Coleman v The Queen - [1991] HCATrans 57

A ~, AUSTll.illA,,l.1-
-~)>$~"'~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S67 of 1990
B e t w e e n -
GRAHAM JOHN COLEMAN

Applicant

and
THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

Coleman

5/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 MARCH 1991, AT 10.16 AM

MR G.R. JAMES, QC:

May it please the Court, in that matter

I appear for the applicant with my learned friend,
MR S.J. ODGERS. (instructed by Maria F. Lynch)

MR R.N. HOWIE, QC:

I appear with my learned friend,

MR R.A. HERPS, for the respondent Crown.
(instructed by S.E. O'Connor, Solicitor for Public
Prosecutions)

MASON CJ:	Mr James.
MR JAMES:	Your Honours, we have made available our outline

of argument and perhaps I should hand up eight
copies of that outline.

MASON CJ: Yes, thank you.

MR JAMES:

Your Honours, dealing with the first matter, the

meaning of "malice", malice both at common law and
as a statutory concept has received considerable
attention particularly in the United Kingdom. That
attention has not resolved many of the difficulties
associated with that concept, particularly in that
aspect of it which is sometimes referred to as
recklessness.
Probably the best illustration that I could

give to the Court of the lines of thought
concerning that concept in modern times is to be
found in Reg v Spratt, (1990) 1 WLR 1073, in which
the Court of Appeal considered the English position
in relation to recklessness malice in respect of
the offences against the Person Act of 1861. In
that decision the Court of Appeal considered both
Reg v Venna and Reg v Cunningham. It was
Cunningham that has led to the modern tide of
thought concerning the nature of malice.
If I might take the Court, simply using that

case as an illustration, to page 1077G:

It is plain, therefore, that recklessness
in the Cunningham sense means that the accused
has foreseen that harm may be done and yet has gone on to take the risk. Mr Arlidge does not
suggest that in this type of offence
recklessness in the Caldwell sense has any
application.

Their Honours then go on to consider recklessness
under section 47. If I can take Your Honours then
to page 1078B where Their Honours say:
"Recklessness" was there defined in a

manner consistent with that in Reg v
Cunningham -

Coleman

5/3/91

that is, advertence to the consequences of the Act,
and there is a reference there to Reg v Venna and
Their Honours set out in that judgment the passage from the summing up in Venna at pages 427 to 428 in the passage cited:
"If he lashes out with his feet, knowing that there are officers about him and knowing that
by lashing out he will probably or is likely
to kick somebody or hurt his hand by banging
his…

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 Coleman v The Queen

Details

AGLC: Coleman v The Queen [1991] HCATrans 57
Case: [1991] HCATrans 57
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Coleman, sought special leave to appeal to the High Court of Australia against a decision of a lower court. The respondent was the Crown. The central issue concerned the meaning of "malice" in criminal law, both at common law and as a statutory concept.

The High Court was required to consider the nature of malice, particularly in the context of recklessness, and how it applied to offences against the person. The applicant's argument, as presented by Mr. James QC, focused on the interpretation of recklessness as a form of malice, drawing upon English case law, specifically *Reg v Spratt*, *Reg v Venna*, and *Reg v Cunningham*.

The court's attention was directed to the definition of recklessness in *Reg v Cunningham*, which involved an accused foreseeing that harm might be done and proceeding to take that risk. The applicant's counsel highlighted that this understanding of recklessness, involving advertence to the consequences of an act, was consistent with the direction given in *Reg v Venna*. The court was invited to consider whether a person who recklessly applies physical force to another should be considered outside the criminal law of assault, noting the often indistinguishable line between intention and recklessness in such cases. The applicant's argument also touched upon the difficulties in applying the *Caldwell* test for recklessness.

Orders