑

McHUGH J:   I know, but the suicide theory does not seem very plausible ‑ ‑ ‑

MRS CLARE:   No.

McHUGH J:   And so that is a bit of baggage the accused’s case is carrying, but nevertheless he did make that statement to the ambulance officers about accident, hesitant though it may have been.  The jury may have thought that something else happened here and that in some way he was obviously responsible.  His rifle got there.  The ammunition in it came from his office.  Just on what he said to the ambulance officers alone was surely sufficient to raise the 23(1)(b), at least, defence?

KIRBY J:   I am surprised that you, who have been the victim of it so often, are resisting, except in order to win this case, two things which seem to be sort of central.  First, there was a specific request to have this matter put to the jury.  How often have you been in this Court and have we been in the Court when it is an afterthought, they have thought of it either in the Court of Appeal or for the first time in this Court.  Well, now here we have a proper reservation of the matter.

MRS CLARE:   Yes.

KIRBY J:   And secondly, as a Queensland lawyer with people who are not Code lawyers, you are moving away from what seems to be the central tenet of the Code, that is, you stick with the text and if you have a basis to put the matter to the jury to have the jury pass upon it, you let the jury decide the matter for the reasons Justice McHugh has been saying and it was specifically sought and reserved so it is not true to say that this was not the way – the facts are one thing but the categories and the differential use of the word “event” – it, in a sense, invites a global approach.  The Code, the magical and sacred words of the Code require attention by the jury to was the event - whatever the acts and omissions - an accident, or happened by accident.

MRS CLARE:   Yes.

KIRBY J:   It seems to me they are the two most powerful reasons in this case.

McHUGH J:   You do not put any submission, do you, that 23 is not applicable to 302 or 289?  It was held in Hodgetts’ Case was it not, that 23 is not available to 289?

MRS CLARE:   Well, it is not available for 289 because the commencing words of section 23 expressly exclude considerations of negligence.

GLEESON CJ:   That is a marginal problem but one that is still worrying me and that is how you relate section 23 and the text to cases of manslaughter.  Section 23 in terms says that:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for . . . 

(b)      an event that occurs by accident.

Does that mean that if a provision of the Code, if an express provision of the Code relating to negligent acts or omissions applies, 23 has nothing to do with it?

MRS CLARE:   Yes.

GLEESON CJ:   So, how does that operate in the case of manslaughter?  Is manslaughter by gross negligence the subject of an express provision of the Code?

MRS CLARE:   No.  The path to manslaughter would be twofold, two options.  The first would be a finding that there was a willed act and it was a foreseeable death but that section 289 applied, that was that it was – sorry, that there was a willed act, that death was foreseeable, so section 23 is satisfied, but that there was no intention to kill so that the definition of murder was unsatisfied, it was an unintended killing.  The alternative route to manslaughter would be to say that it was in fact a case where the person had control or under his charge a dangerous thing and used it negligently in breach of section 289.

GLEESON CJ:   Now, in the present case unless the jury began to speculate about matters that were not the subject of evidence, how could any question of manslaughter arise?  The defence case was, was it not, that the accused, seeing the victim about to commit suicide, tried to wrestle the gun away from the victim and the gun, because of its defective condition discharged?

MRS CLARE:   The defence case was that he in fact shot himself but they had the Crown lead the evidence of Vallati about the state of the gun.

GLEESON CJ:   Leaving aside the possibility of actual suicide, the alternative defence argument was as I have just put to you.

MRS CLARE:   Yes.

GLEESON CJ:   No one suggested, did they, that it would have been negligent of the accused to attempt to wrestle the gun away from the deceased?

MRS CLARE:   No.  The provision for negligence did not have an evidentiary basis because there was no evidence that he ever had control of the gun and operated it negligently ‑ ‑ ‑

GLEESON CJ:   Do you agree with Mr Walker that on the facts of the case and on the issues raised at trial, there was no case of manslaughter to go to the jury?

MRS CLARE:   No, I agree with that.

McHUGH J:   Well, let me put this to you.  Supposing the jury rejected the view that the accused intended to commit suicide and they formed the view that the accused had brought the gun into the office in some way and they were not convinced he intended to kill him because of the friendliness between them and their general relationship but some sort of struggle had gone on which resulted in the gun being discharged.  Why could not the jury take that view of the case?

MRS CLARE:   That it was criminal negligence?

McHUGH J:   Criminal negligence.

MRS CLARE:   First of all, what we know about the injury ‑ ‑ ‑

McHUGH J:   I know the gun was up close to the forehead, we know that, but that is not inconsistent with a struggle.

MRS CLARE:   But it does define where the gun was, perhaps, because the appellant’s versions benefit – or the advantage of the appellant’s version of this attempted suicide is that it gave some kind of explanation as to how the gun, how the appellant could have been touching the gun, not responsible for the death but still have the gun held against the forehead in that horizontal position in which it discharged.

Now, if the jury rejected, as the evidence strongly suggested they should, that the deceased was committing suicide, to consider that there was a struggle, without the appellant – sorry, the first point in relation to that is that the appellant’s own version cannot be divided in respect to the struggle and the suicide because it really is at the heart of what he is saying and his explanation for grabbing the gun.  If you take out the explanation of the suicide emergency situation, then there is no justification for him struggling for the gun.

KIRBY J:   On the special leave, Mr Walker suggested that the intermediate position was that the jury rejects the theory of suicide but is prepared to concede that the deceased might have thought that.  In other words, the jury did not believe the suicide but a hypothesis they have to exclude is that the accused thought that and got involved in the struggle, an event which was accidental.  Now, why is that not available?

MRS CLARE:   Well, mistake was left, but even more frankly, if the appellant’s description of what happened was not true, then there is really no basis for thinking that he thought there was a suicide at all.  I mean, his story is that this man is clinching his eyes with his gun held out ready to shoot.  It is a very overt, unmistakeable description.  If you ‑ ‑ ‑

KIRBY J:   That is his perception.  That is how he describes it.

MRS CLARE:   It is something that is very difficult to be mistaken about, but if the jury rejected that description, then there is no other evidentiary platform to get to the place your Honour is suggesting, with respect.

McHUGH J:   The evidentiary platform for the view I put to you is that the jury rejected (a) that the deceased intended to suicide, or ever said anything like it or ever indicated that he was likely to and, on the other hand, the jury would not be satisfied beyond reasonable doubt the accused had an intention to kill this man.  But there was a lot of history.  I do not think juries would be acting outside the evidence if they thought that the accused would have been angry by what he regarded as a betrayal, that words were said, that he took the gun there and he has caused the death of the deceased.  He said it was an accident and the jury are not convinced that he intended to kill him.  Why could they not bring in a verdict of manslaughter?

MRS CLARE:   Putting aside the appellant’s version, it is then purely a circumstantial case.

McHUGH J:   Yes.

MRS CLARE:   Two people in the room, one of them dead.  If he did not kill himself, then we look to the other fellow, and I know your Honour does not like me going back to the circumstances of the gun, but in my submission that is an important part because the jury are left with the knowledge that the appellant has held the gun directly straight out at the forehead of the deceased, but ‑ ‑ ‑

McHUGH J:   Well, I assume there is a struggle for the gun, they are fighting for the gun, he has pushed his arms up and off it goes.  You do not need much imagination to see ‑ ‑ ‑

MRS CLARE:   But there is no evidence of a struggle outside of the appellant’s version and that is tied up intrinsically with this notion of the suicide and if you put that to one side, even the evidence of Dr Vallati does not assist because it does not act unless there is some intervening violence, that there has to be some level of significant violence to the gun because Dr Vallati’s evidence was that this gun, when hit with a mallet or a hand in a karate chop, would only discharge when it was hit at this precise point behind the rear of the sight, I think is the description.  But it had to be hit in this precise point and he conducted his tests in a way to maximise the possibility that it would in fact discharge because he said that holding the gun would dampen the vibrations of the effect of any blow to the gun.

So, in securing the gun at the very end and then conducting the series of tests after working out the rest of the gun was not unsafe, this series of tests only on this one, very small area behind the sight, he found that one in five karate chops to that area would discharge the gun.  So his evidence was not of a gun that would simply explode but that there needed – if it was not the trigger, which was a safe trigger pressure, it was a significant act of violence in a very limited area. 

There is evidence that people in the office had used the gun.  They used to use the gun for shooting out in the back of the property.  Nobody had a problem with the gun.  Nobody was aware that there was any issue with the gun.  The appellant himself gave evidence that he was not aware – he had used it and he had found no problem with the gun, in answer to a question that was earlier.  He said that he was aware that it was old and he was aware that the extractor in it was damaged but that was not a factor in any element of dangerousness.  That evidence is at 298, line 45.

KIRBY J:   Who owned the gun?

MRS CLARE:   He did, it was his gun and Dr Vallati gave evidence that it was in fact a safe gun.  It would meet any safety standards for sale.  He gave that evidence at 135, about line 5.  So it was not a case of an outrageously unsafe gun.

McHUGH J:   Was that affected by the fact that he had dismantled the gun which was said to cause problems for an expert opinion?

MRS CLARE:   Well, there was that argument put by the Crown because he was the third in line effectively and the two Crown experts had examined it and dropped it and struck it and there had been no discharge.  He came along to do his test, the third in line, and he dismantled it and then did those tests.  So for that reason the Crown said that that was one of the reasons why his evidence was less than impressive than the others, but even using that evidence, which was the highest for the appellant, it does not, in my submission, take the matter to the place where the appellant wants to take it. 

GLEESON CJ:   On the defence case, how did the deceased come to get hold of the appellant’s rifle?

MRS CLARE:   The evidence was that it was stored in the appellant’s office and that the deceased knew where it was and had access to it.

McHUGH J:   Not only that.  There was evidence that the deceased had taken hold of the gun at one stage and jokingly said, “The way we deal with people who turn up late at meetings is to kill them”.  He had the gun.  That is right, is it not?

MRS CLARE:   Yes, that is right, but it was not suggested that he was pointing the gun, but that he had the gun.

McHUGH J:   No, but he had the gun.

MRS CLARE:   Or he had a gun and the witness, Mr Bryant, was not able to state it was that gun, he said it looked different.  Just addressing your Honour the Chief Justice’s point about common law States and the direction about willed act at the start of any charge for murder, there is, certainly under the Code, an evidentiary onus for section 23 and if I can refer you to Falconer’s Case 171 CLR.  That is a decision under the Western Australia Code which is in all parts, for all our purposes, consistent or the same as section 23 of the Queensland Code.  At the bottom of page 67 his Honour Justice Toohey said that:

The Code contains no presumption of exercise of the will comparable to the presumption of soundness of mind . . . “the presumption of sanity . . . logically incorporates a presumption that an act done by a sane person is a voluntary one, viz, in short, a presumption of voluntariness” . . . 

No doubt there is an evidentiary onus on an accused properly to raise the question of voluntariness for consideration by the jury.

GLEESON CJ:   Well, the next sentence is important, is it not?

MRS CLARE:  

But the onus is on the Crown to satisfy the jury that the act or omission did not occur independently of the accused’s will.

That is so, but there has to be an evidentiary basis for it in the first place.

CALLINAN J:   But it only has to be very slightly raised, does it not, Ms Clare?  I wonder whether his Honour’s statement goes somewhat further than a lot of United Kingdom authority, for example, and I think other Australian authority.

MRS CLARE:   It is a consideration of the same legislation ‑ ‑ ‑

CALLINAN J:   There just needs to be some evidence of it somewhere either coming from the Crown case or from the defence case.  Is that not right?

MRS CLARE:   There has to be sufficient evidence ‑ ‑ ‑

CALLINAN J:   Well, some evidence.

MRS CLARE:   If I can refer your Honour to page 83 of that same judgment, the judgment of Justice Gaudron in the first complete paragraph:

It should be accepted as settled that there is an evidentiary presumption that an act done by an apparently conscious person was done voluntarily: see, e.g., Bratty; Ryan v The Queen . . . An evidentiary presumption means only that, without evidence one way or another, a particular state of affairs is accepted as fact because it is ordinary and universal experience that, save perhaps in extraordinary situations, it is always so.  The practical effect of an evidentiary presumption, based as it is on ordinary and universal experience, is that it can only be displaced by credible evidence assigning a cause sufficient to explain what, if it happened at all, must be viewed as an extraordinary event.

CALLINAN J:   But that would have to include inferences open on evidence too, would it not, Ms Clare?

MRS CLARE:   Yes, but fairly open, that is reasonable inferences.

CALLINAN J:   Of course, yes, quite, not ‑ ‑ ‑

MRS CLARE:   In the joint judgment of Justices Deane and Dawson, there is reference to the same thing at page 61 in the last paragraph on that page.  Again, in the decision of Murray 211 CLR, there is reference by your Honour Justice Kirby to the same presumption, page 214, paragraph 64, and their Honours, Justices Gummow and Hayne refer to it in that same judgment at page 211, paragraph 52 and those Judges acknowledge the existence of the presumption but state the obvious, that it is of no assistance once the evidentiary burden is met.  So the presumption does not assist, of course, once there is evidence sufficient to raise the issue.

Coming back to the way in which this case dealt with those issues and particularly having regard to that passage on page 390 that I referred the Court to, it is submitted that there – well perhaps I can go back one step. 
Murray is perhaps the case which is closest to the present in respect to the way in which the trial judge approached the issue of section 23.  Murray was a case where the accused presented a loaded firearm at the deceased who was sitting down.  The accused claimed that the gun discharged without any intention on his part, that something had been thrown by the deceased, hit him in the head, and the gun went off so the issue was seen to be one of whether or not the accused intended to frighten the deceased by the presentation of the firearm or whether he, in fact, intended to kill him.

Now, the failure to lead the first limb of section 23 was one of the grounds of appeal.  The majority of the Court were satisfied that the way in which the trial judge dealt with that issue, by rolling it up into an acceptance or rejection of the defence case, was adequate to meet any concerns about section 23(1)(a).  Justices Gaudron, Gummow and Hayne were of that view.  The other Judges, Justices Callinan and Kirby, came to a different conclusion on the facts of that case.  If I can just refer the Court to Murray 211 CLR, Justice Gaudron at 201, paragraph 21.  Her Honour says:

In framing the matters which the jury had to decide by reference to the appellant’s version of events, the trial judge sufficiently raised the questions whether the gun discharged without the application of pressure to the trigger and whether it was discharged by the appellant in a reflex or automatic motor action, treating the latter possibility, in effect, as an unwilled act.  There was thus no need for her Honour to direct the jury with respect to that issue.  Accordingly, no miscarriage of justice was occasioned -

Similar comments were made by their Honours Justices Gummow and Hayne at page 212, particularly in paragraphs 54 and 55.  Justice Callinan, as I said, came to a different view at page 236, particularly at paragraph 150 and if I can refer the Court particularly to your Honour Justice Kirby at page 222, paragraph 87.

KIRBY J:   I think I was saying much the same things as I have been saying to you during this hearing.  It is amazing how consistently we all are.

MRS CLARE:   I am just sorry that I am missing two Judges in this appeal.  In this paragraph, in particular, if I can refer to this part which is halfway down, your Honour says:

In some cases, depending on the evidence, there will be no additional relevance of s 23(1)(a) of the Code.  But in the present case, where the factual dispute concerned the last “act” that caused the death of the deceased (the pulling of the trigger or whatever other “act” caused the appellant’s gun to discharge) it was necessary for the trial judge to leave the provisions of s 23(1)(a) to the jury.

That was the point that your Honour made in respect of that case. 

KIRBY J:   So you use that to say that in every case it has to be anchored back in the actual evidence called at the trial.

MRS CLARE:   That is so and, in my submission, this is a different case.  Your Honour’s observations in that case can be distinguished from the facts in this case.  In this case I say that there was nothing to be gained by going into the first limb of section 23(1)(a), or the second limb, but in relation to the first limb, it provided no added avenue of acquittal, as I have already argued, and it accorded really with ordinary sense of justice, that is if the appellant was trying to save this man then he ought not be guilty.

KIRBY J:   I realise that and I see that we had to think about that but I cannot get out of my mind the fact that within half an hour of the death, the accused, before he had had the chance of getting legal advice and a lot of clever people turning to the issue and advising him how to present his case and so on, said spontaneously to the ambulance drivers, “I’d call it an accident”, and forensically that just seems to me a very powerful thing.  The code talks of accidents – and not to take the jury’s verdict on the Code on what was his spontaneous defence and what his counsel pressed upon the judge as a matter that should go to the jury just seems to me unwise.

MRS CLARE:   I appreciate your Honour’s concern about that term “accident”, but the term itself and the way it was used is equivocal and it is ambiguous.  On its face, it might also appear to be a claim of accident for the deceased rather than himself going back to that causation issue.  If one carries it logically forward where it is expanded through the records of interview and his own evidence, it is clear what he is saying is that, “The deceased killed himself.  I’m of the view that he killed himself.  If he didn’t it was me trying to stop him from doing so”.  It had to be clear to the jury, all the way through this trial, that that really was the critical issue.  That was the focus of the trial and it had to be clear to the jury through what his Honour said in summing‑up that that was the issue in the trial.

The omission of a reference to willed acts from one view was actually more favourable to the appellant because reference to that would have the capacity, in the context of this case, to actually confuse the issues or to obscure the defence because the appellant’s case fundamentally was that he did not cause the death.  Reference to willed act actually assumed that he did.  That is my first point.

The second point is that there is a possibility, when the jury considered this issue of willed act, if it was put specifically to them, there is a very real possibility that the jury would have concluded that it was, in fact, a willed act because if one takes the definition that your Honour Justice Kirby gave in Ugle of acts being whatever the appellant has done to cause the discharge of the gun, the grabbing for the gun could be seen, if we take it through from Vallati as the cause of the death.

There was no issue in this case that the grabbing of the gun was a deliberate and conscious movement by the appellant.  He specifically did it, and it does not matter for the purpose of section 3 that his motivation was pure because section 23 says motive is immaterial.  Section 23 says that the intended result is immaterial so it does not matter, for the purposes of consideration of the willed act, that he may not have intended that the gun, in fact, discharge.

That perhaps comes back to what your Honour Justice Kirby said in Murray, the passage that I just read from, the distinction being that the consideration in Murray was the last act in the chain because in Murray, as in Ugle and in Ryan – the hold-up of the service station attendant, the presentation of the gun – in each of those cases it was the accused who created the dangerous situation, the accused who brought the weapon into the situation and the focus of the defence in each of those cases was really on the last act, that is whether the pulling of the trigger was a willed act in Ryan and in Murray or whether the wielding of the knife in Ugle was the willed act.  But those were cases where the danger was created by the accused.

This case is the complete reversal because in this case, on the appellant’s version, he walked in to the situation of danger, he was confronted by an already volatile dangerous situation and it was the last act in the chain if he did in fact cause the death, which was his act and which was voluntary and that, in my submission, is a substantial distinction in relation to Murray which would do away with your Honour’s concerns in Murray about the failure to lead section 23.

In relation to the second limb, that is the accidental death, it is, as a matter of practical reality, as I said earlier, a provision which will only need to operate if the issue of willed act has been decided in favour of the Crown.  If it was raised in this case it was raised only on the defence version and it was, as I said earlier, excluded by the way in which his Honour summed up to the jury by telling them that they simply could not convict if there was a possibility that the appellant’s version was correct.

KIRBY J:   Is there authority that says that that is how the Code is to be interpreted, that is to say you have to first pass through gateway (a) before you get to (b) because another way of reading it is the jury can just go to which of the two categories it thinks is more apt, one focusing on acts and omissions, the other focusing on the whole event, just bypassing (a) altogether. 

MRS CLARE:   There is reference in judgments to a framing of the test in the context of a willed act, whether the consequence of the willed act was foreseeable. 

KIRBY J:   Do not do it now, but if later you and Mr Walker can find any authority that says you have to go through the gateway of (a) before you get to (b), I will accept the wisdom of the Code lawyers.

MRS CLARE:   I am sorry, I do not mean to mislead because I do not put it as highly as that.

KIRBY J:   It does not seem to be the natural reading of the Code, you could use either category.

MRS CLARE:   It does not mean that in a strict legal sense you are deprived of looking at it, but I am simply speaking in practical terms because once a jury is not satisfied that this is a voluntary act, that is the end of it.

GLEESON CJ:   If the judge tells the jury that if they think there is even a possibility that the accused’s version of what happened is true, they must acquit, does the judge have to tell them the legal reason for that?

MRS CLARE:   In my submission, no.  It is simply the Alford v Magee point that the judge, as a matter of law, has given them that direction and that the jury must be taken to act on the instruction that is given, that there is no need to go into a dissertation on the law behind it.

KIRBY J:   Yes, but that is why I like Justice Callinan’s proposed direction ventured on the special leave, “Ladies and gentlemen of the jury, we have another category, another label in our law; that is whether the event is to be viewed as happening by accident.  If you reach the view that that is a possible interpretation of the events, then you will acquit the accused”.  It just seems, in the light of Vallati’s evidence and in the light of the statement to the ambulance service, that was really called for in this case.

I feel a sense of disquiet at depriving the accused of the right to the verdict of the jury on that given that it is in the Code and that it is there and it is alternative and it is separate and it is focused on the event, not on the acts.  I just do not see that it is a right thing particularly as it is being pressed.  We want to encourage counsel to reserve points and press them at trial, not invent them when they come to the High Court.  I think we are going round and round.  I am not sure that ‑ ‑ ‑

MRS CLARE:   Yes, perhaps.  My submission is that there was no need to instruct the jury in relation to the second limb if there was no issue about the foreseeability of the death, that that really is the effect and there was no issue in this case that death was foreseeable in circumstances where the gun was held against the forehead of the man.  It was a natural consequence ‑ ‑ ‑

KIRBY J:   We have to ask Mr Walker to lay it on the line, how he says consistent with the facts of the suicide and coming upon the accused attempting to kill himself, how he can say in those facts that an accident is a hypothesis that is seriously an issue.  That is really your main point and that is the Alford v Magee point and that is the point that emerged from the special leave and Justice Hayne was onto it and that is the point you have really pressed upon us.  Do you say, apart from everything else, no miscarriage ‑ ‑ ‑

MRS CLARE:   A proviso point, yes.  Your Honour, it is comparable to Kaporonovski where his Honour Justice Gibbs, as he then was, made the point that the forcing of the glass into the face of a man meant that grievous bodily harm, which was the charge in that case, was a reasonable possibility.  That is at page 232 in the first paragraph of that judgment.  In Murray itself, the shotgun death, the consideration of the second limb was unnecessary for the Court because it was, in fact, left - accident was left by the judge but Justices Gummow and Hayne said that it was unnecessary, in the circumstances of that case, to leave accident – page 208, paragraph 43 – because the firing of the gun meant that death was a foreseeable consequence.

Similarly, in Ugle Justices Gummow and Hayne at page 178,
paragraph 27, took the same view in relation to the penetration of the knife into the body.  Death was a foreseeable consequence.  Again, in Ugle and Murray your Honours Justices Callinan and Kirby took a different view as to whether or not a specific direction should have been given.

KIRBY J:   Justice Callinan was the only Code lawyer there and I was the honorary Code lawyer.

MRS CLARE:   The reference to your Honour Justice Kirby’s judgment in Murray is 225, paragraph 99, and again in Ugle at page 185, paragraph 54, and I took the view that accident was factually open on the appellant’s version because it was open that he had impaled himself.  Ugle was a different case to the present because, although the judge left the defence of self‑defence, it did not necessarily negative any use of willed act.  It was not automatic in that case that Ugle would be successful on it because there were very real issues about whether it was in fact self‑defence, whether or not it was excessive.  One of the big problems for Ugle was that he had voluntarily brought the knife into the fight himself, so it was doubtful from the beginning that he could have succeeded even on self‑defence.  So simply putting his case as one of self‑defence did not answer the possibility of a conviction in relation to an unwilled act.  That of course is very different from the present, in my submission.

Perhaps the only other case I should cite just briefly is Griffiths (1994) 69 ALJR 77. Griffiths was a child who had given a version of events to the effect that he said to a friend, “I shot him. It was an accident. I didn’t mean it”. That was sufficient to raise a requirement for both a direction on criminal negligence and also the first and second limbs of section 23. It too can be distinguished from the present case, in my submission. The first is that it was a positive claim of accident for himself. It was not, as it is in this case, a claim that it was really the deceased who killed himself or caused events to follow. Griffiths was claiming physical responsibility for the death.

The second issue in relation to Griffiths is that there was very little evidence of the circumstance in which the gun had discharged.  All that was known was that two friends had gone off into the bush, they had a gun and one of them was shot in the back of the head, which is different to the present case because we know how the gun was held when the deceased was shot.  The third point of distinction is that in Griffiths it was not simply a failure to put a direction but it was the actual withdrawal of the issue from the jury’s consideration.  At page 79, paragraph F in the left column in the joint judgment said, after it recognised that:

A plea of not guilty puts all elements of the offence charged in issue . . . That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element.  It is one thing not to give a direction on an issue; it is another to withdraw an issue from the jury’s consideration.

KIRBY J:   Does that not apply here?  Here there has been a withdrawal despite the request for the accused of the provisions of section 23(1)(b).

MRS CLARE:   With respect, my submission is that there has been no withdrawal.  His Honour has been silent on it but he effectively has directed in a way which protected the appellant from a risk of being convicted of an accident because he has said ‑ ‑ ‑

KIRBY J:   Well, we have been there.

MRS CLARE:   Yes, I do not want to repeat myself again.

KIRBY J:   If the jury do not know the terms of 23(1)(b), then not to give a direction on it is effectively to withdraw it from the jury, not to seek their

collective mind upon it and not to take their verdict in the light of their resolution of that issue of law.

MRS CLARE:   In Griffiths his Honour specifically told the jury that there was no – if they were satisfied that Griffiths had killed the deceased, he was guilty.  That is a different case, in my respectful submission.  Perhaps before I finish, your Honour the Chief Justice had asked me about the technical meaning of “accident” in subsection (1)(b).  I had the specific references that I – some specific references.  It was Justice Gibbs in Kaporonovski at pages 231 to 232.  That definition was accepted by this Court by the majority in Van Den Bemd and then again, as I said, referred to in Murray, for example, in the joint judgment of Justices Gummow and Hayne at 208, paragraph 43.  Those are my submissions.

GLEESON CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, as to Dr Vallati being third in line, a matter which was referred to by the President in the Court of Appeal and noted by my learned friend just now, it is to be noted that there was evidence of a kind the jury would be able to weigh - the policeman, Bennett, at 80 in the appeal book, especially lines 20 to 25, and of Dr Vallati himself at 144, line 30, to 145, line 28 in the appeal book, which would rather tend to detract from the idea that the Vallati opinion was expressed upon what might be called contaminated material.

The way in which my learned friend put it at one point was that this was a case where the nature of the summing‑up requires to be assessed against the simplicity of the circumstantial case for the Crown absent any case positively by the defence.  My learned friend described that in a simple way, namely there were two men, one gun, and one of the men was dead.  In our submission, the way in which that was put, though, with respect, admirably simple, obviously leaves out and begs the question of the possibility not just of suicide or homicide but of accident.  Logically and in the nature of things, two men, one gun, and one of the men dead does not of itself exclude accident.

KIRBY J:   But what is said is that the actual factual substratum, the grimacing on the face, finding him in a position where he has the gun to his temple, the fact that he is going to shoot himself, once you have the jury rejecting that, then the foundation for an accident disappears in the evidence.

MR WALKER:   No, it does not disappear; it is a matter for the jury and the jury required to be focused on it.  In our submission, this is the high importance of accepting, as I think Justice McHugh put to my learned friend, the importance of the jury’s capacity to pick and choose, not to have to be forced into the straitjacket of the way in which the parties put their respective cases.  We accept all the Crown case, all the defence case.  It is a corollary of not having to believe or disbelieve in its entirety the evidence of a witness, that transformed into the case as a whole, bits and pieces can be available.

The accident in this case, leaving aside the belief in suicide and certainly leaving aside the actuality of suicide, so leaving aside emergency and mistake, the evidence in this case included physical contact with the gun in a way which, combined with the evidence of Dr Vallati, left open the possibility of an accidental discharge of the gun.  Your Honours, in our submission, that is an entirely orthodox approach in relation to the role of the jury and it can be illustrated as to the importance for the matter to be put to the jury for them to make up their mind about it in the approach taken, for example, by Justices Gummow and Hayne in Ugle 211 CLR 179, paragraph 31, and in particular, with respect, by Justice Callinan in Murray 211 CLR 235 to 237 and in that passage especially paragraphs 147, 148, 151 and 153.

Finally, there was, several times in my learned friend’s address, a reference to the protection given effectively by the way in which the direction was given on the intention for murder.  During the course of my learned friend’s argument on that, though I think this cannot be attributed to the trial judge, with respect, the way in which my friend phrased that came very close to the effective reversal of onus or, perhaps more accurately, to the failure firmly to place the onus on the Crown by this notion of choosing between versions if the accused’s version is not true or if the accused’s version is right. 

As it happens, the majority in Murray demonstrates why that is an erroneous approach.  It is not a matter of whether the accused can succeed in having the jury accept his version.  It is a matter as to whether it can be excluded as a reasonable possibility by the Crown.  The words by which those two different approaches are expressed have been held as recently as in Murray as a matter of the majority’s decision to be important critical words, the failure to get it right leading to a miscarriage – no question of a proviso at all – and one sees that in particular, for example, though not only of course, in Justice Gaudron’s reasons in Murray at 201 to 202, paragraph 23.

There was one last point.  My learned friend I think refers to paragraph 43 in the reasons of Justices Gummow and Hayne in Murray in relation to their Honours’ position in relation to accident in that case.  It is to be recalled of course that they were there talking about an entirely different substratum of facts, namely the consequences of firing both barrels of a shotgun at the deceased and whether that would have been unlikely or

unforeseen.  We are not talking about a case raised which was requested be put under “accident” of firing the gun at all but rather of striking it, which is a striking difference.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter and we will adjourn for a couple of minutes to reconstitute.

AT 11.58 AM THE MATTER WAS ADJOURNED