Ugle v The Queen

[2002] HCATrans 77

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P61 of 2001

B e t w e e n -

MITCHELL JAMES UGLE

Appellant

and

THE QUEEN

Respondent

GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 MARCH 2002, AT 10.23 AM

Copyright in the High Court of Australia

MS A.G. BRADDOCK, SC:   May it please the Court, with my learned friend, MR R.W. RICHARDSON, I appear for the appellant.  (instructed by Aboriginal Legal Services of Western Australia)

MR K.P. BATES:   May it please the Court, with my learned friend, MR S.A. VANDONGEN, I represent the respondent.  (instructed by the Director of Public Prosecutions (Western Australia))

GAUDRON J:   What is proposed is to hear the matter of Ugle to completion and then proceed with the matter of Murray.  Is there any objection to that course?

MS BRADDOCK:   No, your Honour.

GAUDRON J:   Thank you, Ms Braddock.  Counsel are aware this matter must be finished by 4.15 today?

MS BRADDOCK:   We are, your Honour.  The case of Ugle, your Honours, in my respectful submission, does raise a fundamental question in the criminal procedure, although it appears now, upon the submissions filed by my learned friend, Mr Bates, for the respondent, that the Crown in this instance does not fundamentally differ with the view on the issue as to the appropriateness of the direction.

However, it is, in my respectful submission, appropriate still to state that in any case and every case it is fundamental to start with the proposition of what the Crown has to prove from the beginning and, in a charge of wilful murder, to be stating the very obvious.  Obviously there has to be the proof of the death and the cause of the death.  There would have to be the proof of the identity of the alleged assailant or assailants and in the case in instance, the case of Ugle, those matters were non‑contentious.

It is our submission, that proceeding logically on principle, the next step is that the death must result from a willed and non‑accidental action of the accused, that is section 23 of the Western Australian Criminal Code.  It is also obvious that there is, at that point, to be excluded any question of excuse or justification by law before one moves, in my respectful submission, to any question of the Crown negativing self‑defence and simultaneously any question of proof of ‑ ‑ ‑

KIRBY J:   So if we have a continuum, self‑defence arises later down on the continuum?  As it were, you do not get to the barrier unless you have the intention and that it is not an accident?

MS BRADDOCK:   Yes, your Honour.

KIRBY J:   There is the barrier.

MS BRADDOCK:   Yes, your Honour.

KIRBY J:   The problem I do not have quite in my own mind but it is quite critical for your appeal, is what is the difference between the intention question and the non‑accident question?  Because there were adequate directions on intention and the suggestion is in your case that there were not adequate directions on the accident question.  If accident is before the barrier, at some stage, not necessary now, I would like you to distinguish those two questions.

MS BRADDOCK:   Thank you, your Honour.  If one does not have the external elements established, that is to say, the death, the causation, the identity, then the Crown would not have got, as it were, to the first base, the first barrier.  If the Crown do not establish that death was the result of a willed action, one does not even have to move to consider intention or any other defences to be negatived.

KIRBY J:   So in the continuum, non‑accident comes before intention, does it?

MS BRADDOCK:   Yes, your Honour, in my respectful submission.

KIRBY J:   That seems curious, given that intention is such a critical feature of our criminal law.  But, anyway, you develop your argument and I will no doubt understand it better at a later stage.

MS BRADDOCK:   Your Honour, it is the difference between, if one steps into common law terminology, an act which has basic mens rea and an act where you have that act plus a specific intention.  You can have a ‑ ‑ ‑

KIRBY J:   It is very subtle.  If I have difficulty understanding it, I imagine that some jurors in Australia might have difficulty understanding it, but maybe we have to try and help everybody to understand it by our reasons.

MS BRADDOCK:   Yes, your Honour, I would hope that I am in a position to do that today and hopefully in a position to help members of juries to do that in due course.  But the submission we make is that it is a principle in all cases that this must be considered very carefully because the factual circumstances that may arise may vary so much and may be in fact so complex. 

In the Ugle Case his Honour Justice Parker in the Court of Criminal Appeal was correct in identifying three possible scenarios on the evidence and this appears at page 356 of the appeal book.  He identified that there were three possible views, the first being:

the applicant’s account that, when attacked more than once by the deceased wielding the cricket bat towards his head, he raised his right arm and hand to fend off one of the blows.  In doing this [he] pushed or hit the deceased on the arm.  While the applicant was then holding the knife in his right hand, he did not consciously use the knife to attack or wound the deceased and was not then aware he had done so.  The second view which can be seen to have been reasonably open on the evidence was that, despite his evidence –

that is the appellant’s evidence –

the applicant when confronted with the deceased wielding the cricket bat had struck out with the knife in defence of his life or against grievous bodily harm.  The applicant, of course, denied that he had deliberately used the knife.  The third was the view on which the prosecution relied; that the applicant had deliberately attacked Mr Byrne with the knife and was not acting in self‑defence at all.  On this third view –

according to Mr Justice Parker –

no possible question of unwilled act or accident arises.

GUMMOW J:   Do we not have to start at section 268, that is to say, unlawful killing?

MS BRADDOCK:   Yes, your Honour, one should begin at the beginning, but that imports ‑ ‑ ‑

GUMMOW J:   Then there is a definition of “kill” in section 270.  You are much more familiar with this than I am so I need some help.

MS BRADDOCK:   Yes, your Honour.  Those are the definitional elements of the offence.

GUMMOW J:   That is right, and where does one get mens rea other than from section 23?  In common law ideas that is the actus reus in 268.

MS BRADDOCK:   Yes, your Honour.

HAYNE J:   Section 279 takes you then into questions of intent, does it not?

MS BRADDOCK:   That is correct, your Honour.  The Codes are constructed to deal with the specifics of offences, all of which is read subject to the section on criminal responsibility.

GUMMOW J:   Yes.  One starts at 268 and then one would go to 270 and then 277, would you not, then to 278 and 279?  “Provocation” is fitted in at 281 rather than in Chapter V.

MS BRADDOCK:   Yes, your Honour.  The definitional sections of wilful murder is 278.

GUMMOW J:   Yes.

MS BRADDOCK:   But that, within the Code, is subject to the general provisions on criminal responsibility which are in Chapter V commencing at section 22.

GUMMOW J:   And then 23 draws a distinction between:

an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

This case is said to fall within the latter rather than the former, is it, I do not quite follow?

MS BRADDOCK:   Both, your Honour.

GUMMOW J:   Both.

CALLINAN J:   Both or either.

MS BRADDOCK:   Or either.

GUMMOW J:   Or either, yes.

MS BRADDOCK:   In the case of Griffiths v The Queen, which appears on our list of authorities at No 2, your Honours, at page 80, to come back to my principal submission, which is the fundamental approach that we are focusing on here, at page 80, the second paragraph commencing in the left‑hand column, their Honours Justices Brennan, Dawson and Gaudron said this:

With respect, the ultimate onus of proving all elements of the offence, including either the voluntary or criminally negligent firing of the fatal bullet, rested upon the Crown and, if the evidence available to the Crown did not discharge the onus, the appellant was entitled to be acquitted.  That is the principle clearly laid down in Woolmington v Director of Public Prosecutions.

In Woolmington, the case of homicide by shooting, the appellant gives a version of the confrontation between himself and his wife, the deceased.  He said that the firing of the gun was an accident in that whilst he was getting the gun from his shoulder and drawing it across his breast, it accidentally went off.

GUMMOW J:   This Code was enacted in Queensland long before Woolmington v DPP.

MS BRADDOCK:   We are in Western Australia at present time, your Honour.

GUMMOW J:   Yes.

MS BRADDOCK:   But that same comment would apply.  It is the reference to the evidence – and then it goes on to quote Viscount Sankey:

“When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.”

That would seem to be fundamental and translates without too much difficulty, in my respect submission, to the structure of the Code, certainly, of Queensland and Western Australia.

GUMMOW J:   There is no specific provision in the Code anticipating Woolmington, is there?

MS BRADDOCK:   Section 23 with respect, your Honour.

GUMMOW J:   That is right.  It has to be 23, does it?

MS BRADDOCK:   Yes, has to be.

CALLINAN J:   Ms Braddock, we had a case in this Court, I think it was from Queensland, in which it was argued that the jury’s finding – it must have involved a finding of intention ‑ and therefore that finding would have negatived any other defence at all.  It is my recollection that it was decided I think by a narrow majority that nonetheless a different direction should have been given, and a retrial was ordered.  It was a Queensland case.

KIRBY J:   Was that Jones?  Was that the case in the prison?

CALLINAN J:   Mr Rafter may remember.

MS BRADDOCK:   Mr Rafter may be in a better position to assist in terms of recollection of the facts.

CALLINAN J:   My recollection may be plainly false.

HAYNE J:   No.  Justice McHugh and I dissented.  It concerned the jury having been specifically directed about intent in a particular way.  The direction was deficient, in that a further alternative should have been given to the jury.  It was not.  The majority held that there was a miscarriage.

MR RAFTER:   That was Gilbert.

CALLINAN J:   That is right, yes.  Is Gilbert on anybody’s list?

GAUDRON J:   That is what we just looked at.  Griffiths, is it?

CALLINAN J:   No, Gilbert it was, was it not?

MS BRADDOCK:   Gilbert I cannot assist with at the present moment, your Honours.  Of course, it is not in every case that the issue may arise, or any analysis of the issue may arise, because in a great majority of cases it may well be there is an admission that the accused did in effect do what was alleged by the Crown and then it is very clear that it is either a question of justification, self‑defence or something of that kind.  But what we have here ‑ ‑ ‑

HAYNE J:   No.  Again, is that not to elide the two issues which you say must be kept separate?  There may be no issue that the accused person intended to fire the weapon.  The accused person pulled the trigger and makes no bones about the fact that he or she intended to pull the trigger, and then there may be a very real and lively debate about with what intention that was done.  But in this case the facts as presented in evidence raised as an issue an issue about whether the striking with the knife was accidental or an event that occurred independently of the will, presumably in the sense that, to caricature it, the deceased ran onto the knife rather than the accused pushed the knife into the deceased.

MS BRADDOCK:   Your Honour Justice Hayne is, with respect, quite correct.  What I was seeking to say is that, whilst my initial submission was that as a matter of fundamentals in every case when one is running through the elements that the Crown has to establish section 23 is included in terms of the Code structure in criminal responsibility, in practice in very many cases it may not be that the issue arises and therefore would not be calling for a direction.  Here in this case the defence was, to adopt Justice Hayne’s position, “I didn’t do what the Crown alleged I did in the manner in which they alleged I did it.  What I did was something significantly different but I did it in self‑defence”.  So you have a complete departure and the foundation for the three possible views that Justice Parker came to define.  He did not use the knife as a weapon.

CALLINAN J:   What was the act or omission which occurred independently of the exercise of the will?

MS BRADDOCK:   The stabbing.  The act that the accused admitted in his evidence to doing was a pushing.  The act that the prosecution alleged was a stabbing.

CALLINAN J:   What was the event which occurred by accident?

MS BRADDOCK:   The event would be the death, your Honour.

HAYNE J:   Or would the event be the penetration of the body by the knife?

MS BRADDOCK:   Leading to the death.

GAUDRON J:   Penetration of the heart by the knife, surely?

MS BRADDOCK:   Yes, your Honour.

KIRBY J:   The death is really at the end of the continuum.

MS BRADDOCK:   This is not a case in which the Crown and defence agreed at all on what physically happened.  It was not just a dispute over the mental elements.  In this particular case, on the evidence, there was no eyewitness account to assist directly describing the movements of the parties at close quarters.  My submission basically is this.  It is not every case that will necessarily require a specific section 23 direction where there is no voluntary act put in question, there is no issue raised and it is plain, but it is implicit, in our submission, in every case that the Crown has to negative that unless it is clear by admission or incontrovertible evidence.

It is our submission also that you do not truly get to consider intention until the voluntariness of the act is established.  To support that, I would further submit that, in fact, it is dangerous to put it the wrong way around because, if it is permissible to reason that there is intent and therefore there must have been an involuntary act, albeit in perhaps very peculiar factual circumstances, it is possible that an intention might be found but the circumstances, the external events and the circumstances, might not prove a voluntary act.  They are different elements, your Honours, in essence.  It is wrong and dangerous, in my submission, to have a situation where you pull the case up by its bootstraps and say, “You have intention, therefore you must have had a voluntary act”.

If you are giving the jury the tools to analyse what are often difficult cases with often imperfect evidence, the tools of analysis are, in my submission, very important.  It is a different sort of reasoning and we would accept that the different reasoning could lead to the same result such as ‑ ‑ ‑

KIRBY J:   As I understand the Crown’s submissions to us, this is not a case about section 23.  The Crown agrees that the direction ought to have been given but it is said that the error happened at the trial because counsel for the appellant said that no reliance was placed on the second limb of section 23.  So this is not really a case, at least on the written submissions, of section 23 at all; it is a case on the proviso.

MS BRADDOCK:   Yes, your Honour, that is right.  The question which still, of course, arises is:  therefore, what is one to make of the decision of Justices Parker and Wheeler in the Court of Criminal Appeal of Western Australia?  On a basic reading of that decision, and perhaps even a superficial reading of that decision, one would, in my respectful submission, suggest that it might well be taken for authority for the proposition that if you give a proper direction on intent, you do not need to worry about section 23. 

HAYNE J:   I read the respondent’s submission as conceding that that is not right.  Now, we will later hear, presumably, if the respondent puts some other view on it, but I read it as clear concession, not right.

MS BRADDOCK:   That is for the reason that it clearly demonstrates as a proposition faulty thinking, in my respectful submission.

KIRBY J:   Do you understand that the respondent adheres to that submission in this appeal?

MS BRADDOCK:   As I understand it.

KIRBY J:   What is the language of the proviso in Western Australia?  What is the section?

MS BRADDOCK:   Section 689, your Honour, which reads:

The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

Classic proviso language, your Honour.

KIRBY J:   But the case that you would run would be that wrong decision on a question of law - do you suggest that there was a miscarriage of justice?

MS BRADDOCK:   Yes, your Honour.  Perhaps if I might return and develop the analysis side of the argument.

KIRBY J:   After all, your client took it upon himself to take a knife in to a brawl that had nothing to do with him and there was a proper and appropriate direction on intention.  It does not seem to scream for injustice but it may be that there is the error of law that might itself be an injustice.

MS BRADDOCK:   Yes, your Honour.  The Crown case was or the force of the Crown case was the wound.  The strength of the Crown case, in my reading of the situation, was that it was a forceful, fatal wound; that the appellant, Mr Ugle, had the knife and was obviously involved at close quarters with the deceased.  The circumstances indicated, in effect, paraphrasing, that clearly he went looking for trouble on that night, none of his business, with the knife.  That is the Crown case at its highest.  There was no independent evidence that the accused, Ugle, had made any threats or promises or been present when any threats were made by his co‑accused.  There was no ‑ ‑ ‑

CALLINAN J:   Why would he go back with him?  Haworth had first said, apparently, that he was going to come back to kill Mr Byrne, then he went to where he found your client and your client returned with him.  Why is it not a reasonable inference that he returned with the intention and having the purpose of participating in a killing of Byrne?  The evidence might even allow that inference.

MS BRADDOCK:   It might be one inference, with respect, your Honour, but it is certainly not the only available inference.  There was evidence from the appellant himself that, in effect, he went back for the protection of Haworth and evidence that ‑ ‑ ‑

CALLINAN J:   But Haworth would not have needed protection if he were not returning to do some harm to Mr Byrne.

MS BRADDOCK:   Precisely, your Honour, but that does not necessarily advance the Crown case further than those were the circumstances.  The Crown case has to prove beyond reasonable doubt what the appellant did, that that was a willed act and that it was done not in self‑defence, and with what intention it was done.  There is inferential material but inferences being such as they are it is certainly not the only inference that might be open, that he went back there with the intent to kill, and by their verdict that was not what the jury found.  The appellant was convicted of murder, not wilful murder, therefore, the jury found that he had the intent to do grievous bodily harm, not to kill.

KIRBY J:   In a sense the weakness of the case of self‑defence in circumstances where your client went back into a brawl that had nothing to do with him made it all the more important that the second limb was presented for the jury’s determination because it is not a very strong self‑defence case where a person having no involvement in the earlier part of the fracas picks up a knife and walks into the battle, to then say he was doing it in self‑defence.  Was that the self‑defence case you ran or was it that it was self‑defence, being armed with a knife for a frightening purpose, that he was threatened with the cricket bat?

MS BRADDOCK:   Your Honour is correct, your Honour’s last proposition is correct.  He was armed with the knife for ‑ ‑ ‑

KIRBY J:   It is a pretty unequal struggle between a cricket bat and a knife.

CALLINAN J:   Plus a brick or a piece of wood that ‑ ‑ ‑

MS BRADDOCK:   It was the co‑accused who ‑ ‑ ‑

CALLINAN J:   - - - who had that, yes.  Two against one, one of the two with a knife, and the other of the two with a brick or a piece of timber.

MS BRADDOCK:   Those were separate parts, it would appear, of the action and furthermore those are issues that would go to whether it might have been excessive self‑defence, in the circumstances ‑ whether he was being attacked in the way he was described.

GAUDRON J:   Ultimately, there was no admission that it was a willed act.

MS BRADDOCK:   There was no admissions at all.

GAUDRON J:   There was no admission as to intention of any sort.

MS BRADDOCK:   No, your Honour.

MS BRADDOCK:   No, your Honour.  One is left to wonder ‑ ‑ ‑

GAUDRON J:   And both volition and deliberate as distinct from accidental were matters to be inferred from the evidence?

MS BRADDOCK:   Yes, your Honour.

GAUDRON J:   And the evidence did not preclude a finding that the prosecution had not proved those beyond reasonable doubt, you say?  The evidence; forget about the jury’s finding, the evidence.  The evidence was not such as to preclude the jury’s lack of satisfaction?

MS BRADDOCK:   No, your Honour.

GAUDRON J:   Well now, did your client through his counsel say he was not relying on section 23; what is that about?

MS BRADDOCK:   Your Honour, there was an exchange prior to the summing up and it appears in the appeal book commencing at page 251.  The judge raised the matter on that page, effectively putting it that it was substantially a self‑defence defence and on page 252, counsel who appeared at the trial, Ms Wager, said this in response to his Honour’s question about whether he should direct on accident and unwilled act, he saw problems with that:

Yes.  Your Honour, the whole matter of unwilled act, in my submission, really arises from cross‑examination and there was a very brief bit of evidence‑in‑chief in relation to that.

And then they refer to the passages in the evidence and on the following page at page 253 at about 10, the judge said:

He didn’t realise that he had stabbed him but how does that support an unwilled act?

Ms Wager:  Your Honour, the evidence, in my submission, would indicate that he is talking about a push as opposed to a stabbing motion.

And further:

Ms Wager:  So indicating that he, therefore, is unaware that he has the knife in his hand; that he is using the knife in that way.

And then they again quote from the evidence on the balance of that page.  The following page 254, your Honours:

Ms Wager:  Yes.  It is my submission that reading page 252, the answers in cross‑examination, together with those on 237 the push indicated that he wasn’t aware that he had stabbed him, meaning he wasn’t aware that he had the knife at the time.

Your Honours, they seem to have been discussing, and perhaps somewhat distracted from the real point, as to whether the accused had forgotten he had the knife in his hand.  There is a Western Australian decision by the name of Duffy involving a glass in the hand, which raises similar questions and might have been in the back of counsel’s mind at that point.

GUMMOW J:   Well Duffy is referred to at the bottom of 254.

KIRBY J:   In the middle of the page Justice Heenan said:

Now, you mentioned accident.

Now there is a dispute between you, I think, as to whether or not accident was not pressed or was withdrawn.

MS BRADDOCK:   Your Honour, I think I would have to say this, that Ms Wager did not abandon certainly the first limb of section 23, that is the question of voluntariness, although she was, as it were, advised by the judge that he did not think he was going to direct on that and that was as far as she probably was able to take it.

KIRBY J:   Where is that?

MS BRADDOCK:   In the middle of page 254, the judge says this.

KIRBY J:   I just do not understand in a case ‑ well, I do not understand why, when you have this lovely Code – it is not like other States where it is all over the place – and you have a section and it is there and there are the accidents in it, that if your case was that he was not aware that he had a knife or that he was not aware that he had stabbed the man that accident did not come to the attention for good or bad or for use or not use of those at the trial.

MS BRADDOCK:   Yes, your Honour, you would think you would almost have a checklist with the Code and go through it, as it were, section by section.

KIRBY J:   That is the great advantage of a Code.

MS BRADDOCK:   Yes, your Honour.  His Honour Justice Heenan at 20 on 254 of our appeal book:

It’s a matter for me, Miss Wager, but that’s the only basis upon which you say it’s an unwilled act, is it?

WAGER, MS:   It is, your Honour, yes.

and that is referring to the previous discussion.  Then his Honour says:

I’m inclined not to direct the jury specifically as to that.

She stops.  “Very well”, she says.  Now, with respect, I do not regard that as a complete concession by counsel, having had that particular exchange with the judge.

KIRBY J:   Where is the “Very well”?  I have lost you.

MS BRADDOCK:   Page 254, middle of the page, up to 25.

KIRBY J:   I see, yes.

MS BRADDOCK:   Then his Honour goes on to speak further of “accident” and that I construe as, in the circumstances, being the second limb of section 23 and that is where she says:

I certainly don’t suggest it was accident, no.

KIRBY J:   That is pretty clear, is it not?

MS BRADDOCK:   It is, your Honour, it is.  But having said that, your Honour, in the heat of the fray it does not remove from the judge his obligation to see on the evidence whether the defence is run in that way or not, whether the direction should have been given because, as ‑ ‑ ‑

GUMMOW J:   Now, Justice Wallwork dissented, did he not?

MS BRADDOCK:   Yes he did, your Honour.

GUMMOW J:   So he would have ordered a new trial.  Is there any consideration by him of the proviso?  I cannot find it but it may be there.

MS BRADDOCK:   No, your Honour, he took an adverse view of various aspects of the summing up in relation to not only section 23 ‑ ‑ ‑

GUMMOW J:   Also self-defence.

MS BRADDOCK:    ‑ ‑ ‑ but in relation to aspects of the weighting and the tone of the direction on self-defence.  Certainly, in my submission, Justice Wallwork was also incorrect in that regard that the balance of that direction on self-defence almost reversed the onus of proof in places and for that reason and for the reason that his Honour Justice Wallwork considered that there should have been a direction on section 23, he considered that taking those things together, there really had not been a trial according to law and effectively ordered a new trial on that basis, did not consider that the proviso would apply.

The significant comment by his Honour Justice Wallwork is the passage where he notes Justice Heenan making the reference to the fatal blow being struck.  Clearly the tone of the summing up was effectively assuming that a fatal blow had been struck.

GAUDRON J:   That is right.  Once you get to “the fatal blow was struck”, you have virtually eliminated for all purposes any question of whether it was a willed act.

MS BRADDOCK:   Yes, your Honour.  When you read the summing up as a whole, that is the impression that you are left with.  But returning to your Honour Justice Gaudron’s focus on the case and the strength of the case, it is of interest to note that the jury did convict of murder, not wilful murder.  It does raise the question of how that might be, because the Crown case was put on a high basis that this was a deliberate killing premeditated in the sense of the two having gone out with that intent to kill, an attack upon ‑ ‑ ‑

KIRBY J:   It is not only kill, it is to cause really serious harm or grievous bodily harm, is it not?  Is that the language of the Code?  What is the section ‑ ‑ ‑

MS BRADDOCK:   That is the language of the Code, your Honour.

KIRBY J:   What is the section, the definition of “murder”?

HAYNE J:   But you are making a point about distinguishing between “wilful murder” and “murder”, between 278 and 279.

MS BRADDOCK:   That is correct, your Honour.

HAYNE J:   Wilful murder being intent to kill.

MS BRADDOCK:   That is correct and the Crown put a very strong case of it being wilful murder, ie, murder with intent to kill.  The verdict was murder which is founded upon only intention to cause grievous bodily harm.  Given that the evidence ‑ ‑ ‑

KIRBY J:   How do we know that?  Is the verdict taken separately on different counts relying on different sections?

MS BRADDOCK:   Because they are alternative verdicts in Western Australia, your Honour.  Upon a charge of wilful murder there are four possible verdicts:  guilty of wilful murder, guilty of murder, guilty of manslaughter and not guilty.  The jury are asked specifically to return those verdicts.  So you know in Western Australia upon what basis the jury has convicted.

KIRBY J:   Yes, it seems very sensible.

MS BRADDOCK:   But it begs the question in this case, “How did they come to that conclusion?”  They cannot have accepted the Crown case as the Crown case was put to them.

KIRBY J:   Is this not all beside the point?  If they were not told about “accident” and they were told that – their minds were focused on intention and self‑defence relevantly, then the critical question is whether, in the light of the concession by counsel then appearing for the appellant, this Court would say that there has been a fundamental miscarriage of the trial in that a critical element of the crime, of which your client has been convicted, was not properly explained to the jury.

MS BRADDOCK:   Yes, your Honour.  I would seek to persuade the Court that that is the case.  Not only that a significant element was not explained to them, but the consequence of that was that they were deprived of a different basis of analysis of the facts.  They were deprived of the focus of, “Well, what actually happened?  What did the accused do, and was it a willed act?”  They were very much focused onto the self‑defence aspects of the case and they, therefore, did not have the materials, building materials, to say, “What do we find?  Stage 1 stage 2, stage 3.”  They were taken really, almost directly, to self‑defence by the way in which the charge was put.

HAYNE J:   Your argument in essence comes down to four propositions, it seems to me.  One, the evidence was open to three constructions ‑see Justice Parker at page 356 paragraph 63 ‑ of which one was a construction in which the jury might doubt the element “willed act”.

MS BRADDOCK:   Yes.

HAYNE J:   Two, the element “willed act” is separate from questions of intent.  Three, the jury considered “intention” but not “willed act” because they were not instructed about it.  Four, therefore, the verdict about intent tells you nothing about the separate issue.

MS BRADDOCK:   Fundamentally flawed, your Honour.

HAYNE J:   That is it.

MS BRADDOCK:   And his Honour, Justice Heenan effectively took a short cut and usurped the function of the jury in part ‑ ‑ ‑

HAYNE J:   No, His Honour was trying to do what Alford v Magee tells his Honour to do, namely identify the issues in the case.  He identified it as a self‑defence case, and that is undoubtedly where the weight of your client’s case lay.

MS BRADDOCK:   It did.

HAYNE J:   But you had this awkward set of answers given in cross‑examination which were not really consistent with the main thrust of the defendant’s case but which raised, as a factual issue, willed or not willed.

MS BRADDOCK:   His Honour Justice Parker in the Court of Criminal Appeal at page 358 at about 37, said this ‑ ‑ ‑

KIRBY J:   Can I just ask you to pause there, and I am going back, following up what Justice Hayne has said.  I may be just a little slow on this, but I would like to know the difference between the intention to perform the act and the lack of will to perform the act.  It sounds like needles and angels to me, but it may be that the Code requires that distinction to be drawn.  I am just wondering how would one explain it to a jury.

GAUDRON J:   Is it as simple as this, Ms Braddock.  Once you get to intention it assumes the truth of what had to be proved, and you see it in this case by the direction, “With what intention did the accused strike the fatal blow?”

MS BRADDOCK:   Yes, your Honour.  You are assuming what you have to prove and working backwards from it.  The difficulty raised by his Honour Justice Kirby is adverted to in the decision of Falconer which appears on our list at No 3.  It is not a new problem.

KIRBY J:   Where is it referred to?  I did not catch the case.

MS BRADDOCK:   In the case of Falconer 171 CLR 39.

KIRBY J:   Does this touch on this point of distinction?

MS BRADDOCK:   Yes, your Honour.

KIRBY J:   Well, it will all be here then.

MS BRADDOCK:   It may be that Chief Justice Mason and his Honour Justice Brennan may have something to assist your Honour at the second paragraph:

Mrs Falconer is criminally responsible for discharging the gun only if that act were “willed”, that is, if she discharged the gun “of [her] own free will and by decision” –

quoting Justice Kitto in Vallance or quoting Chief Justice Barwick in Timbu Kolian, “making of a choice to do”.

The notion of “will” imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature.  In Mamote‑Kulang and Timbu Kolian Windeyer J added “some element of intention” to the notion of will but, with great respect, such an addition might case confusion between will and intent in the Code in much the same way as voluntariness is liable to be confused with general intent in the context of the common law –

referring also to He Kaw Teh and to Ryan.  Chief Justice Barwick in Ryan noted:

that intent usually relates to consequences, whereas will relates to the act done (the deed, as his Honour calls it) the doing of which is ordinarily presumed to have been willed.

Your Honours, it is:  does your mind go with the act that you perform at the time?  Do I pick up the book knowing that I am picking up the book or with the intent of throwing it at your Honours, with respect?  The difference is there.  If I am picking up the book simply to pick up the book, my mind

goes with it.  I may or may not have formed any intention as to what I am going to do with it.

KIRBY J:   I do not think we need the Bar to throw books at us.

MS BRADDOCK:   I am sure, your Honour.  Probably it should be the other way around.  That is the distinction.  The intention is not the intention in the Code sense of to bring about the result.

KIRBY J:   Justice Brennan took part in that and his Honour was from a Code State.

MS BRADDOCK:   The intention is specific intent at common law.

KIRBY J:   I can see the distinction.  I think it is a very subtle distinction myself, but no doubt that will be developed in the Crown’s submissions.

MS BRADDOCK:   One can imagine situations where ‑ ‑ ‑

GAUDRON J:   Ms Braddock, we think at this stage we might be assisted by hearing from the respondent.

MS BRADDOCK:   May it please the Court.

MR BATES:   May it please the Court, the main question which is raised by the appellant is whether the failure to direct on both limbs of section 23 and also section 266 constituted a fundamental error such that the proviso could not be applied.

GAUDRON J:   Why does it have to be a fundamental error?  Where did this language come from?

MR BATES:   “Fundamental error” comes from the ‑ ‑ ‑

GUMMOW J:   It does not come from the section.

MR BATES:   It does not come from the section, no; it comes from the decision of the ‑ ‑ ‑

GAUDRON J:   Why is not the test simply in relation to the Code, whether there was a chance of acquittal that was fairly open?

MR BATES:   We are really looking at two questions, fundamental error comes from Wilde ‑ ‑ ‑

GAUDRON J:   Yes, well, the Court was there talking about a different thing.  It was talking about when the whole trial fails.  For example ‑ ‑ ‑

KIRBY J:   If a judge forgets to give a direction on “beyond reasonable doubt”.

MR BATES:    Yes, I suppose the argument against us on the Wilde point is that there is ‑ ‑ ‑

GAUDRON J:   We are talking about the jury is not properly empanelled; the charge is wholly wrong, for example.  Let us assume the trial judge directs a jury on a charge of murder when the indictment is armed robbery, something of that nature.

MR BATES:    The way we saw that fundamental error could apply against the respondent in this case is that a failure to direct on elements of the offence may be seen to constitute a fundamental error because the accused has not had a trial according to law.  That is why we have addressed it in two areas, addressed it by looking at fundamental error and also addressed it by looking at whether he has lost a chance for an acquittal by virtue of the fact that elements of the offence which we say ‑ ‑ ‑

GAUDRON J:   Now, that would seem to be the real issue, would it not?

MR BATES:    All right, well, I can address it in terms of whether he has lost the chance of an acquittal ‑ ‑ ‑

KIRBY J:   Correct me if I am wrong ‑ we have looked at this even in my time here ‑ the principle of interpreting a code, as distinct from interpreting it in statutes in the statute States, is that you are supposed to concentrate wholly within the Code, are you not?

MR BATES:    That is correct, your Honour, yes.

KIRBY J:   Therefore, in so far as things are said in a New South Wales context about fundamental error and the explanation of the common form provision for provisos, does that apply equally in the Code formulation or do we just have to ‑ I do not want to make a mistake as being a non‑Code person of misconstruing the Code.

MR BATES:    Yes, we say that those concepts of fundamental error and lost chance of an acquittal ‑ fundamental error coming from Wilde and lost chance of an acquittal coming from Mraz ‑ those notions are imported into the Code and the Code is interpreted by reference to those concepts.  So we say that those concepts, as espoused in those two cases, are relevant and applicable to determining whether the proviso under the Code is applied. 

But if I could deal with, firstly, the first limb of section 23, we say that the accused has not lost a chance for an acquittal for two reasons and, essentially, those reasons are that the factual issues relating to the first limb of section 23 were put to the jury in the direction about the appellant’s version and, secondly, we say that the jury’s verdict was inconsistent with an unwilled act.  Now, if I could address those two issues in turn.  The first issue is we say that the factual issues relating to the first limb were put to the jury in the direction about the appellant’s version.  On the appellant’s version, the jury were told, in effect, that if they accepted it or had a reasonable doubt about it then they were to acquit.

GAUDRON J:   That is hardly a correct direction, is it?

MR BATES:    What we would say is that that direction, which was given in the context of self‑defence, really dealt with ‑ ‑ ‑

GAUDRON J:   That is right, it was given in the context of self‑defence and they did not have to believe his version, in any event, did they?

MR BATES:    No, well, it was ‑ ‑ ‑

GAUDRON J:   I do not know what having a reasonable doubt about it, if they thought it was a reasonable possibility, they should acquit ‑ ‑ ‑

MR BATES:    Yes, what we say is that it was only on the appellant’s version that the first limb of section 23 arose ‑ ‑ ‑

GAUDRON J:   That cannot exactly be right, Mr Bates, can it?  I mean, undoubtedly, I think, and it was said clearly at Falconer, there is an evidentiary onus on an accused to raise 23 considerations, but once they are raised on the evidence it is for the prosecution to negative it.  That is what Falconer said.

MR BATES:   Yes.

GAUDRON J:   There is not much doubt it was raised on the evidence, you accept that?

MR BATES:   We accept that and we accept that the first limb should have been left and now we are seeking to persuade the Court that the appellant has not lost a chance of an acquittal because ‑ ‑ ‑

GAUDRON J:   Yes, I understand that, but you are seeking to do it by a direction which was given in the context of self‑defence and which, if you relate it to this issue, reverses the onus of proof and never at any stage ‑ or at least in one part reverses the onus of proof, and I do not know what reasonable doubt about it means – and at no stage indicates that it is for the prosecution to negative that by proving positively, beyond reasonable doubt, that it was a willed act, willed and deliberate.

MR BATES:   Yes.

GAUDRON J:   That is right, is it not?

MR BATES:   That is right, but what we say is that effectively the direction did give the appellant the benefit of his version of events and effectively gave the appellant the full benefit of the first limb of section 23 because, in deciding whether they accepted his account or had a reasonable doubt about it, the jury necessarily decided, we would submit, that the stabbing was a willed act and given the express direction to acquit if they accepted the appellant’s version or were left in a reasonable doubt about it, they necessarily decided that issue against the appellant.  That is the submission that we would make, that essentially the factual issues relating to the first limb were put to the jury in this particular direction about the appellant’s version.

HAYNE J:   Where do I find that direction?  What page of the appeal book do I find it?

MR BATES:   Yes, I will take your Honour to that direction.  It is at page 279 of the appeal book and it commences between line 20 and line 25 – and these are the passages that were quoted by Justice Parker in his decision at page 357 to 358.  I will not read it all, but the learned trial judge explains the version of the appellant Ugle at line  30, there:

The version of the accused Ugle is that the fatal wound must have been inflicted when he as trying to defend himself against a life‑threatening attack by a man wielding a cricket bat.  He told you that that man, clearly the deceased, had bull‑rushed him, had hit him once, landing a blow to him arm when he held it up to defend himself, and going so far as to hit the side of his head.

Ugle told you that the man was about to land a second blow aimed at his head and in those circumstances it is put to you on his behalf that Ugle had no choice but to do what he did.  He had no choice but to defend himself.  What did he do to defend himself?  Ugle told you that he pushed the other man, he tried to fend him off, and he told you that as far as was aware he had hit the other man’s arm, so on his version – although it’s quite clear that he had a knife in is hand at the time, on his version Ugle did not use the knife as a weapon.

So his version was clearly put that he did not use the knife as a weapon.  Then the important part at 280:

If that were so, you would be entitled to take the view that the force which he used was not likely to cause death or even serious harm and was more than reasonable in the circumstances, so what Ugle was doing was acting lawfully in self–defence.  So, members of the jury, if you accept that version you will find that the killing was not unlawful and you will find not only Ugle but also the co‑accused, Haworth, not guilty.

Then over the page, at the top of page 281, the learned trial judge went on to say:

Even if you don’t accept that version, even if you don’t believe Ugle positively, that’s not the end of the matter because you will remember the onus of proof in this trial rests upon the crown.  It is for the crown to prove the case against each of the accused.  Even if you don’t necessarily believe Ugle you will not automatically find that the killing was unlawful.  It’s important that you look at all of the evidence in order to see whether the prosecution has proved beyond reasonable doubt that the killing was unlawful.

HAYNE J:   Now, where in that do we find the version of events described by Justice Parker as being, while the applicant was then holding the knife in his right hand, “He did not consciously use the knife to attack or wound the deceased and was not then aware he had done so”?  Do we find that in that charge?

MR BATES:   There was another part of the charge as well that his Honour Justice Parker quoted and that was at page 266 through to 267.  What Justice Parker did, he quoted the passages that I have already read and he also, before he did that, he quoted the passages at the bottom of 266 and the top of 267 and those passages read, in the last paragraph on 266:

Ugle told you that he pushed, he fended off.  He said at another stage he actually hit the deceased on the arm.  He told you that he did not know that he had stabbed him and in fact although you were not told when he realised that there was blood on the knife he told you that certainly he did not know, while he was directly at the scene, that he had stabbed the deceased man.

So you need to consider perhaps, members of the jury, what degree of force did he use, and in particular, what was he thinking at the time?  There’s a world of difference, isn’t there, between actually stabbing at someone with a knife and pushing that person although one is holding a knife.  You will probably need ‑ ‑ ‑

HAYNE J:   And it is the next sentence which absolutely stands in your way, is it not?

You will probably need to ask yourselves –

The case against you is, they had to ask themselves.

MR BATES:   As well as that passage there was another reference to deliberate blow and that is at page 281, so the reference to deliberate blow is dealt with in another part of the charge at page 281 and it is in the middle paragraph at about line 20, and this was put to the jury by the learned trial judge:

So you would need to ask yourselves, members of the jury:  is that wound consistent with the version given to you by Ugle?  Could the fatal injury to the accused have happened as Ugle said it did, bearing in mind the nature of the wound?  Did it happen as he said or must it have been caused by a deliberate stabbing of the deceased man?  That, members of the jury, is a question that I suggest that you need to ask yourselves.  It’s an approach that probably, inevitably, you will find is necessary to take.

KIRBY J:   Can I just add that at page 328 the jury were obviously worried about this, because they came back and asked the question, saying they were getting:

painfully close to coming to a unanimous decision.

But they asked for clarification of this, and I do not see anything in the redirection at 328 which clarifies this at all.  This is when the jury were brought back, just before they retired.  So it is obviously something that was of concern to them.

CALLINAN J:   Mr Bates, really do you not have to deal with Gilbert’s Case?  In Gilbert’s Case exactly this sort of argument was advanced, that the jury’s finding necessarily negatived defences of the kind which you are talking about here.  Now three Judges of this Court specifically endorsed what was said by Justice Pincus in the Court of Appeal in Queensland who said that the jury were entitled to be directed properly and that it was not an answer that the necessary elements must have been found.  Do you not really have to deal with that?

MR BATES:   Yes, I am not familiar with Gilbert’s Case, but ‑ ‑ ‑

CALLINAN J:   Well, what Justice Pincus said in the Court of Appeal is summarised - it is Gilbert v The Queen (2000) 201 CLR 413 – in my judgment at pages 435 and 436, paragraph 76. The Chief Justice and Justice Gummow, in a joint judgment, specifically in paragraph 21 at page 422, approved the reasoning of Justice Pincus and I did subsequently in my judgment. Now, I think you really have to give some consideration to this, that the thrust of it is that juries do not act mechanistically, that they are entitled to be directed in terms of available defences and that it is not to be assumed in a case of this kind that the finding necessarily negatives other defences in respect of which they were entitled to be directed.

MR BATES:   What we would say is that surely each case must turn on its own facts and we say that on the facts of this particular case ‑ ‑ ‑

CALLINAN J:   Gilbert looked a very strong case.  In fact, if you look at the reasons for judgment of the dissenting Justices, Justices McHugh and Hayne, you can see that it was a strong case, and their Honours took a different view.  The result was, notwithstanding how strong a case it was, that there should be a retrial.

KIRBY J:   The only difference is that in this case counsel then appearing for the accused at the trial in a sense said that she did not want to put accident.

MR BATES:   Yes, counsel disavowed the second limb of accident but not the first limb.

KIRBY J:   I feel a bit sorry for the trial judge.  He has counsel saying this and he then has to decide whether the law requires him to give a direction which counsel has disavowed.

GAUDRON J:   Even putting aside accident, there is voluntary act.  Now, is not the real difficulty about you in this case that, as was pointed out in Falconer, that is the sort of thing that is assumed.  Everybody assumes as a matter of ordinary experience that if you do something, you do it – your mind accompanies the act.  Because of that assumption, when it is raised, I would have thought it becomes, on the evidence – even if not raised by way of direct submission, although it was raised by way of direct submission here, when it is raised, it is critical for it to be adverted to because otherwise it will simply be assumed, and is assumed if you say, “With what intention did he strike the fatal blow?”, for example, unless you direct attention earlier.

MR BATES:   What we say is on the facts of this case is that the jury’s verdict of murder, that is, a finding of an unlawful killing with an intent to do GBH, is inconsistent with the act being a willed act on the facts of this particular case.

GAUDRON J:   Of course it is, but you have to say they would inevitably have reached that decision if they had considered the question whether you had discharged the onus of proving it was a willed act.

MR BATES:   We say by their finding, the jury would have inevitably found that this was a willed act on the facts of this case.  We accept that will and intent are different concepts, but what we say in the circumstances of this case, a finding that the appellant stabbed the deceased intending to do him grievous bodily harm, was necessarily inconsistent with a positive finding or the holding of a reasonable doubt as to whether the appellant’s act of stabbing the deceased was willed and voluntary.  That is not to say that in every case where specific intent is an element, a direction on intent will be sufficient, but a direction on an intent and a finding of an intent to do GBH on the facts of this case we would say was sufficient.

Now, Justice McPherson in Murray v CCA recognised there are cases where it might not be sufficient, such as dissociation cases and cases of that nature, but we say on the facts of this particular case a finding of intent to do GBH necessarily involved a process of reasoning that excludes an unwilled act.  We say that a finding of intent to do GBH necessarily excludes that the act was unwilled and, therefore, the failure to direct on the first limb of section 23 made no difference and that the jury would have inevitably have convicted.  That is the submission that we make.

The second submission we make in support of the proposition that notwithstanding the failure to direct on accident, the proviso should be applied and that a jury inevitably would have convicted.  So we raise the two issues.  The first, that the factual issues relating to the first limb were put in those passages in the direction concerning self-defence and, secondly, that the jury’s verdict was inconsistent with an unwilled act on the facts of this particular case because they necessarily ‑ ‑ ‑

GAUDRON J:   It is also inconsistent with accident, is it not, in the way you put it too?  If you are right that the jury’s verdict was inconsistent with unwilled act, it was also inconsistent with accident.

MR BATES:   Yes, that is correct, your Honour.  If I can move on now and deal with the second limb of section 23, where the event is as a result of an accident.  Looking at this question, what we say is that we also rely on this, the previous direction to acquit if they accepted or were left in a reasonable doubt as to the appellant’s version, and we say that on the facts of this case that that direction was favourable to the accused because it sheltered the appellant from the jury having to look at the foreseeability questions.  So if the jury accepted or had a reasonable doubt about the appellant’s version, then they were told to acquit without having to consider any questions of foreseeability which would have to be considered if the second limb of accident was left to the jury. 

So we say that on the appellant’s version that the jury would have inevitably convicted because they were told that if they accepted or were left in a reasonable doubt as to his version, they should acquit and that that version sheltered the appellant from having consideration given to foreseeability‑type issues. 

As to the other two possible views of the evidence, those views involved a deliberate stabbing.  In this particular case there was no evidence from the appellant that he did not foresee death and we agree with the reasoning of Justice Parker that ‑ ‑ ‑

GAUDRON J:   Did not foresee death as a consequence of what?  This seems to me to raise the issue, as a consequence of what?  As a consequence of having a knife in his hand?  As a consequence of what?

MR BATES:   The position is simply that he did not foresee death at all and the jury necessarily rejected or were not left in a reasonable doubt as to his version, therefore, this is a case of a ‑ ‑ ‑

GAUDRON J:   Now, let us stop there because that repeats what I think is an error in the summing up.  They have rejected his version – did not accept his version you said.  We can assume that is right, but again that was not the question for them, was it?  The question remained throughout whether the Crown had proved the elements beyond reasonable doubt and in that process had negatived the suggestions – and it did not have to be higher than a suggestion – that it was an unwilled act or it was an act done in self‑defence.  I leave accident out of account because it was not relied on.

MR BATES:   Yes, and we say that – and I am dealing now with the second and third versions of the events – they were versions that involved a deliberate stabbing.  His Honour Justice Parker said there were three versions:  there was the appellant’s version, where he said that he was fending off with a knife in his hand; there was the version of a deliberate stabbing in defence of life or against grievous bodily harm; and the third version was simply a deliberate stabbing, which was the Crown case. 

We say that the second and third versions are based on the premise that it was a deliberate stabbing.  On those versions of events, the question of the second limb of accident cannot be said to realistically arise because when one has regard to the fact that the act is the penetration of the chest, the stabbing, the second limb of accident does not arise on the facts where there is a deliberate stabbing on those second and third versions.  We say the first version, which was the appellant’s version, the trial judge has given him the benefit of the second limb of accident by the direction that if they accepted or were left in a reasonable doubt as to his version, then they should acquit.

So what we say is that, in reality, the second and third versions which involve deliberate stabbing did not leave any real scope for the defence on the second limb of accident and a failure to direct on the second limb of accident, did not create a miscarriage of justice because the jury, inevitably, would have convicted.  If you deliberately stab someone, either in defence of your life or against self‑defence or just a deliberate stabbing not in self‑defence, it is difficult to see that you would not foresee death, or that a reasonable person would not foresee death, in those particular circumstances.

In our respectful submission, one has to have regard to the actual circumstances of the case.  In this particular case, the evidence came from the appellant, Ugle, and also from Dr Margolius.  The deceased died from a penetrating stab wound; the depth of the wound was some 21 centimetres; the knife entered the left chest, went towards the centre of the body and upwards, and it cut the seventh rib, and substantial force was required to inflict that particular injury.  So when one has regard to the second and third version ‑ ‑ ‑

KIRBY J:   But, presumably, the substantial force can be given from one end of the knife or from the other.  This is the problem.  It can be given by the accused sticking the knife in or it can be given by the deceased, as it were, falling upon the knife.  The accused, as I understand it, says he was not even aware that he was holding the knife at the time.  But he certainly was and he certainly had taken it in there, but that still does not resolve where the force came from.  You cannot really exclude the possibility of an accident here, can you?

MR BATES:    No, what we say is that “accident” was squarely raised on his account, which is the account that you are putting to me, and that his account was necessarily rejected because of the finding by the jury of an intent to do grievous bodily harm.  That was necessarily inconsistent with his account.

KIRBY J:   Yes, but that is without benefit of instruction on the accident question.  I know you say that it is inevitable and that it is inconsistent but it is pretty important that the judge should give the possibilities to the jury so that they can reach a lawful verdict.  It is obvious that the jury were troubled about which of these verdicts was the correct one in the case.  They came back and asked for a redirection themselves.

MR BATES:    What we say in respect to that is we are arguing here that the jury would have inevitably convicted that there is no substantial miscarriage of justice.  We would say that the appellant has effectively been given the benefit of an acquittal by virtue of the direction to acquit if they accepted or were left in a reasonable doubt as to his version, and that was the only version on which the second limb of accident was, realistically, open in this particular case.  Also, we present an argument that the appellant was represented by experienced counsel.  Experienced counsel specifically devoured any defence based on the second limb of accident before the trial judge’s charge.  After the learned judge ‑ ‑ ‑

GAUDRON J:   She did rely on the first limb and if you fail on the first limb, her disavowal of the second limb is irrelevant.  If you fail on the first limb, there must be a new trial and it does not matter.

MR BATES:   We accept that argument, your Honour, but what we say is that there is a distinction on the second limb because counsel specifically disavowed accident before the charge.  After the charge she did not ask for a redirection and, in our submission, this was a recognition of the fact that the issues relating to the second limb of accident had been dealt with in a way most favourable to the accused in the context of the direction to acquit if the jury accepted or had a reasonable doubt as to his version.  What we say was there was tactical advantage in not asking for an accident direction, particularly having regard to the favourable manner in which the issues had been covered because, if an accident direction was given, then these issues would have to be raised about what the appellant foresaw and what an ordinary person in the position of the appellant would foresee.

What we say is if the learned trial judge had directed on the second limb, he would have to direct on foreseeability not only on the appellant’s own version but also on the other two versions that involved a deliberate use of the knife to stab.  So, in this particular case, on the appellant’s version, which was the only version on which the second limb was realistically open, he received, we would say, a very favourable direction that if they accepted or were left in reasonable doubt as to it they should acquit, and that direction sheltered the appellant from the jury having to consider the foreseeability issues, either what he foresaw or what a reasonable person would foresee in the circumstances.

So in summary on the second limb, we say there are three reasons why the jury would inevitably have convicted, and that is this issue, first of all, of the direction to acquit on the appellant’s version.  That effectively resolved the issue in favour of the appellant.  It simplified the matter for the jury by not requiring them to consider issues of foreseeability which may have been decided adversely to the appellant even on his own version.  The second reason why we say that the appellant has not lost a chance of acquittal on the second limb of accident is counsel’s disavowment, not believing in the second limb, which may be said to have been for tactical reasons as opposed to oversight.

The third reason why we say that there was not a miscarriage of justice because the jury inevitably would have convicted is that a finding of intent to do GBH meant that the jury necessarily rejected the appellant’s count and we say that that was the only realistic basis upon which the second limb of accident arose.  So for those reasons, we say that the directions that would have been given in relation to the first and second limb were effectively covered by the directions that were given in this particular case and that there was no substantial miscarriage of justice.  The jury would have inevitably convicted if directions on the first and second limb of section 23 had been given.  As to criminal negligence, we say that ‑ ‑ ‑

GAUDRON J:   Wait a minute.  I thought you were hinting at that a little while ago.  Did you put a case of criminal negligence?

MR BATES:   No, what we were going to say is it is raised by the appellant that there should have also been a direction on criminal negligence, as I understand.  My learned friend is indicating maybe possibly.  If it does not arise, I do not need to deal with it.  It is part of the ground of appeal.

KIRBY J:   You tell us it does not arise now.

MR BATES:   My learned friend is indicating she is not pursuing, so I do not need to address on it.

KIRBY J:   What is the best authority that is relevant to the Code which deals with the question of disavowal?  I am referring to the accident limb, what this Court is to do where trial counsel disavow a point of law?  There must be a point where a judge has a duty to give correct instructions, but what is the doctrine on that?

