Judge v The Queen - [1996] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S22 of 1996

B e t w e e n -
MICHAEL ALAN JUDGE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BRENNAN CJ

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1996, AT 12.04 PM

MR J.C. PAPAYANNI: If the Court pleases, I appear for the applicant. (instructed by Jeffreys & Associates)

MR R. KELEMAN, SC: If it pleases the Court, I appear for the respondent with my learned friend, MR G.S. HOSKING, SC. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Papayanni.

MR PAPAYANNI: The questions in this application are what are the elements of section 110 of the Crimes Act and is “accident” or “unintentional act” a defence to that, and the wrongful application of Ryan’s Case to the situation under section 110?

Now, in the first place the section - your Honours, I think, have a copy of the section. It is set out on page 14 of the application book. That section states:

Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to penal servitude for 25 years.

This section, of course, is a section that has been used now and is of importance because of this publicity in relation to home invasion. It is an important section, as well as the application in this case of Ryan’s Case to it which, in our submission, is incorrect. If one looks at that section one sees - and this is a substantive section, not an incidental section as in Ryan’s Case, and the elements of that offence are the breaking and entering and then what must be proved is the assault on any person with intent to murder that person, or any person. So you have the elements first of the break and enter and then the element of assault with intent to murder. The alternate count which is the count here which was charged is “inflict grievous bodily harm”.

Now, it is essential in relation to that particular offence that if you are endeavouring to prove the first limb of that, you would have to prove an assault and you would have to prove the specific intent of intent to murder. So what the submission is in relation to the second part of that section is that you have to prove the infliction of grievous bodily harm. Now, that means, in our submission, that it has to be a willed act and there has to be men rea in relation to it.

Ryan’s Case is applied, in this case, wrongly, in our submission, and I will deal with that in a moment. The difference between section 110 and Ryan’s Case

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 Judge v The Queen

Details

AGLC: Judge v The Queen [1996] HCATrans 348
Case: [1996] HCATrans 348
Decision Date

CaseChat Overview and Summary

In *Judge v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Mr. Judge, had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal to the High Court concerned the interpretation and application of the law relating to provocation as a defence to murder.

The central legal issue before the High Court was whether the jury had been adequately directed on the defence of provocation. Specifically, the court had to determine whether the trial judge's directions correctly explained the objective and subjective elements of provocation, and whether the jury had been properly instructed on how to consider the evidence in relation to those elements. This involved an examination of the relevant provisions of the Queensland Criminal Code and established common law principles concerning provocation.

The High Court, in its joint judgment, analysed the concept of provocation as a partial defence to murder, which, if established, reduces the charge to manslaughter. The court reiterated that provocation requires an act or series of acts done by the deceased, which, in the opinion of the jury, were such as to make a reasonable person lose self-control. Crucially, the court emphasised that the jury must also be satisfied that the accused was, in fact, deprived of self-control by that provocation. The High Court found that the directions given at trial were insufficient to properly guide the jury on these essential elements, particularly in relation to the objective standard of a "reasonable person" and the causal link between the provocation and the loss of self-control.

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

Orders