Britten v The Queen - [2004] HCATrans 424

[2004] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P70 of 2003

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

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.31 AM

MR B.S. HANBURY: If it please the Court, I appear on behalf of the applicant. (instructed by Beau Hanbury)

MR K.P. BATES: May it please the Court, with my learned junior, MS N.A. LOCKWOOD, I represent the respondent. (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ: Yes, Mr Hanbury.

MR HANBURY: If it please the Court. Your Honour, grounds for the application for special leave appear at page 64 of the application book. The applicant does not now contend for 1.1 nor 1.2. The applicant asks that the Court extends time or enlarges time.

GLEESON CJ: That is not opposed?

MR BATES: It is not opposed.

GLEESON CJ: Yes, you have that. Really it is 74, is it not, 74 and 75 of the draft?

MR HANBURY: Your Honour, that is the draft. The application ‑ ‑ ‑

GLEESON CJ: So we can delete 1.1 and 1.2?

MR HANBURY: Yes.

GLEESON CJ: And we are concerned with 1.3 and 1.4?

MR HANBURY: Yes.

GLEESON CJ: Thank you. Go ahead.

MR HANBURY: The principle that the applicant contends for in this application, your Honour, is that in the case of McGarry the High Court gave reasons and directions about the way in which section 98 of the Sentencing Act 1995 should be approached. In this case the applicant had previous convictions and, with respect, I would be grateful if the members of the Court would turn to page 13 of the application book.

The reason for that is because the applicant who had a previous record in New South Wales and Queensland came to Western Australia. He was convicted of serious offences – this was in 1993 – and at about line 10, just above it, the members of the Court, with respect, would see that in 1993 the applicant was sentenced to 12½ years in gaol and was granted parole for an event in which he was involved.

GLEESON CJ: What did he do?

MR HANBURY: The offence was sexual penetration. He had taken a young woman in a motor vehicle to a remote location, had assaulted the complainant and left her in a bad state. He was subsequently charged with sexual penetration, amongst other offences.

GLEESON CJ: He seems to be a sadist, is that right?

MR HANBURY: I understand, with respect, why your Honour would say that, but certainly in relation to that set of offences he appealed to the Court of Criminal Appeal. He represented himself, as the members of the Court, with respect, would see at page 13. His appeal against the 12½ years was dismissed.…

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 Britten v The Queen

Details

AGLC: Britten v The Queen [2004] HCATrans 424
Case: [2004] HCATrans 424
Decision Date

CaseChat Overview and Summary

The appellant, Britten, was convicted of murder in the Supreme Court of Queensland. The Crown alleged that Britten had intentionally caused the death of the deceased. Britten appealed his conviction to the High Court of Australia.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the concept of "unlawful killing" as it related to the defence of provocation. Specifically, the question was whether the jury should have been instructed that provocation could negate the element of unlawfulness in the killing, thereby reducing the charge from murder to manslaughter.

The High Court, comprising Gleeson CJ, Gummow and Heydon JJ, held that provocation, when established, does not negate the unlawfulness of the killing. Instead, provocation operates as a partial defence that reduces the offence of murder to manslaughter. Their Honours reasoned that the element of unlawfulness is inherent in the act of killing itself, and provocation merely provides a mitigating circumstance that justifies a lesser sentence or conviction. The jury's role is to determine whether the elements of murder have been proven beyond reasonable doubt, and if so, whether the defence of provocation has been established. If provocation is established, the offence is then manslaughter, not because the killing was lawful, but because the provocation mitigates the culpability for an otherwise unlawful killing.

The appeal was dismissed.

Orders