Murray v The Queen

Murray v The Queen - [2002] HCA 26 - HCA 2002 case summary — Zoe

[9]

GAUDRON J. The facts are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for holding that the appeal should be allowed on the sole ground that the trial judge directed the jury in a manner that mis-stated the onus of proof.
According to the evidence-in-chief of the appellant concerning the events leading to the death of Tony Celap, the deceased became verbally abusive whereupon he, the appellant, took a loaded shotgun from under his bed and approached the deceased with the gun in his right hand. As the deceased started to rise from a chair, the appellant lifted the gun to waist height, the deceased's arm shot out and something hit the appellant on the head. The gun then went off. He said that he took the gun into the room where the deceased was sitting solely with the intention of frightening him so that he would leave the house.
In cross-examination, the appellant said that he might have cocked the gun but could not remember doing so. He admitted that he pointed the gun at the deceased and said that his finger "would have been somewhere around the trigger guard" and possibly on the trigger. He denied that he deliberately pulled the trigger.
The prosecution case was that the appellant discharged the gun intending to cause death or grievous bodily harm. However, the evidence of the appellant left open two possibilities: (1) that the gun discharged without any pressure being applied to the trigger; and (2) that pressure was applied to the trigger by reflex or automatic motor action when the deceased's arm shot out or when the appellant was struck on the head.
The trial judge instructed the jury with respect to accident, the subject of s 23(1)(b) of the Criminal Code (Q) ("the Code"), but did not instruct the jury with respect to unwilled act, the subject of s 23(1)(a). The first ground of this appeal raises the question whether directions should also have been given on that subject.
Section 23(1) of the Code provides:

[12]

As has been noted in other judgments, the focus of s 23(1)(a) is upon "an act or omission", whereas that of s 23(1)(b) is upon "an event". So far as concerns the offence of murder, the "act" to which s 23(1)(a) refers may conveniently be described as the "act causing death"[1], whereas the "event" to which s 23(1)(b) refers is the death which results from that act[2]. However, to describe the "act" to which s 23(1)(a) refers as the "act causing death" is to say nothing of significance. In each case, the act must be identified.
It is well settled that the "act" to which s 23(1)(a) refers is the "bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility"[3]. Thus, as pointed out by Windeyer J in Timbu Kolian v The Queen, there is a difference between merely pressing the trigger of a firearm ("dorsiflexion") and pressing the trigger of a firearm which is known to be loaded ("discharging the firearm")[4]. And in a case where death results from the use of a firearm, it is sometimes useful, as was the case in R v Falconer, to describe the act causing death as the discharging of the firearm.
To describe the act causing death in a firearms case as the discharging of the firearm is to conceal a number of difficulties. Thus, in Vallance v The Queen, Windeyer J said that "discharging a firearm is, of course, a complex act, involving loading the piece, cocking it, presenting it, pressing the trigger"[5]. Even so, it might, with equal accuracy, be described as pressing the trigger of a loaded and cocked gun.
The difficulties associated with identifying the act causing death in a firearms case may be seen in Ryan v The Queen[6], a fatal shooting case involving a charge of murder under the Crimes Act 1900 (NSW) but which, otherwise, bears strong similarity to the present case. The accused in that case pointed a loaded and cocked rifle at a service station attendant and, while still pointing the rifle with one hand, tried to tie the attendant up with the other. The attendant moved suddenly and the accused's finger pressed the trigger without, on the accused's account, any intention on his part. In that case Taylor and Owen JJ said:

[15]

In Ryan, Windeyer J identified the act causing death as "the discharging of a loaded firearm when it was pointed towards the man who was killed"[9]. On the issue whether it was the act of the accused, his Honour expressed the view that phrases such as "reflex action" and "automatic reaction" have no application where a person "has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man"[10]. His Honour explained that if the person concerned "then presses the trigger in immediate response to a sudden threat or apprehension of danger ... his doing so is ... a consequence probable and foreseeable ... and in that sense a voluntary act"[11]. His Honour added that "what was done might not have been done had the actor had time to think"[12] but questioned the notion that the act was involuntary "merely because the mind worked quickly and impulsively"[13].
When regard is had to the different approaches taken to identifying the act causing death in Ryan, the wisdom of what was said by Dixon CJ in Vallance becomes apparent. In Vallance, Dixon CJ expressed the view that "it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions as s 13 [of the Tasmanian Criminal Code] can be worked out judicially"[14].
There is another aspect to s 23(1)(a) of the Code that should be noted. Although it is accurate to speak in murder cases of the "act" referred to in s 23(1)(a) as the "act causing death", it is for the jury to determine what act or acts were done by the accused and whether they or any of them caused death. Thus, in Ryan, Barwick CJ expressed the view that, on the facts of that case, "the jury could choose the presentation of the gun in the circumstances [in which it was presented] or its subsequent discharge as the act causing death."[15] And on the view that the act causing death was the discharge of the gun, his Honour allowed that there were at least four possibilities, namely:

[21]

Subject to two matters which will be dealt with shortly, I think the analysis by Barwick CJ in Ryan is legally and logically correct and that that analysis is applicable in this case. The first, as has already been noted, is that Ryan was concerned with a charge of murder under the Crimes Act 1900 (NSW). At the relevant time, s 18(1) of that Act defined murder to include an act causing death that was done with reckless indifference to human life or done in an attempt to commit or during or immediately after the commission of an act obviously dangerous to human life[18]. Thus, the act causing death could be identified by Taylor and Owen JJ as "the presentation of the [loaded and cocked] rifle ... with the finger of the [accused] on the trigger in circumstances in which an attempt at resistance might well have been expected"[19].
Unlike s 18(1) of the Crimes Act 1900 (NSW), as it stood at the time of the decision in Ryan, the definition of murder in s 302(1) of the Code[20] contains no provision permitting a person to be convicted of murder simply for an act done with reckless indifference to human life or done in an attempt to commit or during or immediately after the commission of an act obviously dangerous to human life. Thus, if the act causing death in this case were to be identified as simply presenting the loaded shotgun, that might constitute manslaughter by negligent act[21], but it would not constitute murder[22].
The second matter that should be noted with respect to the analysis undertaken by Barwick CJ in Ryan concerns his Honour's acceptance of the possibility that, in that case, pressure was applied to the trigger by a reflex or automatic motor action. The question whether a reflex or automatic motor action is an involuntary or unwilled act is a question for the jury. And on that issue, there is much to be said for the view expressed by Windeyer J in Ryan that the pressing of a trigger in response to a sudden threat or apprehension of danger is a probable and foreseeable consequence of presenting a loaded gun and a jury might, on that account, find it to be a voluntary act.
Having regard to the definition of murder in s 302 of the Code and the consideration that the question whether the act causing death is or is not a willed act is a question for the jury to determine, the issues for consideration by the jury in this case fell into three categories. The first was whether the prosecution had excluded beyond reasonable doubt the possibility that the gun had discharged without pressure being applied to the trigger and, also, the possibility that it was discharged by an unwilled reflex or automatic motor action. And ordinarily that would have required appropriate directions with respect to the nature of an unwilled act, as well as with respect to accident.
The second area for the jury's consideration was intention. If, but only if, the prosecution excluded the possibilities identified above, the jury had to consider whether the prosecution had established beyond reasonable doubt that the appellant had discharged the shotgun with the intention of causing death or grievous bodily harm. If not so satisfied, the third question, namely, manslaughter would then have fallen for consideration. That question could arise either by reference to the voluntary discharge of the gun without an intention to kill or do grievous bodily harm or, if not satisfied that it was voluntarily discharged, on the basis of a negligent act constituted by the presentation of the loaded gun.
It is convenient now to turn to the directions given by the trial judge. Her Honour drew the jury's attention to the prosecution and defence cases and, on the question of murder, instructed the jury that it had "to decide which versions of those events ... [it would] accept". Her Honour then posed the question "[w]hat was [the appellant's] intent?". A little later her Honour instructed the jury that if "his intent was just to frighten him and drive him out of the house, then you should find that he is not guilty of murder". After giving directions on intoxication and accident, her Honour instructed the jury as follows: "[i]f you accept the accused's version of what happened that night in whole or in part, you are going to have to evaluate his conduct and decide whether it was conduct such as to amount to criminal negligence".
Although the trial judge's directions were not entirely explicit, it is clear that the jury was directed that if it accepted the appellant's version which, as earlier indicated, raised the possibility either that the gun discharged without the application of pressure to the trigger or that pressure had been applied by reflex or automatic motor action, it should acquit him of murder and consider whether or not he was guilty of manslaughter on the basis of criminal negligence.
In framing the matters which the jury had to decide by reference to the appellant's version of events, the trial judge sufficiently raised the questions whether the gun discharged without the application of pressure to the trigger and whether it was discharged by the appellant in a reflex or automatic motor action, treating the latter possibility, in effect, as an unwilled act. There was thus no need for her Honour to direct the jury with respect to that issue. Accordingly, no miscarriage of justice was occasioned by the failure to give such directions and the argument for the appellant to the contrary must be rejected.
Before leaving the question of unwilled act, it is appropriate to observe that the directions given by the trial judge were, in one sense, unduly favourable to the appellant. They excluded from the jury's consideration the question whether, if the trigger was pressed as a result of a reflex or automatic motor action, that was an unwilled act. They also withdrew from the jury's consideration the possibility that the accused might be guilty of manslaughter on a basis other than criminal negligence.
Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury's determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour's summing up. And as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground.
The appeal should be allowed, the order of the Court of Appeal of Queensland should be set aside and, in lieu thereof, it should be ordered that the appeal to that Court be allowed, the conviction quashed and a new trial ordered.
GUMMOW AND HAYNE JJ. The appellant was charged with the murder of Tony Celap at Yarraman in Queensland. Mr Celap died in the appellant's house as the result of shots discharged from a double‑barrelled shotgun while the appellant was holding the gun. Both barrels were discharged but the weapon was faulty and prone to sympathetic discharge of the second barrel on the first barrel discharging. Further, the weapon could discharge if struck but there was no evidence at trial which suggested that it was struck before it discharged the shots which killed the deceased. There was evidence at the appellant's trial from which it was open to the jury to conclude that the appellant had, for a long time, harboured feelings of considerable animosity towards the deceased. The appellant was convicted of murder.
He appealed to the Court of Appeal of Queensland against his conviction. By majority (McMurdo P and Atkinson J; McPherson JA dissenting), the Court of Appeal dismissed his appeal[23].
Two issues arise on the appeal to this Court. First, should the Court of Appeal have held that there was a miscarriage of justice by reason of the trial judge not directing the jury about unwilled acts and events occurring by accident? Secondly, should the Court of Appeal have held that the trial judge's directions about onus of proof were inadequate?
The first of those issues is similar to the issue which arose under The Criminal Code (WA) in Ugle v The Queen[24], oral argument in which was heard immediately before oral argument in this matter. As in Ugle, to understand the way in which any issue about unwilled acts and events occurring by accident arises in this matter it is necessary to begin by considering the provisions of the Criminal Code (Q) ("the Queensland Code") which deal with homicide. Given the common origins of both Codes in the work of Sir Samuel Griffith which in turn drew on other criminal codes[25], it is to be recalled that the relevant provisions of the Queensland Code have many similarities with the equivalent provisions of The Criminal Code (WA), but they are not identical.
Chapter 28 of the Queensland Code deals with "Homicide-Suicide-Concealment of Birth". Section 291 provides that "[i]t is unlawful to kill any person unless such killing is authorised or justified or excused by law". Section 293 provides that "[e]xcept as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person". Section 300 then provides that "[a]ny person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case". A person who unlawfully kills another "if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm" is guilty of murder[26]. "A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of 'manslaughter'"[27]. Section 304 of the Queensland Code deals with killing on provocation; ss 271 and 272 deal with self‑defence against unprovoked and provoked assault. Other provisions[28] deal with acts done in defence of various forms of property.
Chapter 5 of the Queensland Code (ss 22‑36) deals with the subject of "Criminal Responsibility". Section 23(1) provides:

[47]

This deficiency in the charge did not work to the detriment of the appellant. If anything, it placed too high a burden on the prosecution, but counsel for the prosecution at trial made no complaint about it despite having asked the trial judge to charge the jury on the subject. In any event, in this Court, principal attention was focused in argument on the first or unwilled act limb of s 23(1).
At trial, that first limb received next to no attention. Trial counsel for the prosecution submitted (in effect) that only the second limb of s 23(1) applied and trial counsel for the appellant did not demur, either when the matter was raised before the judge began her charge or later, by way of exception to what had been said. Nor did trial counsel for the appellant raise the subject in his address to the jury, focusing instead upon other aspects of the case. Ordinarily, that course of events at trial should be enough to demonstrate that an unwilled act was not an issue in the trial. If it had been, counsel would be expected to address the jury about it and both counsel would be bound to draw the trial judge's attention to relevant authorities touching the issue.
It is as well, however, to go on to explain why there was no issue about the operation of the first limb of s 23(1). In order to do so, it is necessary to identify the relevant "act".
Consideration of the several cases in this Court in which questions about unwilled acts have been examined[45] reveal some of the difficulties that, if not implicit in the concept of unwilled acts, at least are likely to arise in dealing with that concept. Prominent among those difficulties is understanding what is the relevant "act", or in this case, the relevant "death‑causing act"[46]. Although it may now be regarded as clear that in this case, as in Falconer, the death‑causing act was the discharging of the loaded shotgun[47], why is that the relevant "act" and what exactly does it encompass?
In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly defined is that "act", the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the "death‑causing act", the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As H L A Hart pointed out[48] more than 40 years ago, a theory which splits an ordinary action into three constituents - a desire for muscular contractions, followed by the contractions, followed by foreseen consequences - is a theory based on a division quite at variance with ordinary experience and the way in which someone's own actions appear to that person. As Hart said[49], "The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions."
The difficulty of over‑refinement can be exemplified by comparison of this case with the facts in Ryan. In Ryan, Windeyer J characterised what had happened as Ryan pressing the trigger[50] "in immediate response to a sudden threat or apprehension of danger". In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that[51]:

[50]

That is why the "act" to which s 23(1) refers is not restricted to the appellant's contracting his trigger finger. But what is encompassed by saying that it is the appellant's discharging the loaded gun that must be willed? It now seems clear from Falconer[53] that the "element of intention" which Windeyer J (in both Mamote‑Kulang v The Queen[54] and Timbu Kolian v The Queen[55]) said should be added to the notion of will may not always be helpful, but there is much force in the views expressed by Windeyer J in Ryan[56] to the effect that the language of "will" and "intellect", "unintentional" and "inadvertent", is necessarily imprecise. As Barwick CJ said in Timbu Kolian[57], "we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse". In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin.
In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily[58]. Approaching the problem in that way may reveal which party must raise the issue to have it considered - the so‑called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption.
Rather than adopting approaches such as these, it is necessary to focus upon the relevant "act". Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may be steps to which the appellant would say that he had turned his mind; others may not have been accompanied by conscious thought. It is by no means unknown for someone to carry out a task (like, for example, loading a weapon) without thinking about it, if it is a task the person has undertaken repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at the source of that threat as soon as the threat is perceived, and may do so without hesitating to think. But in neither example could it be said that the act (of loading or firing the weapon) was an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of discharging the loaded shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole, was not willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion of sleep walking, epilepsy, concussion, hypoglycaemia or dissociative state[59].
In Ugle there was, on the evidence, a live question about whether the accused had struck the deceased with a knife or whether it was the deceased who had struck the knife which the appellant was holding. In this case, there was no issue of that kind. In this case, unlike Falconer, there was no question of automatism[60]. In this case, unlike Woolmington, the appellant did not suggest that the weapon discharged when he was drawing it to show the victim how he, the appellant, intended to commit suicide[61]. Rather, there was an issue about whether the appellant, presenting a loaded and cocked shotgun at the deceased, intended to kill him or do him grievous bodily harm. If, as the appellant said, he was struck by something thrown by the deceased and, as a result, he started, and in doing so pulled the trigger, his "act" did not occur independently of his will.
Thus, in this case, the central issue for the jury in considering the charge of murder was did the appellant intend to fire the weapon or merely present it to frighten the deceased? That is, the question was whether, in acting as he did, the appellant intended to kill or do grievous bodily harm, or had the prosecution not excluded the possibility that, as the appellant said, he had intended only to present the weapon in order to frighten the deceased. That was the subject matter of the issue which the trial judge identified for the jury. If persuaded to the requisite standard of proof that the appellant intended to kill or do grievous bodily harm to the deceased, the jury would have been correct in returning a verdict of guilty of murder. Was the jury properly instructed about the burden of proof?

[54]

Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused's evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
The order of the Court of Appeal of Queensland should be set aside and in lieu it should be ordered that the appeal to that Court is allowed, the conviction quashed, and a new trial had.
KIRBY J. Two questions were argued in this appeal from a judgment of the Court of Appeal of Queensland[62]. The first concerned suggested defects in, and omissions from, the trial judge's directions to a jury about the application to the evidence of s 23 of the Criminal Code of Queensland ("the Code"). The second concerned suggested defects in the judge's directions about the burden of proof.
In the Court of Appeal, McPherson JA dissented from the majority opinion. He concluded[63] that two passages in the trial judge's charge to the jury incorrectly suggested the imposition of a burden of proof of certain matters upon the accused. It failed to take into account the possibility that the jury might conclude that the prosecution had failed to prove its case according to the burden cast upon it by the law.
In this Court, a majority would now dispose of this appeal on this second argument[64]. I would not. This makes it essential for me to decide the first argument. It involves a principle, not without difficulty and importance, which, in any event, should be determined by the Court, given that there must be a retrial.

[55]

A strong prosecution case: The facts relevant to my opinion are set out in the reasons of other members of the Court[65]. So are the applicable provisions of the Code[66]. I will not repeat them.
Clearly, the prosecution had a very strong case of murder to present against Mr William Murray ("the appellant"). It established a foundation in the evidence that he had a motive to kill the deceased. The latter had broken into his home five years earlier, when a juvenile. He had allegedly taunted him at the time. This had occasioned threats on the part of the appellant, voiced to a policeman and a neighbour, that he would do violence to the deceased. According to the prosecutor at the trial, the deceased's evidence of exculpation was "a pack of lies". Far from the death of the deceased being unintended or an accident, the prosecution case was that the appellant had lured the deceased to his home in order to kill him or to do grievous bodily harm to him. If that case were accepted by the jury, it was a clear instance of murder as defined by the Code[67].
Correctly, the trial judge instructed the jury that a long term motive and immediate intention were not necessarily the same[68]. Nonetheless, the immediate circumstances surrounding the death of the deceased also constituted a strong prosecution case. The appellant had been paying for the deceased's drinks at a hotel for some time before inviting him to his home. The inference was available that the deceased was affected by the alcohol that he had consumed. The appellant had a loaded gun under his bed. He agreed that he might have cocked it immediately before its discharge. Certainly, he pointed the gun in the direction of the deceased. The deceased was found slumped dead in a chair. The holes of the pellets that had extruded from the back of his body were consistent with the deceased having being shot whilst in a sitting position. So was the presence of an undisturbed beer bottle in his hand[69]. The shooting occurred about five minutes after the appellant had entered his home with the deceased. There was no suggestion that the appellant was acting automatically, unconsciously or under physical or psychological forces that would make his depression of the trigger of the gun an involuntary act for such reasons[70]. The prosecution was entitled to rely on the presumption that an act done by a person, apparently conscious, is taken, in law, to be willed or done voluntarily by that person[71]. The jury's verdict of guilty of murder was not, therefore, entirely surprising.
However, under our law a conviction after such a verdict is liable to be set aside, relevantly, if it follows a trial in which the judge has given the jury a material misdirection about the law. Such a misdirection will be material if it might have deprived the accused of a chance of acquittal of the charge (or of conviction only of some lesser offence)[72].
Accordingly, it is necessary to consider the evidence at the trial that afforded the foundation upon which the appellant argued that there was a view of the facts, properly open, that might have been accepted by the jury, had they been correctly instructed about the law.
The defence case: Essentially, the appellant's case was that he had not intended to kill the deceased and that what had happened was, in effect, an "accident or misfortune"[73]. The appellant gave evidence at his trial. In support of his defence he pointed to a number of considerations. Amongst these was the fact that the shooting had occurred in his home. Given the background of declared animosity, so readily provable, the appellant was entitled to argue that anyone intending to kill the deceased, acting rationally, would have chosen a different venue for the act. Necessarily, the shooting in his home attracted the immediate notice of neighbours. It was reported to police by the appellant himself within a matter of minutes.
In his evidence, the appellant denied that he had deliberately pulled the trigger so as to cause the gun to discharge into the deceased. However, he could not explain why the gun had discharged. He told police that, on arrival at his home, the deceased had called out and threatened him when he went to the toilet; that this had caused him to procure the gun from under his bed; and that his intention at that time, in pointing the gun in the direction of the deceased, was to frighten him so as to cause him to leave.
The appellant also stated that he had been struck on the head shortly before the shooting. It was the police, not the appellant, who pointed to a wound to the middle of the appellant's forehead. This wound was later confirmed by medical examination. When this wound, and the blood emanating from it, were pointed out by police, the appellant said that he did not know what the police were talking about. However, the wound was consistent with the appellant's evidence that he had been struck on the head by something thrown by the deceased. The gun itself was a vintage firearm. The appellant said that he had never before fired it. In police experiments, the gun had a tendency to discharge irregularly when struck.
The foregoing facts presented the outline of a case arguably consistent with the innocence of the appellant of the charge of murder (although possibly consistent with a conviction of manslaughter on the footing that he was guilty of killing the deceased unlawfully but without the intent to cause his death or grievous bodily harm to him[74]). The appellant's case, as presented at the trial, therefore made it most important that the jury should receive accurate instruction about the law, with appropriate references to the applicable requirements of the Code and to the evidence that bore on its application to this case.

