• Andrews' statement that he saw "the finger of the white man pull the trigger of the gun" is said to be implausible in the circumstances.
51 The appellant raises those matters as reasons for doubting Mr Andrews' account. So much may be conceded, but these were factual discrepancies which were before the jury. No special expertise was involved in addressing these issues. No miscarriage is established by the appellant pointing to the relative lack of attention given to the detailed differences at the trial as compared with the closer examination on appeal.
52 Section 165 provides a non-exhaustive list of "evidence of a kind that may be unreliable". As regards matters falling outside the list in subsection (1), the cases support the view that "unreliability" is concerned with matters within the special knowledge and experience of the court of which the jury may be unaware (R v Baartman [2000] NSWCCA 298, R v Stewart (2001) 52 NSWLR 301).
53 Hearsay evidence is such a matter. It is specially mentioned in s165(1). The Australian Law Reform Commission Report on Evidence (ALRC 26 vol 1, para 662) suggested that features of hearsay evidence that should be considered include:
• that the evidence relies on compounding the perception, memory, narration skills and the sincerity of both the maker of the representation and the witness who narrates it in court, particularly where the hearsay is not first-hand or the maker has no personal knowledge;
• the potential for an out-of-court statement to be susceptible to falsification, to be the product of suggestibility or to be influenced by stress;
• the inability to test an out-of-court statement by cross-examination;
• the lack of oath or affirmation.
54 In Mendham and Foster (1993) 71 A Crim R 382 this Court considered the warning appropriate to be given when a committal deposition of a witness unable to attend the trial is tendered under s409 of the Crimes Act 1900. Gleeson CJ (with whom Handley JA and Grove J agreed) said (at 388):
The authorities make it clear that, even if Sergeant Hain's deposition had been admissible under s409, the trial judge should have given the jury an appropriate warning of the approach to be taken of that evidence. His Honour was asked to give such a warning but declined to do so.
In Henriques (1991) 93 Cr App R 237 at 242 the Privy Council said:
"When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott and Barns [1989] AC 1242 at 1259, (1989) 89 Cr App R 153 at 161:
'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination.'"
The present case involved a good example of the sort of thing to which Lord Griffiths was referring. There was a clear and important conflict between the evidence of Hain and the evidence of Eastwood, relating to the matter of Hain's notebook. This is just the sort of matter that should have been dealt with in the course of an appropriate warning.
55 Two observations are immediately pertinent in relation to Mendham and Foster. A warning was requested. And secondly, the "evidence of Eastwood, relating to the matter of Hain's notebook" to which the Chief Justice referred was of a particularly compelling kind. Hain was a police officer who had said at committal that he had made no note of an incriminating admission. Eastwood was a fellow officer who said that Hain had made such a record in Hain's notebook which he (Eastwood) had seen about a week before the trial (see at 384).
56 See also Williams v R (2000) 119 A Crim R 490 at 506.
57 In my view there was no miscarriage in the present case. No warning was sought. The jury were told by the judge three times that the statement was unsworn and untested. The statement was first-hand hearsay. Unlike Mendham and Foster, there was no pall of suspicion about the circumstances giving rise to the witness' non-attendance at trial. Mr Andrews' statement was read without objection, and I infer that this was because it assisted the defence case on the more serious charge of murder. No special expertise was involved in perceiving the points of difference between Mr Andrews' evidence and the evidence relied upon by the defence about the "warning shot". That evidence had been recounted earlier in the summing up. It was not incumbent on the judge to repeat it when, reminded by counsel of his omission to refer to the Andrews statement, he read portions of that statement to the jury. He reminded them that:
… it is another piece of evidence, albeit unsworn and untested in cross-examination….
58 I would therefore refuse leave under r4 and reject the first ground of appeal.
59 I would however uphold ground 2 and set aside the conviction on the second count, given the untested but critical material in the Andrews' statement; the body of evidence (some of it from the deceased's companions) about the shot being perceived as a warning shot; the relative unlikelihood that the appellant would have missed the deceased had he shot from the close quarters described by Mr Andrews; and the defensive behaviour of the appellant after the first shooting as he retreated from the advancing deceased. I conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant shot with intent to hit the deceased. The very fact that Mr Andrews was not cross-examined means that the jury were not in a superior position to this Court, since they did not see the key witness.
60 The appellant does not submit that the verdict on the manslaughter count was unreasonable having regard to the evidence. I have already indicated that the trial judge concluded that it rested upon excessive self-defence. The conclusion that the conviction on the second count cannot be sustained does not undermine the conviction on the first count or enliven the argument that the manslaughter conviction miscarried because of the failure to give a stronger direction about Mr Andrews' evidence. I am also of the opinion that the unsupportable verdict of the jury on the second count does not undermine the conviction on the first count. The body of evidence in support of the Crown case on the first count was compelling and did not depend on the evidence supporting the second count. There was abundant evidence of the brawl taking place before the appellant ran away chased by the deceased. The jury did not, in my view, need a greater level of judicial assistance in assessing the factual controversies touching the first shooting incident.
61 Sentence
As earlier mentioned, the judge found that the appellant fired the fatal shot deliberately and that he should be sentenced on the basis that the Crown failed to prove that the appellant did not believe what he did was unnecessary in his self defence. Put briefly this was a case of excessive self defence. As the judge said the appellant's response was not reasonable in the circumstances as he perceived them. The judge was influenced by the deceased not being armed and the appellant shooting the deceased at very close range. These were major factors.
62 The judge accepted that the appellant was punched and kicked by the deceased in Darlinghurst Road relatively close to the intersection with Bayswater Road, that the deceased had acted very aggressively towards the appellant prior to the first shot being fired and thereafter until the second and fatal shot was fired. The deceased alone continued to pursue the appellant as he ran away along Darlinghurst Road after the first shot. The deceased caught the appellant in front of the doorway of a backpacker hostel and engaged him. They ended up on the ground where they wrestled and fought and struggled. The deceased, who was younger and taller than the appellant, was on top of him. It was about this time that the appellant shot the deceased. Up to that point the appellant seemed to be getting the worst of the fight.
63 Until the appellant fired the gun it had been a fist and body fight. A tall young man can do a lot of damage by kicking, punching and seizing hold of an older man. He could have either killed the appellant or inflicted serious wounds upon him. The use of a gun transformed the struggle and fatally so. Even in the heat of the moment it was obvious that the use of a gun at such close quarters was very dangerous and could well result in a fatality. The appellant reasonably believed he had to act in self defence but he went much too far and well beyond the limits of legitimate self defence.
64 The judge gave detailed and careful consideration to the question of sentence. He remarked:
In assessing the objective gravity of this crime of manslaughter, I accept that the prisoner is to be regarded as having believed that the shooting was necessary to defend himself, and I take into account all the events that preceded the shooting, including that the prisoner had been punched and kicked, that his threat to use the gun did not discourage the deceased and that the deceased was apparently having the better of the encounter in the doorway until the firing of the fatal shot. However, to use this weapon in the manner in which it was used was not a reasonable response even in the circumstances as the prisoner perceived them. The community cannot condone the use of guns, and there is a need to deter not only the prisoner but others from their use.
65 The judge accepted that the crime involved no pre-planning. He observed that he was "concerned to impose punishment for the use of the weapon with its consequences." The judge reminded himself that a human life had been taken and that a weapon was used to take it.
66 The appellant was born on 14 July 1962. His criminal history revealed some minor offences in the early eighties and a mid PCA in early 1991. That history was of no consequence and he should be regarded as a person of good character for sentencing purposes. There was a formidable body of evidence by way of testimonials as to his good character.
67 The judge made these important remarks as to the appellant's subjective features:
The prisoner has been in a relationship with his current de facto wife for some nineteen years His de facto wife, Ms Jennifer Dunn, gave evidence of her relationship with the prisoner. There is one child of the union, Andre, who suffers from cerebral palsy. Andre was born on 17 June 1991. In addition to that disability the son has recently been diagnosed with dystonia, a rare form of muscular disorder. Ms Dunn said that the prisoner had pursued employment as a scaffolder and rigger but once it was appreciated that the son would need very extensive care, it was decided that the prisoner, whose employment was less remunerative than that of Ms Dunn, would become the full time carer and Ms Dunn would pursue remunerative employment. According to Ms Dunn, those roles were pursued until the time the prisoner went into custody following the verdict of the jury.
Ms Dunn said that she will be standing by the prisoner, and I accept that this is so. I also accept the evidence of the witness to the effect that their son and the prisoner have a very close relationship and that the son is very dependent upon his father. I accept that Andre misses his father deeply. As a consequence of the prisoner's imprisonment, Ms Dunn had to give up her employment and to assume a full time role caring for her son. I have no doubt that the prisoner's imprisonment will cause financial hardship to his wife and child, as well as acute emotional distress which will, doubtless, be shared by the prisoner himself.
Mr Ben Patynowski is an engineering surveyor with the Roads and Traffic Authority who has known the prisoner for twenty years, and he gave evidence concerning that association and his favourable assessment of the prisoner as a loving husband and a very effective caregiver of his son.