Morton v The Queen - [2021] HCATrans 25

[2021] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D3 of 2020

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

BELL J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 10.43 AM

MR S.J. ODGERS, SC with MR A.E. ABAYASEKARA appears for the applicant. (instructed by Northern Territory Legal Aid Commission)

MR M.W. NATHAN, SC with MR D.M. CASTOR appears for the respondent. (instructed by Director of Public Prosecutions (NT))

BELL J: Mr Odgers.

MR ODGERS: Thank you, your Honour. In 2019, in this Court’s decision in De Silva, the position was considered where there was a risk that a jury would reason that if evidence of an accused in his or her record of interview was not accepted, it should be put to one side and not taken into account when considering whether the prosecution had proved guilt beyond reasonable doubt.

This Court accepted that if there was a real risk that a jury would reason in that way, a direction should be given that, even if the evidence was not positively believed, the evidence should still be taken into account if it might be correct. That reflects the proposition that if evidence creates a reasonable possibility that the accused is not guilty, the accused must be given the benefit of that doubt.

We submit that in the present case there was a real risk – not removed by the general directions on the burden and standard of proof – of the jury being misled in this way by being told by the judge – at application book 25 – that it was a matter for them to determine what they accepted of the applicant’s account and what they did not accept. Your Honours will see at application book 25, at line 20, the line:

It’s a matter for you to determine what you accept and what you don’t accept.

Then, about four lines down:

So you must decide for yourselves . . . was he telling you the truth or was he not –

Those directions were given in the context of a general direction, at page 12 – if I can just take you to page 12 of the application book. At the bottom of the page there is a reference to:

the evidence of a witness and indeed this includes the record of interview of Mr Morton, you do not have to accept the whole of the evidence. You can accept the whole of the evidence and you can reject the whole of the evidence. But you may think that some of it is accurate and some of it is not accurate. It really is a matter for you what you accept from the evidence of each of the individual witnesses.

Then, importantly, in the next paragraph, in the second sentence:

The mere fact…

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 Morton v The Queen

Details

AGLC: Morton v The Queen [2021] HCATrans 25
Case: [2021] HCATrans 25
Decision Date

CaseChat Overview and Summary

In *Morton v The Queen*, the appellant, Morton, was convicted of murder following a trial in the Supreme Court of Queensland. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the Court of Appeal of Queensland were whether the trial judge erred in admitting evidence of the appellant's prior convictions and whether the judge's directions to the jury on the issue of self-defence were adequate. The court also considered whether the cumulative effect of certain alleged errors rendered the trial unfair.

Bell and Steward JJ applied established principles regarding the admissibility of evidence of prior convictions, noting that such evidence is generally inadmissible unless it has a specific relevance beyond merely showing a propensity to commit crime. They found that the evidence in question was relevant to the appellant's state of mind and intent at the time of the offence, and therefore its admission was not an error. Regarding the self-defence directions, the court reviewed the evidence and the judge's charge, concluding that the jury had been properly instructed on the relevant legal tests. The court held that, viewed in its entirety, the trial was conducted fairly and that no substantial miscarriage of justice had occurred.

The appeal was dismissed.

Orders