Parsons v The Queen

[2000] HCATrans 541

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 2000

B e t w e e n -

ROBERT CLIVE PARSONS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 28 NOVEMBER 2000, AT 2.44 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:  If the Court pleases, I appear with my learned friend, MR I.R. PORTER, for the applicant.  (instructed by Kuek & Associates)

MR P.A. COGHLAN, QC:   If it please the Court, I appear with my learned friend, MS K.E. JUDD, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GAUDRON J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, I would first seek leave to rely on an amended outline of argument.

GAUDRON J:   Yes.  We received that a day or so ago, I think.

MR NASH:   The applicant’s case really amounts to this, in a nutshell, that when in Masciantonio, or perhaps it was in Stingel, the Court finally came to the view, or expressed the view, that the objective test in provocation was to be determined, not by what an ordinary person would do, but by what an ordinary person could do.  This changed the role of the judge and jury.  This is not adverted to in any of the cases, appears never to have been argued and there are decisions since Stingel and Masciantonio in which the dicta are clearly against the propositions we are putting to the Court, but our argument really amounts to this:  if it is the jury’s function to decide what an ordinary person could do, then the trial judge cannot say, “I know that no reasonable jury could find that an ordinary person could do this”.

It is equivalent to the argument that was put, or the fallacy that was mentioned by Mr Justice Evatt in Davis v Bunn (1936) 56 CLR and which amounted to this, “I know that the defendant has not behaved unreasonably.  Any other person ought to have the same view.  Therefore, people who think he has behaved unreasonably are unreasonable”.  It is the inverse of that.  What has really happened, in our submission, is quite simply that the law as to the fact that the jury must find has changed and no one has adverted to the fact ‑ ‑ ‑

GAUDRON J:   And so your proposition is that provocation must be left to the jury in every case in which the words “I was provoked” are uttered?

MR NASH:   No, your Honour, because the trial judge, in our submission, still has power to take it away from the jury in respect of the evidence before the court in relation to whether there was a provocative act and whether the ‑ ‑ ‑

GAUDRON J:   Well, why would we think there was one here?

MR NASH:   There was evidence of a provocative ‑ ‑ ‑

GAUDRON J:   There was evidence that the deceased smiled.  Is that right?

MR NASH:   The deceased smiled, made a gesture and said, I think the words were, “I’ve got you, you bastard”, and that is a paraphrase.  There may be one or two other words included.  It may be, “I’ve now got you, you bastard”.  But the reason the matter was taken away from the jury and the reason given by the trial judge for taking it away from the jury and the reasoning of the Court of Appeal both turn on the question of, “Could an ordinary person have reacted as the defendant did?”, and I paraphrase it ‑ ‑ ‑

GAUDRON J:   To that provocative act?

MR NASH:   To that provocative act.

GAUDRON J:   Yes.  Alleged provocative act?

MR NASH:   Yes.

GAUDRON J:   Yes.

MR NASH:   And we say that is a question for the jury.

GAUDRON J:   So the only matter that is for the trial judge is whether there was evidence of a provocative act?

MR NASH:   Evidence of a provocative act and evidence of loss of ‑ ‑ ‑

GAUDRON J:   So in any case in which somebody says, “Such‑and‑such happened and I was thereby provoked”, it is a jury matter entirely?

MR NASH:   I am reluctant to follow your Honour down that path because I know where it leads, but we are not necessarily saying that.  What we are saying is this may be a case where the matter should have been taken from the jury on the evidence in relation to ‑ one could say there was not a scintilla of evidence.  I am not saying there was not, but it might have been taken away on that ground.  It might have been taken away on the ground that there was not evidence of loss of self‑control, although on the facts of this case there seems to have been a considerable loss of self‑control.

What we say is that in this particular case it was taken away from the jury on a ground that was not valid because it was for the jury to decide what an ordinary person could do.  Now, as I said at the beginning, this is a

matter that has not been canvassed.  It is a matter, we submit, of significance and of importance.

GAUDRON J:   And the point was not taken in those terms, of course, below.

MR NASH:   No, your Honour.  It was not taken until the redrafted outline of argument.

GAUDRON J:   Yes.

MR NASH:   In relation to the other question that may be relevant, the question of the proviso, we say that if the matter should have been left to the jury and was not, then the proviso does not apply because, as Justice McHugh said in Green’s Case 191 CLR, I think it is at 371 to 372, if you do not get trial according to law, if provocation is taken away when it should not be, then, of course, the proviso does not apply.  If the Court pleases, I have said all ‑ ‑ ‑

GAUDRON J:   You need an extension of time, do you not?  Is the application not out of time?

MR NASH:   I am sorry, your Honour.

GAUDRON J:   I think only by a day.

MR NASH:   In that case, your Honour, I would ask for leave for an extension.

GAUDRON J:   Yes.  I presume that is not opposed, Mr Coghlan?

MR COGHLAN:   That is not opposed.

GAUDRON J:   No, thank you.

MR NASH:   I had not realised, your Honour.  If the Court pleases, they are the submissions on behalf of the applicant.

GAUDRON J:   Thank you, Mr Nash.  We need not trouble you, Mr Coghlan.

In this matter time will be extended for the bringing of the application for special leave to appeal.

However, the Court is satisfied that the applicant’s conviction does not involve any miscarriage of justice and we are also satisfied, although we have heard no argument on it, that no error of sentencing principle is revealed with respect to the sentence which was the subject of an application for special leave.  Did you want to say anything about that further?

MR NASH:   No, your Honour.

GAUDRON J:   No.  In that case the order is special leave is refused.

The Court will now adjourn to reconstitute.

AT 2.53 PM THE MATTER WAS CONCLUDED