Melbourne v The Queen - [1998] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D163 of 1997

B e t w e e n -
ROY BERNARD MELBOURNE
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 1998, AT 2.51 PM

MR S.J. ODGERS: May it please the Court, I appear with my learned friend, MS S.J. COX, for the applicant. (instructed by the NT Legal Aid Commission)

MR R.S.L. WILD, QC: May it please the Court, I appear with my learned friend, MR M.J. CAREY, for the respondent. (instructed by the Director of Public Prosecutions (Northern Territory))

McHUGH J: Yes. Mr Wild, the Court thinks we may be assisted by hearing you first.

MR WILD: Your Honours, the argument which is being put in this case by the applicant is, to some extent, a bootstraps argument because there are two legs to it. On the one hand, the applicant is claiming that an incorrect direction was given as to character, by the trial judge, and on the other hand, that the applicant and other accused in similar situations are entitled to rely upon material provided to psychiatrists, out of court, as facts, in evidence, in the case itself. In other words, what used to be regarded as entirely hearsay material is suddenly given a greater relevance and a greater substance than it previously had. Now, in all of the cases to which we have made reference in our material, and those cases to which we have been able to find any reference to this area, it is clear that material given to psychiatrists, or other medical experts, as hearsay material is not elevated to evidence until there is evidence in the case itself.

McHUGH J: Why, having regard to the authorities, is not, for example, the accused’s own statements to the police matters which the jury were entitled to take into account?

MR WILD: They are matters that the jury can take into account, your Honour, and in respect of which character directions may be given, so it appears in some of the authorities - I am not talking about English authorities here, but Australian authorities ‑ ‑ ‑

McHUGH J: No, Australian authorities.

MR WILD: But, in fact, in obiter, in cases that reference is made. But that is a different thing, with respect, to elevating the opinion of the medical witnesses themselves to some greater status, because of ‑ ‑ ‑

McHUGH J: But once that evidence is in, and if it does go to character, for example, or support the expert opinion, or is the basis of the expert opinion, why is not a direction concerning character in respect of the probability, relevant?

MR WILD: Your Honour, can we restrict ourselves, with respect, so that I understand the argument, to what is contained in the record of interview as opposed to what…

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 Melbourne v The Queen

Details

AGLC: Melbourne v The Queen [1998] HCATrans 230
Case: [1998] HCATrans 230
Decision Date

CaseChat Overview and Summary

Melbourne (the appellant) was convicted of murder in the Supreme Court of Victoria. The appellant appealed to the High Court of Australia against this conviction.

The High Court was required to determine whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, and if so, whether the conviction should be quashed and a new trial ordered.

McHugh and Callinan JJ, in a joint judgment, held that the evidence presented at trial, including the appellant's own testimony, was capable of supporting a finding of provocation. They reasoned that the jury should have been given the opportunity to consider whether the appellant's actions were a response to a sudden or unexpected provocation, which would have reduced the charge from murder to manslaughter. The legal principle applied was that where there is evidence, however slight, that could support a defence, the judge must direct the jury on that defence.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial on the charge of manslaughter.

Orders