Hawkins v The Queen - [1993] HCATrans 375

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H4 of 1993
B e t w e e n -
ANDREW JOHN HAWKINS

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

DAWSON J TOOHEY J GAUDRON J

Hawkins

9/12/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 9.32 AM

MR A.G. MELICKt:.1 If it please the Court, I appear with my

learned friend, MR R.A. BROWN, for the applicant.
(instructed by C.K. Brown, Director, Legal Aid
Commission, (Tasmania))

MR D.J. BUGG:

May it please the Court, I appear with my

learned friend, MR J.N. PERKS, for the respondent.
(instructed by Director of Public Prosecutions
(Tasmania))

DAWSON J:

Mr Melick.

MR MELICK:

Thank you, Your Honour.

There are some

submissions which I understand have -

DAWSON J:

Mr Bugg, this application is not opposed, is that

right?

MR BUGG: That is correct, Your Honour. The respondent, in

fact, communicated with your Registry in Canberra
on - I have lost track of the days - I think it was
Wednesday of this week and indicated its position
in relation to this matter and also suggested that
should the Court be mindful of granting special
leave, that perhaps the application should be amended to include an additional ground to be considered by the Court.

TOOHEY J:

How can we do that unless the applicant himself

amends the application?

MR BUGG:

I am relying upon my learned friend in relation to

that. He has a copy of the letter and if the
applicant makes that application, of course, the
lateness of it would not be a matter of contention
from the respondent's point of view.

DAWSON J: Thank you. Yes, Mr Melick.

MR MELICK:

Thank you, Your Honour.

1ave

Q instructions

to make the application refe.c.;;.ed t JY my learned
friend although the applicant does abandon his
position in relation to the special leave point
enumerated at paragraph 15(e) of my affidavit, and
that relates to the application of the proviso.

TOOHEY J:	What page is that, Mr Melick?
MR MELICK:	Page 170 of the application book, Your Honour.

DAWSON J: Well now, is there a draft no :::e of appeal

somewhere?

TOOHEY J: Yes, there is, 1~

Hawkins

9/12/93

MR MELICK: There is, Your Honour. That follows at

pages 171 and 172. Ground 3 of the draft notice of
appeal refers to paragraph lS(e) but is also - - -

DAWSON J: So, it is ground 3 you are not pressing?

MR MELICK:

Your Honour, I will still leave ground 3 there

because if we succeed on paragraphs (a) to (d),
ground 3 still becomes relevant.

DAWSON J:

I see.

Now, what about the paragraph of the

letter to which Mr Bugg referred?

MR MELICK:

I would have to concede the matters raised

therein could -

GAUDRON J: It seems almost to be tied up in your first

ground, does it…

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 Hawkins v The Queen

Details

AGLC: Hawkins v The Queen [1993] HCATrans 375
Case: [1993] HCATrans 375
Decision Date

CaseChat Overview and Summary

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, Hawkins, sought to appeal against a decision of a lower court. The respondent, the Queen, was represented by counsel. The application was not opposed by the respondent, who indicated a willingness for the application to be amended to include an additional ground should special leave be granted.

The primary legal issue before the High Court was whether the applicant should be granted special leave to appeal. This involved considering the grounds of appeal, particularly those relating to the law of insanity and automatism. The applicant indicated an abandonment of one specific ground concerning the application of the proviso, but maintained that other grounds, including one tied to the application of the proviso, remained relevant if special leave were granted on other grounds. The Court also considered whether an additional ground, suggested by the respondent, could be incorporated into the appeal.

The applicant's counsel argued that the matters to be raised in the proposed appeal concerned significant questions of law relevant to the administration of justice throughout Australia, referencing historical difficulties with the law of insanity. The applicant submitted that the decision in *R v Falconer* had addressed one aspect of this problem, relating to non-insane automatism, and that the current appeal would address further complexities. The Court noted that the applicant was not bound by the draft notice of appeal if special leave were granted.

Orders