McGibbon v The Queen
[2003] WASCA 311
•9 DECEMBER 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: McGIBBON -v- THE QUEEN [2003] WASCA 311
CORAM: MILLER J
MCKECHNIE J
WALLWORK AJ
HEARD: 6 NOVEMBER 2003
DELIVERED : 9 DECEMBER 2003
FILE NO/S: CCA 103 of 2003
BETWEEN: SYLVIA MAY McGIBBON
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Attempted murder - Appeal against conviction - Whether issue at trial properly put by trial Judge - Whether ultimate question for the jury effectively taken away by trial Judge's direction - Whether direction on recklessness in use of a knife required - Whether direction on lack of motive required - Whether appropriate direction on admission made by appellant - Whether verdict unsafe and unsatisfactory
Legislation:
Criminal Code (WA)
Result:
Extension of time within which to appeal granted
Appeal allowed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: Mr R W Richardson
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cutter v R (1997) 143 ALR 498
De Gruchy v The Queen (2002) 211 CLR 85
Gavin v R (1992) 6 WAR 195
M v The Queen (1994) 181 CLR 487
Mraz v The Queen (1955) 93 CLR 493
R v Wedd (2000) 115 A Crim R 205
Case(s) also cited:
Attorney General's Reference Under s 693A of the Criminal Code [2002] WASCA 242
Barca v The Queen (1975) 133 CLR 82
Edwards v The Queen (1993) 178 CLR 193
Fletcher v The Queen [1999] WASCA 18
Knight v R (1992) 109 ALR 225
Leary v R [1975] WAR 133
Penney v R (1998) 155 ALR 605
Plomp v The Queen (1963) 110 CLR 234
R v Collins; Ex parte Attorney General (1996) 1 Qd R 631
R v Hubert (1993) 67 A Crim R 181
Stanton v R (2003) 198 ALR 41
MILLER J: The appellant seeks leave to appeal against her conviction for attempted murder in the Supreme Court of Perth on 28 May 2003. The appellant requires an extension of time within which to file the notice of appeal lodged on 11 July 2003.
Extension of time
The application for the extension of time is supported by an affidavit of her solicitor, which reveals that there was some delay in the Aboriginal Legal Service obtaining instructions from the appellant, but following the receipt of an opinion and draft grounds of appeal from counsel, there was a further delay occasioned by "other work commitments" of the appellant's solicitor. This explanation for the delay is entirely unsatisfactory. Whilst it can be accepted that solicitors working in the Aboriginal Legal Service of Western Australia have a large area of responsibility and work under pressure, it is no proper explanation for a failure to lodge a notice of appeal that for a period of two weeks the matter was put to one side because of "other work commitments".
Because no sufficient reason is given for the failure to lodge the notice of appeal within time, this is a case in which it must be shown that there will be a miscarriage of justice if an extension is not granted. In Gavin v R (1992) 6 WAR 195, Malcolm CJ (at 198 ‑ 199) set out the relevant principle as follows:
"It has also been said repeatedly that in a case of lengthy delay the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: see Narkle v The Queen (unreported, Court of Criminal Appeal, WA, Library No 6108, 2 December 1985); Nicolakis v The Queen (unreported, Court of Criminal Appeal, WA, Library No 7184, 30 June 1988); and Chapman v The Queen (unreported, Court of Criminal Appeal, WA, Full Court, Library No 7962, 27 November 1989)."
Indictment
The appellant was tried on an indictment which alleged that on 20 February 2002 at Midvale she attempted unlawfully to kill Paul Steven Mellows and in the alternative, that on the same date at the same place with intent to do grievous bodily harm to Mellows, unlawfully did grievous bodily harm to him.
Evidence at trial
The case was heard before Roberts‑Smith J and a jury in the Supreme Court at Perth between 22 and 28 May 2003, and at the conclusion of the trial the jury found the appellant guilty of the offence of attempted murder.
The facts of the case were within a narrow compass. On 20 February 2002 the complainant resided at 5 Ewart Grove, Midvale with his de facto, Carol McGibbon, who was the sister‑in‑law of the appellant. On the afternoon of that day the complainant, Carol McGibbon, her children and the appellant were all at the house at Ewart Grove, drinking alcohol. A considerable quantity of alcohol was consumed.
Later in the day the complainant began to cook dinner. The appellant was then seated in the dining room at the house with Carol McGibbon. Whilst the complainant was speaking to Carol McGibbon the appellant got up from the table and went to the complainant, pulled back his head and cut his throat from right to left with a serrated‑edged knife.
Carol McGibbon gave evidence that prior to the incident the appellant had argued with the complainant. At this time she was holding a steak knife which she had been using to peel oranges at the table. The appellant was alleged to have said to the complainant "I'll kill you, you cunt", in response to which Carol McGibbon had taken the knife from the appellant's hand and put it on the table. However, the complainant and appellant continued to swear at each other. Carol McGibbon saw the appellant stand up from the table and assumed she was going to the toilet. When she next saw her she was in the kitchen behind the complainant. She put her arm around the complainant's head and pulled his head back, then pulled the knife over his neck.
Melissa Pearl McGibbon was the 12‑year‑old daughter of Carol McGibbon. She witnessed the incident. She saw the altercation between the complainant and the appellant when the appellant first picked up the knife and then saw the appellant sit back at the table, before she got up again and went to the complainant, pulling out a knife from her back pocket, lifting his head and drawing the knife across his throat.
The appellant testified that on the day in question she was drunk. There were arguments during the course of the day and early evening involving the appellant, Carol McGibbon and the complainant, but these were nothing out of the ordinary. She testified that after she had returned from buying a carton of beer she saw knives on the dining room table and she sat at that table playing with the knives as part of the "drinking games" that were going on. The appellant denied that she had picked up a knife and said that she would kill the complainant. She contended that she had risen from the dining room table to go to the toilet when the complainant said something to her, as a result of which she turned and saw the complainant "messing around with a knife".
The appellant claimed that she grabbed the knife that was on the bench and began "messing around with it" with the complainant and accidentally cut his throat. She said there was a sword fight and that it was "just messing around", during which time she grabbed the complainant by the back of the head and said "check this out", placing the knife across his throat. Her contention was that at the time she did this she thought she had the blunt side of the knife on his throat and not the sharp side. She then saw blood squirt out of his neck and was shocked. Her basic contention was that the whole incident was a joke which went terribly wrong and that she had no intention whatever to cut the throat of the complainant.
The issues before the jury
The summary of the evidence reveals that a central issue in the case was the circumstance in which the complainant's throat came to be cut. That is, was it by a deliberate slashing of the throat by the appellant, or was it in consequence of "playing games" which went wrong. This involved the further question whether, when the appellant placed a knife at the complainant's throat, she did so in the knowledge that she was using the sharp edge of the knife and with the intention of cutting his throat, or whether she did so with the intention of placing the blunt edge of the knife against his throat and playing a joke.
The ultimate question on the count of attempted murder was whether there was an intent to kill. In relation to the alternative count the question was whether there was an intent to do grievous bodily harm. However, to get to this question it was first necessary for the jury to determine as a matter of fact whether they were satisfied beyond reasonable doubt that the appellant had, as alleged by the Crown, stepped toward the complainant, pulled back his head and drawn the knife across his throat with the sharp edge, with the intention of causing his death, or at least grievous bodily harm. If the jury was left with a reasonable doubt on this issue, the appellant could not be convicted. The relevance of her testimony to the issue was obvious. If, as a result of what she said in evidence, the jury was left with a reasonable doubt as to whether the incident had occurred as contended for by the Crown, clearly they could not convict.
Directions to the jury
Unfortunately, the learned trial Judge's directions to the jury did not at any stage isolate for the jury as a fundamental question of fact the issue of how the complainant's throat came to be cut. That is, whether the jury could be satisfied beyond reasonable doubt it was as the Crown contended, or whether, as a result of the evidence given by the appellant, the jury was left with a reasonable doubt as to whether or not she had in fact approached the complainant and drawn the sharp edge of the knife across his throat with the requisite intent. His Honour did refer to the appellant's contention in the course of summarising the defence case and again, when reciting to the jury a narrative of the evidence, including that of the appellant.
When summarising the defence case the learned trial Judge said:
"You will recall, as Mr Young reminded you at the outset, that the accused has from the start admitted that she is guilty of unlawfully causing grievous bodily harm to Mellows. There's no dispute in this case about that. She has admitted it but she says - and Mr Young says you could not on the evidence be satisfied beyond reasonable doubt otherwise - that it was an accident; not, as Mr Young says, in the legal sense but in a common, ordinary sense way, that she did the physical act of pulling his head back and drawing the knife across his throat and neck, but she says it was an accident because she didn't realise it was the sharp edge of the knife and she was just, as it were, mucking about with him, having been engaged in a bit of drunken sword fighting with him in a joking sort of way."
When narrating to the jury the evidence of the various witnesses, the learned trial Judge summarised the evidence of the appellant in this way:
"She said she walked around when Mellows was cooking some chops. He said something to her and had a knife and was waving it around so she picked one up and, 'We were having a pretend sword fight and I accidentally cut his throat.' That's how she said it happened. She then described it in a little more detail. She said, 'Check this out,' and that's when she described how and she put her hand on his forehead, pulled his head back and drew the knife across the neck and throat, but saying she thought it was the blunt side of the knife. She did not realise it was the sharp side and this was part of the horseplay she said that they were in at the time."
Unfortunately, neither when summarising the defence case nor when rating the evidence of the appellant, did the learned trial Judge highlight to the jury the importance of reaching a conclusion on the factual issue of the circumstances in which the appellant came to cut the throat of the complainant. That is to say, whether there was evidence to satisfy the jury beyond reasonable doubt that the appellant had approached the complainant, pulled back his head and intentionally cut his throat with the knife using the sharp side, or whether, by reason of the appellant's testimony about the circumstances in which the incident occurred, they might be left in a reasonable doubt about that.
Grounds of appeal
The grounds of appeal (as amended at the hearing) are quite extensive and are as follows:
"1.The learned trial Judge erred in law in failing to direct the jury that they could not be satisfied beyond reasonable doubt that there was an attempt to kill or an attempt to cause grievous bodily harm unless they were satisfied beyond reasonable doubt that the applicant knew and intended that the sharp edge of the knife was facing in at the time she drew the knife against the complainants throat.
1A.The learned trial Judge erred in his direction on attempt (p 204, 205) by effectively removing the issue from the juries [sic jury's] consideration.`
2.The learned trial Judge erred by failing to give a proper inferences direction and by failing to direct the jury that they could not draw the ultimate inference of guilt unless they were satisfied beyond reasonable doubt that the prosecution had established that the applicant knew and intended that the sharp edge of the knife was facing in at the time she drew the knife against the complainants throat.
3.The learned trial Judge erred by failing to direct the jury that they could not find an intent to kill or cause grievous bodily harm if they had a reasonable doubt that the applicants conduct in the use of the knife was reckless.
4.The learned trial Judge erred by failing to direct the jury as to what use they could make of the lack of motive in assessing the likelihood of an intention to kill or cause grievous bodily harm, particularly where the learned trial Judge had instructed the jury (correctly) that the Crown did not have to prove motive.
5.The learned trial Judge erred by failing to direct the jury as to what use they could make of the applicants formal admission that she did cause grievous bodily harm and what such an admission meant.
6.The cumulative effect of the errors set out above, if not individually, have led to a miscarriage of justice.
7.Alternatively the conviction is unsafe and unsatisfactory.
7.1In all the circumstances, the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the applicant.
7.2The jury were not directed that the prosecution had to prove, beyond reasonable doubt, that the applicant intended to apply the sharp side of the knife blade to the victim's throat.
7.3It was not possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference that the applicant did not use the knife with an intent to kill (or in fact cause any injury at all)."
Grounds 1 and 2
These two grounds can be conveniently dealt with together. They contend that the learned trial Judge erred in failing to put before the jury the issue whether they were satisfied beyond reasonable doubt that the appellant knew that she was using and intended to use the sharp edge of the knife when she drew the knife against the complainant's throat. The grounds contend that this direction should have been given generally and in relation to the inference direction.
