Kalache v The Queen - [2000] HCATrans 530

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S83 of 2000

B e t w e e n -
LESLIE GEORGE KALACHE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 2000, AT 11.08 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with MR M. BUSCOMBE. (instructed by Walter Madden Jenkins)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent with MS. P. ADEY. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, I will address the proceeds forfeiture question and the co‑operation question first, then the plea, then the totality question. Depending on how things proceed, I may, if the Court gives me leave, it may just taking a little longer than 20 minutes to complete what I have to say, but I will ‑ ‑ ‑

GLEESON CJ: Do not count on it, Mr Game.

MR GAME: Can I take the Court first, before I take the Court to the actual reasons of Justice Sully, to a couple of cases and an article? First, a case called Araya 63 A Crim R in which the question of forfeiture was considered but, in passing, in the judgment of Justice Carruthers at page 128, towards the bottom of the page, his Honour observed this. He said:

May I say, however, that the question of whether, and to what extent, a sentencing judge may take into account the confiscation of property under the relevant legislation raises nice and difficult issues, which should await adjudication by this Court in an appropriate case.

Now, your Honour the Chief Justice presided in that case and made some observations about the matter at page 130 and your Honour observed that whether or not it was a matter that could be relied upon in mitigation was a matter that had its own difficulties.

The case of Hoar 148 CLR 32 at 39, which is another case to which we have referred, where forfeiture was excluded because it was not caught by the conspiracy charged, this Court observed that:

Had forfeiture been authorized by the Act, the Chief Justice would have been entitled to take its impact on Hoar into account in assessing the penalty to be imposed on him, despite the provision under s. 48(2) that forfeiture “shall be in addition to and not part of a penalty”.

We say, a fortiori, the same applies in respect of the ‑ ‑ ‑

McHUGH J: That was his property, was it not?

MR GAME: That boat was his boat, yes, your Honour. But in the case of Cheatley (1972) 127 CLR 291 at 305, if I could just give the Court a copy of that decision, in which it was not his boat, there is an…

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 Kalache v The Queen

Details

AGLC: Kalache v The Queen [2000] HCATrans 530
Case: [2000] HCATrans 530
Decision Date

CaseChat Overview and Summary

In *Kalache v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Kalache, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court granted special leave to appeal from that decision.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to determine whether the evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control, a key element of the defence of provocation as defined in the relevant legislation.

The High Court, in a joint judgment, held that the trial judge's summing up had been deficient. Their Honours reasoned that the evidence, including the appellant's own testimony about his state of mind and the circumstances leading up to the killing, was capable of supporting a finding of provocation. The judge's directions had not adequately conveyed to the jury the concept of a "sudden or temporary loss of self-control" and had placed an undue emphasis on the need for a "sudden" reaction, potentially misleading the jury into believing that a significant delay between the provocative conduct and the act of killing would necessarily preclude the defence. The court applied the principles established in *Stingel v The Queen* regarding the elements of provocation and the duty of the trial judge to direct the jury on all defences for which there is some evidence.

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

Orders