Wingfield v The Queen

[1995] HCATrans 72

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A46 of 1994

B e t w e e n -

DONALD REX WINGFIELD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN J
DEANE J
DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 30 MARCH 1995, AT 11.43 AM

Copyright in the High Court of Australia

MR C.J. KOURAKIS:   If the Court pleases, I appear with my friend, MS G.A. BROWN for the applicant.  (instructed by J. Hartnett, Director, Legal Services Commission of South Australia)

MS W.J. ABRAHAM:   If the Court pleases, I appear with MR R.N. JENSEN for the respondent.  (instructed by P.J.L.Rofe, QC, Director of Public Prosecutions (South Australia))

BRENNAN J:   Yes, Mr Kourakis.

MR KOURAKIS:   If the Court pleases, the sentencing principle which the applicant contends has been violated in this case is this, that where the evidence does not establish beyond reasonable doubt an aggravating factual circumstance, the offender must be sentenced on the basis that that circumstance does not exist. 

In this particular case, the substitution of the verdict of manslaughter meant that the applicant’s deliberate acts which caused death carried with them an appreciable risk of injury, but it also meant, in a negative sense, that the applicant did not have an intention to cause grievous injury in this offending.  If the Court pleases, that being so, the fact that the applicant’s crime was saved from being the full crime of murder only because the Court of Criminal Appeal had a doubt about that mens rea, rather than being positively satisfied of its absence, had no relevance or place in sentencing, in the applicant’s submission, nor was it to the point that the applicant’s drunkenness only might have affected his ability to appreciate the harm his actions had caused.  Nor could those factors justify a sentencing approach which was to fix a sentence which was to some extent less than murder than that which would have been imposed for murder.

BRENNAN J:   But does one not start by looking at the conduct of the accused person, what that person did and the state of intoxication of that person at the time that it was done.  One inference that that evidence may have supported was an inference of intent to cause death or grievous bodily harm.  But if, for reasons which appealed to the Court of Criminal Appeal, the evidence did not quite get to that, the evidence must have revealed such a gross degree of recklessness as to nonetheless attract, as a condign punishment, an extremely severe sentence.

MR KOURAKIS:   If the Court please, the Court of Criminal Appeal, in the reasons for decision when it substituted the verdict of manslaughter, found that by reason of the drunkenness it was unlikely that the applicant appreciated the extent of harm inherent in his actions.  The applicant accepts that if the court had then sentenced clearly upon that basis there would not have been an error.  It is the applicant’s submission, however, that the remarks of the court in sentencing, which appear at page 20, do not reveal that approach.  The court said, firstly, at the top of page 20, to the offender:

Your crime is saved from being the full crime of murder only by the doubt which this court had as to whether by reason of your inebriation, your drunkenness, you fully appreciated the extent of the harm which your conduct and brutality was likely to cause and this court therefore reduced the crime from murder to manslaughter.

The court then noted what the penalty on a verdict for murder would have been but went on, at line 10, to say:

The verdict of manslaughter enables this court to impose a sentence which is to some extent less than that sentence.  Nevertheless, the crime of manslaughter which you committed falls short, as I have said, of the full crime of murder only because of the effect which your drunkenness might have had upon your ability to understand the harm that you were doing, or at least the full extent of that harm.

If the Court pleases, it is the applicant’s submission that that is different and contrasts with the factual basis upon which the applicant ought to have been sentenced, which was indeed set out at page 17 of the application book in the reasons for judgment when manslaughter was substituted.  In particular, at line 12 the court said:

It seems unlikely, however, that he had any intention to cause the child grievous injury.  He was undoubtedly quite drunk.  The most likely explanation of the events of the night appears to be that he vented his anger on the child without appreciating the degree of injury which his actions would cause.

Those particular findings made there left no room for later speculation when sentencing about whether the verdict was in any sense fortunate and whether the offending itself was therefore in some way close to murder because the verdict was based merely on a doubt.

BRENNAN J:   But that really confuses the issue, does it not?  I mean, the sentence is imposed in respect, not of the classification of the crime, nor even of its elements except so far as the specific intent in the mind of the accused at the relevant moment was engendered.  The question really is, what did this man do, and if there is a doubt by reason of his intoxication as to whether he in fact foresaw and intended what happened, what then is to be the punishment to be inflicted?

MR KOURAKIS:   If the Court pleases, that, with respect, is the question.

BRENNAN J:   It does not matter very much whether he is lucky or unlucky.  If the court comes to that conclusion, all that one can say is that because of the evidence of intoxication, the court is not prepared to draw, beyond reasonable doubt, the inference that would otherwise be drawn from the conduct which is proved against him.

MR KOURAKIS:   And it is the applicant’s submission, with respect, that accordingly he ought to be sentenced on the basis that he did not have that mens rea, that is that he did not appreciate that his actions were to cause grievous injury, but that did not appear to be the sentencing plank upon which the Court of Criminal Appeal proceeded at page 20 of the application book.  Rather, their approach did involve speculation about what might or might not have been his actual intention, his subjective intention, rather than assuming that that higher mens rea did not, in fact, exist.

If the Court pleases, to put that submission in another way:  if that approach which appears at page 20 of the application book is right, a trial judge following a jury verdict of manslaughter, in a case where murder had been charged, could say, “I find that the jury only had a doubt about your appreciation of the harm caused.  I will sentence you on the basis that the drunkenness only might have had an effect on your ability to understand.”  To adopt that approach postulates, at least for sentencing purposes, a category of manslaughter that might be styled “doubtful murder” or, to put it in another way, suggests an approach to sentencing where the
sentencing judge assesses the possibility, the contingencies as to what the full mental state might have been.  It is the applicant’s contention that that principle is wrong; that the appropriate approach is, given the evidence does not establish that higher mens rea, to assume that it did not in fact exist, and then to go very simply to the basic factual matters which have been proved and which your Honour Justice Brennan, with respect, correctly identified.  It is the applicant’s submission that that simply was not the approach that is evidenced at page 20.

If the Court pleases, the other special leave question raised in the summary of argument concerns this:  by reason of the substitution of the manslaughter verdict in the Court of Criminal Appeal the applicant did not have, as of right, a right to an appeal court to review that sentence.  It is the applicant’s submission that the right of appeal against sentence involves more than simply having three justices of the Supreme Court determine the appropriate sentence.  A right of appeal involves an independent review by a court independent of the sentencing process and a review which encompasses a comparison between the sentence imposed and other sentences for comparable offences.

BRENNAN J:   That would cast upon this Court the function of a general court of criminal appeal in any case where the Court of Criminal Appeal substitutes a different verdict and imposes a sentence accordingly.

MR KOURAKIS:   If the Court pleases, at least in South Australia the applicant’s submission is that that duty can be avoided by a procedural device of the Court of Criminal Appeal, upon substituting the alternative verdict, remitting the matter to a single justice of the court for sentence.

DEANE J:   Did the applicant object to the Court of Criminal Appeal dealing with sentence?

MR KOURAKIS:   No, it did not, if your Honour Justice Deane pleases.  The point passed without comment or submission.  When the verdict was announced his Honour the Chief Justice simply proceeded to the reading of the allocutus and an invitation to the parties to make submissions before that court, but no, it was not specifically raised.

DEANE J:   But his Honour the Chief Justice had indicated when judgment was reserved on the appeal against conviction that the Court of Criminal Appeal would be sentencing.

MR KOURAKIS:   Yes, and his Honour the Chief Justice specifically advised counsel that they would be given an opportunity to make submissions, the inference being to the Court of Criminal Appeal, on the question of sentence.

DEANE J:   It makes this point a little difficult, does it not?

MR KOURAKIS:   If the Court pleases, in all the circumstances where a verdict of manslaughter had been substituted, the fact that counsel might not have adverted to the point that the sentence actually imposed might be so beyond sentences that had been imposed in South Australia before and that, accordingly, the right of review was being compromised, the fact that that did not occur, that that.....was not there in all the circumstances, ought not mean that a just review is lost for what is a substantial sentence on a serious offence.

DEANE J:   But it being the Full Court, or the Court of Criminal Appeal, this case may be seen as setting the appropriate benchmark in South Australia for killings such as this.

MR KOURAKIS:   If the Court pleases, that may occur and the submission I make is that if it does so, it is on the basis of a sentence imposed by the court, not by way of review and consideration, but at a time when it was involved in the sentencing process itself, and it is a sentence which is substantially greater, two to three times greater, than a sentence approved by a Court of Criminal Appeal in 1988 in the case of Jones, which is in the applicant’s outline.

It is indeed my submission that it would be unsatisfactory for ‑ ‑ ‑

DEANE J:   Except did any of those cases effectively involve torturing of the child over a considerable period?

MR KOURAKIS:   In the case of Jones, all that is discerned from the report ‑ ‑ ‑

DEANE J:   I read what was in your outline.

MR KOURAKIS:   What I can add to that, if your Honour Justice Deane pleases, is that the cause of death was subdural bleeding, the same cause of death in this case; there were bruises on the child’s body and head; the report did not give details of the course of conduct which led to those injuries, but the injuries were similar.

DEANE J:   I see.

MR KOURAKIS:   If the Court pleases, they are the applicant’s submissions.

BRENNAN J:   Thank you, Mr Kourakis.  We need not trouble you, Ms Abraham.

Mr Kourakis has put the applicant’s case for special leave in this matter succinctly and forcefully.  A sentence was imposed consequent on the allowing of an appeal against conviction for murder.  The question of sentence was reserved for consideration.  It was decided some time after the appeal had been allowed and a conviction for manslaughter was substituted.  The view taken by the Full Court was that the case was one of manslaughter by recklessness so gross that in terms of culpability it fell not far short of an intentional killing.  It is not appropriate to grant special leave to consider whether that view was correct in fact.  On that view of the applicant’s conduct we are not persuaded that an appeal would give rise to any general question of sentencing principle appropriate to attract a grant of special leave to appeal to this Court against sentence.  For those reasons special leave is refused.

AT 12.01 PM THE MATTER WAS CONCLUDED