WILSON AND DAWSON JJ.: The applicant was convicted by a jury upon a charge of robbery with violence, an offence constituted by s.240 of the Criminal Code (Tas.) ("the Code"). The Crown case was that, at about 12.40 p.m. on 4 February 1987, the offender entered the premises of a finance company in George Street, Launceston and, after threatening violence to the young woman in charge of the office, stole about $3,220. He was armed with a revolver. After the robbery, he left the premises by the front door and entered a taxi that was standing in a nearby rank. He was driven a short distance through the city before being dropped in the vicinity of a park. He was seen running through the park in the direction of a public toilet. A few minutes later the clothes he was seen to be wearing as he ran through the park were found in the toilet. He was nowhere to be seen.

2. A rough description of the offender was given by the woman who was robbed, the taxi driver who drove him around the city block, another taxi driver whose car was waiting on the rank and two schoolboys who were in the park. The description given by these witnesses was summarized succinctly by Neasey J. in the Court of Criminal Appeal of Tasmania as follows:
"The accounts overall were such as to be not
inconsistent with the person described being the applicant, but they could have been descriptions of any number of persons of similar build and age." Nor was there any later identification of the applicant as the offender. The victim of the robbery was shown a number of photographs, which included one of the applicant, but she was unable to make any identification. One of the taxi drivers attended the Court of Petty Sessions on the morning following the robbery and, on having a solicitor indicate the applicant, said that he had never seen him before. An identification parade was offered to the applicant but he declined to take part "until I see my lawyer".

3. In substance, the case against the applicant depended wholly on the evidence of four police officers. In point of time, the first was Sergeant Otley who said that at about 12.30 p.m. on the day of the robbery he was walking along George Street when he saw the applicant walking in the opposite direction on the other side of the street in the vicinity of the premises which were later robbed. He knew the applicant and on this occasion he observed him for fifteen to twenty seconds before the applicant turned down a laneway and was no longer in view. The sergeant described the clothing the applicant was wearing but…

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 Carr v The Queen

Details

AGLC: Carr v The Queen [1988] HCA 47
Case: [1988] HCA 47
Decision Date: 27 September 1988

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Carr, against his conviction for murder. The dispute arose from the applicant's assertion that the trial judge had erred in law by failing to direct the jury on the defence of provocation.

The central legal issue before the High Court was whether the evidence presented at trial was capable of supporting a finding of provocation, thereby necessitating a direction to the jury on that defence. This involved an examination of the elements of provocation as a defence to murder under Australian criminal law.

The Court reasoned that for provocation to be a defence, there must be evidence that the act of the deceased was a cause of the applicant's loss of self-control, and that the applicant's response was a response to that provocation. The Court found that the evidence did not establish that the deceased's conduct, as alleged by the applicant, was a cause of his loss of self-control. Therefore, the trial judge was not obliged to direct the jury on provocation. The appeal was dismissed.

Orders