Black v The Queen - [1993] HCATrans 124

~ -.~·i-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl21 of 1992
B e t w e e n -
MICHAEL JOHN BLACK

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
DEANE J

DAWSON J

Black

20/5/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1993, AT 9.58 AM

applicant, together with my learned friend,
MR S.J. ODGERS. (instructed by T.A. Murphy, Acting
Director, Legal Aid Commission (New South Wales))

MR R.O. BLANCH, QC:

May it please the Court, I appear for

the Crown, with my learned friend,
MR F.D.L. HOLLES. (instructed by S.E. O'Connor,
Solicitor to Director of Public Prosecutions (New
South Wales)).

MR GAME:

If the Court pleases, this application for special

leave arises out of a decision of the Court of
Criminal Appeal in February 1992 dismissing appeals
against convictions following two trials, one
relating to a fire which occurred in September
1986, and another relating to a fire which occurred
in November 1987.
There is one common point between the two

trials which concerns the refusal of the trial
judge in both cases to order separate trials. It
will be our submission that in each case separate
trials should have been ordered, that in each case
the trial judge erred in principle in the approach
taken to the ordering of separate trials.

MASON CJ:

But have you not got to show that the failure to

order separate trials resulted in a miscarriage of
justice?

MR GAME:

Your Honour, we would also submit that the first

question is whether or not error has been
established and, if error has been established, the
question is then one of the application of the proviso. So that our submission would be that
section 6 of the Criminal Appeal Act demands, in
circumstances such as this, an approach which seeks
to identify whether there has been a defect in the trial such as to amount to an error of law, and in

our submission these are errors of law.

MASON CJ: But does not the decision of the Court in Darby

establish that it is for you to show that there has
been a miscarriage of justice at the trial,
resulting from the failure to order separate
trials?

MR GAME:

The decision in Darby really only dealt with the

question of separate trials - that is not the
central aspect of the decision of the Court in
Darby. In my submission, traditionally, in
relation to separate trials, the question has been
treated as if it were a question whether or not a
miscarriage of justice has occurred. That seems to

Black

20/5/93

follow from a line of cases going back to
Grondkowski.
But in our submission, that approach is

erroneous and it is erroneous because, just as in,
for example, Marie, erroneous admission of
evidence, results in the…

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 Black v The Queen

Details

AGLC: Black v The Queen [1993] HCATrans 124
Case: [1993] HCATrans 124
Decision Date

CaseChat Overview and Summary

The applicant, Black, sought special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had dismissed Black's appeals against convictions following two separate trials, both concerning fires that occurred in 1986. The central issue common to both trials was the trial judge's refusal to order separate trials for the charges.

The legal issues before the High Court concerned whether the trial judge erred in principle in their approach to ordering separate trials, and if so, whether this error resulted in a miscarriage of justice. The applicant argued that the refusal to order separate trials constituted an error of law, rather than merely a discretionary matter where the sole focus was on a miscarriage of justice. The applicant contended that the established approach, which traditionally treated the question of separate trials as one of miscarriage of justice, was erroneous.

The applicant submitted that, analogous to the erroneous admission of evidence or the refusal of an adjournment, an erroneous decision to refuse separate trials should lead to the application of the proviso, meaning the conviction would only be overturned if a miscarriage of justice had occurred. The applicant argued that the discretionary principles governing separate trials had not been adequately elucidated and that certain principles applied in New South Wales, requiring evidence to be "significantly different" and one case "significantly weaker than the other" as a precondition for separate trials, were erroneous. The applicant sought to establish that the trial judge's approach to these principles constituted an error of law.

Orders