The Queen v Hooper P101/2000

[2001] HCATrans 561

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P101 of 2000

B e t w e e n -

THE QUEEN

Applicant

and

MURRAY REO HOOPER

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 10.50 AM

Copyright in the High Court of Australia

MR D. DEMPSTER:   May it please your Honours, with my learned friend, MS J.A. GIRDHAM, I represent the Crown as applicant.  (instructed by Director of Public Prosecutions (Western Australia))

MR R.W. CANNON:   May it please, your Honours, I appear for the respondent.  (instructed by Lisa Boston)

KIRBY J:   Yes.  Well, what do you say?  One always embarks upon the Code with a certain circumspection.  Justice Brennan told me that non-Code State lawyers have to be very, very careful dealing with the Code.

MR DEMPSTER:   Your Honours, death is very different from endangerment of life; a foreseeable death remains also different from a foreseeable endangerment of life, but the distinction may become blurred and we say, respectfully, that the distinction did become blurred in the Court of Criminal Appeal.  Perhaps I could illustrate that by taking your Honours to page 38 of the application book at paragraph 40.  There have, of course, been an acquittal of the principal charge of manslaughter but, nonetheless, a conviction of the alternative count of doing grievous bodily harm and his Honour the Chief Justice said there:

a verdict of not guilty of manslaughter would necessarily involve a finding by the jury that the actions of the accused were of a kind that it was not reasonably foreseeable that they would cause or be likely to cause death.

And it is the insertion of that phrase “be likely to cause” which we say demonstrates the error respectfully, and we say that because, to establish manslaughter, which is an unlawful killing, there must be an injury or injuries which caused death.  Injuries which are likely to cause death cannot constitute manslaughter.  The difficulty is, having defined manslaughter or taken that view of the acquittal, their Honours - all their Honours take the same approach, in different ways I can demonstrate to your Honours - then applied that so as to exclude the first limb of the definition of “grievous bodily harm” as involving an:

injury of such a nature as to endanger, or be likely to endanger life –

and, in that way, we say the distinction has been blurred and the basis of the Court of Criminal Appeal decision, of course, was that the verdicts will differ inconsistent.

HAYNE J:   At the moment there is to be a retrial?

MR DEMPSTER:   That is the position, yes.

HAYNE J:   On that retrial, the principles that are to be applied are to be identified, are they not, from, amongst other decisions Mamote‑Kulang and Kaporonovski, is that right?

MR DEMPSTER:   That is correct, your Honour.

HAYNE J:   And I take it you accept, do you, that the principles that are to be applied have been authoritatively stated by this Court in those cases?

MR DEMPSTER:   Yes, your Honour.

HAYNE J:   Thus if we were to give leave, the only question that would fall for decision is a question about the particularity of the charge that was given to the jury in this case, not the question of principle, for the hypothesis is that Mamote-Kulang and Kaporonovski state principle.

MR DEMPSTER:   There is no argument with those principles.  On a retrial, of course, the Crown would not be, nor indeed would anyone be, able to refer to the first limb of the definition of “grievous bodily harm” and why the Crown is particular sensitive is that, of course, that concept of grievous bodily harm appears throughout the Criminal Code.  It is an offence in itself, grievous bodily harm simpliciter.  There is also the offence of doing grievous bodily harm with intent to do grievous bodily harm.  It is part of the definition of “murder”.  There are other offences, assault with intent to do grievous bodily harm and there are ‑ ‑ ‑

HAYNE J:   But so far as this accused is concerned, he is to go back and stand his trial again, according to accepted principle, is he not?

MR DEMPSTER:   That is correct, your Honour.

HAYNE J:   Why should we take on this case on the application of the prosecution?

MR DEMPSTER:   In the sense that the Court of Criminal Appeal did not record an acquittal, but rather ordered a retrial, we say that strengthens the case for special leave, because if the decision of the Court of Criminal Appeal were to be reversed, then clearly the verdict of the jury would be reinstated and the need for a retrial would be obviated and the accused could be relieved of that.

HAYNE J:   But we would get to that answer only by examining the particularity of the charge in the case according to known and accepted principles.  The result we now have is that there is to be a retrial where, one is to assume, the retrial will be conducted according to those known and accepted principles.  Why should we intervene at the suit of the prosecution, simply to conduct a review of the adequacy of a charge in a particular trial when there is to be a retrial?

MR DEMPSTER:   This was an unanimous decision.

HAYNE J:   But does it establish some principle that we should deal with for the better administration of criminal law in this State?

MR DEMPSTER:   We say that my first error - and given that it is an unanimous decision involving the Chief Justice, it may be liable to lead to further error.  It involves the concept of accident, which if, of course, very regularly employed in these courts as, quite properly, a defence, and your Honour has heard an incidence earlier this morning.

HAYNE J:   But we have got 30 or more years of principle established in Kaporonovski and the like, have we not, about what those provisions mean?

MR DEMPSTER:   The danger is that when there is such a misinterpretation, and what we say is a very clear error, that that may lead to further error, that is the difficulty.

KIRBY J:   But it is a question of conserving the intervention of this Court, you see.  You are really asking us, where there is going to be a retrial, to go back and scrutinise reasons of the Court of Criminal Appeal, whereas normally this Court would not do that unless there is some governing effect formulated in an order which is challenged.  You do not challenge the order of the retrial; you want the retrial, you will conduct the retrial, the retrial will be conducted in accordance with the principles which you agree govern it and, if at that stage if there is a conviction, and the principles in an application to this case have led to a consequence, then that is the time for this matter to come to this Court.

MR DEMPSTER:   If special leave were granted in the appeal in this jurisdiction were to be allowed, there would be no retrial.

KIRBY J:   But you seek a retrial.

MR DEMPSTER:   No, your Honour.

KIRBY J:   You say that the verdict would be restored.

MR DEMPSTER:   If the decision of the Court of Criminal Appeal were set aside, the jury verdict for conviction of grievous bodily harm would be enlivened, there would be no retrial, and that strengthens the case for special leave.

HAYNE J:   But the fundamental proposition is that the prosecution seeks to maintain a conviction in circumstances where there is an order for retrial, which will be conducted on known and accepted principles.  What you seek to avoid really is the cost of the retrial, and that is the nub of it, is it not?

MR DEMPSTER:   With respect, your Honour, when an unanimous decision is given in this way, it is capable, if there is error, and if your Honours accept there is error, it does ‑ ‑ ‑

HAYNE J:   You are not suggesting we will not hear about it, are you, Mr Dempster?

MR DEMPSTER:   It has a propensity to affect other matters; it affects an issue which appears day in and day out in criminal courts in this State.

KIRBY J:   Yes, I would not have thought these are peculiar factual circumstances where a blow has led to an unwanted or perhaps unforeseen consequence.

MR DEMPSTER:   And that is precisely the concern.  It is a matter which may lead to an error becoming widespread rather than restricted.

KIRBY J:   Yes, very well.  What do you say, Mr Cannon?

MR CANNON:   This case, your Honour, does not raise any difficulties of general concern.  The decision of the Court of Criminal Appeal was based on the special circumstances of the case.  If you look at the indictment you can see count 1 concerns unintended manslaughter, that manslaughter is such; the second count of unlawfully causing grievous bodily harm was an alternative verdict; and the third case of assault causing bodily harm, again with an alternative to the grievous bodily harm.  Now the Court of Criminal Appeal found specifically that we had raised the defence of accident right from the very beginning.  We made no admissions on law, but we indicated that causation, as far as count 1 was concerned, was not in dispute.

Now the basic difficulty arose out of the situation that causation was not divided up, as has become the practice now into factual causation, which is a scientific inquiry as compared then, when they get over the question of factual causation, to proceed to legal causation, which is a moral inquiry as distinct from a scientific inquiry looking for blameworthiness and, of course, in respect of blameworthiness in unintended consequences, you are faced with the situation of predicability or the ordinary or reasonable man’s ability to foresee.  In this case in the opening address the Crown Prosecutor presented the case of manslaughter - the event in manslaughter was the death - and did not indicate what was involved in respect of count 2 and 3.  As the case proceeded, it was quite obvious that causation in the factual sense, as far as the event of death was concerned, was not in dispute in any way whatsoever; it was essentially a question of accident.

Now on the alternative count, although the facts were admitted in the sense of causation in fact was not in dispute.  You were then faced with the definition of “grievous bodily harm”, which, as pointed out by the judges, divided into two parts, and you have in the second part the distinction of:

such a nature as to endanger life –

that is excluded from the issue of foresight, because that question of foresight is related to the second concepts, namely legal causation.

But you have the word permanency involved in the “grievous bodily harm” - - -

KIRBY J:   Well that is permanency for the duration of the life.  It may be a very short duration.

MR DEMPSTER:   That was extremely short.  He was injured on 25 September 1999 and that occurred at approximately 10 pm and he was dead within 24 hours.

HAYNE J:   Yes, so that there were ‑ ‑ ‑

KIRBY J:   But you would not be seeking to plead autrefois quit, would you?

MR DEMPSTER:   No, your Honour.

KIRBY J:   So you accept that the second count is still a viable count in law?

MR CANNON:   It is still a viable count in law.

KIRBY J:   You have to meet it before the jury.

MR CANNON:   We would have to meet it again before the jury, but where the trial judge has misdirected himself on the relevant events relating to accident, it was quite obvious that the Court of Criminal Appeal was not able to accept that the jury had been properly directed in respect of accident and indicated that the jury may well have been mislead and, on that basis, they proceeded to order a retrial.  They did not consider the second ground of appeal, namely whether there was any evidence of grievous bodily harm.  Personal injury is part of the first aspect of causation.  As far as the second count goes, it was never in any dispute that the causation relating to the personal injury of the brain swelling after striking the head existed, and the only issue may well have been a minor issue on permanency and that may or may not have gone anywhere.

KIRBY J:   Well, it was permanent for the duration.

MR CANNON:   Permanent for the duration.

KIRBY J:   For a short duration.

MR CANNON:   Yes.  The doctors called, of course, did not add anything to the second concept of causation, namely legal causation.  Both doctors were specialist pathologists who indicated they only dealt in dead bodies or serious brain damage and that if we had to get any evidence out of them on foreseeability, we would have to consult the casualty wards which have a steady input of clients who have been struck and fallen down, drunk, and hit their heads and have recovered.  So that on the foresight question, the doctors called could only assist on the one matter that was not in dispute, namely factual causation.

The judge bundled all the facts together in discussing the event in relation to count 1.  The event was the death, but he included in their consideration all the factual matters, namely the first blow, the falling down, the striking head, the swelling of the brain and the consequent death resulting from the swelling of the brain.  As Justice Ipp pointed out at page 40, had the Crown indicted in respect of the count of grievous bodily harm as a separate offence as distinct from the alternative, we would have no cause to complain because there were, in fact, three incidents:  the blow on the jaw, which obviously amounted to assault occasioning bodily harm – if you get hit by a fist you do not have to have medical evidence to indicate to a jury that it is going to cause discomfort; that was the first physical act.

The second trauma was when the head hit the pavement and the brain started swelling and as you have just pointed out, permanency means longstanding, but it is relative to the life that you have in hand.  So that you have the second incident allegedly of grievous bodily harm.  Then, of course, you had the final event which was the death and the Crown could well have indicted for three separate incidents had it wanted to, but by using the alternative on counts 1 and 2 and then the judge mixing up all the facts in relation to both counts, which have a different direction in law, the court held that, in all the circumstances, it was extremely dangerous to accept that the jurors knew exactly what the direction was in respect of count 2.

KIRBY J:   So you say, standing alone, the decision of the Court of Criminal Appeal requiring the retrial was necessitated by the errors of the primary judge and you should not be deprived of that entitlement to have the retrial at which, in the directions then given by the judge, some of the questions which the Crown now raises may arise and in the event of conviction may come back to the Court of Criminal Appeal or this Court?

MR CANNON:   That is so, your Honour, and it is quite obvious, in respect of count 2, that when the judge directs the jury on the retrial, he is not going to go into endangering life or likely to endangering life; he is going to stick to what should have been the case in the first instance, namely the permanent injury, personal injury, which was permanent, and that simplifies the whole issue.  When my learned friend asked for certain matters to be defined, as you can see in the submissions of the respondent, endangering life has never been interpreted as causing death.  It is quite obvious that you can endanger life without causing death.  Endangering life goes to the question of foreseeability.  Causing death is one of the events that have to be established in respect of a manslaughter case.  They are two different concepts which ‑ ‑ ‑

KIRBY J:   It is still a serious crime of course, obviously.

MR CANNON:   Obviously that is the case.  So in all the circumstances of the case, I cannot see how any of the finding of the Court of Criminal Appeal is going to have any affect whatsoever on murder cases or wilful murder which involve intentional consequences.

KIRBY J:   Well, in any case, you say errors were made, you are entitled to have those corrected and if such mistakes occur in the Court of Criminal Appeal or in trial judges following the decision in this case, that is the occasion on which this Court would wish to intervene, not in your trial.

MR CANNON:   Not now, your Honour.

KIRBY J:   I understand that.  I think we understand that.

MR CANNON:   Other than that, your Honour, there is nothing I can usefully add to the submissions that have already been made, because I just cannot see how the matter suggested that you give directions on have any general application.  The facts of this case is that the trial judge ‑ ‑ ‑

HAYNE J:   Do not challenge the imagination, Mr Cannon; we understand what you have said.

MR CANNON:   Thank you, your Honour, I will sit down then. 

KIRBY J:   Yes. Mr Dempster.

MR DEMPSTER:   May it please, your Honours, the references by the trial judge to an event, mistakenly at various points, are entirely ancillary to the decision of the Court of Criminal Appeal in reaching a finding of inconsistent verdicts and that is why the Crown is here.  That unanimous ‑ ‑ ‑

HAYNE J:   Assume that to be so, why is this different from Van Den Bemd, to which the respondent referred, where five members of the Court concluded that, in circumstances not substantially different from these, leave should not go?  There should be a retrial and then correct it in light of what happens at the trial.

MR DEMPSTER:   We say because the implications go far beyond the particular facts here and they are facts which arise quite regularly in themselves, of course, and that is a concern.

HAYNE J:   Yes.

MR DEMPSTER:   The error is compounded not merely by adding an element to manslaughter, but by interfering, if one likes, with the definition of “grievous bodily harm” and accident arises very regularly, and that concept appears throughout the Criminal Code and it appears in a number of offences and moreover in concept within the Criminal Code and it is that danger of further error that makes the Crown so sensitive, appreciating that it is rare for the Crown to obtain special leave in these circumstances, but the reversal of the decision would not involve a retrial; it would involve reinstatement of a jury verdict.  May it please, your Honours.

KIRBY J:   Yes, thank you.

The applicant accepts that the principles to be applied concerning the application of section 23 of the Criminal Code (WA) are authoritatively stated in Mamote‑Kulang v The Queen (1964) 111 CLR 62 and Kaporonovski v The Queen (1973) 133 CLR 209 at 215 and 230 to 232. The Court of Criminal Appeal having found that there was a misdirection in law and having ordered a retrial of the respondent, it would not now be appropriate for this Court to grant special leave to the prosecution to agitate questions about the sufficiency of the particular directions given at the first trial of the respondent.

Special leave is therefore refused.

AT 11.14 AM THE MATTER WAS CONCLUDED