Stanton v R

[2001] WASCA 189

STANTON -v- THE QUEEN [2001] WASCA 189

Reported Decision:	(2001) 24 WAR 233
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 189
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:213/2000	Heard:	20 APRIL 2001
Coram:	MALCOLM CJ MURRAY J OWEN J	Delivered:	22/06/01
No of pages:	31	Judgment Part:	1 of 1
Result:	Appeal dismissed
PDF Version

Parties:	KENNETH FRANCIS STANTON THE QUEEN
Catchwords:	Criminal law and procedure Indictment for wilful murder Verdicts open on such an indictment Whether there is a particular order in which the verdicts must be considered
Legislation:	Criminal Code (WA) Juries Act 1957 (WA)
Case References:	Beavan v The Queen (1954) 92 CLR 660 Black v The Queen (1993) 179 CLR 44 Brown v The Queen (1913) 17 CLR 570 Falconer v The Queen (1991) 171 CLR 30 Gammage v The Queen (1969) 122 CLR 444 Garrett v The Queen [1999] WASCA 169 Gilson v The Queen (1991) 172 CLR 353 Hawkins v The Queen (1994) 179 CLR 500 Jemielita v The Queen, unreported; CCA SCt of WA; Library No 950348; 27 July 1995 Johns v The Queen (1979) 141 CLR 409 MacKenzie v The Queen (1996) 190 CLR 348 McCready v The Queen [1967] VR 325 Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 Packett v The Queen (1937) 58 CLR 190 Perkins v The Queen [1983] WAR 184 R v Dodd [1960] WAR 42 R v Shipley (1784) 4 Doug 171 R v Watson [1988] 1 QB 690 Smith v The King [1932] 35 WALR 1 Smith v The Queen (1992) 7 WAR 526 Ward v The Queen [2000] WASCA 413 Wilde v The Queen (1988) 164 CLR 365 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : STANTON -v- THE QUEEN [2001] WASCA 189 CORAM : MALCOLM CJ

MURRAY J
OWEN J

HEARD : 20 APRIL 2001 DELIVERED : 22 JUNE 2001 FILE NO/S : CCA 213 of 2000 BETWEEN : KENNETH FRANCIS STANTON

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Indictment for wilful murder - Verdicts open on such an indictment - Whether there is a particular order in which the verdicts must be considered

Legislation:

Criminal Code (WA)

Juries Act 1957 (WA)

Result:

Appeal dismissed

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Representation:

Counsel:

Appellant : Ms J G Fordham
Respondent : Mr J Mactaggart

Solicitors:

Appellant : Leonard Cohen & Co
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Beavan v The Queen (1954) 92 CLR 660
Black v The Queen (1993) 179 CLR 44
Brown v The Queen (1913) 17 CLR 570
Falconer v The Queen (1991) 171 CLR 30
Gammage v The Queen (1969) 122 CLR 444
Garrett v The Queen [1999] WASCA 169
Gilson v The Queen (1991) 172 CLR 353
Hawkins v The Queen (1994) 179 CLR 500
Jemielita v The Queen, unreported; CCA SCt of WA; Library No 950348;
27 July 1995
Johns v The Queen (1979) 141 CLR 409
MacKenzie v The Queen (1996) 190 CLR 348
McCready v The Queen [1967] VR 325
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260;
22 May 1997
Packett v The Queen (1937) 58 CLR 190
Perkins v The Queen [1983] WAR 184
R v Dodd [1960] WAR 42
R v Shipley (1784) 4 Doug 171
R v Watson [1988] 1 QB 690
Smith v The King [1932] 35 WALR 1
Smith v The Queen (1992) 7 WAR 526
Ward v The Queen [2000] WASCA 413
Wilde v The Queen (1988) 164 CLR 365




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Case(s) also cited:

Nil

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1 MALCOLM CJ: This is an appeal against the appellant's conviction on 18 September 2000 after trial that on 11 March 1999 at Lake Clifton he wilfully murdered his wife, Marie Ann Stanton.

2 The relevant facts and circumstances are fully set out in the reasons to be published by Owen J.

3 The grounds upon which the appellant seeks leave to appeal are as follows:

"1. The learned trial Judge directed the jury at T1002 as follows:

'You first consider wilful murder and if you're unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he's not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder. If you are unanimously of the view that he is guilty of murder, then that will be your verdict.

If you are unanimously of the view that he is not guilty of murder, then you will consider manslaughter.'


2. The learned trial Judge further directed the jury at T1006 as follows:

'You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder.'

3. The learned trial Judge erred in law in giving the directions for the following reasons:

A. The jury was directed to consider it's [sic] verdict in a particular order. The jury should have been directed that it could consider it's [sic] in any order.

B. The directions, taken together and as a whole, had the effect of precluding individual members of the jury from considering manslaughter at all so long

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as any one of the jury found that the accused was guilty of wilful murder. The jury should have been directed that it could return any verdict consistent with the evidence."

4 At the trial, the appellant maintained that he had taken a loaded gun to the house occupied by his estranged wife to frighten her. He denied any intention to kill or harm her. The defence case was that the shooting was accidental in that it was the result of an unintended act. As Owen J has pointed out in his reasons, it was common ground that, on the evidence, a substantial issue at the trial was whether the appellant was guilty of wilful murder or manslaughter, although verdicts of guilty of murder or not guilty of any offence were technically or legally open.

5 The learned trial Judge directed the jury that they should first consider whether the killing was unlawful, which, in turn, invited the question whether they were satisfied beyond reasonable doubt that the Crown had negatived accident. If they were so satisfied, the appellant would, at the least, be guilty of manslaughter. The jury were then directed about the elements of wilful murder, murder and manslaughter. There is no complaint about these directions. After directing the jury about the crime of wilful murder, the learned Judge directed the jury that:

"As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed. You must unanimously come to that conclusion before you move to consider whether the alternative crime of murder has been proved."

6 After directing the jury about the crime of murder, the learned Judge directed the jury that:

"If you are unanimously of the view that the crime of murder has not been proved, then you can proceed to consider the alternative verdict of manslaughter."

7 His Honour then directed the jury about the elements of the crime of manslaughter in a way that is not challenged.

8 After the jury had been deliberating for some four hours, a question was communicated to his Honour. When the Court reconvened, the learned Judge said:

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"Madam Foreman, ladies and gentlemen, the question you have asked is this:

'If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to move down to manslaughter?'

Is that right? That's the question? Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous."

9 A little over an hour later, the jury returned a unanimous verdict of guilty of wilful murder.

10 Like Murray J, I find myself in substantial agreement with Owen J that the answer given to the question asked by the jury was such that there was a danger they may have gained the impression that they could not consider manslaughter unless and until they had reached a unanimous verdict that the appellant was not guilty of wilful murder. This was a misdirection which, as Murray J has also concluded, exposed an error of law. Specifically, I agree with Murray J that cases such as Beavan v The Queen (1954) 92 CLR 660; and Gammage v The Queen (1969) 122 CLR 444 support the view that he has expressed in terms of verdicts being supportable by the jury being satisfied beyond reasonable doubt of the presence of the relevant elements of the offence, rather than upon their unanimous satisfaction that the proper verdict in relation to a more serious offence is one of not guilty. It must necessarily follow that a conviction of manslaughter following upon a verdict of not guilty of wilful murder or murder may rest only on the basis that the jury were unable to unanimously conclude beyond reasonable doubt that the act which caused the death was done with the necessary specific intention.

11 I agree with both Murray J and Owen J that there is no need to consider the question of insanity affecting criminal responsibility before the jury are satisfied that the accused has unlawfully killed the deceased without regard to the question of unsoundness of mind and that, similarly, the law does not require that the Judge direct the jury that they should consider the question of guilt or innocence of wilful murder, murder or manslaughter in any particular order.

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12 It follows that the directions given by the learned Judge, particularly in relation to the question raised by the jury after they had been deliberating for some four hours, was a misdirection involving an error of law. In the end, however, I agree with Murray J that there was no miscarriage of justice and the proviso in s 689(1) of the Criminal Code is applicable on the basis that no substantial miscarriage of justice has actually occurred.

13 For those reasons, I would grant leave to appeal, but I would dismiss the appeal.

14 MURRAY J: I am grateful in this case to have had access to the reasons for decision to be published by Owen J. There is much in them with which I would agree but I regret that I find myself taking a different view of one aspect of the law to that expressed by his Honour and taking a different view as to what the result of the appeal should be.

15 The ground of the appeal is that the learned trial Judge in this case misdirected the jury by telling them that they must consider first the offence charged in the indictment, that of wilful murder, and only if they were unanimously of the view that the appellant was not guilty of wilful murder, should they proceed to consider whether or not he was guilty of murder, an alternative conviction open upon the indictment. Only if the jury were unanimously of the view that the appellant was not guilty of murder should they consider whether he was guilty of manslaughter. The appellant's contention is that this direction was wrong in law and caused a miscarriage of justice in that the appellant was deprived of the opportunity to be convicted of the lesser offence of manslaughter, or indeed, acquitted entirely.

16 As Owen J has pointed out, there was ample evidence that the appellant shot his estranged wife and caused her death. His defence was that he was not criminally responsible for that killing, that it was not an unlawful killing although he must have caused the weapon to discharge, because the act of shooting his wife which directly caused her death was an act which occurred independently of the exercise of his will: the first limb of s 23 of the Criminal Code (WA). As Owen J has remarked, the evidence available to counter that view of the facts was substantial and it was well open to the jury to conclude, not only that the appellant killed his wife, but that his act of doing so was a willed act and therefore unlawful.

17 In that event the appellant was exposed to conviction of at least the offence of manslaughter. Whether he was to be convicted of wilful

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murder or murder depended upon the question whether the jury were satisfied beyond reasonable doubt that the appellant killed his wife intending to cause her death or at least that he did so intending to do her some grievous bodily harm. Again, the evidence was strong that if the appellant was established beyond reasonable doubt to have had such a specific intention, it would be difficult to see upon what ground it would be found to be an intention to do grievous bodily harm rather than to kill. But those were all issues of fact for the jury to resolve and in succinctly expressed directions, about which the appellant has no complaint, all the issues that I have mentioned above were fairly and properly explained to the jury and left for their consideration.

18 In particular, his Honour expressly told the jury that they could not convict the appellant of wilful murder unless they were satisfied beyond reasonable doubt that not only did he unlawfully kill his wife, because they were satisfied beyond reasonable doubt that the shooting was not accidental, but that he did so with the intent to kill. His Honour gave a direction about the crime of murder in appropriate terms which would have left the jury with no doubt that they could not convict of that alternative offence unless they were satisfied beyond reasonable doubt of the intention to do grievous bodily harm. The difference between those offences and manslaughter was clearly explained.

19 But it is the case that during his charge to the jury the trial Judge told them that they "couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed." Then his Honour went on to say, after discussing murder, "If you are unanimously of the view that the crime of murder has not been proved, then you can proceed to consider the alternative verdict of manslaughter." Having dealt with the elements of the offence of manslaughter and the concept of accident, his Honour said, "If you are unanimously of the view that he is not guilty of manslaughter, then the verdict will be not guilty."

20 Although his Honour immediately went on to qualify the last observation, in terms which were correct having regard to where the onus of proof lay, by telling the jury that, "Unless you are satisfied to the required degree that the shooting was not accidental, then the verdict must be not guilty", there was I think a danger in the approach taken. It may reverse the onus of proof if the jury are told that they may not convict of a lesser offence or acquit entirely unless they are affirmatively satisfied or unanimously of the view that conviction of the more serious offence is not open. With respect to his Honour, there seems to me to be a difference

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between the notion that the jury is not satisfied beyond reasonable doubt of guilt of an offence and the notion that they are unanimously of the view that a crime has not been committed or has not been proved.

21 However, I should say immediately that, as his Honour went from those remarks to a statement which was, with respect, perfectly correct about the onus of proof in respect of the question of intent, had the matter rested at that point it would have been necessary to deal with the question whether, in their entirety, the directions were or were not wrong in law. However, as Owen J has explained, the matter did not rest there because some four hours after they commenced their deliberations the jury returned with the question and received the answer set out by Owen J in his reasons. Finally, just over an hour later, they returned with the unanimous verdict of guilty of wilful murder.

22 In my respectful opinion, the directions of the trial Judge that in their deliberations upon this indictment the jury must in effect be unanimously of the view that the appellant was not guilty of a more serious offence open on the indictment before they could convict of a less serious offence or acquit entirely, were wrong in law. In that regard, I find myself of a different view to that expressed by Owen J and I have formulated my conclusion in the manner set out above so that, at this stage, I avoid any reference to the order in which the jury might be directed in their deliberations to resolve particular issues of fact requiring their decision.

23 I would add the observation that I would consider that conclusion one appropriate to any indictment which permits a lesser verdict of conviction to be returned upon a charge of a particular offence, either because the other offence is one "which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment": Criminal Code, s 594, or because the alternative conviction is open under any other provision of Ch 63 of the Code.

