Criminal Law—Evidence—Procedure—Reopening Crown case after closing of defence—Alibi raised for first time at trial after closing of Crown case but raised in previous proceedings—Whether Crown permitted to call rebutting evidence.
Decisions
November 25. The following written judgments were delivered: - GIBBS C.J., MURPHY AND AICKIN JJ. The question for decision on this application for special leave to appeal from the Court of Criminal Appeal of South Australia is whether a trial judge may permit the Crown to adduce evidence after the close of the case for the defence to rebut an alibi sworn to by the accused in the course of his evidence, and not previously the subject of evidence at the trial, but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial, because it had been put forward by him in earlier legal proceedings. (at p567)
2. The applicant was convicted on four counts of armed robbery. One of the robberies, the subject of the fourth count, took place at Plympton, a suburb of Adelaide, on 16 June 1978. There is no doubt that at some time on the evening of that day the applicant, who lived in Sydney and was on bail, reported to the police station at Chatswood, a suburb of Sydney. The Crown case was that after the robbery the applicant travelled from Adelaide to Sydney by an aircraft which arrived in Sydney at 8.03 p.m., and that he reported to the Chatswood police station at approximately 8.30 p.m. The accused gave evidence that he was in Sydney for the whole of 16 June. He said that at about 10.00 a.m. on that day he took his child to a Mrs Eyles, at Croydon, to be minded by her, that he picked up the child from Mrs Eyles again in the afternoon and later had tea with his wife and reported to the Chatswood police station at 8.00 p.m. His evidence was corroborated by that of his wife. The applicant had previously given evidence to the same effect when he appeared before a special magistrate in Sydney as respondent to extradition proceedings and had given the same version of events in an affidavit filed in support of an application for bail made to a judge of the Supreme Court. Although at the committal proceedings the applicant, who did not give evidence, did not refer to his alibi, the Crown should have foreseen that it was probable that he would raise it again at the trial. The Crown called no evidence in chief to rebut the alibi but after the case for the applicant had been closed called Mrs Eyles and her son, Kym Eyles, to show that it was not the applicant, but his wife, who delivered and picked up the child on 16 June. The sole question raised on the application before…
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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Details
AGLC
Killick v The Queen [1981] HCA 63
Case
[1981] HCA 63
Decision Date
CaseChat Overview and Summary
In *Killick v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Killick, 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 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 had adequately directed the jury on the elements of provocation, particularly in relation to the subjective and objective aspects of the defence. Specifically, the court had to determine if the jury had been properly instructed on how to assess whether the provocation was such as to cause an ordinary person to lose self-control and whether the appellant had, in fact, lost self-control.
The High Court, in allowing the appeal and quashing the conviction, held that the trial judge's summing up had been insufficient. Gibbs C.J. and Wilson J. (with whom Brennan J. agreed) found that the directions failed to clearly articulate the two-stage test for provocation. They emphasised that the jury must first consider whether the provocation was capable of causing an ordinary person to lose self-control, and then, if so, whether the particular accused did in fact lose self-control. Murphy and Aickin JJ. dissented, finding the summing up to be adequate in the circumstances.
The High Court ordered that the conviction for murder be quashed and remitted the matter to the Supreme Court of Queensland for a new trial on the charge of murder.