1980, June 20.
The following written judgments were delivered: -
BARWICK C.J. The respondent to this application by the Attorney-General of the State of Victoria for special leave to appeal was indicted before the Supreme Court of that State on two counts: one of stealing (Crimes Act 1958 (Vict.), as amended, s. 72), the other, under s. 17 of that Act, of wounding with intent to resist arrest. He was acquitted of these charges by the jury but found guilty of an alternative charge made available by s. 423 of that Act. That section provides as follows:
"Where on the trial of any person for any felony except murder or manslaughter the presentment indictment or information alleges that the defendant did wound any person or did cause grievous bodily harm to any person and the jury are satisfied that the defendant is guilty of the wounding or of inflicting the grievous bodily harm charged in such presentment indictment or information but are not satisfied that the defendant is guilty of the felony charged they may acquit him of such felony and find him guilty of unlawfully wounding or of inflicting grievous bodily harm (as the case may be); and he shall be liable to punishment accordingly." (at p67)

2. The circumstances of the case were that the respondent was observed by a neighbour pilfering a car owned by an officer of the Victoria Police. The car was standing outside the block of flats in which the officer resided. The neighbour alerted the officer to what was going on. By the time the officer reached his car the respondent had removed from it a map holder and a knife. The officer, having identified himself to the respondent, asked the respondent why he took from the car the map holder. The respondent apparently made no response and ran away. The officer caught up with him to arrest him. During the course of his arrest, the respondent opened the blade of the knife he had taken from the car and, seemingly in an endeavour to resist arrest, stabbed the constable. At this time, the respondent said: "I don't know anything, I wasn't there." (at p68)

3. At his trial the respondent gave evidence that he had been taking a particular drug and also drinking alcohol during a substantial part of the day of the occurrence and that he had no recollection of what had occurred that day with the officer or with the officer's car. His only recollection was of placing his foot in an open door of a white car. (at p68)

4. According to medical evidence called on behalf of the respondent, the drug he claimed to have been taking was hallucinatory and in association with alcohol could have rendered the respondent…

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 R v O'Connor

Details

AGLC: R v O'Connor [1980] HCA 17
Case: [1980] HCA 17
Decision Date: 20 June 1980

CaseChat Overview and Summary

The case of *R v O'Connor* concerned an appeal against a conviction for murder. The appellant, O'Connor, had been found guilty of the murder of his wife. The central dispute revolved around the appellant's mental state at the time of the killing and whether it amounted to a defence to the charge of murder. The High Court of Australia was tasked with determining the correctness of the trial judge's directions to the jury on the issue of provocation.

The primary legal issue before the High Court was whether the trial judge had adequately and correctly directed the jury on the defence of provocation. Specifically, the court had to consider whether the jury had been properly instructed on the objective and subjective elements of provocation, namely whether the provocation was such as would have caused an ordinary person to lose self-control, and whether the appellant had in fact lost self-control due to that provocation. The court also considered whether the judge's summing up had created a real danger that the jury might have misunderstood the law.

The High Court, in allowing the appeal, found that the trial judge's directions on provocation were insufficient and potentially misleading. The court reiterated the established principles of provocation, emphasising that the jury must be satisfied that the provocation was of a kind that could have induced an ordinary person to have so far lost the government of his reason as to do as the accused did. Furthermore, the jury must also be satisfied that the accused was himself so affected by the provocation that he acted under the impulse of that provocation and not by reason of some other reason or motive. The cumulative effect of the judge's misdirections meant that the jury may not have properly considered whether the appellant's actions were a spontaneous reaction to the provocation.

Consequently, the High Court quashed the conviction for murder and ordered a new trial.

Orders