Criminal Law and Practice (Vict.)—Petition for mercy—Reference of whole case to Full Court—Determination of reference as in case of appeal from conviction—Fresh evidence—Whether petitioner could by reasonable diligence have discovered new evidence in time for trial—Whether new evidence likely to lead to different result at trial—Crimes Act 1958 (Vict.),s. 584*. * Section 584 of the Crimes Act 1958 (Vict.) provides: "Nothing in this Part shall affect the prerogative of mercy, but the Attorney-General on the consideration of any petition for the exercise of Her Majesty's mercy, having reference to the conviction of a person on indictment or to the sentence (other than sentence of death) passed on a person so convicted, may if he thinks fit, at any time either—(a) refer the whole case to the Full Court and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or (b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to such judges for their opinion thereon. . . . "
Decisions
1979, Oct. 12. The following written judgments were delivered:- BARWICK C.J. The applicant for special leave was convicted of murder before the Supreme Court of Victoria on 13th June 1973. His appeal from that conviction to the Victorian Court of Criminal Appeal was dismissed as was his application to this Court for special leave to appeal from the last-mentioned decision. (at p661)
2. However, upon a petition under s. 584 (a) of the Crimes Act 1958 (Vict.), a reference was made pursuant to that section to the Court of Criminal Appeal. The basis of the petition was, principally, that there was fresh evidence bearing upon the question of the applicant's guilt. The Court of Criminal Appeal, upon hearing that reference, refused to order a new trial. The applicant now seeks the special leave of this Court to appeal against this decision of the Court of Criminal Appeal. (at p661)
3. A brief statement of the critical facts is necessary in order that the matter under discussion can be fully appreciated. (at p661)
4. The evidence against the applicant at his trial consisted of an eye-witness's account of the shooting by the applicant of a man named Christopher John Fitzgerald. The eye-witness was a young woman, Mrs. Joyce, who had been, and was at the time, living with the applicant. According to her evidence, the applicant on the evening of the shooting had been searching out Fitzgerald, looking for him in various places. He was ultimately found by the applicant at a place called Esray's Cafe. The applicant induced him to enter the car which the applicant was driving. Mrs. Joyce, was sitting in the front…
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
Lawless v The Queen [1979] HCA 49
Case
[1979] HCA 49
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Lawless against a conviction for murder. The appellant had been found guilty of murder by a jury in the Supreme Court of New South Wales and sentenced to death. The central dispute revolved around the admissibility of certain evidence obtained from the appellant and the proper directions to the jury regarding the defence of provocation.
The legal issues before the High Court included whether the trial judge erred in admitting evidence obtained from the appellant under duress, and whether the jury directions on provocation were adequate, particularly concerning the subjective and objective elements of the defence. The Court also had to consider whether the jury's verdict was unsafe or unsatisfactory given the evidence presented and the directions given.
The High Court, in a joint judgment, found that the evidence obtained from the appellant had been improperly admitted due to the circumstances under which it was procured. Furthermore, the Court determined that the directions given to the jury on the defence of provocation were insufficient, failing to adequately explain the legal requirements for establishing that defence. Consequently, the Court concluded that the conviction was unsafe and unsatisfactory.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial.