Marzilli v The Queen and Ors - [2013] HCATrans 324

[2013] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2013

B e t w e e n -
LUIGI MARZILLI
Applicant
and
THE QUEEN
First Respondent
KOSTA GIANNAKOPOULOS
Second Respondent
THE ATTORNEY‑GENERAL FOR THE STATE OF SOUTH AUSTRALIA
Third Respondent
Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 DECEMBER 2013, AT 12.48 PM

____________________

MS R.F. GRAY: May it please the Court, I appear with my learned friend, MS E.L. SHRINER, for the applicant. (instructed by Iles Selley Lawyers)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS N.M. SCHWARZ, for the first and third respondents. (instructed by Director of Public Prosecutions (SA) and Crown Solicitor (SA))

CRENNAN J: Thank you, Ms Gray.

MS GRAY: There is an affidavit of service in the appeal book in respect of service upon the second respondent.

CRENNAN J: Thank you.

MS GRAY: This matter concerns the scope of section 52 of the Constitution concerning Commonwealth places. A question arising on the application for special leave which has not previously been determined by…..of this Court concern section 52, is the extent to which section 52 of the Constitution extends Commonwealth legislative power to acts occurring, not just in the Commonwealth place, but in the State not being a Commonwealth place.

The applicant has been charged pursuant to section 244 of the Criminal Law Consolidation Act as applied State law in the Commonwealth place pursuant to section 4(1) of the CommonwealthPlaces (Application of Laws) Act. The applicant’s central contention on this application for special leave is that the applicant has been charged with an offence not known to the law of the Commonwealth.

There are five propositions that the applicant advances in support of this contention and I propose to outline them before addressing the central contentions in more detail. The first contention that the applicant advances is that the applicant could have been charged in relation to the relevant conduct pursuant to the State law. The implication of this, and the consequence the applicant submits, is that the State law is not picked up and applied as applied State law in the Commonwealth place pursuant to section 4(3) of the Commonwealth Places (Application of Laws) Act.

The applicant’s contention is that section 4(3) of the Commonwealth Places(Application of Laws) Act only operates to pick up and apply that State law which is not otherwise applicable. The second proposition that the applicant advances is that when consideration is had to the nature of the applied State law, there is no relevant Commonwealth head of power relied upon. The Commonwealth head of power that is relied upon is section 52 of the Constitution concerning Commonwealth places and the applicant’s contention is that 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 Marzilli v The Queen and Ors

Details

AGLC: Marzilli v The Queen and Ors [2013] HCATrans 324
Case: [2013] HCATrans 324
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of Mr Marzilli for the murder of his wife. The primary issue before the High Court of Australia was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. The respondents were the Crown and the Commissioner of Police.

The High Court was required to determine whether there was sufficient evidence of provocation to warrant a direction to the jury. This involved considering whether the evidence, if accepted, could have established that the deceased’s conduct constituted a provocation that caused Mr Marzilli to lose self-control, and whether that conduct was such as to have caused a reasonable man to do as he did.

The Court analysed the evidence presented at trial, including the deceased’s alleged taunting and aggressive behaviour towards Mr Marzilli. It was held that while there was evidence of provocation, it did not reach the threshold required for a reasonable jury to find that the provocation was such as to have caused a reasonable man to do as Mr Marzilli did. The legal principle applied was that a judge is only required to direct a jury on a defence if there is some evidence upon which a jury, properly instructed, could find the elements of that defence to be established.

The appeal was dismissed.

Orders