Collie v The Queen - [2006] HCATrans 624

[2006] HCATrans 624

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A26 of 2005

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

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 10 NOVEMBER 2006, AT 9.30 AM

MR. P.A. CUTHBERTSON, QC: If the Court please, I appear for the applicant. (instructed by Legal Services Commission)

MR S.P. PALLARAS, QC: If the Court please, I appear with MS C.J. MATTEO for the respondent. (instructed by Director of Public Prosecutions (South Australia))

HAYNE J: Yes, Mr Cuthbertson.

MR CUTHBERTSON: If I may, I would like to deal firstly with the issue of the direction that the bad character of the applicant can be used on the question of the credibility of his utterances. Your Honours would not be familiar with the conversation, but I have included it in the applicant’s materials because it is very short. It is three pages at the commencement of the booklet and, in my submission, it gives a very coherent account, albeit short, of the case for the applicant and explains most of the circumstantial evidence against him.

From the transcript, “male 1” being the applicant and “female 1” being his wife, one can see that in the first sentence he asserts it was not him. He asserts his innocence. Halfway down the page in the male 1 utterance he again assets his innocence, asserts that they are friends of his, the deceased, and he has known the deceased since he was 7 years old, relevant to the motive which the Crown advanced which was anger or in part anger by the applicant because the male deceased had had a gun the applicant gave him in his cannabis business confiscated by the police in New South Wales. At the bottom, the very last passage on the first page of that transcript, you will that he gives a very coherent account:

we had a barney out the back that day. And she fuckin’ threw the keys and jumped the fence –

There is an assertion there that the reason they were outside the house and that the female was outside the house was not, as the Crown asserted, because he was caught in the act of killing the deceased by the two men who came to the door and he was fleeing out the back, but it asserts his version which he told the neighbour that he had an argument out the back. So he has his wife outside, contrary to the Crown case which had his wife locked inside and unable to get outside because of the appearance of these two men at the front door. He gives an account there that the keys went over into the neighbours. At the top of the next page, he said he had to go round…

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 Collie v The Queen

Details

AGLC: Collie v The Queen [2006] HCATrans 624
Case: [2006] HCATrans 624
Decision Date

CaseChat Overview and Summary

In *Collie v The Queen*, the appellant, Collie, was convicted of murder and sentenced to imprisonment. Collie appealed his conviction to the High Court of Australia.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. Collie argued that there was sufficient evidence before the jury to raise the issue of provocation, and that the absence of such a direction constituted a miscarriage of justice.

The High Court considered the evidence presented at trial, including Collie's own testimony regarding the events leading up to the killing. Their Honours applied the principles established in *Green v The Queen* and *Osland v The Queen*, which outline the circumstances under which a judge is obliged to leave the defence of provocation to the jury. The court determined that, based on the evidence, a reasonable jury, properly instructed, could have found that Collie acted under provocation. Consequently, the failure to direct the jury on this defence was a material error.

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

Orders