Baraghith v The Queen - [1991] HCATrans 331

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S72 of 1991
B e t w e e n -
HAMDI BARAGHITH

Applicant

and
THE QUEEN

Respondent

Application for special
leave to appeal

DEANE J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1991, AT 3.29 PM

Baraghith

15/11/91

MR P.J. HIDDEN, QC:

May it please the Court, I appear with

my learned friend, MR T.A. GAME, for the applicant.
(instructed by Freemans)

MR R.O. BLANCH, QC:

May it please the Court, I appear with

my learned friend, MR G.S. HOSKING, for the
respondent. (instructed by the Director of Public
prosecutions (New South Wales)).

DEANE J: Yes, Mr Hidden.

MR HIDDEN:

If the Court pleases. Your Honours, this is an

application for special leave to appeal against a
decision of the Court of Criminal Appeal dismissing
the applicant's appeal against his conviction and
sentence for murder.
Your Honours, the applicant was found guilty

of the murder of his wife. It was common ground
that he had killed her by beating her with a house
brick. A number of matters of defence were raised
by the evidence in the trial but the substantial
defence was provocation which, if it had been
successful, of course, would have led to a verdict
of guilty of manslaughter but not of murder.
Your Honours, the provocation was said to

arise from the history of the relationship between
the applicant and his wife culminating with a
particular incident on the night on which she died
and that incident itself was of considerable
significance on the question of provocation.
The relevant facts, Your Honours, are probably

best disclosed in the lengthy statement which the
applicant made to the jury. That statement or
almost all of that statement, Your Honours, is set
out in the summing up of the learned trial judge
which commences at page 86 or, rather, the
reference to the statement commences at page 86 of

the application book. The applicant is Egyptian - incidentally, do Your Honours have difficulty
seeing the printed pagination in the application
book?

DEANE J: Yes.

MR HIDDEN:

We have that difficulty ourselves.

Would it be

more convenient, Your Honours, if we refer to the
pagination of the summing up itself? In which
case, we are talking about page 69 of the summing
up at the bottom of the page.

DEANE J: Yes. Some of that is a bit hard too. If you look

at what I think is page - the page in front of me I
cannot work out either but what page - - -

Baraghith

15/11/91

MR HIDDEN:

I am sorry, Your Honours, it is page 69 of the

summing up and page 86 of the application book. It
starts with the words:

given you. But I do not think that the
purpose of this summing up will be greatly
served -

DEANE J:

Mr Hidden,…

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 Baraghith v The Queen

Details

AGLC: Baraghith v The Queen [1991] HCATrans 331
Case: [1991] HCATrans 331
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 Baraghith, sought to appeal against a decision of the Court of Criminal Appeal of New South Wales, which had dismissed his appeal against his conviction for the murder of his wife. The applicant had been found guilty of murder, with the substantial defence raised at trial being provocation, which, if successful, would have reduced the charge to manslaughter.

The central legal issue before the High Court was whether certain aspects of the applicant's background and personal circumstances were relevant to the defence of provocation. Specifically, the applicant contended that his identity as an Egyptian Muslim male, his migration to Australia for the purpose of marrying his Australian wife, and the significant cultural and familial dislocation this entailed, were matters that should have been considered by the jury in assessing provocation. The applicant argued that these factors, in conjunction with the history of his relationship with his wife and a particular incident on the night of her death, were relevant to whether his actions were provoked.

The applicant's legal team submitted that the evidence concerning his background, including his religious and cultural identity and the circumstances of his migration, was of considerable significance to the issue of provocation. They argued that these personal characteristics were not merely background details but were intrinsically linked to his perception of events and his reaction to them. The Court was invited to consider whether the trial judge had adequately directed the jury on the relevance of these matters to the defence of provocation, or whether the exclusion or insufficient consideration of such evidence had led to a miscarriage of justice.

Orders