Criminal Law -Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Irregularities in relation to jury - Other cases - Whether case properly considered by jury. (Aust Dig Criminal Law [998].)

Appeal and New Trial - Appeal - General principles - Interference with judge's findings of fact - Functions of appellate court - In general - For the purpose of sentencing - Findings did not run counter to jury's verdict. (Aust Dig Appeal and New Trial [18].)

HOBART, 5-7 November 1996 (hearing), 14 March 1997 (decision)

Application for leave to appeal against sentence refused.

1. The appellant challenges his conviction on one count of murder and seeks leave to appeal against the sentence of twenty years' imprisonment therefor imposed upon him on the following grounds:

"1 The verdict of the jury was unsafe and unsatisfactory because it was not reasonably open to the jury to be satisfied beyond a reasonable doubt that the appellant, when he inflicted the fatal stab wound, did not do so in defence of himself using only such force as, in the circumstances as he believed them to be, it was reasonable to use.

1A A miscarriage of justice occurred because hearsay evidence was led from the witness Mark Wescombe that Frederick Plumstead had told him that 'he'd went round there to beat this bloke up because he'd stolen some of his stuff out of his house', and that 'this bloke had been livin' in his house while he was in goal [sic], with his wife, and when she moved to her mother's ... he stole some furniture and stuff', when no questions were asked as to the reaction of the appellant upon Plumstead saying those things.

2 A miscarriage of justice occurred because the jury learned from an answer given by the appellant in cross-examination that Trudy Plumstead had once said that the appellant pulled Paul Atkins out of the doorway at 11 Mason Street, Claremont, when no questions were asked as to the context of her having said that, nor as to the reaction of the appellant upon hearing her say that or learning that she had said that.

2A The learned trial judge misdirected the jury in that he made comments which implied that it was part of the defence case that Paul Atkins had attacked Frederick Plumstead, when there was no evidence or suggestion to that effect.

3 The learned trial judge ought to have directed the jury to the effect that a person defending himself cannot weigh to a nicety the exact measure of his defensive action, but omitted to do so.

4 There was an unacceptable risk that the verdict was reached by some process other than true agreement in conformity with the jurors' oaths and affirmation, given that the jury deliberated upon their verdict from about 9:50 am until about 6:00 pm on the 24th June, 1996, reached a stage at about 4:30 pm on that day when further deliberation that day or night was likely to be unproductive, were 'locked up' from about 6:00 pm that day until about 9:00 am the following day, and returned a unanimous verdict of guilty at about 9:40 am that following day.

5 The learned trial judge for the purposes of sentencing the appellant made findings of fact that were not reasonably open to him to the effect that:

(a) the appellant's intention or purpose was to stop the deceased from preventing Frederick Plumstead in carrying out his attack upon Paul Atkins;

(b) the appellant was not acting in self-defence; and

(c) the appellant stabbed the deceased twice.

6 The sentence imposed was manifestly excessive in all the circumstances of the case."

2 It was either common ground or there was ample evidence to establish that the deceased met his death by being stabbed in the heart by the appellant with a knife wielded by the latter. The appellant had accompanied one Frederick Plumstead and his wife to the home of Mrs Fay Wilson at Claremont at about 9pm on 20 August 1995. Plumstead was anxious to confront Mrs Wilson's son, Paul Atkins, over a long standing grievance that Atkins had "ripped off" Plumstead. He had summoned the appellant to his home at Dodges Ferry in order to look after Plumstead's children while he was absent, but once there, Plumstead had persuaded the appellant to accompany him and his wife while they located Atkins. They first sought him at an address in New Town but, being unsuccessful there, then went to his mother's home in the hope of either finding him there or of determining his whereabouts. The appellant agreed to go with Plumstead in order to "back him up".

3 The three alighted from their car in Mason Street, the appellant with the knife later used to stab the deceased attached to a belt loop on his trousers and Plumstead, to the appellant's knowledge, armed with a pick axe handle. Plumstead stayed concealed behind a fence at the bottom of the drive and the appellant and Mrs Plumstead went to the door of the house. Mrs Wilson answered the knock and told Paul Atkins a man and woman were there to see him. Atkins went to the door where he found the appellant immediately in front of it. The appellant held his hand out to shake Atkins' hand and then pulled him from the doorway to a van parked close by it. As they were struggling, Plumstead struck Atkins on the head and then in the back with the pick axe handle. There were a number of people at Mrs Wilson's home that night including another son, the deceased, who was Paul Atkins' half brother. Seeing the commotion outside, he seized an axe from the laundry near the exit door and went outside to assist Atkins, who was under attack from Plumstead. The deceased struck Plumstead at least one blow in the back with the blade of the axe. It was not a blow administered with full force or much worse injury would have been done to Plumstead, but it seems to have been sufficient, on one view of the evidence, to deter Plumstead from continuing with his attack on Atkins. The deceased then moved away some distance into the back yard of the house and was followed quickly by the appellant who had the knife drawn. According to the witness, Paul Miller, who was not a member of the family but a friend of Paul Atkins' brother Trad Atkins and had been assisting Paul Atkins to move furniture in the van parked in the driveway, the person with the knife (the appellant) "took off" after the deceased and he saw the two facing each other in the back yard with the deceased holding the axe up in front of his body in a defensive attitude. The appellant had his back to Miller, who then looked away towards Paul Atkins, who was dazed and bleeding from Plumstead's assaults. He saw no more of the deceased who, despite being stabbed in the heart by the appellant, managed to scale a fence in the yard and to approach the entrance to a nearby house where he expired. Following the departure from the yard by the deceased, the appellant picked up the axe and he and the Plumsteads left the premises, discarding both knife and axe on a footpath some little distance down the street. The following afternoon the appellant was interviewed by police and charged with murder. He said in evidence at the trial that he first learned of the death of the deceased on the 7am radio news that day.

4 As might be expected in a situation of escalating violence observed by a number of different people, most of whom were closely related to the victim of Plumstead's violence and the deceased who had intervened to restrain it, there were a number of discrepancies between the accounts given by them. There was, furthermore, no eye witness to the infliction of the lethal blow, save the appellant. Nevertheless, the inference that that blow was struck intentionally in circumstances amounting to murder and was not justified as lawful self-defence was clearly open to the jury. No complaint is made of the learned trial judge's directions on these aspects of the case. The submission that the verdict is unsafe and unsatisfactory rests on the absence of direct evidence from Crown witnesses of the circumstances immediately surrounding the striking of the blow and criticisms of the evidence of the individual witnesses, some of which is said to be inherently improbable and some of which, as I say, conflicts in some respects with that of other witnesses. Considerable reliance is also placed on the fact that the deceased, very shortly before the fatal blow from the appellant, had himself struck Plumstead a blow in the back with an axe which he still held at the time of the fatal confrontation. It is submitted that on the whole of the evidence no reasonable jury could have been satisfied beyond reasonable doubt that at the time of the fatal blow the appellant was not acting in lawful self-defence and that he used more force than was reasonably necessary in the circumstances as he believed them to be.

5 In Chidiac v R (1990 - [1991] HCA 4; 1991) 171 CLR 432 at 443 Mason CJ said:

"In deciding whether the jury, acting reasonably, should have entertained a reasonable doubt, it is the duty of the appellate court to make an independent assessment of the evidence: Ratten (1974) 131 CLR, at pp 515 - 516; Chamberlain [No 2] (1984) 153 CLR, at p 534; Morris (1987) 163 CLR, at pp 463, 473. In making that assessment, the court must necessarily take into account the nature and quality of the evidence, as this Court did in Morris, when it set aside the conviction as being unsafe or unsatisfactory because it proceeded upon the jury's evident acceptance of an admission of guilt which, in the opinion of the Court, was unreliable."

6 In reaching a conclusion that although there is as a matter of law evidence upon which the accused could have been convicted, the jury acting reasonably must nevertheless have entertained a reasonable doubt as to the guilt of the accused, the sufficiency and quality of the evidence must be independently assessed by the Court of Criminal Appeal (Morris v R (supra) at 473). This does not mean that, as Dawson J points out in Chidiac (supra) at 452 - 453:

"... a court of criminal appeal is entitled to substitute its view of the quality of the evidence for the view which the jury was entitled to take. Where the quality of the evidence depends upon the credibility of the witnesses, that would be to disregard the advantage enjoyed by the jury in having seen and heard the witnesses."

7 What he thought was meant by the expression "[a] Court Of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality" was:

"... that there may be cases, perhaps relatively infrequent, where the quality of the evidence is such that no reasonable jury could have failed to entertain a doubt. Morris, it will be recalled, was a case in which the prosecution case depended almost entirely upon the confession of the accused who was a chronic alcoholic suffering from brain damage. This raised the possibility that his confession was the product of confabulation" (at 453).

8 In Morris (supra), Carr v R [1988] HCA 47; (1988) 165 CLR 314, Ralph and George (1988) 37 A Crim R 202 and M v R [1994] HCA 63; (1994) 181 CLR 487, the quality of the Crown evidence was inherently suspect: in Morris (supra) for the reason just given; in Carr v R (supra) because guilt depended almost entirely on an unsigned but disputed admission to police; in Ralph and George (supra) because the only evidence against the accused was the uncorroborated evidence of an accomplice who was a convicted criminal, an admitted liar and perjurer and one capable of clever deception; and in M (supra) because the uncorroborated evidence of the complainant was inconsistent with medical testimony, there was a lengthy delay in the making of the complaint and a number of inconsistencies with circumstances clearly established by the remaining evidence. Even in cases such as these, however, the reviewing appellate 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" (M v R (supra) at 493).

9 In the present case the evidence did not suffer from any defect which made it inherently suspect in the same way as the instances I have cited above. True, there were differences between the accounts of the witnesses as to matters of detail and the distress of the mother, sister and brothers of the deceased at his fate may have reduced the objectivity of their evidence. Nevertheless, these were matters well within the capacity of the jury to evaluate. The evidence of Paul Miller, who was neither related to the deceased nor a close friend of his, was quite capable of establishing that the appellant had acted aggressively from the start of the incident, first pulling Atkins from his home and struggling with him, then, while Plumstead beat Atkins with a pick handle, pointing his knife at the group assembled at the door even before the deceased emerged with the axe and used it on Plumstead. Finally, Miller confirmed what the jury was entitled to regard as a substantial retreat by the deceased to a point in the back yard well away from the intruders and their line of retreat to their car and confirmed that the appellant had approached the deceased, who showed no sign of aggression, but held the axe close to his body in a defensive manner which the witness physically demonstrated to the jury, but which we do not have the advantage of observing.

10 It was submitted that his evidence should be discounted because it differed in some details from accounts of other witnesses. In the circumstances I do not regard this as a fair criticism. The jury were entitled to believe him in preference to those who gave different evidence from his. Again, it was submitted that his evidence that the deceased, holding an axe, went past the appellant, whose knife was drawn, and attacked Plumstead's back with the axe, was grossly improbable. Yet he undoubtedly did attack Plumstead with the axe, although not with full vigour, and did so in close proximity to the appellant. Perhaps the deceased did not himself see the knife, or was so concerned about Plumstead's attack with the pick axe handle on his half brother that he disregarded any immediate threat the knife may have represented. I see nothing improbable about that evidence, nor about the fact that the witness turned his attention from the appellant and the deceased moments before the fatal blow and concentrated it on the condition of Paul Atkins, who was injured and bloodied by Plumstead's assault upon him.

11 The jury saw a video taped interview between the police and the appellant and had the benefit of seeing him give evidence on oath at the trial. They were entitled to reject his claim that he used the knife only when the deceased took a swing at him with the axe, and to infer that he used it in the course of a continued demonstration of aggression, this time directed to the deceased who had retreated from the principal scene of conflict. In my opinion, on a review of the whole evidence, there is no reason to conclude that the jury's verdict was unreasonable. Ground 1 fails.

Ground 1A - Hearsay as to Plumstead's Intentions

Ground 2 - Hearsay as to Mrs Plumstead's Observations

12 Within minutes of leaving the home of Mrs Wilson where the homicide had occurred, the appellant, together with the Plumsteads, called on the appellant's brother Mark Wescombe. Evidence was led from him that when the three arrived, Plumstead had, in the presence of the appellant, said "that he'd been in a fight and he told me why he'd been in a fight and he went round there to beat this bloke up because he'd stolen some of his stuff out of his house". Plumstead also told the witness that the person in question "had been living in his house while he was in gaol, with his wife, and when she moved to her mother's, I think, he stole some furniture and stuff". He also said Plumstead had told him he had been hit in the back with an axe and he gave evidence that both men had taken off and left windcheaters there to be washed.

13 The second piece of hearsay arose in the cross-examination of the appellant. He had disputed Paul Atkins' claim that upon shaking hands with him at the door of the house, the appellant had pulled Atkins forward and away from the house. This exchange occurred:

"Q Did you know that Trudy Plumstead had said that you pulled this man out of the doorway? A Yes I heard that.

Q Did you speak to her about it? A No.

Q She was there? A Yes, she was there.

Q In the position approximately that you presume she was in? A Yes.

Q And when you shook his hand you pulled him out of the doorway? A No.

Q That's what she said though, isn't it? A Yes.

Q And you would disagree with that? A Yes.

Q And you would disagree with Mr Atkins when he says that you pulled him out as well? A Yes. He walked outside and closed the door behind him."

14 Trudy Plumstead was not called as a witness on this trial but, although the jury was not aware of it, she did give evidence on an earlier trial of Plumstead and the appellant in respect of the assault of Atkins. Plumstead did not give evidence on the murder trial either.

"The second point I want to raise with you concerns two discrete passages of evidence that occurred during the course of the trial. One of those passages was mentioned by Mr Blow this morning and I think Mr Bugg mentioned the other yesterday afternoon. But you will remember that when we heard from the accused's brother Mr Wescombe, questions were asked of Mr Wescombe as to what Fred Plumstead had been saying at Mr Wescombe's home at Otago Bay, and Mr Wescombe told us that Plumstead told him that there'd been a fight and he'd been to beat this bloke up because he'd stolen stuff from the home and that he got hit in the back with an axe and that he inspected that wound and so on.

Well now, as I've told you already - as I've reminded you already - we have not heard any evidence from Plumstead. What he says out of court, that is, not in the witness box about what occurred or why he went or why he did anything, is not evidence of that fact that you can act upon. To do that, if you were to accept what Plumstead had told Wescombe as evidence of the facts that Plumstead was talking about, you would be using that evidence in what we call a hearsay way. You would be using it to establish the truth of the utterances made by Plumstead. In this case, you are not entitled to do that. Mr Bugg was entitled to ask questions about what Plumstead might have said because the evidence was - and I don't think it's contradicted - that the accused man was present at the time and therefore his reaction and his response to what his friend Plumstead was saying, might have been of some relevance in the case. As it transpired, I don't think he gave any evidence of a particular reaction - that is Mr Wescombe I don't think gave any evidence of a particular reaction by his brother. So you would not be entitled to use the evidence of Plumstead's conversation with him to establish the truth of any of the matters of which Plumstead was speaking. So you must be very careful about that.

Then similarly, Mr Bugg asked the accused whether Trudy Plumstead had said on an earlier occasion that he, the accused, had pulled Paul Atkins from the doorway, and the accused agreed that that had been said, but he - I think - I'll just check on that - Q: 'Did you know that Trudy Plumstead had said that you pulled this man out of the doorway? ... Yes, I heard that.' 'Did you speak to her about it? ... No.' 'She was there? ... Yes, she was there.' 'But that's what she said though, isn't it? ... Yes.' 'You would disagree with that? ... Yes.' 'You would disagree with Mr Atkins when he says that as well? ... Yes.' Well now, Mr Bugg was entitled to ask the accused whether he had had any particular reaction to something that Trudy Plumstead had said and if there had been any such reaction that would be something you'd be entitled to take into account, but you would not be entitled to rely on anything that Trudy Plumstead might have said out of court on some occasion which is not specified, about whether or not Atkins had been pulled from the house by the accused. To use that evidence in that way would be totally impermissible. So you can hear the proposition put, you can judge what the accused's reaction to something that he's heard from someone else might be, and whether that illuminates his conduct in any way, is a matter for you. But you can't use something that's been reported as having been said out of court by someone such as Trudy Plumstead or Fred Plumstead for the purpose of proving or corroborating that, for example, Atkins had been pulled out of the door by the accused. Her evidence can not be used in that way and must not be used in that way."

16 In respect of the hearsay statement of Plumstead, the evidence was admissible, although little purpose was served by introducing it without some evidence of the appellant's reaction or lack of it; but it would only have been prejudicial had the jury used it as evidence of the truth of the statement. The learned trial judge's clear warning was, in my view, quite sufficient to ensure that they did not do so. In any event, the fact that Plumstead had a grievance against Atkins and went round to confront him, taking the appellant to "back him up", was common ground. There is no possibility of a miscarriage of justice in respect of this evidence.

17 As to the statement by Trudy Plumstead, no question about it should, in my view, have been asked. If counsel had been relying on her statement at an earlier trial of the appellant, his reaction to it could not have been fairly gauged. But for the judge's injunction, the fact that one of the appellant's party had made such a statement and thereby confirmed Atkins' claim was likely to impact upon the jury's assessment of the appellant's denial and on his general credibility. Nevertheless, I am satisfied that no miscarriage of justice could reasonably have resulted. The judge clearly warned the jury not to use it as proof of the fact alleged or as corroboration of Atkins' evidence that it had occurred and in these circumstances I cannot see that any prejudice was caused to the appellant. Counsel for the appellant, in his outline submissions, said that it was not contended that the appeal could succeed on ground 2 alone.

Ground 2A - Misrepresentation of the Defence Case

18 Counsel for the appellant complained that in the course of his summing up the learned trial judge asked the jury rhetorically whether there was room to conclude inter alia that in some way Atkins started attacking Plumstead. Shortly thereafter his Honour asked, rhetorically again, whether the appellant perceived himself as being there defending Plumstead against a quite unwarranted attack upon him by Paul Atkins in the first place. Counsel submitted that it had never been suggested by the appellant, or any other witness, that Atkins had attacked Plumstead. There was undisputed evidence to the contrary, namely that when Atkins and the appellant were scuffling, Plumstead had attacked Atkins and beaten him with the pick axe handle. His Honour's comments, so it is said, might well have led the jury to think, incorrectly, that it was part of the defence case that Atkins had attacked Plumstead and not vice versa. It was submitted that there was a significant risk that as a result of the comments complained of, the jury gave the appellant's evidence less credit than it deserved and gave his counsel's submissions less weight than they deserved.

19 The questions posed by his Honour must be considered in the context of the subject matter he was then dealing with, namely the question of self-defence. Having adverted to the unexpected arrival of the appellant and the Plumsteads and the deceased's observation of Plumstead's assault on Paul Atkins with a pick axe handle, his Honour raised the question of the reasonableness of the deceased's conduct in seizing the axe which was near the back door. His Honour said:

"Is it unreasonable, is it excessive reaction on his part to seize the first thing that comes to hand just inside the door and go out and act as the evidence might suggest he did, in trying to drive Plumstead off Paul. So you'd need to think about that. Or, on the other hand, is there room to conclude that it wasn't Rudman who was in any way an aggressor when he went to the door, that Paul Atkins, misconceiving what he saw outside, aggressively wrestled Rudman up against the combi-van and then in some way started attacking Plumstead. In other words, was Atkins the aggressor or was he a person who was the victim of an attack by one or more of these unexpected visitors. And you'd need to consider those competing scenarios I imagine, because I think you would need to consider, but it's a matter for you, whether Rudman the accused perceived himself to be aiding Plumstead in his attack by producing the knife and threatening people and telling them to keep away. Did he see his role as watching Plumstead's back as it has been put, during the course of the evidence, so that Plumstead could get a free go at Paul Atkins and give him a thrashing of some kind. Or did Rudman perceive himself as being there defending Plumstead against a quite unwarranted attack upon him by Paul in the first place perhaps and certainly Stephen in the second place. These are all issues, I think, that you will have to confront at some stage in the course of your deliberations, if you come to the conclusion that the act of the accused which caused the death of Stephen Fletcher-Jones was a voluntary and intentional act."

20 While it is true that the defence case never claimed that Plumstead was the subject of an unlawful assault by Atkins, the possibility that the appellant was the subject of such an assault by Atkins was raised in the record of interview when the appellant said of Atkins, "What I think is he, he must have seen Fred and gone and scruffed me - like pushed me and I've scruffed him". In his evidence, the appellant repeated the claim that he did not pull Atkins away from the door in the course of shaking his hand, but that Atkins came with him, dropped the appellant's hand and scruffed the appellant. His Honour was contrasting the hypotheses that the appellant was participating in an attack upon Atkins on the one hand, or that Atkins, and subsequently the deceased, had unlawfully assaulted the appellant and/or his party. Perhaps the hypothesis said to be left open by his Honour that Atkins initiated the attack on Plumstead was an unnecessary illustration of circumstances where the principles relating to self-defence would call for a different application from that urged by the Crown, but it was not advanced by his Honour as a contention put forward by the defence. I do not think there is any risk that the jury were led to perceive the defence as presenting an untenable position in respect of that part of the conflict and hence tempted to treat all its contentions as equally untenable. I do not think there is any substance in this ground.

Ground 3 - Degree of Force Used in Self-Defence

21 Although the primary thrust of the Crown case was that the appellant's act in stabbing the deceased was motivated by aggression and that he was not acting in defence of himself at all, the learned trial judge very properly did address the issue of whether or not the appellant, in the circumstances as he believed them to be, had used more force than it was reasonable to use. He told the jury that a person who genuinely believes he is threatened with an attack is not obliged to wait until the attack has commenced and that he may take reasonable measures to make the situation safe. In the passage complained of, he said:

"... for the purpose of determining whether the accused's actions in self defence were no more than were reasonably necessary you might need to consider the possibility that he could have done something else to avoid the attack if he felt himself threatened with an attack. Could he have done something less violent to deflect the attack. Could he have retreated. Could he have sidestepped. Could he have taken any form of evasive action to avoid the attack rather than using force to provide himself with a defence.

Now again, I stress that his failure to have recourse to any one of those alternatives is plainly not decisive but they are matters that obviously would have to be considered. What could he have done other than what he did."

22 In Palmer v R [1970] UKPC 2; [1971] AC 814 at 832, Lord Morris, delivering the judgment of the Privy Council, said:

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

23 Likewise, as Richards J said in Saler v Klingbiel [1945] SASR 171 at 172, a case not of self-defence but of the defence of another to which the same considerations apply:

"It must of course be conceded that it is not the function of a protecting intervener to go further than protection and administer punishment; but one must not weigh conduct on such an occasion with 'golden scales' ...".

24 Having regard to the comments of his Honour set out above, it is claimed that the failure of the learned trial judge to give a direction to that effect might have suggested that the appellant, if entitled to use force in defence of himself when the deceased, as he claimed, swung the axe at him, was only entitled to use the minimum amount of force that would have been sufficient to deflect an attack by the deceased. Lord Morris, in Palmer (supra) at 832 said:

"There are no prescribed words which must be employed in or adopted in a summing up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence."

25 In explaining the common law concept of self-defence, the earlier quotation from Palmer (supra) of weighing the measure of the response to a nicety and the dictum of Richards J may, in a case similar to the present, prove to be very helpful to the jury (see also Zecevic v The Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645). No doubt they could be helpful also in providing guidance to the proper application of the Criminal Code, s46. But the concept of self-defence has been rephrased in the section and a proper explanation of its terms, taken in conjunction with the onus of proof, should be sufficient to ensure that the jury is not left under the impression that only some minimum amount of force objectively determined without regard to the accused's "unexpected anguish" may be utilised, the excess, even if only slight, denying him a defence.

26 The learned trial judge quoted the section and explained to the jury:

"So there are two important ingredients which must enter into any consideration of whether or not a person has been acting in a justifiable way in response to an attack. The two elements are that a jury must look firstly at the circumstances as the accused person perceived them to be. You must look, if you can, through the accused's eyes at the situation confronting him. You must try and determine what he saw and appreciated about the unfolding events. You must take into account the fact that he may have been mistaken - that is after having heard all of the evidence in the case, you might think his perception about what occurred was wrong, but nonetheless, the first thing you must look at is how he perceived it to be. And even if he was wrong, as you would not determine about what was happening, you must nonetheless bear steadfastly in mind that it is his perception of events which is important for you to have in mind when you consider this most important question. So you determine how the accused man saw the relevant events and you then turn to the second question which is involved in this definition. Was his response to those perceived events a reasonable response. Now, that is a question which in no way depends upon what he thought might have been a reasonable response. That question depends upon your assessment of what was, in the circumstances as he saw them to be, what was a reasonable response. So the first test, if you like, is an objective [sic] one. How did the accused see things. The second test is an objective one. Was it reasonable for him to do what he did in response to the things that he perceived. I mean, plainly, just to give an illustration of this, if someone perceives that they are about to be hit with an open hand, you might think it reasonable that you would put up your hand to stop it or run away, or do anything to avoid getting a slap. You might think, however, that it would be a grossly excessive reaction to a minor assault of that kind to pull out a pistol and shoot your assailant dead on the spot. So, I mean, that is an extreme example, but it illustrates for you, I think, the way in which you've got to look at the actions of the accused. You've got to, as it were, look through his eyes, see what he perceived, and you use the whole of the evidence in determining that, not just necessarily what he says - it is your assessment of what he actually perceived - and then you look to see whether his response to that was a reasonable use of force - was a reasonable response. If he responds unreasonably, if he uses grossly excessive force he can't rely on the doctrine of self defence to escape criminal culpability for what he's done."

"You might think that it is both good sense as well as good law that for the purposes of defending himself or another person, a man may do that which is reasonably necessary for the purpose of defence, having regard to all of the circumstances as he genuinely believes them to be at a particular time. So that if he does no more than is reasonably necessary in those circumstances, then the force which he employs is both justifiable and lawful.

Now, if in the circumstances, however, force by way of defence is not called for, or if though some measure of defence is called for and warranted, if the person using force by way of defence plainly oversteps the mark and uses force which is not reasonable in the circumstances, then what he does is unlawful and punishable accordingly."

28 In my opinion the learned trial judge adequately explained the concept of lawful self-defence as embodied in the Code, s46. There is no reason to fear, given his Honour's instruction concerning the onus of proof in relation to self-defence, that the jury was left with the impression that the appellant, if entitled to use force in defence of himself, was only entitled to use the minimum amount of force that would have been sufficient to deflect an attack by the deceased. This ground fails.

29 The jury retired to consider its verdict at 9.53am on Monday 24 June. The previous Friday the learned trial judge had said this:

"Once the jury has gone out to consider its verdict, it is not permitted to separate until it is given its verdict, unless in the unlikely - or hopefully unlikely situation that the jury finds it impossible to agree. Sometimes juries take a long time to reach a verdict and understandably so. It is a very important function that they play, but this sometimes means that a jury has to go to a hotel over night and then come back the next day. I very much doubt if you will need to contemplate that as a realistic possibility on Monday, but just on the off-chance if I were you I would bring along some night attire and make provisional arrangements with members of your family so that you can get a message to them if it becomes obvious as the day wears on that you are going to be a long time with this case."

30 On the Monday afternoon at 2pm the jury returned to ask a question concerning his Honour's direction about the Criminal Code, s157(1)(c), the third basis upon which he had instructed them a verdict of murder might lie. Shortly thereafter they retired again and at 4.30pm his Honour sent for them, saying that having regard to the nature of their question and the elapse of a further 2_ hours, he wondered if they needed any further assistance. The foreman said they had no problems in respect of legal definitions or the like and asked if it was permissible to say they were unable to agree. When told that it was, he said:

"MR FOREMAN: That is the point I wanted to make, that at the moment we are unable to agree and that there is some concern that the possibility of agreement for the purposes of completing things today has surfaced. And whether or not that might lead to somebody making a decision that they might not be comfortable with on later reflection.

HIS HONOUR: I understand your point. Are you suggesting to me that you are feeling the need to have a break until tomorrow, am I reading too much into what you've said? Or is -

MR FOREMAN: That is certainly an option that we have been considering. We were debating the situation when we were called out, your Honour."

31 His Honour then discussed whether they would like to be provided with a hot meal at the Court or would prefer to break, retire to a hotel as foreshadowed and resume their deliberations the following day. After retiring to consider these options, the jury returned and through the foreman indicated that they thought a break overnight would be beneficial. A further three-quarters of an hour elapsed while arrangements were finalised to accommodate the jury at a nearby hotel and after enquiring whether, in that time, they had reached a verdict and being told that they had not, his Honour went through the appropriate formalities and at 5.55pm adjourned the case until 9am the following day. At that time the jury resumed their deliberations and at 9.42am returned with a verdict of guilty.

32 It is submitted that in the circumstances there was an unacceptable risk that at least one juror joined in the verdict for the sake of terminating the proceedings rather than in accordance with his or her oath. I cannot see any basis whatever for such a conclusion. There was a considerable body of conflicting evidence as to the precise sequence of events and it is understandable that the jury would take time to assess it and to make findings. They had been forewarned that they might not reach agreement before the conclusion of a full day's deliberation and that in those circumstances they would be sequestered in a hotel. They were perfectly at liberty to continue their deliberations at the hotel if they wished and it is possible that they did. There is no reason to suppose that the announcement of a verdict forty minutes or so after their deliberations were formally recommenced the next day was indicative that any of them felt under pressure or had compromised his or her oath. Given the request of the jury to take a break overnight after deliberating between about 10am and 4.30pm, there was no need, in my view, to give any instruction, let alone admonition, either that evening or the following morning as to how they should approach the task of reaching a unanimous verdict. In Black v R [1993] HCA 71; (1993) 179 CLR 44, the High Court formulated a direction which was appropriate if the occasion arose to give it. The Court did not attempt to lay down any criteria by which the time such a direction should be given was to be determined. It merely contemplated that the direction might be given to the jury "if it appears that they are encountering difficulty in reaching a verdict" (per Mason CJ, Brennan, Dawson and McHugh JJ at 51) or "in a case where it appears that a jury has been unable to reach agreement after what is, in the circumstances of the particular case, a significant period" (per Deane J at 56). In this case the fundamental rule that a jury must be free to deliberate without any form of pressure being imposed on them might well have been infringed had the learned trial judge given such a direction on the Monday evening, particularly as the foreman had spoken of the possibility of agreement being reached so as to complete the matter at that time, perhaps leading to a decision by some of the jury that they might not feel comfortable with on later reflection. To have given the direction within the first hour of their deliberations on Tuesday morning could well have suggested that the judge thought it was time they made up their minds. The wisest course in the circumstances was to leave it to the jury to return a verdict in their own time unless the lapse of time became inordinate or there was reason to believe that a stalemate had developed. There is no substance in this ground of appeal. I would dismiss the appeal against conviction.

Ground 5 - Alleged Errors of Fact by the Sentencing Judge

(a) The appellant abandoned his complaint against this finding of fact.

(b) It was conceded by counsel for the appellant that this complaint was of significance if ground 1 of the appeal against sentence failed only on the basis that the degree of force used by the appellant was more than what was reasonably justified in the circumstances as he believed them to be, assuming the deceased took a swing at him with an axe. As, in my view, ground 1 did not fail for that reason alone, but failed because there was evidence upon which the jury could find beyond reasonable doubt that the appellant's fatal attack upon the deceased was not an act of self-defence at all, it was open to the learned trial judge to make such a finding himself and to reject the submission that the evidence only supported a verdict of guilty by reason of the use of excessive force in self-defence.

(c) In the course of his comments on passing sentence, the learned trial judge said:

"You were intent on stopping anyone from preventing Nlumstead in carrying out his attack upon Naul Atkins. You were successful in your purpose. I find that [the deceased] retreated towards the clothes line in the back yard. He lifted the axe in a defensive way, using it as a shield in front of his body. You approached him and stabbed him twice; one of these thrusts with the knife entered his heart, causing massive bleeding from which he died. Surprisingly, he was able to surmount a paling fence and cross the road to a neighbour's house before expiring at the front door of that residence."

33 The evidence of the pathologist, it is conceded by counsel for the appellant, left open a finding that the wound to the deceased's arm or elbow was not caused by the same thrust of the knife as the wound to his heart. Counsel submits that the appellant gave uncontradicted evidence that at the time of the fatal stabbing he and the deceased had come together and had both fallen to the ground. He contends that the possibility that the wound to the deceased's arm might have occurred accidentally in this process cannot be excluded and that there was no evidentiary basis for inferring that this wound had been inflicted intentionally. It was not claimed that the fatal wound could not be proved to have been voluntarily and intentionally inflicted. The pathologist referred to the wound to the elbow as a stab wound, but did not regard it as a particularly serious wound. He said:

"I thought this was a relatively superficial wound, though it's difficult - it can be difficult to pass comment on wounds which are in close proximity to bones because - I mean the skin was slightly undermined in this area and it's very difficult to accurately measure the distance of the instrument which caused this in terms of its actual overall depth. I mean the impression I had was that it was not a particularly deep wound. But depth implies it going inwards, I mean the weapon that caused this could have just run up underneath the skin but I think either way it hadn't gone in very far. There was certainly no damage to the bone in that area."

34 One of the hypotheses, in addition to the one action causing both wounds, put to but rejected by him in cross-examination, was that when the fatal wound was inflicted, the deceased had his elbow in a high position and that when the knife was withdrawn, he brought the elbow back down somehow and the elbow and the knife met. It was not put that the non-fatal wound could have been caused as both men fell to the ground after the fatal encounter. Theoretically this possibility may be said to be open, but in the light of the evidence of the surrounding circumstances, including those indicative of active aggression towards the deceased who had retreated a significant distance, I think that a positive finding of a second intentional stabbing motion was open to the learned trial judge. However, even if I am wrong about that, his Honour does not seem to have attributed any great significance to that fact. The pathologist had described it as a relatively superficial wound and I have difficulty in seeing that the existence of a second stab wound to the elbow has led to a greater sentence of imprisonment being imposed for the action of causing the death of the deceased in circumstances amounting to murder. On a previous trial the appellant had been found guilty of assaulting Atkins by virtue of the aid he had given to Plumstead and had been sentenced to one year's imprisonment therefor, a sentence which his Honour determined in the exercise of his discretion should be backdated three months to a date in turn three months after his arrest. The sentence for murder was made concurrent with that sentence. It is difficult to see that had his Honour refrained from finding the stab wound to the elbow voluntary and intentional, any lesser sentence than that in fact imposed for murder would have been likely.

35 In addition to the general complaint that the sentence of twenty years' imprisonment was manifestly excessive, the appellant relies on the fact that it was backdated so as to commence three months after his arrest. Effectively the sentence, if fully served, is one of twenty years and three months' imprisonment. It is said that his Honour did not take the first three months' custody into account and did not say why not. As I have pointed out above, his Honour deliberately made the sentence concurrent with the sentence for assault earlier imposed. He said:

"You are currently serving a sentence of 12 months' imprisonment for the assault upon Paul Atkins. As both events arose out of the same set of circumstances, it would be appropriate that both sentences should run concurrently."

36 He then directed that the sentence should run from 21 November 1995. When he sentenced the appellant for the assault on 28 February 1996, he said (adverting to the murder charge):

"You have been in custody continuously since 21 August 1995 in relation to the remaining charge against you. There is no reason however why your present sentence should not be served whilst you are still in custody awaiting trial on that matter, nor is there any reason why at least part of the sentence should not be made retrospective. I therefore direct that the sentence just imposed take effect on and from 21 November 1995."

37 The coincidence of the date, 21 November 1995, makes it clear that his Honour deliberately chose to backdate both sentences to a point in time three months after the appellant's arrest. Why he chose three months rather than any other period of time is not apparent, but it was clearly within his discretion to do so and no specific error can be demonstrated.

38 Is an effective sentence of twenty years and three months manifestly excessive in all the circumstances? The appellant was 27 years old, he had previous criminal convictions including some for crimes of violence, including one for armed robbery. He went, perhaps out of loyalty to Plumstead rather than with active enthusiasm, to back-up Plumstead in a confrontation which he must have realised would result in violence. He assisted Plumstead by locating the victim and drawing him from the house so that Plumstead, who was lying in wait armed with a weapon, could attack him. He held at bay, by the production of a knife, others who might have intervened and when the deceased did intervene, rather dramatically with the production and use of an axe on Plumstead but then retreated, the appellant followed him and stabbed him in the heart causing his death. While the act causing death was not intended to do so, it was, as the learned trial judge found, intended to cause bodily harm which he at least ought to have known to be likely to cause death in the circumstances.

39 Murder is a very serious crime. This one was not activated by lengthy provocation. It is not suggested that the appellant was affected by alcohol or that it arose out of an unexpected violent confrontation. He may not have anticipated the level of violence to which Plumstead's punitive expedition might give rise; but as it escalated, so he responded with increasing aggression. In my opinion, a sentence of twenty years' imprisonment, backdated as it was so as to operate from a date three months after his arrest, cannot be said to be manifestly excessive. If the learned trial judge did err as alleged in ground 5(b) and I were called upon to pass sentence afresh, I would be minded to impose a sentence no shorter than that in fact imposed, even having regard to the fact that it was not backdated to the day on which the appellant was first taken into custody.

40 I would refuse leave to appeal against sentence.

41. With respect to the appeal against conviction and the application for leave to appeal against sentence, I agree with the reasons for judgment of the Chief Justice and the orders that he would make.

42. The appellant seeks review of his conviction of the crime of murder and for leave to appeal against the consequent sentence of twenty years' imprisonment. The grounds of appeal against conviction are based on claims of unsafe and unsatisfactory verdict, miscarriage of justice arising from reception of inadmissible evidence, misdirection and inadequacy in the jury deliberations.

43 Frederick Plumstead determined to confront a young man, Paul Atkins, with respect to a claimed grievance. He persuaded his wife, Trudy Plumstead, and the appellant to accompany him in that endeavour in order to "back him up". The three eventually arrived at the home of Fay Wilson, the mother of Paul Atkins. The appellant and Mrs Plumstead went to the house and made inquiry of Mrs Wilson, who summoned her son to the door. Thereupon the appellant, purporting to offer a handshake, grabbed Atkins and pulled him into the yard towards a parked van. Plumstead, who had remained concealed, came up to the van and began to beat Atkins around the head and back with a pick axe handle. Other persons, including the deceased, a half brother of Atkins, came out of the house. The deceased, in an attempt to assist his brother, grabbed an axe from inside the door and struck Plumstead a restrained blow. At the time the blow was struck, Atkins was prone, attempting to lessen the impact of the blows being struck by Plumstead. The appellant had produced a knife (the time of production being a subject of contention) and menaced others in order to permit Plumstead to continue his attack. His claim that his conduct was intended to protect Plumstead from counter attack, is central to this appeal.

44 The deceased, having struck a single blow, moved towards a clothes line further away from the van. There he was fatally wounded by the knife wielded by the appellant. The appellant retrieved the axe and he and the Plumsteads quit the scene, discarding both the axe and knife some little distance away. There was no issue that the appellant had caused death. His primary argument at trial was that he had simply attempted to protect Plumstead and wielded the knife in response to a further threatening movement of the axe by the deceased.

"1 The verdict of the jury was unsafe and unsatisfactory because it was not reasonably open to the jury to be satisfied beyond a reasonable doubt that the appellant, when he inflicted the fatal stab wound, did not do so in defence of himself using only such force as, in the circumstances as he believed them to be, it was reasonable to use."

46 The court is required to make an independent assessment of the evidence (Chidiac v R (1990 - [1991] HCA 4; 1991) 171 CLR 432) although in this case the central issue concerns the quality of evidence. In Morris [1987] HCA 50; (1987) 163 CLR 454, the High Court was concerned with a conviction dependent, almost entirely, on an admission of guilt by a brain damaged alcoholic. In M v R [1994] HCA 63; (1994) 181 CLR 487, the court was similarly concerned with the quality of the evidence of a complainant which was almost the sole evidence and which was made suspect by cogent extrinsic material. In both cases the question of quality was referable to the inherent reliability of the account given by the victim or the accused. If the central tenet be unreliable, then the surrounds, however honest, do not afford safety. It may be different in a case, circumstantial in nature (Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521) which require specific directions and the adoption of a particular reasoning process. But here the central tenet was not in dispute.

47 The appellant brought about the death of another. The question was whether he was justified in so doing. The test of quality of evidence is not identical to that referable to identity (Carr v R [1988] HCA 47; (1988) 165 CLR 314) or occurrence (M v R (supra)), but relates to the sequence or interaction of events providing justification. Given that an accused's version of events proffered to a jury is not necessarily conclusive of his or her innocence, the question for a jury is one dependent upon an evaluation of surrounding circumstances. Those surrounding circumstances may be described by witnesses to the event. In this case, the jury were required to consider the state of mind of the appellant at the time he wielded the blow and whether the surrounding circumstances made it reasonable to act in the way in which he did. In this case, there were a number of witnesses who gave varying but basically consistent versions. Counsel sought to elevate variance to incompatibility. It is natural that persons observing a rapid sequence of events, especially attended by violence or horror, concentrate on, or record different aspects of physical conduct. It is well demonstrated that recall of precise detail is either flawed by emotional response or distorted by interpretation. But general consistency by a variety of onlookers remains a reliable method of determination. To do otherwise would be to deny the validity of the jury process. Accepting differences, judgment is made according to the perception of those recounting the events. That is the strength of the criminal justice system dependent upon a jury. The process requires an interaction by the jury with the witness recounting the event, a process which is, in part, intuitive and in part, based on reason. An appellate court ought to test "quality of evidence" with an acknowledgment of the duality of that process performed by a jury. That acceptance would appear to accord with the observations of Brennan J (as he then was) in M v R (supra) where he said at 502:

"The question whether a jury, acting reasonably, must have entertained a reasonable doubt about guilt remits to the appellate court an inquiry into all the evidentiary aspects of the case. But the jury have advantages in the finding of facts which are denied to an appellate court. As Dawson J pointed out in Whitethorn [1983] HCA 42; (1983) 152 CLR 657, at p 687:

'In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot.'

Moreover, in making its evaluation of the case against an accused, the appellate court must acknowledge that the primary responsibility for finding the facts rests with the jury, not with the appellate court. As Mason CJ said in Chidiac (1991) 171 CLR, at p 443; see also Chamberlain v R [No 1] [1983] HCA 13; (1983), 153 CLR 514, at pp 519 - 520; Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521, at p 608:

'The constitutional responsibility of the jury to decide upon the verdict and the advantage which the jury enjoys in deciding questions of credibility by virtue of seeing and hearing the witnesses impose some restraints upon the exercise of an appellate court's power to pronounce that a verdict is unsafe.'

And so, for both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict."

48 The fact that close examination of the transcript shows some inconsistency between witnesses does not lead to the conclusion that the jury could not have reasonably arrived at a finding of guilt. This is especially so where the state of mind of the accused is central to any verdict. If on the evidence the accused could be said to posses a requisite mental state, although its precise manifestation was in issue, then a conclusion of culpability could not be said to be unsafe (Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, Brennan J at 403). Although there is some controversy about the efficacy of demeanour evidence (see Oral v Written Evidence: The Myth of the "Impressive Witness" by Re (1983) 57 ALJ 679), the mere fact that review of the evidence by an appellate court indicates that another conclusion could have been reached does not amount to the determination that the verdict was unsafe. As Fitzgerald P and Lee J stated in their joint judgment in R v Charles [1994] 1 Qd R 597 at 600-601:

"Other than in the exceptional circumstances to which reference has been made in which background circumstances are sufficient in themselves to disqualify testimony from being a satisfactory basis for conviction, the ultimate focus must be on the evidence given by the critical witness at the trial. Any inherent improbabilities, contradictions, inconsistencies or lack of detail in evidence may be given added significance by the general background of the witness. It is deficiencies in the nature and quality of the evidence given at the trial, set in the context of the background circumstances, which must ordinarily provide the justification if an appellate court is to interfere."

49 The approach to be taken is that set out by the New South Wales Court of Criminal Appeal in R v Dellaptrona (1993) 31 NSWLR 123 at 141, namely:

"In making that assessment [of the sufficiency and quality of the evidence], this Court does not, of course, have the advantage of seeing the witnesses themselves, and the loss of that advantage necessarily imposes a restriction upon its ability to make that assessment: Chidiac v The Queen (at 443-444, 453, 459). Where the attack upon the Crown case depends largely upon the credit of a vital Crown witness, and where there is no defect in that credit reasonably apparent from the transcript itself (such as admissions made or conflicts left unresolved), this Court will infrequently be able to conclude that the jury ought to have had a reasonable doubt as to the guilt of the accused: R v Masters (1992) 26 NSWLR 450 at 467-468; R v Chai (1992) 27 NSWLR 153 at 199 (special leave to appeal refused by the High Court). The reference to the absence of any defect in the credit of a vital Crown witness apparent from the transcript does not, however, mean that the verdict will be held to be unsafe and unsatisfactory simply because an attack upon the credit of that witness is apparent from the transcript: R v Visser (Court of Criminal Appeal, 6 November 1991, unreported) at 12-13. Very few trials are free from attacks upon the credit of a vital Crown witness. Everything depends upon the circumstances of the particular case, including the nature of the attack, its vitality and its proximity to the particular issue to which the evidence was relevant: R v Kady (Court of Criminal Appeal, 18 June 1993, unreported) at 15-16."

50 The test formulated by the High Court in R v M (supra) is that it is for an appellant to persuade the court that the verdict was not reasonably open to the jury. If a reasonable doubt is experienced by the appellate court then such doubt is one which a jury ought to have experienced. Where there is advantage in the seeing and hearing of the evidence an appellate court ought to pay due regard to that advantage so that its test is whether the evidence lacks credibility by reason other than that of the manner in which such evidence was given. In considering, from the record, discrepancies, inadequacies or inconsistencies, the court should make full allowance for the jury process and intervene only if there is sufficient possibility that the verdict is unsafe. That possibility may be more readily entertained where the conviction is dependant on a specific piece of evidence such as identification or confession, or in the case of circumstantial evidence where it is clear that a rational hypothesis consistent with innocence was open.

51 The evidence in this case does not warrant a conclusion that the jury ought to have experienced doubt as to whether the appellant was acting in self-defence. There was no issue that it was the appellant who brought about death. There was no doubt but that he had gone to the premises as a party to potential violence. The jury was entitled to:

- pay regard to the initial aggressive conduct of the appellant and his companion and to the restraint exercised by the deceased in his use of the axe; - accept the evidence of the witness Miller; - pay regard to where the victim was last seen and of the physical ability of the appellant to retreat; - make allowance for incompleteness in the account of eye witnesses on the basis that they were pre-occupied with the struggle between Plumstead and Atkins; - form an opinion of the credibility of the appellant by reference to his differing accounts given to interviewing police and to the jury during the course of the trial. If the jury did not accept him as a witness of the truth (and such was reasonably open to them) then much of any evidentiary foundation (allowing for the onus of proof) relevant to the issue of self-defence had no existence.

"1 The verdict of the jury was unsafe and unsatisfactory because it was not reasonably open to the jury to be satisfied beyond a reasonable doubt that the appellant, when he inflicted the fatal stab wound, did not do so in defence of himself using only such force as, in the circumstances as he believed them to be, it was reasonable to use.

1A A miscarriage of justice occurred because hearsay evidence was led from the witness Mark Wescombe that Frederick Plumstead had told him that 'he'd went round there to beat this bloke up because he'd stolen some of his stuff out of his house', and that 'this bloke had been livin' in his house while he was in goal [sic], with his wife, and when she moved to her mother's ... he stole some furniture and stuff', when no questions were asked as to the reaction of the appellant upon Plumstead saying those things.

2 A miscarriage of justice occurred because the jury learned from an answer given by the appellant in cross-examination that Trudy Plumstead had once said that the appellant pulled Paul Atkins out of the doorway at 11 Mason Street, Claremont, when no questions were asked as to the context of her having said that, nor as to the reaction of the appellant upon hearing her say that or learning that she had said that."

54 Following the incident, the appellant went with the two Plumsteads to the home of his brother. There Plumstead gave a brief account of what had occurred, doing so in terms of his own conduct. Such evidence was admissible but of little weight since it was only the appellant's reaction to the account which was relevant on his trial. The jury was not permitted to make use of the evidence of the brother in a direct way. The learned trial judge in the course of his summing up directed the jury in the following terms:

"But you will remember that when we heard from the accused's brother Mr Wescombe, questions were asked of Mr Wescombe as to what Fred Plumstead had been saying at Mr Wescombe's home at Otago Bay, and Mr Wescombe told us that Plumstead told him that there'd been a fight and he'd been to beat this bloke up because he'd stolen stuff from the home and that he got hit in the back with an axe and that he inspected that wound and so on.

Well now, as I've told you already - as I've reminded you already - we have not heard any evidence from Plumstead. What he says out of court, that is, not in the witness box about what occurred or why he went or why he did anything, is not evidence of that fact that you can act upon. To do that, if you were to accept what Plumstead had told Wescombe as evidence of the facts that Plumstead was talking about, you would be using that evidence in what we call a hearsay way. You would be using it to establish the truth of the utterances made by Plumstead. In this case, you are not entitled to do that. Mr Bugg was entitled to ask questions about what Plumstead might have said because the evidence was - and I don't think it's contradicted - that the accused man was present at the time and therefore his reaction and his response to what his friend Plumstead was saying, might have been of some relevance in the case. As it transpired, I don't think he gave any evidence of a particular reaction - that is Mr Wescombe I don't think gave any evidence of a particular reaction by his brother. So you would not be entitled to use the evidence of Plumstead's conversation with him to establish the truth of any of the matters of which Plumstead was speaking. So you must be very careful about that."

55 The direction was sufficient to prevent misuse of the evidence. The account given by Plumstead was in general terms only and related to his own reasons for going to the Wilson property. Given that it was the appellant's case that he had gone with Plumstead to provide at least moral support, there can be no prejudice to his case given the nature and extent of the direction.

56 The second "hearsay" ground concerned the cross-examination of the appellant during the course of the trial. He was asked about an account of events given by Trudy Plumstead at the earlier trial of Plumstead and was asked whether he disagreed with her account. He denied her version. The evidence was that of his answer not of the proposition expressed in the question and attributed to another. The question could have been properly expressed in the form, "What do you say to the proposition?" Its prejudice was in asking the appellant to agree to its having been made by another, and such ought not to have been done. The learned trial Judge dealt with the question in the following terms:

"Then similarly, Mr Bugg asked the accused whether Trudy Plumstead had said on an earlier occasion that he, the accused, had pulled Paul Atkins from the doorway, and the accused agreed that that had been said, but he - I think - I'll just check on that - Q: 'Did you know that Trudy Plumstead had said that you pulled this man out of the doorway? ... Yes, I heard that.' 'Did you speak to her about it? ... No.' 'She was there? ... Yes, she was there.' 'But that's what she said though, isn't it? ... Yes.' 'You would disagree with that? ... Yes.' 'You would disagree with Mr Atkins when he says that as well? ... Yes.' Well now, Mr Bugg was entitled to ask the accused whether he had had any particular reaction to something that Trudy Plumstead had said and if there had been any such reaction that would be something you'd be entitled to take into account, but you would not be entitled to rely on anything that Trudy Plumstead might have said out of court on some occasion which is not specified, about whether or not Atkins had been pulled from the house by the accused. To use that evidence in that way would be totally impermissible. So you can hear the proposition put, you can judge what the accused's reaction to something that he's heard from someone else might be, and whether that illuminates his conduct in any way, is a matter for you. But you can't use something that's been reported as having been said out of court by someone such as Trudy Plumstead or Fred Plumstead for the purpose of proving or corroborating that, for example, Atkins had been pulled out of the door by the accused. Her evidence can not be used in that way and must not be used in that way."

57 In my opinion, the direction of the judge was sufficient to meet any potential prejudice arising out of the form of questioning. Ground 2, alone, cannot be sustained as warranting the upholding of this appeal.

"There was an unacceptable risk that the verdict was reached by some process other than true agreement in conformity with the jurors' oaths and affirmation, given that the jury deliberated upon their verdict from about 9:50 am until about 6:00 pm on the 24th June, 1996, reached a stage at about 4:30 pm on that day when further deliberation that day or night was likely to be unproductive, were 'locked up' from about 6:00 pm that day until about 9:00 am the following day, and returned a unanimous verdict of guilty at about 9:40 am that following day."

59 The trial had been conducted over five days. A significant number of eye witnesses had been called and the jury was required to give consideration to the complexities of the interrelationship of the Criminal Code ss156, 46 and 157. On the Friday preceding the verdict, the learned trial judge had forewarned the jurors that they would not be permitted to separate once they commenced deliberations and that, as a matter of prudence, they might care to prepare for the possibility of being sequestrated on the Monday evening. The jury retired to consider its verdict at 9.53am on Monday, 24 June. At 2.00pm the jury returned in order to ask a question concerning the import of the Code, s157(1)(c). At 4.30pm the foreman, in answer to an offer of assistance by the learned trial judge, advised the court that whilst there were no problems with the directions of law, that:

"... at the moment we are unable to agree and that there is some concern that the possibility of agreement for the purposes of completing things today has surfaced. And whether or not that might lead to somebody making a decision that they might not be comfortable with on later reflection."

60 To that fair and unexceptional statement his Honour asked:

"I understand your point. Are you suggesting to me that you are feeling the need to have a break until tomorrow, am I reading too much into what you've said? Or is -

"That is certainly an option that we have been considering. We were debating the situation when we were called out, your Honour."

61 Then followed a discussion about practical arrangements and the jury was placed in the care of officers of the court and the case adjourned at 5.55pm. The jury resumed its deliberations at 9.00am on 25 June, and returned its verdict at 9.42am. The following should be first observed:

- The jury could not return a majority verdict of acquittal or manslaughter in less than six hours. That period had barely elapsed. - The jury returned so as to permit the trial judge to offer any assistance. It was not recalled in order to be asked if a verdict had been reached. - The jury itself raised the possibility of requiring further time without pressure or constraint which could, on reflection, leave one or more jurors with a sense of unease.

62 The learned trial judge did no more than afford the jury an opportunity to conduct its deliberations without pressure or tiredness (R v McKenna R v McKenna R v Busby (1960) 1 All ER 326). There was no exhortation to reach a verdict within a particular time frame (Shoukatallie v R [1962] AC 81, R v Rose and others (1982) 2 All ER 536, Smith v R (1985) 18 A Crim R 325), nor did the learned trial Judge take any course contrary to that required by the High Court in Black v R [1993] HCA 71; (1993) 179 CLR 44. The resumption of the jury's deliberations on 25 June did not require any further directions. There was no exhortation to reach a verdict or requirement to continue deliberations (Maher v R (1986) 21 A Crim R 316) nor should there have been any precipitate enquiry as to the basis of any disagreement (Foster v R (1995) 78 A Crim R 517). The approach taken by the learned trial judge was fully consistent with respect to an understanding of the role of a jury. The jury was responsible for the verdict, and, subject to questions of illness, fatigue or wrongful interference, it should be left in charge of its own time for deliberations.

64 I have had the advantage of reading in draft form the reasons for judgment of the learned Chief Justice in relation to Grounds 2A and 3 of the Notice of Appeal. I agree with his conclusions and there is nothing further that I can usefully add.

"5 The learned trial judge for the purposes of sentencing the appellant made findings of fact that were not reasonably open to him to the effect that:

...

(b) the appellant was not acting in self-defence; and

(c) the appellant stabbed the deceased twice."

66 In my opinion, the findings were open to the learned trial judge and certainly did not run counter to the jury verdict. It was consistent with the evidence that the victim, having attempted to assist his friend, retreated in the face of the display of the knife by the appellant. The appellant pursued, and at the time of the infliction of the fatal blow, there was no action on the part of the deceased which posed an immediate threat to Plumstead. At best, the action of the appellant was of the nature of a pre-emptive strike. If such findings were open (and they clearly were), then it was equally open to find, at the time the fatal blow was struck, the appellant was not acting in self-defence, albeit unjustified. It does not follow that because the appellant, at an earlier stage, had intervened to allow Plumstead to continue his assault, he was still so acting when he pursued the deceased. A finding of excessive force might have been possible but was not inevitable. In so far as the finding that two blows were struck, examination of the evidence of Dr Lyons clearly shows that such a finding was not only open but almost inevitable. In his evidence, Dr Lyons stated that on examination he found two distinct wounds:

"The presenc[sic] of two wounds on the back of the heart I commented on; I thought it was either due to the actual movement of the heart in its pumping action or possibly because the weapon which had caused this injury may have been withdrawn and gone back in to that area, thereby causing two cuts in that area.

So at the front of the heart from the position of entry you have one wound ... That's correct.

In the left ventricle, but at the back of that chamber there are two exit wounds? ... That's correct, yes.

So what you're saying is that in your opinion that was caused by a second movement so that the knife has gone through but not been completely extracted and then gone through again? ... That's correct, yes, and - sorry, do you wish me to -"

67 It was open for the learned trial judge to reject the version given by the appellant and give effect to the opinion evidence of Dr Lyons that there were two distinct movements of the knife wielded by the offender. It may be that the learned trial judge was referring to a further injury caused to the arm or elbow which was not caused by the same thrust as that which caused the wound to the heart. If such is the reference, then the finding was open and displaces the appellant's version of his conduct. The displacement further affects the degree of culpability of the appellant. The fatal blow was not a product of a single unthinking manoeuvre. In any event, the issue of a separate blow to the arm would have had little significance in the determination of penalty. The ground is not sustainable.

68 The remaining ground on which leave to appeal against sentence is sought is that the sentence was manifestly excessive. As part of the argument, a further complaint was made that it had been backdated so as to commence three months after the date of arrest. The decision to backdate the sentence to a date other than the date of arrest was doubtless influenced by the fact that the sentence was ordered to be served concurrently with one of twelve months' imprisonment imposed upon the conviction for the assault of Atkins committed shortly before the act of murder. The basis on which the date was determined was not clear, but such was clearly within the discretion and does not constitute error.

69 The appellant was sentenced to a term of imprisonment for a period of twenty years. An examination of penalties imposed for the crime of murder following the amendment to the Criminal Code, or with respect to those persons who sought re-sentence indicates a range of between fifteen years and life imprisonment. The appellant's culpability is great. Although not the instigator of the confrontation, he was quick to display aggression and his conduct in pursuing the victim, who had simply attempted to protect a friend from a vicious assault, displayed an indifference to the life and safety of others. He was aged 27 and had prior convictions for violence. In my opinion, the sentence imposed was appropriate and could not be said to be manifestly excessive.

70 I would dismiss the appeal and refuse leave to appeal against sentence.