Ferguson v The Queen [2011] HCATrans 62 - [2011] HCATrans 62

[2011] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M103 of 2009

B e t w e e n -
IAN NORMAN ERIC FERGUSON
Applicant
and
THE QUEEN
Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 10.26 AM

MR C. MARSHALL: If the Court pleases, I appear as the solicitor on the record for Mr Ferguson, the applicant. (instructed by C Marshall & Associates)

MR J.D. McARDLE, QC: I appear with my learned friend, MS S.B. McNICOL, for the respondent, if the Court pleases. (instructed by Solicitor for Public Prosecutions)

HEYDON J: You oppose this application for an adjournment?

MR McARDLE: Your Honours, we are put in a very difficult position. What we are hoping to do was to persuade the Court to have the matter determined on the papers. Now, there are two affidavits in support of the application for the adjournment. Yesterday’s one really would not allow anyone, it is submitted, to have any confidence that the situation was going to change between now and say, for example, the next special leave date.

HEYDON J: Yes.

MR McARDLE: Now, today’s affidavit I think is a little different insofar as there is some promise of funding, although we would say it is remote and if it was feasible it probably would have been attended to before today.

HEYDON J: Just for the sake of formal rectitude, I should ask, Mr Marshall, you read, do you, the affidavit dated 9 March and the affidavit which was sworn on 11 March?

MR MARSHALL: Yes, your Honour.

HEYDON J: Yes, thank you. Sorry, Mr McArdle, please continue.

MR McARDLE: Thank you, your Honour. So the other thing, your Honours, that we think we should point out to you, of course, is that these offences are said to have occurred almost 10 years ago. The trial in question was heard in 2005, the appeal in I think 2008 or thereabouts; time is pretty much on the wing. In any event, our primary submission was to invite the Court to order that the matter be determined on the papers.

HEYDON J: Yes. Mr Marshall, who is the solicitor for the applicant, seeks an adjournment of this special leave application. The principal basis for the adjournment is that it is difficult to obtain the services of counsel for financial reasons and the affidavit reveals that there are some prospects of obtaining money by the measures it outlines. Mr McArdle, strictly speaking, does not oppose the application. He would wish it to be determined on the papers with only either the present members of the Bench or any other members of the Bench in future. We think the contentions are sufficiently finely balanced to make it a case where oral argument would be of some assistance and, tempting though Mr McArdle’s proposal is, I am afraid…

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: [2011] HCATrans 62
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by the applicant, Ferguson, against the decision of the Queensland Court of Appeal. The applicant had been convicted of a number of offences, including murder, and sentenced to life imprisonment. The application for special leave to appeal arose from the applicant's contention that the trial judge had erred in law by failing to direct the jury adequately on the issue of self-defence.

The central legal issue before the High Court was whether the trial judge's directions to the jury regarding the elements of self-defence, as codified in the *Criminal Code* (Qld), were sufficient to ensure the jury properly understood and applied the relevant legal principles. Specifically, the applicant argued that the directions failed to adequately explain the subjective and objective components of the defence, particularly in relation to the belief of the accused as to the need to use force and the reasonableness of that force.

The High Court, comprising Heydon and Crennan JJ, considered the principles governing directions on self-defence. Their Honours noted that a proper direction must clearly articulate that the accused must have subjectively believed that it was necessary to use force, and that the amount of force used must have been reasonably necessary in the circumstances as the accused perceived them. The Court examined the specific wording of the trial judge's directions in light of these principles and the evidence presented at trial.

The application for special leave to appeal was dismissed.

Orders