Maher v The State of Western Australia - [2010] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAHER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 156

CORAM: OWEN JA
PULLIN JA
JENKINS J

HEARD: 10 MARCH 2010

DELIVERED : 3 AUGUST 2010

FILE NO/S: CACR 112 of 2009

BETWEEN: DENIS JOHN MAHER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 5 of 2009

Catchwords:

Criminal law - Evidence - Directions to jury - Judge's comments to the jury on factual issues - Judge failed to inform jury that it was not bound by his comments on the facts - Whether judge's comments were materially prejudicial to the defence - Whether judge misstated the evidence
Criminal law - Evidence - Directions to the jury - Whether the judge erred in failing to direct the jury on provocation

Legislation:

Criminal Code (WA), s 281
Criminal Law Amendment (Homicide) Act 2008 (WA), s 12, sch 1 cl 2
Criminal Procedure Act 2004 (WA), s 112

Result:

Appeal allowed
Conviction for murder set aside
Order for a retrial on the charge of murder

Category: B

Representation:

Counsel:

Appellant: Mr A S Derrick SC & Mr M R Gunning
Respondent: Ms L D O'Connor

Solicitors:

Appellant: Gunning Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Broadhurst v The Queen [1964] AC 441; [1964] 1 All ER 111
Commissioner for Road Transport & Tramways v Prerauer (1950) 50 SR (NSW) 271
Green v The Queen [1971] HCA 55; (1971) 126 CLR 28
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601
Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85
R v Boykovski (1991) 58 A Crim R 436
R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

OWEN JA: For the reasons given by Jenkins J, I agree that ground 1 has not been established. I also agree with Pullin JA's cautionary note that it is desirable for trial judges to give an express direction to the effect that a jury is not bound by any comments she or he may make on the facts.
For the reasons given by Pullin JA, ground 2 ought to be upheld. The trial judge's comment about the relevant evidence was mistaken. The mistake was made in relation to a material factual issue and the potential for it to have misled the jury cannot be dismissed.
For the reasons given by Jenkins J and by Pullin JA, I agree that ground 3 has been made out.
The appeal should be allowed and an order made for a retrial on the charge of murder.
PULLIN JA: I agree with Jenkins J that this appeal should be upheld. My reasons follow.

Ground 1

By this ground the appellant asserts that the judge erred in law by failing to direct the jury that they were not bound by any comment or opinion that he expressed in relation to factual issues. The appellant submitted that there was a difference of emphasis between the reasons of Buss JA and Miller JA in the case of Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297, and reference was made in particular to [158], [263], [278], [298] and [302]. I do not detect any real difference between the two. I agree with Buss JA's view that the effect of the whole direction must be considered to decide whether or not the effect of the direction was to tell the jury that they were not bound by the judge's comment. The appellant contended that it was not enough for the trial judge to direct the jury that factual issues were a matter for them, or something similar. Reference was made to Smith [138] and [274].
I agree with Jenkins J that the overall effect of the trial judge's direction made it clear that his comments were comments only, and were not binding on the jury.
However, I must add that it is advisable for a trial judge to do as the court said in Broadhurst v The Queen [1964] AC 441; [1964] 1 All ER 111, 465 (see Smith [271]) which is to expressly tell the jury that they are not bound by comments made by the trial judge or by counsel. If that is

said, then there can be no room for argument about the effect of such a direction.

If the express direction is not given, then it leaves open argument about whether the overall effect of the reading of the summing up as a whole produces that effect, even though not expressly said. It is undesirable and creates unnecessary work in a busy court system to have that question brought up to the Court of Appeal for a decision to be made on the subject when an express direction can be so easily given. Ground 1 should be dismissed.

Ground 2

Ground 2 alleges an error by the trial judge amounting to miscarriage of justice, when he told the jury that the evidence of the prosecution witness Shuttleworth, was that the appellant had told Shuttleworth that the order in which the chamber of his revolver would be loaded would be a blank followed by two live rounds. In fact, the real complaint which emerged at the hearing, was slightly different. The complaint was about the last words in the following paragraph after the last comma. The paragraph reads:
Shuttleworth certainly said that the discussion that he had about ammunition with the accused included the observation that the accused was in the habit of having the rounds in groups of three, one a blank followed by two which were - I think the description was used, the first one might be used as grape shot, as a warning, as a sort of second warning, and the third was a round, anyway a blank and two live rounds, and that would be the way in which, according to Shuttleworth the accused said they would be in the chamber of the revolver.
His Honour then went on to ask rhetorically:
What does that indicate? It's a matter for you. You will contrast that with the evidence given by the accused particularly as to the circumstances in which he loaded rounds into the weapon.
The statement by the trial judge at the end of the first paragraph was an incorrect summary of the evidence. Shuttleworth did not say that the accused said that he put the bullets in the chamber of the revolver. Shuttleworth's evidence was that he was shown the revolver by the accused; that he did not see any bullets in the revolver; and that the accused merely said to him that he 'carried' a blank, a birdshot and a round. In the context, that was not evidence from Shuttleworth that the accused said that these were carried 'in the chamber of the revolver'.
Shuttleworth had, after giving evidence about what the accused had said, then made some assumptions about what this meant and that was the subject of objection. What Shuttleworth assumed was not evidence and was properly objected to. The trial judge in directing the jury, rather than referring to the evidence that was objected to as relevant, should, if he wished to refer to it at all, have directed the jury that it was not evidence to be taken into account.
Instead, his Honour elevated what Shuttleworth assumed into evidence and then asked the jury to contrast what Shuttleworth allegedly 'said' with the evidence given by the accused. The evidence of the appellant was that when the vehicle in which he was travelling was pursued by the blue Commodore, the revolver was not loaded. The appellant gave evidence that it was only when the blue Commodore had deliberately crashed into the back of his car and then struck the appellant's car on the side, swinging it round and after the deceased emerged from the blue Commodore and began smashing the windows of the accused's vehicle, that he loaded his weapon and fired it. The trial judge's elevation of Shuttleworth's inadmissible evidence about what he assumed suggested a contest for the jury to resolve. This was a misstatement by the trial judge on an important material matter which the jury had to consider.
Even though the trial judge had in effect told the jury that they were not bound by his comments, it is nevertheless a miscarriage of justice for a judge in the course of making comments about the evidence, to misstate the evidence that had been given. I would therefore uphold ground 2.

Ground 3

The appellant contends that the trial judge erred in failing to direct the jury on the issue of provocation under s 281 of the Criminal Code (WA). There is no question that counsel for the appellant did not suggest that directions should have been given about provocation. There is no doubt that the appellant did not expressly state that he 'lost control'. That does not matter. If there is material in the evidence capable of suggesting that the accused was provoked, then the issue must be left to the jury even though neither the prosecution nor the defence has sought to raise it and despite the fact that it is inconsistent with the defence that the accused has raised: Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 333 ‑ 334, Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162, Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [99]. This must be assessed by considering whether on the version of events most favourable to the accused which is suggested by the material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.
The appellant submitted that on the most favourable view of the evidence, the issue of provocation was live. Reference was made to the evidence of the degree of violence shown by the deceased during the car chase, including the deliberate collisions with the car driven by the appellant. This included not only the collisions with the appellant's vehicle, but the fact that the deceased then left his vehicle and began smashing the windows of the car in which the appellant was located. There was also the evidence given by the appellant at ts 481 ‑ 483, 507 and 514. At ts 481, he explained how his car was hit by the other vehicle to the point where he was spun around and he said that his thinking at that stage was that he was 'pretty terrified'. At ts 482, he said that he believed that Brockman (the deceased) was in the attacking car and that he knew that he 'could be quite violent'. At ts 483, he described how when the vehicles came to a halt, his passenger was trying to hold his door shut and that he was 'a bit scared at this stage, a bit shaken up'; he said that he 'just wanted them to go away' and, when asked what his belief was as to his situation, he said 'I think - would say it was pretty desperate. I don't know what to say. I was fuckin' shit scared. So I just fired in the general direction hoping they would run away, which they did'. At ts 507, when asked if there was any reason why he needed to fire at all he said 'Well, it was all in a bit of a panic. I felt that we were at risk'. Then at ts 516 he said that at the stage prior to firing the gun his belief was that 'I thought they were going to kill us'. In addition, the appellant relies upon the fact that two shots were fired in rapid succession and over his shoulder.
The fact that sudden and temporary loss of self‑control is caused by fear or panic, as opposed to anger or resentment, does not prevent the defence of provocation being raised. What is necessary is that the provocative conduct, which might be found in threats, physical gestures and conduct by the victim or a group of which he was a member, produces a temporary loss of self‑control at the time when the act causing death is committed: Van Den Hoek (166 ‑ 168); R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56 [32] ‑ [33].
In this case there is no dispute from the respondent that there was provocative conduct by the deceased. The issue is whether or not there was any evidence of loss of self‑control.
In Van Den Hoek the appellant was the wife of the deceased. She had been violently attacked by the deceased who was her husband, and she managed to gain control of the knife which the deceased had wielded as he came towards her. She gave evidence that she was terrified; that she was scared; and that she started lashing out with her legs, hit the deceased and he fell down, slipped and dropped the knife and that she was so scared, she bent down, picked the knife up and stabbed him. A person who happened to be driving past and who had observed part of the incident and who was asked by the deceased for help, said that the appellant at first seemed quite calm, but later appeared to be acting hysterically. There was evidence of a medical practitioner who attended later to say that she was in a state of extreme anxiety.
Gibbs CJ, Wilson, Brennan and Deane JJ said that the deceased's conduct was clearly provocative and there was 'strong evidence that she was in an hysterical or agitated condition and her very actions bespoke loss of self‑control'.
Mason J said (169):
The evidence was sufficient to raise the defence for determination of the jury. The applicant testified that she was terrified by the deceased's attack on her. The uncontradicted medical evidence established, not only that she was in a state of extreme anxiety, but also that her condition was such that her ability to think and relate to what was happening had been impaired. True it is that she did not testify to her sudden loss of self‑control. But the absence of self‑control may be inferred from her state of fear and anxiety. That the loss of control was sudden and temporary and that it was caused by the acts of the deceased, deposed to by the applicant, might also be reasonably inferred.
Mason J said that the failure of an accused to testify to loss of self‑control was not fatal to a defence of provocation or a case in which self‑defence is raised. Because the admission of loss of self‑control is bound to weaken if not destroy self‑defence, the law does not place the accused in a dilemma:
The jury's capacity to infer loss of self‑control from appropriate facts is underscored by the comment of Lord Devlin … that a jury would be entitled to infer loss of self‑control from facts suggesting a possible loss of self‑control, even if the accused expressly denied loss of temper. … Of course an admission of fear is not as antagonistic to self‑defence as an admission of anger. None the less the point remains that the absence of direct evidence of loss of self control is explicable when self‑defence is an issue with the result that the jury is entitled to infer it in the absence of direct evidence.

The medical evidence in Van Den Hoek related mainly to the state of extreme anxiety demonstrated by the appellant after the incident. In this case there is no evidence about whether the appellant was in a state of anxiety or not, but the real point of Van Den Hoek is that in the face of extremely provocative acts, it was open to infer that in her terror the appellant lost control and stabbed the deceased. Similarly, it is open in this case, in my opinion, for a reasonable jury to infer that in the face of the extremely violent actions of the deceased, the fear of the appellant induced a lack of self‑control, led the appellant to hastily load the weapon and fire it off twice.
I would therefore uphold ground 3.
The consequence should be that the conviction should be set aside and there should be an order for a new trial on a charge of murder.
JENKINS J: On 24 June 2009 after trial the appellant was convicted of murder and of being armed with a dangerous weapon in circumstances likely to cause fear to others. The appellant appeals against his conviction for murder.

Grounds of appeal

The appellant was granted leave to appeal on three grounds. Each ground raises an issue concerning the adequacy of the trial judge's directions to the jury. More particularly, the issues raised by each of the grounds of appeal are as follows:
1.did the trial judge make an error of law, resulting in a substantial miscarriage of justice, by failing to adequately direct the jury that it was not bound by any comment or opinion that he expressed in relation to factual issues and that it was the jury's responsibility to disregard such comment or opinion if it was contrary to its assessment of the relevant factual issue;
2.did the trial judge make an error of fact, resulting in a substantial miscarriage of justice, when he told the jury that the evidence of the prosecution witness Mr Brian Shuttleworth was that the appellant had told him that the order in which the chamber of his revolver would be loaded would be a blank followed by two live rounds; and
3.did the trial judge make an error of law in failing to direct the jury on the issue of provocation under the Criminal Code (WA), s 281?

The facts

In the early hours of 12 July 2008 the deceased, Robert William Brockman, and his nephew, Dale Marshall, were at the home of Martin Luscombe in Spalding, a suburb of Geraldton. The deceased was angry with Mr Luscombe over what he believed was the poor quality of amphetamine which Mr Luscombe had sold to him. The deceased demanded that Mr Luscombe return the money which he had paid for the amphetamine. The deceased and Mr Marshall threatened Mr Luscombe with violence. Mr Luscombe persuaded the deceased to give him half an hour to see if he could obtain some more amphetamine for him. The deceased and Mr Marshall then left Mr Luscombe's house.
Shortly afterwards, Mr Luscombe visited a number of places, unsuccessfully trying to source some amphetamine for the deceased. He ended up at the house of Petrina Hona who also lived in Spalding. There were a number of other people present. They include the appellant, Brian Shuttleworth, Troy Densley and Ms Hona.
The appellant had with him his Colt Python 357 Magnum calibre revolver. While at Ms Hona's house, the appellant and Mr Shuttleworth had a conversation about the revolver. The appellant showed Mr Shuttleworth the gun. Mr Shuttleworth did not see any ammunition in it.
At around 2.20 am the same morning the deceased and Mr Marshall returned to Mr Luscombe's house, looking for Mr Luscombe. They broke into the house and found Mr Luscombe's wife. They either stayed in the house or went outside but remained at the property to wait for Mr Luscombe to arrive home.
From around 2.21 am, whilst he was still at Ms Hona's house, Mr Luscombe received text messages from his wife. The text messages were to the effect that the deceased and Mr Marshall were at his house or that they had left the house but were hanging around it.
Having received the text messages, Mr Luscombe left Ms Hona's house to return home. The appellant and Mr Densley went with him. The appellant drove Mr Luscombe and Mr Densley in his Subaru station wagon. Mr Luscombe sat in the front passenger seat. Mr Densley sat in the rear behind the appellant.
The appellant, Mr Luscombe and Mr Densley arrived at Mr Luscombe's house at about 3.30 am. The appellant parked his car on the verge outside the front of the house so that the car's headlights lit up the front yard. The appellant 'sat on his horn', flashed his lights and revved his engine to attract the deceased's and Mr Marshall's attention. The deceased and Mr Marshall appeared from the garage area of the house.
Mr Marshall headed straight for his car, a Commodore sedan. The deceased headed towards Mr Luscombe, who was in the process of getting out of the appellant's car. The appellant got out his revolver, pointed it in the general direction of the deceased and fired it out the driver's side window. Having discharged the revolver, the appellant drove towards the deceased. The appellant's car would have hit the deceased if the deceased had not moved out of the way. The appellant then drove away from the house. Mr Luscombe and Mr Densley were still in his car. He stopped a short distance down the road, where Mr Luscombe called the police.

The deceased grabbed some spanners from Mr Luscombe's garage and got into the front passenger seat of the Commodore. Mr Marshall drove off, chasing the appellant's car.
The appellant saw the people at Mr Luscombe's house get into their car. The appellant 'bunny hopped' his car. The prosecutor alleged that this was to lure the occupants of the Commodore into following the Subaru. The appellant neither admitted nor denied this (ts 502), although he admitted to wanting to draw them away from the house (ts 504). The appellant drove around the streets and ended up driving back past Mr Luscombe's house.
During the short car chase, Mr Marshall deliberately rammed the back of the appellant's car on three occasions. This was at the deceased's request. The deceased also threw one of the tools at the appellant's car. It broke the driver's side window to the Subaru's cargo area. On the final occasion on which the appellant's car was rammed, the force of the impact caused the Subaru to slide sideways and turn 180 degrees before stopping roughly parallel to Mr Marshall's Commodore, but facing in the opposite direction. Mr Marshall also stopped his car.
The deceased got out of Mr Marshall's car and ran towards Mr Luscombe who was still in the front passenger seat of the appellant's car. The deceased tried to open the front passenger door but Mr Luscombe resisted by grabbing the door handle from the inside. Whilst the deceased and Mr Luscombe wrestled over the door, Mr Marshall got out of his car and smashed the back seat window on the passenger side of the Subaru. The appellant, who was still seated in the driver's seat, then fired his revolver twice in quick succession. One of the shots struck the deceased.
Mr Marshall, Mr Luscombe, Mr Densley and the appellant ran from the scene. The appellant took his revolver and a bag with him. He and Mr Densley ran to another address in Spalding. There, the appellant buried the revolver and six rounds of ammunition. Three of the six buried rounds were spent cartridges, one was a blank cartridge (that is, an unspent primed cartridge with no projectile in it) and the remaining two were unused live rounds. One of the three spent cartridges was originally only a blank cartridge. A subsequent forensic examination could only establish that the three spent cartridges had been in the revolver.
The police arrived at the road scene in response to the calls from nearby residents. They found the two cars and the deceased, who was lying on the side of the road a short distance from the cars. The deceased was taken to hospital but was declared dead upon his arrival.
At around 2.00 pm on 12 July 2008 the appellant surrendered himself to the police. The following day, he participated in two recorded interviews. He showed the police where he had buried the revolver and the ammunition.
In the first recorded interview (ROI 1), the appellant said that he had driven to Mr Luscombe's house after being told that people were breaking into it. He said that Mr Luscombe wanted him to 'sort them out' and get the intruders out of his house (ts 10). When he arrived at the house, he flashed his lights and beeped his horn until some people came out. He then drove off to try and lead them away from the house. The intruders, in their car, followed him. Their car deliberately rammed his car until his stalled on the roadway. They then got out of their car and broke the windows of his car. He said that he and the other occupants of his car ran off.
In the second recorded interview (ROI 2), the appellant added that he had fired a blank round at Mr Luscombe's house. He said that at the road scene, he was trapped in the car. He thought he put a blank round or blank rounds in the gun and fired it over his shoulder in the direction of the people who were attacking his car. He then fired another round and they ran away (ts 7 ‑ 8). There was an attempt to clarify the direction in which he fired his gun. The State said that he told the police and demonstrated to them that he had fired over his left shoulder towards the back of the car or the driver's side of it. The appellant disputed this interpretation of what he said to the police.
The appellant said that at the road scene he had rummaged around on the floor of his car and in the bag containing his wallet and telephone for ammunition. He was asked if he remembered how many rounds he had put in and he said:
No. No, it wasn't full ‑ it was three or four rounds I think I managed to get in (ts 11).
The appellant told the police that when he had run from his car he had taken the bag with him. He said that he had subsequently left the bag in the bush. He was asked how he came to bury the ammunition. He said that when he and Mr Densley got to the house where he subsequently buried the ammunition, Mr Densley went to knock on the door. He said:
I emptied the chamber then ... [b]uried the shells in the - the other side and buried the hand gun (ts 14).
He told the police that he had fired the gun at the road scene because the occupants of the other car 'wanted to do harm to us'. He said they were trying to get into the car so he had fired off a round 'hoping that they would run away'. He said that there was 'bit of a break' between the two shots. After he fired one round they still had not moved and he then fired the second shot.
At the commencement of the trial (before the prosecutor commenced her opening address) the appellant's counsel informed the jury that the appellant admitted that the deceased 'died as a result of a bullet wound and that that was as a result of [the appellant] firing his gun'. The appellant's counsel also told the jury that the appellant admitted ownership of the revolver and the ammunition found by police and that he had buried the revolver and the ammunition in the early hours of 12 July 2008.
In her opening address, the prosecutor told the jury that she suspected that in the context of the case it would have to be satisfied that the appellant was not acting in self‑defence in order to be satisfied that the appellant acted unlawfully. In his opening statement, defence counsel asked the jury to focus on two things. The first was that the appellant went to Mr Luscombe's house to assist. The second was that he fired his gun at the road scene for the 'purpose of escaping'.
At the close of the State's case, the appellant gave evidence in his defence. The appellant's defence to the murder charge was, in essence, that he had fired the revolver in order to defend himself and the other occupants of his car and that when he did so he had not intended to cause the deceased or any other person grievous bodily harm.
The appellant testified that he had inserted one blank cartridge into his revolver and had fired it in the general direction of the people who came out from Mr Luscombe's house. This was to scare them away from the house and to attract the attention of anyone else who was still in the house (ts 479). In cross‑examination, the appellant said that he got the gun from the bag between his legs. Also in the bag was ammunition from a six cartridge speed loader which he had previously emptied (ts 490). He acknowledged that he could feel the difference between a live and a blank round by their different weights (ts 499). He knew that he had loaded a blank round, even without looking at it (ts 499). After firing off the one round, he said that he put the gun back in the bag (ts 500).
While the prosecution accepted that the cartridge which the appellant fired outside Mr Luscombe's house was a blank round, it did not accept that the appellant had initially inserted only one cartridge into the revolver.
As to the events at the road scene, the appellant testified that when his car spun around and stalled after it had been rammed for the final time, he had tried to use his door handle to get out of the car, but it did not work. He then reached for his revolver. He said he was a bit scared and a bit shaken up. He fumbled in his bag; he threw one live round to the side; he put a blank cartridge in; he saw a figure come up to the passenger side door of his car; he could see Mr Luscombe was trying to hold his door shut; he frantically put whatever cartridges he could into the chamber of the revolver; he closed the chamber and he fired over his shoulder 'in the general direction of where the people were'. After firing once he could still see 'the person there'. He fired a second time and 'they' moved away. At the time he was just thinking that he wanted 'them' to go away. He said that 'they' obviously wanted to 'do us harm, they had spent that much time ramming the car'. He said that he believed that his situation was 'pretty desperate' and that he was scared. So he said he just 'fired in the general direction hoping they would run away, which they did' (ts 483).
In cross‑examination, the appellant repeated that before he fired his gun at the road scene he had tried to get out of his car but his door would not open. He then saw someone coming to the side of the car. It was at this point that he reached for the revolver which was in the bag at his feet. He said that he 'threw one live round inside', put in one blank and this is when he saw someone come to the passenger side. He saw Mr Luscombe trying to hold his door shut and he 'just fumbled and put in whatever' (ts 505).
The appellant could not say why he took the time to put more than one round in the chamber (ts 505) and he then could not recall whether he had fully loaded the gun. He said that the events happened very quickly; within split seconds. He said that he did not know at the time of loading the revolver how many rounds of ammunition were in his bag or how many of the rounds were live rounds. This was despite the fact that he said that the ammunition in the bag came from the speed loader he had emptied earlier that evening (ts 490).
The appellant said that he thought that the ammunition that he had buried had all come from the revolver. Six questions and answers later, he was asked:
You told us that you accepted that the six rounds that you buried came from the revolver, so you must have fully loaded it. That's right, isn't it?‑‑‑I can't remember (ts 506).
It is unclear whether the appellant's answer meant that he could not then recall whether the six buried rounds came from his revolver, whether he could not then remember if he had fully loaded the gun or both.
The appellant testified that he fired the gun in the general vicinity of where he believed the people were. He said that he was not aiming at anybody in particular. He said he fired the two shots in quick succession, to scare the people off (ts 507). After firing the first shot he did not see anyone move, including the person at Mr Luscombe's door. This was despite allowing enough time for the people to move. So, he then fired the second shot in the direction of the person at Mr Luscombe's door. He said it was clear to him when he fired the revolver the first time that he had fired a live cartridge. This was because the noise from a live cartridge is 'so much louder than a blank cartridge' (ts 508).
The appellant also gave evidence that when he left the car he took the bag at his feet with him. The bag also had his wallet and mobile phone in it (ts 510).
During cross‑examination, it was put to the appellant that he had lied to the police when he said he loaded the gun whilst in the car. The appellant denied this. He also denied deciding to take a loaded gun with him 'before he left Ms Hona's house' (ts 507).
In re‑examination, the appellant said that when stopped on the road he had fired the revolver using his right hand across his left shoulder in the direction of the back passenger side window of his car (ts 515). He fired in the general direction of the people outside the car but he did not aim at anyone. His purpose in firing was to scare the people away because he thought they were going 'to harm us'. The appellant was then asked, at the stage prior to firing the gun, what his belief was as to what the people outside his car were likely to do. He said that he thought they were going 'to kill us' (ts 516).
At post mortem, it was established that the deceased died from a gun shot wound to the left side of the lower part of his rib cage. The bullet had travelled downwards, backwards and across to the right hand side of the body. Along the way it broke up into fragments which lodged on the right side of the back of his abdomen alongside his spinal column (ts 369).
Fragments of the bullet found in the deceased were tested and it was determined that they had not passed through glass before entering the deceased (ts 443). The State's case was that the evidence was consistent with the first shot fired at the road scene breaking a passenger side window and the second shot passing through the broken window and then entering and killing the deceased. The appellant did not accept this version of the events. In his closing address to the jury, defence counsel suggested that the deceased and Mr Marshall had broken the car windows, that the appellant had fired the gun out the rear passenger side window and that the deceased had stepped back from the front window into his line of fire. However, it seems that at the time he was shot, the deceased's left side had to be closest to the appellant and that would not have been the case if the deceased had stepped backwards from the front passenger side of the car. The other bullet fired by the appellant at the road scene was not recovered.
The deceased had a blood alcohol level of .135% and levels of cannabis and amphetamine which were consistent with recent use. He also had therapeutic levels of various sedating, sleeping type medications.
The prosecution witness, Senior Constable Robert Morton, a forensic investigator, testified that when he conducted a forensic examination of the appellant's car he found a live round of 38 special calibre ammunition in the driver's foot well. Constable Morton also testified that in the centre console of the appellant's car he found two speed loaders for the revolver. One contained six live rounds of ammunition. The second one was empty (ts 90 ‑ 91).
Another prosecution witness, Mr Peter James Pendlebury was the secretary of Dongara Pistol Club, of which the appellant was a member. He gave evidence that the appellant had undergone training at the Club to become proficient in the use of firearms and that the appellant had subsequently bought two firearms; the 357 revolver and a 22 semi‑automatic pistol. He had also testified that there would be no reason for a person to have ammunition with them if they were planning to sell a gun to a firearms dealer. The appellant had told the police that he had the gun with him on the evening of 11 July as he was planning to sell it to a dealer.

Ground 1 - the failure of the trial judge to direct the jury that it was not bound by his comments on the facts

The parties agree that the trial judge did not tell the jury that it was not bound by any comment or opinion that he expressed about the facts and that it was its responsibility to disregard his comments on the facts if it took a different view of the relevant factual issues.
The Criminal Procedure Act 2004 (WA), s 112 states:
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.
If a trial judge makes any comment to the jury on a factual issue, he or she must inform the jury that it is not bound by the comment and may accept or reject it as it thinks fit. The judge is also required to tell the jury that it is its responsibility to disregard the comment if it is contrary to its own assessment of the relevant factual issues. A failure to give these directions constitutes an error of law: Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85, 87; Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397, 403; Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297, 340 ‑ 341, 368 ‑ 371, 374 ‑ 375.
A failure by the trial judge to direct the jury that it is not bound by any comment he or she makes about the facts will not result in the granting of an appeal if, on a fair reading of the whole of the judge's directions in context, any comment complained of by the appellant did not create any material prejudice to him and, even if it did, the jury must have appreciated it was not bound by the comment: Smith [158] (Buss JA) and [280] (Miller JA).
The difference between a direction of law and a comment or observation on the facts was considered in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] ‑ [52]. The majority of the High Court said:
It is also to be noticed that Lord Parker referred in Bathurst to the 'accepted form of comment' rather than to any accepted form of judicial direction. This reflects the language used in relevant legislation (like the Accused Persons' Evidence Act) which also spoke of 'comment' on a failure to give evidence. The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and the jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care that is needed in assessing some types of evidence such as evidence of identification.
It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge. Because it is a comment, the jury may ignore it and they should be told they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow [49] ‑ [50]. (footnotes omitted)
The above passage indicates that a judge's identification of factual issues for the jury's determination lies at the border between directions on the law and comments on the facts. But on which side of the border does the task fall?
In Mule the High Court said:
Jurors are commonly told that they may approach the evidence selectively and in a discriminating fashion, that it is for them to decide what evidence they accept and what evidence they reject, and that the law does not require them to give all evidence the same weight. An instruction of that kind, put as an abstract proposition, is an instruction of law. When related to the facts of a particular case, it may have the character both of an instruction of law and of an observation upon the facts. It is the duty of a trial judge to relate instructions of law to the facts, and, in the result, what is said to a jury may involve both instruction and observation [21].
In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, the plurality of the majority of the High Court said:
Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence [41]. (footnotes omitted)
That portion of the judgment in RPS referenced the well‑known comments of the High Court in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 where the court said that it was in complete agreement with what Owen J had said in Commissioner for Road Transport & Tramways v Prerauer (1950) 50 SR (NSW) 271, 277. The High Court summarised Owen J's comments in the following terms:
He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are (466).

If a judge correctly identifies a relevant factual issue or an issue which includes an observation on the evidence, I do not accept that an appellant could be said to be materially prejudiced by the comment even if it seems most likely to be resolved against the appellant. On the other hand, the accused would be materially prejudiced if the trial judge went further than the identification of issues of fact or of fact and law for the jury's consideration, and told the jury how, by considering certain facts, it may reason towards guilt. A trial judge's misidentification of an issue which includes an observation on the facts may be regarded as a comment on the facts which the jury was entitled to ignore. If the accused was materially prejudiced by such a comment, an appeal would succeed unless the jury must have appreciated that it was not bound by the comment.
The appellant's particulars to ground 1 of the appeal identifies four comments about the facts which were made by the trial judge which he says created material prejudice. In his written submissions he complains about an additional comment. He says that the first three of those comments plus the additional comment materially prejudiced him in respect to the jury's determination as to whether the revolver was fully loaded prior to him firing the gun at Mr Luscombe's house and whether the appellant knew from the order in which the cartridges were loaded that the third shot would be a live round. The appellant says that the final comment identified in the particulars to ground 1 materially prejudiced him because it suggested that he had fired the gun in the general direction of the deceased, contrary to his evidence.
I now identify, in italics, the five allegedly prejudicial portions of the direction, in the context of the surrounding directions. I refer to them as comments A ‑ E. I then consider their effect under the three headings suggested by the appellant.
The comments were made in the following context. After directing the jury on matters of law relating to the charge of murder, the trial judge said that he would go on, because it was his 'responsibility to do so', to say something about the evidence which may bear on the legal issues. He identified the issues as:
1.Was it established beyond reasonable doubt that when the appellant fired the fatal shot he intended to do grievous bodily harm?
2.Was it established beyond reasonable doubt that when the appellant fired the fatal shot it would not be able to be described as a defensive act within the meaning of the law?
3.Did the act of firing the fatal shot go too far? Effectively, was it an act done in which the jury was satisfied that it was not necessary for the purposes of defence at the time and in the circumstances when it was done?
The trial judge then told the jury that it would be of assistance to commence at Ms Hona's house and look at the circumstances there. He told the jury that the evidence given by Mr Pendlebury would be of assistance. His Honour then said:
It's a matter for you. All of this stuff now is a matter for your judgment and consideration. All I am wanting to do is not to tell you what I think about it but to tell you what pieces of evidence seem to me to be of significance in relation to the matters with which you have to deal (ts 577).

Comment A

His Honour immediately gave the jury the following direction:
It is perhaps, you may find, of assistance to start at the back end of the facts in relation to the weapon and look at the circumstances which surround the burying of the weapon and ammunition. You may think there is no doubt that when the ammunition and the weapon were buried, what was buried by way of ammunition separately from the weapon was the ammunition that came from the weapon itself. There are six cartridges there, are there not, three of them unfired, one is a live cartridge case, a live blank, the other two are live rounds of ammunition. You will remember Constable Roberts' evidence was that those live rounds of ammunition, the unfired ones, were store‑bought .38 ammunition, so not ammunition as being made up. They are live rounds and they have been bought as such. That is the three unfired ones. (emphasis added)

Comment B

Then there are another three expended rounds that were found in that same place. One of them, it seems clear, was a blank and was fired as such, so one of the things that would make that less pronounced sound that firing a blank makes, according to Constable Roberts' evidence. You may think that was what was fired at Luscombe's house but that is a matter for you.
The other two were again live - had originally been live rounds of .38 ammunition, store‑bought ammunition. Constable Roberts' evidence bears upon that and it is uncontested really, but it is significant, you may think, because there were originally - there was originally a full chamber of rounds of ammunition in the revolver. Four of them were live rounds of ammunition, were what I would have called colloquially bullets, but you know what I am talking about, and two of them were blanks, so it is of some significance. (emphasis added)

Comment C

If the first one that was fired was a blank it perhaps wouldn't surprise you that the next two that were fired, making up the three that were fired - the two that were fired at the scene were live rounds of ammunition with bullets as projectiles when the trigger was pulled. You will have noticed the evidence that the accused gave, that ultimately, during cross‑examination, he conceded that he knew that the two rounds that were fired at the scene were live rounds of ammunition. He knew neither of them was a blank. The reason why he knew that you may think, it is a matter for you, was that he had already fired a blank and that rather suggests perhaps, and it's a matter that you will need to consider, that these rounds of ammunition were in the revolver in a certain order (ts 577 ‑ 578). (emphasis added)

Comment D

After summarising some of the evidence of Mr Shuttleworth, including his evidence that the appellant told him he 'carries' one blank round followed by two live rounds, his Honour said:
What does that indicate? It's a matter for you. You will contrast that with the evidence given by the accused particularly as to the circumstances in which he loaded rounds into the weapon. You would need to ask yourself whether his evidence about that was consistent with what was found, what had originally come out of the weapon or whether it's not consistent, and if it's not consistent what the significance of that is. If you thought that the accused was not giving you accurate evidence about that, was his evidence being tailored to put a best face on things, whereas the true circumstances were of a rather different character, or is that not a matter which troubles you at all (ts 579). (emphasis added)

Comment E

Later during his summary of the accused's evidence and after reciting a portion of the appellant's evidence where he said that he had fired over his shoulder in the general direction of where the people were, the trial judge said:
Now, he demonstrated that at a number of points. He certainly demonstrated it ultimately when this was being discussed with him by the investigating police officers and Mr Gunning has talked to you substantially about that and I don't need to do more than to remind you that his evidence was that holding the pistol in his right hand, because he's a right-handed person, he fired what might be described as the general direction of the people. Why, you might ask yourselves, if it was a warning shot - if it was a shot which was fired to scare them away, why fire in the direction where they were because they're not going to hear the projectile, what they are going to hear is the sound of the weapon being discharged? But there it is (ts 596). (emphasis added)

Loading of the revolver

The appellant submits that the complained of comments suggested to the jury that the revolver was fully loaded at some point prior to him firing the blank cartridge whilst at Mr Luscombe's house. He says that the comments supported the thrust of the prosecution case that he had, contrary to his evidence, acted with a degree of premeditation by fully loading the revolver before leaving Ms Hona's house. He says that if the jury made such a finding of fact, the likelihood of it being satisfied beyond a reasonable doubt that he had not loaded and fired the revolver in the car whilst in a state of panic and fear and in a desperate attempt to defend himself and others by scaring the deceased and Mr Marshall away was significantly increased. Accordingly, the trial judge's comments materially prejudiced his defence.
The appellant says that he did not concede in evidence that he had fully loaded the revolver prior to the shooting of the deceased. Further, he says that in evidence he did not accept that the six rounds of ammunition, which he had buried, came from the revolver. He says that his evidence was that he did not remember fully loading the revolver. He says that this was consistent with what he said in his interview with the police. The appellant also says that the trial judge's directions were not consistent with the State's expert ballistics witness who could only say that the three buried, fired cartridge cases had been in the revolver (ts 442 ‑ 446).
The respondent says, to the contrary, that the complained of comments were not materially prejudicial because his Honour's suggestion to the jury that it may think that there was no doubt that the buried ammunition came from the revolver was consistent with what the appellant had told the police and the appellant's own evidence.
The appellant's complaint can be broken down into two issues. The first is whether the trial judge's comments suggested to the jury that he loaded the revolver at some point prior to him firing the blank cartridge at Mr Luscombe's house. The second is whether they suggested that the appellant had fully loaded the gun. I will consider the issues in that order.
In comment A the trial judge said that the jury may think that the buried ammunition came from the revolver. There is nothing in that comment to suggest that the revolver was loaded prior to the appellant firing the blank at Mr Luscombe's house, as opposed to the blank round being loaded prior to being fired at Mr Luscombe's house and the remainder of the ammunition being loaded after the appellant's car had come to a stop at the road scene.
Comment B suggested to the jury that it may think that the buried spent blank cartridge was fired at Mr Luscombe's house. This did not suggest that all the buried ammunition was loaded at the same time as that blank cartridge was loaded.
Comment C is not relied on by the appellant in this respect. It suggested to the jury that it might conclude that there was a full chamber of rounds of ammunition in the revolver. However, it did not say anything about when the rounds were loaded.
Comment D came after the trial judge had summarised Mr Shuttleworth's evidence to the effect that the discussion he had with the appellant 'included the observation that the accused was in the habit of having the rounds in groups of three, one blank followed by two which were … two live rounds'. In this ground, the appellant does not complain about the accuracy of that part of the description of Mr Shuttleworth's evidence.
Before summarising Mr Shuttleworth's evidence the trial judge referred to him as 'the rather vacant young man … who seems to have partied enthusiastically at [Ms Hona's] house earlier'. His Honour told the jury that it would need to consider whether it was 'prepared to rely upon his evidence' (ts 578). This was not an endorsement of Mr Shuttleworth's credibility.
His Honour said that the jury would have to contrast the evidence of Mr Shuttleworth with that given by the appellant as to the circumstances in which he loaded rounds into the weapon. The appellant has inferred that where his Honour suggested to the jury that it would need to ask whether the appellant's evidence was consistent with 'what was found, what had originally come out of the weapon' that the trial judge was commenting to the jury that his view was that the appellant had loaded the revolver prior to leaving Ms Hona's house. Whereas, all the trial judge did was to say that it 'would need' to ask various questions about the appellant's evidence as compared to that given by Mr Shuttleworth (ts 579). That was a relevant task for the jury to undertake.
The reference in comment D to 'what was found' appears to me to have been a reference to what was found buried. Taken by itself, it did not say anything about where the buried ammunition came from or, if it came from the revolver, when it had been loaded. The comment about considering what originally came out of the weapon, again did not say anything about when the gun might have been loaded.
I note that the trial judge concluded his comments on this part of the evidence by referring to the fact that nobody had seen the appellant load the gun before the appellant left Ms Hona's house. In addition, his Honour referred to Mr Luscombe's evidence that he did not see the appellant loading the gun while the appellant was driving to his house or at his house (ts 579). These comments supported a view of the facts consistent with the appellant's case that the revolver had been loaded, at least in part, at the road scene.
The appellant has failed to establish that the trial judge's comments were materially prejudicial to his defence because they directly suggested that he had loaded the gun prior to the appellant firing the blank at Mr Luscombe's house.
I now turn to consider whether the appellant was materially prejudiced by the comment in B that the buried ammunition had come from the revolver and thus, by inference, it was fully loaded at the time of the shooting at the road scene. The appellant says that a comment to the jury that the revolver was fully loaded supported the State's case that the appellant loaded it prior to arriving at the road scene. I accept that it was a piece of circumstantial evidence that the jury may have used to draw that inference.
The respondent says that this comment did not materially prejudice the appellant because it was the only view of the evidence the jury could have reached, in any event.
There was no dispute between the parties that the three spent cartridges found buried were originally in the revolver. That left for the jury's determination the question whether the one blank cartridge and two unused live rounds, which also were found buried, had been in the revolver at the road scene.
The appellant was the only person who could directly testify as to whether the buried ammunition had been in the revolver. He gave evidence that on the night in question he had the revolver and two speed loaders in his possession. He could not recall whether both of the speed loaders had been fully loaded (ts 489). Each speed loader took six cartridges. Although his evidence was vague in respect to a number of aspects he agreed with the following summary of what he had done prior to leaving Ms Hona's house:
So at some point in time inexplicably you have taken out the ammunition from one speed loader and put it in the [bag] but you have left the other fully loaded speed loader and now empty speed loader in your pocket, you didn't join them up, and then when you have got in your car you have put them in the centre console. Is that what you are telling us?‑‑‑Yes (ts 489).
The police located the two speed loaders in the centre console. One was full and contained live rounds. The second speed loader was empty.
The appellant also denied carrying a loaded gun. The evidence of the empty speed loader was consistent with the appellant's evidence that the ammunition in the bag he had with him in the car came from the second speed loader, which he had emptied in order to show the gun to Mr Shuttleworth (ts 488). Given the context of the questioning, the reference to the appellant getting into his car is a reference to when he left Ms Hona's house to go to Mr Luscombe's house.
Thus, the appellant's evidence to the point that he left Ms Hona's house was that he had a bag containing the ammunition from a six cartridge speed loader, an empty gun and two speed loaders; one full and one empty. He testified that he then went to Mr Luscombe's house, took a blank cartridge from his bag, loaded it and fired the revolver. Without doing anything more with the ammunition in the bag or the revolver he drove away from Mr Luscombe's and ended up at the road scene.
The only conclusion open on the appellant's evidence was that the ammunition which was in the bag at his feet in his car at the road scene was the ammunition which had come from the second speed loader, minus the one blank round which he had already fired when he was at Mr Luscombe's house. That empty cartridge would still have been in the revolver. He had not said that the speed loader was full prior to him unloading it. Thus, he had a maximum of five cartridges in the bag when he arrived at the road scene but, without having regard to any other evidence, there could have been fewer than that number.
The appellant testified that at the road scene he loaded an unknown number of cartridges into his gun. He said that he had first selected a live cartridge which he then threw 'to the side' or 'inside', depending on whether his answer in examination‑in‑chief or cross‑examination is relied on. He then fumbled in his bag, loaded what he mistakenly thought was a blank round and then loaded 'whatever'. In his closing address, defence counsel acknowledged that neither of the first two rounds the appellant said he loaded at the road scene were blank cartridges. After loading the gun, the appellant said he fired two live rounds.
After that he climbed out of his car window and ran off, taking the bag which had originally contained the ammunition and his gun. There was no suggestion in the evidence that he had taken any ammunition with him, other than any which may still have been in the bag, after having been taken out of the speed loader.
As to the ammunition which the appellant buried, in cross‑examination it was put to him that it all came from his revolver. He answered 'I think so' (ts 504). He was later asked:
You told us that you accepted that the six rounds that you buried came from the revolver, so you must have fully loaded it. That's right isn't it?‑‑‑I can't remember (ts 504).
As I have said, taken alone, the effect of this answer is not clear. However, it must have been considered by the jury in the light of the answer he gave only a short time earlier that he thought that all the ammunition he had buried came from his gun.
In ROI 2, the appellant said that he thought he had loaded three or four cartridges at the road scene. This position was adopted by defence counsel in his closing address (ts 23/06/09 30). These cartridges must have been in addition to the one blank cartridge that was fired at Mr Luscombe's house, as it could not have been loaded at the road scene.
In addition in ROI 2, the appellant told the police that after running from the road scene he had 'emptied the chamber then … buried the shells … and buried the handgun'.
There was also evidence that another live cartridge of the same calibre was seized by the police from the driver's foot well of the appellant's car when they inspected it at the road scene (ts 88). On the basis of the appellant's evidence that the ammunition in the bag came from the speed loader, that the speed loader could only take six cartridges and six cartridges were found buried, it seems that the only inference available was that cartridge had never been in the bag, in the empty speed loader or in the gun at the relevant times. It does not say anything about whether the buried ammunition had all come from the revolver or whether the appellant had fully loaded the gun.

If the jury thought that the appellant may have been right when he told the police that he thought that he loaded only three or four shells at the road scene, there would have been an issue as to where one or, at the most, two of the buried rounds had come from. Taken by itself, that evidence was consistent with one or two of the cartridges from the speed loader still being in the bag at the time the appellant ran from the road scene. But, as can be seen from my analysis of the appellant's evidence there was no evidence as to where any of the buried ammunition came from other than from the revolver and before that the bag and before that from the speed loader. It would have been impermissible speculation for the jury to have concluded that the appellant buried ammunition other than what came out of the gun. There was simply no evidence that he did that.
Thus, there was an inconsistency between the appellant's comment to the police that he thought that he had loaded only three or four cartridges at the road scene and his comment to them that he had buried the cartridges from the gun. Both of those propositions could not be true, unless the first is taken as a mistaken belief. If the jury accepted the appellant's admission to the police as to what he buried and, thereby, concluded that the appellant was mistaken when he told the police that he thought he had only loaded three or four cartridges at the road scene, the only conclusion available from that evidence was that all of the buried ammunition had been loaded in the revolver. Thus, the appellant had loaded five cartridges at the road scene and the gun had been fully loaded.
In her closing address, the prosecutor put to the jury that the only logical view it could take was that the revolver was loaded some time prior to the road scene. She said that the State did not know when it had been loaded and it did not matter. She said that it was loaded at a much earlier point in time when the appellant was calmer and knew that he had four live cartridges and knew that he was taking a loaded gun with him.
It follows from the evidence, that either the revolver was fully loaded prior to the appellant emptying the chamber and burying the ammunition or it was loaded with four or five cartridges and, if it was less than fully loaded, the other buried shells came from an unknown source.
I have also examined defence counsel's closing submission. There was no suggestion made to the jury that it should conclude that the buried ammunition came from any source other than the revolver. Although it was suggested to the jury that the appellant had only loaded three or four cartridges at the road scene.
To the extent that the comments of the trial judge expressed the view that the revolver had been fully loaded at some point prior to the shots being fired at the road scene, the comments drew the only inference available from what the appellant had told the police about burying the contents of the gun and what the appellant told the jury he thought was the case, which was that the ammunition he buried all came from his revolver.
The only possible area of prejudice was that the appellant told the police in ROI 2 that he thought he had loaded only three or four cartridges at the road scene. There was no indication during his evidence that he relied on this assertion. He testified that he could not remember how many cartridges he loaded and he did not suggest in his evidence that any of the buried cartridges came from a source other than his revolver. Yet, it is true that defence counsel, in effect, asked the jury to find that the appellant had only loaded three or four cartridges at the road scene. This gave rise to the possibility that rather than being fully loaded, the revolver had only four or five cartridges in it at that time.
If it was not for that comment in defence counsel's closing address, I would have had no hesitation in finding that the comment of the trial judge was not prejudicial to the appellant's case as presented at trial. But the fact is that in his closing address, defence counsel did rely on that comment by the appellant to the police in ROI 2. Given that I accept that a finding by the jury that the gun was fully loaded was a piece of circumstantial evidence from which it could, together with other pieces of evidence, reason that the State had established its case, I conclude that the comment by the trial judge that the gun was fully loaded was materially prejudicial to the appellant. I say this even though the fact that the appellant's experienced defence counsel did not complain to the trial judge that his directions were relevantly unfair militates against a finding that the comments created material prejudice.
The question then is whether the jury must have appreciated that it was not bound by the comments. I will deal with the trial judge's directions in this respect at the conclusion of my consideration of the effect of the comments on the issue of the order in which the cartridges were loaded.

Order in which the cartridges were loaded

The appellant submits that he did not testify that prior to firing the third shot he knew that if he fired again he would be firing a live round. The appellant says that he testified that he knew that the second shot was a live round. He says that his concession in this regard was based solely on the fact that the sound of the shot was much louder than a blank cartridge.
The appellant submits that it is not clear why the trial judge thought it appropriate to make comment C to the jury that the reason why the appellant knew that the second and third shots fired were live rounds was because the first shot he had fired at the house was a blank and that this suggested that the rounds of the ammunition were in the revolver in a certain order. He says that the clear import of the comment was that he had, at some point prior to arriving at the road scene, deliberately loaded the revolver in such a way so that the first shot to be fired would be a blank with the next two shots being live rounds.
Therefore, the appellant says the direction supported the thrust of the prosecution case that he had acted with a degree of premeditation by deliberately loading the gun with live rounds of ammunition before he left Mr Luscombe's house. The appellant submits that if the jury made the finding of fact suggested by the trial judge, the likelihood of it being satisfied beyond a reasonable doubt that he had not, while stopped at the road scene, loaded and fired the revolver in a state of panic and fear in a desperate attempt to defend himself and others by scaring the deceased and Mr Marshall away was significantly increased. Accordingly, the trial judge's comments were materially prejudicial to his defence.
In the first part of comment C, the trial judge suggested to the jury that it would not be surprised if the third shot was a live round. The appellant has placed some significance on this comment given Mr Shuttleworth's evidence, which I will come to shortly, and his Honour's comments on it. However, immediately before comment C, the trial judge had reminded the jury that, in effect, the appellant had originally had six rounds of ammunition, only two of which were blanks. The trial judge's comments ignored the live cartridge found in the driver's foot well and those in the speed loader in the console. This does not matter for present purposes as if they are added to the six which were buried it only adds to the chances of the appellant firing a live round. One of the six cartridges to which the trial judge referred had been fired at Mr Luscombe's house. That means that the first time the appellant fired at the road scene he had one blank round and no less than four live rounds. He had a three out of four chance of firing a live round. The second time he fired at the road scene he had a two out of three chance of firing a live round. These odds meant, as the trial judge said, that the jury would not be surprised that the two shots fired at the road scene were live rounds.
The trial judge then said that the appellant admitted in cross‑examination that he knew that the two rounds which were fired at the road scene were live rounds. That was a correct description of the evidence. The appellant had not admitted that he knew before he fired the shots that they were live rounds; nor did the trial judge suggest that he did.
The trial judge then said that the reason the appellant knew that they were live rounds was a matter for the jury. He suggested that the jury may think it was because the appellant had already fired a blank and that suggested that the rounds of ammunition were in the revolver in a certain order.
It is not clear what the trial judge meant by the last portion of comment C. The State's case was that, as the appellant knew that he had fired a blank cartridge at Mr Luscombe's house and he should have known what had come out of the speed loader and what was in the bag from which he was taking cartridges to load into the gun at the road scene, he must have known that he had only one blank cartridge left and it was likely that the next shot or shots would be live rounds. To the extent that the trial judge's comment may have been endorsing that view, his direction was materially prejudicial to the defence.
Another view of the comment is that suggested by the appellant. The appellant suggests that the trial judge's comment about the cartridges as being loaded in a certain order was a reference to Mr Shuttleworth's evidence which the trial judge interpreted as being to the effect that the appellant was in the habit of loading his gun with a blank round followed by two live rounds. Again, if this was the interpretation which the jury put on the trial judge's comment, it was materially prejudicial to the appellant. However, I think that it was unlikely that that would have been the immediate effect of the trial judge's comments as at that point the trial judge had not mentioned Mr Shuttleworth's evidence.
Taken at face value, the trial judge's comment was that the appellant had already fired a blank and that he knew that the two rounds he fired at the scene were live rounds. This, the trial judge said, suggested that the ammunition was in the revolver in a certain order. If that was the meaning that the jury gave to the trial judge's comment, there was no material prejudice to him in it.
In my opinion, the only part of comment C which was potentially materially prejudicial to the appellant was the last portion of the comment, which I have just discussed. On one view, the trial judge's comments were stating what was obvious from the probabilities based on the ammunition that the appellant was in possession of and the 'certain order' of ammunition shown by the actual shots that were fired. However, I acknowledge that there are other interpretations of the comments which were materially prejudicial to the appellant.
The respondent submits that the complained of comment was identified to the jury as the trial judge's comment. It appears from this submission and from the fact that the respondent does not attempt to justify the comment as being the only conclusion available from the evidence, that the respondent concedes that the comment was materially prejudicial to the appellant's defence, unless the jury was aware that it was not bound by it. I will determine this ground of appeal on that basis. Again, I will consider whether the jury was aware that it was not bound by the trial judge's comments at the conclusion of my consideration of the effect of the complained of directions.

Comment about the direction of shot

The appellant submits that comment E materially prejudiced his defence by suggesting that the firing of the gun in the general direction of the deceased was inconsistent with his evidence that he engaged in this conduct in an attempt to scare the deceased and Mr Marshall away.
The respondent says that no material prejudice arose from the trial judge's comment because it was a rhetorical question posed for the benefit of the jury in an endeavour to focus its attention on the relevant considerations which had already been the thrust of the prosecutor's closing address. The respondent says that the comment was made in the context of a lengthy recitation of the factual evidence surrounding the appellant's admitted firing of the weapon twice and his reasons for doing so. The respondent says that it was followed by an outline of the defence position in relation to the appellant's state of mind at the time he fired the gun. The respondent says that the effect of the comment was to identify for the jury a factual issue which it 'might' ask itself.
In my opinion comment E did not create material prejudice for the appellant. As the respondent submits, it asked the jury to consider an issue which was alive between the parties in the trial. It did not misstate the appellant's evidence or his defence. Looked at in context, it was a comment made to direct the jury's attention to a factual issue for their consideration; namely, whether the first shot at the road scene was a warning shot. To the extent that the trial judge stated the facts within which this issue was to be determined, he simply referred to the undisputed evidence that a blank cartridge, if fired, would give a warning by the noise the revolver made when it was fired rather than by the sound of a projectile being discharged from it. Thus, the noise of the gun would not be affected by the direction in which the gun was discharged. As I previously said, that evidence was undisputed. The question posed was able to be answered just as easily by an answer favouring the appellant as it was by an answer that was adverse to him. For example, the answer may have been that he fired in the general direction of the people because he believed that firing a blank cartridge towards them would be more of a deterrent than firing in the air.

Whether the jury knew that it was not bound by his Honour's comments

Whether or not the complained of comments created material prejudice to the defence, I am satisfied that the jury must have known that it was not bound by any comments about the facts made by the trial judge. In his summing up the trial judge said:
I want to start by talking to you about the process of decision making. You will have gathered by now that you and I together occupy a unique position in this courtroom, because we are the judges. You are the judges of the facts and I am the judge of the law.
…
There's a very important reason why the thing is structured in that way. That is that when you retire from this room to your deliberations, you will have heard my directions about the law and you will have heard comments upon the evidence, two addresses by counsel, and comments by me, and then you will go about your task of finding the facts (ts 547).
When directing the jury on the irrelevance of the consequences of its verdict, his Honour said:
Take the law as I direct you it is, find the facts as you find them to be, apply the law to those facts and you will produce your verdicts (ts 549).
The above direction to the jury about its role can be contrasted with his Honour's direction that he was the judge of the law. The trial judge made it clear to the jury that he and it had different roles.
His Honour also told the jury that he would identify the tools which it had been using instinctively in the trial process. In the course of that direction the trial judge said:
You look to see how the witness' evidence matches up with other evidence in the case. If you have a body of evidence and you have somebody out on their own, you might be concerned as to whether that person's recollection is accurate. Then of course you may not. You may reject the numbers and go for the person who has impressed you as being somebody upon whom you can rely. So that's entirely a matter for your judgment and your decision making process (ts 551).
In the same portion of the summing up, the trial judge told the jury of a number of different ways to assess whether evidence was reliable. His Honour then said:
At the end of that you will have a body of evidence upon which you have decided that you may rely and you will have that material to work with (ts 551).
When dealing with the onus of proof, the trial judge said:
So it's simple really, I suppose, if put in this way: if at the end of the day the prosecution does not prove each fact which it is required to prove to establish guilt, then so far as you are concerned, the fact which is unproved to your satisfaction beyond reasonable doubt just doesn't exist.
…
If you have a doubt at the end of the day in relation to any necessary or essential matter of fact and it is a doubt which you the jury think is a reasonable doubt then the fact is not proved. It is as simple as that (ts 552 ‑ 553).
At the conclusion of the trial judge's summary of and comments on the evidence on the charge of going armed in public, his Honour said:
In the end, the factual issue may well be a simple one in relation to that charge and it's a matter upon which I make no observation whatsoever, but of course to leave it in your hands, you being the judges of the facts (ts 567).
At the conclusion of the trial judge's summary of and comments on the evidence on the charge of murder, his Honour said:
So what you make of that is a matter that you will need to give careful attention to. Mr Foreman, that is all I wanted to say about the matters of evidence. You will have seen that I have endeavoured to focus attention really on what seemed to me to be the most significant factual areas in the case and to remind you of the body of evidence which is available for your consideration in that regard. It may well be that I have overlooked something and matters that I have not mentioned occur to you to be important, in which case ventilate those around the table in the jury room and listen carefully to the views that others express in relation to any of the matters of evidence (ts 600).
At the conclusion of the summing up neither counsel had any complaint about the way in which the trial judge had directed the jury on its duties. There was only one factual issue raised by counsel but it is not the subject of a ground of appeal.
I have also noted that when summarising the evidence, raising issues of fact and commenting on the evidence, the trial judge repeatedly said things to the jury such as 'it's a matter for you', 'if you find' and 'if you are satisfied'. He used these or similar phrases on approximately 25 occasions.
In Smith it was said that the trial judge had on several occasions told the jury that the facts were for it, but these comments were not considered sufficient to inform the jury that any comments which the trial judge made on factual issues were not binding on it, that it may or may not agree with them and that it was its right and duty to disregard the comments if it had a different opinion on the relevant factual issues: Buss JA [157] and Miller JA [274].
One of the cases relied on in Smith was R v Boykovski (1991) 58 A Crim R 436, 443. However, that is a very different case to this. The three appellate judges thought that the trial judge had clearly formed a view of the case that was adverse to the accused and had made that view known to the jury. One of the appellate judges, Murphy J, repeated calculations which had been made by counsel to the effect that the trial judge had asked over 444 questions of witnesses. He said that the trial judge had also cross‑examined one of the accused, questioned the credit of the accused and had left little doubt in the minds of the jury that he did not believe the accused or their alibi witnesses. No such complaints about the trial judge are, or could be, made in this case.
Another case relied on in Smith was Green v The Queen [1971] HCA 55; (1971) 126 CLR 28. Miller JA quoted the following portion of the judgment of Barwick CJ, McTiernan and Owen JJ:
He [the trial judge] presented his own view which was frequently, though not always, unfavourable to the accused. He was of course entitled to express his opinion of the facts as long as he made it clear to the jury that they were not bound by his views. But, although at several points the jury were reminded that the facts were for them, we have come to the conclusion that this summing up transcends anything that a trial judge was entitled to do in the circumstances (34).

Miller JA found this passage to be 'particularly applicable' to the facts in Smith. It is not for me to dispute that view but I do not accept that Green is of any assistance to me, except to the extent that it states the well established principle that a trial judge must make it clear to the jury that it is not bound by his or her views of the evidence. Further, I am of the view that Smith can be distinguished from this case to the extent that the court in Smith relied on a factual similarity to Green. To emphasise the different facts in Green I need only to finish the portion of the judgment from Green which was quoted in Smith and which I have cited above. The court said:
In reading and re‑reading the whole summing up we have been driven to conclude it was unfair, lacking in judicial balance and so partaking of partiality as to render this trial a miscarriage of justice. These qualities so pervade the summing up that quotation of single passages from it is unprofitable. It must be read, as we have read it, as a whole (34).
No such criticism has or could be made of the trial judge's directions in this case.
In Mule, the trial judge did not expressly tell the jury that it was not bound by any comment he made on factual issues. However, the High Court found that what was said by the judge was sufficient to inform the jury that any comments which the trial judge made on factual issues were not binding on it. The High Court said:
Before the commencement of the evidence, the trial judge made an introductory statement to the jurors about the respective functions of judge and jury. In the course of doing so, he said:
'Then at the end of the case it's my job to sum up the law to you, to tell you what the law is that you must apply, and my task there is to try and do that in as intelligible a way as possible and what I tell you about the law you must accept. You also as a group are judges, but of an entirely different issue. It's for you to judge the facts. It's for you to decide what the facts are and you listen to the evidence and you will be required to do that. It is important to realise your power in that regard. It's entirely up to you what you make of the facts and what facts you decide exist in the case, so we are each judges but in different areas. We each have exclusive power, in a sense, in the area of our involvement.'
It could scarcely have been made more clear that the jurors were the sole judges of the facts, to the exclusion of the trial judge. In his introductory statement, the trial judge also stressed that the onus of proof lay on the prosecution. He repeated, and elaborated upon, that when he came to sum up at the end of the trial [9] ‑ [10].
Having regard to everything that the trial judge said in this case to the jury about his and its duties, the stress that his Honour laid on the need for the jury to consider and come to views on various aspects of the evidence and the specific directions given by the trial judge about matters of fact being a matter for it to consider and determine, I am satisfied that the jury must have been well aware that matters of fact were matters for it alone and that it was not bound by any view of the facts expressed by the trial judge.
Least importantly in this determination, I have taken into account that defence counsel told the jury that what counsel and the trial judge said about the facts were comments only and the facts were a matter for it. During his address to the jury, he said:
[Y]ou have now heard all the evidence that you will hear in this trial and from that evidence you determine what the facts are.
The evidence that you have seen and heard is evidence from the witness box, there have been some statements read in and some exhibits will go into the jury room with you and it's from that evidence that you determine the facts. Whatever I say in relation to the facts, whatever my learned friend has said, whatever his Honour says, is only by way of comment designed to assist you, but at the end of the day the buck stops with you. You are the judges of the facts (ts 14).
I would dismiss ground 1.

Ground 2

The appellant complains of the following direction given by the trial judge:
All of those are matters for you and the significance of those matters were matters for you. Shuttleworth certainly said that the discussion that he had about ammunition with the accused including the observation that the accused was in the habit of having the rounds in groups of three, one a blank followed by two which were ‑ I think the description was used, the first one might be used as grape shot, as a warning, as a sort of second warning, and the third round was a round, anyway a blank and two live rounds, and that would be the way in which, according to Shuttleworth the accused said that they would be in the chamber of the revolver (ts 579).
The appellant complains that this was a misstatement of Mr Shuttleworth's evidence. The appellant further complains that the trial judge went on to make comment D to the jury.
The appellant submits that the misstatement of Mr Shuttleworth's evidence followed by his Honour's suggestion to the jury that it should contrast Mr Shuttleworth's evidence with that of the appellant was 'of considerable significance in the context of the case'. The appellant submits that if the jury found Mr Shuttleworth to be a generally credible witness and if it is assumed that the jury accepted the trial judge's statement of Mr Shuttleworth's evidence as accurate, it is likely, if not inevitable, that the jury would find it proved that the appellant had, at some point prior to leaving Mr Luscombe's house, loaded his gun in a deliberate and ordered way. A finding to this effect would have been materially prejudicial to the appellant's defence.
The respondent submits that the trial judge directed the jury that Mr Shuttleworth's evidence was that the accused was 'in the habit' of loading rounds in a particular sequence, not that the revolver would be loaded in that way on the relevant evening. The respondent submits that there is no material difference between Mr Shuttleworth's evidence and the trial judge's summary of it. The respondent says that the later summary was not a material misstatement of the evidence.
Further, the respondent says that there was no material prejudice to the defence in the trial judge's summary of Mr Shuttleworth's evidence given the above matters, the trial judge's description of Mr Shuttleworth in less than favourable terms and the trial judge's preceding comment that the jury needed to consider whether it was prepared to rely on his evidence.
Mr Shuttleworth gave evidence that whilst at Ms Hona's house he sat and had a drink with the appellant. He saw a bulge in the appellant's pants and asked him whether it was a firearm and, if so, if he could look at it. He said that the appellant produced the revolver, opened the chamber and shook it. Mr Shuttleworth did not see any rounds of ammunition. The appellant then gave the revolver to Mr Shuttleworth (ts 272).
Mr Shuttleworth testified that he was interested in the gun because he had been shot by one like it. He then gave the following evidence:
So you looked at it. Was there any discussion about the weapon?‑‑‑No, not too much. Not really sort of ‑ I just looked at it. 'Here we go' ‑ give it back to them, you know.
Any discussion about it at all that you can recall?‑‑‑I asked him, like, what rounds he carries and he told me he carried a blank, a bird shot, and obviously a round.
So he carried a blank, a bird shot and a round?‑‑‑Yes, that's what he told me.
And what context was that said in?‑‑‑Just ‑ obviously for a blank to obviously scare somebody off, and rounds ‑ he obviously didn't want to hurt anybody. Obviously the third round is a last resort. If no one's ‑ if you shoot at someone with a blank, he's still coming for you. If you shoot them with a bird shot, he's still coming for you. Obviously the round ‑ ‑ ‑
GUNNING, MR: This is conjecture, your Honour.
PETRUSA, MS: Right. So this was the nature of your conversation with him?‑‑‑No, it wasn't. I just assumed that. He just told me what he carried, you know (ts 274).
Mr Shuttleworth was not asked any questions in examination‑in‑chief or cross‑examination about his use of 'carries' or its meaning or, indeed, about the conversation. Despite having heard Mr Shuttleworth's evidence, the accused did not comment on it or contradict it during his evidence. He was not cross‑examined on the conversation with Mr Shuttleworth. Neither the prosecutor nor the defence counsel mentioned this part of Mr Shuttleworth's evidence in their opening or closing addresses to the jury.
The appellant submits that the trial judge interpreted 'carries' to mean 'load' and this was an error of fact. The appellant says that this ground of appeal should succeed even though defence counsel did not complain to the trial judge about the direction because the direction amounted to a substantial miscarriage of justice. The appellant clarified during oral submissions that he was not taking issue with the trial judge's use of the phrase 'a grape shot' as opposed to the term 'bird shot' as used by Mr Shuttleworth.
There is no doubt that the trial judge interpreted Mr Shuttleworth's evidence as being that 'carries' meant 'loads'. It seems that this is how counsel also interpreted the evidence because there was no complaint from either counsel about the trial judge's summary of Mr Shuttleworth's evidence.
The question which assists to decide the meaning of what the appellant said to Mr Shuttleworth is to ask how else the evidence could be interpreted. I note that neither in written or oral submissions has the appellant suggested an alternative meaning. The only alternative I can think of is that the appellant told Mr Shuttleworth that he carries, as in loose on him and not in the revolver or a speed loader, 'a blank, a bird shot and a live round'. That interpretation does not make sense in that Mr Shuttleworth gave evidence that the appellant told him that he 'carries' the ammunition in a sequence. A person can not carry loose ammunition in a sequence.
The problem in giving a meaning to Mr Shuttleworth's evidence, other than that inferred by the trial judge, together with the lack of complaint by defence counsel to the trial judge's comments leads me to believe that the meaning given to Mr Shuttleworth's evidence by the trial judge was common to all concerned in the trial. For the above reasons I do not accept that the trial judge misstated Mr Shuttleworth's evidence.
To the extent that the comment materially prejudiced the appellant but was otherwise an accurate statement of the evidence, it falls in the same category as the comments the subject of ground 1. As I am satisfied that the jury was aware that it was the judge of the facts and was not bound by any comments on the facts made by the trial judge, I would not allow this ground.
I would dismiss ground 2.

Ground 3

At the relevant time the Criminal Code, s 281 stated:
When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.
On 1 August 2008 s 281 was repealed and instead the offence of unlawful assault causing death was enacted as s 281 of the Code: Criminal Law Amendment (Homicide) Act 2008 (WA) s 12. Effectively, on that date provocation ceased to be a defence to a charge of murder. As a consequence of the applicable transitional provisions, provocation was a defence available to the appellant because his acts which caused the death of the deceased were done prior to the commencement of the Act: Criminal Law Amendment (Homicide) Act sch 1 cl 2. Some people may regard it as unsatisfactory that the court is determining whether the trial judge should have left provocation for the jury's consideration when, if the death had occurred less than a month later, the law would have provided that provocation was not relevant to whether or not the State had proved the offence of murder. Nevertheless, provocation did and continues to apply to this charge.
The appellant submits that regardless of whether the correct definition of provocation for the purposes of the Criminal Code s 281 is that contained in the Criminal Code s 245 or the common law definition, an accused will act under provocation if there is a provocative act which causes the accused to suddenly and temporarily lose his self‑control and which is capable of causing an ordinary person to lose self‑control and act in the way that the accused did: Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601, 612 ‑ 613; Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 331; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 66; and Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [34] ‑ [35], [55] ‑ [68]. This summary of the law is not disputed by the respondent. Further, it does not dispute that there was evidence capable of causing a jury, acting reasonably, to conclude that it was not satisfied beyond reasonable doubt that the deceased and Mr Marshall, acting in concert, had not committed provocative acts.
However, the respondent submits that there was no direct or circumstantial evidence that any provocative acts did, in fact, cause the appellant to lose his power of self‑control. That is the issue between the parties.
The respondent does not dispute that if there is material in the evidence capable of constituting provocation then provocation should have been left to the jury, even though neither the prosecution or the defence raised it and despite the fact that it is inconsistent with self‑defence, on which the accused relied: Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162; Stingel v The Queen (333 ‑ 334); Hart v The Queen [99].
The appellant submits that the failure of an accused person to testify to a loss of self‑control or otherwise to raise the defence of provocation is not fatal to the defence. The appellant submits that the jury may infer provocation from evidence that suggests a possible loss of self‑control: Van Den Hoek v The Queen (161 ‑ 162, 169); Hart v The Queen [103]. Again, the respondent does not dispute these principles of law but says that there was no direct or circumstantial evidence from which the jury could have reasonably found that the appellant may have lost his power of self‑control.
The decision as to whether provocation should have been left to the jury is to be decided on the version of the evidence most favourable to the appellant. Both parties rely on a body of evidence to establish their respective positions that provocation should have been left to the jury or ought not to have been left to the jury.
The appellant concedes that provocation was not raised during the trial and that he did not testify to a loss of self‑control. Despite that, he says that there was evidence capable of causing a jury, acting reasonably, to conclude that it was not satisfied beyond reasonable doubt that the deceased and Mr Marshall acting in concert, had not committed provocative acts which caused him, out of fear or anger or both, to suddenly and temporarily lose his self‑control and act in the way that he did. He says that these provocative acts were also capable of causing an ordinary person to so lose self‑control. The evidence on which the appellant relies is as follows:
1.The repeated ramming of his car during the car chase;
2.The smashing of the cargo window of his car during the car chase;
3.His comments to the police in ROI 1 that when his vehicle was rammed he was getting bounced around, 'stuff' was flying everywhere and the car stalled;
4.The smashing of one or two of the windows of his car after it had come to a stop;
5.His evidence that he feared for his life at the time his car had been forced to stop after being rammed on the final occasion;
6.The attempts which the deceased and Mr Marshall apparently made to get at him and Mr Luscombe after the two cars had stopped;
7.His evidence that he tried to get out of his car but could not do so;
8.His evidence that when his car stalled, people got out of the other car and started smashing windows and it was 'a bit of a blur'. Glass was 'flying' and people were screaming;
9.The appellant's comments in ROI 2 that he fired the gun at the road scene because the deceased and Mr Marshall 'obviously wanted to do harm to' he and Mr Luscombe. He said that they were trapped in his car whilst the others were smashing the windows and trying to get to them. He said that they could not get out of the car so he fired off a round hoping that they would run away and they did;
10.The appellant's evidence at trial that when his car came to a stop he was a bit scared and a bit shaken up. When he loaded and fired the revolver he was just thinking that he wanted the deceased and Mr Marshall to go away because they obviously wanted to do him and Mr Luscombe harm. He believed that his situation was 'pretty desperate' and he was scared. So he just 'fired in the general direction hoping they would run away which they did' (ts 481); and
11.The incident at the road scene happening very quickly; within split seconds.
The respondent says that even considering the version of the evidence most favourable to the appellant, at the time he fired the bullet which killed the deceased, he had made a deliberate choice to fire for the purpose of deterring those who were pursuing him and Mr Luscombe. The respondent relies on the following evidence:
1.The appellant's evidence, which I have referred to above, where he says that at the time he fired his gun he just wanted his pursuers to go away.
2.The appellant's evidence in cross‑examination in response to the prosecutor's proposition that it was not necessary to use the gun. The appellant said 'I felt it was. That's why I used it' (ts 508). There was a similar reply at ts 512.
3.The appellant's evidence in re‑examination when he was asked what his purpose was in firing the gun and he replied 'I just wanted them to go away, scare them into going away' (ts 514).
The respondent says that there was no evidence before the jury that the appellant had at any stage suffered a loss of self‑control such to give rise to a defence of provocation. The respondent submits that the appellant's evidence of being fearful and acting under stress did not amount to evidence of a mental state or an emotional state which could be characterised as a temporary loss of self‑control. The respondent relies upon the appellant's evidence to the effect that he was still capable of making the deliberate choice in the selection of his ammunition because he gave evidence as follows:
I threw one live round to the side. I was fumbling in my bag. Was a bit scared at this stage, a bit shaken up. Threw a live round to the side. Put a blank round in (ts 481).
He was then asked what his belief was as to his situation. He answered:
I think - would say it was pretty desperate. I don't know what to say. I was fuckin' shit scared. So I just fired in the general direction hoping they would run away, which they did (ts 481).
Also relevant to this issue is the appellant's evidence that he was 'in a bit of a panic' (ts 505). When he was cross‑examined as to the events between the two shots at the road scene, it was put to him that despite the fact that the events were happening quickly he had still given the person at the passenger side window an opportunity to move between the two shots. The appellant agreed with this. The following evidence was then adduced:
Was it happening quickly or did you give him a chance to move?‑‑‑I can't explain it. I've never been in that situation before and I hope to God I'm never in it again.
So you say you were in a bit of panic. Is that right?‑‑‑Yes.
You switched the headlights off on the car, didn't you?‑‑‑I can't remember doing that (ts 508).

The only issue between the two parties is whether there was evidence sufficient to enable a jury, acting reasonably, to find that the State had not proven beyond reasonable doubt that the appellant had not lost self‑control at the time he fired the fatal shot.
Undoubtedly, there was evidence which, taken at its highest and absent direct evidence from the appellant as to his state of mind and reasons for shooting, could have enabled a jury to infer that the State had failed to meet its onus in respect to the defence of provocation. The question is whether the evidence of the appellant meant that finding was not open to the jury.
Taking the evidence at its most favourable to the appellant, the jury may have disregarded his evidence that he acted deliberately in firing the gun in order to make the attackers go away and to prevent them from harming him and the other occupants of his car. The appellant says if it did that, the jury may still have been of the view that there was other evidence from which it could reasonably infer that he may have lost his control in firing the gun. In summary, the appellant relies upon the degree of violence used by the deceased and Mr Marshall, the speed of the incident and his evidence that he was frightened and that he panicked when he fired the gun.
The appellant says that this case is similar to that of R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56 in which the Queensland Court of Appeal found that the trial judge had erred in not leaving provocation to the jury. The appellant in that case had become involved in a bar room brawl with the victims. There was evidence that the victims were the aggressors, that they threatened the appellant, gestured in an aggressive manner towards him and then assaulted him. After the appellant had responded by injuring a number of the aggressors, he was spoken to by the police and denied that he was responsible for the injuries to any of the victims. He said that after he was assaulted by the victims he 'just panicked' and had tried to back out of the situation before he was assaulted again.
The distinguishing feature between this case and Pangilinan is that in the latter case the appellant did not give evidence. Thus, there was no direct evidence from that appellant as to his state of mind at the time that he inflicted the relevant injuries. The issue in this case remains whether the appellant's evidence and what he said in the ROIs meant that the trial judge was not under an obligation to leave provocation to the jury.
In Stingel v The Queen, the High Court said that:
[T]he question for a trial judge under s 160(3) can be summarised as being whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense (334).
Thus the question for me is, on the version of the evidence most favourable to the appellant, could a jury acting reasonably fail to be satisfied beyond reasonable doubt that the killing of the deceased was unprovoked in the sense that the jury might fail to be satisfied beyond reasonable doubt that the appellant did not lose self‑control due to the provocative acts of the deceased and Mr Marshall?
As Mason J in Van Den Hoek pointed out, it is sometimes said that the anger is the domain of the law of provocation and that fear is that of self‑defence. After considering the issue his Honour concluded:
When all this is understood, there can now be no convincing reason for confining the doctrine to loss of self‑control arising from anger or resentment. The doctrine naturally extends to a sudden and temporary loss of self‑control due to an emotion such as fear or panic as well as anger or resentment. This extension of the defence conforms not only to the conceptual relationship between the doctrine and the mental elements in the offences of murder and manslaughter but also to the emphasis given in modern judgments to a sudden and temporary loss of self‑control as the central element in the doctrine (168).
After careful consideration of this question, I conclude that there was evidence which may have caused a jury to fail to be satisfied beyond reasonable doubt that the appellant did not lose self‑control due to the provocative acts of the deceased and Mr Marshall. The jury were entitled to reject the appellant's evidence that he acted in self‑defence, as it did. If it had done so, the evidence was that there were many provocative acts done by the deceased and Mr Marshall. For example, they had broken into Mr Luscombe's house, chased the appellant's car, rammed it on three occasions, thrown at least one tool at it which broke a window, caused the appellant's car to spin and stall, approached the car with more tools as weapons and smashed at least one window of the car in order to gain entry into it and, by inference, to gain access to the occupants. The appellant's act of firing his gun in the dark and in close proximity to other people, may itself be evidence of a loss of self‑control. The jury were entitled to accept that the appellant may have lost his self‑control due to the provocative acts of the deceased and Mr Marshall. Where such a view is open on the evidence, it is the duty of the court to direct the jury on provocation.
The only remaining issue is whether, despite the appellant's success in respect of ground 3, the appeal should be dismissed under the Criminal Appeals Act 2004 (WA) s 30(4) on the basis that no substantial miscarriage of justice has occurred. After making an assessment of the evidence, having regard to the natural limitations that exist because I have not heard or seen the witnesses, I am unable to conclude beyond reasonable doubt that a jury, if properly instructed in respect of the law of provocation, would have convicted the appellant of murder. I am therefore unable to conclude that no substantial miscarriage of justice has occurred.
The result is that ground 3 has been made out. I would allow the appeal, set aside the conviction for murder and order a re‑trial.