Honeysett v The Queen - [2014] HCATrans 121

[2014] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S57 of 2014

B e t w e e n -
ANTHONY CHARLES HONEYSETT
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 JUNE 2014, AT 10.16 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with MR D.P. BARROW. (instructed by Blair Criminal Lawyers)

MR J.H. PICKERING, SC: I appear for the respondent with MS J.A. GIRDHAM, SC. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: Thank you, your Honour. We have provided the outline. I do not think it contains any surprises, but shall I just pause for a moment while you look at it?

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases, could I take your Honours directly to appeal volume 2, page 548. What you see at 548 is a still photograph. The fact in issue is whether or not the person that you see with the white T-shirt, or whatever it is, over his head at 548 is the same as the person you see on page 674, which is the accused and the appellant in these proceedings. There was comparison of two sets of CCTV conducted by Professor Henneberg that was the subject of the evidence that brought those two together. To have an appreciation as to the significance that this ultimately carried in the case, could I take your Honours to volume 1 at page 372.

FRENCH CJ: Sorry, 372, was it?

MR GAME: Page 372, your Honour. I regret there is some repetition in some pages here but, in any event, page 372. The jury asked at line 42 a question that was addressed by this Court in Shepherd in almost those terms. Now, the answer to that question was given in a direction ‑ this is quite late in their deliberations ‑ the answer to that question was given at 378 and there one sees how the Crown case is brought together. In effect, there are five strands. The second is the CCTV footage and the fifth is what was described as the similarities observed by Professor Henneberg. So there cannot be any doubt that this evidence of Professor Henneberg is carrying the case forwards in establishing with whatever certainty that the person in the photograph, then the CCTV footage of the armed robbery, is the appellant.

Then just again at 396, the jury indicated that they could not reach an agreement and they were given what has come to be known as a black direction, an exhortation of sorts, and then at 400 they asked another question at the bottom of the page which is clearly directed to the Henneberg evidence, and they receive a direction that they consider all of the evidence together. That can…

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 121
Decision Date

CaseChat Overview and Summary

Honeysett v The Queen concerned an appeal to the High Court of Australia following a conviction for a number of offences, including aggravated break and enter and assault. The appellant, Mr Honeysett, had been found guilty by a jury in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, 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 that they must be satisfied beyond reasonable doubt of the existence of each element of the offences charged. Specifically, the appeal raised questions about the proper application of the principle that the prosecution bears the onus of proving every element of a criminal offence beyond reasonable doubt, and how this principle applies when an accused relies on a defence that involves an element of the offence.

The High Court unanimously allowed the appeal, quashing the conviction and ordering a new trial. The Court held that the trial judge's directions to the jury were inadequate and likely to mislead them regarding the onus of proof. The judges reasoned that where an accused raises a defence that negates an element of the offence, the prosecution must still prove that element beyond reasonable doubt, and the jury must be clearly instructed to this effect. The trial judge's charge, by suggesting that the jury might find the appellant guilty if they were not satisfied that the defence had been made out, impermissibly shifted the onus of proof.

Consequently, the High Court found that there had been a miscarriage of justice. The conviction was set aside, and the matter was remitted to the District Court of New South Wales for a retrial.

Orders