MR BATES:   I think probably your Honours had something to say about it in Gipp.  Obviously, it is not a failure to raise the point, or a disavowment is not fatal, unless it can be seen to be a disavowment for tactical reasons, which we say was the position in this particular case.  There is some passages in Gipp where your Honour had something to say about this particular issue.

KIRBY J:   What is the citation of Gipp?  It will be enough for you just to give me the passage.

MR BATES:   Yes, the citation is (1998) 194 Criminal Law Reports at 106.

GAUDRON J:   No, no, let us try the Commonwealth Law Reports.

KIRBY J:   We hate to tell you but the “C” stands for Commonwealth.

MR BATES:   Sorry, Commonwealth Law Reports.

KIRBY J:   I know the representatives of the Crown think it stands for criminal.

GUMMOW J:   Do not say you are unused to it.

MR BATES:   No, it is a slip of the tongue, your Honour.  In your Honour Justice Kirby’s judgment at paragraph 137, your Honour dealt with this issue:

Rigidities of pleading or procedure do not prevent evaluation of substantial arguments that a manifest miscarriage of justice has occurred, particularly, but not only, where such miscarriage has resulted in a custodial sentence.  This Court has adequate means to defend itself from insubstantial attempts to raise for the first time points of objection earlier neglected or overlooked.  It can readily rebuff such endeavours where no injustice is demonstrated or where the course taken below is shown to have followed a deliberate tactical decision.  But where an argument is raised which appears to involve a manifest miscarriage of justice, it should not be ignored because the argument ought properly to have been expressed earlier.  The Code and its equivalents in other jurisdictions require that, in criminal appeals, all courts should be vigilant to miscarriages of justice brought to their notice.  When a manifest miscarriage can be shown, Australian courts, unless forbidden by statute, do not turn a blind eye.

Gipp is a decision of this Court on appeal from Queensland, which is a Code State, so we would say that is an appropriate principle to apply.  Basically, as I understand what your Honour is saying, is that if there is a miscarriage of justice an appellate court will step in, notwithstanding that the point was not argued below or even if there was a disavowment of the argument, but where the decision not to raise the argument can be said to be a deliberate tactical decision, that raises different considerations.

We say that this case can be viewed as not a case where the second limb of accident was not perceived but a case where, for tactical reasons, it was not pursued either before or after the judge’s charge, particularly in the favourable way to the appellant in which the judge framed his charge, effectively giving the appellant the benefit of an acquittal if the jury accepted or were left in a reasonable doubt as to his account, which was the only realistic basis on which the second limb of section 23 arose.

If I can just deal with one other issue raised at paragraph 20 of my learned friend’s outline.  My learned friend said:

Further, as Wallwork J pointed out, part of the judge’s direction was:

“…inconsistent with any question of accident and assumes that a fatal blow was struck.”

If I can take the Court to appeal book page 351 at paragraph 39.  There, Mr Justice Wallwork sets out the passage in the learned trial judge’s charge that he complained about:

Towards the end of his address in this case, after having discussed some of the facts, his Honour said:

“I suggest to you that you concentrate first on his role and decide whether he was really acting in self‑defence at the time in order to decide whether the killing was unlawful.”

Later in his summing up the learned trial Judge said: –

turning to the top of page 352 –

“It is important for you, members of the jury, to keep in mind that the real questions for you to decide are:  was the killing of Mr Byrne unlawful and if it was unlawful, what was the role of each of the accused in that unlawful killing?  What was in the mind of each of the accused when the fatal blow was struck?”

And then his Honour Justice Wallwork went on in the passage that is quoted by my learned friend in the outline:

That last passage is inconsistent with any question of accident and assumes that a “fatal blow was struck”.

But what we say is that all that passage is saying is that if the jury decided that the killing was unlawful and they look at what was in the mind of the accused when the fatal blow was struck, then that that direction is directed to intention and is not inconsistent with accident.

Unless there are any questions either submissions we would make on behalf of the respondent.

GAUDRON J:   Yes, thank you, Mr Bates.  Is there anything in reply, Ms Braddock?

MS BRADDOCK:   One matter, your Honours.  In terms of my learned friend’s argument in relation to the proviso and the application of the proviso, my understanding of his submissions is that he has been speaking in terms of “the jury” and “the verdict of the jury” and not “a jury” in terms of considering whether there has been a substantial miscarriage of justice and, in my respectful submission, the proper test is not to work backwards from what this particular jury did, but to look to the question of what a jury, acting reasonably would have done when properly directed. 

This is not a case where, for example, the facts were such as in the case of Festa, where the offending material could be excised and this Court could look at, or a Court of Appeal could have looked at, the case against the appellant and decided, in the view of the Court, whether there had been any substantial miscarriage of justice.  This case, the evidence for consideration on the significant points, was all wrapped up in a very short compass of evidence from the accused, so substantially the assessment was a jury credibility assessment of the evidence of the accused upon which they needed a proper direction and proper guidance to apply an appropriate analysis.  To speculate, because this particular jury came to the result that it did, that a jury properly directed would necessarily come to the same result, in my respectful submission, is to apply the wrong test in the circumstances.

The only other matter in reply is following upon his Honour Justice Kirby’s reference to the redirection sought by the jury at page 328 in the appeal book.  It is of significance to note that that redirection occurred on the following day, on the second day of the jury’s deliberations, and, as your Honour Justice Kirby pointed out, they were clearly having some difficulty.  His Honour’s re‑directional answer to their question was they sought in laymen’s terms definitions of not guilty, manslaughter, murder and wilful murder.  He said this, his Honour Justice Heenan:

In answering that question, members of the jury, it’s probably helpful to go back to the beginning when I said that under our criminal law to kill anyone is unlawful unless the killing is authorised, justified or excused by law.

In this case it is said that the killing by the accused man Ugle of the deceased was not unlawful in that it was justified because he was acting in self‑defence –

and then he goes on to speak of the verdicts from that, leaving them with absolutely nothing in terms of the analysis of their consideration before they get to the point of considering self‑defence.

That, at that stage of the trial, would have to have been a very powerful omission, given that they were having those difficulties.  There is a further reference at page 279, which I think we have touched on previously this morning, at the middle of the page, earlier in his Honour’s directions:

I suggest to you that your focus will have to be upon the final incident; that is, when the deceased man James Byrne was stabbed.  That happened, obviously, fairly quickly and you have heard a good deal of evidence.  That is what the case is all about.

Again, the focus, very, very strongly, despite what may have been said in passing at other points, on the deceased man being stabbed.  Those are my ‑ ‑ ‑

KIRBY J:   Does that in a sense rescue it, in the sense that his Honour is saying, “Was he stabbed?”, as distinct from, “Did he fall on the knife accidentally?”?

MS BRADDOCK:   No, his Honour’s terminology was, “When the deceased man was stabbed”.

KIRBY J:   “When”?

MS BRADDOCK:   Yes.  It assumes pretty much the same way as “the fatal blow was struck”.  There probably, if we took more time, are other linguistic references which show the same balance, or lack of it, in that summing up.  It is not for the judge, in my respectful submission, to take the short cut and effectively deal with – put out of the jury’s consideration an essential matter of this kind.  May it please the Court.

GAUDRON J:   Thank you, Ms Braddock.  The Court will reserve its decision in this matter.

MS BRADDOCK:   Thank you, your Honour.

AT 11.54 PM THE MATTER WAS ADJOURNED