Solicitors for appellant: Dixon Gallasch Pty Ltd

1. This is an appeal against a conviction for murder consequent upon the verdict of a jury.

1. I adopt the summary of the events in question to be found in the judgment of Matheson J, and I adopt also his summary of the manner in which counsel at the trial dealt with the case.

1. It is well established that a jury should not be told that it cannot acquit: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117 Barwick CJ, and 132-133 Menzies J, at 141 Owen J.

1. In the present case I consider that, undoubtedly as a result of the manner in which counsel for the defence conducted the case, the jury is likely to have thought that it was not open to acquit. In saying this I do not intend any criticism of counsel for the defence. There is no suggestion that he was not acting upon his client's instructions, and one can understand the tactical judgment which would have led him to conduct the case as he did. In those circumstances it was natural for the summing up to be constructed as it was, but as the decision in Pemble reminds us, the jury must be told of its entitlement to acquit and of the obligation to acquit if, at the end of the day, it is not satisfied beyond reasonable doubt of guilt.

1. The trial judge, of course, gave the jury the usual directions about proof beyond reasonable doubt in relation to the elements of murder and manslaughter. But, in my respectful opinion, the manner in which the summing up was presented probably conveyed to the jury the impression that an acquittal was not open to them and that they must convict either of murder or of manslaughter.

1. There is nothing to be gained by referring to the summing upin any detail. To my mind it conveys a clear impression that the real issue was whether the intent or state of mind necessary for murder had been proved beyond reasonable doubt. The implication was that if that were not the case, then the accused was guilty of manslaughter, having caused death by an act which the judge told the jury was a voluntary act and which the judge indicated was unlawful and dangerous. There could be no complaint about that if the jury understood that, nevertheless, at the end of the day it was for them to decide whether the accused was guilty of anything. But in this case I consider that the jury would not have realised that that course was open to them. I refer to the following passage from the summing up, which came towards the end, as an indication of the manner in which the matter was left to the jury: "Well, members of the jury, that takes me back to reminding you that perhaps the most important question in this case is whether or not the accused formed an intention to kill or cause grievous bodily harm to the deceased or at least intentionally committed a fatal act knowing that he had the knife in his hand when striking at the deceased.

If you had a reasonable doubt about these special states of mind, particularly given the evidence about the presence of drugs in the bloodstream of the accused, a verdict of murder could not be returned. A verdict of manslaughter could if you, the jury, were satisfied that the deceased died as a result of a conscious and voluntary act of the accused which was unlawful and dangerous.

'Unlawful' means forbidden by law and without lawful excuse. There is no lawful excuse in this case. An act is dangerous, for this purpose, if a reasonable person in the accused's position would have realised that his actions would have exposed the deceased to an appreciable risk of serious injury.

The acts of the accused in this case would obviously be unlawful and dangerous if the only doubt you had on the evidence related to the particular states of mind required for the crime of murder. In those circumstances manslaughter would be made out, though murder not, because of the absence of proof of the state of mind required to prove murder."

If this were the only defect in the summing up it would be necessary to consider whether this is a case for the application of the proviso. I doubt whether it is, but it is not necessary to make a decision on that.

1. The defence case at trial was that the accused did not realise or remember, when the fatal blow was struck, that he had a knife in his hand. The effect of the defence case was that the accused thought that he was simply striking a blow with his fist.

1. The case was presented to the jury on the basis that it could convict only if satisfied that, when the fatal blow was struck, the accused intended to kill the deceased, or to cause him grievous bodily harm, or if the prosecution proved that the accused struck the fatal blow knowing that it would probably cause death or grievous bodily harm. His Honour directed the jury clearly and carefully on this aspect of the mental element which had to be proved.

2. At a practical level the prosecution case on the murder charge depended upon the jury being satisfied, beyond reasonable doubt, that the accused knew that the knife was in his hand when the blow was struck.

3. That, however, was not the end of the matter. From a practical point of view, the prosecution could not obtain a conviction for murder unless the jury was satisfied that the accused knew the knife was in his hand, but the jury's satisfaction on that point did not lead inevitably to a conviction for murder. It was necessary, indeed essential as a matter of law, for the jury to give separate consideration to the question of whether the accused did have the necessary intent when the blow was struck, even if he knew that the knife was in his hand. This was an important matter having regard to the nature of the incident and having regard to the evidence that the accused might have been affected by drugs which he had taken.

3. In my opinion, with all respect to His Honour, the summing up did not draw that important distinction. It focused largely on the intent to kill, the intent to cause grievous bodily harm and the striking of the blow knowing that death or grievous bodily harm would probably result. That, in itself, was not erroneous. The difficulty lies in the failure to distinguish between knowledge that the knife was in his hand and the specific mental states that had to be proved.

4. There was a danger, having regard to the manner in which the trial was conducted, of the jury thinking that the crucial issue was knowledge that the knife was in the hand of the accused. This danger was compounded by an exchange which occurred when His Honour redirected the jury on the elements of the offence of murder and of manslaughter by unlawful and dangerous act. His Honour repeated to the jury the three states of mind which would support a conviction for murder. They were an intent to kill, an intent to cause grievous bodily harm and voluntarily and unlawfully killing, knowing that death or grievous bodily harm would probably be caused to the deceased.

5. His Honour then invited counsel to comment on that. Counsel for the accused then said: "Whichever one of the three it is, the jury have to find beyond reasonable doubt he knew, he had to know, and knew, in the case of the third element, recklessness, that probably serious harm was going to occur to the deceased. It comes back to the issue of whether the jury is satisfied beyond reasonable doubt he knew that he had the knife."

6. The prosecutor said that he agreed with that, and the judge appears to have done the same.

It seems to me that this exchange gave rise to an unacceptable risk of the jury having thought that it was sufficient for it to convict of murder that it be satisfied that the accused knew that he had the knife in his hand, and so gave rise to an unacceptable risk of the jury thinking that the existence of the necessary mental element flowed as a matter of course from that.

This was an unfortunate exchange, but understandable, having regard to the manner in which the case had been conducted. But, coming when it did, it seems to me that there was a real risk of it having misled the jury.

I also agree with Matheson J that there is a similar difficulty in relation to the directions relating to intoxication. His Honour gave careful directions to the jury about the relevance of intoxication to the existence of an intention to kill or to cause grievous bodily harm, to the possibility of confusion on the part of the accused, to any apparent lack of memory and to the beliefs that would have been formed or held by the accused at the time of the incident. However, His Honour did not relate those directions closely to the facts of the case. Granted, he told the jury, in plain terms, that intoxication was relevant to those matters. But he did not relate what he said about intoxication to the particular facts of the incident which led to the death of the deceased, nor did he distinguish between the relevance of intoxication to knowledge that the knife was in the hand of the accused and to the specific mental states, including foresight of the consequences of the act, relevant to proof of murder. It was necessary for intoxication to be considered separately in relation to each.

This court has, on a number of occasions, emphasised the importance of giving practical guidance to the jury by relating the effects of intoxication to the circumstances of the particular case presented to the jury. Matheson J has referred to several of the cases in which this court has made this point, and it is unnecessary for me to repeat what is said in them.

I agree with Matheson J that in this case more was required here for the adequate presentation of the defence case. I consider that it was particularly important to distinguish between the relevance of intoxication to the deceased's awareness that the knife was in his hand, on the one hand, and to the specific mental states which had to be proved on the other. I likewise consider that it was particularly important to remind the jury of the importance of considering the significance of the intoxication in relation to the accused having foreseen the probable consequences of his blow with knife in hand, if that was the path which the jury was to follow in convicting the accused. The jury might have been inclined to dismiss the claim by the accused that he did not realise that the knife was in his hand, but it was important to point out to them that even if that claim were dismissed, separate consideration had to be given to the effect of drugs in relation to the mental elements which had to be considered separately. For those reasons I consider that the jury was not given satisfactory guidance in relation to the case on murder, and that there is a risk which cannot be discounted of the jury having been misled in its consideration of this aspect of the case.

Counsel for the appellant also argued that His Honour erred in directing the jury, acting upon a concession by counsel for the accused, that the relevant act was voluntary. She argued that the relevant act was not the mere striking of a blow with the fist, but the striking of a blow, knife in hand. She argued that it could be said that that act, the fatal act, was done voluntarily only if the accused knew that the knife was in his hand. Upon that basis she argued that to direct the jury that the act was done voluntarily was a misdirection, because such a direction necessarily assumed one of the central issues in the trial, the awareness by the accused that the knife was in his hand. In putting this submission she relied upon The Queen v Falconer [1990] HCA 49; (1991) 171 CLR 30. I accept that there are passages to be found in the joint judgment of Mason CJ, Brennan and McHugh JJ in The Queen v Falconer (supra) which support that submission. I refer in particular to the passages set out in the judgment of Matheson J. I agree also that the decision of the Court of Criminal Appeal of Western Australia in Duffy v The Queen [1981] WAR 72 supports the submission. Support for the submission is also to be found in remarks by Barwick CJ in Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205.

However, it is not clear that all members of the High Court in Falconer took the same view as was taken by the three members of the Court already referred to. It was not necessary for all members of the Court to pass upon the point. There are also to be found passages in the judgments of other members of the Court which might support a narrow view of the conduct which must be identified as voluntary. I refer in particular to Deane J at 62, Toohey J at 76-77 and Gaudron J at 81. Moreover, support can be found in the authorities for the view that the requirement for a voluntary act is satisfied if it is established that what the accused did was the exercise of a conscious power of choice, and that it is not necessary that the accused knew or understood what was being done. To be specific, on that approach it was sufficient, in the present case, that the accused made a conscious choice to strike the deceased. That act was clearly a voluntary act. On the narrow view it is not necessary to show, for the purposes of establishing a voluntary act, that the accused then knew that he had a knife in his hand.

This difference of opinion has conveniently been referred to as the difference between the wide view and the narrow view in determining what constitutes the act that must be done voluntarily, and which, if not done voluntarily, cannot support a conviction. In my respectful opinion there is much to be said in support of the view expressed by Walsh J on this point, when in Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 he said, having referred to the contending views, (at 220): "In my opinion, it is not necessary in every case to apply section 23 [the Code provision then under consideration in relation to voluntariness] in accordance with a rigid formula which accords with one or other of the two views described above. In the present case I do not find it necessary to make a definite choice between those two opposing views. I agree with respect with the opinion stated by Lucas J in the present case that none of the decisions requires the adoption in every case of either the one view or the other, that each case presents a different problem, and that it is impossible to say that 'the wide view' or 'the narrow' must be taken in every case."

This is an area in which caution is required. In my opinion the law is not clearly settled. Nor did the Court have the benefit of a full review of the relevant authorities.

In my opinion, the better view in this particular case is that to secure a conviction for murder the prosecution had to prove that the accused voluntarily struck the deceased with a knife. In other words, to prove that the striking of a blow with the knife was a conscious act and a deliberate act, and that necessarily means that the prosecution had to prove that the accused knew that he had the knife in his hand. In the words of the joint judgment of Mason CJ, Brennan and McHugh JJ in The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 40, the prosecution had to prove that the accused made a conscious choice to do an act of the kind done. There is such a difference between the striking of a blow with a fist and the striking of a blow, knife in hand, that in my opinion it was necessary for the distinction to be drawn and for the prosecution to prove that the accused made a conscious choice to strike a blow knowing that he had the knife in his hand.

I think it likely that only in rare cases will the precise identification of the act which must be shown to be voluntary give rise to difficulty. However, I consider that the better view is, as I have already said, that the accused must be shown to have made a conscious choice to perform an act of the kind done, and that in a case such as the present there is a significant difference between a punch and striking with a knife, and that it cannot be said that to prove a conscious choice to punch is to prove an act of the kind in fact done.

The result of that in the present case is that the jury had to be satisfied beyond reasonable doubt, before it could convict of murder, that the accused made a conscious choice to strike the deceased knowing that he had a knife in his hand.

As long as the jury was told that it could not convict unless satisfied that the accused knew that he had the knife in his hand, and unless satisfied of the specific mental elements required in addition to that, the jury would have received the necessary instruction on this aspect of the case. From a practical point of view, whatever the legal theory may be, the prosecution had to prove that the accused knew he had the knife in his hand, and this was not a case in which there was any scope for an argument to the contrary. Accordingly, as it seems to me, the practical aspect of the case produces the same result as one reaches by applying the dicta in The Queen v Falconer (supra) as I have done.

As to the direction which His Honour gave, I do not consider that it would necessarily have misled the jury. In context I am satisfied that the jury would have understood it to mean no more than that it was common ground that the accused voluntarily and deliberately and intentionally struck the deceased a blow. I am equally satisfied that the jury would have understood that whether the accused knew that he had the knife in his hand at the time was a matter in contention. The problems with the summing up arise not from what His Honour said in relation to voluntariness, but from the failure to direct the jury more closely on the application of the law to the facts to the case.

I have already set out a passage from the summing up which crystallises His Honour's approach to manslaughter. This passage would have conveyed to the jury the impression that, in relation to manslaughter, the relevant act was voluntary, was obviously unlawful and dangerous, and therefore that the accused was guilty of manslaughter if the intent necessary for murder had not been established.

But what is the position if the jury was not satisfied beyond reasonable doubt that the accused knew that he had the knife in his hand? It is clear from Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 that the question of whether the relevant act carried with it an appreciable risk of serious injury to the deceased is to be assessed from the standpoint of a reasonable person. But, in the circumstances under consideration, is the act to be considered the mere striking of a blow or the striking of a blow knife in hand? There was no doubt that when the accused struck the deceased the knife was in his hand. But if the jury was not satisfied that he knew this, was the risk of serious injury to be determined on the basis that the knife was in his hand nevertheless? As far as I can tell the case law is silent on the point. This issue brings one back to the implications of the decision of the High Court in The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30. I can find nothing in Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 which bears directly upon the point.

The approach which the trial judge took implicitly assumes that it is not necessary to prove, for the purposes of manslaughter, that the accused was aware that the knife was in his hand. Some support for that approach is to be found in Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107: see Barwick CJ at 122-123, Menzies J at 133.

Once again, the Court did not have the benefit of a comprehensive review of the authorities on this point. But as, in my opinion, a retrial should be ordered, it is necessary to express a view on the point.

It is, of course, a fundamental principle of the criminal law that generally there is criminal responsibility only for conduct that is voluntary, that is the result of an exercise of the will: Kroon v The Queen (1990) 55 SASR 476 at 479 King CJ.

That principle, to which I have already referred, would suggest that the accused could be guilty of manslaughter by the commission of an unlawful and dangerous act only if he voluntarily, that is by conscious choice, committed the act which was found by the jury to be unlawful, dangerous, and to be one that exposed the victim to an appreciable risk of serious injury. However, for the purposes of this offence, is the relevant act the striking of a blow knowing that the knife is in the hand, or the mere striking of the blow?

When one bears in mind that it is for the jury to determine, by reference to a reasonable person in the position of the accused, whether the accused knew that he was exposing the victim to an appreciable risk of serious injury, it seems to me to follow that the act which the jury assesses must be the act which in fact occurred and which caused the death. The fact that the unlawful and dangerous quality of the act is to be determined by the jury means that it is not essential, to secure a conviction, that the accused be shown to have known that the act was unlawful and dangerous. All that has to be shown is that the accused performed a voluntary act which was in fact unlawful and dangerous in the relevant sense.

To my mind, it follows from what I have said in relation to the direction about murder, that the act which must be shown to have been voluntary is the act of striking, knife in hand. That is the act that caused death. A different approach to the identification of the relevant act for the charge of murder and the alternative charge of manslaughter cannot be supported. In each case the prosecution must prove that there was "a consciousness in the actor of the nature of the act and a choice to do an act of that nature"; Falconer v The Queen [1990] HCA 49; (1990) 171 CLR 30 at 38 Mason CJ, Brennan and McHugh JJ.

It follows, in my opinion, that the jury must be instructed that they cannot convict of manslaughter unless satisfied that the act which causes death is voluntary, and that in turn requires that the accused know that he has a knife in hand, because otherwise he will not be conscious of the nature of the act.

Despite, and indeed contrary to, the concession by counsel for the defence, the trial judge should have instructed the jury along these lines. The failure to direct them that the accused committed the act causing death voluntarily only if aware of the nature of the act was an error.

If not satisfied that that act was voluntary, the jury could not convict the appellant of manslaughter. That would follow because the act which caused death was not voluntary. I do not consider that, in the alternative, the jury should be instructed to consider manslaughter on the basis of a mere punch. The act which caused death was not a mere punch. There is no basis for instructing the jury to consider whether a bare punch, an act which did not occur, carried with it an appreciable risk of serious injury to the deceased.

To some this result may seem curious, and perhaps unsatisfactory. But in my opinion it follows from the conclusion that, in this case, the act which caused death and which must be shown to have been voluntary, is the striking knife in hand.

I agree with Matheson J that, in the circumstances of this case, it was neither necessary or appropriate for His Honour to leave self defence to the jury. In his evidence in chief the accused said: "He just approached and grabbed me and that startled me more than

anything, you know, I - he tried to drag me. I stood firm in the sense that I had basically one foot further in front than the other with, you know, at all the time he didn't let go and he was pulling me and I was resisting so we were virtually pulling each other and he was still saying 'Well, you're coming with me', you know, and just instinctively I reacted and at that time it was - I punched him, like upper cuts."

In cross examination he said: "Q But effectively he was holding you, it was a restraint more than an attack, wasn't it

A I have always said that it wasn't an attack. The man grabbed me. I was surprised from the start, him grabbing me didn't make any difference. I was a bit how [sic] he was thumping me around, but I wouldn't say that he attacked me."

In my opinion it could not be said that the issue of self defence arose in the face of evidence like that.

I would reject the other complaints made about the summing up.

In my opinion the conviction should be set aside and a retrial should be ordered.

The appellant was convicted by a verdict of a jury of the murder of Michael Joseph Heinrich in the front of the latter's house at 13 Robe Street, Evanston Gardens on 13 May 1996 at about 4 am. The deceased died from a knife wound to his heart. The appellant admitted that he caused the deceased's death, as well as three other relatively superficial wounds to the deceased's upper left arm, left elbow and left armpit, and that they were caused by a knife that he had in his hand. However, he said that at the relevant time he was under the influence of the drug Serepax, which had been prescribed for him for the emotional stress that he was suffering from as a result of the break-up of his de facto marriage. He gave evidence that because of his condition he was unaware that he had the knife in his hand at the time of the fatal blow.

Before counsel addressed the jury, his Honour discussed with them what directions he should give to the jury. Counsel who then appeared for the appellant said: "I will be telling the jury first and foremost that the accused admits he is guilty of manslaughter, and that really that will have to be their verdict on the evidence.

The defence is not going to rely upon self-defence and I think on the evidence it is not open to them."

He said that the defence was that the appellant did not have any intent to kill or do any grievous bodily harm, and added: "I don't really want to shift too much away from that in the course of my presentation."

The exchange between his Honour and counsel continued as follows: "HIS HONOUR: Are you conceding that the first ingredient for murder is not an issue in this case? The conscious and voluntary or deliberate act, I will call the Falconer proposition stays there and calls for an evidential onus which you have obviously not sought to discharge.

HIS HONOUR: The prosecution must negative accident and I am not sure whether or not you are wanting to have the jury consider that this was, in the relevant sense, accidental.

DEFENCE COUNSEL: I don't think it could be said to be in the relevant sense accidental.

HIS HONOUR: I don't know. I am just making sure that we are on common ground about that. And Mr Rofe has made his position clear, I just want to be sure you are not saying, where I have to say, for example, as would be the case in the discharge of a rifle, it went off by accident. We have to exclude that as a reasonable possibility. Here is someone saying he just forgot he had the knife in his hand, and wasn't intending that which happened, even though, viewed objectively, it was an unlawful and dangerous act and should attract, as you are to put to the jury, a verdict of guilty of manslaughter.

DEFENCE COUNSEL: In answer to your Honour's question, I don't think it is an issue on the first element �

DEFENCE COUNSEL: On intoxication � when you deal with the ingestion of Serepax, in my submission, you should tell them that is something, a circumstantial fact they take into account in assessing his claim of confusion that night and the effect of that upon the formation of the requisite specific intent, in basically lay language, that's my submission on that �"

Early in his address to the jury, defence counsel said: "�the law makes it pretty clear that when you kill someone as a result of an unlawful and dangerous act - as happened in this case - then clearly, without doubt, you're guilty of manslaughter. This accused makes no bones about it. He recognises he's guilty of the very serious crime of manslaughter for which he will be dealt with."

He concluded his address with these remarks: "Ladies and gentlemen, the defence case is exactly the same as at the beginning, as it was during the whole of the case, as it is right now, and as it will be when the learned trial judge finishes his summing up, the accused says he makes a full admission to you of his guilt of manslaughter of what he did that night, told you why he did it. He said 'I am entitled to have the people of the community judge me, you are the people, no-one else, the people judge me when I say that at that critical time I had no intention to kill Mr Heinrich or do him grievous bodily harm' and if that's a reasonable possibility, then your duty would be to acquit him on that charge and convict him on the serious charge of manslaughter."

Mrs Marie Shaw appeared as counsel for the appellant on the appeal. She argued that the concessions made by the defence counsel at the trial should not have been made, and that notwithstanding those concessions, the trial Judge, inter alia, should not have withdrawn the issue of voluntariness from the jury, that he should have identified and distinguished between the nature of the act causing death, namely a stabbing with a knife, and the nature of the act which the appellant was aware of having performed, namely punching during the course of a struggle, that he should have given a much fuller direction on intoxication, and that he should have directed the jury on self- defence.

My first reaction to the appeal was, I am bound to say, one of indignation. It appeared wrong to me that different counsel should now argue grounds of appeal which, if successful, could have resulted in a complete acquittal, when at the trial the appellant's counsel conceded that he was guilty of manslaughter, presumably on his instructions. It was not merely the kind of case where, for example, a defence should have been left which counsel had not asked the trial Judge to leave. It was a case where experienced defence counsel had conceded to his Honour, and twice to the jury, that the appellant was actually guilty of manslaughter. However, a careful consideration of the case of Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 followed by a re-reading of the summing up, has ultimately persuaded me that there is substance in the appeal.

Pemble was convicted of murder by shooting, and there was, to quote Barwick CJ at p111: "� adequate evidence upon which the jury could find the appellant shot the deceased with intent to kill her or at the very least to do her grievous bodily harm."

"In his final address to the jury, counsel for the appellant said that this was his last chance to try to convince the jury that 'the just verdict which you should bring in is not one of guilty of murder but one of guilty of manslaughter'. This theme counsel reiterated from time to time. On one such occasion he said: 'I am not asking you to let the accused go free, because he realizes he has caused the death of someone: he realizes that he has committed an illegality in so doing. What he says is "I didn't murder her".' Finally he said: 'So let us be perfectly clear we are not asking you to set him free; we are asking you to find him not guilty of murder but guilty of the lesser crime of manslaughter.'"

In the course of his summing up the trial Judge had said: "It is a matter for you to decide whether you think the accused is guilty of murder, or something less."

At p117, Barwick CJ said: "But in the passages I have quoted from the summing up it might be thought that the trial judge had told the jury that the only verdict which they could return was that of murder or manslaughter.

If that were the right conclusion, the charge would have been fundamentally in error. But, in the context of this trial, I think it can be said that the jury would not have taken from the words used, a direction that they could not acquit for want of satisfaction of the Crown case. The language of the summing up in this respect was incautious, but in my opinion the conviction should not be set aside because of its use.

I am of opinion that the defence actually made by the appellant was put by the judge to the jury, though without much assistance in their consideration of the facts. But, there remains for consideration, in my opinion, four very important aspects of the summing up. First, there is the question whether the direction given as to what some have called murder by recklessness was adequate. Second, there is the question whether the summing up as to manslaughter was adequate. Third, there is the question whether a finding of accidental death and a consequential acquittal was possible and whether a direction in that connexion was required and fourthly, there is the question whether the course of the trial rendered any of these directions unnecessary.

I shall deal with the fourth of those matters first. There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v. Director of Public Prosecutions [1942] AC 1, following Lord Reading's judgment in R. v. Hopper [1915] 2 KB 431, and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King [1946] AC 83). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

In Mancini v. Director of Public Prosecutions (supra) provocation was not relied upon by defending counsel. In Kwaku Mensah v. The King (supra), provocation was not raised at the trial nor in the reasons in the appellant's case for the consideration of the Privy Council. But, there being material before the jury on which they could properly have found provocation so as to reduce the crime from murder to manslaughter, their Lordships considered the absence of any direction as to provocation when that matter was raised by counsel in argument before them for the first time; and for lack of appropriate direction set aside a conviction for murder.

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise."

His Honour then considered each of the other three "very important aspects of the summing up". He upheld the first of them, namely that the direction given as to what some have called murder by recklessness was inadequate. McTiernan and Windeyer JJ substantially agreed with the judgment of the Chief Justice. All of the five judges constituting the court were in favour of allowing the appeal and setting aside the conviction, but the last three mentioned judges substituted a verdict of manslaughter.

At pp132-133, Menzies J said: "As I have said, counsel for the accused invited the jury more than once to convict him of manslaughter. In these circumstances there is a natural and strong tendency not to impute error to the judge when he said the matter for the jury to decide was whether the accused was guilty of murder or something less. Nevertheless I consider that even in the circumstances of this case this was a misdirection. The starting point is that once there is a plea of not guilty, the Crown must prove every element of any crime covered by the indictment before the jury can convict. Furthermore it is always in the power of a jury to acquit and that power cannot be denied: Gammage v. The Queen [1969] HCA 68; (1969) 122 CLR 444. Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge as counsel for the defence rightly told the jury."

Menzies J would have ordered a new trial. At p137, he said, inter alia: "The grounds of my dissent from the order proposed, however, go even more deeply into what I regard as principles fundamental to the administration of criminal justice. The accused pleaded not guilty, thus putting everything in issue. The learned trial judge told the jury that the matter for them was 'to decide whether you think this accused is guilty of murder, or something less'. This instruction, although it may perhaps be explained as not meaning what it says, cannot be justified as a direction of law. To this matter I have made reference earlier and I do not propose to repeat what I then said. The point, which I wish to make now, is that this Court, in deciding as a matter of law, that a properly instructed jury could not, in good conscience, acquit the accused of any crime but must convict of murder or manslaughter, is adopting the learned trial judge's direction. It would be going beyond my purpose to discuss the different reasons advanced for this adoption. From what I have said it is obvious that I disagree with them. I say no more than that, however strong may be the evidence for a conviction, it is neither for a presiding judge at a trial, nor for this Court upon appeal, to decide that a jury must convict of one offence or another."

At p 139, Windeyer J said: "Of course this appeal cannot depend upon the form which advocacy took or upon the issue counsel presented to the jury. The issue for the jury was whether the accused was guilty or not."

It is not entirely clear what order Owen J favoured other than one allowing the appeal, but at p141 he said:"� despite the course taken by the solicitor for the appellant, I am of opinion that the learned trial judge fell into error in telling the jury, as in effect he did, that the case was one either of murder or of manslaughter."

It is convenient for me to refer to the fact that at no stage did the trial Judge here tell the jury even that it was at least technically open to them to find the appellant not guilty of anything. In his opening remarks he said:"� you alone are the judges of the facts, including the ultimate question as to whether the accused has been proved guilty as charged, or guilty of the lesser and alternative crime of manslaughter."

It is true that he then gave the usual direction about the presumption of innocence, and a little later he said: "It is the law that if, in a case, you are left with a reasonable doubt about an accused's guilt of a particular charge, you must

give the benefit of that doubt to him and return a verdict of not guilty on that particular charge. Of course, if a charge is proved beyond reasonable doubt, it is essential that a jury says so, however unpleasant the performance of that duty might be."

However, in summing up, once at p100 of the appeal book, and again at p109, his Honour said: "The acts of the accused in this case would obviously be unlawful and dangerous if the only doubt you had on the evidence related to the particular state of mind required for the crime of murder."

If the only point in the appeal was that his Honour did not tell the jury that a complete acquittal was open to them, I may have been disposed to say that it was appropriate to apply the proviso, but regrettably it is not the only point.

It is necessary to look closely at the evidence, and in particular at the evidence bearing on the appellant's drug consumption and the effects thereof on his obviously distressed state.

For about eighteen months prior to 13 May the appellant had lived in a de facto relationship with a woman. The relationship gradually broke down, and she left him on Thursday 11 May. In consequence, he was very emotional and upset. That night he shared a carton of stubbies with a friend, drank some port and smoked some cannabis. On 12 May at about 1.30 pm he consulted Dr J I Wildsmith in Gawler who said in his statement that the appellant was emotional, and that he started crying. Dr Wildsmith prescribed 30 mg Oxazepam (Serepax) tablets for anxiety and tension. He wrote a prescription, and in addition supplied him with half a dozen of the tablets to try and settle him for the weekend. He told him to take a tablet at bedtime and if he did not sleep to take a second one in an hour. The appellant visited a friend, Ms Kathleen Duroux, that evening at about 7.30 pm and stayed there until about 10.30. She said he drank a stubby of beer and that he had about five or six of the tablets. He dropped one which Ms Duroux gave to her mother. The appellant kept asking for it. Eventually she handed him the tablet and said "Don't blame me if you wake up dead in the morning". When he left she noticed that his walk was very wobbly. He came back to her house at 1 am, and banged on her bedroom window. I observe parenthetically that if Ms Duroux was reliable and accurate in her evidence, the appellant could not possibly then have contemplated causing the death of the deceased. Ms Duroux said that he asked her if she would be his alibi, and that he said "it hasn't happened yet but it's going to happen". She said that she did not know what he was talking about. She told him to go home. The appellant said in evidence that he had not eaten since the Tuesday.

Mr Lloyd Wegner lived at 11 Robe Street, Evanston Gardens between the house in which the appellant was living and the house in which the deceased was living with his family. He had only spoken to the appellant once or twice. He was awakened at about 11.58 pm on 12 May. He heard scratching noises in his drive and some automatic lights came on in front of his house. He went out to investigate, switching on the carport lights on the way out. He noticed that the side window of his Holden panel van had been removed and the appellant was in the vehicle "scratching around". Mr Wegner tried to keep him in the vehicle, and blew the horn to attract attention. The appellant eventually got out through the rear window. He told Wegner he was sick. Mr Wegner said his words were very slurred, and he was swaying around. He rang the police and a uniform patrol attended at 12.45 am. They found the window that had been removed from the van and a knife. They arrested the appellant and took him to the Elizabeth Police Station. Senior Constable Dicker noticed that the appellant's speech was slow and some of his words were muddled. He believed he was at "the lower end of" moderately affected.

At the Elizabeth Police Station the appellant was charged with illegal interference with a motor vehicle by Sergeant Feckner. He was released on bail at 1.45 am. Sergeant Feckner thought the appellant was completely sober when he was bailed out at 1.47 am, but he did not observe him for any length of time, and a video recording about the same time showed some unsteadiness when the appellant was putting on a shoe. When he was asked for his address, he gave his occupation.

The next witness was Mr R W Tootell, a security guard employed at the Elizabeth City Centre. He saw the appellant kicking one of the doors of a building named Elizabeth House about 2 am. When approached, the appellant said he was trying to get rid of his frustrations. He said he was looking for his wife and looking for the way home. Tootell asked the appellant to remain while he rang the Elizabeth Police Station. The police told Tootell that if he had a problem to call a mobile patrol. Tootell asked the appellant to leave the premises. He said he was walking slowly, and then fast, and then slowly. His walk was uneven. He was mumbling a lot. He thought that perhaps he may have been under the influence of something. The appellant did not appear to want to leave, and sat in the gutter in the car park. Tootell rang a mobile patrol. A patrol car came and put the appellant in the car. It was Constable Newett who was in the mobile patrol vehicle. The appellant told him that he had no money and no way to get home. He formed the opinion that the appellant was moderately to grossly affected by liquor or drugs or both. He had slurred speech. He was of dishevelled appearance. He was unsteady on his feet. His eyes were glassy. In the course of the journey to the appellant's house he gave the police a number of directions without difficulty. The appellant was dropped at home at about 3 am.

At about 4 am, Mrs Heinrich, the wife of the deceased, said that she heard noises in their driveway. Mr Heinrich went outside wearing only his jeans. She heard her husband say "What the fuck are you doing here? Who are you?" The appellant replied "I'm just a stranger" to which her husband replied "Get off my property". A scuffle then ensued. When Mrs Heinrich saw through the screen door that her husband was bleeding, she became terrified and called the police. Mr Heinrich collapsed and died on the front lawn. When the police arrived they noticed that both cars in the Heinrich garage had doors ajar.

Detective Bierman said that at 6 am the appellant was drowsy.

Dr James was called by the prosecution and gave evidence about the effects of alcohol, Serepax, cannabis and stress. He said that, as with alcohol, the effects of Serepax depend very much on whether the user is used to the drug. He made some calculations as to the concentration of Serepax in the accused at the relevant time, and said that with such concentration a person was likely to appear as though he was intoxicated. He said "they would be able to talk, but they might appear confused and perhaps a little disorientated". He said that an unsteadiness or difficulty maintaining balance could occur, and speech could be slurred. He said that Serepax and alcohol should not be taken together.

In cross examination, he said that drugs can cause confusion and release inhibitions, and added "if the person is already under stress, the effects may not be as predictable as my earlier comment suggested". He said he could not comment on the likely effects of mixing alcohol, cannabis, Serepax and adding the effect of stress. He said "collectively they will be quite unpredictable. If you add a background of existing stress, I don't think I can usefully comment on what might happen". In his address to the jury, the Director of Public Prosecutions said that the jury would probably conclude that the appellant was affected "to some degree", and in his address in this court, he conceded that the appellant was "obviously a person in mental turmoil".

After he got home the second time, the appellant said he went looking for his knife in the front yard of Mr Wegner's house. He said he was still very upset. He sat in the gutter in front of Mr Wegner's house. He was thinking of his wife and he had in mind to see a friend so that he could borrow his car. He remembers noticing that Mr Heinrich's white utility was not parked out in the street as it usually was. The next thing he remembered was that he was in the Heinrich shed sitting in the passenger side of the utility. He had a knife in his hand. He said he must have snapped out of it and realised he could not steal a car, and he got out of the car and walked towards the gates. The light came on and startled him. The deceased came out and said things like "Who the fuck are you? What are you doing on my property?" The deceased grabbed him on the shoulder by the collar with his right arm. He was hitting him around the ear "like he was not impressed". He spoke to some one in the house who the appellant presumed was his wife. The appellant said he was spinning out. He said the deceased said to him "You're coming with me". He said that the deceased startled him more than anything. The deceased was pulling him. He was resisting and he instinctively reacted and punched him with his right hand. He was not aware that he had anything in his hands. He called them upper cuts. He said he felt like a couple of them missed, but with the last one he felt a thud. He said he was confused, hyped up, "not a full quid", and he was "in another world". He ran across the lawn. When the light came on he did not know if he was Arthur or Martha. A dog was barking. He said he was not aware at the time that he had anything in his hands. He said he ran home and into the kitchen by the back door. He was panic stricken and confused. He noticed then that he had the knife in his hand. There was a smear of blood on it and he said he just freaked out. He threw the knife into the sink. He said that later he went into the back yard and buried the knife. He said he was still stumbling and did not have a grip on reality. He said that he then took his clothes off, and had a shower. He said that he was still affected - "You know, by sort of drugs and that". He said he was not aware of what actually happened. He asked Detective Williams "How did he die?".

At the trial, both counsel agreed - in the presence of the jury - that the critical issue for the jury was whether they were satisfied beyond reasonable doubt that the appellant knew he had a knife in his hand at the time he punched the deceased. Nevertheless, Mrs Shaw complained that his Honour effectively withdrew the issue of voluntariness from the jury and that notwithstanding the attitude of counsel then appearing for the appellant, his Honour should not have done so. She referred to Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47. The facts there were that the accused had an argument with his wife in darkness outside his house. He decided to chastise his wife. He picked up a stick and aimed a blow at her. The blow, which was of moderate force, struck their baby being carried in the wife's arms and caused its death. The accused could not see in the darkness, did not know of and had no reason to suspect the child's presence. He was convicted of manslaughter. At p53, Barwick CJ said in connection with the relevant section of the Queensland Criminal Code

"�the exercise of will involves the making of a choice to do that
which the physical activity of the applicant in fact

does: for example, in this case to land the blow on the head of the child."

At p54, his Honour said - "That the applicant's will went with the wielding of the stick is beyond question. That he did not will or choose thereby to strike his infant son is equally beyond question� With every respect to those who may think otherwise, I have come to the conclusion that the relevant act in this case was the striking of the child on the head; that it was not an exercise of the will of the applicant, was not his willed act: and from the point of view of criminal responsibility not his act at all."

All Judges decided that the appeal should be allowed and the conviction for manslaughter quashed. McTiernan J in effect agreed with the judgment of Barwick CJ, whereas Kitto, Menzies, and Owen JJ were of the view that the child's death from being struck on the head with the stick was an event which occurred by accident.

Mrs Shaw also relied on The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30. Mrs Falconer gave evidence of the deceased's violence to her during their marriage, of her discovery that he had sexually interfered with her daughters, and of their separation. She said that on the day of his death the deceased had entered her house unexpectedly, had sexually assaulted her and had reached out as if to grab her by the hair. From that point she remembered nothing until she found herself on the floor with a gun beside her and the deceased dead on the floor.

The Court was concerned with s23 of the Western Australian Code, the relevant part of which read: "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

At p38 in their joint judgment, Mason CJ, Brennan and McHugh JJ said - "In wilful murder, the offender must have a specific intention to cause the death of the deceased or some other person at the time when he does the act which causes the death; death is not the "act" but the intended consequence. It follows that, under the

Code, as under the common law, it is the death-causing act which must be willed, not the death itself."

At p39 their Honours said -"The notion of 'will' imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature."

At p40 their Honours said: "The requirement of a willed act imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done."

Another case very much in point is Duffy v R (1981) WAR 72, which was not, unfortunately, cited in Falconer's case, as it also involves s23 of the Code. The facts were that the appellant was convicted on a charge of wounding. The prosecution case, briefly stated, was that he had swung his right hand in which he was holding a partly filled glass of beer into the left side of the victim's face causing four cuts with the glass which had shattered. The defence was that the accused had been acting in self defence and that his act had been accidental. When he had put his hand up he had not known it held glass. All three judges allowed the appeal and ordered a new trial, but the relevance of the case here is the observations of Wallace and Jones JJ on the first limb of s23 of the Criminal Code (WA).

I refer in particular to the judgments of Wallace and Jones JJ on the words that I have underlined (supra). At p80 Wallace J said: "In my opinion the first limb of s23 of the Criminal Code [which I have underlined] was relevant and was not covered by his Honour. For the appellant to be criminally responsible for the act of striking Ramsay in the face it was necessary for the jury to find that the appellant knew he held a beer glass in his hand at the time he struck Ramsay. There was ample evidence upon which such a finding could be made but equally evidence sufficient to sustain a doubt also existed. The jury was not informed that the appellant would not be criminally responsible for an act or omission which occurred independently of the exercise of his will and, indeed, the absence of such a direction is compounded by what his Honour had to say with respect to whether the accused did not realize he had a glass in his hand when he struck at Ramsay, for in those circumstances the jury was advised that such a mental condition, ie of knowledge - not of intent, would afford no defence. In my opinion, such a direction was wrong: see Barwick CJ in R v Ryan [1967] HCA 2; (1967) 121 CLR 205 at 217."

Jones J cited a passage from the judgment from Walsh J in Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, and said at p82: "In Kaporonovski's case, Kaporonovski had grabbed the victim's hand which was holding a glass and had jabbed the glass, thus held, into the victim's eye. This was held to be the relevant 'act'; the consequence of the 'act' was the 'event' of grievous bodily harm. Not surprisingly, that was held to be not 'an event which occurred by accident'. There was no issue, in that case, of whether Kaporonovski knew that he was jabbing a glass into his victim's face; that was the whole purpose of the 'act'. In the present case there was an entirely different position. There was an issue as to whether Duffy knew that he was striking the victim with a glass; Duffy maintained and consistently maintained that he did not know.

Obviously the act of striking a man's face with a fist not holding a glass is a fundamentally different 'act' from that of striking such a blow with a fist holding a glass. The latter 'act', if the striker did not know that he was holding a glass, is an act that occurs 'independently of the exercise of the will'. It was therefore of fundamental importance that the trial judge should deal fully and adequately with the provisions of s23 (the first limb, for the second limb, accident, obviously did not apply); and that, referring to the evidence in detail, he should put squarely to the jury that they must determine whether the accused did or did not know that he was holding the glass when he struck the blow, and that if they were not satisfied beyond a reasonable doubt that he did know, they could apply the section."

After quoting from and criticising the trial Judge's direction to the jury at some length, Jones J said at pp83-84: "� the true defence raised by the accused - that the act of striking the victim in the face with a glass was an act which had occurred independently of the exercise of his will - was never put to them at all. The fact that it was not so put is fatal, in my opinion, to the whole charge, and vitiated the trial. Compare the remarks of Barwick CJ in Ryan v R [1967] HCA 2; (1967) 121 CLR 205 at 217: 'If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provided a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. If it was not, then for that reason � the accused must be acquitted."

In the case under appeal, his Honour said early in his direction to the jury: "Nor is it disputed that the acts of the accused were voluntary or, as I put it before, deliberate. The real issue with respect to the charge before you of murder is whether or not the prosecution has satisfied you, beyond reasonable doubt, that when Mr Heinrich met his death as a result of an act both voluntary and unlawful of the accused, the accused then either intended to kill or intended to cause grievous bodily harm, or knew that death or grievous bodily harm would probably be caused to Mr Heinrich �

I hope I have said enough to indicate that there is no dispute in this case as to the fact that acts were deliberate. We are concerned with the special intent or state of mind.

So, what about this particular guilty mind which must be proved? And how are we to deal with the issue of drugs?

Whilst dealing with this issue, as I say the prosecution having to prove a conscious and voluntary act or acts of the accused causing death, the next step is the particular guilty mind which must be proved."

A little later when giving a direction on intoxication, his Honour said: "This is not a case where it is suggested that the accused was so affected by drugs that his acts were not a result of the exercise of his will. That is a very rare situation, members of the jury. It is not an issue in this case. Ordinarily an intoxicated person's actions are still under the direction of that person's will."

Later again, he said: "Well, members of the jury, that takes me back to reminding you that perhaps the most important question in this case is whether or not the accused formed an intention to kill or cause grievous bodily harm to the deceased or at least intentionally committed a fatal act knowing that he had the knife in his hand when striking at the deceased."

Finally, after the jury had asked him "for a copy of the law pertaining to murder and manslaughter", his Honour said: "Equally, in this case, it is not disputed that the acts of the accused were voluntary. That's taking you back to what I said was

what is included within the definition of the crime of murder. It involves an act being both voluntary and unlawful with a particular state of mind. As it happens, there are three alternatives in that state of mind. In some cases, the prosecution may prove beyond reasonable doubt the first of those three intentions accompanying what is said to be, and proved to be, or not disputed to be, a voluntary and unlawful act causing death.

Perhaps that's the difficulty you have got; that, in this case, the

real issue is the state of mind of the accused at the time a fatal blow was inflicted. As I have tried to say, the real issue with respect to the charge of murder before you is whether or not the prosecution has satisfied you beyond reasonable doubt that when Mr Heinrich met his death as a result of an act, both voluntary and unlawful, of the accused, the accused then either intended to kill or then intended to cause grievous bodily harm, or then knew that death or grievous bodily harm would probably be caused to Mr Heinrich."

I have reached the conclusion that notwithstanding the concession of defence counsel at the trial, his Honour did effectively withdraw the issue of voluntariness from the jury and that he erred in doing so. This court is not concerned with any Criminal Code, but the dicta I have quoted from the Falconer and Duffy cases are also applicable at common law. The jury heard counsel agree, just before they retired the second time, that the critical issue was whether it was satisfied beyond reasonable doubt that the accused knew he had the knife in his hand, but so far from linking that question with voluntariness, as it should have been, his Honour told the jury - pardonably having regard to defence counsel's concession - that voluntariness was not an issue. Moreover, his Honour's direction on intoxication did not include a direction that it was also relevant to voluntariness (see R v O'Connor

(1980) 146 CLR 64, R v Martin (1983) 32 SASR 419 at pp 459-463, and on appeal [1984] HCA 23; (1984) 58 ALJR 217).

Furthermore, I agree with Mrs Shaw that even if the jury was satisfied beyond reasonable doubt that the appellant was aware that he had a knife in his hand, it did not follow, having regard to the evidence about intoxication and the appellant's emotional state, that he must have the necessary murderous intent. Mrs Shaw referred to R v Shinner (1993) 173 LSJS 384. At p386, King CJ said: "I am left with an uneasy impression that the jury may not have been sufficiently aware of the precise issues which they had to resolve as to the appellant's state of mind and the bearing of his intoxication upon those issues. Despite the appellant's evidence to the contrary, there was a strong body of evidence leading to the conclusion that the appellant's boot made contact with the deceased's head on more than one occasion. There was therefore an issue for the jury as to whether the appellant intended to make contact with the head. That inference might readily be drawn from the appellant's actions if he were sober. The inference might not as readily be drawn in the light of his intoxicated state as it would be, if he were sober. If he did intentionally and repeatedly kick the deceased's head, the inference that he intended at least

grievous bodily harm might readily be drawn if he were sober. It might be less readily drawn by reason of his intoxication.

Despite the accuracy and completeness of the learned judge's treatment of the general questions of the mental elements of the crimes and of the topic of intoxication, I am by no means convinced that the jury would have appreciated the bearing of intoxication on the precise issues which they had to resolve. I think that a proper explanation of the defence required that the jury's attention be specifically directed to the significance of intoxication in considering the critical issues to which I have referred. "

Mrs Shaw also referred to R v Wingfield (1994) 176 LSJS 14. At p18, King CJ said: "[The jury] did not have the advantage of a direction which directly brought to bear the directions as to intoxication upon the vital issue which they had to decide. Deliberations of the jury would have been greatly assisted, in my opinion, by being reminded directly that inferences to intention which might be readily drawn from the nature of the injuries inflicted if the perpetrator is sober, might not as readily be inferred if the perpetrator is drunk, and that the critical issue for their consideration was whether, by reason of his drunkenness, the appellant might have inflicted these grievous injuries notwithstanding the absence of an intention to inflict that degree of harm." (See also R v Machin CCA Jt 5814 delivered on 20 September 1986[1996] SASC 5814; , (1996) 68 SASR 526.)

It is fair to say that the evidence of intoxication was stronger in those cases and that the use of a knife has greater potential to cause grievous bodily harm than a kick with a boot, but I agree with Mrs Shaw that they are very relevant.

The Director of Public Prosecutions asked the learned trial Judge to leave murder by recklessness to the jury. King CJ said in R v Cooke (1985) 39 SASR 225 at p237 that recklessness should not be left to juries as a matter of course, but only where it genuinely arises on the evidence. In The Queen v Nicholls CCA Unrep Jt No 576 delivered on 22 March 1988, King CJ said at pp6-7: "I think that it was unfortunate that the concept of recklessness was introduced into the present case for reasons which are similar to those which I expressed in R v Cooke 39 SASR 225 at pp236 and 237. To my mind, it was beyond the bounds of practical possibility in the present case that the appellant could strangle the woman with the shirt in such a muddled state of mind as not to intend to cause her at least grievous bodily harm but, nevertheless, realize that what he was doing would probably cause her death or grievous bodily harm. It seems to me that to introduce the concept of recklessness into the case simply added a further and unnecessary burden to the jury in performing its task of considering and resolving the real issues in the case.

Nevertheless, the issue having been introduced into the case and left to the jury, it was incumbent upon the trial judge to relate the question of intoxication to that issue quite clearly and equivocally. To direct the jury as to the bearing of intoxication upon intention but to remain silent as to the bearing of intoxication upon the state of knowledge of the probable consequences of the action, was to invite them implicitly to ignore intoxication in relation to that latter issue. It seems to me that failure to relate the appellant's intoxication to the issue of knowledge of probable consequences, once that had been introduced and left to the jury, was a misdirection of a serious kind."

At no stage did his Honour actually tell the jury that in relation to murder by recklessness they should take the evidence of intoxication into account in considering whether the Crown had proved beyond reasonable doubt that the appellant foresaw that what he did would probably cause death or grievous bodily harm. In addition to the case of Nicholls (supra), I add a reference to R v Ball, Bunce and Calliss [1991] SASC 2884; (1991) 56 SASR 126 at pp130 and 138.

Mrs Shaw also drew our attention to the fact that his Honour had not drawn a distinction between a general and a specific intent. For example, he said early in his summing up - "�there is no dispute in this case as to the fact that [the] acts were deliberate. We are concerned with the special intent or state of mind".

Mrs Shaw, as I understand her, argued that notwithstanding the concession of counsel for the defence at the trial, his Honour should have directed the jury that it was open to them to acquit even of manslaughter owing to the appellant's state of intoxication. Whilst in some respects, his Honour's direction on intoxication was incomplete, I do not consider on the evidence that there was a reasonable possibility that the Crown did not prove that the appellant did not intend "to do the physical act involved" in punching.

Defence counsel at the trial disavowed any reliance on self- defence. Mrs Shaw argued that self-defence should have been left to the jury. The evidence said to be in support of the defence was as follows. The appellant said to Detective Williams after he had been arrested - "He attacked me". In the course of a conversation with his former girlfriend, Jodi Carter, in the cells on the night of 13 May 1995, the appellant told her that he "got backed up to a fence". In his evidence at the trial he said that the deceased hit him with his right fist and that he belted him around the side of his head, and that he resisted. He did not want to go with the deceased who was attempting to drag him. He said in effect that he punched the deceased in order to break free. Mrs Shaw argued that all this amounted to sufficient material to give rise to an obligation upon the Crown to exclude self-defence beyond reasonable doubt. She also argued that the jury required to be separately instructed on the operation of self- defence in relation to manslaughter.

It would appear that the appellant was unlawfully on the deceased's land, and in the circumstances the provisions of subs3(a) of s15 of the Criminal Law Consolidation Act 1935 may well have been relevant. That provision reads: "(3) For the purposes of this section - (a) A person who resists another whom he � knows to be acting in pursuance of a lawful authority will not be taken to be acting in defence of himself ..."

The Court did not have the assistance of any argument on the sub- section, but in any event and as at present advised, I am not persuaded that in all the circumstances the defence should have been left. As I have formed the opinion that the appeal should be allowed for other reasons, it is not necessary to express any final opinion on this issue.

It will be obvious from what I have earlier said that I would allow the appeal, and set aside the verdict. Notwithstanding the concessions of defence counsel at the trial, this jury did not receive "an adequate direction both as to the law and the possible use of relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part." (See Barwick CJ in Pemble, supra, at pp117-118.) Having regard to the strength of the Crown case, the appellant should be retried for murder.

Since drafting these reasons, I have had the advantage of reading those prepared by the Chief Justice. I agree with what he says under the heading "Directions in relation to Manslaughter".

The facts of this matter are set out in the judgment of Matheson J.

Before addresses the learned trial judge invited counsel to make submissions on the matters to be included in the summing-up. Defence counsel told his Honour that he would be submitting to the jury that the real issue in the case was whether the appellant formed an intention to kill or cause grievous bodily harm. Counsel said he would be submitting to the jury that his client was guilty of manslaughter. He told the trial judge that the requirement of a conscious and voluntary act was not an issue raised by the defence.

The concession gives rise to some difficulty when considered alongside the version given by the appellant in evidence. Nevertheless it formed an important part of the basis upon which counsel addressed the jury and the learned trial judge summed up. In my view it led to an oversimplified statement of the issues in the case and a consequent failure to canvass with the jury in sufficient detail certain essential directions. It is unfortunate that this was the result, particularly when it emanated from the commendable desire of the trial judge to crystallize and narrow the issues for the jury.

It is important to have regard to what the appellant said concerning his condition and level of awareness. He told the jury that he had taken drugs during the day and that in the course of the evening he was "pretty out of it". He said that he tried to steal Mr Wegener's car and he was "very very drunk" and "stumbling around like I was the only person on the earth". He claimed to have no memory of much of what happened when he was in police custody after being arrested for attempting to steal the vehicle. After being released by the police and driven home by them the appellant said he went out again looking for his girlfriend. He went and got his knife. He said he was in a "daydream", in a trance. He then recounted how the deceased had challenged him for being on his property. According to the appellant a scuffle took place. He described the scuffle and said: "A When we were pulling each other, it was - it was quite silly actually. It was 'You're coming with me. No, I'm not' (INDICATES), you know, it was back and forwards automatic at that stage we were both like arched over because, like, we pulled each other in. That's when I - I didn't have a visual of him at that stage, because he was still, you know, moving around with me shoulder with me jumper (INDICATES), and then when I've struck with the blows, with the upper cuts - well, I call them upper cuts - it felt like a couple of them missed. It wasn't until the last one where I did hear a, if I can say, a thud or something similar to that, that I felt released. At this stage, you know, I'm all confused, hyped-up in the sense of being in a scuffle. I've run, run towards the gate, which was only from me, you know, a couple of metres away, grabbing the lever of the gate and hand up on the top of the gate and just pulled it (INDICATES). It was just automatically, you know, and I was out the front of the gates, like, getting me bearings, like in a panic state. And then I ran off (INDICATES), across the lawns (INDICATES).

Q During the whole of this incident, which you have just described, where was the knife?

A Now it was in me hand. Coming out of the shed, or sitting in the car and coming out of the shed I was aware I had the knife in me hand. It wasn't until that, the light come on that I forgot - well, everything it was irrelevant, I didn't know if I was Arthur or Martha, I was just concentrating on, well, the light come on, there was this dog and there was a man there. I wasn't aware, at the time, that I had anything in me hands."

In cross-examination the appellant said that throughout the night he was "in these trances and stuff like that". He said he did not realise the knife was in his hand until he got home.

The learned trial judge directed the jury that in the case of both murder and manslaughter it was necessary for the prosecution to prove that the deceased was killed by a conscious and voluntary act on the part of the appellant. However he told the jury that the defence did not dispute the voluntariness of the relevant act and the summing-up proceeded without the sort of direction which would have been appropriate if voluntariness was a real issue.

Concessions are often of considerable assistance in narrowing the issues which require the jury's attention in a criminal case, but the trial judge remains under a duty to conduct an independent assessment of the evidence in order to determine the relevant issues. This is particularly so when a concession is made by the defence for tactical reasons as I think happened in this case. Defence counsel told the jury that the appellant had acknowledged his guilt of the "very serious crime of manslaughter" for which he would receive punishment. In Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117 Barwick CJ said: "There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v. Director of Public Prosecutions [1942] A.C. 1 following Lord Reading's judgment in R. v. Hopper [1915] 2 K.B. 431 and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King [1946] A.C. 83, at p. 92-94). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part." (See also R v Perks (1986) 41 SASR 335 and Varley v The Queen [1906] ArgusLawRp 84; (1976) 12 ALR 347 at 351.)

There is no real doubt on the evidence that the deceased died as a result of stab wounds inflicted by the appellant. However the appellant claimed to have been affected by drugs in the manner to which I have referred. According to his version he was not aware that he had a knife in his hand at the time of the scuffle with the deceased. He referred in evidence to striking blows which he described as "upper cuts" and that on the last of these occasions he heard a thud. The pathologist found four stab wounds.

The concession by the defence that the appellant was guilty of manslaughter was based on the appellant's claim that he was unaware that he was stabbing the deceased, although he could recall punching him. The act, conceded as being both unlawful and dangerous, was an assault which did not involve the conscious infliction of wounds with a knife. For its part the prosecution argued that the proper verdict was guilty of murder based on an intentional stabbing.

