Wilson v The Queen

[1991] HCATrans 239

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AlS of 1991

B e t w e e n -

DARYL STEWART WILSON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 3 SEPTEMBER 1991, AT 3.18 PM

Copyright in-the High Court of Australia

Wilson 1 3/9/91

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR G.D. ALCOCK, for the

applicant. (instructed by Stokes & Associates)

MR B.J. JENNINGS, QC: If the Court pleases, I appear with

my learned friend, MR P.R. BREBNER, for the

respondent. (instructed by the Crown Solicitor for

South Australia)

MASON CJ:	Mr Tilmouth.
MR TILMOUTH:	May it please the Court, it is no doubt obvious to Your Honours from reading the judgment
in the court below that our special leave point
revolves around the test at common law of
manslaughter by an unlawful and dangerous act. In
this case too, we submit, it is quite apparent that there is a conflict of authority between this
court - that is the South Australian Full
Court - and the line of authorities commencing in
Victoria with Holzer's case. That line of
authority appears to ave been supported by two
cases of other Full Courts in Tasmania and Western
Australia, albeit on the question of construction
of codes.
The New South Wales authorities - there are several of them - but our submission, essentially,
about them is that they are inconclusive of the
current point and, as well, there is a recent judgment of a single judge of the Supreme Court of the Australian Capital Territory which marches in
favour of the Holzer construction for which we contend.

This Court, as well, has never authoritatively

pronounced on the common law for Australia. It

related to manslaughter by an unlawful and

dangerous act. There are several passages which

are essentially dicta, going back to

Justice Windeyer in two cases,

Chief Justice Barwick in Pemble and more recently,

Justice Brennan in Boughey's case, but apart from being dicta, those judgments in short, in our

submission, cut both ways.

We would also submit, Your Honours, again

without elaborate argument, that the difference in
the policy considerations for applying the Holzer

line, on the one hand, and the less demanding

English test on the other, are well demonstrated by the differences of opinion by Justice Cox, with

whom Justice Matheson agreed in the majority, and

Chief Justice King who, of course, dissented in

material respects regarding the policy reasons why

he suggested that the Holzer principle should be

adopted in Australia.

Wilson 2 3/9/91

The facts, as well, Your Honours, again

without arguing the facts, show a classical case

where the difference between the English principle

and the Australian principles really matter. In

this case it was simply a punch to the face area.

The medical evidence was fairly clear that what

caused death was falling to the ground. It was not

obviously the original punch and, on the English

authorities, of course, the applicant would be

guilty of manslaughter. On the Holzer principle,

he may well not be, as Justice Matheson pointed

out, also in his reasons for judgment.

MASON CJ: But, was this aspect of manslaughter a live issue

at the trial?

MR TILMOUTH:  The focus of the trial, Your Honours, was on

felony murder and manslaughter was very much - an
afterthought is putting it too bluntly, but it was

very much a secondary matter. It is clear,

however, that His Honour did leave manslaughter on

the basis of an unlawful and dangerous act -

MASON CJ: But counsel for the applicant did not seek any

redirections.

MR TILMOUTH:  No, he did not.

MASON CJ: Did not seek any explanation as to the basis upon

which it was being left to the jury in terms of

dangerous.

MR TILMOUTH:	No. Counsel for the accused, as he was in the court below, consistently sought redirections on
self-defence requesting His Honour to relate the
facts to the principles, but apart from that issue
which he raised both before the summing up, during
it, I think, and certainly afterwards, he did not
raise the question of whether the summing up adequately dealt with self-defence and he did not
raise the issue of whether or not the directions as
to manslaughter itself were adequate directions, I
accept that point.
DEANE J:	Mr Tilmouth, if you were to get leave, and putting

to one side the problem of the proviso, would the

appeal be confined to this point, or would you be

planning, having got leave on this point, to

reopen, or to seek to reopen the whole question of

self-defence?

MR TILMOUTH:  Yes, we would seek to reopen self-defence

because that is, in one respect, inherently tied up

with the issue of the application for proviso
because the court below held that a self-defence

was negated by the verdict of the jury.

Wilson 3/9/91

The other point we would seek to litigate, of

course, if special leave were given on the
manslaughter issue would be the alternative

question which His Honour Justice Cox dealt with,

and that would be the question of whether the test

of foresight of the degree of harm - the first
point, of course, whether the degree of foresight
requires simply there be some hurt or there be
serious harm - but the second question embodied, or

separate from that, really, is the question of

whether there must be simply a risk of some harm or
whether it must be likely that some harm would

result.

The balance of the English authorities,

Your Honours, certainly Daley in the Privy Council,

and certainly, we would submit, as well, the Larkin

formulation referred to the likelihood of injury

resulting. What Justice Cox has done, may it

please Your Honours, is he has not only preferred

the English position as to the degree of

dangerousness which is required, namely, only some

harm, but His Honour has also preferred the less
demanding test on the second footing that it only

requires the reasonable man in the position of the

accused to - should have realized there was a risk

of that harm resulting. The balance of the

authorities, in our submission, in England is that there must be a likelihood of that risk resulting.

So, although His Honour has preferred the English

authorities, he has also preferred one line of

authority over another in that respect and that is

the second issue we would seek to litigate if
special leave were granted.

Your Honours, on the question of whether this is a suitable vehicle, could I take Your Honours to

some critical passages in the summing up in an

endeavour to persuade the Court that it is an

appropriate case, notwithstanding the matters that

Your Honour the Chief Justice put to me. At

page 34 of the appeal book, Your Honours, the trial

judge dealt with the issue of manslaughter and his

direction to the jury on manslaughter is contained

at line 16:

In this case if you have not found murder

proved, but had gone on to consider

manslaughter it would be manslaughter by an

unlawful and dangerous act. The killing of a

man in the course of committing a crime is manslaughter. The crime must be an act in

serious breach of the criminal law. A serious

assault - you may think the punch by Wilson or

the hitting of the head on the concrete by

Cumming to be serious assault - would be an

unlawful act for this purpose. Whether the

Wilson 3/9/91

particular act you are considering is a

dangerous act is a matter for your judgment.

His Honour then dealt with the memorandum which he

was proposing to hand up to the jury at pages 35

to 36 and which His Honour told the jury was merely

page 35, a memorandum setting out various

alternatives, and which Your Honours will note

simply referred to eight, at that

stage, alternative verdicts, none of which included

any reference to self-defence. I do not read it

but that is what, we submit, it comes to.

His Honour then, Your Honours may also see at

page 37, went on to deal with the issue of

provocation and His Honour dealt with provocation

over the next six or so pages and directed the jury

at page 43 at line 6:

If you were to conclude that there is a

reasonable possibility that Wilson was

provoked into hitting Ormsby with intent to

cause him grievous bodily harm and the blow

and consequent fall caused Ormsby's death,

then you would find Wilson guilty not of

murder but of manslaughter. In that case

Cumming would not be guilty of anything.

I will come back to that in a moment for a reason

which will become obvious. His Honour then went on

to deal with self-defence, which is the critical

issue:

Now having dealt with provocation I come

to self-defence, the second matter. You will

remember that Wilson has said he hit Ormsby

because he saw Ormsby with fists clenched and

raised as he, Wilson, turned away and that

that is why he hit Ormsby. If you were to

think that a reasonable possibility then the

law on self-defence is relevant. As with provocation so with self-defence

the onus, the burden of proof, is on the Crown

to negative self-defence. The Crown must

prove beyond reasonable doubt that the accused

did not act in self-defence. If you think

there is a reasonable possibility that the

accused, Wilson, believed on reasonable

grounds that it was necessary in his own

defence to hit Ormsby as he did, in other

words, that he acted in self-defence and in so

doing did not use more force to defend himself

than was necessary, even though you think the

blow caused Ormsby's death, then your verdict

will be that Wilson was not guilty of murder,

Wilson 3/9/91

for self-defence is a complete answer to a

charge of murder.

