Preston v The Queen, Gillard v The Queen

[2002] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2001

B e t w e e n -

GERALD DAVID PRESTON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A9 of 2001

B e t w e e n -

KEVIN WAYNE GILLARD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2002, AT 2.02 PM

Copyright in the High Court of Australia

_______________________

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with my learned friend, MR M.J. BARNETT, for the applicant, Preston.  (instructed by George Mancini & Co)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear for the respondent with MR M.D. WALTER and MR A.P. KIMBER.  (instructed by the Director of Public Prosecutions (South Australia))

MR D.H. PEEK, QC:   May it please the Court, in the matter of Gillard, I appear with my learned friend, MR J.A. RICHARDS.  (instructed by Lipson Street Chambers)

GUMMOW J:   We will hear you, Mr Kourakis, and then you, Mr Peek.

MR KOURAKIS:   If the Court pleases.  If the Court pleases, I deal firstly with the special leave application ground that is based on the failure to publish reasons on the applicant’s ‑ ‑ ‑

GUMMOW J:   Now, an extension of time is needed, is it?

MR KOURAKIS:   It is, if the Court pleases.  I seek that extension of time.  The affidavit of Mr Mancini can be found at page 870.  The judgment was delivered about four days before Christmas and he explains the process in finally obtaining instructions and issuing the application in that affidavit and I seek ‑ ‑ ‑

GUMMOW J:   Yes, you have that leave.

MR KOURAKIS:   If the Court pleases.

KIRBY J:   Where does this complaint about the delay lead?  I mean, what relief could this Court give?  It is just a general grumble.

MR KOURAKIS:   I am sorry.  The complaint about the?

KIRBY J:   The delay in the provision of reasons.

MR KOURAKIS:   Your Honour, no reasons for the failure to give the name of the witness.

KIRBY J:   I see.  This is another matter then.  This is the question of the public interest immunity.

MR KOURAKIS:   Yes.  Your Honours, it arose in this way.  After the conviction and in the course of the appeal process, the Crown disclosed that there was information that a person in Victoria had spoken to an important Crown witness, Ivy Preston, married to the father of the applicant.  She had given evidence about handing over a gun, that was the gun used in the crime, to Preston.  There was a dispute about that evidence.  So she was an important Crown witness.

KIRBY J:   But is this not just ordinary in what we used to call informer’s immunity?  I mean, is that not the basis of the immunity?

MR KOURAKIS:   That was essentially the basis that was claimed and two questions arose:  one, whether, in the circumstances, the person in Victoria was an informer, and the second was, if the person was an informer, nonetheless, should the information be disclosed if it might assist the defence.

HAYNE J:   What information should be disclosed?

MR KOURAKIS:   Your Honour, it started off with simply wishing to have the name of the person so that ‑ ‑ ‑

HAYNE J:   You wanted to have a good fish.  Now, what did you really want?

MR KOURAKIS:   Your Honour, it was not fishing because of the provision of the information by the Crown.  The applicant and his advisers had a very good idea of what this witness was going to say and your Honours can see it, for example, firstly summarised at page 701 of volume 3 of the application books.  Sorry, that is the application at 701, but at 704 paragraph 2 of the affidavit, Mr Millsteed, the Crown Prosecutor, advised myself and other representatives of the accused that there had been a communication from Victorian police to the effect that Ivy Preston informed the Victorian source that she had lied and exaggerated for the police at the trial and that essential information was elaborated on and appeared in other documents that were supplied, but without the name of this potential witness.

For example, at page 708 a heavily edited statement of Ivy Preston obtained by the Crown in response to this allegation that she, Ivy Preston, had told someone in Victoria that she had lied and exaggerated, is set out.  In that statement Mrs Preston attempts to put an explanation on the information that had been obtained from Victoria and, in particular, at page 711, Mrs Preston’s explanation for that information appears.

KIRBY J:   Would you just tell me what you say is your theory of the case that makes this relevant at trial, because it seems a bit of a sideshow.

MR KOURAKIS:   No, at trial the identity of the killer was the issue.  There was evidence from a number of different sources that the Crown relied on, but one important ‑ ‑ ‑

KIRBY J:   The mother and the brother came along and gave evidence against your client.

MR KOURAKIS:   Yes.  The brother, Ronald Preston, gave evidence, but largely to do with dealings around the car, the vehicle that was used for the offence, but Ivy Preston’s evidence was, nonetheless, an important part of the Crown case, connected with other evidence, but very important because it had to do with the weapon that the Crown alleged was used in the robbery and it was disputed evidence.  It was very important evidence.

Your Honours, that goes more to the question, ultimately if special leave is heard and the appeal is heard, perhaps, as to what might happen, but our complaint, in so far as this is concerned, is that the application was made so that the name of that witness might be disclosed, obviously with a view to calling that witness to give evidence as part of a fresh evidence ground of appeal before the Court of Criminal Appeal.

The first step was to find the person, obviously.  It was there that the Court of Appeal considered the matter and decided not to disclose the name of the person, but that decision not to disclose the name of the person from Victoria to whom Ivy Preston had apparently admitted lying and exaggerating for the police was simply announced and no reasons were ever published.  In subsequent communications it appeared from the Court of Criminal Appeal that there were reasons recorded somewhere ‑ ‑ ‑

HAYNE J:   Let me just understand what is happening.  There is a trial.  The accused is convicted.  The accused appeals to the Court of Criminal Appeal.  In the course of that appeal, there is what?

MR KOURAKIS:   After the appeal had been instituted, but before it was finally disposed of ‑ ‑ ‑

HAYNE J:   A suggestion, “I might have fresh evidence.  I don’t know whether I do.”  Yes, where do we go from there?

MR KOURAKIS:   Well, the suggestion that there might be fresh evidence appeared from the Crown’s disclosure that there was a witness in Victoria who had reported to police that the important Crown witness, Ivy Preston, had admitted to her, or him – the person in Victoria – lying and exaggerating for the police at the trial of the applicant.

GUMMOW J:   This would go to the credit of that evidence at the trial, would it?

MR KOURAKIS:   Credit in the sense of being directly contradictory of it if the witness was called and said in evidence before the Court of Criminal Appeal that Ivy Preston had lied or exaggerated.

HAYNE J:   It would not contradict anything.  It would be evidence going to the credit of a witness at trial, would it not?  It does not go to an issue.

MR KOURAKIS:   If the Court pleases, it would go to her credit on the central plank of her evidence, that is, Ivy Preston’s evidence, against the accused.  It would be a prior, or a subsequent perhaps, in this case, inconsistent statement.

KIRBY J:   We have been told by the Registrar of this Court that a ruling of the Court of Criminal Appeal and the documents relating to the application have been placed in a sealed envelope in the Court of Criminal Appeal file.

MR KOURAKIS:   Yes.

KIRBY J:   So that the issue is whether, in the premise that has just been elucidated, it is something which we would need to get into in order to understand the injustice that you say was suffered by your client at the trial.

MR KOURAKIS:   We get into in the sense of looking at the reasons.  Well, it might be, but if your Honours please, our primary complaint is that it is a curious procedure or event, in any event, not having access to those reasons.  There are reasons for the ‑ ‑ ‑

KIRBY J:   Presumably – I thought I saw somewhere, it may be in the respondent’s submissions – the reason would be that the reasons would disclose the very matter which the Court of Criminal Appeal considered had to be not disclosed.

MR KOURAKIS:   If the Court pleases, that may be so.  The Court of Criminal Appeal in simply announcing its decision simply said, “In view of the nature of the objection to the application – that is, the application to have the name revealed – we consider it inappropriate to publish the reasons for our decision.”  So that would suggest a reason along the lines postulated by your Honour Justice Kirby.

KIRBY J:   Normally there is a way by which you can formulate reasons without going into the detail that give the substance of your reason without identifying, but it seems a small point in this case.  It is because it is really just a leg up to cross‑examine the mother, and you have bigger fish to fry.

GUMMOW J:   You should have.

KIRBY J:   Bigger problems to overcome.

MR KOURAKIS:   If the Court pleases.  In my submission, it certainly is possible to publish reasons which would take into account the concerns of the court and the primary consideration should be the publication of reasons so that the applicant, the appellant before the court ‑ ‑ ‑

KIRBY J:   Well, even assume that we agree with you about that, that they should have used something like the leveller expedient and found a way around and expressed it, it is two steps removed from getting this Court involved in the matter.  It is not relevant to an issue.  It is potentially relevant to credit, but then only potentially if it has some substance that would be useful for cross‑examination, and the mother was but one witness in a trial.  It is a long way distant from the enlivening of the interest of this Court, I would have thought.

MR KOURAKIS:   The only matter that would concern this Court is the determination of that question, whether it ought to have been disclosed and whether there was an error of law ‑ ‑ ‑

GUMMOW J:   I think you are using up your time, Mr Kourakis.

MR KOURAKIS:   If the Court pleases.

KIRBY J:   Do you have nothing better than that one?  That is the point you have opened with, Mr Kourakis.

MR KOURAKIS:   Your Honour, there is more.

KIRBY J:   A king hit.  It seems a rather weak king hit.

MR KOURAKIS:   There is more.  Your Honours, can I turn to the question of the complaint that is made about the hearsay use, in our submission, of certain statements made by the co‑accused.

GUMMOW J:   Now, which page is this of the written submissions?

MR KOURAKIS:   If the Court pleases, that appears at page 879 of book 3, page 4 of the submissions under the heading “Hearsay”.

GUMMOW J:   Thank you.

MR KOURAKIS:   The passage that the applicant says discloses error in this matter is at page 777 of book 3 in paragraphs 70 and 71.  Your Honours, the actual evidence ‑ ‑ ‑

GUMMOW J:   This is Gillard’s demeanour, is it?

MR KOURAKIS:   Yes, that is right, and the passage is dealing ‑ ‑ ‑

GUMMOW J:   You have to focus on what the respondent says about that at 887, 3.1.

MR KOURAKIS:   If the Court pleases, in our submission, it is far ‑ ‑ ‑

GUMMOW J:   They agree, in effect, it becomes a miscarriage of justice point.

MR KOURAKIS:   Yes, but, your Honours, what the respondents say is a minor misdirection really amounts to this, that a co‑accused on trial and said to be, in effect, the getaway driver of the applicant, Preston, says to the police – and this was led at the trial – that he is in fear of Preston and that Preston might kill him, and it is said that telling the jury that the demeanour of the co‑accused when he made those statements to police was admissible against Preston was a misdirection when, in my submission, far from being a misdirection, it led to the jury the demeanour of Gillard which could only be given any weight or given any real use by the jury if they, in fact, took into account the words.

They had a positive direction from the trial judge that Gillard’s demeanour when he was saying those things, “Preston might kill me”, was relevant against Preston.  The jury had to work out how it was relevant.  No apparent relevance other than through the statement that accompanied it could be shown.  The effect was, in my submission, to leave the jury in a position where they were likely to use and rely on the statements about Preston to give any sense to the demeanour which the learned trial judge had told them could be used against Preston.

In my submission, far from being a misdirection, an invitation to use the hearsay narrative of the co‑accused to the police in a way so prejudicial to the applicant, Preston, was a serious misdirection.  The Court of Criminal Appeal, at page 777, thought that that direction of the trial judge was, in fact, favourable to the accused because, in their opinion, the jury were entitled to consider Gillard’s statements to the police as evidence of his state of mind which was relevant, circumstantially, to the case against Preston, that is showing that Preston was the man who Gillard had driven to the site to commit the murders.

GUMMOW J:   Did not Preston say he was not there?

MR KOURAKIS:   Yes, that is right.

GUMMOW J:   At all?

MR KOURAKIS:   That is right.  Now, your Honours, in those circumstances, in my submission ‑ ‑ ‑

GUMMOW J:   Where did he say he was?

MR KOURAKIS:   He was a lecturer and in the city lecturing.  There were some movements during the day, but basically the effect ‑ ‑ ‑

GUMMOW J:   There were some telephone calls en route, were there not?

MR KOURAKIS:   Yes, if the Court pleases.

GUMMOW J:   Which may have impressed the jury.

MR KOURAKIS:   Your Honour, it may have, but similarly, the statement of the co‑accused, at a time when the police said that he appeared in fear, about Preston, may well have added to and influenced heavily their assessment of what I acknowledge were clearly other items of evidence.  It is seldom that the Crown goes along with simply one item of evidence, but,

in my submission, the admission of this evidence and the direction to the jury about how they could use it left a serious risk of miscarriage.

If the Court pleases, the only other submission I make in support of the application is the directions to the jury on the use they could make of evidence of Preston’s prior previous bad character.  Your Honours, the applicant’s summary of argument relies also on an argument that the learned trial judge was wrong to allow cross‑examination of Preston because he had given away his shield by adducing evidence of his own good character and by imputations unnecessarily made about Crown witnesses like his brother and I do not press those grounds.

The only remaining ground I press, your Honours, is the ground as to how that evidence was then used.  Can I take your Honours to page 805 of book 3 and to the passage in paragraph 156, where the relevant passage from the summing up of the learned trial judge is set out?  Your Honours, the effect of that passage, in my submission, is to say that these two men, being the two accused, have the sort of relationship which you would expect to exist between the two offenders or two persons who, in fact, killed Knowles.  Their sort of relationship is one where, because of their previous criminal conduct, they had trust in each other to perform their respective criminal roles and to be quiet about their criminal roles after the commission of it.

In my submission, to tell the jury that their relationship was such as you would expect to have found between the actual offenders is not relevantly different from a direction or a form of reasoning which is, this is the sort of person who might commit the crime.  To say these two people have the sort of criminal relationship which might have existed between the offenders in this case is not relevantly different from that.  So, although put as part of the circumstantial matrix, as the Court of Appeal put it, that is the relevance of how the evidence was left, as the Court of Criminal Appeal put it at paragraphs 160 to 161, does not fully explain the way in which it has been put.  In my submission, it, in effect, has been left as a form of propensity reasoning or, at least, not much different from the traditional way in which that is put.  If the Court pleases.

GUMMOW J:   Yes, Mr Peek.

MR PEEK:   May it please the Court, there is an extension of time required in this matter.  My learned friend, Mr Millsteed, is aware of the circumstances and has indicated he has no objection to that being granted.  I ask that the Court give that extension of time.

GUMMOW J:   Yes, you have that leave.

MR PEEK:   If it please the Court.  May I go immediately to what I say is the substantial matter in this application, that is the manslaughter point.  That commences at my page 4 of the summary of argument at book 3, 905, halfway down the page under the heading, “FIRST SPECIAL LEAVE QUESTION”.  After delineating the unlawful and dangerous act test in Wilson v The Queen, it is then submitted that the Court of Criminal Appeal erred in its consideration of the doctrine and its application to the situation before the court.

HAYNE J:   Well, the situation, or the way in which this trial was conducted.  Is that not to be tested against the way in which this trial was conducted, namely as an all or nothing trial?

MR PEEK:   Your Honour, the answer to your question is both.  It was relevant to both.  The situation was this, as the Court knows from the papers.  Gillard was, as it were, the servant rather than the master in relation to the relationship with Preston, that they had a history of doing a number of crimes of dishonesty together over the years, but never anything such as this and, therefore, it was Gillard’s position to the police when he was interviewed that he believed he was being recruited for some sort of theft or robbery, certainly not a homicide, and he would not have involved himself in that.

HAYNE J:   And did not the judge tell the jury that if they were in doubt that that may have been Gillard’s intention, he was entitled to acquittal?

MR PEEK:   Indeed, he did, and that is why, or partly why, I am going straight to the manslaughter point, because that complicates the situation both as the trial was conducted and in the objective circumstances, because what occurred was that Gillard stated to the police what I have just put to the Court but did not give evidence at the trial.

Now, there may have been a number of reasons for that.  Clearly the position, as he put it to the police, was diametrically opposed to the position of Preston, the more dominant of the two, because, of course, Preston’s position was that he, Preston, was never there, so that Gillard’s story was diametrically opposed to it.

Now, in those circumstances, the Crown Prosecutor was somewhat, we would say, light on evidence in relation to rebutting the statements that were made by Gillard to the police that he believed only a robbery was in the offing because everything that Gillard said, and what he did, such as stealing a getaway car and burning it afterwards and so forth, were consistent with both scenarios.

KIRBY J:   Could you tell me this, has this Court ever passed on – you see, the suggestion is that your client ran the case on a murder or nothing in the expectation that the jury would acquit him of murder and that now he comes along and wants, as it were, to have a second bite at the cherry, different to the way he presented the case and says he should have had the opportunity of having a manslaughter verdict.

Now, has this Court ever said anything about that?  We have another special leave application – I think it is on tomorrow – involving a robbery that went bad in a pool hall here in Adelaide, and the jury there did return a verdict of manslaughter in the case, but I do not remember, at the moment, how that case was run.

Now, what is the principle that governs where you have run the case for murder or nothing, had all the advantage of that at trial, now you come along here to the final Court in the country saying, “We should have had a chance at manslaughter.”  See, because if you pitch it that way, you run a risk at trial that the jury will compromise and say, “Manslaughter”, and your client properly advised, obviously thought, “Well, I’ll put all my cherries in the basket of murder, because then I’ll get an acquittal.”  Now you want to have another go.  What is the principle that we have to apply in that case?

MR PEEK:   The principle is, in fact, in those cases such as Pemble v The Queen and I have alluded to several of such High Court decisions in my outline of argument.

KIRBY J:   But what is a trial judge to do if counsel are, for very good strategic and tactical reasons, presenting the case as a murder or nothing, is the trial judge to butt in there and say, “But, ladies and gentlemen of the jury, you can come to the conclusion”?  I could imagine some trial counsel would get rather upset by that.

MR PEEK:   Yes, of course that is so.  I know exactly what your Honour is putting, but we submit that, if I can go to the respondent’s outline of argument on this point at page 916, 3.5 ‑ ‑ ‑

KIRBY J:   Your client had a pretty good case for manslaughter.

MR PEEK:   Well, I know, and that is why it is so unfortunate.

KIRBY J:   But that is not how you ran the case.

MR PEEK:   Your Honour, to be fair to the accused, he did lose his counsel before this.  He was bereft of counsel and a solicitor was ‑ ‑ ‑

KIRBY J:   There is some evidence that he is a person with a psychological discretion.

MR PEEK:   And he has psychological problems and absolutely no money at all and certainly a substantial part of the case towards the end was run on a pro bono basis by a solicitor who volunteered to do so.  Now, I just put that as a factor to be taken into account.  Now, the principle we say is, indeed, exactly correctly ‑ ‑ ‑

KIRBY J:   I am sorry, I want to get this clear.  You say lost his counsel.  Did he have counsel?

MR PEEK:   Earlier on he did, earlier in the case he did, but that was before the question of manslaughter was raised.  The Court will see in the papers that there is reference to discussions between Mr Richards, who was then conducting it, and the judge and, indeed, my learned friend, Mr Millsteed, the Crown’s attitude being that manslaughter should be left, as the Court will be aware, and it was strongly put that manslaughter should be left by the Crown.  But, yes, the attitude, as conveyed to the court by Mr Richards, was that it should not.

KIRBY J:   And who is Mr Richards

MR PEEK:   Mr Richards is a solicitor, not counsel, but he is appearing today as my junior.

KIRBY J:   You tell us that you say that was a mistake.

MR PEEK:   Well, with respect, I would say it was a mistake, but in any event, there was an overriding duty on the trial judge to put manslaughter, irrespective of the position advanced by counsel.

KIRBY J:   The poor trial judges of Australia.  They have to carry this burden for themselves that runs contrary to the way a case is being conducted.

MR PEEK:   I understand that and perhaps I will put it this way, that certainly that, up to now, has been, in fact, settled law and the respondent accepts that.  At 3.5 on page 916, if I can just read this paragraph:

The extent of the obligation upon a trial judge in a trial for murder to put manslaughter is clear.  If on the evidence it is reasonably open to the jury to return a verdict of manslaughter the trial judge must advise the jury of this option.  This duty exists even if manslaughter is expressly disavowed by the defence –

and referring to the cases such as Gammage, Varley, Pemble, Van Den Hoek and there are, of course, quite a few others in the Privy Council, Bullard v The Queen and so forth.  Those are very strong cases in which experienced counsel have said, “I definitely do not want you to put manslaughter”, or words to that effect, “because, of course, it may tend to undercut what I want to run as a murder or nothing case.”  Now, here, the situation was that Gillard said to the police, “I did not see a gun in the possession of Preston – did not see a gun.”

KIRBY J:   There is a suggestion in the Court of Criminal Appeal that he saw the gun being cocked.

MR PEEK:   Yes.

KIRBY J:   Now, what was the evidence of that?

MR PEEK:   I want to come to that immediately, if I may, your Honour.  Thank you for that.  Can I just say a sentence before I do?  It is that the prosecution were very intent on making an argument that the gun had to be produced by Preston and, indeed, had to be cocked and, therefore, Gillard must have seen the gun and, therefore, that reflects on his knowledge as to what was occurring.

Now, the Court of Criminal Appeal at page 851 of the book, to answer your Honour’s question, three lines from the bottom, paragraph 336 is dealing with, and we say endorsing, the prosecution arguments about “he must have seen the gun produced, he must have seen it cocked”, and in the last three lines:

However, if it is assumed that he contemplated only a robbery, it is more difficult to find support for a finding that he nevertheless knew the gun was loaded.  Nevertheless, as we have said, the prosecution based its argument that manslaughter was open in these circumstances on the ground that Gillard contemplated that the robbery attempt would involve an unlawful and dangerous act.

Now, the point is that the matter of cocking could only be referable to charging a loaded gun.  There was expert evidence from Sergeant Golding as to the operation of the Luger semi‑automatic pistol.  It is in the evidence.  The Court will appreciate it is a magazine pistol rather than a revolving‑cylinder pistol and the function of the two hands was one to hold the butt and the other to pull back a toggle and release it which fed a cartridge into the chamber from the magazine so that the gun could be fired.

Now, the point about that is that if Gillard, on the Crown argument, were to see that, then, in those circumstances, he would have knowledge that the gun was loaded.  Now, that is a matter that was overlooked by the Court of Appeal and the court then, from that position, goes on to consider the principles in relation to unlawful and dangerous act.

Can I go forward a few pages after their Honours have done so to 855 in the Court of Appeal judgment and the reference to the case of Tomkins at paragraph 345 and about in the middle, five lines down, in that extract:

But if he knew only that at some stage in the course of the carrying out of the criminal plan there was a real risk of a killing short of murder, he will be guilty of manslaughter. 

Going to the end of that extract, the court conclude:

However, it cannot be said in the present case that, if Gillard contemplated no more than robbery, that there was an ever‑present and real risk of a killing in some way.

Now, we would, with respect, take the most serious issue with that conclusion because, of course, it is a well‑known and regrettable fact that time after time killings do occur in the course of a robbery where the robber goes in with no intention to kill anyone at all, but with a loaded gun.  The gun goes off, either because of the action of the victim perhaps, or purely as an accident, or purely because the robber is nervous and a man is killed.  We submit the matter of principle ‑ ‑ ‑

KIRBY J:   That is behind the doctrine.  That is the risk you run if you get involved in armed robberies.

MR PEEK:   Absolutely.  We agree with that, and that is why we say the Court of Criminal Appeal was quite wrong when it said it cannot ‑ ‑ ‑

HAYNE J:   Let it be assumed that that is right.  What do you do with the direction given by the trial judge recorded at 828 of the application book, namely that if the:

perpetrator went there to kill Mr Knowles and the accused Gillard, went there to carry out theft, nicking or robbery, then there would be no common purpose.

MR PEEK:   Yes, I appreciate that, but that goes to the question of murder, really, because we put forward a cohesive matter of principle which we submit should be applied here in the situation of two persons and the application of the unlawful and dangerous act doctrine of manslaughter, and that is in my summary of argument.  Perhaps I can just answer your Honour by going directly to that.  It is at page 905, my paragraph 15.1, that the law is or should be declared to be that if the accused party takes part in a venture involving an unlawful and dangerous act in relation to a particular person, or class of persons, and that person, or member of a class, is killed by the infliction of violence by another party to the venture, the accused party will be guilty of manslaughter.

That will be so despite the fact that the party who inflicted the violence had a different object, intention or motive than the accused party provided the death that, in fact, occurred would have been objectively viewed as a possible incident of a venture of the type envisaged by the accused party.

HAYNE J:   I am not asking you to debate the accuracy or inaccuracy of that proposition of law.  What I am asking you to address is how that proposition of law arises, given the way the case was conducted.

MR PEEK:   Well, your Honour, I can only answer that by saying that up to now, the settled position of the High Court, in my respectful submission, is that irrespective of the way that the case was conducted there was an overriding duty on the judge to put what I have been submitting, that there was a clear factual basis for the verdict of manslaughter and, therefore, the attitude taken by the applicant’s solicitor could not bind what the judge did and, indeed, the judge was obliged to put manslaughter.

HAYNE J:   That is was obliged to say, “If you decide that the purpose of Gillard was confined to robbery, he may, nevertheless, be convicted of an offence, the offence of manslaughter.”  Whereas, what the judge told the jury was, “If you find a doubt that the accused, Gillard’s, intention was confined to robbery, you must acquit him.”

MR PEEK:   Yes, because that intermediate position had to be put and, indeed, the recent decision of the High Court in Gilbert is a very similar situation in which, indeed, the evidence against Mr Gilbert was heavier, I would submit, than that against my client.  That was a situation where the Court overruled the previous doctrine that if the judge has failed to put manslaughter but the jury comes in with a verdict of murder, that, as it were, cuts away the defect.

KIRBY J:   I think Justice Hayne and I dissented in Gilbert.

MR PEEK:   Well, I do rely on the majority, I am afraid, your Honour, and it is a very clear decision.  If you go to the evidence in that case – and I have not time to do so ‑ ‑ ‑

KIRBY J:   I remember it vividly.

MR PEEK:   Then, perhaps, your Honour would agree that it really was heavier than against Gillard, because ‑ ‑ ‑

KIRBY J:   Yes, the evidence ‑ ‑ ‑

MR PEEK:   Much so.

KIRBY J:   I consider that there is an arguable case of manslaughter in this matter.

MR PEEK:   In this case?

KIRBY J:   The issue that was worrying me was whether or not, in the way you conducted it, you should be allowed a second chance, but you say a mistake was made – and I think, if I could say so, it is to your credit that you acknowledge that – and that that should not redound to the disadvantage of your client and the principle is clear.

MR PEEK:   Absolutely, and the court does not shut its mind entirely ‑ ‑ ‑

KIRBY J:   If the principle is clear, why do we need to intervene to uphold it again?  Answer, because it would otherwise be a miscarriage of justice.

MR PEEK:   I am sorry, I did not follow that question.

KIRBY J:   We sit here to establish principles.

MR PEEK:   Yes.

KIRBY J:   If the principle is clear, we do not have to re-establish the principle.

MR PEEK:   Your Honour, I submit they do, because in the formulation of the outline there is a clear conflict, at least according to the Crown, between McAuliffe on the one hand and the English case of Reid, upon which I heavily rely, on the other, the Crown saying that, in fact, manslaughter would not apply here.  It is a very narrow doctrine of Anderson and Morris that would govern it.  We say it is a much wider doctrine which has not been expounded upon by this Court and that ‑ ‑ ‑

KIRBY J:   Is there a provision in your law here, as in New South Wales, that a jury may always bring in a verdict of manslaughter?

MR PEEK:   That is a common law position, as I understand it, and there is no statutory provision addressing ‑ ‑ ‑

KIRBY J:   It is in the Crimes Act in New South Wales.

MR PEEK:   Yes, but the point is this.  The matter of manslaughter was never mentioned to the jury at all, so they would not have known of that, or known of it necessarily.  Now, the matter of principle, we say, is a new matter of principle and basically it is this, that if a man ‑ ‑ ‑

KIRBY J:   How does one instruct a jury, murder, manslaughter, acquittal in a case like this?

MR PEEK:   That is the matter of principle, in a case like this, where you have the secondary party, my client, believing one plan is in the offing; the person who actually shoots being the other person who has a different plan altogether.  But the point is that Gillard, on the prosecution case, saw the gun, knew it was loaded and, therefore, was party to an unlawful and dangerous act, namely, at the least, the presentation of a loaded firearm to frighten.

Now, we say, contrary to certain cases, that that is sufficient, that the running of that risk, even though he does not know the precise plan by Preston, is enough to enliven a verdict of manslaughter and we get that from the case of Reid – and I have not time to read that, but it is set out from 707 onwards in detail – and we note that that case has been referred to by this Court in Markby and Barlow at 908, but not in the context of considering the situation that is presently before the Court, but rather in the situation of whether there can be differential verdicts at all of manslaughter and murder for two co‑accused.

We say this case presents the next step for consideration, namely this matter of large principle that I have put.  I am afraid my red light has just come on.  If it please the Court.

GUMMOW J:   Now, just look at your notice of appeal for a minute if you would, 897.

MR PEEK:   Yes, your Honour, 897 is the draft notice.

GUMMOW J:   It is really ground 1, is it not?

MR PEEK:   It is.

GUMMOW J:   Not 2 and 3.  I know you do not abandon 2 and 3.

MR PEEK:   I do not.  I mean, obviously I do not want to be sounding like ‑ ‑ ‑

GUMMOW J:   What we have been debating is ground 1, is it not?

MR PEEK:   It has.  I simply tender, as it were, the written submissions which go on to consider the second of the two special leave points.  If the Court feels that manslaughter is the only special leave point, well so be it, obviously.  I do not want to sound like Oliver Twist, but we would not abandon those other matters.

GUMMOW J:   No, thank you.  We would like to hear you first, at least, on Gillard, Mr Millsteed.

MR MILLSTEED:   Sorry, on Gillard’s demeanour, your Honour?

GUMMOW J:   Yes, then we will consider the course we take.

MR MILLSTEED:   If the Court pleases, in the respondent’s submission, the Court of Criminal Appeal correctly concluded that the evidence of Gillard’s demeanour at the police station, if shorn of its associated conversations ‑ ‑ ‑

GUMMOW J:   No, we want to hear you on Gillard, not Preston.

MR MILLSTEED:   I am sorry, your Honour, I thought you said Gillard’s demeanour.

GUMMOW J:   We want to hear about manslaughter.

MR MILLSTEED:   Yes.  If the Court pleases, as I did at trial in opposition from defence counsel, I put to the learned trial judge that there was a basis upon which manslaughter could be left in the case.

KIRBY J:   We are told that the defence counsel was dismissed or did not see the trial through and that a solicitor had to do the best he could in the circumstances.  We are told that this is a man with various mental problems.  It is asking a lot that he should know that he should refine this area of the law, which I am not at all sure that I have clearly in my own mind.

MR MILLSTEED:   If the Court please, if I could deal with both those points.  First of all, it is true that at an early stage in the trial, Mr Gillard terminated the services of Queen’s Counsel.  However, within a few weeks of the trial starting, he secured the services of Mr Richards.  At no stage during the trial was he unrepresented and the trial lasted for approximately four and a half months, so the termination of the services of counsel ‑ ‑ ‑

GUMMOW J:   How long did it last?

MR MILLSTEED:   Four and a half months.  So the termination of the services of counsel occurred within a few weeks of the trial starting.  There was an adjournment ‑ ‑ ‑

GUMMOW J:   How many days?

KIRBY J:   Was this five days a week, or three days a week?

MR MILLSTEED:   No, there were adjournments during the course of the trial, and one of the reasons for an adjournment was to enable Mr Richards to get on top of the brief and receive instructions from Mr Gillard so that the defence case could be properly conducted.

KIRBY J:   But even if Mr Richards reached a view that it was in his client’s strategic interest, which one can imagine, fight this as murder or nothing and you run a real chance you will get acquitted of murder, this Court appears to have said many times that if manslaughter is an available verdict it must be put and you concede that in your written submissions.

MR MILLSTEED:   I do, your Honour, and I do not resile from that position.

KIRBY J:   And, therefore, we should be concentrating on why this was not a case for a manslaughter direction.

HAYNE J:   Did you ask the trial judge to lead manslaughter?

MR MILLSTEED:   I did, your Honour, and that was opposed by defence counsel.

KIRBY J:   That was a very proper course for you to take at the trial, and it is a terrible burden to have to consider setting this verdict aside as a potential outcome of an appeal to this Court all those months, but the principle seems clear and you saw it and you put it.

MR MILLSTEED:   Yes, and I accept the judgments of this Court which indicate that even if the defence expressly disavowed reliance on manslaughter, if there is a basis for leaving manslaughter, then the trial judge should direct the jury in relation to that alternative verdict.

KIRBY J:   Why was it not for the jury to determine whether or not Mr Gillard knew that there was a loaded gun that was cocked, whether or not that was a real chance in the enterprise even if a gun was going to be used?  Why was that not a matter for the jury to determine?  It is a factual question of getting into the mind of Mr Gillard, and that is not for judges; that is for juries.  That is why you made your submission.

MR MILLSTEED:   That is so.

