The Queen v Puckeridge

[1999] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S161 of 1998

B e t w e e n -

THE QUEEN

Applicant

and

ROY ROBERT PUCKERIDGE

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 2.29 PM

Copyright in the High Court of Australia

MR G.S. HOSKING, SC:   May it please your Honours, with my learned friend, MR A.M. BLACKMORE, I appear for the applicant.  (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))

MR G.P. CRADDOCK:   If the Court pleases, I appear for the respondent.  (instructed by Catherine Hunter)

GAUDRON J:   I think we might hear from you first, Mr Craddock.

MR CRADDOCK:   Your Honours, we had not sat in this configuration as a matter of accident.

Your Honours, at first blush the judgment of the court below might appear to be an odd one.

GAUDRON J:   And it also appears to be at odds with what was said in Doney, does it not?

MR CRADDOCK:   In our submission, not.  In essence, we say the matter would be analysed this way:  Question one, could the jury find each of the elements of the offence proved beyond a reasonable doubt?

GAUDRON J:   We have only to deal with causation, do we not?

MR CRADDOCK:   Yes.  Two, if the evidence raises an innocent hypothesis, the question becomes ‑ ‑ ‑

GAUDRON J:   Reasonable.  That has always been prefaced by “reasonable” hypothesis.

MR CRADDOCK:   And I assume that.  If the evidence raises a reasonable hypothesis consistent with innocence or inconsistent with guilt, the question is whether, upon the Crown case, that can be excluded beyond reasonable doubt.  The question arises whether there was in this case an hypothesis inconsistent with guilt raised on the Crown case.  Professor Ellis ‑ ‑ ‑

GAUDRON J:   That is a question to be answered by having regard to the evidence as a whole, surely, and not simply the evidence of one witness?

MR CRADDOCK:   Certainly.

CALLINAN J:   And bearing in mind, I think it was Justice McHugh in Royall’s Case, said that significant contribution was enough.

MR CRADDOCK:   Oh yes, of course.

CALLINAN J:   In the circumstances of a particular case.

MR CRADDOCK:   For causation, yes, we do not shy away from that.  It has never been suggested that it must be the sole cause.  But the question arises whether there was evidence in the Crown case capable of excluding that hypothesis which was inconsistent with guilt.  If one looks to the – I am not suggesting for a moment that one looks only at Professor Ellis’ evidence, and the Court of Criminal Appeal eschewed any such approach – but firstly, dealing with his evidence, his evidence was not capable of itself of excluding that hypothesis, indeed his evidence raised that possibility.

GAUDRON J:   Did he not raise it as a – did not necessarily raise it as a reasonable hypothesis.

MR CRADDOCK:   I do not know quite why that is said.  The applicant in the summary of argument at 2.5 on application book 98 says:

At the trial Professor Ellis gave evidence that the probable causes for the bursting of the aneurysm were either the trauma…..during the course of the respondent’s assaults upon her or a rise in her blood pressure as a result of these assaults.  He said that there was also the possibility that the aneurysm had burst spontaneously  ‑ ‑ ‑

GAUDRON J:   At some stage there is a reference to it having burst spontaneously after the assault, rather than in the course of the assault and it is then that you come to the evidence, the other evidence in the case.

CALLINAN J:   And, Mr Craddock, take what her Honour has just said to you with, I think it was Campbell’s evidence, was it not, at the trial, that your client said, “You don’t have to worry about the old lady in flat 1, I’ve just killed her.”  Why would not that evidence, without anything else, be capable, if the jury accepted it, of establishing murder?

MR CRADDOCK:   May I come to that in due course.  That is the other source of evidence to which one must look and there is an answer to that.  A good answer or bad answer, we shall see, but there is an answer to that, provided both by Justices Grove and James, and also by Justice Beazley.  But, firstly, it is necessary to look at that question of the timing of things.

The evidence of Professor Ellis was that there were three possible causes.  Rather than as the Crown has summarised them in the outline, two as probable causes and one as just a possibility, Professor Ellis said no such thing.  His evidence is extracted at page 82 of the book.  He had given some evidence about it but he was asked to summarise the possible causes.  First of all, this is at about line 30, possible cause No 1 is:

bleeding in the brain as a result of some trauma to the head.

Two:

bleeding in the brain which was the result of an aneurysm bursting which was caused by some trauma to the head.
…..
Or caused by high blood pressure.

And then three:

the third reason could be…..some spontaneous break of that aneurysm.

Now, the evidence which the Crown relies upon for the proposition that Professor Ellis wrote off spontaneous burst as being a coincidence or an amazing coincidence was predicated upon an assumption which Professor Ellis made for the purpose of questioning, but which was not established by the evidence.  That was that the bursting of the aneurysm was contemporaneous with an assault.  Professor Ellis had no way of knowing that but he answered those questions on the hypothetical case which was posed to him.  You will see at the bottom of 83 ‑ ‑ ‑

GAUDRON J:   But there was certainly evidence on which the jury might reasonably conclude that it was contemporaneous with the assault.

MR CRADDOCK:   I will come to that, if I may.  I just want to clear up Professor Ellis’ evidence for the moment because it is one possible source of evidence to exclude the innocent hypothesis.  You will see at the bottom of 82:

Q.  In terms of a spontaneous break of the aneurysm, unrelated to what was going on…..at that time, are you able to make any comment?

“What was going on…..at that time” was a reference to the various submissions which were put to Professor Ellis and it was on that assumption of contemporaneity between the spontaneous burst in the aneurysm and an assault that the Professor offered the opinion that that would be a coincidence and he was then led a little further down the track, after an adjournment, to the position that that would be an amazing coincidence.  But he did not suggest that a spontaneous burst of the aneurysm at any time would be either a coincidence or an amazing coincidence.  So the question of time was critical.  Justice Grove ‑ ‑ ‑

GAUDRON J:   Of course it is, but is there any foundation for thinking it occurred before the assault that was given in evidence?

MR CRADDOCK:   There is no evidence to establish that the burst in the aneurysm occurred ‑ ‑ ‑

GAUDRON J:   The evidence was accepted that she said she thought she was seeing a ghost and then, no, it is not a ghost, it is someone ‑ ‑ ‑

MR CRADDOCK:   There were a number of inconsistent admissions alleged of ‑ ‑ ‑

GAUDRON J:   Yes, of course, but we are talking about evidence on which a jury can act.  The jury could certainly conclude that it had not burst before the assault, could they not?

MR CRADDOCK:   Well, one does not even really know that because the evidence was that the aneurysm may burst and there may be intracranial bleeding which may go on for some time before it has fatal ‑ ‑ ‑

GAUDRON J:   That is leaking.  An aneurysm may leak, I think the evidence was; that is different from bursting.

MR CRADDOCK:   Professor Ellis was not able to identify it as either a leak or a burst.  Indeed, he was not able ‑ ‑ ‑

GAUDRON J:   He was prepared to say there was another possible cause of death: intracranial haemorrhage from assault, without the aneurysm bursting.  He did not say that the aneurysm burst.

MR CRADDOCK:   No, as a possibility.  There was no evidence from which any direct conclusion could be drawn that the blood inside the skull came from the artery which was subject of the aneurysm because the whole structure had broken down and all there was was about 50 mls of dried blood in the skull cavity.  But there is no evidence to suggest, or to prove directly, that it did not leak before the assault.  But moreover - and I take your Honours to application book 77 where Justice Grove summarises the evidence - he refers to the evidence of Campbell and he says that Campbell:

gave evidence for the Crown at the appellant’s trial and among other things testified that on the morning after the death the appellant had said to him “You don’t have to worry bout the old lady in flat 1, I’ve just killed her”.

Now, the difficulty there is that whilst it is said that it was on the morning after the death, there was no time of death in fact established.  Justice Grove then goes on at page 80 to deal with that difficulty ‑ ‑ ‑

GAUDRON J:   There was evidence consistent with assault.

MR CRADDOCK:   Absolutely.  There was no question that there was evidence before jury upon which they could be satisfied that the respondent assaulted the deceased.  But his Honour Justice Grove says at 80 that it was:

open to the jury to find that the appellant himself believed that his act had resulted in the death of Mrs Thomas but his belief did not establish that as a fact.

CALLINAN J:   Why might not a jury decide that he was right?  Why did it have to be – I mean, even if it were “either/or”, that he believed, as Justice Beazley put it, that he did it or that he had in fact done it, why could not a jury have concluded that he was right when he said that he had killed her?  Why introduce the notion of belief anyway?

MR CRADDOCK:   Justice Beazley in fact provides the answer to that at page 74.  Her Honour says that:

The admissions of the appellant that he had killed the deceased could, in my opinion, raise only two possibilities.  First, as Grove J states, that he believed he had killed her ‑ ‑ ‑

CALLINAN J:   I have read all those passages and I just ask you why would a jury be precluded from deciding that the applicant had in fact got it right when he said he had killed her.  What was to stop a jury deciding that?

MR CRADDOCK:   Because, your Honour, as the majority held, and as we submit, the admission went no further than belief.

CALLINAN J:   No, I am sorry, in terms it was that he had killed her.  The admission was in terms that he had killed her.

MR CRADDOCK:   Yes, if the admission was accepted, and the jury were entitled to accept it, then he certainly believed he had killed her.

GAUDRON J:   The jury would be entitled to infer that he assaulted her and that, following the assault, he observed her in such a state as to indicate that she was lifeless.

MR CRADDOCK:   That is the point we have a difficulty with it.  First of all, we do not have any problem with the jury finding, on that evidence, that he believed that he had killed her.

GAUDRON J:   Whether he observed her in the state of apparent lifelessness.

MR CRADDOCK:   But that is the question that Justice Beazley does take up.  Secondly, that he knew - not only - not believe but that he knew that he had killed her.  For example, he may have tested for a pulse, so on and so forth, but her Honour observes there is no evidence as to that.

CALLINAN J:   I am sorry, Mr Craddock, if what you are putting is right, every time a person makes an admission – or practically every time a person makes an admission to any matter, the admission is capable of meaning no more than that the person believed what was contained in the admission to be true.

MR CRADDOCK:   It depends on the circumstances.

CALLINAN J:   Are you saying that because ‑ ‑ ‑

MR CRADDOCK:   Here, if someone says to you, well, I just ‑ ‑ ‑

CALLINAN J:   There have been a lot of cases wrongly decided, probably thousands of cases wrongly decided over the years if that submission is right.

MR CRADDOCK:   Well, the obvious natural question after “I just killed her” or “I just killed him” is, “How do you know they’re dead?”  It really is that that Justice Beazley was looking to, where there was an absence of evidence as to the reliability, so the question is whether it went past belief.  Take another case ‑ ‑ ‑

GAUDRON J:   And it would not matter whether the person was then dead ‑ if the jury inferred that she was apparently lifeless, it would still be entitled to infer that that was because of some intracranial bleeding brought about by the assault which ultimately resulted in her death.  And it really does not matter whether it came from the aneurysm or not.

MR CRADDOCK:   No, we do not say that it does, but the critical temporal link has to be drawn before ‑ ‑ ‑

GAUDRON J:   Well, that is right, but the Full Court did not look at the evidence which would go to that temporal link.

MR CRADDOCK:   Well, we submit that the court did and we just point to the statement by Justice Grove that there is no point in looking only at the evidence of the pathologist.  The court said in pretty clear terms that it had looked not only at the evidence of Professor Ellis but the evidence in the trial generally and it concluded that in effect that temporal link could not be established and that in this case the respondent’s belief, his admission, goes no higher than belief.  In other circumstances, an admission may be sufficient of itself.  Take the person who says to the police, “Oh yes, well I last used heroin this morning.”

CALLINAN J:   On your argument, he might have thought he used heroin; it might have been some other substance that produced a similar effect.

MR CRADDOCK:   If there is a little extra evidence than that, the fact that he is a drug user and he knows the effects of heroin, his belief may spill over into proof of the fact of the ingestion of heroin, as opposed to one of the other substances which might be passed off as it.

CALLINAN J:   Are you saying he needs – the admission is only good if he has some medical knowledge or the victim is plainly dead with the head severed, or something of that kind?

MR CRADDOCK:   No.  People are perfectly capable of making admissions about things that they know about but not all admissions rise further than a belief on the part of the person who is making the admission as to that state of facts.  The court held that this was one of those occasions where he did not get past belief.  We submit the court was right.

Your Honours have the argument.  I notice the time.  I should say that, because it has been submitted to the contrary, if the Court is minded to grant special leave in this matter we should draw attention to our contention that the result of a successful appeal by the Crown would not be the reinstatement of the conviction for murder.

GAUDRON J:   No.  I was just going to raise that with Mr Hosking.

MR CRADDOCK:   If your Honour pleases.

GAUDRON J:   Mr Hosking, there does seem to be something that might have confused the jury and the directions with respect to causation do not seem to be as exact as they might have been in the circumstances of this case, do they?

MR HOSKING:   Your Honour, I will concede this much, that that was a view put in an obiter way by the majority in the Court of Criminal Appeal but, your Honours, that, in our respectful submission, really is not a matter that is very relevant to an application for special leave because, of course, as your Honours know, there is a world of difference between an outright acquittal and an order for a new trial.

GAUDRON J:   Yes, I know, but I want to know whether, in the event that leave is granted, there is going to be a need then to go beyond causation to look at the conduct of the trial.  Mr Craddock says there is, that that will be necessary to see what order should be made in the event that the appeal were allowed.  I am just wondering what your attitude is to that now.

MR HOSKING:   Your Honours, having reached this delicate stage, I do not want to talk myself out of what I perceive to be an advantageous position.  Your Honours, I cannot make the concession in relation to the matter that my learned friend has put.  It may be – and I will not, with respect, unless I have an abrupt change of heart, make the concession in Canberra either, if your Honours give us leave.  So to answer your Honour’s question directly ‑ ‑ ‑

GAUDRON J:   You see that goes then to the appeal books, the appeal papers that will need to be filed.  And you have the carriage of that.

MR HOSKING:   Yes, I accept that, your Honour.

GAUDRON J:   So it will be necessary for you to prepare appeal papers going to both issues and it will be necessary, I would have thought, really, it being your appeal if leave is granted, to establish what order could properly be made, having regard to what was said in the court below.

MR HOSKING:   Yes, we have thought that through, your Honour.  We are live to that problem.

GAUDRON J:   Yes.  Very well.  There will be a grant of special leave in this matter.

AT 2.53 PM THE MATTER WAS CONCLUDED