R v Scott

[2012] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCOTT

[2012] SASCFC 137

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice White)

20 December 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

Application for permission to appeal against conviction – applicant found guilty by jury of attempted murder – applicant’s primary defence at trial was that he was not the assailant, or in the alternative, if he was the assailant, he did not intend to kill the victim.

Whether the Judge addressed the jury adequately in relation to the applicant’s alternative defence – whether the directions on intention should have referred to the evidence which raised as a possibility that the shots might have only been intended to harm or frighten – whether there has been a miscarriage of justice – if there has, whether the proviso should be applied.

Per Kourakis CJ:  the Judge did not refer to the applicant’s alternative defence when he directed the jury on the mental element of intention to kill – the Judge’s failure to apply his directions on the element of intention to the evidence is a material departure from accepted practice – this error has caused a miscarriage of justice – the prosecution has not discharged its onus for the purposes of the proviso.

Per White J:

(1) The Judge directed the jury appropriately that it had to be satisfied that the appellant had the intention to kill, and that any lesser intention would be insufficient.

(2) The jury is likely to have understood the Judge's directions in relation to the drawing of inferences in relation to the appellant's intention as indicating that they were entitled to infer the culprit's intention from the manner in which he shot at the victim.

(3) The Judge did not direct the jury adequately on the element of intention in relation to the evidence.  This omission was exacerbated by the Judge's statements that identity was the "real issue" in the trial.

Held: permission to appeal granted – appeal allowed – conviction for attempted murder set aside – matter remitted for retrial.

Per Vanstone J (dissenting):  The trial Judge's instructions could not have deflected the jury from its proper task so as to cause a miscarriage of justice.

Gassy v The Queen (2008) 236 CLR 293; Cesan v The Queen (2008) 236 CLR 358; Nudd v R (2006) 162 A Crim R 301; Festa v The Queen (2001) 208 CLR 593; Weiss v The Queen (2005) 224 CLR 300; Libke v The Queen (2007) 230 CLR 559; Knight v The Queen (1992) 175 CLR 495, discussed.
R v Storey (1978) 140 CLR 364; Driscoll v The Queen (1977) 137 CLR 517; King v The Queen (2012) 245 CLR 588; R v Burns (2009) 103 SASR 514; R v Teremoana (1990) 54 SASR 30; Alford v Magee (1952) 85 CLR 437; Pemble v The Queen (1971) 124 CLR 107; HML v The Queen (2008) 235 CLR 334; Hargraves & Stoten v The Queen [2011] HCA 44, (2011) 85 ALJR 1254, considered.

R v SCOTT
[2012] SASCFC 137

Court of Criminal Appeal: Kourakis CJ, Vanstone and White JJ

1. KOURAKIS CJ:    This application for permission to appeal against a conviction for attempted murder entered after a trial by jury was referred by me to the Court of Criminal Appeal for its consideration.  The applicant’s primary defence at trial was that he was not the assailant.  The applicant’s complaint on appeal is that the Judge did not adequately deal in his summing up with the evidence relating to his secondary, and alternative, defence that, if he was the assailant, he did not intend to kill.  For the reasons which follow, I would grant permission to appeal, allow the appeal and remit the matter for retrial.

   The Evidence

2. In the early hours of the morning on 16 April 2011, PS heard a knock on the front door of the share-house in which he was living.  The front door is a wooden door which is screened by an outer aluminium mesh door.  There is a small raised porch two steps up from the level of the front yard immediately in front of the front door.  PS opened the wooden door and stood behind the screen door.   The front porch light was on.  From his position PS saw a man, whom he identified as the applicant, standing with his back hard up against the brick wall of the home to his right.   When he gave evidence, PS was not sure whether the applicant was on the step up to the porch or on the concrete paving of the front yard when he first saw him.  PS testified that he heard the applicant softly say, “Open the door, bro” several times.  Knowing of the animosity between the applicant and another occupant of the house, PW, PS moved to slam the door shut.  As PS was stepping back from the screen door, he saw the applicant move from his original position before hearing two loud bangs.  PS saw a shadow through the front screen door.  PS immediately noticed blood streaming down his face.  He went into shock and fell to the floor as he was closing the wooden door. 

3. The prosecution case was that the applicant was motivated to kill PW because he was angry that PW had had a relationship with his former girlfriend.  Evidence was led that the applicant had once threatened to kill PW.  PS and PW testified that at night it was not possible to see into the house from the porch when the front porch light was on.

4. The evidence showed that the screen door was 203 cm high and 81 cm wide.  A police crime scene examiner gave evidence that there were two bullet holes in the screen door.  The higher of the two holes in the screen door was 147 cm above the foot of the door and 170.5 cm above ground level.  That hole was caused by the bullet which struck PS.  The lower of the two holes was 140 cm above the foot of the door and 153.3 cm above the ground level of the front yard.  It is not clear why those measurements account differently for the height of the porch above ground level.  The bullet which entered through the lower of the holes was found lodged in the wooden door at a height of 179.5 cm from the bottom of the door. 

5. The forensic expert witness, Plummer, testified that the bullet found in the door was fired from a .22 calibre firearm which might have been a pistol or a rifle.  Plummer’s opinion was that the bullet had travelled on an “upward trajectory” of approximately 20 degrees and in a direction from left to right of approximately 30 degrees.

6. The applicant’s primary defence was that he was not the shooter.  He called alibi witnesses who testified that at the time of the shooting he was with them at a gathering some distance away.  The alibi evidence was inconsistent with the account which the applicant gave of his whereabouts when he was questioned by police.  The jury’s verdict plainly rejected the defence of alibi.  There is no complaint about the conduct of the trial with respect to that issue. 

7. However, the applicant’s trial counsel also addressed the jury on the alternative possibility that if the applicant was the assailant, he had intended only to frighten or harm, but not kill, PS.  The applicant’s counsel addressed the jury as follows:

   …it might be in your minds that whoever the assailant was, given that the assailant is outside the door in the light, given that the victim, [PS], is inside the door through the wire screen and may not have had any light inside, given who knows what actual positions both were in and comparative heights, that the shots might not have been intended to kill but rather to harm or terrify.  You would have to find beyond reasonable doubt, if you decided that Mr Scott was the shooter on that night – I hope that will not be the case but if you decided that was the case you would have to find beyond reasonable doubt that the intention at the time went that far.

8. The Judge did not refer to the applicant’s alternative defence when he directed the jury on the mental element of intention to kill.  Nor did he include it in his summary of defence counsel’s address.  He did not mention it at all. 

9. In that part of the Judge’s summing up dealing with intention, His Honour told the jury on five occasions that it was the prosecution case that the accused had “shot [PS] in the head” and that an intention to kill could be inferred from that fact.  Those directions, in their context, imply shooting at the head of PS.  So much is clear from the rhetorical question posed by the Judge “What other intention could he have if you shoot someone in the head?”.  The Judge attributed that rhetorical question to the prosecution, but prosecuting counsel had not put that argument in his closing address.  The Judge also told the jury that “on the prosecution case the act or acts alleged are the firing of the gun at his head”.  It was not the prosecution case that the applicant had fired at, in the sense of aiming at, the head of PS.  The prosecution case was that the intention to kill could be inferred from firing two shots into a door knowing that someone was standing behind it.

10. The Judge’s directions to the effect that an inference of an intention to kill followed ineluctably from a finding that an offender shot a victim in the head, might be unexceptionable if the evidence was that the shooter had aimed at the victim’s head, but that was neither the evidence nor the prosecution case.  Reasoning to an intention to kill from the evidence in this case required a more cautious approach.

11. The applicant submits that there was a viable defence that the shots might only have been intended to harm or frighten.  The applicant submits that the directions on intention should have referred to the evidence which raised that possibility and that the failure to do so has resulted in a miscarriage of justice.  The applicant’s submissions should be accepted. 

12. It was not the prosecution case, and the evidence did not support, an inference that the applicant fired from right up against the door.  The trajectory of the bullet is consistent with the applicant firing a gun towards the door from a position beyond the raised porch area.  The trajectory of 20 degrees and the heights at which the bullets hit the doors are all consistent with the gun being held at waist level.  The upward movement of a bullet on a trajectory of 20 degrees over even a short distance can be seen from the differential of 30 cm between the level of the lower hole in the screen door and the level at which the bullet lodged in the wooden door.  A bullet fired from a gun on a trajectory of 20 degrees will climb 36 cm in elevation for every metre travelled horizontally.

13. It is not difficult to apprehend that the applicant may have been quite unaware that he was holding the gun at an angle of 20 degrees and, even more importantly, that the applicant might not have appreciated that over the distance involved the upward trajectory of the bullet would take it as high as PS’s head.  The evidence did not establish whether the applicant had fired from a position on the porch or in the yard.  The testimony of PS, that he only saw a shadow, leaves the position from which the applicant fired in considerable doubt.  The fact that the applicant could not have seen through the door is also significant.  So too is the uncertainty of the motive for shooting through the door given that it was PS, and not PW, who was at the door.  On the evidence it is not possible to come to any conclusion as to whether the applicant knew who was at the door.  Nor can it be known whether the applicant had asked that the door be opened because he wanted to get into the house or made the request by way of a ruse to bring the occupant of the house up against the screen door.

14. A conclusion that the applicant intended to kill was open on the evidence, but so too was the hypothesis that the applicant fired parting shots into the door in anger because he had failed to gain entry.  The shots may have been fired with reckless indifference as to the likelihood that the person behind the door would be killed or seriously harmed and not with an intention to kill.  Only the latter state of mind is sufficient to prove the charge of attempted murder.

15. The Judge’s exclusive focus on the intention of an assailant who fires at the head of his victim is likely to have compromised the jury’s assessment of the evidence to which I have referred.  The evidence did not strongly support a finding that the applicant intended to fire at PS’ head.  Indeed, the ballistics evidence was just as consistent with an intention to fire below the head.  Moreover, as I earlier observed, the prosecutor did not put that argument.  The Judge’s emphasis on the intention of a shooter who shoots his victim in the head and the failure to remind the jury of the alternative defence raises a substantial risk that the jury failed to give the issue of intention the consideration it required.  

16. The error I have found is not an error of law.  However, the Judge’s failure to apply the element of intention to the actual evidence which touched on that question is a material departure from accepted practice.  The ground engaged is therefore the miscarriage ground.[1]  A miscarriage of justice occurs when there is a material defect or irregularity in the criminal trial process.  It extends beyond an error of law to departures from practice and other circumstances which render a trial unfair.  It is not possible to be precise about the denotation of the phrase because, amongst other reasons, it may change over time.  In Cesan v The Queen,[2] French CJ explained:

    [1]    Gassy v The Queen (2008) 236 CLR 293 at [31].

    [2] (2008) 236 CLR 358 at [69] and [71].

    In Devi v Roy a “miscarriage of justice” was seen as such a departure from the rules which permeate all judicial procedure as to make that which happened not judicial procedure in the proper sense of the words. It does not necessarily require the demonstration of a wrong decision. As Asprey JA said in Wilson v Wilson:

    “What will constitute a miscarriage of justice may vary, not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law.”

    …

    There are elements of the judicial process which can be said, at least in a metaphorical way, to play a part in maintaining public confidence in the courts irrespective of their relationship to the actual outcome of the process. The appearance of impartiality is one such. In North Australian Aboriginal Legal Aid Service Inc v Bradley the joint judgment quoted with approval the observation by Gaudron J in Ebner v Official Trustee in Bankruptcy: “Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system.” The somewhat elusive criterion of “public confidence” is in some cases, such as the appearance of bias, subsumed in what a fair and reasonable observer would think. The courts nevertheless depend in a real sense upon public confidence in the judicial system to maintain their authority. The maintenance of that authority depends, inter alia, upon that element of the judicial process which requires that parties before the court be given and be seen to be given a fair hearing. It is necessary to a fair hearing that the court be attentive to the evidence presented by the parties and to the submissions which they make. The appearance of unfairness in a trial can constitute a “miscarriage of justice” within the ordinary meaning of that term.

    (Footnotes omitted)

    In Nudd v R,[3] Gummow and Hayne JJ anchored the concept of miscarriage to the course taken by the trial:

    As four members of this Court explained in TKWJ v The Queen, describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Qld). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.

    (Footnotes omitted)

    [3] (2006) 162 A Crim R 301 at [24].

17. In my respectful opinion the Judge’s summing up on the issue of intention did not sufficiently conform to the rule of practice that a trial judge should apply the legal directions on the elements of an offence to the facts of the case.  I am also satisfied that if properly directed in accordance with the practice of this Court a jury could reasonably have acquitted the applicant of attempted murder.  A question arises as to whether that conclusion is a sufficient reason to order a retrial.

18. In Festa v The Queen,[4] McHugh J, after citing with approval the judgments of Barwick CJ in R v Storey[5] and Driscoll v The Queen,[6] explained the proper approach to the miscarriage of justice ground in these terms:

    Although the term “miscarriage of justice” appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court’s view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court’s view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction.

    In the same case Hayne J said:[7]

    Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction.

    Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused’s guilt. But those have been no more than particular applications of the common form provision requiring the court to allow the appeal “if it is of opinion that the verdict of the jury ... cannot be supported having regard to the evidence” (s 668E(1)). What is important for present purposes is that criminal appeals must be decided giving due recognition to the facts that it is for the jury to decide what evidence is persuasive and what is not, and that the degree of persuasion that must be attained to warrant conviction is very high.

    (Footnotes omitted)

    [4] (2001) 208 CLR 593 at [123].

    [5] (1978) 140 CLR 364.

    [6] (1977) 137 CLR 517.

    [7] (2001) 208 CLR 593 at [224]-[225].

1. In Weiss v The Queen,[8] the High Court held that whether or not a demonstrated miscarriage of justice vitiates the conviction and results in an order for a retrial depends on the application of the proviso and whether there has been a substantial miscarriage of justice.[9]

   [8] (2005) 224 CLR 300 at [18].

   [9]    King v The Queen (2012) 245 CLR 588.

2. In Weiss,[10] the High Court also carefully considered the operation of the proviso in the common form criminal appeal provisions which allows the Court to dismiss an appeal even when error has been demonstrated.  The High Court said:[11]

   That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

   (Footnotes omitted)

   The Court went on to make some observations as to several matters which govern the application of the proviso:[12]

   There are, however, some matters to which particular attention should be drawn. First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.

   Next, the permissive language of the proviso (the Court … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal …) is important. So, too, is the way in which the condition for the exercise of that power is expressed (if it considers that no substantial miscarriage of justice has actually occurred). No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

   Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

   (Original emphasis omitted and emphasis added)

   [10] (2005) 224 CLR 300.

   [11] (2005) 224 CLR 300 at [41].

   [12] (2005) 224 CLR 300 at [43]-[45].

3. In Nudd v R,[13] Gleeson CJ discussed miscarriages of justice in the context of the proviso in the following terms:

   Some irregularities “may” involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur. In Mraz v The Queen, Fullagar J said that “every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed” and that, if there is a failure in any of those respects “and the appellant may thereby have lost a chance which was fairly open to him of being acquitted”, then there is a miscarriage of justice. That well-known passage relates the failure of process to the loss of a chance of acquittal. Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.

   (Footnotes omitted)

   [13] (2006) 162 A Crim R 301 at [6].

4. In Libke v The Queen,[14] Hayne J warned:

   None of the appellant’s grounds of appeal being made out, it is, of course, not necessary to go on to consider the application of the proviso. It is as well to emphasise, however, that the unanimous decision of this Court in Weiss v The Queen warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court's task in considering the application of the proviso. The Court expressly discountenanced any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do. Rather, the Court said that “in applying the proviso, the task is to decide whether a substantial miscarriage of justice has actually occurred”. Unless, and until, a majority of this Court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision.

   (Footnotes omitted)

   [14] (2007) 230 CLR 559 at [115].

5. In the same case Kirby and Callinan JJ said:[15]

   Although it is the duty of an appellate court to decide, that is to say, satisfy itself that a substantial miscarriage of justice has occurred before allowing an appeal, it must do that against the background of the much broader discretion that it enjoys than a jury does, for they may only acquit or convict. An appellate court is not bound to decide the case finally. In weighing the possible impact of an irregularity, an appellate court will often be unable to determine whether there has been no substantial miscarriage of justice. In such a case the prosecution can be seen to have failed to establish that the proviso should be applied. This is why an appellate court may order a retrial, as we would do here.

   We have undertaken for ourselves the exercise which Weiss reiterates should be undertaken. We have independently assessed the evidence, making due allowance for such natural limitations as apply to appellate processes. But in doing so, necessarily, we have had regard to the complexion that the evidence, counsel’s addresses and the trial judge’s summing up may well have assumed, by reason of the highly inappropriate remarks of the prosecutor, and more, the trial judge’s apparent silent approval of them.

   In undertaking this exercise, we are not attempting to predict what a jury may or may not do, but simply to make it clear that we are not convinced that a substantial miscarriage of justice has not occurred.

   Weiss is only part of the relevant law on the topic. What the law is presents a question for legal analysis of the relevant statute and of the several authorities which together bear upon it. Weiss was written against the background of, and should be read subject to, almost a century of elucidation of the language of the “proviso” in criminal appeal statutes. It certainly did not cast doubt on the existence of the forensic burden imposed on the prosecution to demonstrate innocuous harmless error once a mistake of law, or observance of the requirements of justice, or an irregularity has been proved to have occurred in a criminal trial. That is the position here. Weiss holds that in undertaking its assessment, the appellate court must keep in mind that the jury has returned a verdict of guilty. The relevance and force of that consideration are capable of immense variation according to the degree of irregularity in the conduct of the trial.

   (Footnotes omitted)

   [15] (2007) 230 CLR 559 at [49]-[52].

6. In Cesan v The Queen,[16] French CJ explained the interrelationship between the miscarriage ground and the proviso in these terms:

   Weiss is authority for the proposition that the question whether an appellant may have lost a fair chance of acquittal is one to be considered under the proviso. It is not a necessary condition of the conclusion that there has been a “miscarriage of justice” as that term is used in “the dragnet ground” in s 6(1). Observations about the necessity of such a condition have been made in earlier cases and must be seen in the light of the approach taken by the whole Court in Weiss.

   The earlier case of TKWJ v The Queen concerned a decision by defence counsel not to adduce evidence as to the good character of an accused nor to seek an advance ruling as to the admission of adverse evidence in response. There was no defect in the instructions to the jury nor in the procedures followed at trial. As Hayne J pointed out, the question of “miscarriage of justice” in that case directed attention to the result of the trial. Counsel’s decision was significant only if it affected the result of the trial. The case is not authority for the proposition that the loss of a chance of acquittal is a necessary condition of the existence of a miscarriage of justice.

