Lane v The Queen - [2014] HCATrans 171

[2014] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S35 of 2014

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

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 AUGUST 2014, AT 11.55 AM

MR W.C. TERRACINI, SC: May it please your Honours, I appear for the applicant with MR J.J. TREVALLION and MS E.R. NICHOLSON. (instructed by Archbold Legal)

MS J. GIRDHAM: May it please the Court, I appear with MR H. BAKER for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Mr Terracini.

MR TERRACINI: Your Honours, this is an appeal from the New South Wales Court of Criminal Appeal of 13 December 2013 involving a murder conviction of 13/12/2010. Our arguments are twofold as are encapsulated in the application book: firstly, that there was a viable case of manslaughter to go to the jury and we have adumbrated them at 335 in the application book and secondly ‑ ‑ ‑

BELL J: Perhaps just – I am sorry, Mr Terracini, but just one formal matter – I note you require an extension of time and you rely on Mr Archbold’s affidavit. I will just inquire, Ms Girdham?

MS GIRDHAM: No objection.

BELL J: Yes.

MR TERRACINI: Mr Archbold is here if they want to cross‑examine him?

BELL J: No. The requirements of the rule will be dispensed with, thank you, Mr Terracini.

MR TERRACINI: There are two grounds: the viable case for manslaughter and the positing of a series of questions by the Crown Prosecutor in his address. The points that we have made as to the viable case in manslaughter are on 335 of the application book and the nub, if I could describe it in that way, of the opposition to that proposition is on page 266 of the application book where the Court of Criminal Appeal deals with how there is not a viable case for manslaughter.

Now, as your Honours probably know, but certainly I can summarise it very quickly, the appellant’s case was it was murder or nothing. Manslaughter was not part of her case. There was no application made by defence counsel to the trial judge.

BELL J: Take that as a given and you rely on Gilbert and Gillard.

MR TERRACINI: Precisely, your Honour.

BELL J: But it remains to identify the basis upon which the jury, acting in accordance with the direction you contend the trial judge should have given, might properly have returned a verdict of manslaughter. That would have required, assuming the jury were not satisfied of the intent that would make the act murder, an assessment respecting unlawful and dangerous act manslaughter, that there was an act causing death, it was the applicant’s and it was unlawful, so there would need to be the identification of that act. Then…

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: [2014] HCATrans 171
Decision Date

CaseChat Overview and Summary

In *Lane v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal against a conviction for murder. The appellant, Lane, had been found guilty of murder by a jury and sentenced to a term of imprisonment. The appeal concerned the trial judge's directions to the jury regarding the defence of provocation.

The central legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to adequately direct the jury on the subjective element of provocation, specifically concerning the question of whether the appellant's actions were a response to a sudden or temporary loss of self-control. The appellant argued that the jury instructions were insufficient to ensure they properly considered whether his conduct was a spontaneous reaction to the alleged provocation, rather than a pre-meditated act.

Bell and Keane JJ analysed the principles governing the defence of provocation, emphasising that the jury must be satisfied that the act causing death was done under such provocation as to cause a sudden and temporary loss of self-control, rendering the person unable to make an ordinary person act in the same way. The Court reviewed the evidence presented at trial and the specific directions given by the judge, concluding that while the judge had referred to the need for a "sudden" loss of control, the directions did not sufficiently elaborate on the subjective nature of this element. The Court found that the jury may not have fully appreciated that the question was whether the appellant *himself* lost self-control, and that the provocation must have been the cause of that loss of control.

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

Orders