R v Dally

[2000] NSWCCA 162

Reported Decision: [2000] 115 A Crim R 582

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Dally [2000] NSWCCA 162
FILE NUMBER(S):	CCA 60659 of 1998
HEARING DATE(S):	3 February 2000
JUDGMENT DATE:	11 May 2000
PARTIES :	Regina v Craig Brookes Dally
JUDGMENT OF:	Sully J at 1; Carruthers AJ at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70043/97
LOWER COURT JUDICIAL OFFICER :	Sperling J

COUNSEL :	M A Ramage QC (Appellant) D C Frearson (Crown)
SOLICITORS:	T A Murphy (Appellant) S E O'Connor (Crown)
CATCHWORDS:	Criminal law - jury agremeent as to manslaughter does not require basis or variety of manslaughter to be agreed - sentence not excessive .
CASES CITED:	Regina v Brown (1984) 79 CAR 115; Regina v Giannetto (1997) 1 Cr App R 1; Regina v Phillips (1988) 86 Cr App R 18; Thatcher v Regina (1987) 39 DLR (4th) 275; Regina v Gaughan (1990) Crim LR 880; Regina v Clarke & Johnstone (1986) VR 643; KBT v Regina (1997) 191 CLR 417; Regina v Beach (1994) 75 A Crim R 447; Regina v Leivers & Ballinger (1998) 101 A Crim R 185; Regina v Bessant (Unreported NSWSC 20 May 1998); Regina v Isaacs (1997) 41 NSWLR 374; Regina v Cramp (1999) NSWCCA 324.
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted; appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60659/1998

SULLY J
CARRUTHERS AJ
SMART AJ

Thursday 11 May 2000

REGINA v CRAIG BROOKES DALLY

JUDGMENT 1   SULLY J: I agree with Smart AJ. 2   CARRUTHERS AJ: I agree with Smart AJ. 3   SMART AJ: Craig Brookes Dally appeals against his conviction of manslaughter and seeks leave to appeal against the severity of his sentence comprising a minimum term of 5 years 3 months and 13 days penal servitude and an additional term of 2 years. The judge thought that a sentence comprising a minimum term of 6 years and an additional term of 2 years was appropriate. The sentence imposed reflected that the applicant had spent a total period of 8 months 2 weeks and 4 days in custody prior to his trial. The jury had found the appellant not guilty of murder. 4   The case was left to the jury on the basis that it was open to them to find the appellant guilty of murder or manslaughter or not guilty of either. Self defence was raised. The jury were told that it could bring in a verdict of manslaughter if the Crown did not negative provocation or if the Crown failed to prove the specific intent necessary for the crime of murder, but was satisfied that a deliberate act of the appellant had caused the death of the deceased and that act was unlawful and dangerous. 5   As at 6 January 1997, the date on which the appellant killed Raymond Marden, the two men shared a flat at 1/590 Elizabeth Street, Redfern. The deceased was the tenant and the appellant paid him for accommodation and food. The appellant was aged 47, temporarily unemployed and divorced. He was five feet seven inches tall and of slight build. The deceased was taller, thick set and of a much heavier build. He had ceased work as a chef because of his diabetes and was in receipt of an invalid pension. Both men had time on their hands. Both frequented the Woolpack Hotel. 6   The deceased had a lot to drink on 6 January 1997. He had a blood alcohol level at the time of his death of 0.265 grams per 100mm of blood. The appellant also had been drinking, but not nearly so much. During the course of the day the appellant and the deceased had an argument and a disagreement. The deceased told the appellant that he would not continue to provide food for the appellant, who protested that he had paid in advance. 7   The appellant left the Woolpack Hotel about 7 pm and returned to the flat, showered and washed up some dishes. The deceased arrived at the flat about 7.30 pm. In the appellant’s recorded interview, he said that when the deceased arrived home he began shouting “Get out of my house”. The appellant declined unless the deceased refunded the rent paid. The appellant said that he told the deceased to leave him alone. The argument continued with some robust exchanges on the part of both men. 8   During the interview, the appellant stated that he went into the kitchen and got “quite a long carving knife.” The deceased kept haranguing and abusing him, and he kept telling the deceased to leave him alone. The deceased came over and started pushing and pulling at the appellant who stabbed the deceased once. The deceased collapsed. The appellant did not see where the knife entered the body. There was a wound to the left front part of the chest above the level of the nipple. The wound passed through the coronary sac, aorta and lung. Death would have followed in a couple of minutes. The appellant said that when he realised that the deceased was in trouble, he (the appellant) telephoned 000 for the ambulance and the police. The tape records the appellant stating that he had put a 12 inch carving knife through the deceased’s heart and killed him. 9   The appellant agreed during his recorded interview with the police that when the police entered the flat he said to the police “I did it. I did it.” He was then cautioned. The appellant agreed that he further said to the police at the scene “Yeah I killed him. I stabbed him. I killed him. He’s dead.” He stated “I’d like to know what I’ve been charged with. Probably murder, is it? Is that right?” It is not clear whether the appellant was confirming what he said in the dock area of the police station or was speaking directly to the interviewing detectives. At a later stage of the interview he said “I put a knife in his guts. I’m sorry I did it … that’s all I can say.” 10   During the interview the appellant stated that the deceased when drunk was the most obnoxious person whom you could meet. Towards the end of the interview the appellant said “I have nothing more to say. He’s walked in with a big bucket mouth as usual and I put a knife in his guts. That’s all.” 11   The appellant stated that he was angry with the deceased. The appellant stated that when he went to the kitchen and grabbed the carving knife his intentions were “Scare him. Just piss off, go away and leave me alone.” The appellant stated that he was never in fear of his own personal safety. 12   When asked during the interview what state of intoxication he was in, the appellant replied “Pretty sober”. He estimated that he had had eight schooners of New beer between 10.30 am and 7.30 pm. He agreed that when he left the hotel he felt “all right”. 13   During the interview the appellant stated that over a 3 year period the deceased had verbally abused him but had never physically assaulted him. The deceased had, however, pushed him a couple of times. 14   The police took possession of the carving knife. It was on the floor behind the front door when opened. The appellant had said that he dropped it after the deceased collapsed. 15   Constable C.J. Stevenson gave evidence that at 8.50 pm on 6 January 1996 he was on duty in the charge room area of Redfern Police Station. The appellant, who was sitting in the dock area said:

“I called you and did the right thing, but you’re doing the wrong thing. I could have rung you up and said “I put a knife in a bloke’s gut”. You think I’m a horror and a nut. I want my wallet. It’s at Joe’s, the bloke who died. I want you to contact my sister. She’s in Perth. What am I going to be charged with? Yeah, it’s murder. What am I up for? Is it murder?”

Constable Stevenson replied:
“Did you kill him?”

The appellant responded:

“Yes I did. I stuck a knife right in his guts. Of course I’m up for murder. Of course I am. I know he’s dead. I felt for his pulse and knew he was gone. I didn’t mean to do it.”

At 8.55 pm the appellant said:
“ I’m 47 years old and that’s the end of me”.

At 9.38 pm the appellant said:
“I did a fucking good job on him. 47 years old and that’s the end of me. Will I get life? I did the job. I’m going to get life because of a c---, that f---- c---.”

16   Constable Stevenson was not cross-examined. The appellant, when asked about this during the recorded interview, agreed in substance with the version of Constable Stevenson. It appears from that record that the appellant felt that he could have been handled more gently when he was arrested and placed in the caged police vehicle. 17   The appellant’s evidence involved some significant departures from what he had said in his record of interview. He explained that he was feeling very dizzy at the time of the interview. He said that on 6 January 1996 the deceased had been whining and niggling. During the afternoon he had accused the appellant of having intercourse with his de facto wife. The appellant denied this allegation. He said that the deceased, who was upset at having lost his job two weeks previously, became angrier and angrier and eventually ordered the appellant to leave his flat. The appellant declined unless the deceased refunded the two weeks rent paid in advance. 18   The appellant said that he left the hotel around 7 pm to 7.30 pm and went to the flat. He started cleaning the dishes in the sink. The deceased came home and grunted. The appellant said that he finished doing the dishes. About a minute later the deceased screamed at him to get out and moved towards him. The appellant said that he saw the deceased’s right hand coming up swinging towards him. He was struck on the bridge of the nose. He was wearing his glasses. He said that he was going down, he was nearly unconscious, with black spots in front of him. His knees went to jelly. The deceased turned around and walked towards him. The appellant said that he staggered into the kitchen and as the deceased kept coming, he (the appellant) ripped open the second drawer and grabbed a pair of something and came back to the lounge room. The deceased took off. The appellant said that he waved, holding the knife at one stage. He said that he was leaning on the half barrel (a writing desk) which was in the corner, with the knife against his chest. 19   The deceased went back to his starting point and bent down to pick something up. The appellant pointed the knife and said “No”. The deceased picked up a fly screen from the floor and hurled that at him. It just grazed the appellant’s right shoulder. The deceased ducked to the left to pick up the ashtray but it fell out of his grasp. The appellant attempted to head for his bedroom but the deceased blocked his way. They stood and looked at each other for about two seconds. The appellant started to collapse due to shock with the knife falling as he demonstrated at the trial.. The deceased said “You wouldn’t dare” and charged the appellant who still had the knife pointing. The appellant said that the deceased threw a big right haymaker at him, and he told the deceased to “Piss off, you idiot”. The deceased jumped around like a boxer and came at the appellant again, who had the knife against his chest. 20   The deceased threw some punches and engaged in grabbing/wrestling. The appellant said that his arm was fending and pulling. The appellant said:

“He came to get down and bouncing back and I felt the knife going into something. He looked up like that and it was out, went into the back of the wall [near the doorway] and sort of collapsed”.

It is not easy to follow the appellant’s version because he gave a number of demonstrations while giving evidence which he did not explain in words.

21   The appellant was unable to recall what happened in relation to the 000 telephone call and what he said. The appellant said that he was a little bit intimidated when he was in the police station. 22   The appellant said that he had seen the deceased being violent and aggressive towards other people on a number of occasions. The appellant said that he was terrified when the deceased came at him “after he said hit me or something”. 23   In his evidence the appellant said that his broken nose caused him to forget the events he had participated in earlier on the evening of 6 January 1996. He could remember only bits and pieces of his police interview. 24   He said that he forgot to tell the police about the deceased hitting him before he went into the kitchen. He corrected his answer to Question 138. That question was “When he picked up the ashtray did he throw it at you?” The appellant’s answer was “No, he put it down. I said ‘You wouldn’t do it’ and I stabbed him”. In his evidence the appellant said “No, it didn’t happen like that. He said ‘You wouldn’t dare’ and then charged me.” 25   The appellant could not remember telling the police that prior to the deceased picking up the ashtray he was standing in the middle of the rug and that there were no blows thrown. He added that he had forgotten what had happened. 26   The appellant said that the answers he had given to the police as to the knife being on the sink were wrong in that he had forgotten about being blinded by some blow to the face and rooting around in a drawer through linen to get a knife. The difficulty with this explanation was that the appellant had told the police that he had just done the washing up, that the knife was sitting on the sink and that he “didn’t pull it from the drawer.” The appellant said that he was concussed and in shock at the police interview and that is why he made no mention of the deceased hitting him in the face and following him into the kitchen. 27   The appellant agreed that on the form signed by him on being placed in gaol he did not refer to his broken nose although there was a provision for him to state any medical problems. He claimed he mentioned it to the nurse. 28   As to the appellant’s claims that he was very apprehensive about the deceased, the appellant did not tell the police that in his interview. He described his position thus in the interview: “I don’t know how it was. It was just instantaneous. I just - I just had enough of him you know.” Later in the interview he said “No, I’m never scared of him. I wasn’t even scared of him.”. The appellant struggled to explain away this remark but unsuccessfully. 29   The appellant maintained that despite the deceased being a diabetic, very overweight, on an invalid pension and quite intoxicated, he was dancing around like a prize fighter trying to hit the appellant. 30   The appellant stated that he did not stab the deceased deliberately but that he pulled the appellant into him and he came onto the knife. He denied that he raised the hand holding the knife and stabbed it down into the deceased. 31   The version of events given by the appellant in the witness box contradicted in significant respects that given by him to the police. The version given in the witness box lacked credibility and some of the appellant’s explanations were illusory at best. At no stage did the appellant suggest that he was so intoxicated that it affected his understanding of what he was doing and what was happening. 32   The judge directed the jury’s attention to a substantial body of evidence from independent people who knew the deceased to the effect that the deceased’s conduct was unremarkable when he was sober but when he was drunk he had a tendency to become angry and violent. He became argumentative, very boisterous and aggressive. He passed cheeky and unnecessary remarks. His former de facto wife described the deceased as very moody. One minute he could be a really good friend, the next minute an enemy. 33   Three of the people at the Woolpack Hotel became aware of the disagreement between the deceased and the appellant on 6 January. Each said that the appellant came over to him and complained about the deceased’s attitude. The bar attendant said that the appellant told her that the deceased was antagonising him. One of the men at the hotel tried to calm the appellant down describing him as “aggravated”. 34   There was ample material available to the jury to find that the deceased’s conduct had been provocative or at least not to be satisfied that the Crown had negatived provocation. By their verdict the jury negatived self defence. 35   In his final address, the Crown Prosecutor submitted that the crux of the case was that about five hours after the killing the appellant gave one version of events to the police and a very different version when he gave evidence. The Crown emphasised that there was only one wound and that there were no other wounds consistent with a struggle. The fatal wound was downwards and thrusting as it travelled through the deceased’s body. This and other features pointed to the version given after the incident as the correct one. The appellant did not say to the police that the deceased had attacked him. Nor did the deceased mention any injuries. 36   The Crown contended that the version of events given in Court was cobbled together by the appellant months after the incident to raise the issue of self defence. The Crown submitted that the appellant became very angry with the deceased and intended to kill him. The Crown also contended that even if there was provocative conduct on the part of the deceased it was not such as to cause the appellant to so lose his self control as to kill the deceased. 37   Counsel for the appellant submitted that it was the appellant who had provided the bulk of the evidence. He alone knew what had happened. He denied that he intended to kill the deceased or inflict grievous bodily harm. He had telephoned the Emergency Services immediately after the incident. He had asserted at the time, “I didn’t mean to do it”. 38   As to the police interview it was noted that for the first part only the audio recording was available. Counsel relied on the appellant’s condition; he was sobbing, many of his answers could not be recorded or could not be understood. The appellant was very upset. He was not in his right mind and could not be expected to think about every detail. 39   The appellant contended that there was evidence of a struggle in the flat and that he was injured. It was stressed that the deceased was a large aggressive and drunken man with an abusive tongue. Even on the first version he started abusing the appellant when he entered the flat and was aggressive towards him. Counsel reminded the jury that the iron bar found near the deceased had never been tested for blood or finger prints. It was suggested that this may have been used by the deceased to cause the injury which the appellant received to the nose. The gash bled. Counsel referred to and relied on the appellant’s evidence to support self defence. 40   Counsel also submitted that the jury could conclude that the appellant had been provoked, reducing the offence to manslaughter. Counsel told the jury that the judge would also give directions as to manslaughter if the appellant did not intend to kill. These matters were mentioned in passing. In neither address was intoxication on the part of the appellant mentioned. 41   Appeal Ground 1 reads:

That the trial judge erred in directing the jury as to unanimity in respect of manslaughter.

No criticism was made of the judge’s directions as to provocation and manslaughter by an unlawful and dangerous act. At SU.76 he said:

“It is necessary for your verdict to be unanimous, but it is not necessary that you all arrive at the same result by the same approach or for the same reasons.”

42   The judge explained to the jury (SU.77) that if they were to find the accused not guilty of murder and some of them thought that he was guilty of manslaughter on approach A (unlawful and dangerous act) and some thought he was guilty on Approach B (provocation) that would not matter. Their unanimous verdict would be guilty of manslaughter. The judge also explained (SU.77) that any of the possible verdicts could be arrived at for any amount of different reasons provided that the verdict, whatever it be, was unanimous. The judge continued:

“So whether the accused is to be found guilty of murder or not guilty of murder but guilty of manslaughter, or not guilty of murder or manslaughter, all that is necessary is that one of those three results is unanimous. It does not matter how each of you individually arrive at whatever result it is that is unanimous.”

43   The appellant submitted that these directions were wrong. There was a fundamental difference between the two types of manslaughter, no specific intent being required in the doing of the unlawful and dangerous act. For members of a jury to be permitted to arrive at their verdict of manslaughter when some found (or may have found) the requisite intent and provocation and others were not satisfied (or may not have been satisfied) as to intent but found an unlawful and dangerous act, involved contradictory reasoning and findings on important elements. The alternate bases mentioned involve materially different issues and consequences, and lack of unanimity on these offended concepts of justice. 44   The appellant submitted that the jury should have been directed in accordance with Brown (1983) 79 CAR 115 that the concept of a unanimous verdict required that each member of the jury be satisfied that the prosecution had established its case in one particular way. Brown was charged with fraudulently inducing investments contrary to S.13(1) of the Prevention of Fraud (Investments) Act, 1958, the particulars being that he fraudulently induced four persons to enter into agreements to acquire shares in a company by making misleading statements. Five statements were particularised. S.13(1)(a) provided:

“Any person who, by any statement which he knows to be misleading, false or deceptive … induces … another person - (a) to enter into … any agreement for, or with a view to, acquiring … securities shall be guilty of an offence.”

What was forbidden was a knowingly misleading statement inducing an agreement to buy shares. A misleading statement was at the heart of the offence. Subsequent cases have attached considerable importance to the form of the section and the core of the offence.

45   The jury in Brown asked the judge:

“If the individual members of the jury find him guilty of different parts of the count is he guilty of the whole count and is the verdict of guilty unanimous?”

They were directed that it was sufficient if all agreed that there was a dishonest inducement even if they differed as to the statement in the particulars upon which they relied upon as an inducement.

46   The English Court of Appeal said:

“… where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredients that any one of them is proved; but … any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly. … they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.”

It would not suffice if half the jury thought that one of the statements had been proved and the other half thought that another statement had been proved. Brown’s case and its statutory background differ from the present one.

47   By way of general observation the Court in Brown said:

“Different members of the jury may arrive at their conclusions by different routes. Far from invalidating their final conclusion, different approaches which lead to the same result may often be seen as strengthening the verdict. They may be able to say that, whichever way one looks at it, the case is proved. A juror may reach his conclusion by relying upon certain parts of the evidence and having reached that conclusion, find it unnecessary to proceed to see whether he accepts other parts of the evidence.”

48   Brown was considered in Giannetto 1997 1 Cr. App. R.1. At 4 the English Court of Appeal said as to Brown:

“The jurors may have been divided as to which pieces of evidence and which arguments they found compelling, but that would be of no consequence provided they all concluded (albeit for different reasons) that one particular statement set out in the charge was misleading, false or deceptive.”

49   In Phillips (1988) 86 Cr. App. R. 18 Woolf LJ adopted what had been said by Hodgson J in the Court of Appeal in More:

“It seems to us however that it will only be necessary for us to give a direction on the lines set out in Brown … in the comparatively rare case where it emerges at some stage in the course of the trial, or as a result of a question asked by the jury, that there is a risk of disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved.”

That proposition was also adopted by the English Court of Appeal in Giannetto (supra) at 6.

50   In Giannetto the appellant was charged with the murder of his wife. The Crown’s case was that he had either murdered her himself or he had got someone else to do so. The Court placed considerable reliance on Section 8 of the Accessories and Abettors Act, 1861 which provided that accessories and abettors should be liable to be tried, indicted and punished as a principal offender. The Court said at pp 4-5:

“The effect of that section is that even if the appellant did no more than encourage someone else to kill his wife he was liable to be tried, indicted and punished as a principal offender, and where, as here, the prosecution, for good reason, is unable to say whether the defendant did more than encourage, it must be open to the prosecution to invite the jury as a whole to find that at least the defendant encouraged. If the jury does convict it may do so with some jurors satisfied that the defendant was actually the killer, but all will be satisfied that if not himself the killer at least he encouraged and by reason of the statutory provision in the 1861 Act which we have cited no more is necessary to prove the offence. If that approach is correct, then this ground of appeal must fail, so we turn now to consider whether, in the light of the more significant authorities cited before us, the approach which we have outlined can be sustained.”

Their Lordships’ review showed that that approach could be sustained.

51   That Court reviewed a number of English authorities, and the decision of the Supreme Court of Canada in Thatcher v. R. (1987) 39 DLR (4th) 275. Thatcher was charged with the murder of his ex-wife. Alternatively, it was said that he had her killed on his behalf. Section 21 of the Canadian legislation had a similar provision making accessories and abettors liable as principals. Dickson CJC pointed out that Section 21:

“had been designed to alleviate the necessity for the Crown choosing between two different forms of participation in a criminal offence. The law stipulates that both forms of participation are not only equally culpable, but should be treated as one single mode of incurring criminal liability.”
The Chief Justice distinguished Brown , if correct, on the basis that it applies only to the separate identifiable legal elements of the offence. The Court in Giannetto agreed. It also agreed with Lamer J and La Forest J that it was important to examine the facts to see if one possible explanation might not result in guilt.

52   In Giannetto at 7 the Court commented:

“In an article in the 1988 Criminal Law Review Professor Smith considered the English authorities, and concluded that the principle stated in Brown applies ‘when the prosecution allege more than one factual basis for the crime charged and it is not possible to say “if it was not the one then it must have been the other” ‘ [1988] Crim. L.R. 344. If in any given case the factual basis of the crime charged is in reality coterminous with an essential element or ingredient of the offence then we can accept without difficulty Professor Smith’s formulation, and in relation to the facts of the present case it was possible to say, plainly and the prosecution did say, that if the appellant was not himself the killer, then he instigated the offence.”

53   In Giannetto at 8 the Court referred with approval to these remarks of Lloyd LJ in Gaughan [1990] Crim. L.R. 880 (p.7G of the transcript):

“Committing an offence as a principal and committing an offence as an accessory are two different ways of participating in the same offence. They are not separate offences.”

54   These remarks can be applied to the present case. What is involved is the same offence of manslaughter and two different ways in which it may be committed. 55   The appellant relied upon the statement in Giannetto that the jury must be agreed upon the basis on which they find a defendant guilty. It was explained that if the defendant must have committed the offence either as principal or as secondary offender and the jury cannot say which:

“the basis on which the jury must be unanimous is that the defendant having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it and the defendant knows perfectly well which case he has to meet.”

56   The Victorian Court of Criminal Appeal in Clarke and Johnstone (1986) V R 643 at 661 said:

“The prosecution case of manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way.”

That statement of the Victorian practice accords with the practice in New South Wales.

57   The appellant relied upon three Australian decisions to which I shall now turn. In KBT v The Queen (1997) 191 CLR 417 KBT was convicted of maintaining an unlawful sexual relationship with a child contrary to S.229B(1) of the Criminal Code.(Q). The complainant had given evidence of various incidents on the farm on which she lived with KBT and his wife. The judge instructed the jury that to convict KBT they must be satisfied beyond reasonable doubt that on at least three occasions within the period charged, the accused had, for instance, unlawfully and indecently dealt with the child. He did not instruct them that they were required to be of the unanimous opinion that KBT had done the same three acts each constituting an offence of a sexual nature against the complainant, on the same three occasions. The Crown conceded that such a direction should have been given. 58 The High Court held that the essence of the offence required acts each constituting an offence of a sexual nature in relation to the child on three or more occasions. The actus reus of the offence was maintaining an unlawful sexual relationship. Thus a person could not be convicted under S.229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts. KBT is too far removed from the present case to be of any direct assistance. 59 Beach (1994) 75 A Crim R 447, was convicted of causing the death of another by the culpable driving of a motor vehicle in that he drove the motor vehicle (a) negligently or (b) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The judge told the jury, inter alia, that they could convict if some of them were satisfied that the accused was negligent and the rest were satisfied that he was under the influence of alcohol to the required degree. The Victorian Court of Criminal Appeal dismissed an appeal but only because of the jury’s verdict of guilt on the second count, namely, causing serious injury by criminal negligence to another person who was injured in the same collision. That was consistent in the circumstances of the accident in which the deceased met his death only with a finding of criminal negligence on the first count. The death and the serious injury arose out of the same accident in which the accused as the driver of the vehicle caused such death and serious injury. The same test of culpable driving applied to the allegation of criminal negligence in the first and second count. 60 By way of obiter the Victorian Court of Criminal Appeal said:

“In our view, a very different situation would exist where no such finding could be made. In that circumstance, we do not consider that a verdict of guilty could be properly sustained ….
We consider that the legislature cannot have intended the injustice involved in the acceptance of a verdict of guilt of an accused of the commission of a serious criminal offence, based upon quite disparate findings relating to the very foundation upon which the verdict rests.”

61   The appellant contended that those remarks applied in the present case and that the findings involved in the two aspects of manslaughter left to the jury involved quite disparate findings. In my opinion, once the jury were satisfied, as they were, that the Crown had negatived self defence, there was a very strong Crown case. In the circumstances of the present case, any juror who was satisfied of manslaughter consequent upon provocation would also have had to be satisfied there was manslaughter by an unlawful and dangerous act. 62   Leivers and Ballinger 1998 101 A Crim R 175 were convicted of the murder of H. They were co-offenders. They complained that the judge had, when the prosecution relied on alternative bases of liability, namely, aiding murder or, participation in common purpose, failed to direct the jury that they should accept one or another of these alternatives in respect of each appellant and that their verdict had to be unanimous in respect of each relevant element constituting this basis of liability. Indeed, the judge directed the jury that they might;

“have different points of view in the course of reaching a decision and you may reach the same conclusion by different routes… in the end you must all agree with the verdict which is announced whether it happens to be guilty or not guilty in each instance.”

63   The majority (Fitzgerald P and Moynihan J) reviewed the authorities on unanimous verdicts. At 188 they said:

“When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences.”

64   I would not apply the principle first stated in that paragraph to the case where a person is charged with murder and the alternative verdict of manslaughter is left to the jury and murder and manslaughter are put in several different ways. There are a number of reasons for that view:

(a) There is one offence of manslaughter and it arises out of the one incident despite the different varieties.

(b) Provocation and manslaughter by an unlawful and dangerous act are frequently not mentioned by counsel for the defence although available, or are the subject of a passing reference. The accused, as in this case, generally prefers to rely on self-defence. The Crown also may not address upon them or do so very briefly. It is the judge who deals with them often explaining that they have not been canvassed by counsel. The judge deals with these matters in a neutral way and often relatively briefly. The main emphasis is upon self defence, or accident or lack of intent. It is a major handicap when the jury and the judge have not had the benefit of useful addresses from counsel on these points.

(c) Even if the judge elaborates on provocation and manslaughter by an unlawful and dangerous act he has to be careful not to change the emphasis of the trial and the issues for decision.

(d) Trials for murder are complex enough as they are and juries have a difficult enough task dealing with the issue of murder, which is often put several ways, and the issue of manslaughter, which is also often put in several ways. Provocation, especially the second leg of the test (the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or inflict grievous bodily harm) often causes a jury difficulty.
(e) Juries are not familiar with the concepts surrounding and involved in the law of murder and manslaughter. Their task should not be complicated but kept as simple as possible. They should not be distracted from their task of bringing in a unanimous general verdict by having to consider whether they are unanimous on provocation or manslaughter by an unlawful and dangerous act. The task is all the more complex for a jury because before there can be a conviction for murder the Crown must negative provocation. Manslaughter by an unlawful and dangerous act usually arises for consideration where the Crown has not established the requisite intent or the evidence falls short of establishing reckless indifference.

(f) It would be unsatisfactory if a jury were agreed that manslaughter should be the verdict but there had to be a new trial because the jury were not unanimous as to whether provocation had been negatived or it was manslaughter by an unlawful and dangerous act. The difficulties would be exacerbated if the second jury agreed on a verdict of manslaughter but were not agreed on the variety of manslaughter.

(g) In many instances those members of the jury who were not satisfied that the Crown had negatived provocation but were satisfied as to intent would be satisfied that there had been an unlawful and dangerous act.

(h) It is not the variety of manslaughter but the facts which determine the objective gravity of the offence. Neither variety is inherently more serious than the other. A good example of manslaughter by an unlawful and dangerous act with a very high level of culpability was R. v. Bessant unreported, 20 May, 1998, Smart J. The jury had acquitted Bessant of murder and convicted him of manslaughter, the accused only intending to frighten a family but not to harm them. He discharged a shotgun into a family home from the street. A child inside the house was killed by two pellets which penetrated the security screen and a wooden front door.

(i) The accused is amply protected on sentence by the judge having to be satisfied of the elements, the incriminating facts and any aggravating circumstances beyond reasonable doubt. Further, any findings made by the judge must be consistent with the verdict of the jury.

(j) The suggested requirement would involve a departure from the long established existing practice. There is no good reason to do so and further burden the jury in their difficult task.

65   These reasons are not dissimilar from those given in R. v. Isaacs (1997) 41 NSWLR 374. There a bench of five judges of this Court held that while a trial judge has a discretion to question a jury as to the basis of a verdict of guilty of manslaughter, as a matter of practice the trial judge should refrain from asking the jury the basis of a verdict save in exceptional cases. At 379-380 the Court said:

“First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.

Secondly, the jury’s response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.
Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief.
Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel’s address to a jury be expressed in terms appropriate to a plea in mitigation.
Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.
Sixthly, the judge may be embarrassed if he or she does not agree with the jury’s answer to the question.
Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others.”

66   These considerations also bear upon the instant ground of appeal. Isaacs involved a slightly different but related point. It is one thing to tell a jury that they must be agreed on the basis of their verdict. It is another to ask them to specify that basis. This is virtually a distinction without a difference. It is highly improbable that the Court in Isaacs would have held as it did if it were not of the view that manslaughter was but one offence and that different sections of the jury could arrive at the finding of guilt by different routes, namely, provocation or unlawful and dangerous act. 67   In R. v. Cramp [1999] NSWCCA 324 this Court comprising Sully, Ireland and Barr JJ. further considered the need for unanimity where there were alternative grounds for arriving at the verdict of manslaughter. In that case two varieties of manslaughter were advanced, namely, gross negligence and unlawful and dangerous act. Barr J. who delivered the reasons of the Court undertook an extensive review of the authorities. I will not travel over that ground again. At para. 58 he said:

“There is strong authority in this State for regarding as good a conviction, particularly for manslaughter, which might have been reached by alternative processes of reasoning even where the jury have not been instructed that they must all agree about one or other of them.”

At paras. 63-66 Barr J. continued:

“It states the relevant principle too widely to say that jurors who are trying a case of alleged manslaughter must be directed that, insofar as the Crown case relies upon suggested alternative bases for a finding of guilt, the jurors must be unanimous as to some one or more of the suggested bases before they can return a verdict of guilt based upon that basis or those bases. The relevant principle is still too widely stated even if there be added a rider that such unanimity is not required in a case where the accused must be liable on one or other of the suggested alternative bases, and it is impossible to say which.
The English, Canadian, Queensland and Victorian cases accord with those that bind this Court. They are highly persuasive and should be followed in this State.
A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred speak about the former. This appeal is about the latter.
The jury were obliged to consider the whole of the conduct of the appellant for the purpose of considering whether he caused the death of the deceased by his unlawful and dangerous act or by his gross negligence. Each process of reasoning invited by the Crown rested on substantially the same factual basis.”

68   For the reasons earlier given, I would reject the contention that in a case of manslaughter the jury have to be agreed on the basis of liability for manslaughter. It is sufficient if all the jury are agreed on a verdict of manslaughter and it does not matter if some travelled the provocation route and others found that there was an unlawful and dangerous act. This accords with the approach that has been taken by the courts over many years. 69   In any event in the present case any jurors who were satisfied beyond reasonable doubt that the appellant intended to kill the deceased or inflict grievous bodily harm, but who were not so satisfied that the Crown had negatived provocation, must have been satisfied that there had been an unlawful and dangerous act. On any view, a knife was presented at close quarters by the appellant to the deceased and the jury rejected self defence. 70   At the trial counsel for the accused did not ask the judge to correct, alter or add to the directions which he had given, The judge was not asked to give directions along the lines now contended for by the appellant. I would stress the importance of these points being taken at the trial. It is unnecessary, however, to pursue that matter in the present case. 71   I would reject Appeal Ground 1. 72   Appeal Ground 2 reads:

That the trial judge erred in directing the jury with respect to intoxication.

73   The appellant contended that despite the appellant and the Crown not raising the question of intoxication at the trial, there was sufficient evidence of intoxication to require the judge to give a direction. No direction was given or sought as to intoxication and its effect on whether the act was deliberate and the issue of intent to kill or inflict grievous bodily harm. 74   At no stage in either his record of interview or his evidence did the appellant suggest that he was affected by liquor to the extent that the stabbing was not his voluntary act or that he lacked the intent. He did not suggest that his ability to function was affected. 75   As earlier mentioned, he estimated in his record of interview that he had 8 schooners of “new” between 10.30 a.m. and 7.30 p.m. He described himself as “Pretty sober” and said that when he left the hotel he felt all right. The appellant was not at the Woolsack hotel from about 11 a.m. to 4.30 p.m. The deceased was there drinking steadily from about 11 a.m. to 7.00 p.m. 76   Mr. Wolfgang Blau was at the Woolpack Hotel from about 5 p.m. to 6.30 p.m. He saw the appellant and the deceased sitting together and drinking. He talked with the appellant who complained about the deceased. Mr. Blau said that the appellant “was quite sober, yeah, yeah, he wasn’t drunk, no.” It appears that apart from briefly greeting the deceased on entering the hotel Mr. Blau did not talk to him, and that he (the deceased) remained seated at another table in the hotel. When asked if he had formed any opinion as to how drunk or sober the deceased was, Mr. Blau replied “Same stage I would say, yeah.” It is apparent that Mr. Blau had little opportunity to gauge the state of the deceased’s sobriety. He made a guess as his answer indicates. 77   On the evidence, the issue of intoxication did not arise. The appellant appreciated what he was doing and it could not be said that his capacity to form the requisite intent was affected. The evidence as to what the appellant did made it virtually impossible to contend to the contrary. 78   When dealing with “self defence” the judge said at SU 61:

“Next, because the question involves this particular accused, you have to take him as he is in terms of his personal characteristics and as he was at the time in terms of his mental state as you find it to have been. Now, his personal characteristics include, for example, his size relative to that of the deceased. The accused’s mental state includes the extent to which he may have been affected by alcohol, for example. A person’s perceptions may be affected by alcohol. You may take that into account in determining whether the Crown has established that the accused did not believe on reasonable grounds that it was necessary in self defence to do what he did. You are bound to consider whether alcohol may have affected either the accused’s appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger.”


In the circumstances of the present case this was an adequate direction. Indeed, given the evidence, it was a favourable direction.

I would reject Appeal Ground 2.

79   Sentence

Appeal Ground 3 reads:

(a) The sentencing judge erred in sentencing the appellant on the basis of manslaughter by provocation.
(b) The sentence was unduly harsh and severe.

80   The appellant contended that as the judge did not ask the jury for the basis of its verdict, he could not know whether his findings were consistent with the basis of the verdict. Hence the judge should have asked the jury as to the basis of its verdict. This submission is contrary to Isaacs and must be rejected. Isaacs should not be reconsidered. 81   It was further submitted that there was a great difference for sentencing purposes between the criminality involved in manslaughter on the basis of provocation and manslaughter by an unlawful and dangerous act. I do not agree. Nor did the Court in Isaacs. This not an area in which discussion in abstract terms is useful. The focus should always be on the particular facts of the case under consideration and what they reveal. 82   My study of the evidence has led me to the conclusion that there was ample material to support the judge’s view that this was a case of manslaughter because of provocation. Indeed, any other finding would have been surprising. 83   In his challenge to the severity of the sentence, Counsel submitted that the judge failed or failed sufficiently to take into account

“* the age of the applicant (49 years at the time of sentencing)

* the circumstances of the offence namely that the applicant had stabbed the deceased after the deceased, a much taller and bulkier man in comparison with the applicant and who was significantly affected by alcohol at the time, had been verbally abusive and had made threats of physical violence

* the crime did not involve any degree of planning or premeditation
* the applicant’s background as contained in the various reports showing that the applicant had led an unhappy and lonely life resulting in alcohol dependency and an alcohol abuse disorder (report of Dr Nielssen)
* the applicant had only one conviction for simple assault some 21 years earlier
* the applicant’s response in calling triple zero and staying with the deceased after he had stabbed him
* when he was spoken to by police the applicant was co-operative and made full and frank admissions
* the offence having occurred on the spur of the moment and arising out of a situation never likely to be repeated, considerations of personal deterrence did not carry as much weight as in the ordinary case.”

84   The judge stated that the jury must have been satisfied that the act of stabbing was deliberate and not done in self defence. The judge was satisfied beyond reasonable doubt that the appellant stabbed the deceased deliberately and with the intention at least of causing grievous bodily harm. The judge was not satisfied beyond reasonable doubt that the appellant intended to kill the deceased. The judge found that the provocative behaviour was the deceased’s verbal abuse and threats of physical violence. The judge did not find - as asserted by the appellant - that the deceased struck the appellant across the nose with an iron bar found at the scene. 85   The judge took into account:

(a) The appellant’s background including his parents’ separation when he was young, his rejection by his natural father, and his loss of contact with his twin brother, his unhappy marriage which led to separation from his wife, his decline, his inability to form long term relationships and his only occasional contact with his daughter; his life has been rather lonely;

(b) the appellant is of normal intelligence, does not suffer from any major psychiatric disorder but does have an alcohol abuse disorder;

(c) the appellant is not disposed to violence;

(d) his record contained nothing of significance. (He had received a number of fines for a few minor offences and some driving offences - the last minor offence having occurred in 1987 and the last driving offence in 1984);

(e) the appellant notified the Authorities immediately after he discovered he had killed the deceased and voluntarily and promptly gave the police a full and honest account of what had occurred;

(f) the appellant feels a considerable degree of remorse;

(g) the crime was not pre-meditated;

(h) the appellant is unlikely to commit any similar crime again.

86   The judge held that notwithstanding these considerations the objective seriousness of the crime compelled the sentence he imposed. I too appreciate the strength of the appellant’s subjective features. The approach taken by the judge was well open on the materials. The objective gravity of the crime was high. I respectfully agree with the judge. 87   I propose these Orders:

(a) Appeal against conviction dismissed.
(b) Leave to appeal against sentence granted; appeal dismissed.