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Devine v The Queen

Devine v The Queen

Case [1967] HCA 35 17 October 1967

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HIGH COURT OF AUSTRALIA

McTiernan A.C.J., Kitto, Taylor, Windeyer and Owen JJ.

DEVINE v. THE QUEEN

(1967) 119 CLR 506

17 October 1967

Criminal Law

Criminal Law—Conviction—Conditional release of offenders—Common law powers—Statutory power—Powers of court on breach of condition of recognizance—Procedure—Release on condition of entering into recognizance upon condition of being of good behaviour and appearing for sentence if called upon—Conviction for subsequent offence—Crimes Act 1914-1960 (Cth)8 s. 20.*

Decisions

October 17.
The following written reasons for judgment were delivered:-
McTIERNAN A.C.J. The appellant, P. E. Devine, was sentenced in the Supreme Court at Canberra in April 1967 to imprisonment for three years. He was granted leave to appeal against the sentence in August 1967. The argument on the application for leave was treated as the argument for purposes of the appeal. The Court granted leave to appeal and ordered that Devine, who was then in gaol, be released. The publication of the reasons of the Court was deferred. (at p508)

2. In May 1965 Devine was charged in the Supreme Court at Canberra with the crime of carnally knowing a girl below the age of consent - a crime for which the offender is liable to ten years penal servitude. Devine pleaded guilty to the indictment and was convicted of the crime. (at p508)

3. The information before the judge which he could rightly consider in determining the quantum of punishment showed that the crime was committed in May 1964 ; that the girl's age was fourteen years and Devine was a few years older ; that a love affair had gone on between them for some time before he seduced her ; that a baby was born of which he acknowledged he was the father and he was willing to marry the girl in due course. There was also evidence of previous convictions of Devine, none of which was for any sexual offence, and his general character, his education, employment and family circumstances. His Honour considered it appropriate to deal with Devine under s. 20 of the Crimes Act 1914-1960 (Cth). The provisions of this section were available by reason of the Interpretation Ordinance. The result was that the judge did not pass a sentence of imprisonment. Instead he ordered that Devine be released on condition that he engaged by a recognizance to be of good behaviour for a period of three years and to appear for sentence when called on to do so. The judge dispensed him from finding sureties. He ordered that conditions be inserted in the recognizance designed to prevent Devine from meeting the girl except at his mother's house on occasions when his mother would be there and to keep him under police supervision. Devine immediately after conviction entered into a recognizance drawn in accordance with the judge's directions and was thereupon released from custody. (at p508)

4. The proceedings in which the sentence of three years imprisonment was imposed on Devine arose out of an alleged failure, in November 1966, by him…

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 Devine v The Queen

Details

AGLC: Devine v The Queen [1967] HCA 35
Case: [1967] HCA 35
Decision Date: 17 October 1967

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Devine against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence.

The primary legal issues before the Court were whether the trial judge had erred in admitting evidence of statements made by the appellant to police and whether the jury had been adequately and correctly instructed on the defence of self-defence, particularly in relation to the appellant's apprehension of danger.

The Court analysed the circumstances under which statements made by an accused to police are admissible, considering whether they were voluntary and whether their prejudicial effect outweighed their probative value. Furthermore, the judges examined the elements of self-defence as established in common law, focusing on the requirement for an honest and reasonable belief in the necessity of using force to defend oneself. The Court determined that the jury instructions on self-defence were insufficient, failing to properly convey the subjective and objective components of the defence.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders