R v Fowler [1999] VSCA 135

R v Fowler [1999] VSCA 135 - VSCA 1999 case summary — Zoe

[6]

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.

[30]

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.

[33]

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.

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Judgment (39 paragraphs)

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