Johnson v The Queen [1976] HCA 44

High Court of Australia Barwick C.J. Gibbs, Mason, Jacobs and Murphy JJ. Johnson v The Queen [1976] HCA 44

ORDER Appeal allowed. Verdicts of guilty of, and convictions for, murder and sentences thereon by the Supreme Court of New South Wales set aside and in lieu of such verdicts and convictions direct that verdicts of guilty of manslaughter be entered and order that the matter be remitted to that Court to be further dealt with according to law.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 26 Barwick C.J.

The appellants are two brothers who were convicted in the Supreme Court of New South Wales at Sydney on 26th June 1974, of the murder of their father at Smithfield, a suburb of Sydney, on 6th February 1974. Peter, the elder of the brothers, was nineteen at the time and Phillip sixteen. They raised self-defence as a justification to the indictment and provocation as reducing the crime of murder to manslaughter. In addition, Peter sought an acquittal on the footing that he did not participate in any act which could have caused the death. Both were convicted of murder and each was sentenced to imprisonment for life. They appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales upon the principal ground of misdirection of the jury by the trial judge as to aspects of provocation as a warrant for reducing the crime to manslaughter. The Court of Criminal Appeal by majority (Street C.J. and Lee J., Nagle J. dissenting) dismissed the appeal, finding the summing up adequate in the circumstances [2] .

1. [1975] 2 N.S.W.L.R. 527.

This Court granted an application for special leave to appeal on 27th November 1975, as it clearly raised matters of considerable general importance in the administration of the criminal law. The appeal to this Court is based on the ground of misdirection as to the law in relation to provocation.