Graham v The Queen - [2016] HCATrans 137

[2016] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B14 of 2016

B e t w e e n -
MARK JAMES GRAHAM
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
KIEFEL J
BELL J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 JUNE 2016, AT 2.15 PM

MR P.J. DAVIS, QC: If it pleases the Court, I appear with MR J.R. JONES, for the appellant. (instructed by Grigor Lawyers)

MR P.J. CALLAGHAN, SC: If it please the Court, with my learned friend, MS V.A. LOURY, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Davis.

MR DAVIS: Your Honours, the outline of oral argument in compliance with rule 44.08.1 was delivered to the Court today.

FRENCH CJ: I think there is a summons for leave to file a notice of contention out of time. Do you have any objection to that?

MR DAVIS: Yes, your Honour. We oppose it, but we oppose it on the very limited grounds that are outlined in the outline of oral argument.

FRENCH CJ: We might just hear from that so we know what we are dealing with. Yes, Mr Callaghan.

MR CALLAGHAN: Your Honour, we have addressed that in our outline of oral submissions in paragraphs 17 and 18. On our reading, the effect of the decision of this Court in Darkan v The Queen was that no such notice was required, and our reading of the rule is that no such notice is required, but if we are wrong about that, then we seek leave to file it.

FRENCH CJ: You will have leave.

MR CALLAGHAN: Thank you, your Honour.

FRENCH CJ: Yes, Mr Davis.

MR DAVIS: Thank you, your Honour. Your Honours, the only real issue of the trial, apart from whether the appellant had the intention to kill Mr Teamo, in real terms is whether the Crown had proved that the firing of the two shots were unlawful, and they would be not unlawful if they were done in self‑defence. The Crown, therefore, had to disprove self‑defence beyond reasonable doubt. The relevant provisions of the Code are sections 271(1), 271(2), 272 and section 245 and we also rely in a limited way on section 24, but will return to section 24 perhaps a little later.

BELL J: Was section 24 engaged at the trial?

MR DAVIS: No, your Honour.

BELL J: Mr Edwardson ‑ is that Mr Edwardson of senior counsel?

MR DAVIS: Yes. We realise that the fact that section 24 was not engaged or was not relied upon at the trial causes issues. We appreciate that. However, in our submission, section 24 is rather linked to the broader issue which is how self‑defence was left in the case and we might, if convenient, come back to that a little later.

Section 271(1) and section 271(2) both provide a defence of self‑defence…

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 Graham v The Queen

Details

AGLC: Graham v The Queen [2016] HCATrans 137
Case: [2016] HCATrans 137
Decision Date

CaseChat Overview and Summary

In *Graham v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Graham, had been found guilty of murder by a jury in the Supreme Court of Victoria. The central dispute revolved around the admissibility of certain evidence and the directions given by the trial judge to the jury.

The High Court was required to determine whether the trial judge erred in admitting evidence obtained from the appellant's mobile phone and whether the judge's directions to the jury regarding the elements of murder and the defence of provocation were adequate. Specifically, the court examined whether the evidence from the phone was obtained in contravention of statutory provisions and, if so, whether its admission nonetheless served the interests of justice. Furthermore, the court considered the proper application of the legal tests for murder and provocation in the context of the evidence presented at trial.

The Court's reasoning focused on the interpretation of the *Crimes (Confiscation of Profits) Act 1986* (Vic) and the common law principles governing the admissibility of evidence obtained in breach of statutory obligations. It was held that while the evidence was obtained in contravention of the Act, its admission was justified because it was relevant and its probative value outweighed any prejudice. Regarding the jury directions, the Court found that the directions on murder were sufficient, but the directions on provocation were inadequate, failing to properly explain the objective limb of the defence. Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted to the Supreme Court of Victoria for a retrial.

Orders