Criminal Law—Habitual criminal—Declaration—Previous convictions on at least three occasions—Convictions on separate counts in same information heard in one court at the one time—Criminal Law Consolidation Act, 1935-1957 (S.A.), s. 319 (1) (b).
Decisions
1968, April 26. The following written judgments were delivered : - BARWICK C.J. The question on this appeal is whether it was competent for the judge who sentenced the applicant at the same time to declare him an habitual criminal. The answer is to be found in the proper construction of s. 319 (1) (c) of the Criminal Law Consolidation Act, 1935-1957 of the State of South Australia. That section and the circumstances of the case are set out by my brother Menzies in his reasons for judgment which I have had the advantage of reading. There is therefore no need for me to do so. Further, I agree entirely with the conclusion reached by his Honour and with the reasoning by which he supports it. Having regard, however, to certain views expressed in the judgment of the majority of the Full Court of the Supreme Court of South Australia in this case (1967) SASR 184 and by Gibbs J. in Reg. v. Keitley (1965) Qd R 190 , I wish to add a few remarks of my own. (at p470)
2. The terms of s. 319 were originally derived from s. 3 of the Habitual Criminals Act, 1905 of the State of New South Wales, a provision which was also adopted in substance by the States of Victoria, Queensland and Western Australia and by New Zealand. When first enacted in South Australia in 1907 as s. 3 of the Habitual Criminals Amendment Act of that year, it had been preceded by an Act called the Habitual Criminals Act, 1870 (S.A.), the substance of which is now to be found in s. 316 of the Criminal Law Consolidation Act. Though the Act of 1907 was entitled as an Amendment Act, it embodied a new and distinct scheme not in reality a modification or extension of the scheme of the 1870 Act. Perhaps the best indication of this is the presence of both schemes, still unrelated to each other, in the present Act. The period of police supervision for seven years after the service of a term of imprisonment for which s. 316 provides depends upon a prior conviction for an offence within a specified range of offences. It is imposed by the Act itself upon the subsequent conviction for an offence in the same range unless the court sentencing the accused for the subsequent offence otherwise declares. On the other hand, s. 319 like its predecessors, including the New South Wales statute, creates in the court a discretion to declare a convicted person an habitual criminal if that in fact is what in the opinion of the court he is. The section…
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
R v White [1968] HCA 19
Case
[1968] HCA 19
Decision Date
CaseChat Overview and Summary
The case of *R v White* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, White, had been found guilty of the murder of his wife, who had died from a gunshot wound. The central dispute revolved around whether the trial judge had adequately directed the jury on the issue of provocation as a defence to the murder charge.
The High Court was required to determine whether the jury's verdict was unsafe or unsatisfactory due to alleged misdirection by the trial judge concerning the defence of provocation. Specifically, the court had to consider whether the judge's charge had properly explained the elements of provocation, including the requirement that the provocation must be such as to have caused an ordinary person to lose self-control, and whether the jury had been adequately instructed on the temporal connection between the alleged provocation and the act of killing.
The High Court found that the trial judge's directions on provocation were indeed inadequate. The court reiterated the established legal principles that provocation, to be a defence, must be a question of fact for the jury to consider, and that the provocation must be of such a nature as to cause an ordinary person to lose self-control. Furthermore, the court emphasised that the act of killing must be attributable to the provocation, meaning there must be a sufficient causal link and a lack of cooling-off period. The jury's verdict was deemed unsafe and unsatisfactory because they had not been properly guided on these crucial aspects of the defence.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.