Packett v The King

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.