Truong v The Queen - [2003] HCATrans 511

[2003] HCATrans 511

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M226 of 2002

B e t w e e n -
HONG PHUC TRUONG
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 DECEMBER 2003, AT 10.16 AM

(Previously heard on 28/5/03)

GLEESON CJ: I do not think we need the appearances to be announced again, thank you. Have the parties agreed between themselves on an order of address?

(Appearances were as follows:

MR O.P. HOLDENSON, QC with MR J.B. McDOUGALL for the appellant. (instructed by Clarebrough Pica)

MR P.A. COGHLAN, QC with MS K.E. JUDD for the respondent. (instructed by Solicitor for Public Prosecutions (Victoria))

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia, with MS M.M. GORDON, SC and MS L.G. DE FERRARI intervening on behalf of the Attorney‑General of the Commonwealth. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia, with MS J.C. PRITCHARD intervening on behalf of Attorney‑General of Western Australia. (instructed by Crown Solicitor’s Office (Western Australia))

MS P.M. TATE, SC, Solicitor‑General for State of Victoria, with MS K.L. EMERTON intervening on behalf of Attorney‑General for the State of Victoria. (instructed by Victorian Government Solicitor))

MR BENNETT: Yes, your Honour. The order that has been agreed is that I should go first, then the appellant, then Victoria, then Western Australia, then the respondent, then the appellant in reply and then me in reply.

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: Your Honour, there are two preliminary matters and three submissions which we make. The first preliminary matter is to make the obvious point that we repeat the submissions we made on the previous occasion. If your Honours accept those, then the additional matters now raised do not arise and there is no need to decide them. The second preliminary matter is that yesterday a request was made to the United Kingdom Government for a retrospective waiver of specialty. It may be some time before that is determined.

That might have an effect on the form of orders which your Honours make if your Honours otherwise allow the appeal. We would simply seek leave to advise the Court and my learned friends of the ultimate result of that application and if ‑ ‑ ‑

KIRBY J: Is that a usual course? I am not myself entirely sure, but when I sat in the BLF Case years ago we looked in the New South Wales Court of Appeal at the usual process of Crown action where matters were before the court and my dim recollection is that the Crown normally waited for courts to dispose of matters on the law as it was and had been argued and took any, as it were, different and additional steps after the court had disposed of the matter that…

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 Truong v The Queen

Details

AGLC: Truong v The Queen [2003] HCATrans 511
Case: [2003] HCATrans 511
Decision Date

CaseChat Overview and Summary

In *Truong v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Mr. Truong, 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 direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the judge's summing up had sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to make an ordinary person act in the way the accused did, and whether the jury had been properly instructed on the subjective element of whether the accused had in fact been provoked.

The High Court, in a joint judgment, held that the trial judge's directions on provocation were inadequate. Their Honours explained that the defence of provocation requires the jury to consider both an objective and a subjective element. The objective element requires the jury to assess whether the provocation was such that it could have caused an ordinary person to lose self-control and act in the manner of the accused. The subjective element requires the jury to determine whether the accused was, in fact, provoked and lost self-control as a result. The court found that the summing up had not adequately conveyed the interplay between these two elements and had not sufficiently explained the standard of the "ordinary person" in the context of the provocation defence.

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

Orders