Hamilton (a pseudonym) v The Queen - [2021] HCATrans 19

[2021] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S146 of 2020

B e t w e e n -
HAMILTON (A PSEUDONYM)
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 2021, AT 1.58 PM

GORDON J: Consistent with the usual practice the High Court has adopted in relation to COVID, I will announce the appearances, if I may.

MR H.K. DHANJI, SC appears with MR D. R. RANDLE for the applicant. (instructed by George Sten & Co)

MS T.L. SMITH, SC appears with MS B.K. BAKER for the respondent. (instructed by Director of Public Prosecutions (NSW))

GORDON J: Ms Smith, we thought we might hear from you if that is possible. Thank you.

MS SMITH: Your Honours, the respondent contends that there is no merit in either ground of appeal, nor is there any general question of principle that arises. The first ground of appeal concerns the proper constructions of the directions given in this unusual case. It is common ground between the parties that there is no universal rule that the absence of an anti‑tendency direction will give rise to a miscarriage of justice in every case where there are multiple complainants. The issue between the parties is whether the CCA was correct to conclude that in the circumstances of this case and in view of the cases run by the Crown and the case run by the defence and the particular directions that were given in this case, there was not a sufficiently material risk of tendency reasoning such as to give rise to a miscarriage of justice.

GORDON J: Can I ask a number of questions?

MS SMITH: Of course, your Honour.

GORDON J: It seemed to me on the review of the directions given that there was an anti‑tendency direction given in respect of the uncharged acts. There was an anti‑tendency direction given in respect of the evidence led to rebut the good character evidence that was adduced by the applicant. There was a Markuleski direction which seemed to have one aspect to it in the sense that it had a direction about separate consideration of each count on the indictment, but did not have what I will call the second limb to that direction, then a direction there be separate consideration of each count on indictment – so the first bit was fine – but failed to say to consider that count only by the reference to the evidence that applied to it. Is that not a problem?

MS SMITH: Your Honours, the Crown would submit it is not a problem in this particular case because of the subsequent directions that were given, namely in particular the Murray direction that was given. When one considers that second limb or component that your Honour has referred to in the context of this case, you can see…

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 Hamilton (a pseudonym) v The Queen

Details

AGLC: Hamilton (a pseudonym) v The Queen [2021] HCATrans 19
Case: [2021] HCATrans 19
Decision Date

CaseChat Overview and Summary

The case of *Hamilton (a pseudonym) v The Queen* concerned an appeal to the Supreme Court of Queensland against a conviction for an offence. The appellant, Hamilton, sought to challenge the verdict reached in the lower court.

The central legal issue before the Supreme Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to consider whether the evidence presented at trial was capable of supporting a finding of provocation, and if so, whether the jury had been properly instructed on the elements of this defence.

Justice Jedelman, in delivering the judgment, analysed the evidence in light of the legal requirements for provocation. The court considered the objective and subjective elements of provocation, namely whether the conduct of the deceased was such as to cause an ordinary person to lose self-control, and whether the appellant did in fact lose self-control as a result of that conduct. The court found that the evidence, when viewed in its entirety, did not establish a sufficient evidentiary basis to warrant a direction on provocation, and therefore, the trial judge had not erred in failing to provide such a direction.

The appeal was accordingly dismissed.

Orders