Duff v Freijah

Re: NGAIRE HERBERT; PAMELA SAMPSON and RHODA WURRAWILYA
And: THE QUEEN (1982) 62 FLR 302
Nos. NT G34, 35 and 36 of 1981
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(2) and Sheppard(1) JJ.

CATCHWORDS

Criminal Law - convictions for murder - directions on the effect of intoxication on the formation of relevant intent - course of trial - requests by jury for re-directions - adequacy of such redirections - provocation - not a case where sufficient evidence of provocation to justify that issue being left to jury - statement of one accused to police officer that she was "paralytic drunk" - that statement some evidence of intoxicated condition of that accused.

Criminal Law - Murder - Defence of intoxication - Request by jury for redirections - Directions on effect of intoxication on formation of relevant intent - Adequacy of redirection - Provocation - Whether sufficient evidence to leave issue to jury - Self-serving statement by accused to police as to intoxicated condition - Admissible evidence.

HEADNOTE

The appellants were convicted of murder in the Supreme Court of the Northern Territory. The deceased died as a result of blows inflicted by each appellant upon his head with a length of water pipe. The defences of the appellants were based upon their intoxicated condition at the time of the incident. The appellants appealed alleging, inter alia, that the trial judge had misdirected the jury on matters connected with voluntariness, intention, intoxication and onus of proof and that the summing up and further directions of the trial judge failed adequately to put the appellants' cases.

Held: Per Toohey and Sheppard JJ., McGregor J. dissenting - (1) Read as a whole, certain of the further directions given to the jury had not sufficiently indicated that, whether or not the accused had the capacity to form an intent to kill or cause grievous bodily harm, it was still necessary for the jury to decide whether or not such an intention was formed by the accused. The jury had not been properly directed that the effect of alcohol on the appellants may have been such that they had not formed the requisite intention at all.

(2) Accordingly, the trial judge had given inadequate directions to the jury on the matters of alcohol and intent.

(3) The convictions must be set aside as one could not conclude that the appellants were not deprived of a fair chance of acquittal.

(4) Per curiam - The trial judge had not erred in failing to leave the issue of provocation to the jury as there was insufficient evidence to support such a step.

Parker v. The Queen (1964) AC 1369, applied.

R. v. Tikos (No. 1) (1963) VR 285, referred to.

(5) Per curiam - The trial judge's statement that the comments of the appellant, Wurrawilya, to the police concerning her intoxicated condition were not evidence of that condition was erroneous.

Lopes v. Taylor (1970) 44 ALJR 412; R. v. Duncan (1981) 73 Cr App R 359; Herbert v. Benson (1942) 44 SR (NSW) 382, referred to.

(6) Per Toohey and Sheppard JJ., McGregor J. dissenting - Appeals allowed, convictions for murder set aside and new trial ordered.

HEARING

Darwin, 1982, May 26-28; July 30. #DATE 30:7:1982

APPEALS.

The appellants appealed against convictions for murder in the Supreme Court of the Northern Territory.

F.H. Vincent Q.C. and L. Hartnett, for the appellant Sampson.

M. Abbott, for the appellant Herbert.

D. Hore-Lacy, for the appellant Wurrawilya.

I. Barker Q.C. and A. Cavit, for the Crown.

Cur. adv. vult.

Solicitor for the appellants: Northern Australian Aboriginal Legal Aid Service.

Solicitor for the Crown: Northern Territory Department of Law.

T.J. Ginnane

ORDER

1. The appeals be allowed.

2. The convictions of the appellants for murder be set aside.

3. There be a new trial of the appellants on the charges of murder, such new trial to take place at such time and place as the Attorney General may appoint.

JUDGE1

The appellants in this matter appeal against their convictions for murder and sentences of life imprisonment imposed as a result thereof. Each appellant was charged with the murder of one Jan Draskoveic on 29 May, 1981. The trial commenced on 13 October, 1981, and was concluded on 30 October, 1981, when the jury returned verdicts of guilty. The sentences of life imprisonment were imposed on 10 November, 1981.

Each of the appellants is an aboriginal and, by reason of s.6(1C) of the Criminal Law Consolidation Act, a life sentence was not mandatory. It was open to the judge to 'impose such penalty as, having regard to all the circumstances of the case, appears to him to be just and proper'.

It is common ground that the deceased died as the result of blows inflicted by each appellant upon his head with a length of water pipe. The attack upon him occurred at night in the grounds of the Parap Hotel, Darwin. Medical evidence called in the case for the Crown tends to establish that the deceased was struck 11 times. Each appellant admitted inflicting some of the blows. These admissions were made in statement to police officers and in statements made by the appellants to the jury at their trial. The terms of their admissions, the evidence of an eye witness to the attack and the medical evidence earlier referred to establish that the attack was a most violent and brutal one.

Each of the appellants had had a substantial quantity of liquor prior to the incident. This is established not only in statements made to police officers and in statements made by the appellants at their trial but also by other evidence. It was not a matter which was in contest either at the trial or during the proceedings before us. When sentencing the appellants the learned trial judge proceeded upon the basis that each of the appellants had had a substantial quantity of drink in the period leading up to the attack on the deceased. In that view he was plainly correct.

The appellants were represented by counsel at their trial. Their defences were based upon their intoxicated condition at the time of the assault. It was put to the jury that by reason of their drunken state the jury could not be satisfied beyond reasonable doubt:-

(1) that their actions in striking the deceased with the length of water pipe were voluntary; or

(2) that they had, at the time the blows were inflicted, an intention either to kill or cause grievous bodily harm to the deceased.

If the first submission were accepted, the second would not arise for consideration. Its acceptance would necessarily result in the acquittal of the appellants in respect of both the crimes of murder and manslaughter. The rejection of the first submission but the acceptance of the second, although leading to acquittals on the charges of murder, would very probably have led to convictions for manslaughter. In the result the jury, in deciding to find the appellants guilty of murder, must be taken to have rejected both submissions.

The original notices of appeal contained a large number of grounds. Notices of intention to add additional grounds of appeal were given before the hearing commenced. However, many of these grounds were abandoned. Shortly stated the only grounds ultimately relied upon were as follows:

(1) The learned trial judge misdirected the jury on matters connected with voluntariness, intention, intoxication and the onus of proof.

(2) His Honour's summing up and further directions given to the jury both as the result of submissions made by counsel and questions asked by the jury itself lacked balance and fairness, over emphasised the strength of the Crown's case and failed adequately to put the appellants' cases. For those reasons the summing up and further directions were so unfair to the appellants that the trial had miscarried.

(3) His Honour misdirected the jury by telling them that a statement made by the appellant Wurrawilya to the police officers that she was "paralytic drunk" was not evidence to which the jury could have regard for the purpose of determining whether that appellant was intoxicated at the relevant time.

(4) In the case of the appellant Wurrawilya his Honour erred in not leaving to the jury the question of provocation. It was submitted that in her case the jury should have been directed that the Crown was obliged to prove beyond reasonable doubt that the attack by her upon the deceased was unprovoked.

(5) The sentences of life imprisonment were in all the circumstances manifestly excessive.

It is to be observed that grounds 3 and 4 concern only the appellant Wurrawilya. The principal argument in the appeals concerned grounds 1 and 2. It is convenient to deal with them together. It is first necessary to refer to the relevant parts of the summing up and the course the trial followed between the jury's first retirement at 10.48 a.m. on 30 October, 1981, and their return with verdicts of guilty at about 9 o'clock the same evening.

We refer firstly to his Honour's summing up. His Honour gave the jury a clear direction that the onus of proof remained throughout upon the Crown and that the standard of proof was proof beyond reasonable doubt. His Honour also gave the jury clear directions as to the elements of the crime of murder. He told them quite plainly that they had to be satisfied beyond reasonable doubt that at the time each of the appellants inflicted blows upon the deceased, her acts in striking him were voluntary and that she intended either to kill him or cause him grievous bodily harm. His Honour also made it clear to the jury that, although drunkenness or intoxication was not a defence to the crime charged, it was a matter to be taken into consideration "in deciding whether the Crown has proved beyond reasonable doubt the voluntariness aspect and the intent of the accused". His Honour continued:

"As experienced people of common sense you will know that intoxication can vary greatly in degree, and it affects different people in different ways. A person may be so intoxicated that his will is warped, his disposition altered, his self control weakened, so that whilst intoxicated he does an act voluntarily and intentionally, but it is an act that in a sober state he would never do. When a person is intoxicated to that extent his condition, although it contributes to and perhaps explains his actions, has not destroyed his will or precluded the formation of the relevant intent. Indeed, intoxication to this degree might well explain how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. Intoxication might render an accused person less aware of what he is doing, or less aware of the significance or the consequences of his actions, or more likely to be swayed by others, induced, influenced by others, but nevertheless his actions are voluntary, they are his actions, and if he intends to perform them the drunkenness does avail him nothing. He may not even remember what he said or what he did, but that does not necessarily indicate either an absence of will or intent.

I repeat, it is very important that you understand this. Intoxication as such, does not provide an accused person with an excuse in law - no excuse for what he did but it is certainly a factor that you have to take into account in order to decide, as a matter of inference, whether his mind went with the act and whether the necessary intention to kill or inflict grievous bodily harm is proven.

You might think these accused seem to drink all day most days, but they still function all right, and they retain good recollection of what they have been doing."

There is no further material reference in the summing up to voluntariness, intention or intoxication. It is, accordingly, convenient to deal now with the only criticism which was made of this part of the summing up. The words upon which that criticism is based are, "but nevertheless his actions are voluntary, they are his actions, and if he intends to perform them the drunkenness does avail him nothing". It was submitted that those words had the effect of running together and confusing the effect intoxication might have upon the two quite separate concepts of voluntariness and intent. The result was that the jury might not have had clearly in their minds the need to be satisfied that the acts of striking were voluntary, that is the result of a conscious exercise of will on the part of each appellant, and further, that at the time of those acts the appellants each intended to kill or inflict grievous bodily harm upon the deceased.

In our opinion there was no misdirection. Earlier his Honour, as we have mentioned, had given the jury clear and correct directions on the matters of voluntariness and intent. His Honour had dealt with those matters quite separately and distinctly. He did not then mention the effect which intoxication might have in relation to either. When he came to deal with intoxication he did so for the purpose of explaining to the jury the place it should have in their deliberations both as regards voluntariness and as regards intent.

A fair reading of all that he said on the topic does not, in our opinion, lead to the conclusion that he confused the two concepts. Despite the use of the word "intends" in the passage complained of, he is there dealing, and only dealing, with voluntariness. He is not dealing with intent. When he says that if a person "intends to perform" the acts, he is referring to the infliction of the blows and is saying that if the person intended to perform such acts, his actions are voluntary. Drunkenness will then not avail a person claiming that the Crown has failed to establish that his will did not go with his actions.

That his Honour was not dealing with the relevant intent which the Crown had to establish is made perfectly clear in what later follows. He there drew a clear distinction between the two concepts and told the jury that intoxication was a factor which they had to take into account in order to decide whether the necessary intention to kill or inflict grevious bodily harm was proved.

His comment in the final part of the summing up which we have quoted was amply warranted upon the basis of what the appellants had said to the police officers and in their statements made at the trial. His Honour had earlier told the jury in plain terms that the facts were for them and that if they disagreed with any observation upon the facts made by him, they should disregard it.

It follows that if there were no more, we would conclude that there had been no misdirection concerning voluntariness, intent, intoxication or onus of proof.

We return to the course of the trial after the jury's first retirement at 10.48 a.m. In the absence of the jury counsel made submissions in which they asked for a number of further directions. Counsel for the appellant Herbert submitted that, although his Honour had put the prosecution case "very forcefully", his Honour had not, as we understand the submission, put the defence case adequately. There followed a lengthy discussion between his Honour and counsel. Counsel's submissions were supported by counsel for the appellant Wurrawilya. In the upshot his Honour decided that he would give further directions. These concerned the matters of intent and intoxication and some other matters as well. The material part of what he said to the jury on their return is as follows:

"Mr.Foreman, ladies and gentlemen, I have been asked by counsel - some counsel - to give you some further directions in this case, and I propose to accede to their request. I am not going to delay you very long, but I have been asked by Mr. Abbott, for the accused, Herbert, to remind you of the defence of his client, Ngaire Herbert. Shortly, it is this, that although she did the act alleged against her - I withdraw that. Although she did an act, namely of wielding the pipe and hitting the man on the head, by reason of the ingestion of alcohol, she was too drunk to form the necessary intent to kill or inflict grevious bodily harm, and therefore, so the argument runs, and so her case runs, she is not guilty of murder.

Now, I do not propose to say any more about it except just to remind you that the onus of proof is on the Crown and the standard is proof beyond reasonable doubt. Mr. Abbott's argument is that you cannot be satisfied beyond reasonable doubt that she had the necessary intent.

... ... ...

In relation to the accused, Rhoda Wurrawilya, Mr. Avery has asked me to remind you that his client too says that by reason of her ingestion of alcohol and although she did an act, the necessary intention was missing in her case also, and that the Crown has not proved beyond reasonable doubt that she had the necessary intent to kill or inflict grievous bodily harm. So really he says that she was too drunk to inform (sic) the intent too.

... ... ....

Now would you please return to your jury room to consider your verdict."

There is no reasonable ground for complaint about anything that his Honour there said. Before putting his further directions to the jury his Honour discussed with counsel the substance of what he would say. Counsel accepted his formulation of it. What he said was in accordance with that formulation. Before retiring his Honour asked counsel if there was "anything else". There was no response to his question. The time of the jury's second retirement is uncertain but was before 11.30 a.m.

In our opinion his Honour's further direction put paid to any suggestion that he did no adequately put the appellants' cases to the jury. Their cases were clearly and adequately put. It is convenient here to mention that complaint was made of language used by his Honour when putting the Crown case to the jury in his summing up. He said:

"Shortly put, the Crown case is this, and it is stark in these terms, because he would not give them his money, a drunken old cripple with 1 leg, was beaten to death in the beer garden of the Parap Hotel by means of repeated blows to the head with an iron bar and it was these 3 accused that did it".

Particular complaint was made about the words "a drunken old cripple with 1 leg". It was said that these were emotive. Perhaps they were, but factually they were correct. We do not take the view that their use is something which should lead to the conclusion that the summing up was so lacking in balance or so unfair as to warrant a new trial.

We return to the course of the trial. Some time after their second retirement the jury returned with a request that certain evidence be read to them. That was done. It is not material to refer to the detail of the evidence of which they wished to be reminded. Nothing that his Honour then said or did was relied upon for the purpose of demonstrating imbalance or unfairness in the way that he ultimately left the case to the jury. After the evidence had been read the jury retired for the third time.

Close to 5 p.m. they returned again. They had sent a note to his Honour which was in the following terms:

"Could you explain to the jury (some) in explicit terms the guidelines pertaining to alcohol in relation to intent to commit a criminal act".
The word "(some)" would seem to indicate that some only of the jury wished for further directions.

Before sending for the jury his Honour showed the note to counsel. None wished to say anything except counsel for the Crown whose submissions are not relevant for present purposes. When the jury returned his Honour read out the jury's note. He asked the foreman if that was the question and the foreman said it was. His Honour said:

"All right, well that might take me a little while, Mr. Foreman. I will not dilate upon the nature of the intent. I have told you before that the intent has to be an intent to kill, or an intent to inflict grievous bodily harm, and that the onus is on the Crown to prove that fact as being the intent of the accused - the same as any other fact in the case - it is an element of the crime of murder.

That fact cannot be proved by any method except by deduction from the known facts or the facts that you find to be established by inference or by conclusion and in drawing the inference, or coming to a conclusion you take account of all the circumstances and if you think of the circumstances in relation to any particular accused is that she was affected by alcohol, then you put that into the conundrum as to whether she was affected by alcohol to the point - or as to whether she had the necessary intention.

Now, in doing that, the observations I made to you were these. Drunkenness or intoxication is not of itself a defence to any crime. Self induced intoxication or drunkenness is never a defence to a crime. It is merely something that has to be put into the scales in determining whether you are satisfied beyond reasonable doubt about that particular element of the crime - in this case, the intent. And I said to you before and I repeat, that as experienced people you will know that intoxication varies greatly in degree and it also affects different people in different ways.

A person may be so intoxicated that his will is warped - his disposition altered - his self control weakened. So that whilst intoxicated he does an act voluntarily and intentionally, but it is an act that in a sober state he would never do. When a person is intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions has not destroyed his will, or precluded his ability to form the intention.

Indeed intoxication to that extent may well explain how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. I guess we have all done things when we have been intoxicated, or affected by liquor to some greater or lesser degree which we might think about the next day and think, 'Well, I shouldn't have done that.' But nevertheless we did it and we had the intention of doing it at the time when we did it.

Intoxication might render an accused person less aware of what he is doing - or less aware of the significance or the consequences of what he is doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence - it avails him nothing. And as I said to you earlier, you might not even remember the next day - you have all heard of alcoholic amnesia. A person may not even remember the next day what he did - how he got home - who drove the car - that sort of thing, but nevertheless the fact that he does not remember does not necessarily indicate that he did not intend to do what he did.

So I just repeat to you intoxication does not provide an accused person with an excuse in law. It is no excuse in law what the person did. It is simply something that you take into account in drawing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the iron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that these accused seemed to function very well, whether intoxicated
or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events.

Now, unless I can help you further that is the way you put alcohol in the scale and you put drunkenness in the scale. I suppose the first question for you is if you think they were - or in relation to each accused, do you think that they were so affected that they were incapable of forming an intent? Do you think they were so drunk that they did not know what they were doing? But you see, even in saying that, I think that is a too bland a description. As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk.

Now, I think that is about as much as I should say to you, Mr. Foreman, ladies and gentlemen. Would you please retire now again and consider your verdict".
The jury retired for the fourth time at 5.09 p.m. No relevant request for any alteration to what his Honour had said was made by counsel for any of the appellants.

A number of submissions were made about what his Honour then said. We prefer to leave dealing with these until we have completed the account of the course of the proceedings down to the time the jury returned with verdicts of guilty of murder.

At 6.14 p.m. the jury returned to Court at his Honour's request. He observed that the jury had retired some six hours beforehand after making allowance for their return to Court for further directions and for lunch. He told them that he was empowered to discharge them after a period of six hours if they had not reached agreement. He said that he was reluctant to discharge them and that he thought they should continue to endeavour to reach agreement. He asked the foreman whether he thought there was a prospect of agreement. The foreman told him that the jury could not reach "consensus" on at least one point but expressed the view that agreement might be reached after more deliberation. His Honour then said:
"Well, I only repeat to you that if you do not reach a verdict in the matter because you are not unanimous it is a tremendous waste of time and funds and energy, and as I say the result is probably that the whole process will have to be gone through again and for the life of me I do not know why that should be necessary. All I can say is that individually you should be listening to the views of others and not just being intractable. As I said it is not the proper exercise of the duty cast upon an individual juror to simply be impervious to the view of the majority."

It should be mentioned that towards the end of his summing up his Honour had told the jury that during their deliberations they should discuss the matter fully amongst themselves and be prepared to listen to the views of other jurors. He cautioned them against being stubborn and said that he was encouraging them to "strive to reach unanimity". He had added, "Of course, if you do not reach agreement in an unanimous way in all probability these three accused will be tried again, so we go through the whole process again".

After saying what he had in the passage earlier quoted his Honour told the jury that if they had not reached a verdict by 6.30 p.m. he would not take one before 8 p.m. He told them that arrangements would be made for them to be provided with a meal. At 6.20 p.m. the jury retired for the fifth time.

At 8.25 p.m. they returned. They had sent a statement to his Honour which was in the following terms, "The jury has reached a stalemate, as some members cannot reach consensus on the finer technicalities of alcohol warping judgment and therefore affecting the intent to cause or inflict grievous bodily harm". Prior to bringing the jury back the jury's note was shown to counsel. Counsel for the appellant Wurrawilya made some submissions but it is not material to refer to them.

When the jury returned his Honour said:
"Well, Mr. Foreman, we are making something of a marathon out of this, but nevertheless it is important that you have further instructions if that is what you want. I have received a note from you which says this:"
His Honour then read the note. He continued:
"I gather from that that you would like some more direction about that, Mr. Foreman?"
The foreman said the jury would. His Honour said:
"All right, I think it is about time you started calling upon your personal experience. That is, your knowledge of yourselves and the knowledge of people generally. It would not avail an accused person anything to say, 'My judgment was warped' - 'alcohol warped my judgment' - using the words of the document you have just given me - that is not what the criminal law is about.

Very frequently crimes are committed because a person succumbs to a temptation because of alcohol that they would not otherwise succumb to. It is not a question of whether the judgment was merely warped - as I put to you earlier - it is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt that the intention that you would otherwise infer from all the circumstances was just never formed.

Do you remember the example I put to you about the man beating another man over the head with a piece of stick and saying, 'Hand it over.' Would it really make any difference to your conclusion if you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm and in this case to kill or to inflict grievous bodily harm.

You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alcohol induce some other sort of intention? Or would alcohol merely release them from the restraints that they might otherwise impose upon themselves or might otherwise recognise as constraints as to whether they ought to wield the iron bar or not?

I do not think I can tell you anything more than that, ladies and gentlemen. It is not a question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased is enough (sic). That does not exclude the intent. The fact that a person's judgment is affected - warped, in the terms of the document set out to me is not enough. That does not remove the intent. I do not want to read to you everything that I have said to you before, but as I say if a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal area.

I do not think I can help you further - would you please retire, ladies and gentlemen".
We have placed the notation (sic) after the words "is enough", but the plain sense of what his Honour was saying requires the word "not" to be supplied between the word "is" and the word "enough".

The jury retired for the sixth time at 8.30 p.m. After they had done so his Honour asked counsel if there was anything further. No one wished to say anything.

At 8.51 p.m. the jury returned with verdicts of guilty against each appellant. The jury had thus been out for a little over 10 hours but including periods during which they were given lunch and dinner and were further directed either because of submissions by counsel or their own questions or requests.

If there has been a miscarriage of justice in this case it occurred, in our opinion, when his Honour said what he did to the jury in response to their requests for further directions at 4.57 p.m. and 8.25 p.m. The first of the requests which they made asked his Honour to explain to them "in explicit terms the guidelines pertaining to alcohol in relation to intent to commit a criminal act". Thus the request was for a further redirection on the question of how they should view the intoxicated condition of the appellants when determining whether they were satisfied that the Crown had established the requisite intent. His Honour proceeded to comply with the jury's request. In our opinion there are three possible criticisms of what his Honour has said. At the end of the fourth paragraph of what he said (p.15 hereof) his Honour seems to have left the question of intent and returned to voluntariness about which the jury were apparently not concerned. He speaks of the intoxicated condition of a person not destroying his will. We do not, however, regard that, in the context of the entirety of what his Honour said, as significant. More important is what immediately follows when he speaks of alcohol not having "precluded his ability to form the intention". Ultimately the question is not one of ability or capacity to form the requisite intent; it is a question of the actual formation of that intent. It is true to say that if a person is incapable of forming an intent, he will not have the intent. But, if on the other hand, he is found to have capacity to form the intent, it does not necessarily follow that he in fact formed it. If the question of capacity to form an intent is to be put to a jury, they must also be left with the further question of whether, notwithstanding capacity, if they find it, they are satisfied that the intent was in fact present; we refer to R. v. Garlick (1980) 70 Cr. App. Rep. 291 and R. v. Kamipeli (1975) 2 N.Z.L.R. 610. These remarks of his Honour must be read in the context of the entirety of what he said to the jury at this time. In other passages his Honour has made the correct position quite clear.

But one needs also to consider what he has said in the second last paragraph (p.16 hereof). He there returned to the question of capacity - "do you think that they were so affected that they were incapable of forming an intent". This question was followed by another - "do you think they were so drunk that they did not know what they were doing". His Honour then left the jury with his remark about what he had just said being "too bland a description". He added, "As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk".

The jury were asked to continue their deliberations. They would have returned to the jury room with his directions about capacity to form the intent and whether the appellants were so drunk that they did not know what they were doing as the last things of significance said to them. Nevertheless those directions were said to be "too bland"; and it would be wrong to take what his Honour last said separately from the entirety of his redirection given at 4.57 p.m. But it must be said that neither of his Honour's questions would have been of ultimate assistance to the jury in resolving the critical question of whether the Crown had established that at the time the blows were inflicted the appellants intended to kill or cause grievous bodily harm to the deceased. Furthermore, both questions are themselves so framed as to appear to throw the onus on to the appellants to prove positively that they did not have the capacity to form the intention or were so drunk that they did not know what they were doing. In the light of what his Honour had earlier said so clearly about the onus being always upon the Crown that may not have been what the jury took from it.

What needs to be done is to look at the entirety of what his Honour said and to weigh up the impact it may have had upon the jury. We do not find it useful to come to any separate conclusion about what his Honour said at 4.57 p.m. We prefer to rest our conclusion upon the consideration of all that occurred between 4.57 p.m. and the time when the jury returned with verdicts of guilty of murder. However, we do say, with great respect to his Honour, that his reference to capacity to form an intention and his last two questions, couched as they were in language which seemed to thrust some onus on to the appellants, may have been the source of the jury's uncertainty expressed in their next request for directions which was dealt with over three hours later at 8.25 p.m. In between times there had been his Honour's exhortation for agreement made just before the dinner break.

At the outset two things need to be said about the terms of the jury's last request. The jury's note includes the phrase "alcohol warping judgment". His Honour picked up the word "warping" and seems to have referred to it as if it were the jury's word, as in a sense it was. But the word had been used by his Honour in his original directions to the jury. He had said (p.6 hereof), "A person may be so intoxicated that his will is warped". He used the same words when he came to give the jury further directions at 4.57 p.m. (p.15 hereof). The expressions he used come in turn from a passage in the judgment of Barwick C.J. in O'Connor v. The Queen (1980) 29 A.L.R. 449 at p.454. The language used by the Chief Justice has plainly been drawn upon by his Honour for the purpose of his summing up, and, of course, there could be no complaint about his Honour having followed such a course. But we think it important to take into account the fact that the word "warped" was first used by his Honour when one comes to consider what he further said to the jury at 8.25 p.m.

In what his Honour then said he has picked up the jury's reference to the word "warping" as an indication that their only concern was about the state of the law if all they found was some warping of the appellants' judgments due to intoxication. We think there is a question as to whether this was a safe course to adopt. Because of his Honour's earlier use of the word, it may have been that it was the jury's way of directing his Honour's mind to the whole question of the effect intoxication might have upon the formation of the relevant intent.

Secondly, the jury's note opened with the words, "The jury has reached a stalemate . . . . .". That statement was made after a retirement of almost 10 hours (including breaks and interruptions) and after the foreman had informed his Honour some two hours earlier that the jury were unable to reach "consensus on at least one point". In the light of their earlier request for an explanation "in explicit terms" of "the guidelines pertaining to alcohol in relation to intent . . . ."(p.13 hereof), it seems likely that the point which was troubling the jury at 6.15 p.m. was alcohol as it affected the formation of the relevant intent. Thus for a period of at least three and a half hours the jury were in a state of disagreement about the law on this matter and, for that reason, divided about what the outcome of the case should be. The matter which was troubling them was the very matter upon which the defence of the appellants was based. The two matters we have mentioned show that the situation was one which called for extreme care. Indeed, so it seems to us, his Honour ought at 8.25 p.m. have given serious thought to discharging the jury, especially bearing in mind the period for which they had been retired. If, as was the case, the decision was made to go ahead, the jury were entitled to a clear redirection on the law which applied. It was contended in argument that no more was required than a clear statement that the mere fact that a person's judgment was warped by alcohol provided the appellants with no excuse or defence for what they had done. Taking the jury's statement literally, that may be true, although the use by the jury of the expression "finer technicalities" militates against such a narrow view. Be that as it may, it is our opinion that the whole of the circumstances of the case must be taken into account. To adopt such a confined view of the jury's request was, in our opinion quite unsafe.

His Honour's further charge to the jury should be read with the matters we have mentioned in mind. With respect to him, we do not find in what he said the careful direction which was so obviously called for. Read as a whole his further remarks are an exhortation to convict the appellants. Their climax is the last statement (p.20 hereof):
"but as I say if a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal area."

Earlier his Honour had asked rhetorically (pp.19-20 hereof):
"You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alcohol induce some other sort of intention?"
The last question is quite inapt. The relevant effect which alcohol may have had, may have been such that the appellants may not have formed the requisite intention at all. If that were the jury's view, they were bound, by reason of the doubt that in that event they must have had, to acquit the appellants of murder.

There are other matters to which reference could be made to show that his Honour's further directions were in all the circumstances inadequate and inappropriate for what was then required. We do not go to the detail of them because it is the impact of what the jury were told taken as a whole which ought to be considered.

We do, however, mention one passage which was the subject of severe criticism in the submissions of senior counsel for the appellant Sampson. We mention the matter because we do not accept the criticism which was made. The passage is that in which his Honour said (p.19 hereof):
"it is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt that the intention that you would otherwise infer from all the circumstances was just never formed."

We do not think that the criticism made by counsel is warranted because all that his Honour is saying is that the intention which might well be inferred in a case where there was no evidence of intoxication, might not be inferred where there was evidence of it.

However, for the reasons earlier given we are satisfied that the matter was left to the jury, particularly by reason of what his Honour finally said to them at 8.25 p.m., in a way which exhorted them to convict and did not give them that assistance and balance which was so plainly required. No more than 20 minutes later the jury had reached their decisions to convict each of the appellants. We are of opinion that not only the second, but also the first, ground of appeal should be upheld. Although his Honour's earlier directions about intent and the effect of alcohol upon the formation thereof contained no error, the same cannot be said in relation to his Honour's directions given at 4.57 p.m. and 8.25 p.m. Our criticisms of what he said at 4.57 p.m. have already been stated (pp.23-24). What he said at 8.25 p.m. exacerbated the position. Once one takes the view, as we have done, that the jury were entitled, at 8.25 p.m., to be fully directed in relation to alcohol and intent, it must follow that what his Honour then said was in all the circumstances inadequate. If, as we think should be done, what his Honour said at 4.57 p.m. is read together with what he said at 8.25 p.m., one is reinforced in the conclusion that the directions given the jury in response to their requests were unsatisfactory.

Foreseeing that this might be the view which the Court would adopt, counsel for the respondent nevertheless submitted that we ought not to be satisfied that there had been any miscarriage of justice. He acknowledged that the principle which should be applied was that a new trial should be granted if the appellants may, by what his Honour has done, have lost a chance which was fairly open to them of being acquitted; see Mraz v. The Queen (1955) 93 C.L.R. 493, per Fullagar J. at p.515; Driscoll v. The Queen (1977) 137 C.L.R. 517, per Barwick C.J. at p.524; and Duff v. The Queen (1979) 28 A.L.R. 663 at p.674. Counsel for the respondent supported his submission by an extensive review of the evidence in the case. He demonstrated, in our opinion, that the Crown case was a very strong one. In relation to the issue of intention he referred us to statements made by the appellants to the police officers who investigated the crime, to the records of interview of two of the appellants and to the statements made by the appellants at the trial. These all tend to indicate, as the learned trial judge emphasised repeatedly to the jury, that the appellants each had a clear recollection of the events of the night in question and of what their own parts in those events were.

We have taken all these matters into account. But there is substantial evidence and other material which, if accepted by the jury, would have established intoxication of the appellants. Their defence was based on that matter; and it was a matter about which the jury, having been in the earlier stages of the summing up properly directed, were troubled. In the light of what later happened we do not think that one could safely reach the conclusion that the appellants were not deprived of a fair chance of acquittal. The convictions cannot, therefore, in our opinion stand.

Counsel for the appellants Herbert and Wurrawilya submitted that in that event we should substitute convictions of manslaughter in respect of each appellant. Senior counsel for the appellant Sampson did not join in that submission, although he did not oppose that course being taken. Counsel for the respondent strongly opposed substituting convictions of manslaughter for the convictions of murder. He submitted that if we were of opinion that the convictions of murder ought not to stand, there should be a new trial. His submission was based on the strength of the Crown case, particularly upon the various statements made by the appellants both to police officers and at their trial which do suggest that the appellants each had a clear recollection of the events leading up to the killing and a clear awareness at that time of what they were doing. From this evidence it was well open to a jury to conclude that the Crown had proved beyond reasonable doubt that they intended to kill or inflict grievous bodily harm upon the deceased.

Having given the matter due consideration, we have reached the conclusion that the submission made on behalf of the Crown should be accepted and that there should be a new trial.

Our conclusion in this regard makes it unnecessary to deal with the remaining grounds of appeal. However, we are of the clear opinion that his Honour did not err when he failed to leave the issue of provocation to the jury. There is no special statutory provision in force in the Northern Territory so that the common law applies. It is stated conveniently in Parker v. The Queen (1964) A.C. 1369 at p.1392. Before the issue is left to a jury the case must contain some reasonable evidence of provocation, that is some evidence fit for the consideration of the jury. In our opinion this was not such a case.

We are of opinion that his Honour's statement that what the appellant Wurrawilya said to the police concerning her intoxicated condition not being any evidence of that condition was erroneous. It runs counter, in our respectful opinion, to what was said by Gibbs J. (as he was) in Lopes v. Taylor (1970) 44 A.L.J.R. 412 at pp.421-422, and to the decision of the Court of Criminal Appeal in England in Reg. v. Duncan (1981) 73 Cr. App. R. 359. We refer also to Herbert v. Benson (1942) 44 S.R. (N.S.W.) 382 per Jordan C.J. at p.383. We would prefer to leave open the question of whether, if this had been the only misdirection, the trial would have miscarried.

For the reasons we have given the appeal should be allowed, the convictions for murder set aside and a new trial ordered to take place at such time and place as the Attorney General may appoint.

JUDGE2

These are appeals by NGAIRE HERBERT, PAMELA SAMPSON and RHODA WURRAWILYA (appellants) against their conviction for murder in the Supreme Court of the Northern Territory on 30 October 1981 and sentences of life imprisonment on 10 November 1981.

The Crown case was that on 29 May 1981 the appellants were drinking at the Parap Hotel in Darwin with Jan Draskoveic. They decided to rob him. Each of them struck him about the head several times with an iron bar causing his death within a short time. The Crown also relied upon the actions of the appellants as having been a joint enterprise which they carried out with a common purpose. The evidence against the appellants consisted of an eye witness, admissions made verbally and, in the case of the appellant, Sampson and Warrawilya, in signed Records of Interview. The appellants in admissions made verbally and Records of Interview, claimed they were drunk at the time they struck Jan Draskoveic. The eye witness' account supported this. It is not disputed that all appellants were affected by intoxicating liquor at all relevant times.

Each of the appellants made a statement from the dock in which they gave account of events at the Hotel on the relevant night, that, in effect, they were drunk, and though the expression varied, that they hit the deceased with an iron pipe, that they did not mean to hurt him. The appellants Herbert and Sampson said that the appellant Wurrawilya made them do it, i.e. hit the deceased; but this was denied by the appellant Wurrawilya. The last named appellant also gave a version of events whereby she referred to the deceased having called her a "black bitch" and a "slut" and swearing at her whereafter she got wild and got the pipe and hit the deceased.

The appellants, without objection, were given leave to rely on grounds of appeal other than or in addition to those originally taken. These have been set out in what amount to amended Notices of Appeal and are before us. Grounds as filed were not all supported in argument. For ease of reference I set out those grounds on which Counsel relied -
Appellant Herbert

". . . . the appellant Appeals:-

(a) Against the conviction.

(b) Against the Sentence of the Honourable Mr. Justice Gallop made in the Supreme Court of the Northern Territory of Australia on the 10th day of November 1981.

. . . .

4. That the learned Trial Judge erred in his summing up to the jury in that he did not adequately put to the jury the defence of the appellant and that although he did give further directions to the jury on the question of intoxication of alcohol, after the conclusion of his summing up, such direction did not adequately put before the jury the appellant's defence.

5. That the Learned Trial Judge erred in telling the jury in the course of his summing up that when a person does an involuntary act they usually do not have any recollection of the act and that the Learned Trial Judge erred in the directions he gave to the jury on the subject of involuntary act.

6. That the Learned Trial Judge erred in his summing up and he failed to direct the jury adequately as to the necessity for a finding that at the time of the commission of the alleged offence of murder, for the jury to find the appellant guilty of such offence they would have had to have found beyond reasonable doubt that she had the necessary special intent.

. . . .
8. That the Learned Trial Judge erred in his further directions to the jury

(a) upon the jury's return at 4.57 p.m. and

(b) upon their return at 8.25 p.m. insofar as the directions given by Learned Trial Judge to the jury in relation to the necessary intent were misleading and/or incorrect and, in particular

(1) The Learned Trial Judge stating at Page 1368 of the Transcript "A person may be so intoxicated that his will is warped - his disposition altered - his self control weakened. So that whilst intoxicated he does an act voluntarily and intentionally, but it is an act that in a sober state he would never do. When a person is intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions, has not destroyed his will, or precluded his ability to form the intention", but failed to put the proposition or leave to the jury the question that intoxication "to that extent" may proclude his ability to form the intention. The Learned Trial Judge erred in directing the jury that intoxication to that extent as not destroying his will to preclude his ability to form the intention.

(ii) The Learned Trial Judge directed the jury immediately thereafter "Indeed intoxication to that extent may well explain or not how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. I guess we have all done things when we have been intoxicated, or affected by liquor to some greater or lesser degree which we might think about the next day and think, "Well, I shouldn't have done that." But nevertheless we did it and we had the intention of doing it at the time when we did it.

Intoxication might render an accused person less aware of what he is doing - or less aware of the significance or the consequences of what he is doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence - it avails him nothing."

In the course of that direction the Learned Trial Judge never put to the jury all the proper alternatives and, in particular, never put to the jury that intoxication may mean that the appellant was incapable of forming the requisite intent. The Learned Trial Judge erred in inferentially telling the jury in both passages that a person intoxicated would have the necessary intent and failed to put the jury or leave to them the question of whether or not a particular person did have the necessary intent, taking into account the degree of intoxication.

(iii) The Learned Trial Judge directed the jury "So I just repeat to you intoxication does not provide an accused person with an excuse in Law." It is no excuse in law what the person did. It is simply something that you take into account in drawing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the iron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that the accused seemed to function very well, whether intoxicated or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events." The Learned Trial Judge erred in telling the jury that intoxication is "no excuse in law what the person did" and he erred in giving the jury these directions and in failing to put the defence case as part of these directions.

(iv) The Learned Trial Judge directed the jury "Now, unless I can help you further that is the way you put alcohol in the scale and you put drunkenness in the scale. I suppose the first question for you is if you think they were - or in relation to each accused, do you think that they were so far affected that they were incapable of forming an intent? Do you think they were so drunk and did not know what they were doing? But you see, even in saying that, I think that that is a too bland a description. As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk."

The Learned Trial Judge erred again in failing to put the converse of his propositions, namely that some people when "pretty drunk" do all sorts of things" without "the necessary intention" and thereby failed to put the defence case.

(v) The Learned Trial Judge after 8.25 p.m. upon the jury's return, directed the jury "I think it is about time you started calling upon your personal experience. That is, your acknowledge of yourselves and the knowledge of people generally. It would not avail an accused person anything to say, "My judgment was warped" - "alcohol warped my judgment" - using the words of the document you have just given me - that is not what the criminal law is about. Very frequently crimes are committed because a person succumbs to a temptation because of alcohol that they would not otherwise succumb to. It is not a question of whether the judgment was merely warped - as I put to you earlier - it is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt that the intention that you would otherwise infer from all the circumstances was just never formed." The Learned Trial Judge misdirected the jury in these two directions in failing to tell the jury that the question for them is whether or not at the time the blow or blows were struck the intention to kill or cause grievous bodily harm was proved beyond reasonable doubt to be in existence in the mind of the accused.

(vi) The Learned Trial Judge directed the jury "Do you remember the example I put to you about the man beating another man over the head with a piece of stick and saying, "Hand it over". Would it really make any difference to your conclusion if you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm in this case to kill or to inflict grievous bodily harm.

You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoviec on the head what other intention could they have had but to kill or inflict grievous bodily harm?"

The Learned Trial Judge erred in this direction in that he, in effect, took away from the jury the question of whether or not the relevant intent was present, by telling them (inter alia) "What other intention could they have had but to kill or inflict grievous bodily harm?"

Again the learned Trial Judge did not put the defence case, but reiterated, in effect, what was the prosecution case.

(vii) The Learned Trial Judge directed the jury immediately following the passage in (vi) above, and said "Would alcohol induce some other sort of intention? Or would alcohol merely release them from the restraints that they might otherwise, impose upon themselves or might otherwise recognise as constraints as to whether they ought to wield the iron bar or not? I do not think I can tell you anything more than that, ladies and gentleman.

It is not a question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased is enough. That does not exclude the intent. The fact that a person's judgment is affected - warped, in the terms of the document set out to me is not enough. That does not remove the intent."

He erred in failing to direct the jury that it was not a question of whether alcohol would induce some other sort of intention but the question for them was whether alcohol ingestion resulted in the failure to form the necessary intent at the relevant time. He erred in failing to tell the jury that if the jury found that a person's judgment was effected or warped that may mean that the necessary intent did not exist. The Learned Trial Judge erred in directing them that such a finding "does not remove the intent".

(viii) The Learned Trial Judge finally directed the jury "I do not want to read to you everything that I have said to you before, but as I say if a person can say, "I was drunk and therefore I didn't have the intent", well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal law area."

9. The Learned Trial Judge erred in that the whole tenor of his directions to the jury after they had initially retired to consider their verdicts was a direction to convict and not a direction which included any adequate or proper reference to the defence case.

10. The directions as a whole, both prior to the jury initially retiring and after, dealt with the defence case in a slighting and incomplete manner and failed to put into proper perspective the submissions of defence counsel.

11. That the Learned Trial Judge erred in his direction at Page 1343 in his direction as to manslaughter.

12. That the Learned Trial Judge's actions in bringing the jury back at 6.14 p.m. and what he said to them on that occasion, coupled with his remarks to the jury at 8.25 p.m. when the jury returned and, in particular, his final directions to the jury "I do not want to read to you everything that I have said to you before, but as I say if a person can say, "I was drunk and therefore I didn't have the intent", well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal area", amount to undue pressure on the jury as a whole and particularly when the jury were deadlocked or had reached a stalement on the question of alcohol and intent.

13. The sentence imposed was in all the circumstances manifestly excessive.

Appellant Sampson

The grounds of appeal relied upon in respect of this appeal are those which have been set out already in relation to the appellant Herbert, Nos. 4, 5, 6, 8, 9, 10, 11, 12 and 13.

Appellant Wurrawilya

Grounds of appeal of this appellant are -
". . .

3. That the learned Trial Judge erred in his summing up to the jury in that he did not adequately put to the jury the defence of the appellant and that although he did give a further direction to the jury on the question of intoxication by alcohol, after the conclusion of his summing up, such direction did not adequately put before the jury the appellant's defence.
4. That the Learned Trial Judge erred in telling the jury in the course of his summing up that when a person does an involuntary act, they usually do not have any recollection of the act and that the Learned Trial Judge erred in the directions he gave to the jury on the subject of involuntary act.

5. That the Learned Trial Judge erred in his summing up and he failed to direct the jury adequately as to the necessity for a finding that at the time of the commission of the alleged offence of murder, for the jury to find the appellant guilty of such offence, they would have had to have found beyond reasonable doubt that she had the necessary special intent.

6. That the Learned Trial Judge erred in his directions to the jury in answer to the question asked by the jury at page 1374 of the transcript on the question of alcohol and the intention to cause grievous bodily harm.

7. That the Learned Trial Judge misdirected the jury on the question of voluntariness and intent.

8. The summing up of the Learned Trial Judge was unbalanced and unfair to the appellant.

9. That the Learned Trial Judge erred in that he failed to instruct the jury on the elements of the defence of provocation and the law relating thereto.

10. The sentence imposed by the Learned Trial Judge was in all the circumstances manifestly excessive."

In addition, on behalf of this appellant, it is argued that the Learned Trial Judge was in error in saying to the jury -
"Now, just because Rhoda said to the police that she was paralytic drunk, that does not prove as a fact that she was paralytic drunk. It only proves as a fact, that she said to the police that she was paralytic drunk. You will have to make up your mind if she was drunk or not from other evidence in the case. It may be that you will accept that she was paralytic drunk, but that is for you to make a judgment about it. The mere fact that she told the police does not prove as a fact."
When considering this last question, it may be borne in mind that the other two appellants made a similar claim as to their condition.

Most of these grounds are related to what are said to be deficiencies in the summing up of the learned trial Judge related to his failure adequately or clearly to direct the jury as to the onus on the Crown to prove the appellants' actions were voluntary (in the sense that they performed, willed acts) with an intent to kill or inflict bodily harm; and, in particular, on the failure of the learned trial Judge, when asked to redirect the jury and in answering questions asked by the jury as to intoxication and that intent, to remind the jury in appropriate terms as to the onus on the Crown when there was evidence as to the appellants and each of them being affected by intoxicating liquor and the possible relationship between a state of intoxication and intent.

Accordingly, it is convenient to refer to the summing up and, in particular, to that portion of it dealing with onus of proof, voluntariness and intent. I note that included in the main summing up (i.e. as the jury were charged before being sent out or later recalled for further directions or to hear evidence they wanted read or to be given further instruction they sought) this appears -
"I turn to the first question of law and you have already heard a good deal about it, but as I say, the law requires me to put these things to you. It is something that you probably know very well. It is the question of the burden of proof and the standard of proof.

The crown brings this charge against these 3 accused. The crown must prove it. The standard of proof is proof beyond reasonable doubt. The prosecution will succeed in the task of proving its case beyond reasonable doubt, if and only if, having considered all the evidence, each one of you is satisfied beyond reasonable doubt that the accused or one or more of them is guilty of the crime of murder or the crime of manslaughter.

It is not the law that any accused person has to satisfy you that she is innocent. In this case, the onus is on the crown and it remains with the crown throughout."
And later -
". . . . Beyond reasonable doubt means what it says, and the onus is on the Crown and it extends to every element in the Crown case. I will have something more to say to you in a moment about what the elements are. . . . "
It may be remarked that the state of mind as to voluntariness could be regarded as an "element". See Bratty v. Attorney General for Northern Ireland (1963) A.C. 386 at p.407.

His Honour directed the jury on what is a "willed act" including in the following terms -
"The accused is not guilty of a crime if the act was not done in the exercise of his will to act. You must try and grasp the concept of what a voluntary act is. It is an act done in the conscious exercise of will. . . .As long as it is a willed act, it is a voluntary act."
His Honour elaborated on the concept of "willed act". As a matter of definition, in my view, the direction as to the meaning of what was a voluntary act was adequate. And he discussed it as part of or immediately following his treatment of the definition of murder in such a fashion that the jury, in my view, would have understood that the proof of a voluntary or willed act was like one of the elements of the crime and to be proved beyond reasonable doubt by the Crown. The willed act(s) was the striking of the deceased with a piece of iron piping. His Honour's description or definition of it was in accord with what was said by Barwick C.J. in Ryan v. The Queen (1969-70) 121 C.L.R. 205 (Ryan) at pp.214-217. Passages therefrom were quoted by Gibbs J. (as he then was) in R v. O'Connor 29 ALR 449 (O'Connor) at p. 468. That Ryan was not a case where the effect of intoxicating liquor was under consideration does not seem to me to matter. When his Honour dealt with the question of drunkenness or intoxication, he said -
"It is a matter to be taken into consideration in deciding whether the Crown has proved beyond reasonable doubt the voluntariness aspect and the intent of the accused."
His Honour enumerated, correctly in my view, the "elements" of the crime of murder. Later when he came to that area of his charge to the jury on drunkenness, he said, inter alia -
". . . .it is certainly a factor you have to take into account in order to decide as a matter of inference whether his mind went with the act and whether the necessary intention to kill or inflict grievous bodily harm is proven."
The Jury retired at 10.48 a.m. on 30 October 1981.

In my opinion, as it was given, the main summing up was adequate to convey to the jury the respective position of the Crown in relation to both the burden and the standard of proof in respect of the voluntary act(s), intent and the elements of the crime of murder.

Before this Court, the arguments for the appellants have referred again to and repeated criticisms of the learned trial Judge's main summing up and directions given in respect thereto including when the jury asked questions. I shall refer to these criticisms and redirections in more detail. Upon the jury retiring Counsel for the appellant Herbert asked his Honour to redirect the jury -
". . . .as to what my cleitns' defence was. . . . . .that although she did an act by reason of the ingestion of alcohol, she did not have the necessary requisite and special intent necessary to constitute the crime of murder."

In this passage Counsel states a "defence" in positive form omitting in the formulation reference to onus; and this mode of expression was also chosen in ground 8(b)(vii) above.

In this part of Counsel's submission, he also argued that when his Honour had directed the jury as to the circumstances in which they might find an accused person guilty of manslaughter that he had directed them in terms of a reversal of the onus of proof; that it was not a question, Counsel submitted, as the learned Judge had directed (sic) "if you are satisfied there was no intent to kill or cause grievous bodily harm then you consider manslaughter", but rather if they were not satisfied beyond reasonable doubt that the Crown had proved there was an intent to kill or cause grievous bodily harm, then they should consider manslaughter.

In my view the directions given by the learned trial Judge in the area of the summing up referred to were not, on that point, expressed appropriately if they were repeating a direction to onus; but the learned trial Judge had already dealt adequately with the onus and standard of proof. In his remarks, of which complaint was offered, he was not purporting to deal at all with the onus of proof. They were directed as to a possible transfer of attention or consideration of murder to manslaughter and to elements of the offence of manslaughter. His Honour was giving direction as to what might be different compartments of the jury's task, i.e. to consider first the question of murder and, secondly, that of manslaughter, to whose elements he had referred. I am of the opinion that the jury would not have been caused to misunderstand or to lose sight of the correct application of the oft stated (by then repeated or referred to some seven times) onus of proof formula. However, his Honour did ask Counsel for the appellants Sampson and Wurrawilya if they wanted him to put anything further to the jury. Counsel for Sampson answered in the negative. Counsel for Wurrawilya drew his Honour's attention to what he suggested was a factual error which is not in issue in this appeal, and he sought the same direction as to the consumption of alcohol as that requested for appellant Herbert. He also asked that evidence by a witness McKay bearing on intoxication be drawn to the attention of the jury. He requested that the concluding part of his client's statement from the Dock be read to the jury. I shall refer to His Honour's further instruction to the jury.

FIRST RE-DIRECTION

His Honour recalled the jury, put to them the so called "defence" as requested by the appellant Herbert's Counsel and in terms he had suggested. He added a direction as to the onus in unexceptional terms and a direction on manslaughter thus -
". . . .I am not going to delay you very long, but I have been asked by Mr. Abbott, for the accused, Herbert, to remind you of the defence of his client, Ngaire Herbert. Shortly, it is this, that although she did the act alleged against her - I withdraw that. Although she did an act, namely of wielding the pipe and hitting the man on the head, by reason of the ingestion of alcohol, she was too drunk to form the necessary intent to kill or inflict grievous bodily harm, and therefore, so the argument runs, and so her case runs, she is not guilty of murder.

Now, I do not propose to say any more about it except just to remind you that the onus of proof is on the Crown and the standard is proof beyond reasonable doubt. Mr. Abbott's argument is that you cannot be satisfied beyond reasonable doubt that she had the necessary intent.

In relation to manslaughter, I told you that you only get to consider that if you are not satisfied beyond reasonable doubt that any particular accused had the intention to kill or inflict grievous bodily harm. I said to you that when a person kills another by the deliberate commission of an unlawful and dangerous act, without that intention to kill or inflict grievous bodily harm, then if a reasonable man in that situation would have realised that he was exposing the deceased to an appreciable risk of really serious injury, that is manslaughter. So you understand: no intent to kill or inflict grievous bodily harm, but nevertheless a deliberate commission of an unlawful and dangerous act.

In deciding whether a reasonable man in that situation would have realised the danger that he was creating, that means a reasonable man in the situation like the accused was in; that is, a person who had ingested so much alcohol; if you find that is what the accused had done."
The direction to the jury on manslaughter may have been in terms which resulted in a more favourable rendition of manslaughter elements than was warranted (cf. D.P.P. v. Newbury (1977) A.C. 500). This direction was given in respect of "any particular accused". He repeated, as requested, the direction as to intoxication and onus in respect of the appellant Wurrawilya. He read the section of this appellant's statement as requested.

Having given these further directions, he sent the jury out once more. This was some time before 11.30 a.m. He asked Counsel if there was "anything else" but no correction or further instruction to the jury was sought.

SECOND RE-DIRECTION

The jury requested certain evidence to be read. This was done. I have headed this as a "re-direction" for convenience; though, in fact, no direction was sought or given.

THIRD RE-DIRECTION

Later the jury asked a question in a note, repeated in the transcript, as asking the trial Judge to -
". . . . . explain to the jury (some) in explicit terms the guidelines pertaining to alcohol in relation to intent to commit a criminal act . . . . "
It is worth noting that what the jury sought was to "explain" the guidelines pertaining to alcohol and "in relation to intent". It might be inferred that the jury needed no further discussion on voluntariness. Upon invitation given, no Counsel made further submissions except the Crown Prosecutor. A request he made was refused. The jury were recalled at 4.57 p.m.

His Honour said -
". . . Mr. Foreman. I will not dilate upon the nature of the intent. I have told you before that the intent has to be an intent to kill, or an intent to inflict grievous bodily harm, and that the onus is on the Crown to prove that fact as being the intent of the accused - the same as any other fact in the case - it is an element of the crime of murder.

That fact cannot be proved by any method except by deduction from the known facts or the facts that you find to be established by inference or by conclusion and in drawing the inference, or coming to a conclusion you take account of all the circumstances and if you think of the circumstances in relation to any particular accused is that she was affected by alcohol, then you put that into the conundrum as to whether she was affected by alcohol to the point - or as to whether she had the necessary intention.

Now, in doing that, the observations I made to you were these. Drunkenness or intoxication is not of itself a defence to any crime. Self induced intoxication or drunkenness is never a defence to a crime. It is merely something that has to be put into the scales in determing whether you are satisfied beyond reasonable doubt about that particular element of the crime - in this case, the intent. And I said to you before and I repeat, that as experienced people you will know that intoxication varies greatly in degree and it also affects different people in different ways."
The jury's question did not in terms seek further or repetition of directions. I note his Honour referred again to the onus of proof. He continued, pointing out, in effect, that intoxication was not itself a defence but might render a person less aware of what he was doing. He said -
"A person may be so intoxicated that his will is warped - his disposition altered - his self control weakened. So that whilst intoxicated he does an act voluntarily and intentionally, but it is an act that in a sober state he would never do. When a person is intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions has not destroyed his will, or precluded his ability to form the intention.

Indeed intoxication to that extent may well explain how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. I guess we have all done things when we have been intoxicated, or affected by liquor to some greater or lesser degree which we might think about the next day and think, 'Well, I shouldn't have done that.' But nevertheless we did it and we had the intention of doing it at the time when we did it.

Intoxication might render an accused person less aware of what he is doing - or less aware of the significance or the consequences of what he is doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence - it avails him nothing. And as I said to you earlier, you might not even remember the next day - you have all heard of alcoholic amnesia. A person may not even remember the next day what he did - how he got home - who drove the car - that sort of thing, but nevertheless the fact that he does not remember does not necessarily indicate that he did not intend to do what he did.

So I just repeat to you intoxication does not provide an accused person with an excuse in law. It is no excuse in law what the person did. It is simply something that you take into account in drawing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the iron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that these accused seemed to function very well, whether intoxicated or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events.

Now, unless I can help you further that is the way you put alcohol in the scale and you put drunkenness in the scale. I suppose the first question for you is if you think they were - or in relation to each accused, do you think that they were so affected that they were incapable of forming an intent? Do you think they were so drunk that they did not know what they were doing? But you see, even in saying that, I think that is a too bland a description. As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk."

His question to them in the last paragraph, were it in isolation and intended to be in the words of direction, would be open to the criticism that it referred to the capability of forming (cf. Grounds of appeal 8(b)(i) above) rather than the fact of having formed the requisite intent; but the opening words of this redirection had specifically repeated the direction as to intent as it should be considered with the onus of proof; the question asked of him invited this form of discussion which would not, I consider, have derogated from the onus of proof direction. His Honour, having earlier stated and repeated the onus (though not asked to do so) correctly, was replying to a question coupling alcohol and intention and not directed to voluntariness. He may well have taken the view that to add any further reference to voluntariness would have clouded the discussion on the subject of enquiry by some members of the jury. It is understandable that when, after the jury retired again (at 5.09 p.m.) and Counsel were asked whether anyone wanted him to say anything further to the jury, no defence Counsel sought further direction except the then Counsel for appellant Wurrawilya. This request was refused. The subject of that request has not been discussed in this appeal. I note that it contained no reference to voluntariness or onus.

FOURTH RE-DIRECTION

His Honour recalled the jury AT 6.14 p.m. i.e. after they had been in retirement for six hours and urged them to try to reach agreement. At 6.20 p.m. they retired again.

FIFTH RE-DIRECTION

Later a message was sent by the jury to which I refer below. Before the jury were recalled, Counsel were asked if they wished to say anything. Counsel for appellant Herbert stated that he did have "small matters". He referred his Honour to what Barwick C.J. said in O'Connor (supra) at p.466 line 46 et seq. and sought a direction in accordance with it. His Honour refused this request. In my view the passage cited did not offer any version of the onus or intent in a case where alcohol may be a factor not already covered by earlier directions. His Honour, I consider, was justified in refusing it.

The Jury were brought back at 8.25 p.m. The message appears thus in the transcript -
"The jury has reached a stalemate, as some members cannot reach consensus on the finer technicalities of alcohol warping judgement and therefore affecting the intent to cause or inflict grievous bodily harm."
His Honour asked -
"I gather from that that you would like some more direction about that, Mr. Foreman?"
The Foreman answered in the affirmative.

The learned trial Judge's instruction then given to the jury on this enquiry included -
"All right. I think it is about time you started calling upon your personal experience. That is, your knowledge of yourselves and the knowledge of people generally. It would not avail an accused person anything to say, 'My judgment was warped' - alcohol warped my judgment' - using the words of the document you have just given me - that is not what the criminal law is about.

Very frequently crimes are committed because a person succumbs to a temptation because of alcohol that they would not otherwise succumb to. It is not a question of whether the judgment was merely warped - as I put to you earlier - it is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt that the intention that you would otherwise infer from all the circumstances was just never formed.

Do you remember the example I put to you about the man beating another man over the head with a piece of stick and saying, 'Hand it over.' Would it really make any difference to your conclusion if you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm and in this case to kill or to inflict grievous bodily harm.

You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alcohol induce some other sort of intention? Or would alcohol merely release them from the restraints that they might otherwise impose upon themselves or might otherwise recognise as constraints as to whether they ought to wield the iron bar or not?

I do not think I can tell you anything more than that, ladies and gentlement. It is not a question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased is enough. That does not exclude the intent. The fact that a person's judgment is affected - warped, in the terms of the document set out to me is not enough. That does not remove the intent. I do not want to read to you everything that I have said to you before, but as I say if a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal area.

I do not think I can help you further - would you please retire, ladies and gentlemen".
His remarks included statements which might be thought to have been adverse to the appellants. Yet the case against them was very strong. His Honour's summing up had been most moderate, involving e.g. but little detailed reference to most damaging admissions in interrogations and Records of Interview. His question to the Jury "Anything further gentlemen?" was not made the occasion for any further request for directions by Counsel.

The main submissions to us have been made by senior counsel for the appellant Sampson who did not hear the addresses of counsel at the trial or the emphasis by the trial Judge in the summing up. These arguments have not persuaded me that the trial Judge's summing up and directions on onus, voluntariness, intent or the circumstances in which manslaughter was available was at fault in respect of any of the appellants. Counsel's argument for the appellant Sampson was adopted by Counsel for the appellants Herbert and Wurrawilya.

In my view, the words of the Full Court of the Supreme Court of Victoria in R. v. Kerr (No. 2) (1951) V.L.R. 239 at p.247 are in point -
"There are many reasons why an appellate tribunal should be slow to interfere with the result of a trial upon the ground that the Judge's charge is not as full and impartial as might be desired. For one thing, he has seen the course of the trial, and, in particular, has heard the addresses of counsel, and his own comments must be read in the light of what has preceded them. Further, he is entitled to comment upon the evidence and offer such observations as he thinks fit, provided that he makes it quite clear to the jury that they are the judges of the facts and are free to accept or disregard his comments as they choose. He is not obliged to tell the jury everything which he might have told them. In R. v. Pope (1910), 4 Cr. App. R. 123, at p.127, Darling J. said: "What we must consider is whether the summing up was so one-sided as to lead to the conviction of the prisoner." In R. v. Hepworth (1910), 4 Cr. App. R.128, the same Judge, referring to the summing-up challenged in the appeal, said: "All passages in it are not moderate", but said the Court was unable to say there was anything in it "which precluded the jury from doing justice" - see also R. v. Reynolds, (1927) S.A.S.R. 228 at pp.237-8 and R. v. Power, (1940) St.R. Qd. 111, at p.132 where these passages are quoted. In R. v. Johnson (1917), 17 S.R. (N.S.W.) 481, and in R. v. Sorlie (1925), 25 S.R. (N.S.W.) 532, at p.539, are to be found quotations from R. v. Stoddart (1909), 2 Cr. App. R.217, where Lord Alverstone L.C.J. quoted from Brett M.R. some pertinent observations upon the practice of submitting a charge to a minute and critical examination, and added: "This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice.""

In my opinion the learned trial Judge throughout his summing up made it abundantly clear to the jury that they had to decide matters of fact. They would have been under no misapprehension that they remained the judges in that area, free to accept or disregard his comments as they chose. In fact, he had specifically told them at the outset of his summing up that they did not have to accept any view he might express on a matter of fact, that they were perfectly free to disregard what he said about facts.

APPELLANT WURRAWILYA

I repeat the conclusion already expressed in relation to complaints made on behalf of this appellant of the summing up and re-direction. In my opinion, except as mentioned below, they provide no valid criticism.

Two other matters in her case, however, were argued and I proceed to consider them. The first is in relation to the passage as to the use to be made of self serving statements to which earlier I have referred.

His Honour said -
"The crown of course, does not vouch for the truth of everything that an accused person said to the police. How could the crown do so, but the crown can rely upon the things that they have said as admissions. You see, for instance, Mr. Avery said to you that in the answer to one question, the accused, Rhoda Wurrawilya said to the police that she was paralytic drunk and he went on to say that the crown has to exclude that.

Now, just because Rhoda said to the police that she was paralytic drunk, that does not prove as a fact that she was paralytic drunk. It only proves as a fact, that she said to the police that she was paralytic drunk. You will have to make up your mind if she was drunk or not from other evidence in the case. It may be that you will accept that she was paralytic drunk, but that is for you to make a judgment about it. The mere fact that she told the police does not prove as a fact."

I note that no complaint was made nor re-direction sought at the trial on this subject. Statements were made to Sgt. Brainbridge when he was questioning the appellant Wurrawilya on 4 June 1981. Amongst other things, she said to him in answer to questions which I set out below -
"Q. Could you have hit him more times, but cannot remember doing that?

A. Yes.

Q. Why wouldn't you be able to remember?

A. I was paralytic drunk.

Q. Was there anyone else there when you were hitting this old man?

A. I can't remember, but I think I was there by myself.

And later -

"Q. Are you sorry for what you did to that old Jan?

A. Yes.

Q. Why are you sorry?

A. Because when I was drunk I did not know what I was doing."

Authorities which deal with this subject are referred to in Lopes v. Taylor (1970) 44 A.L.J.R. 412 (Lopes) in the Judgment of Gibbs J. (as he then was) at p.421-422 where he said -
"There has been, in Australia, a conflict of opinion on the question whether, when one party tenders evidence of admissions made by the other, the latter may, for the purpose of discharging an onus of proof that lies upon him, rely on self-serving statements forming part of the admissions. On one hand, there is the opinion expressed in Day v. Dyson (1965) V.R. 165, at p.169, followed in Revesz v. Orchard, (1969) S.A.S.R. 336, that self-serving statements made in the course of an admission, although admissible as explanatory or as qualifying the admission, are not for other purposes evidence of the truth of what was stated. On the other hand, there is the view that where one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated, although the Court is not bound to accept all parts of the statement as true but may give different weight to different parts of the statement: see Higgins v. Dorries; Higgins v. Donnelly, (1965) Qd. R.389, at pp. 395, 396; State Government Insurance Office (Queensland) v. Saarinen, (1967) Q.W.N. 23; Horne v. Tweed River Transport Pty. Ltd. (1967), 61 Q.J.P.R. 114, at pp.119,120; Eyre v. Nationwide News Pty. Ltd. (1968), 13 F.L.R. 180, at p.185; and Sharp v. Hotel International Ltd., (1969) V.R. 103, at pp.109, 110. I have myself, when sitting elsewhere, accepted this latter view as correct and although as at present advised I see no reason to alter my opinion it does not seem to me to be necessary in the present case to pronounce finally on this question."

His Honour's references to "elsewhere" may have been to his reasons for Judgment in the case of Eyre v. Nationwide News Pty. Ltd. In Lopes, Barwick C.J. said that he found no need to discuss the question whether the statements are to be regarded as merely self serving and of no evidentiary value. In the same case, as I read the judgment of Menzies J. at p.417, he did accept that such statements had evidentiary value but in the circumstances found it impossible to conclude that the defendant's account of what happened should be accepted in full and without reserve. He said -
"To accept an admission in a statement does not commit a Court to accept everything in the statement."

So far as Windeyer J. dealt with the question at p.418, he seems to me to be indicating that there was such a degree of difference between the weight attached to an admission on the one hand and a self serving statement on the other hand, that the Tribunal from which the appeal was ultimately brought (via the Full Court of Western Australia) was entitled to conclude that the self serving statements were not sufficient to raise a finding of contributory negligence of the other party concerning whose actions the statements were made and where the onus was on the maker of the statements. So he did not reject self serving statements as being of no evidentiary value. The judgment of Walsh J. at p.419 accepts that the self serving statements would be evidence for him but, again, that their weight was less than admissions. He said -
"But I am not satisfied that for the purpose of deciding the issue of contributory negligence the appellant's statements ought to be accepted fully."
He regarded the failure of the appellant to give evidence as reducing the weight which otherwise might have been accorded to those statements.

With respect, I add the following authorities as bearing upon the discussion as to the probative value of self serving statements; Jack v. Smail (1904-1905) 2 C.L.R. 684 at p.695; Herbert v. Benson 44 S.R. (N.S.W.) 382. In the last case all three members of the Full Court of New South Wales appear to recognise that a jury may accept part of evidence tendered in a deposition and reject other parts; or attribute to them different weight. Jordan C.J. who dissented, appears to accept the right of a jury to receive and act on admissions and disregard exculpatory matter; but he did not exclude the availability of the latter from having some evidentiary value.

There may have been in the past some variation in judicial approach in England. In the latest case to which attention has been drawn, viz. Findlay Duncan 73 Cr.App.R. 367, a decision of a Court consisting of the Lord Chief Justice, Boreham and Drake JJ., this passage appears at p.364 -
"We turn to examine the authorities. In McGregor (1967) 51 Cr.App.R. 338; (1968) 1 Q.B. 371 Lord Parker C.J., at p.341 and p.377, 378 respectively said this: "As we understand it, Mr. Dovener says and says rightly that, if the prosecution are minded to put in an admission or a confession, they must put in the whole and not merely part of it." He later cited with approval a passage from the then current edition of Archbold (36th ed.), para.1128: ". . . .the better opinion seems to be that as in the case of all other evidence the whole should be left to the jury to say whether the facts asserted by the prisoner in his favour be true." Lord Parker went on to consider and reject out of hand a submission by counsel for the appellant that the jury should have been directed to give equal weight to both parts of the appellant's statement, those containing admissions and those containing excuses or explanations.

This case is clear authority for the proposition that in the case of a "mixed" statement both parts are evidence of the facts they state, thought they are obviously not to be regarded as having equal weight."
And later at p.365 -
"Where a "mixed" statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statements are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."
Finally, I would repeat the reference to Allied Interstate (Q'ld) Pty. Limited v. Barnes (1968) 118 C.L.R. 580 per Barwick C.J. at p.584 and 585. For a general discussion of the subject see Cross on Evidence 2nd Australian edition at p.504 et seq. Phipson on Evidence 12th ed. starting at p.297 para. 683.

In my opinion the weight of authority is in favour of the submission made on behalf of the appellant. With respect, the direction of the learned trial Judge in this regard, unassisted as he was by any reference to authority, was incorrect. However, in the circumstances here, the jury were already considering the claim by the appellant in her statement from the Dock which was to the same effect. And, beyond doubt, as is clear from the summing up, the question of the degree of intoxication of each appellant, was in the forefront of the issues submitted to the jury. Further, though the jury might have accepted clearly that the statement, as admitted, was only the evidence that she said she was drunk rather than of the fact, they could well have accepted such a statement made before she was heard to the same effect in Court as showing a certain consistency in her claims and thus in the nature of corroboration, even if self corroboration.

I do not consider the error was such as to vitiate the verdict against this appellant.

For the appellant Wurrawilya, it is argued that the learned trial Judge should have submitted to the jury an issue of provocation; that if otherwise they were disposed to consider she may have been guilty of murder, (cf. Johnson v. The Queen (1976) 136 C.L.R. 619 at 643) they should by reason of certain insulting words find her guilty of manslaughter and not murder. There is no specific section in The Criminal Law Consolidation Act and Ordinance on this topic. So one must turn to the Common Law to see what is the ambit of the defence. I note that in Da Costa v. The Queen (1968) 118 C.L.R. 186 at pp.202, 213 et seq. members of the High Court seemed to refer to Holmes v. Director of Public Prosecution (1946) A.C. 588 as an authority to which resort may be made for the common law version of provocation. Probably at common law, words "in circumstances of a most extreme and exceptional character" could amount to relevant provocation: see ibid at pp.598-602. And see generally the article in 31 A.L.J. 790.

What has been quoted as a common law (i.e. before the Homicide Act 1957 s.3) description of provocation is that found in R v. Duffy (1949) 1 A11 E.R. 932 per Goddard C.J. quoting Devlin J. -
"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."
The appellant's Counsel pointed to the words in her statement from the Dock (sic) -
We was drinking, and he said to me, "Black bitch", that's why I got wild. I got the pipe and hit him twice.

. . . .

Old Jan he got drunk and angry I was full drunk. He called me a black bitch and a slut. He swore at me. Ngaire and Pamela put the pipe in my hand and said to me "Hit him, hit him". I hit him on the back first and I hit him on the head once. . . .I ask for money, I never meant to hurt him bad. . . ."
The appellant Wurrawilya's statement as to insulting words was corroborated by the witness Doreen Wurrawilya. His Honour said to Counsel before addresses that he did not think provocation was open, that if it was put he would tell the jury to take no notice.

For the purpose of this discussion I accept that at common law "mere words" can be sufficient to entitle an accused person to an appropriate direction. (cf. R. v. Tsigos (1964-65) N.S.W.R. 1607 per Walsh J. (as he then was) at p.1610. Nor is it necessary that an accused person's expression which is to be the basis for a defence of provocation should actually assert or spell out a loss of self control, cf. Lee Chun Chuen v. The Queen (1963) A.C. 220 at p.232; R. v. Tikos (No.1) (1963) V.R. 285 at p.299. Bearing these matters in mind, in my opinion the words used may have caused the appellant to "get wild", but then were not sufficient to cause any reasonable person nor is there evidence, even in the statement from the Dock by this appellant, that she experienced a sudden or any loss of self control, nor that she was subject to passion to the degree and as described in the definition. There was no error by the learned trial Judge in failing to direct the jury upon this issue, cf. R. v. Tikos (supra) at p.299 per Sholl J.; per Monahan J. at p.304.

One aspect of the Notice of Appeal, though dealing with the summing up, might be considered further, e.g. -
"9. The Learned Trial Judge erred in that the whole tenor of his directions to the jury after they had initially retired to consider their verdicts was a direction to convict and not a direction which included any adequate or proper reference to the defence case."

The complaint, as it was argued, is concerned with what were said to be comments too strongly adverse to the appellants made by the learned trial judge in his summing up. But a trial judge is entitled to express his own view of the facts. In R. v. Petrie (1946) 63 W.N. (N.S.W.) 258 Jordan C.J. said at p.260 -
". . . . a Judge is clearly entitled to . . . . indicate his view of the facts so long as he makes it clear that the decision is for them."
and in R. v. Kerr (supra) at p.247, the Court cited authority supporting that a trial judge is "clearly entitled to express his opinion on the facts . . . . . provided he leaves the issues of fact to the jury to determine." The comments of the trial judge may not, of course, be stronger than the facts warrant - Reg. v. Bolic and Judd (1969) Qd.R. 295 at p.304. In R. v. Umanski (1961) V.R. 242 at p.243, the Full Court of Victoria said -
"A persual of the charge has satisfied us that the learned chairman did comment strongly on the evidence and did so in a manner which would have left little doubt in the minds of the jury as to his own personal views of the evidence. But is this in itself a sufficient ground for our setting aside the verdict?

The right of the trial judge to comment and indeed to comment strongly on the evidence and otherwise offer such observations as he thinks fit is well established by authority provided that - and this is vital - he makes it quite clear to the jury that it is they who are the judges of the facts and that they are free to accept or disregard his comments as they choose: see R. v. Kerr (No. 2) (1951) V.L.R. 239, at pp.247-8."
See also R. v. Tikos (supra) at p.304 per Monahan J. And in the unreported High Court decision Tsigos v. The Queen (earlier I have referred to the report of proceedings before the Court of Criminal Appeal of New South Wales) it is worth noting that the learned trial judge said to the jury during his summing up -
". . . . I think I should tell you this, gentlemen, on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape of the verdict of guilty of murder or manslaughter."
The Chief Justice, with whom the majority agreed (Kitto J. dissenting) said - and referring to the remarks of the trial judge -
"He was entitled to express to them his own view of the facts, reminding them that none the less they were the sole judges of them and at liberty to discard his views. This he did tell them. He was entitled to remind them of their oath to return a verdict according to the evidence.

In my opinion, in the circumstances of this case, in expressing himself as he did he was doing no more than he was entitled to do, however direct and forceful the language in which he conveyed his observation, and however unnecessary, as I think it was, in this case to speak as he did. I do not think the summing up as a whole was calculated to or would convey to the jury that in point of law they must convict the applicant either of murder or of manslaughter."

The criticisms of the summing up have not persuaded me that it was deficient except as to the direction regarding self serving statements which, as I have said, though incorrect, was not such as to vitiate the trial.

The comments of the trial judge, so far as "adverse" to the cases of the appellants and each of them, were, on the authorities, well within his entitlement.

SENTENCE

Each of the appellants being an aboriginal, by reason of s.6(1C) of the Criminal Law Consolidation Act and Ordinance a life sentence was not mandatory. It was open to the Judge to 'impose such penalty as, having regard to all the circumstances of the case, appears to him to be just and proper'.

The arguments offered on behalf of appellants that, in all the circumstances, the sentences imposed should be reduced, merit consideration. However, as I am aware of the course proposed by the majority, it is inappropriate to say anything further on this topic.

Accordingly, the order I would propose is that the appeal be dismissed.

[1982] FCA 159

30 JULY 1982