Proposed Ground Two: miscarriage of justice through wrong admission of intent to kill
61It was entirely correct for the primary judge to ask Mr Weller, appearing for Mr Grant, whether his client intended to kill Mr Matheson or merely intended to cause grievous bodily harm. When Mr Weller, unequivocally, answered the former, it was entirely correct for his Honour to sentence on that basis. This proposed ground of appeal turns centrally on whether this Court can and should go behind what Mr Grant's former advocate told the Court. As earlier recounted, evidence on this issue from both Mr Grant and Mr Weller was given, and tested, in this Court.
62It is best to return to first principles. The Crimes Act 1900 (NSW) defines murder and manslaughter in s 18. Relevantly, s 18(1) defines murder where the act of the accused causing the death charged was done with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm. However, other provisions provide that a killing which otherwise would amount to murder is to be treated as manslaughter; as was said in R v Lavender [2005] HCA 37; 222 CLR 67 at [2]:
"In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender's conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind."
63In addition to ss 23 and 23A, which will result in conviction for manslaughter when there is provocation or substantial impairment by abnormality of mind, s 421 of the Crimes Act reflects a third species of voluntary manslaughter, namely where the excessive self-defence of the accused has caused a death. It is this section, which was enacted so as to reverse the change in law effected by Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, which is presently relevant. It applies, relevantly, where the person uses force that involves the infliction of death, and the conduct is not a reasonable response in the circumstances as he or she perceives them, but nevertheless the person believes the conduct is necessary to defend himself or herself or another person. In those circumstances, s 421(2) provides that:
"The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
64The operation of these provisions was most recently restated in Lane v R [2013] NSWCCA 317 at [50], where this Court said (emphasis added):
"For voluntary manslaughter to be proved, it is necessary that the Crown first prove all of the elements of murder ... With respect to s 23, if there is evidence that the act causing death was done or omitted to be done under provocation (as defined) the onus is on the prosecution to prove something additional - that the act was not done under provocation. Similarly, with respect to s 421, if the defence of self defence is raised, the onus is on the prosecution to prove that the act causing death was not done in self defence. The essential thing is that, before voluntary manslaughter can even be considered, all of the elements of murder must be proved."
65Mr Grant's plea of guilty to manslaughter on the basis of excessive self-defence meant acceptance by Mr Grant that a reasonable person in his position would not have considered that his response was reasonable in the circumstances. Conversely, its acceptance by the Crown also meant that the Crown accepted the reasonable possibility that Mr Grant genuinely believed that it was necessary to shoot Mr Matheson in order to defend himself.
66What is more, Mr Grant's plea of guilty also meant that he accepted that he held one of the mental states sufficient to amount to murder, but for the availability of s 421. That meant an acceptance that he intended to kill, or to cause grievous bodily harm to, Mr Matheson, or else had acted with reckless indifference (the latter may be put to one side for present purposes, having regard to the evidence adduced on this appeal). Hence his Honour's repeated questions of Mr Weller as to Mr Grant's intent, including the question "What was the specific intent for murder?"
67Mr Grant was originally charged with murder, and subsequently, with manslaughter. Mr Weller was acting for him at all relevant times. The propositions in the previous two paragraphs are basic.
68This proposed ground is not directed to some contestable forensic decision, such as whether to lead particular evidence from Mr Grant, or call a character witness, or cross-examine on a particular basis, where the difficulties referred to in the principles extracted above loom large. It is notoriously difficult to re-assess from the written record available to an appellate court the circumstances leading to such choices, and it is often the case that there is no axiomatically right or wrong approach to questions of that nature. This is one reason why, as Basten JA said in Lee v R [2013] NSWCCA 68 at [139], that "statements as to counsel's beliefs are of doubtful relevance" in an appeal.
69To the contrary, proposed Ground 2 is directed to something which is basal. Mr Grant's plea necessarily accepted that he had killed Mr Matheson with an intent which, but for his excessive self-defence, would amount to murder. His state of mind at the time was crucially, and manifestly, relevant to sentence. His plea was consistent either with an intention to kill, or an intention to cause grievous bodily harm. The primary judge entirely properly and predictably asked Mr Weller for his position on that basic issue.
70Yet the transcript conveys the impression that Mr Weller did not at the time of the sentencing hearing appreciate the distinction. Why else did the judge have to ask three times for the accused's intention before the answer "Well, he intended to kill, your Honour" was given? The impression gained from reading the exchange is that the question itself, and the fact that its answer was regarded as highly material by the sentencing judge, came as something of a surprise to Mr Weller.
71That impression was confirmed by Mr Weller's evidence in this Court, salient aspects of which are reproduced above, and in particular his evidence that Mr Grant repeatedly stated that his primary intention was to stop Mr Matheson. The inference to be drawn is that Mr Weller did not explain to his client the distinction between the two states of mind, both of which were consistent with manslaughter, and also with wanting to stop his attacked, and did not obtain clear instructions on this basic issue.
72That impression is in no way undermined by the cross-examination of Mr Grant on the nature of the instructions he gave and the circumstances in which they were given. Although Mr Grant was cross-examined extensively on his state of mind when he shot Mr Matheson, he was scarcely cross-examined on his evidence (notably, paragraph 8 of his affidavit of 31 October 2012, reproduced above) directed to what he had been told by Mr Weller and the instructions he gave.
73It is not necessary for the purposes of this appeal to resolve the dispute between Mr Weller and Mr Grant as to whether the latter said that it was a "kill or be killed" situation. Let it be assumed, favourably to Mr Weller, as he repeatedly maintained (to the extent of saying he had an actual recollection), that that was how Mr Grant put it. We accept Mr Weller's evidence that "[t]hat was the extent of the instructions" and that, consequently, Mr Weller was exercising his own judgment in conveying to the primary judge that his client had an intention to kill.
74The conclusion drawn by Mr Weller based on those instructions was not an inevitable one. "Kill or be killed" is a colloquial and evocative turn of phrase which is often used metaphorically rather than literally. It connotes a state of mind whereby Mr Grant felt that he was fighting for his life; cf R v Jones [2007] NSWSC 1333 at [76] and needed to stop Mr Matheson. But it does not inevitably connote that Mr Grant intended to kill his attacker.
75We also reject the Crown submission, advanced in writing, that in the circumstances of this case, an intention to cause grievous bodily harm as opposed to an intention to kill was "not material of such significance that the sentencing judge would have regarded it as having a real bearing upon his decision". To be fair, counsel for the Crown made no attempt orally to support it.
76Generally, an intention to kill reflects greater culpability than an intention to cause grievous bodily harm: Apps v R [2006] NSWCCA 290 at [49]. Whilst that is not inevitably so: see R v Hillsley [2006] NSWCCA 312 at [16], it is difficult to contemplate a case of excessive self-defence on the offender's own property where his or her state of mind would not be material. But in any event, it is clear that in the circumstances of this case, the gravity of Mr Grant's offence was affected by whether he intended to stop Mr Matheson's attack by killing him, or by causing him grievous bodily harm.
77Here it was basic that Mr Weller had to obtain clear instructions about his client's state of mind. That did not occur. The primary judge was satisfied of an intention to kill because of Mr Weller's statement. That intention was not something otherwise proven beyond reasonable doubt, bearing in mind the circumstances of the shooting. Although the firing of two shots to the chest was consistent with such an intent, it was also consistent with Mr Grant's evidence in this Court, namely, an intent to cause grievous bodily harm so as to prevent Mr Matheson's imminent attack. Mr Grant's intent was material to the sentence imposed by his Honour. Mr Grant was entitled, on this basic point, to have his position correctly conveyed to the primary judge. There was in the circumstances a miscarriage of justice engaging the principles referred to in dealing with proposed Ground 3 above. In our view this ground is made out.