Walker v The Queen - [1996] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S7 of 1996

B e t w e e n -
DENNIS BRUCE WALKER
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 12.03 PM

MR S.J. ODGERS: May it please the Court, I appear for the applicant in that matter. (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN: If it pleases the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Mr Odgers.

MR ODGERS: Your Honours, the applicant in this matter was charged with two offences; there is only an application for leave in respect of one of them and that was the charge of maliciously discharge a loaded firearm with an intent to resist or prevent his lawful apprehension. There was no dispute at the trial that the applicant was struggling with Sergeant Campbell nor that he grabbed the police officer’s weapon nor was there any dispute that he pointed it at the sergeant and said various things, including the possibility of withdrawal of charges. He then threatened the sergeant, pointed the gun, then pointed it up in the air and discharged it and repeated that process six times until the gun was unloaded, then he threw the gun away and essentially allowed himself to be arrested. On the defence case, absent self-defence ‑ ‑ ‑

McHUGH J: Is there not a problem as to whether self-defence has got anything to do with this? This is a statutory offence. How is self-defence an answer to this particular case? The issues are subsumed under maliciously, are they not?

MR ODGERS: Well, in my respectful submission, no, your Honour; self-defence must be available to this offence, even though it is a statutory offence.

BRENNAN CJ: Why?

MR ODGERS: It is essential in excuse; perhaps it falls within excuses that exist within the concept of maliciousness.

McHUGH J: That is a different question from the self-defence argument.

MR ODGERS: Perhaps that is a general importance question, your Honours, but ‑ ‑ ‑

BRENNAN CJ: No, it is not a general importance question; it is a question of primary approach to the criminal law.

MR ODGERS: Yes.

BRENNAN CJ: Self-defence is not an across-the-board defence. It is a defence to offences against the person of a particular kind.

MR ODGERS: Yes, well in my submission, it must extend to a situation where, on the defence case, you are ‑ ‑ ‑

BRENNAN CJ: You say it must, but why do you say that?

MR ODGERS: I am not sure.

McHUGH J: The offence is malicious discharge of a loaded firearm with intent to resist or prevent lawful apprehension.

MR ODGERS: Well, your Honours, I do not think you will find a reference to a defence…

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 Walker v The Queen

Details

AGLC: Walker v The Queen [1996] HCATrans 275
Case: [1996] HCATrans 275
Decision Date

CaseChat Overview and Summary

In *Walker v The Queen*, the High Court of Australia considered an appeal by the applicant, Walker, 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 that the applicant had remained silent when questioned by police after being cautioned. Further, the Court had to consider whether the jury directions on self-defence were adequate, particularly in relation to the applicant's subjective belief as to the necessity of using force.

The Court held that the admission of evidence of the applicant's silence was a material irregularity, as it was capable of being interpreted by the jury as evidence of guilt, contrary to the principle that an accused is not obliged to assist the prosecution. Regarding self-defence, the Court affirmed that the jury must consider the circumstances as the accused honestly believed them to be, and then determine whether the force used was reasonably necessary in those perceived circumstances. The legal principles applied included those relating to the right to silence and the elements of the defence of self-defence under the relevant criminal code.

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

Orders