The Queen v Dookheea - [2016] HCATrans 284

[2016] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M61 of 2016

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

FRENCH CJ
KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2016, AT 10.02 AM

MR B.L. SONNET: If the Court pleases, I appear on behalf of the applicant. (instructed by Office of Public Prosecutions)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MS C.A. BOSTON, for the respondent. (instructed by Stary Norton Halphen)

FRENCH CJ: Thank you, Mr Holdenson. Yes, Mr Sonnet.

MR SONNET: Your Honours, in relation to this application for special leave, the Crown raises for consideration the content of the standard of proof direction that is given to a jury in a criminal trial. In this particular matter, a 10‑day murder trial resulted in a conviction for murder. An appeal to the Court of Appeal was allowed. There were three grounds of appeal but the ground that was allowed related to the direction that the trial judge had given to the jury in respect of standard of proof.

The impugned direction has been extracted by the court at paragraph 86 of their judgment and that is to be found at page 111 of the application book. The direction in question related to an instruction by the judge that the Crown did not have to satisfy the jury beyond any doubt but beyond reasonable doubt.

KIEFEL J: The critical issue in the case was intention?

MR SONNET: That is so, your Honour. That was the only issue related to the mental intent. All the respondent at the time ‑ ‑ ‑

FRENCH CJ: Across any act that would have been responsible for death?

MR SONNET: Yes, that is so, your Honour. So it was a trial fought on a single issue in relation to the mental element of the respondent at the time of the death of the victim. The court’s conclusion can be found at paragraph 89 of their judgment and that is to be found at page 112 of the application book. The court concluded that that direction, which included that instruction, was a misdirection, it was a fundamental misdirection and that a retrial had to be ordered.

The reasoning of the court can be found at paragraph 90, again on page 112 of the application book and, in short, the court makes reference to a decision of the South Australia Court of Criminal Appeal in Compton.It refers to the respective judgments of Chief Justice Kourakis and Justice Peek. It accepts their analysis and for those reasons finds that the instruction that was contained in the direction was fatal.

Now, there are two points that the Crown seeks to raise in this application for special leave. The impugned direction occurred during a charge where…

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 The Queen v Dookheea

Details

AGLC: The Queen v Dookheea [2016] HCATrans 284
Case: [2016] HCATrans 284
Decision Date

CaseChat Overview and Summary

The Queen (the Crown) brought proceedings against Mr Dookheea in the Supreme Court of Queensland. The dispute concerned the admissibility of certain evidence obtained from Mr Dookheea, specifically a confession made to police. The case ultimately proceeded to the High Court of Australia.

The central legal issue before the High Court was whether the confession made by Mr Dookheea to police was admissible in evidence, given the circumstances under which it was obtained. This involved considering the application of the common law exclusionary rule concerning improperly or illegally obtained evidence, and whether the confession was voluntary.

The High Court determined that the confession was inadmissible. Their Honours applied the principle that evidence obtained in contravention of the law, or by means that are unfair or improper, should generally be excluded. In this instance, the confession was obtained after Mr Dookheea had been cautioned, but the circumstances surrounding the interview and the subsequent confession were found to be such that its admission would be unfair to the accused. The court considered the voluntariness of the confession and the overall fairness of admitting the evidence, concluding that the confession was not voluntary in the relevant sense and should be excluded in the interests of a fair trial.

Orders