Hubert v The Queen - [1994] HCATrans 286

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1993
B e t w e e n -
GREGORY JOHN HUBERT

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J GAUDRON J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 1994, AT 11.56 AM

Hubert

22/4/94

MR P.G. GUIDICE: If it please Your Honours, I appear for

the applicant. (instructed by George Giudice)

MR J.R. McKECHNIE, OC: If it please Your Honours, I appear

for the respondent with my learned friend,

MS Z.A. BOYATZIS. (instructed by the Director of
Public Prosecutions (Western Australia))

BRENNAN J: Yes, Mr Giudice.

MR GIUDICE:

May we start, Your Honours, by saying that

there are two matters that the applicant complains about. The first is in relation to the refusal to extend time within which to appeal.

BRENNAN J:

I think you would be better served in this Court

by going directly to the second matter.

MR GIUDICE:

Yes.

Can I start then, Your Honours, by

referring to page 52 of the appeal book, where the
Court of Criminal Appeal, where Mr Justice Murray,
said:
In my opinion therefore the directions of his
Honour of which complaint is made in grounds 2
and 3 were, with respect, incorrect, but the
error of law has occasioned no miscarriage of
justice of which the applicant may complain.

That statement, we say, is to be taken issue with, with respect, because it cannot be said that if the
directions as to the law in relation to section 266
of the Criminal Code, and as to accident, were
correctly put, that the jury would not have decided
the case any differently, and it - - -

BRENNAN J:

How can you say that, in the light of a finding of the jury, of the intent?

MR GIUDICE: Because, if one reads section 266 of the Code,

which is on page 4 of the application book, it says
this at the end of it:
and he is held to have caused any consequences
which result to the life or health of any
person by reason of any omission to perform
that duty.

And, His Honour the trial judge read that section

to the jury. So those words would have been
ringing, in my respectful submission, in the jury's
ears. That is, that a person is held to have
caused those consequences if he has negligently
used a dangerous object, or not taken care with it.
And when you combine that, Your Honour - - -

Hubert

22/4/94

BRENNAN J:

Is there any doubt as to whether or not the

stabbing had caused the death?

MR GIUDICE:	No.
BRENNAN J:	Is not that what those words deal with?

MR GIUDICE: Yes, but when you take - - -

BRENNAN J: Section 266 is a provision of the Code which is

intended…

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 Hubert v The Queen

Details

AGLC: Hubert v The Queen [1994] HCATrans 286
Case: [1994] HCATrans 286
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia, constituted by Brennan, Gaudron, and McHugh JJ, on an application for special leave to appeal. The applicant, Hubert, sought to challenge decisions of the Court of Criminal Appeal of Western Australia. The primary complaint concerned the alleged misdirection by the trial judge regarding section 266 of the Criminal Code and the issue of causation, which the applicant argued led to a miscarriage of justice.

The legal issues before the High Court included whether the Court of Criminal Appeal erred in finding that, despite potentially incorrect directions on the law relating to section 266 of the Criminal Code and the concept of accident, no miscarriage of justice had occurred. Specifically, the applicant contended that the jury might have reached a different verdict had the directions been correct, particularly in light of the trial judge's explanation of section 266 and the concept of likely or probable consequences of an action.

The High Court considered the applicant's submission that the trial judge's directions, when read together, created a dangerous combination for the jury, potentially detracting from their consideration of the applicant's actual intention. Brennan J questioned the applicability of section 266, noting it was intended to provide a causal link between an omission and a result, whereas the case involved a positive act of stabbing that caused death. The Court also referred to the principle from *Ugle* that if inadmissible evidence or incorrect directions deprived an applicant of a chance that was fairly open, a miscarriage of justice could be found. The application for special leave was ultimately refused.

Orders