Hayward v The Queen - [2021] HCATrans 129

[2021] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B10 of 2021

B e t w e e n -
JAMIE MARK HAYWARD
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY AND MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 13 AUGUST 2021, AT 12.29 PM

MS C.L. MORGAN appears with MS A.R. HUGHES for the applicant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC appears with MS C.N. MARCO for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: Yes, Ms Morgan.

MS MORGAN: Your Honours, this is an issue which is perhaps a narrow one but of sufficient general importance to justify a grant of special leave. I note that the application for extension of time has been made. The application was made outside the time limit and the reasons for this are set out in the affidavits of the applicant and of Ms Power…..Legal Aid. I cannot advance those reasons any further other than to say that this is an important question of law and it is the first time that the directions relating to indecent assault have been considered by this Court.

The current approach intrudes upon the role of the jury and there is a need for this Court to correct it. We do not say that the trial judge or the Court of Appeal misapplied the law as it is currently understood to be in Queensland. We say that the current approach is wrong in principle and this Court should correct it.

STEWARD J: Ms Morgan, can I ask a question? Can you help me understand how, as a factual proposition, is there a difference between your new intention proposition and the defence of mistake in the circumstances of this case?

MS MORGAN: Your Honour, we say that the intention, that is the intention that attaches to an assault under the Criminal Code, an intentional application of force or a touching, in the circumstances of a case of indecent assault what the prosecution is to try to prove is that there was an intentional application of force in circumstances that were objectively indecent.

The focus in this case on the excuse or proposition that the assault was not unlawful because there was an honest and reasonable but mistaken belief on the part of the defendant perhaps obscures the real issues or did indeed obscure the real issue and that was that the Crown was required to prove that there was an intentional application of force that was objectively indecent.

So, the erroneous approach of both defence counsel and the trial judge in this case led to a situation where the Crown was in fact not required to prove something that it was, as a matter of law, required to prove.

STEWARD J: All right, thank you.

MS MORGAN: Your Honours, a second reason why…

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 Hayward v The Queen

Details

AGLC: Hayward v The Queen [2021] HCATrans 129
Case: [2021] HCATrans 129
Decision Date

CaseChat Overview and Summary

In *Hayward v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Hayward, had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. Specifically, the Court had to determine if there was sufficient evidence of provocation to warrant such a direction, and if not, whether the absence of that direction had led to a miscarriage of justice.

Gageler and Steward JJ, in a joint judgment, found that the evidence presented at trial did not, as a matter of law, establish a sufficient evidentiary foundation for a defence of provocation. Their Honours explained that for provocation to be left to the jury, there must be evidence from which the jury could conclude that the act of the deceased was a cause of the appellant’s loss of self-control, and that the provocation was such as to make an ordinary person in the position of the appellant act as the appellant did. Applying this standard, the Court held that the evidence of the deceased's conduct, while potentially offensive, did not reach the threshold required to raise the defence of provocation. Consequently, the trial judge was not obliged to direct the jury on this matter.

The High Court therefore dismissed the appeal, upholding the decision of the Court of Appeal of Queensland.

Orders