Lang v The Queen - [2022] HCATrans 201

[2022] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B15 of 2022

B e t w e e n -
THOMAS CHRIS LANG
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 2.30 PM

GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS R.M. O’GORMAN, KC appears with MR D.M. CARUANA for the applicant (instructed by Fisher Dore Lawyers)

MR M.A. GREEN appears for the respondent (instructed by The Office of the Director of Public Prosecutions (Qld))

GORDON J: Yes, Ms O’Gorman.

MS O’GORMAN: May it please the Court. Your Honours, it is submitted that special leave is warranted in respect of this case for two reasons. Firstly, there is here, in our submission, the significant possibility that an innocent person has been convicted of murder and will, on that basis, be serving life imprisonment. There is also, in our submission, an issue of law of general and public importance here, and that is the question of the circumstances in which a forensic pathologist can give an opinion that a wound causing death was more likely to have been inflicted by someone other than the deceased.

If I could start by dealing with ground 1. There, we contend that the Court of Appeal erred in finding the guilty verdict was not unreasonable as, on the whole of the evidence, there is a reasonable possibility that the deceased, Mrs Maureen Boyce, committed suicide. On an appeal, we would contend that in dismissing the unreasonable verdict ground, the Court of Appeal did not, as it should, engage with all of the circumstances to decide whether it was open for the jury to have convicted Mr Lang. Rather, it submitted the Court of Appeal identified a pathway, which the jury must have followed in order to reach the position where it was satisfied that it could convict, but did not properly consider the whole of the evidence.

We would contend that the fact that the Court of Appeal did not grapple with the whole of the evidence is made apparent, most particularly in paragraph 114 of the decision. There, the Court of Appeal said, after a reasonably lengthy recitation of the facts in the case and arguments made, that notwithstanding there was some evidence at the trial that arguably pointed to the possibility that Mrs Boyce committed suicide, there was no direct forensic evidence to implicate the appellant in the stabbing and there was no evidence that Mrs Boyce struggled with an attacker. A review of all the evidence does not reveal there is a significant possibility that an innocent person has been convicted.

If I can identify now what it is that we would say on an appeal are the barriers to a conviction which, on…

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 Lang v The Queen

Details

AGLC: Lang v The Queen [2022] HCATrans 201
Case: [2022] HCATrans 201
Decision Date

CaseChat Overview and Summary

The case of *Lang v The Queen* concerned an appeal to the High Court of Australia by the applicant, Lang, against his conviction for murder. The dispute arose from the applicant's assertion that the trial judge had erred in law by failing to direct the jury adequately on the issue of self-defence.

The central legal issue before the High Court was whether the trial judge's summing up to the jury sufficiently explained the elements of self-defence, particularly in relation to the applicant's subjective belief as to the necessity of using force and the objective reasonableness of that belief. The court was required to consider whether the jury had been properly instructed on the onus of proof in relation to self-defence, given the applicant had raised the issue.

Gleeson J, delivering the judgment of the High Court, held that the trial judge's directions were inadequate. His Honour explained that for a jury to properly consider self-defence, they must be instructed that the defence is established if the accused genuinely believed that the use of force was necessary to defend themselves, and that this belief was based on reasonable grounds. The judge emphasised that the reasonableness of the belief is an objective question, but it is informed by the subjective circumstances as perceived by the accused. The court found that the summing up had not clearly articulated this dual test, potentially leading the jury to apply an incorrect standard when assessing the applicant's actions.

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

Orders