Way v The Queen - [2005] HCATrans 147

[2005] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S226 of 2004

B e t w e e n -
COLIN JAMES WAY
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2005, AT 12.02 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant with my learned friend, MR A.C. HAESLER, SC. (instructed by Legal Aid Commission of New South Wales)

MR R.D. COGSWELL, SC: If it please the Court, I appear for the respondent with my learned friend, MS A.M. MITCHELMORE. (instructed by Director of Public Prosecutions)

GUMMOW J: Yes, Mr Odgers.

MR COGSWELL: Your Honours, this application involves new and radical sentencing legislation which introduces the concept of the standard non-parole period, which is defined in section 54A(2) of the Crimes (Sentencing Procedure) Act, which will be found at page 39 of the application book, to represent:

the non-parole period for an offence in the middle of the range of objective seriousness for –

the particular specified offence. Section ‑ ‑ ‑

GUMMOW J: Now, what would we be doing if we got engaged in this enterprise?

MR ODGERS: Your Honours would be giving guidance ‑ ‑ ‑

GUMMOW J: We do not give guidance, we decide cases.

MR ODGERS: You would be deciding in the particular circumstances whether or not the Court of Criminal Appeal erred in its interpretation of this legislation and its application of the legislation to this applicant. Your Honours are obviously familiar with the legislation, so I will not summarise it.

GUMMOW J: What, we would send it back for resentencing, would we?

MR ODGERS: Yes, your Honour.

GUMMOW J: We would have to, would we not?

MR ODGERS: Yes, your Honour, that is what we would be submitting would be appropriate.

GUMMOW J: In the Court of Appeal?

MR ODGERS: The Court of Criminal Appeal, your Honour.

GUMMOW J: Yes.

MR ODGERS: Your Honours, the Court of Criminal Appeal held that ‑ ‑ ‑

GUMMOW J: And what proposition of law would we be espousing in order to base our judgment as to the construction of this legislation?

MR ODGERS: Your Honours would be interpreting the construction of the words in section 54A:

the middle of the range of objective seriousness –

so there would be the question of what those words mean, and there are two aspects that the concept of “the middle of the range” - and your Honours appreciate that our argument is that the Court of Criminal Appeal has put a gloss on that which is not justifiable - and then there is the question of what “objective seriousness” means in this legislation. Again, your Honours will appreciate that we have contended that the interpretation that has been adopted is too broad.

This has important consequences because…

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 Way v The Queen

Details

AGLC: Way v The Queen [2005] HCATrans 147
Case: [2005] HCATrans 147
Decision Date

CaseChat Overview and Summary

The case of *Way v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Way, had been found guilty of murder by a jury in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal of Queensland, which dismissed his appeal. Way then sought and was granted special leave to appeal to the High Court.

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 question was whether the evidence presented at trial was capable of supporting a finding that the appellant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge of murder to manslaughter.

The High Court, in a joint judgment, considered the elements of provocation as a defence to murder under Queensland law. Their Honours noted that provocation requires an act or series of acts done by the deceased, which would have caused a reasonable man to lose his self-control. Crucially, the provocation must be sufficiently severe to be capable of causing a reasonable man to act as the accused did, and the loss of control must be sudden and temporary. The Court found that the evidence, when viewed in its entirety, did not establish a sufficient evidentiary foundation for a jury to conclude that the appellant had acted under such a loss of self-control. Therefore, the trial judge was not obliged to direct the jury on provocation.

The High Court dismissed the appeal, upholding the decision of the Court of Appeal of Queensland.

Orders