The Queen v Hooper P101/2000 - [2001] HCATrans 561

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P101 of 2000

B e t w e e n -
THE QUEEN
Applicant
and
MURRAY REO HOOPER
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 10.50 AM

MR D. DEMPSTER: May it please your Honours, with my learned friend, MS J.A. GIRDHAM, I represent the Crown as applicant. (instructed by Director of Public Prosecutions (Western Australia))

MR R.W. CANNON: May it please, your Honours, I appear for the respondent. (instructed by Lisa Boston)

KIRBY J: Yes. Well, what do you say? One always embarks upon the Code with a certain circumspection. Justice Brennan told me that non-Code State lawyers have to be very, very careful dealing with the Code.

MR DEMPSTER: Your Honours, death is very different from endangerment of life; a foreseeable death remains also different from a foreseeable endangerment of life, but the distinction may become blurred and we say, respectfully, that the distinction did become blurred in the Court of Criminal Appeal. Perhaps I could illustrate that by taking your Honours to page 38 of the application book at paragraph 40. There have, of course, been an acquittal of the principal charge of manslaughter but, nonetheless, a conviction of the alternative count of doing grievous bodily harm and his Honour the Chief Justice said there:

a verdict of not guilty of manslaughter would necessarily involve a finding by the jury that the actions of the accused were of a kind that it was not reasonably foreseeable that they would cause or be likely to cause death.

And it is the insertion of that phrase “be likely to cause” which we say demonstrates the error respectfully, and we say that because, to establish manslaughter, which is an unlawful killing, there must be an injury or injuries which caused death. Injuries which are likely to cause death cannot constitute manslaughter. The difficulty is, having defined manslaughter or taken that view of the acquittal, their Honours - all their Honours take the same approach, in different ways I can demonstrate to your Honours - then applied that so as to exclude the first limb of the definition of “grievous bodily harm” as involving an:

injury of such a nature as to endanger, or be likely to endanger life –

and, in that way, we say the distinction has been blurred and the basis of the Court of Criminal Appeal decision, of course, was that the verdicts will differ inconsistent.

HAYNE J: At the moment there is to be a retrial?

MR DEMPSTER: That is the position, yes.

HAYNE J: On that retrial, the principles that are to be applied are to be identified, are they not, from, amongst other decisions Mamote‑Kulang and Kaporonovski, is that right?

MR DEMPSTER: That is correct, your Honour.

HAYNE J: And I take it you accept, do…

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 Hooper P101/2000

Details

AGLC: The Queen v Hooper P101/2000 [2001] HCATrans 561
Case: [2001] HCATrans 561
Decision Date: 25 October 2001

CaseChat Overview and Summary

The Queen prosecuted Mr Hooper, who was charged with two counts of conspiracy to defraud. The dispute concerned whether the prosecution had established a prima facie case against Hooper, thereby requiring him to answer the charges. The matter came before the High Court of Australia on appeal from the Supreme Court of Queensland.

The central legal issue before the High Court was whether the evidence presented by the prosecution was sufficient to establish a prima facie case of conspiracy to defraud against Mr Hooper. This required the court to consider the elements of the offence of conspiracy to defraud and the standard of proof required at that stage of criminal proceedings.

The High Court, comprising Kirby and Hayne JJ, considered the nature of conspiracy and the specific elements of the offence of conspiracy to defraud. Their Honours noted that a conspiracy requires an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. In the context of defrauding, the prosecution must demonstrate an intention to deceive or mislead and an intention to cause financial loss or disadvantage. The court analysed the evidence presented by the prosecution, assessing whether it could reasonably be open to a jury to infer the existence of an agreement and the requisite intent. The court affirmed that at the close of the prosecution's case, the evidence must be such that a reasonable jury, properly instructed, could convict.

The High Court found that the evidence, when viewed in the light most favourable to the prosecution, was capable of supporting a finding that Mr Hooper had conspired to defraud. Accordingly, the appeal was dismissed, and the prosecution was permitted to continue.

Orders