Murray v The Queen [2002] HCA 26

HIGH COURT OF AUSTRALIA

GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

WILLIAM JOHN MURRAY APPELLANT

AND

THE QUEEN RESPONDENT

Murray v The Queen

[2002] HCA 26

20 June 2002

B11/2002

ORDER

1. Appeal allowed. 2. Set aside the order of the Court of Appeal of Queensland dated 24 August 1999 and, in lieu thereof, order that:

(a) the appellant's appeal to that Court be allowed;

(b) the appellant's conviction be quashed and a new trial be had.

On appeal from the Supreme Court of Queensland

Representation:

A J Rafter for the appellant (instructed by Dearden Lawyers)

L J Clare for the respondent (instructed by the Director of Public Prosecutions (Queensland))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Murray v The Queen

Criminal law – Homicide – Unlawful killing – Murder – Deceased died from gun shot wounds to chest – Whether shooting was an unwilled act or an event occurring by accident – What is "the act causing death" – Whether trial judge erred in failing to direct jury about unwilled acts – Whether it is for the jury to decide what is "the act causing death" – Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered.

Onus of proof – Whether the trial judge erred in directions to jury about onus of proof – Whether trial judge's direction to jury was apt to mislead the jury about the decision which was to be made.

Words and phrases – "act" – "event" – "accident".

The Criminal Code (Q), s 23.

1. GAUDRON J. The facts are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for holding that the appeal should be allowed on the sole ground that the trial judge directed the jury in a manner that mis-stated the onus of proof. 2. According to the evidence-in-chief of the appellant concerning the events leading to the death of Tony Celap, the deceased became verbally abusive whereupon he, the appellant, took a loaded shotgun from under his bed and approached the deceased with the gun in his right hand. As the deceased started to rise from a chair, the appellant lifted the gun to waist height, the deceased's arm shot out and something hit the appellant on the head. The gun then went off. He said that he took the gun into the room where the deceased was sitting solely with the intention of frightening him so that he would leave the house. 3. In cross-examination, the appellant said that he might have cocked the gun but could not remember doing so. He admitted that he pointed the gun at the deceased and said that his finger "would have been somewhere around the trigger guard" and possibly on the trigger. He denied that he deliberately pulled the trigger. 4. The prosecution case was that the appellant discharged the gun intending to cause death or grievous bodily harm. However, the evidence of the appellant left open two possibilities: (1) that the gun discharged without any pressure being applied to the trigger; and (2) that pressure was applied to the trigger by reflex or automatic motor action when the deceased's arm shot out or when the appellant was struck on the head. 5. The trial judge instructed the jury with respect to accident, the subject of s 23(1)(b) of the Criminal Code (Q) ("the Code"), but did not instruct the jury with respect to unwilled act, the subject of s 23(1)(a). The first ground of this appeal raises the question whether directions should also have been given on that subject. 6. Section 23(1) of the Code provides: