Hoblos v The Queen - [2014] HCATrans 234

[2014] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S124 of 2014

B e t w e e n -
MOHAMMED HOBLOS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 OCTOBER 2014, AT 11.16 AM

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MS J.L. ROY. (instructed by Zahr and Zahr Lawyers)

MR J.H. PICKERING, SC: I appear for the respondent, your Honour. (instructed by Director of Public Prosecutions (NSW))

CRENNAN J: Yes, Mr Game.

MR GAME: If the Court pleases. We need an extension of time, which I understand is not opposed.

CRENNAN J: Yes, you have that.

MR GAME: Thank you. The two points we wish to make are fairly short and I come to them this way. In this case there was evidence of admission of what might be described as involvement and there was evidence of some kind of preconcert with a person called El‑Hage, although there was nothing that pointed specifically to what may have been done with El‑Hage, and there was a great deal of emphasis on that preconcert. But that preconcert did not really prove anything in respect of the crime that was actually charged, which was a joint criminal enterprise between three people.

That part of the case was kind of run completely separately, which was, there was identified a shooter, a person with the shooter, and a driver. The question was, and the way the Crown ran its case was, that those three people were guilty of murder, and that we were one of those three people. Our case was that involvement did not establish that we were a party to that joint criminal enterprise. The point that was developed in the Court of Criminal Appeal was that it had not been established in any event that the driver was a party to such a joint criminal enterprise.

CRENNAN J: So your point as I took it was that the Court of Criminal Appeal treated presence and participation as unnecessary for the joint criminal enterprise.

MR GAME: That is right. So if you come to the end of the Court of Criminal Appeal’s judgment - and the end of the judgment is pages 87 and 88 - it is paragraph 119. So what you have got with - it says:

The driver delivered the two intruders to the vicinity of the party.

That is the paragraph, and it said - now, if you are looking for a joint criminal enterprise, you can – and it is clear from cases such as Osland and Huynh, which is the most recent, and in two paragraphs states the principles accurately and we accept them – but you can establish agreement by presence and participation and sometimes you can establish participation by presence, which comes from Tangye

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

Case: [2014] HCATrans 234
Decision Date

CaseChat Overview and Summary

Hoblos v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Hoblos, 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 granted special leave to appeal from the decision of the Court of Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court considered whether the judge's summing up had sufficiently explained the objective element of provocation, namely whether the provocation was such as to cause an ordinary person to lose self-control, and whether the subjective element, that the accused did in fact lose self-control, had been properly put to the jury. The court also considered whether the judge had adequately directed the jury on the relationship between provocation and the intent required for murder.

The High Court held that the trial judge's directions on provocation were inadequate. Crennan and Keane JJ reasoned that the summing up had not sufficiently conveyed to the jury the requirement that the provocation must be capable of causing an ordinary person to lose self-control. They emphasised that the jury must be instructed that the question is not merely whether the accused lost self-control, but whether the provocation was of a kind that could have caused an ordinary person to do so. The court found that the failure to adequately explain this objective element, and its connection to the subjective loss of control, constituted a miscarriage of justice.

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

Orders