Knight v The Queen

[1992] HCATrans 99

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M60 of 1991

B e t w e e n -

PETER GEORGE KNIGHT

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 APRIL 1992, AT 10.18 AM

Copyright in the High Court of Australia

Knight(2) 1 2/4/92

MR D.G. WRAITH: If the Court pleases, I appear for the

appellant. (instructed by A. Crockett, Director

Legal Aid Commission (Victoria))

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR S.M. COOPER, for the Crown.

(instructed by J. Buckley, Solicitor to the

Director of Public Prosecutions (Victoria))

MASON CJ:  Yes, Mr Wraith?

MR WRAITH: If the Court pleases, I intend approaching this

appeal, unless pointed in another direction, in

this way. I would like to deal with the judgments

briefly, first, of the Court of Criminal Appeal to

demonstrate the argument of the appellant and the

errors that are said to have been made by two

members of the court.

Then, if the Court pleases, I would like to

produce - I think it has already been produced for

the Court - the one photograph in the folio of

photographs which shows the gun. Unfortunately,

there is only one copy of the photographs. They

are before the Court, I would understand. It would

make it more meaningful, I would imagine, to the

Court to see the photograph of the gun as it was

recovered.

Then, the Court will have before it a map of the hall and the surrounds. I would briefly like

to direct the Court's attention- to that to make it

meaningful, the submissions I will be making, and

if it is thought necessary, briefly open the

factual situation.	I do not know whether that is
necessary.

MASON CJ: There is a question of law at the heart of all

this, is there not?

MR WRAITH:	Yes.
MASON CJ:	You will be dealing with that at some stage, will

you?

MR WRAITH:	Yes.
MASON CJ:	And could I ask you this: we have a summary of

argument before us, is that the outline of argument

that you are presenting - - -

MR WRAITH:	Yes.
MASON CJ:	- - - on the hearing of the appeal,

notwithstanding the reference to the grant of

special leave at the end?

Knight(2) 2 2/4/92

MR WRAITH:	I am sorry - - -
MASON CJ:	The outline of argument, the last sentence in the

outline of argument submits that "Special Leave to

Appeal ought be allowed".

MR WRAITH: It is simply restating again, and unfortunately

it has gone - - -

MASON CJ: Yes. Anyhow, that is the outline of argument.

MR WRAITH: That is the outline of argument. It has not

differed and it does not differ from what was put

before.

MASON CJ:  Yes. And you will not take too long in outlining

facts and putting us in possession of these

materials?

MR WRAITH:  If the Court had been seized of the facts, I had

not proposed to deal with them in any great detail,

but what I had proposed to do to fortify the

argument was to at least refer to the victim of the

shooting; parts of his evidence to illustrate my

principal submission.

MASON CJ: Yes, very well.

MR WRAITH:  It is submitted that the error of law that has

occurred is that the Court of Criminal Appeal has

not independently assessed the evidence - - -

DAWSON J:	Do you want us to have the photograph and plan with us now?
MR WRAITH:	Yes, it would be of assistance.

DAWSON J: Well you will have to hand it up.

MR WRAITH: There is only one copy.

DAWSON J: And what about the plan?
MR WRAITH:	That also is included in the appeal book at

page 885, but there is a larger copy with the

Court, but, with respect, the smaller plan I would hope adequately depicts the area that the shooting

took place, so that the Court will understand what

is being put.

DAWSON J: Well, do you want the larger plan handed up?

MR WRAITH:	As well, yes.
MR BONGIORNO:	Your Honour, if I could just say so, the

larger plan is being photocopied at the moment.

Knight(2)	2/4/92
MASON CJ: It can be produced when it is available.
MR WRAITH:	Yes.

MASON CJ: Apparently, Mr Bongiorno, has a copy.

MR WRAITH:  But I was hopeful the Court could follow from

the plan in the appeal book itself; it is smaller,

of course, but once it is explained, I hope it is

readily understood. It is this, at page 885.

MR WRAITH:  I do not think anything is to be gained by

having a larger map. If I might explain now, the

kitchen area, which is as the map faces the Court,

is the area where the appellant was shortly prior

to obtaining the firearm which, on any evidenc~, he
brought into the hall, in the sense that he he

brought it into the foyer area and placed it behind

a door in the foyer area. The magazine was in, the

gun was eventually cocked, it was loaded.	The
evidence suggests that he spoke to a girl.

The Court will appreciate, I hope, that there

had been fighting in the hall where some youths had

come in, some 17 to 20 youths had come in and

attacked youths with which the appellant was

aligned, the fight was going on in the sports hall

itself, and the youths that had come in cars, in

numbers, were engaged, or some of them were, in

fighting friends of the applicant.

It was a dancing class. One of the girls had

come to the kitchen door and asked for the

appellant's assistance and he had moved out of the
kitchen, obtained the gun and moved to a position

which is shown in the map as being the entrance to

the hall, and there, as the Court will hear, a shot

was fired in which one victim finally died.

The evidence then is, on any view, that the appellant moved to an area of the hall which is

consistently described as the north-east area of

the hall, where there was yet another group - some

were female - and hiding behind them were some of

the persons who had entered the hall, in

particular, the victim. Now, another two shots -

and I use this word advisedly - were discharged.

BRENNAN J:	How many people were in the sports hall?
MR WRAITH:	I am unable to say with precision.  The invading

party - if I can put it that way - was something
between 17 and 50, and there were a number of other
people who were there for a legitimate purpose,

attending a dance.

Knight(2)	2/4/92
BRENNAN J:	When the appellant entered the sports hall

through the double doors, who was in the sports

hall?

MR WRAITH:  The invading party, whatever number that

precisely was, plus the dancing class.	Members -
one or two, maybe three in particular,	were being
dealt with by the invading party.

BRENNAN J:  Who was out in the foyer, apart from the man who

ultimately died?

MR WRAITH:	I am unable to assist Your Honour precisely but there were others who - there is evidence that
others saw what occurred there, albeit briefly, so
that whether they were in the hall and moved to the foyer is uncertain to my mind, but in any event there were at least those numbers in the hall;
precisely the number in the foyer I am unable to
say.

Having moved to that position and, in the

evidence of the victim Salvo, the victim we are
concerned with, a distance of some 10 yards, two

shots were discharged: one finally discharged into

the area of the victim's groin.	The first shot
missed completely.	The first shot was not the

subject of any charge.