Then comes the difficult sentence:

In that case too Cumming would not be guilty

of anything.

That is the only passage, subject to any effect

that the memorandum which later went to the jury

may have, in which His Honour in any way has

directed the jury that self-defence would be a

defence to manslaughter because the assault, which

would otherwise be an assault, would not have been

unlawful. Our submission, however - - -

MASON CJ: Just stopping you there, in the Chief Justice's

judgment, I think it is, at page 124, the

Chief Justice says, at the top of the page:

The judge twice told the jury, however, that

if the appellant was acting in lawful
self-defence he would not be "guilty of

anything".

Now, what are those two passages?

MR TILMOUTH:	The first one is the one I have just read.
MASON CJ: Yes.
MR TILMOUTH:	And the second one, Your Honours, is at 116

to 117 when, after the jury had come back and

specifically sought redirections on self-defence,

and at 116 to 117, His Honour repeated in exact

words from line 22 over to 117, line 11, the

self-same direction at 43 to 44. Then,

Your Honours may note that His Honour asked the

jury:

Now that is the explanation I gave you this

morning. Shall I read out the vital sentence
or so again?

Line 13, 117, and then Your Honours will note that

His Honour again read the key passage but this time

he left off the last sentence, the sentence being:

In that case too Cumming would not be guilty of anything.

The jury retired at 12.05 on this day. It returned

at 7.00 pm that night to ask a question about

self-defence. It received the same direction again

as it received earlier and it was repeated in the

vital section at page 117 with the omission of the

key words:

Wilson 6 3/9/91

In that case too Cumming would not be guilty

of anything.

Your Honours, what I was going on to point out, going back to page 44, was that, with respect,

the reference there at lines 2 to 3:

In that case too Cumming would not be guilty

of anything -

does not really mean, as the Crown have argued in
their written outline, that Wilson would not be

guilty of anything and Cumming would not be guilty

of anything. That is a reference back in context,

Your Honours, in our submission, when properly read

to the direction on provocation the page before.

Your Honours will remember, on page 43, His Honour after six pages of substantive

directions on provocation said at lines 10 to 11:

In that case Cumming would not be guilty of

anything.

Then, at 44, he says:

In that case too Cumming would not be guilty of anything.

The "too", in other words, does not relate to

Wilson, in addition to Cumming. It is simply a

reference back to the directions which would be

given in parallel to provocation.

In our respectful submission, Your Honours, in the end result the jury retired on the direction

which was given at 117 which, in our respectful

submission, properly read in the context of the

summing up as a whole really left the jury - in our

submission, left the substantial risk that the jury

were of the view that self-defence had nothing to

do with manslaughter, that it was related solely to

murder itself.

At the passage that Your Honour

the Chief Justice has pointed out to me where

Chief Justice King applied the proviso on the basis

that the jury were told that he would not be guilty

of anything, is simply a reference to the two
passages I have mentioned at 43 and 117. The

Chief Justice in applying the proviso, with

respect, on that footing, in our respectful

submission, has overlooked the fact that the second

redirection at 117 omitted the key passage

altogether. It overlooks the fact as well, may it

please Your Honours, that the jury verdict of not

guilty of murder but guilty of manslaughter, might

Wilson 7 3/9/91

well have been based on provocation because

provocation was left to the jury as a substantial

defence. It may be argued now that it should not

have been since the case was fought on felony

murder and it was inappropriate but the jury did

not know that, of course.	We, as lawyers know it
but the jury would not.	One cannot say, in our

respectful submission, with any confidence at all that the verdict of manslaughter was not based on provocation as distinct from self-defence.

In our respectful submission, as well, the

third error, with respect, which the Chief Justice

makes in applying the proviso which, of course, the

other two judges adopted although they took a
different view about the substantive law of

manslaughter, was that the passages, we submit,

at 43 and 117 are in terms ambiguous. The words:

In that case Cumming would not be guilty of

anything -

are clearly ambiguous. They may, of course, imply

indirectly that Wilson would not be guilty of

anything like Cumming but, in our respectful

submission, read in context, especially going back

to the first direction, the two were simply meant to relate the direction which had just been given

on provocation hand in hand with the direction on

self-defence. In other words, if the Court

pleases, in our respectful submission, to use the

words in Mraz's case of Justice Windeyer, the Crown

could not make it clear that there was no real

possibility that justice had miscarried or to

translate it to the facts of this case, in our

submission, there is a real possibility that this

jury delivered a verdict on the footing that it
believed that self-defence had nothing to do with

manslaughter. That is compounded, with respect, by the direction on manslaughter which was given at 34

which is an affirmative direction quite apart from

any influence that manslaughter may or may not have

had that the punch itself was ipso facto an

unlawful and dangerous act, or an unlawful act at

least, for the purposes of the manslaughter

doctrine. That was, as I have put it, an

affirmative direction that the punch was

automatically an unlawful act for the purposes of

the manslaughter doctrine.

So, if the Court pleases, in our respectful

submission, the summing up really contained the

grave risk that manslaughter was not properly

considered by the jury either in the sense it did

not have before it effectively the relevance of

self-defence or, alternatively, it was not

Wilson 3/9/91

explained that to be an unlawful assault it must

have been one not permitted in self-defence.

Your Honours, we are aware, of course, as

Your Honours know that there was a memorandum that

also went to the jury and it is true, as my learned

friend points out in his written submissions to

this Court, that passages 9 and 10 come very close

to dealing with self-defence - that is exhibit 3 to
the affidavit of Mr Stokes, Your Honours - but that

memorandum, in our submission, must be borne in
mind in the context of the specific direction at

page 35 which I have read to Your Honours that it

was meant for the jury's consideration as to the

alternative offences available and, in any event,

Your Honours will recall that when His Honour

directed the jury on the memorandum he referred to,

at that stage, only eight alternatives which did

not contain any reference to self-defence but, in

any event, in our submission, by the time that jury

came back at 7.00 o'clock at night and asked

specifically for directions on self-defence and got

that repeat of the earlier direction and then had

it repeated for a third time without the vital last

sentence that is the direction, of course, which

the jury finally retired on and that is, in our

submission, highly likely to be the direction upon

which they returned their verdict. That last

direction in terms, of course, eschewed any

relevance of self-defence altogether.

So, if the Court pleases, in our submission,

this case is a fit vehicle to ventilate what we

submit is a special leave point, the manslaughter

by unlawful and dangerous act option, and it would

be wrong to apply the proviso on the footing that

Chief Justice King did for the three reasons that I

mentioned to the Court earlier. If the Court

pleases.

MASON CJ: Yes, thank you, Mr Tilmouth. Yes, Mr Jennings.

MR JENNINGS:  May it please the Court. In the Crown

submission this is not an appropriate case for

special leave. True it is there is now a

divergence between what has been called the

concept "dangerous" in the unlawful and

Holzer/Victorian line of authorities and the the

dangerous act doctrine.

MASON CJ: Should it not be settled now?

MR JENNINGS:  Not in this case we would say, sir, because

this was not the focus at the trial. The defence,

in effect, conceded that if there was an unlawful

assault, a punch which was unlawful and not in

Wilson 3/9/91

self-defence which, as we know, felled the victim

and killed him, the defence conceded at trial, in

essence, that that was manslaughter. Now, it may

be that their concession - and it is set out in my outline at page 15 of the appeal book - namely, an

assault of whatever severity would be an unlawful

and a dangerous act. If death resulted from that,

that would be manslaughter, not murder, begs the

very question as to what is, in this context, a

dangerous act, but we would say, of course, that

even if that be so, the concession was, in the
circumstances of the case, realistic and
appropriate, because even if it did not come to

grips with the question of what was a dangerous

act, none the less, for the reasons that

Chief Justice King applied the proviso, there is of

course that category of manslaughter based on the

unlawful battery or unlawful application of force

doctrine where the only intention required on the

authorities is an intention to do some harm, more

than trivial or negligible. As the Chief Justice

said in his judgment, if that basis of manslaughter

had been left to the jury in this case, as it

should have been, because it would seem plain on

the authorities - and my friend, I do not think

suggests otherwise that it is an appropriate basis

for manslaughter - then a verdict of manslaughter

was inevitable.

So the Crown says it matters not by which

route one reaches that verdict; whether by the

route of the act being a dangerous act or

alternatively, on that basis of manslaughter based

on an unlawful battery with an intention to do some

harm - the Mamote-Kulang version of manslaughter

which Justice Windeyer talks of in that case at

common law - the Crown says that, at the end of the

day, in this case, what this accused did plainly

amounted to manslaughter and if that be so then

this case is not an appropriate vehicle to resolve

that divergence of authority which has plainly

emerged.

On the issue of self-defence, the Crown says

that that gives rise to no question of general

importance. The question in relation to

self-defence, in this case, is whether the

directions at the end of the day would have left
the jury in any doubt about the true position and
that question was examined by the Court of Criminal
Appeal and resolved against the applicant.

So for those reasons, if the Court pleases, the Crown says that, although that difference of

position as between the Holzer/Victorian line and

the English line which we say has support, not only

in this State but in other States, although that

Wilson 10 3/9/91

may one day have to be resolved, this case is not

an appropriate vehicle for it. If the Court

pleases.

MASON CJ:  Thank you, Mr Jennings. Mr Tilmouth, what do you

say about this concession on page 15?

MR TILMOUTH: Well, with respect, in our submission, it

compounded the problem and I say that with all due

respect to counsel because it was wrong. An

assault of whatever severity would be an unlawful
act, is correct of course, but it would not

necessarily always be a dangerous act and that, in

my submission, is why I have suggested to the Court

that it compounded the issue rather than made a

concession at the trial.

The real issue in this case was one of self- defence, that is, whether the punch was unlawful,

and that statement there that it would be unlawful

and a dangerous act, in my submission, only added

to the risk that there may have been a miscarriage

of justice. Put another way, in our submission,

that concession could hardly have been a tactical

consideration made by counsel in the court below

because it was wrong for the reasons I have

mentioned and, in our submission, it only adds to

the apprehension that the Court should have as to

whether or not there was a miscarriage of justice.

It was an error to state it in those terms.

GAUDRON J:  Do you have anything to say about Mamote-Kulang

manslaughter, other than, as I understood you to

say earlier, you never get there because of the

self-defence problem?

MR TILMOUTH: That is right. If self-defence is available,

of course, then it does not matter because to be a

battery manslaughter, so to speak, self-defence, of

course, is available on that ground.

GAUDRON J: But do you accept that there is another such

category of manslaughter?

MR TILMOUTH:  If the High Court takes the view that the

English authorities are correct, that category disappears because it is subsumed in the same test.

On the other hand, there is a great body of

academic literature, at least, to say that that

doctrine is not well-founded in principle and has

been a vestige of the past and, in our submission,

if the Court were to grant special leave, subject

to any restrictions the Court would make, it would

be open, in our submission, to argue that that

doctrine no longer applied, that there should be

one uniform test consistent with more recent

principle.

Wilson 11 3/9/91

DEANE J: But if it does apply, in view of the concession on

page 15 to the extent that, as I understand it, you

do not contend to be wrong - - -

MR TILMOUTH:	Not in terms, no, but we say it begs the question because self-defence would still be open
on that doctrine.
DEANE J:	But does it not make the question involving the

differences between the Victorian, New South Wales
and South Australian Supreme Courts somewhat

academic in this case?

MR TILMOUTH: Well, no, with respect, because some of the

later authorities, and particularly in

New South Wales, tend with respect - Coomer's case

is an example and Justice Cox and

Chief Justice King read Coomer's case differently -

seems to be a merger of the two, the English and

the Australian doctrine. The New South Wales Court

of Criminal Appeal appears to be adopting some
mental element of moving away from the objective

requirement, but on the other hand, as to the

foresight of "dangerous" to the English authority,

which of course is an amalgam of the two and, in

our submission, the development of the law there is

away from this separate category altogether.

DEANE J:  I follow that, but assume against yourself that

the Mamote-Kulang manslaughter is available, if you

be correct in your submission as to "dangerous" not

being itself sufficient when coupled with

"unlawful", in the circumstances of this case would

it not be unlawful and intended to inflict harm?

MR TILMOUTH: If self-defence were not available, yes.

DEANE J: In other words, what I was putting to you is, I

follow what you say about self-defence, but assume

you succeed on self-defence, cadit quaestio, assume

you fail on self-defence, does it not all become a

little bit academic?

MR TILMOUTH: Well, for two reasons, no, with respect; the

first is for what I put as the affirmative

direction of ipso facto manslaughter at page 34,

and secondly, of course, because that limb was

never put to the jury in any event; it was never

litigated; it was never a live issue and to revive

it in the application to the proviso, in our

submission, was too late.

DEANE J: Yes, except it is a bit artificial to say that

when what was put was unlawful and dangerous with

the support, as it were, of counsel for the
defendant and the point is, while unlawful and

dangerous was too low a test, but you disregard the

Wilson 12 3/9/91

test which would have amounted to the same thing

and which could have been put on one view of the

law.

MR TILMOUTH:  Yes. Without going into it in detail,

Your Honours, there is another line of authority,

principally Victorian, which suggests that judges

should not put a sequence of alternative bases of

manslaughter, they should opt for one or the other.

That is not finally settled but there is that drift

in the authorities and, of course, what counsel

conceded there was not the punch, in this case, was

unlawful and dangerous; it was something more

general than that. An assault of whatever severity

would be an unlawful and dangerous act and I cannot

put it any higher than what I have put as strongly

as I could to Your Honours already, that that was

wrong.	It may have been unlawful, but it would not
always be dangerous.	An indecent assault, for

example, would illustrate that point very clearly.

DEANE J:  I do not want to labour it, but assume against

yourself the other basis of manslaughter and

self-defence has failed, could it have seriously

been put that the punch was not unlawful and/or

intended to inflict harm, in the circumstances of

this case?

MR TILMOUTH:  I think the answer I would have to concede is,

no, it could not seriously be contended.

DEANE J:  Which seems to bring you by a rather long trek

back to the question Justice Gaudron asked you.

GAUDRON J:  The purport of my question really was, can

Mamote-Kulang manslaughter stand consistent with

the Holzer approach?

MR TILMOUTH:  On view no, with respect, it cannot.

GAUDRON J: Yes. Well, on the view that you would advance

if special leave were granted?

MR TILMOUTH: Yes. That category of manslaughter is one

that has been on the books for some time, of course

but, in my submission, again, the trend in

authority is towards one composite test for
manslaughter; it is towards equating the question

of gross negligence on similar terms to unlawful

and dangerous act and with it, in my submission,

separate battery assault is one which is, one might

argue, gradually falling by the wayside. We would

seek to argue that, of course, but on the basis of

Holzer itself, which of course referred to that

basis of manslaughter, the only answer we can put

is the one I have already put to Your Honours

Wilson 13 3/9/91

already, that it begs the question of self-defence

is still available.

But Your Honours, with respect, I come back to

it. I accept, of course, that whether they be

concessions, or however called, of counsel, are

relevant both on special leave applications and the
applications of proviso, can it be said, with

respect, in the end result that there is no

appreciable risk that self-defence was adequately

left to the jury in this case, and in my

submission, for all the reasons I put, especially

going to where it ended up at page 117, that

question cannot be confidently answered and the
proviso could not be applied to it, especially when

provocation was as well put to the jury.

I do not know if they were in reply or in

answer, may it please Your Honours, but that is all

I had.

MASON CJ: Yes. The Court will take a short adjournment to

consider the course it will take in this matter.

AT 3.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.56 PM:

MASON CJ: There will be a grant of special leave to appeal

in this matter.

AT 3.57 PM THE MATTER WAS ADJOURNED SINE DIE

Wilson 14 3/9/91