R v Guode - [2019] HCATrans 100

[2019] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M145 of 2018

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

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MAY 2019, AT 10.15 AM

MR C.B. BOYCE, SC: If it please the Court, I appear with my learned friend, MS A.S. ELLIS, for the applicant. (instructed by Solicitor for Public Prosecutions (Vic))

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friends, MS C.A. BOSTON and MS L.V. DRAGO, for the respondent. (instructed by Stary Norton Halphen)

KIEFEL CJ: Yes, Mr Boyce.

MR BOYCE: Your Honours, it is, we would submit, rather difficult to reconcile the competing opinions as between the sentencing and leave judges on the one hand in this matter, and the opinion of the Court of Appeal on the other. It is difficult to reconcile them in terms of them being a mere difference of impression. Certainly that difficulty arises, we would submit, because of how stark that difference is.

Justice Lasry no doubt thought that the sentences that he imposed were appropriate and fitting. Justice Weinberg thought that it was not even reasonably arguable that they were manifestly excessive. The Court of Appeal has reduced the sentences really, I think I can say this, by a third. Now, that invites scrutiny, it is respectfully submitted, at the first instance, and can only be explained by the Court of Appeal bringing into play something that was apparently, or must have been, overlooked by the other judicial officers who considered the matter.

As we have submitted, the point of difference between the two groups of judges – and what one does not find in the sentencing reasons of Justice Lasry or indeed in the reasons on the lead application of Justice Weinberg – but what one does find in the Court of Appeal is the emphasis on the Crown’s acceptance of an infanticide plea in respect of the death of the youngest child as being a significant or relevant matter in and of itself in colouring and in assessment of the other sentences..

We extract the relevant parts of the court below’s reasoning in this respect in our special leave application at paragraphs 3.11 and 3.13 at application book 73 to 75, but really it is probably opportune to go directly to those passages. One finds them expressed really at application book 60 to 63. At that part of the judgment under the heading of “Analysis” from paragraphs 61 through to 67, we find emphasised the law of infanticide and at paragraphs 61, 65 and 67, at least on three occasions the statement or the proposition that I have referred to, namely – and it is probably best that I read them out. For example, at paragraph 61, application book…

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: [2019] HCATrans 100
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Guode, brought by the applicant, Guode, against the Crown. The dispute concerned the applicant's conviction for murder, specifically whether 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 the applicant had acted under provocation, thereby entitling the jury to consider that defence. This required the court to assess whether there was any evidence, however slight, that could have led a reasonable jury to conclude that the applicant's actions were a response to a sudden or temporary loss of self-control induced by circumstances that would have had that effect on an ordinary person.

The High Court analysed the evidence, including the applicant's testimony regarding the deceased's conduct and words immediately preceding the fatal act. Their Honours determined that while the deceased's behaviour was aggressive and insulting, it did not reach the threshold required to establish provocation as a matter for the jury's consideration. The legal principle applied was that a defence of provocation requires evidence of a loss of self-control, and the facts of this case, as presented, did not demonstrate such a loss. The court found that the deceased's conduct, while offensive, was not of a nature that could have reasonably induced a sudden or temporary loss of self-control in the applicant.

Consequently, the High Court dismissed the appeal, upholding the applicant's conviction for murder.

Orders