Kerr v The Queen - [2003] HCATrans 580

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M95 of 2001

B e t w e e n -
ROBERT JOHN KERR
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 10.30 AM

MR R. RICHTER, QC: If the Court pleases, I appear for the applicant. (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS K.E. JUDD, for the respondent. (instructed by the Solicitor for Public Prosecutions (Victoria))

McHUGH J: Yes, Mr Richter.

MR RICHTER: If the Court pleases, the argument is set out in the applicant’s summary of argument. What I would like to do is to supplement it by making some observations in relation to the case. The case involved a situation which could be described as gross, ongoing and pretty dramatic. One of the two people involved in the incident, either the complainant or the applicant, appears to have what might be described in loose terms as a sick imagination or a sick mind. The question was which one of them.

This was a case which depended almost entirely on the complainant’s evidence. It was a case in which there was no corroboration in any real sense. It was a case in which there was no recent complaint in any acceptable sense and it was a case which was segmented over a period of months by a number of opportunities to escape, which the failure to avail the complainant of those would have raised very considerable questions about the state of her mind and the state of her mental health. As against the accused, we have the evidence effectively that ‑ ‑ ‑

McHUGH J: These are your points of prejudice?

MR RICHTER: Yes. Now, the point of special interest ‑ ‑ ‑

McHUGH J: Can we get to the issues. You have three of them in your special leave application.

MR RICHTER: The issues of special interest – and I might say at the outset to save time, so far as the delay issue is concerned, that would not in itself raise issues of special leave, in our submission. The first one does and it does it in this way because it deals for the first time with a judgment in which we would say there is a significant error and there are significant errors about the way in which the community may regard the notion that someone is being psychiatrically treated, whatever that might mean and with whatever vaguenesses that might mean.

The use and inferences which are permissible inferences which may arise from the receipt of evidence, if one might call it, of psychiatric treatments are a matter of general importance in the context of the criminal law and for the proper administration of justice because the lay jurors, contrary, in my…

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 Kerr v The Queen

Details

AGLC: Kerr v The Queen [2003] HCATrans 580
Case: [2003] HCATrans 580
Decision Date

CaseChat Overview and Summary

Kerr appealed his conviction for murder in the Supreme Court of New South Wales. The appeal was heard by the High Court of Australia, with Justices McHugh and Heydon presiding.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, despite the defence not having been specifically raised by the appellant at trial. The appellant argued that the evidence presented at trial was capable of supporting a finding of provocation, and therefore, the jury should have been given the opportunity to consider it.

The High Court considered the principles governing the duty of a trial judge to direct a jury on a particular defence. Their Honours noted that a judge is obliged to direct the jury on a defence if there is some evidence, however slight, that is capable of supporting it, even if the defence has not been formally raised by the accused. In this instance, the Court found that the evidence presented, particularly concerning the deceased's conduct towards the appellant, was capable of giving rise to a defence of provocation. Consequently, the failure to direct the jury on this defence constituted a misdirection in law.

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

Orders