Griffiths v The Queen

Griffiths v The Queen - [1994] HCA 55 - HCA 1994 case summary — Zoe

[22]

With respect, the ultimate onus of proving all elements of the offence, including either the voluntary or criminally negligent firing of the fatal bullet, rested upon the Crown and, if the evidence available to the Crown did not discharge the onus, the appellant was entitled to be acquitted. That is the principle clearly laid down in Woolmington v DPP. [9] In Woolmington, a case of homicide by shooting, the appellant had given a version of the confrontation between himself and his wife, the deceased. He said the firing of the gun was an accident in that whilst he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off. [10] It was in reference to this evidence that the well-known statement was made about the golden thread of English criminal law and Viscount Sankey LC said: [11] When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. His Lordship went on to explain: If the jury are either satisfied with [the accused person's] explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. [Emphasis added.] In this passage the common law term "unintentional" means "involuntary" or "unwilled" and those were the terms preferred by Barwick CJ in Ryan . [12] In that case, his Honour said: by whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused's will to act cannot, in my opinion, be made the source of criminal responsibility in him. It is impossible to suppose that the majority in the Court of Appeal did not appreciate where the ultimate onus lay in this case. Their Honours must have had in mind the common situation where the evidence simply reveals that the alleged offender, being presumably of sound mind, consciously did the act which is an element in the offence charged. Commonly, evidence of that kind is sufficient to discharge the Crown's ultimate onus of proof [13] unless the alleged offender adduces or is able to point to some evidence which suggests that the doing of the act was involuntary. In the absence of any such evidence, it is frequently unnecessary and inappropriate for the trial judge to give a specific direction about voluntariness. That is the position when, in the circumstances revealed by the evidence, human experience would regard the act done as having been done under the conscious control of the doer. 1. [1935] AC 462; (1935) 25 Cr App R 72, applied to the element of accident under the Criminal Code Qld in Mullen. 2. [1935] AC 462 at 472; (1935) 25 Cr App R 72 at 85. 3. ibid (at 482; 95-96). 4. (1967) 121 CLR 205 at 213. 5. Bratty v A-G (Northern Ireland) [1963] AC 386 at 407, 413; Falconer (1990) 171 CLR 30 at 40-41, 43, 61, 68, 83; 50 A Crim R 244 at 249-251, 252, 265-266, 271-272, 283.

[33]

The jury's verdict makes plain that they accepted, as they were entitled to do, the uncontradicted evidence led by the Crown to the effect that, on two separate occasions, the appellant had admitted, or rather asserted, that he had "killed" or "shot" the deceased. In the absence of any contrary or qualifying evidence, it was open to the jury to find that, in making that admission or assertion, the appellant had been telling the truth. Clearly, the jury made that finding. On the basis of it, the essential facts proved against the appellant were as follows. The appellant shot the deceased boy in the back of the head. The shooting took place in a deserted part of the Glasshouse Mountains area of Queensland. After the shooting, the appellant left the deceased either dead or dying. There was nothing at all in the evidence to suggest that the appellant took any step, either openly or anonymously, to procure aid or attention for the victim or for his corpse. To the contrary, the appellant subsequently fabricated an account of a phone conversation with the deceased which would, if accepted, be calculated to conceal his death. After the deceased's body was finally discovered, the appellant untruthfully denied any involvement in the deceased's death when questioned by the police. Subject to one qualification, the appellant has never proffered any explanation of how he had come to shoot the deceased in the back of the head. That sole qualification is that, in one of the two conversations in which the appellant asserted that he had "killed" or "shot or killed" the deceased, he claimed that it was "an accident" and that he "didn't mean to do it". On the other hand, in the other conversation, he threatened the person to whom the assertion that he had "killed" the deceased was made that he would "do the same to" her if she told "anybody". In all the circumstances, it was plainly open to the jury to conclude that, notwithstanding the age of the appellant, [19] the appellant's callous and dishonest actions after he had shot his "best friend" in the back of the head gave rise to the inference that the shooting had, at the very least, been the result of carelessness of the kind which constituted a breach of s 289 of the Code. Indeed, the directions of the learned trial judge and the absence of any request on behalf of the appellant for further or different directions would seem to indicate that it was common ground at the trial that the issue between the Crown and the appellant was whether the appellant had in fact killed the deceased. Nonetheless, it was necessary for the learned trial judge to direct the jury about the essential ingredients of manslaughter pursuant to s 289. [20]

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Judgment (35 paragraphs)

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Cases Cited (8)

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