Murray v The Queen - [2002] HCATrans 41

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane- No B2 of 2001

B e t w e e n -
WILLIAM JOHN MURRAY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 FEBRUARY 2002, AT 2.01 PM

MR A.J. RAFTER: If it please the Court, I appear for the applicant. (instructed by Dearden Lawyers)

MS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by the instructed by the Director of Public Prosecutions (Queensland))

MR RAFTER: Your Honours, this case requires an extension of time. The circumstances explaining the delay in filing the application are contained in the application book. There is an additional affidavit referred to in the affidavit contained in the book at pages 56 to 66 that is not actually contained in the book. It is an affidavit sworn 28 November. I have copies of that affidavit for your Honours.

GAUDRON J: No, we do not need to trouble you on the extension of time, Mr Rafter.

MR RAFTER: Thank you, your Honour. Your Honours, the principal authority relied upon before the Court of Appeal, but not referred to in either the joint judgment or the dissenting judgment of Mr Justice McPherson was R v Guise 101 A Crim R 143. My submission is that the facts of this case and the principle underlying the point sought to be agitated, or the principle ‑ ‑ ‑

GAUDRON J: You say “the point sought to be agitated”. The draft notice of appeal contains many points.

MR RAFTER: Yes, but the material was prepared by the applicant himself from prison, as the material would tend to indicate. I have prepared an amended draft notice of appeal to reflect grounds that would include only the section 23(1)(a) point and the onus of proof point, which was the point upon which the court was divided. If it becomes necessary to do so, I can ‑ ‑ ‑

GAUDRON J: Are those points related? In a sense they are.

MR RAFTER: In a sense they are. In a sense they are, in my respectful submission. As I submitted earlier, the principal authority was Guise, which I submit is practically indistinguishable from the present case.

GAUDRON J: Do we have that?

MR RAFTER: I have provided that with the list of authorities. Can I just make these observations in respect of the reported decision in Guise. In the headnote it indicates that Mr Justice Pincus and Mr Justice Lee made certain findings. In fact the headnote is erroneous because, as one can see, if one looks to the final page, 151, Mr Justice Lee actually agreed with Mr Justice Ambrose. The significance of that is that, although all members of the court agreed in the result, Mr Justice Pincus and Mr Justice Ambrose arrived at the result by different means.…

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 Murray v The Queen

Details

AGLC: Murray v The Queen [2002] HCATrans 41
Case: [2002] HCATrans 41
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Murray, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the applicant had remained silent when questioned by police after being cautioned. Further, the Court had to consider whether the jury had been adequately directed on the issue of self-defence, particularly in relation to the applicant's subjective belief as to the necessity of using force.

The Court held that the admission of evidence of the applicant's silence after caution was an error. It was established that a person cautioned under the relevant legislation has a right to remain silent, and evidence of that silence should not be admitted as it could be unfairly prejudicial. Regarding self-defence, the Court reiterated that the jury must consider the circumstances as the accused believed them to be, and then determine whether the force used was a reasonable response to that perceived threat. The subjective belief of the accused is paramount, though the reasonableness of the response is assessed objectively against those believed circumstances.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders