Wu v The Queen - [1999] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S22 of 1999

B e t w e e n -
MEI QIN WU
Appellant
and
THE QUEEN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 1999, AT 11.51 AM

MR G.D. WENDLER: If the Court please, I appear for the appellant. (instructed by Van Houten Solicitors & Barristers)

MR T.L. BUDDIN, SC: May it please the Court, I appear together with my learned friend, MR P.G. BERMAN, on behalf of the respondent. (instructed by the Director of Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Before I open the appeal, can I invite your Honours to page 8 of my outline of contention. Between paragraphs 2.10 and 2.14 I have set out what might be described as some history concerning the word “twelve”, and indeed the number 12. I hope your Honours do not consider that material as a piece of esoteric irrelevance, but nevertheless, I need to make one ‑ ‑ ‑

KIRBY J: That thought did cross my mind, that it was esoteric and irrelevant, seeing as you have raised the issue. I would have been too polite to say it but - - -

MR WENDLER: I have raised it and your Honour has described your Honour’s inclination. We need not talk too much more about it, other than at point 2.11 where I have identified Professor Gullberg’s book, “Mathematics – From The Birth Of Numbers” - the publication date is 1998- and in Dr Funk’s book, also in paragraph 2.11, the publication date is 1978, and that quotation is taken from page 325.

KIRBY J: Mr Wendler, there are issues to be discussed in this appeal, and it just seems to me to be completely irrelevant material.

MR WENDLER: Yes; I only mention it for completeness. Your Honour may have found it irrelevant. There may be other members of the Court that found it perhaps not so irrelevant.

Your Honours, can I commence then by inviting your Honours to page 4 of the appeal book where there is set out the portion of the transcript taken in the District Court of New South Wales on 1 April 1998. There occurred on that day the following, and I propose to go through the transcript and identify the matters which are relevant to the central question in this appeal and that is whether or not, in all the circumstances, the discretionary process miscarried. Is there a demonstrable error in principle having regard to the way the trial judge exercised his undoubted discretion to discharge a juror during the course of the trial of the appellant? It commences with his Honour speaking to counsel:

You have heard the news I suppose. You two might not agree with this, or one of you might not, but I…

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 Wu v The Queen

Details

AGLC: Wu v The Queen [1999] HCATrans 157
Case: [1999] HCATrans 157
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Wu 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 Mr Wu had made a prior inconsistent statement, and whether the jury had been adequately directed on the issue of self-defence, particularly in relation to the subjective and objective elements of that defence. The Court also considered whether the cumulative effect of any errors amounted to a miscarriage of justice.

The Court held that the admission of the prior inconsistent statement was not an error, as it was relevant to Mr Wu's credibility. However, the majority found that the directions given to the jury on self-defence were inadequate. Specifically, the directions failed to clearly articulate that the jury must consider the circumstances as Mr Wu perceived them, including any mistaken beliefs he held, when assessing whether his response was one that a reasonable person might have made in those circumstances. The legal principle applied was that a person is entitled to rely on self-defence if they honestly and genuinely believed that it was necessary to use force to defend themselves, even if that belief was mistaken, provided that the force used was not excessive in the circumstances as they believed them to be.

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

Orders