Col v The Queen - [2014] HCATrans 236

[2014] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S102 of 2014

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

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 OCTOBER 2014, AT 12.07 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR T.H. GARTELMANN. (instructed by Legal Aid NSW)

MR J.H. PICKERING, SC: I appear for the respondent, your Honours. (instructed by Director of Public Prosecutions (NSW))

CRENNAN J: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honour. We do seek an extension of time in this matter, your Honour.

MR PICKERING: That is not opposed.

CRENNAN J: Not opposed. You have that extension.

MR ODGERS: Thank you, your Honour. Your Honours, a recurring difficulty for criminal defence lawyers in particular is a client who is undoubtedly guilty of something but stubbornly refuses – even in the face of compelling evidence – to admit doing anything wrong. It is also a recurring difficulty for the criminal justice system where such a person is charged with two alternative offences.

A jury which, quite understandably, rejects the accused’s claims of complete innocence may jump too readily to a conclusion that the accused is guilty of the primary offence charged. An appeal court may have little sympathy for an appeal against conviction where the accused maintained his complete innocence, despite overwhelming evidence that he was not completely innocent. Yet, the public interest in preventing miscarriages of justice remains.

Just because the accused is terrified of any conviction or too stupid to face reality does not mean that the criminal justice system should not be concerned to ensure that he is convicted of the right offence. It can have real implications for the accused, as in the present case – the maximum penalty for intentional infliction of grievous bodily harm is 25 years in prison, while the maximum penalty for reckless infliction of grievous bodily harm is 10 years.

It was accepted in the Court of Criminal Appeal and is accepted here that there was compelling evidence that the applicant did inflict grievous bodily harm on his de facto partner – that he did assault her, that he did throw methylated spirits on the bed, and that he did flick his lighter. The primary focus of the appeal in the Court of Criminal Appeal, and here, is in relation to the conviction for the offence of intentionally inflict grievous bodily harm, rather than the alternative of recklessly inflict grievous bodily harm.

It was argued in the court below that it was unreasonable for the jury to infer the required intention, as distinct from mere recklessness. We say that Justice Latham, with Justice Davies agreeing, adopted an unduly restrictive approach to that question, asking whether it was open to the jury to…

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: [2014] HCATrans 236
Decision Date

CaseChat Overview and Summary

In *Col v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal by the applicant, Col, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial process.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character. This raised questions about the application of the rules of evidence, particularly concerning the prejudice that such evidence might have on a jury's assessment of guilt. The Court also considered whether the cumulative effect of admitting this evidence, along with other alleged errors, rendered the trial unfair.

The Court of Appeal applied the principles governing the admissibility of evidence of prior convictions and bad character, which generally require such evidence to be relevant to a fact in issue and not unfairly prejudicial. The judges reasoned that the evidence of prior convictions was not sufficiently probative of any issue in the murder trial and carried a significant risk of unfair prejudice. Consequently, the Court found that the admission of this evidence constituted a material error.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders