Barden v The Queen - [2012] HCATrans 27

[2012] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B33 of 2011

B e t w e e n -
TYSON ALFRED BARDEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 10 FEBRUARY 2012, AT 1.59 PM

MR M.J. BYRNE, QC: May it please the Court, I appear with my colleague, MR E.P. Mac GIOLLA RI, for the applicant. (instructed by Fisher Dore Lawyers)

MR M.R. BYRNE, SC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

KIEFEL J: Thank you.

MR M.J. BYRNE: Your Honours, the application for special leave is founded upon the proposition that the applicant, aged 19 at the relevant time, has suffered a personal miscarriage of justice. We say that the miscarriage of justice arises through direction given in response to a question by the jury on a central and critical issue in the trial on the charge of murder. That issue was the nature of the intention required in order to return a verdict of guilty of murder in the circumstances of this case.

Indeed, whilst it is clear that a person cannot have an intention to cause an unforeseen outcome, the jury needed to be directed in unambiguous terms that such was the law and that the law required, for there to be a conviction for murder, for them to be satisfied beyond reasonable doubt that the applicant had the specific subjective intention to cause bodily harm.

The impugned direction which was followed by a guilty verdict within 25 minutes did not, we respectfully submit, properly put the issues before the jury. The direction followed a question by the jury which was in strong and clear terms. May we take your Honours immediately to that? It appears, unfortunately not as part of the transcript at the beginning of the application book, but it appears in the judgment of the members of the Court of Appeal, and the reference we take your Honours to is page 44 of the application book, in paragraphs [21] and [22]. Your Honours will see the question in paragraph [21] is in these terms – and this is why we say it is strong and clear terms:

“Would ignorance of the consequences of his actions mean intent could not be GBH -

or grievous bodily harm. The answer to the question, we respectfully again submit, was neither strong nor clear. Indeed, our proposition, which we put forward to found the grant of special leave, is it was misleading. We take your Honours, particularly, to two aspects of that answer and we will return to this shortly if necessary. This was a direction in response to that question. It is the last thing, effectively, the jury hear. It is a direction which, in the second line, says…

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 Barden v The Queen

Details

AGLC: Barden v The Queen [2012] HCATrans 27
Case: [2012] HCATrans 27
Decision Date

CaseChat Overview and Summary

In *Barden v The Queen*, the High Court of Australia considered an appeal from a judgment of the Court of Criminal Appeal of Queensland. The appellant, Barden, had been convicted of murder and sentenced to life imprisonment. The appeal concerned the admissibility of certain evidence and the fairness of the trial.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained from the appellant's mobile phone, and whether the trial judge had adequately directed the jury on the issue of self-defence. Specifically, the Court had to determine if the search of the phone was lawful and if the information obtained was relevant and admissible, and whether the jury instructions on self-defence were sufficient to ensure a fair trial, given the evidence presented.

Kiefel and Bell JJ found that the search of the appellant's mobile phone was conducted without a warrant and without consent, and that the relevant legislation did not authorise such a search in the circumstances. Consequently, the evidence obtained from the phone was unlawfully obtained and should not have been admitted. Furthermore, their Honours held that the directions given to the jury regarding self-defence were inadequate, failing to properly explain the relevant legal principles and the jury's role in assessing the evidence. The appeal was therefore allowed.

Orders