Spence v The Queen - [2016] HCATrans 285

[2016] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M78 of 2016

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

FRENCH CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2016, AT 10.38 AM

MR R.F. EDNEY: May it please the Court, I appear on behalf of the applicant. (instructed by Emma Turnbull Lawyers Pty Ltd)

MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by the Solicitor for Public Prosecutions)

FRENCH CJ: Yes, Mr Edney.

MR EDNEY: Your Honours, this application raises for consideration a novel, significant and important point of principle in the application of the law of evidence under the Uniform Evidence regime and the relevance, if any, of the grant of certificate to a witness in a criminal trial under 128 of the Evidence Act.

The basal contention or the essential argument on behalf of the applicant is that the grant of the certificate, following the assertion of the privilege against self‑incrimination, is not evidence, not relevant to the task of the jury, let alone should be permitted to be used in a closing submission that a witness is reliable or, conversely, unreliable.

To develop those submissions further, if I could take the Court, please, to the appeal book and the Court of Appeal reasons, which are essentially located at paragraphs 81 to 87 of the decision in Spence.

GORDON J: In relation to those propositions you have just set out and described as non‑exhaustive, in what respects are they wrong?

MR EDNEY: If I can do it this way: proposition 1 and 2 ‑ ‑ ‑

GORDON J: Are wrong or right?

MR EDNEY: Are right, are correct.

GORDON J: Which ones are wrong? Just tell me which ones are wrong, which ones you do not like and why?

MR EDNEY: Well, it starts to go wrong at proposition 3 because that refers to section 132 of the Act which, as your Honours would be aware, indicate or the statute states that that type of taking of a privilege against self‑incrimination, exercising that, should be done in the absence of the jury. Now, the Court of Appeal, as your Honours can see, when they deal with this particular proposition, say this:

Once a certificate is granted, however, s 132 of itself presents no obstacle to the existence of the certificate being revealed to the jury.

GORDON J: What is wrong with that?

MR EDNEY: In my submission – and there is some limited authority from New South Wales to support the argument that it is contravention of section 132 to reveal to the jury the fact that a witness has been granted a privilege against self‑incrimination and therefore a certificate and that, of course, is the decision of

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: [2016] HCATrans 285
Decision Date

CaseChat Overview and Summary

In *Spence v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Mr. Spence, had been found guilty of murder by a jury in the Supreme Court of Western Australia and sentenced to life imprisonment. The appeal to the High Court concerned the trial judge's directions to the jury regarding the defence of provocation.

The central legal issue before the High Court was whether the trial judge had adequately directed the jury on the elements of provocation, particularly in relation to the requirement that the provocation must be such as to cause an ordinary person to lose self-control. The High Court also considered whether the judge's summing up had created a substantial risk that the jury might have misunderstood the law, thereby leading to a miscarriage of justice.

The High Court, in allowing the appeal, found that the trial judge's directions on provocation were flawed. French CJ and Gordon J held that the judge's explanation of the "ordinary person" test was insufficient and potentially misleading. They emphasised that the jury must be instructed that the question is not whether the accused *was* an ordinary person, but whether the provocation was *enough* to cause an ordinary person to lose self-control, and that the accused's reaction must be one that a person of ordinary fortitude might have had in response to that provocation. The Court concluded that the misdirection was substantial and that there was a real possibility that the jury had applied an incorrect test, leading to a miscarriage of justice.

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

Orders