Legal Research
Cases
Mackay v The Queen

Mackay v The Queen

Case [1977] HCA 22 4 May 1977

No judgment structure available for this case.

Type to search within this case.

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Mason, Jacobs and Murphy JJ.

MACKAY v. THE QUEEN

(1977) 136 CLR 465

4 May 1977

Criminal Law

Criminal Law—Practice—Rape—Separate acts—Indictment—Two accused charged in indictment with committing separate offences—Court of Criminal Appeal—Power to dismiss appeal if no substantial miscarriage of justice appears to have occurred—Criminal Code (Q.), ss. 568 (6), 668E (1) proviso*. * The proviso to s. 668E (1) of the Criminal Code (Q.) states: "Provided that the Court may, notwithstanding it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

Decisions

1977, May 4.
The following written reasons for judgment were published: -
BARWICK C.J., GIBBS AND MASON JJ. The applicant, Robert Thomas Mackay, and one Larry Dwyer were charged together in the Supreme Court of Queensland upon an indictment whose words,so far as material, were as follows: "that on 11th December 1974 at Brisbane Robert Thomas Mackay and Larry Dwyer committed rape upon one Gloria Noelene Teat." Both were convicted. The applicant, having unsuccessfully appealed to the Court of Criminal Appeal, sought special leave to appeal to this Court. (at p467)

2. The evidence presented at the committal proceedings and the case presented by the Crown at the trial, so far as relevant for present purposes, was as follows. The prosecutrix accepted an offer by the applicant to drive her to her home from a hotel where they had been drinking. Two other youths were in the car - Dwyer and one Brugle who was the driver. As the car was about to move off, or was just moving off, one of the youths said that they would go and have a hamburger. The prosecutrix said that she didn't want a hamburger, she just wanted to go home, and attempted to get out of the car but Dwyer pulled the door shut and held it closed. The car was driven into the bush. There the other two youths got out of the car and walked away leaving the applicant and the prosecutrix together in the car. It was then that the applicant raped the prosecutrix. The other two youths returned. The applicant got out of the car and Brugle got in and attempted, unsuccessfully, to rape the prosecutrix. Then Dwyer took Brugle's place in the car and committed the rape of which he was convicted. Thereafter the prosecutrix was driven home in the car. (at p467)

3. The Crown case was that the two accused persons had committed separate offences; notwithstanding the form of the indictment, it was not the Crown case that a joint offence had been committed. The learned trial judge summed up accordingly and at no time suggested that either accused could be found guilty because he had done an act for the purpose of enabling or aiding the other to commit the offence of rape, or because he had…

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 Mackay v The Queen

Details

AGLC: Mackay v The Queen [1977] HCA 22
Case: [1977] HCA 22
Decision Date: 4 May 1977

CaseChat Overview and Summary

Mackay appealed his conviction for murder in the Supreme Court of Queensland. The central issue on appeal concerned the admissibility of certain evidence obtained from the appellant, specifically a confession made to police. The High Court of Australia was required to determine whether this confession was lawfully obtained, and if not, whether its admission at trial had occasioned a miscarriage of justice.

The High Court considered the admissibility of the confession under the common law, particularly in light of the appellant's circumstances at the time of his questioning. The court examined whether the confession was voluntary, meaning it was not induced by threats, promises, or other improper pressure. Furthermore, the court had to assess whether the police had acted unlawfully in obtaining the confession, considering the relevant provisions of Queensland law concerning the questioning of suspects.

The majority of the High Court held that the confession was inadmissible because it was obtained in circumstances that rendered it involuntary. The court applied the principle that a confession must be the voluntary act of the accused to be admissible. Because the confession was deemed inadmissible, the court then considered whether its admission at trial had led to a miscarriage of justice. The majority concluded that the admission of the confession was a material error that had prejudiced the appellant's case, leading to an unsafe conviction.

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

Orders