Agnew v The Queen - [2004] HCATrans 454

[2004] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P72 of 2003

B e t w e e n -
WAYNE ROBERT AGNEW
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 11.58 AM

MR W.R. AGNEW appeared in person.

MR R.E. COCK, QC: If the Court pleases, I appear for the Crown. (instructed by Director of Public Prosecutions (Western Australia))

McHUGH J: Yes, Mr Agnew, we have read your submissions. Now, as you are aware the Court may ask you some questions, but there may be some matters in your submissions that you wish to emphasise and if so you can go ahead. You have 20 minutes.

MR AGNEW: Is it all right if I have these handcuffs removed, your Honour, so I can go through my paperwork?

McHUGH J: It is a matter for security, but as far as we are concerned, there is no reason ‑ ‑ ‑

KIRBY J: I think you should have, if you can, have those removed so that you can have access to your papers.

McHUGH J: Yes.

MR AGNEW: The Crown alleged at trial that I was guilty of wilful murder, and this was the Crown’s case at trial. My defence was obvious, one of accident if you have read my submissions. At the end of the day, the jury found me guilty of murder. This was never argued as a real possibility at trial, though it was an alternate verdict that was hardly logical or practical when one considers all the evidence in relation to the calibre of the firearm and evidence of ballistics and medical experts led by the prosecution. I am relying on Justice Wheeler’s judgment in the Court of Criminal Appeal and that can be located at page 178 of the application book at line 45.

KIRBY J: We have read Justice Wheeler’s dissenting opinion.

MR AGNEW: All right, thank you, your Honour. I suppose my first complaint is based around – of course, accident enabled section 23 of the Criminal Code. That is subject to 266 of the Criminal Code. Section 23 is made up of two limbs, your Honour, as you know. A person is not criminally responsible for an act or omission which occurs independent of the exercise of his will. I suppose my main complaint with the Court of Criminal Appeal is that when dealing with this section of the Code, that section there was read twice to the jury, and that was their only assistance in having to deal with what was a willed act. Now I am sure, when I say “willed act” in court that yourselves and everybody else knows that it is the conscious voluntary act where you actually will something to happen.

KIRBY J: I realise that, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agnew v The Queen

Details

AGLC: Agnew v The Queen [2004] HCATrans 454
Case: [2004] HCATrans 454
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Agnew, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court granted special leave to appeal from the decision of the Court of Criminal Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that the applicant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The High Court, in a joint judgment delivered by McHugh, Kirby and Heydon JJ, held that the trial judge's directions on provocation were insufficient. Their Honours reasoned that the jury must be given the opportunity to consider whether the provocation, if accepted, was sufficient to cause an ordinary person to lose self-control and act as the applicant did. The court emphasised that the test for provocation involves both an objective element (whether an ordinary person would have lost self-control) and a subjective element (whether this particular applicant did lose self-control). The failure to adequately direct the jury on these elements meant that the conviction could not stand.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial on the charge of murder.

Orders