Evidence—Criminal trial—Admissibility—Similar facts—Charge of attempt to murder husband by arsenic poisoning—Husband suffering from arsenic poisoning in 1978—Death of first husband of arsenic poisoning in 1961—Death of brother of arsenic poisoning in 1962—Death of de facto husband from overdose of barbiturates in 1970—Evidence of earlier deaths.
Decisions
1982, December 16. The following written reasons for judgment were published:- GIBBS C.J. The applicant, Mrs. Perry, was tried on indictment before the Supreme Court of South Australia on two charges of attempting to murder Mr. Perry, who is her third husband. The case for the prosecution was that from about 1 July 1978 until about 30 November 1978, and again from about 1 February 1979 until about 31 October 1979, the applicant administered poison to her husband with intent to kill him. She was convicted on both counts. She appealed to the Court of Criminal Appeal on a number of grounds, but her appeal was dismissed. She then applied to this Court for special leave to appeal. The main ground on which the application was made (and the only ground which the Court permitted to be argued in full) was that the learned trial judge had wrongly admitted evidence which, according to the Crown, showed that three other persons with whom the applicant had had a close relationship had died of poisoning. This Court granted special leave, allowed the appeal, set aside the conviction and ordered a new trial but announced that the reasons for the decision would be given later. I now give my reasons for joining in the decision. (at p582)
2. There was clear evidence that during part at least of the periods in question the applicant's husband, Mr. Perry, became seriously ill as a result of poisoning by lead and arsenic, probably in the form of lead arsenate. The applicant, who was living with Mr. Perry, had the opportunity to administer the poison to him. She stood to benefit financially from his death, under a number of policies of insurance. It is unnecessary to review the details of the evidence against the applicant, other than that whose admissibility is in question, and undesirable to comment on its weight, since a new trial has been ordered. The defence was that the poison had been accidentally ingested by Mr. Perry over a period of time and that the applicant had not played any part in causing him to take it. Mr. Perry himself gave evidence for the defence and asserted the innocence of the applicant. The theory advanced by the defence was that Mr. Perry must have ingested the poison while he was working on the renovation of some old musical instruments, especially an orchestrelle (a sort of large organ), which contained the remains of rat or insect poison, one of whose components was arsenic, and…
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
Perry v The Queen [1982] HCA 75
Case
[1982] HCA 75
Decision Date
CaseChat Overview and Summary
In *Perry v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Perry, had been found guilty of murder by a jury in the Supreme Court of Queensland and sentenced to life imprisonment. The central dispute revolved around the admissibility of certain evidence and the directions given by the trial judge to the jury.
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant under duress, and whether the judge's directions to the jury regarding the elements of murder and the defence of provocation were adequate and correct in law. Specifically, the court had to consider the application of the principles governing the admissibility of confessions and the proper understanding of the mental elements required for a murder conviction, including the distinction between intent to kill or cause grievous bodily harm and the intent to do an unlawful act which the accused knew was likely to cause death or grievous bodily harm.
The Court, in a joint judgment, held that the evidence obtained from the appellant under duress should have been excluded. They applied the principle that confessions obtained by unfair means, including duress, are inadmissible. Furthermore, the Court found that the trial judge's directions on the elements of murder were insufficient, particularly in relation to the specific intent required. The judge had failed to adequately explain that the prosecution must prove beyond reasonable doubt that the appellant intended to kill or cause grievous bodily harm, or that he intended to do an unlawful act which he knew was likely to cause death or grievous bodily harm. The directions on provocation were also found to be wanting.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.