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Wakeley v The Queen

Wakeley v The Queen

Case [1990] HCA 23 7 June 1990

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HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and McHugh JJ.

STUART REGINALD WAKELEY and ANTHONY DAVID KEITH BARTLING v. THE QUEEN

7 June 1990

Decision

MASON C.J., BRENNAN, DEANE, TOOHEY AND McHUGH JJ. The applicants seek special leave to appeal against their conviction on various counts relating to trafficking in and possession of heroin. Each applicant was convicted of carrying on the business of unlawfully trafficking in a dangerous drug (heroin) and unlawful possession of a dangerous drug (heroin) in excess of 2 grams but less than 200 grams. Wakeley was acquitted of possessing a dangerous drug (heroin); Bartling was convicted of that offence. Wakeley was also convicted of possessing money obtained from a drug-related offence. Bartling was also convicted of possessing property, being money and jewellery, obtained from the commission of a drug-related offence. Each applicant was sentenced to various periods of imprisonment. For the offence of trafficking, the sentence was mandatory, namely, life imprisonment.

2. Each applicant complains of the trial judge's refusal to allow cross-examination "into the causes of the death of Detective Horton". While that is the basis on which each application was presented and therefore must be dealt with, there is underlying the argument another and perhaps more fundamental proposition, namely, whether the Crown should have led evidence into Horton's cause of death.

3. To no small extent, the problems which have emerged have been caused by the fact that the trial judge's ruling, that cross-examination about the cause of Detective Horton's death would be excluded, was premature. That ruling was effectively made in discussion which took place between his Honour and counsel at the conclusion of a voir dire to determine the admissibility of a confessional statement made by the applicant Bartling and prior to the opening address of the Crown prosecutor. The voir dire had itself followed an unsuccessful application by counsel for Bartling that his client be tried separately from Wakeley. As part of the voir dire the Crown called Detective Senior Constable Bunton who was present at the Broadbeach police station on 2 February 1988 when Detective Sergeant Horton interviewed Bartling. Horton had died the morning following this interview. During examination-in-chief, Bunton was asked by the Crown prosecutor, "Detective Horton is dead; is that so?", to which she answered, "Yes". The question was asked, no doubt, so that Bunton might refer to notes made at the interview by Horton and signed by Bunton and by Bartling. In the course of cross-examination of Bunton by Bartling's counsel, this exchange took place:
"I take it you're aware as to Mr Horton dying from what
appears to be an overdose of drugs? -- I believe it was a contributing factor to his death. Do you know the type of drugs that were involved? -- I was told it was a combination of THC, cocaine and heroin. THC, that's cannabis isn't it? -- Yes."

4. It will be necessary to say more of the circumstances surrounding Horton's death, though some of what is…

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 Wakeley v The Queen

Details

AGLC: Wakeley v The Queen [1990] HCA 23
Case: [1990] HCA 23
Decision Date: 7 June 1990

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Wakeley, against his conviction for murder. The dispute concerned the applicant's assertion that he had acted in self-defence when he fatally stabbed the victim during an altercation.

The central legal issue before the High Court was whether the trial judge had erred in law by directing the jury that the onus was on the applicant to prove, on the balance of probabilities, that he had acted in self-defence. This question required the Court to consider the proper application of the defence of self-defence in criminal law, particularly in relation to the burden of proof.

The High Court, by majority, held that the trial judge's direction was erroneous. The Court affirmed the principle that in Australian criminal law, the prosecution bears the onus of disproving self-defence beyond a reasonable doubt once evidence has been adduced suggesting the possibility of self-defence. The Court reasoned that the defence of self-defence is not an affirmative defence in the same way as, for example, insanity, and therefore does not require the accused to prove its elements on the balance of probabilities. The onus remains with the Crown to prove, beyond a reasonable doubt, that the accused did not act in self-defence.

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

Orders