Swan v The Queen - [2019] HCATrans 193

[2019] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S34 of 2019

B e t w e e n -
WILLIAM RODNEY SWAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2019, AT 12.48 PM

MS B.J. RIGG, SC: May it please the Court, I appear for the applicant with my learned friend, MR T. QUILTER. (instructed by O’Brien Hudson Solicitors)

MS T.L. SMITH: May it please the Court, I appear with my learned friend, MS B.K. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Ms Rigg.

MS RIGG: Your Honours, this application is about a decision made to not repair a patient’s broken hip. It was that decision that led to the patient’s death four days later and it was that decision that formed an important part of the Crown’s argument at trial that the applicant had legally caused the patient’s death. Despite the importance of that decision, there was no direct evidence about it from those involved in making the decision and the applicant contends there was insufficient evidence to draw inferences factually that were requisite to make a legally viable case on causation for murder. We contend that it is the lack of evidence about this decision that caused the applicant’s trial to miscarry ‑ that is ground 1 – and it is also the lack of evidence that best explains why the Court of Criminal Appeal erred in its task, and that relates to grounds 1 and 2.

The asserted miscarriage of justice in the individual case arises from the error of application of the law in relation to the drawing of inferences on the one hand as compared to speculation or conjecture on the other. It is submitted that this is well illustrated by considering the contradictory approaches to the evidence by the Crown at trial and the Court of Criminal Appeal on appeal and by the Court of Criminal Appeal as identified in relation to ground 2.

So at trial the Crown argued that the patient’s hip could have been repaired to prevent death, but a decision was made not to do so because his quality of life had become so poor following the assault that had occurred eight months earlier. In that regard, the Crown relied particularly upon his incontinence, his reduced mobility, some reduction of cognitive capacity and his method of nourishment. The Crown argued that because the applicant had caused that low quality of life, he was responsible for the patient’s death following a decision not to repair a fractured hip eight months later and in this Court the respondent acknowledges that such an argument was left to the jury.

By contrast, the Court of Criminal Appeal, in dealing with the applicant’s claim that there was no evidence to support that case…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] HCATrans 193
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of Swan for the offence of murder. Swan had been convicted following a trial in the Supreme Court of Victoria. The appeal was heard by Bell and Keane JJ of the Supreme Court of Victoria, Court of Appeal.

The central legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. Specifically, the court had to consider whether there was sufficient evidence of provocation to warrant such a direction, and if so, whether the absence of that direction had led to a miscarriage of justice.

Bell and Keane JJ analysed the evidence presented at trial, particularly the testimony regarding the deceased's conduct towards the appellant. They applied the principles established in cases such as *R v Livermore* and *Osland v The Queen*, which outline the threshold for a provocation defence to be left to the jury. The court determined that while there was evidence of a dispute and some aggressive behaviour by the deceased, it did not reach the level required to establish a defence of provocation in law. Consequently, the trial judge was not obliged to direct the jury on this matter.

The Court of Appeal dismissed the appeal, upholding Swan's conviction for murder.

Orders