Amoe v Director of Public Prosecutions

Amoe v Director of Public Prosecutions - [1991] HCA 46 - HCA 1991 case summary — Zoe

[9]

In an appeal under s 5 against a conviction by a judge, sitting without a jury, the considerations which limit the right of an appellate court to interfere with the findings of a jury have no application: in such an appeal this Court is empowered to "give such judgment, make such order or decree or impose such sentence as ought to have been given, made or imposed in the first instance". Consequently, "it is for [this] Court to form its own judgment of the facts so far as it is able to do so": see Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J (at 107). In hearing such an appeal, the Court is not limited to those grounds for setting aside a conviction which are contained in the common form criminal appeal legislation found in each of the Australian States. The power to set aside a verdict on the ground that it is unsafe or unsatisfactory derives from the power conferred by that legislation to set aside a verdict on the ground that there has been a miscarriage of justice. But under that legislation, whatever views the members of the court of criminal appeal may have as to the correctness of a jury's verdict, they cannot set aside the verdict on the ground that it is unsafe or unsatisfactory if, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: Chamberlain (No 2) (1984) 153 CLR 521. In exercising its powers under s 8, however, this Court is not so constrained. The Court must, of course, act on the principle that, unless the trial judge has failed to use or has palpably misused his or her advantage in seeing and hearing the witnesses, it "ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case": SS Hontestroom v SS Sagaporack [1927] AC 37 at 47. But where any question arises as to the proper inference to be drawn from the facts, it is the duty of this Court to form an independent judgment on that question, since the Court "is in as good a position to decide [the question] as the trial judge": Powell and Wife v Streatham Manor Nursing Home [1935] AC 243 at 267.

[11]

I was [sic] turn to the defence that the shooting of the deceased was accidental. Having considered the evidence, I am satisfied that this defence cannot stand. The accused claimed he retreated from the deceased who was advancing on him, there was no struggle, he told the deceased not to advance but to look at his injured eye. He then told the Court - "while I was holding the gun in my hand I looked at the safety lock. I want to see if it was locked. It was not clear to me if it was. I looked again, touched the trigger and the spear shot out". A demonstration of loading the spear and the trigger device was given. The accused suggested the spear could not have been properly loaded. I do not believe the accused. I have no doubt he himself locked the gun before he left his home. In cross-examination, when asked "where did you put the spear in the gun?" He replied "at home". That clearly establishes to me that he had handled his gun in his house and activated it there. I have no doubt that at the time of the loading of the gun, the accused would examine it and if the safety lock was not applied he would have seen it and secured it. That would be the normal and reasonable procedure to be adopted in such circumstances. I am satisfied he knew he was taking the gun in the car in which were his wife, child and cousin. He would ensure the gun was safe. Furthermore his evidence as to the effect of the trigger application when the spear is not properly pushed home does not help him in view of his evidence, given in chief, that the spear "would always slip out if it were not properly fitted". The accused had the gun for a considerable period of time before it was fired. If the spear had not been properly fitted I have no doubt it would have fallen out in the course of his prior handling of it. Examining the defence from another angle, I find that the story of the accused in the course of his confrontation with the deceased diverting his attention and thinking to the gun to consider whether the safety catch was applied just does not stand up to the test of credibility. I also consider it significant that there was no mention by the accused to the police of this accidental discharge of the gun. In the result I am completely satisfied the firing of the gun by the accused was deliberate. It was no accident. In making this finding I am, of course, assuming that the accused was capable of knowing what he was doing.

[14]

It seems to us that, when the appellant said that, if "it is locked you can hold the trigger with your fingers and nothing will happen", he was referring to the fully-locked position of the trigger. Likewise, it seems to us that, when he said that, if the spear is not pushed in hard, "trigger would relieve easily", he was referring to the half-locked position. Thus, the effect of his evidence would seem to be that, in accordance with his normal practice, he gave the trigger "a little touch" to see whether it was fully locked and did not intend to fire the spear. This interpretation is confirmed by his statement a little later when he said: "I did not intend when pressed trigger gun would fire. I did not mean to let gun shoot - accident." The earlier reference in his evidence to the spear always slipping out "if it not fitted in properly" could only be a reference to what happened if the spear was not locked into either the half-locked or the fully-locked position. If it was in either of those positions, the physical forces applied to the spear from the thick rubber bands prevented the spear from falling out. Consequently, although the statement of the appellant concerning the spear always slipping out was correct, it had no application or relevance to the incident at the service station, and the learned judge erred in thinking that it did. The appellant was not disputing that the spear was loaded. His claim was that he believed that the gun was in the fully-locked position, that he gave it "a little touch" and that it fired because, unbeknown to him, it was in the half-locked position. The learned judge was in error in stating that the "accused suggested the spear could not have been properly loaded". That was not the effect of his evidence. The distinction which the appellant was seeking to make was not between a gun that was loaded and a gun that was not properly loaded. The distinction which he was seeking to make was between the gun loaded in the half-locked or first position and the gun loaded in the fully-locked position.

[38]

Notwithstanding the nature of the appellant's defence, however, it was the duty of the learned judge to consider the defence of provocation if there was evidence to raise that defence: Van Den Hoek (1986) 161 CLR 158; 23 A Crim R 98. Moreover, a number of findings of the judge arguably provided a foundation for the defence. Thus, the judge found that "the accused was hurt by the deceased both physically and in the matter of pride in the fight at the Oval. He was greatly incensed; later when he returned to his home he and his wife discussed the incident and it was decided to find the deceased". The learned judge said that he was "also satisfied [that] the purpose of the pursuit was retribution - there was to be confrontation not conciliation". Upon these findings, it may have been open to the learned judge to find that, when the appellant set out to find the deceased, he had lost his self-control as the result of what the deceased had done to him earlier that morning. But it is difficult to believe that, over an hour after that incident had occurred, the appellant had not regained his self-control. He left the park between 8 am and 9 am. He arrived at the service station at about 10 am. His statements and conduct at the service station were only consistent with a man who, although desirous of revenge, was fully in control of himself. His actions in going back to the car for the speargun after speaking to the driver and before confronting the deceased indicate a calculated course of conduct. So does his statement to the deceased, "you wounded my eye. You want me to shoot you with the speargun?" Upon this evidence, the conclusion appears to us to be inevitable that the appellant was not acting under the influence of any loss of self-control caused by the earlier incident when he fired the speargun. Moreover, even if the prosecution had failed to prove that the appellant had not lost his self-control, a defence of provocation would have faced other difficulties. Would an ordinary Nauruan of the appellant's age and temperament have reacted in the way in which he did after such an interval of time had elapsed? Were the appellant's injuries the result of a wrongful act on the part of the deceased as opposed to injuries inflicted in self-defence?

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Judgment (39 paragraphs)

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Cases Cited (7)