Caz v The Queen - [2012] HCATrans 244

[2012] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2012

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

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 OCTOBER 2012, AT 10.12 AM

MR P.E. SMITH: May it please the Court, I appear with my learned friend, MS K.M. HILLARD, for the applicant. (instructed Fisher Dore Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland: I appear with my learned friend, MR J.R. JONES, for the respondent. (instructed by Director of Public Prosecutions)

FRENCH CJ: Yes, thank you, Mr Smith.

MR SMITH: Your Honours, Mr CAZ seeks an extension of time within which to file his application.

FRENCH CJ: Yes. Is that opposed, Mr Solicitor?

MR SOFRONOFF: No, your Honour.

FRENCH CJ: All right. Extension of time is granted. Yes.

MR SMITH: Thank you, your Honour. Your Honours, the special leave question in this case is whether the ‑ ‑ ‑

FRENCH CJ: Incidentally we have an amended application from you I think, is that right?

MR SMITH: That is so, your Honour. It related to whether it was an appeal against the whole or part of the judgment, and I think that is been clarified in the amended application, your Honours.

FRENCH CJ: All right. Well, the application is amended accordingly.

MR SMITH: Thank you, your Honour. The special leave question is whether the present offence of maintaining an unlawful sexual relationship in its present form in Queensland offends Chapter III of the Constitution, and the submission by the applicant is that there are a number of issues which flow from the wording of that section which deprive the applicant in this case of a fair trial including the lack of certainty about unanimity of verdict, secondly the lack of particularity and accordance of consequence of natural justice, issues concerning the standard of proof and the basis upon which someone is to be sentenced. Your Honours, in the matter we have forward for the Court’s consideration is a copy of the relevant section and your Honours may observe that this came into force in Queensland on 1 May 2003.

FRENCH CJ: Well, this his dealing with KBT, is it not, or a response to KBT?

MR SMITH: It was exactly so, your Honour, because KBT – this Court was stringent as to its directions concerning unanimity of decision and obviously enough the legislature to surmount those issues introduced this section.

FRENCH CJ: Well, now this is not an offence against the law of the Commonwealth so we are not concerned with section 80 are we?

MR SMITH: Well, I would say inferentially so, your Honour, because the District Court is still a court which exercises federal jurisdiction, albeit a State indictment was involved in this case.…

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 Caz v The Queen

Details

AGLC: Caz v The Queen [2012] HCATrans 244
Case: [2012] HCATrans 244
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Caz, against a conviction for murder. The applicant 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 the appeal. The High Court granted special leave to appeal from the decision of the Court of Appeal.

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 defence of provocation. Specifically, the applicant argued that the jury should have been instructed that the question of whether the provocation was sufficient to reduce the charge from murder to manslaughter was a question of fact for them to determine, rather than a question of law for the judge.

The High Court, in a joint judgment, held that the defence of provocation, as codified in Victorian law, requires the jury to consider two elements: first, whether the provocation was such as to cause an ordinary person to lose self-control, and second, whether the accused did in fact lose self-control. While the first element involves an objective standard, the ultimate determination of whether the provocation was sufficient to reduce the offence to manslaughter is a question of fact for the jury. The Court found that the trial judge's directions had not adequately conveyed this to the jury, thereby creating a risk of misdirection.

The High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Supreme Court of Victoria for a retrial on the charge of murder.

Orders