Leung v The Queen - [2000] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S161 of 1999

B e t w e e n -
JACKIE KAI CHU LEUNG
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2000, AT 12.30 PM

MR G.D. WENDLER: If the Court please, I appear for the applicant. (instructed by Van Houten Solicitors)

MR P.S. HASTINGS, QC: I appear with my learned friend, MR F.A. VELTRO, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Wendler.

MR WENDLER: Your Honours, this application raises matters of importance to the law of evidence, in particular, certain categories of evidence which can be immediately identified as being what is sometimes described as voice identification evidence, the legal relationship between voice identification evidence and expert opinion evidence.

GLEESON CJ: Is Australia still in the position where it is only in the Commonwealth jurisdiction and in New South Wales and, I think, the ACT, that this Evidence Act applies.

MR WENDLER: That is right, yes. The other category of evidence I was about to identify is sometimes described for convenience as ad hoc expert evidence. As your Honours know, over the last 20 years law enforcement agencies at both federal and State level have shown a significant enthusiasm for the use of electronic surveillance techniques. Very rarely does a criminal case go by these days when there is not a body of what might be described as electronic surveillance evidence and that sometimes takes the ‑ ‑ ‑

GLEESON CJ: Often of people speaking in a language which is not understood by members of the jury.

MR WENDLER: That is right, and essentially what occurs then is a translator is called and a special treatment has to be given to his evidence if that evidence goes further and he is, in effect, as was in this case, transmogrified into an expert in the area of voice identification evidence. What is of specific importance, certainly to the law of evidence concerning the State of New South Wales, is the legal relationship between sections 78 and 79 of the Evidence Act.

GLEESON CJ: This case does not stand as authority for any proposition on that subject, does it?

MR WENDLER: No. Well, it does, to this extent, that the expression “specialised knowledge” held within section 79 of the Evidence Act, the Court of Criminal Appeal appears to have held – certainly her Honour Justice Simpson held that that description was broad enough to pick up the ad hoc expert and in that sense it raises matters of importance to the law of evidence.

The other matter that arises is this, that this Court in Bulejcik v The Queen did not finally resolve the test of admissibility in relation to voice identification evidence. For instance, in the State of New South…

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 Leung v The Queen

Details

AGLC: Leung v The Queen [2000] HCATrans 330
Case: [2000] HCATrans 330
Decision Date

CaseChat Overview and Summary

In *Leung v The Queen*, the High Court of Australia considered an appeal by the applicant, Leung, 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 concept of self-defence, particularly in relation to the applicant's subjective belief as to the necessity of using force. The court had to determine if the jury had been properly instructed on the elements of self-defence as established in Australian criminal law, and whether any misdirection had led to a miscarriage of justice.

Gleeson CJ and Gaudron J, in their joint judgment, held that the trial judge's directions on self-defence were inadequate. They emphasised that the defence of self-defence requires the accused to have a genuine belief that the use of force was necessary to defend themselves, and that this belief must be based on reasonable grounds. The court found that the summing up had not sufficiently conveyed the subjective nature of the belief and the objective assessment of its reasonableness, potentially leading the jury to apply an incorrect legal standard. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders