Crabbe, Douglas John Edwin v the Queen

[1984] FCA 360

Re: DOUGLAS JOHN EDWIN CRABBE
And: THE QUEEN
No. NTG 10 of 1984
Criminal Law
56 ALR 733

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Muirhead J.
Beaumont J.

CATCHWORDS

CRIMINAL LAW - murder - recklessness - direction to jury - foresight of presence of people who could be killed or injured by dangerous unlawful act - probability - possibility combined with wilful blindness.

CRIMINAL LAW - evidence - whether accused gave evidence of his own good character - cross-examination of accused concerning conviction for previous violent act and threat to perform similar act - discretion of judge.

Evidence Act (NT) s.9(7)

HEARING

DARWIN

#DATE 2:11:1984

ORDER

1. The appeal be allowed and the convictions set aside.

2. The appellant be remanded in custody to await a new trial.

JUDGE1

In this matter I have had the advantage of reading the draft reasons for judgment of Muirhead J. He has set out in appropriate detail the relevant facts concerning the alleged offence, the evidence given at the trial and the conduct of the trial, and I shall not repeat them any more than is necessary. I shall go straight to the questions raised by the appeal.

The first is whether the appellant gave evidence of his own good character, within the meaning of s.9(7) of the Evidence Act of the Northern Territory, thus making himself liable to cross-examination designed to show that he had committed or been convicted of an offence or was of bad character.

The appellant was charged with murdering five people by driving his truck through the wall of a motel bar from which he had been forcibly evicted some hour or more earlier. In his evidence on oath he did not specifically admit responsibility, nor did he deny it. His line of defence was to deny ever forming the intent to harm anyone, to say that he could not remember or understand how it came about, and to put the Crown to its proofs.

Toward the end of his evidence-in-chief he was asked about his belief as to his own involvement at the time he was first questioned about the occurrence. He replied

"I hadn't formed any belief then. I was sort of - in my mind I was trying - I was asking myself how I could have been connected with it. I don't consider myself capable of doing something like that."

Soon afterwards he was asked if he could think of any reason that might have made him do it. He said, "None whatsoever. No." He was then asked if he had thought about the matter and replied,

"I have had 6 months with probably nothing else on my mind, you know. I still don't believe that I'd be capable of doing something like that. Definitely I had no reason."

Finally he was asked if he could offer any explanation, if he had been the driver, why he would have done such a thing. He said,

"None whatsoever. I don't feel I'd be capable of doing such a thing. You know, for years I'd driven trucks, looked after them as if they were my own. To straight away, you know, half destroy one - it's completely against me, you know."

It was then argued by the crown prosecutor and, after careful consideration over a week-end break, accepted by the learned trial judge, that in these three answers - given against a background of earlier evidence about his regular employment in the trucking industry - the appellant had given evidence of his own good character. As the crown prosecutor later put the matter to the jury, he had said, in effect, 'I am not the sort of man who would do this thing'.

I think it is clear that, if he had said, in terms, 'I am not the sort of man who would be capable of doing this thing', he would have put his character in issue. If, on the other hand, he had said, 'I find it hard to understand how I could be capable of doing such a thing', then in my view it would be equally clear that he was not putting his character in issue.

The words actually used by the appellant seem to have been carefully considered. Although they varied slightly ("I don't consider myself capable . . . ."; "I still don't believe that I'd be capable . . . ."; "I don't feel I'd be capable . . . ."), they were used three times, over several minutes of evidence, at the crucial stage of the trial when he had, in effect, to state his defence in his own words - to try to explain the actions which he could not dispute.

In order to determine whether this statement of his defence involved giving evidence of his own good character, I think it is necessary to look at the matter broadly, and not merely analyse the actual words used on the three occasions. Using this approach, I think the jury would have understood the appellant to be asking it to accept that he was not a man who would deliberately or recklessly injure other people, or even damage a truck (which in his third answer seems to have loomed larger in his mind), just because he had been manhandled or insulted in a motel bar. Such an act would have been "completely against" his character.

Given the evidence before the Court, he could not say that he did not do the act, or that he did it accidentally. He said simply that he had no motive for such behaviour, and asked the jury to accept that he was not a man capable of doing such a dreadful thing.

My view that this amounted to putting his character in issue is confirmed by a consideration of the way in which his counsel later put his client's defence to the jury.

Counsel said, at the outset of his address,

". . . when this is all over no matter what happens, the weight of those events, and the awful events that evening will hang no more heavily on anyone than on Mr. Crabbe, and it's clear that in some fashion or other he was involved, and that's not something we will try to deny either."

Later he said,

". . . I can't really provide you with any rational framework. It's not my responsibility to do it. Mr. Crabbe can't offer any explanation. He can't remember."

Coming to the crux of the defence, after stating the elements of intention or recklessness which the Crown was required to prove, counsel said,

"I've pointed to two or three things which I think you should look at very carefully. One of them, of course, is the fact that he didn't really demonstrate in my view the sort of anger or hostility, or the reaction to being chucked out of the pub that would prompt that ghastly act. I think I've said that. In fact, given his background and his previous experience and so forth, some of which you've heard, it's hardly on form to do such a thing, given him, as you might assess him as a witness in the witness-box as a knock-about sort of a bloke; as a truckie; not somebody who's completely innocent of the ways of the world."

Counsel went on to suggest a possible alternative view of the facts, involving the deliberate destruction of the bar, but without any knowledge that there were people in it at the time. He then said,

". . . I ask you to see this act in the terms that the Crown would put it to you, as an inconceivable act, an act of a madman, if you like, an act totally outside our human experience and outside the experience and the capacities of that man, because there's nothing - from the way he came before you in the witness-box, or any other way, which would indicate that sort of propensity to do such a thing. It's just - to get thrown out of pubs; to get stroppy in bars, maybe; have a few too many "sherbets" etcetera, maybe; behaviour in a stroppy way, occasionally; get into fights with blokes, it's probably happened to most of the men in the box perhaps. Maybe all of those things are within his nature and he's capable of them.

But, is he capable of such an awful thing? Well, I'd submit, ladies and gentlemen, you don't have to sort of wrestle with the enormity of that, because they haven't proved that he knew that they were in that bar at that time."

I think it is clear from these extracts that the defence did intend to put the appellant's character in issue, and would have made much more of the point if no cross-examination had been permitted.

This brings me to the second point of this appeal, which is whether the learned trial judge erred in exercising his discretion in favour of permitting cross-examination once the appellant had laid himself open to it.

As Muirhead J. has shown, the authorities establish that cross-examination of an accused as to his character, even when permitted by statute, should only be allowed in exceptional circumstances. When the crime is one which appears to show a brutal disregard for the physical safety of strangers, and a central theme of the defence is the accused's own claim that he would not be capable of such an action, then in my view the circumstances are exceptional. It could even be argued that it would be positively wrong to allow the jury to retire to consider its verdict on the basis that this claim had passed without challenge, when the Crown was in possession of proper material for cross-examination strongly tending to show the untruth of the claim.

In my view the learned trial judge was fully justified in allowing the crown prosecutor to put to the appellant a recent conviction for an act of wanton violence against the property of strangers (the Tennant Creek incident of February 1983), and to question him about the circumstances of that offence. This was entirely appropriate to test the credibility of his evidence that he would not be capable of deliberately damaging the truck he was driving and injuring strangers in the process.

I have felt much more doubt about the putting to the accused of his alleged threat, in March 1983, to drive his truck into the liquor store at Curtain Springs, after he had twice been thrown out of its bar. Had he admitted the allegation it would, of course, have provided a substantial and directly relevant contradiction of his claim that he did not regard himself as being capable of such wantonly violent conduct. If he could threaten such an act on one occasion, it would make it more understandable that he could bring himself to carry it out on another occasion. But, while admitting most of what was put to him about the Curtain Springs incident, the appellant denied the threat.

The impact of this allegation on the jury must have been considerable and, although it was denied, they must have had difficulty in disregarding it, as they were instructed to do.

The fact that the threat, even though it would probably be denied, could nevertheless have a prejudicial effect on the appellant's case, was undoubtedly present to the mind of the learned trial judge. Counsel adverted directly to it in argument as to the exercise of discretion. However his Honour decided that the nature of the defence raised by the appellant in his evidence-in-chief justified the putting of the question in cross-examination. Bearing in mind the advantage a trial judge has in gauging the intention and effect of evidence, and applying the well-known principles which govern the review by an appellate court of a trial judge's exercise of discretion, I am not prepared to say that his Honour was wrong to allow the question.

The other grounds of appeal relate to the learned trial judge's instructions to the jury on the definitions of murder by reckless conduct and manslaughter.

No objection was, or could have been, taken by defence counsel to his Honour's original charge to the jury on these matters. On six separate occasions he accurately defined murder by reckless conduct. At the end of that charge, the crown prosecutor invited his Honour to tell the jury that, when considering the subject of murder by reckless conduct, they did not need to be satisfied in the present case that the appellant knew there were people in the bar when he drove his truck at the motel. It would suffice if he recognized that possibility and deliberately closed his eyes to the question. Counsel referred to "what Professor Howard terms wilful blindness".

His Honour, without objection from defence counsel, complied with this request, instructing the jury in the following terms,

"I said to you, you will recall, that you had to be satisfied beyond reasonable doubt, on the question of recklessness, that he knew that there would be people in the bar.

It is also a matter of law, of which I have been reminded, that if he thought there might have been, but chose to blind himself, chose not to avail himself of any opportunity of finding out. In other words, if he swept round the corner and his state of mind then was that there might be people in there, but he just went straight ahead blinding himself, not giving himself the opportunity of finding out if there were going to be any people in there. So that he cannot - if he deliberately stops himself being able to see whether or not there were people in there, as a deliberate choice. If he says, "Well, I'm going to go ahead anyway. I think there might be people in there, but I'm not going to have a look, so no-one can say I know, because I didn't look."

Is that clear to you, that if he blinds himself to the possibility, so to speak, well, then he cannot hide behind that. He cannot say that hiding behind his lack of actual knowledge."

Then, after the jury had retired, they returned and asked to be given, in writing, a further full definition of murder and manslaughter. The learned trial judge declined to give directions in writing, and it is the way his Honour then dealt with murder by reckless conduct, and with manslaughter, in response to this request of the jury, which is the subject of appeal.

His Honour told the jury,

"A man commits murder if he kills somebody, having at the time that he did the action which caused the death, an intention to kill, or an intention to do really serious bodily injury; or, if when he kills someone, his state of mind is such that he knows what he's about to do is likely to kill someone, but nevertheless goes ahead and does that act with reckless indifference to the consequences; or, and this is the final alternative, if, when he does an act, he foresees the possibility that what he does might cause death, or really serious bodily injury, nevertheless takes no reasonable available step to ascertain whether or not it will.

Now, I'll apply those things that I've told you to the case in hand. There appears, as I said to you earlier, to be no dispute that Crabbe killed these people, in the sense that he drove the prime mover and semi-trailer into the bar of this motel at Ayers Rock, and that thereby he caused the deaths of these five people, so that, when you're considering whether or not he is guilty of murder, you have to consider the state of his mind at the time that he did it. If you're satisfied beyond reasonable doubt that when he drove the truck into the motel, he intended to cause death or really serious bodily harm to whoever might be in there, then he's guilty of murder. If you're satisfied beyond reasonable doubt that his state of mind was that he knew that it was likely that if he drove the truck into the motel bar, that he would cause death or really serious bodily injury, then he is guilty of murder. He's further guilty of murder if you're satisfied beyond reasonable doubt that he foresaw the possibility that there might be some people in the bar, but didn't take any step that might have been available to him to find out whether there were any people there or not, before he went ahead and drove the vehicle in."

"A man commits manslaughter if he kills without any of those states of mind which I've mentioned to you, that is, the intention to kill or do serious harm, or recklessly, in the two ways I've described to you, that he knew, or that he foresaw the possibility and didn't take any steps to find out. If he kills someone without any of those states of mind, by performing an unlawful and dangerous act - I told you that to drive a motor vehicle of this sort into a building like the bar at the Inland Motel is an unlawful act, it's for you to decide if you get this far, whether or not it's a dangerous thing to do. It becomes dangerous in somewhat the same way as the criteria that you use for recklessness, that is to say, it's a dangerous thing to do if there were any people in there, or if there might reasonably be thought to be any people in there."

With the benefit of hindsight, and with great respect to the very experienced trial judge, I think it would have been better if his Honour had declined the crown prosecutor's request to direct on the principle of 'wilful blindness'.

In the first place, there appears to be little, if any, precedent for its use in a case of murder by recklessness, which is itself a difficult concept, not yet authoritatively defined in this country.

Secondly, the proper formulation of the principle seems to be uncertain. Glanville Williams' "Criminal Law - The General Part" 2nd Ed at p. 159, refers to it as "an unstable rule" and asserts

"A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness."

Professor Howard, in his Australian Criminal Law 4th Ed. p. 54 says,

"There is one case in which the law will regard D as having killed recklessly even though he foresaw no more than the bare possibility that someone might be killed, and that is where, having foreseen this possibility, he deliberately took no steps to ascertain the magnitude of the risk. D is not permitted to conceal from himself that he is creating a substantial danger to life and then argue that he did not foresee the risk he was taking.

An example is where D sets fire to a house knowing that someone may be within but not troubling to find out if anyone is in fact inside. If he thereby kills V he is guilty of murder by recklessness regardless of the felony-murder rule."

The dividing line between death by reckless conduct and manslaughter is already somewhat blurred - and if Prof. Howard is right in what he says, the distinction is very fine indeed. As the present Chief Justice said in La Fontaine v The Queen (1976) 136 CLR 62 at 77,

"It is not easy to explain to a jury the difference between the reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter."

I assume for present purposes that the view expressed in La Fontaine by Gibbs J. (as he then was), that in such cases "an accused will not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour", is the view which will ultimately prevail in the High Court. (See, however, Barwick CJ and Windeyer J. in Pemble v The Queen (1971) 124 CLR 107 and Stephen J. in La Fontaine (above) at p. 86, each of whom speak in terms of 'possible' consequences.)

In the present case the learned trial judge referred throughout his original charge to the jury's having to be satisfied of the appellant's foresight of the probability or likelihood that death or serious injury would result from his conduct.

To add a gloss based on 'wilful blindness', expressed generally in the terms used (without citation of authority) by Professor Howard, may possibly have caused the jury some difficulty, even though his Honour was careful to limit the gloss to the case of a "deliberate choice" not to ascertain the true facts.

Whether it was this, or a failure to understand his Honour's earlier clear charge, that led the jury to ask for "the full definition of murder and the full definition of manslaughter preferably written down so that we can discuss them" we cannot know. However this is what the jury sought, and his Honour's final directions must be read in this context.

It is in these circumstances that I find myself unable to say that the paragraphs which I have set out above adequately instructed the jury as to the difference between murder by recklessness and manslaughter.

The facts of the present case raise the issue fairly and squarely. There can be no doubt that the appellant deliberately drove his truck into the wall of the motel bar. He gave no evidence himself as to his state of mind at the time, claiming to have no memory of it. His counsel, on his behalf, suggested the possibility that he may have intended to damage the structure but did not know there was anyone inside - the time being 1.30 in the morning. There was evidence touching on this issue of his probable knowledge, which was clearly a matter for the jury.

Putting aside, for present purposes, the possibility that the appellant intended to kill or maim (though such a finding was clearly open to the jury), it is reasonable to assume that the jury would have taken the view that a person driving a heavy truck into an insubstantial bar-room, with people in it, would foresee the probability of death or serious injury - though this was a question of fact for the jury. On this assumption, the only remaining questions for the jury were,

(a) did the appellant know there were people in the bar-room as he drove at it?

(b) did the appellant know that it was probable there would be people in the bar-room?

(c) did the appellant appreciate the possibility that people could be in the bar-room?

(d) did the appellant have no belief either way as to whether or not people would be in the bar-room? or

(e) did the appellant have a positive belief that no-one would be in the bar-room?
As a matter of law, the answer 'yes' to either of the first two questions should have led to a finding of guilty of murder. But if they were answered 'no', then whichever of the other three questions was answered 'yes', the appellant should, in my view, have been found guilty of manslaughter, (bearing in mind that there were no reasonable grounds for a belief that the bar-room was empty).

These were the questions facing the jury as a matter of logic. In legal terms the relevant questions might have been framed along the following lines:

1. Are you satisfied beyond reasonable doubt that the accused knew that people were in the bar-room, or were probably in the bar-room, and that some of those people would probably be killed or seriously injured if he drove his truck into it, and yet in spite of that he deliberately drove his truck into it? If so, you will find the accused guilty of murder.

2. If no to 1, are you satisfied beyond reasonable doubt that the accused knew or should have known that people could possibly be in the bar-room at the time, and that his act in driving his truck into it was a dangerous and unlawful act? If so, you will find the accused guilty of manslaughter.

In my view, the learned trial judge did not correctly state the law when he said,

". . . He's further guilty of murder if you're satisfied beyond reasonable doubt that he foresaw the possibility that there might be some people in the bar, but didn't take any step that might have been available to him to find out whether there were any people there or not, before he went ahead and drove the vehicle in."

Apart from the omission of the word "deliberately" before the words "didn't take any step" this is an accurate paraphrase of the principle proposed by Prof. Howard (above). But with respect to the professor and to the learned trial judge, I do not believe it correctly states the very limited principle of "wilful blindness", which in my view is more accurately stated by Prof. Glanville Williams (above). Expressed as it was to the jury it suggests that foreseeing a possibility of death or serious injury and failing to check on that possibility has the same result in law as foreseeing a probability of death or serious injury. I believe the balance of Australian authority is against that proposition (see Pemble v The Queen (above), La Fontaine v The Queen (above) and R v Windsor 1982 VR 89).

For the same reason I am bound to say that I believe the learned trial judge was in error when he said in the final paragraph of his response to the jury's request that the appellant was guilty of murder if he killed recklessly when "he foresaw the possibility (of death or serious harm) and didn't take any steps to find out", but was guilty of manslaughter if he did not have that state of mind but performed an act which was unlawful and dangerous, in the sense that ". . . It becomes dangerous in somewhat the same way as the criteria that you use for recklessness, that is to say, it's a dangerous thing to do if there were any people in there or if there might reasonably be thought to be any people in there."

Apart from repeating the error which in my view occurred in the previous paragraph, I do not believe that the words used adequately drew the jury's attention to the objective nature of the test for manslaughter. "The test is not did the accused recognise that it was dangerous, but would all sober and reasonable people recognise its danger", (Archbold Criminal Pleading and Practice 41st Ed p. 1420.)

For these reasons I think the appeal should be allowed, the convictions set aside, and the appellant remanded in custody to await a new trial.

JUDGE2

On 21 March 1984 in the Supreme Court of the Northern Territory, sitting at Alice Springs, the appellant was convicted by unanimous verdicts of a jury upon five counts of murder. He has appealed against these convictions.

The first two grounds of appeal are as follows:-

"That the learned trial Judge erred:

(a) in granting the Crown leave to crossexamine the Appellant as to an incident alleged to have taken place at Curtin Springs on 24th March 1983 and as to the events which resulted in previous conviction for malicious damage;

(b) in permitting the Crown to put to the Appellant that upon the occasion of the alleged incident at Curtin Springs on 24th March 1982 (sic) that he said to Mr Peter Severin, 'If that's the case I'll drive my truck through the pub'."

The charges against the defendant arose by reason of the fact that he was alleged to have driven a large prime mover and trailer into a bar killing five people in the process. The alleged offences occurred in the early hours of the morning of the 18th August 1983 in a motel near Ayers Rock.

It is not necessary to recite the facts in great detail. It was not in dispute that the appellant had driven a road train, constituted by a prime mover and three trailers, to Ayers Rock on 17th August. He there uncoupled one trailer and went about his work delivering, loading and unloading. Later during the evening, after he had, on his evidence, consumed a substantial amount of alcohol, he visited the Inland Motel and drank in a crowded bar. There was no contest at trial that his behaviour in the bar had caused nuisance and annoyance. He was physically ejected from the bar. He was seen to "glare" at the assembled guests and drinkers and he went off into the night.

In the early hours of the morning following this incident he returned to the bar at the controls of his prime mover to which one, not two, trailers were attached. The prime mover made a sudden violent and destructive entry, as a result of which five died and many were injured. The motor of the prime mover was operating. The appellant did nothing to assist. He was seen to smile; he stepped from the cabin and left the motel. It is probable he spent the night in the bush. He was next seen the following day when he walked into Uluru Village where he was apprehended. The evidence of a witness Mr W.H. O'Neill, who was the first to converse with the appellant, suggested that the appellant was aware of what had occurred during the early hours. O'Neill stated that he said to the appellant "Do you realise you are in serious trouble?" to which the appellant replied "Yes". At trial the appellant said his reply was "Eh", not "Yes". O'Neill stated that the appellant a little later asked "How bad is it?"

The appellant was treated with complete courtesy and fairness by the Northern Territory police and almost at their urging took legal advice before interrogation proceeded far. As a consequence no record of interview as to the accused's memory of events was placed before the jury.

The trial commenced on 12 March 1984 and concluded on 21 March 1984. A view of the bar was conducted at Ayers Rock.

The appellant was represented by counsel at the trial and at the conclusion of the Crown case he elected to give evidence on oath. He was not bound to do so as the events took place before the Criminal Code (which has abolished an accused's right to make an unsworn statement) became law in the Northern Territory. His evidence commenced with a detailed history of his working life and experience with vehicles. He gave evidence as to his activities during the day and evening, again in great detail. Clearly upon his evidence he had much alcohol or liquor to drink although in the conduct of the defence, including the cross examination of Crown witnesses, no suggestion was made that he was drunk or that by virtue of alcohol consumed he was incapable of forming a specific intent.

He then told of his visit to the Inland Motel. He left his large vehicle 400 metres or so from the motel. He then described the period he drank in the motel. As to concluding events in the bar he described his removal and his reaction to that removal in the following terms :-

"Now, you have told us you recall moving this lady, young woman, out of the way going towards the back of the bar. Can you tell us what you recall next? - - - Of being held around the neck and dragged from behind the bar.

Do you recall anything that happened before you were grabbed around the neck? - - - No, I don't, no.

What do you recall after being dragged around the neck and dragged from behind the bar? - - - Of being held on the floor. I was let up, and I walked out.

Can you remember how you felt at this time? - - - To what respect like?

Well, when you were grabbed around the neck? - - - Well, I felt choked.

What about when you were dragged, pulled out from behind the bar? - - - Well, that's the only feeling that I had of being choked, you know, until I was let up.

Do you recall any conversation at the time that you were let up? - - - No, I don't, no.

Can you tell us how you felt at that time? - - - When I was let up? Slightly embarrassed, you know. I think I realised I'd made a fool of myself and well, I could say that the message had sunk in, I wasn't to be served any more, and that was it.

Did you feel any other feelings, rather than embarrassment? - - - No.

Are you sure about that? - - - I'm dead sure, yes . . .

At that time did you have any feelings about what had happened, apart from embarrassment? - - - No, I don't - I don't - no feeling towards it at all. Obviously I was in the wrong; that was it.

Up until that evening, had you had any dealings with the bar staff at the Inland of any shape and form? - - - No.

Did you know them? - - - No.

When you were let up, did you have any feelings about them at that point? - - - No.

Are you sure about that? - - - I'm sure, yes.

Up until that time had you had any arguments with anybody in the bar that you can recall? - - - No.

Had anybody said anything to you that might have offended you? - - - Not that I can recall, no."

He then described his return to the vehicle, his subsequent movements, his efforts to sleep, his removal of the second trailer as he had decided to seek a drink at the Chalet motel where vehicle access was restricted. He stated he fell and winded himself whilst climbing into the cabin of the vehicle. He said that without undressing he lay down to sleep in the cabin. He described the following events as follows:-

"What do you recall after that? - - - Like as of now or?

Well, what have you been able to recall since the day? - - - Very, very vague recollection of the exhaust noise.

When did you first recall that? - - - Only some matter of months ago. I don't know. I couldn't say exactly when, as to a date, you know. Since the committal hearing. I've often asked myself why I could, you know, remember the exhaust noise because I was familiar with that vehicle, you know.

MR BURBRIDGE: I object, Your Honour. It's not responsive to the question.

MR WATERS: Yes, tell us why it seems significant to you? - - - It just seemed louder. That's about all.

What else can you recall? - - - I also have a very vague recollection of pushing the door open, pushing on the window to open the door.

If I could just take you one back a bit. You say it seemed louder. Louder than what, the exhaust noise? - - - Just louder than what I was accustomed to with that vehicle.

Did that recollection cause you any concern? - - - I've often wondered why that sort of comes to mind, yes.

You have told us that you recall pushing against the glass to open the - - - ? - - - That's right, yes. But I feel I was kneeling on the seat. I was like much higher, you know. My head was near the roof and pushing on the top of the door to open it.

When did you obtain that recollection? - - - At the same time I remembered the exhaust noise of the truck.

That was when? - - - I couldn't put a definite time on it, definitely since the committal hearing.

Since the committal hearing? - - - Yes.

What else do you remember? - - - What is the next thing you remember? - - - Standing outside the Inland Motel. That is a recollection I have had all the time, you know, a very vivid recollection. Looking out into the car-park, you know, from outside the building. There was one fellow more or less the other side of the car-park standing beside a car. There was another fellow running towards him, and I believe it was the one furthest away called out to his friend, or I believe them to be acquaintances, you know. He called out, 'Run. Run. The cops are coming', or, 'Run. Run. The cops are coming or here", or something, you know. And after that I can remember running myself, you know.

Well, that statement that you've just told us about, can you recall towards whom that was directed? - - - I believe to the one that was running towards the other one.

How far do you recall that you were away from these 2 figures when you heard that statement? - - - Well, in distance?

Yes? - - - I don't know about distance. I can only form an idea of distance since we've been to the Inland like. The furthest one away was the other side of the carpark, and the other fellow was between us.

When you say the car-park, do you mean the area ranking immediately outside the accommodation units or the area further out? - - - No, the area enclosed by the accommodation units.

What else do you recall? - - - I remember running; picking myself up several times and running again."

Then in the course of what was a very long examination-in-chief it appeared that the fact that the appellant was the driver of the vehicle was not really in issue. The passage is of importance and I have underlined some passages for emphasis -

"You are aware of course, Mr Crabbe, of all the evidence that you've heard in this court? - - - Yes.

And that it points to the fact that you might have been the driver of the vehicle in that incident? - - - It does point that way, yes.

Did you have any belief about that at the time that you started to answer these questions by Sergeant McLeod? - - - A belief in - - -?

As to who might have done it? - - - No. I hadn't formed any belief then. I was sort of - in my mind I was trying - I was asking myself how I could have been connected with it. I don't consider myself capable of doing something like that.

Do you think, now, that the piss, as you put it, was put could have made you do it? - - - I don't see where that's got anything to do with it. I had a lot to drink, yes, but I can't see where that's connected with it, no.

Have you thought - - -

MR BURBRIDGE: I'm sorry, Your Honour. May I have that answer again, I missed the answer. He said he'd had a lot to drink but I missed the following part.

HIS HONOUR: 'I couldn't see what that had to do with it.' That's as near as I can remember."

His counsel then put the situation to him again.

"MR WATERS: Can you think of any reason that might have made you do it? - - - None whatsoever, no.

Have you given that some thought since it occurred? - - - I have had 6 months with probably nothing else on my mind, you know. I still don't believe that I'd be capable of doing something like that. Definitely I had no reason.

Did you consider your ejection from the bar as a possible reason? - - - No, I don't.

Why not? - - - Well, if people retaliated to being refused drinks like that, I don't consider that any reason at all.

Or the fact that you'd been in a fight? - - - I hadn't really been in a fight. I'd been suppressed. I hadn't been in a fight to what I'd call a fight, no. Forcibly suppressed or however it could be put, you know - but like I say not a fight as I know it.

Have you thought about your feelings towards the people that suppressed you? - - - Well, there's no reason why I should feel anything towards them. If the situation was reversed, I'd probably do the same thing myself.

What is that? - - - If I was in a position to, well, eject troublesome customers or whatever, you know, I wouldn't hesitate.

Now, can I just take you back to a couple of the matters that we could have perhaps dealt with earlier? You will recall one of the ladies at the Inland saying that you turned to her friend or to another lass nearby and for no apparent reason called her a bitch; do you recall that evidence? - - - I recall the evidence, yes.

Do you recall that incident at all? - - - No, I don't recall the incident.

Or anything similar to that? - - - No."

Then again towards the conclusion of his evidence-in-chief a similar response emerged.

"Mr Crabbe, Sergeant McLeod gave evidence that at one point you became visibly upset and cried. Do you recall him giving that evidence? - - - Yes.

When did that happen? - - - After I received a telephone call.

Where did you receive the telephone call? - - - In one of the rooms of the police station.

By that time did you know what had been alleged against you? - - - Yes.

Mr Crabbe, can you offer to this court any explanation, if in fact you were the driver of that vehicle, why you would have done such a thing? - - - None whatsoever. I don't feel I'd be capable of doing such a thing. You know, for years I'd driven trucks, looked after them as if they were my own. To straight away, you know, half destroy one - it's completely against me, you know."

At no stage during examination-in-chief was any indication given by the Crown Prosecutor that the appellant's answers tended to set up his character.

Section 9, sub-section 7 of the Evidence Act in the Territory is in traditional form -

"An accused person who is called as a witness shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that with which he is then charged, or is of bad character, unless

(a) . . .

(b) . . . he . . . has given evidence of his good character

(c) . . ."

The Crown Prosecutor before embarking on cross examination sought leave to cross examine in respect of an incident which occurred on 24 March 1983 at Curtin Springs Station (between Alice Springs and Ayers Rock) when the appellant was involved in an altercation at the store (licensed premises) and having been physically restrained and told he was "banned from the pub" had allegedly said "Well, if that's the case I'll drive me truck through the Pub". These words were allegedly spoken about five months before the crimes charged. He also sought leave to cross examine the appellant concerning an incident at Tennant Creek, in February 1983, when, after drinking, he had been involved in a fracas with some youths, the occupants of a car the appellant damaged in his apparent anger. The appellant had been charged "for wilful and malicious damage" to the vehicle - a charge which he did not defend.

The appellant's counsel strongly contested the application and argument ensued. From the outset it appears the learned trial judge took the view that in the passages referred to the appellant had indeed given evidence of his good character. At the conclusion of the day the court adjourned to the following Monday when the learned trial judge gave leave to the Crown to cross examine on both issues. The appellant basically admitted his behaviour at Tennant Creek in February 1983 and admitted also that an episode of the nature alleged had occurred at Curtin Springs on 24 March. He strongly denied threatening to drive his vehicle "through the pub" and saying any words to that effect. At the conclusion of the appellant's testimony the Crown Prosecutor commenced his address. Ample use was made of the appellant's admissions in cross examination concerning these incidents. No reference was made to the appellant's alleged threat which he had denied. The Crown Prosecutor in dealing with the Tennant Creek incident summarised his submissions to the jury -

"Well, this is a man who asks you to accept that he is not the sort of man who would inflict damage on a truck, and inferentially, on a bar with people inside. Well, you may think that a man who acts that way is unworthy of credit, who could say to you in the face of that, and then when he's charged with the matter, doesn't defend it; doesn't defend the action at all. Well, you may think that that would help you evaluate how much reliance you can place on his assertion, 'I am not that sort of man.' Is he that sort of man? Is he the sort of man who having been angered, as he admits, in the Inland bar - remember him saying, 'Oh no, I wasn't angry. I wasn't angry.'"

Viewing the matter objectively there can be no doubt that the admission of these incidents into evidence in cross examination by leave of the trial judge and towards the end of the trial was likely to have its impact bearing in mind the Crown case was a strong one. Undoubtedly it was prejudicial to the appellant's case, but provided the learned trial judge properly characterised the evidence as evidence of good character and then exercised his discretion as to its admission such prejudice may not be to the point. It is of course a matter for determination in the exercise of that discretion.

Appreciating the impact the very suggestion of driving through the store at Curtin Springs was likely to have upon the jurors, the learned trial judge in his summing up emphasised to them that there was no evidence "that he ever made a previous threat to drive a truck through a pub", that they could not use this evidence as indicating a propensity in the accused to commit such a crime and that the jurors should only, if they wished, use such evidence "to discredit his evidence in order to make his evidence or some points of it less believable". (This direction appears at p. 541 of the transcript). The question therefore is whether it was open to the learned trial judge to hold that by these three responses, general, in form, it could be said that the appellant thereby "gave evidence of his good character". His Honour was of course bound in deciding this issue to take into account what had gone before in evidence. There has been much discussion over the years as to what constitutes "evidence of good character".

"The expression 'bad character' in relation to a witness has no technical or legal meaning. The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg. v. Rowton (1865) Le. & Ca. 520 (169 E.R. 1497). Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt."

(Attwood v. The Queen (1960) 102 CLR 353 at 359).

Upon modern authority "good character" for the purposes of the section row refers to disposition in addition to general good reputation. See, for example Stirland v. Director of Public Prosecutions 1944 AC 315 per Viscount Simon at 324. In that case (at p. 326) the Lord Chancellor set out certain propositions relevant to cross examination as to credit. I will not set them out in full save to refer to the second he enunciated -

"He may however, be cross examined as to any of the evidence he has given in chief, including statements concerning his good record, with a view of testing his veracity or accuracy or to showing that he is not to be believed on his oath."

The authorities indicate that a reference to past reactions in relevant situations (R. v. Samuels (1956) 40 CAR 8) may be classified as placing character in issue as also may remarks as to past attitudes or practices. Generally speaking the aspect of "good character" in issue will have a factual association with the events or behaviour in issue at trial and it may, in a case such as this, have little association with general honesty. I do not think that the appeal as to this issue can be decided by analysis of the many cases we have been referred to. The principles are clear but we should not interfere unless it can be said that the learned trial judge erred in law in finding that the accused had given evidence of his good character or, having found that, erred in failing to exercise his discretion based on well established principles of fairness. From time to time tests are laid claim by the authors of text books or the courts (see Stirland v. Director of Public Prosecution (above) at 326; Watson and Purnell, Criminal Law in New South Wales Vol. 1. 1188; Cross on Evidence (2nd Australian Edition 15-22); Character Cross-Examination of Accused Persons (1969) 43 ALJ 569 at 572). There is of course no substitute for the responsibilities and presence at trial, for hearing the spoken word rather than reading a transcript far removed from the trial atmosphere and after the result is known. See R. v. Billings (1961) VR 127 at 141 -

"We feel that in most cases it would be dangerous to read an imputation of perjury into otherwise equivocal language, merely by reference to intonation, emphasis, gesture or demeanour, when it does not of itself clearly convey such a meaning. Energy and emphasis are great assets of the advocate, and important aids in the defence of liberty. Courts must take care not to render their proper use dangerous to the advocate's client. But we are not prepared to deny that sometimes an unequivocal imputation may, in the atmosphere of a trial, and to those who are taking part in it and have heard what has gone before, be added by such devices or accompaniments to words which on paper might be equivocal. Here the very experienced trial judge, whose careful attention to the interests of accused persons is well known, saw and heard counsel during the trial, and saw and heard him addressing the jury, and at the time formed and stated the opinion that the jury could hardly understand his words otherwise than as suggesting that the police witnesses were dishonestly lying. It was for the judge to find whether there was an imputation of the necessary kind involved in the address. There is no suggestion that he applied any wrong test in so doing, and we do not feel that we are in a position to differ from his view."

I have anxiously considered this matter having had opportunity since the hearing of the appeal to read the transcript with some care. I have reached the conclusion that the trial judge was correct in his view that the probabilities were that a reasonable jury would construe those passages in the evidence I have set out above as tantamount to evidence of good character. It cannot be the law that the words must be viewed in isolation and given literal interpretation. At the stage of the trial they were uttered the issues were well defined. The following matters were well proved.

1. The appellant had been ejected from the bar because of his boisterous unruly conduct, an ejection which was accompanied by the use of physical force.

1. Subsequently the prime mover and a trailer which had been earlier under the control of the appellant burst into the bar.

1. A man was seen to leave the driving cabin and flee the motel. The appellant arrived on foot at Uluru, well distant, much later in the day.

At the conclusion of the Crown case issues confronting the jury related to the identity of the accused as driver and his reasons, if proved to be driver, for driving into the bar. Questions such as the accused's sobriety and above all his intent, or capacity to form an intent, were of importance. His evidence-in-chief had included lengthy particulars of his work and employment as a driver over the years, designed no doubt to portray the appellant as a hard working man of stability. I say this as his sheer experience as a driver could not assist his case. In the conduct of his defence, during the Crown case, there was little if any cross examination as to the question of intoxication despite the fact (as emerged in his examination-in-chief), that if he was telling the truth, he had consumed much beer. But the fact is that the conduct of the defence did not endeavour to portray a drunken man whose capacity to reason or control his vehicle was reduced. His evidence, relating to his feelings after he had been manhandled and ejected from the bar was quite clear. He told the jury his only feeling was one of embarrassment; an acceptance that he was in the wrong. Any sense of hostility was by implication denied; again a picture of a man who realised he had been in the wrong and who accepted the consequences of his conduct in good spirit. It was against this background that the appellant gave evidence on three occasions in remarkably similar terms. It was not one "off the cuff" remark. On each occasion the answer went far further than acceptance of a suggestion or denial of a counter suggestion as to previous behaviour under stress whilst drinking.

1. "I don't consider myself capable of doing something like that". (p. 352)

2. "I still don't believe that I'd be capable of doing something like that". (p. 354)

3. "I don't feel I'd be capable of doing such a thing . . . it's completely against me you know". (p. 357)

These answers were given towards the end of his testimony, in an apparently considered fashion. The repetition of the questions was unusual; it may have been designed to emphasise to the jury that the accused was a mild type of fellow, careful of property. It seems to me that the appellant, bearing in mind what he had said earlier as to his years of experience on Territory roads, thus endeavoured to convey to the jury that he was a man without violence, a man who did not bear a grudge after a bar room altercation, a man too careful of vehicles he has driven to deliberately damage them. The concluding words "it's completely against me you know" could only be interpreted as meaning "it's out of character". His evidence in my opinion was fairly and properly classified by the learned trial judge as "evidence of his good character" especially, as I have stressed, he had referred the jury to his experiences over many years of driving on Territory roads with all the experiences they would know that to entail. It is not I consider realistic to look at each passage in isolation and to argue that his words applied only to his care of trucks - a different matter perhaps to his attitude to other persons' motor cars as displayed in the Tennant Creek incident. The words were tantamount to saying to the jury, the members of which could only apply it to his past experiences "I am not capable of driving a truck into a bar in that manner. I am not a man aggressive in drink after such an incident". I have little doubt, if cross examination had not been permitted, that the appellant's counsel would have emphasised to the jury in his address and in more specific terms, that there was absolutely no evidence to suggest the appellant was a man likely to be upset by such an incident, a man likely to apply violence when crossed. I have no doubt that the jury would also have been told by defence counsel that they should well heed the passages I have referred to, that there was just no evidence to the contrary. The appellant in giving evidence in these words was of course referring to the vital issue. There was evidence from which it was possible for the jury to infer the appellant's intention as he drove the unit towards the bar, but the onus remained on the Crown to establish intention or the requisite degree of recklessness with knowledge of the probable or possible consequences. The appellant's evidence that he was not that sort of person went straight to that issue.

In my view therefore the appellant's evidence which went to his character was in its totality not only important, but likely to be deceptive. The question of his credibility thus became vital and the jury could not truly weight this issue, and should not have been asked to do so, without the Crown being granted the right to cross examine the appellant. This cross examination went to incidents which in my view were relevant. They both occurred within six months of the alleged murders; they both took place in the course of the appellant's driving duties, they both occurred after he had been drinking and they both involved violence in or about licensed premises. They illustrated the appellant was not of the quiet reasoned character his evidence suggested and the jury were entitled to have this evidence before them to fully and fairly consider whether or not the appellant was to be believed.

The learned trial judge stressed simply and strongly the limited use the jury should and could make of this evidence. He told them it could not be used to demonstrate propensity, it went only to the credit to be paid to the appellant's evidence. He instructed them quite clearly not to act on that portion of the cross examination which suggested the threat of using a truck to enter the "pub". He emphasised there was "just no evidence" of such a threat.

It is not an easy task to rule on such applications in the course of trial. Here the learned trial judge had the opportunity over the week-end of considering the matter. In his short reasons he referred to the judgement of Barwick C.J. in Donnini v. The Queen (1973) 47 ALJR 69 at 73. The Chief Justice there emphasised the caution to be exercised in granting permission for cross examination under a similar provision of the Crimes Act (Vic.) and spoke of the limited use to which the evidence thus emerging can be put -

"However, the question of public importance which, in my opinion, is raised in this case is the existence and extent of the duty of a trial judge to assist a jury as to the use they may make of evidence of prior convictions having no other relevance in the case than the character and credibility of the accused. It is the settled policy of the law that, in general, evidence of a propensity to commit a crime or of a propensity to commit a particular type of crime is not admitted for the consideration of a jury. But evidence of bad character, particularly where it serves no other purpose in a case than the exposure of that character where the accused's credit is involved, is susceptible of use by a jury as indicating a propensity for criminal behaviour . . . It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across a deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial judge, when evidence of prior conviction is properly before the jury for the sole purpose of combatting a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused."

The learned trial judge concisely, but in my view clearly enough, so instructed the jury in the following passage at p. 541 -

"There's one other general thing I'd like to say to you, and it's this, and you may find this a little confusing, I hope not. The accused, Crabbe, was cross-examined yesterday about 2 incidents in the fairly immediate past, past fairly immediate to this occurrence that we're dealing with. One was something that happened at Three Ways. That cross-examination was perfectly proper, had it not been I wouldn't have permitted it. But that cross-examination was perfectly proper. But the facts of the accused, Crabbes (sic), admitted prior conduct at Three Ways and at Curtin Springs, can only be used by you to discredit him in the sense that it makes it harder to believe his evidence, but it must not be used to indicate to you that he has a propensity for committing crimes of the sort with which he's now charged, so as to suggest that he is more likely to have committed these crimes. And you must do your utmost to put out of your minds because Crabbe has denied it, and it's not in any sense proved, that he ever made a previous threat to drive a truck through a pub. There's just no evidence whatsoever upon which you can rely, so you must disregard that, and, as I say, you must only use what Crabbe admitted to you about the incident at Three Ways and the incident at Curtin Springs, if you feel you should, and it's a matter entirely for you, but you may only use it at all, in order to discredit his evidence, in order to make his evidence or some parts of it, less believable. You must not use what he said about those 2 incidents, in any sense, to pursuade (sic) you that he has a propensity to act in the way in which he's alleged to have acted on this night and early morning out at Ayers Rock."

Furthermore in his summing up to the jury and in dealing with general matters and evidence the learned trial judge did not again refer to the evidence which so emerged under cross examination. No undue emphasis was laid upon it and there is no reason to suspect or believe that the jury did not comprehend his directions.

I do not consider the learned trial judge erred in characterising the evidence as evidence of good character, nor do I consider he erred in allowing cross examination on the two incidents in the exercise of his discretion. It is customary to contrast or weigh the prejudicial nature of evidence and its probative value. It is essential to ensure that such cross examination is only permitted when an accused's evidence falls within the terms of the statute and beyond that when the interests of justice so require. It is often said that the discretion to allow such cross examination should be exercised only in exceptional circumstances. See the observations of Smith J. in R. v. Crawford (1965) VR 586 at 591 -

"I agree also that the application should be allowed on the other ground relied on, and in relation to that ground I would refer to the passage in the judgment of Sir Owen Dixon in Dawson v. R. (1961), 106 CLR 1, at p. 16; (1962) ALR 365, in which he states the background upon which s. 399(e) of the Crimes Act is to operate. He there said: 'It is the thesis of English law that the ingredients of the crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused.' It is because of that background that the courts have repeatedly laid down that, under s. 399(e)(ii), the allowance of cross-examination of an accused person as to prior convictions or bad character is to be confined to exceptional cases. The mere fact that some pieces of evidence are elicited, or some questions asked, by counsel for the accused which have some tendency to show the accused in a good light or to suggest good conduct on his part, does not create a prima facie case for the exercise of the discretion to allow cross-examination of the accused under the sub-section. Such cross-examination is to be allowed only when the circumstances are such as to provide a compelling need to allow it in the interests of justice. As I read the cases, their assertion of the necessity for the circumstances to be of an exceptional nature is put in the broadest way. It goes beyond the situation in which the matters founding the application for leave to cross-examine are relevant to the issues in the case. Whether those matters be relevant to the issues or not, the discretion to allow the cross-examination should be exercised only in exceptional circumstances. For these reasons I agree with the conclusions indicated by the Chief Justice." (The emphasis is mine).

It is not easy to determine whether the circumstances under which the issue falls for consideration in course of a trial can be termed "exceptional" or whether the interests of justice present a "compelling need" to allow such cross examination. It is easier perhaps to say what should or should not have been done when the evidence has been given, the cross examination complete. The trial judge was furnished with material, with proof of the incident at Curtin Springs. He had no way of assessing the appellant's answers but clearly he held a strong view that the interests of justice required him to allow the cross examination. Factually, the trial was most unusual, its gravity undoubted. We work in the courts under an adversary system. A criminal trial is seldom a search for the entire truth, the protection which surrounds an accused dictates to the contrary. On the other hand within the practices and rules of evidence under which the courts work it is necessary to maintain a balance, to appreciate that the interests of justice require consideration of community as well as of individual interests. In this trial, knowing the material in the hands of the Crown, I consider it was important after the appellant's evidence, that it should be tested in a manner which enabled the jury to more fairly determine the credit to be attached to same rather than that the jury be required to accept at face value the appellant's evidence to the effect that the conduct implicit in the Crown case was foreign to him.

I consider the cross examination was properly allowed and the limited use of the evidence thus adduced reasonably explained by the learned trial judge. His decision to admit it is not demonstrated to have been other than in the proper exercise of his discretion.

The appellant also complains concerning the learned trial judge's instruction as to the crimes of murder and manslaughter.

During the course of his summing up and on more than one occasion the jury were adequately instructed as to the ingredients of murder, including killing with intent to kill or cause grievous bodily harm and killing with reckless indifference to probable consequences. So also were the jury properly instructed on principles relating to manslaughter as they applied to the circumstances in issue. These directions were not only in satisfactoy terms but the learned trial judge instructed the jury adequately by applying the directions to the facts in issue in the case. The distinction between murder and manslaughter and the jury's right to consider manslaughter or to acquit were summarised shortly before the jury retired.

After the jury's first retirement and in the absence of the jury the Crown Prosecutor requested the learned trial judge to further instruct the jury (in connection with recklessness) as to the appellant's state of mind as to the presence of people in the bar, assuming the jury found he was the driver of the unit. There was no objection by defence counsel to this request for direction. His Honour proceeded to instruct the jury that the law in some circumstances regards reckless killing as murder, where an accused foresees no more than the possibility of consequences (here the presence of vulnerable persons) if the accused deliberately takes no steps to ascertain the true situation - the "wilful blindness" situation briefly and perhaps too simply referred to by Professor Howard (4th Edition) Criminal Law at 54. This was in my view properly raised by the Crown in view of the nature of the submissions made by the appellant's counsel (p. 509 of the transcript) to the effect that the accused in a "totally confused fashion . . . believing that there was no one in the bar . . . and that it was perhaps later than what time it was . . . just resolves to smash the bar".

It is not an easy task for a trial judge to distinguish to jurors in terms they comprehend, the elements of foresight of possible or probable consequences in the "reckless situation" or to introduce the "wilful blindness" concept to a jury already instructed on the other elements of murder and manslaughter. Words which may satisfy a court of appeal may not be of much practical use to a jury. His Honour's redirection (at p. 575) was couched in terms appropriate to the factual issues, was clearly put and was not unfavourable to the accused.

Later, following a request for redirection, the learned trial judge shortly reinstructed the jury who had sought a "description" of murder and manslaughter. His Honour declined to write it down as the jury suggested (which at that stage of the trial was understandable) but he said he would put it to them slowly. He stated as follows -

"A man commits murder if he kills somebody, having at the time that he did the action which caused the death, an intention to kill, or an intention to do really serious bodily injury; or, if when he kills someone, his state of mind is such that he knows what he's about to do is likely to kill someone, but nevertheless goes ahead and does that act with reckless indifference to the consequences; or, and this is the final alternative, if, when he does an act, he foresees the possibility that what he does might cause death, or really serious bodily injury, nevertheless takes no reasonable available step to ascertain whether or not it will." (Emphasis is mine).

The appellant's counsel argued that the use of the word "possibility" in that passage was a misdirection. Viewed in isolation this argument finds support in the judgments of McTiernan and Menzies JJ. in Pemble v. R. (1971) 45 A.L.J.R. 333; (See also Nydam v. R. (1977) V.R. 430; Hallett v. The Queen (1969) S.A.S.R. 141). Whilst I doubt whether the law can be regarded as finally settled I consider the direction was correct and appropriate to the evidence. The learned trial judge went further. In applying the law to the "case in hand" he stated, (p. 578) after dealing with the driving of the vehicle with intent to kill or cause grievous bodily harm at p. 578 -

"If you're satisfied beyond reasonable doubt that his state of mind was that he knew that it was likely that if he drove the truck into the motel bar, that he would cause death or really serious bodily injury, then he is guilty of murder. He's further guilty of murder. He's further guilty of murder if you're satisfied beyond reasonable doubt that he foresaw the possibility that there might be some people in the bar, but didn't take any step that might have been available to him to find out whether there were any people there or not, before he went ahead and drove the vehicle in."

The first sentence of that passage put the position correctly and would have corrected any misconception of the single use of the word "possibility" earlier in that passage Mr Ward also submitted that the reference in the second sentence to "the possibility that there might be some people in the bar" was erroneous and that it was the foreseeability that such people would be killed or would suffer grievous bodily harm which should have been conveyed to the jury. Bearing in mind that the accused was driving a huge vehicle towards the bar the consequences to any such people were self apparent.

The issue of "reckless murder" or "reckless indifference to consequences" raises difficulties which have been the subject of considerable discussion. It may arise in a variety of circumstances including the deliberate ignition of fire, or exploding of a bomb, acts so likely in themselves to cause death, the issue being as to foresight of the presence of vulnerable persons rather than the likelihood of death resulting, the latter being almost inevitable.

Instructions to the jury must be against the background of the evidence. Here it was not easy to appreciate the nature of the defence, but the main issue raised, in putting the Crown to proof, was a denial of intent to kill or cause grievous bodily harm to any person. In view of the nature of the vehicle and the degree of control necessary to drive it into the bar this necessitated examination by the jury as to the accused's foresight of the consequences which in this case must have related to his state of knowledge as to the probable or possible presence of persons in the bar as he drove towards it. It was not a case where the consequences to any such person or persons by reason of the intrusion of the vehicle could really be in issue.

In Pemble v. The Queen (1971) 124 C.L.R. 107, a case where the accused's assertion was that he did not know the rifle was loaded and that he intended only to frighten, Barwick C.J. stated (pp. 119-120, 121) -

"But it is of paramount significance to observe that recklessness to be relevant involves foresight of or, as it is sometimes said, advertence to, the consequences of the contemplated act and a willingness to run the risk of the likelihood, or even perhaps the possibility, of those consequences maturing into actuality. This aspect of recklessness entails an indifference to a result of which at least the likelihood is foreseen. An awareness of the consequences of the contemplated act is thus essential. This aspect of the branch of the law relating to murder is of importance in reviewing the summing up in the present case. It is the state of the accused's mind in this respect about which the jury must be satisfied to the requisite extent . . . In my opinion, the summing up was basically defective in not informing the jury and with the emphasis of which I have spoken, that actual foresight by the accused of the consequences of his acts was basic to the recklessness of mind of which they were told. I should add that it is in my opinion sufficient that the death or grievous bodily injury of the person towards or in connexion with whom the accused contemplated an act or omission should be foreseen by him as possible. I see no logical reason why in such a case as the present it should be probable, though of course, it must not be merely a remote possibility."

As I have observed this approach was not shared by all members of that court. In La Fontaine v. The Queen (1976) 136 C.L.R. Gibbs J. expressed a different view and stated (pp. 76 and 77) -

"Although it is unnecessary to decide this question in the present case, I am, with all respect, unable to accept that the foresight of a mere possibility of death or grievous bodily harm would be enough. There is a great difference between the state of mind of an accused who is prepared to risk the consequences of death or grievous bodily harm that he foresees as probable and that of an accused who does no more than take the chance that death or serious injury may ensue although it seems an unlikely consequence. The act of the former is much more worthy of blame than that of the latter. To treat knowledge of a possibility as having the same consequences as knowledge of a probability would be to adopt a stringent test which would seem to obliterate almost totally the distinction between murder and manslaughter . . . The extreme gravity of his offence lies in the fact that he fully realized the probable consequences of his act and was prepared to take the chance that they would ensue. If he did not in fact foresee that death or grievous bodily harm would probably be caused by his act, he would not be guilty of murder even though a reasonable man would have foreseen that such a result was probable; in those circumstances he might however be guilty of manslaughter." (Emphasis is mine).

This was a case of an alleged shot with intent to frighten.

The factual background here was different, the ejection of the accused from the bar, the removal of the trailer and the deliberate driving of the huge vehicle into the bar, an act of a nature likely to cause a calamity.

In these circumstances a jury, assuming it was satisfied beyond reasonable doubt that the accused intentionally drove this vehicle into the bar and if satisfied he knew or that he probably knew there would be people in the bar room should convict of murder. But upon this factual basis I consider it was appropriate that the trial judge should leave it open to the jury to convict of murder if it was satisfied beyond reasonable doubt that the accused adverted to the possibility of people in the bar room, but resiled from further consideration of such a presence (and its consequences) and nevertheless proceeded with his plan. It seems illogical, if this is proved, to argue that manslaughter is the appropriate verdict because the presence of persons in the bar was considered by the appellant as a possibility, not as a probability.

I do appreciate that a jury in examining recklessness may have difficulty in distinguishing between appreciation of "possible" and "probable" consequences, but the matter here goes beyond foresight of physical consequences, more to the intention which, on the evidence, should be reasonably imputed to the accused by proof of all circumstances. In deciding this issue it fell to the jury to consider the gathering in the bar room when the accused was ejected, the time lapse, the lighting of the room, matters such as that.

I find it difficult to comprehend for example that one who explodes a bomb in a building with foresight that it is probably inhabited is guilty of murder if death results, whereas one who adverts to that as a possibility, which he finds convenient to put out of his mind, is guilty only of manslaughter if death ensues. It is for that reason I think that the Chief Justice in the passage I have quoted from La Fontaine v. The Queen (supra) referred to the foresight of he "who does no more than take the chance although it seems an unlikely consequence". The facts in this case indicate that the death of, or the suffering of grievous bodily harm by a person or persons in the bar room, the nature of which was known to the appellant, was far from being an unlikely consequence, it was in fact virtually inevitable.

Professor Glanville Williams in Criminal Law - The General Point (2nd Edition) examines recklessness as to consequence at p. 53 -

"Recklessness as to consequence occurs when the actor does not desire the consequence, but foresees the possibility and consciously takes the risk. In inadvertent negligence, on the other hand, there is no such foresight. For many, if not most, legal purposes recklessness is classed with intention. It is like intention in that the consequence is foreseen, but the difference is that whereas in intention the consequence is desired, or is foreseen as a certainty, in recklessness it is foreseen as possible or probable but not desired . . . If the issue is whether the defendant was reckless as to a given consequence, the question is whether he foresaw the possibility of that consequence; but he will probably deny that he foresaw it, and it is impossible to look directly into his mind to know whether he is speaking the truth. Usually the question will have to be solved by examining the defendant's conduct and his opportunities of knowledge. Yet conduct is by no means so certain a guide to the issue of recklessness as it is to that of intention. When a man bends himself to secure a result, he will often leave evidence of telltale pieces of behaviour which are inexplicable except on the assumption that he intended the result. But recklessness may be a mere passing realisation, instantly dismissed, which leaves no mark upon conduct. Also, a man is capable of self-deception: he may decide that an unpleasant result is not likely because he does not want it to be likely.

On an issue of recklessness, these considerations may be put before the jury."

Later in examining recklessness as to consequence and as to circumstance, Professor Glanville Williams states at p. 149 -

"The element common to the two kinds of recklessness is the conscious taking of a risk. The presence or absence of the fact (the consequence or circumstance) is not part of the actor's purpose, but he chooses to ignore the possibility of the fact in order to pursue his purpose."

It was correct in my view, taking into account the unusual background and the use of the vehicle to leave the jury to decide in considering the verdict of murder whether they were satisfied the appellant appreciated the possibility of persons being in the bar and if so whether he pursued his course regardless of the fact, putting their presence and the consequences out of his mind.

I consider the summing up as to the law adequately instructed the jury as to the elements of murder and manslaughter which fell for consideration, effectively distinguished between the two and concluded with a description of the elements of manslaughter. In my view no error or misdirection has been established and the appeal should be dismissed.

JUDGE3

BEAUMONT, J: I have had the advantage of reading the reasons for judgment prepared by Woodward, J. and Muirhead, J. I need not repeat what they have said in relation to this appeal.

I agree with the conclusion reached by Woodward, J. and Muirhead, J. that the appellant gave evidence of his own good character for the purposes of s. 9(7) of the Evidence Act. It is true that evidence of the appellant's good character was not adduced in any orthodox fashion: the evidence was not given in direct terms. Instead, the topic was approached obliquely. Nonetheless, in my view, the appellant's character was put forward on his behalf. The Crown case was a strong one; in the case of manslaughter, perhaps overwhelming. The appellant sought to answer it by reference to two considerations. First, he claimed to have been afflicted with retrograde amnesia in respect of the critical events. Then he sought to eliminate any suggestion of malevolence by asserting that he was not the sort of person who would be capable of such a monstrosity.

In my opinion, such a defence is tantamount to relying on good character as a reason why it is unlikely that the appellant possessed the requisite mens rea to commit the crime charged (see Attwood v. The Queen (1960) 102 C.L.R. 353 at p. 359). Primarily, such evidence goes to the credibility of the accused as a witness, yet, indirectly, it may show that he is less likely to have committed the offence charged (see Halsbury's Laws of England, 4th Ed. Vol.11 at p.203). The relevant condition precedent to the availability of s. 9(7) having been satisfied, it was open to the prosecution to seek leave to cross-examine with a view to denying the appellant the benefit of a false claim to good character (see Donnini v. The Queen (1972) 128 C.L.R. 114 per Barwick, C.J. at p. 123; cf. Alister v. The Queen (1984) 58 A.L.J.R. 97 per Gibbs, C.J. at p. 102; per Wilson and Dawson, JJ. at p. 111).

I am further in agreement with Woodward, J. and Muirhead, J. that the learned judge committed no error in the exercise of his discretion in permitting the cross-examination. There is nothing I can usefully add.

I turn now to the challenge made by the appellant to the instructions given to the jury on the definition of murder by reckless conduct and, in particular, the direction as to "wilful blindness". The point is not free from authority.

In Pemble v. The Queen (1971) 124 C.L.R. 107, a question arose as to the degree of foresight necessary to constitute murder by recklessness. Barwick, C.J. (at p. 119) spoke of foresight of, or advertence to, the consequences of the contemplated act and a willingness to "run the risk of the likelihood or even perhaps the possibility", of those consequences maturing into actuality. The Chief Justice added that it was sufficient that the death or grievous bodily injury of the person towards or in connexion with whom the accused contemplated an act or omission should be foreseen by him as "possible". It need not be probable, although it must not be "merely a remote possibility". It must be something which it is seen could happen so that if nevertheless the contemplated act is done it can be said that it was done with indifference to the fact that death or grievous bodily harm might ensue.

McTiernan, J. was of the opinion (at p. 127) that the jury ought to have been told that reckless indifference was not enough, unless the accused foresaw that death or grievous bodily harm would be "a probable or likely consequence" of the behaviour of the accused. Menzies, J. was of the same view. Windeyer, J. agreed with Barwick, C.J.

The point was also discussed in La Fontaine v. The Queen (1976) 136 C.L.R. 62. In the opinion of Barwick, C.J., if, in all the circumstances, there is otherwise material to base a verdict for murder by recklessness, "a realisation of likely harm" to anyone is sufficient (at pp. 68 and 70). Gibbs, J. (as he then was) was unable to accept that foresight of a "mere possibility" of death or grievous bodily injury would be enough (at p. 76):

"There is a great difference between the state of mind of an accused who is prepared to risk the consequences of death or grievous bodily harm that he foresees as probable and that of an accused who does no more than take the chance that death or serious injury may ensue although it seems an unlikely consequence. The act of the former is much more worthy of blame than that of the latter. To treat knowledge of a possibility as having the same consequences as knowledge of a probability would be to adopt a stringent test which would seem to obliterate almost totally the distinction between murder and manslaughter."

Stephen, J., agreed with the observations of Barwick, C.J. in Pemble, cited supra. Mason, J. agreed with Gibbs, C.J. Jacobs, J. although in dissent, was also of the opinion that the relevant principle included knowledge that the act which causes death will "probably" cause the death of, or grievous bodily harm to, some person (at p. 95). His Honour said (at p. 96):

"But it is not murder to do an act which is risky to the life of another simply because the risk, the possibility of causing death or serious bodily injury of the other, is known to be probable. There must be indifference to known probable, not merely possible, consequences, and that indifference must be reckless. It is not appropriate to introduce into this use of the words 'possibility' and 'probability' connotations appropriate to the determination of questions in other fields of law such as satisfaction of a burden of proof or of adducing evidence. In the present context we are dealing with the state of a man's mind, with that state of mind which the word 'malice' connotes. To say that a man knows in his mind that a consequence of his act is probable is to say that he believes that the consequence will happen or that he expects that it will happen even though he would be prepared to concede that it is not certain that it will happen. To say that a man knows in his mind that a consequence of his act is possible though not probable is to say that he believes that the consequence will not happen or that he expects that it will not happen even though he would be prepared to concede that it may happen."

It is therefore settled law that the accused must have foreseen a substantial risk of his act causing death or grievous bodily harm: a theoretical or "mere" possibility is not enough. Yet, the learned judge referred to the accused's foreseeing "the possibility" that what he was about to do might cause death or really serious bodily injury. What meaning did this convey? His Honour did not instruct the jury that "possibility" had any special or technical meaning. It is reasonable to assume that the jury believed that the word was intended to have its popular or dictionary meaning, that is, something having a prospect, expectation or chance (Oxford English dictionary).

It is true that the direction did not in terms suggest that a "mere" or theoretical possibility would suffice as an ingredient of murder. But, even if the learned judge were not to be taken to be instructing the jury that a bare possibility would be enough, it must, I think, be accepted that there was at least some ambiguity in the use of the term "the possibility" in the context of the presence of the patrons in the bar-room. In particular, the direction did not seek to explain to the jury the need for knowledge of a substantial risk of death or serious bodily harm to be established.

It would seem that the learned judge was pressed in this connection with the supposed doctrine of "wilful blindness" as an independent head of liability. It may be that such a principle could have some operation in cases such as statutory crimes where knowledge of a wrongdoing or malice is an essential ingredient of the offence (see Glanville Williams, Criminal Law, The General Part 2nd Ed. at p. 159). But, as a general rule in the criminal law, there can be no place, at least at common law, for any doctrine of constructive notice (cf. Consul Development Pty. Limited v. D.P.C. Estates Pty. Limited (1975) 132 C.L.R. 373). This is not to say that there is no scope for a court to draw an inference in any case that the accused should be fixed with knowledge of certain matters. Where an accused deliberately shuts his eyes to the obvious, it may be possible to infer from his conduct that he has knowledge of the facts he has endeavoured to shun: the conduct of the accused may well warrant such a finding.

However, even if it is possible to elevate such a finding into a principle or rule of law, it is a theory more comfortably allied with the rules of evidence or proof than with the substantive ingredients of the crime of murder by reckless indifference at common law. Certainly, there is no authority in this country recognising "wilful blindness" as an independent branch of murder by recklessness.

The learned judge seemed to think that three forms of intent to commit murder were open on the facts: first, an intention to kill; secondly, knowledge that the act is likely to kill someone, but nevertheless the accused goes ahead with reckless indifference to the consequences; thirdly, he foresees the possibility that what he does might cause death or really serious bodily injury, but takes no reasonable available steps to ascertain whether or not it will do so, i.e. "wilful blindness". No objection could be raised to the first two directions. They accord with the weight of opinion in Pemble and La Fontaine and with The Queen v. Hallett (1969) S.A.S.R. 141; Nydam v. R. (1977) V.R. 430; and R. v. Windsor (1982) V.R. 89. However, unless the third class of case can be accommodated properly within the second category, it raises at least a serious question as to the meaning of the term "possibility" where there used.

It is conceivable that a rule of evidence or proof could have been put to the jury along the lines of the direction given, conformably with the authorities mentioned. But, with all respect to those who hold a contrary view, such a direction would only have been proper if an adequate explication of the special meaning to be attributed to the notion of "possibility" had been given. In the absence of any such explanation, the direction is at best ambiguous; at worst, it is contrary to the weight of authority which fastens upon a probability, in the sense of a substantial risk, of death or bodily harm. To speak of a possibility in that context is capable of misleading the jury. In my view, it was a misdirection. Although the facts were extraordinary, the gravity of the misdirection cannot be doubted.

I would allow the appeal and make the other orders proposed by Woodward, J.