R v Mogg [2000] QCA 244

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - CAUSATION

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE AND INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - whether verdict was unsafe or unsatisfactory -which blows caused the facial injuries leading to death a matter for properly instructed jury to determine - ample evidence from which jury could be satisfied that the facial injuries occurred outside the house - whether verdict was unsafe or unsatisfactory as no reasonable basis for excluding the operation of provocation under s 304 Criminal Code

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - OBJECTIVE TEST - whether failure to identify for the jury the evidence of provocative conduct and its effect upon the appellant - failure to direct the jury as to the relevance of the appellant's youth in determining whether an ordinary person of the appellant's age would have reacted to that level of provocation - retrial ordered

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE - summing up consisting mainly of abstract statement of law followed by lengthy summary of evidence - failure to provide jury with sufficient assistance on issues raised - observations of "guiding rule" and other requirements in summing up - failure to relate issues to relevant law and facts - failure to outline main arguments of counsel

CRIMINAL LAW - EVIDENCE - PROPENSITY OF DECEASED TO DEAL IN AND USE DRUGS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - whether evidence of deceased's drug conviction and of police surveillance of deceased admissible - bad character of deceased irrelevant to issue of self-defence - reservations concerning R v Ellem (No 1), Re Knowles and R v Gibb and McKenzie expressed by Thomas JA

Crimes Act 1900 (NSW), s 405AA

Alford v Magee [1952] HCA 3; (1951-1952) 85 CLR 437, considered

Domican v R (1991-2) 173 CLR 554, considered

Farrell v R (1998) 72 ALJR 1292, considered

Holland v R (1993) 117 ALR 1993, considered

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, considered

Nembhard v R (1982) 74 CrAppR 144, considered

O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566, considered

R v Charles (1979) CrAppR 334, considered

R v Ellem (No 1) [1995] 2 QdR 542, considered

R v Gibb and McKenzie [1983] VicRp 78; (1983) 2 VR 155, considered

R v Hector [1953] VicLawRp 72; (1953) VLR 543, considered

R v Jellard [1970] VicRp 98; (1970) VR 802, considered

R v Knowles [1984] VicRp 67; (1984) VR 751, considered

R v Masters [1987] 2 QdR 272, considered

R v RNS (1999) NSWCCA 112, 7 June 1999, considered

R v Veverka (1978) 1 NSWLR 478, considered

RPS v The Queen [2000] HCA 3; (2000) 74 ALJR 449, considered

Stingel v R [1990] HCA 61; (1990) 171 CLR 312, considered

Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: The appellant was convicted of murder in the Supreme Court at Townsville on 3 September 1999. His co-accused Shyers was found not guilty. He appeals against his conviction on a number of grounds.

[2] The prosecution case was that the appellant had inflicted the injuries causing the death of the deceased and that Shyers had aided him by encouraging him under s 7(1)(c) of the Criminal Code.

[3] One of the grounds of appeal is that the verdict is unsafe on the evidence. It is therefore necessary to review the evidence in some detail.

[4] On the evening of 13 September 1998, the appellant, who was 18 years old, was living with his girlfriend Shyers, who was 24 years old, in her house. After preparing a meal, he lay down on the bed. He heard a noise from the kitchen and saw the deceased, a former boyfriend of Shyers. The deceased was wearing surgical gloves and was carrying a customised small calibre rifle which was modified by the addition of a homemade silencer made from steel wool.

[5] Earlier in the evening Shyers borrowed some cheese for dinner from a neighbour, Mr Ralph, and was returning the remainder when the deceased entered her home. She came home and entered the bedroom; the deceased pointed a rifle at her.

[6] The appellant, who did not give evidence, told police that the deceased said, "Youse are going to die tonight." "Don't move or you'll get it. You're going to get it anyway tonight and this bitch here's the cause of it." Shyers bent to pick up her dog and the deceased discharged the gun; Shyers screamed. Although the bullet was not found, metal shavings, fibres and a spent cartridge case were located, supporting the appellant's claim that a bullet had been fired exiting through the open window. The appellant grabbed the rifle with his left hand and wrestled the deceased to the bed. During the ensuing struggle the appellant kneed the deceased and the deceased grabbed Shyers with his legs and feet. The appellant grabbed the rifle and struck the deceased at least once in the face with the trigger area of the rifle; he tried to hold him down around the neck and the deceased bit him. The appellant and the deceased struggled violently on the bed. Shyers broke free and ran to a neighbour, Mr Mark Labrum, to get assistance; this was not forthcoming. Mr Ralph heard the commotion and came over to assist. They eventually subdued the deceased, tied his hands with rope and carried him outside; he bumped his head on the step but it "wasn't a real hard hit". The deceased was on the ground and went to get up; the appellant pushed him down. Ralph and the appellant placed him in the car.

[7] The appellant cut open the deceased's knapsack which contained a 15 inch long knife and two pairs of handcuffs. Ammunition was later found in the deceased's jeans pocket.

[8] Mr Ralph had been drinking beer with schnapps from about midday until about 4.30 pm and then drank heavy beer until about 8.30 pm when this incident occurred. He was affected by alcohol but "not falling over drunk". His grasp of the sequence of events was not great because of the amount of alcohol he had consumed. He assisted the appellant to restrain the deceased. Shyers tried to cut the strap securing the rifle to the deceased with a barbeque spatula, accidentally cutting Mr Ralph's hand and causing it to bleed. Ralph did not see the appellant strike the deceased with the gun. The deceased continued to struggle as he was dragged from the bed; the appellant hit him twice in the face with his fist. The appellant and Mr Ralph carried the deceased from the house; the deceased struggled and was dropped onto a step. He attempted to stand up but was kicked in the hip and forced back down to the ground by the appellant who was barefooted throughout the evening. The three eventually secured the deceased's hands; Ralph was unsure whether they were tied at the back or front; they were tied behind when he was put in the vehicle at Shyers' suggestion so that he could be taken to hospital. The appellant punched the deceased once or twice in the head when he was on the ground prior to placing him in the car. Ralph did not notice any obvious facial injuries; he could not say whether or not the deceased was bleeding from the front of his face; his recollection of detail, for example of the deceased's facial features, was poor; he had no recollection of the appellant forcefully pushing the body further into the vehicle or delivering a series of punches to the deceased whilst he was in the vehicle. He viewed the incident as a life and death struggle.

[9] Mr Dodwell, a visitor at neighbour, Mark Labrum's home, had consumed only two beers over a four hour period. At about 9.10 or 9.15 pm, Shyers came over requesting "manpower" and then left. He and his friends moved into the backyard to set off firecrackers. He saw a person lying motionless on his side with the appellant and another person overpowering him; he went away for a short time and when he returned he saw the appellant hit the person in the back of the car in a fast repeated downward striking punch motion at least five to six times with enough force to shake the car. The other man restrained the appellant and he heard Shyers, who was sitting in the front of the car, say, "Stop. That's enough." He did not actually see the punches connect, nor the appellant's fist or arm action. He saw some sharpness of movement from the appellant and saw the movement of the car; from this he inferred punches were delivered. At committal and in cross examination he said that his observations were consistent with someone attempting to push the person into the car. The area was poorly lit but he had a clear line of vision despite nearby shrubs.

[10] Darren Labrum was holidaying from New Zealand with his brother, Mark. He had been drinking during the afternoon but was not affected. He, too, did not take Shyers' request for assistance seriously. He heard some shouting and noises next door and looked over to Shyers' yard; he saw the appellant kicking and punching a motionless body with hands bound by rope or nylon behind the back lying on the ground. He did not know which part of the body the seven to ten kicks or seven to fifteen punches contacted; the punches and kicks were as hard as physically possible. He heard no noise coming from the body. He saw Shyers drive up in her car with the tailgate down; the appellant and another man (Ralph) bundled the body into the vehicle with quite a bit of force. The appellant then punched the body at least seven to ten times. Shyers yelled out something like, "Let's go." and they drove off. He did not know what part of the body those punches contacted; his view was obscured by the tailgate but the punches connected with something with enough force to make the car jump up and down and rock. He forgot to mention the punches to the body on the ground or any movement of the car in his statement to police. He could see the shape of a fist and the movement was too forceful to be merely pushing into the car. Although there was no external lighting there was some artificial light from Shyers' house and from his brother's house.

[11] Mark Labrum consumed about six pots of mid strength beer during the afternoon, finishing at about 8 pm. Shyers came over about 9 pm in an agitated and incoherent state requesting "manpower" and wanting the men to flex their muscles in front of a window; he did not take her seriously. He went to the back deck to set off a fire cracker brought by Darren from New Zealand. Mark heard some yelling and commotion in the next yard and looked over the fence. His view was unimpaired and about eight to nine metres away he saw Shyers, the appellant and another male (Ralph). He saw the appellant inflict about six blows with "pretty intense" force on the torso of a silhouetted figure on the ground slumped over in foetal position; he demonstrated a downward punch with a clenched fist. He was not 100 per cent sure it was the appellant who inflicted these blows. The lighting was dim but there was enough light to make out what was going on. The incident occurred over about 30 seconds to a minute; the punches were delivered over a period of ten to twenty seconds and were more or less consecutive. He told police, "It was hard to see the figure on the ground because of the foliage on the other side of my fence. I could tell, however, that someone was on the ground being beaten because of the sounds and the hits and because I could see a rough silhouette of a person on the ground." At committal he said that Shyers also punched at the body on the ground; at trial he said Shyers was acting aggressively towards the body and struck out at the body in an aggressive manner, without contact.

[12] Shyers had earlier taken the gun to the home of another neighbour, Mr McIllvenny whom she asked for assistance; she was very agitated and said that someone was trying to kill her. Mr McIllvenny secured the gun in a shed on Shyer's property where it was later found by police.

[13] The appellant and Shyers drove off in their Mitsubishi station wagon with the deceased in the back; Mr Ralph returned home. The deceased's motorbike was parked a short distance down the road and the appellant and Shyers stopped near it. The appellant told police that he opened the back of the station wagon and searched the deceased for keys to the motorbike and then searched for a tool with which to start the motorbike; the deceased fell from the back of the open vehicle; the appellant lifted him back into the car with the assistance of Shyers and then returned to his house to get a screwdriver to start the motorbike.

[14] This incident was observed by Mr and Mrs Cullen who were watching television in their home when they heard a loud bang outside: Mr Cullen saw a man and a woman get out of the car and look at something in the back; the hatch was up. A dark heavy object had half fallen out of the vehicle and they were having difficulty lifting it back. They eventually succeeded but then had trouble shutting the tailgate. The male kicked at the object in the car three or four times with some force. He said, "I'll go get a screwdriver" and ran up the road. The female successfully closed the hatch and went to the driver's seat; she appeared to be talking to someone else in the car softly but he could not hear what was said. The male person returned after about two minutes; the woman got out of the car; they seemed to kiss or hug. After some difficulty he started the motorbike and drove off; the woman returned to the car and drove off; the motorbike then followed the car. The whole episode took ten to fifteen minutes.

[15] Mrs Cullen saw a stain on the road and a plastic lens cover of a parking light; she indicated this to police. The light matched the back interior light of the carrying area of the Mitsubishi station wagon. The stain responded positively to a presumptive test for blood and may also have contained vomit. The blood was consistent with that of the deceased.

[16] Followed in the car by Shyers, the appellant rode the motorbike to a friend's home intending to pick it up next morning. Shyers and the appellant then drove into town and discussed whether it would be better to take the deceased to the police station rather than the hospital. They stopped at a cinema to pick up cigarettes but it was closed; they went to a newsagent and then decided to take the deceased to the police station. Before they could do so they were stopped by police officers at about 10.15 pm for random breath testing. Shyers told police that they were on their way to the police station and had just been assaulted with a gun.

[17] Police officers saw the deceased lying in the foetal position on his righthand side with his hands behind his back entangled in rope, half covered with the blanket-type material; a substantial amount of blood was coming from his face and nose area; there were no signs of life.

[18] Government medical officer Dr Fisher examined the body in the rear of the vehicle and noted that rigor mortis had set in. Rigorous activity prior to death may result in earlier than usual onset of rigor mortis and no accurate assessment could be made as to the time of death. There was an obvious injury to the upper lip covered in congealed blood and smelling of vomit. The only injuries which bled significantly were the facial injuries. It was "perfectly possible" that these injuries were caused by blows with the gun as described by the appellant to police. He would be surprised if those injuries had been caused by two blows with a fist but "it wouldn't be beyond the realm of possibility". Had the deceased been dropped on the edge of a step, hitting his face, such injuries "could be possible". Those injuries were unlikely to be caused by a fall onto bitumen as there were no gravel traces or marks. It was unlikely, although not beyond the realm of possibility, that the facial injuries were caused by a barefooted kick.

[19] Dr Ansford conducted the postmortem examination. He attributed the cause of death to a combination of the injuries to the lip and face and possibly the nose leading to bleeding into the air passages. The actual fracture of the upper jaw may have also blocked the upper air passages; the aspiration of blood and vomit was a highly significant factor; the weight of the lungs was approximately two and a half times their usual weight, suggesting the deceased must have aspirated, probably before he was placed in the foetal position in which he was found. Although there was evidence of compression of the neck and damage to the liver with bleeding into the abdominal cavity which potentially can be fatal, the critical factor in this case was likely to be the aspiration and the compressing of the air ways by the damage to the face.

[20] He would have expected immediate profuse bleeding from the facial injuries. The injury to the lip and jaw could potentially have been caused by one very severe blow or by a series of blows of lesser force to the same area. The facial injuries, especially the broken jaw, would probably need more force than that of a single punch, a kick with a bare foot or a fall from the back of a station wagon onto bitumen or the tailgate. The striking of the deceased forcefully in the face with the gun was a potential and possibly even a likely cause for the facial injuries to the nose, lip and upper jaw; the gun has the right shape and irregularities to cause such an injury.

[21] The only injuries which were capable of producing sufficient blood to spatter the sheet on Shyers' bed were the deceased's facial injuries. The blood stains on the deceased's shirt were most likely caused by blood flowing from the facial injuries. Had the injuries to the face occurred in the car, blood spatters could be expected. The blood pattern found on the sheet in the bedroom was generally consistent with the expected spatter from the facial injuries, although it would probably have been finer. Dr Ansford conceded he was not an expert on blood spatter patterns.

[22] Ballistics officer Neville was unable to make any relevant comment about the blood spatter on the sheet. He noted some blood spots on the tailgate area and a larger blood-soaked area inside the car; both were consistent with the deceased simply bleeding. There was no evidence as to whether or not blood was found in Shyers' backyard.

[23] Blood taken during the autopsy gave a reading of .27 milligrams per kilogram of amphetamine and 1.4 milligrams per kilogram of methylamphetamine. This extremely high level of amphetamine and methylamphetamine in the deceased's blood can cause violent, psychotic behaviour and sometimes enormous strength, depending on the level of tolerance.

[24] The deceased had made threats to kill the appellant and Shyers, to burn down their house and had been generally aggressive and threatening towards them on a number of recent occasions.

[25] It is convenient to deal firstly with the ground of appeal which claims the verdict should be set aside as unsafe and unsatisfactory.

[26] The prosecution case was conducted on the basis that the appellant either unlawfully did an act causing the death with an intention to kill or to do grievous bodily harm (murder) or that the appellant unlawfully caused the death (manslaughter).

[27] It was conceded at trial by the prosecutor that he could not rely on evidence of any injuries inflicted prior to the deceased being tied up as causing the death; the prosecution could not negative self defence or defence of a dwelling house prior to this time. To prove the case against the appellant, the prosecution had to establish that the appellant did an act or acts after this time which caused the death and that those acts were unlawful.

[28] The evidence demonstrates that the cause of death was probably the bleeding into the air passages caused by the facial injuries, leading to aspiration. The applicant submits that there was insufficient evidence that these injuries were caused by the appellant outside the house to exclude beyond reasonable doubt the hypothesis that the injuries were caused inside the house.

[29] The evidence supporting the finding that the facial injuries occurred inside the house was the blood found on the sheets and the appellant's version of events given to police that he hit the appellant in the face with the gun inside the house. The appellant did not suggest to police that the blow with the rifle to the face caused significant facial injuries or bleeding. The medical evidence was that the facial injuries may well have been caused by such a hit, but the injuries were also consistent with one very severe blow or a number of lesser blows to the same area; the medical evidence is as consistent with the injuries occurring outside the house. Ralph was unable to say whether the appellant hit the deceased with the gun in the house or whether the deceased's face was bleeding in the house. Dr Ansford's evidence on blood spatters tended to support the appellant's claim but Dr Ansford said on a number of occasions he was not an expert on blood spatters; the jury were not obliged to accept Dr Ansford's evidence. Nor were they obliged to accept the truthfulness of the appellant's claims to police. The evidence as to the position and pattern of the blood did not assist significantly in determining where the injuries to the face occurred. The facial injuries included a broken upper jaw. The appellant told police that after he hit the deceased with the gun, the deceased bit him. This seems unlikely if the blow with the gun broke the deceased's jaw.

[30] There was a substantial body of evidence from Shyers' neighbours that the appellant inflicted upon the deceased a large number of forceful kicks and punches on the ground outside Shyers' house and after he had been placed in the station wagon. Dodwell saw Ralph restrain the appellant and heard Shyers say to him, "Stop. That's enough." Blood was found on the roadway near the Cullens' house where the appellant was again seen to inflict considerable force on the appellant.

[31] Whilst there was a body of evidence supporting the hypothesis that the facial injuries occurred inside the house, there was also ample evidence from which the jury could be satisfied that the facial injuries occurred outside the house. If they rejected the appellant's account to police and accepted the evidence of Dodwell and the Labrum brothers there was evidence from which they could conclude the facial injuries were inflicted outside the house, that those injuries caused the death and that they were committed with an intention to kill or do grievous bodily harm.

[32] The applicant also claims that the verdict was unsafe and unsatisfactory as there was no reasonable basis for excluding the operation of provocation under s 304 Criminal Code; the violence of the appellant outside the house was indicative of a loss of self control in response to the violent outbursts of the deceased; an ordinary 18 year old placed in those extraordinary circumstances may well have acted as the appellant did.

[33] I am not persuaded that a properly instructed jury once satisfied beyond reasonable doubt that the appellant struck the deceased outside the house causing injuries leading to his death with the requisite intent, could not also have been satisfied beyond reasonable doubt that the appellant was not acting under provocation under s 304 Criminal Code. Again, this is fundamentally a jury question which was reasonably open if they found the facts outlined earlier. The verdict was not unsafe or unsatisfactory on either of these grounds but the latter ground raises the issue as to whether the jury was properly instructed on provocation.

[34] The learned trial judge gave a very brief direction as to provocation under s 304 Criminal Code. He read the section to them and told them that it was only relevant for their consideration if they were first satisfied that the elements of murder had been made out. He added:

"The relevant considerations under the section then are these: did the [appellant] do what he did as a result of a sudden loss of self control brought about by the actions of the deceased? Might an ordinary person - that is a person having ordinary powers of self control - have lost his power of self control in those circumstances and acted as the [appellant] did?

In considering this issue, you would look at the acts which are said to constitute the provocation, but you would look at them not in isolation but in the light of events that might have occurred earlier or any relationship which may throw some light upon the nature of any such provocation."

His Honour reminded them of the onus and standard of proof as to provocation.

[35] The judge failed to identify for the jury the evidence of the provocative conduct and its effect upon the appellant. He also failed to direct the jury as to the relevance of the appellant's youth in determining whether an ordinary person of the appellant's age would have reacted to that level of provocation and similarly lost control.

[36] In Stingel v R [1] the High Court held that

"... the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult."

[37] The judge made no reference to any of these matters in his direction. Whilst these matters are ordinarily taken into account in assessing the first consideration, the gravity of the provocation, they are not usually relevant in determining the second consideration, whether the provocation was sufficient to cause an ordinary person to lose his or her self control and to do the act causing death. But as the High Court said in Stingel:

"There is, however, one qualification which should be made to that general approach. It is that considerations of fairness and common sense dictate that, in at least some circumstances, the age of the accused should be attributed to the ordinary person of the objective test.[2]

... the approach may be justified on grounds other than compassion, since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness.

There is, we think, adequate justification in policy, reason and authority for taking age, in the sense of immaturity, into account in setting the standard of self control required by reference to the ordinary man: see Camplin [1978] AC at pp 717-718, 721-722; Reg v Romano (1984) 36 SASR 283 at pp 288-289; Hill [1978] AC at p 718.

A more difficult question is whether the age of the accused should be attributed to the ordinary person in a case such as the present where the accused is a young adult in his or her late teens: see Age of Majority Act 1973 (Tas), s 3. As a broad generalisation, it is true to say that the powers of self control of a young adult of 18 or 19 years are likely to be less than those of a more mature person. On balance, it seems to us that the preferable approach is to attribute the age of the accused to the ordinary person of the objective test, at least in any case where it may be open to the jury to take the view that the accused is immature by reason of youthfulness. ...

In the light of what has been written above, the effect of the threshold objective test ... can be stated in summary form. It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self control within the limits of what is ordinary (for a person of that age) to do what the accused did."[3]

[38] The defence of provocation was rightly left to the jury in the circumstances: the appellant and his co-accused, Shyers, had been viciously attacked in their own home by a man armed with a gun which he discharged; he was wearing gloves and acting irrationally; the man had made threats against them in the past; it took three people to subdue him. The jury would have been entitled to conclude that the prosecution had not negatived the reasonable possibility that the deceased's conduct was capable of causing an ordinary person to lose self control and to act as the appellant did; there was sufficient evidence to raise the issue that the appellant had been deprived of self control. The appellant was only 18 years old; the attack by the deceased was bizarre and life threatening; his age and immaturity were relevant factors in determining both the gravity of the provocation upon him and whether the conduct was sufficient to cause an ordinary 18 year old to lose self control and kill the deceased.

[39] No redirection was sought but that is not fatal to the appellant's argument, the question being whether the appellant has been deprived of the chance of an acquittal through the misdirection.[4]

[40] The omission to give the direction in accordance with Stingel has deprived the appellant of a real chance of acquittal of murder; whether or not the appellant was acting under provocation is a matter for a properly instructed jury.

[41] As there must be a re-trial, it may be helpful to deal with a number of other grounds of appeal.

[42] The appellant also submits that the summing up was generally inadequate: it did not sufficiently assist the jury as to the real issues raised on the evidence so as to enable them to properly discharge their duty.

[43] The summing up extended over 113 pages of transcript and commenced at 2.52 pm on 2 September 1999, the fifth day of the trial; the court adjourned at 5.43 pm and the summing up resumed the next morning at 8.57 am, concluding at 9.46 am. During the first three and a half pages of recorded transcript the judge dealt with the usual preliminary issues including the role of judge and jury, the burden and onus of proof, circumstantial evidence, taking of the verdict and joint trials.

[44] His Honour gave brief legal directions as to the elements of the offences of murder and manslaughter, self defence and defence of a dwelling house and provocation, the last of which I have dealt with in detail earlier in these reasons. His Honour then invited the jury to consider the issues in a logical order. The entire directions as to the law, which covered issues relating to both the appellant and Shyers, were recorded in 19 and a half pages of transcript and made no reference to how the law applied to the facts and issues in the case.

[45] The next 89 pages of the transcript of the summing up recorded a fair and detailed precis by the judge of the evidence given by each witness in the case. He made a general reference to the video-taped interview between police and the appellant, telling the jury they would have that exhibit with them in the jury room and could refer to it as much as they wished; the judge made no mention of anything said by the appellant during the interview.

[46] The judge then reminded the jury that they could not find the appellant guilty in respect of anything done before the deceased was tied up; they would have to acquit the appellant if they were not satisfied beyond reasonable doubt that the death was caused by some force inflicted after that time. The judge then gave a brief summation of the relevant legal issues for this appellant which was recorded in less than one page of transcript. He gave a similar summation of the law in respect of Shyers and invited the jury to consider their verdict.

[47] During the summing up the jury requested to have a copy of "the suggested steps to be followed in writing - murder, manslaughter, grievous bodily harm, provocation, effective defence, assault". The judge, with the concurrence of counsel, provided the jury with a 14 page transcript extracted from the summing up,[5] commencing with the judge's directions as to the elements of the offence and concluding immediately prior to the judge's suggestion as to the order in which they might consider the issues.

[48] At 12.08 pm the judge gave a redirection reminding them of the importance of the timing of any violence or force which they found the appellant had applied and which caused death; in respect of any such force they must consider self defence and defence of a dwelling. The jury again retired at 12.16 pm; they delivered their verdict at 9.50 pm.

[49] The learned judge referred to neither the defence nor the prosecution case; nor did he mention in the lengthy summing up anything said by the appellant to police. The trial was not unusually long; the detailed summary of the evidence given does not seem to have been necessary, nor was it helpful in isolating the real issues in the case for the jury.

[50] Section 405AA of the Crimes Act 1900 (NSW), of which there is no Queensland equivalent, provides that a judge need not summarise at the end of a criminal jury trial the evidence given in the trial if the judge is of the opinion that in all the circumstances the summary is not necessary. In Domican v R[6] the High Court considered that section and noted:

"Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury."[7]

[51] In R v RNS [8] the New South Wales Court of Appeal observed that the trial judge dispensed with summarising the evidence and noted:

"Provision is made in s 405AA Crimes Act for a trial judge to dispense with a summary of the evidence. That provision does not permit the trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial judge of the obligation to sum up the respective cases made by the Crown and the accused; R v Condon (1995) 83 ACrimR 335 at 347; Reg v Zorad (1990) 19 NSWLR 91." [9]

[52] The High Court has most recently considered the question of judicial instructions to juries in criminal trials in RPS v The Queen:[10]

"... it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."

[53] Mr Byrne QC, who appears for the respondent in this appeal, fairly conceded that it is ordinarily, and was in this case, necessary for the judge to remind the jury of the arguments of counsel. Mr Byrne also candidly conceded that the lengthy extract from the transcript dealing with matters of law which was supplied to the jury would be more likely to confuse than assist. Mr Byrne did not attempt to support the summing up in its present form.

[54] The onerous duties of a trial judge will ordinarily include identifying the issues, relating the issues to the relevant law and the facts of the case and outlining the main arguments of counsel. This should have been done in this case but was not; this too may have deprived the appellant of the chance of an acquittal and in itself also warrants a retrial.

The evidence of the deceased's convictions and outstanding charges

[55] The appellant sought to lead evidence from the investigating police officer of the deceased's prior drug convictions, that he had been charged with other offences relating to amphetamines and that he was the target of a major covert Drug Squad operation.

[56] The learned trial judge did not allow the appellant's counsel to elicit that evidence as there was nothing before the court to show the appellant was aware of those matters and had acted on them. The judge relied on R v Masters.[11] Masters was charged with murder; he went to the deceased's house to confront him carrying a stick of bush timber; he believed the deceased to be a violent man, bigger and more solid than he. He sought to lead evidence to establish his reasons for that belief arising from information he had been given that the deceased was a heroin dealer and user who had severely beaten other people in the past. On appeal, the evidence was held to be admissible as relevant to Masters' state of mind. Thomas J (as he then was), with whom Andrews CJ agreed, said:[12]

"One may have some reservations about the evidence of knowledge of the deceased's drug associations and one suspects that the true forensic purpose of such evidence was to blacken the deceased rather than to explain any specific fear on the part of the accused. However, if it was capable of supporting his fear of a violent reaction it was admissible. There can of course be no doubt that specific evidence supporting the accused's belief as to the physical fighting prowess of the deceased was highly relevant and should not have been excluded."

[57] The appellant has referred us to R v Ellem.[13] Lee J in a single judge decision ruled that where self defence was raised as a defence to a charge of manslaughter, evidence of the deceased's general reputation for violence was admissible to show whether it was more likely that he was the aggressor, regardless of the knowledge of the accused as to that reputation. A similar approach has been adopted in Victoria: see R v Knowles,[14] R v Gibb and McKenzie,[15] and R v Hector.[16]

[58] The appellant does not come within the Masters principle because there was no evidence before the court that the appellant knew of and was influenced by the deceased's drug convictions and outstanding charges.

[59] Nor did he come within Ellem's case in that the application to cross examine related solely to drug convictions and to unproved charges. The appellant did not establish that the convictions for unparticularised drug offences established a general reputation for violence. As to the unproved charges, it could not fairly be said the fact that the deceased had been charged with offences involving drugs or amphetamines and of which he remained innocent until proven guilty demonstrated a general reputation for violence. By way of contrast, there was evidence properly before the court of the deceased's threats to the appellant and Shyers.

[60] It is worth noting that the evidence of the deceased's high levels of amphetamine and methylamphetamine in his blood and the potential reaction caused by such high consumption of drugs was before the jury; the evidence of prior use of those drugs by the deceased may have suggested a lesser reaction because of a higher level of tolerance.

[61] In the circumstances, the learned primary judge correctly refused to allow the evidence to be given.

[62] For the reasons given earlier, the appeal must be allowed and a retrial ordered.

[63] THOMAS JA: The evidence given in this trial has been canvassed by the President whose reasons I have had the advantage of reading. I agree in general with what the President has written and will state my own further conclusions.

Whether the conviction was "unsafe and unsatisfactory"

[64] The appellant's main submission is that the evidence fails to exclude the conclusion that death was caused by a lawful act of self-defence. The initial hostilities were fairly described as a life and death struggle, and it was rightly conceded by the Crown that self-defence could not be satisfactorily excluded in relation to any injury inflicted prior to the time when the deceased was tied up. In support of the appellant's case reference was made to Dr Ansford's evidence describing the striking of the deceased with the gun as being a "good explanation" for the fracture of the upper jaw which was probably an important factor in the leaking into and blockage of the air passages and asphyxiation by blood and vomit. In short the critical factor leading to death may have been asphyxiation and compression of the airways caused by the injury to the face during the initial onslaught.

[65] There was however a substantial body of evidence of violent blows being administered by the appellant to the deceased after he had been subdued and tied up. Three separate incidents are identifiable in this evidence, namely, punching and kicking on the front lawn outside the door, further punching when the deceased was put into the vehicle shortly after, and punching and kicking near the home of Mr and Mrs Cullen when the deceased apparently fell out through the tailgate area of the vehicle and was forcibly put back in.

[66] The evidence concerning those subsequent incidents comes from many sources. It varies considerably between the prospective witnesses. It was essential that the jury's attention be focused upon the acts of violence subsequent to the tying up, and in particular upon those which were capable of causing the death. Unfortunately the learned trial judge gave the jury no assistance at all in this critical area. The consequence of this will be later considered, but the present question is whether the evidence as a whole was such that the conviction was unreasonable or could not be supported having regard to the evidence[17].

[67] The evidence includes statements that the appellant was seen to be kicking and punching a motionless body "as hard as physically possible" (on the lawn outside the door), and that violence administered inside the vehicle was also of a very violent kind. There was, of course, evidence from other witnesses describing the violence as less severe, but there was evidence which a properly instructed jury could accept as sufficient to substantiate a finding that these blows caused the death and justified a verdict of murder. In relation to the question of intent the Crown case was to some extent supported by the conduct of the appellant in removing the deceased's motorcycle from the area and the length of time while he and Ms Shyer drove with the seriously injured body of the deceased to places other than the hospital.

[68] In my view the case against the appellant does not fail on the basis of inadequacy of the evidence or unreasonableness of the verdict.

[69] In the main the summing up consisted of two parts. Firstly there was a statement of the legal principles that might need to be applied by the jury, and secondly an extensive summary[18] of the evidence of all the witnesses, one by one in the order in which they had been called.

[70] There was no analysis of the particular acts of violence mentioned in the evidence, or of the injuries that such particular acts could have caused. In a case like this where it was conceded that violent acts up to a particular point must be regarded as justifiable, and where criminal liability could only attach to acts proved after that point, some guidance was necessary as to the acts which might reasonably qualify as the basis for a conviction. No mention was made by his Honour of the Crown's concession in relation to the earlier acts until very late in the summing up, that is to say well after completion of summing up on the law and after presentation of the summary of evidence. No particular guidance was offered on the different result that might follow according to whether one or other of the witnesses was preferred or whether one or other of the blows or incidents was responsible for the injury or injuries that caused death. There was no mention of the submissions of Crown or defence. There was no mention of the appellant's version of events except a general reference to the videotaped interview with police and in intimation to the jury that they could refer to it as much as they wished. Whilst the summing up was even handed and whilst the issues of self defence and provocation were identified, the failure to refer to the defence submissions makes it difficult to be satisfied that his Honour met the requirement "to put fairly before the jury the case which the accused makes" and the need to remind the jury "in the course of identifying the issues before them, of the arguments of counsel"[19].

[71] In the present case the issue concerning the act or acts that caused the death was critical[20]. In my view the summing up failed to give the jury necessary assistance on this issue or indeed on the other principal issues that were raised[21]. A trial judge's duty under s 620 of the Code will rarely if ever be discharged by presenting in effect an abstract lecture upon legal principles[22] followed by a summary of the evidence. It is "of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them ...."[23].

[72] The statement just quoted is the first part Dixon, Williams, Webb, Fullagar and Kitto JJ in Alford v Magee referred to as "Sir Leo Cussen's great guiding rule"[24]. The High Court in that case held that the law should be given to the jury with an explanation of how it applied to the facts of the particular case[25]. Of course "whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence."[26]

[73] The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken[27]. I do not understand the statements of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen[28], which encourage reticence in making comments on the facts, to be contrary to that view.

[74] The position in the present case was not assisted by the supply to the jury of a 15 page transcript of the oral directions at the request of the jury. The defects mentioned in the preceding paragraphs in my view permeate all issues on which the jury required instruction, including the issue of self-defence. There was, for example, no discussion of any particular act of the appellant in relation to the particular tests that are posed by s 271(2) of the Code. There was no reminder about the possibility of instinctive reactions under stress or the dangers of using courtroom hindsight. It is not necessary to discuss the question further. In my view the appellant did not have a trial in which the essential issues were properly explained to the jury.

[75] On this question there were additional shortcomings in the legal content of the directions. In particular, as the President has pointed out, the age of the appellant and the circumstances of the incident were such as to call for explicit mention of the age qualification that the law recognises on the "ordinary person" for the purposes of considering whether such a person would have reacted in the way the accused did. The age of the accused person must be taken into account in the all important setting of the standard of self control to be expected of the ordinary person[29].

[76] No mention was made of this. Neither was there any mention made of the essential distinction drawn in Stingel between the approach to measuring the gravity of the provocation to the particular accused and the approach to determining whether an ordinary person (in this case of the same age of the accused) would have reacted to that level of provocation by suffering a similar loss of control. There are cases where the circumstances do not demand a complete direction. But in this case the enormity of the conduct of the deceased preceding the appellant's response made provocation a very live and important issue and manslaughter a genuine option. The directions were deficient both on the grounds discussed under the previous heading and for the reasons here mentioned.

[77] I agree with the conclusions reached by the President in relation to other issues exposed at the trial which may emerge upon a retrial. In particular, I record my agreement that the learned trial judge was correct in refusing to permit defence counsel to cross-examine in order to bring out the fact that the deceased had prior drug convictions, had been charged with other offences relating to amphetamines and was a target in a then current drug squad operation.

[78] Reference was made to R v Ellem (No 1)[30], Re Knowles[31] and R v Gibb and McKenzie[32] as supporting the view that evidence of the deceased's general reputation for violence is admissible to show that he was more likely to have been the aggressor, and for the wider proposition that the character of the victim (at least in relation to propensity for violence) is admissible when self defence is an issue. I have serious reservations concerning those propositions, but will leave to another day the question whether those cases should be followed to the extent to which they support such propositions. In my view the bad character of a deceased is not an issue in a criminal trial and neither is that person's general disposition. Further, the above propositions do not appear to be supportable upon the proper use of similar fact or propensity evidence.[33]

[79] The limits upon receiving evidence of a propensity of a non-party are problematical in both civil and criminal law but in my view the guiding principle remains relevance and capacity to prove a fact in issue[34]. It is unnecessary to discuss these questions further at this point, as the excluded evidence bore no relevance to any question of the deceased man's capacity for violence. Examples of misconduct by a deceased person sufficiently connected with the events in issue are of course receivable[35]. In addition, evidence of past acts of violence of the protagonist may come into view through evidence of an accused person's belief concerning the violent nature of the protagonist, if such belief may have influenced the way in which the accused behaved during the fight. The right to call such evidence is recognised in R v Masters[36], but even here the nature of such evidence is limited by relevance. The nature of the belief must be such as to cause the accused person to believe something about the level of violence to be expected. R v Masters is not a vehicle for the reception of evidence simply to blacken the character of the protagonist[37].

[80] In the present matter the relevant mental state of the appellant could not have been advanced by proof of prior drug convictions or of drug activities of the deceased. Indeed, the evidence (including that obtained post mortem) already showed heavy ingestion by the protagonist of drugs on the occasion in question and extraordinary aggressive behaviour on his part consistent with his psychotic reaction to them. The only purpose of adducing evidence that the deceased had prior drug convictions and was a current target in a squad operation was to disparage the character of the deceased. This was an irrelevant collateral issue.

[81] For the reasons mentioned in paragraphs [69] to [76] above the appeal should be allowed and a retrial ordered.

[82] WILSON J: I agree with the reasons of the President and with the further conclusions of Thomas JA, and wish to add only a few comments in relation to the inadequacy of the summing up.

[83] The form of a summing up can be expected to vary according to the nature of the case and the style of the particular judge. However, it will not assist the jury unless it identifies clearly and succinctly the issues of fact which the jury must decide in order to reach a verdict. It ought to contain a sufficient presentation of the defence case to enable the jury to comprehend and understand, from the terms of the summing up itself, what the defence case is: R v Veverka (1978) 1 NSWLR 478 at 481-2 per Street CJ. The trial judge's summing up in this case failed to meet these essential requirements.

[84] While it is within a trial judge's discretion to supply written directions to juries, to help them understand oral directions, fundamental defects in those oral directions cannot be overcome by the mere provision of a transcript.

[1] [1990] HCA 61; (1990) 171 CLR 312, 326.

[4] KBT v The Queen (1997) 191 CLR 417.

[6] (1991-2) 173 CLR 554.

[7] See also R v Jellard [1970] VicRp 98; (1970) VR 802, 803-804 and R v Charles (1979) CrimAppR 334.

[8] (1999) NSWCCA 122, 7 June 1999.

[10] [2000] HCA 3; (2000) 74 ALJR 449, 458.

[11] [1987] 2 QdR 272.

[13] [1995] 2 QdR 542.

[14] [1984] VicRp 67; (1984) VR 751, 768.

[15] [1983] VicRp 78; [1983] 2 VR 155,170-171.

[16] [1953] VicLawRp 72; (1953) VLR 543, 547.

[17] Farrell v R (1998) 72 ALJR 1292.

[19] RPS v The Queen [2000] HCA 3; (2000) 74 ALJR 449, 458 at paras 41 and 42.

[20] Compare observations in Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378, 386-387, 411-412, 421.

[21] Domican v R (1991-1992) 173 CLR 555, 560-561; R v Charles (1979) 68 Cr App R 334.

[22] Holland v R (1993) 117 ALR 193, 200-201 per Mason CJ, Brennan, Deane and Toohey JJ.

[23] This was Sir Leo Cussen's view in Alford v Magee [1952] HCA 3; (1951-1952) 85 CLR 437, 466.

[24] Alford v Magee (1951-1952) above at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ.

[26] Domican (above) at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron J and McHugh JJ.

[27] Alford v Magee (above) 466; R v Jellard [1970] VR 902; Nembhard v R (1982) 74 Cr App R 144, 148; Holland v R (1993) 117 ALR 193, 200-201.

[28] [2000] HCA 3; (2000) 74 ALJR 449 paras 41-43.

[29] Stingel v R [1990] HCA 61; (1990) 171 CLR 312, 332.

[30] [1995] 2 Qd R 542 - a decision of Lee J. This case derives no support from the decision of this court in R v Ellem (No 2) [1995] 2 Qd R 549. Any error in Lee J's ruling was in favour of the defence and the correctness or otherwise of this ruling by Lee J in R v Ellem (No 1) was not in issue in R v Ellem (No 2).

[31] [1984] VicRp 67; [1984] VR 751 (Victorian Full Court).

[32] [1983] VicRp 78; [1983] 2 VR 155 (Victorian Full Court).

[33] Cross on Evidence (Australian Edition) paras [21010]-[21035] and [21290]-[21295]; Pfenning v R [1995] HCA 7; (1995) 182 CLR 461; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275.

[34] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367.

[35] O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566.

[36] [1987] 2 Qd R 272.