R v Lee [1950] HCA 25

High Court of Australia Latham C.J. McTiernan Webb, Fullagar and Kitto JJ. R v Lee [1950] HCA 25

ORDER Special leave to appeal granted in each case. Appeals allowed. Order of Full Court of Supreme Court discharged. Convictions and sentences restored.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 23 Latham C.J., McTiernan Webb, Fullagar and Kitto JJ.

Jean Lee, Robert David Clayton and Norman Andrews were, on 20th March 1950, presented before Gavan Duffy J. and a jury on a charge of having murdered a man named Kent. The jury convicted each of the accused and they were sentenced to death. They applied for leave to appeal to the Full Court of Victoria under Part V. of the Crimes Act 1928 Vict. and on 19th May 1950 that court gave leave to appeal, allowed the appeal, quashed the convictions and ordered that a new trial of the three accused be had. The court consisted of O'Bryan, Barry and Smith JJ., and the decision was that of the majority of the court, O'Bryan J. dissenting. The Crown thereupon moved under s. 35 (1) (b) of the Judiciary Act 1903-1948 for special leave to appeal to this Court. It is clear that special leave should be granted to the Crown only in very exceptional circumstances. However, it appeared at an early stage that the case raised questions of great public importance on which there were substantial differences in point of view and in opinion between Gavan Duffy J. and O'Bryan J. on the one hand and Barry J. and Smith J. on the other hand. Accordingly the Court granted special leave and proceeded forthwith to hear the appeal on its merits. This did not, of course, preclude the Court from rescinding special leave at a later stage, and leave was expressly reserved to counsel for the respondents to move for rescission. It may be noted that special leave was given to the Crown in R. v. Bradley [5] and also in A.-G. (N.S.W.) v. Martin [6] , a case in which similar questions arose to those which arise in the present case. Those questions relate to the admissibility in evidence of certain statements made to detectives by each of the respondents.