Stewart v The Queen - [2000] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S118 of 1999

B e t w e e n -
ANCHORAGE MARINE UNDERWRITING AGENCY PTY LIMITED
First Applicant
MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

Second Applicant

and
HANSEN DEVELOPMENT PTY LIMITED
Respondent
Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 2000, AT 2.15 AM

____________

MR A.W. STREET, SC: May it please the Court, I appear with my learned friend, MR M.K. CONDON, for the applicants. (instructed by McCulloch & Buggy)

MR P.E. KING: If your Honours please, I appear with MR C.A.B. FAIRBAIRN for the respondent. (instructed by Attwood Marshall)

GUMMOW J: Mr Street.

MR STREET: Can I indicate to your Honours at the outset that there was some supplementary material that I think was sent up to the Court indicating that the applicants seek to rely upon section 8(2). To the extent that might not have been apparent, I understand there is no ‑ ‑ ‑

GUMMOW J: Yes. This is the document dated 12 April?

MR STREET: Yes, your Honour. I understand there is no objection to the issue being clarified that that is an issue we rely upon. Your Honours, the applicants in the present case say that the case raises the importance of the application of the Marine Insurance Act to the third party liability risk cover on navigable inland waters. In substance, the applicants contend that the Court of Appeal erred, at pages 53 and 56, in the constructions of section 8 and section 9.

Could I briefly take your Honours to pages 53 and 56 of the application book. Your Honours will see at page 56 that his Honour Justice Meagher, who committed the judgment on behalf of the Court of Appeal, characterised the policy at line 10 as one of a “public liability policy”. That approach was then adopted by his Honour in some reasoning that appears at the bottom of page 55 where he goes on to refer to the ships and goods policy as being a marine policy. He then refers to certain exclusions that one finds in what I would describe as a collision policy, and he then says at about line 20:

In the whole of Arnould’s work I have not located a single example of a public liability risk being treated as a marine insurance risk, let alone a policy dealing with nothing but public liability being treated as a marine policy.

GUMMOW J: I think we understand that, Mr Street, but what do you say about his Honour’s, admittedly brief but nevertheless emphatic, statements at page 58 in paragraph 15 of the judgment? It seems to suggest, may it not, that the points you wish to raise, which at first blush certainly look significantly legal questions, that they may nevertheless not necessarily arise?

MR STREET: No, your Honour, our submission in 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.

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Details

Case: [2000] HCATrans 170
Decision Date

CaseChat Overview and Summary

Stewart appealed his conviction for murder in the Supreme Court of Queensland. The appeal concerned the admissibility of certain evidence and the adequacy of the trial judge's directions to the jury.

The primary legal issues before the High Court were whether the trial judge erred in admitting evidence obtained from the appellant under duress, and whether the jury directions regarding the elements of murder and the defence of provocation were sufficiently clear and accurate. Specifically, the Court considered the application of the principles governing the admissibility of confessions obtained in circumstances where the accused's will might have been overborne.

The High Court held that the evidence obtained from the appellant was indeed inadmissible due to the coercive circumstances under which it was obtained, which rendered it involuntary. The Court reasoned that the admission of this evidence had likely prejudiced the appellant's right to a fair trial. Furthermore, the Court found that the jury directions on provocation were inadequate, failing to properly explain the objective and subjective elements of the defence as required by law.

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

Orders