Mraz v The Queen [No 2] [1956] HCA 54

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Taylor JJ. Mraz v The Queen [No 2] [1956] HCA 54

ORDER Application for special leave to appeal granted. Hearing of the application to be treated as the hearing of the appeal. Appeal allowed. Order of the Supreme Court as the Court of Criminal Appeal discharged. In lieu thereof order that the conviction for rape and judgment thereon be quashed and a verdict and judgment of acquittal be entered.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 14 Dixon C.J., Williams, Webb, Fullagar and Taylor JJ.

This application for special leave to appeal depends upon a question of issue estoppel. By the order from which special leave to appeal is sought the Supreme Court dismissed an appeal by the applicant from a conviction of rape. He objects that his conviction of rape is inconsistent with the findings made, or which must be taken to have been made, on an indictment of murder upon which he had already been tried. The charge of murder had been based upon the death of a young woman on 27th September 1954. The case for the Crown had been that the applicant had ravished her and that he had caused her death during or immediately after the commission of this crime.

The course taken at the trial of the indictment for murder was somewhat curious. The jury were told by the presiding judge that before they could convict the applicant of murder they must be satisfied not only that he committed rape and in the course of doing so had caused her death but also that the act was "malicious". If they considered that rape had been committed by the applicant and that death was caused in the course of the commission of the crime but that the act was not malicious they should acquit him of murder but they might convict him of manslaughter. The jury in the result found a verdict of not guilty of murder but guilty of manslaughter.