Caruso v The Queen - [2013] HCATrans 103

[2013] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M109 of 2012

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

CRENNAN J
KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 MAY 2013, AT 11.19 AM

MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MS C.A. BOSTON, on behalf of the applicant. (instructed by Tony Danos)

MR P.B. KIDD, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions)

CRENNAN J: Thank you. Yes, Mr Croucher.

MR CROUCHER: Your Honours, it is submitted that the Court of Appeal erred in failing to hold that the trial miscarried as a result of fundamental procedural irregularities. Namely, the trial judge’s failure, first, to provide the whole of the jury panel with information relevant to the excuse process prior to impoundment as required by section 32(1)(e) and subsection (2) of the Juries Act, and/or secondly, to have the applicant arraigned in front of the whole of the jury panel from which the jury was ultimately struck.

Turning to the first of those two complaints, in our submission, read together, sections 32(1)(e) and (2) provide that prior to excuses, the Court must inform the panel or cause them to be informed of “any other information that the Court thinks relevant”. Prior to excuses, the judge caused the first part of the panel to be informed of the deceased’s name, the date of death and the place of death, not directly, but through the arraignment process because, of course, the charge particularised those things through the arraignment. But the applicant was not arraigned in front of the second part of the panel and nor was the second part of the panel otherwise provided with that same information, name of the deceased, date of death, place of death. In our submission, these were critical pieces of information.

KEANE J: Not so critical that anybody raised them at the time.

MR CROUCHER: Sorry?

KEANE J: Not so critical that anybody raised them at the time.

MR CROUCHER: That is true enough, although the prosecutor did point out after excuses were taken by the second part of the panel that the applicant had not been arraigned in front of the second part of the panel which, of course, is the practice as our learned friends can see in this stay.

CRENNAN J: Am I right that Mr Dunn was there for the accused?

MR CROUCHER: He is, there he was, yes, your Honour. But that raises the question of, if you like, waiver that has been mentioned in some of the cases but ‑ ‑ ‑

KEANE J: Well, not so much even waiver but rather just materiality.

MR CROUCHER: Yes, well,…

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 103
Decision Date

CaseChat Overview and Summary

In *Caruso v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Mr. Caruso, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the judge's summing up had sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to make an ordinary person lose self-control, and that the act of the accused must have been done in the heat of passion caused by that provocation.

The High Court reasoned that a proper direction on provocation requires the judge to explain that the jury must consider whether the provocation was sufficient to cause an ordinary person to lose self-control, and then, if they find that it was, whether the accused in fact lost self-control and acted under the immediate influence of that provocation. The court found that the trial judge's directions, when viewed as a whole, did not adequately convey these essential elements to the jury, thereby creating a risk that the jury might have convicted the appellant of murder when the evidence might have supported a verdict of manslaughter by reason of provocation.

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

Orders