Court of Appeal (WA)|2003-08-20|Before: Mr J, Murray J, Anderson J, Wheeler J

Agnew v The Queen [2003] WASCA 188 (20 August 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AGNEW -v- THE QUEEN [2003] WASCA 188

Criminal law - Murder by shooting - Directions as to unwilled act - Directions as to accident - Adequacy of directions as to alternative verdicts - Whether verdict of murder unsafe or unsatisfactory

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

Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115

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

Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62

Murray v The Queen [2002] HCA 26; (2002) 76 ALJR 899

R v Kirkman (1987) 44 SASR 591

Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41

Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56

1 MURRAY J: The appellant was indicted for the wilful murder of a Ms Williams, committed on 17 December 1999. After his trial, on 2 March 2001, the appellant was convicted of murder.

2 There is first a contention that the trial Judge did not properly or adequately direct the jury in relation to s 23 of the Criminal Code (WA), which relevantly provides that:

"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

3 This was a killing which occurred when the deceased was shot by a pistol. The contention is that both limbs of s 23 were raised by the evidence in this case, ie, that it was necessary for the Crown to negate the proposition that the discharge of the weapon was an involuntary act or that the event of the death of the deceased was one which occurred by accident, as to which it is contended that the direction should have been that the death would be an accident if it was not intended by the appellant, not foreseen by him and could not reasonably be foreseen by a person in the position of the appellant at the relevant time. The grounds refer to a suggestion that the weapon was "defective", but I think there was, in fact, no evidence that that was so.

4 It is complained that the trial Judge erred in his directions to the jury about the question of criminal negligence. The operation of s 23 is expressly made subject to the provisions of the Code relating to negligent acts and omissions. The relevant provision in the circumstances of this case would be s 266:

"It is the duty of every person who has in his charge or under his control anything ... of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; ... ."

5 It is argued that the directions of the Judge did not make clear to the jury that the negligence required to displace the defence of accident is such a degree of recklessness as justifies the description gross. Further, it is argued that the Judge's directions about s 26 may have caused the jury to believe that if they were satisfied to the required standard that criminal negligence had been established, that would make it unnecessary to consider whether the proper verdict was manslaughter and leave open only the question whether the verdict should be guilty of wilful murder or murder. Finally, it is argued that the directions did not make clear to the jury that they need only consider the question of criminal negligence if they were not satisfied beyond reasonable doubt that the defence of accident provided by the second limb of s 23 did not apply.

6 The grounds of appeal include a complaint that the trial Judge did not adequately direct the jury on the alternative verdicts of wilful murder, murder and manslaughter, the effect of which, it is said, was to deprive the accused of a chance of acquittal, because it was not made clear to the jury that they should first exclude the application of both limbs of s 23 before considering any relevant intent.

7 Finally, it is said that the verdict of murder is unsafe or unsatisfactory and the following particulars are given:

"(a) The Crown case at trial was that the appellant intended to kill the deceased,

(b) It was not the Crown case that the appellant had discharged the firearm with the intent only to do grievous bodily harm.

(c) The case at trial for the defence was that the death occurred by accident.

(d) The jury returned a verdict that was beyond the cases as presented at trial and;

(e) In finding that intention to kill the deceased was not established, no jury, properly instructed, could reasonably find that in discharging the gun, the appellant intended only to cause the deceased grievous bodily harm given:

(i) the calibre of the gun,

(ii) the appellant knew it was loaded, and

(iii) the gun was positioned towards and close to the head of the deceased at the time of discharge,

(f) A reasonable jury ought to have maintained reasonable doubts that:

(i) the death did not occur independently of the will of the accused.

(ii) the appellant had intended to cause grievous bodily harm.

(iii) the death did not occur as the result of an accident.

(iv) the death did not occur as the result of a provocation."

8 The deceased and the appellant had been living in a de facto relationship for some 11 or 12 years. They had two children, but in October 1999 the deceased took the children and left the family home in Dardanus Way, Heathridge. The deceased was employed at a herbal farm in Wanneroo. There were some residential units at the farm and the deceased and her sons moved into one of them.

9 The deceased had at some time apparently formed a new relationship with another man, a man who knew both the deceased and the appellant and of whom the appellant had said to a friend he was frightened. On 12 December 1999, only five days before the killing, the deceased and the new man had been seen at the beach together by a former girlfriend of this person. She told the appellant who said this confirmed his suspicion that something had been going on for months. It appears that the appellant was given this information probably on Tuesday, 14 December 1999. On that day and later the appellant spoke to other friends, angrily, about the information he had been given.

10 It appears that on the evening of 17 December 1999 the appellant sought out the deceased at the home of a neighbour with whom the deceased was to leave her children to be cared for while she went out. The appellant asked her to come back to the house with him so that they could talk. She reluctantly agreed.

11 It appears that a work colleague and friend went to the appellant's house at about 7 pm while the appellant and the deceased were both there. The appellant met his friend, said it was a bad time and asked him to return later. Nothing was heard from the house, but at about 8.45 pm the appellant rang a friend. The conversation was brief. The appellant said:

"I've got to go. I shot my girlfriend. The police are on the other line. Sorry, I let everyone down."

12 In fact, the appellant telephoned the police emergency service at 8.36 pm. The call was recorded and played to the jury. Understandably, it is rather incoherent. The appellant says that he has shot his girlfriend and she is dead. He cannot live with what he has done and he mentions that he will commit suicide. He says he did it because of jealousy, but there is no justification for what happened. He says that the deceased left about eight weeks ago. She had been seeing someone for a while. His heart couldn't take any more. They were arguing and fighting. He had the firearm wrapped in a pillow. He had shot his de facto wife an hour ago and since then had been trying to shoot himself and could not manage it. He said that he had used a handgun which he had now put in a gun safe in the bedroom. He said he had no plan to do anything, but he did take the gun out to scare her.

13 Importantly, he said they were scuffling over the gun. She lunged at it. The magazine fell out and he replaced it and he asked her to tell him the truth, "then, you know, she come for it again and I pulled the - you know, because she was on her knees." "I shot her." He said he knew the pistol had a live round in the chamber.

14 While this conversation was going on, the operator had, of course, arranged for police attendance and he was advised when they were ready. He then told the appellant to walk outside and surrender and he did so.

15 The appellant was an accomplished shooter, a member of a gun club. He owned three weapons, two self-loading .45 calibre pistols and a .22 calibre rifle. He kept them in a locked gun safe in his bedroom. They were found there after the shooting by a police ballistics expert. The deceased was lying on the floor in the bedroom doorway. The weapon later established to be that used in the killing was not cocked and had no magazine fitted. The magazine was found on a shelf in the gun safe. It had two live rounds of ammunition in it. A live round was found on the floor in the bedroom, near the deceased's left leg. Another live round was found on the dining room table, next to a pillow which had obviously had a projectile fired through it. Only one spent cartridge case was found. It was on a chair in the games room area of the open plan living space. The projectile which killed the deceased was recovered at post-mortem. Both that projectile and the fired cartridge case were established to have been fired from the particular pistol to which I have referred.

16 An expert witness tested the pistol for its function. It operated correctly and passed the prescribed series of safety tests. It only discharged when it was loaded, cocked, had the safety devices disengaged and pressure was placed on the trigger which exceeded the safe minimum allowable.

17 The magazine can be loaded with up to 14 cartridges. It appears it may originally have had five rounds of ammunition inside it. The weapon is cocked by using a slide which is manually pulled to the rear and then pulled forward by a spring. That leaves the weapon in a cocked position with the hammer to the rear. There is a safety device on the slide which must be disengaged. There is a further safety device which must be disengaged when the weapon is held in the normal way by the pistol grip. The trigger finger must then be placed inside the guard and the trigger pulled to the rear.

18 When fired, the pistol automatically ejects a fired cartridge case and loads a live cartridge from the magazine into the chamber of the pistol. To fire further rounds, all that is necessary is to maintain pressure on the safety device on the pistol grip and pull the trigger, which is reset after each firing by allowing it to go forward to the maximum extent. Live rounds of ammunition may be ejected from the chamber by operating the slide manually and disengaging the hammer, but of course the magazine would need to be removed if a further round of ammunition was not to be cycled up into the chamber.

19 To fire the weapon, therefore, it is necessary to insert the magazine containing one or more live rounds of ammunition, to cock the weapon by pulling the slide to the rear and allowing it to go forward again, to disengage the slide lock safety device, to hold the pistol grip correctly so as to disengage the further safety device located there (the trigger cannot be pulled to the rear to fire the weapon unless this is done), the finger must be placed inside the trigger guard and the trigger pulled. The projectile will be discharged and the spent cartridge case ejected.

20 Given the state of the weapon when found, it appears that in this case, after the weapon was discharged, the slide was operated again so as to extract a further live found of ammunition. On at least one occasion when this was done, the magazine had been removed so that the breech of the weapon could be cleared of live ammunition. It is possible, of course, that one of the rounds of live ammunition, perhaps that found on the floor of the bedroom, was dropped at some time without having been in the magazine, but in any event it will be apparent that the process of discharging the weapon implies the performance of deliberate actions. It should be noted, however, that both of the live cartridges found had been chambered and ejected from the pistol at some time.

21 The ballistics witness was present at the post-mortem examination. Her evidence was that the entry wound on the top of the deceased's head displayed "characteristics of being a near-contact gunshot wound, however did not display some characteristics normally displayed in this type of gunshot wound." The examination of the pillow revealed that the pistol had obviously been fired through it, with the muzzle of the pistol either in contact, or nearly in contact, with one surface of the pillow, which acted as a filter and stopped the penetration of firearm discharge residues through it. That no doubt explained why the wound to the head of the deceased had the appearance it did. In other words, the pillow would have been in close proximity to the head of the deceased, with the muzzle of the pistol in close proximity to, or in contact with, the other side of the pillow when it was discharged.

22 A peculiarity of the ballistics evidence was the calling of a second ballistics expert by the Crown, presumably in anticipation of the defence calling expert ballistics evidence. This witness had observed the testing processes employed by the person consulted by the defence, referred to the views that that person had expressed as to the safety of the weapon and its capacity to discharge with less than the required trigger pressure, and then the witness gave evidence critical of the procedures adopted and the validity of the opinions offered by the person consulted by the defence; but this person was never called to give evidence. In fact, the defence called no evidence, not even the appellant.

23 Other evidence led by the Crown included that of a fingerprint expert who found no identifiable prints on the pistol. DNA from the deceased was found on the pillowcase adjacent to what was apparently the exit hole for the projectile. This evidence was equivocal, but capable of confirming the conclusion which was open to be drawn from the gunshot residues and the indicators connected with the wound on the deceased's head. A forensic chemist gave evidence which confirmed that when the pistol was discharged it would have been in close proximity to one surface of the pillow, the other surface of which would have been in close proximity to the head of the deceased. Further, this witness's evidence showed that the deceased had gunshot residue on both of her hands. The witness thought this might be accounted for if the deceased had her hands up in a defensive manner as the weapon was discharged.

24 Important evidence was given by Dr Cooke, the forensic pathologist who conducted the post-mortem examination. The deceased was a small woman. The witness saw her in situ. She was lying face down. As I have said, she was in the doorway to the main bedroom, where the gun case was, but she was also near the front entrance to the residence. The gunshot wound was on the top of the deceased's head and the track of the projectile was through the skull, into the brain, through the brain, effectively from top to bottom, and the projectile lodged in the right rear of the neck. The gunshot wound track direction was downwards, slightly forwards and slightly towards the right of the deceased. The witness said that in 15 years of performing autopsies he had never before seen such a wound where the projectile followed a track of this kind.

25 The appellant was interviewed on videotape by the police. The interview was a lengthy process. There was a break of some time during it. At the trial, the appellant effectively relied upon this evidence as giving his version of the facts.

26 He told the police that his de facto wife had left. He suspected she was having an affair. On the Tuesday he spoke to her and she confirmed it. He knew the identity of the other male. 17 December 1999 was a Friday and so the appellant's suspicions had been confirmed 3 days earlier. On that evening he saw his wife take one of their children to a friend, a few doors down the street. He went there and asked his wife to come back to the house to talk to him. As I have said, she reluctantly agreed. An argument developed.

27 It was the appellant who introduced the gun into the argument. It was initially unloaded. He put the magazine in, but it was not cocked. He wanted to know where the deceased's lover was so he could "bash him". He had the pistol to frighten the deceased into telling him where the other man was. At one time, they were wrestling over the weapon. The magazine dropped out and the appellant had to pick it up and put it back in the pistol. He had no recollection of cocking the weapon, but he accepted that he "must have" done so.

28 During the struggle in the bedroom, as they were in the vicinity of the bed, the appellant said that he picked up a pillow and enclosed the gun within it so that the deceased would stop "grabbing for it". At that stage the appellant thought that he had not cocked the weapon, but he did not know when that was done. He said:

" ... she had her hands on the pillow and she was squatting and duck walking, pushing me backwards, pushing me backwards, you know."

29 She had her hands on the pillow rather than the gun. He did not know why she was doing that. The appellant was trying to push her away. He had the pillow and the gun in his right hand. She was trying to get hold of the gun, "trying to grab the gun". She was down low and then he "must have" pulled the trigger. He did not know there was a round in the weapon. All he could remember was that when the magazine fell out, one round or more dropped out. He picked them up and put them back in the magazine, telling her to stop and replacing the magazine in the pistol.

30 When asked why he shot the deceased he said he did not mean to do so. He was not sure if he pulled the trigger. Yet after a rest break of about 21/2 hours, when the interview was resumed, the interviewing officers returned to this crucial topic. The appellant said the deceased was scared. She actually tried to jump through a window which was closed. He restrained her. She was fighting and kicking, but he pulled her down. She was coming for the gun again. She had her hands on it three or four times. He was trying to stop her taking hold of it. And that was all he said. He did not deliberately shoot her. He did not know how the weapon discharged or how a round of ammunition got in the chamber.

31 The first ground of appeal is substantially concerned with the question of the trial Judge's directions about the first limb of s 23, to which I have referred. The ground is expressed in a way which suggests that the Judge should have explained to the jury the distinction between the two limbs of s 23 and, in effect, to have given them an explanation of the law as to the different ways by which the application of s 23 may negate criminal responsibility for an act which occurs independently of the exercise of the will of the accused or for an event which occurs by accident. However, a trial Judge is not bound to give a jury the benefit of a legal dissertation. The Judge is, by the Code, s 638, under the duty "to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make." In other words, the law recognises that it is only helpful to a jury to be told so much of the law as is fairly raised by the evidence and, therefore, as is required for the fact-finding process upon which they are engaged: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 per Hayne J at 52 - 54 [142] - [144].

32 In R v Hubert (1993) 67 A Crim R 181, in a judgment with which Pidgeon and Franklyn JJ agreed, I endeavoured to express an understanding of the way in which s 23 will have an operation in a case where the accused is charged with a homicide. I did so because it assists to understand s 23. In my view, it operates in this way. A homicide is defined by the event which is the killing. A killing is done when a person causes the death of another, "directly or indirectly, by any means whatever": Code, s 270. By s 268, killing is unlawful unless authorised, justified or excused by law. Section 23 may provide an excuse. Because the Crown must prove that the killing is unlawful it must, in a case where the evidence raises the issue, prove beyond reasonable doubt that s 23 does not apply, because the effect of its application to the case is to negate the criminal responsibility of the accused.

33 The Code, s 1(1) defines the term "criminally responsible" as "liable to punishment for an offence". Section 2 defines an offence as "an act or omission which renders the person doing the act or making the omission liable to punishment". The provisions of the Code, particular those in Chapters 3 and 5, all speak consistently of an offence being constituted wholly or in part by reference to an act or omission. An offence may also be constituted by an event and the act or omission and/or event may or may not, as s 23 makes clear, need to be accompanied by an intention to cause a specific result as an element of the offence.

34 Homicide is an offence constituted by an act or omission and a relevant event. In applying s 23 to a case of homicide, therefore, the relevant act or omission will be that which is creative of criminal responsibility because it is causally relevant to the event which is creative of criminal responsibility. It follows that the relevant act or omission for the purposes of s 23 will be that which, perhaps together with an intention, attracts criminal responsibility and the relevant event will be that which attracts criminal responsibility.

35 It is in connection with an act or omission and the occurrence of an event attracting criminal responsibility that the duties relating to the preservation of human life set out in the provisions of Chapter 27 of the Code have their part to play. Each is concerned with the causation of events relevant as elements of offences and each deals with an omission to do an act which it is the offender's duty to do. Each of s 262 - s 267 speaks of the offender being "held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty".

36 So far as s 23 is concerned, therefore, the operation of a provision within Chapter 27, in this case s 266, the duty to control dangerous things, will have its part to play if it would otherwise be the case that s 23 would have an application to negate criminal responsibility because the Crown had failed to prove beyond reasonable doubt that the death did not occur by accident. In other words, the accused will remain criminally responsible for the death although it occurs by accident if the death was caused by an act or omission in breach of a duty of care, in this case the duty to control the dangerous thing, in the terms provided by s 266 of the Code.

37 In a case such as this where the killing was by means of a gunshot wound received by the deceased which led immediately to her death, the relevant act for the purposes of s 23 was the act of discharging the pistol, perhaps better expressed as the act of shooting the pistol, an act not confined merely to the contraction of the trigger finger, nor extending to the infliction of the fatal wound: R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 38, 81, a case in which there was discussion of a number of earlier decisions of the High Court. There was reference to such decisions, including Falconer, also in Murray v The Queen [2002] HCA 26; (2002) 76 ALJR 899 and in the companion decision of Ugle v The Queen (2002) 76 ALJR 886. Murray was a case where the killing was by shooting the deceased, whereas Ugle was a case where the killing was by stabbing the deceased in the chest.

38 In their joint judgment in Murray, Gummow and Hayne JJ referred to the importance of avoiding an over-refined analysis in deciding what is the relevant act: 908 [49]. At 909 [53] their Honours said:

"Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may be steps to which the appellant would say that he had turned his mind; others may not have been accompanied by conscious thought. It is by no means unknown for someone to carry out a task (like, eg, loading a weapon) without thinking about it, if it is a task the person has undertaken repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at the source of that threat as soon as the threat is perceived, and may do so without hesitating to think, but in neither example could it be said that the act (of loading or firing the weapon) was an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of discharging the loaded shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole, was not willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion of sleepwalking, epilepsy, concussion, hypoglycaemia, or dissociative state."

39 In Murray, Callinan J appears to express a somewhat different view. At 924 [148] his Honour refers to the duty of the trial Judge to identify and effectively isolate "what on the evidence is capable of being regarded as the act causing death and as the unwilled act." His Honour observed:

"Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter's acts in placing himself in such a position as to give the 'act' the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the 'act' itself, or be a constituent part of it."

40 His Honour said that it would be for the jury, so instructed, to determine whether the Crown had negatived the proposition that death resulted from an unwilled act. In so saying, his Honour appears to express agreement with the view taken by Gaudron and Kirby JJ, in separate reasons, that it was for the jury to decide what were the acts done by the accused and whether any of them caused death. However, at 924 [149], Callinan J said:

"There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the 'act' for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare."

41 His Honour, in that passage, expresses a similar point of view to that adopted by Gummow and Hayne JJ.

42 In this case the act of discharging the pistol may be taken to encompass, perhaps, the act of inserting the magazine containing live rounds of ammunition into the weapon, but certainly the act of operating the slide so as to cock the weapon, disconnecting the safety device on that part of the pistol, holding it properly by the grip so as to disconnect the safety device which worked on the trigger, presenting the weapon towards the deceased and exerting the required pressure on the trigger so as to discharge the projectile. In my opinion, that act of discharging the firearm, as a result of which the projectile struck the head of the deceased and caused the fatal wound which caused her death, could not on any view of the facts be said to be an unwilled act, if the weapon was fired as a result of pressure exerted on the trigger by the appellant, even if that final movement of the trigger finger was itself a reflex action or convulsive movement: cf Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205. There was, in my opinion therefore, in fact in this case no evidence capable of raising the proposition that if the pistol discharged as a result of the act of the appellant, that act might have been unwilled.

43 That left for consideration the question whether the relevant event, the death, was an accident and, in my opinion, whilst there was no evidence as it turned out capable of showing that the pistol might have discharged without human agency to depress the trigger, there was evidence, albeit weak evidence, capable of showing that the pistol might have been discharged, not by the voluntary act of the appellant (in the sense in which the term "voluntary act" would be understood as I have discussed the law) but by the conduct of the deceased supervening in the process of discharging the loaded weapon which I have described, by causing pressure to be applied in some way by the appellant to the trigger and thus herself discharging the weapon. In that case it could not be said that any act of the appellant, voluntary or unwilled, caused the pistol to discharge. In that event, the conduct of the appellant as described in the evidence, leading up to the fatal shooting, would still undoubtedly be relevant to prove that he indirectly caused the death, so that it would still be true to say that the appellant killed the deceased, but the question would arise whether, as a result of her intervention by pressing on the pillow and hence upon the pistol so as to cause it to discharge, her death was an event which occurred by accident.

44 There is a debate about the circumstances in which the second limb of s 23, the so-called defence of accident, arises for consideration. There are decisions of the High Court and this Court in which it has been held that where the relevant event occurs as the direct and immediate result of the act which is identified as attracting criminal responsibility, it cannot be said that the death was an event occurring by accident. Ward v The Queen [1972] WAR 36 and Hubert are the decisions of this Court, and the debate in the authorities was referred to by Kennedy J in R v Azaddin (1999) A Crim R 474, his Honour noting that the High Court refused special leave to appeal in Hubert.

45 There are earlier Queensland authorities to the same effect, but in R v Van Den Bemd [1995] 1 Qd R 401, a case which was, however, decided in 1992 before Hubert, the Queensland Court of Appeal, although earlier decisions of that Court, the High Court and the case of Ward were considered, declined to follow the earlier decision of the Queensland Court of Criminal Appeal in R v Martyr [1962] Qd R 398, and held that an event occurs by accident within the meaning of s 23 if it is not intended or foreseen by the accused person and is so unlikely that it is not reasonably to have been foreseen by an ordinary person in the position of the accused. I should say that the decision in Van Den Bemd was not cited to the court which decided Hubert.

46 Van Den Bemd also was the subject of an application for special leave to appeal to the High Court. Again, leave to appeal was refused. On this occasion the reasons are reported: R v Van Den Bemd (1994) 179 CLR 137. At 139, the majority, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, said that the words of the section are "inherently susceptible of bearing the meaning placed upon them by the Court of Appeal of Queensland." Brennan and McHugh JJ dissented, taking a view of the provision in line with some earlier decisions of the High Court, the Court of Criminal Appeal of Queensland and the Court of Criminal Appeal of this State.

47 In this case it is unnecessary to pursue the debate further because if the question of accident arose it was as a result of the intervention of acts of the deceased in the process by which her death was caused, so as to cause the pistol to discharge, and the question became whether, in the event that the jury found that that was the way in which her death was caused, the death was proved by the Crown to be intended by the appellant, foreseen by him or an event of sufficient likelihood as a result of the appellant's conduct, that it ought reasonably to have been foreseen and so was not to be regarded as an accident.

48 The question is, not putting it affirmatively or in terms of the onus of proof, whether the death was unintended, unforeseen and not reasonably to be foreseen as a result of the actions of the accused person. It is not whether the death could be so described as a result of the discharge of the gun in the circumstances of the case, because that would beg the question. I mention that because of the way in which the appellant's submissions are formulated.

49 In R v Taiters [1996] QCA 232; [1997] 1 Qd R 333, a reference was made in relation to this question by the Queensland Attorney-General to the Court of Appeal. The second question posed to the Court, which was answered in the affirmative, was:

"Whether when a person is charged with manslaughter it is a correct direction of law that an accused is not responsible for a death which follows from his or her actions if death was such an unlikely consequence of his or her actions that an ordinary person could not reasonably have foreseen it?" (my emphasis)

50 The question arose out of a common enough incident resulting in a death. Two men fought in a street. There was evidence that one struck the other, causing him to fall heavily and strike his head on the cement footpath. That man suffered injuries which caused his death, which might have resulted from the impact of his head upon the paving. It was held that the jury in such a case should be directed to have regard to the conduct of the accused as they found it to be, and the occurrences and chain of causation leading from that conduct to the death, before asking themselves whether the Crown had proved that the accused intended that the deceased should be killed, or foresaw the death as a possible outcome of his conduct, or whether an ordinary person in the position of the accused would reasonably have foreseen that death might possibly result from his actions. If that was established the death would not be an accident: see also Murray per Gummow and Hayne JJ at 907 - 908 [43].

51 Translating that into the circumstances as outlined in the evidence led in this case as to the incident that occurred and the manner in which death was caused, the jury would be asked whether the accused intended that as a result of his actions the deceased should be killed, whether he foresaw that that was a possible outcome or whether, if neither was established, an ordinary person in the position of the accused ought to have foreseen that by introducing the weapon into the argument to frighten the deceased into telling him where her lover was to be found, by putting the weapon into a state where it could be fired, a struggle might develop over the weapon as a result of which the deceased might come into contact with the weapon in such a way as to cause it to discharge while she was in close proximity to it, that she might be struck by the projectile and suffer a wound which would cause her death. If an ordinary person in the position of the appellant, having regard to what was done and what occurred, ought reasonably to have foreseen that the death might result, then it would not be an accident. The homicide would not be excused. It would be an unlawful homicide; wilful murder, murder or manslaughter, depending on the intention, or lack of it, with which the actions of the appellant were accompanied.

52 The second ground of appeal complains of a miscarriage of justice arising out of the directions of the trial Judge in respect of the operation of s 266 of the Code. It is said the direction was couched in terms which effectively left for the jury only the choice of wilful murder or murder and the direction did not make it clear to the jury that s 266 and the duty of care it provided would only arise if the Crown had not disproved accident. Finally, it is said that his Honour did not properly describe the duty of care imposed or the standard of negligence required. There are many decisions which deal with that question. Perhaps a convenient authority is R v Hodgetts & Jackson [1990] 1 Qd R 456. The jury must be satisfied that criminal negligence has been proved. The words "gross" and "culpable" have been used to describe that standard of negligence. What is required is a degree of recklessness involving serious moral guilt, something for which the jury thinks it to be appropriate that the accused ought to be punished as for the commission of a criminal offence: see also R v Guise (1998) 101 A Crim R 143.

The directions about s 23 and criminal negligence

53 Early in his Honour's directions to the jury, the trial Judge referred to the possible verdict of manslaughter and said that senior counsel for the defence in addressing the jury had submitted that manslaughter would be an appropriate verdict on the basis of the appellant's criminal negligence in his handling of the pistol and his behaviour prior to the shooting. We do not know precisely what defence counsel said because, as is the practice, unless the parties seek to have the addresses of counsel transcribed for the purposes of an appeal, that is not done, and it was not done in this case. In any event, if such a concession was made I would not accept the submission made for the respondent that the consequence would be that s 23 and s 266 of the Code "had no application to the case whatsoever". There are many cases which are authority for the view that a trial Judge is obliged to direct the jury about issues of fact and law to which a view of the evidence open in the case fairly gives rise. A classic example is the decision of the High Court in Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158. The appellant is not precluded by the concession made at the trial from raising the issues now advanced.

54 I turn to the criticisms made of the directions given by the trial Judge. His Honour spoke at an early time of the four alternative verdicts open on the indictment. He mentioned, very broadly, the cases put by the prosecution and defence. In doing so, because the defence had conceded that the jury might well conclude that the appellant was guilty of manslaughter, his Honour gave a definition of the concept of negligence arising out of s 266, "just in passing". His Honour then went on to speak of the onus and standard of proof and he spoke of matters concerned with the jury's evaluation of the evidence of the various witnesses, including an evaluation of the out of court statements made by the appellant to the police over the telephone to the emergency service and during the video interview.

55 His Honour then turned to the elements of the offences of homicide open on the indictment. His Honour spoke of unlawful killing and said that such a killing occurred when a person causes the death of another, directly or indirectly. His Honour added, "So carelessness in the use of a firearm - you can be guilty of unlawful killing if the jury thinks it's bad enough." His Honour told the jury that before they could find the appellant guilty of any offence they must be satisfied that the appellant caused the death "or he was responsible in the negligent sense for her death".

56 The trial Judge then introduced the topic of s 23 by stating the relevant portion of the section to the jury. His Honour then read that portion and said:

"So it's subject to the negligence provisions. If it's a clean accident, then he's not ever responsible, but if he's negligent to the criminal degree, he can be. If the Crown is unable to exclude the application of s 23, which I have just read to you, beyond a reasonable doubt, the killing is excused and is therefore not unlawful.

You will have observed that the section which provides for a circumstance of excuse, that is, the accident, in relation to what would otherwise be a crime is subject to the other provisions of the Criminal Code regarding negligent acts or omissions."

57 His Honour then said that the relevant provision was s 266 of the Code and he read it to the jury. Having spoken of all the various matters of law which his Honour considered, with the assistance of submissions by counsel, arose in the case, the trial Judge went on to review the evidence given by the various witnesses in some detail. He seems to have omitted no evidence of any consequence, including a reference to the report of the defence ballistic expert which, although it was not tendered in evidence, had been put to the ballistics experts called by the Crown. His Honour read the evidence of their comments which were, effectively, that the dangerous situation envisaged by the defence report, whereby the weapon might have discharged by means of an act other than exerting the required degree of pressure on the trigger, was not demonstrated, as it should have been, by the tests performed on the pistol.

58 At the conclusion of this process the trial Judge reviewed briefly the way in which the various verdicts might be arrived at, having regard to the issues raised by the evidence, which are the subject of the various grounds of appeal. His Honour said:

"The Crown has charged Mr Agnew with wilful murder; shooting the deceased lady intending to kill her deliberately. That's what wilful murder is. If you are not satisfied beyond a reasonable doubt that the Crown has proved that, you would consider whether he was guilty of a lesser charge of murder, which is a deliberate intentional shooting of the deceased with intent to do grievous bodily harm.

If you came to the conclusion that the Crown had not established that charge beyond a reasonable doubt, you would consider whether he was guilty of the third homicide, which is manslaughter or unlawful killing. In this case, if you considered beyond a reasonable doubt that there had been criminal negligence in the handling of this gun which had caused the death of the deceased, he could be guilty of manslaughter. Criminal negligence being negligence which you consider, actions which you consider should be punished by the law.

That would cover any negligent act on that occasion with the pistol which resulted in it going off and killing. It might involve any act, throwing it around, having it when he shouldn't there, putting a pillow over it, whatever you thought he might have done, firing it to one side, anything that he might have done which accidentally caused her death. If you thought he was negligent in the handling - criminally negligent, I'm sorry. If you thought he was criminally negligent; that's more negligent than being - civil negligence. It's not just civil negligence; it is criminal negligence we're talking about - you could convict him of manslaughter and if you didn't convict him of that, you would find him not guilty.

In other words, if you thought this had occurred accidentally and he wasn't criminally negligent in the sense that I have just discussed it with you, you would find him not guilty of anything, so it's a graduation in situations, but you can consider it any way you like really. There's no set way you have to consider it, but they are the three different levels of homicide and if there's not an unlawful homicide, either wilful murder, murder or manslaughter, then he's not guilty."

59 His Honour was asked by prosecuting counsel to tell the jury that an accident was an event which was not intended, unforeseen and not reasonably foreseeable by an ordinary person in the position of the accused. Senior counsel for the defence asked his Honour not to do so and the trial Judge declined to give any further direction.

60 After the jury had been in retirement for about 5 hours, his Honour gave them a redirection in response to the question:

"Could you explain to us the following terms, please: murder under provocation; manslaughter; murder, thank you, in plain English, please?"

61 His Honour reminded the jury that the indictment was for wilful murder. He said that murder, "is in a case like this if somebody with an intent to inflict grievous bodily harm shot a gun", then his Honour read the definition of grievous bodily harm from the Code, so far as it was material, and elaborated a little upon it. With the assistance of defence counsel his Honour a little later confirmed that there had to be a deliberate firing of the weapon accompanied by an intention to cause grievous bodily harm. His Honour also said:

"Manslaughter in a case like this is where he's not guilty of wilful murder or murder but if you considered that he acted in a manner that was grossly or criminally negligent with such carelessness and negligence that he ought to be punished by the criminal law, you could find him guilty of manslaughter because of his negligence, criminal negligently handling of the firearm. That would be manslaughter. That's how you would find manslaughter in a case like this and if you didn't find manslaughter or murder or wilful murder, you would find him plain not guilty.

You see, to be guilty of manslaughter he would have to be criminally negligent with that gun and as a result cause the death of the deceased. To be guilty of murder he would have to have an intention to cause her grievous bodily harm. It's quite different. One is criminal negligence and the other is an intent."

62 Those directions having been given, the jury were sent to their hotel overnight.

63 On the following morning as a result of his Honour's consideration of the submissions that counsel had made in the absence of the jury on the previous evening, the trial Judge returned the jury to the court and gave them further directions related to the question they had asked. He said:

"Murder under provocation, manslaughter and murder. First of all - I should include wilful murder. In a case like this, it would be wilful murder if, intending to kill the deceased, the accused pulled the trigger of the gun, intending to kill her; pointed it at her and pulled the trigger. That's this case which the Crown lays against Mr Agnew. It would be murder if he deliberately pointed the gun at her with intent to do grievous bodily harm to her and pulled the trigger, if either of those were proved beyond a reasonable doubt.

To prove wilful murder you must prove beyond a reasonable doubt that with intent to kill, in this case, he shot her. To prove murder, the Crown must prove beyond a reasonable doubt that with intent to do grievous bodily harm he shot her deliberately. If the Crown has not established either of those two alternate offences beyond a reasonable doubt, you would then consider manslaughter, that is, did he by his behaviour on that night - was he criminally negligent with the gun, with what he did with the gun, and did that cause the death of the deceased, that criminal negligence?

If that was proved beyond a reasonable doubt, that would be manslaughter. There is no need to have any intent to hurt her or to kill her for a verdict of manslaughter. Manslaughter is proof beyond a reasonable doubt that the accused person behaved with criminal negligence deserving of punishment by the criminal law in his handling of the gun, which caused the death of the deceased. Otherwise the verdict is not guilty. So they are the four verdicts."

64 There are a number of observations to be made about those directions. In the first place, it is true that his Honour laid no emphasis upon the concept of killing by an unwilled act of the appellant. Nothing was said expressly to distinguish that situation from the case where the death could be regarded as an event which occurred by accident. However, the first limb of s 23 was left to the jury, although no time was spent on it. It was not taken from them and, in my opinion, as I have said, on analysis, on no version of the evidence would it have been open to the jury to conclude that it was not established beyond reasonable doubt that, if the death was caused by the act of the accused to discharge the pistol, that was a deliberate or willed act.

65 As to the question of the second limb of s 23, the defence of accident, this was the area seen by counsel at trial on both sides as being that which was relevant to the appellant's criminal responsibility and it was upon this area that the trial Judge spent the time. The difficulty with the directions on this aspect of the case was that the matter was left to the jury without expressly telling them what an accident was, within the meaning of s 23. His Honour did not see the need to tell the jury that the death would be an accident if, as a result of the deceased's intervention, there was an interference by her with the weapon which caused it to discharge and caused her to receive the fatal wound. His Honour did not say that the question would then be whether the death, being caused in that way, was not intended by the appellant, foreseen by him or reasonably to be foreseen by a person in his position as an event which might result from his conduct as the jury found it to be immediately preceding the discharge of the pistol. If that omission has deprived the appellant of a chance of acquittal of the offence of murder then the appeal must be allowed and a retrial ordered.

66 However, as has been seen, although initially the trial Judge directed the jury that manslaughter was an unlawful killing not accompanied by an intention to kill or do grievous bodily harm and therefore a non-accidental killing, at a number of points in his Honour's address, including finally the point of redirection on the morning of the day when the verdict was returned, his Honour equated a verdict of manslaughter with a killing made unlawful because it was accompanied by criminal negligence on the part of the appellant.

67 While that was wrong as a matter of law it had the effect of causing the jury to focus upon the question of criminal negligence and the need for the Crown to establish that if a conviction was to be achieved. In my opinion, that would have the effect in the circumstances of this case of preventing a miscarriage of justice arising out of the errors made in respect of the directions about accident, the second limb of s 23, if the jury were properly directed about negligence and therefore must have found that that was established to the relevant degree before going on to consider the question of any intent with which the resulting unlawful homicide was accompanied.

68 In my opinion, his Honour's directions about the question of negligence in the handling of the pistol by the appellant were correct in law. His Honour told the jury that the "defence" of accident would be negated (a reference to the second limb of s 23) if the death was established to be the result, not of what his Honour described as a "clean accident", but the result of negligence.

69 As to that, in my opinion the directions of the trial Judge cannot be faulted. I have quoted what his Honour initially said about criminal negligence. He referred to that again no less than four times in more or less detail. His Honour read s 266, but he did not leave it there. At one point his Honour said:

"I have now dealt with accident which has been raised by the defence and remembering always this question of criminal negligence in the handling of the gun. You wouldn't find him not guilty because you thought it was an accident if you thought that the Crown had proved beyond reasonable doubt that he was negligent to the degree in the handling of that gun that in your view requires punishment by the criminal law. If you are not satisfied beyond a reasonable doubt that the verdict should be wilful murder or murder, but you were considering manslaughter, you would consider that question of criminal negligence."

70 I have mentioned the terms in which his Honour dealt with this issue just prior to the retirement of the jury.

71 In my view, on the basis of those directions this jury must have concluded at least that the appellant was not to be acquitted on the basis that the death was an accident, because they were of the view that it was established beyond reasonable doubt that the accused had been criminally negligent, grossly negligent, reckless in his handling of the firearm prior to its discharge so as to cause the fatal wound. In that event it can be seen that whatever imperfections there may have been in the directions about s 23 generally and about accident, the appellant has not been deprived of a chance of acquittal and a miscarriage of justice has therefore not occurred in this regard.

72 Of course, the jury went further than simply finding that the appellant behaved recklessly in his handling of the firearm. They rejected provocation and found the appellant guilty of murder which, on the directions given by the trial Judge, was a verdict only to be reached on the basis that they were satisfied beyond reasonable doubt that the appellant deliberately discharged the weapon, intending to do the deceased grievous bodily harm. I can see nothing arising out of the complaints made by the appellant about the directions in relation to accident which would cause concern that a miscarriage of justice has occurred in the jury finding guilt of murder. Nothing said about accident could have caused the jury to consider the crime of murder upon a false basis in law. I can detect no error in his Honour's directions in relation to s 266 of the Code and I would not uphold the first two grounds of appeal.

73 Ground 3 is a related ground. It complains that the trial Judge's direction involved an error of law in relation to the alternative verdicts of wilful murder, murder and manslaughter because the Judge did not tell the jury that they had first to exclude the application of s 23 before considering whether the elements of any of the alternative homicide verdicts had been established beyond reasonable doubt. Suffice it to say that in my opinion this ground cannot be made out. Nothing was said to this jury which might indicate to them that they need not consider s 23 and the question of accident before considering the alternative verdicts which might be open.

Was the verdict of murder unsafe or unsatisfactory?

74 The final ground raises the question whether the verdict of murder was unsafe or unsatisfactory. As I understand the argument, which was only developed at the hearing of the appeal by relying on the particulars provided for the ground, to which I have referred, the appellant's argument is that on the evidence this was never a case of murder, but on the Crown case it was a case of wilful murder whereas on the defence case the killing was an accident or, at worst, without intention at all so as to constitute the crime of manslaughter on the basis of the negligent handling of the weapon by the appellant.

75 The test as to whether a verdict is unsafe or unsatisfactory requires the appellate court to review the evidence at trial and, in this case, particularly to consider whether the jury ought to have had a reasonable doubt as to the presence of an intention to do grievous bodily harm. If the appellate court has such a doubt it ought generally to conclude that a reasonable jury properly instructed ought to have had such a doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 494; Jones v The Queen (1997) 191 CLR 439, 450 - 452; and most recently MFA v The Queen (2002) 77 ALJR 139. But the application of the test does not require the appellate court, for the purpose of this review, to supplant the jury. Indeed, it is always to be borne in mind that it is to the jury that the primary responsibility of determining guilt or innocence is entrusted and the verdict of the jury must be accorded respect.

