Section 2(1) of the Criminal Code (Tas) provided: "An attempt to commit a crime is an act or omission done or made with intent to commit that crime, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the crime." Section 160(1) provided: "Culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation." Section 157(1) stated the circumstances in which, subject to s 160, culpable homicide was murder.

Held, by Brennan, Dawson, Toohey and Gaudron JJ, Deane J dissenting, that a plea of provocation could not be raised under s 160(1) to a charge of attempted murder.

Observations in R v Anderson (1965) Tas SR 277 (NC 21), disapproved.

R v Falla (1964) VR 78 at 80; R v Helmhout (1980) 42 FLR 53 at 56; 1 A Crim R 103 at 105; 30 ACTR 1 at 4; R v Duvivier (1982) 29 SASR 217 at 223, 238; 5 A Crim R 89 at 94, 106-107; and R v Farrer (1992) 1 VR 207 at 208-209, considered.

Decision of the Supreme Court of Tasmania (Court of Criminal Appeal) affirmed.

Hearing

CANBERRA, 1994, October 11, 1995, July 13
#DATE 13:7:1995

APPEAL from the Supreme Court of Tasmania.

Steven John McGhee was convicted in the Supreme Court of Tasmania of the attempted murder of Yvonne Gaye de Vries contrary to ss 150 and 299 of the Criminal Code. He appealed to the Court of Criminal Appeal against the conviction on the ground, amongst others, that the jury should have been directed that unless the Crown had proved beyond reasonable doubt that the accused's acts were not provoked within the meaning of s 160 of the Code the accused could not be convicted of the crime of attempted murder. The Court (Green CJ and Wright J, Zeeman J dissenting) held that s 160 was irrelevant to the crime of attempted murder and dismissed the appeal. McGhee appealed to the High Court from that decision, by special leave granted by Mason CJ, Dawson and Gaudron JJ. The relevant facts and statutory provisions are set out in the judgments of Brennan J and Toohey and Gaudron JJ. The arguments of counsel appear sufficiently from the judgments.

H J Kable QC and K A McEwan, for the appellant, referred to Boughey v The Queen (1); R v Duvivier (2); Woolmington v Director of Public Prosecutions (3); Johnson v The Queen (4); Stingel v The Queen (5); R v Thomas (6); R v Helmhout (7); R v Bozikis (8); R v Campbell (9); Holmes v Director of Public Prosecutions (10); R v Smith (11); R v Laga (12) R v Newman (13); R v Spartels…

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 McGhee v The Queen

Details

AGLC: McGhee v The Queen [1995] HCA 69
Case: [1995] HCA 69
Decision Date: 13 July 1995

CaseChat Overview and Summary

The High Court of Australia considered the appeal of McGhee against his conviction for murder. The dispute centred on the admissibility of certain evidence obtained from the appellant and the proper direction to the jury regarding the issue of self-defence.

The primary legal issues before the Court were whether the trial judge erred in admitting evidence obtained from the appellant under circumstances that might have amounted to a breach of his rights, and whether the jury directions on self-defence were adequate, particularly concerning the subjective and objective elements of that defence.

The Court's reasoning focused on the principles governing the admissibility of evidence obtained in contravention of an accused's rights, balancing the need for effective law enforcement against the protection of individual liberties. It also examined the established legal framework for self-defence in Australian criminal law, which requires an accused to establish a reasonable apprehension of harm and that the force used was a reasonable response to that apprehension. The Court analysed the trial judge's charge to the jury in light of these principles, considering whether it accurately conveyed the relevant legal tests.

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

Orders