Wildsmith v The Queen

[2015] HCATrans 18

[2015] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S226 of 2014

B e t w e e n -

DAVID WILDSMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 12.29 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, I appear with my learned friend, MR P.D. LANGE, for the applicant.  (instructed by Murphy’s Lawyers)

MR J.H. PICKERING, SC:   I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

BELL J:   Yes, Mr James.

MR JAMES:   Your Honours, the application for special leave has two grounds. They overlap quite considerably, and both grounds, we assert, are matters that raise serious concerns for the administration of justice and, in particular, the application of section 6(1) of the Criminal Appeal Act 1912 (NSW). Section 6(1) is in the common form, although there are variants throughout the States but, in essence, that section imposes on a Court of Criminal Appeal the duty, when determining an appeal in ordinary cases, to:

allow the appeal if it is of opinion 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 of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice –

The section goes on to deal with the circumstances in which there has not been a substantial miscarriage of justice.  In a long line of authority, commencing, really, with M and going right through to SKA ‑ ‑ ‑

BELL J:   Mr James, the Court of Criminal Appeal here purported to apply M and its later adoption by this Court in SKA.  To that extent, do you accept the court applied the correct principle?

MR JAMES:   No.  It is our submission that the court enunciated the principle, but did not correctly apply it.

BELL J:   Yes, all right.  It failed to apply it in what respect?

MR JAMES:   If I take your Honours quickly to the relevant passage in the judgment of Justice McClellan, who delivered the judgment to which all others assented, in the application book at page 299, paragraph 53.

BELL J:   Well, now, his Honour says that he has reviewed the whole of the evidence.

MR JAMES:   Yes.

BELL J:   He acknowledges that there are:

inconsistencies in the evidence given by the witnesses –

I think a little earlier in his reasons, his Honour has noted that the events took place within a very short period of time and it was a violent scene, and that, his Honour considered, provided an explanation for the inconsistencies which he detected.

MR JAMES:   Your Honour, at paragraph 11 his Honour referred to the test to be applied and, in particular, the necessity to make his:

own independent assessment of the evidence both as to sufficiency and quality.

BELL J:   Yes.

MR JAMES:   His Honour read the evidence.  His Honour adverted to the inconsistencies.  His Honour adverted to a possible explanation which might explain some of the inconsistencies, and he set out the inconsistencies in his judgment.  Many of those are capable of being explained on the basis that everything happened very quickly.  Some of them are not.  The idea of the appellant racing across the road to mace the driver of a car who was passing, the idea of the appellant macing somebody rather than having a metal pole and striking the deceased, the idea of the appellant standing remote from the violence that was going on was simply not explicable on the basis that things happened quickly.  To add to that there were internal inconsistencies in the evidence of each of the witnesses as well as noted reasons why they might attempt to cast the blame on the appellant, as well as notable differences between them.

What one needed to do in those circumstances, in our submission, was for his Honour to examine the evidence and set out a reasoned conclusion for himself.  He does adopt as a hypothesis a reference to what Justice McHugh had said concerning some cases in which events happened quickly might well be such in which common experience, in effect, would accept a degree of inconsistency.  It is our submission this is not that case.  These are not that category of inconsistencies.  But in any event, his Honour did not say that in any express terms.  What he did say, when one gets to the paragraph at 299, is:

I have reviewed the entirety of the evidence.  Although I acknowledge the inconsistencies in the evidence given by the witnesses to the events, the jury had the advantage of seeing the witnesses in the context and atmosphere of the trial.  The jury were satisfied that the accused had participated in the attack upon the victim, with the requisite intention.  The evidence given at the trial was capable of supporting the charge and bearing in mind the advantage which the jury had, I have no doubt that the applicant was [wrongly] convicted.

In our submission, when one analyses ‑ ‑ ‑

BELL J:   The applicant was rightly convicted.

MR JAMES:   Was rightly convicted, I am sorry.  In our submission, when one considers the material set out in the judgment by his Honour, he does not embark, expressly at least, on such an analysis and such reasoning as to be able to deal with the significance of the inconsistencies ‑ ‑ ‑

BELL J:   Mr James, this was a case of joint criminal enterprise.

MR JAMES:   It was.

BELL J:   There does not appear to have been any issue respecting your client’s presence with Mr Tatchell at the time of the events.

MR JAMES:   Except for the word “with”, yes, we accept that.  He accompanied them in the car.  He was invited, rather forcefully, to enter the car.  He was at the scene on his own account, and he did not raise any contest with that.

BELL J:   He raised no contest with the fact that he got out of the car in circumstances in which Mr Tatchell and the other three young men alighted from the car.  Some of them were armed.

MR JAMES:   Yes, with weapons, we accept that.

BELL J:   In those circumstances, notwithstanding inconsistencies respecting the particular things that your client did, there were lively issues from the defence point of view.

MR JAMES:   There were two issues, your Honour, really.  One was did he participate in the attack and, arising from that one could infer, and from his knowledge of what was in the car and what had accompanied them when they got out of the car, the state of mind that he had such as to make it murder rather than manslaughter.

BELL J:   Yes.

MR JAMES:   So there were only those two issues - participation which flowed on to both murder or manslaughter.

BELL J:   Now, in the nature of the participation, there were inconsistencies.  The approach that Justice McClellan took was to recognise that this was a case where inconsistencies, when disclosed in the transcript, might be explained both by the speed and urgency of the events that were being witnessed, and the advantage that the jury had.  What is wrong with that as a matter of analysis?

MR JAMES:   Firstly, both here and on the second ground, Justice McClellan looked to what might have been the case.  It is not a matter of looking to see what the jury might have thought under either of our two grounds.

BELL J:   Well, looking at the first of the grounds, his Honour went further than that.  His Honour, taking into account the advantage that the jury had, concluded that he had no doubt as to the rightness of the conviction.

MR JAMES:   The way in which a judge in the Court of Criminal Appeal is required to go about the task is to review the material for themselves.

BELL J:   Yes, as his Honour said he did.

MR JAMES:   With respect, he set out the material.  He did not set out reasoning of his own in relation to it, however, to review the material and then, if he experiences a doubt, to turn to whether the jury’s verdict, because of the advantage of the jury, dispels that doubt.  Similarly, in the second ground, if one works on the basis that a conviction which appears to the judge to be unsafe should not however be disturbed on the basis there might be some rational hypothesis consistent with the jury’s verdict, almost no verdict would ever be disturbed, particularly in cases where there is an inconsistency of verdict or inconsistencies in the evidence.  In our submission, it is ‑ ‑ ‑

BELL J:   Mr James, what is the inconsistency in verdicts in which a jury, in the context of a case such as this, return verdicts of manslaughter in favour of the juveniles, and murder in favour of your client, who was one month shy of 21?

MR JAMES:   Your Honours, the age of adulthood of 18, whilst a legal discriminant, is not such as to satisfactorily make the difference, when one looks at the actions of the individuals, to enable one to decide clearly what the state of mind was of each individual.

BELL J:   One is not necessarily concerned with what people did in a melee of this character, but what they contemplated might occur.

MR JAMES:   Yes, of course.

BELL J:   In that context, it would be open to a jury to consider no small degree of difference between a 17 year old and a person nudging 21.

MR JAMES:   There may or may not be a real degree of difference in the individual case.  But in this case, the evidence against all of them really came from the same three witnesses with the inconsistencies, and the evidence as to what they might or might not have contemplated and what they might have done came from those very three witnesses.  The two grounds should not be considered separately.  They should be considered in the light of the section providing for an unreasonable verdict, or for any other reason there has been a miscarriage.  If what happened was a merciful verdict of manslaughter because three young people were young, that could have been said.

BELL J:   I do not suggest a merciful verdict.

MR JAMES:   No, I understand.

BELL J:   I suggest a proper verdict taking into account a reasonable doubt in favour of the youth of some of the participants.  Mr James, I have some difficulty seeing your submission respecting the elision between the two grounds.  If the court was satisfied that the verdict of murder was supported by the evidence, separate consideration may be given to a contention that nonetheless it cannot stand, having regard to the verdicts returned by the jury in relation to the other counts.

MR JAMES:   Yes.

BELL J:   That requires a different consideration, a consideration of is there a rational explanation for the differing verdicts?

MR JAMES:   But a rational explanation that comes out of the circumstances of the case itself.  The mere fact that people are of a slightly different age and the slight difference seems to be of two to three years at most ‑ ‑ ‑

BELL J:   Two to three years at a rather significant time in life, Mr James.

MR JAMES:   For some people, yes; for others, no.  There are plenty of 20 year olds that are less mature than other 18 year olds.  But from the practical viewpoint, one gauges that maturity, and the difference in my

client’s case, by looking at what the witnesses had said about the actions of the others. If their actions, as we say is the case here, were plainly much more redolent of the state of mind to show murder rather than manslaughter, yet the verdict was different and the Court of Criminal Appeal did not so analyse to consider that, then, in our submission, the court has not performed its section 6(1) mandated task.

That is really the gravamen of everything that we put. I cannot turn this into any question that goes really beyond the way in which this Court has looked at section 6(1) in respect of ground 1. But we do say, in relation to ground 2, that entirely the wrong test has been adopted, and that that is such a gloss on the wording of the statute, taken from Justice McHugh, particularly – his minority view in Osland – but now accepted as doctrine by the five judge court in NZ that the effect is that unless you can now show an entirely logically or legally inconsistent verdict, then there is no need to give consideration to the unreasonableness, or on any other ground there is a miscarriage, requirement of section 6(1). That is as high as I can put it, your Honour.

BELL J:   Yes.  We do not need to hear from you, Mr Pickering.

We are of the opinion that the application does not raise a question of law of general importance.  Nor do the interests of justice require the grant of special leave.  Special leave is refused.

AT 12.44 PM THE MATTER WAS CONCLUDED