Nicht zu fassen! 2011 geht der Fall weiter. Soweit ich erkennen kann, wurden die beiden Mörder aber abgeschmettert.
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/other/HCATrans/2011/286.html[*quote*]
AustLII
High Court of Australia TranscriptsSam v The Queen [2011] HCATrans 286 (7 October 2011)Last Updated: 12 October 2011
[2011] HCATrans 286
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S131 of 2011
B e t w e e n -
THOMAS SAM
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S161 of 2011
B e t w e e n -
MANJU SAM
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
HAYNE J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 2.02 PM
Copyright in the High Court of Australia
____________________
MR J.L. GLISSAN, QC: May it please the Court, I appear with my learned friend, MR W.J. WILCHER, for the applicant in S131/2011. (instructed by KP Lawyers & Barristers)
MR T.A. GAME, SC: May it please the Court, I appear with MS G.A. BASHIR for the applicant in S161/2011. (instructed by Uther Webster and Evans)
MR L.A. BABB, SC: May it please the Court, I appear for the respondents in both applications. (instructed by Solicitor for Public Prosecutions (NSW))
HAYNE J: Yes, Mr Glissan.
MR GLISSAN: If your Honours please, this is a case which unusually throws up for the consideration of the Court two aspects of the common law of involuntary manslaughter in a vehicle which is entirely suited to the determination of those issues. The real question that is presented is the adequacy of the present law as it is set in what is generally described and has become known as the Lavender test from that decision in 2005.
We set out the points at 262 of the application book as we perceive them, whether the law relating to the proof of criminal negligence is adequate for contemporary Australian society and then refer as subheadings to the decision in Lavender and Justice McHugh’s dissenting judgment in Masciantonio, and the second aspect of that, whether or not a lesser test and awareness of a high risk of death is capable of constituting gross criminal negligence whether it can extend to, as this Court said in Wilson, a risk of serious injury.
Now, your Honours, that arises in the present case clearly on the material in two ways, but it is important to note, in my respectful submission, that there was an acknowledgment in the decision of the Court of Criminal Appeal below that there is a need to reconsider the law, or there may be a need to reconsider the law. I do not want to take your Honours to this by reading passages, but at 217 of the book in the judgment of Justice McClellan, his Honour said:
It may be that in some circumstances, although I have no view on the matter, that where a mother or father comes from a culture which approaches the nurture of infants in a particular manner different from that expected of a parent who has been brought up in Australia that the difference, which may be described as cultural, may be relevant to the standard of care.
Now, if one compares that – and this I do want to take your Honours to - - -
HAYNE J: I read that, but what does is mean?
MR GLISSAN: Well, your Honour, effectively it means that the objective/subjective test that is contained in the Lavender formulation that imports some parts of a person’s persona into the reasonable person test should be extended beyond the reach of its present articulation to include cultural and ethnic matters. That is what Justice McHugh said in that passage that we relied on in his dissenting judgment in Masciantonio, there dealing, of course, with the issue of provocation, but your Honour is familiar with the passage, and that passage says:
“The ordinary person’s standard would not become meaningless however if it incorporated the general characteristics of an ordinary person of that same age, race, culture and background –
It was exactly that issue which was starkly thrown up in this case and was withdrawn from the consideration of the jury.
BELL J: How was it starkly thrown up?
MR GLISSAN: It was starkly thrown up in this way, your Honour. There was a body of material which was introduced into evidence, particularly from Dr Katyal, and from other witnesses who were called – not referred to in detail either in the judgment or in the material in the application book – which dealt with the cultural view of homeopathy in India and how that might impact on the perception of the accused.
BELL J: This was not the case that was made, was it?
MR GLISSAN: Your Honour, it could not be made because whenever there was an attempt to introduce that kind of material the evidence was said, because of the application of the Lavender test, not to be able to be admitted, and that is clear from some remarks that his Honour makes in the judgment, which is called judgment 17, which starts at page 112 of the book but the relevant passage is at page 120 of the book, paragraphs 18 and 19. There his Honour, excluding the material, says:
Submissions were made by counsel inviting the inclusion, or exclusion, of certain matters, as attributes of each Accused, which might be vested in the reasonable person who was to stand in the shoes of that Accused. Having regard to the background of each Accused, and their upbringing in India before migration to Australia in 1995 (in the case of Thomas Sam) . . . submissions touched upon, amongst other things, the relevance of certain beliefs and attitudes in India.
It was necessary –
his Honour says, applying the reasoning from Lavender –
that I keep steadfastly in mind the objective test which forms parts of the elements of the crime of manslaughter by criminal negligence. The identification of features of each Accused, which were to be attributed to the reasonable person in each case, must not have the effect of turning the required objective test into a subjective test.
In that context can I take your Honours back to what his Honour had said in relation to that, which is at 33 of the book, part of his Honour’s charge to the jury in relation to the reasonable person test? His Honour says, and it is in accordance with that:
The reasonable person, with whose conduct you must compare the conduct of the Accused Thomas Sam in this case, must be assumed to possess the same personal attributes –
He then goes on and sets that out, and then he goes on to say:
In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the Accused. Now, you might ask: Why . . . The answer to that is because this is a reasonable person test.
It can be directly contrasted with that passage of Justice McHugh’s in Masciantonio that I just took your Honours to.
BELL J: Indeed, but what I am raising with you is in the terms of this trial and the issues that were alive in this trial how the question was raised in the period of eight days before the death of the child. Was it suggested that cultural values associated with the ethnicity of the accused were relevant or did they say they did not - - -
MR GLISSAN: Your Honour, it was that very aspect that was excluded from the evidence. It was that very aspect that was not permitted to be put either before the jury and could not be used.
BELL J: You have not taken us to a ruling on evidence about that.
MR GLISSAN: No, your Honour, that is true, but can I take your Honours to what is said at 32 in the charge which deals with the issue of breach of duty in terms of the criminal negligence? Just the page before the page I have just taken your Honours to a moment since:
For present purposes, a person acts in breach of a duty of care when he omits to do something, which a reasonable person in his position would do in the circumstances.
He then goes on to say – this is line 40 of 32 -
So the Crown contends here that the reasonable person, in the circumstances which presented themselves at that time, would have obtained conventional medical care for Gloria.
Now, there was evidence that did go in from Dr Katyal and from a number of homeopathic practitioners that the standing of homeopathic care in India culturally was regarded as to be equated to and the equivalent of care offered by conventional medicine.
HAYNE J: Assume that to be so, the accused in fact took the child to hospital, did they not?
MR GLISSAN: They did. Ultimately, they did.
HAYNE J: Having taken the child to hospital why should one assume that eight days before, when the child was evidently desperately ill, that some other conclusion should be reached on account of what you describe as subjective circumstances?
MR GLISSAN: Well, your Honour, there are two answers to that I think. The first is that it may well have operated on the jury’s mind in two ways. One involves the second test to which I want to draw the Court’s attention – whether or not the breach of duty arises when there is a risk, a foreseen risk, that foreseeability test, of death rather than a foreseen risk of injury or suffering, and in this case the evidence was clear and, indeed, is not contested that at no time prior to them taking the child to the hospital had anybody at any stage and, indeed, on admission to hospital nor did anyone for the first day suggest that this child was at death’s door or that there was a risk of death or that she was so compromised to be at risk of death, so that that element of foreseeability infects both the first and second limb in this case. So for that reason there is a real need in the case as a matter of fairness and justice to permit the litigants to retry the matter with those matters agitated before a jury.
BELL J: The respondent’s submissions at 267, paragraph 2.4, give a summary account of the evidence respecting the last eight days. Again, I raise with you how that bears on the suggestion that this is a suitable case in which to extend the law respecting manslaughter.
MR GLISSAN: It is. Well, now, there are two parts to that question, your Honour, which I will endeavour to deal with them seriatim. So far as the first part, the fact part, is concerned, it is this. The evidence was not quite so stark as my learned friend’s submissions put it. Yes, they returned from a holiday in India eight days earlier. They did not seek any treatment, it is said. Bearing in mind that part of the Crown case that was advanced was the reasonable homeopath case and it was asserted that Thomas Sam was treating his daughter, an accurate way of putting this is they did not seek any treatment from any conventional medical practitioner or any other homeopath. It is not suggested that she was not being treated. Indeed, it was a fundamental of the Crown case and was left to the jury as an alternative basis of conviction that she was being treated by her father. So it is not right to say - - -
HAYNE J: The child at this point being considerably malnourished.
MR GLISSAN: Yes, your Honour - - -
HAYNE J: A matter solely within the control of the parents, I think.
MR GLISSAN: No, not on the evidence, your Honour. No, there was a body of evidence that – I do not want to say anything that might be in any way inaccurate – I think there was a body of evidence before the court that the malnutrition could have proceeded from the underlying illness, not from a lack of providing food but from a lack of capacity to process the food. The malnutrition, yes, is a fact but its cause and source a different thing. So that aspect is another matter that needs to be carefully addressed before the Court simply says it is not an appropriate vehicle because the facts are so starkly against the applicant.
HAYNE J: Now, to adopt the submissions that you would seek to urge on appeal, would the Court have to depart from or overrule Lavender?
MR GLISSAN: That is a question that is not without a degree of complexity either, your Honour, because Lavender itself contained within it, as my learned friend Mr Game’s submissions, which no doubt he will deal with at greater length, notes the passage in Lavender which is at 297 of the application book, line 10 and following, where the Court itself in Lavender noted:
“The Court has not been invited, in examining the principal issue in this appeal, to re-consider and, if necessary, modify the common law of involuntary manslaughter. The subsidiary issues require closer attention to the common law, but for the purpose of dealing with the principal issue the decision of this Court in Wilson v The Queen has been accepted as authoritative”
So not only is the Court of Criminal Appeal indicating that there are components of the Lavender test which may well not accord with modern Australian society, not only does Justice McHugh do it in Masciantonio, but the court in Lavender itself took a similar view.
So the answer to your Honour’s question is yes, but – yes, but it is an issue that has already been adverted to by the court. It is an issue which has already enlivened or has been in the past enlivened in the mind of the court, and it is a matter of real public importance and, of course, it is of general application because this is a common law test. There is no statutory component confining it to New South Wales, this is applicable as part of the general common law of Australia.
HAYNE J: It would seem to me that at least a possible point of view is that the contentions you make are inconsistent with what the plurality say in Lavender at paragraph 60, page 87.
MR GLISSAN: Your Honour, I am not advancing a proposition that it is a foregone conclusion that the Court will revise the Lavender approach. What I am putting to the Court is that this is a point which is of real importance in the administration of justice generally and it goes well beyond the present case because it raises that issue which is described either as polyethnicity or multiculturalism that Australia needs to reflect in its common law if it is to accord with society as it stands and the criminal law is to do its job.
The same is true in relation to the second limb of this argument where the departure, or divergence between the majority decision in Lavender and the English decision in Adomako arises and it is to be noted again that the majority in Lavender in a footnote noted that it had not been asked to reconsider the common law of manslaughter.
Now, the Adomako point is confining the foreseeable risk to a risk of death rather than to a risk of death or serious bodily injury as this Court had said in Wilson. So that point too is important. It is particularly important in the present case because of the factual circumstances in which it is, as I have said to the Court already, effectively common ground that there was no foreseeable risk of death – and I can give your Honours references, and perhaps I should do that at this point, to the various parts of the application book that highlight that. What was left to the jury was really serious bodily injury at AB 124. At 210 of the book at line 11:
The appellants emphasised that at the time of her admission to hospital Gloria was not regarded as at risk of death, her condition being “assessed as category 3 non life threatening.”
At 241 at line 43 it is conceded that:
It is true that the appellants were never told that Gloria was so ill that she may die.
That is in the judgment of Justice McClellan. At 242, line 10 in relation to the issue of treatment of this child:
There is nothing to suggest that having been appropriately instructed they did not carry out the task required of them.
At 275, line 38 his Honour in his judgment says:
The applicant relied on the evidence of all the doctors he had consulted in the previous months, and the fact that none of them had considered Gloria’s condition potentially fatal, as showing why he was not negligent in thinking that her condition was not serious and not requiring urgent attention.
When her condition deteriorated to the concern of the parents, when she did not respond to the treatment which was being applied to her as she had done while they were in India, on the uncontested evidence set out in the chronology that we have included in the application book - and I will give your Honours the - that starts at 184 - - -
BELL J: I thought that the case in the way it was run - - -
MR GLISSAN: Limited to the last few days, the last eight days.
BELL J: Yes.
MR GLISSAN: The point is that does a disservice to the applicant for this reason. This was a condition that ebbed and flowed, waxed and waned, however you would like to put it. She had been quite ill. There was an 80 per cent improvement on the material while she was in India. She came
back to Australia, she began to deteriorate again, but it was not an instantaneous thing, it was a gradual thing. When one is in contact – as one must recognise as an ordinary human experience – with somebody on a daily basis the gradation of deterioration is something that takes some time to observe. It was never part of the Crown case, nor was it ever asserted by anybody, that these parents were negligent in the accepted gross sense of the term.
In the Stone and Dobinson sense or the Taktak sense, they did not disregard it. They did not lock her up. They did not deny her food. They did not deny her treatment. Indeed, they offered care, they expressed concern, and the very fact that the Crown ultimately had to confine its case to a period of eight days, a very limited period of alleged neglect gives rise to an issue of the kind or level of care that is particularly apposite to resolution if the alternative test for which we contend is the test which the common law of Australia requires to be applied.
The one thing I want to say about that, your Honours, is this, that despite their acknowledged element of horror the facts in this case are amenable to a grant of special leave, an admission she was not life threatened. Justice McClellan applied, in our submission, at 241, line 42 a wrong test in talking about her need for care being apparent because that does not accord with principle and is, in my submission - - -
BELL J: His Honour has in that same paragraph referred to the evidence of witnesses concerning the “child’s condition on the aeroplane from India” painting “a picture of a child in need of immediate and appropriate medical treatment”, and he says that is “dramatically confirmed by the evidence of the doctors’ observations”. It is necessary to read the paragraph as a whole.
MR GLISSAN: I do not intend to take it out of context, but I do intend to make this submission about it, and I see my time is expired, but I do intend to make this submission about it, if I may? Putting it into context one has to recognise two things about it. One is that the need for care is not necessarily, if I am correct about the test, the need for conventional medical care. It is the need for care, and it may be informed by the kind of test that needs to be superimposed on the present existing Lavender test, the cultural issues, and the question was predominantly one for a jury properly instructed, and if we are right about the test this jury was not. If your Honours please.
HAYNE J: Thank you, Mr Glissan. Yes, Mr Game.
MR GAME: If the Court pleases. Your Honour Justice Bell asked a question about what difference or how did the conduct of the case – was it affected in any way by what we describe as the deficiencies or the matters not left in the direction on gross criminal negligence. There is a judgment of Justice Johnson which – it is none the least for the fact that it was delivered later, but in historical terms it was delivered after the ruling, and that judgment is at page – the relevant part of it is in the application book, I want to take your Honours to page 120 of the application book. That is his Honour’s judgment, or part of it, for the reasons why he ruled as he did.
In order to explain what I am going to put to your Honours it is necessary that I hand you what was MFI 56, which was Mr Molomby’s submission as to what it was that should be drawn into the test. Could I just hand that up to your Honours? It is referred to in the judgment. It is a single page. Now, I am going to focus shortly on the actual written directions given in the cases of Mrs Sam, but if you could just look at that document for a moment you will see that it includes matters such as – well, you see the list but it comes down to:
In India, it as acceptable to seek homeopathic care as an alternative to conventional medicine for the treatment of eczema.
In India, homeopaths and conventional doctors are all at the same level.
Husband worked full-time as a qualified homeopath and lecturer in homeopathy.
If I could just remind your Honours before I come to more details of this, if your Honours just look at the application book at page 172, paragraphs 134 and 135 of the remarks on sentence you will see that Mrs Sam really stood in a very different position than her husband, and I will explain the significance of that shortly. Now, if we go back to page 120 and see the ruling as to what goes in and what does not go into the direction on the reasonable person and these directions are said to be derived from Nydam and Lavender - so if you look at page 120, paragraph 20, his Honour says:
I took the view that the attributes of each Accused, which could be taken into account for the purposes of the reasonable person test, ought be objective matters which the evidence demonstrated attached to each Accused.
Now, if we come to 24 we see Mr Sam’s experience as a homeopath is included and we will see shortly the fact that Mrs Sam in her case is married to the homeopath who takes such a role is excluded. We see on page 122, paragraph 28, a reference to “Mrs Sam’s lack of medical training” is a “negative attribute” and is not included. Then in paragraph 30:
Another feature was that there was “an Indian tradition of the mother living with her own mother for the first few months of the child’s life” . . . was not an objective attribute -
Now, in our submission, that analysis just breaks down. It is not a coherent analysis. I am going to suggest a way in which one can actually try to make some sense of this. That analysis, we submit, is not a coherent analysis. There was one other thing. At page 295 you will see we set out what we said were the – shall I say the particular circumstances in which Mrs Sam stood and we set them out at paragraphs 5 and 6. A number of those matters were repeated by the sentencing judge.
Now, if you come then to the written directions which are reflected also in the oral directions, I take your Honours very briefly to the second part of the directions on Mr Sam at 127:
that the accused, as a homeopath, treated Gloria –
and then on the following page –
the following attributes of the accused –
and we see they include the fact that he is a homeopath. Now, when you come to the directions in relation to Mrs Sam which really stand at the heart of our application, what one sees is this. One sees the test stated on paragraph 1. We see the breach of duty in 1(e), then we see “gross criminal negligence” and we see the falling “so far short” and then we see the “high risk” and the “degree of negligence”. If I just pause there, the risk of death is conceptually a different thing than the level of departure, that is to say both of those things operate. Now we go to paragraph 3. Paragraph 3 – these directions actually are said to be modelled on Lavender and the Bench book, but the Crown says:
The offence of manslaughter can be established, even if no injury was intended by the accused, and even of the accused had not herself realised that she was exposing [the deceased] to the risk of injury . . . The test is whether a reasonable person in the position of the accused would have realised the risk existed.
Now, unless you are prepared to bring back all of the things in 1(f) and restate them later, that kind of becomes a radical misstatement of what it is that you need for a case of gross criminal negligence. That becomes quite important because whether or not you include these things as attributes, you will come to them, you must come to them when you come to the grossness of the breach and that is kind of the point made by Adomako in that Court of Appeal – well, one of the main points. Sorry, your Honour Justice Bell is about to ask me a question - - -
BELL J: Yes, I am. I had understood that you complained as to the direction in the sense of a contention that the law is other than the – or should be, other than is stated in Lavender?
MR GAME: It is a limited – I will explain what I say about that - - -
BELL J: What I am asking at the moment is, was there any objection to this form of written direction? Was it discussed with counsel before it was handed in?
MR GAME: There is no objection to the general form of it. I have to accept that. We do say that Adomako and the Court of Appeal case of Misra have taken the thing – Lavender is based on Andrews. Adomako came along in the context in which there was a divergence of opinion in the United Kingdom in relation to motor manslaughter cases because they imported recklessness. But, in the process, Adomako moved past Andrews and emphasised that it had to be risk of death.
BELL J: It also depends on Nydam.
MR GAME: Lavender depends on Nydam. It is true that there was no challenge to the law in Lavender and Lavender footnoted Adomako at that point.
HAYNE J: There was a challenge to Nydam which was rejected.
MR GAME: Yes, quite, but can I just say importantly when your Honour Justice Hayne asked Mr Glissan about page 87 of Lavender, that has to be understood in the context that what was being rejected there was a submission that defensive, honest and reasonable mistake ran and the critical thing about - - -
HAYNE J: The first sentence would have it that counsel attempted to persuade the Court that Nydam should not be followed and that manslaughter by criminal negligence requires a subject of appreciation by the offender that the conduct engaged in is unsafe, not honest and reasonable mistake.
MR GAME: No, no but it was a response to the assertion which appears at the bottom of 86 and top of 87 that there was an element of honest and reasonable belief. The reason it was rejected was quite critically – I understand and appreciate your Honour was one of the – was quite critically because of what appears in the middle of the page:
but it necessarily involves an element of judgment.
We are not saying at all that the accused’s own judgment about the reasonableness of what they are doing is a relevant factor. We are not saying that but we are saying that at least when you get to the circumstances in which the person finds themselves, particularly when you come to the question of the grossness of the breach, which is the point made in Adomako and Misra, then their state of mind is going to be highly relevant at that point. So what the knowledge thing in Lavender is knowledge about, shall I say, the reasonableness, the judgment aspect of the conduct and that is the proposition that is being rejected.
If I go back to page 131, paragraph 5, what is actually happening here is that the trial judge is conflating attributes with circumstances because those are actually – they are said to be attributes but they are actually a combination of age, knowledge – age, experience and knowledge of the facts in the circumstances. So what has actually happened here in paragraph 6 is - and you will see there is nothing about the relationship that she had with her husband as he is a homeopath, although that is what Mr – or her experience or her acceptance, shall I say, of homeopathy.
Now, it may be correct to say that you cannot have regard to that when you are looking – it may or may not be correct to say but, in a sense, it may ultimately not be critical because if you have a test in which you have a reasonable person and you treat that as a measuring stick, which it is, and you treat that as a measuring stick but at the first level in terms of identifying the breach you look at the circumstances in which the person found themselves then you will find yourself squarely and properly addressing yourself to the actual circumstances in which the applicant, Mrs Sam, found herself but more so in a case like this, when the whole issue ultimately, as the judge put to the jury, was about the grossness of the breach and you must, very distinctly, look at what those circumstances were and how the applicant perceived them. What has actually happened here is that attributes and circumstances have kind of got muddled up together and that is all there is. There is nothing else that goes. So Mr Molomby does not get to put his case.
BELL J: Well, Mr Molomby got an opportunity to comment on the adequacy of the written directions before they were distributed, did he not?
MR GAME: No, he did, but he can – I am talking now about 5 and 6 and that 6 - I have checked the transcript, 6 can be taken as a rejection of what Mr Molomby put in MFI56. I do accept that there is an element of this of hindsight, but when you look at these directions ultimately and when you have regard to the very nature of the thing that one is involved in, in gross criminal negligence, they do not come close to getting to the heart of what the issue is.
Now, I appreciate that there is a question about whether or not we are challenging Lavender, but Lavender does not contemplate this. Lavender does not contemplate a set of directions which confine a case in this way. In fact, in the joint judgment – in the plurality’s judgment the Chief Justice emphasised – sorry, whoever wrote the judges - it was emphasised that a number of times the trial judge in that case emphasised that you had to have regard to what was perceived by the driver of the vehicle himself in assessing it. But you do not have that in this case.
There is another thing I need to explain also, which is that it is the last days which are ultimately relied on, but the Crown quite critically relied on the history in terms of what occurred in India, what occurred in that period leading up to it, and that was an important part of the case and that is in fact included.
So we start by saying if one is going to engage in the exercise of identifying attributes, then the reasonable person must take into account the specificity of the particular person, whether it be the cultural background, the subservience to the husband or the like. If you do not pick it up at that level you are going to have to pick it up in a critical way when you identify the circumstances in which that person found themselves when you apply - - -
HAYNE J: The application of the law of manslaughter by gross criminal negligence would vary according to the cultural and ethnic background of the accused?
MR GAME: No, well, in its application the outcome may be different, yes, but the law would be absolutely the same. The law would - - -
HAYNE J: How?
MR GAME: Well, the law is the same because it says place the reasonable person – you still have the measuring stick, but you place the reasonable person in the position of the accused, that is to say, in the position – what it means is this, that when you look at the circumstances you do have regard to the perceptions of the person. So a subservient relationship, for example, but what is involved in the reasonable person test is a judgment and it is a judgment of a normative kind. When you come to the grossness of the breach, you must look at all the circumstances including the person’s state of mind.
