O'Meally v The Queen - [1958] HCA 7

THE QUEEN

RESPONDENT. TAYLOR

THE QUEEN

RESPONDENT. Criminal LawPunishment-Court authorised by statute to order whipping where

" the commission of the offence was attended with or accompanied by cruelty or great personal violence - Whether fulfilled if cruelty etc. consisted of facts which constituted essential elements of crime charged-Considerations admissible in determining whether crime should be punished by whipping-Crimes Act 1928 (Vict.) (No. 3664), S. 510 (2).

Section 510 (2) of the Crimes Act 1928 (Vict.) provides that " Where any male person

is convicted of an indictable offence against the person of another, and in the opinion of the court the commission of the offence was attended with or accompanied by cruelty or great personal violence the court may in addition to the punishment awarded direct that he be once twice or thrice privately whipped."

Held, that the cruelty or great personal violence could consist in the facts which constituted the essential elements of the crime charged.

Two prisoners were convicted of unlawfully and maliciously wounding a prison official with intent to do grievous bodily harm. The trial judge sentenced each man to six years' imprisonment and to be privately whipped with twelve strokes of the cat-o'-nine-tails. While the trial judge based the sentences on the violence involved in the crime he said in effect that he would not have ordered the whipping had it not been for all the surrounding circum- stances including the fact that the men were prisoners one of whom was serving

98 CLR 14

a life sentence without benefit of remissions and the other of whom was serving a sentence of which about ten years remained unexpired, that they had already broken gaol and that the grievous bodily harm had been inflicted on a prison official in order to effect an escape.

THE QUEEN.

Held, that the considerations were not inadmissible in determining whether the crime should be punished under S. 510 (2).

Special leave to appeal from decision of Court of Criminal Appeal of Victoria,

APPLICATION for special leave to appeal from the Court of Criminal Appeal of Victoria.

On 7th August 1957 William John O'Meally and John Henry Taylor pleaded guilty before Hudson J. in the Supreme Court of Victoria to a charge of having on 29th March 1957 escaped from Pentridge Gaol. By the presentment by which they were SO charged they were further charged with wounding Robert Henry Davis, one of the warders at the gaol, with intent to do him grievous bodily harm. To this further charge which related to an act done on the day of the said escape in order to enable the escape to be made, they pleaded not guilty, but upon their trial on 27th August 1957 they were both found guilty. Taylor, who was aged twenty-seven years, admitted ten prior convictions, the earliest of which was in 1950. Four were for using a motor car without the consent of the owner. Then followed two for shop-breaking and stealing. Then in…

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 O'Meally v The Queen

Details

AGLC: O'Meally v The Queen [1958] HCA 7
Case: [1958] HCA 7
Decision Date: 14 March 1958

CaseChat Overview and Summary

This case concerned an application for special leave to appeal to the High Court of Australia from an order of the Court of Criminal Appeal of Victoria. The applicants, O'Meally and Taylor, had been convicted of unlawfully and maliciously wounding a prison official with intent to do grievous bodily harm, an offence under section 14 of the Crimes Act 1928 (Vict.). In addition to sentences of imprisonment, the trial judge had directed that both men be privately whipped, a power conferred by section 510(2) of the Crimes Act 1928 (Vict.). The applicants sought to challenge the imposition of the whipping sentences.

The legal issues before the High Court were twofold. Firstly, the Court had to determine the proper construction of section 510(2) of the Crimes Act 1928 (Vict.), specifically whether the "cruelty or great personal violence" required to authorise a whipping could consist of facts that were essential elements of the crime charged. Secondly, the Court was required to consider whether the specific circumstances and considerations relied upon by the sentencing judge were admissible in exercising the discretion to order whipping under that section.

The High Court held that the cruelty or great personal violence referred to in section 510(2) could indeed consist of facts that constituted the essential elements of the crime charged. The Court reasoned that the legislative intent behind the provision, particularly after the repeal of earlier sections that specifically enumerated offences liable to whipping, was to provide a general test for the imposition of such punishment. The Court found that the words "attended with or accompanied by cruelty or great personal violence" were broad enough to encompass situations where such violence was inherent in the commission of the offence itself, not merely superadded. Furthermore, the Court found that the considerations relied upon by the sentencing judge, including the fact that the offence was committed by prisoners against a prison official during an escape attempt, were not inadmissible. These circumstances were relevant to the character of the great personal violence involved and thus permissible in determining whether to exercise the discretion to order whipping.

Consequently, the High Court refused the application for special leave to appeal.

Orders