Baker v The Queen - [2011] HCATrans 304

[2011] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2011

B e t w e e n -
KHALID BAKER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 OCTOBER 2011, AT 11.45 AM

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by Doogue & O’Brien)

MR D.A. TRAPNELL, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Croucher.

MR CROUCHER: Your Honours, in Bannon v The Queen, Justice Deane at page 15 of the judgment said this:

it appears to me to be strongly arguable that the basic requirement of fairness dictates that, in circumstances where the Crown has seen fit to bring a person (the first accused) to a joint trial with another accused and to place before the jury material which is tendered only against that other accused but which is supportive of the innocence of the first accused, the trial judge have a discretion to direct that that material, even though otherwise inadmissible in the trial of the first accused, be evidence in that trial at the instance of the first accused if, in all the circumstances of the case, the trial judge considers that fairness to the first accused and the interests of the administration of justice support the conclusion that such a direction be given.

KIEFEL J: There might be good reason to consider what his Honour said in Bannon, particularly in light of the approach apparently taken in Queensland which did not have regard to what was said in Bannon, but the question here is whether or not this particular case is the appropriate vehicle I think, Mr Croucher.

MR CROUCHER: Indeed, it is, for these reasons.

KIEFEL J: Really, it comes down to the question whether or not the evidence was equivocal, does it not?

MR CROUCHER: Well, in my submission, the evidence was this. At trial the Crown led against the applicant’s co‑accused, LM, the following two sets of admissions. Firstly, it was said to the police he admitted that he had pushed the deceased, and those passages are helpfully summarised in the respondent’s summary of argument at pages 405 and 406 of the application book.

KIEFEL J: The other one was the admission to Asfer and Morgan to “see what you made me do”.

MR CROUCHER: To Mr Faulkner?

KIEFEL J: Yes, that is right.

MR CROUCHER: That was made to Mr Faulkner, yes. Yes, “Look what you made me do”.

KIEFEL J: Does it not follow here from – I mean, if one had any doubt about whether they were equivocal in their nature, that can be considered. The jury clearly thought they were…

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.

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Details

Case: [2011] HCATrans 304
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 the applicant's assertion that the trial judge had erred in law by failing to adequately direct the jury 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 concept of provocation as a partial defence to murder, particularly in relation to the requirement that the provocation must be such as to cause an ordinary person to lose self-control. The court also considered whether the judge's directions adequately addressed the subjective element of the defence, namely whether Mr. Baker himself had lost self-control as a result of the alleged provocation.

French CJ and Kiefel J held that the trial judge's directions were inadequate. They reasoned that the summing up did not clearly articulate the dual objective and subjective tests inherent in the defence of provocation. Specifically, the court found that the jury may not have fully understood that they were required to consider whether the provocation was capable of causing an ordinary person to lose self-control, and then, if so, whether Mr. Baker, given his individual circumstances, did in fact lose self-control. The judges emphasised the importance of a clear and comprehensive explanation of these elements to ensure a fair trial.

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

Orders