Quail v The Queen - [2015] HCATrans 233

[2015] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M24 of 2015

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

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 2015, AT 11.44 AM

MS C.A. BOSTON: May it please the Court, I appear on behalf of the applicant. (instructed by Haines & Polites)

MR G.J.C. SILBERT, QC: If your Honours please, I appear with my learned friend, MS S.A. FLYNN, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

KIEFEL J: Yes, Ms Boston.

MS BOSTON: In the absence of directions on accident and self‑defence, the practical effect of the judge’s charge was that if the jury was satisfied beyond reasonable doubt that the applicant took the pistol to the scene, he was guilty of attempted murder. As Justice Priest observed in dissent on appeal, the learned trial judge’s attempts to crystallise the central issues in the case for the jury instead unacceptably skewered them. Accident and self‑defence were both raised by the evidence even should the jury conclude that the applicant brought the pistol to the scene and those questions, the so‑called available defence scenarios, were therefore required to be left to the jury’s consideration.

Now, the term “accident” is a little bit ambiguous. Sometimes it is used to describe an absence of mens rea. The way it is used here, though, the more usual way, is that it describes the element attaching to all offences that the actus reus be conscious, voluntary and deliberate. Although, as a matter of shorthand I will refer to self‑defence and accident as defences, of course, strictly speaking they are not. Rather, they are elements of the offence which the prosecution must prove beyond reasonable doubt once the issue is raised by the evidence.

The test is the same for the trial judge and on appeal, namely – and this is from the cases in the table of authorities - but on the version of events most favourable to the accused, taking the evidence at its highest, might the evidence induce a reasonable doubt in a reasonable jury as to whether the applicant discharged a pistol voluntarily, consciously and deliberately.

KIEFEL J: Is that what you rely upon to identify a defence of accident?

MS BOSTON: Yes, your Honour, that is the test which applied both to the trial judge and applied at appeal, your Honour.

KIEFEL J: But the evidence was that the two men were fighting.

MS BOSTON: Yes, your Honour, there were various pieces of evidence and the evidence giving rise to accident. There was the applicant’s evidence that the pistol discharged in the struggle, in the fight. There was the chaotic circumstance in which the fight occurred. There was the fact that the trigger pull, which is the pressure required to discharge the pistol, was…

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.

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Details

Case: [2015] HCATrans 233
Decision Date

CaseChat Overview and Summary

The case of *Quail v The Queen* concerned an appeal to the High Court of Australia by the applicant, Quail, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and, if so, whether this error had occasioned a substantial miscarriage of justice. A further issue was whether the trial judge had adequately directed the jury on the limited use to which they could put the evidence of prior convictions.

Kiefel and Gordon JJ held that the admission of the evidence of prior convictions was an error, as it was not relevant to any issue in the trial and was likely to have prejudiced the jury against the applicant. Their Honours found that the judge's directions to the jury were insufficient to mitigate this prejudice. Consequently, the Court concluded that a substantial miscarriage of justice had occurred.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders