Osland v The Queen

[1998] HCA 75

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

MARJORIE HEATHER OSLAND  APPELLANT

AND

THE QUEEN  RESPONDENT

Osland v The Queen (M14-1998) [1998] HCA 75
10 December 1998

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation:

J A Scutt with A C Thacker and F G Phillips for the appellant (instructed by Hale & Wakeling)

M S Weinberg QC with B Kayser for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Osland v The Queen

Criminal law – Murder – Acting in concert – Joint trial of two accused – Jury convicted one accused but unable to reach a verdict in respect of the other – Whether verdicts inconsistent such that conviction unsafe and unsatisfactory – Principles governing identification of inconsistency.

Criminal law – Complicity – Doctrine of concert – Understanding or arrangement between accused – Liability of one accused for acts performed by another – Whether dependent upon a common mental element – Whether affected by availability of a defence to, or other exculpatory feature in respect of, person performing the acts – Adequacy of trial judge's directions to jury.

Criminal law – Causation – Murder – Multiple acts contributing to death – Whether contribution of one accused sufficiently significant in own right to sustain causal link – Effect of Crimes Act 1958 (Vic), s 323 – Relevance of conduct of case.

Criminal law – Defences – "battered woman syndrome" – Whether a proper subject for expert evidence – Whether a sub-category of provocation or self‑defence, or a separate defence – Appropriateness of directions given to jury.

Criminal law – Evidence – Lies told by accused – Use to which evidence of lies may be put – Appropriate direction to be given to jury – Whether failure to direct resulted in a miscarriage of justice.

Criminal law – Evidence – Intercepted telephone conversations – Whether sufficiently probative to be admitted into evidence – Whether probative value outweighed by prejudicial effect.

R v Demirian [1989] VR 97 at 123-124, disapproved.
Crimes Act 1958 (Vic), s 323.

1. GAUDRON AND GUMMOW JJ.   Mrs Heather Osland and her son, David Albion, stood trial in the Supreme Court of Victoria charged with a single count of murder.  They were charged that, on 30 July 1991, they murdered Frank Osland, Mrs Osland's husband and David Albion's step-father.  The jury was unable to reach a verdict with respect to David Albion but convicted Mrs Osland of murder.

2. Mrs Osland appealed unsuccessfully to the Victorian Court of Appeal[1].  By the time of her appeal, David Albion had been retried and acquitted.  Mrs Osland now appeals to this Court.  One aspect of her appeal relates to the failure of the jury to convict her son.  On the prosecution case, it was he, alone, who struck the blow or blows that caused Mr Osland's death.

   [1]R vOsland