Criminal Law—Jury trial—Evidence sufficient to sustain conviction—Power of judge to direct verdict of not guilty on ground that verdict of guilty would be unsafe and unsatisfactory. Evidence—Criminal trial—Corroboration—Standard of proof of particular facts.
Decision
DEANE, DAWSON, TOOHEY, GAUDRON and McHUGH JJ. The applicant, Richard John Doney, seeks special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales dismissing an appeal against his conviction for being knowingly concerned in the importation of cannabis resin. See s.233B(1)(d) of the Customs Act 1901 (Cth). The cannabis resin was secreted in the core section of certain bolts of voile cloth packed in boxes which, in turn, were packed in a container consigned by sea from Karachi to Sydney. The named consignee, a fabric importer, had not ordered the cloth. Its name had been used without its authority.
2. The prosecution case depended on the evidence of an accomplice, Gerard Clayton Freeman. He gave evidence that he had been approached by the applicant to arrange customs clearance of a container of cloth, and that later, but shortly before the consignment arrived in Sydney, the applicant made the shipping papers available to him and informed him that there would be some cannabis resin in the container.
3. Freeman was by no means a perfect witness. Not only was he an accomplice who attracted the usual warning that it would be dangerous to convict on his uncorroborated evidence, but his evidence was, on his own admission, false in a number of respects. He also admitted to having given a false account when first interviewed by investigating police, to having departed in some respects from evidence previously given and to having given evidence designed to conceal past dishonest dealings which had resulted in convictions for offences of dishonesty. It is clear that the trial judge formed an unfavourable view of his truthfulness as a witness.
4. The application for special leave to appeal raises two issues. The first is whether there was any evidence capable of corroborating the account given by Freeman. The second is whether the trial judge erred in holding that he had no power to direct the jury to enter a verdict of not guilty on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory. The Court of Criminal Appeal held that the applicant's conviction was not unsafe or unsatisfactory. That aspect of its decision is not challenged other than on the basis that there was nothing to corroborate the account given by Freeman. Rather, it is put that, even if there was corroborative evidence, the applicant was denied the right to have the trial judge who heard and observed the witness, Freeman, determine whether, in his view, a guilty verdict would be unsafe or unsatisfactory.
5. 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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AGLC
Doney v The Queen [1990] HCA 51
Case
[1990] HCA 51
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Doney, against his conviction for murder. The applicant had been found guilty of the murder of his wife and sentenced to life imprisonment. The appeal concerned the trial judge's directions to the jury regarding the defence of provocation.
The central legal issue before the High Court was whether the trial judge's directions on provocation were adequate and correctly stated the law. Specifically, the court had to determine if the jury had been properly instructed on the elements of provocation, including the requirement that the provocation must be such as to cause an ordinary person to lose self-control, and that the act of killing must be attributable to that loss of self-control.
The High Court, in a joint judgment, found that the trial judge's directions were flawed. Their Honours explained that provocation is a partial defence to murder, reducing the charge to manslaughter, if the act of killing was induced by such provocation as would cause an ordinary person to lose self-control. The jury must be satisfied that the provocation was sufficient to have that effect, and that the accused's act was a consequence of that loss of self-control. The court held that the directions given at trial did not adequately convey these essential elements to the jury, creating a risk that the jury might have convicted the applicant of murder when the defence of provocation, if properly understood and applied, might have been available.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered that the applicant be retried for the offence of manslaughter.