Criminal Law—Murder—Case for prosecution dependent on circumstantial evidence—Whether conviction improper unless circumstances inconsistent with any rational conclusion other than guilt.
Decisions
October 10. The following written judgments were delivered:- McTIERNAN J. I am of the opinion that special leave to appeal should not be granted. It would be a departure from the traditional practice of this Court to grant the application. (at p85)
2. This is a motion brought by Domenico Barca in purported pursuance to s. 35 (1) (b) of the Judiciary Act 1903-1969 (Cth) for special leave to appeal from a judgment of the Supreme Court of New South Wales constituted as the Court of Criminal Appeal dismissing an appeal under the Criminal Appeal Act, 1912, as amended, (N.S.W.) against a conviction on indictment for the crime of the murder - Crimes Act, 1900, as amended, (N.S.W.), s. 19 - of Raffaele Petula at Llandilo, New South Wales, on or about 27th September 1973. (at p85)
3. Section 35 (1) provides, so far as material, that the appellate jurisdiction of the High Court with respect to judgments of the Supreme Court shall extend to any judgment whether final or interlocutory or whether in a civil or criminal matter, "with respect to which the High Court thinks fit to give special leave to appeal". (at p85)
4. The deceased, Raffaele Petula, was the husband of Grazzia Petula, a sister of the applicant. The deceased and his wife lived at 171 Great Western Highway in the town of St. Marys, New South Wales, and the applicant lived with his wife at 121 Wrench Street, Cambridge Park, New South Wales. All were born in the Italian province of Calabria. The applicant was nearly thirty-seven years of age at the time of the murder of Raffaele Petula. He emigrated from Italy to Australia about twenty-two years ago and has been a naturalized Australian for approximately fourteen years. On Friday evening, 28th September 1973 the deceased's body was found in a rubbish dump in a lonely area of bush at Llandilo, New South Wales, partially concealed by a mudguard and felt. The deceased had been shot twice in the head with a .22 rifle, his skull was fractured and in the opinion of the doctor who performed the post mortem, this could have been caused by heavy clubbing over and around the head with a blunt object or instrument. (at p86)
5. Salvatore Manna, a witness called for the Crown, gave evidence of what he said was a Calabrian custom that if a woman was dishonoured by her husband he was liable to be killed according to the special custom called putting a cross on him. The paths of the two bullets, one fired through the nose, the other through the ear, into the head, intersected within the skull of the deceased in the form of a cross. The…
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
AGLC
Barca v the Queen [1975] HCA 42
Case
[1975] HCA 42
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Mr. Barca, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal to the High Court concerned the admissibility of certain evidence and the directions given by the trial judge to the jury.
The central legal issues before the High Court were whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the judge's summing up to the jury contained misdirections regarding the elements of murder and the defence of provocation. Specifically, the court had to determine if the evidence of prior convictions was unfairly prejudicial and if the jury had been adequately instructed on the subjective and objective elements required to establish provocation as a defence.
The High Court, in a joint judgment, allowed the appeal. Their Honours held that the admission of evidence of the applicant's prior convictions was unduly prejudicial and that the trial judge had failed to adequately direct the jury on the defence of provocation. The court found that the jury could not have been satisfied beyond reasonable doubt that the applicant had not acted under provocation, given the evidence presented and the inadequate directions. The principles applied concerned the admissibility of evidence of character and prior convictions, and the correct application of the law relating to provocation, including the requirement for the provocation to be such as would affect a reasonable man.
Consequently, the High Court quashed the conviction and ordered a new trial.