Gammage v The Queen

[1969] HCA 68

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Windeyer and Owen JJ.

GAMMAGE v. THE QUEEN

(1969) 122 CLR 444

22 December 1969

Criminal Law

Criminal Law—Murder—Alternative verdict of manslaughter—Right of jury to bring in alternative verdict—Duty of trial judge—Crimes Act, 1900, as amended (N.S.W.), s. 23 (2)*.

Decisions

December 22.
The following written judgments were delivered : -
BARWICK C.J. The question for this Court on this application for special leave to appeal is whether a jury, in returning its verdict on a charge of murder, though satisfied to the requisite degree of all the elements of that charge, may nonetheless properly return a verdict of manslaughter. Such a verdict has been referred to in argument as a merciful verdict, not in the sense that, taking a merciful view of the facts, the jury have not been sufficiently satisfied of all the elements of the crime of murder but in the sense that in point of compassion they have spared the accused the proper consequence of their satisfaction that he was guilty of that crime. (at p445)

2. The current of authority in New South Wales, where this trial was had, may be said to be fairly settled in favour of the view that such a verdict may properly be returned and that, if asked to do so by an accused, or if asked if it may do so by the jury, a trial judge is bound to inform the jury of its capacity in any case to return a verdict of manslaughter on such a charge, though there is some ambiguity in the judicial expression of this view. (at p445)

3. The learned trial judge spoke to the jury in this case as follows :

" . . . You must not, as it were, say to yourselves, 'We are satisfied it is murder but we have the right to bring in manslaughter and although we think it is murder we are going to be merciful to this man and find him guilty of the lesser offence' . . . ." (at p445)

4. According to decisions in New South Wales which as a trial judge his Honour, in my opinion, ought to have followed, his direction, in my opinion, was erroneous ; it was not merely unnecessarily emphatic. If so large a question as a challenge to the existing practice in criminal trials in that State were in mind, it might have been better for the Crown to have required such a direction and for the judge to have rejected it, thus raising the point without bringing the ultimate verdict of the jury into any jeopardy. (at p446)

5. However, all that is now by the way. The matter is now before us by way of an application for special leave to appeal. As a Court of Appeal in the judicial hierarchy of that State, it becomes our duty to decide whether or not the decisions in New South Wales are correct and, if not, whether nonetheless, because of what is put before us as a fairly entrenched practice in that State, supported by those decisions, they should be allowed to stand. (at p446)

6. I have considered the second of these matters, realizing the considerations there are against disturbing a practice grounded upon a course of decision. But it seems to me that the question posed for the Court by the application on behalf of the applicant is whether the direction in fact given was correct in law, not merely whether it was correct according to local practice or opinion. No doubt the fact that there has been a long standing opinion in New South Wales applied with some frequency in practice must be a cogent reason for the closest examination of the authorities in the search for material which may support that opinion and practice. In default, however, of any such, or any sufficient such support, this Court, in my opinion, cannot further countenance that opinion and practice if it concludes that it is, in the opinion of the Court, unlawful. (at p446)

7. There is an additional reason for this course in that the decisions of this Court are binding on all the courts of Australia, no matter from which judicial system within Australia the matter in which the decision is given has come. Uniformity of precedent is thus secured. (at p446)

8. Reg. v. Stone (1965) 84 WN (Pt 1) (NSW) 361 expressly decides "that if the jury asks a question about this matter, or counsel for the accused raises the issue, it is incumbent upon the judge to inform the jury that it has the right, pursuant to the Crimes Act, 1900, as amended, s. 23 (2) to return a verdict of manslaughter, while acquitting of murder, whenever it thinks that the act charged does not amount to the greater crime but does amount to the lesser one". This statement taken from the headnote of the case is perhaps ambiguous. But it is clear from the following passage in the judgment of Collins J. that it was not intended that the jury should be limited in returning a verdict of manslaughter to the case where they were not satisfied of all the elements of the crime of murder (1965) 84 WN (Pt 1) (NSW) at pp 367-369 :

"In Brown v. The King (1913) 17 CLR 570 , it was held by the High Court that on a trial for murder the jury are entitled under s. 23 (2) of the Crimes Act 1900, as amended, to bring in a verdict of manslaughter even though on the evidence the case is one of murder or nothing and that, therefore, when in answer to a question by the jury whether they were at liberty to find any other verdict than guilty or not guilty the judge told them they were not, this was a misdirection. Nevertheless, it is also a misdirection for a judge to leave an issue of manslaughter for the jury's consideration where, on the evidence, the case is one of murder or nothing (Mraz v. The Queen (1955) 93 CLR 493 ; R. v. Gauthier (1943) 29 Cr App R 113 ). The apparent paradox is resolved by Dixon J., as he then was, in Packett v. The King (1937) 58 CLR 190, at p 213 where the following passage appears : 'If the judge presiding at the trial of an indictment of murder is of opinion that the evidence discloses no matter capable of forming provocation, or that the matter alleged by the prisoner as provocation is not capable of doing so, it is, of course, proper for him to direct the jury to that effect. But, under the code as at common law, it remains within the power of the jury to find a verdict of manslaughter, even although it means disregarding the direction. To tell the jury that they have not such a power is to state what is not correct in law and a prisoner is entitled to complain in a Court of Criminal Appeal of such a direction. There is all the difference between such a direction and a direction that the evidence given upon a trial for murder does not support a verdict of manslaughter. If a judge is of opinion that because such a verdict implies findings of fact that are not reasonably open the jury ought not to return it, he may so direct them without necessarily usurping the functions of the jury, and, if his opinion is correct in law, the verdict may stand. Lawyers have no difficulty in apprehending the distinction between, on the one hand, the impropriety of finding without evidence facts amounting to manslaughter, and, on the other hand, the existence of a right to return a verdict of manslaughter although it be a wrong verdict.' The reference in the final sentence to the right of a jury to return a verdict of manslaughter even though it be a wrong verdict is echoed in more recent cases by reference to the privilege or the right of a jury on an indictment in a trial of murder to return 'a merciful verdict of manslaughter'. In R. v. Surridge (1942) 42 SR (NSW) 278, at p 281 the contrary view is expressed in most trenchant terms by Jordan C.J. where, discussing Brown v. The King (1913) 17 CLR 570 , he said : 'The case does not decide, as it appears to have been sometimes supposed, that notwithstanding that the jury are satisfied beyond reasonable doubt that the accused is guilty of murder they are nevertheless entitled to be false to their judicial oaths, to acquit him of murder, and to find him guilty of manslaughter instead.' However, the view of Jordan C.J. has not prevailed. Specific reference was made to this passage in the joint judgment of Williams, Webb and Taylor J.J. in Mraz v. The Queen (1955) 93 CLR 493 : 'The evidence at the trial and the addresses of counsel occupied two days and the Crown case was that the death of the deceased had been caused by acts of the appellant done during the commission of the crime of rape and this being so, it was a case of murder or nothing. Nevertheless, it was competent for the jury to return a verdict of manslaughter (see Beavan v. The Queen (1954) 92 CLR 660 , and the cases therein cited) for this appears to be a result of judicial decision in spite of the opening words of s. 23 (2) (cf. the observations of Jordan C.J. in R. v. Surridge (3)).' Section 23 (2) on its face gives support to the view expressed by Jordan C.J. in the Surridge Case, for it reads : '23. (2) Where, on any such trial (i.e. on a trial of a person for murder) it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly.'

The opening words of this subsection appear plainly enough to require that the jury be satisfied that there is no case of murder but to be satisfied that there is a case of manslaughter (presumably on the evidence) ; yet by a process of judicial interpretation over many years, these words have been virtually read out of the Act and in Beavan's Case it was stated in the joint judgment of Dixon C.J., McTiernan, Webb, Fullagar and Taylor JJ. that the position was the same at common law. There is a learned article by Mr. H. A. Snelling, Q.C., Solicitor-General for the State of New South Wales, which appears in 32 Australian Law Journal, at p. 137, which suggests that this approach is out of harmony with the law of England and New Zealand (inter alia), but it appears to me nevertheless that it is undoubtedly the law in this State as the result of decisions not only of the Full Court of New South Wales but also of the High Court of Australia. Although on no view of the evidence in a trial of murder is there any basis for a verdict of manslaughter, notwithstanding the terms of s. 23 (2), if the jury ask a question or counsel for the accused suggests it, it is incumbent upon the judge to inform the jury that they have the power to return a verdict of manslaughter, although he is entitled, if not bound, to direct them in the strongest terms that they should not return such a verdict. The quotations from a number of authorities which follow in my view, bear out this contention." (at p448)

9. I have carefully searched the reported decisions and the early writings dealing with the common law of murder and manslaughter but I have not found there any material which would justify the impression which is conveyed by the passage from the judgment in Reg. v. Stone (1965) 84 WN (Pt 1) (NSW) 361 . In this connexion I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Menzies and I agree with his analysis of the case law and his conclusions as to the position at common law, and as to the proper construction of s. 23 (2) of the Crimes Act of New South Wales. (at p449)

10. It seems to me that the impression that the jury, though satisfied of murder, might properly return a verdict of manslaughter as an act of compassion has mistakenly arisen from the circumstance that the common law developed the view that manslaughter, though not charged, might be regarded as an alternative verdict in a case where the crime actually charged, namely murder, had not been made out. (at p449)

11. A classical statement of the position at common law of the time is to be found in Hale's Pleas of the Crown (1800) vol 1, p. 448 where it is said :

"Murder and manslaughter differ not in the kind or nature of the offence, but only in the degree, the former being the killing of a man of malice prepense, the latter upon a sudden provocation and falling out. And therefore it is, that upon an indictment of murder the party offending may be acquitted of murder, and yet found guilty of manslaughter, as daily experience witnesseth, and they may not find him generally not guilty, if guilty of manslaughter. In an appeal of murder it is agreed on all hands, that the jury may find him not guilty of the murder, and guilty of manslaughter ; this was accordingly ruled P. 34 Eliz. B. R. the case of Wroth v. Wigges Cro. Eliz. 276, P. 5 Jac. B. R. n. 20. Pellet and Barendon, P. 7 Jac. B. R. n. 11 ; but it hath been held, that although upon an indictment of murder, if the party appear to be guilty of manslaughter, the jury ought not to acquit him generally, but find him guilty of manslaughter ; yet in an appeal of murder, though the jury may, if they please, find him guilty of manslaughter, if the fact be such, yet they may find generally, that he is not guilty, because it is the suit of the party, and he should lay his case according to the truth. With this agrees H. 38 Eliz. B. R. Penryn and Corbett Cro. Eliz. (464), H. 38 Eliz. B. R. B. 183, M. 22 Jac. B. R. L. 278. Blount's Case 2 Roll. Rep. 460, but it was held P. 2 Car 1. in Baffage's Case Latch 126, that they may not in such a case find a general verdict of not guilty, but must find him guilty of manslaughter, because included in murder, as well in case of an appeal, as in case of an indictment, and so it seems the law is."

This view of the common law is, in my opinion, precisely reproduced by the relevant parts of s. 23 (2) of the Crimes Act, 1900, of New South Wales in these terms :

"23. (2) Where, on any such trial, it appears that the act or ommision causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly : Provided always that in no case shall the crime be reduced from murder to manslaughter, by reason of provocation, unless the jury find : - (a) That such provocation was not intentionally caused by any word or act on the part of the accused ;

(b) That it was reasonably calculated to deprive an ordinary person of the power of self-control, and did in fact deprive the accused of such power, and,

(c) That the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life." (at p450)

12. Out of the circumstance that, though not charged, manslaughter if made out may be found on an indictment of murder, there naturally arises the obligation to tell the jury if they ask, or if the accused requires it, that this alternative verdict is open to thm if that is their view of the facts. Failure to so advise them will give rise to a justifiable complaint on the part of the prisoner. But, part of that advice should, in my opinion, be a clear statement of the occasion on which the jury might properly return a verdict of manslaughter. Dixon J. in Packett v. The King (1937) 58 CLR 190 adverted to this matter but some part of his reasons may, in my respectful opinion, be open to serious misconstruction. As his Honour points out, if there be no material capable of forming a basis for a finding of provocation the jury should be so advised. They should in that connexion, in my opinion, be told that a verdict of manslaughter could not properly be returned by them for the reason of provocation alone : and if the case be one, as on relatively rare occasions it might be, in which, because of its particular facts and circumstances, only a verdict of murder or one of acquittal is possible on any view of those facts and circumstances, they should be told that there is no basis on which they could properly find manslaughter. Of course, if a jury improperly returns a verdict of manslaughter when there is in fact no material on which such a verdict may properly be returned, the trial judge may request their reconsideration of the matter : but if they persist in the verdict, he must in the end accept it. His Honour covered this situation in his judgment in Packett v. The King (1937) 58 CLR, at p 213 by the sentence "But, under the code as at common law, it remains within the power of the jury to find a verdict of manslaughter even though it means disregarding the direction". This sentence properly understood lends no support, in my opinion, to the view that the jury may properly return such a verdict though they are satisfied that the crime of murder was committed. I do not read the next sentence of his Honour's reasons in that case as indicating that a judge may not tell the jury, where the occasion is appropriate, that they cannot properly return a verdict of manslaughter. It seems to me that some misunderstanding is possible of the reference to the right of a jury to return a wrong verdict. They have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict. (at p451)

13. One other source of misunderstanding is the occasional judicial use of the expression "merciful verdict of manslaughter". Such an expression might, in my opinion, be intended to mean and ought to be read as meaning no more than that the jury may have been unduly swayed, maybe by feelings of humanity, to feel doubt as to implications of the evidence adverse to the accused. But, in my opinion, such an expression because of its ambiguity should have no currency in the criminal law. (at p451)

14. Because it is for the jury to be satisfied of the elements of the murder charged and not for the presiding judge, the possibility of a verdict of manslaughter must almost always be present though there may be cases, of which Mraz v. The Queen (1955) 93 CLR 493 is suggested as an example, where there cannot be any reason for such a verdict. I have already indicated how I think such a case should be treated. In such a case it would not be a misdirection, in my opinion, to refuse to inform the jury that they may return a verdict of manslaughter. But in almost every case, if asked, the judge would be bound to tell the jury of the alternative verdict open to them. However, in that event, he should inform them of the basis on which they may properly return such a verdict. When it becomes necessary thus to direct a jury, the jury should be told that if they are not satisfied to the requisite degree that the crime of murder was committed by the accused but are satisfied that the accused killed the deceased unlawfully, that is to say either without the requisite intent or under provocation (where there is evidence of it), they may return a verdict of manslaughter : but that, if they are satisfied to the requisite degree of all the elements of the crime of murder which are relevant to the facts of the case as they find them, their duty is to convict of murder and that there is in that situation no room for a verdict of manslaughter. The text of s. 23 may be conveyed to them as definitive of what they may properly do. (at p452)

15. In my opinion, the passage which I have quoted from the summing up of the trial judge was not erroneous in point of law. Special leave to appeal should be granted and the appeal dismissed. (at p452)

KITTO J. Section 23 (2) of the Crimes Act, 1900 (N.S.W.), subject to a proviso not here relevant, provides that on the trial of a person for murder the jury may acquit the accused of murder, and find him guilty of manslaughter, "where . . . it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter . . .". (at p452)

2. In Reg. v. Stone (1965) 84 WN (Pt 1) (NSW), at p 368 , Collins J., with the assent of Herron C.J., said that by a process of judicial interpretation over many years the qualifying words I have quoted above, which are in fact the opening words of the subsection, have been virtually read out of the Act, and that in Beavan v. The Queen (1954) 92 CLR 660 the joint judgment had stated that the position was the same at common law. Collins J. claimed support for this view from a passage in the judgment of Williams, Webb and Taylor JJ. in Mraz v. The Queen (1955) 93 CLR, 493, at p 504 where their Honours, after mentioning that it was competent for the jury to return a verdict of manslaughter even where the death had been caused by the accused in the course of committing a felony, said that "this appears to be the result of judicial decision in spite of the opening words of s. 23 (2)". They referred by way of contrast to the observations of Jordan C.J. in R. v. Surridge (1942) 42 SR (NSW), at p 281 ; and in Reg. v. Stone (1965) 84 WN (Pt 1) (NSW), at p 368 , Collins J. said that the view of Jordan C.J. has not prevailed. (at p452)

3. It is indeed competent for the jury to refuse to return a verdict of murder even in such a case as that of Mraz (1955) 93 CLR, 493, at p 504 , but I do not think that Jordan C.J. in Surridge (1942) 42 SR (NSW) 278 said anything to the contrary. He did not deny that a jury can, if they choose, be false to their oath : what he denied was that s. 23 (2) as interpreted in Brown v. The King (1913) 17 CLR 570 , authorizes them to be false to their oath. He was drawing, I think, the very distinction that Wills J. drew in R. v. Shipley (1784) 4 Doug 73, at p 178 (99 ER 774, at p 828) (cited by Mr. Snelling in his interesting article on "The Alternative Verdict of Manslaughter", (1958) 32 Australian Law Journal 137, at p. 141) when he said: "I admit the jury have the power of finding a verdict against the law, and so they have of finding a verdict against evidence, but I deny that they have the right to do so." (at p453)

4. But the power of the jury to find the accused not guilty of murder and guilty of manslaughter exists because the verdict is for them, and unless they alter it upon reconsideration it must be accepted. The fact that the power is subject to no legal condition is not inconsistent with s. 23 (2), and in my opinion it is not correct to say that the courts in recognizing the power as unqualified have read the opening words out of the Act. All that they have done is to read s. 23 (2) as not absolving the jury from the moral obligation to give a true verdict according to the evidence, while yet recognizing that the provision confirms the authority which the common law conceded to a jury, after it has in fact given a verdict of not guilty of murder, to turn to the question of manslaughter and give a verdict upon that notwithstanding that the only charge in the indictment is murder. In a true case of murder or nothing this operates to give validity to a verdict of manslaughter notwithstanding the inconsistency between that verdict and the antecedent verdict of not guilty of murder; but it is not a source of the power to acquit of murder: its reference to acquittal of murder is only for the purpose of making such an acquittal a condition precedent to the conviction of manslaughter. It was because of this that in Beavan v. The Queen (1954) 92 CLR, at p 663 the position under s. 23 (2) was assimilated to the position at common law. The common law, authorizing as it did a verdict of guilty of manslaughter on an indictment for murder, always made it a condition of the validity of that verdict that the jury should first have returned a verdict of not guilty of murder. Thus in Hawkins' Pleas of the Crown, 8th ed. (1824), at pp. 619,620, it is said to have been adjudged first that where the jury find a man not guilty of an indictment or appeal of murder they are not bound to make any inquiry whether he be guilty of manslaughter, but that if they will they may, according to the nature of the evidence, find him guilty of manslaughter; and secondly (citing the interesting case of one Mansell (1584) 1 And 103, at p 104 (123 ER 376, at p 377) , in the reign of Elizabeth I) that if the jury on an indictment or appeal of murder find the defendant guilty of manslaughter without saying anything expressly as to the murder, it is insufficient and void, as being only a verdict as to part. (at p454)

5. In my opinion the direction given by the trial judge in the present case on the question of the jury's "right" to return a verdict of not guilty of murder and guilty of manslaughter was correct. His Honour twice used the expression "you must not", but he was speaking, as the context made abundantly clear, in terms of conscience, explicitly contrasting the jury's "legal right" with their sworn duty to give a true verdict. It may not be in every case wise or desirable to use the strong words he employed in this case, but he had to consider the atmosphere of the trial and in particular the possible effect of the address of counsel for the defence upon which he was commenting, and the choice of language was very much a matter for his discretion. (at p454)

6. I would refuse special leave to appeal. (at p454)

MENZIES J. This application for special leave to appeal is from an order of the Court of Criminal Appeal of the State of New South Wales, dismissing an appeal against a conviction for murder. It requires consideration of the direction to be given to a jury, in the course of a trial upon an indictment for murder, if, although it appears to be a case of murder or nothing, the question arises whether it is within the power of the jury to acquit of murder and bring in a verdict of manslaughter. (at p454)

2. In Reg. v. Stone (1965) 84 WN (Pt 1) (NSW) 361 , two members of the Court of Criminal Appeal (Herron C.J. agreeing with Collins J.) came to the conclusion that upon a trial for murder the learned presiding judge erred in refusing to allow counsel for the accused to urge upon the jury that they should return a merciful verdict of manslaughter, and that his Honour erred consequentially in omitting "in the summing up to refer to the jury's power to return such a verdict". In the course of his judgment Collins J., after referring to a statement by Dixon J. in Packett v. The King (1937) 58 CLR, at p 213 , said (1965) 84 WN (Pt 1) (NSW), at p 368 :

"In R. v. Surridge ; R. v. Harris (1942) 42 SR (NSW), at p 281 , the contrary view is expressed in most trenchant terms by Jordan C.J., where, discussing Brown v. The King (1913) 17 CLR 570 , he said : ' The case does not decide, as it appears to have been sometimes supposed, that notwithstanding that the jury are satisfied beyond a reasonable doubt that the accused is guilty of murder, they are nevertheless entitled to be false to their judicial oaths, to acquit him of murder, and find him guilty of manslaughter instead.' However, the view of Jordan C.J., has not prevailed. . . . Section 23 (2) on its face gives support to the view expressed by Jordan C.J., in the Surridge Case (1942) 42 SR (NSW) 278 , for it reads : '23. (2) Where, on any such trial, (i.e. on a trial of a person for murder) it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly :'. "The opening words of this subsection appear plainly enough to require that the jury be satisfied that there is no case of murder but to be satisfied that there is a case of manslaughter (presumably on the evidence) : yet by a process of judicial interpretation over many years, these words have been virtually read out of the Act and in Beavan's Case (1954) 92 CLR 660 , it was stated in the joint judgment of Dixon C.J., McTiernan, Webb, Fullagar and Taylor JJ., that the position was the same at common law." (at p455)

3. I have come to the conclusion that this statement reveals a misunderstanding of both Packett v. The King (1937) 58 CLR 190 and Beavan v. The Queen (3), and wrongly attributes to judicial decision the effect of writing out significant words in s. 23 of the Crimes Act. (at p455)

4. I take Beavan v. The Queen (3) first and set out in full the relevant passage from the judgment of this Court (1954) 92 CLR, at pp 662-663 :

"Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder, and counsel for the prisoner has not suggested to the jury the possibility of their returning a verdict of manslaughter, the judge is under no duty to inform the jury that it is within their power to find a verdict of manslaughter, unless the jury ask a question upon the subject. In that case it will usually be incumbent upon the judge to inform them that upon an indictment for murder it is within the province of a jury to find a verdict of manslaughter ; but it is proper for him to add an expression of his opinion that in no view of the evidence which the jury might reasonably take are findings of fact open that fall short of murder but amount to manslaughter. If, however, the jury do exercise their power to find a verdict of manslaughter, and it is certain that they were satisfied beyond reasonable doubt that the prisoner unlawfully killed the deceased, the verdict of manslaughter will not be invalidated merely because the facts proved by the evidence upon which the jury must have acted amount in point of law to murder. The verdict must be taken to mean that the jury were satisfied of all the elements of the crime of murder except the existence of the requisite intention or other form of malice aforethought but that they were not prepared to find that this element existed. It is within a jury's province to refuse to make this or any other finding involving guilt and it is by that refusal that the verdict of manslaughter is warranted. We think that the law, as we have stated it, is established by Mancini v. Director of Public Prosecutions (1942) AC 1, at p 8 , per Viscount Simon L.C. ; R. v. Roberts (1942) 1 All ER 187; 28 Cr App R 102 ; R. v. Gauthier (1943) 29 Cr App R 113 ; R. v. Surridge (1942) 42 SR (NSW), at p 281 ; 59 WN, at p 223 ; R. v. Piekutowski (1952) SASR 44 ; Brown v. The King (1913) 17 CLR 570, esp at p 578 per Barton A.C.J. ; Reg. v. Grimes (1894) 15 LR (NSW) 209, at p 221 ; 10 WN 211, at p 212 per Windeyer J. The foregoing is the position alike at common law and under s. 23 (2) of the Crimes Act 1900-1950 (N.S.W.)." (at p456)

5. The significance of this passage is, I think, best understood by concentrating attention upon what a verdict of manslaughter in the circumstances envisaged must be taken to mean, viz. "that the jury were satisfied on all the elements of the crime of murder except the existence of the requisite intention or other form of malice aforethought but that they were not prepared to find that this element existed", in other words, that the jury were not satisfied beyond reasonable doubt of the mental element necessary to convict of murder. The Court did emphasize that, notwithstanding that the case was one in which "on no view of the evidence which might reasonably be adopted would the crime amount to manslaughter and not murder", it is within the jury's province to refuse to make any finding involving guilt. It is, however, an error to understand what was said as meaning that Jordan C.J. was in error in R. v. Surridge (1942) 42 SR (NSW) 278 and that, if so requested, the judge must inform the jury that, notwithstanding that they are satisfied of all the elements of the crime of murder, they may bring in a merciful verdict of manslaughter. When the Court said "The foregoing is the position alike at common law and under s. 23 (2) of the Crimes Act, 1900-1950 (N.S.W.)", it was not saying that at common law a judge, upon the request of counsel for the accused or after a question from the jury, must inform the jury that, notwithstanding their satisfaction that every element to constitute murder had been proved, they might nevertheless return a merciful verdict of manslaughter. There is nothing in the common law to warrant such a direction. What their Honours had in mind is shown clearly enough by the authorities to which they referred. The first is an observation of Viscount Simon L.C. in Mancini v. Director of Public Prosecutions (1942) AC, at p 8 . There his Lordship said :
"The possibility of a verdict of manslaughter instead of
murder only arises when the evidence given beofre the jury is such as might satisfy them as the judges of fact that the elements were present which would reduce the crime to manslaughter, or, at any rate, might induce a reasonable doubt whether this was, or was not, the case."

It is not necessary, at this point, to refer to the other authorities cited but it may be observed that one of the authorities referred to in support of the court's proposition is the judgment of Jordan C.J. in R. v. Surridge (1942) 42 SR (NSW), at p 281 , where the very passage appears expressing the view which in Reg. v. Stone (1965) 84 WN (Pt 1) (NSW) 361 it was said "has not prevailed". (at p457)

6. I pass now to Packett v. The King (1937) 58 CLR 190 . The applicant had been convicted of murder under The Criminal Code of Tasmania. The one problem considered was what amounts to provocation to reduce the crime to manslaughter. It was in connexion with this that statements were made by Latham C.J., at p. 199, Starke J., at p. 206, Dixon J., at p. 213, and McTIERNAN J., at p. 222. It is to be observed that Starke J. said (1937) 58 CLR, at p 206 :

"Lastly, it was contended for the prisoner that the judge should have directed the jury that they were entitled upon the indictment for murder to convict the prisoner for manslaughter (see Code, s. 333). This section, of course, only states the verdicts which may be given upon an indictment for murder provided that the facts proved constitute such an offence. In my opinion it is no duty of the judge to direct a jury that they may find a verdict contrary to the evidence or according to their own caprice. It is, of course, his duty to submit for their consideration facts upon which a finding of self-defence or provocation might be based and the killing justified or reduced to the offence of manslaughter. It would be wholly destructive of the administration of criminal justice if it were thought that a judge was bound to direct a jury that it could act without regard to the law and the facts proved before them."

Dixon J. said very much the same as was said in Beavan v. The Queen (1954) 92 CLR 660 . (at p457)

7. It will be recalled that in R. v. Surridge (1942) 42 SR (NSW) 278 Jordan C.J. referred to the misunderstanding of what the High Court said in Brown v. The King (1913) 17 CLR 570 , and it is necessary to refer to that decision. What happened at the trial appears from the judgment of Barton A.C.J., (1913) 17 CLR, at pp 577-578 when, in response to the jury's question whether they were at liberty to bring in a verdict other than guilty or not guilty, his Honour replied "I do not think so". Barton A.C.J. said :

"The power of convicting of manslaughter while acquitting of murder, is therefore conferred on the jury by Statute whenever they think that the act charged does not amount to the greater crime, but does amount to the lesser one. When, therefore, his Honour answered the jury by telling them that he did not think they were at liberty to find any other verdict than guilty or not guilty of murder, he in effect told them that they did not possess this power. Indeed, he went on to say that unless some excuse were shown for his act, the accused, if he shot the sergeant, had in law murdered him. This appears to be too broad a statement, since it leaves out the alternative of manslaughter, which cannot be called an excusable homicide. I am of opinion that this ground is fatal to the conviction." The emphasis has been added.

Isaacs and Powers JJ. (1913) 17 CLR, at p 589 said :

"The second ground dealt with by the Supreme Court raises questions of a highly important and, in some respects, novel character. The contention of learned counsel for the accused is twofold. He maintained that there was ample evidence to justify the jury in finding a verdict of manslaughter if they had been so minded ; and even if there were not, he argued that the law entrusts the jury with the power in favour of a prisoner, and to deny them that power is to prejudice the accused."

Later their Honours said (1913) 17 CLR, at p 591 :

"What, then, is the lawful power of a jury on a charge of murder? Apart altogether from statutory provisions, it is well established law, that at common law the jury, though they may not convict of an offence of an entirely different character from that charged - as of a misdemeanour where felony is charged - may convict of a less aggravated felony

or misdemeanour than the one charged, provided the words of the indictment cover it."

Their Honours said that the law in New South Wales had been made clear by R. v. Grimes (1894) 15 LR (NSW) 209 , "in which it was held that on a charge of murder the jury are entitled to return a verdict of manslaughter, though on the facts the case is one of murder or nothing". Their Honours relied upon the re-enactment of the section since that case. It is, I think, apparent that their Honours were speaking about the uncontrolled power of juries to insist upon returning a verdict of manslaughter even if, to the court, the case appeared to be one of murder or nothing. There is no suggestion that a judge must, if asked to do so, tell the jury that they are entitled to exercise this uncontrolled power in disregard of the facts as found and merely upon merciful grounds. (at p459)

8. In R. v. Grimes (1894) 15 LR (NSW) 209 nothing more was decided than that, upon a charge of murder, the jury have the power to return a verdict of manslaughter although it seems to the court, upon the facts of the case, that it is one of murder or nothing. An attempt to impeach a direction of the learned Chief Justice to the jury that it was open to them to find the prisoners guilty of manslaughter failed, as did the attempt to set aside the convictions of manslaughter. The learned Chief Justice did not direct the jury that, if satisfied of all the elements of murder, they might nevertheless return a verdict of manslaughter, nor did his Honour speak of a merciful verdict of manslaughter. He quite properly told the jury, in response to their question, that it was open to them to find a verdict of manslaughter. (at p459)

9. In New South Wales the decision in Reg. v. Stone (1965) 84 WN (Pt 1) (NSW) 361 has been regarded as authoritative and has been followed, although perhaps without enthusiasm. See, for instance, Reg. v. Pratt (1966) 2 NSWR 516, at pp 527, 528 , per Walsh J.A. Moreover I doubt whether the direction in question here and the decision of the Court of Criminal Appeal is consistent with it. The first question for this Court, is whether it was correct. (at p459)

10. Before stating my conclusion upon this, I would refer to what, in Victoria, has been spoken of as the "constitutional right" of a jury to find manslaughter upon a murder indictment. See Reg. v. Longley (1962) VR 137, at p 140 . This description was used, however, in relation to a direction as follows:

"The accused man himself does not raise the point that in killing her he did it perhaps to frighten her or did it accidentally or something of that sort. He says ; 'I didn't kill her'. On the other hand . . . it is possible that you could reach the conclusion that the accused man killed his wife, but you were not satisfied beyond reasonable doubt that he intended to kill her or do her grievous bodily harm. If you are in that state of mind, manslaughter would be the result. . . . . " (at p459)

11. Apart, possibly, from the use of the words "would be", this direction was in accordance with what was said in Beavan v. The Queen (1). (at p460)

12. It appears, therefore that all the authorities show that it is a misdirection for a judge to instruct a jury upon an indictment for murder that they cannot acquit of murder and convict of manslaughter. It would be a misdirection of the same character to tell the jury that they cannot acquit simpliciter. There is, however, no authority, other than Reg. v. Stone (2) and the cases which follow it, to the effect that it is a misdirection for a judge to tell a jury that, if they do find all the elements of murder established, although they have the power to return a verdict of manslaughter, they would fail in their duty or be false to their oaths were they to return such a verdict despite their findings and merely upon merciful or compassionate grounds. As between the statements of Jordan C.J. in R. v. Surridge (3) and Collins J. in Reg. v. Stone (2), the former is right ; the latter is wrong. (at p460)

13. The direction here challenged was as follows :

"There is one final matter. You have been told by counsel for the accused that you have the right to bring in a verdict here of not guilty of murder but guilty of manslaughter. It is true that you have the legal right but, gentlemen, the only justification for you bringing in a verdict of manslaughter would be if you were not satisfied by the Crown to the extent that I have indicated that the accused intended to kill this woman or intended to inflict grievous bodily harm, and if you rejected the Crown case of it coming within the other two branches of the definition (reckless indifference to human life or whilst or during or immediately after the commission of an act obviously dangerous to human life) what you must not do is this, if you are satisfied it is murder then it is your duty to bring in a verdict of murder. You must not, as it were, say to yourselves, 'we are satisfied it is murder but we have the right to bring in manslaughter and although we think it is murder we are going to be merciful to this man and find him guilty of the lesser offence'. If you do that, you are being false to the oath you took when you became jurors in this case ; that oath was to well and truly try this case and a true verdict give according to the evidence, and such a verdict as that given out of motives of mercy, even if you believe him guilty of murder, would not be the true verdict."

I agree with the Court of Criminal Appeal that this direction was correct in law. (at p460)

14. Accordingly, I consider that the application for special leave should be granted and the appeal dismissed. (at p461)

WINDEYER J. The proposition that the direction that the learned trial judge gave to the jury was wrong can only be supported by ignoring the express words of s. 23 (2) of the Crimes Act, 1900 (N.S.W.), and by a misconception of relevant common law. The error is exposed and true doctrine expounded in the judgments that the Chief Justice and my brethren are delivering, which I have had the advantage of reading. I shall add some remarks only to emphasize my concurrence in their Honours' conclusions, and because we are asserting that an opinion which has heretofore had some degree of judicial approval in New South Wales is not warranted by law. (at p461)

2. Section 23 of the Crimes Act, 1900 reproduces the words of s. 370 of the Criminal Law Amendment Act of 1883. The section provides - in sub-s. (2) - that, where on the trial of a person for murder, "it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly". This is perfectly plain. It is said, and rightly said, that it accords with the common law. Because of its context it does, indirectly, in particular applications involve a departure from the common law as it stood in New South Wales before 1883. That is because a statutory definition of murder was then introduced which departed in terms if not in substance from the common law. Until 1883 murder was defined only in common law language as an unlawful killing with malice aforethought. The vexations of the phrase "malice aforethought" disappeared from the definition of murder in s. 9 of the Act of 1883, which is now s. 18 of the Act of 1900. With its disappearance went some things that had given rise to the common-law rule which is now embodied in s. 23 (2). The occasions when before the statute a jury could find a verdict of manslaughter on an indictment of murder were principally when they found the homicide proved but malice aforethought not proved. That however does not mean that in the new setting of a statutory definition of murder the principles on which an alternative verdict of manslaughter might be given had been altered. A jury's verdict of manslaughter returned when murder was charged must be taken as meaning that the jury were satisfied beyond reasonable doubt that an unlawful act or omission of the accused caused the death but that they were not so satisfied that the act or omission had or was accompanied by some quality or concomitant which in the circumstances was essential to make it murder. (at p462)

3. As the Privy Council recognized in Parker v. The Queen (1964) 111 CLR665, at p 677 , the legislation of 1883 has to be considered against its common-law background. But, for the present purposes, it is misleading to speak glibly of the common law in order to compare and contrast it with a statute. In any consideration of common-law rules it is necessary to take one's stand at some point of time. It is necessary too to be clear whether what is being spoken of as the common law at that point of time comprehends all statutory modifications of it then in force or only its pristine form. This is especially true when the law of homicide is under discussion. Its growth, elaboration and development over centuries has been the result of the work of Parliament as well as of courts and of the great and authoritative writers. The distinction between murder and manslaughter is in origin a by-product of legislation, not of common law. It did not clearly emerge until about the middle of the sixteenth century. Thereafter - by 23 Hen. VIII c. 1, s. 3 (1531) and 3 Edw. VI c. 12, s. 10 (1547) - persons found guilty of "any wilful murder of malice prepensed" were to be denied benefit of clergy. The phrase "malice prepensed", which became later "malice aforethought", was not new. It had appeared on occasions in earlier statutes. But it became established from Tudor times, and for centuries thereafter it, with its judicial elaborations, was to dominate the law of homicide. Killing with malice aforethought was murder. Other homicides were manslaughter. Provocation, by removing the element of malice, could reduce an intentional act causing death from murder to manslaughter. Killing by accident, or in self-defence, was not murder, again because of the absence of malice aforethought. Nevertheless it was until 1828 - 9 Geo. IV c. 31, s. 10 - strictly speaking manslaughter. Originally it was not met by a verdict of not guilty but by a special verdict which would ground a pardon. A pardon became a formality, and even by the time Blackstone wrote proof of misadventure or self-defence were often taken as grounds for an acquittal on an indictment of murder. However, until 1828 they, like the cases of a lack of malice aforethought, gave a special meaning and particular application to the right of a jury to convict of manslaughter upon an indictment for murder. But this presupposed always that the jury had found that on the facts an indictment for murder could not be sustained. It did not mean that merely from a desire to be merciful they could be false to their duty. Indeed at one stage a verdict of manslaughter rather than of murder was of little advantage to the prisoner, for he might be hanged just the same : see e.g. Plowden's Reports 101 (1553) 1 Plowden 97, at p 101 and Coke's report of Mackalley's Case (1611) 9 Co Rep 65b, at p 67b (77 ER 828, at p 832) . Long before 1883 the law of England, and of New South Wales, in relation to juries' verdicts in cases of homicide had become settled. The enactment of the predecessor of s. 23 (2) introduced no novelty into the law : see Hale, Pleas of the Crown, vol. 1, p. 448 and vol. 2, p. 301 ; East, Pleas of the Crown (1803), vol. 1, p. 371 ; Hawkins, Pleas of the Crown 8th ed., vol. 2, p. 620. In Chitty, Criminal Law (1826), vol. 1, pp. 637-642, the power of a jury to find a verdict of manslaughter when acquitting of murder is given as one among a number of illustrations of the power to acquit of a part of an offence charged in an indictment, but, as it was put, to find the prisoner guilty of the residue. (at p463)

4. It is not necessary to consider how far the same rule applied to an appeal of murder as to an indictment. Appeal in this sense means of course the old procedure by accusation by a private person aggrieved. The matter caused much difficulty and some nice disputes in several cases in the reign of Queen Elizabeth I : Cro Eliz at pp 276, 296, 464, 632 and 682. But the topic is utterly irrelevant to the present case because appeals of felony were abolished in England in 1819 - 5 Geo. III c. 46 - that is long before 25th July 1828 when 9 Geo. IV c. 83 was enacted. Thus they never were part of the common-law background of the criminal law in 1883. Only indictments had a place there. (at p463)

5. In my view it would be contrary to law to tell a jury that they may find an accused man not guilty of murder but guilty of manslaughter although they found that facts constituting the crime of murder were proved beyond reasonable doubt. A jury in a criminal case may sometimes, from compassion or prejudice or other ulterior motive, fail to perform their sworn duty to determine the case before them according to the evidence. If they do so in favour of the prisoner, and not of the Crown, the law is powerless to correct their dereliction. They must be assumed to have been faithful to their duty. Their verdict must be accepted. But that they can go wrong is no reason for misleading them. And if a trial judge thinks they are likely by some events at the trial to be led from their duty he may remind them of it, making sure of course that they understand that it is their verdict not his opinion that the law demands. (at p463)

6. I agree in the order the Chief Justice proposes. (at p463)

OWEN J. The applicant for special leave to appeal was convicted of the murder of one Margaret Mitchell Smith. When the trial began counsel for the defence stated, in the presence of the jury, that it was not disputed that the applicant had killed the deceased woman and that he was relying upon a defence of provocation. At the close of the evidence the learned trial judge ruled that there was insufficient evidence to support that defence and no complaint is now made about that ruling. In the course of his charge to the jury the learned trial judge said :
"There is one final matter. You have been told by counsel
for the accused that you have the right to bring in a verdict here of not guilty of murder but guilty of manslaughter. It is true that you have that legal right but, gentlemen, the only justification for you bringing in a verdict of manslaughter would be if you were not satisfied by the Crown to the extent that I have indicated that the accused intended to kill this women or intended to inflict grievous bodily harm, and if you rejected the Crown case of it coming within the other two branches of the definition (reckless indifference to human life or whilst or during or immediately after the commission of an act obviously dangerous to human life) what you must not do is this, if you are satisfied it is murder then it is your duty to bring in a verdict of murder. You must not, as it were, say to yourselves, 'We are satisfied it is murder but we have the right to bring in manslaughter and although we think it is murder we are going to be merciful to this man and find him guilty of the lesser offence'. If you do that, you are being false to the oath you took when you became jurors in this case ; that oath was to well and truly try this case and a true verdict give according to the evidence, and such a verdict as that given out of motives of mercy, even if you believe him guilty of murder, would not be the true verdict." On appeal to the Court of Criminal Appeal, their Honours held that the learned trial judge had not fallen into error in giving that direction and with that I agree. It has been submitted, however, that the decisions in Reg. v. Stone (1965) 84 WN (Pt 1) (NSW) 361 ; Reg. v. Pratt (1966) 2 NSWR 516 and Reg. v. Coghill (1968) 70 SR (NSW) 153 show that the direction was wrong and that the learned trial judge should not have told the jury that they would be acting contrary to their oaths if, notwithstanding that they were satisfied that all the elements of murder were proved, they returned a "merciful" verdict of not guilty of murder but guilty of manslaughter. If those cases do lay down any such rule, I think, with respect, that they were wrongly decided. In Packett v. The King (1937) 58 CLR 190 Starke J. said :

"In my opinion it is no duty of the judge to direct a jury that they may find a verdict contrary to the evidence or according to their own caprice. . . . It would be wholly destructive of the administration of criminal justice if it were thought that a judge was bound to direct a jury that it could act without regard to the law and the facts proved before them." (1937) 58 CLR, at p 206

No doubt it is within the province of a jury in every case in which murder is charged to return a verdict of not guilty of murder but guilty of manslaughter and it is equally clear that they may insist on doing so even though it may appear to the trial judge or to a Court of Appeal that such a verdict is not a true verdict according to the evidence. But this does not mean that a direction such as was given in the present case was wrong. What the learned trial judge did was to tell the jury that while it was competent for them to acquit of murder and convict of manslaughter, they would not be acting in accordance with their oaths if they took that course upon compassionate grounds. In Beavan v. The Queen (1954) 92 CLR 660 Dixon C.J., McTiernan, Webb, Fullagar and Taylor J.J. in their joint judgment said (1954) 92 CLR, at pp 662,663 :

"Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder, and counsel for the prisoner has not suggested to the jury the possibility of their returning a verdict of manslaughter, the judge is under no duty to inform the jury that it is within their power to find a verdict of manslaughter, unless the jury ask a question upon the subject. In that case it will usually be incumbent upon the judge to inform them that upon an indictment for murder it is within the province of a jury to find a verdict of manslaughter ; but it is proper for him to add an expression of his opinion that in no view of the evidence which the jury might reasonably take are findings of fact open that fall short of murder but amount to manslaughter. If, however, the jury do exercise their power to find a verdict of manslaughter, and it is certain that they were satisfied beyond reasonable doubt that the prisoner unlawfully killed the deceased, the verdict of manslaughter will not be invalidated merely because the facts proved by the evidence upon which the jury must have acted amount in point of law to murder. The verdict must be taken to mean that the jury were satisfied of all the elements of the crime of murder except the existence of the requisite intention or other form of malice aforethought but that they were not prepared to find that this element existed. It is within a jury's province to refuse to make this or any other finding involving guilt and it is by that refusal that the verdict of manslaughter is warranted. We think that the law, as we have stated it, is established by Mancini v. Director of Public Prosecutions (1942) AC at p 8, per Viscount Simon L.C.; R. v. Roberts (1942) 1 All ER 187 ; 28 Cr App R 102; R. v. Gauthier (1943) 29 Cr App R 113; R. v. Surridge (1942) 42 SR (NSW), at p 281 ; 59 WN, at p 223; R. v. Piekutowski (1952) SASR 44; Brown v. The King (1913) 17 CLR 570, esp at p 578 per Barton A.C.J.; REg. v. Grimes (1894) 15 LR (NSW) 209, at p 221; 10 WN 211, at p 212 per Windeyer J."

With those statements I respectfully agree and the direction in the present case in no way conflicts with them. I would only add that the words of s. 23 (2) of the Crimes Act are plain. That sub-section restates the common law and it should be applied according to its terms. (at p466)

2. I would grant special leave to appeal and dismiss the appeal. (at p466)

Orders

Special leave granted, appeal dismissed.