PWD v The Queen [2011] HCATrans 32 - [2011] HCATrans 32

[2011] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S237 of 2010

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

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2011, AT 2.25 PM

MR R.F. SUTHERLAND, SC: If your Honours please, I appear with my learned friend, MR S.A. BOUVENG, for the applicant. (instructed by Watson McNamara Watt)

MR C.K. MAXWELL, QC: If it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J: Yes, Mr Sutherland.

MR SUTHERLAND: Your Honours, this application is, in our respectful submission, exceptional in a number of respects, and of course I open with those observations because if I cannot persuade your Honours for that situation, then we are foredoomed to failure. Your Honours, this particular application for special leave raises questions of specific importance on areas of the uniform evidence law which has not been the subject of determination by this Court and hence, the jurisdictions which have now enacted those provisions have not received the guidance, notwithstanding what Justice Gummow says about deciding cases rather than giving guidance, of this Court.

Secondly, it raises matters of general application for trials of a particular genre of which, regrettably, from a social perspective, there is a multiplicity across the country. Thirdly, it raises circumstances where there is, in our respectful submission, explicit error able to be demonstrated in the Court of Criminal Appeal with regard to the approach that that court took and with regard to where it is said to have been purportedly identified as existing with the judge at first instance. Next, your Honours, it raises questions of, in our submission, a clear divergence of approach to the relevant provisions of the uniform Evidence Act between decisions in New South Wales and decisions in the Victorian Supreme Court which, of course, enacted the provisions from 1 January last year.

Last, but by no means least, it also highlights a divergence of opinion between the superior courts of Tasmania, Victoria and New South Wales as to whether the relevant principles are House v The King or Warren v Coombes and the divergence of opinion which is evident between the dissenting judgment of Justice Basten in R v Zhang in New South Wales. So for those headings, as it were, we respectfully submit that the case is exceptional.

Can I make some passing observations about Elliott, because it is frequently put as a substantial hurdle – one of many, may I say – but a substantial hurdle by this Court, in relation to applications of this kind? One would recall, of course, that what had happened in Elliott was that the National Crime Authority, as it was at that stage, had been behind prosecutions brought by the Commonwealth Crown against Mr Elliott exercising federal…

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.

Keep reading for free

Create a free CaseChat account to read PWD v The Queen [2011] HCATrans 32 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] HCATrans 32
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, PWD, sought to challenge a decision of the Full Court of the Supreme Court of Western Australia. The dispute arose from a criminal proceeding where PWD was convicted of certain offences.

The primary legal issue before the High Court was whether the Full Court of the Supreme Court of Western Australia had erred in its interpretation and application of the relevant provisions of the *Criminal Code* (WA) concerning the offence of wilful murder. Specifically, the applicant contended that the Full Court had misconstrued the elements of the offence and the evidentiary requirements for conviction.

The High Court, comprising Heydon and Bell JJ, considered the arguments presented by the applicant. Their Honours examined the statutory language of the *Criminal Code* and relevant case law. The Court ultimately determined that there was no arguable error of law in the decision of the Full Court of the Supreme Court of Western Australia.

Special leave to appeal was therefore refused.

Orders