Cufley, Cathleen Mary v The Queen - [1983] FCA 107

Re: CATHLEEN MARY CUFLEY
And: THE QUEEN (1983) 76 FLR 359
No. NT G19 of 1982
Criminal Law and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Lockhart2) and Jenkinson(3) JJ.

CATCHWORDS

Criminal Law - direction to jury - murder - murder by recklessness - failure to direct that provocation relevant to murder by recklessness - consequences - provocation - whether misdirection on onus of establishing provocation

Criminal Law and Procedure - Direction to jury - Murder - Murder by recklessness - Failure to direct that provocation relevant to murder by recklessness - Consequences - Provocation - Whether misdirection on onus of establishing provocation.

HEADNOTE

The appellant was convicted of murder and sentenced to imprisonment with hard labour for life. She appealed against the conviction on grounds which went to the trial judge's direction to the jury. The grounds were directed to the issue of murder by recklessness and an alleged failure to direct that provocation was relevant to murder by recklessness.

The evidence was that the appellant had stabbed the deceased, as a result of which he died before reaching hospital. The appellant gave evidence that whilst she and the deceased were sitting in a car the deceased punched and abused her, that she had no clear recollection of having a knife in her hand or of stabbing the deceased three times as the medical evidence disclosed.

Held: (1) Per curiam, that provocation may operate as a defence in a case of murder by recklessness or reckless indifference.

Johnson v. The Queen (1976) 136 CLR 619, applied.

(2) Per curiam, that the trial judge's direction was, giving it the widest operation and viewing it in its entirety, a direction that the question of provocation should be considered in the event of a finding by the jury that the appellant killed the deceased intending to kill him and, perhaps, intending to do him grievous bodily harm; on a fair reading of the summing up, the jury would not have been left with an understanding that provocation was something they should consider if they were of opinion that the appellant had killed the deceased with reckless indifference.

Per Lockhart and Jenkinson JJ. - The misdirection was one which may have influenced the result of the trial.

Duff v. The Queen (1979) 39 FLR 315, referred to.

(3) Per Toohey J. - In assessing the weight to be given to complaints about misdirections it is necessary to keep in mind the admonition "that the adequacy of a summing up ought not to be judged upon a subtle examination of its transcript record or by undue prominence being given to any of its parts. It should be taken as a whole and as a jury listening to it might understand it".

La Fontaine v. The Queen (1976) 136 CLR 62, followed.

(4) Per curiam, that the appropriate course was not to enter a verdict of manslaughter but to order a new trial as…

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

Case: [1983] FCA 107
Decision Date: 03 JUNE 1983

CaseChat Overview and Summary

Cufley, Cathleen Mary was convicted of the murder of Eric Hyams and appealed to the High Court of Australia against her conviction and sentence. The central issue in the appeal was whether the trial judge erred in not directing the jury that provocation could be a mitigating factor in determining whether the accused acted with the recklessness necessary for murder. The case involved a complex interplay of legal principles concerning the definition of murder, the role of provocation, and the onus of proof.

The legal issues before the court required a detailed examination of the applicable law regarding murder by recklessness and the relevance of provocation. The court had to determine if the trial judge's failure to instruct the jury on the relevance of provocation to the recklessness element of murder constituted a misdirection that could have affected the verdict. This involved interpreting statutory provisions and case law to understand the scope and application of provocation as a mitigating factor in cases of murder by recklessness.

The High Court found that the trial judge did indeed misdirect the jury by not informing them that provocation could be considered in assessing whether the appellant acted with the requisite recklessness for murder. This misdirection was deemed significant as it could have influenced the jury's assessment of the appellant's state of mind at the time of the offence. Consequently, the court concluded that the conviction could not stand and ordered a new trial. The court also set aside the original verdict and conviction and remanded the appellant to custody pending the new trial.

Orders

Orders of the court

1. The verdict and the conviction of the appellant pronounced and recorded 9 February 1983 on a charge that she did murder Eric Hyams be set aside.

2. There be a new trial of the appellant upon the indictment that on or about 8 January 1982 at Darwin in the Northern Territory of Australia she did murder Eric Hyams.

3. The appellant be remanded in her present custody to appear before the Supreme Court of the Northern Territory upon her retrial unless in that court proceedings upon the indictment are otherwise terminated.

Orders accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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