one or the other of them to the effect of alcohol. That is a
matter for you to decide, but no doubt it would be fair to say
that neither of them admits to being so affected by alcohol that
they cannot recall the events of that evening. Each of them has
told you that they have a fairly clear
recollection of the
events of that evening."
9. McIntyre stated that he was at the party for approximately five hours. He
said
that during that time he consumed about half a dozen glasses of beer and
a drink of Scotch. He said he had taken a full bottle of
Scotch with him to
the party but left it in the boot of his car. When they left the party he
thought the appellant was "pretty well
sober". He said that he himself was
sober. However it would appear that he and the appellant consumed the
remainder of the bottle
of Scotch (almost a full bottle) when they went to the
appellant's house. They also smoked "a couple of cones each" of marijuana.
While McIntyre was not prepared to concede that the alcohol and marijuana had
very much effect on him, the appellant claimed that
both of them were
considerably affected by alcohol. The learned trial judge's comment that it
was not difficult to attribute any
irrational behaviour on the part of both
men to the effect of alcohol underlines the relevance of the issue.
10. It is clear that
the intoxication of an accused person, whether induced
by alcohol, drugs, or a combination of both, may be of relevance to a variety
of issues in a criminal trial, including the existence of a particular state
of mind or the appreciation of facts relevant to some
element of an offence or
to a defence to the charge. Intoxication may also be of relevance in the
assessment of the reliability
of the witnesses. If there is evidence of
intoxication capable of having some bearing on these issues it is the duty of
the trial
judge to identify that evidence for the jury and relate it to those
issues with appropriate directions on the law. It may well be
that for one
reason or another the defence does not wish to rely on evidence of
intoxication, but that does not relieve the trial
judge of giving the jury
appropriate directions. (R v Perks (1986) 41 SASR 335) I respectfully adopt
the summary of Hunt J in R v Stokes and Difford (1990) 51 A Crim R 25 at 32:
"The disavowal by counsel then appearing for the appellants
that intoxication was being raised as an issue, though
no doubt
made for tactical reasons which were bona fide thought to be in
the best interests of their clients, did not relieve
the judge
of the duty to give directions in relation to that issue in this
case: Pemble [1971] HCA 20; (1971) 124 CLR 107 at 117-118, 130. Counsel cannot
concede a matter of law to the disadvantage of the accused;
Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397.
The Judge must comply with his duty to put to the jury any issue
sufficiently raised by the evidence even
if that issue gives an
air of unreality to the case sought to be made by the accused in
relation to some other issue: Lawson
and Forsythe [1986] VicRp 53; (1986) VR 515
at 548; [1986] VicRp 53; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported,
Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ,
17 July 1990) at pp 1-2."
11. In my view the evidence as to the intoxication of the appellant and
McIntyre was relevant to a number of issues which the jury
was required to
consider. In order to convict the accused on the counts of endangering life
the jury would have to be satisfied
beyond reasonable doubt that the appellant
knew the discharging of the firearm was likely to endanger McIntyre's life and
that he
either intended such a consequence or was recklessly indifferent to
its occurrence. In determining these aspects of the appellant's
state of mind
it was essential for the jury to consider the bearing which the effects of
alcohol and drugs may have had on the appellant's
appreciation of relevant
facts and whether or not he formed the necessary intent inherent in the
charge. (The Queen v O'Connor
(1979-1980) 146 CLR 64 at 82; R v Tucker (1984)
36 SASR 135 at 139.)
12. The appellant's intoxication was also relevant to the defences of
self-defence and defence of property which he raised.
In deciding whether the
prosecution had negatived a genuine belief that the actions taken by the
appellant were necessary and reasonable
in defence of himself or his property
it was necessary for the jury to consider the effect of the consumption of
alcohol and marijuana
on his perception of events.
13. The relevance of intoxication was more limited in the case of the first
and third counts, but it
had a bearing on the jury's assessment of the
reliability of the witness McIntyre and the issues of self-defence and defence
of property.
In my view the absence of any directions on intoxication must
lead to the setting aside of the convictions on all counts.
14. An
acceptance of this view would be sufficient to dispose of the appeal.
However a discussion of the remaining grounds of appeal may
be of assistance
in the event of a retrial. It was argued on behalf of the appellant that an
essential element of the charge of
endangering life was not averred in the
information and that the conviction on the two counts alleging that offence
were void or
fundamentally flawed. In so far as it is relevant s.29(1) of the
Criminal Law Consolidation Act, 1935 provides as follows:
"29.
(1) Where a person, without lawful excuse, does an act
or makes an omission -
(a) knowing that the act or omission is
likely to endanger the
life of another; and
(b) intending to endanger the life of another or being
recklessly indifferent
as to whether the life of another is
endangered, that person shall be guilty of an indictable offence
and liable to be imprisoned
for a term not exceeding 15 years."
15. In my view this provision is clumsily worded. Inherent in the
requirement that the accused
knew the act or omission was likely to endanger
the life of another is the proposition that it was, in fact, likely to produce
that
result. Accordingly proof that it was such an act would seem to be an
important element in establishing the commission of the offence.
It is
unsatisfactory that this should be left to inference from the wording of the
section.
16. Given that this objective fact
is an element of the offence, Mr Peek, for
the appellant, argued that it was necessary to allege it in the information.
If there
had been an averment as to knowledge then I do not think that it
would have been necessary to refer to the objective fact in the
wording of the
charge. If the information had followed the wording of the section it could
not be criticised, although it would
have been more appropriate if this
element had been included. However there was no averment of the element
required by s.29(1)(a),
namely, that the appellant had knowledge that the
discharging of the firearm was likely to endanger McIntyre's life. What then
is
the effect of that omission?
17. Section 277(1) of the Criminal Law Consolidation Act provides that every
information shall contain,
and shall be sufficient if it contains, a statement
of the specific offence with which the accused is charged, together with such
particulars as are necessary for giving reasonable information as to the
nature of the charge. This is to be read in conjunction
with Rule 4(3) of the
Indictment Rules in the Third Schedule of the Act which states: "The
statement of offence shall describe the
offence shortly in ordinary language,
avoiding as far as possible the use of technical terms, and without
necessarily stating all
the essential elements of the offence and, if the
offence charged is one created by statute, shall contain a reference to the
section
of the statute creating the offence and, if the penalty for the
offence charged is fixed by statute, may contain a reference to the
section of
the statute fixing the penalty."
18. These provisions follow the wording of the rules contained in the
Indictments Act,
1915 (UK). The English rules have now been modified by the
Indictment Rules, 1971 which require that the particulars in an indictment
shall disclose the essential
elements of the offence provided that an
essential element need not be disclosed if the accused person is not
prejudiced or embarrassed
in his defence by the failure to disclose it. In R
v McVitie (1960) 2 QB 483 the word "knowingly" was omitted from the
particulars of an offence requiring proof that a person knowingly had
explosives in his
possession in circumstances such as to give rise to a
reasonable suspicion that he did not have possession of them for a lawful
purpose.
The Court of Criminal Appeal drew a distinction between a "bad"
indictment disclosing no offence known to the law (e.g. where it
was laid
under a statute which had been repealed) and an indictment which was simply
defective or imperfect. In McVitie's case it
was held that the indictment
came within the latter category in that it described a known offence with
incomplete particulars. It
was held that the indictment had not given
"reasonable information as to the nature of the charge", the requirement to be
found in
s.3 of the Indictments Act and s.277 of the Criminal Law
Consolidation Act. As there had been no miscarriage of justice the proviso
was applied. (See also the discussion of these provisions in the judgment of
Cox J in R v Wong (1990) 54 SASR 297).
19. Despite the deficiency in the indictment the trial judge directed the
jury that the knowledge required by s.29(1)(a) was an
element of the offence
and if the failure to allege such knowledge had been the only complaint it
would have been appropriate, in
my view, to apply the proviso. However, it
should be made clear in a direction on the elements of this offence that
knowledge implies
another requirement, namely, the existence of the actual
likelihood of endangering life. Although her Honour mentioned this aspect
in
passing at one stage in the summing up I think it should have been pointed out
with more clarity that it was an element of the
offence. In the circumstances
it is unnecessary to consider whether the convictions on the counts alleging
the offence of endangering
life were vitiated as a result.
20. Mr Peek submitted that the convictions on the first and third counts are
void for duplicity
and uncertainty. He also contended that the jury should
have been directed that there had to be unanimity upon a particular incident
before a verdict of guilty could be returned. According to the argument there
were various incidents which, on the facts led by
the prosecution, answered
the description contained in the first and third counts of "threatening Scott
Christopher McIntyre with
a firearm".
21. After reading the prosecution opening, the evidence and the summing up I
am satisfied that the incidents upon which
these two counts were based were
identified to the jury as being the pointing of the rifle which immediately
preceded each discharge
of the weapon. In my view this was made clear to the
jurors by the trial judge when she reminded them of McIntyre's evidence "of
the events on which these counts rely". She then proceeded to read the
evidence relating to the two shooting incidents including
the pointing of the
rifle at McIntyre which immediately preceded each incident. The conclusion
that her Honour and counsel for both
the defence and prosecution were of the
same mind as to the factual basis of the counts receives further support from
the fact that
the experienced counsel who appeared for the appellant at the
trial did not request further particulars of the offences as charged
in the
first and third counts; nor did he request the learned trial judge to further
identify them at the conclusion of the summing
up. This ground of appeal must
fail.
22. Finally Mr Peek contended that an independent assessment of the evidence
supports the
conclusion that the verdicts were unsafe and unsatisfactory and
that a judgment of acquittal should be entered on each count. I
have reviewed
the evidence in accordance with the duty of an appellate court when
considering this ground of appeal but in my view
it is not of such a nature as
would require the order sought. However, in the light of the deficiencies in
the summing up on the
matter of intoxication, I am of the view that the
convictions on all counts should be set aside and a retrial on those counts
ordered.