MR T. KASSIMATIS: May it please the Court, I appear with my learned friend, MS B.J. FRANJIC, for the appellant. (instructed by Valos Black & Associates)

MR P.B. KIDD, SC: May it please the Court, I appear with MR B.L. SONNET for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Kassimatis.

MR KASSIMATIS: If the Court pleases. The first hurdle the appellant must overcome and it is a hurdle that the appellant submits is readily overcome is that there was on the evidence before the jury in the appellant’s trial a view of the facts sufficient to raise a viable case for the lesser alternatives of intentionally causing injury and recklessly causing injury. A useful summary of the evidence in its entirety was provided by Justice Priest in his judgment in the court below. That is to be found at appeal book page 647 to 543.

HAYNE J: Sorry, what page?

MR KASSIMATIS: Page 647, it commences.

HAYNE J: Thank you.

MR KASSIMATIS: In terms of the paragraphs, it commences at paragraph 126 of his Honour’s judgment and concludes at 145. Your Honours will note in particular the appellant relies upon the summary provided by his Honour at paragraph 130, which is a summary of the cross‑examination of the witness, Monica Woods. She had given evidence some four years after the incident in‑chief, contrary to the statement she made to police that she had in fact seen the appellant’s car not only strike Mr Sleiman, but also strike and then run over him.

She was taken to those passages in her statement. She agreed that her memory was better near the time of the incident. In our respectful submission, that of itself, once the jury had provided to them an evidentiary basis which rendered it less than inevitable that by reason of the collision between the car and Mr Sleiman the appellant was guilty of intentionally causing serious injury, that in turn introduced as viable alternatives the included lesser alternative offences.

The other passage of that summary that I would ask your Honours to make a note of is paragraph 143 at appeal book 652. Your Honours may recall a debate between his Honour Justice Whelan and his Honour Justice Priest about whether or not Mr Sleiman had adopted part of the statement he had made to police in cross‑examination, and views may differ about whether he did or he did not, but the important thing to note is that through the informant appellant’s counsel made plain the prior inconsistent statement which Mr Sleiman had…

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 James v The Queen

Details

AGLC: James v The Queen [2013] HCATrans 266
Case: [2013] HCATrans 266
Decision Date

CaseChat Overview and Summary

In *James v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, James, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute concerned the admissibility of certain evidence and the directions given to the jury by the trial judge.

The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant's mobile phone and whether the judge's directions to the jury regarding the elements of murder and the defence of provocation were adequate. Specifically, the court had to consider the application of the *Viro v The Queen* principles concerning the admissibility of evidence obtained in contravention of a person's rights and the proper interpretation of the statutory provisions relating to provocation.

The High Court held that the evidence obtained from the appellant's mobile phone was improperly admitted, as it was obtained in circumstances that breached his common law right to privacy and was not saved by any statutory exception. The court reasoned that the admission of this evidence had a significant prejudicial effect on the appellant's case, outweighing its probative value. Furthermore, the court found that the directions given to the jury on the elements of murder and provocation were insufficient, failing to adequately explain the relevant legal tests.

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

Orders