   Weiss involved the admission of irrelevant but prejudicial evidence. In that context the Court in Weiss defined the task of criminal appeal courts applying the proviso. The task so defined requires their consideration of the whole of the record to reach an independent conclusion on whether the appellant was guilty beyond reasonable doubt of the offence on which the impugned verdict has been reached. There may be cases, nevertheless, in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice. That may be because the process failure has deprived the appeal court of the capacity to assess whether the appellant may have lost a fair chance of an acquittal. That proposition is supported by dicta in Simic v The Queen.

   (Footnotes omitted)

   [16] (2008) 236 CLR 358 at [79]-[81].

7. In Gassy v The Queen,[17] the majority, who found that there was a miscarriage of justice, did not apply the proviso because they held that sitting as an appellate court they were not in a position to find beyond reasonable doubt that the appellant was guilty notwithstanding the very strong prosecution case. The reasons given for that conclusion included the jury’s advantage in assessing the testimony of the identification witnesses,[18] and the full weight of the other evidence over the course of a long trial.[19]  Importantly Gummow and Hayne JJ also declined to apply the proviso because the evidence merely permitted but “did not compel” the drawing of certain inculpatory inferences from the circumstantial evidence presented by the prosecution.[20]  That ground for declining to apply the proviso shows that a court might decide not to apply the proviso in cases in which a jury might reasonably return either a verdict of guilty or not guilty without the appeal court having to reach its own final view on the question of guilt.

   [17] (2008) 236 CLR 293.

   [18] (2008) 236 CLR 293 at [36]-[37] per Gummow and Hayne JJ.

   [19] (2008) 236 CLR 293 at [100] per Kirby J. See also R v Burns (2009) 103 SASR 514.

   [20] (2008) 236 CLR 293 at [37] per Gummow and Hayne JJ.

8. Ultimately, recourse must be had to the terms of the statute and the proviso cannot be applied unless the prosecution shows that there has not been a substantial miscarriage of justice.  I have already found that the directions did not properly relate the element of intention to the evidence touching on that issue.  That evidence permits, but does not compel, the drawing of the inference that the applicant intended to kill whomever might be standing behind the door.  It follows that the prosecution has not discharged its onus for the purposes of the proviso.

9. If it were necessary for me to decide whether the evidence proved beyond reasonable doubt that the applicant shot at the door with an intention to kill, I would not have so found.  The inherent difficulties in proof of an intention to kill are well illustrated by the consideration of that issue by the High Court in Knight v The Queen:[21]  

   Nevertheless, even assuming that the jury decided all of these matters against the appellant, it does not appear to us to be possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference that the appellant did not fire the shot which hit Salvo with intent to kill. The prosecution concedes that the evidence does not disclose that the first shot fired during the struggle between the appellant and Salvo was fired with intent to kill. Yet the second shot was fired during the continuation of the same struggle within a short time of the first shot. There was no evidence that the appellant had his finger on the trigger of the rifle during the struggle. The absence of a trigger guard meant that the rifle could easily have been fired as a consequence of the struggle rather than as a result of the conscious application of pressure to the trigger. And, immediately before the rifle discharged, it was pointing at Salvo's stomach, although Salvo managed to push it down so that he was actually shot in the groin.

   The verdict of the jury obviously entails a finding that the rifle was not discharged accidentally, but the evidence, in our view, leaves it entirely open that the second shot was fired recklessly by the appellant without the intent necessary to sustain a charge of attempted murder. That possiblity could not reasonably have been excluded by the jury, even if they were of the view that the evidence was also consistent with an intent to kill on the part of the appellant.

   [21] (1992) 175 CLR 495 at 504.

10. In this case, as I observed in [14] above, I would not find that the evidence excluded the reasonable possibility that the applicant fired the shots recklessly.  Moreover, the jury’s advantage in hearing the evidence is incapable of removing the doubt which I hold for two reasons.  First, the finding on the element of intention depends on the drawing of inferences from simple facts which were not in dispute.  Secondly, the jury’s attention was not directed to the competing inferences which arose out of that evidence.

11. My conclusion, that the evidence does not exclude as a reasonable possibility that the applicant shot recklessly but not with an intention to kill, would, generally, require a verdict of not guilty to be substituted if the applicant had appealed on the ground that the verdict was unreasonable.  The present authoritative statements of principle on the proper approach to the unreasonable verdict ground, and the application of the proviso, do not expressly deal with the possibility that reasonable people might differ on whether the evidence proves the commission of the offence beyond reasonable doubt.  I would hold that an appellate court which, in a case such as this, was satisfied beyond reasonable doubt that an intention to kill was proved should nonetheless not deny an applicant the opportunity to have a properly directed jury determine the question.  As the High Court observed in Weiss,[22] the satisfaction of the Court that the offence was proved beyond reasonable doubt is a necessary, but not sufficient, condition for the application of the proviso. The reasoning of Kirby and Callinan JJ in Libke[23] and of French CJ in Cesan[24] in the passages cited above seem to me to support the proposition that the proviso need not be applied if the court accepts that a reasonable and properly directed jury might acquit even if the court would convict. So too does the reasoning of Gummow and Hayne JJ in Gassy[25] in declining to apply the proviso because evidence permitted, but did not compel, the drawing of an inculpatory inference.

    [22] (2005) 224 CLR 300.

    [23] (2007) 230 CLR 559.

    [24] (2008) 83 ALJR 43.

    [25] (2008) 236 CLR 293.

    Conclusion

12. I would make the following orders:

    1.Grant permission to appeal.

    2.Allow the appeal.

    3.Set aside the conviction for attempted murder.

    4.Remit the matter for retrial.

13. VANSTONE J:     The applicant’s application for permission to appeal against his conviction by verdict of a jury for attempted murder was referred to this Court by a judge sitting alone.  The application challenges the adequacy of directions given to the jury.

    Background

14. The case against the applicant was that in the early hours of 16 April 2011 he went to the home of one Paul Wood carrying with him a .22 calibre firearm.  He knocked at the door and the victim, who was temporarily staying with Paul Wood, came to the front door.  The victim heard the applicant say two or three times, “Open the door bro”.  The porch light was on.  The victim recognised the applicant, who was standing near the front door and who was illuminated by the outside light.  Paul Wood gave evidence that, from a position nearby, he heard and he recognised the voice as being the applicant’s.  There was evidence that, from the applicant’s position on the porch, the view into the hallway through the security door was extremely limited.  On seeing the applicant at the front porch, the victim tried to slam the solid front door, but the applicant fired the weapon twice, one round, or part of one round, hitting the victim in the head.  The other round hit the screen door at about chest height.  The prosecution case was that it was likely that the applicant thought he was shooting Paul Wood.

15. At trial, the defence was one of identity.  In an opening statement made to the jury by defence counsel immediately after the prosecution opening, the issue in the trial was identified as who shot the victim.  In an interview with police, the applicant had claimed to have spent the night at the Gawler Caravan Park.  He had denied going to Wood’s home at Salisbury Downs.  However, an alibi notice had been served on the Director of Public Prosecutions indicating that the appellant had been at a certain business premises, with others, at the relevant time.  While the applicant did not himself give evidence, he called alibi witnesses who gave evidence consistent with that foreshadowed in the alibi notice.  Plainly, the jury rejected the defence evidence and was satisfied that he discharged the firearm.

1. The issue which the applicant wishes to agitate upon an appeal is whether the directions given by the judge going to the element of intention to kill and certain remarks touching that issue resulted in a miscarriage of justice by encouraging the jury to gloss over what was a viable alternative hypothesis, namely that the firearm was not deliberately aimed at the victim and that the shooter intended merely to harm or terrify.

   The proposed grounds

2. The proposed grounds of appeal as they appeared in the notice of appeal were:

   1.The learned trial judge failed to direct the jury adequately as to the specific intention which the prosecution had to prove in relation to count one.

   2.The learned trial judge erred in not adequately directing the jury as to the way in which they could draw inferences from the evidence in relation to the applicant’s intention.

   However, the argument as developed appeared to depart from the grounds, because, undermining ground 1, the directions of law going to the specific intention required for murder were unexceptional, and the terms of ground 2 were not specific enough to identify the complaint.  During the argument the appellant’s counsel was content to replace ground 1 with a ground suggested from the bench, namely:

   1.There has been a miscarriage of justice by reason of the judge’s failure to adequately apply his directions on the element of intention to the evidence.

   Counsel indicated that if that amendment were made then ground 2 could be read as a particular of the new ground.  The court indicated that such an amendment would be made.

3. The argument put was that although the central issue in the case was identity, there was a subsidiary issue in terms of proof of the intention of the shooter.  The judge should have instructed the jury that, on the question of intention, it should take into account that in the physical conditions faced by the shooter there was very limited vision into the hallway, that the shooter would likely not have been able to discern the figure of the man who came to the door and that, in those circumstances, the inference that the shooter aimed at the victim and intended to kill the victim was less readily drawn.  The appellant’s counsel referred to Pemble v The Queen (1971) 124 CLR 107, at 117 to 118 per Barwick CJ:

   … 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.

4. It is to be noted that such an argument was put by defence counsel in her final address, though not at any earlier stage.  However, no re-direction of any kind was sought by defence counsel at the close of the summing up.

   The directions

5. I now set out the directions given relevant to this complaint.  I shall do so at some length as I consider that the full text of the directions goes a long way to dispose of the complaint.

6. Early in his directions the judge dealt with the elements of attempted murder.  He said:

   The first element is that the accused intended to kill [the victim].  In this case the Crown alleges that the accused shot him in the head.  The Crown alleges, and if that is proved, that the accused shot him in the head, that follows by way of clear inference that he must have intended to kill him.  So that is the first element that has to be proved beyond reasonable doubt.  Namely, that it was the accused who shot him in the head and in shooting him in the head, he intended to kill him.

   …

   So the first element is that he intended to kill [the victim] or that person who was in front of him.  Ladies and gentlemen, it is important to remember that for that element to be made out it has to be an intention on his part to kill.  There can be no lesser intention, otherwise that first element has not been proved.  If it is proved that he shot him in the head but he only intended to seriously hurt him or wound him, that is not enough to make out the charge.  For that element to be made out it must be an intention to kill.

   Now let me just add something in relation to that first element.  When we are dealing with a person’s intention you might ask yourselves, ‘How do we work out what is in another person’s mind?  How do we work out what he is thinking?  We can’t get inside his mind, we are not psychiatrists –’ or I don’t think any of you are ‘– how do we know?’.  Ladies and gentlemen, let me tell you, as a matter of common sense an intention is just like any other fact and depends on what inferences or conclusions you can draw from the evidence.  Generally speaking we can work out what a person intended simply by what they did.  I mean, as night follows day you are entitled to reason in that way, to look at what happened and infer intention on that person’s part.  An in this case it is the Crown allegation, as I say it is the Crown allegation, that if it is proved beyond reasonable doubt that it was the accused who shot [the victim] in the head, then there is a clear inference that it has been also proved that he intended to kill him.  The Crown says what other intention could he have if you shoot someone in the head?  However, ladies and gentlemen, that will be a matter for you and that is the first element that has to be proved.

   Breaking it up, the central fact that has to be proved, that it was the accused who did the firing, that would seem to be the gist of this whole case, but within that, having done that, he has an intention to kill.  So that is the first element.

   …

   Ladies and gentlemen, they are the three elements that have to be proved in relation to the major charge, namely count 1.  If all three are not proved beyond reasonable doubt you will find the accused not guilty of that charge.  And let me add that you might think the real issue in this case is has it been proved beyond reasonable doubt that it was in fact the accused who fired the gun?  If there is a reasonable doubt about that, then you need go no further, and indeed before even coming to the second charge, the accused will not be guilty of anything.  If it is proved beyond reasonable doubt that he in fact was the person who fired the gun, then you will have to consider the question as to whether it has been proved beyond reasonable doubt that he intended to kill [the victim].

   The judge then went on to direct on the elements of the alternative charge of endangering life.  In doing so he explained the relationship between the two charges as follows:

   Ladies and gentlemen, I hope it is clear the difference between counts 1 and 2.  The common factor between the two is that it must be proved beyond reasonable doubt that it was the accused who fired the gun at [the victim].  That’s the common factor between these two counts.  If that is not proven beyond reasonable doubt – and that appears to be the real issue in this case – then the accused will not be guilty of both offences.  However, if you found the accused not guilty of count 1 because he did not have the intention to kill, even though he fired the firearm, then you would consider count 2, and as you can see, the elements as to his intention in relation to count 2 are lesser and different that the elements in relation to count 1.  I hope that is clear, ladies and gentlemen.  Count 1 there has to be an intention to kill, anything less than that he is not guilty.  Count 2, it is not an intention to kill, it is an intention to endanger life in the way that I have described.

   When the judge came to deal with the prosecution case he mentioned the forensic evidence going to the scene, but he did not detail it.

7. In summarising the directions of law the judge said:

   Ladies and gentlemen, the main issue in this trial, you might think, is has it been proved beyond reasonable doubt that the accused is the one who shot [the victim].  That is your starting point.  If that has not been proved beyond reasonable doubt you need go no further.  If that has been proved beyond reasonable doubt then you will look at the elements of the offences as I have directed you and, as I have said, if there is any confusion or unclarity in what I have told you, please do not hesitate to contact me to make things clearer.

   Analysis

8. In my view the terms of the summing up were apt to assist the jury in the way in which the case was fought, being on the issue of identity.  The judge described this as the main issue.  He did not describe it as the only issue.  He repeatedly told the jury it had to consider as well the elements of intention and unlawfulness.  He clearly outlined that the alternative charge of endangering life was there to cater for the eventuality that intention to kill was not proved.

9. The judge dealt with the appellant’s defence and the evidence going to it in some detail.  It is true that he did not specifically mention the defence argument relative to the shooter’s intention.  However, in the way the (correct) directions of law were framed, it was abundantly clear where that argument was accommodated.  The issue was straightforward, as was the evidence bearing on it.

