Horne v The Queen - [2022] HCATrans 232

[2022] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B24 of 2022

B e t w e e n -
CAMERON DAVID HORNE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 12.31 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.C. HOLT, KC appears with MS Z.G. BRERETON for the applicant. (instructed by McGinness and Associates)

MS C.N. MARCO appears for the respondent. (instructed by Office of Director of Public Prosecutions (Qld))

GAGELER J: Mr Holt.

MR HOLT: May it please the Court. This Court has never dealt with the interplay between intoxication, insanity and unwilled acts in the various criminal codes. As a result, in our respectful submission, this application raises foundational issues of criminal liability. As the Court will know, the concept of mens rea as embedded into the common law through He Kaw Teh has no part to play in the various criminal codes in the Code States, and that means, in our respectful submission, that section 23 of the Queensland Code and its analogues in other codes have a particularly and critically important part to play.

Might I ask the Court to take up the application book at page 68, which are the relevant legislative provisions from the Queensland Code, and I will just use those for present purposes. In the absence of the concept of mens rea, unless criminal offences in the various Code States have specific intentions attached to them – some do, but not those in this case – really, the only place in which a subjective intention occurs or emerges in terms of section 23, intention or motive. It follows that without section 23 – or where its operation is excluded, as the law as accepted to have applied up until now in Queensland says in this case – excluded, the Code creates, in effect, a form of strict liability, and so the notion of willed or voluntary acts, in our respectful submission, is foundational.

Back to ancient times, there can be no crime without a willed or voluntary act, and nothing in the way in which the Code States have interpreted or construed their own codes has undone that proposition. When one looks at section 23, one sees that foundational notion in paragraph 1(a) – subsection 1(a) – that:

an act or omission that occurs independently of the exercise of the person’s will –

is something which a person is not criminally responsible for. The only facial limitation on that provision is that it is subject to express provisions of the Code relating to negligent acts and omissions. That is not this case. The question here is whether the law as we acknowledge immediately has stood in the Code States for 40 years…

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 Horne v The Queen

Details

AGLC: Horne v The Queen [2022] HCATrans 232
Case: [2022] HCATrans 232
Decision Date

CaseChat Overview and Summary

The case of *Horne v The Queen* concerned an appeal to the High Court of Australia following a conviction for an offence under the *Criminal Code* (Cth). The appellant, Mr Horne, had been found guilty of a serious criminal offence and sentenced to a significant term of imprisonment. The appeal challenged the validity of that conviction and sentence.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting certain evidence that was crucial to the prosecution's case. Specifically, the appeal raised questions about the admissibility of evidence obtained through a search and seizure process, and whether that process complied with the requirements of the *Criminal Code* and the Australian Constitution. The Court was required to consider the scope of the executive power to conduct searches and seizures, and the constitutional protections against unreasonable searches and seizures.

The High Court's reasoning focused on the interpretation of the relevant provisions of the *Criminal Code* and the implied constitutional freedom from unreasonable searches and seizures. The Court analysed the circumstances under which the evidence was obtained, paying close attention to whether the executive power had been exercised in a manner that was both authorised by law and consistent with constitutional principles. The Court affirmed that the executive power to search and seize is not unfettered and must be exercised in accordance with both statutory requirements and constitutional limitations.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders