Hill v The Queen - [2001] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A40 of 2000

B e t w e e n -
RONALD GORDON HILL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 17 AUGUST 2001 AT 10.15 AM

MR M.L. ABBOTT, QC: May it please the Court, I appear with my learned friend, MR H.D. BARKLAY, for the applicant. (instructed by Mangan Ey & Associates Pty Ltd)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS L.C. DUNCAN, for the respondent. (instructed by Director of Public Prosecutions (South Australia))

MR ABBOTT: If the Court pleases, this is an application for special leave and an application pursuant to Order 69A rule 3(2). There are, in our submission, two questions warranting the grant of special leave. The first is what is the test that should be applied by a court relative to the disqualification of a juror for apprehended bias. In respect of this, we say that the test that was applied by the Court of Criminal Appeal was not the test laid down by this Court in Johnson, recognising, however, that the test as applied in Johnson was not said to be referrable to jurors, but to judicial officers.

HAYNE J: Assume for the purposes of debate that there was an error of that kind in the Full Court, what consequence can be said to have followed from the application of that wrong test in this case, even if you applied a “double-might” test?

MR ABBOTT: Yes, the consequences that follow, in our submission, are that the bar was raised too high and ‑ ‑ ‑

HAYNE J: But if you applied a “double-might” test?

MR ABBOTT: ‑ ‑ ‑ and that the reasoning which enabled the court to slide under the bar was based on, we say, on the incorrect reasoning of Justices Duggan and Lander, where they said that they did not think that the association by itself would give rise to an apprehension of bias and we say that what the majority did was to speculate that nothing might happen, whereas, in fact, there was no basis for such speculation. On the assumption that the court is of the view that the incorrect test was applied by the Court of Criminal Appeal, then it is our submission that the reasons given by Justice Duggan are twofold: that he said he did not think the association by itself gives rise to an apprehension of bias because he said that was because of the surrounding circumstances; and, secondly, because credibility, so he said, was not in issue.

HAYNE J: Now, is it clear that the witness was not challenged in cross‑examination and that both sides treated her at trial as being a witness of truth?

MR ABBOTT: That is the fact. However, when one talks…

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 Hill v The Queen

Details

AGLC: Hill v The Queen [2001] HCATrans 285
Case: [2001] HCATrans 285
Decision Date

CaseChat Overview and Summary

In *Hill v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Hill, had been found guilty by a jury and sentenced to imprisonment. The appeal concerned the admissibility of certain evidence and the directions given to the jury by the trial judge.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in circumstances that might have infringed the appellant's rights, and whether the judge's directions to the jury on the issue of self-defence were adequate and accurate. Specifically, the court had to determine if the evidence was obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded in the exercise of the court's discretion. Furthermore, the court examined whether the jury had been properly instructed on the onus of proof in relation to self-defence and the standard required to establish that defence.

McHugh and Hayne JJ, in their joint judgment, analysed the principles governing the admission of evidence obtained in contravention of statutory provisions, particularly the discretion to exclude such evidence where its admission would be unfair to the accused or contrary to the public interest. They also reviewed the established legal principles concerning the defence of self-defence, including the requirement for an honest and reasonable belief in the necessity of using force, and the judge's duty to ensure the jury understood these requirements and the burden of proof. The court found that the trial judge's directions on self-defence were deficient, leading to a miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders