Hawkins v The Queen [1994] HCA 28

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. Hawkins v The Queen [1994] HCA 28

ORDER Appeal allowed. Set aside the order of the Court of Criminal Appeal of Tasmania. In lieu thereof allow the appeal to that Court. Remit the matter to the Court of Criminal Appeal to make such consequential order as that Court sees fit in accordance with the judgment of this Court. Remand the appellant in custody to await the further order of the Court of Criminal Appeal.

Cur. adv vult.

The Court delivered the following written judgment:—

June 29 Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

On the morning of 27 October 1990, the appellant, then aged sixteen, and his father went into a pine plantation at Railton. The appellant had a gun. He fired it in the direction of his father and the bullet entered the father's heart and killed him. The appellant was charged with murder under s. 158 of the Tasmanian Criminal Code [1] ("the Code"). Murder is defined by s. 157(1) which provides, inter alia, as follows:

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

(a) with an intention to cause the death of any person, whether of the person killed or not;

(b) with an intention to cause to any person, whether the person killed or not, bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death.

The prosecution case was one of premeditated murder. The defence case was that the appellant entered the pine plantation intending to commit suicide in his father's presence and that at the last moment, in a disturbed state of mind, he turned the rifle from himself towards his father and pulled the trigger without having the specific intention necessary to establish the crime of murder. 1. Schedule 1 to the Criminal Code Act 1924 Tas.