Galgey & Anor v Director of Public Prosecutions

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Heilpern LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13382/03 Sean Galgey & Anor v Director of Public Prosecutions

JUDGMENT 1 HER HONOUR: Pursuant to s53(3) of the Crimes (Local Courts Appeal and Review) Act 2001, each plaintiff seeks leave to appeal against an order of a magistrate of the Local Court, on 31 October 2003, committing him for trial on a charge of murder. 2 By s53(3) such an appeal lies to this Court, but only on a ground that involves a question of law alone, and only by the leave of this Court.

facts 3 The facts relevant for present purposes are undisputed. The following account is drawn from an affidavit affirmed by the solicitor acting for both plaintiffs, and counsel's written submissions. 4 On 12 March 2003 David Graham Hudson died in the Canberra Hospital in the Australian Capital Territory, where he was taken by ambulance following an altercation at the (NSW) home of the plaintiff Galgey.

(It will hereafter at times be convenient to refer to the plaintiffs by their surnames.) 5 Both plaintiffs were charged with Hudson's murder. Committal proceedings pursuant to the Justices Act 1902 took place in the Local Court at Batemans Bay on 30 and 31 October 2003. A number of witness statements were put before the magistrate and a number of the deponents gave oral evidence and were cross-examined. I assume that neither plaintiff gave evidence. 6 Their intended defences were put before the magistrate in the form of statements made by them to police following their arrest, and in the statements and evidence of prosecution witnesses. Each plaintiff proposes to rely upon the "defence" of self-defence, now enacted in s418 of the Crimes Act 1900. S418 provides: " 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 7 By s419 of the Crimes Act, where, in criminal proceedings, an issue under s418 is raised, the onus lies upon the prosecution to negative self-defence, and to do so beyond reasonable doubt. (I refer to self-defence as a "defence", although, as s419 makes clear, it is not strictly a defence so called.)

the issues raised by the summons 8 It is not necessary (nor possible, nor appropriate) here to consider the factual matters on which the defence is to be raised. The magistrate heard and read the evidence. At the conclusion of the evidence, and having heard submissions from counsel, he proceeded with the task then required of him by s41 of the (now repealed) Justices Act 1902 (now see Criminal Procedure Act 1986). S41 relevantly provided that, on a committal hearing: "(2) When all evidence for the prosecution case has been taken, the justice … shall, after considering all the evidence … : (a) if not of the opinion referred to in paragraph (b) - forthwith order the defendant to be discharged as to the information then under inquiry, or (b) if of the opinion that, having regard to all the evidence … the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence: (i) if the defendant is present - proceed as provided sub-sections (4), (5) and (6), or (ii) … … [(4) and (5) These subsections require the Magistrate to give the defendant an opportunity to make a statement and/or give evidence or call evidence in response to the charge.] (6) When all the evidence for the prosecution and any evidence for the defence have been taken, the justice … shall, after considering all the evidence …: (a) if of the opinion that, on the basis of all the evidence …there is a reasonable prospect that a jury would convict the defendant of an indictable offence - commit the defendant for trial, or (b) if not of that opinion - forthwith order the defendant to be discharged as to the information then under inquiry. … (8) A reference in this section to a jury is a reference to a reasonable jury properly instructed." 9 No submission was made to the magistrate to the effect that the evidence was incapable of satisfying a jury beyond reasonable doubt that either plaintiff had committed an indictable offence (see s41(2)). The issue which arose concerned the application of sub-s(6). Counsel for each plaintiff argued that the magistrate ought not be of the opinion that there was a reasonable prospect that a jury would convict that plaintiff of an indictable offence. Those submissions required the magistrate to consider, on the basis of all the evidence, whether such a reasonable prospect did exist. 10 The magistrate reviewed the evidence. He made reference to evidence concerning the cause of Hudson's death, and to some of the evidence of the events on the night of his death, on which the claim of self-defence was based. He plainly was aware (correctly) that, in the light of the conduct of the committal proceedings, the sub-s(6) task required him to consider the prospective merits of the defence and whether there was a reasonable prospect that a reasonable jury, properly instructed, would convict either plaintiff of murder. The central issue was the forecast of the outcome of that defence. Of this, the magistrate said: "In my view, it is an extraordinarily strong case of self-defence." 11 The transcript records that, a little later, he said: "I have found as a question of fact that the evidence of self-defence is very strong and I accept that evidence … So, is there a reasonable prospect that a jury would convict? In my view, that depends very much on the definition of that particular use of the word reasonable, as opposed to the use of reasonable in s41.8 (sic). If it meant is there a prospect, is the prospect either remote or is the prospect strong, then I believe that my findings thus far would indicate that I view the jury coming to that conclusion i.e. that the prosecution have negatived self-defence, would not be strong. But, in my view, the word reasonable in that does not require me or indeed, invite me, to form a conclusion about whether the prosecution case is strong or weak. What it requires me to do is to ask myself is it reasonable in the sense of is it outside the bounds of reason. If, as I indicated, if I am wrong in that and the test is whether the prosecution case is a strong one in the sense that the jury would be likely to convict or that that likelihood is remote, then I am wrong on that. But on the basis of it being reasonable and that section being outside the bounds of reason, then I believe that [counsel for the prosecution's] submissions are compelling in terms of those elements that he drew attention to in the submission. THUS, I AM OF THE VIEW THAT THERE IS A REASONABLE PROSPECT THAT A JURY WOULD CONVICT OF THE CHARGE WITH WHICH THE DEFENDANTS ARE FACED AND I WILL FORMALLY COMMIT THEM FOR TRIAL." (upper case in original) 12 Counsel for the plaintiffs also sought to have admitted in evidence the transcript of some further remarks made by the magistrate following committal, when he dealt with an application made by Floritt for bail. Counsel for the present defendant (the DPP) objected to the admission of this material. 13 I was not, at the time, in a position to rule upon the objection and deferred doing so. What the magistrate said on the bail application is recorded as including the following: "… If I were to continue to refuse bail to the defendant, there is a significant risk that the defendant would spend time in custody on a charge that eventually may result in an acquittal given my finding of fact in the committal hearing that there is a strong case of self-defence. … and the indication that I have given as to my view that there is not a strong prosecution case with respect to self-defence, leads me to a conclusion that there is a significant risk that the defendant would spend time in custody for a matter which may eventually be acquitted." 14 I do not propose to take account of this evidence. Firstly, it adds nothing to what the magistrate said in his judgment on the s41(6) issues; indeed, while it, to some extent, repeats what he there said, it is expressed in less forceful language. More importantly, what the magistrate said in a subsequent bail application cannot throw any light on the way he approached his task in relation to s41(6).

the proper construction of s41(6) 15 S41(6) was amended in 1996, with effect from 24 February 1997. Prior to the amendment it provided: "When all the evidence for the prosecution and any evidence for the defence has been taken, the Justice … shall, after considering all the evidence … (a) if of the opinion that, having regard to all the evidence … a jury would not be likely to convict the defendant of an indictable offence - forthwith order the defendant to be discharged as to the information then under inquiry; or (b) if not of that opinion - commit the defendant for trial." 16 Introducing the Justices Amendment (Committals) Bill in the Legislative Assembly, the Minister for Police, Mr Whelan, identified two purposes of the amendment of s41(6). The first was to eradicate the clumsy and confusing double negative which was then implicit in sub-paragraph (b) arising where a magistrate was not of the opinion that a jury would not be likely to convict. The second was to substitute the expression "reasonable prospect" for the word "likely" which was considered to create too high a threshold: NSW Parliamentary Debates, Legislative Assembly, 1 May 1996, p. 367. 17 The first matter, it seems to me, does not effect a change of substance, but does simplify the task a magistrate is required to undertake. The second is a change of substance. I will consider its effect below. 18 S.41(6), in its pre-1996 form, has been considered by the Court of Appeal on at least two occasions: Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182; Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397. In the latter case both Gleeson CJ and Samuels JA expressed views about the nature of the task undertaken by a magistrate exercising jurisdiction under s41(6). The views expressed are not affected by the 1996 amendment. Gleeson CJ observed that the sub-section called for an attempt at prediction, and that in forming the relevant opinion, magistrates may be obliged to bring to the task their own assessment of witnesses as a basis for the performance of that exercise. Samuels JA wrote: "The magistrate is in terms required to make a forecast of the assessment which an hypothetical jury, reasonable and properly instructed (see s41(8)) would make of the credibility and acceptability of the oral and documentary evidence … The law permits a jury an extremely wide range of factual options before it is taken to have overstepped the bounds of reason; and its choice may be influenced by prejudice which in the ordinary course will not be revealed. … … I find it difficult to see how a magistrate can sensibly do other than make his own examination of evidence, arrive at his own conclusions, express them in the form required by s41(6)(a) and attribute to the hypothetical jury, rather than to himself, the negative response for which the paragraph provides. I cannot imagine any other plausible way of proceeding. I cannot contemplate that a magistrate might conclude that there was no real chance or prospect … that he would convict but be unable nevertheless to form the opinion that an hypothetical jury would make the same response (in effect) to the same evidence examined according to the same principles of law." 19 Priestley JA adopted certain propositions stated in Carlin by O'Brien CJ of CrD, those relevant for present purposes being stated as follows: "1. When the stage of the committal proceedings spoken of in s41(6) is reached 'the magistrate is … to make some kind of forecast of the outcome of a trial of the defendant'. 2. In making the forecast: '… the magistrate must give attention to the weight and acceptability of the evidence in relation to the character of the evidence itself and the credibility of the witnesses who gave it. But he is to do so from the point of view of a reasonable jury … presented with the evidence, and neither more nor less than the evidence, he has heard' … 3. … 4. The test to be used by the magistrate in applying s41(6) is, as stated summarily … that 'the forecast required by s41(6)' is 'based on the test of whether there was a real prospect of conviction by a jury', or, as earlier more fully stated …: 'In determining then whether a defendant should be committed for trial the function intended by s41(6) as best serving the interests or competing interests of all concerned is, in my opinion, that the defendant should be discharged when an opinion can affirmatively be reached that there is no real chance or prospect of conviction but that in the absence of such an opinion the defendant should be committed.'" 20 Gleeson CJ agreed expressly with the adoption by Priestley JA of these propositions. 21 The first matter I have to consider is whether the magistrate clearly understood the nature of the task. At the outset of his reasons he set out sub-s(6) in full. He also cited the first paragraph of the headnote to Saffron in the NSWLR report (cited above) which is, in effect, an amalgam of the relevant passages from the three individual judgments. It has not been suggested that, in doing this, he misdirected himself. 22 The task posed for the magistrate in this case was a rather unusual one. It involved the assessment of whether or not there was a reasonable prospect that a jury would reject the defence of self-defence - in other words, whether there was a reasonable prospect that a jury in possession of the evidence of self-defence, would consider that the prosecution had, beyond reasonable doubt, eliminated self-defence. It appears that the only issue of significance that arose under s41(6) was whether the prosecution evidence was such as to eliminate any reasonable prospect that the plaintiffs had acted in self-defence. 23 Although the magistrate stated, on more than one occasion, that it appeared to him (performing the assessment of witnesses and forecasting exercise referred to in Saffron) that the defence of self-defence appeared to be very, or even extraordinarily, strong, it does not necessarily follow from that that he was not, or could not have been, of the opinion that there was a reasonable prospect that the jury would convict either plaintiff of an indictable offence. 24 His real task was to assess the prospects of the prosecution eliminating the s418 defence. If the prosecution prospects of doing so were reasonable, then there was a reasonable prospect that either or both plaintiffs would be convicted of an indictable offence. 25 The reasons given by the magistrate are not entirely easy to understand. This, no doubt, is because they were delivered ex tempore, in the course of what may be taken to be a busy list in a Local Court. 26 Successfully negativing self-defence would involve the prosecution proving, in relation to either plaintiff, beyond reasonable doubt, either:

(i) that he did not believe that his conduct was necessary to achieve any of the five purposes specified in s418(2)(a)-(d); or (even if the prosecution did not succeed in that)

(ii) that his conduct was not a reasonable response in the circumstances as he perceived them (at the time of the conduct). 27 If the magistrate were of the opinion that, in relation to either plaintiff, there was a reasonable prospect that the prosecution would prove either (i) or (ii) (or both) then, axiomatically, he must have been of the opinion that there was a reasonable prospect that a reasonable jury, properly instructed, would convict that plaintiff of an indictable offence. He would then be obliged to commit that plaintiff for trial.

plaintiffs' submissions 28 On behalf of the plaintiffs it was submitted that the magistrate was in error in his approach to the task in a number of respects. These, as I discern them from the written submissions, were:

(i) that the magistrate failed adequately and properly to consider the effect of s418;

(ii) that the magistrate, in using the words "outside the bounds of reason" posed an excessively stringent test;

(iii) that the magistrate erred in differentiating the word "reasonable" as it appears in s41(6), and in s418;

(iv) that, having found that the case for self-defence was a strong one, the magistrate failed to ask himself the appropriate question, that is: had the prosecution failed to negative self-defence; if he considered that the prosecution had failed to do so in relation to either plaintiff, his only option was to discharge that plaintiff;

(v) that, having come to the subjective view that the case for self-defence was strong, the magistrate put that to one side and attributed a contrary conclusion to a hypothetical or putative jury; such an approach contravened that laid down in Saffron .

(i) the magistrate's approach to s418 29 Little by way of elaboration was put in support of the submission that the magistrate failed adequately and properly to consider the effect of s418. It is true that the magistrate did not extract the section in its terms, as he did s41(6). However, he is recorded as saying this: "The key argument in this case is one of self-defence and the test that I am asked to apply is made more complex by the statutory formulation in s4.18 (sic) because there is effectively, a range of firstly, subjective and followed by both a subjective and objective test and it's complicated further by the fact that this is something the prosecution must negative once it's raised." 30 He also alluded to the absence of any statutory guidance given to a Local Court in considering the s41(6) exercise in the context of an element of an offence which the onus lies upon the Crown to disprove. He also made quite extensive reference to the evidence going to self-defence and made a particular allusion to Floritt's state of mind; and expressed himself to be satisfied that "there was a large justified fear in the minds of all those who were present" given the behaviour of Hudson during the preceding twenty-four hours. I see no reason to conclude that the magistrate did fail, as contended, properly to consider the effect of s418. I reject this contention.

(ii) "outside the bounds of reason" 31 The magistrate twice used this expression, the second occasion in close proximity to the first. On each occasion he was referring to the word "reasonable" as it appeared in s41(6). On the first occasion he rejected a proposition that the section required him or invited him to come to a conclusion about the strength or weakness of the prosecution case and said: "What it [s41(6)] requires me to do is to ask myself is it reasonable in the sense of, is it outside the bounds of reason."

He was, in a sense, defining or explaining for himself the word "reasonable". On the second occasion he used the phrase it was in the context of having noted the possibility that he was wrong in rejecting the strength or weakness of the Crown case as the test for the s41(6) exercise, and, effectively, repeating what he had previously said. 32 The phrase appears to have been drawn from the judgment of Samuels JA in Saffron, although it was there used in a different context. Samuels JA had written: "The law permits a jury an extremely wide range of factual options before it is taken to have overstepped the bounds of reason …" 33 Counsel for the plaintiffs submitted that equating "reasonable" with "outside the bounds of reason" was an error of law, and set the bar far too high, and unnecessarily constrained and restricted the magistrate's jurisdiction. I would accept that it is ordinarily unnecessary to attempt to define or put a gloss upon a term as well entrenched in legal language as is the word "reasonable". I would also accept that Samuels JA, in the passage extracted, was not purporting so to define "reasonable", which, it is to be observed, did not appear in the version of s41(6) which he was considering. But the question is whether in expressing himself as he did, the magistrate exposed an erroneous approach to the task entrusted to him under s41(6). Counsel for the defendant drew my attention to the definition of "reasonable" which appears in the ninth edition of the Concise Oxford Dictionary, and includes as meanings numbered 2 and 3(a): "in accordance with reason, not absurd"

and "within the limits of reason". 34 Given the manner in which the magistrate's reasons for committal are delivered, I do not think it fair to subject those reasons to too fine a linguistic analysis; nor is it usually desirable to attempt to reformulate the language used. However, bearing those cautions in mind, it seems to me that all the magistrate was doing was posing the "reasonable prospect" test in terms of asking himself whether the prospect of conviction was "outside the bounds of reason", or whether a conviction on the evidence before him would be "outside the bounds of reason". I have come to the conclusion that the test as formulated by the magistrate does not denote error. Certainly, I do not think that paraphrasing "reasonable" in terms of "the bounds of reason" is such a departure from the time honoured word as to create a different test, one which is more difficult for a charged person and easier for the prosecution to meet. I reject this challenge to the magistrate's reasons.

(iii) "reasonable" in s41(6) and s418 35 In my opinion the complaint made on behalf of the plaintiffs subjects oral ex tempore reasons to far too fine a scrutiny. It is true that the magistrate referred to the word "reasonable" as it appeared in s41(6) and appeared, in saying "as opposed to the use of reasonable in s41.8 (sic)" to distinguish or differentiate between the meaning of the words in the two sections. However, in my opinion, a more reasonable interpretation of what he said in the extracted passage was that it was designed merely to identify the section to which he was referring. In my opinion there is nothing in this complaint.

(iv) the proper question 36 The submission made on behalf of the plaintiffs in this respect depended upon the anterior finding that the case of self-defence was strong. This, it was contended, was no different from the assessment to be made under s41(6). In part, that may be correct. But it is incorrect to suggest that because a defence is held to be strong, then it necessarily follows that there could not be a reasonable prospect of conviction. A case which is strong may nevertheless fail and a weak case may nevertheless succeed. Strength and weakness are not absolutes but are opposite ends of a continuum. To find that a case is strong does not require a finding that there is no reasonable prospect that it will fail. For the plaintiffs' submissions to be accepted in this respect, it would be necessary also to accept that the finding that the case for self-defence was strong (even extraordinarily strong) necessarily also entailed also the conclusion that there was no reasonable prospect of conviction. I do not accept that proposition. The magistrate's view as to the strength of the defence did not of itself (or in combination with other circumstances) demand the opinion that there was no reasonable prospect of conviction.

(v) application of Saffron 37 The complaint here made is explained in the following way: "[The magistrate's] finding that the case of self-defence was a strong one was no different than the assessment that had to be made as to whether there was a reasonable prospect a reasonable jury properly instructed would convict." 38 I reject this proposition. It is true that the assessment of the strength of the case in favour of the plaintiffs in self-defence involves many of the same considerations as are involved in the formation of an opinion as to whether there is or is not a reasonable prospect that a reasonable jury properly instructed would convict. But an affirmative answer to the first question - that is, as to the strength of the case of self-defence - does not, as I have explained above, dictate a conclusion (or, more accurately, an opinion) that there was not a reasonable prospect that a reasonable jury properly instructed would convict. It is also true, as was then argued, that where a magistrate is of the view that the Crown has failed to negative self-defence then the only alternative open is to discharge the defendant. So to state the opinion is to gloss over what s41(6) requires in circumstances where disproof, or proof of a negative, by the Crown is the issue. In these circumstances, it is only where a magistrate is of the opinion that the evidence of self-defence is such that no reasonable jury could reject it that the magistrate is obliged to discharge the defendant. The findings of the magistrate in this case do not demand such a conclusion. 39 That disposes of the matters raised on behalf of the plaintiffs in the submissions. I should, however, note one final proposition put on their behalf. That was put in these terms: "If the Magistrate is of the opinion that if there is a reasonable prospect the prosecution has failed to discharge the onus placed on it, he or she is obliged to say that a properly instructed jury would not convict and discharge the defendants before him." 40 This proposition is incorrect. It is an inversion of the correct proposition. It is only where the magistrate is not of the opinion that there is a reasonable prospect that a jury would convict that the magistrate is obliged to discharge the defendant. That is a quite different proposition: see the discussion by Gleeson CJ in Saffron at p. 400 G - 401 B. I have concluded that no error has been demonstrated in the magistrate's approach to the task he undertook. While matters suitable for a grant of leave have been raised, and leave to appeal should therefore be granted, the appeal must be dismissed. 41 The orders I make are:

(i) leave granted to each plaintiff to appeal against the decision of the magistrate of 31 October 2003, to commit him for trial on a charge of murder;

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