Dickson v The Queen - [2010] HCATrans 181

[2010] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M11 of 2009

B e t w e e n -
KEVIN JOHN DICKSON
Applicant
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, 27 JULY 2010, AT 10.19 AM

MR T.F. DANOS: If the Court pleases, I appear with MR J.E. McLOUGHLIN on behalf of the applicant. (instructed by Tony Danos Solicitor)

MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions)

FRENCH CJ: Yes, Mr Danos.

MR DANOS: If the Court pleases.

FRENCH CJ: Mr Danos, I note that we do not have any written response from you to the questions that the Court sent.

MR DANOS: No. That is largely because most of the matters that were raised – and I spoke with my learned friend, Mr Silbert, last Friday in relation to the matter and we discussed that matter and they indicated that they would be putting in a response that would deal with the matter. I understood the nature of the response that was being put in and we did not have any issue with those matters, your Honour.

HEYDON J: So you accept paragraph 6.18 of that document, do you?

MR DANOS: We do not take any issue with it, your Honour.

HEYDON J: What, in your understanding, are the provisions of the Criminal Code Act which provide that it is only:

property belonging “exclusively” to the Commonwealth

that is referred to?

MR DANOS: Unfortunately, your Honour, I do not have the Criminal Code Act here with me. I would need to look.

HAYNE J: It would be an unusual position for an applicant to adopt, Mr Danos. To say that a question raised by the Court which, if answered in favour of the applicant, would lead to the conclusion that the applicant was charged with an offence not known to the law was unarguable – that seems to be the position you are adopting – is at least unusual that an applicant would take that position. Let there be no doubt about it, the consequence of the issue that is raised, if it were resolved in the sense opposite to that for which the respondent contended, would be section 109 would be engaged, the offence charged against your client would be an offence, I would have thought, not available to be charged because there would be no offence against a law of Victoria.

MR DANOS: Your Honour, at the time of the trial this issue was looked into. Unfortunately, it is not part of the appeal book, part of the transcript that was discussion that had left out of the appeal book, your Honours, and I went back and looked at that 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.

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Details

Case: [2010] HCATrans 181
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