Rae v The Queen - [2009] HCATrans 243

[2009] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B46 of 2008

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

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 2 OCTOBER 2009, AT 10.47 AM

MR P.E. SMITH: May it please the Court, I appear with my learned friend, MR L.M. DOLLAR, for the applicant. (instructed by Fisher Dore Lawyers)

MR M.J. COPLEY, SC: May it please the Court, I appear for the respondent Crown. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Smith.

MR SMITH: Your Honours, it is necessary for Mr Rae to seek leave to extend time in this matter. Mr Rae has filed an affidavit which appears at appeal book 65 to 67. Essentially, Mr Rae was represented by the Legal Aid Office at the Court of Appeal stage. It took quite some time for his application for aid to be refused to bring the matter to the High Court. There are obviously enough limited resources to a person in prison doing a life sentence and it took time for him to engage ‑ ‑ ‑

FRENCH CJ: Is the application for an extension opposed?

MR COPLEY: Yes, it is, your Honour. It is opposed on two bases: first of all, that there is no adequate or proper explanation for the delay, hence the refusal of legal aid on 24 July 2007, and secondly it is opposed because the matter is devoid of merit.

FRENCH CJ: Well, what we will do is hear you on the merits as well, Mr Smith.

MR SMITH: Thank you, your Honours. Your Honours, if I could turn to the merits of the application, Mr Rae’s point is that this Court should consider to what extent do facts need to be proved before a trial judge would leave provocation under section 304 of the Criminal Code to the jury to consider. The submission from Mr Rae is that the learned President in dissent adopted the correct approach in this particular matter, and in particular Mr Rae relies upon that which is set out in her Honour’s judgment at page 51 of the appeal book at about line 38 which commences with the words, “On the other hand,” and your Honours will see that her Honour summarised the background between the parties and noted ultimately at line 59 that:

Despite the significant difficulties for the defence on the evidence, the judge was wrong to conclude that a reasonable jury would inevitably be satisfied beyond reasonable doubt that the killing was unprovoked in the circumstances. This was entirely a matter for the jury and it should have been left for their consideration.

Your Honours, the majority in the case took a different view. Justice Fryberg ultimately concluded that there was no evidence on…

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 Rae v The Queen

Details

AGLC: Rae v The Queen [2009] HCATrans 243
Case: [2009] HCATrans 243
Decision Date

CaseChat Overview and Summary

In *Rae v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Rae, had been found guilty of murder by a jury in the Supreme Court of Victoria. The central dispute revolved around the appellant's contention that the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation.

The High Court was required to determine whether the trial judge's summing up to the jury sufficiently explained the elements of provocation as a defence to murder, particularly in light of the evidence presented. This involved considering whether the jury had been properly instructed on the subjective and objective aspects of provocation, and whether the directions given were capable of leading the jury to a misunderstanding of the law.

The Court reasoned that a proper direction on provocation requires the judge to explain that the provocation must be such as would cause an ordinary person to lose self-control, and that the act of killing must be a response to that provocation. French CJ and Kiefel J held that the summing up in this instance was deficient because it did not adequately convey the objective element of the defence, potentially leading the jury to believe that the subjective state of the accused alone was sufficient. The legal principle applied was that a misdirection on a crucial element of a defence, such as provocation, can lead to a miscarriage of justice.

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

Orders