Application for special leave to appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
T A Game SC with D Jordan for the applicant (instructed by Legal Aid Commission of New South Wales)
R D Ellis with G E Smith for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Heron v The Queen
Criminal law – Application for special leave to appeal – Applicant to argue point not raised at trial or in intermediate appellate court – Whether circumstances of the case are exceptional.
Criminal law – Murder trial – Defences – Provocation – Misdirection of trial judge – No objection to direction – No request for further directions – Significance of misdirection in circumstances of the case.
GLEESON CJ. It is now settled that this Court has jurisdiction to entertain a criminal appeal on a ground not taken at the trial or in an intermediate court of appeal. In Crampton v The Queen[1], Hayne J and I, adopting the language of Gibbs CJ in Giannarelli v The Queen[2], qualified that by saying that special leave to appeal on such a ground would only be granted in exceptional circumstances. In our separate reasons, we explained the considerations which give rise to that qualification[3]. Kirby J referred to "repeated statements in this Court [which] acknowledge that to permit a new ground to be added in this Court requires exceptional circumstances to be shown"[4]. Gaudron, Gummow and Callinan JJ said that the Court may perhaps only choose to grant special leave in such a case rarely, but the power should be exercised to cure a substantial and grave injustice[5]. Whatever the difference, if any, between circumstances that are rare and circumstances that are exceptional, it is not one upon which the outcome of the present application turns.
In both Giannarelli and Crampton, the point taken for the first time in this Court was a point of law that constituted an unanswerable defence to the charge of which the applicant had been convicted. The present case is very different.
The facts are set out in the reasons for judgment of Callinan J. The applicant was tried for murder following the death of a man who was stabbed in the course of a bar-room brawl. The trial judge, out of an abundance of caution, directed the jury on provocation. On the evidence, any case of provocation was extremely tenuous. The…
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.
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Details
AGLC
Heron v The Queen [2003] HCA 17
Case
[2003] HCA 17
Decision Date
CaseChat Overview and Summary
The applicant, Heron, sought special leave to appeal to the High Court of Australia against his conviction for murder. The dispute arose from a fatal altercation in a bar where the deceased sustained a stab wound. The prosecution's case was that the applicant inflicted the wound with a knife, while the applicant maintained he did not possess a knife and the wound was caused by a broken glass shard. Although provocation was not part of the applicant's defence at trial, the judge nevertheless directed the jury on this issue.
The legal issues before the High Court concerned whether it was appropriate to entertain an argument regarding a misdirection on provocation, which had not been raised at trial or in the intermediate appellate court. The Court was required to consider whether the circumstances of the case were exceptional enough to permit the consideration of this new ground of appeal, and if so, whether the alleged misdirection constituted a miscarriage of justice.
The Court acknowledged that while the trial judge had made errors in directing the jury on provocation, these errors did not fundamentally undermine the trial's legality or demonstrate a miscarriage of justice. The Court found that the applicant's primary defence, that he did not stab the deceased, had been rejected by the jury. Given the evidence, including witness accounts placing a knife in the applicant's hands and confirming he stabbed the deceased, the Court concluded that a verdict of guilty of murder was inevitable, irrespective of the misdirection on provocation.
Consequently, the High Court dismissed the application for special leave to appeal.
Orders
Orders of the court
Application for special leave to appeal dismissed.
Background
Background to the litigation
The applicant submits that the answer to the second question, the correctness of which I will assume for present purposes, is that this is a case of the same kind as Crampton v The Queen[77] in which this Court held that there was no inhibition upon it to entertain an appeal on grounds raised here for the first time, although special leave to appeal on such grounds should be granted only in exceptional circumstances. [77](2000) 206 CLR 161.Facts and previous proceedings At about 7 o'clock in the evening of 27 October 1996 the applicant and Mr Jularic were arguing and fighting in a bar at the Beresford Hotel at Darlinghurst in Sydney. During the fight a sharp object penetrated Mr Jularic's chest. He collapsed. The applicant ran away. Mr Jularic died very soon afterwards. The prosecution case at trial was that the applicant stabbed Mr Jularic with a knife. The applicant gave evidence at the trial that he did not have a knife with him and that he did not stab anyone. He suggested that the fatal wound was caused by a shard from a glass broken during the fight. A friend of the applicant, however, Mr Niumeitolu, said that he actually saw him stab Mr Jularic with a knife. Two other witnesses confirmed Mr Niumeitolu's evidence and another saw the applicant with a knife in his hands. Although provocation was not part of the applicant's case the trial judge left it as an issue to the jury. It is necessary to refer to the evidence in some detail. In doing so I will take the case for the applicant at its highest by relevantly quoting his version of events as he recounted it in evidence in chief. The applicant described his occupation as a barman at a strip club. He worked there throughout the night before the slaying. At the beginning of his shift he took amphetamines and at the end of it he drank whisky mixed with a soft drink. For the period from 9 am until the death of Mr Jularic he was drinking continuously but was unable to make any estimate of how much he drank. At some time in the late afternoon or early evening he went to the Beresford Hotel where Mr Jularic was playing pool. After Mr Jularic had finished playing a game with some other people, the applicant began a game of pool with him. In the applicant's own words, the following events occurred:"Q:… you had a number of drinks, is that right?…A:I was pretty drunk.Q:So you got up to play the game of pool. What happened next?A:Towards the end of the game, I think there was only about – maybe – I don't know – I can't guess – like there was a couple of balls left on the table. I just like walked over to get to the other side and I accidentally bumped his pool cue. I said 'sorry' but he just gave me a dirty look and shook his head and when I stood by the sliding door –…Well, after the game he kind of looked at me and come over to shake my hand and me being drunk I thought I would give him a bit of his own medicine and shake my head to see how he felt. He just said, 'Well f*** you, you black c***' and walked off. I pushed him.Q:Can I ask you to pause there – he walked off where?A:Just to my other side, just a metre away.…Q:After those words were said and the deceased walked away from you, what happened then?A:I pushed him and asked him what he said. He laughed at me so I pushed him again and he pushed me back and then I hit him. Then we started fighting. I can remember falling backwards and taking out the sliding door. After that we was broke up. Rob had a hold of me and I thought it was over. I thought I got my black c***'s worth and as Rob was holding me the deceased came up and like, hit me and I kind of like slumped and then he kicked me. Then I got back up.Q:Can I ask you to pause there. Where did the kick connect?A:In the chest. Q:Go on.A:Then I got back up and Rob wouldn't let go of me, so I screamed at him to let go of me. Then the deceased said, 'Let him go, I want to see what he's got.' As soon as they let go of me, I shoulder barged him to the ground. We wrestled there for a while.…Q:How did you feel about the words that you say had been said to you by the deceased?A:I was pretty mad, you know, just angry.Q:You barged the deceased into the corner, is that right?A:Yes.…Q:What happened next?A:I can remember Rob grabbing me, pulling me off the deceased and throwing me on the couch and as I was sitting on the couch the deceased come over and started kneeing me in the head, I kind of like I covered up and then Rob started pushing him away. I can remember one of the guys in there hitting him with a pool cue....Q:We will turn to when you were on the couch. You say the deceased kneed you; what happened then, can you remember?A:I can remember Rob pushing him away, telling him to go and somebody, a guy, come over with a pool cue and started hitting him across the back, I can't really remember, a pool cue, and telling him to get out of the pool room, I don't know.Q:What happened next?A:The deceased walked off.Q:In which direction?A:Into the direction towards the glass house. I walked behind the deceased and then I come and I sit on these chairs over here [Indicating], where it says 'pool cue' here, like here [Indicating], but on the side.…Q:What happened next?A:The deceased come back in with a bar stool, kind of looked at me, started to approach. I grabbed the glass, I threw it at him and I go to the pool table, I grabbed another pool ball and I threw it at him again. …Q:What do you recollect happened next?A:Well, punching on again.Q:Go on.A:I can remember punching on with him and somebody called out 'police' and then I heard somebody else say, 'Let's get the f*** out of here', and then everybody started running and I suppose I ran too and jumped over the wall and ran down the street."
In Green, for example, the accused had admitted killing the deceased. Provocation was therefore the key issue in the trial and subsequent appeals. The trial judge had ruled against the reception of evidence of the past history of the accused tendered for the defence on that issue[74]. The evidence was subsequently admitted for a different purpose, and the trial judge instructed the jury not to take that evidence into account for the purposes of provocation. As a result, McHugh J was of the opinion that the "accused's real case on provocation was never left to the jury"[75]. None of those complaints avail the applicant in these proceedings. To that extent, his appeal lacks the substance that carried the day in Green. So far as substance was concerned, the real issue that the applicant wished to tender to the jury was whether he had stabbed the deceased. Upon that issue the jury's verdict must be taken to have rejected the applicant's defence.[74]Green (1997) 191 CLR 334 at 342.[75]Green (1997) 191 CLR 334 at 372.Conclusions and order In the result I am of the opinion that the judge was probably entitled, and certainly well advised, to leave provocation to the jury. In doing so he made errors of law in the instruction he gave them on the requirements of the applicable statute. Such errors did not deprive the applicant's trial of its fundamental quality as a trial according to law. They were no more than a misdirection on a particular point of law arising within the trial limited to the use on some (but not all) of the occasions of the incorrect verb of probability rather than possibility. Although not taken at trial or in the Court of Criminal Appeal, the point remains open in this Court. It has been fully argued. The applicant is not deprived of it simply because of the way his trial or the earlier appeal were run. Having heard full argument on the point, this Court should deal with its merits and not dispose of the application as if it were back before a panel of the Court as an ordinary application for special leave. The case is one where, notwithstanding established legal error, it has not been shown that a miscarriage of justice has actually occurred. The verdict of guilty of murder was inevitable. The demonstrated mistake in the directions on provocation do not justify disturbance of the conviction that followed that verdict. Although my preference, the application having been argued as an appeal, would be to grant special leave and dismiss the appeal, nothing turns on the disposition. I will therefore join in the order proposed by the other members of the Court. Special leave should be refused. In the Supreme Court of New South Wales, after a trial which lasted 23 days, the applicant was convicted of murder. The facts which gave rise to the charge are described in the reasons of Callinan J. At trial the applicant did not submit to the jury that he had been, or at least had not been proved not to have been, acting under provocation. His contention was that he had not stabbed the deceased; the deceased must have suffered the fatal wound in some other accidental way. Nonetheless, at the suggestion of the applicant's counsel, the trial judge (Sully J) gave the jury directions about provocation. The applicant now contends that those directions were wrong.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH J,
HAYNE J,
CALLINAN J