Sievers v The Queen - [2005] HCATrans 663

[2005] HCATrans 663

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S70 of 2005

B e t w e e n -
ROBERT THEO SIEVERS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 12.11 PM

MR J.S. STRATTON, SC: May it please the Court, I appear for the applicant with my learned friend, MR R.J. BUTTON. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC: May it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

KIRBY J: Yes, Mr Stratton.

MR STRATTON: Your Honours, in this matter the appeal was lodged out of time by less than three months. I seek an order ‑ ‑ ‑

KIRBY J: What is your attitude to that, Mr Smith?

MR SMITH: There is no opposition to that order.

KIRBY J: Yes, you will have that order.

MR STRATTON: Thank you, your Honour. Your Honours, the first grant of appeal relates to the partial defence of provocation. The statutory test which is set out in the written submissions ‑ ‑ ‑

KIRBY J: Yes, well there was a departure from the language of the statute though on a number of occasions the learned trial judge did come back to the correct statutory language both in the oral and written submissions.

MR STRATTON: That is correct, but ‑ ‑ ‑

KIRBY J: So the question is whether the use of that – the words of departure attract that recent decision in Heron or whether it is cured enough by the use of the correct language.

MR STRATTON: Your Honour, the incorrect test, that is the test whether or not the conduct of the deceased could be expected to have so induced the conduct of the accused appeared repeatedly both in the summing‑up, and that is at application book 69 to 70. It is there on a number of occasions ‑ ‑ ‑

KIRBY J: Yes, we are aware of the fact that it appears on a number of occasions and it is certainly undesirable. It seems to me to depart but the question is did it lead to a miscarriage of justice in all of the circumstances of this case especially because the trial judge did repeatedly use the correct language of the statute.

MR STRATTON: Yes, could I just add that his Honour also gave the incorrect test in the written directions as well and that appears at pages 10 and 11 of the application book.

KIRBY J: Yes, I appreciate that it was in the written as well and that of course, in a sense, makes it worse but it still leaves the fundamental question as to whether there is sufficient error. It may be the second point we will have to think of to see whether that…

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 Sievers v The Queen

Details

AGLC: Sievers v The Queen [2005] HCATrans 663
Case: [2005] HCATrans 663
Decision Date

CaseChat Overview and Summary

The case of *Sievers v The Queen* concerned an appeal to the High Court of Australia by the applicant, Sievers, against his conviction for murder. The dispute arose from the applicant's assertion that the trial judge had erred in law by failing to direct the jury adequately on the issue of self-defence.

The central legal issue before the High Court was whether the trial judge's summing up to the jury sufficiently explained the elements of self-defence, particularly in relation to the applicant's perception of the threat and the reasonableness of his response. The court was required to consider whether the jury had been properly instructed on the subjective and objective components of self-defence as established in Australian criminal law.

Kirby and Heydon JJ, in their joint judgment, found that the trial judge's directions were inadequate. They reasoned that the summing up had not clearly articulated that the jury must consider the circumstances as the applicant honestly believed them to be, and then determine whether the force he used was a reasonable response to those perceived circumstances. The judges emphasised that a failure to properly direct on these subjective and objective elements could lead to a miscarriage of justice, as the jury might have convicted the applicant without properly considering his defence.

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

Orders