Ugle v The Queen

[2001] HCATrans 422

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P99 of 2000

B e t w e e n -

MITCHELL JAMES UGLE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 10.15 AM

Copyright in the High Court of Australia

MS A.G. BRADDOCK, SC:   Your Honours, with my learned friend,  MR M.D. CUOMO, I appear for the applicant.  (instructed by Aboriginal Legal Service of Western Australia (Inc))

MR R.E. COCK, QC:   If your Honours please, with my learned friend, MS.J.A. GIRDHAM, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J:   Yes, thank you.  Now the Court thinks it might be better assisted by hearing Mr Cock first.

MS BRADDOCK:   Very well, your Honour.

MR COCK:   The argument against us, your Honours, is that the evidence raised the question of accident and that the learned trial judge did not lead the defence of accident.  The Court of Criminal Appeal rejected that argument ‑ ‑ ‑

HAYNE J:   Did it reject the notion that the facts raised accident?  I thought their Honours accepted that this ‑ ‑ ‑

MR COCK:   Justice Parker, certainly, yes.

HAYNE J:    ‑ ‑ ‑was a case in which accident was a live issue.

MR COCK:   Yes.

HAYNE J:   And I read the critical step in his Honour’s reasoning at being at page 89, paragraph 65, at about lines 41 and following; that is where I see his Honour is taking the critical step in his reasoning, but do you say his reasoning is found elsewhere?

MR COCK:   No, that is the passage, paragraph 65 and following, yes.

HAYNE J:   How do you say we should understand his Honour’s reasoning in that paragraph?  What is his Honour there saying?

MR COCK:   In paragraph 65?

HAYNE J:   Yes.  What are the essential steps taken?

MR COCK:   I suppose his Honour is saying that if it was the first limb of accident, which is the limb, as I understand it, independently the exercise of his will, which is the basis upon which accident would be available on the evidence to the applicant, Ugle, then by directing them, the jury, that to bring in a verdict of murder they had to be satisfied of an intention to cause grievous bodily harm.  The verdict then resolves the question because the jury, in determining beyond a reasonable doubt that there was an intention by the applicant to cause grievous bodily harm to the deceased, it cannot be said then that the killing blow was an event which occurred independently of the exercise of his will.

HAYNE J:   The difficulty I have with this, so that you may deal with it, is this:  if his Honour is right, a sufficient direction on specific intention, that is, requiring the jury to consider did the accused intend to kill or do GBH, will always suffice in any accident case and, it may be right, it may be wrong but, at the moment it seems to take accident altogether out of the jury’s consideration.  That is the trouble I see.

MR COCK:   Yes, that is the argument against us, that the proposition must be capable of extrapolation to all cases.  It seems apparent to us, however, that Justice Parker was not expressing it in those terms, firstly, and, in that respect, the latter passage of his Honour’s judgment about the relevant elements, or the features, of the case mean that the direction was adequate.  I mean, that is really why we say his Honour ‑ ‑ ‑

GAUDRON J:   But is there not another difficulty, Mr Cock?  It is all very well to say the jury’s finding negatives it, but it is almost putting the cart before the horse.  Surely they would have to negative accident before they could find intent.

MR COCK:   We are dealing with the first limb of accident of cause only here.  Justice Parker found that that was available on that small piece of evidence from the applicant.

GAUDRON J:   There is some difficulty, is there not, about how the defences of accident and self-defence can be raised and accommodated in the one trial and the directions that ought to be given?

MR COCK:   And, as his Honour Justice Parker rightly pointed out, to go too far into accident, to have left accident, would have required a charge to the jury in relation to criminal negligence also, which, of course, his Honour avoided doing by the adoption of the approach which he chose, and there are obvious difficulties from all sorts of perspectives about avoiding the need to give a direction in relation to criminal negligence.

HAYNE J:   And the express disclaimer by trial counsel of reliance on accident may then, ultimately, take on some real significance but, at this level of inquiry into the matter, there is a difficulty, it seems to me.

MR COCK:   I accept, there is a huge difficulty if the case is authoritative for the proposition that a specific intent direction removes the need for a trial judge to direct in relation to accident.  There is no doubt that if that is -the proposition of this case is authority, then special leave is obviously ‑ ‑ ‑

GAUDRON J:   It would seem to say that, would it not?

HAYNE J:   That is the only way I can understand what his Honour is saying at 41 and following on page 89, and that is why I took you to it to see whether I was simply misunderstanding what his Honour writes.

MR COCK:   No, your Honour is not, of course; it is certainly the way in which he expresses himself at that passage, but, as your Honours appreciate, we contend that there were features of the case which would confine to this case that proposition is a correct one, in the sense, that clearly the proposition is not capable of application much wider than the facts of the case where self-defence is really not argued in the context of a question of relativity.  It was diametrically opposed cases.  The delineation of the issues for the jury was sufficiently accurate by simply directing their intention to that question of intent.

HAYNE J:   Would not an ordinary murder charge to a jury where deaths resulted from a blow or firing of a weapon or something include a direction to the jury that they must find that the act was the willed act of the accused?  I would have thought that would be part of the standard directions you would have to give to a jury as you led them in.  Often not a great issue in a trial, I would have thought, but ordinarily I would have thought you would lead off with first find there was a willed act, then, “Let us look at the intention with which that act was done”.

MR COCK:   Certainly on the facts of a usual case, that would be right, and in the facts of this case this was a case of self-defence, where the defence case predominantly was that there was a lunging with a knife in self-defence, and ‑ ‑ ‑

HAYNE J:   Well, a fending off, and, “I happened to forget that I had the knife in my hand”.

MR COCK:   Well, it was not quite as stark as that, your Honour.

HAYNE J:   It is a caricature, but not far off it, I think, Mr Cock.

MR COCK:   Well, that is the issue and degree that arises in the case, is it not, really?  The Court of Criminal Appeal heard this very argument.  As you know the point was not taken by either counsel for the applicant or counsel for the co-accused, whose defence relied upon the culpability of

this applicant at the trial itself - both experienced counsel, another weighty fact on Justice Parker’s mind.  It really goes to the other issue your Honour put to me that, really, in the facts of the particular case, the weighty features of the problem which would arise to the then accused persons, if the trial judge had directed in terms of criminal negligence, probably strategically made it better off for them to simply concentrate running the defence on the basis of self-defence, facing up to the reality of what was essentially said to be done in self-defence and seeking to have the jury concentrate on that issue.

HAYNE J:   Well do you seek to defend the result on a basis that would say accident was not a live issue?

MR COCK:   The first limb of accident was a live issue, I accept that, suffice to say that I would not be conceiving the argument below.

GAUDRON J:   Yes, there will be a grant of special leave in this matter.

MS BRADDOCK:   May it please the Court.

GAUDRON J:   The argument would be concluded in a day, would it, do you think?

MS BRADDOCK:   I would say so, your Honour, yes.

GAUDRON J:   I suppose one ought to ‑ ‑ ‑

MR COCK:   The draft notice of appeal, of course, goes well beyond accident; the draft notice of appeal at page 108 talks in terms of direction in relation to self-defence, talks in relation to other matters.  I do not know whether that is still pursued.

MS BRADDOCK:   Your Honour, it is not; it is the second ground that is the matter of weigh and concern, not the direction on self-defence itself.

GAUDRON J:   Yes, thank you.

MR COCK:   On that basis a day would be ample.

GAUDRON J:   And I suppose the matter should be listed in Canberra, not wait twelve months.

MS BRADDOCK:   Your Honour, for most reasons, but also for this reason it should be proceeded with expeditiously, in the sense that it is a situation that could repeat itself quite quickly in the sense that wherever there is a self-defence situation where the defendant says he did something in self-defence which is not identical with what the prosecution alleges, this may arise.

GAUDRON J:   Yes, well thank you.

MR COCK:   I do not oppose that, your Honour.

GAUDRON J:   No, well it is just a question of ascertaining information for logistic purposes.  The Court will adjourn now to reconstitute.

AT 10.25 AM THE MATTER WAS CONCLUDED