La Fontaine v The Queen

[1976] HCA 52

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Jacobs JJ.

LA FONTAINE v. THE QUEEN

(1976) 136 CLR 62

8 October 1976

Criminal Law

Criminal Law—Murder—Malice aforethought—Recklessness—Knowledge that death or grievous bodily harm will probably result from act—Direction as to murder by recklessness—Whether appropriate—Whether sufficient—Likelihood of death or grievous bodily harm ensuing—Probability—Possibility—Standard of proof—Guilt beyond reasonable doubt.

Decisions

October 8.
The following written judgments were delivered: -
BARWICK C.J. The applicant for special leave to appeal was charged before the Supreme Court of Victoria at Shepparton on 5th December 1975, with the murder on 14th September 1975, at Mount Beauty in that State of his brother, Kevin. After a trial of four days, the applicant was convicted of murder and sentenced to imprisonment for the term of his natural life. He unsuccessfully appealed to the Court of Criminal Appeal against his conviction. (at p65)

2. The circumstances of the case out of which the charge arose are both simple and contained in a small compass. The applicant, David, at twenty-four years of age was the eldest of four brothers, the others being Kevin (the deceased) twenty-one, Peter seventeen and Adrian eleven at that time. They were all in the loungeroom of their parents' home on the afternoon of Sunday, 14th September, watching television, their parents having been absent during that day. David went through the front door to the verandah of the house. Words arose between him and the deceased relating to David's conduct on the verandah. The deceased latched the flyscreen door, thus excluding David from entry through it to the loungeroom. David went to the rear of the house, went to his bedroom, obtained and loaded his .22 automatic rifle with a single round; entered the loungeroom carrying the rifle pointed in the general direction of the deceased, then reclining on a couch or settee. As he entered, David said to the deceased, "I am going to bloody put a hole in you". David brushed aside the effort of Adrian to dissuade him, and upon the deceased rising and walking awkwardly, because of an ankle injury, towards him, David released the safety catch and discharged the rifle. The bullet passed near to the deceased's heart. He died very shortly thereafter. (at p66)

3. There is a full, accurate and clearly expressed statement of the facts evidenced before the jury in the reasons for judgment of Lush J. given in the Court of Criminal Appeal. I include it here as being adequate for the purposes of these reasons of mine:

"The evidence may be summarised as follows. The day of the killing was a Sunday, and the accused, the deceased and two other brothers, Peter and Adrian, were on that day living at their father's house at Mount Beauty. During the morning the applicant, the deceased and Adrian went shooting together, after some bickering between the deceased and the applicant over matters connected with the shooting excursion. After shooting, they went to a gathering apparently organised by or on behalf of the local football club, at which there was a barrel of beer. At this gathering, the applicant drank eight or nine glasses of beer. The deceased and Adrian wanted to leave, and there was further bickering between them as to whether the deceased could drive the car which they were using. The reason for this was that on the previous day the deceased had severely sprained an ankle. In the end, the applicant drove the other two brothers home and they all had some lunch at home. The applicant then returned to the football club gathering and, arriving there at about one o'clock, remained until the barrel was empty at about two o'clock. The applicant was then involved in discussion with friends about the possibility of obtaining further supplies of beer, but eventually went home. After he had been to a neighbouring house in a further attempt to assist a friend to obtain some more beer, the applicant returned again to his home and there was further bickering apparently initiated by the deceased about the extent of the applicant's drinking. At a time which appears to have been shortly after four o'clock, all four brothers were in the livingroom of the house, where the television set was operating. The applicant cooked some steak, some of which he ate, and he possibly offered some to the others. One of the applicant's friends then came and reported that he had been unable to get the supplies of beer which he had been hoping to get, and invited the applicant to go into his house next door. The applicant said that he would be there in a minute, and proceeded to urinate on to the lawn or garden while standing on the verandah near the main or front entrance to his own home. This apparently incensed the deceased, and a further argument developed before or during which the deceased fastened the wire screen door of the house from the inside, the applicant being outside. After an exchange of words, the applicant asked the deceased to give him his cigarettes, and the deceased looked for them but informed the applicant that they were not there. The applicant then said that they must be on the kitchen table and he proceeded to the rear of the house. He entered the house by a different door from that which the deceased had fastened, obtained a rifle and a round of ammunition, inserted the round in the breach of the rifle and entered the livingroom. The deceased was watching the television set, lying on a couch at the opposite end of the room from the door through which the applicant entered, the length of the room being about eighteen feet. The applicant had the rifle at his hip and pointing at the deceased, and he said, 'I am going to bloody put a hole in you'. The youngest of the brothers, Adrian, who was watching the television set from a chair near the wall on the side of the room on the applicant's right as he faced the deceased, attempted to grasp the rifle and pushed it across to the applicant's left. The applicant pushed him away and told him to sit down, which he did. The deceased rose from the couch and moved one or two steps towards the applicant, and the other brother, Peter, also got to his feet and stood in a position beside the deceased. The deceased advanced further, and the applicant, who had brought the rifle down from the position into which it had been pushed by Adrian, took a step backwards and the rifle was then discharged. The deceased was at this time apparently in the middle of the room, and the applicant near the door through which he had entered. It is possible that his backwards step had taken him slightly outside the door. The bullet struck the deceased near the heart, and he died within a very short space of time. After the shooting, the applicant remained in the vicinity of the house for some time. He was seen and spoken to there by a number of people who gave evidence relating to his condition. He was quiet and withdrawn, and a doctor who was called to the scene described him as 'away in a black world of his own'. In the presence of a neighbour, he looked at the body of the deceased and said, 'I am sorry, Kevvy; you had it coming to you.' The applicant made a record of interview with the police between ten p.m. and midnight on the day of the shooting. In the course of this interview, the following questions and answers were recorded:

'Q. When Adrian grabbed the rifle, what happened then?

A. I more or less pushed him away and I took it off safety and shot from the hip. Q. What was your intention when you shot at Kevin with
the rifle? A. To shoot near him and to scare him.
Q. When you fired the rifle as you said from your hip, where did you have the rifle pointed at this time? A. To the right of the room.
Q. Kevin, where was he at this stage? A. He had jumped off the couch and stumbled towards me. Q. What do you mean by stumbled? A. He had a sore leg and couldn't walk on it properly, and as soon as I fired, he more or less stumbled into it.' On the following day, the police filmed a re-enactment of
the shooting, in the course of which the applicant, speaking of the deceased at a time immediately before the shot was fired, said, 'He was hobbling towards me, to the left and right.' At the time of the shooting, the applicant was aged twenty-four, the deceased twenty-one, their brother Peter seventeen, and their brother Adrian eleven. The learned judge left the case to the jury upon the basis that it was open to them to convict of murder if they found that the applicant had intended to kill the deceased, or if they found that he had intended to inflict grievious bodily harm upon him, or if they found that he had discharged the firearm at the deceased knowing that the shot would probably or more than likely cause his death or serious bodily injury, and that at the time he was indifferent whether death or serious bodily injury would be caused to the deceased and even if he wished that it might not be caused. He also left to the jury alternative verdicts of manslaughter on the basis of unlawful and dangerous act and negligence in the handling of the firearm." (at p68)

4. The principal ground of the application to the Court of Criminal Appeal was that the trial judge had unnecessarily and inappropriately left to the jury the possibility of a verdict of murder by recklessness. The direction was said to be unnecessary and potentially confusing because as a practical matter that basis of murder was not an issue in the case. The direction was said, in any case, to be inappropriate because of the drunken condition of the applicant at the time of the occurrence. (at p68)

5. The trial judge phrased his direction in the sense that, to make out reckless indifference, the applicant must be found to have appreciated that there was a probability that if he went ahead and fired the rifle, death or serious bodily harm would result. He did not limit the probability of harm to a probability of harm to the deceased: on occasions he spoke of a realisation on the part of the applicant that, by firing the rifle in the circumstances, the applicant was exposing the deceased to an appreciable danger of some really serious harm. (at p68)

6. In the particular circumstances of the case, the only likelihood of harm of which the applicant could be found to be conscious or aware was harm to the deceased. His other brothers were beside him: no one else was in the room. But in an appropriate case the probability of harm need not be limited to harm to the deceased. If in all the circumstances there is otherwise material on which to base a verdict of murder by recklessness, a realisation of likely harm to anyone is sufficient. Cf. Stephen's Digest of The Criminal Law, 9th ed. (1950), pp. 211-213, where harm to "some person" if spoken of. Some passages in the summing up in Reg. v. Sergi (1974) VR 1 would seem to limit the relevant likelihood of injury to injury to the deceased. Some expressions in the judgment of the Court of Criminal Appeal seem to be to the like effect. But these are explicable by reference to the facts of the case. If not so intended, they unduly narrow the scope of the relevant reckless indifference. (at p69)

7. Having regard to the terms of the summing up, the present is not a case in which to discuss whether it is sufficient if the accused is found to have appreciated a possibility as distinct from the probability of serious harm if murder by reckless indifference is to be made out. (at p69)

8. The majority of the Court of Appeal was of opinion that murder by recklessness was not a practical issue in the case and that the direction of the trial judge in that respect was unnecessary. But the Court was unanimously of the opinion that none the less there was no miscarriage of justice; that any jury properly instructed would almost certainly have returned a verdict of murder. (at p69)

9. The only defence which the applicant appears to have made on his trial was that his only intent in discharging the rifle was to frighten the deceased. Some endeavour was made during the trial to explore the possibility that the rifle had discharged without pressure on the trigger: but, clearly, no such case was available on the evidence. (at p69)

10. The applicant neither gave nor called any evidence. In addition to the passages from his signed record of interview quoted in Lush J.'s narrative, the applicant there to the question, "What was your intention when you shot at Kevin with the rifle?" answered "To shoot near him and to scare him". (at p69)

11. With due respect to those of a contrary view, a direction as to murder by recklessness was both necessary and appropriate in the circumstances of the case. The risks of misunderstanding such a direction must be recognized and the direction should not be given where there is no material in the case to warrant the giving of a verdict on the footing of it. I would refer, without repeating what I said, to Pemble v. The Queen (1971) 124 CLR 107, at pp 118-120 . I agree with what was said by the Victorian Court of Criminal Appeal in Reg. v. Sergi (1974) VR, at pp 9-11 as to the necessity for the facts of the case in a practical sense to raise an issue of murder by reckless indifference before any appropriate direction is given. (at p69)

12. My reason for thinking the direction necessary in this case is that the raising of the defence in the circumstances entitled the Crown to such a direction. The scene is aptly envisaged from Lush J.'s description of the event. The four brothers were in close proximity in a loungeroom of modest proportion. The deceased was before him when the applicant fired the gun. It must have been pointing in the general direction of the deceased. The applicant was experienced in the use of the rifle. He consciously released the safety catch before discharging the rifle. The deceased was moving towards him at that time. (at p70)

13. A defence that the deliberate discharge of a firearm in those circumstances, albeit not aimed at the deceased, was effected only with the intent to scare or frighten courts a direction as to reckless indifference to the consequences of the maturity of a risk of which at least the likelihood is foreseen. In this case, in my opinion, if an evenhandedness as between the Crown and the accused were to be maintained in the summing up, a direction was necessary as to the acceptance by the applicant of the appreciated risk of injury to the deceased so that the action of the applicant could be regarded as having been taken with a reckless indifference to the likelihood of injury to the deceased. (at p70)

14. Having examined its terms, I am of opinion that the direction actually given as to murder by recklessness was substantially correct. I agree entirely with the Court of Criminal Appeal and for the reasons there expressed that, even if the direction were considered unnecessary, it did not render the summing up as a whole unacceptable, nor did its inclusion tend to confuse the jury in their consideration of the more direct issues in the case. I also agree that no reasonable jury properly instructed could have failed to reach a verdict of murder upon all the material produced. Indeed, I ought to say that the applicant had the benefit of a summing up which did not disregard the slightest opportunity to explore possible interpretations of the facts favourably to the accused, some of which might be thought by many to be more than remote and to lack practical reality. (at p70)

15. However, after the application for special leave to appeal had been lodged with this Court, the summing up appears to have been subjected to further and intense scrutiny. As a result, a further ground for seeking special leave was notified, namely, that the learned trial judge failed to direct the jury or, alternatively, misdirected the jury as to the onus of proof and, in particular, as to the meaning of the words "reasonable doubt". (at p70)

16. This ground refers to a portion of the summing up in the early days of its lengthy and oft repetitive progress. It occupies forty-five pages of typescript, apart from eighteen further pages of discussion with counsel and of answering questions of the jury. (at p70)

17. The relevant passage of the summing up, actually recorded on the second page of the typescript record, is as follows:

"The Crown, of course, has to establish its case beyond reasonable doubt. As you were told by the prosecutor himself, that does not mean beyond any doubt at all, but it must be beyond reasonable doubt. The onus of proof is thus much higher than the onus of proof in civil cases where, you may know (if you do not it does not matter) that there proof is on the balance of probability. In a case like this, where the evidence is arranged as it is, before you reach a view that something has been established beyond reasonable doubt you also have to be satisfied that there is no other rational conclusion which is consistent with the innocence of the accused. If there is another rational explanation it follows that there is a reasonable doubt. So if you want to do it this way, as an approach, when considering whether the case for the prosecution has, in any particular respect, been established beyond reasonable doubt contrast with that a design to find out the answer to that question, whether there is an explanation which is reasonable and rational which is consistent with the innocence of the accused. If there is you need to think harder as to what you should do. I say harder as to what you should do because there is a spread of situations that have been placed before you as to the circumstances in which the facts, as you find them, may amount to murder or to manslaughter, and eventually I will go through those."

Throughout the remainder of his summing up, the trial judge from time to time reminded the jury that they had to be satisfied beyond reasonable doubt without any reference to or repetition of what appears in the passage reproduced above. (at p71)

18. This Court has clearly laid it down that it is both unnecessary and unwise for a trial judge to attempt explanatory glosses on the classical and, as I think, popularly understood formula which expresses the extent of the onus resting on the Crown in its attempt to establish the commission of a crime: see Green v. The Queen (1971) 126 CLR 28 . The Court has also indicated the limited occasions on which, in a case depending on circumstantial evidence, the extended formula proposed by Alderson B. in R. v. Hodge (1838) 2 Lewin CC 227 (168 ER 1136) should be used: see Grant v. The Queen (1975) 11 ALR 503 . (at p71)

19. In the present case, no question of circumstantial evidence arose. The evidence of the discharge of the gun and the circumstances in which it occurred were the subject of direct eye witness evidence. Undoubtedly, the case was not one in which to complicate the summing up by resort to any formula except the traditional reference to the absence of reasonable doubt. (at p72)

20. The passage I have quoted was, in my opinion, erroneous. It seems to have resulted from a confused co-mingling of the traditional formula with the formula at times appropriate to a case depending on circumstantial evidence. That the direction ought not to have been given in those terms needs no elaborate exposition. A rational conclusion and a rational explanation cannot be equated in the administration of the criminal law with a reasonable conclusion and a reasonable explanation. The jury set for themselves the perimeters of what is, in these contexts, reasonable. (at p72)

21. The objection to the summing up does not end there. It was erroneous - and indeed confusing - to tell the jury that finding a reasonable and rational explanation of the facts consistent with the innocence of the accused merely imposed a more difficult task upon them, because of a choice of verdicts which remained to them. If they found such an explanation, the accused was entitled to an acquittal. The jury in that case could not have been satisfied beyond reasonable doubt. (at p72)

22. But the real difficulty I have had in this case is not to discover the errors in the passage quoted from the summing up. The difficult question is to decide whether the summing up as a whole none the less was adequate. Did its terms, in the effect they may have had upon the jury, deny the accused a fair trial, the case against and for him being fairly placed before the jury with adequate assistance by the trial judge? (at p72)

23. The first question, I think, is to determine whether words spoken in terms of the record of the summing up would be so appreciated by the jury as to provide them with a false basis for deciding whether the Crown had proved its case. A cogent consideration to my mind in this connexion is the reaction of counsel for the defence to the hearing of that portion of the summing up. In a break in the summing up, his Honour, in discussion with counsel as to possible exceptions to the summing up, said: "... that the onus is not only on the Crown to prove this beyond reasonable doubt, but this onus does involve excluding the rational possibility that is consistent with the innocence of the accused ...", to which counsel responded: "... Your Honour did earlier use the formula that is commonly attached to the circumstantial type of situation and I do not complain about that. Your Honour did not put it in the general term." His Honour's response was: "Well I did not put it any further with a case like this because the jury would get into an artificial area if you instructed them on the theory of the differential inference." Counsel replied: "But when you come to this situation, your Honour, my main concern only was that because your Honour was rolling it up in this way that it was there very appropriate to have added that aspect of it." (at p73)

24. His Honour on the final remaining day of hearing on his charge to the jury gave them a reprise of what he had already told them and used the expression: "... has it been established beyond reasonable doubt that he was guilty of murder? If not, has it been established beyond reasonable doubt that he was guilty of manslaughter? If not, the verdict is not guilty." (at p73)

25. Now, whilst in the calm and inquisitive atmosphere of a court of appeal it may be said that there was present, by inference, every time a reference was made to reasonable doubt, the meaning which was given to the expression at the second page of the typescript record of the summing up, the trial judge did not at any stage so qualify his references to the onus of proof: nor did he at any stage remind the jury of his early, and, by the time he used the expressions I have quoted from the typescript record on the final day of the hearing, remote, exposition of a possible approach to their task of seeking satisfaction beyond reasonable doubt. I might add that I doubt that the jury, listening to the summing up, would appreciate the distinction between rational and reasonable in the confused context of the passage I have quoted from the summing up. Further, counsel was content with the summing up, seemingly relating the material on the second page as at least primarily referable to any merely circumstantial elements in the evidence. (at p73)

26. For these reasons, I do not think that the jury were likely to be diverted from the constant application of the onus of proof expressed in traditional terms to the evidence before them. (at p73)

27. However, I should add two things. First, that a time-honoured view is that the adequacy of a summing up ought not to be judged upon a subtle examination of its transcript record or by undue prominence being given to any of its parts. It should be taken as a whole and as a jury listening to it might understand it. The second is that, whilst in a case where a summing up is radically in error, the failure of counsel to object to it in terms calculated to afford the trial judge an opportunity to amend it in a relevant respect will not necessarily defeat an application for special leave, generally, such a failure on the part of counsel will be a considerable impediment to the grant of such leave. Here the ground now sought to be taken was not taken before the Court of Appeal. This Court should give no encouragement to the addition of such further grounds, unless the interests of justice undoubtedly demand their admission. They do not in this case. (at p74)

28. In my opinion, special leave to appeal should be refused. (at p74)

GIBBS J. David Francis La Fontaine was tried in the Supreme Court of Victoria on a charge of having murdered his brother Kevin. He was convicted and his application for leave to appeal was refused by the Court of Criminal Appeal. He now applies to this Court for special leave to appeal. (at p74)

2. Kevin La Fontaine was killed when he was struck near the heart by a bullet fired from a .22 rifle held by the applicant. At the time, Kevin and two other brothers were together in a small room and the applicant was near the door of the room or possibly just outside it. There was evidence on which the jury could have found that the applicant had put a bullet in the rifle, had released the safety catch and had pulled the trigger while holding the rifle at his hip. Kevin was then moving towards the applicant and was shot at close range. Before the rifle was discharged the applicant had said to Kevin, "I am going to bloody put a hole in you". However, in a statement to the police the applicant said that when he shot at Kevin his intent was to shoot near him and to scare him, and that he had pointed the rifle to the right-hand side of the room - presumably away from Kevin - and that Kevin more or less stumbled into the shot. The applicant had drunk a great deal during the day on which the shooting occurred. (at p74)

3. The learned trial judge directed the jury that the applicant would be guilty of murder if he had fired the rifle either with intent to kill Kevin, or with intent to do him serious bodily injury. He then told them that there was a third class of case in which the applicant might be found guilty of murder. He described this third class in the following words: "If he discharges a firearm at another person, knowing that the shot will probably or more than likely cause the death of or serious bodily injury to that other, and that at the time he was indifferent whether death or serious bodily injury would be caused to the other or even if he wished that it might not be caused." He also left it to the jury to consider a verdict of manslaughter. Since the jury found the applicant guilty of murder they must have considered that the rifle was discharged deliberately and not by accident. It was not disputed that it would have been open to them to find that the applicant fired with intent to kill his brother or do him grievous bodily harm. However, before the Court of Criminal Appeal, and again before us, it was submitted that it was wrong to direct the jury that they might bring in a verdict of murder on the basis of what was described in argument as "a reckless intent" and alternatively that the summing up on this point was inadequate. (at p75)

4. In Victoria the state of mind necessary to constitute the crime of murder is not defined by statute. The rules which the learned trial judge was required to apply were those of the common law. The law on this matter, so far as it is relevant, was stated in Stephen's Digest of the Criminal Law in the following passage which is set out in the judgment of Lord Cross in Reg. v. Hyam (1975) AC 55, at p 95 :

"... Murder is unlawful homicide with malice aforethought. Malice aforethought means ... (a) An intention to cause the death of, or grievous bodily harm, to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some
person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; ... "

At the time when Sir James Stephen wrote, in 1877, there was little authority to support his statement that knowledge that the act which in fact causes death will probably cause death or grievous bodily harm will provide the mental element that constitutes an unlawful homicide murder rather than manslaughter. However, it has since been accepted in the Supreme Courts of Victoria (Reg. v. Jakac (1961) VR 367 and Reg. v. Sergi (1974) VR 1 and South Australia (Reg. v. Hallett (1969) SASR 141, at pp 153-154 that the passage cited from Stephen's Digest of the Criminal Law correctly expresses the law, and that view is confirmed by the decisions of this Court in Pemble v. The Queen (1971) 124 CLR 107 and of the House of Lords in Reg. v. Hyam (1975) AC 55 . It must now be taken to be the law that a person who does an act knowing that it is probable that death or grievous bodily harm will result is guilty of murder if death does in fact result, even though he had no intention to cause death or grievous bodily harm. In Pemble v. The Queen (1971) 124 CLR, at p 121 Barwick C.J. went further, and said that it is "sufficient that the death or grievous bodily injury of the person towards or in connexion with whom the accused contemplated an act or omission should be foreseen by him as possible", and the question whether the foresight required to make the homicide murder should be a foresight of the probability, and not merely of the possibility, of death or grievous bodily harm has given rise to some discussion: see Glanville Williams, Criminal Law - The General Part, 2nd ed. (1961), p. 59 et seq.; Howard, Australian Criminal Law, 2nd ed. (1970), p. 57 et seq. and Reg. v. Hallett (1969) SASR, at p 153 . Although it is unnecessary to decide this question in the present case, I am, with all respect, unable to accept that the foresight of a mere possibility of death or grievous bodily harm would be enough. There is a great difference between the state of mind of an accused who is prepared to risk the consequences of death or grievous bodily harm that he foresees as probable and that of an accused who does no more than take the chance that death or serious injury may ensue although it seems an unlikely consequence. The act of the former is much more worthy of blame than that of the latter. To treat knowledge of a possibility as having the same consequences as knowledge of a probability would be to adopt a stringent test which would seem to obliterate almost totally the distinction between murder and manslaughter. I therefore respectfully agree with the views expressed by McTiernan and Menzies JJ. in Pemble v. The Queen (1971) 124 CLR, at pp 127, 135 , that in cases of this kind an accused will not be guilty of murder unless he foresaw that death or grievous bodily harm was a probable consequence of his behaviour. (at p76)

5. It has become common to describe the mental state of an accused person who acts knowing that his act will probably cause death or bodily injury as one of recklessness or reckless indifference. Judges and textwriters alike have used those expressions: see Pemble v. The Queen (1971) 124 CLR, at pp 118, 127, 135 ; Howard, op. cit., p. 55 et seq.; Glanville Williams, op. cit., p. 60 et seq.; Russell on Crime, 12th ed. (1964), p. 41 et seq. Indeed the legislature itself has in some places adopted them. However useful those words may be as a compendious description of this mental state, they should not in my opinion be used by a judge when summing up to a jury in States where the legislation does not require it. To tell a jury that they may convict of murder when they are satisfied that the accused acted with recklessness or reckless indifference is to invite confusion between murder and manslaughter resulting from criminal negligence. In many, if not most, cases where the Crown alleges that the accused acted knowing that his act would probably cause death or grievous bodily har, it will also be alleged by the Crown, in the alternative, that the accused was guilty of criminal negligence. The expression "reckless" is also used to describe that very high degree of negligence which, if it causes death, amounts to manslaughter: see Andrews v. Director of Public Prosecutions (1937) AC 576, at p 583 ; Eugeniou v. The Queen (1964) 37 ALJR 508, at p 509 . It is not easy to explain to a jury the difference between the reckless indifference which, if it exists, may justify a conviction of murder and that recklessness which would warrant a conviction for manslaughter. The purpose of a summing up is not to endeavour to apprise the jury of fine legal distinctions but to explain to them as simply as possible so much of the law as they need to know in order to decide the case before them. The mental element necessary to justify a conviction for murder in circumstances such as the present is sufficiently stated in the words of Sir James Stephen. It cannot assist, and may confuse, the jury to add to those words the gloss that the state of mind thereby described is one of recklessness or reckless indifference. It is enough to tell them that it is only if the accused actually knows that his act will probably cause death or grievous bodily harm that he can be convicted of murder. The extreme gravity of his offence lies in the fact that he fully realized the probable consequences of his act and was prepared to take the chance that they would ensue. If he did not in fact foresee that death or grievous bodily harm would probably be caused by his act, he would not be guilty of murder even though a reasonable man would have foreseen that such a result was probable; in those circumstances he might however be guilty of manslaughter. (at p77)

6. It follows from what I have said as to the duty of a judge when summing up to a jury that I am in complete agreement with the views expressed in Pemble v. The Queen (1971) 124 CLR, at p 118 , and Reg. v. Sergi (1974) VR, at pp 9-10 , that a direction as to this sort of murder should only be given where the facts of the case make it a practical issue. In the present case, however, it was right to give a direction of this kind to the jury. Although, as I have already said, it was open to the jury to find that the applicant had fired the rifle with the intention of killing Kevin or doing him grievous bodily harm, it was also open to them to find that he had fired without such intention but knowing that his act would probably cause the death of, or grievous bodily harm to, his brother. If the jury acted upon the applicant's statement that he intended to shoot near Kevin and to scare him it would have been reasonable for them in all the circumstances of the case to draw the further conclusion that the applicant knew that it was probable that the bullet would strike Kevin and cause death or grievous bodily harm. The fact that the applicant had consumed a great deal of drink was relevant, and indeed important, in considering whether he in fact foresaw the probable consequences of his act, but there was evidence which justified the jury in concluding that he was aware of the probable consequences of firing a shot near Kevin. (at p78)

7. I have given careful consideration to the charge which the learned trial judge gave to the jury on this question and have reached the conclusion that, taken as a whole (as it must be), it was correct and sufficient. No useful purpose would be served by discussing the charge in full detail but some passages in it are open to criticism and it is necessary to refer to them. At one stage the learned trial judge referred to counsel's submissions in relation to what he called "this third class of malice" and said:

"He pointed out to you also that it required a definite and distinct intention; it involved recognizing the probability of injury; it involved a conscious reference to that possibility of injury and it involved a decision to carry on, regardless of the risk of injury."

Taken alone, this was a misdirection for, as I have said, the jury were entitled to convict of murder only if satisfied that the applicant had acted with foresight that death or grievous bodily harm was a probable consequence of his action; foresight that death or grievous bodily harm was a possible consequence was not enough. At another point the learned trial judge said this to the jury:

"Of course the prosecutor says that if you reach the view that the intention of the accused was to frighten and not to kill but it nevertheless involved firing a weapon at close quarters, in the living room of the house with other people including the deceased there, that there was a probability or likelihood that if the bullet hit one of the people in the room, it could either kill them or cause serious bodily injury. That would justify your making use of the third kind of intent."

That also was in itself a misdirection, and quite a serious one, for it is knowledge of the probability of the consequences, not their probability alone, that is essential to ground a conviction for murder. However, in the course of his charge the learned trial judge correctly instructed the jury again and again that a conviction of murder on this basis required proof that the accused had fired the shot knowing that it was probable that it would cause death or serious bodily injury. There are at least five passages in the course of the charge in which this direction was repeated. After the jury had retired and had deliberated for a time they returned seeking further instruction which the learned trial judge gave them. He then said:

"The third one (classification of intent) is that he discharged the rifle at the deceased knowing that the shot would more probably than not, or more likely than not, cause the death of or serious bodily injury to the deceased and that at the time that he did this he was indifferent as to whether death or serious bodily injury would be caused to the other. He even may have had an intention that it might not be caused. But if he knew, if you are satisfied beyond reasonable doubt that he knew that as a matter of probability, on a better than balanced basis, such serious injury would be caused, then that can justify your bringing in a verdict of murder if you are satisfied that he was capable of forming the intention or appreciation that he was indifferent as to whether the discharging of the firearm ultimately had that effect or not. That is consistent with his not wanting to kill the deceased but discharging the firearm at him knowing that there was a better than balanced risk that he could be seriously injured or killed."

This direction clearly brought out to the jury that it was the knowledge or appreciation of the probability of death or bodily injury that had to be proved. Perhaps the words "better than balanced" were not well chosen but in my opinion the charge, taken as a whole, left the jury in no doubt that it was necessary to be proved that the applicant had foreseen the probability of death or grievous bodily harm. (at p79)

8. It was suggested that if the applicant had intended to shoot near to his brother so as to frighten him it could not be said that he had acted with reckless indifference and therefore could not be held to be guilty of murder and that it was a misdirection to say to the jury "He even may have had an intention that it might not be caused"; that direction, it was said, would only be correct if "wish" or "desire" were substituted for "intention". With all respect, I cannot agree with this suggestion. The fact that the applicant intended that the bullet should miss Kevin would not be inconsistent with a conviction for murder. If the intention to fire the shot was accompanied by knowledge that by firing the shot he would probably cause the death of, or grievous bodily harm to, his brother, that would be enough. The fact that he intended to fire in such a way that the bullet would not hit his brother would not mean that he lacked the mental state necessary to ground a conviction for murder; that would exist if he acted as he did with full knowledge that death or grievous bodily harm was a probable consequence. (at p79)

9. On behalf of the applicant there has been raised a further objection to the charge which was not taken at the trial, before the Court of Criminal Appeal or even in the notice of motion to this Court. This was that an inadequate or misleading direction was given on the subject of reasonable doubt. In the course of his charge the learned trial judge told the jury that the Crown had to establish its case beyond reasonable doubt. He repeated this statement on a number of occasions. However, early in his charge, after telling them that the Crown had to establish its case beyond reasonable doubt and that the onus of proof was thus much higher than the onus of proof in civil cases, he went on to say:

"In a case like this, where the evidence is arranged as it is, before you reach a view that something has been established beyond reasonable doubt you also have to be satisfied that there is no other rational conclusion which is consistent with the innocence of the accused. If there is another rational explanation it follows that there is a reasonable doubt. So if you want to do it this way, as an approach, when considering whether the case for the Prosecution has, in any particular respect, been established beyond reasonable doubt contrast with that a design to find out the answer to that question, whether there is an explanation which is reasonable and rational which is consistent with the innocence of the accused. If there is you need to think harder as to what you should do. I say harder as to what you should do because there is a spread of situations that have been placed before you as to the circumstances in which the facts, as you find them, may amount to murder or to manslaughter, and eventually I will go through those."

The argument advanced before us on behalf of the applicant was that in this passage the judge in effect told the jury that they would have a reasonable doubt only if they found that there was a rational explanation of the evidence consistent with innocence, and that the jury might have understood the words "reasonable doubt" in this sense whenever they were used in the course of the charge. (at p80)

10. This Court has not infrequently warned trial judges of the dangers of endeavouring to explain the traditional expression "beyond reasonable doubt", which, speaking generally, is well understood and needs no explanation. Where the case depends upon circumstantial evidence it is usual to direct the jury that they cannot convict unless they are satisfied that the circumstances are such as to be inconsistent with any reasonable hypothesis (or rational conclusion) other than the guilt of the accused (see Peacock v. The King (1911) 13 CLR 619, at p 634 ) but in other cases attempts to define "reasonable doubt" may obscure or distort the meaning of that phrase and lead to a misdirection, as in Green v. The Queen (1971) 126 CLR 28 . It is in all cases the duty of the trial judge to make the jury understand that a criminal charge has to be established by the prosecution beyond reasonable doubt, but as Windeyer J. said in Thomas v. The Queen (1960) 102 CLR 584, at p 605 "the best and plainest way" to give such a direction is to tell them that they must be satisfied beyond all reasonable doubt. (at p81)

11. The present case was not one of circumstantial evidence. There was no need to adapt the formula used in such cases and of course still less to invert it so as possibly to suggest that it is only if the jury find that there is a rational explanation consistent with innocence that there can be a reasonable doubt. However, having considered the charge as a whole I have reached the conclusion that although this particular passage is in itself open to objection, the jury would not have been misled by it, having regard to the other and proper directions which they received. They were repeatedly told that they had to be satisfied beyond reasonable doubt and when the learned judge gave them the further direction to which I have already referred he again directed them to that effect. In my opinion when the jury retired they could have been under no misapprehension as to their duty. It is not without significance that at the trial counsel for the applicant expressly stated that he made no complaint about his Honour's "use of the formula that is commonly attached to the circumstantial type of situation" and that it was only after the notice of appeal had been lodged with this Court that it occurred to counsel that the summing up was defective in this respect. (at p81)

12. Of course the statement that if the jury thought that there was a doubt they would need to think harder was incorrect. However, there can be no doubt that the charge as a whole made it perfectly clear to the jury that what the judge meant was that if they were left in doubt as to whether the applicant had an intention to kill or inflict grievous bodily harm it would be necessary for them to consider whether he had fired the shot knowing that it would probably cause death or grievous bodily harm, and that if they were in doubt about that they would still have to consider the question of manslaughter. (at p81)

13. Many charges when subjected to close scrutiny will be found to contain misstatements which are corrected elsewhere in the charge. Notwithstanding the criticisms levelled at the charge in the present case I am satisfied that, taken as a whole, it was fair and sufficient. I would refuse special leave to appeal. (at p81)

STEPHEN J. The applicant La Fontaine, having fatally shot his younger brother, was found guilty of murder in a trial in the Supreme Court of Victoria before Griffith J. and a jury of twelve. His application to the Court of Criminal Appeal for leave to appeal failed. He now applies to this Court for special leave to appeal. (at p81)

2. The application before the Court of Criminal Appeal was concerned principally with the learned trial judge's charge to the jury in so far as it included a direction that the applicant might be found guilty of murder not only if he had intended to kill or to inflict grievous bodily harm but also in circumstances involving recklessness on his part. If he had fired at his brother knowing that to do so would probably, or more than likely, cause his death or serious bodily injury then, whether he was indifferent to those consequences or even if he wished that they might not ensue, that too would be murder. (at p82)

3. A majority of the Court of Criminal Appeal concluded that the nature of the evidence before the jury made it inappropriate to have included this direction in the charge to the jury but that its inclusion did not involve any miscarriage of justice. Had the jury been properly instructed the same verdict would almost certainly have resulted and there had been no risk of confusion between the ingredients of murder and those of the alternative verdict of manslaughter. The application for leave to appeal was accordingly refused. Anderson J., the third member of the Court of Criminal Appeal, agreed in the result but for quite different reasons since he considered that there had been no misdirection, the learned trial judge's direction being appropriate to the facts of the case. (at p82)

4. Before this Court the same aspect of the charge was again relied upon but to it was added a new objection to the charge not previously argued and which had not been the subject of any objection at the trial. It relates to the learned trial judge's direction concerning the necessary standard of proof of guilt required before the applicant may be convicted. (at p82)

5. The learned trial judge had, at an early stage in his charge to the jury, explained for the first and only time what was the particular meaning which the jury were to assign to the expression "beyond reasonable doubt" which he thereafter frequently employed in his charge. He stated in quite unobjectionable terms the ingredients involved in the possession of a reasonable doubt. He then went on to suggest to the jury that they might satisfy themselves whether or not there existed such a doubt as to guilt by asking themselves whether there existed any explanation consistent with innocence which was both reasonable and rational. (at p83)

6. This suggestion followed the elaboration by his Honour of his earlier observation that, before concluding that guilt had been established beyond reasonable doubt, the jury should be satisfied that there was no other rational conclusion consistent with innocence. His Honour continued:

"If there is another rational explanation it follows that there is reasonable doubt. So if you want to do it this way, as an approach, when considering whether the case for the Prosecution has, in any particular respect, been established beyond reasonable doubt contrast with that a design to find out the answer to that question, whether there is an explanation which is reasonable and rational and which is consistent with the innocence of the accused."

Despite some garbling that appears to have occurred in transcription, the substance of what his Honour said is clear. It was, I think, such as might mislead the jury and might do so in a manner seriously prejudicial to the accused. It might suggest to them that it was for the accused to satisfy the jury of the existence of a reasonable and rational explanation consistent with innocence, failing which the jury could conclude that no reasonable doubt as to guilt existed. The jury were, I think, likely to have understood that they might ask themselves the question "Is there any explanation consistent with innocence which is both reasonable and rational?" and, if able to give a negative answer to that question, might then regard themselves as being satisfied beyond reasonable doubt. (at p83)

7. Later in the same passage the learned trial judge went on to say that if an affirmative answer was given to the question which he suggested the jury should ask themselves they would then "need to think harder as to what you should do". As subsequently appeared, his Honour had in mind that in such a case the jury would have to choose between murder and manslaughter and that their task would be the more difficult because it would involve the making of that choice. In fact an affirmative answer to the question suggested by the learned trial judge, whether there was an explanation consistent with innocence which was reasonable and rational, would not have made the jury's task "harder"; all they needed then to do would be to acquit the accused. However this particular error, textually associated with and perhaps induced by what preceded it, would not, I think, on its own have been capable of causing any miscarriage of justice; on a number of subsequent occasions the learned trial judge was at pains to make it perfectly clear that the possession of reasonable doubt in the minds of the jury must lead to an acquittal. Any confusion which it may have caused in the minds of the jury would, I think, have been wholly removed by what was subsequently said. (at p84)

8. This is not so in the case of the first error, that involved in the suggested method of testing the existence of satisfaction beyond reasonable doubt. Having once supplied an authoritative test of that state of mind and having left that test in the minds of the jury, to be applied by them to those matters upon which they had to pass, matters which his Honour went on to describe as depending upon satisfaction beyond reasonable doubt, there arises in my view a clear possibility that the trial may thereby have miscarried. What was said by this Court in Green v. The Queen (1971) 126 CLR 28, at p 31 is apt. There, as here, the learned trial judge had "made reference elsewhere in his summing up to the need to be satisfied beyond reasonable doubt but these references were, in our opinion, controlled by the definition of that expression which his Honour gave in the passage we have quoted". Here it was no precise definition that controlled the subsequent references to reasonable doubt but instead a suggested means whereby the jury might test the existence of such a doubt. (at p84)

9. This Court has on a number of occasions, many of which are reviewed in Green v. The Queen (1971) 126 CLR 28, at p 31 referred to the danger of attempting to explain or elaborate upon the content of the time-honoured formula of "a reasonable doubt". As Sir Owen Dixon said in Dawson v. The Queen (1961) 106 CLR 1, at p 18 , the attempts to substitute other expressions have never prospered. In Thomas v. The Queen (1960) 102 CLR 584, at p 595 Kitto J. said:

"Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what 'reasonable' means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable."

In the present instance the vital point has been obscured. Perhaps the proper direction to be given cannot more succinctly be expressed than in the words of Windeyer J. when he said (1960) 102 CLR, at p 605 :

"The House of Lords said in Mancini v. Director of Public Prosecutions (1942) AC 1, at p 13 that a direction 'as to reasonable doubt' must be 'plainly given'. The best and plainest way to give it is, I venture to think, to tell the jury that they must be satisfied beyond all reasonable doubt." (at p85)

10. This was not a case of circumstantial evidence and nothing that I have said is intended to cast doubt upon the desirability, in most cases involving circumstantial evidence, of the jury being directed that the circumstantial evidence must be not merely consistent with the accused's guilt but inconsistent with his innocence. I mention this only because of the similarity between what was here said to the jury and what is customarily regarded as appropriate where circumstantial evidence is in question. (at p85)

11. That at the trial no objection was taken to this aspect of the charge, at a time when it could have been, and no doubt would have been, corrected, is unfortunate. In undertaking the exacting task of directing a jury in cases in which the issues are complex a judge is entitled to the anxious assistance of counsel. Moreover the very fact that no objection is taken at the time will in some cases of itself suggest that, however a particular portion of the charge may read in print, it was not, in the context and circumstance of its delivery, such as to mislead those who heard it. I am, however, unable to conclude that this was such a case and that the failure to take objection at the appropriate time should deprive this present objection of its force. That this ground was relied upon for the first time before this Court has also been productive of unfortunate consequences and would, in appropriate circumstances, provide a reason for not now permitting it to be availed of. The particular nature of the error of law upon which this ground is founded is, however, in my view such as to preclude the taking of this course. I have concluded, although with reluctance, that there should be a new trial. (at p85)

12. In these circumstances it is proper that I should express my views upon the other objection taken on behalf of the applicant, that upon which the Court of Criminal Appeal was divided; that is, whether on the facts of this case it was appropriate to give any direction as to the third circumstance in which a verdict of guilty of murder may be found and, if it was inappropriate, whether there was nevertheless no miscarriage of justice. (at p85)

13. As to the latter aspect, were it necessary for me to decide the matter on this ground, I would be content to adopt all that was said by Lush J. in the course of his judgment in the Court of Criminal Appeal; I have no doubt but that in the circumstances to which his Honour refers there was no miscarriage of justice which could have resulted from the giving of the challenged direction to the jury. However I have in fact concluded that this was a case appropriate for the giving of the direction in question. In arriving at this view I have been guided by the observations of the Chief Justice in Pemble v. The Queen (1971) 124 CLR 107, at pp 118-119 . The present case is, in my view, such a one as his Honour referred to when he said of Pemble's trial that the jury, if unwilling to infer an intent to kill or to do grievous bodily harm, were entitled to accept the view that Pemble foresaw the possible consequences of the discharge of the rifle and, in acting as he did, displayed reckless indifference to human life. (at p86)

14. In the present case Anderson J., in the course of his judgment in the Court of Criminal Appeal, concluded that if the jury were not satisfied that the applicant intended to hit the deceased it was nevertheless open to them to find that he must have adverted to the likely consequences of firing as he did and was indifferent to those consequences. The applicant deliberately fired from a doorway into a room in which were the deceased and his two other brothers; of these three persons two of them were upright near the middle of the room, facing the applicant and quite close to him; the jury may have found that one of these two, the deceased, was moving towards the applicant swaying from side to side as he approached. If the jury accepted as true the applicant's subsequent statement that he intended only to frighten the deceased they could in the circumstances conclude that he nevertheless possessed the necessary malice, consisting of advertence to what might prove to be the fatal consequence of firing the gun coupled with an indifference to the occurrence of that consequence. The ingredients necessary to constitute murder would then be present, notwithstanding the absence of a positive intent to hit the deceased. In these circumstances it was proper to give the challenged direction, great care being taken, as it in fact was, to ensure that the distinction between murder and manslaughter was brought home to the jury. (at p86)

15. I would, for the reasons stated in the earlier portion of this judgment, allow this appeal and order a new trial. (at p86)

MASON J. In my view this application for special leave to appeal should be refused. With one exception the grounds on which the application was based do not require lengthy consideration, the facts of the case having been comprehensively stated by other members of the Court. (at p86)

2. The first ground taken is that the learned judge, in informing the jury that they should be satisfied of the reasonable doubt of the accused's guilt, erroneously directed the jury that they should not convict if there was a rational explanation consistent with the accused's innocence, thereby equating a "reasonable doubt" with a "rational doubt". As to this, I agree with the Chief Justice in thinking that in the circumstances of this case this ground provides no basis for special leave. There is no occasion for me to add to what his Honour has written on this aspect of the case, except to say that the trial judge in directing the jury on the facts stated:"...you should satisfy yourselves that the rifle was aimed and that it was fired by pressing the trigger, after releasing the safety catch, before you would classify this as murder in the sense that you were satisfied beyond reasonable doubt." This direction - and there were other illustrations of a similar kind - made it clear to the jury that the judge was using the expression "reasonable doubt" in its usual sense. The particular situation under consideration did not predicate the existence of a rational explanation consistent with innocence; it illustrated, by reference to a view which the jury might take of the evidence, a failure by the Crown to establish with sufficient cogency an essential ingredient in this aspect of the Crown case. The direction plainly indicated what is meant by the expression "reasonable doubt" and that its meaning was not confined to the artificial and restricted sense in which, according to the applicant, it was used in the passage on which the applicant strongly relied. (at p87)

24. This may have been corrected a little later when his Honour said:

"So it would seem that the evidence given about dropping the rifle or about knocking the rifle does not bear very strongly on the matters with which you are concerned. The lightness of the trigger, of course, bears on it, to this degree, if for no other, that if anyone is to handle a loaded firearm at close quarters which, from experience, he knows to have a lightness on the trigger, then of course the more conscious he is of the danger of doing so the more careless or reckless is his act in running that risk. It is open to you to infer I suppose that the accused here had had that rifle long enough to know its characteristics. If that be so, you have to understand what kind of risk was being run in his going into a room with three other people there with a loaded firearm, a rifle with the armoury characteristics of this one. You will have seen that I have now started to trail off from the charges of murder and to enter the area of manslaughter. I hope that you will not think this is on the edge of deception, but it was done consciously so that you appreciate that the dividing line between murder and manslaughter is the stage at which you cannot assign to the actions of the accused when handling and firing the rifle: the possession by him of a specific intent to kill or to grievously wound or to recklessly and indifferently accept the risk of what involves probable injury of a serious kind or the causing of death to the accused."

How much of these directions related to murder and how much to manslaughter is not clear to me and with respect I do not think that it would have been clear to the jury. (at p103)

25. The following day his Honour resumed his charge. After hearing submissions of counsel, he recapitulated or restated the law and in the course of so doing said:

"I told you also that in my view at any rate, to find the accused guilty of murder it would also be necessary for you to feel satisfied beyond reasonable doubt that the accused pulled the trigger of the rifle and that the safety catch was off. Any idea that the weapon was discharged otherwise than by pulling the trigger would seem to me not to fit in with the pattern of murder. On the other hand, in relation to manslaughter it would seem to me that if you were satisfied beyond reasonable doubt of the guilt of the accused, of manslaughter, then it would not matter how the firearm was actually discharged. I do not mean that you need not consider how it was discharged; I mean it does not seem to me - and this is only a comment - as to whether it was a result of some pressure applied to the trigger or some other way."

I interpose to say that this repeats the implication that the jury could find the applicant guilty of murder even if they were not satisfied that the applicant pulled the trigger. The words used can only be read as a comment on the way he, the trial judge, would view the facts. The learned judge proceeded:

"Now, if I may, I will go through the points of law that I mentioned yesterday so that they come freshly to your minds as you re-enter the arena today. I am sorry if these sets of words are now becoming to sound over familiar. Cutting away the dead wood that need not be considered here, that is the fact of death and things like that, the kind of intent that a person needs to have to be found guilty of the crime of murder, and this intent must be proved beyond reasonable doubt, is either (a) the intention to have killed the deceased or (b) the intention to do serious bodily injury to the deceased. Or, (c) that he, the accused, discharged the firearm at the deceased knowing that the shot will probably or more likely than not cause the death of or the serious bodily injury to the deceased, and that at the time he was indifferent as to whether death or serious bodily injury would be caused to the deceased, even if he wished that it might not be caused to the deceased. Then you have the next area, which is manslaughter, and I will deal with that in a moment."

This direction is correct as was the first direction but it is not consistent with what had meanwhile been said and there is no specific correction of what had meanwhile been said. Nevertheless, if the situation rested there, it would be open to question whether this Court should intervene. But the situation did not rest there. (at p104)

26. The jury retired and returned four hours later, the foreman saying "We would like the law read again on the charges of murder and charges of manslaughter". The trial judge gave the following directions:

"Murder is committed where a person does a voluntary act which causes the death of another - you might say that a voluntary act of firing a firearm, a decision which he makes freely, in a voluntary sense - and then you have to find in addition that there was a specific intention, one kind of intention which will result in a verdict of murder is that he intended to kill the deceased. Intend to kill, when you are talking about the use of firearms, means shot to kill. That is shot to kill in the sense of mortally wound the deceased. The second classification of intent is that he shot with the intention to do serious bodily injury to the deceased. The third one is that he discharged the rifle at the deceased knowing that the shot would more probably than not, or more likely than not, cause the death of or serious bodily injury to the deceased and that at the time that he did this he was indifferent as to whether death or serious bodily injury would be caused to the other. He even may have had an intention that it might not be caused. But if he knew, if you are satisfied beyond reasonable doubt that he knew that as a matter of probability, on a better than balanced basis, such serious injury would be caused, then that can justify your bringing in a verdict of murder if you are satisfied that he was capable of forming the intention or appreciation that he was indifferent as to whether the discharging of the firearm ultimately had that effect or not. That is consistent with his not wanting to kill the deceased but discharging the firearm at him knowing that there was a better than balanced risk that he could be seriously injured or killed." (at p104)

27. Except for the sentence in italics and the word "could" in the last sentence the direction is correct although, as I have previously said, I do not think that a reference to "better than balanced basis" is desirable. However, the sentence in italics when regard is had to the earlier passages in the charge is open to grave objection. It may have been a slip of the tongue. His Honour may have meant "wish" and thereby have intended to reproduce the statement from Archbold and Stephen which I have earlier set out. However, in view of the earlier passages in the summing up, I am not sure whether it was a slip and I cannot be sure that the jury would regard it as a slip. I agree with the majority in the Court of Criminal Appeal that this was not a case where it was necessary to direct the jury on malice of this kind, and I would also agree that the charge is not necessarily defective because such a direction was given, or at least that the giving of the direction on this kind of malice was not a miscarriage of justice. However, the form of the direction was erroneous in law in the ways to which I have referred and, this being so, there can be no question of applying the proviso. Such errors in a case of this kind must be regarded as a substantial miscarriage of justice. (at p105)

28. For these reasons I would grant special leave to appeal, allow the appeal, set aside the conviction and order a new trial. (at p105)

Orders

Special leave to appeal refused.