Young v The Queen - [2021] HCATrans 45

[2021] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B51 of 2020

B e t w e e n -
BRADLEY WENDELL YOUNG
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 2.01 PM

MR S.C. HOLT, QC: May it please the Court, I appear with MS A.R. HUGHES for the applicant. (instructed by Jasper Fogarty Lawyers)

MR L.K. CROWLEY, QC: May it please the Court, I appear with my learned friend, MS P. KINCHINA, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ: Yes, thank you, Mr Holt.

MR HOLT: May it please the Court. We need leave to proceed out of time and seek that leave, may it please the Court.

KIEFEL CJ: Is there any objection?

MR CROWLEY: Not opposed, your Honours.

KIEFEL CJ: You have that extension.

MR HOLT: May it please the Court. If the Court pleases, I propose to start with what is proposed ground 2 in the application. The reason for that is that all three grounds which reflect what we respectfully submit are clear errors that were made in the Court of Appeal all flow, to some extent, from that which is captured in ground 2, which is the changing nature of the prosecution case.

What occurred here, in our respectful submission, and the reason why there has been both a…..specific injustice done here as well as raising matters of general and public importance is that we had a Crown case that was so complex and large that in order for a jury to properly understand it – in order for the defendant to receive a fair trial – it required careful particularisation, both as to the legal basis for criminal liability and to the acts and omissions, the conduct which was said to make good all of the counts but in particular here count 1, or the Westpac fraud charge, if I can put it that way.

As the Court knows, it was a 70‑day trial with 4,000 documents tendered, but only 1,700 of which approximately were referred to overtly in the course of the evidence. As the application book shows, the jury was provided with a database of those 4,000 documents at the beginning of its deliberations and returned verdicts only five hours later.

In terms of the changes that happened to the prosecution case against that background, they were significant, in our submission. The first is, of course, that the entire legal basis for criminal liability in respect of count 1 changed on day 54 of the trial. May I take the Court very briefly to application book page 196, where the particulars – because here they were given at the beginning of the trial, are set out at paragraphs [94] and following.

At paragraph [95], the Court will see that the case,…

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 Young v The Queen

Details

AGLC: Young v The Queen [2021] HCATrans 45
Case: [2021] HCATrans 45
Decision Date

CaseChat Overview and Summary

In *Young v The Queen*, the High Court of Australia considered an appeal by the applicant, Young, against his conviction for murder. The applicant had been found guilty by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The High Court granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to determine if the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to cause an ordinary person to lose self-control, and the subjective elements, namely whether the applicant himself had lost self-control.

The High Court held that the trial judge's directions on provocation were insufficient. Their Honours explained that a proper direction requires the jury to consider both the subjective state of the accused and the objective standard of an ordinary person. The jury must be satisfied that the provocation was capable of causing an ordinary person to lose self-control, and that the accused, in fact, lost self-control as a result of that provocation. The failure to adequately explain these components meant the jury may not have properly considered the defence.

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

Orders