KIRBY J:   Is it not a curious thing that you are here now defending the judge’s decision and Mr Richards is here with his leader defending the position you were advancing at trial?

MR MILLSTEED:   No, if your Honour pleases, I am not defending the judge’s decision.  I accept that there was a basis for leaving manslaughter to the jury and that is on the basis that ‑ ‑ ‑

KIRBY J:   That can carry a much lighter sentence, and if that was something that principle and the facts of the trial made available, that ought to have been put to the jury and then the jury – if it returned with a verdict of manslaughter, the sentence would be lighter than that which the prisoner presently carries.

MR MILLSTEED:   Well, my submission, your Honour, is that whilst manslaughter should have been left in the circumstance of this case, it cannot be said that the failure to do so ‑ ‑ ‑

HAYNE J:   That is in the face of Gilbert, is it not?  If Gilbert stands, how can you maintain that submission?

MR MILLSTEED:   If your Honour pleases, in my submission, Gilbert can be distinguished ‑ ‑ ‑

HAYNE J:   How?

MR MILLSTEED:   ‑ ‑ ‑ in that in Gilbert the majority considered that the failure to leave manslaughter, present the jury with an inappropriate murder or nothing choice and that ‑ ‑ ‑

HAYNE J:   What is different here?

MR MILLSTEED:   Here the applicant was convicted of attempted murder, the third count.  He was convicted of the murder of Knowles, the murder of Richards and the attempted murder of Mr Traeger. 

HAYNE J:   All on the foundation, assumedly, that he was party to a joint enterprise to kill, and yet, on one view of the facts, an available view of the facts, as I understand your contentions, there may have been a joint enterprise limited to the presentation of a weapon.

MR MILLSTEED:   That is so, your Honour.

HAYNE J:   Which would have led to a manslaughter verdict.

MR MILLSTEED:   But in Gilbert’s Case it was considered that the jury having been presented with a murder or nothing option may have convicted, even though they were attracted to the possibility of manslaughter.  Now, attempted murder is not an offence which has manslaughter or attempted manslaughter as an alternative.

Now, in my submission, that is an important distinguishing factor between this case and the case of Gilbert.  It could not be said that the failure to leave manslaughter in this case could have affected the jury’s decision‑making in relation to their assessment of whether the Crown had proven its case in relation to the charge of attempted murder.

The verdict of the jury in relation to the charge of attempted murder necessarily implies that the jury is satisfied beyond reasonable doubt of all of the elements of that offence in light of the way in which the issues were presented at trial.

KIRBY J:   Yes, but only without one possibility that was not before them, that it is not a trial according to law.

HAYNE J:   That is a view that commended itself to me in Gilbert, but I was rightly reminded that the rule of three applies.

MR MILLSTEED:   Well, with respect, I endorse the approach that your Honour took in Gilbert.

HAYNE J:   But in the face of Gilbert, is not the point arguable, is not the point one that then means inevitably that there may have been a miscarriage?

MR MILLSTEED:   Well, the only basis of distinction that I can put to the Court is that in this case the applicant was convicted of attempted murder and that that was a separate and distinct charge.

GUMMOW J:   I understand that.  The point really is whether you should be putting that to the Full Bench.  That is the real point.

MR MILLSTEED:   I can do no more than put to the Court that the only basis upon which the respondent can distinguish Gilbert is the fact that we do have, in this case, a conviction on a separate and distinct charge which did not have a manslaughter or attempted manslaughter as an alternative.  They are my submissions.

GUMMOW J:   Yes, thank you.  We will take a short adjournment.

AT 2.52 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.55 PM:

GUMMOW J:   In the matter of Preston, we do not need to call on you, Mr Millsteed.

           The applicant, Gerald David Preston, complained first that the Court of Criminal Appeal had not published reasons for its conclusion on an issue of public interest immunity which had arisen in the Court of Criminal Appeal.  It is true that normally reasons should be published and available to the parties, the public and any appellate court.  No universal rule can be laid down, but often an expedient can be used to provide reasons without revealing confidential or privileged evidence.  The Court of Criminal Appeal made its ruling here and the related documents available to this Court in a sealed envelope.

However, in this case, the issue is not a substantial one.  The issue is not relevant to an issue in the trial.  At most, it is relevant to the credit of the applicant’s mother, Ivy Preston, who gave evidence for the prosecution.  In the circumstances, this is not a ground for special leave.  We are not convinced that any miscarriage of justice has occurred.  No other ground of the application warrants a grant of special leave.  We would add that there was a strong prosecution case against the applicant.  Accordingly, special leave to appeal is refused to Mr Preston.

With respect to Mr Gillard, we do not need to hear you in reply, Mr Peek. 

There will be a grant of leave limited to ground 1 in the draft notice of appeal appearing at page 897 of the application book.

AT 2.58 PM THE MATTERS WERE CONCLUDED