Perhaps if I could just – I am going to run out of time shortly. If I could just refer your Honours to two passages, one from Adomako and one from Misra. The one in Misra – paragraph 56 - the passage I just wanted to refer to is about six lines in, the evidence referring to:
evidence as to his state of mind. However when it is available, such evidence is not irrelevant to issue of gross negligence . . . In Adomako itself, Lord Mackay directed attention to “all” of the circumstances in which the defendant was placed –
So if one looks at Adomako [1994] UKHL 6; [1995] 1 AC 171, I wanted to take your Honours to 186 to 187. Now, what is happening here is that the recklessness test that has come in through the motor manslaughter cases is being rejected, but there is a long passage at the bottom of 186 where Lord Atkin’s speech in Bateman is referred to where it deals with the very high degree of recklessness and reference to “indifference to risk”. Then on the following page, page 187, we see the passage where Seymour is disapproved and then:
If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred.
We would submit that you cannot exclude by any means the accused’s perceptions, the, shall we say, the accused’s relationship with another person such as her husband and yet that is what has gone out of here. What I am saying, we would submit, in no sense turns this exercise into a relative exercise. The measuring stick, the judgment, remains the same. It allows for the, shall I say, the specificity of the situation. The alternative is - - -
BELL J: Is a subservient wife who comes from a Caucasian background the same as a subservient wife from another background - the relevant characteristic is that the woman is perceived as being subservient in her attitude to her husband.
MR GAME: In measuring the grossness of the breach, yes, it could be. So I am not trying to in any sense introduce any form of cultural relativism. I am just trying to give a sensible way in which you can have an applicable test. Now, my red light is on. Could I just say one thing about sentence which was that in the remarks on sentence two things were said - shall I just finish it off?
HAYNE J: Put what you want to, but be brief, Mr Game.
MR GAME: Sorry, I just wanted to say two things. One is that at paragraph 255, paragraph 177, I wanted to draw your Honours’ attention to the – we say the fact that there are nine cases really does not support any element of general deterrence in a case like this. At page 252, paragraph 166, again, it is no answer on the question of sentence but the submissions, as it were, are said to seek to traverse the verdict of the jury when one is looking at the specificity of the applicant’s situation. Those are our submissions, if the Court pleases.
HAYNE J: Thank you, Mr Game. Mr Babb, we would be assisted by hearing what you want to say about the conformity of the proposed test with what was decided in Lavender.
MR BABB: In my submission, the test did conform with what was decided in Lavender.
HAYNE J: The proposed test. I am asking you about the test proposed by the applicant.
MR BABB: That would not be in conformity with Lavender, in my submission. When one looks at Lavender it is a quite different case. Where in Lavender the discussion was about knowledge and circumstances, that was in the factual scenario of a man in a truck driving into - - -
HAYNE J: We know the circumstances of Lavender. What I want to know is how does the principle which the applicants would seek to have us establish sit with the principles decided in Lavender? If there is no disconformity so be it. If there is disconformity, what is it?
MR BABB: There is no disconformity. The way that it was put in this case is the way it should properly be put in terms of it being an objective test. Your Honours, in terms of the proposed direction, those features were substantially borne out in the trial judge’s directions. There are only a few instances where those features were not put to the jury and they cannot have been of any great moment in this case. They were simply not relevant, your Honours. This was a case where the circumstances were so extreme that none of those matters that were put forward that were not taken up could have been of any assistance in determining the matter.
HAYNE J: Yes, I think we need not trouble you further, Mr Babb. Is there anything either counsel would wish to say in reply?
MR GAME: No, your Honour.
MR GLISSAN: No, your Honour.
HAYNE J: The Court will adjourn for a time to consider the course it will take.
AT 2.48 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.51 PM:
HAYNE J: The decision of the Court of Criminal Appeal applying principles concerning manslaughter by criminal negligence established by this Court in R v Lavender [2005] HCA 37; (2005) 222 CLR 67 is not attended by doubt. The evidence led at trial provided no arguable foundation for the applicants’ submissions that this Court should grant special leave to consider changing the principles that were engaged in this case. Special leave to appeal is refused in each matter.
AT 2.52 PM THE MATTERS WERE CONCLUDED
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