REGINA v. SANCAR [1999] NSWCCA 284

No. 60088 of 1998 SPIGELMAN, CJ. GREG JAMES, J. SMART, AJ.

1 SPIGELMAN, CJ: I agree with the judgment of Greg James J. 2 GREG JAMES, J: The appellant was convicted following a verdict of guilty after a jury trial in the Supreme Court on one count of murder. He now appeals or seeks leave to appeal in respect of that conviction.

Leave to appeal 3 As to the principal grounds argued, no application for re-directions nor objection to the relevant portion of the summing up was raised at trial. The only relevant submission was deprived of its force by a critical factual concession which caused or influenced the determination of the relevant application adversely to the appellant resulting in a complaint of an omission to direct the jury on the matter. It might therefore have been thought in respect of both grounds that leave under Rule 4 was necessary. Notwithstanding, without objection, full argument has been heard on both grounds which were asserted to involve the withdrawal from the jury of the necessity to find established an essential factual element of the crime charged and the withdrawal of a possible alternative verdict because of asserted errors of the trial judge and counsel. They raise a common, important question concerning the appropriate treatment of the question of intent. 4 It would seem that leave is necessary, but as the matter raised is clearly of substance, I would propose that whatever the fate of the appeal, leave be granted, since an accused, even represented by experienced counsel, is not necessarily denied relief on appeal because of an error made in the course of a trial, at least if more is involved than a tactical decision which turns out to have been misjudged. Examples are given in cases referred to in the majority judgment in Regina v. Wilson (1997) QCA 244. It is also clear that a trial judge is required to be astute to leave relevant matters of defence raised on the evidence to the jury, notwithstanding trial counsel's tactical course: Pemble v. The Queen (1971) 124 CLR 107.

Nature of the case 5 To set the context to the submissions made on the appeal, I take the following summary of the case from the remarks of the trial judge on sentence:- "On 23 September 1997, following a trial which occupied some three weeks, the jury found the prisoner Yuksel Sancar, guilty of the murder of Charles Richard Wicks on 10 May 1994, at a time when both the prisoner and the deceased were in custody at the Junee Correctional Centre. The prisoner is for sentence today. The facts which were established on the criminal standard relating to the murder of the deceased include the following. On the afternoon of 10 May 1994, the prisoner and his friend and fellow prisoner Mustafa Pehlivan were walking along the prison walkway, which connects the Prison Control Centre to 'C' Block, passing in turn the doors which give access to firstly the Administration Office, secondly the Medical Centre, thirdly the Education Centre, fourthly the gymnasium and finally 'C' Block. A confrontation occurred between the prisoner and Pehlivan on the one hand, and the deceased and his friend and fellow prisoner Timothy Orr, on the other. There had been bad blood between the prisoner and Orr, generated by the involvement of both of them in the use of prohibited drugs within the Correctional Centre. This animosity had resulted in certain taunting of the prisoner by Orr on the day prior to the murder, and the breaking of the glass in the window of the prisoner's cell. There was a substantial body of evidence, which I accept, establishing that at the time of the confrontation between the four men, the prisoner was armed with a half pair of scissors, shaped and sharpened into a dagger, and that the deceased was unarmed. In a prior trial on this charge, in which the jury were unable to agree, the accused gave evidence. This evidence was relied upon by the Crown in the later trial and the transcript of the prisoner's evidence was read to the jury. In this evidence the prisoner stated that he had been using heroin whilst in custody in the Junee Correctional Centre for about two months prior to 10 May 1994 and that there was heroin 'in his system' at the time he stabbed the deceased. However, it was not claimed by the prisoner that at the time of committing the offence his mental functioning was impaired, or that he did not know what he was doing. In the prisoner's evidence he said that the confrontation with the deceased and Timothy Orr stemmed from demands made upon him by Orr for heroin which he refused to comply with, telling Orr that the drug in question had already been sold to someone else. The murder weapon, Exhibit C, had been fashioned from a half pair of scissors by the prisoner using the grinder located in the Industry Section of the Junee Correctional Centre. The confrontation between the four men took place in the walkway outside the Education Section. A fist fight developed between Orr and Pehlivan and between the prisoner and the deceased. The latter two exchanged blows prior to the prisoner producing his knife, Exhibit C, and stabbing the deceased twice in the chest. The first stab wound struck the deceased near the sternum and penetrated the pericardium and the ascending aorta. The second stab wound, which entered the chest cavity on the right side, penetrated the lung, diaphragm and liver. Either blow was potentially fatal. The first blow was not amenable to treatment and the second blow, considered alone, would have caused death in the absence of treatment. The deceased after being twice stabbed, staggered some distance along the walkway and collapsed outside the Medical Centre. Efforts were made to assist him, but he died within minutes. The prisoner said that he discarded the murder weapon in the Education Centre. It was in fact recovered from the floor of that section by Correctional Centre staff soon after the stabbing of the deceased. In his evidence, the prisoner was asked in cross-examination the following questions and gave the following answers:- 'Q. You knew it was likely to kill him, you stab a man in the chest? A. I stabbed him in the side. Q. You stabbed him in the side and then to the front? A. That's right. Q. You knew that it was likely to kill him, didn't you? A. No, I did not know it would kill him. Q. You knew it would cause serious bodily harm to him? A. Yes, I did. Q. And you did it nevertheless? A. That's right. Q. And you didn't really care what injuries the stabbing caused him, did you? A. No, I never. Q. Sorry? A. No, I never. Q. You thought that this act could cause his death but you were prepared to take the chance? A. With my life pending, yes.'" 6 That last answer in particular, and when taken in conjunction with the rest of the evidence of the accused read to the jury and evidence from other gaol inmates of the surrounding circumstances, illustrates why defence counsel conducted this trial on the narrow basis that the appellant's conduct was justified in that he was acting in self-defence.

The directions 7 It was in response to the issues so raised that his Honour directed the jury:- "Members of the jury, it will not be necessary for you to write this down - I will hand you a document shortly - the crime of murder is committed where the act of the accused which caused the death of the deceased was done by him with an intention to kill or inflict grievous bodily harm. 'Grievous bodily harm' means really serious bodily injury. Those are what might be called the basic ingredients of the crime of murder. In addition to the basic elements of murder which I have outlined to you, the Crown must also prove to your satisfaction beyond reasonable doubt that the accused was not acting in self-defence. In this case there is no issue that the deceased, Charles Wicks, died. His body was identified and there is no doubt in that regard, nor is there any issue, that the deceased died as a result of the stab wound inflicted upon him by the accused. The issue in this case is whether or not the accused was acting in self-defence when he inflicted the stab wounds upon the deceased and in this regard the onus rests upon the Crown to prove beyond reasonable doubt that the accused was not acting in self-defence. There is also no issue that in stabbing the deceased the accused intended at least to inflict grievous bodily harm. He said as much in the evidence that he gave on oath, which was read to you, and to which counsel have referred and to which I shall shortly return. However, the accused says that in the circumstances then prevailing, he was acting in self-defence and I reiterate; this is not something that the accused must prove to you. The onus rests on the Crown to prove to you beyond reasonable doubt that he was not acting in self-defence. " (emphasis added) 8 It is apparent that the emphasised portions of those directions represented his Honour's appreciation of what was and what was not in factual contest. It is the references to "no issue" of intent "at least to inflict grievous bodily harm" and "he said as much" which are relied on for one of the submissions made here that the trial miscarried. 9 His Honour provided the jury with written directions which included a direction that they had to be satisfied beyond reasonable doubt that the accused caused the deceased's death by stabbing and of his intent to kill or inflict grievous bodily harm when stabbing as well as the necessity for the Crown to rebut self-defence. In that sense the issue of intent was formally left to the jury, albeit in the context of his Honour's observations that as to intent to cause grievous bodily harm there was "no issue" and that the accused had "said as much". 10 In the written directions, his Honour included a written instruction to the jury reiterating his oral instruction that it was necessary for a guilty verdict for the jury to be satisfied that the act of the accused causing the death was done at least with an intent to inflict grievous bodily harm and not in self-defence. 11 No complaint was made at trial about his Honour's directions in this respect. This was understandable since in the way in which the defence went forward, it was not necessary to discriminate between the intentional states which might otherwise have gone to support the charge of murder. It was simply the defence case that the appellant acted in self-defence confronted with a life threatening emergency. The defence case was further put as follows, without objection:- "What the defence here says is that it is upon the Crown to establish beyond reasonable doubt the guilt of the accused and that is so, particularly with respect in this case to the central issue of self-defence. It is for the Crown to prove that the accused was not acting in self-defence and the defence says that on the evidence in this case, the unsatisfactory nature of so much of it, and the quality of the witnesses called, in particular the witnesses who were prisoners and who had something to gain by assistance to authorities, that you would not be satisfied that the Crown had discharged the onus which lies upon it to satisfy you beyond reasonable doubt of the guilt of the accused and that you would, therefore, find the accused not guilty." 12 His Honour expressed the Crown case thus:- "The Crown says that making all allowances for the circumstances in which the accused found himself, there was no reasonable ground for believing that it was necessary to kill the deceased in self-defence. If that is so, then in law it could not be said the accused was acting in self-defence." "If the Crown has satisfied you that the accused was not acting in self-defence, and if the Crown has also satisfied you that it was the deliberate act of the accused which caused the death of the deceased, and it was done with intent to kill or inflict really serious bodily injury, then you should convict the accused of the charge of murder by finding him guilty. And that is the end of the case. You do not go any further." 13 As to these directions, the only request for re-direction was that his Honour add to what he had said in the first passage concerning the believed necessity to kill, a specific reference to a believed necessity to cause grievous bodily harm. This application and these passages do not support the argument that on a fair reading of the whole summing up, the issue of intent was foreclosed by the trial judge's observation or counsel's concession. 14 Relevantly, earlier in the summing up, his Honour had directed the jury impeccably as to their independent fact finding role and the necessity to disregard any view he might express on the facts. The jury were further directed as to their responsibility to be satisfied beyond reasonable doubt of the elements of the offence, including of the necessary intent.

The evidence 15 Later in his summing up, his Honour read to the jury the whole of the evidence of the appellant given at the prior trial to which he had referred in the summary of the case I have quoted and which included the passage of evidence set out earlier. As a reading of the passage makes clear, the appellant does not expressly admit intent to cause grievous bodily harm although the inference that he acted with such intent would appear, in the absence of contest or explanation, to be inescapable. 16 There was substantial evidence elicited either by way of cross-examination or in chief to indicate circumstances which would support the proposition that the appellant was in fear of attack and might reasonably have believed that the deceased was in possession of a weapon. 17 It was the appellant's account that he was aware that he was likely to be attacked and that when a confrontation with Orr and the deceased occurred, he saw that the deceased had a knife with a noticeable black butt. He had seen that knife sticking out of the deceased's pant's waist band. When the deceased reached for the knife, the appellant said that he seized him by the wrist and stabbed the deceased with quite some force on two occasions. That evidence is entirely inconsistent with a mere threat or a warding off of an attack unaccompanied by an intent to cause serious harm. That evidence does not deny the effect of the other evidence in the case which went to establish at least an intent to cause grievous bodily harm. 18 There was no issue that the deceased died as a result of two stab wounds to the chest although the appellant asserted that one wound was to the side of the deceased. 19 The evidence of Orr disclosed his witnessing the appellant, after he had been punched, with his head down delivering blows in the manner of upper cuts or "rips to go to the stomach" to the body of the deceased. It is this evidence which it is submitted on this appeal would support the hypothesis that the appellant struck the deceased without intent to kill or to cause grievous bodily harm. It is this evidence which gave rise to the application to leave manslaughter as an alternative verdict to which I will later refer. On my reading of it, this evidence does not support the lack of intent contended for and was, in any event, strongly challenged by the appellant in his own account referred to earlier and in cross-examination. 20 Other witnesses had observed the confrontation and gave evidence of having seen the blows struck by the appellant to the deceased, including Mr. Henderson who saw the deceased strike a couple of glancing blows to the appellant who then struck at least a couple of hooked sort of punches to the upper right hand side of the body of the deceased. These were said to have been struck in a round armed fashion onto the right side of the body of the deceased, whereupon it was noted that the deceased was bleeding and there was blood on his upper right hand side. Mr. Henderson, however, saw no weapons in the hands of any of the parties. 21 The evidence of prisoner Evans was to similar effect, except that he considered he had seen what looked to be a knife used by the appellant in the blows to the deceased.

The evidentiary issues for the jury 22 His Honour summarised this evidence to the jury, and put the Crown case again:- "Well, members of the jury, the Crown submits to you that you would be satisfied beyond reasonable doubt that the accused stabbed Charles Wicks twice in the chest, bringing about his death as admitted by him, and that he did so in a situation in which he was not acting in self-defence and in which he acted in a manner entirely disproportionate to any threat that was posed to him by Mr. Wicks; that there was no issue that the accused used the half scissors fashioned into a knife, Exhibit C, and that his intent was at least to inflict grievous bodily harm." 23 At the conclusion of his Honour's discussion of the Crown case, he dealt with the factual issue between the parties in terms that the jury would be concerned to consider whether what had occurred was or was not in self-defence. His Honour then turned to the defence case and it is notable that the whole of that case is put on the basis that the appellant knew or believed that the deceased was armed and intending to attack him. It was in that context, the defence case that the jury would not be satisfied beyond reasonable doubt of the absence of self-defence. It was on those bases that the respective cases were left and in due course that the jury were asked to retire following his Honour having directed them as to the manner in which they might return their verdicts and that their verdict had to be unanimous.

Application for the alternative verdict 24 Nonetheless, at a very late stage of the trial, there was, during the summing up, an application to leave to the jury a possible verdict of manslaughter on the bases of unlawful and dangerous act or provocation (the latter matter is not asserted to be relevant on this appeal). Such a submission contemplated that the jury would not be satisfied of the requisite intent for murder. The application was opposed by the Crown. His Honour noted (at p.3):- "The submission is made by the defence that it is open to the jury to find that the accused, in acting in the manner described, did not have the necessary intention to kill the deceased or to cause him grievous bodily harm." 25 In that judgment his Honour records:- "Counsel for the defence concedes, and in my view quite rightly so, that for the jury to import to the accused an absence of intention to inflict grievous bodily harm, they must necessary disbelieve the evidence given by the accused and attribute to him a state of mind different from that which he avows." 26 There was, here, no question of the manslaughter verdict arising because of some unexpected matter at the trial. It was at the least incongruous to see defence counsel submitting his client was liable to be convicted of an offence, that the Crown insisted it had not charged. If the defence had considered it to be appropriate that the alternative verdict be considered by the jury, it should have been raised well prior. Of course, if it had been contemplated that manslaughter was a factually available alternative verdict, it would have been appropriate that it be opened to the jury as such by the Crown at the outset of the trial to enable the jury to be aware of the relevance to it of the evidence as it was given. 27 His Honour saw no justification in the light of his view of the evidence for leaving the alternate verdict of manslaughter by reason of unlawful and dangerous act to the jury and declined to do so. 28 The jury being unable to complete its deliberations that day, the matter stood adjourned to the following day when a note was received in which the jury sought clarification of the matters of self-defence and the instruction as to the standard of proof. It thus seems perfectly clear that the jury were concerned with the issues in the way in which the trial judge and counsel had dealt with them. His Honour gave the jury appropriate directions, whereupon they retired again.

Failure to agree 29 During the mid-afternoon, at 3.15 pm, a note was received from the jury, the text of which was:- "The members of the jury have all confirmed that their decisions are final and that we cannot make a unanimous decision." 30 His Honour indicated that in those circumstances he should give a direction in accordance with that referred to by the High Court of Australia in Black v. The Queen (1993) 179 CLR 44. The only objection raised by defence counsel was as to whether such a direction might be futile. His Honour then gave such a direction, to the substance of which no present objection relates, and a little under two hours later the jury returned with a verdict of guilty.

The grounds of appeal 31 The grounds of appeal asserted here include that the directions given by the learned trial judge on the question of intent to inflict grievous bodily harm were erroneous and that the trial judge erred in determining that the alternative verdict of guilty of manslaughter by reason of unlawful and dangerous act should not be left to the jury. I couple these two grounds together as the appellant's counsel did so in his submissions. I intend to deal with them in this order, since, if the first ground is not made out, the jury can be taken to have properly found the necessary intent and the question of an alternative verdict would have no practical relevance. 32 Further it is asserted, that his Honour erred in giving the jury the direction referred to in Black (supra) in the circumstances. 33 The fourth ground contends "the verdict of guilty of murder is unsafe and unsatisfactory". It is sought to be amended so as to contend that there has been a miscarriage of justice by reason of the manner in which the trial proceedings were conducted to reflect s.6(1) Criminal Appeal Act 1912 (NSW) in the light of the decision in the High Court in Fleming v. The Queen (1998) 158 ALR 379. As I apprehend this ground, it is intended merely to encompass the matters raised under the earlier grounds. It would only be in the event that there is any substance in the other grounds that it would be necessary to consider what course should be taken in this regard.

Direction as to jury agreement 34 It is convenient to deal firstly with the ground concerning the direction as to jury agreement. It is conceded that the occasion for the giving of such direction is very much a matter for the discretionary judgment of the presiding judge. It is asserted that having regard to the length of the trial proceedings and the very short time during which the jury had been able to consider the reiteration of the directions on self-defence and the standard of proof, notwithstanding that such matters had been clearly explained to them earlier in the summing up, as there was a substantial amount of written material and the evidence in chief of the appellant and his cross-examination to consider, the jury should not then have been given the direction. I am unable to accept the submission. I see no vice in what his Honour did nor any pressure upon the jury or upon individual jurors to join in a verdict with which they did not genuinely agree. I see no reason to distinguish the present situation from that noted in Regina v. Pantoja (CCA, unreported 5 November 1998) where, after deliberating from some time, the jury sent to the trial judge a note in the following terms (at p.33):- "We the jury regret to inform the court that after extensive deliberations we have been unable to reach a verdict on either charge. All avenues of deliberation have been exhausted and the jury is unanimous in its belief that further deliberation is futile." 35 In that case the trial judge, in reliance upon what had been said in Black (supra), gave to the jury directions in conformity with the model directions in that case and the course his Honour took was upheld on appeal in this court. On that occasion this court noted:- "The course adopted by his Honour derives some support from the decision of this court in Regina v. Tangye (1997) 92 A. Crim. R. 545. In Tangye the jury had sent a note:- 'Unable to reach a decision on the first charge. Where do we go from here?'" 36 The trial judge in Regina v. Tangye (1997) 92 A. Crim. R. 545 examined the foreman of the jury pursuant to s.56 of the Jury Act and then gave a Black direction. Hunt, CJ. at CL., who gave the leading judgment in the Court of Criminal Appeal in Tangye (supra), said:- "There is no doubt that the judge should have given a Black direction and waited to see whether it had any effect before examining the foreman on oath pursuant to s.56 of the Jury Act." 37 In my view there is no substance in this ground of appeal and it should be rejected.

Intent and the directions 38 I turn to the grounds concerning the directing of the jury as to the issue of intent to inflict grievous bodily harm and the asserted error in failing to leave manslaughter to the jury. In the passage of the summing up set out above, his Honour refers to there being "no issue" that in stabbing the deceased the accused intended at least to inflict grievous bodily harm and that the accused had "said as much" in evidence. The first of those observations of his Honour's was clearly based, not only on that portion of the appellant's evidence at the prior trial I have set out above which was included in the more lengthy passage read by his Honour to the jury during the summing up, but also on the way in which the defence case was put at the trial. It was practically necessary for the defence to deal with the whole scenario set out by the appellant involving, as it did, his both restraining his victim from grabbing the knife from his waistband by holding his wrist and simultaneously stabbing him fatally twice. The passage dealing with advertence to the causing of grievous bodily harm and the lack of care for that consequence must be seen in its context of the asserted necessity for such an action.

His Honour's remarks 39 It is contended that in observing to the jury that there was "no issue" as to the relevant intent and that the appellant had "said as much", his Honour had expressed his own conclusion as to the effect of the appellant's evidence as to intent and that his Honour had inferred an actual intent from the admission of knowledge of a possible consequence. It was asserted that this interpretation of the evidence given by the appellant was such, notwithstanding the other directions, as to leave it open to the jury to convict the appellant of murder in the event that they were satisfied that the stabbing did not occur in self-defence without considering whether they were satisfied that at the time of the stabbing the appellant had formed an intent at least to cause grievous bodily harm to the deceased. It is put that although the evidence shows that the appellant had a knowledge of the likely consequences of stabbing, recognising that grievous bodily harm was at least a possible consequence of those actions, what his Honour said sought or tended to equate the specific intent necessary to be found by the jury with that mere recognition or knowledge. It is put that such is a serious misdirection of law eliding a finding of fact necessary for the jury to make and does not accord with the views of the High Court in Parker v. The Queen (1963) 111 CLR 610; and Hawkins v. The Queen (1994) 179 CLR 500 at 513 where the jury's role in finding an inferred intent is discussed. 40 If that is what the summing up did, I would accept that it was seriously in error: see the judgment of Hunt, CJ. at CL. in Regina v. McKnoulty (1995) 77 A. Crim. R. 333 at 345. However, that was a case in which the trial judge expressly directed the jury that even if they were not satisfied the appellant had the necessary specific intent, recklessness or a mere recognition that such harm was a probable consequence would suffice to establish the offence. That amounted to a direction that if the jury were not satisfied of the necessary element it would nevertheless be sufficient for them to be satisfied that the appellant foresaw that his actions would probably lead to grievous bodily harm in order to convict him of the offence charged. Such a direction clearly erred. Here, at most, the trial judge has given to the jury a correct statement of what was in contest coupled with his observation, unchallenged, as to the effect of the appellant's statement. That effect reflected the appellant's own admitted knowledge of the consequences of his act and the obvious and inevitable consequences of that act. It is not surprising his Honour's view of the evidence was unchallenged. Notwithstanding, the argument here proceeded on the basis that his Honour's remark reflected the legal error of reasoning already referred to such that it might have led the jury into accepting the issue as foreclosed or led them into making a similar error when considering the evidence of Mr. Orr and the relevant admissions or (at least implicitly) it is argued that his Honour 's statement illustrates a danger from which the jury should have been guarded by an appropriate direction.

Necessity for a specific direction on intent 41 It may be accepted and was conceded on behalf of the appellant, that foresight of consequences is a matter to be taken into account in determining whether or not a person intended those consequences: Regina v. Willmott (No. 2) (1985) 18 A. Crim. R. 42; Parker (supra). It has been clear for a long time in the law of New South Wales and in Australia that regard may be had to an act and its consequences as some evidence of whether or not an intention to cause those consequences existed, without heretically either equating foresight of consequences with intent or presuming it. The true position may be summarised thus, "… where a specific result is the obvious and inevitable consequence of a person's act which he has done deliberately, then that may be regarded as evidence of the actor's intent" (per Finlay, J., with whom Gleeson, CJ. and Campbell, J. agreed, reviewing that line of cases on inferring intent including DPP v. Smith (1961) AC 290; Regina v. Smythe (1957) 98 CLR 163; Regina v. Thomas (1960) 102 CLR 584; Regina v. Stapleton (1962) 86 CLR 358 which culminated in Regina v. Parker (supra); Regina v. Barreto (CCA, unreported 29 September 1993)). Where the consequence is obvious and inevitable and it is foreseen by the actor that the consequence is virtually certain, the inference it is intended is of such compelling force as not to require the circumstances be subjected to sophisticated analysis particularly where no factual issue is asserted to arise or no contrary explanation is given. Despite the able submission of the appellant's senior counsel, I consider the discussion in the United Kingdom in cases such as Regina v. Woolin (1999) 1 Cr. App. R. 8; in Canada in Regina v. Buzzanga & Durocher (1979) 49 CCC (2d) 369 and as expressed in the differing views of Mr. Mirfield and Professor Sir John Smith in 1999 Criminal Law Review 246-247 represents a level of debate of complexity entirely inappropriate to considering the real effect of what the trial judge said to the jury and what should have been said to the jury in this trial having regard to the instant evidence and issues. 42 Further, as to the implicitly asserted necessity to give a positive direction, I share the view expressed in various of the cases that usually it would be an error to expatiate upon the meaning of "intention" in a summing up. It may be that in an appropriate case, a direction such as that referred to in Regina v. Hancock [1986] 1 AC 455 might be called for but it could be expected such cases would be rare. For the reasons I have already stated, this, in my view, was not one of those cases. Thus, I consider this is not an appropriate case in which to examine the reasoning which gave rise to, or the appropriateness of, the guidelines referred to in Regina v. Hancock (supra). It may, in due course, be held in some appropriate case that the position in the United Kingdom and in Australia as to inferring intent from foresight of consequences is now the same and is as set out in Hancock (supra) by Lord Scarmon at 471:- "… the House made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily imply the existence of intention, although it may be a fact from which, when considered with all the other evidence, a jury may think it right to infer the necessary intent." 43 I do not see that the jury might have been misled by what his Honour said in the context of this trial, such that they might have been diverted from their proper function or that there was any risk they might not have properly appreciated the effect of what the appellant expressly said and the evidence of what he did. Nor do I consider any positive direction expatiating on intent should have been given. 44 The evidence was all one way. There simply was no evidence in the case, including that of Mr. Orr, of any unintended stabbing to set against the appellant's account and the evidence of his act. Unless the jury were satisfied beyond reasonable doubt that there was no basis for self-defence, ie., that the appellant's account was untrue, then the appellant had to be acquitted. Plainly the appellant, on his own evidence, asserted self-defence and intended to disable his opponent by stabbing him. That was his case. Such a case presented "no issue" on intent as the self-defence asserted accepted the necessity to cause the relevant degree of harm. That was what he admitted, ie., "he said as much". The consequence of the stabbing was obvious and inevitable and the appellant foresaw that consequence would occur. 45 This is not a novel case. There have been others in which, not inappropriately, trial judges have referred to the effect of evidence of intent. In Bartho v. Regina (1978) 19 ALR 418, a stabbing case in which the High Court considered a direction that a jury should decide between guilt and innocence, are to be found (at 421), obiter, observations on a direction having the effect of suggesting to a jury there was on the evidence no real factual basis for doubt as to intent to inflict grievous bodily harm although leaving to the jury the legal entitlement to find the facts. Gibbs, J. (as he then was) held that such a direction was unobjectionable in the particular circumstances. Indeed there was no criticism of that direction by any member of the court. Barretto (supra) was also such a case. 46 This is not a case in which the questions agitated in the High Court in The Queen v. Crabbe (1985) 156 CLR 464 concerning foresight of consequences and wilful blindness raise any matter for consideration, particularly not, since Crabbe (supra at 467-468) was a decision which turned on the traditional common law definition of malice aforethought which embraced a killing done with knowledge that the act causing death will probably cause grievous bodily harm, although accompanied by indifference as to whether that harm is caused or not or by a wish that it may not be caused.

Defence counsel's position 47 For the reasons I have already given, I am also unable to conclude that in the context of this case the acceptance by defence counsel that the stabbing was accompanied by an intent to cause really serious harm at least, was either tactically or factually wrong. Nothing that appears in Pemble v. The Queen (supra) or Regina v. Wilson (supra) and in particular in the judgment of Barwick, CJ. in Pemble (supra), causes me to consider that there might here be found any prospect of miscarriage as contemplated by s.6(1) of the Criminal Appeal Act 1912. 48 This is not such a case as the High Court had to consider in Cutter v. The Queen (1997) 143 ALR 498 where the question arose of whether an accused who had stabbed a policeman in the throat, having carefully opened a knife beforehand in a prison van, but who had done so whilst under severe emotion and under the effects of intoxication, had intended to kill that officer. In the judgment of Brennan, CJ. and Dawson, J., it was concluded that the jury were not entitled to have rejected the hypothesis that the stabbing occurred in anger and with aggression but without an intent to take life. However, their Honours were of the view that a conviction for unlawful wounding should be substituted for the conviction for attempted murder. Their Honours drew the following distinction (p.503):- "It is one thing to fight and wound and to resist the application of physical force that is resented; it is another to intend to take the life of one of those who is seen as applying the resented force." 49 Gummow, J. agreed with their Honours; McHugh and Kirby, JJ. dissented forcefully. The majority's views accord with the proposition, as do the remarks of Barwick, CJ. in Pemble (supra) that in the event that there is a real basis upon which the jury should not have found a relevant specific intent, no matter for what reason, the conviction is liable to be upset. In my view there is no such basis in this case.

The alternative verdict 50 It could only be on the basis that the jury were either misdirected or, as a realistic possibility, might not have been satisfied of the necessary specific intent that the question of the alternative verdict of manslaughter could arise. In my view they were not misdirected and there was no such realistic possibility. I will however, in deference to the arguments, shortly examine the bases on which manslaughter might theoretically have been left. 51 Manslaughter is available as a matter of pleading as an alternative verdict on an indictment for murder: Regina v. Downs (1985) 18 A. Crim. R. 75 but need not be left unless there is a valid basis in the evidence: Regina v. Schneidas (No. 2) (1981) 4 A. Crim. R. 101 at 105-107. 52 In Zecevic v. Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, the High Court of Australia considered the elements of self-defence and overturned its previous decision in Viro v. The Queen (1978) 141 CLR 88, holding that in the absence of self-defence, a killing within intent to kill or to do grievous bodily harm will be murder unless there was provocation or some other circumstance reducing the offence to manslaughter. Thus the absence of a belief or the absence of reasonable grounds for a belief that the degree of force used was necessary will mean that the defence of self-defence will fail and in those circumstances, manslaughter will not, absent other considerations, be available. 53 Here, no such matter as, eg., provocation is relevant (see Van Den Hock v. The Queen (1986) 161 CLR 158) and no request by the jury is relied on as requiring them to be informed of any possible alternative verdict: see Gammage v. Regina (1969) 122 CLR 444). 54 The elements of the offence of manslaughter described by the High Court in Wilson v. The Queen (1991) 174 CLR 313 require a killing by an unlawful and dangerous act. These elements do not involve merely a fall back from a failure to prove the elements of murder. Here, if the requisite elements of murder were not made out or self-defence was left unrebutted, the appellant was entitled to an outright acquittal. As is evident from my views on the issue of intent, I see no room for a half-way house verdict nor do I consider manslaughter should be thought of as such. To think of it that way is to evoke the ghost of the "compassionate verdict" which should have been exorcised in Gammage (supra). 55 I see no basis upon which, in the way the trial was conducted and on the evidence, manslaughter might have been properly left. I would reject both of the grounds of appeal dealing with the directions on intent and the alternative verdict. 56 No further argument is advanced in respect of ground four and thus I consider that it too has no substance. 57 I would propose therefore that leave be granted but that the appeal be dismissed. 58 SMART AJ: On 10 May 1994 there was a nasty confrontation in Junee Gaol. Yuksel Sancar stabbed Charles Richard Wicks to death. The jury convicted Sancar of murder. He contends that the judge wrongly refused to leave the possibility of an alternative verdict of guilty of manslaughter (by reason of an unlawful and dangerous act) to the jury, gave erroneous directions on the issue of intention to inflict grievous bodily harm and erred in giving the jury directions in terms of Black v The Queen (1994) 179 CLR 44 (the exhortation to further consider the evidence with a view to reaching agreement). This last mentioned ground was faintly argued and has no substance. 59 The main issue at the trial was whether the Crown had negatived that Sancar had acted in self defence. 60 Sancar had been using heroin for two months prior to 10 May 1994. A day or so before the killing, Sancar had a severe falling out over heroin supplies with Orr, a fellow prisoner and friend of Wicks. Orr had taunted Sancar and the glass in the window of Sancar's cell was broken by objects thrown from the outside. 61 The confrontation between Sancar and his friend Pehlivan on the one hand and Orr and Wicks on the other took place in the walkway outside the education section of the gaol. There was a substantial body of evidence that Sancar was armed with a half pair of scissors, shaped and sharpened into a dagger and Wicks was unarmed. A fist fight developed between Orr and Pehlivan and between Sancar and Wicks. After the latter two had exchanged blows, Sancar produced his knife and stabbed Wicks twice in the chest. Either blow was potentially fatal: the first blow was not amendable to treatment; and the second blow would of itself have caused death in the absence of treatment. Wicks died within minutes. 62 In his evidence at an earlier trial, read in the trial under appeal, Sancar claimed that he saw Wicks' hand go down to his waistband and the butt of a knife, the knife being down Wicks' pants. Wicks did not produce the knife because he, Sancar, grabbed Wicks' wrist. Sancar agreed that once he had hold of Wicks' wrist, he could not get the knife. Sancar said that he could not run away as Wicks was in front of him and that sooner or later he was going to have to let go of Wicks' wrist. He pulled out his knife, let go of Wicks' hand, Wicks tried to get his knife out and did not back off. Sancar stabbed Wicks. Sancar denied that he could have fended Wicks off for any length of time. When it was suggested to Sancar that there was no need to stab Wicks, Sancar replied, "I was going to talk my way out of it, was I?". Sancar insisted that he did not know that his stabbing would kill Wicks. Sancar agreed that he knew it would cause serious bodily harm to Wicks and that he did it nevertheless. He did not care what injuries the stabbing inflicted on Wicks. Sancar thought that this act could cause Wicks' death but with his life pending, Sancar was prepared to take the chance. He claimed that Wicks had thrown the first punch. 63 Sancar detailed the threats to his life made by Wicks and Orr on 9 May 1994. Sancar said that he took the knife with him on 10 May 1994 when he left his wing because he feared that he might be subject to some sort of attack. He said that he was in fear of his life as he had had threats against his life. Sancar agreed that in subsequent conversation with Pehlivan, he (Sancar) had used the phrase, "the murder weapon". Sancar said that he did not want to murder Wicks; it was self defence. 64 Orr in his evidence stated that prior to seeing Sancar's hand go into his pants, Sancar was being punched by Wicks. Sancar had his head down looking at the ground. Four inmates of Junee Gaol at the time of the stabbing gave evidence in support of Sancar. That evidence included that Orr and Wicks had knives and said that they were going to get Sancar. One said that after the stabbing he saw Orr dispose of two knives down a drain in the showers. The evidence of Mark Van Rysewyk (deceased), an inmate and Crown witness, given at the committal proceedings was read. It told of threats by Orr and Wicks to kill Sancar. 65 During the conduct of the defence case on 17 September 1997 (T879), the judge heard submissions as to the defences to be raised and the question of the alternative verdict of manslaughter. It seems that it was being sought to have the issue of provocation left to the jury. On the following day the judge indicated that he did not propose to leave the alternative verdict of manslaughter to the jury. 66 It seems that at a very late stage of the summing up, and probably after the main body of the summing up had concluded, counsel for Sancar at the trial applied to the judge to leave manslaughter by an unlawful and dangerous act and also as a result of provocation to the jury. 67 In refusing the application the judge had regard to Sancar's evidence mentioned earlier that he knew when he stabbed the accused that it would cause serious bodily harm and that he was prepared to take the chance that stabbing Wicks could cause his death. The judge said: "Counsel for the defence concedes ... that for the jury to import to the accused an absence of intention to inflict grievous bodily harm they must necessarily disbelieve the evidence given by the accused and attribute to him a state of mind different from that which he avows. There is ... no justification for such a course ... ." 68 Sancar does not complain in this Court about the judge's refusal to leave provocation.

Appeal ground 1: "The ... judge erred in determining that the alternative verdict of guilty of manslaughter by reason of an unlawful and dangerous act should not be left to the jury. 69 Sancar submitted that the judge's decision was based on the evidence given by him at his earlier trial and earlier summarised. The judge correctly attached much importance to that evidence. Also of importance was the concession of counsel earlier recorded. The appellant contended that the judge had erroneously equated the appellant's knowledge of the likely consequences of the stabbing with an intent to cause those consequences. 70 In the present case, the evidence established that the appellant deliberately stabbed Wicks at close quarters with a knife he had fashioned and taken with him for protection and use if necessary. As the appellant remarked, he was not going to talk his way out of the confrontation. It was the appellant who said that he knew that by his actions he would cause serious bodily harm to Wicks. 71 Counsel in making the concession mentioned appreciated that the real issue was self defence. On the facts and the appellant's own evidence, that was incontrovertible. For counsel for the accused to have addressed the jury on the issue of intent would have been foolish and deprived his submissions on self defence of much, if not most, of their force. On the materials, manslaughter was not a possible verdict. The evidence of the appellant's intent was strong. I would describe it as insurmountable. On the facts this is not a case where the appellant's intent and his knowledge of the consequences were separable. 72 The appellant faces a further difficulty. The jury has found that the appellant had the necessary intention to cause grievous bodily harm. The appellant sought to overcome this hurdle by contending that the judge had effectively foreclosed the issue of intent by telling the jury that there was no issue as to intent. It is necessary to look closely at what the judge said. 73 The judge told them: "The crime of murder is committed where the act of the accused which caused the death of the deceased was done by him with an intention to kill or inflict grievous bodily harm."

and: "... the Crown must also prove ... beyond reasonable doubt that the accused was not acting in self defence",

and: "... there is no issue that the deceased, Charles Wicks died ... nor is there any issue that the deceased died as a result of the stab wounds inflicted upon him by the accused",

and: "The issue ... is whether or not the accused was acting in self defence when he inflicted the stab wounds upon the deceased and in this regard the onus rests upon the Crown to prove beyond reasonable doubt that the accused was not acting in self defence. There is also no issue that in stabbing the deceased the accused intended at least to inflict grievous bodily harm. He said as much in the evidence that he gave on oath, which was read to you. ... However, the accused says that in the circumstances then prevailing, he was acting in self defence ... ." 74 The judge next handed to the jury some written directions. Relevantly, he continued: "You will see set out that the Crown must establish: (1) that it was the act of the accused in stabbing the deceased which caused his death, and (2) that the act was done with an intention to kill the deceased or to inflict grievous bodily harm, and (3) that the act was not done in self defence." 75 Thus, the jury were instructed that the Crown had to prove that the stabbing was done with the intention to inflict grievous bodily harm. Further, they were told that there was no issue about that. That could hardly be disputed when the accused had taken the knife with its five or six inch blade with him for protection, produced it during a fist fight and stabbed Wicks twice in the chest thus knowingly wounding and disabling Wicks before he could take any other action. There was no protest from Sancar's counsel about the judge telling the jury that there was no issue that in stabbing the deceased the accused intended at least to inflict grievous bodily harm. 76 The summing up correctly dealt with "self defence" at some length. It was the real issue. This is one of those cases where there was no reasonable basis on the evidence upon which a verdict of manslaughter could be found. 77 Appeal ground 1 fails.

Appeal ground 2: "The directions given by the ... judge on the question of intention to inflict grievous bodily harm were erroneous." 78 This ground is interlocked with ground 1, with the appellant relying upon the same submissions. It was contended that the judge's directions on the question of intent were erroneous and assimilated the appellant's intent with his knowledge of the consequences. Reliance was placed on the judge's earlier quoted comment that there was no issue that in stabbing the deceased the accused intended to inflict grievous bodily harm and that he said as much in the evidence read to them. 79 The observation that there was no issue that in stabbing the deceased the accused intended to inflict grievous bodily harm should be read in the light of the context of the events as they occurred including the preparations made, the entirety of the appellant's cross-examination and the way in which the trial was conducted. There must be added the concession made by counsel, apparently after counsel had heard most of the summing up and the absence of protest or objection by counsel to the judge's remark. 80 In the context of the present case the directions given by the judge were not erroneous. Appeal ground 2 fails.

Appeal ground 3: "The ... judge erred in giving the jury directions in terms of Black v The Queen (1993) 179 CLR 44." 81 The trial commenced on 1 September 1997 with the evidence concluding on 18 September 1997. The judge summed up on 19, 22 and 23 September 1997. Although a substantial number of witnesses were called, the facts lay within a simple compass. Essentially, it was a one issue trial. The jury considered their verdict from 2:58 pm to 4:00 pm on 23 September 1997. They resumed at 10:00 on 24 September 1997. About 11:45 am the jury raised certain questions. Pursuant to their request the jury was given the evidence of Mr Can at the trial and the evidence of the appellant in his earlier trial previous read to the jury. The judge explained that the appellant had made no statement to the police but had exercised his right to silence as he was entitled to do. In a statement made in July 1994, Mr Can, an inmate, had recorded highly incriminating statements by the appellant. These requests of the jury were eminently sensible. At 12:15 pm the jury resumed their deliberations. 82 About 2:15 pm the jury sought clarification as to what constitutes self defence and reasonable doubt. The judge gave correct directions in response. At 2:30 pm the jury retired to continue their deliberations. About 3:15 pm the jury sent the judge a note to the effect that following the clarification of self defence and reasonable doubt they could not agree and that this was final. The judge decided to give the jury a Black direction. This was the right course to follow. The trial was in its fourth week and the jury had deliberated for about one day. About 3:30 pm the jury retired to further consider their verdict. The jury returned at 5:15 pm with a verdict of guilty of murder. There was no undue haste. Nor was the jury dilatory. Despite the firm statement in the jury note, the judge was correct in directing the jury to further consider the matter. It is not uncommon for juries to reach agreement after a Black direction even where there have earlier been strong conflicting views amongst the jury. There is no basis to attack the judge's exercise of his discretion. Appeal ground 3 fails. 83 The appeal against conviction should be dismissed. * * * * * * * * * *

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