24 In my respectful opinion, the problem discussed by the High Court in Gilson v The Queen (1991) 172 CLR 353 is of a different character and does not assist with this appeal. Gilson concerned the efforts of the common law to establish rules to overcome the situation, as their Honours Mason CJ, Deane, Dawson and Toohey JJ put it at 363, that the jury might be required, "to acquit an accused entirely when they are convinced beyond reasonable doubt that he was guilty of either theft or receiving, merely because, as a result of being required to apply the same standard of proof, they cannot determine which offence he committed."

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25 To address that type of problem, which on a strict application of principle ought to result in an acquittal, both the common law and the Code in s 586 provide for special verdicts: see the third paragraph of s 586(4). The verdict is not a general verdict in the sense understood by the law that it, of itself, disposes of the indictment: Code, s 652 and s 654, but is a special verdict in the sense contemplated by the Code, s 642 and s 653(1), in that the result in terms of the order of conviction or other order dependent upon the verdict depends upon the judgment of the court rather than upon the verdict of the jury itself.

26 Specifically in respect of the general verdicts open upon an indictment for wilful murder, they are provided in the Code, s 595 and the Table set out, but that is a section which, as are all in Ch 63 of the Code, simply provides the lawful capacity to convict of the alternative offence, "if that offence is established by the evidence." That must be a reference to an offence established by plea or after a trial, as s 654 provides. It is trite to say that at trial the conviction will be that produced by the verdict of the jury, or by a Judge alone under s 651B(1). It is also trite to say that, although the Code does not expressly deal with this aspect, its provisions are written upon the basis that at trial the verdict of guilty will be one produced by affirmatively satisfying the tribunal of fact of guilt beyond reasonable doubt, thereby overcoming the presumption of innocence which until that point in the trial applies with full force.

27 The verdict of the jury is a single verdict by a tribunal of fact which acts collectively. Both the Code and the Juries Act 1957 (WA) provide for that, if not expressly then by necessary implication: see such provisions as the Code, s 622, s 632, s 638, s 639, s 642, s 652 and especially s 644 which inter alia provides:

"If the jury cannot agree as to the verdict to be given, … the court may, in its discretion, discharge the jury without giving a verdict, …"

What I take to be the express requirement of unanimity is only to be relaxed to the extent permitted by the Juries Act, s 41, which of course permits no departure from the requirement of a unanimous verdict in a case where the trial is for the offence of wilful murder or murder.

28 Putting those matters together leads me to the conclusion with which I started this discussion, which I may express shortly with express reference to this case by saying that, the indictment being for wilful murder, the verdicts open to the jury were, as a matter of law, guilty of wilful murder, guilty of murder, guilty of manslaughter and not guilty. A

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proper guilty verdict would be one produced by the jury being unanimously persuaded of guilt beyond reasonable doubt. In the event that they did not reach such a unanimous verdict, they would acquit of that offence, or of any offence.

29 It was open to the jury as a matter of law to decline to convict of any offence upon the basis that they were not unanimously persuaded of guilt beyond reasonable doubt. That might be the case if members of the jury remained of different views or were simply unable, in relation to the elements of any particular offence, to reach the required degree of persuasion to enable all of the individuals concerned to join in a unanimous verdict. It was not simply a choice, and need not be a choice, that they either were all unanimously of the view that they were persuaded of guilt beyond a reasonable doubt, or were all unanimously of the view that the accused was not guilty of a particular offence. To restrict it in that way, as the direction of the learned trial Judge did, exposes the error of law in my respectful opinion.

30 The correctness of that view is I think supported, not only by the provisions of the Code itself, but by those authorities discussed by Owen J which recognise that it is always within the lawful power of the jury to return a verdict of their choice open upon the indictment. It may not be necessary to mention an alternative and direct the jury about it, on the ground that, in the view of the trial Judge, the evidence would not support such a verdict without finding guilt of a more serious offence, but the jury must not be told that it is beyond their power to return a lesser verdict open on the indictment. In my opinion, the discussion in MacKenzie v The Queen (1996) 190 CLR 348 at 367 usefully assists to make this point and supports it, if upon no other basis falling within the description of a "merciful verdict" than upon the simple proposition that the jury may not have been able collectively in the particular circumstances of the case to remove reasonable doubt in such a way as to demand a verdict of guilty of a more serious offence open on the indictment.

31 In my opinion, cases such as Beavan v The Queen (1954) 92 CLR 660 and Gammage v The Queen (1969) 122 CLR 444, in the different contexts of those cases, support the views I have expressed because they talk of verdicts being supportable by the jury's satisfaction beyond reasonable doubt of the presence of the elements of the offence rather than upon their unanimous satisfaction that the proper verdict in relation to a more serious offence is one of not guilty. In particular, I see nothing in the obiter observations of Kitto J in Gammage at 453 - 454 which is inconsistent with that view. It is necessarily the case that to convict of

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manslaughter is to give a general verdict upon the indictment which necessarily acquits of wilful murder and murder, but that may only be upon the basis that the jury were not able unanimously to find beyond reasonable doubt the necessary specific intention to support either verdict.

32 However, to the extent that McCready v The Queen [1967] VR 325 expresses the view that the jury's disagreement about the offence charged makes irrelevant the accused's guilt of an alternative crime, I am unable to accept the correctness of that proposition.

33 I turn briefly then to the question of the order in which the jury were told to address the question of their verdicts in relation to the particular offences open on the indictment. On this part of the case I am grateful to be able to associate myself with the reasons of Owen J. It seems to me, with respect, that they are consistent with general principle and with the view that has been taken by this Court in the context of the question of insanity affecting criminal responsibility, leading to a special verdict under the Code, s 653. In my opinion, the decision of the High Court in Hawkins v The Queen (1994) 179 CLR 500, the decision of this Court in Garrett v The Queen [1999] WASCA 169 and the decision of this Court constituted by a bench of five Judges in Ward v The Queen [2000] WASCA 413 all establish that beyond the point that there is no need to consider the question of insanity affecting criminal responsibility before the jury are satisfied that the accused has unlawfully killed the deceased without having regard to the question of unsoundness of mind, there is no requirement of law to direct the jury that they should consider the question of guilt or innocence of the particular forms of homicide open on the indictment in any particular order.

34 With respect, it seems to me that one of the strongest arguments in favour of that proposition is that presented by Owen J when his Honour points out that the practical reality of the jury's deliberations will be that, having unanimously satisfied themselves that the accused has unlawfully killed the deceased, and being then at the point of needing to address the issue of intention to determine which guilty verdict is to be returned, that question and the evidence bearing upon it will be addressed as one issue upon the same body of evidence to determine whether the jury are unanimously persuaded beyond reasonable doubt that the accused intended to kill, that whether or not some jurors would be so persuaded all are unanimously of the view that at least he intended to do grievous bodily harm, or they remain unable to form a unanimous view beyond reasonable doubt that one or other intention has been established, are left with

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unanimity only upon the question of the unlawful killing and so return a verdict of guilty of manslaughter.

35 In those two aspects of the direction therefore, it seems to me that error occurred in this case. It was an error of law. But the question is whether to so conclude involves a miscarriage of justice, in which case I would respectfully agree with Owen J that no question of the application of the proviso would arise, or whether, despite the error of law, the appeal should be dismissed.

36 With respect to the contrary view, I do not consider that the error in this case was such as to cause the trial process itself to so miscarry "as hardly to be a trial at all.": Wilde v The Queen (1988) 164 CLR 365, 372 - 373. In my opinion, to misdirect the jury about the order in which they should deal with issues of guilt of offences arising upon the indictment was not to cause the trial process to become "fundamentally flawed". It was not such an error or "departure from the essential requirements of the law that it goes to the root of the proceedings." In my opinion it remains necessary to consider whether the error may have had any impact upon the verdict. Whether it may, as argued, have deprived the appellant of a chance of conviction for manslaughter or even of an absolute acquittal: Smith v The Queen (1992) 7 WAR 526.

37 The jury were wrongly told to be unanimously of the view that wilful murder was not the verdict to be returned before they went on to consider whether they should convict of manslaughter. But they were also told in terms about which no complaint is made how they might unanimously conclude that the accused was guilty of wilful murder. Nothing that the trial Judge said to the jury in that part of the direction which was wrong in law detracted in any way from the correctness of those directions. The jury continued their deliberations and ultimately returned a verdict of guilty of wilful murder.

38 In my opinion, the proper conclusion is that, having in effect been told not to consider whether they should return a verdict merely of manslaughter, but to continue their deliberations about wilful murder, the jury did so and properly in accordance with the evidence and correct directions of law, found themselves ultimately to be unanimously satisfied beyond reasonable doubt that the appellant unlawfully killed his wife intending to cause her death. Those who were not formerly of that view when they returned to the court to ask the Judge their question, changed their minds or resolved their doubts in the course of the continuing debate

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in the jury room, an entirely proper process in no way subverted by the directions given by the trial Judge.

39 For those reasons, although I am persuaded of the error of law, I would dismiss the appeal.

40 OWEN J: The appellant was convicted by a jury of one count of wilful murder. This is an appeal against the conviction.

Background

41 On 11 March 1999 the appellant went to a house in Lake Clifton that was occupied by his estranged wife and which had formerly served as their matrimonial home. On that day the woman was shot and killed. It is not in dispute that the fatal shot was discharged from a shotgun taken to the premises by the appellant. Nor is it in dispute that he activated the trigger on the gun causing it to discharge. The Crown alleged that the appellant fired the gun intending to kill the woman. Hence the indictment alleging wilful murder.

42 The appellant faced a trial but the jury could not reach a verdict and was discharged. Between 13 and 18 September 2000 he faced a retrial. He denied any intention to kill. He said that he and his estranged wife had been in conflict for some time concerning the settlement of their matrimonial affairs. He went to the house that day to "frighten her, to make her see some sense and negotiate". He had not intended to menace her with the gun, "just to discharge it into the roof if necessary". He specifically denied any intention to kill or harm her. He said that although he could not recall it, he "must have" pulled the trigger on the weapon. He said that at one stage his wife came towards him and the gun went off.

43 The appellant's defence to the charge of wilful murder was that it was an accident. I think it is common ground that the word "accident", so far as the defence was concerned, was used in the sense of an unintended act rather than the more technical meaning ascribed to the concept of accident in s 23 of the Criminal Code. It is also common ground that for all practical purposes the choice that the jury had was between wilful murder and manslaughter. Although verdicts of guilty of murder or not guilty were legally open, the evidence would not have supported either of those outcomes.

44 In his summing up the trial Judge invited the jury to consider, first, whether the killing was unlawful, that is, whether the Crown had

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negatived accident. If the jury were satisfied that the killing was unlawful then the verdict would have to be at least manslaughter.

45 His Honour left to the jury the alternative verdicts of wilful murder, murder and manslaughter. He described the elements of each of those offences in a way that is entirely accurate and unexceptional and which is not now the subject of challenge. Having discussed the elements of wilful murder, his Honour said:

"As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed. You must unanimously come to that conclusion before you move to consider whether the alternative crime of murder has been proved."

46 The trial Judge went on to tell the jury about the crime of murder. He then said:

"If you are unanimously of the view that the crime of murder has not been proved, then you can proceed to consider the alternative verdict of manslaughter."

47 Again, he went on to discuss the elements of the crime of manslaughter in a way that is not under challenge. After the jury had been deliberating for about four hours a question was relayed to the trial Judge. When the jury returned, this exchange occurred:

"Madam Foreman, ladies and gentlemen, the question you have asked is this:

'If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to move down to manslaughter?'

Is that right? That's the question? Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous."

48 Having deliberated for a further period, a little in excess of one hour, the jury returned a unanimous verdict of guilty of wilful murder.
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The Grounds of Appeal

49 In the grounds of appeal the appellant contends that the passages that I have quoted, including the answer to the question raised by the jury, are a misdirection for two reasons. First, the jury were directed to consider their verdicts in a particular order (namely wilful murder, then murder, then manslaughter) when they should have been told that they could consider the verdicts in any order. Secondly, the directions taken as a whole had the effect of precluding individual jury members from considering manslaughter so long as any one of them found the accused guilty of wilful murder. The jury should have been told that they could return any verdict so long as it was consistent with the evidence.

50 The appeal raises a short, but important, point. It goes to the way in which a jury should operate once they have commenced deliberations. It also brings into question the nature of the deliberative process where alternative verdicts are open. It seems to me to be necessary to distinguish between the process of reasoning and deliberation by which a jury reaches a verdict on the one hand, and the verdict itself on the other. To demonstrate the importance of the distinction I need first to consider the role of the jury in a trial on an indictment charging wilful murder.

