SUPREME COURT OF QUEENSLAND

1. McMURDO P:  This is an application for an extension of time within which to appeal against conviction and sentence.  McPherson JA has set out the relevant facts and the primary issue in the appeal.  I agree that, for the reasons he gives, that the time within which to appeal should be extended to 13 September 2001.  It also seems inevitable that the appeal in due course must be allowed and a retrial ordered: although the learned primary judge directed the jury as to accident under s 23(1)(b) Criminal Code, the judge omitted to direct the jury as to criminal negligence under s 289 of the Code and, as a consequence, the applicant, it seems, was deprived of a chance of acquittal. 

2. The difficulty in allowing this appeal without a record of evidence or the benefit of full and considered submissions from both parties is that this Court is unable to authoritatively determine which directions were necessary in this trial. Depending on the evidence in this case, which of course may vary on the retrial, it may be necessary to give directions on each of s 23(1)(a) (unwilled act), s 23(1)(b) (accident) and s 289 (criminal negligence) Criminal Code: see the observations of Brennan J (as he then was), Dawson and Gaudron JJ in Griffiths v The Queen;^[1] the comments of Thomas J (as he then was) in R v Hodgetts and Jackson^[2] and more recently in R v Morgan^[3] and the observations of Atkinson J in R v Stott and Van Embden.^[4]  As there was a weapon involved in this case, any distinction between whether the death was caused by the act of the applicant or the use of "a dangerous thing" referred to by McPherson JA in Stott and Van Embden^[5] does not seem to arise. 

3. The hearing of considered submissions and access to all the evidence through an appeal record book would also enable this Court to properly consider the alternative grounds of appeal and, if appropriate, to provide some assistance on these issues for the judge conducting the retrial.

4. I would extend the time within which to appeal to 13 September 2001 and adjourn the hearing of this appeal to a date to be fixed.

5. McPHERSON JA: The applicant for extension of time within which to appeal against conviction and sentence was found guilty of manslaughter at a trial in the Supreme Court in February this year.  He was sentenced to imprisonment for 9 years.

6. The case against him was strong. In giving evidence at the trial, he admitted that he was holding a knife which penetrated the windpipe, lung and pulmonary artery of the deceased causing his death. According to the applicant’s evidence at the trial, he tried to wrest a knife from the deceased “and he pulled me or I pushed him and the knife went into him when he tripped up”. He also said that he fell on top of the deceased with the knife still in his hand.

7. The learned judge directed the jury that it was open to find the applicant guilty of manslaughter if they considered that the death was a reasonably foreseeable outcome of his acts. Such a direction raised “accident” as a ground of exculpation under s 23(1)(b) of the Criminal Code adopting the interpretation placed upon it in Van den Bemd v The Queen (1994) 179 CLR 137, affirming [1995] 1 Qd R 401 and R v Taiters, ex p A-G [1997] 1 Qd R 333, 335-338. The operation of s 23(1) is, however, subject to the express provisions of the Code relating to negligent acts or omissions, which have been held to include s 289 of the Code. Broadly speaking, that particular provision is concerned with responsibility for the result of an act caused by failure to take reasonable care of a dangerous thing of which the accused person has control. The section was held in Callaghan v The King (1952) 87 CLR 115 to import a different standard of care, which is sometimes described as the common law test in  Bateman (1925) 19 Cr App R 8 of “gross negligence”, or recklessness. See R v Scarth [1945] St R Qd 38, 45-46, 57-58; but which, in any event, is more difficult for the Crown to establish, and more favourable to the accused, than the test that applies to an accident under s 23(1)(b).

8. It would have been open to the jury at the trial to find that the knife was dangerous or was something that was in need of being handled with proper care; and also on the evidence that the applicant had it in or under his control at the time the deceased was stabbed. That possibility was not, however, made the subject of a specific direction to the jury in terms of s 289 of the Code.

9. The trial and conviction took place some time ago, and I am not altogether persuaded that the applicant has a completely convincing explanation for his delay in appealing. It is right to say that at the trial no such direction under s 289 was sought either by defence counsel or by counsel who prosecuted. On the other hand, the error or misdirection in this instance was fundamental. It had the consequence of depriving the applicant of at least a chance of outright acquittal which he might have had if a proper direction had been given in relation to s 289.

10. I have also read the reasons of Mackenzie J, and I agree with them; in particular, I agree with his Honour’s observations with respect to s 23(1)(a) as an alternative to s 289, as well as with what he says on the matter of evidence.

11. In these circumstances, the conviction cannot be allowed to stand. Time should be extended to 13 September 2001 and the appeal allowed. The conviction and verdict should be set aside and a new trial ordered on the alternative count of manslaughter. In the circumstances, it is not necessary to consider the application to appeal against the sentence imposed.

12. MACKENZIE J:  The applicant was charged with murder but convicted on 8 February 2001 of manslaughter.  Because of the lapse of time this is an application for extension of time within which to appeal against the conviction. 

13. For that reason the material before the court does not include a full transcript of the evidence. However, the nature of the critical evidence for the purposes of the application can be gleaned from passages of the applicant’s evidence quoted in the summing-up and in the written submissions on his behalf.

14. The grounds of appeal contained in the draft notice of appeal allege a miscarriage of justice because the learned trial judge had erred in the following respects:

“(i) in admitting into evidence a tape recording of a telephone call by Karen Robinson to a ‘000’ operator;

2. in admitting into evidence the account by attending police of statements by Karen Robinson;
3. alternatively in not giving proper directions as to the use which could be made of such evidence referred to in (i) and (ii);
4. permitting the Crown to call Karen Robinson but not question her, beyond her name and address, the procedure being described as ‘making her available’.
5. not giving proper directions as to the use of specific statements said to be lies.” 

Karen Robinson was the applicant’s de facto wife.

15. In the application before this Court it was sought to add a further ground of appeal that the learned trial judge should have directed the jury as to criminal negligence.

16. During the hearing of the application the issues of concern to the court were fully elaborated. Counsel for the respondent submitted that the defence was one of accident, which the jury had rejected. If the issue of criminal negligence had been left for the jury’s consideration it would have merely been another basis upon which the jury could have returned a verdict of manslaughter. Because the Crown had negatived accident any verdict based on criminal negligence would have been one of manslaughter in any event.

17. Counsel for the respondent requested the opportunity and was permitted to make further written submissions addressing the matters raised by the court, which had not been addressed in his written outline. Subsequently, the court was advised that the respondent was “not in a position to advance any further arguments in relation to this matter”.

18. The applicant’s accounts of the killing included one where he alleged that the wound was self-inflicted by the deceased. However, on the day the committal proceedings were to commence, a written statement by him was delivered to the investigating police officer. This statement was in evidence at the trial. On its face, the statement said that it was intended to rectify some inaccuracies.

19. In the statement, the applicant said that he was a chef and had been sharpening his knives in preparation for returning to work the next day. During a period when he had stopped for a cigarette, the deceased picked up a knife and appeared to be “mucking around”. The applicant told him to put it down. The deceased who was drunk became argumentative. The statement continues:

“I recall that I moved towards Jamie who was still standing in the doorway between the lounge and the hallway.  He was holding a knife in his right hand, pointing it at me, and I grabbed his right hand with my left hand and the knife was pushed into a vertical position pointing at the ceiling.  I then put my right hand on the other side of his right hand in an attempt to wrest the knife from him.  I recall Jamie pulled me backwards and then I think his back hit the bannister of the stairs and we both got tripped up and fell on the carpeted floor to my right.  Jamie fell on his back and I fell directly on top of him.  My chest fell on his chest area and I could feel the handle of the knife on my chest when this happened.

I got off Jamie and stood up.  The knife was in my right hand and blood was coming out of his chest and his nose.  I ran inside to the kitchen with the knife in my hand and yelled out to Karen to call an ambulance.”

20. In the summing-up there is extensive quotation from the applicant’s evidence. The overall impression of its effect is that during the course of a struggle the two men were wrestling over control of the knife and that during the course of that struggle they fell to the ground and the knife entered the deceased’s body. On one view of it, the applicant may have regained control of the knife but in other passages including a passage of cross-examination (which really depends on an understanding of actions demonstrated by the applicant in the witness box which are not verbally described in the transcript), it is not entirely clear whether he had regained the knife or whether the two men were wrestling over it at the time the fall allegedly happened. That was a matter for the jury to resolve.

21. If the jury were left in a state of reasonable doubt whether the knife was in the applicant’s charge or under his control at the time it entered the deceased’s body, s 289 would be inapplicable; the limb of accident referred to in s 23(1)(a) would be enlivened, since one possibility was that the entry of the knife into the deceased’s body was an act independent of the exercise of the applicant’s will, even though he had some degree of involvement in what happened.  If the jury were satisfied beyond reasonable doubt the knife was in the applicant’s charge or under his control the question whether he was criminally negligent would be enlivened if the jury were not satisfied that the stabbing was a deliberate act.  A direction appropriate to s 23(1)(b) was given, but no direction was given as to s 23(1)(a) or s 289.  The case was left to them on a basis that may have suggested that the critical issue was whether it was intended, foreseen or reasonably foreseeable that the event, the death of the deceased, might occur during the struggle. 

22. Where accident is sufficiently raised, both limbs of it must be excluded by the Crown (Griffiths v R (1994) 69 ALJR 77).  In my view, the applicant was entitled to a direction which explained the first limb of s 23 and the possible basis of criminal responsibility pursuant to s 289.  He was deprived of a possible basis of acquittal because it was not given.

23. Like McPherson JA, I have reservations over the explanation for the delay. However, in my view leave to appeal against conviction should be given in the interests of justice. For reasons above, I am of opinion that the appeal must succeed.

24. In view of the division of opinion on the issue, it is necessary to address the question whether despite the inevitable success of the appeal, it would be desirable to adjourn the matter for argument of the other grounds so that the judge who conducts the retrial may have the guidance of this Court’s opinion on them.

25. The evidence of Senior Constable Jones quoted in the summing-up is to the effect that, as the accused came towards her, his de facto wife yelled towards him “You killed him”. The accused replied “I did not”. The applicant’s de facto wife, who was called by the Crown solely to allow her to be cross-examined by counsel for the applicant, denied that there was such a conversation. Resolving this dispute was for the jury. However, the point is that, on the face of it, what the applicant said is an explicit denial that he killed the deceased. In Barca v The Queen (1975) 133 CLR 82, 107, Gibbs, Stephen and Mason JJ said the following:

“It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth.  If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether:  R v Christie [1914] AC 545 at 565.”

Leaving aside any rational tactical reason for the defence not objecting to its admission into evidence, the principle stated sets out the proper approach. 

26. With regard to the calling of the applicant’s de facto wife for cross-examination, the complaint appears to be linked to admission of evidence of the content of a “000” telephone call by her. Admission of the evidence of the content of the call would depend on consideration of whether it is merely narrative of a past event, and therefore inadmissible or is justified by an exception to the hearsay rule or some other principle. It would also require consideration of the fact that during the call, she was asking the applicant where he had stabbed the deceased but there is no evidence of the response, if any, by him to what she was saying to him. In practical terms, any judgment as to these issues has to be left to the judge at the retrial, who will need to consider them in light of counsel’s approach to the evidence.

27. Calling a witness merely for cross-examination is a common mechanism adopted where the prosecution does not accept that the witness is a witness of truth, but is nonetheless prepared to allow the defence the benefit of not having to call the witness, or calls the person to avoid criticism of the Crown case based on the absence of the witness. It is an acceptable practice especially where the Crown has not called the witness for the purpose of enabling a previous statement to be put in evidence pursuant to s 101 of the Evidence Act 1977, as to which see R v Hall [1986] 1 Qd R 462.

28. With regard to directions as to lies, such directions have to be formulated with specific reference to the lies relied on in the trial itself. The principles are well understood. The lies in the present trial were identified as those in the admittedly false account that the deceased had stabbed himself. The criteria in Edwards v R (1993) 178 CLR 193 were recited.  The directions appear appropriate, but if repeated, can be the subject of submissions in the new trial if there is any concern about them. 

29. While the course of allowing an appeal where there is only an application for leave to appeal is unusual, I am in agreement with McPherson JA that it is appropriate to do so in this case. I agree with the orders proposed by him.