10. Bearing in mind that two shots were fired at close range, one at head height and one at chest height, that the shooter took no steps to hide his identity, even though he was well known to both the victim and Paul Wood, and that the defence called evidence of alibi, I do not consider that the judge was obliged to say more.

11. As I mentioned earlier, experienced defence counsel made no complaint about the failure to reiterate the defence argument.

    Conclusion

12. In my view the judge’s instructions could not have deflected the jury from its proper task so as to cause a miscarriage of justice:  Hargraves & Stoten v The Queen [2011] HCA 44, (2011) 85 ALJR 1254.

13. I would grant permission to appeal but dismiss the appeal.

14. WHITE J:         The circumstances of this appeal are set out in the reasons of the Chief Justice and Vanstone J.

15. The appellant originally sought permission to appeal on two grounds, namely:

    1.The learned trial judge failed to direct the jury adequately as to the specific intention which the prosecution had to prove in relation to Count 1.

    2.The learned trial judge erred in not adequately directing the jury as to the way in which they could draw inferences from the evidence in relation to the applicant’s intention.

16. In my opinion, neither of these grounds is made out.  The Judge directed the jury clearly and repeatedly that, in order to convict the appellant of attempted murder, it had to be satisfied that he had the intention to kill Mr Smart and that any lesser intention would be insufficient.  This was a correct direction.[26]   

    [26]   R v Teremoana (1990) 54 SASR 30 at 39.

17. Ground 2 related to the following passage in the summing up:

    Ladies and gentlemen, let me tell you, as a matter of common sense an intention is just like any other fact and depends on what inferences or conclusions you can draw from the evidence.  Generally speaking we can work out what a person intended simply by what they did.  I mean, as night follows day, you are entitled to reason in that way, to look at what happened and infer intention on that person’s part.  And in this case it is the Crown allegation … that if it is proved beyond reasonable doubt that it was the accused who shot Mr Smart in the head, then there is a clear inference that it has been also proved that he intended to kill him.  The Crown says, “What other intention could he have if you shoot someone in the head?”

18. In my opinion, the jury is likely to have understood that direction as indicating that they were entitled to infer the culprit’s intention from the manner in which he shot at Mr Smart.  Understood in that way, the direction, although not complete, is not objectionable. 

19. However, during the course of the appeal hearing, the appellant was granted permission to amend his Notice of Appeal to add a further ground alleging that the Judge had failed adequately to apply his directions on the element of intention to the evidence.

20. In my opinion, the appellant has made good this ground.  Apart from his references to the  accused shooting Mr Smart “in the head” the Judge did not direct the jury as to the evidence which it had to consider in relation to the appellant’s intention.  In particular, the Judge did not direct the jury as to the evidence bearing on the manner in which the culprit had fired the two shots and from which it was to consider whether it was reasonably possible that the appellant (if he was the culprit) may have had a state of mind other than an intention to kill.   The reasons of the Chief Justice indicate some of the matters about which the jury had to be directed. 

21. The obligation of a trial Judge to give directions to a jury as to the way in which the relevant law applies to the facts of the case is well established.  In Alford v Magee[27] the High Court referred with approval to the practice of the late Sir Leo Cussen:

    [He] insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them.  He held that the law should be given to the jury, not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case.[28]       

    (Emphasis added)

    [27] (1952) 85 CLR 437.

    [28] Ibid at 466.

22. Similarly, Barwick CJ in Pemble v The Queen[29] held:

    [T]he 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.[30]

    (Emphasis added)

    [29] (1971) 124 CLR 107.

    [30] Ibid at 117-8.

23. The position stated in Alford v Magee was affirmed by Hayne J in HML v The Queen:[31]

    The fundamental propositions stated by the Court in Alford v Magee, which have since been referred to many times, must remain the guiding principles.  First, the trial judge must decide what are the real issues in the particular case and tell the jury, in the light of the law, what those issues are.  Secondly, the trial judge must explain to the jury so much of the law as they need to know to decide the case and how it applies to the facts of the particular case.[32]

    (Citations omitted, emphasis added)

    [31] [2008] HCA 16; (2008) 235 CLR 334.

    [32] Ibid at [121]; 386-7.

24. In the present case, the effect of the Judge’s omission to give a direction relating  the element of intention to the evidence in the trial was, in my respectful opinion, exacerbated by his statement to the jury on three separate occasions that it could regard the issue of the appellant’s identity as the shooter as being the “real issue” in the trial.  Those statements would have served to distract the jury’s attention away from the evidence bearing on the shooter’s state of mind. 

25. For these reasons I consider that the appellant has made good his complaint that a miscarriage of justice occurred.  This is not a case for the application of the proviso.

26. Accordingly, I would make the same orders as are proposed by the Chief Justice.