Parker v The Queen - [2021] HCATrans 150

[2021] HCATrans 150

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S230 of 2020

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

KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 10 SEPTEMBER 2021, AT 2.45 PM

KEANE J: In accordance with the practice where the Court is sitting remotely, I will announce the appearance of the parties.

MR S.J. ODGERS, SC appears with MR T.F. WOODS for the applicant. (instructed by Just Defence Lawyers)

MS P. McDONALD, SC appears with MR S.T. FLOOD for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KEANE J: Yes, Mr Odgers.

MR ODGERS: Thank you, your Honours. There is an application to dispense with the applicable time limit and ‑ ‑ ‑

KEANE J: Is that opposed, Ms McDonald?

MS McDONALD: No, your Honour.

KEANE J: Very well, you have your extension, Mr Odgers.

MR ODGERS: Thank you, your Honour. The issue raised by this application is whether the prosecution did, in truth, rely upon coincidence reasoning to which section 98 of the Evidence Act applied. As your Honours no doubt appreciate, section 98(1) creates the coincidence rule which catches evidence that two or more events occurred to prove that a person did a particular act or had a particular state of mind by a process of reasoning that can be called “coincidence reasoning” or, using the language of the provision, “the improbability of coincidence reasoning”. I will return to that provision in a moment.

In this case the prosecution relied upon a number of similar or, to use the language of the Crown Prosecutor in addressing the jury, “consistent events” – a finding of similar bags on different dates, the finding of discarded bag tags in similar locations, the similarity in the applicant leaving the secure area of the airport after the arrival of a flight from Santiago on a number of occasions, to draw an inference supportive of the prosecution case.

The evidence of these similar events was summarised in a chart in exhibit A – and I understand your Honours have been provided with that chart. I am not going to take you to it but, in essence, it had a number of columns of different dates, within the columns various events occurring which were said to be consistent events by the Crown.

There is no issue that the evidence was admissible for a purpose other than coincidence reasoning, but it has always been accepted by the Crown that it could not also be used for coincidence reasoning because of the operation of section 95(1). That provision, just to remind your Honours, is at application book 121, and subsection (1) says:

Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is…

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: [2021] HCATrans 150
Decision Date

CaseChat Overview and Summary

In *Parker v The Queen*, the appellant, Parker, was convicted of murder in the Supreme Court of New South Wales. The Crown alleged that Parker had intentionally caused the death of the deceased. Parker appealed his conviction to the High Court of Australia.

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 appeal concerned the proper application of the test for provocation, which requires the jury to consider whether the act of killing was a response to a sudden or temporary loss of self-control induced by the deceased's conduct, and whether a reasonable person in the position of the accused might have reacted in the same or a similar way.

Gleeson J, delivering the judgment of the Court, held that the trial judge's summing up had been deficient. His Honour explained that the jury must be instructed that provocation can operate to reduce a charge of murder to manslaughter if it is established that the provocation was such as to cause an ordinary person to lose self-control and that the accused did, in fact, lose self-control. The jury must then consider whether the act of the accused was a response to that loss of self-control. The judge's direction had not sufficiently conveyed these elements, particularly the objective limb of the test, which requires consideration of how an ordinary person might have reacted.

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

Orders