Heron v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Kirby J,Hayne J,Callinan J
• Judgment Date: 08 April 2003
• Neutral Citation: 2003-0408 HCA B,[2003] HCA 17
• Docket Number: S30/2001
• Court: High Court
• Date: 08 April 2003

Michael Heron

Applicant

and

The Queen

Respondent

[2003] HCA 17

Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ

S30/2001

HIGH COURT OF AUSTRALIA

Heron v The Queen

Criminal law — Application for special leave to appeal — Applicant to argue point not raised at trial or in intermediate appellate court — Whether circumstances of the case are exceptional.

Criminal law — Murder trial — Defences — Provocation — Misdirection of trial judge — No objection to direction — No request for further directions — Significance of misdirection in circumstances of the case.

1 Gleeson CJ. It is now settled that this Court has jurisdiction to entertain a criminal appeal on a ground not taken at the trial or in an intermediate court of appeal. In Crampton v The Queen1, Hayne J and I, adopting the language of Gibbs CJ in Giannarelli v The Queen2, qualified that by saying that special leave to appeal on such a ground would only be granted in exceptional circumstances. In our separate reasons, we explained the considerations which give rise to that qualification3. Kirby J referred to ‘repeated statements in this Court [which] acknowledge that to permit a new ground to be added in this Court requires exceptional circumstances to be shown’4. Gaudron, Gummow and Callinan JJ said that the Court may perhaps only choose to grant special leave in such a case rarely, but the power should be exercised to cure a substantial and grave injustice5. Whatever the difference, if any, between circumstances that are rare and circumstances that are exceptional, it is not one upon which the outcome of the present application turns.

Gleeson CJ

2 In bothGiannarelli and Crampton, the point taken for the first time in this Court was a point of law that constituted an unanswerable defence to the charge of which the applicant had been convicted. The present case is very different.

3 The facts are set out in the reasons for judgment of Callinan J. The applicant was tried for murder following the death of a man who was stabbed in the course of a bar-room brawl. The trial judge, out of an abundance of caution, directed the jury on provocation. On the evidence, any case of provocation was extremely tenuous. The applicant did not claim to have lost self-control; the description by eye-witnesses of his behaviour indicated brutal thuggery, but not loss of self-control; and, in the context and circumstances in which it was uttered, the alleged insult proffered by the victim could hardly have been thought to satisfy the objective part of the test for provocation stated inMasciantonio v The Queen6.

4 In his directions, the trial judge did not, as submitted by counsel, reverse the onus of proof. However, he mis-stated the objective part of the test for

provocation by referring to what an ordinary person ‘must’ or ‘would’ have done, rather than what such a person ‘could’ have done.

5 Trial counsel made no complaint about the mis-direction. This, in combination with the failure to make such a complaint in the Court of Criminal Appeal, brings into play the principle enunciated inCrampton, including the qualification to that principle. That qualification is necessarily imprecise, but it is to be taken seriously. It was not a rhetorical flourish. Furthermore, in the circumstances of the present case, the failure of trial counsel to take the point now relied upon reinforces the strong impression created by a reading of the record, which is that the issue of provocation was of little, if any, practical significance.

6 It is understandable that the trial judge felt it prudent to give directions on provocation. It is also understandable that trial counsel either did not notice the error, or did not think it necessary to raise the matter for correction. In the context of the case, the error was not important. It was certainly not, like the errors inGiannarelli and Crampton, decisive of the outcome. The circumstances are not exceptional. No grave and substantial injustice has been shown.

7 Special leave to appeal should be refused.

8 McHugh J. The applicant was tried for murder before a judge and jury in the Supreme Court of New South Wales. The jury convicted him of murder although the trial judge left to the jury an alternative verdict of manslaughter based on the alleged provocation of the applicant by the deceased. The trial lasted 23 days. The Court of Criminal Appeal dismissed the applicant's appeal against the conviction. He now seeks special leave to appeal against the order of the Court of Criminal Appeal on the ground that the trial judge misdirected the jury on provocation. The question in this application is whether the applicant should be granted special leave to raise this ground despite not raising any objection to the directions on provocation at his trial or in the Court of Criminal Appeal. In my opinion, the circumstances of the case are not so exceptional that the Court should entertain a special leave application in respect of a point that was not raised at the trial or in the intermediate court of appeal.

McHugh J

9 The principal issue at the trial was whether the applicant stabbed the deceased with a knife or whether the fatal wound was the accidental result of the deceased impaling himself on a shard from a broken glass. At no stage in his evidence did the applicant suggest that he lost self-control, evidence that would have been led if he had relied on provocation as a defence. Although the applicant's defence was that the deceased died by accident, the learned trial judge left the issue of provocation to the jury. His Honour took the view that there was evidence that could justify the jury holding that the provocative conduct of the deceased made the case one of manslaughter, not murder. The relevant evidence is set out in the judgment of Callinan J, who holds that the evidence was insufficient to raise the issue of provocation. Although the evidence of provocation was weak, I think that the trial judge was justified in leaving the issue to the jury. On the applicant's version of the incident, the deceased punched him while a friend of the applicant was restraining him and then the deceased kicked him. Although the applicant gave no evidence that he then lost self-control, I think on that evidence the trial judge was probably right to leave the issue of provocation to the jury.

10 But I do not think that there is anything so exceptional or extraordinary about this case that it would be proper for this Court to grant special leave to appeal on the ground that the trial judge misdirected the jury on the issue of provocation. The applicant did not ask the trial judge for further directions on provocation to overcome the errors of which he now complains. Nor were the trial judge's directions on provocation the subject of argument in the Court of Criminal Appeal. Because that is so, this Court would grant special leave to appeal only if the circumstances of the case were exceptional7.

11 It is true that the trial judge misdirected the jury on the issue of provocation. He did so by directing the jury to consider what an ordinary person ‘must’ or ‘would’ have done, instead of directing the jury to consider what an ordinary person ‘could’ have done. But this misdirection is only one factor to be considered. Provocation was an issue that was probably technically open on the evidence. But it was an issue remote from the way the applicant conducted his case at the trial.

12 The applicant's case was that he did not have a knife with him that day and that he did not stab the deceased. But the evidence tending to prove that the applicant stabbed the deceased was overwhelming. The applicant's friend and two independent witnesses testified that the applicant had a knife in his hand while he was fighting. The applicant's friend testified that during the fight the applicant was holding the knife in his right hand ‘in an arc from left to right’. He said that he saw the applicant stab the deceased ‘more than once’. Another two witnesses also testified that the applicant stabbed the deceased. Two witnesses testified that, during the fight, someone called out ‘he's got a knife’. Witnesses also said that the deceased called out, ‘he's killed me’ or ‘he's stabbed me’ or words to that effect. The person who drove the applicant to the hotel where the fight took place said that the applicant took a knife with him to the hotel. He claimed that the applicant had said ‘your friends, you can't rely on them, they can run but knife is always your friend and is in your hands, never run away, it's always with you.’

13 All the evidence, except that of the applicant, suggested that he was the aggressor. Most importantly, the evidence, including the evidence of the applicant's friend, contradicted the applicant's claim that the deceased had punched him while his friend held him. The friend said that, after being held, the applicant broke away and ran around the pool table to get to the deceased.

14 Given the way that the applicant conducted his case and the evidence against him, I do not think there is a real chance that the trial judge's misdirection has resulted in any miscarriage of justice. In my opinion, a rational jury would be convinced beyond reasonable doubt that the deceased did not provoke the applicant. Because that is so, no miscarriage of justice has occurred. The case would not be one for the grant of special leave even if counsel for the applicant at the trial had asked the learned trial judge to withdraw the erroneous direction.

15 The application for special leave to appeal must be dismissed.

16 Kirby J. The applicant, Michael Heron, seeks special leave to appeal from a judgment of the Court of Criminal Appeal of New South Wales8. By that judgment, that Court confirmed the applicant's conviction of murder that followed a trial in the...