2.Set aside the order of the Court of Criminal Appeal of Western Australia dated 15 March 2001 and, in lieu thereof, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed and a new trial be had.
On appeal from the Supreme Court of Western Australia
Representation:
A G Braddock SC with R W Richardson for the appellant (instructed by Aboriginal Legal Services of Western Australia)
K P Bates with S A Vandongen for the respondent (instructed by the Director of Public Prosecutions (Western Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ugle v The Queen
Criminal law – Homicide – Unlawful killing – Murder – Deceased died from knife wound to chest – Whether stabbing was an unwilled act – Whether trial judge erred in failing to direct jury about unwilled acts – Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered – Whether "event" arguably occurred "by accident".
Words and phrases – "accident" – "act" – "event" – "unwilled act".
The Criminal Code (WA), s 23.
GAUDRON J. The facts, the issues presented at the appellant's trial and the relevant provisions of The Criminal Code (WA) are set out in the joint judgment of Gummow and Hayne JJ and need not be repeated. And subject to what appears below, I agree with their Honours, for the reasons they give, that this appeal should be allowed.
On the question of willed act, a majority of the Court of Criminal Appeal of Western Australia (Parker and Wheeler JJ, Wallwork J dissenting) took the view that the trial judge "effectively ... resolve[d] the issue whether or not on the [appellant's] account his act in using the knife to wound the deceased occurred independently of the exercise of his will in the [appellant's] favour, by directing the jury to return verdicts of not guilty if they accepted [his] account or were left in reasonable doubt by it"[1]. Were I of the view that the jury must have understood the trial judge's direction in that way, I would be of the further view that there was no miscarriage of justice and that the appeal should be dismissed. However, I do not think that the trial judge's directions can be so understood.
In his summing up, the trial judge summarised the appellant's version of events and said that the defence case was that "[the appellant] had no choice but to defend himself". His Honour instructed the jury that, if that were so, they "would be entitled to take the view ...…
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
Ugle v The Queen [2002] HCA 25
Case
[2002] HCA 25
Decision Date
CaseChat Overview and Summary
In *Ugle v The Queen*, the High Court of Australia considered an appeal by the appellant, Mr Ugle, against his conviction for murder. The deceased had died from a knife wound to the chest, and it was not disputed that the appellant was holding the knife at the time of the injury. The central issue on appeal was whether the trial judge had erred by failing to direct the jury on the concept of an "unwilled act" or an "event occurring by accident" in the context of the appellant's defence.
The High Court was required to determine whether the trial judge's omission to direct the jury on unwilled acts and accidental events constituted a wrong decision on a question of law or a substantial miscarriage of justice, thereby warranting a new trial. This involved considering the appellant's evidence, which suggested he had raised the knife defensively to ward off an attack by the deceased with a cricket bat, and that he did not realise he had stabbed the deceased at that time. The Court also had to assess whether the appellant's evidence, when viewed in light of the prosecution's burden of proof, could have supported a finding that the stabbing was not a deliberate act.
The Court reasoned that the appellant's evidence, particularly his assertion that he raised his hand to fend off the deceased and did not realise he had stabbed him, was capable of supporting a conclusion that the stabbing was an unwilled act or an event that occurred by accident. The trial judge's failure to direct the jury on these possibilities meant that the jury may not have considered whether the prosecution had proven beyond reasonable doubt that the act of stabbing was willed. Given the potential for a substantial miscarriage of justice, the High Court allowed the appeal.
Consequently, the High Court ordered that the appeal be allowed, the conviction be quashed, and a new trial be had.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of Western Australia dated 15 March 2001 and, in lieu thereof, order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction be quashed and a new trial be had.
Background
Background to the litigation
The issue in the appeal to this Court is whether the Court of Criminal Appeal should have held that, the trial judge having not directed the jury about unwilled acts and events occurring by accident, there had been a wrong decision of a question of law or a miscarriage of justice[5]. For the reasons that follow, the appeal should be allowed, the order of the Court of Criminal Appeal set aside and in lieu there should be orders allowing the appeal to that Court and directing that a new trial be had.[5]s 689(1).The facts The deceased died from a knife wound to the chest. There was no dispute at trial that the appellant was holding the knife when the deceased sustained that wound. On the evening that the death occurred the appellant's co‑accused, Mr Haworth, and a companion had gone to a block of flats at which the deceased lived. There was a disturbance and Mr Haworth said at the trial that the deceased, armed with a cricket bat, had chased after him and his companion. According to Mr Haworth, the deceased struck him with the bat. Mr Haworth returned to a friend's house nearby where he, the appellant and others had spent much of the day. A short time later, Mr Haworth and the appellant went back to the vicinity of the flats. The appellant took with him a kitchen knife he had picked up from the kitchen of the house at which he had spent the day. Mr Haworth said at the trial that he had armed himself with a brick and, perhaps, later a piece of wood. They encountered the deceased who was, so they said, still armed with the cricket bat. The appellant's evidence in chief was that the deceased attacked and struck him with the cricket bat, causing the appellant to lose balance. As the deceased went to hit him again he put his hand up to push the deceased off. Having done so, and seeing the deceased about to strike him again, the appellant said he ran away. On returning to the friend's house he washed the knife because it had blood on it and he washed his hands. Neither in evidence in chief nor in cross‑examination did he say when he first saw blood on the knife. In cross‑examination the appellant reiterated that he had sought to fend off the deceased, and said that he did not realise that he stabbed him at that time. He denied using the knife to stab the deceased. As was rightly recognised in the Court of Criminal Appeal[6], this evidence was open to at least three constructions. We would, however, state those different constructions of the evidence in rather different terms from those used in the Court of Criminal Appeal, if only to recognise the burden of proof which the prosecution bore.[6]Ugle v The Queen [2000] WASCA 381 at [63] per Parker J. First, it was open to the jury to conclude that, to fend off a blow by the deceased, the appellant had raised the arm and the hand in which he was carrying the knife and had pushed or hit the deceased, but that the prosecution had not established beyond reasonable doubt that the appellant had consciously used the knife to attack or wound the deceased. Secondly, it was open to the jury to conclude that, despite what the appellant said, the prosecution had not established beyond reasonable doubt that the appellant had not acted in self‑defence. Thirdly, it was open to the jury to conclude that the prosecution had established that the appellant had deliberately attacked the deceased with the knife. In that last event the question would then have been whether the deceased was proved to have done so intending to kill (and thus was guilty of wilful murder) or had done so intending only to do grievous bodily harm (and thus was not guilty of wilful murder but guilty of murder).The trial judge's direction