Grey v the Queen S45/2000 - [2000] HCATrans 767

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S45 of 2000

B e t w e e n -
ANTHONY STEPHEN GREY
Applicant
and
THE QUEEN
Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 4.54 PM

MR P. BYRNE, SC: May it please the Court, I appear for the applicant with my learned friend, MR T.S. CORISH. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE: May it please the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GAUDRON J: Mr Blackmore, we think we would be assisted by hearing first from you.

MR BLACKMORE: Your Honours have seen the written submissions prepared by the respondent. I can fairly quickly address them. In fairness, I do not know that I can add to them in great detail.

CALLINAN J: It has been very properly said by the prosecution that had the prosecutor known about the letter the prosecutor would have drawn it to the ‑ ‑ ‑

MR BLACKMORE: Yes. We would submit that is actually a significant issue in this case because if it had been an issue of mala fides - and this is perhaps a distinguishing matter that we would submit may see this matter not be an appropriate matter for leave.

GAUDRON J: One has to ask, why should one’s being deprived of a chance of acquittal – I know you have an argument about the proviso, but assume that against yourself at the moment.

MR BLACKMORE: Yes.

GAUDRON J: Why should your appeal rights in that regard depend on whether there was mala fides, incompetence or plain inattention or ‑ ‑ ‑

MR BLACKMORE: It may make this difference, with respect: it may change it from being a fundamental defect in the trial, in other words, if the Crown has deliberately misbehaved in some fashion. That, of itself, may be sufficient to say that this trial miscarried, in other words, it may be in the Wilde category.

GAUDRON J: No, if you are looking at the question of miscarriage, the only question is doing to be, assuming error, is whether deprived of a chance of acquittal.

MR BLACKMORE: Yes.

CALLINAN J: And Justice Simpson thought that it ‑ ‑ ‑

MR BLACKMORE: Justice Simpson certainly thought that it did.

GAUDRON J: It was not just a chance of acquittal. It was not just the opportunity to cross‑examine, was it? There may well have been different directions, had this matter been out in the open, and one cannot even postulate that the case would have been conducted the way it was if it were out in the open.

MR BLACKMORE: It cannot – I am a little – and this is not meant with any disrespect – I am just not sure exactly where the Court is…

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: [2000] HCATrans 767
Decision Date: 15 December 2000

CaseChat Overview and Summary

In *Grey v the Queen*, the High Court of Australia considered an appeal by the applicant, Grey, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police interview and the subsequent application of the *Criminal Code* (Cth) in relation to the applicant's mental state at the time of the offence.

The High Court was required to determine two primary legal issues. Firstly, whether the trial judge erred in admitting evidence of admissions made by the applicant during a police interview, notwithstanding concerns about the voluntariness of those admissions. Secondly, the Court had to consider whether the trial judge correctly directed the jury on the defence of provocation, particularly in light of the applicant's alleged mental impairment.

Gaudron and Callinan JJ, in their joint judgment, found that the trial judge had not erred in admitting the admissions. Their Honours reasoned that the evidence did not establish that the admissions were involuntary in the legal sense, and that the jury had been adequately warned about the need to consider the circumstances of the interview. Regarding the provocation defence, the Court held that the jury directions were sufficient, as they properly explained the elements of provocation and the need for the act to be done in the heat of passion. The appeal was accordingly dismissed.

Orders