R v Vjestica [2008] VSCA 47

Court of Appeal (Vic)|2008-03-26|Before: MAXWELL P, BUCHANAN JA and WHELAN AJA

The applicant collected Mrs Finnigan but did not tell her how Finnigan had come to be shot. 'No, I couldn't bring myself to tell her.' They then drove back to the Schlink Street house. They went around to the back where Finnigan was lying on the ground. The applicant put his windcheater on Finnigan's wound and told Gill to call an ambulance. Subsequently the police and ambulance arrived. The applicant and Mrs Finnigan left to go back and lock up the house which Mrs Finnigan had been cleaning.

79 The applicant's sworn evidence was that he did not intend to kill Finnigan. His counsel submitted to the jury, both in opening and in closing, that the shooting was not deliberate but was accidental. Defence counsel relied - as did counsel for the applicant on this appeal - on eight considerations which were said to demonstrate that intentional killing was 'a most unlikely scenario'. Those matters were as follows:

Defence counsel went through these eight points on two separate occasions in his final address. He made very clear to the jury his contention that, when these matters were taken into account, they could not be satisfied beyond reasonable doubt that this was an intentional shooting.

**80 The critical question on this appeal is whether that submission was correct, that is, should the jury have entertained a reasonable doubt as to whether the shooting was intentional or accidental or was it, on the other hand, open to the jury to be satisfied beyond reasonable doubt that it was intentional (as their guilty verdict on the count of murder indicates they were)?

81 It is important, first, to examine carefully what the evidence showed about the surrounding circumstances, and about the applicant's purpose in 'confronting' Finnigan on the Wednesday morning.**

**82 It was not in dispute that Finnigan was avoiding the applicant. In opening, defence counsel acknowledged that there was 'an apprehension and a reluctance to go home.' The evidence revealed no explanation for that reluctance, beyond the indication that there were tensions between Finnigan on the one hand and the applicant and Mrs Finnigan on the other about his wayward behaviour. Under cross-examination, the applicant admitted that Finnigan had disappointed him, but denied having hated him. He conceded that he did not like the fact that Finnigan was 'just dropping in and dropping out', but said that he put up with it. He described his state of mind at the time of the shooting as 'disappointed and angry'.

83 When asked why he went looking for Finnigan again and again on the morning of the shooting, the applicant answered, 'Because he was getting into mischief. He was going to end up in gaol sooner or later, and I didn't want that.' Asked why he took the gun with him, the applicant answered, 'To confront him about it.' He was pressed by the prosecutor to explain why that had to be done in public and why he (the applicant) could not simply have said to Finnigan: 'Look, I've found a gun at home, son, come home and talk about this.'**

Question: Why didn't you just ask him to come home; leave the gun where it was ...

Answer: Because we couldn't find him. Every time we called someone up, they'd say, no, they hadn't seen him, we don't know where he is, so I thought, well, why not go look for him.

Question: But why did you have to take the gun with you to go and look for him?

Answer: I suppose everything in hindsight, I suppose I didn't have to take the gun, but I did.

84 The applicant repeated that he had wanted to confront Finnigan about the gun. 'He had responsibilities, and that was one of them.' Asked by the prosecutor to explain what responsibilities he meant, the applicant said, 'The responsibility to us. For his actions. To be responsible for his actions.' Asked in what way Finnigan had failed to discharge that responsibility, the applicant said:

By not calling us, by not telling us where he was, by coming in at all odd hours, 6.00 am, 5.00 am. He had responsibilities ... He was trying to get into the army.

85 In final address the applicant's counsel characterised his client's state of mind in these terms:

You might think that any parent would be concerned about their child in those circumstances, particularly if you'd been into [Schlink Street] as [the applicant] had been. That house was a dive, a dump. There was torn furniture. Rubbish all over the floor. Car parts inside the car. Battery chargers. The bath that one would normally wash oneself is filled with filthy washing. There's rubbish everywhere, and as the police told you out near the rubbish bin there was a bag and it had syringes in it. That's not the house you'd be wanting your son to be in. He was a wayward boy and he was at risk of getting into further trouble. The prosecutor asked my client "What do you mean by he had responsibilities?" Well, 17 year olds do have responsibilities if they're going to live under your roof. They do have to abide by house rules. That's how we teach our children to set their values for life. You can't just go wandering off and come and go whenever you please. You do have responsibilities. But the prosecutor laughed at that. Why shouldn't the accused, if he could see the impact it was having on the family, on the mother, have an interest in seeing that that boy had at least some male direction?

So the accused has also found a gun in the pocket of [Finnigan's] jacket. Wouldn't you step up procedures at that point in time? There's been another boy at your house with a gun, for want of a better word, your stepson's got a gun. You'd be very worried, particularly a pistol, with what they're up to. It's not a rifle to go shooting with. You might put up with a 17 year old having a rifle and going shooting for rabbits without a licence. You might encourage him to get a licence. But a pistol, both of them with pistols, you would be concerned.

He didn't tell Mrs Finnigan that he'd found a gun. He was concerned that he'd confront this boy man-to-man with this gun and demand an explanation, and no doubt to give him quite a rev over it. What would you do if you found your son with a pistol, man-to-man, bigger, or he may be smaller than you? There'd be some of us that would be calm and placid and say, "Look, boy, this is not the right way to behave." Or you might be the sort that says, "Listen, son, "grab him by the scruff and say, "this gun will kill someone. If you're found with it, you can go to gaol. Get rid of it. Who are you hanging around with?

**86 The reference in the second of these passages to 'another boy at your house with a gun' is a reference to a visit said to have been made to the Finnigan house on the previous Sunday afternoon. LC gave evidence that she had gone to the house with Finnigan and two males, her boyfriend (BH) and a friend of Finnigan's (KB). One of the boys had a gun with him. She thought it might have been KB. She saw the gun but did not handle it. The three boys were talking about it on the way there. When they got to the Finnigan house, LC stayed in the van and Mrs Finnigan came out and spoke to her. Finnigan and KB went into the house. After they left, the boys still had the gun.

87 According to the applicant, Finnigan had shown him a silver pistol that afternoon, saying it belonged to KB and asking if the applicant wanted to buy it. The applicant said he did not want the gun and told Finnigan and KB to get rid of it or they would be 'really going in deep shit.'

88 BH denied that any of the three of them had had a gun. He said he knew nothing about any gun. KB gave evidence to the same effect. He said that no one that day had had a pistol with them and that LC's evidence was not true. He said he had gone to the Finnigan house that day because Finnigan had said that he could get KB a gun. KB was only 16 at the time and said he had been curious about the gun.

89 In final address, defence counsel referred to the question of the 'silver gun' as a side issue, while maintaining that LC rather than KB was to be believed and that KB had been trying to sell a pistol, not buy a gun. The judge in his charge went further and said - as a comment - that the jury might well think that what had happened on the previous weekend was largely irrelevant. It was, nevertheless, made relevant by the explanation which the applicant gave for having shown the gun to LC on the morning of the shooting.

90 The relevant part of the cross-examination was as follows:**

You agree that you took the gun with you when you went up to the door of [LC's] house?--- I agree.

Why did you do that?---She was there on Sunday with [KB], [Finnigan] and [BH] with the silver pistol. I thought if I showed her she'd tell me more about this one.

Could you explain that a bit more? You've lost me. Why - - - ?---She was there on the Sunday with [KB] and [Finnigan], right?

Yes?---With a silver pistol that she knew about, so I thought if I show her this one that I found in [Finnigan]'s room - - -

How do you know she knew about the silver pistol?---Because she was up there in the witness box and said it.

- - - In October 2003?---Because she was in the car. I mean, how could you not know?

HIS HONOUR: No, no, just answer the questions. Don't argue, [the applicant], just answer?---Well, how - he just asked me, how do I know. I don't know that.

PROSECUTOR: So why did you take the pistol in there?---I assumed she knew.

Yes. Why did you have to show her? How old was she at that time?---I don't know.

Fifteen, sixteen, something like that?---(Indistinct).

**91 In my view, this exchange damaged the applicant's credit - and his version of events as a whole - in two important respects. First, the answer which he initially gave was premised on LC's having been aware, at the time of the Sunday visit, that the other three had a pistol. When asked about how he knew, on the Wednesday morning, that she had that knowledge on the Sunday, he answered by reference to the evidence which she had given in the trial. When it was pointed out that what mattered was his knowledge at the time, he conceded that he did not know at the time that she was aware of the gun, but 'assumed she knew'. This was, in the circumstances, a very significant change of position, and an unconvincing one. The initial answer, and the retraction, invited the inference that the applicant had based his 'explanation' on what he had heard LC say at the trial.

92 Secondly, if the applicant had truly intended to show LC the gun in the hope that she would 'tell me more about this one', his behaviour on the doorstep would have been quite different. Instead of showing her the gun and saying that they were all going to 'cop it', he would have asked her whether she knew anything about the gun which he was showing her. The encounter with LC, as described by both LC and the applicant himself, was quite different in tone and content. Indeed, defence counsel was at pains to establish that what the applicant had said to LC was 'They are going to cop this' - and that 'this' was a reference to the gun. That statement could hardly have been more different from the request for information or explanation which the applicant claimed he was intending to make.**

**93 I turn now to consider the evidence concerning how the shot came to be fired, and the competing theories on that subject advanced by the prosecution and the defence respectively. The defence accepted that, at the time when the applicant held the gun against Finnigan's body, it was both loaded and cocked.

94 As the police firearms expert explained to the jury, it was a single shot weapon. It had originally been a .22 bolt action rifle, which had been cut down to the size of a pistol. It had to be loaded by hand. The applicant's evidence was that he did not know the gun was loaded. I referred earlier to his account of having pulled the trigger after removing the gun from the jacket where he had found it.[47] The gun had been in his possession (either carried by him or in the glove box of his car) for the entire time between his first discovery of it and the shooting of Finnigan. It was not in dispute that the gun was loaded when the applicant pulled it from his trousers.

95 The police expert explained the cocking mechanism. Cocking 'brings the firing pin back, which is held under spring tension and held back by the trigger mechanism.' He said that the gun had to be cocked manually but acknowledged under cross-examination that this could be done unintentionally:**

Now if I have it in my trousers and I endeavour to pull it out it can be cocked in the process of pulling it out of my trousers? --- It can.

Now similarly, I'll just watch that pin, if it's in the back of my trousers and again if I pull it out in the process of pulling it out I can have cocked it, can't I? It's quite easy to do, isn't it? --- You can, yes.

Thank you. So the bottom line with this gun is, apart from it being an illegal cut down rifle, it is an unsound weapon in that we've seen that it falls apart but it doesn't have a trigger guard? --- That's correct.

And that so at close contact if one's got it cocked and if, for instance, someone came right up to a person and placed it at their neck with their hand or that person turned, if it's pushed like that and the person turns it can be discharged by mere contact with the body? It's a bit hard for me to do it on myself because I'm not going to do it to anybody else, but that's true, isn't it? --- I see what you're saying but you still need pressure on the trigger.

Indeed, by making contact with the person it can occur? --- As long as the pressure's on the trigger, yes.

96 As to the required pressure on the trigger, the expert told the jury that the pressure required on the trigger of this gun was 3.75 pounds or 1.7 kilograms. This was said to be within normal limits for a rifle. The expert also pointed out that the gun had a safety mechanism which, once engaged, meant that the gun could not be discharged accidentally. There was, however, no trigger guard. The presence of such a guard would prevent someone 'inadvertently knocking the trigger and discharging the firearm.' Defence counsel pursued this issue in cross-examination:

So even though the trigger pull on this gun is normal and it's not what you'd call a hair trigger, if I bumped it against something, I've hit my finger, the gun is, you heard it click and fire then if it was loaded?---I did, yes.

So that all someone needs to do is bump close against something with their finger and they can cause it to be discharged whether they intended to pull the trigger or not?---Yes, as long as there's enough pressure on the trigger - - -

I haven't been slamming my arm as if to produce a bruise, I only have to push against another person, don't I?---Yes. You have to push three, three-quarter pounds pressure.

Be that as it may, that's easily achieved by what I've just done and demonstrated; isn't that right?---Yes.

97 The applicant's description of the shooting was brief. Asked by his counsel what he did with the gun after he had pulled it out, he answered:

I went to push him back with it, with the barrel. As I pushed him back with it, pushed and then I heard, pop ... [My intention was] just to show him the gun. Just to say: "What are you going to do with this? Why even have it in the house?".

98 Under cross-examination, the applicant gave these answers:

Where was the gun at the time that you first spoke to him?---I had freed it from behind my belt and it was in my hand like that, sort of pulled it out, not sure how, like that.

Did you bring it straight up as you pulled it out, or did you - - -?---First it was more to there, and then when he said "Oh" - what I said to him, "Oh, you think you're a big man", and he said something, and then that's when I went - pushed it - pushed him back with it.

Why did you push him back with the gun?---I suppose it's a stupid thing to do, but I did. I just wanted to push him back with the barrel.

Why didn't you just push him back with your hand?---I could have done that.

Why didn't you?---Well, I didn't. I wasn't thinking at the time.

HIS HONOUR: Sorry?---I said I was quite upset at the time about the gun, so I wasn't thinking.

PROSECUTOR: When you say you were upset, were you angry?---Angry and disappointed.

But you spoke very calmly at the time, didn't you?---Yes, but I wasn't in a rage.

How would you describe your state at that time?---Disappointed and angry.

What do you say you did with the pistol? Where did you put it?---What do you mean?

What did you do with it? You've got it up in your hand, you've had this conversation, pushing it towards [Finnigan], where did you get him with it?---Around about that area there.

Was the gun cocked when it was in your hand?---I don't know.

You hadn't at any stage checked inside to see if there was a bullet inside?--- No, I didn't.

Did you hit him flat on?---I couldn't say. All I know is I pushed it up against him here, around about this area here, and pushed back.

Then the gun just went off, did it?---When I pushed him back with it, took a step back, it went off.

Was he going backwards when the gun went off?---He might have been.

That's your recollection of how this happened?---That's right.

That it wasn't a smooth action of bringing the gun up and bang?---No.

99 In final address, defence counsel argued that the only realistic possibility was that the gun was cocked accidentally when the applicant removed it from his trousers.

... [A] police firearms expert agreed that it is easy to cock it if it's in your trousers and it would be if it's tucked in tight because you've got the pressure of the belt, your large stomach and you pull it out by the black end ...

Counsel argued that the gun would not have been cocked at the time it was in the applicant's trousers, because that would have created a real risk of serious injury to the applicant. Equally, counsel noted, none of the eyewitnesses saw the applicant cock the gun after he removed it from his trousers. '[N]o one saw that. The gun came out in a fluid motion. No one saw a second hand come in and cock the gun.'

**100 Counsel's reference to 'a fluid motion' accurately reflected what the eyewitnesses had described, although - contrary to the applicant's version - all three described the applicant as having pulled the gun from behind his back. Certainly none suggested - nor was it suggested to them in cross-examination - that the gun had appeared to get stuck or caught up as the applicant pulled it out, such as might have had the effect of inadvertently cocking the gun.

101 The prosecutor dismissed the accidental cocking theory. Referring to the police firearms expert, he said:**

... [H]e agreed it can be cocked when being pulled out of the pants but he wasn't asked how that would occur, what the mechanism is. And you know that you have to pull it so there has to be some force pulling it back and considerable force. You'll have the exhibit in the room, you'll be able to pull it, see how much force it takes. But what mechanism is going to cause that when the gun's taken out? You saw Senior Constable Stewart was able to take it out. And then the demonstration, Mr Stewart pulling the gun out by the cocking mechanism again showed you there's a fair amount of force required to make that gun cocked.

**102 The prosecutor then turned to the defence proposition that the gun discharged by accident. He reminded the jury of the expert's evidence that the gun could only be discharged if the requisite pressure was applied to the trigger. He pointed out by reference to a photograph of the gun (which was in the jury's possession) that there was a distance of something like 50 mm, or two inches, between the end of the barrel of the gun - which the applicant said he was pushing against Finnigan's chest - and the point where the applicant's finger would have been resting against the trigger. That meant it was physically impossible for the trigger finger itself to bump against the chest, unless the gun was at an angle and somehow moved side-on against the victim. But, as the prosecutor correctly pointed out to the jury, 'there is no evidence [of] anything like that having happened here. Straight out, bang.'

103 Certainly the applicant gave no such evidence.[48] It is necessary, nevertheless, to examine the defence submission regarding the apparent angle of entry of the bullet.**

**104 The post-mortem photographs showed, and the medical witnesses confirmed, that the point of entry of the bullet was at the base of the deceased's neck. The expert pathologist called by the defence (Dr Dodd) expressed the opinion that the barrel of the gun was being placed hard against the skin at the instant of discharge. The Crown's expert agreed that the possibility of hard contact could not be discounted. The defence relied on an x-ray showing the bullet lodged in the right shoulder region and argued that the gun must therefore have been pointed at an angle to the deceased's chest, not perpendicular to the chest as the Crown maintained. Otherwise, counsel argued, it would have been expected that the bullet would have gone straight through and out the back of the deceased's neck or would have lodged in his spine.

105 Under cross-examination, however, Dr Dodd was asked whether he could say at what angle the muzzle had been held:**

That's a little more difficult to say. It could have been perpendicular to the body or slightly angulated, but that's a very difficult interpretation. I think the only way you can talk about angulation would be analysis of the trajectory of the bullet through the body, and even that may have been modified by bone and soft tissues within.

Dr Dodd clarified that, when he said the barrel had to be 'hard against the chest', he meant

that's not just resting against the skin, it actually has some pressure and possibly would indent the skin at the instant of discharge.

Dr Dodd did not believe that the contact of the gun with the skin would have been a glancing blow. Nor did he consider that the sort of markings he observed on the deceased would have been caused had the gun been held at a 45 degree angle. To produce the observed markings, Dr Dodd said, the whole of the round end of the gun had to be in contact with the skin.

106 In re-examination of Dr Dodd, defence counsel explored the possibility that the observed marking could be caused if the gun

was pushed against the base of someone's neck, which is soft, enabling the end of the muzzle to be pushed into the skin ... and you turned it to the side, that could still leave the muzzle buried in the skin and leave a full circular abrasion ...

If there's sufficient pliability of the skin to do that, yes, that is a distinct possibility. That would only - the only way that wouldn't occur would be if it was a solid rigid part of the body like the actual chest wall. If it's the skin of the abdomen or pliable skin of the neck, then you could angulate the muzzle and still get full representation of the muzzle against the skin.

Defence counsel relied on this evidence in final address, characterising the point of entry of the bullet as 'a fleshy area'. That was, of course, a matter for the jury to consider having regard to the photos. The point of entry shown on the photographs is not, however, in the fleshy part of the neck but rather 'a solid rigid part of the body like the actual chest wall', to use Dr Dodd's phrase.

107 The prosecutor's closing address dealt shortly with the applicant's reaction immediately following the shooting:

There he is, he's just shot a child of his partner, he just walks off. Doesn't ring an ambulance, doesn't say "Oh my God what have I done", "Quick help" nothing like that, cool as a cucumber, turns around and walks off. No concern at that stage for the person he shot in the chest.

108 The evidence of the eyewitnesses on this point was consistent, and unchallenged. After the shot was fired the applicant

just turned around and walked back and jumped in his car and drove off. [He said] not a word. He just turned around and walked down the driveway.

It was put to this witness in cross-examination that when the applicant got in his car there was no screeching of brakes. He answered, 'No, he didn't even really take off that fast, took off normally.' According to JS, after the shooting Finnigan turned around and the applicant 'walked back to his car, jumped in his car. He just jumped in his car and drove off.' CH said that, after she heard a bang, the applicant 'turned back around and got back in his car, and drove off.'

109 As noted earlier, the applicant's explanation for leaving the scene was that he 'went numb, I was just scared, I was frightened.' He said he had panicked. His only thought was to go and get Mrs Finnigan.[49] This is how defence counsel in his final address sought to characterise the applicant's reaction:

[The applicant] turns, he could be, as he said, numb, he doesn't run to his car, he walks to his car, not the behaviour of someone who is trying desperately to get away from the scene of his crime lest there be yet more witnesses who might recognise his car, recognise him, and he drove away, but did he flee to Warrnambool, to Queensland? No. He drove a short distance around the block, because remember it was nearby that his wife or partner was working, to get the mother, and to bring her straight back.

Now that's quite bizarre isn't it? He hasn't warned any of these people to keep quiet about anything. He hasn't said anything to the boy, he doesn't know if the boy is still alive, remember he turned and walked or ran depending on which version you have, around the back, and who's he bringing back, the mother of this boy, his de facto. When he gets back he puts a windcheater under [Finnigan's] chest.

His de facto's child. He's there. He would have to know that if the ambulance are being called the police are going to be there soon, but where is the gun. This one shot and throw it away gun. This assassin's gun. Where is it? In a drain just around the corner? Throw[n] into someone's backyard? I don't know the area well but if you lived in the area there might be a woodland area, throw it there, and then get the mother, but he doesn't, he puts the gun in the glovebox. He hasn't got the heart to tell the mother "I just shot your son". He puts it in the glovebox and he returns to the address. He's on the phone out the front calling an ambulance ... [W]hat happens in those situations? Sometimes you'll get all the services there. You'll get the SES, you'll get a fire brigade, but you know that if it's a shooting that the police are going to turn up, and so he waits and the police arrive. Is this - this is incredibly brave stuff. The boy's alive, and if he's capable of holding really serious conversations he'd say "[the applicant] shot me." [The applicant] says "I was panicking and frightened".

**110 Doubtless defence counsel was correct to submit that the applicant did not behave like someone 'trying desperately to get away from the scene of his crime'. Equally, in my view, he did not behave as might have been expected had the shooting indeed been a terrible accident. That was, of course, a quintessential jury question, to be decided on the basis of their experience of human behaviour. In my opinion, this behaviour was flatly inconsistent with how any person in the applicant's position would be likely to have responded had he/she accidentally shot someone in the base of the neck.

111 On the applicant's version of events, he had not had the slightest thought of causing harm to Finnigan. On the contrary, he was concerned for Finnigan's welfare, wanting to make sure he did not end up in gaol. He wished only to remonstrate with Finnigan and to make him face up to his responsibilities and, in particular, to provide some explanation about the presence of the gun. If that were so, it seems to me almost inconceivable that, once the gun discharged and the bullet had entered Finnigan's body near his vital organs, the applicant would not have displayed immediate and frantic concern for Finnigan's well-being and insisted that an ambulance be called immediately, or called one himself. As it happened, however, the applicant displayed no emotion, made no expression of concern and made no attempt to find out how badly wounded Finnigan was. He simply walked away. Although he had his mobile phone with him, he did nothing to arrange for an ambulance until after he had gone to collect Mrs Finnigan and had returned to the scene of the shooting. In those circumstances, the jury 'might reasonably conclude that it would put an incredible strain on human experience'[50] to accept even the possibility that it was an accident.**

**112 As noted earlier, the first of the eight matters relied on by the defence was absence of motive. The prosecutor conceded in final address that the Crown had not proved a motive for the shooting but said, correctly, that this was not an essential ingredient of the charge of murder. Acknowledging that this was so, defence counsel went further and argued that not only had no motive been shown but that the evidence pointed to the absence of a motive. That, he contended, was a factor which the jury could take into account in determining whether the applicant had intended the death or serious injury of the deceased.

113 In his charge to the jury, the trial judge confirmed to the jury that, as both counsel had told them, there was**

no necessity to prove a motive in a crime. The crime is proved, the motive is not necessary. It is not necessary to prove a motive. If there is a motive then that may strengthen the Crown case, but it is not an essential part.

Ground 3 contends that the judge erred by not directing the jury 'that the absence of any evidence of a motive on the part of the applicant was a consideration in his favour on the question of intention.' It was submitted that, given that absence of motive was 'a critical aspect of the defence case that death resulted from an accidental shooting', and further because the charge was murder, the jury should have been directed that the absence of a proved motive was a consideration counting in favour of the applicant on the question of intention.

114 In my opinion, this submission (and hence Ground 3) must be rejected. The authorities relied on by the applicant provide no support for the proposition that the judge was bound to give any such direction. Far from assisting the applicant, what was said in the joint judgment in De Gruchy v The Queen[51] (Gaudron, McHugh and Hayne JJ) provides the answer to the submission.

The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.

It clearly appears from the trial judge's directions that much emphasis was placed on the absence of motive in defence counsel's final address. Apart from instructing the jury, correctly, that the prosecution did not have to prove motive, nothing was said by the trial judge to detract from the force of defence counsel's submission in that regard. ...[52]

115 It may be that the prosecutor conceded more than was necessary in relation to motive. After all, anger, and a desire to punish, are motive forces of human action. All too often, anger motivates violent behaviour, sometimes murderous behaviour. But it is unnecessary to resolve this question. It is sufficient to say that this was not a case of proven absence of motive.

**116 In my opinion, the jury's verdict is neither unsafe nor unsatisfactory. I do not consider that the jury ought to have had a reasonable doubt as to whether the shooting was accidental.

117 There was no 'obstacle' to a guilty verdict. On the contrary, there were, as I have sought to illustrate, very significant obstacles in the way of the jury's acceptance of the defence theory of accident. Of course, the defence had only to raise a reasonable doubt in the jury's mind. It was for the prosecution to exclude the possibility of accident. But in my view, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the possibility of accident had been excluded, having regard at least to:**

the fact that the gun was loaded when the applicant pulled it out of his trousers and was cocked when he placed it against Finnigan's chest;
the lack of any description from the applicant or from eyewitnesses of any action by him which would have had the effect of cocking

the gun accidentally;
the applicant's unsatisfactory explanation of his reason for showing the pistol to LC;
the applicant's unsatisfactory account of his reason for confronting Finnigan with a gun; and
his complete failure to respond to the shooting as he would have been expected to respond had it in truth been an accident.

118 Questions were properly raised by the defence about the improbability of a shooting in these circumstances being intentional. But much of the applicant's admitted behaviour that morning was improbable, almost inexplicable. I refer, for example, to his having confronted first LC, then Finnigan, with a gun, and to his having failed to tell Mrs Finnigan immediately that he had (accidentally) shot her son. For the reasons I have given, I do not consider that any of the matters raised by the defence precluded the jury from being satisfied beyond reasonable doubt that this was an intentional shooting.

**119 I agree with the President, for the reasons he has stated, that the application for leave to appeal against conviction should be refused.

120 With respect to the complaint that the verdict was unsafe and unsatisfactory, it was common ground between the parties that before the gun discharged, the applicant placed it against the deceased's body. The jury was entitled to find that the applicant had loaded and cocked the gun. The applicant felt anger towards, or at least irritation with, the deceased. When the gun discharged and the deceased fell, the applicant behaved as if he had intended to bring about that result. I do not think that the jury, which heard, and could evaluate, the applicant's account of the shooting, were bound to have a reasonable doubt as to the guilt of the applicant.**

**121 For the reasons given by the President, I agree that the application for leave to appeal should be refused.

[1] (Unreported, Supreme Court of Victoria, Lush J, 4 August 1970).

[3] Ibid 358 [10] and the cases there cited; Cording v Trembath [1921] VicLawRp 27; [1921] VLR 163, 166-7 (Cussen J): to ensure that not only would a fair trial be had in fact 'but that it should be had in such circumstances that all reasonable men would so admit.'

[4] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 47 (Brennan J), cited by Nettle J in R v Iaria and Panozzo [2004] VSC 96; (2004) 9 VR 425, 430 [18]; Georgiou [2002] QCA 206; (2002) 131 A Crim R 150, 154 [23].

[5] [2004] VSC 96; (2004) 9 VR 425, [10] citing R v Yanner [1998] 2 Qd R 208, 209 (Pincus JA).

[6] Cf R v Cattell [1968] 1 NSWR 156.

[7] R v Holden (1833) 5 B and Ad 347; [1833] EngR 653; 110 ER 819; R v Boughton [1895] 2 IR 386.

[12] The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592, 603-4 (Mason CJ and Toohey J).

[16] See, for example, Gilbert v R (2000) 201 CLR 414, 425-6 [31]-[32] (McHugh J).

[17] [2005] VSC 9, [21]; see also R v Vandergulik [2008] VSC 17, [10]-[11] (Teague J).

[19] See Davidson v Victorian Institute of Teaching [2006] VSCA 193, [19] (Maxwell P).

[20] Cf Re Portillo [1997] 2 VR 723; R v Briffa (Unreported, Victorian Court of Appeal, Winneke P, Brooking and Callaway JJA, 21 April 1997); R v Frugtniet [1999] VSCA 58; [1999] 2 VR 297, 301 [5] (Brooking, Phillips and Buchanan JJA).

[21] Here citing Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 50 (Mason CJ and McHugh J).

[23] See also R v Hodgkinson [1954] VicLawRp 23; [1954] VLR 140, 144; R v Chaouk [1986] VicRp 70; [1986] VR 707, 712 (Kaye J), 717 (Hampel J).

[24] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 55-6.

[26] Ibid [306] (Myles, Von Doussa and Weinberg JJ).

[30] [2007] NSWCCA 78, [17] (Latham J, with whom Hunt AJA and Johnson J agreed).

[31] [1994] HCA 30; (1994) 181 CLR 41, 56 (Mason CJ and McHugh J), 88 (Toohey J); and see The Queen v Goodall [2007] VSCA 63; (2007) 15 VR 673, 678 [25] (Redlich JA).

[32] Crimes Act s 568(1). See Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 255-6 [10]-[12] (The Court); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 623-4 [58] (McHugh, Gummow and Kirby JJ); R v CHS [2006] VSCA 19; (2006) 159 A Crim R 560, 587 [124] (Eames JA).

[34] Ibid 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 614-5 [25] (Gleeson CJ, Hayne and Callinan JJ), 623-4 (McHugh, Gummow and Kirby JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] (The Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

[37] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 622 (emphasis added in MFA v The Queen).

[40] Ibid [113] (citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3).

[41] Ibid. See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA).

[42] R v Shah [2007] SASC 68, [4] (Doyle CJ).

[43] Morabito v R [2007] NSWCCA 126, [34] (Mason P).

[45] [2007] SASC 68, [6] (Debelle J).

[46] See also R v Berry [2007] VSCA 202, [107]-[108] (Redlich JA).

[47] See [70] above.

[48] See [97]-[98] above.

[49] See [78] above.

[50] Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 243 (Dixon CJ).

[52] Ibid 93 [30]-[31]; see also Griffiths v The Queen [1994] HCA 55; (1994) 69 ALJR 77.

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