Homicide Verdicts

51 There is no doubt that on an indictment charging an accused person with wilful murder it is within the power of the jury to return verdicts of murder, manslaughter or not guilty. This is the proper way to construe s 277 of the Criminal Code: R v Dodd [1960] WAR 42 at 52; Jemielita v The Queen, unreported; CCA SCt of WA; Library No 950348; 27 July 1995. But there is an important distinction that needs to be borne in mind. Where the state of the evidence is such that no reasonable jury could properly return any verdict other than, say, wilful murder or not guilty, it is not encumbent on the trial Judge to direct the jury that they may technically bring in a verdict of guilty of murder or manslaughter. On the other hand, the jury must not be misled into thinking that one of the lesser verdicts is beyond their power: Brown v The Queen (1913) 17 CLR 570; Packett v The Queen (1937) 58 CLR 190 at 213.

52 The position was squarely put in Beavan v The Queen (1954) 92 CLR 660. The Court said, at 662 - 663:

"Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence

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which might reasonably be adopted, would the crime amount to manslaughter and not murder, and counsel for the prisoner has not suggested to the jury the possibility of their returning a verdict of manslaughter, the judge is under no duty to inform the jury that it is within their power to find a verdict of manslaughter, unless the jury ask a question upon the subject. In that case it will usually be incumbent upon the judge to inform them that upon an indictment for murder it is within the province of a jury to find a verdict of manslaughter ; but it is proper for him to add an expression of his opinion that in no view of the evidence which the jury might reasonably take are findings of fact open that fall short of murder but amount to manslaughter. If, however, the jury do exercise their power to find a verdict of manslaughter, and it is certain that they were satisfied beyond reasonable doubt that the prisoner unlawfully killed the deceased, the verdict of manslaughter will not be invalidated merely because the facts proved by the evidence upon which the jury must have acted amount in point of law to murder.

If, however, the jury do exercise their power to find a verdict of manslaughter, and it is certain that they were satisfied beyond reasonable doubt that the prisoner unlawfully killed the deceased, the verdict of manslaughter will not be invalidated merely because the facts proved by the evidence upon which the jury must have acted amount in point of law to murder. The verdict must be taken to mean that the jury were satisfied of all the elements of the crime of murder except the existence of the requisite intention or other form of malice aforethought but that they were not prepared to find that this element existed. It is within a jury's province to refuse to make this or any other finding involving guilt and it is by that refusal that the verdict of manslaughter is warranted."

53 There is, of course, a tension between the broad statement that a jury must be permitted to return any verdict that is within their power and the requirement that a jury must return a true verdict according to the evidence. Sometimes a trial Judge will form the view that the evidence could not support a verdict of manslaughter. However, if so requested by the accused or if it is raised on a question from the jury, the trial Judge is obliged to tell the jury that such a verdict is within their power. In such a case the trial Judge should give a clear statement as to when the jury might properly return such a verdict and, if appropriate, that they could

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not properly do so in the circumstances of the case. If a jury were, in the first instance, to pronounce a verdict of manslaughter the trial Judge could request them to reconsider. However, if the jury were to persist in returning a verdict of manslaughter the trial Judge would have no alternative other than to accept it: Packett per Dixon J at 213. This does not mean that the jury has a right to return a wrong verdict. But it remains within their power or privilege to do so: Gammage v The Queen (1969) 122 CLR 444 at 450 - 451.

54 This has been part of the law for a very long time. In R v Shipley (1784) 4 Doug 171 Lord Mansfield said, at 176:

"It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they still have it in their power to do wrong, which is entirely a matter between God and their own consciences."

55 Why is this so? One of the answers is that it must always be open to a jury, when an accused is charged with wilful murder or murder, to return a "merciful verdict of manslaughter". It has long been recognised that it is always open to a jury, as a proper exercise of their function, to take a merciful view of the facts: MacKenzie v The Queen (1996) 190 CLR 348 at 367. However, the phrase "a merciful verdict of manslaughter" has to be properly understood. As Barwick CJ said in Gammage,at 451:

"One other source of misunderstanding is the occasional judicial use of the expression 'merciful verdict of manslaughter'. Such an expression might, in my opinion, be intended to mean and ought to be read as meaning no more than that the jury may have been unduly swayed, maybe by feelings of humanity, to feel doubt as to implications of the evidence adverse to the accused. But, in my opinion, such an expression because of its ambiguity should have no currency in the criminal law."

56 With this background in mind, I turn to consider how a jury should be directed in relation to the alternative verdicts.

The Return of Verdicts

57 The first question relates to the pronouncement of verdicts. I am here referring to the end result of the juries' deliberations rather than to the process by which the result is reached. There is authority for the

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proposition that a jury could not return a verdict of guilty of manslaughter unless they had first acquitted the accused of the more serious charges.

58 In Gammage, Kitto J said, at 453 - 454:

"In a true case of murder or nothing this operates to give validity to a verdict of manslaughter notwithstanding the inconsistency between that verdict and the antecedent verdict of not guilty of murder; but it is not a source of the power to acquit of murder: its reference to acquittal of murder is only for the purpose of making such an acquittal a condition precedent to the conviction of manslaughter. It was because of this that in Beavan v. The Queen (1954) 92 CLR, at p 663 the position under s 23(2) was assimilated to the position at common law. The common law, authorizing as it did a verdict of guilty of manslaughter on an indictment for murder, always made it a condition of the validity of that verdict that the jury should first have returned a verdict of not guilty of murder. Thus in Hawkins' Pleas of the Crown, 8th ed. (1824), at pp. 619,620, it is said to have been adjudged first that where the jury find a man not guilty of an indictment or appeal of murder they are not bound to make any inquiry whether he be guilty of manslaughter, but that if they will they may, according to the nature of the evidence, find him guilty of manslaughter; and secondly (citing the interesting case of one Mansell (1584) 1 And 103, at p 104 (123 ER 376, at p 377), in the reign of Elizabeth I) that if the jury on an indictment or appeal of murder find the defendant guilty of manslaughter without saying anything expressly as to the murder, it is insufficient and void, as being only a verdict as to part. (at p454)" [my emphasis]

59 The reference in that passage to "s 23(2)" is to the Crimes Act 1900 (NSW). That section is in different terms to s 277 of the Criminal Code. However, as Kitto J pointed out, s 23 proceeds from the common law. So, too, do the equivalent provisions of the Criminal Code: see Packett per Dixon J at 213.

60 Although the other members of the Court in Gammage agreed with the result reached by Kitto J none of them expressed themselves in terms of an acquittal of the more serious charge being a condition precedent to a conviction on the alternative count. Menzies J explained the comments from Beavan (set out above) in this way, at 456:

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"The significance of this passage is, I think, best understood by concentrating attention upon what a verdict of manslaughter in the circumstances envisaged must be taken to mean, viz. 'that the jury were satisfied on all the elements of the crime of murder except the existence of the requisite intention or other form of malice aforethought but that they were not prepared to find that this element existed', in other words, that the jury were not satisfied beyond reasonable doubt of the mental element necessary to convict of murder."

61 It must be acknowledged that the comments of Kitto J (and for that matter Menzies J) that I have set out are strictly obiter. In Gammage the jury had returned a verdict of guilty of murder, the equivalent of which under the Code is wilful murder. But they contain important statements of principle that cannot easily be ignored.

62 When Menzies J made the statements that "the jury were satisfied" and "they were not prepared to find" he must be taken to have been referring to the collective decision making processes that a jury undertakes. The principle that a jury is required to reach a unanimous decision has been part of the common law since before the jury was regarded as a judicial tribunal. It has been traced as far back as 1367, even before the jury commenced exercising any real judicial functions: see Devlin P, Trial by Jury, 1966, pp 48 - 49. Somewhat surprisingly, the principle does not appear expressly in either the Code or the Juries Act 1957 (WA), although it is certainly implicit in s 41 of the latter enactment which provides for majority verdicts in most cases. There are various theories as to why the unanimity principle emerged: see D M Downie, "And is that the Verdict of You All", (1970) 44 ALJ 482 at 483 - 484. Whatever its origins may have been, it survives and it means that in reaching a decision the jury members must act collectively. If they cannot agree, or cannot agree by the requisite majority, then the proper course is to say so and the jury will be discharged.

63 There is other authority to the same effect in relation to alternative verdicts generally. In McCready v The Queen [1967] VR 325 the Court was considering s425(1) of the Crimes Act 1958 (Vic) which provides: "Where on a trial of a person charged with rape … the jury are not satisfied that he is guilty therefore, but are satisfied that he is guilty of an assault with intent to commit the same, they may return as their verdict that he is not guilty of the offence so charged and may find him guilty of the crime of assault with intent to commit rape". The Court said at 329:

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"The terms of that section, in our view, make a verdict of assault with intent to commit rape dependent on the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of the crime of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant."

64 I acknowledge immediately that the case is not directly applicable because it depends on the wording of a statute that may or may not reflect the underlying common law. But what it does do is indicate that the if the jury is in a state of disagreement (that is, they are not all of the same view) on the more serious charge they cannot return a verdict on the lesser alternative charge.

65 Another case that deserves close examination is Gilson v The Queen (1991) 172 CLR 353. A person had been charged in the alternative with stealing and receiving stolen goods. The prosecution case proceeded primarily, if not entirely, on the doctrine of recent possession. The evidence was consistent with either charge. The Court held that if the jury were satisfied beyond reasonable doubt that the accused is guilty of one or other of the offences but is unable to say which, they should return a verdict of guilty of the less serious offence. Gilson concerned the position in South Australia, which is a common law State. The position under the Criminal Code is different; see s 586. The Court considered Privy Council authority that in the circumstances described the jury should be directed to bring in a verdict of guilty of the offence which was "more probable". The Court rejected that approach. Mason CJ, Deane, Dawson and Toohey JJ said, at 363 - 364:

"The Code provisions provide a satisfactory solution to the problem. It is clearly unsatisfactory to require a jury to acquit an accused entirely when they are convinced beyond reasonable doubt that he was guilty of either theft or receiving, merely because, as a result of being required to apply the same standard of proof, they cannot determine which offence he committed. The law must surely be brought into disrepute if it is so bereft of answers that an accused who is clearly guilty of one offence or the other is allowed to escape conviction altogether. … The trial judge, rather than directing the jury to return a verdict of guilty of the offence which they consider to have been the more probable, should direct them that, if they are satisfied beyond

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reasonable doubt that the accused either stole the property or received it knowing it to have been stolen, but they are unable to say which, then they should return a verdict of guilty of the less serious offence."

66 This is not consistent with the concept that an acquittal on the more serious charge is a condition precedent to a guilty verdict on a lesser charge. It is a peculiar situation where exactly the same factual scenario, relying almost entirely on inferences drawn from, or due to, a specific legal concept (namely, the doctrine of recent possession) would ground a conviction for the offence charged or the alternative count. Even assuming (and I am not sure that it a valid assumption) that the alternative verdicts available on an indictment charging with wilful murder present a similar scenario I doubt that the result announced in Gilson could be applied directly to homicides under the Code. It would involve a question of construction. In the case of stealing and receiving the drafters of the Code have specifically provided for a verdict of guilty of the lesser offence. They have not done so in the case of homicide.

67 I come back to the concept that a jury must act collectively. Because this case involves a charge of wilful murder I can ignore the issues raised by majority verdicts. Unless all members of the jury agree they cannot announce a verdict, be it guilty or not guilty. In other words they can neither convict nor acquit. The indictment charges with wilful murder. True it is that on the indictment a jury could convict of either murder or wilful murder and if they were to do so, the indictment would be entirely satisfied. But the jury must still do so collectively.

68 In emphasising the duty of the jury to act collectively I have not overlooked what was said on that issue in Black v The Queen (1993) 179 CLR 44. Jurors have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room. References to a collective responsibility or duty are not to be understood as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors: see Black at 51. However, when it comes to delivering a verdict the responsibility is a collective one.

69 After this consideration of the authorities and as a question of principle I have come to the view that a jury, acting collectively, must approach the task of delivering a verdict in the way described in Gammage. They must dispose of the wilful murder count, one way or the other, before they can return a verdict on either of the lesser accounts. If

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the jury is in a state of disagreement in relation to wilful murder, they cannot return a verdict on either of the alternatives. They must say so and they will be discharged. A retrial is the appropriate option in those circumstances.

70 I realise that this raises some possibilities that are unpalatable. As counsel for the appellant pointed out, it would mean that if one juror "stood out" on the question of intention the trial could not achieve a result, even though the accused was effectively pleading guilty to manslaughter. It would not mean, to use the language of Gilson, that "an accused who is clearly guilty of one offence or the other is allowed to escape conviction altogether" because the Court would order a retrial. But suppose the same result were to ensue at a second (and perhaps other subsequent) trials. Eventually the authorities would come under pressure to preserve public resources and to call a halt to the prosecution. In that instance the law could be brought into disrepute in the way suggested in Gilson.

71 However, it must be borne in mind that wilful murder is the most serious crime known to the criminal law. The taking of a human life is the ultimate affront to society. There is a great difference between an intentional killing and a killing that arises in other circumstances. The trial process is designed to sort out those differences. Every person, whether he or she is accused of stealing a small bar of chocolate or of killing a fellow citizen is entitled to a fair trial. But the stakes are so much higher when there has been an ultimate affront to the good order and discipline of the community. In this way the public has a particular interest, in a homicide trial, in ensuring that justice is done according to law. This much is recognised in the exclusion of wilful murder from the operation of s 41 of the Juries Act.

72 There is another relevant aspect which affects the rights of accused persons generally. In this case, there is no doubt (based on his own evidence) that the appellant was guilty of, and had to be convicted of, at least manslaughter. Accordingly, and assuming for the moment that the argument put on behalf of the appellant is correct, he may have lost a chance of being acquitted of wilful murder although he did not lose a chance of being acquitted altogether. That will not always be the case. Smith v The King [1932] 35 WALR 1 is an example of a case where, on the evidence, the only verdicts open were wilful murder or a complete acquittal. In such an instance there is a danger that a jury, unable to agree on wilful murder, may bring in a compromise verdict of manslaughter even though such a verdict is not properly open on the evidence. In that instance an accused person would lose a chance of a complete acquittal.

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That there is a need to preserve the opportunity of an accused person to have the jury consider an unqualified acquittal was referred to (in an admittedly different context) in Falconer v The Queen (1991) 171 CLR 30 at 77.

73 Trial Judges always remind juries of the importance of the oath "to bring in a true verdict according to the evidence". Nonetheless, the capacity and power, although not the right, of a jury to bring in a "wrong" verdict is also recognised as an inevitable concomitant of the justice system. This is why a trial Judge cannot refuse to accept a "merciful verdict of manslaughter" (or, in language with which Barwick CJ would have been more comfortable, a verdict where the jury has been "unduly swayed, maybe by feelings of humanity, to feel doubt as to implications of the evidence adverse to the accused") or, in more straightforward language, a compromise verdict .

74 In my opinion the trial Judge was correct in so far as he said: "So, whatever your verdict is on the first charge of wilful murder, it must be unanimous". In other words I take the law to be as described by Kitto J in Gammage, namely, that an acquittal of wilful murder is a condition precedent to the conviction of manslaughter.

The Deliberation of the Jury

75 The conclusion which I have just enunciated does not dispose of the appeal. It is one thing to require a jury to come to their ultimate decisions in a particular order. It is quite another thing to impose on a jury a mandatory order or agenda in which they must approach the task of deliberating.

76 In Ward v The Queen [2000] WASCA 413 the Court was called upon to consider whether, on an indictment for wilful murder where the accused raised the question of insanity, there was, as a matter of law, a particular order in which the several relevant issues had to be considered. The trial Judge, following the decisions in Hawkins v The Queen (1994) 179 CLR 500 and Garrett v The Queen [1999] WASCA 169 , and notwithstanding comments to the contrary in Perkins v The Queen [1983] WAR 184 and Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, directed the jury that they should first consider the issue of insanity (to ascertain whether the accused was criminally responsible) and then, if necessary, turn to the intention with which the accused had acted. The Court held that there was no appealable error in this direction. However, some of the judgments make it clear that there is

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no rule of law that requires a direction that the jury should consider issues in any particular order. It will depend on the circumstances of the case. Wheeler J said, at [130]:

"Provided that all defences open to an accused are the subject of proper directions, and all elements of the offence are canvassed, it has not as I understand it been suggested that it is necessary, as a matter of law, that directions consider particular matters in any particular order."

77 As I read her Honour's comment, it was of general application. Pidgeon J expressed a similar view, at [30] - [31]:

"I have reached a similar conclusion to Wheeler J that so long as a correct direction is given in respect of each issue, the onus and standard of proof is made clear in relation to each issue, and it is made clear to the jury that it is only when they have rejected any possibility of unqualified acquittal that they may turn to issues of insanity, then there is no requirement to consider issues arising in a trial in any particular order.

The jury are required to give a true verdict on 'the several issues joined'. Often the order in which those issues are to be considered by the jury is not suggested by the trial Judge. If the trial Judge does not suggest an order or directs as to a particular order, this Court would not intervene unless a possibility arose that the course taken might not lead to a true verdict."

78 Of course, in Hawkins the High Court did set out the order in which the various issues should be decided. In Ward, Kennedy J at [5], Wallwork J at [56] and Scott J at [103] each recognised the binding effect of Hawkins, as had Ipp J and Wallwork J in Garrett at [6] and [18] respectively. Both Pidgeon J and Wheeler J concurred in the result in Ward that the trial Judge had made no error. Whatever may be gleaned from the judgments concerning their Honours' attitude to the Hawkins' prescription, I think that what they have said about jury functions generally is correct as a matter of basic principle. Hawkins must, I think, be regarded as a special case where the factual situation raises issues both as to intention and criminal responsibility. I will have more to say about this later.

79 The proposition that juries should not be fettered in the way they deliberate is a basic one. It finds voice in the general principle that juries must be free to deliberate without any pressure being brought to bear upon

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them, whether by way of promise, threat or otherwise: R v Watson [1988] 1 QB 690 at 700; Black at 50. In Black the jury had been deliberating for about three hours. The trial Judge brought the jury back and, after reminding them of the oath they had taken at the outset of the trial, directed them to "try again". He said that it might involve a "certain amount of give and take and adjustment" and referred to the inconvenience and expense of a retrial if they could not agree. The Court held that this was a misdirection because it had the tendency to put improper pressure on minority jurors to conform. I acknowledge that Black is different to this case but in my view it sheds some light on the issue now before the Court. I will come back to it in a moment.

80 The proposition now before the Court is that a jury must be directed that they cannot even consider the question of manslaughter until the initial count of wilful murder has been completely and exhaustively dealt with and a unanimous conclusion reached on it. I have difficulty with that proposition for a number of reasons.

81 First, I do not think it is correct as a matter of logic. Consider this example. A person is driving a motor vehicle and comes across a police officer who believes the driver is speeding and who signals for him to stop. The driver runs the police officer down and kills her. The driver is indicted on a charge of wilful murder on the basis that he deliberately ran the police officer down. As a matter of logic the first issue would be whether there had been an unlawful killing and this might well involve questions of negligence and the operation of s 266. It seems to me that in discussing whether there has been an unlawful killing (including issues of negligence) the jury is inevitably embarking on a consideration of the crime of manslaughter.

82 Secondly, if it applies to defer consideration of manslaughter it must likewise prevent an early consideration of murder. It will not usually be appropriate to segment the counts in the way suggested. There are common elements to the crimes of wilful murder, murder and manslaughter. They all involve an unlawful killing. In most cases, what sets the former two apart is the question of intention. But as between murder and wilful murder it would not be possible to say to the jury: "you must not even consider murder until you have disposed of wilful murder". This is because the jury are required to decide what intention the accused had when he or she caused the victim's death. I doubt that a jury could adequately consider whether the accused intended to kill without, at the same time, concerning itself with the question whether that

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same factual scenario amounted to an intention to cause grievous bodily harm.

83 Thirdly, once the jury has embarked on a course of deliberation where, as a matter of law, a number of alternative verdicts are open, there is a danger of imposing pressure on the jury by restricting the way in which they are to approach the task. While we know little about the way in which juries operate it stands to reason that very few juries will be of one mind on all relevant issues from the very outset of their deliberations. There is likely to be differences of opinion and argument before a consensus is reached. The danger is that some jurors may feel fettered in arguing for a particular position or prevented from considering all possibilities that are open on the indictment. To adapt the comment of Deane J in Black, at 56, it may force a minority juror who had been under pressure from the majority into a democratic submission to the views of the majority in order to return a collective verdict.

84 In my view, with one proviso, there is no rule of law or practice that requires a trial Judge to direct a jury that they must consider (as opposed to decide) on various alternative offences that are open on an indictment in any particular order. The trial Judge may do so if he or she thinks that the facts of the case so require and that it will assist the jury to do so. But the power of the jury to approach the task in whatever way they see fit must be respected. If such a direction is given it should be made clear that it is directory or permissive rather than mandatory.

85 The proviso or cautionary note is one that does not arise in this case but to avoid confusion in the future I will mention it. It relates to the situation that arose in Hawkins. As a result of what was said in Ward, where the jury is satisfied that the accused killed the deceased and the case raises issues of insanity as well as intention, a trial Judge must always direct a jury that they should decide the issue of responsibility before determining questions such as whether a person is guilty of wilful murder, murder or manslaughter, which depend on the intent with which the accused may have acted. But this is not inconsistent with the general statement that a jury should not be restricted in choosing the order in which they will consider alternative offences. Hawkins and Ward are, of course, binding but in any event I have no difficulty in accepting the result. If a person is not criminally responsible due to some defect of the mind (permanent or transitory) he or she could not be guilty of any of the alternative offences arising from the indictment.

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86 Whether Hawkins applies generally when criminal responsibility is in issue or only in the case of insanity or automatism may have to be considered further on another occasion. That question does not arise here.

The Directions in this Case

87 If the totality of what the trial Judge said to the jury on the relevant issues had been confined to the directions given before the jury retired, I do not think they could be criticised. In my view the remarks (which I have set out above) could fairly be regarded as being directed to the announcement of the verdicts rather than to the process of deliberation leading to the verdicts.

88 However, the position is complicated by the question that the jury asked during the course of the deliberations. I will repeat it and the answer given by the trial Judge:

"Q. If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to move down to manslaughter?

A. … the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous."

89 The only reasonable inference to be drawn from the first six words of the question is that the jury was then in a state of disagreement on wilful murder. They were asking whether they had to reach a unanimous view on wilful murder before they could "come down to" manslaughter. Given the specificity of the question I think there is a danger the jury would have gained the impression from the answer that they could not even consider manslaughter until they had reached a unanimous verdict on wilful murder. It is difficult to construe the answer as suggesting that the approach which the trial Judge told the jury represented the law was permissive rather than mandatory. In my view it was a misdirection.
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A Miscarriage of Justice?

90 Counsel for the respondent submitted that even if the Court were to come to the view that there had been a misdirection we should not interfere because the Crown case was particularly strong and there had been no miscarriage of justice.

91 Even though the Court comes to the conclusion that the point raised in the appeal is to be decided in favour of the appellant, it may nonetheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred: the proviso to s 689(1). However, in some instances the proviso has no application. In Wilde v The Queen (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ said at 372 - 373:

"… the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" (the phrase of Barwick C.J. in Driscoll v. The Queen, at p 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143, at p 148; Reg. v. Henderson (1966) VR 41, at p 43; Reg. v. Couper (1985) 18 ACrimR 1, at pp 7-8. 11. There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted."

92 In Lord Devlin's work entitled Trial by Jury the author says, at 160 and 164:

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"… trial by jury … gives protection against laws which the ordinary man may regard as harsh and oppressive. I do not mean by that no more than that it is a protection against tyranny. It is that: but it is also an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just.

…

So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives."

93 Despite Chapter LXIVA of the Code the sentiments expressed by Lord Devlin remain valid today. The jury is at the very heart of the criminal justice system, at least in the superior courts. Perhaps this is why something which appears on the surface to be relatively innocuous, namely the denial to an accused of a right to challenge jurors even though his counsel was performing the task, has been held to vitiate the proceedings entirely: Johns v The Queen (1979) 141 CLR 409 at 419.

94 In my view, to require the jury to refrain from considering manslaughter before finalising their deliberations on wilful murder is an inappropriate fetter on the jury function to such an extent that it can fairly be said that the appellant has not had a proper trial.

Summary

95 It may be useful if I were to summarise my views even though some of what I am about to say may not be necessary to dispose of the appeal.

96 1. On an indictment charging an accused person with wilful murder it is always within the power of the jury to return verdicts of murder, manslaughter or not guilty.

97 2. Where the state of the evidence is such that no reasonable jury could properly return any verdict other than, say, wilful murder or not guilty, it is not encumbent on the trial Judge to direct the jury that they may technically bring in a verdict of guilty of murder or manslaughter.

98 3. On the other hand, the jury must not be misled into thinking that one of the lesser verdicts is beyond their power. If they ask a question, or if the accused so requests, the jury must be instructed accordingly.

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99 4. In such a case the trial Judge should give a clear statement as to when the jury might properly return such a verdict and, if appropriate, that they could not properly do so in the circumstances of the case. If a jury were, in the first instance, to pronounce a verdict of manslaughter the trial Judge could request them to reconsider. However, if the jury were to persist in returning a verdict of manslaughter the trial Judge would have no alternative other than to accept it.

100 5. There is no mandatory order in which the jury must consider the various alternative offences that are open on the indictment. A trial Judge may recommend an order if he or she thinks it appropriate (and I suspect that in most homicide cases it will be appropriate) but may not say or suggest that the order is mandatory.

101 6. When it comes to the ultimate verdict a jury must reach a unanimous decision (guilty or not guilty) on the count of wilful murder before it could move to a decision on (as opposed to consideration of) murder and then manslaughter.

Conclusion

102 I would allow the appeal, set aside the conviction and order a retrial.