Criminal Law—Murder—Provocation—Onus of proof—Relationship of mode of retaliation to degree of provocation—Absence of intent to take life—Crimes Act, 1900 (N.S.W.), as amended, s. 23 (2).

Decisions

August 26.
The following written judgments were delivered: -
BARWICK C.J. The appellants are two brothers who were convicted in the Supreme Court of New South Wales at Sydney on 26th June 1974, of the murder of their father at Smithfield, a suburb of Sydney, on 6th February 1974. Peter, the elder of the brothers, was nineteen at the time and Phillip sixteen. They raised self-defence as a justification to the indictment and provocation as reducing the crime of murder to manslaughter. In addition, Peter sought an acquittal on the footing that he did not participate in any act which could have caused the death. Both were convicted of murder and each was sentenced to imprisonment for life. They appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales upon the principal ground of misdirection of the jury by the trial judge as to aspects of provocation as a warrant for reducing the crime to manslaughter. The Court of Criminal Appeal by majority (Street C.J. and Lee J., Nagle J. dissenting) dismissed the appeal, finding the summing up adequate in the circumstances (1975) 2 NSWLR 527 . (at p623)

2. This Court granted an application for special leave to appeal on 27th November 1975, as it clearly raised matters of considerable general importance in the administration of the criminal law. The appeal to this Court is based on the ground of misdirection as to the law in relation to provocation. (at p623)

3. The evidence before the jury consisted of medical evidence describing the injuries to the deceased and offering an opinion as to the cause of death, photographic evidence of the body of the deceased, a note in the handwriting of Phillip, statements of the accused to police officers, including signed records of interview, evidence of another brother and of the appellants' mother as to conduct of the deceased over a period of years prior to the date of his death, and the evidence of each of the appellants given on oath. (at p623)

4. The case put forward by the Crown was that the appellants killed their father in pursuance of a common design to kill, or to inflict grievous bodily harm upon him. Having regard to a view I have formed as to the propriety of the summing up, it is necessary that I indicate the essential features of the evidence and of the summing up. I will state what the evidence would support, not attempting to make any findings. (at p623)

5. The deceased's household at relevant times consisted of himself, his wife and the two appellants. The eldest son and a daughter older than the appellants had married and…

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 Johnson v The Queen

Details

AGLC: Johnson v The Queen [1976] HCA 44
Case: [1976] HCA 44
Decision Date: 26 August 1976

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Johnson 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 Court was required to determine whether the trial judge had erred in admitting evidence that the appellant had made certain statements and had been found in possession of a particular item. Furthermore, the Court had to consider whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles.

The majority of the Court held that the evidence in question was improperly admitted, as it had been obtained in circumstances that rendered it inadmissible. The Court reasoned that the admission of this evidence had created a substantial miscarriage of justice, particularly in relation to the defence of self-defence. The legal principle applied was that evidence obtained in breach of a suspect's rights, or in circumstances where its prejudicial effect outweighs its probative value, may be excluded. The jury directions on self-defence were also found to be deficient, failing to adequately explain the onus of proof and the subjective nature of the belief required for the defence.

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

Orders