The Queen v Murray[1999] QCA 341

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 491 of 1998

Brisbane

THE QUEEN

v

WILLIAM JOHN MURRAY

Appellant

McMurdo P

McPherson JA

Atkinson J

Judgment delivered 24 August 1999

Joint reasons for judgment of McMurdo P and Atkinson J, McPherson JA dissenting.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 24 August 1999

1. The appellant, who was found guilty at his trial in the Supreme Court at Brisbane, appeals against his conviction on a charge under s 302(1)(a) of the Criminal Code of murdering Tony Celap at Yarraman on 18 August 1997. The notice of appeal sets out a total of some 10 or more grounds, but at the hearing before this Court the appeal was confined to only one of those specified in para.9.  It is that:

"Cardinal lines of defence had been placed before the jury, but had not been referred to in the summing up. In particular s 271 self defence; s 267 defence of a dwelling; s 23 independence of will/accident".

Of these matters, only the last was relied upon in this Court; that is to say, that the act which killed the deceased Celap occurred independently of the will of the appellant.  It may be remarked at the outset that, in relation to murder, it was not a matter relied on or referred to by the defence at the trial either in addressing the jury or in any application for redirections after the summing up. Counsel for the defence did not contest the suggestion from the Crown that a direction on s 23(1)(a) of the Criminal Code was not called for. However, on appeal it was conceded by the Crown that the summing up was inadequate or defective in that particular; but it was submitted that the conviction should be allowed to stand in the exercise of the power conferred by s 668E(1A).

2. The prosecution evidence is that Celap, who was a man aged 21 years, died from the effects of a shotgun wound to the left hand side of his chest. The wound was inflicted by pellets from two cartridges fired simultaneously from a double‑barrelled shotgun held by the appellant at a distance of between three and five metres away from Celap. As a result, his left lung was "shredded", and he died, perhaps immediately but almost certainly within about 10 minutes of receiving that wound, through the combined impact of an inability to breathe and loss of blood.

3. The Crown case at the trial was that the appellant deliberately fired the shotgun at Celap with the intention of killing him. Celap and the appellant, who was aged 49 at the time of the killing, lived in Yarraman (which is a town of about 600 inhabitants) and both had done so for some years. In May 1992, when Celap was about 15 years old, there had been an incident in which he and a young companion, who was visiting from Sydney, broke into the appellant's house, "trashed" the place, and stole various items of property, for which they were subsequently dealt with in the Children's Court. According to evidence given at the murder trial, the appellant was very angry at the time of the theft in 1992, and had, in the presence of the investigating police officers, threatened the two boys, saying "If I catch you little pricks, I'll kill you". On two or three later occasions in the intervening years before the killing, he had also told a neighbour Mrs Venz how angry he was that someone had broken into his house, and that "one day he would get him for it". Furthermore, in a reference to Celap when the police arrived at the scene soon after the killing was reported, the appellant said to Senr Const M T Bindon that the deceased "is a shit, that bloke. He has broken into my house before".

4. The appellant, who gave evidence at his trial for murder, said he did not recall making remarks like those attributed to him by the prosecution witnessers, although he did not expressly deny having done so. His account was that he had settled his differences with Celap and, on the night of the latter's death, he had been buying drinks for him at the Imperial Hotel. Afterwards and at the invitation of the appellant, Celap had come home with him to his house and was sitting drinking in a chair in the lounge when the appellant went to the toilet. As he was doing so, Celap called out to him something to the effect that he remembered the place now; that he was going to bash the appellant; and that "I'm bigger now, cunt. Get out here and have a go", or words to that effect.  At the time, the appellant believed he was referring to the housebreaking incident in 1992.

5. After going to the toilet, the appellant went into the bedroom and took the shotgun, which was under the bed, and which he knew was loaded. Carrying it in his right hand, he walked back through the hallway to the lounge. Celap was, he said, yelling out and threatening him, and the appellant didn't really think he would have a chance if he was involved in a fight with him. He just wanted the deceased out of the house, and thought he would frighten him with the gun and he would go.

6. The appellant gave evidence that, as he arrived in the lounge, Celap started to get up from the chair, in which he was sitting "sort of twisted over" to his right side. The appellant said he was then about nine feet away from Celap, who was standing up about half way out of the chair when the appellant raised the gun and pointed it at him. Then, according to his account of it at the trial, Celap's left hand "shot out" toward the appellant in a "backhand ... throwing type of movement", and the appellant felt something strike him on the head. At that moment the shotgun discharged and Celap was struck by the shot from both barrels, which penetrated his chest on the left side and killed him. According to the appellant, he was then holding the gun about waist high.

7. There were two matters in evidence capable of lending support to the appellant's account of what had happened. The first was that, when he was medically examined afterwards, Dr Carr identified a little puncture wound in the mid‑forehead area between the eyebrows from which a trickle of blood had come, as well as a 2 mm scratch on the appellant's nose. Both cuts were recent.  The inference invited was that these wounds had been caused by something thrown by Celap when he thrust his left hand out in the manner described by the appellant.

8. The other, and perhaps more compelling item of evidence, was that the shotgun was a very old one, and it was in an unsafe condition. Sgt Graham who later tested it said it was prone to "sympathetic" discharge; that is to say, if one barrel was fired, it caused the other barrel to discharge as well. No doubt this explained why shots from both barrels struck the victim, and why neighbours heard the sound of only one explosion. What was more important, was that, according to Sgt Graham, one of the triggers was "certainly quite light". Whereas a trigger pressure of 1.1 kg was acceptable, the rear trigger on this gun had a trigger pressure of approximately only 1 kg. On the other hand, although the gun was capable of being discharged by hitting it around the barrel with a mallet, Sgt Graham found it was not capable of being discharged by hitting it with his bare hands or by dropping it, while cocked, on a rubber mat from heights of between 45 to 55 cms.

9. At the trial, the Crown's response to the appellant's version of what had happened was that it was a complete fabrication on his part. In addressing the jury, prosecuting counsel described it as "a pack of lies" and, at one point in his address, "absolute rot". The addresses are not reproduced in the record on which the appeal was argued in this Court; but, after obtaining and studying a transcript of them, it is evident that the prosecution set out to persuade the jury that the account given in evidence by the appellant was completely incredible and should be rejected outright by the jury. The prosecution case, said Mr Bullock of counsel for the Crown:

"Comes down to four points in my submission: the accused lured the deceased to the house; shot him almost straight away; the shots were deliberate with the relevant intent which I will come to. We don't know the precise reason that might, what precisely set him off that night; but no doubt it was associated with brooding, sitting next to the deceased and in the hotel."

10. In inviting the jury to reject the appellant's evidence of what had happened there was some cogent evidence in support of the prosecution case. As regards the projectile or object (which was never found) that was said to have hit the appellant in the head when, or perhaps momentarily before, the shotgun discharged, there was evidence that, at the time or soon afterwards, the appellant was not himself conscious of the lacerations on his forehead or nose. When Snr Const Bindon arrived at the house after the shooting, he noticed a trickle of blood in the appellant's forehead and nose and droplets of blood on his shirt.  He asked the appellant if it was his blood, to which he responded "I don't know what you are talking about". The hypothesis advanced by the Crown was that the cuts on the plaintiff's forehead and nose might have been caused by the springing of one of the hammers on the shotgun when it discharged while the appellant was sighting along it, and consequently holding it close to his face; but, whatever the cause, there was some reason to suppose that the appellant's claim to have been hit on the head was an explanation invented after the occasion.

11. The suggestion that Celap was halfway out of the chair and in the process of standing up was, according to the Crown, directly contradicted by the presence of exit holes made by pellets passing through Celap's back, which could be directly matched with entry holes in the back of the chair in which he was seated and with further such holes in objects behind the chair. The competing inference was that he was shot sitting down in the position in which he was afterwards found dead. The appellant's testimony that Celap was in the course of standing up also conflicted with the undisputed evidence that, after death, he was still holding in his right hand a beer bottle balanced on his knee, and that another full bottle of beer was found standing on the floor behind his right leg. If he had been standing or half way through standing up, one or both of those bottles would have been disturbed when or before he was shot and fell back into the chair. As regards the so-called "backhand sort of throwing motion" with his left hand, the forensic evidence was that there were lacerations in the area of the victim's left wrist, and bruising and wounding in the skin of the lower and upper aspects of the left upper arm.  The inference which the prosecution invited the jury to draw was that, seeing the gun being pointed at him, Celap had held out his left hand in a desperate attempt to ward off the shot that was aimed at him. The evidence, so far as it went, was that he was naturally right-handed.

12. The prosecution case at trial that Celap was sitting down, and neither standing up nor beginning to do so, was, it may be thought, supported by the evidence, or so the jury would have been entitled to conclude. If they did so, it is reasonable to assume that they would also have rejected the whole of the appellant's account of what happened, including his assertion that the shotgun had discharged without any intervention on his part.  As to that, the appellant in cross-examination said he knew the gun was loaded and that it must have been cocked ready to fire, which was something he admitted he intended when he pointed it at Celap.  Although he said he did not know why the gun went off, or whether he could have pulled the trigger, he nevertheless agreed that his finger would have been "somewhere around the trigger guard there" and that it "could well have been" on the trigger.  In addition, afterwards,  on three separate occasions on the night in question, and to three different persons (his neighbour Mr Venz, Snr Const Bindon, and his own son), the appellant said he had "shot someone", and was "in deep shit".

13. In this state of things, it was for the jury to decide whether the evidence, and in particular that of the appellant himself, raised in their minds any reasonable doubt that he had shot Celap with the intention of killing him.  As to that, the defence had in addressing the jury sought to meet the Crown case on its own ground. Factually, the strongest point was the improbability that someone would have been murdered for something which had taken place so many years before. With respect to the suggested motive for the killing, defence counsel submitted to the jury:

"Perhaps the best way of disposing of the question of murder is simply this: Why, if you decided to kill Tony Celap, on that night of all nights, would you bring him home and kill him, in your own chair and then ring the police ?  It just simply makes no sense ...".

Because the prosecution were alleging murder, "they must, of course, prove it beyond reasonable doubt, and what they are intending to prove is that my client intended to cause the death of or do grievous bodily harm to Tony Celap".  As to that, after referring to the evidence, defence counsel put to the jury that "this was simply a tragic accident where a gun, perhaps as unsafe as [a] gun can be, went off both unexpectedly and unintentionally whilst being held by my client".

14. On appeal, it was said that the direction given to the jury by the learned trial judge was nevertheless wrong or inadequate in failing to deal with the possibility that the discharge of the shotgun was an act that, within the meaning of s 23(1)(a), had occurred independently of the exercise of the will of the appellant.  It has already been mentioned that at no time was any such direction requested at trial. But, quite apart from that consideration, it is not altogether clear whether the submission on appeal is to be understood as meaning that there was no act at all on the part of the appellant; or, alternatively, that there was an act on his part but that it was "involuntary" or unwilled. Perhaps in the end it does not matter; but s 23(1)(a) is expressly predicated on there being an "act" (or omission) by the person who seeks to rely on it, for which he or she is excused from criminal responsibility if it occurs independently of the exercise of the will of that person: see Kaporonowski v The Queen (1973) 133 CLR 209, 226-227. For this purpose, Mr Long of counsel for the appellant identified the "discharge" of the shotgun as the relevant "act".  It might perhaps have been thought that the relevant act was the exertion of pressure on the trigger; for, once that takes place, the gun would, in accordance with its designed mechanism, ordinarily discharge without any further human intervention if it was loaded and ready to fire.  There is, however, authority in The Queen v Falconer (1990) 171 CLR 30, 39, 81, to the effect that it is, as Mr Long submitted , not the pressing of the trigger but the discharge of the firearm which constitutes the "act" for the purpose of s 23(1)(a), and it is on this basis that this appeal ought to be considered.

