Callaghan v The Queen

The application for special leave should be granted. It should be treated as an appeal and the appeal should be allowed. The conviction should be set aside.

The verdict of the jury, while finding the appellant guilty under s. 291A, acquitted him of manslaughter. He ought not therefore to be tried again for manslaughter. But that is the crime for which he was indicted. There was no count under s. 291A. The verdict of guilty of the crime created by s. 291A was found as one allowed by s. 595 on an indictment for manslaughter. Nevertheless according to Kelly v. The King [1] it is possible for this Court to order a new trial upon a charge which, like that under s. 291A, is not made by the indictment but is one of which the prisoner may be found guilty on the indictment. Here however is the complicating circumstance that the jury's verdict ought rationally to mean that the appellant was not guilty of the requisite want of care and precaution. The appellant has served portion of the sentence imposed upon him. In all the circumstances we think that we ought not to order a new trial, but we ought simply to quash the conviction.