Kozul v The Queen

As was correctly pointed out in the Court of Criminal Appeal, the critical issue which was contested at the trial was whether the revolver had been discharged deliberately or whether it had gone off accidentally in the course of the struggle. The submission made on behalf of the applicant is that the learned trial judge misdirected the jury in relation to this critical issue. In the course of a very full and careful summing up the learned trial judge explained to the jury the use they might make of the exhibits. When he came to deal with the revolver he said: "This pistol, you may look at it in the jury room, you may feel it, test it, examine it, indeed you should." He went on to tell them that the revolver might be "a very, very significant piece of evidence". He explained to them the action of the pistol and the evidence of the expert in relation to it. He referred to the evidence that the revolver would not be accidentally discharged by a blow, and went on:

It is for you to say, and if you think I am expressing any opinion, you are bound to reject it unless you yourselves agree with it. When you look at this pistol, in the jury room uncocked, as it is now you may find it very difficult to see how a blow to that, if you have got it in your hand, without your finger on the trigger, how a blow to your hand, hit it as hard as you like could make that explode.

Next situation that you may care to look at quite carefully is the double action, while the hammer is right in where it is now and the finger is on the trigger. It takes twelve pounds to pull it back, and the trigger you will see moves a long way back relatively, before the hammer falls. You have heard the expert opinion, you look at this Exhibit, you test it for yourselves. You use your commonsense, in determining whether or not, while it is uncocked some blow to the hand can cause the finger to move that distance back, and the gun to go off.

You will see that if it is cocked back there it is a matter for you, for yourselves in the jury room, the expert has told you nothing about it, apparently did not do any tests. But you may find in the jury room for yourself that when it is cocked, if you try it for yourselves, that a blow on your hand may cause this to go off.

Now I am not offering you evidence, and whether I subconsciously pulled the trigger when I struck my hand or not, I cannot tell you, it will be in the jury room with you and that is a legitimate exercise in reasoning for you to use to determine some of the questions of fact and the very important ones.

You will recall that the accused has said to you "I didn't cock that gun. It went off accidentally."

The Crown says "He put it out, on our version, and putting it out he pulled the trigger, there was no blow to this gun by Rajcinoski."

It may be of some assistance to you to have a look at these various positions with this pistol. For instance, if you came to the conclusion that, "that is just not right, a blow to the hand will not, to the hand holding this gun will not discharge while it is uncocked"; that is; "I do not accept that, that does not happen, that cannot happen and it did not happen"; - There is an alternative, that you might say to yourself; "When it can happen, when it is cocked." But of course here that may not be of great assistance because the accused swears to you that he did not cock it. And of course, if he did cock it, you might think "Well there was more time than has been spoken about in the defence case when he drew this pistol, not knowing whether I've got my finger on the trigger or not, cocked it."

Is there any need to cock it, if all you intend to do is just show him the gun, and that will persuade him not to come on.

In the course of giving this direction, the learned trial judge demonstrated the effect of a blow by one hand to the other which was holding the revolver. It would appear that he struck the revolver twice, once when it was cocked and once when it was not, and that the former but not the latter blow caused it to discharge.

During an adjournment which occurred in the course of the summing up, counsel for the applicant submitted that it was wrong to invite the jury to conduct their own demonstration, and that the jury should be discharged, or alternatively that the relevant part of the summing up should be withdrawn and the jury should be directed that the remarks of the learned trial judge to which objection was taken should be disregarded. The learned trial judge refused this application. Later, in the continuation of the summing up, the learned trial judge referred again to the tests conducted by the ballistics expert upon persons who had been assured that the weapon was unloaded and that nobody could be injured, and said to the jury:

You may in your judgment, perhaps feel that that is not of any great weight in this case, for those experiments were conducted with people the subject of the experiment who is comfortable and at ease and has been assured that nothing possibly adverse can happen.

Before us, counsel for the applicant submitted that it was wrong to invite the jury to conduct an experiment the object of which was to discover whether the finger of a person holding a revolver will clench when a blow is struck to his hand. Such an experiment would be objectionable, it was submitted, first because it would be conducted in the absence of the applicant, who would thus be prevented from revealing any weaknesses in the manner in which it was carried out, and secondly because it would proceed on a false basis, since the person holding the revolver in the experiment would not be in a state of emotional stress, and would be expecting the blow.

The revolver was an exhibit in the case, and was just as much part of the evidence as the oral testimony of the witnesses. The jury were of course entitled to examine it, and to have regard to it in reaching their verdict. However, the jury trying issues of fact are not restricted merely to looking at material objects (such as a revolver) that have been produced in evidence. They may if necessary touch and handle them, and they may, within limits that are readily understood in practice if difficult to define with precision, engage in a limited amount of simple experimentation with them. For example, if the question was whether a piece of paper found in the possession of the accused had been torn from a letter found at the scene of the crime, the jury might fit the two pieces together. If the question was whether one container held less than another, the jury might pour water from one to the other. If the weight of an object were in question, members of the jury might lift it. And, to come to the present case, it would have been perfectly proper for the members of the jury to pull the trigger of the revolver, both when it was cocked and when it was not, so that they might judge for themselves how much pressure was necessary to cause it to discharge. In experimenting in this way the jury are doing no more than using their own senses to assess the weight and value of the evidence.

In Scott v. Numurkah Corporation [4] , it was said:

The statement that "the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence" is fully supported by authority. Cases which deal with the extent to which a tribunal may derive assistance from a view in reaching its conclusion provide some analogy, but whatever be the position of a view, it is clear that material objects produced in evidence and admitted as exhibits are themselves part of the evidence. The result of an examination of the exhibits does not stand in place of the evidence; it is the result of the perception of the evidence itself. It is clear that the jury can prefer the evidence provided by the material object to that given orally by the witnesses: see Hodge v. Williams [1] and Scott v. Numurkah Corporation. If the question is whether a knife is sharp or a club is heavy, or whether one object resembles another, the jury can prefer their own observation to the evidence of the witnesses. Of course, it may be necessary to warn the jury of the possible dangers that may exist if they act on their own observation. For example, the present condition of the object may not be the same as its condition at the relevant time, or the fact to be observed may be such that an unskilled layman might need to have his observation assisted by expert evidence. 1. (1954) 91 C.L.R. 300, at p. 313. 2. (1947) 47 S.R. (N.S.W.) 489, at pp. 492-493.

In Hodge v. Williams [2] , Davidson J., after saying that the tribunal may "with its own powers of observation and general knowledge" estimate the value of the evidence of witnesses directed to issues concerning articles in evidence as exhibits, and if necessary refuse to accept that evidence, went on:

Nevertheless, it is not permissible for the Judge or jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional evidence, and apply it in the determination of the issue, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel. When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible. 1. (1947) 47 S.R. (N.S.W.), at p. 493.

If, as was considered in the Court of Criminal Appeal, the jury were invited to do no more than test the mechanical properties of the pistol, it is clear, in the light of the foregoing discussion, that the direction of the learned trial judge was perfectly proper. However, the argument for the applicant was that the invitation went further, and that the jury were really invited to conduct an experiment into the question whether a finger would move if a blow was struck to the hand when holding a revolver. One or two sentences in the summing up provide some support for that submission - particularly the invitation to the jury to use their commonsense in "determining whether or not, while it is uncocked some blow to the hand can cause the finger to move that distance back, and the gun to go off."

The case for the applicant was that the revolver had discharged accidentally, after he had been bumped on the hand. There was no explanation in the evidence of the way in which the bump caused the revolver to fire. However, there are a number of possibilities. In the first place, the revolver may have been cocked. Of course the applicant had sworn that the revolver was not cocked, but the learned trial judge, at the request of the applicant's counsel, directed the jury that they were not bound to accept the applicant's evidence, and that they might consider that the revolver may have been cocked. Secondly, if the revolver was not cocked and the applicant's finger was not on the trigger, the mechanism of the revolver may have been so sensitive that a blow might have caused it to discharge. The jury would only have taken that view if they had rejected the evidence of the ballistics expert, but it was open to them to do so, particularly if an examination of the revolver convinced them that the expert was wrong. Thirdly, the revolver may not have been cocked, but the applicant's finger may have been on the trigger, and a blow to the applicant's hand may have caused his finger involuntarily to tighten on the trigger with sufficient force to cause it to fire. Such an involuntary movement of the finger may have been a reflex action in the strict sense (i.e. an involuntary action of a muscle caused by the excitation of a nerve), or it may have been a sudden involuntary response to surprise or fear. There was no evidence that in fact the applicant's finger did move in either of those ways. The jury had to decide whether they were satisfied that the weapon did not discharge for any of these reasons, without any willed act of the applicant. In considering that question it was relevant to determine how sensitive the trigger was to pressure, and proper for the jury to examine the revolver, and to feel for themselves how much pressure was required to discharge it.

In so far as the learned trial judge suggested that the jury should conduct an experiment designed in part to discover the extent to which a blow to the hand might cause a finger to move, whether by reflex action or in spontaneous response to emotion, he fell into error. In the circumstances of this case an experiment conducted by the jury for such a purpose would have gone beyond an examination and evaluation of the evidence provided by the revolver, and would have had the purpose of gathering additional evidence. However, this error was largely, if not entirely, corrected by the direction which the learned trial judge subsequently gave to the jury. He had already, by his questions to the ballistics expert, shown the jury that an experiment of this kind conducted upon a subject who was not affected by fear or other emotion and who knew what was about to take place would provide no useful guide to the reactions of a person under stress who was apprehensive or surprised. He reminded the jury of this in his summing up when he indicated to them that an experiment conducted upon a subject "who is comfortable and at ease and has been assured that nothing possibly adverse can happen" would be "of little assistance at all". In the light of this reminder a reasonable jury may well have understood that the experiment which they were invited to conduct was for the purpose of testing the pistol, but if they did think that its purpose was to ascertain what reactions might be expected of a person who receives a blow when holding a pistol, they had been warned of the unreliability of an experiment for that purpose.

It was submitted on behalf of the applicant that the alleged misdirection was particularly serious, because the substance of the applicant's defence was that there was a subconscious pulling or clenching of his finger, and because the learned trial judge, by his own demonstration and by the experiment which he invited the jury to conduct, in effect took that defence away from the jury. However, as has been shown, the defence was not so limited. It was that for one reason or another the revolver was discharged automatically; one possible explanation was the involuntary movement of the finger. The question was one of credibility. If the jury believed that the applicant did not deliberately press the trigger, or if they entertained a reasonable doubt on that point, they were bound to acquit him. The learned judge explained this very clearly to the jury.

This is one of those cases in which it has been possible to select from a long summing up one or two sentences which taken by themselves are erroneous, and by concentrating attention upon them to exaggerate their importance. It cannot be doubted that in some cases a few erroneous words in a summing up may be capable of leading to a miscarriage of justice. This is not a case of that kind. The summing up, considered as a whole, fairly left it to the jury to consider properly the vital question whether they were satisfied that the revolver was discharged by accident.

The matter does not warrant the grant of special leave to appeal. However, if special leave to appeal is granted the appeal should be dismissed.

The full circumstances of this application for special leave appear from other judgments. It raises the question of the extent to which the trier of fact may, after the close of evidence, inform his mind by means of an exhibit in the form of real evidence: more specifically, what use, in considering its verdict, may a jury be directed to make of a revolver which is an exhibit in the case.

Here the applicant's evidence was that in the course of a struggle he drew an uncocked revolver, intending only to deter his assailant; that while the revolver remained uncocked his hand was struck and that this caused the revolver to fire. The expert evidence was that the revolver would not fire without pressure on the trigger and that if uncocked it would need twelve pounds pressure and considerable movement of the trigger to fire it; if cocked only some four pounds and little movement of the trigger was needed.

The jury must have found that the applicant's finger had in fact been on the trigger. Let it be assumed in the applicant's favour that the jury accepted his evidence, although denied by other witnesses, that he did receive a blow to his hand. A critical question for the jury would then be whether they were satisfied beyond reasonable doubt that they should reject the defence's explanation of the firing of the revolver. The answer to that question would largely lie in whether or not they could be satisfied that such a blow would not cause the applicant's finger involuntarily to exert sufficient pressure on the trigger as to fire the revolver.

If it were clearly demonstrable whether or not a blow, regardless of its force and direction and of the part of the hand struck, would produce such an involuntary movement of the index finger as would cause the revolver to fire, the answer to this question would be relatively simple: one would then expect evidence to this effect to be given, in the light of which the applicant's account of the firing of the revolver could be assessed. But of course that is not the case. If such an involuntary movement can ever be caused by a blow, much will no doubt depend upon the force and direction of the blow and upon physical factors related to the person holding the revolver; perhaps, too, upon his emotional and nervous state at the time. There may well be other variables involved. Each no doubt would defy attempts at precise expert evaluation. Similarly, to reproduce, in any attempted re-enactment of the incident, all these factors as they operated at the time would no doubt be impossible.

It follows that no re-enactment could be expected of itself to provide any ready-made answer to the question posed for the jury. All this the trial judge was at pains to point out to the jury. It was he, by his questioning of a ballistics expert, who brought out, apparently for the first time, the fact that any re-enactment in which the actor did not share the applicant's particular state of mind at the time the shot was fired, being perhaps "afraid and frightened, on the defensive", would lack verisimilitude.

His Honour again drew attention to this in the course of his charge to the jury. He said:

In one particular matter, as to the ballistics expert, you will recall he gave evidence as to experiments conducted in his section of the police force where an office girl or some other member of the public service was given a weapon, assured that it was unloaded and no-one could be injured, assured that everybody was safe, and then quite suddenly the weapon was pulled to see if an accidental discharge could be provoked. He said to you that in those experiments they have never, ever got an accidental discharge. It is for you to weigh that. You may, in your judgment, perhaps feel that that is not of any great weight in this case, for those experiments were conducted with people - the subject of the experiment who is comfortable and at ease and has been assured that nothing possibly adverse can happen. And it is an opinion open to you, an approach open to you that may recommend itself to you. And again I say to you, you will reject what I seem to express about it unless you, yourselves agree with it, that the weight of that opinion from the ballistic expert is of little assistance at all in determining in this case some of the matters that are before you. The jury were thus emphatically warned that re-enactment might not of itself provide an answer to their problem. But this is not to say that the jury should be denied such assistance as they might nevertheless gain from familiarity with the weight and general feel of the revolver. Apart from the evidence of the ballistics expert, which lent no support to the applicant's explanation of how the uncocked revolver came to be discharge, there was nothing else but the characteristics of the revolver itself from which the jury might assess the acceptability of the applicant's evidence. The evidence of other eye-witnesses was that there had been no blow to the applicant's hand.

It was in such circumstances that the judge invited the jury to make use of the revolver in their deliberations in the juryroom. He told them that they might find it a very significant piece of evidence; he said of it: "This pistol, you may look at in the jury room, you may feel it, test it, examine it, indeed you should".

There was a particular feature of the applicant's evidence about the revolver which was troublesome and on which the judge spent considerable time in his charge to the jury. It was whether his evidence of its accidental discharge could be reconciled with his evidence that it was uncocked. The difficulty of course lay in the considerable pressure on the trigger required to discharge it when uncocked. What his Honour said as to this appears in part from the passage quoted in the judgment of Wilson J., which I need not repeat. That passage must be understood in its context. His Honour had for some time been describing to the jury the evidence about the mechanism of the revolver and the cocking of it. He had reminded them that the applicant said he had not cocked it. He had also reminded them of the expert evidence that a blow or impact without direct pressure on the trigger would not accidently discharge the revolver. He has then suggested to them that they might conclude that unless a finger was on the trigger no blow to the hand would cause the revolver to fire. Then followed the passage quoted by Wilson J. That passage was immediately followed by this:

There is an alternative, that you might say to yourself: "When it can happen, when it is cocked". But of course here that may not be of great assistance because the accused swears to you that he did not cock it. And of course, if he did cock it, you might think "Well there was more time than has been spoken about in the defence case when he drew this pistol, not knowing whether I've got my finger on the trigger or cocked it". Is there any need to cock it, if all you intend to do is just show him the gun, and that will persuade him not to come on.

His Honour's charge was interrupted by the luncheon adjournment, advantage of which was taken by counsel for the applicant to address his Honour upon objections to the charge as so far delivered.

Counsel for the applicant sought a discharge of the jury or alternatively redirection, both applications being based upon the judge's handling of the revolver and his encouraging of the jury to do likewise. The redirection sought was that the jury should be told that they were at liberty to do no more than hold the revolver in their hands, they were not entitled to press the trigger or to cock it. Perhaps it was because the objection was carried to those lengths that any particular objection taken to the judge demonstrating the effect of a blow to the hand and suggesting to the jury that on their retirement they should do likewise was rather submerged in the wider objection. At all events the judge rejected the objection and both in the Court of Criminal Appeal and now before this Court the objection was narrowly confined to what was said to be the judge's invitation to the jury to re-enact the whole incident and especially the blow to the hand, thereby creating new evidence in the privacy of the juryroom.

On the resumption his Honour continued with his charge. It was in the course of doing so that he made the observation which I have already reproduced about the inability to recreate the particular conditions operating at the time of the actual firing of the revolver. At the conclusion of his lengthy charge, and in the presence of the jury, he heard submissions from counsel. One such submission made by counsel for the applicant was in these terms:

Your Honour in dealing with the question of an accidental discharge your Honour indicated that the accused, and indicated quite properly that the accused was quite definite that the hammer was in the forward position, and so swore, I think he made it very clear to your Honour that he was quite definite about that matter. I would ask your Honour to direct the jury that it is still open for them to reject or accept any evidence of any witness including the accused. This led his Honour to give the following lengthy redirection to the jury: His Honour: It is open to you as Mr Cox has said to accept or reject any part of the evidence of any witness, I thought I had already explained that, you can choose, you must choose which part of what anyone says is true and reliable. I think the accused has said to you that he was quite definite, I showed it to him, and said will you just tell me was it like that, or like that, and he said "like that with the hammer right forward, uncocked and I didn't move it".

Now what flows out of what Mr Cox says is that perhaps that, if when you take the expert's opinion into account, when you hold the pistol with your hand, and you feel the pressure is necessary to move it while it is in the double action position with the hammer right forward, as I put to you earlier, you take all that into account, giving due weight to the evidence as you have heard it here from the expert, looking at that Exhibit feeling it, weighing it, using commonsense upon it, you may conclude "Well that supports the expert's testimony, that is not liable to accidental discharge".

When it is cocked, feeling it the pressure of four pounds, and so assessing it in commonsense in the jury room, weighing it feeling it for yourselves, you may come to the conclusion that this can be, in that position the subject of accidental discharge, if you get a knock or a bump. That is for you to determine, but you are not fixed with the version given to you by the accused that it was not cocked at any time. He says that is what happened, but Mr Cox points out you are entitled to say "Well" for instance you could say "I think this thing did go off accidentally, I believe him or what he says is, raises in me a reasonable doubt, now what do I do about that bit of evidence that, it is hard, the experts say this cannot be discharged accidentally and this is a pretty heavy pressure here, this twelve pounds and you have got to move that hammer all that way back, what about that". Well you might say to yourselves, well it could be that it was cocked, as he pulled it out he cocked it, him saying, "I really wasn't thinking, I didn't know that my finger was on the trigger, all I wanted to do was frighten, to protect myself, get it out and point it at him" and if that happened, then of course it might be relatively easy for it to discharge if it was bumped. Well that is open to you and that may raise a doubt, it is for the Crown to disprove that it did go off accidentally, now is that adequate Mr Cox?

For the Crown it was then submitted that the jury should be told that there was here no case of the applicant relying upon self defence but that instead the defence was one of accidental discharge of the revolver.

His Honour, in rejecting this submission, went on to say this to the jury:

There is before you evidence that the gun was drawn and if you like in terms, lifted up and pointed by the accused in the direction of Mr Rajcinoski in self defence, that was he reasonably believed, that is why he did it. Now it may be that you would find established that he did deliberately pull the trigger. It may be that you would have no reasonable doubt about that but it may also be that you would say, even if that did happen, I am not satisfied that the Crown has disproved that he took this pistol out and pointed it at this man in a, then reasonably believing he was subject to violence and it could be that though he says, "I didn't pull the trigger, I don't remember whether my finger was on the trigger," when you look at the gun and test the gun by feeling the pressure on it and other things you may say, well I am satisfied this would have had to be pulled. But in all such circumstances you may still be left; - are you satisfied it was deliberately pulled and it was the will of the man to pull it, that the Crown has not disproved that that was an act he did in reasonable self defence.

It is in the light of these various references to the use which the jury might make of the revolver that this application is to be determined.

It is beyond question that it was entirely proper for the jury to have with them in the juryroom the revolver. It was an exhibit and, as Zelling J. has shown in his judgment in Reg. v. Bradshaw [3] , for the past two hundred years all exhibits have gone with the jury into the juryroom when they retire to consider their verdict. It is another question, and one which does not arise in this case, whether or not there exists a discretion to exclude from removal to the juryroom any exhibits of a highly inflammatory and prejudicial character.

It is, I think, equally clear that the jury could properly be directed by the judge to examine and handle the revolver so as the better to understand the oral evidence, both expert and lay, which they had heard during the trial. As G. D. Nokes observes in his article on "Real Evidence" in the Law Quarterly Review, vol. 65 (1949), 57, at p. 64, " the perception of real evidence is not confined to the sense of sight. weapons may be both seen and touched to ascertain their sharpness or weight". In Taylor on Evidence, 12th ed., vol. 1, par. 554, it is pointed out that "The first degree of evidence, and that which, though open to error and misconception, is obviously most satisfactory to the mind, is afforded by our own senses" - and see generally the discussion of what the learned author of Wigmore on Evidence (1972) describes as autoptic preference: vol. 4, par. 1150 et seq.

Consistently with the foregoing, it was also proper for the trial judge to tell the jury that they might experience for themselves trigger pressures of twelve and four pounds by pressing the trigger while the revolver was both cocked and uncocked.

There remains the judge's direction to the jury that they were free to do as his Honour had done, to hold the revolver with index finger on trigger and then to strike the hand holding the revolver, observing both in its cocked and uncocked state the effect of any movement of the index finger on the trigger. In my view it is wrong to regard this as an invitation to the jury improperly to create new evidence in the juryroom. On the contrary, I regard it as a proper direction to the jury, calculated to assist it in its task of evaluation of the evidence before it.

The jury were confronted with the applicant's evidence of how the revolver came to discharge. They had to decide upon its acceptability. They had the revolver and had heard expert evidence of trigger pressures and of the need for pressure on the trigger if the revolver were to be discharged. There was no expert evidence as to whether the blow on his hand which the applicant had described could cause the revolver to discharge: the judge had explained to the jury why, because of all the imponderables, no such evidence could be given. There could accordingly be no question of the inexpert jury substituting its views for the evidence of an expert. The judge had also warned the jury that no process of reconstruction or re-enactment could reproduce the circumstances of the night in question. It remained for the jury to determine whether, if the applicant's hand had been struck, as he said it had, this could have caused an involuntary discharge of the revolver. At the instance of counsel for the applicant they had been reminded that in determining this they need not accept his evidence that the revolver was uncocked but should take account of the fact that it might in fact have been cocked, requiring much less pressure for it to discharge.

In these circumstances I would regard it as both permissible and prudent to tell the jury not only to handle the revolver and experience the respective trigger pressures but to experience for themselves the sensation of a blow to the hand holding the revolver. Without all this the jury would be largely left to decide the matter by mere speculation. With it they could at last apply their fund of common sense and common experience. The explicit warning that no accurate re-enactment was possible provided the necessary safeguard.

Juries must be free to use in their deliberations the qualities of judgment and of common sense which they bring into the juryroom. They must not substitute what they may suppose to be their own special knowledge in place of the expert evidence given in Court; they must not substitute mere speculation in place of the evidence they have heard and the inferences which may properly be drawn from it. But in the words of the Full Court of the Supreme Court of South Australia in Reg. v. Hamitov [4] , "When exhibits are sent into the jury room it is understood that the jury are at liberty to inspect and experiment with them in any reasonable manner which occurs to them". A striking illustration is furnished by the Brides in the Bath Case, (1915), to which a volume in the Notable British Trials series, "Trial of George Joseph Smith" is devoted. A bath was an exhibit in court and evidence was given of the discovery of a body in it. As recounted verbatim at p. 118, the foreman of the jury at that point requested that someone should be put in the bath "for ocular demonstration". To this his Lordship replied "I can only suggest to you that when you examine these baths (Smith had murdered several women, using different baths) in your private room you should put one of yourselves in". The highly unlikely possibility that this was no more than a jocular suggestion is dispelled by his Lordship's next sentence "Get some one of you to try it who is about the height of 5 feet 9". Marshall Hall, for the defence, then suggested that the prosecution should provide such a person but his Lordship replied "I think it is much better the jury should try for themselves, Mr Hall. There are disadvantages in the French system of reconstructing a crime".

Particular difficulties arise in areas which are essentially matters for expert evidence. Handwriting comparison is an instance of this; the English courts have stressed the difficulties which arise when there is no expert evidence yet the jury has before it examples of handwriting and much turns upon whether each is the product of the one hand. When there is expert evidence the jury must be told not to substitute for that evidence its own inexpert view; when there is none the jury must be warned that they must not attempt a task requiring expert skills - Reg. v. O'Sullivan [5] . The present would be such a case if what was in question was a precise reconstruction of events, culminating in the forming of an opinion about the physiology of the hand and concerning the forces which, when applied to it, might cause reflex movements of the index finger sufficient to discharge the revolver. But this was the very thing against which the judge had warned the jury. It is a very different thing for the jury merely to be able to experience the sensation, sworn to by the applicant, of holding the revolver and of receiving a blow to the hand. If prevented from experiencing it, the jury is the less able to understand and evaluate the evidence of the applicant.

1. [1969] 1 W.L.R. 497; [1969] 2 All E.R. 237; 53 Cr. App. R. 274.

I have reservations concerning the extent to which, in this area, it is helpful to draw analogies from decisions which are concerned with the rather different question of the use to which views of the locus in quo may be put by a judge or jury. However, although Hodge v. Williams [6] was such a decision, I would with respect agree with the observations of Glass J.A. in the Court of Criminal Appeal regarding it. Speaking of the judge's direction to the jury in the present case his Honour said;

The experiment which he proposed they might carry out in the jury room fell on the authorized side of the use which the jury might make of the exhibits which they took with them having regard to the exposition of that topic in Hodge v. Williams [7] . In other words, what they were recommended to do was to use their own powers of observation with respect to the pistol to estimate the value of the testimony before them and not to carry out experiments of their own for the purpose of gathering additional evidence. 1. (1947) 47 S.R. (N.S.W.) 489. 2. (1947) 47 S.R. (N.S.W.), at 493.

I am in agreement with the reasons for judgment prepared by Gibbs C.J. I would refuse the application but in the event that special leave is granted I would dismiss the appeal.

For the reasons substantially the same as those expressed by Stephen J. I would refuse to grant special leave to appeal.

The sole ground for this application for special leave to appeal from the decision of the New South Wales Court of Criminal Appeal (Street C.J., Glass J.A., and O'Brien C.J. of Cr.D.) is that the applicant's trial miscarried when the trial judge invited the jury to experiment with a firearm as an aid to their consideration of his defence.

On 29 May 1980, after a trial extending over nine days, a District Court jury found the applicant guilty of a charge that on 8 July 1978 he maliciously shot at one Rajcinoski with intent to do him grievous bodily harm. The charge arose out of an incident which occurred on the date in question at the night club conducted by the applicant. According to the defence evidence, Rajcinoski was not welcome on the premises, and when asked to leave became abusive and struck the applicant. A scuffle ensued in the course of which the two men wrestled with each other and rolled down the flight of stairs leading from the premises to the first landing. Regaining their feet, they fell apart from each other a short distance, and the applicant, fearing that the other man was drawing a knife to kill him, pulled a loaded revolver which had been tucked inside his belt. He claimed that he drew the firearm only to protect himself and that he had no intention of firing it, but as he brought the revolver up in his right hand Rajcinoski struck him on the hand and the weapon discharged through a nearby window. He said it all happened so quickly that he did not know where the revolver was pointing prior to the blow on his hand. Although he could not remember whether his finger was on the trigger at the time, the defence accepted that his finger must have been so placed as to cause the discharge when the hand was struck. The forensic evidence rules out an accidental discharge of the firearm during normal handling or when subjected to moderate blows or when dropped.

The firearm in question does not have a safety catch, but is of a type which has a double action. The hammer may be pulled back by hand, whereupon the weapon is cocked and may be discharged by a pressure on the trigger of four pounds eight ounces. This is described as a single action. The trigger in order to discharge the firearm when cocked has to move a very short distance amounting only to some hundredths of an inch. Alternatively, the weapon may be discharged without prior cocking, simply by pressing the trigger. However, in such a case, which is described as a double action, pressure of about twelve pounds has to be applied and the trigger will be required to move something like one inch. The applicant testified that the revolver was not cocked at the material time.

It is clear that the central issue in the trial was whether the applicant deliberately fired at Rajcinoski, or whether the revolver was discharged accidentally as a result of a blow to the applicant's hand. The defence was that the blow must have caused the applicant instinctively to clench his hand whereby his finger resting on the trigger moved the double action and so caused the weapon to fire. A ballistics expert spoke of experiments he had conducted over the years which tended to show that a sudden unexpected pulling on the barrel of a firearm held by another person had the tendency to cause that person to clutch the butt rather than for the finger to pull the trigger and an accidental discharge had never resulted. He added that he had often seen persons inadvertently bumped while on the rifle range holding a firearm but without seeing an accidental discharge result. The lack of correspondence between the circumstances described by the expert and those alleged to have existed at the time of the shooting in the present case is obvious, as was emphasised by answers the witness made to questions from the trial judge:

Q. Detective, do I understand this, that the test you have conducted in suddenly bumping or attempting to seize the weapon held by the subject in the test, the subject has always been assured that everything is perfectly safe and there is no possibility of them being hurt before the tests are done?

Q. Are there any tests anywhere of what the reaction might be of somebody who is afraid and frightened and on the defensive when the opponent, the aggressor bumps him or tries to seize the gun?

A. I can't imagine how one could carry out those tests, your Honour.

The complaint that Mr. Porter, counsel for the applicant, makes is that notwithstanding that last answer from the expert, the trial judge, in the course of directing the jury, himself conducted a demonstration in which he held the revolver in one hand and struck that hand with his other hand. He then suggested that the jury conduct the same experiment for themselves in the jury room. The passages from the transcript of the proceedings of which complaint is made are as follows:

Next situation that you may care to look at quite carefully is the double action, while the hammer is right in where it is now and the finger is on the trigger. It takes twelve pounds to pull it back, and the trigger you will see moves a long way back relatively, before the hammer falls. You have heard the expert opinion, you look at this Exhibit, you test it for yourselves. You use your commonsense, in determining whether or not, while it is uncocked some blow to the hand can cause the finger to move that distance back, and the gun to go off.

You will see that if it is cocked back there it is a matter for you, for yourselves in the jury room, the expert has told you nothing about it, apparently did not do any tests. But you may find in the jury room for yourself that when it is cocked, if you try it for yourselves, that a blow on your hand may cause this to go off.

Now I am not offering you evidence, and whether I subconsciously pulled the trigger when I struck my hand or not, I cannot tell you, it will be in the jury room with you and that is a legitimate exercise in reasoning for you to use to determine some of the questions of fact and the very important ones.

You will recall that the accused has said to you "I didn't cock that gun. It went off accidentally."

It may be of some assistance to you to have a look at these various positions with this pistol. For instance, if you came to the conclusion that, "that is just not right, a blow to the hand will not, to the hand holding this gun, will not discharge while it is uncocked"; that is; "I do not accept that, that does not happen, that cannot happen and it did not happen;" - There is an alternative, that you might say to yourself; "When it can happen, when it is cocked". But of course here that may not be of great assistance because the accused swears to you that he did not cock it, (my emphasis).

Later on in his charge he said, referring back to his demonstration with the pistol: And I say to you the demonstration in effect that I have given from the bench, that is not evidence. At the adjournment for lunch following this part of the judge's direction to the jury, counsel for the applicant sought the discharge of the jury without verdict on the ground that the invitation to the jury to conduct their own experiments as to the accidental discharge of the revolver was wrong and seriously prejudicial to the defence. The learned trial judge rejected the application, holding that the jury were entitled to assess for themselves "the ease or lack of ease with which the trigger might be unintentionally moved by some blow or some trauma delivered to the hand or to the pistol while it is held". Nevertheless, when continuing the summing up after lunch, the trial judge adverted again to the evidence of the tests conducted by the ballistics expert, and suggested that the jury might perhaps feel that that evidence was not of any great weight because the persons on whom the experiments were conducted were "comfortable and at ease", and had been assured "that nothing possibly adverse can happen".

Before I proceed, it may be remarked that although the transcript does not record the precise demonstration which was conducted by his Honour, it would appear from the form of counsel's objection that he administered two blows to his hand as he held the weapon, one with the weapon cocked, and one with it uncocked. The trauma of the blow when the weapon was cocked apparently caused the release of the trigger, but this did not happen when it was uncocked.

Mr. Porter's objection is that the demonstration coupled with the invitation to experiment that was extended to the jury encouraged it to create fresh evidence. It was evidence which could be gravely prejudicial to the defence of accidental discharge and as to which, it being confined to the secrecy of the jury room, the applicant had no opportunity to examine and answer. He argues that the principles of law which are well established in relation to the limitations of a view are applicable in this case.

In Hodge v. Williams [8] , the Full Court of the Supreme Court of New South Wales set aside the decision of a judge who, with the concurrence but in the absence of the parties, visited an electric railway station and thereafter took his observations into consideration in coming to his decision. Davidson J., with the concurrence of the other members of the Court, said [9] ;

When articles are in evidence as exhibits, or are inspected outside as if they were exhibits in the case, the tribunal may with its own powers of observation and general knowledge estimate the value of the evidence of witnesses directed to the issue concerning those articles, and if necessary refuse to accept that evidence. Nevertheless, it is not permissible for the Judge or jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional evidence, and apply it in the determination of the issue, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel.. In Scott v. Numurkah Corporation [10] this Court, after citing with approval a statement by Davidson J. in Unsted v. Unsted [11] of the principles applicable to a view in which he referred to Hodge v. Williams, added; The statement that "the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence" is fully supported by authority. 1. (1947) 47 S.R. (N.S.W.) 489. 2. (1947) 47 S.R. (N.S.W.), at p. 493. 3. (1954) 91 C.L.R., at p. 313. 4. (1947) 47 S.R. (N.S.W.) 495.

The Full Court of the Supreme Court of Victoria had occasion recently in Reg. v. Alexander [12] to consider the refusal by a judge of a request for a view. In upholding the exercise of the trial judge's discretion, McInerney and Murphy JJ., in a joint judgment, said F

In my opinion, these principles afford appropriate guidance in the use of demonstrations or experiments.

The principal judgment in the Court of Criminal Appeal was given by Street C.J. His Honour concluded that the trial judge did not err in the comments he made to the jury regarding the propensities of the revolver and in his exhortations to them to examine it for themselves and to form their own conclusions. He said:

The revolver was properly in evidence. There was expert evidence regarding what was needed to make it discharge. It seems to me no less than common expectation that the jury would try out for itself the propensities of this weapon, its liability to discharge, the ease and difficulty of operating it, and do such other things in relation to it as would enable them to make up their minds as to whether the Crown had proved beyond reasonable doubt that this weapon was deliberately discharged by the appellant on the night in question. He also referred with approval to a sentence in the judgment of the South Australian Court of Criminal Appeal in Reg. v. Hamito v [18] , where the Court said: When exhibits are sent into the jury room it is understood that the jury are at liberty to inspect and experiment with them in any reasonable manner which occurs to them. Glass J.A. added a few words, expressing the opinion that the invitation which the trial judge extended to the jury was an invitation to test "the mechanical properties of the pistol in order to enable them to determine whether they were satisfied beyond reasonable doubt that the pistol had been discharged intentionally and not accidentally". Applying the test propounded in Hodge v. Williams [14] , he concluded that - what they were recommended to do was to use their own powers of observation with respect to the pistol to estimate the value of the testimony before them and not to carry out experiments of their own for the purpose of gathering additional evidence. 1. (1979) 21 S.A.S.R. 596, at p. 598. 2. (1947) 47 S.R. (N.S.W.) 489.

With great respect to their Honours, it seems to me that the invitation to the jury fell on the wrong side of the line expounded in Hodge v. Williams. It was, of course, entirely proper for the jury to have the revolver in the jury room, and to handle and inspect it in order the better "to understand the questions that are being raised, to follow the evidence and to apply it". The operation of the trigger, in both the single and double action positions, would serve to bring home clearly to the minds of the jurors the significance of the evidence of four pounds eight ounces and twelve pounds pressure respectively required to discharge it. But to encourage the jury to experiment with the weapon with a view to seeing if it would accidentally discharge when a blow was delivered to the hand holding it was to invite it to create new material, to which it seems to me that two objections could be taken. The first is that pressed by counsel for the applicant, namely, that any such experimentation must, before it can be validly taken into consideration, be exposed to the scrutiny and testing of the parties. But in my view there is another objection. Such experimentation is totally irrelevant, unless for the purpose of the experiment the precise circumstances to which the applicant testified are re-created. And that is simply impossible. The ballistics expert said that he could not imagine how one could carry out relevant tests. Simply to hold the firearm in one hand and to strike that hand with the other bears no resemblance to a situation in which it is said that two men are engaged in a vigorous struggle involving blows, wrestling and verbal abuse, in the course of which one draws a gun and the other delivers a blow to the hand holding the gun. The accidental discharge of the firearm could conceivably depend on the violence of the blow and the manner of the impact, together with the element of surprise, if present. There can be no reconstruction of such an incident, whether in the jury room or on the Bench, that would bear any correspondence to reality. An attempt at such a reconstruction could be fraught with prejudice to both the parties, a prejudice which in the case of the jury room is never likely to be revealed or recognized as such.

Indeed, another way of stating the objection to the course adopted by the trial judge is that he presented the problem to the jury as one which focussed on the propensities of the firearm when perhaps the critical factor was the question whether the accused reacted spontaneously and unintentionally to the blow by pulling the trigger and so discharging the pistol. It may fairly be said that the defence conceded that the weapon was loaded but uncocked, that the accused's finger must have been on the trigger and that it was his finger which caused the discharge. Nothing more of relevance was to be learned of the pistol beyond the fact that when it was uncocked it required approximately twelve pounds pressure to move the trigger back a distance of about an inch in order to cause it to fire. The unknown factor in the attempted reconstruction in the jury room of the applicant's version of the incident was his reaction to the blow which Rajcinoski delivered to the hand holding the pistol. No juror could reproduce a reaction so personal to the accused, let alone the circumstances which allegedly gave rise to it, as a means of testing the acceptability of that account.

In the end, the jury's decision as to whether the Crown proved beyond a reasonable doubt that the applicant deliberately discharged the firearm on the night in question must rest wholly and solely on their consideration of the testimony of those who had given evidence in the trial.

It might be argued that although the learned trial judge refused to entertain the objection to the summing up, he nevertheless mitigated its possible prejudice later in his summing up when he reminded the jury of the ballistics evidence and deprecated the value of experiments conducted with people who were comfortable and unafraid at the time of receiving the blow. However, this subsequent comment was expressly related to the evidence of the ballistics expert, and I am unable to assume that the jurors would apply that caution to the experimentation which they had themselves been invited to undertake.

In my respectful opinion the trial miscarried in a serious respect. I would grant special leave to apeal, allow the appeal and order a new trial.