Barca v The Queen [1975] HCA 42

High Court of Australia McTiernan, Gibbs, Stephen, Mason and Murphy JJ. Barca v The Queen [1975] HCA 42

ORDER Grant special leave to appeal. Appeal allowed. Conviction set aside and a new trial ordered.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 10 McTiernan J.

I am of the opinion that special leave to appeal should not be granted. It would be a departure from the traditional practice of this Court to grant the application.

This is a motion brought by Domenico Barca in purported pursuance to s. 35 (1) (b) of the Judiciary Act 1903-1969 Cth for special leave to appeal from a judgment of the Supreme Court of New South Wales constituted as the Court of Criminal Appeal dismissing an appeal under the Criminal Appeal Act, 1912, as amended, N.S.W. against a conviction on indictment for the crime of the murder — Crimes Act, 1900, as amended, N.S.W., s. 19 — of Raffaele Petula at Llandilo, New South Wales, on or about 27th September 1973.

Section 35 (1) provides, so far as material, that the appellate jurisdiction of the High Court with respect to judgments of the Supreme Court shall extend to any judgment whether final or interlocutory or whether in a civil or criminal matter, "with respect to which the High Court thinks fit to give special leave to appeal".

The deceased, Raffaele Petula, was the husband of Grazzia Petula, a sister of the applicant. The deceased and his wife lived at 171 Great Western Highway in the town of St. Marys, New South Wales, and the applicant lived with his wife at 121 Wrench Street, Cambridge Park, New South Wales. All were born in the Italian province of Calabria. The applicant was nearly thirty-seven years of age at the time of the murder of Raffaele Petula. He emigrated from Italy to Australia about twenty-two years ago and has been a naturalized Australian for approximately fourteen years. On Friday evening, 28th September 1973 the deceased's body was found in a rubbish dump in a lonely area of bush at Llandilo, New South Wales, partially concealed by a mudguard and felt. The deceased had been shot twice in the head with a .22 rifle, his skull was fractured and in the opinion of the doctor who performed the post mortem, this could have been caused by heavy clubbing over and around the head with a blunt object or instrument.