Stuart v The Queen

[2005] HCATrans 787

[2005] HCATrans 787

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B45 of 2005

B e t w e e n -

CRAIG EDWARD STUART

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 12.03 PM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear for the applicant.  (instructed by Welldon Zande & Reddy)

MR M.J. COPLEY:   May it please the Court, I appear for the respondent.   (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Thank you.

MR GLYNN:   Your Honours, the applicant in this case was convicted of unlawfully doing grievous bodily harm.  The application is an application which is directly and specifically to the justice of the case in the individual case in that it is not suggested that the law was wrongly interpreted by the court but, rather, that the law was incorrectly applied by the court by virtue of its view of the evidence.

This was a case in which there were two distinct bodies of evidence, the evidence given on behalf of the prosecution upon which a conviction was clearly justified and accepted by the jury that there could be no complaint about the outcome.  On the other hand, there was evidence also given by the defence, firstly in the form of evidence by the applicant and some of his companions and also there was evidence of an interview that the applicant had with police officers on the evening of the incident.

In paragraph [6] of the judgment of the Court of Appeal at page 68 of the application book is a short summary of the applicant’s interview by the police.  In paragraph [7] is a short summary of the evidence of Mr Stuart at the trial.  Paragraph [7] says:

Mr Stuart gave and called evidence.  He said he intervened in a confrontation between one of his companions and Mr Mitchell.  While he was trying to separate them, Mr Mitchell grabbed him and pushed him backwards, forcing his legs against a seat and his upper body over a railing with concrete below.  Mr Mitchell held him in this position with his arm on Mr Stuart’s chest.  Mr Stuart struck out with a single blow not aimed at any particular point.  The blow struck Mr Mitchell in the mouth.  He said: “I just swung and punched him.”  He did not aim for Mr Mitchell’s mouth.  Mr Stuart was shocked when he saw Mr Mitchell bleeding from the mouth and by Mr Mitchell’s injuries.

There was also evidence that the complainant said that Mr Stuart appeared to be shocked when he saw the injuries. The sole point taken before the Court of Appeal was that the learned trial judge had incorrectly directed the jury in respect of accident pursuant to section 23 of the Criminal Code.

GUMMOW J:   Yes.  Now, it is said against you that paragraph 2 of the applicant’s argument has to be understood as involving a concession that “accident” could not arise.  I am reading from page 90.  It said:

if the jury accepted the complainant’s version of the incident, the grievous bodily harm was unlawful.  The blow was a willed act, not struck in self defence and the event did not occur by accident.

MR GLYNN:   What was said in paragraph 2 of my summary was that on the complainant’s version “accident” could not arise and that is accepted because on the complainant’s version the blow was struck without warning from the side when he was not even looking.  But the issue is whether “accident” could apply on the basis if the jury did not reject the evidence of Mr Stuart.

GUMMOW J:   Yes.

MR GLYNN:   Your Honours, the court at paragraph [22] on page 73 of the application book said that:

It is possible a jury may have interpreted the direction in the way suggested by Mr Glynn, although the absence of any request for a redirection suggests that at least counsel at trial did not. 

The court then indicates that they had listened to the State Reporting Bureau’s tapes, but were not aided by those and then they said:

It follows that the jury may have reached their verdict believing the prosecution need only establish beyond reasonable doubt that when Mr Stuart did the deliberate, willed act causing grievous bodily harm, injury of any kind was foreseeable (rather than injury of the kind in fact suffered).

So that was the basis upon which the court found there had been error.

GUMMOW J:   Yes, it then went on to apply the proviso, I see.

MR GLYNN:   And that is the subject of the complaint, your Honour.

GUMMOW J:   Yes. 

KIRBY J:   Yes, but, Mr Glynn, you come here often and you know what we can do and do and unlike the other two earlier cases where special leave has been granted, there is no issue of general principle here.  This is just the application of the Code to the evidence and, as this Court said once in relation to tax appeals that they ordinarily have to stop at the Full Court of the Federal Court, maybe we need to make it clear that ordinarily criminal appeals have to stop at the Courts of Criminal Appeal and Courts of Appeal, otherwise we just turn ourselves into the super Court of Criminal Appeal of Australia and that is not our function.

MR GLYNN:   Your Honour, I accept what you say and I think it is understood by the profession that ordinarily matters do end.  But where it is submitted that there has been a clear ‑ ‑ ‑

KIRBY J:   Well, that did not occur to seven cases in our eight cases in our list today - nine cases, I think.

MR GLYNN:   Out of, your Honour, a very large number of ‑ ‑ ‑

KIRBY J:   What is the standout point in this case?  It just seems a very routine ‑ ‑ ‑

MR GLYNN:   The standout point, your Honour, is that the Court in reaching the decision that the proviso could be applied, relied upon a direction given by the judge about punching, which is set out in paragraph [24] which was said to be:

Immediately before the ambiguous direction –

That is at page 73 of the application book, in which the trial judge had talked about a conscious and deliberate act of punching.  The court in reaching the decision to apply the proviso said this, starting at about five lines from the bottom of page 73 of the application book in paragraph [25]:

In those circumstances, the jury would have inevitably concluded that the evidence established beyond reasonable doubt that an ordinary person in Mr Stuart’s position would have foreseen that such a punch to the mouth –

Now, it is those added words which caused the court to go wrong, because the original direction was not about a punch to the mouth but, rather, a deliberate punch.  If it was a deliberate punch to the mouth ‑ ‑ ‑

KIRBY J:   Yes, but it was in the direction of the mouth, was it not, and the misfortune of your client was that the victim had braces and had just been to the dentist and was in a vulnerable position, but that is the risk you take when you punch people.

MR GLYNN:   Your Honour, the evidence that was given by Mr Mitchell was not even that it was in the direction of the mouth.  The evidence on behalf of the defence was that the blow struck Mr Mitchell in the mouth, but his evidence was that he struck out with a single blow not aimed at any particular point.  He said “I just swung and punched him.”  That is in paragraph [7] at page 69 and that is contained in the judgment taken from the record before the court.  So that the court has added the words ‑ ‑ ‑

KIRBY J:   Well, it seems as though you are asking the High Court of Australia, the final appellate and constitutional Court of the nation, to be sorting out a very specific issue of where a particular blow on a particular occasion was directed and that is just not our function.  We have to send that message out clearly it seems to me.

MR GLYNN:   Your Honour, all I can say is that I rely ‑ ‑ ‑

KIRBY J:   We had a big case yesterday on the proviso and the issue was a serious legal question and of general application.  This case does not seem to be a serious – there is no legal question and there is no issue of general application.  It is a fact case.

MR GLYNN:   I accept both of those points, your Honour.

KIRBY J:   There does not seem, if you look at it, to be a miscarriage of justice because a person lashes out and has a go and the consequence in this case was a serious injury and another young person lost teeth, suffered injuries to his gums, he happened to be vulnerable, but that is what you get if you start a brawl.

MR GLYNN:   There is no complaint about the vulnerability.  The complaint is about the way in which the court applied the proviso.  I do not think I ‑ ‑ ‑

KIRBY J:   Where is the miscarriage of justice in the application’s proviso?  How do you express it?

MR GLYNN:   The miscarriage of justice is in that the court has interpreted the evidence in a way where the evidence was not in fact before the court.  Had they not applied the proviso, then a jury properly instructed, which they were not, would have had the opportunity to make a decision as to whether in fact the punch was aimed at the mouth.  That is the issue, your Honour.  I cannot take it any further than that.

KIRBY J:   Yes.  We have to do 70 cases a year for this whole nation and a number of them have to be done because they are constitutional.  It just does not leap out, if I can say so respectfully.  Anyway, you understand where I am coming from.

MR GLYNN:   I understand your Honour’s position.  Thank you, your Honour.

KIRBY J:   Yes, thank you, Mr Glynn.

GUMMOW J:   Thank you, Mr Glynn.  We do not need to call on you, Mr Copley.

It is not suggested that this case, if an appeal were granted, would involve any significant point of law, but the applicant complains of a miscarriage of justice.  We are not convinced that such a miscarriage occurred.  What was involved was no more than the application of the Criminal Code (Qld) to the evidence in the case and we do not consider that there are reasonable prospects of success of a different outcome to that of the Court of Appeal were special leave to be granted. Accordingly, special leave is refused.

The Court will adjourn to reconstitute.

AT 12.15 PM THE MATTER WAS CONCLUDED