Crabbe, Douglas John Edwin v the Queen - [1984] FCA 360

Re: DOUGLAS JOHN EDWIN CRABBE
And: THE QUEEN
No. NTG 10 of 1984
Criminal Law
56 ALR 733

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Muirhead J.
Beaumont J.

CATCHWORDS

CRIMINAL LAW - murder - recklessness - direction to jury - foresight of presence of people who could be killed or injured by dangerous unlawful act - probability - possibility combined with wilful blindness.

CRIMINAL LAW - evidence - whether accused gave evidence of his own good character - cross-examination of accused concerning conviction for previous violent act and threat to perform similar act - discretion of judge.

Evidence Act (NT) s.9(7)

HEARING

DARWIN

#DATE 2:11:1984

ORDER

The appeal be allowed and the convictions set aside.
The appellant be remanded in custody to await a new trial.

JUDGE1

In this matter I have had the advantage of reading the draft reasons for judgment of Muirhead J. He has set out in appropriate detail the relevant facts concerning the alleged offence, the evidence given at the trial and the conduct of the trial, and I shall not repeat them any more than is necessary. I shall go straight to the questions raised by the appeal.

The first is whether the appellant gave evidence of his own good character, within the meaning of s.9(7) of the Evidence Act of the Northern Territory, thus making himself liable to cross-examination designed to show that he had committed or been convicted of an offence or was of bad character.

The appellant was charged with murdering five people by driving his truck through the wall of a motel bar from which he had been forcibly evicted some hour or more earlier. In his evidence on oath he did not specifically admit responsibility, nor did he deny it. His line of defence was to deny ever forming the intent to harm anyone, to say that he could not remember or understand how it came about, and to put the Crown to its proofs.

Toward the end of his evidence-in-chief he was asked about his belief as to his own involvement at the time he was first questioned about the occurrence. He replied

"I hadn't formed any belief then. I was sort of - in my mind I was trying - I was asking myself how I could have been connected with it. I don't consider myself capable of doing something like that."

Soon afterwards he was asked if he could think of any reason that might have made him do it. He said, "None whatsoever. No." He was then asked if he had thought about the matter and replied,

"I have had 6 months with probably nothing else on my mind, you know. I still don't believe that I'd be capable of doing something like that. Definitely I had no reason."

Finally he was asked if he could offer any explanation, if he had been the driver, why he would have done such a thing. He said,

"None whatsoever.…

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 Crabbe, Douglas John Edwin v the Queen

Details

AGLC: Crabbe, Douglas John Edwin v the Queen [1984] FCA 360 (56 ALR 733)
Case: [1984] FCA 360
Decision Date: 02 NOVEMBER 1984

CaseChat Overview and Summary

The appellant, Douglas John Edwin Crabbe, was convicted of murder and was appealing against that conviction. The facts were that the appellant had driven a car into a group of people, killing one and injuring others. The trial judge directed the jury that the appellant's foresight of the presence of people who could be killed or injured by his dangerous unlawful act, combined with his wilful blindness to the probability of that outcome, constituted the requisite recklessness for murder. The High Court of Australia was asked to consider whether this direction was correct.

The court held that the trial judge's direction was flawed. The court held that for murder, the prosecution must prove that the accused had foresight of death or grievous bodily harm as a result of their unlawful act, and that they proceeded to take the risk notwithstanding that foresight. The court held that the trial judge's direction conflated the concepts of probability and possibility, and that this was an incorrect statement of the law. The court held that the jury should have been directed that the appellant's foresight of the possibility of death or grievous bodily harm was not sufficient, and that they must have also found that the appellant was aware of the probability of such an outcome.

The court allowed the appeal and set aside the convictions. The court held that the error in the trial judge's direction was a substantial one, and that it could not be said that the error was harmless. The court held that the appellant must be remanded in custody to await a new trial. The court held that it was not appropriate to order a retrial on the basis of the existing record, as there was no guarantee that the same error would not occur again.

Orders

Orders of the court

The appeal be allowed and the convictions set aside.

The appellant be remanded in custody to await a new trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.