R v Clothier

R v CLOTHIER
[2001] SASC 9
Court of Criminal Appeal: Mullighan, Williams and Bleby JJ

MULLIGHAN J The appellant was found guilty of murder by verdict of the jury and appeals against that conviction.
The incident out of which the charge arose occurred about 4.00 am on 1^st April 2000 on the banks of the River Murray at Swan Reach when the appellant stabbed Shane Mervyn Mueller five times causing his death.
In view of the issues raised on this appeal, it is necessary to set out the background to, and circumstances of, the killing in some detail.
The previous night the appellant, who was aged 20 years at the time, and a man called Paul Williams went to the Swan Reach Hotel at about 10.30 to 11.00 pm and remained there drinking and playing pool until about 1.00 am.
Mr Mueller, who was aged 27 years, lived at Punyelroo near Swan Reach with his mother and sister. During that evening, he was at home with them. He was drinking beer and smoking marijuana. He went to the hotel at the same time as the appellant. He met the appellant and Mr Williams at the ferry. Before going to the hotel and after crossing the river on the ferry, the appellant drove his motor vehicle along a dirt track on the river bank underneath the hotel which is situated on a cliff near the road from the ferry. He and Mr Williams left the vehicle at the place where they later made a camp site and then went to the hotel on foot arriving at about the same time as Mr Mueller.
The three men were drinking beer together at the hotel and playing pool in a room near the front bar. Ms Poole was working in the bar until about midnight. There were other people in the hotel that night, including Daniel Hein. There had been an eight-ball competition. Mr Mueller introduced himself to Mr Hein. According to Ms Poole, none of the men was affected by alcohol. Damien Wilksch arrived at the hotel later in a four wheel drive Toyota utility. Mr Stapleton was also working at the hotel that night. He saw Mr Hein and Mr Mueller and two other men who were the appellant and probably Mr Williams from time to time until he closed the hotel at about 1.00 am.
Mr Stapleton did not regard any of the men at the hotel as being significantly affected by liquor, although he told the jury that all of them had consumed too much to drive a motor vehicle. After the hotel closed, Mr Mueller, Mr Hein, Mr Wilksch and others remained in the car park of the hotel for a time.
A number of men who were at the hotel gave evidence at the trial. All of them told the jury that there was no trouble at the hotel that night and the mood among the customers was normal. All of them said that the mood of Mr Mueller was pleasant or happy and that he was not intoxicated, although some of the witnesses said that he was affected by alcohol. One witness, Patrick Woods, described him as pretty drunk.
After the hotel closed, the appellant and Mr Williams went down steps to the river bank where the appellant had left his motor vehicle. The appellant told the jury that when he left the hotel he was affected by alcohol. He said he could walk properly but he stumbled as he walked down the stairs. According to him, he consumed three drinks of whisky or bourbon, one schooner of beer and a soft drink at the hotel. He prepared a space next to his motor vehicle and lit a camp fire. He obtained swags from his vehicle and took off his shoes. He and Mr Williams lay down on the swags. There was little artificial light in the area. The appellant said that he may have opened a stubby of beer and smoked some cannabis.
Shortly after 1.00 am Mr Hein, Mr Mueller and Mr Wilksch left the hotel car park together in the Toyota utility and went to the river bank where the appellant and Mr Williams were camping. Mr Wilksch was driving. It seems likely that they went to the river bank to see the appellant and Mr Williams to continue drinking. In the course of attempting a U-turn, the rear of the utility went off the bank and into the river. It was stuck in that position and could not be driven out. Pool cues belonging to Mr Hein fell out of the utility into the river. He removed clothing, dived into the river and recovered them. Mr Hein went to the ferry to seek assistance but was not successful. He returned to the camp site.
I summarise the evidence of each of the witnesses present relevant to matters in issue when Mr Mueller was killed. Mr Wilksch told the jury that after he had backed his vehicle into the river, he made a check and was satisfied that it would not slip further into the river. He lived about 15 kilometres away and intended to stay with his vehicle until it could be towed out of the river. He went over to the camp fire. He did not recall Mr Hein leaving to get assistance and thought that he, Mr Mueller and Mr Hein all went to the camp fire together. Mr Knight, the ferryman, recalled Mr Hein approaching him for assistance.
Mr Wilksch did not recall any conversation about using the appellant’s vehicle to pull the utility out of the river and said that such a small car would not be capable of doing so. He did not know the appellant and Mr Williams. According to him, normal conversation occurred and changed later when the appellant gave Mr Mueller, what he described as, a hard time. He said that he could not remember what was said but Mr Mueller was very placid and did not want to partake in a fight. The appellant was picking on Mr Mueller and verbally abusing him. Mr Wilksch said that Mr Mueller did not respond and at one stage said that he was not interested in fighting. Mr Williams, he said, did not seem interested. This behaviour of the appellant persisted for a time.
Mr Wilksch said that he had had enough. Mr Mueller did not want to fight and so Mr Wilksch took his shirt off and offered to fight the appellant. The appellant said, “I don’t want you, I want him” and walked off and sat down. Everything, he said, was calm. Mr Mueller stood his ground and had a beer. Mr Williams did not respond. Mr Wilksch said that he thought Mr Mueller was also drinking beer. He described the mood at the camp fire as “no worries”. He said he went to his utility and went to sleep in the front seat. Mr Mueller was still by the fire. There were no arguments. His next memory was being told that Mr Mueller had been stabbed. After Mr Hein went for assistance, Mr Mueller died. Mr Wilksch was clearly intoxicated on his own evidence and he acknowledged in cross-examination that he was drunk. He and a friend had consumed a bottle of whisky over a period of about four hours. He also consumed beer and a few drinks of Jim Beam. He said that at no stage did Mr Mueller become agitated.
Mr Hein told the jury that after leaving the ferry he returned to the camp site and as he did so he heard conversation which was getting louder and louder. He said he could not remember what was being said or by whom. When he arrived at the camp site, the appellant said that he wanted Mr Mueller and Mr Wilksch to leave. According to Mr Hein, the appellant said that if they did not go away, he would fight Mr Mueller, which he said several times. Mr Mueller’s response was that they had done nothing wrong and he did not want to fight. Mr Hein described the appellant’s demeanour as aggressive and Mr Mueller’s behaviour as “very tame”. He said that he did not remember any conversation about using the appellant’s motor vehicle to pull the utility out of the river. He said he was not too sure if there was any conversation, particularly from Mr Mueller, asking to borrow the appellant’s motor vehicle to get help to recover the utility. He confirmed that Mr Wilksch said to the appellant that if he wanted to fight, he could fight him and that the appellant then backed away by walking back a little and leaning against his motor vehicle. Mr Hein said that he was not too sure if the appellant said that he did not want to fight anyone, that he was just there to sleep and that it was for the three men to sort out the problem with the utility.
Mr Hein told the jury that he then laid down by the fire and tried, unsuccessfully, to sleep. Mr Williams had remained on his swag and had told the appellant to calm down. Mr Hein said that he went to sleep for a short time. When he awoke, Mr Wilksch had gone and the appellant and Mr Mueller were talking. Mr Hein then went to the utility and then to the appellant’s motor vehicle to try and sleep. He got into the driver’s seat. According to him, the appellant and Mr Mueller were arguing at this time. The appellant said that he wanted them to leave. Mr Hein was the only witness at the trial apart from the appellant who saw the incident when Mr Mueller was killed. He said the two men were yelling at each other and started wrestling. He described what then happened as follows:
“Q When you jumped out the car, what did you see.
AThey were trying to throw each other to the ground.
QSo when you first see them, are they upright.
AYes.
QAnd are they in contact with each other.
AYes.
QTry and describe to us what you saw. What are they doing, in terms of their arms or legs or whatever.
AThey would have both grabbed each other about here [INDICATES] I suppose, and tried to -
HIS HONOUR
QYou are indicating there up around the bicep area of the arm.
AYes, on the jumper. Trying to throw each other to the ground.
XN
QThen what happened.
AThen they must have fell on the ground and they started - well, wrestling, it looked like.
QSo they were both on the ground.
AYes.
QAre they moving or are they still. Describe what you saw.
AThey were wrestling with aggression with each other.
QI am not suggesting anything here, but I am just trying to give you some examples to work with. Are they rolling around, or are they just wriggling on the spot. Describe what you saw?
AThey were sort of on the same spot and just, yes, trying to get each other on the ground, I guess.
QIs one on top of the other or are they side by side.
AI can’t remember.
QCan you remember anything that was being said.
ANo.
QWhen they’re on the ground, did you see anything of either man’s arms.
ANo.
QWhat’s the next thing you saw then.
AChris jumped up and started yelling to Paul, “Pack you stuff up and let’s go”.
QWhat was Shane doing at that stage.
AHe was on his knees, crouched over.”
Mr Hein said that the appellant and Mr Mueller were about five metres from the back of the car and the incident occupied less than one minute.
According to Mr Hein, during this incident he heard Mr Williams say “Don’t do it”. Mr Hein said that there was some light from the hotel and the ferry and he could see what happened. He was out of the motor vehicle and about three or four metres away. He was telling them to stop.
Mr Hein ran to the ferry and asked Mr Knight to call an ambulance. It was then about 4.00 am. Mr Hein told the jury that he did not see Mr Mueller drink any alcohol after leaving the hotel. In cross-examination, he said that he consumed half a can of Jim Beam and he was not sure if the others were drinking at the camp site. Mr Hein said that he did not feel intoxicated by the alcohol which he had consumed at the river bank.
Mr Hein denied that Mr Wilksch was upset that the utility was partly in the river and said that he could not remember if Mr Mueller was upset and angry that he was not able to get home. He said that Mr Wilksch was not upset. He said he did not know if Mr Mueller consumed cannabis at the river bank.
A number of witnesses who had known Mr Mueller for some time gave evidence and told the jury that he was of pleasant disposition when intoxicated.
The appellant gave evidence at the trial. He told the jury that on 31^st March he had been working. He arrived at Mr Williams’ home at about 6.00 pm. He drank a stubby of beer and they then went to the Kersbrook Hotel where he drank three schooners of beer and had a meal. They returned to Mr Williams’ home and then went to the hotel at Swan Reach. Whilst on the ferry, they met Mr Mueller who had two remaining cans from a six pack. Mr Mueller and Mr Williams had a conversation about football. Mr Mueller got into the car and they drove to what became the camp site. They walked to the hotel.
At the hotel each of them consumed alcohol. The appellant said that he was slightly affected by alcohol when he arrived at the hotel. Mr Williams played eight-ball with Mr Mueller. Later, others came into the pool room. The appellant told the jury that he wanted to leave and return to the camp site but Mr Williams declined. He said that his reason for wanting to leave was he thought something was about to start between Mr Williams and Mr Wilksch as they appeared aggressive towards each other. They were talking about the way they fight.
The appellant said that he probably had about three drinks of whisky or bourbon and one beer at the hotel and was affected by alcohol.
Upon returning to the river bank and after they had established the camp fire, they were lying on their swags and each consumed another stubby of beer. The appellant had two smokes of cannabis from Mr Williams’ pipe. The utility drove along the track and slightly past the camp fire and became stuck in the river. Mr Mueller approached the camp and there was conversation. At his suggestion, he and the appellant, and later Mr Williams, went to the utility and sat on the bull bar on the front to place weight on the vehicle. The attempt to remove the vehicle from the river was unsuccessful. They all then went to the camp fire.
According to the appellant, Mr Mueller then suggested that the appellant’s motor vehicle be used to try and tow the utility out of the river. The appellant rejected that suggestion. He then asked the appellant to drive him to the main street of Swan Reach to get a tractor. The appellant refused because he told the jury he was feeling intoxicated. Then Mr Williams offered everyone a beer.
The appellant said that he saw Mr Hein leave to try and obtain assistance from the ferry man. When he returned, Mr Mueller asked the appellant to drive him, presumably, to the town. He refused. According to the appellant, Mr Mueller was persistent. There was disagreement between them and voices became raised. The incident of Mr Wilksch taking off his shirt and asking the appellant if he wanted a fight then occurred. The appellant responded by saying that he did not want a fight. He stepped back and into the fire. He was barefooted and sustained burns to a foot. Mr Wilksch went to his utility. The appellant described what then happened:
“QThen what occurred.
AA few minutes later, Shane may have stepped a few metres away to go to the toilet. I can’t recall, but Shane started to ask if he could borrow my car.
QThen what occurred.
AI said ‘No, I don’t let anyone drive my car, especially someone I don’t know’.
QThen what occurred.
AHe started getting a little bit pissed off that I wouldn’t lend it to him.
QThen what occurred.
AI think Paul went and said to us ‘Just chill out’ to both of us.
QThen what occurred.
AShane said something like ‘Oh well, I’ll just take it then’.
QDuring this, where was Mr Hein, do you know.
ANo, I’m not sure.
QThen what occurred.
AWhen he said ‘I’ll just take it’, I walked away, down a bit further down the track. I had intended on going to the toilet.
QWhat occurred.
AAs I was walking away, Shane was yelling something about the car and I was yelling stuff back like ‘Fuck off’.
QCan you recall what he was saying about the car.
AJust that he would take it without my permission.
QI think you used words ‘Fuck off’ to him.
AYes.
QThen what happened.
AWhen I got into where I planned to go to the toilet, I heard what I thought was Shane getting closer, walking towards me. I turned around and he was walking towards me.
QWhat happened then.
AHe grabbed me, or thrown a punch, and he was grabbing me around the shirt [INDICATES].
QWhat happened then.
AWe wrestled and I had a pocket knife in my pocket.
QThat pocket knife, when had you placed that pocket knife in your pocket, do you recall.
AIt wasn’t in my pocket. The pants I was wearing had pockets - it was attached to my pants near the zip.”
............
QYou took the knife out.
AYes.
QWhat happened then.
AShane grabbed my other hand, this hand [INDICATES], the knife in my hand.
QWhat happened.
AI think he was trying to get the knife out of my hand. I’m not sure if he had seen it or not, but he had hold of my hand.”
The appellant said that it was pitch black. The camp fire was dying down. His evidence continued:
“QWhen you took it out from your trousers, you had it in your right hand.
AYes.
QWas the blade open or shut.
AI had opened it with my right hand, with my fingers.
QAs you took it out.
AYes.
XN
QThen what happened.
AWhilst we were wrestling with each other, he had his hand on my hand with the knife and that. The knife had had the lock - the knife had closed up.
QDid that cause you an injury.
AYes, it cut my finger, my index finger.
QWhat happened then.
AIt took me a little bit to notice that it was warm blood on my hand. That made me realise - and my bone and the knife on my bone.
QThen what happened.
AFreaked out.
QThen what occurred.
AI pulled my right arm back away from Paul [meaning Mr Mueller] to retrieve it, so I had hold of the knife.
QThen what occurred.
AI opened it up properly so it was open then.
QWas he holding you at this stage.
AAbove here, yes, still [INDICATES].
QThen what happened.
AI swung at Shane with the knife.
QAnd what occurred.
AWhen Shane let go of my shirt, I ran through him and towards my car.
QYou said you swung your arm. How many times did you swing your arm.
AI was swinging until he let go.
QWhy did you swing your arm.
ABecause I was scared that he would get the knife.
QYou indicated that he let go of you.
AYes.
QHow long was this period of time you’re talking about.
ASeconds.
QWhat happened when he let go of you.
AI ran through him, towards the car.”
Later in his evidence he said:
“QIf I can just take you back to the scene where you were fighting with Mr Mueller. When he came towards you, can you say whether he was running or walking.
AHe wasn’t running, but it was a brisk walk.
QWas there something about his demeanour which indicated whether he was happy, angry, upset.
AHe was sort of swinging his shoulders a little bit.
QHe came over to where you were standing, is that right.
AYes.
QAnd that was some distance away from the camp fire.
AYes.
QIn what direction, can you say.
AIt was away from the punt.
QSo in a northerly direction along the bank.
AYes.
QIf you don’t know, say ‘I don’t know’.
ANo.
QWhy did you swing your arm with the knife.
AI was scared that he was going to use the knife on me.
HIS HONOUR
QYou said you did not intend to kill Mr Mueller or cause him serious harm. When you swung the knife, you said you were scared he was going to use it on you, correct.
AYes.
QWhen you swung the knife, did you intend to strike him with the knife.
AYes.
QDid you have in mind striking him anywhere in particular.
ANo.
CROSS-EXAMINATION BY MR PEARCE
QYou swung that knife at him five times, didn’t you.
AThat’s what I was told, yes.
QDo you remember doing that.
ANo.
QDo you agree that you must have swung the knife at him five times.
AOnly after reading some of the reports.”

He then went to the camp site to Mr Williams. He put his things in his motor vehicle. He told Mr Williams about the wound to his finger and that he thought he had stabbed Mr Mueller. He and Mr Williams then left in the motor vehicle. He said that he left because he was pretty sure that he had stabbed Mr Mueller. He was located by the police and arrested at about 12.30 pm on that day.
There were five stab wounds on Mr Mueller’s body, four in the chest and one in a buttock. Two of the wounds penetrated the heart. Mr Mueller died soon after the stabbing.
The appellant told the jury that he was not aware of having “swung” the knife at Mr Mueller that many times. There was a wound to Mr Mueller’s buttock which the appellant would have caused by swinging his right arm in a roundhouse way. The appellant said that he was standing when he inflicted the wounds to Mr Mueller’s chest. He denied that they were wrestling on the ground at any stage.
The appellant told the jury that he knew that by swinging the knife at Mr Mueller, he was likely to strike him with the knife which was what he intended to do.
He said that the incident occurred about five metres from behind his motor vehicle.
During cross-examination, he said that Mr Mueller was drunk. He said that he could not see any way of getting past him when Mr Mueller walked towards him just before the stabbing. He said he pulled the knife on him when he realised he was not going to get away and at about the same time as Mr Mueller grabbed him but he was not sure.
The appellant told the jury that there were no problems at the hotel between him and Mr Mueller and when the three men first came down to the river bank. He said that matters changed when Mr Mueller persisted in asking for his motor vehicle. At first he refused but later he asked Mr Mueller to leave the camp site. He said he never mentioned fighting him. He denied that he told Mr Wilksch when he took his shirt off and spoke of fighting, that he did not want him, he wanted Mr Mueller. He told the jury that he may have said that he did not have a problem with Mr Wilksch and that he just wanted Mr Mueller to leave. He denied that he was the aggressor at the river bank.
When asked if Mr Mueller was aggressive, the appellant said, “Yes - I’m not sure if it’s aggressive or just pissed off that I wouldn’t lend him my car, but, yes, I suppose both mean pretty much the same thing”. He agreed that he made his point clear to Mr Mueller that he would not let him use his motor vehicle. He told the jury that Mr Mueller said, “I’ve done nothing wrong, I don’t have to leave”. He did not want the others to leave, it was only Mr Mueller who was causing the problem. He agreed that Mr Mueller never went over to the motor vehicle or try to start it but he did say, “I’ll take it anyway”. It was at that time that the appellant walked away from the camp fire. He said that he thought the keys were in the ignition. The appellant said that he did not take the keys out of the ignition and that he did not, at the time, turn his mind to where the keys might be.
The following evidence was given by the appellant:
“QHave you made up this story about Mr Mueller saying he was going to take your car without your permission.
ANo I have not.
QIt gives some explanation as to why you might have attacked him with a knife a few minutes later.
AWas that a question then?
QI’m suggesting that you made up that story.
ANo I haven’t.
QAbout Mr Mueller wanting to use your car.
ANo I did not make up any story.
QI suggest you’ve done so in order to provide an explanation for attacking him with a knife.
AI did not attack him with a knife.
QWhat did you do with the knife. He’s got five wounds, what did you do with it.
ADefended myself.”
He acknowledged that Mr Mueller had not threatened him or punched him prior to the stabbing, but had grabbed him.
The appellant denied that he stabbed Mr Mueller because he lost his temper and was angry with him. He said he was scared because of the wound to his finger. He told the jury that he did not mean to stab him in the chest. He agreed that the stabbing was not an accident. He denied that he deliberately put the knife in Mr Mueller’s chest but he acknowledged that he did intend to strike him but not to strike him in the chest four times. He said he was trying to get him to let go so that he could run through him and get to his motor vehicle. He acknowledged that he did not see Mr Mueller, Mr Hein or Mr Wilksch with any type of weapon. He said that he put the knife in his pants after Mr Wilksch had offered to fight him.
He explained what he meant by “freaked out”. He said he was “worried, scared for my safety, life, whatever” and a little later he said that he meant “scared for my life”.
Mr Williams was not called to give evidence. He had originally been charged on the same Information with assisting an offender, namely the appellant. An order was made for separate trials. No point was taken by the prosecutor or defence counsel at the trial as to his absence from the witness box.
I mention two other pieces of evidence. At about 5.45 pm on the day of the stabbing, a sample of blood was taken from the appellant which contained an alcohol level of not less than 0.015 grams in one hundred millilitres of blood. Mr Felgate, a forensic scientist, expressed opinions about the difficulty in trying to estimate from that reading the blood alcohol level of the appellant at the time of the stabbing because of variation from person to person in absorption and elimination rates. He estimated that at the time of the stabbing, the appellant may have had a blood alcohol level as low as 0.05 and as high as 0.4. If he had an average elimination rate, his level could have been in the vicinity of 0.18 per cent. However, the appellant told the jury that he did consume some alcohol after the stabbing and it is highly unlikely that his blood alcohol level could have been at the upper level of the range postulated by Mr Felgate. A blood alcohol level in that order would almost certainly render any person totally, or almost totally, physically incapacitated.
Analysis of the blood of Mr Mueller was also undertaken. He had an alcohol level of 0.192 grams in 100 millilitres of blood and a moderate level of THC which is the active constituent of cannabis.
It may be accepted as a reasonable possibility that both the appellant and Mr Mueller were significantly intoxicated at the time of the stabbing.
The evidence established that Mr Mueller was aged 27 years, about 5’11” tall and of average build. The appellant was not only younger, but shorter in height and slighter in build.
At the trial, the appellant claimed that he acted in self-defence when stabbing Mr Mueller and that he did so without the necessary intention for murder. These “defences” were rejected by the jury.
I turn to the grounds of appeal
Ground 1
By this ground the appellant complains that the learned Trial Judge erred in failing to leave provocation to the jury.
Near the end of the evidence of the appellant, and the commencement of the addresses of counsel, the learned Trial Judge asked counsel for the defence if it was submitted that the defence of provocation should be left to the jury. The appellant’s counsel said that no such suggestion was made and the learned Trial Judge intimated that the defence of provocation did not arise. Counsel for the prosecution did not submit that the defence of provocation should be left to the jury. Neither counsel addressed the jury on provocation.
Furthermore, as has been seen, the appellant, in his evidence, did not claim that he had lost self-control. It is well established that if there is evidence of provocation fit to be left to the jury, the learned Trial Judge must do so regardless of the submissions of counsel. The position is succinctly set out in the following passage of the judgment of King CJ in The Queen v Earley (unreported, 6^th April 1990, Jd No 2199) and the cases to which he referred, at 4-6:
“In Van Den Hoek v The Queen (1986) 161 CLR 158 at p 161 Gibbs CJ, Wilson J, Brennan J and Deane J in a joint judgment quoted with approval a passage from the judgment of the Judicial Committee of the Privy Council delivered by Lord Tucker in Bullard v The Queen 157 App C 635 at 642:
‘It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.’
Mason J said at p 169:
‘The failure of an accused person to testify to loss of self-control is 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: Lee Chun-Chuen. The jury’s capacity to infer loss of self-control from appropriate facts is underscored by the comment of Lord Devlin, speaking for the Judicial Committee, in Lee Chun-Chuen 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, especially when the nature of the main defence would account for the falsehood. 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.
It has been repeatedly held that if there is material on which a jury, acting reasonably, could find manslaughter as a result of provocation, it is the duty of the trial judge to put the issue to the jury, even if there is no suggestion at the trial that the issue should be put to the jury: Parker; Pemble v The Queen’.
Mason J at p 168 indicated that the doctrine of provocation applied not only where the sudden and temporary loss of self-control resulted from anger and resentment, but also where it resulted from emotions such as fear and panic.
It follows from the above authoritative statements of the law that if on the evidence it was reasonably open to the jury to bring in a verdict of manslaughter on the basis of provocation, that issue ought to have been left to the jury notwithstanding that the appellant did not give evidence of loss of self-control and notwithstanding that the issue was not raised by the defence and that the judge was not asked to direct the jury on provocation. The test is whether there is ‘evidentiary material which, if accepted, is capable of producing in the minds of a reasonable jury a reasonable doubt as to whether the killing of the deceased by the accused did not occur in consequence of a sudden and temporary loss of self-control brought about by words or conduct of the deceased and as to whether those words or conduct might not have caused an ordinary person to lose his self-control and to do what the accused did’, The Queen v Romano (1984) 36 SASR 283 at 286. The question whether a defence should be left to the jury is to be determined upon the version of the facts most favourable to the accused, The Queen v R (1981) 28 SASR 321 at 325.”
It is also instructive to have regard to the test as enunciated by King CJ in The Queen v R (1981) 28 SASR 321. He said, at 321-322:
“It is necessary to recall certain basic principles of the law of homicide. The killing of one person by another with intention to kill or do serious bodily harm is murder. Such a killing may, however, be reduced to manslaughter if the killing results from a sudden and temporary loss of self-control on the part of the killer which is brought about by acts or words of the deceased amounting in law to provocation. To amount in law to provocation the acts or words must satisfy the following tests: (1) they must be done or said by the deceased to or in the presence of the killer; (2) they must have caused in the killer a sudden and temporary loss of self-control rendering the killer so subject to passion as to make him for the moment not master of his mind; (3) they must be of such a character as might cause an ordinary person to lose his self-control to such an extent as to act as the killer has acted.”
He went on to discuss the respective functions of the judge and the jury citing a passage of the speech of Viscount Simon in Holmes v Director of Public Prosecutions [1946] AC 588 at 597:
“In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the judge lays down as matter of law, and what the jury decides as matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.”
See also Van Den Hoek v The Queen (1986) 161 CLR 158 at 162 and Stingel v The Queen (1990) 171 CLR 312 at 333-334, 337.
In Van Den Hoek Mason J approved, at 167, the observation of Smith J in Reg v Tikos (No 1) [1963] VR 285 at 299 that it was sufficient “if there was circumstantial evidence of a loss of self-control due to a mixture of fear and anger”. Furthermore the loss of control may result from cumulative conduct: R v Chhay (1994) 72 ACrimR 1.
In R v Pangilinan [2001] 1 QdR 56, the Queensland Court of Criminal Appeal concluded, at 64:
“What is necessary is that the provocative conduct (which might be found in threats, physical gestures and conduct by a group of persons of which the victim was reasonably thought to be a member) produces a temporary loss of self-control at the time when the act causing death is committed.”
Mrs Shaw pointed to the following matters which, it is submitted, when considered together, establish a version of the facts on the evidence most favourable to the appellant of provocation fit to be left to the jury.
When the appellant told Mr Mueller on the last occasion to “fuck off”, the appellant was yelling at the top of his lungs. At about the time the appellant turned away to urinate, Mr Mueller said, “Fuck you, I’ll take it anyway”. The appellant “freaked out” when his finger was cut which must be considered against the background of the appellant being angry, if that was the case, despite his denial of that emotion. These matters are to be considered against the background found in the evidence. The appellant was intoxicated from the consumption of alcohol and cannabis, he was in pain following the burns to his foot. There had been aggression by Mr Wilksch in consequence of which the appellant put the knife into his pants. Mr Mueller persistently asked the appellant to drive him in his motor vehicle, to borrow the motor vehicle and refused to leave the camp site. He threatened to take the motor vehicle unlawfully and shortly before the stabbing approached the appellant in an aggressive manner. There was a build up of tension between the appellant and Mr Mueller caused by Mr Mueller’s coming on to the camp site and making unreasonable demands and persisting in them in an aggressive manner. Also, there was the perception by the appellant of Mr Mueller intending to punch him and then grabbing him.
I reject this submission. In my view, there was no evidence fit to be left to the jury of provocation and both the learned Trial Judge and defence counsel at the trial were correct in that regard. There was no evidence to suggest an ill feeling or difficulty between the appellant and Mr Mueller before he and his companions arrived at the camp site. Indeed, the evidence is to the contrary.
The men were together at the river bank for over two hours before the stabbing occurred. There is no suggestion in the evidence that Mr Mueller, Mr Hein and Mr Wilksch invaded the camp site. There is nothing in the evidence of the appellant to that effect. There was no issue between any of the men at that time and Mr Williams offered drinks to each of the men. There is no suggestion in the evidence, including the evidence of the appellant, that he was in fear of any of the men or that he was unhappy at their presence at the camp site when they arrived or for some time thereafter.
Taking the evidence as most favourable to the appellant, the problem that arose related to his motor vehicle and led to his telling Mr Mueller to leave. As has been seen, the appellant’s evidence was that he had no problems with the other two men, only with Mr Mueller persistently asking him about the motor vehicle. The appellant’s evidence was that he only became loud and aggressive when he responded to Mr Mueller by telling him to “fuck off”.
However, the evidence of the other men was to the effect that the appellant was angry and aggressive towards Mr Mueller. Even if that is the evidence most favourable to the appellant, on the issue of provocation the only evidence as to what happened before the confrontation which led to the stabbing was the evidence of the appellant. Mr Mueller said that he would take the motor vehicle anyway, the appellant told him to “fuck off” and walked away to urinate. As has been seen, on the appellant’s evidence, he walked away from his motor vehicle. Mr Mueller then walked towards him with a brisk walk swinging his shoulders a little. I accept the submission of Ms Kelly, who appeared for the respondent, that this is the high point of the conduct of Mr Mueller from the point of view of the appellant. It could not amount to conduct or words amounting to provocation. Furthermore, at this stage, there is no evidence capable of establishing that the appellant had a loss of self-control. Also, none of this conduct was of such a character as might cause an ordinary person to lose self-control to such an extent as to act as the appellant acted in stabbing Mr Mueller.
It remains to be considered what occurred during the fight. As has been mentioned, Mr Mueller made no threats to the appellant. Indeed, the appellant told the jury that he could not remember Mr Mueller saying anything. There were no words which could amount to provocation. On the evidence of the appellant, the only conduct of Mr Mueller was that he tried to punch him when he grabbed the appellant with an open hand. He grabbed the appellant’s hand in which the knife was held and the injury to the appellant’s finger occurred. There were no punches or kicks from Mr Mueller. As has been mentioned, the appellant said that he “freaked out” at this stage meaning that he was scared for his life.
There was no evidence as to why Mr Mueller followed the appellant some four or five metres immediately before the struggle, and grabbed hold of him if that is what happened. However, this conduct could not amount to provocation. There is no evidence of the required loss of self-control by the appellant or from which it could be inferred as may be seen from his own evidence as to why the stabbing occurred. It might be said that the number of stab wounds may permit the inference that the appellant had lost self-control. I do not think such an inference could be drawn even as a reasonable possibility. The number and location of the wounds do not suggest they were caused in a frenzy. Furthermore, this conduct could not have caused an ordinary person to lose self-control to the extent required.

This ground fails.
Grounds 2, 3, 4 and 6
These grounds may be considered together. They complain of misdirections and failure to give directions on the issue of self-defence. It is convenient to mention first one matter asserted in Ground 3, namely that the learned Trial Judge failed to direct the jury as to the relevance of the fact that the deceased, whilst intoxicated, was threatening to unlawfully take possession of the appellant’s vehicle.
Section 15A of the Criminal Law Consolidation Act 1935 governs defence of property in the criminal law in this State. It provides:
“15A    (1)    It is a defence to a charge of an offence if -
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable -
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)if the conduct resulted in death - the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)    It is a partial defence to a charge of murder (reducing the offence to manslaughter) if -
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable -
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)the defendant did not intend to cause death; but
(c)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)    For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises -
(a)with the intention of committing an offence against a person or property (or both); or
(b)in circumstances where the trespass itself constitutes an offence.
(4)    If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”
Property is defined in s 5(1) as meaning real or personal property. Obviously, the appellant’s motor vehicle is property for the purposes of s 15A. It may be seen that if it was a reasonable possibility that the appellant genuinely believed that his conduct in stabbing Mr Mueller was necessary and reasonable to protect his motor vehicle from unlawful appropriation, the defence of property would arise. It may be seen from the evidence of the appellant that no issue of self-defence of his motor vehicle arose. He did not offer defence of the motor vehicle as the reason for stabbing Mr Mueller. He thought he left the key in the vehicle. He walked away from it when he walked from the camp fire. He did not move towards the vehicle so as to protect it. His reason for stabbing Mr Mueller had nothing to do with the motor vehicle. At no time during the course of the somewhat lengthy altercation with Mr Mueller during the night did he make any move to take the vehicle. The intoxication of the appellant, such as it was, had no bearing upon any of these matters. As has been seen, on his own evidence, he swung his arm, with the knife in his hand, because he was scared that the deceased would get the knife and use it on him. There was no suggestion of concern for his property. By “freaking out” he said he was scared for his own safety and his own life, not that of his property. There is no basis in this complaint.
I now turn to the other complaints about directions and misdirections in the context of self-defence. Because of the submission that the directions of the learned Trial Judge were confusing and the many grounds of complaint advanced on the hearing of the appeal, it is necessary to set out the directions given to the jury in their entirety.
Mention has been made of the evidence of the appellant as to his production of the knife, how his finger was cut and how he used the knife. It will be remembered that it was his knife which he put in his pocket after the incident involving Mr Wilksch and that he produced it when he said Mr Mueller approached him.
The law of self-defence is governed by s 15 of the Act. It provides:
“15      (1)    It is a defence to a charge of an offence if -
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)    It is a partial defence to a charge of murder (reducing the offence to manslaughter) if -
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)    For the purposes of this section, a person acts for a defensive purpose if the person acts -
(a)in self-defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)    [Not applicable for present purposes]
(5)    If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”
The learned Trial Judge left self-defence to the jury. He provided directions in writing to them and also he gave directions as part of his summing up. His written directions were as follows:
“  WRITTEN DIRECTIONS
All written directions are a summary only and are intended to supplement the oral directions of law concerning murder and manslaughter.
A.      Murder
Murder is committed if the accused, by a conscious and voluntary act, killed Mr Mueller unlawfully and with an intention either to kill him or to cause him really serious bodily harm. There are four essential elements, each of which must be proved beyond reasonable doubt in order to prove the crime of murder.
The questions are:
A1    Are you satisfied that the accused killed Mr Mueller?
If yes, you would move to question no. A2.
If no, your verdicts would be not guilty of murder and not guilty of manslaughter.
A2    Are you satisfied that the fatal blow struck by the accused was a conscious and voluntary act?
If yes, you would move to question no. A3.
If no, your verdicts would be not guilty of murder and not guilty of manslaughter.
A3    Are you satisfied that, at the time the fatal blow was struck, the accused possessed an intention to kill Mr Mueller or to cause him really serious bodily harm?
If yes, you would move to question no. A4.
If no, your verdict would be not guilty of murder and you would turn to consider the alternative of manslaughter as set out in paragraph B.
A4    Are you satisfied that the accused’s conduct in killing Mr Mueller was unlawful (i.e. are you satisfied that the Crown has disproved self-defence)? There are two steps to consider:-
(i)Are you satisfied that the accused did not genuinely believe that striking the fatal blow to Mr Mueller was necessary and reasonable to defend himself?
If yes, on the basis that you would already have found elements A1, A2 and A3 were proven, your verdict would be guilty of murder. If no, your verdict would be not guilty of murder and you would move to consider the second step in (ii) to determine whether the accused has been proven guilty of the alternative offence of manslaughter.
(ii)    The second step:
Are you satisfied that, in the circumstances as the accused genuinely believed them to be, his conduct in striking the fatal blow was not reasonably proportionate to the threat the accused genuinely believed existed?
If yes, on the basis that you would already have found elements A1, A2 and A3 proven, your verdict would be guilty of manslaughter. If no, your verdict would be not guilty of manslaughter because the Crown would have failed to prove that the accused’s conduct was unlawful.”
The directions as to these matters commence early in the summing up and immediately after the directions as to the elements of the charge of murder. The learned Trial Judge commenced the directions on self-defence by instructing the jury as to the need for self-defence and self-defence which is excessive. He correctly directed the jury that there was no burden on the appellant to prove self-defence and that the prosecution must prove that the fatal blow was struck unlawfully, meaning that the prosecution must disprove any suggestion of self-defence. He went on:
“Let me give you the full definition of self-defence first following the statute. Do not be alarmed if it sounds a little complicated. It is. But I will go through it step by step and, as I said earlier, I will give you some written directions which will help you follow the steps of self-defence.
The killing of Mr Mueller by the accused would not be unlawful if it is a reasonable possibility that first; the accused genuinely believed that striking the fatal blow to the deceased was necessary and reasonable to defend himself, and secondly; that the striking of the fatal blow was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed existed.”
The learned Trial Judge then gave directions about the need to consider the circumstances in which the fatal blow was struck. He said:
“Now, let me take those steps in a little more detail. As I do, instead of repeating every time the accused genuinely believed, I will simply use the expression the accused believed. You will know that I mean the accused genuinely believed.
The first part of self-defence is what I refer to as the need for self-defence. It focuses on whether the accused believed that striking the fatal blow to the deceased was necessary and reasonable to defend himself. As you can see, at this first stage it is purely a question of the accused’s belief. The belief has two aspects. There must be a belief as to the necessity of striking the fatal blow, and, there must be a belief that the striking of the blow was reasonable to defend himself. In other words, the belief must go to both the necessity and the reasonableness of the conduct.
Now, ladies and gentlemen, in looking at the question of the need for self-defence, obviously you pay close attention to the circumstances in which the fatal blow was struck. Is it possible that the accused believed that a need to act in self-defence had arisen? Bear in mind that the law does not expect a person acting in self-defence to weigh precisely the exact amount of defensive conduct which is necessary and reasonable. The belief that the law requires may be no more than an instinctive reaction to a critical situation. You should have regard to the weapon used and to any alternatives that were open to the accused. Could he have adequately defended himself by a mere threat to use some degree of force, or by using less force than was used? Could he have safely avoided the attack or threatened attack by retreating? These, and all other relevant circumstances, must be weighed by you in assessing the genuineness of the accused’s belief in the necessity and the reasonableness of his actions.
I repeat, it is not for the accused to prove that he had such a belief. Once the accused has raised the issue, the burden rests upon the Crown to prove that he did not possess such a belief.”
He then gave directions as to how to approach the task. He said:
“In essence at this first step you would ask the following question: am I satisfied beyond reasonable doubt that the accused did not genuinely believe that striking the fatal blow to the deceased was necessary and reasonable to defend himself? If the answer to that question is ‘yes’, the question of self-defence would disappear. In that event the Crown would have proved that the conduct of the accused in striking the fatal blow was unlawful. If you had previously worked through the other elements and found those proven, the charge of murder would have been made out. That was the first question, am I satisfied beyond reasonable doubt that the accused did not genuinely believe that striking the fatal blow to the deceased was necessary and reasonable in defend (sic) himself?
What then, if your answer to that first question is ‘no, the Crown have not proved, we are not satisfied beyond reasonable doubt that the accused did not believe that his conduct was necessary and reasonable to defend himself’. Put another way, what happens if you think there is a reasonable possibility that the accused believed that striking a blow was necessary and reasonable to defend himself?
First, the accused would be not guilty of murder. However, that would not be the end of the matter. You would still be required to consider the second aspect of self-defence in order to determine whether the accused is guilty of the lesser offence of manslaughter. This involves that second stage that I mentioned, the question of excessive self-defence.
Ladies and gentlemen the law says if a need for self-defence exists but the force used is excessive, the crime is reduced from murder to manslaughter. What do I mean by ‘excessive’? The force used, that is the striking of the fatal blow, would be excessive if the striking of that blow was, in the circumstances as the accused believed them to be, not reasonably proportionate to the threat that the accused believed existed. This poses what lawyers call an objective question. Taking the circumstances as the accused believed they existed, you are asked to consider whether his conduct was, in those circumstances, reasonably proportionate to the threat that he believed existed.
You would appreciate that it is not surprising that the law imposes some limits on what is lawful in self-defence. To take a simple example, if a person was threatened with a kick on the shin it is plainly not reasonably proportionate to the threat to shoot or plunge a knife into the offender. So, you are required to look at all the circumstances, as the accused believed them to be, and to ask whether, although some measure of self-defence was warranted, he plainly overstepped the mark and his conduct in striking the fatal blow was not reasonably proportionate to the threat he perceived existed.
Again, I remind you that the burden remains on the Crown to prove that the conduct was not reasonably proportionate to the threat the accused believed existed.
It follows then that your second question is: am I satisfied, beyond reasonable doubt, that in the circumstances as the accused believed them to be, the accused’s conduct in striking the fatal blow was not reasonably proportionate to the threat that he believed existed? Remember, when we reach this second question, you would already have found the accused not guilty of murder. At the second question, if your answer is ‘yes’, your verdict will be guilty of manslaughter. If your answer to the second question is ‘no’, the Crown will have failed to prove that the killing was unlawful and your verdicts would be not guilty of murder and not guilty manslaughter.”
The learned Trial Judge then caused the written directions to be given to the jury. He gave them time to read them and then took them through the directions and explained how they should proceed through the various matters which had to be considered depending upon what conclusions they reached. There is no need to set out in these reasons what he said to the jury during the course of that exercise. The directions were unexceptional and accurate.
Then the learned Trial Judge gave directions to the jury relating to manslaughter by other than excessive self-defence and then gave them written directions as to that matter. I need not set out these directions as they are not in contention on the hearing of this appeal.
At the conclusion of this part of the summing up, counsel for the appellant raised some matters with the learned Trial Judge in consequence of which, upon the trial resuming, further directions were given. He said:
“Secondly, in the course of the issue of excessive self-defence, I mentioned to you that the question of whether the striking of the fatal blow was reasonably proportionate to the threat that the accused genuinely believed existed, the issue of whether it was reasonably proportionate is what we call in the law an objective question. That simply means that it is not a question of whether - at that stage of the process - it is not a question of whether the accused thought that what he did was reasonably proportionate. It is an objective question of fact for you to decide whether you are satisfied that it was not reasonably proportionate. That is a question of fact for you. But you make that decision, taking the circumstances as the accused believed them to be. You decide whether the conduct was reasonably proportionate, or more correctly, whether the Crown have proved that the conduct was not reasonably proportionate.”
The learned Trial Judge then reminded the jury of parts of the evidence of the various witnesses relevant to the issues which they had to decide. He reminded them of the evidence of the alcohol and cannabis consumption by the appellant and the effect of the expert evidence as to his possible blood alcohol level and degree of intoxication at the time of the stabbing and the possible effects upon the appellant, Mr Mueller and the various witnesses. He reminded the jury of the expert evidence that high levels of alcohol will substantially effect all functions of the brain in virtually every activity, including reflexes, vision, thinking processes, perception powers of observation and recollection, irrespective of a person’s drinking experience. He reminded them of the evidence that some people are less inhibitive when affected by alcohol and that mood changes are not unusual which can vary from depression and becoming irrational, argumentative and angry to becoming particularly happy and excessively friendly. He also reminded the jury of the evidence that THC, the active constituent of cannabis, has an additive effect to the effects of alcohol. He said that cannabis, in itself, causes relaxation and can also cause mental confusion with problems of short-term memory and that perception can be altered. He said that cannabis in many people may make them anxious. In others it may cause paranoia. He directed the jury to have these matters in mind when concerning the reliability of the various witnesses and the behaviour of Mr Mueller as well as the evidence of his mother that he tended to be a “loving” drunk and that cannabis relaxed him and made him friendly.
The following directions were then given with respect to intoxication of the appellant:
“With respect to the accused, if it is possible that he was affected by alcohol, I direct you that intoxication resulting from his voluntary drinking does not, of itself, provide a defence to the charge of murder or to the offence of manslaughter. In some extreme cases, a person may be so intoxicated as to act like an automaton. In those extreme cases, a person may not be held criminally responsible for his actions. However, there is no evidence to suggest that the accused was in such an extreme state. If he was affected by alcohol, he must answer when sober for what he did when affected by alcohol.
Having said the effects of alcohol do not provide the accused with a defence, nevertheless, if it is possible that he was affected, those effects upon him are relevant in other ways. As with other witnesses, the effects are relevant to the accused’s capacity to observe and recall events. They are also relevant in considering whether the Crown has proved that, at the time he struck the fatal blow, the accused possessed an intention to kill the deceased or to cause him really serious bodily harm. The inference as to the accused’s intentions which might be drawn from his actions if he was unaffected by alcohol may not be as readily drawn in the case of the accused when affected by alcohol. If, however, the accused did intend to kill or to cause really serious bodily harm, it matters not that his intention was affected by alcohol. The critical question is whether he formed one of those intentions, and the effects of alcohol are relevant in deciding that critical question.
If it is possible that the accused was affected by alcohol, that effect is also relevant to his perception of events when you are considering the issue of self-defence. As I have explained, the questions in self-defence involve issues of the accused’s belief as to the circumstances with which he was confronted and his belief as to whether striking the fatal blow was necessary and reasonable to defend himself. When you are considering the accused’s state of mind and belief in the context of self-defence, you should take into account the effects of alcohol upon him and upon his perception. People faced with situations of emergency or confrontations are more likely to make mistakes - and by ‘mistakes’ I mean honest mistakes - or to misinterpret situations when they are affected by alcohol.”

The learned Trial Judge then reminded the jury of the case for the prosecution that the appellant was the aggressor and of the evidence said to support that case and of the case for the appellant that he did not intend to kill, or cause grievous bodily harm to, Mr Mueller and that he acted lawfully in self-defence. He reminded the jury of evidence said to support the appellant’s case. He then returned to the issue of self-defence. He directed the jury as follows:
“I will finish with a few observations which, as I have said earlier, you are free to accept or reject as you please. If you disagree with them you should not hesitate to reject them.
You may think that when you turn to the events on the river bank, against the background of what happened earlier that evening, including the consumption of alcohol and cannabis, a useful starting point is to ask whether you are satisfied that the accused was the aggressor in the lead up to the critical incident and to ask whether you are satisfied that the deceased was tame or placid in response. Are you satisfied that the accused said in response to Mr Wilksch ‘I don’t want you, I want him’, meaning the deceased.
Ladies and gentlemen, it is a matter entirely for you. Your view about these questions may assist you in deciding what happened and in considering the questions or the issues of intent and self-defence in the critical altercation that followed.
Then ladies and gentlemen when you come to consider the circumstances of the stabbing, if you are satisfied that the accused initiated the altercation and used the knife, that is, if you are satisfied that he was the aggressor, that he started the fight and that he used the knife, in other words, if you reject his version that the deceased confronted him, you might think there was no occasion for self-defence with the knife. It is a matter for you, but if the accused started a fight and produced the knife at the outset, that is, if he produced the knife not in response to any aggression or threat by the deceased, but in anger as part of his aggressive behaviour or aggression towards the deceased, in those circumstances the accused cannot claim self-defence if the deceased tried to grab the knife. It is a matter entirely for you, but you might, I repeat, you might think there would be no occasion for the use of the knife in self-defence if, and only if, you are satisfied that the accused initiated the altercation and used the knife.
On the other hand, if it is reasonably possible that the deceased approached the accused swinging his shoulders, looking aggressive and took hold of the accused, then, of course, the struggle takes on a different complexion. On the accused’s version he responded to the deceased’s aggression. You would need to examine the deceased’s behaviour from the accused’s perspective and look at the accused’s response to the threat as he perceived that threat.
Ladies and gentlemen, throughout your consideration of the evidence please remember that while the accused’s state of mind when he produced the knife is obviously relevant, it is his state of mind when he struck the fatal blow that is of critical importance. Intention and self-defence questions must be determined as at the time the fatal blow was struck. By the time the fatal blow was struck, on the accused’s version, without any personal threat to him by the deceased, I repeat, this is according to the accused, the deceased had taken hold of the front of the accused’s clothing, at about the same time the accused produced the knife and opened the blade. The deceased grabbed the hand holding the knife. The blade closed cutting the accused’s finger. The accused, in his words, ‘freaked out’. He opened the blade again and, with a round-arm swing, the accused stabbed the deceased above the left buttock, cutting the band of the jeans and penetrating about 5-and-a-half cms into the deceased’s body. This all happened very quickly. They are the events, according to the accused, that happened immediately before he struck the fatal blow and before he struck the other blows to the chest.”
After the jury retired to consider its verdict, they asked for clarification of questions A4(i) and (ii) in the written directions. The Foreperson said that the jury could not really understand what the question was and that it was very confusing. He or she agreed with the learned Trial Judge that the difficulty involved double negatives.
The learned Trial Judge then gave further directions at some considerable length. It is unnecessary to set out those directions in full. It is sufficient to say that he took the jury through each of the matters raised in those questions and explained them clearly and precisely. Towards the end of his re-directions, the learned Trial Judge said:
“If you find that elements A1, A2 and A3 are proven, and you are now at element A4, if the Crown proves the accused did not have that belief, then your verdict would be guilty of murder because the Crown would have proved that his actions in stabbing the deceased were unlawful. That is the critical question. Has the Crown proved that his actions were unlawful? The answer to that is ‘yes’ if the Crown proves he did not genuinely believe that striking the fatal blow was necessary and reasonable to defend himself.
If your answer to that first question is ‘no’, if the result of your deliberations is this; the Crown has not proven that the accused did not have that belief, then your verdict would be not guilty of murder but, you would go on to consider the question of excessive self-defence, the second step, in order to determine whether the accused has been proven guilty of the alternative of manslaughter.”
At the end of his re-directions on the second question, he said that at this stage of their deliberations the jury were concerned with whether the striking of the fatal blow was excessive. He directed them that they must look at the circumstances as the accused believed them to be and said:
“Then you are asking: ‘In those circumstances, and in the light of that threat, has the Crown proved that the accused’s conduct in striking the fatal blow was not reasonably proportionate to that threat?’
Now, the question of whether it was reasonably proportionate is nothing to do with what the accused thought. It is to do with you deciding whether stabbing the deceased, striking the fatal blow, was reasonably proportionate. That is your decision. But you ask whether it is reasonably proportionate in the circumstances as the accused believed those circumstances were, and was it reasonably proportionate to the threat that the accused believed existed?
So there are two elements to it. One: his belief as to the circumstances and the nature of the threat. That is one step; that is the accused’s belief. But the next step: was the force used reasonably proportionate is your decision, as a matter of fact.”
In my view, the learned Trial Judge dealt with matters, which are not easy to explain, accurately and appropriately. His written directions were helpful to the jury. I do not regard them as confusing but when he was informed that the jury were having difficulty with the two matters I have mentioned, he removed that difficulty with clarity and precision.
I now turn to the many other complaints made by the appellant about these directions.
It is submitted that the learned Trial Judge erred in his direction as to the time when the appellant had the belief as to the necessity of striking the fatal blow to defend himself because that belief could have arisen at an earlier time. Of course the need for self-defence may arise at an earlier time but it must exist at the time of the killing. If any authority is needed for this obvious proposition, it is sufficient to refer to the discussion by Wells J in Morgan v Colman (1981) 27 SASR 334 at 336-337 and to Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 656-657. If it had ceased to exist before that time, the killing would not have been in self-defence. I reject this submission. The learned Trial Judge, in his careful and comprehensive directions, did remind the jury of the evidence of the events leading up to the stabbing, including the evidence of the appellant.
The next complaint is that the learned Trial Judge erred in directing the jury that they obviously needed to pay close attention to the circumstances in which the fatal blow was struck. It is submitted that the need to act in self-defence commenced to arise from the time Mr Mueller, Mr Wilksch and Mr Hein arrived at the river bank. It may be accepted that the circumstances giving rise to self-defence may occur over a period of time, as well as in an instant, but they must exist at the time of the killing. There was no misdirection by the learned Trial Judge regarding this matter. Indeed the evidence, including the appellant’s evidence, does not support the submission. There was no issue between any of the men, except that Mr Mueller wanted use of the appellant’s motor vehicle. On his own story, the appellant did not see any possible need for the knife until the incident involving Mr Wilksch, which occurred shortly before the stabbing. By that time, the three men had been at the camp site for over an hour.
The same complaint is made about each direction in the summing up when the expression “the time of striking the fatal blow” or a similar expression is used. I reject those submissions for the same reason.
The next complaint is that the learned Trial Judge erred when suggesting to the jury that they should first consider questions of fact. He went on to say:
“Until you know what the facts are, what facts have been established or proven to your satisfaction, you cannot address the legal questions. How you approach the matter is entirely for you, but it is just a suggestion that you might want to look at, at least the very essential facts, and make your decision as to what you find has been proven, and then apply those facts in answering the questions that I have set out for you.”
It is submitted that this direction is appropriate if it is limited to the facts which are common ground. Otherwise, there is a danger that decisions will be made on the basis of a choice between what the prosecution says and what the defence says. I am not sure that I understand that submission. In my view, the suggestion of the learned Trial Judge was a sensible and practical way for the jury to decide the issues in the case and was helpful and appropriate. It did not involve the jury choosing one case and rejecting another but simply deciding what facts they found to be acceptable.
It is submitted that there were no directions as to the application of the law to the evidence. I do not think there is any sound basis for that submission. Consideration of the summing up as a whole clearly indicates that the learned Trial Judge has directed as to the law, reminded the jury of the essential features of the evidence and made suggestions as to how they might approach their task. I do not think the jury were left without appropriate assistance. The issues to be considered on self-defence were clearly stated and the relevant evidence mentioned.
It is submitted that when the learned Trial Judge suggested to the jury that a useful starting point was to ask whether they were satisfied that the appellant was the aggressor in the lead up to the stabbing and the passage of the summing up which followed, he was presenting to the jury those matters as a way of resolving the ultimate issue and did not refer to the aggression of Mr Mueller as was perceived by the appellant. This submission overlooks the totality of the summing up. The learned Trial Judge did remind the jury of the appellant’s evidence and his case. At this stage of the summing up, he was simply dealing with the contention that, if the appellant was the aggressor in the sense being described, the jury might think that self-defence did not arise. It is not correct to say that the learned Trial Judge had not presented to the jury other options open on the facts such as they found them to be either proved or as establishing a reasonable possibility.
The appellant explained that the learned Trial Judge failed to direct the jury that an accused is entitled to forestall an attack by striking the first blow if he has the requisite belief in the need for self-defence. I do not think the circumstances of the present case required such a direction. The evidence of the appellant did not require such a direction and there was no rational inference which could be drawn from the evidence which required such a direction. The learned Trial Judge reminded the jury of the appellant’s evidence and of his case and gave all appropriate directions. It is unnecessary to refer to the cases cited in support of this proposition. I reject the submission that it was necessary for the learned Trial Judge to specifically direct the jury that the appellant may have produced the knife to forestall an attack.
It is submitted that it was the appellant’s case that he produced the knife in the first instance to forestall the attack and later when he was cut he used the knife to try and make himself safe. The complaint is that the learned Trial Judge did not make the distinction between the two occasions. I have set out in some detail the evidence of the appellant. It may be seen that two such occasions are not mentioned in the evidence and there is no basis in the evidence to draw such an inference. The appellant said that after he was grabbed he produced the knife and Mr Mueller grabbed the appellant’s hand in which the knife was held and he was cut.
The next complaint is that the learned Trial Judge erred in directing the jury that they should consider whether the appellant could have safely avoided the attack or threatened attack by retreating. It is submitted that the law does not impose a duty to retreat as a person is not obliged to leave his own home or abandon his property. The appellant would have had to abandon his swag and his car. What the learned Trial Judge said must be put in context which is that there must be a belief on the part of the appellant as to the necessity of striking the blow with the knife and that it was reasonable to defend himself in that way. I have earlier set out the full direction which was given to the jury. As has been seen, the learned Trial Judge gave careful directions about this matter and made it plain that retreat was but one matter to be considered along with all of the other relevant circumstances in assessing the genuineness of the belief of both the necessity and reasonableness of the appellant’s actions. Given the circumstances as related by the appellant, no further or other direction was required.
It is submitted that Mr Mueller was, in effect, a trespasser at the camp site. Presumably the point is that in consequence, s 15A(1)(a)(ii) or 2(a)(ii) of the Act has application. I reject that submission. The men were on public property. Mr Mueller had as much right to be present at the river bank as the appellant. He could not be regarded as a trespasser even after the appellant had told him to leave. He had made no attempt to interfere with the camp fire, the appellant’s swag, his car or any other property.
Lastly, there are criticisms of the passage of the summing up towards the end which I have repeated and which begins with the sentence, “I will finish with a few observations which, as I have said earlier, you are free to accept or reject as you please”.
It is submitted that the observations of the learned Trial Judge may have wrongly limited the jury’s consideration of self-defence to the incident when the stabbing occurred. The contention is that the jury might have approached the ultimate issue by determining who was the aggressor.
I reject that submission. The learned Trial Judge did not give directions as to how the jury must approach their task. He merely gave sensible suggestions to assist the jury and made it plain that they were free to reject what he said. I do not think that the jury could possibly have been deflected from approaching resolution of the issues appropriately by anything the learned Trial Judge said. He did not limit them in what they had to decide.
The observations were made in the context of the whole summing up, including his summary of the evidence and the respective cases for the prosecution and the defence.
I reject these grounds.
Ground 5
The appellant complains that the learned Trial Judge erred in his directions to the jury as to intoxication.
I have set out the relevant passage of the summing up.
The first complaint under this ground is that the evidence of intoxication was capable of having some bearing on the existence of the required state of mind, and the appreciation of relevant facts or reliability of a witness and consequently the learned Trial Judge was required to identify the relevant evidence, relate it to the issue and give directions as to the law about it. This submission, as to the obligations of a trial judge accords with the observations of Duggan J, with whom the other members of the Court agreed, in Bedi v The Queen (1993) 61 SASR 269 at 273. In my view, the directions of the learned Trial Judge were adequate. In the passage cited, he related the consumption of alcohol to both general and specific intent and to the appellant’s perception of events, including in the context of the state of mind and belief relevant to self-defence. I say general intent because the learned Trial Judge began his directions on this topic by mentioning that in extreme cases a person may be so intoxicated as to act like an automaton. In his written directions, he directed the jury that they must be satisfied that the fatal blow was a conscious and voluntary act.
It is submitted that there was a need to give the jury a clear direction as to the distinction between the formation of the “basic”, which I assume means “general”, intention to use the knife and of the specific intention to kill or cause grievous bodily harm and the importance of the appellant’s intoxication to that distinction. As has been seen, the learned Trial Judge gave such directions as to specific intent. There was no issue at the trial about general intent and I do not think that the learned Trial Judge was obliged to give any other directions on that matter.
It is submitted that the learned Trial Judge was obliged to direct the jury on the issue of specific intent at the time of the stabbing and as to the amount of alcohol and cannabis the appellant had consumed, the circumstances in which he found himself and the nature of the physical contact between him and Mr Mueller. In my view, there is no substance in this complaint. As has been seen, the learned Trial Judge reminded the jury of the evidence as to the alcohol and cannabis consumed by the appellant and the expert evidence as to the possible degree of intoxication and effects.
The next complaint under this ground is that the learned Trial Judge did not sufficiently crystallize for the jury the importance of intoxication in relation to the possibility of a manslaughter verdict. I also reject this submission. Earlier in the summing up, the learned Trial Judge made it clear in both the written and oral directions that if the jury were not satisfied beyond reasonable doubt as to specific intent for murder, they must consider manslaughter and the directions given concerning intoxication were adequate for all purposes when considered in the context of the whole summing up.
This ground fails.
Ground 7
It is submitted that the learned Trial Judge erred in his direction to the jury as to the standard of proof in that he misdirected them regarding reasonable doubt. It was held in R v Pahuja (1988) 49 SASR 191 that it is an error of law to invite a jury to subject a doubt which they entertain to a process of analysis or evaluation in order to determine if it is reasonable: see King CJ at 195.

In the present case, the learned Trial Judge directed the jury in the conventional manner as to the burden and degree of proof. He went on to say:
“If, at the end of the case, you are left with a doubt about the guilt of the accused, that appears reasonable to you, then you must give the accused the benefit of that doubt and find him not guilty. To put it another way, if there is a reasonable possibility that the accused is not guilty, the Crown will have failed to prove its case beyond reasonable doubt and you will acquit the accused.”
The reference, in that direction, to a doubt that appears reasonable to the jury is similar to the impugned re-direction in Pahuja: see 193. In that case the jury were directed that if they were left with any doubt, it was for them to decide whether that was a reasonable doubt.
Whilst it may be said that it would have been preferable had the learned Trial Judge not used the expression “that appears reasonable to you” because it tends, but in a limited way, in my view, to invite analysis of the doubt entertained, the direction did not deflect the jury from the proper application of the burden and degree of proof. The direction was not an attempt to explain or define reasonable doubt. Consideration of the summing up in its entirety reveals that clear directions were given as to the burden and degree of proof and the impugned phrase did not “diminish the jury’s sense of their obligation not to convict upon supposed proofs about which they, as reasonable persons, feel a doubt”: R v Wilson (1986) 42 SASR 203 at 206, see also R v ALJ (2000) 211 LSJS 449 per Lander J at 459. I do not understand Mrs Shaw to be contending that this error, if it be an error, vitiated the verdict and it could not have that consequence.
It is submitted that the directions of the learned Trial Judge tended to equate “reasonable doubt” with “reasonable possibility”. It may be seen from the passage of the summing up just mentioned that the learned Trial Judge directed the jury that if there was a reasonable possibility that the appellant was not guilty, the prosecution would not have proved the case beyond reasonable doubt. What he said did not have the tendency to equate the two expressions in the sense that reasonable possibility is the same as reasonable doubt. The learned Trial Judge made it clear that if there was a reasonable possibility that the appellant was not guilty, then the burden of proof on the prosecution would not have been discharged.
Mrs Shaw cited the observations of Olsson J and Duggan J in Rusovan & Russo v The Queen (1994) 62 SASR 86 at 105-106 and 109-110 respectively. I need not repeat the observations of their Honours in that case. They were concerned with directions which could have “diverted the jury’s attention away from the real question in the case, namely whether on each count the circumstances were such as to be inconsistent with any reasonable hypothesis other than guilt”: per Duggan J at 110. I do not think the observations of their Honours are pertinent to the present case. I reject the submission that the directions of the learned Trial Judge tended to equate “reasonable doubt” with “reasonable possibility”. Indeed, the contrary is made plain by the passage I have cited.
It is also submitted that the learned Trial Judge fell into error in the same respect when he gave further directions to the jury in response to a request from them after they had retired. I have mentioned these re-directions which were given to clarify the written directions set out in questions A4(i) and (ii). In the course of doing so, he said:
“Let me start by putting the law of self-defence and those two questions around the other way. You will see the questions are phrased ‘Are you satisfied that the Crown has proved certain things?’ Let me turn it around the other way and say this to you; the killing of Mr Mueller by the accused would not be unlawful if it is a reasonable possibility, (one), that the accused genuinely believed that striking the fatal blow to the deceased was necessary and reasonable to defend himself.”
His elaboration of that direction need not be set out, except it is important to mention that once again the learned Trial Judge stressed that the onus of disproving self-defence rested upon the prosecution.
He then gave further directions concerning A4(ii). For present purposes, it is unnecessary to set out that direction because the complaint about the first re‑direction does not arise with respect to the second re-direction.
The complaint is that the learned Trial Judge directed the jury in terms of reasonable possibility in that the jury was asked to focus upon whether the accused had established a reasonable possibility. In my view, this submission ignores what the learned Trial Judge did say to the jury. It will be seen that the re-direction was given in the context of whether the prosecution had discharged the burden of proof. The re-direction could not be interpreted as reversing, or in some other way, affecting the onus of proof. In R v Holman (1997) 1 Qd R 373, the Queensland Court of Appeal had to consider a direction which included at 376:
“If you think it is reasonably possible that what the accused said is correct, you would give him the benefit of any doubt. ..... If, on the other hand, you were not persuaded that the evidence of the accused is reasonably possible, you are not persuaded that it is a reasonably possible explanation for the events that led to the stabbing ...... the only question for you will be what the intention of the accused was.”
Later, the direction included “..... they are the two factual situations that you will have to solve ....” The Court found this direction to be a misdirection because the jury may not have understood that the onus of exclusion of self-defence rested upon the prosecution.
No such problem arises in the present case. The use of “reasonable possibility” in the context of the summing up could not have deflected the jury from the directions that the prosecution carried the onus of proof beyond reasonable doubt.
The next complaint is that the request by the jury for further direction meant that they had not grasped the self-defence direction and consequently it was necessary when re-directing them to give directions as to the factual circumstances relevant to self-defence at that stage. I do not agree. The learned Trial Judge had given careful directions relating the evidence to the issues which the jury had to decide. At this stage of the trial, he was simply complying with a request of the jury and it was not necessary or even desirable, in my view, that he cover that ground again.
I reject this ground.
Ground 8
By ground 8 the appellant contends that the trial miscarried because of a submission by the prosecution to the jury that the prosecution witnesses, Mr Hein and Mr Wilksch, had no reason to lie. The learned Trial Judge reminded the jury of that submission of the prosecution generally to that effect at the stage of the summing up when he began to mention features of the addresses of counsel. It is unnecessary to set out what he said to the jury.
As I understand the submission, the submission of the prosecution, as repeated by the learned Trial Judge, is contrary to the principle discussed in Palmer v The Queen (1998) 193 CLR 1. In that case, the accused was charged with sexual offences, was asked by the prosecutor if he was at “an absolute loss to think why [the complainant] should make up the allegations” and other questions along that line. Brennan CJ, Gaudron and Gummow JJ said, at 9:
“With respect, a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.”
This case does not establish the proposition that if the prosecution suggests a witness has no motive to tell a lie, that is an error in law. In the present case, the appellant was not asked if he could furnish a motive for Mr Wilksch and Mr Hein to lie. The prosecution was simply making a submission to the jury that they were independent in that they did not have a relevant relationship with Mr Mueller which is a different situation than that discussed in Palmer. The standard of proof was not diminished. The prosecutor was simply commenting upon the value of the evidence. He was putting to the jury a matter for their consideration. I expect that comments of this nature are made frequently about witnesses and I do not think the observations in Palmer are of application in the present case. In the context of reminding the jury of the features of the addresses of counsel, the learned Trial Judge repeated the submission of the prosecutor. He did not adopt the submission and there was no error in law.
This ground also fails.
Ground 9
The appellant complains that the learned Trial Judge erred in failing to adequately warn the jury against acting upon the evidence of Mr Wilksch and, in particular, his evidence that the appellant said, “I don’t want you, I want him” and more particularly if that evidence was to be relied upon as evidence of motive.
When giving directions to the jury about alcohol, the learned Trial Judge reminded them of the evidence that both Mr Hein and Mr Wilksch had consumed alcohol, that Mr Wilksch had consumed far more alcohol than Mr Hein and of the amount of alcohol which he had consumed. He went on to say:
“He had started off with half a bottle of whisky and he had been consuming alcohol over a long period and he had consumed a large quantity. He admitted he was drunk. You might have no difficulty in concluding that Mr Wilksch was very intoxicated. You might also conclude that his intoxication provides a ready explanation for him backing his utility into the river.”
The learned Trial Judge then immediately proceeded to give directions about the relevance of the effects of alcohol and cannabis with respect to witnesses. I have earlier summarised those directions. Later in the summing up. The learned Trial Judge reminded the jury of the evidence of Mr Wilksch and went on to say:
“Ladies and gentlemen, the Crown placed considerable emphasis on the accused’s response to Mr Wilksch as indicating that the accused didn’t want to fight Mr Wilksch but he wanted to fight the deceased, Mr Mueller. When you are considering whether you are prepared to rely upon the evidence of Mr Wilksch as to the accused’s response to the offer to fight, please bear in mind what I have said about the effects of alcohol upon Mr Wilksch.”
A little later he said:
“So, ladies and gentlemen, you will bear in mind those differing versions and I give you a caution to exercise great care and to scrutinise Mr Wilksch’s evidence very carefully and to consider it alongside all of the other evidence before you act upon it in view of his very sketchy memory and the effects of alcohol. However, I am not giving you an indication as to whether you should act upon it or not. That is a matter entirely for you. If, after you give it very careful scrutiny and compare it and consider it in the context of other evidence, you are satisfied that what Mr Wilksch told you is both truthful and accurate, then you should rely upon it.”
Furthermore, he reminded the jury of the evidence of Mr Hein which differed from that of Mr Wilksch in that Mr Hein said that he was not too sure if the appellant said that he did not want to fight anyone. The appellant might have said that he was at the river bank to sleep and it was for the three men to sort out the problem with the utility.
The learned Trial Judge drew attention to the issues which arose regarding this evidence and to the reasons for approaching the evidence of Mr Wilksch with caution.
This ground was not really argued but was not abandoned. I can see no basis for complaint. It was not suggested what additional directions the learned Trial Judge should have given. In my view, his directions were adequate, appropriate and accurate. This ground also fails.
The issues at the trial were typical issues for a jury. Obviously the jury accepted the prosecution case as proved beyond reasonable doubt and rejected the evidence and explanations of the appellant. There is no reason to apprehend a miscarriage of justice.
I would dismiss the appeal.
WILLIAMS J This is an appeal against conviction. I have reached a conclusion different from Mullighan J with respect to appeal ground no 3.7; as to the other grounds of appeal I adopt His Honour’s reasons.
The appellant has been convicted on jury verdict of the murder of Shane Mueller at Swan Reach on 1 April 2000. The grounds of appeal include a complaint that the trial judge did not direct the jury with respect to a defence arising under s 15A of the Criminal Law Consolidation Act 1993. The jury were instructed upon the topic of self-defence (s 15) but it does not appear that the judge or counsel turned their minds to the fact that the appellant may have acted to protect his motor car from unlawful appropriation by the deceased.
The grounds of appeal include the following:
“3.7The trial Judge failed to direct the jury as to the relevance of the fact that the deceased whilst intoxicated was threatening to unlawfully take possession of the accused’s vehicle.”
The appellant’s argument on this point concentrated upon the partial defence provided by s 15A(2).
On the night of 31 March/1 April 2000 the appellant and his companion Williams were camping in a clearing alongside the Murray River below the cliffs on which the Swan Reach Hotel is situated. They had been travelling in the appellant’s Toyota Corona sedan which was parked alongside the campsite near the ferry crossing. Earlier they had crossed the river from Mount Pleasant and had met the deceased on the ferry. The deceased accompanied the appellant and Williams to their campsite where they left the Toyota and all then walked the short distance to the hotel where they arrived shortly before midnight. Eventually when the Hotel was closing (apparently at about 1.00am) the appellant and Williams returned together to their campsite where they lit a fire and settled down for the night on their swags (on the ground).
About 20 minutes later (according to the appellant) the deceased and two companions Damien Wilksch and Daniel Hein arrived at the campsite in a Toyota Hilux driven by Wilksch. These three had also been at the Hotel. Wilksch claimed that he drove down with his two companions “for a sticky beak”, knowing that there were two campers by the river.
As he made a three point turn in the clearing, alongside the camp, Wilksch reversed his vehicle into the river where it remained firmly stuck partly in the water at a sharp angle on the river bank with its rear wheels in the river. Wilksch Hein and the deceased were unable to move the bogged vehicle.
For reasons which are far from clear the appellant became aggressive toward the deceased and asked him repeatedly to leave the area. There was evidence that the appellant offered to fight the deceased if he were not prepared to leave. The appellant attributes this friction to the fact that the deceased persistently asked the appellant for the use of his car and eventually threatened to take it without permission.
The appellant’s evidence was:
QWhat was Mr Mueller’s demeanour like, was he happy, angry. What was his demeanour.
AI wouldn’t say ‘happy’. He was persistent in asking to go for a drive.
QThen what happened.
AI think there was a bit of a disagreement between Shane and I, words were getting a bit louder.
QWhen you say ‘words were getting louder’, what sort of words.
AJust why I wouldn’t let him go for a drive, or let him use my car.
QWas any swearing used-swear words used at that stage.
AI dare say there would have been, yes.
QAre you able now to recall what they were.
AAlong the lines of the F word and the rest of it.
QWho was using that type of language.
ABoth of us.
QThen what happened.
ADamien had stepped in and taken his shirt off and said ‘Do you want to fight?’ - something like that.
QDid you say anything about that.
AI think I took a step back and said ‘No, I don’t want to have a fight’.
QHad you indicated to anyone that you wanted to fight.
ANo.”
The appellant then gave evidence of stepping on the fire and burning himself and at 407-408:
“Q Then what occurred.
AA few minutes later, Shane may have stepped a few metres away to go to the toilet. I can’t recall, but Shane started to ask if he could borrow my car.
QThen what occurred.
AI said ‘No, I don’t let anyone drive my car, especially someone I don’t know’.
QThen what occurred.
AHe started getting a little bit pissed off that I wouldn’t lend it to him.
QThen what occurred.
AI think Paul went and said to us ‘Just chill out’ to both of us.
QThen what occurred.
AShane said something like ‘Oh well, I’ll just take it then’.
QDuring this, where was Mr Hein, do you know.
ANo, I’m not sure.
QThen what occurred.
AWhen he said ‘I’ll just take it’, I walked away, down a bit further down the track. I had intended on going to the toilet.
QWhat occurred.
AAs I was walking away, Shane was yelling something about the car and I was yelling stuff back like ‘Fuck off’.
QCan you recall what he was saying about the car.
AJust that he would take it without my permission.
QI think you used words ‘Fuck off’ to him.
AYes
QThen what happened.
AWhen I got into where I planned to go the toilet, I heard what I thought was Shane getting closer, walking towards me. I turned around and he was walking towards me.
QWhat happened then.
AHe grabbed me, or thrown a punch, and he was grabbing me around the shirt (INDICATES).
QWhat happened then.
AWe wrestled and I had a pocket knife in my pocket.”
And in cross-examination at 440-441:
QWhere were the car keys.
AI think they were in the ignition.
QSo he has told you he is going to take your car and your response to that is to walk away from the car and the camp.
AI was going to go to the toilet anyway, but, yes, the response was to walk away and go to the toilet, yes.
QYou didn’t think to take the keys out of the ignition.
ANo.
QJust after a man has said he’s going to take your car anyway -
AI wasn’t thinking about where the keys were at the time. I didn’t know where the keys were.
Q.You’ve got a man whose saying he wants your car, you are telling him he can’t have it, he says he’s going to take it anyway, and you walk away from the car; am I correct so far.
AYes.
QYou say you hadn’t turned your mind to where the keys might be.
ANo, I wasn’t thinking about where the keys were.
QDid you think that, given you have got this man who says he is going to take your car, over your objection, you might hang around your car for a little while.
AI didn’t think five metres was very far away.
QHave you made up this story about Mr Mueller saying he was going to take your car without your permission.
ANo I have not.
QIt gives some explanation as to why you might have attacked him with a knife a few minutes later.
A.Was that a question then?
QI’m suggesting that you made up that story.
ANo I haven’t.
QAbout Mr Mueller wanting to use your car.
ANo I did not make up any story.
QI suggest you’ve done so in order to provide an explanation for attacking him with a knife.
AI did not attack him with a knife.”
And at 437:
QAnd Mr Mueller’s behaviour, as we get closer towards the time when you end up in the scuffle with him, is he getting aggressive.
AYes - I’m not sure if it’s aggressive or just pissed off that I wouldn’t lend him my car, but, yes, I suppose both mean pretty much the same thing.
QSo he wants your car, but you won’t let him use it.
AYes.
QAre you saying he just wouldn’t take no for an answer, he just kept at you.
AYes.
QDid you make your point very clear back to him, that you weren’t giving him the car.
AYes, I did, within the first ten minutes of standing around the camp fire.”
And at 452:
QYou were happy for Mr Wilksch and Mr Hein to stay, you wanted Shane to go.
AYes.
QThat’s because he was asking to use your car.
AIt was because he kept asking to use my car after I told him ‘no’, once, twice, maybe three times.
QBecause he asked three times to use your car you wanted him to go.
AOnly because he wouldn’t stop asking that’s why I wanted him to go. He kept insisting.”
(Emphasis added to quotes).

It is not in dispute that thereafter the appellant and the deceased physically engaged each other in a “scuffle” during which the appellant produced a knife and stabbed the deceased a number of times. It is possible upon the evidence that the appellant did not intend to kill Mueller but intended to cause him really serious bodily harm so as to provide the necessary mental element to support the murder charge. The appellant’s evidence upon this topic is as follows:
At 415:
“Q...When he came towards you, can you say whether he was running or walking.
AHe wasn’t running, but it was a brisk walk.
QWas there something about his demeanour which indicated whether he was happy, angry, upset.
AHe was sort of swinging his shoulders a little bit.
QHe came over to where you were standing, is that right.
AYes.
QAnd that was some distance away from the camp fire.
AYes.
QIn what direction, can you say.
AIt was away from the punt.
QSo in a northerly direction along the bank.
AYes.
QIf you don’t know, say ‘I don’t know’.
ANo.
QWhy did you swing your arm with the knife.
AI was scared that he was going to use the knife on me.
HIS HONOUR
QYou said you did not intend to kill Mr Mueller or cause him serious harm. When you swung the knife, you said you were scared he was going to use it on you, correct.
AYes.
QWhen you swung the knife, did you intend to strike him with the knife.
AYes.
QDid you have in mind striking him anywhere in particular.
ANo.
And in cross-examination at 417:
QAnd you knew that by swinging the knife at him you were likely to strike him with the knife.
AYes.
QAnd that indeed was what you intended to do.
ATo strike him with the knife, yes.
QAnd you must have realised that by doing that you were going to cause him really serious injury.
ASerious injury - not sure.
QYou got him in the chest, didn’t you.
AYes.
QWhat did you think you were going to do by plunging a knife into his chest.
AI didn’t realise I got him in the chest.”
The appellant, the deceased Hein and Wilksch were all to some degree affected by alcohol at the time of the stabbing to the point where their respective perception of events may have been impaired.
The post mortem examination of the deceased showed he had a blood alcohol recording of 0.192 per cent at the time of death; the deceased also ingested a “moderate level” of THC (being the active constituent of cannabis). There was evidence that the deceased was drunk and starting to slur his words.
The appellant gave evidence that at the time of the stabbing he felt affected by alcohol to the point where he did not feel able to drive. From 7pm until the time of the stabbing he gave evidence of his consumption of an assortment of drinks - 3 stubbies of beer, about 4 schooners of beer and 3 glasses of spirits. He gave evidence that he was affected to the point where his walking was unsteady. The effects of alcohol were compounded by the effects of two pipes of cannabis. (Before leaving home at about 5.30pm to go to the river he also consumed about 4 cans of beer according to his mother and sister).
Hein had consumed about 8 drinks during the evening. Wilksch had consumed far more than Hein and appeared to be very drunk. It would not be difficult to conclude that his unskilful manoeuvre of the Toyota Hilux into the river was attributable to inebriation.
The appellant and the deceased appear to have been on good terms when they crossed the river together, drank together at the campsite, walked together to the Hotel and socialised there together. After the return of the deceased in the Toyota the appellant’s mood seems to have changed significantly. For no apparent reason (apart from a difference as to the use of the appellant’s car) the appellant demanded that the deceased leave the area. Unless one attributes this conduct simply to the effects of alcohol and cannabis it is difficult not to reach the conclusion that there is something missing from the evidence of Wilksch and Hein who knew nothing of the deceased’s demands for the use of the car. However, they were both aware that the appellant was upset with the deceased. The appellant’s evidence as to the deceased’s demands stands alone. The appellant links his own conduct with the deceased’s demands; according to the appellant the deceased refused “to take no for an answer”, said that he would take the car anyway and then attacked the appellant who (according to the other witnesses) had previously offered to fight the deceased if he would not leave the area.
In my opinion upon this evidence a partial defence was raised under s 15A(2) upon which the jury ought to have been directed. There was evidence that the issue between the appellant and Mueller immediately arose out of the appellant’s refusal to permit Mueller to use the vehicle and Mueller’s consequent challenge to this decision. There was also evidence that in stabbing Mueller, the appellant’s intentions fell short of an intention to cause death.
The test for deciding whether a verdict is unsafe or unsatisfactory was reviewed in Gipp v R (1998) 194 CLR 106 at p 122-126 per McHugh and Hayne JJ. At p 123 they said:
“The test laid down in M v The Queen was formulated against the background of the adversarial system of justice, a system heavily dependent on the parties to identify the issues and the evidence relevant to those issues. It is impossible to think that the majority in M v The Queen intended to impose a duty on courts of criminal appeal to examine often innumerable appeal books, often containing hundreds and sometimes thousands of pages of evidence and exhibits, and evaluate evidence which the parties have not thought fit to draw to the court’s attention. Still less is there any reason to suppose that the majority in M v The Queen intended to impose a duty to examine the transcript looking for issues arising from the “circumstances of the case” which have not been raised by the parties.”
And at p 124:
“It is true that criminal proceedings are not wholly adversarial in nature. One important exception to the adversarial nature of criminal proceedings is that a trial judge has a duty to direct the jury on any matter that could result in the acquittal of the accused even though the accused deliberately refuses to argue the point.” Pemble v The Queen (1971) 124 CLR 107.
And at pp 124-125:
“Nevertheless, criminal proceedings could not retain their adversarial nature if it were the duty of trial judges and courts of criminal appeal to take every step that they thought was appropriate to protect the accused’s interests at the trial or on appeal. It is one thing to say that, when all the evidence is in, a trial judge has a duty to direct the jury that they must consider a matter that the accused has not raised in his or her defence. It is not surprising that, in furtherance of the requirement that there should be a trial according to law, appellate courts modified the adversary system to impose this duty on trial judges. The trial judge has heard the evidence. It therefore imposes no great burden on the judge to require him or her to direct the jury on all “defences” that are legally open on the evidence.
But it is quite a different matter to say that an appellate court has a duty to examine the whole record and determine whether that record contains error requiring the quashing of the accused’s conviction notwithstanding that the appellant has not relied on an issue or on evidence. Courts of criminal appeal would no longer be courts of appeal; they would be tribunals for the judicial review of criminal convictions. Their role would cease to be that of an appellate court deciding issues selected by the Crown and the accused. They would necessarily become active parties in the proceedings; the members of an appellate court would become judicial ombudsmen whose function was to investigate the records of criminal trials to determine whether convictions should be set aside because of some factual or legal error on the part of the trial judge whether or not the appellant had raised the error.”
In Doggett v R [2001] HCA 46 Gleeson CJ (in pars 1-3) likewise discussed the adversarial nature of the trial process.
Although the requirements for a summing up to a jury will be influenced by the issues and the manner of their presentation by counsel, there are certain fundamental requirements of the law which go to the root of the proceedings. If these are not observed then there will not have been a proper trial. It is of the essence of a proper trial that if there is evidence of a defence then irrespective of whether or not counsel has relied upon it the defence must be put to the jury (R v Hopper [1915] 2 KB 431). As McHugh J pointed out in Doggett at par 95:
“Except where the due administration of justice clearly demands that juries be directed as to particular matters, the contents of summings up are best left to the discretion of those who preside at criminal trials. They are in the best position to determine what needs to be said to the particular jury.”
It is my opinion that in accordance with these principles a direction was here required as to the defence raised under s 15A(2).
Section 15A of the Criminal Law Consolidation Act includes the following:
“(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if-
(a)    the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable-
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
...
(b)    the defendant did not intend to cause death; but
(c)    the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
...
(4)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”
The inference is open that the appellant was defending his refusal to allow his car being used; the inference is that the deceased was unlawfully intimidating the appellant and that the appellant’s response was therefore in support of his decision to deny the deceased lawful access to the vehicle. The appellant’s “explanation” was treated by the cross-examiner as raising a link between the stabbing and the deceased’s refusal “to take no for an answer” with respect to the vehicle. There is evidence from which it could be inferred that the appellant’s actions were not intended to cause death.
It seems to me that there was sufficient circumstantial evidence that the issue should have been placed before the jury (cf R v Fahey (1978) 19 SASR 577). I consider that the point had been reached where the evidence disclosed the possibility that the fatal act was done under circumstances attracting the operation of s 15A(2) so that the burden fell upon the prosecution to disprove the fact. The jury ought to have been instructed accordingly whether or not the plea was actually raised by the accused (cf Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 657). There was no evidentiary burden upon the accused. In order to raise the defence it was only necessary that the facts disclose that it was reasonably possible that the accused was acting with the genuine belief and lack of intention to cause death as described in the subsection. In this respect the possible effect of alcohol and cannabis upon the appellant’s appreciation of the situation will be relevant. What the accused may say will be brought to account but when the point is “raised” under s (4) the critical question is whether the prosecution has discharged the onus of showing that there was not at least a reasonable possibility that the accused genuinely held a belief and lacked the intention to cause death as is described in s 15A(2).
In my view the jury is entitled to look beyond the events as the deceased grabbed or punched at the appellant leading then to the drawing of the knife and the striking of the fatal blow. The real case which deserved to be put to the jury involved bringing together the whole of the circumstances of the evening. The critical matters included the presence of the three intruders, the building up of tension between the appellant and the deceased arising from a refusal to “take no for an answer” and the reason why the appellant then placed his knife in his pants. It would seem that the deceased was endeavouring to coerce the appellant into changing his mind with respect to the use of his property and the jury should have been invited to consider the possible relationship between this fact and the ensuing struggle.
I therefore conclude that, although imperfectly articulated, a “defence” under s 15A(2) was legally open on the evidence which ought to have been put to the jury for its consideration. In an essential respect there has not been a trial according to law.
In my opinion the appeal against conviction should be allowed and a new trial should be ordered.
BLEBY J I agree that the appeal should be dismissed for the reasons given by Mullighan J. As to whether self‑defence under s 15A of the Criminal Law Consolidation Act 1935 should have been left to the jury, I merely add that, whatever may have transpired between the appellant and the deceased about the latter’s use of the appellant’s car, at the time of the physical engagement between the two, the appellant made clear in his own evidence what it was that drove him to use the knife. It was nothing to do with the proposal or even threat, if there was one, of the deceased to appropriate or interfere with his car. There was no evidence from any other witness to suggest that protection of the appellant’s property played any part in dictating or influencing the appellant’s conduct which resulted in the death of the victim.
There was no basis to require or to justify leaving to the jury any question of self‑defence under s 15A.

[2002] SASC 9

18 January 2002