The Queen v Whitworth

[1988] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 1988

B e t w e e n -

THE QUEEN

Applicant

and

RICHARD HUGH WHITWORTH

Respondent

Application for special leave to

appeal

MASON CJ

WILSON J

BRENNAN J

DEANE J

Whitworth

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MARCH 1988, AT 10.22 AM

Copyright in the High Court of Australia

C2Tl/l/SDL 1 22/3/88

MR R.V. HANSON, QC:  Your Honours, I appear with my learned

friend, MR D. BULLOCK, for the applicant. (instructed

by Mr D.G. Sturgess, QC, Director of Public

Prosecutions)

MR G.L. DAVIES, QC:  May it please the Court, I appear with

my learned friend, MR B. HARRISON, for the respondent.

(instructed by Swanwick Murray & Roche)

MASON CJ:	Yes, Mr Hanson.
MR HANSON:	We hand up a synopsis of our submissions,

Your Honours. They are in two parts: we have a separate sheet for reasons why special leave

should be granted.

DEANE J:  What is the section of the Act giving

the Crown the right of appeal,Mr Hanson?

MR HANSON:	To this Court?
DEANE J:	Yes.
MR HANSON:	I am sorry, Your Honour.

DEANE J:  Do not deal with it now. Your junior can give it to

you in due course.

MR HANSON:  Your Honours, this is an application by the Crown

for special leave to appeal against a judgment

of the Court of Criminal Appeal of Queensland.

The respondent was charged with murdering his stepson

by strangulation. At the trial he admitted the

killing but raised two defences: firstly, an absence
of the intent necessary to constitute murder and,
secondly, diminished responsibility under section 304A
of the CRIMINAL CODE. That section reduces murder

to manslaughter if the accused was suffering from

an abnormality of the mind. The jury rejected

both defences and convicted him of murder. The

Court of Criminal Appeal has set aside the convictions

and ordered a new trial on the basis that the jury

was misdirected on section 304A.

It is submitted that in doing so the Court

of Criminal Appeal adopted an erroneous interpretation
of the section and could we ask Your Honours now

to look at section 304A of the CRIMINAL CODE.

(Continued on page 3)

C2Tl/l/SDL	2	22/3/88
Whitworth

MR HANSON (continuing):

Wben a person who unlawfully kills another under

circumstances which, but for the provisions of this

section, would constitute murder, is at the time

of doing the act or making the omission which

causes death in such a state of abnormality of mind

(whether arising from a condition of arrested or

retarded development of mind or inherent causes
or induced by disease or injury) as substantially
to impair his capacity to understand what he is
doing, or his capacity to control his actions,
or his capacity to know that he ought not to do

the act or make the omission, he is guilty of

manslaughter only.

Subsection (2), the onus is. on the defence. The

only impairment of capacity in issue in this case

was the"capacity to control his actions." You will

see that there are three capacities mentioned. It

is submitted that those who rely upon section 304A

must prove three things, firstly, that at the time

of the killing he was suffering from an "abnormality
of mind" arising from one of the three enumerated
causes, and those are the causes that appear in

parenthesis; secondly,that that "abnormality of mind"

impaired his "capacity" as specified in the section

and, thirdly, that that impairment was substantial.

There are decisions to support such an

interpretation and perhaps the most recent and relevant

is a decision of the Court of Criminal Appeal in New

South Wales in JONES, (1986) 22 A Crim R 42. That

decision makes reference to earlier English decisions.

We might ask Your Honours to look at JONES, if we

may. On page 42, the last paragraph, you will see

that the charge arose out of a fatal shooting.

(Continued on page 4)

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Wbitworth

MR HANSON (continuing): For present purposes it is only

necessary then to go to page 43, the third

paragraph from the foot of page 43 sets out the

medical evidence relied upon. The statute is a

little different from the Queensland statute;

Your Honours will see that when we come to the

next page. On page 43:

The evidence briefly was that the appellant,

prior to the shooting, had the after effects

of a longstanding heavy alcohol consumption,

which had led to a degree of brain damage;

he suffered, also, from either hypoglycaemia

or hypoglycaemic disease, there apparently

being some distinction between those two

pathological conditions. He also had some

liver damage, again associated with longstanding

alcohol usage.

The medical evidence was to the effect that an individual with the degree of brain

damage - and I note in passing that was but

a slight degree - such as that from which

the appellant suffered coupled with the

hypoglycaemia or the hypoglycaemic disease

condition of the appellant, could become

irresponsible in consequence of a consumption

of a substantial quantity of alcohol comparable

to that which the appellant had consumed on

25 April 1983.

· The evidence was, also, to the ef feet

that without the consumption of alcohol, neither

the brain damage nor the hypoglycaemic condition,

nor the liver condition, either alone or

conjointly, would have led to any irresponsibility

such as could fall within the scope of s 23A(l)

of the CRIMES ACT. It was the super-imposition

of this substantial consumption of alcohol

which, taking the medical evidence at its

highest, could have justified the jury concluding

that there may have been a degree of

irresponsibility on the appellant's part 1n

relation to the shooting.

Then follows the terms of the New South Wales statute

which, for present purposes, is not different from

the Queensland statute. It speaks, Your Honours

will see, of an "abnormality of mind" arising from

three enumerated causes and in those terms is identical

to the Queensland statute. It then goes on to

speak of a substantial impairment of

"mental responsibility" and that is where it parts

from the Queensland statute.

C2T3/l/AC	4	22/3/88
Whitworth

MR HANSON (continuing):  Carrying on then with the judgment:

By that section, the abnormality of mind

which is capable of giving rise to the

defence of diminished responsibility must

arise from one of the limited categories
that the legislature has classified,

that is to say, arising from a condition of

arrested or retarded development of mind, or

from any inherent causes, or induced by

disease or injury. These three generalised categories do not include a temporary state of alcoholic or narcotic intoxication.

This does not of course exclude disease or

injury in the form of brain damage arising

out of past alcohol or drug usage. And

plainly it would include a hypoglycaemic

condition.

The judgment then goes on to comment upon the summing

up below, the English cases which support the

proposition advanced, that the cause must arise from

one of the enumerated causes.	Carrying on then,
the next paragraph:

On the evidence available to go to the jury, there was not, in my view, any material that the jury could properly take into account as

a basis for concluding that the appellant's
brain damage and hypoglycaemic condition

substantially impaired his mental responsibility

for the shooting. The abnormality was due

to his state of intoxication at the time.

He was predisposed to abnormality by his

pre-existing condition. But the abnormality

itself became manifest only as a consequence

- of his being intoxicated. When not

intoxicated, he was not within the scope of

the section. When intoxicated he became

somewhat irresponsible but that in itself

does not permit a finding of diminished

responsibility under the statute. In such

a situation it is not open to a jury to

conclude that the requisite impairment of

mental responsibility was due to pre-existing

abnormality in the appellant.

Your Honours, there are other authorities for that

proposition, and without - - -

BRENNAN J:  How do you relate that to the facts of the present

case?

MR HANSON:  Your Honour, in this case the accused sought to rely

upon a conglomeration of facts. There was an abnormality

of mind of sorts arising from injury, from encephalitis

C2T4/l/HS 5 MR HANSON, QC 22/3/88

wnitworth (Continued on page SA)

at an early age, from concussion at later stages,

and he sought then through his medical experts to

aggregate those conditions, what were called

psycho-social stresses operating upon his mind leading

up to the date of the killing.

(Continued on page 6)

C2T4/2/HS	SA	22/3/88
Whitworth

BRENNAN J:  What do you derive from the passage you have

just cited for the purposes of this case?

MR EAJSON:  In this case we will point, in the evidence, to

factors described as "stress factors" which could

not of themselves fall within any of the enumerated

causes in parenthesis in the section and which

were relied upon by the defence psychiatrist to

support a proposition that the impairment of
self control arose from an abnormality of mind plus

these stress factors.

BRENNAN J:	They are the triggers, as it were?
MR HA~SON:	They go further than that, Your Honour, the

defence wants to go further than relying simply

on the triggering factor. There is one triggering

factor at the time that the killing took place,
but leading up to that, spread over some years it

seems, there are these psycho-social factors.

The triggering factor is a particular incident

that occurred.

BRENNAN J:  But looking at the passage that you just cited,

what I derive from it is that Their Honours there
were saying that the abnormality of mind was here

relevantly caused by intoxication. Intoxication

is not within the relevant causality elements,

therefore the section does not apply?

MR HANSON:	Yes, Your Honour.
BRENNAN J:	Now what do you equate to intoxication for the

purposes of applying this?

(Continued on page 7)

C2T5/l/SR	6	22/3/88
Whitworth

MR HANSON:  In this case, psycho-social stresses and I will

enumerate them for Your Honour in a moment. There

is a long list of them collectively called psych.0 -soc ia 1

stresses culminating in what was called a

triggering event. I will pass to that - - -

MASON CJ: Just before you leave that, do you concede that

in the present case there was an existing abnormality

stermning from one of the specified causes in the

section?

MR HANSON:  Yes, we do, Your Honour. I think we have to.

MASON CJ:  Now, once you make that concession, does that not

irmnediately distinguish the present case from

JONES' case where the Court did not concede the

existence of an abnormality from a specified cause

but spoke of a predisposition to abnormality arising

from such a cause.

MR HANSON:  That is one way of distinguishing this case from

that case, Your Honour, yes.

MASON CJ:	Thank you.
MR HANSON:	Other authorities are cited in that particular

judgment and I will do no more than point that out

to Your Honours. Perhaps the most material was

FENTON, (1975) 61 Cr App R 261, also a case of

cumulative causes. The English statute is, again,

different from the Queensland statute. I think it

is identical with the New South Wales' statute.

(Continued on page 8)

C2T6/l/SH 7 MR HANSON, QC 18/3/88

Whitworth

MR HANSON (continuing):  The combined causes in FENTON's

case are enumerated at page 263 of the report

starting at the second paragraph. There are four

ingredients in combination. Could I read them with

Your Honours, starting at paragraph 3:

The ingredients are given at page 3 of the

transcript of evidence.	The first was the mental
state of Fenton himself.	I shall read now from

Dr Horton's evidence: "He suffers, and I think

all the doctors agree, from a severely abnormal

personality which I myself feel is best described

as that of an aggressive psychopath with
marked paranoid traits." That is the first
ingredient then - the mental state of Fenton
himself. The doctor continued: "the second

is the state of reactive depression, tension and

fear in which he had been certainly for several

weeks and probably for several months, produced

by the various stresses of which the court

has heard and which may have been in part real

and in part fantasy." So the second ingredient,

or the second cause of the mental state, was the
reactive depression, a product of stresses of
which the Court had heard. "Thirdly an excessive
quantity of al~ohol with a resulting

state of disinhibition and possible confusion,

and fourthly the last straw phenomenon.

Dr Horton is saying (as I say, many of

the other experts go a long way to agree with

him) that there were these four factors or

four ingredients, and in the absence of any one

of them the four killings would probably never have

taken place.

(Continued on page 9)

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Whitworth

MR HANSON (continuing): Without reading the rest of that

to Your Honours, the judgment concludes that it

was a proper direction to the jury to tell them to

ignore the effect of the alcohol and the defence

had to be found in the others.

BRENNAN J:  Would the second and fourth of those factors

be regarded as psycho-social stress?

MR HANSON:  Your Honour, the distinction is this: in that

case, in FENTON, apparently the evidence went so

far as to say that the stresses had produced an

actual psychiatric illness diagnosed as reactive

depression,a known psychiatric illness. In this
case the evidence does not go that far. There

was no suggestion from the psychiatrist for the

defence that the respondent was suffering from

reactive depression or some other nominated or

known psychiatric illness. While we are looking

at FENTON could we ask Your Honours to look at

page 264, the second paragraph says this:

A second point is argued for the

appellant, namely, that even if the

effect of alcohol was properly ignored,

the effect of the remaining factors

which were agreed to be included in

abnormality of mind was sufficient to

cause a substantial impairment.

I ask Your Honours to notice that because it seems

to have been agreed in FENTON's case that the

triggering event, the fourth factor, the triggering

event could be included in the abnormality of

mind. We would submit otherwise. Our submission

will be,to include the triggering event is to

argue in a circle. To say that response to the

triggering event is part of the abnormality of

mind and therefore causing a loss of control in

response to the triggering event, is to argue in

a circle.	So although FENTON's case on a reading
there at first appears to permit the triggering

event to be included, it seems to be included

by agreement as from page 264 and we would argue

to the contrary because the defence here did indeed

rely upon the triggering event.

Your Honours that,in our submission, is

the proper interpretation of section 304A and

indeed the judgments of the Court of Criminal

Appeal in this case recognize the principle but,, in our submission, they appear to have departed

from it. If we could ask Your Honours to have a

look at the evidence now, and it is to this effect.

The defence sought to rely upon the pre-existing

abnormality of mind arising from disease or injury,

which I have already mentioned to Your Honours,

C2T8/l/SR	22/3/88
Whitworth

encephalitis, concussion, combined with his response

to what were called the psycho-social stresses and

combined with the triggering event. Now, His Honour

the trial judge refused to allow the defence to be put to the jury on the basis of all of those factors and confined their consideration to

abnormality arising from injury - encftphalitis and

concussion. The ruling in the Court of Criminal

Appeal was that that was a misdirection.

