R v Mullen [1938] HCA 12

R v Mullen [1938] HCA 12 - HCA 1938 case summary — Zoe

[11]

Henchman (Solicitor-General for Queensland) and 7'. W. Smith, for the applicant. The Court of Criminal Appeal should not have ordered anew trial. The direction of the trial judge complied with the require- ments of Woolmington v. Director of Public Prosecutions (1). The effect of that case is that, if a defence is put forward by the accused, it is incumbent on the Crown to bring evidence to rebut it, but the defence must appear before the onus falls on the Crown to clear it away. All that the Crown has to do is to establish every ingredient of the offence alleged. It is entirely for the jury to say whether they believe the prisoner's evidence, but the jury must be told that the onus is always on the Crown to satisfy them that the prisoner is guilty of the offence charged. The trial judge sufficiently directed the jury that the onus was on the Crown to prove the prisoner's guilt (Criminal Code (Q) ), secs. 22, 31, 291, 293, 300, 301-303). The trial judge explained to the jury that accident was a defence, and that it was for them to decide whether they accepted the evidence as to accident, the burden of proof still being on the Crown. Accident is always in issue in crimes in which intent or negligence is a factor, and the Crown having proved sufficient facts from which the jury may conclude that intent was there, the defence of accident must thereupon vanish unless the prisoner brings forward further evidence to support the plea of accident. Provided the summing up covers the essentials of the case, a long dissertation on the question of the burden of proof is unnecessary (R. v. Puzzle Ahmed (2); Packett v. The King (3); Madadeo vy. The King (4)). Tf the prisoner has raised a reasonable doubt in the minds of the jury, he is to get the benefit of it. If only the killing is proved, it will not support a verdict of wilful murder. There must be some further evidence to justify such a verdict. Woolmington's Case (5) does not apply in face of the Criminal Code, secs. 24, 271, 272, 301, 303, 304.

[14]

Mack, for the respondent. Special leave to appeal should be refused. In this case the trial judge told the jury that the onus of proving accident was on the prisoner, and this is inconsistent with Woolming- ton's Case (1). The mere fact that there may have been evidence of intent in this case does not excuse the trial judge from directing the jury that the onus of proof was on the Crown. Woolmington's Case (1) decides that in every case of murder the onus of proof remains on the Crown except in the case of any statutory exceptions and in the case of insanity. If only a killing is proved, it is not presumed to be murder, and the onus is on the Crown to prove malice afore- thought. There is no onus on the prisoner in respect of accident, and that is the main question in this case. The main defence was accident, and the trial judge told the jury that the onus of proving accident was on the prisoner. This was contrary to the rule in Woolmington's Case (1). The onus is on the Crown to satisfy the jury beyond reasonable doubt that the prisoner killed the deceased and that it was not an accident. There is an onus on the Crown to prove that the act was not accidental. If the Crown proves facts from which the jury may infer intent, it is sufficient to negative accident, but the Crown must negative accident. The trial judge gave an improper direction as to manslaughter. The Crown did not prove a killing in this case and did not prove that the death was due to the voluntary act of the prisoner. The trial judge should not have told the jury that killing by the prisoner was proved beyond all reasonable doubt (Peacock v. The King (2)). The Court of Criminal Appeal should have quashed the conviction. There was no evidence on which the accused could properly have been con- victed. The evidence is just as consistent with an innocent act as it is with a felonious killing. The trial judge failed to direct the jury that provocation would reduce the killing from murder to man- slaughter (Mutual Life Insurance Co. of New York v. Moss (3); Jackman vy. The King (4)). The trial judge also failed to direct the jury on the question of circumstantial evidence (Peacock v. The King (5) ).

[33]

Thus, according to this direction, the accused could not properly be acquitted on the ground of accident unless he satisfied the jury that the killing was accidental. For the reasons already stated, such a direction appears to me to be wrong in law. It was for the Crown to establish to the satisfaction of the jury beyond reasonable doubt by direct or circumstantial evidence that the accused intended to cause the death of Brown. Therefore it was an essential part of the Crown case to negative accidental killing. In other parts of the charge the learned judge stated in clear language that the burden rested upon the Crown of proving every element essential to the offence, and that the intention specified in sec. 301 was such an element. But the parts of the charge dealing with the subjects of accident and excuse to which I have referred - may well have confused the jury. The Court of Criminal Appeal exercised its discretion by ordering a new trial. If it had exercised its discretion in the opposite direction I would not have been dis- _ posed, upon an application to this court to exercise its discretion by granting special leave to appeal, to interfere with such a decision. 1 Equally I am not disposed, as a matter of discretion, to set aside the exercise of the discretion of the Court of Criminal Appeal in - ordering a new trial. In my opinion the application for special - leave to appeal should be refused upon the ground stated. I repeat, for the purpose of avoiding possible misunderstanding, that this judgment (so far as Woolmington's Case (1) is concerned) deals only with the defence of accident, which I regard as really consisting in a denial of an essential element in the crime here charged. It does not deal with any other possible defences. Counsel for the prisoner contended that the order for a new trial was wrong and that the conviction should have been quashed on the ground that there was not sufficient evidence to establish a charge of wilful murder. Such an argument does not strictly arise upon this application by the Crown for special leave to appeal from the order actually made, where the accused is necessarily supporting that order. But the argument would be open to the accused if special leave to appeal were granted to him. As it is the practice

[48]

accord with the definition of wilful murder in the Criminal Code of Queensland, secs. 23 and 301, and, if the learned judge had said no more, the verdict must be taken as a finding of every essential element of that crime (See Ross v. The King (1) ). But the learned judge also referred. to a case known as the Fuzzle Ahmed Case (2), which, he said, laid down the basis of a charge to the jury in cases of homicide. He read certain passages from the report which laid down that the proper direction to a jury in cases of homicide should be based upon sec. 291 of the Criminal Code, which enacted that "it is unlawful to kill any person unless such killing is authorized or justified or excused by law." He had previously explained that an accidental killing constituted an excuse. He continued reading from the report of the Ahmed Case (3) as follows : - '* The jury should then be told that the burden of proving authority, justification or excuse rests in each case on the person alleging the existence of such authority, justification, or excuse. In the event of any defence based on authority to kill or on justification or excuse for killing having been raised for the accused, or if it appears to him" (the judge) " that any such defence is suggested or might possibly have been raised on the evidence, whether for the Crown or for the accused, the judge should then proceed to explain to the jury the provisions of the Code relevant to such defence or possible defence." These further obser- vations from the Ahmed Case (2) were also brought to the attention of the jury: If the jury "do not consider that any defence of authority, justification or excuse is established to their reasonable satisfaction," then it would be for them " to draw such inferences as they consider that the facts establish as to the presence of such an intention to kill as is necessary to constitute wilful murder." It is this part of the charge that the Court of Criminal Appeal held, upon the authority of Woolmington v. Director of Public Prosecutions (4), amounted to a misdirection. The principle of Woolmington's Case (4) that upon a charge of wilful murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner is as applicable to the crime of wilful murder

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)