Solomon v The Queen - [1991] HCATrans 200

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S71 of 1990
B e t w e e n -
EDDIE SOLOMON

Applicant

and
THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J
GAUDRON J

McHUGH J

Solomon

7/8/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 1991, AT 12.17 PM

MR G.J. LUNNEY: If it please the Court, I appear for the

applicant in this matter. (instructed by Farrell
Lusher)

MR K. MASON, QC, Solicitor-General for New South Wales:

appear with my learned friend, MR W. ROSER, for the
respondent. (instructed by S.E. O'Connor,
Solicitor for Public Prosecutions)

MASON CJ: Yes, Mr Lunney.

MR LUNNEY:

If the Court pleases, the applicant in this

matter stood trial in New South Wales in 1987. He
was convicted. For most of the trial he appeared
in person. In April 1989 he sought leave to appeal
to the Court of Criminal Appeal in New South Wales;
his appeal was heard and determined on

15 November 1989. The formal order of the Court of
Appeal appears at page 56 of the appeal book and
the decision of the court was that the appeal be
upheld, that the conviction be quashed and that the
sentence be set aside.
The appellant, the applicant in this Court,

had appealed on a large number of grounds to the
Court of Criminal Appeal and he had presented his
case himself at the hearing. The Court of Criminal
Appeal decided the case on one ground only and that
was the direction, or the standard of proof, that
was contained in the trial judge's direction.
At page 49 and 50 of the appeal book, at

line 30, there was an indication that the court, in
its judgment, dealt with only one ground of appeal
and that was the standard of proof direction.
Again, at line 54 on page 50, the court refers to
the single relevant ground of appeal.
I understand that this application is not

opposed and short minutes of order have been

prepared which I would seek to hand up. The short
minutes of order have been prepared along the lines

of the order of this Court in Jones v Reg, (1988)
166 CLR 409.

DEANE J: There were grounds which, if upheld, would

inevitably have led to a quashing of the conviction
wi~~out any trial?

MR LUNNEY: In this case, Your Honour?

DEANE J: Yes. That is what -

MR LUNNEY: Arguably, Your Honour, yes. There were 85

grounds of appeal in all, I understand, that were

Solomon

7/8/91

contained in the notices of appeal to the Court of
Criminal Appeal.

DEANE J:

I glanced through them.

I did not see any that

plainly would have led to an unqualified quashing
other than "unsafe and unsatisfactory". Is that
the one that you -

MR LUNNEY: Well, Your Honour…

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 Solomon v The Queen

Details

AGLC: Solomon v The Queen [1991] HCATrans 200
Case: [1991] HCATrans 200
Decision Date

CaseChat Overview and Summary

The applicant, Solomon, was convicted in New South Wales in 1987. He subsequently sought leave to appeal to the Court of Criminal Appeal of New South Wales, which heard and determined his appeal on 15 November 1989. The Court of Criminal Appeal upheld the appeal, quashed the conviction, and set aside the sentence. This matter came before the High Court of Australia on an application for special leave to appeal.

The primary legal issue before the High Court concerned the grounds upon which the Court of Criminal Appeal had decided the applicant's appeal. The Court of Criminal Appeal had based its decision on a single ground relating to the standard of proof in the trial judge's direction to the jury. The applicant, however, had raised a large number of grounds of appeal, and the High Court considered whether there were other grounds that, if upheld, would have led to an unqualified quashing of the conviction.

The High Court's discussion focused on the utility of remitting the matter back to the Court of Criminal Appeal. The applicant argued that there was a possibility that if the matter were remitted, a new trial might not be ordered, allowing him to argue his original grounds of appeal. The Court considered whether any of the numerous grounds of appeal, beyond the one relied upon by the Court of Criminal Appeal, would have led to an unqualified quashing of the conviction.

The High Court granted special leave to appeal. The parties had prepared short minutes of order, and the application was not opposed. The outcome was that the matter was remitted to the Court of Criminal Appeal.

Orders