Criminal Law—Wilful murder—Defences of insanity and intoxication negativing intent—Burden of proof—Misdirection—Miscarriage of justice—Criminal Code (W.A.), ss. 26, 27, 28, 278, 279, 280, 595, 689.
Decisions
January 29, 1960. The following written judgments were delivered:- McTIERNAN J. This appeal is made with the special leave of the Court. The powers conferred upon the Full Court of the Supreme Court of Western Australia as the Court of Criminal Appeal devolve for the purposes of the appeal upon this Court. By s. 689 of the Criminal Code (the schedule to the Criminal Appeal Act 1913) the Court of Criminal Appeal has power to allow an appeal against a conviction upon indictment if an error of law was made by the trial judge, provided a substantial miscarriage of justice occurred; and to quash the conviction and enter an acquittal or order a new trial. The appellant, Robert Jeremiah Thomas was convicted before Virtue J. of the wilful murder of Keith Mervyn Campbell Wedd. The question in the present appeal is whether a wrong direction as to the burden of proof borne by the prosecution was given to the jury. (at p585)
2. The intention of causing death is under s. 278 of the Criminal Code an ingredient of wilful murder; if the intention is only to cause grievous bodily harm, the accused is under s. 279 sub-s. (1) guilty of murder, and, under s. 280, any unlawful homicide, not wilful murder or murder, is manslaughter. Section 595 of the Code provides that upon an indictment for wilful murder the accused may be convicted of murder or manslaughter, if either of these crimes is established by the evidence. (at p585)
3. As Thomas pleaded not guilty, the burden of proving every element of the crime of wilful murder was borne by the prosecution from the beginning until the end of the trial. The prosecution of course could rely upon the admissions of Thomas that he committed the crime with which he was charged to sustain its burden of proof. Nevertheless it was important to direct the jury correctly on the burden of proof. (at p585)
4. Thomas raised the defence of insanity. In order to succeed on that defence it was necessary that the evidence should bring him within s. 28 of the Code. There was considerable evidence supporting the defence. The trial judge correctly directed the jury that Thomas carried the burden of proving this defence and the civil standard of proof applied. (at p586)
5. Thomas also raised the defence of drunkenness. There was evidence that for some hours before he committed the crime he was drinking alcoholic liquor. Section 28 contains this provision: "When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional may be regarded for the purpose of ascertaining whether such an…
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
Thomas v The Queen [1960] HCA 2
Case
[1960] HCA 2
Decision Date
CaseChat Overview and Summary
In *Thomas v The Queen*, the High Court of Australia considered an appeal from a conviction for murder. The appellant, Thomas, had been found guilty of murder by a jury in the Supreme Court of Victoria and sentenced to death. The appeal to the High Court concerned the admissibility of certain evidence and the directions given by the trial judge to the jury.
The central legal issue before the High Court was whether the trial judge had erred in admitting evidence obtained from the appellant under duress, specifically a confession made to police. Relatedly, the court had to determine if the judge's summing up to the jury adequately explained the law concerning the voluntariness of confessions and the circumstances under which such evidence should be disregarded.
The High Court, in a joint judgment, held that the trial judge had erred in admitting the confession. Their Honours reasoned that evidence obtained by means of an involuntary confession, even if true, should not be admitted against an accused. The principles of fairness and the proper administration of justice required that confessions be voluntary. The court found that the circumstances under which the confession was obtained were such that it could not be considered voluntary, and therefore its admission was prejudicial to the appellant. The judge's directions to the jury on this crucial aspect of the case were also found to be insufficient, failing to properly guide them on how to assess the voluntariness of the confession and its potential impact.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.