R v Fowler [1999] VSCA 135

11. The trial of the applicant lasted for some two weeks. Much evidence was called from persons who were in the vicinity when the events unfolded. It will be necessary to return to their evidence later. The Crown case was that the applicant was angry at the intrusion into his domestic privacy; and had taken his gun and tracked the Samoan men down in his car. When he found them not far away to the north of his premises in Fairbairn Road, he drove at two of them at the intersection of Warmington Road, which runs east from Fairbairn Road, narrowly missing them. He then turned his car around and drove back to Fairbairn Road, made a right-hand turn and stopped in the driveway of premises at 83 Fairbairn Road on its western side, a short distance to the north of Warmington Road. He then got out of the car with the gun, and fired a shot from a distance of 20 to 30 metres at the victim, which struck and killed him. He then returned to his car and drove away. He later returned to the scene whilst police were there and was arrested. In the meantime he had disposed of the gun and it was never recovered.

14. In response and in contrast to the Crown case, the applicant (who gave evidence) told a story of fear and panic, and of such aggressive behaviour by the Samoans at his premises that he feared they were going to break into them and cause damage. He was so fearful that he had ordered his wife and Bell to leave the house with the child and seek sanctuary at a friend's house. He had then taken his gun, which he had never used before, and set off in his car to Felstead Avenue which ran past the rear of his premises into Fairbairn Road from the west. His aim was to see whether the Samoan group were at the rear of the premises. When he saw that they were not, he continued on into Fairbairn Road. He saw two of the group further to the north on the median strip of Fairbairn Road near its intersection with Warmington Road. He denied that he had tried to run these men down when he turned into Warmington Road. He said that his intention at this stage was only to reason with them so that he could get his family back home. When he had pulled his car up in the driveway at 83 Fairbairn Road he was almost opposite the two men on the median strip. He got out of the car; he had the gun in his hand because it had been on his lap; he yelled out words to the effect "Don't be stupid"; all of a sudden another car came out of Warmington Road at a fast speed and skidded across the road surface of Fairbairn Avenue colliding with the fence immediately behind his car. Believing that the occupants were reinforcements of those hostile to him, his sense of panic was heightened and he swivelled around, pointing the gun towards the occupants of the car, telling them to stay where they were. He then noticed the two men in the centre of the road running towards him, brought the gun back in that general direction, but lifted it and "shot into the air". He did not aim - it all happened too fast. He did not believe anyone had been shot. He jumped back into his car and drove off to evade his pursuers. After a short time he heard sirens and realized that he should get rid of the gun. He was near the Kororoit Creek and he threw the gun and bullets out of the car towards the creek. He then drove back to the scene where he saw the assembled crowd and gave himself up to the police.

17. The primary claim of the applicant was that he had not formed the necessary intent to commit the crime of murder. His trial counsel also contended that the applicant had acted in self-defence or that he had been provoked. The judge put to the jury the issue of self-defence and that the applicant could be convicted of manslaughter on the basis of provocation or because he was merely responsible for an unlawful and dangerous act which caused the victim's death.

20. No exceptions were taken to his Honour's directions by the applicant's trial counsel at the completion of the charge.

23. The jury's verdict demonstrates that they were satisfied on the evidence that the applicant, at the time when he fired the shot, intended either to kill or cause really serious injury to the deceased. It also shows that they were satisfied to the requisite standard that the applicant had not acted in self-defence and that he was not provoked in the sense in which that issue had been left to them.

26. Notwithstanding that no exception was taken by the applicant's counsel to the directions given by the judge, Mr. Tehan, who appeared for him in this Court, has submitted that the trial miscarried as a result of material misdirection or non-direction. It was Mr. Tehan's principal submission (under ground 2 of the application) that it was open to the jury on the evidence to conclude that the gun had discharged otherwise than by a conscious and voluntary act on the part of the applicant and that, although trial counsel for the applicant had made no such contention to the jury, his Honour was bound to direct the jury in relation to accident. Mr. Tehan contended that his Honour's directions in this regard fell short of what was required; indeed they effectively removed the issue from the jury's consideration.

29. Mr. Tehan founded his submission primarily upon the evidence given by the applicant in the course of which he made a number of conflicting statements concerning the discharge of the gun which resulted in the death of the deceased. Mr. Tehan submitted that, properly understood, it would have been open to the jury to entertain as a reasonable possibility that the weapon had been discharged at a time when the applicant was in a heightened state of fear and panic as a result of the events immediately preceding the discharge of the gun; and that the shot might have been the result of an involuntary action on the part of the applicant.

32. For a proper understanding of Mr. Tehan's submission it is necessary to return to the events, as disclosed by the evidence, which preceded the shooting. The narrative commences some 20 minutes earlier, and in a manner which may fairly be said not to have been of the applicant's making. A central witness in the Crown case, John Tua, who was a friend of the deceased and his family, had been steadily drinking throughout the afternoon and evening of 21 May with a friend called Felise at 38 Fairbairn Road, an address somewhat to the north of the intersection of Warmington Road. Mr. Tua was initially in the company of his wife, and Felise and his wife. Some time later in the evening they were joined by Tua's daughter, Margaret and her husband Kelly Pule Pule. Shortly before midnight Tua and his wife left 38 Fairbairn Road to travel to their own house in Nuttall Crescent, access to which was from Warmington Road. When they left 38 Fairbairn Road, Tua was badly affected by drink and, because of some remark made by his wife, refused to get into the car with her, his daughter Margaret and Kelly. Accordingly he set off on foot in a southerly direction along Fairbairn Road towards Warmington Road with his wife, Margaret and Kelly slowly pursuing him in the car expecting him to join them. When they got to the intersection of Warmington Road it became apparent to the occupants that Tua was not intending to go down Warmington Road towards his own house, but was intent on proceeding down Fairbairn Road to the south. Kelly alighted from the car, ostensibly for the purpose of ensuring Tua's safety. Tua's wife and Margaret turned left into Warmington Road and drove home. Tua and Kelly proceeded south down Fairbairn Road, crossing over onto its western side. They went past Felstead Avenue to a point where the nature strip widened into a grass verge abutting the rear of the premises occupied by the applicant.

35. At this point it appears that they were joined by Tua's son, Richard, and Paul Taga (the deceased). Richard and Paul, who had been out with girlfriends that evening, had seen Mrs. Tua in Fairnbairn Road and had gone after Tua. They had not been drinking. Tua, Kelly, Richard and Paul were talking and making a lot of noise when a dog began barking behind the fence. Kelly said they were mucking around, laughing and swearing. Someone told the dog to shut up, at which Richard said he heard a woman call out "Fuck off you black cunts!" and then saw the applicant come out of the house. The applicant and Kelly argued, each telling the other to "fuck off". Tua said he saw the applicant standing outside next to his dog, saying that he was going in to get his gun and that he returned with something small in his hand. Tua's evidence was that he said "Let's go" to the other three and they walked off towards Warmington Road. Richard said he saw the man raise his left arm and point a gun in his direction, the gun having a thick handle and thin barrel. On seeing the gun Richard ducked and both John and Paul came over to the fence. Richard said Tua asked if the gun was real and the applicant replied that it was a toy gun, told them to "get fucked" and said he would call the cops. Kelly said that he had thrown a glass at the fence before the dog started barking but did not think it went over. Kelly said they were causing a disturbance and that the dog was jumping at the fence. The four men backed off quickly when they saw the gun and moved away from the fence. The applicant in evidence said he thought the four were trying to come over the fence and that one of them said he would have Samoans and Asians back there within five minutes.

38. Paul and Kelly then walked together in a northerly direction up Fairbairn Road, and just before Felstead Avenue crossed onto the median strip. Meanwhile the applicant had told his wife, Cindy Gay, and their visitor, Joann Bell, to take Jessie and "Just get out of the house and don't come back tonight". The applicant then got into his car, a blue Commodore, and, armed with his Luger pistol, drove from Nash Court along Felstead Avenue to Fairbairn Road. He told the jury he intended to check out the house from the rear to see if any of the males were inside before going to the police. However, when he reached the intersection of Felstead Avenue and Fairbairn Road, he saw three of the males in the street; two, Kelly and Paul, were crossing Fairbairn Road in a north-easterly direction towards Warmington Road, and the third was further south on the median strip. The applicant drove at a fast rate of speed into the intersection, turned left into Fairbairn Road before ultimately turning right into Warmington Road. In doing so, the applicant's car just missed Kelly and Paul, who had to jump up onto the median strip.

