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High Court of Australia |
QUARTERMAINE v. THE QUEEN [1980] HCA 29; (1980) 143 CLR 595
Criminal Law and Practice (W.A.)
High Court of Australia
Gibbs(1), Stephen(2), Mason(3), Murphy(4) and Wilson(3) JJ.
CATCHWORDS
Criminal Law and Practice (W.A.) - Indictment - Offences charged against one provision of Code - Trial conducted as though offences against another provision - Misdirection of jury - Whether substantial miscarriage of justice - Criminal appeal provisions - Criminal Code of Western Australia, ss. 4, 283, 689 (1) - Criminal Practice Rules (W.A.), O. II, r. 2.
HEARING
Melbourne, 1980, March 18;DECISION
August 12.2. The applicant was arraigned on two charges: (1) that he with intent unlawfully to kill one Graham Wynne discharged loaded firearms at him; (2) that he with intent to do grievous bodily harm to one Graham Wynne unlawfully did grievous bodily harm to Perry Ugle. (at p597)
3. The first of these charges was laid under s. 283 (2) of the Criminal Code (W.A.). The offence is stated in the words of the form prescribed by No. 170 (2) of the Schedule of Forms to the Criminal Practice Rules. A statement in this form is sufficient as a matter of procedure (O. II, r. 2 of the Criminal Practice Rules), but it does not include all the elements which as a matter of law constitute an offence. Perhaps it was the form of the charge that misled the learned trial judge and both counsel into thinking that the applicant had been charged under s. 283 (1). (at p598)
4. The charges constituted by the two sub-sections of s. 283 are similar, and
in some cases a charge arising out of one set of circumstances
might properly
be laid under either sub-section. However, the elements of the two offences
are not the same. The material words of
s. 283 are as follows:
"Any person who -any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life;
(1) Attempts unlawfully to kill another; or
(2) With intent unlawfully to kill another does any act, or omits to do
is guilty of a crime. . . . "To give meaning to s. 283 (1) it is necessary to read into it the description of "attempt" contained in s. 4 of the Code. The result is that if in the present case the charge had been laid under s. 283 (1) it would have been incumbent on the Crown to prove that the applicant intended to kill Wynne, that he began to put his intention into execution by means adapted to its fulfilment (namely by discharging the firearm) and manifested his intention by an overt act (which also would have been constituted by discharging the firearm). The learned trial judge directed the jury that these were the elements of the offence that had to be proved before a verdict of guilty could be returned. On a charge under s. 283 (2) also the Crown had to prove the first mentioned of those elements, that the applicant had an intention to kill Wynne. The remaining element however, was different. It had to be proved that the applicant did an act of such a nature as to be likely to endanger human life. The act relied on of course was the act of discharging the firearm - the same act that had to be proved before the applicant could be convicted under s. 283 (1). However, the mere discharge of a firearm would not itself be enough. An offence against s. 283 (2) would only be committed if the discharge of the firearm was in the circumstances an act of such a nature as to be likely to endanger human life. Whether the discharge of a firearm would be likely to endanger human life would depend on all the circumstances: the direction in which the firearm was aimed, the distance which the person whose life was said to be endangered was from the firearm, whether that person was stationary or in motion and, if moving, in what manner and direction, the calibre and efficiency of the firearm, and so on. The learned judges of the Court of Criminal Appeal held that the direction given by the learned trial judge in relation to s. 283 (1) was wrong because it was irrelevant, but did not attach importance to the omission to tell the jury that the Crown had to prove that the applicant did an act which was of such a nature as to be likely to endanger human life. They apparently considered that it would be unreasonable in the circumstances of the present case to hold that the discharge of the firearm was not likely to endanger human life. Indeed they said that this was never really in dispute, but if that is so it may be explained by the obvious circumstance that no one thought it relevant. (at p599)
5. After the jury had retired to consider the verdict they returned with a
question:
"If the accused discharged a gun at a group of people, thinking that
amongst that group was a person he intended to kill or
harm, can the accused
be found guilty if the person to be harmed or killed be not hit by the
bullet?"
The learned trial judge referred the jury to that part of s. 4 which provides
that it is immaterial that by reason of circumstances
not known to the
offender it is impossible in fact to commit the offence, and said:
"If an accused fires into a group, thinking mistakenly that amongst that
group is a person whom he intends to kill and he hits
someone else, he can be
convicted of attempting to kill the man at whom he thought he was firing."
Before us, counsel for the applicant submitted that this direction was
misleading in relation to the first charge, which, as drawn,
alleged that the
applicant discharged the loaded firearm "at" Wynne. In this respect, however,
the form of charge introduced an element
that is not included in the charge by
the words of s. 283 (2) itself. If attention had been drawn to this at the
trial, the question
of amendment would have fallen for consideration. It does
not appear that reliance was placed upon this redirection when the case
was
argued before the Court of Criminal Appeal, and I do not consider that the
applicant should be allowed to raise it on this application
for special leave
to appeal. (at p599)
6. The learned trial judge left the question of self defence to the jury in relation to the first charge, but withdrew it from their consideration on the second charge. It is not clear why he took this course. The Court of Criminal Appeal held that self defence should not have been withdrawn in relation to the second charge, and the learned Solicitor-General for Western Australia, who supported the conviction before us, accepted the correctness of that view. The argument advanced on behalf of the Crown, and accepted by the Court of Criminal Appeal, was that since the jury by its verdict had negatived self defence in relation to the first charge, and since both charges arose out of the same circumstances, it can confidently be assumed that the jury would have rejected the case of self defence put forward by the applicant in relation to the second charge also. (at p600)
7. The proviso to s. 689 of the Criminal Code is in familiar terms. It
provides that "the Court may, notwithstanding that they are
of opinion that
the point raised in the appeal
might be decided in favour of the appellant,
dismiss the appeal if they consider that
no substantial miscarriage of justice
has actually
occurred". The effect of that proviso was stated by Fullagar J.
in Mraz v. The
Queen [1955] HCA 59; (1955) 93 CLR 493, at p 514 in a celebrated passage:
"It is very well established that the proviso . . . does not mean that a
convicted person, on an appeal under the Act, must
show that he ought not to
have been convicted of anything. It ought to be read, and it has in fact
always been read, in the light
of the long tradition of the English criminal
law that every accused person is entitled to a trial in which the relevant law
is correctly
explained to the jury and the rules of procedure and evidence are
strictly followed. If there is any failure in any of these respects,
and the
appellant may thereby have lost a chance which was fairly open to him of being
acquitted, there is, in the eye of the law,
a miscarriage of justice. Justice
has miscarried in such cases, because the appellant has not had what the law
says that he shall
have, and justice is justice according to law."
In the present case the relevant law was not explained to the jury. It was
within the jury's province to decide whether they were
satisfied that the
applicant did an act of such a nature as to be likely to endanger human life.
That question was never left to
them. It is true that the jury must be taken
to have found that the applicant discharged the rifle, and probably that he
discharged
it at Wynne. It was but a short step to hold that in so doing he
did an act of such a nature as to be likely to endanger human life,
and the
evidence would clearly have supported a finding to that effect. Indeed, there
is much to be said for the view that the jury
in the present case could not
reasonably have made any other finding. Ordinarily, when there has been a
misdirection of law, the
proviso to s. 689 will be applied if the Crown
establishes that if there had been no misdirection the jury would (or must)
have come
to the same conclusion. However, Wickham J., who delivered the
judgment of the Court of Criminal Appeal in the present case, recognized
that
even if this were established "there might still be a substantial miscarriage
of justice if the trial was so irregular that
no proper trial had taken place,
in that 'there had been a serious departure from the essential requirements of
the law'". The Court
of Criminal Appeal was right in taking that view of the
law, but, in my opinion, wrong in considering that there was no substantial
miscarriage of justice in the present case. In Andrews v. The Queen [1968] HCA 84; (1968) 126
CLR 198 this Court held that the proviso
should not
be applied where the
accused was not in reality tried for the offences
for which he was indicted
(1968) 126 CLR, at pp
207-210 .
That case was similar to the present, in that
the summing up was more appropriate
to a different charge, and the jury were
not instructed
as to the essential elements of the charge in fact laid.
Another case, in
which the proviso was not applied because
the errors were
considered to be funadmental, was Reg. v. Hildebrandt (1963) 81 WN (Pt 1)
(NSW) 143, at p 148 . The jury in the present
case were
never asked to
consider whether the applicant committed an offence against
s. 283 (2) and did
not find that the elements
of an offence
against that sub-section had been
proved. When a jury has returned a verdict
of guilty of a particular crime
without
having considered
whether that crime was committed, the verdict
cannot, in my opinion, be
sustained by holding that the jury would
or should
have returned
the same verdict if they had considered the proper questions.
That
would substitute trial by judge for trial
by jury. (at p601)
8. So far as the second charge is concerned, in my opinion it cannot be said that the jury would necessarily have rejected the applicant's case that he acted in self defence simply because they had rejected it on the first charge. It was an element of the first charge that the applicant had an intent to kill whereas the second charge involved only an intent to do grievous bodily harm. It is possible that the jury took the view that the shot that wounded Ugle was not fired with intent to kill Wynne (for a number of shots were fired) and that it was necessary for the defence of the applicant, within s. 289 of the Code, that he should use force intended to do grievous bodily harm, but not that he should use force intended to cause death. (at p601)
9. The case has caused me considerable difficulty, but with great respect to those who take a different view I have reached the conclusion that the convictions should not be allowed to stand. In my opinion, it is appropriate to grant special leave to appeal because of the great departure from the proper course of a trial that occurred when the jury were in effect asked to consider whether the applicant was guilty of an offence different from that with which he was charged. (at p602)
10. I would grant special leave to appeal, and would allow the appeal. I would set aside the convictions and order a new trial. (at p602)
STEPHEN J. I agree that, for the reasons stated by Gibbs J., special leave should be granted and this appeal allowed, the convictions being set aside and a new trial ordered. (at p602)
MASON AND WILSON JJ. This is an application for special leave to appeal from the decision of the Court of Criminal Appeal of Western Australia dismissing the applicant's appeal against his conviction by a jury of two offences, namely: (a) that with intent unlawfully to kill one Graham Wynne he discharged loaded firearms at him, and (b) that with intent to do grievous bodily harm to one Graham Wynne, unlawfully did grievous bodily harm to one Perry Ugle. It is coupled with an application for an extension of time in which to make the application. (at p602)
2. The two charges arose out of an incident which occurred in Simpson Street, West Perth in the early hours of Sunday, 8th October 1978, in the course of a feud between two groups of aboriginals. Despite conflicting versions of the events surrounding the incident given in evidence by witnesses from the two sides, it sufficiently appears that a group of about fifteen men and boys, led by one Graham Wynne, drove in cars to a house in Simpson Street occupied by one Clem Miller and a number of other aboriginals, including women and children. Some members of Wynne's group were armed with bricks, bottles and "irons". It was said that Wynne's purpose in going to the neighbourhood was to seek out Clem Miller, and have a "fair fight" with him, while his companions were there to see that it was indeed a fair fight. But there was evidence from which a more aggressive purpose could be inferred. It appears that on each of the two preceding nights, the Miller residence had been a target of aggressive action by members of the opposing group, resulting both in physical assault and property damage. (at p602)
3. The applicant lived with his wife and small child in Osborne Park. He possessed a cut-down semi-automatic .22 rifle which he said was for the protection of himself and his family. Earlier in the night in question a young relative of Clem Miller by the name of Joseph Miller called on the applicant and asked if he could borrow the rifle because they were expecting trouble at Simpson Street. The applicant refused, but he then himself went with his wife and child to Simpson Street, taking the rifle and a loaded magazine with him. Preparations were then made to receive the visitors, including the production by young Joseph Miller and a companion of several petrol bombs. (at p603)
4. The applicant retired to bed in an adjoining house, taking the rifle with him, and went to sleep. He was awakened in the early hours by a shout that "the boys are here", meaning, as he said, "Wynne and his mob". (at p603)
5. He got up and proceeded to the gate of the Miller residence, with the rifle hidden in his clothes. There he was confronted with Wynne and his friends, although he said in evidence that he did not actually know if Wynne was among them. According to the applicant, one of the group said they were going to kill him and his friends, and a brick was thrown which hit him on the shoulder. He then drew the rifle, and fired some shots into the air. This caused most of the group to retreat, but some of the young "cheeky" ones stood their ground, menacing him. He then lowered the rifle and fired shots into the group. This caused the entire group to flee, whereupon the applicant chased them, firing more shots at them. He said that he had wanted to kill Graham Wynne, but he did not know whether he was there. The applicant's evidence as to what happened immediately he fired the first shots into the air was contradicted by those intruders who gave evidence. They each testified that all the members of Wynne's group had turned and run away when the applicant fired the first shots, and this version of the incident accords with the account given by the applicant to the investigating police officers. It is, of course, common ground that one of the bullets fired by the applicant hit Ugle in the back as he ran, causing him serious injury. (at p603)
6. The applicant was indicted on the two counts to which we have referred.
The first count is an offence under s. 283 of the Criminal
Code of Western
Australia. That section reads as follows:
"Any person who -any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life;
(1) Attempts unlawfully to kill another; or
(2) With intent unlawfully to kill another does any act, or omits to do
7. Both the offences comprehended by this section may be described by the
short description of "Attempted Murder", but there is
an important distinction
between them. The elements of the first include those which constitute an
attempt to commit an offence;
in the case of attempted murder, they may be
described as an intention unlawfully to kill, a commencement to put that
intention into
execution by means adapted to its fulfilment, and the
manifestation of the intention by some overt act (Criminal Code, s. 4). The
relevant elements of the second offence outlined in the section are an
intention unlawfully to kill coupled with the doing of
an
act which is of such
a nature as to be likely to endanger human life. The overt act which is
sufficient to constitute the first
stated
offence of attempted murder may or
may not be of such a nature as to be likely to endanger human life. But for
this, the distinction
between the two offences would seem to be merely a
matter of form. (at p604)
8. The Crown concedes that, as drafted, the first count in the indictment alleges an offence under s. 283 (2). However, in form it does not follow strictly the words of the section. On the one hand, it fails to allege specifically that the discharge of the loaded firearm was an act of such a nature as to endanger human life, while on the other hand it alleges that the applicant shot at one Graham Wynne, an allegation which might be thought to be more specific than the section requires. Nevertheless, the count conforms to the form of words prescribed in the Criminal Practice Rules, and is therefore to be "deemed sufficient" in law (Criminal Code, s. 747). (at p604)
9. The first problem raised for the consideration of the Court is that the trial judge without objection from either the Crown prosecutor or defence counsel explained the first count of the indictment to the jury as if it alleged an offence under s. 283 (1). In other words, he directed the jury on the law pertaining to an attempt to kill, and omitted any explicit referto the "hidden" element of the offence as charged, namely, the requirement that the overt act must be an act of such a nature as to endanger human life. (at p604)
10. We say that the trial judge omitted any explicit reference to the element
of an offence under s. 283 (2) that the act was of
such a nature as to
endanger human life, because attention to such an element may well be thought
to be implicit in any consideration
of the alleged act, namely, that he
discharged a loaded firearm at Wynne. The absence in the prescribed form of
any reference to
the nature of the act may be explained by the fact that the
discharge of a loaded firearm at a person is ordinarily an act of such
a
nature as to endanger human life. Be that as it may, in the course of his
charge the trial judge said:
"The allegation that Brian Quartermaine fired the rifle at these men is
central to the Crown case whichever way you look at
it. It is the way in which
the Crown says the accused attempted to murder Wynne and it is the way in
which it says he did grievous
bodily harm to Ugle.
It is in every sense of the word a threshold question because unless you
find beyond a reasonable doubt that the accused discharged
the firearm, you
should acquit him of both charges. . . .
Again, although it is a matter for you to decide, you may have little
difficulty in coming to the conclusion that the rifle
was capable of
inflicting a fatal injury. . . ." (at p605)
11. On a robust view of the proceedings, as taken by the Court of Criminal
Appeal, the defects in the summing up arising from the
misunderstanding as to
whether the charge was laid under s. 283 (1) or s. 283 (2), did not lead to a
substantial miscarriage of justice
because no issue was drawn at the trial,
nor, on the facts, could it have been drawn, on the proof of the only element
that distinguished
the two offences. It could not be suggested, on any view of
the facts, that the act of the applicant in firing several shots into
a group
of people was not an act of such a nature as to endanger human life. In fact,
of course, it did endanger human life, by reason
of the injury occasioned to
Ugle. (at p605)
12. However, there is another difficulty that emerges in respect of the trial
on the first count. That count alleges, inter alia,
that the applicant
discharged a loaded firearm at Wynne. In his charge to the jury, the trial
judge emphasized this element of the
offence, telling them more than once that
they must be satisfied beyond a reasonable doubt that the applicant shot at
Wynne, and
that if they were not so satisfied then they should return a
verdict of not guilty. At one point he said:
". . . What you must consider in this context is whether you are
entirely satisfied that the Crown has proved that the accused
shot at Wynne.
If you are not so satisfied then, of course, you will say so by finding the
accused not guilty of that charge.
On the other hand, if you are satisfied that the accused fired a lethal
weapon at Wynne then you must consider the next element
of the offence: Did
the accused shoot at him with the intention of killing him?"
In that respect, the charge was impeccable. However, it is argued that there
was no evidence upon which a reasonable jury could have
been satisfied of such
a fact. The submission is based, in the first place, on the premise that there
is no evidence to show that
the applicant knew that Wynne was among the group
at which he fired. We propose first to examine the premise in the light of the
evidence, before considering its relevance to the case. (at p605)
13. When the applicant was interviewed by police officers, he answered
questions readily and signed a written statement, and at
the trial he did not
resile from anything he had said on the earlier occasion. In the course of the
interview he was asked: "Did
you see Graham Wynne there?" He answered: "No. I
thought he was among the mob, but I found out later that he was not there." In
the
course of his statement he said:
"The reason I tried to shoot them blokes was because I thought Graham
Wynne was one of them; they came there to cause trouble."
At the trial, in examination in chief, the applicant said that he did not see
Wynne that night. In cross-examination, the following
exchange occurred:
"What did you want to kill Graham Wynne for? - Graham Wynne is a trouble
maker. He's a pug.
That's why you wanted to shoot him dead? - At that moment, if I knew he
was there, yes.
That's why you fired the rifle at them, is it? - I did not fire the
rifle at him because I did not know he was there.
You said to the detective-sergeant that you wanted to kill him? - Yes,
but at the time I didn't know he was there. Can you
understand that?"
Later in cross-examination, the Crown Prosecutor returned to the subject:
"The reason you tried to shoot them was because you thought Graham Wynne
was one of them and you wanted to kill him. I am just
reading really from your
statement. That is what was in you mind, is it not? - Yes, but at that time I
did not know Graham Wynne
was there." (at p606)
14. There was a great deal of evidence to the effect that Wynne was in fact
among the group at the time of the shooting, and there
was no evidence to the
contrary. There is also the inference to be drawn from the reason given by
some witnesses for the "invasion"
of Simpson Street, namely, so that Graham
Wynne could have a fair fight with Miller, and generally from evidence
pointing to Wynne
as the leader of the invading group. (at p606)
15. Our conclusion in this regard, therefore, if it matters at all whether the applicant knew that Wynne was among the group at which he fired, is that there was evidence upon which the jury could have answered the question in the affirmative notwithstanding his consistent denial in evidence that he possessed such knowledge. (at p606)
16. But does it matter? The real question for the jury was whether the applicant had shot at Wynne, as a matter of objective fact. If a person shoots at another person without knowing the identity of that person, then clearly he is shooting at that person, whoever the person is. (at p607)
17. But even if such a line of reasoning is sufficient to put in its proper perspective the denial by the applicant of any knowledge of the presence of Wynne, the basic question remains to be considered. Is there any evidence upon which a jury could find that the applicant shot at Wynne? This brings us to the second aspect of the submission. (at p607)
18. It will be sufficient, in order to consider this question, to take the
account of the shooting as given by the applicant himself.
In the course of
his interrogation by police officers, he outlined the events in the following
words:
". . . they all started throwing bricks and that's when I pulled the
rifle out from the coat. And then when I fired about five
or six shots in the
air first they all started running up the hill, and that's when I put the
rifle down lower and started firing
at them. Then when they was at the top of
the hill I heard a bloke shout, and then they must have picked him up. . . .
"
The interview then proceeded on a question and answer basis as follows:
"How many times did you fire the rifle at any of the persons? - I'm not
too sure. About ten shots. When I looked at the magazine
there were still some
bullets in it. It was a 14 shot Magazine.
Did you intend to kill Perry Ugle or any of the other people you shot
at? - The only bloke that I really wanted to kill was
Graham Wynne because he
is the trouble maker. He is the leader.
. . .that you might kill some one or cause them serious injury? - I knew there was only one way to stop this and this was to get them.
You said that you lowered the rifle and fired at them. Did you realise
. . .bunch and he was running up the hill."
Where abouts was this person when you shot him? - They was all in a
19. At his trial, the applicant gave evidence in his defence. He did not
challenge in any way the evidence of police officers as
to what he had told
them; indeed, the account he gave from the witness box was remarkably
consistent with his earlier statements,
save that in evidence he said that
only some of the mob had started running away when he fired the shots up in
the air. The relevant
passage of his examination-in-chief is as follows:
"You told us that you fired five shots up in the air? - Yes.you lower the rifle? - Yes.
What did you do next - after you'd fired the five shots in the air? Did
At whom? - At the crowd.Some of them started running.
I beg your pardon? - At the mob.
What was happening? What were they doing when you lowered the rifle? -
Not all of them? - No.throwing bricks and that.
What did the ones who didn't do? - The little cheeky blokes kept
About 10 altogether? - Yes.corner they was gone.
Then what happened? - They all started running up the hill.
Go on? - At the time I was wild so I chased them and when I got to the
. . . "In cross-examination, the following exchanges occurred between the Crown Prosecutor and the applicant:
20. It seems to us that the conclusion to be drawn from the evidence is clear
enough. Having fired some shots into the air, the
applicant then lowered the
rifle and discharged several shots into the group. At least some of these
shots were fired as the whole
group were running up the hill to get away from
the applicant, with him in pursuit. There is no suggestion that he
deliberately singled
out any particular member of the group and aimed the
rifle at that person. He simply fired indiscriminately into "the mob". Can it
then be said that there is evidence if the jury chose to accept it that he
fired at any particular person? In our opinion it can,
provided that the
"target" is sufficiently confined to represent what may be described in the
circumstances as a single entity. It
seems to us to be a matter of common
sense to say that if there are a number of people running in the same
direction, and they are
running so closely together to be described as a
"bunch", as the applicant described them in this case, then a person who
throws
a brick or discharges a rifle at the group can as a matter of fact be
said to be throwing that brick or directing that shot at each
and every member
of the group. (at p609)
21. The problem does not appear to have arisen in this form in previous cases, although there are some old cases which tend to support the view which we have expressed. (at p609)
22. In Reg. v. Fretwell (1864) L & C 443 [1864] EngR 50; (169 ER 1465) a prisoner was indicted for shooting at L. with intent to do him grievous bodily harm. The jury found that the prisoner had fired into a group intending generally to do grievous bodily harm and had thereby wounded L. It was held that he had been rightly convicted of the felony, the jury's verdict being upheld unanimously by the Judges of England upon a case reserved. (at p609)
23. In our opinion, this decision is not to be explained simply on the basis that L. was the member of the group who was actually hit. The question does not fall to be determined by reference solely to the result, because the fact that a person fails to hit a target does not require the conclusion that he did not fire at it. (at p609)
24. In R. v. Bailey (1800) R & R 1 [1800] EngR 9; (168 ER 651) the prisoner, a sea captain, was indicted for wilfully and maliciously shooting at one Henry Truscott. It happened that the prisoner had caused his ship's cannon to be discharged without justification at another vessel the Admiral Nelson wounding the crewman Truscott severely in the arm. It had been asserted by the prisoner that he had fired at the ship and not the person named in the indictment (Truscott). Lord Eldon told the jury that he was of the opinion that if they thought the guns were fired at the vessel and those on board her generally, that the guns might be considered as shot at each individual on board her and therefore at Henry Truscott the person named in the indictment. It is reported that the Judges of England to whom Lord Eldon had referred the case for opinion on another point were also of the general opinion (without particularly deciding) that the conviction was proper on other points (1837) 2 M & Rob 39 (174 ER 206) . (at p610)
25. It follows then, in our opinion, that there was evidence upon which a jury could find that the applicant shot at Wynne. (at p610)
26. We turn now to a consideration of the second count in the indictment, and the attack that is made upon the trial in relation to it. The applicant alleges error of law in that the trial judge directed the jury that the defence of self defence was not open on the evidence. It is conceded that the trial judge did give such a direction. The defences of self defence and defence of property were both left to the jury on the first count, and the defence of property on the second count. (at p610)
27. In his reasons for judgment in the Court of Criminal Appeal, Wickham J.,
with whom the other members of the Court agreed, said
as to this ground:
". . . the jury by its verdict on the first count negatives self defence
and defence of property. By its verdict on the second
count it negatived
defence of property. In my opinion it would be fanciful to think that the
verdict on the second count might have
been different had the Judge left self
defence of the person to the jury as a possible defence on that count. The
failure to leave
it was, in my opinion, wrong but having regard to the view
which the jury must have taken as to the whole matter it made no difference.
Further, I would not consider it to be an omission which was a substantial
miscarriage of justice as either affecting the result
or the reasonable
regularity of the trial process." (at p610)
28. For the purpose of dealing with this application, we are prepared to
accept the proposition that the trial judge's direction
in this regard was
wrong. Indeed, we did not understand the Solicitor-General to contend
otherwise. However, we would observe in
passing that the judge may well have
been correct to say that in relation to the second count self defence was not
open on the evidence.
It would seem that Ugle was shot in the closing stages
of the incident. The applicant said to police officers that he (Ugle) was
then
"at the top of the hill", and in the course of cross-examination at the trial
he gave the fact that he was wild as one reason
for his having chased them and
continued to fire at them. Whatever substance there may have been in the
defence of self defence at
the beginning of the incident when the applicant
was first confronted by "the mob" would seem to have disappeared by the time
Ugle
was shot. Of course, if this was how the trial judge saw the evidence,
then one would have expected him to indicate to the jury why
self defence was
to be considered in relation to the first count but not the second;
furthermore, the same reasoning would seem to
be applicable to the defence of
property question. (at p611)
29. But it is not necessary or helpful to pursue this aspect of the matter. It is sufficient to observe the inherent difficulty confronting the applicant in advancing self defence as an excuse for shooting a man in the back as he ran away. (at p611)
30. For ourselves we would be prepared to accept the conclusion of Wickham J. as a proper one in relation to all the grounds of appeal which were canvassed before the Court of Criminal Appeal. (at p611)
31. However, a further ground of appeal was advanced in the hearing of this
application. It reads as follows:
"(iv) In relation to both counts the learned Trial Judge erred in
failing to directly answer in a meaningful way a request
for further
directions received from the Jury following their retirement." (at p611)
32. In the course of their deliberations, the jury returned to put a question
to the trial judge. The question was this:
"Could we please be advised on a point of law? If the accused discharged
a gun at a group of people, thinking that amongst
that group was a person he
intended to kill or harm, can the accused be found guilty if the person to be
harmed or killed be not
hit by the bullet?"
The trial judge then repeated the direction relating to an attempt to commit
an offence which he had given earlier in his charge,
and then proceeded:
"If an accused fires into a group, thinking mistakenly that amongst that
group is a person who he intends to kill and he hits
somebody else, he can be
convicted of attempting to kill the man at whom he thought he was firing." (at
p611)
33. As we have already seen, any direction on an attempt to commit an offence
was irrelevant to a trial of the offences alleged
in the indictment. The trial
judge appears to have understood the jury's question to have been concerned
with the question of impossibility
to commit an offence which is attempted,
and his response does not answer the question. It is surprising that it
apparently satisfied
not only the jury, but both counsel. Yet it will be noted
that if one disregards the word "mistakenly" in the last paragraph which
we
have quoted, the passage which remains does represent a substantial answer to
the question asked by the jury. (at p612)
34. A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of grave import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury. Counsel for the applicant argued that it had this effect in the present case, because it had the effect of withdrawing from the jury the express injunctions he had given earlier in the charge that they must be satisfied beyond a reasonable doubt that the applicant had shot at Wynne. That is an argument that commands respect, yet we are not persuaded that it leads to a decision in favour of the applicant. There are three reasons for our conclusion. In the first place, we do not think the re-direction can reasonably be supposed to diminish the impact of the clear and emphatic directions with which the trial judge repeatedly charged the jury to be satisfied that the applicant shot at Wynne. We have already cited one of those passages. The very irrelevance and consequent obscurity of the direction contributes to a limitation of its effect. There is nothing in the question to suggest any doubt in the mind of the jury as to whether Wynne was present among the invading group, and we do not think that the answer given by the judge could be said to have introduced any such doubt. The important factor underlying this consideration must be the fact admitted on all sides that Wynne was present. The second reason is that in our opinion the jury's question called for a simple answer in the affirmative, and the verdict of the jury is wholly and only consistent with the application of such a proposition to the facts of the case. The third reason is that the failure of the applicant to raise this point specifically as a ground of appeal to the Court of Criminal Appeal tends to confirm a conclusion that the misdirection when placed in a proper perspective did not cause a substantial miscarriage. (at p612)
35. In any event there always remains a fundamental consideration in a criminal matter which reaches this Court, and that is the question as to whether the case is a proper one for the grant of special leave. It seems to us that a case of this kind, involving misdirection and the consequent evaluation of the likely effect of such misdirection on the jury with a view to determining whether there has been a substantial miscarriage of justice is one particularly suited to the experience of a Court of Criminal Appeal. In our opinion, this case does not involve any point of law of general public importance, and neither the conduct of the trial nor the verdict have been shown to be so unsatisfactory as to warrant the intervention of this Court. We would therefore refuse the application for special leave. (at p613)
MURPHY J. I agree with Gibbs J. (at p613)
ORDER
Application for extension of time in which to lodge application for special leave to appeal granted.Application for special leave to appeal granted.
Appeal allowed.
Quash the convictions and order a new trial.
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