Dunn v The Queen - [2016] HCATrans 19

[2016] HCATrans 019

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

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…

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 Dunn v The Queen

Details

AGLC: Dunn v The Queen [2016] HCATrans 19
Case: [2016] HCATrans 19
Decision Date

CaseChat Overview and Summary

The case of *Dunn v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Dunn, had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed his appeal. Dunn then sought and was granted special leave to appeal to the High Court.

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.

Orders