. Mahar 04] 80 CATCHWORDS Criminal law - appeal against conviction for murder - submission that verdict perverse because on the probabilities injuries causing death not inflicted at time when appellant in victim's presence - submission rejected - challenge to exercise of trial judge's discretion in refusing to discharge jury on three occasions ~- challenge rejected - submissions based on various aspects of conduct of trial also rejected - no question of. principle involved - appeal dismissed. Ante Erich v. The Queen No. FC 45 of 1979 Coram: Blackburn, St.John and Sheppard JJ. Date: 27th March, 1980 Canberra. IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY No. FC 45 of 1979 GENERAL DIVISION JUDGES MAKING ORDER ; DATE OF ORDER WHERE MADE THE COURT ORDERS THAT: On appeal from the Supreme Court of the Australian Capital Territory Between ANTE ERICH Appellant and THE QUEEN Respondent ORDER Blackburn, St.John and Sheppard JJ. 27th March, 1980 Canberra The appeal be dismissed. IN THE FEDERAL COURT OF AUSTRALIA CANBERRA DISTRICT REGISTRY No. FC 45 of 1979 GENERAL DIVISION On appeal from the Supreme Court of the Australian Capital Territory Between ANTE ERICH Appellant and THE QUEEN Respondent CORAM: Blackburn, St.John and Sheppard, JJ. REASONS FOR JUDGMENT 30 JUNE 1980 THE COURT: oe The appellant, Ante Erich, appealed against his conviction and sentence upon a charge of the murder of one Stanislawa Widgas. The date of the appellant's conviction was 14th December, 1979. The trial was a lengthy one, it having commenced on 19th November, 1979. The appeal was heard on 25th, 26th and 27th March, 1980, At the conclusion of the hearing of it the appeal was dismissed. We announced that we would publish our reasons later. what follows are our reasons for dismissing the anneal. There is no question, and there was no issue at the trial or upon the hearing of the appeal, that Mrs. Wwijas was murdered on Monday, 13th March, 1978, at her home, No.133 Limestone Avenue, Braddon, Nor is there any question that the appellant entered Mrs. Wijas' home at about 7.30 a.m, on the morning of that day, bound her to a chair and gagged her. So much appears from the statement he made at the trial and also from statements which he made to the police during the course of their investigations into the murder. Furthe common ground is provided by the fact that the appellant again entered Mrs. Wijas' house at about 9 p.m. on the day of the murder and moved her from the chair to which he had bound her on to a bed in a bedroom shown in a plan as bedroom No.2. At the time that he did so Mrs. Wijas was probably dead. She had been severely beaten, particularly in the area of her neck. She died as the result of multiple fractures of and in the area of her cervical spine, these causing a state of shock from which she did not recover, It is the appellant's case that altnough he assaulted Mrs. Wijas in the way that has been described he did not inflict any injury upon her and, he was not responsible for her death. Ye was unstle to explain how it was that she was injured during the course of the day but his case was con- ducted in such a way as to throw suspicion upon certain other persons wno reside in the neighbourhood of Mrs, wigjas' home. The grounds upon which the appellant appealed were:- + 1. Theat the verdict was against th: evidenc mo v 2. That the verdict was against the weight of the evidence. 3, 4, 5. That the learned trial judge erred in law in failing to accede to three applications for the discharge of the jury made respectively on 28th November, 1979, 30th November, 1979 and 14th December, 1979. 6. That the sentence imposed by the learned trial judge on 21st December, 1979, was too severe. 7. In the events that happened during the course and con- duct of the trial the said trial miscarried. 8. That his Honour's instructions to the jury, having regard to the nature and quality of the medical evidence, were inadequate. All grounds other than ground 6 were vressed. Ground 8 (originally referred to as ground 9) was added by way of amend- ment at the commencement of the hearing of the appeal without objection from counsel for the respondent. During the course of his submissions counsel for the appellant said that an alternative way of putting grounds 1 and 2 was to say that the conviction, by reason of certain matters arising from the evidence shortly to be referred to, was unsafe. In his submission there was no distinction of sub- stance between the second ground and the ground that the conviction ought to be set aside because it was unsere. We do not agree with the equation of the two frounds. The distinction between the two is drawn in the judgment of this Court in Luff v. The Gueen (6th Decemrer, 1979, as yet unreported (pp.8-18, especially at ».18)). It was the Court's conclusion that by reason ot the absence of what we may call criminal appeal legislation in relation to appeals in criminal matters brought from tne Supreme Court of the Australian Capital Territory to this Court that the ground that a conviction is unsafe was not available as a ground of appeal. When the significance of the decision in Duff was pointed out to counsel for the appellant he submitted "formally", to use his own expression, that Duff was wrongly decided. The argument was not developed, There being no development of the argument we would not be prepared to do otherwise than follow a considered decision of another Full Bench of this Court. In the view that we take of the matter, however,our decision in that respect is of no con- sequence because if it were open to this Court to interfere on the ground thet the conviction was unsafe we would be of the view that it ought to stand. We do not consider it to be unsafe any more than we consider it to be against the evidence and the weight of evidence; cf. Hocking v. Bell, 75 C.L.R. 125 at pp.130, 131 and 132. The Crown opened the case aS one where the gury should be satisfied that the appellant inflicted the injuries at some unspecified time on 13th March, 1578. In his closing fet) address, however, the Crown Prosecutor presente: tne oO » 92) Uv ct GQ the jury as one where it was estadlisned th ct ct 6 the a llan vet 2p oD had inflicted the fatal injuries at or about 7.30 a.m. on 13th March at the time he tied Mrs. Wijas to the chair Counsel for tne appellant sought to use the medical evidence called in the case to show that the Crown case as ultimately io put to the jury ought not have been accepted because it was established upon a balance of probabilities that the injuries were not inflicted before 1 p.m., some five or more hours after the appellant's first visit to the house, Accordingly, the jury could not have been satisfied beyond reasonable doubt that the appellant was guilty. The relevant medical evidence was given by a pathologist, Dr, Jankus, who examined the body of the deceased not long after it was discovered on the evening of Tuesday, 14th March, 1978. A reading of the doctor's evidence in chief discloses that he felt great difficulty in expressing any precise view of the time of death let alone the time of infliction of the injuries. in answer to questions asked by the learned trial judge towards the end of the doctor's evidence in chief, he said: "With all the signs, and it becomes more an art than science in estimating death here, there is no evidence of putrefaction so I would say it could be anywhere between 15 hours and possibly two or three days", The period of 18 hours was calculated from the time of his examination at about 1 a.m, on'15th March, and leads back to 7 a.m. on 14th March. Tne period of two days would lead back to 1 a.m. on 13th March and the period of three days to 1 a.m. on Sunday, 12th March. In his cross-examination counsel for the appellant endeavoured to persuade the doctor to say that the time at which death had cccurred was within a very mach narrower time span than was indicated by the doctor's evidence in chief. Counsel questioned Dr. Jankus upon factors which he would take intc account in determining the time of death. These were the extent to which rigor mortis had set in, the fact that there was no decomposition of the body and the temperatures,at the time of Dr. Jankus' examination,of some of the internal organs of the body. Dr. Jankus' evidence that was/there was a degree of rigor mortis in the body but that that was of no assistance in determining the time of death. The doctor said that he could not tell whether it was setting in or receding or whether its onset had been interrupted by reason of movement of the body after it had set in. Tne fact that there was a degree of risor mortis in the body was therefore of no significance in determining tne time of death, A reading of tne entirety of Dr. Jankus' evidence indicates that he did not think that the absence view that death had supervened not 1 hours and no more than 36 nours prior to the commencement of his examination. Thirty-six hours prior to l a.m. on 15th March leads beck to 1 n.m. on 13th Maren, five nours or more after tne morning visit ofthe appellant to M home. The other factor relied upon by the doctor in order to establish the time of death was not reslly hhejpful in wr determining the earliest point of time at which she had helving . died but rather in/to fix the latest point of time at which death may have taken place. The organs, the temperature of which was taken, were at room temperature at the time of the doctor's examination. He said that the test was not helpful after a period of 12 hours from death. In summary what counsel for the appellant souzht to do during the trial and at the hearing of the appeal was to take as the probable limits of the period within which death had occurred, 7 a.m. on 14th March (18 hours before Dr. Jankus' examination) and 1 p.m. on 13th March (36 hours prior to the examination). The submission was based entirely upon the fact that there was no decomposition of the body at the time of Dr. Jankus! examination. Left out of account so far amongst <ne factors to be considered in weighing the appellant's submission are two important matters. ' As counsel for the respondent reminded us, it does not follow that the deceased died immediately the wounds were inflicted. Dr. Jankus! opinion was that she died of shock brought about by the wounds from which she suffered. But there are two time intervals which are unknown. The first is the time between injury and the onset of shock and the second the period during which the deceased was in shock after the condition set in. Tne evidence about these time periods is scant. Indeed, there is no evidence of the time that might be »xpected to elapse between injury and the onset of shock, Tne doctor was auite ie uncertain the onset of the period which would be involved between of shock and death. He could not say now long y g it would have taken the deceased to die once she went into a state of shock. In questions asked of Dr. Jankus by counsel for the appellant at the end of his cross-examination, counsel seems to a degree to have confused the three critical times, Those time shock and examinatio answers: "So dee Injury Let me I thin In all So we s are the time of injury, the time of the onset of the time of death. The climax of the cross- n was reached with the following questions and s that meen that in the case ~ again adoptins ths 36 hour period - in the case of this deceased, she could not nave been injured at a point in time earlier than 36 hours of the time you examined or took the temperature of her organ, that is I am on 15 March?--- As far as being ingured, I cannot answer that aquvestion. producing tne shack ?--- Beginnings of decomposition in a live body are relatively rere, and one can only go on body decomposition after the person is dead and time it to a certain extent, but not froma time of injury. put it this way, again using that piece of evidence hat you gave yesterday: if you take 1 a.m. on is March 1978 and you move back 36 hours, any shock that she sustained would have had to have taken place during those 36 hours? --- Yes. k, there is confidence in my mathematical ability, but I think 36 hours earlier than March 15, l a.m, - lo p.m. on 13 March it means this, does not it, that the shock she suffered must have happened no earlier han l o.m. on Monday, 12 1978? --- I cannot really answer that questicn. ied probability? --- In all probability, possibly, yes. have got two situations now; ner death in ali probvability teok vlace between 1 p . Mie av vip, on Monday, 15 March 15728 ane the cime examined her, is that richt? e-- Well, I am quite sure on what basis we are timing it. Tae only olece of selentitic evidence we do have is the temperature " The test of decomposition it is so variable that whether we take time of death or the time of shock, if we are talking about decomposition it is so variable I cannot give any time at all. I appreciate that but we are using the English climatic conditions which allow for 36 hours and you agreed that in a hotter climate it would be probably less? --- Probably less. But what I want to, using the English climatic condition, I want to get from you as a matter of probability that any shock she suffered at her death could not have happened before 1 p.m. on Monday, 13 March 1978? --- If that is 36 hours, probably yes." With these questions and answers should be read the second question and answer in re-examination which are as follows: "Now, on that basis then if there was any shock caused by any injury are you, in the light of the questions put*and the answers given in the re-examination by my learned friend, are you able to say any particular time that shock would have been sustained? --- No, IT cannot". That answer would appear to be in line with the doctor's answer to the fourth of the questions quoted above, elthough how either of the answers fits in with the doctor's answer to the fifth of those questions we are not sure. We do not think that the doctor's answers to the questions we have mentioned are affected by his answer to the lest of the quoted questions because the question uses the wo "S s, "shock she suffere her death". Reliance was also placed by counsel for the appellant upon answers given by Dr. Jankus te questions asked earlier in his cross-examination. These were: "SO a strong probability ition to this situ: t Cie earlier than arch 72 —- when Ios day, 13 rch 19787 -- noon many Well, that is 277 -- Yes, prokably sho died after that period, "Some time after ]2 a.,n., 12 noon I am sorry, 12 p.m. on Monday, 13 March 1978? That is the strong probability? --- Strong probability but again as I said these are - were at a stage where the estimate of time of death are so inaccurate that it becomes just intelligent guess work indeed from the temperature or any other sign and tne same from appearance of decomposition, I am not putting to you that it is a certainty because - Iam talking about the strong probability, in your view, is that she died no earlier than 12 noon on 13 March 1978, which is, I remind you, 57 hours earlier than the 1 a.m, starting time tnat you chose for the autopsy calculation? --- I am not auite sure, really, basically what Mondays and Tuesdays --- Well, you can assume that the time span between 12 noon on Monday, 13 March 1978 and 1 a.m. on wednesday, 15 March 1978 is 37 hours? --- 37, yes. You can aSsume that is correct? --- 'vell she died somewhere in that period of time. Well no earlier than - - -? ---No earlier than 37 hours after I examined her. No earlier than? --- 37 hours after J] examined her, yes. You would agree with that? --- Before I examined her, yes, sorry." The doctor's evidence nas, of course, to be read as a whole, His answer to the third of the questions just quoted is in line with the answer he gave the learned trial judge to which reference was made et the outset of tnis discussion, Certainly it would appear that the doctor thereafter became more certain i that the time of death was within the period of 36 hours vcrior to his examination, butwedo not think it would be correct, as a result of this seemins divergence in tne doctor's evidence, to trest him as having relinnuisned the position he had twice taken up when he said that the exercise was one involving "more an art than science" and was "gust intelligent guess work", In any event the second series of questions which we have quoted are plainly related to time of deatn slone. 1c. concerned with time of injury nor time of onset of shock. At the time counsel for the apnvellant addressed the jury he did not know that the Crown's case would be restricted to one in which it was alleged that the injuries from which the deceased died were inflicted at or about 7.30 a.m. on 13th March. The Crown did not disclose its hand in that respect until the learned Crown Prosecutor commenced his address, Before this Court counsel for the appellant was able to make far more of the answers he had elicited from Dr. Jankus to the questions above set out. In his submission they demonstrated, there being no other medical evidence on the point, that the verdict must have been perverse because no reasonable jury could have considered the matter and been left without a reasonable doubt that the fatal injuries were inflicted at the 7.30 am. visit. We do not agree with this submission for a number of reasons, Firstly, it omits from consideration the running together of the three critical times, namely, time of injury, time of onset of shock and time of death. In our opinion the doctor at the most was saying that deatn had probably occurred between 1 o.m. on 13th Merch and 7,.CG a.m. on 14¢h March, He was not intending to express any definite opinion in relation to time of injury nor time of onset of shock. Secondly, the use of the word "probable" by counsel in his cross-examination lesds one to ask what it was that the witness understood by that expression. Counsel vas using it in the sense that many lawyers use it, than not. Did the dector underst=nd it in this are many authorities which show that the word is not always used even by lawyers in the sense of nore likely than not. We refer, for example, to what was said by Viscount Dunedin in R. & H. Hall Limited v. w.H. Pim (Junior) & Co, Limited (1928) 33 Com, Cas, 324 at pp.329-330, and by Lord Hodson in C. Czarnikow Limited v. Koufos (1969) 1 A.C. 350 at p.410. We refer also to what was said by Lord Reid in Koufos, particularly at pp.390-391. The judges to whose judgments we have referred were concerned with the question of what meaning should be given to the word "probable" where used in' the judgment of the Court in Hadley v. Baxendale 9 Exch. 341 at p.354,. The phrase in question was, "the probable result of the breach of" the contract. We refer also to what was said by Deane, J. in-Tillmanns Butcheries Pty, Limited v. The Australasian Meat Industry Employees Union (7th December, 1979, unreported pn.8 et seq.) in relation to the meaning of the word "likely" where used in s.45D of the Trade Practices Act 1974. Furthermore, one ot knows from one's experience that many lay witnesses use the word "probable" in the sense of "likely" without meaning "more likely than not", but rather to indicate something which is a distinct or real possibility. It is not without significance in our opinion that in one of the. answers given by Dr. Jankus in the passage from the transcript above quoted, he used the two words together when he said "in all probability, possibly yes", In many situations counsel croas-exsmining @ witness, fe a) ao particularly a medical witness, seek to have the advantage of the witness saying that something is probable, that being in civil cases the standard of proof which applies, if one understands the expression to mean more probable or more likely than not, It is our view that if counsel embark upon such an exercise and wish eventually to use answers that something is probable upon which to found a submission, they are under an obligation to make sure that the witness understands the word "probable" in the sense of more probable or more likely than not. If they de not so define their terms the Court, whether dealing with the matter as/question of fact or law, will be left wondering whether the witness understood the expression in the sense contended for by counsel, No doubt that is why when a judge sums up ina civil case he tells the jury that the stendard of vroof is upon the balance of probabilities and adds that it is for the party bearing the onus of proof to show that what he has to prove is more probable or more likely than not to te the case, In saying what we have, we have not overlooked the fact that in the second series of questions quoted from counsel's cross-exeminatior i than once the expression "strong probability". The juwiges in Koufos (supra) were concerned with decrees of probability. The phrase "strons vrobability" is not amo nnose used St $ by them, but once one understands that the word "probable" may not always mean "more probtab than not"! is there necessarily in a lay mind a real distinction between something which is a streng probability and something which is a serious or distinct possibility or which is "on the cards", some of the phrases used in the Koufos judgments in an endeavour to explain what was meant by the word "probable" where used in the judgment of the Court in Hadley v. Baxendale (supra). Finally, even if the evidence is to be read as counsel for the appellant would have it read, namely, that it indicates that it was, in the doctor's opinion, more probable than not that the injuries were inflicted not earlier than 1 p.m. on 13th March, the fact that the appellant was admittedly in the home of the deceased at 7.30 a.m. on 13th March means that notwithstanding the probabilities he may have inflicted the injuries at that time. The dector was not dealing in any more than probabilities. His possible range of time within which deat ex and certainly the injuries may have occurred was much wider than the period between l p.m. on 13th March and 7 a.m. on 14th larch. The ranse really spanned 54 hours - 1 a.m. on Sundsy, 12th Marca, to 7 a.m. on Tuesday, 14th March. Certainly it allowed for injury and death at 7.30 a.n. on 13th March. For the reasons given we are of opinion that the substratum of the submission made in support of the propos- ition that the verdict was against the evidence and the weight of evidence has itself no proper basis. The matters relied upon by counsel were matters for the gury. No doubt 14, they were earnestly pressed in his submissions to the jury but the verdict indicates that the jury rejected them. It is not for us to substitute our view of the facts (assuming we had a different one) for a view which a jury properly instructed took of them. In this respect we refer to what was said by Jordan, C.J. in R. v. Cable 47 S.R.(N.S.W.) 183. 'what his Honour said was approved by Menzies, J. in Plomp v. The Queen, 110 C.L.R. 234 at 0.245. Jordan, C.J. said (pp.184-5): "Tf I have correctly understood Mr. Windeyer's argument, it is that the approach of the Court to an appeal in a case in wnich tne conviction has been obtained on circumstantial evidence should be quite different from what hes been held to be appropriate wnere the evidence is direct. In the latter type of case, it may guide itself by what was said by the High Court in Ross v. The King ((1$22) 30 .L.R. 246) 'If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the gury and for them alone, and with their decision based on such evidence no Court or Judge has any right or vower to interfere. It is of the highest importance that the grave responsibility which rests on jurors in this respect should be thoroushly understsod and always tiaintained' (30 C.L.R. at pp.255,256), or as it nas been sometimes put, s.6 (of tne Criminal Appeal Act of 1912 (N.S..)) is net intended to substitute for trial by twelve jurymen who have seen and heard the witnesses trial by three Judges who have not," His Honour went on to say that cases wnere the evidence was entirely circumstantial were no different from those in whicn there wes direct evidence implicating the accuced, what he seid toon into account the oroviscns of the Criminal nave no counter- said more, rather than less, apt for present purposes than would be the case if there were criminal appeal legislation in force in relation to appeals brousht from the Supreme Court of the Australian Capital Territory. It is convenient next to deal with the eighth ground of appeal which was the only complaint made by counsel for the appellant of his Honour's summing up. In his submission his Honour's directions to the jury, having regard to the nature and quality of the medical evidence, were inadequate. Wefnave taken a different view of that evidence from that which is involved in counsel's submission. His Honour put the appellant's case fairly and adesuately to tne jury. He told them of whet counsel sought to make of the medical evidence, Their verdict indicates,as we have said, that that view of it was rejected by the jury. This is a very i) different case from Tsylor v. The Gueen, 22 4.L.R. 599 relied upon by counsel for the appellant. That was a case wnich involved the question of whether a jury was bound to accept medical evidence, there being none to the contrary, that an accused person Was not aware that the criminal conduct alleged against him was wrong. There, the whole question was his mental condition or state. The medical evidence is) called both by the Crown and the accused was to the sam effect, namely, that the accused did rot know his conduct was wroneful,. The court held that the tae able to reject unenimeus medic:i evidence unless ~) other evidence which could displace or tnrrow doubt on that evidence. The court was also of the opinion that the medical evidence had not been put to the jury by the trial judge as it should have been, That was because of his Honour's statement to the jury that, while the medical evidence all pointed one way, the jury was not bound to accept it. Here the question is whether the appellant murdered Mrs. Wijas. The medical evidence in relation to time of death and time of infliction of injuries is only one of the pieces of evidence which it was open to the jury to consider. In any event it does not have the absolute significance contended for by counsel, The eighth ground of appeal ought therefore to be rejected. Before proceeding to deal with the remaining grounds it is convenient to mention some other aspects of the evidence and some additional submissions which were a made by counsel for the appellant about it. Evidence was given by three witnesses, Mrs. Roso, Mr. Blago Roso and Mr. Travena of conversations in which the accused had admitted killing the deceased, It was open to the jury to accept the evidence of these witnesses notwithstanding criticisms made by counsel for the appellant of their testimony. It would seem, as counsel for the appellant sub- mitted, that, during the course of the trial or in the committal proceedings which preceded it, both Mr, Blago Roso and Mr. Travena told lies about other matters. But that did not mean that the jury were not entitled to accept part of the evidence given by one cr more of the witnesses. ro) ~) . No application was made for a direction that nis Honour should have told the jury to put the evidence aside, nor could any such application have been suc sful, Mrs. Roso, who lived in the same neighbourhood as the deceased, was also said to have told lies. That sub- mission was based upon the fact that her evidence was in conflict with that of other witnesses wnose testimony was said to be beyond question. Mrs. Roso lived with her husband, Mr. L. Roso, a brotner of Mr. Blago Roso, ina house owned by a Mr. Frank Mielczarek. Mr. L. Roso and Mr. Mielczarek were both called as witnesses for the Crown. Counsel for the apvellant believed during the course of the trial that the Crown would say that tne injuries which caused death were inflicted at some point of time on 13th. March, not necessarily at 7,30 a.m, or tnereatouts Councel therefore set out to crs: witnesses in sn end vour to demonstrate that there were otner persons wno may have inflicted the injuries, Tne accused's case was that did wnet he did in furtherance of a plot to which Mr Mrs. L. Roso were varties. Tne nlot involved tne tying uo of Mrs. wWigdas ty a str er who would nowt be recognisable and a search of the house and garcen by the Rosos for irs, wigjas' money. When this nod been found the Rosos would vretend to find her and it would be thor that she had been robb evidence ceased to nev Crown elected to make causing death, at 7.30 a.m. But there remained in the background of the case the hypothesis that the deceased may have suffered the fatal injuries at the hands of Mr. Roso or perhaps Mr. Mielczarek. That matter was put directly to Mr. Roso who denied it. Participation in the plot alleged by the appellant was put both to Mr. L. Roso and Mrs. Roso,. Both denied it. The matter of partici- pation in the plot or infliction of the fatal wounds was not put directly to Mr. Mielezarek but sufficient was put to him to enable him to make it clear that he did no more than find the "body of the deceased on the evening of Tuesday, 14tn March. There are matters in the evidence of the Rosos and Mr. Mielczarek whicn might lead one to think that they had not told the whole trutna,. There was . strong evidence that during the afternoon of 13th March Mr. L, Roso was seen peering throuvh one of the windows of Mrs. Wijas' house. Mr. Koso denier that he did this. There was evidence that Ir. Mielczarek was seen to cross ) the road and go towards the deceased's nous¢ on 13th March. He denied that he did. Again a tribunal of fact may have thougnt his evidence was unsatisfactory in this respect. Thus it would have been onen to the jury on the evidence to take the view that they had not been told all that the Rosos and Mr. Mielezarek knew. They may even have thought that one or more of these versons was involved in a plot such as was alleyed by the appellant. would, nevertheless, neve been open to them to find on tne ie] at about 6 p.m, evidence, particularly his admission of what he did in the house at 7.50 a.m. and the evidence of the confessions made by the appellant, that he was beyond reasonable doubt guilty of the murder of the deceased. In saying what we heve we do not wish to cast any shadow over the Rosos or Mr. Mielczarek. They were not on trial. They gave evidence in support of a charge of murder against the appellant, not in their own defence. Nothing we have said is intended to cast any shadow over their innocence or their probity as witnesses. All we are concerned to do is to point out a possible way in which the jury may have considered the matter. Finally,we should refer to evidence given by Mrs, Fleeting, who lived next door to the deceased, and her son that they heard a cry from the deceased at about S p.m. on 13th March. It is not necessarily inconsistent with injuries inflicted at 7.30 a.m, that the deceased should still have been alive at 6 p.m, Apart from that consider- ation it was open to the jury to accept or reject the Fleetings' evidence. The jury could clearly have come to the conclusion that their evidence was mistaken. Before proceeding to deal with the remaining grounds of apneal, it is convenient to mention discussion thet occurred during the argument concerning the auestion of whetner it was open to the jury to convict the appellent of the murder of the deceased notwithstanding that they were not sutisfied that tne ry ) atal inguries had teen inflicted {) y) at or about 7.30 a.m. on 13th March. In otner words, were the