Allen v The Queen - [1994] HCATrans 404

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bll of 1994
B e t w e e n -
TIMOTHY FRANCIS ALLEN

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J
DAWSON J

McHUGH J

Allen

30/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 10.31 AM

MR S.E. HERBERT, OC:

May it please the Court, I appear with

MR A.J. GLYNN for the applicant. (instructed by the Legal Aid Office (Queensland))

MR B.J. BUTLER: If it please the Court, I appear with my

learned friend, MR J.R. HUNTER, for the respondent.
(instructed by D. Field, Solicitor to the Director
of Prosecutions (Queensland))

BRENNAN J: Yes, Mr Herbert.

MR HERBERT:

Your Honours, it is perhaps correct to say that in any case of dismissal on appeal by a Court of

Appeal by way of application of a proviso, that the

true question for this Court is whether the proviso

has been correctly applied.

But that is only the

ultimate question, and in determination of the

correct answer to that question, here, it is
contended that a substantial question of law arises

and needs to be resolved.

We accept that we must meet the tests referred to in Glennon's case and it must be possible for us

to say that there was an irregularity of such a

kind that it went to the root of the proceedings
such that the accused did not have a proper trial.

Here, there was no issue as to the presence of

the accused at the time of the killing. There was
no issue as to the presence of the accused
immediately before. There was no issue as to the

applicant's presence immediately after, nor that

the applicant, plainly, assisted the man that he
said committed the murder, Bradford, after the

killing.

DAWSON J:

And took a division of the proceeds.

MR HERBERT:

And took a division of the proceeds. We made

those things clear. With that evidence against
him, it is our respectful submission that a
conviction for murder was almost inevitable unless
the jury could either accept his evidence or be
left in some reasonable doubt that it might
possibly be true. Accordingly, any direction which
went to damage the way in which the jury came to
consider his evidence, any direction which allowed
the jury to consider the applicant's evidence in a
way which was not correct or inappropriate, we
therefore submit goes to, in this particular case,
the root of the trial and leads to the conclusion
that there was no proper trial.
For the proposition, that is that the judge's

directions caused or could have caused the jury to

Allen

30/6/94

wrongly approach his evidence, we must refer

Your Honours to the summing up. Now, the summing
up is discursive and contains a number of different
directions on the topic.
Might we begin at page 139 of…

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 Allen v The Queen

Details

AGLC: Allen v The Queen [1994] HCATrans 404
Case: [1994] HCATrans 404
Decision Date

CaseChat Overview and Summary

Timothy Francis Allen applied for special leave to appeal to the High Court of Australia against a decision of a Court of Appeal that had dismissed his appeal by applying a proviso. The respondent was the Crown. The dispute concerned the applicant's conviction for murder.

The primary legal issue before the High Court was whether the Court of Appeal had correctly applied the proviso in dismissing Allen's appeal. This, in turn, required the High Court to determine if there had been an irregularity in the trial of such a nature that it went to the root of the proceedings, meaning the applicant did not receive a proper trial. A further question arose as to whether the trial judge's directions to the jury regarding the applicant's evidence were legally sound.

The applicant contended that the trial judge's summing up contained directions that improperly damaged the way the jury considered his evidence. Specifically, the judge's direction that "you always look at the interest that a witness may have in the outcome of proceedings when you are weighing up the reliability of" the evidence was argued to be in breach of the principle established in *Robinson*. The applicant submitted that this direction, by stating "you always" and then directing the jury that the applicant "did" have an interest, effectively told the jury that the applicant's self-serving evidence should be discounted due to his inherent interest in avoiding conviction, thereby preventing a proper consideration of his defence. The applicant argued that given the evidence against him, a conviction for murder was almost inevitable unless the jury could accept his evidence or entertain reasonable doubt, and any direction that led the jury to wrongly approach his evidence went to the root of the trial.

Orders