R v Kanaan
[2005] NSWCCA 385
•17 November 2005
Reported Decision:
157 A Crim R 238
64 NSWLR 527
New South Wales
Court of Criminal Appeal
CITATION: Regina v Kanaan [2005] NSWCCA 385
HEARING DATE(S): 7-8 February 2005
JUDGMENT DATE:
17 November 2005JUDGMENT OF: Hunt AJA at 1; Buddin J at 1; Hoeben J at 1
DECISION: (1) The appeal against conviction dismissed (2) Leave to appeal against the sentences imposed granted, but the appeal dismissed.
CATCHWORDS: Manslaughter as alternative verdict to murder - whether viable case of manslaughter available on the evidence - whether obligation to leave manslaughter to jury even when not raised by either party and even if a party or both parties object - Gilbert v The Queen (2000) 201 CLR 414, Gillard v The Queen (2003) 202 ALR 202 discussed - where Crown relies on conduct of accused as being inconsistent with innocence and as amounting to an implied admission of guilt - directions fashioned on Regina v Lucas [1981] QB 720 at 724 and Edwards v The Queen (1993) 178 CLR 193 ordinarily required - direction to jury on alibi - Crown must remove or eliminate any reasonable possibility that accused was not at scene of crime.
LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Criminal Appeal RulesCASES CITED: Bullard v The Queen [1957] AC 635
Chamberlain v The Queen (1983) 46 ALR 493
Conway v The Queen (2001) 209 CLR 203
De Jesus v The Queen (1986) 68 ALR 1
Edwards v The Queen (1993) 178 CLR 193
Gallagher v The Queen (1986) 160 CLR 392
Gammage v The Queen (1969) 122 CLR 444
Gilbert v The Queen (2000) 201 CLR 414
Gillard v The Queen (2003) 202 ALR 202
Knight v The Queen (1992) 175 CLR 495
Kural v The Queen (1987) 162 CLR 502
Kwaku Mensah v The King [1946] AC 83
Lawless v The Queen (1979) 142 CLR 659
Mancini v DPP [1942] AC 1
McKenzie v The Queen (1996) 190 CLR 348
Mickelberg v The Queen (1989) 167 CLR 259
Mraz v The Queen (1955) 93 CLR 493
Packett v The King (1937) 58 CLR 190
Pemble v The Queen (1971) 124 CLR 107
Regina v Abou-Chabake (2004) 149 A Crim R 417
Regina v Abusafiah (1991) 25 NSWLR 531
Regina v Beserick (1993) 30 NSWLR 510
Regina v Cameron [1983] 2 NSWLR 66
Regina v Doan (2001) 3 VR 349
Regina v Elfar (2003) 115 A Crim R 64
Regina v Evans & Lewis [1969] VR 858
Regina v Goonan (1993) 60 A Crim R 338
Regina v Heuston (2003) 140 A Crim R 422
Regina v Hitchins & Elliott [1983] 3 NSWLR 318
Regina v Ilic and Sammut (2000) 118 A Crim R 378
Regina v Isaacs (1997) 41 NSWLR 374
Regina v Jackson [1993] 4 SCR 573
Regina v Johns (1999) 110 A Crim R 149
Regina v Kane (2001) 3 VR 542
Regina v Kirkman (1987) 44 SASR 591
Regina v Livingstone (2004) 150 A Crim R 117
Regina v Lucas [1981] QB 720 at 724
Regina v Park [2003] NSWCCA 203
Regina v Pureau (1990) 19 NSWLR 372
Regina v Quinn (1991) 55 A Crim R 435
Regina v Robinson [1999] NSWCCA 186
Regina v Storey (1978) 140 CLR 364
Regina v Vastag (NSWCCA, unreported, 20 June 1997)
Regina v Walters (1992) 62 A Crim R 16
Regina v Willersdorf [2001] QCA 183
Regina v Wilson [2005] NSWCCA 20
Regina v Youssef (1990) 50 A Crim R 1
Regina v Zorad (1990) 19 NSWLR 91
Rex v Hopper [1915] 2 KB 431
Ross v The King (1922) 30 CLR 246
Varley v The Queen (1976) 51 ALJR 243
White v The King (1922) 17 CAR 60
Wilde v The Queen (1988) 164 CLR 365
Woolmington v DPP [1935] AC 462PARTIES: Regina
Michael KanaanFILE NUMBER(S): CCA 2001/3273
COUNSEL: S Odgers SC/H Dhanji (Appellant)
P Barrett/Ms J Girdham (Crown)SOLICITORS: Michael Croke & Co (Appellant)
C K Smith (Crown)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 70040/2000
LOWER COURT JUDICIAL OFFICER: G James J
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
2001/3273
Thursday 17 November 2005HUNT AJA
BUDDIN J
HOEBEN JREGINA v KANAANHeadnote
The appellant was charged with the murder of two men, and with having maliciously wounded a third man with intent to inflict grievous bodily harm, in an altercation on the footpath outside a hotel. The Crown case was that the appellant and other men stopped the motor vehicle in which they were travelling when they saw a fight between one of the deceased and the man wounded, and that the appellant left the vehicle and fired a gun directed at the three men a number of times in quick succession and at close proximity to them. There was slight evidence that the appellant was involved in a scuffle with one of the deceased before he fired the gun. One of the men accompanying the appellant was indemnified by the Attorney General in relation to his evidence against the appellant.
The appellant's case was one of alibi. Both the Crown prosecutor and the appellant's very experienced counsel at the trial declined the trial judge's offer to put manslaughter to the jury as an alternative verdict. The trial proceeded on the basis that whoever fired the gun had the relevant state of mind for murder. It was, therefore, a "murder-or-nothing" defence. The appellant was convicted on all three charges.
On appeal, the appellant (represented by different counsel) submitted that the trial judge was bound to put manslaughter to the jury as an alternative verdict wherever there is a viable case of manslaughter, even when that course is opposed at the trial.
HELD:
(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is "viable"). If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury — notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury.
(2) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. Subject to the provisions of the Criminal Appeal Rules, r 4, the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred.
(3) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial.
Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 202 ALR 202 discussed and followed.
Ross v The King (1922) 30 CLR 246; Mraz v The Queen (1955) 93 CLR 493; Gammage v The Queen (1969) 122 CLR 444; Pemble v The Queen (1971) 124 CLR 107; Varley v The Queen (1976) 51 ALJR 243 considered.
Regina v Evans & Lewis [1969] VR 858; Regina v Hitchins & Elliott [1983] 3 NSWLR 318; Regina v Park [2003] NSWCCA 203; Regina v Elfar (2003) 115 A Crim R 64 discussed and not followed.
(4) Whether the principles laid down in Gilbert v The Queen (2000) 201 CLR 414 and Gillard v The Queen (2003) 202 ALR 202 apply beyond murder/manslaughter cases discussed. The application of r 4 of the Criminal Appeal Rules when the point has not been taken at the trial discussed.
Regina v Abusafiah (1991) 25 NSWLR 531; Regina v Wilson [2005] NSWCCA 20 followed.
(5) The conduct of the accused, such as changing his appearance, damaging the vehicle used to suggest that it had been stolen and leaving his usual abode for a period of time immediately after an offence — where the Crown relies on that conduct as being inconsistent with innocence and as amounting to an implied admission of guilt — ordinarily requires directions fashioned on Edwards v The Queen (1993) 178 CLR 193.
(6) The issue raised by an alibi is whether there is a reasonable possibility that the accused was elsewhere and not at the scene of the crime at the relevant time. In order to prove beyond reasonable doubt that the accused was at the scene and not elsewhere, the Crown must remove or eliminate that reasonable possibility.
Regina v Youssef (1990) 50 A Crim R 1 applied.
Form of direction in relation to alibi discussed.
____________________IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
2001/3273
Thursday 17 November 2005HUNT AJA
BUDDIN J
HOEBEN JREGINA v KANAANJudgment1 THE COURT : On 8 August 2001, the appellant (Michael Kanaan) was convicted of having murdered Adam Wright and Michael Hurle and of having maliciously wounded Ronald Singleton with intent to do grievous bodily harm to him. The offences arose out of an altercation on the footpath outside the Five Dock Hotel in the western suburbs of Sydney on 17 July 1998. Each of the deceased died the following day, despite the efforts of medical officers to save their lives.
3 The appellant notified the following grounds of appeal against his convictions:2 On 31 October 2001, the trial judge (G James J) sentenced the appellant to imprisonment for life in relation to each of the counts of murder. The appellant was sentenced to imprisonment for 25 years in relation to the remaining count of wounding with intent to do grievous bodily harm. In each case, the sentence imposed was the maximum provided by law.
4 In light of the Grounds of Appeal which were pressed, it is necessary to set out in some detail the evidence which was led at the trial.
1. The appellant was not liable to prosecution on the third count in the indictment.
2. The trial judge erred in admitting evidence of the circumstances in which the appellant had been seen with a revolver.
4. The trial judge erred in his summing-up to the jury:3. The trial judge erred in failing to leave an alternative of manslaughter in respect of the two counts of murder.
(a) The trial judge erred in the directions given in respect of Rossini.(b) The trial judge erred in the directions on evidence tending to show consciousness of guilt.
(c) The trial judge erred in failing properly to direct the jury regarding the evidence disclosing the appellant’s bad character.
(d) The trial judge erred in failing to direct the jury that they had to reject the evidence of alibi beyond reasonable doubt.
(e) The trial judge erred in failing to direct the jury that the evidence relating to the alibi could not be used as positive evidence of guilt even if the jury rejected the alibi.
(g) The trial judge erred in directing the jury at SU 14.6 that the defence case was that Rossini or the “young man from the back of the car” was the shooter.(f) The trial judge erred in failing to direct the jury that, in a criminal trial, an inference should not be drawn from evidence unless it is the only inference open.
6. A miscarriage of justice was occasioned as a result of the absence at trial of fresh evidence in relation to the witness Rossini.5. A miscarriage of justice was occasioned as a result of the absence at trial of fresh evidence (namely evidence concerning the corrupt conduct of Detective Fabris).
At the outset of the hearing of the appeal, Mr Odgers SC (who appeared with Mr Dhanji for the appellant) indicated that he did not press either of Grounds 1 and 2, and that he abandoned Grounds 4(e) and (f). The appellant also sought leave to appeal against the life sentences imposed on him. The sole basis of the sentence appeal was that it was not open to the judge to find that the appellant acted with an intention to kill. No appeal was argued against the imposition of the maximum sentence for each of the two murders in the event that that submission was rejected, or against the imposition of the maximum sentence for the malicious wounding with intent.
5 The Crown case depended heavily for its acceptance on the evidence of a man who was given the pseudonym Alan Rossini for the purposes of the proceedings. Rossini was arrested in June 1999 in relation to offences involving the supply of drugs. He was subsequently taken before the NSW Crime Commission where he gave evidence about his own activities as well as the activities of other persons. It included his knowledge of the present matter which involved the shooting of three men outside the Five Dock Hotel. In due course, the drug charges against Rossini were withdrawn on his undertaking that he would give evidence of what he knew, inter alia , about the present incident. He was also granted an undertaking by the Attorney-General which was in the following terms:
The Crown case
If you actively cooperate in criminal proceedings against MICHAEL KANAAN, SHADI DERBAS, MOHAMED DIB, BASSAM KAZZI, MOHAMED RUSTON and NASEAM EL ZEYAT for various offences arising from the murders of ADAM WRIGHT and MICHAEL HURLE and the attempted murder of RONALD SINGLETON on 17 July 1998 and if your evidence there is the truth, the whole truth and nothing but the truth, I undertake that:
· evidence which you give or produce;
· information or evidence obtained as a result· the fact that you do so; and
will not be used in proceedings against you except in respect of the falsity of your evidence.
The evidenceThe undertaking became an exhibit at the trial.
6 Rossini gave evidence that, as at the time of the incident at Five Dock, he had known the appellant for between two and a half to three years, and that in the months preceding that incident he had seen him on an almost daily basis.
7 Rossini gave evidence that, on the night of the incident, he and the appellant had gone to premises in Telopea Street, Punchbowl, where a mutual friend named Shadi Derbas lived. Apart from Derbas, also present was a man named Bassam Kazzi (whom Rossini also knew), and a young male aged between 16 and 18 years (whom Derbas knew but Rossini did not). Rossini described the young male as being five feet and five inches tall, and of slim build. He also provided descriptions of the other men and the clothing they were wearing that evening.
8 At Derbas’ house, a decision was made that the group would go to a café in the Five Dock area. They travelled in a red Mitsubishi Magna station wagon to Café Extreme where they met up with a man named Fadi Yannieh. They spoke to Yannieh, and left after having had a meal. Yannieh gave evidence recalling an occasion on which Derbas and three of his friends had come to the café in mid-1998 for a meal. In cross-examination, however, he said that the appellant was not one of the men who was with Derbas on that occasion.
9 Rossini said that, following the meal, the five men returned to the vehicle and drove along the Great Northern Road to the Five Dock Hotel. There they stopped at a set of traffic lights which was located outside the hotel. Derbas was driving, Rossini was in the front passenger seat, the appellant was seated behind Derbas, Kazzi was behind Rossini and the young man was in the middle of the back seat.
10 Other evidence established that, at the time the vehicle stopped at the traffic lights, two patrons of the hotel, Ronald Singleton and Michael Hurle (who were friends), were standing outside it having become involved in a physical altercation. Adam Wright, who was a friend of the two men, had also emerged from the hotel in an endeavour to placate them. These men and the occupants of the vehicle were strangers to each other. Rossini saw the struggle taking place a short distance from where the vehicle had stopped. He wound down the window and shouted out to the men “Come on, fellows, punch on”. This prompted one person, whom the evidence established was Ronald Singleton, to approach the vehicle and say something to the effect of “you fucking wogs”. Rossini then grabbed his wrist and opened the vehicle door, forcing Mr Singleton back. Rossini then exchanged punches with both Mr Singleton and one of the other men who had also come over to where the vehicle had stopped.
11 Rossini said that he received a blow to his jaw which knocked him back so that he was half in and half out of the vehicle. At that stage, he became aware of Kazzi who was also fighting with someone in the vicinity of the vehicle. Rossini said that, after he was forced back into the vehicle, he heard one or two gunshots. He said that they came from an area outside the back of the vehicle. He looked in the direction from which they had come and saw the appellant running “from my left to his right with a gun in his hand firing”. He said that he was firing “in the direction of the footpath”. As a result he saw “three or four blokes falling to the ground”.
12 Rossini said that he then became aware of someone pulling on the bottom of his trouser leg. Other evidence indicates that the person in question was Ronald Singleton. Rossini said that he tried unsuccessfully to kick the man away. Derbas, who had remained in the vehicle, then tried to pull Rossini back into the vehicle. Rossini then became aware that the appellant had returned to the vehicle. The appellant pointed his gun in the direction of the man who was holding his leg and then pulled the trigger a few times. However, the gun just clicked as apparently there were no bullets left in it. Eventually Rossini freed himself and the vehicle drove off. Everyone had returned to their original positions in the vehicle except for Kazzi and the appellant, who had changed places in the back seat.
13 The appellant then inquired as to whether everyone was all right. It seems that only minor injuries had been sustained, which prompted the appellant to say “Fuck the Aussies, as long as we’re all right. If it happened again, I would do the same thing". The appellant also said that he had run out of bullets.
14 As they were driving back to Derbas’ house, both the appellant and Rossini indicated that their mobile telephones were missing. Later, Rossini suggested to the appellant that he should ring a mutual friend and tell him to inform their other friends that they should not try to contact them on the missing telephones. Derbas learnt from associates, who were operating a police scanner, that police were looking for the vehicle in which they had been travelling. Patrons of the hotel had evidently provided police with the vehicle’s registration details. The vehicle was placed under the carport at Derbas’ request “because of [police] helicopters”. The vehicle was then de-greased in an endeavour to remove from it any fingerprints and saliva. Attempts were also made to tamper with the locks and the ignition of the vehicle. (Subsequent examinations of the vehicle by the police revealed damage to the lock of one of the doors and the ignition barrel as well as the presence of an oily substance; a strong odour which was described as being similar to a cleaning agent was also detected.) Arrangements were then made to dispose of the vehicle. Next day, Rossini destroyed the clothing which he had been wearing. There was also discussion between him and the appellant about disposing of the gun which the appellant had used during the course of the incident. The appellant later told Rossini that he had thrown it over the bridge into the Cooks River. Police divers were however unable to locate any such weapon.
15 Rossini gave evidence that the appellant had made a call to his girlfriend, Leia Colbert, on Derbas’ mobile telephone. He overheard him telling her that something had come up and that he could not see her that evening. Telephone records indicate that a call was made at 10.48 pm that evening from a mobile phone for which Derbas was the subscriber to a telephone service registered in the name of Ms Colbert’s mother. Ms Colbert gave evidence that she had begun to keep company with the appellant in about June 1998. He provided her with various telephone numbers on which she could reach him. She recorded the numbers in her diary. She said that the appellant had arranged to pick her up at 8 pm on 17 July 1998 (the date of the shooting incident). She said that he had, however, telephoned at about that time to say that he could not make it. Later that evening, he had telephoned her again to tell her not to call him on his mobile or to leave messages because he had lost it. Instead, he provided her with another number on which she would be able to ring him. She said that she had rung that number two days later and had left a message. The appellant told her, when he returned her call, that he had to go away on business for a few days and that he would call her when he returned. She did not hear from him again.
16 On Sunday 19 July, the appellant made arrangements for a friend, Ellie Gialouris (whom he had known for about eight years), to pick up both him and Rossini from his house. From there they went to her hair salon where she gave each of them a haircut. Rossini said that the appellant had had his hair cut all over whilst he (Rossini) had had his ponytail cut off and the back of his hair shaved. Arrangements were then made for Ms Gialouris to drive them to Callala Beach (which is apparently about two and a half hours' drive from Sydney). The two men stayed there at her parents’ place for about a week. Rossini requested her to tell police, if inquiries were made of her, that she had in fact cut his hair the previous week.
17 Ms Gialouris gave evidence that she had cut the men’s hair, although she described the appellant’s haircut as being the usual trim which she was in the habit of giving him. She confirmed that they had gone to Callala Beach for a few days but was unable to recall whether it was the same day that she had done their hair or a couple of days later.
18 Rossini gave evidence that the weapon which the appellant was carrying at the time of the incident was a small black 0.22 revolver which had red rubber bands on the handle. He said that the appellant had been carrying it every day for a period of about five months. He was shown a series of photographs of guns by the police and he identified one which he said was the same shape, size and colour as the gun which the appellant had had on the night in question.
19 A man who was given the pseudonym John Lee gave evidence that he had seen the appellant on an almost daily basis in the early part of 1998. He said that he was usually accompanied by Rossini. He gave evidence that he observed that the appellant was carrying a gun during that period of time. He described it as a dark, blackish revolver which had red elastic bands around the handle. The appellant told him that “revolvers do not let you down because they guarantee six shots”.
20 A man who was given the pseudonym Dennis Green gave evidence that he too had had almost daily contact with the appellant in the first half of 1998. He also said that the appellant was usually accompanied by Rossini. Once or twice, Green saw that the appellant was carrying a gun which he described as being a black revolver with a wooden handle which had yellowish, brownish rubber bands wrapped around it. Both he and Green said that there was a period in mid-1998 when they did not see the appellant or Rossini for a while. When the pair returned, they noticed that Rossini had had his hair cut off. Both Lee and Green had received reduced sentences for drug offences which they had each committed by reason of their undertakings to give evidence on behalf of the Crown.
21 Senior Constable Luke Wise, who was attached to the Forensic Ballistics Section in the Forensic Services Group, examined the clothing of the three victims. He was able to account for four shots having been fired. One shot fired at Mr Singleton travelled through his right arm and then exited. Sooting on his clothing indicated that he had been shot at close range. That projectile was not recovered. One shot struck Mr Wright in the lower abdomen. That projectile was recovered from his body during the course of the post-mortem examination. Two shots were apparently fired at Michael Hurle. One shot entered the front upper right side of his clothing and exited at the front lower left side without causing any injury. The presence of sooting on his clothing indicated that he too was shot from close range with the muzzle of the gun being no more than 10 cm away at the time. A second shot entered the lower left side of his chest. That projectile was also recovered during the post-mortem examination.
22 The projectiles which were recovered by police were consistent with having been components of a Remington 0.22 long rifle calibre cartridge. The fact that no fired cartridge cases were found at the scene indicated to Senior Constable Wise that it was more likely that the firearm was a revolver, because the fired cartridge cases of such a firearm remain in the cylinder after each shot is discharged.
23 Although Senior Constable Wise was unable to state with certainty whether the weapon was a rifle, a sub-machine gun or a revolver, it was his opinion, based on the evidence, that it was most likely to have been a revolver.
24 Police recovered two Ericsson mobile telephones from the scene. One of them was missing its aerial. No DNA or fingerprint evidence was led in relation to these telephones. Rossini identified them as belonging to himself and the appellant respectively. Green gave evidence that the appellant and Rossini each had an Ericsson 688 mobile telephone at the time of the incident. He said that the appellant’s telephone was black and that it was distinctive, in that its antenna had a silver ball on it. Ms Colbert gave evidence to similar effect and said that the telephone, which Rossini had identified as being the appellant’s, looked like the one which she had seen the appellant with.
25 A considerable number of eyewitnesses to the incident were called to give evidence. It will be necessary to refer to the evidence of only some of those witnesses. Although a number of inconsistencies understandably emerged from the versions which they gave, there was a degree of consistency between them that Ronald Singleton and the man who had been in the front seat of the vehicle had become involved in an altercation. The Crown case was that that person was Rossini. Moreover, the descriptions of him provided by a considerable number of the eyewitnesses were consistent with his appearance at the time of the incident. That person will be referred hereinafter as Rossini, although he was not so identified by any of the witnesses.
26 Ronald Singleton gave evidence that he and Michael Hurle had been having an argument outside the hotel and that Adam Wright had tried to settle things between them. He saw a vehicle pull up at the lights and then heard the man in the front passenger seat yell something out. Mr Singleton replied “Pull your head in, you wog”. He and that man then approached each other and began to exchange punches. As a result, the man fell back into the front seat of the vehicle. Whilst they were punching each other, Mr Singleton heard a number of gunshots in rapid succession coming from the back seat of the vehicle. Mr Singleton took hold of Rossini’s legs but eventually let go of them when the vehicle drove away. It was only after the vehicle had left that he realised that he had been shot in the shoulder. He looked at Adam Wright who showed him that he had been shot in the stomach. He then saw Mr Wright walk into the hotel and collapse.
27 Suzanne Robberds saw Adam Wright join in the scuffle that Ronald Singleton was having with Rossini. She then saw another male, whom the Crown asserted was Kazzi, fighting with both Adam Wright and Michael Hurle. She saw Michael Hurle move towards the back of the vehicle. Ms Robberds then saw the person who was sitting behind the driver (whom the Crown alleged was the appellant) get out and walk towards the back of the vehicle where he and Michael Hurle began to scuffle. Punches were exchanged and then the men came together in what she described as a type of embrace. Ms Robberds then heard approximately two loud cracking sounds coming from the direction of where Michael Hurle was standing. She saw him fall to the ground, whereupon the man with whom he had been fighting kicked him in the side before running back to the vehicle. As she ran towards Michael Hurle, she heard three or four further cracking sounds. She looked back towards the hotel and saw Mr Singleton falling back towards the doors of the hotel. She then saw the man who had left the seat behind the driver standing at the vehicle with his hand in the air pointing towards the hotel. The cracking sounds which she had heard had come from where he was standing. In cross-examination, she said that the man had his hand outstretched and also said that he was holding something in his right hand. She was pretty certain that the same person had shot Michael Hurle and then Mr Singleton. She agreed that she had told police that, before the man (whom she said she thought had a gun), had began scuffling with Michael Hurle, she had seen him point in the direction of where Mr Singleton and Adam Wright were fighting. She had then heard a cracking sound.
28 Natalie Cunynghame saw Ronald Singleton approach Rossini and exchange punches. As they were fighting she saw an object, which she thought was a mobile telephone, fly across the road. She saw that Michael Hurle and Adam Wright had followed Mr Singleton over to the vehicle. She then heard a sound like a firecracker and saw a person (whom the Crown alleged was the appellant) standing at the rear passenger door behind the driver. She said that she observed that there were five people in the vehicle, but later she said that only four people left the vehicle, with the person in the middle of the back seat remaining in the vehicle. She said that she heard a total of five sounds like firecrackers and that, when she heard them, Mr Singleton and Rossini were still fighting.
29 Melinda Catchpole said that she saw five people in the vehicle, two in the front and three in the back. She saw Michael Hurle fighting with someone at the back of the vehicle. She then saw another person leave the seat behind the driver. She heard four or five bangs coming from that area. In cross-examination, she said that that person (whom the Crown alleged was the appellant) was within a few metres of Michael Hurle when what she thought was a gun was fired. The gun was in the man’s right hand. The gunshots, according to Ms Catchpole, were not all aimed in the one direction, but were sprayed everywhere. She also saw the gunman move his hand in an arc motion from the back of the vehicle towards the hotel. In cross-examination, she said that, as the vehicle drove away, Mr Singleton was holding on to a person who was on the right hand side of the vehicle behind the driver.
30 Karen Smith heard at least five gunshots during the course of the fight between Ronald Singleton and Rossini. She saw that Michael Hurle was on the ground in the middle of the road, and that one of the men who had emerged from the vehicle was hitting him with a small black object. She saw only two men leave the vehicle, namely the person sitting in the rear behind the driver and the person sitting behind the front passenger’s seat. The vehicle itself, she said, contained five people.
31 Stephen Pappalardo saw the initial fight between Mr Singleton and Rossini. A person who got out of the “back passenger seat” (whom the Crown alleged was Kazzi) and Adam Wright also both became involved in the fight. Pappalardo then saw a man who left the back seat behind the driver’s side (whom the Crown alleged was the appellant) approach the area of the fight. He gave evidence of a total of five gunshots coming from the area of the vehicle. He saw the person who had emerged from the back seat on the driver’s side attempt to re-enter the vehicle by getting into the rear passenger seat. It appeared to him that Mr Singleton grabbed the legs of both that man as well as the person who had got into the front passenger seat.
32 Rebecca Chaplin said that she saw five people in the vehicle. She saw the person from the rear passenger seat leave and commence to fight with Michael Hurle in the middle of the road. She heard a total of five or six sounds like firecrackers in all.
33 Nathan Wood’s statement was tendered. He heard gunshots coming from the gutter area at the front left of the vehicle. He then saw a male person run from the roadway at the front left of the vehicle and stumble on the footpath. Wood then saw Adam Wright on the footpath throwing a punch at a person who was approaching him. He heard another gunshot and saw Adam Wright jump back, lift up his shirt and look at his belly.
34 Keiran McDonnell said that he had seen a man running from the back of the vehicle towards the back passenger’s side of the vehicle and get in. As he was running, he saw the man stumble after which he heard two gunshots. His description of the person was consistent with the appellant’s appearance.
36 There was also a considerable body of evidence regarding the use and possession of mobile telephones by Rossini, the appellant and their associates. It was common ground that they were constantly changing their mobile telephones in an endeavour to conceal their illicit activities from the police. It would also appear that this group of people had access to, and would use, each other’s telephones. The Crown endeavoured, by referring to call charge records in addition to other evidence, to demonstrate that the mobile telephones which were located at the scene were in the possession of Rossini and of the appellant respectively. The Crown relied in part on records, which indicated the persons to whom calls were made and from whom calls were received, to establish with whom the particular telephone was associated at the particular time.35 Matthew Scott saw three men leave the vehicle. He saw the man who emerged from the rear passenger seat fighting with Ronald Singleton as a result of which each of them fell into the back seat of the vehicle. At the same time, he saw Adam Wright engaged in a fight with the person who had left the front passenger seat. As that was happening, he heard two gunshots as a result of which he saw Mr Wright’s head thrust backwards. He then saw him holding his belly.
The case for the appellant37 The appellant did not give evidence at the trial even though he relied on evidence of an alibi. The Crown was not informed about the fact that the appellant was going to rely on an alibi until shortly before the trial was listed to commence. The alibi consisted of evidence from the appellant's brother (Najieh Kanaan), and two of his friends, that they had all spent the evening of 17 July 1998 (the date of the shooting) in the company of the appellant at his premises in Belfield, where they had played cards and watched a game of football on television. There was also evidence that two other associates of the appellant had visited the premises that evening, although neither of those persons gave evidence.
38 Each of the witnesses gave evidence explaining why they had not provided police with the information that they had concerning the availability to the appellant of an alibi. The appellant’s brother, for example, said that the reason that he did not come forward with the information immediately was because he wanted to wait for the committal proceedings, at which he anticipated that the allegations against the appellant would be revealed to be untrue. He agreed that he had not informed counsel who had appeared on the appellant’s behalf at the committal proceedings of the fact that the appellant had an alibi.
39 Nevertheless, he maintained that he had told a barrister (Mr G Stanton), that the appellant had an alibi. Mr Stanton did not appear for the appellant at any stage of the proceedings. The appellant’s brother gave evidence that he had asked Mr Stanton for advice as to when he should come forward with the information concerning the alibi. He said that he was told by Mr Stanton to wait until a couple of months before the trial. The appellant’s brother maintained that he had consulted Mr Stanton because he was Lebanese and was familiar with the Lebanese community. He also said that he did not trust the appellant’s lawyers, although he conceded in cross-examination that he had had daily contact with the appellant’s counsel at the committal proceedings and that he had provided counsel with information about the witnesses who gave evidence at those proceedings.
40 The Crown called Mr Stanton in its case in reply. In essence, he denied the contents of the conversations which were attributed to him by the appellant’s brother. He said that, although he had spoken to the appellant’s brother during the course of the committal hearing, at no stage had the question of the appellant having an alibi been raised with him. He agreed that he had discussed in general terms the nature of committal proceedings with the appellant’s brother and family. However, he said that he had told them that they should discuss any matters concerning the trial with counsel who was appearing for the appellant.
42 Bassim Kazzi and Shadi Derbas each declined to provide a statement to police. Kazzi, however, gave evidence on behalf of the appellant in which he denied that he was an occupant of the red Mitsubishi Magna station wagon on the night in question. He said that he had known the appellant, as at the time of the incident, for a number of years, but that he could not recall having spoken to him in July 1998. He also said that, although Rossini’s face looked familiar, the first time that he had seen him was at the committal hearing.41 The appellant’s brother and another of the alibi witnesses gave evidence that the appellant was left-handed. Mr Rossini said in cross-examination that he did not know which hand the appellant had used when firing the gun, but he agreed that he was left-handed or at least predominantly so.
Hearing: the issues44 Counsel for the appellant at trial mounted a significant attack on Rossini’s credibility. He made a number of submissions to the jury as to why they would reject his evidence. The trial judge reminded the jury of each of those matters in his Summing-up. It included:43 In the final analysis, the issues to be determined by the jury were straightforward. The trial judge directed the jury in forceful terms that they could not be satisfied of the appellant’s guilt to the requisite standard unless they accepted the evidence of Rossini beyond reasonable doubt. The Crown contended that the jury would be so satisfied, and it pointed to matters which were at least capable of supporting Rossini’s assertion that the appellant was present at the time of the incident. It also identified reasons why Rossini should be accepted when he said that the appellant was the shooter, as well as pointing to the inherent improbability that anyone else was the shooter.
GROUND 3 — The trial judge erred in failing to leave an alternative of manslaughter in respect of the two counts of murder(a) Rossini's post-incident conduct including changing his appearance and burning his clothing, from which it could be inferred that, far from being a “bit” player, he was in fact a “prime” player;
(b) a number of inconsistencies in his various statements about the matter;
(c) the fact that his evidence was contradicted by both Yannieh and Kazzi as well as the alibi witnesses;
(d) the evidence that the appellant was left-handed was at odds with eyewitness accounts, which said that the shooter was right-handed;
(e) the telephone records which were in evidence did not support Rossini’s account in a number of respects, including (for example), that Derbas had made a call from the vehicle whilst they were leaving the scene; and
(f) it was possible that the young man in the back seat was the shooter of at least some of the victims.
In support of this last proposition, reliance was placed on Ronald Singleton’s evidence that shots had come from within the vehicle and the fact that Rossini had said at one stage that this person had left the vehicle and had been wrestling with someone. Moreover, as they were leaving the scene, Derbas informed the appellant that there was another gun under the seat in the vehicle, whereupon the young man reached under the seat and produced a 0.38 calibre revolver.
45 The consequences of the failure of a trial judge to direct a jury in relation to the alternative verdict of manslaughter in a murder trial — even where trial counsel for the accused has, for tactical or other reasons, requested the judge not to do so — have been the subject of debate in the High Court for many years. The decisions given by that Court on the issue have not always had the appearance of consistency, as different views have been expressed in different cases. At present, however, there is a clear majority for one particular approach, which this judgment will discuss in the light of the different views which have been expressed over the years.
46 If the alternative verdict of manslaughter should have been left, but was not, there has been a “wrong decision” on a question of law. In such a case, s 6 of the CriminalAppeal Act 1912 requires this Court to set aside the conviction unless the proviso to s 6 applies, the effect of which is that a new trial will not be ordered where the Crown satisfies the Court that no substantial miscarriage of justice has actually occurred — in the sense that the appellant had not lost any real chance (or a chance which was fairly open to him) of being acquitted of the offence for which he had been convicted: Mraz v The Queen (1955) 93 CLR 493 at 514; Regina v Storey (1978) 140 CLR 364 at 376; Wilde v The Queen (1988) 164 CLR 365 at 371-372.
48 In dealing with the consequences of the failure of a trial judge to direct a jury in relation to the alternative verdict of manslaughter in a murder trial, the distinction has been drawn in the cases between —47 The test for the application of the proviso is often stated to be whether an appropriately directed jury, acting reasonably on the evidence properly before them, would inevitably or necessarily have convicted the appellant: Mraz v The Queen at 514-515; Wilde v The Queen at 371-373; Regina v Zorad (1990) 19 NSWLR 91 at 108; Gillard v The Queen (2003) 202 ALR 202 at [1]. The word “inevitably” appears to have been used in this context as long ago as White v The King (1922) 17 CAR 60 at 65 (where the alternative of “certainly” was also given). See also Woolmington v DPP [1935] AC 462 at 482-483.
49 The origin of the mechanistic approach appears to be within the following passage of the joint judgment of Knox CJ, Gavan Duffy and Starke JJ in Ross v The King (1922) 30 CLR 246 at 253-254 (in the quotations in this and the following paragraph the emphasis has been added, and the italicised passages are discussed in par [53] infra ):
(a) what has been described as either the “mechanistic” approach to the jury’s task in a murder trial ( Gilbert v The Queen (2000) 201 CLR 414 at 421 by Gleeson CJ and Gummow J — who did not accept that approach), or the “legalistic” approach ( Gilbert v The Queen at 425 by McHugh J — who did accept that approach); and
(b) what has been described variously as the jury’s privilege to return a “wrong” verdict ( Gammage v The Queen (1969) 122 CLR 444 at 451 by Barwick CJ) or its right to take a “merciful” view of the facts ( McKenzie v The Queen (1996) 190 CLR 348 at 367 by Gaudron, Gummow and Kirby JJ).
Higgins J (at 270) agreed with the joint judgment, but did so with an emphasis on the deliberate choice of counsel for the accused not to seek a direction on manslaughter (even in the absence of the jury), saying (at 273) that it was easy to conceive of “ cases in which such a direction would be essential ” but asserting that “ the present is not such a case ”. In the course of this discussion, Higgins J said:
In view of the opinion we have expressed, it is unnecessary to discuss the decisions in Rex v Hopper [1915] 2 KB 431 and Regina v Clinton (1917) 12 CAR 215, because we think it is clear that, if on a trial the Judge correctly instructs the jury on the essential ingredients of the crime charged and fully and fairly puts to the jury the defence set up by the prisoner, a verdict of guilty amounts to a finding by the jury of every essential element of that crime, and cannot be disturbed by a suggestion that the jury on the evidence might have found him guilty of a lesser offence if the Judge had informed them that they were at liberty to do so.We think the learned Judge acted wisely and in the interests of the prisoner in excluding from the consideration of the jury an issue which was not raised by the prisoner’s counsel, which no reasonable jury could have found in his favour , and which, if found in his favour, was less advantageous to him than the verdict of acquittal which the jury were bound to find under the Judge’s direction if they did not find an intention to kill.
As those who are familiar with murder trials well know, if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death.
50 Issacs J wrote a strong dissent, saying (at 260):He repeated the need for evidence to support a case of manslaughter when he said (at 262, 263):
I cannot for myself imagine a more serious breach of the fundamental principles which justice requires to be observed, than the want of a sufficient instruction to a jury to distinguish between wilful murder and manslaughter where the facts require it .
The charge being wilful murder, it was open to the jury to find manslaughter only if the facts permitted .
[…] except so far as the Legislature specially chooses to relax them, no prisoner can validly consent to any serious breach of the administration of criminal law. It is such a breach if, in a case where manslaughter is on the evidence a possible verdict , the necessary instruction is not given to the jury.[…]
Issacs J went on to discuss various cases supporting that proposition, including Rex v Hopper , and he distinguished Rex v Clinton on the basis that it did not raise a possible case of manslaughter. Those are the cases which the joint judgment said it was unnecessary to discuss — although it is unclear whether that was because, in the opinion of those justices (and contrary to the opinion of Isaacs J), there was no evidence in the case before the High Court to support a manslaughter verdict.
51 All five judges in Ross v The King therefore effectively agreed, in the italicised passages quoted, that manslaughter cannot be left to the jury if there is no evidence to support it. No-one since has sought to deny that proposition. A currently adopted test is that there must be a ”viable” case of manslaughter to be considered on the evidence before such a case may be left: Gillard v The Queen (2003) 202 ALR 202 at [1], [26]. That test does not differ in substance from the tests stated in Pemble v The Queen (1971) 124 CLR 107 — that the alternative verdict of manslaughter should be left to the jury if on the evidence they could find the accused guilty of manslaughter (at 118-119), or if a verdict of manslaughter was open on the evidence (at 133).53 That is how the majority of the Victorian Full Court interpreted that passage in Regina v Evans & Lewis [1969] VR 858. The majority found (at 866) that no reasonable jury could have found the accused guilty of manslaughter on the evidence. However, they proceeded to expound the proposition (at 867) — which they said was based on the second paragraph of the passage from Ross v The King quoted in par [49] supra , and that it was applicable to all criminal trials — that, in determining whether the omission to leave an alternative verdict on a less serious crime52 The description of the joint judgment in Ross v The King as the origin of the mechanistic approach is directed to the second paragraph of the passage quoted in par [49] supra . On its face, that paragraph certainly appears to state very firmly the proposition that there can be no new trial where there has been a verdict of guilty of murder even if there were evidence on which the jury might have found the lesser verdict of manslaughter. In other words, that proposition is unqualified by the earlier finding in the joint judgment that no reasonable jury could have found manslaughter in that case.
They subsequently (at 871) said:
[…] regard must be had to the verdict, the directions upon which it was founded and the evidence at the trial which would have provided material for a verdict of the less serious crime. In making that examination, an appellate court must proceed on the basis that the jury have understood the law as expounded to them by the trial judge and, applying that law, have returned a true verdict in accordance with the evidence. When such an examination is made, it may appear that the verdict of guilty of the crime charged negates the possibility of the jury returning a verdict of guilty of the lesser offence.
A court of appeal must not speculate upon the chance that the jury if fully instructed might, in mercy to the accused and contrary to their oath, have returned a verdict of not guilty of the charge named in the presentment but guilty of a lesser charge which was open on the evidence.[…]
If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence if the judge had informed them they were at liberty to do so.
The majority read the decision of the High Court in Mraz v The Queen (1955) 93 CLR 493 — to which reference is made in par [55] infra — as supporting such an interpretation because of the observation in the joint judgment of Williams, Webb and Taylor JJ (at 504) that, although it was open to the jury to have returned a verdict of manslaughter on the evidence and it would have been permissible for the judge to have given directions on manslaughter, it had been unnecessary for the judge to have done so “for neither the Crown nor counsel for the accused suggested such a course nor did the jury seek a direction on the matter”.
54 Smith J found (at 879) that there was evidence on which a verdict of manslaughter was open. Like Isaacs J, he wrote a strong dissent, stating (at 882) that the interpretation of Ross v The King formulated by the majority
[…] would, in my opinion, be inconsistent with principles laid down in subsequent decisions in the Privy Council, the House of Lords, and the High Court, to which I have already referred, and in my view, could, therefore, no longer be regarded as good law.
Smith J had referred to Kwaku Mensah v The King [1946] AC 83 (PC) at 91-92, Bullard v The Queen [1957] AC 635 (HL) at 644 and Mraz v The Queen (HC) at 508, 513-514.
55 In the last of those cases, Mraz v The Queen , the appellant had been charged with the felony murder of a woman whom he was alleged to have raped, causing her death. Murder was the only charge. The jury was directed that, if the rape had been committed with the intention of injuring the woman, he was guilty of murder, but he was guilty of only manslaughter if his intention had been merely to gratify his own desires. He was found guilty of manslaughter, but the direction was held to be erroneous, as a finding that the death of the deceased was caused by the acts of the appellant associated with or in furtherance of the rape necessarily established felony murder rather than manslaughter (at 505). No finding of manslaughter on the basis left to the jury was therefore open on the evidence. The joint judgment of Williams, Webb and Taylor JJ, having quoted the statement by Higgins J in Ross v The King concerning the strong tendency of jurors to shrink from pronouncing a murder verdict leading to the death sentence, said (at 507-508):
Whilst, perhaps, the like comment may not now be made with quite the same force it is clear that the appellant was entitled to have the issues decided upon the graver charge and, to us, it seems quite wrong to attempt to justify the verdict of manslaughter, returned in the circumstances of this case, by the observation that the jury, upon an issue of manslaughter which they were invited to consider, must have reached conclusions on issues of fact which would have required them, if properly instructed, to have returned a verdict of murder. It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions.
56 In his judgment, Fullagar J said (at 513):The joint judgment went on to say that the reasons given were substantially the same as those given by Fullagar J. The conviction for manslaughter was quashed.
Fullagar J concluded his judgment with this (at 517):
It is, of course, true that, if the erroneous part of the charge had been omitted, the jury might have convicted the appellant of murder, which is the more serious crime than manslaughter. But it is equally true that a jury not confused by the erroneous matter might have acquitted the appellant on the only charge in the presentment. In many murder trials the question whether the possibility of a verdict of manslaughter should be raised presents a serious problem to counsel for the accused. Probably in most cases it is regarded as disadvantageous to the accused to suggest the possibility of a verdict of manslaughter. A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them.
Reference is then made to Ross v The Queen , and the passage from the judgment of Higgins J is again quoted. Fullagar J continued (at 514):
In the present case the jury may well have hesitated long before convicting the appellant of murder, and it is very far indeed from clear that the misdirection did not operate to his grave disadvantage. In such circumstances it is impossible to say that no substantial miscarriage of justice has occurred. These “too favourable” directions can only too often be veritable gifts from the Greeks.
57 The next relevant case in the High Court, chronologically, is Gammage v The Queen (1969) 122 CLR 444. In that case, the trial judge had directed the jury that, if they were satisfied that murder had been committed, they must not find the accused guilty of a lesser offence in order to be merciful. Of this direction, Barwick CJ said (at 450-451):
It is no answer to the argument for the appellant in this case to say that it is always permissible for a jury, on a trial for murder, to return a verdict of manslaughter: see eg Brown v The King (1913) 17 CLR 570. This right was referred to in Hughes v The King (1951) 84 CLR 170 at 175 as “the privilege of returning a merciful verdict of manslaughter”. The verdict in the present case cannot be taken to have been returned in the exercise of that “privilege”. It was returned on an erroneous direction as to what constituted the crime of manslaughter.
Out of the circumstance that, though not charged, manslaughter if made out may be found on an indictment of murder, there naturally arises the obligation to tell the jury if they ask, or if the accused requires it, that this alternative verdict is open to them if that is their view of the facts. Failure to so advise them will give rise to a justifiable complaint on the part of the prisoner. But, part of that advice should, in my opinion, be a clear statement of the occasion on which the jury might properly return a verdict of manslaughter.
[…]
Of course, if a jury improperly returns a verdict of manslaughter when there is in fact no material on which such a verdict may properly be returned, the trial judge may request their consideration of the matter: but if they persist in the verdict, he must in the end accept it.
[…]
[The jury] have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict.
Because it is for the jury to be satisfied of the elements of the murder charged and not for the presiding judge, the possibility of a verdict of manslaughter must almost always be present though there may be cases, of which Mraz v The Queen is suggested as an example, where there cannot be any reason for such a verdict. I have already indicated how I think such a case should be treated. In such a case it would not be a misdirection, in my opinion, to refuse to inform the jury that they may return a verdict of manslaughter. But in almost every case, if asked, the judge would be bound to tell the jury of the alternative verdict open to them. However, in that event, he should inform them of the basis on which they may properly return such a verdict.[…]
59 The High Court once more approached the issue of the directions to be given in a murder trial — but without reference to Ross v The Queen — in Pemble v The Queen (1971) 124 CLR 107. The accused’s case at the trial was that he fired a rifle killing the deceased without knowing that it was loaded and only to frighten the deceased, that he had held the rifle in the air but had stumbled, and that he had not intended to hurt the deceased. His counsel did not invite the jury to acquit the accused, and the judge directed the jury that the issue was whether the accused was guilty of murder or “something less”. It was not suggested by anyone that the accused could be found not guilty of both murder and manslaughter. The accused was convicted of murder. It was held that the course taken by the defence in the conduct of its case did not relieve the judge from the duty to put to the jury any matters on which they might find for the accused. Barwick CJ said (at 117-118):
58 Kitto J expressed the view (at 453) that, whilst the jury has the power to find a verdict against the law, they did not have the right to do so; if, however, they do not alter such a verdict after reconsideration, the verdict must be accepted. Menzies J said (at 456) that it is within the jury’s province to refuse to make any finding involving guilt (even to the extent of finding manslaughter where on no view of the evidence could such finding reasonably be made rather than murder), but that a judge may not inform the jury that, notwithstanding they are satisfied of all the elements of murder, they may bring in a merciful verdict of manslaughter (see also at 460). Windeyer J was of the same opinion (at 463), as was Owen J (at 465).
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
60 Menzies J accepted that a verdict of not guilty was open on the evidence, and said (at 133):The Chief Justice referred with approval to the statements to this effect in Rex v Hopper [1915] 2 KB 431 (at 435); Mancini v DPP [1942] AC 1 (at 7-8) and Kwaku Mensah v The King [1946] AC 83 (at 92-94). However, having considered at length (at 120-125) whether a verdict of not guilty was open on the evidence in that case, the Chief Justice concluded that it was not. He nevertheless concluded that there had been an independent misdirection in relation to the charge of murder, which should lead to the conviction being quashed and a verdict of manslaughter substituted.
Furthermore it is always in the power of the jury to acquit and that power cannot be denied: Gammage v The Queen (1969) 122 CLR 444. Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused on the evidence. The judge must submit that defence to the jury.
61 In Varley v The Queen (1976) 51 ALJR 243, the accused had been charged with murder but convicted of manslaughter. He had dispensed with the services of his counsel during the trial for what was described as tactical reasons, and no issue of manslaughter had been raised by him in his address to the jury. His defence was “murder-or-nothing”. After that address, the trial judge indicated that he proposed to leave manslaughter to the jury, and gave the accused the opportunity to address the jury on that issue, which the accused did. It was argued in the High Court that on the evidence it was not open to the jury to return a verdict of manslaughter. Barwick CJ said (at 245):Windeyer J agreed (at 137) with the conclusion and order proposed by the Chief Justice, and said that he did not see any basis on which the jury, obedient to their oaths, could have acquitted the accused entirely (at 139). Owen J held (at 141-142) that the judge had erred in telling the jury that the case was one of murder or manslaughter, as a verdict of not guilty was open on the evidence. McTiernan J did not find it necessary to deal with this issue. The result of the appeal, by majority, was that a verdict of manslaughter was entered.
[…] if there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, [the judge] was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases, eg Mancini v DPP ; Gammage v The Queen ; Pemble v The Queen . The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury’s satisfaction of all the elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal.
62 Against that background, this Court considered the necessity for manslaughter to be left to the jury in a murder trial in Regina v Hitchins & Elliott [1983] 3 NSWLR 318. It was held (at 334, 336) that where, in addition to the facts on which the murder verdict can be seen to rest there are other facts which would permit a verdict of manslaughter (such as provocation), the verdict of murder cannot stand if manslaughter has not been left; however, where the only basis for a manslaughter verdict was evidence which must by necessary implication have been rejected by the jury in finding the accused guilty of murder, it cannot be said that the accused “may thereby have lost a chance which was fairly open to him” of not being found guilty of murder, so that the proviso to s 6 of the Criminal Appeal Act would be applied to dismiss the appeal notwithstanding the error in not leaving manslaughter to the jury, because no substantial miscarriage of justice had actually occurred: Mraz v The Queen (1955) 93 CLR 493 at 514. Lee J, with whose reasons the other judges agreed, said (at 336):The other justices agreed with the Chief Justice.
The cases on provocation […] exemplify the true basis in law upon which a verdict of murder will be quashed if manslaughter has not been left, and that basis is: where, in addition to the facts upon which the murder verdict can be seen to rest, there are other facts which would permit a verdict in manslaughter, then the verdict of murder cannot stand if manslaughter has not been left.
The question in every case will be whether the failure to put manslaughter means that the murder verdict is suspect or not, and it is difficult to see how it can be said to be suspect when it [that is, the murder verdict] amounts to a rejection of the basis upon which manslaughter could be found.[…]
Those statements accompanied both (a) an acceptance by Lee J of the interpretation of the joint judgment in Ross v The King by the Victorian Full Court in Regina v Evans & Lewis , and (b) his conclusion (at 336) that Pemble v The Queen was not inconsistent with or a departure from the principle applied in Ross v The King .
63 The apparent conflict between (i) the Victorian interpretation of Ross v The King in Regina v Evans & Lewis and (ii) the later decisions of the High Court in Pemble v The Queen and Varley v The Queen was finally resolved in Gilbert v The Queen (2000) 201 CLR 414. The accused was convicted of murder on the basis that he had aided and abetted his brother to carry out the murder of the victim, knowing that his brother intended to kill or to inflict grievous bodily harm on the victim. The accused’s case was that all he knew was that his brother was going to assault the victim. In fact, it was a brutal assault and the victim died. In accordance with then accepted authority in Queensland, the trial judge did not leave manslaughter to the jury. In answer to a question by the jury as to the availability of a verdict of manslaughter, they were directed (in accordance with the same authority) that, if all that the accused knew was the intention to assault the victim, the verdict must be one of not guilty. That authority was subsequently overruled by the High Court, and it was common ground before the Queensland Court of Appeal that manslaughter should have been left to the jury. That Court dismissed the appeal by the application of the proviso.
65 Gleeson CJ and Gummow J rejected those submissions in the following terms (at [14]–[15]):64 On appeal in the High Court, the Crown relied on the decision of the Victorian Full Court in Regina v Evans & Lewis , which favoured the mechanistic approach to the jury’s task in a murder trial. It submitted that it must be assumed that the jury decided the facts dispassionately and then applied to the facts found by them the law as directed. That being so, the Crown submitted, the jury must be taken to have found, uninfluenced by any direction of law, that the appellant had the higher state of knowledge as to what his brother intended to do to the victim, and thus no occasion arose for them to consider the question of manslaughter. The misdirection on the subject of manslaughter was therefore immaterial, the Crown argued, and there was no miscarriage of justice. The corollary of that argument, the joint judgment of Gleeson CJ and Gummow J pointed out (at [13]), is that the jury would have been acting contrary to their duty had they permitted their approach to the facts to have been influenced by the availability of a manslaughter verdict.
Reference is then made to Mraz v The Queen , in which the majority, allowing the appeal, had taken “into account the practical significance of the misdirection”. The passage from the judgment of Higgins J in Ross v The King is again quoted (see par [49] supra ), and reference is made to the judgment of Fullagar J in Mraz v The Queen when he said that “[a] jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them”. The joint judgment continued (at [16]–[17]):
The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
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.
Reliance was placed on a decision of the Supreme Court of Canada, Regina v Jackson [1993] 4 SCR 573, where that Court declined to apply the proviso where the jury had been inadequately directed on the issue of manslaughter. That decision had followed Bullard v The Queen [1957] AC 635 (on which Smith J had relied in his dissenting judgment in Regina v Evans & Lewis ), where Lord Tucker had said (at 644):
These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expressed those consequences.
When, in Mraz , the majority referred to “ignoring the realities of the matter”, one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a “murder-or-nothing” basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.
Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.
After quoting the first of the statements made by Lee J in Regina v Hitchins & Elliott at 336 (see par [62] supra ), Gleeson CJ and Gummow J pointed out (at [11]) that this statement was different to the approach taken by the Supreme Court of Canada in Regina v Jackson .
67 The other member of the majority was Callinan J. He also held that, had manslaughter been left to the jury, it was not inevitable that the appellant would still have been convicted of murder (at [83]–[86]). He agreed with the dissenting view expressed by Pincus JA (in the Queensland Court of Appeal) that the fact of conviction of a greater offence is not always, as a universal proposition, a good answer to a complaint of failure to direct the jury that a verdict of a lesser offence is available (at [90]–[91]). Callinan J (at [94]–[96]) quoted the views of Barwick CJ in Gammage v The Queen (see par [57] supra ) — that, where the jury persists in a verdict of manslaughter despite their acceptance of the facts warranting a murder verdict, that wrong verdict must ultimately be accepted — as recognising that a jury room might not be a place of undeviating intellectual and logical rigour. He also referred to the remarks of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1966) 190 CLR 348 at 367:66 Gleeson CJ and Gummow J held that the admissions made by the appellant to the police in the case before them were not unequivocal, that to say (as the majority of the Queensland Court of Appeal said) that the jury could not rationally have entertained any doubt of his guilt of murder was going too far, and that a jury, properly instructed, would not necessarily have returned a verdict of murder (at [19]–[20], [21]–[22]). A new trial was ordered.
In MacKenzie v The Queen , the joint judgment had referred with approval to the “practical and sensible” remarks of King CJ in Regina v Kirkman (1987) 44 SASR 591 at 593:
[T]he appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
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.
68 McHugh J dissented. He agreed that a verdict of manslaughter was open on the appellant’s evidence. However, as the jury’s verdict of murder meant that they had accepted that the appellant knew that his brother intended to cause at least grievous bodily harm to the victim, they would have rejected manslaughter had it been left. There had therefore been no miscarriage of justice caused by the failure to leave manslaughter to the jury, and thus the proviso should be applied. He formulated his proposition, based on Ross v The King (at 254), in these terms (at [26]; see also at [37]):It should be emphasised that there is a clear difference between the jury taking a “merciful” view of the facts, and thus returning a verdict of manslaughter based on that merciful view of the facts, and returning a “merciful” verdict of manslaughter where the jury have already accepted the facts warranting a verdict of murder.
Where a trial judge correctly directs the jury as to the essential elements of the crime charged, a verdict of guilty necessarily amounts to a finding of every essential element of the crime, and the verdict cannot be set aside on the ground that the trial judge should have directed the jury that on the evidence they could convict the accused of a lesser offence. That proposition is subject to the qualification that, where the evidence, in substance but not necessarily in form, gave rise to a “defence” by way of confession and avoidance which the trial judge failed to put to the jury, the verdict can be set aside.
McHugh J gave as examples those cases in which there is evidence raising issues of provocation and self-defence and where, if the judge fails to leave manslaughter, there will have been a miscarriage of justice. Of the facts in Gilbert , McHugh J said (at [27]) that the jury “could not as a matter of law, fact or conscience find the appellant guilty of manslaughter”, and that, “[o]n the findings implicit in the verdict of guilty of murder, manslaughter was not a verdict which the jury could return”. He regarded it as fundamental to the criminal jury trial that the jury are true to their oath (at [31]), and dismissed the statement of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 513 (quoted in par [65] supra ) as saying only that, properly directed, the jury could have convicted the accused of murder or acquitted him of murder and that it was no answer to say that, because they had convicted him of manslaughter on an erroneous direction, they would necessarily have convicted him of murder on the same facts with a proper direction concerning murder (at [35]).
69 Hayne J also dissented on the basis that the absence of directions as to the availability of a manslaughter verdict had led to no miscarriage of justice, so that the proviso should be applied. He also accepted (at [48]) the argument that the jury could not have returned the verdict of murder unless the appellant had realised that it was his brother’s intention to inflict at least grievous bodily harm on the victim, and thus could only have returned the lesser verdict of manslaughter by disobeying the instructions which had been given to them.
71 Gleeson CJ and Callinan J, in a joint judgment (at [27]), stated the effect of Gilbert v The Queen as being that70 The last of the cases in which the High Court has considered the necessity for manslaughter to be left to the jury in a murder trial is Gillard v The Queen (2003) 202 ALR 202. The appellant stood trial with another man (Preston) for the murder of two men. The case against the appellant was that he was party to a plan by which Preston was to kill the men and that he knew of Preston’s intention to kill them with his gun. He was convicted of murder. He was also convicted of attempted murder, based on Preston’s act of firing at a third man but without killing him. The appellant had, when arrested, asserted that he thought there was only to be a robbery, and he denied knowing that Preston was armed with a gun. At the trial, the judge was not asked to leave manslaughter to the jury, indeed his counsel for tactical purposes opposed the Crown’s application for that issue to be left. In the High Court, the appellant accepted that, even on the robbery hypothesis, the jury should have been directed that they could convict him of manslaughter because of the evidence that, despite his initial denial, he did know that it was an armed robbery (at [9]). There was thus a viable case of manslaughter to be left to the jury (at [26]). The trial judge had not left such a case, and both parties agreed that he should have done so, the only issue being whether the proviso should be applied (at [9], [44]).
[…] it is not an answer to the [present] appellant’s argument to point out that, since the jury were properly … instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice. […] The jury were wrongly deprived of an opportunity to consider an intermediate position.
The issue which remained in Gillard was whether a jury, properly instructed, would necessarily or inevitably have returned a verdict of murder even if manslaughter had been left for the jury’s determination. If not, the proviso could not be applied. Gleeson CJ and Callinan J accepted that, on the evidence in the case (including the appellant’s limited capacity), it was not inevitable that the jury would find that the appellant subjectively foresaw that Preston would shoot with intent to kill or to inflict grievous bodily harm (at [29]). Although the error related only to the two murder counts, the nature of the error was such that Gleeson CJ and Callinan J said (at [27]) that it was impossible to dismiss the possibility that the error affected the verdict on the attempted murder count as well as the verdicts on the two murder counts.
73 Hayne J, who had dissented in Gilbert v The Queen , followed the decision of the majority in that case. He described that the effect of that decision on the facts of the present case in these terms (at [133]–[134]; and see also at [107]):72 Kirby J referred (at [75]) to a statement by Dixon J, in Packett v The King (1937) 58 CLR 190 at 213, that as a general rule, “under the […] common law, it remains within the power of the jury to find a verdict of manslaughter, even though it means disregarding the direction [of the judge on legal liability for homicide]”. Kirby J reached a similar conclusion (at [85]) to that of Gleeson CJ and Callinan J in relation to the availability of manslaughter as a verdict, and agreed (at [95]–[96]) that it could not be said that the appellant would inevitably have been convicted of murder even if manslaughter had been left. Kirby J noted (at [86]) that the Crown had correctly accepted that, if the judge had wrongly refused to leave manslaughter on the two murder counts, the absence of any specific error of direction in relation to the attempted murder count could not alone save the trial or the conviction on that count.
In Gilbert , a majority of the court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant’s trial for murder, the verdict of guilty of murder did not preclude the possibility that the jury may have failed to apply the instructions they were given. No party in this appeal sought to reopen the decision in Gilbert . It follows from what was decided in Gilbert that, in deciding here whether no substantial miscarriage of justice has actually occurred and thus, whether the proviso […] applies, account may not be taken of the findings implicit in the jury’s verdicts at the appellant’s trial. It must be assumed that the jury may have chosen to disregard the instructions they were given, and convict the appellant of murder and attempted murder, rather than return verdicts of not guilty. Once it is accepted that the jury may have disregarded the instructions they were given, it is not permissible to reason, as the respondent submitted, from the fact that the jury returned verdicts of guilty on all three counts to the conclusion that the jury must therefore be taken to have applied the trial judge’s instructions. Once it is said, as it was in Gilbert , that the jury may have disregarded the instructions they were given, it cannot be said that some levels of disobedience may be less probable than others.
170 Rossini did not in fact receive an immunity from prosecution in relation to this matter, or indeed in relation to the other matters. Rather, he received what is often termed a “use immunity”, namely that the evidence which he gives in the various proceedings cannot be used against him “except in respect of the falsity of [his] evidence”. It may be, of course, that nothing of significance turns on the distinction to which reference has just been made, but the submission to that extent was not correct.
171 In any event, the appellant contended that, had Mr Barber’s report been available to him at the time of his trial for the Five Dock matter, he could have cross-examined Rossini during the course of it about the circumstances of the White City shooting. In written submissions, the appellant contended that “it could have been put to [Rossini] that he was the shooter and [that] he had falsely implicated the appellant in that shooting and in the present matter in order to escape prosecution: Evidence Act , s 103. When he denied [it] this evidence could have been adduced in rebuttal: Evidence Act , s 106(a)”.
172 Counsel for the appellant conceded during the course of oral argument that the consequence of this was that the entirety of the proceedings at the aborted trial (which had then run for about three weeks) would need to be considered because there was no other way in which the issue of the identity of the shooter could be determined. Since the resolution of that issue was dependent on an analysis of the entire transcript of those proceedings, the court was provided with a copy of the transcript for its consideration.
174 The appellant responded by submitting that the fact that the material was not fresh was not fatal to his cause. Reference was made to authority to demonstrate that the courts have extended great latitude to accused persons in circumstances such as the present. The appellant relied on the following passage from Lawless v The Queen (1979) 142 CLR 659 at 669, in which Stephen J said:173 The Crown took a preliminary objection to the material. In essence, it submitted that Mr Barber’s report was not “fresh evidence” within the meaning of the authorities. It pointed out that no evidence was placed before the Court to explain why the material had not been obtained long ago, and at least before the commencement of the Five Dock trial which was itself a re-trial after an earlier trial had aborted. It is to be recalled that, at least at that stage, the same counsel had been briefed in both matters. The Crown contended that, from the outset, its case in relation to the White City matter included ballistics evidence. Moreover, it was submitted that counsel in preparing for the Five Dock matter would, by exercising reasonable diligence, have been seeking to locate any material, including material of the kind provided by Mr Barber, which may have tended to discredit Rossini. It was even more extraordinary, it was submitted, that the same counsel would not, in view of the appellant’s version of events, have sought such material when preparing for the White City trial itself.
A criminal trial, no less than a civil action, is of course an adversary proceeding in which each party "must bear the consequences of his own decision as to the calling and treatment of evidence at the trial". But, if for want of knowledge of particular evidence, there has perforce been no making of a decision against adducing it, and if that want of knowledge is not so unexplained as to lead to the inference that it was the product of an intentional failure to make inquiries, it should, in my view, indeed be "only in an exceptional case" that evidence not called because not known to be available is denied its character of fresh evidence.The concept of fresh evidence, as evolved in the cases and in particular in Ratten v The Queen , a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused "bearing in mind his circumstances as an accused, [...] could reasonably have been expected to have become aware and which he could have been able to produce at the trial" it will not be fresh evidence. However "great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial", it being "probably only in an exceptional case" that evidence not actually available to him is to be denied the quality of fresh evidence. So it is that it is evidence which is "actually or constructively available" to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence. These passages all appear in the judgment of the Chief Justice in Ratten's Case , with whose judgment three other members of the Court concurred.
See also Regina v Ilic and Sammut (2000) 118 A Crim R 378 at 387 ; Regina v Abou-Chabake (2004) 149 A Crim R 417 at 428.
175 Although there must be considerable misgivings as whether Mr Barber’s report can properly be regarded as “fresh evidence”, in deference to the detailed submissions which have been advanced by the parties, it is appropriate to examine the question of the cogency of the material on which the appellant relies.
176 Constable Fotopoulos and Constable Patrech each gave evidence as to their respective positions at the time when the shots were fired at them, as well as to the direction and position from which the shots had come. They marked those locations on diagrams which were provided to them for that purpose. The position in which the self-loading pistol which the shooter had used, as well as the position in which the appellant was lying wounded on the tennis court when found by police, were also indicated. Also marked were the positions in which the various spent cartridges that had been fired were located.
177 Mr Barber, and the Crown’s expert (Mr Jackson) were in agreement that the weapon used by the shooter “ejects fired cartridge cases to the right rear quadrant” when the weapon is held in the conventional position. Mr Barber expressed the opinion that, if the position which was marked on the diagram to indicate the area in which the appellant was located was correct, “then you would expect to find the fired cartridge cases on the southern side of that area (that is, to the appellant’s right) not the northern side, which supports Mr Kanaan’s version that another person was firing a weapon on his left side”. It is not entirely clear what the source of that version was, since the evidence which the appellant gave at the aborted trial (in which by agreement his evidence from the previous trial was read) only referred to the shooter, whom he assumed was Rossini, being by his side without specifying on which side he was.
178 Mr Jackson (the Crown's expert) gave evidence in the White City trial that the position in which the fired cartridge cases were located was capable of being influenced by various factors, including the fact that fired cartridge cases bounce when they strike a hard surface such as a tennis court. Accordingly, the positions in which they were located was not necessarily where they had initially hit the ground. Mr Jackson also said that the position in which a cartridge case first came into contact with the ground was influenced by the manner in which the gun was held — that is, whether it was held in the conventional position or was tilted in some way. Another important factor, he said, was which hand the shooter had used. That was of significance, especially as the evidence indicated that the appellant was left-handed. Furthermore, the cartridge cases were scattered around. It is not inconceivable that at least some of them were inadvertently moved by those police or ambulance officers who initially arrived at the scene at a time when it was still in near total darkness.
179 The opinion of Mr Barber (the appellant's expert) was also based on the assumption that the appellant remained stationary in the one position throughout the incident — namely, the position in which he was found. That is highly unlikely, especially as he was shot no fewer than seven times. That fact alone suggests that he would have moved his position. Indeed, some of the shots were to the front of his body, and others, including one which struck him in the buttock area, clearly hit him from behind. The appellant was, after all, in the process of endeavouring to avoid being apprehended by the police. But, in any event, the appellant conceded in his own evidence that he moved at various stages after having been shot.
180 There are other factors which also need to be considered. Constable Fotopoulos said that he fired at the muzzle fire, because clearly that is what he took to be the position of the shooter. It would have been somewhat remarkable in those circumstances (having fired thirteen shots in all) were he to have failed on any occasion at all to hit the shooter (that is, Rossini on the appellant’s version), but had nonetheless managed inadvertently to have shot the appellant (who, on his own version, was not the shooter) on at least six separate occasions. In any event and without going to the details of it, the evidence of Constable Fotopoulos, and especially that of Constable Patrech (although not without its difficulties), was capable on its own of establishing that the appellant was the shooter. Although neither of them was able to give direct evidence that the appellant was the shooter, such an inference was undoubtedly open — particularly as each of them was aware of there being only one person on the tennis court at the time of the shooting, or indeed at any subsequent time.
181 The material now put forward by Mr Barber on behalf of the appellant in that context does not persuade this Court that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant in the present trial had the fresh evidence from Mr Barber been before it. One other feature of the case should be referred to. The appellant conceded in his evidence in the White City trial that he had been in possession of a loaded weapon during the course of the incident which led to his arrest. He maintained, however, that he had discarded it before climbing over the fence. In the circumstances, it would have been forensic folly of the highest order to seek to introduce all of this highly prejudicial material at any retrial in the Five Dock matter, even if Mr Barber’s report had been available. No competent counsel would have contemplated doing so or would contemplate doing so in the event of a new trial being ordered.
183 Accordingly the appeal against conviction is dismissed.182 Ground 6 is not made out.
Appeal against sentence184 The sole complaint made in relation to sentence relates to the life sentences which were imposed for the murders of Adam Wright and Michael Hurle. The complaint is that the sentencing judge erred in finding that each killing was inflicted with an intention to kill. In essence, it is contended that it was not open to the sentencing judge to find to the requisite standard that the appellant acted with that intention as distinct from an intention to inflict grievous bodily harm.
186 To place the present complaint in context, it is necessary to make reference to the detailed findings which were made by the sentencing judge. The judge’s conclusions appear in the following passages of his Remarks on Sentence:185 The principles governing the determination of the relevant facts by a sentencing judge were carefully considered by a five-judge Court of Criminal Appeal in Regina v Isaacs (1997) 41 NSWLR 374 at 377-380. It is the duty of the judge to determine the facts relevant to sentencing for him or herself. The judge is not to attempt to divine the facts found by the jury as the basis of their verdict. The facts found by the judge must nevertheless be consistent with the jury’s verdict, and the judge must be satisfied of those facts beyond reasonable doubt. They need not be the facts most favourable to the accused, provided that such a degree of satisfaction has been reached. The approach to be taken by this Court towards the facts found by a sentencing judge is uncontroversial.
187 The judge then referred to the case put forward on behalf of the appellant at trial and to the fact that he had called evidence in support of an alibi. He described that evidence as “incredible”. The judge continued:
[15] Each of the shootings of Mr Wright and Mr Hurle involved a shot being fired at close range to the central part of their bodies. I find each killing was inflicted with intent to kill deliberately formed and in each case carried out with appalling ruthlessness.
[16] At trial, it was established by the evidence given by an associate of the offender that when the offender and others in a car were passing by a hotel at Five Dock, the witness noticed two persons having an altercation outside the hotel. He made a remark to those persons which caused one of them, the victim Mr Singleton, to come over to the car which was in the vicinity of the footpath on which the altercation was taking place, and attempt to punch the witness. Thereafter, the offender left the car and shot Mr Wright and Mr Hurle. He also shot Mr Singleton in the shoulder seriously wounding him.
[17] Other eyewitness accounts from people who had been at the hotel or who were passing by, were understandably somewhat chaotic about these events and their order. But it is clear that these events occurred within a very short space of time. I treat them as one closely related series of offences escalating the culpability of the individual offences.
[18] There was evidence from the associate, which I accept, that following the shooting of Mr Singleton, the offender pointed the gun at Mr Singleton and attempted to fire it again a number of times, but the weapon did not discharge. The accused said, "I ran out of bullets". When it was indicated that there was another firearm in the car he said, "why didn't you tell me". According to the associate, as the offender and the other occupants of the car were fleeing from the scene of the shooting, the offender said words to the effect, "As long as we are all right, fuck everyone else. Fuck the Aussies, as long as we're all right. If it happened again I would do the same thing, as long as we're all right".
[19] Counsel for the offender submitted I should treat these statements as mere gangster's braggadocio and not as serious statements. I regard those statements both as braggadocio and as seriously meant. This is a matter of importance for sentence since the statements accord with the offender's actions being done in a display to his associates of his willingness and readiness to act publicly with savage and lethal force. The statements confirm that the offender was concerned that what he did was for the benefit of himself and his gang of associates. The relevance of this matter will be further apparent when later in these remarks I turn to Exhibit F tendered by the Crown on the issue of the prospects of rehabilitation.
[20] The party went to Telopea Street, Bankstown where, with the assistance of a group of other persons, an attempt was made to conceal the perpetrator from justice by damaging the car to make it appear that it had been stolen and by disposing of the pistol in question. The offender and the associate concealed themselves in a South Coast holiday house for some time after the events.
[22] I do not take into account those matters as aggravating the offender's guilt, but I reject the entirely cynical submission made on his behalf that because he was, on the fatal night, carrying the gun in connection with his illegal activities concerned with drugs, his punishment for using the gun as he did should be mitigated. It was put that he should be seen as less culpable than someone who had premeditated the killings and who obtained the gun for the purpose. There is no point in such a comparison. It disregards the fact that the offender was carrying the gun to inflict violence whenever he wished and that he had immediate resort to its use when expedient, although the occasion in no way warranted such a response. The very spontaneity of his resort to its use shows culpability of a high order.[21] There was evidence at the trial establishing that the offender had been in possession of that pistol on earlier occasions and had it on the night in question because of his involvement in activities connected with drugs. His counsel placed reliance on that last matter as a circumstance of mitigation.
[26] A substantial attack was mounted in defence of the charge on the reliability and character of the associate. The case was left to the jury as one in which, for there to be a verdict or any verdict of guilty, the jury had to be satisfied of the evidence of the associate beyond reasonable doubt that the offender had performed the three shootings as that witness had related. The jury were so satisfied. I accept the account that witness gave also.
[27] That account establishes that the offender perpetrated an entirely vicious and cold-blooded series of crimes with overwhelming ruthlessness. That ruthlessness accompanied a spontaneous disproportionate response to a situation initially of very limited significance. Rather than consideration being given to detaching those involved from what was a minor altercation by some comparatively innocuous act, the offender chose to use the lethal force he had at his command in the pistol which he carried, to kill those who were in the vicinity and to remove Mr Singleton's impediment to the car leaving by seriously wounding him. There was no suggestion that either of the deceased had given any provocation or presented any danger or impediment to the accused leaving the scene. The actions that were described by the witness enable me to conclude that what the offender did at that time was a considered, ruthless and vicious series of killings coupled with the wounding to which I have referred. The actions were callous in the extreme. They call for an emphasis on the sentencing elements of personal and general deterrence and community protection.
[28] I am satisfied beyond reasonable doubt that following the wounding of Mr Singleton, the offender would have continued to shoot had he been able. I do not conclude that he would have killed Mr Singleton or attempted to kill him since the offender was not charged with those offences. But I consider these actions, what he said after the offences and his efforts to avoid detection as giving context to the offences proved against him and as relevant to his dangerousness and the prospects of his rehabilitation or recidivism and as important in deciding what is necessary for the protection of the community.
[29] The offences were callous and calculated. They showed a high degree of heinousness and an absence of mitigating features, particularly when one considers the offender's words and actions both immediately and shortly after the event. The offences of murder and that of malicious wounding with intent to cause grievous bodily harm were plainly within the "worst class of case" contemplated by the legislature as punishable by the maximum sentence.
[31] The Crown submits that:-[30] Further, he has not only shown no contrition, but before me on sentence volunteered that he disclaimed any.
The offender displayed an appalling indifference to human life and suffering and a cold-blooded callousness. His indication that he would act the same way again in similar circumstances raises concerns about whether he poses a continuing danger to the community.
[32] I agree.
189 Having indicated that he would reject as completely self-serving the remaining statements which were made by the appellant and which appeared in the psychologist’s report, the judge continued:188 The appellant was 26 years old at the time of sentence. At the time of these offences he had an insignificant criminal record. There was tendered on his behalf a report from a psychologist, Terry Kerby-Smith. It would appear from the report that the applicant had had an unremarkable upbringing. Moreover, he had had educational opportunities which included attending university. At one stage, he had aspirations of joining the Australian Federal Police. Subsequently, he found employment in the computer business.
[...]
[45] The present offender does not apparently have those psychological or personality defects. His actions and his subsequent conduct show he too is dangerous. There appears to be nothing which warrants treatment. There is every indication that the offender is not prepared, whilst in custody, to work towards rehabilitation from the commission of these offences (see Exhibit F). This arises not from lacking insight, but from his denial of any criminality. There seems little prospect while things remain thus, of rehabilitation or of avoiding recidivism. I see no prospect of change.[44] In Regina v Barac [1999] NSWSC 61, in the context of a submission by the Crown that the life sentence should be imposed, I considered the psychological and personality defects of the prisoner as might go to show dangerousness. In that case I was not satisfied of the circumstances of heinousness or aggravation such as is discussed in Garforth (supra) and Regina v Twala (CCA, unreported 4 November 1994). I did, however, conclude that the prisoner was dangerous. That conclusion, had I concluded that the level of culpability in the commission of the offence was as extreme as s 61 of the Crimes (Sentencing Procedure) Act 1999 requires, would have meant that the community interest in retribution, punishment, community protection and deterrence could only have been met by the imposition of the life sentence. In that case, I concluded that, with appropriate treatment, there was a prospect that the prisoner's behaviour might be modified and that he was prepared, whilst in custody, to work towards rehabilitation.
[47] I have concluded that these killings, the culpability for which is not to be diminished by the fact that there are two of them, are, in my view, in the worst class of case. They are, in my view, at a level of culpability about which s 61(1) speaks. I have come to that conclusion when evaluating the circumstances of each crime and I further conclude that the offender exhibits such a degree of dangerousness that, had I been in any doubt, that fact would have led me to conclude that the level of culpability required the life sentence, since the community interests referred to in s 61(1) could only have been met through the imposition of that sentence.
[...]
[50] As to the circumstances of the offence, the submission that this crime is insufficiently heinous (see Garforth (supra), Twala (supra) and Harris (supra)), in that other crimes of multiple killing, of contract killing or killing after extended torture are of extreme heinousness, fails to deal with the ruthlessness and callous attitude to human life displayed by the offender.
[52] The youth of the offender is, of course, entirely relevant to whether the community should for the rest of the offender's life be protected from him. The legislature has chosen to provide for a life sentence in the absence of any possible consideration for parole in the circumstances where the culpability of the offender's behaviour as judged now appears to require the community to be protected from him for the rest of his days. […] I am firmly of the view that, having regard to the multiplicity of offences, the two killings, in the context of the wounding of Mr Singleton, and also the total culpability of the offender for the three offences, the sentence of life imprisonment for each of the murders is the only appropriate sentence.[51] As to the circumstances of the offender, the only one which speaks in his favour on analysis, is his youth. But that as with prospects of rehabilitation is not critical ( Garforth (supra)). Section 61(1) does not provide a less or more stringent criterion dependent on age.
190 It may be accepted, as counsel submitted, that there was no direct evidence as to the appellant’s state of mind. Accordingly, the sentencing judge’s conclusions depended on the drawing of inferences and, as already stated, the judge had to be satisfied beyond reasonable doubt that the appellant discharged the weapon with an intention to kill before he could sentence him on that basis. In those circumstances, the required inference had to be the only rational or reasonable inference available from the evidence: Knight v The Queen (1992) 175 CLR 495 at 502-503, 509-510.
191 The issue here differs from the issue which arose earlier in relation to whether there was a viable case of manslaughter to be left to the jury (see pars [94]–[98] supra ). In relation to that issue, the inferences available in relation to the elements of manslaughter had to be viewed in relation to certain findings of fact which were open to the jury on the evidence. There, it was necessary to consider only those available findings of fact which made a verdict of manslaughter open to the jury on the evidence, ignoring any evidence which tended against those findings being made which it was open to the jury to reject. The issue here also differs from the next issue which arose earlier, as to whether the absence of such an alternative verdict led to a miscarriage of justice (see pars [101]–[102] supra ). There, it was necessary to consider whether, in the light of all of the evidence (including the evidence which tended against those findings being made), the appellant lost a real chance of being found not guilty of murder but guilty of manslaughter. Here, the judge has made findings of fact. Assuming for the moment that these findings were open to him on the evidence, the issue is not whether the finding of intent to kill was open to the judge, but rather whether, based on the findings he made, the inference he drew was the only rational and reasonable one available.
192 The judge accepted the evidence of Rossini as to the actions by the appellant in discharging the weapon and as to the statement made by the appellant in the motor vehicle as they escaped from the scene. It was open to him to do so on the evidence. It was also open to him to accept the evidence of other eyewitnesses as to the actions of the appellant and, specifically, the number of shots fired and the rapidity of those shots. The ballistics evidence is also of particular importance, in that it demonstrated that the appellant discharged the weapon when it was directed at vulnerable parts of the bodies of the two deceased and Ronald Singleton, from very close range so far as two of them are concerned. He was entitled to reject the slender evidence of a struggle between the appellant and Michael Hurle.
194 This Court is not persuaded that the challenge to the sentencing judge’s finding has been made good. Accordingly leave to appeal against the sentences imposed is granted but the appeal is dismissed.193 This Court is satisfied that the only rational or reasonable inference from the actions of the appellant, the ballistics evidence and the subsequent statement of the appellant — when taken together — was the inference which the judge drew, that the appellant acted with an intention to kill.
195 The following orders are made:
Orders
1. The appeal against conviction is dismissed.
2. Leave to appeal against the sentences imposed is granted, but the appeal is dismissed.
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