Kamm v The Queen - [2010] HCATrans 258

[2010] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S124 of 2010

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

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 11.11 AM

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by Macedone Legal)

MS D.M.L. WOODBURNE, SC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (NSW))

HEYDON J: Yes, Mr Wendler.

MR WENDLER: Your Honours, before I open the application, there is the issue of time and I understand there is no objection to enlarging the time.

HEYDON J: Let us not bother about that and concentrate on the substance.

MR WENDLER: Yes, move straight into it. Can I introduce the special leave question this way. In Fingleton v The Queen, this Court recognised that the forensic choices made by counsel can never be subordinated to a court’s transcendent duty to ensure that the trial conforms with the fundamental features of a criminal trial.

Your Honours, the adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel and that counsel has a wide discretion as to the manner in which proceedings are conducted. Fundamental to the role of counsel is a demonstration, an unequivocal demonstration, of independence and disinterest. What occurred in the circumstances of the applicant’s trial demonstrated that this fundamental aspect of the adversarial process did not come about by reason of the exchange that occurred between trial counsel and the important prosecution witness.

There is set out in the application book, from page 128 onwards, the evidence that underpins the issue of the clear lack of disinterest culminating extraordinarily in the trial judge actually asking the prosecution witness who was being cross‑examined, at 132 of the application book – the trial judge saying to the witness whether the witness accepted that the barrister had committed a criminal offence in relation to an issue concerning the destruction of documents – documents which, on the Crown case, were capable of being incriminatory of the offences charged.

The Court of Criminal Appeal resolved this controversy by effectively making a finding that the advocate and the witness were at cross‑purposes and there was not the forensic impact that was claimed has ultimately led to a miscarriage of justice. There is the fact, and there is of course the perception. Whether or not there was any breakdown in communication between the witness and the advocate was not really to the point. The clear insinuation from some of the answers suggested, and would have suggested to objective bystanders, that the advocate was in collusion, at worst in criminal collusion with his client and was clearly acting in a manner which did not demonstrate disinterest.

The Court 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.

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Details

Case: [2010] HCATrans 258
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of Mr Kamm for the offence of murder. The Crown alleged that Mr Kamm, with the requisite intent, caused the death of another person. Mr Kamm was found guilty by a jury and sentenced to imprisonment. He appealed his conviction to the High Court of Australia.

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 considered whether the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to cause an ordinary person to lose self-control, and the subjective elements, namely whether Mr Kamm himself had lost self-control.

The High Court held that the trial judge's directions on provocation were insufficient. Their Honours noted that the defence of provocation requires the jury to consider both the subjective state of the accused and the objective standard of an ordinary person. The judge's charge had not sufficiently explained that the jury must be satisfied that the provocation was capable of causing an ordinary person to lose self-control, and that Mr Kamm's reaction was a response to that provocation. The court emphasised that a failure to properly direct the jury on these elements could lead to a miscarriage of justice.

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

Orders