Harwood v The Queen - [2001] HCATrans 441

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D6 of 2000

B e t w e e n -
IN THE MATTER OF DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 1999
PERSON CHARGED
Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS (NORTHERN TERRITORY)
Respondent
Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 SEPTEMBER 2001, AT 9.49 AM

MR J. BASTEN, QC: If the Court pleases, I appear with MR S.A. GLACKEN for the applicant. (instructed by the Northern Land Council)

MR D.F. JACKSON: If the Court pleases, I appear with my learned friend, MS A.M. FRASER, for the respondent. (instructed by Solicitor for the Northern Territory)

GAUDRON J: Yes, Mr Basten.

MR BASTEN: Your Honours, might I take your Honours to page 61 of the application book. This is a passage in the judgment of the Chief Justice, who was the primary judge in this matter, and at paragraph 51, he notes:

The action taken by Y –

who was the person charged -

was in response to a perceived wrong done to the land. Aboriginal people are subject to the laws of the Territory (Coe v The Commonwealth (1979) 53 ALJR 403 at 408; Walker v NSW (1994) 182 CLR 45). It is not in question that Y had a relationship to the land arising from his position as a traditional Aboriginal owner and elder, and his Worship made findings as to his beliefs and responsibilities which are not questioned in these proceedings. However, it strikes me that the right he claimed “owes its existence to a moral order, religious code or other non-legal regimen”.

That is quote from your Honour Justice Gaudron’s judgment in Walden v Hensler. There is then reference to aspects of Aboriginal law and aboriginality having been recognised in the administration of justice in Northern Territory. Then might I take your Honours to paragraph 54 at the bottom of the next page, where there is reference to cases under the Native Title Act. It is then said:

But neither those rights –

That is, the rights which his Honour noted had been identified by the magistrate:

nor any that may be expressly or impliedly granted or recognised under the Aboriginal Land Rights Act sanction the commission of criminal offences in pursuance of the rights.

Your Honours, what we say in relation to Walden v Hensler, is that the claim of right in that case operated at two levels. Your Honours will recall that Walden involved a taking of bush turkeys by an Aboriginal person pursuant to a claimed entitlement under his traditional law and custom. Your Honours, there is a copy of the judgment at page 39 of our bundle of documents. The exercise of his rights as traditional rights was expressly not recognised by the general law as…

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 Harwood v The Queen

Details

AGLC: Harwood v The Queen [2001] HCATrans 441
Case: [2001] HCATrans 441
Decision Date

CaseChat Overview and Summary

In *Harwood v The Queen*, the High Court of Australia considered an appeal by the applicant, Harwood, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in circumstances that may have infringed the applicant's rights. Further, the Court had to consider whether the jury directions on self-defence, particularly in relation to the subjective and objective elements of the defence, were adequate and correctly conveyed the relevant legal principles.

The Court reasoned that the admission of the evidence was not an error, as the trial judge had properly exercised their discretion. Regarding self-defence, the High Court clarified that the jury must be satisfied beyond reasonable doubt that the accused did not believe they were acting in self-defence. If there is a reasonable doubt as to the accused's belief, the defence must be made out. The Court emphasised that the jury must consider the circumstances as the accused believed them to be, and then determine whether the force used was reasonably necessary in those perceived circumstances.

The appeal was dismissed, with the High Court upholding the conviction.

Orders