IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P29 of 2015
B e t w e e n -
GREGORY JOHN DUNN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
KIEFEL J
GORDON J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO PERTH
ON FRIDAY, 12 FEBRUARY 2016, AT 11.46 AM
Copyright in the High Court of Australia
MR S.B. WATTERS: If it please your Honours, together with MR C.M. TOWNSEND, I appear for the appellant. (instructed by Lewis Blyth & Hooper)
MR A.L. TROY: I appear for the respondent. (instructed by Director of Public Prosecutions (Cth))
KIEFEL J: Yes, Mr Watters.
MR WATTERS: Your Honours, in regard to ground 1, the issue of the proviso, what we effectively contend is that contrary to what the plurality of this Court gave as imprimatur in Lindsay, we say in the court below – or we respectfully contend that the court was somewhat Delphic with regard to the possible application of the proviso and the way that it was dealt with at the hearing, such that we say for the reasons we have advanced that this is a matter where special leave ought to be granted to the applicant with regard to ground 1 of his appeal notice. Your Honours, in regard to ‑ ‑ ‑
KIEFEL J: I am sorry, just so I am clear about this, are you limiting your argument here to the proviso or are you taking up the other special leave points?
MR WATTERS: No, I would seek to address your Honours briefly, if I may, verbally on the three grounds at page 525 of the second application book.
GORDON J: Do you wish to say anything else about ground 1 dealing with the proviso?
MR WATTERS: No, your Honours, I am content to rest on what was set out in our written submissions. I do not think I could advance those any further in the sense that we say – and I do not wish to be repetitive – that this is a case where it was not raised fairly and squarely, if I can use those words. I think that is what in this Court in the majority referred to in Lindsay. It was not raised fairly and squarely with the applicant at the hearing of the appeal. When the court below turned to the respondent, there were some brief submissions, the proviso was not raised. When the court returned to the appellant, there were strictly speaking no matters of reply to raise. I appreciate the Court does not have before it the transcript of the hearing. There is some summary of it in the documents contained at the back of the second application book.
GORDON J: Is not the position that Justice Buss said that the applicant would have the position in reply to deal with the proviso and that the applicant’s counsel did not take up that…
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- AGLC
- Dunn v The Queen [2016] HCATrans 19
- Case
- [2016] HCATrans 19
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the question was whether the judge's summing up had sufficiently explained to the jury that they were required to consider whether the provocation was such as to cause a reasonable person to lose self-control, and if so, whether Dunn had in fact lost self-control.
Kiefel and Gordon JJ found that the trial judge's directions on provocation were inadequate. Their Honours explained that the defence of provocation requires a two-stage test: first, whether the provocation was sufficient to cause a reasonable person to lose self-control, and second, whether the accused person actually lost self-control. The judge's summing up had failed to clearly articulate this two-stage test, particularly the objective element of whether a reasonable person would have lost self-control. This omission meant the jury may not have properly considered all the elements of the defence.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.
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