Michael Miller and the Queen - [2020] HCATrans 111

[2020] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A3 of 2020

B e t w e e n -
MICHAEL MILLER
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO ADELAIDE

ON FRIDAY, 14 AUGUST 2020, AT 9.29 AM

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR K.G. HANDSHIN, for the applicant. (instructed by Barbaro Thilthorpe Lawyers)

MR M.G. HINTON, QC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (SA))

NETTLE J: Thank you, Ms Shaw.

MS SHAW: Your Honours, it is submitted that an important point of principle is raised by this application about the test to be applied by an intermediate appellate court considering whether provocation should have been left to the jury in circumstances where the Court is satisfied that the subjective limb was raised on the evidence and where the trial judge directs the jury in relation to self‑defence.

We submit that the following specific questions are raised by the approach of the Court of Criminal Appeal in the present case. Firstly, where an appellate court is addressing the threshold question of whether the provocation ought to have been left to the jury, is it the task of the appellate court to select what it considers to be the provocative conduct of the deceased rather than to identify the complete body of evidence which might have been considered by a jury as going to provocation had it been asked to consider the issue.

Secondly, is it the task of the Court of Criminal Appeal, considering the threshold question, to form its own view about the gravity of the provocation and then ask itself whether provocation of that gravity could have caused an ordinary person to lose self‑control and form an intention to do at least grievous bodily harm.

In particular, to the extent that the authorities describe the objective limb as involving a question of opinion or evaluative fact – for example, in Lindsay v The Queen (2015) 255 CLR 272 at paragraph 16 – did the Court of Criminal Appeal misunderstand these observations as authorising it to set the gravity of the provocation by reference to its own views of the case without proper deference to what the jury might have thought was the sting of the provocation from the viewpoint of the accused.

Thirdly, did the approach taken by the Court of Criminal Appeal, in particular at paragraph 144 of the judgment, conflate the question whether there was evidence raising the objective limb with whether the jury might ultimately have had a doubt about the applicant’s guilt and, if so, did this involve error.

The applicant also seeks to invoke the Court’s visitation jurisdiction. In relation to our first contention, in essence the applicant’s complaint is that the…

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 Michael Miller and the Queen

Details

AGLC: Michael Miller and the Queen [2020] HCATrans 111
Case: [2020] HCATrans 111
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Michael Miller, sought to challenge the decision of the Court of Criminal Appeal, which had dismissed his appeal against a conviction for murder. The core of the applicant's argument was that the Court of Criminal Appeal had erred in its assessment of whether the defence of provocation should have been left to the jury at his trial.

The legal issues before the High Court concerned the proper approach an intermediate appellate court should take when considering whether provocation evidence was sufficient to be left to a jury. Specifically, the applicant contended that the Court of Criminal Appeal had incorrectly engaged in selective fact-finding, rather than considering all the evidence most favourable to the applicant. Further, the applicant argued that the appellate court had wrongly substituted its own view on the gravity of the provocation, rather than assessing what a jury might have perceived as the "sting" of the conduct from the accused's perspective. The applicant also raised a question as to whether the appellate court had conflated the threshold question of whether the objective limb of provocation was raised with the ultimate question of the applicant's guilt.

The applicant's counsel argued that the Court of Criminal Appeal had failed to consider the evidence at its highest from the applicant's standpoint, citing instances where the court appeared to dilute the potential sting of the provocative conduct by introducing competing arguments or qualifications. This, it was submitted, was inconsistent with established authority requiring appellate courts to consider the "situation in its entirety" and to avoid substituting their own evaluative judgments for those a jury might make. The applicant's submissions emphasised that the appellate court's role was to identify the provocation matrix by isolating the most favourable evidence, not to engage in a fact-finding exercise or to determine the gravity of provocation based on its own views.

The respondent, the Queen, submitted that the Court of Criminal Appeal had correctly applied settled principles regarding the defence of provocation and the role of trial judges and appellate courts in determining whether the defence should be left to the jury. It was argued that the High Court's decision in *Lindsay v The Queen* did not alter these principles, and that the Court of Criminal Appeal's assessment involved a standard application of established law. The respondent contended that the appellate court's evaluation of the evidence, including the duration and nature of the incident, was a necessary part of determining whether a reasonable jury could conclude that the killing was unprovoked. The respondent argued that the case did not raise a question of general importance warranting special leave.

Orders