Aiton v The Queen - [1994] HCATrans 374

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml32 of 1993
B e t w e e n -
PAUL LESLIE AITON

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J GAUDRON J

Aiton

10/6/94

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 11.33 AM

applicant. (instructed by Oakley Thompson & Co)

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

MS K.E. JUDD for the respondent. (instructed by
the Director of Public Prosecutions (Victoria))

MASON CJ:	Mr Wraith.
MR WRAITH:	If I may put it succinctly, if the Court

pleases - - -

MASON CJ: That is what we were hoping you would do,

Mr Wraith.

MR WRAITH:

This is a case of a miscarriage because the

facts of this case were not appropriate for the
leaving to the jury of reckless murder and the
Court of Criminal Appeal erred in not so finding.
I remind the Court that this Court in Pemble's case - or Sir Garfield Barwick in Pemble's case -
made it clear, and no other decision of this Court
has derogated from it, that it should only be left
in exceptional or unusual circumstances. It is my
submission that these were not exceptional and
unusual circumstances. They were emotive
circumstances, to be sure, and the learned trial
judge should have guarded against that in the
circumstances by not leaving this concept in this
particular case.

DAWSON J: Does the court use those words, "exceptional

circumstances"?

MR WRAITH: Unusual. Sir Garfield Barwick used the word

"unusual".

GAUDRON J: But they are words that are descriptive of the

case rather than a statement of the principle. If

the issue arises, it has to be left. It will be an
unusual case in which it arises, but if it arises,
so be it. Is that not how it works?

MR WRAITH: That is right.

GAUDRON J: And did the issue arise?

MR WRAITH: It is submitted no.

GAUDRON J: Notwithstanding that you denied specific intent.

MR WRAITH: He denied specific intent. The evidence was all one way that when one looked at the last incident -

and I appreciate that the Court ·has read the
material - there are a number of incidents which

Aiton

10/6/94

could have been said to have been abusive in the
past, either on his own admissions to workmen or on
other evidence, but when one came to look at the
final incident it was quite distinct and separate

and discrete. It was a situation where it was not
a case where one would have expected an intentional
murder to occur and, in fact, his explanation
finally given, on two occasions, two separate
occasions, to the police and to some social
workers, were that he lost control in circumstances
where there had been certain incidents…

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 Aiton v The Queen

Details

AGLC: Aiton v The Queen [1994] HCATrans 374
Case: [1994] HCATrans 374
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr D.G. Wraith, sought leave to appeal against a decision of the Court of Criminal Appeal. The dispute concerned the trial judge's decision to leave the charge of reckless murder to the jury, which the applicant argued constituted a miscarriage of justice.

The central legal issue before the High Court was whether the trial judge erred in leaving the charge of reckless murder to the jury. The applicant contended that such a charge should only be left in exceptional or unusual circumstances, and that the facts of this case did not meet that threshold. The applicant argued that the circumstances were emotive rather than exceptional, and that the evidence pointed towards the applicant losing control rather than intending to cause death or grievous bodily harm.

The applicant's submission was that the evidence, particularly concerning the final incident, was distinct and separate from any prior abusive incidents. The applicant's explanation to police and social workers was that he lost control following a series of events on the morning of the incident, including an argument with a workman. The applicant argued that this evidence strongly suggested a loss of control, making the inclusion of reckless murder inappropriate. The Court considered whether the issue of recklessness arose, particularly in light of the applicant's denial of specific intent and the nature of the injuries inflicted.

Orders