Paz v The Queen - [2018] HCATrans 148

[2018] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B3 of 2018

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

KIEFEL CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 AUGUST 2018, AT 9.31 AM

MR K.S. MACKENZIE: If it please the Court, my name is Mackenzie, I appear for the applicant, PAZ. (instructed by Mackenzie Mitchell Solicitors)

MR M.R. BYRNE, QC: If it please the Court, my name is Byrne, I appear for the respondent in the proceedings. (Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Mackenzie.

MR MACKENZIE: Your Honours, the main point the applicant makes in this application is that he was tried for offences for which he says he could not be punished. Principally, in support of that submission, he relies upon section 11 of the Criminal Code 1899 (Qld), and in particular upon paragraph (2).

BELL J: In that respect, the argument has somewhat been recrafted between the Court of Appeal and this application.

MR MACKENZIE: Yes. The thrust of the argument is the same, that a miscarriage of justice was afforded or a result of the trial of offences ‑ ‑ ‑

KIEFEL CJ: Mr Mackenzie, can I just interrupt you for a moment? Do you need an extension of time?

MR MACKENZIE: I do.

KIEFEL CJ: Is that opposed, Mr Byrne?

MR BYRNE: No, it is not, your Honour.

KIEFEL CJ: Yes, you have that extension.

MR MACKENZIE: Thank you. Although the applicant principally relies upon section 11(2), the submission is that that paragraph has to be read in the context of section 11 as a whole, the first paragraph of which provides that:

A person can not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.

The relevance of that to the second paragraph is the second paragraph simply talks about the law in force “at the time of the conviction”. It does not repeat the words “doing or omitting to do the act under the same circumstances” which appear in the first paragraph. But it is submitted that when that section is read as a whole, the law in force at the time of the conviction in the second paragraph is intended to refer to the law that would apply to an act or omission done under the same circumstances at the relevant time.

KIEFEL CJ: But the words of subsections (1) and (2) are quite different. They speak to different points in time.

MR MACKENZIE: They are two different points in time. The first paragraph…

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 Paz v The Queen

Details

AGLC: Paz v The Queen [2018] HCATrans 148
Case: [2018] HCATrans 148
Decision Date

CaseChat Overview and Summary

The case of *Paz v The Queen* concerned an appeal to the High Court of Australia by the applicant, Paz, against his conviction for murder. The dispute arose from Paz's assertion that the trial judge had erred in law by failing to direct the jury on the defence of provocation.

The central legal issue before the High Court was whether the evidence presented at trial was capable of supporting a finding that Paz had acted under provocation, thereby entitling him to a direction on that defence. This required the Court to consider the threshold for raising the defence of provocation and the nature of the evidence that would be sufficient to warrant such a direction to the jury.

Kiefel CJ and Bell J, in their joint judgment, reasoned that for a defence of provocation to be left to the jury, there must be some evidence, however slight, that the act of the accused was a response to a sudden or temporary loss of self-control caused by acts or words of the deceased. They found that the evidence in this case, when viewed in its entirety, did not reach that threshold. The acts and words relied upon by the applicant were not capable of being considered as constituting provocation in law, and therefore, the trial judge was not obliged to direct the jury on that defence.

The High Court dismissed the appeal, upholding the conviction.

Orders