Baker v The Queen - [2012] HCATrans 47

[2012] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M154 of 2011

B e t w e e n -
KHALID BAKER
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 FEBRUARY 2012, AT 10.15 AM

MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellant. (instructed by Doogue & O’Brien)

MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Croucher.

MR CROUCHER: Your Honours, as we see it, there are at least three questions on this appeal. The first is whether an exception to the rule against hearsay of the type that was spelt out by Justice Deane in Bannon’s Case and taken up by trial counsel in this case is to be recognised. The second question, as we see it, is whether, if such a principle exists, is it engaged on the facts in this case and third, if it is, whether it can be said that there is no substantial miscarriage of justice despite that error on those hypothesises.

May I deal first with the background to the matter. As I said at the outset, counsel at trial took the point, and this commences at page 491 of the appeal book – in fact, the matter was raised by the learned judge from line 3 onwards at page 491. His Honour starts with “The other matter is Bannon v R” and then he goes through what he understands to be the position spelt out in Bannon, namely, in summary, that evidence of admissions by a co‑accused is not evidence either for or against the appellant in this case, or any other case for that matter and he then invited submissions on the matter.

Counsel for Mr LM said that he agreed and that is the way his Honour should deal with it. The prosecutor, who was perhaps non‑committal about it, ultimately agreed in that view as well, but counsel for the appellant took the point, referred his Honour, as I say, to Justice Deane’s dictum in Bannon’s Case, particularly at pages 13 through to 15 of the judgment in Bannon (1995) 185 CLR 1. Counsel took, as I say, his Honour through that reasoning and said that it applied here and he sought to distinguish the problems that were said to bedevil the case in Bannon as being a good vehicle for raising the point.

His Honour ultimately ruled and that ruling, which is brief, commences at page 507 and goes over the page and his Honour, in substance, says that whilst he was mindful of the observations of Justice Deane, that he felt…

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 Baker v The Queen

Details

AGLC: Baker v The Queen [2012] HCATrans 47
Case: [2012] HCATrans 47
Decision Date

CaseChat Overview and Summary

In *Baker v The Queen*, the High Court of Australia considered an appeal by the applicant, Mr Baker, against his conviction for murder. The dispute arose from Mr Baker's assertion that the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation.

The central legal issue before the High Court was whether the trial judge's summing up to the jury sufficiently explained the elements of provocation as a defence to murder, particularly in relation to the subjective and objective components of the defence. The court was required to determine if the jury had been properly instructed on how to assess whether the provocation was such as to cause an ordinary person to lose self-control and, if so, whether Mr Baker's actions were a response to that provocation.

The High Court held that the trial judge's directions were inadequate. The court emphasised that the defence of provocation requires the jury to consider both whether the accused was actually provoked and lost self-control, and whether the provocation was of a kind that could have caused an ordinary person to lose self-control. The judges found that the summing up had not clearly articulated this dual test, potentially leading the jury to misunderstand the law and convict Mr Baker when the defence might have been available.

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

Orders