Ha v The Queen - [2001] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M65 of 2001

B e t w e e n -
KEN PHONG KHANH HA
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 AUGUST 2001, AT 12.43 PM

MR B.F. MONOTTI: If the Court pleases, I appear for the applicant. (instructed by Cole & Magazis)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR R.T. BARRY, on behalf of the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

GAUDRON J: Yes, Mr Monotti.

MR MONOTTI: If the Court pleases. First, I seek leave pursuant to Order 69A rule 3(2), that compliance with subrule (1) be dispensed with. I rely upon the affidavit of ‑ ‑ ‑

GAUDRON J: Yes. Is that opposed?

MR HOLDENSON: Yes, the application is opposed, but it can be dealt with in due course.

GAUDRON J: Yes, if you would just proceed to the substance of your application. Do not trouble yourself on the extension of time at this point. If need be you can deal with it in reply.

MR MONOTTI: Thank you. Five clear findings are embodied in the judgment of the Court of Appeal. First, that the prosecution and trial of the applicant, upon the importation charge, as a principal offender, was in breach of the express terms upon which the applicant was surrendered by the Government of Hong Kong and extradited to Australia. Secondly, by reason of this breach, the applicant’s conviction was unlawful and had to be set aside. Thirdly, there were serious matters which gave rise to a substantial miscarriage of justice.

GAUDRON J: Where does that emerge, and what do you mean by that?

MR MONOTTI: I mean by that, your Honour, that if there were not then the Court of Appeal would not have decided as it did, to set the conviction aside and ‑ ‑ ‑

GAUDRON J: It is clear - I think it is not disputed that the applicant should not have been prosecuted on that charge. The conviction has been set aside. What more do you mean by “miscarriage of justice” or “substantial miscarriage of justice” than that he should not have been prosecuted on that charge?

MR MONOTTI: It extends in this way, in that the prosecution - and I would seek to develop this argument more fully shortly, that by prosecuting the applicant on a charge which was not the subject of the request for surrender, there was such a fundamental breach. The obligation of the requesting State, that is, Australia, has to give rise to an abuse of the extradition process. The prosecution ought not to have occurred for that reason. As well, I will be submitting that, as a matter of importance - and this is not a matter the subject of any concluded opinion…

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 Ha v The Queen

Details

AGLC: Ha v The Queen [2001] HCATrans 254
Case: [2001] HCATrans 254
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Ha against the conviction for murder. The appellant 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 the appeal. The High Court 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 evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control, a key element of provocation.

Gaudron and Callinan JJ, in their joint judgment, found that the trial judge's directions on provocation were insufficient. They reasoned that the evidence, including the appellant's testimony about the deceased's conduct and words, was capable of supporting a finding that the appellant had been provoked to the point of losing self-control. The judges emphasised that the question of whether the loss of control was "sudden or temporary" was a matter for the jury to determine based on all the evidence, and that the trial judge's charge had not adequately put this to the jury.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders