Basto v R [1954] HCA 78

HIGH COURT [1954.

Horr. (464 ViR.650 C./9b0 QSh.y ae Kevd.1 967. a. Aelee 096F- 19 B17 Dist ./a70 VR.674

fete C4703 SPS 392. (HIGH COURT OF AUSTRALIA.]

Dis CPG), ostak, 54s BASTO AGAINST THE QUEEN.

H.C. or A. Criminal Law—Special leave to appeal—Application—Direction to jury—Matters

1954. ed SypNey, Nov. 18, 22; Dec. 17.

Kitto and Taylor JJ.

set up on behalf of accused—Reference—Adequacy—Probabilities—Hvidence— Statement by accused—Confessional—Admissibility—Crimes Act 1900-1951 (N.S.W.) (No. 40 of 1900—No. 59 of 1951), ss. 27, 410.

Upon the trial of an accused, a qualified medical practitioner, for admin- istering to his child poison with intent to murder, the trial judge, in his direction to the jury, put very clearly and prominently before them the question of the intent to murder as the central issue in the case and drew their attention to matters tending in the accused's favour on that issue, as well as to matters supporting an inference against him. There was evidence that when a sedative is to be given to a child chloral hydrate is that more commonly used. The judge was not asked at the conclusion of his charge to put the additional argument that the accused's use of chloral hydrate would tend to weaken or even negative the inference that his intent was to kill the child.

Held, that the additional argument, which formed part of an argument on probabilities advanced on behalf of the accused, was one of fact, not law, and it was impossible to treat the omission of an evidentiary consideration of such a kind from the summing-up as a ground for granting special leave to appeal to the High Court.

In a case where evidence of a confession is sought to be adduced, and the

judge is of the opinion that the confession has been freely and voluntarily ion for the jury to consider with

given and decided to admit it, the only qu s probative value or effect. 'The s