Jervis v The Queen - [1992] HCATrans 182

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B40 of 1991
B e t w e e n -
KIM AILEEN JERVIS

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J

DEANE J

McHUGH J

Jervis

23/6/92

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 23 JUNE 1992, AT 3.35 PM

MR D.F. JACKSON, QC:

May it please the Court, I appear with

my learned friend, MR S.E. HERBERT, for the
applicant. (instructed by J.A. Hodgins, Director,
Legal Aid Office (Queensland))

MR R.N. MILLER, QC: If the Court pleases, I appear with my

learned friend, MR M.J. BYRNE, for the respondent.
(instructed by D. Field, Solicitor to the Director
of Public Prosecutions (Queensland))

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:

May I hand the Court copies of our outline of

submissions. Your Honours, I should say this is an
application which is out of time.

BRENNAN J:

By how much, Mr Jackson?

MR JACKSON:

Your Honour, by quite some days, in fact.

The

application should have been lodged 21 days after
28 August 1991. In fact, the application was not
found until 18 November. There is a further
affidavit which I would seek to file in Court and
read, and may I give Your Honours copies of that.

BRENNAN J: Is this related to the extension of time?

MR JACKSON:	Yes, Your Honour.
BRENNAN J:	We will hear what Mr Miller has to say about

that first.

MR MILLER:

I do not oppose it, Your Honour.

BRENNAN J: Not opposed?

MR MILLER:

No.

BRENNAN J:

We need not trouble you with that, Mr Jackson. There will be an order extending the time.

MR JACKSON:

Your Honours, the issue in the application and

the issue which divided the Court of Criminal
Appeal concerns the operation of the parties
provisions of the Queensland Criminal Code, and
those provisions in sections 7 and 8 make
criminally liable persons other than the person who
did the act or omission which constitutes the
offence.
The issue which arises in this case is whether

a person criminally liable by reason of section 7
or section 8 can be found guilty of an offence
different from that which, I should say, of course,
on the evidence in the case against the secondary party, the principal offender had committed. Now,

Jervis

23/6/92

Your Honours, in the particular case the applicant

was convicted of manslaughter. The evidence made
it apparent that the offence committed by the
principal offender was murder.
Your Honours, the issue arises as I said,

because of the terms of sections 7 and 8. May I
take Your Honours to those immediately.

BRENNAN J: Section 9 does not arise?

MR JACKSON:

Not for present purposes, Your Honour.

I was

going to come to it in just a moment. So far as
section 7 is concerned, Your Honours will see that
it commences by referring to an offence in the

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 Jervis v The Queen

Details

AGLC: Jervis v The Queen [1992] HCATrans 182
Case: [1992] HCATrans 182
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Jervis, sought to challenge a decision of the Queensland Court of Criminal Appeal. The core of the dispute concerned the operation of the parties provisions of the Queensland Criminal Code, specifically sections 7 and 8, which establish criminal liability for persons other than the direct perpetrator of an act or omission.

The legal issue before the High Court was whether a person found criminally liable under sections 7 or 8 of the Criminal Code could be convicted of an offence different from that which the principal offender had committed. In the applicant's case, he had been convicted of manslaughter, despite evidence suggesting the principal offender had committed murder. The applicant argued that the wording of sections 7 and 8 did not permit such a divergence in the offences.

The applicant's submissions focused on section 7 of the Criminal Code, which deems specified persons to have taken part in committing an offence and to be guilty of that offence. While section 7 allows for a secondary party to be charged with counselling or procuring an offence, or with committing it themselves, the applicant contended that the section, on its face, did not suggest that a secondary party could be guilty of an offence other than that established against the principal offender. The Court granted the applicant an extension of time to lodge the application, as it was not opposed by the respondent.

Orders