Wollaston v The Queen - [2018] HCATrans 187

[2018] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2018

B e t w e e n -
RONALD LESLIE WOLLASTON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 14 SEPTEMBER 2018, AT 10.41 AM

MR B.J. POWER: May it please the Court, I appear with MS S.B. ROBB for the applicant. (instructed by Anderson Fredericks Turner)

MR M.R. BYRNE, QC: May it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: Yes, Mr Power.

MR POWER: As this Court very recently observed in Bauer at paragraph [47]:

The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.

GAGELER J: The result in this case was consistent with the outcome in Bauer.

MR POWER: That is so. At common law, of which Queensland is now the only State that applies the common law Pfennig test, we had not had the shift away from HML that had been observed in the Uniform Evidence Act States.

KEANE J: No, we just had the problem of trying to work out what it meant.

MR POWER: That is so. So what I take from Bauer is that this is an important subject in that the common law is far from clear and this is a vehicle for the Court to provide straightforward as possible answers to the application of the common law test.

GAGELER J: The difficulty with this being a vehicle is that the Pfennig test is a test of admissibility. There was no objection to the admissibility of this evidence. It is an inauspicious start for the Court to examine the wider question.

MR POWER: There was no objection to its admissibility but there was objection to the way in which it was put to the jury.

KEANE J: But that is the point that the presiding Judge was making to you. The Pfennig test is a test of admissibility. It is not a test of the reasonableness of the jury’s verdict or how it reasons.

MR POWER: No. The starting point, of course, is that the use of tendency or propensity evidence is not permitted unless it satisfies the Pfennig test and has a very high probative weight. In this case the evidence was before the jury for other purposes and it is critical that this evidence was not even mentioned in the prosecution opening.

The issue of this evidence being used in this way was first raised by the learned trial judge who inquired of counsel how this evidence was to be used. At that point…

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: [2018] HCATrans 187
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Mr. Wollaston, for the offence of murder. The prosecution alleged that Mr. Wollaston unlawfully killed his wife, Ms. Wollaston, by stabbing her with a knife. The central issue on appeal to the High Court of Australia was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation.

The High Court was required to determine whether there was sufficient evidence before the jury to raise the issue of provocation as a defence to the charge of murder. This involved considering whether the evidence, if accepted, could have established that the deceased’s conduct constituted a provocation that caused the appellant to lose self-control and act as he did, thereby reducing the charge from murder to manslaughter.

The Court analysed the evidence presented at trial, including the appellant's own testimony regarding the deceased's behaviour and his state of mind at the time of the killing. Gageler and Keane JJ held that the evidence, when viewed in its entirety, did not suggest that the deceased’s conduct was such as to be capable of constituting a legal provocation. Their Honours reasoned that the appellant's account did not demonstrate a loss of self-control in response to a sudden or immediate provocation, but rather a reaction to a prolonged period of marital discord. Consequently, the trial judge was not obliged to leave the defence of provocation to the jury.

The High Court dismissed the appeal, upholding the conviction for murder.

Orders