Thomas v The Queen [1960] HCA 2

High Court of Australia McTiernan, Fullagar, Kitto, Taylor and Windeyer JJ. Thomas v The Queen [1960] HCA 2

ORDER Appeal allowed. Order of the Supreme Court of Western Australia as the Court of Criminal Appeal discharged. In lieu thereof order that the appeal to that Court be allowed, that the conviction and sentence be set aside, and that a new trial be had.

Cur. adv. vult.

The following written judgments were delivered:—

Jan. 29, 1960 McTiernan J.

This appeal is made with the special leave of the Court. The powers conferred upon the Full Court of the Supreme Court of Western Australia as the Court of Criminal Appeal devolve for the purposes of the appeal upon this Court. By s. 689 of the Criminal Code (the schedule to the Criminal Appeal Act 1913) the Court of Criminal Appeal has power to allow an appeal against a conviction upon indictment if an error of law was made by the trial judge, provided a substantial miscarriage of justice occurred; and to quash the conviction and enter an acquittal or order a new trial. The appellant, Robert Jeremiah Thomas was convicted before Virtue J. of the wilful murder of Keith Mervyn Campbell Wedd. The question in the present appeal is whether a wrong direction as to the burden of proof borne by the prosecution was given to the jury.

The intention of causing death is under s. 278 of the Criminal Code an ingredient of wilful murder; if the intention is only to cause grievous bodily harm, the accused is under s. 279 sub-s. (1) guilty of murder, and, under s. 280, any unlawful homicide, not wilful murder or murder, is manslaughter. Section 595 of the Code provides that upon an indictment for wilful murder the accused may be convicted of murder or manslaughter, if either of these crimes is established by the evidence.

As Thomas pleaded not guilty, the burden of proving every element of the crime of wilful murder was borne by the prosecution from the beginning until the end of the trial. The prosecution of course could rely upon the admissions of Thomas that he committed the crime with which he was charged to sustain its burden of proof. Nevertheless it was important to direct the jury correctly on the burden of proof.