Muldrock v The Queen [2011] HCATrans 55

The High Court of Australia heard an application for special leave to appeal in the matter of *Muldrock v The Queen*. The applicant, Muldrock, sought leave to appeal against a decision of the Supreme Court of Queensland (Court of Appeal) which had dismissed his appeal against his conviction for a number of offences, including unlawful use of a motor vehicle and dangerous operation of a motor vehicle.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the element of "dishonesty" in relation to the offence of unlawful use of a motor vehicle, as defined by section 408A of the *Criminal Code* (Qld). Muldrock contended that the jury should have been instructed that dishonesty required a finding that the accused acted contrary to the accepted standards of honest persons.

The High Court granted special leave to appeal. French CJ, Gummow and Kiefel JJ indicated that the appeal would be allowed and the conviction for unlawful use of a motor vehicle quashed. Their Honours reasoned that the trial judge's direction on dishonesty was insufficient, as it did not adequately convey the objective standard required by the offence. The Court noted that the jury had not been properly instructed that they must consider whether the applicant's belief that he had a right to use the vehicle was one that an honest person would have held in the circumstances. The Court found that the error in direction was not insignificant and could not be overcome by other aspects of the summing up.

The High Court ordered that the appeal be allowed, the conviction for unlawful use of a motor vehicle be quashed, and that Muldrock be discharged from that conviction. The Court remitted the matter to the Supreme Court of Queensland for a determination on whether a retrial should be ordered for the dangerous operation of a motor vehicle offence.