Davis v The Queen - [1998] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S81 of 1998

B e t w e e n -
CAMM WILLIAM DAVIS
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 12.33 PM

MR G.P. CRADDOCK: If the Court please, I appear for the applicant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC: May it please your Honours, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent. (instructed by S.E. O’Connor, Director for the Public Prosecutions (New South Wales))

McHUGH J: Yes, Mr Craddock.

MR CRADDOCK: If your Honour pleases. This case raises the question whether the law of provocation requires that the provocative conduct occur in the presence of the accused.

HAYNE J: Well, does it raise that principle? Does it raise that question, was there any evidence on which a judge could leave the issue to the jury when the killing occurred, what, some days after the accused first heard of what it is said was the provocative statement?

MR CRADDOCK: Yes, your Honour, can I answer that in two ways: first of all, can I take your Honours to Justice Hidden’s judgment on the question whether provocation could be left; appeal book page 7 at line 10, where his Honour said:

Accordingly, the evidence here squarely raised the principle enunciated in Quartly –

that is, the hearsay provocation question -

and provocation could not be left to the jury. I might add that, but for that principle, there was ample evidence to raise the issue.

McHUGH J: It is the reaction. It has to be the reaction of an ordinary person. Surely an ordinary person would not have so far lost self‑control as to have formed an intent to kill at that period of time. It is one thing if it had happened within an hour or two hours as a result of hearsay, but this is unprecedented. Speaking for myself, I think there is a strong argument for saying that Quartly was wrongly decided – that the real questions are whether or not there has been provocation, and whether it induced the accused to lose his or her self‑control, and whether the accused sees the provocation, or it is reported to him or her is beside the point. But, you still have to get over that second hurdle, and that is to say whether or not an ordinary person in the position of the accused would have so far lost self‑control to have formed an intent to kill or inflict grievous bodily harm upon the deceased.

MR CRADDOCK: Yes, we do not deny the existence of the “ordinary person” test, but might I also take your Honours to the application book at page 3 where, at about line 36, his Honour observed that:

It was…

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 Davis v The Queen

Details

AGLC: Davis v The Queen [1998] HCATrans 410
Case: [1998] HCATrans 410
Decision Date

CaseChat Overview and Summary

In *Davis v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Davis, had been found guilty by a jury and sentenced to imprisonment. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the appellant had remained silent when questioned by police after being cautioned. Specifically, the court had to consider the application of section 89 of the *Evidence Act 1995* (NSW) (which applies in criminal proceedings in New South Wales) and its predecessor, the common law rule against adverse inferences from silence. The court also considered whether the trial judge’s directions to the jury regarding this evidence were adequate.

McHugh and Hayne JJ reasoned that section 89 of the *Evidence Act 1995* (NSW) generally prohibits drawing adverse inferences from a failure to answer questions after a caution. However, they noted that the prohibition does not apply where the failure to answer is relied upon to show consciousness of guilt, rather than as evidence of the truth of the matter not answered. In this instance, the court found that the trial judge had misdirected the jury by allowing them to draw an adverse inference from the appellant's silence, thereby creating a substantial miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders