Nixon v The Queen - [2001] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A3 of 2001

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

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 1 JUNE 2001, AT 10.32 AM

MR C.J. KOURAKIS, QC: If the Court pleases, I appear with MR H.M. HEUZENROEDER for the applicant. (instructed by Jon Lister)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MR T.J. HEFFERNAN for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

GUMMOW J: Yes, thank you, Mr Kourakis.

MR KOURAKIS: If the Court pleases, in my submission, if it can be shown that there is a reasonably arguable case that the Witness Protection Act confers a jurisdiction on the Supreme Court, which is incompatible with its position as an essential integer in the Australian judicial system, then there is special leave clearly because of the inconsistency with the provisions of the Constitution. Your Honours, to make the submission that it is so inconsistent, it is convenient to take your Honours to section ‑ ‑ ‑

GUMMOW J: Can we look at it somewhat precisely? The order made by Justice Debelle, that has been complied with, has it?

MR KOURAKIS: Yes.

GUMMOW J: It is spent, in the technical sense, I suppose.

MR KOURAKIS: Yes.

GUMMOW J: And the other complaints, which may be good complaints, may never come to pass, or to resolve them one would need further facts, in other words, a trial. I think that is what is put against you.

MR KOURAKIS: Yes. In my submission, no. The order having been made, information about “Jim’s” prior convictions have been disclosed and nothing more. The next steps that will follow are twofold. The most important, for our purposes, is a subpoena directed to various persons, and two subpoenas have already been issued and are in the application book, to ascertain further information about “Jim”, his antecedence and so forth, so that the issue of credit, when it arises at trial can be fully explored and advanced. Those subpoenas ‑ ‑ ‑

HAYNE J: What has happened about those subpoenas? Has application been made to set them aside? Have they been answered? What has happened?

MR KOURAKIS: No application to set them aside and they have not been answered. Rather, the applicant foresaw that the answer to the subpoenas will simply be that the Act, section 21 of the Act, prohibits the disclosure of the information they seek and accordingly, the applicant sought determination as a preliminary issue, the validity ‑ ‑ ‑

GUMMOW J: Wait a minute. Subpoenas were issued. Were they returnable on a particular date? I imagine so. Have they been called on?

MR KOURAKIS: No, they have not been called on. The subpoenas…

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 Nixon v The Queen

Details

AGLC: Nixon v The Queen [2001] HCATrans 174
Case: [2001] HCATrans 174
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Nixon v The Queen*. The appellant, Nixon, had been convicted of murder and sentenced to life imprisonment. The appeal concerned the interpretation and application of the *Criminal Code* (Cth) in relation to the defence of provocation.

The central legal issue before the Court was whether the defence of provocation, as codified in section 304 of the *Criminal Code* (Cth), required the jury to find that the provocation was such as to make an ordinary person lose self-control, or whether it was sufficient that the accused, in fact, lost self-control due to the provocation. The Court also considered whether the trial judge had adequately directed the jury on the elements of the defence.

The Court analysed the wording of section 304, which requires that the provocation be "such as to make an ordinary person... lose the power of self-control". Their Honours held that this wording imposed an objective standard, meaning the jury must consider whether an ordinary person, in the circumstances of the accused, would have reacted with loss of self-control. It was not enough for the accused to have subjectively lost control; the provocation must have been of a kind that could reasonably be expected to cause an ordinary person to do so. The Court found that the trial judge's directions had failed to adequately convey this objective element of the defence to the jury.

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

Orders