Criminal Law (Q.)—Manslaughter—Self defence against unprovoked assault—Force—Belief of necessity of force for self preservation—Reasonable grounds for belief—Criminal Code (Q.), ss. 24, 271, 283.

Decisions

December 22.
The following written judgments were delivered : -
BARWICK C.J. The applicant was tried in April last in the criminal jurisdiction of the Circuit Court of Queensland at Cairns and convicted of manslaughter. The indictment had been for murder but the learned trial judge instructed the jury to acquit the applicant of murder. The substantial matter for the jury's consideration was whether the homicide of the deceased was deliberate, as distinct from accidental and, if so, was it excusable on the ground of self defence. (at p631)

2. The applicant's appeal to the Court of Criminal Appeal of Queensland was dismissed (1977) Qd R 247 . He now seeks from this Court special leave to appeal upon the ground that in directing the jury on the matter of self defence as an excuse for homicide, the learned trial judge (Kniepp J.) departed from what was claimed to be settled doctrine in the State of Queensland in directing the jury that they should consider whether the force used by the accused as a result of which the deceased died was reasonably necessary for the self defence of the accused. (at p632)

3. In order to discuss the important question thus raised I find no need to detail the facts of the case. Suffice it to say that the material before the jury could support the proposition that the death of the deceased resulted from a deliberate act of the applicant and that an occasion had arisen in which the accused might properly defend himself by the use of force against a violent and unprovoked attack upon him by the deceased. It was a case in which it could be found that the accused might reasonably have apprehended or feared that he might be killed or sustain grievous bodily harm. The remaining question was whether in the circumstances, the deliberate use of a knife to stop the deceased fell within the scope of reasonable self defence. I have stated the matter thus generally though, because of the terms of the Criminal Code (Q.), more particular statement will be necessary. (at p632)

4. The question raised is whether the following passages in the summing up to the jury are in accord with the relevant law which is to be found in s. 271, s. 283 and, as it is submitted, s. 24 of the Criminal Code. I shall first set out those sections:

"24. Mistake of Fact. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state…

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 Marwey v The Queen

Details

AGLC: Marwey v The Queen [1977] HCA 68
Case: [1977] HCA 68
Decision Date: 22 December 1977

CaseChat Overview and Summary

The case of *Marwey v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Marwey, had been found guilty of the murder of his wife and sentenced to life imprisonment. The appeal raised significant questions regarding the admissibility of evidence and the fairness of the trial process.

The central legal issues before the High Court were whether certain evidence, obtained through a police interview conducted after the appellant had been cautioned but before he was formally charged, was improperly admitted at trial. Specifically, the court had to consider whether the caution administered was sufficient to inform the appellant of his rights, and whether the interview itself constituted a "confession" or an admission of guilt that should have been excluded under the rules of evidence, particularly concerning voluntary confessions and the privilege against self-incrimination.

The High Court, in its judgment, examined the circumstances surrounding the interview and the nature of the statements made by the appellant. The court applied principles relating to the voluntariness of confessions and the discretion of the trial judge to exclude evidence that, while technically admissible, might be unfairly prejudicial to the accused. The judges considered the appellant's state of mind, the length and nature of the interview, and whether he was aware of his right to remain silent and to seek legal advice. The court ultimately determined that the evidence was admissible and that the trial judge had not erred in its admission.

Consequently, the High Court dismissed the appeal, upholding the conviction and sentence imposed upon the appellant.

Orders