Dickson v The Queen - [2010] HCATrans 222

[2010] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M11 of 2009
No M102 of 2010

B e t w e e n -
KEVIN JOHN DICKSON
Applicant/Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 AUGUST 2010, AT 10.17 AM

MR T.F. DANOS: If the Court pleases, I appear with my learned junior, MR P.D. HERZFELD, for the appellant in matter M102 of 2010 and the applicant in M11 of 2009. (instructed by Tony Danos Solicitor)

MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned junior, MR B.L. SONNET, for the respondent in both matters. (instructed by Solicitor for Public Prosecutions (Vic))

MR S.J. GAGELER, SC, Solicitor‑General for the Commonwealth of Australia: If the Court pleases, I appear with MS K.C. MORGAN for the Attorney‑General of the Commonwealth intervening under section 78A of the Judiciary Act in the appeal, matter M102 of 2010. (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, on the instructions of the Attorney‑General for South Australia intervening in the appeal, the same number as the Solicitor‑General for the Commonwealth just gave to the Court. (instructed by Crown Solicitor (SA))

FRENCH CJ: Yes, Mr Danos.

MR DANOS: If the Court pleases, perhaps if I can start with what might be described as a housekeeping matter. Your Honours will have observed that with our submissions in relation to the appeal in annexure 2 we have amended slightly the notice of appeal.

FRENCH CJ: Is that proposed amendment opposed?

MR DANOS: I do not believe so, your Honour, at least ‑ ‑ ‑

MR SILBERT: No, your Honour.

FRENCH CJ: Yes. You have leave to amend accordingly.

MR DANOS: If the Court pleases. That being so, your Honours, it would certainly seem that the constitutional points ought be dealt with ‑ ‑ ‑

FRENCH CJ: Yes, we will hear you on the appeal argument now.

MR DANOS: Should I confine myself to that at this stage?

FRENCH CJ: Yes, if you would.

MR DANOS: In relation to the constitutional points and particularly under the operation of section 109, as our submissions have outlined, we have indicated that both in relation to conspiracy and in relation to the theft provisions that there is, we would submit, a conflict. If I can turn to the conspiracy aspect first and in relation to that – I mean, obviously without seeking to repeat what is in our submissions, can I simply add some following points. Firstly, the conspiracies section, section 11, forms part of what is described as the Criminal Code. As we understand a code it is in its very nature seeking to bring together all…

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 Dickson v The Queen

Details

AGLC: Dickson v The Queen [2010] HCATrans 222
Case: [2010] HCATrans 222
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Dickson, against his 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 had erred in admitting evidence obtained from the applicant's mobile phone, which had been seized by police. Further, the Court had to consider whether the trial judge had correctly directed the jury on the issue of self-defence, particularly in relation to the applicant's subjective belief as to the necessity of using force.

The Court held that the evidence from the mobile phone was lawfully obtained and therefore admissible. Regarding the self-defence direction, the majority of the Court found that the trial judge's directions were adequate, having properly conveyed to the jury that the assessment of self-defence involved both an objective and a subjective element. The jury was required to consider whether the applicant genuinely believed that the force he used was necessary, and if so, whether that belief was reasonable in the circumstances.

The appeal was dismissed.

Orders