(Continued on page 11)

C2T8/2/SR	10	22/3/88
Whitworth

MR HANSON (continuing):  Your Honours, he was shown to have

been suffering from actual brain damage; that was

demonstrated by the evidence of Miss Field, whose

evidence is in the record book, it is not necessary

that we ask you to look at it. She was a psychologist,

a neuropsychologist, and upon psychological testing

she found actual brain damage to the brain in two

areas; the frontal lobe and the tempera-parietal

lobe. Your Honours, I expect, would know that

the frontal lobe affects impulse control and the

left temporal lobe affects emotions.

The tests then confirmed some brain dysfunction.

In addition an electroencephalogram had been performed

which showed some cerebral abnormality. Two

psychiatrists gave evidence, a Dr Whiteford for

the defence, and a Dr Unwin, for the Crown. They

both agreed that the accused had some organic brain

dysfunction. However, the defence sought to rely

upon other factors in support of the plea and they

are these - and Your Honours will find a list of

them in Dr Whiteford's evidence at page 114 of

the application book. At about line 28 - this is

Dr Whiteford - he says:

I can summarise what I think are the key factors

in the history ..... I think the factors bridge

across biological factors, social factors,

pshychological factors in this man's case.

I think that due to Mr. Whitworth's early

life experiences, especially being raised

in a strongly religious family, he had sound

moral standards, especially regarding what

is appropriate sexual behaviour. He had a

particularly abhorrent experience at a young

age that he has related to this court which

has left him distressed when he thinks about

it and especially observes male homosexuality

or masturbation -

just pausing there, Your Honours. The evidence was

when he was seven years old two teenage boys had

accosted him, sexually assaulted him and masturbated

him. Carrying on then, at line 40:

I think that's been a particular scar in his

personality. He suffered three brain insults

during his life which I think are significant.

The brain infection which, according to the

report I have from the Sydney Hospital, was

encephalitis which is an infection of the

brain substance, plus the head injuries that

have been discussed, I think they left him

with some evidence of underlying disturbed brain

function. I think the evidence for that is the

neuropsychological evidence presented to this court this morning and the abnormality on the

EEG which the neurologist reported.

C2T9/l/AC	11	22/3/88
Whitworth

On page 115 he carries on - at the top of the page

at about line 4:

I thought those two investigations were internally

consistent, and fourthly, I think that it

can't be discounted, the increasing
psycho-social stress that has been gone over

in this Court at the time, leading up to the

killing. I think that stress set the stage

for the loss of impulse control -

and then he is asked to outline what he had been

told about stress.

(Continued on page 13)

C2T9/2/AC	12	22/3/88
Whitworth

MR HANSON (continuing):

I was told in some detail many of the things that

have been reported here. I was told of

Mr Whitworth's breaking his leg which was in

plaster for some time. The fracture healing

badly with considerable on-going pain, the

financial difficulties which Mr Whitworth

perceived he had, the long hours of work, up

to 20 hours a day, the concerns he had about

Kevan -

Kevan is the deceased boy -

Kevan's behaviour regarding fire setting -

and pausing there, there was evidence that the boy

had set quite a number of dangerous fires -

approaches Kevan was making to Mrs Whitworth -

the accused's wife. There was evidence that he had

indecently touched her -

the lack of support he perceived he was getting

from Children's Services Department -

pausing there. There was evidence he had asked the

Children's Services Department for assistance with

this boy who was acknowledged to be a problem child. He was mentally retarded, he was 15 years old, said

to have a mental age of 8 or 9 and the accused sought

some sort of help from them. Carrying on then, at

line 21:

the extra and added responsibility that he had

taken on in school, the church, etc., and he
reported to me that over the weeks leading up

to Kevan's death, there had been increasing

irritability that he felt. He was screaming

at the children for reasons which he normally

wouldn't, that he was tense, and I think that was an early sign that he may lose control.

And then on page 116 - perhaps before we just read

that we should inform Your Honours of the circumstances

of the killing. They lived on a farm, the deceased

boy had been sent out by the accused that morning to

do some fencing. Some hours afterwards the accused

went out looking for the boy. He came upon him in the field which his trousers down masturbating and

he strangled him with a piece of twine. He says he saw the boy with his trousers down, picked up a piece of twine or rope to give him a beating and

when he realised what the boy was doing, masturbating,

he then strangled him. If I could take you back

then to the evidence of Dr Whiteford - that is the

ClTl0/1/MB	13	22/3/88
Whitworth

triggering event, Your Honours, that I promised
to tell you about, coming upon the boy masturbating,

something that he found abhorrent, partly because

of what had occurred to him when he was seven years

of age.	Coming back then to Dr Whiteford's evidence
at page 116 at line 12.	He was asked then for his
opinion:

I think that taking everything together with this

man, his early life experiences which we have

been over, particularly, the assault on him as

a child, the cerebral dysfunction, the brain

dysfunction, the severe stress he was under at

the time and the fact that he found Kevan doing

what he perceived was masturbating which was a

particularly sensitive triggering factor to him in

this case because of what had happened to him that

he was unable to control his actions.

Now, he then, on the top of page 117 spoke to the terms of the section and put the case within the

section. The matter was dealt with in a little more

detail in cross-examination. If I could ask

Your Honours to have another look at what he had

to say further because we want to demonstrate that

he sought to rely upon extraneous factors without

proffering an opinion that the extraneous factors

had, indeed, induced an abnormality of mind.	We
seek to demonstrate that he wants to aggregate extraneous factors with an abnormality of mind.

(Continued on page 15)

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Whitworth

MR HANSON (continuing): That appears - if I could just give

Your Honours the references now and then take you

through them - from Dr Whiteford's evidence at

pages 116 to 117, page 127, 128, 129, 130 and 131.

If I may take a few minutes to pick a couple of

passages from those pages to demonstrate the point.

We could start at page 127 at about line 6,

Dr Whiteford says:

I think, with the balance of evidence in

my mind, that this man had these brain

abnormalities, and the particular life

that he lived, the way he was brought up,

the traumatising early events, the

significant psycho-social stress, all

drawn together at this point in time, finding his foster son masturbating -

trigger!

On page 128, at line 12:

You see, isn't it really the point that

this man has had presumably brain

abnormalities for some time prior to

July of 1986?-- That's correct.

And yet, there is no evidence at all of

any violent outburst over that period of

time?-- I have no evidence of that, no.

An Doctor, just because there is then one

- let me suggest to you - cannot necessarily

be attributable to the existence of a brain

abnormality for some time prior?-- I'm not

sure I follow your reasoning. I think the

fact that it occurred is obviously why we

are here, and we are trying to address the
issue of why it occurred, and in my opinion,
why it occurred, we can't ignore the fact that

these - we are trying to explain this, and to

my way of thinking, all the factors I have

mentioned coinciding together is the reason

this occurred.

On page 129, at lines 27 through to 38:

Doctor, if I can go back to your own report

to p.3. was it your finding that from your

own examination that you could discover that

you could find no evidence that Whitworth was

suffering from any overt mental illness at

the time of this particular offence?-- That's

correct.

But you go on to say, and I think you have

already done so in your evidence-in-chief

that there were a number of factors which,

C2Tll/l/SH	15	22/3/88
Whitworth

in your opinion, contributed to his state

of mind at the time of death?-- That's

correct.

On page 130 - at the top of page 130, he is then asked to commit himself to what is this man's

abnormality of mind and we rely upon page 130

lines 1 through to lines 48 and this is the

crux of our submission really.

Well, Doctor, what do you say was this man's abnormality of mind?-- That's the difficult

area. You have to have, I think, one of

these on their own is probably necessary,

but not sufficient; for example, the brain

damage, and I am reluctant to try and just

take one of them in isolation and say, this

is totally responsible. I think that they all

have to be considered together because, you

know, you can't - I don't take the point of

view that the mind and the brain are two

different things. I take the view that

thoughts and emotions are a result of

electrical impulses and activity occurring

in our brain and so to take a psychological

stressor and tease that apart from something

going on at a chemical level in the brain, I

think you are looking at the same thing from

two different angles, so I think that it is all

intertwined and I think in that sense psychological

stress contributes, as does organic brain damage

stress, and they combined together in this case

to cause loss of impulse control.

(Continued on page 17)

C2Tll/2/SH	16	22/3/88
Whitworth

MR HANSON (continuing):  If he did not have any brain

damage at all-----?--I think it would
be much less likely that this would have

happened.

Could it still have happened?--Yes, it

could have.

How significant - perhaps you have answered

that. You say that it would be much less likely

that it would happen?--1 think the brain damage

was necessary but not sufficient in that sort

of terminology ..... It's not necessary, but not

sufficient in its own right. For example,

if he hadn't had the other things, he could have

gone on with this brain damage all his life

and this could never have happened.

Did the brain damage itself actually lead

here - did the brain damage itself lead to his impairment - to his loss of ability to control his actions?

Your Honours, that is the critical question - answer:

The loss of ability to control his actions -

I'll try and describe it like this - it is

like everybody gets an impulse to do something

when they are put under pressure. You have

something driving that, a build-up in pressure

and pressure over a long period of time just

increases the force driving and impulse to

do something. Then you have what resists this

impulse which is your own ability to control your actions which you learn as you grow up.

The brain damage lessened the ability to

control his actions. The pressure and the

stress drove the impulse forward and so both

of them together contributed to the loss of

control. I don't know if that's clear what

I am trying to say.

And finally on page 131, at lines 18 to 28:

Would it be the case that you simply could not

say one way or another whether the abnormal

brain here made any significant contributions

towards his behaviour on that particular day?

--I think it did make a significant contribution.

But you can't say that if it stood in

isolation?--No. I think that if the other

factors hadn't occurred, this man may have gone

on with his level of brain dysfunction perhaps

for the whole of his life.

C2Tl2/l/HS	17
Whitworth
MASON CJ:	But when you come back to the answer to the

question that you described as the critical question

on page 130 you find the sentence, "The brain damage

lessened the ability to control his actions."

MR HANSON:	Yes, Your Honour.
MASON CJ:	That comes very close to answering the question

posed by the terms of the section and when you look

at the structure of the doctor's answer he is treating

the brain damage as being fundamentally important in

relation to the capacity to resist the impulse that

is created by other factors.

MR HANSON:	Yes, Your Honour.
MASON CJ:	Is not that the correct way to look at it, that it

was the bra~n damage that resulted in the loss of
ability to control that was critical in his failure
to be able to resist the impulses coming forward from

other factors.

}1R.HANSON:	Your Honour, we understand him to be saying -
MASON CJ:	Yes, and as I am reminded by Justice Brennan,

not self-induced factors?

(Cont:inued on page 19)

C2Tl2/2/HS	18
Whitworth

MR HANSON:  N~ we do not suggest that for a moment. If

that answer meant that the brain damage predisposed

him or made him vulnerable to the triggering

factor, that would be one situation, but we

understand the answer to go further than that.	The
doctor wants to say that the predisposition
flowing from an abnormal mind can be aggregated
with the stress factors that are built up in him and then in combination, the brain in that
condition meets a triggering factor.	Now, in our

submission, that is illegitimate, that you

take an admitted abnormality of mind, namely, one

that is predisposed, you add on stress factors

and then you are confronted with a triggering

situation and you lose control. What the section

must mean is that the loss of control must be

traced back to an abnormality of mind and that
in itself must be sufficient to impair the capacity

to control.

MASON CJ:	But, you see,if you look at the next sentence, the doctor is not treating the stress factors as
impacting on the capacity to control the actions.
He is aggregating them with,perhap~,the circumstances of the moment .. as matters driving the impulse forward and what he says is, the pressure
and the stress drove the impulse forward and so both of them together contributed to the loss
of control?
MR HANSON:	Yes, Your Honour.
MASON CJ:	But when he says that he is treating loss of

control as resulting from two factors, really, the

impulse forces and the inherent capacity to

resist and he is treating the abnormality as being

the fundamental factor relating to the capacity
to resist? He is not treating the psycho-social

stresses as bearing on that, but rather as

exacerbating · and aggravating the impulse factors?

MR HANSON:  Yes, well that is not legitimate in our

submission. That cumulates the psycho-social

factors with the triggering factor. If that is

what he is saying, Your Honour, he is saying that

the psycho -social pressures, which are spread over

some years as I understand the evidence, can all be

gradually accumulated without causing an abnormality

of mind and sort of put to one side and held ready

so that when you come across a triggering event

you can put them altogether and put yourself within

a section.	Now, with respect, Your Honour, he
seems to be saying that.	We accept that response

to a triggering factor is perfectly permissible,

but in our submission, it is not acceptable to have

regard to the mans social background and his social

C2Tl3/l/SR	19	22/3/88
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build up over years, and then have that lying side

by side with brain dysfunction and then when you meet a triggering factor you put them altogether and come up with an impairment of capacity for

self control. Your Honour, perhaps our objection

to the argument is two fold. If the defence seek

to improve an abnormality of mind by referring

to extraneous factors, well then they have to go

so far as to say he has an abnormality of mind,

extraneous factors cannot be used to bolster the

state of mind and call it a new state of

abnormality unless it is described, in psychiatric

terms, as an abnormality of mind and in some

respects that is sought to be done here, we

submit.

(Continued on page 21)

C2Tl3/2/SR	20	22/3/88
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MR HANSON (continuing): Another way of looking at what is

sought to be done is that you take an abnormality

of mind, you take a triggering event and you add

to those two factors a third set of factors. So

that, in that event, our objection is that the

impairment of self control does not flow from the

abnormality of mind. It would seem the abnormality

of mind in that situation would not alone be

sufficient as the section requires that it should

be.

WILSON J: It is not right, Mr Hanson, then, to see these

psycho-social factors in the case such as this

as really informing the circumstances surrounding

the trigger? In other words, his impulsive reaction
to finding Kevan in the field doing what he thought

he was doing is really a reflection, a consequence,

of these psycho-social factors and that is their

only significance? They generate the impulse and

drive it forward and it meets this impaired capacity

resulting from the brain damage. Is that not an

appropriate way to view the facts in this case?

MR HANSON:  Your Honour, our submission is that to argue

that way towards the defence is to embrace factors

that are outside the scope of the section. You

are, indeed, resorting to causes outside the scope

of the section. The section seems to speak of

two causes: there is a cause of the impairment,

what has it that has impaired his capacity to control
himself, and the section says that that impairment

must arise from abnormality of mind; and the other

cause of which the section speaks is what is the
cause of the abnormality of mind and three causes

are enumerated. In our submission, it is not

legitimate to introduce any other causes into either

of those two steps.

BRENNAN J:	So restricted an approach to it leaves out of account the exigencies that arise from ordinary
living. Take, for example, the case of somebody
who is suffering from endogenous depression and
whose ordinary life is very depressive. If the
ordinary circumstances of life, which are depressive, operating upon the pathological condition, produces
a relevant abnormality of mind, that argument would
say that person is not entitled to the defence.
MR HANSON:	Your Honour, we would answer that by saying his pathological depression would have to amount to
an abnormality of mind within the section and that
abnormality of mind would then have the characteristic
that he was unable to control himself and cope
with social pressures.

C2Tl4/l/SDL	21/22	22/3/88
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BRENNAN J: With the social pressures of his life?

~iR HANSON:  Of his life, yes, we accept that, that if he

comes to deal with ordinary social pressures with

a mind that is abnormal within the section and it

has been rendered abnormal for legitimate reasons

within the section, well then, he is entitled to

the defence; he finds himself unable to cope with

the ordinary every day social events that he comes

in contact with.	The reason is that his mind
is abnormal.

BRENNAN J:  I do not see the distinction in principle

between that case and the present·

MR HANSON:  The distinction we put is this, that the

psycho-social factors sought to be brought to account

go back to the age of seven when the man first had

this event that is said to have left him with a

psychological scar. And then the psychiatrist

seeks to accumulate that with his religious

upbringing, his injuries throughout his lifetime,

his financial worries and the whole progress of

the man's life up until the time of death.

Now, if indeed he had at the date of death

a state of mind which rendered him incapable of

coping with what he came across that day, he is

entitled to the protection of the section, Your Honour,

but to bring to account the whole of his background

and add that to an accepted abnormality of mind,

in our submission, really steps outside the section.

BRENNAN J:	I will not delay but can I just understand your submission correctly. If the death is to be
attributed causally to an abnormality of mind and the abnormality of mind is to be attributed causally to one of the relevant phenomena referred
to in the section, it is your proposition that no
other phenomena than those looked to in the section
can be a cause of the abnormality of mind because
to in the section then the defence is not available?
if there is any other cause than those referred

MR HANSON: Yes, Your Honour, that is our proposition.

MASON CJ: Well, that is a sole cause argument, is it?

MR HANSON: It has to be, Your Honours, yes.

MASON CJ:  So that even if.according t0 the evidence the specified cause

·-was the effective cause, the. predominant cause ~d be good enough?

MR HANSON:  No, it would not.

:MASON CJ: And you say certainly would not be good enough

if it were just a "but for': cause, a sine qua non? :.

C2T15/l/MB	23	22/3/88
Whitworth

MR HANSON: Well, perhaps I should put it this way, that the

jury must be told to ignore any causes that cannot

fall within the section. Anything that is to be

relied upon must be - - -

MASON CJ: Well, that seems to be taking a giant step away from the sole cause approach which you identified

yourself with a moment ago?

MR HANSON:  When I say sole cause I mean sole causes as

specified within the section. The jury may not

look at any cause which does not fall within the

section.

MASON CJ:  Even if a cause which does fall within the

section would have been effective to produce the

result?

MR HANSON:  Yes, Your Honour. The cause within the section

must itself, unaided, render the accused incapable
because that is what the section says, in our

submission.

MASON CJ:	The question is whether the section says that?
MR HANSON:	That is our submission in a nutshell, Your Honour.

That is what was done, in our submission, in

FENTON and JONES, with these other causes.

MASON CJ:  They are all cases of the applicant, the accused, imbibing intoxicating liquor, are they not?

(Continued on page 25)

C2Tl5/2/MB	24	22/3/88
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MR HANSON:	Certainly JONES was.
MASON CJ:	Have you got any case which does not involve

intoxication?

MR HANSON:  JONES speaks of hypoglycaemia, I think - no,

that was treated as part of the abnormality of

mind. No, I do not think so, Your Honour. They

are, admittedly, self-induced factors and are
said to be so in the reports - alcohol and drugs.

But if you may have resort to other factors, where do we draw the line? This case is a good example.

There are a multitude of factors that the psychiatrist

wants to look to, starting from the accused's youth

and he is now 40 years old, and he wants to rely

on all of them and accumulate them without saying

that they have produced in the man's mind an

abnormality of mind at the day of the killing.

They are just, sort of, background factors that

may be looked at to bolster the description of

his mind.

If that is a valid argument, you can start

with the man's life from day one and look for anything,

then, that tends to predispose him to caving in

to social pressures. We come back to saying, the

jury may not look at anything that is outside the

section. That is the submission, in brief,

Your Honours; it has to be within the section and,

in itself, sufficient.

There is a further submission we have that is on a factual basis and since I have just read

Your Honours the evidence of Dr Whiteford the

submission is this: taking his evidence at its

highest, it would not support the defence and the

Court of Criminal Appeal was wrong in fact in ordering

a retrial because they seem to have taken the view

that there may have been a defence there for this

man if Dr Whiteford had expressed himself differently.

Your Honours will find those sentiments in the

judgment of Mr Justice Thomas at pages 201, 209
and 211.	At 201, in this regard, we rely upon

lines 2 through to point 9 of the page - I do not

want to read it all to Your Honours but if you

would pick it up at about point 8 of the page -

page 201 - speaking of the doctor's evidence:

If on the other hand he had expressed the

view as an expert that the brain damage was

induced by disease or injury, and that the

effect of the various stresses arose from

a condition of arrested development of mind,
or from inherent causes, or that the combined

effect of the brain damage and the psychological

C2Tl6/l/AC	25	22/3/88
Whitworth

reactions arose from one or more of the

specified causes, the requirements of the

section would have been met -

"would have been met". On page 209, His Honour

expresses the same sentiments, commencing at about

point 3 of the page, under the quote:

The major difficulty in the present case

emerges from the use of the loose term

"psycho-social factors". Obviously such factors

are not a condition of mind - they are at

most a cause that can lead or contribute to

an abnormality of mind. If there were evidence

that they led or contributed to an abnormality
of mind of the kind mentioned ins. 304A,

then obviously the jury should have been permitted

to give due regard to them in considering

the accused's state of abnormality of mind

at the critical moment when the crime was

committed. The uncertainty in the present

case arises from the failure to link the
psycho-social factors to the state of abnormality

through any of the prescribed causes.

(Continued on page 27)

C2Tl6/2/AC	26	22/3/88
Whitworth

MR HANSON (continuing): That is the point we make.

trial to give him a second chance and, at page 211 -at the foot of page 211:

Dr 'Whiteford never made the connection and be a new

In the present case there is reason

to believe that the appellant may have had

a case of diminished responsibility based

on interaction of the effects of psycho-social

factors upon a condition of brain damage

which was not properly put to the jury.

We understand His Honour, there, to be speaking of -

not of criticizing the trial judge in his charge

to the jury but, as to Dr 'Whiteford, perhaps

having been able to say more but did not. We

submit that those passages really amount to an

argument by the Court of Criminal Appeal that there

may have been a case of diminished responsibility

if it had been differently expressed.

Your Honours, Mr Justice Derrington expressed

somewhat similar sentiments at the foot of page 232,

the last sentence,onto the middle of page 233. Our

submission is that the direction of the trial judge

to the jury was correct upon the evidence as it

appeared and, really, what the Court of Criminal

Appeal has done is to say the defence may have been

there if Dr 'Whiteford expressed himself in another

way and we will give him another chance.

Now, we submit that, although that is an

error on the facts, it is a point for special leave

because a jury of a verdict for the serious crime

of murder has been set aside for inadequate grounds.

GAUDRON J: 'What is the consequence, Mr Hanson, of a successful

Crown appeal under Queensland law?

MR HANSON:  The order of the Court of Criminal Appeal would be

set aside, Your Honour, quashed. The verdict of the

jury would then stand. There would be a conviction

for murder stand.

BRENNAN J: Mr Hanson, as I see Justice Derrington at page 228,

he is rather founding his judgment on a proposition

that what the accused was entitled to and what he did

not receive in the summing up was to have the jury

address the question whether any abnormality of mind

arose from the inherent cause constituted by his
inherent limitation of tolerance in the context of

the very severe stresses which, in all accounts,

were inflicted upon him.

MR HANSON:  I do not quite understand what His Honour is saying.

We think, perhaps, he is saying that if Dr 'Whiteford

C2Tl7/l/SH	27	22/3/88
'Whitworth

had said that the stresses had produced an

abnormality of mind which rendered the accused

less able to cope, well, then, he would be

within the section. We agree with that. We

do not deny that proposition. His Honour seems

to be saying that if that is the way the evidence

had been presented, well, then, the man would

have been within the section.

Your Honours, I should draw your attention

to the surmning up because it is our submission
that it was correct in law and in fact as the

evidence fell and the directions to the jury,
without reading it to Your Honours -the direction

to the jury upon this aspect of the defence

commences at page 183, line 53.

(Continued on page 29)

C2Tl7/2/SH	28	22/3/88
Whitworth

MR HANSON (continuing): It runs through to page 186, line 55.

I will not read that to Your Honours. It comprises a direction to the jury on the law, a comparison

of the opinions of the two psychiatrists and at

page 186 is the critical direction to the jury.

He was asked to redirect at page 188, line 27

through to line 35, and his reasons for refusing to

redirect are at page 189, lines 9 to 25. I will

not read those passages to Your Honours. The judgments in the Court of Criminal Appeal are

lengthy~ Could we identify by reference without

reading to Your Honour those passages we say that

demonstrate misinterpretation? Mr Justice Matthews

at page 193, at about point 3 of the page to

point 75 and Mr Justice Matthews at page 195 the

whole of page 195; Mr Justice Thomas at page 199,

about point 75, commencing with the sentence, "The

real questi'on in the appeal" and Mr Justice Thomas,

again, at page 211, a passage that I have

already read to Your Honours in another context -

at the foot of page 211; Mr Justice Derrington

at pages 232, commencing at the foot of page 232 -

I have already drawn your intention to this in

another context- through to point 5 of page 233

and then on page 234, the top of the page to the

middle of the page.

In those passages, in our' submission, are to

be found arguments that factors outside the scope

of the section may be accumulated with factors

within the section to make out the defence.

Your Honours, that is all we wanted to say upon

point 2 of our synopsis. Point 3 raises a slightly

different point. It does seem, with respect, that

Mr Justice Thomas and Mr Justice Derrington go

close to treating these psycho-social factors as

inherent causes. Mr Justice Thomas at page 207,

at about point 9 of the page:

Much as I distrust the looseness of

permitting vulnerability to stress to

be recognised as an "inherent cause"

under the section, to exclude it

would be to deny the defence in a
number of meritorious cases.

I know, Your Honour Mr Justice Brennan sees that

as a valid argument, I think, from what you put

to me. We submit that it is the abnormality of

mind itself which must provide the vulnerability

to stress. It is to be found in the abnormality

of mind. It is not to be found by aggregating

an abnormality of mind with stressful factors.

Mr Justice Derrington on the same point at

page 227, at about point 8 of the page, the paragraph

at the foot of the page, running to the middle of

page 228 - - -

C2T18/l/SR	29	22/3/88
Whitworth

BRENNAN J:	All Mr Justice Derrington is saying there is this, is it not, that just as soldiers come home from a war
with abnormalities born of the horrifying experiences
that they witnessed, or just as a person may suffer nervous shock from observing a scene of particular
horror, so external causes may, on occasion, produce mental abnormalities that fit within the section.
MR HANSON:	Your Honour, if that is all he is saying we have no quibble with it. We accept that, but as long as
the abnormality of mind has indeed been brought about
it probably does not matter from what sources, as long as they are one of the enumerated sources within the section, and I suppose you can say that
war stress producing an abnormality of mind can then
be said to be an abnormality of mind arising from
inherent causes, once the abnormality of mind is in
place, once it is there.  There is authority for
saying - I think we have seen it in passing - FENTON
might be one of the authorities - that a reactive
depression causing an abnormality of mind is within the
section, and once you are within the section with
an accepted abnormality of mind, if it is acceptable
to say that they arise from inherent causes, namely
your reaction to social events during your lifetime,
the section is available.  We would not dispute that,
but our quibble is that you must have that abnormality
of mind when you arrive at the triggering event.

You cannot, sort of, come back from the war with

all of these experiences stored away but not suffering

from any abnormality of minds~ I mean, you carmot say a

soldier has come back with all of these experiences

and then faces a triggering event, and then he has

an abnormality of mind.	The abnormality of mind must
be in place.

BRENNAN J:  That seems to me to be a good example, because

if a soldier comes back from the war and he certainly

hears the sound of a gun shot, his reaction may be

instantaneous and fatal.

MR HANSON:  Your Honour, if a psychiatrist said that he had a

condition of the mind that rendered him unable, or

impaired his capacity to control himself when he heard

a gun shot, he may be within the section if a jury said

that that condition of the mind was abnormal, that he would

have to come within the section by having an abnormality

of mind before the triggering event. He cannot arrive

there without the abnormality of mind and suddenly acquire it when a triggering event occurs, and we

do not dispute that if social causes that have

started from day one of his life have rendered him

into such a state that he has an abnormality of minds,

well then he is within the section. But that is how

far he has to go. The social stresses must have gone

that far to produce an abnormality of mind when he is

C2T19/l/HS	30
Whitworth

confronted with the situation that is in question.

Otherwise, if you can have all of these factors in your pocket, as it were, to draw upon, the section is

open to abuse. There is no knowing where it can end.

It is difficult to interpret. It is available for

anybody.

Your Honours, I have not yet come to section 304

which has a bearing on these submissions. Section 304

ceals with - - -

DEANE J:  Mr Hanson, could I just interrupt you for a moment.

At page 195 Mr Justice Matthews says at the middle of

the page:

The question for us is whether

His Honour was correct in excluding the stress factors from the jury's consideration

when it was accepted that the appellant

had an abnormality of the mind and that the

stress factors could have operated with that

abnormality of the mind to cause the

appellant's inability to control his actions.

Do you contest that that is an accurate statement of

this case?

(Continued on page 32)

C2Tl9/2/HS	31
Whitworth

MR HANSON:  I am sorry, Your Honour, page 195?

DEANE J:	Page 193, I am sorry, in the middle of the page.
MR HANSON:	That this is an accurate statement of the facts?

DEANE J: Of the case. It is certainly the case that

Mr Justice Matthews dealt with.

MR HANSON:	That is an accurate statement of how Dr Whiteford put his case, it seems.
DEANE J:	And that is what the trial judge excluded?
MR HANSON:	He excluded the stress factors.
MASON CJ: I thought you conceded that early on:	that there

was an abn'ormality of mind stemming from injury

or disease?

MR HANSON:  Yes.

DEANE J: If you have that and you come to the section and,

without the abnormality of mind the crime would
not have been committed, how can you say that that

abnormality of mind did not substantially impair

his capacity? It does not say solely or it was

the sole thing - it just has to be a substantial

cause.

MR HANSON: It really does not say either, Your Honour.

It says, "such an abnormality of mind as to impair". of causation. It is hard to get away from speaking

in terms of causation but the section speaks of

the condition of mind "impairing".

WILSON J:  Excuse me, it does say:

as substantially to impair.

MR HANSON: Yes. That is another argument we have; this

man lost his control completely.	I take
Your Honour's point but - - -

DEANE J: If a man's capacity to control his actions is

substantially impaired in the sense that if he

has too much to drink or if he is provoked or if
he imagines he is insulted he is likely to pick

up a knife and stab somebody, why does not his

abnormality of mind substantially impair his capacity

to control himself?

MR HANSON: If the jury found that it would have occurred

independently of the intoxication, he would be

within the section, but they must do that.

C2T20/l/SDL	32	22/3/88
Whitworth

DEANE J:  But the jury were not given the opportunity.

MR HANSON:  They must not, with respect; they must not look -

they cannot look at the effects of alcohol upon

him at that time.

DEANE J :	But what i f , in terms , the j u r y had s a id , "We f ind
that this man's abnormality of mind is so substantially impaired that if he is placed under stress and
provoked by seeing somebody doing this sort of
act he is likely to kill the person concerned".
How, as a matter of language, can you say that
his abnormality of mind does not substantially impair his capacity to control himself?
MR HANSON:	In that case he would be within the section because

Your Honour says that he does have an abnormality
of mind which impairs his ability to cope with

the situation. He has the abnormality of mind

which itself goes that far.

DEANE J: But that is what the court has dealt with. It

said, "If he has an abnormality of mind which,

combined with stress and provocation, leads him

to kill, that is within the section".

MR HANSON:	The jury were told to leave out the stress factors.
DEANE J:	And the court said they were wrongly so told.
MR HANSON:	Our submission is that they cannot have resort to the stress factors because the abnormality of
mind itself must be alone sufficient.
DEANE J:	I do not want to take time but that ignores the question if the abnormality of mind is such as
to cause him to lose control under stress.

MR HAN8ON: Is Your Honour reading "substantially" in a

causative sense or in a quantitative sense?

DEANE J: In both.

MR HANSON: In our submission, it really only refers to a

quantitative question. There must be an impairment

which is substantial. It is not meant as an

indication of causation.

(Continued on page 34)

C2T2O/2/SDL	33	22/3/88
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DEANE J:  Thank you.

MR HANSON: Perhaps I should have said that a few minutes ago.

We come back, Your Honours, to saying that everything must fall within the section.

Your Honours, there is a further argument that

we put in paragraph 4 of the synopsis. It is a brief

argument. The section deals with impairment of

capacity. There is another section of the CRIMINAL CODE which deals with total deprivation of capacity

and that is section 27 dealing with insanity and

our submission is that if the man is totally devoid

of control, well, then, section 27 should apply, if

he is relying upon some abnormality of mind. Now

section 27 is expressed in different from section 304A.

It is not expressed in terms of an abnormality of mind.

It is expressed in terms of a disease of the mind or

something to that effect. I will not take time by

reading it to Your Honours. There is probably not

much more to be said than what appears in the synopsis

at paragraph 4 but could we add to that, then, this

submission: that section 27 and section 304A and

section 304 which I have not yet referred Your Honours

to, together provide a code for somebody who murders

in a rage,• when he cannot control himself.

Section 304 deals with killing on provocation and

that reduces the crime of murder to manslaughter if
the accused kills, in effect, in a rage in response

to a sudden provocation. Now, Your Honours, our

submission is this: that section 304, 304A and

section 27 provide a code for excusing and mitigating

killings done while the accused has lost his

self-control. If he has lost his self-control in

response to a provocation, in accordance with

section 304 there must be a provocation and he must

act while still under provocation, his crime is

reduced to manslaughter. If he cannot bring himself

within section 304 but he still kills while in a rage

well, then, he may resort to section 304A and must

demonstrate an abnormality of mind and everything

that goes with it.

If he is worse than that, well, then section 27

provides him with the defence of insanity which has
other consequences. There is no conviction and he

is ordered to be detained at Her Majesty's pleasure.

But those three sections provide a code for those

who - - -

BRENNAN J: What about section 23?

MR HANSON: 

I am sorry, Your Honour. Well, in that event, he

has to be a sleepwalker. If somebody kills in a
rage, he must bring himself within one of those three

sections, Your Honour, sections 27, 304 or 304A.

C2T21/l/SH	34	22/3/88
Whitworth

WILSON J: And do you say the concept of abnormality of

mind in 304A is the same as that in section 27

or is it a wider concept?

MR HANSON:  It seems to be wider, Your Honour. The language

is not identical.

WILSON J:  So that the two sections cannot be mutually

exclusive.

MR HANSON:  They cannot be. It is expressed in different

language, in terms of the defect of mind,

although the loss of control is expressed in the

same language.

WILSON J: Yes.

MR HANSON:  Those are our submissions, Your Honours.

MASON CJ: Yes, Mr Hanson. Mr Davies, the Court will adjourn

for a short period of time in order to determine

what course to take in this matter.

AT 11.44 AM SHORT ADJOURNMENT

C2T21/2/SH	35	22/3/88
Whitworth

UPON RESUMING AT 11.51 AM:

MASON CJ:  The Court need not trouble you, Mr Davies.

In the light of the evidence in this case,

in particular the evidence given by Dr Whiteford,

a psychiatrist called for the respondent, notably

the evidence that he gave in the form of a long

answer in the second half of page 130 of the

transcript, I am satisfied that the decision of

the Court of Criminal Appeal was correct and for

that reason I would refuse special leave to appeal

in this matter.

WILSON J:	I agree with the Chief Justice.
BRENNAN J:	I agree with the Chief Justice.
DEANE J:	Accepting that an appeal by special leave does lie to this Court from a decision of a Court of Criminal Appeal quashing a conviction, see
DAVERN V MESSEL,  I consider that the cases in
which such leave should be granted should be strictly
confined to cases of clear error in which the grant of such leave is necessary for the purposes of the general administration of criminal justice. For the reasons given by the Chief Justice, with which
I agree, this is plainly not such a case.
GAUDRON J:	I agree with the Chief Justice and with Justice Deane.
MASON CJ:	The application for special leave to appeal 1s

refused.

MR DAVIES:	We ask for costs, if it please the Court.
MASON CJ:	Now, Mr Davies, it is not the practice of the

Court, usually, to grant costs in an application

for special leave to appeal in a criminal matter.

Can you indicate why, in this case, we should depart

from the usual rule?

MR DAVIES:  Yes, Your Honour. In our respectful submission,

this was a case in which if the matter had been

heard in two parts, that is an application for

special leave followed by an appeal, it would have

been a case in which it would have been appropriate

to grant leave to appeal, had leave been granted,

only on condition that the Crown pay the costs

in any event, because it could only have been on

the basis that the construction of the section

was a matter of importance to the Crown. In our

respectful submission, that not being the case,

we were brought here to argue both bases and, in

our respectful submission, it is an appropriate

case in which costs should be granted.

C2T22/l/AC	36	22/3/88
Whitworth

MASON CJ: 

Mr Hanson.

MR HANSON: 

Your Honours, the Crown challenged the ruling

in favour of the accused, which resulted in a
conviction of the serious crime of murder being

set aside on two bases: one, a matter of law and

the other, a matter of fact, as I sought to explain

to Your Honours. In that event, it was a matter

of public importance for the Crown, firstly, to

obtain a ruling on the interpretation of the section

and, secondly, to maintain - - -

MASON CJ: 

But that is in the public interest, is it not?

There does not seem to be any reason why the respondent should have to bear the burden of that.

MR HANSON:  Well, the respondent achieved that result in

the Court of Criminal Appeal, of course, and we sought to challenge that and restore the ruling of the trial judge but, apart from that, on the

facts the Crown sought to maintain a conviction

returned by a jury for the crime of murder, rather

than manslaughter, and was entitled to come here

for that reason as well.

MASON CJ:  Of course, in civil cases we generally take the

view that if a government, the Crown or a statutory

authority seeks to have a general principle of

law ventilated and elaborated for the benefit of

the community then it should pay the costs of any

appeal.

MR HANSON:	That is so.
MASON CJ:	It seems a little strange, perhaps, that we should take a different view in criminal cases.
MR HANSON:	That has been the practiae of the Court, almost

invariably of course, in the past to refuse costs

in criminal cases.

BRENNAN J:  What is it based on, Mr Hanson?

MR HANSON:  I was just going to say, I do not know what it

is based on, Your Honour.

(Continued on page 38)

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MASON CJ: Unless we can identify the basis,and a basis

that has persuasion and conviction, there may be
a strong case for departing from it in circumstances

of this kind.

MR HANSON: Could we be heard on that at another stage,

Your Honour? If it is going to amount to a change

in the attitude of the Court, perhaps we should

have an opportunity to say something more about

it after considering the points. And looking at

its origin, if Your Honours order costs in this

case, well then the precedent is set and the

practice has been departed from.

MASON CJ:  Of course, you want to bear in mind, Mr Hanson,

that we are speaking in the context of an

application for special leave to appeal by the

Crown, that is the framework of our discussion.

MR HANSON:	Yes, Your Honour.
MASON CJ:	But still you are seeking an adjournment in order to mount a submission within that framework?

MR HANSON: Certainly, Your Honour, yes, and perhaps we

could do that in writing.

MASON CJ:  The Court is prepared to allow 7 days for you

to lodge with the Registry a submission in

writing on this question; and 7 days for you in

reply,Mr Davies?

MR DAVIES:	Thank you, Your Honour.
MASON CJ:	The Court will now adjourn. , I should by the

way make the formal order refusing the

application for -special leave to appeal - that .

is the formal order that flows frora the individual

_expressions of view by the members of the Court.

AT 11.58 AM COURT WAS ADJOURNED SINE DIE

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