For the reasons about to be given, the Court is unanimously of opinion that the Full Court was wrong in dismissing the appeal, and that the conviction cannot be allowed to stand. The charge of the learned Judge on the subject of manslaughter was not, in our opinion, such as the circumstances required. He confined his observations to the question of wilful neglect, though that may not have been the default contemplated by the jury when the question was asked, and with respect to that neglect he omitted to instruct the jury as to matters relevant to the determination of the question whether the accused was under a duty of care towards the deceased, nor did he point out that unless such a duty existed no question of neglect could arise. He failed to specify the degree of negligence required to constitute neglect involving criminal responsibility. He told the jury that, if they thought the accused brought about the woman's death by neglect, they would then, he thought, be entitled to bring in a verdict of manslaughter, and his words were certainly capable of being understood by the jury as meaning that, if they thought the accused ought to have provided the deceased with proper attendance, medical or otherwise, and neglected to do so, they might find a verdict of manslaughter.

It will be remembered that when the jury first came back into Court the foreman asked this question: "Supposing that her death was caused by the accused and his action was not wilful, would that be a verdict against him?" And he then stated that by this he meant if the accused caused her death "accidentally and not intentionally or deliberately." This question having been asked, we think there should have been a further direction from the learned Judge, because if the jury were of opinion that the accused had caused the death they might have found him guilty of manslaughter if he had killed the deceased unlawfully and feloniously though not intentionally or deliberately. Moreover, it is clear that in the circumstances the accused was afforded no proper opportunity of defending himself against a charge of manslaughter. The prosecution was conducted throughout, until the jury were brought into Court after six hours' retirement, on the footing that the offence with which the accused was charged was murder and that alone. The charge of manslaughter was sprung on the accused in the absence, through illness, of his counsel, at a time when he had no opportunity of putting before the jury any defence he might have had to that charge as distinct from the charge of murder on which he was presented. In these circumstances it is impossible for us to hold that the Crown has established that no miscarriage of justice has actually occurred, and it is our duty to allow the appeal and to quash the conviction. In this aspect of the case it is unnecessary to consider whether the Full Court was right in deciding that there was evidence (1) that the accused was under a duty of care towards the deceased, (2) that he neglected that duty, and (3) that such neglect was the cause of her death or that, if there had been no such neglect, life would have been prolonged; and, having regard to the order about to be made, we all agree in thinking that it is undesirable that we should examine in detail the evidence given at the trial. But the fact that we refrain from doing so must not be taken as indicating any opinion whether there was or was not evidence fit to go to the jury on any or all of these issues.