R v Edwards & Anor - [2008] HCATrans 407

[2008] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H3 of 2008

B e t w e e n -
THE QUEEN
Applicant
and
PETER MAXWELL EDWARDS
First Respondent
STEPHEN SARUNIC
Second Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART

ON FRIDAY, 5 DECEMBER 2008, AT 9.31 AM

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR I.M. ARENDT, for the applicant. (instructed by Director of Public Prosecutions (Cth))

MR P.G. GARLING, SC: May it please the Court, I appear with my learned friends, MR J.M. MORRIS and MR B.A.P. KELLEHER, for both respondents. (instructed by Deacons Lawyers)

HAYNE J: Yes, Ms Abraham.

MS ABRAHAM: Your Honour, this application raises the question of the proper approach to the determination of an application for a stay in a criminal trial for an abuse of process where that application is focused on the destruction or absence of evidence.

HAYNE J: What is the evidence that is said to have been destroyed or is absent? There is the cockpit voice recording and other such data, but that went about 15 days after the alleged incident, did it not?

MS ABRAHAM: Yes, there are three items of evidence. The voice recording was gone within 30 minutes, so I do not believe anyone has any complaint about that, the plane having had landed by the time that had been overridden. The monitoring list at the airport, which is an optional list, only keeps 13 activations and would have been gone in 24 hours. The data recording from the cockpit – what is referred to in the papers as the FDR – 14 days, and so it was gone at the outset. Whilst his Honour in this case linked this and put it with the factor of delay, this being the destruction, the absence of the evidence has nothing to do with the question of delay.

In the applicant’s submission, this is a matter of general importance because in this instance his Honour applied the wrong test in reaching the conclusion he did, but in so doing, it is against a background where there are a number of decisions in a number of States which, when the application appears to be focused on the destruction of evidence, they formulate particular tests. This test, if it is allowed to stand, in the Crown’s submission, is patently wrong.

HAYNE J: Where do you say that test is and most conveniently found?

MS ABRAHAM: Paragraph 59 on application book 18:

The test to be applied is whether the combination of loss of primary data or evidence –

Your Honours can see that first sentence.

HAYNE J: What is the error?

MS ABRAHAM: In my submission, it is not sufficient that it could constitute unacceptable injustice or unfairness. The authorities, Jago,

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: [2008] HCATrans 407
Decision Date

CaseChat Overview and Summary

In *R v Edwards & Anor*, the High Court of Australia considered an appeal against a conviction for murder. The appellants, Edwards and another, had been found guilty of murder by a jury in the Supreme Court of Victoria. The Crown alleged that the appellants had acted together in a joint criminal enterprise to cause the death of the victim.

The central legal issue before the High Court was whether the trial judge had erred in law in directing the jury regarding the elements of murder, particularly in relation to the concept of intent. Specifically, the court had to determine if the jury had been adequately instructed on the requirement for the prosecution to prove that the accused intended to kill or cause grievous bodily harm, or if recklessness as to the victim's death was sufficient for a murder conviction in the circumstances.

The High Court reasoned that the common law offence of murder requires proof of an intention to kill or an intention to cause grievous bodily harm. While recklessness as to death may suffice for a conviction for manslaughter, it does not meet the higher threshold for murder. The court found that the jury directions at trial, when read as a whole, may have led the jury to believe that recklessness was a sufficient basis for a murder conviction. Consequently, the court concluded that there had been a misdirection on a crucial element of the offence.

The High Court allowed the appeal, quashed the convictions for murder, and ordered that the appellants be retried.

Orders