Duggan v The Queen

[2001] TASSC 5

[2001] TASSC 5

CITATION:              Duggan v R [2001] TASSC 5

PARTIES:  DUGGAN, Richard Andrew
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 104/1999
DELIVERED ON:  7 February 2001
DELIVERED AT:  Hobart
HEARING DATES:  28 August 2000
JUDGMENT OF:  Crawford, Slicer and Evans JJ
CATCHWORDS:

Criminal Law - General matters - Criminal liability and capacity - Defence matters - Provocation - Evidence and procedure - No evidence of loss of self-control - Directions concerning law of provocation unnecessary.

Criminal Code (Tas), s160(3).

Bullard v R [1957] AC 635; Van Den Hoek v R (1986) 161 CLR 158; Packett v R (1937) 58 CLR 190, referred to.

Aust Dig Criminal Law [63]

Criminal Law - Particular offences - Offences against the person - Homicide - Murder - Practice and procedure - Alternative verdicts - Direction to jury - Where evidence points to murder or nothing - Direction as to law of manslaughter - Not sought by accused person - Direction not required.

Criminal Code (Tas), ss156(2)(a)(c), 159(1).

R v Williamson (2000) 1 VR 58; Beavan v R (1954) 92 CLR 660; Markby v R (1978) 140 CLR 108; Buttle v R [1984] Tas SR 209; Frost v R [1969] Tas SR 172, applied.
Aust Dig Criminal Law [121]

Criminal Law - Particular offences - Offences against the person - Homicide - Murder - Practice and procedure - Sentencing - 16 years' imprisonment - Whether manifestly excessive.

Aust Dig Criminal Law [124]

REPRESENTATION:

Counsel:
             Appellant:  P F Tehan QC
             Respondent:  D G Coates
Solicitors:
             Appellant:  Wallace Wilkinson & Webster
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2001] TASSC 5
Number of Paragraphs:  81

Serial No 5/2001

File No CCA 104/1999

RICHARD ANDREW DUGGAN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
EVANS J

7 February 2001

Order of the Court:

Appeal dismissed

Serial No 5/2001

File No CCA 104/1999

RICHARD ANDREW DUGGAN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
7 February 2001

1. The appellant was found guilty of murdering Nathan John Hortle.  He appealed against his conviction and against the sentence of 16 years' imprisonment which was imposed for the crime.  The grounds of appeal against conviction were:

1The verdict of guilty was against the evidence and the weight of the evidence and was unsafe and unsatisfactory in all the circumstances.

2The learned trial judge erred in law by failing to instruct the jury that the alternative verdict of manslaughter was able to be returned on the indictment. 

3The learned trial judge erred in ruling admissible evidence of Jillian Ann Flood that she had heard the appellant say over the telephone "we might have to shoot our way out" and evidence of questions and answers in the appellant's record of interview concerning the matter. 

I will deal with the grounds in reverse order, but will first relate some of the material evidence.

1. At about 2am on Sunday, 20 June 1999, the appellant killed the deceased when he discharged a shotgun into the upper part of the deceased's abdomen.  The evidence established that the gun was discharged when its barrel was no more than three metres from the deceased.  The defence was that the discharge of the gun was lawfully justified as an act done in self-defence.

Antipathy between the appellant and Scott Richmond

1. The appellant had been married to Naomi McKeown.  After five or six years they separated in 1996 and subsequently divorced.  Tensions between them remained.  Between 6pm and 7pm on 19 June, the appellant went to Mrs McKeown's home at Talbot Road, Launceston.  Present at the time were Mrs McKeown and Mr Richmond, who was living with Mrs McKeown.  The appellant arrived at the house in the company of Mrs McKeown's 17-year-old son, Adrian McKeown, and Adrian's 15‑year‑old friend Bradley Hardwood.  Adrian McKeown had a close relationship with the appellant and lived at Hardwood's home.

1. The appellant talked unpleasantly during his visit to McKeown's home.  He and Mr Richmond did not converse at all except at the very end when the three visitors were leaving, after half an hour or so.  The appellant spoke to Mr Richmond, calling him a "peckerhead".  Mr Richmond was irritated, to say the least.  There was some prior history of antipathy between the two men, but not of violence.

1. Sometime later that evening, Mrs McKeown telephoned the appellant's home.  Her son, Adrian, answered.  The call probably added to the antipathy between the appellant and Mr Richmond.  Mrs McKeown's version of the conversation was a little different than her son's version.  According to her evidence, she asked her son not to bring the appellant to her home when the appellant was "like that".  Adrian responded to his mother that if Mr Richmond ever touched the appellant he would kill him and he added that he never wanted to come to her house again.  According to Adrian McKeown's evidence, his mother told him that the appellant was banned from her house and was not to go there anymore and he responded by saying that he would not go there anymore either and that if Mr Richmond came out and touched the appellant, he would kill him.  Mr Richmond listened to the conversation on a telephone extension line. 

1. There was another telephone call between the two houses later in the evening, probably shortly before midnight.  It is difficult to understand from the evidence, the extent to which, if any, it may have affected the tensions which had arisen, but it was possibly at about midnight that Scott Richmond decided to go to Perth and confront the appellant.  He had been consuming alcohol.  His evidence was that he needed a driver and telephoned the deceased to ask him to take him to Perth.  He wanted to "sort out what the problem was".  He did not admit to intending a physical confrontation with the appellant, but he plainly intended an angry confrontation with him.  The deceased arrived in the company of Bradley Wright, and ignoring the protestations of Mrs McKeown and her request that they not do what they were intending, the three men headed to Perth.  It was Mr Wright's evidence that all he knew was that Mr Richmond had some business to sort out with some fellow and he was "just going along".

Mrs McKeown's alerting of the appellant

1. Mrs McKeown's concern was mainly for her son, Adrian, who was in the appellant's company.  She telephoned the appellant.  It was her evidence that she asked him to go to the Lakes for the night and to take both of the boys who were with him.  The appellant promised her that he would.  She telephoned again about five minutes later and asked him again to take the boys to the Lakes.  She said not to worry about the house and that "nothing will happen to the house".  She said that the appellant asked "why, what is going to happen" and she simply responded "Ritchie, just go … please promise me that you will just go now".  The appellant said "all right" and hung up.  She denied that she told the appellant why she wanted him to take the boys and to get away from his house.  However, the evidence of Adrian McKeown suggested that she had told the appellant something about her reason.  He was present when the telephone calls from his mother were received by the appellant.  He said that after the calls had ended, the appellant said something about Scott Richmond being on the way.  Whatever was said, Adrian McKeown interpreted it as meaning that Scott Richmond was coming to make trouble.  Bradley Hardwood was also present when the appellant received the telephone calls from Mrs McKeown.  He said that he heard the appellant saying "how many's coming, who's coming and who's he bringin'".  After the conversation ended, the appellant appeared to be frightened and he also felt scared, believing that some people were coming to do violence.  The appellant did not give evidence at the trial, but when interviewed by the police he referred to the two telephone calls.  He said that in the course of the second telephone call, Mrs McKeown said "they'll kill you" or something like that.  At a different point in the interview, he said that Mrs McKeown "wouldn't exactly tell me what was going to happen, she said something bad's going to happen".  Therefore, it was clear from the evidence that the appellant, Adrian McKeown and Bradley Hardwood concluded that Scott Richmond was on his way to Perth to cause trouble for them.

The events at Perth

1. The appellant had considerable experience with firearms and owned a number of them.  One of his responses to the telephone calls was to collect up two of his shotguns and two high powered rifles, together with a large amount of ammunition, and leave his house unlocked, with the lights on.  In his interview he said that he obtained the firearms for "prevention" or "security".  He drove his vehicle away from the house and parked it at a distance so that "if anyone come they'd think that we'd gone".  He then returned to his woodshed where Adrian McKeown and Bradley Hardwood were waiting for him.  The three of them walked off down the street towards a property owned by people called Anderson.  Both the appellant and Adrian McKeown were armed with a shotgun and rifle each.  According to the evidence of Adrian McKeown, a car came along the road and the three of them jumped a fence into a paddock and went to a stable.  Bradley Hardwood's evidence was that he was told by the appellant to take the appellant's dog and if any trouble started, to get out of it.  He then left the company of the other two, although he witnessed some of the later events, including the shooting of Nathan Hortle. 

1. Scott Richmond, the deceased and Bradley Wright drove up to the appellant's home and parked in the driveway, which was well lit.  Bradley Wright was told to stay in the vehicle, which he did.  Richmond walked into the house.  The kitchen light was on.  He called out and looked around.  No-one else was inside.  He came back outside.  The deceased pulled washing off the clothes line and passed it to Richmond, who threw it on the ground.  He picked up a bluey coat that was hanging behind the back door and threw it on the ground also.  His evidence was that he did those things to cause a minor annoyance. 

1. Adrian McKeown was in a paddock opposite the house and saw something of what was going on.  His evidence was of saying "get the fuck out of the yard and put the shit back" and of discharging the shotgun once into the ground.  Then he and the appellant got over the fence onto the road and started to walk towards the appellant's driveway.  It was Richmond's evidence that he said "let's get out of here" when he heard the shotgun blast, but the deceased said "no, let's go and sort this out" and headed in the direction of the sound.  Richmond followed him.  They met up with the appellant and Adrian McKeown approximately where the driveway met Seccombe Street.  The appellant told the police that he had been about 100 metres away when he heard Adrian McKeown fire the gun and he heard McKeown yelling out.  He then joined McKeown because it appeared that he was in trouble.  Each of the appellant and McKeown was carrying two firearms, according to McKeown.  However, the appellant later told the police that by that point of time they had each discarded a rifle.  Neither Richmond or the deceased was armed.  The deceased did not know the appellant and McKeown and they did not know him. 

1. According to Adrian McKeown, the deceased told him to drop his weapon and punched him in the head, but it did not hurt much.  The deceased unsuccessfully tried to take the shotgun from McKeown, who blocked a second punch.  McKeown's evidence was that the deceased "was waving his hands around and he wasn't walking real straight".  At the time of his death a few minutes later, the deceased had a blood alcohol content of .205 grams of alcohol per 100 millilitres of blood.  A second shot was fired, this time by the appellant.  There was some uncertainty in the evidence as to when it occurred, but it was at about the time of the brief struggle between the deceased and Adrian McKeown, whose evidence was that the appellant said, when he fired, "back off, get away from me".  Scott Richmond gave evidence that he heard someone say "get back or I will shoot", and either Adrian McKeown or the appellant said "back off", and he heard the gunshot.  The appellant told the police that he fired that second shot (his first) as a warning shot, over the top of the deceased's head, although when he was pressed about where he aimed the gun, he was unable to give a clear answer.  He said that he fired the shot as a warning because he believed that Adrian McKeown was in danger.  He said that he was hoping that the deceased would get into his vehicle and leave. 

Retreat along Seccombe Street

1. After the second shot, the appellant and Adrian McKeown moved off along Seccombe Street towards the Anderson property.  Scott Richmond's evidence was that they "jogged off, ran off" and as they did so the deceased told him to stay there and then pushed him over.  The deceased then ran off after the appellant and Adrian McKeown.  By the time he picked himself up, and his mobile telephone which had fallen to the ground, Richmond was some distance behind the others and his next evidence was a description of the shooting of the deceased, to which I will return later. 

1. Adrian McKeown's evidence was that he and the appellant walked backwards up the road.  He said that he saw Scott Richmond try to grab hold of the deceased and heard him tell the deceased to come back, but the deceased would not listen and followed McKeown and the appellant.  McKeown's evidence continued that as the deceased followed them, at a distance equivalent to that from the witness box to the jury box, the deceased was yelling out "kill me" and "shoot me".  He kept repeating those words.  He was not armed.  The appellant then fired another shot in the nature of a warning shot, into the ground.  They were then halfway between the appellant's home and the Anderson property.  Adrian McKeown's evidence was that he and the appellant continued to walk up the road.  The appellant kept on telling the deceased to back off, but he would not do so, and kept yelling "kill me".  They continued on until they reached the Anderson driveway. 

1. Bradley Hardwood was at the Anderson property.  He said that in the darkness he could make out four people.  One of them was Scott Richmond, who said to the appellant, "come on, put me where me mother is", and kept repeating it.  Richmond denied saying that, which raises the question whether the words may have come from the deceased and Hardwood mistook him for Richmond.  Hardwood's evidence continued with a description of the deceased, who was unarmed, walking towards the appellant, who was armed with a gun pointing at the deceased.  The appellant was walking backwards and telling the deceased to back off.  The appellant then fired a shot at the ground near his feet. 

1. The appellant told the police that he and Adrian McKeown "walked backwards um pretty quickly sort of thing".  He said "we were saying fuck off, back off and um … he was off his rocker that bloke he was … like he … he just wouldn't go, he kept on coming".  He said that he might have fired two or three warning shots, possibly even four or five, he could not remember the number.  Whenever he fired he reloaded.  At one point he told the police that "I thought we were in serious strife", although at that point it was not very convincing, for he added that he "would've" believed that the others were armed, and there was clearly no reason for him to believe that.  He maintained that he and Adrian McKeown walked backwards very quickly from his house to the Anderson property, a distance of up to 300 metres, and that Richmond and the deceased kept on coming.  He agreed that he could not see that they were armed.  He fired the last warning shot at the deceased's feet when they were still on the road.  As they reached the Anderson property the appellant jumped over a fence and tripped over.  The deceased kept coming after him.  When they got to the Anderson driveway he said "that's when he was really crazy … he was just like a um a Kamakazi … I dunno whether he was on drugs, that's what it looked like to me he was just completely off his rocker".  He described the deceased as waving his arms, yelling his head off, "yelling out … shoot me, kill me and all that".  He did not assert that the deceased made any physical threats and he did not think that the deceased told him to put his firearms down.  Asked whether he said anything when he fired the last warning shot, he said "back off … back off and he's yelling out, kill me, kill me and that sort of thing and … that's … I was hoping to God that um Andersons were going to come out". 

The fatal shot

1. I come to the evidence of the fatal shot.  Scott Richmond's evidence was that outside the Anderson house, the deceased and the appellant were facing each other about three to four metres apart, both of them standing still.  Adrian McKeown was standing behind the appellant and both of them were holding guns.  The area was well lit by the outside light of the house.  The deceased had nothing in his hands, which he had up in front of his chest with the palms exposed, in a surrendering position.  (In cross-examination, Richmond agreed that shortly after the incident, when he made a statement to the police, he mentioned nothing about the position of the deceased's hands, and asserted that his memory of that came back to him probably a couple of weeks later.)  The gun then went off and the deceased fell to the ground.  The appellant and Adrian McKeown then turned around and left the area, apparently ignoring Richmond's call to come back. 

1. Adrian McKeown described the appellant and the deceased as being about seven to eight feet apart, with the deceased walking towards the appellant at the time, waving his arms around in the air and saying "kill me".  The appellant then shot him.  However, when cross-examined by the appellant's counsel, he agreed with a leading question "did it appear to you that he was about to lunge?"  He was asked that leading question again and replied "yeah, he was starting to walk very quick".  He was then asked whether the appellant could have walked back safely and he replied "not really", and agreed with a leading question which asked whether things were on the ground such as "junk and darkness". 

1. Bradley Hardwood thought that the appellant and the deceased were about two metres apart when the fatal shot was fired.  He described the appellant at that point of time as walking backwards, telling the deceased to back off.  In his examination-in-chief, he was asked whether the appellant or the deceased lunged at the other.  Mr Hardwood's response was that just before the appellant fired the fatal shot, the deceased started coming faster and the gun went off.  The appellant then walked away up the driveway and up the road in the company of Adrian McKeown.  Scott Richmond ran over to the deceased and then yelled out to the appellant and McKeown to "get over here now".  They did not respond.

1. Shortly after his arrest at Perth, the appellant was spoken to by Sergeant Wright.  The officer referred to the deceased having been shot.  The appellant said, "I didn't know who he was, he was a crazy man".  Asked how many shots he had fired, he said that he had fired two warning shots and the one that shot the deceased.  The following exchange occurred.

"Q   Why did you shoot him?

A    He kept coming at us.

Q    What firearm did you use?

AAn old hammer shotgun.  I didn't know how close I was to shoot his feet off.  I had nothing else I could do.

Q    Was he lunging at you?

A    Yep.

Q    Did he have any weapon?

A    I don't know.
…

Q    Where did you shoot him?

ARight in the middle of the chest.  If he was a size 12, he would only be wearing a size 9 now." 

1. In the course of being driven from Perth to Launceston Police Headquarters, the appellant asked whether the deceased was dead.  Sergeant Wright asked "what do you think?"  The appellant then said:

"I reckon he is dead.  If you ever get into this position you'll know what I mean.  We went to Andersons because the light was on.  Went up there for backup.  Was hoping for a witness.  He's a raving crazy man.  We were walking backwards firing warning shots.  We'd only been home an hour or so.  We got the phone calls.  Got the guns together to protect us.  He kept on saying go on fucking shoot me, go on shoot me, he must have been high on something."

He later said that he believed that he had fired three warning shots.  He also asserted that his reference to a reduction from size 12 to size 9 was to how close a warning shot had been to the deceased's feet.

1. A video recorded interview was commenced with the appellant about seven hours after the fatal shooting.  Asked to describe the events in his own words, his response included the following:

"Like I … I got … Adrian back beside me sort of thing and we were walking fast wards [sic] backwards, firing … firing warning shots, the … And … he was saying fuck you know … fucken kill me and all that sort of thing and that you know and he wouldn't … He wouldn't stop he kept on coming … and um … I might've fired another shot near the horse float … that's about half way down the road and ah … The … that's when I said to … said Adrian about um we've gotta get to ANDERSON'S 'cause I thought you know … like … If they come out sort of thing it might … back him off sort of thing you know and that never … that … that never worked because they never come out like … I think they were too frightened to 'cause no doubt they would've been … they would've heard what was going on … and um … I remember just outside ANDERSON'S there I … I fired um … fired another shot, a warning shot sort of thing … I tried to just skim him on the feet sort of thing … and he … he just kept on coming … and … next one … you know as much as I do then …

Q    What do you mean by that

A    Well the next one was the fatal shot

Q    Can you explain to me what happened

AWell he just kept on coming and I … I'd given him enough chances I thought you know … like I said he was … he was out of control whether … whether he was on some sort of drug or something …

QSo just explain to us what you did and what happened from there on

AWell once … Once I fired … Um fired that second last shot he just got you know … Just like he … just … He … he was committing suicide sort of thing you know he was … and … I shot him."

1. The appellant later described the deceased as "charging" and "running" when he fired the fatal shot.  He said that he aimed for the chest and on being asked why, he said: 

"Because he just wouldn't go he … he … it was going to be him or me or … him and Adrian sort of thing, that's what it come down to sort of thing … because … any normal person … it … would just wouldn't have happened and that …".

He agreed that in the end he was aiming to shoot the deceased.  He was then asked whether he would have realised at the time that a shot at that range would be fatal and he answered "what do you reckon, course it would be wouldn't it".  Relevant to that there was later the following passage:

"QAt the time, what's the likely result of firing a shot gun, 12 gauge shot gun into a person's chest at 3 to 4 metres

AWhat would you … you don't know … You don't want me to answer that

QI'm asking … Yeah … what's the likely result

AA fucken kid could tell you that sort of thing

QRight and what is it … and what is that

AYou don't come no more

QSo the time you fired the … that shot the last shot, your intention was to kill that person

AIt wasn't that … it was too quick for that to happen sort of thing but you … we were running out of … out of room."

He was unable to explain why he had not aimed merely to wound the deceased by shooting him in the legs or the feet. 

"We may have to shoot our way out"

1. Mrs Jillian Flood and her husband, Lindsay, were asleep at their home in nearby Fairtlough Street when they were woken by one of the gunshots.  They heard voices, including one saying "back off, back off", or words to that effect.  They heard at least two other shots.  Some time later, the appellant and Adrian McKeown came to their house, each carrying a shotgun.  They were admitted inside and the appellant was permitted to use the telephone.  It was Mrs Flood's evidence that she heard him say on the telephone, "Mum I'm in a bit of trouble, a man is dead" and a little later, "we may have to shoot our way out".  In the course of the police interview, the appellant was asked whether he had told Lindsay Flood that he was considering shooting it out with police.  Presumably the interrogating officer misunderstood which of the Floods claimed to have heard what was said by the appellant, who simply replied in the negative and asserted that he had told Mr Flood that the police had to be telephoned (an assertion with which Mr Flood's evidence did not accord).  Over the objection of the appellant's counsel, the learned trial judge ruled that Mrs Flood's evidence of the statement, "we may have to shoot our way out", was admissible, together with evidence of the question asked of the appellant and the answer given by him in the police interview. 

1. It was the appellant's argument that the evidence of Mrs Flood about that statement should not have been admitted because it was not relevant to any issue at the trial.  It was submitted that the evidence could not assist the jury when determining whether he had fired the gun in defence of himself and that, in any event, the statement was ambiguous for it could have meant that he was contemplating either shooting it out with the police or shooting it out with other persons who Scott Richmond may have organised. 

1. The learned trial judge admitted the evidence because he regarded it as highly relevant and capable of being interpreted by the jury as demonstrating a state of mind inconsistent with that of a person who believed that he had just acted reasonably and within his rights in defending himself.  It was in the nature of an admission against interest.  I respectfully agree.  The question of ambiguity was appropriately a matter for the jury to consider and was material to the question of what weight should be given to the statement, not to its admissibility.  So far as concerned the exercise of a discretion to exclude the statement, the onus of persuading the trial judge to do so rested upon the appellant who called no evidence on the issue.  (Before the jury, Mrs Flood's evidence of the making of the statement by the appellant was not challenged by cross-examination or testimony.)  The appellant's counsel gave three reasons why he submitted the discretion should be exercised in his favour.  The first was that it was a private conversation, the second that it was ambiguous and the third, that the jury might improperly use the evidence as establishing that the appellant had a propensity to shoot persons.  The learned trial judge rejected the claim of privacy and was plainly correct to do so.  It amounted to no basis for exercising the discretion.  The other arguments were not specifically addressed, but his Honour was clearly correct in refusing to exercise the discretion in favour of the appellant.  The evidence was capable of being used by the jury to establish the appellant's state of mind shortly after the fatal shot was fired and, by inference, when it was fired.  There was no significant risk that the jury would misuse the evidence by concluding from it that the appellant had a propensity to shoot people. 

When should manslaughter be left for a jury's consideration?

1. At the conclusion of the case for the Crown, the appellant elected to neither give nor adduce evidence.  In the absence of the jury and prior to closing addresses, counsel made submissions to the learned trial judge about matters which should be put to the jury for their consideration.  The indictment charged the appellant with murder only and counsel for the Crown submitted that the only verdicts open on the evidence were guilty of murder and not guilty and that a verdict of not guilty of murder but guilty of manslaughter should not be left for the consideration of the jury.  (I observe that by virtue of the Criminal Code, ss332(2) and 333, if manslaughter had been left by the learned trial judge to the jury, the verdict open to the jury, as a result, would have been one of not guilty of murder but guilty of manslaughter. The jury would have had no right to find the appellant guilty of manslaughter without, at the same time, finding him not guilty of murder.) It was argued by counsel for the Crown that the only defence to the charge of murder which was open to the appellant on the evidence was one based on self-defence. If it succeeded, then the appellant was entitled to a complete acquittal. If the jury rejected it beyond reasonable doubt, he had to be found guilty of murder.

1. The initial response of the appellant's counsel was that he thought that the appellant would agree and that manslaughter should not be left to the jury, but he asked for time to take instructions.  The learned trial judge gave him the opportunity to do so over the luncheon adjournment that was to follow shortly after.  His Honour asked that before the resumption, a message be sent to him as to whether the appellant wanted the jury to be directed concerning manslaughter.  His Honour commented that if the jury were sufficiently aware of the existence of some innate right to return a merciful verdict, then that would be a matter to be left up to them.  Over the luncheon adjournment, a message was sent to the learned judge that the appellant did not seek to have the jury directed in respect of manslaughter.  On the resumption of the Court, his Honour sought confirmation.  The appellant's counsel said that he did not seek to argue against the Crown's submission and that he did not seek such a direction.  The learned judge remarked that it was rarely the case where manslaughter could not arise, but if counsel for the appellant was not seeking any direction, he would not give it.

1. With respect, I am of the view that the law on the subject was adequately summarised by Charles JA, with whom the other members of the Victorian Court of Appeal agreed, in R v Williamson (2000) 1 VR 58 at 68:

"It is well established that if any view of the facts proved in a trial for murder might reasonably reduce the crime from murder to manslaughter, it is the duty of the judge in summing up to the jury to deal adequately with that issue and to direct the jury to consider the alternative verdict; and the fact that the alternative case was not mentioned by defence counsel does not relieve the judge from the duty of doing so: Mancini v Director of Public Prosecutions [1942] AC 1 at 7, per Viscount Simon, LC; Pemble v R; (1971) 124 CLR 107, at 117-118, per Barwick CJ; Varley v R (1976) 51 ALJR 243 at 245; R v Schneidas [1981] 2 NSWLR 713 at 715-716. These and other authorities leading to the same conclusions were recently discussed in this Court in the context of an issue of provocation in R v Thorpe [1999] 1 VR 326 at 330-331. The cases establish that in an appropriate case the judge is obliged to put the issue of manslaughter to the jury no matter what course is followed by the defence, even if, say, a defence such as provocation has been expressly disavowed by the defence. See eg Van Den Hoekv R (1986) 161 CLR 158 at 161-163. Another way of expressing the obligation of the Crown and the Court is that it is necessary for the Crown to exclude beyond reasonable doubt all reasonable views of the facts which are consistent with innocence of murder: R v Koutsourides (1982) 7 A Crim R. 237 per Fullagar J (with whom Young CJ and Starke J agreed) at 241 On the other hand, if on no view of the evidence which might reasonably be adopted would the crime amount to manslaughter and not murder, and counsel for the accused has not suggested to the jury the possibility of manslaughter, the judge is under no duty to inform the jury that it is within their power to find manslaughter (Crimes Act 1958, s421(1)(a)) unless the jury ask a question on the subject, in which case it will usually be the judge's duty to inform the jury that upon an indictment for murder it is within the province of the jury to find a verdict of manslaughter: Ross v The King (1922) 30 CLR 246 at 254; Beavan v R (1954) 92 CLR 660 at 662; R v Markby (1978) 140 CLR 108 at 114; R v Holden [1974] 2 NSWLR 548."

1. Applying that view of the law to the circumstances of this case, the question whether not guilty of murder but guilty of manslaughter should have been left to the jury as an alternative to a verdict of guilty of murder, depended on whether there was evidence upon which it might reasonably have been concluded that the crime amounted not to murder but to manslaughter.  Later in his judgment, Charles JA looked for a "reasonable basis upon which a verdict of manslaughter might have been found by a jury".  In Beavan v R (1954) 92 CLR 660 at 662, the court expressed the test as whether, on any view of the evidence which might reasonably be adopted, the crime amounted to manslaughter but not to murder. In Varley v R (1976) 12 ALR 347 at 351, Barwick CJ referred to whether there was "a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter" as determinative of the obligation in the trial judge to direct the jury accordingly, regardless of the tactics or manoeuvring of the accused or of those representing him. In Markby v R (1978) 140 CLR 108 at 113, Gibbs ACJ said that on the trial of a charge of murder, a judge has a duty to direct the jury that a verdict of manslaughter is open to them if there is a basis in the evidence for such a possible verdict, but the judge is not bound to invite the jury to consider a verdict which they could not properly return, having regard to the evidence given.

1. In this Court, in Buttle v R [1984] Tas SR 209, Neasey J said, at 213, that if it is reasonably open to the jury to return a verdict of manslaughter, a trial judge is bound to leave the alternative verdict of manslaughter. All members of the court in that case applied what was said by Gibbs ACJ in Markby v R (supra).  Earlier, in Frost v R [1969] Tas SR 172, Crisp J, with whom Burbury CJ and Chambers J agreed, said, at 181, that "the appellant of course would have been entitled to such a direction if there was on the whole of the evidence any reasonable hypothesis consistent with the accused's participation in the fatal events amounting to manslaughter only, even though such a hypothesis had not been advanced by the defence and such a direction had not been requested by it". His Honour put it in another way at 182 when he said that "such a direction can only be omitted where on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder …, Beavan v R (supra) at 662."

1. Therefore, a question which arises is upon what basis, if any, was it open to the jury to conclude upon the evidence before them that the appellant was not guilty of murder but guilty of manslaughter.  A consideration of the question of provocation necessarily arises. 

Was manslaughter by provocation open?

1. The issue of self-defence was left for the consideration of the jury as an issue in accordance with the Criminal Code, s46, which provides that a person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes to them to be, it is reasonable to use. It was the substance of the defence. Counsel for the appellant addressed no other issue in his closing address to the jury. If the appellant succeeded in advancing it as an issue, he was entitled to a complete acquittal. A successful plea of self-defence cannot reduce what would otherwise amount to the crime of murder to the crime of manslaughter. There is no half-way house, so to speak, which is open with self-defence. Either the person was justified in using the force he used, because it was used in the defence of himself or another person, and, in the circumstances as he believed them to be, it was reasonable to use that force, or it was unjustified. The force used might have been unjustified because it was not used in defence of himself or another or because, in the circumstances as he believed them to be, it was unreasonable to use that degree of force. But whatever might have been the conclusion of the jury on the issue of self-defence, it was not a route to a verdict of not guilty of murder but guilty of manslaughter. Masnec v R [1962] Tas SR 254; McCullough v R [1982] Tas R 43.

1. Nevertheless, the issue of provocation may be open in a particular case on much the same evidence as is relied upon for self-defence, and that may still be so even if self-defence is rejected by the jury.  A well known example of such a case is Bullard v R [1957] AC 635. On the evidence, their Lordships concluded that provocation should have been left to the jury as an issue, along with self-defence. At 644 they said:

"Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given.  To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached."

1. The circumstances of the later case of Van Den Hoek v R (1986) 161 CLR 158 were different from those in Bullard v R in that at the trial in the earlier case, the accused had unsuccessfully sought to persuade the trial judge to leave the issue of provocation for the jury's consideration, whereas in Van Den Hoek v R the accused had sought to rely only on absence of intention and self-defence.  Nevertheless, the High Court held unanimously that on the evidence, provocation was an issue and should have been left to the jury in addition to self-defence.  The following passage from Bullard v R at 642 was cited with approval in the joint judgment of Gibbs CJ and Mason, Brennan and Deane JJ at 161 - 162:

"It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked."

1. There was no direct evidence in this case that the appellant lost his self-control.  He did not give evidence that he did (he did not, of course, give evidence at all) and he did not claim that he did in his statements to the police.  In that respect, the circumstances are similar to those in Van Den Hoek, in which the accused's version of the events was that the deceased came at her with a knife in his hand and she was terrified.  She backed away as far as she could and then lashed out with her legs, hitting the deceased, who slipped and fell down.  He dropped the knife whereupon ("I was so scared") she bent down, picked up the knife, stabbed him and ran.  The wound resulted in death.  The High Court considered the question "whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation".  Op cit at 162.  Notwithstanding that the appellant had not claimed that she lost her self-control, it was the view of the authors of the joint judgment, at 162 - 163, that there was strong evidence (which I will not repeat here) that she was in an hysterical or agitated condition and her very actions bespoke loss of self-control.  In Tasmanian Criminal Law ¾ Text and Cases by Blackwood and Warner (1997) at 714, the observation is made that the "wrongful act" which is raised in cases where provocation is an issue, normally consists of an assault by the deceased on the accused.  It would not be surprising if in many of such cases both self-defence and provocation were raised as issues.  In Packett v R (1937) 58 CLR 190 at 217, Dixon J commented that fear and apprehension may be elements entering into a loss of self-control. In Van Den Hoekv R (supra), the court accepted that fear generated by an assault could lead to a loss of self-control sufficient for the defence of provocation to be raised, notwithstanding that self-defence may have been rejected by the jury.  At 168, Mason J said:

"When all this is understood, there can now be no convincing reason for confining the doctrine to loss of self-control arising from anger or resentment. The doctrine naturally extends to a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment. This extension of the defence conforms not only to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter but also to the emphasis given in modern judgments to a sudden and temporary loss of self-control as the central element in the doctrine."

1. Before proceeding to a consideration of the evidence which might have been capable of supporting provocation, I will state some general propositions concerning the law of provocation in this State.  It is provided by the Criminal Code, s160(1), that culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by some provocation. By subs(2), any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool. By subs(3), the question whether any matter alleged is, or is not, capable of constituting provocation is a question of law for the trial judge, but whether the conditions required by subs(2) were or were not present in a particular case, is a question of fact for the jury. There was clearly no insult on the evidence in this case and on that basis, there needed to be evidence for provocation to be left for the jury's consideration, upon which the jury might have found that:

1    There was a wrongful act on the part of the deceased.

2    The wrongful act was of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.

3    The wrongful act in fact deprived the appellant of the power of self-control.

4    The appellant acted upon it on the sudden and before there was time for his passion to cool, by firing the shotgun at the deceased.

1. Whether provocation should have been left to the jury falls to be resolved by reference to the version of the events most favourable to the accused.  Stingel v R (1990) 171 CLR 312 at 318. In that regard, it was said by Green CJ in Hutton v R [1986] Tas R 24 at 29 - 30:

"It is well settled that in discharging his duty under s160(3) the trial judge must consider the evidence from the point of view most favourable to the accused. In doing so he must also bear in mind that a jury is not obliged to accept or reject a particular class of evidence, or the evidence of a particular witness, in toto, but may accept some parts and reject other parts and he must also bear in mind that a jury is entitled to draw inferences. It follows that before withdrawing provocation from the jury a trial judge must be satisfied that there is no permutation of the findings and inferences which it would be open to the jury to make which could lead to a conclusion that there was matter capable of constituting provocation."

1. The question under s160(2), whether the alleged wrongful act was of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, raises loss of self-control of such an extent and degree as to provide an explanation for or, to constitute, in some measure, an excuse for acts such as those of the appellant which caused death. In other words, the wrongful act must have been capable of provoking an ordinary person not merely to some retaliation, but to retaliation to the degree and method of violence which produced the death. Stingel v R (supra) at 325; Parker v R (1963) 111 CLR 610 at 641. The assessment of whether the alleged wrongful act was of such a nature as to be sufficient to deprive an ordinary person of the power of self-control to the requisite extent, cannot be answered without regard to all of the relevant circumstances the evidence might have established. Conduct which may be quite unprovocative in some circumstances, may be intensely so in other circumstances. Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively. "It is necessary to have regard to the whole of the deceased person's conduct at the relevant time, for acts and words which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control and resort to the kind of violence that caused the death". Moffa v R (1977) 138 CLR 601 at 616.

1. When considering the question whether the trial judge should have left the question of provocation to the jury, it should not be forgotten that in a case where provocation becomes an issue, the onus lies upon the Crown to disprove provocation beyond reasonable doubt.  Packett v R (supra) at 212 - 213, 222; Moffa v R (supra) at 607 - 608, 612, 628. It follows that when a trial judge is exercising his functions under s160(3) by determining whether any matter alleged is, or is not, capable of constituting provocation, he determines whether there is evidence capable of allowing the jury to have a reasonable doubt on the issue of provocation. For the jury, the "ultimate question would be whether the jury are satisfied beyond reasonable doubt of the absence of provocation, that is to say, that the killing was unprovoked in the relevant sense". Stingel v R (supra) at 333. Therefore, for the judge it is not a question of whether there is sufficient evidence capable of persuading the jury to find affirmatively that provocation existed and was sufficient, but a question of whether the evidence is capable of persuading the jury to entertain a reasonable doubt about the issue. Packett v R at 213 - 214.

1. Having regard to the legal principles to which I have referred, I am satisfied that the issue of provocation was not raised by the evidence and that the learned trial judge ought not to have directed the jury concerning it.  There was ample evidence justifying a conclusion that the appellant was fearful of the deceased, but no evidence to suggest that at the moment he caused the discharge of the fatal gunshot he had been deprived of his self-control.  He had fired warning shots which were aimed to miss the deceased, who kept coming towards him, demanding to be shot and killed and refusing to back off when the appellant asked him to do so.  The appellant agreed that he aimed and fired the gun at the deceased's chest.  He shot the deceased because "he kept coming at us".  He said: "I didn't know how close I was to shoot his feet off.  I had nothing else I could do."  Later he said to the police, that the deceased just kept on coming, that he thought that he had given the deceased enough chances and that he aimed for the chest "because he just wouldn't go he … he … it was going to be him or me or … him and Adrian sort of thing".  There was no suggestion in the evidence of any of the witnesses that the appellant was acting as if he had lost his self-control and it was not suggested by anything he said to the police subsequent to the events.  I have not ignored the evidence that the deceased was lunging towards him and that it was at that moment that he fired the gun.  But that aspect of the evidence, in conjunction with all the other evidence, was incapable of establishing in the mind of a reasonable jury, that the appellant may not have been in possession of his self-control.  It would have amounted only to speculation to think that.

Manslaughter under s156(2)(c)

1. It was submitted by the appellant's counsel that the learned trial judge should have directed the jury that guilty of manslaughter under the Criminal Code, s156(2)(c) was a verdict which was open for their consideration on the evidence. In this connection it is important to repeat that upon an indictment which charges one count of murder only, a verdict simply that the appellant is guilty of manslaughter is not open to a jury. The only way under the Code in which a jury may return manslaughter on a charge of murder is by finding the accused not guilty of murder but guilty of manslaughter.

1. The words of s156(2)(c) are simply that a "homicide is culpable when it is caused … by any unlawful act". Culpable homicide of that kind required proof that the appellant committed an unlawful act by intentionally, and without justification, shooting the deceased, that his act of shooting the deceased was inherently dangerous or, to put it another way, that a reasonable person in the appellant's position would have realised that he was exposing the deceased to an appreciable risk of serious injury and that the act of shooting the deceased in fact caused his death. R v McCallum [1969] Tas SR 73; R v Holzer [1968] VR 481; Wilson v R (1991 - 1992) 174 CLR 313.

1. There was ample evidence to justify the jury concluding that the accused's act of shooting the deceased, and causing his death, amounted to culpable homicide in the sense just explained.  To shoot another in the chest with a shotgun from a range of no more than three metres is plainly an inherently dangerous thing to do.  The evidence established that the appellant intended to shoot the deceased in the chest.  It was therefore a clear case of culpable homicide unless self-defence succeeded as a defence. 

1. If the jury was satisfied that the elements of murder, to be found in s157, had been proved, then the culpable homicide amounted to murder. If the jury was not satisfied that those elements had been proved, the culpable homicide amounted to manslaughter. However, it could not amount to both murder and manslaughter, because s159(1) provides that "culpable homicide not amounting to murder is manslaughter". If it amounts to murder, it is not manslaughter.

1. The question then arises whether it was reasonably open on the evidence for the jury to conclude that if the appellant intentionally shot the deceased, he was not guilty of murder but guilty of manslaughter, and the answer to that clearly depends on whether it was open to the jury to find the accused not guilty of murder for reasons other than lawful self-defence (which, if successfully maintained, would have led to an outright acquittal).

1. The jury was directed that to find the accused guilty of murder, they had to be satisfied that the death of the deceased was caused by the discharge of the shotgun voluntarily, intentionally and unlawfully fired by the appellant at the deceased and that:

(a)he so acted with the intention of causing the death of the deceased (s157(1)(a)); or

(b)he so acted with the intention of causing the deceased bodily harm which he knew to be likely to cause death in the circumstances, although he had no wish to cause death (s157(1)(b)); or

(c)in so acting, he knew, or ought to have known, that his act was likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person (s157(1)(c)).

1. There was sufficient in the evidence for the jury to be satisfied that all of those matters had been proved, but the material question is, was it open to the jury not to be satisfied beyond reasonable doubt that at least one of those paragraphs had been proved? Arguably what the appellant intended or knew was open to doubt. For example, relevant to par(a), the appellant was asked by a police officer whether, when he fired the shot, "your intention was to kill that person" and he replied that "it was too quick for that to happen sort of thing …". He made no admission that he had intended to kill. However, even accepting that the jury was entitled to have a reasonable doubt concerning the appellant's intention and knowledge of the likely consequences of his act, the evidence did not allow them to fail to be satisfied beyond reasonable doubt that the elements of s157(1)(c) had been made out. No other conclusion was reasonably open on the evidence. He must have known or, if not, he certainly ought to have known, that his act of shooting the deceased from a range of no more than three metres, aiming as he did at the chest, was likely to cause death. There was a considerable body of evidence which made such a finding inevitable. On the appellant's admissions, the deceased had been demanding repeatedly "shoot me, kill me" and words to that effect; the appellant had previously fired warning shots away from the deceased "because that would have been cold blooded"; the appellant aimed for the deceased's chest and did so because "it was going to be him or me or … him and Adrian sort of thing". The appellant had considerable experience with firearms and claimed to be an accurate shot. In the light of his admissions, no reasonable jury could have failed to be satisfied that at the very least he knew or ought to have known that death was likely. In his own words to the police, concerning whether a shot at that range would have been fatal, "course it would be wouldn't it", a "kid could tell you that sort of thing … you don't come no more".

1. Therefore, there was no evidence upon which the jury could reasonably have concluded that the appellant was not guilty of murder but guilty of manslaughter.

1. There was no other route to manslaughter available.  I therefore conclude that the learned trial judge was not in error by failing to instruct the jury that a verdict of guilty of manslaughter was open to them.

Was the verdict unsafe and unsatisfactory?

1. It was submitted for the appellant that the verdict was unsafe and unsatisfactory because of the errors raised by the second and third grounds.  Having regard to my rejection of those grounds, the submission has no weight.

1. It was further submitted for the appellant that the verdict was unsafe and unsatisfactory because an independent assessment of the evidence should lead the Court to have a reasonable doubt concerning guilt.  There is no merit in the submission.  It was plainly open to the jury to conclude that the appellant intentionally discharged a shotgun aimed at the deceased's chest from a range of no more than three metres.  The jury must have been satisfied that the appellant knew, or ought to have known, that his act was likely to cause death in the circumstances.  If the jury so found, then the only hope the appellant had of avoiding a conviction for murder was if the jury was left with at least a reasonable doubt concerning whether his act was done by way of lawful self-defence and therefore justified according to law.  On the evidence, the jury was entitled to reject self-defence beyond reasonable doubt, if for no other reason than that the force used by the deceased was excessive and unreasonable.  I can find no merit in the appellant's assertion that the verdict was unsafe and unsatisfactory.

Was the sentence manifestly excessive?

1. The appellant was sentenced to 16 years' imprisonment.  No order with regard to parole was made.  Accordingly, after serving eight years of the sentence, he will be eligible for parole. The sole ground of the appeal against the sentence is that it was manifestly excessive. 

1. In his comments on passing sentence, the learned trial judge said that he was satisfied that the appellant did not wish to cause the death of the deceased, but that he in fact caused it by an unlawful act which he either knew or, in the circumstances, ought to have known was likely to cause death.  His Honour found that at the time the appellant acted he was frightened by the approach of the deceased, whom he did not know, and whose reactions he could not confidently predict.  His Honour said:

"You acted in circumstances where you may have thought that you had the right to take his life but the jury has been satisfied, and satisfied beyond reasonable doubt, that your response in the circumstances was excessive and unreasonable, and thereby caused the death of a young man."

At the time of being sentenced, the appellant was 34 years old and had no previous relevant convictions.  The Crown conceded to the learned judge that it could fairly be said the appellant's crime was at the lower end of the scale of seriousness for murder.

1. A perusal of sentences which have been imposed in this State for murder since July 1995, when the imposition of a finite term of imprisonment for murder was first authorised, reveals that the sentence of 16 years' imprisonment was towards the lower end of the scale of severity and well within the appropriate range. I have been able to find only two sentences of less severity, involving 15 years and 10 years, respectively. For an unpremeditated murder under s157(1)(c), a sentence of 16 years' imprisonment might appropriately be categorised as common. The appellant's sentence was not manifestly excessive.

1. For the reasons I have given, I would dismiss the appeal.

   File No CCA104/1999

RICHARD ANDREW DUGGAN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
7 February 2001

1. The appellant was convicted of the crime of murder.  He caused a shotgun to discharge some 2.3 metres from the body of another man with whom he was in conflict.  He was not the initiator of the violence, although he had armed himself and another as a precaution against being overpowered by persons whom he believed, for good reason, were intending violence.  The act of discharge of the weapon was, on his own version, voluntary and intentional in nature.

1. The circumstances surrounding and giving rise to the death are comprehensively stated by Crawford J, whose judgment, in draft form, I have read.

1. The case for the appellant as presented to the jury was one of self-defence. There was cogent evidence that the appellant fired the weapon in defence of himself.  He was not the instigator of the violence, had fired at least one warning shot and had told the other man to desist from his attack.  The verdict of the jury is consistent with a finding that it was not satisfied that the force used by the appellant was reasonable in the circumstances as he believed them to be.

1. The appellant elected not to give evidence at trial and relied on the testimony of others present and on his version of events as given to interviewing police officers.  The videotape of that interview was played before the jury and was available to it as an exhibit.  There was little, if any, reason to doubt the veracity or accuracy of his version of events.

1. The grounds of appeal claim:

"1The verdict of guilty was against the evidence and the weight of the evidence and was unsafe and unsatisfactory in all the circumstances.

2That the learned Trial Judge erred in law by failing to instruct the jury that the alternative verdict of manslaughter was able to be returned on the indictment.

32A  That the learned Trial Judge erred in law in ruling admissible evidence of Jillian Ann Flood that she had heard the applicant say over the telephone "We might have to shoot our way out."

Manslaughter

1. The appellant, through counsel, did not seek a direction that manslaughter was an alternate verdict open to the jury.  When the matter was raised by the learned trial judge, counsel sought time for consideration and instructions, stating:

"Yes it could be that the accused would be happy to agree with the Crown in unusual circumstances but I really do need to go through it with you carefully I think and I haven't had a chance to do that."

1. In relation to the question of whether the jury might return such a verdict on its own initiative, the learned trial judge said:

"If the jury are sufficiently allied as some of them may be to the existence of some innate right to return some merciful verdict then I think that's a matter that we'll have to leave up to them.  We'll adjourn till 2 o'clock.  Before I do adjourn, how long do you think your addresses will be.  I don't want to put this jury under any unreasonable pressure.  How long do you think your address would be."

1. Counsel subsequently indicated that the defence did not seek a direction as to manslaughter.  The appellant claims that manslaughter ought to have been left as an alternative verdict on three bases:

1That it was open to the jury to find that the discharge of the firearm was a dangerous and unlawful act as provided by the Criminal Code ("the Code"), s156(2)(a).

2 By virtue of the doctrine of provocation in accordance with the Code, s160.

3         As an historic right of a jury to return a "merciful verdict".

1. The fact that counsel did not seek an alternative verdict is relevant to the consideration of this appeal.  Whilst it is correct to state that each person is entitled to a trial according to law (BRS v R (1998) 191 CLR 275), it does not follow that a decision by counsel, properly instructed, to adopt a particular course whereby an alternative direction or ruling could have been given, amounts to error such as to vitiate the trial. This is not a case where counsel overlooked a particular point or failed to pursue a particular ruling, but one where counsel considered the position, received instructions and stated to the court that a particular approach would be taken by the defence in relation to the evidence placed before the jury.

1. As Gleeson CJ stated in Crampton v R [2000] HCA 60 at 17, 18:

" … it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case.  Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court.  The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that.  Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.

… as a general rule, litigants are bound by the conduct of their counsel.  This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case."

1. The advantage to the appellant was that the jury was invited to focus on the primary issue of self-defence which, if accepted, would have resulted in an acquittal.

1. The approach precluded a compromise verdict. If the jury was not satisfied beyond reasonable doubt that the homicide was unjustified by reason of self-defence or, alternatively, that the ingredients required by the Code, s157 (1)(a), (b) or (c), had not been made out to the requisite degree, then the appellant was entitled in law to a complete acquittal. That was a course which he was entitled to take and it is not necessarily appropriate to afford a person an automatic ground of appeal if the trial judge accedes to the informed and stated wish of an accused.

1. This is not an appropriate case in which to consider the question of jury dynamics referred to by Neasey J as "a useful phrase" (Apted v R [1981] Tas R 140 at 146) and Cosgrove J as "one as imprecise, speculative, and illusory as the science, art, or quackery of fortune-telling" (Buttle v R [1984] Tas R 209 at 215). However, the presentation of a case in a particular manner is a legitimate province of counsel. The course adopted may be relevant to the exercise of the trial judge's discretion whether or not to leave a verdict of a lesser charge to the jury (R v McCormack [1969] 2 QB 442; Ross v R (1922) 30 CLR 246). However, the tactics adopted by a party are not necessarily conclusive of the matter. As Neasey J said in Apted (supra at 147 - 148) in discussing the implications of the decision of the High Court in Mraz v R (1955) 93 CLR 493:

   "It can be seen that the present case is not one to which the principle of Mraz v The Queen … can be applied, because there was here no misdirection in law, but merely a course taken which the learned trial judge had a discretion to take.  The question is whether the discretion was wrongly exercised, to the degree that it constituted a miscarriage of justice.  It is not clear whether the learned judge actually considered whether he should leave the alternative verdict or not, although the question of accessory after the fact could scarcely have been absent either from his mind or those of counsel, since the appellant had mentioned it in his statements which were in evidence.  However, that matters not.  The fact is that his Honour was not asked to leave the alternative verdict, and did not do so.  The Criminal Code, s402(1) requires this Court to allow an appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice. The only one of those propositions which might arguably apply here is that there was a miscarriage of justice by reason of failure to leave the alternative verdict."

2. The question is whether it can be said that a miscarriage of justice occurred by reason of the failure to leave the alternative verdict to the jury (Buttle v R (supra)).

1. In this case, the appellant did not claim in evidence that he was deprived "of the power of self-control ... acts upon it on the sudden, and before there [had] been time for his passion to cool", as required by the Code, s160. There had been a wrongful act and/or insult and, in many cases, emotions engendered by a mixture of self-defence and provocation are so intermingled that both directions are required (Bullard v R [1957] AC 635; Van Den Hoeck v R (1986) 161 CLR 158; Stingel v R (1990) 171 CLR 312 and Edwards v Reginam [1973] 1 All ER 152). An examination of the evidence given by witnesses present at the time of the shooting does not show any material, direct or inferential, capable of constituting a basis for a verdict of manslaughter by reason of provocation. In Van Den Hoeck (supra), the High Court accepted that the emotion of fear induced by an attack could itself produce a loss of control akin to that produced by anger. Mason J summarised the approach in the following terms at 168:

"When all this is understood, there can now be no convincing reason for confining the doctrine to loss of self-control arising from anger or resentment.  The doctrine naturally extends to a sudden and temporary loss of self-control due to an emotion such as fear or panic as well as anger or resentment.  This extension of the defence conforms not only to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter but also to the emphasis given in modern judgments to a sudden and temporary loss of self-control as the central element in the doctrine."

1. Bradley Hardwood, a friend of the appellant through his association with Adrian McKeown, the son of Naomi McKeown, described how the deceased walked towards the appellant:

" … Ritchie again and Ritchie was walking backwards and he was telling him to back off."

He described the appearance of the appellant as "frightened".  Bradley Wright, an associate of the deceased, heard someone (presumably the appellant) say, "I am not scared to shoot", whilst Scott Richmond, the then partner of Naomi McKeown, heard someone say, "Stay back or we will shoot", following the firing of the first shot.

1. Adrian McKeown, the step-son of the appellant, described the appearance of the other men and the assault upon himself by the deceased.  He stated that the appellant said as he fired a warning shot, "Back off.  Get away from me."  As the deceased continued to advance, McKeown heard him calling out, "kill me" as he was "walkin' up the road … wavin' his hand and everything all over the place" and that:

" … Ritchie and him were arguing for a short time and Ritchie give him another warning shot at the top of the road and Nathan came at him more, started walking towards him so Ritchie jumped over the fence and tripped over."

1. McKeown estimated that when the deceased was shot he was about seven to eight feet away from the appellant.  In cross-examination he described his own emotional state as "frightened" but was not asked about any manifestation of emotion on the part of the appellant.  None of the evidence given by those present at the time of the shooting supported an inference that the appellant had acted other than in a controlled and measured manner.

1. The appellant gave an account of events in a preliminary conversation with informed officers, a formal interview and a subsequent "walk through" demonstration at the scene of the homicide, all of which were recorded on videotape.  The three accounts were consistent, although not articulate.  Statements made by him relevant to emotion, reaction and provocation are stated below.

1         Preliminary conversation:

" … I fired warning shot in driveway of my house, who shot Nathan and where, I did at the ANDERSON'S it was the only thing we could do, why go to ANDERSON'S … for support, why did you shoot him … He kept coming at us … what … Reason you use … oh sorry what firearm you use, old hammer shot gun … I don't know how close I was to him was to shoot his feet off I had nothing else I could do.  Was he lunging at you, yes … did he have any weapon, don't know.

… he's a raving crazy man, we were walking backwards firing warning shots … I think however I fired three warning shots about the size 12 to 9 was about a warning shot, that was close to his feet."

2         Formal interview:

"Sort o thing and I fired a … a warning shot over the top of his head sort of thing or you know just … whether it was up there or down sort of thing just … just let … let him know … Yeah just to … you know give him a … the noise of the shot sort of thing you know … to try and get him back in control sort of thing and um … I don't know, I might've fired another shot … Warning shot .. and … and … um … Like I … I got … Adrian back beside me sort of thing and we were walking fast wards backwards, firing … firing warning shots, the … And … he was saying fuck you know … fucken kill me and all that sort of thing and that you know and he wouldn't … He wouldn't stop he kept on coming … and um … I might've fired another shot near the horse float … that's about half way down the road and ah … The … that's when I said to … said Adrian about um we've gotta get to ANDERSON'S 'cause I thought you know … like … If they come out sort of thing it might …back him off sort of thing you know and that never … that … that never worked because they never come out like … I think they were too frightened to 'cause no doubt they would've been … they would've heard what was going on … and um … I remember just outside ANDERSON'S there I … I fired um … fired another shot, a warning shot sort of thing … I tried to just skim him on the feet sort of thing … and he … he just kept on coming … and … next one … you know as much as I do then …

MO     What do you mean by that

RD      Well the next one was the fatal shot

MO     Can you explain to me what happened

RDWell he just kept on coming and I … I'd given him enough chances I thought you know … like I said he was … he was out of control whether … whether he was on some sort of drug or something …

ARSo just explain to us what you did and what happened from there on

RDWell once … Once I fired … Um fired that second last shot he just got you know … Just like he … just … He … he was committing suicide sort of thing you know he was … and … I shot him

…

RD… *** on me sort of thin I'm telling you this is what's going through my mind.

AR      Right

RD      I got two boys *** and I got me self to think about
…

AR      But you had fears you're saying

RD      Yeah

AR      Right and what were those fears

RD      Um … get fucken shot up or fucken blown up or fucken beaten up
…

RDYeah like I was really spinning out mate if you've … you want to try getting a bit of smoke on your arse sort of thing you … you might know what …

MO     What do you mean by smoke on my arse, what do you mean by that

RDOh … this sort of shit, this … you know it's not a very nice position to be in …

…

MOSo why did you discharge it

RDTo back him off

…

RD… and I … I wanted him that was my intention for him to get in that vehicle and … and get the hell out of it

…

ARWhy then if you were being pursued as you've put it by two persons who you believed were armed did you not fire straight at them

RDBecause that would've been cold blooded um …

…

MO… but you'd agree that your senses were fairly well alert at this stage

RDMy word I was yeah, me eyeballs were popping right out

…

RDYeah he was just going crazy he … saying … yelling out … shoot me, kill me and all that

…

RD… went off by that one I … Like I still didn't want to shoot him I fired it that … that far from his feet

MODid you say anything to him

RDBack off … Back off and he's yelling out, kill me, kill me and that sort of thing and … that's … I was hoping to God that um ANDERSON'S were going to come out

…

ARNo I mean not aiming at the point in front of his feet and so you're aiming across his feet is that what you're saying

RDUm … I don't know like I said it was … it was happening very quickly 'cause that's … That's when

MORight when you aimed at the front of his feet or just before his feet was it a shoulder shot or was it some other type of shot

RDWouldn't have a clue … I wouldn't have a clue … it … it just … you know it just happened … just reaction just happened you know the … you know

…

RD… I don't even know where Adrian was sort of … I knew where he was sort of thing when we … 'cause after

MOI know this may be difficult for you … when you … Fired the fatal shot first of all what position did you have your firearm, was it shoulder or was it um … ah …

RDI don't know

MODo you recall … cocking the trigger

RDNo

ARThe hammer

MOThe hammer sorry …

RDThat's just instinct … instant *****

MOWell I mean there's a fair bit of … you've gotta do a deliberate act haven't you I mean … I mean you've gotta do … I mean you, … it doesn't become automatic

…

RDBecause he just wouldn't go he … he … it was going to be him or me or … him and Adrian sort of thing, that's what it come down to sort of thing he … because … any normal person … It … would just wouldn't have happened and that

ARWhen you took aim at the chest … Is that …exactly where you were aiming for the chest or was it the body as a whole

RDYeah just … um … I don't know it was just … Up and bang sort o thing you know …

ARBut you said you aimed at … chest height

RDYeah

AR… the chest … and you said that it was either at … in your mind at that time that you were aiming to shoot him

RDIn … in the end yeah because … that was … there wasn't … there wasn't much there

ARThere was no intention of that being a warning shot

RDNot … well no not that one because there was … something was going to have to happen

MOYou would've realised at that time, a shot at that range would be fatal

RDBut I was …

MOWould you like me to repeat the question

RDWhat do you reckon course it would be wouldn't it

MOThat's right

ARAnd you stated you didn't expect him to get up

RDWell I didn't know … that's when we … That's when we … um walked backwards up … up further sort of thing

ARDid you see the shot hit

RDPretty well I think

…

ARSo the time you fired the **** … that shot the last shot, your intention was it kill that person

RDIt wasn't that … it was too quick for that to happen sort of thing but you … we were running out of … out of room …

MOWell it's interesting that you … your comment you made to me originally that the last time that ah … you fired the shot you intended to warn him and shoot him in the foot, he kept on coming I'd given him enough chances

RDYeah

MORemember saying that

RDOh … Like I said the

MOWhy couldn't you have just … either walked or ran away yourself

RDBecause I … I didn't know who else was involved … Everything … it was happening so quick

ARYeah but you had seen that this person didn't have any firearms

RDOh listen do you think I would've … I'd shoot him again sot [sic] of thing you know and … and that sort of thing

ARWhat do you mean by that

RDI'm not a fucken shooter … I … it wasn't that I … I just wasted him

ARWhat are you saying the same circumstances you wouldn't fire the shot

RDAh … that's a hard one sort of thing because you know I was … I was only … um fearing for my … my danger and my safety and Adrian's

…

ARWhy didn't you aim at his feet, you said you were capable of hitting his feet if you wanted to

RDYeah but it was dark, he was moving and all that sort o thing

ARWell why didn't you aim at his legs

MO Couldn't you have knee capped him

RDI s'pose you could've

ARWhy didn't you aim to slow him up

RDI just

ARWhy did you have a need to shoot to kill … Nathan HORTLE

RDOh I … I didn't have any need to shoot … I didn't even know him I didn't have a problem with him

ARWhy did you have a need to shoot to kill this person

RDBut I … I … I didn't … he was the one at me … not … I didn't … I didn't even know him I'd never even seen him in me life before

ARAs I said then why did you not wound him you said yourself you were capable, very capable of placing a shot at someone's feet, on their feet if you wanted to, why didn't you shoot for a lower body mass

RDI don't know it just happened."

3         Walk through:

"RD… I can't remember, well this is where he was sort of thing, no I reckon he … 'cause I was here somewhere and hit … This is where he come after me sort of thing, and I jumped the fence there and um … ran up the side there

…

RDIt was just like fucken … A fucken horror show mate they just fucken wouldn't …

…

RDUm there … Like he … He was move … he was … he was heading towards me and … I … I just fired um walking back sort of thing and that's … that … 'cause Adrian was … when I fired, … I think when I fired the gun Adrian was here somewhere and I was there … sort of thing and I … I jumped over that way and I think Adrian's … ran down that way."

1. Those extracts show an understandably inarticulate account and their meaning ought not be constrained by text.  They show fear and a degree of confusion.  But on their widest meaning, they do not indicate a loss of control.  They show a person in a difficult position, attempting a series of resolutions which, upon failure, are replaced with the intentional firing of a shot at close range at the body of the assailant.  The evidence was clearly cogent in relation to the issue of self-defence, but did not form a basis for loss of control by reason of an initial wrongful act or insult.  Allowing for mixed emotion as recognised in Van Den Hoeck (supra), the appellant did not provide an account sufficient to form the basis for the issue of provocation to be put before the jury.  Whether the learned trial judge could have invited the jury to consider the evidence as relevant to provocation, if specifically asked by the defence, out of an abundance of caution, is another matter.  The non-direction, as distinct from a misdirection, did not constitute error such as to lead to the conclusion of miscarriage.

1. The second basis contended for, whereby manslaughter ought to have been left, was that by way of unlawful and dangerous act. The Code provides a series of provisions which govern the tests applicable to the crimes of murder and manslaughter. It defines, for the purpose of the law, what is a homicide (the Code, s153) and causation (s154). The Code, s156, defines when homicide is culpable, which includes a homicide caused:

"(a) by an act intended to cause death or bodily harm, or which is commonly known to be likely to cause death or bodily harm, and which is not justified under the provisions of the Code; …"

The effect of this provision encompasses both the crimes of murder and manslaughter. It is clear that s156(1)(a) clearly applies to the discharge of a shotgun, at short range, at the body of another, unless the act was justified. The jury was required to consider whether or not the Crown had proved beyond reasonable doubt that the appellant had not committed the act in lawful self-defence.

1. The learned trial judge first directed the jury as to the ingredients of the crime of murder and no complaint is made by the applicant about the term of the direction.  Then he gave them a direction as to the issue of self-defence, commencing in the following terms:

"If you're satisfied beyond reasonable doubt that the accused inflicted a fatal wound on the deceased in any of the three circumstances set out in paragraph one of the Memorandum then, subject to my directions in respect of the question of self-defence, the appropriate verdict would be guilty of murder.  However, self-defence is a very real issue in this case and I need therefore to explain it to you."

In doing so he followed the form suggested in Phillips v R [1971] Tas SR 99 at 108 - 109 (see also: Simpson v R A77/1996, Zeeman J, at 7; Walsh v R A68/1993). If the jury were satisfied beyond reasonable doubt that the prosecution had established the ingredients necessary for a conviction for murder, then they were required to consider the use of self-defence. The verdict shows they were satisfied to the requisite degree that the act of murder had not been committed in lawful self-defence. There remained no ingredients which would warrant consideration of the alternative verdict of manslaughter. The crime of manslaughter is defined by the Code, s159, as:

"Culpable homicide not amounting to murder …"

1. Absent evidence of provocation, it could not be said that there existed any reasonable basis on which a verdict of manslaughter might have been found, and no obligation for the learned trial judge to direct the jury in relation to an alternative verdict of manslaughter (R v Williamson (2000) 1 VR 58; Buttle v R (supra)). In the circumstances of this case, the appellant was entitled to a verdict of acquittal if the jury, in rejecting self-defence, were not satisfied that the ingredients stated by the Code, s157, had been proved.

Merciful verdict

1. There remain occasions where it is appropriate for an alternative verdict of manslaughter to be left for the consideration of a jury.  The circumstances which gave rise to the appeal in Ross v R (supra) might be such a case.  But such a course is one of discretion, although the existence of "a verdict which leads to death" (Mraz v R (supra), Fullagar J at 513 - 514, citing Ross v R (supra) at 273) might be a cogent factor which previously affected such an exercise of discretion. However, the exercise of discretion would be affected by the approach taken by an accused person (Gammage v R (1969) 122 CLR 444), or when the question is raised by the jury (Packett v R (1937) 58 CLR 190 at 213). In this case, during the trial the learned trial judge raised with counsel the issue of whether the jury should be directed to consider the alternative verdict of manslaughter. After seeking instructions, the appellant's counsel responded by requesting that the option not be left for the jury.

Conclusion

1. The remaining grounds of appeal were either abandoned or have been dealt with by Crawford J in his reasons for judgment and with which I agree.  I would dismiss the appeal against conviction and sentence.

   File No CCA104/1999

RICHARD ANDREW DUGGAN v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J

7 February 2001

1. I have had the advantage of reading the separate reasons for judgment prepared by Crawford J and Slicer J.  I agree with them.  The appeal should be dismissed.