Stevens v The Queen

[2005] HCATrans 163

[2005] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B23 of 2004

B e t w e e n -

LAURIE STEVENS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 10.11 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR N.J. MacGROARTY, for the applicant.  (instructed by Robertson O’Gorman)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

KIRBY J:   Yes.  Mr Walker.

MR WALKER:   Your Honours, may I concentrate on the accident issue, the section 23 issue.  This is a case where notwithstanding what had happened on a first occasion, on the occasion of this trial, after argument it was decided by the learned trial judge that there would not be directions on a section 23 accident.

HAYNE J:   Where do I find that?

MR WALKER:   Your Honour finds that only, I regret to say, tangentially in the reference on page 59 of the application book, paragraph [68] in the learned President’s reasons.

HAYNE J:   Yes.  What I could not find is, where in the transcript.

MR WALKER:   Neither could I and I have had it located, your Honour.  It is not in the application book, I regret to tell you.

CALLINAN J:   At page 26 there is a reference to redirections that were sought.

MR WALKER:   Yes.  The argument in question occurred beforehand.  I have seen the transcript of it.  It starts at page 813 of the transcript on the day.

HAYNE J:   It would be nice if we were let into the secret.

MR WALKER:   It would, your Honour.

KIRBY J:   Does Mrs Clare agree that the redirection was sought or that a direction on accident was sought?

MR WALKER:   No.

KIRBY J:   It was a direction, not a redirection?

MR WALKER:   Justice Callinan has raised the fact that it is clear from the record before you there is no redirection sought, but there had been a direction sought.  They rejected it and one should not canvass that.

KIRBY J:   Yes, that is right.

CALLINAN J:   We need to see it, I think, the terms ‑ ‑ ‑

MR WALKER:   Yes, your Honour.

KIRBY J:   Just so that we can allow the argument to advance, is it agreed that a direction was sought on accident?  Mrs Clare, do you agree or cannot you say?

MRS CLARE:   I am sorry, I cannot say. 

KIRBY J:   Very well.  We will get the document.

MR WALKER:   I apologise, your Honours.  At page 813 my learned junior, trial counsel ‑ ‑ ‑

KIRBY J:   Let us press on.  We do not have a lot of time.

MR WALKER:    ‑ ‑ ‑ is recorded as saying there is one further I submit that should be added to that and that is section 23, your Honour, because you have the evidence of Dr Vallati, about which your Honours have read in the application book, the firearms expert, whose observation of the worn sear provided what the learned President described as the evidence which would support, independently of the aftermath statement by my client, the possibility of accident, a matter which ‑ ‑ ‑

KIRBY J:   Yes.  Within an hour your client was saying it was an accident, in the statement, but that is not determinative.  What I would like to know is, is it consistent with the case put at trial for your client as to the handling of the gun by him that he now asserts that it was, in law, an accident under section 23 of the Code?

MR WALKER:   Yes, it is, and this is not a change of position by us.  It is consistent.  It is not a change of position.

KIRBY J:   Is this the “bump” theory?

MR WALKER:   Yes, and the particular mechanism of the old gun, the worn sear, that which in other guns would not have produced the discharge, may have, according to Dr Vallati, produced it in this case, he being the only expert who performed ‑ ‑ ‑

HAYNE J:   In the course of what physical event would this have occurred?

MR WALKER:   The answer to that was a matter for the jury about which on appeal one could not be satisfied that the implicit rejection by the jury of the mistake or the emergency theories necessarily excluded the kind of handling or physical contact with the gun by my client which would have given rise to the possibility of accident.  Your Honour asks me, what was it?  I must, as counsel seeking leave to appeal, as an appellate court had to, refrain from picking from the range of possibilities that which we say would have happened.  That was a matter for the jury.  The whole nub of our complaint is ‑ ‑ ‑

HAYNE J:   But what were the facts before the jury?  I understand about the weapon, but what were the facts before the jury that gave rise to a possibility of accident?  A struggle over the weapon?

MR WALKER:   Yes.  Now, your Honour says “facts”.  I have to be careful because the hypothesis I am addressing on is rejection of the mistake argument, rejection of the emergency argument.  Once I address on that I have to be careful about how tendentiously I put the notion of a struggle, but ‑ ‑ ‑

KIRBY J:   Exactly.  Is that a problem for you?

MR WALKER:   It is a problem, but for a jury – not on appeal unless the Court of Appeal trumps the jury’s possibilities, which it had been denied.  That is really the burden of what was held in the Court of Appeal in the first part of their reasoning.  All three judges said section 23 should have been put to the jury.  That is a paraphrase by me, because what they say is that the case gave rise to section 23 accident.  The learned President says, “It should have been put”, and, indeed, she goes further to say that regardless of what the parties’ position was, the court should also have been putting manslaughter.  I do not want to concentrate on the latter at the moment. 

The other two judges said, yes, section 23 accident was raised, but when it came to the question whether for failure of putting it there was the miscarriage, they disagreed with the learned President on the basis effectively accepting what is now the Crown’s position, and was then the Crown’s position, namely, that the idea of accident raised – it has been held by the three judges – the idea of accident was entirely subsumed – this metaphor of it being a subset of the cases of emergency or reasonable mistake.  In our submission, a moment’s thought will suffice to show that one could not so easily put to one side the possibility that the learned President found persuasive, namely, that there was on the exiguous material that we have to then imagine the jury was left with, having rejected mistake, rejected emergency, there was, of course, the possibility that this was a firearm which, in the course of whatever physical transaction took place, which led to its discharge very close to the man’s forehead – the muzzle very close to the forehead – that Dr Vallati’s evidence – to which the police evidence did not really respond, it was not in the same order of investigation – left accident, and that is a jury question.

HAYNE J:   Does rejection of emergency necessarily entail persuasion beyond reasonable doubt that things did not happen in the fashion described at paragraph [36], page 52, which is the typewritten statement?  Because if that is so, does not that then start you down a slippery slope, which it is hard to arrest?

MR WALKER:   It starts down the slope, but the answer to the first part of the question is, it certainly involves a rejection of the complete assemblage of material in paragraph [36].

HAYNE J:   Yes.

MR WALKER:   It certainly involves that, because had that all been accepted there would have been either a mistake or emergency approach.  It does not at all involve a rejection of everything.  It certainly does not involve a rejection that there was, for example, to use your Honour’s word about which I express the qualifications I have earlier, a “struggle”.  It does not involve that at all.

On any view, for the jury to have found murder, they found that my client – and must have found – that my client touched the gun.  This was not a hypnosis case.  So he touched it.  And, having touched it in some way, given that the material did not include – a matter referred to by Justice Davies – did not include a version from my client of control, as in finger on trigger of the gun, we – by which I mean counsel and appellate judges – are left considering the possibilities with, in our submission, a requirement that there not be a usurpation of the role of the jury in relation to what should have been chosen from those possibilities, the question being, was there something of the minimum quality required in the possibilities not left to the jury which can thus be seen to have produced the orthodox position which the learned President regarded as having been made out and requiring a new trial, namely, deprived of a fair chance of an acquittal.

CALLINAN J:   Mr Walker, could I draw you attention to page 23 of the application book, the second complete paragraph on that page, and just explain to me how you say the trial judge should have fleshed out a direction with respect to accident, having regard to that paragraph?

MR WALKER:   Yes.  I should, in answering the passage at 23, draw to attention two passages that had preceded it, which obviously would have been in the mind of the jury here, in what is at 23.  At page 15, about line 48 or so, under the general introductory remarks concerning, in effect, what the issues were, in light of the larger range of matters generally available at law, your Honours will see at line 49:

authorization, justification and excuse include things like self‑defence, accident –

mentioned in a category which is then very clearly impliedly excluded as being an issue in this case, because:

In this case you are concerned with something that I’ll explain in greater detail later:  emergency, extraordinary emergency.

At page 19 ‑ ‑ ‑

CALLINAN J:   I am sorry, I cannot pick it up.  Did you say 15? 

MR WALKER:   Page 15, about line 49, your Honour.  I am sorry, the line numbers are on the right‑hand side.  Does your Honour see that?

CALLINAN J:   Yes.

MR WALKER:  

Examples of authorization –

et cetera.  And then the expression:

In this case you are concerned with –

So accident has been named in a list that is excluded by referring to emergency.  Before I go further, may I make it clear that, in putting this argument and in answering Justice Callinan’s question, I should be taken as embracing, in this case as in many cases, an overlap of answer between the three relevant categories we raise, accident, emergency and mistake – an overlap, but not a complete congruence.

KIRBY J:   You are not complaining about the direction on emergency, you just say it did not go far enough?

MR WALKER:   No, that is right.  We are saying – that is right – we are saying, as so often in a direction, it is not what is said, it is what does not then follow, either as a companion or an alternative or an explanation, that is the problem.  At the top of page 19 emergency is actually introduced as the subject of the direction and I embrace what Justice Kirby has suggested to me.  Your Honours see how that was understandably put in terms which would not be appropriate for accident, let alone the kind of accident which would be left over if emergency were rejected in this case, and that is the only reason we want it put, to have a broader range of possibility for the jury, see line 20.

HAYNE J:   So the hypothesis we have to consider is rejection beyond reasonable doubt of reaction to attempted suicide?

MR WALKER:   The emergency case as put plus – to make it worse for myself – rejection of the mistake way of putting the same perception.  In other words, the jury was told ‑ ‑ ‑

HAYNE J:   Yes, what is left.

MR WALKER:   If you are satisfied that the deceased was trying to kill himself and if you are satisfied beyond reasonable doubt that what thereafter happened was not an emergency response, then you may convict.  Also, if you are satisfied that he was not trying to commit suicide but that the appearance was such as to reasonably to have given the accused that impression, whereby there was mistake, the defence, with respect, would not be made out if you were still satisfied beyond reasonable doubt that what happened thereafter was not actuated by such a mistake.

Now, that might have been a difficult line of reasoning for the jury, but you can see from a defence point of view why emergency and mistake must go together, because you must embrace the proposition the jury was satisfied he was trying to kill himself or not.  That was very important because of all the evidence the Crown adduced as to why the deceased was a happy, content man, which obviously opened up the possibility of a suicide theory needing a second limb.

HAYNE J:   At this stage has the jury got to the point of rejecting beyond reasonable doubt the proposition that the deceased was attempting suicide?

MR WALKER:   No, we do not know that.

HAYNE J:   From these directions have they not to get to that point?

MR WALKER:   Probably, yes, but it is the word “probably” your Honour, because in theory what I said earlier is an important thing.  You do not get a defence of emergency simply because there is an emergency presented.  There is still a jury evaluation of your conduct, that is, the accused’s conduct.

KIRBY J:   As I understand your case, you say this accident theory softens the decision the jury has to make.  It can reject the suicide, but still find that what happened was not deliberate and wilful, but was something that happened in the course of the physical interchange, because of the nature of this gun.

MR WALKER:   Over a gun of that physical nature, yes.  “Soften” is not the word we would use.

KIRBY J:   I know you would not, but it makes it easier for the jury if they reject suicide, nonetheless, to conclude that this is not wilful murder, which is the verdict they came back with.  Murder.

MR WALKER:   It expands – to use, for once, I hope, appropriately the word – the scenarios which might be the subject of discussion in the jury room.

KIRBY J:   Do not use that word.  Get on with your submission.

MR WALKER:   They may imagine events in another way not available to them if they have rejected emergency, rejected mistake, the companion of emergency.  Accident would have left them with another idea to consider, an idea that the President thought was available and ‑ ‑ ‑

CALLINAN J:   Mr Walker, if I can just ask you a question and if you can clear it up for me.  In paragraph [68] on page 59, the President seems to have thought that accident required, necessarily, the consideration of section 289.  That is not necessarily right.

MR WALKER:   No.  With respect to her Honour, it must be as follows, that in the circumstances of this case, bearing in mind that the accident in question concerned something which was self‑evidently dangerous, namely, the gun, that in this case her Honour must be understood as saying it would have given rise to the possibility of handling ‑ ‑ ‑

CALLINAN J:   It may have done.  You could have had accident ‑ ‑ ‑

MR WALKER:   Your Honour, with respect, I am not resisting your Honour’s observation.

CALLINAN J:   It just does not seem to follow at all that you have to consider section 289.  This may be in your favour, in fact.

MR WALKER:   Quite.  I started by saying I am concentrating on section 23 because it is the chance of an acquittal, not merely the chance of manslaughter, that is to the forefront of our grievance concerning what happened both at trial and in the Court of Appeal.

CALLINAN J:   You see, I think Justice Davies discussed 289, too, did he not?  He pointed at it again in a way that was adverse to you, because he seems to have assumed that you could not rely upon section 23 unless somehow your client could be shown to have been in control of the gun in a way in which it would have been discussed under section 289.

MR WALKER:   Yes, and, in our submission, with great respect, that paid insufficient regard to the stout resistance, as it happens, by my learned predecessor in brief to the notion of manslaughter introduced by the President during argument in the Court of Appeal, a resistance which, bearing in mind the operation of section 23 which the learned President pointed out and as to it being raised to be able to agree with was an understandable resistance.  It did not have to be manslaughter as the best result for my client if the jury were persuaded of accident, because it did not follow that the jury would be persuaded, on the evidence that led them to that accident, this gun, some kind of scuffle ‑ ‑ ‑

KIRBY J:   You would be surprised how many cases where counsel have resisted vigorously manslaughter going to the jury at trial.  They come up here and they try to press manslaughter on us.  It happens all the time.

MR WALKER:   I might…..

CALLINAN J:   You did not need that. 

MR WALKER:   No. 

CALLINAN J:   You could have looked just at section 23 discretely.

MR WALKER:   Yes.

CALLINAN J:   But, Mr Walker, I find it hard to understand all of this unless I see the application that was made for directions which we have been promised.

KIRBY J:   Can you read it on to the record, please?

MR WALKER:   Yes.  It starts at 813.  My learned friend has a copy.  I will try and skip so as to take your Honours to the material bits.

HAYNE J:   This really is unsatisfactory, Mr Walker.

MR WALKER:   Yes, your Honour.

HAYNE J:   If this is at the heart of the case, I want to read it.  It is unsatisfactory that the application book comes forward in this form.

MR WALKER:   Yes.

KIRBY J:   Perhaps that could be photocopied by your instructing solicitor whilst Mrs Clare is addressing us and we will have a look at that before the case is over.

MR WALKER:   Apparently, it was the subject of an attempt to include it in the book, your Honour.

KIRBY J:   I am sorry, you did endeavour to put it before the Court, did you?

MR WALKER:   Yes.

CALLINAN J:   Who resisted it?

MR WALKER:   I do not know, your Honour.  I have agreed and still agree with Justice Hayne’s observation.

KIRBY J:   Well, let us move on.  I think if you get it photocopied quickly – there must be somewhere here where that could be done.

MR WALKER:   I intend to get photocopied 813 to 817.

CALLINAN J:   They can be photostatted in my chambers and be done straight away.

MR WALKER:   I hope everything that I need is here, your Honours.  Page 813, about line 25, the passage I had referred to earlier, my learned junior, section 23, the evidence of Dr Vallati, and then line 45 or so:

I’m saying this further proposition does arise on the evidence.

His Honour’s response ‑ ‑ ‑

KIRBY J:   An accidental event.  The language of the statute is “an event that is an accident” or something like that, is it not?

MR WALKER:   Yes, your Honour.

CALLINAN J:   Did his Honour give a judgment about this or just ‑ ‑ ‑

MR WALKER:   It falls out in the debate – I think the answer is yes, but in the perhaps familiar way of the reasons appearing through colloquy with counsel.

KIRBY J:  

an event that occurs by accident.

That is the language of section 23(1).

MR WALKER:   Yes.

KIRBY J:   Where does his Honour give his reasons for rejecting that direction?

MR WALKER:   The conclusion is at 817, 30:

I am persuaded by Mr Feeney’s submissions –

which drives one back, as I suggested in answer to Justice Callinan, to the reasoning your Honours – I see the time.

KIRBY J:   This is important, but it is not ultimately determinative.  There have been cases where the Court has examined matters where it concludes that the direction ought to have been given, even though it was not raised, but you say, a fortiori, here, it was raised.

MR WALKER:   It was unquestionably raised.

CALLINAN J:   His Honour seems to say at page 815, and admittedly in the context of this case, but he seems to be saying at about line 48, if you have extraordinary emergency you cannot have accident.

MR WALKER:   Yes, and that is wrong.

CALLINAN J:   It was plainly wrong.

MR WALKER:   The Court of Appeal thought that was wrong.

CALLINAN J:   That seems to be the basis of his Honour’s reasoning.

MR WALKER:   There is another basis which seems, if one sees an acceptance of Mr Feeney’s arguments – it seems to turn on if the Crown makes out the intention, then accident has gone, but, of course, that is no answer to the proposition that if we show accident, you are not going to show requisite intention, or if we raise accident successfully, which you do not negative, then you will not have made out intention.

So there was a kind of conclusion or assumption involved in the reasons which certainly is not relied upon in the Court of Appeal, that is, the trial judge’s manner of rejecting the section 23 issue was not adopted ‑ ‑ ‑

HAYNE J:   An important element in that is that 813 to 814, line 55 through to about line 5, where his Honour appears to have treated the case as turning upon, in this respect, a single set of factual issues and that to introduce accident was to muddy an otherwise comparatively simple question that was confronting the jury.

MR WALKER:   Yes.  But the Crown’s muddying of the waters, of course, is the defence is just being a reasonable possibility.

HAYNE J:   Just so, but hence my question to you about what arises on the facts.

MR WALKER:   Yes.  In our submission, it could never have been seen to be the case that this was inevitably a complete, satisfactorily ‑ ‑ ‑

KIRBY J:   Yes.  Well, we do not want a peroration.  We know what you say.  Yes, Mrs Clare.

MRS CLARE:   May it please the Court.  

KIRBY J:   It does seem that the direction was sought and rejected and for a reason which is not very persuasive.  Indeed, it appears wrong.

MRS CLARE:   If a literal meaning is taken of what his Honour said, then, yes, I agree it would be wrong, but it is argument in the context of the facts of this case.  That is the way it ought to be seen, in my submission.  His Honour left emergency and mistake in combination.

KIRBY J:   Yes, but why is what I put to Mr Walker not something that was available to the accused?  In a sense it gives the jury a soft option.  They might reject the theory of suicide and emergency and yet consider that because of the nature of this gun, according to Dr Vallati, your witness in ballistics, that what had happened was not murder but an accident.  That was open, on the ballistic evidence.

MRS CLARE:   That would be the first limb of section 23, which is an unintended act or an involuntary act as opposed to the second limb – I am sorry, I have misunderstood.  I thought it was being opposed.  In relation to the first limb, that is, that it was an unintended act, if it was clearly subsumed in the way his Honour left the defence to the jury, because his Honour said, in effect, “Unless you can exclude the defence version, the applicant’s version, beyond reasonable doubt, you must acquit him”.  So if it follows that to move on to any next level of considering a conviction ‑ ‑ ‑

KIRBY J:   Yes, but the problem with that is that the jury obviously did not accept the suicide theory and the emergency, but that still left a potential evaluation and view of the facts which the accused asked to be put to the jury and which was not.

MRS CLARE:   His Honour told the jury, if they rejected the defence version, they still needed to go to the rest of the evidence to consider whether or not guilt was proved.

KIRBY J:   Yes, but without benefit of instruction on accident under the Code, which perhaps – certainly factually significantly – the accused within an hour of the event was telling the emergency number, that was recorded, “I would call this an accident”.

MRS CLARE:   I am going to call this accident for the moment.

KIRBY J:   Yes, but he had not had time to have lawyers, to have advice, to have all sorts of clever people telling him how the case could be presented or might be presented.  This was his spontaneous statement, “accident”.  It is powerful rhetorical stuff.

MRS CLARE:   If one looks at the case without the applicant’s version, one is left with the solid inference that it was the applicant himself who had the gun.

CALLINAN J:   But the law requires, does it not, that judges put each distinct event, each defence, that is available on the evidence.  That is the judicial obligation, is it not?  That may require telling the jury a number of different labels and the categories and acts which will fall within those labels.

MRS CLARE:   Yes.

CALLINAN J:   The judge cannot really say, “Well, look, I’m not going to address on X, Y and Z because this case looks as if it is subsumed within category K”.

MRS CLARE:   His Honour put it, yes, as emergency to the jury and that ‑ ‑ ‑

CALLINAN J:   Mrs Clare, if you look at page 816 his Honour seems to accept at the bottom of that page that this could be a case of accident.  There is no doubt about that.  He gives the example…..Then his Honour goes on to accept the submission by your predecessor at the trial – I mean the counsel who was the prosecutor – that the jury might be confused because his Honour would then have to give them a direction in accordance with a Queensland Court of Appeal case.  Now, with all due respect, that does not seem to me to be a proper basis for refusing to direct on accident.

MRS CLARE:   Your Honour is there still talking, as I understand it, in the context of the applicant’s version, and there are two different levels to this argument, but if we go back to the applicant’s version and how it was left to the jury, that is, only as emergency, in my submission, there could be no miscarriage to the defence.  No disadvantage.

CALLINAN J:   The judge might have said, “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.

MRS CLARE:   But unless there is some magic in the words themselves ‑ ‑ ‑

CALLINAN J:   There may be.  It is another label.  The law thinks it is a label.  It uses it.

MRS CLARE:   Yes, but his Honour did not go through the elements of the offence and say to the jury, “Well, you make an assessment of the various components of the applicant’s version”.  He simply said, “You must acquit this man unless you have excluded beyond reasonable doubt his version”.  The label of emergency was the most natural fit for what is described, that is, an intervention in an attempted suicide, and nothing could be added by adding in accident in that way, in my respectful submission.  The argument could only succeed if accident was raised outside of the appellant’s version, because the jury must be taken to have rejected his version to have convicted at all.

HAYNE J:   It comes, I think, the argument, to this, be it right or wrong.  Alford v Magee tells us it is the obligation of the judge to instruct the jury on the issues in the case.  There was a factual issue in this case.  The Crown had to establish beyond reasonable doubt that the events did not occur in the fashion described by the accused in his written statement.  The obligation of the judge is then to tell them so much of the law as they need to understand to decide those facts.  It seems to me you are driven to the point of saying that the factual issue at stake was sufficiently encompassed by emergency and mistake and that the decision on that necessarily subsumed accident.  Now, that is the argument.  It is good or it is bad.

MRS CLARE:   That is my submission and, in my submission, it was the simplest and clearest way of putting it to the jury.  Everybody must have understood what the issue was.

KIRBY J:   But it did not really forensically address two elements:  one, the statement made within an hour of the homicide by the accused himself calling it an accident and, two, the evidence of Dr Vallati, to which the President referred, which gave a foundation for saying, “Well, you might come to the view that this is an ex post attempt to give himself an exculpation and you might reject that, but still, if this is a gun liable on bumping to go off, then you have to consider whether it is an accident, because it is a very serious matter to find a person guilty of murder”.

MRS CLARE:   Addressing the first part, which is the applicant’s own description of accident, that, in my submission, is still consistent with the way in which ordinary people would conceive of the way in ‑ ‑ ‑

KIRBY J:   I just say it is a forensic point.  He says it is an accident and then you get directions on accident.  It is not determinative, but you can see how something could be made of it.  Counsel obviously wanted to have that something and ask for it.

MRS CLARE:   Yes.

KIRBY J:   And on a view that is incorrect the judge refused to put it – or appears to be incorrect.

MRS CLARE:   My argument is that that taken in the context of the trial and the way in which all of those things were subsumed in what the jury must have understood as an emergency situation, there is no doubt in this case about what the defence was and what it meant and there was no doubt at the end of the day that if what the applicant had described happened, then he could not be guilty.  It is not a case like Gilbert or Murray, where there is some criminal conduct at the heart of what was, even on the applicant’s version – on this applicant’s version, he was completely without blame.  He had simply tried to be a rescuer.

KIRBY J:   Yes, but the jury might have been suspicious of him, because his daughter had had an affair with the deceased.  There was a little poison in the well there.

MRS CLARE:   But if one takes out the…..version, one is left with a contact wound to the forehead with a rifle while a man is seated in front of a desk.  The inference that then remains is that it was the applicant, not the deceased, who had the gun.  When you get to that point, certainly the second limb of accident, unforeseen consequences, cannot apply, because on no view, factually, could anyone conclude that it was not foreseeable that putting a loaded gun to a man’s head could in fact be fatal.

KIRBY J:   Can you help us also on the question of manslaughter?  It is rather tedious to have these cases where counsel have vigorously resisted it at trial and then they come up here and say it ought to have been put.  Is that bound up in the accident question?

MRS CLARE:   In part, but the majority ‑ ‑ ‑

KIRBY J:   In other words, if the applicant got up on accident, was the judge then, on that hypothesis, bound to put a manslaughter direction to the jury?

MRS CLARE:   He would have to put – if it depended upon the applicant’s first ‑ ‑ ‑

KIRBY J:   I am just thinking whether the Court might grant special leave limited to the accident point.

CALLINAN J:   Mrs Clare, on the applicant’s version, section 289 could not possibly be invoked, could it?

MRS CLARE:   No, as the majority said ‑ ‑ ‑

CALLINAN J:   So the answer to Justice Kirby’s question really is, it is either murder or nothing in this case.

MRS CLARE:   Yes.

CALLINAN J:   And it is either accident or nothing, effectively, for the appeal.  That is your submission.

MRS CLARE:   That would be my submission.  On no version of the facts ‑ ‑ ‑

KIRBY J:   Subject to hearing Mr Walker, that is what I would be inclined to have thought.

MRS CLARE:   Yes.  But if we go back to the Vallati point in relation to what is left once you exclude the defence explanation, we have a gun – the state of the forensic evidence was that there was a gun with a safe trigger pressure.  Other witnesses have used it.  The other witnesses who gave evidence who had used it had never noticed it to be unsafe or to have any problem with it.  It did not misfire when hit with a hammer.  It did discharge when dropped on its butt or when hit on, I think, 20 per cent of occasions when struck vertically at the trigger, but it was not an outrageously dangerous gun.  It had some aspects of it which made it less than an ideal weapon, but, without some further evidence of an intervening act that took it out of the control of the applicant, there was no evidence to suggest that there was an involuntary act. 

Your Honour Justice Hayne said in Murray v The Queen (2002) 211 CLR 193 – the Court will recall that was a case where a shooting occurred not as close as this, but quite proximate to the deceased. Accident was left in that case in terms of the second and the unintended consequences. Your Honour Justice Hayne said that it was not necessary in that case, because without the – I am sorry ‑ ‑ ‑

KIRBY J:   Murray was one of the Western Australian cases, was it?

MRS CLARE:   No, it was a Queensland case.

KIRBY J:   Was it?

MRS CLARE:   Yes.  At page 208 of the joint judgment of Justices Gummow and Hayne, it was accepted that in that case there could be no live issue at trial that the fatal consequences of firing both barrels of a shotgun to the deceased could have been unlikely or unforseen.  Similarly, in Murray, there was no specific direction about an involuntary act – that is the first limb of section 23 – but it was left in the context of the defence case, which is similar to this one.  That was held not to be a misdirection, that it was adequately – the direction in relation to a willed act was adequately encompassed by mixing it in with the appellant’s version.  The error in Murray was the way in which there was confusion about the onus of proof through that process.  But there is no such problem here, because his Honour was very clear in emphasising to the jury that it was proof for the Crown not the ‑ ‑ ‑

KIRBY J:   I may be wrong, but was it not the fact that in that case there was not a request for the direction on accident?  It is easy to confuse these cases.

MRS CLARE:   My recollection was that there was a request for accident and the complaint was that the second limb of accident was left and not the first.

KIRBY J:   Yes, very well.

MRS CLARE:   So, it is not dissimilar to this one at all, and in fact this case perhaps is stronger, because the firing of the weapon was a contact wound at very close range.

CALLINAN J:   In Murray the Crown conceded that accident was open.

MRS CLARE:   Yes, but that it was adequately covered in an approach to the directions as in this case, that is, without specifically dealing with it as a formal direction of willed act, but dealing with it in a factual sense, which is what happened here.

KIRBY J:   Yes, thank you.  Anything in reply?  What do you say concerning the suggestion ‑ ‑ ‑

MR WALKER:   It is as my learned friend says.  That is, if, in a case like the present, there were eventually, following an appeal, a new trial, then no doubt it would be for those conducting and presiding over the new trial to determine whether 289 might arise, but, for the reasons Justice Callinan has touched on and I think Justice Hayne has touched on, as the record stands from the second trial in this case, which is the one from which we seek special leave to appeal ‑ ‑ ‑

KIRBY J:   So you confine yourself to the accident point?

MR WALKER:   That is why I concentrate on it ‑ ‑ ‑

KIRBY J:   On the grounds of the draft notice of appeal, is that 2(c) or 2(b) and (c)?  It is on page 70.

MR WALKER:   2(b).

KIRBY J:   2(b).  What about (c)?

MR WALKER:   It goes as a companion, yes, your Honour.

KIRBY J:   It is really the same issue, but do you wish to have both?

MR WALKER:   Yes.

KIRBY J:   Yes, very well.  There will be a grant of special leave in this matter.  I assume that this is also a matter that would take less than a day?

MR WALKER:   Yes, your Honour.  May it please the Court.

KIRBY J:   The Court will now adjourn in order to reconstitute.

AT 10.55 AM THE MATTER WAS CONCLUDED