Contemplation of Appellant
30 Moving to the second element, there were admissions in the ERISP to the effect that the appellant knew that Ton had a knife.
31 In relation to what was in his contemplation concerning that knife, the Crown case depended upon the following answers given in the ERISP:
"Q135. Why did you have the knife in your hand? A. Why? Just my friend, he, he just gave it to me. He goes, In case , you know?
Q.136 OK. But why did you have the knife in your hand when you were confronted by this man? A. 'Cause there's many of them and like, they were screaming, and I dunno if they have weapons or something too. I'm not sure.
Q.137 What was your intention when you had the knife in your hand? A. My intention? Just defend myself."
…
"Q.139 Did you have the knife out right from the theft or did you take it out, out -- A. Nah, nah, afterwards. I, I just like, after the theft I just ran. And like I took the knife out when like, when they, I confront them."
…
"Q. 147 And so Tan gave you the knife that cut this man? A. Yeah, he had like two there, so he had one, the old one so I took, took the other one.
Q.149 Did you see the knife that Tan had? A. No. He just goes, he put it in his sleeve and then, I dunno.
Q. 150 So how do you know that Tan had a knife? A. He told me you know, Hide it quick, I hide mine, where are you hiding yours? That's it."
…
"Q. 213 Why did Tan need to have a knife for? A. To have some reason.
Q. 214 Well what's that reason" A. Self defence."
32 Although some of the answers to these questions related to the purpose which the appellant had in mind, when using his knife, they were also relied upon as supporting an inference that he had contemplated a similar possible use by Ton of his knife.
33 It was the Crown case that, in context, the only reasonable inference open was that when using the expression "self defence", in the answer to Q.214, the appellant had meant the possible use of the knife by Ton to avoid being apprehended, and not for use in self defence in the legal sense.
34 The defence case, as pursued upon appeal, however, was that an inference was reasonably open that the appellant only had in contemplation the possible use of the weapon, by Ton, "in case" some circumstance arose justifying its use in lawful self defence. That use, it was suggested, may have related to something entirely unconnected with any robbery or unlawful conduct on the part of himself and Ton, for example if they were set upon by others in the course of their visit to the city.
35 Alternatively, it could have related to the possibility of someone applying excessive, ie unlawful force in trying to arrest them when they had committed an offence - ie in circumstances where they had become the victims of unlawful aggression, against which they were entitled to defend themselves.
36 Independently, it was submitted that the expression "self defence" did not necessarily involve the use of the knife to actually stab someone, but was also capable of extending to the brandishing of it, so as to frighten off an aggressor or someone minded to arrest either of them.
37 The drawing of an inference which was rationally consistent with the appellant's innocence, so far as this element was concerned, was supported, so it was submitted, by the spontaneous nature of the robbery enterprise, it being unlikely, so the argument went, that the appellant had time or occasion to contemplate whether Ton might use his knife to stab someone, or even what might happen after the bag was snatched. Additionally, it was put, it was important that there was no evidence of the appellant having known or suspected that Ton had used a knife, on any prior occasion, to stab someone.
38 These matters were fully canvassed before the jury. The critical question as to whether the appellant had the contemplation required in law to establish manslaughter was quintessentially one for them. It was not a question that fell for decision by reference to the words of the ERISP alone. That each man had a knife, and that the appellant had produced and used his weapon offensively, to resist a citizen's arrest, unerringly supported the inference which the jury must have drawn, in reaching its verdict, that the appellant contemplated the possible use by Ton of his knife, in order to stab someone. It is important in that regard that the crown did not have to prove hat he contemplated that it would be used in that way.
39 In approaching the question of competing inferences it is necessary to recall what was said by Mason CJ, Dawson and Toohey JJ in Knight v The Queen (1992) 175 CLR 495 at 503:
"… with respect, Young CJ was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open. There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance."
