Watson v The Queen - [1988] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Brisbane No B38 of 1986
B e t w e e n -
GLEN MAURICE WATSON
Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

Watson
MASON CJ
WILSON J
DAWSON J
TOOHEY J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON FRIDAY, 1 JULY 198~.iT 9.37 AM
Copyright in the High Court of Australia

1/7/88

BlTl/1/MB 1

MR T. O'DONNELL:

If Your Honours please, I appear on behalf of the applicant, Watson. (instructed by Madden &
Co.)

MR P.G. NASE: May it please the Court, I appear on behalf
of the respondent. (instructed by Director of
Prosecutions)

MASON CJ: Mr O'Donnell.

MR O'DONNELL:

If Your Honours please, I hand up copies of the summaries of the applicant's arguments.

MASON CJ: Thank you. Yes.

MR O'DONNELL: Thank you, Your Honours. As Your: 'Honours
would see from that summary there are three points

that I have to cover. The first, of course, is
that on 28 January 1988 the applicant formerly
abandoned his application for special leave to
appeal. I would seek to read the affidavit in
relation to that of James - - -

MASON CJ: There is no occasion to read it.

MR O'DONNELL: Yes, thank you.

MASON CJ:

I think you can proceed to the substance of your submissions.

MR O'DONNELL: Yes, thank you, Your Honour. The situation
in relation to the abandonment of appeal is that
because the applicant was left without public
defence as a result of legal opinion the situation
was that the application remained in limbo for
a considerable period of time and that in the
interim time there was a second opinion given in
relation to the merits of the application. There
was a further article, which I have referred
Your Honours to, by Mr Freckelton in the Australian

Bar Review.

MASON CJ: Yes, we have seen that. I think you may approach

the matter at the point of special leave. I think
you can proceed to that point.

MR O'DONNELL: Yes, thank you, Your Honour. In relation
to special leave, Your Honours, I would submit
that this is a significant matter from the point
of view of any person who finds himself in a
culturally different situation in an ethic minority
where a jury is to assess such questions as his
intent or his motive and that it would be my
submission that that is an important point of view
from that section of the Australian community,
those who are in minorities who are culturally
different. There is also, in my submission, the

BlTl/2/MB 2 1/7/88
Watson
added feature that there is the difference of
approach, if not a conflict, between the Court of
Criminal Appeal in Victoria in YILDIZ's case,
which is the case referred to in the Australian Criminal Reports, and the attitude taken by the
Court of Criminal Appeal in Queensland to evidence

of intent in WATSON's case. In YILDIZ's case,
Your Honours - the case 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.

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Details

Case: [1988] HCATrans 144
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal by the applicant, Watson, against the respondent, The Queen. The core of the dispute concerned the admissibility of evidence relating to cultural attitudes and community customs when assessing a defendant's intent or motive, particularly for individuals from culturally different or minority backgrounds.

The legal issues before the Court were whether the case presented a significant matter from the perspective of individuals in cultural minorities when a jury is required to assess intent or motive, and whether there was a conflict between the approach taken by the Court of Criminal Appeal in Victoria in *Yildiz's* case and the approach taken by the Court of Criminal Appeal in Queensland in *Watson's* case regarding the admissibility of such evidence. Specifically, the Court considered whether evidence of community custom, as it relates to the passive partner in a homosexual relationship, was admissible and relevant to assist a jury in determining motive.

The applicant argued that *Yildiz's* case allowed the prosecution to lead evidence of Turkish attitudes within the Turkish community in Melbourne towards passive homosexuals to establish motive, with the Victorian Court of Criminal Appeal finding such subjective evidence admissible and relevant. In contrast, the applicant contended that the Queensland Court of Criminal Appeal's approach in *Watson's* case, as reported, suggested a different attitude, creating a conflict between the two appellate courts. The applicant submitted that this difference in approach was significant and warranted the High Court's consideration.

Orders