Roddan v The Queen - [1999] HCATrans 368

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P42 of 1998

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

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 10.20 AM

MR R. BOURKE: I appear for the applicant, Mr Roddan. (instructed by Melasecca Zayler)

MR R.E. COCK, QC: With my learned friend, MR S. VANDONGEN, I represent the respondent. (instructed by the Director of Public Prosecutions for Western Australia)

GLEESON CJ: Yes, Mr Bourke.

MR BOURKE: If I can commence by addressing the first point raised in the outline of argument, that is the Ahern direction and its interface with the corroboration warning. I do not wish to be seen to be taking a backward step from the word go, but it is conceded that this application is not unattended by difficulties in terms of the history of the matter coming before this Court. It was not argued before the trial judge and was argued in a tangential way before the Court of Appeal, but it is submitted that nevertheless the point is strongly raised on the facts and the way in which the judge charged the jury in this case, it is a solid point for the Court to look and an important one to determine which will have implications throughout each jurisdiction in Australia.

The point is effectively this, that the combination of the traditional Ahern or Tripodi-type direction, that is to look at the acts and utterances of co-conspirators as evidence against the accused combined with the accomplice warning to look for independent corroboration has in its current form the unfortunate effect of suggesting that those acts and utterances of the co-conspirator are corroborative of the account of a conspirator accomplice who gives evidence. That was the case in this case, of course, where the two other conspirators, Lynette and Barry Crimmins, gave evidence on behalf of the Crown.

GLEESON CJ: Where do we find the direction of which you complain?

MR BOURKE: The direction appears at page 61 of the application book. It appeared at the very end of his Honour’s charge, indeed the morning following the jury retiring. His Honour had not, initially, given an Ahern direction at all. Prosecuting counsel brought that to his attention in the afternoon. He reviewed the transcript, discovered that he had not given the Ahern direction and then proceeded to give a direction the following morning, and then the jury retired, once again. If I could take your Honours to the last paragraph at about line 36 of the learned trial judge’s charge:

So if you are able to find that a conspiracy exists then you can use what Mr and Mrs Crimmins have said or done pursuant to that conspiracy as evidence against Mr Roddan, but bear in mind what I have told…

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 Roddan v The Queen

Details

AGLC: Roddan v The Queen [1999] HCATrans 368
Case: [1999] HCATrans 368
Decision Date

CaseChat Overview and Summary

Roddan v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Roddan, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. Roddan then sought and was granted special leave to appeal to the High Court.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to consider whether the judge's summing up sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to cause an ordinary person to lose self-control, and that the act of the accused must have been done in the heat of passion before there was time for passion to cool.

The High Court, in a joint judgment, held that the trial judge's directions on provocation were inadequate. Their Honours explained that the defence of provocation requires a two-stage test: first, whether the provocation was sufficient to cause an ordinary person to lose self-control, and second, whether the accused actually lost self-control and acted under that loss of control. The judge's summing up had failed to clearly articulate these distinct elements, particularly the objective standard of the "ordinary person" and the temporal element of the defence. The court found that this misdirection likely led to a miscarriage of justice.

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

Orders