Fleming v The Queen - [1998] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S59 of 1998

B e t w e e n -
MARK FLEMING
Appellant
and
THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 SEPTEMBER 1998, AT 10.21 AM

MR C.A. PORTER, QC: In this matter, if the Court please, I appear with MS S. KAUR-BAINS for the appellant. (instructed by Segal Litton & Chilton)

MR A.M. BLACKMORE: In this matter, I appear with my learned friend, MR R.D. ELLIS for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Parter.

MR PORTER: Your Honours, there are detailed written submissions in this matter which I take it that your Honours have read. If I may come straight to what we say is the fundamental of the appeal: in our submission, section 33 of the Criminal Procedure Act is meant to, in effect, secure for the person tried by a judge alone a proper observance by the judge of the various principles of law and warnings applicable in the same way - it is analogous to a summing up in the case of a trial by jury. It is not the same; it is analogous to.

The two safeguards are, firstly, that he has to include the principles of law applied and the findings of fact on which he relied. In our submission, subsection (3) means, in effect, that a warning is one of the principles of law that has to be included in his judgment. In our submission, it is quite inappropriate to say, “Although he never mentioned it in his judgment, he took the warning into account”. If that were permissible under section 33(3), then the section serves no purpose in that regard.

KIRBY J: Mr Porter, can you tell me - I remember in the Court of Criminal Appeal I sat in a case. It was an appeal from a decision of Justice Ireland sitting alone and I said something to the effect - and I think Justice Hunt referred to it in a later case - that it would not be sensible for a judge to have to go through the whole rigmarole that a judge does before a jury, but I am not sure that I paid enough attention to section 33.

MR PORTER: Your Honour, I am indebted to my learned friend the Crown. He seems to think, and I think he is right, that the - yes, the case is Winner 79A Crim R 528, when you were Acting Chief Justice ‑ ‑ ‑

KIRBY J: Yes, I will just have a look at that. I do not want to take you off your course, but I remember thinking about this problem the Crown ‑ ‑ ‑

MR PORTER: The passage your Honour is referring to is at page 531:

But I am far…

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 Fleming v The Queen

Details

AGLC: Fleming v The Queen [1998] HCATrans 309
Case: [1998] HCATrans 309
Decision Date

CaseChat Overview and Summary

In *Fleming v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Fleming, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, 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 determine if the judge's summing up sufficiently explained the concept of provocation as a partial defence to murder, and whether it adequately addressed the subjective and objective elements required for such a defence to be established.

The High Court, in a joint judgment, held that the trial judge's directions on provocation were inadequate. Their Honours explained that provocation, as a defence to murder, requires the jury to consider whether the act of the accused was a response to a sudden or temporary loss of self-control caused by something done or said by the deceased. Crucially, the jury must be satisfied that the provocation was such as would have caused an ordinary person to lose self-control and that the accused did, in fact, lose self-control. The judge's directions, in this instance, had not sufficiently articulated these elements, particularly the objective standard of the "ordinary person" and the requirement of a "sudden or temporary" loss of self-control.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Court of Criminal Appeal of New South Wales to determine whether a conviction for a lesser offence, such as manslaughter, should be substituted.

Orders