McGIBBON v The Queen

[2003] WASCA 311

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Misdirection
4. › Failure to direct on central factual issue
5. › Whether trial judge required to direct jury on knowledge of sharp edge of knife
6. › Whether appellant lost a fair chance of acquittal
1. Criminal Law
2. › Appeal against conviction
3. › Misdirection
4. › Direction on attempt
5. › Whether trial judge effectively removed ultimate question from jury by using facts in issue as example
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Inferences
5. › Whether direction on competing inferences properly given
6. › Whether reference to inference 'in favour of the accused' appropriate
1. Criminal Law
2. › Appeal against conviction
3. › Unsafe and unsatisfactory verdict
4. › Whether open to jury to be satisfied beyond reasonable doubt of guilt
5. › Criminal Code (WA)

Quick Take

In attempted murder cases where the accused's defence turns on a factual contention about the manner in which the act was committed (here, whether the accused knew she was using the sharp edge of a knife), the trial judge must isolate that factual issue for the jury and direct that if the accused's testimony leaves them with a reasonable doubt, the accused must be acquitted. A trial judge must not use the very facts in issue as an example when directing on the law of attempt, as this may effectively endorse the Crown case and foreclose the ultimate question for the jury.