Davidson v The King - [2023] HCATrans 31

[2023] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2022

B e t w e e n -
SAMUEL WILLIAM DAVIDSON
Applicant
and
THE KING
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 17 MARCH 2023, AT 9.30 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.J. ODGERS, SC appears for the applicant. (instructed by Legal Aid NSW)

MS H.R. ROBERTS, SC appears with MR D.T.J. SCULLY for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honour. The applicant seeks an order for an extension of time in this matter. It was about a week late, I understand.

KIEFEL CJ: Is that opposed, Ms Roberts?

MS ROBERTS: No, your Honour.

KIEFEL CJ: Yes, you have that extension, Mr Odgers.

MR ODGERS: Thank you, your Honour. Your Honours, the first question of general importance raised by this application concerns the totality principle. Justice Adams considered that the extent of the accumulation in this case should be nine and a half years, where the most severe sentence for an individual offence was 10 and a half years, so it went from 10 and a half years to 20 years. While Justice Brereton considered that the accumulation should be seven years where the most severe sentence for an individual offence was nine, so it went from nine to 16.

Justice Brereton, at page 100 of the application book, your Honours, referred to South Australian authority which focused on the extent to which the purposes of sentencing for all the offences will be met by the most severe individual sentence, and those purposes, of course, are the purposes referred to by the High Court in Veen (No 2) and reflected in section 3A of the New South Wales Sentencing Act, which is in the application book – but I will not take you to those purposes, they are well known and well understood.

To provide some explanation of how Justice Brereton understood that you would apply that approach as adopted in South Australia, I will give a few examples. Take the purposes of retribution and denunciation for the offences. They would have to be assessed in circumstances where, as here, the offender’s culpability for the offences is the same – although the harm resulting is obviously different – but where there may not be the same demand for retribution and denunciation by way of accumulation, where, as here, the offender will suffer significant retribution and denunciation for the most serious individual offence – bearing in mind that her Honour Justice Adams thought 10 and a half years’ imprisonment was appropriate for the most serious individual offence.

It will also be a material consideration that the severity of each accumulating increment is understood 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.

Continue reading Davidson v The King

Details

AGLC: Davidson v The King [2023] HCATrans 31
Case: [2023] HCATrans 31
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Davidson v The King*, brought by the applicant, Davidson, against the respondent, The King. The dispute concerned the applicant's conviction for murder, following a trial in the Supreme Court of Queensland. The applicant had sought to appeal his conviction to the Court of Appeal of Queensland, but that appeal was dismissed. The High Court granted special leave to appeal from the decision of the Court of Appeal.

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 applicant argued that the jury should have been instructed that a "sudden or temporary loss of self-control" was not a necessary element of the defence of provocation, and that the defence could be established even if the act causing death was not done in the heat of passion.

The High Court, comprising Kiefel CJ and Gordon J, allowed the appeal. Their Honours held that the trial judge's directions to the jury on provocation were inadequate and likely to mislead. The Court reaffirmed that the defence of provocation does not require proof of a "sudden or temporary loss of self-control" as a distinct element. Instead, the focus is on whether the act causing death was a response to a provocation that caused the accused to lose self-control, and whether a reasonable person in the circumstances of the accused might have reacted in the same or a similar way. The Court found that the jury's verdict was unsafe and unsatisfactory due to the misdirection.

The High Court ordered that the appeal be allowed, the conviction be quashed, and that the applicant be granted a new trial in the Supreme Court of Queensland.

Orders