Going back, the first victim eventually died

and the appellant was charged with murder but

convicted of manslaughter. Manslaughter was put by

the learned trial judge in two ways: either

manslaughter reduced by provocation, or
manslaughter by an unlawful and dangerous act. The

charge in respect of the victim Salvo was attempted

murder and it was laid in respect of the second

shot which was discharged.

The weapon had been obtained, or the jury could find had been obtained from another person's

house by the appellant and brought to the hall.

TOOHEY J: What was it, Mr Wraith, semi-automatic?

MR WRAITH:  A 22 automatic, as I understand it. I do not

know whether Your Honours had an opportunity of

seeing it. It had no butt and it had no trigger

guard and the significance of showing the Court

the weapon is that that weapon was found some time

after, days later, in the sea and it had no

trigger guard and it had no butt and the evidence

that I will draw the Court's attention to briefly was that in that condition it would be unsafe and,

if I can interpolate, would have rendered an

accident or a negligent or reckless firing of the

Knight(2) 2/4/92

weapon more likely than a weapon with a trigger

guard.

BRENNAN J: But it was an automatic rifle?

MR WRAITH:  Yes, as I understand it.

BRENNAN J: Well, is that right?

MR WRAITH:	Yes.
BRENNAN J:	So there is no cocking involved?
MR WRAITH:	Well, there was.  I am not an expert on weapons.

The gun was cocked.

BRENNAN J: After the gun was fired, the first time - - -

MR WRAITH: Initially.

BRENNAN J:  - - - did anybody have to do anything to put another bullet into the chamber?

MR WRAITH:  As I understand it, no. I am sorry, it was

cocked initially.

DAWSON J: There was one initial cocking and then it could

be fired.

MR WRAITH: There was the initial cocking, yes, I am sorry.

I am now stating it correctly. But the point that

emerges from all that was there was expert

evidence that the fact that there was no trigger

guard would render it more unsafe. And the

importance of that evidence to the ultimate legal

analysis is this - and my point is very short, if
the Court pleases - that with a weapon in those

circumstances in a struggle situation, which the

whole evidence indicated it was, it was a

situation where both persons, the victim and the

person with the weapon initially, were struggling and struggling each having a hand on the weapon. It is in those circumstances that the jury

were asked to infer that he had the intention to

kill, as distinct from any lesser intention. And I

remind the Court, if I may, that the appellant was

only convicted of manslaughter in relation to the

first incident. It, of course, cannot be said

whether that manslaughter was manslaughter reduced

by provocation or manslaughter as an unlawful or

dangerous act. But nevertheless it was not murder.

So it is at least arguable that on that

occasion the jury were not satisfied of an

intention to kill. They may, of course, have been

because they could have said, "He was provoked

Knight(2) 6 2/4/92

because of the conduct of these people arriving and

so on and threatening and finally assaulting his

friends.

But the point I make is very simple. That being the jury's verdict in relation to that area,

whatever the factual situation was at that point,

it was this, that he moved, albeit a significant

distance, with the weapon pointed, the jury could

so find, in the direction of the victim's stomach,

waving it around, loaded, automatic.

But then there is evidence from all quarters,

which the jury could not avoid coming to the
conclusion, that a struggle had occurred in which
the gun discharged twice in a very short space of
time, that is, the second shot followed the first

shot very quickly. Of course, I remind the Court

in relation to that first shot, no charge was laid.

So it is submitted that although - and of course I adopt to some extent what

Mr Justice Crockett said in the judgment in the

Court of Criminal Appeal - it may have been

possible to infer an intention to kill. I may say

in this Court I do not concede that, but it

nevertheless is impossible in that state of fact,
it is submitted, to exclude recklessly causing

serious injury.

TOOHEY J:  Mr Wraith, what do you mean when you say that no

charge was laid in respect of the first shot? You
cannot tell by looking at the presentment, but are

you saying in opening the Crown's case it was made
clear that no reliance was placed upon the first of

the two shots?

MR WRAITH:  Yes. So you are dealing with the shot that

caused the injury. One is tempted to ask the

question: what is the difference between the two

except in point of time, and that was a very short

space of time that had occurred, in circumstances

where, on all the evidence, a struggle was in
progress. How could you say or how could you
exclude, having regard to the nature of the weapon
and the circumstances of the struggle, that it was
not a reckless discharge of the firearm, that it

was discharged not with an intention to kill, but

just in the course of that struggle.

If I might conveniently come to the point of

law, it was this, that the Court of Criminal Appeal

in their analysis did not conduct an independent

evaluation of those circumstances or, if they did,

they went very wrong, and they went very wrong in

the case of the Chief Justice, because it is

submitted he misdirected himself as to the

Knight(2) 7 2/4/92

appropriate law, which is simply - the question to

be asked by a Court of Criminal Appeal, as I am

sure this Court is aware from the authorities I

have referred to, authorities of this Court,

Morris, Whitehorn, Chamberlain and so on - the

question is whether it is open to the jury to be

satisfied beyond reasonable doubt on the evidence.

DAWSON J:	I take it that recklessness forms no part of attempted murder, does it? You cannot -
MR WRAITH:	No, with respect, attempted murder is quite - a

quite discrete intention has to be proved, an

intention to kill.

DAWSON J:  Why can that not be proved by "reckless

indifference to human life"?	I do not think it
can, but what is the reason?

MR WRAITH:	What is the reason? It can be, of course, in the case of murder, but it has never been suggested
by any authority yet that reckless - - -

DAWSON J: There is authority to the contrary, is there not?

MR WRAITH: There is authority to the contrary, yes.

DAWSON J: What is it?

MR WRAITH:  I will try to recall, but I have proceeded upon

the assumption the law was, at this stage -

certainly this was what His Honour put to the jury:

what the jury was given as the appropriate law to

they had to prove an intention to kill and I may,

in the course of argument later on recall it,

be applied, and it is submitted that what the

Chief Justice said is contrary to what this Court

has said in the various authorities I have referred

to and the passage that is relevant to the

submission is contained at page 913, the second In considering this argument, I am

paragraph:

satisfied that the evidence justified the jury

in finding that the applicant had the intent

to kill. But that is not necessarily an end

of the matter. The argument was in

substance - and it was very carefully

presented by Mr Forrest - that it was equally

open to the jury to find that the Crown had
not excluqed the possibility of the lesser

inference.

In the end I think that such an argument

can only succeed if the appellate court can be

satisfied that the two inferences, one

Knight(2) 8 2/4/92

consistent with guilt, the other consistent

with innocence, are equally open. For an
appellate court, which has not seen the
witnesses or heard the evidence given, to

conclude that two inferences are in those

circumstances equally open must, I think, be a

rare case.

I might add, going on, the Chief Justice says that

he was fortified in taking that view that no

submission was made at the conclusion of the Crown

case inviting the jury to acquit on the particular
count that I am dealing with now. The answer that

I give to that, in anticipation, is that in the

state of the law as it now is - that is the

reference I have given the Court to Doney's case -

it would have been a submission which may have been

inappropriate in that there was perhaps, although I

do not concede it necessarily, but perhaps it was

thought by counsel at the time that there was some

evidence, albeit unsatisfactory, sufficient to go

to the jury.

I hasten to add, although Doney's case was

decided after this matter was decided, the

Attorneys-General Reference No 1 Victoria - which

was contained in Doney's case but which I have not,

unfortunately, referred to in my list of

authorities - in my submission states a very

similar test, or did in Victoria, so that whether

one looks at Doney's case or whether one looks at

the Court of Criminal Appeal authority in Victoria,

with respect to the Chief Justice he does not get

much comfort from that and, in the end, of course,

one is entitled to submit that perhaps counsel
overlooked it in any event.

Be that as it may, the state of the law was

that it would have been a submission which would

have most likely fallen on arid ground.

TOOHEY J:  Mr Wraith, I am just having a bit of trouble as

you move from the first shooting that resulted in

death to the second shooting that resulted in

injury, not death. The appeal to the Court of

Criminal Appeal was against both convictions, was

it not?

MR WRAITH:	Yes.
TOOHEY J:	And what are we concerned with here?
MR WRAITH:	You are simply concerned with the attempted

murder conviction.

TOOHEY J: That is not entirely apparent, is it, in the

grounds of appeal.

Knight(2) 9 2/4/92

MR WRAITH:  I am sorry. I am wrong. The appeal was against

this particular verdict.	I am sorry, I will
restate it.	I have misstated it. There were two
grounds.	One was that there was -

TOOHEY J:  I am sorry, are you speaking now of the Court of

Criminal Appeal?

MR WRAITH:  Yes, I am sorry. The appeal was simply against

this verdict and what it was based on was two

grounds: one was that there had been the reception

of inadmissible evidence, prejudicial evidence, and

that ground failed and that is not pursued here,

but what is pursued - - -

TOOHEY J:  I am sorry, I do not want to interrupt you unduly

but I am trying to tie that in with what Justice

Nathan said in delivering the first judgment at

page 898. He says, at about line 18:

It is from these convictions the applicant

appeals.

MR WRAITH:  It has been my understanding from the beginning

that it was only against the conviction.

TOOHEY J:	The attempted murder conviction?
MR WRAITH:	Yes, and the first ground related to - I have

always assumed that, and maybe I am wrong, but the

first ground was dealing with the question of

prejudicial evidence, the admissibility of it.

TOOHEY J: At any rate, whatever was before the Court of

Criminal Appeal, and notwithstanding that the

appeal to this Court is expressed to be from the

whole of that judgment, is it the position that we

are concerned only with the conviction for

attempted murder?

MR WRAITH:  Yes.

MASON CJ:  It is clear enough that the notice of application

for leave to appeal to the Court of Criminal Appeal

related to both convictions, did it not? I mean,

that is a matter of history now but you have made

it clear that, as far as this appeal is concerned,

you are only concerned with the conviction for

attempted murder.

MR WRAITH:  Yes, and, indeed, I was at the application for

special leave.

MASON CJ: Yes.

MR WRAITH:  I was just trying to be accurate in relation - I

had forgotten, or put out of my mind, what

Knight(2) 10 2/4/92

precisely had occurred in relation to the

manslaughter conviction, but I thought that the

only conviction under appeal was the attempted

murder and it contained two grounds essentially:

one was the reception of inadmissible and

prejudicial evidence.

TOOHEY J: With which we are not concerned.

MR WRAITH:  Not concerned. You are simply concerned with

this one conviction and the fact that it is argued

that the Court of Criminal Appeal did not properly

embark upon its task of assessing the evidence

independently, both its quality and quantity, and,

indeed, in the case of the Chief Justice, he

misdirected himself when he came to finally decide

the question of whether it was unsafe and

unsatisfactory, and that in the end the only member

of the court that approached the matter correctly

was Mr Justice Crockett who, applying the

appropriate law assessing the evidence, came to the
conclusion that there were other inferences open
and that the most likely inference that could not

be shut out was recklessly causing serious injury.

TOOHEY J: Are you saying, Mr Wraith, that the majority

erred in law in the sense that they brought wrong
principles of law to bear, or that they were wrong

in law only in the sense that they failed to carry

out an independent assessment of the evidence?

MR WRAITH:  I say, in relation to Mr Justice Nathan, that he

made an inadequate assessment of the evidence and

came to wrong conclusion; in relation to the

Chief Justice, he was moved by an incorrect

perception of the law, and so the majority, for

those reasons, got it wrong, and that the proper

approach, the commendable approach, was that by

Mr Justice Crockett, who both applied the correct

law and assessed the evidence and came to the

proper conclusion. I am afraid my argument is as

simple as that. ·

GAUDRON J:  And your argument is that a verdict on this

evidence could never be properly obtained; that a

jury must always entertain a reasonable doubt on

this evidence.

MR WRAITH:  Yes.

GAUDRON J: Well now, for my part, I have some difficulty

with that. I can well see why you might say a jury

should be instructed that they would only find such

an intention if they excluded recklessness as a

reasonable hypothesis, which would not result in

the situation for which you presently contend.	Why
is it that it is not ultimately a jury question,

Knight(2) 11 2/4/92

whether another hypothesis is excluded as a

reasonable possibility, in a situation such as

this?

MR WRAITH:  Well then, I suppose the answer is this: there

must be cases, and maybe they are rare, where this

state of fact is reached by an appellate tribunal,

analysing, as it should, the facts.

GAUDRON J: Well, one can accept all that, but what is it

about this case that makes it such that it is not

for the jury to decide?

MR WRAITH: Well, it is for the jury to decide, but they

have got it wrong. That is the essence of unsafe

and unsatisfactory.

GAUDRON J: All right, yes, well of course, but there are

two bases. Why is it that there could never be a

safe and satisfactory verdict on this evidence;

what is it about the evidence?

MR WRAITH:	The only way I could answer your question is this, that on a proper analysis of the evidence you
could never shut out recklessly causing serious
injury.  My proposition is as simple as that and it
is contained, if I might again say it, in the judgment of Mr Justice Crockett because - - -

GAUDRON J: But what if the jury came to the view that there

had been a longstanding feud, there was.

MR WRAITH:  Not necessarily a longstanding feud between the victim and the -

GAUDRON J: Yes, and that the first shot was, perhaps,

accidental but he really did intend to fire that.

The evidence would permit that inference being

drawn, would it not?

MR WRAITH: That is not the stated fact here, if Your Honour

pleases, because the first shot that was fired,

which brought about death, was not fired arguably

with an intention to kill.

GAUDRON J:  No, but it may have been.

MR WRAITH: It may have been. It was, of course, a separate

incident.	You then have quite discrete evidence in
relation to what happened thereafter.	I mean by

that, in every case the witnesses talk of a

struggle between the victim and the appellant.

DAWSON J: During the course of which one shot is fired.

MR WRAITH:  I was about to crystallize that, yes.

Knight(2) 12 2/4/92

DAWSON J:  And that shot, obviously, the prosecution took

the view, may have been an accident.	Why did he
not drop the gun?	Why could not the jury conclude

that if he did not he must have intended to fire

the second shot. He knew by then that this was

something which was likely to occur in the

situation in which he found himself. And by so

doing exclude the hypothesis that the second shot

was accidental.

MR WRAITH:  Because it is a struggle and this is my point, I

stand or fall on this. It is a struggle - - -

DAWSON J: But he was the one holding the gun, he could drop

it.

MR WRAITH:  He was not holding - he had one end of the gun.

DAWSON J: Yes. Well, if he dropped his end, which was the

trigger end, it would not have happened.

MR WRAITH: That is one analysis.

DAWSON J:  He did not, having learnt that the struggle had

produced the first shot.

MR WRAITH:  The only answer to that question is this, that

it happened very shortly after the first shot was

discharged.

DAWSON J: But there was an interval of time between the two

shots?

MR WRAITH:  Yes, but a short interval of time, in the course

of a struggle and it is the emphasis - I am, of course, concentrating on the fact that it was a

struggle in which both had some physical possession

of the weapon. It was not a case, as was the first
instance - there was a suggestion by the appellant

that the other victim had grabbed the gun but there

was other evidence that that had not occurred.

But, be that as it may, there is no evidence

that the appellant said anything as he approached

which would indicate that he intended to do

something serious. His explanation for having the

gun in the hall was, in his record of interview,

and in his unsworn evidence, that he was trying to

get them out of the hall. I accept that that could

have been rejected by the jury to some extent, but could it in a situation where there is a struggle?

BRENNAN J:  Mr Wraith, before the jury, Mr Salvo indicated

what happened in the struggle, did he not?

MR WRAITH:  He did, and I was going to take the Court if

necessary to that, yes.

Knight(2)	13	2/4/92
BRENNAN J:	You cannot take the Court precisely to it.	You

can take us to the words;	you cannot take us to
the actions.

MR WRAITH:  Yes.

BRENNAN J: But the jury saw the actions.

MR WRAITH:  The jury saw the demonstration.

BRENNAN J: That is right.

MR WRAITH: That is always a difficulty, of course.

BRENNAN J: Perhaps a substantial one.

MR WRAITH:  But to use an unfortunate word, it is not a

fatal difficulty, because it is never suggested -

and I do not make much of this - the weapon was

pointed anywhere else but at the stomach, at worst,

of the victim.

BRENNAN J:  What it all comes to is whether or not the jury

were entitled to find beyond reasonable doubt that

the accused discharged the shot intending to kill.

Your argument is that they could not do that

because an innocent hypothesis, namely

recklessness, was reasonably open. If, on a proper

review of the evidence, the Court of Criminal

Appeal could properly come to the conclusion that
it was not reasonably open, that is the end of your

case. If, on the other hand, it is reasonably

open, then you succeed. It is as simple as that,

is it not?

MR WRAITH:  Yes. I have never suggested the argument was

any more difficult.

BRENNAN J: Is there anything to point to the relevant

circumstances, apart from the fact that the accused

discharged the shot into Battaglia's body outside,	came into the hall, pursued Salvo in the words	struggle with respect to the gun in the manner in
which Salvo described it?

which Salvo described, and then engaged in the

MR WRAITH: 

No, I agree that is the proper analysis of the

matter, with one exception of course: the
objective evidence that the gun was an unsafe
weapon in the sense described by the firearms
expert.

BRENNAN J: With a 5.25 pounds weight to discharge the

trigger?

MR WRAITH:  Yes.

Knight(2) 14 2/4/92

BRENNAN J: There is nothing in the confessional material to

assist in this respect?

MR WRAITH:  I suppose there is in this sense, that an

explanation was given along the lines that I have

been developing to the Court, that both incidents

were accidental shootings and that his intention
was to get the marauding party out of the hall. It

was not an intention to do serious harm, it was not

an intention to kill, and so on.

BRENNAN J: Is there any complaint made about the direction

that the trial judge gave to the jury with respect

to the drawing of the inference?

MR WRAITH:  No, it was an unexceptional direction. It

perhaps could have been more pointed, but the jury

certainly were told how to deal with inferences in

unexceptional terms, yes.

GAUDRON J:  Where is that?

MR WRAITH: That is in His Honour's charge which commences

at page 676, and following. I think on more than

one occasion he repeated this direction, but this

was the first. But what His Honour did not do at

any point was specifically refer, as I have done to

this Court, opposing views one could take of the

evidence. It is true, he, in the end of course, as

he was bound to do, analysed the evidence from the

Crown point of view and from the defence point of

view, referred to the unsworn evidence of the

appellant and also referred to the record of

interview. But nowhere in his charge did he

specifically direct the jury's attention to

alternative hypotheses that they may find were

open.

DAWSON J:  He did not direct the jury that they must exclude

any - -

MR WRAITH:	Oh yes, he did that.
DAWSON J:	Where did he do that?

MASON CJ: Not at 676.

MR WRAITH:  However, in a criminal trial such as this

because of the requirement that the Crown must
prove its case beyond reasonable doubt, you

should be careful about the inferences you

draw and, in particular, before you draw

inferences as to the existence of any elements

of a crime charged, you must be satisfied as

to the facts upon which you intend to base

that inference and you must be satisfied that

Knight(2) 15 2/4/92

the inference is the only reasonable inference

to be drawn from those facts. If there was

another inference or inferences reasonably

open on the facts as you find them, you should

not draw the inference in a manner adverse to

the accused.

What I say is, that is unexceptional but, perhaps

in the circumstances that I am now in, it could

have been at some later point elaborated on in the

factual setting that presented itself here.

TOOHEY J: But are you saying, Mr Wraith, that the trial

judge did not go on to apply that general statement

of principle to the facts of the case?

MR WRAITH:  To the facts as it related specifically to this

charge and point to the jury to the various

competing hypotheses that are open or may have been

open, no.

TOOHEY J: Is it suggested that he ought to have - I mean

suggested at the end of the direction?

MR WRAITH:  No. I come here with that disability, that that

was neither done by the learned trial judge and no

such direction was sought.

TOOHEY J: 

Can you tell us, or point us, specifically to the

passage, if there is one, in which the trial judge
told the jury how they should approach the question
of attempted murder?

MR WRAITH: 

His Honour, at page 707, defined the elements of attempted murder, he having already defined murder,

and he said, in the middle of the paragraph:

It is not sufficient on this count -

this is the count we are are concerned with

cause grievous bodily harm, it must be an	if the Crown simply prove an intention to	intention to kill, and that intention must be
proved to exist in the mind of the accused
when the relevant act is done.

And then His Honour defined an "attempt".

His Honour goes on, at page 708:

Further, on this count the Crown must

prove that the accused performed the relevant

act, in this case, the discharge of the weapon

into Salvo's body, as a result of a conscious,

voluntary and deliberate act on his part, and

finally, on this count, the Crown must prove

Knight(2) 16 2/4/92

that the accused was not acting in self

defence.

And then he goes on - incidentally, I should point

out to the Court that in relation to this count he left provocation, which is not the law any more in

Victoria; he then went out to point out that

provocation was a defence.

TOOHEY J:  Had accident been raised by counsel for the

defence in his address to the jury?

MR WRAITH:	Yes, as I understand it.
TOOHEY J:	And did the trial judge deal with the question of accident in relation to this charge?
MR WRAITH:	I do not recall any specific direction in that

regard in relation to this charge, no. He

certainly seems to deal with it at page 714 in

relation to "intentionally causing serious injury":

the Crown must prove that the accused caused

the serious injury to Salvo intentionally,

that is, otherwise than by accident,

misjudgment or inadvertence.

TOOHEY J: But from what you say there was no attempt to

apply that to the facts of the case.

MR WRAITH: Subjecto to correction, to this particular

aspect, no.

TOOHEY J: Well, not so much this particular aspect but to

this particular charge.

MR WRAITH:  Yes, this particular charge. Subject to later

correction, that is the position.	So those were
the directions His Honour gave.	Would the Court be

assisted if I referred briefly to two areas of

MASON CJ: Is Salvo's evidence insufficiently set out in the	evidence: Salvo's evidence relating to this incident and the gun expert, or is the Court -	judgment of Mr Justice Nathan?
MR WRAITH:	It is not completely set out.	So long as the

Court is aware that he says no more than that this appellant approached him, and he was moving and he seemed to be following him, and he had the gun

pointed at his stomach, and that he grabbed the

barrel of the gun and the appellant had the

remainder and that it moved and then a shot was

fired and then another shot was fired. I have no

objection to the Court having that impression of

fact, but he certainly describes it in those terms,

Knight(2) 17 2/4/92

but there is, of course, more than is set out in

the judgment.

MASON CJ: True, but the additional material that you have

in mind, does it in any way alter the impression

that is created in the mind by reading the passages

that are set out in Mr Justice Nathan's judgment?

MR WRAITH: It emphasizes, in my submission, the fact that

it was a genuine struggle for the gun.

MASON CJ:	You had better give us the page reference.
MR WRAITH:	The reference to Salvo's evidence, complete

references, his evidence in-chief, right through to

re-examination, is contained in page 294 to

page 325; the examination in-chief, commences at

page 294 through to page 305.

MASON CJ:  Now, can you take us to the passage in the

evidence that you say emphasizes his struggle.

MR WRAITH: It is at page 297. This is talking about his

observation of Knight, this is in the middle of the

page:

Could you tell where they came from?---From

around the foyer area, right, and then

everyone just started panicking and screaming

and yelling out "He's got a gun, he's got a

gun" and everyone started dispersing

everywhere trying to get out.

Had all the fight stopped at that stage?---Oh,

yeah.

What did you do?---Panicked myself. But I was

furthest sort of away and he come - sort of

blocked my escape.

You say he came in, who was that?---Peter

Knight.

Well, when you first say him, where was he?---

As you walk through the foyer, right, he ran

in, right, and he was standing sort of in

front of the foyer doors, inside, sort of, in the middle of the, sort of, hall. Just a bit close to the doors, you know.

What was he doing at that stage?---Waving the

gun around.

After he had gone into the hall, did he stop

or keep moving?---! was side stepping, you

know.

Knight(2) 18 2/4/92

Did you see the gun?---Yes.

How was he holding the gun?---Waist high like

that (demonstrating).

Did he appear to be pointing the gun in any

particular direction?---

And this is important, in my submission.

No, he was just making sure who was around, I

suppose.

What happened next?---Well, I think he must

have seen me.

What makes you think that?---Well, he turned

around, looked towards me and come towards me.

Yes. How far away was he from you when he

started to come towards you?---I think it was

about approximately - about 10 metres.

Once he started to come toward you, what did

you do? Did you stay where you were?---I

tried to move - tried to move to the side and

that, right, but he sort of come toward me and

I just waited till we got closer and grabbed

the gun with me right hand.

Let me stop you there. You told us when he

first started to come towards you he was about 10 metres away and that you tried to go to the

side?---Yes.

When you went to the side, did he move to the

side as well?---Yes, sort of, you know. If I

moved, he moved toward me, sort of, thing.

As he was coming towards you, where was the

gun pointing to?---To me stomach, sort of

thing.

Did he say anything as he was coming towards

you?---No.

Were there other people in the corner with out that time?---No - I was sort of furtherest

away, there was more people - if you, sort of,

stand here, there was more people over to that

side (indicating) there.

What, in another corner?---Oh, like another wall. And I was, sort of, stuck - well,

exactly like this, sort of thing, and I was,

Knight(2) 19 2/4/92

sort of, towards here and they were towards

over there (indicating).

What pace did he come towards you from this
10 metres?---Pretty quick, yes.

Having tried to move to one side and finding he was still coming at you, what did you

do?---It was so quick I just - I tried to move

away and as soon as he got close enough I

grabbed the gun.

At the time you grabbed the gun where was it

pointing?---Towards the stomach and I pulled

it away.

When you pulled the gun away, was that movement resisted?---Yes.

How was it resisted?---Well, strength.

You were trying to pull the gun away from your

body?---Yes.

In what direction was this movement being

resisted? Where was the person holding the

gun - - -?---he was pointing it towards me

like that, right, and I tried to pull it

towards that way (demonstrate) so it wouldn't
shoot me.

When you did that, what did he do?---A shot went off, right, and we were struggling and he

was trying to point the gun toward me again

and then - - -

What were you trying to do?---I was trying to

keep it away from me and I was just

struggling, just - and it continued toward me

again so I pulled it down, and that's when the

next shot went off.

You told us that when the first shot went off,

you pushed the gun to one side and he was

trying to get it back?---Yes.

How long after you had pushed it to the side

did it shoot off? Any appreciable delay

between you pushing it to the side and the

shot going off? -

and this is important -

---It happened so quick, you know, would have

been a split second or something.

Knight(2) 20 2/4/92

Split second; when the gun got back on to you

and you managed to push it down, how long

after - - -?---In between that, right,

he - after I pushed it away, he head butted me

and I punched him and then it must have been

when it come toward me and I pulled it down.

At the time the gun was brought back to your

stomach, were you still trying to keep it away

from you?---Yes.

When it came back to your stomach, what did

you do again?---Tried to push it down.

How long after pushing it down, did the shot

go off?---Virtually straight away, a split

second - we are only talking seconds, like.

I should remind the Court that in between the two

shots there was a head butting by my client and a

striking by Salvo of my client which may tend to

suggest, in my submission, that in those

circumstances it was not an intention to kill if

that took place after one shot was fired, but I

appreciate that might be equivocal.

That is the more complete picture of Salvo's

evidence, and there is other evidence, I should say

immediately, which supports the proposition that it

was a struggle of that kind.

TOOHEY J:  Mr Wraith, one of the matters that seemed to have

influenced Justice Crockett, and this appears at

page 917 about line 4, is that:

When the second shot was fired, the rifle had not been brought back by the applicant to a

position where it could be fired, one would

have thought, so as to cause death.

It is not clear what he means by that.	The
appellant had not been carrying the gun at shoulder
height, had he?	He had been carrying it at waist
height.

MR WRAITH:	Yes.
TOOHEY J:	What do you understand Justice Crockett meant by

that? It could be that the rifle was pointing

down -

MR WRAITH: In a downward direction.

TOOHEY J:  - - - and had not been brought back to a

horizontal position, or something else?

Knight(2) 21 2/4/92

MR WRAITH:  Yes, and not pointing at the heart or the head.

I think I could put it that way.

GAUDRON J:  I would have thought if it were pointing to the

stomach, that would be sufficient to kill with a 22

automatic.

MR WRAITH:  I must say I find difficulty in quarrelling with

that proposition, but it is in the context - I keep

repeating this word - that His Honour does say that

it is in the context of a struggle that this

occurred.

DAWSON J: But it was pointing downwards. It hit the man in

the testicle, did it not?

MR WRAITH:  It hit the man in the testicle, yes.

DAWSON J: It is not the ideal position - - -

GAUDRON J: But the evidence was that the victim had pulled

it down, pushed it down, but that the appellant had

been pointing it towards his stomach.

MR WRAITH: Initially, yes.

GAUDRON J:  Not only initially; he pulled it back into the

position where it was pointing towards his stomach.

MR WRAITH:  Into that position, but then the gun discharged.

DAWSON J: All that His Honour could have meant was that he

had not got it into the position he desired to get

it into, apparently.

MR WRAITH: Effect his purpose, whatever that purpose might

have been. There are other witnesses I could take

the Court to if the Court desires me to, which were

in this group where the victim was at some point,

were in the vicinity. As I have said, the only

other witness, of course, which loomed large in the

decision of Mr Justice Crockett was Pringle, who,

at page 558 and particularly at page 572, speaks of

the absence of a trigger guard.

TOOHEY J:	But did your client say that he did not have his finger on the trigger?
MR WRAITH:	Yes, in the record of interview and in his

unsworn evidence.	He never suggested that he fired
the gun.

TOOHEY J: That is not quite the way in which I put it to

you.

MR WRAITH:  I am sorry, that he had his finger on the

trigger? No.

Knight(2) 22 4/2/92

TOOHEY J:  Did he say he did not have his finger on the

trigger?

MR WRAITH: Subject to correction, I think he said in the interview that he did not know. Question 122 in the interview:

Did you have your finger on the trigger when

this person grabbed the barrel?

I don't know, I don't know where I had my

hand.

TOOHEY J: With the absence of the trigger guard, this is

particularly significant if the accused had his

finger on the trigger. It might be significant in

other circumstances.

MR WRAITH: That, I think, is the evidence. There was no

evidence that on either occasion, but particularly

on this occasion, he had his finger on the trigger

guard, either from an external source or from his

evidence or from the record of interview. But

would it not be equally open to the proposition

that if there was no trigger guard, it rendered an

accident more probable in the struggle?	I keep
coming back to this.	He may have had it near to

the trigger, and by - - -

TOOHEY J: But you are not really putting it in terms of

accident, are you? This is what - - -

MR WRAITH: 

I am putting it in terms of gross negligence or

recklessness as its description, rather than
anything else, as being the most likely finding

that anybody could make on this evidence. It is a

case of recklessness, but not one of intention, and
the passage in the expert's evidence at 572, if I

could just read very briefly some extracts on that

page:

would you agree that with a Sterling 22 self

loading gun that the trigger guard of that

rifle is attached to the wooden stock?---It

is, yes.

So that if the wooden stock is missing from the rifle, as it is in this case, the trigger

guard is missing in this case and is a

necessity?---Yes.

Well, from your own general experience, not to

have a trigger guard, would you consider that

to be unsafe?---It is unsafe, yes.

So that in that condition if two people were

struggling over the gun then it would be

consistent to have an accidental discharge -

Knight(2) 23 2/4/92

To answer more precisely, Mr Justice Toohey, so the

expert is saying:

So that in the condition if two people were

struggling over the gun then it would be

consistent to have an accidental discharge of

the gun?

And that is really what I am saying here and,

indeed, that is the appellant's case.	How can you
exclude that?	He was then asked:

Well, Mr Pringle, can you tell us what the

role of the trigger guard is in relation to a

self loading rifle?---The trigger guard on any

firearm is to protect the trigger from any

unintentional discharge.

So that without it, you can have an

unintentional discharge?---Without it the

trigger is exposed and may be caught on

anything and so you can have an unintentional

discharge.

HIS HONOUR: Absence of the trigger guard

increases the likelihood of an accidental

discharge?

BRENNAN J: Perhaps it did not require expert evidence to

make that obvious.

MR WRAITH:  No, but in the circumstances where there was no

positive evidence that the appellant did have his

finger on the trigger at the relevant time, that is
important evidence for the jury to consider when
they have the problem of deciding whether there

was, at the particular time the weapon was fired, an intention to kill, as distinct from the other

hypothesis.

TOOHEY J:  Mr Wraith, as you explained it to us a while ago,

with the exception of the complaint about

inadmissible evidence that is not before us now,
the Court of Criminal Appeal was asked to set aside

the conviction by reason only of the unsafeness or

unsatisfactoriness of the verdict, is that right?

MR WRAITH: That is so.

TOOHEY J: There is no complaint made fore the Court of

Criminal Appeal about the tri - judge's direction

to the jury?

MR WRAITH:  No, it was simply an attack upon the verdict

being unsafe in the circumstances.

Knight(2) 24 2/4/92

TOOHEY J: So, are we then entitled to proceed on the basis

that no complaint is still made about the direction
to the jury; the only argument being whether, in

the circumstances, the verdict was unsafe or

unsatisfactory?

MR WRAITH: That is right, and in that process it is said

the Court of Criminal Appeal did not carry out its

legal obligation as set out by the authorities that

I have referred to.

TOOHEY J: Yes, I understand that. The complaint is not

that the trial judge did not carry out his

obligations, it is that Court of Criminal Appeal

did not carry out theirs.

MR WRAITH:  Yes, that the jury went wrong and the error

remains uncorrected because one member of the court

stated the conclusion wrongly, having made some

assessment of the facts, that is Mr Justice Nathan.

He just said, there was no other intention - I want

to draw the Court's attention - open than an

intention to kill. That was his finding in the end

and the Chief Justice misstated the principle to be

applied in a case where a Court of Criminal Appeal
is seized with an attack upon a verdict as being
unsafe and unsatisfactory. And in the end, of

course, I am relying heavily upon the analysis of

Mr Justice Crockett.

GAUDRON J:  Do you have to say, to support that stand, that

the possibility of discharge in a struggle without

an intention to cause death could never be

excluded, or do you have to say, was open, to reach

the position for which you now contend? Because I

just do not understand how you put the argument

relating to inferences.

MR WRAITH:  I say, in this particular case, there was no

other hypothesis open but that it was a reckless

discharge of a firearm. That is putting it at its

highest.

GAUDRON J: But that ignores, does it not, the evidence of

looking around, moving the gun back towards the

stomach?

MR WRAITH:  I suppose it is a subjective matter, but it is

submitted that that alone would not furnish

evidence sufficient.

GAUDRON J: Yes, it may be that that alone would not furnish

evidence sufficient, but you are saying, in effect,

then, that no inference as to an intention to cause

death was open.

MR WRAITH:  From that alone and that - - -

Knight(2) 25 2/4/92

GAUDRON J: No, not from that alone, on the evidence. Are

you saying that?

MR WRAITH:  I am saying that as my first submission, yes.

GAUDRON J: All right. Now, what is your second submission?

MR WRAITH:  The second submission is that there may have

been a scintilla - I do not concede this - but that

it would be dangerous for a jury to conclude that

that was the intention in the light of the whole of the circumstances and that the competing hypothesis

that I have referred to is recklessness.

GAUDRON J: Because that competing hypothesis - what? - was

open, or could not be excluded?

MR WRAITH:	Could not be excluded.
DAWSON J:	By a reasonable jury?
MR WRAITH:	By a jury acting reasonably on this evidence.
BRENNAN J:	What was the comparative size of Salvo and the

accused?

MR WRAITH:	I am sorry, I cannot answer that.
BRENNAN J:	I am not surprised that you cannot. Neither

could the Court of Criminal Appeal.

MR WRAITH:  I do not know whether any photograph indicates

Salvo's size. I think there may :ve been - no,

there is not a photo of Salvo, I .~J not think.

BRENNAN J: So, again, the jury saw the comparative size,

the jury saw the demonstration, nobody else did.

It makes it hard, Mr Wraith.

MR WRAITH: Well, I know what Your Honour is saying but,

nevertheless, they saw all of that but, it is

submitted equally forcefully, having seen all that

they could not come to the conclusion they did in

the circumstances.	One cannot just isolate one
facet of the evidence, I agree.	One has to look at

the totality and here, of course, I have to accept that the jury could have taken the view that there

was some hostility existing between the group to

which Salvo belonged and the appellant's group, but

it does not alter the circumstances that prevailed

in relation to that discrete action or actions. I

simply say, why is it that His Honour Mr Justice -

the way to do it, in the submission of the

appellant, is to say, "Why must Mr Justice Nathan

have come to the conclusion that he did?"	Namely,
in the end, at page 908:

Knight(2) 26 2/4/92

In my view there was more than a mere

sufficiency of evidence upon which the jury

could have concluded guilt. In my view of the

evidence, no inference other than guilt was

reasonably open to them.

I submit to this Court, I know it is a question of

fact and I come here with some temerity in

submitting this, but nevertheless it is submitted

in answer to His Honour how he could have come to

that conclusion.

TOOHEY J: His Honour goes on to explain how he came to it,

was laying considerable stress on the apparent

singling out of Salvo and the appellant's - what

His Honour describes, pursuit of Salvo across the

hall.

MR WRAITH:  They are unfortunate adjectives - - -

TOOHEY J: They may well be but you asked, apparently not

rhetorically, what prompted Justice Nathan to reach

the conclusion that he did. These are the matters,

as I understand it, the so-called pursuit, the

bringing of the rifle into close proximity of the rifle into a position from which the firing of the second shot was likely to cause death.

MR WRAITH:  Yes. What I think I did say, initially, was

that Mr Justice Nathan had - I did not use these

words, but he had got it wrong, that he had

overstated it, is what I am saying - - -

TOOHEY J: That may be.

MR WRAITH:  - - - the effect of the evidence to come to the conclusion he did. And, indeed, it is not

insignificant that - my submission being that the Chief Justice misdirected himself. He did at one point in his judgment confess to some difficult in

this particular case but then nevertheless

misdirecting himself, as it is submitted, he found

that it was not unsafe.

DAWSON J: Assuming that the killing, the first instance,

was manslaughter by reason of an unlawful and

dangerous act, there would be an inconsistency,

would there not, between the two?

MR WRAITH: Obviously, and I am bound to say, of course,

that we do not know on what basis. But His Honour

did say - Mr Justice Nathan did seem to assume that

it could well have been based upon provocation.

DAWSON J:  And yet provocation was left in relation to both charges.

Knight(2) 27 2/4/92

MR WRAITH:  Yes, it was.

BRENNAN J: If one looks at the record of interview, one

finds also an account from questions 150 onwards

which the jury may have regarded, may they not, as

having conveyed a consciousness of guilt?

MR WRAITH:  I concede that from at least two areas the

jury

DAWSON J: But you say he was guilty of something anyway and

he knew it?

MR WRAITH:	I am sorry, I had not dealt with that aspect, but the short answer to Your Honour is, of course,
he by then knew that he was in hot water, that two
persons had been affected by whatever he did in
that hall and could the false denial be used in any
other way than that?  Does it necessarily point -
Does it unequivocally point to an intention to
kill?

BRENNAN J: That is not quite the question, is it? The

question is whether that, in the light of all the

other evidence, is sufficient to exclude beyond

reasonable doubt the innocent hypothesis?

MR WRAITH:	No, that could never do that, because in the circumstances in which they were uttered - and
there were more than one such denials and there was
a disposal of the gun; there was an attempt to
change his appearance - they could never be used,
in these circumstances, in any other way than
suggesting that he was aware that he had done
something, but it did not, in my submission, go as
far as giving credence to the circumstances, that
he had an intention to kill.  It could never do
that.

BRENNAN J:  No. It only indicates that he was in hot water

and he knew that.

MR WRAITH: That he knew that, yes.

BRENNAN J: Yes.

MR WRAITH:  And one could readily understand that. Unless

there are any particular matters of fact, the

submission of the appellant is that this particular

jury, acting reasonably, must have entertained a

reasonable doubt. If the Court pleases.

MASON CJ: Yes, thank you Mr Wraith. Yes, Mr Bongiorno.

MR BONGIORNO: If the Court pleases, might I commence

Your Honours, by dealing with one question of fact

which, in our submission, Mr Justice Crockett dealt

Knight(2) 28 2/4/92

with quite incorrectly and, indeed, my learned
friend has fallen into exactly the same trap.

There is no evidence that this gun did not have a trigger guard at the time the event occurred. In

fact, the evidence points the other way. Whilst

there is no direct evidence that it did have one,
the evidence that is available suggests the

contrary. The matters of fact which go to that are

contained in the evidence of the expert and the

evidence of the person who drove the accused to the

beach at Werribee to dispose of the gun in two

parts, the stock and the gun which is pictured in

photograph 52, which is in the bundle of

photographs.

Now, at no stage throughout this case was the

gun ever described by anybody, the accused in his

record of interview or anybody else, as being a

part gun or an incomplete gun, until it was
produced by the police after a search, and if the

Court - - -

TOOHEY J: Excuse me, are you applying that to the stock as

well?

MR BONGIORNO:	Yes.
TOOHEY J:	The stock is attached to the guard, is it not?

If you remove the stock, you remove the guard.

MR BONGIORNO:  Yes, you remove the guard, and that is the

point I am making. The facts that occurred were

that after the shooting, one Taylor, whose evidence

I will take the Court to in a moment, took the

accused to the Werribee South beach - Werribee

South is about six or eight kilometres, on

Port Philip Bay, away from Werribee itself. There,

part of the gun was disposed of by throwing it over

a cliff and the part that is photographed in

photograph 52 was thrown off the end of a pier.

Now, the expert describes, at the passage that

my learned friend referred the Court to, what the

part that was thrown over the cliff does, and the

part that was thrown over the cliff contains the

trigger guard. And that is encapsulating it and I

can give the Court the references to the evidence,

but whilst it is true that nowhere throughout this

case does anyone say the gun did have a trigger

guard, the only inference open, in our submission,

is that it did at all material times and the only

time it lost its trigger guard was when the accused dismantled it for the purpose of disposing of it in

two separate places.

BRENNAN J: Nothing in Walsh's evidence about that?

Knight(2)	29	2/4/92
MR BONGIORNO:	Not so far as I am aware, Your Honour.	My

friend says that in Scarpaci's evidence at 512

there is something.	Yes, I have to concede that,
Your Honours.	My search of the evidence had not

turned up that question:

it looked like a 22 rifle, but it appeared not

could have been a delay of a couple of seconds

between the time the gun went forward and the time

it was actually discharged.

And, finally, there is no direct evidence -

indeed, it is submitted, no evidence that the

accused knew he had caused any injury to the first

victim, Battaglia. In fact, he claims, in the
record of interview, in his unsworn evidence, he

did not know. If the Court pleases.

MASON CJ: Thank you. The Court will consider its decision

in this matter and will adjourn until 10.15 am

tomorrow.

AT 12.45 PM THE MATTER WAS ADJOURNED SINE DIE

Knight(2) 60 2/4/92