On appeal from the Supreme Court of Western Australia
Representation:
J A Sutherland for the applicant (instructed by McDonald & Sutherland)
S E Stone with C C Porter for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
King v The Queen
Criminal law – Burglary – Offence of committing an offence in the place of another person when in that place without that other person's consent – Criminal Code (WA), s 401(2) – Onus of proof – Onus on prosecution to prove beyond reasonable doubt absence of consent under s 401(2) – Where offence alleged to be committed was breach of restraining order – Where restraining order prohibited entry onto premises – Statutory provision for defence to offence of breach of restraining order if defendant proves on balance of probabilities existence of consent to be on premises – Whether provision relevant – Whether Court of Appeal erred in dismissing appeal from trial judge's jury direction that onus was on prosecution throughout to negative consent.
GLEESON CJ.This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of Western Australia. Following a trial in the District Court, the appellant was convicted of an offence against s 401(2) of the Criminal Code (WA) ("the Code") (described by Wheeler J in the Court of Criminal Appeal as "aggravated burglary and committing an offence (breach of restraining order)") and also of an offence of deprivation of liberty contrary to s 333 of the Code. It is the first that is presently relevant. The issue to be determined arises out of the compound nature of the offence as charged, and the interrelationship of its elements.
The facts
The prosecution case, accepted by the jury, was as follows. The applicant and the complainant, who were husband and wife, had separated. The applicant behaved aggressively towards the complainant, and on a number of occasions threatened to kill her. She obtained a restraining order. The terms of the order will be referred to below. In November 1998, the complainant and her children went to a women's refuge. Later, in mid-November, they moved into a house in Forrestfield without revealing their whereabouts to the applicant. At about 6.30 am on 21 November 1998 the applicant, having obtained the address from another source, went to the Forrestfield house. The complainant, before opening the door, asked who was there. The applicant said he was a neighbour. When the complainant opened the door, the applicant pushed his way in and knocked the complainant to the ground. He…
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 King v The Queen
Sign in free to access the full text
Details
AGLC
King v The Queen [2003] HCA 42
Case
[2003] HCA 42
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for special leave to appeal by Mr King against a decision of the Court of Criminal Appeal of Western Australia. Mr King had been convicted in the District Court of Western Australia of aggravated burglary and committing an offence, specifically a breach of a restraining order, contrary to s 401(2) of the Criminal Code (WA). The central dispute concerned the onus of proof regarding the complainant's consent to Mr King being on the premises.
The legal issues before the High Court were whether the trial judge erred in directing the jury that the onus was on the prosecution throughout to prove the absence of consent beyond reasonable doubt, and whether this direction adequately accounted for the provisions of the Restraining Orders Act (WA) concerning consent to being on premises. Specifically, the court had to determine if a statutory provision that placed the onus on the defendant to prove consent on the balance of probabilities for the offence of breaching a restraining order was relevant to the charge under s 401(2) of the Criminal Code.
The High Court, in dismissing the appeal, reasoned that while the trial judge's direction regarding the prosecution's onus to prove lack of consent beyond reasonable doubt for the s 401(2) offence was correct, it failed to advert to the separate onus created by s 62 of the Restraining Orders Act for the breach of the restraining order element. The Court of Criminal Appeal had found this to be an error, but concluded that the proviso to s 689(1) of the Criminal Code could be applied. The High Court agreed with this approach, finding that in the context of the trial, the jury's finding that Mr King was on the premises without consent beyond reasonable doubt necessarily encompassed the issue of consent for the breach of the restraining order. The court noted that the failure to mention the s 62 defence was, if anything, favourable to the appellant, as it avoided potential confusion arising from different standards of proof for consent on the same factual issue.
Special leave to appeal was granted, but the appeal was ultimately dismissed.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal dismissed.
Background
Background to the litigation
This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of Western Australia. Following a trial in the District Court, the appellant was convicted of an offence against s 401(2) of the Criminal Code (WA) ("the Code") (described by Wheeler J in the Court of Criminal Appeal as "aggravated burglary and committing an offence (breach of restraining order)") and also of an offence of deprivation of liberty contrary to s 333 of the Code. It is the first that is presently relevant. The issue to be determined arises out of the compound nature of the offence as charged, and the interrelationship of its elements.The facts The prosecution case, accepted by the jury, was as follows. The applicant and the complainant, who were husband and wife, had separated. The applicant behaved aggressively towards the complainant, and on a number of occasions threatened to kill her. She obtained a restraining order. The terms of the order will be referred to below. In November 1998, the complainant and her children went to a women's refuge. Later, in mid-November, they moved into a house in Forrestfield without revealing their whereabouts to the applicant. At about 6.30 am on 21 November 1998 the applicant, having obtained the address from another source, went to the Forrestfield house. The complainant, before opening the door, asked who was there. The applicant said he was a neighbour. When the complainant opened the door, the applicant pushed his way in and knocked the complainant to the ground. He assaulted the complainant and held her captive for several hours. She finally escaped and rang the police. The applicant was arrested. When arrested, the applicant said that the complainant had invited him to come to the house to fix her car. However, there was evidence of a later telephone conversation in which the applicant told another person that he had obtained his wife's address from a third party. The applicant, who was unrepresented for most of the trial, gave no evidence. It is convenient to mention, for the purpose of putting it to one side, what Wheeler J correctly identified as a red herring. In an interview with the police, the applicant said he had been advised, before 21 November 1998, that, although the restraining order prevented him from doing certain things, including approaching his wife, it would not be a breach of the order if he did those things with her consent. This led the trial judge to give directions to the jury about honest and reasonable mistake. The point seems to have been taken up at the request of the prosecution, speculating as to possible defences that might be raised by the applicant in address. As Wheeler J said, having regard to the evidence, including the two competing versions of how the applicant came to enter the complainant's premises on 21 November 1998, the subject was irrelevant. The applicant told the police that he had been invited to the premises by his wife for the purpose of repairing her car. The complainant denied she had invited the applicant to visit her. She said that when the applicant came to her door he pretended to be someone else. When she opened the door he forced his way in. On either version, there was no room for anything that might have involved ambiguity, or that could have given rise to any mistaken belief on the applicant's part. On the complainant's version, the applicant was obviously not there with her consent. On his version, he was there with her consent and at her invitation. If the applicant had given evidence, it was only by telling a new story, inconsistent with what he had told the police, that any issue of honest and reasonable mistake could have arisen.The restraining order
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW, CALLINAN AND HEYDON JJ
(dissent)
KIRBY J
The trial judge made no mention of s 62 of the Restraining Orders Act, or of any defence to a charge of breach of a restraining order provided by that section.The decision of the Court of Criminal Appeal Wheeler J, with whom Wallwork and Steytler JJ agreed, delivered the principal judgment with respect to the convictions. She considered that the trial judge was in error in failing to advert to s 62. She said: "The position in this trial, then, was that there was an accurate direction, in relation to the element of being in the place of Sandra King 'without her consent' that that element had to be proved beyond reasonable doubt before the jury could convict. By reason of the failure to advert to s 62(2) of the Restraining Orders Act, the jury was not also directed that in relation to the element of committing a breach of a violence restraining order, it would have been open to the applicant to prove to them on the balance of probabilities that he was in the place with her consent and that if he satisfied the jury in respect of that matter, that element would not have been proven. In law then, the issue of consent arose at two different places in the indictment and the burden in relation to each was different. The jury was told only that the burden in relation to consent was on the Crown and was not told that there was an element in respect of which an issue of consent might arise where the onus would be upon the accused. The error of law is clear. The question which then arises is whether it is open to this Court to apply the proviso to s 689(1) of the Criminal Code." Wheeler J concluded that it was a proper case for the application of the proviso. She said: "In this case, in the whole of the context of the trial, the issue of whether the Crown had proved lack of consent beyond reasonable doubt was squarely before the jury. It is not possible, as a matter of logic, to reach a view that a jury, which was necessarily satisfied beyond reasonable doubt that the applicant was in the place without Mrs King's consent, might nevertheless have been persuaded by him, upon the same facts that on the balance of probabilities, he did in fact have her consent. In the context of this particular indictment, the failure to put the potential defence pursuant to s 62 of the Restraining Orders Act could only have been, if anything, favourable to the applicant. The reason for saying this, is that there is plainly a potential for confusion when precisely the same factual issue falls to be determined by a jury at different points in the indictment applying a different onus of proof in respect of each. It would require a very careful direction in those circumstances to keep firmly in the forefront of the jury's mind the fact that the first of the elements was one in relation to which the accused person carried no burden at all. In this case, once the issue of consent was determined adversely to the accused beyond reasonable doubt, the finding in relation to breach of the restraining order necessarily must have flown from that."The appeal to this Court