R v Katarzynski - [2005] NSWCCA 72

No judgment structure available for this case.

CITATION:
Regina v Katarzynski [2005] NSWCCA 72
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 February 2005

JUDGMENT DATE:

9 March 2005

JUDGMENT OF:
Spigelman CJ at 1; Sully J at 2; Kirby J at 82

DECISION:
Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence allowed; sentence imposed at first instance quashed; appellant sentenced to imprisonment for 20 years to comence on 6 April 2001 with a non-parole period of 15 years to commence on 6 April 2001 and to expire on 5 April 2016, upon which date appellant eligible for release to parole.

LEGISLATION CITED:

Crimes Act 1900 (NSW)

CASES CITED:
Royall v The Queen [1990] 172 CLR 376
Murray v The Queen [2002] 211 CLR 193
Ryan v The Queen (1967) 121 CLR 205
La Fontaine v The Queen [1976] 136 CLR 62
Parker v The Queen [1963] 111 CLR 610
Reg v Kirkham (1837) 173 ER 422
Reg v Duffy [1949] 1 All ER 932

PARTIES:
Regina
Kirstaen William KATARZYNSKI

FILE NUMBER(S):
CCA 2004/1667

COUNSEL:
D. Frearson SC - Crown
T. Game SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
M. Rumore - Appellant

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70013/02

LOWER COURT JUDICIAL OFFICER:
Howie J

- 16 -

2004/1667

SPIGELMAN CJ
SULLY J
KIRBY J

9 March 2005

REGINA v Kirstain William KATARZYNSKI

Judgment

1 SPIGELMAN CJ: I agree with Sully J.

SULLY J:

Introduction

2 In June and July 2002 the appellant, Mr. Katarzynski, stood trial before Howie J and a jury. He was tried upon an indictment charging him with having murdered, on 6 April 2001 at Liverpool, one Benjamin Hillier. The jury found him guilty of that crime; and on 3 October 2002 Howie J sentenced him to imprisonment for 24 years with a non-parole period of 18 years.

3 The appellant now appeals against his conviction; and he applies for leave to appeal against his sentence. It is appropriate to note at once, and without constant repetition hereinafter, that the appellant was represented at trial by counsel of wide experience in the conduct of defence cases in criminal trials.

4 The competing cases at trial are summarised helpfully and conveniently, and as follows, in the remarks on sentence:

“On the evening preceding the shooting the offender had been drinking alcohol at the Collingwood Hotel, Liverpool. During the evening he became friendly with a number of persons earlier unknown to him including Mr. Fabian, a witness who gave evidence at the trial. In the early hours of 6 April his brother, Paul Katar, joined the offender at the hotel. By about 2 a.m., when the deceased and the offender first came into conflict, the offender was heavily intoxicated. He later told police that he had drunk somewhere between 10 to 20 drinks of Bourbon and coke. Another witness, who had been in his company through the evening, indicated that the number of drinks consumed by the offender was between 15 and 20.

The deceased was also drinking at the hotel, having gone there after he had completed work. He was in the company of his brother who had been at the hotel for some hours and was well intoxicated at the time of the incidents that gave rise to the killing of the deceased. Also present at the hotel was the deceased’s aunty, Ms Vicki Buggy. At some stage Ms Buggy walked through the public bar and passed the table where the offender and his group were sitting. The offender had been making comments to his companions about females as they passed by. On this occasion he made some comment of an indecent nature concerning Ms Buggy.

The deceased became aware of this incident and took offence. He confronted the offender and his group in the public bar and berated them for their conduct. During the course of his haranguing of the offender, he threatened violence to both him and members of his group. However, the deceased’s fury subsided and he made some remark that the intoxicated state of the offender was probably the cause of his bad behaviour. There was evidence that towards the end of this confrontation the deceased had attempted to shake the offender’s hand but the offender had declined the offer.

This incident passed without any actual violence being used by any of the persons involved. The deceased then rejoined his brother and the offender left the hotel for a short period.

When the offender returned to the hotel he went with his brother into the gaming room as the public bar had closed. They sat talking to each other against one of the walls of the gaming room about the earlier incident when again the deceased approached them. For some reason his anger with the offender had been reignited. The deceased violently pushed the offender or head-butted him against the hotel wall. Further violence between the two was avoided when bouncers intervened and restrained the deceased. The offender then left the hotel.

The most significant dispute in the trial concerned what happened thereafter. An important witness in the Crown case was one of the bouncers at the hotel, Mr. Siofele. His account was as follows. As the offender left through the hotel door into the car park, he made a beckoning signal with his hand towards the deceased who, when he had finished his drink, followed the offender outside into the car park. Mr. Siofele immediately followed the deceased out of the hotel sensing that there may be more trouble between the two. When he got outside he saw the offender at the corner of the hotel near the Hume Highway again beckon to the deceased. He also heard the offender whistle to attract the deceased’s attention. The offender then disappeared around the corner. The deceased walked toward the corner of the hotel where the offender had been and when he reached that spot, there were three shots fired one after the other. The deceased doubled over, holding his stomach.

The deceased then returned to the public bar inside the hotel and collapsed to the floor. Despite attempts by persons then present to assist him, the deceased was mortally wounded and he died before arriving at the hospital.

The offender strenuously disputed the account given by Mr. Siofele. It was put to the witness by his counsel that his evidence of seeing the offender beckon to the deceased both at the door of the hotel and at the corner of the car park was untrue and had been fabricated by him. It was also put to him that he had made up his evidence of hearing a whistle from the corner of the hotel as he had never given this account before.

The offender’s version given both to the police and in evidence at the trial was that, after he was assaulted by the deceased in the gaming room, he decided to walk to his home a short distance from the hotel. This was despite the fact that he had driven his brother’s motor vehicle to the hotel and that his brother had ridden a motorbike there intending to exchange the bike for the motor vehicle. The offender’s version was that after he rounded the corner of the hotel and walked down the Hume Highway for a short distance towards his home, he realised that his brother was not with him and was still at the hotel. Being concerned for his brother’s safety, he turned around to return to the hotel. He was then suddenly confronted by the deceased a few paces from the corner of the hotel. The offender said that he then drew from his waist belt a loaded revolver, which he had purchased earlier that night. At the same time he told the deceased to “fuck off”.

The offender’s evidence was that he was holding the weapon at about waist height, pointed across his body and towards the ground. The deceased then lunged towards him with his arms outstretched. The offender moved backwards and, at the same time, he flinched causing the gun to discharge. He told both the police and the jury that he did not mean to shoot the weapon and certainly had no intention of using it to injure the deceased.

Three shots were fired each of which struck the deceased in the torso. One of the bullets entered the deceased’s back and penetrated his heart causing his death. Neither of the other two shots were life threatening, one passing through the deceased’s genital area and the other entered his shoulder lodging beneath the opposite armpit.

Dr. Little who performed the autopsy on the deceased was unable to indicate the order in which the three injuries were inflicted. However, it seems to me that the most likely scenario is that the first shot fired was that which entered the front of the deceased in the area of his genitals and that the other two shots were fired rapidly thereafter, entering the deceased’s body as he turned away from the offender and crouched over as a result of the first injury. If this is so it is likely that it was the third shot fired that killed the deceased.”

5 There are three grounds of appeal against conviction; and a further three grounds founding the application for leave to appeal against sentence.

Conviction Appeal : Ground 1

6 The Ground is:

“The trial Judge erred in his directions on voluntariness, causation, murder by reckless indifference to human life, self-defence and excessive self-defence where the identified basis for primary liability was reckless indifference to human life.”

7 This Ground conflates what are in fact four separate topics about each of which present complaint is made in connection with the learned trial Judge’s directions. It is necessary to look separately at each component part of the Ground.

· Causation

8 It is appropriate to begin the discussion by citing some relevant authorities.

9 In Royall v The Queen [1990] 172 CLR 376, Mason CJ made the following observations upon the topic of causation, albeit the particular case was not a shooting case:

Ryan v The Queen

Ryan

Reg v Crabbe

Ryan

Thus the case was one in which identification of the act causing death required “specific and close consideration”. Yet the directions given to the jury “appeared at times to treat the whole conduct of the applicant from the inception of his exploit as the act causing death”, without descending to particularity: see, generally, per Barwick CJ.

Ryan

10 In Murray v The Queen [2002] 211 CLR 193, five Justices of the High Court of Australia discussed in four separate judgments the topic of causation in the particular context of a death by shooting. The case there in point was not governed, as the present appellant’s case is governed, by the provisions of the Crimes Act 1900 (NSW); but was governed, rather, by the provisions of the Queensland Criminal Code, section 23 of which provided that a person was not criminally responsible for (a) an act or omission that occurred independently of the exercise of the party’s will; or (b) an event that occurred by accident.

11 Four members of the Court, Gaudron, Gummow, Hayne and Callinan JJ, decided the appeal upon the basis that the trial Judge had misdirected the jury on the onus of proof. Kirby J was of the contrary opinion on that particular point. Two members of the Court, Kirby and Callinan JJ, were of the opinion that the trial Judge had erred in not having directed the jury on the topic of unwilled acts as contemplated by paragraph (a), paraphrased above, of section 23 of the Code. Gaudron, Gummow and Hayne JJ were of the contrary opinion on that particular point.

12 Mr. Murray, like the present appellant, had presented a loaded firearm at his victim, allegedly with the sole intention of frightening the victim; but denied having deliberately pulled the trigger.

13 Gaudron J reviewed, inter alia, Ryan (supra), expressly adopting as “legally and logically correct” the analysis made by Barwick CJ in that earlier case. Her Honour thought that it had been incumbent upon the trial Judge to instruct the jury, in appropriate terms, that the jury must decide “ ………… whether the prosecution had excluded beyond reasonable doubt the possibility that the gun had discharged without pressure being applied to the trigger and, also, the possibility that it was discharged by an unwilled reflex or automatic motor action”. Her Honour accepted, however, that the charge to the jury had dealt sufficiently with those points. [211 CLR at pp 199-201 passim]

14 Gummow and Hayne JJ delivered a joint judgment. Their Honours discussed at some length, and as follows, the difficulties that can often beset the identification, in a case of death by shooting, of the actual death-causing act:

Falconer

In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly defined is that “act”, the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the “death-causing act”, the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As H L A Hart pointed out more than forty years ago, a theory which splits an ordinary action into three constituents – a desire for muscular contractions, followed by the contractions, followed by foreseen consequences – is a theory based on a division quite at variance with ordinary experience and the way in which someone’s own actions appear to that person. As Hart said, “The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions”.

Ryan

“The latent time [between threat, or assault, and firing the weapon was in each case] no doubt barely appreciable, and what was done might not have been done had the actor had time to think.”

But to identify the “act” as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant “act” which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant “act” would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences.

Falconer

Mamote-Kulang v The Queen

Timbu Kolian v The Queen

Ryan

Timbu Kolian,

In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily. Approaching the problem in that way may reveal which party must raise the issue to have it considered – the so-called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption.

taken as a whole

15 Kirby J dealt briefly and as follows with the topic of causation:

“I agree with Gaudron J that the identification of what was the relevant “act” and whether it was willed or not were questions for the jury. They were not questions of law for the judge. Even if the final “act” was a reflex action, it only took on its fatal character because of earlier acts of the appellant dangerous to human life. Thus, I agree with Gaudron J that if the jury came to the conclusion that the ultimate “act” that led to the depression of the trigger of the loaded gun pointed at the deceased could be described as a “reflex” act, it was still a question for the jury whether that act was properly to be viewed as having occurred “independently of the exercise of the [appellant’s] will.” [ 211 CLR at 222[89]]

16 Callinan J, the remaining member of the Court, dealt as follows with that topic:

“There will, obviously, be difficulty from time to time in identifying, for the purposes of s 23(1)(a), the relevant act. Equally, from time to time there will be difficulty in determining whether the evidence provides a sufficient basis for a direction as to either limb of s 23(1). But such difficulties do not relieve a trial judge from the necessity of so directing, when required, and, as to the first of them, of identifying, that is to say, effectively isolating what on the evidence is capable of being regarded as the act causing death and as the unwilled act. Everything that has relevantly occurred before it, including the earlier relations between the victim and the accused, and the latter’s acts in placing himself in such a position as to give the “act” the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the “act” itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident).

A defence under s 23(1)(a) does not depend upon proof of, or the possibility of automatism or the like. It is available if the prosecution is unable to prove that the act was not willed, whether the absence of will can be traced to a condition which can be satisfactorily described in medical or psychological terms, or whether it was simply an act neither impelled by the mind nor which the mind endorsed immediately before, or at the time of its occurrence. There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the “act” for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare. The jury in this case would not have been obliged so to regard this case.

Here the relevant act was, as the appellant submitted, identifiable, the discharge of the gun. Everything leading up to that point might have made it unlikely that it occurred as an unwilled act, but as there was evidence that it was, an obligation to give a direction about it by reference to s 23(1)(a) did arise.” [ 211 CLR 235 [148] through 236 [150] ]

17 It seems to me that the foregoing authorities distinguish, in a case of the present kind, between a finding of fact that identifies a death-causing act; and a discrete finding of fact that characterises, as having been either willed or unwilled, the death-causing act that has been so identified. The first of those two discrete findings of fact deals with the topic that the law calls ‘causation’. The second of the two findings deals with the topic that the law calls ‘voluntariness’.

18 In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things;

[1] That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim.

[2] That the identification of any such act was a matter of fact for the jury alone.

[3] That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the evidence at trial.

(a) to identify as the relevant act the firing in quick succession and at close range of three pistol shots, one of them lethal, into the body of the victim; or

19 I would say at once that I should have thought that on the facts of the appellant’s case any normal body of twelve persons would have regarded it as a matter of common sense that the actual death-causing act was the option [4](a) above; and that it was when proceeding to the next step of characterising that act as having been either willed or unwilled, that it would have been entirely appropriate to have had regard to the continuum of conduct commencing with the alleged luring of the victim by the appellant to the location of the shooting.

20 At the appellant’s trial the jury was given written as well as oral directions of law. The jury was instructed in writing that the Crown had to prove beyond reasonable doubt, and among other things, that it had been a deliberate act of the appellant that had caused the death of the victim. That direction was amplified by the following written directions:

“A deliberate act causing death.

21 In the oral directions, the trial Judge instructed the jury at an early point in the summing-up:

“Now there is little doubt that the act, which caused the death of the deceased, was the act of the accused. He discharged the gun and although he can only recall two shots, there seems to be no doubt that he fired three and by all accounts one immediately after the other. But a question arises on the accused’s evidence whether the act causing death was deliberate that is whether he intentionally fired the weapon and in particular whether he intentionally fired the shot that penetrated the deceased’s heart and killed him.”

22 Very shortly thereafter, and having given some oral directions about voluntariness, his Honour gave these directions:

“But just what was the act of the accused which caused the death of the deceased is a matter of fact for you to determine in all the circumstances in which the gun was discharged. You do not necessarily isolate the pulling of the trigger as a separate and distinct act taken out of context and say is that the act which caused the death of the deceased and then ask whether there is any reasonable possibility that was not a deliberate act of the accused. In the present case you know that the accused deliberately took possession of what he knew to be a loaded gun. He says he got it earlier that night when he purchased it from a stranger. He checked that it had bullets in it. He was unaware of whether it had a safety catch or not. He deliberately placed it down the front of his trousers where it remained until he says he was confronted by the deceased outside the hotel. He deliberately withdrew the gun from the front of his pants when he saw the deceased and deliberately presented it to the accused in that he held it in front of him intending, it seems, to use it at least to scare off the deceased. Finally you would consider that three shots were fired each hitting the torso of the deceased. On those facts and that scenario it is for you to determine what, in that context and considering all his actions, was the act of the accused which caused the death of the deceased and whether it was deliberate.

In the circumstances of this case where the accused has deliberately presented a loaded revolver to the deceased in a situation of a possible attack upon him, if you found that the pressing of the trigger as a response to a sudden threat or apprehension of danger was no more than a probable and foreseeable consequence of deliberately presenting a loaded weapon to the deceased you could determine that the discharge of the gun was a voluntary or deliberate act of the accused notwithstanding that he may not have meant to fire it.

Of course we do not know very much about the gun: whether it had a safety catch, whether it was prone to accidental discharge, or the force necessary to pull the trigger. We know that it was, according to the accused, a revolver, and it seems from all the evidence that the shots were fired off in rapid succession. So it is not a case of the weapon having to be reloaded or re-cocked each time. On the other hand according to the accused, the gun was in his waist belt for some considerable time without discharging even though the accused apparently played pool with it there and at one stage was violently pushed or head-butted by the deceased forcing him against the wall of the gaming room.

So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown’s version, a deliberate firing of the weapon? If at the end of the day you find that there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder.

Of course the issue only arises if you find that there is a reasonable possibility that the accused’s version is true.”

23 Later still, and after directing the jury on the topic of murder by reckless indifference to human life, his Honour touched one final time upon the topic of causation, saying:

“Again you are concerned with the state of mind that the accused had at the time he committed the act causing death. Again it is for you to determine what is the act causing death. For example, as I said, if you found that while the deceased was approaching, the accused deliberately pulled out a loaded gun foreseeing that further violence by the deceased would occur and that in such a situation the gun would probably discharge causing the death of the deceased, then subject to self-defence and provocation, the accused would be guilty of murder even though he never intended to cause the deceased’s death and even though when the gun discharged he was not intending to fire it. You should see then how important it is to determine what the act of the accused causing the death is, whether that act was deliberate and what was the state of mind of the accused at that time.”

24 The written submissions of learned Senior Counsel for the appellant, (who was not counsel at trial), make the following complaints about the foregoing directions:

“The first point to be made, then, is that his Honour did not deal with causation conformably with authority on the subject and, effectively, left open the possibility of the pulling of the trigger as the voluntary act causing death even if the pulling of the trigger was, in fact, a “reflex” action. This opened the way for a conviction for murder based on the brandishing of the gun.

In any event, these directions gave no or insufficient attention to the role, or otherwise, in causation, of the acts of the deceased in bringing about the discharge of the firearm, this based here on the appellant’s account outlined above.”

25 I do not agree with those submissions. It is, I apprehend, a fair comment that the summing-up does not deal in a precisely discrete way with the separate topics of causation and voluntariness; but that is not a fatal flaw in the summing-up provided only that what was in fact put to the jury about causation was sufficient to bring the minds of the jurors to the issues that I have outlined at paragraph 17 above. In my opinion, the directions given in fact on the topic of causation satisfy that proviso. There was at trial no submission to the contrary.

· Voluntariness

26 The relevant written directions have been quoted earlier herein: see paragraph 19.

27 The relevant oral instructions began thus:

“In effect what the accused seems to be saying is that although he intentionally removed the gun from under the front of his pants and intentionally presented it towards the deceased intending at least to scare him away, he did not deliberately point it at him or pull the trigger. He said that, as a reaction to the deceased lunging towards him, he flinched automatically and the gun discharged. In effect he is saying that the pulling of the trigger was not a deliberate act of him; it was involuntary without any thought at all let alone the intention of firing the weapon.

Well if there is a real possibility that the shot that killed the deceased was discharged by an involuntary, unintended act of the accused then it was not a deliberate act of him. In other words he did not deliberately discharge the weapon and he cannot be guilty of murder. An involuntary reflex action is not a deliberate act and cannot by itself be the basis of criminal liability.”

28 These directions were followed immediately by the directions that are quoted previously herein and at paragraph 21.

29 Thereafter his Honour said:

“So you look at all this material and decide what was the act of the accused which caused the death of the deceased: was it merely the unintentional pulling of the trigger or was it a more complex and composite act involving a number of steps deliberately taken by the accused which ended with the sudden and unexpected discharge or, on the Crown’s version, a deliberate firing of the weapon? If at the end of the day you find that there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary such as a reflex action, then the accused is not guilty of murder.

Of course the issue only arises if you find that there is a reasonable possibility that the accused’s version is true. Of course the Crown says that you would reject this version in light of the fact that the accused fired three shots all of which hit the deceased in the torso. Whether the issue arises at all might depend to a large extent upon what other facts you find proved by the evidence. For example if you were satisfied beyond reasonable doubt of the evidence of Mr. Siofele, that is, of the accused beckoning or even whistling from the corner of the hotel then the issue may not arise because a completely different complexion might be placed upon the firing of the weapon than that given to it by the accused. Even if you were satisfied beyond reasonable doubt that the deceased never went around the corner it may follow that you would reject the accused’s account of the manner in which the gun discharged. In such a case you might find that all the actions of the accused were deliberate including the firing of the shot that killed the deceased.”

30 I can see no error in these directions. There was at trial no submission to the effect that there was any such error. The directions seem to me, with respect, to put clearly and succinctly the approach that was put by Windeyer J in Ryan (supra) in terms which I apprehend to stand as good law and to be, if I may respectfully say so, lucid common sense:

Reflex Action, a Study in the History of Physiological Psychology

The conduct which caused the death was of course a complex of acts all done by the applicant – loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal. When this was said to be a reflex action, the word “reflex” was not used strictly in the sense it ordinarily has in neurology as denoting a specific muscular reaction to a particular stimulus of a physical character. The phrase was, as I understood the argument, used to denote rather the probable but unpredictable reaction of a man when startled. He starts. In doing so he may drop something which he is holding, or grasp it more firmly. But assume that the applicant’s act was involuntary, in the sense in which the lexicographers use the word, would that, as a matter of law, absolve him from criminal responsibility for its consequences? I do not think so. I do not think that, for present purposes, such an act bears any true analogy to one done under duress, which, although done by an exercise of the will, is said to be involuntary because it was compelled. Neither does it, I think, bear any true analogy to an act done in convulsions or an epileptic seizure, which is said to be involuntary because by no exercise of the will could the actor refrain from doing it. Neither does it, I think, bear any true analogy to an act done by a sleep-walker or a person for some other reason rendered unconscious whose action is said to be involuntary because he knew not what he was doing.

Bratty v Attorney-General for Northern Ireland

passim

· Reckless Indifference to Human Life

31 The idea that murder by reckless indifference to human life should be left at all to the jury was raised by the trial Judge during interchanges with both counsel prior to the commencement of final addresses. His Honour asked the Crown Prosecutor whether he was proposing to rely on reckless indifference. The Crown Prosecutor took time to consider his response; and in due course informed his Honour that the Crown did wish to have a reckless indifference option left to the jury. There ensued a deal of discussion, the upshot of which was an indication by his Honour that he was inclined to deal with the issue by a direction to this effect:

“I think realistically the intention here is, did he intentionally fire the weapon at least in the vicinity of the deceased? I am prepared to go that far and perhaps leave reckless indifference on the basis that he intentionally discharged the firearm in the vicinity of the deceased, and that they saw that that was an act which he foresaw which probably would result in death or whatever the words exactly are.”

32 Trial counsel for the appellant said that he would consider further that proposal. His Honour said that, without finally ruling upon the issue, he would permit the Crown to address upon the issue, and then see how things developed.

33 The closing address of the Crown was then presented. During the address the Crown Prosecutor said this:

“The Crown submits an alternative case also, members of the jury, you would find that the accused intentionally discharged the firearm in circumstances where he foresaw the possibility of death resulting, even if he didn’t intend really serious bodily harm or death to result. It is clearly shown the firing of the firearm was deliberate; intentional and the firing of the three rounds, the Crown submits, would prove that he foresaw the probability of death resulting. That is the alternative basis, members of the jury.”

34 Almost immediately thereafter the Crown address concluded. Thereupon, and with the express concurrence of the appellant’s trial counsel, his Honour gave the jury a detailed outline of the basic legal principles relevant to the possible alternative verdicts that would be open to the jury. During the course of that outline, which his Honour emphasised clearly was not a substitute for the directions that would be given in the summing-up proper, his Honour told the jury this:

“Once the Crown Prosecutor has proved to you beyond reasonable doubt that the weapon was discharged intentionally by the accused wishing to project a bullet out of the gun, then the Crown in order to prove murder has to prove to you that when he did fire the gun he intended to either kill the deceased or inflict really serious harm upon him or that he did so without either of those intentions but foreseeing, that is actually having in his mind at the time he fired the gun that by doing that the death of the deceased was a probability, foresaw the probability of death resulting from his act and that’s what the Crown called, I think, reckless indifference to human life. So that’s what is to be proved for murder.”

35 At the conclusion of the outline his Honour asked both counsel whether they had any objection to what had been said in the outline; and both counsel replied in the negative.

36 Shortly thereafter the defence address was presented. It invited either an acquittal on the charge of murder or “an alternative verdict”. The basic stance of the defence could not have been put more clearly or more succinctly than was done in this submission, which was made very early in the address:

“They have to prove beyond reasonable doubt that this accused on this early morning shot the deceased with intent to kill him.”

37 The topic of murder by reckless indifference to human life was the subject of both written and oral directions. The written directions were:

the accused

38 Of the oral directions it suffices to refer to the following directions, the first passage being taken from page 23 of the summing-up and the second passage being taken from page 48 of the summing-up:

“Again you are concerned with the state of mind that the accused had at the time he committed the act causing death. Again it is for you to determine what is the act causing death. For example, as I said, if you found that while the deceased was approaching, the accused deliberately pulled out a loaded gun foreseeing that further violence by the deceased would occur and that in such a situation the gun would probably discharge causing the death of the deceased, then subject to self-defence and provocation, the accused would be guilty of murder even though he never intended to cause the deceased’s death and even though when the gun discharged he was not intending to fire it. You should see then how important it is to determine what the act of the accused causing the death is, whether that act was deliberate and what was the state of mind of the accused at that time.”

“What I was trying to stress to you was the importance of determining in all of the circumstances what was the act which caused the death of the deceased and as I tried to indicate to you it is not necessarily the pulling of the trigger because as you look at it you might find in relation to all of the acts taken by the accused in relation to that gun, that is the deliberate acts that the act of the accused which caused the death is not limited to just pulling the trigger. And if you found that the accused presented the gun, as I use that term, with intention of using it to kill the deceased or inflict serious injury upon him or indifferent to whether or not the gun went off and would probably kill the deceased then you could find that that was the act causing death and that the accused was guilty of murder even though you may be left with a doubt as to whether the shot which actually killed the deceased went through his heart as a result of a reflex action.”

39 There was at trial no application for re-directions.

40 The appellant submits that murder by reckless indifference ought not to have been left at all. Ground 2 in the conviction appeal raises in terms that proposition. In my opinion it is unnecessary to travel, in search of a correct answer, beyond the following passage in the judgment of Barwick CJ in La Fontaine v The Queen [1976] 136 CLR 62 at 70:

[in the given circumstances of that case of which one was the very close proximity of the victim to the shooter]

41 There was, in my opinion, abundant evidence available to the jury from which the jury could reasonably find beyond reasonable doubt that the appellant had fired in quick succession three pistol shots, one of them fatal, in the direction of the victim. The appellant, when his own evidence is looked at fairly, did not ever suggest that he had not in fact actually fired the shots. His case was that the shots had been fired involuntarily because of a reaction that he could only describe, insofar as he admitted to any real recollection of the relevant details, as having been a “flinching” movement which caused the firearm to discharge; and that he had never intended to kill, or even seriously to wound, the victim. He made no case of some latent defect in the firearm. He did not dispute that the victim had been very close to him at the time when he produced, presented and fired the firearm. His consistent case was that his sole intent had been to frighten the victim.

42 In my opinion such a concatenation of facts and circumstances can be said fairly to have courted a reckless indifference direction.

43 I would not uphold Ground 2 of the conviction appeal.

44 As to the directions in fact given upon the topic of murder by reckless indifference, I see no error in them.

45 It is submitted for the appellant that the earlier of the two passages previously quoted entailed a misdirection in that there was no evidence to support a proposition that the “pulling out” of the firearm with foresight of its unintentional discharge was an available basis for a finding of murder by reckless indifference.

46 I do not agree: first, because even if there were the suggested error at page 22 of the summing-up, - and I do not see it, - then it was amply corrected by the later directions at page 48 of the summing-up, directions which both counsel expressly accepted as adequate and correct; and secondly, because the evidence as I have summarised it in paragraph 3 was in my opinion ample to support a finding of a deliberate act causing death in fact; and being an act done in circumstances amounting to reckless indifference in the requisite legal sense.

· Self-defence and Excessive Self-defence

47 The complaint now made by the appellant about the directions given on this particular topic is, essentially, a complaint that the directions did not sufficiently reinforce earlier directions about murder by reckless indifference. The directions ought to have told the jury in a particular way, so the submission runs, that if the jury found reckless indifference manifested, not by the pulling in three quickly successive actions of the trigger, but by the antecedent production and brandishing of the firearm, then it was that antecedent act of production and brandishing to which, in the most carefully particular sense, the self-defence directions of law had to be applied.

48 The trial Judge, conformably with the consistent method employed in the framing of the summing-up, gave the jury careful written instructions. It was not submitted at trial, and I do not understand it to be submitted to this Court, that any part of those directions was wrong in law.

49 His Honour, with a like conformity, spoke to the bare written directions. It is unnecessary to quote at length from the oral directions. The point to be made about them, - and it is a point which answers, in my opinion, the appellant’s present submissions, - is that from first to last the directions make plain that the practical application of the directions by the jury must be related, not to some hypothetical death-causing act, but to some particular such act or acts that the jury would necessarily have already found to have been demonstrated in fact by the whole of the relevant evidence.

50 I see no error in this approach. No submission to the contrary was made at trial.

51 For the whole of the foregoing reasons I would not uphold Ground 1 of the conviction appeal.

Conviction Appeal : Ground 3

52 The Ground is:

“The trial Judge erred in his directions on provocation.”

53 There were extensive directions both written and oral. Two complaints are made about them: first, that they “elaborated the requirements of loss of self-control in provocation to a standard substantially higher than that required by section 23 of the Crimes Act”; and secondly, that there was repeated use of the word “would”, when the correct usage would have been “could”; attempts to correct that error being themselves erroneous.

54 The gravamen of the first complaint is that the directions referred repeatedly, as they certainly did, to a proposition that implicit in the legal concept of mitigating provocation was the notion of a loss of reason. It is submitted that the only requirement is that of a loss of self-control.

55 In my opinion the answer to the complaint is that for many years appellate Courts of the highest authority have employed the language of loss of reason in the sense of a temporary suspension of the capacity for detached rational analysis and judgment. The judgments in the High Court in Parker v The Queen [1963] 111 CLR 610, and the subsequent advising of the Privy Council, reported at 111 CLR 665, provide sufficient examples.

56 In the High Court, Menzies J quoted with approval from the judgment of Coleridge J in Reg v Kirkham (1837) 173 ER 422 a reference to a provocative act, the response to which “was done in a moment of overpowering passion, which prevented the exercise of reason”: 111 CLR, 642; while Windeyer J quoted with approval a well-known reference in East’s Pleas of the Crown to a provocation such as might “in human frailty heat the blood to a proportionable degree of resentment and keep it boiling to the moment of the fact: so that the party may rather be considered as having acted under a temporary suspension of reason than from any deliberate malicious motive”: 111 CLR, 652. Note also Windeyer J’s citation with approval of the statement of Lord Goddard in Reg v Duffy [1949] 1 All ER 932 about “a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not master of his mind”; and Windeyer J’s own description of “an uncontrolled, unreasoning and impulsive act”: 111 CLR, 652, 653.

57 The advising of the Privy Council described “(s)omething which is done ‘suddenly’ and ‘in heat of passion’ caused by provocation ……… (that) ……. is, as it were, something done automatically or impulsively and at a time when there is temporary suspension of reason: an act so done is not controlled or planned or preconceived or deliberate”: 111 CLR, 680, 681

58 Having read and considered the directions given in the present case, I am satisfied that the trial Judge did not overstate the relevant legal concept and requirements.

59 As to the second complaint, it is convenient to begin the discussion of it by noting that there were handed to the jury at two separate times two separate sets of written instructions upon the topic of provocation. They were marked for identification 6 and 8. MFI 6 uses consistently the word “could”; and in one instance the expression “could possibly”, (original emphasis). MFI 8 contains these references: “a reasonable possibility that the conduct of the deceased so affected the accused …………… “; “………a reasonable possibility that the accused acted under provocation ……….”; “…………the possible effect of the provocation.”; “………….how a sober person of the accused’s age and sex might possibly have reacted ………….”, (original emphasis); “……….. no possibility that the ordinary sober person in the position of the accused and provoked as he was could have so far lost his self-control …….”.

60 [It should be noted that in the last of those examples, MFI 8 originally read “would” instead of “could”. Trial counsel for the appellant was content with the document in that form. The Crown Prosecutor suggested that the correct word was “could”; his Honour agreed, and thereupon struck out the letter “w” and wrote in the letter “c”, so that the jurors were on quite specific notice that “would” was incorrect, and that “could” was correct.]

61 It is true that at various times during the course of oral directions his Honour said “would” instead of “could”; although it is equally true that his Honour also used such expressions as “could possibly” or “might possibly”.

62 MFI 8 was given to the jury as part of supplementary directions, both oral and written, given in response to a jury question. Trial counsel for the appellant specifically raised no objection to its contents.

63 I am of the opinion that the contents of MFI 8 in particular, but even more so those contents when read in conjunction with the contents of MFI 6, correctly instructed the jury; and sufficiently corrected the undoubtedly erroneous occasional oral use of “would” instead of “could”.

64 I would not uphold Ground 3 of the conviction appeal.

65 For the whole of the foregoing reasons, I would dismiss the appeal against conviction.

Sentence Application

66 The Grounds as formally notified are:

(a) The sentence is manifestly excessive;

(b) His Honour erred in his determination of facts for the purpose of sentencing;

67 The Grounds can be fairly dealt with together.

68 His Honour’s first task in the sentencing process was to assess the objective criminality of the shooting. His Honour was entitled to make his own findings of fact in that connection, provided that any such finding adverse to the appellant was reached beyond reasonable doubt; and provided further that any such finding was consistent with the verdict of the jury.

69 The verdict of the jury necessarily entailed that the jury was satisfied beyond reasonable doubt that the appellant had by his voluntary act caused the death of the victim; that the appellant had not acted in reasonable self-defence; and that the appellant’s act was not mitigated by provocation.

70 His Honour made a careful survey of the objective facts and circumstances. He concluded:

“In my view, the evidence indicates that, rather than acting in self-defence, the offender lured the deceased to the spot where he waited in ambush to shoot him. I am satisfied beyond reasonable doubt that the offender deliberately fired three shots into the body of the deceased. In those circumstances and notwithstanding his intoxicated state, I have no doubt that he fired the gun with the intention of killing the deceased. It is thus a serious case of premeditated murder.”

71 His Honour accepted “that the deceased was the aggressor on this particular night and used his height and weight advantage to intimidate the offender and his companions”. This was, in my view, a finding apt to mitigate the objective criminality of the shooting; but the extent of any such mitigation could not be very great in the light of the overall findings of his Honour as to objective criminality.

72 His Honour expressed the view, with which I respectfully agree, that a proper sentence “must denounce the use of violence in public, particularly where it involves a loaded firearm, and it must attempt to deter other persons who feel offended by the conduct of others from taking action of a similar nature in retribution or revenge”.

73 When his Honour came to assess the appellant’s subjective case, he began his survey of that case by saying that “there is nothing in the subjective circumstances of the offender that can mitigate the offence”. I read that statement literally: that is to say, as conveying that the relevant subjective considerations could not mitigate the objective gravity of the offence, as distinct from their potential to mitigate what would have been in their absence a proper sentence.

74 His Honour’s survey of the appellant’s relevant subjective characteristics occupies paragraphs 29, 30 and 31 of the remarks on sentence. It is not necessary to repeat them. They were indicative of, generally speaking, “an honest and worthwhile life”; reasonable domestic stability; familial support; and at least a measure of genuine remorse.

75 His Honour was not persuaded to find special circumstances, for the reasons expressed in paragraph 33 of the remarks on sentence, with which reasons I respectfully agree.

76 Having read and considered the remarks on sentence, I am unpersuaded that any overt error has been demonstrated. It follows that this Court cannot properly disturb the sentence unless the Court is persuaded that there has been covert error in the sentencing process. That entails a consideration of the question whether the sentence as it stands is so plainly out of kilter with properly comparable sentences as to warrant a conclusion that some more lenient sentence is warranted in law.

77 In considering that question I have kept in mind the well-settled and very important principle that this Court should never interfere lightly with a sentence because of a perception of covert error. The Court does not have in the present case the assistance of the usual Judicial Commission statistics, albeit that their practical utility is indicative rather than prescriptive.

78 I have to say, however, that the more I have thought about the matter the more insistently have I felt a nagging concern that the sentence as it stands does not allow adequately for the finding, with which I respectfully agree, that the victim was “the aggressor on this particular night and used his height and weight advantage to intimidate the offender and his companions”.

79 That consideration cannot possibly excuse the shooting; or simply explain away the undeniable gravity of the shooting. I cannot help but feel, however, that a head sentence of 24 years passed upon a comparatively young man of some 33 or 34 years of age does not manifest any real mitigation of the relevant objective criminality, when some prudently restrained such mitigation would be just by reason of the findings as to aggression and intimidation on the part of the victim.

80 I have come, therefore and not without real hesitation, to the conclusion that the substitution by this Court of a head sentence of 20 years and an accompanying non-parole period of 15 years is warranted in law.

Orders

81 I propose:

[1] that the appeal against conviction be dismissed;

[2] that leave be granted to appeal against sentence;

82 KIRBY J: I have had the advantage of reading the judgment of Sully J in draft. I agree with the orders proposed, generally for the reasons provided by his Honour. I should, however, comment upon Ground 1.

83 In respect of the elements of murder, and leaving aside self defence and provocation, the facts gave rise to three issues:

· First, what was the cause of death?

· Secondly, whatever the cause, was it the act of the accused? It was not relevantly the act of the accused unless it was deliberate.

· Thirdly, if it was the act of the accused, was it carried out with an intent to kill, or cause grievous bodily harm, or with reckless indifference?

84 On the Crown case, there really was no issue of causation, voluntariness or intention. An eyewitness, the bouncer at the hotel, described the way in which the appellant beckoned the deceased to a spot where he waited in ambush to shoot him. He fired three shots at close range one after another. All caused grievous injury. One was fatal. The eyewitness account was, to some extent, corroborated by other witnesses. The appellant's brother was also called by the Crown. He said that the appellant was "irate" immediately after the incident. The appellant said, referring to the victim: "Fuck him. He shouldn't have fucked (with) me" (T144). On any view it was a strong Crown case.

85 Mr Katarzynski gave evidence. He provided an alternative version. He said that as he returned to the hotel he was confronted by the deceased. He drew from his waist band a revolver, which he knew to be loaded. At the same time he told the deceased to "fuck off". He was holding the weapon at about waist height, pointed across his body towards the ground. Suddenly the deceased lunged at him with his arms outstretched. The appellant said that he moved backwards. At the same time "he flinched causing the gun to discharge". He said to the police, and repeated to the jury, that he did not mean to shoot the weapon and certainly did not intend to injure the deceased.

86 That version involved the difficulty, amongst others, that his explanation, at best, raised issues in respect of the first shot. When cross examined he said this: (T265)

87 Although the Crown could not say which, in the sequence of shots, was the fatal shot, the shots were, as mentioned, fired in quick succession. One would infer that each required pressure on the trigger of the revolver.

88 The submissions that have been made in respect of the directions given in the course of the summing up are really all directed at the first shot, said to be the consequence of the appellant flinching. On that issue, his Honour gave the jury the following direction: (SU 19)

"If at the end of the day you find there exists a reasonable possibility that the act which caused the death of the deceased was not deliberate but was unintended and involuntary, such as a reflex action, then the accused is not guilty of murder."

89 That direction drew the jury's attention to the fundamental issue which it needed to consider on the issue of voluntariness. In the context of three shots in rapid succession, the directions which are now suggested, depend upon a refinement of the act causing death, which may be thought artificial. In Ryan v The Queen (supra) referred to by Sully J (supra para 30), Windeyer J identified the submission which the Court was then considering in these words: (at 243)

"However, before us the case was presented in a different way. What was urged is that the defence was really that the applicant did not voluntarily press the trigger: and it is said that this aspect was not presented to the jury. The event, it is now said, should be analysed as follows: The prisoner had the firearm pointing towards the man; his finger was on the trigger; the man suddenly moved; the prisoner was startled; he involuntarily pressed the trigger. I have no doubt that the words 'accidental', 'accident', 'unintentional', 'unforeseen' and others by which apparently the defence to the charge of murder was variously expressed by counsel to the jury, and which were used by the learned judge when putting the defence to them, were intended to cover, and would be taken by the jury as covering, any view of the facts which might exculpate the accused from a charge of murder and induce them to find a verdict of manslaughter."

90 Dealing with that submission, Windeyer J concluded his analysis as follows: (at 245/6)

Bratty v Attorney-General for Northern Ireland

91 Here, Senior Counsel for the accused at the trial neither objected to the terms of the summing up, nor sought elaboration to deal with matters now said to be a problem. Even if, being now removed from the atmosphere of the trial, there were matters that might usefully have been put by way of elaboration or clarification along the lines now submitted, I would apply Rule 4. To my mind, there was no possible miscarriage of justice.

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Citations

Regina v Katarzynski [2005] NSWCCA 72

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Statutory Material Cited

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Ryan v The Queen [1967] HCA 2

CITATION:	Regina v Katarzynski [2005] NSWCCA 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 February 2005
JUDGMENT DATE:	9 March 2005
JUDGMENT OF:	Spigelman CJ at 1; Sully J at 2; Kirby J at 82
DECISION:	Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence allowed; sentence imposed at first instance quashed; appellant sentenced to imprisonment for 20 years to comence on 6 April 2001 with a non-parole period of 15 years to commence on 6 April 2001 and to expire on 5 April 2016, upon which date appellant eligible for release to parole.

LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	Royall v The Queen [1990] 172 CLR 376 Murray v The Queen [2002] 211 CLR 193 Ryan v The Queen (1967) 121 CLR 205 La Fontaine v The Queen [1976] 136 CLR 62 Parker v The Queen [1963] 111 CLR 610 Reg v Kirkham (1837) 173 ER 422 Reg v Duffy [1949] 1 All ER 932
PARTIES:	Regina Kirstaen William KATARZYNSKI
FILE NUMBER(S):	CCA 2004/1667
COUNSEL:	D. Frearson SC - Crown T. Game SC - Appellant
SOLICITORS:	S. Kavanagh - Crown M. Rumore - Appellant

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70013/02
LOWER COURT JUDICIAL OFFICER:	Howie J