BRIAN RAYMOND TURNER V. THE QUEEN

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Oral Judgment delivered at...

iq

BRIAN RAYMOND TURNER

Application for special 'leave refused.

THE

—

BRIAN RAYMOND TURNER

ve

JUDGMENT : BARWICK -C.J. (ORAL) :

BRIAN RAYMOND TURNER ~

Ve

The Court of Criminal Appeal in this case refused merely to quash the applicant's conviction for murder upon the ground that there was no evidence on which the jury could conclude that the fracture of the deceased's hip occurred on the night of the assault on him by the applicant in the course of or as the direct result of that assault. But the Court aid quash the conviction and order a new trial because the trial judge had not given a direction as to the possibility of a verdict of manslaughter in conformity with the Supreme Court's decision in The King v. Stone 84 Weekly Notes, Part I, p. 361.

Since the decision of this case by the Court of Criminal Appeal, this Court has decided Gamage v. The Queen at present reported in 44 Australian Law Journal Reports pe 36. ;

I have considered the trial judge's summing-up from the point of view as expressed by this Court in Gamage v. The Queen (supra) and I am of opinion that what his Honour said at p.97, lines 1 to 13 of the transcript in this case:

"Gentlemen, in every charge of murder there ie an unexpressed alternative charge of manslaughter available to you. It is not there on the charge but the law says it is' unexpressed, and that means this - that you

~ are given the right by law, if you are not *, " =". satisfied that the act causing the death amounted_te—murder but that it did amount

to manslaughter, to find the accused not~ — ot

guilty of murder but guilty of manslaughter.

That is your right and it is given to you

by the law. But you should not make such -

a finding by way of compromise or by way of

sympathy or, for example, in this case,