Browne-Kerr v The Queen - [1991] HCATrans 31

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml8 of 1989
B e t w e e n -
DONALD STUART BROWNE-KERR

Applicant

and
THE QUEEN

Respondent

Application for special
leave to appeal

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

Browne-Kerr

7/2/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 FEBRUARY 1991, AT 11.09 AM

MR N. CRAFTI:	May it please the Court, I appear on behalf of the applicant in this matter. (instructed by
James T. Stevens)

MR M.S. WB-INBERG, QC: If the Court pleases, I appear

together with my learned friend, MR J.D. McARDLE,
on behalf of the respondent. (instructed by
Commonwealth Director of Public Prosecutions)

BRENNAN J:	Mr Crafti.
MR CRAFTI:	May it please the Court, I have outlines of

submission which I seek to hand to the Court.

BRENNAN J:

Is it right to say that ground 2 is only reached

if you fail on ground l?

MR CRAFTI:

On one view of the argument that would be so,

Your Honour, although speaking for my part I would
be anxious that that matter be resolved as well in
case the Full Court ordered a retrial or might
decide that there should still be a retrial,
notwithstanding that it goes back to the Full
Court, because what will then happen is that the
trial will be conducted on an evidentiary basis
which, we would submit, is erroneous. But,
Your Honour's observation is one which had already
crossed my mind, that it may be premature to argue
ground 2 on one view of it if the matter is
remitted to the Full Court. But certainly I, for
my part, would be anxious to have the matter
resolved so that in the event that there was a
retrial we did not have to come back yet again to
discuss the matters that are contained in ground 2.
Your Honours, the proposition - perhaps I

should indicate at the outset, the applicant was

charged with 57 counts of forgery. He was
acquitted on 31, convicted on 26 and appealed
on nine grounds initially against conviction to the
Full Court and was allowed to add two further
grounds. Judgment in the Full Court decision was

delivered on 1 May 1989 about two months after this
Court delivered its judgment in Jones' case,
(1988-89) 166 CLR 409. This Court held on that occasion that a Court of Criminal Appeal cannot
fail to hear and determine tenable grounds that are
raised and argued in support of verdict of
acquittal merely because the court accepts other
grounds of appeal which result in the quashing of
that conviction and an order for a retrial.
This Court then went on to say that a Court of

Criminal Appeal which confines its judgment in that
way fails to exercise fully its jurisdiction and
the appeal remains partially undetermined. That is

Browne-Kerr

7/2/91

exactly what happened…

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 Browne-Kerr v The Queen

Details

AGLC: Browne-Kerr v The Queen [1991] HCATrans 31
Case: [1991] HCATrans 31
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Donald Stuart Browne-Kerr for special leave to appeal to the High Court of Australia against a decision of the Full Court of the Supreme Court of Victoria. Browne-Kerr had been charged with 57 counts of forgery, of which he was acquitted on 31 and convicted on 26. He appealed his convictions to the Full Court on nine grounds, later adding two more. The Full Court allowed his appeal, quashed the convictions, and ordered a retrial.

The central legal issue before the High Court was whether the Full Court of Victoria had failed to fully exercise its appellate jurisdiction by not determining all tenable grounds of appeal raised by Browne-Kerr. Specifically, the applicant argued that the Full Court had not determined grounds 2, 3, and 4 of his appeal, which related to the alleged inconsistency of the verdicts, the perversity of the verdict, and the verdict being unsafe and unsatisfactory, respectively. The applicant contended that this failure to determine all grounds meant the appeal remained partially undetermined.

The High Court considered its previous decision in *Jones* (1988-89) 166 CLR 409, which established that a Court of Criminal Appeal cannot refuse to hear and determine tenable grounds of appeal that support an acquittal simply because it upholds other grounds that lead to the quashing of a conviction and an order for a retrial. Such a failure means the Court of Criminal Appeal has not fully exercised its jurisdiction. The applicant argued that the Full Court's judgment in his case mirrored this situation, as it appeared to have not determined grounds 2 and 3, and potentially ground 4, despite quashing the convictions and ordering a retrial. The respondent accepted that if any of the three grounds had been sustained, the consequence would have been a quashed conviction and a new trial.

Orders