The first question which arises is whether the trial judge was correct in giving effect to the defence concession by advising the jury that voluntariness was not in dispute and restricting his direction to the bald statement that the act must be conscious and voluntary. The general effect of the summing-up was to close off a verdict of acquittal as an option for the jury.

The cases in which intoxication will be of such a degree as to give rise to doubt that the mind accompanied the physical act must be rare and, because of the difficult concepts involved and the necessity for distinguishing between volition and intent, it is inadvisable for a trial judge to embark upon an extensive direction on the issue unless it is warranted. (R v Tucker (1984) 36 SASR 135). However the appellant in this case claimed that he was not aware that he was stabbing the deceased or that he had a knife in his hand at the time of the incident. Indeed it is no more than an assumption that the punches he referred to in evidence were the same movements as those which inflicted the stab wounds. The defence relied on some aspects of the medical evidence and the observations of eyewitnesses to support the version given by the appellant.

In these circumstances I think it would have been appropriate for the trial judge to have given the jury a more extensive direction on the requirement of conscious and voluntary conduct and the relevance to that issue of intoxication by drugs. This would involve leaving open the option of a complete acquittal. (R v Martin [1984] HCA 23; (1984) 51 ALR 540). I think these issues will have to be addressed in the event of a retrial if similar evidence is given.

If this were the only difficulty in the appeal I doubt that it would justify the setting aside of the conviction. The jury found the appellant guilty of murder and it can therefore be inferred that malice aforethought was proved beyond reasonable doubt. As King CJ pointed out in The Queen v Tucker (supra at 139) where a specific intent is proved in a case such as this "the issue of voluntariness is subsumed under the issue of intention". The question which remains is whether that finding was reached after proper direction.

Regrettably, the difficulties caused by the concession made by defence counsel and its unqualified acceptance by judge and prosecutor do not end with the issue of voluntariness. The learned trial judge reminded the jury that the defence had conceded that the appellant was guilty of manslaughter as a result of carrying out an unlawful and dangerous act. He explained the meaning of "unlawful" and said that an act is dangerous if a reasonable person in the appellant's position would have realised that his actions would have exposed the deceased to an appreciable risk of serious injury. However nothing further was said and, in particular, there was no reference to the act of the appellant which was relevant to this consideration.

In most cases it is unnecessary in a summing-up to dwell on the identification of the act which caused death. However there will be cases in which the attention of the jury must be drawn to the issue and left to them for decision. An example of such a case is Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 where it was debated whether the act which caused death was the pressing of the trigger or the presentation of the gun. In another case, Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378, the prosecution argued that the death of the deceased, who fell from a window of a multi-storey building, could have been caused in any one of three ways, each of which could be said to have been caused by the accused. Mason CJ said (p386): "So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased's death. In this respect there was, in my view, just as there was in Ryan, a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death. It is not to the point to say that in the present case the requirement of intent under s.18 was the same, no matter which of the acts identified by the Crown was selected by the jury as the cause of death. The point is that, in ascertaining whether there was a requisite intent, different matters may need to be taken into account, depending upon which act is identified as the act which caused death. As Stephen J said in White v Ridley [1978] HCA 38; (1978) 140 CLR 342 at 359: '[I]t is always necessary, if there is said to be any lack of temporal coincidence between act and intent, accurately to identify the relevant act. It was to this need that Barwick CJ drew attention in Ryan v The Queen (1967) 121 CLR at p219.'"

In my view the assertion by the appellant that he was unaware of the fact that he was stabbing the deceased rendered it necessary for the act which caused death to be identified so that issues such as voluntariness, general or basic intent, (see Tucker supra at 139) and manslaughter by unlawful and dangerous act could be evaluated.

Again it might be argued that, as the specific intention required for murder was proved, the failure to give proper directions on these issues cannot vitiate the conviction for murder. However I am of the opinion that the failure to draw attention to the importance of identifying the act which caused death could well have led to some confusion on the part of the jury which has consequences for the verdict of murder. It goes without saying that the act which caused death for the purpose of the crime of murder must be the same as that for manslaughter. But the act upon which the jury were invited to consider a verdict of manslaughter, namely punching, may well be an inappropriate categorisation. (cf. Duffy v R [1980] WAR 72.) It is my own view that the act which caused death is properly described as the stabbing of the deceased with the knife. However, it is an issue which must be determined by the jury, not the presiding judge or the Court of Criminal Appeal. (Ryan's case supra at 218; Royall's case supra at 386.)

The difficulty in the present case is that not only were the jury not instructed on the importance of accurately identifying the act which caused death, but the concession as to the voluntary nature of the act for the purpose of manslaughter (which may not have been the act causing death) had the potential to mislead them when they came to consider the elements of the crime of murder. Potential confusion about an issue as fundamental as the actus reus is sufficient reason to set aside the conviction.

A further matter raised on appeal concerns the directions to the jury on intoxication through drugs. In one respect they were quite extensive. The learned judge canvassed the medical evidence at length and summarised the observations of the eyewitnesses as to the appellant's condition. In my view, however, the relevance of that evidence to the question of intent was not explained in sufficient detail. And, of course, it was not related to the question of voluntariness. The core of the direction is contained in the following extract from the summing-up: "However, criminal liability depends upon the intention or state of mind of an accused person at a particular time. A person's intention or state of mind has to be inferred from what a person does and says. In this case, a question for you is whether or not, because of drugs, you may have a reasonable doubt as to whether the particular intention or state of mind or attitude of recklessness required to prove murder is made out. The prosecution has to be proved, beyond reasonable doubt, that the accused either

intended to kill, or cause the deceased grievous bodily harm, or was reckless as to whether death or grievous bodily harm would result from his act before the crime of murder can be charged, notwithstanding the presence of drugs in his bloodstream.

So, inferences, perhaps I have said enough about it, but the inference as to a person's intention or state of mind may be affected by the fact that that person has been taking drugs.

Another question is whether, because of drugs, the person may be confused, mixed up, have a possible false perception about things and circumstances. Drugs may also affect a person's recollection. Lack of memory about certain things may be explained by the effect of drugs. A question for you is whether any of those things are reasonably possible in this case.

You have heard the prosecutor suggest that notwithstanding the presence of drugs, there is a certain convenience of memory in the accused.

Contrary to that, Mr Borick has put to you alternative interpretations of things as they have occurred. It's for you to say whether it's reasonably possible the truth may be that any lack of memory in the accused on any particular occasion or of any particular event was due to the effect of drugs upon him or whether that's a reasonable possibility.

The fact that the accused had consumed drugs is also relevant to the question whether he had a particular belief at a particular time."

I think it was necessary to explain in greater detail the fact that intoxication through alcohol or drugs is an important factor to take into account, along with the rest of the evidence, when considering whether the requisite intention has been proved. Instead of referring to the "attitude of recklessness" sufficient to constitute malice aforethought, I think his Honour should have reminded the jury at this point of the summing-up that if there was no intention to kill or cause grievous bodily harm there had to be advertence to the probability of death or grievous bodily harm being caused and that their view of the level of awareness by the appellant of relevant events was crucial to the assessment. The jury have been instructed that this involves a careful assessment of any evidence which indicates an impairment of that awareness. Although the medical and eyewitness evidence on the issue was summarised in detail it was not related in a practical manner to the issue of intent. Instead his Honour said: "Well, members of the jury, that takes me back to reminding you that perhaps the most important question in this case is whether or not the accused formed an intention to kill or cause grievous bodily harm to the deceased or at least intentionally committed a fatal act knowing that he had the knife in his hand when striking at the deceased.

If you had a reasonable doubt about these special states of mind, particularly given the evidence about the presence of drugs in the bloodstream of the accused, a verdict of murder could not be returned."

The evidence of the facts and the accused's version were not related to the directions in any more detail. It should also be noted that the direction could have been understood by the jury to mean that an alternative state of mind sufficient to found a murder conviction would be made out if the appellant intentionally committed a fatal act knowing that he had the knife in his hand when striking the deceased. This passage is an example of the problem referred to by the Chief Justice in his judgment of focusing attention on awareness of the knife as being the crucial issue in the case.

I agree with the view of Matheson J that it was unnecessary to direct the jury on self defence.

I have reached the conclusion that the appeal should be allowed, the conviction set aside and a retrial ordered.