James v The Queen - [2013] HCATrans 183

[2013] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M35 of 2013

B e t w e e n -
SAMUEL JAMES
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 1.30 PM

MR T. KASSIMATIS: May it please the Court, I appear for the applicant. (instructed by Valos Black & Associates)

MR P.B. KIDD, SC: If the Court pleases, I appear with MR B.L. SONNETT for the respondent. (instructed by Director of Public Prosecutions (Vic))

BELL J: In this matter, gentlemen, I think we might be assisted by hearing from Mr Kidd first.

MR KIDD: Your Honours, the basis of this appeal is essentially that the lesser offence of injury was reasonably open, or that it was viable, which essentially is what his Honour Justice Priest found. It is our first submission that on the evidence in the case such a scenario was not practically and fairly open.

BELL J: It is more difficult making that proposition good when one member of the Court of Appeal found that it was.

MR KIDD: Look, I accept that, your Honour, but just turning to the, perhaps, two propositions upon which we principally rely, the first, in order to meet that answer and obviously meet Justice Priest’s finding, the first proposition is this: that without descending into the law too much, all of the cases acknowledge in non‑homicide cases at the very least that whether an alternative of a lesser offence should be the subject of a direction it involves some assessment of the way in which the case has been presented at trial. Now, it is true that forensic decision does not necessarily answer the point, but the question must be answered, not in some vacuum, but having regard to the premises of the way in which the case was conducted, not with a reconstructed theoretical case.

Now, here, the starting point, we say, is how was this case presented? The defence case was it was an accident, pure and simple. The defence case was, “I tried to avoid hitting him” – this emerges in his record of interview – “I tried to avoid hitting him and I did avoid him when he departed from the scene”. His position was not only did he not strike him, not only did he not intend to strike him, but he did not in fact strike him. That was the defence case. The prosecution case was that he deliberately struck him and the prosecution case was essentially that if he deliberately struck him inevitably he had the requisite intention with respect to serious injury.

Now, the prosecution case in the broader - and then I will descend into the evidence in more detail – in the broad, the prosecution case was if you strike a person with a motor vehicle, except for…

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 183
Case: [2013] HCATrans 183
Decision Date

CaseChat Overview and Summary

In *James v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal against a conviction for murder. The appellant, James, had been found guilty of murder by a jury and sentenced to a term of imprisonment. The appeal concerned the trial judge's directions to the jury regarding the defence of provocation.

The central legal issue before the Court of Appeal was whether the trial judge had adequately directed the jury on the elements of provocation, particularly in relation to the subjective and objective aspects of the defence. Specifically, the court had to determine if the jury had been properly instructed on how to consider whether the provocation was such as to cause an ordinary person to lose self-control and, if so, whether the appellant's reaction was a response to that provocation.

The Court of Appeal found that the trial judge's directions on provocation were flawed. The court explained that the defence of provocation requires the jury to consider two main questions: first, whether the deceased's conduct actually caused the appellant to lose self-control; and second, whether that conduct was such as to cause an ordinary person to lose self-control. The court held that the jury directions had not sufficiently distinguished between these two elements, potentially leading the jury to misapply the law. The court concluded that the misdirection was a material error that may have affected the jury's verdict.

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

Orders