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,…
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
Gammage v The Queen [1969] HCA 68
Case
[1969] HCA 68
Decision Date
CaseChat Overview and Summary
The case of *Gammage v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Gammage, had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal to the High Court challenged the validity of this conviction.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to consider whether the evidence presented at trial was capable of supporting a finding that the appellant had acted under provocation, and if so, whether the jury had been properly instructed on the elements of this defence, including the requirement that the provocation must be such as to make an ordinary person lose self-control.
The High Court, in allowing the appeal, found that there was evidence before the jury that could have supported a defence of provocation. The trial judge's summing up, however, had not adequately explained to the jury the objective test of provocation, namely, whether an ordinary person might have reacted in the same way as the accused. The failure to properly direct the jury on this crucial aspect of the defence meant that the conviction could not stand.
Consequently, the High Court quashed the conviction for murder and ordered a new trial.