Quartermaine v The Queen

Quartermaine v The Queen - [1980] HCA 29 - HCA 1980 case summary — Zoe

[5]

is guilty of a crime. To give meaning to s. 283 (1) it is necessary to read into it the description of "attempt" contained in s. 4 of the Code. The result is that if in the present case the charge had been laid under s. 283 (1) it would have been incumbent on the Crown to prove that the applicant intended to kill Wynne, that he began to put his intention into execution by means adapted to its fulfilment (namely by discharging the firearm) and manifested his intention by an overt act (which also would have been constituted by discharging the firearm). The learned trial judge directed the jury that these were the elements of the offence that had to be proved before a verdict of guilty could be returned. On a charge under s. 283 (2) also the Crown had to prove the first mentioned of those elements, that the applicant had an intention to kill Wynne. The remaining element however, was different. It had to be proved that the applicant did an act of such a nature as to be likely to endanger human life. The act relied on of course was the act of discharging the firearm - the same act that had to be proved before the applicant could be convicted under s. 283 (1). However, the mere discharge of a firearm would not itself be enough. An offence against s. 283 (2) would only be committed if the discharge of the firearm was in the circumstances an act of such a nature as to be likely to endanger human life. Whether the discharge of a firearm would be likely to endanger human life would depend on all the circumstances: the direction in which the firearm was aimed, the distance which the person whose life was said to be endangered was from the firearm, whether that person was stationary or in motion and, if moving, in what manner and direction, the calibre and efficiency of the firearm, and so on. The learned judges of the Court of Criminal Appeal held that the direction given by the learned trial judge in relation to s. 283 (1) was wrong because it was irrelevant, but did not attach importance to the omission to tell the jury that the Crown had to prove that the applicant did an act which was of such a nature as to be likely to endanger human life. They apparently considered that it would be unreasonable in the circumstances of the present case to hold that the discharge of the firearm was not likely to endanger human life. Indeed they said that this was never really in dispute, but if that is so it may be explained by the obvious circumstance that no one thought it relevant.

[10]

It is very well established that the proviso does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. In the present case the relevant law was not explained to the jury. It was within the jury's province to decide whether they were satisfied that the applicant did an act of such a nature as to be likely to endanger human life. That question was never left to them. It is true that the jury must be taken to have found that the applicant discharged the rifle, and probably that he discharged it at Wynne. It was but a short step to hold that in so doing he did an act of such a nature as to be likely to endanger human life, and the evidence would clearly have supported a finding to that effect. Indeed, there is much to be said for the view that the jury in the present case could not reasonably have made any other finding. Ordinarily, when there has been a misdirection of law, the proviso to s. 689 will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J., who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established "there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that "there had been a serious departure from the essential requirements of the law" ". The Court of Criminal Appeal was right in taking that view of the law, but, in my opinion, wrong in considering that there was no substantial miscarriage of justice in the present case. In Andrews v. The Queen [2] this Court held that the proviso should not be applied where the accused was not in reality tried for the offences for which he was indicted [3] . That case was similar to the present, in that the summing up was more appropriate to a different charge, and the jury were not instructed as to the essential elements of the charge in fact laid. Another case, in which the proviso was not applied because the errors were considered to be funadmental, was Reg. v. Hildebrandt [4] . The jury in the present case were never asked to consider whether the applicant committed an offence against s. 283 (2) and did not find that the elements of an offence against that sub-section had been proved. When a jury has returned a verdict of guilty of a particular crime without having considered whether that crime was committed, the verdict cannot, in my opinion, be sustained by holding that the jury would or should have returned the same verdict if they had considered the proper questions. That would substitute trial by judge for trial by jury. 1. (1955) 93 C.L.R. 493, at p. 514. 2. (1968) 126 C.L.R. 198. 3. (1968) 126 C.L.R., at pp. 207-210. 4. (1963) 81 W.N. (Pt 1) (N.S.W.) 143, at p. 148.

[86]

A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of grave import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury. Counsel for the applicant argued that it had this effect in the present case, because it had the effect of withdrawing from the jury the express injunctions he had given earlier in the charge that they must be satisfied beyond a reasonable doubt that the applicant had shot at Wynne. That is an argument that commands respect, yet we are not persuaded that it leads to a decision in favour of the applicant. There are three reasons for our conclusion. In the first place, we do not think the re-direction can reasonably be supposed to diminish the impact of the clear and emphatic directions with which the trial judge repeatedly charged the jury to be satisfied that the applicant shot at Wynne. We have already cited one of those passages. The very irrelevance and consequent obscurity of the direction contributes to a limitation of its effect. There is nothing in the question to suggest any doubt in the mind of the jury as to whether Wynne was present among the invading group, and we do not think that the answer given by the judge could be said to have introduced any such doubt. The important factor underlying this consideration must be the fact admitted on all sides that Wynne was present. The second reason is that in our opinion the jury's question called for a simple answer in the affirmative, and the verdict of the jury is wholly and only consistent with the application of such a proposition to the facts of the case. The third reason is that the failure of the applicant to raise this point specifically as a ground of appeal to the Court of Criminal Appeal tends to confirm a conclusion that the misdirection when placed in a proper perspective did not cause a substantial miscarriage.

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Before

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Judgment (87 paragraphs)

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Cases Cited (1)