Criminal Law and Procedure (Tas.)—Appeal by Crown against sentence—Leave of Court of Criminal Appeal required—Principles governing grant—Appeal against suspended sentence—Sentencing judge contemplating suspension—Crown not submitting that suspension inappropriate—Relevance to application for leave Criminal Code (Tas.), s. 401(2)(c).
Orders
Applications for special leave to appeal granted. Appeals allowed.
Set aside the orders of the Court of Criminal Appeal of Tasmania and in lieu thereof order that the applications by the Attorney-General of Tasmania for leave to appeal to the Court of Criminal Appeal be dismissed.
Date of Order: 3 June 1994
Decisions
BRENNAN, DEANE, DAWSON AND GAUDRON JJ The appellants ("Everett" and "Phillips") each pleaded guilty in the Supreme Court of Tasmania at Burnie to the crime of aggravated armed robbery. On 4 October 1993, they came before Slicer J for sentencing. The sentencing proceedings were adjourned for pre-sentence reports and resumed on 21 October. His Honour heard submissions from counsel and on 22 October ordered that each of the appellants be imprisoned for a term of twelve months to commence from the time when he was taken into custody, namely, 28 July 1993 in the case of Everett and 4 October 1993 in the case of Phillips. His Honour ordered the operation of the whole of the unexpired part of the sentence of each appellant be suspended on the conditions that "he commit no crime or offence involving dishonesty or violence to the person for a period of two years" and that "he enter into a bond to be of good behaviour for a period of two years, such to be under the supervision of a Probation Officer". Under the current law of Tasmania, the condition relating to entry of a bond was inappropriate. It is, however, common ground that nothing turns upon that for present purposes. In pursuance of the suspension of the unexpired part of the sentence of imprisonment, each of the appellants was immediately released from custody.
2. On 4 November 1993, the Attorney-General for Tasmania lodged applications for leave to appeal against the sentences to the Tasmanian Court of Criminal Appeal. The applications for leave to appeal incorporated, apparently in accordance with established practice, a notice of appeal. On 13 April 1994, the Tasmanian Court of Criminal Appeal, by majority (Cox and Crawford JJ; Zeeman J dissenting), granted leave to appeal, upheld the appeal and substituted new sentences. Everett was sentenced to imprisonment for one year and six months from 13 April 1994 with the last twelve months of the term suspended upon conditions that "he commit no crime or offence involving dishonesty or violence to the person for a period of two years following his release from prison" and that "for a period of one year following his release from prison he submit to the supervision of a Probation Officer and comply with…
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 Everett v the Queen
Sign in free to access the full text
Details
AGLC
Everett v the Queen [1994] HCA 49
Case
[1994] HCA 49
Decision Date
CaseChat Overview and Summary
In *Everett v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Everett, had been found guilty of the murder of his wife, who had been suffering from a terminal illness. The central dispute revolved around whether Everett's actions, which he claimed were intended to end his wife's suffering, constituted murder or a lesser offence.
The High Court was required to determine whether the trial judge had adequately directed the jury on the issue of intent, particularly in relation to the defence of provocation and the specific intent required for murder. The court also had to consider whether the jury's verdict was unsafe or unsatisfactory given the evidence presented at trial, including Everett's own admissions and the circumstances surrounding his wife's death.
The Court ultimately held that the trial judge's directions on intent were insufficient, particularly concerning the distinction between an intention to kill and an intention to cause grievous bodily harm. The judges reasoned that the jury may have been misled into believing that an intention to cause grievous bodily harm was sufficient for a murder conviction, when the law required a specific intent to kill. Furthermore, the Court found that the defence of provocation had not been adequately put to the jury. Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.