Criminal Law and Practice (W.A.)—Indictment—Offences charged against one provision of Code—Trial conducted as though offences against another provision—Misdirection of jury—Whether substantial miscarriage of justice—Criminal appeal provisions—Criminal Code of Western Australia, ss. 4, 283, 689 (1)—Criminal Practice Rules (W.A.), O. II, r. 2.
Decisions
August 12. The following written judgments were delivered: - GIBBS J. The facts of this case are set out in the joint judgment of Mason and Wilson JJ. The question to which those facts give rise is whether, notwithstanding the errors of law that occurred at the trial, the Court of Criminal Appeal should have allowed the verdicts to stand on the ground that no substantial miscarriage of justice had occurred. (at p597)
2. The applicant was arraigned on two charges: (1) that he with intent unlawfully to kill one Graham Wynne discharged loaded firearms at him; (2) that he with intent to do grievous bodily harm to one Graham Wynne unlawfully did grievous bodily harm to Perry Ugle. (at p597)
3. The first of these charges was laid under s. 283 (2) of the Criminal Code (W.A.). The offence is stated in the words of the form prescribed by No. 170 (2) of the Schedule of Forms to the Criminal Practice Rules. A statement in this form is sufficient as a matter of procedure (O. II, r. 2 of the Criminal Practice Rules), but it does not include all the elements which as a matter of law constitute an offence. Perhaps it was the form of the charge that misled the learned trial judge and both counsel into thinking that the applicant had been charged under s. 283 (1). (at p598)
4. The charges constituted by the two sub-sections of s. 283 are similar, and in some cases a charge arising out of one set of circumstances might properly be laid under either sub-section. However, the elements of the two offences are not the same. The material words of s. 283 are as follows:
"Any person who - (1) Attempts unlawfully to kill another; or (2) With intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life; is guilty of a crime. . . . "
To give meaning to s. 283 (1) it is necessary to read into it the description of "attempt" contained in s. 4 of the Code. The result is that if in the present case the charge had been laid under s. 283 (1) it would have been incumbent on the Crown to prove that the applicant intended to kill Wynne, that he began to put his intention into execution by means adapted to its fulfilment (namely by discharging the firearm) and manifested his intention by…
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
Quartermaine v The Queen [1980] HCA 29
Case
[1980] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Quartermaine, against his conviction for murder. The applicant had been found guilty of the murder of his wife, who died from a gunshot wound. The central dispute revolved around the applicant's mental state at the time of the shooting and whether it amounted to the defence of provocation.
The primary legal issue before the High Court was whether the trial judge had erred in directing the jury on the defence of provocation. Specifically, the court had to determine whether the jury should have been instructed that provocation could arise from a single act or insult, and whether the subjective and objective elements of provocation had been adequately explained. The court also considered whether the evidence presented was capable of supporting a finding of provocation.
The High Court held that provocation, as a defence to murder, could indeed arise from a single act or insult, provided that act or insult was sufficient to cause an ordinary person to lose self-control and did, in fact, cause the accused to lose self-control. The court emphasised that the jury must consider both the subjective state of the accused and the objective standard of an ordinary person. In this instance, the court found that the trial judge's directions had been inadequate in explaining these principles, leading to a miscarriage of justice.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.