Criminal Law—Murder—Recklessness—Whether foresight of consequences necessary—Directions to jury—Manslaughter—Unlawful Act—Assault—Whether apprehension of likely consequences necessary—Duty of judge to direct on acqittal where defence does not seek acquittal. Criminal Law—Appeal to High Court from Supreme Court of Northern Territory—Powers of High Court—To substitute verdict of guilty of manslaughter for guilty of murder—Northern Territory Supreme Court Act 1961 (Cth), s. 47 (4).*
Decisions
May 25. The following written judgments were delivered:- BARWICK C.J. The appellant was charged on indictment in the Supreme Court of the Northern Territory of Australia with the murder on 25th September 1970 at Darwin of Josephine Crosbie. He was tried at Darwin on 1st December 1970 and convicted of murder by a jury of twelve, the trial occupying only one day. He now appeals to this Court as of right against his conviction pursuant to s. 47 (1) (a) of the Northern Territory Supreme Court Act 1961 (Cth). The grounds of his appeal are misdirection and non-direction of the jury by the learned trial judge. The case presents unusual features which necessitate a recital both of the basic facts and of the course of the trial. I will first give the appellant's account of the happenings on 25th September 1970, the day of the shooting, drawn from his statement in court and from his statements to investigating police which were proved in evidence. The appellant did not give evidence on oath. (at p110)
2. The appellant and the deceased had been cohabiting for some period before the fatal day. However, some days before that day the deceased had apparently decided to terminate their relationship and to separate from him, a course which the appellant neither approved nor relished. The appellant made overtures to her with indifferent or perhaps I should say fluctuating success. But a definite break had come in their relationship a day or so before 25th September. On that day the appellant spoke to the deceased's father at the Darwin hotel. He told the appellant that the deceased had not come home the previous night. The father said to the appellant: "That daughter of mine is no good. She wants shooting." To which he replied: "Leave her alone Dad, she's only young." The father responded: "She'll come home with her arm or leg broken the way she is carrying on." After leaving the deceased's father the appellant had a couple of games of pool and then tried to find the whereabouts of a man through whom he hoped to obtain employment. A little after seven in the evening he arrived at a hotel called "The Dolphin" where he saw the deceased, her sister and her father. He offered them a lift out to the Fannie Bay Hotel in his car but was told by the deceased that they were going to Berrimah. The appellant went to Fannie Bay where he arrived…
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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Details
AGLC
Pemble v The Queen [1971] HCA 20
Case
[1971] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Pemble against a conviction for murder. The appellant had been found guilty of the murder of his wife, who had been shot by a rifle. The central dispute revolved around whether the appellant had intentionally discharged the firearm, or if the discharge was accidental.
The primary legal issue before the Court was whether the trial judge had adequately directed the jury on the element of intent required for a murder conviction, specifically in relation to the defence of accident. The Court had to determine if the jury, properly instructed, could have concluded beyond reasonable doubt that the appellant possessed the necessary intent to kill or cause grievous bodily harm at the time the rifle was discharged.
The Court held that the trial judge's summing up had been deficient. It was not sufficient to merely state that the act of firing the rifle must have been voluntary; the jury needed to be clearly directed that they must be satisfied beyond reasonable doubt that the appellant intended to discharge the rifle in a manner that would cause death or grievous bodily harm. The Court emphasised that an accidental discharge, even if the handling of the rifle was voluntary, would negate the necessary intent for murder. Consequently, the conviction was quashed, and a new trial was ordered.