15. With respect to that question, her Honour in summing up at the trial directed the jury in the following terms:

"Turning to the charge of murder, the Crown has to prove that the accused intended to kill or to do grievous bodily harm.  The question is whether he had that intent at the time of the act which caused Celap's death."

Later she said:

"What was his intent ?  Was it just to frighten Celap and drive him out of the house rather than to kill him or to cause him grievous bodily harm ?  If you find that his intent was just to frighten him and drive him out of the house, then you should find him not guilty of murder".

It is true that, at another point in the summing up, her Honour referred to murder as well as manslaughter in the context of an event which occurs by accident.  This was evidently a reference to s 23(1)(b) of the Criminal Code, and, in relation to murder under s 302(1)(b), it was a potential source of confusion. Authority now confirms that s 23(1)(b), or its approximate equivalent s 31 in the Northern Territory Criminal Code, has no application to a charge of murder which, as in the case of s 302(1)(a), requires proof by the Crown that the offender intends "to cause" death or grievous bodily harm.  See Charlie v The Queen (1999) 73 ALJR 809. It follows that if either death or grievous bodily harm is in fact intended, it cannot qualify as an "accident" for the purpose of s 23(1)(b) of the Code.  See R v Taiters [1977] 1 Qd R 333, 336.

16. But this error, if that is what it was, in her Honour's summing up was retrieved when, some time after retiring, the jury returned with a request that the learned judge "restate and further clarify for us the definitions of murder and manslaughter and in particular what is meant by 'intent' ...". In response to that request, her Honour explained:

"The big distinction between murder and manslaughter is that, with murder, there has to be an intent in this - in a case such as this, an intent to kill the person or to cause the person grievous bodily harm ... Now the intent has to be an intent at the time the act is committed, so that on the night in question when they got back to the house, did he then intend to kill or to cause grievous bodily harm."

After this redirection, counsel were asked whether there was anything they wished to say in relation to it.  No redirection was sought, and the jury retired at 5 pm, returning at 7.30 pm with a verdict of guilty of murder.

17. In giving that redirection, her Honour did not specifically identify the "act" causing death which, in order to constitute murder under s 302(1)(a), must be accompanied by the requisite intention; but, accepting on the authority of Falconer v The Queen that it was the discharge of the shotgun, it is clear that the direction accorded with the case being presented against the appellant by the Crown at the trial.  It will be recalled that it was that the appellant had lured Celap to the house with the intention of killing or inflicting grievous bodily harm on him, and had then carried out his purpose of doing so. No doubt the onus on the prosecution of proving that the appellant had such an intention from the outset would not have been light; but it was one that counsel for the Crown explicitly undertook at the trial and which, by their verdict, the jury found to have been established to their satisfaction beyond reasonable doubt.

18. The question remains whether the direction given by her Honour on appeal was inadequate  because it failed to explain to the jury that the discharge of the shotgun might have been an act which, within the meaning of s 23(1)(a), occurred independently of the exercise of the will of the appellant. There are statements in The Queen v Falconer (1990) 171 CLR 30, at 40, 67-68 and 81, which suggest that in circumstances like these such a direction is required. Subsequently, in Griffiths v The Queen (1994) 69 ALJR 77, 80 col 2, Brennan, Dawson and Gaudron, speaking of "the common situation" where the evidence simply reveals that the alleged offender, being presumably of sound mind, consciously did the act which is an element of the offence charged, said:

"Commonly, evidence of that kind is sufficient to discharge the Crown's ultimate onus of proof unless the alleged offender adduces or is able to point to some evidence which suggests that the doing of the act was involuntary. In the absence of any such evidence, it is frequently unnecessary and inappropriate of the trial judge to give a specific direction about voluntariness. That is the position when, in the circumstances revealed by the evidence, human experience would regard the act as having been done under the conscious control of the doer."

19. Here there was evidence that suggested that the act might have been involuntary.  At the same time, however, it may be noted that the question in Griffiths v The Queen was not whether the appellant was guilty of murder of which under s 302(1)(a) intention is an element, but of manslaughter in circumstances in which the Crown was bound to prove either that the firearm had discharged voluntarily, or that it was at the time under his control within the meaning of s 289. Moreover, the reasons of their Honours in that case twice referred with approval to the decision in R v Mullen (1938) 59 CLR 124, doing so in the first instance (69 ALJR 77, 78 n1) as authority for saying that "the onus of negating the application of s 23 rests in the Crown"; and on the second occasion (69 ALJR 77, 79 n9) as relating "to the elements of accident under the Criminal Code (Qld) ...".

20. In explaining in R v Mullen (1938) 59 CLR 124, 127-128, that, in the case of wilful murder, "accident" did not raise a claim to exemption from criminal responsibility under s 23 of the Criminal Code, Latham CJ said it was unnecessary to have recourse to it where intention was expressly made an element of the offence. A defence of accident, his Honour said, was really a contention that the Crown had not proved an essential element of intention in the crime charged. See also what was said by Dixon J in the same case (59 CLR 124, 137); and cf Lilly (1984) 12 A Crim R 225, 241-242. The facts of Mullen can be gathered from the report of the decision of the Court of Appeal in Mullen v The King [1938] St R Qd 97, at 97‑100. From that source, it appears that, according to the accused's account of it, the fatal shot took place in the course of a struggle with the deceased in circumstances which would equally have attracted a claim that it was "involuntary" under what was then s 23 and is now s 23(1)(a) of the Code. On appeal Latham CJ and Dixon J nevertheless approached the question simply as one of intention to kill under s 302(1)(a), or its equivalent in 1938, which was then s 302(1). Their Honours plainly accepted that proof that the accused had intended to kill "negated" the application of s 23(1), which at that time embodied both what is now s 23(1)(a) (independency of will), and s 23(1)(b) (event occurring by accident). It was as Latham CJ said (59 CLR 124, 130) "an essential part of the Crown case to negative accidental killing".

21. In the present case, there was at trial evidence from both the appellant himself and Sgt Graham that was capable of raising a doubt whether the discharge of the shotgun may not have been an "accident" in any sense in which that word can be used. There are obvious practical difficulties in explaining to a jury that they are required to consider such evidence twice over; that is, once for the purpose of deciding whether the discharge of the shotgun was involuntary under s 23(1)(a), and then again for the purpose of deciding whether the appellant intended to kill or do grievous bodily harm under s 302(1)(a). To most ordinary people untutored in the subtleties of s 23(1)(a), it would seem contrary to logic and common sense to be told that, having found that the appellant had not only intended to cause death or grievous bodily harm but had succeeded in carrying that intention into effect, he must nevertheless be acquitted if his act might have been one that took place "unconsciously" or independently of the exercise of his will. Except where an individual was acting while sleep‑walking, or under the influences of concussion, or in a state of dissociation or the like, a claim to exemption under s 23(1)(a) is as a matter of fact ordinarily irreconcilable with an intention to cause the very result that is achieved by means of it. The appellant's case here was not of the exceptional kind described above, nor was it one in which the intention to kill was separated from the fatal act, as arguably it was in Thabo Meli v The Queen [1954] 1 WLR 373, or Shoukatallie v The Queen [1962] AC 81.

22. In the context of the evidence at the trial in the present case, the appellant was entitled to be acquitted if the evidence suggesting that the shotgun discharged accidentally raised a reasonable doubt about his intention to kill or do grievous bodily harm. If it did not, there was no point in revisiting the same evidence to ask if it raised a reasonable doubt whether the shotgun had discharged independently of the exercise of his will in terms of s 23(1)(a). Factually, the two questions were the same in this case and raised a single issue, which, stated in its simplest form, was whether the killing of Celap was deliberate. It is true that her Honour did not expressly refer the jury to s 23(1)(a). But there was no need to do so, provided that the essential question of fact for their decision was fully and fairly presented to them, with an appropriate direction as to the burden of proof. A trial judge is not bound to refer the jury to the express terms of a specific section of the Code creating an element of the offence, much less to favour the jury with a dissertation of law on the subject: R v Whiting [1995] 2 Qd R 199. It is enough if the critical matter of fact is formulated for their decision in such a way as to enable them to appreciate that, if the evidence does not establish it beyond reasonable doubt, then the prosecution has failed to prove guilt and the accused must be acquitted: cf Alford v Magee (1952) 85 CLR 437, 466.

23. It was essentially in that form that the learned judge set out to direct the jury at the trial in this instance. Unfortunately, in doing so, her Honour formulated the question for the jury as involving a straight choice between the case for the prosecution and the version of events given by the appellant in his evidence at the trial. In a passage in the summing up, which has been set out earlier at para 15 of these reasons, she said that the Crown had to prove that the accused intended to kill or to do grievous bodily harm, and that "the question is whether he had that intent at the time of the act which caused Celap's death". No complaint could be or was made to the correctness of that direction.  The problem is, however, that her Honour went on, in the second of the two passages already set out in para 15, to ask:

"What was his intent ? Was it just to frighten Celap or drive him out of the house rather than to kill him or to cause him grievous bodily harm? If you find that his intent was just to frighten him and drive him out of the house, then you should find him not guilty."

The defect in this formulation is that it invited the jury to acquit if (and, by inference only if) they made an affirmative finding that the appellant's intention was to frighten Celap and drive him out of the house. So to direct the jury was incorrect because in law it was sufficient to attract a verdict of acquittal that the appellant's testimony, considered alone or with other evidence at the trial, raised in the minds of the jury a reasonable doubt about his intention at the time the shotgun discharged.  It was not necessary for the jury to go so far as to find affirmatively that his intention was, as he had testified, simply to frighten Celap.

24. There are other passages in the summing up in which a similar defect is apparent.  In dealing with the question of criminal negligence under s 289, her Honour said:

"If you accept the accused's version of what happened that night, in whole or in part, you are going to have to evaluate his conduct and decide whether it was conduct such as to amount to criminal negligence."

And then again:

"One factor which you may consider in deciding upon whether you accept the accused's evidence is how much, if any, did the accused really know about the faults in the gun?"

Although specifically concerned with the issue of manslaughter, a direction in this form could only have served to confirm in the minds of the jury the impression that they were expected to choose between accepting the evidence of the appellant, in which event, they were to acquit; or, alternatively, accepting the case for the prosecution, in which event they would be entitled to convict. That was, with respect, wrong in law because it failed to accommodate a third possibility, which was that, even if they were not prepared to accept his evidence wholly or in part, it and other evidence, including that of Sgt Graham, might nevertheless suffice to raise a reasonable doubt whether he had the necessary intent to kill or do grievous bodily harm. If the appellant's evidence, even if not accepted wholly or in part, raised a reasonable doubt whether his intention was only to frighten Celap, it might also have raised a doubt whether he in fact possessed the intention to kill or do grievous bodily harm. Factually, the two questions were not mutually exclusive, and in relation to both of them the prosecution carried the onus, as to the first, of eliminating any reasonable doubt, and, as to the second, of proving beyond reasonable doubt that the appellant had the intention required under s 302(1)(a). The direction, in the way it was presented to the jury, went at least part of the way to transferring to the appellant the onus of proving that his intention was as limited as he had testified it was, which was contrary to the decision in Mullen v The King [1938] St R Qd 97, 114, 118, 121; and, on appeal (1938) 59 CLR 124, 130, 136, 138.

25. It is therefore not possible to say that the appellant was not deprived at his trial of an opportunity of acquittal that he might otherwise have had. Because the summing up involved an error about something as fundamental as the burden of proof, the appeal is not one in which it is proper to apply s 668E(1A) in order to sustain the verdict. The result is that the appeal must be allowed, and the conviction and verdict set aside. There must be an order for a new trial.

JOINT REASONS FOR JUDGMENT - McMURDO P and ATKINSON J

Judgment delivered 24 August 1999

1. We have read the reasons for judgment prepared by McPherson JA who has set out the facts and the issues in this case.

2. The prosecution case was that the appellant discharged his gun killing the deceased with the intention of killing him or doing him grievous bodily harm.  The defence case was that the appellant fetched his loaded shotgun from his bedroom to frighten the deceased.  He held it in his right hand; the deceased started to rise out of the chair and his arm shot out hitting the appellant in the head.  The gun went off without any intention on the appellant's part.

3. The learned primary judge directed the jury in respect of s 23(1)(b) of the Criminal Code consistent with R v Taiters^[1] and as to criminal negligence.  There is no complaint as to the summing up in that respect.

4. Section 23(1)(a) of the Criminal Code which provides that a person is not criminally responsible for an act which occurs independently of the exercise of his will should on these facts also have been left to the jury for the reasons given by McPherson JA even though no such direction or redirection was sought at the trial: Gipp v The Queen.^[2]  It was for the jury to decide whether they were satisfied beyond reasonable doubt that the appellant deliberately performed an act leading to the discharge of the gun.

5. But the jury convicted the appellant of murder; they were necessarily therefore satisfied beyond reasonable doubt that the appellant discharged the gun intending to kill or do grievous bodily harm to the deceased.  That verdict is inconsistent with any possible application of s 23(1)(a) of the Criminal Code.  For the reasons given by McPherson JA, it is contrary to logic and common sense to conclude that the failure to give the direction in respect of s 23(1)(a) of the Code could have deprived the appellant of a chance of an acquittal.  The position would be different had the appellant been acquitted of murder but convicted of manslaughter but this omission has not deprived the appellant of an opportunity of acquittal that he might otherwise have had.  The appeal should not be allowed on this ground.

6. The next question is that raised by McPherson JA in his reasons, but not in the written or oral submissions of the parties, namely that on the issue of intention to kill or do grievous bodily harm the learned judge inadvertently partially reversed the onus of proof.  It is no answer that the matter was not raised before this Court if there has been an error on the part of the trial judge resulting in a miscarriage of justice.

7. In assessing the adequacy of a summing up an appeal court should look at the summing up as a whole rather than in isolated portions and consider the prospect of whether the jury has understood the relevant concepts: see R v CBR.^[3]

8. After telling the jury that it was up to them whether they accepted all, part or none of the evidence of any witness, the learned judge gave detailed directions as to the onus and standard of proof.  She said:

"... the prosecution, the Crown, has to prove that the accused is guilty.  He is presumed to be innocent.  He does not have to prove a thing.  He can be convicted only if the prosecution establishes that he is guilty of murder or guilty of manslaughter ...

The prosecution has to so prove beyond reasonable doubt.  That is the standard of proof and it is a very high standard in a criminal trial.  You have to be satisfied beyond reasonable doubt of the guilt of the accused.  That expression means exactly what it says.  If at the end of the day you have any reasonable doubt about an element or elements of the charge, you must acquit, but if you are not left with any such doubt, you must convict."

9. Her Honour then dealt with circumstantial evidence saying:

"To bring in a verdict based on circumstantial evidence alone, it would be necessary not only that guilt should be a reasonable influence but that it should be the only rational inference that the circumstances would enable you to draw.  If there was a reasonable possibility consistent with innocence, then it would be your duty to acquit."

and immediately added:

"Now, the accused has given evidence.  That does not mean that the burden of proof shifted to him.  His evidence is simply added to the evidence that was adduced by the prosecution and it is upon the whole of the evidence at the end of the trial that you have to be satisfied beyond reasonable doubt that the prosecution has proved its case before he can be convicted."

10. Her Honour explained the alternative verdicts open, namely guilty or not guilty of murder; if not guilty of murder, guilty or not guilty of manslaughter and explained to the jury the elements of both murder and manslaughter saying:

"... the Crown has to prove that the accused intend to kill or to do grievous bodily harm.  The question is whether he had that intent at the time of the act which caused [the deceased's] death.  That is a different question from motive.  The desire to get even with [the deceased] for having broken into his house five years earlier may supply a motive but it does not answer the question whether he had the intent at the relevant time."

11. The learned judge then dealt with the conflicting evidence as to the appellant's relationship with the deceased from the appellant, on the one hand, and the policeman Wilson and the publican Benz on the other.  In an effort to assist the jury with this conflicting evidence, her Honour said:

"... you are going to have to decide which versions of those events and conversations you accept and in deciding that it may help you to reach your ultimate conclusion on the question of intent.  What was his intent?  Was it just to frighten [the deceased] and drive him out of the house rather than to kill him or to cause him grievous bodily harm?  If you find that his intent was just to frighten him and drive him out of the house, then you should find that he is not guilty of murder.  Relevant to this will be whether you accept the accused's evidence that [the deceased] was yelling out to him while he was using the toilet, whether you accept his evidence that he was concerned for his own safety.

I come then to the question of alcohol.  Was he so affected by alcohol on that night that he did not form the relevant intent, that is, the intent to kill or cause grievous bodily harm.  If you are not satisfied beyond reasonable doubt that he formed that intent or if you are left in reasonable doubt whether he formed it, then it is your duty to find him not guilty of murder."

It is the italicised passage above that is of concern.

12. Her Honour next dealt with the evidence relating to intoxication and the issue of accident under s 23(1)(b) of the Criminal Code and criminal negligence under s 289 of the Criminal Code, saying:

"... the Crown has to establish that the accused intended that the event should occur or saw it as a possible outcome or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome. ...

...if the Crown does not establish either of these, then the event was accidental and subject to the law of criminal negligence, the accused is not criminally responsible for it."

and later:

"If you are satisfied of that, satisfied beyond reasonable doubt, then you are satisfied of criminal negligence.  So, if you are satisfied that the accused acted with criminal negligence, it will be to bring in a verdict of guilty of manslaughter.

If you accept the accused's version of what happened that night in whole or in part, you are going to have to evaluate his conduct and decide whether it was conduct such as to amount to criminal negligence."

A concern is also raised in respect of this italicised portion when combined with the italicised portion in para 11.

13. Her Honour then dealt with the evidence relevant to criminal negligence and concluded:

"In summary, ladies and gentlemen, it is up to you to decide whether the accused is guilty or not guilty of murder.  If not guilty of murder, whether guilty or not guilty of manslaughter.  ...

If you are not satisfied of all of the elements of the charge of murder beyond reasonable doubt the only honest verdict is not guilty.  If you are satisfied beyond reasonable doubt, the only honest verdict is guilty.  Similarly, if you come to the consideration of manslaughter, if you have a reasonable doubt, your verdict must be not guilty.  If you have no reasonable doubt, it must be guilty."

The jury then retired to consider their verdict.

14. Several hours later, the jury asked for a redirection in the following terms:

"Could you please restate and further clarify for us the definitions of murder and manslaughter and in particular what is meant by 'intent' and 'reasonable doubt', particularly emphasise the word 'reasonable'.  We would like to know if there is some sort of standard which applies to the word 'reasonable' in the context of 'reasonable doubt'."

Her Honour answered those questions in an unobjectionable way and some hours later they returned a verdict of guilty.

15. Her Honour's direction to the jury in respect of criminal negligence set out in para 12 above was correct in that until there was some evidence which the jury accepted and which raised accident or criminal negligence, the issue of criminal negligence need not be considered.

16. Her Honour's comments set out in para 11 above were in context an attempt to assist the jury in their fact finding role on the question of intention.  When the summing up is examined as a whole, her Honour made it clear to the jury that it was a matter for them as to what evidence they accepted; that the prosecution must prove  the elements of the offence, including the element of intention, beyond reasonable doubt and the burden does not shift to the accused because he has given evidence.

17. We are satisfied that the statements made by her Honour in para 11 above did not amount to an error in law or a miscarriage of justice.  Accordingly, we would dismiss the appeal.