JUDGE1 MILLHOUSE J

1. I have read the Reasons prepared by my brother Olsson and, substantially for the reasons he gives, I suggest that the appeal should be allowed and the verdict of guilty of murder quashed.

2. However, in my view, there should be a retrial. The only three grounds of appeal, all of which succeed, arise out of the summing up. With respect, I cannot agree with Olsson J when he says, "that a properly directed jury would be most unlikely to find the appellant guilty of murder."

3. That, I suggest, is the question for the jury. There is sufficient evidence for a jury, properly directed, to convict of murder: a verdict of guilty of manslaughter is not an irresistible conclusion. There should be compelling and special circumstances for a retrial not to be ordered. There are none here. The decision should be made by a jury not by judges.

5. That being so it would be inappropriate to express a view about any penalty.

6. I suggest that the appeal be allowed, the conviction for murder quashed and that we order a new trial.

JUDGE2 OLSSON J 7. This is an appeal, by leave, against the conviction of the appellant, by verdict of a jury returned on 19 July 1993, of the crime of murder. There was a lengthy delay in the institution of the appeal because the solicitors who represented the appellant at trial originally advised him that there were no grounds of appeal. He received different advice when his case was reviewed by another solicitor some two years later.

The charge against the appellant arose from the death of one Hudson, whose body was found, on 19 October 1991, behind some shrubs in a paddock at Lonsdale. Post mortem examination revealed that he had died as a result of lacerations to the brain. The medical examiner estimated that he had probably died "somewhere about 2 am" that morning, but, in any event, not earlier than 10.00�pm the preceding night. The laceration of the brain tissue had been caused by bone fragments being driven into it as a consequence of a compound fracture of the skull. There was evidence of scratching and other abrasions to the torso.

It was the opinion of the pathologist that Hudson had received about four separate blows of some force to the right side of the skull. It was also noted that there was a so-called crushing "defence" injury to the left thumb and extensive abrasion of the face from the chin to the eyebrows, being most pronounced near the right upper eyelid. The liver was lacerated and pancreas bruised, consistent with a kicking type injury.

The scratching was consistent with a dragging of the body through scrub and, possibly, over a barbed wire fence in the locality where it was found.

The appellant gave evidence on oath. He said that his sister, then aged 18, was Hudson�s girlfriend and that he had come to know him about six months earlier by reason of that situation. They were on friendly terms and saw one another several times each week.

It was his evidence that at about 7.00 pm on Friday night 18 October 1991, Hudson called at the house where the accused boarded. It was a casual visit, in the course of which some beer was consumed.

He said that, after about half an hour, Hudson went with him, in the appellant�s car - first to get some petrol and then to purchase a carton of beer.

They first drove to a point near a video games arcade not far from the Colonnades shopping centre, where they "had a few beers". Thereafter they sought to call on mutual friends who lived in the general locality, but those persons were not home. By about 9.00 pm they had gone to an open area behind the oil refinery at Lonsdale, where there were a series of dirt tracks where people "thrash around in cars and watch people ride motor bikes � ".

The appellant told the jury that, by then, he would have consumed about 6�stubbies of beer and Hudson would have drunk less than that. Over the next 1.5 hours they continued to drink and drove around on the tracks in circles, "spinning the wheels, 360s and stuff like that, clowning around".

After a time, the appellant testified, he pulled the vehicle up and "cracked another beer". He was, he said, fairly drunk and Hudson, who was, at that point, sitting in the back seat, was intoxicated to a lesser degree.

According to the appellant a discussion arose, in the course of which Hudson made disparaging remarks concerning the appellant�s family in general and his sister in particular. Amongst other things, Hudson referred to her as an ugly slut, who "wouldn�t put out" (ie have sex).

On the appellant�s narrative a stage was reached at which Hudson opened the vehicle door and threw up. The appellant described what happened in these terms:- "Q. You said he started off grumpy. By that stage, when he was saying things, what�s his mood like then. A. He is getting louder as he is doing it and I�m getting more angry as he is doing it. Q. What happened then. A. This was over about a 10 minute period, and in the end I - he, I think, kept calling her a slut or something, you know, and he was slinging off about my family, you know, going backwards and forwards; then I think at one stage he opened the door and I think he was dry retching or something, then he threw up, I think he has thrown up in my car, or something similar to that. Q. He said something similar to that. A. Yes, then he shut the door. The thing that really sent me wild, he said she should be raped by bikers and that should teach her a

lesson, and by this time I was getting out the car to leave him there. I was just going to drive off on him, but I heard him call her a fat slut. That�s when I totally lost it. Q. Is this after he said about the bikies. A. Yes; that made me go to get out the car. Q. You were in the front driver�s seat I presume. A. Yes. Q. What happened then. A. That�s when I reached for the rock. Q. Looking at Exhibit P2, do you have photograph no.4 there. A. Yes, I do. Q. Does that show there where your car stopped. A. I believe so; it would be in that area there. Q. You got out and you said you saw a rock. What happened then. A. That�s when I grabbed the rock and got back in the car and I lent over and hit him with it. Q. When you first opened the door, what was your intention to do. A. To get him out the car and leave him there. Q. What made you pick up the rock. A. Him calling her a fat slut once too often. He has never gone that far with insults or getting angry or anything. Q. You said you got it and hit him on the head with it. A. That�s correct. Q. Where were you when you did this. A. I was leaning over the back seat, roughly in the middle of the bench seat of the car. Q. Where were you. Were you in the front seat of the car or back seat of the car. A. Front seat. Q. You were sitting on it, kneeling on it, or standing on it. A. I was kneeling on it.

Q. What did you do. A. I hit him about four times, four or five; I think it�s four."

The appellant narrated that, after the blows, Hudson was lying on his back in the rear of the vehicle - presumably unconscious. He got out of the vehicle, opened the passenger door and pulled him out onto the ground. He then commenced dragging him away from the track.

His narrative then continued in these terms:- "A. I dragged him across the road, then he started coming to and kicking and struggling. Q. At what point did that happen. A. Just as I got off the edge of the road. Q. What happened then. A. I dragged him further in, so I could get back to my car before he got to his feet. Q. Could you turn to photograph 10; you have heard that there was a strand of barbed wire across a little way off the ground there. A. Yes. Q. On this night, did you know that was there. A. Not until later on. I thought he grabbed hold of something - I remember him grabbing something, or it was harder to pull him across. Q. So you kept dragging him, and where did you go to. A. I went further into the grass and around. Q. Did you stop at some point. A. Yes, I did, just around (WITNESS INDICATES). Q. Would that be at about the point B that has been described by various witnesses on plans. A. Yes. Q. You�ve got an image of those plans in your head, have you.

A. Yes. Q. At point B did anything happen. A. Yes. I went around him to where - towards where his head was, and he was getting to his feet. Then he said �I�m going to kill you and your slut sister�, you know, he was getting up, and sort

of, like, pulling his pants back up, because they had come down a bit, and then that�s when I picked up another rock, and then I hit him on the top of the head; put his hands up to block it, and he fell down, and I hit him - I think it was another four times. Q. Where did you get that rock from that you hit him with on the second occasion. A. From the ground where

• roughly where he was. Q. You have seen two rocks produced in this court. A. Yes. Q. Could they be the rocks that you used. A. Yes. Q. How did you hit him on the head. You picked up this rock, you said that he was lying on the ground; how was he lying on the ground. A. Face down, sort of, like, laying crunched up, because he fell virtually straight down. Q. What was the light like in this vicinity. A. There was no light, except for the moon. Q. How did you hit him with this rock. A. I grabbed it and hit him from about chest high, bending over, on the head - head area (WITNESS INDICATES). Q. What did you do after you hit him on the head. A. I threw the rock - threw it away. Q. Then what did you do. A. I thought I would strip him off and make him walk back naked, so I took his clothes off. HIS HONOUR Q. I didn�t catch that. You thought you would strip him off and - A. Make him walk back naked. XNQ. Did you do anything else to him other than hit him with the rock. A. I kicked him a few times. Q. Whereabouts. A. In the stomach area. Then I stomped on his stomach. Q. How were you feeling at this stage. A. I was angry."

The jury was told that the appellant then took the clothing off Hudson, at which point he noticed both that he had defecated and also was bleeding profusely from the head. He said that he panicked, ran back to the car and drove off. He first went to some public toilets, washed blood from his hands and clothes and generally tidied up his appearance. Thereafter, he drove back to where he was living.

As to the all important issue of intention the appellant testified in evidence-in-chief:- "Q. When you hit him with the rock on the first occasion in the car, what was your intention at that stage. A. To shut him up and knock him out - or stun him. Q. If you hadn�t seen the rock at your feet as you were getting out of the car, what would you have done. A. Went around to the passenger side and pulled him out and left him there. Q. On the second occasion when you hit him, was that with the bigger rock. A. Yes. Q. The second occasion that you hit him, what was your intention then. A. Knock him out. Q. What did you believe you were doing to him, as far as damage or injury was concerned. A. I knew I had caused some cuts and bruises and that, but I didn�t think I did him serious damage."

The appellant conceded that, when subsequently questioned by the police, he told them a false story to the effect that Hudson had been with him in the car on the evening in question, but that he had dropped him off on Morrow Road at about 9.30 pm and had not seen him thereafter. At the time Hudson was uninjured.

In cross examination, the following dialogue occurred:- "Q. You obviously lied to the police about dropping Barry Hudson off that Friday night. A. Yes. Q. You lied to the police about that because you didn�t want to get blamed for what you�d done. A. Yes. Q. You wanted to avoid responsibility.,A. Yes. Q. You agreed to be videoed when you spoke to the police. A. Agreed to be videoed?Q. Yes. A. Yes. Q. You were quite happy to tell them this lie. A. Yes. Q. In fact, you wanted to tell them, didn�t you. A. I didn�t want to be arrested. Q. So you thought if you lied to the police, and said that you had dropped him off, there was a chance that you wouldn�t be blamed for it, and so you wouldn�t be arrested. A. Yes. Q. On the video, they showed you, as we can see, a street directory plan. A. Yes. Q. That plan had already been marked in an area where you had said that you dropped Barry Hudson off. A. I�m not sure. Q. In any event, when they showed you the plan, while the video was operating, you, in fact, looked at it, and said �The streets don�t look quite right�, and you altered the position. A. Yes. Q. You said �Oh, really, that�s not the position I dropped him off in. It was a bit further down the road.� That�s correct. A. Yes. Q. You pointed to a new position, or a different position. A. Yes. Q. You had circled it, and signed it, or put a cross on it, and signed it. A. Yes. Q. That was all to make it look realistic, was it. A. No, because I was asked questions before, I told them roughly the street and everything, and it was different on the map. Q. But it was all a lie. A. Yes. Q. Why did you bother to correct whether it was one street corner or the corner further down; was that to make it look realistic. A. Well, they would have caught me for lying. Q. You even, when asked by the police towards the end of the conversation whether there is anything else you would care to tell them concerning the death of Barry Hudson that may assist them, you even suggested that there was somebody that didn�t like him. You suggested a man by his first name, at least, who didn�t like him. A. Yes. Q. That was to get the heat or attention off you. A. No, this guy didn�t like him. Q. But he didn�t do the killing, did he. A. No. Q. But you were quite prepared to dob that man in to the police. A. Not really dob him in. Q. You told them his first name was Graham. A. Yes. Q. You said you didn�t know where he lived but you thought it was Edwardstown somewhere. A. Yes. Q. And that your sister - when asked could anyone tell them where he lived - you suggested your sister Lenora could do that. A. Yes. Q. So you are really giving the police information about a man that you know didn�t do the killing, that�s correct. A. Correct. Q. In the hope they will investigate someone else, not you. A. Well, ask him questions."

On the question of his relevant intentions his responses in cross examination were:- "Q. You have told the court that you knew that you had caused Barry Hudson some bruises, but you didn�t think you had caused him serious damage. Do you remember saying that. 26. Yes. Q Why do you think you had caused bruises but not serious damage. A Because if you hit someone with a rock, it will cause bruises. I was just knocking him out. 27. Were they four rapid blows, or was there a period of time between each one. 28. No, one straight after the other. 29. During that time, he didn�t do anything really, except sit there, or lie there. 30. Well, the first one probably stunned him, and the others knocked him out. 31. You realised that he was stunned. 32. I realised he was knocked out. 33. You were watching to see when he was knocked out, and you were going to stop then. 34. I was just hitting him to knock him out. 35. So when he looked knocked out, you stopped. 36. Yes."

He was here, of course, referring to the first incident in the motor vehicle. He was asked about his state of mind at this point and, during cross examination on that aspect, the following exchanges occurred:- "Q. The police asked you about whether that (i.e. what he had been saying about the appellant�s sister) was upsetting, what he was saying. A. Yes, I believe so. Q. And you said �No. I just didn�t want him to go off more, you know, because it annoyed me the tone of voice and that I thought "Yeah, he is going to go off again. So get out of the car, get him out of the car", this is what I thought.� Do you remember being asked that question and giving that answer to the police. A. Sort of, yes. Q. The police asked if what Barry Hudson had said had annoyed you and you said �No, it didn�t.�A. Correct. Q. Why didn�t you say it did. A. Because they would have got into it more, more detail, would have kept asking. Q. What would the problem of that have been. A. I would have had to repeat what he actually did say. I don�t like the idea of saying things about my sister, you know, having to repeat them. Q. So you decided to lie to the police about that. A. Yes. Q. You have agreed that you lied to the police so as to get yourself out of trouble, that�s right. A. Virtually, yes. Q. To avoid the responsibility for what you had done. A. Virtually, yes. Q. I suggest quite clearly you knew what you were doing when you struck Barry Hudson over the head with a rock - that when you struck him you intended to cause him grievous bodily harm or kill him. A. No. Q. Didn�t think you would cause him grievous bodily harm at least. A. No. Q. You didn�t even think he was seriously injured. A. I didn�t believe he was badly hurt, no. Q. And you were too scared to go back there. A. I don�t know - after, I panicked. Q. But you still didn�t think he was badly hurt. A. I wasn�t sure at that stage. I just didn�t know. Q. Not lying to avoid responsibility again, are you. A. No. Q. You thought hitting him over the head with that big rock wouldn�t cause much damage. A. I never knocked him out, bruised him. Q. You didn�t think there would be much damage by hitting him with the other rock either. A. Not permanent damage, no. Q. You said that you threw the rock off the roadway in an attempt to cover up what had happened. A. Sort of, yes. I didn�t know what I was doing at that stage. I was in a panic. Q. Correct me if I am wrong, you said earlier that one of the reasons you threw the rock was to cover up. A. Sort of, yes, and I said that, yes. Q. What do you mean by �sort of�. A. Sort of cover it up. I wasn�t sure what I was thinking at that point in time. Q. You were thinking enough to cover up. A. Basically. Q. You have told us you took the clothes off Mr Hudson so he could walk home naked. A. Yes. Q. But you agree that the clothes were left in the vicinity of Mr�Hudson. A. Yes, I am not sure - while I was taking them off or putting them in the same spot or what area. Q. You were trying to make the killing look like a certain type of killing by leaving him stripped. A. No. Q. Not at all. A. Not really, no. Q. You told us you were sort of covering up by the time you threw the rock, that�s correct. A. Yes. Q. You knew he was somewhere in the vegetation at the time you left him. A. Yes. Q. You made no effort at all to go back and check on him. A. No. Q. You say the first thing you did was clean your clothes really, try and clean your clothes. A. After I ended up at the park area, yes. Q. Because you wanted to get rid of any evidence about that. A. Not really evidence. I had blood on my hands. I couldn�t go into Dennis�s place with blood. Q. Because Dennis would have asked �What happened?�A. Yes. Q. And you wanted to hid (sic) it. A. I didn�t want anybody to know. I didn�t know if he was going to live, die, what happened. Q. You didn�t care though. A. I didn�t want him to die. Q. But you didn�t go and get help or help him. A. No. Q. Or even look for him next day. A. No. Q. I suggest you did intend for him to be extremely seriously injured, if not die. A. No."

It is to be noted that, whilst the appellant had said that he had consumed some 8 stubbies from the carton of beer purchased earlier in the evening and was fairly drunk, he did not, in the course of his evidence, suggest that he was so intoxicated as to not know or appreciate what he was doing.

Against the foregoing background the jury returned a unanimous verdict of "guilty" after a very brief retirement.

The present appeal is based upon three separate grounds. As pleaded they are:- "1. That the Learned Trial Judge failed to adequately direct the jury as to the use that the jury could make of lies told by the accused (pp 25-26 summing up).

2. That the Learned Trial Judge failed to adequately direct the jury as to the relevance of his intoxication to the accused�s state of mind in particular: (a) that intoxication was relevant for the jury to consider when deciding whether in fact the accused formed the specific intent to kill or cause grievous bodily harm, and (b) identifying for the jury the evidence that was relevant to the jury�s consideration of the degree of intoxication and the accused.

3. That the Learned Trial Judge erred in his instructions to the jury in relation to his own �understanding of the facts� in that such remarks must have made it plain to the jury that it was the Trial Judge�s view that there was no merit in the accused�s reliance upon either provocation or intoxication to reduce the charges to manslaughter, such remarks effectively depriving the accused of a fair trial. (pp 47-50 raised by counsel at p52 summing up).

It is convenient to address these seriatim.Lies Direction

In the course of his summing up the learned trial judge dealt with this topic in very brief terms. He said:- "� The accused was first seen by the police, you remember, at the house where he was living about 20 past 7 on the Saturday evening. He was there waiting for them to come. He told the police that he had been with Hudson the previous night, but that he had kicked him out of the car about half past nine, after Hudson started mouthing off about the accused�s family, and he told the police, certainly at the police station, and I think perhaps at the house as well, that he didn�t see Hudson again after that, and he knew nothing about Hudson�s death.So, as you know, he was taken to the police

station, and there he repeated, with more elaboration, the same denial of any knowledge about Hudson�s death. He answered those questions in the video interview. He agreed to go onto the video screen, saying �I just want to get all this cleared up�. The Crown introduced that video evidence, one might suppose, for more than one purpose; not only for the answers that the accused gave, but also the appearance of the accused during the video interview, and they would invite you to note the calm and apparently self- possessed way in which the accused conducted himself during that long video interview, when he was insisting that he knew nothing about it.The accused, as we know, because he has told us, lied to the police at the house, and he lied to the police when he first got to the police station, and he lied to the police throughout the video interview; and, ladies and gentlemen, you are entitled to take that into account on the question of his honesty and reliability. The accused said, of course, that he was scared, and that is why he lied. He didn�t want to be connected with Hudson�s death. He didn�t want to be arrested. However, Ms Abraham will say, �If that was his motive for lying then, it might be his motive for lying now, and no doubt it is. If he lied to the police, is he not perfectly capable of lying now to you? If his motive then was to escape the consequences of his action, might not that be the same motive that is influencing him to lie in this courtroom?�So that is the argument that is presented to you on that, and you are entitled to take that into account in assessing the accused�s evidence to you in the witness box."

Unfortunately, the transcript of counsels� addresses to the jury is no longer extant after the lapse of time which has taken place. All that is available in relation to this ground is the transcript of the Crown cross examination, as reproduced above, and the summation of the learned trial judge as to the broad effect of the Crown address to the jury.

It will be recalled that the Crown cross examination proceeded on the basis that the appellant lied to avoid responsibility for the crime and so that he would not be blamed and arrested for it. He accepted that he even tried to mislead the police in a manner which would focus attention on another person as the probable offender.

It is to be observed that the summing up pursued a similar line. It focused on the Crown contention that the lies told struck at the credibility of the appellant and were suggestive of the fact that he had also lied in giving evidence in court.

The learned trial judge did not advert to the question of when and on what basis lies can be relied upon as evidence of guilt and the inherent dangers attendant on reasoning in that fashion. It can only be assumed that the Crown did not, in addressing the jury, expressly or impliedly invite the jury to infer that the lies told evidenced a consciousness of guilt on the part of the appellant, from which they could actually infer that he did commit the crime of murder.

Absent such an invitation, the question arises as to what was the obligation of the learned trial judge in summing up on the topic of lies told by the appellant. The commencement point in this regard is, of course, to be found in the well known decision of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

In that case the majority of the Court made three specific points, namely:- (1) That, in a case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.

(2) The jury should be instructed that they may take the lie into

account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the

offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence or because of a realization of guilt and a fear of the truth.

(3) The jury ought also to be instructed that there may be reasons for the telling of a lie apart from the realization of guilt and, where that is the explanation for the lie, that they cannot regard it is an admission of guilt.

In absence of the transcript of counsel�s addresses this court is at a distinct disadvantage. One can only infer the basis upon which the topic of lies was discussed in front of the jury from a combination of the cross examination of the appellant and what was said by the learned trial judge in the course of his summing up.

As has been seen, the appellant conceded, in cross examination, that he lied because "he didn�t want to get blamed" for what he had done and because he "wanted to avoid responsibility". In the course of his summing up the learned trial judge certainly adverted to the effect of lies on the credibility of the appellant. However, he went on to paraphrase the Crown Prosecutor in the form of several rhetorical questions, the last one of which was "If his motive then was to escape the consequences of his action, might not that be the same motive that is influencing him to lie in this courtroom?"

These features of the trial must be viewed in the context that, at the end of the day, the appellant admitted to the jury that he had attacked Hudson and inflicted the various injuries on him. His defence to the charge of murder was that he had not intended to inflict grievous bodily harm upon him and did not think that he had done so. He merely panicked and fled the scene, despite that perception.

It seems to me that, given such a scenario, the expressed motive for the lies prima facie went to the topic of whether or not it had been the appellant who had assaulted Hudson, rather than what was the real issue in the case. Because the subject matter of the lies was not an issue at the trial, then the cross examination and comments in the summing up were primarily directed at general credibility, rather than a direct suggestion of consciousness of guilt of the nature discussed in Edwards v The Queen (supra).

However, in this case the fundamental concern is that, although there was a very real and difficult issue as to what had been the relevant intention of the appellant, the jury returned a verdict of "guilty" after a remarkably short retirement.

In my view there is a serious danger that they may well have used the telling of lies in an impermissible manner, both because the learned trial judge did not deal, in a definitive manner, with precisely what lies were told and also did not direct them as to the manner in which such lies could and should not be taken into account.

In this regard it is timely to reflect on what fell from the Privy Council in Broadhurst v The Queen (1964) AC 441 at 457. Their Lordships made the point:- "It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an

accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused�s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

Such reasoning is entirely apposite to the present case and I think that there is a strong basis for apprehending that, absent appropriate directions of the nature of those contemplated in Edwards v The Queen and Broadhurst v The Queen, the jury may well have succumbed to the natural tendency.

The point is well illustrated by reference to the judgment of Matheson J in R v Harris (1995) 64 SASR 85 where it was stressed that, where lies are in issue in a homicide case, there is often the need for the trial judge to tell the jury that it ought to consider whether the lies might have arisen from a sense of guilt arising from his having caused the death of the victim (however that death came about), rather than as a product of a realisation of culpability for the specific crime of murder. These are two quite different considerations.

Such reasoning is reinforced by reference to what fell from the Court of Appeal in R v Richens [1992] EWCA Crim 3; (1994) 98 Cr App R 43 at 51, where Lord Taylor CJ pointed out that lies told could often not logically be treated as probative of murder rather than manslaughter

• that they might simply be probative of some form of homicide, but be quite equivocal as to the type of it. This line of reasoning was consistent with that also adopted in R v Goodway (1994) 98 Cr App R 11.

I am inexorably driven to the conclusion that, in the instant case, the direction given impermissibly left the jury largely to its own devices in a situation in which it was imperative that it be left in no doubt as to the logical use limitations applicable to the evidence bearing on lies.

I therefore conclude that the appellant has made good the first ground of appeal.

Intoxication Direction 61. I next come to the complaint that the direction dealing with intoxication was inadequate.

There can be no doubt that, where the evidence suggests that an accused person charged with murder may well have been in a state of significant intoxication at the relevant time, then it is incumbent upon a trial judge both to direct the jury, in reasonably definitive terms, as to the nature and possible effect of that evidence and the manner in which it potentially bore on the formation of the specific intent which the Crown was required to prove.

It must be concluded that the directions given by the learned trial judge in this respect were somewhat fragmented. It is to be noted that his references to the detailed evidence bearing on the quantum of alcohol consumed, were really dealt with, quite incidentally, along with other narrative evidence touching on the broad thrust of the appellant�s evidence generally, and were not specifically linked to his discussion of intoxication. Having discussed the issue of provocation, he gave a general direction as to intoxication and its relevance to the formation of intention - but this was unrelated to the actual detailed evidence.

On the other hand, towards the end of his summing up the learned trial judge returned to the issue of intention and the need to consider the potential effects of alcohol in relation to it. At this point he commented:- "Now, one thing obviously that could cloud his realisation and understanding and intention, and there has been a lot of emphasis quite properly put on it, is the subject of alcohol. We know that he had been drinking, but how drunk was he? Because you have to use your experience, your judgment, in relating the question of alcohol to the states of mind, the realisations and intentions, that are essential to the prosecution case."

However, it must be remembered that his directions at that point focused particularly on the evidence related to what, he suggested, were purposeful activities of the appellant immediately following the assaults on Hudson. They were in the context of final passages of the summing up which are the subject of the third ground of appeal, and the significance of the point sought to be identified may well have been lost in that context.

There are some broad similarities between this case and that of R v Shinner (1993) 173 LSJS 384.

In the course of his judgment in that case King CJ commented:- "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 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.There was a good deal in the evidence to support manslaughter as the proper verdict The killing resulted from a sudden drunken quarrel disclosing no probable motive for murder. The actions of the participants both before and after the assault were strange if not bizarre. The whole incident appears to be clouded in an alcoholic haze. I think that if the jury�s attention had been directed more specifically to the bearing of intoxication upon the precise issues to be resolved, the verdict might well have been manslaughter rather than murder."

In this case, also, the assault on Hudson was, in its intensity and continuance, mindless and bizarre. It begged obvious questions as to the state of mind and sobriety of the appellant. True it was that he was not intoxicated to the degree that he was incapable of driving his car or appreciating the difficulty in which he found himself, but that is not to say that he formed the necessary criminal intent.

It seems to me that the subsequent references by the learned trial judge to the later purposeful acts of the appellant (to which I shall shortly come in greater detail) were, as Ms Shaw, of counsel for the appellant, submitted, both inapposite and apt to deflect the attention of the jury from the critical considerations.

The essential problem inter alia, touched upon in R v Shinner, was expanded upon by King CJ in R v Wingfield (1994) 176 LSJS 14. He there made these comments:- "The nature of the injuries were such that, if the perpetrator were sober and otherwise in his right mind, the inference that grievous bodily harm was intended would be almost inevitable. This appellant, however, was not sober. He was undoubtedly drunk. There seems to be no reason to doubt the genuineness of his amnesia on the following morning for the events of the previous night. The utmost care was required in directing the jury to the bearing of his intoxication upon the issue of intention. �It should be said at once that there could be no real question in the present case of the appellant�s acts being involuntary. There can be no doubt from his actions that his will was directing those actions. Moreover he clearly intended to do what he did. The real question in the case relates to the mental element of murder and in particular whether, in his drunken state, he inflicted the terrible injuries without the intention to cause grievous bodily harm. �I think that the jury might well have been confused by these directions as to the relevance of intoxication. Moreover they 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."

Bearing those considerations in mind it seems to me that the references to purposeful acts such as driving the car and performing other functions was really unhelpful and apt to mislead. The question was not whether the appellant was so drunk as not to be capable of performing purposeful acts, but, rather, whether, by virtue of intoxication, it was reasonably possible that he did not appreciate the practical effect and enormity of his conduct and intend the consequences of it. They are two very different considerations; and daily experience in the courts readily reveals that persons far gone in drink can, nevertheless, perform purposeful acts. Whether they appreciate or intend the likely effect of them at the time is entirely a different question. Moreover, as Ms Shaw, of counsel for the appellant, stressed, the jury needed to understand that two quite separate intentions had each to be proved by the Crown beyond reasonable doubt. The first was a general intent to execute the various forms of assault actually carried out. The second (and even more vital intent) was to kill or cause grievous bodily harm. A drunken person could well form one intent, but not the other.

On any view the appellant seems to have been drinking fairly steadily from some time at or before 7.00 pm. It was thus of paramount importance that the jury be placed in no doubt as to the detailed evidence in that regard, isolated out by way of specific linkage with the direction on intoxication, and the precise issue to which they were required to direct their minds on this topic. I do not think, with respect, that this was done in a satisfactory fashion.

I, therefore, consider that this ground has been made out.

Balance of the summing up 74. There only remains the issue raised by the third ground. In essence it avers that the summing up lacked balance and, as presented, projected what may well have been perceived as a strong, concluded view of the learned trial judge concerning important issues in the case.

It is trite to say that it is the obligation of the trial judge, in summing up, to give a presentation which is both fair and balanced (R v Courtney-Smith (No�2) (1990) 48 A Crim R 49.)

There is a surprising diversity of judicial expression in the published authorities as to the parameters within which a trial judge must operate to achieve that end result. However, relevantly for present purposes, at least these propositions may be distilled from them:- (1) It is an essential requisite of a fair summing up that there be explained to the jury, in a detached and dispassionate manner, the substance and legal implications of the defence. Any comment concerning the defence should be quite separate from that explanation.(R v Byczko (1982) 30 SASR 578)

(2) The trial judge must be conscious of the likely impact of what he or she says on a jury. As was stressed by the Court of Appeal in Regina v Pavlukoff (1953) 106 CCC 249 at 267, the presiding judge occupies a position of great power and prestige and what he or she says cannot fail to bear heavily on the jury. "To the jury the presiding judge appears as the great neutral. Anything that emanates from him, carries for them at least all the ear-marks of balanced justice."

(3) Where a judge expresses personal views "there is a danger of

the jury being over awed by the judge�s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge�s views" (R v Hulse (1971) 1 SASR 327 at 335, approved in B v The Queen [1992] HCA 68; (1991-92) 175 CLR 599 at 605 - where Brennan J (as he then was) also made the point that "comment must stop short of over awing the jury. It must exhibit a judicial balance so that the jury is not deprived �of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence�".)

(4) Care must also be taken in the mode of expression employed in promoting views related to the evidence. To adopt the dictum of Southwell J in R v Nation (1995) 78 A Crim R 125 at 130:-"� To suggest to the jury that it �should have no difficulty� in making adverse findings against the applicant in relation to the first two facts mentioned, was in the circumstances of this case tantamount to telling the jury that it should have no difficulty in convicting the applicant. For my part I doubt whether such a comment, whether or not accompanied by a direction that the jury is at liberty to ignore that comment, can ever properly be justified when it goes to the heart of a critical issue at the trial. Often such a comment is made, entirely justifiably, about an element of an offence which

is not in issue: eg in a charge of causing serious injury where upon any view the injury must be regarded as serious. But it is altogether another thing for a judge to make the comment here quoted. The language itself assumes the aura of command

• it was not �you may think�, or �you might not have too much difficulty� - here it was �you should have no difficulty�."

In this regard what also fell from the Court of Appeal in Reg v Pavlukoff (supra), in this regard, is very pertinent:- "It seems an absurdity for a Judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury. To a person who is not a lawyer, but has some training in the science of correct thinking and some knowledge of the workings of the human mind, a Judge who expresses his own opinions to the jury is in effect unconsciously perhaps but nevertheless subtly and positively undermining the plain instruction he has given the jury that �the facts are for them and not for him�; in reality he is in true effect attempting to persuade the jury not to exercise their own minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them."

It seems to me that the dictum of King CJ in R v O�Neill (1988) 48 SASR 51 at 62, relied upon by the Director of Public Prosecutions, must, with respect, be read subject to the above qualifications. The learned Chief Justice there said:- "� his Honour made clear to the jury that the facts were for them and that they were not bound by any expression of his own opinions. A summing up is not unfair because it accurately reflects the strength of the case for the prosecution on the one hand and the weakness of the case for the defence on the other. The case for the prosecution was very strong and the only answer was a very belated story which was in flat contradiction of what the appellant had told the police. It is not surprising that the strength of the Crown case and the weakness of the defence case emerged from a

I venture to suggest that such dictum was not intended to constitute a carte blanche for a trial judge to emphasize unduly the particular strengths of a prosecution case in a manner which is inconsistent with a fair, balanced and impartial analysis of the issues which a jury must consider. True it is that balance must, in one sense, constitute a reflection of the relative strengths of the Crown and defence cases, but it will rarely be appropriate for a trial judge to proffer what is tantamount to an expression of his or her personal assessment of the matter.

In that regard I do not ignore the older case of The Queen v Joyce (1970) SASR 184, but I do not think that, properly understood, it intended to erect any principle beyond that adverted to by King CJ. Any wider interpretation of it seems contrary to more modern authority.

In the instant case, complaint is made that, in the concluding stages of his summing up, the learned trial judge both promoted what was tantamount to a personal view and destroyed the balance of the overall summing up in an impermissible manner when he said:- "May I just end, ladies and gentlemen, with a few remarks of my own. As I said earlier, it is your understanding of the facts that matters, not mine, so these remarks are offered for your assistance, but you must just take them or leave them as it seems proper to you.It does seem to me that the accused�s answer to the murder charge faces a couple of substantial difficulties. There is the matter of his intention, and that involves the inter-related question of alcohol and also the second line defence, as one might call it, of provocation.So far as his intention goes, I just make one remark, because I don�t think anything has been said about it, and draw your attention to the kicks to the body. We know there were those repeated blows to the head, there is no dispute about that; and the kicks to the body, of course, did not contribute to the man�s death. I do mention them for that reason, but you remember that the accused admitted that he kicked the man in the body and he must have done it pretty forcefully because the spleen and the pancreas were both injured and there was internal bleeding, and he stamped on the body; and while, as I say, they are not the injuries which have led to the murder charge, you may think they give you some assistance in reckoning the intention of the accused when, a little time earlier, he struck those blows to the head. Did he strike those blows to the head with the intention, at least, of causing really serious harm? Now, one think obviously that could cloud his realisation and understanding and intention, and there has been a lot of emphasis quite properly put on it, is the subject of alcohol. We know that he had been drinking, but how drunk was he? Because you have to use your experience, your judgment, in relating the question of alcohol to the states of mind, the realisations and intentions, that are essential to the prosecution case.Well, he had been driving a car for about an hour and a half, not only through the streets of Christies Beach or Port Noarlunga, this area, but around that informal dirt track, speedway, or whatever it was, behind the refinery, and, presumably, he coped satisfactorily with that, and you may think, of course, with a degree of skill - one can only generalise because we don�t know the details of it. True enough, he had been drinking while he was doing that, so the blood alcohol level would be going up perhaps rather than down; but, ladies and gentlemen, he was also driving after the events that led to Barry Hudson�s death, and there is no suggestion that he wasn�t driving competently; and he certainly acted purposefully, you may think, immediately after he left the scene. He had thought he was covered with blood, he cleaned himself up in the lavatory, washed his face. And the things that he did about disposing of blood stains in the car and his own clothes. And you may think it interesting that he appears to have a pretty detailed recollection of what happened at the scene, the sequence of events and precisely what he did and what the man did. So he is certainly not the example of the drunk who is so drunk that he doesn�t know what he is doing and cannot remember things. Of course, the defence does not say he was that drunk, but they are things you can take into account in considering the impact of alcohol on this man�s intention, possible intention, at the scene of the death that night.Is it a reasonable possibility, do you think, that he did not intend, at least, to cause Hudson really serious bodily harm? If you do not think that is a reasonable possibility, then the only thing that stands between the accused and a verdict of guilty of murder is this question of provocation"

The learned trial judge then went on, seemingly, to infer (by the context and his mode of expression) that no reasonable person, subjected to relevant provocation, would have behaved in the manner exhibited by the appellant. Certainly he did not express himself in those blunt terms, but what he did say must be read in conjunction with what immediately preceded it.

At the end of the day it remains a question of judgment as to whether or not the above approach offended the broad precepts to which I have referred. Having carefully considered the impugned text in the overall setting of the whole summing up I am driven to the conclusion that it did.

Quite apart from the fact that, as I have indicated, the analogy sought to be drawn was unfortunate, in that it tended to deflect the thinking of the jury from what was the critical issue to be considered, what was said must have been construed by the jury as the clearest of indications of what the learned trial judge had concluded, by way of his personal assessment of the evidence. It had the necessary affect of unduly emphasizing the Crown case, to the detriment of a dispassionate presentation of those aspects which logically arose for consideration from the defence viewpoint.

True it is that, as Mr Rofe QC declaimed, it is important to give due weight to the atmosphere generated at trial and to appreciate that the summing up had to be considered (and would have been received) in light of that atmosphere.

However, even making due allowance for that factor, it must be said that nothing could have been plainer than what was conveyed by the learned trial judge. It is impossible to escape the impression which emerges from the language used.

I therefore accept that the third ground of appeal has also been made out.Conclusion

In my opinion, having regard to the situations above discussed, this appeal must be allowed and the jury�s verdict set aside.

In her submission Ms Shaw, realistically, conceded that, if the jury verdict was set aside, it was appropriate to substitute for it a verdict of guilty of manslaughter. By way of contrast Mr Rofe QC contended that there ought to be a retrial.

It appears to me that the course espoused by Ms Shaw is that which ought to be adopted.

I have reached the conclusion that a properly directed jury would be most unlikely to find the appellant guilty of murder. There is no apparent motive for an intention to kill or inflict grievous bodily harm. The logical explanation of the quite irrational, extreme and bizarre behaviour of the appellant on the night in question appears to be that, in a substantially intoxicated state, he lost control and vented his anger on Hudson without really appreciating the degree of injury likely to result from his actions.

In those circumstances the interests of justice are best served by substituting a verdict of manslaughter for that which is set aside.

The question then arises as to what sentence is appropriate to such a situation.

It has been said on a number of occasions that there is not and, logically, cannot be, any recognised sentencing tariff for the crime of manslaughter. As was reiterated in R v Weinman (1987) 49 SASR 248 at 250, "manslaughter is a very variable offence. In its lowest range of criminality, it may be little more than a practical joke that went wrong, and in its highest it stops just short of murder." Sentences imposed must, manifestly, be a reflection of where a particular crime falls along such a spectrum.

Particularly as the degree of apparent intoxication of the appellant does not appear to have been as high as in some other cases and the extent of appreciation by the appellant, at the time, of the general enormity of his conduct must, thus, be taken to have been higher, I would categorise this situation as being close to the top end of the spectrum of offences of its type. The inherent seriousness of the offending, its horrific outcome and the factor of general deterrence combine to indicate the need for a very substantial custodial sentence, in relation to which no discount is attracted for a timely plea.

I would propose a head sentence of 15 years imprisonment with a non parole period of 10 years, both to run from the date when the appellant was taken into custody.

JUDGE3 WILLIAMS J 97. I agree with Olsson J that the appeal should be allowed and the verdict of guilty of murder should be quashed.

98. However, for the reasons given by Millhouse J I would order a retrial.