2.Set aside the order of the Court of Appeal of Queensland dated 24 August 1999 and, in lieu thereof, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed and a new trial be had.
On appeal from the Supreme Court of Queensland
Representation:
A J Rafter for the appellant (instructed by Dearden Lawyers)
L J Clare for the respondent (instructed by the Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Murray v The Queen
Criminal law – Homicide – Unlawful killing – Murder – Deceased died from gun shot wounds to chest – Whether shooting was an unwilled act or an event occurring by accident – What is "the act causing death" – Whether trial judge erred in failing to direct jury about unwilled acts – Whether it is for the jury to decide what is "the act causing death" – Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered.
Onus of proof – Whether the trial judge erred in directions to jury about onus of proof – Whether trial judge's direction to jury was apt to mislead the jury about the decision which was to be made.
Words and phrases – "act" – "event" – "accident".
The Criminal Code (Q), s 23.
GAUDRON J. The facts are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for holding that the appeal should be allowed on the sole ground that the trial judge directed the jury in a manner that mis-stated the onus of proof.
According to the evidence-in-chief of the appellant concerning the events leading to the death of Tony Celap, the deceased became verbally abusive whereupon he, the appellant, took a loaded shotgun from under his bed and approached the deceased with the gun in his right hand. As the deceased started to rise from a chair, the appellant lifted the gun to waist height, the deceased's arm shot out and something hit the appellant on the head. The gun then went off. He said that he took the gun into the room where the deceased was sitting solely with the intention of frightening him so that he would leave the house.
In cross-examination, the appellant said that he might have cocked the gun but could not remember doing so. He admitted that he pointed the gun at the deceased and said that his finger "would have been somewhere around the trigger guard" and possibly on the trigger. He denied that he deliberately pulled the trigger.
The prosecution case was that the appellant…
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 Murray v The Queen
Sign in free to access the full text
Details
AGLC
Murray v The Queen [2002] HCA 26
Case
[2002] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Appeal of Queensland concerning a conviction for murder. The appellant, Murray, was convicted of murder after the deceased died from gunshot wounds to the chest. The central dispute revolved around whether the shooting was an unwilled act or an event occurring by accident, as provided for under section 23(1) of the Queensland Criminal Code.
The legal issues before the High Court were whether the trial judge erred in failing to direct the jury on the concept of an unwilled act or an event occurring by accident, and whether it was for the jury to determine what constituted "the act causing death." Additionally, the Court considered whether the trial judge's directions to the jury regarding the onus of proof were apt to mislead them about the decision they were required to make, and if any such errors gave rise to a substantial miscarriage of justice warranting a new trial.
The High Court reasoned that the appellant's evidence, which suggested he was hit in the head by the deceased as the latter was getting up, and that the gun discharged at waist height when he lifted it, raised a question of fact for the jury as to whether the shooting was an unwilled act or an accident. The Court found that the trial judge's failure to adequately direct the jury on the provisions of section 23(1) of the Criminal Code, particularly in light of the appellant's account, meant that the jury may not have properly considered whether the act causing death was independent of the appellant's will or occurred by accident. The Court also found that the directions on the onus of proof were potentially misleading.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of Queensland dated 24 August 1999 and, in lieu thereof, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed and a new trial be had.
Background
Background to the litigation
Chapter 5 of the Queensland Code (ss 22‑36) deals with the subject of "Criminal Responsibility". Section 23(1) provides:"(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for–(a)an act or omission that occurs independently of the exercise of the person's will; or(b)an event that occurs by accident."The appellant contends that there were issues at his trial about whether there had been an act or omission that occurred independently of his will or an event that had occurred by accident. To examine that contention it is necessary to consider some of the evidence that was given at the trial, particularly the evidence given by the appellant.The facts On the night the deceased died, he and the appellant were drinking in the bar of an hotel. The appellant bought drinks for them both and they stayed until closing time. The appellant and the deceased left the hotel together and went, by car, to the appellant's house. Less than half an hour after the hotel had closed, the appellant spoke to police by telephone and said that he had just shot a person. There was evidence from neighbours which, if the jury accepted it, suggested that the shooting occurred about five minutes after the appellant had come home with the deceased. The deceased was sitting in a chair in the living room of the appellant's house when he was shot. According to the appellant, shortly after arriving home he went to the lavatory. While he was relieving himself the appellant heard the deceased, yelling to him from the living room, and offering to fight him. The appellant went to his bedroom and picked up his shotgun from under the bed. It was loaded. Holding the gun in his right hand, the appellant went into the living room. According to the appellant's account in his evidence‑in‑chief, as he approached the deceased, the latter:"sort of turned around to the side and about side on as he was getting up, and his arm shot out and hit me – something hit me in the head. I had the gun; as he was starting to get up, I lifted it, I think, and it was about waist height I'd say when I got hit in the head and the gun went off."When asked by his trial counsel why he had taken the gun with him, the appellant said that he wanted the deceased to get out of the house, that he thought the sight of the gun would frighten the deceased, and that he would frighten the deceased with it and he would go. The appellant maintained this version of events in cross‑examination but, in addition, acknowledged that he might have cocked the gun at the time he pointed it at the deceased. Indeed, in answer to the question "You might have intended to point it at him cocked?" he answered "Yes, I believe I did, yes." When asked where his finger was, he said "[i]t would have been somewhere around the trigger guard" and that it "[c]ould well have been" on the trigger. Nonetheless, he said he could not give an answer on why the gun went off. He denied pulling the trigger deliberately.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAUDRON J
GUMMOW AND HAYNE JJ
(dissent)
KIRBY J
(dissent)