Simpson v The Queen [1998] HCA 46

High Court of Australia Gaudron, McHugh, Kirby, Hayne and Callinan JJ Simpson v The Queen (H5/1997) [1998] HCA 46

ORDER Appeal dismissed

Cur adv vult

The following written judgments were delivered:—

23 July 1998 Gaudron and McHugh JJ.

1. Damien John Simpson (the accused) appeals against an order of the Court of Criminal Appeal of Tasmania [1] which dismissed his appeal against a conviction for murder. He contends that his conviction for murder should be quashed and a verdict of manslaughter substituted because the Crown failed to tender any evidence upon which the jury could reasonably find that he killed the deceased "by means of [an] unlawful act which [he] knew, or ought to have known, to be likely to cause death in the circumstances" [2] . Alternatively, he contends that the conviction for murder should be quashed and a verdict of manslaughter substituted because the trial judge erred in failing to direct the jury as to the circumstances that could be taken into account in determining whether the accused ought to have known that his act was likely to cause death. He also contends that the judge's directions to the jury effectively reversed the onus of proof as to those circumstances.

1. Simpson v The Queen (unreported; Supreme Court of Tas; 13 November 1996). 2. Criminal Code Act 1924 Tas, s 157(1)(c).

2. The charge of murder was laid under s 157(1)(c) of the Criminal Code Act 1924 Tas (the Criminal Code). That paragraph provides:

Subject to the provisions of section 160, culpable homicide is murder if it is committed —

(c) by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person.

3. The accused was tried before a judge and a jury of twelve in the Supreme Court of Tasmania [3] . At the trial, the Crown tendered evidence that in June 1995, the accused killed Anthony William Smith by stabbing him in the neck with a pocket knife which had a 7 cm blade. From the evidence, the jury was entitled to conclude that, after an altercation had started between two groups, the accused ran across the road to the footpath and struck the deceased who was a member of one of the groups. Friends of the accused were in the other group. None of the eye witnesses saw the accused with a knife. One eye witness said that the accused "just raised his hand and it looked like he had hit one of the fellows"; another said that the accused "brought it down as in a hitting motion like he punched him". But in a record of interview and in his evidence the accused admitted that he had stabbed the deceased with the knife. Medical evidence established that the deceased had been stabbed in the left side of the neck just above the collarbone. The entry wound measured 7.8 cm by 1.8 cm and was deep enough to cut one of the major branches of the aorta and pierce the upper part of the left lung.