THE QUEEN. Criminal Law-Special leave to appeal-ApplicationDirection to jury-Matters
set up on behalf of accusedReference-Adequacy-Probabilities-Evidence- Statement by accused-Confessional--Admissibility-Crimes Act 1900-1951 SYDNEY,
(N.S.W.) (No. 40 of 1900-No. 59 of 1951), SS. 27, 410. Nov. 18, 22;
Upon the trial of an accused, a qualified medical practitioner, for admin- istering to his child poison with intent to murder, the trial judge, in his direction to the jury, put very clearly and prominently before them the question of the intent to murder as the central issue in the case and drew their attention to matters tending in the accused's favour on that issue, as well as to matters supporting an inference against him. There was evidence that when a sedative is to be given to a child chloral hydrate is that more commonly used. The judge was not asked at the conclusion of his charge to put the additional argument that the accused's use of chloral hydrate would tend to weaken or even negative the inference that his intent was to kill the child.
Held, that the additional argument, which formed part of an argument on probabilities advanced on behalf of the accused, was one of fact, not law, and it was impossible to treat the omission of an evidentiary consideration of such a kind from the summing-up as a ground for granting special leave to appeal to the High Court.
In a case where evidence of a confession is sought to be adduced, and the judge is of the opinion that the confession has been freely and voluntarily given and decided to admit it, the only question for the jury to consider with reference to the evidence SO admitted is its probative value or effect. The admissibility of evidence is not for the jury to decide, and voluntariness is only a test of admissibility. Reg. v. Ozerwinski (1954) V.L.R. 483 approved Reg. v. Bass (1953) 1 Q.B. 680; 37 Cr. App. R. 51 disapproved.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.
Robert Alexander de Castro Basto, a legally qualified medical practitioner, practising at Macquarie Street, Sydney, as an eye, ear, nose and throat specialist, was charged on 22nd March 1954
in the Central Criminal Court of New South Wales before Maguire J. and a jury of twelve on an indictment containing two counts, namely: that he on 13th December 1953, at Sydney, New South Wales, (1) feloniously did administer poison to Michelle Christine Basto with intent to murder her; and (2) did attempt to commit suicide.
Basto was convicted on each count. Sentence of death was recorded against him by the direction of the judge on the first count and his Honour deferred passing sentence on the second count.
An appeal by Basto against his conviction and sentence on the first count on the ground (i) that the verdict of the jury was against the evidence and weight of evidence; (ii) that…
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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AGLC
Basto v The Queen [1954] HCA 78
Case
[1954] HCA 78
Decision Date
CaseChat Overview and Summary
The applicant, Robert Alexander de Castro Basto, a medical practitioner, sought special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. Basto had been convicted in the Central Criminal Court of New South Wales on two counts: administering poison to his infant daughter with intent to murder, and attempting to commit suicide. The Court of Criminal Appeal had dismissed his appeal against these convictions.
The legal issues before the High Court concerned the adequacy of the trial judge's directions to the jury. Specifically, the applicant argued that the judge failed to adequately direct the jury on the significance of the type of poison administered, particularly chloral hydrate, and its potential to weaken or negate the inference of an intent to murder. Additionally, the applicant contended that the admissibility and weight of confessional statements made by him to police officers should have been more thoroughly considered by the jury, particularly in light of his condition at the time of making those statements.
The High Court held that the argument regarding the significance of chloral hydrate was a matter of fact and probability, not law. The trial judge had clearly identified intent to murder as the central issue and had drawn the jury's attention to matters favouring and opposing the applicant. As the judge was not specifically asked to elaborate on the point concerning chloral hydrate, its omission from the summing-up was not a sufficient ground for special leave. Regarding the confessional statements, the Court affirmed that the admissibility of evidence is a matter for the judge, and once admitted, the jury's role is to assess its probative value. The Court disapproved of the approach in *Reg. v. Bass* which suggested the jury should determine voluntariness, reiterating that voluntariness is solely a test of admissibility. The Court found that the jury's attention had been sufficiently directed to considering whether the statements were made and how much weight to give them, and that the trial judge's charge was balanced, fair, and sufficient.
Consequently, the High Court found no ground upon which to grant special leave to appeal and refused the application.