ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal LawIndictmentTwo counts of murder-Validity-Murder-Manslaughter
Self-defence-Provocation-Criminal Code (Tas.) (14 Geo. v. No. 69), sec. 311 (2), (3). SYDNEY, Aug. 26, 27;
High Court-Special leave to appeal-Criminal cases-Discretion of court. Sept. 3.
Sec. 311 of the Criminal Code (Tas.) provides :----" " (2) Except as provided in sub-section 3 hereof, charges of more than one crime may be joined in the same indictment if those charges are founded on the same facts, or are, or form part of, a series of crimes of the same or a similar character. In any other case an indictment shall charge one crime only. (3) No indictment for murder shall contain a charge for any other crime."
Held, by Latham C.J., Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), that under sub-secs. 2 and 3 of sec. 311, although an indictment for murder must be confined to charges of murder, it may properly include several charges of murder if the murders charged are founded on the same facts or are, or form part of, a series of crimes.
Per Evatt J.: The fact that, if special leave to appeal were given in a criminal matter, the court is of opinion that the appeal would be allowed is not in itself sufficient to justify the granting of special leave to appeal.
What constitutes a defence to a charge of murder on the ground of self- defence, and what amounts to provocation to reduce the crime to manslaughter,
Special leave to appeal from the Court of Criminal Appeal of Tasmania
APPLICATION for special leave to appeal from the Court of Criminal Appeal of Tasmania.
Donovan Henry Charles Cruttenden Packett was presented before the Supreme Court of Tasmania upon an indictment which charged him in the first count with the murder of one Gordon Charles Fran- combe at or near Moina, Tasmania, on 26th April 1937, and in the second count with the murder of one Henry Francis Lawson at the same place on the same date. On his arraignment an objection was made to the indictment on the ground that under sec. 311 (3) of the Tasmanian Criminal Code the inclusion of more than one charge of murder in the same indictment was forbidden. The objection was overruled by the trial judge. Packett pleaded not guilty to the charges. He admitted that he had shot the two men but pleaded provocation and self-defence. He was convicted on both counts and was sentenced to death. An appeal to the Court of Criminal Appeal, based on the grounds (a) that the trial judge misdirected, and omitted to direct, the jury in respect of various matters, and (b) that, having regard to the provisions of sec. 311 (3) of the Criminal Code, the indictment was irregular, was dismissed.
The prisoner applied to the High Court for special leave to appeal from that decision.
Further facts, the terms of the summing up, and the relevant statutory…
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.
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AGLC
Packett v The King [1937] HCA 53
Case
[1937] HCA 53
Decision Date
CaseChat Overview and Summary
The applicant, Donovan Henry Charles Cruttenden Packett, was indicted in the Supreme Court of Tasmania on two counts of murder, for the deaths of Gordon Charles Francombe and Henry Francis Lawson on the same date and at the same location. An objection was raised to the indictment on the grounds that it contravened section 311(3) of the Tasmanian Criminal Code, which prohibits an indictment for murder from containing a charge of any other crime. This objection was overruled by the trial judge. Packett pleaded not guilty, admitting to shooting the deceased but relying on defences of provocation and self-defence. He was convicted on both counts and sentenced to death. His subsequent appeal to the Court of Criminal Appeal of Tasmania, which also raised the issue of the indictment's validity and alleged misdirections by the trial judge, was dismissed. Packett then sought special leave to appeal to the High Court.
The High Court was required to determine two primary legal issues. Firstly, whether section 311 of the Criminal Code (Tas.) permitted an indictment to contain multiple charges of murder, or if section 311(3) restricted an indictment for murder to a single charge of murder. Secondly, the court had to consider whether the trial judge's summing up contained misdirections regarding the onus of proof, the defence of provocation, the defence of self-defence, and the possibility of a manslaughter verdict, particularly in light of the principles established in *Woolmington v. Director of Public Prosecutions*.
A majority of the High Court (Latham C.J., Dixon, Evatt, and McTiernan JJ., with Starke J. dissenting) held that section 311(3) of the Criminal Code did not prohibit an indictment from containing multiple charges of murder, provided those charges were founded on the same facts or formed part of a series of crimes of the same or a similar character, as permitted by section 311(2). The court reasoned that section 311(3) acted as an exception to section 311(2) by prohibiting the joinder of murder charges with charges of other crimes, but it did not limit the number of murder charges that could be included in an indictment. The majority found that the trial judge's directions on the onus of proof were adequate and that the judge had correctly applied the principles of *Woolmington's Case* in the context of the Tasmanian Code. Furthermore, the court concluded that the trial judge had properly left the issues of provocation and self-defence to the jury, and had not misdirected them regarding the possibility of a manslaughter verdict.
Consequently, the High Court refused special leave to appeal. Starke J., dissenting, would have found that the indictment was irregular in joining two counts of murder, although he did not consider this irregularity sufficient to warrant granting special leave to appeal given that no injustice had been occasioned to the prisoner.