Hart v The Queen

Case [2003] WASCA 213


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   HART -v- THE QUEEN [2003] WASCA 213

CORAM:   STEYTLER J

MCLURE J
PULLIN J

HEARD:   11 AUGUST 2003

DELIVERED          :   9 SEPTEMBER 2003

FILE NO/S:   CCA 115 of 2002

CCA 111 of 2003

BETWEEN:   NORMAN FREDERICK HART

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether trial Judge erred in failing to leave issue of provocation to jury - Whether hearsay evidence wrongly left to jury - Relationship evidence - Whether trial Judge erred by failing to leave the question of accident to jury - Whether defence counsel failed to act on vital evidence

Criminal law - Murder - Provocation - Definition of provocation - Whether action of the deceased amounted to a wrongful act or insult - Whether act or insult has to emanate from victim - Concept of ordinary person - Whether proportionality is required between the act and the provocation leading to loss of self­control - Whether act committed before there was time for passion to cool - Who bears the onus of proof - Sexual misconduct as provocation - When should provocation be left to jury

Criminal law and procedure - Appeal against sentence - Whether sentence manifestly excessive given applicant's age, antecedents and circumstances of commission of crime - What is "worst category" of offence

Legislation:

Crimes Act 1900 (NSW), s 23

Criminal Code (Qld), s 268, s 304
Criminal Code (Tas), s 160
Criminal Code (WA), s 23, s 245, s 281, s 283, s 570D(2)

Sentencing Act 1995 (WA), s 90

Result:

Application for leave to appeal against sentence granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr D Dempster

Solicitors:

Applicant:     In person

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29

Bedelph v The Queen [1980] Tas R 23

Bensegger v The Queen [1979] WAR 65

Censori v The Queen [1983] WAR 89

Croft v The Queen [1981] 1 NSWLR 126

Director of Public Prosecutions v Leonboyer (1999) 109 A Crim R 168

Dunstan v The Queen (1931) 33 WALR 118

Green v The Queen (1997) 191 CLR 334

Holmes v Director of Public Prosecutions [1946] AC 588

Hutton v The Queen [1986] Tas R 24

Johnson v The Queen (1976) 136 CLR 619

Kaporonovski v The Queen (1975) 133 CLR 209

Kirkham v The Queen (1837) 8 C & P 115

Lee Chun‑Chuen v The Queen [1963] AC 220

Mancini v Director of Public Prosecutions [1942] AC 1

Masciantonio v The Queen (1995) 183 CLR 58

Mehemet Ali v The Queen (1957) 59 WALR 28

Moffa v The Queen (1977) 138 CLR 601

Packett v The Queen (1937) 58 CLR 190

Parker v The Queen (1963) 111 CLR 610

Pearson (1835) 2 Lew CC 144; 168 ER 1133

R v Buttigieg (1993) 69 A Crim R 21

R v Callope…

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Details
AGLC
Hart v The Queen [2003] WASCA 213
Case
[2003] WASCA 213
Decision Date

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Hart, against his conviction and sentence for the murder of his de facto wife, the deceased. The case was heard in the High Court of Australia. Hart was convicted of murder and sentenced to life imprisonment with a non-parole period of 18 years. Hart appealed against his conviction and sentence on various grounds, including the trial judge's failure to leave the issue of provocation to the jury, the admissibility of hearsay evidence, the relevance of relationship evidence, and the trial judge's failure to leave the question of accident to the jury.

The legal issues before the court were whether the trial judge erred in failing to leave the issue of provocation to the jury, whether hearsay evidence was wrongly left to the jury, whether the trial judge erred by failing to leave the question of accident to the jury, and whether defence counsel failed to act on vital evidence. The court also had to consider the appropriate definition of provocation, the relationship between the act and the provocation, and the proportionality between the act and the provocation leading to loss of self-control. The court further considered whether the act was committed before there was time for passion to cool, who bears the onus of proof, and whether sexual misconduct can amount to provocation. The court also had to consider whether provocation should be left to the jury and whether the sentence was manifestly excessive.

The court found that the trial judge erred in failing to leave the issue of provocation to the jury, and that the defence counsel failed to act on vital evidence. The court held that provocation can arise from the conduct of a third party, and that the act or insult does not have to emanate from the victim. The court also held that the concept of an ordinary person is objective and that proportionality is required between the act and the provocation leading to loss of self-control. The court found that the act was committed before there was time for passion to cool, and that the onus of proof is on the prosecution to exclude provocation beyond reasonable doubt. The court held that sexual misconduct can amount to provocation, but only if it is a sufficient cause of provocation. The court further held that provocation should be left to the jury if there is evidence that could support a finding of provocation. Finally, the court found that the sentence was not manifestly excessive given the appellant's age, antecedents, and the circumstances of the commission of the crime.

The High Court allowed the appeal against conviction and ordered a new trial. The Court also varied the sentence to life imprisonment with a non-parole period of 15 years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MCLURE J

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Ratio Decidendi

Legal Principle Established

Established by: MCLURE J

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