Stanton v The Queen P117/2002 [2003] HCATrans 667 (9 April 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P117 of 2002

B e t w e e n -

KENNETH FRANCIS STANTON

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 APRIL 2003, AT 10.19 AM

Copyright in the High Court of Australia

MS G.A. ARCHER: May it please the Court, I appear for the appellant in this matter. (instructed by Legal Aid Western Australia)

MR S.E. STONE: May it please the Court, with MR C.C. PORTER I represent the respondent. (instructed by Director of Public Prosecutions for Western Australia)

GLEESON CJ: Yes, Ms Archer.

MS ARCHER: Your Honours, the first issue that arises in this appeal is whether the trial judge did misdirect the jury. The directions of which complaint is made are set out in volume 1 of the appeal book at pages 217 and 224. They are also extracted in the appellant's submissions at paragraphs 11 and 13.

The directions are criticised for three reasons. The first of those is that the directions reversed the onus of proof. As is set out in the appellant's submissions at paragraphs 20 and 21, it is submitted that there is a difference between directing jurors that they cannot consider a lesser offence unless they are unanimously of the opinion that the crime of wilful murder had not been committed, as the learned trial judge did, and directing them that they cannot consider a lesser offence unless they are not satisfied beyond reasonable doubt of wilful murder. It may seem to be a fine distinction but it is a fundamental one because it implies that there is some onus of proof to be unsatisfied and fails to recognise the difference between a lack of satisfaction and positive non-satisfaction.

GLEESON CJ: What do you mean by "consider"?

MS ARCHER: "Consider" in the judge's charge is something that is criticised because it is said to dictate the order in which the jury had to consider its deliberations. Those are the words that the trial judge used. That is why the appellant is referring to it in that way.

GLEESON CJ: But are you talking about what is going on inside the heads of individual members of the jury or are you talking about their formal conclusions?

MS ARCHER: At this stage of the argument all that is being addressed is the impact on their heads, if your Honour pleases.

GLEESON CJ: They would presumably start considering their verdict, or start thinking about the issues in the case, from the time somebody tells them what the case is all about.

MS ARCHER: That is correct. Yes, your Honour. The focus of this criticism is directed at the jury being told that they cannot find the appellant, or the accused as he was then, not guilty of wilful murder unless they were satisfied that wilful murder had not been committed.

Perhaps if I can illustrate this by use of an example, there is a difference between a person not being satisfied that God exists and a person being satisfied that God does not exist, and it is the appellant's submission that the jury here were prohibited from acquitting of wilful murder unless they were positively satisfied that wilful murder had not been committed. Although in one sense in logic it sounds the same way as saying it correctly, because of the fundamentals of the burden of proof being on the Crown it is an error.

Another example, taking it to the other side of the coin, is that a judge could properly direct a jury that unless they are satisfied beyond reasonable doubt they must not convict, and nobody could complain about that, but what a judge could not say is you must convict unless you are not satisfied beyond reasonable doubt.

Now, in logic, those two are contra-positives, so in logic if one is true so is the other, but the second direction could not be given by a trial judge to a jury because it would reverse the onus of proof and that is the complaint that is made about what the judge here said. It may be that a juror lacked satisfaction beyond reasonable doubt that wilful murder had been committed. If all of the jurors were in that position they would not have been able to acquit if they followed the trial judge's directions, because what his Honour was saying in this passage is you cannot acquit unless you are positively satisfied that wilful murder has not been committed, and that is a fundamental reversal of the onus of proof.

It may be, at the end of the argument, that when that is taken into context with the other directions the Court may form the view that overall the jury could not have been misled, but that relates to the proviso issue. Whether or not this was a misdirection simply is to be addressed looking at those words, and looking at those words it is a reversal of the onus of proof.

GLEESON CJ: On page 217 at line 29 he did not say "If you are unanimously of the view that the crime of murder has not been committed". What he said was:

If you are unanimously of the view that the crime of murder has not been proved -

MS ARCHER: That is correct, your Honour. At the top of that page at point 5 is the first direction. His Honour has explained to the jury what wilful murder means, then his Honour says:

As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed.

GLEESON CJ: Ms Archer, I know it is not relevant in this case but would you just remind us of the difference in Western Australia between wilful murder and murder?

MS ARCHER: Certainly. Wilful murder is an unlawful killing with an intention to kill and murder is an unlawful killing with an intention to do grievous bodily harm.

GLEESON CJ: Do you have a concept of felony murder?

MS ARCHER: No, your Honour.

GLEESON CJ: Thank you.

McHUGH J: I am not sure that is quite right, is it, because one of the definitions of murder is:

If death is caused by means of an of an act done in the prosecution of an unlawful purpose - - -

MS ARCHER: The phrase "felony murder" is not used in the Western Australian courts to describe that. That would be called a "murder" and the Crown would put section 8 in the marginal note of the indictment so that everybody knew what was being discussed, common purpose.

GLEESON CJ: The reason the distinction between lawful murder and murder is not relevant in this case, as I understand it, is that if he had an intent to do anything it was an intent to kill. It could not have just been an intent to cause grievous bodily harm.

MS ARCHER: I think, on the facts, that is correct, your Honour.

GLEESON CJ: Bearing in mind the nature of the implement he was using.

MS ARCHER: Yes, and the distance between the alleged victim and him. For completeness, perhaps I can point out that there are moves afoot in the Parliament of Western Australia to abolish the distinction between wilful murder and murder.

CALLINAN J: It has been done in Queensland, which has the same Code.

MS ARCHER: Yes. The error that the learned judge fell into in this regard, in the appellant's submission, is an error that is commonly made when talking about what a jury needs to be satisfied of and lack of satisfaction, and sometimes before this Court counsel will talk about an acquittal indicating a positive dissatisfaction of the complainant's evidence, for example, when all it may mean is that the jury lacks satisfaction of the complainant's evidence. It is very important that those two concepts are kept distinct. By requiring the jury to come to a verdict on wilful murder in the strong terms that his Honour used, that reinforced the idea that there was some positive state of satisfaction that was required before one could acquit of wilful murder, rather than simply lacking satisfaction of proof beyond reasonable doubt.

It is submitted that the respondent's submissions fall into the same error, and I am referring specifically to paragraphs 20 and 23. Both of those paragraphs refer to the jury being required to reach unanimous determination of guilt or innocence. The last sentence of paragraph 23 of the respondent's submission asserts that "the decision in Beaven v The Queen suggests" - and it is set out and the concluding phrase is:

such a verdict is preceded by a unanimous finding of innocence with respect to the principal charge.

Two authorities are cited for that proposition in footnote 19 and neither of those authorities do support that a unanimous finding of innocence is required. What is required is a unanimous lack of satisfaction.

HAYNE J: Are the statements to which you draw attention there and which you criticise accurate if, instead of references to guilt or innocence, reference were made to the verdict which a jury would return?

MS ARCHER: Yes, your Honour. So in relation to the reversal of onus proof, the point cannot be improved by repeating it. It is simply that what is required to acquit a person of a charge is not a positive state of finding that the offence had not been committed but rather a lack of satisfaction.

McHUGH J: But what do you say about the further direction on page 217 at line 29? What is the matter with that direction?

MS ARCHER: That is less obviously a problem, but it is still a problem for this reason, your Honour. The beginning of that phrase is:

If you are unanimously of the view that the crime of murder has not been proved -

which again is suggesting a positive state, a view, a positive state, rather than saying, "If you unanimously lack satisfaction", which could not be criticised. But to say, "If you were unanimously of the view", is again suggesting that there is a positive state of satisfaction to be reached in respect of a not guilty verdict.

GLEESON CJ: It is the direction at line 29 that we are concerned with, is it not?

MS ARCHER: It is the direction at line 5 and at line 29, both of those directions.

GLEESON CJ: Why are we concerned with line 5?

MS ARCHER: Line 5 is:

you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed.

GLEESON CJ: That may have been a slip of the tongue, but everybody has agreed here that murder was not a realistic possibility, are they not?

MS ARCHER: That is correct, but what the learned judge is there saying to the jury is, "You cannot acquit of wilful murder unless", and it is that that the appellant complains about. Had it been the situation that the jury retired and at some point during their deliberations all of them lacked satisfaction beyond reasonable doubt of wilful murder, they could not have returned a verdict of not guilty if they followed his Honour's directions.

GLEESON CJ: So we are concerned with the directions on page 217 both at line 5 and line 29.

MS ARCHER: That is correct, and also the judge's answer to the jury's question at page 24, which is at about line 42.

CALLINAN J: Ms Archer, does this mean that the judge told the jury that they had no right to be in disagreement, although nobody on the jury had any right to disagree with respect to the more serious count?

MS ARCHER: No, your Honour, I do not think I can put it as highly as that.

CALLINAN J: Why not? That is literally what was said, was it not:

unless you were unanimously of the opinion that the crime of wilful murder had not been committed.

MS ARCHER: I see your Honour's point. It is certainly the case that - - -

CALLINAN J: Does that not mean that they are being told that they may not disagree on the more serious count?

MS ARCHER: It is certainly telling the jury that they must come to a verdict in respect of wilful murder. That is certainly the case.

CALLINAN J: That is not the law. They can disagree.

MS ARCHER: Yes. The appellant certainly agrees with that and that is a result, if you like, of the problem with the direction that his Honour gave to the jury.

GLEESON CJ: What, in your submission, would be the consequence of disagreement on the wilful murder charge?

MS ARCHER: If the jury disagreed, having been properly directed, as to what was required to acquit, then they would not be able to return a verdict, your Honour.

CALLINAN J: Of any kind?

MS ARCHER: No, your Honour.

GLEESON CJ: So there would be a new trial presumably?

MS ARCHER: Yes. The jury would be discharged. The way it works in practice, of course, is that the jury is given a certain amount of time and if they fail to reach a verdict, the judge will bring them back in and issue them with the Black direction, but if they are unable to reach a verdict, then they are discharged. There is provision for that in the Criminal Code of Western Australia.

CALLINAN J: Just assist me on the Black direction.

MS ARCHER: The direction that tells the jury to listen to one another and consider the opinions of the others without exhorting them to sacrifice their own views.

GLEESON CJ: As long as it does not put undue pressure on them to agree?

MS ARCHER: That is correct, your Honour, yes; that is precisely so.

GLEESON CJ: That exhortation to take account of the views of other members of the jury is not without some practical significance in relation to this problem.

MS ARCHER: It is certainly not and it also raises its head in the issue of whether the judge unnecessarily fettered the jury by dictating the order of their deliberations. The principles that were elucidated in Black come to the fore in that case. Those are the appellant's submissions in relation to the reversal of onus point. The next issue is whether the judge's directions remove the power of the jury to return an incorrect verdict and, as the cases describe it, a wrong verdict.

GLEESON CJ: This is where Black becomes relevant, is it not? A verdict is not necessarily a wrong verdict if all that some jurors are doing is yielding to the views of others.

MS ARCHER: That is certainly true, your Honour. It is relevant on this point and also on the point of the dictating of the order of the deliberations, which is the third point.

GLEESON CJ: A juror who says, "Look, left absolutely to my own devices I'd convict this person of wilful murder but I'm very impressed by the fact that other jurors see it differently and I'm prepared to yield to their view", is not doing anything wrong, is he or she?

MS ARCHER: Provided that the juror is actually persuaded to change his or her mind. Jurors would not be doing their duty if they simply said, "Well, I'm not satisfied beyond reasonable doubt but everybody else seems to be and they're cleverer than I am, so I'll go along with them". They would have the power to do that but they would be breaching their duty if they did. But a juror can certainly say, "Having listened to what everyone else says, that has removed my doubt and I am persuaded and I will agree".

HAYNE J: Now, the jury were told here at the top of 222 what would happen when they indicated that they had reached a verdict. I take it you have no cavil at what they are told there, namely that they will be brought back and asked whether they have reached a verdict on wilful murder and that verdict is taken if, but only if, it is a unanimous verdict.

MS ARCHER: That is correct, your Honour. The appellant has no difficulty with that.

HAYNE J: Yes.

MS ARCHER: Turning then to the removal of power issue, there is no doubt that the jury has the power to deliver a wrong verdict and by that the jury has the power to acquit a person even if they are satisfied beyond reasonable doubt. In the appellant's submissions at paragraph 22 a number of authorities are set out in respect of this issue, but I wish to take the Court to only two of them.

The first is MacKenzie v The Queen 190 CLR 348. The first relevant passage is at page 367 of that decision in the judgment of Justices Gaudron, Gummow and Kirby, and Justices Dawson and Toohey agreed with that judgment on this point. The relevant passage begins on line 16 of page 367, about a third of the way down the page where the word "Alternatively" is written down to the end of point 4 which goes over to the top of page 368. There is a further passage at page 370 at line 14, about a third of the way down the page, to the end of that paragraph.

GLEESON CJ: Yes.

MS ARCHER: The next authority to which the appellant refers is Gammage v The Queen [1969] HCA 68; 122 CLR 444. The first passage to which I would refer is in the judgment of Justice Kitto at page 453 commencing in the second paragraph on that page that begins "But the power of the jury" right through to the end of his Honour's judgment.

GLEESON CJ: It is really the last complete sentence on page 453, beginning with the words "The common law".

MS ARCHER: Yes, your Honour, that summarises his Honour's position. The beginning of the passage is simply repeating the proposition that the jury have a power that "is subject to no legal condition" and the reason why his Honour was talking about that was his Honour was illustrating that the particular provision that was under consideration in that court, which was section 23(2) of the Crimes Act, did not alter the position at common law in respect to this power that juries have.

GLEESON CJ: I think it is suggested against you that the view expressed in the last complete sentence on page 453 is different from the view expressed by Justice Menzies, is that right?

MS ARCHER: Justice Menzies' view is less favourable but not entirely against the appellant, but the judgment of the Chief Justice is against the appellant, and I will take the Court to that in a moment once I have taken the Court to the other references.

HAYNE J: But what do we get out of Gammage which is directed largely, perhaps not entirely, to what used sometimes to be referred to as the so-called constitutional right of a jury to return a verdict of manslaughter, even if satisfied of murder? What is the proposition that you seek to distil from Gammage?

MS ARCHER: The proposition is that because a jury has a power to acquit even if satisfied beyond reasonable doubt, what the trial judge here did was take away that power. Now, his Honour could have directed them that it was their duty not to acquit unless they lack satisfaction beyond reasonable doubt, but the implication of his Honour's words were that they had no power to do otherwise and the authorities say that a direction that tells a jury that they do not have the power to return a wrong verdict is a misdirection.

GLEESON CJ: So you are going to bring us back to Gammage?

MS ARCHER: I will continue with Gammage for the moment if I can just illustrate the references. In the judgment of Justice Menzies the relevant passages are at page 460. What his Honour is essentially saying is that it is a misdirection to tell the jury that they cannot convict of manslaughter, but a judge does have the power to say to a jury:

if they do find all the elements of murder established, although they have the power to return a verdict of manslaughter, they would fail in their duty . . . were they to return such a verdict -

So although his Honour is not as fully supportive of the appellant's submissions as the other judgments, apart from the Chief Justice's judgment which is against us, his Honour is there acknowledging that the judge would be saying, although they have the power to return a verdict of manslaughter - - -

McHUGH J: But why is any of this common law learning relevant under the Code? You see, the doctrine for which you are contending and the doctrine that was upheld in New South Wales for some years as a result of Stone's Case back in 1956 arose from the fact that the difference between murder and manslaughter at common law was not the difference between two distinct felonies, but the difference between two descriptions of the one felony. There was one felony. Historically, it started off as an unlawful killing and in the early common law, once the Crown proved a killing, then everything else was admitted only as an excuse or justification or exculpation and the onus was on the accused. It was not until Woolmington's Case in murder cases that that notion was rejected.

So it is understandable that on an indictment for murder the jury could bring back a verdict of manslaughter because it was the one felony. But under the Code, you have separate offences. You have an offence of wilful murder under 278; you have ordinary murder under 279; and then under 280 you have this negative assertion that:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter.

But you have three different felonies under the Code. So where does it come about that the jury has a power to reject a charge of murder when it has been established?

MS ARCHER: The authorities indicate that this power is available even under Code jurisdiction.

McHUGH J: Yes, but what is the source of the power?

MS ARCHER: From the common law. That is what the courts have said.

McHUGH J: Well, that is the misunderstanding of legal history.

MS ARCHER: In the case of Murray v The Queen [1962] TASStRp 18; [1962] Tas SR 170, which is cited in the appellant's submissions, there is a dissenting judgment that entirely supports your Honour's position and that is the judgment of Justice Crawford and his Honour in that case held that the power was excluded by the Tasmanian Criminal Code. But his Honour was dissenting in that case, and subsequently a decision of three judges in Tasmania formed a different view, and that was in the case of Frost v The Queen [1969] TASStRp 20; [1969] Tas SR 172.

McHUGH J: And what does it say, what does Frost decide?

MS ARCHER: The judgment of the Chief Justice - the relevant passage is at page 174 of that judgment - his Honour agreed with Justice Crisp on the relevant grounds and explicitly acknowledged the availability of merciful verdicts under the Tasmanian Code. The passages in Justice Crisp's judgment are at page 182, 184 and 189. His Honour Justice Crisp said that the jury had:

the right to return a verdict of manslaughter dehors -

outside the scope of the evidence:

a right which is now too firmly established to be questioned -

and that is at page 189.

GUMMOW J: But is that the substance of the reasoning?

MS ARCHER: The substance of the reasoning was that the position at common law was not extinguished by the provisions of the Tasmanian Criminal Code.

GUMMOW J: What did Justice Crawford say about that?

MS ARCHER: His Honour disagreed.

GUMMOW J: Yes, I know, but what did he say? None of this binds us, so - - -

MS ARCHER: No. Justice Crawford's view was based on the fact that the Code covered the field on the rights of the jury and that if the right could not be found in the equivalent provisions of the Code then they could not find the right elsewhere - the power elsewhere.

GUMMOW J: Is there any Queensland authority on that?

MS ARCHER: There is, the case of R v Russell [1973] Qd R 295. All these cases are referred to in the appellant's submissions.

McHUGH J: But it does not seem to me, with great respect, to be a question of whether or not the Code is exclusive of the common law in some way. It is a question as to what was the reason for the jury being able to bring back the verdict and that was because there was only one felony. Murder and manslaughter at common law were not distinct felonies, as I said; they were merely two descriptions of the one felony.

MS ARCHER: With respect, your Honour, my understanding of the reason why this power existed was to protect the individual from the might of the State, to give juries the power to stand between the citizen and the State. That is why there is that reference in the case of MacKenzie v The Queen to a jury being technically satisfied that all of the charges have been proved but consider that justice is sufficiently met by merely convicting the accused of some of them.

Historically, there was instances where, for example, if a person was found guilty of stealing more than a certain value of property they would be executed and if it was under a certain amount they would be deported. So, enormous sums of money or goods would be stolen and the jury would find that they were of less than that cut-off value.

McHUGH J: I know, but as Lord Mansfield said in the Dean of St Aspah Case the jury have the power but not the right to be wrong.

MS ARCHER: That is certainly correct, your Honour. The appellant does not argue with that. But what the authorities say is that a judge may not tell a jury that they do not have the power.

GLEESON CJ: Where did he tell them that here?

MS ARCHER: By telling them that they were not able to acquit unless they were all satisfied beyond reasonable doubt that wilful murder had not been committed - sorry, let me start that again. That they must not acquit unless they were satisfied that wilful murder had not been committed.

GLEESON CJ: This is at the top of page 217?

MS ARCHER: Yes. It is the appellant's submission that, amongst other difficulties, that was telling the jury that they did not have the power. Had his Honour said it would be, "If you lack satisfaction that wilful murder has been proved then it is your duty to acquit", there could be no argument with that. But his Honour's words implied that they had no power.

GLEESON CJ: This is the first sentence on page 217?

MS ARCHER: Yes, your Honour.

GLEESON CJ: I see the problem with the use in that sentence of the word "committed" instead of "proved", but if you substituted "proved" for "committed" what would be wrong with it?

MS ARCHER: It is still reversal of the onus, with respect. It is still implying a state of positive satisfaction that wilful murder had not been proved or committed.

GUMMOW J: I have been looking at Saunders [1988] AC 148 which is on the list but in the All England Reports. At 160 there is the discussion by Lord Ackner of Salisbury at the time of Queen Mary or Elizabeth I. Does that not bear out what Justice McHugh was putting to you?

MS ARCHER: Yes it does, and in fact the words there - I was going to come to Saunders in a moment, because the words there are also relevant to the third point about dictating the order, because it would suggest from that judgment that a jury can be told in what order they may consider their verdicts. If the entire context of the case is looked at, it is the appellant's submission that what was there being discussed was the resolution of a problem that had arisen when the jury were clearly considering both murder and manslaughter and nobody was suggesting that there was anything wrong with them considering both at once. Nobody had directed them that they could not do that, but it is simply that they were unable to reach agreement. That is clear from the question that is referred to at page 975 just below paragraph g:

"The jury is split between murder and manslaughter at present and would welcome further guidance on the distinctions between them."

Then over the page at page 976 about 10 lines down there is a reference to:

Counsel for the appellant pointed out that, in view of their answer to the judge's question, they could well have agreed at least on a verdict of manslaughter.

Then about halfway down the page there is a reference to what the judge directed them to do. So the jury there were not being told, "You don't have the power to consider manslaughter". The jury were considering both but were unable to agree, and so this unique position was reached.

GLEESON CJ: Did not this question, not in a context of homicide but in the context of an unmeritorious prosecution, arise more recently in England? Maybe it never got past the stage of an acquittal, but I thought there was an example within the last few years in England where somebody was prosecuted for an offence - I have in my mind arms dealing - and there was what was regarded as a perverse acquittal. Perhaps it does not matter, because I do not think it ever went beyond the verdict of a jury.

MS ARCHER: But if I can just continue with your Honour Justice Gummow's point, the passage that suggests as if it goes against the appellant on the foot of page 978 - - -

GUMMOW J: No, I am worried about the relationship between the common law and the Code. Does it not bear that out? What Justice McHugh is putting to you is the relationship between the common law and the Code, what is said about Salisbury.

MS ARCHER: I understand the point that your Honour is making, but the appellant's submission that - - -

GUMMOW J: Now we have two statutory offences.

MS ARCHER: Yes, but the appellant's submission is that the authorities from even this Court indicate that merciful verdicts or wrong verdicts are available under the Code and there was a reference by Justice Dixon in the case of Packett v The King [1937] HCA 53; 58 CLR 190 at 213. About a third of the way down the page the sentence begins:

But, under the code as at common law, it remains within the power of the jury to find a verdict of manslaughter, even although it means disregarding the direction.

In Packett's Case what was under consideration was the Tasmanian Criminal Code.

GUMMOW J: Yes.

GLEESON CJ: When you distinguish in a context like this between the power to do something and the right to do something, does power mean any more than that if you do it that nobody can do anything about it?

MS ARCHER: In this context, yes, it does, your Honour. It means a little more. It means not only that no one can do anything about it but also that you may not be told that you do not possess it.

GLEESON CJ: But in this case suppose the jury, when asked by the clerk in relation to count 1, "How do you find the accused, guilty or not guilty of wilful murder?" had said, "We are unable to agree, but we can agree on manslaughter", what would have been the function of the judge at that stage?

MS ARCHER: The judge would not have been able to take that verdict.

GLEESON CJ: That is tantamount to saying, is it not, the jury did not have the power to return that verdict because they could not force it on the judge?

MS ARCHER: They could not force it on the judge unless they said not guilty to wilful murder, not guilty to murder and guilty to manslaughter. Had they done that, they would have been able to force anything on the judge, including an outright acquittal.

McHUGH J: But that is the big difference between the Code and the common law, is it not, because at common law they could do it? Salisbury's Case, which is referred to in Saunders, shows it. As was said in Salisbury, it is the killing that is the substance of the matter and the malice is but a matter of form or the circumstance of the killing, so the jury could find one or other on an indictment for murder. Few people knew as much legal history as Sir Owen Dixon, so I find it surprising that he took the view that:

under the code, as at common law, it remains within the power of the jury to find a verdict of manslaughter -

unless he really means that - he goes on to say:

To tell the jury they have not such a power is to state what is not correct in law -

so it certainly supports your argument. I really have some difficulty with it.

GUMMOW J: He seems to have been straining to fit Woolmington into the Code, does he not, if you look at 212 of Packett?

MS ARCHER: I would not like to think that Justice Dixon was straining at anything, your Honour.

GUMMOW J: I do not know about that.

McHUGH J: He approved Woolmington, although he thought some of the reasoning in it was somewhat deficient.

MS ARCHER: Yes.

HAYNE J: But the Codes were drawn at a time which reflected the pre-Woolmington view of the law, did they not?

MS ARCHER: That is my understanding, your Honour.

HAYNE J: Therefore, you have to face that problem of, in effect, straining to get the Code consistent with the revelation of Woolmington.

MS ARCHER: Perhaps I can say that Justice Dixon has done the straining for me.

GLEESON CJ: The amazing thing is that it is as recently as 1935 that the common law came to the view that if somebody says, "This gun went off accidentally", the onus of proof is on the prosecution. That sounds like a pretty basic question.

MS ARCHER: It does, your Honour. May I also add to the reference to Justice Dixon's judgment the High Court authorities that have dealt with section 23(2) of the New South Wales Crimes Act which is also in similar terms. Those are the cases of Brown v The King [1913] HCA 70; 17 CLR 570. I have already referred to the case of Gammage, and there is also the High Court decision in Beavan v The Queen [1954] HCA 41; 92 CLR 660. In that case the Court expressly stated that the position was the same under section 23(2) as under the common law.

GUMMOW J: Those cases were discussed by Mr Snelling in his article in 32 ALJ 137 to which Sir Frank Kitto later referred in Gammage. They are very New South Wales focused, one might say.

CALLINAN J: Ms Archer, there is a practical matter. Might a jury not do this - and you tell me if there is anything wrong with this - that they may consider first wilful murder and it might be apparent that there is a disagreement in relation to that, so they then say, "We'll set that aside for the time being and we'll consider murder", and it becomes apparent that they would be unanimous about murder. Then those jurors who were formerly of the view that there should be a verdict of wilful murder say, "We'll accept that and we're prepared to say not guilty on wilful murder but guilty on murder". There is nothing wrong with the jury's doing that, is there?

MS ARCHER: No. They certainly have the power to do that, your Honour.

GLEESON CJ: It goes beyond power though. Black tells them that they can yield to the views of others.

CALLINAN J: Yes. Did not the trial judge's direction effectively prevent them from doing that?

MS ARCHER: Yes, your Honour.

CALLINAN J: That, it seems to me, is the real mischief, with respect, in the direction rather than anything else.

MS ARCHER: With respect to the direction, there are a number of criticisms made of it and that is certainly one of them.

CALLINAN J: That does not - it would be a perfectly acceptable result.

MS ARCHER: No, your Honour.

HAYNE J: You come back, do you not, to the basic consideration that the jury will first be asked have they reached a verdict about wilful murder? At the end of the day they are going to have to get to a unanimous verdict on that question, are they not?

MS ARCHER: Yes, your Honour.

HAYNE J: Therefore, is what the judge told them to be understood as directing their attention to the fact that that is the first question they have to answer, or is he attempting to somehow control impermissibly the course of discussion in the jury room?

MS ARCHER: The appellant's submission is the latter.

HAYNE J: And this in the context of a trial where, after the prosecution had opened, the formal admissions made revealed, I would have thought, that there had been an unlawful homicide under 277, is that right?

MS ARCHER: Yes, your Honour.

HAYNE J: And that the sole questions for the jury were what form of unlawful homicide had occurred?

MS ARCHER: That is correct, your Honour.

CALLINAN J: There might be an intermediate position, that is intermediate to what Justice Hayne had put to you, that the direction might have simply been ambiguous on the point. Justice Hayne put to you two possibilities, that the trial judge was trying to control in some way the way in which the jury discussed the verdicts; on the other hand, that the trial judge was doing no more than telling the jury that the first question that would be asked is what their verdict was on the principal count. There is a third possibility, that it was simply ambiguous, that it is impossible to say that the trial judge was giving them a direction to either of those effects.

MS ARCHER: Certainly in the Court of Criminal Appeal Justice Owen did distinguish between the directions given by the trial judge in the course of his Honour's charge and the direction given in answer to the jury's question, and his Honour indicated that it was a fair reading of the first to conclude that it was simply a direction in relation to the order of delivery of verdicts, rather than the considerations during the deliberations.

CALLINAN J: Yes.

GLEESON CJ: But there is another possibility, is there not, which I would have thought was highly improbable but could follow from a literal reading of the words? It is possible, although, as I say, I would have thought highly improbable, that he was telling the jurors what they could think about individually.

MS ARCHER: That is another criticism of it and, with respect, it is not - - -

GLEESON CJ: But that would be such a bizarre direction to give anybody as to the order of their thought processes or even as to the possibility that the thought processes about an issue like this might have an order that you would not attribute it to him, would you?

MS ARCHER: Ordinarily, no, your Honour. However, the expression is repeated, so it does not seem to be a slip of the tongue.

GLEESON CJ: The jury were entitled, were they not, to be thinking about the case from the moment the prosecutor opened it to them?

MS ARCHER: That is correct, but the jury is not supposed to begin forming any conclusions until after they have heard all of the evidence and the judge has charged - - -

GLEESON CJ: Indeed, juries are usually told to retire and consider their verdicts.

MS ARCHER: That is correct, your Honour.

GLEESON CJ: So that the expression "consider" in that context does not mean or is not a reference to what is buzzing around inside their heads.

MS ARCHER: I certainly agree there are two interpretations available.

GLEESON CJ: So I do not know whether it is done in Western Australia - I have not even checked up on whether it is done in this case - but to say that to the jury, "Now retire and consider your verdict", is a reference to their formal, collective deliberations and decision making.

MS ARCHER: With respect, not necessarily. The expression may mean no more than, "Go and commence your deliberations", in which case it would be consistent with the appellant's argument.

GLEESON CJ: It does not mean, "Go and start thinking about the case".

MS ARCHER: I would agree with that, your Honour, but what it could mean is, "Go and start putting the evidence to the elements of the charge that you are looking at", which is the process of deliberation.

HAYNE J: But this, on one view, was a single issue trial, was it not?

MS ARCHER: Yes, your Honour.

HAYNE J: Did he intend to fire the gun or did he not?

MS ARCHER: That is correct.

HAYNE J: If he intended to fire the gun, wilful murder was the only reasonably available verdict, was it not, given that he was, what, a metre away from the victim loaded with buckshot?

MS ARCHER: The end of the shotgun was .5 metres away from the victim, yes. I think that the trial judge was correct to leave murder to the jury, powers aside, just that it was a theoretical possibility, but I certainly - - -

HAYNE J: Caution dictated the form that it took - - -

MS ARCHER: Certainly.

HAYNE J: - - - but at root this was a single issue trial.

MS ARCHER: That is correct. I do not disagree with that, your Honour.

CALLINAN J: You say that in your written submissions. You say intent was the only issue.

MS ARCHER: Yes. For practical purposes it was. The use of the expression or the word "accident" was used throughout the trial and, indeed, throughout his Honour's direction, but it was used in a sense of unintended rather than an unwilled act or an event that occurred by accident. That is apparent from the context. When his Honour is directing about the relationship between accident criminal negligence and unlawfulness, it is apparent that his Honour is using the word in its ordinary meaning.

CALLINAN J: Ms Archer, the question is interesting at the top of page 224 because it really suggests the sort of situation that I put to you, that the jury were in disagreement and they wanted - disagreement with respect to wilful murder.

MS ARCHER: And that, your Honour, is precisely why Justice Owen said that this answer could not be construed as a direction about the order of delivery of verdicts, but was clearly directed at their deliberations and what they were allowed to think about.

HAYNE J: The course of argument that followed, or the course of discussion that followed the question, is perhaps revealing, is it not, Ms Archer? Everybody was in heated agreement that only one answer could be given to that question and that was the answer that was in fact given. If the atmosphere of the trial has anything to tell us, the atmosphere rather leaps off the page, does it not?

MS ARCHER: That would be so, your Honour, if what one was considering was whether a word or a phrase in a particular charge would have had a particular emphasis or not, and in those situations the failure of counsel to make an objection can be very telling indeed. But it is also the case that sometimes counsel miss things, with the greatest of respect, and the fact that counsel has is not fatal.

HAYNE J: I am not suggesting any conclusory aspect but it rather does bespeak the way in which the question was understood.

MS ARCHER: Perhaps if I could put it this way, your Honour. If there was a balance as to whether or not this direction meant one thing or another it may tip the scales, but where, in my submission, the words clearly dictate the order of the jury's consideration the fact that counsel failed to object is more likely to have been a simple oversight.

I return to the discussion of the jury's power to return a wrong verdict. There is a reference in the respondent's submissions at paragraph 61 which is similar in its terms to paragraph 23 of the appellant's submissions, but with one difference. In paragraph 61 of the respondent's submissions there is the phrase:

However, there is a distinction between such a direction and a direction that a verdict of manslaughter implies findings of fact that are not open at law -

Now, if those words implied that the jury does not have the power then the appellant would disagree that that was an appropriate way to determine it.

The case that presents the most difficulty for the appellant is the case of R v Singh (1977) 17 SASR 73, which is a decision of the South Australian Supreme Court. Now, in that case the judge's direction, the relevant part, is referred to at page 74 right at the bottom of the page, and the precise words will become crucial when we turn to consider the Chief Justice's judgment.

At page 77 the Chief Justice begins to deal with the point raised in respect of that direction and his Honour interprets the direction by putting emphasis on the vital word of "must" rather than "can". What his Honour said about that direction was that the words meant only that they had a duty to "consider manslaughter" if they were not "satisfied beyond reasonable doubt" of murder, but said nothing about their power to consider manslaughter and he gave an illustration in respect of a debt being demanded.

So, in other words, his Honour interpreted the direction in this way. At any time the jury may consider manslaughter, but if you are not satisfied of murder that is when you must. So that was the rather technical interpretation of the judge's direction that, with respect, the Chief Justice made.

CALLINAN J: I must say, I read that direction as being quite different from the direction that was given here. There is no reference to unanimity. There is not quite the same emphasis upon order. I just think it is a quite different direction. I do not think it damages you, frankly - your submissions.

MS ARCHER: I am grateful for that indication, your Honour. The reason why the respondent, I suspect, will say that it damages the appellant's submission is because of the restriction on the consideration. So it does not go to the reversal of onus question, it simply goes to the dictating of the jury's deliberations.

HAYNE J: Did anyone in the course of this trial suggest the possibility of merciful verdict?

MS ARCHER: No, your Honour. Having made that interpretation of the judge's direction, the Chief Justice also said that it would not be a misdirection to say you ought not to convict of manslaughter if you are satisfied beyond reasonable doubt that the accused is guilty of murder. Now, had his Honour said, "You ought not", the appellant would have no argument with that, but "must not" and "ought not" are two quite different things.

What complicates the situation is that Justice Bright at page 81 essentially said that it is not a denial of that power to return a wrong verdict if you are satisfied of murder. To refer to manslaughter as a verdict:

to be considered only if they were not satisfied as to all the ingredients of murder -

but then his Honour went on to say:

The charge will not be defective unless in express terms or by reasonable implication it denies the power to bring in manslaughter if all the ingredients of murder are proved.

Then Justice Jacobs agreed with both of them. Perhaps I can put the appellant's submission in respect of this case in this way. If this case says that a judge may tell the jury that they must not consider manslaughter in the course of their deliberations until they have made a firm decision about wilful murder, if that is what this case says, then the appellant says it is wrong.

It is also discussed in R v Donald which is an unreported decision referred to in the respondent's list. That is the Queensland Court of Appeal decision delivered on 19 December 1997. The respondents refer to a different judgment, but in the judgment of Appeal Judge McPherson at page 7, in the fourth paragraph, his Honour is analysing what appear to be conflicting decisions of the courts in respect of this issue and noted that:

the opposite result was reached in R v Singh (1977) 17 SASR 73, where the trial judge directed the jury that they had no power to return a verdict of manslaughter if satisfied beyond reasonable doubt that on the evidence murder had been made out -

whereas, of course, the judges that actually decided Singh were not entirely expressing that view but, with respect, the interpretation by Judge of Appeal McPherson would seem to be correct.

I should also make the point that the respondent's submission in relation to this issue seem to be directed to the issue of whether the judge removed manslaughter as a possible verdict. That appears from the respondent's submissions at paragraph 63. That is not the complaint that is made. The complaint is that the power to return a wrong verdict was removed.

Despite that, it is perhaps necessary to make some remarks about the respondent's submissions on this point, but I will keep them brief. Paragraphs 56 to 60 of the respondent's submissions deal with the way that the trial judge directed the jury as to manslaughter and criminal negligence and unlawfulness. I would just make the point that it is not accepted that those paragraphs do adequately set out what the trial judge said about those issues or about the appropriate relationship between "accident" in terms of section 23 of the Western Australian Criminal Code and criminal negligence, but it does not appear presently to be material.

In paragraph 51 the respondent refers to the risk that the jury, had they not been required to be unanimous of wilful murder - although, of course, the appellant says the judge went much further than that - may have reached a compromise verdict denying the appellant the opportunity be acquitted altogether, and the respondent cites two cases apparently in support of that proposition.

Having scrutinised the judgment of Justice Owen in the Court of Appeal of Western Australia, it would appear that that has come from his Honour's judgment but, with respect, it misunderstands his Honour's point about those two cases, namely that the appellant in this case, as Justice Hayne pointed out earlier, had not lost the chance of acquittal. What he had lost was the chance of being acquitted of wilful murder. He would have been convicted of manslaughter at least, unlike the situation in Smith v The King. In that case the court there said the judge is not bound to leave manslaughter but it will be a misdirection to tell the jury that they are not entitled, and they were entitled, even if there was no evidence to support such a verdict, but the judge can point out that such a verdict is not open on the facts.

As for R v Falconer, the reference is to the judgment of Justice Toohey at page 77. At that page, his Honour was discussing the order of consideration of "non-insane automatism and insanity". The point of that discussion was simply that if the jury did not consider non-insane automatism first, somebody could end up being convicted, or should I say acquitted on the grounds of unsoundness of mind, when they were in fact entitled to an unqualified acquittal. So neither of those cases support paragraph 51.

In respect to paragraph 52 of the respondent's submissions, it is written:

The trial Judge's directions merely required the jury to follow the law and be true to their oath -

If by that it is meant he denied them the capacity not to be, then that would be a misdirection in the appellant's submission.

Paragraph 53, the respondent's submission suggests that rather than fettering the jury, what the judge said to them promoted discussion and deliberation. Cheatle & Ors v The Queen is cited as authority for that, but Cheatle's Case was a discussion about what section 80 of the Constitution required when one was considering trial by jury. Interestingly, in that case, it was expressly stated that the situation in relation to a not guilty verdict was left open.

The reference to Johnson v Louisiana, the citation that is given there is the Lawyers Edition citation and that is a reference to the dissenting judgment. That judgment was a judgment that was dealing with the reasons why unanimity is required to preserve proof beyond reasonable doubt; so not in the context that the respondent uses it at all, with respect.

To close on the point of the removal of the power, whether a direction in fact removes the power or simply is reminding the jury of their duty is going to depend on the precise words used in the interpretation that is made. But, as was said in both Packett and Gammage, it is very important that what the judge said makes it clear to the jury. They cannot be left in any doubt, and if the direction did deprive them of that power or purport to, then it will be a misdirection.

The final ground of complaint is the matter that has already been touched upon and that is that what the judge said fettered the jury's deliberative process, so he dictated the order in which they had to approach the issues in the course of their deliberations.

GLEESON CJ: You use the word "issues" in the plural. If this were a single issue trial, how did any question arise as to the order of deliberation in the sense in which you are using the term as distinct from the order of formally deciding their verdicts?

MS ARCHER: With respect, that is precisely the appellant's complaint. It should have been a single issue trial. The jury should have been able to consider what intent they found to be proved, if any. They should have been allowed to go back to the jury room and say, "What intent do we think he had? Are we satisfied of that beyond reasonable doubt?" But the judge's direction said in effect, "You must not consider whether he had an intention to cause grievous bodily harm or whether you lack satisfaction of an intention to cause death or grievous bodily harm until you have first decided whether or not you are satisfied of an intention to kill." That was the practical effect of that direction in this case. Because it should have been a single issue case is precisely why it was so dangerous.

GLEESON CJ: Let us have a look at the actual question the jury asked, which appears twice on page 224. It was a question about the consequences of disagreement, was it not?

MS ARCHER: Yes, it was.

GLEESON CJ: That was a question about the consequences of final disagreement, was it not?

MS ARCHER: That would appear to be what the jury's question is directed to, yes. The judge's answer, however, would seem to tell them, "Forget about lacking intention to kill. Focus on whether you are satisfied beyond reasonable doubt of an intention to kill. Think about that first."

GLEESON CJ: I just wondered whether the question throws light on the meaning of the word "consider" in the answer.

MS ARCHER: That interpretation would probably have more force were it not for the fact that those are the similar expressions used by his Honour in the course of charge proper. It just seems to be a phrase that his Honour was using, "consider".

GLEESON CJ: I understand the question to mean, "If, after all our private thought processes and collective thought processes, some of us conclude that we would return a verdict of guilty of wilful murder and others reached the opposite conclusion, what happens then?"

MS ARCHER: Yes, I would agree with that, your Honour, and the judge could have said to them, "You will be asked firstly whether the person is guilty or not guilty of wilful murder and, if you are satisfied beyond reasonable doubt of wilful murder, you convict. If you are not satisfied, if you lack satisfaction, you acquit. If you cannot agree, that is the end of the matter. If you have agreed and you have said convict, that is the end of the matter. If you have agreed and said not guilty, you will then be asked, `How say you in relation to murder, is he guilty or not guilty?' and the same process will repeat itself."

GLEESON CJ: My memory may be playing tricks on me but did not the Black direction in involve telling the jury the consequences of disagreement?

MS ARCHER: There certainly have been authorities that have said that, which has been criticised.

GLEESON CJ: There was a great issue about whether you could tell jurors that there would have to be the trouble and expense of a new trial.

MS ARCHER: Yes, and it has been held that that is not a good idea.

HAYNE J: But the Black direction, which is 179 CLR at 51, has as its second sentence:

I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement -

et cetera.

GLEESON CJ: Did this judge tell the jury what the consequences of disagreement would be?

MS ARCHER: No, your Honour.

CALLINAN J: He did not say a great deal about them being unanimous either. I saw a couple of passages but I did not think he said anything that would derogate in any way from the reading that I tentatively would adopt.

MS ARCHER: I would agree with that, your Honour, but when it comes to the question of the proviso I will be taking the Court to some other directions that his Honour made that were correct that will need to be taken into account in considering the overall impact of what is said to be a misdirection because - I will say it now - at the commencement of his Honour's charge he properly directed the jury about the burden of proof, the standard of proof and the presumption of innocence and all of the consequences that flow from that. So, his Honour did tell all that to the jury first.

GLEESON CJ: But sometimes directions can create the impression that if the jury cannot agree, then the accused just goes free.

MS ARCHER: That is one of the difficulties in this case, because there is a risk that if some of the jurors formed that view, they may have thought that their only option was to then move up to wilful murder. If that was a potential fact in the jury's mind, then the consequences to the appellant would have been even more serious.

HAYNE J: Just to return to the question at 224 and the answer given to it, is the consequence of the discussion just had between you and the Chief Justice that the weight of the answer which his Honour gives at 224 lines 42 and following is in the sentence at line 45:

So, whatever your verdict is on the first charge of wilful murder, it must be unanimous.

Is that the weight of the answer that is being given?

MS ARCHER: The appellant actually has difficulties with the entire answer after "Yes, the law is quite clear", which obviously is not going to worry the jury one way or the other, whether or not that is right. But the first passage, "You can't come to consider", that is objected to because it implies dictating the order. The passage "unanimously of the view" is said to arguably reverse the onus and then the last sentence, for the reasons expressed by the Chief Justice, so it actually contains all of them.

In relation to the dictating of the order of consideration, the appellant's submissions are set out at paragraphs 26 to 36. In paragraph 30 is the essence of the point, and that is that a judge should not impose a mandatory order on deliberations unless it is necessary. There have been cases where it has been necessary, for example, when insanity is in issue. There is also legislation in South Australia that dictates precisely that. There is no equivalent in Western Australia. It is the appellant's submission that unless it is necessary or dictated by legislation, then it should not be done because it simply adds another fetter to the jury. The more directions juries are given, the greater the risk that they will go wrong.

In the respondent's submissions, paragraph 36 on this point, it seems, the respondent cites the case of Alford v Magee [1952] HCA 3; (1952) 85 CLR 437. The citation gives the passage at page 466. That is cited for the phrase that is quoted at the end of paragraph 36:

All these cases establish that there exists no rule which generally prohibits a trial judge directing, in appropriate circumstances, that the jury consider various charges or defences before them in a certain order to, " . . . guide them to a decision on the real issue or issues in the case."

I simply make the point that Alford's Case does not fit into that sentence and, if anything, would support the appellant's case. In that passage what the Court was saying is that a jury should only be instructed on as much of the law as they need to know.

In this case it is submitted that it was not necessary to make this direction and, more to the point, it was potentially confusing, for the reasons that I have already explained. It is saying to the jury, "You must not consider the lack of intention to kill, lack of intention to do grievous bodily harm or grievous bodily harm until you've first decided whether you're satisfied of - - -

GUMMOW J: Have you set out anywhere in your submissions the answer that you say should have been given?

MS ARCHER: No, your Honour. With respect, the answer that should have been given probably should have been a little more detailed than the one that was given, although much of the charge was admirably succinct and dealt with the issues extremely concisely, but - - -

GUMMOW J: No, at 224.

MS ARCHER: At 224, yes. It would need to be a more detailed explanation, with respect.

GUMMOW J: What would it say?

MS ARCHER: It would need to say that, "Your duty is to deliver a verdict that you find on the evidence and if you are satisfied beyond reasonable doubt of wilful murder, then you must convict, and if you remain of that view, you cannot join in the lesser verdict". That would be the start of the answer and it would develop from there, but it would need to be quite lengthy.

GLEESON CJ: Why would it not have been quite short? Why would not the answer to the question they asked be, "If you can't agree on your verdict on the charge of wilful murder, then you will be discharged"?

MS ARCHER: That would have been one alternative. Another would have been to simply say no, but I think it would have been more helpful to actually elucidate the principles for the jury.

GLEESON CJ: Well, he would have to be careful because of the suggestion that whatever he said would be putting pressure on some of them to move.

MS ARCHER: That is true. So perhaps the answer no, or your Honour's answer would have - - -

GLEESON CJ: And if he had told them that they would be discharged, would he be entitled to tell them that it would then be open to the prosecution to put him up again?

MS ARCHER: As a matter of logic, I would have thought yes, but I am not aware of an authority that would support that.

CALLINAN J: It is the sort of thing that judges customarily do in varying forms of language, particularly when they give a Black-type direction, is that not right?

MS ARCHER: Yes.

CALLINAN J: I have not seen exception taken to it at any appellate level.

MS ARCHER: And it would be difficult to see how you could object to that. He is simply telling the jury the situation.

GLEESON CJ: As a commonsense matter, it could be lethal to an accused to leave a jury with the impression that if they disagree he walks free.

MS ARCHER: That is one of the appellant's difficulties with this direction, that that is a possible view that the jury might have had. If they had that, then the chances of wrongly convicting were very high. The authorities that deal with the failure to leave an intermediate verdict support that principle entirely because there is a raft of authorities that talk about, if a jury is satisfied that the accused has done something bad and should not get away scot-free, they might then move up and convict them of the more serious because they do not have any middle ground, and it would be precisely that problem that your Honour is talking about here.

HAYNE J: I may have the wrong impression of the effect of the answer you gave Justice Callinan. My impression - correct me if I am wrong - was that at least at an intermediate court level departure from the ipsissima verba of a Black direction was seen as likely to provoke great difficulty, that if you were to give a persistence direction to a jury, you followed the text in Black and you did not depart one whit from it. But am I under a wrong impression?

MS ARCHER: I do not think so, your Honour. As I say, I am not aware of any authorities that talk about a judge telling a jury that if they fail to agree they may be discharged and the Crown may reissue, but it would seem to me as a matter of logic that a judge should be able to say that to a jury.

GLEESON CJ: It is, if I may say so, an issue that the Black direction does not necessarily face up to.

MS ARCHER: No, it does not, your Honour.

CALLINAN J: I think the practice perhaps might vary in different places. The judges tend to say things like, "You would appreciate that a great deal of expense has been incurred by the community", and sometimes and something to the effect that further expense will be incurred if they are unable to agree. It may not be said expressly but I think it probably is, but it is certainly - - -

HAYNE J: That is flatly rejected in Black at page 50. It explicitly disapproved reference to "considerable public inconvenience".

MS ARCHER: Yes, I do not think, certainly in my experience - - -

CALLINAN J: That is what I say, I think the practice may vary. It may infringe - - -

GLEESON CJ: My recollection, but I will check it, is that the direction that was disapproved in Black was a direction that attempted to deal with the problem of the danger to an accused of leaving the jury with the impression that if they disagreed the accused would go free.

MS ARCHER: Yes. What his Honour said with which issue was taken is at page 47 where his Honour is talking about in the direction why it is desirable that they should come to a conclusion and about halfway down the page - - -

GLEESON CJ: Exactly. The direction that was disapproved in Black said:

if you don't [agree], it will mean that some jury will have to later seek to do what you have chosen to do.

MS ARCHER: That is right, but I think that the criticism is directed at pointing out the negative consequences, in other words - - -

GLEESON CJ: Yes, the expense, indeed.

MS ARCHER: Yes.

GLEESON CJ: But how does the Black direction deal with the problem? How does the direction recommended in Black deal with the problem that a jury might be left with the impression that if they disagree the accused goes free, an impression which would ordinarily be very dangerous for an accused?

MS ARCHER: The Black direction that is suggested at the bottom of page 51 does not deal with issue at all, as your Honour has pointed out earlier. It simply says that the judge can tell them that they have the power to discharge but it does not refer to that the Crown will then be entitled to re-lay the charge.

GLEESON CJ: My impression is the same as Justice Hayne's which is that nowadays in New South Wales trial judges stick to the ipsissima verba of Black.

MS ARCHER: Yes. I am sure Mr Stone will be able to give the Court a better idea of what occurs in Western Australia with his vast experience in criminal trials but, as I indicated before, as a matter of logic, providing the jury were not told about the negative consequences of a retrial, namely, expense and inconvenience and stress to witnesses, then I would have thought it would be very much in the interests of the accused that the jury be told it does not mean that he gets off.

CALLINAN J: I see what was corrected, as it were, in Black by this Court had been the standard direction in New South Wales up until that time and a standard direction elsewhere up until then too, I think.

MS ARCHER: Returning to the point of the effect of what the judge said in terms of dictating the order upon the jury, it is submitted by the appellant that it would have been preferable to allow the jury to consider the issue in whatever way they consider to be logical.

If I can take the Court now to paragraphs 37 and 41 of the respondent's submissions on this point and make some observations of those paragraphs. There is an assertion in paragraph 37, which appears to be repeated in paragraph 41, that "there is no difference in either form or substance between" those two matters and it is the appellant's contention that that is simply wrong. Paragraph (a) deals with the delivery of verdicts and paragraph (b) deals with the deliberative process.

Paragraph 39 of the respondent's submissions purports to set out, with respect, what Justice Owen said in the Court of Criminal Appeal below, that Justice Owen considered that the "initial directions . . . were in the nature of a direction as to the" delivery of verdicts. The one in response to the answer was related to the deliberative process. What Justice Owen actually said was that the directions in the context of the charge:

could fairly be regarded as being directed to the announcement of the verdicts -

so that simply needs to be noted. That is at page 343 of the appeal book at paragraph 87. In that footnote, footnote 41, the passages from the appeal book of the judgment of Justice Anderson were referred to, but page 217 is not.

That concludes my submissions in respect to the misdirections and whether or not they were misdirections for those three reasons. If the Court found that they were, the next issue would be whether the Court of Criminal Appeal was correct to apply the proviso. The submissions on this point are in paragraphs 37 to 50 of the appellant's submissions. The first issue is whether any of the misdirections or the combination of errors led to or was fundamental, and it is submitted that the reversal of onus point is a fundamental error.

GUMMOW J: Where do we find the Court of Criminal Appeal dealing with the proviso? Is it just at paragraph 38, is it, of Justice Murray's judgment, with which the Chief Justice agreed at paragraph 12?

MS ARCHER: That is in relation to the Chief Justice and Justice Murray. They both applied the proviso.

GUMMOW J: Yes, but that is their only reasoning.

MS ARCHER: Yes, and may I add that the court's attention was not drawn to the case of Gilbert, it seems. It is the submission of the appellant that the reversal of onus point is fundamental. There are some relevant passages in the decision of Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 and the relevant passages are set out in paragraph 42 of the appellant's submissions.

So, in the judgment of Justices Gaudron, Gummow, Kirby and Hayne at page 212 paragraph 24, that judgment makes it plain that closer scrutiny will be given to questions in relation to burdens of proof, but the conclusion is that it will not necessarily be fatal or fundamental. It needs to be looked at in its context, but I would draw the Court's attention to the judgment of Justice McHugh, which supports the appellant's contention that this would be fundamental, at page 226 paragraphs 74 and 75.

In relation to dictating the order of deliberations, that is also submitted to be a fundamental misdirection even though its practical consequences may be considered in some contexts to be less significant than the other criticisms. That is because it is placing a fetter on the jury that is not necessary. The courts have been at pains to protect the jury as much as possible from any unnecessary restrictions on the way they go about their business. If a judge was to say to a jury, "That person there, third from the left in the back row, that's the foreman. When you retire to consider your verdict, you should all firstly have a show of hands and see what you think. If you're not agreed, each of you gets to talk for 10 minutes and then have another show of hands", that may have absolutely no impact on the result but it would be an unnecessary fetter on a jury and I suspect that this Court would not allow that to be said.

GUMMOW J: Your opponent deals with guilt at paragraphs 64 and 65 but then really deals with the proviso question by saying it does not arise.

MS ARCHER: That is correct, your Honour. The third issue is whether the removal of the power to deliver a wrong verdict is fundamental. Brown's Case would suggest that it is; Packett's Case would suggest that it is not. If an analogy is drawn with Gilbert's Case, where there is a failure to leave an intermediate verdict, the answer would be that it is not a fundamental error. If it is not fundamental, then the Court returns to whether or not there was a miscarriage for the Crown to show. As I mentioned earlier, when that question is considered, the context of the judge's directions need to be looked at as a whole. It is conceded that at the commencement of his Honour's directions to the jury, he properly directed them about the burden and standard of proof, presumption of innocence and the consequences that flowed from that.

GLEESON CJ: Sometimes we even get to consider the merits of these cases. Could you just remind us of what was the argument in support of the verdict of manslaughter.

MS ARCHER: The appellant's position at trial was that he had gone over to his estranged wife's home because he wanted to try and talk some sense into her. He took with him a shotgun which he loaded outside the house and went in.

GLEESON CJ: That is very useful in making people see sense.

CALLINAN J: And also 20 cartridges of a particularly lethal kind.

MS ARCHER: Yes, that is true.

McHUGH J: No 4 shot.

MS ARCHER: When he went into the house he said that he came upon his estranged wife. She turned, he recoiled, the gun went off.

HAYNE J: He then did nothing to assist her. He replaced the phone on the hook, he left the house. How far did he drive before eventually he presented himself at the police station?

McHUGH J: He went to the hire car firm first, paid for the petrol, went back to his unit, he dismantled the gun and then went to the police station over an hour later.

MS ARCHER: That is true but - - -

McHUGH J: Was not the deceased's arm up in a position indicating she had been attempting to shield herself from the shot fired?

MS ARCHER: That is true. The evidence relating to intention to kill is set out in the respondent's submissions at paragraph 43. Just dealing with the post-offence conduct, it is explicable on a number of grounds. If the jury were of the view that a reasonable inference that could be drawn from that conduct was that he was panicking as a result of having unlawfully killed her, they could not have used that as proving an intention to kill.

GLEESON CJ: I suppose what you have got going in your favour is that the question on page 224 indicates that at least someone on the jury thought it might have been a case of manslaughter.

MS ARCHER: There is actually quite a lot more in the appellant's favour although, weighed up against the Crown case, it may not balance out, but the appellant did not have the burden of proof. Let me simply run through the things in the favour of the appellant. Firstly, that he parked on the road verge in clear view of passers-by that would use the - - -

McHUGH J: But that was against him, was it not? That was used against him, because his normal habit was to drive up to the house - - -

MS ARCHER: That is correct.

McHUGH J: - - - and if he had hired a car, even though he had his own car available and functioning - - -

MS ARCHER: That was used against him, although there was evidence that he would park on the road if he had his new partner with him, although he did not on this occasion. So it was out of character, but, nevertheless, the car was in a position where it could be seen. He went to the house in broad daylight, when it was likely that other people would be there. There was evidence from a pest control person that a pest control job had been booked for that day for around 9 am, that the job normally took over two hours.

We know that the shooting occurred at about 10.58 am, because that is when the lady who was on the phone waiting for the deceased to return to the phone heard a noise. The phone records showed that that was when the call was made. The caretaker would routinely go up to the house in the morning to assist the deceased to clean the house and she would usually get there at about 9 am and be there for one and a half to two hours. There is also the fact that the accused, as he then was, gave himself up to the police with the weapon.

But the most significant evidence in his favour was the evidence that came from the expert ballistics witness that was called by the Crown and he was Senior Constable Burnham. Now, he gave evidence that the gun that was used was a shotgun that was "designed to be shot from the shoulder" so that the recoil would be absorbed by the shoulder. That is at appeal book page 56 at lines 32 to 40. Yet the evidence was that this gun was discharged from hip level, and they were able to work that out by mimicking tests and showing a spray pattern of where the pellets went and working out the distance above the ground that the gun must have been held.

McHUGH J: He also had an injury, did he not?

MS ARCHER: That is the most significant point, your Honour, with respect. He had an injury to the webbing of his hand that indicated that at the time the gun was discharged he was holding it loosely. This is a man who is experienced in the use of firearms, and instead of holding the gun firmly from his shoulder, he has got it down at hip level, holding it loosely which is - - -

HAYNE J: Cocked, requiring, what, three kilos pressure to cock it?

MS ARCHER: With respect, your Honour, not necessarily. It failed the slipping hammer test and given that the appellant's evidence at trial was that he had no recollection of cocking the weapon, you cannot exclude the inference that the weapon had not been fully cocked and discharged because the gun was faulty. The evidence of that is at page 72 of the appeal books at line 45 and the fact that it is called "the slipping hammer test" emerges from page 77.

Also in relation to the respondent's submissions, Justice Callinan referred to the ammunition. There is a submission made that he took the ammunition that was most deadly. The evidence at trial was that he had available to him - - -

HAYNE J: Can I just go back to this slipping hammer test?

MS ARCHER: Yes, your Honour.

HAYNE J: Is that not a test where the weapon is cocked and a hammer dropped on it?

MS ARCHER: No, your Honour, with respect. It is a test where if you release the cocking mechanism before it is fully engaged, whether a cartridge will be discharged. The gun is designed to prevent that from happening - that is one of the safety features. But this weapon, if the hammer was released before it was fully back, it would fire, which was a fault.

HAYNE J: Yes.

MS ARCHER: Getting back to the ammunition, all of the ammunition and the other weapons that were located by the police were found in the estranged wife's home, the matrimonial home on Estuary Road. The appellant had moved out of that home years before and had taken with him, it seems, his shotgun. He wanted to shoot kangaroo meat because he liked curries, he said. So he had with him this shotgun, he had with him that ammunition. There is no evidence that he had any of the less deadly ammunition in a place where he could access it.

The most telling point, in my submission, against the idea that this Crown case was overwhelming is that the first jury was hung. All the other matters are set out in the appellant's submission and, unless I can assist the Court in some way, those are the appellant's submissions.

GLEESON CJ: Yes, thank you, Ms Archer. Yes, Mr Stone.

MR STONE: If your Honours please, the respondent firstly seeks leave to file out of time the notice of contention.

GLEESON CJ: Is that opposed, Ms Archer?

MS ARCHER: Your Honour, given that I represent the appellant, I cannot consent to that but it is a matter for the Court and it does not cause the appellant any prejudice.

GLEESON CJ: Yes you have leave, Mr Stone.

MR STONE: Thank you, your Honour. If your Honours please, the Crown submits that the Court of Criminal Appeal in this matter fell into two simple errors. First, they mischaracterised what properly constitutes a unanimous verdict of not guilty and, second, they incorrectly considered there to exist a distinction between an order in which verdicts become available and an order in which charges become available for consideration. The respondent submits that with a proper understanding of these matters, the secondary questions of reversal of onus of proof, undue pressure on deliberations or fettering of the jury's discretion to consider matters in whichever order they see fit, or the withdrawal of the jury's power to return a manslaughter verdict simply do not arise.

If I can take your Honours to firstly what the learned trial judge said in directing the jury, so that one can understand what he meant in terms of consideration of a verdict. His Honour dealt with the burden of proof, the onus of proof, and then took the jury to, at 213 point 20, after telling the jury that he would be taking about wilful murder, murder and manslaughter, point 20:

You could not find him guilty of wilful murder, which is what I'm now talking to you about, unless satisfied that he shot his wife intending to kill her.

He then goes on at page 215 at point 25:

Unless you can all agree unanimously and beyond reasonable doubt that this man's intent was an intent to kill, you cannot find him guilty of wilful murder.

It is these directions that precede the directions that are complained about.

HAYNE J: Before this point of the charge, has his Honour directed the jury about the need for unanimity?

MR STONE: As I understood his first direction in relation to that, to unanimity, it arose at the point, I think, when I took your Honours to page 215 at point 25. That is when he has first spoken of unanimity and that is developed further. Focusing on that just for a moment, his Honour, at 217 point 5 - and this is one of the directions that is complained about - - -

GLEESON CJ: Just before you go any further, it starts on page 8, line 14, does it not?

MR STONE: I think the judge's charge - - -

GLEESON CJ: No, the first time the judge told the jury about the need for unanimity was before the commencement of the trial - I am sorry, was at the commencement of the trial. As usual, the judge gave the jury some directions before the trial started.

MR STONE: Yes:

We don't want a situation to arise when you come to deliberate on your verdict that you can't remember whether you heard something in this court . . . Your verdict is to be brought in only upon what you see and hear . . . Any verdict which you bring in, whether guilty or not guilty, must be unanimous.

Yes, your Honour, I am indebted.

GLEESON CJ: Yes.

MR STONE: So that has been put before the jury at the commencement of the trial and in the course of his Honour's directions then to the jury, expanded upon at 215, point 25. Then going to 217, point 5:

As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed. You must unanimously come to that conclusion before you move to consider whether the alternative crime of murder has been proved.

An observation that your Honour the Chief Justice made was that if the word "proved" were submitted for the word "committed", would that make a difference. It seems that throughout the course of his Honour's deliberations thereafter he is using the word "proved". One sees that at 217, point 30, again taking up the unanimity point:

If you are unanimously of the view that the crime of murder has not been proved, then you can proceed to consider the alternative verdict of manslaughter.

Then at point 40 on the same page:

Can I take the opportunity at this point just to say again, it is not for the accused to prove that this was an accident, it is not for the accused to prove that he had no intention to kill or to seriously hurt the deceased, it is for the crown to prove any requisite intention and it is for the crown to prove that it was not an accident.

Then, over at page 219, between point 35 and 40:

You first consider wilful murder and if you're unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he's not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder. If you are unanimously of the view that he is guilty of murder, then that will be your verdict.

If you are unanimously of the view that he's not guilty of murder, then you will consider manslaughter. If you are unanimously of the view that he is guilty of manslaughter, then that will be your verdict. If you are unanimously of the view that he is not guilty of manslaughter, then the verdict will be not guilty.

And then his Honour suggests to the jury an approach that they may take to their deliberations, their starting point. Then he goes on at 222 point 5 - - -

GLEESON CJ: Just before you come to that, at the top of 221, he is there suggesting to them a process of reasoning that works in the reverse order. He seems to be suggesting they first of all ask whether the killing was unintentional.

MR STONE: Yes.

GLEESON CJ: And then he says the next possibility that they might like to consider is whether it is "at least manslaughter".

MR STONE: Yes.

GLEESON CJ: And they then move from there to ask themselves whether intent sufficient to establish wilful murder has been proved. So that, in terms of consideration, appears to be a recommendation of a process of reasoning which is the very reverse in terms of sequence of that that is put against you.

MR STONE: He suggests a course by which they first consider whether the killing is unlawful. It takes the jury through - the Crowns says what he is putting there is a process by which they consider the issues.

GLEESON CJ: But he seems to be commending to them, without binding them, a process of reasoning by which at one stage they might come to the conclusion that it is at least manslaughter.

MR STONE: Yes indeed.

GLEESON CJ: And see where they go from there.

MR STONE: Yes, indeed. The Crown would say in relation to that at no stage has there been any direction by the trial judge that the jury do not have the power or are to refrain from considering the issue of manslaughter. It is put fairly and squarely there for the jury to consider in the course of their deliberations.

As I say, the question itself, 224 as it has been put at 35 and 45, the Crown would submit that it is merely a direction to the jury that whatever their verdict is on the principal charge it has to be unanimous, so direction to the unanimity. It is not a direction which precludes a consideration by the jury of any of the issues in the trial. That is clearly picked up by what his Honour says at 224 point 45:

So, whatever your verdict is on the first charge of wilful murder, it must be unanimous.

With that the Crown would agree because there is a requirement of unanimity in relation to verdicts in relation to wilful murder and murder under section 41 of the Juries Act (WA).

CALLINAN J: Do we have that by the way? I do not know whether it is part of the section in which - - -

MR STONE: Yes, I understood the Juries Act has been supplied. Perhaps I could take your Honours to that.

CALLINAN J: Thank you.

MR STONE: Really it comes back to - the first error we say the Court of Criminal Appeal fell into was it mischaracterised what properly constitutes a unanimous verdict of not guilty.

GLEESON CJ: What is the section of this Act?

MR STONE: Section 41.

GLEESON CJ: And where do we find the error in the Full Court?

MR STONE: The error, with respect, your Honour - I am looking at Stanton v The Queen [2001] WASCA 189; (2001) 24 WAR 233. Justice Murray, with whom the Chief Justice agreed, at page 239 paragraph 28 says:

A proper guilty verdict would be one produced by the jury being unanimously persuaded of guilt beyond reasonable doubt. In the event that they did not reach such a unanimous verdict, they would acquit of that offence, or of any offence.

The Crown would agree with that. His Honour Justice Murray went on to say:

It was open to the jury as a matter of law to decline to convict of any offence upon the basis that they were not unanimously persuaded of guilt beyond reasonable doubt. That might be the case if members of the jury remained of different views -

and with that we take issue.

GLEESON CJ: That is just a jury disagreement.

MR STONE: Yes, indeed. If it were a jury disagreement, then the appropriate course would be under section 644 of the Criminal Code, to which your Honours were taken a while ago - if the jury were disagreed on that, for there to be a discharge of the jury at that point.

GLEESON CJ: Section 644?

MR STONE: Yes.

HAYNE J: Can a majority verdict be taken at a wilful murder trial?

MR STONE: No, your Honours. If we go to section 41 of the Juries Act, if I just perhaps read that out to your Honours - - -

HAYNE J: There is no need to; we are able to read it.

MR STONE: It is clear from section 41 of the Juries Act and the provisions of the Criminal Code that in relation to wilful murder and murder in relation to verdicts, in relation to those charges a unanimous verdict must be returned, unanimous as to either guilty or unanimous as to not guilty. So if the jury are of different views as stated by his Honour Justice Murray, then the appropriate course is, under section 644, for the jury to be discharged at that stage.

GLEESON CJ: That is an error, but what part did it play in the reasoning?

MR STONE: It then led on to a misunderstanding then of Beavan and Gammage and his Honour's reasoning then in relation to what a verdict of manslaughter means. His Honour Justice Murray and the Chief Justice then took the view that as a result of the decisions in those cases, a manslaughter verdict may simply mean that the jury were satisfied of all the elements of the offence of wilful murder save for that element which related to the issue of intent. So the return of a manslaughter verdict in those circumstances to the principal charge satisfied those requirements, whereas the Crown's submission is that the unanimity provisions under the Juries Act required a verdict of guilty or not guilty on the principal charge, that it was a condition precedent to alternative charges that there at least be a unanimous finding by the jury in relation to the principal charge.

GLEESON CJ: I am afraid I have not understood the point of difference between what you just put in the last sentence and what you say the Full Court considered about Beavan and Gammage.

MR STONE: Justice Murray went on at 239 at paragraph 31:

In my opinion, cases such as Beavan v The Queen and Gammage v The Queen, in the different contexts of those cases, support the views I have expressed because they talk of verdicts being supportable by the jury's satisfaction beyond reasonable doubt of the presence of the elements of the offence rather than upon their unanimous satisfaction that the proper verdict in relation to a more serious offence is one of not guilty. In particular, I see nothing in the obiter observations of Kitto J in Gammage which is inconsistent with that view. It is necessarily the case that to convict of manslaughter is to give a general verdict upon the indictment which necessarily acquits of wilful murder and murder, but that may only be upon the basis that the jury were not able unanimously to find beyond reasonable doubt the necessary specific intention to support either verdict.

So his Honour there, we would say, with respect, has misunderstood the effect with respect to what is a unanimous verdict of not guilty being a condition precedent to the consideration of alternative verdicts of murder or manslaughter and that it is a necessary process for the jury to firstly return a verdict on the principal charge before one can consider the alternative verdicts that arise.

GLEESON CJ: The prosecution is entitled to a verdict on the principal charge.

MR STONE: Indeed.

GLEESON CJ: And if the jury inform the judge that they are unable to agree upon a verdict then the course for the judge to take is to discharge the jury.

MR STONE: Yes, indeed.

GLEESON CJ: And is it permissible for the judge to tell the jury what are the consequences of that?

MR STONE: The Crown would say, in the circumstances of this case, no, it is not. The jury in this case had merely been out for three hours at a point when they came back with their question, but their question was directed to the effect of their verdict, the unanimity of verdict and that they were simply being told that, "It is necessary for you, whatever your verdict is in relation to the principal charge, that it has to be unanimous".

GLEESON CJ: This was a second trial, was it?

MR STONE: Yes, it was, indeed.

GLEESON CJ: It was not inevitable, I suppose, that if there was a hung jury this time they would put him up again?

MR STONE: Yes, that could well have been a consequence.

GLEESON CJ: Was the judge entitled to tell the jury that the consequence of disagreement either would be or may be a new trial?

MR STONE: I would have thought, with respect, at this stage that would have been putting - - -

GLEESON CJ: At any stage was he entitled to tell them that?

MR STONE: It is my understanding of Black that he would not be.

GLEESON CJ: What if they asked him? And they would be pretty slow on the uptake if they did not.

MR STONE: Yes. I think if they had asked him, it would be incumbent upon the judge to say, "There are these options available but they need not concern you". The jury's duty, at the end of the day, was to return a unanimous verdict, whatever it was, on the principal charge because of the nature of the charges that they were confronted with.

The Crown would say that in the circumstances of this case - they had only been out three hours - as to whether there was somebody holding out for manslaughter at that stage, the Crown would say that is purely speculation, with respect. It may simply have been a case of one person, maybe two, who simply were not yet satisfied to the required standard of proof beyond reasonable doubt on the intent issue. It does not necessarily follow that the jury were divided, and his Honour's direction then at that point was simply directed to the fact that, "Yes, whatever your verdict is, it must be unanimous".

GLEESON CJ: They do not have a duty to return a unanimous verdict, do they?

MR STONE: The Crown would say under section 41 of the Juries Act they do.

GLEESON CJ: They can disagree, can they not?

MR STONE: Of course, but if they are to return a verdict - - -

GLEESON CJ: It must be unanimous.

MR STONE: Indeed.

GLEESON CJ: But disagreement is not a breach of duty?

MR STONE: Not at all. The Crown would say, no, not at all, and at no stage in his directions to the jury does the judge say to them that you cannot disagree. What he does do is he correctly directs them in terms of section 41 of the Juries Act, that on the wilful murder and murder charges their verdict must be unanimous, if they are going to return a verdict on those charges. That is all that his Honour has done, with respect. He at no stage puts any fetter on the way they deal with issues in the trial.

HAYNE J: The direction given by the trial judge, at least on one view of the matter, is not inconsistent with the decision of the Full Court of Victoria in McCready [1967] VicRp 36; [1967] VR 325 to which Justice Murray refers, a judgement of Chief Justice Winneke and Justices Adam and Starke. Particularly I have in mind what their Honours have to say at page 329, between lines 15 and 20 and again between lines 30 and 40.

MR STONE: It is understood Justice Murray disagreed with the decision.

HAYNE J: Yes, I see that.

MR STONE: The Crown submits - and I am just picking up points 12 and 13 of the respondent's outline of submissions - that the jurors' oath and requirement of unanimity require all jurors to be satisfied beyond reasonable doubt that the facts constituting each element of the charge of wilful murder. Conversely, the jurors' oath and requirement unanimity for a proper verdict of not guilty of wilful murder require each juror to give active consideration to the evidence and then either for all of the jurors to have made a determination that the facts constituting any element of the charge of wilful murder were not extant, or for all jurors to agree that the facts constituting any element of the charge of wilful murder had not been proved beyond reasonable doubt. Then we go on there to deal with what happens if they are in disagreement.

GLEESON CJ: What do you say about the first sentence on page 2l7 and, in particular, the use of the word "committed"?

MR STONE: What the Crown makes there is that his Honour has throughout the entirety of his direction to the jury in fact used the word "proved" - this seems to me the only time that the word "committed" has slipped in - that he has given very clear instruction to the jury throughout the entirety of his charge to the jury as to the burden of proof, the standard of proof, and that it remains upon the prosecution from start to finish.

GUMMOW J: He used "proved" in the next sentence.

MR STONE: Yes, in fact, down at point 40 he uses "prove" on four occasions in that one paragraph.

GLEESON CJ: This is the sort of situation in which the failure of trial counsel to seek a redirection is often of some significance, is it not? The question is whether that might have led to a misunderstanding - - -

MR STONE: Yes.

GLEESON CJ: There are plenty of cases that say that if a judge has used a certain expression in a direction and an appeal court thinks it may be ambiguous, but there is a real question about whether it gave rise to any misunderstanding, the failure of trial counsel to complain about it may be an important consideration.

MR STONE: Yes, indeed.

GLEESON CJ: It seems to indicate that it never occurred to anybody at the trial that this reversed the onus of proof.

MR STONE: No, it was seen by all those at the trial that, in fact, what his Honour was speaking of was that the burden of proof was upon the prosecution, that if the prosecution had not proved or satisfied the jury of all the elements of the offence beyond reasonable doubt, then their verdict would have to be not guilty on the wilful murder charge and then they could move on to consider the various alternatives. Certainly, the Crown submission, the way in which one reads what his Honour has said in relation to each of the directions that have been complained about is his direction is simply there directed to the verdict and the fact the verdict had to be one that was unanimous.

GLEESON CJ: One thing that even the most quiescent trial counsel would usually be on the lookout for is a reversal of the onus of proof.

MR STONE: Yes. It is very difficult to see that, your Honours, when one looks at point 40 on that same page, very shortly after the complained directions:

Can I take the opportunity at this point just to say again, it is not for the accused to prove that this was an accident, it is not for the accused to prove that he had no intention to kill or to seriously hurt the deceased -

that would have led into the alternative murder charge -

it is for the crown to prove any requisite intention and it is for the crown to prove that it was not an accident.

So the Crown says in the context of the charge what his Honour was saying when he has used the word "committed" or he has used the word "proved" is to bring back to the jury their need to keep at the forefront of their minds that the burden of proof rests upon the Crown. So that if the Crown had not satisfied them to the required standard, if they were unanimously of that view, they bring in the not guilty verdict and move on to the next. The respondent submits that is the only way that one can really interpret what his Honour has said in the context of this charge to the jury where the issues were fairly narrow. His Honour is not at any stage directing the jury that they could not consider any particular issue. In fact he, I think as your Honour the Chief Justice has pointed out, invites them at the very start in the course of their deliberations to start looking at the manslaughter issue.

It is very difficult, the respondent would say, to point to any direction at all in this charge where his Honour has directed the jury to refrain from a consideration of manslaughter, or in fact from any issue that they chose to deliberate upon.

GLEESON CJ: Was this a case in which there was - I forget the detail - some background of the facts that might have led to a certain censorious attitude towards the victim?

MR STONE: I think there was mention made in the record of interview by the - - -

GLEESON CJ: Manslaughter seems a pretty generous approach to the facts.

MR STONE: Yes.

GLEESON CJ: But, as your opponent points out, there was a hung jury and, as the question at page 224 indicates, it looks as though it was off and running in this trial.

MR STONE: The Crown would say after three hours deliberation - if one looks at what the - in terms of the jury question, the jury, if they had been following his Honour's directions to them, have by that stage considered issues of manslaughter in terms of accident and criminal negligence. They have now under consideration, the Crown would say, the issue of intent in relation to the charge of wilful murder. That is where the state of their deliberations are.

Whether that means somebody was still holding out, so to speak, the Crown would say that is pure speculation. I think it is important just to focus on the stage that they have reached, what their question was directed towards and his Honour's response, saying, "Whatever your verdict is, in accordance with the Juries Act you must be unanimous".

GLEESON CJ: The question seems to suggest that somebody was asserting or had conceived the idea that unless there was unanimity on wilful murder the people who supported wilful murder were obliged to consider whether they would convict him of manslaughter. In other words, the question as framed indicates that they were interested in the consequences of disagreement on the charge of wilful murder and in particular whether one of the consequences of that was that the supporters of wilful murder were obliged to consider whether he was guilty of at least manslaughter.

MR STONE: With respect, his Honour's answer to the jury, nothing which precluded the minority, if you like, who wanted to discuss manslaughter from debating that issue.

GLEESON CJ: But they are seeking information about the consequences of disagreement, are they not?

MR STONE: They are seeking information as to the requirements of their verdict, if I can put it that way, with respect, and his Honour answering it by saying, "You must be unanimous".

GUMMOW J: Where does this expression "move down" come from? It is related back, is it not? Where is it in the judge's direction?

MR STONE: I suppose if we go to 219 line 35:

You first consider wilful murder and if you're unanimously of the view that the accused is guilty of wilful murder, that will be your verdict.

GUMMOW J: And "then you proceed".

MR STONE: Yes, "then you proceed". Interestingly enough, at line 45 he says:

If you are unanimously of the view that he's not guilty of murder, then you will consider -

His Honour is there talking about the process by which they return their verdicts.

HAYNE J: Well, "move to consider" is an expression his Honour used at 217 line 9 - go a line over.

GLEESON CJ: That question, "Do 12 people have to agree to move down to manslaughter?", seems to suggest that they are addressing the possibility that some people will not agree to characterise this homicide as manslaughter.

MR STONE: With respect, I think one is speculating as to what is in the minds of the jury at that point in time.

GLEESON CJ: Taken according to its terms, it is a question about the consequences of disagreement, is it not?

MR STONE: I suppose, on one view, it can be looked at in that way. But then when one looks at his Honour's answer to them, bearing in mind that his Honour at no stage tells them that they cannot be in disagreement, that they cannot have different views to each other, I suppose that is leading into the Black situation, but the Crown would say - - -

GLEESON CJ: But do you understand why, in the light of Black, he may have decided to avoid the question?

MR STONE: Indeed, and it may be that his Honour took the view that at that point in time it was not appropriate for a Black-type - - -

HAYNE J: We know that because his Honour said so explicitly, did he not?

MR STONE: Yes, normally - - -

HAYNE J: See lines 23 and following at 224.

MR STONE: Yes, he says, "No, not yet." One normally waits four or five hours before that the Black type of direction is given.

GLEESON CJ: Is that a convenient time, Mr Stone?

MR STONE: If your Honours please.

GLEESON CJ: We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Stone.

MR STONE: Your Honours, I wanted to finish off the matter raised before the luncheon adjournment dealing with the jury question and answer in relation to the question posed as to whether the jury question itself related to a state of disagreement and that his Honour judiciously avoided dealing with that issue, and make these observations.

When one looks at the question itself at 224, the respondent would accept that, yes, one characterisation of that is an inquiry about disagreement. Another characterisation of course is to be found in the answer given by the trial judge and the comments that he made before the jury came back in to counsel, that he was not ready at that stage to give a Black-type direction so he deliberately avoided a direction along those lines and the consequences of disagreement, but importantly his Honour did not direct the jury in answer to that question to tell them that they could not be in a state of disagreement. He simply directed them, that whatever verdict they bring in on that charge, it had to be one that is unanimous. That is not to infer or imply into that that the jury cannot be in a state of disagreement or cannot disagree about their verdict or issues in the case. The Crown would say that that cannot be read into the answer that his Honour provided.

The other observation that I would make that certainly there was no question in that answer that there was a reversal of the onus of proof as is being complained of by the appellant.

HAYNE J: A possible explanation of the question - and inevitably one is left to speculate which no doubt one should not do - is in the last third of page 219. The judge tells them, "You must first consider wilful murder", and then two paragraphs later tells them to start, "by considering whether the killing was unlawful". It may be - who knows - that the jury might have seen some tension about where you start and how you start. Maybe this was their question to resolve that tension. I am not sure that anything too much turns on it. Having told them to begin at wilful murder, it did seem a little at odds to then say, "We will start at the bottom by considering whether the killing was unlawful".

MR STONE: It is a necessary part of the direction to the jury to direct them as to their verdict and also to give them instruction, assistance as to how they deal with the issues in the case. There is a difference, the Crown would submit - and that is the second point that we say where the Court of Criminal Appeal went wrong - between directing a jury as to their approach to verdict charge and directing the jury as to the course in which they may deal with issues in the case.

Perhaps if I could take your Honours to what his Honour Justice Owen said in Stanton at page 251, paragraph 87, and then I will develop this a little further, but it is interesting to note that his Honour Justice Owen at paragraph 87 said:

If the totality of what the trial judge said to the jury on the relevant issues had been confined to the directions given before the jury retired, I do not think they could be criticised. In my view, the remarks which I have set out above could fairly be regarded as being directed to the announcement of the verdicts rather than to the process of deliberation leading to the verdicts.

His Honour Justice Owen saw the substantive charge directions to the jury as directions to the jury as to verdict and that they had to be unanimous in relation to their verdict. His Honour took a different view in relation to the answer to the question. He saw that as part of the deliberative process. It was a direction to the jury as to how they should deliberate on the issues.

We say in relation to that that there really is, with respect, no distinction between a direction - I am looking at our outline of submissions at paragraph 37 - there is no difference in either form or substance between a mandatory direction that the jury must first return a unanimous verdict with respect to the principal charge of wilful murder before the alternative verdicts of murder and manslaughter become available, and a mandatory direction that the jury cannot consider the alternative charge - call it verdict, charge or verdict, but there really is no difference between the two - of manslaughter until they have first reached a unanimous verdict with respect to their consideration of the principal charge of wilful murder.

It is at paragraph 38 of our outline that we say Justice Owen in the Court of Criminal Appeal, we say, went into error. He considered that there exists a distinction between a direction regarding the ultimate decision of a jury and a direction regarding the process of deliberation, and that is what takes one into the answer to the question. Justice Owen refers to the former direction as going to, variously, "the pronouncements of verdicts" and the "end result of the jury's deliberations", and refers to the latter direction as going to, variously, "the process by which the result is reached" and the "task of deliberating".

We say that there is in effect no distinction. What is important is that the jury consider the issue in the case in whichever way they see fit, that there is no fetter placed upon their consideration of the issues. So, when one goes to what the trial judge said as to the starting point of deliberations, which is at page 219 of the appeal book line 50, he says:

I suggest you start your deliberations by considering whether the killing was unlawful in the sense of whether it was not accidental.

This was merely of assistance to them as to a consideration of issues, some of which necessarily impacted upon issues that involve consideration of questions relating to manslaughter. As he goes on to say at page 220 of the appeal book, line 5:

Unless you're satisfied of that; that is, unless you're satisfied to the required degree that the shooting was not accidental, then the verdict must be not guilty and that will be that. It's entirely for you, of course, but the circumstances are such that I think you will hardly bring in a verdict of not guilty in this case. I don't think you will have any difficulty in concluding that in pointing a loaded and cocked shotgun at the chest of another with your finger on the trigger is, at the very least, such a grossly negligent act as to rule out accident.

Then he goes on at 221 line 5 to say:

If you decide that the killing was unlawful in the sense that it was not an accident, then the verdict must be at least manslaughter. If intent to kill is proved, the verdict must be wilful murder. If intent to do grievous bodily harm is proved, the verdict must be guilty of murder. Something has been said to you by counsel about motive -

and he then goes on to deal with motive.

So the Crown submits that there has been no fetter placed upon the jury's consideration of the intent issue by the trial judge and this is something that has been advanced by the appellant. We say, clearly, it was there. It necessarily involves consideration of other issues, issues that may impact upon the manslaughter issues.

So we conclude, in paragraphs 40 and 41 of the respondent's outline of submissions, by saying there exists no distinction between a direction, that we have here, that a jury must come to their ultimate decision or verdict in a particular order and a direction as to the order upon which matters must be deliberated upon.

Accordingly, there existed no distinction between the trial judge's directions on this issue in his charge proper and in his answer to the jury question. There is no distinction between directing a jury that manslaughter is not an available verdict until other matters have been dealt with and directing a jury that they must not consider manslaughter until other matters have been dealt with.

The direction to the jury is simply to consider the evidence in relation to the various issues, but that is not preventing the jury from looking at the evidence and from jurors saying, "On this particular issue, I am not satisfied that intent has been made out". So you can have, on a consideration of the intent issues, a disagreement, if you like, and there has been no direction by the trial judge that they are restricted in any way from a consideration of those issues.

I would like to turn now, if I may, to what is called the power to return a manslaughter verdict. I take your Honours to section 594 and 595 of the Criminal Code.

CALLINAN J: Which section, I am sorry?

MR STONE: Section 594:

Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence under this Code, or any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment.

Then if I may invite your Honours to look at section 595 which deals with an indictment involving wilful murder:

Upon an indictment charging a person with the crime of wilful murder, murder, manslaughter or infanticide, the person charged may be convicted of an offence mentioned opposite that crime in the Table if that offence is established by the evidence.

It is there set out what the alternatives are to wilful murder. The respondent submits that having regard to the trial judge's direction to the jury, at no stage can it be said has he withdrawn from their consideration the alternative verdict of manslaughter. He has fairly directed the jury as to the evidence that relates to that issue. He has told the jury that, at the very least, the verdict that they may return at the end of the day will be one of manslaughter, and explains to them the reasons how that can come about. So the respondent submits that at no stage has any direction by him precluded or directed the jury that they cannot bring in such a verdict that is beyond their power, if you like, to do so. All that occurred, and as we have outlined in the respondent's outline of submissions at paragraph 46, is:

that the trial Judge's directions properly required the jury to refrain from considering manslaughter until they reached unanimity on the more serious charges -

as they were required to do -

the only limit this placed upon the jury was the proper limit that they consider the evidence . . . first, in relation to the charge of wilful murder -

the principal charge, as it related the issues in the case, but that did not - - -

GLEESON CJ: "Consider" in the sense of "make a decision about"?

MR STONE: "Consider" in a sense "ultimately make a decision about".

GLEESON CJ: As distinct from "ruminate upon". He told them to ruminate first upon whether it was at least manslaughter.

MR STONE: Yes, but he has not placed any restriction on their deliberative process, if you like, in that regard. The only restriction that he has placed on the jury is that, "When you come to return your verdicts, there is a particular order in which this must occur and it requires unanimity before you can get from one charge or one verdict to the next".

GLEESON CJ: Is it your submission that when he was telling them about what they had to do when considering their verdicts he was telling them the process they had to follow in relation to the course of ultimate decision making, when they reached the point of decision?

MR STONE: Yes, he was directing them as to how ultimately their verdicts had to be returned in the sense that, "You deal firstly with wilful murder. Whatever your verdict is on that, if it be unanimous as to not guilty, then you can return and move down to consider the next alternative and so on, by that process arrive at a return of a verdict in relation to manslaughter". The process by which - perhaps it is best not to use those expressions. He was simply informing them that in relation to the charge verdict on the more serious charge, that had to be dealt with first in terms of the return of verdict, and they had to be unanimous on that.

GLEESON CJ: It evidently never occurred to trial counsel for the accused that by the answer he gave to the question asked by the jury he was in effect taking manslaughter away from the jury.

MR STONE: No, and the respondent would reply to that by saying at no stage has his Honour done that. His Honour has made it quite clear to the jury that at the very least manslaughter is a verdict there for them, at the very least that is one that they can return with.

The direction - and I am looking at point 47 of the respondent's outline - that the jury consider the evidence before them regarding intent, first with respect to the principal charge of homicide, did not require or suggest any other limitation on their deliberations. It did not require the jury to artificially divide their consideration of the issue of intent or the evidence going to intent. Such a direction did not preclude disagreement or robust discussion amongst jurors. Nothing in this direction precluded any juror from voicing his or her opinion at that point in time that they were not satisfied that the issue of intent had been made out in relation to wilful murder. The jurors could maintain that position if they chose.

We say, that limitation, simply that they consider the evidence first in relation to the intent issue, was contextual rather than substantive and did not prevent the jury from considering the evidence going to the issue of intent in any way they saw fit. Consequently, there was no prohibition of logic suggesting that the direction of the trial judge was incorrect. The trial judge had to direct the jury as to a particular course. When one goes to section 277 of the Criminal Code, it directs the jury in circumstances where:

Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be wilful murder, murder, manslaughter, or infanticide.

The jury had to resolve firstly this issue of whether or not there has been an unlawful killing. Then it goes on at 278 to deal with the definition of "Wilful murder", the definition of "Murder" and finally the definition of "Manslaughter" at section 280.

GLEESON CJ: Those are only definition sections for the purpose of section 277.

MR STONE: Indeed, they are. They make the process by which his Honour suggested to the jury that they firstly start their deliberations by looking at the question of whether or not the killing has been unlawful.

GUMMOW J: We have been through this before on an earlier occasion. You start at 268, do you not?

MR STONE: Yes, indeed, and move on to 270 and so on.

GUMMOW J: How does accident fit in again, in the structure of the Code?

MR STONE: That is section 23 of the Code.

GUMMOW J: That is right, yes. Thank you.

MR STONE: If I can close then by submitting to your Honours that the practical effect of his Honour's directions to the jury in this case and taking in his Honour's answer to the question posed, in the Crown's submission, did not fetter in any way the jury's discretion to consider the issues relating to the various forms of homicide. It did not tend to reverse the onus of proof, and I say that because throughout his Honour's charge to the jury, save for one occasion where he used the word "committed", his Honour has on numerous occasions used the word "proved" and he has used that in the context of the burden of proof and the standard of proof.

So that could, where he has used the word "committed", only be understood to mean that his Honour was requiring that the prosecution have established to the required standard and satisfaction of the jury the necessary elements of the offence before returning a guilty verdict on that issue. There was nothing in the trial judge's directions to the jury which tended to place undue pressure on the jury's deliberations. Nowhere in his Honour's directions to the jury has he withdrawn from the jury's consideration the availability of manslaughter as an alternative verdict.

The respondent would say on the contrary, his Honour has made it abundantly clear that that is a verdict available for their consideration and it is one that at the very least they are in a position to return at the end of the trial if they so choose. The respondent also submits that having regard to his Honour's direction that his Honour was correct, that the jury must not consider a lesser form of homicide, which is open on the indictment, until unanimity has been reached with respect to the higher form of homicide.

CALLINAN J: Do you say then that they cannot say, "We are not in agreement at the moment on murder or wilful murder. Let's have a look and see what the position is on, say, manslaughter, bearing in mind that we do have to face up to the fact that we have to return a verdict on, say, wilful murder. But let's see; it may be that if everybody agrees upon murder, or for that matter manslaughter, those who now want to convict on wilful murder may feel differently"? You do not say the jury cannot do that?

MR STONE: No, I do not say the jury cannot do that.

CALLINAN J: Is there not a risk that what the trial judge told them may have led them to think that they could not do that?

MR STONE: With respect, not. At no stage does he say to the jury in answer to their question that they cannot be in a state of disagreement.

CALLINAN J: Take what he said even at page 217, about line 28:

If you are unanimously of the view that the crime of murder has not been proved, then -

and perhaps one can imply the words, perhaps not -

then -

but only then -

you can proceed to consider the alternative verdict of manslaughter.

MR STONE: Yes.

CALLINAN J: I know he is talking about murder and manslaughter there, but he is really telling them, on one view, that they cannot look at the lesser charges before they have absolutely decided and finally decided on the greater charges.

MR STONE: Yes, he is telling them that it is necessary for them to reach a unanimous verdict on - - -

CALLINAN J: Yes, but it is the use of the word "proceed": "then you can proceed to consider". They can consider anything they like in any order they like so long as they understand that they have to return a verdict on the principal charge.

MR STONE: Yes. The Crown would have no difficulty with that, your Honour. That is how his Honour has directed them as to unanimity of verdict and - - -

GLEESON CJ: There may be a measure of inconsistency in the way he put it, but, having said on page 217, "you can proceed" in a certain event "to consider the alternative verdict of manslaughter", he then went on to tell them on pages 220 and 221 that it was at least a case of manslaughter.

MR STONE: Yes.

GLEESON CJ: Of course, they did not have to accept it, but he put to them that, on his view of the case, there was not anything for them to consider - - -

MR STONE: Which he is entitled to do.

GLEESON CJ: - - - about manslaughter, in the sense that he put to them, on the bottom of 220 and the top of 221, that the verdict had to "be at least manslaughter", in which event it was, as your opponent put it, a single-issue case.

MR STONE: Yes.

GLEESON CJ: The only real question for them was whether it was worse than manslaughter, and that possibility could only be wilful murder.

MR STONE: Yes, I accept that, your Honour, and that is why, with respect, it seems to be wrong to view what his Honour says at 217 of the appeal book as precluding the jury from a consideration of the alternative of manslaughter. All that the trial judge is directing them there - and that is simply looking at one sentence, if you like, of the trial judge's direction in isolation. When you look at what his Honour has said at 217, the complained-of directions, in the context of the whole charge to the jury and what his Honour finally was telling them, as your Honour the Chief Justice has noted in relation to pages 220 and 221, the jury could not have been under any misapprehension that somehow or other they are not allowed to look at manslaughter.

All that his Honour is telling them is - and I know I am repeating myself, but it is in conformity with section 41 of the Juries Act. They are going to have to bring in a verdict on the principal charge. That verdict, whatever it is, has to be unanimous, but that does not mean, looking at the whole of his Honour's charge, that in any way they are precluded from considering manslaughter.

GLEESON CJ: An argument that has been put against you, as I understand it, is that the way he put it foreclosed the possibility of disagreement.

MR STONE: With respect, it does not.

GLEESON CJ: It has been my observation that, putting to one side cases where there is a possibility of a majority verdict, in all Australian jurisdictions judges emphasise to juries the requirement of unanimity for a verdict, but never - until you get to the point of a Black direction which, as you said, there is at least four hours or so - never raise with them the possibility of disagreement, perhaps for good reason.

MR STONE: Yes, because it is desirable that the jury reach a unanimous verdict one way or the other on the principal charge. We see that in trials every day of the week. That is the most desirable outcome in a trial would have to be, from the perspective of each party, that the verdict that was returned was a unanimous verdict one way or the other.

GLEESON CJ: I am not saying that is a wrong practice, but it is a very notable feature of practice that judges do not discuss the possibility of disagreement unless it is raised by the jury.

MR STONE: Indeed, and it is more like advance a reason for that. It would not be a desirable outcome to have a number of cases where juries had to be discharged because of disagreement. It is a better outcome if there can be robust discussion in the jury room by all jurors, the majority and minority, so that at the end of the day people's views are taken into account. At the end of the day they can return a unanimous verdict.

CALLINAN J: One can see, with respect, the eminent good sense in all of that, but you did have, in this case, an indication that the jury were in disagreement.

MR STONE: Yes, I think I started just after lunch - I would have to agree that is one characterisation of the question.

CALLINAN J: And that might give rise to an occasion short of an occasion calling for a Black direction for the judge perhaps to say something about disagreement.

MR STONE: I understand that, but I think - - -

HAYNE J: Is not there a difficulty there? Bear in mind counsel on both sides will have gone to the jury saying, "This case is as clear as burning daylight. The verdict you return is self-evidently obvious". One side will be saying self-evidently obviously a verdict of guilty, the other the opposite conclusion. The moment the judge gets down and says, "Listen, disagreement might be reasonable", the judge is intruding on that element of fact-finding which is the jury's province alone and the dangers of the judge saying, "Well, I understand you may be disagreeing", is that the jury goes out saying, "See, the judge told me that reasonable people can differ", and you have suddenly set yourself on a set of tram tracks which judges dare not do.

MR STONE: Yes, and one has to bear in mind, of course, the trial judge had this jury under his observation. This was his trial. He thought, given the issues in this trial, it was not an appropriate time to embark upon a Black-type direction, but may I just simply answer his Honour Justice Callinan's question? It is important - I know I am restating what I have said earlier, but his Honour does not say to the jury in response to that question, "You cannot be in disagreement". He does not tell them that they cannot disagree.

CALLINAN J: No, I understand that. I am just not too sure that a question like that does not really act as a trigger for a Black-type direction. I mean, it would not if the jury had been out for 10 minutes or something like that plainly, but if they had been out for long enough - I am not saying it does, I am just raising the question.

MR STONE: Indeed, and clearly it is within the discretion of the trial judge and this trial judge did consider that and he thought it was not the time.

CALLINAN J: And the parties did not say anything different of course.

MR STONE: No. I might add also I understood the contest was really one between wilful murder and manslaughter.

GLEESON CJ: That is what I was going to ask you. How did defence counsel conduct this case? Was it a he?

MR STONE: Yes.

GLEESON CJ: What did he suggest the jury should decide?

MR STONE: I think it is actually referred to in his Honour's charge to the jury. He speaks about Mr Hogan - if I can just pick that up for your Honours - when he is outlining the defence case. I have one passage to it, that is at page 209 line 45. I know there has been another reference to Mr Hogan and I will come to that in a moment, but the defence case is that there is simply insufficient evidence to sustain any finding of guilt beyond a reasonable doubt.

The defence case essentially is that the crown has failed to prove that the accused ever had any intention to hurt his wife and that all he ever intended to do with the gun was to use it to persuade her to sit down and talk sensibly about the deceased's monetary claims.

Then he goes on to summarise the accused's evidence.

GLEESON CJ: So the defence did ask for not guilty, is that right?

MR STONE: Perhaps if I could pick up what the defence lawyer actually said - I suppose, yes. If we look at page 215 line 35:

Mr Hogan, counsel for the accused, submitted to you that if the accused had been bent on murder, he would not have openly hired a vehicle from a local hire firm, parked the vehicle on the road verge where other road users would see it, gone to the house in broad daylight -

GLEESON CJ: It looks as though it is a wonder Mr Hogan was not on his feet protesting about that direction on the top of page 221.

MR STONE: How I understood the case was it came down to wilful murder or manslaughter. I am not sure that it has seriously - if it was, it certainly has not been my understanding of the case - been suggested by the defence that he would walk away from it altogether, having regard to the nature of the weapon, the circumstances in which the killing occurred and the conduct of the defence generally. At the very least, it had to have been regarded as a criminally negligent act to have brought a firearm of that nature within such a close range of the deceased lady.

I suppose, it is for that reason, your Honour, that defence counsel does not complain about what is said at the top of page 221 because it really had narrowed itself down, as most trials do, to issues in a case. In this case it really narrowed itself right down to the specific intent issue on the wilful murder, had the Crown proved that beyond reasonable doubt, given the overwhelming strength of the evidence that emerged in the course of this trial.

If your Honours please, those are the Crown submissions. The Crown also relies of course on the contents of its outline of submissions,

GLEESON CJ: Thank you, Mr Stone. Yes, Ms Archer.

MS ARCHER: Thank you, your Honours. One minor matter of clarification which may not be particularly pertinent, but Mr Stone indicated that the jury were out for three hours. It appears from the transcript that they were out for just over four hours before the question was asked, and that is apparent from pages 224 and 222 of the appeal book.

In relation to the point at page 221 of the appeal book where his Honour appeared to be indicating that the jury could at the very least convict of manslaughter, it is my submission that when his Honour's charge is looked at as a whole that that was not a recognition that manslaughter was where they should start but simply an acknowledgement that the first thing they would need to do in respect of any verdict was to determine whether the killing was unlawful. That is apparent from page 212.

In the second paragraph his Honour indicates that he is about to embark on a direction in respect of wilful murder. His Honour correctly identifies the elements of wilful murder and points out that it needs to be demonstrated not to have been excused, authorised or justified. So his Honour then brings up the topic of accident, and I suspect his Honour was using that not in a section 23 sense but in a non-intended sense, and makes it quite clear, having mentioned accident, when he says at about point 17 the issue that looms large is the issue of intention. Then when he - - -

GLEESON CJ: I think you said earlier and I think, if I may say so correctly, that by "not accidental" he meant a willed act.

MS ARCHER: That is correct. When his Honour was using the relationship between "accident" and "criminal negligence" it seemed that what his Honour was saying was, "You first have to consider whether this was a willed act and, if it wasn't, then it would be criminally negligent".

GLEESON CJ: So there is no question of automatism, there is no question that somebody bumped him from behind and the figure moved in a reflex action or something like that?

MS ARCHER: There is the appellant's position at trial, which was that he recoiled in a reaction to the deceased's movement towards him so that the gun went off as a result of an unwilled act, but it would clearly have been criminally negligent in those circumstances to be waving a loaded shotgun at somebody. Having started from that position when his Honour explained wilful murder firstly and explained that it required a finding of unlawfulness and explained what that meant, although using those words in the way that they are commonly understood rather than their technical meaning, his Honour then at the foot of page 219 returns to that theme.

It is the appellant's submission that this is not an invitation to start off by considering manslaughter. This is an invitation to firstly establish that the killing was unlawful because you cannot go anywhere else until you have done that. His Honour tells the jury on more than one occasion that although it is a matter for them, quite frankly that is just simply not an option in this case. So his Honour is saying - - -

GLEESON CJ: What is the name of the case, which starts with R, in which I think Justice Windeyer wrote a judgment on the point and in which he pointed out that you do not refine the act down to the movement of the finger?

McHUGH J: Ryan.

GLEESON CJ: The act is pointing a loaded gun at somebody.

MS ARCHER: Yes, which is why I made the point earlier that it seems that the use of the word "accident" was being used in a specific sense that was not meant to refer to section 23 of the Criminal Code. Although the defence was talking about it being an accident, the practical defence was that it was unintended in that sense. At the top of page 221, it is submitted that what his Honour is there saying is that unlawful killing is a given. If it is a given, manslaughter is a given but you start with considering wilful murder and you cannot go anywhere else until you have decided about wilful murder. That, in the appellant's submission, is what his Honour means if it is taken in the context of his earlier directions.

In relation to the judgment of Justice Murray, the respondent has categorised his Honour's judgment in a particular way as his Honour asserting that a jury does not need to be unanimous to find somebody not guilty as part of their duty. That is the assertion being made by the respondent. It is not strictly necessary for the appellant's position to join in that attack or to defend the position of Justice Murray, but it may assist the Court if I simply make some observations about the passages criticised because, in the appellant's submission, there is more than one interpretation that can be placed upon his Honour's judgment.

It is my submission that in paragraphs 29 and 30 of Justice Murray's judgment which is at page 326 of the appeal book his Honour, on one view of it, is talking about the power of a jury to return a wrong verdict. That interpretation is supported by two things: firstly, at the top of paragraph 30 his Honour refers to "the provisions of the Code" as supporting his Honour's position and the:

authorities discussed by Owen J which recognise that it is always within the lawful power of the jury to return a verdict -

that is open. The reference to the provisions of the Code takes you back to paragraphs 26 and 27 of his Honour's judgment which is at page 325.

Critically, his Honour explicitly refers to the provision that requires unanimity and the provision that gives the judge the power to discharge a jury if they fail to agree. Against that background, in my submission, it simply would be a very difficult conclusion to reach that in paragraph 29, immediately following those paragraphs, his Honour had launched into a thesis that was inconsistent with those provisions and in the context, in my submission, it is far more likely that his Honour was merely talking about a power of the jury to return a wrong verdict and concluding that that power had been taken away from this jury.

GLEESON CJ: Leaving aside cases where there might be some criticism of a direction of a trial judge because it is inconsistent with this power to which you refer, how does a court ever know whether that power has been exercised?

MS ARCHER: I do not think the court ever does know, with respect, your Honour. In some of the authorities the courts indicated that on the facts the case was clearly either murder or nothing and yet the jury had returned a verdict of manslaughter and in the view of the appeal courts that was inexplicable on the evidence, so I imagine that in cases such as those that would be the inference that one might draw.

GLEESON CJ: But presumably these lesser verdicts are only ever left to a jury on the basis of an assumption that they are open to the jury.

MS ARCHER: That is true.

GLEESON CJ: If they were not open, they should not be left.

MS ARCHER: They should not be left, your Honour, or they need not be left, but the jury must not be told that they are beyond their power.

GLEESON CJ: But if it has been left on the basis that the jury are being told it is open for their consideration, why would you ever say anything to the jury about this power? The hypothesis on which you are putting it to the jury is that it is open to them.

MS ARCHER: That brings me back to the point I made earlier, that it is not the complaint of the appellant that his Honour removed the power to return a verdict of manslaughter. It is the complaint of the appellant that his Honour removed the power of a jury to return a verdict of manslaughter even if they were satisfied that the accused was guilty of wilful murder.

GLEESON CJ: But that happens, does it not, every time a judge says to a jury, "If you are satisfied beyond reasonable doubt of X, Y and Z, then you will find the accused guilty of murder"?

MS ARCHER: It would depend on the words that were used, but certainly - - -

GLEESON CJ: That is a common formula, is it not, "If A, B and C, then you will find murder"?

MS ARCHER: Certainly. In Western Australia my understanding is that the common form would be, "Your duty is to convict" - - -

GLEESON CJ: Certainly not, "You may find murder".

MS ARCHER: Certainly not. That is certainly right, your Honour, but if the judge was to say, "If you are satisfied beyond reasonable doubt, your duty is to convict", that could not be complained of because there is a distinction between the duty and their power. Although it may seem, in some ways, an odd thing to leave a jury with and an odd thing to want to protect it, it has developed over time specifically to protect the individual from the State and it is a power that has been recognised that juries possess and that should not be removed from them.

GLEESON CJ: But judges do not talk about it, do they? What judges do in a summing up is, leaving aside reviewing the facts and the evidence and the arguments, the judge instructs the jury on the principles of law as applied to the facts of the case and says to the jury, "In the event that you conclude beyond reasonable doubt that the following elements of the offence have been made out then you will find the accused guilty of something, whatever it is. Then when it comes to the alternative verdict, if you are not satisfied beyond reasonable doubt that the elements of the principal offence have been made out, you will come to consider the alternative". Now, what did this judge do that is different from that?

MS ARCHER: What this judge did was to say - restricting it only to this point and not the reversal of onus point - that they did not have the power to do anything else. The words that your Honour has used may or may not imply a duty or a power or an absence of power. If that is a commonly used direction, then arguably it may in some situations be interpreted as depriving the jury of the power. A direction such as the one given in Western Australia, your duty is to convict, could not be said to take away the power. What this judge did was to go one step further and, in the appellant's submission, make it plain it is unambiguous what his Honour was saying and what his Honour was doing was removing that power.

I should also point out that the authorities draw a sharp distinction between the obligation on the judge to tell the jury about something being available to them, which really the judge has. It is not open on the evidence. There is no obligation on the trial judge to tell the jury about it but what the judge must not do is tell them that they do not have the power. Commonly, that situation would arise when a jury might ask a question "You have told us it is murder or nothing, can we find manslaughter?" and the judge must say "Yes". Quite entitled to say "Yes, but quite frankly I do not see how you could on the evidence", but the judge must say "Yes".

CALLINAN J: What do you say was the appropriate answer to the question? Would it have been something like this? "You may consider the possible verdicts in whatever order you wish. You must keep in mind, however, that you will, when you have finished your deliberations, be required to give your verdict first on the count of wilful murder. It will only be if you reach a verdict of not guilty on that that you will be asked to give a verdict on the other verdicts open."

MS ARCHER: I would adopt that gratefully, your Honour.

GLEESON CJ: Well, what is the difference between that and what the trial judge said on the bottom of page 219 over to 221?

MS ARCHER: As I mentioned before, in my submission what the judge is doing there is laying the groundwork for the wilful murder verdict to be considered. His Honour had previously told the jury what wilful murder required and he told them that the killing needed to be unlawful. So his Honour is approaching the fact that the killing needs to be unlawful, makes the remark, "Well, then at the least it's manslaughter", but then immediately says, "If intent to kill is proved, wilful murder with intent to cause grievous bodily harm, murder.

GLEESON CJ: But what he does on page 209 is offer a suggestion as to the order of their deliberations. Now, the very fact that he calls it a suggestion indicates he is leaving it up to them.

MS ARCHER: In that respect, yes. The mandatory direction is, "You must consider wilful murder first". The permissive direction is, "You can consider the unlawfulness, which is an element of all three - you can consider the unlawfulness first". So the fact that he is directing them first to an element that is common to all three does not tell you where he is starting.

GLEESON CJ: It depends what you mean by "consider", does it not? There is an ambiguity in that word.

MS ARCHER: There is - there certainly is. It is the appellant's submission that his Honour was directing them about their deliberations rather than the delivery of their verdicts, and with respect to the respondent's submissions and the appellant's submissions there is a significant difference between those two things.

The final remark that I wish to address was a comment that your Honour Justice Hayne made about whether or not you could tell a jury that they could disagree, and your Honour indicated that if you told them that they could disagree that that could send you off down some fairly treacherous train tracks.

The appellant would certainly concede that it could be dangerous to tell the jury that they can disagree, but it is the appellant's submission that you should not tell them that they cannot. It is that that it is said the learned trial judge did.

GLEESON CJ: In your argument about reversal of the onus of proof you fastened on what was said at the top of page 217.

MS ARCHER: Not just that, your Honour, but also what is on that same page at 28 and 29.

GLEESON CJ: What is your answer to the argument put against you that when you look at the wider context in which what is said on page 217 appears, going back to the preceding pages and following on to the succeeding pages, it is unlikely that a jury would think that the trial judge meant what would be a reversal of the onus of proof and, in addition, that that consideration is reinforced by the fact that it apparently never occurred to anybody at the trial that on page 217 the trial judge was reversing the onus of proof?

MS ARCHER: With respect, your Honour, the appellant's submission is that in all of those passages his Honour was reversing the onus of proof but in some less obviously than others. The most obvious one is the one at the top of page 217, but even when his Honour says at line 28 of that page, "If you are unanimously of the view that the crime of murder has not been proved", that is still, with respect, a reversal of the onus. His Honour is not saying, "If you all lack satisfaction that the crime of murder has been proved". His Honour is saying, "If you are unanimously of the view that the crime of murder has not been proved", and there is a fundamental difference between an absence of satisfaction, a lack of satisfaction, and a state of positive satisfaction that something does not exist.

GLEESON CJ: What do you say about what appears on page 203 line 40?

MS ARCHER: As I said this morning, at the commencement of his Honour's charge he properly directed the jury about who bore the burden, the standard of proof and the presumption of innocence and his Honour explained all of the consequences that flow from that.

GLEESON CJ: He described this as a "fundamental rule".

MS ARCHER: Yes. The appellant is not suggesting that his Honour - - -

GLEESON CJ: I.....because it usually gets a run very early on in directions to juries. In fact, it is repeated over and over and over again during the course of a trial.

MS ARCHER: That is certainly correct, your Honour. The appellant is not suggesting that the learned trial judge misdirected the jury about what was required to convict. The criticism is that his Honour misdirected the jury about what was required to acquit. They were properly directed as to what they were required to be satisfied of and to what degree and to who bore the burden to be satisfied of wilful murder, but Gilbert's Case will tell us that that is not an answer to the fact that he ultimately was convicted of wilful murder.

GLEESON CJ: You said they were told what was necessary in order to reach an acquittal?

MS ARCHER: They were misdirected about what was necessary to reach an acquittal, and this is the reversal of onus point. They were told that before they could acquit they had to be unanimously of the view that the crime had not been proved. So they were misdirected about what was required to acquit. What they should have been told is, "If you all lack satisfaction beyond reasonable doubt, then you must acquit".

GLEESON CJ: What is the different between lacking a state of satisfaction and believing that something has not been proved?

MS ARCHER: A common example is the difference between somebody who is satisfied that God does not exist and somebody who may not be satisfied that God exists. There is a fundamental distinction between those two things.

GLEESON CJ: I understand the distinction between atheism and agnosticism, but I am just puzzled at the suggestion that that applies here. It is a very important suggestion because if you were right about that point, then all sorts of consequences follow in relation to the proviso.

MS ARCHER: That is correct, your Honour.

GLEESON CJ: That is why I want to be perfectly sure I understand the point.

MS ARCHER: Well, I am obliged for the opportunity because it is the appellant's submission that this is a fundamental error. The analogy I gave this morning, which is turning it around to indicate how fundamental the burden of proof is, is that you can properly tell a jury that unless they are satisfied beyond reasonable doubt they must not convict - that would be a proper direction - but you could not tell a jury, "You must convict unless you are not satisfied beyond reasonable doubt".

So what those two analogies illustrate, firstly, the analogy about the existence of God - that illustrates the difference between a lack of satisfaction and a positive state of dissatisfaction, which is one of the problems. The analogy in relation to the conviction illustrates the other problem which is specific to the law, the criminal law, and that is where the burden of proof rests on one party what, in logic, may be a contra-positive in the sense that if the first is true the second is necessarily true, will not be, in law, because of the burden of proof and that is a fundamental error and it is precisely what the learned trial judge did in this case.

Whether his Honour used the words "has not been committed" or whether his Honour used the words "had not been proved" has no bearing on that issue. It is enhanced by the fact that his Honour said "unanimously of the view" which enhances the suggestion that he is requiring a positive state of dissatisfaction and the answer to the question that was given again reinforces this requirement that the finding of not guilty is in fact a positive finding.

Unless there is anything I can assist the Court with that is the appellant's reply.

GLEESON CJ: Thank you, Ms Archer. We will reserve our decision in this matter and we will adjourn until 10.15 am tomorrow.

AT 3.29 PM THE MATTER WAS ADJOURNED