Wildsmith v The Queen - [2015] HCATrans 18

[2015] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S226 of 2014

B e t w e e n -
DAVID WILDSMITH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 12.29 AM

MR G.R. JAMES, QC: May it please the Court, I appear with my learned friend, MR P.D. LANGE, for the applicant. (instructed by Murphy’s Lawyers)

MR J.H. PICKERING, SC: I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Mr James.

MR JAMES: Your Honours, the application for special leave has two grounds. They overlap quite considerably, and both grounds, we assert, are matters that raise serious concerns for the administration of justice and, in particular, the application of section 6(1) of the Criminal Appeal Act 1912 (NSW). Section 6(1) is in the common form, although there are variants throughout the States but, in essence, that section imposes on a Court of Criminal Appeal the duty, when determining an appeal in ordinary cases, to:

allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice –

The section goes on to deal with the circumstances in which there has not been a substantial miscarriage of justice. In a long line of authority, commencing, really, with M and going right through to SKA ‑ ‑ ‑

BELL J: Mr James, the Court of Criminal Appeal here purported to apply M and its later adoption by this Court in SKA. To that extent, do you accept the court applied the correct principle?

MR JAMES: No. It is our submission that the court enunciated the principle, but did not correctly apply it.

BELL J: Yes, all right. It failed to apply it in what respect?

MR JAMES: If I take your Honours quickly to the relevant passage in the judgment of Justice McClellan, who delivered the judgment to which all others assented, in the application book at page 299, paragraph 53.

BELL J: Well, now, his Honour says that he has reviewed the whole of the evidence.

MR JAMES: Yes.

BELL J: He acknowledges that there are:

inconsistencies in the evidence given by the witnesses –

I think a little earlier in his reasons, his Honour has noted that the events took place within a very short period of time and it was a violent scene, and that, his Honour considered, provided an explanation for the inconsistencies which he detected.

MR JAMES: Your Honour, at paragraph 11 his Honour referred…

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: [2015] HCATrans 18
Decision Date

CaseChat Overview and Summary

In *Wildsmith v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal against a conviction for murder. The appellant, Wildsmith, had been found guilty of murder by a jury and sentenced to imprisonment.

The central legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation. Specifically, the court had to determine if there was sufficient evidence presented at trial to raise an issue of provocation, thereby necessitating a direction to the jury.

Bell and Gageler JJ analysed the evidence adduced at trial, including the appellant's own testimony and other witness accounts, to assess whether it could have supported a finding that the appellant acted under a sudden or temporary loss of self-control caused by provocation. The court applied the principles established in *Stingel v The Queen* and *Osland v The Queen*, which outline the threshold for raising the defence of provocation and the duty of the trial judge to direct the jury accordingly. Their Honours concluded that the evidence did not, as a matter of law, raise an issue of provocation, and therefore, the trial judge was not obliged to direct the jury on this defence.

The appeal was dismissed.

Orders