Ng v The Queen - [2002] HCATrans 549

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M148 of 2002

B e t w e e n -
PHILIP CHEE MING NG
Applicant
and
THE QUEEN
Respondent
Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 16 DECEMBER 2002, AT 10.07 AM

MR N.T. ROBINSON: If your Honour please, I appear on behalf of the Crown. (instructed by Director of Public Prosecutions, (Commonwealth))

MR A. McMONNIES: If it please the Court, I appear on behalf of the applicant. (instructed by Allan McMonnies)

MR C.J. HORAN: If the Court pleases, I appear, intervening on behalf of the State of Victoria. (instructed by the Victorian Government Solicitor)

MR ROBINSON: I seek, your Honour, orders expediting the application for special leave filed by the applicant Ng and asking for orders directing that this matter be heard with the matter of Fittock which has been ‑ ‑ ‑

HIS HONOUR: Now, what are we to do about the fact that the application for leave has this ground about sentence?

MR ROBINSON: Your Honour, yes, ground 8. The proposition that I would submit to your Honour is that it is I suppose open to this Court to refer only to – to expedite only grounds 1 through to 7, which would leave the sentence ground but it is submitted that ‑ ‑ ‑

HIS HONOUR: That then becomes awkward. Splitting a leave application becomes very cumbersome, I fear.

MR ROBINSON: That is so, your Honour, and the course that we would submit is that the entirety of the ground, including ground 8, be expedited.

HIS HONOUR: The difficulty is it will get swamped. We will be dealing with constitutional issues. That the leave on the sentence issue will inevitably be swamped or divert attention. Now, I am trying to devise some means where we could solve the problem. My identifying the problem is step one but identifying it leads to, “Well, yes, what’s the solution?”, and at the moment I cannot devise a solution that is terribly effective.

MR ROBINSON: Your Honour, the difficulty that the additional ground makes is, with respect, a matter that the Crown has recognised. Save the Court hiving it off in some fashion, with respect, there is no course that occurs to me that I submit to the Court. It is of little help obviously to your Honour that the Crown’s proposition that the facts do not support it. Obviously, it is a matter which will be pursued, and saying that does not assist.

HIS HONOUR: What is the advantage ‑ can I come at it from the other end?

MR ROBINSON: Yes.

HIS HONOUR: What advantage do we get by joining Ng with Fittock?

MR ROBINSON: Your Honour, one immediate one may be this. As I understand it, in the matter of Fittock the selection of the additional jurors, or the reserve jurors, was an order direct by…

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 Ng v The Queen

Details

AGLC: Ng v The Queen [2002] HCATrans 549
Case: [2002] HCATrans 549
Decision Date

CaseChat Overview and Summary

The applicant, Ng, sought special leave to appeal to the High Court of Australia against a decision of the Supreme Court of Victoria. The dispute concerned the applicant's conviction for murder and the subsequent dismissal of his appeal by the Victorian Court of Appeal.

The primary legal issue before the High Court was whether the applicant had been denied procedural fairness during his trial. Specifically, the applicant contended that the trial judge had erred in failing to direct the jury on the defence of provocation, and that this failure constituted a miscarriage of justice.

Hayne J, in chambers, considered whether there was a "reasonably arguable” ground of appeal. His Honour noted that the defence of provocation requires evidence that the act causing death was done in the heat of passion caused by adequate provocation, and that there was no cooling-off period. Applying this principle, Hayne J found that there was no evidence presented at trial that could have supported a finding of provocation. Therefore, the trial judge was not obliged to direct the jury on this defence.

Special leave to appeal was refused.

Orders