Criminal Law—Murder—Alternative verdict of manslaughter—Directions to jury—Duty of judge—Failure to direct on excessive force in self-defence where defensive act not excessive—Failure to direct as to provocation—Elements necessary to justify direction on provocation. Criminal Law—Appeal—Leave to appeal to High Court from Supreme Court of Northern Territory—Question of mixed law and fact—What constitutes—No miscarriage of justice—Powers of High Court—On appeal—On application for leave to appeal—Northern Territory Supreme Court Act 1961 (Cth), s. 47 (1) (c)
Decisions
August 22. The following written judgments were delivered:- McTIERNAN J. Pursuant to an order of this Court granting him special leave, the prisoner appeals against his conviction in the Supreme Court of the Northern Territory of the murder of Andreas Koklas. The High Court is asked to exercise its powers under s. 47 of the Northern Territory Supreme Court Act 1961 to substitute a verdict of manslaughter for the verdict of murder or in the alternative to order a new trial. Power to order a new trial is conferred by s. 36 of the Judiciary Act 1903-1965. This power is saved expressly by s. 48 of the Northern Territory Supreme Court Act 1961. The grounds of the appeal are (1) that the trial judge gave a misdirection in respect of manslaughter and withdrew the question of provocation from the jury although, so it is submitted, there was evidence for them to consider on that question; and (2) that the trial was irregular for the reason that the evidence of two witnesses to each of whom s. 25A of the Oaths Ordinance 1939-1967 (N.T.) was applicable was not taken in accordance with this provision. The prisoner was presented on an information which charged murder. The charge was in the form required by s. 17 of "The Criminal Law Consolidation Act and Ordinance 1876 to 1960". Murder is an offence under s. 5; manslaughter is an offence under s. 16. By virtue of s. 18 self-defence, if made good, is a defence to murder. The Act does not expressly deal with provocation. (at p188)
2. The trial lasted over several weeks. The case for the prosecution occupied most of the time. The prisoner gave evidence on oath; he did not call any witness. The learned trial judge commented in the summing up as follows:
"A great deal of the evidence which you heard from the prosecution in the case was directed to showing a connexion between the accused and the deceased and now that the defence evidence has been put before you much of this evidence becomes simply insignificant."
The evidence showing such connexion does not need to be discussed in order to decide this appeal. The evidence which is important for present purposes includes, of course, the medical evidence describing the injuries to the deceased's body, and the potential of a rock found near his body to inflict those injuries; 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
Da Costa v The Queen [1968] HCA 51
Case
[1968] HCA 51
Decision Date
CaseChat Overview and Summary
The case of *Da Costa v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Da Costa, had been found guilty of the murder of his wife and sentenced to death. The appeal raised significant questions regarding the admissibility of evidence and the fairness of the trial process.
The central legal issues before the High Court were whether certain evidence, specifically a confession made by the appellant to police, had been improperly admitted at trial. This involved an examination of the circumstances under which the confession was obtained and whether it was voluntary. Furthermore, the Court considered whether the trial judge had adequately directed the jury on the relevant legal principles, particularly concerning the issue of intent and the defence of provocation.
The High Court's reasoning focused on the principles governing the admissibility of confessions. It was held that a confession must be voluntary to be admissible, meaning it must not have been induced by threats, promises, or other improper pressure. The Court scrutinised the evidence relating to the appellant's interview with police, considering the length of questioning and the conditions under which the confession was made. The judges also reviewed the trial judge's summing up to the jury, assessing whether it accurately and comprehensively explained the elements of murder and any potential defences.
The appeal was dismissed, with the High Court finding no error in the admission of the confession or in the directions given to the jury. Consequently, the conviction and sentence were affirmed.