Pavia v The Queen - [1995] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S36 of 1995

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

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 10.52 AM

MR M.A. GREEN, QC: May it please the Court, I appear with my learned friend, MR S.J. ODGERS, for the applicant. (instructed by De Luca‑Leonard)

MR N.R. COWDERY, QC: May it please the Court, I appear with my learned friend, MS M.F. LATHAM, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales ))

DAWSON J: Mr Green.

MR GREEN: Your Honours, this application arises from so-called expert evidence adduced to a jury at the applicant’s trial in which he was convicted of the manslaughter of his friend. The application centres on what we submit, of course, is the illegitimate admissibility of this expert evidence over the objection of his counsel at trial ‑ ‑ ‑

DAWSON J: Which particular evidence are you referring to?

MR GREEN: The palm print on the murder weapon, your Honour. It was common ground that the deceased was killed using a bar weight, a round weight from a barbell, gym equipment that he had on the premises and which had been used by both him and the applicant. On that bar weight, there was the palm print ‑ and there was no dispute about this, of course ‑ of the applicant and there was blood.

DAWSON J: There is no dispute about the admissibility of the actual evidence of the palm print itself, was there?

MR GREEN: No, there was not, no. But it did not end there, your Honours.

TOOHEY J: No, but could I just ask you this, Mr Green: is the proposition that there was no appropriate field of expertise involved or that there was such a field but the witness was not qualified to speak as an expert?

MR GREEN: There was no evidence that there was a field of expertise. There may well be out there somewhere, your Honours ‑ ‑ ‑

TOOHEY J: In answering that question, can you be more specific as to what you say is the area in which no expertise was called for?

MR GREEN: There was no evidence that there was a field of expertise and there was no evidence that the so‑called experts who gave evidence were equipped so to do.

DAWSON J: Let us get that quite straight. There would be no question that fingerprinting was a field of expertise, it has been ‑ ‑ ‑

MR GREEN: No question about that, at all.

DAWSON J: And what happened was that two police ‑ was it two?

MR GREEN: Yes.

DAWSON J: Police experts were called and they gave evidence in relation to the palm print. They also gave evidence of…

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 Pavia v The Queen

Details

AGLC: Pavia v The Queen [1995] HCATrans 230
Case: [1995] HCATrans 230
Decision Date

CaseChat Overview and Summary

The case of *Pavia v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Pavia, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Full Court of the Supreme Court of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the Full Court.

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 question was whether the judge's summing up had sufficiently explained that the provocation must be such as would have caused an ordinary person to lose self-control, and that the jury should consider whether the appellant's reaction was one that might have been expected of an ordinary person in his position.

The High Court, in allowing the appeal, held that the trial judge's directions on provocation were inadequate. Their Honours reasoned that the defence of provocation requires an objective element, namely that the provocation must be such as to cause an ordinary person to lose self-control. The jury must be instructed that they are to consider whether the provocation was sufficient to have that effect, and that the accused's reaction must be one that might have been expected of an ordinary person in his position. The judge's summing up had failed to adequately convey this objective standard, leaving the jury with an insufficient understanding of the defence.

Consequently, the High Court quashed the conviction for murder and ordered a new trial.

Orders