Regina v Katarzynski

Conviction Appeal : Ground 1 6 The Ground is: "The trial Judge erred in his directions on voluntariness, causation, murder by reckless indifference to human life, self-defence and excessive self-defence where the identified basis for primary liability was reckless indifference to human life." 7 This Ground conflates what are in fact four separate topics about each of which present complaint is made in connection with the learned trial Judge's directions. It is necessary to look separately at each component part of the Ground. · Causation 8 It is appropriate to begin the discussion by citing some relevant authorities. 9 In Royall v The Queen [1990] 172 CLR 376, Mason CJ made the following observations upon the topic of causation, albeit the particular case was not a shooting case: "Ordinarily there is no occasion for a trial judge to spend much time on the identification of the act causing death, but there is a "logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s. 18 are to be satisfied", to repeat the words of Barwick CJ in Ryan v The Queen . In Ryan the trial judge's directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan's state of mind satisfied the requirements of s. 18, depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased's back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable: see per Barwick CJ; and note Reg v Crabbe (where the test applied by Barwick CJ in Ryan was discarded in favour of that just stated). Thus the case was one in which identification of the act causing death required "specific and close consideration". Yet the directions given to the jury "appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death", without descending to particularity: see, generally, per Barwick CJ. In Ryan , the Chief Justice pointed out that "the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction". So the question on this aspect of the present case is whether the trial judge adequately directed the jury as to the particular acts any one of which they might regard as the cause of the deceased's death. In this respect there was, in my view, just as there was in Ryan , a need for the trial judge to give specific and close attention to the identification of the various acts which, on the Crown case, might have been the cause of death." (172 CLR at 385.386) 10 In Murray v The Queen [2002] 211 CLR 193, five Justices of the High Court of Australia discussed in four separate judgments the topic of causation in the particular context of a death by shooting. The case there in point was not governed, as the present appellant's case is governed, by the provisions of the Crimes Act 1900 (NSW); but was governed, rather, by the provisions of the Queensland Criminal Code, section 23 of which provided that a person was not criminally responsible for (a) an act or omission that occurred independently of the exercise of the party's will; or (b) an event that occurred by accident. 11 Four members of the Court, Gaudron, Gummow, Hayne and Callinan JJ, decided the appeal upon the basis that the trial Judge had misdirected the jury on the onus of proof. Kirby J was of the contrary opinion on that particular point. Two members of the Court, Kirby and Callinan JJ, were of the opinion that the trial Judge had erred in not having directed the jury on the topic of unwilled acts as contemplated by paragraph (a), paraphrased above, of section 23 of the Code. Gaudron, Gummow and Hayne JJ were of the contrary opinion on that particular point. 12 Mr. Murray, like the present appellant, had presented a loaded firearm at his victim, allegedly with the sole intention of frightening the victim; but denied having deliberately pulled the trigger. 13 Gaudron J reviewed, inter alia, Ryan (supra), expressly adopting as "legally and logically correct" the analysis made by Barwick CJ in that earlier case. Her Honour thought that it had been incumbent upon the trial Judge to instruct the jury, in appropriate terms, that the jury must decide " ………… whether the prosecution had excluded beyond reasonable doubt the possibility that the gun had discharged without pressure being applied to the trigger and, also, the possibility that it was discharged by an unwilled reflex or automatic motor action". Her Honour accepted, however, that the charge to the jury had dealt sufficiently with those points. [211 CLR at pp 199-201 passim] 14 Gummow and Hayne JJ delivered a joint judgment. Their Honours discussed at some length, and as follows, the difficulties that can often beset the identification, in a case of death by shooting, of the actual death-causing act: "Consideration of the several cases in this Court in which questions about unwilled acts have been examined reveal some of the difficulties that, if not implicit in the concept of unwilled acts, at least are likely to arise in dealing with that concept. Prominent among those difficulties is understanding what is the relevant "act", or in this case, the relevant "death-causing act". Although it may now be regarded as clear that in this case, as in Falconer , the death-causing act was the discharging of the loaded shotgun, why is that the relevant "act" and what exactly does it encompass? In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly defined is that "act", the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the "death-causing act", the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As H L A Hart pointed out more than forty years ago, a theory which splits an ordinary action into three constituents - a desire for muscular contractions, followed by the contractions, followed by foreseen consequences - is a theory based on a division quite at variance with ordinary experience and the way in which someone's own actions appear to that person. As Hart said, "The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions". The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan . In Ryan , Windeyer J characterised what had happened as Ryan pressing the trigger "in immediate response to a sudden threat or apprehension of danger". In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that: "The latent time [between threat, or assault, and firing the weapon was in each case] no doubt barely appreciable, and what was done might not have been done had the actor had time to think." But to identify the "act" as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant "act" which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant "act" would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences. That is why the "act" to which s 23(1) refers is not restricted to the appellant's contracting his trigger finger. But what is encompassed by saying that it is the appellant's discharging the loaded gun that must be willed? It now seems clear from Falconer that the "element of intention" which Windeyer J (in both Mamote-Kulang v The Queen and Timbu Kolian v The Queen said should be added to the notion of will may not always be helpful, but there is much force in the views expressed by Windeyer J in Ryan to the effect that the language of "will" and "intellect", "unintentional" and "inadvertent", is necessarily imprecise. As Barwick CJ said in Timbu Kolian, "we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse". In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin. In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily. Approaching the problem in that way may reveal which party must raise the issue to have it considered - the so-called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption. Rather than adopting approaches such as these, it is necessary to focus upon the relevant "act". Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may be steps to which the appellant would say that he had turned his mind; others may not have been accompanied by conscious thought. It is by no means unknown for someone to carry out a task (like, e.g. loading a weapon) without thinking about it, if it is a task the person has undertaken repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at the source of that threat as soon as the threat is perceived, and may do so without hesitating to think. But in neither example could it be said that the act (of loading or firing the weapon) was an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of discharging the loaded shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole , was not willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion of sleep walking, epilepsy, concussion, hypoglycaemia or dissociative state." [211 CLR at 209 through 211 [53] ] 15 Kirby J dealt briefly and as follows with the topic of causation: "I agree with Gaudron J that the identification of what was the relevant "act" and whether it was willed or not were questions for the jury. They were not questions of law for the judge. Even if the final "act" was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate "act" that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a "reflex" act, it was still a question for the jury whether that act was properly to be viewed as having occurred "independently of the exercise of the [appellant's] will." [ 211 CLR at 222[89]] 16 Callinan J, the remaining member of the Court, dealt as follows with that topic: "There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter's acts in placing himself in such a position as to give the "act" the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the "act" itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident). A defence under s 23(1)(a) does not depend upon proof of, or the possibility of automatism or the like. It is available if the prosecution is unable to prove that the act was not willed, whether the absence of will can be traced to a condition which can be satisfactorily described in medical or psychological terms, or whether it was simply an act neither impelled by the mind nor which the mind endorsed immediately before, or at the time of its occurrence. There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the "act" for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare. The jury in this case would not have been obliged so to regard this case. Here the relevant act was, as the appellant submitted, identifiable, the discharge of the gun. Everything leading up to that point might have made it unlikely that it occurred as an unwilled act, but as there was evidence that it was, an obligation to give a direction about it by reference to s 23(1)(a) did arise." [ 211 CLR 235 [148] through 236 [150] ] 17 It seems to me that the foregoing authorities distinguish, in a case of the present kind, between a finding of fact that identifies a death-causing act; and a discrete finding of fact that characterises, as having been either willed or unwilled, the death-causing act that has been so identified. The first of those two discrete findings of fact deals with the topic that the law calls 'causation'. The second of the two findings deals with the topic that the law calls 'voluntariness'. 18 In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things;

[1] That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim.

[2] That the identification of any such act was a matter of fact for the jury alone.

[3] That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the evidence at trial.

[4] That the evidence left open for the consideration of the jury two obvious practical approaches, mainly: (a) to identify as the relevant act the firing in quick succession and at close range of three pistol shots, one of them lethal, into the body of the victim; or

(b) to identify as the relevant act a sequence of things done by the appellant from the moment at which he pulled a pistol known by him to be loaded out of his pants; to the moment when he fired those three successive shots. 19 I would say at once that I should have thought that on the facts of the appellant's case any normal body of twelve persons would have regarded it as a matter of common sense that the actual death-causing act was the option 4 above; and that it was when proceeding to the next step of characterising that act as having been either willed or unwilled, that it would have been entirely appropriate to have had regard to the continuum of conduct commencing with the alleged luring of the victim by the appellant to the location of the shooting. 20 At the appellant's trial the jury was given written as well as oral directions of law. The jury was instructed in writing that the Crown had to prove beyond reasonable doubt, and among other things, that it had been a deliberate act of the appellant that had caused the death of the victim. That direction was amplified by the following written directions: "A deliberate act causing death. The act causing death must be the deliberate act of the accused. An act is not deliberate if it was not voluntary that is not willed by the accused. A spontaneous unintended reflex action is not itself a voluntary act. However, what act of the accused caused the death of the deceased is a matter of fact to be considered in light of all the conduct of the accused that led up to the discharge of the bullet which penetrated the heart of the deceased and caused his death. This is to be considered in a common sense way taking into account all that the accused did in discharging the gun. It includes, but is not necessarily restricted to, the pulling of the trigger." 21 In the oral directions, the trial Judge instructed the jury at an early point in the summing-up: "Now there is little doubt that the act, which caused the death of the deceased, was the act of the accused. He discharged the gun and although he can only recall two shots, there seems to be no doubt that he fired three and by all accounts one immediately after the other. But a question arises on the accused's evidence whether the act causing death was deliberate that is whether he intentionally fired the weapon and in particular whether he intentionally fired the shot that penetrated the deceased's heart and killed him." 22 Very shortly thereafter, and having given some oral directions about voluntariness, his Honour gave these directions: "But just what was the act of the accused which caused the death of the deceased is a matter of fact for you to determine in all the circumstances in which the gun was discharged. You do not necessarily isolate the pulling of the trigger as a separate and distinct act taken out of context and say is that the act which caused the death of the deceased and then ask whether there is any reasonable possibility that was not a deliberate act of the accused. In the present case you know that the accused deliberately took possession of what he knew to be a loaded gun. He says he got it earlier that night when he purchased it from a stranger. He checked that it had bullets in it. He was unaware of whether it had a safety catch or not. He deliberately placed it down the front of his trousers where it remained until he says he was confronted by the deceased outside the hotel. He deliberately withdrew the gun from the front of his pants when he saw the deceased and deliberately presented it to the accused in that he held it in front of him intending, it seems, to use it at least to scare off the deceased. Finally you would consider that three shots were fired each hitting the torso of the deceased. On those facts and that scenario it is for you to determine what, in that context and considering all his actions, was the act of the accused which caused the death of the deceased and whether it was deliberate. In the circumstances of this case where the accused has deliberately presented a loaded revolver to the deceased in a situation of a possible attack upon him, if you found that the pressing of the trigger as a response to a sudden threat or apprehension of danger was no more than a probable and foreseeable consequence of deliberately presenting a loaded weapon to the deceased you could determine that the discharge of the gun was a voluntary or deliberate act of the accused notwithstanding that he may not have meant to fire it. Of course we do not know very much about the gun: whether it had a safety catch, whether it was prone to accidental discharge, or the force necessary to pull the trigger. We know that it was, according to the accused, a revolver, and it seems from all the evidence that the shots were fired off in rapid succession. So it is not a case of the weapon having to be reloaded or re-cocked each time. On the other hand according to the accused, the gun was in his waist belt for some considerable time without discharging even though the accused apparently played pool with it there and at one stage was violently pushed or head-butted by the deceased forcing him against the wall of the gaming room. So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown's version, a deliberate firing of the weapon? If at the end of the day you find that there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder. Of course the issue only arises if you find that there is a reasonable possibility that the accused's version is true." 23 Later still, and after directing the jury on the topic of murder by reckless indifference to human life, his Honour touched one final time upon the topic of causation, saying: "Again you are concerned with the state of mind that the accused had at the time he committed the act causing death. Again it is for you to determine what is the act causing death. For example, as I said, if you found that while the deceased was approaching, the accused deliberately pulled out a loaded gun foreseeing that further violence by the deceased would occur and that in such a situation the gun would probably discharge causing the death of the deceased, then subject to self-defence and provocation, the accused would be guilty of murder even though he never intended to cause the deceased's death and even though when the gun discharged he was not intending to fire it. You should see then how important it is to determine what the act of the accused causing the death is, whether that act was deliberate and what was the state of mind of the accused at that time." 24 The written submissions of learned Senior Counsel for the appellant, (who was not counsel at trial), make the following complaints about the foregoing directions: "The first point to be made, then, is that his Honour did not deal with causation conformably with authority on the subject and, effectively, left open the possibility of the pulling of the trigger as the voluntary act causing death even if the pulling of the trigger was, in fact, a "reflex" action. This opened the way for a conviction for murder based on the brandishing of the gun. In any event, these directions gave no or insufficient attention to the role, or otherwise, in causation, of the acts of the deceased in bringing about the discharge of the firearm, this based here on the appellant's account outlined above." 25 I do not agree with those submissions. It is, I apprehend, a fair comment that the summing-up does not deal in a precisely discrete way with the separate topics of causation and voluntariness; but that is not a fatal flaw in the summing-up provided only that what was in fact put to the jury about causation was sufficient to bring the minds of the jurors to the issues that I have outlined at paragraph 17 above. In my opinion, the directions given in fact on the topic of causation satisfy that proviso. There was at trial no submission to the contrary. · Voluntariness 26 The relevant written directions have been quoted earlier herein: see paragraph 19. 27 The relevant oral instructions began thus: "In effect what the accused seems to be saying is that although he intentionally removed the gun from under the front of his pants and intentionally presented it towards the deceased intending at least to scare him away, he did not deliberately point it at him or pull the trigger. He said that, as a reaction to the deceased lunging towards him, he flinched automatically and the gun discharged. In effect he is saying that the pulling of the trigger was not a deliberate act of him; it was involuntary without any thought at all let alone the intention of firing the weapon. Well if there is a real possibility that the shot that killed the deceased was discharged by an involuntary, unintended act of the accused then it was not a deliberate act of him. In other words he did not deliberately discharge the weapon and he cannot be guilty of murder. An involuntary reflex action is not a deliberate act and cannot by itself be the basis of criminal liability." 28 These directions were followed immediately by the directions that are quoted previously herein and at paragraph 21. 29 Thereafter his Honour said: "So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown's version, a deliberate firing of the weapon? If at the end of the day you find that there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder. Of course the issue only arises if you find that there is a reasonable possibility that the accused's version is true. Of course the Crown says that you would reject this version in light of the fact that the accused fired three shots all of which hit the deceased in the torso. Whether the issue arises at all might depend to a large extent upon what other facts you find proved by the evidence. For example if you were satisfied beyond reasonable doubt of the evidence of Mr. Siofele, that is, of the accused beckoning or even whistling from the corner of the hotel then the issue may not arise because a completely different complexion might be placed upon the firing of the weapon than that given to it by the accused. Even if you were satisfied beyond reasonable doubt that the deceased never went around the corner it may follow that you would reject the accused's account of the manner in which the gun discharged. In such a case you might find that all the actions of the accused were deliberate including the firing of the shot that killed the deceased." 30 I can see no error in these directions. There was at trial no submission to the effect that there was any such error. The directions seem to me, with respect, to put clearly and succinctly the approach that was put by Windeyer J in Ryan (supra) in terms which I apprehend to stand as good law and to be, if I may respectfully say so, lucid common sense: "Words and phrases such as involuntary, unintentional, inadvertent, accidental, unmeditated, unthinking, not deliberate, unwilled and so forth are used by different writers. Their connotations often depend upon their context, and they are used in discussions which seem to drift easily off into psychological questions of consciousness, sanity and insanity and philosophical doctrines of free-will and of events uncontrolled by will. There is a discussion of some aspects of this subject in the American work, Reflex Action, a Study in the History of Physiological Psychology . I mention it, not because I profess any knowledge in this field, but because of the readiness with which the phrase "reflex action" was used in the course of the argument as a presumably exculpatory description of the act of the applicant when he pressed the trigger of the firearm. The conduct which caused the death was of course a complex of acts all done by the applicant - loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. When this was said to be a reflex action, the word "reflex" was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. But assume that the applicant's act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing. Such phrases as "reflex action" and "automatic reaction" can, if used imprecisely and unscientifically, be, like "blackout", mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their descriptive terms uniformly. Guided however by what has been said in other cases and by writers on criminal law whose works I have read, and especially by the judgments in the House of Lords in Bratty v Attorney-General for Northern Ireland , I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless. The act which caused the death was, it seems to me, using the language of s. 18 of the statute, an act of the accused. The question for the jury was whether it was an act done by him in such a way as to make the resulting homicide murder. This was the issue submitted to the jury." [ 121 CLR at 244 - 246, passim ] · Reckless Indifference to Human Life 31 The idea that murder by reckless indifference to human life should be left at all to the jury was raised by the trial Judge during interchanges with both counsel prior to the commencement of final addresses. His Honour asked the Crown Prosecutor whether he was proposing to rely on reckless indifference. The Crown Prosecutor took time to consider his response; and in due course informed his Honour that the Crown did wish to have a reckless indifference option left to the jury. There ensued a deal of discussion, the upshot of which was an indication by his Honour that he was inclined to deal with the issue by a direction to this effect: "I think realistically the intention here is, did he intentionally fire the weapon at least in the vicinity of the deceased? I am prepared to go that far and perhaps leave reckless indifference on the basis that he intentionally discharged the firearm in the vicinity of the deceased, and that they saw that that was an act which he foresaw which probably would result in death or whatever the words exactly are." 32 Trial counsel for the appellant said that he would consider further that proposal. His Honour said that, without finally ruling upon the issue, he would permit the Crown to address upon the issue, and then see how things developed. 33 The closing address of the Crown was then presented. During the address the Crown Prosecutor said this: "The Crown submits an alternative case also, members of the jury, you would find that the accused intentionally discharged the firearm in circumstances where he foresaw the possibility of death resulting, even if he didn't intend really serious bodily harm or death to result. It is clearly shown the firing of the firearm was deliberate; intentional and the firing of the three rounds, the Crown submits, would prove that he foresaw the probability of death resulting. That is the alternative basis, members of the jury." 34 Almost immediately thereafter the Crown address concluded. Thereupon, and with the express concurrence of the appellant's trial counsel, his Honour gave the jury a detailed outline of the basic legal principles relevant to the possible alternative verdicts that would be open to the jury. During the course of that outline, which his Honour emphasised clearly was not a substitute for the directions that would be given in the summing-up proper, his Honour told the jury this: "Once the Crown Prosecutor has proved to you beyond reasonable doubt that the weapon was discharged intentionally by the accused wishing to project a bullet out of the gun, then the Crown in order to prove murder has to prove to you that when he did fire the gun he intended to either kill the deceased or inflict really serious harm upon him or that he did so without either of those intentions but foreseeing, that is actually having in his mind at the time he fired the gun that by doing that the death of the deceased was a probability, foresaw the probability of death resulting from his act and that's what the Crown called, I think, reckless indifference to human life. So that's what is to be proved for murder." 35 At the conclusion of the outline his Honour asked both counsel whether they had any objection to what had been said in the outline; and both counsel replied in the negative. 36 Shortly thereafter the defence address was presented. It invited either an acquittal on the charge of murder or "an alternative verdict". The basic stance of the defence could not have been put more clearly or more succinctly than was done in this submission, which was made very early in the address: "They have to prove beyond reasonable doubt that this accused on this early morning shot the deceased with intent to kill him." 37 The topic of murder by reckless indifference to human life was the subject of both written and oral directions. The written directions were: "An act is done with reckless indifference to human life if the accused foresaw or realised that his act would probably cause the death of the deceased but he continued with that act regardless of the risk of death." [original emphasis] 38 Of the oral directions it suffices to refer to the following directions, the first passage being taken from page 23 of the summing-up and the second passage being taken from page 48 of the summing-up: "Again you are concerned with the state of mind that the accused had at the time he committed the act causing death. Again it is for you to determine what is the act causing death. For example, as I said, if you found that while the deceased was approaching, the accused deliberately pulled out a loaded gun foreseeing that further violence by the deceased would occur and that in such a situation the gun would probably discharge causing the death of the deceased, then subject to self-defence and provocation, the accused would be guilty of murder even though he never intended to cause the deceased's death and even though when the gun discharged he was not intending to fire it. You should see then how important it is to determine what the act of the accused causing the death is, whether that act was deliberate and what was the state of mind of the accused at that time." "What I was trying to stress to you was the importance of determining in all of the circumstances what was the act which caused the death of the deceased and as I tried to indicate to you it is not necessarily the pulling of the trigger because as you look at it you might find in relation to all of the acts taken by the accused in relation to that gun, that is the deliberate acts that the act of the accused which caused the death is not limited to just pulling the trigger. And if you found that the accused presented the gun, as I use that term, with intention of using it to kill the deceased or inflict serious injury upon him or indifferent to whether or not the gun went off and would probably kill the deceased then you could find that that was the act causing death and that the accused was guilty of murder even though you may be left with a doubt as to whether the shot which actually killed the deceased went through his heart as a result of a reflex action." 39 There was at trial no application for re-directions. 40 The appellant submits that murder by reckless indifference ought not to have been left at all. Ground 2 in the conviction appeal raises in terms that proposition. In my opinion it is unnecessary to travel, in search of a correct answer, beyond the following passage in the judgment of Barwick CJ in La Fontaine v The Queen [1976] 136 CLR 62 at 70: "A defence that the deliberate discharge of a firearm ………….. [in the given circumstances of that case of which one was the very close proximity of the victim to the shooter] ………… albeit not aimed at the deceased was effected only with the intention to scare or frighten courts a direction as to reckless indifference to the consequences of the maturity of a risk of which at least the likelihood is foreseen." 41 There was, in my opinion, abundant evidence available to the jury from which the jury could reasonably find beyond reasonable doubt that the appellant had fired in quick succession three pistol shots, one of them fatal, in the direction of the victim. The appellant, when his own evidence is looked at fairly, did not ever suggest that he had not in fact actually fired the shots. His case was that the shots had been fired involuntarily because of a reaction that he could only describe, insofar as he admitted to any real recollection of the relevant details, as having been a "flinching" movement which caused the firearm to discharge; and that he had never intended to kill, or even seriously to wound, the victim. He made no case of some latent defect in the firearm. He did not dispute that the victim had been very close to him at the time when he produced, presented and fired the firearm. His consistent case was that his sole intent had been to frighten the victim. 42 In my opinion such a concatenation of facts and circumstances can be said fairly to have courted a reckless indifference direction. 43 I would not uphold Ground 2 of the conviction appeal. 44 As to the directions in fact given upon the topic of murder by reckless indifference, I see no error in them. 45 It is submitted for the appellant that the earlier of the two passages previously quoted entailed a misdirection in that there was no evidence to support a proposition that the "pulling out" of the firearm with foresight of its unintentional discharge was an available basis for a finding of murder by reckless indifference. 46 I do not agree: first, because even if there were the suggested error at page 22 of the summing-up, - and I do not see it, - then it was amply corrected by the later directions at page 48 of the summing-up, directions which both counsel expressly accepted as adequate and correct; and secondly, because the evidence as I have summarised it in paragraph 3 was in my opinion ample to support a finding of a deliberate act causing death in fact; and being an act done in circumstances amounting to reckless indifference in the requisite legal sense. · Self-defence and Excessive Self-defence 47 The complaint now made by the appellant about the directions given on this particular topic is, essentially, a complaint that the directions did not sufficiently reinforce earlier directions about murder by reckless indifference. The directions ought to have told the jury in a particular way, so the submission runs, that if the jury found reckless indifference manifested, not by the pulling in three quickly successive actions of the trigger, but by the antecedent production and brandishing of the firearm, then it was that antecedent act of production and brandishing to which, in the most carefully particular sense, the self-defence directions of law had to be applied. 48 The trial Judge, conformably with the consistent method employed in the framing of the summing-up, gave the jury careful written instructions. It was not submitted at trial, and I do not understand it to be submitted to this Court, that any part of those directions was wrong in law. 49 His Honour, with a like conformity, spoke to the bare written directions. It is unnecessary to quote at length from the oral directions. The point to be made about them, - and it is a point which answers, in my opinion, the appellant's present submissions, - is that from first to last the directions make plain that the practical application of the directions by the jury must be related, not to some hypothetical death-causing act, but to some particular such act or acts that the jury would necessarily have already found to have been demonstrated in fact by the whole of the relevant evidence. 50 I see no error in this approach. No submission to the contrary was made at trial. 51 For the whole of the foregoing reasons I would not uphold Ground 1 of the conviction appeal.

Conviction Appeal : Ground 3 52 The Ground is: "The trial Judge erred in his directions on provocation." 53 There were extensive directions both written and oral. Two complaints are made about them: first, that they "elaborated the requirements of loss of self-control in provocation to a standard substantially higher than that required by section 23 of the Crimes Act"; and secondly, that there was repeated use of the word "would", when the correct usage would have been "could"; attempts to correct that error being themselves erroneous. 54 The gravamen of the first complaint is that the directions referred repeatedly, as they certainly did, to a proposition that implicit in the legal concept of mitigating provocation was the notion of a loss of reason. It is submitted that the only requirement is that of a loss of self-control. 55 In my opinion the answer to the complaint is that for many years appellate Courts of the highest authority have employed the language of loss of reason in the sense of a temporary suspension of the capacity for detached rational analysis and judgment. The judgments in the High Court in Parker v The Queen [1963] 111 CLR 610, and the subsequent advising of the Privy Council, reported at 111 CLR 665, provide sufficient examples. 56 In the High Court, Menzies J quoted with approval from the judgment of Coleridge J in Reg v Kirkham (1837) 173 ER 422 a reference to a provocative act, the response to which "was done in a moment of overpowering passion, which prevented the exercise of reason": 111 CLR, 642; while Windeyer J quoted with approval a well-known reference in East's Pleas of the Crown to a provocation such as might "in human frailty heat the blood to a proportionable degree of resentment and keep it boiling to the moment of the fact: so that the party may rather be considered as having acted under a temporary suspension of reason than from any deliberate malicious motive": 111 CLR, 652. Note also Windeyer J's citation with approval of the statement of Lord Goddard in Reg v Duffy [1949] 1 All ER 932 about "a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not master of his mind"; and Windeyer J's own description of "an uncontrolled, unreasoning and impulsive act": 111 CLR, 652, 653. 57 The advising of the Privy Council described "(s)omething which is done 'suddenly' and 'in heat of passion' caused by provocation ……… (that) ……. is, as it were, something done automatically or impulsively and at a time when there is temporary suspension of reason: an act so done is not controlled or planned or preconceived or deliberate": 111 CLR, 680, 681 58 Having read and considered the directions given in the present case, I am satisfied that the trial Judge did not overstate the relevant legal concept and requirements. 59 As to the second complaint, it is convenient to begin the discussion of it by noting that there were handed to the jury at two separate times two separate sets of written instructions upon the topic of provocation. They were marked for identification 6 and 8. MFI 6 uses consistently the word "could"; and in one instance the expression "could possibly", (original emphasis). MFI 8 contains these references: "a reasonable possibility that the conduct of the deceased so affected the accused …………… "; "………a reasonable possibility that the accused acted under provocation ………."; "…………the possible effect of the provocation."; "………….how a sober person of the accused's age and sex might possibly have reacted ………….", (original emphasis); "……….. no possibility that the ordinary sober person in the position of the accused and provoked as he was could have so far lost his self-control …….". 60 [It should be noted that in the last of those examples, MFI 8 originally read "would" instead of "could". Trial counsel for the appellant was content with the document in that form. The Crown Prosecutor suggested that the correct word was "could"; his Honour agreed, and thereupon struck out the letter "w" and wrote in the letter "c", so that the jurors were on quite specific notice that "would" was incorrect, and that "could" was correct.] 61 It is true that at various times during the course of oral directions his Honour said "would" instead of "could"; although it is equally true that his Honour also used such expressions as "could possibly" or "might possibly". 62 MFI 8 was given to the jury as part of supplementary directions, both oral and written, given in response to a jury question. Trial counsel for the appellant specifically raised no objection to its contents. 63 I am of the opinion that the contents of MFI 8 in particular, but even more so those contents when read in conjunction with the contents of MFI 6, correctly instructed the jury; and sufficiently corrected the undoubtedly erroneous occasional oral use of "would" instead of "could". 64 I would not uphold Ground 3 of the conviction appeal.

65 For the whole of the foregoing reasons, I would dismiss the appeal against conviction.

Sentence Application 66 The Grounds as formally notified are:

(b) His Honour erred in his determination of facts for the purpose of sentencing;

(c) His Honour erred in concluding that there was nothing in the subjective circumstances of the appellant that could mitigate the offence. 67 The Grounds can be fairly dealt with together. 68 His Honour's first task in the sentencing process was to assess the objective criminality of the shooting. His Honour was entitled to make his own findings of fact in that connection, provided that any such finding adverse to the appellant was reached beyond reasonable doubt; and provided further that any such finding was consistent with the verdict of the jury. 69 The verdict of the jury necessarily entailed that the jury was satisfied beyond reasonable doubt that the appellant had by his voluntary act caused the death of the victim; that the appellant had not acted in reasonable self-defence; and that the appellant's act was not mitigated by provocation. 70 His Honour made a careful survey of the objective facts and circumstances. He concluded: "In my view, the evidence indicates that, rather than acting in self-defence, the offender lured the deceased to the spot where he waited in ambush to shoot him. I am satisfied beyond reasonable doubt that the offender deliberately fired three shots into the body of the deceased. In those circumstances and notwithstanding his intoxicated state, I have no doubt that he fired the gun with the intention of killing the deceased. It is thus a serious case of premeditated murder." 71 His Honour accepted "that the deceased was the aggressor on this particular night and used his height and weight advantage to intimidate the offender and his companions". This was, in my view, a finding apt to mitigate the objective criminality of the shooting; but the extent of any such mitigation could not be very great in the light of the overall findings of his Honour as to objective criminality. 72 His Honour expressed the view, with which I respectfully agree, that a proper sentence "must denounce the use of violence in public, particularly where it involves a loaded firearm, and it must attempt to deter other persons who feel offended by the conduct of others from taking action of a similar nature in retribution or revenge". 73 When his Honour came to assess the appellant's subjective case, he began his survey of that case by saying that "there is nothing in the subjective circumstances of the offender that can mitigate the offence". I read that statement literally: that is to say, as conveying that the relevant subjective considerations could not mitigate the objective gravity of the offence, as distinct from their potential to mitigate what would have been in their absence a proper sentence. 74 His Honour's survey of the appellant's relevant subjective characteristics occupies paragraphs 29, 30 and 31 of the remarks on sentence. It is not necessary to repeat them. They were indicative of, generally speaking, "an honest and worthwhile life"; reasonable domestic stability; familial support; and at least a measure of genuine remorse. 75 His Honour was not persuaded to find special circumstances, for the reasons expressed in paragraph 33 of the remarks on sentence, with which reasons I respectfully agree. 76 Having read and considered the remarks on sentence, I am unpersuaded that any overt error has been demonstrated. It follows that this Court cannot properly disturb the sentence unless the Court is persuaded that there has been covert error in the sentencing process. That entails a consideration of the question whether the sentence as it stands is so plainly out of kilter with properly comparable sentences as to warrant a conclusion that some more lenient sentence is warranted in law. 77 In considering that question I have kept in mind the well-settled and very important principle that this Court should never interfere lightly with a sentence because of a perception of covert error. The Court does not have in the present case the assistance of the usual Judicial Commission statistics, albeit that their practical utility is indicative rather than prescriptive. 78 I have to say, however, that the more I have thought about the matter the more insistently have I felt a nagging concern that the sentence as it stands does not allow adequately for the finding, with which I respectfully agree, that the victim was "the aggressor on this particular night and used his height and weight advantage to intimidate the offender and his companions". 79 That consideration cannot possibly excuse the shooting; or simply explain away the undeniable gravity of the shooting. I cannot help but feel, however, that a head sentence of 24 years passed upon a comparatively young man of some 33 or 34 years of age does not manifest any real mitigation of the relevant objective criminality, when some prudently restrained such mitigation would be just by reason of the findings as to aggression and intimidation on the part of the victim. 80 I have come, therefore and not without real hesitation, to the conclusion that the substitution by this Court of a head sentence of 20 years and an accompanying non-parole period of 15 years is warranted in law.

[1] that the appeal against conviction be dismissed;

[2] that leave be granted to appeal against sentence;

[3] that the appeal against sentence be allowed; that the sentence imposed at first instance be quashed; and that the appellant be sentenced to imprisonment for 20 years to commence on 6 April 2001 with a non-parole period of 15 years to commence on 6 April 2001 and to expire on 5 April 2016, upon which date the appellant shall be eligible to be released to parole. 82 KIRBY J: I have had the advantage of reading the judgment of Sully J in draft. I agree with the orders proposed, generally for the reasons provided by his Honour. I should, however, comment upon Ground 1. 83 In respect of the elements of murder, and leaving aside self defence and provocation, the facts gave rise to three issues: · First, what was the cause of death? · Secondly, whatever the cause, was it the act of the accused? It was not relevantly the act of the accused unless it was deliberate. · Thirdly, if it was the act of the accused, was it carried out with an intent to kill, or cause grievous bodily harm, or with reckless indifference? 84 On the Crown case, there really was no issue of causation, voluntariness or intention. An eyewitness, the bouncer at the hotel, described the way in which the appellant beckoned the deceased to a spot where he waited in ambush to shoot him. He fired three shots at close range one after another. All caused grievous injury. One was fatal. The eyewitness account was, to some extent, corroborated by other witnesses. The appellant's brother was also called by the Crown. He said that the appellant was "irate" immediately after the incident. The appellant said, referring to the victim: "Fuck him. He shouldn't have fucked (with) me" (T144). On any view it was a strong Crown case. 85 Mr Katarzynski gave evidence. He provided an alternative version. He said that as he returned to the hotel he was confronted by the deceased. He drew from his waist band a revolver, which he knew to be loaded. At the same time he told the deceased to "fuck off". He was holding the weapon at about waist height, pointed across his body towards the ground. Suddenly the deceased lunged at him with his arms outstretched. The appellant said that he moved backwards. At the same time "he flinched causing the gun to discharge". He said to the police, and repeated to the jury, that he did not mean to shoot the weapon and certainly did not intend to injure the deceased. 86 That version involved the difficulty, amongst others, that his explanation, at best, raised issues in respect of the first shot. When cross examined he said this: (T265) "Q. The first shot went off as a result of you flinching? A. Yeah. Q. And the second shot, was that the result of you flinching? A. I don't know. Q. How about the third shot, was that the result of you flinching? A. I don't recall the third shot. Q. But there was a third shot, you accept that? A. Yeah. Q. But you don't remember now whether that was as a result of flinching? A. I don't know, I don't know." 87 Although the Crown could not say which, in the sequence of shots, was the fatal shot, the shots were, as mentioned, fired in quick succession. One would infer that each required pressure on the trigger of the revolver. 88 The submissions that have been made in respect of the directions given in the course of the summing up are really all directed at the first shot, said to be the consequence of the appellant flinching. On that issue, his Honour gave the jury the following direction: (SU 19) "If at the end of the day you find there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary, such as a reflex action, then the accused is not guilty of murder." 89 That direction drew the jury's attention to the fundamental issue which it needed to consider on the issue of voluntariness. In the context of three shots in rapid succession, the directions which are now suggested, depend upon a refinement of the act causing death, which may be thought artificial. In Ryan v The Queen (supra) referred to by Sully J (supra para 30), Windeyer J identified the submission which the Court was then considering in these words: (at 243) "However, before us the case was presented in a different way. What was urged is that the defence was really that the applicant did not voluntarily press the trigger: and it is said that this aspect was not presented to the jury. The event, it is now said, should be analysed as follows: The prisoner had the firearm pointing towards the man; his finger was on the trigger; the man suddenly moved; the prisoner was startled; he involuntarily pressed the trigger. I have no doubt that the words 'accidental', 'accident', 'unintentional', 'unforeseen' and others by which apparently the defence to the charge of murder was variously expressed by counsel to the jury, and which were used by the learned judge when putting the defence to them, were intended to cover, and would be taken by the jury as covering, any view of the facts which might exculpate the accused from a charge of murder and induce them to find a verdict of manslaughter." 90 Dealing with that submission, Windeyer J concluded his analysis as follows: (at 245/6) "Such phrases as 'reflex action' and 'automatic reaction' can, if used imprecisely and unscientifically, be, like 'blackout', mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act. The latent time is no doubt barely appreciable, and what was done might not have been done had the actor had time to think. But is an act to be called involuntary merely because the mind worked quickly and impulsively? I have misgivings in using any language descriptive of psychological processes and phenomena, especially as I doubt whether all those skilled in this field employ their descriptive terms uniformly. Guided however by what has been said in other cases and by writers on criminal law whose works I have read, and especially the judgments in the House of Lords in Bratty v Attorney-General for Northern Ireland ([1963] AC 386), I have come to the conclusion that if the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that his action was involuntary so as to make the homicide guiltless." 91 Here, Senior Counsel for the accused at the trial neither objected to the terms of the summing up, nor sought elaboration to deal with matters now said to be a problem. Even if, being now removed from the atmosphere of the trial, there were matters that might usefully have been put by way of elaboration or clarification along the lines now submitted, I would apply Rule 4. To my mind, there was no possible miscarriage of justice. **********

15/03/2005 - The formatting of Paragraphs were amended as page format was incorrect - Paragraph(s) All 15/03/2005 - Further formatting problems, right margin adjusted to bring text in line. - Paragraph(s) All 21/03/2005 - Formatting issues updated - Paragraph(s) 0

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.