R v Vjestica

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 242 of 2005

THE QUEEN
	v
BORISS VJESTICA

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JUDGES:	MAXWELL P, BUCHANAN JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2007
DATE OF JUDGMENT:	26 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 47

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CRIMINAL LAW – Conviction – Murder – Absence of proven motive – Accused ‘angry and disappointed’ with victim – Defence of accident – Whether guilty verdict unsafe and unsatisfactory.

CRIMINAL LAW – Trial – Venue – Pre-trial publicity and local gossip – Trial fixed for hearing in locality where shooting took place – Concerns expressed by potential jurors – Applications for change of venue refused – Safeguards of jury selection and judge’s warnings – Whether discretion miscarried – Whether miscarriage of justice.

CRIMINAL LAW – Juries – Investigation of conduct of jurors – Allegation that juror had informed himself beforehand from newspaper reports – Allegation investigated by Director of Public Prosecutions and dismissed – Whether Court of Appeal should investigate for itself – Allegation that different juror acquainted with victim – Whether apprehension of bias – Whether Court of Appeal should investigate – Juries Act 2000 (Vic) s 78(1), (3), (4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr L C Carter	Clarebrough Pica

MAXWELL P:

On 15 October 2003, the applicant shot Shaun Finnigan in the driveway of a house in Wodonga. On 27 May 2005, a Supreme Court jury sitting in Wodonga found the applicant guilty of murder. He was sentenced to 21 years’ imprisonment with a non-parole period of 17 years. He now seeks leave to appeal against his conviction. For reasons which follow, I would refuse the application for leave.

Ground 1: refusal of change of venue
Ground 1: The learned trial judge erred by refusing to order that the venue for the trial be changed by reason of the nature and volume of pre-trial publicity:-
(a)when the application was first made by defence counsel; and
(b)when the application was renewed by defence counsel following the taking of excuses from the jury panel (Ruling No 3).

Ordinarily, a trial will proceed in the district in which the offence charged is alleged to have been committed. As Lush J explained in Re Ratten,[1] this course is adopted –

so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.

More recently, in DPP v Bennett, Cummins J expressed the view that there were
powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or alienated. All this is common experience. This basal requirement should not be watered down by mere administrative convenience. This is the Supreme Court of Victoria, not the Supreme Court of Melbourne.[2]

[1](Unreported, Supreme Court of Victoria, Lush J, 4 August 1970).

[2](2004) 10 VR 355, 356 [6].

But the presumption in favour of a local trial is a rule of practice, not a rule of law. However powerful the considerations favouring a local trial may be, they must give way to the paramount requirement that the defendant have a fair trial. The venue of the trial must be changed if there is a real risk that a trial held locally will not be fair – or will not be seen to be fair[3] - and that risk cannot be eliminated

by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[4]

[3]Ibid 358 [10] and the cases there cited; Cording v Trembath [1921] VLR 163, 166-7 (Cussen J): to ensure that not only would a fair trial be had in fact ‘but that it should be had in such circumstances that all reasonable men would so admit.’

[4]Jago v District Court of New South Wales (1989) 168 CLR 23, 47 (Brennan J), cited by Nettle J in R v Iaria and Panozzo (2004) 9 VR 425, 430 [18]; Georgiou (2002) 131 A Crim R 150, 154 [23].

As Nettle J said in Iaria and Panozzo,[5] each application for change of venue falls to be considered on its own merits, without preconceptions. There is no necessity for an applicant to show exceptional circumstances. Nor is the applicant to be regarded as bearing a ‘heavy onus’.[6] It is both necessary and sufficient for the applicant to show that the change of venue is necessary for the purpose of securing a fair and impartial trial.[7]
[5](2004) 9 VR 425, [10] citing R v Yanner [1998] 2 Qd R 208, 209 (Pincus JA).
[6]Cf R v Cattell [1968] 1 NSWR 156.
[7]R v Holden (1833) 5 B and Ad 347; 110 ER 819; R v Boughton [1895] 2 IR 386.

But the test of necessity is, in practice, a stringent one. As discussed below, our system of jury trial has its own built-in protections against unfairness resulting from (for example) prejudicial pre-trial publicity. Those safeguards are: the excusing of any potential juror who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury about deciding the case strictly on the evidence; and the discipline of participation in the trial itself. Even where a risk of prejudice is identified, the applicant for change of venue will often be hard pressed to establish that these safeguards will not be sufficient to eliminate the risk.

It was common ground on the appeal that the power conferred by s 359 was discretionary and that a challenge (like the present) to the exercise of that discretion must therefore be approached in accordance with the principles enunciated in House v R.[8] That would be so if the ruling were being challenged before the start of the trial, in an interlocutory appeal.[9] But in the present case there has been a trial, and the applicant has been convicted. In those circumstances, as Mason CJ and Toohey J pointed out in The Queen v Glennon:[10]

Before [a court of criminal appeal] will set aside a conviction on the ground of a miscarriage of justice, [the court] requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.

This was the approach adopted by the Queensland Court of Criminal Appeal in Georgiou.[11]

[8](1936) 55 CLR 499.

[9]See Criminal Appeal Act 1912 (NSW), s 5F.

[10](1992) 173 CLR 592, 605-6.

[11](2002) 131 A Crim R 150, 154 [23].

While the pre-trial ruling on change of venue is an exercise in risk assessment, the post-conviction appeal against a refusal to order a change of venue is a hindsight review. The appeal court must decide whether a miscarriage of justice occurred as a result of the refusal to order a change of venue.

The first application

As appears from the terms of this ground of appeal, there were two applications for change of venue. The first was made at a directions hearing held in Melbourne on 20 April 2005. The basis of the application was that there had been such prejudicial pre-trial publicity in the local newspaper, ‘The Border Mail’, that the applicant could not be assured of a fair trial if the trial were held in Wodonga. The essential contention was clear and cogent: because the Crown would not be leading evidence as to motive and because the defence case was accident, publicity suggesting possible motives for the killing created a heightened risk of prejudice.

Eight newspaper articles were relied on. The first three – published on 16, 17 and 18 October 2003 respectively – followed immediately after the shooting of Finnigan. The first, though a front-page article, was innocuous from the applicant’s point of view. The second identified him as having been charged with Finnigan’s murder.

The third newspaper article reported that, at the hearing of a bail application by the applicant’s co-accused (Finnigan’s mother), a Senior Constable Stewart had informed the court that three people, aged 20, 17 and 14 respectively, had seen the shooting, while a fourth person, also aged 14, had been in the house at the time of the shooting. Senior Constable Stewart was reported as having said that Mrs Finnigan blamed the four young people for the shooting. The report continued:

[Mrs Finnigan] then assisted [the applicant] instructing the four on what they were to say when police attended, Sen-Constable Stewart said. They were to say they had not seen the shooting and to say they had no idea how the deceased was shot. They were told if they failed to comply with this directive there would be trouble. “In the young people’s minds [the applicant] was linked to the Black Uhlans (motorcycle club) and from their point of view he was a type of enforcer for them”, Sen-Constable Stewart said.

Complaint was also made about the following further passages from the 18 October report:

Sen-Constable Stewart said [Finnigan] owed $120 for amphetamine supplied to him by [the applicant] to sell. [Finnigan] had been unable to settle the debt and was aware [the applicant] was angry and in the days leading up to his death he had been in hiding. He said on Tuesday, [the applicant] and Ms Finnigan had visited several addresses in Wodonga looking for [Finnigan]. The defendant (sic) was acutely aware [the applicant] was intent on finding the deceased and acutely aware he intended to enact some form of punishment when he was found, he said.
…
He said at the … residence of [the applicant] and Ms Finnigan a box of .22 calibre bullets was found along with a spent .22 cartridge. A modified bolt-action gun, shortened to look like a pistol, was found in the glovebox of [the applicant]’s car.

Defence counsel submitted that this was ‘highly inflammatory material’, which cast the applicant

as a villain, associated with violent persons or prone to enforce debts, he’s cast in the light of being a person who provides drugs to young persons and who is prepared, in the words that are said, to enact some form of punishment on a person when found and suggests that [Finnigan] was in hiding from him.
…
[T]here will certainly be no evidence of those allegations in any [admissible] form and yet there’s a real latent possibility that the jury will say, “I remember this case, this is about that kid that was shot by the bikie and it’s all over drugs and he didn’t pay for his drugs and this man – he was hiding from him.”

Counsel submitted that this ‘latent material … within the community’ could not adequately be dealt with by directions from the judge to the jury.

Defence counsel then referred to two articles from early 2004, which linked the Black Uhlans motorcycle gang with violent crime. An article dated 27 February 2004 began:

An Albury man found shot dead in a caravan in 2002 had a long association with the Black Uhlans and had been the club’s sergeant-at-arms, a Supreme Court jury at Griffith was told yesterday.

An article dated 18 March 2004 pointed out that the person who was subsequently convicted of manslaughter of the Albury man had met him in jail while serving a sentence for attempted armed robbery and assault with intent to rob.

A third group of clippings contained reports of the applicant’s committal hearing, which was held in Wodonga in mid-July 2004. The first (dated 13 July 2004) contained these statements:

It has previously been alleged in court the shooting took place over a $120 drug debt.
…
[The witness] said [Finnigan] told her he was afraid of [the applicant] and had to get some money.

The second (dated 14 July 2004) contained these statements:
A youth fatally shot in Wodonga last year had been fearful for his safety because of the drug debt, a committal hearing was told yesterday. [LC] said [Finnigan] had told her a couple of days before his death that he owed [the applicant] money and was afraid of him. The sum mentioned by Finnigan was $100.
“He said it was for speed”, [LC] said in evidence yesterday. She said [the applicant] had attended her residence on the morning of Finnigan’s death looking for him. [LC] had told [the applicant] that she had not seen Finnigan.
“I lied for him because he was a good friend of mine,” [LC] said.
“He ([the applicant]) lifted up his shirt and showed me a gun.”
[the applicant] had told her “you are all going to cop it.”
He had also attended [LC’s] residence the previous day looking for Finnigan.

The first application was also supported by a series of written statements from individuals who lived in the Wodonga area. Defence counsel did not refer to any of these statements in the course of his submissions but it was nevertheless necessary for the judge to consider them. Complaint is now made that his Honour’s ruling did not advert to any of these statements.

The tenor of the written statements was to the effect that there had been a great deal of ill-informed gossip and speculation in the local community about the shooting, much of it said to have resulted from inaccurate press reporting. Thus:

·the applicant’s sister, who was at that time the manager of a clothing store in Wodonga, said that in the period between October 2003 and April 2005 she had
heard the most ridiculous and outrageous stories, to the point of ludicrous! [E]verything from his involvement with “biker clubs” to “police involved” to “ride-by shootings” and the list goes on and on!
Again –
the local TV station first stated that it was a suicide, then when the news broke out, they went well out of their way to state that [the applicant] was “Serbian born” and perpetuate[d] the rumours tenfold.
Ms Vjestica stated her belief that the applicant would ‘most definitely’ not get a fair trial if it were held in Wodonga.
·KC, who lives and works in Albury, said:
Due to the negative depiction that surrounded the arrest of [the applicant] by local Albury/Wodonga media (both news stations and newspapers) I was put in the difficult situation at work on a number of occasions by fellow employees who after hearing or reading what the media had said (which on numerous occasions was either completely false or a misrepresentation of the facts) [I] had to correct their portrayal of the entire incident.
KC also expressed the view that it would be in the best interests of the applicant for the hearing to be moved to another region ‘where justice could be seen to prevail’.
·RC, a store manager in Albury, said that if the trial were held in Wodonga –
this would be a misrepresentation of great lengths, due to the gossip and division, this case has caused since the very beginning.
I … cannot begin to tell you the lies and rubbish that has been spread, and continues to be spread.
·CN, a tradesman in the Albury/Wodonga area, referred to a conversation he had overheard between two men talking about the shooting. He said he was –
appalled and disgusted with how in the wrong they were about their depiction of the events, because of what they had read in the newspapers, and saw on the nightly news.
·KH said that, after the shooting –
it was a combination of kids, a small town, and people giving false stories that then led to at least 15 different versions of one story so it was easier to listen to nothing.

The submission for the Crown on change of venue was that the articles complained of had been published a long time in the past and that the Court should be satisfied that the applicant would have a fair trial. Counsel also submitted that no reasonable person reading the articles would infer any connection between the applicant and the Black Uhlans. The prosecutor told the Court that the Crown would not be alleging that the applicant was a drug dealer.

The trial judge dismissed the application for change of venue. After referring to relevant authority, his Honour said:

In this case the matters to which [defence counsel] has referred relate to press reports which are now some 18 months old or will be 18 months old at the time this trial probably commences. They were made in a newspaper in print and may, of course, have been read by some people who would ordinarily be on the jury panel.
Country towns present their own peculiar difficulties for judges trying criminal cases. It should be accepted that people in country towns would have an interest in local cases and that they would have discussed local rumours, stories, hearsay accounts and such like concerning such cases. It would probably also be true to say that the more serious the offence the more likely it would be that there would be gossip, speculation, innuendo and the like.
…
Where there is the possibility that members of a jury may have formed particular views as a result of publicity given to the arrest and charging of the accused, or where they may have read material which will not be admissible on the trial, it is the duty of the trial judge to ensure, by appropriate directions and appropriate warnings to the jury, that their attention is directed to the substance of the oath which they will take and that this must guide their deliberations. That is to say they must be directed to determine the case on the evidence they hear in the court room.
…
Here it would be grossly overstating the case to say that these press reports constitute an insuperable obstacle to a fair trial. Although it would have been better had they not contained the material that they do, it must be remembered they will be some 18 months old at the date at which the trial is due to commence. Further, having regard to the fact that the jury will be carefully warned when they are empanelled, on a number of occasions during the trial, and certainly in the charge they will receive before they consider their verdict, to confine their attention to the evidence given to the courtroom, they will not represent an obstacle to a fair trial.

Counsel for the applicant in this Court argued that, having stated the correct test, his Honour had actually applied the wrong test, by requiring the applicant to show that the press reports constituted ‘an insuperable obstacle to a fair trial’. I disagree. His Honour was simply using the word ‘insuperable’ to identify – correctly – that it was necessary to decide whether any adverse impact of the publicity could be overcome by means of the instructions he would be giving to the jury.

It was also submitted that too much weight had been placed on the passage of time (18 months) between the initial publicity and the trial, and on ‘the capacity of the jury to comply with directions to ignore extraneous matters’. Counsel pointed out that the third group of clippings (reporting on the committal) was published not 18 months but 10 months before the trial, although he conceded that the transcript of argument indicated that his Honour correctly understood this. Counsel argued nevertheless that the generalised reference in the ruling to a time lapse of 18 months between the publicity and the trial –

indicates a failure to consider the potential prejudice in the publications – the prominent suggestion of a motive for the killing which was not to be, and could not be, relied on at trial. This was a vital matter in the bizarre circumstances of the alleged murder where the applicant’s defence was accident.

Reliance was also placed on the judge’s failure to refer in the ruling to the fact that the Crown would not be leading evidence to establish that this was a dispute over a drug debt, or that the applicant had any connection with the motor cycle gang or that he was some kind of ‘enforcer’ for the gang. It was submitted that a change of venue should have been ordered ‘to provide a better safeguard of the applicant’s right to a fair trial’.

His Honour expressed confidence that the risk of prejudice could be removed, first by the process of asking potential jurors to raise any concerns they might have about their ability to bring an impartial mind to the case; and secondly by giving appropriate directions. As things turned out, it was the process of jury selection which prompted the second application for change of venue.

The second application

As part of the empanelment process, the trial judge asked potential jurors to indicate if they felt any difficulty about sitting on the jury in this trial. During the process defence counsel reiterated his concern that gossip would have been circulating amongst potential jurors about ‘a drug connection or a debt connection’, being matters which would not be alleged in the trial.

The second application for change of venue was based on the following answers, given by potential jurors who were excused after being asked by the judge to explain their difficulty:

Juror No 50

HH:     The reason I asked people to stand up was if they had some problem about serving on this case because of knowing someone, or knowing a witness, or being in some way connected with - - -?---I feel I would be pretty biased because I’ve lost a friend two years ago that got murdered and it still hasn’t been solved and I feel that I’d be pretty biased with this one too. Her murder was supposed to be - - -
HH:     Why would you be biased?---Well, hers was drug related.
HH:     And?---Well, I feel this might be drug related too, I’m not sure.
HH:     Yes. In the circumstances you’ll be excluded from the pool.
…
Juror No 37
HH: No 37, why did you stand up?---I have on an occasion met the defendant, [the applicant].
HH:     Could you explain that to me a bit more?---I met him at a friend’s and I work with his best friend in the - - -
HH:     Yes. Do you know him to say hello to in the street if you saw him?---Yes and no.
HH:     Is there any reason why you think you could not bring an impartial mind to the determination of the issues in this case?---Not really.
HH:     You seem to have some doubt about that, are you a bit concerned about it?---Well, yes, I suppose I am, yes.
HH:     Why are you concerned about it?---I know him to be not a very savoury character.
HH:     Yes, all right. In the circumstances you will be excluded from the pool?---Thank you.
…
Juror No 15
HH:     No 15, why did you stand up?---Because I knew [Finnigan] when he was a little fellow, a friend of mine used to baby-sit him and, yes, and I’m just dead against drugs, anything to do with it.
HH:     Yes, I see. In the circumstances I’ll excuse you from the pool?---Thank you.
…

In renewing the application for a change of venue, defence counsel relied on the following matters:

(a)two of the potential jurors had been excused after expressing the view that the death might be drug-related;
(b)one of the potential jurors had referred to gossip; and
(c)about 20% of the jury panel had sought to be excused, ‘a substantial proportion of which have known either a witness in the case and some very close to the crucial witnesses in the case’.

Counsel expressed concern that other jurors might be aware of the deceased and of the alleged drug connection ‘involving a mature male and a young boy.’ Counsel said he felt ‘some disquiet’ and had ‘some reservations’ about whether the applicant could get a fair trial in Wodonga.

On this appeal, counsel for the applicant argued that what transpired in the course of taking excuses from the jury panel

reinforced the foundation for a change of venue identified in the initial application. The fact that those potential jurors who expressly referred to gossip or a drug link were excused did not cure the concerns held by defence counsel as other members of the panel would of course have heard these statements.
Further, the number of [members of] the panel who asked to be excused indicated that the passage of time since the publicity should not have given the trial judge the confidence that he had in this factor when first ruling on the application.

The judge again rejected the application for a change of venue, giving the following reasons:

The circumstance of course is that in country towns gossip about local cases is not uncommon. It has always been thus, and indeed there have been occasions when the whole jury panel have indicated that they have known something of the case to be tried, been in some way concerned with it or had some knowledge of charges which are to be determined. They are always given appropriate instructions of course to decide the case on the evidence. They take an oath to do so.
This jury will be warned in the severest possible terms before they leave this court this afternoon as to their responsibilities. That warning will be repeated during the trial. There is nothing that I can see that would cause me to take a view that they would not act in accordance with their oath.

In my view, far from strengthening the case for a change of venue, the careful – and entirely orthodox – process which his Honour undertook in deciding whether or not to excuse potential jurors provided a significant degree of assurance that the applicant would have – and be seen to have – a fair trial. The effectiveness of the process is further illustrated by what took place in relation to three other jurors, two of whom were excused:

Juror No 97
HH:     Ninety-seven, why did you stand up?---I actually went to school at some stage with [Finnigan] and I wasn’t actually friends with him but I had spoken to him on a couple of occasions.
HH:     Were you ahead or behind him at school?---I was ahead of him.
HH:     How far ahead of him?---I think a couple of years it might have been.
HH:     Is there any reason that you know of that would mean that you couldn’t bring a fair and impartial and unbiased mind to the determination of this case?---I feel that I could try my hardest, but I don’t know if I could 100 per cent just because of the fact that I do - - -
HH:     In the circumstances you will be excluded from the pool.
Juror No 7
HH:     Do you have any reason to doubt that you will be able to bring an appropriately impartial mind, an unbiased mind to the determination of the issues in this case?---I do know – well, my son knows [Finnigan], or knew [Finnigan].
HH:     Yes?---Through school and through other friends and of course there’s a lot of hearsay in this case.
HH:     Yes, but applying yourself to the case, do you believe you would be able to determine the issues in this case with an unbiased mind impartially as a judge?---Yes.
HH:     I’ll permit you to remain in the pool?---OK.
Juror No 63
HH:     No sixty three, why did you stand up?---Because I believe there is a family connection here.
HH:     What is the family connection?---In the sense that [the applicant] was a customer of my father’s garage up until this all happened and he used to – my father used to manage a rep team that he was – he played in along with my brother as well.
HH:     What sort of team?---A soccer rep team.
HH:     I’m sorry, I missed that. A soccer team?---A soccer team, yes.
HH:     A soccer team?---Yes. My father used to manage a soccer rep team that both my brother – was in.
HH:     Right. Do you know the accused yourself?---No.
HH:     Is there any reason why you could not bring an impartial mind to the determination of the issues in this case?---Well, I feel I could be a little biased with regards to the connection.
HH:     Yes, all right. In that circumstance you will be removed from the pool?---OK.

It is clear that potential jurors understood the judge’s question about impartiality and responded conscientiously to it. It is equally clear that his Honour was astute to exclude anyone expressing real doubts about their capacity to approach the task impartially. (I note that, in accordance with established practice, the judge dealt separately with each of the jurors who had signified a concern, in the absence of the jury panel. This course is obviously desirable, to remove any risk of contamination resulting from what a potential juror says.)

His Honour was entitled to conclude – as the prosecutor argued was the case – that there were no unexpressed concerns amongst the remaining panel members. Indeed, there was nothing in the circumstances to warrant any other inference.[12] The manifest good sense of the participants in the process can only have reinforced his Honour’s confidence – and reassured any impartial observer – that those who were in due course empanelled would comply with their oaths as jurors and with any directions the judge might give them.
[12]The Queen v Glennon (1992) 173 CLR 592, 603-4 (Mason CJ and Toohey J).

The warning which his Honour gave the jury before the start of evidence was in these terms:

I cannot over-emphasise the importance of your not discussing this case or allowing yourselves to be influenced in any way by anything which occurs outside this court room, whether it’s on television, whether it’s in the newspapers, whether it’s your husband or your wife, whether it’s the neighbour down the street, it is of the utmost importance. You will probably get tired of my saying that but it is very very important, and it would be a breach of your oath if you were to allow anything like that to occur. I’m sure you won’t.

With respect, the point could hardly have been made more clearly or more forcefully.

The combination of careful jury selection and the strong warning was, in my view, sufficient to eliminate any actual or perceived risk of unfairness by reason of pre-trial publicity. I also take into account that there was a further important safeguard: the conduct of the trial itself. As Lord Hope said in Montgomery v H M Advocate:[13]

The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand, there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witness may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media.

[13][2003] 1 AC 641, 673.

In The Queen v Glennon, Mason CJ and Toohey J said:

As Toohey J observed in Hinch, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v The Queen, we stated:
“But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg v Hubbert: ‘In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence’.”
To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.[14]

[14](1992) 173 CLR 592, 603.

In the same case, Brennan J said:

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.[15]

[15]Ibid 615.

It is a fundamental precept of our system of jury trial that jurors understand and comply with the directions they are given.[16] A direction to put aside any information gleaned, or view formed, as a result of media reporting or other public comment on the case is readily comprehensible. As Kellam J said in R v Gojanovic –

[T]he commonplace experience of judges is that juries are able to put aside anything that they may have read or heard in the media about a particular trial and to conscientiously comply with their oath to “bring in a true verdict according to the evidence.”[17]

[16]See, for example, Gilbert v R (2000) 201 CLR 414, 425-6 [31]–[32] (McHugh J).

[17][2005] VSC 9, [21]; see also R v Vandergulik [2008] VSC 17, [10]-[11] (Teague J).

In Georgiou, the Queensland Court of Criminal Appeal said of a trial involving 45 witnesses and evidence taking up approximately 700 pages of transcript:

That volume of evidence one would think would force into the background any recollection a juror may have of media reports of the crime published two years prior. It is difficult to imagine that a short report published approximately three and a half months before the commencement of the trial (the report of the change of venue application) would carry any weight in comparison with the volume of evidence put before the jury.[18]

Although the time periods are different and the transcript of evidence is shorter, I would express exactly the same view in relation to the present case.

[18](2002) 131 A Crim R 150, 154-5 [24].

In my view, there was no miscarriage of justice attributable to the conduct of the trial in Wodonga. Ground 1 fails. Had this been in truth an appeal against an exercise of discretion, I would have dismissed that appeal. His Honour applied the correct principles, his consideration of the relevant matters was unexceptionable and the conclusion arrived at was well open in the sound exercise of the discretion, for the reasons I have given.

Ground 4: conduct of jurors
Ground 4: The trial of the applicant miscarried because a juror or jurors, contrary to direction from the trial judge, had regard in the course of the trial to newspaper reports on the alleged circumstances of the death of the deceased which contained inadmissible and prejudicial material, including assertions as to a motive for the alleged murder which was not relied on at trial.

The initial written submission in support of the application for leave to appeal was filed in July 2006. That submission contended that this Court should authorise a person to conduct an investigation under s 78(3)(c) of the Juries Act 2000 into the matters the subject of ground 4. Reliance was placed on two affidavits of Peter Clarebrough, the solicitor for the applicant.

In an affidavit of 21 December 2005, Mr Clarebrough swore that on 31 May that year (following the applicant’s conviction) he had received a telephone call from the applicant’s sister –

who advised me that she had been contacted by Mr [CN] who is the husband of one of [the applicant’s sister’s] girlfriends. Ms Vjestica advised that [CN] had been working with his friend at a house in Wodonga on 26 May 2005 and that the owner of the premises spoke to him that morning saying that he was the foreman of a jury in a murder trial. That further he went on to say that he had only been in Wodonga 10-12 months and he didn’t know much about the incident and would have to get the newspaper articles to find out the background of the matter. He wanted to catch up with the others on the jury who already knew about it.

Mr Clarebrough deposed that he subsequently spoke by telephone with CN who, at Mr Clarebrough’s request, provided a letter describing the incident in these terms:

On Tuesday the 17^th of May 2005, I went to [an address] to do Electrical work, with my co-worker Trevor. I went up to owner of the house … that was being built, and asked him how things were going? He told me that he was in the process of being in part of a local jury where he was the foreman of the jury, and proceeded to tell me that he had only just moved to the area and didn’t know much about the case, but had to look at newspaper clippings to catch up on the info that other Jurors had.
On Wednesday the 18^th of May, we both returned to [the same address] and [the owner] told us both that he thought that [the applicant] was a decent bloke and couldn’t understand the severity of the situation he was in. The conversation ended there. The entire conversation took at most 5 minutes.

The hearing of the appeal was listed for 3 August 2006. On 1 August, a senior solicitor from the Office of Public Prosecutions advised the Registrar of the Court of Appeal that the Director of Public Prosecutions would, pursuant to s 78(4) of the Juries Act, request the Chief Commissioner of Police to investigate the foreman of the jury ‘concerning the complaints made in relation to his conduct’. The hearing of the appeal was adjourned to enable that investigation to take place.

Subsequently, by letter dated 18 January 2007, the Office of Public Prosecutions reported on the investigation:

The allegations made have been comprehensively investigated by Victoria Police, and the Director of Public Prosecutions has considered the evidence obtained as a result of the investigation. The evidence does not substantiate the allegation that the foreman of the jury had regard to newspaper reports concerning the circumstances of the death of the deceased, nor does it support the complaints made concerning the conversations said to have taken place between the foreman and [CN].

At the request of the solicitors for the applicant, a directions hearing was held on 19 April 2007. Counsel for the applicant argued that the Court of Appeal should accede to the original request that the Court itself establish an investigation, notwithstanding that the Director had at his own initiative already completed an investigation into the matter.

The relevant parts of s 78 of the Juries Act are as follows:

Confidentiality of jury’s deliberations
(1) A person must not –
(a)publish, or cause to be published, any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury; or
(b)solicit or obtain the disclosure by a person who is or has been a juror of statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury.
…

(3)Nothing in this section prevents –
(a) a person who is or has been a juror disclosing to –
(i)a judge or court; or
(ii)a board or commission appointed by the Governor in Council; or
(iii)the Attorney-General; or
(iv)the Director of Public Prosecutions for Victoria or the Director of Public Prosecutions for the Commonwealth—
any information about the deliberations of a jury; or

(b)the investigation by a member of the police force at the request of the Director of Public Prosecutions for Victoria, or the Director of Public Prosecutions for the Commonwealth, of a complaint about the deliberations of a jury or the disclosure of information about those deliberations by a person who is or has been a member of a jury to the police in the course of the investigation; or
(c)the investigation by a person authorised by the Court of Appeal, in relation to an appeal to that Court, of an allegation about the deliberations of a jury or the disclosure of information about those deliberations by a person who is or has been a member of a jury to the authorised person in the course of that investigation.

(4)The Director of Public Prosecutions for Victoria may request the Chief Commissioner of Police to investigate a complaint about the deliberations of a jury or the disclosure of information about those deliberations by a person who is or has been a member of a jury.

Counsel for the applicant argued that, the request having been made for an inquiry under the auspices of the Court, the Director should not have investigated the matter. Counsel contended that the defence lacked confidence in the Director’s investigation, having not been informed either about its scope or about what emerged from it. At a subsequent directions hearing, I directed that the investigation report, prepared for the Director by (a delegate of) the Chief Commissioner of Police, be provided to counsel for the applicant. Having read the report, counsel nevertheless submitted (at the commencement of the appeal hearing) that the Court should authorise its own investigation.

Having read the full report myself, I am quite satisfied that no further action is warranted. The report demonstrates clearly that the matters reported by CN were thoroughly investigated. The report includes a detailed statement from the jury foreman. In response to the allegation that he had spoken to CN and his workmate, the foreman states:

I may have told them that I was the jury foreman at some stage but I emphatically deny the allegation that I told them that I did not know much about the case and had viewed newspaper articles to learn about what had happened prior to the commencement of the court case. This is an absurd allegation as the court case had only just begun. I had absolutely nothing to gain from researching from the historical perspective.

The statement continues:
As part of the jury, it was my duty only to evaluate the evidence that was presented to us. The judge informed the members of the jury prior to any evidence being given, that we were to rely only on the evidence presented. The judge said that our verdict was to be determined on that alone and not on personal thoughts we had about the defendants or anyone else involved in the court case.
…
As the jury foreman I was extremely aware of the gravity of being a juror and the responsibility being placed upon me and my fellow jurors in carrying out our duties. The importance was also heightened because of the fact of it being a murder case. I feel clear in my mind that I upheld those responsibilities.

The police investigator concluded that the foreman ‘exhibited a sound understanding of the judicial system and his obligations as a jury member’ and that there was insufficient evidence to substantiate the claim that he had read newspaper reports either prior or to or during the trial. Those conclusions are unimpeachable, in my view.

Subsection 78(3) of the Juries Act contemplates that, where there is a complaint or an allegation ‘about the deliberations of a jury or the disclosure of information about those deliberations by a person who is or has been a member of a jury’, either the Director of Public Prosecutions or the Court of Appeal may initiate an investigation of that matter. Express power to initiate an investigation is, however, conferred only on the Director, by s 78(4). No corresponding power is conferred on this Court although, on ordinary principles of interpretation, the existence of such a power must be presumed so as to give s 78(3)(c) full scope for operation.[19] Because of the view I have formed about the adequacy of the Director’s investigation, no occasion arises in this case to explore the nature or extent of the power of the Court of Appeal which s 78(3)(c) presumes to exist.
[19]See Davidson v Victorian Institute of Teaching [2006] VSCA 193, [19] (Maxwell P).

In my view, it was perfectly proper for the Director to initiate an investigation of the matter raised by the applicant. Obviously enough, the Court is not an investigative body and has no experience in the conduct of investigations. In most circumstances, therefore, it will be much more appropriate, and much more practicable, for the Director to request the Chief Commissioner to conduct such an investigation than for the Court to authorise ‘a person’ to do so. It may be that circumstances could arise which make it inappropriate for the Director to undertake a particular investigation, in which case the Court itself might be constrained to act, but this was certainly not such a case.[20]
[20]Cf Re Portillo [1997] 2 VR 723; R v Briffa (Unreported, Victorian Court of Appeal, Winneke P, Brooking and Callaway JJA, 21 April 1997); R v Frugtniet [1999] 2 VR 297, 301 [5] (Brooking, Phillips and Buchanan JJA).

Ground 4 must be rejected.

Ground 4A: the second request for a jury inquiry
Ground 4A: There has been a miscarriage of justice because a member of the jury [AB], and/or his girlfriend were associated with the deceased and/or the father of the deceased, giving rise to a reasonable apprehension of bias on the part of the juror [AB].

In an affidavit dated 27 June 2006, Mr Clarebrough raised a further matter which he said should be the subject of an investigation initiated by this Court. Mr Clarebrough deposed to a conversation with a person (P) who attended the applicant’s trial with her son (S). The affidavit said:

During the hearing S asked his mother what a person like AB was doing in a jury box. He described AB to his mother in terms of him being of very undesirable character, that he was a drug dealer and that he believed that AB knew the deceased. P further advised me that she was concerned about her son making an affidavit for fear of retribution if AB was to understand the comments made by her son.

By letter dated 20 September 2006, following the postponement of the original appeal hearing, Mr Clarebrough had conveyed to the Registrar of the Court his view that any investigation initiated by the Director of Public Prosecutions into the allegations regarding the foreman (ground 4) should encompass these other allegations. The Court was subsequently informed by senior counsel for the Crown that the Director had decided not to broaden the scope of the investigation, because at that time the allegations in relation to AB were not the subject of a ground of appeal. Leave to add what is now ground 4A was granted at the directions hearing on 19 April 2007.

Following the hearing of the appeal, an affidavit of S was filed. S stated that he had first met AB in about 2000. S had bought marijuana from him. The affidavit continued:

On one occasion approximately one year before [Finnigan’s] death, I had bought some marijuana and was sharing it with [Finnigan]. [Finnigan] and I were in a park near my parents’ house. He asked me where I got it from and I told him it was from AB. [Finnigan] said to me “yeah, I know AB”. I got the impression that he knew AB very well from the way he answered me.

The written submission for the applicant said:

If the juror AB was a friend of the deceased and/or a girlfriend of the juror AB associated with the deceased’s father, … a fair-minded and informed member of the public might entertain a reasonable apprehension that the juror might not have brought an impartial or unprejudiced mind to the resolution of questions involved in the trial. Justice must not only be done, but be seen to be done. That is the governing principle that is relied on.[21]

It was submitted that ‘the verdict could not stand if the association was established’ and that the Court should therefore authorise an investigation of the allegation.

[21]Here citing Webb v The Queen (1994) 181 CLR 41, 50 (Mason CJ and McHugh J).

In my view, there is no occasion for any investigation. The evidence provided by S establishes only that the deceased told S that he knew AB. I would uphold the Crown submission that – on the assumption that the deceased’s statement was true – it is not by itself sufficient to disqualify a juror on the ground of apprehended bias.

The test of apprehended bias to be applied to a juror is the same as that which applies to a judge, a commissioner or a member of a quasi-judicial tribunal.[22] The test is whether fair-minded people might reasonably apprehend or suspect that the juror had pre-judged or might pre-judge the case.[23] In Webb v The Queen, Mason CJ and McHugh J emphasised that there were two stages to the analysis. The first was to consider whether the juror’s relevant knowledge or association or conduct gave rise to a reasonable apprehension that he/she might be unable to undertake an ‘unemotional and impartial consideration of the case’. The second step was to consider the effect of the warnings which the trial judge would give. A fair-minded person would assume that the juror would do her best to follow the judge’s direction to look at the evidence ‘coldly, dispassionately and above all, objectively and using [her] commonsense.’[24]
[22]Webb v The Queen (1994) 181 CLR 41.
[23]See also R v Hodgkinson [1954] VLR 140, 144; R v Chaouk [1986] VR 707, 712 (Kaye J), 717 (Hampel J).
[24]Webb v The Queen (1994) 181 CLR 41, 55-6.

In Webb, the charge was murder. Shortly before the judge began his charge to the jury, one of the jurors had given a bunch of flowers to a person at the courthouse with a request that it be given to the deceased’s mother. The juror was identified and apologised for her conduct. The majority of the High Court concluded that, although the conduct did give rise to a reasonable apprehension of a lack of impartiality, the bias claim failed in view of the warning which the judge had given to the jury and the judge’s assessment that the juror would be able to approach the issues dispassionately.

In Conway v The Queen,[25] the Full Court of the Federal Court upheld the decision of a trial judge declining to discharge a jury in circumstances where a member of the jury had been seen leaving the court with someone who had previously had what defence counsel described as a ‘boyfriend/girlfriend relationship’ with the defendant. Noting that no evidence had been called to substantiate the allegations, and there was no suggestion that the juror was aware of the alleged relationship, the court said:

At the commencement of the trial his Honour had given the usual warning about the confidentiality of the jury process and there was no justification for doubting that the jury respected that confidentiality.[26]

[25][2000] FCA 461.

[26]Ibid [306] (Myles, Von Doussa and Weinberg JJ).

In McCormick v The Queen,[27] the sole Crown witness told the prosecutor that he thought he knew a female member of the jury. Having received that information, the trial judge identified the witness for the jury and asked them to consider carefully whether any of them recognised him. No juror indicated any prior knowledge of the witness. The New South Wales Court of Criminal Appeal upheld the judge’s refusal to discharge the jury. Had a juror disclosed any association with the witness, the Court said, the judge would have been obliged

to attempt to ascertain the nature of that association and to determine whether the association gave rise to a reasonable apprehension on the part of a fair-minded and informed member of the public that the juror would not discharge her task impartially, notwithstanding the proposed or actual warnings and directions of the trial judge.[28]

[27][2007] NSWCCA 78.

[28]Ibid [13].

The Court in McCormick adopted the following passage from the majority judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner v Official Trustee in Bankruptcy.[29]

First, [the test for apprehended bias] requires the identification of what it is said might lead a [juror] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a [juror] has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. (emphasis not in original)

The New South Wales Court continued:
Even assuming that [the witness] was not mistaken, and assuming that the juror remembered her association with [the witness] but declined to identify herself, “the bare identification of an ‘association’ will not suffice to answer the relevant question”.[30]

[29](2000) 205 CLR 337, 345.

[30][2007] NSWCCA 78, [17] (Latham J, with whom Hunt AJA and Johnson J agreed).

The mere identification of an asserted association between the deceased and AB did not ‘answer the relevant question.’ Nothing is known about the nature, tenor or duration of any such association, such as might have warranted an inference that AB was sympathetic to the deceased. Even then, as the majority judges in Webb pointed out, sympathy for a victim is different from antipathy to an accused.[31] What is known is that the juror did not seek to have himself excused. There is no reason to doubt the effectiveness of the safeguards to which I have referred. Ground 4A fails.
[31](1994) 181 CLR 41, 56 (Mason CJ and McHugh J), 88 (Toohey J); and see The Queen v Goodall (2007) 15 VR 673, 678 [25] (Redlich JA).

Ground 2 – Unsafe and unsatisfactory

Although the phrase ‘unsafe and unsatisfactory’ is commonly used in criminal appeals, the ground of appeal actually invoked is that –

the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[32]
[32]Crimes Act s 568(1). See Fleming v The Queen (1998) 197 CLR 250, 255-6 [10]–[12] (The Court); MFA v The Queen (2002) 213 CLR 606, 623-4 [58] (McHugh, Gummow and Kirby JJ); R v CHS (2006) 159 A Crim R 560, 587 [124] (Eames JA).

The contention for the applicant was that a reasonable jury, properly instructed, could not safely exclude the reasonable possibility that the shooting was an accident.
‘Unsafe and unsatisfactory’: the test

Since the High Court’s 1994 decision in M v The Queen,[33] the approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground has been clear. The analysis involves the following steps:
[33](1994) 181 CLR 487.

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[34]

[34]Ibid 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); MFA v The Queen (2002) 213 CLR 606, 614-5 [25] (Gleeson CJ, Hayne and Callinan JJ), 623-4 (McHugh, Gummow and Kirby JJ); Weiss v The Queen (2005) 224 CLR 300, 316 [41] (The Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

In MFA v The Queen,[35] McHugh, Gummow and Kirby JJ drew a distinction between the test as enunciated in M v The Queen and the test formulated by Dawson J in Chidiac v The Queen,[36] a case decided three years before M v The Queen. The latter formulation was in these terms:

If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory.[37]

Their Honours described this as a ‘stronger or more stringent test’ than the test in M v The Queen and in Jones v The Queen, which the appeal court in MFA v The Queen had expressed as follows:
I am of the opinion that it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant.[38]

[35](2002) 213 CLR 606, 622-4.

[36](1991) 171 CLR 432, 451.

[37]MFA v The Queen (2002) 213 CLR 606, 622 (emphasis added in MFA v The Queen).

[38]Ibid 624 [60].

With great respect, I am unable to see that there is any difference between the two tests. In my view, a guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged – as distinct from entitled – the jury to come to a different conclusion. This accords with the view expressed recently by a majority of the High Court in Libke v The Queen.[39] In that case, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground of appeal:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[40] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[41]

[39](2007) 235 ALR 517.

[40]Ibid [113] (citing M v The Queen (1994) 181 CLR 487, 492-3).

[41]Ibid. See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA).

In other words, the question posed in M v The Queen, namely

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?

requires the court of criminal appeal to decide
whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’[42] or whether, instead, the ‘path to a conviction was open’.[43]

[42]R v Shah [2007] SASC 68, [4] (Doyle CJ).

[43]Morabito v R [2007] NSWCCA 126, [34] (Mason P).

Again, to conclude that a guilty verdict was not reasonably open on the evidence is equivalent to saying that no reasonable jury could have returned that verdict on the evidence as presented in the trial. This was the approach of the South Australian Court of Criminal Appeal in R v Shueard,[44] cited recently by that Court in Shah,[45] as follows:

To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury. (Citations omitted).[46]
[44](1972) 4 SASR 36.
[45][2007] SASC 68, [6] (Debelle J).
[46]See also R v Berry [2007] VSCA 202, [107]-[108] (Redlich JA).

The facts

The relevant facts were of short compass and, to a large extent, uncontested. The applicant was in a de facto relationship with the deceased’s mother. (I shall refer to the deceased as ‘Finnigan’ and to his mother as ‘Mrs Finnigan’). Mrs Finnigan had another son, Jake. The applicant had lived with Mrs Finnigan and her sons for about three years. As Mrs Finnigan did not give evidence, the only account of the family relationship came from the applicant.

Finnigan was aged 17 at the time of his death. The applicant described him as a wayward young man:

He was quite mischievous, done what he wanted to do, he didn’t want to listen but he tried to.
…
… He was doing what he wanted to do. He wasn’t listening. We asked him, you know, “If you could call us wherever you are”, just so we know where he was and he wasn’t doing that. He basically was doing whatever he wanted.

Eighteen months before his death, Finnigan had lived with LC for about 10 months. As at October 2003, he was living at home, but ‘was in and out’.

On Monday 13 October 2003, two days before he died, Finnigan was meant to travel to Melbourne to begin work as a bricklayer’s labourer. He did not go. He disappeared on the Sunday night and was not seen again by the applicant or Mrs Finnigan until Wednesday morning, when the shooting occurred.

They started to look for him on the Tuesday afternoon. Mrs Finnigan and the applicant drove to the house of JS, in Schlink Street, Wodonga (‘the Schlink Street house’) but there was no one there. They then went to the house of LC ‘because he sometimes stayed there’. LC told the applicant that she had seen Finnigan but, when asked why he wasn’t coming home, told him that she did not know. On their way home, they saw JS in the street but he was unable to help them locate Finnigan. They expected Finnigan to return that night (Tuesday) but he did not.

On the Wednesday morning (15 October), the applicant dropped Mrs Finnigan at work. When Mrs Finnigan said she had forgotten the vacuum cleaner which she needed for her cleaning job, the applicant said that he would bring it back when he took the younger son, Jake, to school. On his way home to collect the vacuum cleaner, the applicant again drove past the Schlink Street house and once again it appeared that there was no one home.

The applicant gave evidence of having discovered a gun in Finnigan’s room. The Crown challenged this account. According to the applicant, when he returned home to get the vacuum cleaner, he sat down with Jake for 5 or 10 minutes and then ‘I thought – I just had this feeling “I’ll go in [Finnigan]’s room and have a look and see if there was something there that shouldn’t be”.’ He explained that what he meant was drugs, because Finnigan ‘was known to partake in drugs.’ When the applicant went into Finnigan’s room, he found a tin on the top shelf. When he opened it, there was a foil with powder inside it. (The nature of the substance was never established).

The applicant’s account continued –

I looked furthermore to see if there was more drugs. I looked – moved his clothes, something heavy moved in one of the suits. I put my hand inside the suit to get whatever was in there out, I pulled out – out of the suit – a small type of pistol. … As I pulled it out, I pulled the trigger, not on purpose, just pulled it out as it was coming out, then I looked at it and pulled it again. Nothing happened.

He confirmed under cross-examination that he had been able to move the trigger freely: “[I]t seemed like a water pistol.” He said that he had thought to himself at the time that the gun was not loaded.

Having found the gun, the applicant ‘wanted to find him and just – just ask him what he – what he was going to do with it.’ He put the gun on the inside of his pants at the front. The applicant said that he could not believe that Finnigan would have a gun in the house –

… because I took off him a … sawn-off shot gun months before that, before this happened. He bought it home. He tried to sneak it in. I caught him, and I said, “What are you going to do with that?”. And his father had given him some grief …

The applicant then drove Jake to school and dropped off the vacuum cleaner at Mrs Finnigan’s work. He did not mention to Mrs Finnigan that he had found a gun in Finnigan’s room, because ‘she’s scared of them’. He then drove once again past the Schlink Street house. He knocked on the door but there was no answer, so he left. He then went once more to LC’s house and knocked on her door. Although he had put the gun in the glove box while taking the vacuum cleaner to Mrs Finnigan, he had by this time put the gun in his belt again.

According to the applicant, he said to LC, ‘We’re worried about him, we’re concerned about him. If it weren’t for all you harbouring him he’d be home with us now.’ Then the applicant lifted up his jumper and showed LC the gun. He then said to her, ‘Youse are all gonna cop it because of this.’ The applicant’s evidence of this exchange was almost identical to the account which LC herself had given earlier in evidence: ‘He lifted up his shirt and then he showed me the gun and then he said, “We’re all going to cop it”.’

Under cross examination LC said, ‘I’m pretty sure that’s what he meant by “we’re going to cop it”, like they’re all going to cop that.’ LC confirmed having told police in her 2003 statement that the applicant had said ‘They are going to cop this’, and that she ‘knew he was talking about the gun’. She confirmed that she believed the applicant’s reference to ‘they’ was a reference to Finnigan and KB. She did not call the police, however, because she did not think the applicant was going to shoot someone. She thought he was just going to scare them. ‘You just don’t shoot someone, especially like … your son, he was like nearly his son.’

The applicant then drove past the Schlink Street house one last time. ‘I thought I’ll give [JS’] place one more try, if he wasn’t there I’d put it down to a lost cause.’ There was a wreck of a car in the drive. This time, the applicant saw Finnigan and three other people in and around the car. He had put the gun back in the glove box when he left LC’s house but, on arrival at the Schlink Street house, he took the gun out.

This was his evidence as to what then occurred:

I looked through the window like this, I seen [Finnigan] walking towards me. I put the gun inside me pants again and put my jumper over it. I just wanted to confront him about [the gun]. He had responsibilities and he was just dodging everything. … [A]s I just got past the driveway gate entrance, that’s when I went to pull out the gun to show him and my jumper … Because as I was pulling it out it got caught and I tried to use my left hand to get the jumper off and then I pulled the gun out and that’s when I said: “Are you concerned about this?” And he said: “No.” … I said: “What are you going to do, are you going to shoot someone with it?” And he said: “I’m not afraid.” And that’s when I said to him: “You think you’re a big man, don’t you?” And at that point, I don’t know, he just sort of looked at me like, “I don’t care what you think”. I went to push him back with [the gun], with the barrel. As I pushed him back with it, pushed and then I heard, pop.

When asked by his counsel what he did next, the applicant said:

I just couldn’t believe it, I just thought, this is not happening, this is - I went numb, I was just scared, I was frightened. I thought “I’m going to go and get Gill.” I turned around, went back to the car, got in the car and went to get Gill. She was working at the house. … I got on the mobile phone, I called her and she obviously said – “Hullo”. I said: “I think [Finnigan]’s been shot.”

The applicant collected Mrs Finnigan but did not tell her how Finnigan had come to be shot. ‘No, I couldn’t bring myself to tell her.’ They then drove back to the Schlink Street house. They went around to the back where Finnigan was lying on the ground. The applicant put his windcheater on Finnigan’s wound and told Gill to call an ambulance. Subsequently the police and ambulance arrived. The applicant and Mrs Finnigan left to go back and lock up the house which Mrs Finnigan had been cleaning.

The applicant’s sworn evidence was that he did not intend to kill Finnigan. His counsel submitted to the jury, both in opening and in closing, that the shooting was not deliberate but was accidental. Defence counsel relied – as did counsel for the applicant on this appeal – on eight considerations which were said to demonstrate that intentional killing was ‘a most unlikely scenario’. Those matters were as follows:

1.There was no motive for the applicant to have killed Finnigan intentionally.
2.The shooting took place in broad daylight in a populous area.
3.The shooting took place in front of three witnesses, all of whom knew Finnigan.
4.The applicant displayed no anger. ‘[T]here’s some stern words but there’s no anger, no screaming or anything.’
5.The applicant made no threat to any of the witnesses to ‘keep their mouths shut’ about what they had just seen.
6.The applicant did not take advantage of opportunities which he had to dispose of the gun - for example, when he went to collect Mrs Finnigan.
7.The applicant returned promptly to the scene of the shooting, having collected Mrs Finnigan. He did not flee.
8.Contrary to the prosecution case, the gun was not at right angles to Finnigan’s body, but was on an angle.

Defence counsel went through these eight points on two separate occasions in his final address. He made very clear to the jury his contention that, when these matters were taken into account, they could not be satisfied beyond reasonable doubt that this was an intentional shooting.

The critical question on this appeal is whether that submission was correct, that is, should the jury have entertained a reasonable doubt as to whether the shooting was intentional or accidental or was it, on the other hand, open to the jury to be satisfied beyond reasonable doubt that it was intentional (as their guilty verdict on the count of murder indicates they were)?

It is important, first, to examine carefully what the evidence showed about the surrounding circumstances, and about the applicant’s purpose in ‘confronting’ Finnigan on the Wednesday morning.

Context and purpose

It was not in dispute that Finnigan was avoiding the applicant. In opening, defence counsel acknowledged that there was ‘an apprehension and a reluctance to go home.’ The evidence revealed no explanation for that reluctance, beyond the indication that there were tensions between Finnigan on the one hand and the applicant and Mrs Finnigan on the other about his wayward behaviour. Under cross-examination, the applicant admitted that Finnigan had disappointed him, but denied having hated him. He conceded that he did not like the fact that Finnigan was ‘just dropping in and dropping out’, but said that he put up with it. He described his state of mind at the time of the shooting as ‘disappointed and angry’.

When asked why he went looking for Finnigan again and again on the morning of the shooting, the applicant answered, ‘Because he was getting into mischief. He was going to end up in gaol sooner or later, and I didn’t want that.’ Asked why he took the gun with him, the applicant answered, ‘To confront him about it.’ He was pressed by the prosecutor to explain why that had to be done in public and why he (the applicant) could not simply have said to Finnigan: ‘Look, I’ve found a gun at home, son, come home and talk about this.’

Question: Why didn’t you just ask him to come home; leave the gun where it was …
Answer: Because we couldn’t find him. Every time we called someone up, they’d say, no, they hadn’t seen him, we don’t know where he is, so I thought, well, why not go look for him.
Question: But why did you have to take the gun with you to go and look for him?
Answer: I suppose everything in hindsight, I suppose I didn’t have to take the gun, but I did.

The applicant repeated that he had wanted to confront Finnigan about the gun. ‘He had responsibilities, and that was one of them.’ Asked by the prosecutor to explain what responsibilities he meant, the applicant said, ‘The responsibility to us. For his actions. To be responsible for his actions.’ Asked in what way Finnigan had failed to discharge that responsibility, the applicant said:

By not calling us, by not telling us where he was, by coming in at all odd hours, 6.00 am, 5.00 am. He had responsibilities … He was trying to get into the army.

In final address the applicant’s counsel characterised his client’s state of mind in these terms:

You might think that any parent would be concerned about their child in those circumstances, particularly if you’d been into [Schlink Street] as [the applicant] had been. That house was a dive, a dump. There was torn furniture. Rubbish all over the floor. Car parts inside the car. Battery chargers. The bath that one would normally wash oneself is filled with filthy washing. There’s rubbish everywhere, and as the police told you out near the rubbish bin there was a bag and it had syringes in it. That’s not the house you’d be wanting your son to be in. He was a wayward boy and he was at risk of getting into further trouble. The prosecutor asked my client “What do you mean by he had responsibilities?” Well, 17 year olds do have responsibilities if they’re going to live under your roof. They do have to abide by house rules. That’s how we teach our children to set their values for life. You can’t just go wandering off and come and go whenever you please. You do have responsibilities. But the prosecutor laughed at that. Why shouldn’t the accused, if he could see the impact it was having on the family, on the mother, have an interest in seeing that that boy had at least some male direction?

Again –
So the accused has also found a gun in the pocket of [Finnigan’s] jacket. Wouldn’t you step up procedures at that point in time? There’s been another boy at your house with a gun, for want of a better word, your stepson’s got a gun. You’d be very worried, particularly a pistol, with what they’re up to. It’s not a rifle to go shooting with. You might put up with a 17 year old having a rifle and going shooting for rabbits without a licence. You might encourage him to get a licence. But a pistol, both of them with pistols, you would be concerned.

Further –
He didn’t tell Mrs Finnigan that he’d found a gun. He was concerned that he’d confront this boy man-to-man with this gun and demand an explanation, and no doubt to give him quite a rev over it. What would you do if you found your son with a pistol, man-to-man, bigger, or he may be smaller than you? There’d be some of us that would be calm and placid and say, “Look, boy, this is not the right way to behave.” Or you might be the sort that says, “Listen, son, “grab him by the scruff and say, “this gun will kill someone. If you’re found with it, you can go to gaol. Get rid of it. Who are you hanging around with?

The reference in the second of these passages to ‘another boy at your house with a gun’ is a reference to a visit said to have been made to the Finnigan house on the previous Sunday afternoon. LC gave evidence that she had gone to the house with Finnigan and two males, her boyfriend (BH) and a friend of Finnigan’s (KB). One of the boys had a gun with him. She thought it might have been KB. She saw the gun but did not handle it. The three boys were talking about it on the way there. When they got to the Finnigan house, LC stayed in the van and Mrs Finnigan came out and spoke to her. Finnigan and KB went into the house. After they left, the boys still had the gun.

According to the applicant, Finnigan had shown him a silver pistol that afternoon, saying it belonged to KB and asking if the applicant wanted to buy it. The applicant said he did not want the gun and told Finnigan and KB to get rid of it or they would be ‘really going in deep shit.’

BH denied that any of the three of them had had a gun. He said he knew nothing about any gun. KB gave evidence to the same effect. He said that no one that day had had a pistol with them and that LC’s evidence was not true. He said he had gone to the Finnigan house that day because Finnigan had said that he could get KB a gun. KB was only 16 at the time and said he had been curious about the gun.

In final address, defence counsel referred to the question of the ‘silver gun’ as a side issue, while maintaining that LC rather than KB was to be believed and that KB had been trying to sell a pistol, not buy a gun. The judge in his charge went further and said – as a comment – that the jury might well think that what had happened on the previous weekend was largely irrelevant. It was, nevertheless, made relevant by the explanation which the applicant gave for having shown the gun to LC on the morning of the shooting.

The relevant part of the cross-examination was as follows:

You agree that you took the gun with you when you went up to the door of [LC’s] house?--- I agree.
Why did you do that?---She was there on Sunday with [KB], [Finnigan] and [BH] with the silver pistol. I thought if I showed her she’d tell me more about this one.
Could you explain that a bit more? You’ve lost me. Why - - - ?---She was there on the Sunday with [KB] and [Finnigan], right?
Yes?---With a silver pistol that she knew about, so I thought if I show her this one that I found in [Finnigan]’s room - - -
How do you know she knew about the silver pistol?---Because she was up there in the witness box and said it.
But how did you know - - - ?---Then?
- - - In October 2003?---Because she was in the car. I mean, how could you not know?
HIS HONOUR: No, no, just answer the questions. Don’t argue, [the applicant], just answer?---Well, how – he just asked me, how do I know. I don’t know that.
PROSECUTOR: So why did you take the pistol in there?---I assumed she knew.
Yes. Why did you have to show her? How old was she at that time?---I don’t know.
Fifteen, sixteen, something like that?---(Indistinct).
A young girl?---Yes.

In my view, this exchange damaged the applicant’s credit – and his version of events as a whole – in two important respects. First, the answer which he initially gave was premised on LC’s having been aware, at the time of the Sunday visit, that the other three had a pistol. When asked about how he knew, on the Wednesday morning, that she had that knowledge on the Sunday, he answered by reference to the evidence which she had given in the trial. When it was pointed out that what mattered was his knowledge at the time, he conceded that he did not know at the time that she was aware of the gun, but ‘assumed she knew’. This was, in the circumstances, a very significant change of position, and an unconvincing one. The initial answer, and the retraction, invited the inference that the applicant had based his ‘explanation’ on what he had heard LC say at the trial.

Secondly, if the applicant had truly intended to show LC the gun in the hope that she would ‘tell me more about this one’, his behaviour on the doorstep would have been quite different. Instead of showing her the gun and saying that they were all going to ‘cop it’, he would have asked her whether she knew anything about the gun which he was showing her. The encounter with LC, as described by both LC and the applicant himself, was quite different in tone and content. Indeed, defence counsel was at pains to establish that what the applicant had said to LC was ‘They are going to cop this’ – and that ‘this’ was a reference to the gun. That statement could hardly have been more different from the request for information or explanation which the applicant claimed he was intending to make.

The firing of the shot

I turn now to consider the evidence concerning how the shot came to be fired, and the competing theories on that subject advanced by the prosecution and the defence respectively. The defence accepted that, at the time when the applicant held the gun against Finnigan’s body, it was both loaded and cocked.

As the police firearms expert explained to the jury, it was a single shot weapon. It had originally been a .22 bolt action rifle, which had been cut down to the size of a pistol. It had to be loaded by hand. The applicant’s evidence was that he did not know the gun was loaded. I referred earlier to his account of having pulled the trigger after removing the gun from the jacket where he had found it.[47] The gun had been in his possession (either carried by him or in the glove box of his car) for the entire time between his first discovery of it and the shooting of Finnigan. It was not in dispute that the gun was loaded when the applicant pulled it from his trousers.
[47]See [70] above.

The police expert explained the cocking mechanism. Cocking ‘brings the firing pin back, which is held under spring tension and held back by the trigger mechanism.’ He said that the gun had to be cocked manually but acknowledged under cross-examination that this could be done unintentionally:

Now if I have it in my trousers and I endeavour to pull it out it can be cocked in the process of pulling it out of my trousers? --- It can.
Now similarly, I’ll just watch that pin, if it’s in the back of my trousers and again if I pull it out in the process of pulling it out I can have cocked it, can’t I? It’s quite easy to do, isn’t it? --- You can, yes.
Thank you. So the bottom line with this gun is, apart from it being an illegal cut down rifle, it is an unsound weapon in that we’ve seen that it falls apart but it doesn’t have a trigger guard? --- That’s correct.
And that so at close contact if one’s got it cocked and if, for instance, someone came right up to a person and placed it at their neck with their hand or that person turned, if it’s pushed like that and the person turns it can be discharged by mere contact with the body? It’s a bit hard for me to do it on myself because I’m not going to do it to anybody else, but that’s true, isn’t it? --- I see what you’re saying but you still need pressure on the trigger.
Indeed, by making contact with the person it can occur? --- As long as the pressure’s on the trigger, yes.

As to the required pressure on the trigger, the expert told the jury that the pressure required on the trigger of this gun was 3.75 pounds or 1.7 kilograms. This was said to be within normal limits for a rifle. The expert also pointed out that the gun had a safety mechanism which, once engaged, meant that the gun could not be discharged accidentally. There was, however, no trigger guard. The presence of such a guard would prevent someone ‘inadvertently knocking the trigger and discharging the firearm.’ Defence counsel pursued this issue in cross-examination:

So even though the trigger pull on this gun is normal and it’s not what you’d call a hair trigger, if I bumped it against something, I’ve hit my finger, the gun is, you heard it click and fire then if it was loaded?---I did, yes.
So that all someone needs to do is bump close against something with their finger and they can cause it to be discharged whether they intended to pull the trigger or not?---Yes, as long as there’s enough pressure on the trigger - - -
I haven’t been slamming my arm as if to produce a bruise, I only have to push against another person, don’t I?---Yes. You have to push three, three-quarter pounds pressure.
Be that as it may, that’s easily achieved by what I’ve just done and demonstrated; isn’t that right?---Yes.

The applicant’s description of the shooting was brief. Asked by his counsel what he did with the gun after he had pulled it out, he answered:

I went to push him back with it, with the barrel. As I pushed him back with it, pushed and then I heard, pop … [My intention was] just to show him the gun. Just to say: “What are you going to do with this? Why even have it in the house?”.

Under cross-examination, the applicant gave these answers:

Where was the gun at the time that you first spoke to him?---I had freed it from behind my belt and it was in my hand like that, sort of pulled it out, not sure how, like that.
Did you bring it straight up as you pulled it out, or did you - - -?---First it was more to there, and then when he said “Oh” – what I said to him, “Oh, you think you’re a big man”, and he said something, and then that’s when I went – pushed it – pushed him back with it.
Why did you push him back with the gun?---I suppose it’s a stupid thing to do, but I did. I just wanted to push him back with the barrel.
Why didn’t you just push him back with your hand?---I could have done that.
Why didn’t you?---Well, I didn’t. I wasn’t thinking at the time.
So - - -?---I was quite upset too.
HIS HONOUR: Sorry?---I said I was quite upset at the time about the gun, so I wasn’t thinking.
PROSECUTOR: When you say you were upset, were you angry?---Angry and disappointed.
But you spoke very calmly at the time, didn’t you?---Yes, but I wasn’t in a rage.
No, you weren’t in a rage?---No.
How would you describe your state at that time?---Disappointed and angry.
What do you say you did with the pistol? Where did you put it?---What do you mean?
What did you do with it? You’ve got it up in your hand, you’ve had this conversation, pushing it towards [Finnigan], where did you get him with it?---Around about that area there.
Was the gun cocked when it was in your hand?---I don’t know.
You hadn’t at any stage checked inside to see if there was a bullet inside?--- No, I didn’t.
Did you hit him flat on?---I couldn’t say. All I know is I pushed it up against him here, around about this area here, and pushed back.
…
Then the gun just went off, did it?---When I pushed him back with it, took a step back, it went off.
So who took a step back?---Finnigan I believe.
Was he going backwards when the gun went off?---He might have been.
That’s your recollection of how this happened?---That’s right.
That it wasn’t a smooth action of bringing the gun up and bang?---No.

In final address, defence counsel argued that the only realistic possibility was that the gun was cocked accidentally when the applicant removed it from his trousers.

… [A] police firearms expert agreed that it is easy to cock it if it’s in your trousers and it would be if it’s tucked in tight because you’ve got the pressure of the belt, your large stomach and you pull it out by the black end …

Counsel argued that the gun would not have been cocked at the time it was in the applicant’s trousers, because that would have created a real risk of serious injury to the applicant. Equally, counsel noted, none of the eyewitnesses saw the applicant cock the gun after he removed it from his trousers. ‘[N]o one saw that. The gun came out in a fluid motion. No one saw a second hand come in and cock the gun.’

Counsel’s reference to ‘a fluid motion’ accurately reflected what the eyewitnesses had described, although – contrary to the applicant’s version – all three described the applicant as having pulled the gun from behind his back. Certainly none suggested – nor was it suggested to them in cross-examination – that the gun had appeared to get stuck or caught up as the applicant pulled it out, such as might have had the effect of inadvertently cocking the gun.

The prosecutor dismissed the accidental cocking theory. Referring to the police firearms expert, he said:

… [H]e agreed it can be cocked when being pulled out of the pants but he wasn’t asked how that would occur, what the mechanism is. And you know that you have to pull it so there has to be some force pulling it back and considerable force. You’ll have the exhibit in the room, you’ll be able to pull it, see how much force it takes. But what mechanism is going to cause that when the gun’s taken out? You saw Senior Constable Stewart was able to take it out. And then the demonstration, Mr Stewart pulling the gun out by the cocking mechanism again showed you there’s a fair amount of force required to make that gun cocked.

The prosecutor then turned to the defence proposition that the gun discharged by accident. He reminded the jury of the expert’s evidence that the gun could only be discharged if the requisite pressure was applied to the trigger. He pointed out by reference to a photograph of the gun (which was in the jury’s possession) that there was a distance of something like 50 mm, or two inches, between the end of the barrel of the gun – which the applicant said he was pushing against Finnigan’s chest – and the point where the applicant’s finger would have been resting against the trigger. That meant it was physically impossible for the trigger finger itself to bump against the chest, unless the gun was at an angle and somehow moved side-on against the victim. But, as the prosecutor correctly pointed out to the jury, ‘there is no evidence [of] anything like that having happened here. Straight out, bang.’

Certainly the applicant gave no such evidence.[48] It is necessary, nevertheless, to examine the defence submission regarding the apparent angle of entry of the bullet.
[48]See [97]-[98] above.

Angle of entry of the bullet

The post-mortem photographs showed, and the medical witnesses confirmed, that the point of entry of the bullet was at the base of the deceased’s neck. The expert pathologist called by the defence (Dr Dodd) expressed the opinion that the barrel of the gun was being placed hard against the skin at the instant of discharge. The Crown’s expert agreed that the possibility of hard contact could not be discounted. The defence relied on an x-ray showing the bullet lodged in the right shoulder region and argued that the gun must therefore have been pointed at an angle to the deceased’s chest, not perpendicular to the chest as the Crown maintained. Otherwise, counsel argued, it would have been expected that the bullet would have gone straight through and out the back of the deceased’s neck or would have lodged in his spine.

Under cross-examination, however, Dr Dodd was asked whether he could say at what angle the muzzle had been held:

That’s a little more difficult to say. It could have been perpendicular to the body or slightly angulated, but that’s a very difficult interpretation. I think the only way you can talk about angulation would be analysis of the trajectory of the bullet through the body, and even that may have been modified by bone and soft tissues within.

Dr Dodd clarified that, when he said the barrel had to be ‘hard against the chest’, he meant
that’s not just resting against the skin, it actually has some pressure and possibly would indent the skin at the instant of discharge.

Dr Dodd did not believe that the contact of the gun with the skin would have been a glancing blow. Nor did he consider that the sort of markings he observed on the deceased would have been caused had the gun been held at a 45 degree angle. To produce the observed markings, Dr Dodd said, the whole of the round end of the gun had to be in contact with the skin.

In re-examination of Dr Dodd, defence counsel explored the possibility that the observed marking could be caused if the gun

was pushed against the base of someone’s neck, which is soft, enabling the end of the muzzle to be pushed into the skin … and you turned it to the side, that could still leave the muzzle buried in the skin and leave a full circular abrasion …

Dr Dodd responded:
If there’s sufficient pliability of the skin to do that, yes, that is a distinct possibility. That would only – the only way that wouldn’t occur would be if it was a solid rigid part of the body like the actual chest wall. If it’s the skin of the abdomen or pliable skin of the neck, then you could angulate the muzzle and still get full representation of the muzzle against the skin.

Defence counsel relied on this evidence in final address, characterising the point of entry of the bullet as ‘a fleshy area’. That was, of course, a matter for the jury to consider having regard to the photos. The point of entry shown on the photographs is not, however, in the fleshy part of the neck but rather ‘a solid rigid part of the body like the actual chest wall’, to use Dr Dodd’s phrase.
The applicant’s behaviour after the shooting

The prosecutor’s closing address dealt shortly with the applicant’s reaction immediately following the shooting:

There he is, he’s just shot a child of his partner, he just walks off. Doesn’t ring an ambulance, doesn’t say “Oh my God what have I done”, “Quick help” nothing like that, cool as a cucumber, turns around and walks off. No concern at that stage for the person he shot in the chest.

The evidence of the eyewitnesses on this point was consistent, and unchallenged. After the shot was fired the applicant

just turned around and walked back and jumped in his car and drove off. [He said] not a word. He just turned around and walked down the driveway.

It was put to this witness in cross-examination that when the applicant got in his car there was no screeching of brakes. He answered, ‘No, he didn’t even really take off that fast, took off normally.’ According to JS, after the shooting Finnigan turned around and the applicant ‘walked back to his car, jumped in his car. He just jumped in his car and drove off.’ CH said that, after she heard a bang, the applicant ‘turned back around and got back in his car, and drove off.’

As noted earlier, the applicant’s explanation for leaving the scene was that he ‘went numb, I was just scared, I was frightened.’ He said he had panicked. His only thought was to go and get Mrs Finnigan.[49] This is how defence counsel in his final address sought to characterise the applicant’s reaction:

[The applicant] turns, he could be, as he said, numb, he doesn’t run to his car, he walks to his car, not the behaviour of someone who is trying desperately to get away from the scene of his crime lest there be yet more witnesses who might recognise his car, recognise him, and he drove away, but did he flee to Warrnambool, to Queensland? No. He drove a short distance around the block, because remember it was nearby that his wife or partner was working, to get the mother, and to bring her straight back.
Now that’s quite bizarre isn’t it? He hasn’t warned any of these people to keep quiet about anything. He hasn’t said anything to the boy, he doesn’t know if the boy is still alive, remember he turned and walked or ran depending on which version you have, around the back, and who’s he bringing back, the mother of this boy, his de facto. When he gets back he puts a windcheater under [Finnigan’s] chest.
…
His de facto’s child. He’s there. He would have to know that if the ambulance are being called the police are going to be there soon, but where is the gun. This one shot and throw it away gun. This assassin’s gun. Where is it? In a drain just around the corner? Throw[n] into someone’s backyard? I don’t know the area well but if you lived in the area there might be a woodland area, throw it there, and then get the mother, but he doesn’t, he puts the gun in the glovebox. He hasn’t got the heart to tell the mother “I just shot your son”. He puts it in the glovebox and he returns to the address. He’s on the phone out the front calling an ambulance … [W]hat happens in those situations? Sometimes you’ll get all the services there. You’ll get the SES, you’ll get a fire brigade, but you know that if it’s a shooting that the police are going to turn up, and so he waits and the police arrive. Is this – this is incredibly brave stuff. The boy’s alive, and if he’s capable of holding really serious conversations he’d say “[the applicant] shot me.” [The applicant] says “I was panicking and frightened”.

[49]See [78] above.

Doubtless defence counsel was correct to submit that the applicant did not behave like someone ‘trying desperately to get away from the scene of his crime’. Equally, in my view, he did not behave as might have been expected had the shooting indeed been a terrible accident. That was, of course, a quintessential jury question, to be decided on the basis of their experience of human behaviour. In my opinion, this behaviour was flatly inconsistent with how any person in the applicant’s position would be likely to have responded had he/she accidentally shot someone in the base of the neck.

On the applicant’s version of events, he had not had the slightest thought of causing harm to Finnigan. On the contrary, he was concerned for Finnigan’s welfare, wanting to make sure he did not end up in gaol. He wished only to remonstrate with Finnigan and to make him face up to his responsibilities and, in particular, to provide some explanation about the presence of the gun. If that were so, it seems to me almost inconceivable that, once the gun discharged and the bullet had entered Finnigan’s body near his vital organs, the applicant would not have displayed immediate and frantic concern for Finnigan’s well-being and insisted that an ambulance be called immediately, or called one himself. As it happened, however, the applicant displayed no emotion, made no expression of concern and made no attempt to find out how badly wounded Finnigan was. He simply walked away. Although he had his mobile phone with him, he did nothing to arrange for an ambulance until after he had gone to collect Mrs Finnigan and had returned to the scene of the shooting. In those circumstances, the jury ‘might reasonably conclude that it would put an incredible strain on human experience’[50] to accept even the possibility that it was an accident.
[50]Plomp v The Queen (1963) 110 CLR 234, 243 (Dixon CJ).

Absence of motive

As noted earlier, the first of the eight matters relied on by the defence was absence of motive. The prosecutor conceded in final address that the Crown had not proved a motive for the shooting but said, correctly, that this was not an essential ingredient of the charge of murder. Acknowledging that this was so, defence counsel went further and argued that not only had no motive been shown but that the evidence pointed to the absence of a motive. That, he contended, was a factor which the jury could take into account in determining whether the applicant had intended the death or serious injury of the deceased.

In his charge to the jury, the trial judge confirmed to the jury that, as both counsel had told them, there was

no necessity to prove a motive in a crime. The crime is proved, the motive is not necessary. It is not necessary to prove a motive. If there is a motive then that may strengthen the Crown case, but it is not an essential part.

Ground 3 contends that the judge erred by not directing the jury ‘that the absence of any evidence of a motive on the part of the applicant was a consideration in his favour on the question of intention.’ It was submitted that, given that absence of motive was ‘a critical aspect of the defence case that death resulted from an accidental shooting’, and further because the charge was murder, the jury should have been directed that the absence of a proved motive was a consideration counting in favour of the applicant on the question of intention.

In my opinion, this submission (and hence Ground 3) must be rejected. The authorities relied on by the applicant provide no support for the proposition that the judge was bound to give any such direction. Far from assisting the applicant, what was said in the joint judgment in De Gruchy v The Queen[51] (Gaudron, McHugh and Hayne JJ) provides the answer to the submission.

The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of “positive significance”, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.
It clearly appears from the trial judge’s directions that much emphasis was placed on the absence of motive in defence counsel’s final address. Apart from instructing the jury, correctly, that the prosecution did not have to prove motive, nothing was said by the trial judge to detract from the force of defence counsel’s submission in that regard. …[52]

[51](2002) 211 CLR 85.

[52]Ibid 93 [30]-[31]; see also Griffiths v The Queen (1994) 69 ALJR 77.

It may be that the prosecutor conceded more than was necessary in relation to motive. After all, anger, and a desire to punish, are motive forces of human action. All too often, anger motivates violent behaviour, sometimes murderous behaviour. But it is unnecessary to resolve this question. It is sufficient to say that this was not a case of proven absence of motive.

Conclusion

In my opinion, the jury’s verdict is neither unsafe nor unsatisfactory. I do not consider that the jury ought to have had a reasonable doubt as to whether the shooting was accidental.

There was no ‘obstacle’ to a guilty verdict. On the contrary, there were, as I have sought to illustrate, very significant obstacles in the way of the jury’s acceptance of the defence theory of accident. Of course, the defence had only to raise a reasonable doubt in the jury’s mind. It was for the prosecution to exclude the possibility of accident. But in my view, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the possibility of accident had been excluded, having regard at least to:

·the fact that the gun was loaded when the applicant pulled it out of his trousers and was cocked when he placed it against Finnigan’s chest;
·the lack of any description from the applicant or from eyewitnesses of any action by him which would have had the effect of cocking

·the gun accidentally;
·the applicant’s unsatisfactory explanation of his reason for showing the pistol to LC;
·the applicant’s unsatisfactory account of his reason for confronting Finnigan with a gun; and
·his complete failure to respond to the shooting as he would have been expected to respond had it in truth been an accident.

Questions were properly raised by the defence about the improbability of a shooting in these circumstances being intentional. But much of the applicant’s admitted behaviour that morning was improbable, almost inexplicable. I refer, for example, to his having confronted first LC, then Finnigan, with a gun, and to his having failed to tell Mrs Finnigan immediately that he had (accidentally) shot her son. For the reasons I have given, I do not consider that any of the matters raised by the defence precluded the jury from being satisfied beyond reasonable doubt that this was an intentional shooting.

BUCHANAN JA:

I agree with the President, for the reasons he has stated, that the application for leave to appeal against conviction should be refused.

With respect to the complaint that the verdict was unsafe and unsatisfactory, it was common ground between the parties that before the gun discharged, the applicant placed it against the deceased’s body. The jury was entitled to find that the applicant had loaded and cocked the gun. The applicant felt anger towards, or at least irritation with, the deceased. When the gun discharged and the deceased fell, the applicant behaved as if he had intended to bring about that result. I do not think that the jury, which heard, and could evaluate, the applicant’s account of the shooting, were bound to have a reasonable doubt as to the guilt of the applicant.

WHELAN AJA:

For the reasons given by the President, I agree that the application for leave to appeal should be refused.

---

[2008] VSCA 47

26 March 2008