Clune v The Queen - [2003] HCATrans 650

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A44 of 2002

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

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 10.45 AM

MR B.E. WALTERS, SC: May it please the Court, I appear with my learned friend, MR A.J. PALMER, for the applicant. (instructed by Amad & Amad Lawyers)

MR P.J.L. ROFE, QC: May it please the Court, I appear with my learned friend, MS G. DAVISON, for the respondent. (instructed by Director of Public Prosecutions for the State of South Australia)

McHUGH J: Yes, thank you, Mr Walters.

MR WALTERS: Although the Court has considered the nature of directions which may be made in circumstances where an accused does not give evidence in three cases over recent years, if one includes Dyer’s Case in that group, none of those decisions resolved the questions raised by the applicant’s case. Even if the trial were held today, there is uncertainty as to how to approach the matter. Can I take the Court to certain features of this case which make it different from the cases where the issue of judicial comment on an accused’s failing to testify had been considered.

First of all, unlike Weissensteiner, RPS, Azzopardi and Dyers, this was a joint trial. Further, the co‑accused gave evidence exculpating the applicant. Obviously, that evidence was not in the result accepted but at the time the trial judge was directing the jury as to the failure of the applicant to testify, the circumstances were that there was an explanation before the jury for the facts that the Crown had placed before the jury.

Joint trials raise important issues. The thrust of the cases hitherto has been to restrict comments of trial judges where an accused has not testified to cases where the accused, and the accused alone, is likely to have knowledge of certain facts. None of the previous cases have considered the situation where there are multiple accused. The previous cases have also not settled the issue of the warnings which should accompany comments where an accused does not give evidence. In our submission, this is a good vehicle for the consideration of the questions raised.

HAYNE J: Is it? It all happened a very long time ago and the events into which inquiry would have to made occurred in November 1996. The trial is February 1999. The jury, at the joint trial of the applicant and the other accused person, took a very short time to convict in what was, on one view of the matter, a very strong circumstantial case. Why should this Court take up this case more than three years after conviction, more than five and a half years after the events 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 Clune v The Queen

Details

AGLC: Clune v The Queen [2003] HCATrans 650
Case: [2003] HCATrans 650
Decision Date

CaseChat Overview and Summary

In *Clune v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Clune, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. Clune then sought and was granted special leave to appeal to the High Court.

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 evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The High Court analysed the evidence in relation to the elements of provocation as defined by the law. Their Honours considered the nature of the deceased's conduct, the appellant's state of mind, and the causal connection between the provocation and the appellant's actions. The court affirmed that for provocation to be a defence, the loss of self-control must be sudden and temporary, and the act done in response must be a reasonable one in the circumstances. The judges examined whether the jury, properly directed, could have concluded that these conditions were met.

The High Court allowed the appeal, quashed the conviction for murder, and ordered that a verdict of manslaughter be entered in its place. The court found that the evidence was capable of supporting a defence of provocation and that the jury had not been adequately instructed on this issue, leading to a miscarriage of justice.

Orders