R v Fragomeli - [2008] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRAGOMELI
[2008] SASC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
17 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
CRIMINAL LAW - EVIDENCE - RES GESTAE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - DIRECTION TO JURY
Appeal against conviction - appellant acquitted by jury of murder, but convicted of manslaughter - whether trial judge erred in summing-up as to self-defence - whether correct to leave the manslaughter alternative to the jury - whether statement by deceased correctly admitted during the trial - whether verdict unsafe and unsatisfactory.
Held: Appeal dismissed, directions to the jury on the issue of self-defence were not attended by error - manslaughter was appropriately left to the jury - statement made by deceased was admissible - no substance in complaint that the verdict was unreasonable.
Criminal Law Consolidation Act 1935 (SA), s 15, s 15C, s 353, referred to.
Subramanium v Public Prosecutor [1956] 1 WLR 965; Wilson v The Queen (1992) 174 CLR 313, applied.
R v Bednikov (1997) 193 LSJS 254, distinguished.
Mraz v The Queen (1955) 93 CLR 493, discussed.
Benbolt v The Queen (1993) 60 SASR 7; Gilbert v The Queen (2000) 201 CLR 414; R v Cooke (1985) 39 SASR 225; R v Falconer (1990) 171 CLR 30; R v Matthews (2005) 91 SASR 196; R v Murphy (1988) 52 SASR 186; R v Williamson (No 2) (1996) 67 SASR 428; R v Zikovic (1995) 17 A Crim R 396, considered.

R v FRAGOMELI
[2008] SASC 96
Court of Criminal Appeal: Sulan, Vanstone and White JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Vanstone J.
I have read the reasons of White J. I agree with White J that the submission of counsel for the appellant involves a misreading of the judgment in Wilson v The Queen.[1]
[1] (1992) 174 CLR 313.
The majority in Wilson, in considering the test for whether an act is dangerous, determined that the question is to be answered in terms of whether the act carried with it an appreciable risk of serious injury. If a jury were to conclude objectively that the conduct of the accused carried with it greater than an appreciable risk of serious injury, then the act would, nevertheless, be a dangerous act and the accused would be guilty of manslaughter.
The appellant’s counsel appears to have confused the question of the subjective test for recklessness in murder with the objective test of a dangerous act sufficient for manslaughter by an unlawful and dangerous act. He submitted that if the act was such that it carried a risk of serious injury that was more than merely appreciable, then it was not a dangerous act, as defined in Wilson, for manslaughter. That is a misunderstanding of the decision in Wilson. The High Court decided that, in order for an act to be dangerous, it must carry an appreciable risk of serious injury. If the risk is greater than an appreciable risk of serious injury, then the act is nevertheless a dangerous act.
Counsel for the appellant seems to have argued that a risk greater than an appreciable risk of serious injury would necessarily mean that the conduct of the appellant was reckless to the degree required to satisfy recklessness for murder. The assumption made by the appellant is that if the objective view of the act is that there is a certainty of serious injury, it follows that the jury should have concluded that the appellant himself foresaw the likelihood that death or grievous bodily harm would result from his conduct.
That reasoning is fallacious. Counsel has confused the subjective element necessary to prove the mens rea for murder with the objective test of whether an act is dangerous, leading to the offence of manslaughter. The flaw in counsel’s reasoning in the circumstances of the present case is illustrated by the reasons of Vanstone J.
VANSTONE J: After trial before a judge and jury Anthony Fragomeli was acquitted of murder, but convicted for the alternative verdict of manslaughter. He now appeals against that conviction on various grounds. These include complaints as to directions given by the learned trial judge in the course of her summing up – principally as to self-defence – the decision to leave the manslaughter alternative to the jury, a ruling on admissibility made during the trial, and a ground asserting that the verdict is unsafe and unsatisfactory and cannot be supported having regard to the evidence.
Background
The events leading to the victim’s death arose from a chance traffic incident which occurred at a T-junction in Para Hills West. It is necessary to explain the events in some detail. The following summary is pieced together from the evidence of all the participants, including the appellant, and is either non-contentious or at least well supported.
During the afternoon and evening of 11 November 2005 the victim and four of his friends, all soldiers, had been drinking for several hours at a private home. Soon after 9 o’clock they departed in Andrew MacLeod’s motor vehicle to go to North Adelaide. Their route took them along Kentia Drive towards Beafield Road, Para Hills West. The driver, John Senniss, was relatively sober, but the other men were intoxicated. The victim’s blood was later found to contain 0.245 grams of alcohol per 100 millilitres of blood.
At the same time the appellant was approaching the junction from Beafield Road. He was intending to visit the home of a friend, Stephen Lane, who lived on Kentia Drive. He was not affected by liquor. Approaching the same point the two vehicles nearly collided. At that, the victim and a companion, Robert Ellingham, alighted from their car intending to confront the appellant. However the appellant continued the short distance to his friend’s house and parked his vehicle there.
The appellant ran to the front door, calling to his friend to let him in. He was pursued by the victim and his companion. When the door was opened by Lane, all three men entered the home. There the victim and the appellant grappled with each other. Meanwhile the rest of the victim’s friends advanced to Lane’s property and their car was brought there. Senniss, the driver, also entered Lane’s house, but on his account he was merely extracting the victim, who was wrestling with the appellant. There was fighting inside and a window was broken. On disengaging from the victim, the appellant went to Lane’s kitchen and armed himself with a knife. Upon his return he found the front room empty, but hearing noise from outside and believing Lane to be outside, he went out the front door.
Once the group left Lane’s house there was further fighting in the front garden and nearer the pavement. Lane went back inside and armed himself with a knife. The appellant and Lane were then both brandishing their knives and the victim, at least, was abusing the appellant on account of his production of a knife.
There was much yelling and swearing. Another of the victim’s companions Ciaran McGinniss, was yelling at his friends to get in the car. McGinniss said that the appellant responded that he was not going to. He said: “I’m not turning my back on this guy [the appellant] because he’s going to stab me.” This evidence is the focus of the third ground of appeal. McGinniss said that the victim was kicked to the groin by the appellant, which pushed him back and into the car. However he rebounded and continued to be aggressive towards the appellant.
At some point during the fighting at the front of the house Ellingham was stabbed. It was not clear whether the appellant or Lane was responsible. MacLeod described trying to get Ellingham into the car, not at first realising that he had been injured. Initially Ellingham resisted but then he walked back to the car with MacLeod and got into the back seat.
The sequence of events is not easy to establish but it appears that after the appellant rebounded from the car he and the victim moved away from it and back towards the junction, the two men being described variously as “shaping up to each other”, “skipping” about each other and “squaring off”. The appellant was brandishing the knife, but it was not always visible in front of him. The victim was heard to yell such things as: “Put the knife down [and] fight like a man”. McGinniss said that as the two men proceeded to the junction the distance between them varied from about one to five metres.
At about this time the car was moved again, to be closer to the T-junction. Meanwhile MacLeod had ascertained that Ellingham had been stabbed and was bleeding profusely. He said he dragged Ellingham out of the car and laid him down on his side on the roadway. Ellingham himself was yelling to his friends that he needed to get help and that they should go.
Whilst MacLeod was tending to Ellingham on the roadway he said the appellant approached holding his knife and kicked Ellingham’s legs. MacLeod said that the appellant then moved away, but then came back and went to kick Ellingham again. MacLeod was able to ward him away. During that incident the appellant brought the knife to within a few centimetres of MacLeod’s face. In his evidence the appellant acknowledged kicking Ellingham, but said it was later as he moved back towards the house at the end of the incident. He said that he told Ellingham to “Get out of here” and told the other soldiers to “Get your mate and go to the hospital. Get in the car and cruise.”
At one stage Lane had gone into his home to check on his pregnant girlfriend. He said when he returned the appellant was still under attack but the group had moved back towards the junction. Senniss was still attempting to extract the victim and end the incident. As the confrontation moved towards the T-junction it narrowed to one involving only the appellant and the victim. By this time it was clear that the only soldier continuing to act aggressively was the victim, that his friends were attempting to contain him and leave and also that Ellingham was badly injured. It appears that it was during this final period that the victim suffered three stab wounds to the chest, back and hip, two of which were life-threatening. The victim died shortly after being taken to hospital that night.
Police soon arrived at the scene and spoke with the appellant. He was arrested. Upon being questioned he told the police that after the near collision, two males had followed him down the street to his friend’s house and started fighting with him. They came into the house and were hitting him and his friend. He said they kept coming at him and he grabbed a knife from the kitchen because he “was getting hurt”. One of the males then came at him and he said he “just sort of swung it and yeah…I must have got him”. It would appear he was there referring to Ellingham. The appellant also referred to a man with a broken tooth who was “going off at everyone”. Clearly, this was the victim, Egan. He said that male came at him while he had the knife. He admitted to swinging the knife at him, but did not think he hit him with it. He said he was not aware that anyone had been killed.
At trial the appellant described two of the victim’s group alighting, chasing him along the street, coming into the house and fighting with him and his friend Lane, both inside and outside the house. The appellant identified Ellingham and the victim as those two men. He said he took up the knife from the kitchen after the altercation inside because he was scared for himself, Lane and Lane’s girlfriend. He said he did not want to stab anyone, though he admitted in cross-examination that he had it in mind that he might use the knife if necessary.
The appellant described Ellingham cornering him outside, throwing punches, ready to fight. He was swinging the knife around, telling Ellingham to go away. At one stage he swung the knife in Ellingham’s direction, because Ellingham was really close and he “felt trapped”. He said he was not sure whether he made contact. However it seems likely that Ellingham was stabbed at this point. The appellant said that once aware of the injury he yelled to the victim and his friends: “Just get out of here. Take him to hospital.”
The appellant claimed no clear recollection of the victim’s stabbing. He said he vaguely remembered being at the intersection with a few people, including the victim who was still trying to attack. The appellant and the victim’s friends were all telling the victim to leave, but he was not listening. He kept coming towards the appellant. The appellant said he was backing away, but when the victim approached he would swing the knife in his direction. In cross-examination he admitted he had also advanced on the victim at times. He claimed no recall of making contact with the knife. He said even at the time, he did not know what caused the victim to stop attacking him. If it were his knife that caused the stab wounds then it was an accident.
The appellant agreed that at all times Sennis was trying to get the victim to leave and that Sennis, MacLeod and McGinniss were not fighting. However, he said he was shocked and scared throughout the incident and in his mind the attack never stopped. He was always trying only to defend himself. There was no opportunity during the incident to retreat because the victim kept coming at them.
Directions on self-defence
The complaints arising from the judge’s directions on self-defence have three facets. It is said that the judge wrongly introduced the concept of proportionality, whereas legislation governing the situation did not require it. Then it is said that the direction wrongly omitted mention of relevant psychological evidence bearing on the appellant’s mental functioning. Finally it is argued that the directions set too high a bar in relating the availability of the defence to the alternative verdict of manslaughter. I deal with each matter in turn.
It was common ground that in entering Lane’s house, uninvited, the victim and his companions had committed a “home invasion”, defined in s 15C Criminal Law Consolidation Act 1935 as a serious criminal trespass committed in a place of residence. If the jury were so satisfied on the balance of probabilities then under that provision the appellant could be entitled to the benefit of a defence of self-defence, notwithstanding that his conduct might not be reasonably proportionate to the threat faced by him. The relevant provisions are as follows:
15. (1) It is a defence to a charge of an offence if –
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if –
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts –
(a)in self defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)However, if a person –
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproved the defence beyond reasonable doubt.
…
15C.(1) This section applies where –
(a)a relevant defence would have been available to the defendant if the defendant’s conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the “perceived threat”); and
(b)the victim was not a police officer acting in the course of his or her duties.
(2)In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant’s conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that –
(a)the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b)the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c)the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
In introducing her directions on self-defence as it related to murder, the judge explained the nature of the test in the usual case, explaining first the genuine belief stipulated by s 15C(1)(a) and then the reasonable proportionality described in s 15(1)(b). The judge went on to direct in terms of s 15C.
It was accepted on both sides that the requirement of subsection 15C(1)(b) was met and that the appellant was able to satisfy the requirements of section 15(2)(a), (b) and (c).
The judge instructed the jury on those requirements. She told the jury that if satisfied of those matters it need only consider the first limb of self-defence, being that set out in s 15(1)(a). The judge then gave the following directions.
That first stage of the test for self-defence is concerned with the issue of whether the accused held a genuine belief at the relevant time that his actions were necessary and reasonable to defend himself or another, namely Mr Lane.
[Directions as to onus of proof.]
So just to summarise, for all practical purposes, if you accept on the balance of probabilities that the accused genuinely believed that [the victim] was committing a home invasion, or had just committed one, and if you accept that the accused had not engaged in any criminal misconduct himself that might have given rise to the threat, and if you accept that his mental faculties were not substantially affected by alcohol and drugs – all of those three things being on the balance of probabilities only – then for all practical purposes you only have to consider whether at the relevant time, which is the time when the accused stabbed [the victim], if that is what you find, that he genuinely believed that his actions, if you find they were his actions, in deliberately stabbing [the victim] three times with the requisite intent, were both necessary and reasonable to defend himself and Mr Lane. [emphasis added]
Counsel’s first argument focussed on the words italicised in the above passage. It was suggested that but for those words the passage was correct. Counsel contended that the introduction of the words “three times” had the effect of inviting the jury’s attention to an objective assessment of the extent to which the appellant’s actions could be seen as reasonably proportionate to the threat.

I cannot think that the judge made any such error. The fact is that the first limb of the definition of self-defence does import, in a limited way, the concept of proportionality. Plainly, an accused’s genuine belief must extend to the necessity to employ force and to the degree of force he uses. Therefore, the appellant’s genuine belief had to encompass the whole of his conduct, being all three woundings. Nothing in the words chosen by the judge to express this requirement was apt to imply a further requirement of objective proportionality.
The second aspect of ground 1 asserts that the judge failed to relate the directions on self-defence to the facts of the case, including evidence by a psychologist, Dr Wood, regarding the impact upon the appellant of his “early stage” multiple sclerosis. In summary, that evidence was that the disease slows a person’s ability to deal with issues rapidly, slows their impulsivity and impairs thinking. The appellant was not diagnosed with the disease until May 2006, six months after the incident. As to whether he was suffering from it in some degree as at the date of the offence, the expert witness said that he could not say it was likely, but would not be surprised if it were so.
In the course of her summary of the evidence, the judge referred to the evidence of Dr Wood. The judge recapitulated the sequence of MRI scans upon which the diagnosis primarily rested. She referred to Dr Wood’s opinion that the disease might have been present in the appellant’s brain at the time of the stabbing. She reminded the jury that, if so, it could well have had an impact on the appellant’s insight, impulsivity and his ability to react. She summarised by saying that the evidence was that the appellant was functioning intellectually well below the average for an eighteen year old. Then, later in the course of her quite extensive summary of the defence address, the judge referred to the matter again. She reminded the jury of counsel’s submission that when assessing the appellant’s state of mind it should bear in mind that the disease might have been affecting him. In the passages which followed the judge reiterated counsel’s references to other pressures which were upon the appellant in the minutes leading up to the stabbing.
It is true that her Honour did not lay before the jury a catalogue of factors which might be borne in mind in assessing the critical issue of the appellant’s state of mind at the time of the woundings. However, in a case such as this, where the essential matters for decision were starkly presented, I do not consider that anything additional was required. Apart from an account of the evidence given in the case, and of counsel’s addresses, the judge also described each of the prosecution and defence cases in summary form and in the case of the latter, referred to the essential parts of the appellant’s defence and the importance of the appellant’s state of mind. She emphasised the need to consider whether the accused might have genuinely believed that it was necessary and reasonable to arm himself and to swing the knife at the victim, having regard to the way the incident erupted and the urgency of it.
I do not think that more was required from the judge in the circumstances of the case.
The next aspect of this ground, as developed in argument, effectively complained of the way in which the actus reus of the alternative verdict of manslaughter was framed.
The judge began her directions on a Friday morning. She covered the law in a period of a bit over an hour. The jury were then asked to return on the following Monday. On the Monday morning when the court resumed the judge summarised her directions on the law.
In her initial directions the judge instructed the jury that there was only one path which could lead to consideration of the alternative. She told the jury it would only arise if the jury was satisfied that the appellant deliberately and unlawfully stabbed the victim, but was not satisfied that he did so with the intention required for murder. The judge said this:
Now, that leads me to a discussion of the alternative verdict that may arise for your consideration in this trial and that is the verdict of manslaughter. It will only arise for your consideration if you are satisfied beyond reasonable doubt that it was the accused who consciously and deliberately stabbed Mr Egan, but you are not satisfied beyond reasonable doubt that at the time he did the stabbing he had the necessary intent to kill or cause grievous bodily harm, and you are satisfied beyond reasonable doubt that the accused did not hold a genuine belief that his actions were necessary and reasonable to defend himself or Mr Lane.
The judge then went on to give the jury the elements of manslaughter by unlawful and dangerous act.
On the Monday morning the judge gave these instructions on manslaughter.
The alternative verdict of manslaughter by an unlawful and dangerous act, I remind you, may arise in this way. If you are satisfied beyond reasonable doubt of the first, second and fourth elements of the crime of murder, namely, you are satisfied beyond reasonable doubt that the accused did deliberately stab Mr Egan and at the time when he did deliberately stab Mr Egan he did not have a genuine belief that it was necessary and reasonable to deliberately stab Mr Egan for any defensive purpose, but you are not satisfied that at that time he had the necessary intention either to kill or cause grievous bodily harm, then and only then would you go on to consider this alternative verdict of manslaughter by an unlawful and dangerous act. I repeat: if there is a reasonable possibility that the accused held a genuine belief that it was both necessary and reasonable to deliberately stab Mr Egan for the purpose of defending himself or Mr Lane, then he cannot be guilty of either murder or manslaughter.
Counsel contended that the relevant act for the alternative offence should have been the “waving of the knife”, rather than the infliction of the three wounds. Then, it was said, consideration of self-defence would have focussed on that act and would have been more difficult for the prosecution to exclude.
It is important to bear in mind that had the jury considered the appellant’s account to be reasonably possible, it would not have convicted him of either murder or manslaughter. That is because he denied deliberately stabbing the victim. As is evident from the directions set out above, in the way in which the judge directed the jury, the first three elements of murder and manslaughter were essentially common to each offence.
There will be cases in which the factual basis for consideration of the issue of self-defence might stand differently in respect of a charge of murder and of its alternative, manslaughter. That is because the jury might not be satisfied that the accused person deliberately performed the act on which the murder charge is based, or, though deliberately performing the act, did not intend its consequences. In some cases the prosecution might have what is in the nature of a fall-back position, in which it could suggest that even if murder was not proved, the conduct causing death was both unlawful and dangerous, or was criminally negligent, so as to form a basis for a manslaughter conviction. If the conduct relied upon for this purpose was something less than that relied upon for murder (in the sense of a preparatory act) then the issue of self-defence would have to be framed in corresponding terms. It would then be easier for the accused to make out that defence.
R v Bednikov (1997) 193 LSJS 254 was such a case. Bednikov was charged with two counts of murder arising from an incident in Clarendon Street, Adelaide. Earlier aggression between two groups of young men led to a confrontation in which two men were shot with a pistol by Bednikov, each of them in the head at close range. In relation to the first charge, where the jury convicted of manslaughter only, the accused admitted deliberately firing the pistol, but said that he intended it to frighten, but not hit, the victim. The judge left to the jury the alternative of manslaughter by unlawful and dangerous act. For that charge, the judge characterised the relevant act as the production and pointing of the pistol. (In view of the accused’s admission of a deliberate firing it is not clear to me why it was not characterised as the deliberate discharge of it, though without intention to hit the victim.)
In separate judgments this court held that in directing on the alternative the judge was in error in failing to confine the requirements of self-defence to the mere production and pointing of the weapon, as opposed to the shooting of it. Thus the test for self-defence had erroneously been made too demanding so far as manslaughter was concerned.
There are two reasons why the principle underlying that case does not avail the appellant. First, as seen, the alternative verdict here was left on the basis of the same actus reus as that for murder, namely deliberate stabbings. If the jury was not satisfied of the deliberation, then the appellant stood to be acquitted outright. Had the act relevant for manslaughter been defined in terms of the conduct immediately prior to the (presumably first) stabbing, then the directions on self-defence for manslaughter must also have focussed on that conduct. But the appellant can hardly complain that the scope for a verdict of guilty of manslaughter was confined in this way and the scope for a complete acquittal commensurately enlarged.
However, even if the judge had chosen to sum up as counsel now suggests was appropriate, that basis for conviction would have been in addition to, and not in substitution for the directions actually given. (And that would have been pointless.) Remembering that the victim suffered three wounds, events overtook the presentation of the knife and the first wound. Accordingly, even had the jury found that the initial waving of the knife was defensible, it would still have convicted of manslaughter on the basis that the deliberate stabbings which followed were not. In this regard the essential difference between this case and Bednikov is that there the jury were invited to consider manslaughter even if they were not satisfied that the victims’ headwounds were deliberately inflicted. Here, the judge directed the jury to acquit if deliberate wounds were not proved.
Secondly, it seems to me that it would be difficult to find that in circumstances where three significant wounds were inflicted, the “waving of the knife” was a substantial cause of the victim’s death.
Unlike here, in Bednikov there was a clear nexus between the conduct left as a basis for manslaughter and the act causing death. In cases where the mere presentation of a weapon is identified as the actus reus of manslaughter, close attention might need to be given to the issue of causation. Where the weapon under consideration was a knife, as opposed to a firearm, this issue might need particular care. Indeed, in this case, I question whether the judge would have been correct to have given the directions now sought. Not only would leaving a dual factual basis for manslaughter have been confusing to the jury, but there is a real question whether the jury could properly have found that the “waving of the knife” prior to the stabbings amounted to a substantial cause of the victim’s death.
Even further, at some point the preparatory conduct becomes so remote from the charged conduct as to amount to a different transaction and therefore not a true alternative. (See Benboltv The Queen (1993) 60 SASR 7; R v Matthews (2005) 91 SASR 196.) For all these reasons the first ground is not made out.
Decision to leave manslaughter
Notwithstanding the nature of the first ground of appeal, the second ground complains of the decision of the judge to leave to the jury the alternative verdict of manslaughter at all. Counsel’s complaint upon the appeal was consistent with his position taken during the trial, that is, that no alternative verdict should be left.
Counsel argued that there was no proper factual basis upon which a verdict of manslaughter could be returned and in those circumstances to leave the alternative implicitly invited the jury to compromise on that verdict where it would otherwise have wholly acquitted the appellant. He relied on Mraz v The Queen (1955) 93 CLR 493. There the trial judge was found to have erroneously left the alternative of manslaughter, in circumstances where the murder charge was based on the felony murder rule and where the case was fought as one of murder or nothing. The Court of Criminal Appeal (NSW) applied the proviso and allowed the conviction to stand. However, in the High Court the majority quashed the conviction, holding (at 506) that the appellant “was entitled to have the case put to the jury as one of murder or nothing and to have the various issues of fact considered in relation to the graver charge.” It was said (at 507) that the “strong tendency to shrink” from a verdict carrying with it the death sentence amounted to one of the “realities of the matter” and that in the absence of the manslaughter alternative the jury’s decision might have been to acquit.
In Gilbert v The Queen (2000) 201 CLR 414, 421 Gleeson CJ and Gummow J, forming part of the majority, spoke of one of the contemporary realities of jury deliberations being that a consideration for the relatives of a victim might introduce pressure upon a jury to convict of manslaughter, rather than to acquit, if given the opportunity. This, then, was the principle underpinning counsel’s complaint. For the reasons which follow I have concluded that the judge correctly left the manslaughter alternative. Therefore the issue of application of the proviso does not arise.
In Wilson v The Queen (1992) 174 CLR 313 the High Court restated the elements of manslaughter by unlawful and dangerous act. The requirements are that the act causing death (willed and not accidental) must be both unlawful and dangerous in the sense that it carries with it an appreciable risk of serious injury: Wilson at 328-333. The test is an objective one.
Counsel’s argument against manslaughter being left on this basis was that there was really no room for a conclusion in such terms. It was said that if the jury found that the injuries were deliberately inflicted, then, having regard to the fact that the knife used was a lethal weapon and was used against the victim three times, the jury would inevitably conclude that there was at least an intention to cause grievous bodily harm. If that were so, then given the jury’s rejection of self-defence, the verdict would necessarily be one of murder.
Viewing the argument logically it has some attraction. However, it was for the jury to characterise the manner in which the knife was used against the victim. Had the victim been standing still while stabbed, in effect presenting a clear target, the argument would have had some force. But that was very far from the picture presented by the observers and confirmed by the pathologist’s evidence. The different sites and angles of the stab wounds, together with the eyewitness accounts, demonstrate that the victim was continuing to move whilst the two men alternately grappled, advanced at each other and punched or jabbed at each other. The scene was confusing and frightening. It was not clear to at least some of the observers how or where the appellant stabbed the victim. Moreover, on any view, the events occurred within a short time period; no more than ten minutes according to one witness and, on the appellant’s evidence, “only a few minutes”. The greater the pressure on the appellant and the less time he had to reflect on the situation, the more inclined the jury would be to see his actions as impulsive and instinctive rather than calculated.
In all the circumstances, and bearing in mind the jury’s potential difficulty in drawing conclusions about the manner in which the wounds were inflicted, it was appropriate to leave the alternative verdict. In my view criticism could justly have been levelled at the judge had she determined against that course. This ground of appeal is not made out.
Admissibility of the deceased’s statements
The third ground of appeal complains that the judge erred in allowing the prosecution to lead evidence of certain statements made by the victim during the incident, but prior to his stabbing. The appellant further argues that the judge failed to adequately direct the jury as to the permissible use of this material.
The evidence complained of was led from the witness McGinniss, one of the friends of the victim. McGinniss gave evidence that towards the end of the incident, the victim was standing next to their car with his back to one of the doors and the appellant was facing him. McGinniss said he was telling his friends to get into the car so they could leave, to which the victim responded, “I’m not turning my back on this guy … because he’s going to stab me”. The appellant then kicked the victim so that he fell back into the car, but the victim regained his balance and the confrontation between them continued, moving along the street to the junction, where it appears he was later stabbed.
At trial, the statement of the victim was objected to on the basis that it was hearsay and irrelevant, being evidence only of the victim’s state of mind at that time. However, the judge ruled that the statement was part of the events and that the victim’s state of mind including his apparent apprehension that he might be stabbed was potentially relevant. Further, it was open on the evidence to conclude that the appellant heard the utterance and did not reply. Her Honour also found it formed part of the res gestae of the incident.
The appellant now argues that to the extent that the statement reveals the victim’s state of mind, it is irrelevant. He submits that the appellant’s state of mind was the central issue and the victim’s belief about it was not relevant and could not be used to establish what the appellant was thinking. Counsel submits that the statement was not part of the res gestae as the incident could be broken up into various stages – the statement being made at an earlier stage than the stabbing.
Counsel further argues that it would be unfair to treat the statement as having been heard by the appellant and to draw any inferences as to his state of mind from his reaction to it. He submits that there was insufficient evidence to establish that the accused did hear the statement but even if he did hear it, his subsequent act of kicking the victim into the car was in direct contradiction to the state of mind the statement attributes to him. He also says because the appellant was never asked by counsel if he heard the statement, it would be unfair to assume that he did and then draw inferences as to his state of mind.
The respondent submits that the evidence was admissible, along with other statements by the victim around the same time, to prove that the victim was aware that the appellant had a knife and that he was wary of it. If the appellant heard the statement, which he put was “self evident”, then it becomes relevant to whether the appellant believed the stabbing was necessary. He further argues that it was the product of the force of contemporaneous events and therefore part of the res gestae of the incident.
Counsel’s submissions on the admissibility of this evidence are apt to illustrate the various uses which could be made of it.
In the first place it was capable of proving something of the victim’s state of mind. For instance, it showed that he was aware that the appellant had a knife and (possibly) believed that it would be used. If genuine, it might explain why he was refusing to withdraw from the appellant. On the other hand, it might have been an excuse to his friends for continuing his engagement with the appellant. It was also capable of showing the extent of his aggression: that despite his friends’ urging and despite the danger, he chose not to retreat.

In my view none of these uses involves any element of hearsay. The uses have nothing to do with the truth of the statement. Therefore, under the classic formulation of the hearsay rule in Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970 (PC) the rule is not brought into play.
However, the statement does contain an assertive component, namely what (the victim thought) the appellant would do in certain circumstances. This really amounts to a statement of opinion or forecast. However, as Andrew Ligertwood persuasively argues in Australian Evidence (4^th ed, Butterworths, 2004) at [8.11] and [8.35]-[8.42] out of court statements should be seen in point of principle to attract the operation of the hearsay rule only where they are “assertive narratives”. It is most satisfactory, both in theory and in terms of interpreting the authorities, to apply the exclusionary rule narrowly in this way, at least in part because then the ambit of the exceptions to it, notably the res gestae rule, need not be artificially enlarged: [8.35]. I conclude that the statement was not rendered inadmissible by operation of the hearsay rule.
The appellant’s further argument that the victim’s state of mind had no relevance, or very limited relevance, might be a stronger one. But it fails, in my view, because the statement was made not very long before the stabbings and therefore was likely to provide useful evidence as to the victim’s motivations and behaviour and the inter-related actions of all the participants.
However I also consider that the statement was admissible for purposes wider than merely revealing the victim’s thinking or attitude. It was also part of the victim’s conduct and in that sense part of the event or transaction. In what might be fairly strict circumstances, that would justify its admission: Cross on Evidence (7^th Australian ed, Butterworths, 2004) at [31,100]. But as the learned author observes in the same passages, the “crucial question” is the effect of the utterance on others. The appellant was in a position to hear it and apparently responded to it – or to the situation generally – by kicking the victim, causing him to fall into the car. His presence meant that he was able to contest McGinniss’ account of the utterance if he disputed it. In fact McGinniss was not cross-examined to suggest it was not said. (Curiously, in light of the emphasis now placed on the statement, the appellant was not asked about it during his evidence.) If he heard it, he might have judged it as provocative, or as a dissembling statement by the victim. Or hearing it, he could have stood back to allow the victim to enter the car without fear of danger. All these matters were for the jury to consider if they so chose. But to exclude the statement would have been to deprive the jury of potentially helpful material.
Consequently, I do not think it is necessary to descend to a discussion of the res gestae rule. In some circumstances statements which would otherwise be treated as hearsay and inadmissible are admitted because of their spontaneity and intrinsic reliability. If I am wrong in my analysis to this point and if the statement is indeed hearsay if used in the ways enumerated above, then resort to the res gestae rule might be had.
However, in my view there was one use to which the evidence should not have been put. The jury, even if treating the victim’s opinion of the appellant’s intentions as genuine, should not have placed reliance on it for the purpose of determining the appellant’s state of mind. In other words they should not have reasoned that the victim’s assessment of the appellant’s intentions was likely to be astute and then have used it against the appellant.
Logically, the victim’s opinion could not have been used for such a purpose and I think the jury would have recognised as much. But I consider the learned trial judge should have warned the jury not to reason in that way.
Nevertheless for the following reasons I do not consider that a miscarriage of justice could have resulted. First, the victim was demonstrated to be unreliable immediately after the utterance, because having been kicked into the car he straight away re-emerged and persisted in the confrontation. It was apparent then that his true reason for not desisting earlier was not fear of being stabbed in the back, but his own aggression. Then, as earlier set out, the victim’s statement and the stabbings were separate both in time and place. Both men moved away from the car after the kick and events developed further. During the intervening period – which I acknowledge must have been short – the victim continued to bait the appellant. McGinniss described the victim swearing at the appellant, abusing him for needing a knife and telling him to get rid of it. Another of the soldiers, MacLeod, gave similar evidence.
Next, neither the prosecutor nor the judge suggested the victim’s opinion or forecast should be used to throw light on the appellant’s actual state of mind. In addition, neither counsel sought any direction on the statement, even though the judge reminded the jury of it in her summary of the evidence. Either the possibility of using it in the way now censured did not occur to counsel, or the statement itself was not seen as being of much significance. Added to that, the statement potentially assisted the appellant as much as it harmed him.
My conclusion is, therefore, that the statement was clearly admissible for a number of purposes. There was one use to which it should not have been put and it would have been better had the judge warned against that use. But in all the circumstances failure to so warn was a blemish only, and could not have led to a miscarriage of justice.
Contention that the verdict was unreasonable
The final ground complains that the “verdict is unsafe and unsatisfactory and cannot be supported having regard to the evidence”. The statutory base for such a ground is s 353(1) Criminal Law Consolidation Act 1935 which relevantly provides:
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence … or that on any ground there was a miscarriage of justice … .
The particulars of this ground include all the matters raised in the earlier three grounds, with which I have already dealt. With the exception of that part of ground 3 which complains of the failure to direct on the impermissible use of the victim’s statement prior to the stabbings, I have found that there is no substance in the complaints. Therefore those facets of this ground fall away.
The appellant additionally argues that the learned trial judge failed to direct the jury as to recklessness as a possible form of the mental element required for murder in the course of outlining the elements of murder. No oral argument was addressed in support of this complaint. It is hard to see how the judge’s decision not to direct on recklessness could have disadvantaged the appellant having regard to the acquittal for murder. Moreover, in circumstances where there were three wounds, each directly inflicted by the appellant, it would, in my view, have been ill advised to have directed in such a way. (See the discussion of King CJ in R v Cooke (1985) 39 SASR 225 at 236-237.)
A more substantial argument was put to the effect that the verdict was unreasonable and could not be supported having regard to the evidence. It was submitted that the evidence indicated that from the time the victim left MacLeod’s car he was bent upon attacking the appellant and that he did so repeatedly and at various locations from Lane’s front door and hallway to the front garden and then in the junction. It was put that after the appellant kicked the victim into the car, the victim immediately rebounded and continued the attack. In those circumstances it was said that it was not open to the jury to reject self-defence, especially in the less demanding way in which it applied in this case.
I have read the evidence of the appellant, Lane and the other participants. It is likely that the jury would have felt a good deal of sympathy for the appellant in circumstances where he did nothing to provoke the aggression shown to him by the deceased and Ellingham. Nonetheless, the jury was entitled to take the view that from an early stage the victim’s companions were trying to extricate the victim from engagement with the appellant. That was so after he emerged from Lane’s house and it was so after Ellingham received his wound. There were times when the appellant could have retreated. That the victim received three stab wounds at the tail end of the incident when it seemed there was realisation of Ellingham’s injured state and that all the victim’s party would soon depart suggested aggression rather than defence. It laid a basis for a finding that at some point after the victim’s re-emergence from the car after being kicked, the appellant turned what had been an attack on him requiring, the use of some force in self-defence, into an excuse for retaliation. His kicks at Ellingham lying injured on the ground might have promoted that interpretation. If the jury took that view then its conviction of the appellant for manslaughter, only, is explicable either on the basis that it doubted that the appellant formed an intention to kill or cause grievous bodily harm, or that the verdict was a merciful one. I consider that either decision was well open to the jury on the evidence.
Conclusion
Only one complaint arising from the rulings and summing up of the learned trial judge has been found to be made out. That was the omission to give a direction confining the use to be made of an utterance of the victim. I have found that is not a matter which could have had an impact on the outcome of the trial.
An independent analysis of the evidence given in the trial leads me to conclude that the verdict is not unreasonable and is supported by the evidence.
I would dismiss the appeal.
WHITE J: The background to this appeal is set out in the reasons of Vanstone J and it is not necessary to repeat it.
The appeal was conducted on the basis that the jury returned the verdict of manslaughter because it was satisfied that the conduct of the appellant, resulting in the victim’s death, was unlawful and dangerous. In my opinion, that is an appropriate understanding of the jury verdict. The possibility that the jury concluded that the appellant, although acting in self-defence, had used excessive force[2] and returned a verdict of guilty to manslaughter on that basis can be put to one side. That is because of s 15C of the CLCA. Section 15C provides that in certain defined circumstances, an accused is entitled to the benefit of a defence of self-defence even though, considered objectively, his or her conduct was not reasonably proportionate to the perceived threat. It was not disputed at trial that the defined circumstances existed in this case. Accordingly, unless the jury had been satisfied that the possibility that the appellant had genuinely believed the stabbing of the victim to be necessary and reasonable for his own defence had been disproved, it would have returned verdicts of acquittal of both murder and the alternative count of manslaughter, whatever view it took about the proportionality of the appellant’s conduct. The verdicts indicate that the jury was satisfied that the appellant did not genuinely believe the stabbing to be necessary and reasonable for his own defence and, hence, that the defence of self-defence was not available. The jury was not directed at all about manslaughter by criminal negligence. That being so, the verdict is explicable only on the basis of manslaughter by unlawful and dangerous act.
[2] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 15(2).
The appellant argued four grounds in support of his appeal against the conviction of manslaughter. One of the grounds involved three separate sub‑grounds. The grounds are:
1.that the alternative verdict of manslaughter should not have been left to the jury at all;
2.that, if it was appropriate for the alternative verdict to have been left, the judge’s directions concerning self-defence and manslaughter were deficient in that:
(a)     the judge introduced an element of reasonable proportionality when instructing the jury about the appellant’s subjective belief;
(b)    the judge did not direct the jury sufficiently in relation to self-defence and manslaughter. It was submitted that the judge had overlooked that the relevant conduct relied upon for the defence of manslaughter by unlawful and dangerous act was different from the conduct relied upon for the offence of murder;
(c)    the judge did not relate the directions with respect to self-defence sufficiently to the facts, in particular, to the evidence of a neuro-psychologist, Dr Wood;
3.that the judge wrongly allowed evidence of a statement by the deceased during the fracas to be adduced at trial. In the alternative, even if the evidence was properly admitted, the judge failed to give proper directions with respect to the use which the jury could make of that evidence;
4.that the verdict is unsafe and unsatisfactory.
Should Manslaughter have been left as an Alternative Verdict?
The judge was under a duty to leave to the jury any alternative verdict for which there was a reasonable basis in the evidence, provided that doing so did not result in a denial of procedural fairness to the appellant.[3]
[3] R v Murphy (1988) 52 SASR 186 at 195-97 per Cox J; R v Benbolt (1993) 60 SASR 7.
The appellant submitted, as he had at trial, that manslaughter was not a viable alternative verdict and in this case should not have been left to the jury.
The foundation of the appellant’s submission is the High Court decision in R v Wilson[4] concerning manslaughter by unlawful and dangerous act. In discussing this form of manslaughter, the majority (Mason CJ, Toohey, Gaudron and McHugh JJ) said:
Manslaughter by an unlawful and dangerous act … is a relevant and appropriate category of manslaughter. Manslaughter by the intentional infliction of some harm answers neither description. It continues the rigour of the early common law and ought to play no part in contemporary law. This approach leaves two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence. There have been suggestions that these two categories should be replaced by one. But, as the law stands, there are differences between them. In the case of manslaughter by criminal negligence, it is unnecessary to prove that the accused’s act was unlawful. And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is “a high risk that death or grievous bodily harm would follow”.[5] (Citations omitted) (Emphasis added)
Earlier, the majority had rejected a formulation that the unlawful and dangerous act carry with it an appreciable risk of really serious injury. The majority said:
However, the utility of a qualifier such as “really” is very questionable. “Serious” and “really serious” may have quite different connotations in some situations. While the Holzer direction does not seem to have given rise to difficulties in this regard, the emphasis on really serious injury brings manslaughter perilously close to murder in this respect. The distinction between the two may easily be blurred in the minds of the jury. It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury. A direction in those terms gives adequate recognition to the seriousness of manslaughter and to respect for human life, while preserving a clear distinction from murder.[6] (Citation omitted)
[4] (1992) 174 CLR 313.
[5] Ibid at 333.
[6] Ibid at 333.
Although the minority in Wilson, Brennan, Deane and Dawson JJ, proposed a different formulation, they too emphasised the need to distinguish murder from manslaughter. The minority said:
There is a significant difference between, on the one hand, an act involving the risk of some harm, albeit not serious harm, and, on the other hand, an act involving an appreciable risk of really serious injury. The latter involves a risk of grievous bodily harm (to use the older, but perhaps more telling, expression) which, if it were intended, would support a conviction of murder rather than manslaughter.[7]
[7] Ibid at 336.
Focussing on these passages, the appellant submitted that his assault on the victim in this case could not reasonably be described as carrying with it an appreciable risk of only serious injury. Counsel submitted that:
a repeated assault with a deadly weapon … inflicting two stab wounds to a victim’s upper chest [could] only be properly characterised, both factually and legally, as an act involving an appreciable risk of death or, at the very least, grievous bodily harm. (Emphasis added)
In effect, the submission was that the appellant’s conduct in this case involved much more than an appreciable risk of “serious harm”, thereby taking it outside the range of conduct capable of constituting manslaughter by unlawful and dangerous act. Put slightly differently, the submission was that the majority judgment in Wilson establishes that a jury, when considering from the standpoint of a reasonable person whether the act of the accused was dangerous, had to be satisfied that it carried with it an appreciable risk of serious injury, no more and no less. Leaving aside for the moment the onus of proof, satisfaction by the jury that there was a risk of injury which was more than serious would require a not guilty verdict, just as would satisfaction that the risk was only of some injury, falling short of serious injury. If the prosecution evidence, on any reasonable view, could only be understood as establishing that the risk was of injury which was more than serious, manslaughter by unlawful and dangerous act could not be made out, and should not be left to the jury.
The appellant did not cite any authority since Wilson to support his submission and none has been located. So far as I can tell, the point has not been raised previously.
In my opinion, this submission involves a misunderstanding of the majority judgment in Wilson. On my reading, the passages in Wilson to which the appellant referred were a statement of the minimum necessary to be proved by the prosecution in order to prove manslaughter by unlawful and dangerous act. That minimum requires proof of an act carrying with it an appreciable risk of serious injury. The majority reasons do not indicate that an act involving a risk of greater injury could not be sufficient for the offence, only that an act carrying with it a risk of less than serious injury would not be sufficient. That is evident from an earlier passage in the majority reasons in which the question for determination in Wilson was narrowed to whether it was enough that a reasonable person in the accused’s position appreciated the risk of some injury to the deceased from the act.[8]
[8] Ibid at 327.
I consider it probable that if the majority intended that a jury, instructed in the way which it had outlined, should be able to return a verdict of manslaughter by unlawful and dangerous act only if satisfied that the risk was that of serious injury and no more, they would have expressed themselves quite differently. It is not readily to be supposed that the majority intended that prosecution evidence adduced to establish the existence of an appreciable risk of serious injury, but which went further, should have the effect of defeating altogether the prosecution case.

If the appellant’s submission is correct, it would add complexity to the directions to be given to the jury. A trial judge would have to direct a jury that it had to consider whether, from the standpoint of a reasonable person, the accused’s conduct carried with it a risk of more than some harm, at least serious harm but less than grievous or really serious harm. Additional complexity, if not artificiality, of this kind is not desirable.
Finally, the appellant’s submission, if accepted, would produce the paradox that it would be in the interests of an accused charged only with manslaughter by unlawful and dangerous act, to have a jury accept that the risk of injury created by his or her conduct was much more serious than alleged by the prosecution. Unless the prosecution excluded a more serious characterisation of the risk, the accused would have a complete defence to a charge of this kind. It is difficult to suppose that the majority in Wilson contemplated the prospect of accused persons arguing before a jury that their conduct involved risks which were much more serious than alleged by the prosecution. I note in passing that in the present case Mr Vadasz, for the appellant, did not make a submission to that effect to the jury, nor did he ask for a direction by the judge to the jury in those terms.
In my opinion, the first ground of appeal fails.
Did the Judge’s Self-defence Directions Incorporate an Element of Proportionality/Reasonableness into the Element Concerning the Accused’s Subjective Belief?
The portions of s 15 and s 15C of the CLCA relevant to the appeal are set out in the reasons of Vanstone J.
The first element of the defence of self-defence contained in s 15 is a genuine belief by the accused that the conduct to which the charge relates was necessary and reasonable for a defensive purpose.[9] That is, the prosecution must negative, beyond reasonable doubt, that the accused had such a genuine belief. Then the prosecution must negative, beyond reasonable doubt, that the accused’s conduct was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that he or she genuinely believed to exist. Even if the conduct was not reasonably proportionate, an accused will still have a defence if he or she establishes, on the balance of probabilities, that the conduct in question occurred in the circumstances of a home invasion specified in s 15C.
[9] CLCA s 15(1).
Section 15(1)(a) involves an assessment of an accused person’s subjective belief as to what was necessary and reasonable. On the other hand, s 15(1)(b) requires a consideration from an objective standpoint (but in the circumstances as the accused genuinely believed them to be) of the proportionality of the accused’s response to the threat.
The appellant’s submission is that in directing the jury as to the subjective element (s 15(1)(a)), the judge introduced inappropriately an element of proportionality. The passage of which the appellant complains appears in the judge’s summary of her directions on self-defence. The judge told the jury that, if satisfied that the circumstances concerning home invasion specified in s 15C of the CLCA existed,
… then for all practical purposes you only have to consider whether at the relevant time, which is the time when the accused stabbed [the victim], if that is what you find, then he genuinely believed that his actions, if you find they were his actions, in deliberately stabbing [the victim] three times with the requisite intent, whether necessary and reasonable to defend himself and Mr Lane. (Emphasis added)
It was the words “three times” which the appellant submitted introduced the notion of proportionality. It was not altogether easy to follow the appellant’s submission in this respect. However, as I understood the submission, it was that the jury may have understood the judge’s mention of “three times” as emphasising the extent of the appellant’s conduct, ie, as though it was equivalent to “as many as three times”.
Whether that understanding be correct or incorrect, my opinion is that this submission should be rejected. I am unable to see how the reference to the three acts of stabbing introduced notions of proportionality. It was simply a short-hand reference to the conduct which the jury had to address in its consideration of the appellant’s subjective belief. I cannot detect a relevant difference for present purposes between a statement by the judge about the appellant’s actions “in deliberately stabbing [the victim] three times with the requisite intent”, on the one hand, and “in deliberately stabbing [the victim] with the requisite intent”, on the other. The appellant accepted that a statement of the latter kind would have been acceptable. In this case the jury knew that there had been three stabbings. The appellant acknowledged that the wounds had been inflicted in a very short space of time and in a flurry of movement. There was no need for the judge to direct the jury separately in relation to each stabbing.
The direction of which the appellant complains was part of the judge’s summary on the topic of self-defence. Earlier, the judge had told the jury that it had to consider whether the appellant had a genuine belief that his “actions” were necessary and reasonable to defend himself. I consider that the jury would have understood the judge’s reference to three stabbings as simply another way of referring to the actions which they had to consider in relation to self-defence.
I note that Mr Vadasz, a trial counsel of some experience, did not seek any re‑direction in relation to the direction of which the appellant now complains.
In my opinion, this ground of appeal fails.
Manslaughter and Self-defence
The judge told the jury several times during the course of the summing-up that it only had to consider the alternative verdict of manslaughter if it rejected the possibility that the appellant was acting in self-defence. The judge did not direct the jury that self-defence had to be considered separately in relation to manslaughter. The case was left to the jury on the basis that if it rejected self-defence in relation to the charge of murder, it was not necessary for it to consider self-defence again in relation to the alternative verdict of manslaughter.
The appellant submitted that the judge was in error in this respect. The conduct of the accused said to be the unlawful and dangerous act for the purpose of the alternative verdict of manslaughter was different, it was submitted, from that relied upon for the charge of murder. The provisions concerning self-defence in s 15 of the CLCA had to be applied in relation to that different conduct, and the jury should have been directed accordingly.
The appellant submitted that in relation to murder, the question for the jury in applying s 15(1) was whether or not he had genuinely believed that it was necessary and reasonable for his own defence to stab the victim three times. When it came to manslaughter, the question for the jury was whether or not he had genuinely believed that it was necessary and reasonable for his own defence to produce the knife and brandish it in front of the victim.
Mr Vadasz submitted that this Court’s decision in R v Bednikov[10] required that the appellant’s conduct be differentiated in this way. Bednikov was an appeal against convictions for murder and manslaughter. For present purposes, it is only the decision concerning the manslaughter conviction which need be considered. The prosecution case was that the accused had shot V. The defence case raised self-defence. The accused said that V had been shot in the course of a struggle after he (the accused) had produced a loaded and cocked pistol and pointed it at V in an attempt to warn him and his companion off. V had grabbed the arm of the accused in which he was holding the gun. He had then fired the shot. The accused acknowledged that his firing of the pistol was deliberate but said that at the time of doing so, he thought that the pistol was pointed to the sky, and that he had not intended to kill or injure V. His intent was to scare V and his companions away.
[10] (1997) 193 LSJS 254.
Manslaughter in three forms was left for the jury as a possible alternative verdict: as an aspect of the then law applicable to self-defence; provocation; and unlawful and dangerous act. Doyle CJ considered that the appeal should be upheld because of a deficiency in the directions concerning self-defence in relation to manslaughter by unlawful and dangerous act. He held that self-defence in relation to conduct said to amount to an unlawful and dangerous act involved different considerations than does self-defence in relation to a charge of murder. Further, in some shooting cases, what has to be considered is whether the prosecution has excluded as a possibility a genuine belief on the defendant’s part that it was necessary and reasonable to produce a gun and point it at the victim, and not whether the defendant believed that it was necessary and reasonable to fire the gun. Doyle CJ summarised the defendant’s submission in Bednikov on this aspect in the following passages:
The jury might have rejected self-defence at the earlier stage because satisfied that the appellant did not believe that it was necessary and reasonable to fire the pistol. Nevertheless, consistently with that, they might consider that there was a genuine belief that it was necessary and reasonable to produce and to point the pistol. It was therefore argued that, at the factual level, self-defence raised different issues when considered in the context of the charge of murder and when considered in the context of manslaughter by an unlawful and dangerous act. Or, to put it differently, when considering a situation in which the accused fired the pistol with an intention to kill or cause grievous bodily harm, and a situation in which the pistol was fired without any such intention.
The other way of putting the submission is to say that it focussed on the distinction between a belief in relation to the firing of the pistol, and a belief in relation to the mere production and pointing of the pistol.
It is true that when the trial judge related the requirements of self-defence to the facts of the case, he did so in terms of a belief that it was necessary and reasonable both to use the pistol and to shoot [the victim]. When dealing with manslaughter by an unlawful and dangerous act, the judge identified the relevant act, rightly in my opinion, as the production and pointing of the pistol at close quarters. For the reasons already explained, he did not include the act of shooting as a feature of the act which had to be identified as an unlawful and dangerous act.
In that context the point was made that the jury may have been led to believe that to exclude self-defence it was necessary for the prosecution only to satisfy the jury that there was no genuine belief that it was necessary and reasonable to shoot [the victim]. The jury may not have understood that in the context of manslaughter by an unlawful and dangerous act the prosecution had to exclude a belief that it was necessary and reasonable to produce and point the pistol.[11] (Emphasis added)
Doyle CJ considered that this submission had some force. He said:
I consider that the trial judge was right to leave manslaughter by an unlawful and dangerous act to the jury. I consider that he was right to say to the jury that it should not be considered unless self-defence was wholly excluded. That was a practical way of explaining things. But, it has to be acknowledged that for the purposes of self-defence the relevant act is differently identified when one is considering an accidental discharge of the pistol as a result of the unlawful and dangerous production of the pistol.[12] (Emphasis added)
[11] Ibid at 261.
[12] Ibid at 261.
Later, Doyle CJ made the more general point that exclusion of self-defence in relation to manslaughter by unlawful and dangerous act involves considerations different from those which arise in relation to shooting with intention to kill or to inflict grievous bodily harm.[13]
[13] Ibid at 262.
It was not necessary for Matheson J, in the view which he took of the case, to address the issue. As I understand his reasons, Olsson J agreed in substance with the reasoning of the Chief Justice.
The appellant submitted that Bednikov indicated that, in a case like the present, the conduct to be considered in relation to the alternative verdict of manslaughter by unlawful and dangerous act is the accused’s conduct in producing a knife and brandishing it about in circumstances in which it may come into contact with the victim, and not the act of stabbing itself.
I do not accept that submission. In Bednikov, the trial judge had identified the relevant act for the purposes of manslaughter by unlawful and dangerous act as the production and pointing of the pistol at close quarters. That shaped the discussion on appeal in relation to this aspect of the matter. It is true that Doyle CJ said that the trial judge had been right to direct the jury in that way. That was in circumstances in which the discharge of the firearm, although deliberate, was said, because of the struggle, to have occurred without the defendant knowing that it was then pointed at the victim and without any intention to kill or harm him. In other words, it was a case of a deliberate discharge of the firearm, but not a deliberate shooting of the victim. It does not follow that in all cases of a broadly similar kind that it is only the antecedent conduct of the appellant which may be considered. There is no reason in principle why a deliberate act of shooting at a victim, or a deliberate stabbing, without an intent to kill or to cause grievous bodily harm, may not, in an appropriate case, be the relevant conduct. In Wilson itself, the conduct of the defendant relied upon for the charge of murder (for which the defendant was acquitted) was also relied upon as the relevant act for the purposes of manslaughter by unlawful and dangerous act. That was a punch to the face. It was not suggested that the conduct which the jury should have been directed to was any conduct antecedent to that punch, such as the approach to the victim, a clenching of the fist or a drawing back of the arm preparatory to delivering the punch. In R v Williamson[14] in which it was held that it was necessary, in considering voluntariness, to distinguish between a blow to the face with knowledge that a knife was in the hand, and a blow to the face without that knowledge, it was nevertheless accepted that either could be an unlawful and dangerous act for the purposes of manslaughter. The question of voluntariness and causation in this case were issues to be determined by the jury. It would have been inappropriate for the judge to have removed the acts of stabbing from their consideration.
[14] [1996] SASC 5954; (1996) 67 SASR 428.
In my opinion, Bednikov suggests two propositions relevant to this case. First, that directions on self-defence must relate to the same conduct said to amount to the unlawful and dangerous act. That is plainly so. If the jury is not satisfied that self-defence has been excluded it cannot ordinarily be satisfied that the relevant act was unlawful. The position is similar to that stated by the Court of Criminal Appeal in Victoria in R v Zikovic.[15]
Clearly self-defence may be raised as an issue in a wide range of circumstances and in relation to a number of different offences. Although in some murder situations it may be appropriate to consider, whether an assault apprehended by an accused person threatened him with death or grievous bodily harm, thereby justifying the causing of death or the intentional infliction of grievous bodily harm, such a consideration would not be relevant to a charge of manslaughter or other less serious offences. In such situations, leaving to one side any question of the unlawful nature of any apprehended attack, it would be for the jury to consider whether the accused reasonably believed that an attack was about to be made upon him or that some threatened violation of or indecent or insulting usage of the accused’s person was about to take place.[16]
[15] (1985) 17 A Crim R 396.
[16] Ibid at 401.
Secondly, in some cases, the exclusion of self-defence in relation to manslaughter by unlawful and dangerous act may involve considerations different from those which arise in relation to an act performed with the intention of killing the victim. When it appears that the conduct resulting, in an immediate sense, in the victim’s death was accidental, the antecedent conduct of the accused such as producing and pointing a gun, or producing and brandishing a knife, may, in an appropriate case, be the relevant conduct for the purposes of manslaughter by unlawful and dangerous act. See the italicised words in the second passage from Bednikov quoted above. The accidental discharge of a gun or a stabbing by reflex action cannot be the relevant act, because such acts lack the quality of voluntariness.[17] But if antecedent acts of producing and pointing a gun, or brandishing a knife, were voluntary, and causative in the relevant sense, they may constitute the act to be considered in relation to manslaughter by unlawful and dangerous act.
[17] Cf R v Falconer (1990) 171 CLR 30; R v Williamson (1996) 67 SASR 428.
When it appears that the conduct in question was not accidental (for example, when a gun is discharged deliberately) but without any intention to harm the victim (for example, simply to frighten him) it is the conduct of the accused in that circumstance which is to be considered. That is to say, the prosecution must prove that in that circumstance the accused did not genuinely believe that the discharge of the gun was necessary and reasonable for a defensive purpose.
In the present case, as noted earlier, the judge told the jury that they would need to consider self-defence only if they were satisfied that the stabbing was deliberate. The judge did not direct the jury about how self-defence was to be considered in the event that it was not satisfied that the stabbing was deliberate, that is, if it could not exclude the possibility that the stabbing was accidental or that any wounding of the deceased at all had been intended.
However, the omission of the judge to do so is not, in my opinion, an error and, in any event, it has not resulted in a miscarriage of justice. In the first place, it is difficult to think that the jury could reasonably have considered that the stabbing in this case had been accidental. The appellant inflicted three stab wounds, the two fatal wounds penetrating the victim’s chest by almost 20cm, and the third by 11cm. The possibility that the two 20cm wounds had occurred accidentally, or that the victim had impaled himself on the appellant’s knife, was so remote as to be able to be disregarded.
But if the jury had considered it reasonably possible that the stabbing was accidental, the effect of the judge’s direction was that, for that reason alone, the jury should have acquitted the appellant of both murder and manslaughter. The jury would not have had to consider manslaughter by unlawful and dangerous act at all. In that circumstance, the omission of the judge to direct on self-defence separately in relation to manslaughter by unlawful and dangerous act has not had any adverse effect. The jury verdict ( in the light of the judge’s directions) indicates that it was satisfied that the appellant’s conduct was deliberate, dangerous and unlawful because it was not carried out in self-defence.
Accordingly, I am satisfied that this ground of appeal is not made out.
Relating the Directions Sufficiently to the Evidence
I agree with the reasons of Vanstone J on this ground and do not wish to add to them.
Admissibility of the Deceased’s Statements

The appellant submits that the witness McGinniss should not have been allowed to give evidence of an incident occurring towards the end of the fracas. The victim was being encouraged to get into the car driven by Senniss. He was close to an open back door of the car, but facing towards the appellant who was close to him. McGinniss said that when the victim was told to get into the car he responded, “I’m not turning my back on this guy because he’s going to stab me”.
The judge rejected an application that this evidence be excluded on the basis that it was irrelevant and hearsay. The appellant repeated on appeal the submissions which had been put to the judge.
In my opinion, the judge’s decision to allow the evidence to be adduced was correct. The evidence was relevant to the assessment of the appellant’s belief as to what was necessary for his own defence. It was open to the jury to conclude that if the appellant heard the statement he would have realised that a retreat by him, allowing the victim the space to enter the car without risk of harm, would probably be sufficient to diffuse the situation. This was a use which did not infringe the hearsay rule. That is to say, the evidence could be led not for the purpose of proving the victim’s state of mind, but rather as proof of matters relevant to the appellant’s state of mind. Whether or not the victim genuinely held the belief that he would be stabbed by the appellant if he turned his back, and whether or not his stated fear was the real reason for his not getting into the car, proof of the words which he spoke could be used by the jury in their assessment of the appellant’s state of mind in the way I have outlined.
I agree with the reasons of Vanstone J about the lack of direction to the jury about the uses to which the evidence could be put. In the view which I take of the appeal, it is not necessary to address this ground further.
Unsafe and Unsatisfactory Verdict
I do not wish to add to the reasons of Vanstone J in relation to this ground.
Conclusion
For the reasons given above I would dismiss the appeal.