In my view these grounds have substance. In the first place, the learned trial Judge ought to have put to the jury the need to conclude as a matter of fact whether they were satisfied beyond reasonable doubt that the appellant had drawn the knife across the throat of the complainant in the knowledge that she was using the sharp edge of the knife, and with an intent to kill. They were, of course, required to be satisfied as to this beyond reasonable doubt. By reason of the fact that the appellant had contended that she was unaware that she was using the sharp edge of the knife and in fact thought that she had the blunt edge of the knife against the throat of the appellant, it was essential in my view that the learned trial Judge direct the jury that if as a result of her testimony they were left in any reasonable doubt on the issue, she must be acquitted. That direction was not given. The issue was, in my view, a "real issue" and in that sense counsel for the appellant was correct to rely upon what was said by Kirby J in De Gruchy v The Queen (2002)211 CLR 85 at [44] to the following effect:
[44]… The fundamental rule governing all judicial directions to a jury is that stated by this court in Alford v Magee. The only law that it is necessary for the jury to know is so much 'as must guide them to a decision on the real issue or issues in the case'. The trial judge is obliged to decide what the real issues are and to tell the jury, in the light of that decision, what the relevant law is. The judge should explain the law '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.' "
When the learned trial Judge came to direct the jury on the question of inferences, he said (inter alia):
"It is very important that when you are considering inferences if there is more than one inference open to you and one of them is adverse to the accused and the other is not, both of them are reasonably open to you, then you cannot draw the inference adverse to the accused. You must go with the other one that's reasonably open, which is in favour of the accused.
You can only draw an inference in those circumstances adverse to an accused, that is, against an accused, if you were satisfied beyond reasonable doubt that it is the only inference reasonably open. That is critical in this case, here in the context, of course, of the question of intent. That's the primary inference the crown is seeking to have you draw in this case. I will come to say more about that in a moment, but if there is another inference reasonably open when you're looking at drawing inferences from facts going to guilt, then you cannot draw the one which is adverse to the accused."
This direction was generally speaking in accordance with the standard direction given to juries on inferences, save that the learned trial Judge made reference to the possibility of two inferences being both reasonably open and the need to "go with the one that is reasonably open, which is in favour of the accused". In R v Wedd (2000) 115 A Crim R 205, Murray J (with whom Malcolm CJ and Wallwork J agreed) was critical of a direction in these terms. At [40] ‑ [41] his Honour said:
"[40]In my opinion her Honour erred in giving the direction unrelated to the evidence, but more seriously, she erred in the terms in which the direction was given because her Honour did not directly speak about the ultimate inference of guilt, but only of drawing any inference adverse to the accused, and although she said that such an inference could only be drawn if it was the only reasonable inference open upon the facts as the jury found them to be, she went on to say, contrary to the law as stated in Chamberlain (No 2) and Shepherd, 'That means if there are competing inferences equally open that can properly be drawn it would not be proper to draw an inference against the accused' (my emphasis).
[41]That direction involved an obvious departure from the appropriate standard of proof from which, in my opinion, the direction was not able to recover when her Honour went on to say that if there was more than one reasonable inference that could be drawn, the applicant was entitled to have that resolved in the manner most favourable to him. This area of the law is not about drawing inferences one way or the other, either in favour of or adversely to the interests of the accused. It is about the capacity of the jury to draw an inference of guilt of the offence charged. In my view ground 3 was made good."
Although counsel for the appellant submitted that the learned trial Judge had erred in giving the "inferences direction" in circumstances where it was unrelated to the evidence, this was not a case of circumstantial evidence in which directions on inferences needed to be interwoven with the evidence itself. In those circumstances, as was pointed out in R v Wedd (supra) at [39] by Murray J, the direction about the drawing of an inference of guilt would need to be attached to the body of evidence which was of a circumstantial character. I stress, however, that that was not this case.
Nevertheless, his Honour's direction in relation to inferences did suffer from reference to the drawing of an inference "in favour of the accused" which, as pointed out by Murray J in R v Wedd, was an inappropriate direction.
In my view, there is substance in the first two grounds of appeal, such that there were errors of law in the learned trial Judge's directions to the jury which were fundamental to the trial process. It can, in my view, properly be said that the appellant lost a chance fairly open to her of being acquitted, with the result that there was "in the eye of the law a miscarriage of justice": Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514.
Ground 1A
In the course of his directions to the jury on the law of attempt, the learned trial Judge explained the essential aspects of the law in that regard and turned to an example of the difference between a true attempt and something that was merely preparatory to the commission of an offence. His Honour said:
"… You will appreciate that the law has to apply generally to a whole range of situations which can't be forecast in advance, so the way the law deals with attempt is to cover situations where somebody attempts to commit an offence and very nearly completes it, as well as dealing with somebody who attempts to commit an offence but has really only just started to put it into effect, like somebody robbing a bank, for example.
It might be a nice question whether getting a mask and a pistol and standing outside the bank is enough to constitute an attempt or whether they actually have to go into the bank, for example, before they could be said to be actually trying to put their intent into effect. That's one case where there might be some real issue about that. I suspect you probably wouldn't have much trouble in the present case because it's difficult to see, I would think, what more a person could do, if they did have an intent to kill someone, what more they could do to put that into effect beyond drawing the knife across someone's throat.
If you get that far I would imagine you would have no difficulty finding it was an attempt, and indeed I didn't understand Mr Young to be suggesting anything different."
The complaint made on behalf of the appellant is that in using the words "I suspect you probably wouldn't have much trouble in the present case …" the learned trial Judge was effectively foreclosing the issue to be determined by the jury.
One can see that the learned trial Judge was endeavouring to explain to the jury an example of what might be the difference between a true attempt and one that was something merely preparatory to the commission of an offence. Unfortunately, when his Honour said to the jury that it was difficult to see what more a person could do by way of attempting to kill somebody in drawing a knife across someone's throat, his Honour was effectively endorsing the Crown case. At this point his Honour said nothing about the appellant's contention that she was fooling around with the complainant and had thought she was using the blunt side of the knife when she applied it to the throat of the complainant.
There is, in my view, merit in the contention that by use of the very example which was the issue in the trial, the learned trial Judge may have led the jury into thinking that it was his view that the case was effectively open and shut. That is, that if the appellant had drawn a knife across the complainant's throat, it was difficult to see how anybody could not conclude that there was an intent to kill. That was the ultimate issue for the jury, and should have been put to them in terms of the Crown case and the conflict with that case of the appellant's testimony as I have indicated. It was unfortunate to choose by way of example of what is the difference between attempt and something preparatory to the commission of an offence to take the very case under consideration.
In my view there is substance in ground 1A.
Ground 3
This ground contends that the learned trial Judge should have directed the jury that mere recklessness towards or foresight of the likelihood of harm occurring (death without specific intent) is not sufficient to prove an intent to cause death. Reliance was placed upon Cutter v R (1997) 143 ALR 498 where Kirby J (at 647) said:
"Where, as in the case of s 238(1) of the Code, intention is an element of the offence, there must be proof of a specific intent of the kind charged. Mere recklessness towards, or foresight of the likelihood of, such harm occurring without such a specific intent is not sufficient."
In my view, a direction on recklessness was unnecessary. It would have only confused the issue to be determined by the jury, namely, whether it was satisfied beyond reasonable doubt that the appellant applied the sharp side of the knife to the throat of the complainant and did so with an intent to kill or at least do grievous bodily harm. I am not persuaded that there was any requirement for the learned trial Judge to make reference to the issue of recklessness and I find no substance in this ground.
Ground 4
This ground contends that whilst the learned trial Judge correctly directed the jury that the Crown did not have to prove motive, there was a requirement in this case to direct the jury that there were factors which went to suggest that the appellant had no motive for attacking the complainant, particularly having regard to the appellant's testimony that there was no animosity between them and that they were mates.
However, I can see no substance in this ground. The learned trial Judge's direction on the question of motive was the standard direction and it was unnecessary, in my view, for his Honour to do more.
Ground 5
This ground contends that the learned trial Judge should have given a direction to the jury as to what use, if any, they could make of the appellant's admission that she had caused grievous bodily harm. It is contended that the learned trial Judge should have made clear to the jury that the admission was not a relevant consideration in relation to the issue of intent to kill or intent to do grievous bodily harm, and in particular should have explained that reckless behaviour was not exculpatory in relation to the charge of grievous bodily harm but was relevant to a determination of intent on the two counts on the indictment.
I can see no substance in this ground of appeal. The learned trial Judge made proper reference to the fact that there had been an admission that the appellant had unlawfully caused grievous bodily harm to the complainant and pointed out that if the jury was not satisfied beyond a reasonable doubt that the Crown had made out the count of attempted murder, or the alternative count, it would be open to the jury to return a verdict of guilty of causing grievous bodily harm. In my view, no further direction was required. It was made quite clear to the jury by the learned trial Judge that the question of intent to kill or intent to do grievous bodily harm was the critical question in relation to counts 1 and 2 on the indictment and there was no suggestion that the plea of guilty to causing grievous bodily harm impacted in any way upon the critical questions of intent.
Ground 6
It is unnecessary to deal with this ground.
Ground 7
This ground contends that the verdict of the jury was unsafe and unsatisfactory. It was not a ground that was strongly pressed in argument. The appellant's argument that the verdict of the jury was unsafe and unsatisfactory proceeded primarily on the basis that there was evidence to support the appellant's contention that the injury to the complainant resulted from "a joke that went wrong". Reference was made to the evidence of the complainant himself, which was said to support that contention, namely evidence that he had known the appellant for five or six months; that they drank frequently together; that they had been drinking for more than three hours on the day in question; and in relation to the actual circumstances of the event, that he was standing at the kitchen sink when his throat was cut. Counsel for the appellant relied upon the fact that the complainant agreed that during the course of the afternoon prior to the incident, the complainant and the appellant were getting on normally and that as the day progressed, there was a good deal of "fooling around, playing around, joking around".
Reliance was also placed upon the fact that Ronald McGibbon, the son of Carol McGibbon, testified that he had heard the appellant say immediately after the complainant sustained his injury words to the effect "I didn't mean to do that. I hope he doesn't die. Please forgive me". It was contended that even accepting that the appellant had, prior to the incident, said she would kill the complainant (whilst holding a knife), this statement was equivocal and consistent with the appellant's admission of causing grievous bodily harm but no more.
However, the prosecution case was strong. It established that the complainant had sustained a laceration which completely divided his anterior jugular vein. There was evidence, which the jury could accept, that the appellant had picked up a knife (with a blade of 15 cm in length and 2.2 cm in width) shortly after telling the complainant that she was going to kill him. There was evidence that she had walked to the complainant, pulled out the knife (which had been concealed in her back pocket), lifted the complainant's head back and cut him by in fact drawing the serrated edge of the knife across his throat from left to right. Further, there was evidence which the jury could accept that after drawing the knife across the complainant's throat the appellant had hit him on the head and abused him. Added to this was evidence that the appellant had endeavoured to conceal the knife under a rock at a neighbour's house.
Given this factual scenario, it was, in my view, open to the jury to find on the evidence (a) that the incident had occurred in the way in which the Crown contended; (b) the only rational inference that could be drawn was that the appellant had knowingly and intentionally cut the complainant's throat with the serrated edge of the knife with the intent either of killing him or at least of doing him grievous bodily harm. It was up to the jury to determine whether it was satisfied beyond reasonable doubt of each of these matters.
The test to be applied as to whether the verdict of the jury was unsafe or unsatisfactory in this case is set out in M v The Queen (1994) 181 CLR 487 by Mason CJ, Deane, Dawson and Toohey JJ at 493 in the following terms:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
In this case I have no hesitation in concluding that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of attempted murder. The issues which arose for determination were truly jury questions, and
apart from the learned trial Judge's failure to direct the jury properly in certain areas of the law, on the evidence as led at trial, it could not be said that a jury properly instructed could not have been satisfied beyond reasonable doubt of the guilt of the appellant. In my view there is no substance in ground 7.
Conclusion
Because the appellant has made out grounds 1, 1A and 2 of the grounds of appeal, I consider that there should be an extension of time within which to appeal, the appeal should be allowed, and there should be a direction that there be a retrial.
MCKECHNIE J: I agree with the reasons given by Miller J and the orders he proposes.
WALLWORK AJ: I agree with the reasons for judgment of Miller J and the conclusions which his Honour has reached.
There is nothing I wish to add.
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