Orman v The Queen [2011] HCATrans 18 - [2011] HCATrans 18

[2011] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M144 of 2010

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

GUMMOW J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 FEBRUARY 2011, AT 9.33 AM

MR R. RICHTER, QC: If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the applicant. (instructed by Galbally Rolfe)

MR J.D. McCARDLE, QC: If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions)

GUMMOW J: Yes, Mr Richter.

MR RICHTER: Thank you, your Honours. If the Court pleases, there is one matter that I would like to attend to before proceeding, and that is that the description in our outline of submissions of the defence case being “summarised at paragraph [48]” of the Court’s judgment stops there and it needs a little bit of clarification.

CRENNAN J: Sorry, where are you, Mr Richter?

MR RICHTER: I am looking at our outline of submissions at paragraph 2.2.

CRENNAN J: Thank you.

MR RICHTER: The last sentence of which says, “The defence case is summarised in paragraph [48]” of the Court of Appeal. Now, when one looks at paragraph 48 of the Court of Appeal’s judgment in fact it says no more than the following:

The applicant did not give evidence or call evidence and he made a no‑comment record of interview. His defence was that the jury could not exclude as a reasonable possibility that someone other than he drove the get‑away car, and that most probably it was Traglia.

The fact is the defence involved the non‑concession that it was Veniamin who killed Peirce and it is important to bear that in mind because the defence stressed that the jury would have to find beyond reasonable doubt that Veniamin did it in the face of a case in which it was not conceded by the defence, so it was a live issue and the jury had to find that Veniamin was the murderer before being able to even consider Faruk Orman’s case.

That being so, what we have done is we have provided the transcript of the opening address that I made at the trial. We have given our learned friends copies and I would like to pass up those copies to the Court because they put into context the way in which the matter was, in fact, fought. So it is important to understand in terms of our submissions that that was the way it was done because considerable emphasis is put by the Court of Appeal and, indeed, might be drawn to the notion that we in our opening in fact invited consideration of Veniamin’s propensities to be a killer, a professional killer ‑ ‑ ‑

CRENNAN J: Paragraph 81 of the…

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: [2011] HCATrans 18
Decision Date

CaseChat Overview and Summary

In *Orman v The Queen*, the High Court of Australia considered an appeal by the applicant, Orman, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of 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 direct the jury adequately on the defence of provocation. Specifically, the applicant argued that the jury should have been instructed that a "sudden or temporary loss of self-control" was not a necessary element of provocation, and that the judge's charge, by referring to such a loss of control, may have misled the jury into believing it was a prerequisite for establishing the defence.

The High Court, comprising Gummow, Crennan, and Kiefel JJ, allowed the appeal. Their Honours held that the trial judge's direction on provocation was indeed flawed. They reasoned that the defence of provocation does not require proof of a "sudden or temporary loss of self-control." Instead, the focus should be on whether the act causing death was a response to a provocation that would have caused an ordinary person to lose self-control and, in the case of a subjective element, whether the accused in fact lost self-control. The judge's emphasis on the suddenness or temporariness of the loss of control, rather than the objective and subjective elements of provocation, constituted a misdirection.

Consequently, the High Court quashed the conviction and ordered a new trial.

Orders