King v The Queen - [2011] HCATrans 249

[2011] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M27 of 2011

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

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 SEPTEMBER 2011, AT 12.03 PM

MR M.J. CROUCHER: May it please the Court, I appear with my learned friend, MS C.A. BOSTON, on behalf of the applicant. (instructed by Balmer & Associates)

MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

GUMMOW J: Yes, Mr Croucher. You need an extension of time, I think.

MR CROUCHER: Yes, we do.

GUMMOW J: Is that opposed, Mr Silbert?

MR SILBERT: No, your Honour.

GUMMOW J: Then you have that extension.

MR CROUCHER: Thank you, your Honour. The special leave question as we see it is whether the principles that apply to a failure to leave manslaughter adequately or at all in a murder trial, as explained by this Court in Gilbert and recent cases, apply to a case such as the present where dangerous driving causing death was not adequately left in a case of culpable driving.

The errors in the directions on dangerous driving causing death were twofold and were fundamental. Firstly, the trial judge directed that it was sufficient that there be a risk, or a real risk of mere harm or hurt, whereas the authority of De Montero, which was decided after the trial, makes clear that there must be a considerable risk of death or serious injury. That is the first error.

The second is that her Honour told the jury that in contradistinction to culpable driving causing death, which requires the driving be such as to merit criminal punishment, her Honour expressly directed the jury that that was not the case in relation to dangerous driving causing death, yet De Montero also makes that point that that is a requirement of the directions for dangerous driving causing death.

BELL J: It might be one thing if the trial judge had not directed that the requirement of the alternative involved conduct of a vehicle such as to attract criminal punishment, but to positively direct that the alternative count did not have that character might be thought to have very significantly weakened the seriousness of the alternative count and your point is this was a case which you submit was capable of being seen as a relatively borderline culpable drive.

MR CROUCHER: Indeed, we say that the threshold for dangerous driving causing death was reduced almost to a vanishing point, given the issues that were fought. The respondent of course accepts in his submissions that the directions were diluted. If this applicant had been acquitted of culpable driving, but convicted of dangerous driving death there is no…

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.

Keep reading for free

Create a free CaseChat account to read King v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] HCATrans 249
Decision Date

CaseChat Overview and Summary

In *King v The Queen*, the High Court of Australia considered an appeal by the applicant, Mr. King, against his conviction for murder. The central dispute concerned the admissibility of certain evidence and the proper application of the law relating to self-defence in the context of a jury trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior violent conduct, which the prosecution argued was relevant to motive and intent. Furthermore, the Court had to consider whether the directions given to the jury regarding the elements of self-defence, particularly the requirement of an honest and reasonable belief in the need for self-preservation, were adequate and correctly articulated.

Gummow and Bell JJ analysed the principles governing the admission of evidence of prior bad character, noting that such evidence is generally inadmissible unless it has a specific relevance beyond merely showing a propensity to commit the crime charged. Their Honours found that the evidence in question did possess such relevance, as it tended to establish the applicant's state of mind and intent at the time of the killing. Regarding the self-defence directions, the Court affirmed that a jury must be satisfied beyond reasonable doubt that the accused did not act in self-defence, and that the defence requires an honest belief, which may be mistaken, that the use of force was necessary. The Court found no error in the trial judge's directions on this point.

The appeal was dismissed.

Orders