Tully v The Queen - [2006] HCATrans 343

[2006] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B12 of 2006

B e t w e e n -
RAYMOND DOUGLAS TULLY
Appellant
and
THE QUEEN
Respondent

KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2006, AT 10.40 AM

MR A.J. KIMMINS: If it pleases the Court, I appear with my learned junior, MS K.A.M. GREENWOOD, for the appellant. (instructed by Welldon Zande & Reddy)

MRS L.J. CLARE: If it please the Court, I appear with MS V.A. LOURY for the respondent. (instructed by Director of Public Prosecutions (Queensland))

KIRBY J: Yes, Mr Kimmins.

MR KIMMINS: By leave granted on 10 March 2006, two specific areas are open for debate in the instant appeal, the first dealing with proper directions to be given to a jury by a trial judge in relation to a complainant’s evidence given in a sexual assault trial, and the second dealing with aspects of uncharged acts. So far as the first is concerned, if I could take the Court to transcript 242 ‑ ‑ ‑

KIRBY J: Just pause for one moment. No application was made at the trial for any direction on either of the points that you are now entertaining?

MR KIMMINS: No, that is correct, your Honour. It can be seen that on appeal there was a ground taken in relation to the competent representation of the appellant at trial.

KIRBY J: Where is that?

MR KIMMINS: There were a number of aspects discussed, the most relevant being probably at 248. Line 40 deals with probably the closest point I can take the Court to so far as one of my grounds are concerned.

HAYNE J: Do we have a final version of notice of appeal in the Court of Appeal? We have what looks to be a holding form of notice at 230:

conviction was unsafe and unsatisfactory –

and yet it is evident that the grounds changed in argument.

MR KIMMINS: I apologise ‑ ‑ ‑

KIRBY J: If you have that that could perhaps be handed up later, after lunch?

MR KIMMINS: Yes, your Honour, thank you. Page 242 primarily covers the first of the grounds that we seek to argue in relation to the directions given by the learned trial judge touching upon the evidence of the complainant. At paragraph [53] Justice Keane identified two passages where it is said that her Honour’s directions in relation to the need to scrutinise the evidence of the complainant were covered.

CALLINAN J: Mr Kimmins, did not Justice Keane say in the Court of Appeal that this was a case in which delay would not, as it were, have deprived the appellant of opportunity to mount a defence which is I think the matter that was discussed in Doggett that it is the deprivation of the opportunity of actually marshalling a defence. There…

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 Tully v The Queen

Details

AGLC: Tully v The Queen [2006] HCATrans 343
Case: [2006] HCATrans 343
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Tully, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the jury directions on self-defence were adequate. Specifically, the court had to consider the relevance of the prior convictions to the issue of whether the applicant had acted in self-defence and whether the jury had been properly instructed on the onus of proof in relation to that defence.

The Court held that the admission of the applicant's prior convictions was prejudicial and therefore inadmissible, as their probative value did not outweigh their potential to unfairly prejudice the jury against the applicant. Furthermore, the Court found that the jury directions on self-defence were insufficient, particularly concerning the standard of proof required for the defence to be established. The principles applied included those relating to the admissibility of evidence under the Uniform Evidence Acts and the fundamental principles of criminal law regarding the onus of proof for defences.

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

Orders