Williamson v The Queen

[2003] HCATrans 392

[2003] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M62 of 2001

B e t w e e n -

ANN DENISE WILLIAMSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 2.50 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear for the applicant.  (instructed by Access Law)

MR W.H. MORGAN‑PAYLER, QC:   If it please the Court, I appear with my learned friend, MR C.W. BEALE, for the respondent.  (instructed by Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Nash.

MR NASH:   If I could first ask leave to rely on an amended outline of argument.

GLEESON CJ:   Is that opposed, Mr Morgan‑Playler?  Are you happy with that?  Yes, you have that leave.

MR NASH:   And if, secondly, I could say that despite the revamping of the argument, the Weissensteiner issue appears to be really a red herring, that I was induced into it by the fact that Justice Charles, at pages 176 to 178, appears to have relied on the reasoning in Weissensteiner.

The essence of the case lies in the following facts.  The trial judge and the Court of Appeal drew an inference as to the manner of killing.  She went there with a loaded gun and fired two shots into the body of the deceased.  They drew that inference and, as I mentioned earlier, Justice Charles, adverting to the absence of any account from the applicant.  They then found that no inference of death by unlawful and dangerous act was open by reason of the fact that the trial judge and the Court of Appeal drew that inference as to the manner of killing.

HAYNE J:   …..drew it from the fact of two cartridge cases?

MR NASH:   Yes, your Honour.  What we have is really inference upon inference upon inference in this case.  Therefore, a particular inference as to intention not is open but is the only one open as a reasonable hypothesis.

GLEESON CJ:   What sort of unlawful and dangerous act do you have in mind as a possibility?

MR NASH:   The possibilities are, your Honour, that the killing did not take place.  I am not adopting the strangled argument that was put below.  There could have been a fight with a knife.  There could, in fact, have been a shooting.  There is no evidence that the applicant had a gun of any description.  The only evidence is the two cartridge cases, nothing else.  They could have been there from any source whatsoever, bearing in mind, if the Court pleases, it appears no one heard any shots.  So we do not have a situation where there is a shooting at a particular time or shots are fired at a particular time.  Cartridge cases do not necessarily get into a building or into premises by being fired within the premises.

The Court will go one way or the other on this and throw me out or not, but the real question is where none of the circumstances of a killing are known, everything is a matter of inference.  Can any matter be removed from the jury’s consideration because the trial judge has drawn a particular inference?  Now, particularly in this case where the jury specifically asked for directions in relation to mens rea and were told on a number of occasions – on I think three occasions – that the issue of intent - sorry, intent is not in issue in this case.  When the applicant’s counsel, prior to and after the question from the jury, specifically said, “I want a direction on manslaughter.”

What we know is there is clear evidence from which the inference is open – and in fact it is almost an inevitable inference – that the applicant was in the premises.  It is also clear that the applicant had the deceased’s blood on her shoes.  The rest, with respect ‑ ‑ ‑

HAYNE J:   And there was enmity between ‑ ‑ ‑

MR NASH:   I am not querying motive, your Honour.  Even in the outline I conceded all that.

HAYNE J:   Just so, but you then have two spent cartridge cases.  What is the unlawful and dangerous act hypothesis that cannot be excluded?

MR NASH:   If I can go back a step, your Honour.  Basically, what we have here is an absence of evidence from the applicant.  I know there is authority for the proposition - I think your Honour the Chief Justice has made the point that you make forensic decisions and are stuck with them, but there is no evidence as to the manner of death.  We say it is a reasonable hypothesis that the deceased was not killed by shooting.  It is a reasonable hypothesis.  It is open to find that she was killed by shooting.

Once one draws the inference that the Court of Appeal drew and the trial judge drew, that those two cartridge cases are absolutely damning and establish beyond reasonable doubt that there was a killing by shooting, then it is difficult to raise the reasonable hypothesis.  But what we say is the error is that the inference as to the manner of death was for the jury.  The question of whether or not she was killed by shooting is not, with respect, an open and shut case.  It is a matter for the jury to determine the manner of death.  It was not really just a question of the jury not getting a chance to determine intent, but because they were not given an opportunity to determine the matter of intent, they were not really given the opportunity to

determine the matter or manner or death.  What they were given an opportunity to decide, the only thing they were asked to decide in fact, was who caused the death.  We say that was the trial judge abrogating to himself the role of the jury.

Otherwise we have the situation that wherever the circumstances of death are unknown and there is no evidence from the accused as to what happened – and there is a very good forensic reason for that, “I’m guilty of manslaughter.  If I sit here, I may not get convicted of anything” – the choice the jury have in fact is murder or nothing.  We say that that was in the circumstances of this case inappropriate and incorrect.  I can wind the gramophone on again, if the Court pleases, and say the same thing, but the essence of the case lies in the proposition that it was not an inevitable conclusion from the finding of the cartridge cases that the death was caused by shooting.  If the Court pleases, subject to questions, they are the submissions.

GLEESON CJ:   Thank you, Mr Nash.  We do not need to hear you, Mr Morgan‑Payler.

In this matter we are not persuaded that there has been any miscarriage of justice and we are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused.  We are going to adjourn for a short time to reconstitute.

AT 3.01 PM THE MATTER WAS CONCLUDED