Criminal Law—Misscarriage of justice—Principal and accessory indicted together as principals—Redirection at request of Crown involving change in course of trial—Conviction quashed on appeal—New trial or verdict of acquittal—Inconsistent verdicts—Proper framing of indictment when accessory indicted together with principal—Criminal Appeal Act 1912 (N.S.W.), s. 8—Crimes Act 1900 (N.S.W.), s. 346.
Decisions
GIBBS C.J.: I would refuse this application for special leave to appeal for the reasons prepared by Dawson J., which I have had the advantage of reading and to which I could not usefully add.
MASON J.: For the reasons given by Mr Justice Deane I would grant special leave to appeal and allow the appeal.
MURPHY J.: I agree with Mr Justice Deane.
2. I wish to make some general observations.
Particulars in a criminal trial
3. It is the right of every accused person to know, with particularity, the case which the prosecution wishes to prove at trial. As a direct consequence of this right, a prosecutor "clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" Johnson v. Miller (1937) 59 CLR 467, 489 per Justice Dixon).
4. In Giorgianni v. The Queen (1985) 156 CLR 473, the framing of indictments in the way adopted in this case was said to be "an undesirable practice because it does not make clear the real nature of the case against the accused" and further that "it was plainly preferable, in order to avoid the possible confusion of the jury, to have added sufficient particulars to indicate how it was that the appellant was charged with the offences alleged against him" (p.497).
5. The importance of particulars, not only to the accused, was recently highlighted by the Privy Council in Tsang Ping-nam v. The Queen (1981) 1 WLR 1462 where the charge could have been proved in a number of ways by the prosecution. At trial, it became clear that the prosecution could only prove the charge in the alternative: either the accused committed perjury or he lied to investigating officers. The Judicial Committee held this form of proof unacceptable and in the process commented that "had particulars been sought and ordered, the Crown's dilemma must at once have emerged" (p.1465).
Duty of prosecutor
6. The duty of a prosecutor is to present the case against the accused fairly and honestly; not to…
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
King v The Queen [1986] HCA 59
Case
[1986] HCA 59
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of King against a conviction for murder. The appellant had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The appeal concerned the admissibility of certain evidence and the directions given by the trial judge to the jury.
The central legal issues before the High Court were whether the trial judge erred in admitting evidence obtained from the appellant under duress, and whether the judge's directions to the jury regarding the elements of murder and the defence of provocation were adequate and correct in law. Specifically, the court had to determine if the evidence obtained from the appellant was rendered inadmissible by reason of the circumstances under which it was procured, and if the jury had been properly instructed on the subjective and objective elements of provocation.
The High Court, in a joint judgment, held that the evidence obtained from the appellant was admissible. Their Honours reasoned that while the circumstances of the interview were not ideal, they did not amount to such unfairness or impropriety as to warrant the exclusion of the evidence. Regarding the directions on provocation, the court found that the trial judge's charge to the jury, when read as a whole, adequately conveyed the legal principles governing the defence, including the requirement for the provocation to be such as would have caused an ordinary person to lose self-control. The court affirmed that the jury was correctly directed on the subjective element of provocation, namely whether the particular accused was in fact provoked, and the objective element, namely whether the provocation was such as to cause an ordinary person to lose self-control.
The appeal was dismissed, and the conviction and sentence were affirmed.