Stuart v The Queen [1974] HCA 54

High Court of Australia McTiernan A.C.J. Menzies, Gibbs, Mason and Jacobs JJ. Stuart v The Queen [1974] HCA 54

ORDER Application for special leave to appeal refused.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 29 McTiernan A.C.J.

This motion is an application for special leave to appeal from a decision of the Court of Criminal Appeal (Queensland). The application is made pursuant to s. 35(1) (b) of the Judiciary Act 1903-1969 Cth. The applicant and another accused, Finch, were arraigned before Lucas J. on an indictment which was in the following terms: "That on 8th March 1973 at Brisbane in the State of Queensland you murdered one Jennifer Denise Davie." The charge against the accused Finch was based on s. 302(2) of the Criminal Code Q.. Section 302 provides as follows:

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say,—

(1) If the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;

(2) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

(3) If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;

(4) If death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;

(5) If death is caused by wilfully stopping the breath of any person for either of such purposes;