R v Rezk [1993] QCA 379

Whatever the precipitating cause, the appellant began to use violence against his wife. The police were drawn into efforts to keep the peace between them, and Christine obtained a form of restraining order against the appellant. The parties separated in January 1991, but there were disputes between them over custody and property, and they continued to meet and communicate. On occasions the appellant telephoned and abused and threatened Christine. There is evidence confirming that such threats were made against her. According to her evidence he telephoned six times on the evening of 19 December 1991, which was the day before the incident giving rise to the charges. He threatened, as he had done before, to injure and even kill her.

It was not in dispute at the trial that on the afternoon of 20 December 1991 Christine was struck by shot discharged from a .410 double barrelled shotgun held by the appellant. He had considerable experience in the use of firearms and the weapon in question was his. Evidence of the state of relations between the appellant, his wife and his motherinlaw, and his threats against and conduct toward them was adduced as tending to show an intention on his part to kill Christine, as to which the Crown bore the onus of proof. The prosecution case was that the appellant pointed and fired the gun at Christine from a distance of only about six feet. He then pointed the gun at Rosina Rovan, thus constituting the assault against Rosina, which was the second offence of which he was convicted. In summary, the case for the appellant (who gave evidence in his own defence) was that for her own protection he retrieved the gun from Christine's residence; that he did not know it was loaded; and that on his way out of the property he had fallen over, with the result that the gun discharged accidentally and the shot hit Christine.

On the date in question Christine was living in a unit in a multiple dwelling at No. 5 Hemdan Court, Nambour. A Mrs van den Berg lived nearby in Waterfalls Road. At about 3.30 p.m. on 20 December 1991, she saw a man get out of a Toyota 4-wheel drive vehicle parked across the street. From the back of the vehicle he took what the witness described as a rifle. She saw him run down the street carrying the firearm in the direction of the rear of Christine's unit. There appears to be no question that it was the appellant. He testified to having parked his vehicle in Waterfalls Road. The only substantial divergence was that he said that what he took from the car was a plank and not a gun. Mrs van den Berg, to whom guns were a familiar sight through her childhood experience of war-time Holland, remained unshaken in her evidence that what she had seen was not merely a plank but a firearm.

Christine said she was standing outside her unit at the bottom of the stairs near the laundry door with her mother, who was seeing off a visitor, when she suddenly saw the appellant. He was standing on a grassy embankment, or the flower bed beside it, only some six feet away from and a little above her. She found herself looking directly into the barrel of a shotgun he was holding in both hands under his arm at about waist level. In cross-examination he admitted he had his finger on the trigger. As she turned and saw him, he fired. She heard two shots and felt excruciating pain. She fell to the ground. She said he came and lay on top of her, and kept shaking her and saying "I want you to die. Die in my arms". She was screaming, and she heard her mother screaming, and she remembered hearing more shots.

Her mother Rosina Rovan said she turned back from seeing off her visitor to see the appellant with the gun in his hands and under his right arm. He was standing beside the flower bed and he fired at Christine, who fell down. She saw the appellant (to use her words) pull the gun apart and put more bullets in. He pointed the gun at her and she ran around the corner. She was not sure how many shots she saw fired at Christine, she thought "a couple, a few". In all she thought she heard perhaps three or four "bangs".

There were no other eye witnesses to the shootings, although a number of residents of other units in Hemdan Court heard shots and came to the scene soon afterwards. There were variations in their evidence concerning the number of shots each heard fired. However, Snr. Const. Wort said that, on arrival at the scene at 4.00 p.m., he found a shotgun lying on the ground in a "broken" condition. It had two spent cartridges in it, and there were two unspent cartridges beside it. On the grass between it and the house next door he located three more cartridges, two spent and one unspent. A knife was also found in the vicinity. He photographed all of the cartridges, and the photographs were admitted without objection at the trial. His evidence to the foregoing effect was confirmed by that of Det. Farlow. Wort also testified that he examined the laundry door and found on its lower framework samples of what appeared to be lead shot and cardboard discs, as well as blood and flesh. Samples of the lead and cardboard were despatched to Sgt. Keller.

Keller is a police ballistics expert who examined the shotgun and other materials. The gun was a Rossi double barrel break action .410 shotgun with two triggers, the righthand trigger being placed slightly ahead of the other. Two shells or cartridges could be loaded on any one occasion. Standard tests showed the weapon to be in good condition and not prone to discharge accidentally except in extreme circumstances. More than twice the acceptable minimum safety degree of trigger pressure was required to discharge a shot. Examination of the four spent cartridges led Keller to the conclusion that three of the four spent cartridges were fired from the right hand gun barrel, and only one from the left hand barrel. His opinion to that effect was based on the distinctive markings left by each of the firing pins on the base of the discharged cartridges. It followed that, to discharge those shots, the gun would have had to have been reloaded on at least two occasion after the first shot was discharged from the right hand barrel. Reloading is effected by swinging the lever on the top of the gun enabling the gun to be broken and the spent cartridges to be removed and replaced. To discharge a shot, an external hammer must be manually cocked and then released by operating the trigger mechanism.

Dr A.F. Smith gave evidence of treating Christine after she was brought to the Nambour General Hospital. He found a gunshot wound on the right side of her neck, which was cleaned and debrided in the operating theatre. Exploration disclosed disruption of the soft tissue muscles exposing the nerve roots running into the right arm, in which Christine now has a permanent disability. In the wound Dr Smith found a wad and numerous pellets. He said he removed the wad from the depths of the wound and some pellets, but numerous pellets were left behind. He placed the items removed in a jar, which was sealed. In fact the relevant jar (ex. 7) tendered at the trial contained only one pellet, a plastic wad, and two circular cardboard discs. When this was drawn to his attention Dr Smith confirmed that the other pellets - he estimated at least 50 in number - were left in the wound, and were still there. The reason, he explained, is that the root of the neck is quite a vital area, and "it would do more harm than good trying to retrieve all the pellets" which were in that tissue.

Some reference must be made to the evidence concerning the composition of the shotgun cartridges and the damage detected at the scene. The cartridges were Fioke brand. Starting at the leading end of the cartridge case, there is a cardboard disc or "overshot wad" followed by the column of pellets. Keller counted 93 pellets in one of the undischarged cartridges he opened. Next after the pellets is plastic wad, which separates them from the powder charge at the base of the cartridge case. On discharge the contents may be expected to emerge from the barrel in the sequence in which they were packed; that is, first the cardboard overshot wad, followed by the pellets, and then the plastic wad. Material of all three kinds was apparently found by Dr Smith in the neck wound.

Shotgun damage was visible in three different places. First, there was the wound in Christine's neck, from which the plastic wad, single pellet, and discs were removed. This and the appearance of the wound tended to suggest that it was not a glancing impact caused by ricochet of the shot off concrete or other solid object. That was the first place where damage was located. Then there was the area at the base of the laundry door, from which pellets and two halves of a cardboard disc or overshot wad were recovered, in conjunction with blood and particles of human tissue. The discs tend to delaminate on impact, which may explain why Dr Smith apparently found two in the wound. Keller said that the presence of discs in both the wound and the door suggested that they were caused by two separate shots. A third area of shotgun pellet damage was located in the building next door, which was No. 3 Hemdan Court. It consisted of impact damage to a pane of glass, a panel of fibro, and some hardiplank below the window. It was at a distance of some 26 metres or more from the laundry, and was probably due to a shot being fired from about that distance in a slightly upwards trajectory. It may be contrasted with the laundry door damage, where the trajectory was slightly downwards. According to Sgt. Keller, it would have required a minimum of three shots to have caused the various areas of damage that were observed.

When account is taken of all these matters, it is obvious that there was ample evidence to justify the jury finding the appellant guilty of attempting to kill his wife by firing at least two shots at her. His account of what happened was contradicted by that evidence and was essentially implausible. It was that he came to see Christine to talk about access to their son Marcel. He parked his vehicle in Waterfalls Road so as to avoid being seen by Christine's friend. From the rear of his vehicle he took a plank which he needed in order to make his way through two fences, of which one was made of barbed wire on which he had previously torn a pair of trousers. As he approached Christine's unit he saw someone in a dress turn the corner of the building followed by Christine herself.

It then occurred to him that he now had the opportunity to run into her upstairs flat and look for the shotgun which he said she had. He went in, located her bedroom, and was able to find the gun standing between the wardrobe and a set of drawers. In the second drawer he found four shotgun shells and a knife. He put the shells in his pocket and the knife in his waist, and raced out again. He did not load the gun and did not know if it was loaded. The appellant was outside the building on his way out and standing on the embankment when he heard his wife call out "What are you doing there". Knowing there was an order prohibiting him from having a firearm and that she would call the police, he "just froze". He turned and walked toward her holding the gun.

He explained to her that she did not need a gun and he was going to give it to their daughter to pass on to the police. There was a discussion about custody and about items of property; at the end of it he suggested, and she agreed, that they should go inside. He started down the embankment and then fell, twisting his right ankle; as he fell the gun discharged. He thought he had shot his foot. Then he looked up and about and saw Christine lying on the concrete with blood running "like a river" on the driveway.

The appellant said he started calling for help, and walked toward the corner to look for someone he had seen there. He saw Christine again, lying there not moving, and "for the first time I thought she was dead". He loaded the gun and placed it under his chin intending to kill himself. He was getting ready to pull the trigger when he saw her move her foot. At that he moved the gun to the left, and it discharged (he thought) in the air. Later in his evidence he said that two shots were fired on this occasion. He threw the gun down, and knelt beside Christine. Realising she needed help, he raced upstairs to her flat and telephoned the emergency number, and then tried to call his daughter. She was not at home, and he spoke to her flatmate Ms. Rothenberger. He then ran downstairs again and tried to comfort Christine. The ambulance was a long time coming, so he ran upstairs and again dialled 000. He went back downstairs on hearing the siren, and collapsed in the arms of a neighbour, a Mr Michael Carr, whose help he sought. The next thing he knew was that he was handcuffed and in the police car. So far as Rosina Rovan was concerned, she was, he said, never there at all on that occasion on 20 December 1991.

Before this Court the appellant conducted his own appeal. Like many in that position he insisted on pursuing at great length matters of detail that had little (if any) significance for or relevance to the issues involved. The result was that the hearing of the appeal extended over four days, which was at least as long as the trial itself. In part the time it occupied was due to the appellant's presenting on the appeal what he claimed was fresh evidence. Much of what was advanced as having that character fails to satisfy the tests governing the admissibility of such evidence on appeal. The appellant was nevertheless allowed considerable latitude in pursuing such matters, and several witnesses were called and cross-examined by him, including two of the police officers who had testified at the trial. In addition the appellant himself gave evidence before us and was crossexamined.

Of the two principal matters about which the appellant now complains, the first was that his legal representatives had failed to follow his instructions. At the trial the appellant was represented by a barrister instructed by a local solicitor. Counsel, who was Mr J.C. Parker, is a practitioner of experience in criminal matters, having been admitted in Manitoba in 1977 and in Queensland in 1985, and having, according to what he said, since acted extensively as prosecutor or defence counsel on many occasions.

In his affidavit and in oral evidence before us, Mr Parker dealt with the appellant's complaints about the manner in which he conducted the defence case at the trial. He said he had not pursued the appellant's claim of a conspiracy between Christine, Rosina Rovan and the police because he considered that any further detail of the premarital disharmony would serve only to emphasise the motive that the appellant might be seen to have for wishing to kill his wife. Consistently with this attitude, he had decided that Hoffman, a police officer who had attended to Christine's complaints against her husband, should not be called or cross-examined. Hoffman would, Mr Parker suggested to the appellant, have given evidence about "your cutting up your wife's underwear because you were jealous ...". Likewise, he had not insisted that Jean Cannon be called because, although she might have testified that she did not see Rosina Rovan there, she would also have said that she had seen Marcel run off crying out "Daddy's come to shoot mummy". He had not required the Boggo Road prison hospital records to be produced because at the trial the appellant himself had given unchallenged evidence of suffering an injury to his right foot, and the records therefore went at most only to his credit. He had not required production of the hospital x-rays of Christine's wound because, even if they were available, he thought it made little difference to the appellant's defence whether or not the discs or pellets were visible in the wound. According to the view formed by Mr Parker, it was not sufficiently relevant to the appellant's case of accidental discharge of the shotgun whether Christine's wound resulted from an impact that was direct or from a ricochet.

There were other decisions taken at the trial for which Mr Parker explained his reasons. It is naturally difficult for us, sitting here, to disagree with his professional judgment in relation to any of them. It is, in any event, not necessary to try to do so. We accept that in each instance counsel explained to the appellant his reason for a proposed course of action, and that the appellant accepted the force of that reasoning and agreed to leave the decision to Mr Parker. In these circumstances it is not now open to the appellant to complain that Mr Parker acted contrary to the appellant's instructions.

The solicitor instructing counsel at the trial was Mr C.J. Lavery. He had been acting for the appellant for some time before the incident giving rise to these charges; he thus had an intimate knowledge of the appellant's previous conduct. Against him the appellant asserted on appeal that he had ignored or acted contrary to explicit instructions given by the appellant. In many instances the instructions were said to have been given in writing in the form of facsimile letters communicated to Mr Lavery by the appellant from Boggo Road prison, where the appellant was detained pending his trial.

Copies of the facsimile letters of instructions are annexed to the appellant's affidavits in support of the appeal. They contain passages purporting to instruct Mr Lavery to do certain things, or obtain certain evidence. They were things the appellant complained Mr Lavery did not do. The appellant's difficulty is that Mr Lavery was able to produce the original facsimile letters received by him. They contain none of the critical passages now relied on by the appellant. Because it is possible that other charges may follow this discovery, it may not be desirable to set out the obvious inference that is to be drawn from the conflicting appearance of these two sets of documents. It is enough to say here that we do not accept the appellant's evidence before us, whether given orally or by affidavit, in relation to any matter in dispute. His testimony on appeal has been shown to be quite unreliable.

Two of the police officers, Farlow and Wort, who gave evidence at the trial, were also cross-examined by the appellant at the hearing of the appeal. If it is possible to summarise what was put to them, it was that they had conspired to fabricate the evidence on which the appellant was found guilty; or, in short, that (to use his own words) he had been "set up". To the extent that cross-examination had an identifiable focus, it appeared to concentrate on some particular aspects. One was Mrs van den Berg's description of the vehicle from which she saw the man alight in Waterfalls Road. It was said that she misdescribed its colour. An acceptable explanation of how this might have happened was given by Det. Farlow; but, in any event, the point was not relevant to any matter in issue. The appellant himself testified at his trial that he parked his vehicle in Waterfalls Road at about the time in question, and the witness's description of what she saw tallies generally with his account except as regards the question whether it was a gun or a plank she saw him carrying away.

Another pre-occupation of the crossexamination of Farlow and Wort was the scene of the crime, and the photographs that were taken of it at or shortly after the arrival of the police. It was put that using a magnifying glass to examine a photograph showing a police car at the scene it was possible to see a figure seated in the back seat, whom the appellant identified to us as Rosina Rovan - and, said the appellant, "if that is Rosina Rovan in that car, then I think we need to know why and how".

Having looked at the photograph using a magnifying glass, we now record our impression that there is no one in the back seat of the car. That impression is in no way affected by the appellant's claim that a black poodle dog is also visible in an enlarged photocopy of the same or another photograph; or that Rosina's attachment to that dog was such that, wherever Rosina went, the dog was sure to go. Even if accepted as accurate, these matters afford no evidence capable in law of affecting the outcome of this appeal. The same applies to the claim that in the photocopy enlargement of another photographic exhibit, it is possible to identify the silhouette of the appellant's daughter Catherine. No member of the court has been persuaded that any human figure is visible in the enlargement, or that it is Catherine, or that it proves that therefore the photographs were not taken on the day of the incident, but are fabrications that were manufactured on some other day.

Other matters that were pursued on appeal as involving fresh evidence are discussed in detail in the reasons of Dowsett J. We agree with what he says about them. There is no substance at all in these or any of the other matters advanced by the appellant as constituting fresh evidence that would justify ordering a new trial.

From this we turn to other questions of possibly greater concern. On behalf of the Crown, Mr Hunter of counsel conducted the respondent's case with candour and restraint. He directed us to two matters in the summing up that he suggested might merit the attention of the Court. These were in addition to the series of criticisms that the appellant made of several matters of detail in the trial judge's summing up. None of them justifies separate consideration. One such complaint, which may be taken as typical of the others, is his Honour's statement in summing up the defence case that immediately before the gun discharged, the appellant had "slipped on his feet" on the embankment; the appellant claimed that what he said in evidence was that he "fell" or, as he himself stated it on appeal, he "tripped" and fell. His Honour's misstatement of the evidence on this point might, the appellant suggested, have led the jury to think the appellant was not telling the truth. Clearly the appeal does not fall to be determined on points as insignificant as this; but, as it happens, the record (at p.314) shows that the appellant did at one stage describe himself as having slipped.

Neither of the two matters raised by Mr Hunter was the subject of a ground taken in the notice of appeal, which had already undergone extensive amendment before the hearing. We nevertheless undertook to consider both matters. The first concerned a reference in the summing up to the "interest" of the appellant as a witness at the trial. His Honour introduced his remarks on this subject by saying that the jury should look for disinterested witnesses, "people who you think would have no axe to grind whatever, and their evidence, you might think, is more capable of credence". He referred to those he described as professional witnesses, and went on to give the example of Dr Smith. Then he mentioned the ambulance man, various neighbours and Sgt. Keller, who, his Honour said, "you might think ... were impartial witnesses, but that is a matter for you".

Having referred to some other individuals as being possibly impartial witnesses, his Honour continued:

"Next you consider whether there was any interest or motive a witness might have in bringing about a particular result. Someone might have a particular interest in securing a result in different ways. It was suggested throughout the case by the defence that Christine and Rosina got together to paint a very bad picture of the accused. Also, the defence suggested that Mrs Vabec, who is Rosina's sister and Christine's aunt, and who is very close to Rosina and Christine, gilded the lily, and that they all got together and painted a very, very bad picture of the accused which was wrong and incorrect.

The Crown Prosecutor had also suggested that the accused had a great interest in that he fabricated his story.

Certainly you pay particular attention to the evidence of people who you might think have an interest in the case, but this does not mean that you necessarily reject all or any part of it. It is simply a factor you bear in mind. You consider closely the evidence, particularly that of the accused, and it might well impress you as being reliable, and evidence on which you can act or it might be such as to at least raise a reasonable doubt, but you do not assess his evidence any differently from the way in which you assess the evidence of any other witnesses in the case. Just give it a fair, sober consideration to see whether it impresses you as being reliable evidence on which you can act or whether it is such as to raise a reasonable doubt.

I mentioned earlier that the accused is on trial on serious charges with the focus of attention on him by everyone in the courtroom. You may, if you see fit, make due allowance in your assessment of his evidence for the fact that he may be nervous and apprehensive. On the other hand, you might come to a different conclusion. These are matters entirely for you."

The summing up then proceeded to deal with the status of police witnesses, and the attitude that the jury might adopt in approaching their evidence.

The difficulty that is suggested in relation to the foregoing passages arises from the decision of the High Court in R. v. Robinson (1991) 65 A.L.J.R. 664, where a summing up was condemned because of the references in it to the interest of the accused in the outcome of the case and the weight to be given to that factor in assessing his evidence. There is, it may respectfully be suggested, an element of ambiguity in some of the remarks of their Honours in the joint judgment in that case that left it uncertain whether it was intended to preclude from a summing up either (1) any reference at all to the interest that an accused, in giving evidence, obviously has in the outcome of the case; or (2) only such references to the matter of the interest of the accused as might have the effect of diminishing the fundamental presumption of innocence of the accused. The latter may sometimes be the unintended but effective consequence of inviting the jury to undertake a comparative assessment of the weight of the evidence of witnesses according to the extent of the interest of each in the outcome of the trial. It was the case in R. v. Robinson.

Deciding which of these two interpretations of the judgment in Robinson is correct occasioned a difference of judicial opinion in R. v. Wilson [1992] 2 Qd.R. 174, where the first interpretation was adopted by the majority of the Court of Criminal Appeal; and again in R. v. Roach (CA 185 and 214 of 1991), where the second interpretation was favoured by a majority of the Court of Appeal. The question was considered again in the High Court of Australia in Stafford v. The Queen (1993) 67 A.L.J.R. 510), which was an application for special leave to appeal. In refusing the application Deane J. on behalf of himself, Dawson, and Toohey JJ. is reported to have said:

"It follows from the decision of this Court in Robinson v. Reg (No.2) [1991] HCA 38; (1991) 65 A.L.J.R. 644, that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.

Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about 'an admission of impotence', it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial."

In the present case it appears that in the passage above taken from the summing up, the trial judge probably did infringe the prohibition stated in the first of the two paragraphs quoted from Stafford. Although his Honour did not expressly direct the jury that the interest of the appellant in the outcome of his trial was a factor to be taken into account in assessing his evidence, it can be said that he did at least indirectly invite the jury to assess the reliability or relative reliability of that evidence by reference to the interest of a witness in the outcome of the trial. The question is whether his Honour's doing so is fatal to the verdict of guilty against the appellant, or whether it is open to this Court to apply the proviso to s.668E(1) of the Code.

In considering whether the proviso is capable of being applied it is necessary to examine the effect that the error may have produced. We are satisfied that the error in this instance did not have the effect that the accused was deprived of a chance of acquittal. There may be cases, of which Robinson v. The Queen (No. 2) [1991] HCA 38; (1991) 65 A.L.J.R. 644 is an illustration, in which the effect of referring to "interest" in the context of credibility of witnesses including the accused, may, in the form in which it is stated, lead to a reversal of the onus of proof. Such a defect in a summing up would in most circumstances plainly be so fundamental as to preclude the proviso to s.668E(1).

We are not here concerned with any such defect. His Honour's observations on interest were very far from amounting to a reversal of the onus of proof. It is likely from the context that what he said on the subject was a response to counsel's addresses at the trial. Counsel for the appellant had, it appears, attacked the two principal prosecution witnesses Christine and Rosina Rovan as having conspired against the appellant, and also suggested that Mrs Vabec, who, being Christine's aunt and Rosina's sister, was "very close" to them both. She and they had an obvious interest, which might well have tended to colour their evidence against the appellant.

Likewise, from what the learned trial judge said next, it appears that the appellant was identified in the course of the address of counsel for the prosecution as having a "great interest in that he had fabricated his story". In this the sequence of cause and effect seem to have been reversed; but, however the matter was stated, it emerges from what follows that his Honour's only concern was to discourage the jury from discounting the appellant's testimony on the ground that he was the accused. The whole of the third paragraph in the extract from the summing up which is set out above has that end in view. The case is therefore one in which the trial judge invited attention to the relative interests of the witnesses, but he did so for the purpose of attempting to redress the balance in favour of, and not against, the appellant as a witness.

The case before us resembles Stafford, because in this Court the assessment was that the direction in Stafford was, on balance, favourable to the accused, and that there was no miscarriage of justice. The decision shows that infringement of the prohibition is not necessarily fatal, although in the course of restating the rule, the High Court in Stafford said that it is "preferable" that a trial judge refrain from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his evidence. Such an approach is consistent with many of the American authorities on the point. Even in those jurisdictions in the United States where a reference in the summing up to the interest of the accused is considered to be inadvisable or inappropriate, it has been held not to constitute reversible error for the trial judge to do so. See State v. Bester 167 N.W. 2d 705 (Iowa), where the authorities are reviewed; cf. also 75B Am.Jur. 2d s1423.

In deciding in terms of s.668E(1) whether there has been "no substantial miscarriage of justice", the test stated in Driscoll v. The Queen [1977] HCA 43; (1977) 137 C.L.R. 517 and adopted in Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365, 372, is whether it can be said that "had there been no blemish in the trial, an appropriately instructed jury acting reasonably on the evidence properly before them ... would inevitably have convicted the accused ...". In the present case we think that that question must be answered in the affirmative. The evidence of a motive on the part of the appellant for killing his wife, and of his threats to do so, was extensive and to some degree corroborated by witnesses outside the immediate family circle. The act of shooting and wounding Christine was not in dispute. The appellant admitted that, although well versed in handling firearms, he had his finger on the trigger of the gun before it discharged. His account of having, for no apparent reason, fallen, so as to cause the gun to discharge is entirely at odds with the scientific evidence about the trigger pressure required to fire the gun, as well as the evidence based on the number of spent cartridges found at the scene that, in all, four shots had been fired.

The jury may well have considered it most improbable that both barrels of the gun would have been accidentally discharged at Christine. In any event, the appellant's evidence of having thereafter fired a shot in the air over his shoulder fails to account for all of the four spent cartridges. It also leaves unexplained the critical fact that, according to the unchallenged evidence of Keller, three of the four cartridges were discharged from the right hand barrel of the gun. The process of loading, discharging the gun, breaking it, removing the spent cartridges, reloading, cocking the hammer, and firing, are all acts involving such a degree of deliberation as to exclude any notion of accident. If the appellant twice reloaded and twice fired the right hand barrel of the gun after the first two shots had been discharged at Christine, it would have been impossible for a jury to give any credence to his claim that he was preparing to commit suicide until he saw her foot move. Reloading and discharging the gun on two further occasions after the first two shots is consistent only with an intention on his part to shoot Rosina Rovan, which would be wholly inconsistent with his claim that his shooting of Christine was an accident.

On the objective evidence located at the scene, and independently of the credibility of the principal protagonists who testified at the trial, it is thus a rational and compelling conclusion that the verdict would certainly have been the same if the offending reference to the interest of witnesses had not appeared in summing up. When all the evidence is considered, it is plain that any conclusion other than that the appellant was guilty of the attempt against Christine would have been absurd. Once that verdict had been found, the verdict of guilty on the charge of assault against Rosina would follow as a matter of course. In our opinion, no miscarriage of justice was occasioned in this case by the judge's reference in summing up to the interest of the witnesses at the trial.

This leaves for consideration the second of the two matters raised by Mr Hunter. It involves consideration of part of a single sentence in the following passage in the summing up:

The accused says he tripped - slipped or tripped - resulting in the accidental discharge of the gun and the twisting of his ankle. This, as already indicated, has been contradicted by Christine and Rosina who said that he had a firm stand, and by other evidence concerning no slip marks, no early complaint by the accused to the police or others that it was an accident; his expertise with safety matters relating to guns and by various witnesses who gave evidence of his statements of intention over a long period."

The passage in question appears at or shortly after the 40th page of a summing up occupying more than 50 pages of typescript. It may fairly be doubted whether the sentence in the passage in question made any lasting impression on the jury. It was immediately followed by a quite precise direction from his Honour that it was not for the accused to prove accident but for the Crown to exclude it to the satisfaction of the jury beyond reasonable doubt.

The difficulty with the passage quoted is said to be that it contravenes the rule laid down in Petty v. The Queen (1991) 173 C.L.R. 95, where Mason C.J., Deane, Toohey and McHugh JJ. said (at 100):

"In the present case, Priestly J.A. expressed the view that there is a 'significant distinction' between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understood it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound."

It must be acknowledged that on first impression his Honour's reference in summing up to the fact that there was "no early complaint by the accused to the police or others that it was an accident" is capable of being viewed as contrary to the principle stated in Petty; it involves a denial of a credibility of a late defence or explanation by reason of the accused's earlier silence. That, their Honours said, "is just another way of drawing an adverse inference ... against the accused by reason of his or her exercise of the right of silence".

On closer examination, however, it becomes plain that this is not a case in which, in terms of the sentence just quoted from the judgment in Petty, the silence of the accused was the result of his exercising the right to remain silent. In that respect, the present case factually resembles Petty, where the principle was laid down but not applied. The High Court dismissed the appeal because the appellant Maiden had not previously remained silent about the subject matter of the charge; instead, having been interviewed by the police, he maintained up to trial a version of events that was inconsistent with the defence he later relied on at the trial. It was held in those circumstances to be open to the Crown to show that the version introduced at the trial had never previously been suggested.

There was a similar sequence of events in the present case. The appellant had actually made some disjointed observations concerning the incident to witnesses soon after it occurred. In the course of cross-examining the appellant at the trial, counsel for the prosecution put to the appellant that he had spoken to Ms. Rothenberger and to Mr Michael Carr shortly after the shooting, without telling either of them he had slipped over on the grass and had an accident with the gun. The appellant confirmed this, saying that he "didn't say anything to anybody". It was then put to him that he had made the story up. He denied doing so. The right to silence is regarded as protecting against inferences which may be drawn from the absence of an explanation given by an accused to persons who are in a position of authority rather than to persons in general. See Petty, per Brennan J. at 107, and per Dawson J. at 118; and Parkes v. R. (1976) 64 Cr.App.R. 25.

On behalf of the appellant at the trial, Mr Parker of counsel correctly assessed this line of questioning as involving an assertion by the Crown of a recent fabrication by the appellant. In reexamination counsel's opening question to the appellant was whether he remembered being questioned to the effect that his defence of accident was a recent fabrication. The appellant said he did. He was then referred by counsel to the occasion of his first appearance in court on the morning after the incident, when Mr Lavery had appeared on his behalf. The appellant said he recalled Mr Lavery telling the court that the appellant had not taken the gun to his wife's place. That was, of course, a critical part of the narrative that the shooting occurred by accident. He was saying that he had not brought the gun with him. In reexamination at the trial Mr Parker also asked him about a document in the form of a plan he had prepared showing where he parked his car and the route he had taken from there to reach his wife's unit. The point being made was that the document referred to the plank he said he had used to negotiate the barbed wire fence. It was a document that was brought into existence in February, well before the trial, which was in August of the same year. The plan was tendered in evidence by Mr Parker to rebut the allegation of recent fabrication. After objection and argument, it was admitted by his Honour and became ex. 29.

The present case is therefore not one in which the appellant in the period immediately following the incident can be thought of as consciously exercising any right of silence, so as to attract the rule making it improper to draw an adverse inference against the appellant from his not having advanced the explanation of accident which he gave in evidence at trial. Indeed the appellant never at any stage claimed to have been relying on the right to remain silent. It does not appear that he was aware of any such right; but, whether he was or not, the fact is that he had not remained silent. Instead, at the trial he claimed to have produced at a much earlier stage explanations or evidence that were consistent with what he was saying at the trial. In doing so he was not resorting to any right to remain silent, but trying to persuade the jury by means of admissible earlier self-serving statements that his defence had always been the same and that he was telling the truth about what happened. It therefore became a question for the jury to determine whether in all the circumstances that was so, or whether, as the Crown was contending, the appellant had fabricated his account of what had happened after the shooting had taken place. It was to this question that his Honour's remarks and very brief reference to the absence of an "early complaint by the accused to the police or others" (underling added) were directed. We do not consider that they give rise to any ground of appeal to which effect can or should be given here.

It is useful to compare our conclusions with the reasoning of the Supreme Court of Wisconsin in State v. Brecht 421 N.W. 2d 96 (1988), which resembles this case in a number of respects both factually and legally. There it was not until trial that the accused put forward the accidental character of the shooting out of which the charge arose. His right to remain silent, and to receive a fair trial, were held not to have been infringed by evidence from prosecution witnesses concerning encounters with the accused soon after the incident in which he failed to mention the shooting. The reason for so ruling was that there was nothing coercive about those encounters or the questioning that took place in the course of them. (cf. Petty per Mason C.J., Deane, Toohey and McHugh JJ. at p.99.2 ("questioned by any person in authority ...). In addition, the Court held that once the accused chose to testify at his trial, cross-examining him about his earlier silence concerning the shooting did not violate his rights (at 103); nor did re-examining a police witness about it after the defence had elicited from him a statement by the accused that there had been "a big mistake", about which he wanted to talk to someone (at 102). In those circumstances prosecution references to accused's silence on his arrest were considered to be "a fair response" to defence questioning, after it had "opened the door" to that re-examination.

Although mainly concerned with the accused's Fifth Amendment rights, the decision in State v. Brecht is relevant to the present appeal because of the fair trial question it raised; and also because, after deciding that some of his rights to silence had been infringed, the Supreme Court went on to conclude that the violation was, beyond a reasonable doubt, a "harmless error" and not such as required the conviction to be reversed. In doing so, Bablitch J., who delivered the judgment of the Court, emphasised the relative infrequency of the forbidden references (there were four comprising less than two pages of a 900 page transcript); the strong circumstantial evidence, including evidence of motive, that the shooting was intentional; and the physical evidence, which included the trajectory of the bullet and the absence of anything that might have tripped the accused, which contradicted his explanation of accident (at 104). By comparison, in the appeal before us, both the evidence of motive and the objective physical evidence against the appellant are even stronger than they were in State v. Brecht.

On all the other grounds of appeal that were argued by the appellant, we agree with what has been said by Dowsett J. in his reasons, which we have had the advantage of reading.

The appeal against conviction should therefore be dismissed. Turning to the question of sentence, we were referred to a series of different cases involving sentences for attempts to kill. They included Ronald Walter Matthew, Mark Hindson, John Hall, Paul Escreet, Arthur James Farrell, and Ethel Rafter. They disclose sentences ranging from imprisonment for 8 to 10 years for an offence of this nature. On that footing, the sentence of 10 years imposed on the appellant for his attempt to kill Christine falls fairly within the limits of the standard range. The only question is whether such a sentence could be considered excessive if account is also taken of the fact that the appellant spent some eight months in custody awaiting trial.

On reflection, we do not think that additional factor is enough to make the sentence excessive, particularly when it is recalled that the sentence of imprisonment for the second offence of common assault committed against Rosina Rovan was made concurrent. It is not clear whether the trial judge thought that a shot or shots had been discharged at her or in her direction. What is clear is that the jury must have accepted that the gun was at least pointed at Rosina after she had seen her daughter shot and the gun reloaded. That being so, the judge would have been justified in imposing an effective sentence of imprisonment of more than 10 years to reflect the overall criminality of the appellant's conduct on the occasion in question.

Several of the comparable sentence cases to which we were referred incorporated recommendations for early release. Without knowing more of the particular circumstances of the offence as well as the personal background of the accused in each of those cases, it is not possible to identify in them a settled pattern of making such a recommendation in the case of the offence of attempting to kill. The appellant has to his credit a past record of hard work, achievement, and good behaviour; but his actions on this occasion were the culmination of a lengthy series of abusive and violent acts or threats that were obviously designed to and did terrorise Christine and her mother. The deterrent factor in sentencing calls for the fullest recognition and emphasis in the case of behaviour like that. We do not think the sentence ought to be reviewed.

We would accordingly dismiss the appeal against conviction, and refuse the application for leave to appeal against sentence.

The appellant was convicted of one count of attempted murder and one count of unlawful assault and sentenced to terms of imprisonment of 10 years and one year respectively, the sentences to be concurrent. He appeals against both convictions and seeks leave to appeal in respect of both sentences. Although the appellant was represented at his trial, he was unrepresented before us with the almost inevitable consequence that whilst the trial was kept within fairly narrow compass, the appeal was rather more diffuse. The appellant also delivered amended grounds of appeal but was reluctant to abandon any of his earlier grounds, thus further confusing proceedings.

Briefly, the first count related to an incident involving the appellant's estranged wife who gave evidence at the trial under the name, Christine Rovan. She had left him in December, 1990 as a result of his aggression, including abuse and threats. She gave evidence of his cutting up clothing on one occasion and of excessive consumption of liquor. On 20th December, 1991 as she was walking with her mother from her unit to the front of the unit block, she saw the appellant armed with a shot gun. He was holding the gun under his arm and with both hands. She turned around and he shot her. She initially heard at least two shots. Subsequently, she heard further shots. While she was lying on the ground, she became aware of her husband lying on top of her, shaking her and saying, "I want you to die. Die in my arms."

The other count concerned events alleged to have occurred shortly thereafter. The appellant's mother-in-law, Mrs. Rosina Rovan first saw the appellant just before he allegedly shot his wife. She said that thereafter, he reloaded the gun and held it pointed at her. She ran away.

The appellant's version of events was that he went to his estranged wife's unit after drinking some wine and that he approached the premises from the rear to avoid meeting any visitor she might have. Seeing that she was momentarily outside of the unit, he grasped the opportunity to go into the unit to recover a shot gun which he knew she had there. He had been concerned by its presence in the house on account of his young son, who was also living there. He said that he found the shot gun and also some shells and a knife, put the shells in his jeans pocket, the knife in his waistband and then ran out of the unit. He did not check the weapon for safety.

Outside the unit, he heard his wife call and stopped. He said that at this stage, he had the gun on his right side. He told his wife that she did not need a gun and that she didn't have a licence. He said that he had certain items in the car that she required and asked if they could go inside to, "discuss the matter and solve it". She agreed to their going inside and as he turned to do so, he fell and the gun discharged. It had been raining and the grass was probably wet. He was standing on a grassy slope. He said that he saw his wife lying on the ground, bleeding. He loaded the gun and placed it under his own chin, but she then moved, so he discharged the gun into the air. He knelt down to attend to his wife and then went to call the emergency number. He denied the incident involving his mother-in-law.

Much of the appellant's complaint about his trial concerns various witnesses or areas of evidence not called or canvassed, allegedly despite instructions to that effect from the appellant to his legal advisers. We heard evidence from Mr. Parker, who was his counsel and from Mr. Lavery, the instructing solicitor. Mr. Parker was cross-examined by the appellant concerning the former's alleged failure to raise at the trial, evidence of incidents involving the appellant and his family occurring after the alleged offences. Mr. Parker's response was that he had advised against leading such evidence in view of the fact that the principal issue at the trial was whether or not the appellant had an intention to kill. Mr. Parker said that he advised the appellant that it would be unwise to venture into such evidence, given the nature of that issue. The appellant asserted that he instructed Mr. Parker to lead the evidence notwithstanding that advice. Mr. Parker said that the matter was finally left to him by the appellant. Even if I were minded to reject Mr. Parker's account (which I am not, for reasons which appear hereafter), I cannot see how such evidence could have been of any assistance to the appellant.

A second complaint made by the appellant in the course of his crossexamination of Mr. Parker was that he had been denied access to him in the course of the trial. Mr. Parker was clearly of the view that there had been sufficient opportunity to take appropriate instructions. I am satisfied to conclude that such was the case. A perusal of the transcript suggests that counsel was well in control of the issues of which complaint is now made. Mr. Parker saw the appellant prior to the committal proceedings, once whilst he was on remand, and again on the morning of the trial. This was sufficient, given the relatively narrow issues involved in the case. The record of proceedings before us suggests that the appellant was a client of the kind who persists in inundating counsel with pieces of paper upon which are written various thoughts which have occurred to him in the course of the trial. Whilst such clients may be of assistance in some cases, and whilst the thoughts of even the most difficult client can be helpful and should be considered, counsel must regulate the flow of such information as it may otherwise distract him from the principal issues. Perhaps Mr. Parker showed less interest in the appellant's notes than the appellant thought appropriate, but it was not demonstrated that this lack of interest in any way detracted from the proper conduct of the trial.

A further matter of concern was that in the course of the evidence, there was a suggestion that two small cardboard discs had been found in the wound suffered by the appellant's wife. These discs were part of the discharged contents of one or more of the shells. I am in some doubt as to whether the discs were extracted from the wound. The appellant was anxious to have the discs examined scientifically for some reason, but Mr. Parker could see no point in this, and as the appellant's defence was being funded by the Legal Aid Office, he thought it unlikely that funds would be forthcoming. I also can see no possible benefit to the appellant's case from such examination, and I do not think it necessary to take this matter any further. After all, the appellant did not deny the discharge of the weapon or that the complainant was injured as a result.

Associated with the latter question was the question of xrays of the wound. Dr. Smith, who examined the complainant said that some pellets had been left in the wound. The appellant was anxious to produce the xrays at the trial to demonstrate his belief that such was not the case, or at least I infer as much from the questions which he asked of Mr. Parker. Again, given the nature of the appellant's defence, I cannot see how this would have assisted. Dr. Smith had testified to having removed a pellet and some wadding material from the complainant's wound. This was no doubt sufficient to lead to the inference that a substantial part of the contents of a cartridge had travelled in her direction. It is difficult to see how the matter could have been improved for the appellant. The doctor gave evidence that the x-ray showed numerous pellets still in place. He also had discerned their presence by physical examination.

Part of the appellant's defence was that the weapon in question discharged as a result of his slipping or falling on the grass. In the course of his cross-examination at the trial, he was shown photographs, one of which displayed three discharged shells lying on the ground. He said that following the conclusion of his cross-examination, he asked his solicitor to have various Crown witnesses recalled because he thought that there was "something wrong" with the photographs. Mr. Parker denied having received such instructions but said that in any event, he would not have complied with them as he could see no reason to ask the Court to depart from the usual course. This was obviously correct. The appellant was proposing nothing more than a fishing expedition.

There were other witnesses not called by the Crown whom the appellant says he wished to have called. These witnesses included Constable Hoffman, Jean Cannon, Lanton and Cain. It was Mr. Parker's considered view that these witnesses did not assist the appellant in any way and he so advised. The advice was accepted. I can see no reason to believe that the appellant's defence was in any way prejudiced by these decisions as to the conduct of the trial. I do not accept that the appellant insisted on their being called contrary to Mr. Parker's advice.

The appellant also complained that Mr. Parker declined to demand scientific examination of the jeans which the appellant was wearing at the relevant time. There were no apparent grass stains on the jeans, causing doubt as to the appellant's claim that he fell or slipped. The appellant hoped that there may have been stains discernible by chemical tests but not visible to the naked eye. This was of only marginal relevance in any event and clearly, a fishing expedition. The presence or absence of such stains would not be conclusive either way. I can see no justification for incurring such expense against the mere possibility that something may be discovered of little more than passing interest in the conduct of the trial.

The appellant also complained that he had asked in the course of the trial for samples of blood and flesh allegedly found on the laundry door to be produced to justify evidence from one of the police officers that such samples had been found and subsequently analysed, or so I infer from the questions asked of Mr. Parker. In other words the appellant wished the Crown to prove the identify of the samples analysed as those collected from the door. There was no reason to doubt the accuracy of the evidence given as to the finding of such material in the laundry. In any trial, the need to comply strictly with rules of evidence is often waived. The appellant's concern centres on the fact that the presence of this material on the door was in some way consistent with the Crown case and inconsistent with his version. Mr. Parker did not recall this specific matter being raised with him. I am sure that had the appellant raised it in such a way as to amount to a direction to Mr. Parker, the latter would have remembered. A decision was made in the course of the trial to accept this aspect of the evidence. I see no reason to allow the appellant to resile from that decision.

Mr. Lavery, the solicitor was also cross-examined. The appellant complained that Mr. Lavery had not responded to instructions given to check a Landcruiser owned by the appellant to ascertain whether or not, "the back door behind the passenger door", was unable to be opened, and also as to whether or not there was a full white stripe all around the vehicle. This evidence related to evidence from the witness, Van Den Berg that a person parked a vehicle very like the appellant's near the scene and removed a rifle through the rear, right-hand door. It is common ground that the appellant did raise these matters with Mr. Lavery and that the latter had some correspondence with the police concerning the vehicle. However the car was returned to the appellant's family and sold before any appropriate examination was carried out. In his affidavit of 31st March, 1993 in support of this appeal, the appellant placed great weight upon this matter, urging that he had communicated its importance to Mr. Lavery prior to the trial and prior to the disposal of the vehicle. As I have said, Mr. Lavery agreed that the matter had been raised with him but did not attach great weight to the matter, or at least not as much weight as the appellant now does.

Unfortunately for the appellant, the importance which he attaches to the vehicle has caused him to act in an inappropriate way, reflecting adversely on his credit. Correspondence between the appellant and his solicitor is in evidence, being exhibited to one or other of the appellant's affidavits and to the affidavit of Mr. Lavery. Mr. Lavery has exhibited the originals of faxes and letters received from the appellant. The appellant has exhibited his file copies. The first relevant document is a fax dated 23rd March, 1992 to Mr. Lavery. The appellant's file copy is part of Ex. D to his affidavit of 31st March, 1993. No doubt, this was part of the course of communication between solicitor and client in preparing for his trial which took place in August and September of last year. The appellant's copy contains the words, "The car must be checked", which words are underlined. The fax received by Mr. Lavery, in other respects obviously generated from the same document as that which generated the copy exhibited by the appellant, does not bear those words. A file copy of a fax of 2nd April, 1992 was similarly exhibited by the appellant. It bears at its foot, following an asterisk, the words, "Please attend to the car, urgently with Parker", and the last two words are underlined. The asterisk and these words are missing from the fax received by Mr. Lavery.

In a copy of a fax exhibited by the appellant and dated 13th May, 1992 appear the words:-

"Copy of signed stat. decs. of Rosina and Tina + car checked."

Again, Mr. Lavery's fax did not contain the words, "+ car checked".

There is a copy of a fax dated 18th May, 1992 exhibited as part of Ex. H to the appellant's affidavit of 31st March, 1992 which bears a postscript as follows:-

"P.S. I need my diary from the police. I am concerned about the car - please attend to it."

The fax received by Mr. Lavery lacked the postscript.

In a copy of a fax of 3rd June, 1992 also exhibited to that affidavit, this note appears:-

"Please confirm about the car (double underlined) the door must be checked and the coloured white strip (underlined) at the bottom. Ask John to go with you. It is very important. My life is at stake please."

Once again the whole of this note is absent from the fax received by Mr. Lavery.

In my opinion, the differences between the appellant's copies of the various items of correspondence and the corresponding items received by Mr. Lavery strongly suggest amendment of the appellant's copies. There can be no serious suggestion that Mr. Lavery's copies have been altered. There are possibly innocent explanations for such conduct by the appellant (although they are only barely capable of imagination), but he effectively eschewed reliance upon them. Under crossexamination, he persisted in the assertion that the various items of correspondence were transmitted to Mr. Lavery in the form in which the appellant exhibited them. It is impossible to avoid the conclusion that the appellant has sought to mislead the court by altering the documents exhibited to his affidavits so as to increase the emphasis apparently placed by him upon the importance of the motor vehicle in preparing for trial, thus making apparently more serious the failure of the solicitor to act upon his alleged instructions.

The appellant must have expected that the Crown would not have recourse to Mr. Lavery, or that Mr. Lavery would not be made aware of the contents of the various exhibits or would not examine them closely. Such a deliberate attempt to mislead the Court seriously affects the appellant's credibility, although my opinion of his evidence, based on his demeanour, was also unfavourable. I have no doubt that he will say or do anything which might benefit his case. Where there is any conflict between his evidence and that of either Lavery or Parker, I prefer the evidence of the latter gentlemen.

There are a number of curiosities concerning the motor vehicle. Its importance lay in the Crown allegation that Mrs. Van Den Berg saw a man remove a rifle through the rear, righthand door while the vehicle was parked in a street a short distance from the scene of the incident and at about the time thereof. The appellant asserted that her evidence was objectively unreliable because that door could not be opened and her description of the vehicle did not fit his vehicle. However he admitted parking the vehicle in the street at the time in question and removing a plank through the door at the back of the vehicle. He intended to use the plank to facilitate his passage across a barbed wire fence on his way to visit his wife. Obviously, the only matter in issue was whether the object removed from the vehicle was a plank or a gun. The other discrepancies go only to credit on that issue. The jury knew that Van Den Berg had failed to identify the appellant's vehicle as the one she had seen, although it probably was. They also knew of the allegation concerning the back, right-hand door. Although unequivocal evidence that the door could not have been opened at the relevant time may have cast further doubt on Van Den Berg's evidence, it is unlikely that it would have been decisive. In any event, a decision was made not to pursue the matter further in preparation for trial. Such a decision was not unreasonable in all the circumstances. I do not accept that the decision was contrary to instructions. In any event, the appellant would be in no better position at a retrial. It cannot be asserted that he should not be tried because the vehicle was not examined. Further, the appellant has, on occasions, asserted that the rear, left-hand door would not open. See p. 42 l. 24 in this court and p.307 l.36-37 at trial. These may have been inadvertent slips, but they do not assist the appellant.

In cross-examining the witness, Farlow the appellant canvassed three areas - firstly the release of his motor vehicle, secondly the contents of a jar of debris extracted from the wound, including the two discs to which I have previously referred and thirdly, the circumstances surrounding the taking of photographs, including that showing the three spent cartridges to which photograph I have also previously referred. There is no relevant issue arising out of the dealings with the motor vehicle. Similarly, I can see no significance attaching to the two cardboard discs, nor is there any line of inquiry which should be followed or should have been followed in relation thereto, although it may be that their presence in the specimen bottle is unexplained.

As to the photographs, it will be recalled that the appellant, after the completion of his cross-examination, had doubts about the accuracy of the photograph of the cartridges and sought unsuccessfully to have his counsel recall various witnesses to investigate the matter. Before us, his crossexamination of Farlow was directed towards showing that the photographs could not have been taken at the time nominated by Farlow. The witness said that he was in the vicinity at the time the photographs were taken. That time was close to the time at which he arrived at the police station with the appellant. It was also urged that the photographs show certain persons at the scene which persons could not have been there, or were not there at the time at which the photographs were said to have been taken.

This rather complex debate involved assertions that one of the photographs showed a black poodle, that another showed a shadowy figure looking out from a balcony and that a third photograph showed the reflection of a woman in a window. These matters were said to cast doubt upon the assertion that the photograph of the three cartridges had been taken at the time nominated by Farlow. Even if he had not been in the vicinity at the time the photographs were taken, or if it were shown that they had been taken at a different time from that nominated, but in his presence, the accuracy of the photographs would not have been directly challenged. It was part of the appellant's theory that if the photographs were taken later, the prospects of interference by officious bystanders were increased. In other words, the cartridges may have been moved. This may be allowed, but it does not lead to the conclusion that such interference occurred. All in all, the crossexamination of Farlow must be seen as nothing more than a fishing expedition, unrewarded in the result. The cross-examination of the witness, Wort was to similar effect and produced similar results. There were also questions concerning blood and tissue found in the laundry, but they did not take the matter anywhere.

In the end, I am compelled to say that the time spent in this court hearing evidence from the various witnesses was completely wasted and offered no assistance to the appellant in any respect. No fresh evidence was produced, and allegations concerning the conduct of the defence at trial must be rejected simply because I prefer the evidence of the appellant's lawyers to his own, and that evidence shows that the trial was conducted in accordance with his instructions and in the usual way, namely by leaving questions of tactics to the lawyers. Further, there is no reason to doubt the wisdom of their decisions in discharging their functions.

One might have hoped that this discursive examination of the various issues arising in the trial would have disposed of the appeal, however it does not do so. In the course of his submissions to us, the appellant raised various other matters which call for consideration. Two documents, said to have been relevant to issues of credibility of the witness, Christine Rovan were allegedly not available to the appellant at the trial. The first document was a declaration relating to property matters as between the appellant and the complainant. This had been in the possession of the appellant prior to the shooting, and he asserted that he attended at the premises on the day of the alleged offence to give it to his wife. The witness, Farlow probably obtained this document from the appellant's motor vehicle after the incident in question. The appellant submits that it would have assisted him in establishing the assertion that he went to his wife's premises with a lawful intention, namely to return the document to her. Whilst as a matter of strict logic that may be so, it was really not the relevant consideration in this case. It would not matter what document was in his motor vehicle if he approached his wife's unit without such document and carrying a shot gun. The document was too peripheral to have been of any significance at the trial.

The second document was some form of statement provided by Ms Rovan to the police prior to the alleged incident in which she listed the weapons held by the appellant at his home. Although again, the matter is far from clear in my mind, I conclude that the complainant must have omitted reference to the weapon which was actually used in the alleged offence although it was then owned by the appellant to her knowledge. It is the appellant's submission that her failure to refer to that weapon in the list strengthens his case that the weapon was in her possession and that he came into possession of it in the way described by him in his evidence. There may have been some forensic advantage to be derived from cross-examination about such a document, and its existence was put to Mrs. Rovan. She did not recall providing such a list. In fact, the document or a similar one was apparently put to her in cross-examination at p.58 of the trial transcript. The possibility of the weapon being in the complainant's possession was also extensively canvassed in crossexamination. Even if I am wrong in concluding that the relevant document was in court, any decision not to insist upon its production was made either by the appellant or by his counsel, and as I have said, I am satisfied that counsel's conduct was generally in accordance with his instructions. There can be no basis for challenging the conduct of the trial in reliance upon the alleged absence of this document.

Objection was taken to the failure of the Crown to call certain witnesses including Cannon, Lampo, Kuhler and Hoffman. I have already dealt with complaints about Mr. Parker's failing to call Hoffman and Cannon. It is clear that statements were available to the defence from each witness. If the Crown chose not to call them, then it was open to the appellant to do so. At the risk of being repetitive, I record once again my satisfaction that the trial was conducted in accordance with the appellant's instructions and his delegation of authority to his lawyers. No issue was made of this point at the trial, and I can see no reason to attach any significance to it now. With the exception of Hoffman, the evidence of these witnesses related to observations of the appellant and the complainants either immediately before or during the incidents in question. I see no reason to conclude that their evidence substantially contradicted the evidence of the two complainants, although the appellant sought to show that it did.

Some criticisms were made by the appellant of the learned trial Judge's charge to the jury. Most of them can be answered by pointing out that no request for redirection was made immediately thereafter. The absence of such a request usually indicates that counsel is satisfied with the overall thrust of the charge which is, after all an oral rather than a written statement. An allegation of unfairness must always be examined with that in mind. Having read the charge, I can conclude only that it appears to me to be both fair and cogent, subject to two qualifications to which I will refer at a later stage. The appellant's case was fairly put in a way the jury would understand. Part of the appellant's complaint was that the learned trial Judge assumed the presence of his mother-in-law at the scene when to some extent, that matter was in dispute in that the appellant had not seen her, or at least that was his evidence. However the appellant's evidence to this effect was specifically referred to in the charge (p.382). There was very little else that could have been done in this respect.

A second criticism was that his Honour said that a meeting between the appellant and his wife on 2nd December, 1991, that is, prior to the alleged incident, "related to financial matters". The appellant asserted that this was incorrect. However reference to his evidence-in-chief at p.259 indicates that financial matters were at least discussed at that meeting. There was also a complaint about his Honour's reference to the appellant having told the complainant, "that he had the gun and the knife and he said that he was concerned about it, concerned for her sake and concerned for the safety of his son." The appellant asserted that there was no evidence to this effect. In a sense this may be correct. Reference to p.259 of the transcript shows that the appellant said of the complainant that, "She has the gun and my knife and she keeps it in her wardrobe ...". The appellant said that he was "very concerned because of Marcel." This appears to be the evidence to which the learned trial Judge was referring. Either there has been an undetected error in transcription of the shorthand notes of the charge or alternatively, his Honour made a slip in using the masculine pronoun instead of the feminine. It is more likely to be an undetected transcription error, but in any event, it is difficult to see that it had any significance in the context of this trial. The appellant complains about the learned trial Judge's description of his account of the main incident. At p.358 his Honour said:-

"He (the appellant) said that Christine asked him why he had taken the gun? He turned, fell and it went off."

It is true that this was an abbreviated description of the whole of the incident as recounted by the appellant. However it was not in any sense unfair. Similarly, the account given in the charge at p.370 is truncated but not unfair. The appellant challenged his Honour's use of the word "slipped" rather than "fell", possibly because a slip may be more likely to leave discernible marks on the ground than a fall, and no such marks were found. I am unable to conclude that this constituted any unfairness to the appellant. Whilst it may have been better had the learned trial Judge given the whole of the appellant's evidence on this critical point as it appears at p.277 and 278 of the transcript, the failure to do so did not constitute unfairness. The defence was that the appellant fell and in falling, accidentally discharged the weapon. This possibility was left to the jury. In any event, at p.314, the appellant described himself as having slipped.

A further ground of complaint was that his Honour, in referring to the appellant's evidence, said that the appellant had described the ground as "wet, slippery and sloppy". In fact the description used by his Honour appears to be that on p.370 of the record, namely that, "the ground was wet, slippery and slopey (sic) and grassy ..." The word "slopey" was taken by the appellant to be "sloppy". I am more inclined to think that it is a mis-transcription of the word "sloping", which is consistent with the appellant's description of the area as an embankment up which he was climbing immediately before his wife called out to him. His concern was that the description of the ground as "wet, slippery and sloppy" might suggest to the jury that he was overstating the case as photographs of the area did not support such a description. It was clearly part of the appellant's case that the ground was wet and as I have said, in at least one part of his cross-examination, he referred to himself as having slipped. The possibility that the ground was slippery as a result of the rain was obviously an aspect upon which the defence was based. Although to describe the land as "sloppy" would have been an overstatement, I doubt that his Honour conveyed that impression. In any event, the matter is a trivial one. There was obvious no perception at the end of the charge that there had been a misrepresentation of the defence case.

The appellant also objects to the passage in the charge in which his Honour referred to the fact of a visit by the appellant to his wife's premises on 13th September, 1991, some time before the incident in question. The appellant said that on that occasion, he parked in Hemdan Court in front of the unit but did not go straight in, "for reason which he didn't quite explain", as his Honour put it. The appellant asserted that he had explained his conduct, his explanation being, "When I arrived there I was, myself, very tired and I wanted to think a bit because I was going to ask her for a divorce." (see p.263 ll. 30-32.) Whilst this may have been a satisfactory explanation in the appellant's opinion, that did not exclude his Honour from thinking otherwise. His Honour's statement that the appellant hadn't explained his conduct was clearly a comment upon the evidence. In any event, as the reference related to a previous visit, it is difficult to see that it was of any significance.

The appellant then objected to certain evidence received from Dr. Smith and from a scientific officer, Keller. It is sufficient to dispose of these points by saying that the evidence was not objected to at trial, and I am unable to see why any such objection should have been taken. The evidence related to the likely injury caused by a discharging shot gun upon a person in the position of the complainant.

The appellant took particular objection to an observation made by his Honour to the jury concerning disinterested witnesses. The relevant passage was as follows:-

"You look for disinterested witnesses, people who you think would have no axe to grind, whatever, and their evidence, you might think, is more capable of credence. This applies particularly to professional witnesses and many others you can think of. They have no axe to grind and you might think their evidence is entitled to considerable weight."

As a comment upon the evidence of the experts, I would have though this comment unobjectionable. However for reasons which I will come to later, it may be that there is some basis for complaint. The appellant certainly thought that the observation had an application beyond expert evidence. He suggested that it might have led the jury to accept much non-expert evidence as being disinterested. As I say, I will deal with this matter later.

The appellant also objected to a passage in the charge at p.360 where his Honour said that x-rays showed that there were still 50 pellets inside the complainant's body. This complaint is indefensible. At p.79, Dr. Smith said that he had examined the x-rays and that he estimated there were at least 50 pellets in the vicinity of the wound.

The appellant objected to a further passage in the charge at p. 363 where the learned trial Judge said:-

"Also, it was relied upon by the prosecutor that the accused did not rely upon his normal safety practices that day which one would have thought a man with his experience would automatically do."

This is a comment upon a comment and was nothing more than a summary of the Crown case. The jury was perfectly capable of assessing its validity.

The appellant also objected to a passage at p.376 of the charge where the learned trial Judge said:-

"The accused says he tripped - slipped or tripped - resulting in the accidental discharge of the gun and the twisting of his ankle. This, as already indicated, has been contradicted by Christine and Rosina who said that he had a firm stand, and by other evidence concerning no slip marks, no early complaint by the accused to the police or others that it was an accident; his expertise of safety matters relating to guns and by various witnesses who gave evidence of his statement of intention over a long period."

Both Christine and Rosina Rovan gave evidence to the effect alleged by his Honour; see p. 51 at about ll.10-30 and p. 293 at ll. 53-60. It is true that skid marks would not necessarily have been left on the ground, but one would have thought that a matter sufficiently obvious in itself not to need restating. The reference to early complaint calls for further consideration. At pp. 360 and 361, the learned trial Judge also said that Farlow had said that the accused had not complained of any accidents. Farlow did not give such evidence, however the appellant was cross-examined at p.317 ll.28-50 and agreed that he had not made any claim of accident at the scene. The statement in the passage quoted above that there was no "early complaint" of accident was therefore correct, however that is not the end of the matter.

The Crown concedes that his Honour was in error in suggesting that the failure to give an account of accident at an early stage may go to exclude accident as such a statement is contrary to the decision of the High Court in Petty v. The Queen (1991) 173 CLR 95. The Crown submits that notwithstanding this error, the case is a proper one for the exercise of the proviso. The Crown case was a strong one, but as the issue was intention, it is difficult to avoid the conclusion that this misdirection went to the heart of the trial, although there was no request for a re-direction. In any event, there is a further problem with the charge which must be considered before the availability of the proviso can be considered.

In order to demonstrate this problem, it is necessary that I quote at some length from his Honour's remarks including one passage which I have previously quoted. The passage appears in the context of advice by his Honour as to the resolution of disputes between witnesses. At p.351-353 the following passage appears:-

"You look for disinterested witnesses, people who you think would have no axe to grind, whatever, and their evidence, you might think, is more capable of credence. This applies particularly to professional witnesses and many others you can think of. They have no axe to grind and you might think their evidence is entitled to considerable weight.

You will recall Dr. Smith, the doctor who gave evidence. He had no particular interest in the case other than giving a professional opinion. Also Mr. Axsentieff the ambulance officer, Michael Carr a neighbour, Alan Percival a neighbour, Sergeant Keller the scientific man who gave evidence - you might think that they were impartial witnesses, but that is a matter for you. The gun shop manager, Mr. Mifud, gave evidence about the purchase of the rifle that wasn't disputed, and Tania Rothenberger also, you might think was an impartial witness in the case.

Next you consider whether there was any interest or motive a witness might have in bringing about a particular result. Someone might have a particular interest in securing a result in different ways. It was suggested throughout the case by the defence that Christine and Rosina got together to paint a very bad picture of the accused. Also, the defence suggested that Mrs. Vabec, who is Rosina's sister and Christine's aunt, and who is very close to Rosina and Christine gilded the lily and that they all got together and painted a very, very bad picture of the accused which was wrong and incorrect.

The Crown Prosecutor has also suggested that the accused had great interest in that he fabricated his story.

Certainly you pay particular attention to the evidence of people who you might think have an interest in the case, but this does not mean that you necessarily reject all or any part of it. It is simply a factor you bear in mind. You consider closely the evidence, particularly that of the accused, and it might well impress you as being reliable, and evidence on which you can act or it might be such as to at least raise a reasonable doubt, but you do not assess his evidence any differently from the way in which you assess the evidence of any other witness in the case. Just give it a fair, sober consideration to see whether it impresses you as being reliable evidence on which you can act or whether it is such as to raise a reasonable doubt.

I mentioned earlier that the accused is on trial on serious charges with the focus of attention on him by everyone in the court room. You may, if you see fit, make due allowance in your assessment of his evidence for the fact that he may be nervous and apprehensive. On the other hand, you might come to a different conclusion. These are matters entirely for you.

It is some times said that police witnesses have an interest in the outcome of the case, but most of these suggestions are unwarranted. The police have a duty to the community to apprehend those who they believe break the law, and bring them to court to have their guilt determined by a jury. They naturally have an interest in doing their job properly, as do most conscientiously people. It was not seriously suggested throughout this case that any of the police officers had a particular interest, although it was suggested that some of them modified their evidence in certain respects."

Such a direction has been the subject of considerable debate in Queensland since the decision of the High Court in Robinson v. The Queen (No. 2) [1991] HCA 38; (1991) 65 ALJR 644. In that case, the High Court considered a direction in this form:-

"Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all the others has a greater interest than all the others in the outcome of the case. You might, say, 'well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.' That is a matter you have to bear in mind when scrutinizing a particular witness's evidence...

Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the fact, might well conclude that you should scrutinize that witness's evidence closely. You might think - it is a matter solely for you - but the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely."

Their Honours said in relation to these paragraphs:-

"Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of a case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most carefully scrutiny: .... to hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which the presumption gives to an accused person.

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."

In R. v. Wilson (1992) 2 Qd.R. 174 the Court of Criminal Appeal, by a majority and in reliance upon Robinson, held that where an accused person gives evidence, "the trial Judge may not direct the jury that in assessing his or her evidence, they might take account of his or her interest in the outcome of the proceedings", (P. 179, per de Jersey J.) or as I put it at the same page reference, "... in practice, it is now undesirable in the extreme that a trial judge make any reference to such interest in advising a jury on resolving conflicts of evidence." To the same effect was the decision of the Court of Criminal Appeal, similarly constituted in The Queen v. Allen (C.A. No. 171 of 1991, delivered 13th December, 1991). In The Queen v. Roach (C.A. No. No. 185 of 1991, C.A. No. 214 of 1991, delivered 29th April, 1992, The Queen v. Westropp (C.A. No. 219 of 1991, delivered 29th April, 1992) and The Queen v. Stafford (C.A. No. 122 of 1992, delivered 25th August, 1992), this Court took a more restricted view of the decision in Robinson. In those cases, it was considered that the vice with which the High Court was concerned was an invitation to perform a comparative evaluation of the evidence of witnesses according to the extent of the particular interest of each witness in the result of the trial. (See Stafford at pp. 2-3). Stafford was the subject of an application for special leave to appeal to the High Court which was disposed of by the Court on 4th March, 1993. Although the application was unsuccessful because of the very peculiar circumstances of Stafford, the Court (Deane, Dawson and Toohey JJ.) took the opportunity to expound upon the decision in Robinson. Deane J. (apparently on behalf of the Court) said:-

"It follows from the decision of this Court in Robinson v. Reg (No. 2) (1991) 65 ALJR 664, that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witness, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and any other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.

Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about 'an admission of impotence', it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence."

The reference is to the following passage in Stafford at pp. 4-5:-

"It is possible (as counsel for the appellant submits) that the eventual solution is a rule that there be no reference whatever to the interest of an accused person who gives evidence. Such a solution would in our view be an admission of impotence, and a concession that the question is too difficult and subtle to be assisted by anything that a trial judge might say. We do not think that the problem would best be addressed by a rule requiring universal silence."

With the greatest of respect to those who have thought to the contrary, it is now clear that the High Court deprecates any reference to the interest of the accused in the outcome of the trial as being a factor to be taken into account in assessing his or her evidence. Except in unusual cases such as Stafford, it is most undesirable for the future that any trial Judge make reference to such interest where an accused person has given evidence. The High Court recognizes that interest may be relevant in assessing evidence but directs that the matter not be emphasized by reference to it in the charge.

In the present case, his Honour suggested to the jury that, "... disinterested witnesses, people who you think would have no axe to grind ..." may be deserving of greater credence as witnesses. Similarly, his Honour suggested that the jury might consider, "... whether there was any interest or motive a witness might have in bringing about a particular result. Someone might have a particular interest in securing a result in different ways." It is true that the learned trial Judge drew attention to allegations of bias made against the principal Crown witnesses, but he also drew attention to allegations by the Crown that the accused had a great interest in the outcome of the trial and associated this suggestion with a suggestion of fabrication. His Honour then summarized the position in this way:-

"Certainly you pay particular attention to the evidence of people who you might think have an interest in the case, but this does not mean that you necessarily reject all or any part of it. It is simply a factor you bear in mind. You consider closely the evidence, particularly that of the accused, and it might well impress you as being reliable, and evidence on which you can act or it might be such as to at least raise a reasonable doubt, but you do not assess his evidence any differently from the way in which you assess the evidence of any other witness in the case."

I do not for a moment suggest that his Honour was intending to invite unfavourable comparisons between the accused's evidence on the one hand and the evidence of Crown witnesses on the other, but the jury was invited to take into account interest in outcome in assessing the evidence of the accused and also to evaluate comparatively the evidence of the witnesses upon the basis of their respective interests. In that respect, his Honour was in error, although his Honour did not have the benefit of the High Court's remarks in Stafford.

The trial took place in late August and early September, 1992. At that time, the latest statement by this Court on the question was that contained in Stafford, which decision was handed down on 25th August, 1992. Thus it is understandable that no point was taken before the learned trial Judge as to this matter. It would be inappropriate to deny the appellant the benefit of the subsequent clarifying observations by the High Court in Stafford simply because the point was not raised at trial. Before us, the appellant was unrepresented. Although he did not expressly address the point of interest, he came very close to it in referring to what he perceived to be a preference for independent expert evidence over other evidence which he said was demonstrated by his Honour in this same passage. In argument before us he sought to cast his net rather more widely. In any event, I would be minded to permit him to make such amendment to the notice of appeal as may be necessary in order to raise this point. Given the disagreement which has attended the matter since the decision in Robinson, it would be most unfair to an unrepresented appellant to exclude him from relief simply because he was not himself aware of the recent resolution of a longstanding problem.

The question then arises as to whether or not this matter is an appropriate one for the exercise of the proviso notwithstanding the technical defects in the charge. As I have said, the principal issue was the intention with which the appellant discharged the firearm. On the one hand was evidence of alleged objective acts coming principally from the two complainants. On the other was the assertion by the accused that the discharge was accidental and without intention to harm. Obviously, the appellant's case stands or falls upon the impression formed by the jury of his evidence. Of course he did not have to satisfy them of his innocence, but nonetheless, a

careful evaluation of his evidence was necessary. Unfortunately, the jury was invited to discharge this task by making improper use of the absence of any early complaint of accident and with inappropriate emphasis placed upon the position of the accused person and his interest in the outcome of the trial. Both of these matters were likely to affect adversely the jury's view of his evidence. Given that the only weapon he had was the impression he was able to make upon the jury, it cannot be said that he has had a fair trial. There is no room for the operation of the proviso. The second count is so closely tied up with the first as to demand similar treatment. In the circumstances I would quash both convictions and set aside the respective sentences. I would order a new trial on both counts.

As to the application for leave to appeal against sentence, I am generally in agreement with the observations made in the joint reason of the Chief Justice and Mr. Justice McPherson. If the appeal against conviction is not to be upheld, I would agree that the application should be refused.

Although it is not completely clear, I understand that the appellant was refused legal assistance for this appeal. If so, then I would suggest that it was an unfortunate decision. Quite apart from my view of the merits, I have little doubt that the appeal on all the grounds raised by the appellant could have been disposed of very quickly by competent counsel without abandoning any of them. Instead, three judges of this Court were forced to sit for four days and then to take further time sifting the evidence. Any overall assessment of the use of resources would indicate that public money was wasted by denying this man access to legal aid.