76 In my view, the evidence that the appellant loaded the weapon, cocked it, manipulated the safety devices or ensured that they were inoperative and deliberately fired the weapon was overwhelming, having regard to the account he gave, what would have to be done to the weapon, his experience with the weapon and matters of that kind. On the appellant's account the deceased "freaked out" when she saw the pistol. She tried to jump through a window, although it was closed. He restrained her and brought her further back into the room. He would have no difficulty keeping her away from the weapon, given their respective sizes and strength. Indeed at one stage during the course of his account he said he was wrestling her one-handed to keep her away from the gun.

77 The jury must have rejected the notion that he put the pillow over the muzzle of the pistol and around it to keep the deceased from grabbing at it. They would likely have taken the view that that action was obviously for the purpose of deadening the sound of a shot and that it necessarily implied at least the appellant's willingness to discharge the weapon.

78 It may be accepted that initially he introduced the weapon into the argument which developed for the purpose of frightening the deceased into disclosing the whereabouts of her lover so that, as the appellant conceded, he would be able to locate the other man and beat him up. He was obviously angry about the situation, distressed by it and prepared to behave violently to the other man, if not towards the deceased. I can see no difficulty in the jury concluding that they were not persuaded beyond reasonable doubt that the appellant, when he fired the gun at or in very close proximity to the deceased, intended to kill her. Equally, I can see no difficulty in the jury concluding that this was far more than a case where the appellant's criminal responsibility sounded in his grossly negligent handling of the weapon. The jury must have rejected the proposition that the pistol was discharged in some way by the conduct of the deceased as she was on her haunches, duck-walking towards the appellant and pushing him backwards, with her hands apparently coming into contact with the pillow and thereby pushing at the weapon. Nor, finally, can I see any difficulty in the jury concluding that as the argument developed and the struggle continued, the appellant's anger and upset state boiled over so that momentarily he intended to shoot her and thereby, almost necessarily, to do her some grievous bodily harm.

79 I would not uphold this ground of appeal and in the end therefore, in my opinion, the appeal should be dismissed.

80 ANDERSON J: I agree with Murray J that the appeal should be dismissed.

81 It is true that the trial Judge did not direct the jury as to the meaning of "accident" in s 23. At the conclusion of his summing up the prosecutor requested him to do so but senior counsel for the applicant asked him not to do so and his Honour decided not to do so. In my respectful opinion, this did not lead to a miscarriage of justice.

82 It was not part of the defence case (in so far as it is proper to speak of the defence having a "case" in a criminal trial) that the death of the deceased was an accident within the meaning of s 23. Of course, this did not relieve the Judge of the responsibility to give a full accident direction including an explanation as to the meaning of accident if that defence was open on a fair view of the evidence. In my opinion, it was not. On no fair view of the evidence could it be said that the death of the deceased, occurring in consequence of the applicant's actions, namely with the applicant struggling violently with the deceased while holding a pistol

which he had loaded and cocked, was such an unlikely consequence that it was not reasonably to have been foreseen by an ordinary person in the position of the applicant.

83 As the evidence did not fairly raise as a possibility that the death was an event which occurred by accident I think that it is understandable that counsel for the applicant at trial asked the Judge to refrain from instructing the jury on the law relating to the defence of accident and the Judge's decision not to do so did not deprive the applicant of a trial according to law.

84 The ordinary meaning of accident may be somewhat wider than what its legal meaning is in s 23. Uninstructed as to the legal meaning, the jury might think it is sufficient that the death was unintended and not actually expected or foreseen by the accused. Failure of the Judge to explain the legal meaning of accident, when that defence is raised, might result in a wrong verdict, which would depend on the concept of "accident" adopted by the jury, which might differ from the concept recognised by the law.

85 In this case the direction as a whole left the jury with an understanding that a verdict of acquittal was the correct verdict if they were not satisfied that the accused had either the intent to kill or the intent to do grievous bodily harm and if they were not satisfied that the accused's conduct was so grossly negligent as to be deserving of criminal punishment. In the context of the issues of fact and law joined at this trial that was a direction to the effect that, absent criminal intent and absent criminal negligence, the death was an accident and the verdict should be not guilty. If anything, the direction was favourable to the applicant.

86 I have nothing to add to Murray J's reasons for dismissing the other grounds of appeal.

87 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray J. I respectfully agree with his Honour's account of the facts of this case, and his analysis of the law. However, I differ from his Honour's conclusion. In my view, the appellant in this case has lost a chance of acquittal which might have been open to him if an appropriate direction as to the meaning of "accident" had been given.

88 There is a practical and logical difficulty in assuming that the jury must have found criminal negligence to have been established, before going on to consider the question of intent. His Honour's direction was to the effect that the jury should consider criminal negligence only if "you

were not satisfied ... that the verdict should be wilful murder or murder, but you were considering manslaughter" (transcript p 687). Indeed, the conclusion that the appellant was merely negligent in his handling of the firearm, and a conclusion that he intended at the time of its discharge to cause grievous bodily harm to the deceased, do not sit easily together.

89 It is in my view possible to understand the jury's verdict as a rejection of any possibility of what his Honour called a "clean accident", and thus a conclusion that the killing was not excused for that reason, together with a finding of the relevant intent. If the jury may have been led to reject any possibility of accident, without receiving a proper direction as to how accident might have arisen, the appropriate conclusion is in my view that the appellant has not had a trial according to law.

Agnew v The Queen [2003] WASCA 188

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Judgment (125 paragraphs)

Agnew v The Queen [2003] WASCA 188 (20 August 2003)

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Cases Cited (19)