41. Paul and Kelly then crossed the road towards the south-east corner of Warmington Road. At that point Margaret Tua drove down Fairbairn Road travelling north. Richard told Margaret, his sister, to follow the other car and in order to do so she turned down Warmington Road. The blue Commodore then came out of Warmington Road at high speed, and made a right-hand into Fairbairn Road stopping between two driveways outside 81 Fairbairn Avenue. At this point, Richard was near the bus shelter not far from the intersection of Felstead Avenue and Fairbairn Road. Tua had crossed the road to the median strip, still half-way between Felstead Avenue and Warmington Road. Kelly and Paul were then near the south-east corner of Fairbairn and Warmington Road. Richard saw the applicant jump out of the blue Commodore, identifying him as the man who had been behind the fence. Margaret Tua then drove out of Warmington Road and turned right into Fairbairn Avenue. She swerved to avoid the applicant and in doing so ran into the fence outside 83 Fairbairn Road. She was then some six to seven metres from the back of the applicant's car and the applicant was standing in the middle of the road. Kelly and Paul were moving towards the median strip on the northern side of Warmington Road, and Kelly said that Paul had started jogging towards the car. Kelly told him to come home but he kept jogging. The applicant, however, lifted up his hand and the gun discharged. According to Kelly, Paul then said "Oh Kelly" and collapsed. Kelly's evidence was that the applicant was approximately 30 metres from the victim at the time.

44. Of the others present, Richard heard the gunshot and saw the deceased fall to the ground. Margaret, who was still in her car, turned and saw the applicant pointing the gun towards Warmington Road and said he was yelling and screaming and heard a bang. Her younger brother Daniel who was in the car with her, said he saw a man with his arm stretched out and smoke coming from the pistol. Margaret then went to get out of the car, at which the applicant pointed the gun at her and said "Do you want to get fucking shot too?" Daniel's evidence was that the applicant said "Do you want me to fucking shoot you?" The applicant then jumped back into his car and drove off. Some time later, having disposed of the gun and ammunition in the Kororoit Creek, he returned to the scene and after a brief skirmish with the distressed friends and relatives of the deceased he was taken into custody.

47. Evidence was given by a number of neighbours of the events leading up to the arrest of the applicant, the most important being that of Robyn Sleeth, who observed the applicant arrive back at the scene in his blue Commodore, and get out of the car and, according to her, said "Yes I done it and it was all deserved." She thought he also said "All you bloody wogs need it." Ms Sleeth was cross-examined about what the applicant had actually said and amended her evidence to "Yes I done it and you deserve it. You bloody wogs deserve it." She was cross-examined as to an earlier version allegedly given in her police statement in different terms but maintained that what she had actually heard was "Yeah I done it and you's wogs deserve it."

50. In these circumstances it was Mr. Tehan's submission that although the issue of accident was not mentioned by witnesses or counsel, the concatenation of factual circumstances concerning the killing of the deceased was such as fairly to give rise to a consideration of it and that accordingly the judge should have directed the jury on accident. Mr. Tehan relied on the following pieces of evidence to make good his argument. The discharge of the applicant's firearm had been closely preceded by a frightening situation in which he felt his life and those of persons in his home was in danger. That situation had been exacerbated by the fast and erratic movements of the vehicles of the applicant and Margaret Tua, the latter's crashing into a fence near where the applicant had stopped his car. There were several persons in the vicinity of the intersection of Warmington and Fairbairn Roads when the applicant got out of his car including the victim who was running towards him at about the time the firearm was discharged. Mr. Tehan submitted that everything happened very quickly and the applicant was in a state of fear, panic and confusion at the time the shot was fired. The applicant himself said in evidence that he had not previously used the firearm, notwithstanding that he had owned it for a number of years. Evidence relevant to the firing of the shot was that the applicant pointed his gun at people near the gutter in the area where Mrs. Tua's car crashed, spun around and lifted the weapon in the air and he swore he thought he let off a shot into the air. He said he meant to shoot the gun in the air. The applicant also said he could not remember whether he pulled the trigger or whether he discharged the firearm, but said he did not believe he had shot anyone.

53. In Ryan v. The Queen [1967] HCA 2; (1967) 121 C.L.R. 205, at 217 Barwick, C.J. said -

"If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides 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, there being no defence of insanity, the accused must be acquitted. No doubt care will be taken by the presiding judge that the available material warrants the raising of this specific issue. In doing so, he will of course have in mind that the question for him is whether upon that material a jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act attributed to the accused. ... Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury."

57. In the present case the defence of accident was plainly open on the facts, because the applicant's evidence left open the possibility that he may not have intended to fire a shot at all. The applicant's evidence at different times could have supported this possibility, as might Margaret Tua's statement that the applicant was waving the gun around before the discharge occurred. Accordingly, I would accept that the judge was obliged to put the issue of accident to the jury, whether or not counsel for the accused mentioned the matter. See R. v. Hopper [1915] 2 K.B. 431, at 435 per Lord Reading, C.J.; Woolmington v. Director of Public Prosecutions [1935] UKHL 1; [1935] A.C. 462, at 481-482 per Viscount Sankey, L.C.; and R. v. Thorpe [1998] VSCA 13; [1999] 1 V.R. 326 at [24] and the cases there cited.

60. On occasions in his argument, it seemed to me that Mr. Tehan was relying on "accident" in the wider sense that, although the applicant had fired intentionally, the shot was intended not to hit anyone, but was fired simply as a warning. This would, however, have involved a denial not of the actus reus, but rather of the mens rea; cf. Ryan, per Barwick, C.J. at 213. The distinction between will and intent was further emphasized in The Queen v. Falconer [1990] HCA 49; (1990) 171 C.L.R. 30, at 39-40 per Mason, C.J., Brennan and McHugh, JJ. I have no doubt that the question whether the applicant had the relevant murderous intent was clearly and correctly put to the jury by the judge, especially in passages from the charge quoted in the next paragraph.

63. During the charge, the judge told the jury on several occasions that murder is committed when a person kills another person by a conscious, voluntary act done with the intention of either killing that person or inflicting really serious bodily injury upon him and when the act is done without lawful justification or excuse. His Honour gave the jury instructions as to the elements involved saying -

"The next element the Crown must establish beyond reasonable doubt is that it was a conscious, voluntary act of the accused which brought about the death. It cannot, for example, be the action of a sleepwalker or an automaton where the mind does not accompany the act itself.

Next, the act which causes the death must have been carried out with the intention of either killing the person or causing really serious bodily injury to that person. You can see there are two aspects to this element. It can either be an act performed with the specific intention of killing another person or an act performed with the intention of causing really serious bodily injury to that person and from which death results.

An individual's intention may be deduced by a jury from the acts which are actually performed by that person, and from what that person might say, either at the time of the act or before or after the act was performed.

Finally, the killing must be effected without lawful justification or excuse. That expression refers to such matters as self-defence and legal provocation. It is a matter for you, but there does not seem to me - and this is a comment - to be any real dispute that the shot consciously and voluntarily fired by the accused caused the death of Paul Taga. What is in dispute is whether, at the time the shot was fired, the accused had the intention to kill or, alternatively, to cause really serious bodily injury to the deceased."

70. Later, dealing with self-defence, the learned judge repeated that this issue would only arise if the jury were satisfied that the Crown had proved beyond reasonable doubt that "the act of the accused in firing the weapon and causing Paul Taga's death was a conscious, voluntary act, that is, that the shooting was a deliberate act". On several occasions his Honour stated in the charge that the necessary intent for murder was that the jury should be satisfied beyond reasonable doubt that when the accused fired the pistol he intended either to kill the deceased, or, at the very least, to cause him really serious bodily injury.

73. Mr. Tehan's argument, as I understood it, was that the judge erred in these portions of the charge because his Honour said nothing about accident. He submitted that it was trite that in proving that a killing was a conscious and voluntary act without lawful excuse the Crown must necessarily disprove accident. He put it that an act is the result of an accident "if it was a consequence which was in fact not intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person"; see Kaporonovski v. The Queen [1973] HCA 35; (1973) 133 C.L.R. 209, at 231 per Gibbs, J. (although this was a case concerned with s.23 of the Queensland Criminal Code, as to which different issues of construction arise). Accordingly, he submitted that the judge should have directed the jury upon accident by defining its constituent legal elements and relating it to the proof of an intentional killing by a conscious and voluntary act. He placed particular reliance upon the fact that the judge had said that there did not seem to be any real dispute that the shot which caused the death of Paul Taga had been consciously and voluntarily fired by the accused, and in so doing had really taken the issue away from the jury.

76. The approach of a Court of Criminal Appeal considering a submission, such as the present, of alleged error in the judge's charge to the jury must plainly be to look at the charge as a whole and "to consider whether, having regard to the evidence and the way in which the trial was conducted, it was adequate to direct the jury's mind to the issues which the law required them to consider"; Williams (1990) 50 A.Crim.R. 213, per Badgery-Parker, J. at 218. In my view, when the charge in the present case is looked at in that manner, it can be seen to be wholly adequate and unobjectionable. The judge, in the passage from the charge last quoted above, did indeed tell the jury that there did not seem to be any real dispute that the fatal shot had been consciously and voluntarily fired by the accused. But the accused during his evidence on no less than four occasions had said that he thought he had "let a shot off in the air" or that he fired a shot which he thought was in the air. If the jury accepted the evidence of Margaret Tua and Robyn Sleeth, they were also entitled to conclude that the applicant had admitted on two separate occasions deliberately firing the shot. In the circumstances, it is not surprising that the judge said that there did not seem to be any dispute as to the conscious and voluntary nature of the act of firing the shot. But in any event his Honour's statement was said by him to be no more than a comment, and that the matter remained one for the jury. When his Honour told the jury that what was in dispute was whether the accused had the intention to kill or to cause really serious bodily injury to the deceased, his Honour was doing no more than correctly stating the issues that had been thrown up by the evidence and by counsel's addresses. It is particularly significant in this regard that no exception was taken by the experienced defence counsel, notwithstanding that shortly after making these comments, his Honour broke off the charge before going on to summarize the evidence, and invited counsel to raise any exceptions they had at that stage. Two matters were then raised by defence counsel, but neither of them bore on the point now argued by Mr. Tehan.

79. In my view the jury were correctly instructed as to the elements in the charge of murder and as to the necessary burden and standard of proof. The jury's verdict does, I think, inevitably show that the jury were satisfied beyond reasonable doubt that the applicant had killed the deceased by firing a shot in circumstances which excluded accident. The repeated warnings to the jury that they could not convict the applicant of murder unless they were satisfied beyond reasonable doubt of the applicant's intent (that is, either to kill, or to cause really serious bodily injury to, Paul Taga) also in my view make it impossible to contend otherwise. Ground 2 therefore fails.

82. Grounds 3 and 4 involved claims that the judge had erred by directing the jury that accidental discharge of a firearm may be regarded as an unlawful and dangerous act and otherwise in his directions to the jury upon manslaughter by an unlawful and dangerous act. The nub of Mr. Tehan's submissions under these grounds was that the judge's charge in relation to manslaughter by an unlawful and dangerous act excluded the notion of an accidental discharge of the firearm from being a relevant consideration as to whether the act was conscious and voluntary, and also equated a conscious and voluntary act to an unlawful and dangerous act. These submissions were not seriously pressed by Mr. Tehan. No relevant miscarriage of justice could have occurred because the jury did not in any event have to consider directions in relation to manslaughter unless they had first acquitted the applicant of murder. See R. v. Evans & Lewis [1969] VicRp 109; [1969] V.R. 858, esp. at 870-871 per O'Bryan and Little, JJ. The directions given by his Honour were in my view wholly in accordance with Wilson v. R. [1992] HCA 31; (1992) 174 C.L.R. 313, and, in any event, no exception was taken by defence counsel to his Honour's directions. These grounds also fail.

85. Under ground 1, Mr. Tehan submitted that the verdict was unsafe and unsatisfactory. He did not contend that there was no evidence upon which the jury could have convicted the applicant of murder, and accepted that the remaining matters upon which he placed reliance were really subsumed under ground 2. Mr. Tehan did make the not inconsiderable point that in the rapidly-moving situation in which the applicant was placed, to have shot the victim in the heart at a distance of 30 metres with a pistol raised and immediately fired would - if the applicant had been intending to kill - have required marksmanship of a very high order. The applicant had said that he had not previously fired the gun and there was certainly no evidence that he was familiar with its use. There was nonetheless in my view sufficient evidence upon which the jury would have been entitled to be satisfied beyond reasonable doubt that the applicant was guilty of murder. The applicant had pointed a loaded gun at those who were making a disturbance in the nearby street before he got into his car and left his premises. He then took the loaded gun with him in his car and drove out into Fairbairn Road in circumstances in which the jury would have been entitled to conclude that the applicant was seeking to punish the group who had been disturbing and frightening those present in his house. When his car came to rest in Fairbairn Road he got out of the car with the loaded gun in his hand and, if the evidence of Margaret and Daniel Tua was accepted, lifted and pointed the gun in the direction of the deceased and Kelly. The applicant himself said in evidence a number of times that he had intended to fire a shot into the air, even though he also claimed not to have fired or even to have heard the gun go off. But if the jury also accepted the evidence of Margaret Tua and Robyn Sleeth, they were entitled to conclude that the applicant had also admitted deliberately shooting the deceased and to reject the defences of self-defence, provocation and panic. The applicant himself said that at no stage during the evening's events did he lose his self-control. The fact that he had thrown away the weapon and bullets was also evidence which the jury could have taken into account in deciding that he had fired the gun voluntarily and with the necessary intent. An independent assessment of the evidence, therefore, leaves me in no doubt that the jury's verdict cannot be called unsafe and unsatisfactory: M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487.

88. I turn then to the application for leave to appeal against sentence. Mr. Tehan submitted that a sentence of 17 years' imprisonment with a non-parole period of 13 years was manifestly excessive for a murder which occurred in circumstances where the judge had found that the constant violation of the applicant's family home had had a lasting impact upon him. The applicant had had a background of familial abuse. The judge found that the applicant believed that at least some of the group then disturbing his premises were poised to enter his property and when the applicant drove into the intersection of Fairbairn Road and Warmington Road he still harboured feelings of fear. Reliance was placed on matters personal to the applicant which it was submitted called for a less severe sentence, matters such as his limited educational and work opportunities, his age, his lack of prior convictions for violence, and the closeness of his family unit. It was submitted that his prospects for rehabilitation were, as the judge said, excellent.

91. In response, Mr. McArdle for the Crown pointed to the fact that in his sentencing remarks the learned judge had made specific reference to each of the matters relied on by the applicant. There were also certain aggravating factors in the applicant's behaviour, such as that the applicant after leaving his home in his car had driven at the deceased and Kelly, at least intending to frighten them. He had then approached the group with a loaded pistol, in circumstances where the victim had done him no harm and was entirely innocent of the earlier disturbance. After the shooting the applicant had then threatened to shoot Margaret Tua and Daniel Tua.

94. In all the circumstances general deterrence was, as his Honour said, plainly an important sentencing consideration. There can, I think, be no doubt that the sentence was within the appropriate range, and accordingly the application for leave to appeal against sentence must also be dismissed.

102. I agree with Charles, J.A. I add some observations on ground 2 of the application concerning conviction.

105. The plea of not guilty put the element of the conscious, voluntary and deliberate nature of the act in issue. The issue therefore could not be withdrawn from the jury: Griffiths v. R. [1994] HCA 55; (1994) 125 A.L.R. 545 at 547. But the judge did not take that issue away from the jury. It is true that he made a comment (identified as such), the burden of which related to causation, but which indirectly said that there was no real dispute that the shot was consciously and voluntarily fired by the applicant. He had, however, earlier directed the jury that they were not bound by his comments, and, most importantly, he commenced his relevant remarks with the words, "It is a matter for you". Thus, whilst his own view may have been clear, he also made it clear beyond peradventure that the matter was for the jury. Judges charging juries frequently tell them that they will probably have no difficulty about a certain element as it is not really in issue, though whether it is made out is a matter for them. It could not be suggested that such an element is thereby withdrawn from the jury. The remarks in the joint judgment of the High Court in Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466 relate to criminal as well as civil trials. Their Honours stated that it was the responsibility of the trial judge to decide what the real issues were in a particular case and to tell the jury, in the light of the law, what those issues were. The larceny example which they gave is very strong.

108. The issue not having been withdrawn from the jury, the question remains whether the charge was adequate. Now, there was some evidence from the applicant which might have supported a view that the discharging of the pistol was accidental, that is, that it was not a conscious, voluntary and deliberate act. But there was much other evidence from him and others supporting the conclusion that the discharge of the pistol was a willed act on his part. Thus, although accident was not argued by the experienced defence counsel at trial, it was a "defence" open. However, in view of the weakness of the evidence and the fact that accident was not raised by defence counsel, a detailed exposition was not required. It is to be remembered that in the ordinary run of cases the voluntary quality of the deed may be inferred and is not in question (Ryan v. The Queen [1967] HCA 2; (1967) 121 C.L.R. 205 at 213; Griffiths at 549; and The Queen v. Falconer [1990] HCA 49; (1990) 171 C.L.R. 30 at 40-41) and that, where a person voluntarily, though in a panic, presses the trigger but with no specific intent either to do the deceased any harm or to frighten him the gun is voluntarily discharged (Ryan at 209 and 212). In the circumstances, a general direction as to the requirement of a conscious and voluntary act, which the judge gave twice, was sufficient. For a finding that the act concerned was voluntary - as well as one that it was done with the required intent - necessarily denies that it was accidental (Woolmington v. D.P.P. [1935] UKHL 1; [1935] A.C. 462 at 481-2; R. v. Mullen [1938] HCA 12; (1938) 59 C.L.R. 124 at 130, 136 and 137). Moreover, it may be said that in this case (unlike a case of duress) the directions on intent subsumed any directions on voluntariness.