Criminal Law (Q.)—Appeal—Court of Criminal Appeal—Summary conviction—Aggravated assault—Whether indictable offence or simple offence—Criminal Code (Q.), ss. 3, 335*, 343*, 343A*, 344*, 345*, 659, 668D**, 673**—Children's Services Act, 1965 (Q.), s. 29 (7) (c)***. * The relevant provisions of ss. 335, 343, 343A, 344 and 345 of the Criminal Code (Q.) are set out at pp. 436-437, post. ** Sections 668D and 673 are set out at pp. 434-435, post. *** Section 29 (7) (c) of the Children's Services Act, 1965 (Q.) is set out at p. 434, post.
Decisions
June 21. The following written judgments were delivered: - BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment of my brother Gibbs. I agree with his conclusion and the reasons he gives for reaching it. (at p433)
2. I should like to add on my own account that the legislative scheme of the sections set out in the reasons of my brother Gibbs is that certain indictable offences may be tried summarily with specified penal consequences. The manner of trial does not alter the relevant statutory nature of the offence. If the offence be a common assault, it remains indictable because a misdemeanour though by the statute allowed to be tried summarily. The penal consequence of conviction will depend on the manner of trial. (at p433)
3. When s. 344 of the Criminal Code (Q.) provides that punishment appropriate to an assault in circumstances of aggravation shall not be inflicted "unless" the defendant "has been charged therewith", it is quite clearly, in my opinion, not creating a new and different offence from the misdemeanour of common assault. The aggravation affects the possible penalty but does not alter the statutory nature of the offence. The presence of the word "charged" in s. 344 means no more, in my opinion, than that the defendant, at a time when he has an opportunity of denying or dealing with the alleged circumstances of aggravation, must have been made aware of the prosecutor's intention to establish such circumstances of aggravation: and the defendant must be given notice of the particular circumstance or circumstances of aggravation alleged. Naturally, the usual place for any such information to be found is in the document charging the common assault, i.e. the complaint or information. But the presence there of the particulars of circumstances of aggravation does not alter the statutory nature of the offence. (at p433)
4. Section 29 (7) (c) of the Children's Services Act, 1965 (Q.), as amended, and s. 659 of the Criminal Code are, in my opinion, addressed to completely different matters, the latter section, in my opinion, having no impact on the former. (at p433)
5. The purpose of s. 29 (7) (c) is to give a right of appeal because of the relevant statutory nature of the offence with which the…
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
Ross v The Queen [1979] HCA 29
Case
[1979] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Ross, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently sentenced to imprisonment for life. The appeal to the High Court concerned the interpretation and application of the law relating to provocation as a defence to murder.
The central legal issue before the High Court was whether the trial judge had adequately directed the jury on the defence of provocation. Specifically, the court had to determine if the jury had been properly instructed on the objective and subjective elements of provocation, and whether the judge’s summing up had created a real danger that the jury might have misunderstood the law, leading to a miscarriage of justice.
The High Court, in allowing the appeal, held that the trial judge’s directions on provocation were insufficient. The court reiterated the established principles that provocation requires both a subjective element (that the accused was in fact provoked) and an objective element (that a reasonable person in the position of the accused might have reacted in the same or a similar way). The judges found that the summing up had not sufficiently emphasised the objective element, potentially leading the jury to believe that if they were satisfied the accused was provoked, that would be sufficient for the defence to succeed, without adequately considering whether a reasonable person would have been provoked.
Consequently, the High Court quashed the conviction for murder and ordered a new trial.