Lowndes v The Queen - [1998] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P43 of 1997

B e t w e e n -
PETER ANTHONY LOWNDES
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 11.52 AM

MR M.R. GUNNING: May it please the Court, I appear for the applicant. (instructed by Gunning, Barristers & Solicitors)

MR J.R. McKECHNIE, QC: If your Honours please, I appear with my learned friend, MRS J.A. GIRDHAM, I represent the Crown. (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J: Yes, Mr Gunning.

MR GUNNING: In relation to this matter it deals with the interpretation of section 98 of the Sentencing Act, and more particular, indefinite sentence. I would take the Court directly to that.

KIRBY J: Did I read that this is unique in Western Australia, or is there a provision in South Australia that is similar?

MR GUNNING: I am unaware, your Honour.

KIRBY J: You will have to be aware if you come to the Court because that is a very important matter, and it is not insignificant to special leave. I have never seen anything like it in Australian legislation, but there may be analogies elsewhere.

MR GUNNING: Certainly, your Honour, I am not aware that there is anything similar.

GAUDRON J: What is the error you say was made by the Full Court?

MR GUNNING: The error that was made by the Full Court is that the Full Court, whilst it accepted that there were special circumstances in section 98(2), all the elements going through (a), (b), (c) and (d), in my submission, all require exceptional circumstances. What the Full Court did was, on page 16 of the Chief Justice’s judgment, he concluded ‑ ‑ ‑

GAUDRON J: That is page 40, is it, of the application book?

MR GUNNING: Sorry, page 40 of the application book, concluded:

In my opinion, having regard to the very short space of time between the previous release on parole and the commission of the present offences as well as the pre‑sentence reports, the evidence compelled a finding on the balance of probability that at the time of his release the respondent would pose a constant and continuing danger to the community.

Then he goes through much of the factual details, and on page 46 he states:

The assessment was made that the respondent presents as a “high risk” of re‑offending by reason of the fact that he is “dangerous to prepubescent males”.

The point of special leave in relation to this matter is that my submission is that it should be a special circumstance in respect of that; that is, that under section 98(2)(b):

the risk that the offender will commit other indictable offences;

GAUDRON J: What do you say of that?

MR GUNNING: What I say of that is that…

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 Lowndes v The Queen

Details

AGLC: Lowndes v The Queen [1998] HCATrans 376
Case: [1998] HCATrans 376
Decision Date

CaseChat Overview and Summary

In *Lowndes v The Queen*, the High Court of Australia considered an appeal by the applicant, Lowndes, 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 on the defence of provocation.

The central legal issue before the High Court was whether the evidence presented at trial was capable of supporting a finding that the applicant had acted under provocation, thereby entitling him to a direction on that defence. This required the court to assess whether there was any evidence, however slight, that the deceased's conduct could have constituted a provocation sufficient to lead an ordinary person to lose self-control and act as the applicant did.

The High Court held that the trial judge had erred in failing to direct the jury on provocation. Their Honours reasoned that the evidence, when viewed in its entirety, was capable of supporting a finding that the deceased's conduct, including his aggressive behaviour and verbal abuse, could have constituted a provocation sufficient to cause an ordinary person to lose self-control. The defence of provocation, once raised by the evidence, must be left to the jury for their determination.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders