Muslimin v The Queen - [2009] HCATrans 240

[2009] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D9 of 2009

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

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO DARWIN

ON FRIDAY, 2 OCTOBER 2009, AT 9.31 AM

MR A. WYVILL: If it please the Court, I appear for the applicant. (instructed by Northern Territory Legal Aid Commission)

MR P.A. WILLEE, QC: If the Court pleases, I appear with my learned friend, MS L.A. TAYLOR, for the respondent. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Yes, Mr Wyvill.

MR WYVILL: Your Honours, may I deal with this application in two parts: firstly the merits of the appeal and, secondly, the reasons why this Court ought to hear the appeal. Firstly, in relation to the merits of the appeal, your Honours will have noted that this case concerns two related but distinct sets of extraterritorial sovereign rights granted under UNCLOS. The first is Part V, the exclusive economic zone, and the second is Part VI concerning the continental shelf, most relevantly here, resource rights in relation to sedentary species on the seabed.

Your Honours will probably be aware that both sovereignties are limited under international law to exploring and exploiting resources, relevantly here, living resources, and sit side by side with the qualified freedom of navigation enjoyed by all nations referred to in Article 87.

FRENCH CJ: Mr Wyvill, we are concerned, are we not, with a prosecution for a contravention of a statute?

MR WYVILL: Yes, we are, your Honour.

FRENCH CJ: Yes, are you going to take us to a basis for the grant of special leave by reference to the statutory provisions under which your client has been prosecuted.

MR WYVILL: I will, your Honour, yes, but I would like ‑ ‑ ‑

FRENCH CJ: I think broad discussions about sovereignty are not going to get us to that.

MR WYVILL: I understand that, your Honour, but it is important for your Honours to understand how the international law operates in the background here. I will be very brief.

HAYNE J: No, it is not, it is important for us to begin with the statute, then whether we get some assistance for construing the statute out of international law may be a separate question, but we begin in the Act, do we not?

MR WYVILL: Thank you, your Honours, and with your Honours’ indication helpfully I will go straight to the legislation. Would your Honours look at section 12(1) first? That provision gives the Governor‑General the power to certify which species fall within and without sedentary species for the purpose of the legislation, and your Honours will note ‑ ‑ ‑

FRENCH CJ: Well, that picks up bêche‑de‑mer and there has been a declaration, we are aware of that.

MR WYVILL: Yes, your Honour,…

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.

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Details

Case: [2009] HCATrans 240
Decision Date

CaseChat Overview and Summary

In *Muslimin v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Mr. Muslimin, had been found guilty of murder by a jury in the Supreme Court of Victoria and sentenced to a term of imprisonment. The appeal to the High Court concerned the interpretation and application of the defence of provocation under Victorian law.

The central legal issue before the High Court was whether the defence of provocation, as defined by section 322 of the *Crimes Act 1958* (Vic), had been established by the evidence. Specifically, the court had to determine whether the jury had been correctly directed on the elements of provocation, particularly concerning the requirement that the provocation must be such as to cause an ordinary person to lose self-control and act as the accused did. This involved considering the subjective and objective elements of the defence.

The High Court analysed the evidence presented at trial and the judge's directions to the jury. Their Honours noted that the defence of provocation requires that the act of the deceased must have been such as to cause an ordinary person to lose self-control and that the accused did, in fact, lose self-control and kill the deceased in consequence of that provocation. The court found that the jury's verdict indicated they had not been satisfied that the objective element of provocation had been met, meaning the conduct of the deceased was not of a kind that would cause an ordinary person to lose self-control.

The appeal was dismissed, with the High Court upholding the conviction for murder.

Orders