Pemble v The Queen [1971] HCA 20

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Pemble v The Queen [1971] HCA 20

ORDER Verdict of guilty of, and conviction for, murder and sentence thereon by the Supreme Court of the Northern Territory set aside and in lieu of such verdict and conviction direct that a verdict of guilty of manslaughter be entered and order that the matter be remitted to that Court to be further dealt with according to law.

Cur. adv. vult.

The following written judgments were delivered:—

May 25 Barwick C.J.

The appellant was charged on indictment in the Supreme Court of the Northern Territory of Australia with the murder on 25th September 1970 at Darwin of Josephine Crosbie. He was tried at Darwin on 1st December 1970 and convicted of murder by a jury of twelve, the trial occupying only one day. He now appeals to this Court as of right against his conviction pursuant to s. 47 (1) (a) of the Northern Territory Supreme Court Act 1961 Cth. The grounds of his appeal are misdirection and non-direction of the jury by the learned trial judge. The case presents unusual features which necessitate a recital both of the basic facts and of the course of the trial. I will first give the appellant's account of the happenings on 25th September 1970, the day of the shooting, drawn from his statement in court and from his statements to investigating police which were proved in evidence. The appellant did not give evidence on oath.

The appellant and the deceased had been cohabiting for some period before the fatal day. However, some days before that day the deceased had apparently decided to terminate their relationship and to separate from him, a course which the appellant neither approved nor relished. The appellant made overtures to her with indifferent or perhaps I should say fluctuating success. But a definite break had come in their relationship a day or so before 25th September. On that day the appellant spoke to the deceased's father at the Darwin hotel. He told the appellant that the deceased had not come home the previous night. The father said to the appellant: "That daughter of mine is no good. She wants shooting." To which he replied: "Leave her alone Dad, she's only young." The father responded: "She'll come home with her arm or leg broken the way she is carrying on." After leaving the deceased's father the appellant had a couple of games of pool and then tried to find the whereabouts of a man through whom he hoped to obtain employment. A little after seven in the evening he arrived at a hotel called "The Dolphin" where he saw the deceased, her sister and her father. He offered them a lift out to the Fannie Bay Hotel in his car but was told by the deceased that they were going to Berrimah. The appellant went to Fannie Bay where he arrived about 8 o'clock in the evening. Just after he got there the father's remark about shooting played on his mind; "that he (the father) had said that he felt like shooting her himself". He was possessed of a single shot .22 gauge rifle which he had with him in his car which was at this time about 600 yards from the Fannie Bay Hotel. He then cut down both the length of the barrel and the butt of the rifle with a hacksaw for the purpose of enabling him "to creep up behind the deceased". Having left the car and the rifle in it, he went closer to the hotel where he saw the deceased and a man. The deceased was sitting on the mudgard of a car parked outside the hotel. He hadn't expected to see the deceased at the Fannie Bay hotel because he thought she had gone to Berrimah as she had said she was intending to do. When he saw the deceased on the car outside the hotel he decided to frighten her by use of the rifle in some fashion. He returned to the car, obtained the rifle, cocked it and approached the deceased from behind carrying the rifle in his hand about level with his shoulder and pointing upwards with his finger on the trigger. He didn't know the rifle was loaded, a bullet could have been left in it when he was last shooting geese. When he was a couple of feet from her he yelled out the deceased's name to attract her attention but then stumbled and the rifle discharged. He said he had no intention of hurting the deceased, that he loved her and that whilst he now realized it was a stupid thing to do he only meant to frighten her.