[62]

Neither counsel at the trial objected to the judge's directions to the jury on the issue that now succeeds. They were present and heard the judge's instructions as they were delivered after the conclusion of their addresses. Neither of them noticed any error or called for redirection on the point. Nor was it the subject of a ground of appeal to the Court of Appeal. Nor was it argued on the return of that appeal[79]. Whilst, as the majority correctly acknowledged in the Court of Appeal, these defaults were not fatal to reliance on an error if it was detected before decision and was one that occasioned a miscarriage of justice[80], they are reasons to pause before embracing that conclusion. Most especially, they oblige this Court to review the propounded defects in the context of the entire summing up.
The instructions caused no misdirection: When this approach is taken, it is proper to note that there were repeated, strong, clear and correct instructions to the jury about the burden of proof resting on the Crown. I will not set them all out for mine is a minority opinion. But the trial judge told the jury that the appellant "does not have to prove a thing"; that if they were left in any reasonable doubt about "an element or elements of the charge" they must acquit; that if there was "a reasonable possibility consistent with innocence" it was their duty to acquit; that the fact that the accused had given evidence did not mean that the burden of proof shifted to him; and that if they were not satisfied of all elements of the charge of murder, "the only honest verdict is not guilty"[81].
The foregoing were strong directions. They were repeated at various points throughout the charge. They represented a major theme of the judge's instructions on the law. The short passages now belatedly complained about must be evaluated as they would have been understood in that context.
Approached in that way, I am unconvinced that a material error has occurred on this issue requiring intervention of this Court to prevent a miscarriage of justice. I regard the identified words as transient infelicities. I acknowledge that judicial directions on the burden and standard of proof are crucial. They go to the very heart of the accusatorial character of criminal trials before juries, as they are conducted in this country[82]. However, as I read the trial judge's instructions to the jury, her Honour's reference to "accepting the accused's evidence" or version of events, taken in context, was merely a direction of the jury's mind to the evidence that bore on the issue of whether the prosecution had established the intent to kill, being the issue that the judge was then addressing. This Court has said that it is important, sometimes essential, that judges should relate their instructions on the law to the evidence and issues in the trial. This is what I take her Honour to have been doing. Viewed in context, there was not such an error as requires, or authorises, the intervention of this Court on that score[83].
It follows that I would reject the appellant's second argument. This requires me to address his first argument concerning s 23 of the Code. Given that this Court is not a general court of criminal appeal and that it is the construction of s 23 of the Code that is the point of legal significance in the case, my conclusion is not a surprising one. As, in any event, the appellant must be retried it is essential to resolve the arguments about s 23. I therefore turn to that provision.

[70]

Application of the Code, s 23(1)(a): It is proper to acknowledge that doubts have been expressed in earlier cases as to whether, in the nature of the components of murder under the Code, s 23(1)(a) could have any application. The central reason for such doubts is that, for murder under s 302(1)(a) of the Code, reference to acts "independently of the exercise of the person's will" is seen by some to contradict the necessity of establishing "intention" as an express ingredient of the offence. Such doubts were stated in R v Mullen[104] both by Latham CJ[105] and by Dixon J[106].
The same opinion has been reflected in opinions of judges of the Queensland Court of Appeal, very experienced in the meaning and application of the Code[107]. Obviously, considerable respect must be paid to these opinions. However, I agree with Callinan J[108] that, neither as a matter of legal authority nor as a matter of the proper understanding of the language of the Code, is s 23(1)(a) ousted in the case of a charge of murder brought under s 302(1)(a) of the Code[109].
First, the opinions of Latham CJ and Dixon J in Mullen were not part of a rule established by that decision. They are not, therefore, binding in this case.
Secondly, it is difficult, as a matter of principle, to accept the proposition that s 23(1)(a) has no application to a charge of murder simply because that offence postulates intention as an element. The provisions of that paragraph are, in their terms, applicable to a great number and variety of offences mentioned in the Code for most of which the existence of the requisite intent is an essential legal ingredient. It seems unlikely that a general provision, stated at the outset of the Code, would be inapplicable to all of those offences simply because intent on the part of the accused is an ingredient of each offence.
Once the necessity to read s 23(1)(a) with the multitude of offences provided by the Code (including that stated in s 302(1)(a)) is acknowledged, it is crucial to respect the relevant delineation of functions that must be observed in a trial by jury. In such a trial, the applicable law is explained by the judge but factual disputes are reserved to the jury. In the present case, it was necessary for the prosecution to establish the existence at the relevant time of the intention to cause the death of the person killed, mentioned in s 302(1)(a). Appropriate instructions were given by the judge on that issue. But if, on the facts, s 23(1)(a) arguably applied, it was the accused's right to have that paragraph's provisions, in their particularity, explained to the jury as the Code contemplates. It might be said that par (a) gives added emphasis to the issue of the will of the accused that is already reflected to some degree in the definition of the offence of murder. But by directing the collective mind of the jury specifically to the exemption from criminal responsibility for specified "acts" or "omissions", s 23(1)(a) reiterates and reinforces the obligation of the prosecution to prove beyond reasonable doubt the "act or omission" upon which it relies. It requires the prosecution to negative the proposition that any such "act or omission" occurred independently of the exercise of the accused's will.
In a sense, the ingredient of intention, included in the definition of murder in s 302(1)(a) of the Code, identifies the prosecution's obligations broadly or globally. On the other hand, the excuse from criminal responsibility stated in s 23(1)(a) focuses the mind of the decision-maker more narrowly and specifically on the "acts or omissions" that resulted in the offence. Both the provisions appear in the Code. The accused is entitled to whatever benefits, in the conclusions of the jury, may be derived from each[110]. In some cases, depending on the evidence, there will be no additional relevance of s 23(1)(a) of the Code. But in the present case, where the factual dispute concerned the last "act" that caused the death of the deceased (the pulling of the trigger or whatever other "act" caused the appellant's gun to discharge) it was necessary for the trial judge to leave the provisions of s 23(1)(a) to the jury. She was bound to do so because the provision was clearly relevant to the factual case that the appellant was presenting for the jury's consideration and which the prosecution had labelled "a pack of lies".
The appellant did not contest the "acts" anterior to the final (or "death-causing") act that caused his gun to discharge. But what he did posit was the real possibility that the final and ultimately death-causing "act" had occurred independently of his will. That possibility was arguably consistent with the appellant's being struck on the forehead in a way that might have caused the trigger of the gun to have been depressed involuntarily. If that were the conclusion of the jury, on the facts, it would (subject to consideration of criminal negligence) have been open to the jury to decide that the appellant was not criminally responsible for the "act" in question because the ultimately fatal "act" had occurred "independently of the exercise of [the appellant's] will".
I agree with Gaudron J that the identification of what was the relevant "act" and whether it was willed or not were questions for the jury[111]. They were not questions of law for the judge. Even if the final "act" was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate "act" that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a "reflex" act, it was still a question for the jury whether that act was properly to be viewed as having occurred "independently of the exercise of the [appellant's] will."
A conclusion that s 23(1)(a) arguably applied to the evidence in the case gives rise to the necessity to instruct the jury on the provisions of the Code relating to negligent acts and omissions[112]. As it is common ground that the trial judge did not give the jury instruction about the application of s 23(1)(a) and as, in my view, such instruction was obligatory in the circumstances, the trial departed from the requirements of the law.
Inapplicability of the proviso: The Director of Public Prosecutions argued that, if this conclusion were reached, no miscarriage of justice had actually occurred and that, accordingly, the "proviso" should be applied to uphold the appellant's conviction[113]. I disagree. I have already conceded that the evidence against the appellant was very strong. A jury might well regard the niceties inherent in the appellant's contentions as artificial and completely unpersuasive. But what is ultimately involved here is not an evaluation of the evidence by this Court. It is a consideration of the consequence of the failure of the trial judge accurately to instruct the jury whose function it was to reach a conclusion on the point. Moreover, the exemption concerned was pertinent to the way in which the appellant gave his evidence and conducted his defence.
Addressing the attention of the jury to the provisions of s 23(1)(a) had certain advantages for the appellant beyond those deriving from the accurate instruction which the trial judge gave to them about the need to be satisfied beyond reasonable doubt of the intent necessary to find the appellant guilty of murder. Properly addressed, s 23(1)(a) would have sharply focused the jury's attention on the question that the appellant's conduct of his case posed. This was whether the prosecution had proved beyond reasonable doubt that the final "act" that caused the death of the deceased was done in the exercise of the appellant's will. Or whether the prosecution had failed to negative the real possibility that the discharge of the gun was the result of an act unaccompanied by the requisite will. In terms of the evidence, the question was whether the prosecution had failed, for example, to negative the real possibility that the gun ultimately discharged in some way consequent upon the appellant having being struck in the middle of the forehead by something thrown at him by the deceased in such a fashion as to cause the gun to discharge, although the only intention of the appellant in procuring the gun and pointing it at the deceased had been to frighten the deceased away.
Conclusion: The trial miscarried: In the circumstances of this trial, and the way the evidence was adduced, I am not satisfied that the prosecution has shown that the misdirection that I have found deprived the appellant of no real chance of acquittal[114]. The appellant's conviction was not inevitable. It follows that the conviction must be set aside and a new trial ordered.

[71]

Meaning of "event" and "accident": The foregoing is sufficient to dispose of the appeal. However, as the appellant must be retried, and as questions may arise in the retrial concerning the "defence" of accident, I will also state my views on that matter[115].
The logic of my reasoning in respect of the application of s 23(1)(a), as a general provision of the Code, applies equally to s 23(1)(b) with respect to those matters of fact, presented by the evidence, that attract the application of par (b).
The distinction between the "act or omission" referred to in par (a) and the "event" referred to in par (b) has already been noticed[116]. It is a distinction not without difficulty[117]. The distinction indicates that par (a) is addressed to more particular conduct and par (b) to the outcome of the alleged conduct that would otherwise render a person criminally responsible. In the present case, it was common ground that the "event" concerned was the death of the deceased viewed in the context in which it had come about.
The "event" was arguably accidental: Was it arguable that, in this case, the death of the deceased had occurred by accident? In the reasons of Gummow and Hayne JJ the opinion is expressed that it was not and that, therefore, it was unnecessary in this case for the judge to direct the jury on the application of par (b)[118]. With respect, I disagree. A lot of legal consequences can attach to the preposition "by" when used in a statutory context. Often, that little word will attract a great deal of consideration about the causative relationship between an undoubted event and the antecedent conduct[119]. So, in my opinion, it is in the application of the Code to a case such as the present. Was the "event" of the death of the deceased arguably caused "by" accident?
It may not be doubted that the death of the deceased was causally related to certain deliberate conduct on the part of the appellant. He invited the deceased home, notwithstanding their earlier conflict. He provided him with continuous alcohol over some time. He approached him with a gun that he knew was loaded. He accepted that he might have cocked the gun ready for firing and that he might have put his finger on the trigger. He agreed that he pointed the gun in the direction of the deceased. The deceased was seated. All of these were acts which, without more, were incompatible with a conclusion that the ensuing death had arguably occurred "by accident".
But if the jury accepted that the death occurred by the discharge of the gun caused by the appellant's being startled or hit and so handling the gun as to result in its discharge in the direction of the deceased, it would be open to the jury to conclude (subject to the provisions of the Code relating to negligent acts and omissions) that the death of the deceased had, in the circumstances, occurred "by accident". At least it would be open to the jury to so conclude if they decided that the Crown had not negatived as a real possibility that the death was caused by an unintended act on the part of the appellant when all that he wanted to do, by procuring and pointing the gun, was to frighten the deceased and cause him to leave his home. Consistently with what I have said in relation to s 23(1)(a) the question is not one for the judge. It is for the jury, assisted by an explanation from the judge as to the provisions of par (b).
The issue was for the jury: The words "by accident" are not terms of art. Whilst decades of case law gathered around the word "accident" in workers' compensation statutes[120], when appearing in the Code it was obviously intended to be left to juries to understand and to apply as an ordinary expression of the English language. So understood, an "accident" is something that happens unexpectedly, without design or by chance[121]. If the jury were to accept as a real possibility that the appellant secured, pointed and cocked the gun only to frighten and remove the deceased from his home but ultimately discharged it accidentally when he was startled or struck by something thrown at his forehead, all of the antecedent conduct would not make inapplicable a conclusion that the "event", viewed as a whole, was one that had occurred "by accident". It was for the jury, not judges, to say what the "event" was in the circumstances. Upon that matter, therefore, the appellant was entitled to have the verdict of the jury. So much followed from the appellant's express denial that he had deliberately pulled the trigger, the way the case was conducted at the trial and the language of the paragraph.
The judge did not direct the jury in this way, although some instruction was given by her concerning the provisions of s 23(1)(b). Subject to the manner in which any second trial is conducted and the evidence that is there adduced, the appellant would be entitled to have the jury instructed on both paragraphs of s 23(1) of the Code.

[73]

The deceased, Tony Celap, aged 21 years, was shot at the appellant's residence at Yarraman on 18 August 1997. Death from wounds to the left side of his chest ensued.
The appellant had harboured a long-standing animosity towards the deceased. It arose out of a breaking and entering of his residence in May 1992. Tony Celap, then aged 16 and another youth, Collins had broken into the home, stolen property from it and had vandalized it. During a re-enactment of the house-breaking in the presence of Sgt Wilson, the appellant who was then in an agitated state had said "If I catch you little pricks out on the street, I will kill you." Later, at the police station, the appellant remained agitated and was asked to go home. Despite that request he remained outside the police station and when the officers were leaving accompanied by the two boys, he approached them and asked Sgt Wills if he could have five minutes alone with them. The deceased and Collins were subsequently dealt with in the Children's Court.
The appellant in the intervening years expressed his anger at Celap two or three times to a neighbour, Mrs Venz. He repeated, "One day I will get him for it."
On 18 August 1997, the appellant and Celap were sitting next to each other at the Imperial Hotel in Yarraman. At about 7.00 pm, Celap ran out of money and said that he was going home. The appellant offered to buy him a beer which Celap accepted. The appellant continued purchasing beer until closing time at 9.00 pm when he and Celap left together.
Neighbours heard the arrival of the appellant's vehicle at his home at 9.10 pm. At 9.15 pm, they heard the sound of a "muffled thud", or a "bang" from the direction of the appellant's residence.
The appellant made an emergency telephone call from his residence at 9.26 pm. He spoke to Snr Const Barnes at the Dalby Police Station and told him, "I have just shot a person."
The neighbour, Mr Venz was woken by the appellant who was calling his name and knocking on the door. The appellant said to Mr Venz, "I've shot someone in my house." According to Mr Venz, the appellant said more than once that he was in "deep shit".
Mr Venz accompanied the appellant back to his house. He saw the deceased slumped in a chair. He said that the deceased had a beer bottle in his left hand. It was common ground between the Crown and the defence at the trial that the bottle was actually in his right hand.
Sgt Irwin and Snr Const Bindon who were stationed at the Yarraman Police Station went to the appellant's residence. They saw a large wound to the deceased's chest and on his left forearm. Snr Const Bindon noticed a trickle of blood on the appellant's forehead which had dripped down the middle of his nose. There were also droplets of blood on the appellant's shirt and on a tobacco packet in his pocket. Snr Const Bindon asked the appellant if it was his blood. He replied, "I don't know what you are talking about."
The appellant was conveyed by ambulance to the surgery of Dr Bruce Carr where he was examined. Dr Carr noticed a "central little puncture type of wound in the middle of his forehead", but was unable to comment on the depth of the wound because he could not explore it. He also noticed there was a scratch, two millimetres in length on his nose, and a linear abrasion of the posterior aspect of the right chest.
Following the medical examination, the appellant returned to his residence with the ambulance officer and Snr Const Bindon. The appellant said to the police officer then,

[75]

A pathologist described the injuries to the deceased's left upper forearm. He said they were consistent with a stretching out of the limb by the deceased at the time he was shot. There was a cluster of approximately 11 gunshot pellet entry wounds in the left chest. There were six exit wounds in the back of the body. The trajectory of the pellets was from left to right and slightly upwards.
The shotgun with which the deceased was shot was a very old weapon. When it was put to Sgt Graham in cross-examination that the weapon was "60, 70 or 80 years old", he said that he would not be surprised if that were the case. Sgt Graham said that because of a defect in the gun it was prone to "sympathetic discharge": that is, if both hammers were cocked and one barrel discharged, the recoil might cause the other barrel to discharge. On a "drop test" which involved the dropping of the firearm on to a rubber mat from a height of between 45 and 55 centimetres, it was not prone to discharge. A further test involved the striking of the weapon with a leather mallet. It was prone to discharge when it was so struck underneath or around the barrel.
The appellant gave evidence at his trial in relation to the break-in of his home in 1992. He said that when the youths were indicating to the police where they had been, Celap starting laughing at him. The appellant said that he had asked Celap if he thought it was funny, to which Celap had responded "Yeah". The appellant then asked if Celap wanted a "smack in the head" and Celap again replied "Yeah". The appellant said that Celap then turned to Sgt Wills and said "Old bastard, he's pissed". The appellant admitted that he had then asked the sergeant if he could have a few minutes alone with Celap.
The appellant's evidence continued, that on 18 August 1997, he arrived at the Imperial Hotel between 2.30 pm to 2.45 pm. Celap came to the hotel between 4.00 pm and 5.00 pm and sat on a stool beside him at the bar. At about 7.00 pm to 7.30 pm, the appellant said that he began to buy beer for Celap as the latter was "broke". They continued drinking together until closing time when they drove to the appellant's home a short distance away where they began to drink together in one of its rooms.
The appellant left the room. While he was out of it he could clearly hear Celap calling out that he (Celap) remembered the place, and that he was going to "bash" the appellant. The appellant said that he thought he had responded by saying, "I was shitty but I haven't got any drama now. I thought we'd fixed it up." To this Celap responded "I'm bigger now, c***. Get out here and have a go."
The appellant then went to his bedroom and took the shotgun from under the bed. Although he had purchased it in 1980/1981, he had never actually fired it.
The appellant said that the firearm was loaded but he was unable to say whether it was cocked. The appellant said that he walked up the hallway and into the room in which he had left Celap. Celap started to rise from his chair. He was turned to one side. Celap's arm shot out in a "backhand … throwing type of movement" and something struck the appellant's head. The appellant said that as Celap started to get up, he (the appellant) lifted the gun; it was at about waist height when the appellant was struck in the head and the gun discharged.
This account, it may be observed, does not sit comfortably with two other matters: the exit holes in the back of the deceased's body which were collinear with holes in the back of the chair in which the deceased had been sitting and from which the appellant claimed he had half-risen; and that the bottle of beer was undisturbed.
The appellant's explanation for taking up the gun was that it had been his belief that the sight of it would frighten Celap into leaving. He did however concede three matters: that he may have cocked the gun; that he may have intended to point it at Celap as it was when it discharged; and, that his finger would have been in the vicinity of the trigger guard, indeed, that it could well have been on the trigger at that time. The appellant denied that he had deliberately pulled the trigger but he could not explain why the gun discharged.
The appellant was charged with murder. He was tried in the Supreme Court of Queensland by Wilson J with a jury. The prosecutor, in his closing address submitted that the appellant's version of the facts was a "pack of lies" and that the appellant had lured Celap to his house and had deliberately set out to kill him. There was a discussion between counsel and her Honour before she summed up to the jury. During it, the Crown prosecutor conceded that a defence under s 23 was open. He referred her Honour to Guise[123]. Later the prosecutor said:

[109]

The appellant points out that only Latham CJ and Dixon J referred to s 23 of the Code in Mullen, and that the case was not argued as a substantive appeal in this Court. It is not therefore, the appellant submits, an authority which governs this appeal.
The appellant submits that the relevant "unwilled act" was the discharge of the shotgun, and that an event for the purposes of s 23(1)(b) of the Code would be a death or other consequence of an act, although the event might not itself have been intended, and may have occurred by accident[134]. So much may, in my opinion, be accepted. Indeed no complaint is made about the trial judge's remarks bearing upon s 23(1)(b) of the Code. The sole question on this aspect of the appeal is whether, having directed the jury of their need to be satisfied that the appellant intended to kill the deceased, there was any need at all to direct them that they should satisfy themselves that the discharge of the gun was not a willed act of the appellant.
In considering this question it is important to keep in mind that directions are formulated by trial judges to deal with the issues actually litigated at the trial. There is however, a qualification to this. It is that a trial judge in a criminal case is required to give directions as to any defence which arises on the evidence, and even one which may not have been the subject of a submission by either party.
There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter's acts in placing himself in such a position as to give the "act" the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the "act" itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident).
A defence under s 23(1)(a) does not depend upon proof of, or the possibility of automatism or the like. It is available if the prosecution is unable to prove that the act was not willed, whether the absence of will can be traced to a condition which can be satisfactorily described in medical or psychological terms, or whether it was simply an act neither impelled by the mind nor which the mind endorsed immediately before, or at the time of its occurrence. There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the "act" for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare. The jury in this case would not have been obliged so to regard this case.
Here the relevant act was, as the appellant submitted, identifiable, the discharge of the gun. Everything leading up to that point might have made it unlikely that it occurred as an unwilled act, but as there was evidence that it was, an obligation to give a direction about it by reference to s 23(1)(a) did arise.
This was so even though intention was "the issue" at the trial. The trial judge's attention should have been drawn to the need for such a direction accordingly. The submissions that were made on the relevance of s 23 did not assist her Honour in this respect. The direction should be given, even in a case in which the substantial issue is intention, in order to draw to the attention of the jury the matters which are capable of forming a foundation for a conclusion that the prosecution had not negatived an unwilled act or accident. The directions should identify the evidence from which the "act" and the event are discernible and distinguish between them. The fact that the Code makes specific provision for defences on these bases, independently of the creation of offences of which intention is a specific element, provides an indication that separate and specific treatment of matters capable of falling within s 23 is required. Section 23 is concerned with all offences, except for ones of negligence. It is hardly likely that it would have been enacted as part of the Code if reference to it were optional or unnecessary in the vast range of offences of which intent is an element.
Mullen's case does not provide an answer to the appellant's argument that a direction should have been given with respect to s 23(1)(a) of the Code. Only two of the Justices in that case expressed an opinion to a contrary effect. It was not a substantive appeal and the Court was dealing with a case in which the Court of Criminal Appeal of Queensland had already ordered a new trial.
I do not think that it is an answer to the appellant's submission to say that the jury must have found, by bringing in the verdict that they did, that the appellant intended to kill Mr Celap. A direction with respect to s 23(1)(a) was required to ensure that the jury focus their minds on the state of mind and actions of the appellant at the actual time of the "act", the discharge of the shotgun, but of course in the context of his antecedent acts.
For the reasons I have given, I am of the opinion that the verdict should be quashed and a retrial ordered. This is so despite the powerful objective indicators of will and intention, the non-disturbance of the bottle of beer and the correspondence between the exit wounds and holes in the chair, the long-standing animosity between the appellant and the deceased, and the inculpatory statements of the appellant to the investigating police officers. I still cannot conclude that the appellant has not lost the chance of an acquittal which might have been realized had appropriate directions been given.
I would allow the appeal, set aside the order of the Court of Appeal, quash the verdict and order a new trial.

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