Parsons v The Queen - [1957] HCA 75

THE QUEEN Criminal Law-Murder-Penalty-Pena servitude for life-Former penalty of

death-Trial-Jury-Peremptory challenges by prisoner-Number to which entitled-Capital offence-Whether murder capital " - Crimes (Amendment) Act 1955 (N.S.W.), 8. 5 (b)-Jury Act 1912-1951 (N.S.W.), S. 55 (2).

Section 55 of the Jury Act 1912-1951 (N.S.W.) provides :---" " (1) The same right of challenge to jurors shall exist in cases of misdemeanour as in cases of felony. (2) No persons shall, except for cause shown, be allowed in either case more than eight, or if the offence charged be capital, twenty challenges.

Held, that the words if the offence charged be capital refer not to charges which by the law as it stood at the date of the enactment in 1912 of the sub-section were capital but to offences in respect of which a prisoner upon his trial stands in jeopardy of a capital sentence.

Accordingly where subsequent to the passing of the Crimes (Amendment) Act 1955 (N.S.W.), which altered the penalty for murder from death to penal servitude for life, and prior to the passing of the Supreme Court Procedure Act 1957 a prisoner upon his trial for murder claimed to be entitled to twenty peremptory challenges under S. 55 (2) above-mentioned.

Held, that he was not SO entitled. Decision of the Court of Criminal Appeal of New South Wales Reg. V. Parsons (1957) 74 W.N. (N.S.W.) 401, affirmed.

APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.

William John Parsons was arraigned on 26th September 1956 in the Central Criminal Court of New South Wales before Walsh J. on an indictment charging that he on 4th July 1956 at Long Jetty in the State of New South Wales did feloniously and maliciously murder Pearl Lyons. Upon his arraignment it was claimed on his behalf that he was entitled, when the jury was being empanelled,

97 CLR 456

to twenty peremptory challenges under S. 55 (2) of the Jury Act 1912-1951 (N.S.W.). This claim was denied by the trial judge who declined to allow the prisoner more than eight peremptory challenges.

THE QUEEN.

At his trial the prisoner sought to make a case of provocation but was convicted of murder and was sentenced to penal servitude for life.

The prisoner appealed from his conviction and sentence to the Court of Criminal Appeal of New South Wales (Owen J., Roper C.J. in Eq. and Clancy J.) upon three grounds -1 that on the empanelling of the jury after his arraignment the trial judge erred in denying to the prisoner twenty peremptory challenges; (2) that the trial judge wrongly directed the jury on the issue of provocation; and (3) that there was fresh evidence available touching the issue of provocation. His appeal was dismissed: Reg. v. Parsons (1).

From this decision the prisoner by notice of motion dated 3rd May 1957 applied to the High Court for special leave to appeal upon the same three grounds as had been relied upon…

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 Parsons v The Queen

Details

AGLC: Parsons v The Queen [1957] HCA 75
Case: [1957] HCA 75
Decision Date: 18 November 1957

CaseChat Overview and Summary

The case of *Parsons v The Queen* involved an application for special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. The applicant, William John Parsons, had been convicted of murder and sentenced to penal servitude for life. The central dispute concerned the number of peremptory challenges he was entitled to during the empanelling of the jury.

The primary legal issue before the High Court was the interpretation of section 55(2) of the *Jury Act 1912* (N.S.W.). Specifically, the court had to determine whether the phrase "if the offence charged be capital" referred to offences that were capital at the time the subsection was enacted in 1912, or to offences in respect of which a prisoner stood in jeopardy of a capital sentence at the time of their trial. This question arose because the penalty for murder had been altered from death to penal servitude for life by the *Crimes (Amendment) Act 1955* (N.S.W.) prior to the applicant's trial.

The High Court, in dismissing the application for special leave to appeal, affirmed the decision of the Court of Criminal Appeal. The majority reasoned that section 55(2) of the *Jury Act* was intended to have an ambulatory operation, meaning it applied to the circumstances at the time of the trial. The phrase "if the offence charged be capital" was interpreted to refer to the current penalty for the offence. Therefore, as murder was no longer a capital offence at the time of Parsons' trial due to the *Crimes (Amendment) Act 1955*, he was only entitled to eight peremptory challenges, not the twenty available for capital offences. The court found that the legislative change in the penalty for murder necessarily impacted the number of peremptory challenges available, as the right to twenty challenges was contingent on the offence being capital.

The application for special leave to appeal was refused.

Orders