Wilson v The Queen [1992] HCA 31

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Wilson v The Queen [1992] HCA 31

ORDER Appeal allowed. Set aside the order of the Court of Criminal Appeal of South Australia. In lieu thereof quash the conviction for manslaughter and order that there be a new trial on that charge.

Cur. adv. vult.

The following written judgments were delivered:—

1992, June 25 Mason C.J., Toohey, Gaudron and McHugh JJ.

The appellant was charged with the murder of Warren George Forsythe Ormsby. He was acquitted of that charge but was convicted of manslaughter. He stood trial jointly with Wayne Dennis Cumming who was found not guilty of murder and manslaughter. Both offences are dealt with in the Criminal Law Consolidation Act 1935 S.A. ("the Act") but neither is defined in the Act. Their elements are to be found in the common law.

The facts

The events giving rise to the charge against the appellant were as follows. On the evening of 15 September 1989 the appellant, his girlfriend Kerri Ann Bennier and Cumming were at the home occupied by Cumming's step-father and the appellant's mother. The appellant and Bennier walked to a hotel nearby to collect some alcohol from the appellant's mother who was at the hotel with Cumming's step-father. On the way they met the deceased, a middle-aged man, who was under the influence of liquor. The deceased exchanged words with the appellant and Bennier. The appellant thought that the deceased was "strange, a bit weird". The thrust of the appellant's evidence was that the deceased was rambling on and making it hard for him to pass. The appellant then told Bennier to go back home to get Cumming so, he said, that Cumming might go to the hotel and collect the alcohol. When Cumming arrived at the scene with Bennier, the appellant and the deceased were still there. The appellant claimed that the deceased had earlier pushed him and that, after Cumming arrived, the deceased "put his arm on the back of my neck and tried to kiss me". The deceased then "shouldered me". The appellant tried to walk away, saw that the deceased's fists were clenched at his side and thought that the deceased was going to hit him. This evidence followed: