R v Duke

R v DUKE

[2000] SASC 254

Court of Criminal Appeal: Prior, Williams and Martin JJ

1................ PRIOR J........................... I agree with the reasons given by Martin J.

The appeal against conviction should be dismissed, leave to appeal against sentence granted, and the sentence imposed by the trial judge set aside. In lieu of that sentence, the appellant should be imprisoned for eight years and eight months with a non-parole period of four years and four months, the sentence and non-parole period commencing on 23 March 2000.

3................ WILLIAMS J.... I agree with the orders proposed by Martin J for the reasons which he has given.

4................ MARTIN J......... The appellant was charged with murder. He was acquitted by a jury of murder, but convicted of manslaughter. A sentence of six years imprisonment was imposed and a non-parole period of two years fixed. The appellant appeals against that conviction on the basis that the verdict of the jury was unreasonable. The Director of Public Prosecutions seeks leave to appeal against the sentence and non-parole period, primarily on the basis that they are manifestly inadequate.

Conviction

When a complaint is made that the verdict of the jury is unreasonable, this Court is required to ask itself “whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487 at 493. The Court must make its own independent assessment of the evidence. Whatever be the cause, a verdict which is unreasonable, unsafe or unsatisfactory constitutes a miscarriage of justice requiring the verdict to be set aside.

Evidence

The charge arose out of an incident on Wednesday, 5 May, 1999. The appellant was then aged 29 years and the deceased, Scott Averis, 21 years. They were friends and had worked together at the University of South Australia.
The relevant background to the events of 5 May 1999 began on 28 April, 1999. According to the appellant, an unknown person broke into the premises in which the appellant was living and stole a number of items, including a video camera. At that time the appellant was growing a small amount of cannabis in a shed at the rear of the premises. A small amount of cannabis and a light shade from the hydroponic room was stolen. At about 6 pm on the following day, the deceased visited the appellant’s home for a couple of minutes. The appellant gave evidence that during the conversation suspicions were aroused in his mind as to whether the deceased had been involved in the theft. The appellant said that although the theft had not been mentioned, the deceased made a point of saying that he had been at University all week and had been working “flat out all day” during the previous day. On 30 April 1999, the appellant unsuccessfully attempted to find out if the deceased had been working during the day of the theft. He continued to hold suspicions that the deceased may have been involved.
On 5 May 1999, the appellant returned equipment to the Underdale campus of the University of South Australia. He had a conversation with a witness, Mr Nigel Brewer, about the theft. According to Mr Brewer, the appellant indirectly identified the deceased as the person involved. Mr Brewer asked the appellant whether he was going to do anything about it. The appellant replied in the negative saying that items had been stolen previously and he was not interested in continuing to grow marijuana. Mr Brewer agreed with the proposition in cross-examination that when he asked whether the appellant was going to do something about it, the appellant responded “no, I just want to forget the whole thing”.
While the appellant was at the campus, both he and Mr Brewer smoked some marijuana. Mr Granger was the grounds supervisor at the Underdale campus. He gave evidence that after the appellant and Mr Brewer had finished smoking the marijuana, and in the presence of Mr Brewer, during the conversation as to who was responsible for the theft, the appellant said he would “like to get a baseball bat and go around and break their arms and legs”. Mr Granger responded “what goes around comes around”. Mr Brewer did not mention any reference to a baseball bat and the appellant denied having made that statement. Mr Granger denied that the appellant had said that he was not intending to grow any more marijuana or that he wanted to forget the whole episode.
During the afternoon of Wednesday 5 May 1999, while the appellant was absent from his home, a neighbour of the appellant, Mr Jason Vecchio, saw the deceased, who was then unknown to him, in the vicinity of the rear door of the appellant’s premises. He heard the deceased calling out “Nick, Nick, are you home you scrubber?” Mr Vecchio diverted his attention from the deceased and continued to work on his car. About an hour later his attention was again drawn to the appellant’s premises, but he was unable to recall what occurred to attract his attention. He observed that the deceased was still at the rear of the appellant’s premises and that he was writing a note on a yellow pad. Mr Vecchio returned to working on his car, but he heard the noise of the appellant’s shed being opened. He observed the deceased coming out of the shed and shutting the door. The deceased then turned and walked down the driveway.
The appellant returned home later that afternoon. Mr Vecchio told the appellant that someone had been hanging around for a few hours and he handed to the appellant a note of a description of that person. The appellant checked his shed and a few minutes later told Mr Vecchio that a video camera was missing. He asked Mr Vecchio to accompany him to see if Mr Vecchio could identify the person who had been at the appellant’s premises. From the note of the description given to him, the appellant assumed that the deceased was involved.
Mr Vecchio agreed to accompany the appellant. He went inside his home for a few minutes before moving to the roadway to meet the appellant. In the meantime the appellant had entered a shop on the opposite side of the road to inquire whether the proprietor had seen any person hanging around the appellant’s premises. Mr Vecchio gave evidence that when he left his premises, he saw the appellant leave the shop and walk straight to a Commodore vehicle on the roadway. He joined the appellant and they left in the Commodore.
The appellant gave a different version. He said that after he left the shop, he had to wait for Mr Vecchio. He intended to travel in his panel van and, when Mr Vecchio arrived, the appellant entered the panel van from the passenger’s door because the driver’s door was inoperative. He put the key in the ignition and observed that the vehicle was out of petrol. He decided to take the Commodore which belonged to the woman with whom he was living. The appellant said that before getting out of the panel van he “grabbed the fishing knife that had been on the floor of the van and got out and tucked it in to [his] underwear.” The knife was in a sheath. The appellant was wearing work shorts and a t-shirt. He said he tucked the knife into his underwear with the blade facing his thigh and the handle facing his abdomen. He said the knife was secured by the top and side elastic of his underwear. According to the appellant, he was next to the passenger’s side door of the panel van when he placed the knife in that position and Mr Vecchio was behind him. They then moved to the other vehicle.
Mr Vecchio was asked specifically whether the appellant first entered the passenger’s side of the panel van, and he responded “no, not that I can remember”. He agreed that the appellant said to him “everything will be cool, I just want you to identify him”.
The appellant gave evidence that he was intending to ask Mr Vecchio to identify whether the deceased was the person who had been at the premises. He did not ring the police because he was not sure that it was the deceased. He wanted to confirm whether it was the deceased and to retrieve his camera. He said he knew that the deceased lived with his parents and that the deceased’s father was a police officer. He said he assumed the deceased’s parents would be home. As to why he took the knife, the appellant gave the following evidence (p 441):
“Q.... Now why take the knife. Why did you take the knife.
A.I was scared. I didn’t know what to expect. I assumed he had broken into my house not once but twice and I just didn’t know what he was capable of and what to expect, when I was going to confront him, if it was him; I didn’t know how he was going to react.
Q...... What did you believe about your respective heights and weights, for example.
A.He was bigger than me. He was muscular. He was stronger than me.
Q...... And how about what you thought his reaction might be. What experience had you had talking to him.
A.Just from the things I’d pick up from him over the times that I’d got to know him, I knew he would be capable of anything and I wasn’t sure how he was going to react. I was scared.
Q...... What made you think he was capable of anything.
A.Just the way he acted at work. Some things that had happened at work. Things he had told me about himself. Things that he had done. Things of a violent nature.”
The appellant gave details of the matters upon which he relied in forming his opinion that the deceased was “capable of anything”. It is unnecessary to canvass the details of those matters. They included an assertion by the appellant that the deceased fantasised about doing an armed robbery. The appellant said that he was scared and did not know what to expect. He said he thought there was danger for him and Mr Vecchio.
The knife carried by the accused was a large and weighty weapon. The blade was 15 cms in length and slightly curved toward a sharp tip. The blade was approximately 2.5 cms in width/depth at its widest point and approximately 3 mm thick. The thickness of the blade was such that it would not bend without the application of considerable force. The handle of the knife was approximately 11 cms in length. It was a potentially dangerous weapon.
The knife was contained in a leather sheath which totally enclosed the blade, but only partially enclosed the handle. It was secured by a flap of leather that passed across the handle immediately above the guard that separated the blade from the handle. The flap in turn was secured to the remainder of the sheath by a press stud. A loop of leather was attached to one side of the sheath which would enable the carrier to insert a belt through the loop in order to carry the sheath at waist level. The entire package was approximately 28.5 cms in length and 5 cms in width. In the context of being placed inside the shorts and underwear being worn by the appellant, it can fairly be described as a bulky item.
The deceased lived with his parents at Largs Bay. His girlfriend, Ms Melissa Hoare lived nearby. The appellant first attempted to attend at the deceased’s premises, but he went to the wrong address. He then drove to the home of Ms Hoare. Mr Vecchio accompanied the appellant and the appellant knocked on the front door. There was no answer. Mr Vecchio retreated to the footpath and waited by the car. The appellant walked down the driveway to a shed at the rear of the premises. The deceased and Ms Hoare were in the shed. According to Ms Hoare the appellant said “hello” and asked what they were doing. She told him they were setting up a barbecue. The appellant mentioned that he had a mate in the car and was going to get him. She described his demeanour as “very agitated, standing with his arms crossed and his feet apart” (p 85). She said the deceased walked over to the appellant and they walked down the driveway. She observed the three men at the end of the driveway, obviously in a heated discussion. The deceased and the appellant then returned down the driveway.
According to the appellant, after the formality of greetings there was some discussion and he asked what the deceased had been doing. He said he asked whether it was the deceased who visited the appellant’s house that day. The deceased responded that he had come to visit, but the appellant was not home. The appellant said he asked what the deceased was doing breaking into the shed and the deceased responded “what are you talking about?”. The deceased denied any knowledge of the theft. The appellant said Ms Hoare was taking part in the conversation. After accusation and denial, the appellant walked down the driveway to get Mr Vecchio and the deceased followed. Mr Vecchio made a positive identification. The deceased continued to deny any wrong doing.
Mr Vecchio said that he saw the two men standing at the top of the driveway by the footpath and the appellant asked if the other person was the person he had seen at the appellant’s place. He responded “yes” and the two men walked down the driveway. Mr Vecchio sat in the car and about 10 or 15 minutes later the appellant ran out of the driveway in a state of panic.
The two men returned to the vicinity of the shed. The versions given by Ms Hoare and the appellant as to the events that followed were significantly different.
Ms Hoare (from p 88) said an argument commenced on the driveway. She said the appellant was “ranting and raving”. The deceased was saying he did not know what the appellant was talking about. Ms Hoare described the appellant’s demeanour as follows (p 89):
“A.... By this stage he was exceptionally angry. He was bright red, he was sweating, he was just pointing and leaning over Scott when he was talking to him. His eyes were bloodshot. He looked really, really angry.”
According to Ms Hoare, during the argument the appellant walked into the shed uninvited and she and the deceased followed him. The three of them were standing in a triangle. She described the appellant as shifting his weight from side to side and then, “just out of nowhere”, the appellant punched the deceased “straight in the face”. The blow caused the deceased’s mouth to bleed and he fell back one or two steps. She then gave the following evidence (from p 91):
“Q.... What then happened after that punch.
A.Scott had his hands up, open palms, saying “Nick, don’t do this, don’t do this,” when Nick hit him again and hit him closer to his eye on his cheek. It was at that stage that it was quite obvious Nick wasn’t going to stop, so Nick stepped forward for a third punch, which at that time I stepped in and Scott stepped forward as well. Scott stepped forward to block it and I just wanted to get in between them.
Q...... Just clarifying something, you said that Scott had his hands up saying “Don’t do this, don’t do this.” Do you mean he was saying that verbally or indicating that with his hands.
A.Yes, he said that “Don’t do this to me, don’t do this, don’t do this to me.”
Q...... There was a second punch that connected.
A.Yes.
Q...... Then was there a third punch or a shaping up for a third punch or what.
A.Nick was going in for the third punch when Scott and I both stepped forward.
Q...... Then what positions were Scott and Nick in then.
A.Nick and Scott were facing each other and I was trying to get my body in between to get them apart.
Q...... Just continue, just in the next short discrete bit of what happened.
A.At that stage, I wasn’t very successful in getting them apart. I was just trying to get my body in between to stop them but it wasn’t going to stop, they were sort of grappling with each other, just holding each other like boxers do.
Q...... At that stage, they were doing what you described as grappling. Could you just show us, if you could, with your hands what you mean by that.
A.They were sort of (INDICATES) - Scott more had his arms out, Scott was just sort of trying to get his arms round him.
Q...... You’ve indicated that with your arms and where around Nick was Scott’s arms.
A.More around his upper torso, they were sort of shoulder to shoulder at the time.
Q...... What was Nick doing.
A.Nick was just punching continuously the whole time.
Q...... You tried to intervene between them. Did you get between them or what.
A.Partially, not very much though.
Q...... What happened to you when you tried to intervene between them.
A.I sort of got pushed to the side. I was struck slightly but - and then I stepped back. By that stage they’d sort of moved to face the opposite direction and moved to the opposite side of the shed, just sort of straight around like that.
Q...... Where did you say you were struck.
A.In the side of the cheek.
Q...... Who by.
A.I would assume it would have been Nick, as Scott was on the other side of me.
Q...... Just continue; what was happening then, after you’d been pushed aside, from between Scott and Mr Duke.
A.By that stage they were holding on to each other and Nick had swung Scott around so that they were facing opposite directions to what they were initially, so they are now down the back right-hand side of the shed.
Q...... Who’s facing, say, towards them. Are they facing sideways along the shed or longways up and down.
A.Longways up and down. Scott was facing towards me and I was facing - behind Nick facing Scott.
Q...... Once they were in that position, what were they doing.
A.By this stage they were still, I mean, head to head, I would say, at this stage. Nick was really hunched over. I was just pulling his T shirt and trying to pull him back and he was pushing back on me really really hard to the point where I almost lost my footing. At that stage they both had their heads down and I was standing behind (INDICATES). Scott was holding on to Nick and all I could see was Nick punching Scott in the stomach, what I thought from where I was standing.
Q...... You indicated you holding on to Mr Duke or his clothing in some way at this point, didn’t you.
A.Yes.
Q...... What were you doing, in what way were you taking hold of Mr Duke or his clothing.
A.I likened it to, say, a seat belt (INDICATES). I sort of had one hand over his shoulder and one sort of trying to pull him back from his chest, but only for a second. I lost my footing shortly after that.
Q...... You’ve just indicated what you describe as your hands like a seat belt, haven’t you.
A.Yes.
Q...... Which one of you - tell me if I’m describing this correctly. You were behind Mr Duke.
A.Yes.
Q...... One of your arms was over, what, his shoulder.
A.Yes, my left arm is over his left shoulder. My right arm under his - probably on his chest or on his arm. I’m not quite sure, I can’t remember.
Q...... A bit lower down and more rounded that longitudinal.
A.Yes.
Q...... That was for how long.
A.Seconds.
Q...... What caused that to stop.
A.It was at that point I had - I forgot to bring it with me - I was wearing a Jag watch which has a similar clasp to the one I have at the moment and if you flick your wrist, it comes straight off. So I was trying to hold on to the beams in the shed as I was reaching over myself to put my watch on - there was a blue suitcase next to me and I was reaching back to put my watch on there as Nick was pushing back really hard on me, and I don’t know where my watch ended up, and I lost my footing and fell backwards.
Q...... Something about the watch - I’m not quite clear. Was that coming loose or were you just taking it off.
A.No, it had come loose. I was just trying to get it off. It’s - the edges on it are really sharp so it was digging into my wrist.
Q...... The band had come unclasped, had it.
A.Yes.
Q...... Is this on your left or your right wrist at the time.
A.My left wrist.
Q...... The watch was still around your wrist, even though it was now loose.
A.Yes.
Q...... You were attempting to take it off and put it to one side.
A.Yes.
Q...... You were telling us about that in the context of how you came to stop holding on to Mr Duke.
A.Yes.
Q...... Just take it up; you’re trying to put the watch in the vicinity of the suitcase.
A.At this stage I think I was probably holding on to Nick’s shoulder or to the back of his T shirt (INDICATES), trying to step back and reach over my body to flick it off because I was just basically using him to keep my footing, but as he was pushing back so hard I fell backwards.
Q...... You’ve just indicated - begin from the back of Mr Duke hanging on with your right hand.
A.Yes, I did, yes.
Q...... Grasping with your right hand.
A.Yes.
Q...... Into the vicinity of his right shoulder.
A.Yes.
Q...... Then with your left hand reaching across your own right arm to pick the watch up.
A.Yes.
Q...... Incidentally did you have fingernails at that time.
A.No.
Q...... They were short not long.
A.They were short.
Q...... So what eventually happened with regard to the watch.
A.I don’t actually remember where it landed or where it was after that, I didn’t get to put in across and on to the suitcase, which is what I was aiming for. As I fell back, I can’t actually remember what happened with the watch, but I got my footing and stood upright. It was at that stage Nick stepped back and stepped behind me and Scott stepped to the side.
Q...... Just deal with each of the three participants, you said you fell back. Did you lose your footing and fall right over.
A.No, not completely.
Q...... How far back did you go.
A.Probably about two steps, half a metre.
Q...... During that little period of time that you’ve just described from when you were holding on to Mr Duke and through the watch business and so on, what, if anything, could you see of Mr Duke and Scott.
A.Like I said they were shoulder to shoulder at this stage, sort of with their heads together. I could only see Scott’s face, I couldn’t see Nick’s from where I was standing. All I could see was Nick’s arm going back and forth. From what I could tell he was punching him in the stomach, Scott had a really winded look on his face.
Q...... Which of Mr Duke’s arms did it appear to you were punching Scott in the stomach.
A.It was his right arm.
Q...... And you could see Scott’s face.
A.Yes.
Q...... Then what.
A.That was all I could see from where I was standing, Nick’s arm moving back and forth. It was at that time I stepped back while, I was trying to put my watch across. By the time I had regained my footing, they were apart, by the time I looked up.
Q...... They were apart, in what way, where had each gone.
A.Scott was still standing where he was at the time and he took about three or four steps to his right, to my left, so he was standing about two metres away from me as he sort of just walked backwards and Nick at this stage was behind me.
Q...... Just describe, if you saw it, how Nick got to the last point. You had him doing these punching movements, now he’s behind you, just describe it.
A.What happened?
Q...... Yes.
A.Like I said, it was at that time I was putting my watch back. I was concentrating more looking where my hand was going to flick my watch off. As I looked up Scott had taken about two or three steps to the side, Nick behind me, I didn’t know why, it just stopped. I had no idea - it had just stopped, but it had just stopped.
Q...... I think you described with your arms Scott taking two or three steps to his right, your left.
A.Yes.
Q...... And Mr Duke going past you on your left.
A.Yes.
Q...... What happened next.
A.I wasn’t really concerned with Nick at that stage, I figure he was going to leave. I looked at Scott and said “Are you okay?’ and he didn’t say anything, he just stared at me. He was just staring straight at me going like this with hands (INDICATES) and trying to motion towards his jacket. I was more concerned with his mouth, at that stage, because he had blood dripping down his chin, and I went up to touch his mouth and I realised - I thought he must have had a broken rib, or something. When he was standing near him it looked like he was punching him in the ribs. I walked up to Scott to sort of - I thought the blood - I could see a little bit of blood on his T-shirt, I thought it was from the blood of his lips until I saw Scott motioning towards his chest, and I walked up to him, and as I got about a metre, half a metre, I reached forward to grab Scott’s jacket and pull it back, I noticed the two holes in his T-shirt and I realised that it was at that point I realised what had happened.
Q...... Just still dealing with Scott for the moment, what did you next see him do in relation to Scott.
A.Basically by the time I went up and touched Scott he just started stumbling forward. He is much heavier than I am, so from where he was standing on the left-hand side of the shed, facing the back from where he was standing, he took about three steps towards me and just collapsed, and I was trying to hold him on his feet so he wouldn’t hurt himself when he fell. As I was - he was facing me at the time, I sort of got my arms around him so when we hit the ground he was sort of on my lap.”

