Nicholson v The Queen - [1995] HCATrans 62

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H18 of 1994

B e t w e e n -

WAYNE RICHARD NICHOLSON

Applicant

and
HER MAJESTY THE QUEEN

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 10.17 AM

MR H.J. KABLE, QC: May it please the Court, together with MR P.G. WOOD, I appear for the applicant. (instructed by Piggott Wood & Baker)

MR D.J. BUGG, QC: If the Court pleases, I appear with my learned friend, MR J.N. PERKS, for the respondent. (instructed by D.J. Bugg, QC, Director of Public Prosecutions (Tasmania))

MR KABLE: May it please the Court, as to the first question, which is the role of the jury, a reading of the written outlines of argument disclose that there are competing submissions to your Honours as to whether the case at hand, that is Nicholson, is in conflict with the majority decision in Haas v The Queen (1964) Tas SR 1, which was decided by the Court of Criminal Appeal in 1964. The Crown suggests that the present case is not in conflict with that decision; we say it is, and I go straight to that issue and take your Honours to the judgment of Justice Crisp in Haas and to the passage of his Honour’s judgment commencing at the bottom of page 24 in the paragraph commencing, “Hence in a charge of attempt”, and particularly over the page at page 25 where his Honour states:

More shortly put, it is whether the conduct complained of if continued or persisted in according to its tenor, assuming it was pursued, can be said to be consistent with no other result.

There, his Honour was dealing with the direction to the jury. He then comes to deal with what is the role of the jury.

If it can not, then, provided the requisite intention is found as a fact, and subject to the empirical judgment involved in the negative criterion exercised legally of remoteness -

parenthetically, section 2(4) -

it can be an attempt, but that involves a finding of the jury.
This I think is in accord with the balance of authority - an opinion which I utter with more confidence since the opinion of the Court of Criminal Appeal in Reg. v. Cook has become available.

So his Honour does not interpret section 2(4), we would say, in the way that the court has in the present case.

Mr Justice Neasey, at pages 28 and 29 in the same case dealt with the same issue. I particularly take your Honours to page 29. His Honour, at the top of that page, set out his Honour’s views as to the test for remoteness to be applied and then, in the paragraph commencing “Crisp J. in Reg. v. Catlin”, towards the bottom of that paragraph his…

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 Nicholson v The Queen

Details

AGLC: Nicholson v The Queen [1995] HCATrans 62
Case: [1995] HCATrans 62
Decision Date

CaseChat Overview and Summary

In *Nicholson v The Queen*, the High Court of Australia considered an appeal by the applicant, Nicholson, against his conviction for murder. The applicant had been found guilty by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Criminal Appeal of Queensland, which dismissed his appeal. The matter then proceeded to the High Court.

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 defence of provocation. Specifically, the court had to determine if the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to cause an ordinary person to lose self-control, and the subjective elements, namely whether the applicant himself had in fact lost self-control.

Deane and Gaudron JJ, in their joint judgment, found that the trial judge's summing up had been deficient in its explanation of the objective test for provocation. They held that the jury had not been sufficiently guided to consider whether the provocation was of a kind that could have caused an ordinary person to act as the applicant did. The judges emphasised that for the defence of provocation to succeed, it must be established that the provocation was sufficient to cause an ordinary person to lose self-control, and that the accused person did, in fact, lose self-control as a result of that provocation. The failure to properly articulate this dual test meant that the jury may not have properly considered the available defence.

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

Orders