Lapa v The Queen - [1996] HCATrans 77

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S150 of 1994

B e t w e e n -
SALVATORE LAPA
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 12.18 PM

MR G.R. JAMES, QC: May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant. (instructed by Bryan Gorman & Co)

MR N.R. COWDERY, QC: May it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

DAWSON J: Mr James.

MR JAMES: Your Honours, we seek an extension of time in this matter also. This is not a matter that raised the question of legal aid; however, it is a matter in which some of the matters that had gone before the Court of Criminal Appeal could not be detected as reflected in the judgment and, indeed, when the matter first came before this Court, it was necessary to go back to the Court of Criminal Appeal because it turned out that one matter that had gone before them on appeal had not been decided at all and that, consequently, your Honours have the benefit of a supplementary application book which reflects the judgment in which they dispose of that matter so that the special leave application, as it now stands, comes down to one matter only and that concerns the directions on the acceptance of evidence, onus and standard of proof.

In the summary of argument for the respondent, it was suggested that the passage of which we complain was a mere comment and did not, as it were, exemplify what, in our submission, permeates the summing up as to the acceptance of evidence so we have extracted for your Honours a sheet of references to the passages concerning the directions as to onus and standard of proof and how the jury is to regard evidence which, in our submission, show that the doctrine of “deal only with the evidence you accept” permeated the whole of the directions on onus and standard. A copy has been provided to my learned friend.

DAWSON J: Do you want us to read this?

MR JAMES: If your Honours would.

DAWSON J: Does your time run while we are doing that, or not?

MR JAMES: Yes, it does, and that is why I did it this way, to make it faster, your Honour.

GAUDRON J: Well, I must say I do not read the directions as having the fault which you ascribe to them.

MR JAMES: If your Honour pleases, might I take the Court to page 3 of the appeal book and commencing at line 1 is the portion where the trial judge gives the substantive directions to the jury as to how they might perform their…

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 Lapa v The Queen

Details

AGLC: Lapa v The Queen [1996] HCATrans 77
Case: [1996] HCATrans 77
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Lapa, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the Court of Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that the applicant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The High Court analysed the evidence in relation to the elements of provocation as established in Australian criminal law. Their Honours considered whether there was evidence of conduct by the deceased that could have been perceived by the applicant as a lawful or unlawful assault, and whether such conduct, if it occurred, was sufficient to deprive an ordinary person of the power of self-control. The judges concluded that the evidence did not establish a sufficient evidentiary foundation for a provocation defence to be left to the jury. The appeal was therefore dismissed.

Orders