Moseley v The Queen - [2013] HCATrans 237

[2013] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D1 of 2013

B e t w e e n -
NEIL MOSELEY
Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 11 OCTOBER 2013, AT 9.34 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR E.P. AUGHTERSON, for the applicant. (instructed by Ward Keller Lawyers)

MR M.P. GRANT, QC, Solicitor-General for the Northern Territory: May it please the Court, I appear with my learned friend, MR C.A. SMYTH, for the respondent. (instructed by Solicitor for the Northern Territory)

FRENCH CJ: We might be assisted by hearing first from the Solicitor‑General as to why special leave should not be granted.

MR GRANT: Your Honours, what we concede in the first two paragraphs of our summary of argument is that it might be said that this case is one which carries some public importance in that it is a novel situation, we do not have any authoritative determination ‑ ‑ ‑

CRENNAN J: You have not found any case where a rescission of a perfected judgment has been ordered in favour of a State party?

MR GRANT: No, not in the context of a criminal appeal. Certainly, there have been judicial review applications where criminal decisions in the lower courts have been impugned on that sort of process, but not in this particular case. Your Honours, we should not be mistaken in our concession. It extends only to the matters which are raised at paragraph 2.1 of the draft notice of appeal, not to those matters at 2.2 to 2.5 of the draft notice of appeal dealing with whether, in the event that the Court does in fact have jurisdiction, the matter is appropriately dealt with.

CRENNAN J: The retrial was ordered on 7 June 2012, and here we are having a debate about special leave in relation to an interlocutory application.

MR GRANT: Yes.

CRENNAN J: It is rather difficult to appreciate why a retrial would not be an appropriate course of action.

MR GRANT: Your Honour, simply because the fraud would be perfected and effectuated, we say, if there was a retrial because by reason of its occurrence, assuming there was a fraud as we had been for the purpose of this proceeding that, in itself, gives occasion for reasonable doubt. Which is why, your Honours, when these matters are being considered in other contexts the question of whether a decision should be rescinded on the basis of fraud, the courts have taken the view that the fraud is tried alone so that ‑ ‑ ‑

CRENNAN J: Well, that is right but the remedy often in the equitable jurisdiction was to order a retrial, in any event. I am talking about the civil…

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 Moseley v The Queen

Details

AGLC: Moseley v The Queen [2013] HCATrans 237
Case: [2013] HCATrans 237
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Moseley against his conviction for murder. The dispute concerned the interpretation and application of the defence of provocation under section 304 of the *Criminal Code* (Qld).

The central legal issue before the High Court was whether the defence of provocation, as defined in section 304 of the *Criminal Code*, required the act of provocation to be unlawful. Specifically, the Court had to determine if the jury had been correctly instructed on this point, and if any misdirection had led to a miscarriage of justice.

The Court reasoned that the ordinary meaning of "provocation" in the context of criminal law does not necessitate that the act of provocation be unlawful. Instead, it requires that the act be such as would cause an ordinary person to lose self-control and that it did, in fact, cause the accused to lose self-control, leading to the fatal act. The Court found that the trial judge's directions to the jury, which suggested that the provocation must be unlawful, were erroneous. This misdirection was considered significant enough to constitute a miscarriage of justice, as it may have prevented the jury from properly considering the defence.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders