Stone v The King - [2023] HCATrans 80

[2023] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M79 of 2022

B e t w e e n -
KATE STONE
Applicant
and
THE KING
Respondent
Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 9 JUNE 2023, AT 11.45 AM

MR R.F. EDNEY: May it please the Court, your Honours, I appear on behalf of the applicant with my learned juniors MS K. BALLARD and MS S.A. STAFFORD. (instructed by Gallant Law)

MR C.B. BOYCE, KC: May it please the Court, I appear for the respondent with MS J.B. WARREN. (instructed by Office of Public Prosecutions (Vic))

GAGELER J: Thank you, Mr Boyce. Yes, Mr Edney.

MR EDNEY: Yes, thank you, your Honours.

GAGELER J: You need an extension of time, I think. Is that right?

MR EDNEY: Yes, we do, your Honour. We do so on the basis that the applicant is indigent in the sense of had no financial resources and has been assisted on a pro bono basis for a significant period of time. We would ask that any extension application be dealt with in terms of the substantial merits of the application.

GAGELER J: Are you content with that?

MR BOYCE: We are content with that. We do oppose.

GAGELER J: Thank you. Yes, please proceed, Mr Edney.

MR EDNEY: Thank you, your Honours. The only issue in this case was the identity of the person who killed Darren Reid. The prosecution conducted the trial on the basis that they had to exclude the reasonable possibility that Jason Baxter had killed Darren Reid. The jury were told in the final charge by her Honour that:

The prosecution must, on the evidence you have heard, exclude beyond reasonable doubt, the reasonable possibility that Jason Baxter or someone else was responsible for the death of Darren Reid –

In those circumstances and in that factual background, the call charge records of Jason Baxter for 18 and 19 December 2016 were always relevant and should have been disclosed in the early stage of the proceedings. Your Honours would be aware that the mere existence of those call charge records to the defence only occurred – and only occurred inadvertently – during cross-examination of the last witness: the police informant. In our submission, such late disclosure was inconsistent with how the prosecution had run its case from the very start.

What we mean by that, your Honours, is that first, in the hand‑up brief which commenced the proceedings against the applicant, Jason Baxter, and four alibi witnesses who were said to support him – and that was served on 30 March 2017. The existence of those call charge records was not disclosed in the Form 30. The Form 30, your Honours, is a form which is attached as part of the original hand‑up – initial hand-up brief, and what…

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 Stone v The King

Details

AGLC: Stone v The King [2023] HCATrans 80
Case: [2023] HCATrans 80
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Stone v The King*, brought by the applicant, Mr Stone, against the respondent, The King. The dispute concerned the applicant's conviction for a serious criminal offence.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, despite the defence not having been explicitly raised by the applicant at trial. This involved considering the circumstances in which a judge is obliged to leave a defence to the jury, even if not specifically requested by the defence.

Gageler and Edelman JJ held that a trial judge has a duty to direct a jury on a defence if there is some evidence that, if accepted, could be open to a jury to find that the elements of the defence are made out. Their Honours reasoned that the evidence presented at trial, when viewed in a light most favourable to the applicant, was capable of supporting a finding of provocation. Consequently, the failure to direct the jury on this defence constituted a material error of law.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders