Parsons v the Queen M22/2000 - [2000] HCATrans 729

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

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 ‑ ‑ ‑

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 Parsons v the Queen M22/2000

Details

AGLC: Parsons v the Queen M22/2000 [2000] HCATrans 729
Case: [2000] HCATrans 729
Decision Date: 28 November 2000

CaseChat Overview and Summary

In *Parsons v the Queen*, the High Court of Australia considered an appeal by the applicant, Parsons, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial proceedings.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence obtained from the applicant following his arrest, specifically statements made by him. This raised questions concerning the application of the common law exclusionary rule, which permits the exclusion of evidence obtained improperly or in contravention of the law, and the proper exercise of discretion by the trial judge in admitting such evidence. The court also considered whether the admission of this evidence had rendered the trial unfair.

Gaudron and Callinan JJ, in their joint judgment, analysed the circumstances surrounding the applicant's arrest and the subsequent questioning. They affirmed that the common law exclusionary rule is not absolute and that a trial judge has a discretion to admit evidence even if it has been improperly obtained, provided that the probative value of the evidence outweighs its prejudicial effect. Their Honours found that the trial judge had properly exercised this discretion, concluding that the evidence was admissible and that its admission did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders