Re Anthony Gabor Tajber v R [1986] FCA 459 (24 December 1986)

FEDERAL COURT OF AUSTRALIA

Re: ANTHONY GABOR TAJBER
And: THE QUEEN
No. ACT G4 of 1986
Appeal - Criminal Law - Sentencing

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop J.
Neaves J.
Spender J.

CATCHWORDS

Appeal - Charge of murder - conviction of manslaughter - voluntariness in manslaughter - summing up - adequacy of direction in answer to jury question.

Criminal Law - Inconsistent verdicts - acceptance of and giving effect to jury's verdict of not guilty of murder but guilty of manslaughter

Sentencing - Appeal against head sentence of 15 years with non-parole period of 8 years for manslaughter - whether excessive - review of sentencing discretion by appellate court

Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444

Beavan v. The Queen [1954] HCA 41; (1954) 92 CLR 660

R. v. Schneidas (1981) 2 NSWLR 713

The Queen v. Martin [1984] HCA 23; (1984) 58 ALJR 217

Bradley v. The Attorney-General for Northern Ireland [1961] UKHL 3; (1963) AC 386

R. v. Quinn (Court of Criminal Appeal of NSW, 26 July 1979, unreported)

Ryan v. The Queen [1967] HCA 2; (1966-67) 121 CLR 205

R. v. Sorlie (1925) 25 SR(NSW) 533

Rex v. Croft (1933) 50 WN(NSW) 56

Harris v. The Queen [1954] HCA 51; (1954) 90 CLR 652

Kovac v. The Queen (1977) 15 ALR 637

Channon v. R. (1978) 20 ALR 1

R. v. Prindable (1979) 23 ALR 665

R. v. Tait and Bartley (1979) 24 ALR 473

R. v. Valentini and Garvie (1980) 2 A Crim R 170

R. v. Davey (1980) 2 A Crim R 254

R. v. J. (Federal Court, 10 November 1982, unreported)

Hughes and Curtis v. The Queen (Federal Court, 21 July 1983, unreported)

R. Williscroft (1975) VR 292

R. v. Pellizzeri (1982) 8 A Crim R 31

R. v. Fitzpatrick (Court of Criminal Appeal, NSW, per Moffit J., 20 December 1979, unreported)

HEARING

CANBERRA
24:12:1986

ORDER

The appeal be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

DECISION

This is an appeal against conviction and sentence of the appellant by the Supreme Court of the Australian Capital Territory on 24 December 1985. The notice of appeal was filed and served within time (Order 52, rule 15 of the Federal Court Rules), having regard to the operation of Order 3 rule 5 which deals with time running during the fixed vacation. The notice of appeal was amended by supplementary notice which was filed out of time and without leave on 2 July 1986. There being no objection by the Crown, we granted leave on the hearing of the appeal to amend the notice of appeal by filing the supplementary notice on 2 July 1986.

2. The appellant was, on 25 November 1985, arraigned on an indictment charging him that on 4 July 1985 he did murder Stephen Michael Jones. His wife was jointly charged in the same indictment with the manslaughter of the same victim. The trial took place before Kelly J. and a jury between 25 November 1985 and 6 December 1985 when the jury found the appellant not guilty of murder but guilty of manslaughter. The appellant's wife was acquitted. The court heard evidence on the question of sentence on 20 December 1985 and on 24 December 1985 sentenced the appellant to imprisonment for 15 years to date from 4 July 1985. A non-parole period of 8 years commencing on 24 December 1985 was specified.

3. The Crown case against the appellant was that the appellant believed that Jones had raped the appellant's wife about a month before the appellant met his wife and, of course, prior to their marriage. For five years the appellant had harboured a desire to pay Jones back for raping the appellant's wife. On the day before the killing the appellant went to Jones' flat but Jones was not home. He arrived home some time later but there was no discussion between them about the appellant's grievance. The appellant decided to leave, pick up his wife, a gun and ammunition and return to Jones' flat later that night.

4. During the evening the appellant consumed a large amount of alcohol and some cannabis. He went home, picked up his wife and went back to the appellant's flat in Oaks Estate, a suburb of Canberra. He took with him a loaded shotgun. He had placed five shells in the gun. The appellant's intention at that time was to beat Jones up in his wife's presence.

5. The appellant banged on the door of Jones' flat. Jones was woken by the loud banging and he let the appellant and his wife into the flat. The appellant ordered Jones to get down on the floor. The appellant was pointing the gun at Jones and kicking him. He ordered Jones to look at his wife and see whether he remembered raping her about five years earlier. Jones denied that it was him. The wife confirmed that he was one of the people who had raped her. Jones went to the door of the flat trying to escape. While he was trying to open the door the appellant shot him the first time. Jones ran out of the flat and as he was running down the driveway the appellant shot him again. While he was lying on the ground the appellant shot him again. On the medical evidence it was the third shot which was the cause of death.

6. The appellant gave evidence on his own behalf and called a psychiatrist to give evidence about his state of mind at the time when he killed the victim. The appellant did not dispute the basic sequence of events proved in the Crown case. The nature of his defence was to raise an issue whether he was acting voluntarily when he killed the victim. His defence was not based on the absence of any of the specific intents required for the commission of murder so as to raise before the jury a possible alternative verdict of manslaughter. It was common ground that the killing of the victim by the appellant was murder or nothing.

7. The trial judge gave directions to the jury in relation to insanity. It is not necessary to consider that aspect of the summing up any further as counsel for the appellant made it perfectly clear that the conduct of the accused's case at the trial had been directed solely to the necessity for the jury to be satisfied beyond reasonable doubt that the appellant had acted voluntarily in discharging the gun and killing the victim. It had been urged that the jury could not be satisfied beyond reasonable doubt and that the appellant was entitled to be acquitted.

8. Nevertheless, the trial judge did give directions to the jury in relation to the crime of manslaughter. It was certainly necessary for the trial judge to give some direction to the jury on the elements of the crime of manslaughter, as the wife had been charged in the same indictment and issue had been joined before the same jury on that charge. In my view, the jury's task of understanding the law of murder and manslaughter and applying it to the facts which it found against the appellant was rendered more than usually difficult by the trial judge's directions to the jury about manslaughter in the context of the case of murder against the appellant. It is necessary to examine his Honour's very long summing up in some detail.

9. The summing up commenced on 4 December 1985. After some general observations about the nature of a criminal trial, the burden of proof and the standard of proof, the judge directed the jury about the elements of the crime of murder. He told the jury that they had to be satisfied beyond reasonable doubt that the appellant's unlawful act or acts caused the death of Jones and that that act or those acts were done (a) with intent to kill Jones; (b) with intent to inflict grievous bodily harm on Jones; or (c) with reckless indifference to the life of Jones. It was unnecessary in the context of the trial to direct the jury in relation to murder by recklessness, but nothing turns on that for the purposes of this appeal as no exception was taken to that course at the trial or on the hearing of the appeal.

10. On the question of the intent involved in the crime of murder his Honour directed the jury in the following terms:

"I turn to the question of intent involved in the
murder count. The criminal law deals with acts which
are done voluntarily. To commit a crime such as
murder, the accused must form the intent to do the
physical acts which go to make up the crime.

In this case there are a number of intents which
he has to form and I will tell you about them. If you
find that the accused fired the fatal shots or that he
intended actually to do the physical acts involved, you
are required to be satisfied beyond reasonable doubt
that he both willed them and intended them. He must
have done them in the exercise of his will - that is
voluntarily - and he must have intended to do them.

I will try to show you what I mean by taking an
extreme example; a man may deliberately shoot another,
intending to shoot him and kill him, yet he may be
under a genuine hallucination, thinking the slain man
to have been an attacking wild beast. His will would
not have been to kill a man and it would not have gone
with the killing. He would not be guilty of murder,
for will and intent did not go together.

You have got to have both these things - the
operation of his will and the operation of his intent
before acts can be said to be done intentionally, and
that intent must operate at the moment he does the
physical acts in question. That is the critical moment
to which I made reference some time ago. But merely
to find that he intended and willed the physical acts
of pulling the trigger of the loaded shotgun when the
shots were fired, is not enough in this case. There is
a further mental element involved. He must have
deliberately intended - will and intent again going
together - to kill or to do grievous bodily harm to
Stephen Jones, or acted with reckless indifference to
his life.

If the question of reckless indifference to human
life comes up, you must be satisfied that he formed the
intent to do the physical acts involved in the
operation of his will and intent, and that although
foreseeing the likelihood, the probability that they
would cause the death of Stephen Jones, he nevertheless
went ahead with the death dealing acts, exercising his
intent and will to do so."

I digress to say that in my view the example set out in the above passage is not apposite. It is not an example of absence of will or voluntariness. It may be appropriate as an example of a form of insanity.

11. His Honour continued his directions on the intent necessary to establish the crime of murder as follows:

"I will again summarize the necessary intent. I am
probably repeating myself perhaps more than is
necessary, ladies and gentlemen, but it is terribly
important particularly in this case that you get this
right. He must have intended in the exercise of his
will voluntarily to do the act - I am sorry, to do the
physical act or acts making up the act of killing,
whatever you decide it or them to be, and he must also
in the exercise of his will voluntarily have intended
either to kill Mr Jones or to cause him grievous bodily
harm. If it becomes a question of recklessness, he
must have intended in the manner I have just indicated
to do the physical acts involved in the killing and
have done them recklessly actually in his circumstances
foreseeing the probability or likelihood that his
actions in shooting would result in the death of
Mr Jones.

To attain the requisite degree of satisfaction as
to intent, you must be satisfied first that Mr Tajber
had the capacity to form the intent to fire the shotgun
and the special intent to kill, cause grievous bodily
harm or to engage in the reckless conduct to which I
have referred. Even if you are satisfied beyond
reasonable doubt that he had the capacity to form these
necessary intents, you still have to go on to be
satisfied that he actually had the intent to do the
physical acts, and the intent to kill, cause grievous
bodily harm or to act in the appropriately reckless
way.

Mr Tajber says that he was so affected by a
condition of dissociation, hysterical dissociation, as
not to have formed the requisite intent. What he is
really saying is that his acts were not voluntary and
the acts making up the crime of murder must be
voluntary. You will appreciate that voluntariness in
this case means that the mind of the accused must have
been capable of going with the acts to which he
performed and that his will and intent with them; that
he in fact did what he did deliberately. If being
affected by that dissociation to the point where he
was incapable of forming the necessary intentions he
performed the acts which made up the killing, he cannot
be said to have acted voluntarily.

Even though you were satisfied beyond reasonable
doubt that he was capable of forming those necessary
intents, it is still a matter for you to be satisfied
beyond reasonable doubt that he was not so affected by
the dissociation as not to have the intent to carry out
the physical actions involved and also the special
intent to kill or to do grievous bodily harm or to act
with the necessary degree of recklessness.

It is for you to decide whether you are satisfied
beyond reasonable doubt that the relevant acts, those
making up the physical acts of the killing of Mr
Tajber, were voluntary in the requisite sense. The way
you will do that is by inference from observed facts of
the existence of which you are satisfied beyond
reasonable doubt and from what has been said by the
police and from what Mr Tajber himself has said and by
what has been said by the witnesses called on his
behalf, remembering always that it is for you to be
satisfied of essential matters upon which you base your
judgment beyond reasonable doubt."

12. In my opinion this passage in the summing up to the jury is wrong, or at least confusing, in regard to voluntariness. When an issue of voluntariness arises in a criminal trial, the question for the jury is not whether the accused had the capacity to form the intent to do the act charged but whether the mind went with the act charged in the sense that the act was a willed or voluntary act. Capacity to form an intent is an entirely different concept. The above passage would, in my opinion, have been very confusing and would not have assisted the jury in understanding the concept of voluntariness.

13. Following those directions his Honour embarked upon directions to the jury about the elements of the crime of manslaughter. His Honour did not focus the jury's attention upon the fact that his directions on manslaughter were irrelevant to the appellant and their consideration of the charge of murder against him. Manslaughter was not one of the alternatives which either the Crown or the appellant had contended as open to the jury. The probable confusion was noted by counsel for the appellant, as appears later. His Honour said:

"I put aside for the moment further consideration
of the murder as charged and turn to the elements of
the crime of manslaughter. A person is prima facie
guilty of manslaughter if he or she without having any
intention to kill or do grievous bodily harm, kills
another by an act which is both unlawful and
dangerous. If you are not familiar with the Latin
expression 'prima facie', it means: 'At first sight',
or 'On the face of it'. It may be put in another way.
Given that a person acting without having any intention
to kill or do grievous bodily harm, kills another by an
act which is both unlawful and dangerous, he or she is
in the ordinary way and in the absence of extenuating
circumstances which would absolve him from criminal
liability, guilty of manslaughter. And hereto we have
to have the necessary intent. It is different from the
intent required for murder. The only intention
required to be proved is the intent to commit the
unlawful act. Applying that to the present case, it is
unlawful to present or aim a loaded firearm or shot gun
at or towards a person without that person's consent
for that constitutes an assault, an unlawful act. It
is dangerous to fire such a firearm or shot gun if it
subjects a person to at least the risk of some harm
resulting therefrom even though not serious harm. It
is not necessary to prove that the accused intended any
harm to the deceased or that he realised that his act
was dangerous or unlawful. The test of the
dangerousness is objective, not did the accused
recognise that it was dangerous but would all sober and
reasonable people recognise the danger."

14. On the hearing of the appeal it was conceded by the Crown that it may have seemed strange for his Honour to have embarked upon manslaughter at that stage of his summing up as he did, but it was submitted that what his Honour was possibly endeavouring to do was to emphasise the intent necessary in the crime of murder by distinguishing murder from manslaughter.

15. To return to the summing up, his Honour then said that the charge of manslaughter against Sharon Tajber (the wife) was in a different situation. He outlined for the jury the way the Crown case was framed and directed them that the only way in which she could be found guilty of manslaughter was if they were satisfied beyond reasonable doubt that she was present for a common unlawful purpose, and that in the course of the carrying out of that purpose, to which she was assenting, Jones died as a result of an unlawful and dangerous act. It is unnecessary to deal further with the summing up in respect of the charge of manslaughter against the wife.

16. The summing up was then suspended until the next day. Before adjourning and apparently in the absence of the jury, the trial judge asked counsel for the appellant and the co-accused whether any further directions were sought at that stage. Counsel for the appellant responded to that question and the following exchange took place:

"MR O'CONNOR: No, except with this reservation; it is
not of any substance, but your Honour did put the
murder elements and then the manslaughter elements
in respect of Mr Tajber with no - the jury would
not have ever known there was a manslaughter
charge. I wonder if the connection between those
two - - -

HIS HONOUR: I will do that in due course.

MR O'CONNOR: - - - descriptions would have been
necessary.

HIS HONOUR: I will do that more closely in due course,
doctor.

MR O'CONNOR: I thought so, your Honour, except that it
must confuse them to hear a manslaughter not even
referred to in the charging; that is the thing.

HIS HONOUR: I was just using "he" or "she" throughout;
at least I hope I was.

MR O'CONNOR: No, you said specifically in that respect
- I thought it was directed specifically to the
alternative of manslaughter with Mr Tajber in part
of your direction.

HIS HONOUR: I tried to avoid that; I had better check
to make sure that I did not do that.

MR O'CONNOR: If you would, your Honour. Perhaps I
misheard it, but it seemed to me that your Honour
was putting a manslaughter outline to them when it
has not been necessarily connected with the murder
charge.

HIS HONOUR: Well, it seems to me that there is a need
to show the manslaughter which Mr Tajber would
have been guilty of.

MR O'CONNOR: Yes, that is quite so, except that you
- - -

HIS HONOUR: Before one can go on to Mrs Tajber's
charge.

MR O'CONNOR: I thought there was a possibility that
the jury may have been muddled when your Honour
went on to a manslaughter - - -

HIS HONOUR: All right. Well, I will see if I can tidy
that up in the morning."

17. When the hearing resumed the next day and still in the absence of the jury, there was a further exchange between counsel for the appellant and the trial judge as follows:

MR O'CONNOR: Did your Honour consider that question of
the - what struck me listening to your Honour, the
failure to put the nexus between
murder/manslaughter in respect of Anthony Tajber.

HIS HONOUR: I have been thinking about it overnight
trying to see any way in which I could put it,
doctor, and one of the tests of these things is
whether you can think of a way to put it to the
jury, and I could not do it.

MR O'CONNOR: I was only concerned that there might be
an element of unclearness in it so far as they
were concerned, how that became relevant, that was
all I was worried about.

HIS HONOUR: Yes. Well, manslaughter generally is
relevant to Sharon Tajber's charge, of course.

MR O'CONNOR: That is right, your Honour, yes.

HIS HONOUR: I will try not to confuse them any
further.

MR O'CONNOR: I do not say for a minute you have, your
Honour. It is I you confused, not them.

HIS HONOUR: If you are confused, doctor, I take the
view that the jury might be."

18. His Honour then resumed his summing up to the jury, referred to his directions about an unlawful and dangerous act as an element of the crime of manslaughter and told the jury that he had not intended to indicate to them that they had to take manslaughter into account in respect of the appellant. He reminded the jury that the appellant denied that in shooting Jones his acts were voluntary and redirected them about the meaning of voluntariness. In my view his Honour's redirections, which were clearer than his earlier directions on the subject, were adequate and correct. No ground of appeal was raised in criticism of those redirections, which is an important matter in the light of the jury's request later for the directions to be repeated.

19. At the very end of his summing up the trial judge invited the jury to raise any matters which they wished to raise before they retired to consider their verdicts. The following exchange took place between his Honour and the Foreman of the jury:

THE FOREMAN: Yes, your Honour. If it pleases the -
the members of the jury would be grateful if you
could go over, once again, the questions addressed
by Dr Bartholomew, concerning automation, I think
the expression was, and also the questions that
your Honour put to him and his answer to those.

HIS HONOUR: Yes. I will give you that. I will just
check with counsel to make sure we all understand
exactly what you are asking, Mr Foreman.

MR PURNELL: 459, I think, your Honour.

HIS HONOUR: I think that is the end of it, is not it,
Mr - no, I am looking for the earlier definition.

THE FOREMAN: Your Honour, just to clarify that; the
request for clarification on automatism relates
rather to your directions - your guidance on the
question of automatism rather than the evidence
from the doctor.

HIS HONOUR: So, you only want those questions I put to
Dr Bartholomew, do you?

THE FOREMAN: Yes.

HIS HONOUR: All right. Thank you.

MR O'CONNOR: I thought the Foreman, with respect your
Honour, had changed the application to being your
Honour's guidance to be recapitulated, but perhaps
I misunderstood.

HIS HONOUR: Well, what I understand to be asked of me
is this that I repeat what I said to you about
automatism this morning. Is that right?

THE FOREMAN: That is right, your Honour.

HIS HONOUR: And secondly, that I repeat to you the
questions which I asked of Dr Bartholomew and the
answers which he gave.

THE FOREMAN: Correct, your Honour.

HIS HONOUR: Was there anything else?

THE FOREMAN: We have a couple of other questions but
not related to these questions.

HIS HONOUR: Well, I will deal first with those two
matters. Are we quite clear about that gentlemen?

MR O'CONNOR: Yes, your Honour.

His Honour then repeated the directions, to which I have just referred, and read to the jury the relevant parts of the evidence of Dr Bartholomew, the consultant psychiatrist, who had given evidence on behalf of the accused.

20. His Honour then asked the jury whether there was anything else they wished to raise. The Foreman responded by raising a very significant matter, namely, the jury's right to find a person accused of murder not guilty of murder but guilty of manslaughter. The way in which the matter was raised and the way in which the trial judge dealt with it is as follows:

THE FOREMAN: Thank you, your Honour. Yes, there is a
notion - I mean, we would like to try to clarify.
Is it a fact or not a fact that if a person
accused or charged with murder is found not
guilty then he may be found guilty of
manslaughter?

HIS HONOUR: That verdict is always open.

THE FOREMAN: Even though it has not been expressly - -

HIS HONOUR: That is right.

THE FOREMAN: Thank you, your Honour. The last
question we had here was is it open to a jury to
make recommendations quite apart from the verdict
it may arrive at?

HIS HONOUR: Yes.

THE FOREMAN: Is there any definition of the extent of
its competence to make recommendations, your
Honour?

HIS HONOUR: Not to my knowledge. Gentlemen, would you
agree?

MR LALOR: I do agree, your Honour.

MR PURNELL: I agree also.

MR O'CONNOR: I do agree, your Honour.

THE FOREMAN: Thank you, your Honour, we have no other
questions.

HIS HONOUR: Well then you may retire, ladies and
gentlemen, but before you do, the verdicts that
are possible are these. Guilty of murder. Not
guilty of murder. Guilty of manslaughter, you
will not be asked about manslaughter unless you
specifically indicate you wished to be asked about
it. Not guilty on the ground of insanity. And I
think that covers it, does it not gentlemen? Yes,
would you please retire, ladies and gentlemen."

21. The jury having retired, his Honour then asked counsel for the accused whether they sought any further directions to the jury. Counsel for the appellant declined the invitation. Counsel for the co-accused did seek a further direction, which his Honour gave and the jury retired again. It then appears that during its deliberations the jury asked a question about the crime of manslaughter and the necessary state of mind in relation to such a crime. The following exchange took place between his Honour and counsel for the accused:

"HIS HONOUR: Gentlemen, I have received a question from
the jury in these terms. The jury would
appreciate your guidance as to precisely what
constitutes the crime of manslaughter and is it
affected by state of mind? I propose, unless you
persuade me to the contrary, to reinstruct them in
the way I did yesterday, with the modifications
made as a result of what you said to me this
morning, Dr O'Connor.

MR PURNELL: Your Honour, I do not know whether that
question is addressed to Dr O'Connor or my client.

MR O'CONNOR: Your Honour has referred to the charge
against Mrs Tajber - - -

HIS HONOUR: I am not worrying about your client. I am
simply saying I am going to make that
modification.

MR O'CONNOR: Yes; I thank your Honour."

22. His Honour gave the jury further directions. After referring to the question asked by the jury he directed them in the following terms:

"I propose to answer that question by defining
manslaughter in the way I did yesterday afternoon as
modified by the minor change I made to it this morning
and that will, I hope, encompass the answers you
require, but if it does not, you may consult amongst
yourselves and ask me any further questions you wish.

A person is prima facie guilty of manslaughter if
he or she, without having any intention to kill or do
grievous bodily harm, kills another by an act which is
both unlawful and dangerous. If you are not familiar
with the Latin expression prima facie, it means at
first sight or on the face of it. If you would prefer
that I take it sentence by sentence so that you can
take notes, I will do that too. I repeat it,
therefore. A person is prima facie guilty of
manslaughter if he or she without having any intention
to kill or do grievous bodily harm, kills another by an
act which is both unlawful and dangerous. If you are
not familiar with the Latin expression prima facie, it
means at first sight or on the face of it.

It may be put in another way. Given that a person
acting without having any intention to kill or do
grievous bodily harm, kills another by an act which is
both unlawful and dangerous, he or she is in the
ordinary way and in the absence of extenuating
circumstances which would absolve him or her from
criminal liability, guilty of manslaughter. I will
repeat that sentence. Given that a person acting
without having any intention to kill or do grievous
bodily harm, kills another by an act which is both
unlawful and dangerous, he or she is in the ordinary
way and in the absence of extenuating circumstances
which would absolve him from criminal liability, guilty
of manslaughter and here too we have to have the
necessary intent. It is different from the intent
required for murder. The only intention required to be
proved is the intent to commit the unlawful, dangerous
act. And that strictly answers the question you have
put to me, ladies and gentlemen. If it is not enough,
consult amongst yourselves and please let me know."

The foreman intimated that those further directions appeared to suffice and the jury retired again.

23. The next day the jury delivered its verdicts. It is necessary to set out the way in which the jury's verdicts were obtained:

"HIS HONOUR: Gentlemen, before the jury is asked to
give its verdict, I think I should say that a few
minutes ago a note was sent to me from the jury,
although I understood that a verdict had been
reached. I did not read the note and returned it
unread to the jury.

THE ASSOCIATE: Members of the jury, have you agreed
upon a verdict?

THE FOREMAN: We have.

THE ASSOCIATE: Is the accused Anthony Gabor Tajber
guilty or not guilty of the charge that on the
fourth day of July in the year 1985, in the
Australian Capital Territory did he murder Stephen
Michael Jones?

THE FOREMAN: We find Anthony Tajber not guilty of
murder. Your Honour, if I understood your
direction yesterday correctly, you said that if
the jury wished to be asked about a charge of
manslaughter against Anthony Tajber that we should
indicate to you.

HIS HONOUR: You wish to be asked that?

THE FOREMAN: We do, sir.

THE ASSOCIATE: Is the accused Anthony Gabor Tajber
guilty or not guilty of the charge that he, on the
fourth day of July in the year 1985, in the
Australian Capital Territory, commit the crime of
manslaughter by wilfully killing Stephen Michael
Jones?

THE FOREMAN: We find Anthony Tajber guilty of
manslaughter. We wish to recommend that he
undergo personality counselling, your Honour.

THE ASSOCIATE: Is that the verdict of you all?

THE FOREMAN: It is.

THE ASSOCIATE: Is the accused Sharon Maree Tajber
guilty or not guilty of the charge that she did on
the fourth day of July in the year 1985, in the
Australian Capital Territory, commit the crime of
manslaughter by unlawfully killing Stephen Michael
Jones.

THE FOREMAN: We find Sharon Tajber not guilty.

THE ASSOCIATE: Is that the verdict of you all?

THE FOREMAN: It is."

The contents of the jury's note delivered to his Honour prior to their verdicts remain a mystery.

24. The substance of the appeal against conviction is that in finding the accused not guilty of murder the jury must not have been satisfied beyond reasonable doubt that the act of killing the victim was voluntary. As the crime of manslaughter also requires that the act of killing be a voluntary act, the verdict of guilty of manslaughter is inconsistent with the appellant's acquittal of murder and his conviction for manslaughter cannot be allowed to stand.

25. It is clear law that under the common law, which has been reproduced by s.23(2) of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory, on a charge of murder a jury may return a verdict of not guilty of murder but guilty of manslaughter. Section 23(2) where relevant is in the following terms:

"(2) Where, on any such trial, it appears that the
act or omission causing death does not amount to
murder, but does amount to manslaughter, the jury may
acquit the accused of murder, and find him guilty of
manslaughter, and he shall be liable to punishment
accordingly.

. . . ."

26. It is equally clear that, if asked, the judge is bound to tell the jury of the alternative verdict open to them (Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444).

27. The trial judge may decline to accept the jury's verdict and ask them to reconsider it in the light of the conduct of the trial, his charge to the jury and any further direction he thinks it desirable to give. Such a course is appropriate where the circumstances of the case are such that the accused person should be found guilty of murder or should be acquitted and yet the jury improperly returns a verdict of manslaughter when there is in fact no material on which such a verdict may properly be returned. But if, on reconsideration, they refuse to alter it, their verdict of not guilty of murder but guilty of manslaughter must be accepted (Gammage v. The Queen, supra, per Barwick C.J. at 451, Kitto J. at 453; Beavan v. The Queen [1954] HCA 41; (1954) 92 CLR 660).

28. In my respectful view, when the jury asked its question as it was about to retire, the trial judge did not go far enough in telling them merely that they had the right to return a verdict of manslaughter. He should have given a clear statement of the circumstances in which a jury might properly return a verdict of manslaughter, together with an expression of his opinion that this was a case in which, because of its particular facts and circumstances, only a verdict of murder or one of acquittal was possible on any view of those facts and circumstances.

29. His Honour's appreciation of the facts and circumstances of the case was clearly expressed when he came to sentencing the appellant. He said that he construed the jury's verdict to mean that they were satisfied beyond reasonable doubt that the appellant engaged in an unlawful and dangerous act or acts during the execution of which Jones was killed. He stated that, when asked to do so by counsel for the appellant, he had refused to give directions concerning manslaughter on the charge of murder and that he had taken the view that no evidence had been led in the case which would warrant his giving directions on manslaughter. He said that it was a case of murder or nothing subject only to the possibility that the jury might have found the appellant not guilty on the ground of insanity. Those statements by his Honour reveal his clear understanding of the way in which the trial had been conducted.

30. Once the jury had asked about its power to return a verdict of not guilty of murder, but guilty of manslaughter, the trial judge should have directed the jury that, if they found all the elements of murder established, they had the power to return a verdict of manslaughter, but that they would fail in their duty or be false to their oaths were they to return such a verdict despite their findings and merely upon merciful or compassionate grounds. Indeed, the authorities go so far as to state that in such cases as the present it is proper for the jury to be directed in those or similar terms. In the joint judgment of the High Court in Beavan v. The Queen (Dixon C.J., McTiernan, Webb, Fullagar and Taylor JJ.), supra at 662-3, it is said:

"Upon an indictment for murder where the proofs
suffice to justify a verdict of murder, but on no view
of the evidence which might reasonably be adopted,
would the crime amount to manslaughter and not murder,
and counsel for the prisoner has not suggested to the
jury the possibility of their returning a verdict of
manslaughter, the judge is under no duty to inform the
jury that it is within their power to find a verdict of
manslaughter, unless the jury ask a question upon the
subject. In that case it will usually be incumbent
upon the judge to inform them that upon an indictment
for murder it is within the province of a jury to find
a verdict of manslaughter; but it is proper for him to
add an expression of his opinion that in no view of the
evidence which the jury might reasonably take are
findings of fact open that fall short of murder but
amount to manslaughter.

If, however, the jury do exercise their power to
find a verdict of manslaughter, and it is certain that
they were satisfied beyond reasonable doubt that the
prisoner unlawfully killed the deceased, the verdict of
manslaughter will not be invalidated merely because the
facts proved by the evidence upon which the jury must
have acted amount in point of law to murder. The
verdict must be taken to mean that the jury were
satisfied of all the elements of the crime of murder
except the existence of the requisite intention or
other form of malice aforethought but that they were
not prepared to find that this element existed. It is
within a jury's province to refuse to make this or any
other finding involving guilt and it is by that refusal
that the verdict of manslaughter is warranted. We
think that the law, as we have stated it, is
established by Mancini v. Director of Public
Prosecutions (1942) AC 1 at p8 per Viscount Simon
L.C.; R. v. Roberts (1942) 1 All ER 187; 28 Cr App
R 102; R. v. Gauthier (1943) 29 Cr App R 113; R.
v. Surridge (1942) 42 SR(NSW) 278 at p281; R. v.
Piekutowski (1952) SASR 44; Brown v. The King [1913] HCA 70; (1913) 17
CLR 570 at p.578 per Barton A.C.J.; Reg v. Grimes
(1894) 15 LR (NSW) 209 at p221 per Windeyer J.

The foregoing is the position alike at common law
and under s.23(2) of the Crimes Act 1900-1950 (NSW)."

See also R. v. Schneidas (1981) 2 NSWLR 713 at 717)

31. Accordingly, in my view, it would have been proper for the jury to have been told that there was no evidentiary basis upon which they could properly find manslaughter. If, despite such directions, the jury nevertheless returned a verdict of manslaughter, the trial judge could have declined to accept it and encouraged the jury to return a proper verdict. But even if his Honour had taken that course and yet the jury had persisted in its verdict of acquittal of murder but guilty of manslaughter, he would have had to accept it. In Gammage v. The Queen, supra, at p.451, Barwick C.J. said:

"They have no right, in my opinion, to return a verdict
of manslaughter where they are satisfied of murder.
But, as I have said, persistence by them in returning
another verdict must ultimately result in the
acceptance of that verdict. In that sense, but in no
other sense, it is both within their power and, if you
will, their privilege to return a wrong verdict."

32. Returning to the submissions on behalf of the appellant, it is no doubt correct that in order to commit the crime of manslaughter the act causing death must have been a voluntary act; see The Queen v. Martin [1984] HCA 23; (1984) 58 ALJR 217 where the High Court (Gibbs C.J., Murphy, Brennan, Deane and Dawson JJ.) said:

"There can be no doubt that the Crown is required to
prove in manslaughter no less than in other crimes that
the actions of the accused upon which it relies were at
least voluntary, since manslaughter is not only the
unlawful but also the voluntary killing of another
without malice (Hale's Pleas of the Crown, Vol. 1,
p.466)."

33. It does not follow, however, that, because the jury was not satisfied beyond reasonable doubt of the guilt of the appellant of the crime of murder, it was not satisfied beyond reasonable doubt that the appellant's act or acts causing death was or were done voluntarily. Its verdict may mean, as the Crown contended on the appeal, that it was not satisfied that the appellant had one of the intents necessary to make out the crime of murder but nevertheless had some sort of residuum of intent to cause appreciable harm to the victim. It must be conceded that if that was the jury's assessment of the appellant's state of mind when he killed the victim by discharging the gun three times, which in itself involved the mechanical act of pulling the trigger three times, they were not acting as a reasonable jury. Those physical acts are in the language of the cases "eloquent of intent" (see Bradley v. The Attorney-General for Northern Ireland [1961] UKHL 3; (1963) AC 386; and R. v. Quinn, Court of Criminal Appeal of New South Wales, 26 July 1979, unreported).

34. Such an assessment of the appellant's state of mind might have been unreasonable in the atmosphere of the trial but it is a possible explanation for the jury's verdict. There was a good deal of evidence about the appellant's consumption of alcohol and marijuana on the night of the killing. The jury might well have found that the accused was so muddled or confused in mind as to be incapable of forming the intent necessary to sustain a charge of murder.

35. For these reasons I would reject counsel's primary submission about inconsistency. Where, on a charge of murder, the principal issue is voluntariness and the jury return a verdict of not guilty of murder but guilty of manslaughter, the verdicts are not necessarily inconsistent.

36. In relation to the submission that the trial judge was in error in allowing the jury to consider whether the appellant could be convicted of manslaughter, I have already mentioned that his Honour embarked upon directions as to manslaughter immediately after he had given the jury directions about the crime of murder charged against the appellant and did not emphasise that those directions were irrelevant to their consideration of the charge of murder against the appellant. But reading the summing up as a whole, I think his Honour eventually made it clear to the jury that his directions about the crime of manslaughter were given in order to emphasise the intents necessary in the crime of murder, whereas those intents are not included in the crime of manslaughter, and were relevant to their consideration of the count of manslaughter against the appellant's co-accused.

37. In relation to this submission it is also necessary to remember that it was the jury which asked the question about its power to return a verdict of manslaughter against the appellant. His Honour was obliged to tell them that they had that right, although, as I have already stated, his directions should have gone further.

38. It was also submitted on behalf of the appellant that the trial judge failed to give directions to the jury that in relation to the crime of manslaughter they had to be satisfied beyond reasonable doubt that the act relied upon by the prosecution was a voluntary act. In my view it was unnecessary for the trial judge to give that direction in the context of the trial. The appellant raised in the trial an issue as to whether his acts were voluntary in relation to the crime of murder. The appellant did not raise any issue of voluntariness in relation to the crime of manslaughter. The case was conducted on the basis of the accused having committed the crime of murder or being entitled to an acquittal on the basis that his mind did not go with the acts causing death. The co-accused charged with manslaughter did not raise any issue of voluntariness based upon automatism or hysterical dissociation, as the appellant had done. In the circumstances it was not encumbent upon the trial judge to give directions about voluntariness in manslaughter.

39. A trial judge is after all required to give a jury appropriate directions upon the issues raised. If an issue of voluntariness is not raised, it is irrelevant in the ordinary conduct of a criminal trial to give directions to a jury about such an issue. If an issue such as voluntariness is raised, however, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. In Ryan v. The Queen [1967] HCA 2; (1966-67) 121 CLR 205 at 217, Barwick C.J. said:

"No doubt care will be taken by the presiding judge that
the available material warrants the raising of this
specific issue. In doing so, he will of course have in
mind that the question for him is whether upon that
material a jury would be entitled to entertain a
reasonable doubt as to the voluntary quality of the act
attributed to the accused. . . . Although a claim of
involuntariness is no doubt easily raised, and may
involve nice distinctions, the accused, if the material
adduced warrants that course, is entitled to have the
issue properly put to the jury."

40. It is also relevant to the submission on behalf of the appellant that the trial judge failed to give directions in relation to voluntariness as an element of the crime of manslaughter that counsel for the accused did not apply for any further directions in this respect despite his Honour's invitation. Nor did the Crown Prosecutor. Where no exception is taken to a summing up at the time of its delivery, it is a fair inference that counsel listening to it did not at that time detect anything unfair or misleading. As Street C.J. said in R. v. Sorlie (1925) 25 SR(NSW) 533 at 539:

"The practice of subjecting a summing up, after the
trial is over, to a minute and detail textual criticism
in the hope of finding something on which to base an
argument cannot be too strongly discouraged. Such a
practice does not . . . assist in the proper
administration of justice . . . "

41. Street C.J. repeated those observations in Rex v. Croft (1933) 50 WN(NSW) 56 They are entirely apposite to the present appeal:

"Now, some two months after the event, these additional
grounds are put before us which are obviously the
result of a very careful and detailed scrutiny of the
summing up directed to finding, if possible, something
on which it might be found vulnerable."

42. The notice of appeal in this matter was filed on 31 January 1986 and was limited to grounds of appeal against sentence. The supplementary notice raising grounds of appeal against conviction was not filed until 2 July 1986 and, as stated earlier, was filed without leave.

43. In my opinion, the appeal against conviction should be dismissed.

44. The grounds of appeal against sentence are that it was manifestly excessive; that the sentencing judge erred in according too much significance to the aspect of general deterrence and too little weight to the subjective circumstances generally of the appellant; that he erred in taking into account the activities of the appellant prior to the shooting of the deceased; and that he erred in finding that at the time of the killing the appellant's state of mind came close to that necessary to support a conviction for murder.

45. The principles upon which a Court, in the exercise of its appellate jurisdiction with respect to a discretionary sentence, will exercise that jurisdiction were expressed in Harris v. The Queen [1954] HCA 51; (1954) 90 CLR 652 and have been followed by this Court in Kovac v. The Queen (1977) 15 ALR 637; Channon v. R. (1978) 20 ALR 1; R. v. Prindable (1979) 23 ALR 665; R. v. Tait and Bartley (1979) 24 ALR 473 at 476; R. v. Valentini and Garvie (1980) 2 A Crim R 170; R. v. Davey (1980) 2 A Crim R 254; R. v. J, unreported decision of the Federal Court delivered 10 November 1982; Hughes and Curtis v. The Queen, unreported decision of the Federal Court delivered 21 July 1983.

46. Manslaughter is a crime which emcompasses a diverse group of situations ranging in their degree of heinousness from cases akin to murder to those where no sanction, or only a symbolic one, is called for. It is notorious that the circumstances of the commission of the crime of manslaughter can attract widely disparate sentences (R. v. Williscroft (1975) VR 292 at 299; R. v. Pellizzeri (1982) 8 A Crim R 31)

47. Where a person is charged with murder and the jury finds him not guilty of murder but guilty of manslaughter and the facts really support murder or nothing, as in the present case, the sentencing judge is called upon to take a view of the criminality which does not amount to the major crime and is fairly within the lesser crime. "Injustice can easily arise unless considerable care is taken to ensure that the sentence is based on the lesser crime and not enhanced by some view of criminality influenced by the circumstance that the facts appear really only to point to the major offence. At times a degree of judicial nimblemindedness is required to find that the objective facts only carry with them some minor mental element minimising the criminality" (R. v. Fitzpatrick, Court of Criminal Appeal, NSW, per Moffitt P., 20 December 1979, unreported).

48. In my opinion the sentencing judge did not fall into any error in his interpretation of the jury's verdict and did not fail to take into account any relevant circumstance in arriving at what he considered to be the appropriate sentence. The sentence of 15 years with a non-parole period of 8 years was a proper exercise of the sentencing discretion. I would likewise dismiss the appeal against sentence.

A summary of the relevant facts and an explanation of the circumstances giving rise to the issues argued on the hearing of this appeal are sufficiently set forth in the judgment of Gallop J. and I need not repeat them.

2. The principal issue raised by the appellant's appeal against his conviction is that the verdict of the jury that he was guilty of the manslaughter of Stephen Michael Jones was so inconsistent with their verdict that he was not guilty of Jones' murder that this Court should intervene to quash the conviction for manslaughter. Counsel for the appellant sought to persuade the Court that the sole issue at the trial was whether there was proof beyond reasonable doubt that the appellant's act in killing Jones was voluntary, the appellant having led evidence to show that it was attributable to a condition described as hysterical dissociation, and that, consequently, the acquittal on the charge of murder was explicable only on the ground that the jury were not satisfied beyond reasonable doubt that the act of killing was voluntary. It followed in counsel's submission that, as the voluntary killing of another is an essential ingredient of the crime of manslaughter, the necessary inconsistency was established.

3. I agree with the conclusion of the other members of the Court that, by reason of the matters to which they refer, no case has been made out for the intervention of this Court on the ground of inconsistency between the verdict of guilty of manslaughter and the verdict of not guilty of murder. It is not possible, on the material before the Court, to be satisfied that the ground upon which the jury returned their verdict of not guilty of murder was that they were not satisfied beyond reasonable doubt that the act of the appellant causing death was voluntary.

4. The other grounds of appeal against conviction have their foundation in questions asked of the trial judge by the foreman of the jury at the conclusion of the summing up and before the jury retired to consider their verdict and during the course of their deliberations and in the responses which the trial judge made to those questions.

5. The appellant's trial was conducted on the basis that, in the particular circumstances in which the killing of Jones by the appellant took place, only a verdict of murder or one of acquittal was proper on any view of the facts. No matters were advanced, either by the Crown or by the appellant, which required the jury to consider an alternative verdict of manslaughter and counsel for the appellant did not suggest to the jury the possibility of such a verdict being returned. Directions in relation to the crime of manslaughter were, however, necessarily given to the jury in relation to the charge, being heard at the same time, against the appellant's wife.

6. Counsel for the appellant conceded that, absent the questions asked by the jury, no exception could be taken to the summing up which, considered as a whole, adequately put the issues to the jury for their determination. But, it was submitted, the position radically changed when the jury, at the conclusion of the summing up, asked whether it was open to them to find the appellant not guilty of murder but builty of manslaughter and when guidance was sought by the jury during their deliberations as to the elements constituting the crime of manslaughter.

7. It was submitted that, those questions having been asked, the directions which the trial judge had given concerning manslaughter in relation to the charge against the appellant's wife, if applied by the jury in considering the case against the appellant, might have resulted in the jury acting on the basis that it was not necessary, in order to find manslaughter, that they be satisfied beyond reasonable doubt that the act which resulted in Jones' death was a voluntary act. It was also submitted that, the questions having been asked, the trial judge should have given further directions to the jury in relation to the elements of the crime of manslaughter and to the circumstances in which a verdict of manslaughter could, in the particular circumstances, properly be returned. These submissions were pressed upon the Court on the hearing of the appeal notwithstanding that none of them was raised before the trial judge even though counsel had every opportunity to do so.

8. Of particular relevance to the circumstances that arose before the trial judge is the following passage in the judgment of the High Court in Beavan v. The Queen [1954] HCA 41; (1954) 92 CLR 660 at p.662:

"Upon an indictment for murder where the proofs
suffice to justify a verdict of murder, but on no
view of the evidence which might reasonably be
adopted, would the crime amount to manslaughter
and not murder, and counsel for the prisoner has
not suggested to the jury the possibility of
their returning a verdict of manslaughter, the
judge is under no duty to inform the jury that it
is within their power to find a verdict of
manslaughter, unless the jury ask a question upon
the subject. In that case it will usually be
incumbent upon the judge to inform them that upon
an indictment for murder it is within the
province of a jury to find a verdict of
manslaughter; but it is proper for him to add an
expression of his opinion that in no view of the
evidence which the jury might reasonably take are
findings of fact open that fall short of murder
but amount to manslaughter."

See also Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444 and R. v. Schneidas (1981) 2 NSWLR 713

9. There is no doubt that, the jury having asked the question, the trial judge was obliged to inform them that the alternative verdict of manslaughter was open to them if that was the view they took of the facts. It would have been a misdirection to do otherwise. However, as the case was conducted throughout as one of murder or nothing and as the evidence would not properly support a verdict of manslaughter, it would not have amounted to a misdirection for the trial judge to have explained to the jury the basis on which they might properly return a verdict of not guilty of murder but guilty of manslaughter and to have expressed to them his opinion that, on no view of the evidence which they might reasonably take, were findings of fact open that would support such a verdict. Looking at the matter with hindsight, it may be said that the circumstances were such that that explanation and opinion should have been expressed but his Honour's failure to do so does not, in my opinion, warrant the conclusion that the trial miscarried. Again, it can be said that, when the jury returned the verdict of not guilty of murder but guilty of manslaughter, it would have been open to the trial judge to have declined to accept it and to have asked the jury to reconsider it. His Honour was not asked to take that course and I do not think his failure to do so provides any basis for this Court intervening to quash the conviction.

10. It was also submitted that, in answer to the jury's question concerning its power to bring in a verdict of manslaughter, a specific direction should have been given that to found such a verdict the jury must be satisfied that the act which resulted in the death was a voluntary act. I am unable to accept this submission. His Honour had, in a careful and detailed summing up, stressed, in the context of the charge of murder, the necessity of the jury being satisfied beyond reasonable doubt that the act which resulted in the death was a voluntary act. I am unable to conclude that the jury were left in any doubt that to return a verdict of either murder or manslaughter they had to be satisfied beyond reasonable doubt of the voluntariness of the appellant's act. Nor am I able to find anything in the summing up which was likely to have led to a misunderstanding on the part of the jury as to the nature of the crime of manslaughter.

11. In so far as the appeal is against the severity of the sentence imposed, I do not wish to add anything to what is said by Gallop J. In my opinion, no error has been demonstrated in this regard.

12. For these reasons, the appeal should, in my opinion, be dismissed.

I have had the benefit of reading in draft form the Reasons for Judgment of Gallop J. and agree that both the appeal against conviction and the appeal against sentence should be dismissed. Insofar as the appeal against sentence is concerned, I agree with the reasons of Gallop J. and there is nothing I wish to add. So far as the appeal against conviction is concerned, I agree generally with the reasons expressed by my brother, Gallop J., but there are some observations in respect of the issue of voluntariness I wish to add.

2. Sir Matthew Hale in his Pleas of the Crown (at Vol.1 Chapter XXXVIII, p.466) stated:-

"Manslaughter, or simple homocide, is the voluntary
killing of another without malice express or
implied . . ."

3. The appeal against conviction is based on the argument that the acquittal on the charge of murder must have been on the basis that the voluntariness of the act or acts of the accused which killed the deceased had not been established beyond reasonable doubt. Since, for a verdict of manslaughter, the act or acts of killing had to be voluntary, it was said that the conviction on manslaughter was inconsistent with the acquittal on murder.

4. The learned trial judge, in the course of his directions to the jury on murder, correctly told the jury that the criminal law deals with acts that are done voluntarily. The question of voluntariness had been the subject of submissions by counsel. The extensive directions by the trial judge on 4 December 1985 were directed to highlighting the existence of one of the specific intents necessary to establish a charge of murder beyond reasonable doubt.

5. The learned trial judge frankly admitted on the morning of 5 December 1985 that the jury may have been confused by some of his directions on the previous day. He said to Dr. O'Connor, who was counsel for the accused below, and on the appeal:-

"His Honour: I will try not to confuse them any
further.

Mr. O'Connor: I do not say for a minute you
have, your Honour. It is I you
confused, not them.

His Honour: If you are confused, doctor, I
take the view that the jury might
be."

The jury returned, and the learned trial judge continued his directions to them. He commenced by telling them that his observations as to manslaughter were quite general, and he referred to his earlier direction concerning manslaughter, where he had in part said:-

"The only intention required to be proved is the
intent to commit the unlawful act. Applying that
to the present case, it is unlawful to present or
aim a loaded firearm or shotgun at or towards a
person without that person's consent for that
constitutes an assault, an unlawful act. It is
dangerous to fire such a firearm or shotgun if it
subjects a person to at least the risk of some
harm resulting therefrom even though not serious
harm. It is not necessary to prove that the
accused intended any harm to the deceased or that
he realised that his act was dangerous or
unlawful."

6. Having referred to the last part of that earlier direction, he then told the jury:-

"I did not by that intend to indicate to you that
you have to take manslaughter into account in
respect of the accused, Anthony Tajber. What I
should have said to make it perfectly clear was
this: it is not necessary to prove that a person
charged intended any harm to the deceased or that
he realised that his act was dangerous or
unlawful."

He then continued his directions in these terms:-

"Anthony Tajber denies that his acts involved in
shooting Jones were voluntary. He raises the
matter commonly known as automatism. That means
action without conscious volition, conduct of
which the doer is not conscious, a temporary
eclipse of consciousness that nevertheless leaves
the person so affected able to exercise bodily
movements. In such a case the action is one in
which the mind in its normal functioning does not
control.

Once the issue has been raised - and I tell you as
a matter of law that it has been raised in this
case - it is for the Crown to prove beyond
reasonable doubt that the accused, Anthony Tajber,
did what he did with consciousness that he was
doing it, with knowledge that he was doing it. It
is for the Crown to prove that there was no
temporary lapse into unconsciousness during which
he performed the acts of shooting."

He continued by telling the jury that, on this aspect of the case, the issue is:-

". . . whether the fatal act of discharging the
firearm was the voluntary or willed act of the
accused, with the necessary intents to kill, to do
grievous bodily harm, or with the necessary state
of mind for recklessness."

He later said:-

"If the discharge or discharges of the shotgun
which caused the death of Jones were not the
voluntary or willed act or acts he is not guilty
of the crime of murder. You must, therefore,
understand what in this context voluntariness is.
As I have indicated to you in a general way the
accused is not guilty of the crime if the deed or
deeds with which would constitute it were not done
in the exercise of his will to act. In this case
the evidence shows it is a matter for you whether
you accept it that the conduct of the accused
which caused the death of Jones was a complex of
acts all done by him.

He took the shotgun from the flat and put it in
the car. He took the cartridges from the flat and
put them in the car. He loaded the shotgun. He
may have - it is a matter for you to decide this -
used the shotgun to strike Jones before he
was killed. He warned Jones, on his own evidence,
as he tried to escape to stop or he would shoot
and he used the words, 'Stop. I mean it. I will
shoot.' That is according to him.

He thereafter fired three shots, the first it
would seem as Jones attempted to get out the door
safely. The second in the vicinity of the steps
and the third when Jones was lying in the
driveway. It was one or more of the shots which
constituted the fatal wounding and that
necessarily involved, as a matter of physical
acts, the presentation of the shotgun in such a
way that the shots, when discharged, would strike
the body of the deceased, Jones, and the relevant
pulling of the trigger."

7. After further lengthy directions, immediately before the jury retired, the jury, at the invitation of the trial judge, asked him:-

" . . .there is a notion - I mean, we would like to
try to clarify. Is it a fact or not a fact that
if a person accused or charged with murder is
found not guilty then he may be found guilty of
manslaughter?
His Honour: That verdict is always open.
The Foreman: Even though it has not been expressly
- - -
His Honour: That is right."

8. There was no amplification of this comment, which was in the nature very much of a throwaway line, nor was there any counsel to the jury that, if they were satisfied of each of the elements of the charge of murder, it was their duty in accordance with their oath to return a verdict of guilty of murder.

9. The jury, after they had retired, asked a question of his Honour. That question was in these terms:-

"The jury would appreciate your guidance as to
precisely what constitutes the crime of
manslaughter and is it affected by state of mind?"

His Honour, in response to that question, told them:-

"A person is prima facie guilty of manslaughter if
he or she, without having any intention to kill or
do grievous bodily harm, kills another by an act
which is both unlawful and dangerous. . . .

Given that a person acting without having any
intention to kill or do grievous bodily harm,
kills another by an act which is both unlawful and
dangerous, he or she is in the ordinary way and in
the absence of extenuating circumstances which
would absolve him or her from criminal liability,
guilty of manslaughter. I will repeat that
sentence. Given that a person acting without
having any intention to kill or do grievous bodily
harm, kills another by an act which is both
unlawful and dangerous, he or she is in the
ordinary way and in the absence of extenuating
circumstances which would absolve him from
criminal liability guilty of manslaughter and here
too we have to have the necessary intent. It is
different from the intent required for murder.
The only intention required to be proved is the
intent to commit the unlawful, dangerous act. And
that strictly answers the question you have put to
me, ladies and gentlemen."

10. It is with reference to that sequence of directions that the central submission in this appeal falls to be decided.

11. Sir Garfield Barwick C.J. in Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444, in a nice, Hohfeldian analysis of "the right of a jury to return a wrong verdict", said at p.451:-

"They have no right, in my opinion, to return a
verdict of manslaughter where they are satisfied
of murder. But, as I have said, persistence by
them in returning another verdict must ultimately
result in the acceptance of that verdict. In that
sense, but in no other sense, it is both within
their power and, if you will, their privilege to
return a wrong verdict."

He later noted:-

"Because it is for the jury to be satisfied of the
elements of the murder charged and not for the
presiding judge, the possibility of a verdict of
manslaughter must almost always be present though
there may be cases, of which Mraz v. The Queen
[1955] HCA 59; (1955) 93 CLR 493 is suggested as an example,
where there cannot be any reason for such a
verdict."

12. In my opinion, that the jury entertained a reasonable doubt that the act or acts of the accused which killed the deceased was or were voluntary, is not the only interpretation of the jury's verdict of acquittal on the charge of murder.

13. While on the facts of the case it might seem bordering on the perverse for a jury to entertain a reasonable doubt as to intention to kill or do grievous bodily harm, in my view, it is not impossible to say that the jury, confronted with the evidence of the accused's state of mind concerning the relationship between the deceased and the accused's wife and what the deceased was alleged to have done to her, and the evidence of the consumption of alcohol and drugs by the accused in a period which was shortly before the firing of the shots, did not benignly conclude that none of the requisite intentions for murder was made out beyond reasonable doubt.

14. A second possible explanation for the acquittal on the charge of murder is that the jury was satisfied of each of the elements of murder yet, for reasons of misplaced compassion or mercy, chose to return a verdict of guilty of manslaughter. It is not irrelevant to note that conviction on the charge of manslaughter was accompanied by a recommendation:-

"We wish to recommend that he undergo personality
counselling, your Honour."

15. In my opinion, it does not follow that the verdict of acquittal on the charge of murder and the verdict of conviction on the charge of manslaughter are necessarily inconsistent. In my opinion, then, the appeal against conviction fails.

16. As to the task of sentencing as approached by the learned trial judge, he said:-

"By its verdict the jury must be taken to have
found necessarily that the killing was not done
with intent to murder Jones nor to cause him
grievous bodily harm and that it was not done
recklessly in the sense that knowing that the
conduct in which he was engaged without lawful
excuse would probably cause the death of or
grievous bodily harm to Jones, he nevertheless
persisted with that conduct."

And later:-

"I am bound I think to take the jury's verdict to
have meant that they were satisfied beyond
reasonable doubt that the accused engaged in an
unlawful and dangerous act or unlawful and
dangerous acts during the execution of which Jones
was killed."

17. In this approach, in my view, he was correct and, as earlier indicated, I am in entire agreement with the reasons of my brother Gallop on the appeal against sentence, and in his conclusion that the appeal against sentence should be dismissed.