Gammage v The Queen

The applicant for special leave to appeal was convicted of the murder of one Margaret Mitchell Smith. When the trial began counsel for the defence stated, in the presence of the jury, that it was not disputed that the applicant had killed the deceased woman and that he was relying upon a defence of provocation. At the close of the evidence the learned trial judge ruled that there was insufficient evidence to support that defence and no complaint is now made about that ruling. In the course of his charge to the jury the learned trial judge said:

There is one final matter. You have been told by counsel for the accused that you have the right to bring in a verdict here of not guilty of murder but guilty of manslaughter. It is true that you have that legal right but, gentlemen, the only justification for you bringing in a verdict of manslaughter would be if you were not satisfied by the Crown to the extent that I have indicated that the accused intended to kill this women or intended to inflict grievous bodily harm, and if you rejected the Crown case of it coming within the other two branches of the definition (reckless indifference to human life or whilst or during or immediately after the commission of an act obviously dangerous to human life) what you must not do is this, if you are satisfied it is murder then it is your duty to bring in a verdict of murder. You must not, as it were, say to yourselves, "We are satisfied it is murder but we have the right to bring in manslaughter and although we think it is murder we are going to be merciful to this man and find him guilty of the lesser offence". If you do that, you are being false to the oath you took when you became jurors in this case; that oath was to well and truly try this case and a true verdict give according to the evidence, and such a verdict as that given out of motives of mercy, even if you believe him guilty of murder, would not be the true verdict. On appeal to the Court of Criminal Appeal, their Honours held that the learned trial judge had not fallen into error in giving that direction and with that I agree. It has been submitted, however, that the decisions in Reg. v. Stone [1] ; Reg. v. Pratt [1] and Reg. v. Coghill [2] show that the direction was wrong and that the learned trial judge should not have told the jury that they would be acting contrary to their oaths if, notwithstanding that they were satisfied that all the elements of murder were proved, they returned a "merciful" verdict of not guilty of murder but guilty of manslaughter. If those cases do lay down any such rule, I think, with respect, that they were wrongly decided. In Packett v. The King [3] Starke J. said: In my opinion it is no duty of the judge to direct a jury that they may find a verdict contrary to the evidence or according to their own caprice It would be wholly destructive of the administration of criminal justice if it were thought that a judge was bound to direct a jury that it could act without regard to the law and the facts proved before them. [1] No doubt it is within the province of a jury in every case in which murder is charged to return a verdict of not guilty of murder but guilty of manslaughter and it is equally clear that they may insist on doing so even though it may appear to the trial judge or to a Court of Appeal that such a verdict is not a true verdict according to the evidence. But this does not mean that a direction such as was given in the present case was wrong. What the learned trial judge did was to tell the jury that while it was competent for them to acquit of murder and convict of manslaughter, they would not be acting in accordance with their oaths if they took that course upon compassionate grounds. In Beavan v. The Queen [1] Dixon C.J., McTiernan, Webb, Fullagar and Taylor JJ. in their joint judgment said [2] : Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder, and counsel for the prisoner has not suggested to the jury the possibility of their returning a verdict of manslaughter, the judge is under no duty to inform the jury that it is within their power to find a verdict of manslaughter, unless the jury ask a question upon the subject. In that case it will usually be incumbent upon the judge to inform them that upon an indictment for murder it is within the province of a jury to find a verdict of manslaughter; but it is proper for him to add an expression of his opinion that in no view of the evidence which the jury might reasonably take are findings of fact open that fall short of murder but amount to manslaughter.