The High Court has handed down two judgments this
morning. In each case, Gageler J was the
sole dissentient.
The first case was James v The Queen. Kahdr Sleiman suffered multiple injuries as a
result of being struck by a motor vehicle being driven by James. The prosecution case alleged that James
deliberately struck Sleiman with the vehicle, intending to cause him serious
injury. The defence case was that
Sleiman was struck accidentally while James manoeuvred his vehicle in reverse
in order to get away from Sleiman, who was menacing him with a knife. James was charged with the offence of
intentionally causing serious injury to Sleiman. He was also charged, in the alternative, with
recklessly causing serious injury to Mr Sleiman. It was necessary for the Crown to prove
either that James intended to cause serious injury, or foresaw the probability
that his act would cause serious injury.
It was not sufficient for the Crown to prove that James intended merely
to cause some (not serious) injury, or foresaw the probability of causing some
(not serious) injury. After the jury had
retired, it sought clarification of the distinction between the two offences
charged. In the course of that
discussion, the prosecutor raised the question of whether the jury should be
instructed of the availability of a further alternative verdict, namely that
James intentionally caused Sleiman injury, as opposed to serious injury. The trial judge refused to direct the jury in
those terms, indicating that to leave the further alternative verdict at that
stage of the trial would deprive James of the possibility of acquittal of the
more serious charge. The jury returned a verdict of guilty on the charge of
intentionally causing serious injury to Sleiman.
In dismissing an appeal by James,
the majority of the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and
Keane JJ) held that the trial judge was correct to not leave the alternative
verdict for the lesser offence to the jury.
The majority held that that the trial judge’s duty with respect to
instructing a jury on alternative verdicts is properly understood as an aspect
of the duty to secure the fair trial of an accused. Whether the failure to leave an alternative
verdict has occasioned a miscarriage of justice is answered by the appellate
court’s assessment of what justice to the accused required in the circumstances
of the particular trial. That assessment
required the court to take into account the real issues at the trial, and the
forensic choices of counsel. The court noted that not infrequently defence
counsel will decide not to sully the defence case (that the only proper verdict
is one of outright acquittal) by inviting the jury to consider the accused’s
guilt of a lesser offence. While the
choices of defence counsel are not determinative, they may nonetheless be
relevant to consideration of whether justice requires that an alternative
verdict be left. In the present case,
the distinction between an intention to cause “serious injury” and “injury” had
a degree of subtlety that was rightly characterised as artificial. In addition, an instruction to the jury on
the alternative verdict might have jeopardised James’ chances of outright
acquittal, because the central issue at trial (whether the Crown had excluded
the reasonable possibility that James struck Sleiman inadvertently) may have
become blurred in a summing-up which introduced additional, uncharged, pathways
to conviction.
Gageler J, in dissent, was careful
to distinguish two questions: first, had the trial judge erred in failing to
leave the alternative verdicts and second, had this failure resulted in a
substantial miscarriage of justice. In
answering the first question, Gageler J held that the true principle to be
applied was that it was the duty of a trial judge to give such direction to the
jury as was necessary to enable them to understand the law as it related to the
facts before them. What is necessary for
the jury to know is not determined exclusively by reference to the issues
presented by trial counsel, but by reference to the evidence received at trial,
and the legal principles which that evidence enlivens. Where there is evidence
available to the jury by which the jury could be satisfied of the elements of
an included offence, even though not satisfied of all of the elements of the
offence charged, then the trial judge is required to instruct the jury in
relation to such available alternative verdicts. That instruction having not been given in
this case, the trial judge had made an error of law. The question then became whether that error
had occasioned a substantial miscarriage of justice. In the present case, it was reasonable to
consider that the jury may have been less inclined to be satisfied that James
intended to cause serious injury if presented with an available alternative (ie
an intention to cause some (not serious) injury) and the conviction of the
offence of intentionally causing serious injury could not be considered to be
inevitable.
The second case is Electricity Generation Company v Woodside Energy Ltd. This
case involved the construction of a gas supply agreement (GSA) entered into
between Verve and various gas suppliers in Western Australia (the Sellers). Under clause 3.2
of the GSA the Sellers were obliged to make available for delivery to Verve a
maximum daily quantity of gas (MDQ).
Under clause 3.3 of the GSA, the Sellers were additionally required to
“use reasonable endeavours” to make additional gas available for delivery in
excess of MDQ, up to an additional daily quantity specified as the supplemental
maximum daily quantity (SMDQ). In
determining whether they were “able to supply SMDQ” on any particular day, the
Sellers were entitled to take into account “all relevant commercial, economic
and operational matters”. During the
currency of the GSA there was an explosion at a gas plant which had the effect
of temporarily reducing the supply of natural gas to the Western Australian
market by 30 to 35 per cent. This
resulted in a significant increase in the prevailing market price for gas. The Sellers advised Verve that they would not
receive the nominated SMDQ during the period of the interruption, but invited
them to enter a tender process for the supply of additional gas. Under protest, Verve entered into short term
gas supply agreements with the Sellers, at prevailing market prices that were
in excess of the price they would have been required to pay for SMDQ under the
GSA. In essence, the question for
determination by the High Court was whether the Sellers were entitled to take
into account the interruption to the supply of gas in the Western Australian
market, and the consequent effect on market conditions, in determining whether
or not they were “able” to supply SMDQ as nominated by Verve.
The majority (French CJ, Hayne,
Crennan and Kiefel JJ) held that the Sellers’ relevant ability to supply was
qualified by reference to the constraints imposed by the commercial and
economic considerations bearing upon the Sellers’ business. The effect of clause 3.3. was that the
Sellers were not required to forgo or sacrifice their business interests when
using reasonable endeavours to make SMDQ available for delivery. The word “able” mean the ability of the
Sellers, having regards to their capacity and their business interests, to
supply SMDQ. Accordingly, the Sellers were entitled to act as they had.
Gageler J (again, the sole
dissentient) held that this construction rendered the obligation to use “best
endeavours” elusive, if not illusory. The
effect of that construction was that the price fixed by the GSA for the supply
of gas operated as a floor price at which the Sellers might choose to supply
gas to Verve up to SMDQ only if and when the Sellers considered selling at the
price to be in their commercial interests.
There is then no apparent reason to include clause 3.3 at all. Instead,
Gageler J held that better construction was that the reference to “able” is a
reference to the objective ability and capacity to make gas available to
Verve. This was consistent with the use
of “reasonable endeavours” which was acknowledged to be a reference to
objectively reasonable endeavours. The relevant “commercial” and “economic”
matters which the Sellers were entitled to take into account included such
matters as bore upon the objective ability or capacity of the Sellers to make
gas available for delivery at the price fixed by the GSA. The Sellers were not, therefore, obliged to
make gas available for delivery at a loss.
However, the relevant “commercial” and “economic” matters did not
include the opportunity cost to the Sellers of making gas available under the
GSA to Verve rather than having that same gas available to sell more profitably
to others. That opportunity cost would not render them objectively “unable” to
make the gas available, just reluctant or unwilling to do so.