40 That question, in the context of the appeal there under consideration, their Honours observed could be:
"… rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit (the victim). In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses (see Chidiac v The Queen (1991) 171 CLR at 443-444,453, 462; Carr v The Queen (1988) 165 CLR 314 at 331) They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses. (see Chidiac at 452)"
41 The relevant test in relation to the ground relied upon, which was formerly tagged; "the unsafe and unsatisfactory ground", has moved on. Greater emphasis is now placed upon the review which the appellate court is required to undertake (M v The Queen (1984) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Fleming v The Queen (1999) 197 CLR 250 and R v Giam (1999) 104 A Crim R 416), it being accepted that "a doubt experienced by an appellate Court will be a doubt which a jury ought also to have experienced".
42 Due respect must, however, still be afforded to the jury decision. So it was that in M, Mason CJ, Deane, Dawson and Toohey JJ said (at 493), in a passage approved in Jones (at 451):
"… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to these considerations."
43 The test posed in Knight, concerning whether or not an inference or hypothesis consistent with innocence was open on the evidence, remains relevant. If this court were of the view, after making its own review of the evidence, that such an inference or hypothesis was reasonably open, then it would be necessary to quash the conviction, in accordance with s 6 of the Criminal Appeal Act 1912.
44 Applying the common sense approach, which is to be attributed to the determination, of that question, I am not persuaded that there was reasonably open an inference consistent with the appellant's innocence, or that as a result the jury ought to have entertained a reasonable doubt. The only sensible or rational inference open, from the answers in the ERISP, from the circumstance that each offender carried a knife and used it to resist arrest, is that their possible use to stab someone for that purpose was very much in the appellant's contemplation. If a knife is produced in order to deter a citizen, or a police officer bent upon effecting an arrest, there is inevitably a substantial risk that it could be used to stab that person, since merely waving or brandishing it could never be confidently assumed to be enough.
45 I do not mean by this observation to suggest that the question is to be decided by reference to an objective test. What was in issue was the subjective contemplation of the appellant: McAuliffe v The Queen (supra). However, in deciding that question it was open to the jury to draw an inference as to what was in his mind, by reference to the surrounding circumstances.
46 The Crown needed to prove, in this case, that the accused had in contemplation a substantial or real risk of Ton using his knife to stab a person minded to effect an arrest - either deliberately or inadvertently in the course of a struggle. In this regard, it is of significance that the jury acquitted the appellant of the offence of murder, which would have required proof that he had contemplated the use of the knife with the deliberate intention of killing or causing grievous bodily harm, but convicted him of manslaughter by an unlawful and dangerous act, for which the Crown only needed to prove that he contemplated its possible use to stab someone.
47 The alternative possibilities advanced by the appellant were to my mind fanciful, in the real life setting of this case. It is unrealistic to imagine any situation in which he could have contemplated the use of the weapon by way of lawful self defence, in circumstances where the co-offender was facing arrest for an offence of robbery committed in a public place. It is equally hypothetical and contrary to common sense, to suggest, in this case, that all he had in contemplation was the carriage of knives, not for the purpose of preventing apprehension for the kind of offence which they had in mind, but in case they were innocently set upon for no good reason, and as a result needed a weapon to defend themselves.
48 The carriage of a knife is unlawful, and in my view there was no room for attributing to the appellant, subjectively, any contemplated use by Ton of his weapon, which was consistent with his innocence of the charge of which he was convicted. I would accordingly dismiss the appeal against conviction.
49 In those circumstances, I find it unnecessary to consider whether the verdict could properly be sustained upon another less onerous basis which was raised, not at trial, but in the course of the hearing of the appeal. That alternative involved the proposition that manslaughter would have been proved had the appellant contemplated that Ton might do an unlawful and dangerous act by brandishing the knife, otherwise than in self defence, in order to frighten away someone attempting to apprehend him, as distinct from having contemplated that Ton might do an unlawful and dangerous act by stabbing that other person.
50 This would potentially require consideration of