AT CANBERRA ON THURSDAY, 12 DECEMBER 1991, AT 11.06 AM
Copyright in the High Court of Australia
MR P.J. HIDDEN, QC:
May it please the Court, I appear with
my learned friend, MR P. BYRNE, for the appellant.
(instructed by J.J. Cullen & Associates)
MR R.O. BLANCH, QC:
May it please the Court, I appear with
my learned friend, MR P.G. BERMAN for the Crown.
(instructed by the Director of Public Prosecutions
(New South Wales))
MASON CJ: Yes.
MR HIDDEN:
Your Honours, this is an appeal brought by
special leave granted by this Court on 6 August of
this year against a decision of the Court of
Criminal Appeal of New South Wales dismissing the
appeal of the appellant against his conviction on a
charge of attempted murder.
We have prepared a
brief outline of argument, Your Honours. Might we
hand that up.
MASON CJ:
Thank you.
TOOHEY J:
Mr Hidden, could I just ask you in the light of the outline of argument, the grant of special leave
was confined to a ground described and enumerated 2
in the draft notice of appeal, which is not before
us and I do not know what it said, but the notice
of appeal raises two apparently disparate matters:
identification and fresh evidence.
MR HIDDEN: Correct.
TOOHEY J:
Do they both arise out of the ground 2 in the
draft notice of appeal?
MR HIDDEN:
No, Your Honour. Perhaps if I could just go to
the notice of appeal Your Honour is - - -
MASON CJ: It is the wrong notice of appeal, is it not? It
is dated 5 October, from recollection, whereas the
grant of special leave refers to a document dated
12 October, I think.
MR HIDDEN:
I am sorry.
Would Your Honours bear with me a
moment?
MASON CJ: That was my impression when I looked at it.
MR HIDDEN:
Your Honours, I am sorry, I cannot explain that.
MASON CJ: Yes, well it is dated 4 October 1991, and we do
not know from the papers what ground 2 was in the
notice of appeal filed on 12 October 1991.
TOOHEY J: In any event, the outline of argument is
restricted to the question of identification, so we
are not concerned with the fresh evidence point.
Domican(2)
2
12/12/91
MR HIDDEN:
Yes, that is so, Your Honour.
May I say,
Your Honours, I am unable to explain that
situation, but it was certainly our understanding
that the draft notice of appeal filed ab initio was
in the form of the one which bears the date
4 October 1991, and that it was, indeed, the second
ground of that draft notice…
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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AGLC
Domican v The Queen [1991] HCATrans 357
Case
[1991] HCATrans 357
Decision Date
CaseChat Overview and Summary
This matter concerns an appeal by Thomas Christopher Domican to the High Court of Australia against a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had dismissed Domican's appeal against his conviction for attempted murder. Special leave to appeal to the High Court had been granted.
The legal issue before the High Court, as confined by the grant of special leave and the outline of argument, was solely concerned with the question of identification. The Crown's case against the appellant rested on three categories of evidence: the testimony of an alleged accomplice (whose name was suppressed), admissions allegedly made by the appellant to two prisoners while in custody, and the identification of the appellant as the shooter. The identification evidence primarily stemmed from the testimony of Mrs Kathleen Flannery, the wife of the victim, Christopher Flannery, who had since disappeared.
The Court was required to consider the grounds of appeal relating to identification. The evidence presented at trial included Mrs Flannery's account of the events on the evening of 27 January 1985, when she and her husband returned home to find another car parked on their driveway. The Crown also presented evidence of sightings of the appellant before and after the incident, which was said to corroborate Mrs Flannery's identification. The appellant's conviction was based on the jury's acceptance of this evidence.