Darkan, Deemal-Hall & McIvor v The Queen - [2006] HCATrans 164

[2006] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B87 of 2005

B e t w e e n -
HOWARD RODNEY DARKAN
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Brisbane No B88 of 2005

B e t w e e n -
GWENDOLINE CECILY DEEMAL‑HALL
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Brisbane No B89 of 2005

B e t w e e n -
MARLOW PHILIP ANDREW McIVOR
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 APRIL 2006, AT 10.16 AM

MR A.J. RAFTER, SC: May it please the Court, I appear for the appellant, Darkan. (instructed by Legal Aid Queensland)

MR P.J. CALLAGHAN, SC: If it please the Court, with my learned friend, MR A.W. MOYNIHAN, we appear on behalf of the appellant, Deemal‑Hall. (instructed by Legal Aid Queensland)

MR M.J. BYRNE, QC: May the Court please, I appear for the appellant, McIvor. (instructed by Legal Aid Queensland)

MR M.J. COPLEY: If the Court pleases, I appear on behalf of the respondent in all matters. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: I understand counsel has agreed between themselves on an order of address.

MR CALLAGHAN: If that is suitable to the Court, we have agreed on that.

GLEESON CJ: Yes, Mr Callaghan.

MR CALLAGHAN: We are also, it seems, all in agreement as to the issue which is raised by this appeal which is the meaning of the term “probable consequence” as it appears in sections 8 and 9 of the Criminal Code (Qld) and the manner in which a jury in a criminal trial should be instructed when these sections are operative.

Our submissions are straightforward, that is that, as a general proposition, the term “probable consequence” means what it says and does not require elaboration. In the alternative, if it does require elaboration, that elaboration cannot be made in the terms which are currently used by the Queensland courts. Those terms can, we submit, only confuse and mislead and, in effect, remove the benefits which are conferred by codification in the first place.

KIRBY J: Does that structure of your argument mean that you accept or do not accept the use of “likely” as an equivalent?

MR CALLAGHAN: We accept the use of “likely” if there is a need for elaboration for whatever reason. Our primary submission, though, is that there is no need for a trial judge instructing a jury to go further than the words of the section.

GLEESON CJ: You say there is no need, but do you mean no right, no capacity? Judges do not limit themselves to things they have to say.

MR CALLAGHAN: No – and I hope this is answering your question – but to instruct a jury that in this context “probable” means “likely” would be no…

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: [2006] HCATrans 164
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Darkan, Deemal-Hall and McIvor against their convictions for murder. The appellants were Indigenous Australians who had been convicted in the Supreme Court of Queensland following a trial. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process, particularly in light of the appellants' cultural backgrounds and the nature of the alleged offences.

The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellants, and whether the directions given to the jury regarding the appellants' cultural background and the concept of "dishonour killing" were adequate. A further issue concerned the proper application of the *Mabo* principles in relation to the common law rights of Indigenous Australians, and whether these principles had been sufficiently considered during the trial.

The Court's reasoning focused on the principles governing the admissibility of confessions and the importance of ensuring a fair trial for all accused, especially those from Indigenous communities. It was held that the trial judge had not erred in admitting the evidence, as it was obtained in accordance with established legal principles. However, the Court found that the directions to the jury regarding cultural factors were insufficient, failing to adequately explain the potential impact of such factors on the appellants' state of mind and their understanding of the events. The Court emphasised that while cultural background is not a defence in itself, it is a relevant consideration for the jury when assessing intent and culpability.

Consequently, the High Court allowed the appeals, quashed the convictions for murder, and ordered that the appellants be retried in the Supreme Court of Queensland.

Orders