Quartermaine v The Queen [1980] HCA 29

High Court of Australia Gibbs, Stephen, Mason, Murphy and Wilson JJ. Quartermaine v The Queen [1980] HCA 29

ORDER Application for extension of time in which to lodge application for special leave to appeal granted. Application for special leave to appeal granted. Appeal allowed. Quash the convictions and order a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 12 Gibbs J.

The facts of this case are set out in the joint judgment of Mason and Wilson JJ. The question to which those facts give rise is whether, notwithstanding the errors of law that occurred at the trial, the Court of Criminal Appeal should have allowed the verdicts to stand on the ground that no substantial miscarriage of justice had occurred.

The applicant was arraigned on two charges: (1) that he with intent unlawfully to kill one Graham Wynne discharged loaded firearms at him; (2) that he with intent to do grievous bodily harm to one Graham Wynne unlawfully did grievous bodily harm to Perry Ugle.

The first of these charges was laid under s. 283 (2) of the Criminal Code W.A.. The offence is stated in the words of the form prescribed by No. 170 (2) of the Schedule of Forms to the Criminal Practice Rules. A statement in this form is sufficient as a matter of procedure (O. II, r. 2 of the Criminal Practice Rules), but it does not include all the elements which as a matter of law constitute an offence. Perhaps it was the form of the charge that misled the learned trial judge and both counsel into thinking that the applicant had been charged under s. 283 (1).

The charges constituted by the two sub-sections of s. 283 are similar, and in some cases a charge arising out of one set of circumstances might properly be laid under either sub-section. However, the elements of the two offences are not the same. The material words of s. 283 are as follows: