Graham v The Queen - [2016] HCATrans 62

[2016] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B48 of 2015

B e t w e e n -
MARK JAMES GRAHAM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 12.28 PM

MR M.J. COPLEY, QC: If the Court pleases, I appear for the applicant. (instructed by Grigor Lawyers)

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

KIEFEL J: Yes, Mr Copley.

MR COPLEY: Your Honours, in this matter the principal issue at the trial was whether the Criminal Code provisions concerned with self‑defence had been excluded. If self‑defence could not be negatived, then the applicant’s conduct in wilfully discharging his weapon on two occasions would not have been unlawful. The error is to be found in application book 113 in paragraph [37] of the judgment of Justice Atkinson where she said that:

The Crown Prosecutor correctly pointed out that lack of consent was an essential element of the offence of assault. There was no further need for the issue to be addressed by the trial judge –

That is the sentence that we complain about. There was a further need. Whether an accused person has assaulted another person is always a potentially relevant issue where self‑defence is raised or relied upon, and it was rendered one of the real issues in this case by the manner in which the learned Crown Prosecutor addressed the jury in his closing address.

To demonstrate first of all the legal relevance of assault and consent to assault to self‑defence, could I just take your Honours to section 271 of the Code which is reproduced in the application book at page 148 where your Honours will see, for example, with respect to section 271, it provides for two forms of self‑defence; the first in the first subsection, the second in the second. But, irrespective of which subsection one wishes to engage – and both were in this case – each subsection is predicated upon there being an unlawful assault, which assault was not provoked. So, it is therefore necessary to have regard to what an assault is and, of course, that is defined in section 245 of the Criminal Code which appears at application book 148, relevantly:

A person . . . who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent –

So it is then necessary to look at what the learned prosecutor said about this matter, and the most telling submission against the applicant starts at the foot of page 23 of the application book – or, sorry, the second last paragraph on 23 where your Honours will see 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.

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Details

Case: [2016] HCATrans 62
Decision Date

CaseChat Overview and Summary

In *Graham v The Queen*, the High Court of Australia considered an appeal from the Court of Criminal Appeal of Queensland concerning the appellant's conviction for murder. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge erred in admitting evidence obtained from the appellant, which was alleged to have been obtained in contravention of his rights. Specifically, the court had to consider whether the evidence was improperly obtained and, if so, whether its admission nonetheless served the interests of justice. A further issue was whether the summing up by the trial judge to the jury was adequate and fair, particularly in relation to the directions on self-defence.

Kiefel and Nettle JJ found that the evidence in question had been obtained in contravention of the appellant's rights. However, they concluded that the trial judge had correctly exercised their discretion in admitting the evidence, as its probative value outweighed any prejudice to the appellant. The Court also held that the summing up, when read as a whole, provided sufficient guidance to the jury on the relevant legal principles, including the elements of murder and the defence of self-defence.

The appeal was accordingly dismissed.

Orders