Dawson v The Queen - [2022] HCATrans 54

[2022] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S102 of 2021

B e t w e e n -
CHRISTOPHER DAWSON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 9.35 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR P.R. BOULTEN, SC appears with MS S. PALANIAPPAN for the applicant. (instructed by Greg Walsh & Co Solicitors)

MS S.C. DOWLING, SC appears with MS E.C. BLIZARD for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

GAGELER J: Before the argument proceeds, it is appropriate that I draw attention to the fact that there is in place an interim non‑publication order under section 77RH of the Judiciary Act 1903. The terms of that order are that there is to be no publication of the contents of the written or oral submissions of the parties on the application for special leave to appeal. The terms of the order do not prohibit publication of the fact of the application, the outcome of the application or anything said by the Court when pronouncing that outcome. The interim order is expressed to remain in place until 4.00 pm today.

Whatever the outcome of the application for special leave this morning, there will be a need to consider whether an ongoing order should be made under section 77RE of the Judiciary Act. That is something I will address with the parties immediately at the conclusion of the application this morning and if necessary – but only if necessary – I would propose to relist the matter before me at 3.30 pm to determine the precise form of that order. Mr Boulten.

MR BOULTEN: If the Court pleases. The application involves ‑ ‑ ‑

GAGELER J: Mr Boulten has frozen and now dropped out. The Court will adjourn momentarily to re‑establish connection.

AT 9.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 9:39 AM:

GAGELER J: I understand that Mr Boulten has rejoined by telephone. Can you hear me, Mr Boulten?

MR BOULTEN: Yes, I can, your Honour. Thank you for your patience.

GAGELER J: Please proceed, Mr Boulten.

MR BOULTEN: The application involves a podcast which the primary judge, endorsed on appeal, found to be the most egregious example of media interference with a criminal trial process which the court had had to consider. This is a singular degree of interference with the applicant’s right to a fair trial and, in particular, it involved a campaign to undermine his presumption of innocence. It was a campaign which was highly successful in the sense that it was published to about a million people in the Sydney region.

We say that the degree of interference with the applicant’s trial process is exceptional, not just because of…

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 Dawson v The Queen

Details

AGLC: Dawson v The Queen [2022] HCATrans 54
Case: [2022] HCATrans 54
Decision Date

CaseChat Overview and Summary

In *Dawson v The Queen*, the High Court of Australia considered an appeal by the applicant, Dawson, against his conviction for murder. The central dispute concerned the admissibility of certain evidence and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the jury directions on self-defence were adequate. Specifically, the court had to consider whether the evidence of prior convictions was unfairly prejudicial and whether the jury had been properly instructed on the subjective and objective elements of self-defence, including the applicant's belief as to the necessity of using force and the reasonableness of that force in the circumstances as he perceived them.

Gageler and Gordon JJ found that the admission of the applicant's prior convictions was unfairly prejudicial and that the trial judge's directions on self-defence were insufficient. Their Honours reasoned that the jury should not have been exposed to evidence that was not directly relevant to the charge of murder and that the directions on self-defence failed to adequately convey the legal requirements for its successful invocation. The court emphasised that the assessment of self-defence must be based on the circumstances as the accused honestly believed them to be, and that the force used must be a reasonable response to those perceived circumstances.

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

Orders