Papakosmas v The Queen - [1999] HCATrans 38

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S139 of 1998

B e t w e e n -
CHRISTOS PAPAKOSMAS
Appellant
and
THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MARCH 1999, AT 10.19 AM

MR G.P. CRADDOCK: May it please the Court, I appear with my learned friend, MR H.K. DHANJI, for the appellant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

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

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I seek leave to appear with my learned friends, MR P.A. JOHNSON, SC and MS G.L. EBBECK, for the Attorney‑General for the Commonwealth.

GLEESON CJ: Seeking to do what?

MR BENNETT: Seeking to intervene in the interests of the respondent for the purpose of making submissions on the lines of the submissions we have filed in relation to the Evidence Act. The State Act ‑ ‑ ‑

HAYNE J: Why should a person facing criminal prosecution face two forms of the Crown against his interests, Mr Solicitor?

MR BENNETT: Your Honour, first, one is the Crown in right of the State and one is the Crown in the right of the Commonwealth; secondly, there is no additional prejudice to counsel for the appellant in having aspects of the argument put by two counsel. The appellant is ably represented ‑ ‑ ‑

McHUGH J: That must mean you have got nothing to add to the State Crown’s argument.

MR BENNETT: No, your Honour. There are issues of importance which concern what ultimately will be a uniform Evidence Act ‑ ‑ ‑

McHUGH J: But you have got no interest in these proceedings. If you were allowed to intervene in these proceedings, then the Commonwealth ought to be allowed to intervene in any case where there is a question as to the construction of a statute, similar to a Commonwealth statute.

MR BENNETT: No, your Honour. The Evidence Act goes to the heart of the administration of justice which, of course, is the concern of the Attorney‑General.

GLEESON CJ: Mr Solicitor, there is a report of the Law Reform Commission which tells us in a single sentence what was intended in a case such as the present by the legislation in question. Is there anything that you could do to add to that?

MR BENNETT: Only in the way that one can always add to the written word by forensic argument. There are some authorities which need to be referred to. There are some submissions that need to be made. It may be, as in any intervention, that at the end of the respondent’s submissions I will have nothing…

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 Papakosmas v The Queen

Details

AGLC: Papakosmas v The Queen [1999] HCATrans 38
Case: [1999] HCATrans 38
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Papakosmas, against his conviction for murder. The applicant had been found guilty of the murder of his wife, who had been stabbed to death in their home. The central issue on appeal concerned the admissibility of certain evidence obtained from the applicant's home and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence that had been seized from the applicant's home without a warrant. Furthermore, the Court had to consider whether the jury had been adequately and correctly directed on the issue of self-defence, particularly in relation to the applicant's subjective belief as to the necessity of using force and the objective reasonableness of that belief.

The Court held that the search of the applicant's home and the seizure of evidence had been unlawful, as there was no warrant and no circumstances justifying an exception to the warrant requirement. Consequently, the evidence obtained should have been excluded. Regarding the self-defence direction, the Court found that while the trial judge had attempted to explain the relevant principles, the summing-up was confusing and likely to have misled the jury. The jury may not have fully appreciated that the applicant's subjective belief, even if mistaken, could be a defence if it was a reasonable belief in the circumstances.

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

Orders