Mraz v The Queen [1955] HCA 59

High Court of Australia McTiernan, Williams, Webb, Fullagar and Taylor JJ. Mraz v The Queen [1955] HCA 59

ORDER Appeal allowed. Set aside order of Court of Criminal Appeal. Quash conviction. Direct that judgment and verdict of acquittal be entered.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 McTiernan J.

Gyula Mraz was arraigned under the provisions of the Crimes Act (1900) N.S.W. on an indictment for murder in which the Crown charged that he did feloniously and maliciously murder Isabella Joyce Wilson. The date of the alleged crime was 27th September 1954 and the place was Woolamai. The indictment was in the form in which s. 376 of the Crimes Act says it shall be sufficient to charge murder. The accused pleaded not guilty. The trial took place before Nield J. and a jury. The verdict was "not guilty of murder but guilty of manslaughter". The accused was sentenced to be imprisoned for twelve years. He appealed under the provisions of the Criminal Appeal Act of 1912 of New South Wales against his conviction. The ground of the appeal was that Nield J. was in error in directing the jury that upon the case proved by the Crown they could find a verdict of manslaughter as an alternative to a verdict of murder and the direction operated to the prejudice of the accused because, according to the contention made on his behalf, it exposed him to the peril of being convicted of manslaughter if the jury considered that he was not guilty of murder. The Court of Criminal Appeal which heard the appeal was constituted by Street C.J., Herron and McLelland JJ. All the learned judges were of the opinion that the basis of the direction complained of was wrong. The basis was a view expressed by Nield J. as to the circumstances in which a rape and acts done during the commission of this crime would not be malicious. Street C.J. and McLelland J. were of the opinion that the direction should not have been given. Herron J. was of a different opinion. He said: "But I do not dissent from the decision of his Honour, in the somewhat unusual and special circumstances of this case, to leave to the consideration of the jury the alternative verdict of manslaughter, even though such a verdict may be thought to have been improbable" [1] . I should infer from his Honour's judgment in the Court of Criminal Appeal which very fully reviews the evidence, that his Honour thought that that verdict would be improbable because of the strength of the evidence of murder. The Court of Criminal Appeal applied the proviso to s. 6 of the Criminal Appeal Act. The words of the proviso are: "provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". Accordingly the court unanimously dismissed the appeal.