Niven v The Queen [1968] HCA 67

High Court of Australia Barwick C.J. McTiernan, Kitto, Windeyer and Owen JJ. Niven v The Queen [1968] HCA 67

ORDER Special leave to appeal refused.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 24 Barwick C.J., McTiernan, Kitto, Windeyer and Owen JJ.

The applicant for special leave was convicted by the Supreme Court of Tasmania of the murder of his wife. The Court of Criminal Appeal has dismissed his appeal to that Court upon the ground that, though certain evidence tendered by the Crown in a case in reply ought not then to have been admitted, no substantial miscarriage of justice had actually occurred.

The evidence called in chief for the prosecution included, in addition to the circumstantial details of the shooting of the deceased and of the accused, a number of clear admissions that the accused had deliberately shot his wife. There was no challenge to the veracity of any of the several witnesses who deposed to these admissions. But the admissions were criticized as themselves unreliable, in the sense that though they may have been made, the accused when making them was in such a physical or mental state that what he then said ought not to be acted upon. Certain internal inconsistencies and alleged inaccuracies were pointed to in support of this criticism of the admissions.

There was no material either in the circumstances of the shooting or in the admissions attributed to the accused which could found a reasonable hypothesis of an accidental discharge of the gun.

The accused gave evidence in which he gave an account of the happenings of the evening in question up to a certain point of time anterior to the discharge of the rifle which unquestionably caused the death of his wife. Some of the details thus given confirmed portions of the admissions attributed to him by the evidence for the prosecution. However, the accused claimed to have no memory beyond this point of time. He said he did not remember anything at all about the shooting. His next memory, he said, was of an event in hospital during his treatment for his own condition which resulted from his own endeavour to commit suicide by discharging the rifle into his mouth. Somewhat miraculously, this endeavour had failed, the bullet from the rifle, the muzzle of which had apparently been inserted in his mouth, being deflected by his teeth so that none of it penetrated any part of the brain but all of it went into the soft tissue of the face.