As mentioned, the appellant’s version was significantly different. The appellant said he walked into the shed to see if he could see the camera in the shed. Contrary to the evidence of Ms Hoare, the appellant said he looked around briefly and looked behind a curtain that was hanging in the shed. As to the events that followed, the appellant gave the following evidence (p 454):
“Q.... Was anything further said at that point.
A.I said, “Come on, you know, where is it, just show it to me, you know, give it back.”
Q...... Did you get any reply.
A.He was saying, “I don’t know what you’re talking about, coming over with this shit, you know, what are you doing?”
I said, “Just give it back, you sleaze.” And he said, you know, “Why don’t you just fuck off, coming here with this shit.”
I was saying, “Give it back.”
I said to Mel, “Come on Mel, show it to me, where is it?”
She was saying, “I don’t know what you’re talking about. Scott wouldn’t do anything like that.”
I said, “Just give it back, you sleaze,” you know.
He was just saying, “Fuck off out of it, you shit.”
I said to him, “Just give it back. We’ll see what the cops say.”
Q.What happened then.
A...... He was saying “Don’t do this, man,” getting stroppy and shaking his hands in front of him.
Q.Can you demonstrate what he was doing.
A...... Just going like that (INDICATES) “Don’t do this.”
Q.Could you raise your hands.
HER HONOUR: Perhaps stand up.
A.Saying “Don’t do this, man, don’t do this”. (INDICATES)
MR BARRETT: Hands curved in front of him.
XN
Q...... What was the manner of his saying that.
A.He was angry, stroppy, he was agitated.
Q...... What happened.
A.I was a bit worried.
Q...... What were you worried about.
A.Him getting stroppy, angry.
Q...... What did you think.
A.I thought he was going to hit me.
Q...... What did you do.
A.I jabbed him in the chin.
Q...... What do you mean.
A.I threw out my hand, just a reflex action, and hit him in the chin.
Q...... Whereabouts; right, left, middle.
A.Left, left of the chin.
Q...... How many times did you hit him.
A.Just once.
Q...... What happened when you hit him.
A.He got angry and said “Fucking cunt,” and come towards me.
Q...... What happened then.
A.There was pushing and shoving, then a fight broke out.
Q...... Whereabouts were you when the fight broke out.
A.In the middle of the shed, more towards the entrance but in the middle of the shed.
...
Q.When the fight started, what were you doing. When the fight got started, what were you doing.
A...... We were punching each other.
Q.You were punching him.
A...... Yes.
Q.He was punching you.
A...... Yes.
Q.Where were you connecting.
A...... To the sides of the head.
Q.Was he connecting.
A...... Yes.
Q.Was he connecting.
A...... To the sides of the head.
Q.How about Melissa; was she involved at this stage.
A...... Yes.
Q.What’s she doing.
A...... She got in between us and started grabbing at my arms, got in amongst it.
Q.How did the fight develop; what happened, how did things go.
A...... Sort of got into a bit of holding and she was grabbing at my arms and he got me into a headlock and pulled me down a bit, grabbed hold of my hair.
Q.Pause there; you say he got you into a headlock.
A...... Yes.
Q.Which arm of his.
A...... His right arm.
Q.I think we know but describe what you mean by “headlock”.
A...... Arm around my - over the back of my neck and pulled me down with his left hand, grabbed my hair and pulling it.
Q.Just pulling it or pulling it out, what.
A...... Ripping it.
Q.What was Melissa doing at that point.
A...... She was grabbing as well around the shoulder. We was - just the momentum of us all rotating around towards the middle of the shed.
Q.Was anything happening to your legs.
A...... Yes.
Q.What was happening to your legs.
A...... Melissa kicked me twice.
Q.You said that he got you in a headlock, you described the headlock, you’ve said something about rotating. Do you mean rotating while your head was in the headlock or do you mean something else.
A...... No, it was rotated while we were in the headlock and she was grabbing at me.
Q.How did things change from there, if they did; what happened.
A...... I wriggled out of his headlock grip and managed to push him away, got him away from me.
Q.Do you mean by that that he went backwards; sideways or forwards when you pushed him.
A...... He went backwards.
Q,In what direction did he go.
A...... Toward the back of the shed. He was now facing the doorway and I was facing the back of the shed.
Q.Where’s Melissa.
A...... She was behind me.
Q.What happened then.
A...... I’d had enough; it was two onto one. I wanted to get out of there; started walking backwards, took two steps and bumped into Melissa; she jumped on my back, wrapped her arm around my neck, clasped her legs around my midriff.
Q.What did Scott say or do, if anything.
A...... I heard him say, “hold him.” He ran up and started hitting me.
Q.How was he hitting you.
A...... He was punching me in the face.
Q.Where was it connecting.
A...... With my lip, mouth, nose, cheek.
Q.Can you say how many times he punched you at that stage or not.
A...... Yes, eight.
Q.What -
A...... Or more -
Q.What were you doing.
A...... Just trying to block the punches.
Q.Where was Melissa.
A...... She was on my back with her legs wrapped around me.
Q.How about her arms.
A...... With her arm around my neck.
Q.Can you say now which arm of hers was around your neck.
A...... Her left arm.
Q.What about her right arm, where was that, could you tell.
A...... It was holding on to her left arm.
Q.What happened then.
A...... He was punching me. I couldn’t get her off my back and I couldn’t get out of the way of his punches and he was hitting me harder. I couldn’t block him. I couldn’t get her off.
Q.What was happening to your neck.
A...... She was strangling me - choking me - started to get dizzy. I felt one punch hit me in the cheek and I felt the shock wave through my neck and it nearly knocked me unconscious and nearly knocked me off my feet. I struggled, couldn’t get her off. I couldn’t stop him hitting me. I heard him say, “You’re fucking dead cunt”, and he was hitting me. I was scared. I was frantic.
Q.What did you do.
A...... I panicked.
Q.And.
A...... I remembered the knife.
Q.And.
A...... Reached down to my underwear, fumbled around for it, flicked it out, got the button on the sheath, pulled it out - thought if he saw the knife, he’d stop hitting me and get her off my back, get her off my neck, grabbed hold of my hand to hold my head straight so that my head was moving. I was thrashing, trying to get out of the way of it. Grabbed my hair, was hitting me in the face with his right hand. I swung the knife in front of me. I didn’t feel it hit him. I swung it hoping he would see it and would fend him off and he would stop hitting.
Q.What happened.
A...... All of the sudden, he ripped my hair out and stepped back and he stopped hitting, stopped hitting. I dropped the knife. I grabbed her arm and shook her off and I stood there dazed and recovering. I looked up at him and he had my hair in his hand and he coughed and some blood come out and he was holding on to his arm.
A.Holding under his arm (INDICATES). I looked at the knife and I couldn’t see anything on it. I looked at him again, just keeping my eye on him, and just started coming toward us. He said I heard him say, “Mel”. He walked over and took a few more steps and just collapsed and fell.
Q...... Fell right down.
A.Fell. He fell and hit hard on the ground, his face, still holding on to his arm. I knew something was wrong. Grabbed his shirt, Melissa was saying, “What have you done? I was saying, “I don’t know. I don’t know. I didn’t mean for this to happen”.
Q...... What then did you think had happened.
A.I thought he had just been cut. I pulled the shirt up and Melissa pulled it back and noticed two holes in his chest and his side. I knew it was serious.
Q...... What happened.
A.We both got hysterical and I said to her to call an ambulance, “This is serious”.
Later in examination the appellant repeated that he was being punched in the face at the time that he reached for the knife and that he was being choked by Ms Hoare. He said her arm was “dug into my voice box” and that his flow of air was being cut off.
Ms Hoare gave evidence that prior to the arrival of the ambulance the appellant was saying continually “I’m sorry, I didn’t mean for this to happen”. (103 & 154). The accused was reminded of that statement and asked what he meant. He responded: (p 468)
“A.... I didn’t mean for him to be stabbed. I wasn’t looking where I swung the knife, I just swung it. I was so frantic. I was just panicking so much and I couldn’t breathe. I was just - I felt emotions I’ve never felt before. Never been so scared as to think I was going to lose my life, and I swung it hoping he’d see it and just back off. It stopped and that would be it. I didn’t feel it hit him.”
The appellant’s evidence to which I have referred clearly raised the issue of self-defence, but he also said he had not intentionally stabbed the deceased. The appellant’s case in this regard was clarified at the outset of cross-examination: (pp488- ):
“Q.... I wonder if you could just clarify something for the jury. Do you say that you deliberately stabbed Mr Averis or not.
A.No, I say that I didn’t mean to.
Q...... Stabbing Mr Averis was an accident.
A.Yes.
Q...... Correct me if I am wrong but you say, do you, that you were trying to show him the knife.
A.Yes.
Q...... You told the jury, “I swung the knife in front of me. I swung it hoping he would see it.” Is that what you said yesterday.
A.Yes.
Q...... Just to be clear, you’re telling the ladies and gentlemen that your sole purpose when you were brandishing that knife was to show it to Mr Averis.
A.Yes.
Q...... In doing so, actually making contact with Mr Averis was accidental.
A.Yes.
Q...... Because you certainly did make contact, didn’t you.
A.Yes.
Q...... Irrespective of what order they were in, one of the contacts went in through his shoulder and out through his armpit, didn’t it.
A.Yes.
Q...... That happened when you were trying to display, show the knife to Mr Averis.
A.Yes.
Q...... Another one injured his arm and his chest, we’ve heard from Dr James, in one blow.
A.Yes.
Q...... That also happened when you were trying to show the knife to Mr Averis.
A.Yes.
Q...... Another one, as I say, irrespective of what order, went right into his chest 17 cm and severed his aorta; you’ve heard that.
A.Yes.
Q...... That also happened while you were trying to show him the knife.
A.Yes.
Q...... That’s not something you’re just saying to the jury, is it, that it was accidental.
A.No.
Q...... You are really telling this court that the injuries sustained by Mr Averis were purely accidental in the course of you just displaying that knife.
A.Yes.
Q...... All you wanted was for him to see it.
A.All I wanted was for him to stop hitting me, for her to stop strangling me.”
The appellant said in examination that at the time that he physically reached for the knife he was being punched in the face and the deceased had hold of his hair. He also said that he was being choked by Ms Hoare. During cross-examination he said that he did not warn anyone that he had a knife before producing it because he was unable to talk by reason of being choked (p 532). Although he was panicking, he was able to undo the clasp on the sheath that held the knife and pull the knife free leaving the sheath in his clothing. The appellant said that at the moment the knife came out Ms Hoare was not just choking him but was on his back with her legs wrapped around him gripping his waist (pp 459 and 531). In cross-examination the appellant said that immediately after he produced the knife the deceased took hold of the appellant’s hair with his left arm outstretched and continued to punch him with his right fist. The appellant maintained that he swung the knife in front of him without aiming and denied that he swung the knife three times to the upper chest or shoulder area (p 533).
The appellant said in examination that after he had wriggled out of a headlock grip applied by the deceased, he wanted to leave the shed and started walking backwards. He bumped into Ms Hoare and she jumped on his back wrapping her arm around his neck and her legs around his “midriff”. He heard the deceased say “hold him”. During cross-examination the appellant said it was the action of Ms Hoare that prevented him from leaving the shed (p 489).
It was established during cross-examination that the appellant and the deceased were the same height of approximately “5 feet 10 inches” and the appellant weighed 81 kgs (p 526). Ms Hoare weighed approximately 53 kgs and, at the post mortem, the deceased weighed 93 kgs.
There is no dispute that after the deceased collapsed the appellant dropped the knife and panicked. He endeavoured to stem the flow of bleeding and to resuscitate the deceased. As mentioned, Ms Hoare said that prior to the arrival of the ambulance the appellant repeatedly said “I am sorry, I didn’t mean for this to happen”. She was unable to remember anything that was said by the appellant to the ambulance officer or whether she started arguing with the appellant in the presence of the ambulance officers.
After the deceased collapsed, Ms Hoare made an emergency telephone call for an ambulance. That call was recorded and a tape of the relevant parts of the conversations was tendered in evidence. The appellant also spoke to the operator. At the request of counsel for the appellant, all members of the Court have listened to the tape. The appellant sounded upset, but spoke reasonably clearly. During the course of that brief conversation with the operator, the following occurred:
“Q.... Now the offender, are they gone? Have they left the, has, has the offender gone.
A.No, it was me, we had a fight and I, they were attacking me and I, I had to stab him in self-defence.”
In examination the appellant was asked what he meant by the statement on the tape that he had acted in self-defence and he responded: (p 466)
“A.... It meant that I brought the knife out to fend them off, to stop them hitting me, because I thought - I felt emotions I’ve never felt before, that she was strangling me and he was hitting me. I felt fear, I felt fear for my life.”
During cross-examination, having acknowledged that he said to the operator that “I had to stab him in self-defence”, the appellant gave the following evidence (p 490):
“Q.... But you now say to the jury, do you, that not only did you have to stab him in self-defence but it was accidental anyway.
A.That was just an exclamation of despair.
Q...... What was an exclamation of despair.
A.What I said to the ambulance personnel.
Q...... Was what you said, and I just read out, to the ambulance person not right.
A.No, it’s right.
Q...... It was right.
A.Depends how you look in the context of how it was said.”
As mentioned, Mr Vecchio saw the appellant run on to the roadway to wave the ambulance down. He said the appellant yelled out and said “I stabbed him”. The appellant gave evidence of telling Mr Vecchio that he had stabbed the deceased. While at the front of the premises he put the sheath in the car (p 464):
“A.... I felt the sheath was just starting to move down in my jocks. It was just sticking into where my leg is and I reached down and pulled it out and I opened the back door and just threw it on the seat, just disbelief at what had happened and concerned for Scott and shut the door.
Q.Did you see where the sheath went.
A...... It hit the back seat and it bounced. I flipped it down, just in despair and it bounced. I think it ended up on the middle of the back floor where the seat is.”
As to why he put the sheath in the car, the appellant gave the following evidence in cross-examination (p 538):
“A.... I was standing there. The sheath just slipped down a bit. I pulled it out. I just didn’t know what to do with it. I opened the front door and threw it on the back seat.
Q.So the first time that sheath got uncomfortable was at that point, was it.
A...... Well no, it was pretty uncomfortable because I had run down the driveway.
Q.Up until then, during all the driving around and stopping at the previous house, it hadn’t been a problem.
A...... No, because of the weight it sat where it was.
Q.It certainly wasn’t the case that you went into that place with a knife unsheathed and in your right pocket.
A...... No.”
The ambulance officers who attended at the scene gave evidence of statements made by the appellant soon after their arrival. The appellant was trying to hurry them up and one of the officers asked the appellant what had happened. The appellant responded to the effect “I stabbed him twice” or “I stabbed him twice in the chest”. A short time later while the officers were initiating treatment, the second officer asked the appellant what had happened and the appellant responded “We had a scuffle and I stabbed him twice. It was self-defence”.
The deceased died before the ambulance officers arrived. Death was caused by internal haemorrhage resulting from a stab wound to the chest that had penetrated the thoracic aorta. A forensic pathologist, Dr Ross James, described that injury in the following answer (p 253):
“Q.... Injury No. 1 was a stab wound to the left chest of the deceased. It measured 3 centimetres by 1.5 centimetres, and it was situated below the left nipple. It was 47 inches, or 120 centimetres above the level of his heel. The wound track extended between the 7th and 8th routes on the left side before entering the left chest cavity. The left chest cavity is normally empty, apart from the presence of the left lung. The wound track passed through the lower lobe of the left lung. The left lung has an upper and lower lobe, so it passed through the lower lobe, and then penetrated the aorta. It made a hole almost half a centimetre in length on one side of the aorta. The resultant bleeding expected from such an injury largely accumulated in the left chest cavity between the lung and the chest wall. It measured slightly over two litres of blood. The length of the wound track in the body measured 17 centimetres as near as I could make it, and obviously the wound track passed from his left side towards his right side. It was passing slightly backwards at an angle of 30 degrees to a line going straight across his cleft, and it was also passing slightly towards his head at an angle of 30 degrees from a line going straight across his chest. In other words, it went into the left chest going slightly backwards and slightly upwards if he was standing upright at the time it was inflicted. That is a fatal wound.”
Dr James explained that it was not unusual for wound tracks to be longer than the blade that caused them. As to which side of the injury was caused by the sharp edge of the knife, Dr James said that from the deceased’s perspective the left side might have been the sharp edge (p 254).
A second stab wound to the chest was described by Dr James as follows (pp 255 and 256):
“A.... No.2 was also a stab wound in the left chest, and it was gaping. It measured 3 centimetres by 2 centimetres, and it was lateral to that left nipple, as seen in photograph 57. It was 50 inches above the level of his heel, and this wound track simply extended downwards into soft tissues for about 5 centimetres or 2 inches. It didn’t penetrate the chest cavity. It’s of no medical significance whatsoever.”

Dr James expressed the opinion that the blow that caused the second wound probably caused a third stab wound on the back of the left upper arm. That wound was an oblique incised wound or cut measuring 6 cms by 3 cms. Dr James described it as a “long cut on the back of the left upper arm”. If the deceased’s arm was lifted forward, the cut lined up with the second stab wound leading Dr James to the view that they were probably caused by the same blow.
There was a fourth stab wound behind the left shoulder measuring 3 cms by 1 cm. It was single-edged with the sharp edge upwards towards the head and the track of 7 cms extended through soft tissues behind the bone in the left upper arm causing an exit wound near the left armpit.
Dr James concluded that three separate blows could accommodate the five wounds. He said that the stab wounds did not pass through any bone or tough tissue. He said the toughest tissue was the skin itself. There was no injury to the ribs. Dr James explained that the wound which caused the fatal injury to the aorta passed between two ribs and, having entered the chest cavity, then passed through the bottom of the left lung to hit the aorta where it stopped. There was no dispute that the wounds had been caused by the appellant’s knife which had a 15 cm blade. The knife had a very sharp tip and, in the opinion of Dr James, it would have been comparatively easy to penetrate the skin with that knife.
Dr James also described a collection of facial injuries upon the deceased which were of no medical significance in terms of a threat to life. They were as follows:
“(i)... An abrasion about 1½ cm in length on the lateral edge of the upper lip on the left side; ridges in the lining of the lip demonstrated that the lip had been crushed against the adjoining teeth.
(ii)Two abrasions about ½ cm in length on the lower left chin.
(iii).. Some “rather subtle superficial bruising on the left cheek.””
Dr James did not observe any defence wounds or injury to the knuckles of either hand. He found a hair in the palm of the deceased’s left hand which had come from the appellant.
Dr James was unable to comment upon the sequence in which the wounds were caused. He explained that the fatal wound caused the deceased to bleed to death, but there was no mechanical reason why, having received the blow, the deceased would have been incapacitated. Dr James said that the deceased would still have been able to involve himself in a “complex, integrated activity of a physical nature” and that only when his blood loss was such that his blood pressure fell would he have collapsed. He said it was not possible to put a definite time limit on how long it would take to cause a collapse, but it would not have been within ten seconds. He described the aorta as about the size of a garden hose with a hole of about half a centimetre punctured into it. Under pressure it would have sprayed blood which filled the chest cavity. A transfusion would not have been able to keep up with the flow of blood from the puncture to the aorta.
The appellant also sustained injuries. His evidence as to those injuries can be summarised as follows (pp 470-479):
•       a mark in the middle of the bridge of his nose arising from a punch.
•       bleeding from the nose caused by a punch.
•       a contusion across the upper lip.
•       a cut to the lower lip.
•       hair ripped out leaving bald patches.
•       a scratch on the right shoulder.
•       bruises on the right breast and upper arm.
•       a mark above the left breast.
•       redness of the neck.
•....... bruising and swelling between the eyes and nose, the right side of his lip and moustache line and neck.
•a chip to the front right tooth.
Dr David Middleton attended at the City Watchhouse at the request of the police at about 10.20 pm on Wednesday 5 May 1999. He examined the appellant. He asked the appellant about injuries and described the appellant’s answer as follows (p 233):
“A.... The areas that I’ve recorded that he told me: sore neck, voice box, mouth, lip, jaw, nose, forehead, top of head, no sore spots on hands. He did have some previous injuries. No sore spots on body, some sore areas on left upper arm. That was it.”
Upon examination, the appellant complained of tenderness over the larynx, but Dr Middleton found no bruising or other visible injury in that area. He said the appellant appeared to be genuinely tender in the voice box area. The appellant’s lips were bloodstained and mildly swollen, particularly in the area of the right upper lip. There were blood stains around the nostrils and the appellant was tender in the middle of his nose where a small bruise was located. A small red contusion was visible between the appellant’s eyebrows. Although there was no bruising or bleeding observed, the appellant’s scalp was tender in three areas and above the left ear there was a mild lump that Dr Middleton could feel. The appellant’s hands were bloodstained and on the third and fourth knuckles there were scabs, one of which was bleeding slightly. The scabs appeared to be previous injuries. Dr Middleton found that the left upper arm was bruised and observed one small abrasion in that area. The appearance of these injuries was consistent with pressure marks caused by a grip on the arm. There was mild redness in the area of the left elbow. The red area was fresh, but some of the bruising could have been caused prior to the altercation. Similar bruising was present on the right upper arm as well as a large bruise around and just above the right elbow. There was diffuse redness over the upper chest and bruising in the right breast area. Dr Middleton was uncertain whether the diffuse redness was caused by pressure or a nervous type of reaction. The bruising was reasonably recent such as one to a few days. He observed a scratch mark on the right shoulder which was 2 cms in length and fresh.
The appellant was examined by Dr Noel McCleave on 6 May 1999. Dr McCleave took a number of photographs. He observed a fresh bruise between the appellant’s eyebrows about 0.5 cm x 1 cm in size. In Dr McCleave’s opinion that bruise was consistent with having been caused during the altercation on 5 May 1999. A bruise of similar age was observed on the bridge of the appellant’s nose measuring 1 cm x 1 cm. He was able to see a minor chip of a tooth. Dr McCleave made some pertinent observations about the appellant’s neck (pp 556- ):
“Q.... What did you observe about his neck.
A.That there was redness present which is visible in the photographs. It’s present on both sides of his neck. It extends back to the strap muscles which go just from below the ear down to the neck. They are these muscles here, so the muscles that go here (INDICATES), so the redness that extends from there, there and also on the corresponding side.
Q...... I think you measured the length of the redness.
A.Yes, I did. They are about 3 cm in height, in other words, just over an inch in height, an inch and a half to just in the vicinity of about 4 inches in total width.
Q...... I wonder if you’d look at another photograph, and it’s this time from the folder of photographs taken the day before, P3, and in particular would you look at photograph 60.
A.Yes, I may need P3 (EXHIBIT P3 SHOWN TO WITNESS). Yes.
Q...... Do you see a difference there between the photographs that you took of that same area and the photograph taken by the police the day before, the night before.
A.Yes, I do.
Q...... The difference is this, isn’t it, that we don’t see the signs of redness in the police photograph that we see in your photographs.
A.That’s right.
Q...... How could that be. How could it be that the night before there wasn’t any redness and when you examined him there was.
A.That the redness took the duration from the night before to when I saw him develop, to declare itself.
Q...... What does the redness indicate. What does it mean.
A.The redness indicates bruising. It indicates, and when I talk about bruising I’m talking about blood going into a position where it wouldn’t be, and I’m talking about that there’s been obviously an extra extravasation, an oozing out that means, of blood from blood vessels into the surrounding tissues, and that’s taken time to occur.
Q...... That’s what a bruising is essentially.
A.That’s correct.
Q...... Internal bleeding, but quite close to the skin.
A.That’s right, and that can occur very rapidly or it can occur, as in this case, after a period of time.
Q...... Could that have been caused by pressure to the neck.
A.Certainly.
Q...... In fact, is that the likely cause.
A.Yes.
Q...... Pressure such as might be caused by an arm lock or arm locks applied to the neck.
A.Yes.
Q...... What sort of pressure might it take to cause that bruising when you saw when you examined Mr Duke.
A.I’d say there would be a pretty good amount of pressure, you know, a reasonable force.
Q...... Could the sort of force that caused that bruising have affected breathing.
A.Yes, it may well have.
Q...... How does it work, how does that happen.
A.It would have created pressure on his Adam’s apple which you can see in photographs 3A, 3B, and that would have pushed that back against his airway, it may have compressed that, and it would have caused respiratory impairment.”
During cross-examination Dr McCleave confirmed that the reddening around the neck area was consistent with the pressure of clothing to that area. He also agreed that if the appellant had been wriggling, pulling or trying to get out of whatever lock or hold was applied, that type of resistance would contribute to the mechanism that caused the diffuse reddening pattern.
Dr McCleave also observed areas where the appellant’s hair had been pulled from the top of his head. There was tenderness on the left side of the head and reddening above both eyebrows. Swelling and bruising were present on the right side of both the upper and lower lips. Two areas of recent bruising were present on the right arm. Dr McCleave observed a small red bruise of recent origin to the abdomen and an area of linear bruising to the chest caused by a scratch.
The injury to the appellant’s neck was a particularly significant feature of the defence case. It was consistent with the evidence of the appellant and inconsistent with the evidence of Ms Hoare. The seat belt type of grip that Ms Hoare described could not have caused this bruising. Ms Hoare denied that anything occurred in the altercation which could account for the bruising to the neck. Both Drs Middleton and McCleave agreed that the bruising to the neck could have been caused by pressure applied through means of an arm lock or arm locks to that area. A reasonable amount of force would have been needed which had the potential to affect breathing.

Summing Up

Early in her directions to the jury, the learned trial Judge told the members of the jury that they were the sole judges of the facts and that it was for the jury alone to decide whether to believe the whole or any part of the evidence of any witness. She advised that it was the right of the jury to believe all of the evidence of a witness, part of a witness’s evidence or none of it. Her Honour said that in assessing the credibility of the appellant and the weight to be given to his evidence, the jury was to “regard him on the same footing as any other witness in the case.” (p 26)
The learned trial Judge commenced her summing up with respect to the legal elements of the offences of murder and manslaughter by explaining to the jury that manslaughter is always an alternative verdict open to the jury in a prosecution for murder. Her Honour then identified four elements to be proved in order to establish guilt of murder. First, that the act or acts of the appellant caused the death of the deceased. Reference was made to the stab wound to the chest which penetrated the thoracic aorta. Secondly, her Honour identified that the Crown had to prove “that the act or acts of the [appellant] which caused the death were conscious and voluntary”. In that context she said (p 34):
“But as I have said, the actions of the accused in order to be criminal must be deliberate. If what happened was an unwilled, automatic reflex action, or simply an accident, then criminal liability would not attach to the actions of the accused.
You will remember that the accused said in evidence he did not mean to stab Mr Averis. He said he swung the knife in front of him, hoping Mr Averis would see it. He said the subsequent contact was accidental.” (my emphasis)
The learned trial Judge reminded the jury of the appellant’s evidence in cross-examination to which I have earlier referred in which the appellant said that the injuries were caused accidentally. Her Honour then concluded her remarks concerning the second element and introduced the third element of intention in the following passage (p 36):
“Ladies and Gentlemen, as I have said, the second element requires the Crown to prove that the actions of the accused were conscious and voluntary. If there is a reasonable possibility that they were involuntary, that this was simply an accident, then the accused would not be guilty of any crime. As this element is concerned to some extent with the state of mind of the accused, it is convenient to go on and discuss the third element with you, and this third element will require you to consider the issue of intention.
The prosecution must, thirdly, prove, that the act, or acts of the accused which caused the death were done with the intention to kill the deceased, or to cause him grievous bodily harm. This intention must exist at the time of the act, or acts which caused the death were carried out. The phrase “intention to kill” is self-explanatory. Grievous bodily harm means really serious bodily harm.
Let me just repeat that to be quite clear about that matter: grievous bodily harm means really serious bodily harm, and, as I have just said, the intention must exist at the point in time that the act, or acts which caused the death were carried out. So, as you can see, both the second and third elements are, to a large extent, concerned with the accused’s state of mind.
Was the act of stabbing Mr Averis a voluntary act and did the accused have the intention to kill Mr Averis, or cause him grievous bodily harm?” (my emphasis)
The directions then focused on the drawing of inferences and the submissions of counsel concerning matters of particular significance to the issue of intention. At the conclusion of her remarks concerning intention her Honour said (p 40):
“Ladies and Gentlemen, these are all matters that you should very carefully consider. I remind you once again that you must be satisfied, when the accused wielded the knife, that he did so voluntarily, and that he had an intention to kill Mr Averis, or cause him grievous bodily harm. You might remember that the accused said in evidence: “I didn’t mean for him to be stabbed. I wasn’t looking where I swung the knife, I just swung it. I was so frantic. I was just panicking so much and I couldn’t breathe. I was just - I felt emotions I’ve never felt before. Never been so scared as to think I was going to lose my life, and I swung it hoping he’d see it and just back off. It stopped and that would be it. I didn’t feel it hit him.”
The learned trial Judge did not suggest to the jury that if the Crown failed to prove the third ingredient of intention, there was a basis upon which, for that reason, the jury could acquit the appellant of murder but find him guilty of manslaughter. The only basis upon which her Honour advised the jury that the appellant could be found not guilty of murder but guilty of manslaughter was on the basis of excessive self-defence.
The fourth element identified by the learned trial Judge was the requirement that the Crown prove the killing was unlawful. Her Honour explained that the law recognised that some killings may be excused because the person who did the killing was acting in self-defence. She emphasised the onus on the Crown to prove that the conduct was unlawful and, in that context, to disprove that the accused was acting in self-defence. She explained the two stages involved in considering the issue of self-defence and then provided the jury with a written memorandum for their assistance in this regard. Her Honour carefully took the jury through the written memorandum which identified two essential questions for the jury to answer. She invited the jury to consider the first question as to whether the jury was satisfied beyond reasonable doubt that the appellant did not genuinely believe that the conduct to which the charge related was necessary and reasonable to defend himself. She told the jury that if the answer to that question was “yes”, the issue of self-defence disappeared from the trial and, if the Crown had otherwise proven all the elements of the crime, the appellant would be guilty of murder. If the answer to the question was “no”, the jury was instructed to move to the next stage.
As to the second question, the learned trial Judge instructed the jury to ask whether the Crown had proved beyond reasonable doubt that, in the circumstances as the appellant genuinely believed them to be, the appellant’s conduct was not reasonably proportionate to the threat that the appellant genuinely believed to exist. She told the jury that if the answer to that question was “no”, the Crown would have failed to prove its case against the appellant and the verdict would be not guilty of any crime. If the answer to the question was “yes”, the verdict should be not guilty of murder, but guilty of manslaughter.
Upon completion of the directions concerning the legal requirements of self-defence, the learned trial Judge reminded the jury of the appellant’s version as to why he took the knife. She summarised the appellant’s evidence concerning the beginning of the altercation and then read to the jury passages from the appellant’s examination and cross-examination that formed the basis of the claim that he acted in self-defence. She also referred to the evidence of Ms Hoare and to the medical evidence of injuries which Ms Hoare said could not have been caused in the altercation.
In concluding her remarks concerning self-defence, the learned trial Judge summarised the effect of the prosecution and defence cases. She reminded the jury that if it was reasonably possible that the appellant genuinely believed that it was necessary and reasonable to use the knife in the circumstances with which he was confronted, the jury were still required to consider the second stage of the inquiry, namely, whether the “action of stabbing [the deceased] was reasonably proportionate to the threat that [the appellant] genuinely believed to exist.”
The learned trial Judge concluded her directions concerning the issue of self-defence with the following: (p 56)
“Ladies and Gentlemen, they are all matters you need to consider. That is all I want to say about self-defence. I am conscious of the fact that I have spent quite some time on this particular issue because it’s not an easy matter but, in summary, I need to remind you that there are four elements, all of which must be proved by the prosecution beyond reasonable doubt in order for you to find the accused guilty of murder, and in these concluding remarks I think it might be helpful for you if I just go through them again.”
Her Honour then listed the four elements to which I have referred. She reminded the jury of the burden on the Crown to prove the guilt of the appellant beyond reasonable doubt and that if the jury had a reasonable doubt “about any of the issues in this matter, then that doubt must be resolved in favour of the accused.” She repeated that if the jury was not satisfied that the accused was guilty of murder, the jury was required to consider whether manslaughter had been proven.

The jury retired at 12.15 pm. At 2.30 pm the jury returned with a request that the learned trial Judge define “grievous bodily harm”. Her Honour said: (p 60)
“As I told you this morning, grievous bodily harm simply means really serious bodily harm. It is not appropriate to try to define it any better than that. It is really serious bodily harm.”
Subsequently, at the request of the jury, a substantial amount of the appellant’s evidence-in-chief and cross-examination was read, including the passages to which I have already referred concerning the contact being accidental.

Arguments and Conclusions

Against the background of the evidence and the summing up, counsel for the appellant submitted that the only basis upon which the jury could have arrived at its verdict was by finding that the appellant’s conduct in fatally stabbing the deceased was not reasonably proportionate to the threat that the appellant genuinely believed to exist. Subject to the qualification later in these reasons concerning a merciful verdict, I agree. It follows from the verdict that the prosecution failed to satisfy the jury that the appellant did not genuinely believe that his conduct was necessary and reasonable in order to defend himself. Put another way, the jury found it was a reasonable possibility that the appellant genuinely believed his conduct was necessary and reasonable to defend himself. Based on that finding, the argument of counsel proceeded to a proposition that the jury must have found it was reasonably possible that the appellant believed his life was at risk. Counsel argued that if it was a reasonable possibility that the appellant believed his life was at risk, it was unreasonable of the jury to find beyond reasonable doubt that the appellant’s conduct was not reasonably proportionate to that threat to his life that he genuinely believed to exist. The foundation of the appellant’s contention that the verdict was unreasonable is, therefore, the proposition that the jury must have concluded it was a reasonable possibility that the appellant believed his life was at risk. Implicit in that proposition was the suggestion that a conclusion by the jury that the appellant possessed some other belief would be an unreasonable conclusion. Counsel submitted that the evidence overwhelmingly pointed to a belief that the appellant’s life was threatened.
In my opinion, the appellant’s fundamental proposition cannot be sustained. It does not follow from the finding that it was reasonably possible that the appellant genuinely believed that stabbing the deceased was reasonable and necessary to defend himself that the jury found it was reasonably possible that the appellant feared for his life. Furthermore, it would not have been unreasonable for the jury to reject the appellant’s claim that he was in fear of his life. It was open to the jury to conclude that it was a reasonable possibility that, in fear of being beaten, the appellant considered his actions in stabbing the deceased were reasonable and necessary in order to defend himself. At that stage of the inquiry, the jury were concerned solely with the belief of the appellant. There was no element of objectivity involved. The purpose of the first stage of the self-defence inquiry is to examine an accused’s state of mind without the distraction of considering whether that state of mind was reasonable or otherwise.
Counsel for the appellant identified a number of matters that he said overwhelmingly pointed to the existence of a belief by the appellant that his life was threatened. The appellant gave evidence to that effect. The medical evidence supported the appellant’s evidence that he had been choked by Ms Hoare and punched by the deceased. In addition it was clear that his hair had been pulled out. The evidence of Ms Hoare could not explain the medical evidence, particularly the evidence of injury to the neck, and it would have been unreasonable of the jury to accept her evidence and to reject that of the appellant concerning the altercation. In particular, the only reasonable view was that the appellant was telling the truth when he said he was choked by Ms Hoare.
In my opinion, even if the jury accepted that the appellant’s version of the physical events of the altercation was a reasonable possibility, it was nevertheless open to the jury to reject the appellant’s claim that when he produced and used the knife he was in fear of his life. The directions were clear. The jury was entitled to accept all or part only of the appellant’s testimony. The jury rejected the appellant’s evidence on a critical aspect. Contrary to the evidence of the appellant, the jury found that he deliberately struck the deceased with the knife causing the fatal wound. The learned trial Judge told the jury in plain terms that if there was a reasonable possibility that the fatal wound was caused accidentally, the appellant would not be guilty of any crime. A finding that the appellant was guilty of manslaughter necessarily means that the jury rejected the appellant’s version that the fatal wound was caused accidentally when the appellant swung the knife in front of him hoping that the deceased would see it.
Counsel for the appellant suggested that the question of accident “was left quite peripheral”. I do not agree. The passages of the summing up to which I have referred plainly told the jury that if it was a reasonable possibility that the fatal blow was struck accidentally in the manner described by the appellant, the proper verdict was not guilty of any crime.
Counsel for the appellant also suggested that there was some significance to the fact that the word “accident” was the word chosen by the cross-examiner. It is correct that the cross-examiner was the first person to use the word “accident”, but during his examination-in-chief the appellant said that he swung the knife hoping the deceased would see it and said “I didn’t mean for him to be stabbed” (p 468). In addition, the first question in cross-examination did not use the word “accident”. The cross-examiner asked whether the appellant was saying that he deliberately stabbed the deceased or not, and the appellant responded “No, I say that I didn’t mean to”.
In my opinion there is no substance in the suggestion that the evidence of the appellant concerning the accidental nature of the stabbing was in some way peripheral or should be discounted because the cross-examiner was the first person to use the word “accident”. The appellant’s evidence in this regard was critical. That evidence was rejected by the jury. The appellant’s credibility was adversely affected and, in particular, adversely affected on issues centred upon the critical moments of the altercation.
The appellant was the only person armed. He was armed with a large and lethal weapon that was readily accessible throughout the altercation. These were significant facts in considering whether it was a reasonable possibility that the appellant feared for his life. In addition, it was open to the jury to find that the ability of the appellant to extract the knife was not consistent with his version that he was panicking and in fear of his life. According to the appellant, at the time he extracted the knife he was being punched in the face by the deceased, and Ms Hoare was on his back with her legs wrapped around his “midriff’ and her arm was locked around his throat choking him. Notwithstanding those circumstances and his state of panic, on the appellant’s version he was able to reach under his shorts, undo the press stud and extract the knife from the sheath leaving the sheath secured by the elastic of his underwear. In that process the appellant did not cause any injury to himself or to Ms Hoare’s legs. The jury were entitled to assess the significance of the appellant’s ability to successfully extract the knife in these circumstances in view of their finding that, having extracted the knife, the appellant deliberately inflicted the fatal wound. As mentioned, that wound was to the chest of the deceased and the blade was thrust directly into the deceased’s chest two centimetres beyond the full length of the 15 cm blade.
For these reasons, in my opinion it would not have been unreasonable for the jury to have rejected the appellant’s claim that he acted because he was in fear of his life. If the jury took that view, it might be said that the appellant was fortunate that he was not convicted of murder. Nevertheless, in my opinion it was open to the jury to conclude that it was a reasonable possibility that in fear of harm less than a threat to his life the appellant believed that what he did was reasonable and necessary in order to defend himself. If that was the view taken by the jury, it is not surprising that the jury found that the accused’s actions were not reasonably proportionate to the threat that he genuinely believed existed.
I am also of the opinion that even if the jury found it was a reasonable possibility that the appellant feared for his life, the jury could nevertheless have been satisfied that his response in stabbing the deceased in the chest was not reasonably proportionate to that threat which he genuinely believed existed. As mentioned, the appellant was the only person armed. There is no suggestion in the evidence that the appellant thought that Ms Hoare or the deceased were armed or about to have recourse to a weapon. The appellant was able to extract the weapon and, notwithstanding a fear that his life was threatened, it would not have been unreasonable for the jury to conclude that the response in stabbing the deceased in the chest was excessive. The appellant could have waved the knife around or cut the deceased without deliberately stabbing the deceased in the chest in the manner previously discussed. The fatal wound was not caused by a slashing motion. The nature and track of the wound clearly demonstrated that it was caused by the knife being thrust forward and directly into the chest of the deceased. In addition, the fatal wound was inflicted in the context of the other wounds to the chest and the back of the left shoulder. Even if the appellant feared for his life because he was being choked and punched, the jury were entitled to find that his response in that manner was excessive.
As indicated, I have arrived at the views expressed in the preceding paragraphs of these reasons on the assumption that the jury accepted that the appellant’s version of the physical events of the altercation was a reasonable possibility, including his version that at the critical moments he was being punched by the deceased and choked by Ms Hoare who was astride his back. During the course of the submissions by counsel for the appellant there appeared to be a suggestion that as the prosecution had pitched its case at murder in reliance upon the events as described by Ms Hoare, and the defence had relied upon discrediting her evidence through medical evidence, that the jury must have considered the appellant’s entire version as to the facts to be a reasonable possibility. That suggestion must be rejected. Regardless of the approach of the parties, the jury could properly have rejected some parts of the appellant’s evidence concerning the physical events in the altercation. For example, the appellant claimed that he was being choked to the point that his breathing was impaired. However, the jury was not obliged to accept his evidence in that regard. While the diffuse reddening around the neck was consistent with the description given by the appellant of being choked by Ms Hoare, it was clear from the evidence of Dr McCleave that the reddening could have been caused earlier in the altercation when, according to the appellant, the deceased applied a headlock and the appellant wriggled free from it. The jury may have rejected the appellant’s claim that he was choked to the point where his breathing was impaired. The jury saw and heard Ms Hoare and the appellant and was in the best possible position to determine what parts of their evidence to accept or reject. It is not necessary to consider the various possibilities that would have been supported by the evidence because, as I have indicated, the jury could reasonably have arrived at their verdict even if the appellant’s version as to the physical events of the altercation was accepted as a reasonable possibility in its entirety. It should not be supposed, however, that the jury necessarily took that approach. Any lesser view of the appellant’s version would merely serve to strengthen the conclusion that the verdict of the jury was reasonable.
There is a further factor of relevance arising from the verdict of the jury, namely, the intent which accompanied the infliction of the fatal wound. It is not necessary to rely upon the existence of a specific intent to cause grievous bodily harm in reaching the conclusion that the appellant’s complaint is without substance. However, the existence or otherwise of such intent is relevant to the Crown application for leave to appeal and, if it existed, that fact would add weight to the view that the verdict of the jury was not unreasonable.
In my opinion, bearing in mind the way in which the case was left to the jury, the verdict of the jury necessarily implies that the jury found the appellant struck the fatal wound with an intention to cause at least grievous bodily harm. The total effect of the directions was to convey to the jury that the issue of self-defence could only be considered if the jury was satisfied that the Crown had proved the other three elements of the crime of murder. In connection with the second element that the acts were conscious and voluntary, her Honour specifically told the jury that if there was a reasonable possibility that the wounds were caused by accident the appellant would not be guilty of any crime. Her directions then linked that issue with the question of intention.
Counsel for the appellant accepted that the jury must have been satisfied that the appellant deliberately stabbed the deceased. He surmised that the jury would have addressed elements one and two, but would then have considered the issue of self-defence without arriving at a conclusion as to the third ingredient of specific intent. In my opinion, it is highly unlikely that the jury reasoned in that manner. It is clear from the question asked by the jury that attention had been directed to the issue of grievous bodily harm. That issue was only relevant to the third ingredient of specific intent. In addition, once the jury was satisfied that the appellant deliberately thrust the knife deep into the deceased’s chest, in my opinion, in the circumstances of this matter, it is unrealistic to suggest that the jury was not satisfied that the appellant inflicted that wound with an intention to cause grievous bodily harm.
A finding that the appellant possessed an intention to cause grievous bodily harm did not necessarily exclude the possibility that the appellant believed that what he did was reasonable and necessary to defend himself. Unreasonable as that belief may have been, it was open to the jury to find that the accused possessed such a belief. There is also the possibility, however, that the jury was influenced by considerations of mercy. The possibility of such influence upon juries was recognised by the High Court in MacKenzie v The Queen (1996) 190 CLR 348. In the context of inconsistent verdicts returned by the same jury upon different counts, the High Court referred to the reluctance of appellate courts to accept submissions that verdicts are inconsistent in the relevant sense and observed that if there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury. The Court recognised that an appellate court may conclude that a jury took a “merciful view” of the facts upon one count which is a function that has always been open to, and often exercised by, juries. The Court approved of the following observations by King CJ, with whom Olsson and O’Loughlin JJ agreed, in R v Kirkham (1987) 44 SASR 591 at 593:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
The approach derived from McKenzie and Kirkman is readily applicable to the circumstances under consideration where it was submitted that the view reached by the jury at the first stage of the self-defence inquiry is inconsistent with the view taken at the second stage of that inquiry. The approach has particular significance in the context of a charge of murder when the jury is informed of the availability of the lesser verdict of manslaughter. In Gilbert v The Queen (2000) 170 ALR 88, the appellant had been convicted of murder. In the course of the directions the jury had been told that they could not find him guilty of manslaughter. In the context of submissions that no miscarriage of justice had occurred because the jury had been satisfied that the elements of murder had been proven and there was, therefore, no occasion for them to consider a verdict of manslaughter, the following observation was made in a judgment of Gleeson CJ and Gummow J (p 92):
“[14]......... In the days when murder attracted the death penalty, appellate courts were well aware, and took account, of the possibility that juries may be influenced in their deliberations by the presence or absence of manslaughter as a possible verdict.”
It is against the recognition that juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of law explained to them that this Court must assess whether there is some evidence to support the view that the jury took at the second stage of the self-defence inquiry which is said to be inconsistent with the view reached at the first stage of that inquiry. In that context, the following observations of the High Court in McKenzie can be adapted by applying them to the suggestion of inconsistency between the findings at the two stages of the self-defence inquiry:
“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.””

In my opinion no injustice has occurred. There was evidence capable of supporting the findings of the jury at the two stages of the self-defence inquiry. The findings are not inconsistent and the verdict is not unreasonable. There was ample evidence to support the verdict. If it be thought that the findings are difficult to reconcile, the difficulty arises not because the case against the appellant was weak, but because the evidence could readily have supported a finding of guilty of murder. It was a tragic case from the perspectives of all persons involved. In all the circumstances, it would not be surprising if, notwithstanding the needless death of a young person, the plight of the appellant charged with murder in the circumstances disclosed by the evidence aroused feelings within the jury that could lead to a merciful approach. However, regardless of any question of a merciful verdict, for the reasons I have given, in my opinion a reasonable jury applying their minds properly to the facts of the case could reasonably have arrived at the conclusion that the appellant was, by reason of excessive self-defence, not guilty of murder but guilty of manslaughter. No miscarriage of justice has occurred.
The appeal against the conviction should be dismissed.

Sentence

I will continue to refer to Mr Duke as the appellant. The Director of Public Prosecutions seeks leave to appeal against both the head sentence and the non-parole period on the basis that both are manifestly inadequate. Counsel for the Director submitted that they are so low as to shock the public conscience and that they fail to maintain an adequate standard of punishment for the crime of manslaughter where the offence involves the use of a knife introduced into the altercation by the offender. In addition, the Crown argued that the learned trial Judge erred in failing to sentence on the basis that the appellant possessed an intention to cause grievous bodily harm and in failing to give reasons concerning her finding as to that issue.
Putting aside the question of intention, there is no apparent error in the sentencing remarks. The learned sentencing Judge correctly identified her task of determining a factual basis consistent with the verdict of the jury and of making an objective assessment of the true degree of criminality. She sentenced on the basis of excessive self-defence and upon the basis that the verdict was consistent with a finding by the jury that, at the time the appellant administered the fatal blow, he held a genuine belief that his life was under threat. She found that the appellant immediately regretted what he had done and was genuinely remorseful. Of importance, her Honour referred to the evidence given during the course of the trial of the appellant’s positive good character. Each of the character witnesses had given evidence that the appellant possessed a non-violent disposition. At the time of sentence the appellant was 30 years of age and was responsible for the care of his two-year-old daughter. That child is now being cared for by the appellant’s mother and step-father. Her Honour took into account that the appellant had remained in custody following his arrest for approximately four and a half months.
Apart from the question of intention, the remarks of the learned sentencing Judge are not open to criticism. However, counsel for the Director argued that the intention with which the appellant struck the fatal blow was such an important factor in assessing the appellant’s culpability that a failure to make a finding and to explain that finding in the reasons were significant errors in the sentencing process. Counsel accepted that if this Court reached the view that the sentence and non-parole period were not manifestly inadequate, the error with respect to the reasons alone would not justify the grant of leave to appeal against the sentence. Counsel also submitted, however, that if this Court was satisfied that her Honour did not sentence on the basis that the appellant possessed an intent to cause grievous bodily harm at the time that he struck the fatal blow, that failure would be a serious error in the sentencing process which would justify the grant of leave to appeal.
The learned sentencing Judge did not mention the issue of intention in the course of her sentencing remarks. Submissions had been addressed to that issue. Counsel for the appellant identified excessive self-defence as the basis of the verdict together with an acceptance by the jury that the appellant held a genuine belief that his life was threatened. Counsel also submitted that because the jury arrived at its verdict in that manner, it followed that the jury were also of the view that the appellant did not intend to kill or cause grievous bodily harm.
Counsel for the Director accepted that the jury arrived at its verdict on the basis of excessive self-defence. He specifically disavowed any reliance on an intention to kill, but submitted that an intention to cause grievous bodily harm was not “necessarily excluded” by the verdict. He added: (p 372)
“I don’t suggest that this is necessarily significant at the end of the day, but Mr Barrett makes the submission that it follows from that verdict the lack of intent to kill or do grievous bodily harm.
But dealing with grievous bodily harm, in my submission, it doesn’t necessarily follow, whatever the intent was, it can still be within limb one and limb two. But, having said that, and that is really just a matter of what I suggest is the logical analysis of the test, the more important thing, I accept, is the two limbs, and what the first limb carries with it in terms of this man’s intent and his genuine belief that it was necessary to do what he did, and then what the second limb carries.”
The learned sentencing Judge then referred to the manner in which self-defence arose in the context of a fight and counsel for the Director said: (p 373)
“It is an unlawful and dangerous act which necessarily falls short of the requisite intent. It may or may not matter at the end of the day, but it cannot be said that it necessarily falls short of the necessary intent because [he] could have an intention to commit grievous bodily harm.”
The concept of unlawful and dangerous act had not previously been mentioned during the trial or submissions.
Counsel for the appellant replied with respect to the issue of intention to cause grievous bodily harm. The following exchange took place: (p 377)
“[Counsel] In my submission, to introduce that [the intent] into the fact finding process is to introduce an unnecessary complication. I suggest the route to the jury’s verdict is via self-defence.
Her Honour: I think that’s right, Mr Barrett. I haven’t fully fleshed it out in my own mind, but I think that - trying to think it through - it is excessive self-defence which is the issue.”
It would have been preferable if her Honour had specifically mentioned the question of intention in her sentencing remarks. The intent with which the fatal blow was struck was a significant factor in assessing the culpability of the appellant: R v Wicks (1989) 44 A Crim R 147 per Malcolm CJ at 155. The importance of giving reasons, particularly where facts are in dispute, has been emphasised in a number of authorities. In R v Smith (1993) 69 A Crim R 47 at 48, Hunt CJ with whom the other members of the Court of Criminal Appeal agreed, spoke of the failure of the sentencing judge to make findings in connection with relevant facts in dispute as a “serious error”. The importance of sentencing judges exposing in their remarks their attitudes to various matters of aggravation and mitigation was also emphasised by a differently constituted Court of Criminal Appeal in New South Wales in R v Kissner (1993) 69 A Crim R 83 at 88. In Papps v Police [2000] SASC 183 the Full Court discussed the duty of a Magistrate to give adequate reasons for a decision and the importance of adequate reasons to the appellate process. The Court held that the failure of a Magistrate to give adequate reasons is an error of law.
Ordinarily, in a case of manslaughter by excessive self-defence, the intention with which the offender did the acts which caused the death will be a significant factor in the sentencing process and a failure to make a finding with regard to the intent and to express the finding in the reasons for sentence will amount to an error of law. However, the significance of the error will depend upon the circumstances of each case and the attitude of the parties before the sentencing judge. In the matter under consideration, the submissions of counsel for the Director before the learned sentencing Judge suggested that the question of intention was not of significance. In those circumstances, I do not regard the failure of the learned sentencing Judge to refer to this aspect in the course of her sentencing remarks as an error which would justify the grant of leave to the Director.
It appears likely that the learned sentencing Judge did not attempt to make a specific finding concerning intention and that she did not impose sentence on the basis that the appellant possessed an intention to cause grievous bodily harm at the time he inflicted the fatal wound. In view of the ambivalent attitude of counsel for the Director during submissions, it is not surprising that her Honour proceeded on that basis. For the reasons earlier discussed, however, in my opinion the jury must have been satisfied that the appellant possessed an intention to cause grievous bodily harm and the evidence strongly supported that conclusion. In those circumstances her Honour should have sentenced on the basis that the appellant possessed such an intention. However, in view of the approach taken by counsel for the Director, if that matter had stood alone I would not have granted leave to appeal.
As to the adequacy of the head sentence and non-parole period, counsel for the Director acknowledged that there is no so-called “tariff” for the crime of manslaughter because the crime is committed in a wide variety of circumstances. In R v Weinman (1987) 49 SASR 248 at 250, Matheson J referred to the sentencing remarks of Wells AJ in R v Shaw (unreported 27 March 1987) in which his Honour had observed that at the lowest range of criminality manslaughter may be little more than a practical joke that went wrong, and at its highest it stops just short of murder. As King CJ said in Weinman, “the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards” (p 248). Bollen J expressed the same view. Nevertheless, counsel for the Director submitted that this Court has established a standard of punishment for crimes of manslaughter committed in circumstances where the offender has introduced a lethal weapon into a conflict. Alternatively, he submitted that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and to require this Court to interfere in accordance with the well-known principles discussed by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212 and 213.
In R v Bate (1988) 145 LSJS 329, the appellant was acquitted of murder, but convicted of manslaughter. He appealed against a sentence of ten years imprisonment in respect of which a non-parole period of eight years had been fixed. An altercation had occurred between the appellant and the deceased in which the deceased attacked the appellant with a knife. During the ensuing struggle the appellant defended himself against that attack and gained control of the knife. Once in control he stabbed the deceased in the chest. In the particular circumstances the learned trial Judge accepted that, in stabbing the deceased, although intending to inflict the stab wound the appellant did not intend to kill or to cause grievous bodily harm. The appellant was 32 years of age and had some relatively minor prior convictions. In dismissing the appeal against sentence King CJ, with whom Legoe J agreed, classified the crime as one involving “a considerable degree of culpability in that the appellant deliberately used the knife to inflict the wound to the deceased’s chest.” His Honour said (p 330):
“The use of a knife in the course of a struggle, even where the offender is not the original aggressor and does not introduce the knife into the situation, remains a very serious form of criminal conduct and when that conduct results in death, it is inevitable that a substantial sentence will follow.
It is always a matter of opinion and a matter of judgment as to just what is the appropriate sentence for conduct of this kind. The learned sentencing Judge had the immense advantage of hearing the evidence and, in particular, of hearing the appellant give his evidence and of thereby forming some assessment of him and some better assessment of the precise circumstances in which the offending occurred than it is possible for this Court to form. From one point of view it may be thought that the sentence which was imposed was a severe sentence for this type of offending, but it is to be remembered that the offending involved a deliberate stabbing with a knife and that the consequence of that conduct was the death of a person.”
Von Doussa J dissented. In his opinion the sentence was manifestly excessive. His Honour identified as particularly important the fact that the knife was introduced into the altercation by the deceased and that the appellant had initially been defending himself. His Honour would have reduced the head sentence to six years imprisonment with a non-parole period of four years.
Caution must be exercised in relying upon the sentence imposed in Bate because it was imposed under a previous sentencing regime. Translated into the current regime, the head sentence may well have been in the order of seven or eight years. For the same reason, similar caution must be exercised in considering the relevance of the sentence imposed in R v Piotrowski (1990) 156 LSJS 254. The appellant pleaded guilty to manslaughter and two other offences. He was sentenced to imprisonment for 12 years for the crime of manslaughter and to other concurrent terms of imprisonment in respect of the other crimes. A non-parole period of eight years was fixed. An altercation had occurred between the appellant and two men following which the appellant went to his car to await the arrival of the police. While waiting in his car two men approached, one of whom had been involved in the earlier altercation. The appellant took a butcher’s knife from under the seat of his car. The men approached and spoke to the appellant and then grabbed the appellant with the intention of wrestling the knife from him. A struggle ensued and, toward the end of the struggle, while the appellant and the deceased were on the ground the appellant inflicted fatal stab wounds. The basis upon which the appellant was to be sentenced was expressed by King CJ as follows (p 255):
“It is agreed that the appellant at the time that he inflicted the stab wounds was in a general sense acting in his defence, that is to say, in the sense that he believed that the other men were attempting to get the knife from him and that that might put him in danger. It is agreed, however, that the use of the knife was not justified as a reasonable and necessary measure of self-defence but that the appellant in inflicting the wounds did not have the intention to kill or do grievous bodily harm.”
In rejecting the appeal against sentence King CJ, with whom Cox and Duggan JJ agreed, expressed the view that the circumstances made the offending “a very serious example of the crime of manslaughter”. In those circumstances, notwithstanding that the appellant was only 19 years of age, his Honour was of the view that while the sentence was severe it was not manifestly excessive. King CJ summarised the situation in the following passages (pp 255-256):
“It is impossible to escape, however, from the fact that it was the appellant who introduced the knife into the situation. He had already inflicted a significant injury upon Reynolds in the course of the earlier altercation. Nevertheless, he did not shrink from further confrontation with Reynolds and Wright. He made no attempt to leave his car and retreat from what he perceived to be a situation which might develop into further violence. On the contrary he took the knife from the car and stood his ground. He must have been well aware of the danger which that might introduce into an already inflamed situation. Moreover, his use of the knife was extensive and can only be viewed very seriously. It was not a case in which a man in some fear of what might happen if he lost possession of the knife inflicted a warning stab wound in order to deter his opponents. He inflicted no less than twelve stab wounds upon the unfortunate victim. Moreover, the crime of manslaughter was committed against the background of his having already inflicted a significant injury on Reynolds and against the background of the other cuts to Reynolds, which are the subject of the unlawful wounding charge.
...
The youth of the appellant is a matter to which the court has to pay serious attention. It is a sad thing to see a man of this appellant’s age faced with a long term of imprisonment. Nevertheless, the sentence which the court must impose for the crime of manslaughter must reflect the gravity of that crime, involving as it does the destruction of a human life, and also must operate as a deterrent to other people who might be tempted to act in a way which might result in death. In particular, it is necessary that the sentences imposed by courts should be a warning and a deterrent to those who are tempted to introduce a lethal instrument such as a knife into a potentially violent situation. There is no doubt that the sentence which has been imposed upon this appellant is severe, particularly for a man of his age.”
By way of contrast, counsel referred to R v Wait (1991) 161 LSJS 357. The Crown sought leave to appeal against a sentence of four and a half years imprisonment in respect of which a non-parole period of two years had been fixed. In short, the offender struck the deceased approximately three blows to the face and head. The learned sentencing Judge found that death resulted from the deceased’s fall to the floor. The events occurred against a background of ill feeling and were precipitated by the deceased turning a hose onto the respondent. Leave to appeal was refused. Olsson J observed that the learned sentencing Judge had been moved, in the unusual circumstances before him, to extend considerable leniency to the offender. His Honour was of the view that there was ample evidence to justify extending “a degree of mercy which might well be unthinkable in other, different situations of manslaughter.” Duggan J distinguished the circumstances from those cases in which a weapon is used. His Honour observed that, generally speaking, where death is unintentionally caused following a fall in the course of an assault the offending is toward the lower end of the scale of seriousness for offences of manslaughter. Again, caution must be exercised in comparing the actual penalty because it was imposed under a different sentencing regime.
In R v Tomac (1996) 67 SASR 376, the appellant had been found not guilty of murder but guilty of manslaughter. The deceased was one of seven men who had gone to the appellant’s property to steal marijuana growing in the appellant’s backyard. As the deceased was crouching outside the back fence of the property, he was struck in the head by a bullet from a weapon fired by the appellant. It was accepted that the acquittal of murder implied that there was no intention to kill or cause grievous bodily harm and that the appellant had committed manslaughter by an unlawful and dangerous act. Sentence was imposed on the basis that, having been confronted by the intruders, the appellant went inside, loaded the rifle, carried it outside and fired a shot into the back fence intending to scare the intruders. The deceased could not have been seen by the appellant and was hit by the projectile which penetrated the fence. On an appeal by the appellant against his sentence of seven years imprisonment in respect of which a non-parole period of three and a half years had been fixed, the Court of Criminal Appeal held that the sentence was manifestly excessive. The observation was made that the shooting was not a deliberate shooting of a person and was a shooting without an intention to hit the deceased. A sentence of five years imprisonment with a non-parole period of two years was substituted.

In my opinion, in cases of manslaughter it is inappropriate to attempt to define a particular tariff or standard, even for cases in which the lethal weapon is introduced into the fatal events by the offender. The variation in circumstances is too great. It can be said, however, that the introduction of a lethal weapon into circumstances of conflict and the use of the weapon to cause death will almost invariably be an aggravating feature of culpability that elevates the crime into the more serious category of manslaughter. In addition some guidance as to the upper end of the range of penalties applicable for the crime of manslaughter is found in Weinman where, on a Crown appeal, a sentence of 15 years was imposed with a non-parole period of ten years. Generally speaking, a sentence of three or four years is toward the lowest end of the scale.
There is a further aspect that requires careful consideration, namely, the maintenance of a proper relationship between the appropriate sentences for wounding with intent to cause grievous bodily harm by use of a knife and manslaughter resulting from the use of a knife. Penalties imposed for manslaughter in such circumstances will affect standards of punishment for the lesser crime of wounding with intent to cause grievous bodily harm. In Weinman, the offender struck the fatal blow upon the deceased in the course of a violent attack of a sexual nature. In respect of the original sentence of ten years imprisonment against which the Crown appealed, King CJ expressed concern that a failure by the court to intervene might affect the standards of punishment applied in serious cases of sexual assault. His Honour observed (p 249):
“The degree and nature of the sexual violence used by the respondent would have demanded a sentence of at least ten years if death had not ensued. To allow the sentence to stand when death did ensue might militate against the application of adequate standards of punishment for serious sexual assaults.”
Matheson J expressed a similar view.
The crime of wounding with intent to cause grievous bodily harm is also committed in a wide variety of circumstances. However, if the deceased had not died as a consequence of the stab wound to his chest and, on the basis of excessive self-defence, the appellant had been convicted of wounding with intent to cause grievous bodily harm, in my opinion a penalty of six years imprisonment would have been at the upper end of the appropriate range of penalty for the lesser crime. While I acknowledge that there can be no strict divisions by way of sentence between various crimes and overlapping will occur, in my opinion that comparison demonstrates the manifest inadequacy of the sentence under consideration.
Irrespective of a comparison with sentencing standards for wounding offences, in my opinion the sentence of six years is manifestly inadequate. That sentence fails to reflect properly the appellant’s culpability and the seriousness of the crime he committed. The appellant took the knife with him into a situation that he anticipated might be volatile. When he introduced the knife, albeit in the circumstances to which I have previously referred, the appellant made no attempt to warn the deceased of the presence of the knife or to use it in a manner which would deter the deceased without inflicting extremely serious injuries to the deceased. Instead, the appellant thrust the knife forward into the chest of the deceased on two occasions and into the rear of the deceased’s shoulder on one occasion. The culpability of his conduct is reflected by the type of weapon used and by the nature and depth of the fatal wound.
As to the non-parole period, in my opinion the period of two years is manifestly inadequate. It fails to reflect adequately both the culpability of the appellant’s conduct and the element of general deterrence. In Power v The Queen (1974) 131 CLR 623 at 627, the High Court held that in fixing a non-parole period the sentencing court should determine the minimum period for which, according to accepted principles of sentencing, the offender should be imprisoned. The court confirmed the relevance of general deterrence in the fixing of a non-parole period. The manifest inadequacy of the non-parole period is such as to shock the public conscience.
Leaving aside the issue of intention to cause grievous bodily harm, in my opinion the sentence and non-parole period are so inadequate as to demonstrate that her Honour fell into error. However, such inadequacy and error do not necessarily justify the grant of leave to the Director. In Everett v The Queen (1994) 181 CLR 295 at 299 and 300, the High Court emphasised that the jurisdiction to grant leave to the Director to appeal against sentence should be exercised only in the rare and exceptional case and that the issue of whether leave should be granted must be considered as a “distinct matter”. The Court said that in determining whether the Director had discharged the onus in that regard, the Court should be guided by the following remarks of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310:
“An appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.
The majority added in respect of that passage:
“The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”.
In R v Barbara (unreported New South Wales Court of Criminal Appeal No. 60638 delivered 24 February 1997), Hunt CJ at CL with whom the other members of the Court agreed, pointed out that the passage I have quoted from the judgment in Everett was not limited to laying down some new point of principle. His Honour said:
“It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct.”
I am persuaded that this is an appropriate case in which to grant leave to appeal. Error has been demonstrated and, although a specific tariff or standard cannot be set for crimes of manslaughter generally, in serious crimes of manslaughter such as the one under consideration it is important that penalties are imposed that properly reflect the seriousness of the crime and the culpability of the offender. This Court should provide guidance for sentencing courts in this difficult area. In addition, to allow this sentence and non-parole period to stand would not only shock the public conscience but would send the wrong message to sentencing courts concerned with the lesser crime of wounding with intent to cause grievous bodily harm.
This Court must now fix an appropriate sentence and non-parole period, but is required to do so bearing in mind the principle of double jeopardy that applies when this Court imposes sentence following a successful Crown appeal. If the appellant was to be sentenced on the basis that he did not possess an intent to cause grievous bodily harm at the time he inflicted the fatal wound, in my opinion it would have been appropriate for this Court to substitute a sentence of seven years and six calendar months imprisonment and to fix a non-parole period of three years and three calendar months. However, for the reasons previously discussed, in my opinion the jury was satisfied that the appellant possessed an intent to cause grievous bodily harm.
In addition, from my review of the evidence I am satisfied beyond reasonable doubt that the appellant possessed that specific intent at the time he inflicted the fatal wound. The issue remains as to whether the attitude of the Crown before the learned sentencing Judge should restrain this Court from sentencing on the basis that the appellant possessed such an intention. In my opinion, the ambivalent attitude of the Crown before the learned sentencing judge, while relevant to the question as to whether leave to appeal should have been given, is not an impediment to this Court sentencing on the proper factual basis disclosed in the evidence and consistent with the verdict of the jury.
As to the appellant’s genuine belief concerning the threat he faced, the learned sentencing Judge sentenced on the basis that the appellant believed his life was threatened. Although the jury may have found that the appellant believed he was threatened with harm less than a threat to his life, the verdict of the jury does not exclude the possibility that he believed his life was under threat. In those circumstances it was open to the learned sentencing Judge to take the approach that she took. In my opinion, as the learned sentencing Judge had the advantage of seeing and hearing all the evidence, including the appellant, this Court should do likewise.
Taking into account the period of approximately four and a half months the appellant spent in custody prior to sentencing, and bearing in mind the principle of double jeopardy, in my opinion this Court should fix a sentence of eight years and eight calendar months imprisonment to date from 23 March 2000.
As to the non-parole period, a number of circumstances combine to indicate that a lesser non-parole period than would usually be imposed for such a sentence is appropriate. As mentioned, evidence was led of the appellant’s positive good character and of his non-violent disposition. He is a relatively young person. His offending occurred in the context of his belief that the deceased was responsible for stealing property from the appellant’s premises. The fatal blow was struck in the context of a violent physical altercation and in excessive self-defence rather than as an act of wanton violence. The evidence strongly suggests that the appellant is unlikely to re-offend. Finally, the element of double jeopardy is of particular relevance because the effect of the order I propose is to substantially increase the minimum period of imprisonment to be served by the appellant.
In all the circumstances I would fix a non-parole period of four years and four calendar months commencing on 23 March 2000.

[2000] SASC 254

4 August 2000