Bugmy v The Queen - [2013] HCATrans 111

[2013] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S16 of 2013

B e t w e e n -
WILLIAM DAVID BUGMY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 10.12 AM

MS D. YEHIA, SC: If the Court pleases, I appear with MS G.A. BASHIR on behalf of the applicant. (instructed by Aboriginal Legal Service (NSW/ACT) Ltd).

MR L.A. BABB, SC: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

MS YEHIA: Your Honours, there is an extension of time sought.

HAYNE J: Is that opposed?

MR BABB: It is not opposed.

HAYNE J: Yes, you have that leave.

MS YEHIA: In our submission, the questions we have set out at application book 94 are questions of general importance. It is convenient to go directly to question 1 which concerns section 5D of the Criminal Appeal Act. Justice Hoeben in a judgment concurred in by Justices Johnson and Schmidt held – this is at application book 63, paragraph 53 of the judgment that, “It is not necessary to deal with” the ground of manifest inadequacy. The Court of Criminal Appeal also said that errors had been identified:

of such a kind that it will be necessary to re‑sentence the respondent.

If I could also take your Honours to page 64, paragraph 55. The Court then said:

It follows from my findings of error in his Honour’s approach to the objective seriousness of the offence and to the respondent’s subjective case, that a more severe sentence –

is warranted. In our submission, that demonstrates that there was a failure both by the Court of Criminal Appeal both to consider of manifest inadequacy and to consider the exercise of the residual discretion.

HAYNE J: Now, it may be, Ms Yehia – this may be a matter that Mr Babb may ultimately have to deal with - that what the Court said relative recently in Carroll v The Queen (2009) 83 ALJR 579 at 581, particularly in paragraph [9], may support the view that the three grounds pleaded as additional grounds of appeal – see page 44 of the application book – are better seen, perhaps even so far as properly seen, as no more than, as was said in Carroll, some explanation for what was alleged to be a sentence which, on its face, was “unreasonable or plainly unjust” and that they are not assignments of specific error.

MS YEHIA: With respect, your Honour, our submission would be that in truth they were particulars of the ground pleaded as manifest inadequacy, the ground that was not specifically considered by the Court of Criminal Appeal and certainly, in our submission, it was necessary for the Court of Criminal Appeal to consider both the issues of manifest inadequacy…

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: [2013] HCATrans 111
Decision Date

CaseChat Overview and Summary

Bugmy v The Queen concerned an appeal to the High Court of Australia following the applicant's conviction for murder. The applicant, Mr Bugmy, had been found guilty of murder by a jury in the Supreme Court of New South Wales and sentenced to imprisonment for life. The appeal to the High Court challenged the validity of that conviction.

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 issue of provocation as a partial defence to murder. Specifically, the court considered whether the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to cause an ordinary person to lose self-control, and the subjective elements, namely whether the applicant had in fact lost self-control. The court also considered whether the jury had been adequately directed on the relationship between provocation and the element of *mens rea* for murder.

The High Court held that the trial judge's directions to the jury on provocation were insufficient. Their Honours explained that the defence of provocation requires the jury to consider both the subjective state of mind of the accused and the objective standard of an ordinary person. The judge's charge had failed to adequately convey the objective limb of the test, leaving the jury with an incomplete understanding of the defence. Furthermore, the court found that the judge's directions had not sufficiently explained how the defence of provocation, if established, could negate the *mens rea* required for murder, potentially leading the jury to believe that provocation was a defence that operated independently of the mental element of the offence.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders