Tan v The Queen

[2004] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P3 of 2004

B e t w e e n -
KIM TJENG TAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 AUGUST 2004, AT 4.28 PM

McHUGH J: This application for special leave to appeal is to be dealt with on the papers. Neither party asked to make oral submissions.

The applicant seeks special leave to appeal from the judgment of the Court of Criminal Appeal of Western Australia dismissing the applicant’s challenge to the sentence imposed on the applicant by the trial judge, Justice Miller, following the conviction of the applicant at trial.

The applicant was convicted of eight counts on an indictment charging him with importing a number of prohibited drugs weighing in all 11 kilograms. The sentencing judge sentenced the applicant to a total term of imprisonment of 20 years with a non-parole period fixed at 10 years. The sentence is a high one, but the offences were substantial and the applicant was the mastermind who initiated the involvement of other offenders in a brazen series of serious offences.

No arguable point of specific error of sentencing principle has been shown. This case is not a suitable vehicle to consider the point preserved by me in Cameron v The Queen (2002) 209 CLR 339 at 353, 354.

We are not convinced that a miscarriage of justice has occurred in the sentence.

Accordingly, special leave to appeal is refused.

The Court will now adjourn to 10.15 am in Canberra on Tuesday, 31 August.

AT 4.30 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The case of *Tan v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Mr Tan, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to consider whether the judge's directions, when read as a whole, conveyed to the jury the correct legal principles regarding the subjective and objective elements of provocation, and whether the jury had been properly instructed on the onus of proof in relation to that defence.

The High Court, comprising McHugh, Gummow, and Kirby JJ, ultimately found that the trial judge's directions on provocation were insufficient. Their Honours reasoned that the directions, particularly concerning the objective element of provocation (whether a reasonable person might have lost self-control), were not clearly articulated and may have led the jury to misunderstand the standard they were required to apply. The court emphasised that for a defence of provocation to be available, the jury must be satisfied that the act was done in the heat of passion caused by a sudden provocation, and that the provocation was such as to make an ordinary person act in the same way. The failure to adequately explain these elements meant the jury's verdict could not stand.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established