Pantoja v The Queen - [1999] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S190 of 1998

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

GLEESON CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 2.20 PM

MR P. BYRNE, SC: May it please the Court, I appear with my learned friend, MR J.S. STRATTON, in this matter. (instructed by Andrews Solicitors)

MR A.M. BLACKMORE: May it please the Court, I appear with my learned friend, MR R.D. ELLIS, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Thank you, your Honours. This application raises two issues of which it is contended are of importance in the administration of the criminal law. The first concerns a question of the interpretation of the Evidence Act of New South Wales, and in particular the application of section 38 of that Act. The second matter concerns the proof of motive in criminal cases.

In relation to the first issue. This is, perhaps, another of a series of cases where the application of section 38 has caused concern. The particular matter which arises for consideration in this case is whether it is permissible to rely on the provisions of section 38 to allow the Crown to further cross‑examine a witness after that witness has been cross‑examined by the Crown’s opponent. The question perhaps might be put another way: whether section 38 of the Evidence Act can be legitimately used as a device to effectively nullify the effect of a cross‑examination which is favourable to an accused person in a criminal trial.

GLEESON CJ: But is this a question of the construction of section 38?

MR BYRNE: Not so much, perhaps, its construction, but its application to the circumstances of this case which, it is submitted, are not circumstances which are necessarily particularly unusual.

GLEESON CJ: So, the submission is that the trial judge erred in his discretion to permit cross‑examination or admit questioning as though the party were cross‑examining the witness.

MR BYRNE: It is our submission that that is not so much a question of discretion. The submission that is put on behalf of the applicant is that the provisions of section 38 should not be permitted to be resorted to, to enable the Crown to further cross‑examine a witness after that witness’s cross‑examination has been completed, particularly in circumstances where it has been completed favourably to the accused person.

GLEESON CJ: This is not some limitation on the words of section 38 or on the power granted by section 38. It must therefore be a limitation on the discretion that is granted.

MR BYRNE: The words of section 38, in our submission, should not be, as it were, interpreted – I appreciate the specific words may be given the meaning which…

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 Pantoja v The Queen

Details

AGLC: Pantoja v The Queen [1999] HCATrans 432
Case: [1999] HCATrans 432
Decision Date

CaseChat Overview and Summary

The case of *Pantoja v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Pantoja, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

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 court had to consider whether the evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The High Court, comprising Gleeson CJ, McHugh and Kirby JJ, examined the evidence in detail to determine if there was any material upon which a jury could have found that the appellant's actions were a response to provocation. The judges considered the nature of the alleged provocation, the appellant's state of mind, and the temporal connection between the provocation and the fatal act. They applied the principles established in *Stingel v The Queen* and *Osland v The Queen*, which require a judge to leave the defence of provocation to the jury if there is any evidence, however weak, that could support it. The court found that the evidence did not, as a matter of law, support a finding of provocation.

The High Court therefore dismissed the appeal, upholding the decision of the Court of Criminal Appeal and confirming the appellant's conviction for murder.

Orders