Constitutional Law—States—Boundary between New South Wales and Victoria—Boundary fixed by Imperial Statute—" Water-course" of River Murray—13 &14 Vict. c. 59—18 &19 Vict. c. 54 s. V. Criminal Law—Murder—Locus of the crime—Act causing death committed on southern bank of River Murray above actual water level—Victim within New South Wales—Whether offence committed in Victoria.
Decisions
May 1. The following written judgments were delivered:- BARWICK C.J. I have had the advantage in this appeal of reading the reasons for judgment prepared by my brother Stephen. I agree with his conclusion that the northern boundary of Victoria is the top of the southern bank of the River Murray. I agree substantially with the reasons my brother gives for that conclusion. My brother's informative survey of colonial history affords no reason for reaching any other conclusion. On the contrary, in my opinion, it aids that conclusion. (at p311)
2. The delineation, for electoral reasons, of the Port Phillip district of the colony of New South Wales effected by 5 &6 Vict. c. 76 (1842) did not involve any alienation of territory. Consequently, when in 1850 a separation from the colony of New South Wales of what was to become the colony of Victoria was effected, the northern boundary of the new colony was fixed so far as it referred to the River Murray by reference to the course of that river. This was capable of being regarded as the southern bank of the river or the middle line of the river. It could scarce have been regarded as the water's edge on the river as it might be from time to time. I agree with what my brother Stephen has said as to the decision of the Supreme Court of Victoria sitting as a court of criminal appeal in this case on the relationship of the water to the inter-colonial boundary. None have suggested, nor could it properly be maintained, that by reference to "the Course of that River" (the Murray River), the indication of the northern bank of the river was intended as the inter-colonial boundary. (at p312)
3. I would have thought myself that, bearing in mind the earlier delineation of the Port Phillip district, the specification of the course of the river as the northern boundary of the new colony pointed towards the adoption of the southern bank of the river as that boundary. But, as my brother recites, the administration of inter-colonial customs evidently gave rise to doubts and difficulties. Those doubts were intended to be laid to rest by the Act of 1855, 18 &19 Vict. c. 54. This Imperial statute declared "that the whole Watercourse of the said River Murray" was within the colony of New South Wales. To my mind, bearing in mind the antecedent historical events, beginning with the erection of the Port Phillip district of the colony of…
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
Ward v The Queen [1980] HCA 11
Case
[1980] HCA 11
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Ward, against his conviction for murder. The prosecution alleged that Ward had intentionally caused the death of the deceased. The central dispute revolved around the applicant's mental state at the time of the alleged offence and whether it negated the necessary intent for murder.
The primary legal issue before the Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the Court had to determine whether the evidence presented at trial was capable of supporting a finding that the applicant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter. A related issue concerned the proper application of the legal test for provocation as established in previous High Court decisions.
The Court analysed the evidence concerning the events leading up to the deceased's death, including the nature of the deceased's conduct towards the applicant and the applicant's reaction. The judges considered the elements of provocation, namely whether the deceased's conduct was such as to cause an ordinary person to lose self-control, and whether the applicant did in fact lose self-control. The Court affirmed that provocation is a question of fact for the jury, and that a judge must direct the jury on the defence if there is any evidence, however slight, upon which a jury might find provocation. The Court found that the trial judge's directions on provocation were insufficient, as they did not adequately explain the objective element of the defence and the jury's role in assessing it.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial on the charge of manslaughter.