Fittock v R

[2001] NTCCA 5

Fittock v R [2001] NTCCA 5

PARTIES:FITTOCK, PETER ANDREW

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CCA10 of 1999

DELIVERED:  23 July 2001

HEARING DATES:  12 & 13 June 2001

JUDGMENT OF:  ANGEL J, MILDREN J AND RILEY JJ

CATCHWORDS:

Criminal law – murder – appeal– appeal against sentence and conviction - notice of appeal – failure to comply with rules – exercise of discretion to dispense with failure to comply with rules

Juries – reserve jurors – whether leads to a majority verdict – whether constitutionally valid

Criminal law – sentence – mandatory imprisonment – whether constitutionally valid

Juries – majority verdict – whether constitutionally valid – whether jury misled by trial judge’s direction as to unanimous verdict – whether evidence not proven beyond reasonable doubt if conviction by majority verdict

Criminal law – transferred malice – closing address – alternative theory not opened to jury - whether occurrence of miscarriage of justice – direction to jury – aide memoire – reference to transferred malice clearly withdrawn by trial judge

Criminal law – defences – provocation – whether trial judge erred in failing to direct the jury – obligation of trial judge to raise issue – whether deprived of the power of self control when expectations fulfilled

Criminal law – evidence – witness – obligation upon trial judge - warning by trial judge in situation where a witness admits to perjury – whether warning was manifestly inadequate and/or wrong in law given the serious and significant nature of the evidence – need for and nature of the warning to be a matter for assessment in each case

Criminal Code 1983 (NT), s 98, s 120, s 164, s 368, s 410(a), s 410(b), s 417, s 417(2), s 429(1), s 429(2), s 440; Criminal Procedure Ordinance 1933 (NT), s 3; Juries Ordinance 1962 (NT), s 48(3); Supreme Court Rules 1987 (NT), r 2.01(1), r 2.01(2), r 82.02, r 86.08, r 86.10, r 86.14, r 86.14B(2), r 86.14E; Juries Act 1962 (NT), s 37A, s 37A(5); The Constitution, 1900 (Cth) s 80.

Rostron v The Queen (1991) NTLR 191; R v Bernasconi (1915) 19 CLR 629; Kable v DPP (NSW) (1996) 189 CLR 51, discussed.

Wynbyne v Marshall (1997) 117 NTR 11; Brownlee v The Queen [2000] HCA 36; Cheatle v The Queen (1993) 177 CLR 541; Tipiloura v The Queen (1992) 2 NTLR 216; B v R (1992) 67 ALJR 181; Longman v R (1989) 168 CLR 79; Pollitt v R (1992) 66 ALJR 613; Van Den Hoek v R (1994) 161 CLR 158; referred to.

Bromley v R (1986) 161 CLR 315, applied.

REPRESENTATION:

Counsel:

Appellant:S.H.McFarlane, L.J. Fittock

Respondent:  R.S.L. Wild QC, Dr N. Rogers

Solicitors:

Appellant:McKinley Law

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  

Number of pages:  24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fittock v R [2001] NTCCA 5

No. CCA10 of 1999

BETWEEN:

PETER ANDREW FITTOCK

Appellant

AND:

THE QUEEN

Respondent

CORAM:    ANGEL J, MILDREN J AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 23 July 2001)

THE COURT:

1. On 11 November 1999, the applicant was found guilty by a jury of one count of murder and one count of attempted murder.  He was convicted and sentenced by the learned Trial Judge to imprisonment for life on the murder count and to imprisonment for eight years for the attempted murder count, both sentences to be served concurrently.  The learned Trial Judge fixed a non-parole period of four years in respect of the attempted murder count. 

2. On 7 December 1999, an application for leave to appeal was filed on the ground that “the conviction (sic) was unsafe and unsatisfactory”.  The application went on to say that the applicant had not had the benefit of:

   “…full consideration of learned Counsel of all or any further grounds of appeal with respect to the evidence adduced upon his trial.  The application for leave to appeal is filed to preserve the applicant’s rights of appeal pending due and proper consideration by Counsel of all or any further appeal grounds…”

3. On 31 July 2000, the applicant filed a document headed “Amended Notice of Appeal”.  No Notice of Appeal had been filed in the meantime.  This document, which is not in the form of an affidavit, provides that “The applicant/appellant relies upon the following additional grounds of appeal”.  There are then set out eight grounds.  Three of these grounds (6, 7 and 8) raise issues which were not the subject of any objections raised by the applicant’s counsel at the trial.

4. Section 410(a) of the Criminal Code provides for a right of appeal to this Court on a finding of guilt on a question of law. Section 410(b) provides for an appeal against a finding of guilt that involves a question of fact alone or a question of mixed law and fact, only by leave. Rule 86.08 of the Supreme Court Rules provides:

   No direction, omission to direct or decision in relation to the admission or rejection of evidence of the Judge of the court of trial shall, without the leave of the Court of Criminal Appeal, be allowed as a ground for appeal, or for an application for leave to appeal, unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.

   Rule 86.10 requires an application for leave to appeal to be in accordance with Form 86G and to be accompanied by an affidavit stating the nature of the appeal, the questions involved and the reasons why leave should be granted.

5. Section 417 of the Criminal Code requires an appeal or an application for leave to appeal, to be given in the prescribed manner within twenty-eight days after the finding of guilt. Section 417(2) empowers the Court to grant an extension of time at any time.

6. Rules 86.14 and 86.14E require all leave applications to the Court to be dealt with in the first instance on the papers by a single Judge pursuant to s 429 (1) of the Criminal Code. If leave is refused by a single Judge, s 429 (2) permits the applicant to argue the application before the Court constituted by three Judges. However, r 86.14B(2) requires the applicant to give fourteen days notice to the Director of Public Prosecutions of any ground for which leave has been refused. There is no provision in the Rules enabling an applicant for leave to appeal to amend his application as of right after it has been filed.

7. The applicant has now abandoned the only ground set out in the affidavit supporting the application for leave to appeal and contends that leave is not required. As a “safety precaution” the applicant filed a “Supplementary Appeal Notice” and supporting affidavit seeking leave to appeal on grounds 5, 6, 7 and 8 of the Amended Notice of Appeal and for an extension of time under s 417(2) of the Code. There is no provision in the Rules for a Supplementary Notice of Appeal. Applications for leave to appeal are required to be in accordance with Form 86G. Notices of Appeal are required to be in accordance with Form 86H and applications for an extension of time are required to be in accordance with Form 86L. In addition, applications for an extension of time are required to be accompanied by an affidavit stating the reasons for the delay. The affidavit filed with the “Supplementary Appeal Notice” does not deal with the question of delay.

8. No Notice of Appeal has been filed with the Court in accordance with the requirements of the Rules.  To the extent that the “Amended Notice of Appeal” might be treated as a Notice of Appeal, it is out of time and an order dispensing with non-compliance is also required.  In any event, at least several (and probably all) of the grounds raised require leave of the Court for various reasons.  The only valid application to the Court is the original application for leave.  The proposed additional grounds set out in the “Amended Notice of Appeal” should have been made the subject of a further application for leave in accordance with the Rules, supported by affidavit and there should also have been an application for an extension of time supported by an affidavit explaining the delay.  The attempt to cure this by the “Supplementary Appeal Notice” did not comply with the Rules in a number of material respects and the procedure required by the Rules for these applications to have been dealt with in the first instance by a single Judge have been circumvented.

9. As can be seen, the applicant’s legal advisers have made little effort to comply with the Rules. The failure to comply is not necessarily fatal to the applicant. There is a power to dispense with non-compliance; see r 82.02 and r 2.01(1) and (2). However, applicants and their legal advisers should be aware that the discretion of the Court is not likely to be exercised favourably in the absence of proper grounds, particularly where there has been little or no effort to comply with the Rules. In Rostron v The Queen (1991) 1 NTLR 191 at 196-197, this Court had occasion to complain about the failure of the applicant in that case to comply with the Rules. This is an even worse example of non-compliance than that with which the Court was faced in Rostron.  Fortunately for the applicant, the Director of Public Prosecutions was content to permit the applicant to present his case on the merits by consenting to the application for leave and the substantive appeal to be heard together and the Court permitted that course.  Applicants should not assume that the Director, or this Court, will be so gracious in the future.

   Grounds of Appeal

10. Grounds 1, 2 and 3 seek to argue that s 37A of the Juries Act is unconstitutional. That section permits up to three reserve jurors to be empanelled in any criminal trial. Reserve jurors are treated in all respects as ordinary jurors during the hearing of the trial. If an ordinary juror is discharged before the jury retires to consider its verdict, that juror is replaced by one of the reserve jurors (who is chosen from amongst the reserve jurors by lot). If, at the time the jury is to be sent out to consider its verdict, none of the ordinary jurors have been replaced by a reserve juror, the reserve jurors must be discharged. The purpose of s 37A is to prevent trials from miscarrying if, for some reason, one or more of the jurors selected (up to the number of reserve jurors available), dies or becomes disqualified or is discharged from performing his or her duties. Until relatively recently, jury trials, even for serious offences such as murder, were usually over and done with in one day. That was still very common in this Territory up until the 1950s. However, as the criminal law has developed since then, it has become very common for jury trials to last for several days. Some last several weeks and occasionally a criminal trial may take months. Section 37A was designed to enable the Court exercising its criminal jurisdiction to cope with that situation. It was a much needed reform and one which has worked well in practice.

11. In this case, no objection was taken by counsel for the applicant at trial to the empanelling of any reserve jurors. In fact, the transcript reveals that the applicant’s counsel and the prosecutor agreed that the learned Trial Judge should empanel two reserve jurors and her Honour adopted that course. As events turned out, one of the reserve jurors was discharged by her Honour before the Crown had even opened its case and the other reserve juror was not required and was discharged in accordance with s 37A(5) immediately before the jury retired to consider its verdict. Ground 1 complains that s 37A(5) is unconstitutional because the reduction of the jury from thirteen to twelve has resulted in a majority verdict which is not permitted by the Constitution. Ground 2 complains that s 37A(5) is contrary to s 80 of the Constitution because it permitted the jury (in this case of thirteen) to be reduced to twelve, whereas the applicant was entitled to have all jurors participate in the verdict. Ground 3 complains that s 37A(5) offends s 80 of the Constitution because it enabled the reserve juror to communicate with the jury about the evidence in the trial. We assume that reliance will be placed upon Cheatle v The Queen (1993) 177 CLR 541. Counsel for the applicant, Mr MacFarlane, conceded that this Court was bound by a long line of authority starting with R v Bernasconi (1915) 19 CLR 629 to reject each of these grounds, but asked that we note the contention being put. We consider that leave to appeal on each of these grounds should be refused as there is binding authority of the High Court which would require each of these contentions to be rejected.

12. Ground 4 seeks to argue that s 164 of the Criminal Code, which obliged the learned Trial Judge to impose a mandatory sentence of imprisonment for life, is unconstitutional because it offends the “inviolable doctrine of the separation of powers” and “interferes with the integrity and independence of the judiciary and is therefore contrary to Ch.III of the Constitution”.  It appears that the applicant would wish to argue the application of the decision in Kable v DPP (NSW) (1996) 189 CLR 51 in order to support this contention. Counsel for the applicant conceded that this Court is bound to reject this argument because there is binding authority of the High Court on the point stemming from R v Bernasconi, supra.  In addition, it was conceded that the Court of Appeal in Wynbyne v Marshall (1997) 117 NTR 11 rejected the same argument. We observe that leave to appeal to the High Court from the Court of Appeal was refused. We note the applicant’s contention, but as this Court could not allow the appeal on this ground, leave to appeal on that ground must be refused.

    Ground 7

13. In the applicant’s outline of argument, the applicant indicated that he wished to challenge the constitutional validity of s 368 of the Criminal Code which permits the Court to accept a majority verdict in certain circumstances, even in relation to a verdict of guilty or not guilty to a charge of murder.  Majority verdicts in relation to criminal trials have a long history in this Territory.  Such verdicts were introduced by the Criminal Procedure Ordinance 1933, s 3, which permitted a majority of nine jurors in certain circumstances.  The power was extended further by the Juries Ordinance 1962, s 48(3), but neither provision applied to murder trials. The present provision, which applies to all criminal trials, dates back to the passage of the Criminal Code which came into force on 1 January 1984.  The applicant concedes that this challenge, in so far as it rests upon a constitutional challenge, cannot succeed because of the line of authorities beginning with R v Bernasconi (1915) 19 CLR 629. We note the argument, but it must fail in this Court: see also Brownlee v The Queen [2001] HCA 36.

14. An additional argument was put on behalf of the applicant that her Honour erred in advising the jury in her summing up that “your verdict should be unanimous”.  It was put that this was liable to have been interpreted by the jury that they may return majority verdicts.  We do not think that the jury were likely to have been misled in any way by her Honour’s direction.  We note that neither counsel requested her Honour to redirect the jury on this issue.  In any event, the verdicts on both counts were in fact unanimous.  It was suggested by Mr Fittock of counsel who argued this ground for the applicant that some jurors may have consented to a unanimous verdict because they assumed that a majority verdict could have been taken anyway.  There is no substance to this submission. 

15. Then it was put that the learned Trial Judge should have explained s 368 of the Code and how it conflicted with s 440 of the Code which requires proof beyond reasonable doubt. It was submitted that there could not be proof beyond reasonable doubt if a conviction was obtainable only by a majority verdict, relying on what fell from the Court in Cheatle v The Queen, supra, at 553.  However, as their Honours there observed, there is no logical inconsistency in the co-existence in the law of the criminal onus of proof and majority verdicts of guilt.  When the Legislative Assembly passed the Criminal Code Act in 1983, it must have accepted that, in circumstances where a majority verdict of guilty is permitted, that amounts to proof of guilt beyond reasonable doubt.  Nor do we accept that the learned Trial Judge should have said anything to the jury about majority verdicts.  The approach to be adopted was discussed by this Court in Tipiloura v The Queen (1992) 2 NTLR 216 at 218-219. There is no substance to this ground of appeal and leave must be refused on this ground as well.

    Background Facts

16. Before discussing the remaining grounds, it is necessary to relate some of the factual background.  According to the applicant’s evidence, the applicant had been in a relationship with the deceased, Debbie Batzler, since March 1997.  In 1998 the deceased fell pregnant.  In May 1998 the deceased began a relationship with one Jordison.  According to Jordison, the relationship between the deceased and the applicant had finished by then.  According to the applicant, his relationship with the deceased continued until October 1998.  In fact, it was the applicant and not Jordison to whom the deceased was pregnant.  The applicant had difficulty coping with the termination of the relationship and attempted unsuccessfully to reconcile his relationship with her.  The applicant’s evidence was that he had been promised access to the child by the deceased.  According to the applicant he did not discover that the deceased was having a relationship with Jordison until about October 1998.  After he found out about Jordison, he attempted unsuccessfully on a number of occasions to speak to him, his intention being to tell Jordison to keep away from the deceased until the baby was born. 

17. The deceased had previously been the de-facto wife of one Forno who had become the manager of the Borroloola Inn and the deceased was also employed there as his assistant.  During 1998, Mr Forno lived in a caravan until about October when he moved onto a property in the general area.  The deceased resided at the Inn.  Both Fittock and Jordison lived in the Borroloola area at all relevant times.

18. On 6 November 1998, the applicant went to the Borroloola Inn where he consumed approximately twelve mid-strength beers between 6.00 pm and midnight.  He then drove to his home where he consumed rum.  He later took a semi-automatic self-loading rifle and a magazine which had twenty-one rounds in it which he attached to the rifle.  The rifle was a Ruger Mini 14, .233 calibre.  The applicant then drove to a place near the airport where he got out of his car, taking the rifle with him.  He slid a live round into the firing chamber of the rifle and walked to the fence line of the Inn where the deceased was still working. He did not engage the safety catch.  According to his evidence, he intended to confront Jordison.  He said he intended to fire the rifle into the air in order to get his attention. Earlier that evening he had seen Jordison’s car parked in the Inn’s carpark.

19. When the applicant arrived at the fence, he climbed over it and went across towards the back of the hotel.  He had with him the loaded and cocked rifle, a bottle of rum, some Coca-Cola and a glass.  His evidence was that he eventually found his way to the carpark and sat down between some parked cars.  He said that his intention was to wait for Jordison whom he hoped would be starting work early in the morning.  The police subsequently found a glass, a Coca-Cola can and a rum bottle in this location.  The applicant’s fingerprints were found on the glass and it was an admitted fact that DNA found on a cigarette butt at the same location was that of the applicant.

20. After the deceased finished work at about 2.00 am on 7 November 1998, she went to a room in a demountable building used as accommodation for travellers.  The demountable was one of a block of three such buildings located in the shape of a quadrangle at the rear of the Inn and adjacent to the carpark.  There was a fence at one end which completed the quadrangle.  Inside the quadrangle, there was a lawned area.  Jordison was waiting for the deceased inside the room.

1. The Crown’s case was that the deceased left the room at about 4.00 am.  As she shut the door, she was confronted by the applicant who shot her in the chest at close range, killing her almost immediately.  Two shots were located in the deceased’s body, one which entered under the left armpit and one which entered just below the rib cage.  The pathologist’s evidence was that the wound to the left arm pit was caused first, that this wound would have been fatal within a very short time and would have very likely caused the deceased to fall over virtually instantly.  The pathologist’s evidence was that the second wound would also have been fatal within a very short time.  Both wounds were consistent with being fired from a distance no closer than a metre away, but it was otherwise not possible to say if the shots were fired from any particular distance from the deceased. 

2. According to the evidence of Jordison, upon hearing what he thought was one shot, he got up from the bed where he was lying naked and went towards the door.  Before reaching the door, the door opened and the applicant thrust the barrel of the rifle through the door saying, “Where is that cunt?  I’ve got something for him and I’ve still got some for me.”.  Jordison grabbed hold of the barrel with both hands and pushing it up in the air, forced Fittock out across the lawned area until they hit the opposite demountable.  As he grabbed the rifle it discharged.  A struggle then ensued with the applicant and Jordison grappling for the firearm.  During this time the rifle discharged at least twice.  Two spent cartridges were later located near the room occupied by Jordison and two more were located alongside the opposite demountable.  Two projectile impacts were also located on an ablution block behind the room occupied by Jordison in such a position as to be consistent with the weapon being fired during the struggle.  Jordison was able to wrest the firearm away from the applicant and subdue him until the police arrived.

3. The applicant’s evidence was that whilst waiting in the carpark, he heard a noise which sounded like footsteps.  He looked around the corner of the demountable and saw the deceased walk past.  He grabbed the rifle.  The deceased continued to walk towards the back of the Inn and through a gate.  He followed her through the gate and grabbed her by the wrist.  He said to her that he wanted to see Jordison.  As he led her back towards the rooms, he asked her what room Jordison was in and she told him.  As he continued to drag her towards Jordison’s room, she was saying, “Peter, please don’t.”.  As he got to the pathway in front of the room, he flung the deceased onto the lawn.  He told her to get Jordison out of the room but she refused.  As he moved to the door, the deceased rushed at him.  He pulled the rifle up and fired a shot into the air.  She stopped and he turned around and flung open the door.  Jordison then leapt out of bed and headed towards the wall and door on the applicant’s right side.  He did not enter the room; nor did he say anything.  Jordison grabbed the rifle by the barrel, forced him back out of the doorway and across the lawned area to the opposite demountable where the struggle then ensued.  At that stage, the deceased was standing still, uninjured.  During the struggle, shots were discharged and the applicant was knocked unconscious.  He denied deliberately shooting the weapon or having any intent to kill or harm either the deceased or Jordison.

   Ground 5 – Transferred Malice

4. This ground complains that there was a miscarriage of justice because the prosecutor, in his closing address, put to the jury an alternative theory going to the applicant’s intent to kill the deceased which had not been opened to the jury, viz. That if the jury thought that, when the applicant fired the weapon which caused the deceased’s death he intended to kill Jordison and not the deceased, the jury could still find the applicant guilty of murder.  The prosecutor first raised this with the learned Trial Judge before he addressed the jury.  Counsel for the applicant objected to the prosecutor being able to raise transferred malice at this stage of the trial.  Her Honour had already given to counsel a draft aide-memoire to the jury in which she had set out the elements of the charges.  There was no reference to transferred malice in that document and it was in the context of discussing that document that the matter was first raised.  After hearing argument, her Honour indicated she was not sure how important it would be to the prosecutor that she resolved that issue before the prosecutor addressed the jury.  The prosecutor indicated that he was content to raise that with the jury and run the risk of an adverse ruling later on.  Senior Counsel for the applicant said he had no objection to this provided that her Honour ultimately ruled in his favour.  The prosecutor then raised that matter with the jury in his address.  He did so by indicating to the jury that “there is an alternative way which her Honour may direct you as to which involves not intending to shoot Debbie but intending to shoot Willie.”.  He went on to say “the Crown case is not that”.  He said:

   “The Crown case is that he deliberately shot Debbie and you should find that because all the evidence goes that way, I suggest.  All the evidence of what was said.  There is this alternative view of what happened which comes from Mr Fittock’s evidence.  He says no, he didn’t try and shoot Debbie he fired over her head.  You are entitled to accept his evidence, if you accept that.  The Crown urges you not to.  What he was doing when (he) shot the bullet at Debbie he was trying to kill her and he did”.

5. When Senior Counsel for the applicant, Mr Ross QC, was called upon to address the jury, there had still been no ruling from her Honour. Mr Ross QC did not, before starting his address, raise that matter again although he did raise another matter.  During his address, he responded to this submission.  At the end of the day, Mr Ross QC had not completed his address.  The following morning in the absence of the jury and before Mr Ross QC recommenced his address, her Honour announced that she had decided that transferred malice should not have been put to the jury. When the jury was brought in, Mr Ross QC resumed his address and informed the jury that her Honour had told counsel that she would be instructing them to disregard the submission of the Crown on transferred malice.  Subsequently her Honour in her summing up, whilst explaining to the jury the mental element of the offence of murder by reference to the aide-memoire she had prepared, told the jury:

   “You will note that I have put it that it is one or two, intending to cause her death or intending to cause grievous harm to her.  You will have heard the Crown make reference – and I, for want of a better term, refer to it as it was expressed to you I think as transferred malice.  I am advising you that the only issue in respect of intent that you need to look at is the two that I have set out on this document.”

   This was clearly a reference to the need for the Crown to prove either an intent to kill the deceased or an intent to cause grievous harm to her.  There are also other passages in the summing up where her Honour told the jury that they had to be satisfied beyond reasonable doubt that the accused intended to kill or cause grievous harm to the deceased.

6. Her Honour provided the jury with the aide-memoire as a guide to assist them with their deliberations. That document went with them into the jury room.  The aide-memoire clearly identified the issue of intent in this matter as relating to an intent to cause the death of the deceased or to cause grievous harm to her.

7. At the time of the address to the jury by her Honour, counsel for the defence requested that her Honour “reconfirm … that murder is only put in the one way.”  Her Honour accepted that suggestion and advised the jury:

   “In respect of – I am only looking at count 1, that is the count of murder of Debbie Batzler.  What I want to say to you is that you heard reference to the term ‘transferred malice’.  I want to re-enforce that that is not a consideration for you.  That in respect of count 1 all you are to consider is as it (is) set out there: whether there was – count (? Point) 4, ‘either intending to cause her death or intending to cause grievous harm to her’.  And the references to ‘transferred malice’ are totally irrelevant for your consideration.”

8. Following the completion of her Honour’s address both counsel indicated that they had “no exceptions” to what had fallen from her Honour.

9. The prosecutor raised the issue of transferred malice in a tentative way.  He said it was not the Crown case but that her Honour may direct the jury as to it.  Defence counsel told the jury that they were “not allowed to look at the case in that way”.  The directions of her Honour were clear and unequivocal.  The jury could not have been left in any doubt that any reference to transferred malice was not relevant to their deliberations.

10. The applicant also submitted that her Honour failed to “clearly disassociate” the “defences” of accident or mistake from “the discredited concept of transferred malice that the jury heard during the addresses.”  It was submitted that there was a “fatal contamination of those propositions or defences”.  The reference to transferred malice was not made in the context of any possible “defence” of mistake or accident.  The direction of her Honour and the aide-memoire clearly identified the nature of the intent that the jury had to find was present if a verdict of guilty was to be entered.  The jury was separately advised that they must be satisfied that the applicant killed Debbie Batzler and that it “could not have been accidental”.  They were told that the shot had to be “deliberately fired”.

11. The issue of transferred malice was clearly withdrawn from the jury by her Honour.  Issues of accident and mistake were separately addressed. There was no miscarriage of justice based upon this ground and no unfairness in the trial process.  Leave to appeal on this ground must be refused.

    Ground 6 – Provocation

12. The applicant complained that the learned Trial Judge erred in failing to direct the jury on the issue of provocation.   Neither the prosecutor nor experienced defence counsel raised the issue of provocation at the time of trial and it appears that neither counsel thought this was a case in which provocation was available.

13. If there was material on which a jury, acting reasonably, could have found manslaughter as a result of provocation then the obligation to raise the issue with the jury rested upon the trial judge.  This is so notwithstanding the failure of counsel to raise the issue: Van Den Hoek v R (1994) 161 CLR 158 at 169. A jury is entitled to infer a loss of self-control even if the particular accused denies that was the case.

14. The issue of provocation was not raised at all during the course of the trial and it would seem it came to light when different counsel conducted a review of the whole of the proceedings some months after the verdict.  The issue seems to have been identified by virtue of a submission in the following terms made to the jury by the prosecutor in the course of his final address:

    “You should accept the Crown view, we submit to you, Peter Fittock set out that night with murder, not love, murder in his heart when he was faced by a woman he loved coming out of that room at that time.  He shot her.  He lost all control and shot her dead and then tried unsuccessfully to do the same to Willie Jordison but he was thwarted in that.”

15. The submission on behalf of the applicant was that it was open to the jury to consider that a woman six months pregnant conducting an affair with a man who is not the father of her unborn child constitutes an act that is wrongful by the ordinary standards of the community.  It was said that it was open to find that this wrongful act so incensed the applicant (who was faced by the victim who was pregnant with his child emerging from the doorway of Mr Jordison’s room after having had sex with Mr Jordison) that he was deprived of the power of self control.

16. However the evidence was that prior to this occasion the applicant was aware that the victim was pregnant with his child and also that she was having an ongoing sexual relationship with Mr Jordison.  Indeed his evidence was that he went there to discuss that very topic.  He went with a firearm in order to intimidate Mr Jordison. Rather than endeavour to locate Mr Jordison he waited because he knew or at least expected that the victim would be going home early in the morning before her children awoke.  It follows that when he went there he was expecting to find the matters that he did in fact find.  He expected to find the victim with Mr Jordison and for the location of Mr Jordison to be identified by her leaving the premises to go home.  There is no suggestion in the evidence that he was deprived of the power of self control when his expectations were fulfilled.  The matters that the applicant now suggests were capable of depriving him of the power of self control were matters of which he had been aware for some time and which he expected to find.  The Crown case was that this was a planned event.  The applicant attended at the premises with a loaded firearm with the safety catch off.  It was ready to fire. He went with “murder in his heart”. On the defence case it was not open to suggest that the death of the victim occurred through provocation.  There was no evidence that he was provoked or that he was surprised to find the deceased there.  He did not act on the sudden.  He had been present with his loaded firearm waiting for the departure of the deceased. There was no evidence to provide a basis for leaving provocation to the jury. 

17. This ground is not made out and leave to appeal on this ground is refused.

    Ground 8 – The Evidence of Robert Jordison

18. Robert William Jordison was a crucial witness for the Crown in these proceedings.  He was the alleged victim in count 2 and he was with the deceased immediately before her death.  He gave evidence that was disputed by the applicant of what was said by the applicant when he was at the door to the bedroom.  That evidence is likely to have been thought significant by the jury.

19. In the course of his evidence Mr Jordison admitted to having lied on a number of occasions in relation to the issue of the paternity of the child being carried by the victim when she died.   He told various people that he was the father of the child and he says that he did so in order to protect the deceased.  He agreed that he gave evidence during the course of the committal proceedings to the effect that he had been told that he was the father of the child and also that he was in fact the father of the child.  He agreed that he did not tell the truth on that occasion.  He agreed that he had lied to the police on this issue.  He said he first told the truth about the matter shortly before the trial commenced.  He had previously lied “because I made a promise to Deb that I’d say it to protect her … I saw it was no good telling lies about it any more because it didn’t matter.”

20. Counsel for the defence invited her Honour to provide the jury with a warning that the evidence of Mr Jordison should not be accepted unless it was corroborated by someone else.  This submission was based upon him having committed “perjury” and the submission was made that “a witness who admits perjury would be in the same class as an accomplice”.  The Crown submitted that a warning of a different kind ought to be given and ultimately her Honour followed the suggestion made by the Crown.  The warning given by her Honour was in the following terms:

    “Now, specific directions on law I am going to give you relate firstly to evidence given by Robert Jordison.  The direction I’m giving you is this: the evidence of Robert Jordison is very significant and because it is of special significance I direct you to carefully scrutinise his evidence and look for support for what he has said in the other evidence. 

    His evidence has been criticised by the defence because he told lies on oath, both in a statement to the police and at the committal.  I have already taken you to that evidence and I will not repeat it again.  Mr Jordison admitted that he committed perjury and you know from his own evidence that he had told lies under oath.  You are entitled to accept or reject his evidence, the same as with any other witness. However, because his evidence is of special significance in the Crown case and because you know he has lied under oath, you should treat his evidence with particular care.  You should scrutinise his evidence carefully, bearing this warning in mind.”

21. That warning followed a summary by her Honour of the evidence of Mr Jordison in which the various versions of the lie told by him were revisited.

22. The submission made on behalf of the applicant was that the warning was manifestly inadequate and/or wrong in law given the serious and significant nature of the evidence of Mr Jordison.  It was pointed out that there was conflict between the applicant and Mr Jordison regarding words spoken or not spoken at the time that the barrel of the weapon entered the room where Mr Jordison had been with the deceased.  It was submitted that a full corroboration warning should have been given to the jury carrying the full imprimatur of the learned Trial Judge’s office, along with an explanation as to what evidence, if any, may amount to corroboration.

23. There are categories of witnesses in relation to whom rules of law and of practice have developed that require that a warning be given of the possible danger of basing a conviction upon the unsupported testimony of a witness within one of those categories. The categories are not closed.  There are other cases where the witness does not fall into any particular category but in which a warning regarding the evidence of the witness should be given. The reasons for giving the warning will vary from case to case. The duty to warn is part of the obligation imposed upon the trial judge to ensure a fair trial and to alert the jury to the dangers of convicting on evidence which is potentially unreliable.  See generally: B v R (1992) 67 ALJR 181 at 190; Bromley v R (1986) 161 CLR 315; Longman v R (1989) 168 CLR 79; Pollitt v R (1992) 66 ALJR 613; s 98 and s 120 of the Criminal Code.

24. The learned Trial Judge was referred to Bromley v R (supra). This Court was also referred to that authority. There Gibbs CJ with whom Mason, Wilson and Dawson JJ agreed said (at 319):

    “What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence.  Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is ‘was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?’.  There is nothing formal or technical about this rule. 

    If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence.  The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so.  There is no particular formula that must be used; the words used must depend on the circumstances of the case.”

1. There is no rule of law or practice that identifies evidence from a person who admits to having lied under oath on another occasion as evidence that must be corroborated or as evidence upon which it is dangerous to convict without corroboration.  The need for a warning, and the nature of that warning must be a matter for assessment in each such case. 

2. In the present case the warning that was given to the jury identified in clear terms the danger of basing a conviction upon the evidence of Mr Jordison.  The warning included an explanation of why the evidence was potentially unreliable. The learned Trial Judge identified the area of concern, she reminded the jury of the evidence and of the importance of the testimony of the witness to the Crown case and then she provided the warning set out above. In our opinion the warning was suitable to the circumstances of the case and no error has been demonstrated.

3. In this case a warning was called for and an appropriate warning was provided to the jury.  This ground of appeal does not succeed and the application for leave is dismissed.

4. Ground 9 of the grounds of appeal was not pursued before the court.

5. The application for leave to appeal is dismissed.

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