Hanley v The Queen - [1995] HCATrans 59

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M79 of 1994

B e t w e e n -

RICHARD CHARLES HANLEY

Applicant

and
THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 2.26 PM

MS F.P. HAMPEL: May it please the Court, I appear on behalf of the applicant. (instructed by Tony Danos)

MR P.A COGHLAN: If it please the Court, I appear with my learned friend, MS K.E. JUDD, for the respondent. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ: Ms Hampel.

MS HAMPEL: The special leave point in this application may, at first sight, seem absurd but in fact, beneath it, there is a very serious point and that is, essentially, by reason of an unintended consequence on the amendments brought about to section 3 of Crimes Act which imposes the penalty for murder and the introduction of the Sentencing Act of 1991 of Victoria the maximum term which can be imposed in respect of a conviction for murder is two years imprisonment.

The reason that result flows, in my submission, is this: the penalty for murder in one the maximum term for which is not fixed by law. That is because neither subparagraph (a) or (b) of section 3 of the Crimes Act, which set out the two ways in which a penalty can be imposed, set an outer limit expressed in days, months or years. If I could take the Court to section 3 of the Crimes Act we see that the penalty for murder is:

(a) level 1 imprisonment; or
(b) imprisonment for such other term as is fixed by the court -
as the court determines.

Those last words “as the court determines” clearly differentiating between the decision to impose a term of level 1 imprisonment or such other term.

Now, level 1 imprisonment is defined in the Sentencing Act under the table set out to section 109 of that Act as life imprisonment. So in other words, the court sentencing a person for murder can either impose a sentence of life imprisonment under paragraph (a) of section 3 or such other term as is fixed by the court under paragraph (b) of section 3.

Neither of those terms, “life imprisonment” or the one under paragraph (b), are a fixed and defined and known in advance outer limit. As such, section 9 of the Sentencing Act which is, in effect ‑ ‑ ‑

DEANE J: Section 3(a) of the Crimes Act was in fact introduced by the Sentencing Act, was it not?

MS HAMPEL: Subparagraph (a) of section 3?

DEANE J: Yes.

MS HAMPEL: Yes, your Honour. Well, it was amended. Prior to that, there was still a two-level process for sentencing but before the Sentencing Act came in it said (a) was for…

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 Hanley v The Queen

Details

AGLC: Hanley v The Queen [1995] HCATrans 59
Case: [1995] HCATrans 59
Decision Date

CaseChat Overview and Summary

In *Hanley v The Queen*, the High Court of Australia considered an appeal by the applicant, Hanley, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the adequacy of the trial judge's directions to the jury concerning the defence of provocation.

The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence of the applicant's prior violent conduct and whether the jury directions on provocation adequately explained the subjective and objective elements of that defence, particularly in light of the evidence presented.

Deane and Gaudron JJ, in their joint judgment, found that the admission of the evidence of prior violent conduct was prejudicial and its probative value was outweighed by its potential to unfairly influence the jury. They further held that the directions on provocation were insufficient, failing to properly articulate that the jury must consider the subjective state of mind of the accused and whether a reasonable person, in the circumstances of the accused, would have reacted in the same way. The court emphasised that the defence of provocation requires an actual loss of self-control by the accused, which must be a response to a sudden or temporary loss of self-control, and that the jury must be properly instructed on these elements.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders