Herbert, N. & Ors v. The Queen [1982] FCA 159

NGAIRE HSRBERT, PAMELA SAMPSON and RHODA WURRAWILYA v. THE QUEEN

{N THE VEDERAL COURS OF AUSTRALIA NORTHERN TEURITORY DISTRICT REGISTRY) Nos. NT G 34, 35 and

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY

NGAIRE HERBERT, PAMELA SAMPSON and RHODA WURRAWILYA

JUDGES MAXING ORDER: Toohey, McGregor and Sheppvard JJ. DATE OF ORDER: 30 July, 1982

The convictions of the appellants for murder be set aside.

There be a new trial of the appellants on the charges of murder, such new trial to take place at such time

It is common ground tnat tne deceased died as the result of blows inflicted by each appellant upon his head with a length of water pive. The attack upon him occurred at night in the grounds of the Parap Hotel, Darwin. Medical evidence called in the case for the Crown tends to establish that the deceased was struck 11 times. Each appellant admitted inflicting some of the blows. These admissions were made in statement to police officers and in statements made by the appellants to the gury at their trial. The terms of their admissions, the evidence of an eye witness to the attack and the medical evidence earlier referred to establish thet the attack was a most violent and brutal one.

Each of the appellants had had a substantial quantity of liquor prior to the incident. This 1s established not only in statements made to volice officers and in statements made by the appellants at tneir trial but also by other evidence. It was not a matter which was in contest either at the trial or during the proceedings before us. When sentencing the appellants the learned trial judge proceeded upon the basis that

eacn of the appellants had nad a substantial quantity of

NT G 34, 35 and ) = = a Nos. NORTHERN TERRITORY DISTRICT REGISTRY ' 36 of 1981 )

NGATRE HERBERT, PAMELA SAMPSON an we _ and RHODA WURKAWILYA

Appellants AND THE QUEEN Respondent CORAM: TOOHEY, McGREGOR and SHEPPARD JJ. TOOH=Y AND SHEPPARD JJ. 30 July, 1982

The appellants in this matter appeal against their convictions for murder anc sentences of life imprisonment imposed as a result thereof, Each appellant was charged with the murder of one Jan Draskoveic on 29 May, 1981. The trial commenced on 13 October, 1981, and was concluded on 30 October, 1981, when the gury returned verdicts of guilty. The sentences of life imprisonment were imposed on 10 Nov- ember, 1981.

Each of the appellants is an aboriginal and, by reason of s.6(1C) of the Criminal Law Consolidation Act, a life sentence was not mandatory. It was open to tne gudge to 'impose such penalty as, having regard to all the circumstances of the case,

drink in the period leading up to the attack on the deceased. In that view he was plainly correct. The appellants were represented by counsel at

"intoxicated condition at the time of the assault. It

was put to the gury that by reason of their drunken state the jury could not be satisfied beyond reasonable doubt:- (1) that their actions in striking the deceased with the length of water pipe were voluntary; or (2) that they had, at the time the blows were inflicted, an intention either to kill or

If the first submission were accepted, the second would not arise for consideration. Its acceptance would necessarily result in the acquittal of the appellants in respect of both the crimes of murder and manslaughter. The regection of the first submission but the acceptance of the second, although leadirg to acquittals on the charges of murder, would very probably have led to convictions for manslaughter. In the result the jury, in deciding to find the appellants guilty of murder, must be taken to

were abandoned. Shortly stated the only grounds ultim-

on matters connected with voluntariness, intention, intoxication and the onus of proof. His Honour's summing up and further directions given to the gury both as the result of sub- missions made by counsel and questions asked by the gury itself lacked balance and fairness,

over emphasised the strength of the Crown's case and failed adequately to put the appellants' cases. For those reasons the summing up and further directions were so unfair to the appellants that the trial had miscarried.

His Honour misdirected the jury by telling them that a statement made by the appellant Wurrawilya to the police officers that she was "paralytic

have regard for the purpose of determining whether that appellant was intoxicated at the relevant time.

(4) In the case of the appellant Wurrawilya his Honour erred in not leaving to the gury the question of provocation, It was submitted that 1n her case the jury should have been directed that the Crown was obliged to prove beyond reasonable doubt that the attack by her upon the deceased was unprovoked.

It is to be observed that grounds 3 and 4 concern only

the appellant Wurrawilya. The principal argument in the appeals concerned grounds 1 and 2. It 1s convenient to deal with them together. It 1s farst necessary to refer to the relevant parts of the summing up and the course the trial followed between the gury's first retirement at 10.48 a.m. on 30 October, 1981, and their return with verdicts of guilty at about 9 o'clock the same evening.

We refer firstly to his Honour's summing up. His Honour

gave the gury 2 clear direction that the onus of proof remained

throughout upon the Crown and that the standard of proof was proof beyond reasonable doubt. His Honour also gave the jury clear directions as to the elements of the crime of murder. He told them quite plainly that they had to be satisfied beyond reason-~ able doubt that at the time each of the apvellants inflicted blows upon the deceased, her acts in striking him were voluntary and that she intended eltner to kill him or cause him grievous bodily harm. His Honour also made it clear to the gury that, althougn drunkenness or intoxication was not a defence to the crime charged, it was a matter to be taken into consider-~- ation "in deciding whether the Crown has proved beyond reasonable doubt the voluntariness aspect and the intent of the accused", His Honour continued: "As experienced people of common sense you will know that intoxication can vary greatly 1n degree, and it affects different people in different ways. A person may be so intoxicated that his will is warped, his disposition altered, his self control weakened, so that whilst intoxicated he does an act voluntarily and intentionally, but 1t is an act that in a sober state he would never do, when a person is intoxicated to that extent his

explains his actions, has not destroyed his will or precluded the formation of the relevant

Yintent. Indeed, intoxication to this degree might well explain how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. Intoxi- cation might render an accused person less aware of what he is doing, or less aware

of the significance or the consequences of his actions, or more likely to be swayed by others, induced, influenced by others, but nevertheless his actions are voluntary, they are his actions, and if he intends to per- form them the drunkenness does avail him nothing. He may not even remember what he said or what he did, but that does not necessarily indicate either an absence of will or intent.

I repeat, it is very important that you understand this. Intoxication as such, does not provide an accused person with an excuse in law - no excuse for what he did but it is certainly a factor that you have to take into account in order to decide, as a matter of inference, whether his mind went with the act and whether the necessary intention to kill or inflict grievous bodily harm is proven,

You might think these accused seem to drink all day most days, but they still function all right, and they retain good recollection of what they have been doing."

There is no further material reference in the summing up to voluntariness, intention or intoxication. It is, accordingly, convenient to deal now with the only criticism which was made of this part of the summing up. The words upon which that criticism 1s based are, "ut nevertneless his sctions are voluntary, they are his actions, and if he intends to perform them the drunken- ness does avail him nothing". It was submitted that those words had the effect of running together and confus- ing the effect intoxication might have upon the two quite separate concepts of voluntariness and intent. The result was that the gury might not have had clearly in thear minds the need to be satisfied that the acts of striking were voluntary, that is the result of a conscious exercise of will on the part of each appellant, anda further, that at the time of those acts the appellants each intended to kill or inflict grievous bodily harm upon the deceased.

In our oplnion there was no misdirection. Earlier his Honour,as we have mentioned, had given the jury clear and correct directions on the matters of voluntariness and intent. His Honour had dealt with those matters quite separately and distinctly. He did not then mention the

effect which intoxication might have in relation to either.

When he came to deal with intoxication he did so for the purpose of explaining to the gury the place it should haye in their deliberations both as regards voluntariness and as regards intent.

A fair reading of all that he said on the topic does not,in our opinion, lead to the conclusion that he confused the two concepts. Desvite the use of the word "intends" in the passage complained of, he 1s there dealing, and only dealing,with voluntariness.

He 1s not dealing with intent. When he says thet 1f

a person intends to perform"the acts, he is referring to the infliction of the blows and is saying that if the person intended to perform such acts, his actions are voluntary. Drunkenness will then not avail a person claiming that the Crown has failed to establish that his will did not go with his actions.

That his Honour was not dealing with the relevant untent which the Crown had to establish 1s made perfectly clear in what later follows. He there drew a clear distinction between the two concepts and told the jury

that 1ntoxication was a factor which they had to take into

account in order to decide whether the necessary intention to k211 or inflict grievous bodily harm was proved.

His comment in the final part of the summing up which we have quoted was amply warranted upon the basis of what the appellants had said to the police officers and in their statements made at the trial. His Honour had earlier told the jury in plain terms that the facts were for them and thet if they disagreed with any observation upon the facts made by him, trey should disregard it.

It follows that if there were no more, we would con- clude that there had been no misdirection concerning voluntariness, intent, intoxicution or onus of proof.

We return to the course of the trial after the jury's first retirement at 10.48 a.m. In the absence of the gury counsel made submissions in which they asked for a number of further directions. Counsel for the appellant Herbert submitted that, although his Honour had put the prosecution case "very forcefully", his Honour had not, as we, understand the submission, put the defence case adequately.

There followed a lengthy discussion between his Honour and

counsel. Counsel's submissions were supported by counsel for the appellant Wurrawilya. In the upshot his Honour decided that he would give further directions.

These concerned the matters of intent and 1untoxication

and some other matters as well. The material part of

what he said to the gury on their return is as follows:

"Mr, Foreman, ladies and gentlemen, I have been asked by counsel - some counsel - to give you

some further directions in this case, and I propose to accede to their request. I am not going to delay you very long, but I have been asked by Mr. Abbott, for the accused, Herbert, to remind you of the defence of his client, Ngaire Herbert. Shortly, it is this, that although she did the act alleged against her - I withdraw that. Although she did an act, namely of wielding the pipe and hitting the man on the head, by reason of the ingestion of alcohol, she was too drunk to form the necessary intent to kill or inflict grievous bodily harm,

and therefore, so the argument runs, and so her case runs, she is not guilty of murder.

Now, I do not propose to say any more about it except just to remind you that the onus of proof is on the Crown and the standard is proof beyond reason- able doubt, Mr, Abbott's argument is that you cannot be satisfied beyond reasonable doubt that she had the necessary intent.

Mr. Avery has asked me to remind you that his client too says that by reason of her ingestion of alcohol and although she did an act, the necessary intention was missing 1n her case also, and tnat the Crown has not proved beyond reasonable doubt that she had the necessary intent to kill or inflict grievous bodily harm, So really he says that she was too drunk to inform (sic) the intent too.

Now would you please return to your jury room to consider your verdict."

There is no reasonable ground for complaint about anything that his Honour there said. Before putting his further directions to the gury his Honour discussed with counsel the substance of what he would Say. Counsel accepted his formulation of it. What he said was in accordance with that formulation. Before retiring his Honour asked counsel if there was "anything else", There was no response to his question. The time of the gury's second retirement 1s uncertain but was before 11.30 a.m.

In our opinion his Honour's further directions put paid to any suggestion that he did not adequately put the appellants! cases to the gury. Their cases were clearly and adequately put. It is convenient here to mention that complaint was made of language used by his Honour when putting the Crown case to the jury in his summing up. He said:

"Shortly put, the Crown case 1s this, and it is stark in these terms, because he would not give them his money, a drunken old cripple with 1 leg, was beaten to death in the beer garden of the Parap Hotel by means of repeated blows to the head with an iron bar and it was these 3 accused that did it",

Particular complaint was made about the words "a drunken

old cripple with 1 leg". It was said that these were emotive.

Perhaps they were, but factually tney were correct. We do not take the view that their use 1s something which should lead to the conclusion that the summing up was so lacking in balance or so unfair as to warrant a new trial.

We return to the course of the trial. Some time after their second retirement the gury returned with a request that certain evidence be read to them. That was done. It is not material to refer to the detail of the evidence of which they wished to be reminded. Nothing that his Honour then said or did was relied upon for the purpose of demons- trating imbalance or unfairness in the way that he ultimately left the case to the gury. After the evidence had been read the jury retired for the third time.

a note to nis Honour which was in the following terms:

a criminal act", The word "(some)" would seem to indicate that some only of the gury wished for further directions.

Before sending for the jury his Honour showed the note

to counsel, None wished to say anything except counsel for

the Crown whose submissions are not relevant for present purposes. When the gury returned his Honour read out the jury's note. He asked the foreman if that was the question and the foreman said it was.

"All right, well that might take me a little while, Mr. Foreman. I will not dilate upon

before tnat the intent has to be an antent to kill, or an intent to inflict grievous bodily harm, and that the onus is on the Crown to prove that fact as being the intent of the accused - the Same as any other fact 1n the case - it is an element of the crime of murder.

That fact cannot be proved by any method except by deduction from the known facts or the facts that you find to be established by inference or by conclusion and in drawing tne inference, or coming to a conclusion you take account of all the circumstances and 1f you think of the circum- stances 1n relation to any particular accused is that she was affected by alcohol, then you put that into the conundrum as to whether she was affected by alcohol to the point - or as to whether she had the necessary intention.

Now, in doing that, the observations I made to you were these. Drunkenness or intoxication is not of itself a defence to any crime. Self induced intoxication or drunkenness 1s never a defence to a crime. It is merely something that has to be put into the scales in determining whether you are satisfied beyond reasonable doubt about that particular element of the crime - in this case, the intent. And I said to you before and I repeat, that as experienced pecple you will know that intoxication varies greatly in degree and it also affects different people in different ways.

will is warped - his disposition altered - his self control weakened. So that whilst intoxi- cated he does an act voluntarily and intentionally, but it is an act that in a sober state he would never do. When a person is intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions has not destroyed his will,

Indeed intoxication to that extent may well explain how an accused person, otherwise of good character and stable disposition came to commit the offence witn which he is charged. I guess we have all done things when we have been intoxicated, or affected by liauor to some greater or lesser degree which we might think about the next day and think, 'Well, I shouldn't have done that.' But nevertheless we did it and we had the intention of doing it at the time when we did it.

Intoxication might render an accused person less aware of what he 1s doing - or less aware of the significance or the consequences of what he 1s doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence - it avails him nothing. And as I said to you earlier, you might not even remember the next day - you have all heard of alcoholic amnesia. A person may not even remember the next day what he did - how he got home - who drove the car - that sort of thing, but nevertheless tne fact that he does not remember does not necessarily indicate that he did not antend to do what he did.

So I gust repeat to you intoxication does not provide an accused person with an excuse in law. It 1s no excuse in law what the person did. It is simply something that you take into account in draw~ ing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the iron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that these accused seemed to function very well, whether intoxicated

"or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events.

Now, unless I can help you further that is the way you put alcohol in the scale and you put drunkenness in the scale. I suppose tne first question for you is if you think they were - or in relation to each accused, do you think that they were so affected that they were incapable of forming an intent? Do you think they were so drunk that they did not know what they were doing? But you see, even in saying that, I think that is a too bland a description. As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk.

Now, I think that 1s about as much as I should say to you, Mr. Foreman, ladies and gentlemen. Would you please retire now again and consider your verdict", The gury retired for the fourth time at 5.09 p.m. No relevant request for any alteration to what his Honour had said was made by counsel for any of the appellants.

A number of submissions were made about what his Honour then said. We prefer to leave dealing with these until we have completed the account of the course of the proceedings down to the time the gury returned witn verdicts of guilty of murder.

At 6.14 p.m. the gury returned to Court at his Honour's

request. He observed that the gury had retired some six

hours beforehand after making allowance for their return to

Court for further directions and for lunch. He told them that he was empowered to discharge them after a period of six hours if they had not reached agreement. He said that he was reluctant to discharge them and that he thought they should continue to endeavour to reach agreement. He asked the foreman whetner he thought there was a prospect of agreement. The foreman told him that the jury could not reach "consensus" on at least one point but expressed the view tnat agreement might be reached after more deliberation. His Honour then said: "Well, I only repeat to you that if you do not reach a verdict in tne matter because you are not unanimous it is a tremendous waste of time and funds and energy, and as I say the result is probably that the whole process will have to be gone through again and for the life of me I do not know why that should be necessary. All I can say 1s that individually you should be listening to the views of others and not gust being intract- able. As I said it is not the proper exercise of the duty cast upon an individual juror to simply be impervious to the view of the magority."

It should be mentioned that towards the end of his summing up his Honour had told the gury that during their deliberations they should discuss the matter fully amongst themselves and be prepared to listen to the views of other

gurors. He cautioned them against being stubborn and

said that he was encouraging them to "strive to reach unanimity". He had added, "Of course, if you do not reach agreement 1n an unanimous way in all probability these three accused will be tried again, so we go through tne whole process again",

After saying what he had in the passage earlier quoted his Honour told the gury that if they had not reached a verdict by 6.30 p.m. he would not take one before 8 p.m. He told them that arrangements would be made for them to be provided with a meal. At 6.20 p.m, the gury retired for the fifth time.

At 8.25 p.m. they returned, They had sent a state- ment to his Honour which was in the following terms, "The gury has reached a stalemate, as some members cannot reach consensus on the finer technicalities of alcohol warping judgment and therefore affecting the intent to cause or inflict grievous bodily harm", Prior to bringing the jury back the gury's note was shown to counsel. Counsel for the appellant Wurrawilya made some submissions but it is not material to refer to them.

"Well, Mr. Foreman, we are making something of a marathon out of this, but nevertheless it is important that you have further instructions if

that 1s what you want, I have received a note from you which says this:"

"I gather from that that you would like some more direction about that, Mr, Foreman?"

"Al] right. I think it 1s about time you started calling upon your personal experience. That is,your knowledge of yourselves and the knowledge of people generally. It would not avail an accused person anything to say, 'My judgment was warped! - talcohol warped my judg- ment' - using the words of the document you have gust given me - that is not what the criminal law 1s about.

Very frequently crimes are committed because a person succumbs to a temptation because of alcohol tnat they would not otherwise succumb to. It 1s not a question of whether the Judgment was merely warped - as I put to you earlier - 1t is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt tnat the intention that you would otherwise infer from all the circumstances was gust never formed.

Do you remember the example I put to you about the man beating another man over the head with a piece of stick and saying, 'Hand it over.' Would it really make any difference to your conclusion aif you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm and in this case to kill or to inflict grievous bodily harm.

You might ask yourselves this - 1f you are satis- fied beyond reasonable doubt that the i1ndividual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alconol induce some

"other sort of intention? Or would alcohol merely release them from the restraints that they might otherwise impose upon themselves

or might otherwise recognise as constraints as to whether they ought to wield the iron bar or not?

I do not think I can tell you anything more than that, ladies and gentlemen. It is nota question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased is enough (sic). That does not exclude the intent. The fact that a person's gudgment is affected - warped, in the terms of the document set out to me is not enough. That does not remove the intent. I do not want to read to you everything that I nave said to you before, but as I say 1f a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal

combination and they are a very frequent combdination in case after case in the criminal area.

I do not think I can help you further - would you please retire, ladies and gentlemen".

We have placed the notation (sic) after the words "1s enough", but the plain sense of what his Honour was saying requires the word "not" to be supplied between the word "1s" and the word "enough",

The gury retired for the sixth time at 8.30 p.m. After they had done so his Honour asked counsel if there was anything

At 8.51 p.m. the gury returned with verdicts of guilty against each appellant. The jury had thus been out for a little over 10 hours but anclud- ing periods during which they were given lunch and dinner and were furtner directed either because of submissions by counsel or their own questions or requests.

If there has been a miscarriage of gustice in this case it occurred, in our opinion, when his Honour said wnat he did to the gury in response to their requests for further directions at 4,57 p.m. and 8.a5 p.m. Tne first of the requests which they made asked his Honour to explain to them "in explicit terms the guide- lines pertaining to alconol in relation to intent to commit a criminal act", Thus the request was for a further redirection on the question of how they should view the intoxicated condition of the appellants when determining wnether they were satisfied that the Crown had established the requisite intent. His Honour

proceeded to comply with the jury's request. In our

opinion there are tnree possible criticisms of what

seems to have left the question of intent and returned

to voluntariness about which the gury were apparently

not concerned, He speaks of the intoxicated condition

of a person not destroying his will. We do not, however, regard that, 1n the context of the entirety of what his Honour said, as significant. More important is what immediately follows wnen he speaks of alcohol not having "precluded his ability to form the intention". Ultimately the guestion 1s not one of ability or capacity to form

the recuisite intent; it is a question of the actual formation of that intent. It is true to say that ifa person is incapable of forming an intent, he will not

have the intent. But, if on the other hand, he is found to have capacity to form the intent, it does not necessarily follow that he in fact formed it. If the question of capacity to form an intent is to be put to a gury, they must also be left with the further question of whether,

notwithstanding capacity, if tney find it, they are

satisfied that the intent was in fact present; we refer to R. v. Garlick (1980) 70 Cr. App. Rep. 291 ana R. v. Kamipeli (1975) 2 .N.Z.L.R. 610. These remarks of his Honour must be read in the context of the entirety of what he said to tne gury at this time. In other passages his Honour has made the correct position quite clear,

But one needs also to consider what he has said in the second last paragraph (p.16 hereof). He there returned to the question of capacity - "do you think that they were so affected that they were incapable of forming an intent", This question was followed by anotner - "do you tnink they were so drunk that they did not know what they were doing". His Honour then left the gury with his remark about wnat he nad gust said being "too bland a description". He added, "as I say people do all sorts of things with tne necessary intention, even though they might be pretty crunk",

The gury were asked to continue their deliberations. They would have returned to the jury room with his directions about capacity to form the intent and whether tne appellants were so drunk that tney did not know whet they were doing as the last things of significance said

to them. Nevertheless those directions were sala to be

be said that neither of his Honour's questions would

have been of ultimate assistance to the gury in resolv- ing the critical question of whether the Crown had established that at the time the blows were inflicted

bodily harm to the deceased, Furthermore, both guestions are themselves so framed as to appear to throw the onus on to the appellants to prove positively that they did not have the capacity to form the intention or were so drunk that they did not know whet they were doing. In the light of what his Honour had earlier said so clearly about the onus being always upon the Crown that may not have been wnat the gury took from it.

What needs to be done is to look at the entirety of what his Honour said and to weigh up the impact it may have had upon the gury. Wedo not find it useful to come to any separate conclusion about what his Honour said at 4,57 p.m We prefer to rest our conclusion upon the con- sideration of all that occurred between 4.57 p.m. and the

time when the gury returned with verdicts of guilty of

murder. However, we do say, with great respect to his Honour, that his reference to capacity to form an intention and his last two questions, couched

as they were in language which seemed to thrust some onus on to the appellants, may have been the source of the jury's uncertainty expressed in their next request for directions which was dealt with over three hours later at 8.288 p.m. In between times there had been his Honour's exhortation for

At the outset two things need to be said about the terms of the gury's last request, The gury's note includes the phrase "alcohol warping gudgment". His Honour picked up the word "warping" and seems to have referred to it as if 1t were the gury's word, as in a sense it was. But the word had been used by his Honour in his original directions to the gury. He had said (p.6 hereof), "A person may be so intoxicated that his will is warped", He used the same words when he came to give the gury further directions at 4.57 p.m. (p.15 hereof). The express- 1ons he used come in turn from a passage in the

judgment of Barwick C.J. in O'Connor v. The Queen (1980)

Chief Justice has plainly been drswn upon by his Honour for the purpose of his summing up, and, of course, there could be no complaint about his Honour having followed such a course. But we think it important to take into account the fact that the word "warped" was first used by his Honour when one comes to consider what he further said to the jury at 8.25 p.m.

In what his Honour then said he has picked up the jury's reference to the word "warping" as an indication that their only concern was about the state of the law if all they found was some warping of the aopellants' judgments due to intoxication. We think there is a question as to whether this was a safe course to adopt. Because of his Honour's earlier use of the word, it may have been that it was the gury's way of directing his Honour's mind to the whole question of the effect intoxi- cation might have upon the formation of the relevant intent.

Secondly, the gury's note opened with the words, "The jury has reached a stalemate .....". That statement

was made after a retirement of almost 10 hours (including

breaks and interruptions) and after the foreman had informed his Honour some two hours earlier that the

gury were unable to reach "consensus on at least one point", In the light of their earlier request for an explanation "in explicit terms" of "the guidelines per- taining to alcohol in relation to intent ...."(p.13 hereof), it seems likely that the point whicn was troubling the jury at 6.15 p.m. was alcohol as it affected the formation of the relevant intent. Thus for a period of at least three and a half hours the gury were ina state of disagreement about the law on this matter and, for that reason, divided about wnat the outcome of the case should be. The matter which was troubling them was the very matter upon which the defence of the appellants was based. The two matters we have mentioned show that the situation was one which called for extreme care. Indeed, so it seems to us, his Honour ought at 8.25 p.m. have given serious thought to discharging the gury, especially bearing in mind the period for which they had been retired, If, as was the case, the decision was made to go ahead, the jury were entitled to a clear

redirection on the law which applied. It was contended

in argument that no more was required than a clear statement that the mere fact that a person's gudgment was warped by alcohol provided the appellants with no excuse or defence for what they had done, Taking the jury's statement literally, that may be true, although the use by the gury of the expression "finer technical- ities" militates against such a narrow view. Be that as it may,it is our opinion that the whole of the cir- cumstances of the case must be taken into account, To adopt such a confined view of the gury's request was, in our opinion quite unsafe.

His Honour's further charge to the gury should be read witn the matters we have mentioned in mind. With respect to him,we do not find in wnat he said the careful direction which was so obviously called for. Read as a whole his further remarks are an exhortation to convict the appellants. Their climax is the last statement (p.20 hereof):

"but as I say if a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal area."

Earlier his Honour had asked rhetorically (pp.19~20

" You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alcohol induce some other sort of intention?" Tne last question 1s quite inapt. The relevant effect which alcohol may have had, may have been such that the appellants may not have formed the requisite intention at all. If that were tne gury's view, they were bound, by reason of the doubt that in that event they must have had, to acquit tne aopellants of murder, There are other matters to which reference could be made to show that his Honour's further directions were in all the circumstances inadequate and inappropriate for what was then required. We do not go to the detail of them because it is tne 1mpact of what the jury were told taken as a whole which ought to be considered,

We do, however, mention one passege which was the subject of severe criticism in the submissions of senior counsel for tne appellant Sampson. We mention the matter because we do not accept the criticism which was made.

The passage 1s that in which his Honour said (p.19 hereof): "it is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt

that the intention that you would otherwise infer from all the circumstances was just never formed."

We do not think that the criticism made by counsel 1s warranted because all that his Honour 1s saying is that the intention which might well be inferred 1n a case where there was no evidence of intoxication, might not be inferred where there was evidence of it.

However, for the reasons earlier given we are satisfied that the matter was left to the gury, particularly by reason of what his Honour finally said to them at 8.25 p.m., in a way which exhorted tnem to convict and did not give them that assist- ance and balance which was so plainly required. No more tnan 20 minutes later the gury had reached their decisions to convict each of tne appellants. We

the first, ground of appeal should be upheld. Although his Honour's earlier directions about intent and the effect of alcohol upon the formation thereof contained no error, the same cannot be said in relation to

his Honour's directions given at 4.57 p.m. and 8.25

have already been stated (pp.23-24). What he said at 8.25 p.m. exacerbated the position.

Once one takes the view, as we have done, that the gury were entitled, at 8.25 p.m., to be fully directed in relation to alcohol ane intent, it must follow that what his Honour then said was in all the circumstances inadequate. If, as we think should be done, what his Honour saié at 4.57 p.m. is read together with what he said at 8.25 p.m., one 1S reinforced in the conclusion that the directions given the jury in response to their

Foreseeing that this might be the view which the Court would adopt, counsel for the respondent nevertheless submitted that we ought not to be satisfied that there had been any

principle which should be applied was that a new trial should be granted if the appellants may, by what his Honour has done, have lost a chance which

was fairly open to them of being acquitted; see Mraz

v. The Queen (1955) 93 C.L.R. 493, per Fullagar J. at p.515; Driscoll v. The Queen (1977) 137 C.L.R. 517, per Barwick C.J. at p.524; and Duff v. The Gueen (1979) 28 A.L.R. 663 at p.674, Counsel for the respondent supported his submission by an extensive review of the evidence in the case. He demonstrated, in our opinion, that the Crown case was a very strong one. In relation to the issue of intention he referred us to statements made by the appellants to the police officers who investigated the crime, to the records of interview of two of the appellants and to the statements made by the appellants at the trial. These all tend to indicate, as the learned trial gudge emphasised repeatedly to the gury, that the appellants each had a clear recollection of the events of the night in question and of what their own parts in those events were.

We have taken all these matters into account. But there 1s substantial evidence and other material which,

if accepted by the gury, would have established intoxication

having been in the earlier stages of the summing up

safely reach the conclusion that the appellants were

convictions cannot, therefore, in our opinion stand. Counsel for the appellants Herbert and Wurrawilya

convictions of manslaughter in respect of each appellant.

Senior counsel for the appellant Sampson did not join

in that submission, although he did not opvose that

course being taken. Counsel for the respondent strongly

opposed substituting convictions of manslaughter for

were of opinion that the convictions of murder ought

not to stand, there should be a new trial. His sub-

mission was based on the strength of the Crown case,

particularly upon the various statements made by the

triul which do suggest that the appellants each had

a Clear recollection of the events leading up to the Killing and a clear awareness at that time of what they were doing. From this evidence it was well open to a jury to conclude that the Crown had proved beyond reasonable doubt that they intended to kill or inflict grievous bodily harm upon the deceased,

Having given the matter due consideration, we have reached the conclusion that the submission made on behalf of tne Crown should be accepted and that there should be a new trial.

Our conclusion in this regard makes it unnecessary to deal with the remaining grounds of appeal. However, we are of the clear ovinion that his Honour did not err when he failed to leave tne issue of provocation to the gury. There is no special statutory provision in force in the Northern Territory so that the common law applies. It is stated conveniently 1n Parker v. The Queen (1964) A.C. 1369 at p.1392. Before the 1ssue is left to a jury the case must contain some reasonable evidence of provocation,

that is some evidence fit for the consideration of the

jury. In our opinion this was not such a case. We are of cpinion that his Honour's statement

that what the appellant Wurrawilya said to the police

-concerning her intoxicated condition not being any

evidence of that condition was erroneous. It runs counter,in our respectful opinion,to what was said by Gibbs J. (as he was) in Lopes v. Taylor (1970) 44 A.L.J.R. 412 at pp.421-422, and to the decision of the Court of Criminal Appeal in England in Reg. v. Duncan (1981) 73 Cr. App. R. 359. We refer also to Herbert v. Benson (1942) 44 S.R. (N.S.W.) 382 per Jordan C.J. at p.383. We would prefer to leave open the question of whether, if this had been the only misdirection, the trial would have miscarried,

allowed, the convictions for murder set aside and a new

trial ordered to take place at such time and place as the

I certify that this and the 34 preceeding pages are a true copy of the reasons for decision of their HOnours Justice Toohey and Justice Sheppard.

NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 34,35 & 36 of 1981

Coram: Toohey, McGregor, Sheppard JJ. Date : 30 July 1982 McGREGOR J REASONS FOR JUDGMENT

These are appeals by NGAIRE HERBERT, PAMELA SAMPSON and

RHODA WURRAWILYA (appellants) against their conviction for murder in the Supreme Court of the Northern lerratcry on 30 October 1981 and sentences of life imprisonment on 10 November 1981.

The Crown case was that on 29 May 1981 the appellants were drinking at the Parap Hotel in Parwin with Jan Draskoveic. They decided to rob him. Each of them struck him about the head several times with an iron bar causing his death within a short time. The Crown also relicd upon the actions of the appellants as having been a joint enterprise which they carried out with a

common purpose. The evidence against the appellants consisted of

an eye witness, admissions made verbally and, in the case of the

appellant, Sampson and Warrawilya, in signed Records of

Interview. The appellants in admissions made verbally and

Records of Interview, claimed they were drunk at the time they struck Jan Draskoveic. The eye witness' account supported this. It us not disputed that all appellants were affected by intoxicating liquor at all relevant times.

Each of the appellants made a statement from the dock in

which they gave account of events at the Hotel on the relevant

night, that, in effect, they were drunk, and though the expression varied, that they hit the deceased with an iron pipe, that they did not mean to hurt him. The appellants Herbert and Sampson said that the appellant Wurrawilya made them do it, 1.e. hit the deceased; but this was denied by the appellant Wurrawllya. The last named appellant also gave a version of events whereby she referred to the deceased having called her a "black bitch" and a "slut" and swearing at her whereafter she got

The appellants, without objection, were given leave to rely on grounds of appeal other than or in addition to those originally taken. These have been set out in what amount to

amended Notices of Appeal and are before us. Grounds as filed

were not all supported in argument. For ease of reference I set

Against the Sentence of the Honourable Mr. Justice Gallop made in the Supreme Court of the Northern Territory of

That the learned Trial Judge erred in his summing up to the jury in that he did not adequately put to the jury the defence of the appellant and that although he did give further directions to the jury on the question of intoxication of alcohol, after the conclusion of his summing up, such direction did not adequately put before the jury the appellant's defence.

That the Learned Trial Judge erred in telling the jury in the course of his summing up that when a person does an involuntary act they usually do not have any recollection of the act and that the Learned Trial Judge erred in the directions he gave to the jury on the subject of involuntary act.

That the Learned Trial Judge erred in his summing up and he failed to direct the jury adequately as to the necessity for a finding that at the time of the commission of the alileged offence of murder, for the jury to find the appellant guilty of such offence they would have had to have found beyond reasonable doubt that she had the necessary special intent.

That the Learned Trial Judge erred in his further directions to the jury

upon their return at 8.25 p.m. insofar as the directions given by Learned Trial Judge to the jury in relation to the necessary intent were misleading and/or incorrect and, in particular

The Learned Trial Judge stating at Page 1368 of the Transcript "A person may be so intoxicated that his will is warped - his disposition altered - his self control weakened. So that whilst intoxicated he does an act voluntarily and intentionally, but it 1s an act that in a sober state he would never do. When a person is intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions, has not destroyed his will, or precluded his ability to form the intention",

but failed to put the proposition or leave to the jury the question that intoxication "to that extent" may proclude his ability to form the intention. The Learned Trial Judge erred in directing the jury that intoxication to that extent as not destroying his will to preclude his ability to form the intention.

The Learned Trial Judge directed the jury immediately thereafter "Indeed intoxication to that extent may well explain or not how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. I guess we have all done things when we have been intoxicated, or affected by liquor to some greater or lesser degree which we might think about the next day and think, "Well, I shouldn't have done that." But nevertheless we did it and we had the intention of doing it at the time when we did 1t.

Intoxication might render an accused person less aware of what he is

significance or the consequences of what he 1s doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence - it avails him nothing."

In the course of that direction the Learned Trial Judge never put to the jury all the proper alternatives and, in particular, never put to the jury that intoxication may mean that the appellant was incapable of forming the requisite intent. The Learned Trial Judge erred in inferentially telling the jury in both passages that a person intoxicated would have the necessary intent and failed to put the jury or leave to them the question of whether or not a particular person did have the necessary intent,

The Learned Trial Judge directed the jury "So I just repeat to you intoxication does not provide an accused person with an excuse in Law." It 1s no excuse in law what the person did. It is simply something that you take into account an drawing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the 1ron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that the accused seemed to function very well, whether intoxicated or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events." The Learned Trial Judge erred in telling the jury that intoxication is "no excuse in law what the person did" and he erred in giving the jury these directions and in failing to put the defence case as part of these directions.

(lv) The Learned Trial Judge directed jury "Now, unless I can help further that is the way you alcohol in the scale and you

drunkenness in the scale. I suppose the first guestion for you is if you think they were - or in relation to each accused, do you think that they were so far affected that they were

you think they were so drunk and not know what they were doing?

sorts of things with the necessary intention, even though they might be

The Learned Trial Judge erred again in failing to put the converse of his propositions, namely that some

people when "pretty drunk" do sorts of things" without

(v) The Learned Trial Judge after 8.25 p-m. upon the jury's return,

your personal experience. That your acknowledge of yourselves

the knowledge of people generally. It would not avail an accused person

anything to say, "My judgment warped" - "alcohol warped judgment" ~ using the words of

document you have just given me - that 1s not what the criminal law is

committed because a person succumbs to a temptation because of alcohol that they would not otherwise

succumb to. It 1s not a question of whether the judgment was merely warped - as I put to you earlier -

1t is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt

circumstances was just never formed." The Learned Trial Judge

misdirected the jury in these two directions in failing to tell the jury that the question for them is whether or not at the time the blow or blows were struck the intention to kill or cause grievous bodily harm was proved beyond reasonable doubt to be in existence in the mind of the accused.

The Learned Trial Judge directed the jury "Do you remember the example I put to you about the man beating another man over the head with a piece of stick and saying, "Hand it over". Would it really make any difference to your conclusion if you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm in this case to kill or to anflict grievous bodily harm.

You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoviec on the head what other intention could they have had but to kill or inflict grievous bodily harm?"

The Learned Trial Judge erred in this direction in that he, in effect, took away from the jury the question of whether or not the relevant intent was present, by telling them (inter alia) "What other intention could they have had

Again the learned Trial Judge did not put the defence case, but reiterated, in effect, what was the prosecution case.

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(vii) The Learned Trial Judge directed the jury immediately following the passage in (vi) above, and said "Would alcohol induce some other

sort of intention? Or would alcohol merely release them from the

restraints that they might otherwise, impose upon themselves or might otherwise recognise as

constraints as to whether they ought to wield the iron bar or not? I do

It is not a question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased 1s enough. That does not exclude the intent. The fact that a person's judgment is

affected - warped, in the terms of the document set out to me is not enough. That does not remove the intent."

He erred in failing to direct the Jury that it was not a question of whether alcohol would induce some other sort of intention but the question for them was whether alcohol ingestion resulted in the failure to form the necessary intent at the relevant time. He erred in failing to tell the jury that if the jury found that a person's judgment was effected or warped that may mean that the necessary intent did not

exist. The Learned Trial Judge erred in directing them that such a finding "does not remove' the intent".

directed the jury"I do not want to read to you everything that I have said to you before, but as I say if a person can say, "I was drunk and therefore I didn't have the intent", well you might as well give up prosecuting people in these courts,

because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination ian case after case in the criminal law area."

The Learned Trial Judge erred in that the whole tenor of his directions to the jury after they had initially retired to consider their verdicts was a direction to convict and not a direction which

included any adequate or proper reference to the defence case.

The directions as a whole, both prior to the jury initially retiring and after, dealt with the defence case in a slighting and incomplete manner and

failed to put into proper perspective the submissiions of defence counsel.

That the Learned Trial Judge erred in his direction at Page 1343 in his direction as to manslaughter.

That the Learned Trial Judge's actions in bringing the jury back at 6.14 p.m. and what he said to them on that occasion, coupled with his remarks to the jury at 8.25 p.m. when the Jury returned and, in particular, his final directions to the jury "I do not want to read to you everything that I have said to you before, but as I say if a person can say, "I was drunk and therefore I didn't have the intent", well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case an the criminal area", amount to undue pressure on the jury as a whole and particularly when the jury were deadlocked or had reached a stalement on the question of alchol and intent.

The senterce imposed was in all the circumstances manifestly excessive.

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The grounds of appeal relied upon in respect of this appeal are those which have been set out already in relation to

the appellant Herbert, Nos. 4, 5, 6, 8, 9, 10, 11, 12 and 13.

3. That the learned Trial Judge erred in his summing up to the jury in that he did not adequately put to the jury the defence of the appellant and that aithough he did give a further direction to the jury on the question of aintoxication by alcohol, after the conclusion of his summing up, such direction did not adequately put before the jury the appellant's defence.

That the Learned Trial Judge erred in telling the jury in the course of his summing up that when a person does an involuntary act, they usually do not have any recollection of the act and that the Learned Trial Judge erred un the directions he gave to the jury on the subject of involunt-ry act.

That the Learned Trial Judge erred in his summing up and he failed to direct the jury adequately as to the necessity for a finding that at the time of the commission of the alleged offence of murder, for the jury to find the appellant guilty of such offence,

they would have had to have found beyond reasonable doubt that she had the necessary special intent.

That the Learned Trial Judge erred in his directions to the jury in answer to the

question asked by the jury at page 1374 of the transcript on the question of alcohol and the intention to cause grievous bodily harm.

the jury on the question of voluntariness and intent.

8. The summing up of the Learned Trial Judge was unbalanced and unfair to the appellant.

9. That the Learned Trial Judge erred in that he failed to instruct the jury on the elements of the defence of provocation and the law relating thereto.

Judge was in all the circumstances manifestly excessive."

In addition, on behalf of this appellant, it is argued

that the learned trial Judge was in error in saying to the jury -

"Now, Just because Rhoda said to the police that she was paralytic drunk, that does not

prove as a fact that she was paralytic drunk. It only proves as a fact, that she said to the police that she was paralytic drunk. You will have to make up your mind if she was drunk or not from other evidence in the case. It may

police does not prove as a fact." When considering this last question, 1t may be borne in mind that the other two appellants made a similar claim as to their condition.

Most of these grounds are related to what are said to be

deficiencies 1n the summing up of the learned trial Judge related

to his fa1rlure adequately or clearly to direct the jury as to the

onus on the Crown to prove the appellants' actions were voluntary (in the sense that they performed, willed acts) with an intent to kill or inflict bodily harm; and, in particular, on the failure of the learned trial Judge, when asked to redirect the jury and in answering questions asked by the jury as to intoxication and that intent, to remind the jury in appropriate terms as to the onus on the Crown when there was evidence as to the appellants and each of them being affected by intoxicating liquor and the possible relationship between a state of intoxication and intent.

Accordingly, it is convenient to refer to the summing up and, in particular, to that portion of it dealing with onus of proof, voluntariness and intent. I note that included in the main summing up (i.e. as the jury were charged before being sent out or later recalled for further directions or to hear evidence they wanted read or to be given further instruction they sought) this appears -

have already heard a good deal about it, but as I say, the law requires me to put these

things to you. It 1s something that you probably know very well. It is the question of the burden of proof and the standard of proof.

accused. The crown must prove it. The standard of proof is proof beyond reasonable doubt. The prosecution will succeed in the

task of proving its case beyond reasonable doubt, 1f£f and only if, having considered all the evidence, each one of you is satisfied beyond reasonable doubt that the accused or one or more of them is guilty of the crime of murder or the crime of manslaughter.

It 1s not the law that any accused person has to satisfy you that she is innocent. In this

case, the onus is on the crown and it remains with the crown throughout."

+++-Beyond reasonable doubt means what it says, and the onus is on the Crown and it

extends to every element in the Crown case. I will have something more to say to you in a moment about what the elements are...."

It may be remarked that the state of mind as to vcoluntariness

could be regarded as an ""element". See Bratty v. Attorney

General for Northern Ireland (1963) A.C. 386 at p.407.

His Honour directed the jury on what is a "willed act"

"The accused 1s not guilty of a crime if the act was not done in the exercise of his will

to act. You must try and grasp the concept of what a voluntary act is. It is an act done in

it 1s a willed act, it is a voluntary act." His Honour elaborated on the concept of "willed act". As a Matter of definition, in my view, the direction as to the meaning of what was a voluntary act was adequate. And he discussed it as part of or immediately following his treatment of the definition of murder in such a fashion that the jury, 1n my view, would have understood that the proof of a voluntary or willed act was like one of the elements of the crime and to be proved beyond reasonable doubt by the Crown. The willed act(s) was the striking of the deceased with a piece of iron piping. His

Honour's description or definition of it was in accord with what

was sald by Barwick C.J. in Ryan v. The Queen (1969-70) 121

C.L.R. 205 (Ryan) at pp.214-217. Passages therefrom were quoted by Gibbs J. (as he then was) in Rv. O'Connor 29 ALR 449

(O'Connor) at p. 468. That Ryan was not a case where the effect a0 Sonnor) Ryan

ef intoxicating liquor was under consideration does not seem to me to matter. When his Honour dealt with the question of drunkenness or intoxication, he said -

in deciding whether the Crown has proved beyond reasonable doubt the voluntariness

His Honour enumerated, correctly in my view, the "elements" of

the crime of murder. Later when he came to that area of his

charge to the jury on drunkenness, he said, inter alia -

inference whether his mind went with the act and whether the necessary intention to kill or inflict grievous bodily harm is proven."

In my opinion, as it was given, the main summing up was adequate to convey to the jury the respective position of the Crown in relation to both the burden and the standard of proof in

respect of the voluntary act(s), intent and the elements of the

Before this Court, the arguments for the appellants have referred again to and repeated criticisms of the learned trial Judge's main summing up and directions given in respect thereto

including when the jury asked guestions. I shall refer to these

criticisms and redirections in more detail. Upon the jury retiring Counsel for the appellant Herbert asked his Honour to

eee eas to what my clients' defence WAS se e.ee that although she did an act by

reason of the ingestion of alcohol, she did not have the necessary requisite and special

intent necessary to constitute the crime of murder."

In this passage Counsel states a "defence" in positive form omitting in the formulation reference to onus; and this mode of expression was also chosen in ground 8(b)(vi1) above.

In this part of Counsel's submissicn, he also argued

that when his Honour had directed the jury as to the

circumstances in which they might find an accused person guilty of manslaughter that he had directed them in terms of a reversal of the onus of proof; that it was not a question, Counsel submitted, as the learned Judge had directed (sic) "if you are satisfied there was no intent to kill or cause grievous bodily

harm then you consider manslaughter", but rather 1f they were not

satisfied beyond reasonable doubt that the Crown had proved there was an intent to kill or cause grievous bodily harm, then they should consider manslaughter.

In my view the directions given by the learned trial Judge in the area of the summing up referred to were not, on that point, expressed appropriately if they were repeating a direction to onus; but the learned trial Judge had already dealt adequately with the onus and standard of proof. In his remarks, of which complaint was offered, he was not purperting to deal at all with the onus of proof. They were directed as to a possible transfer of attention or consideration of murder to manslaughter and to elements of the offence of manslaughter. His Honour was giving cirection as to what might be different compartments of the jury's task, i.e. to consider first the question of murder

and, secondly, that of manslaughter, to whose elements he had

referred. I am of the opinion that the jury would not have been

caused to misunderstand or to lose sight of the correct

application of the oft stated (by then repeated or referred to

some seven times) onus of proof formula. However, his Honour did ask Counsel for the appellants Sampson and Wurrawilya if they wanted him to put anything further to the jury. Counsel for Sampson answered in the negative. Counsel for Wurrawilya drew

his Honour's attention to what he suggested was a factual error

which is not in issue in this appeal, and he sought the same direction as to the consumption of alcohol as that requested for appellant Herbert. He also asked that evidence by a witness McKay bearing on intoxication be drawn to the attention of the

jury. He reguested that the concluding part of his client's statement from the Dock be read to the jury. I shall refer to

His Honour recalled the jury, put to them the so called "defence"

as requested by the appellant Herbert's Counsel and in terms he

had suggested. He added a direction as to the onus in

unexceptional terms and a direction on manslaughter thus -

"..e..IT am not going to delay you very long, but I have been asked by Mr. Abbott, for the accused, Herbert, to remind you of the defence of his client, Ngaire Herbert. Shortly, it 15 this, that although she did the act alleged against her - I withdraw that. Although she did an act, namely of wielding the pipe and hitting the man on the head, by reason of the ungestion of alcohol, she was too drunk to form the necessary intent to kill or inflact grievous bodily harm, and therefore, so the argument runs, and so her case runs, she is not guilty of murder.

Now, I do not propose to say any more about it except just to remind you that the onus of

proof is on the Crown and the standard is proof beyond reasonable doubt. Mr. Abbott's

argument is that you cannot be satisfied beyond reasonable doubt that she had the necessary intent.

In relation to manslaughter, I told you that you only get to consider that if you are not

satisfied beyond reasonable doubt that any particular accused had the intention to kill or inflict grievous bodily harm. I said to you that when a person kills another by the deliberate commission of an unlawful and dangerous act, without that intention to kill or inflict grievous bodily harm, then if a reasonable man in that situation would have realised that he was exposing the deceased to an appreciable risk of really serious injury, that is manslaughter. So you understand: no intent to kill or anflict grievous bodily

harm, but nevertheless a deliberate commission of an unlawful and dangerous act.

situation would have realised the danger that he was creating, that means a reasonable man in the situation like the accused was in;

that is, a person who had ingested so much alcohol; if you find that 1s what the accused had done."

The direction to the jury on manslaughter may have been in terms which resulted in a more favourable rendition of manslaughter

elements than was warranted (cf. D.P.P. v. Newbury (1977)

A.c. 500). This direction was given in respect of "any

particular accused". He repeated, as requested, the direction as

to intoxication and onus in respect of the appellant Wurrawilya.

He read the section of this appellant's statement as requested. Having given these further directions, he sent the jury

out once more. This was some time before 11.306 a.m. He asked

Counsel if there was "anything else" but no correction or further

The jury requested certain evidence to be read. This was done. I have headed this as a ""re-direction" for convenience; though, in fact, no direction was sought or given.

Later the jury asked a question in a note, repeated in

e.e..@xplain to the jury (some) in explicit terms the guidelines pertaining to alcohol in

It is worth noting that what the jury sought was to "explain" the

guidelines pertaining to alcohol and "in relation to intent". It

might be inferred that the jury needed no further discussion on

voluntariness. Upon invitation given, no Counsel made further

submissions except the Crown Prosecutor. A request he made was refused. The jury were recalled at 4.57 p.m.

"...Mr. Foreman. I will not dilate upon the nature of the intent. I have told you before that the intent has to be an intent to kill, or an intent to inflict grievous bodily harm, and that the onus is on the Crown to prove that fact as being the intent of the accused - -

the same as any other fact in the case ~ 1t 1s an element of the crime of murder.

That fact cannot be proved by any method except by deduction from the known facts or the facts that you find to be established by inference or by conclusion and in drawing the inference, or coming to a conclusion you take account of all the circumstances and if you think of the circumstances in relation to any particular accused is that she was affected by

alcohol, then you put that into the conundrum as to whether she was affected by alcohol to

the point - or as to whether she had the necessary intention.

Now, in doing that, the observations I made to you were these. Drunkenness or intoxication 1s not of itself a defence to any crime. Self induced intoxication or drunkenness is never a defence to a crime. It is merely something that has to be put into the scales in determing whether you are satisfied beyond reasonable doubt about that particular element ef the crime - in this case, the intent. And I said to you before and I repeat, that as experienced people you will know that intoxication varies greatly in degree and it also affects different people in different ways."

The jury's question did not in terms seek further or repetition of directions. I note his Honour referred again to the onus of

proof. He continued, pointing out, in effect, that intoxication

was not itself a defence but might render a person less aware of

"BR person may be so intoxicated that his will is warped - his disposition altered - his self control weakened. So that whilst intoxicated he does an act voluntarily and intentionally, but at is an act that in a sober state he would never do. When a person 1s intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions has not destroyed his will, or precluded his ability to form the intention.

Indeed intoxication to that extent may well explain how an accused person, otherwise of goog character and stable disposition came to commit the offence with which he is charged. I guess we have all done things when we have been intoxicated, or affected by liquor to some greater or lesser degree which we mght think about the next day and think, 'Well, I shouldn't have done that.' But nevertheless

we did 1t and we had the intention of doing it at the time when we did it.

Intoxication might render an accused person less aware of what he is doing - or less aware of the significance or the consequences of what he is doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence

• it avails him nothing. And as I said to you earlier, youmight not even remember the next day - you have all heard of alcoholic amnesia. A person may not even remember the next day what he did - how he got home - who drove the car - that sort of thing, but nevertheless the fact that he does not remember does not

necessarily indicate that he did not intend to do what he did.

So I just repeat to you intoxication does not provide an accused person with an excuse in law. It is ne excuse in law what the person did. It is simply something that you take into account in drawing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the iron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that these accused seemed to function very well, whether intoxicated or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events.

way you put alcohol in the scale and you put drunkenness in the scale. I suppose the first

question for you is if you think they were - or in relation to each accused, do you think that they were so affected that they were incapable of forming an intent? Do you think they were so drunk that they did not know what they were doing? But you see, even in saying that, I think that 1s a too bland a description. As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk."

His question to them in the last paragraph, were it in

1solation and intended to be in the words of direction, would be

open to the criticism that 1t referred to the capability of

forming (cf. Grounds of appeal 8(b)(i) above) rather than the

fact of having formed the requisite intent; but the opening

words of this redirection had specifically repeated the direction

as to intent as it should be considered with the onus of proof; the question asked of him invited this form of discussion which would not, I consider, have derogated from the onus of proof direction. His Honour, having earlier stated and repeated the

onus (though not asked to do so) correctly, was replying to a

question coupling alcohol and intention and not directed to

voluntariness. He may well have taken the view that to add any

further reference to voluntariness would have clouded the discussion on the subject of enquiry by some members of the Jury.

It is understandable that when, after the Jury retired again (at 5.09 p.m.) and Counsel were asked whether anyone wanted him to say anything further to the jury, no defence Counsel sought further direction except the then Counsel for appellant Wurrawilya. This request was refused. The subject of that

request has not been discussed in this appeal. I note that it

His Honour recalled the jury AT 6.14 p.m. i.e. after they had been in retirement for six hours and urged them to try to reach agreement. At 6.20 p.m. they retired again. FIFTH RE-DIRECTION

Later a message was sen. by the jury to which I refer

below. Before the jury were recalled, Counsel were asked if

they wished to say anything. Counsel for appellant Herbert

stated that he did have "small matters". He referred his Honour to what Barwick C.J. said in O'Connor (supra) at p.466 line 46 et seq. and sought a direction in accordance with it. His Honour refused this request. In my view the passage cited did not offer any version of the onus or intent in a case where alcohol may be a factor not already covered by earlier directions. His Honour, I consider, was justified in refusing it.

The Jury were brought back at 8.25 p.m. The message appears thus in the transcript - -

Members cannot reach consensus on the finer technicalities of alcohol warping judgement and therefore affecting the intent to cause or inflict grievous bodily harm."

"I gather from that that you would like some more direction about that, Mr. Foreman?"

The learned trial Judge's instruction then given to the jury on this enquiry included -

That is, your knowledge of yourselves and the knowledge of people generally. It would not

avail an accused person anything to say, 'My judgment was warped' -~ alcohol warped my jJudgment' - using the words of the document

you have just given me - that is not what the criminal law is about.

person succumbs to a temptation because of alcohol that they would not otherwise succumb

to. It as not a question of whether the Judgment was merely warped - as I put to you earlier ~ 1t 1S a matter of whether the mind

was so affected that you cannot be satisfied beyond reasonable doubt that the intention that you would otherwise infer from all the

the man beating another man over the head with a piece of stick and saying, 'Hand it over.' Would it really make any difference to your conclusion if you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm and in this case to kill or to anflict grievous bodily harm.

You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alcohol induce some other sort of intention? Or would alcohol merely release them from the restraints that they might

otherwise impose upon themselves or might otherwise recognise as constraints as to

I do not think I can tell you anything more than that, ladies and gentlemen. It 1s not a question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased is enough. That does not exclude the intent. The fact that a person's judgment is affected - warped, in the terms of the document set out to me 1S

not enough. That does not remove the intent. I do not want to read to you everything that I

have said to you before, but as I say if a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a letha: combination and they are a very

frequent combination in case after case in the criminal area.

I do not think I can help you further - would you please retire, ladies and gentlemen".

His remarks included statements which might be thought to have

been adverse to the appellants. Yet the case against them was

very strong. His Honour's summing up had been most moderate,

anvolving e.g. but little detailed reference to most damaging admissions in interrogations and Records of Interview. His question to the Jury "Anything further gentlemen?" was not made the occasion for any further request for directions by Counsel.

The main submissions to us have been made by senior

counsel for the appellant Sampson who did not hear the addresses

of counsel at the trial or the emphasis by the trial Judge in the

summing up. These arguments have not persuaded me that the trial

Judge's summing up and directions on onus, voluntariness, intent or the circumstances in which manslaughter was available was at

fault in respect of any of the appellants. Counsel's argument

for the appellant Sampson was adopted by Counsel for the

In my view, the words of the Full Court of the Supreme

Court of Victoria in R. v. Kerr (No. 2) (1951) V.L.R. 239 at

"There are many reasons why an appellate tribunal should be slow to interfere with the

result of a trial upon the ground that the Judge's charge is not as full and impartial as might be desired. For one thing, he has seen

the course of the trial, and, in particular, has heard the addresses of counsel, and his

own comments must be read in the light of what has preceded them. Further, he is entitled to comment upon the evidence and offer such observations as he thinks fit, provided that he makes it quite clear to the Jury that they are the judges of the facts and are free to accept or disregard his comments as they

choose. He is not obliged to tell the jury everything which he might have tola them. In

R. v. Pope (1910), 4 Cr. App. R. 123, at p-127, Darling J. said: "What we must consider 1s whether the summing up was so one-sided as to lead to the conviction of the prisoner." In R. v. Hepworth (1910), 4 Cr. App. R.128, the same Judge, referring to the summing-up challenged in the appeal, said: "All passages un it are not moderate", but said the Court was unable to say there was anything in it "which precluded the jury from doing justice"

• see also R. v. Reynolds, (1927) S.A.S.R. 228 at pp.237-8 and R. v. Power, (1940) St.R. Qd. lll, at p.132 where these passages are quoted. In R. v. Johnson (1917), 17 S.R. (N.S.W.) 481, and in R. v. Sorlie (1925), 25 S.R. (N.S.W.) 532, at p.539, are to be found quotations from R. v. Stoddart (1909), 2 Cr. App. R.217, where Lord Alverstone L.C.dJ. quoted from Brett M.R. some pertinent observations upon the practice of submitting a charge to a minute and critical examination, and added: "This Court sits here to administer

Justice and to deal with valid objections to matters which may have led to a miscarriage of Justice.""

In my opinion the learned trial Judge throughout his summing up made it abundantly clear to the Jury that they had to decide matters of fact. They would have been under no misapprehension that they remained the judges in that area, free to accept or disregard his comments as they chose. In fact, he had specifically told them at the outset of his summing up that they did not have to accept any view he might express on a matter

of fact, that they were perfectly free to disregard what he said

I repeat the conclusion already expressed in relation to

complaints made on behalf of this appellant of the summing up and

re-direction. In my opinion, except as mentioned below, they provide no valid criticism. Two other matters in her case, however, were argued and

I proceed to consider them. The first is in relation to the

passage as to the use to be made of self serving statements to

"The crown of course, does not vouch for the truth of everything that an accused person

said to the police. How could the crown do so, but the crown can rely upon the things that they have said as admissions. You see,

the answer to one question, the accused, Rhoda Wurrawilya said to the police that she was

paralytic drunk and he went on to say that the crown has to exclude that.

Now, just because Rhoda said to the police that she was paralytic drunk, that does not

prove as a fact that she was paralytic drunk. It only proves as a fact, that she said to the

police that she was paralytic drunk. You will have to make up your mind if she was drunk or not from other evidence in the case. It may be that you will accept that she was paralytic

drunk, but that is for you to make a judgment about it. The mere fact that she told the police does not prove as a fact."

I note that no complaint was made nor re-direction sought at the trial on this subject. Statements were made to Sgt. Brainbridge when he was questioning the appellant Wurrawilya

on 4 June 1981. Amongst other things, she said to him in answer

"Q. Could you have hit him more times, but cannot remember doing that?

by myself. And later - "OQ. Are you sorry for what you did to that old Jan? A. Yes. Q. Why are your sorry? A. Because when I was drunk I did not know

what I was doing." Authorities which deal with this subject are referred to

in Lopes v. Taylor (1970) 44 A.L.J.R. 412 (Lopes) in the Judgment

of Gibbs J. (as he then was) at p.421-422 where he said -

"There has been, 1n Australia, a conflict of Opinion on the question whether, when one party tenders evidence of admissions made by the other, the latter may, for the purpose of discharging an onus of proof that lies upon him, rely on self-serving statements forming part of the admissions. On one hand, there is

the opinion expressed in Day v. Dyson (1965) V-R. 165, at p.169, followed in Revesz v.

Orchard, (1969) S.A.S.R. 336, that self-serving statements made in the course of an admission, although admissible as

explanatory or as qualifying the admission, are not for other purposes evidence of the truth of what was stated. On the other hand, there 1s the view that where one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated, although the Court is not bound to accept all parts of the statement as true but

tHE pete tte mae TH PA ee SIE Me ek pha Ldn Rr ae tinh ahh ah aie Rae MI ew yn" datiomet be Capa tehteD SY yrs ee 1 at inewte eyet whats hf

of the statement: see Higgins v. Dorries; Higgins v. Donnelly, (1965) Qd. R.389, at pp. 395, 396; State Government Insurance Office

(Queensland) v. Saarinen, (1967) Q.W.N. 23; Horne v. Tweed River Transport Pty. Ltd.

(1967), 61 Q.d0.P.R. 114, at pp.119,120; Eyre v. Nationwide News Pty. Ltd. (1968), 13 F.L.R. 180, at p.185; and Sharp Vv. Hotel

International Ltd., (1969) V.R. 103, at pp.109, 110. I have myself, when sitting elsewhere, accepted this latter view as

correct and although as at present advised I see no reason to alter my opinion it does not

seem to me to be necessary in the present case to pronounce finally on this question."

His Honour's references to "elsewhere" may have been to

his Reasons for Judgment in the case of Eyre v. Nationwide News

Pty. Ltd. In Lopes, Barwick C.J. said that he found no need to

discuss the question whether the statements are to be regarded as

merely self serving and of no evidentiary value. In the same

case, as I read the judgment of Menzies J. at p.417, he did accept that such statements had evidentiary value but in the circumstances found it ampossible to conclude that the defendant's account of what happened should be accepted in full

"To accept an admission in a statement does not commit a Court to accept everything in the statement."

So far as Windeyer J. dealt with the question at p.418, he seems to me to be indicating that there was such a degree of difference between the weight attached to an admission on the one haid and a self serving statement on the other hand, that the Tribunal from which the appeal was ultimately brought (via the

Full Court of Western Australia) was entitled to conclude that

the self serving statements were not sufficient to raise a finding of contributory negligence of the other party concerning whose actions the statements were made and where the onus was on the maker of the statements. So he did not reject self serving statements as being of no evidentiary value. The judgment of Walsh J. at p.419 accepts that the self serving statements would be evidence for him but, again, that their weight was less than

"But I am not satisfied that for the purpose of deciding the issue of contributory negligence

the appellant's statements ought to be accepted fully." He regarded the failure of the appellant to give evidence as

reducing the weight which otherwise might have been accorded to

With respect, I add the following authorities as bearing

upon the discussion as to the probative value of self serving

statements; Jack v. Smail (1904-1905) 2 C.L.R. 684 at p.695;

Herbert v. Benson 44 S.R. (N.S.W.) 382. In the last case all

three members of the Full Court of New South Wales appear to recognise that a jury may accept part of evidence tendered in a deposition and reject other parts; or attribute to them different weight. Jordan C.J. who dissented, appears to accept the right of a jury to receive and act on admissions and disregard exculpatory matter; but he did not exclude the availability of the latter from having some evidentiary value.

There may have been in the past some variation in judicial approach in England. In the latest case to which

attention has been drawn, viz. Findlay Duncan 73 Cr.App.R. 367, a

decision of a Court consisting of the Lord Chief Justice,

Boreham and Drake JJ., this passage appears at p.364 -

"We turn to examine the authorities. In McGregor (1967) 51 Cr.App.R. 338; (1968)

2 Q.B. 371 Lord Parker C.J., at p.341 and p.377, 378 respectively said this: "As we understand it, Mr. Dovener says and says rightly that, if the prosecution are minded to put in an admission or a confession, they must put in the whole and not merely part of it." He later cited with approval a passage from the then current edition of Archbold (36th ed.), para.1128: "....the better opinion seems to be that as in the case of all other evidence the whole should be left to the jury to say whether the facts asserted by the prisoner in his favour be true." Lord Parker went on to consider and reject out of hand a submission by counsel for the appellant that the jury should have been directed to give equal weight to both parts of the appellant's statement, those containing admissions and those containing excuses or explanations.

This case is clear authority for the propositiion that in the case of a "mixed" statement both parts are evidence of the facts they state, though they are obviously not to be regarded as having equal weight."

"Where a "mixed" statement 1s under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, 1s for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statements are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are

likely to be true (otherwise why say them?), whereas the excuses do not have the same

weight. Nor 1s there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."

Finally, I would repeat the reference to Allied Interstate

(Q'1ld.) Pty. Limited v. Barnes (1968) 118 C.L.R. 580 per Barwick

C.J. at p.584 and 585. For a general discussion of the subject

see Cross on Evidence 2nd Australian edition at p.504 et seq.

Phapson on Evidence l2th ed. starting at p.297 para. 683.

In my opinion the weight of authority is in favour of

the submission made on behalf of the appellant. With respect,

the direction of the learned trial Judge in this regard, unassisted as he was by any reference to authority, was incorrect. However, in the circumstances here, the jury were already considering the claim by the appellant in her statement from the Dock which was to the same effect. And, beyond doubt, as is clear from the summing up, the question of the degree of intoxication of each appellant, was in the forefront of the issues submitted to the jury. Further, though the jury might have accepted clearly that the statement, as admitted, was only the evidence that she said she was drunk rather than of the fact, they could well have accepted such a statement made before she was heard to the same effect in Court as showing a certain consistency in her claims and thus in the nature of

I do not consider the error was such as to vitiate the

VERE OMA ee ws ymeenee AUT ML ER 9D RET WT CAMPER rary T TIAL TO SDR Ee 9 BT Ot ISEB IASS CH 0S NEA EAL NG Mp RA sy DA Rakes?

For the appellant Wurrawilya, it is argued that the learned trial Judge should have submitted to the jury an issue of provocation; that if otherwise they were disposed to consider

she may have been guilty of murder, (cf. Johnson v. The Queen

(1976) 136 C.L.R. 619 at 643) they should by reason of certain

insulting words find her guilty of manslaughter and not murder.

There is no specific section in The Criminal Law Consolidation

Act and Ordinance on this topic. So one must turn to the Common

Law to see what is the ambit of the defence. I note that in Da Costa v. The Queen (1968) 118 C.L.R. 186 at pp.202, 213 et seq.

members of the High Court seemed to refer to Holmes v. Director

of Public Prosecution (1946) A.C. 588 as an authority to which

resort may be made for the commen law version of provocation. Probably at common law, words "in circumstances of a most extreme and exceptional character" could amount to relevant provocation:

see ibid at pp.598-602. And see generally the article in 31

What has been quoted as a common law (1.e. before the

Homicide Act 1957 s.3) descraption of provocation is that found

in Rv. Duffy (1949) 1 All E.R. 932 per Goddard C.J. quoting

"Provocation is some act, or series of acts, done by the dead man to the accused which

would cause in any reasonable person, and actually causes in the accused, a sudden and

temporary loss of self-control, rendering the accused so subject to passion as to make him

The appellant's Counsel pointed to the words in her statement

We was drinking, and he said to me, "Black bitch", that's why I got wild. I got the pipe and hit him twice.

Old Jan he got drunk and angry I was full drunk. He called me a black bitch and a slut.

He swore at me. Ngaire and Pamela put the pipe in my hand and said to me "Hit him, hit him". I hit him on the back first and I hit

him on the head once....I ask for money, I never meant to hurt him bad...."

The appellant Wurrawilya's statement as to insulting words was corroborated by the witness Doreen Wurrawilya. His Honour said

to Counsel before addresses that he did not think provocation was

open, that if it was put he would tell the jury to take no

For the purpose of this discussion I accept that at common law "mere words" can be sufficient to entitle an accused person to an appropriate direction. (c£. R. v. Tsigos (1964-65) N.S.W.R. 1607 per Walsh J. (as he then was) at p.1610. Nor is it necessary that an accused person's expression which 1s to be the basis for a defence of provocation should actually assert or spell out a loss of self control, cf. Lee Chun Chuen v. The Queen

(1963) A.C. 220 at p.232; R. v. Tikos (No. 1) (1963) V.R. 285 at

p.299. Bearing these matters in mind, in my opinion the words used may have caused the appellant to "get wild", but then were not sufficient to cause any reasonable person nor is there evidence, even in the statement from the "Vock by this appellant, that she experienced a sudden or any loss of self control, nor

that she was subject to passion to the degree and as described in

the definition. There was no error by the learned trial Judge in failing to direct the jury upon this issue, cf. R. v. Tikes (supra) at p.299 per Sholl J.; per Monahan J. at p.304. One aspect of the Notice of Appeal, though dealing with the summing up, might be considered further, e.g. - "9, The Learned Trial Judge erred in that the whole tenor of his directions to the jury

their verdicts was a direction to convict and not a direction which included any adequate or

proper reference to the defence case." The complaint, as 1t was argued, 1s concerned with what

were said to be comments too strongly adverse to the appellants

made by the learned trial judge in his summing up. But a trial

judge is entitled to express his own view of the facts. In R. v.

Petrie (1946) 63 W.N. (N.S.W.) 258 Jordan C.J. said at p.260 -

teecva Judge is clearly entitled to....indicate his view of the facts so long as he makes it clear that the decision is for them."

and in R. v. Kerr (supra) at p.247, the Court cited authority supporting that a trial judge is "clearly entitled to express his

opinion on the facts.....provided he leaves the issues of fact to

the jury to determine." The comments of the trial judge may not,

of course, be stronger than the facts warrant - Reg. v. Bolic and

Judd (1969) Qd.R. 295 at p.304. In R. v. Umanski (1961) V.R. 242 at p.243, the Full Court of Victoria said -

"A perusal of the charge has satisfied us that the learned chairman did comment strongly on the evidence and did so in a manner which would have left little doubt in the minds of the jury as to his own personal views of the evidence. But is this in itself a sufficient ground for our setting aside the verdict?

The right of the trial judge to comment and indeed to comment strongly on the evidence and otherwise offer such observations as he thinks fit is well established by authority provided that - and this is vital - he makes it quite clear to the jury that it is they who are the judges of the facts and that they are free to accept or disregard his comments as they choose: see R. v. Kerr (No. 2) (1951) V.L.R. 239, at pp.247-8."

See also R. v. Tikos (supra) at p.304 per Monahan J.

And in the unreported High Court decision Tsigos v. The Queen

(earlier I have referred to the report of proceedings before the

Court of Criminal Appeal of New South Wales ) it is worth noting that the learned trial judge said to the jury during his summing up -

",..-I think I should tell you this, gentlemen, on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on

the evidence I can see no escape of the verdict of guilty of murder or manslaughter."

The Chief Justice, with whom the majority agreed (Kitto J.

dissenting) said - and referring to the remarks of the trial

"He was entitled to express to them his own view of the facts, reminding them that none the less they were the sole judges of them and at liberty to discard his views. This he did tell them. He was entitled to remind them of their oath to return a verdict according to the evidence.

In my opinion, in the circumstances of this case, in cxpressing himself as he did he was doing no more than he was entitled to do, however direct and forceful the language in

which he conveyed his observation, and however unnecessary, as I think it was, in this case

to speak as he did. I do not think the summing up as a whole was calculated to or would convey to the jury that in point of law they must convict the applicant either of

The criticisms of the summing up have not persuaded me that it was deficient except as to the direction regarding self serving statements which, as I have said , though incorrect, was not such as to vitiate the trial.

The comments of the trial judge, so far as "adverse" to

the cases of the appellants and each of them, were, on the

Each of the appellants being an aboriginal, by reason of

s.6(1C) of the Criminal Law Consolidation Act and Ordinance a

life sentence was not mandatory. It was open to the Judge to

'impose such penalty as, having regard to all the circumstances

The arguments offered on behalf of appellants that, in all the circumstances, the sentences imposed should be reduced,

merit consideration, However, as I am aware of the course

proposed by the majcrity, it is inappropriate to say anything

| certify that this and the 7, ex (3e) preceding pages are a true copyof the