Hyde-Harris v The Queen - [2005] HCATrans 790

[2005] HCATrans 790

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B66 of 2004

B e t w e e n -
PHILIP ANTHONY HYDE-HARRIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 12.39 PM

MR A.J. KIMMINS: If it pleases the Court, I appear on behalf of the applicant. (instructed by Jacobson Mahoney)

MS W.J. ABRAHAM, QC: If it please the Court, I appear with my learned friend, MR P.G. HUYGENS, for the respondent. (instructed by Director of Public Prosecutions (Commonwealth))

GUMMOW J: Yes, Mr Kimmins.

MR KIMMINS: The first matter I wish to deal with is that the original application for special leave sought special leave to appeal so far as the question of conviction was concerned and also sentence. I seek to withdraw the application so far as special leave regarding the sentence is concerned and seek to argue the one in relation to conviction.

GUMMOW J: Yes. Where is the draft grounds of appeal? Page 122?

MR KIMMINS: Yes.

GUMMOW J: So it is ground 2?

MR KIMMINS: That is correct, your Honour.

GUMMOW J: Appearing on page 122. That is not pressed?

MR KIMMINS: That is correct, your Honour.

GUMMOW J: Yes.

MR KIMMINS: The applicant was convicted on the eleventh day of his trial of an offence of attempt to defraud the Commonwealth. He was not legally qualified and he appeared for himself at trial. The primary issue at trial was whether the prosecution established beyond reasonable doubt that at the time of his business dealings the applicant had the requisite intention to defraud the Commonwealth. The prosecution case was left to the jury as a circumstantial case. It is submitted that it was not a strong prosecution case. At the end of the prosecution case the learned trial judge raised with the prosecutor the sufficiency of the prosecution case. After a spirited discussion with the prosecutor the learned trial judge referred himself to the principles in Doney’s Case and at that stage ruled there was a case to answer.

After commencing his summing‑up on day nine and before he continued on day 10 the prosecutor raised with the learned trial judge a number of matters pertaining to his Honour’s summing‑up the day before. Could I take the Court to transcript 28, line 21. His Honour there indicated that the case had troubled him, as indicated to the prosecutor “as may be apparent to you”, and also at transcript 31, line 7, in the midst of the discussion in relation to his Honour’s directions the day before, his Honour indicated, “This case has troubled me from the beginning”. At the end of the summing‑up no person, be it Mr Hyde‑Harris, nor the learned prosecutor, requested that the learned trial judge redirect the jury on any aspect touching…

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 Hyde-Harris v The Queen

Details

AGLC: Hyde-Harris v The Queen [2005] HCATrans 790
Case: [2005] HCATrans 790
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Hyde-Harris, against his conviction for murder. The applicant 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 applicant argued that the jury should have been instructed that if they found the elements of provocation were established, they were bound to acquit him of murder and find him guilty of manslaughter, rather than being permitted to consider whether the provocation was sufficient to reduce the charge.

The High Court, comprising Gummow and Heydon JJ, held that the defence of provocation, when established, operates as a partial defence to murder, reducing the charge to manslaughter. Their Honours affirmed that the jury's role is to determine whether the elements of provocation are met. If they are, the legal consequence is a mandatory reduction of the charge from murder to manslaughter. The court reasoned that the trial judge's direction, which allowed the jury to consider the sufficiency of the provocation, was an error of law. The appeal was allowed, the conviction for murder was quashed, and a conviction for manslaughter was substituted.

Orders