Chen v The Queen - [2014] HCATrans 140

[2014] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S23 of 2014

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

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2014, AT 12.02 PM

MR J.L. GLISSAN, QC: If the Court please, I appear with my learned friends, MR A.G. JAMIESON and MR D.H. NAGLE, for the applicant. (instructed by Jeffreys & Associates)

MR T. MUIR: May it please the Court, I appear for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

KIEFEL J: Yes, Mr Glissan.

MR GLISSAN: Your Honours, this is a case which we say satisfies - if you like ticks all the boxes for special leave because it raises an important matter of statutory construction in relation to the operation of the Criminal Code (Cth). It raises matters where there have been continuing and persistent difficulties in the understanding of that section, both judicially and by the prosecutorial authorities and it provides, we would respectfully say, an ideal vehicle for the matter because of the length of the sentence and the nature of the sentence that was imposed on the applicant in relation to a matter which, if properly prosecuted, would have been for a much less serious offence, namely, breach of the reporting legislation, rather than for a criminal offence involving so‑called money laundering.

BELL J: Well, you say that it raises an important matter of construction. Am I right in understanding that the justification for this exceedingly belated application is the decision of the Court of Criminal Appeal in the matter of You Quin Chen which, as I understand your submissions, you contend reveals a flaw in the prosecution case on which your client was convicted?

MR GLISSAN: That is precisely right.

BELL J: Now, do you challenge the analysis in Milne v The Queen of the elements of the offence created by section 400.3?

MR GLISSAN: Your Honour, what we say in relation to Milne v The Queen is slightly different to that, certainly not a challenge to it and, indeed, we embrace it but we say it does not go far enough in revealing the difficulties that are faced in relation to this section for two reasons. Milne deals with the construction of the section so far as the present activity and the future intention in relation to a crime is concerned.

What is really involved and what is not addressed in Milne, and this is what we say remains the heresy that needs to be corrected and only this Court can correct, is twofold. The first is there is within the section itself a double tense problem in the second part of the section and I will come to that in a moment and make that clear if I may.

The second is this, that…

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 Chen v The Queen

Details

AGLC: Chen v The Queen [2014] HCATrans 140
Case: [2014] HCATrans 140
Decision Date

CaseChat Overview and Summary

In *Chen v The Queen*, the High Court of Australia considered an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the appellant's conviction for murder. The appellant had been found guilty of murder following a trial in the Supreme Court of Victoria, and this conviction was subsequently upheld by the Court of 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 appeal questioned 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 whether the appellant's actions were a response to that provocation.

The High Court analysed the principles of provocation as established in Australian jurisprudence, particularly the requirement for a causal link between the provocation and the loss of self-control, and the objective standard against which the provocation must be assessed. Their Honours examined the specific directions given by the trial judge in light of these principles and the evidence presented at trial. The Court concluded that the directions provided to the jury were insufficient to properly guide them on the objective limb of the provocation defence, thereby creating a substantial risk that the jury had applied an incorrect legal test.

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

Orders