Menk v. The Queen - [2014] HCATrans 104

[2014] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B4 of 2014

B e t w e e n -
ANTHONY IAN MENK
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 16 MAY 2014, AT 11.04 AM

MR N.V. WESTON: May it please the Court, I appear for the applicant in this matter. (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

CRENNAN J: Mr Weston.

MR WESTON: Thank you, your Honour. May the Court please, the application raises a narrow issue but, in my submission, a fundamental one and a matter of general applicability, namely, what degree a trial judge in directing a jury in a case substantially dependent upon identification evidence need not incorporate as part of his warning, in the Domican terms on matters of identification evidence, need not incorporate matters which may reasonably be seen as diminishing the reliability of the identification evidence ‑ need not incorporate those matters because they may be “obvious to the jury”.

GAGELER J: So there is no dispute that the applicable principle was that stated in Domican?

MR WESTON: That is correct, your Honour, yes.

CRENNAN J: That is Domican v The Queen (1992) 173 CLR 555, and I think the relevant passage is to be found at 561 to 562?

MR WESTON: Your Honour, that is correct, and as I understand my learned friend’s written submissions, he accepts that is the applicable law. The case against the applicant was one which depended significantly upon the identification evidence of the complainant child. The incident seems to have been one that was of relatively short duration. The incident occurred in a darkened room at night and the principal act of identification was some words allegedly said by the applicant, “I so want to fuck you”, words which would have taken merely a second or two to have said.

GAGELER J: There was also the touch, was there not? There was also the feeling, the contact?

MR WESTON: Your Honour, that is correct. There is that evidence of the touch. The evidence about that is not as well developed as perhaps it might have been. It was not subject to any extended cross‑examination by trial counsel as to the nature of the touch, that is, whether there was any similarity between that and what had occurred earlier that day in consensual acts. As was noted by Justice of Appeal Holmes in her dissenting judgment, the evidence of the touch was really more supporting evidence for the act of identification from the applicant’s statement “I so want to fuck you”. It was really supporting evidence.

There was also some other evidence which the Crown relied upon. There was some DNA…

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 Menk v. The Queen

Details

AGLC: Menk v. The Queen [2014] HCATrans 104
Case: [2014] HCATrans 104
Decision Date

CaseChat Overview and Summary

In *Menk v The Queen*, the High Court of Australia considered an appeal by the applicant, Mr. Menk, 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 consider the threshold for raising the defence of provocation and the nature of the evidence that would be sufficient to warrant such a direction to the jury.

The Court reasoned that for a defence of provocation to be left to the jury, there must be some evidence, however slight, that the act of the accused was induced by a sudden or temporary loss of self-control caused by a serious and substantial provocation. In this instance, the Court found that the evidence did not meet this threshold. While there was evidence of a dispute between the applicant and the deceased, there was no evidence suggesting that the applicant had lost self-control or that his actions were a direct response to a provocation that was sufficiently serious to justify such a loss of control. Consequently, the High Court dismissed the appeal, upholding the conviction.

Orders