Macaree v The State of Western Australia - [2011] WASCA 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MACAREE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 207

CORAM: MARTIN CJ
PULLIN JA
MAZZA J

HEARD: 17 FEBRUARY 2011 & 25 MARCH 2011

DELIVERED : 30 SEPTEMBER 2011

FILE NO/S: CACR 71 of 2010
CACR 72 of 2010

BETWEEN: FRASER MACAREE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
File No  :INS 139 of 2009

Catchwords:

Criminal law - Appeal against conviction - Manslaughter - Deceased shot with crossbow - Whether misdirection on the degree of negligence required to constitute criminal negligence

Criminal law - Appeal against sentence - Manslaughter - Deceased shot with crossbow - Whether finding that the appellant deliberately discharged crossbow open on the evidence - Whether finding that the appellant deliberately discharged crossbow inconsistent with the jury's verdict of acquittal on murder charge

Legislation:

Crimes Act 1958 (Vic), s 568(1)
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 31(4)(a)
Criminal Code (WA), s 23A, s 244, s 266, s 268, s 270, s 279, s 279(1)(a), s 279(1)(b), s 280, s 622
Criminal Procedure Act 2004 (WA), s 92, s 99, s 110, s 118, s 120(2)
Criminal Procedure Bill 2004 (WA)

Result:

CACR 71 of 2010
Leave granted
Appeal dismissed

CACR 72 of 2010
Leave granted
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz & Mr D Dempster

Solicitors:

Appellant: Holborn Lenhoff Massey
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Agnew v The Queen [2003] WASCA 188
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Brown v The State of Western Australia [2011] WASCA 111
Callaghan v The Queen (1952) 87 CLR 115
Coates v The State of Western Australia [2009] WASCA 142
Cooper v The State of Western Australia [2009] WASCA 37
King v The Queen [2001] WASCA 198
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Petroff v The Queen (1980) 2 A Crim R 101
Quaid v The Queen [2011] WASCA 141
R v Adomako [1995] 1 AC 171
R v Bateman (1925) 19 Cr App R 8
R v Bourke [2003] QCA 113
R v Burns [2009] SASC 105; (2009) 103 SASR 514
R v Clark [2007] QCA 168; (2007) 171 A Crim R 532
The State of Western Australia v Butler [2009] WASCA 110
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilson v The State of Western Australia [2010] WASCA 82
Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339

REASONS OF THE COURT: The appellant seeks leave to appeal against conviction and sentence.
The appellant was charged with one count of murder, contrary to s 279 of the Criminal Code (WA). The charge in the indictment read:
On 19 February 2009 at Karratha [the appellant] murdered Christopher Joseph Halstead.
On 29 March 2010, the appellant was convicted after trial before Hall J and a jury of the alternative offence of manslaughter. On 28 April 2010, Hall J sentenced the appellant to 6 years' imprisonment with eligibility for parole, backdated to commence on 19 February 2009.

Background

The facts

A general summary of the facts is as follows. We will later refer, in greater detail, to some of the evidence, including the appellant's own testimony.
At the time of the offence, the appellant was living and working in Karratha.
On 13 February 2009, the appellant, Steven Bruce, and Mr Bruce's girlfriend of approximately 11 years were at licensed premises together. Mr Bruce left those premises after an argument with his girlfriend. The appellant and Mr Bruce's girlfriend stayed on and continued to drink. Later that night, the appellant went back to his home with Mr Bruce's girlfriend and had what was described at the trial as a 'one‑night stand'.
The next day, Mr Bruce learnt what had occurred and became upset and angry with both his girlfriend and the appellant. Mr Bruce sent some abusive and threatening SMS messages to the appellant and spoke to him on the telephone. Over the following days, Mr Bruce's anger lingered.
On 19 February 2009, Mr Bruce decided that he was going to confront the appellant at the appellant's house. That evening Mr Bruce met with Mr Halstead and told him what had happened between the appellant and his (Mr Bruce's) girlfriend. Mr Halstead offered to drive Mr Bruce to the appellant's house.
Mr Bruce and Mr Halstead drove to the appellant's house. Neither man was armed. Mr Bruce walked by himself from the car, through a carport, to the side door of the appellant's house. Mr Halstead remained outside. Mr Bruce yelled out for the appellant and banged hard on the door. Mr Bruce then entered the house a short distance and was met by the appellant's brother, Campbell Macaree. Angry words were exchanged between the two men. Mr Bruce demanded to see the appellant. Campbell Macaree responded to the effect that the appellant was not home and he told Mr Bruce to go. In fact, the appellant was at home and was in his bedroom. He heard the yelling and recognised the voice of Mr Bruce.
The appellant had two crossbows. He was experienced in their handling and operation. He picked up one of the crossbows and loaded it with a broad head or hunting bolt. The crossbow he used was a Horton brand. It is described in the manufacturer's operations manual as being 'a very powerful weapon and can be dangerous and deadly if mishandled': exhibit P39, p 3. A State witness, Christopher Dabovich, an expert in crossbows and their use, testified that a broad head was '[d]esigned for hunting to administer shock and blood loss' in order to kill: ts 681.
After the appellant loaded the crossbow with the broad head bolt, he cocked the bow by drawing back the crossbow string until it locked into place. The crossbow had a functioning safety lever which normally moved to 'safe' automatically when the crossbow was cocked. In order to fire the weapon, the safety lever had to be pushed forward to the 'fire' position. The appellant left his bedroom and confronted Mr Bruce with the crossbow. Mr Bruce immediately fled the house and ran down the driveway and onto the street. Any threat that Mr Bruce had posed to the appellant had, by then, dissipated.
At this point, Mr Halstead was standing in the driveway close to the appellant's vehicle. He was not doing or saying anything of an aggressive or threatening nature. The appellant told Mr Halstead to leave. The appellant then shoved Mr Halstead with the crossbow. The appellant pushed Mr Halstead around and then shoved the crossbow into Mr Halstead's back, causing him to stagger. Either as the appellant shoved Mr Halstead, or immediately after, the bolt was fired. The bolt went through the centre of Mr Halstead's chest, killing him within minutes.

The prosecution case at trial

The prosecution case was that the appellant acted in an aggressive rather than a defensive way towards both Mr Bruce and Mr Halstead. The prosecution submitted that the appellant was guilty of the crime of murder because he deliberately discharged the crossbow with an intention to cause death or bodily injury of such a nature as to endanger or be likely to endanger life: s 279(1)(a) and s 279(1)(b) of the Criminal Code. Alternatively, the prosecution submitted that the appellant was guilty of the crime of manslaughter. The State's case on manslaughter was put on two bases. First, the appellant would be guilty if he deliberately discharged the crossbow at Mr Halstead, but did not intend to kill or cause bodily injury likely to endanger life. Second, he would be guilty if, even though the pulling of the trigger was an unwilled act, he was criminally negligent in the management of the crossbow and thereby unlawfully caused Mr Halstead's death: s 266 of the Criminal Code and ts 1029.

The defence case at trial

The appellant submitted that he was guilty of neither murder nor manslaughter. The appellant's case at trial was that the discharge of the crossbow at Mr Halstead was an unwilled act. Alternatively, if the jury was satisfied beyond reasonable doubt that the discharge of the crossbow was a willed act, it was excused because Mr Halstead was a home invader who was wrongfully at the appellant's house for the purpose of assaulting him, and the use of the crossbow was necessary to cause Mr Halstead to leave the premises: s 244 of the Criminal Code. Further, the appellant had no intention to cause death or bodily injury that would endanger or be likely to endanger the life of a person. Finally, the appellant did not, in his management of the crossbow, behave in a way which amounted to criminal negligence.

The effect of the jury's verdicts

The acquittal on the charge of murder could be explained on the basis that the State had failed to prove either that the discharge of the crossbow was a willed act or, if the discharge of the crossbow was a willed act, that the appellant had the intention necessary to establish the crime of murder.
The conviction on the charge of manslaughter could be explained on the basis that the appellant discharged the crossbow by a willed act without the intention necessary to establish murder. Alternatively, the verdict could also be justified on the basis that the discharge of the crossbow was not a willed act, however, the appellant was guilty of criminal negligence in his use or management of the crossbow. No special verdict was taken. It is not known on what basis the jury arrived at its verdict.
It is clear from the verdicts that the jury was satisfied that the appellant was not acting in defence against a home invasion. Nothing more needs to be said in these reasons about this matter.

The ground of appeal against conviction

The appeal against conviction only concerns the directions that his Honour gave with respect to criminal negligence. The ground relied upon by the appellant is as follows:
The learned trial Judge erred in law by failing to give adequate directions to the jury about the degree to which they had to find that the appellant failed to take to use [sic] reasonable care and to take reasonable precautions to avoid danger to the life, safety, or health of any person arising out of his control of the crossbow before he could be convicted of manslaughter.
Alternatively, such failure occasioned a miscarriage of justice.

The relevant statutory provisions

Chapter XXVIII of the Criminal Code includes the homicide provisions. Section 268 of the Code provides:
Killing of a human being unlawful
It is unlawful to kill any person unless such killing is authorised or justified or excused by law.
Section 270 states that any person who causes the death of another is deemed to have killed that other person.
Section 279 of the Code sets out the offence of murder. Relevantly to this case, murder is defined in s 279(1)(a) and s 279(1)(b) as the unlawful killing of another person with the intention to cause the death of the deceased or another person, or an intention to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed or another person. The section also provides that a person charged with murder may be convicted of the alternative offence of manslaughter.
The offence of manslaughter is set out in s 280 of the Criminal Code as follows:
Manslaughter
If a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter and is liable to imprisonment for 20 years.
Thus, where someone is unlawfully killed, but at the time of the killing the offender did not have any of the intentions specified in s 279, the offender is guilty of manslaughter.
As we mentioned earlier, the appellant's case at trial was that the discharge of the crossbow was not a willed act. At the time of the offence, s 23A of the Criminal Code read:
Unwilled acts and omissions
(1)This section is subject to the provisions in Chapter XXVII relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
Within ch XXVII of the Criminal Code is s 266. At the time of the offence, that section read:
Duty of persons in charge of dangerous things
It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.
The combined effect of these provisions is that a person may be criminally responsible for an act which occurs independently of the exercise of his or her will if the act is done in breach of the duty imposed by s 266 of the Criminal Code. If a person dies as a consequence of a breach of that duty, the person who committed the breach is held to have caused that death and thereby killed him or her. Such a killing would be unlawful unless authorised, justified or excused (bearing in mind that s 23A has no application). One of the elements of manslaughter is that the killing must be unlawful. Therefore, where the prosecution allege manslaughter by criminal negligence, a breach of the duty imposed by s 266 becomes an element of the offence: Callaghan v The Queen (1952) 87 CLR 115, 119.

The trial judge's directions

The learned trial judge made it clear to the jury that it was bound to accept his directions about the law: ts 1116.
As it was open to the jury to take a number of paths of reasoning in the case, his Honour provided each juror with a single page document that he described as a decision tree. In doing so, he said to the jury that the document set out 'the essential issues' for the jury to decide: ts 1126. A copy of the decision tree is annexed to these reasons. No direction was given to the effect that the content of the decision tree was subject to his Honour's oral directions. However, his Honour took the jury through the decision tree, that is, as he gave his oral directions he referred the jury to the relevant portion of the decision tree.
From that document, the process of reasoning which his Honour suggested the jury might adopt was to first decide the issue of whether the discharge of the crossbow at Mr Halstead was a willed act on the part of the appellant. If the jury was not so satisfied, then it was required to consider the issue of criminal negligence. The part of the document relevant to this issue is on the right‑hand side of the page.
The question posed in the decision tree on the issue of criminal negligence was, '[a]re you satisfied beyond reasonable doubt that [the appellant] failed to use reasonable care or take reasonable precautions to avoid danger to life, health or safety when in control of the crossbow?' If the answer to the question was 'yes', the appellant would be guilty of manslaughter. If the answer to the question was 'no', the appellant would be acquitted.
The question reflects the statutory language of s 266. It accurately identified the issue in dispute with respect to criminal negligence. There was no real issue at trial as to whether the appellant owed a duty to Mr Halstead or that he was in control of the crossbow or that the crossbow was a dangerous thing or that he had breached that duty. The critical issue to be decided by the jury was whether the State had established beyond reasonable doubt that the appellant had breached the criminal standard of negligence.
His Honour began his directions on criminal negligence at ts 1132. He began by drawing the jury's attention to the right‑hand side of the decision tree. He said:
Well, I then want to take you back up to the top of the diagram, and I've been taking you down the left‑hand side. We'll now go down the right‑hand side. I told you earlier that a person could cause the death of another if they fail to use reasonable care when in control of a dangerous thing. The law provides that it is the duty of any person who has in his charge or under his control anything which could endanger life, health or safety. And their duty is to use reasonable care and take reasonable precautions to avoid such danger. If a person fails to perform that duty, they are held to have caused any death which thereby results (ts 1132).
His Honour then gave the direction as to the standard of negligence required to constitute a breach of the duty he had just described. It is this direction which is criticised by the appellant and is at the heart of the ground of appeal.
His Honour said:
Now, to justify a criminal conviction on the basis of that failure of duty, the degree of negligence must be grave. It's not simply any neglect that would justify a criminal conviction (ts 1132 ‑ 1133).
His Honour did not repeat the direction as to the standard of negligence, nor did he refer to it again during the course of his directions on criminal negligence. It is not mentioned in the decision tree.
His Honour's other directions on the issue are set out at ts 1133 ‑ 1135. When he referred to the issue of breach, it was couched in terms of whether the appellant failed to use reasonable care. For example, at ts 1134, his Honour said:
[Y]ou need to ask whether [the appellant] failed to use reasonable care when in control of the bow[.]
At ts 1135 ‑ 1136, his Honour said:
Now, in order to find [the appellant] guilty of manslaughter on this basis [that is criminal negligence] you would have to be satisfied beyond reasonable doubt that he failed to use reasonable care or to take all reasonable precautions when he was in control of the crossbow. If you were so satisfied you'll see that that would result in an answer of 'yes' and you would find him guilty of manslaughter. If the answer was 'no' then he would be not guilty and that would mean not guilty of either murder or manslaughter.
His Honour referred to the question of breach later in his summing up. At ts 1180, his Honour said, referring once again to the decision tree:
And then, of course, the other issue that I have canvassed with you should you reach this point in the diagram is about a failure to use reasonable care and precautions.
At ts 1181, his Honour said:
Now, I have canvassed much of the evidence that relates to that issue already, but you would have to be satisfied beyond reasonable doubt of a failure to exercise reasonable care before you could answer that question on the right of the diagram 'yes'.
His Honour comprehensively and accurately summed up the respective cases. In the course of doing so, his Honour said of the defence case, at ts 1186 ‑ 1187:
[Defence counsel] then referred to manslaughter in the context of negligent manslaughter and said you should look at all the circumstances, that criminal negligence involves a grave departure from a standard of care owed, flagrant or to such a degree as to deserve criminal conviction, and said to you that in the circumstances in which [the appellant] was, the speed of events, his fear, and his honest and reasonable mistaken belief that the bow was on safety mean that you should not find [the appellant] guilty of negligent manslaughter.

The request for redirection

Immediately after the jury retired to deliberate, defence counsel sought a redirection from his Honour as to the standard of negligence the State had to establish in order for the appellant's conduct to constitute a breach of the duty in s 266. Defence counsel submitted that the question posed in the right‑hand side of the decision tree concerning criminal negligence was misleading, in that it did not sufficiently describe the gravity of the breach which is required for a finding of criminal negligence.

His Honour declined to redirect the jury.

The appellant's submissions

Mr Vandongen SC submitted on behalf of the appellant that his Honour's direction as to the correct standard of negligence which must be established to constitute criminal negligence was too brief and was inadequate. The inadequacy was said to have arisen because:
(a)his Honour did not draw a distinction between the degree of negligence required in a criminal case as opposed to a civil case. It was said that although his Honour used the word 'grave' to describe the nature of the breach, it left open the possibility that although the degree of negligence could be described as 'grave', it would nevertheless not be so blameworthy as to be punishable as a crime.
(b)the decision tree was deficient because:
(i)it made no mention of the degree of negligence the prosecution had to prove to establish criminal negligence; and
(ii)it suggested that the degree of negligence the prosecution had to establish was the civil standard of negligence.
Mr Vandongen submitted that if the ground of appeal was upheld, there was no room for the application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA). He submitted that the evidence was insufficient to enable the court to itself conclude, beyond reasonable doubt, that the appellant was guilty of manslaughter.
Mr Vandongen then submitted that even if the court was satisfied beyond reasonable doubt of the appellant's guilt, the proviso should not be applied because his Honour's error was in respect of an element of the offence and, as such, would not normally be subject to the application of the proviso. Further, senior counsel contended that his Honour's error was a serious denial of procedural fairness and a breach of the essential presuppositions of a fair trial such that even if the court was satisfied beyond reasonable doubt of the appellant's guilt, a retrial should nevertheless be ordered. In support of this submission, Mr Vandongen referred the court to s 92 of the Criminal Procedure Act 2004 (WA), arguing that the section provided the appellant with a statutory entitlement to have the issues of fact raised by his plea of not guilty tried by a judge and jury and that his Honour's error deprived him of that entitlement.

The respondent's submissions

It was submitted on behalf of the respondent that his Honour's oral direction accurately conveyed to the jury the standard of negligence necessary to constitute manslaughter. It was submitted that the decision tree would not have misled the jury. It was contended that the ground of appeal should be dismissed.
However, it was submitted that if the ground was upheld, the proviso should be applied. It was submitted that this court should find that the evidence established beyond reasonable doubt that the appellant deliberately fired the crossbow, albeit without any intention to cause death or bodily injury that would endanger or be likely to endanger the life of a person. Alternatively, it was contended that the appellant was guilty of criminal negligence. It was argued that any error did not amount to a serious denial of procedural fairness or a breach of an essential presupposition of a fair trial.

The standard of negligence required to constitute a breach of duty under s 266 of the Criminal Code

The question of the standard of negligence required to constitute a breach of the duty in s 266 'to use reasonable care and take reasonable precautions' was determined by the High Court in Callaghan. In their joint judgment, Dixon CJ, Webb, Fullagar and Kitto JJ held that although the words used to describe the duty 'smack[ed] very much of the civil standard of negligence', that is not the standard to be applied to an alleged breach of s 266. The correct standard to be applied is the same as set by the common law. What is required is that the degree of negligence is so serious that the trier of fact regards it as deserving of punishment as a criminal offence: Callaghan (121 ‑ 124).
Trial judges directing juries have frequently used various epithets to convey the seriousness of the conduct which must be proved before an act or omission is capable of being regarded as criminally negligent. Words such as 'culpable', 'gross', 'criminal' and 'grave' are often used. Commonly, especially in cases involving the driving of motor vehicles, a jury is told that they are not deciding the case as if it were a civil case for damages. Whatever epithets or comparisons are used, if they are used at all, the message that must be brought home to the jury is that the task that they are concerned with is whether the appellant's breach of duty was so serious that in their opinion it constituted a crime: Agnew v The Queen [2003] WASCA 188 [52]; R v Clark [2007] QCA 168; (2007) 171 A Crim R 532 [38], [40]; R v Bateman (1925) 19 Cr App R 8, 11 ‑ 12; and R v Adomako [1995] 1 AC 171, 187.
We reject the submission that the direction was too brief. His Honour's direction is certainly short, but brevity in directions to a jury is a virtue rather than a vice. What really matters is the content of the direction. In the two sentences immediately preceding the impugned direction, his Honour correctly explained to the jury the duty imposed by s 266 and the consequences of a failure to perform that duty, in these terms:
And their duty is to use reasonable care and take reasonable precautions to avoid such danger. If a person fails to perform that duty, they are held to have caused any death which thereby results.
In the first sentence of the impugned direction, his Honour told the jury:
Now, to justify a criminal conviction on the basis of that failure of duty, the degree of negligence must be grave (ts 1132). (emphasis added)
The duty referred to in this sentence is the duty to take reasonable care. His Honour is clearly instructing the jury that a 'grave' degree of negligence is required before the appellant could be held criminally responsible for a failure of the duty to take reasonable care.
The word 'grave' is a word, the ordinary meaning of which, in its present context, is 'highly serious': The New Shorter Oxford English Dictionary (1993) 1135. It is not a word which the jury would have been unfamiliar with. It did not require elucidation or definition. It is a word which sufficiently conveyed to the jury the seriousness of the breach of duty which the prosecution had to establish to prove guilt. His Honour gave emphasis to the word by adding that '[i]t's not simply any neglect that would justify a criminal conviction': ts 1132 ‑ 1133. If the jury concluded that the breach of duty was grave, that conclusion inevitably involved a judgment that the conduct was more than that required to establish negligence in a civil case. Accordingly, to give such a direction was unnecessary.
It is important that his Honour began the direction with the words 'to justify a criminal conviction …', and ended with the words '… would justify a criminal conviction'.
It was not the only time that his Honour used the word 'grave' in the context of criminal negligence. He used it when reminding the jury of the defence submissions on this issue.
When viewed as a whole, his Honour correctly instructed the jury as to the standard of negligence required to establish criminal negligence. Contrary to the appellant's submission, his Honour's direction was correct and not inadequate.
We now turn to the appellant's submissions concerning the decision tree.
The tradition of the common law is that criminal proceedings are primarily oral in character. As a result, trial judges have always orally summed up a case to the jury. However, it is undeniable that jury trials have become longer and more complex. The task of the jury is more difficult now than it has been in the past. The quality of justice will frequently be enhanced by a jury being given written materials which assist its comprehension of the evidence, the law that has to be applied, the issues that have to be decided and the verdicts which are open.
There is nothing in the common law which prevented a judge from providing a jury with written materials to aid their comprehension of a case: Petroff v The Queen (1980) 2 A Crim R 101. However, if there was any doubt about a trial judge's ability to provide a jury with written materials, that doubt is dispelled by s 110 of the Criminal Procedure Act, which provides:
(1)On the application of a party or on his or her own initiative, the judge may order that the jury be given, on any conditions the judge orders, any record (including any document in the court's record) or thing that may assist the jury to understand the issues or the law, or to understand and assess the evidence.
(2)Such an order may be made at any time in a trial before the jury gives its verdict.
The words of the section are clear. The section gives a trial judge in a jury trial a discretion to provide the jury, at any stage of the trial, with 'any record … or thing' designed to assist the jury 'to understand the issues or the law, or to understand and assess the evidence'. That power must be exercised judicially so as not to give rise to a miscarriage of justice: Cooper v The State of Western Australia [2009] WASCA 37 [19]. Subject to this, whether and how the power is exercised will depend very much on the circumstances of the particular case and is something best decided by the trial judge. The discretion will not lightly be interfered with on appeal.
Because the oral tradition of criminal trials remains, whenever a document such as a decision tree is used, a jury will generally be directed that the document is not a substitute for the trial judge's oral instructions, nor does it supplant those instructions. The reason for such a direction is that a jury may regard what is set out in the document as being more authoritative than the oral instructions, bearing in mind that, as the document will usually accompany the jury into the jury room (as it did in this case), it is likely to be referred to by the jury during their deliberations: Petroff v The Queen (113, 116); R v Bourke [2003] QCA 113 [22]; and R v Burns [2009] SASC 105; (2009) 103 SASR 514 [19] ‑ [26]. Of course, although it hardly needs to be said, it is the duty of the trial judge to ensure that the contents of any document given to the jury are correct.
In the present case, the provision of the decision tree to the jury was entirely appropriate, given the various paths they might take to reach a verdict on the charge. Mr Vandongen did not argue to the contrary. His primary argument was that the question asked in the right‑hand column of the decision tree did not accurately reflect the standard of negligence required to amount to manslaughter, because it is expressed in terms of whether the appellant 'failed to use reasonable care'. The argument was that the question gave rise to the risk that the jury may have adopted a standard of negligence less than that required by the criminal law.
It is readily accepted that the question posed in the decision tree, although largely reflecting the statutory language of s 266 of the Criminal Code, does not state the question the jury was required to answer, having regard to the way in which s 266 has been interpreted by the High Court. This observation does not lead to the inevitable conclusion that the appeal must be allowed.
The contents of the decision tree cannot be viewed in isolation. For the reasons that we have given, his Honour gave a correct direction as to the standard of negligence required to sustain a conviction for manslaughter based on s 266 of the Criminal Code. Further, and in our view most importantly, at the same time as the oral direction was given to the jury, each juror had in front of them the decision tree and was being instructed in relation to the meaning of what was written on it. In these circumstances, it could not reasonably have been lost on the jury that the answer to the question posited in the box on the right‑hand side of the decision tree could only be answered in the affirmative if it decided, beyond reasonable doubt, that the degree of negligence required was grave. While, out of caution, it may have been desirable for his Honour to instruct the jury that his oral directions took precedence over the decision tree, such a direction was not necessary in this case. Given the way that his Honour used the decision tree and explained its contents to the jury, the jury could not reasonably have understood the degree of negligence required to sustain a criminal conviction as being anything other than grave. For these reasons, Mr Vandongen's submission that the question posed in the right‑hand box of the decision tree gave rise to a risk that the jury adopted a standard of negligence less than that required cannot be accepted.
The ground of appeal has not been made out.

Would the proviso have been applied?

Although it is not necessary to consider the application of the proviso, each party made oral and written submissions in relation to the issue. Had it been necessary to consider the proviso, we would have, for the following reasons, applied it and dismissed the appeal.
Section 30(3) of the Criminal Appeals Act states that this court must allow an appeal where, in its opinion, the conviction should be set aside because of a wrong decision on a question of law or where there has been a miscarriage of justice. In this case, had the ground of appeal succeeded, there would have been both a wrong decision on a question of law and a miscarriage of justice.
Section 30(4) of the Criminal Appeals Act states:
Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred [the proviso].
The respondent has the onus of establishing that, despite any error, no substantial miscarriage of justice has occurred.
In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the High Court examined the proviso contained in s 568(1) of the Crimes Act 1958 (Vic), which is, in effect, indistinguishable from s 30(4) of the Criminal Appeals Act. The court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) emphasised the importance of the statutory language, and that statements made in other cases as to the task a court is required to perform when asked to apply the proviso may mask the true nature of this task: Weiss [31] ‑ [33]. The danger of masking this task was said to be 'acute' when the task is expressed by reference to what a jury would have done: Weiss [34].
The court identified the task in these terms:
The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred' [35].
When performing this task, the court said that three fundamental propositions must not be obscured:
First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].
The manner in which the task is to be undertaken was described as follows:
[The] task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [41]. (citations omitted)
A number of matters were emphasised by the court. First, the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict: Weiss [43]. Second, it is necessary to keep, at the forefront of consideration, the accusatorial character of criminal trials and the criminal standard of proof: Weiss [43]. Third, the permissive language of the proviso, that is that 'the Court … may … dismiss the appeal', is important: Weiss [44]. Fourth, while there is no single universally applicable description of what constitutes 'no substantial miscarriage of justice', it cannot be said that no substantial miscarriage of justice has occurred unless the appellate court is persuaded that the evidence proved beyond reasonable doubt the accused's guilt of the offence on which the jury returned its verdict: Weiss [44]. In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ referred to this negative proposition, warning that it:
… must not be treated as if it states what suffices to show that no substantial miscarriage has occurred. To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].
There will be some cases when it will be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt. Examples of such cases are 'where there has been a significant denial of procedural fairness at trial', and where the errors or miscarriages of justice occurring in the course of the trial amount to such a serious breach of the presuppositions of a trial as to deny the application of the proviso: Weiss [45] ‑ [46]. The circumstances in which there might be a substantial miscarriage of justice, notwithstanding the appellate court's satisfaction as to the guilt of the accused, are not closed: Wright v The State of Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [216].
We have undertaken a complete review of the trial record. We have already provided a general summary of the evidence given at trial. We will now set out in greater detail some of the evidence given at trial.

Evidence of Steven Bruce

Mr Bruce testified that after he found out about his girlfriend's one‑night stand with the appellant, he rang the appellant and told him that he (Mr Bruce) 'was going to punch his head' next time he saw him: ts 235. He also admitted sending the appellant text messages in which he called him 'a dog' and, in another, he said, '[y]ou fucked up my life, I'll fuck up yours': ts 238.
Mr Bruce said that after work on 19 February 2009, he and Mr Halstead drove to the appellant's house. Mr Bruce said that after he got out of the car he went and banged on the carport door. The door opened and he saw the appellant's brother, Campbell Macaree.
Mr Bruce said that he told Campbell Macaree that he wanted to see the appellant. Mr Bruce said to Campbell Macaree, 'Your brother's fucked me over. I just want to see him at the front': ts 242.
Mr Bruce said that he saw the appellant come from the back of the kitchen with a crossbow. Mr Bruce said that he turned around and took off: ts 242.
Mr Bruce's evidence was that as he took off down the driveway, he turned around and saw Mr Halstead. He said that when he reached the road, he looked back and saw Mr Halstead put his hands up in the air and say to the appellant, '[p]ut it down, mate': ts 242.

Mr Bruce said that the appellant discharged the crossbow into the chest of Mr Halstead. He denied that Mr Halstead had been turned around by the appellant poking him with the crossbow: ts 331.

Evidence of Campbell Macaree

Campbell Macaree is the appellant's brother.
Campbell Macaree said that when the appellant emerged from his room with the crossbow, Mr Bruce ran out the front door. Campbell Macaree said that he followed the appellant outside, where he saw Mr Halstead: ts 486.
Campbell Macaree said that he and the appellant told Mr Halstead 'to piss off': ts 488. Campbell Macaree said that the appellant gave Mr Halstead a push with the crossbow, turning him around. However, Mr Halstead did not react. Campbell Macaree said that the appellant then prodded Mr Halstead in the back. Campbell Macaree said that the crossbow went off '[s]traightaway': ts 536. Campbell Macaree said in cross‑examination that when the crossbow went off, the appellant was shocked: ts 537. Later, he agreed that the appellant appeared stunned: ts 539.

Evidence of Christopher Dabovich

Mr Dabovich was called by the prosecution and is an expert in crossbows and their use. His expertise was not challenged.
In examination‑in‑chief, Mr Dabovich said that cocking a crossbow involved a process of holding the crossbow string and drawing it back to a latch or trigger: ts 677. In relation to the Horton crossbow, Mr Dabovich said that when the string goes into the latch, it automatically engages the weapon's safety catch: ts 678.
He said that the only way to fire the weapon was to turn the safety catch off by pushing a lever forward and then pulling the trigger: ts 679.
Mr Dabovich tested the Horton crossbow and found that it was fully functional, and operated to the manufacturer's specifications. He found that the trigger operated 'perfectly': ts 679.
In cross‑examination, he said that he had no experience of cocking a Horton crossbow without the safety catch being engaged: ts 688.

Evidence of Dr Judith McCreath

Dr McCreath was the forensic pathologist who conducted the autopsy on Mr Halstead. Although she was unable to say with certainty whether the crossbow bolt entered Mr Halstead's chest or back, she agreed, having consulted her colleagues, Dr Margolius, Dr Cadden and Dr White, that the most favoured view was that the bolt entered Mr Halstead's back and exited his front: ts 704, 716.

Evidence of Scott Egan

Mr Egan is a forensic scientist. He conducted DNA testing on the crossbow. That testing revealed DNA which matched the profile of Christopher Halstead on the 'front middle outside' of the weapon: ts 727.

Evidence of Senior Constable Robert Meeks

Senior Constable Meeks is a firearms expert, but with no prior familiarity with crossbows: ts 765.
He conducted a number of tests on the crossbow, designed to establish if it was functioning properly. These tests were the drop test, the strike test, the trigger pressure test, the safety device test and the trigger guard test.
Constable Meeks found that the crossbow did not spontaneously fire when it was dropped or struck with a rubber mallet: ts 744 ‑ 745. He found that the trigger pressure of the crossbow was 2.6 kgs, which he described as a 'good weight for a trigger on a firearm': ts 742.
During the course of testing the crossbow's safety mechanism, Constable Meeks found that when the bowstring was drawn using a slow and controlled pull, it was possible for the bowstring to engage the trigger latch, but not the safety device: ts 745 ‑ 747. In other words, it was possible to cock the crossbow without the safety device moving automatically to the safe position: ts 770. However, Constable Meeks said that when the bowstring was in this position which he described as 'the halfway position', the weapon did not fire: ts 780.
The manual to the Horton crossbow was tendered through Constable Meeks: exhibit P39.
The manual sets out 11 safety precautions. Relevantly to this case, they are:
1.Always remember to treat your crossbow with the same respect due any sporting arm: Your crossbow is a very powerful weapon and can be dangerous and deadly if mishandled.
2.Always point your crossbow in a safe direction: Never, under any circumstances, point your crossbow at anything you do not intend to shoot!
…
5.Never cock or load your crossbow until you are ready to shoot and are sure of your target: …
6.Never release the safety until you are ready to fire: …
…
8.Never, under any circumstances, shoot your crossbow while behind or directly along side others: …
…
10.Never load the crossbow with an arrow until you're ready to fire: … (exhibit P39, p 3).
A page of the manual is devoted to the subject of cocking the crossbow. Paragraph 4 is in these terms:
When cocked, the trigger safety automatically engages and the safety lever moves to the 'safe' position. However, after cocking, check the safety to verify if this has occurred. NEVER ASSUME THE SAFETY IS ON!!! (exhibit P39, p 4). (original emphasis)
Under the heading of 'Loading and Shooting', the manual sets out the correct way in which a bolt is to be loaded into the crossbow. After explaining how to load the crossbow, the manual states:
THE CROSSBOW IS NOW LOADED.
Handle with extreme caution (exhibit P39, p 5).
Constable Meeks explained that it was possible to unload the crossbow without firing it, by shifting the safety to fire, then holding the bowstring, and once the trigger was pressed, the bowstring could be held and moved forward in a controller manner: ts 760.

Evidence of the appellant

The appellant was interviewed by police at 9.42 pm on 19 February 2009: exhibit P40. That interview was broadly consistent with the appellant's evidence at trial.
In examination‑in‑chief, the appellant explained that on four occasions in the years prior to 19 February 2009, he had been assaulted and had sustained, in the course of some of these assaults, quite serious injuries. He said that he was 'scared' when he realised that Mr Bruce was in the house: ts 896 ‑ 900.
He said that he decided to get Mr Bruce to leave by intimidating him with a loaded crossbow: ts 901 ‑ 902. He understood that when he cocked the crossbow, the safety catch would be automatically engaged: ts 902. However, there had been a few times in the past when he had gone to fire the weapon and realised that the safety catch was off and he assumed that he must have already turned it off without thinking: ts 902.
He said that once he had cocked the weapon, he assumed the safety catch was on: ts 906.
The appellant said that after he had cocked the crossbow, while he was still in his room, there was a short period where the commotion elsewhere in the house calmed down. He said that he recalled thinking, 'Oh, I can unload it'. In order to unload the crossbow, it was necessary for the safety catch to be turned off. However, Mr Bruce 'started arcing up again'. After that, the appellant said that he walked into the kitchen where he confronted Mr Bruce. He said that he did not know, when he had the thought that he could unload the crossbow, whether he had touched the safety catch or not. He said that it was possible that he did: ts 909.
The appellant said that once Mr Bruce had left the house, he went to close the door. At this point, he saw Mr Halstead standing at the front left corner of a vehicle parked in the driveway: ts 909 ‑ 910. The appellant said that he told Mr Halstead to 'piss off'. He said that Mr Halstead took a step towards him. The appellant said that he then walked towards Mr Halstead. The appellant said, 'I thought he [Mr Halstead] was going to attack me': ts 911.
The appellant's testimony as to what then happened is as follows:
And did you - what did you do with the crossbow‑‑‑I turned him with it, with the stirrup on his shoulder and gave him a real shove with it. That put him off balance and he stumbled forward and then I gave him another push to go in the right direction, and that's when it went off.
Right. Well, we'll - we'll get to what then happened, but how were you holding the crossbow‑‑‑Same way as I usually would.
Mm‑‑‑Hand on the foreshock and one hand on the - - -
Can you demonstrate for us‑‑‑Just the normal way. Pushed him away and then gave him a shove.
Okay. So you - you first - the first push with the crossbow, just do it again‑‑‑To the side like that from me shoulder.
And you - you - you use the crossbow to more or less spin him around‑‑‑Yeah.
Yes, and the second one‑‑‑Was a shove in the back.
A shove in the back, yes. You - of course, when you walked out the door you had the crossbow, right‑‑‑Yeah.
Did he react in any way to the crossbow‑‑‑No.
When you shoved him in the back, that's the second time you - you used the crossbow physically, what occurred‑‑‑That's when it went off.
Yes. What was your reaction when it went off? I mean, it's difficult to say ‑ ‑ ‑‑‑‑I still ‑ ‑ ‑
‑ ‑ ‑ now, 12 months later, but ‑ ‑ ‑‑‑‑I still don't even know, really. I don't know if I'd known that it had hit him or not. I sort of - it's hard to explain. I - it didn't really click until I'd gone inside and my brother said, 'You've shot him.'
LOVITT, MR: Yes. Well, you'd prodded him in the back, the thing had gone off‑‑‑Yeah.
Did you see him stagger and fall‑‑‑No.
What did you do as soon as the crossbow discharged‑‑‑I went to go back inside (ts 913 ‑ 914).
The appellant expanded upon what he said, in the following exchange with his counsel:
LOVITT, MR: Right. Now, when the crossbow went off do you know where your finger was‑‑‑No.
Do you know whether it was on the trigger‑‑‑Well, it would have had to have been for it to go off. It won't go off ‑ ‑ ‑
You - well, you -- ----- -- any other way.
You - you've heard the evidence from the experts‑‑‑Yeah.
And - and do you - do you agree that as far as you're aware it wouldn't go off unless you'd ‑ ‑ ‑‑‑‑No, it wouldn't.
- - - pressed the trigger---I've - I've dropped it before. I've had it fall off the bonnet before when it's cocked, not - with a bolt in there, fall off onto the ground. It never went off.
Yes, righto. So when you are holding it and pushed and then prodded the - the deceased Chris Halstead with the - the crossbow did you have any intention of shooting him with it‑‑‑No.
Any intention whatsoever---None.
What did you think it was on? I mean, if you stopped to think, what did you think it was on - fire or safety‑‑‑Well, safety.
Yes‑‑‑I wouldn't have tried to push him if it was off - I wouldn't have tried to push him if it was off safety.
Yes. Does it need an enormous amount of - as far as you're concerned and you're the person who's experienced with that weapon, does it need an enormous amount of pressure for the trigger to be discharged‑‑‑No.
Yes. And were you conscious of your finger being on the trigger when you pushed him with the crossbow‑‑‑No.
What was your state of mind at that stage as far as the whole set of circumstances? You know, you've come out at the door. You see him. Bruce, you don't know where he is. He's where he is. He reacts the way or doesn't react perhaps but does and doesn't do what you say he does and doesn't do, that's Chris. And what's your state of mind at that stage‑‑‑I don't know. I just wanted them gone.
LOVITT, MR: Mm‑‑‑Just wanted them gone.
Yes. Well, you've heard Bruce's account‑‑‑Yeah.
Bruce's account is that you've come out. He originally told the police two steps but here he said it perhaps was about four. You've come out and then from a distance of three or four metres away - and this all happens in five seconds from when you walk out of the premises. You walk out and in five seconds you've come out, shot him from three or four metres away, front‑on, and then just calmly walked back in. Is that remotely true‑‑‑No.
Is there any possibility that you would have done something like that‑‑‑No.
And did you - did you mean for Halstead to be hurt at all‑‑‑No.
What did you want to happen‑‑‑I just wanted them to go.
Well, the Crown put to you - well, you decided that, because he wouldn't go, you - something went off in your head and you decided to, you know, force him to go. What do you say to that? Force him in the sense of discharge - deliberately discharge the crossbow. Any possibility that you did that‑‑‑No (ts 915 ‑ 916).
In cross‑examination, the appellant agreed that he was 'pretty proficient' with the crossbow and that he had familiarised himself with the manufacturer's manual, including the safety precautions: ts 921 ‑ 922. The appellant was then taken through the safety precautions in the manufacturer's manual in the following way:
Okay. So you'd agree that you have to treat - you have to remember to always treat your crossbow with the same respect you would any other weapon. Is that right‑‑‑That's right.
Because, you know, you'd accept that it's a dangerous and deadly weapon‑‑‑Absolutely, yeah.
Particularly if it's mishandled. You'd agree with that‑‑‑Yeah, I would.
And you'd agree you should never - you should only ever point your crossbow in a safe direction. Is that right‑‑‑Yes.
And you shouldn't ever point it at something that you don't intend to shoot. You'd agree with that‑‑‑Yeah, I would.
You did point it at people this - on the 19th, didn't you‑‑‑Different circumstances to what's usually - it's usually being used for.
PETRUSA, MS: Right. But you appreciated you shouldn't point it at something you don't intend to shoot‑‑‑Absolutely, yeah.
Are you sure you didn't intend to shoot Mr Bruce‑‑‑Yes.
But you pointed it at him‑‑‑Yeah, I did.
You certainly pointed it at Mr Halstead, didn't you‑‑‑Yes.
Intended to shoot him, didn't you‑‑‑No.
Now, you'd also agree that you shouldn't ever cock or load the crossbow until you're ready to shoot‑‑‑Under normal circumstances, yes.
And you'd agree you shouldn't release the safety until you're ready to shoot? You'd agree with that‑‑‑Yes.
And you should - you'd agree that you should never fire it when you're behind or alongside any people---I do.
That's right, isn't it‑‑‑Yeah.
Now, you - you're also aware that you shouldn't - the limbs of the crossbow - that is those two little curved parts at the front‑‑‑Yes.
You shouldn't interfere with them either at any point, should you, after you've cocked and loaded it‑‑‑No.
That could be dangerous, couldn't it---Yes.
And you shouldn't actually put your bolt or arrow in until you're ready to fire, even after you've cocked it. That's right, isn't it‑‑‑No, you put that in there before you line up your shot, yeah.
But you can cock it and leave it like that‑‑‑Yes. Yeah.
And then when you're ready in goes the bolt‑‑‑Yeah.
And then you can fire away‑‑‑Yep.
You can do that pretty quickly, can't you, load that bolt into that crossbow ‑ ‑ ‑‑‑‑Yes, I can.
‑ ‑ ‑ after you've cocked it‑‑‑Yep.
You could carry it in one hand, the crossbow and the - the bolt, and walk around with it cocked and then very quickly in it goes and off you - you can take your shot, can't yo---u‑‑‑I haven't tried it.
Not in all the target practice you've been doing, didn't try that‑‑‑Yes, but that's under - not rushed. It's not a rushed sort of situation.
All right. So you didn't try and see if you could be Quick Draw McGraw ‑ ‑ ‑‑‑‑No.
‑ ‑ ‑ type thing with your crossbow. Is that right---No.
Okay. The manual also told you you were to never assume that the safety was on. That's right, isn't it‑‑‑Yes, that is right.
And you - your practice was to check the safety. Is that right‑‑‑Yes.
Now, correct me if I'm wrong, but you've told us that you weren't - didn't have any appreciation of the fact that it was possible to - to cock the crossbow and have - not have the safety move across‑‑‑No, I didn't (ts 922 ‑ 924).
In later cross‑examination, the appellant agreed that Mr Halstead had not threatened him or gestured with his arms in any way towards him: ts 947. He further agreed that when he saw Mr Halstead leaning against the car in the driveway, he (Mr Halstead) was not doing anything: ts 948. He accepted that his finger must have been on the trigger when the crossbow went off: ts 954.
The appellant said that after he discharged the crossbow, he called the ambulance. It was not challenged that he told the triple zero operator that there had been an accident and that the person responsible was no longer at the scene: ts 954 ‑ 955.
The appellant accepted that he had used a loaded dangerous weapon to prod Mr Halstead, but maintained that he did not intentionally kill him: ts 959.
In re‑examination, he said that when he prodded Mr Halstead with the crossbow, it did not occur to him that the weapon was off safety: ts 959.

Analysis of the evidence

It is important to begin any analysis of the evidence by acknowledging that it must be subject to the jury's verdict of acquittal on the charge of murder. We are obliged to examine the evidence from the perspective that the jury found the appellant guilty of manslaughter.
The following facts are in no doubt:
(a)The crossbow was in proper working order.
(b)The appellant loaded the crossbow and cocked it in his bedroom.
(c)In that loaded and cocked state, he used it to prod and push Mr Halstead's upper body.
(d)The weapon did not discharge spontaneously, that is, it did not discharge without the trigger being pulled.
(e)The weapon was fired by the pulling of the trigger.
(f)At the time it was fired, the crossbow was either up against Mr Halstead's upper back or within a very short distance of it. Either way, if the weapon discharged, the bolt was bound to hit Mr Halstead in a vital part of his body with its full lethal force.
The primary question of fact is whether the trigger was pulled intentionally, that is, by way of a willed, conscious act.
The appellant's consistent position is that he did not intentionally pull the trigger. In essence, he said that he was in a stressful situation caused by Mr Bruce, and that he loaded and cocked the crossbow in order to intimidate Mr Bruce into leaving. After succeeding in this task, he saw Mr Halstead standing near his vehicle in the driveway. The appellant, still stressed, wanted him to leave. When he pushed and prodded Mr Halstead he thought the safety catch was in the safe position. He thought this because he knew that the safety catch automatically engaged once the weapon was cocked. However, as he pushed Mr Halstead, the weapon 'went off'. He denied intentionally firing it.
The only way the weapon could fire when cocked was with the safety catch in the fire position. The respondent's case at trial was that the appellant had deliberately switched it to fire before confronting Mr Bruce and Mr Halstead.
The appellant said that it was possible that during a lull in the commotion inside the house he remembered thinking that he could unload the crossbow. He said it was possible that he could have turned the safety switch to the safe position as the first step in the process of unloading, but that when the commotion started up in the kitchen, he had not finished unloading the crossbow and he took it up and left his bedroom, forgetting that the safety catch had been switched to the fire position. The appellant also said that there had been occasions in the past where, just before firing the weapon, he had realised that he had turned the safety to fire, although he could not recall doing so. The evidence of Mr Dabovich showed that it is an easy step to move the safety lever to the fire position. An inspection of the weapon confirmed this.
The evidence very much supports the position that the appellant was not acting calmly. The unexpected and threatening arrival of Mr Bruce would reasonably have induced fear into the appellant. Once Mr Bruce fled from the house and the appellant's attention was drawn to Mr Halstead, that fear may well have turned to anger. The appellant was at least, to use his words, 'pissed off'. Whatever his precise emotional state, it does not appear to be calm. It can be accepted that in this state the appellant may well have, at the spur of the moment, decided to deliberately shoot Mr Halstead. That, in a nutshell, is the prosecution case. If he had done so, it is very difficult to see, given that the crossbow was pointed directly at Mr Halstead's upper back at virtually point‑blank range, how it could be said that he did not have, at least momentarily, an intention to kill Mr Halstead or cause him a bodily injury of such a nature as to endanger or be likely to endanger Mr Halstead's life. Yet he was acquitted of murder. While, in theory, the appellant may have deliberately pulled the trigger without these intentions, in reality, that scenario was not reasonably open.

Immediately after the shooting, the appellant appeared, according to his brother, Campbell Macaree, 'shocked'. When he spoke to the triple zero operator, the appellant said that the shooting was 'an accident'.
We are not satisfied beyond reasonable doubt that the appellant could be found guilty of manslaughter on the basis that he deliberately pulled the trigger of the crossbow, but without any of the intentions necessary to establish murder. However, even accepting that the pulling of the trigger was inadvertent, his use of the crossbow was, beyond reasonable doubt, criminally negligent, having regard to his own evidence. The appellant chose to bring into a volatile situation a very powerful and highly dangerous weapon. A comparison of the appellant's actions with the manufacturer's safety precautions reveals that the appellant handled the crossbow on the night in question in a manner which was completely inconsistent with the safety precautions in that he:
(a)loaded and cocked the crossbow, apparently without any intention of firing it;
(b)not only pointed it at another person, while it was loaded and cocked, but he pushed that person with the weapon in that state;
(c)failed to check the position of the safety catch; and
(d)assumed (wrongly) that the safety catch was in the safe position.
Despite these failures, the appellant pushed Mr Halstead in a vital area of his body. Anyone in such a position would have been aware that if, for any reason, the weapon fired, the consequences to Mr Halstead would have been catastrophic.
In our opinion, a conviction of the appellant for manslaughter based on criminal negligence was inevitable. Our reference to the inevitability of the result is in the context of emphasising the high standard of proof required to establish the appellant's guilt of the crime of manslaughter: Weiss [40].
Mr Vandongen's primary submission as to why the proviso ought to be applied, even if the court is satisfied beyond reasonable doubt that the appellant is guilty of manslaughter, is that the alleged error went to an element of the offence: appeal ts 57. It was submitted that, in the context of a case where the degree of any negligence by the appellant in the handling of the crossbow was one of the key issues for the jury to decide, any misdirection about the standard of negligence resulted in a fundamentally flawed trial which was not amenable to the application of the proviso.
Mr Vandongen further submitted that the alleged error amounted to a breach of the requirement in s 92 of the Criminal Procedure Act, that if an accused pleads not guilty to a charge, he or she 'is entitled to have the issues of fact raised by the plea tried by a judge and jury'. Mr Vandongen argued that there was a real risk that the issue of fact tried by the jury was whether the appellant had failed to use reasonable care or to take reasonable precautions, rather than whether the appellant had been criminally negligent. In oral submissions, Mr Vandongen submitted that if there was a breach of s 92 of the Criminal Procedure Act, the case was analogous to AK v The State of Western Australia, where the High Court held that a complete failure to comply with the requirement in s 120(2) of the Criminal Procedure Act for a judge alone to give reasons, resulted in a substantial miscarriage of justice to which the proviso could not apply.
It is not the law that where there has been a misdirection as to an element of the offence, the proviso cannot be applied: see Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [23] ‑ [24]; King v The Queen [2001] WASCA 198 [37]; and Quaid v The Queen [2011] WASCA 141 [237]. However, it can be accepted that an error as to an element of an offence is a serious matter and may lead to the conclusion that the proviso should not be applied. The appellant's own evidence as to the way he handled the crossbow was extremely damning of him. On no reasonable review of the evidence could his conduct be characterised as merely negligent. Accordingly, even if the ground of appeal alleged by the appellant had been upheld, there would have been no substantial miscarriage of justice.
We now turn to the argument concerning s 92 of the Criminal Procedure Act. The argument raised by counsel is novel, and was proffered, as senior counsel conceded in oral argument, without sufficient analysis: appeal ts 59. The respondent made no submission on the matter at all.
Section 92 of the Criminal Procedure Act is in the following terms:
Plea of not guilty, consequences of
If an accused pleads not guilty to a charge, or such a plea is entered by a superior court on behalf of the accused, then unless -
(a)the accused’s plea is not accepted under section 99; or
(b)an order is made under section 118 that the trial of the charge be by a judge alone without a jury,
the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury.
Section 92 of the Criminal Procedure Act is the statutory successor to s 622 of the Criminal Code. That section read:
If the accused person pleads any plea or pleas other than the plea of guilty, or a plea to the jurisdiction of the Court, he is by such plea, without any further form, deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury, and is entitled to have them tried accordingly.
Mr M Murray, as he then was, in his work, The Criminal Code: A General Review (1983) (the Murray Report) recommended two minor amendments to the section. One of those was to make it clear that the issues to be tried by the jury were issues of fact and not issues of law: see Murray Report, p 397.
The explanatory memorandum of the Criminal Procedure Bill 2004 (WA) explained that s 92 provides for the procedural consequences of an accused entering a plea of not guilty. The memorandum stated that the provision was based on s 622 of the Criminal Code and addressed, in part, the Murray Report recommendation in relation to that section.
Section 92 of the Criminal Procedure Act was referred to, in passing, by Buss JA in Coates v The State of Western Australia [2009] WASCA 142. There his Honour said:
Section 92 of the Criminal Procedure Act provides, relevantly, that if an accused pleads not guilty to a charge then, unless an order is made under s 118 that the trial of the charge be by a judge alone without a jury, 'the accused is entitled to have the issues of fact raised by the plea tried by a judge and jury' (emphasis added).
Although it is unnecessary, in this appeal, to determine the nature of the accused's so-called 'entitlement' under s 92, my preliminary view is that s 92, on its proper construction, relevantly requires that where there is a plea of not guilty to a charge then, unless an order is made under s 118, the issues of fact raised by the plea be tried before a judge and jury. In other words, absent an order under s 118, there must be a trial before a judge and jury [94] ‑ [95].
In our opinion, the effect of s 92 is, like its predecessor s 622 of the Criminal Code, procedural. The entitlement the section speaks of is an entitlement to have a trial by judge and jury where a plea of not guilty is made, unless the accused's plea is not accepted under s 99 of the Criminal Procedure Act or an order is made under s 118 of the Criminal Procedure Act that the trial of the charge be by a judge alone. It is, in other words, a provision which specifies the method of trial once a plea of not guilty is entered.
In the present case, the appellant entered a plea of not guilty to the charge of murder. He was entitled to, and had, a trial by judge and jury. There has been no breach of s 92.
The present case is not analogous to AK v The State of Western Australia. AK was a case in which there was a complete failure to comply with the requirement to give reasons in s 120(2) of the Criminal Procedure Act. In the present case, the requirement in s 92 of the Criminal Procedure Act was complied with.
There is no merit to the submission concerning s 92 of the Criminal Procedure Act.
In our opinion, even if his Honour made the error asserted in the ground of appeal, there has been no substantial miscarriage of justice. Accordingly, the appeal would have still been dismissed.

Appeal against sentence

We now turn to the appeal against sentence. Leave to appeal is sought on the following ground:
The learned trial Judge erred in the exercise of his sentencing discretion by erroneously finding that the appellant had deliberately discharged the crossbow.
Particulars
1.A finding that the appellant had deliberately discharged the crossbow was not open on the evidence.
2.A finding that the appellant had deliberately discharged the crossbow was not open as it was inconsistent with the jury's verdict of acquittal in relation to the offence of murder.
The relevant appellate principles which apply to this appeal are well known. They are accurately stated in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.
In his sentencing remarks, his Honour found that the firing of the crossbow was deliberate. However, consistent with the acquittal of murder, the appellant did not intend to kill or do life‑threatening harm: sentencing reasons [21].
We will not repeat the analysis of the evidence undertaken earlier in these reasons with respect to the application of the proviso. Consistently with that analysis, and with great respect to Hall J, we do not think it was reasonably open for him to sentence the appellant on the basis he did.
Accordingly, particular 1 of the ground of appeal has been made out. Error having been demonstrated, this court's discretion to resentence the appellant has been enlivened. However, a question remains whether a different sentence should be imposed: s 31(4)(a) of the Criminal Appeals Act.
The maximum penalty for manslaughter is 20 years' imprisonment. There is no tariff for manslaughter. This is because of the great variation which is possible in the circumstances of the offending and the offender: The State of Western Australia v Butler [2009] WASCA 110 [7]; and Brown v The State of Western Australia [2011] WASCA 111 [98].
The use of the crossbow was plainly an aggravating feature of the appellant's offending. While the possession of a crossbow was not, at the time, unlawful, it required those who wished to own and possess such an object to use it with extreme care. Its lethal capacity was obvious. To introduce such a weapon into a volatile situation and to handle it as the appellant did, with no thought as to the safety of Mr Halstead, speaks of a high degree of criminality. This is so, notwithstanding that the appellant acted on the spur of the moment without any intention to kill or harm Mr Halstead. The potential for harm was obvious. Courts must do what they can, in the interests of public protection, to prevent this kind of behaviour. General deterrence must be given substantial weight in this case.
The appellant was, at the time of sentencing, 28 years of age. The sentencing judge was provided with many personal references from family, friends and work colleagues, who spoke highly of the appellant. It can be said that the appellant's offending was out of character.
The appellant did not plead guilty. That was, of course, his right, and it must be observed that he was charged and acquitted of murder. However, there was no offer to plead guilty to manslaughter, and so the matter was tried. The fact that the appellant did not plead guilty is not a matter of aggravation, but he is not entitled to the discount that would flow from a plea of guilty. He did make concessions during the trial and never denied that he shot Mr Halstead with the crossbow.
The appellant did not express personal responsibility for what had occurred during the trial, but he did express remorse to the community corrections officer who presented an oral pre‑sentence report to the sentencing judge.
The victim impact statements from Mr Halstead's family, which were provided to the sentencing judge, eloquently set out the terrible consequences which have flowed from Mr Halstead's death. It is important not to lose sight of the unnecessary loss of life which resulted from the appellant's actions.
There is no question that the only appropriate penalty in this case was a term of immediate imprisonment. This was a very serious example of manslaughter. Notwithstanding the appellant's personal circumstances, and his expression of remorse, a substantial term of immediate imprisonment must be imposed. In our opinion, a sentence of 6 years' immediate imprisonment, as originally imposed by the sentencing judge, is entirely appropriate, even on the basis that the appellant did not pull the trigger by a willed act.
As we would not have imposed a different sentence to that imposed by the sentencing judge, the appeal against sentence should be dismissed. A grant of leave is appropriate in relation to both appeals. However, each appeal must be dismissed.