Applicant : Unrepresented Criminal Appellants' Scheme

James v The Queen [2000] WASCA 100

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Mraz v The Queen [No 2] [1956] HCA 54; (1956) 96 CLR 62

R v Privitera [1966] WAR 12

R v Schmahl [1965] VicRp 95; [1965] VR 745

Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346

Whittingham v The Queen (1988) 49 SASR 67

1 KENNEDY J: The applicant was charged upon an indictment presented in the Supreme Court alleging that on 6 September 1996, at Bayswater, he attempted unlawfully to kill Lee Vaughan Watson. In the alternative, he was charged that, on the same date and at the same place, with intent to prevent his lawful arrest, he unlawfully did grievous bodily harm to Lee Vaughan Watson. He pleaded not guilty to each count. The jury found him not guilty on the first count, but guilty on the alternative count. He now seeks leave to appeal against his conviction.

2 The applicant also sought an extension of time for leave to appeal against his sentence of 8 years' imprisonment, but on 29 January 2001 he gave notice to the Registrar of his abandonment of that appeal. Pursuant to O IX r 13 of the Criminal Practice Rules 1914 which were then in force, the applicant's appeal was deemed to have been dismissed by the Court of Criminal Appeal.

3 The applicant's proposed grounds of appeal against his conviction, as amended at the commencement of the hearing, are as follows:

1. The learned trial Judge erred in inviting the jury to speculate as to

- the reasons behind the accused's possession of firearms and ammunition, and

- the reasons behind the accused's actions after the shooting, and

- the reason for the accused shooting the police officer.

2. The learned trial Judge erred in failing to direct the jury on 12 August 1998 as to the reliability of the witnesses Thompson and Watson.

3. The learned trial Judge erred in failing to adequately put the defence case to the jury in his directions to them as to the facts.

In the alternative, the learned trial Judge erred in failing to hold an even balance between the prosecution and defence cases for the above reason.

4. The learned trial Judge erred in that he failed to correctly direct the jury as to the law relating to self-defence.

5. Having regard to the evidence the jury verdict was unreasonable and cannot be supported.

6. In light of the matters raised in this minute the jury's verdict should be quashed or in the alternative a judgment of acquittal entered.

4 The Crown case against the applicant was that, on the afternoon of 6 September 1996, the applicant shot a traffic officer, Constable L V Watson. Constable Watson had pulled over the applicant on Guildford Road, Bayswater, near the Tonkin Highway overpass, because he was seen to be driving his car at an excessive speed. Constable Watson alighted from the police car and spoke to the applicant through the window of his car. He asked the applicant to get out of his car, which he did. While the two men were standing approximately a metre apart, a discussion ensued, in the course of which Constable Watson noticed what he thought were unusual rectangular objects in each of the front pockets of the applicant's jeans. He requested the applicant to empty his pockets. The applicant complied to the extent of taking some coins from his right-hand pocket. Constable Watson then asked the applicant to empty the other pocket. He saw the magazine of a gun in that pocket. He next saw a "blurred movement" in the applicant's right hand, he heard a bang and he then felt a pain in his groin.

5 The Crown contended that the applicant had a pistol concealed at the back of his jeans, and that it was with that pistol, without any warning, that the applicant had shot Constable Watson while he was questioning the applicant in a routine manner. The applicant attempted to fire another shot at the Constable, but his pistol jammed. He advanced with his pistol pointed at Constable Watson, who staggered back a short distance before dropping to his knees. He regained his feet, took his police revolver out of its holster and fired all six bullets in his revolver at close range in a downward direction towards the applicant. One of the bullets passed through the applicant's left leg, two other bullets travelled through the applicant's body in a downward direction, while a fourth glanced off the applicant's right arm, leaving burn marks.

6 Constable Watson stumbled back to his car to seek assistance. The applicant, at this stage, ran across the road, but he then turned back and climbed into his car. He subsequently left the car, carrying a mobile telephone, before proceeding to lie down on the ground close by the car which Constable Watson had been driving.

7 The case put forward by the applicant at the trial was very different from that of the Crown. He said that, after he had been pulled over by Constable Watson, the two men were standing outside their vehicles facing each other in close proximity. At this time the applicant had a hand gun with a full magazine tucked down the back of his jeans, with his shirt hanging over it. In the two front pockets of his jeans he had a full pistol magazine and a magazine which was almost full. Constable Watson asked the applicant to empty his pockets. The applicant took some coins out of his right pocket, but he did not take out the magazine. He then realised that the magazine in his left pocket could be seen, so he removed it and was going to give it to Constable Watson when he saw a sudden movement from the constable's left side. He saw Constable Watson's revolver, he heard a loud bang and he then felt a pain in his leg. He went down on his left knee and reached for his own gun in the back of his jeans. He pulled the slide back on his pistol and then heard another bang. He felt a pain in his stomach. The applicant then fired his pistol at Constable Watson, who was still standing at this time. He could not remember firing the gun and he could not remember if his gun had jammed. The applicant dropped his gun and ran to some bushes on the other side of the road. He then turned around and came back to his car, but he could not drive it away because his path had been blocked. He took his mobile telephone, left the car and made a telephone call to his de facto wife. He then sat down on the ground and waited.

8 The applicant claimed that for two months prior to the shooting he had been worried about being chased for his brother's money. His brother was during this time in prison in Queensland serving a sentence for a number of bank robberies. He had not told any police officers he was under threat, and the police had never spoken to him about his brother during this period. At the time he was stopped, he said, the gun was on his waistband behind his back, and the magazines were in his pockets.

9 For the applicant, it was argued in support of the first ground of appeal that the learned trial Judge had invited the jury to speculate as to the reasons behind the applicant's possession of the firearm and ammunition. It was contended that this error had been compounded by the trial Judge's failure to direct the jury as to the applicant's explanation for not leaving his gun in the car, an issue which is referred to later. The applicant claimed he had not taken the gun out of his pocket because he had not wanted to make any movements in removing it. He knew that he had an unlicensed gun but he thought it was sufficiently hidden from view where it was. It had no safety catch. It did not occur to him to put it under the seat or in the glove box of the car just to get rid of it off his person. He denied that, if the worst came to the worst, he was intending to use the gun.

10 In his directions to the jury, the learned trial Judge pointed out that Constable Watson and the applicant had each claimed that the other had fired the first shot. He suggested that, before considering the other evidence, the jury might find it helpful to reflect on the circumstances in which each of the two men came together on the day in question. His Honour also suggested that there was nothing terribly remarkable about the stopping of the applicant's car, the applicant having admitted that he had been exceeding the speed limit. His Honour continued:

"Think about the accused. He is a 30-year-old man. At the time in question he had no motor driver's licence. He was driving a car in his mother's name but which he had built himself. The evidence was that he mentioned to police officers or to a police officer - I think it was Constable Carter at the time - that he had problems and he has told you that he was concerned that others were trying to get the proceeds of robberies carried out by his brother Brendan [Abbott] so he had a loaded, unlicensed pistol with a larger than standard magazine. It was a magazine suitable for a larger model of the pistol.

He had the pistol concealed in the waistband or belt behind his back and he had two other magazines, one in each of the front pockets on his Levis. They were full, or close to full, with bullets of two different kinds that you have heard about. You may ask yourself, 'Why did the accused have the magazines with him, the two extra magazines, at least?'

That question was asked of him in the witness box and I think he said he wanted to keep them together: 'If you had these things, why not carry them all the time?' Why did he have the pistol with him when he was in the car that day? He explained that by giving you the answer which I have just mentioned. He had the pistol - 'What's the point of having it if you don't keep it with you?'

When he was in the car driving along did he have the pistol in the waistband behind his back? I don't recall that he was asked about that. When the car was stopped and when, as he said, he got out to go back, even before the police officer asked him to do it, you may ask yourselves 'Why didn't he leave the pistol behind? Why did he take it with him? Was it because he had the pistol, he might as well have it with him or was it for some other reason?' The accused has told you that he didn't notice anything unusual about the police officer."

11 The passages complained about must be viewed in their context. The questions which the jury were invited to consider were appropriate questions. They had been given the usual instruction that the facts were for them to determine and they were duly instructed as to the onus and quantum of proof which rested upon the Crown. His Honour told the jury that they were entitled to act directly upon the evidence of witnesses, and that they were entitled to draw inferences, to come to conclusions. And he invited the jury to consider all the circumstances surrounding the incident. He told them:

"It is well to tell you also, members of the jury, that you are entitled of course to act directly upon the evidence of witnesses. In other words, if a witness has said to you, 'I saw something happen' or, 'I heard something said', you are entitled to find as a matter of fact, depending upon your view of the witness's evidence, that that thing did happen or those words were said, but that is not the limit of your role. You are entitled to draw inferences, as we lawyers say. You are entitled to make conclusions. It's not simply a case of that two and two make four or where there's smoke there's fire. It amounts to this: if as a result of your ordinary human experience, perhaps on the basis of logic, you know that if certain things happen, other things also must have happened, you're entitled to infer or conclude that those other things did happen but you must not guess, speculate or conjecture. You are not entitled to draw an inference unfavourable to the accused unless the proven facts point almost inevitably to that inference. If there is another reasonable inference that possibly is open, you will give the accused the benefit of that other inference."

His Honour went on to emphasise that suspicion could not form the basis of any finding of fact.

12 I am quite unable to accept that what his Honour told the jury was an invitation to speculate. He was essentially putting to the jury a number of questions which they should consider. It went no further than that, and it did not impinge in any respect upon his Honour's clear instruction that they were not to "guess, speculate or conjecture". There was no need for him to embark upon a consideration of the evidence which the jury had heard and which had been discussed by both counsel in the course of their addresses.

13 It was also contended under the first ground of appeal that the learned trial Judge, by inference, invited the jury to speculate about the reason for the accused's words whilst being transported in the ambulance taking him to hospital.

14 Constable D F Licastro, who arrived at the scene after the shooting, spoke to the applicant, who said to him: "I didn't mean to. I got pressured into it. Shit, tell him, tell him." And later: "If I go, I'm sorry but I had to. Is he going to be all right? I'm sorry." He was not challenged in cross-examination as to what he had heard the applicant say, but he denied having heard him say: "Why did he shoot me?" He said that everything that he recalled he had written down in his notebook immediately after the ambulance had departed.

15 An ambulance driver, Mr S Johnston, said in cross-examination that he heard two things. The first was the applicant saying words to the effect of: "Tell him I'm sorry, I didn't mean it". The second was: "Why did he do it? Why did he shoot me?"

16 Constable P A Carter, who travelled with the applicant in the back of the ambulance to Royal Perth Hospital, had a conversation with the applicant, in the course of which the applicant inquired about the police officer he had shot. He said he didn't know why he had done it and then went on to say: "He shot me first. He pulled his gun out. I pulled my gun out. He shot me first." In his cross-examination, Constable Carter said he could not recall the applicant saying to him: "Why did he shoot me?"

"Counsel have reminded you also of the evidence as to what the accused said after the shooting; words that he said at the scene, in the ambulance and later I think in Royal Perth Hospital. You have been reminded of what those words were and I shan't take you through that evidence again, but his words might help you to decide not only whether or not he had been shot without warning by a police officer, but also whether he had intended to kill the police officer.

You may find it helpful therefore, members of the jury, when thinking about what seems to be the first issue in the case, who fired the first shot, think of what the accused said later. Of course you will recall that in the ambulance it seems, according to Constable Carter, he did say it was the police officer that fired the first shot and he said, within the hearing of the ambulance officer, 'Why did he shoot me?' When thinking of those words of course you need to consider the timing of those words and the situation in which the accused found himself.

The second question that you might consider, and as to which the words of the accused at the scene and shortly after might be of some assistance, of course relates to his intent. Are the words that he spoke consistent with his having had the intent at the time he fired the shot, the intent to kill the police officer?"

18 I am quite unpersuaded that what his Honour said amounted to an invitation to speculate, or that it contained any invitation to the jury to draw an adverse inference that the applicant fabricated his statement in order to exonerate himself. His Honour made it very clear that it was for the jury to decide the various issues of fact.

19 Under this ground of appeal, counsel for the applicant sought to rely upon R v Torney (1983) 8 A Crim R 437. That was a case in which it was asserted that the trial Judge had related the evidence in a way which had not been relied upon by the Crown. There was nothing in what the trial Judge said which was of this nature and which necessitated his discussing with counsel, before delivering his charge, what he proposed to say to the jury.

21 The second ground of appeal related to his Honour's references to the evidence of three witnesses. It was argued that, in the course of his summing up on 11 August 1998, his Honour questioned the reliability of one aspect of the evidence of one of the witnesses, Mr B F Thompson, and that, in the course of his summing up on the following day, the learned trial Judge put the bulk of the evidence of Mr Thompson to the jury without any warning as to his reliability although his evidence had been shown to be most unreliable. It was also contended that his Honour had failed to comment on Constable Watson's lack of reliability, due to his incomplete and imperfect recollection of events and it was further argued that he had referred dismissively to the evidence of Ms D Sloan "simply because her version of events was not shared by other witnesses".

22 There is, in my opinion, no merit in this contention. His Honour clearly directed the jury that what he said to them as to matters of fact was by way of comment only and it was not part of the evidence. It was directed to reminding them of some aspects of the evidence and suggesting an approach which they might find helpful when they were considering their verdicts. He made it clear that what he said was not binding upon them in any way. He emphasised that they, and they alone, had the obligation of deciding what facts had been established upon the evidence. He then proceeded to make some observations as to how the jury should go about their task of assessing the credibility of the witnesses.

23 His Honour observed that by watching and listening to the witness, the jury could gain an impression of that person, and get some inkling, perhaps, of that person's character, attitude and, most importantly, from the point of the view of the jury, of that person's reliability. He went on to say that they had to keep in mind that the impression given by a witness, like any person, is not always a true impression of that person's character, attitudes or reliability and that a confident witness is not necessarily reliable. On the other hand, he said, an honest witness can be mistaken, and they would probably appreciate from hearing a number of witnesses in the case, who they might think were quite honest, but who have made a number of mistakes. The confidence with which a witness recalls something, he said, is not really a guide as to the accuracy of that person's testimony, and he instanced one aspect of Mr Thompson's evidence merely by way of illustration.

24 Having instructed the jury as to how they should approach their task of assessing the credibility of the witnesses, it did not fall to the learned trial Judge to express his own views to the jury as to the credibility of the various witnesses, and it would have been wrong for him to have done so. Nor was there any necessity for his Honour to repeat on 12 August 1998 what he had told the jury on 11 August 1998.

25 So far as the evidence of Constable Watson is concerned, it was made quite clear that it was his recollection in relation to the period after he had been wounded which was defective. Nothing in his evidence relating to the period prior to his being wounded indicated that his recollection had suffered.

27 The third ground of appeal contended that the trial Judge erred in failing adequately to put the defence case to the jury and, in the alternative, that he erred in failing to hold an even hand between the prosecution and defence cases.

28 The obligation of the trial Judge under s 638 of the Criminal Code is to instruct the jury as to the law applicable to the case "with such observations upon the evidence as the court thinks fit to make". There is, of course, an obligation to hold an even balance between the cases of the prosecution and the accused and fairly to direct the consideration of the jury to the matters raised by the accused in his defence - see Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, per Gibbs CJ at 10.

29 The High Court, comprising Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, considered the extent of the duty of trial Judges in their charges to the jury. At 560 - 561, their Honours said:

"In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence ... and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (NSW), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarize 'the evidence given in the trial' if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused ... This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial after a conviction in a criminal case, it is not enough if the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. ... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. ... Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. ... Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way." (footnotes omitted)

Reference may also be made in this respect to RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, at 637 [41], [42].

30 Before the learned trial Judge dealt with the facts, he told the jury that, in his summing up, he would be dealing with matters of fact, but that what he said was not binding upon them. He indicated that he would not deal with all of the evidence, or with all of the witnesses. Probably, he said, he would not deal with more than snippets from some of the witnesses which he thought might assist the jury in some way, so that what he said as to the facts would be fragmentary. He continued:

"You may think that it is unbalanced. You may think that I refer to witnesses or to evidence that doesn't help you at all and that I missed the witness or the evidence which might provide the key to the whole case. Members of the jury, you are not bound by my approach. You are the judges of the facts. It is for you to decide what evidence is important, what witnesses are helpful. It's for you to decide how to approach the evidence and what facts you find."

31 His Honour concluded his discussion of the facts by re-emphasising that it was for the jury to decide the facts.

32 It was contended that his Honour had failed to remind the jury of the applicant's evidence in connection with his reasons for his carrying his gun with him. In his evidence, he had claimed that it was for safety reasons and the fact that he would not leave the gun and ammunition around his children. For the applicant it was complained that the jury had been asked why he had not left the gun in the car when he went to talk to Constable Watson. The evidence of the applicant had been that he had the pistol in his waistband and that there was no point in his having the pistol if he did not have it on him. This was in the context of there being no suggestion of any premeditation of the applicant's action in shooting the police officer. His Honour rightly focussed the jury's attention upon the issue of who fired first.

33 In my opinion, his Honour's summing up satisfies the tests established by the High Court. It was not required of the learned trial Judge to summarise the evidence of every witness who addressed this subject. In particular, various witnesses described the sounds of the gunshots quite differently. It was neither fruitful, nor necessary, for the learned trial Judge to have embarked upon a detailed discussion of how each of the various witnesses remembered the gunshots, whether as cracks, bangs or pops. A reading of his summing up does not, in my opinion, support the contention that the learned trial Judge was dismissive of the evidence of independent witnesses who supported the defence case.

34 I am not persuaded that the third ground of appeal has been established.

35 The fourth ground of appeal seeks to attack the trial Judge's charge to the jury on the issue of self-defence. As to this, his Honour said:

"The accused man does not deny shooting the police officer but on his behalf it is said that the shooting was not unlawful; it was justified or excused by law because it was done in self-defence, so I will speak to you about self-defence. Now, our Criminal Code provides that if a person is unlawfully assaulted, it is lawful for him to use such force as is reasonably necessary to make effectual defence against the assault. So far I assume there is no difficulty.

The Criminal Code goes on to provide expressly that if the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm and the person using force believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."

36 His Honour went on to say that the matter really boiled down to one of common sense:

"If someone assaults you, that is, if someone applies force to you or threatens to apply force to you without your consent, then you're not obliged to turn tail and run away. You are entitled to use such force as is reasonably necessary to defend yourself against the application of that force or the threat."

There can be no justifiable criticism of these directions - see Sreckovic v The Queen [1973] WAR 85, at 89; R v Randle (1995) 81 A Crim R 113, at 124.

"It's largely a matter of degree. If someone slaps you or even punches you it would be reasonable to slap him or punch him back, perhaps even to pick up a baseball bat and hit him with it or threaten him with it to avoid the threatened attack, in order to make him back off, but if someone slaps you or punches you it would hardly be reasonable then to shoot him dead. That would be a clear example of using more force than was reasonably necessary.

If a man were to shoot you or threaten to shoot you, then it might well be reasonable for you to shoot him in order to disable him or even to kill him, if that were reasonably necessary to defend yourself. So in this case, in deciding whether the shooting of the police officer was unlawful, you will need to consider whether the accused was acting in self-defence at the time and if so whether he used more force than was reasonably necessary."

38 It really came down to a question of who shot first. His Honour said:

"Bearing in mind the circumstances, as both counsel seem to have told you, your decision in relation to self-defence probably will depend upon your finding as to who fired the first shot, and that, I suggest to you, is the first real issue for you to decide. If the police officer fired the first shot at the accused without warning, you may well think that in shooting the police officer the accused was acting in self-defence. You may also think that the force he used was reasonable in the circumstances. Those of course are matters of fact and entirely for you."

His Honour then went on to deal, correctly, with the onus of proof in self-defence and told the jury that if, in the end, they were left with a reasonable doubt as to whether or not self-defence had any application in the circumstances of the case, then they would not find that the shooting of the police officer was unlawful and would find the accused not guilty on both counts.

39 His Honour concluded his remarks on self-defence by asking the members of the jury whether they followed his directions. It is sufficiently clear from the transcript that, in some manner, the jurors indicated that they had followed the directions, because his Honour went on to say that he gathered that they had done so. He further invited them to seek assistance without hesitation. They did not do so.

40 His Honour's directions followed closely the elements of self-defence against an unprovoked assault as set out in s 248 of the Criminal Code, and I am far from persuaded that his Honour was in error in any aspect of those directions. In the circumstances of this case, they did not require elaboration. As his Honour pointed out, in the end the critical question was who fired first. There was no point in his Honour's instructing the jury regarding any significance in the direction of the bullet wounds to the applicant and to Constable Watson. This would have depended upon the movements of the protagonists at the time the respective guns were fired. The evidence did not permit any clear conclusion in this respect. To have invited the jury to make findings based upon the trajectory of the bullets would undoubtedly have been to invite the jury to speculate.

42 The fifth ground of appeal contends that the jury's verdict was unreasonable and cannot be supported. It is based upon s 689(1) of the Criminal Code, which relevantly provides that the Court of Criminal Appeal, on an appeal against conviction, shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground that there was a miscarriage of justice. The task of a court of criminal appeal in such a case has been explained on a number of occasions in recent years by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 493:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [see Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR at 532; Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen [No 2] (1984) 153 CLR at 621]."

43 Their Honours continued at 494 - 495, having referred to the decision of Barwick CJ in Ratten v The Queen (1974) 131 CLR at 516:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. ... In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

44 In Jones v The Queen (1997) 191 CLR 439, at 452, Gaudron, McHugh and Gummow JJ indicated that the test formulated by the majority in M v The Queen must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory. In M v The Queen, Gaudron J had agreed with the majority formulation of the test, whilst McHugh J had favoured the correct test as being "whether a reasonable jury must have had a reasonable doubt about the accused's guilt", rather than the "open to the jury" test.

45 The evidence of Constable Watson was that after he had stopped the applicant, he had requested him to empty his pockets. The applicant had placed his right hand into the right pocket of his jeans and had pulled out and shown him some change, consisting of silver and gold coins. He noticed that the applicant had not pulled out the long and narrow rectangular shaped object. The applicant had then put his left hand into his left pocket and, while Constable Watson was watching, he saw what he believed to be the top of a gun magazine. He had seen a silver hollow tipped bullet in the top of the magazine. He then saw a blurred movement from the applicant's right hand side and realised he had something black in his hand. There was then a loud bang and he felt pain in his left groin area. At this time, he said, his own gun was in his holster. He did not have a good memory of what happened after that. His next recollection was standing with his own gun in his left hand, pointing it directly at the applicant and thinking, "I've missed". At the time he first felt the pain, he was a metre or a metre and a half away from the applicant. He did not deny that the two bullets found in the applicant's body came from his revolver, nor did he deny that he had fired them. He did deny that when he saw the applicant's magazine and cartridge he had drawn his revolver and fired at the applicant.

46 In contrast to the evidence of Constable Watson, the evidence of the applicant was that, when Constable Watson asked him about what was in his pockets, and in particular what was in his left pocket, he said that he looked down and seen a bulge. He realised that Constable Watson could clearly see the other magazine, so he pulled it out with his left hand. He was going to give the magazine to Constable Watson when there was a sudden movement from the latter's left side and he then saw that Constable Watson had a gun. There was then a loud bang and he felt he had been shot in the leg.

47 I have already referred to the comments made by the applicant to Constable Licastro at the scene of the incident, when the applicant told him: "I didn't mean to. I got pressured into it. Shit, tell him, tell him." And later: "If I go, I am sorry but I had to. Is he going to be all right? I'm sorry." Constable Licastro denied having heard the applicant say: "Why did he shoot me?" The ambulance driver, Mr S Johnston, said in his cross-examination that he heard the applicant say words to the effect of "Tell him I'm sorry, I didn't mean it." He then heard the applicant say: "Why did he do it? Why did he shoot me?" Constable Carter, who was with the applicant in the back of the ambulance, said the applicant enquired about the police officer he had shot. He said he did not know why he had done it and then went on to say: "He shot me first. He pulled his gun out, I pulled my gun out. He shot me first." Constable Carter could not remember having heard the applicant say: "Why did he shoot me?"

48 A number of the witnesses heard the shots, but there was no consistency in what they said. Mr Thompson, whose reliability was questioned by his Honour, was clearly wrong in his evidence that Constable Watson's firearm was on his right hip. He saw the applicant walking towards the policeman, with his right hand extended. Then he saw him reach behind his back and into his back pocket and pull out what looked to be a firearm. He said the policeman turned side on to the applicant and jumped in the air and that was when he heard the "crack". The policeman went down on his right knee and he heard him tell the applicant either to throw his gun down or to put his gun down. The applicant was still pointing the weapon at the police officer, who called out again to him to put his weapon down. The police officer then drew his weapon and started firing. There were three shots in quick succession and there could have been more after that. He did not see the applicant on his knees.

49 Counsel for the applicant pointed out that Mr Thompson had said nothing in his two statements or at the preliminary hearing about the police officer's having jumped in the air.

50 Mr H Korthuis, who drove past the scene, heard what sounded like a shotgun being fired a couple of times. He looked in his rear vision mirror to see what was going on and saw the applicant running away from the police officer towards the other side of the road. He did not see the shots being fired.

51 Mr I G Robinson was cleaning gullies near the scene of the incident. The police car pulled up about 10 metres away from where he was working. He saw the police officer get out and walk to the door of the applicant's vehicle. He saw what he thought was a mobile phone being taken out of the applicant's back pocket and being handed to the police officer. The applicant walked back to his vehicle and leant in through the driver's window before walking back to where the police officer was standing. All of a sudden the applicant lunged at the police officer and then, as the police officer fell back, his right hand went down to his hip. There was then a loud crack, followed by four or five "like, bang bangs". The first gunshot sound was completely different from the others. The others were like "loud bangs like a car backfiring". But the first one was definitely completely different. He could not see whether the policeman had a firearm or not. All he could say was that his hand went for his hip as he was going backwards. (The evidence of Constable Watson was that he was left-handed and that his holster was on his left hand side.) The applicant then ran across Guildford Road "like a startled rabbit", while the policeman was crawling towards his car. The applicant came back to his car and tried to drive off, but a truck pulled up in front of him, preventing him from getting away. The applicant asked Mr Robinson whether "he", obviously meaning Constable Watson, was all right. In cross-examination, he agreed that a magazine which was shown to him was very similar to the object which he had said was passed to the police officer. He also acknowledged that what he thought was the mobile phone could have been taken from the left front pocket of the applicant. He repeated that there was a bang and that there were three or four other shots. Prior to seeing the police officer go down, he did not see the applicant drop to his knees. He said that from the time he saw him go down, the police officer did not fire any shot. However, he could have fired his gun before he went down. There was hardly any time between the first shot and the three shots. He did not see either of the men go for a gun. When the applicant asked whether the police officer was all right, he did not say anything about the Constable having shot first.

52 Mr M A D Baker was working with Mr Robinson. He heard a number of bangs. The police officer fell down and the other person ran away. He did not see a gun at this stage. The police officer had his back to him. The applicant did not look agitated. The police officer's gun was in a holster on his left hand side. He did not see the police officer pull the gun out. In cross-examination, however, he agreed that the police officer reached for his gun before he heard any bangs. He also agreed that he saw the police officer grab for his gun before he heard any bangs. He went on to say that he had not seen the police officer fire his gun at the other man.

53 In re-examination, Mr Baker denied having seen either man with a gun in his hand at any time and he confirmed that the policeman had merely put his hand on his hip.

54 Ms B J Herdman had been driving past the scene. She saw the two men. The one talking to the police officer was holding something in his hand. She could not see anything in the policeman's hand at the time; but she added that she could not actually see his hand. Within a few seconds, she heard a loud bang which she believed to be a gunshot. She was driving at the time, looking ahead. There was a gap of one and a half seconds between the first bang and the second bang. The second and third

bangs were closer together. The applicant was holding something with two hands out in front of him. She was not able to say whether it was a gun. He appeared to be aiming the object towards the chest of the police officer - the upper chest. She did not see a gun or a holster on the Constable.

55 Although there are a variety of discrepancies in the evidence of the witnesses, they are not, in my view, fundamental in nature and are such as may frequently be encountered with honest witnesses endeavouring to recall an offence which occurred some two years before the trial. It was open to the jury to accept the evidence of Constable Watson and to find, beyond reasonable doubt, that the applicant was guilty of the alternative charge. I am of the view that the jury's verdict was not unreasonable and that it was supported by the evidence.

56 I would grant leave to appeal in this matter; but I would dismiss the appeal.

57 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Kennedy J with which I entirely agree. I, too, would grant leave to appeal, but dismiss the appeal.