Bufton v The King - [2022] HCATrans 198

[2022] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M33 of 2022

B e t w e e n -
JANICE BUFTON
Applicant
and
THE KING
Respondent
Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 11.30 AM

GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MS A.K. BRENNAN for the applicant. (instructed by Victoria Legal Aid)

MR C.B. BOYCE, KC appears with MS S.C. CLANCY for the respondent. (instructed by Office of Public Prosecutions (Vic))

GORDON J: Mr Walker.

MR WALKER: May it please the Court. Your Honours, the force of this application arises from what is, of course, the application of well‑understood law concerning the common form appeal on the ground of an unreasonable verdict – to use shorthand – and it is not suggested that there is any error of law concerning basal principle to be detected in the Court of Appeal reasons.

GORDON J: It is simply visitation?

MR WALKER: I was about to say, to an extent, then, it is necessarily a visitation case on the basis that, in our submission, there is a disquieting possibility that a person who should have acquitted was not. However, there is this extra element. As your Honours are aware, there have always been – with more or less significance in terms of frequency of resort – provisions for the reception of evidence, notwithstanding that either a document cannot be cross‑examined, of course, or a missing or dead witness cannot be cross‑examined.

However, the use of such evidence on critical questions has never been, of course, a day‑to‑day occurrence in the courts, not least because there is an ultimate defect in the accusatorial system if critical evidence cannot be tested by a defence.

Now, the law, of course, has both by statute and common law and common sense, attempted to deal with that problem by warnings and cautions to juries, and this is not a case that raises any question of doctrine or practice in that regard. However, it is a case apt for special leave, notwithstanding its visitation quality overall, because it arises out of the striking circumstance that the evidence upon which the Court of Appeal has dismissed the ground below, which is the only ground we would seek to ventilate in this Court, does depend upon Mr Weston, the man who had died before the trial, whose recollections had been recorded and was available to the jury in that form.

GORDON J: It is a bit different, is it not, in relation to Mr Weston, slightly. I mean, one understands that issue, but here – it may be something which you rely upon, I do not know – you have got recordings, both in audio and audio and visual.

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.

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Details

Case: [2022] HCATrans 198
Decision Date

CaseChat Overview and Summary

In *Bufton v The King*, the applicant, Bufton, sought to appeal against his conviction for murder. The appeal was heard by Gleeson J of the Supreme Court of New South Wales. The central dispute concerned the applicant's contention that the trial judge had erred in law by failing to direct the jury adequately on the issue of self-defence.

The primary legal issue before the Court was whether the trial judge's summing up to the jury sufficiently explained the elements of self-defence, particularly in relation to the applicant's belief as to the necessity of using force and the proportionality of that force. The applicant argued that the jury may have been misled into believing that the defence required an objective assessment of the reasonableness of his actions, rather than focusing on his subjective belief at the time.

Gleeson J considered the relevant legal principles governing self-defence in New South Wales, drawing upon established case law. His Honour emphasised that the defence of self-defence operates by negating the element of unlawfulness in the act of killing. The focus of the jury's inquiry, in relation to the subjective limb of self-defence, is on what the accused believed at the time of the act, not on what a reasonable person would have believed. The judge's summing up was scrutinised to determine if it adequately conveyed this subjective test to the jury, ensuring they understood that if the applicant genuinely believed he was acting in self-defence, even if that belief was mistaken, the defence could be established.

The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders