Dyson v The Queen - [1998] HCATrans 65

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A39 of 1997

B e t w e e n -
MICHAEL NEIL DYSON
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 9.37 AM

MR G.F. BARRETT, QC: May it please the Court, I appear for the applicant with my learned friend, MR R. LEMPENS. (instructed by
Camatta Lempens Pty Ltd)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear for the respondent with my learned friend, MS C.A. JUTTNER. (instructed by the Director of Public Prosecutions (South Australia))

BRENNAN CJ: Yes. Yes, Mr Barrett.

MR BARRETT: If the Court pleases. The applicant contends that the South Australian Court of Criminal Appeal has approached the interpretation of section 81(2) of our Summary Offences Act in an erroneous way, one which fails to reflect the high regard this Court has required States to pay to fundamental rights, freedoms and immunities, when interpreting legislation purporting to abrogate them, and in doing so it has rejected the reasoning of the New South Wales Court of Appeal in part, because the South Australian legislature has seen fit to expressly permit force to be used to compel submission to a medical examination, whereas in New South Wales legislation had not done so.

BRENNAN CJ: But is it not right to say that the South Australian court followed the earlier decision of that court in Franklin’s Case?

MR BARRETT: That is correct, with respect.

BRENNAN CJ: Franklin’s Case was brought on special leave to appeal to this Court and a Bench of five entertained the application and special leave was refused.

MR BARRETT: Yes.

BRENNAN CJ: Why should the same question now command a grant of special leave?

MR BARRETT: Partly because the High Court has expressed in more vigorous terms, if I may put it that way, the need to look for unambiguous words when fundamental rights are going to be abrogated.

BRENNAN CJ: That was a principle that was well established at the time of Franklin’s Case.

MR BARRETT: Well, may I suggest that the High Court has spoken in more recent years, more forcefully, in that regard. But, in any event, in my submission, the court did not have the benefit of other arguments that had found favour around the country. The New South Wales Court of Appeal was very detailed in its reasons for finding, at least by majority, that Franklin had been wrongly decided. The arguments, in my submission, that were followed by our Court of Criminal Appeal in this case, are flawed, and they strain the language that was used by the legislature. What the Court of Criminal Appeal has done here, in my submission, is to call in aid the express…

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 Dyson v The Queen

Details

AGLC: Dyson v The Queen [1998] HCATrans 65
Case: [1998] HCATrans 65
Decision Date

CaseChat Overview and Summary

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

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 court had to consider whether the judge's summing up had sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to make an ordinary person, in the position of the accused, act as the accused did, and that the provocation must be a question of fact for the jury to determine.

The High Court, in a joint judgment, held that the trial judge's directions on provocation were inadequate. Their Honours reasoned that the summing up had not clearly articulated the objective element of the provocation defence, namely, the reaction of an ordinary person. The court emphasised that the jury must be instructed that the provocation must be of a kind that could have induced an ordinary person to lose self-control and act in the way the accused did, and that this is a question of fact for the jury to assess. The failure to adequately explain this objective standard meant that the jury may not have properly considered the defence.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders