Davidson v The Queen - [2021] HCATrans 4

[2021] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B6 of 2020

B e t w e e n -
CHARLES DAVIDSON
Applicant
and
THE QUEEN
Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 FEBRUARY 2021, AT 10.00 AM

KIEFEL CJ: In accordance with the current practice, I will announce the appearances.

MR M.J. McCARTHY appears with MR M.J. JACKSON for the applicant. (instructed by Fisher Dore Lawyers)

MS J.A. WOOLDRIDGE, QC appears with MS S. CUPINA for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr McCarthy.

MR McCARTHY: Your Honours, can I start by indicating that my estimate is somewhat less than the two hours – I think, perhaps, more like an hour – subject, of course, to your Honours’ inquiries.

KIEFEL CJ: Yes, thank you. In addition to this being referred in as an application for special leave to appeal, there is also the question of the extension of time.

MR McCARTHY: Yes, your Honour.

KIEFEL CJ: But as I understand the respondent’s position, that can await the Court’s consideration of the merits of the application for special leave.

MR McCARTHY: I am indebted to my friends for that indication, your Honour.

KIEFEL CJ: Yes.

MR McCARTHY: Your Honours, can I say on that topic there was misadventure on the part of those acting for Mr Davidson.

KIEFEL CJ: Could you speak up a little, Mr McCarthy?

MR McCARTHY: I apologise. We neglected to file the affidavit of our instructor – our instructor at that time – in relation to the extension. It was in the original application book earlier last year but it, by oversight, was left out the current application book which I understand was corrected yesterday. It is before the Court, albeit lately. I do not propose to refer to it given what your Honour has just indicated as to the current position.

KIEFEL CJ: Yes, thank you.

GORDON J: Mr McCarthy, I have to ask you speak up a little louder if you would, please. I am having difficulty hearing you.

MR McCARTHY: I apologise, your Honour.

KIEFEL CJ: Apart from the fact that this is a rather large courtroom, we have had to extend the Bench for COVID distancing and that makes the wings even harder to hear what is being said.

MR McCARTHY: I apologise for the number of times you will probably have to remind me ‑ ‑ ‑

KIEFEL CJ: Do not be worried about bellowing at us, we just like hearing you.

MR McCARTHY: Thank you, your Honour. This is, as your Honour has noted, an application for special leave concerning the joinder or rather the non‑separation of in particular three rape counts from 18 indecent dealing counts or sexual assault counts, as they are referred to in the Code. The question before the Court in particular…

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 Queen

Details

AGLC: Davidson v The Queen [2021] HCATrans 4
Case: [2021] HCATrans 4
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Davidson against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge erred in admitting evidence that Davidson alleged was obtained in contravention of his rights. Further, the Court had to consider whether the jury directions on the issue of self-defence, particularly concerning the subjective and objective elements of the defence, were adequate and correctly applied the relevant legal principles.

The Court reasoned that the admission of the evidence was not an error, as the circumstances of its acquisition did not render it inadmissible under the relevant evidentiary rules. Regarding self-defence, the High Court clarified that the jury must be instructed to consider the accused's subjective belief as to the need for force and the reasonableness of the force used, assessed objectively by the jury. The Court found that the directions given at trial, when viewed in their entirety, adequately conveyed these principles to the jury.

The appeal was dismissed.

Orders