Taiapa v The Queen - [2009] HCATrans 155

[2009] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B6 of 2009

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

FRENCH CJ
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 11.20 AM

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D. Weller & Associates)

MR M.J. COPLEY, SC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

FRENCH CJ: Yes, Mr Wendler.

MR WENDLER: Before I open the application there is a procedural issue concerning time. I will take your Honours – we might need to proceed and then the time thing will follow, so to speak.

FRENCH CJ: I am sorry?

MR WENDLER: There is a procedural issue. The application for special leave is out of time.

FRENCH CJ: You seek an extension?

MR WENDLER: Yes.

FRENCH CJ: You object?

MR COPLEY: I do object to it in this particular case, yes.

FRENCH CJ: On what basis?

MR COPLEY: On the basis that the delay of almost five months is not satisfactorily explained. If regard is had to the affidavit of Mr Weller, the applicant’s solicitor, at application book 81 your Honours will see that he was not contacted, he asserts, by the applicant until 14 December 2008 in which conversation the applicant sought his assistance to bring an application for special leave. He goes on to assert that the applicant asserted that he had difficulty in the months from August through to November in getting his file returned from Legal Aid, Queensland, or Legal Aid, presumably Queensland.

That explanation is not satisfactory in itself but it is particularly not satisfactory when regard is had to page 68 of the application book where your Honours see that the instructing solicitors in the appeal court were:

John‑Paul Mould, Solicitors (Brisbane) acting as Town Agent for John D Weller & Associates (Bundall) –

I am basing my opposition on an assumption that John D Weller, Bundall, is the same John D. Weller who is practising or resident at Ewingsdale near Byron Bay in the State of New South Wales. If that is so, if the applicant’s lawyers at the Court of Appeal were the same as the lawyers who filed this application five months out of time, then how can it be a difficulty in getting one’s file out of Legal Aid and my opposition, of course, is also on the basis on that the matter has no merit but that is a matter for later.

FRENCH CJ: Yes, all right. Thank you, Mr Copley. Yes, Mr Wendler.

MR WENDLER: Your Honours, can I proceed to develop the submission as part of the application for an extension of time?

FRENCH CJ: Perhaps you can tell us, first of all, anything you…

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: [2009] HCATrans 155
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Taiapa against his conviction for murder. The appeal concerned the application of the defence of provocation in the context of a jury's verdict.

The central legal issue before the High Court was whether the jury, in finding Mr Taiapa guilty of murder, had necessarily rejected the defence of provocation, or whether there remained a possibility that the jury had found provocation but still convicted of murder. This question arose due to the specific wording of the jury's verdict and the trial judge's directions.

The High Court reasoned that a jury's verdict of guilty of murder, when the defence of provocation has been raised, does not automatically mean that the defence has been rejected. The jury may have found that the elements of provocation were present but, for other reasons, still concluded that the act amounted to murder. The Court emphasised the importance of clarity in jury directions and verdicts to avoid ambiguity regarding the application of defences.

The High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Supreme Court of Queensland for a retrial on the charge of murder.

Orders