REGINA v Warren Alan FORBES [2005] NSWCCA 377 | Case summary

REGINA v Warren Alan FORBES [2005] NSWCCA 377 | Case summary | Zoe

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The Conviction Appeal 4 The Appellant shot Andrew Hullick dead in the latter's caravan in the early hours of Friday 3 May 2002. That the shooting occurred was not in issue at the trial. The issues were whether the Appellant was guilty of murder and if not, whether he was guilty of manslaughter. The Appellant's case relied on an act of self-defence which the jury could accept as to absolve him from guilt of any crime or, alternatively, could decide that it reduced the killing from murder to manslaughter. 5 On the fatal night in the caravan four shots had been fired from a .357 calibre Magnum revolver. The deceased suffered a chest wound and an abdominal wound. With respect to the two other shots, one bullet passed through the cupboard to the left of the caravan's entrance and the other went through a pillow at the head of the bed. It is pertinent to note that those locations were at opposite ends of the caravan. The experts who gave evidence could not determine the order of the shots. The deceased was found lying on his back on the floor of the caravan. 6 There was a body of evidence at the trial about the ownership of the revolver which different men had in their possession at various times in the month before the shooting. For present purposes it is sufficient to note that the Appellant, who had earlier had and given up possession of the revolver, retrieved it the night before the deceased was killed. 7 The Appellant and the deceased had had a long friendship which had become fraught in recent times. Allegations had been made by the deceased that the Appellant had a sexual relationship with the deceased's wife and that the Appellant had broken into the deceased's caravan and stolen goods, including guns. 8 There was evidence from the Appellant's girlfriend that a few hours before the shooting the Appellant told her that he was going to see the deceased to sort out the accusations he was making that the Appellant had been sleeping with his wife. 9 After the shooting, the Appellant at first denied any involvement. He did however, take steps to cover up any forensic evidence by having friends clean his car, showering himself more than once, clipping his fingernails, using a lighter to burn any gunshot residue left under his fingernails, disposing of his clothes and cleaning bank notes which apparently came from a substantial sum of money taken from the deceased after his death. There was also evidence of a number of admissions made by the Appellant to his friends suggesting that he had acted in self-defence. 10 The Appellant asserted that he and the deceased discussed a range of topics until the deceased became angry and accused him of breaking into his caravan a few days earlier and having an affair with his wife. He said that the deceased loaded bullets into the magazine of a rifle which he had in his hands and at one stage, whilst holding the rifle, the deceased charged at him. The Appellant said that the deceased tripped, the rifle dropped to the floor and a scuffle then occurred between the two men. 11 The rifle was found on the foot of the bed with a number of bullets in the magazine and one in the chamber. The rifle had not been discharged. It was covered by a blanket. The evidence indicated that there was little in the way of breakages or overturning of objects in the caravan. The Crown case was that these observations were inconsistent with any kind of vigorous struggle between two grown men in a confined space having occurred. 12 The Appellant's case was that two shots from the revolver were fired by the deceased before he wrenched the pistol from him. When the Appellant had control of the pistol he agreed that he cocked the gun and aimed it at the deceased "to get [the deceased] away from me". He said that he had no recollection of firing the second shot but accepted that he must have. 13 There was a body of evidence about the deceased's anger with the Appellant and another at that particular time. There was also evidence of the deceased's propensity for violence.

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Ground 2: The trial miscarried by reason of the failure of his Honour to fully direct the jury as to the reasons why they should not carry out their own research and/or consider material other than evidence adduced at the trial. 15 These grounds of appeal turn on an incident that occurred on Day 10 of the trial when a juror was found in possession of two publications. The first was a book entitled Guns and Gunsmiths. The second was an advertising brochure predominantly for ammunition. 16 At the commencement of the trial Hulme J had given the jury a customary instruction in the following terms: "That decision is one which you must make on the basis of the evidence which you have heard here in Court. It would be utterly wrong for you to take into account something which is not included in the evidence you hear. For that sort of reason, and because not only must justice be done it must be seen to be done, you must not take account of anything else which you hear or may hear, which you see or may see. You decide the case on the basis of the evidence." (T153) 17 His Honour also directed the jury that it would be wrong for any contact by a person outside the Court to play any part in their deliberations and that if something like that were to happen they should inform the court officer. 18 He also directed the jury not to discuss the case with friends or family. He said: "[T]hey won't have heard the evidence. We don't want you influenced by anything anyone else says and the best way to do that is to ensure there is no discussion between you and anyone else." (T155) 19 When the matter was drawn to his Honour's attention, counsel for the Appellant applied for the jury to be discharged on the basis that the inference was available from the juror "flouting your Honour's direction", that the juror was willing to "go beyond the evidence in this trial" and that it was "inconceivable that he would not share his knowledge or the knowledge he had acquired with other jurors" (T602). 20 Hulme J refused to discharge the jury before counsel read the publications, particularly the book: " … to see whether it has anything in it that bears on an issue which may possibly arise in this trial of the circumstances in which a revolver may fire except in consequence of a conscious deliberate pressing of a trigger. It seems to me that a final decision on the application should not be made until an opportunity has been had to have a thorough look through the book in relation to that topic." 21 His Honour indicated that the application to discharge the jury could be reviewed the next Monday. 22 His Honour then informed the jury of what had happened and said: "At the beginning of this trial I sought to make you all aware that the case had to be decided on the basis of the evidence given in this court which I heard, which the accused heard, and which the Crown heard. For a jury member or for all jury members to go off doing their own research into matters which might arise or have some bearing on the issues which arise in the case is quite inappropriate conduct on the part of the juror or jurors. I haven't had the time yet to see what is in the book nor has counsel. I don't know whether what is in the book will bear on the issues in the case or whether it won't. If it does, I don't know whether what is in the book is right or wrong or whether there are any other books that say exactly the opposite, but you can see the problems which arise from a juror deciding to do his or her own research into this sort of thing. I have said research and that may be putting the matter too highly, because in the way in which jurors are selected at random, it may be that one of you is a gunsmith, it may be that one of you or more of you have extensive experience with firearms, we don't know. That possibility is an incident of the random selection of jurors. But while we can accept that, it is not appropriate for someone to go, as it were, and do some extra research into matters which might arise in the course of the trial. I had hoped I said it strongly enough at the outset but I would say it now and I hope with unmistakable clarity, this case has to be decided on the basis of the evidence given here and not on any other material at all. I presently have possession of the book. I intend to make it available to counsel and I intend that between now and Monday morning one or all of us will have read it with sufficient care to see whether and to what extent it might have any bearing on the issues which arise in the trial, but for the moment we will just proceed, but please don't anyone else do anything by way of trying to do their own detective or research work." (T603-604) 23 The next Monday, 1 March 2004, the issue was discussed again. On that occasion counsel for the Appellant said expressly: "I have read the book and it doesn't touch on any vital issues that I can see …" (T647) 24 There was no renewal of the application to discharge the jury on this basis. 25 The significance of deciding the issue on the evidence before the jury, and only on that evidence, was reiterated by his Honour in his summing-up to the jury on a number of occasions. See at p3.7, 7.9 and 8.6 (a passage I will set out in dealing with appeal ground 3). 26 The occurrence of an irregularity in a criminal trial, including an irregularity involving the jury, invokes the overriding principle of a fair trial. As Lord Devlin put it in Connelly v DPP [1964] AC 1254 at 1347: "[N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their powers to see what was fair and just was done between prosecutors and accused." 27 The issue before this Court is, as is usually the case: " … whether something that was done or said in the course of the trial … resulted in the accused being deprived of a fair trial and led to a miscarriage of justice." ( Dietrich v The Queen (1992) 177 CLR 292 at 300 per Mason CJ and McHugh J, see also Toohey J at 353.) 28 The reference to "miscarriage of justice" invokes the traditional formulation found in this State in s6 of the Criminal Appeal Act 1912. Clearly not every irregularity can constitute a miscarriage of justice. It is often said that the irregularity must be a "material irregularity". (See e.g. R v Minarowska (1995) 83 A Crim R 78 at 87-89.) 29 The test for determining the materiality of an irregularity has been variously stated. The test applied in this State is that set out by Gleeson CJ, with whom Lee CJ at CL and Hunt J agreed, in R v Marsland (unreported, NSWCCA, 17 July 1991): "… [T]he question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred." 30 His Honour applied to the case of an irregularity, the test for a miscarriage of justice where evidence was wrongly admitted referring to Maric v The Queen (1978) 52 ALJR 631 at 635, which in turn relied on Driscoll v The Queen (1977) 137 CLR 517 at 543. Marsland has been applied in relevantly analogous circumstances in subsequent cases in this State. (See R v Rudkowsky (unreported, NSWCCA, 15 December 1992); R v Rinaldi (1993) 30 NSWLR 605 at 613; R v K (2003) 59 NSWLR 431 especially at 446 [68]-[78]; R v Skaf (2004) 60 NSWLR 86 at 98 [242].) The test so formulated is consistent with earlier authority in this State. (See R v Forbes (1944) 44 SR(NSW) 333 at 342-343.) 31 A somewhat different test has been propounded in Victoria. There the relevant test of materiality is whether the irregularity "was such as to give rise to a reasonable suspicion or concern about the fairness of the trial" (R v Hodgkinson [1954] VLR 140 at 144; R v Chaouk [1986] VR 707 at 712; R v Gae (2000) 1 VR 198 at 231 [105]; and see R v Emmett (1988) 14 NSWLR 327 at 339). The test has also been formulated in terms of a "reasonable apprehension that the [irregularity] may have relevantly influenced the jury in reaching the verdict of guilty" or whether "as a matter of common sense, the irregularity did not materially affect the conduct of the trial …" (R v Gae supra at [108] and [112]). 32 It does not appear to me that the Victorian test would operate differently to that applied in New South Wales. In any event, on the facts of this case no such possibility arises. 33 Where, as here, the irregularity is discovered during the course of the trial, the trial judge is able to give directions to the jury of a kind which may avert any possibility of a miscarriage of justice. His Honour gave further directions, as quoted above. 34 In the present case I am satisfied that there was no material irregularity. In any event his Honour's clear and firm direction on this matter was more than adequate in the circumstances. I am quite satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if it had not occurred. There is no basis for concern about the fairness of the trial. 35 It was not suggested in this Court that such, if any, irregularity as may have arisen had any material bearing on the trial. The concession by counsel at trial that it did not was not questioned. 36 Nothing appears to turn on the pamphlet about ammunition. Nor does anything turn on the contents of the book, which is a survey of the history and technical development of firearms, including a chapter on revolvers. 37 Although, at the time the incident occurred, the evidence about the weapon was in a narrow compass, counsel for the Appellant at trial was no doubt aware of the evidence that would be given in this respect and that nothing would turn on the contents of the book. In the event that proved to be so. 38 There was no dispute at the trial that the deceased died after being shot by the Appellant. Nor was there any dispute about the way in which the revolver operated, particularly the fact that it was single shot revolver, so that the hammer had to be cocked on each occasion prior to the trigger being pulled. There is no material irregularity where the jury acquires information which is the same as that which it subsequently receives in the proper course of the trial (Minarowska supra at 87) or which does not relevantly differ from the evidence in the trial (R v Domican (No 3) (1990) 46 A Crim R 428 at 447-448). 39 In the absence of any suggestion of materiality, I can identify no miscarriage of justice of any kind. 40 The Appellant submits that the fact that a juror would conduct research notwithstanding the instruction given by the trial judge at the commencement of the trial, indicated that that juror would "be likely to take such information into account in the exercise of the jury function". This, it was submitted, gave rise to a "perception of possible unfairness", which could not be cured by the direction of the trial judge because "the damage had already been done". It was submitted this Court "could not be satisfied that the irregularity has not affected the verdict and the jury would have returned the same verdict if the irregularity had not occurred". 41 This submission should be rejected. 42 I am prepared to proceed on the assumption that the juror had brought the book to the jury room for some purpose of the trial. This assumption is favourable to the Appellant's case. The possession at the same time of the brochure on ammunition, which no-one suggested had any bearing on the case, indicates that some other purpose was involved, a reasonably likely occurrence for a juror in rural New South Wales. However, I proceed on the assumption stated. 43 I reject the submission that the Court should somehow infer from the fact that the juror was in possession of this book, subsequent to his Honour's original instruction at the outset of the trial, that the juror was generally prepared to act contrary to direction. There is no proper basis for any such inference. 44 In any event I would apply the observations of McHugh J in Gilbert v The Queen (2000) 201 CLR 414 at 425: "[31] The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no-one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or of the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. … [32] In my respectful opinion, the fundamental assumption of a criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge's directions …" 45 To similar effect were the observations of Gleeson CJ in R v VPH (unreported, Court of Criminal Appeal, 4 March 1994) at 7: "The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character." 46 It was also submitted that his Honour's directions after the book came to light were inadequate. Specifically, it was asserted that his Honour did not enunciate the reasons why a juror should not do his or her own research. This submission should also be rejected. His Honour reiterated on many occasions, quite forcefully when instructing the jury after the book incident, that it was essential that they decide the case only on the evidence in the trial. 47 Reliance was placed on the judgment of this Court in R v K supra esp at [89]-[90] where this Court recommended that jurors be given additional instructions at the commencement of the trial, in addition to those which it had become customary to give. This included an instruction that they should not undertake independent research. His Honour did in fact give such a direction immediately after the book incident. As quoted above, he said to the jury: "Please don't anyone else do anything by way of trying to do their own detective or research work". There is no reason to believe that this was not entirely effective. 48 Reference was also made to the subsequent judgment of this Court R v Skaf (2004) 60 NSWLR 86 that elaborated upon the direction that had usually been given with respect to jurors conducting their own inquiries. Nothing in Skaf suggests that the absence of a direction of that character necessarily suggests a miscarriage of justice. In this case there is no basis for the suggestion that his Honour's direction against further research was in any way inadequate or not complied with. There is no suggestion that any further research, if the book were such, occurred. 49 These grounds of appeal should be dismissed.

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Ground 3: The trial miscarried by reason of prejudicial press publicity prior to and during the course of the trial. 50 It is submitted that the collective effect of the pre-trial and trial publicity was so prejudicial that the trial was fatally flawed. This issue was agitated in this Court in an application under s5F of the Criminal Appeal Act seeking leave and for an order staying the proceedings. Leave was refused. (R v Forbes [2004] NSWCCA 55.) The matter was left open for challenge in any appeal. 51 In this regard the Appellant relied on a range of publications in The Border Mail, a newspaper published in Albury. The evidence was that about 40 copies were sold every Saturday in Griffith, where the trial was held. On weekdays, less than 20 copies were sold. The Appellant also relied on a publication, on 27 February 2004, being two weeks into the trial, in The Area News, a newspaper published in Griffith itself. 52 An article published in the course of the trial in a newspaper circulating in the town where the trial was being conducted is clearly capable of affecting the trial. The article complained of included a picture of the Appellant being taken from the prison van in handcuffs. He was surrounded by six Corrective Services officers, one of whom had a German shepherd dog on a lead. The caption to the picture was "Accused murderer Warren Alan Forbes is led into Griffith Court House on Wednesday". As his Honour said, the publication of such a photograph was entirely inappropriate. 53 The Appellant submits that such a photograph appearing during the trial could create an impression that the Appellant was dangerous. Further, the caption could be interpreted as a suggestion that the Appellant, having already committed one murder, was now accused of another murder. 54 In the s5F judgment in this Court Grove J noted that the inferences capable of arising from the photograph could "readily be cured by an appropriate direction" (at [12]). Hulme J had given the jury general directions, in the course of his summing-up, to put out of their minds any pre-trial publicity of which they were aware. After becoming aware of the Court of Criminal Appeal judgment, Hulme J provided additional directions with respect to the photograph. 55 His Honour had at first said: "And by the evidence I refer to the exhibits tendered and what has been said by the witnesses in this court room. That limitation is important. Indeed it is fundamental to our system of justice. Generally trials are preceded by what are called committal proceedings, a court case where a Magistrate considers evidence which the police or Director of Public Prosecutions put before him and decides whether there is sufficient to justify have a trial at all. That evidence is not always the same as a jury in due course has to consider. The press, the newspapers and television studios commonly report such proceedings as they do of trials such as this. I do not know the extent of publicity which may have occurred in relation to this accused or whether any of you saw or remember it. But if you did, all of that publicity must be put completely out of your mind. The fairness each of you would expect if you were on trial requires that you decide the case on the basis of only the evidence given in this court room over the last four weeks. So anything you may have read in newspapers during this trial or earlier, completely ignore it." 56 Subsequently, his Honour added the following direction with respect to the photograph: "Members of the jury, before I turn to the evidence there is one further legal direction I want to give you by way of supplementing something I said this morning. I said to you that the case was to be decided on the basis of the evidence, what the witnesses said and the exhibits given in court here. There is one further matter I want to raise specifically. It is obvious from the presence of Corrective Services officers in court during the course of the trial that the accused is in custody. During the trial there was a photocopy which some of you may have seen in a local newspaper showing him arriving at court in the presence of Corrective Services officers, and I think with the caption below it something to the effect: 'Accused murderer arrives in court'. Now, you won't be surprised to know that many persons charged with offences as serious as murder are kept in custody pending trial. Indeed it is rather an exception if someone charged with that offence is not kept in custody. When you think about it you will appreciate that the fact of such custody says absolutely nothing about whether a particular person is or is not guilty, and the fact that some newspaper journalist is stupid enough, and I use the word advisedly, to use the expression 'accused murderer' for someone who is accused of murder also says nothing about whether the accused person is guilty or not. I mention this because we try to be very sensitive about any suggestion that somehow or other some extraneous factor may have come to bear. You might think there was absolutely no need for me to raise these matters, and probably there was not, but just so the matter is put beyond any shadow of a doubt that sort of photo or remark in the paper is of absolutely no relevance or significance whatsoever. You are the ones who are given the task of deciding whether or not Mr Forbes is guilty of murder. So do not be influenced by anything else other than what you have heard here." 57 In my opinion, his Honour's detailed direction deprives the publication of the photograph of such, if any, force it may have had. I am satisfied that the Appellant's right to a fair trial was not infringed in any respect. There was no miscarriage of justice. 58 The trial before Hulme J commenced on 16 February 2004. The committal proceedings in this matter had taken place in Albury Local Court from 16 April 2003 to 28 April 2003. The earlier committal proceeding involving Mr Kimball had taken place in Albury Local Court in late January concluding on 10 February 2003. 59 Twenty-five articles were published in The Border Mail with respect to the two matters before the trial. Eleven concerned the death of Hullick and 14 either related solely to the death of Kimball or to the duality of charges against the Appellant. Of these articles all but two were published between 30 May 2002 and 12 June 2003, i.e. concluding some eight months before the trial. They were concerned with the two committal hearings. Two articles were published subsequently, during the disposition of the Kimball matter. The first on 16 October 2003 referred to the proceedings in court when the Appellant pleaded guilty to the manslaughter of Mr Kimball. The second on 6 December 2003 cited some of the evidence given at the sentence hearing in the case of the manslaughter of Mr Kimball. The last article did make a reference in its final sentence to the fact that the Appellant faced a trial in February for the murder of Mr Hullick. 60 The articles appeared in a newspaper circulating primarily in Albury with only a few copies available at a newsagent in Griffith. The articles were also available on a website which would theoretically have been accessed by a juror. No doubt the publicity was a reason that the trial was conducted in Griffith rather than Albury. 61 The articles are unexceptional and in large measure incapable of having any effect on the fairness of the trial. The extent and nature of the publicity does not approach the media campaigns in a line of cases which have been held not to have infringed the right to a fair trial. (See the summary in R v Dudko (2002) 132 A Crim R 371 at 374 [18]-[23].) The content and timing of articles relied upon in this case were far removed from anything which could be said to impinge on a fair trial. 62 The Appellant's submissions relied generally on the publicity. However, the only matter that could be said to be relevantly prejudicial were the facts relating to the death of Mr Kimball of which he was convicted of manslaughter after a plea. 63 In my opinion, it is unlikely that if the facts about the earlier manslaughter had come to the attention of any juror in Griffith, that the juror would link that case to the matter before the Court. There is no suggestion that any juror did make any such link. Accordingly, the submission is based on mere speculation. Forbes is not an uncommon name. The information was contained in a paper with limited circulation in Griffith. All the information was published well before the trial, most of it long before. If there was anything prejudicial in the mind of any juror, his Honour's forceful directions on pre-trial publicity were sufficient to dispel any such effect. 64 As Mason CJ and Toohey J observed in The Queen v Glennon (1992) 173 CLR 592 at 603: "… [T]he suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence." 65 Hulme J rejected an application to discharge the jury based on the pre-trial publicity. During the course of this judgment his Honour said: "Reference to the cases where charges arising out of more than one incident is made to indicate that the rule of ensuring juries hear of nothing prejudicial to an accused which does not relate to a particular charge is not absolute, and it is recognised that jurors can, while in receipt of wider information, properly address the evidence relating to a particular charge without being prejudiced by a wider knowledge. In other respects also trials proceed upon the basis that juries will adhere to instructions given to them by trial Judges. Sometime evidence is admitted and only available to be used for limited purposes and juries are regarded as being capable and willing to obey instructions that such evidence is not to be used for other purposes. Parliament in provisions of various Acts, particularly the Evidence Act, has accepted this approach. They said, the instant case is in some respects an unusual and perhaps extreme case. In consequences of the fact that the publicity related to not just any or some incidental criminality, but another crime involving death and also because the publicity in relation to that further crime was as recent as October and December of last year, it seems to me that if any of the jurors did see and pay any appreciable attention to the Border Mail of 16 October or 6 December 2003, it is likely they would remember at least some of that publicity during the course of this trial. … … I do not think that given the nature of the application and the evidence which has been put before me as to the extent of publicity, I should regard the matters referred to in the immediately preceding paragraph as of any weight against the application. There is also the fact that the trial is now halfway through its second week though this application was foreshadowed on Monday of this week. There is clearly a cost to the community in terms of taxpayers' funds and in the inconvenience and stress imposed on one of more of the jurors and the witnesses, and perhaps the family of the victim, in the case. The weight of those matters however is also limited. They mean that I should not grant this application merely upon the basis of some theoretical possibility of injustice, but they do not hold much weight if there is any real risk of the trial not being fair by reason of its continuance in Griffith. The issue as I finally see it is with whether one can be confident that directions to the jury will be sufficient to ensure that the trial is fair. The Crown has drawn to my attention the decision of the Court of Criminal Appeal in R v Bell (unreported CCA, 9 October 1998) and I have had the opportunity of reading the remarks of the Chief Justice, with whom the other members of the Court agreed, during the course of my consideration of this application. I do not think anything is to be gained by my repetition here of matters therein contained. I should say I have also on previous occasions, when sitting in the Court of Criminal Appeal, had occasion to direct attention to the topic of directions to the jury being capable or incapable of covering complications of various types which arise as a necessary incident of jury trials. My experience and general approach is that jurors properly instructed do perform their roles properly. That is also the experience of other members of the Court. Of course I do not suggest by that that the system is necessarily perfect in every case but as was said in the matter of Ivan Milat, 'ultimately, however, it is the capacity of jurors properly instructed by trial judges to decide cases by reference to legally admissible evidence and legally relevant arguments and not otherwise, that is the foundation of the system.' I am satisfied that in this case, so long as they are properly directed as I believe they will be, a jury will be able to decide the case against the accused not on the basis of what they may have read about his involvement in some other offence, even if one makes the assumption that they have or some of them have read that material, but on the basis of the evidence in this case. I would, however, add this. Given what I see as the small extent of distribution of the Border Mail in Griffith I would regard it as highly unlikely that any one of these particular jurors has, in fact, read the matters which have led to this application." 66 His Honour's reference to my observations in R v Bell (unreported, Court of Criminal Appeal, 8 October 1998) is a reference to a passage in the reasons in which I refer to the observations of many other judges, to the same effect as that which his Honour, a very experienced trial judge, made about the fact that jurors perform their roles properly and act in accordance with the instructions they receive. 67 I have also set out a number of these cases in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at [59] and [93]-[110] and summarised the case law in the following way at 366: "[103] There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial medial publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular, that they listen to the direction that they are to determine guilt only on the evidence before them." 68 In my opinion this Court should proceed in this case on the basis that jurors properly perform their task, are true to their oaths and comply with a trial judge's directions. His Honour directed the jury on numerous occasions about the importance of deciding the case only on the evidence before them. He specifically directed their attention to the need for them to put out of their minds any pre-trial publicity of which they might have become aware and specifically directed them about the occasion of the publication during the course of the trial of the photograph in a locally circulated newspaper. There is no reason to believe that the jury did not obey these instructions insofar as they had in their minds anything of a prejudicial character, a fact which, like his Honour, I see no reason to suspect. 69 This ground of appeal should be rejected.

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Ground 4: That his Honour erred as a matter of law in the directions that he gave to the jury in relation to the elements of murder, manslaughter and the application of the law of self-defence. 70 The submissions on this ground were directed to the law of self-defence. The Appellant asserted that his Honour failed to explain the meaning and role of self-defence in the context of this trial and, thereby, also failed to conform with ss410, 419 and 421 of the Crimes Act 1900. 71 The Appellant's submissions do not suggest that his Honour erred in any particular way by mistating the law regarding self-defence. Rather, the submissions assert that the directions his Honour in fact gave, being a combination of a written document and oral directions, were confusing and therefore, that his Honour failed to relate the facts of the particular case to the directions of law. 72 Counsel for the Appellant placed reliance on the contents of Criminal Trial Courts Bench Book. The complaint is made that his Honour failed to follow the model directions on this matter. His Honour considered the model directions and decided to pursue a slightly different course. This Court should reject the use of the Bench Book as some kind of standard, a departure from which is capable of being relied upon as a ground of appeal. 73 As I have written in the Foreword to the Bench Book: "It is appropriate to reiterate that the Bench Book does not contain an authoritative statement of the law. Practitioners should not act on the basis that a failure to direct in accordance with the Bench Book is of itself indicative of legal error for appellate purposes. Authority for what ought have been in the content of a direction in a particular case will need to be identified elsewhere." 74 (See also R v Zoeff [2005] NSWCCA 268 at [93].) 75 The publication of standard directions in the form of the Bench Book is of great assistance to trial judges. Nevertheless, a summing-up must not be converted into a set of formulae which are not necessarily appropriate to the issues that arise in any particular trial. As Gleeson CJ said in Doggett v The Queen (2001) 208 CLR 343 at 346: "[2] … Directions are not ritualistic formulations. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties." 76 The fact that his Honour did not follow with precision the direction in the Bench Book is irrelevant. The issue is whether his Honour failed to give appropriate directions to the jury, relevantly, on the issue of self-defence. Other than the suggestion that the effect of his Honour's directions may have been confusing, the Appellant's submissions do no more than assert that his Honour's directions were not "proper and adequate", without identifying any respect in which that was so. 77 There was some criticism of the structure of his Honour's written directions based on the terminology of s418 of the Crimes Act which provides: "418(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 78 It was submitted that his Honour's written direction separated in its structure the reference to the belief that conduct was necessary in self-defence from the reference to whether or not the conduct was a reasonable response. It was submitted that both of the issues should be set out in one separate heading of self-defence. There is nothing in the section that suggests that is required or that the trial judge should be in any way obliged to combine the two elements. Separate issues arise: whether or not there was a belief on the one hand; and whether or not the conduct was a reasonable response on the other. Nothing in his Honour's treatment of these matters was, in my opinion, in any way confusing or in error. 79 A summing-up to a jury is an exercise in communication between judge and jury, the principal object of which is to explain to the jury the legal principles relevant to the performance of their task and to relate those principles to the facts and circumstances of a particular case. It is essential that judges adapt the directions to the particular issues in the trial. (See Doggett as quoted above.) It is, as has frequently been emphasised, desirable that a judge employs easily understood, unambiguous and non-technical language. 80 As Lord Hope of Craighead said in Re Attorney-General's Reference (No 3 of 1994) [1998] AC 245 at 272F-G: "Trial by jury, which lies at the heart of our system of criminal justice, is a process which needs to be kept as simple as possible. The concepts which jurors are required to apply must be intelligible to ordinary people, which means that they need to be capable of being explained in a few words which ordinary people will understand and can apply without undue difficulty." 81 As Lord Mackay said in R v Adomako [1995] 1 AC 171 at 189: "… [T]he supreme test that should be satisfied in such directions is that they are comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular prior acquaintance with the law." 82 I turn to consider the only proposition argued under this ground of appeal - the allegation that the jury may have been confused. 83 Hulme J gave separate directions to the jury on murder and manslaughter. Those directions were partly in writing and partly oral. As has become customary, his Honour provided the jury with a document which set out the essential elements of the offences, relevantly murder and manslaughter, and also set out for the jury, in a logical sequence, the various steps that the jury would need to take to determine the issues that had arisen in the trial. This practice is widely followed and is to be encouraged. In a case of any complexity the provision of a written checklist will be of considerable assistance to a jury. Indeed, the practice is expressly authorised by s55B of the Jury Act 1977, which provides: "55B Any direction of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so." 84 His Honour set out the manner in which a verdict of guilty of manslaughter could be reached in the alternative to the charge of murder. The two ways in which it was suggested in this trial that the jury could arrive at a verdict of manslaughter were death by reason of an unlawful and dangerous act on the one hand and an act of self-defence which was not a reasonable response on the other hand. 85 His Honour's written directions set out as an essential element in each case that the deceased's death was caused by a deliberate act of the accused. They set out the two ways to reach a manslaughter verdict, relevantly:

[20]

"B" Where the act was both unlawful and dangerous: "(v) either (a) that at the time the act was done the Accused did not believe his act was necessary to defend himself, or (b) that the Accused's conduct was not a reasonable response in the circumstances as he perceived them to be." 86 His Honour further instructed the jury in writing under the heading "Self-defence": "In determining the issues raised in paragraphs A(ii) and B(v) above, you must consider all the circumstances including, without attempting to be exhaustive, - · The actions and statements of the deceased, as the Accused at the time of his act perceived them to be, · Any attribute of the Accused which bears on his perception of those circumstances and which had a bearing on any belief he may have formed, and · The Accused's knowledge or belief as to the deceased's prior conduct." 87 His Honour used the written directions as a basis for his oral summing-up. He took the jury through each of the sub-paragraphs of the document and elaborated on each. On the topic of self-defence he gave detailed directions on the subject which, although not following the precise direction in the Bench Book, covered the same ground. There was no submission that anything of substance had been omitted. 88 The directions on self-defence occupy five pages of the transcript. It is unnecessary to set them out here (SU 14-18). It is sufficient to note for present purposes that his Honour directed the jury at each of several points where it was material to do so, that the jury had to determine whether the Appellant's response by way of self-defence was reasonable. The suggestion in the Appellant's submissions that this issue was not put before the jury with sufficient clarity is entirely without foundation. 89 The issues that arose under the topic of self-defence did arise in different ways by reason of the requirements of the statute. His Honour's directions were accurate. Indeed, there has been no submission that there was any error. His Honour's method of taking the jury through the document which identified the issues that they had to determine in a logical sequence, with oral elaboration in clear language was, in my opinion, of great assistance to the jury. 90 The Appellant submitted that a summing-up which is comprehensible only with the aid of a written document is not an effective communication tool. In part this submission was based on the structure of the document which required the jury to navigate through the document involving a heading, a paragraph number and then sub-paragraphs. Furthermore, it was suggested that the means of communication to the jury which his Honour adopted assumed that each member of the jury had an ability to read and comprehend a document, at the same time as listening to verbal instructions. In my opinion these submissions should be rejected. 91 It is not clear what alternative the Appellant submits ought to have been followed. An entirely oral presentation of the full range of issues, both of fact and law which arose with respect to self-defence, would, in my opinion, probably have bewildered the jury. The Appellant may very well have had more cause for complaint if his Honour had not provided the jury with the detailed written outline, in logical sequence, of the issues in the trial for their assistance to follow the oral instructions as they were given. 92 The suggestion that his Honour's mode of proceeding was inappropriate because it assumed that all jurors can read and follow proceedings by reference to the written document should be rejected. This assumption is entirely appropriate in the absence of any suggestion that any juror had a difficulty. The level of literacy in the Australian community is high. There is nothing in the concepts that the jury was required to grapple with, nor in the terminology that his Honour used to explain them, that would give rise to confusion in the minds of the jurors as to what they had to decide. 93 Some reliance was sought to be placed on a question which the jury asked in the course of its deliberations as follows: "(1) Is self-defence (the meaning) the same in both murder and manslaughter? (2) Has the meaning of the word 'act' in both definitions (manslaughter and murder) have any bearing on the definition of self-defence? (3) Does the definition of the word 'act' have any bearing to manslaughter or murder?" 94 The second question was a reference to his Honour's identification in his written direction of which "act" caused the death. His Honour had identified in different terms the respective offences of murder and manslaughter in a manner of which no complaint is made. 95 His Honour responded to the jury's questions, after receiving submissions from counsel, saying that the answer to the first question was "No". He added that that was so "particularly in the context of the written directions you have been given". In the murder directions the only aspect of the law of self-defence the jury had to look at was that contained in his written direction. He went on to say that if they concluded that the accused was not guilty of murder, they had to consider the topic of manslaughter. He reiterated the steps they should take on the issue of self-defence with respect to each of the alternative bases upon which the jury could come to a conclusion of manslaughter as set out above. 96 His Honour gave further assistance to the jury when he said: "Because self-defence is dealt with in three places, murder directions, section A of the manslaughter directions and section B of the manslaughter directions there is, not surprisingly, some overlap in the three areas or between the three areas. However, there are also differences between the three areas and its essential that when you are considering one set of directions, be it murder, be it manslaughter A, be it manslaughter B you only look at the precise issues raised in that set. Now I doubt if it is necessary to say this but by way of explanation I shall. There are complications in the way Parliament has expressed the law of self-defence. What I have done in the three sets of directions is to try and eliminate the complications so that you only are looking at the bits you need look at one section at a time. In other words, instead of trying to say here is it all and here are all the possible permutations and combinations, I have broken it up so that when you look at the murder directions just look at what I have said about self-defence there. When you come to manslaughter A just look there. Manslaughter B just look there. Of course there is an explanation at the bottom of both sections and you look at that also." 97 These were perfectly reasonable directions, about which the jury could have had no doubt. No complaint was made by counsel for the Appellant at the trial. The Appellant submitted that the questions themselves indicated the jury was concerned about the potential application of the law of self-defence on the facts. I do not see any basis for the suggestion. It was by no means clear what the jury had in mind. Whatever it was, his Honour's answers were accurate. Indeed no complaint was or is made about his answers. In my opinion there was no miscarriage of justice. This ground of appeal should be dismissed.

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The Case of the Deceased Kimball 100 There is no appeal from the conviction in this case. It is necessary to set out the relevant facts. 101 The deceased, his wife and some friends left the Globe Hotel in Albury at about 3.30am on Sunday 6 January 2002. The Appellant and some of his friends also left the hotel at that time. The deceased accidentally bumped the Appellant but there was no immediate animosity. However, one of the Appellant's friends began arguing with the deceased over the bumping incident. The Appellant then became involved in an argument with the deceased. Fights broke out amongst various groupings of about 30 patrons on the footpath. Included amongst those engaged in the fighting were the Appellant, his friends and the deceased. In the course of this mêlée the Appellant left the area in which his friends were fighting with the deceased and engaged in a fight or fights with two or three other persons. During that process, whilst the deceased was still on the ground and being kicked by the Appellant's friends, one of them stabbed the deceased once, fatally wounding him. They all then ran from the scene. 102 The agreed Statement of Facts before his Honour, which his Honour accepted, said: "At the time of the fight the prisoner was aware that both (his friends) were well affected by alcohol, had earlier used cannabis and may have been armed with a knife. When he joined in the fight that night the Applicant appreciated that there were risks that (one or other of his friends) in those circumstances during the fight might have used a knife while fighting with others." 103 With respect to the plea his Honour said: "[90] The [Applicant] did not give evidence at the sentence proceedings which related to the offence against Mr Kimball. I was urged however to find remorse on the basis of his plea and what was contained in the psychological report. I am not persuaded by any of these matters of any remorse which goes beyond regret for the situation he is in. He was facing a murder charge and the obvious advantages of a plea to manslaughter rather than the risks inherent in such a trial are at least as probable an explanation for this plea." 104 An issue arose to whether or not the Appellant had offered his plea to manslaughter at a sufficiently early time. He was committed on 10 February 2003. Eventually the date of 13 October 2003 was set for the trial. The Appellant was recorded by his Honour as stating that the Crown case took its final form at a late stage and that was not disputed by the Crown. However, the Crown submitted that the Appellant could have pleaded as early as the time of the committal proceedings and that the plea should be regarded as late. His Honour said: "[94] … I am disposed to agree with the Crown. I do not regard the decision in R v Cardoso [2003] NSWCCA 15 as requiring any different conclusion. That case dealt with whether any discount should be allowed, not quantum as reflected in the time of the plea. Nor do I see in the fact that the Crown changed the nature of the case it proposed to present as one of significance. It does not seem to me to bear on the utilitarian value of the plea as advanced by an offender or bear on what inferences as to willingness to assist the cause of justice should be drawn." 105 In the event his Honour said at [132] that he proposed to discount the sentence which he would otherwise have imposed for the manslaughter of Kimball by something in excess of 12½ percent. He indicated that he remained of the view that the plea was late, but gave a discount by reason of the utilitarian value. 106 With respect to the Statement of Facts about the Appellant's knowledge that his friends were armed with a knife, his Honour made the following observations about the culpability in the death: "[111] In other words, conscious deliberate participation while contemplating the use of the knife and thus contemplating the infliction of injury on other members of the community, injury which in the context of a fight must necessarily have had the potential to be fatal. [112] I would accept that the Prisoner's criminality is very probably not as bad as that of the person who actually inflicted the wound but, even making the assumption that that person's offence was only manslaughter, I am not persuaded that there is a great deal to choose between them. Those whose conduct or participation is calculated to encourage others in their criminality, particularly the criminality involved in killing or wounding with the potential for killing, are not far behind their principals."

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The Case of the Deceased Hullick 107 I have set out the principal facts in the case of Hullick above. His Honour made detailed findings of fact for purposes of exercising the sentencing discretion. It is unnecessary to set out all these findings in detail. There is however one finding which is challenged by the Appellant to which I will refer below. 108 Hulme J outlined the two bases which he had left to the jury upon which it could reach a finding of manslaughter: first, an intent to kill or do grievous bodily harm in self-defence, which was not a reasonable response; secondly, an unlawful and dangerous act. His Honour concluded that the Appellant should be sentenced on the first basis, i.e. that he had an intent to kill or do grievous bodily harm. His Honour indicated that this was the possibility urged upon him by counsel for the Appellant. 109 His Honour expressed the basis for his conclusion in this regard as arising from a number of factors: "[75] … There is my conclusion that the Prisoner took the murder weapon, presumably then loaded, to the caravan. There is the Prisoner's evidence that he aimed at the deceased and, although he also said the contrary and that he did not intend to harm the deceased, any statement the Prisoner made against his interest is more likely to be true than one in his own favour. There is the fact of 4 shots and no credible explanation for that number or the circumstances of the one which damaged the pillow. There is the fact of wounds from 2 shots and the position of the entry wound in the stomach or lower chest and the absence of powder residue near it. I do not need to rely on it for present purposes but there is also my conclusion that the wound through the stomach or lower chest was fired while the deceased was on or close to the floor. It may be noted also that the case was fought almost exclusively upon the basis of self-defence. [76] It seems to me that the Prisoner's actions which resulted in the death of the deceased may be described as follows. [77] Knowing and believing that the deceased was a man disposed to violence, thought or at least had made accusations that the Prisoner was involved in a relationship with his wife and had broken into his caravan, the Prisoner went to confront the deceased concerning these allegations. The Prisoner took with him a loaded revolver. The fact the revolver was taken indicates at the very least the Prisoner was prepared to threaten with it - the fact that it was loaded to my mind carries the implication that the Prisoner's state of mind at all relevant times that evening was of willingness to use that weapon, possibly if he thought it appropriate to do so but at least if he thought it necessary to do so in self-defence and that he considered such a need was at least a reasonable possibility. [78] Juries are commonly told that the issue of self defence should be looked at in the realisation that calm reflection cannot always be expected in a situation such as the Prisoner found himself in. In this case the Prisoner chose to put himself in a situation pregnant with the possibility of conflict taking a loaded revolver, with all its risks, with him. And he did so, with recent experience in the death of Mr Kimball of what weapons can do. [79] It is implicit in the combined effect of the jury's verdict and the conclusion at which I have arrived that the Prisoner's response, though he may have believed his act was necessary to defend himself, was not reasonable. I have wondered whether in light of the difference in the physical attributes of the deceased and the Prisoner (and to the fact that the deceased did not employ any firearm) any resort by the Prisoner to the pistol was unreasonable but in the end I have not felt able to so conclude. However, I am satisfied that, particularly in the firing of the shot which entered the deceased's stomach, that the response was not only not reasonable but a very substantial departure from what would have been reasonable and occurred in circumstances where the Prisoner could not reasonably have thought himself in danger. [80] Furthermore, the circumstances of the firing of that shot are such that I am satisfied that the Prisoner's intention at the time was to kill the deceased." 110 I should note that there appears to have been no particularisation in the Crown case of precisely what "act" was the "unlawful and dangerous act" for the purposes of the alternative route to a finding of manslaughter. No complaint is made in this respect. A number of matters could be said to have answered this description. In view of the Appellant's admission that at the end of the incident he did in fact point the gun at the deceased, albeit without intent to shoot, it would be appropriate to regard that as the relevant act. 111 The sentencing judge also set out in detail the Appellant's version of the events on the fatal night. Specifically, his Honour accepted the Appellant's evidence about the deceased's proclivity to violence. He did, however, note the significant disparity in the size of the Appellant and the deceased, the latter being much smaller. His Honour also accepted the evidence to the effect that the deceased did have intention to assault and possibly kill the Appellant. 112 His Honour reconciled the conflicting evidence about the possession of the gun used in the shooting by finding as a fact that the Appellant took the gun to the caravan on the night or early morning that the deceased died. In this respect he rejected the Appellant's evidence. His Honour accepted on the balance of probabilities that some sort of struggle occurred between the deceased and the Appellant in the caravan and that this was supported by the fact that the shots through the cupboard and the pillow were fired from different ends of the caravan. However, his Honour also found that the appearance of the caravan suggested that the struggle was of "limited proportions". His Honour found, contrary to the Appellant's version, that the rifle did not play any part in the events of the night. 113 His Honour set out in detail the Appellant's version of the events on the fatal night. His Honour concluded: "[65] The way in which the Prisoner says he was attacked also strikes me as unlikely. It is impossible to believe that the deceased, having gone to the trouble of loading the rifle would then have charged at the Prisoner with it. To do so was not to use the bullets inserted, not to use the rifle's inherent lethal capacity and capacity to control by fear but to bring the weapon into the reach of the Prisoner and the risk it would be taken from the deceased. And this in circumstances where, sitting on the bed facing the deceased and with the loaded rifle in his hands, the deceased was clearly in control of the situation if he had elected to exercise that control. The improbability becomes greater if one concludes that the deceased, over the period of the text messages or longer, had in mind to abduct or kill the Prisoner. [66] One must recognise the possibility that, whether or not the deceased previously had in mind to abduct or kill the Prisoner, the deceased may, under the influence of anger, simply have lost self control and rationality and attacked in the way the Prisoner suggests. However, to recognise that possibility is a long way from regarding at as a reasonable one and I do not. [67] Once one rejects, as I am disposed to do, the Prisoner's version of events, it is not easy to form any firm view as to the course the struggle took. The bullet holes in the pillow and the cupboard, at opposite ends of the caravan, and the presence of gunshot residue adjacent to both indicates that shots were discharged at each end of the caravan and indeed in the case of the shot at the front of the caravan, when the muzzle of the gun was something very close to or exceeding, halfway along the bed. In his evidence the Prisoner had denied that he ended up (at any stage) on the bed and the state of the bed does not strike me as disorganised enough, even after allowance is made for the replacement of a blanket on the bed, to indicate that any major struggle occurred there. [68] I am however satisfied as to how events concluded. I am satisfied that the last shot which injured the deceased was that which entered the deceased's stomach and it was fired when the deceased was in, or just possibly very close to, a prone position on the floor. [69] I should add that I recognise that this conclusion is one that the forensic and ballistic experts were not prepared to reach. I suspect the explanation for their stance was that their expertise did not justify the conclusion at which I have arrived but, be that as it may, there is nothing to suggest that they have any more experience than the rest of mankind on matters of coincidence. The reason for my conclusion lies in that area. I do not believe that coincidence can account for the proximity of the hole in the floor and the exit wound in the deceased's back. The thought that the hole in the floor could have been caused at an earlier time and the deceased simply fall so as to bring the exit wound in his back immediately adjacent to it is simply fanciful and this whether or not the deceased was rolled over by the Prisoner. [70] I should acknowledge also that my conclusion runs counter to a concession by the Crown in its opening and evidence from a number of witnesses that they could not determine the order of shots. However, the issue of how the proximity of exit wound and hole in the floor could be explained was canvassed at the trial, my conclusion is but a logical consequence of the evidence in that regard ... … [72] It is also appropriate to remember that the corresponding entry wound in the deceased's stomach and his clothing in that vicinity showed no signs of gunshot residue, indicating that the shot which caused these wounds was fired from a distance of over 70 cm away. Nothing the Accused said as to the circumstances of the fight in the caravan can account for that fact." 114 The conclusion in pars [68]-[70] of his Honour's remarks, set out in the previous paragraph are based on his Honour's earlier findings of fact where, after dealing with the two shots that did not hit the deceased, his Honour said: "[20] Another bullet entered the deceased at the top of his back between his neck and right shoulder, through one rib, through the right lung and exited through the front of his chest. Asked whether that wound would of itself cause death, Dr Sugo, a pathologist who examined the deceased, is recorded as saying, 'It will eventually in people if they don't seek medical advice may be fatal'. (sic) [21] A deal of gunshot residue from the shot causing that wound formed a semi circle below it on the deceased's clothing. The residue above the wound was substantially less, indicative of the balance having missed the clothing and being dissipated forward of the high point of the deceased's back. [22] The fourth shot entered the front of the deceased's body at the lower part of his chest or top of his abdomen passing out his back somewhat lower down and some 44mm from his midline. There was no gunshot residue on the deceased or his clothing adjacent to the entry wound of this shot. This wound would have led to death within minutes. [23] The gunshot residue adjacent to the holes in the cupboard, pillow and top of the deceased's back indicates that the muzzle of the gun from which those shots were fired was, at the time of firing, between 10 and 70 cm away. The absence of residue in the vicinity of what I may call the stomach wound indicates that at the time the shot which caused it was fired, the muzzle of the gun was in excess of 70 cm away. [24] Close to the exit wound of this last mentioned bullet when the deceased was found was a bullet hole in the floor of the caravan although the bullet which passed through that hole was not recovered. Because he did not have a second hole in or mark on any fixed object other than the floor, Mr Van der Walt, a ballistics expert called by the Crown, said that he could not work out the correct trajectory of that bullet. However he did say that 'the hole in the caravan floor was basically in line with the exit wound in the deceased's lower back'. [25] Mr Van der Walt also said that that hole in the floor could have resulted from the shot which entered the deceased's upper back or in a number of other possible ways. [26] Dr Duflou, a forensic pathologist called on behalf of the Prisoner was also questioned about the closeness of the exit wound in the deceased's back and the hole in the caravan floor. He also asserted that there were possible explanations for this other than that the deceased was shot while lying on his back on the floor. However, and although his answers are not as clearly expressed as they might be, it seems to me that he accepted that for the hole in the floor to have been caused except in the way the Crown suggested would have involved, depending which answer one accepts, a coincidence or 'a pretty big coincidence'. The Crown's suggestion was that at the time the hole was made, the deceased's back was on or very close to the floor and that it was immediately before passing through the floor that the bullet had exited the deceased's back." 115 The Appellant submits that, in view of the evidence of the expert witness called by the Crown, to which his Honour referred in the course of his remarks, his Honour's findings about what he called "the fourth shot", could not be reached beyond reasonable doubt. Particular reliance was placed on the expert's evidence that he could not give evidence as to the sequence of the shots.

[26]

Discount for the Plea 116 I have set out Ground 6 above. His Honour indicated that he would give a discount of something of the order of 12½ percent for the utilitarian value of each plea. This was at the lower end of the range which the guideline judgment of this Court suggests is appropriate. The decision is, however, a discretionary one for the trial judge. All of the well known limitations upon this Court interfering with a discretionary judgment apply. 117 In the exercise of this discretion a significant, but not sole, consideration is when the plea was given. This will determine in large measure the extent of the utilitarian value which it is in the public interest to encourage by transparent sentencing practice. 118 With respect to the manslaughter of Kimball, his Honour made findings in this regard, which I have quoted above. The plea was only offered after the Appellant had been arraigned. This is a late plea as his Honour correctly found. 119 It was suggested that at some unspecified time the Crown case had changed from an allegation that the Appellant had actually wielded the knife to the allegation of accessorial complicity. There is no suggestion that soon after this change occurred the Appellant offered to plead. There was no suggestion that the Appellant had offered to plead to manslaughter on the basis of his version of the facts at an early stage, such as at the committal. 120 The discount his Honour gave was well within the exercise of his discretion. 121 As to the manslaughter of Hullick, the Court was informed that an offer to plead to manslaughter was made about ten days prior to the trial. The Crown's rejection of the offer was perfectly understandable. The case for murder was strong. Nevertheless, it is relevant to take into account an offer of a plea of guilty for the crime for which a person is ultimately convicted. (See R v Oinonen [1999] NSWCCA 310 at [15].) In the present case the offer to plead to manslaughter about ten days prior to trial is a late offer from the perspective of its utilitarian value. His Honour's discount of some 12½ percent was well within the exercise of his discretion.

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The Severity Appeal 122 The Appellant submits that each sentence is manifestly excessive. Although no particular error was separately relied upon, other than in ground 6 as discussed, his Honour's remarks on sentence were criticised in certain respects. 123 Counsel for the Appellant suggested that in each case his Honour was influenced by what counsel described as: "[T]he unwarranted characterisation of the Appellant as a 'recidivist' and his Honour's finding that the ordinary principles of sentencing, especially rehabilitation did not apply and that 'longer' sentences were required for such offenders." 124 The passage in his Honour's remarks on sentence that is challenged in this respect is the following: "[121] Nor in any consideration of the prisoner's prospects of rehabilitation can one ignore his choice to possess over a significant period the weapon with which Mr Hullick was killed. The prisoner's past experience in the law must have made him very familiar with the way such possession would be viewed. Similar observations may be made as to the prisoner's dealing with marijuana, about which he gave evidence. No other conclusion is open but that the prisoner refuses to learn or to accept the standards of decent society. [122] The Prisoner is a recidivist. One could hope that at some stage he will be rehabilitated, but given his past, any rational judgment is that the prospects of this occurring are remote and, although nothing is impossible and his increasing age might help, virtually nil. I record that in arriving at this conclusion I have not relied on the opinion expressed in the report from the Victorian Department of Justice. However, my conclusion obviously derives support from that report. [123] In these circumstances, considerations of personal deterrence and protection of society require a longer rather than a shorter sentence, not as punishing him again or further for his past but as bearing on the proper sentence for the offences before me." 125 As the full passage makes clear, these observations were made in the context of his Honour dealing with sentencing for the death of Hullick. However, his Honour took into account the subjective circumstances and personal record of the Appellant with respect to both offences. He had also described the prospects of rehabilitation as "bleak". 126 In both cases the Appellant was on bail at the time of the offence. His record is a long one covering a wide range of offences, including drug dealing, burglary, armed robbery and assault. His Honour's characterisation of the Appellant as a "recidivist" was entirely appropriate. Considerations of personal deterrence were entitled to considerable weight. As his Honour concluded, there was no evidence of any character capable of suggesting that there was any real prospect of rehabilitation. I can detect no error in anything his Honour said in this regard. 127 With respect to the submission that the sentence was manifestly excessive I deal first with the case of Hullick. 128 As noted above, his Honour concluded, as he was entitled to do for purposes of the sentencing exercise, that one of the two alternative routes to a manslaughter verdict which was left to the jury was established beyond reasonable doubt. His Honour found that the Appellant intended to kill or inflict grievous bodily harm but that, consistently with the jury's verdict, this occurred in the context of acting in self-defence, albeit excessive. 129 His Honour was, in my opinion, entitled to make this finding. As his Honour emphasised, the Appellant himself had admitted that he pointed the gun in the direction of the deceased. His Honour rejected the Appellant's suggestion that he had no particular intent in doing so. His Honour was entitled to accept the former part of the Appellant's evidence and reject the latter. The Appellant had retrieved the weapon the night before. He attended at the caravan for the specific purpose of sorting out a dispute with the deceased and, perhaps most significantly, the state of the caravan indicated that the struggle was of very limited proportions and the shot was administered from a distance in excess of 70 centimetres. Furthermore, his Honour was entitled to reject the Appellant's evidence that he simply could not remember shooting the deceased twice. The finding of intent to kill was open to his Honour and, indeed, except in one respect, was not challenged on appeal. His Honour's statement that this was the alternative urged on him by counsel for the Appellant was not questioned. 130 As noted above, the Appellant did challenge his Honour's finding as to the sequence of the shots and particularly that the "fourth shot" to the abdomen, which was discharged at distance, and was discharged into the body of the deceased when he was prone on the floor of the caravan. The Court raised with Crown the possibility that this challenged finding of fact, when combined with his Honour's conclusion about an intent to kill, was inconsistent with the jury's decision to acquit of murder. The scenario of a person standing over the prone body of another, at a distance, with an intent to kill but still acting in self-defence appeared to me to raise a very real possibility of inconsistency. Counsel for the Appellant adopted this characterisation of his Honour's remarks on sentence. 131 Counsel for the Crown submitted that no inconsistency could be said to arise if the jury has acted on a particular basis which his Honour set out for the jury in his written directions. With respect to the alternative of an intention to kill or inflict grievous bodily harm, the Crown had to establish beyond reasonable doubt the negative proposition that at the time of the shooting the Appellant "did not believe his act was necessary to defend himself". It was, accordingly, open to the jury to conclude that the Crown had not discharged its onus of proof on the issue of the Appellant's belief. On that basis, no inconsistency would arise with his Honour's finding of fact about the sequence of the shots. 132 The Crown's submission has force, although I still believe there may be some tension, if not an inconsistency, between his Honour's finding in this respect and the jury verdict. Nevertheless, I would not conclude that his Honour committed an error which would of itself justify this Court's intervention in this regard. As quoted above, in [75] of his remarks his Honour referred to the nature of the two wounds to the body of the deceased, and in particular to the absence of powder residue near the stomach wound, as indicating that the shot was fired from a distance. In this regard his Honour said "I do not need to rely on it for present purposes …". Furthermore, it does not appear from his Honour's remarks on sentence later in the judgment that this finding was given weight in his Honour's assessment of the objective gravity of the offence. 133 As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). 134 It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. 135 For example where diminished responsibility is relied upon, the extent to which culpability is 'diminished' can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as "child-killing by a parent or carer", it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna (2003) 149 A Crim R 505). 136 The test established by s418 of the Crimes Act is whether "the conduct is a reasonable response in the circumstances as he or she perceives them". Such a test must depend on the characteristics and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another. 137 In the circumstances of the present case, the objective gravity was of a high order. His Honour's finding that the Appellant had an intention to kill or inflict grievous bodily harm itself indicated a high level of moral culpability. The weight to be given to the particular mitigating circumstances of this case, namely, acting in self-defence, was not of a particularly high order. His Honour rejected, as he was entitled to do, and for good reason, the Appellant's case that the deceased had instituted the conflict by deploying the rifle. His Honour was also entitled to accept the proposition that the firing of the first two shots at opposite ends of the caravan occurred when the deceased had the gun in the course of a struggle. Nevertheless, the struggle, as the state of the caravan indicated, was of limited proportions. The Appellant did fire two shots and on each occasion had to cock the hammer before pulling the trigger. Furthermore, one of the shots, and the one that was likely to have been the fatal shot in the circumstances, was administered from distance. Taken together with the subjective circumstances set out by his Honour, particularly the fact that the prospects of rehabilitation were very low, if not non-existent, I can see no error in the sentence his Honour imposed. 138 The sentence appeal in the case of the death of Hullick should be rejected. 139 I have set out above his Honour's relevant remarks on sentence with respect to the manslaughter of Kimball. I should bear in mind the observations I have made about the lack of utility of comparing sentences in manslaughter of different cases. Nevertheless, I must say it is surprising that the same head sentence was imposed in the cases of Kimball and Hullick and that, in fact, the non-parole period in the case of Kimball was one year longer. The moral culpability of the Appellant in the case of the death of Hullick appears to me to be of a significantly higher order of magnitude than in the case of Kimball. 140 His Honour clearly took a different view and, as quoted above, emphasised the significance of general deterrence and personal deterrence in the context of persons found guilty on a joint enterprise or accessorial basis, in a context where knives are frequently used in the course of fights with serious effects. 141 I accept that the permissible sentencing range for manslaughter must be regarded as particularly wide. Nevertheless, I have come to the conclusion that, in all of the circumstances, the sentence his Honour imposed on this occasion was manifestly excessive. The facts agreed before his Honour stated that the Appellant knew that one of his friends "may have been armed with a knife" and that he appreciated that there were "risks" that one of his friends "might have used a knife while fighting with others". These agreed facts indicate a level of possibility, perhaps even a probability, with respect to both the possession of the knife and its use. There is nothing, however, to indicate precisely how probable was the Appellant's reason to expect either of these matters. In particular, it is not clear how certain he was that one of his friends had a knife at the time. 142 It is of great significance, as his Honour recognised, that the Appellant did not himself wield the knife. Nor was he in the immediate vicinity of the fight occurring between his friends and the deceased. 143 The Appellant's subjective case was weak, indeed virtually non-existent. Considerations of personal deterrence were entitled to considerable weight, particularly so in a context where the prospects of rehabilitation did not suggest any mitigating consideration in that regard. Nevertheless, I am of the view that his Honour's sentence on this case was manifestly excessive. 144 I would allow the appeal and impose a head sentence of nine years with a non-parole period of six years and nine months. 145 The sentence is still a heavy one when compared with the pattern of sentencing for manslaughter. I give considerable weight to the need for general deterrence of persons with a proclivity to engage in brawls carrying knives. Personal deterrence is also entitled to significant weight. I agree with Hulme J that the prospects of rehabilitation are bleak. 146 His Honour partially cumulated the sentence, by having the sentence in the Hullick matter commence seven years after the commencement of the sentence in Kimball, with an overlap of two years. Considerations of totality indicate to me that his Honour's period of an overlap of about two years remains correct. Indeed that was not challenged. 147 In the event there will be an effective non-parole period of 12 years and nine months instead of 15 years and a head sentence of 16 years and nine months instead of 19 years.

[33]

152 These grounds raise the question as to whether there was a material irregularity concerning the jury's conduct (and/or that of a particular juror) or in the jury procedures. 153 In determining grounds 1 and 2, the factual question was whether the two publications in the possession of a juror had any potential to prejudice the jury's considerations. In other words, the question essentially was whether the material contained any matter which went to the guilt or innocence of the appellant: Regina v. Minarowska (1995) 83 A. Crim. R. 78 per Gleeson, CJ. at 88.9. 154 The accepted test for disturbing a verdict in cases such as the present was enunciated in Regina v. Marsland (Court of Criminal Appeal, unreported 17 July 1991) and Regina v. Rudkowsky (Court of Criminal Appeal, unreported 15 December 1992); see also Regina v. Lansdell (Court of Criminal Appeal, unreported 22 May 1995) and Regina v. K (2003) 59 NSWLR 431, 446. 155 In Marsland (supra), Gleeson, CJ. (with whom Lee, CJ. at CL. and Hunt, J. agreed) expressed the test in the following passage (at 14):- "The tender of the document with the name (name deleted) on it was an irregularity and the question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred …." 156 In the application of the test, the nature of the publications is relevant, as is the strength of the Crown case. An appeal will be unlikely to succeed on the point in question if the Court is satisfied that, even if the irregularity had not occurred, the verdict would have been the same where the Crown is able to establish that it had an overwhelmingly strong case. 157 Even in cases where it can be said that a document is material and has the potential for prejudice, such prejudice may be overcome by an express direction: see Regina v. K (supra) at 447. In particular, a clear and unambiguous direction may be sufficient to overcome any potential prejudice: see discussion in K (supra) at 448. 158 In assessing the nature of an irregularity arising from a juror's possession of what I might refer to as unauthorised material, the following factual matters will usually be relevant:-

[34]

(a) the nature and content of the material; (b) in particular, whether the material went to the guilt or innocence of the accused or, expressed somewhat differently, whether the material had the tendency to influence the jury in its consideration of relevant issues in the trial; (c) where the material had a potential for prejudice, whether the potential was real or remote or alternatively whether any identified real prejudice was slight or significant: Minarowska (supra) per Glesson, CJ. at 87.8. 159 The fundamental question for the Court on the point in question is whether there has been a miscarriage of justice: Regina v. Skaf [2004] 60 NSWLR 86, 98. 160 In a case where an irregularity comes to the attention of the trial judge, it is for the trial judge to make an assessment as to how best to deal with it. The question on appeal is whether the judge was mistaken or otherwise a miscarriage of justice has resulted: see Regina v. Domican (No. 3) (1990) 46 A. Crim. R. 428 per Kirby, ACJ. at 448. 161 In the present case, the advertising brochure does not contain material capable of giving rise to a material irregularity and no specific submission has been advanced on behalf of the appellant in respect of it. So far as the book entitled Guns & Gunsmiths is concerned, it is divided into to parts. Part I deals with the historical development of small arms to the middle of the 19th century. Part 2 is concerned with the historical technical development of small arms including revolvers. 162 The incident concerning the publications occurred on Friday 27 February 2004, which was the sixth day of evidence in the trial. On that day, after coming onto the bench, the trial judge informed counsel that the Sheriffs Officer had in turn informed him that one of the jurors that morning had two publications, the book and the brochure. 163 Importantly, as the Crown's written submissions observe (paragraph 26), the book Guns & Gunsmiths makes no reference to the type of firearm said to have been used in the shooting on Friday 3 May 2002. There is one reference to a .357 weapon (page 179) but the reference there does not contain any information which was relevant to any issue at the trial. The revolver used to kill the deceased is said to have been a Ruger single shot weapon. The expert in the Crown case, Mr. Van Der Walt, gave evidence that the weapon in question was not capable of accidental discharge because it had a safety mechanism or device. It required both cocking the hammer and pulling the trigger before a single shot could be fired from it. The Crown's submission correctly observes that any information about the revolver found in the book was ultimately, in any event, given at the trial by Mr. Van Der Walt. 164 Counsel for the accused applied for the jury to be discharged, raising two concerns. The first was that the material might have contained information that might ultimately bear upon a potential issue as to the circumstances in which a revolver might fire (appellant's submissions, p.4). The second, was an inference which was available from the juror's conduct that he was "flouting your Honour's direction" and was willing to "go behind the evidence in this trial". Counsel added that it was "… inconceivable that he would not share his knowledge or the knowledge he had acquired with the other jurors". 165 It is to be observed that counsel did not assert that there was in fact any material capable of giving rise to a material irregularity. When the matter was further dealt with on 1 March 2004, counsel for the appellant is said to have conceded that, in his view, the book itself "… doesn't much touch on any vital issues that I can see, so much of this that I can (sic) understanding" (see applicant's written submissions, p.5). 166 No further application was made about the matter. Whilst the submissions for the applicant contend that "the damage had already been done", there is nothing demonstrated in the applicant's written submissions to substantiate that the publications, in any respect, contained material capable of potentially prejudicing a fair trial. 167 I accordingly agree that these grounds of appeal should be dismissed.

[35]

Ground 4: Directions concerning the law of self-defence 168 The law in relation to the application of the defence of self-defence in New South Wales is governed by Part 11 of the Crimes Act 1900 (NSW). The relevant provision is in the following terms:- " s.418: Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes that the conduct is necessary:- (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person; or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 419: Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. 421: Self-defence - excessive force that inflicts death (1) This section applies if:- (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defence himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter." 169 The questions now to be considered by the jury when self-defence is raised are:-

[41]

(c) The two separate "aspects" or elements of the law of self-defence with the first reference to the written directions on self-defence being made at this point (t.14.8). Emphasis was given by the trial judge that if there was no belief in terms of the first of the two elements in the defence of self-defence, then it was not murder. 174 In relation to the specific directions, the trial judge identified the elements of manslaughter in terms of the matters set out in the written directions, in terms of the specific matters set out in (A) or (B) of MFI 13. 175 In relation to the elements or aspects identified in (A) and in (B) on pp.2-3 of the written directions (MFI 13), the directions given were in accordance with law and accurate in every respect. 176 In those circumstances, there being no specific identified error in either the first part or the second part of the summing up to which I have referred, the remaining question is whether or not there is any foundation to the complaint that an alternative approach could and should have been adopted in explaining the offences of murder and manslaughter and self-defence by reason of the confusion which it is claimed arose from the approach taken by the trial judge. 177 The trial judge in the circumstances of the trial in question, was not limited or bound in the manner or form in which he provided directions to the jury on the matters in question: Regina v. Zoef [2005] NSWCCA 268 at [93] per McColl, JA. (Barr and Johnson, JJ. agreeing). In circumstances where it is clear that there is no identifiable error in the directions, an appellant has a substantial task in satisfying this Court on appeal that the form or presentation of the summing up was productive of confusion. I am not satisfied that there was confusion as claimed or at all and I am certainly not satisfied that the approach taken by the trial judge in the summing up has resulted in a miscarriage of justice. I am satisfied, as I have indicated, that his Honour's directions were good in law. 178 In the circumstances in which no objection was taken to the trial judge's directions, this is not an appropriate case in which leave to argue this ground of appeal should be given. As has been stated, Rule 4 recognises the commonsense proposition that the fact that no objection has been taken to the manner in which the trial judge summed up to a jury is "cogent evidence … in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done": Regina v. Tripodina & Morabito (1998) 35 A. Crim. R. 183 at 191 per Yeldham, J. (with whom Carruthers and McInerney, JJ. agreed). See also Zoef (supra) at [91]. 179 I accordingly am also of the opinion that this ground of appeal should be dismissed.

[42]

The severity appeal 180 As discussed by the Chief Justice, the sentence imposed on the appellant in respect of the manslaughter of Mr. Kimball was a period of imprisonment of 12 years, such term to include a non-parole period of 9 years, both such periods to commence on 29 May 2002. 181 The transcript in relation to the proceedings on sentence on 3 December 2003 (p.3) confirms that the Crown accepted the appellant's plea of guilty to manslaughter on the basis of the concept of extended joint criminal enterprise. 182 The evidence concerning the commission of the offence was contained in a Statement of Facts, Exhibit A, which evidence is summarised in paragraphs [4] to [10] of the remarks on sentence. The relevant facts are recited in paragraph [101] of the judgment of the Chief Justice. There were fights amongst groups of patrons which included friends of the appellant and of the deceased. In accordance with paragraph [8] of the Statement of Facts, the appellant was engaged in a particular fight somewhat to the left of the particular area of fighting involving the deceased. Whilst the appellant was engaged in that particular fight, the deceased was kicked by Messrs. Hodge, Ball and Dib. According to the Statement of Facts, one of the appellant's friends stabbed the deceased once, fatally wounding him. 183 The basis of the Crown's acceptance of the plea of guilty (that is, the basis for the appellant's criminal liability for manslaughter - extended joint criminal enterprise) is, to a point, material to the term of imprisonment for which he was sentenced. 184 The Statement of Facts recounted that the appellant was aware that both Ball and Hodge were well effected by alcohol, had used cannabis and may have been armed with a knife. When he joined in the fight on the night in question, he appreciated there was a risk that either Ball or Hodge in those circumstances during the fight might have used a knife while fighting with others (paragraph [10] of the remarks on sentence). 185 On the information in the statement of facts, the extended joint criminal enterprise appears to have been coincidental with the appellant joining with his friends in the fight ("… a spontaneous type of joint criminal enterprise …" as it was described by Hunt, CJ. at CL. in Regina v. Tangye (1997) 92 A. Crim. R. 545a at 557). 186 It is well accepted that an understanding or arrangement to commit a crime need not be express and may be inferred from all the circumstances: McAuliffe v. The Queen (1995) 183 CLR 108, 114. It is possible that the agreement to participate in a joint criminal enterprise may be coincidental with a participant joining in with friends in a fight: see discussion in Tangye (supra). In that case, Hunt, CJ. at CL. observed that the circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. On the agreed facts, that is essentially what was said to have occurred in the case of the manslaughter of Mr. Kimball. 187 Once the basis for the appellant's criminal liability has been identified, one may endeavour to compare the sentence imposed upon him against any available sentencing pattern that may be derived from or based upon sentences imposed in relevant cases. However, as discussed below, there is a limited number of like cases from which guidance may be obtained. 188 In seeking to construct a relevant sentencing pattern, one may take cases involving participation in joint criminal enterprises in which a weapon is introduced and fatally used by a co-offender. There are only a few such cases. There may be added to the analysis other cases of voluntary manslaughter involving what may be termed "pub brawl" scenarios involving intoxicated persons and the use of weapons or other objects in excessive self-defence. The latter type of cases are of indirect relevance as they will usually not involve a joint criminal enterprise element. 189 Set out below is a sentencing pattern analysis which provides something of a check or range within which to evaluate the sentence of 12 years with a non-parole period of 9 years imposed on the appellant in relation to the manslaughter of Mr. Kimball. 190 Before setting out the analysis, I record the difficulty of establishing a sentencing pattern in cases of manslaughter as has long been recognised. A number of propositions in this respect may be derived from other judgments of this Court:-

[43]

• The peculiar difficulty in the case of manslaughter is to discern a range of commonly imposed sentences. Sentences for manslaughter vary greatly because of great variations in the circumstances of individual instances of the offence. There have been many statements made by this court to that effect: Kirby, P., (Grove and Newman, JJ. agreeing) said in Regina v. Troja (CCA, unreported 16 July 1991 at p.3):- "This aspect of sentencing law, as it applies to a person convicted of manslaughter, presents a particular difficulty to an appellate court where it is invited to review the sentence imposed by the trial judge in the exercise of that judge's discretion. In the vast range of circumstances giving rise to such a sentence, it is difficult to discern any clear pattern or coherent standard. As Wood, J. himself observed, the sentence which is appropriate to each case of manslaughter depends ultimately upon its own special circumstances." • Wood, J. (Hunt, CJ. at CL. and Sharpe, J. agreeing) said in Regina v. Morabito (1992) 62 A. Crim. R. 82 at 86:- "That kind of analysis can be helpful, but the circumstances involving manslaughter being so various, it would be erroneous to place too much store on any sentencing survey, let alone to look for a median or average outcome." • In Regina v. Maguire (CCA, unreported 060609/94), James, J. (Grove and Hulme, JJ. agreeing) stated:- "I agree that if a comparison is to be made between a sentence for manslaughter and other sentences for manslaughter, it will usually be more fruitful to compare the case under consideration with other cases of manslaughter of a similar sort. For example, if the case under consideration is a case of manslaughter by reason of provocation, it will usually be more useful if any comparison is a comparison with other cases of manslaughter by reason of provocation. This was the approach adopted by the Chief Judge at Common Law at first instance in Regina v. Alexander . In some cases of voluntary manslaughter where, apart from the partial defence of provocation or diminished responsibility, the prisoner would have been guilty of murder but the Crown has not succeeded in disproving either provocation or diminished responsibility, a heavy sentence will be appropriate. But there will also be cases of involuntary manslaughter, that is of cases of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence, where a heavy sentence will also be appropriate. • In Regina v. Woodland [2001] NSWSC 416, Wood, CJ. at CL. (at [27] to [30]) stated:- "27. The offence of manslaughter is one for which the maximum available sentence is one of imprisonment for 25 years. The offence involves the felonious taking of human life, and for that reason it has been recognised as a most serious crime: Hill (1981) 3 A. Crim. R. 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have conduct involved in its taking denounced by a sentence appropriate to the circumstances of the case: Macdonald (NSWCCA, unreported 12 December 1995). It is, however, an offence, which involves an excessively wide variety of circumstances, calling for a range of penal and, sometimes, non-penal outcomes, with the consequence that it is difficult to obtain much by way of assistance from reference to the Judicial Commission's statistics or from other cases: Elliott (NSWCCA, unreported 14 February 1991, per Newman, J.) and Green [1999] NSWCCA 97."

[44]

Schedule of manslaughter sentences Case Facts Factors in sentencing Sentence Factors favouring leniency:- - the offence was out of character for the offender - the offender had good prospects of rehabilitation - the deceased had acted very aggressively towards the appellant and the appellant was in a very fearful position Regina v. Cioban [2003] NSWCCA 304 The appellant and a friend had been drinking at the Hampton Hotel. The deceased was also drinking there with a group of four or five Fijians. The appellant and his friend were asked to leave the hotel. A fight started outside in the street between the appellant, his friend and the group of Fijians. The appellant and his friend were punched and kicked. The appellant produced a gun and fired a shot at the deceased, missing the deceased. The deceased chased the appellant to the entrance of a backpacker hostel, where they struggled and during the course of the struggle the appellant fired the gun inflicting fatal injury to the deceased. The appellant was found guilty of manslaughter on the basis of excessive self-defence. - no criminal history A term of 8 years was imposed at trial. On appeal the Court of Criminal Appeal imposed a new sentence of 6 ½ years with a non-parole period of 4 years. - no pre planning

[46]

Regina v. O'Donnell [2002] SASC 183 A brawl erupted at a pool hall. The deceased struck a man with a Club lock. The appellant observed this attack. This provoked a reaction from the appellant. The appellant approached the deceased and stabbed him 3 times in the back, fatally wounding him. The appellant raised the defence of excessive self-defence. This defence was rejected. The appellant was found guilty of manslaughter. This was on the basis that due to his intoxication he may not have formed the specific intention to cause serious bodily harm. Factors favouring leniency:- 12 years with a non-parole period of 8 years - offender was aged only 18 years - of previous good character - no relevant prior convictions Factors favouring leniency:- - appellant was of good character - unlikely to offend again Regina v. Azar (1991) 56 A Crim R 414 A brawl took place between a number of persons. During the brawl the deceased punched the appellant in the face causing the appellant to fall to the ground. The appellant went into a nearby house and obtained a knife. The deceased was stabbed by the appellant with the knife. The jury rejected the appellant's defence of self-defence. - expressed contrition 6 years with a non-parole period of 4 ½ years - no relevant criminal history

[47]

Factors favouring stringency:- - went home and retrieved a weapon and returned to stab the deceased Aggravating features:- - the applicant was the original aggressor Regina v. Maguire NSWCCA 30/8/1995 A dispute arose at Doyalson RSL Club between the applicant and a group of guests at the Club, including the deceased. The applicant was considerably affected by alcohol. The applicant punched the deceased in the face. The deceased then charged at the applicant. The fight continued in the men's toilets between the applicant, the deceased and two other men. The applicant was attacked and beaten by two men one of whom was the deceased. The applicant went home to pick up his rifle and he returned to the club with it. The applicant then drove his motor vehicle at the deceased, hitting him. The two men then fought on the ground. The applicant grabbed his rifle in an attempt to scare the deceased but the rifle accidentally discharged, killing the deceased. The applicant was found guilty of manslaughter on the basis of causing the death of the victim by an unlawful and dangerous act. - he returned home to obtain the gun 10 years imprisonment - minimum term of 8 years and an additional term of 2 years - he drove his vehicle at the victim - applicant had a criminal history including offences of stealing and breaking and entering but had no convictions for crimes of violence Regina v. Cardoso [2003] NSWCCA 15 A fight broke out between a group of people. The applicant obtained a knife from a person at the scene of the fight and attacked the deceased with it. The jury rejected the argument that the applicant used the knife in self-defence. The applicant was found guilty of manslaughter on the basis that he had the intention to inflict grievous bodily harm and was acting under provocation. - applicant had no prior convictions Applicant originally sentenced to imprisonment for 8 years with a non-parole period of 5 years. Court of Criminal Appeal imposed a sentence of 7 years imprisonment with a non-parole period of 4 years. - applicant offered to plead guilty - aged 21 years when sentenced - no criminal history Sentenced to imprisonment for 7 ½ years for manslaughter with a non-parole period of 4 years. Regina v. Hung Duc Dang [2001] NSWCCA 321 The principal and appellant embarked on a joint criminal enterprise to rob someone. The appellant was found guilty of manslaughter by reason of the principles applicable to extended criminal enterprise (common purpose). Both carried knives. In attempting to flee the victim tried to detain the principal. The principal stabbed the victim with a knife, killing him. The appellant knew that the principal had a knife. - not the person who was directly responsible for inflicting the fatal injuries - need for considerable element of general and personal deterrence Special circumstances - as a result a non-parole period set equivalent to 65% of the total term. Appeal against sentence dismissed. - sentence for manslaughter cumulative upon 2 other sentences which were for fixed terms-hence were not themselves subject to any possibility of release upon parole - Clifford was 19 years at the time of the offence. He was convicted of manslaughter at trial and of maliciously inflicting grievous bodily harm - at the time of the offences Clifford was on a 12 month s.10 bond for malicious damage and assault Regina v. Clifford [2005] NSWCCA 360 The offender (Clifford) and co-offender (AB) had consumed alcohol and marijuana with friends in a unit in Macksville. Clifford produced a firearm and there was talk amongst the group of using it against either a vehicle or persons. Later in the street Clifford and AB passed a group of 4 men (which included the deceased). Clifford began pushing 1 of the group. A fight broke out and Clifford called for assistance. AB discharged the shotgun once striking one of the other group (Ward) and then discharged the second barrel striking Mason (the deceased). The jury were directed on the elements of manslaughter by an unlawful and dangerous act. On appeal it was held by McClellan CJ at CL at [108], Grove and Hislop J agreeing, that Clifford called AB to his aid in the melee in circumstances where he knew AB was carrying a gun which might be discharged. This fact carried with it a very significant degree of criminality in relation to both charges. - family background of violence and abuse Clifford - Count 1 - manslaughter - imprisonment for 6 years with a non-parole period of 3 years. On appeal, it was held that an appropriate sentence was 9 years, but having regard to principles applicable to a successful Crown appeal, the sentence imposed was 7 years and 6 months. Special circumstances finding remained. Non-parole period of 4 years 6 months. - addicted to cannabis - since being in custody Clifford has been diagnosed with a mental illness (probably schizophrenia or psychotic disorder) - reasonable prospects of rehabilitation - unlikely to re-offend Regina v. Muddle [2004] NSWSC 403 The deceased had been drinking at a local hotel with a friend. They then went to the offender's home. The offender, the deceased and various others drank beer, smoked marijuana and talked. At 11:00 pm the offender punched the deceased and they started to fight in the house. They were both intoxicated. The fighting then moved to the front yard. The offender returned to the house and the deceased remained outside. The deceased subsequently returned to the house. The offender stabbed the deceased, fatally wounding him. The offender was found guilty of manslaughter on the basis of excessive self-defence. - use of a weapon - although this was of somewhat less prominence as the weapon was a household implement used in self defence 6 years imprisonment with a non-parole period of 3 years - the offender has not previously served a period of imprisonment and would need assistance from the Probation and Parole Service to make a satisfactory return to life in the community - the offender had committed other previous offences but the criminal record was not regarded as an aggravating factor

REGINA v Warren Alan FORBES

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