jury entitled, notwithstanding tne Crown Prosecutor's final address, to convict the appellant upon the basis that the fatal injuries were inflicted at some time on 13th March but not necessarily during the 7.30 a.in. visit. His Honour did not leave the case to the jury in that way. what he did was to put to them the Crown case of the infliction of the fatal injuries during the 7.30 a.m. visit and the appellant's case that the appellant nad not inflicted the injuries then or at any other time, or, putting it at its lowest, that it was not established beyond reasonable doubt that he had. For the reasons given we are of opinion that it was well open to the jury to accept the Crown case as put in the Crows Frosecutor's final address. There is no warrant for the view that the jury accepted some other case. The question which arose for discussion during argument would only have been of relevance if, contrary to the conclusion at which we have arrived, it was not open to the jury to convict the appellant of the murder upon the basis of the infliction of the fatal injuries during the 7.30 a.m. visit. It is therefore of no relevance to express a view upon the question which the discussion in argument posed and we do not, We pass to the remaining grounds of appeal. The next three grouncs concern the failure of the learned trial judge to accede to zpplications made to "+ +: Aaa my, ge the gury. The first of these was made on 28th November, 1979. It was based upon reference in the evidence of Mr.L.Roso to the mafia or to the appellant's mafia, On 27th November, 1979, Mr. Roso was being examined by the Crown rrosecutor, He gave evidence of a conversation between himself and tne appellant which took place not long after the finding of the body. According to his evidence he said,"... if you say anything to anybody I shall kill you, your wife and your child". Mr. Roso was asked whether he said anything in reply. and his answer, which was not responsive, was: "What am I to say if I am told that he will kill me, my wife and my child. I was efraid and I am still afraid to this day that he will kill me or his mafia will kill me". His Honour directed that the answer be struck out. The next day, in the course of his cress-examination, Mr. Roso again used the word "mafia" in an answer. Thereupon counsel spplied for the discharge of the gury. His Honour refused the application and said tnat he woulc sive reasons for his Gecision if required, In the reasons which his Honour sutsequently gave he said that he did not think that the two incidents either singly or in company were so unjustly pregudicial to tne accused as to be grounds for the disenarge of the gury. We see nothing excentionatle in the stutement wnicn his Honour made, His Gecision was a discretionary one. In our Opinion there is e that bis Honour exerciced nis discretion other: tnan in accordance with tne law, nor do we think that his decision was clearly unjust or made JS iS) without teking into account all relevant factors. It is difficult sitting away from the atmosphere of a protracted and hard fought trial,but we incline to the view that we would ourselves have done as his Honour did. The second application to discharge the jury was made on 30th November, 1979, as the result of Mrs. Roso losing control of herself whilst giving evidence, The learned trial judge decided that he would nave to adjourn. His Honour left the Bench and the witness, whilst the jury were in the process of leaving the court room, continued with a tirade of statoments in the Croatian language. It seems likely that the jury must have heard some of what irs. Roso said, but they would not have understood it unless they could speak the Croatian language. The interpreter did not pay attention to the detail of what she said because, his donour having left the bench, she was not required to. She did remember one or two sentences but they are not material. After his Honour returned, a long discussion ensued with counsel in the absence of the jury. His Honour eventually refused the application made to him to discharge the jury and sgéein said that he would give reasons later if they were recuired, His Honour concluded his reasons by sayings: "IT refused to grant the applicetion and said that if it became necessury 1 would, after the conclusion of the trial, supply written reasons for doinzs so. There were four or five counsel and two solicitors at the fur table. There were two interpreters =nd the accused in Court who could understand Croatian, None of tnese ten or so people were able to tell me of anythin: prejudicial to the accused which the witness nad said after the Court ins) Va "rose. It seems to me highly unlikely in these circumstances that tne witness said anything prejudicial to the accused; and almost fanciful to suggest that, if she did, it was heard and understood by a member of the jury who was in the act of leaving the jury box end entering the jury room but was not heard or understood by any of the ten people I have mentioned who were in the court room throughout the entire incident", Again we are of the view that what occurred does not reveal any error in the exercise by his Honour of the discretion vested in him, The third application was made on 14th December, 1979, after the close of the Crown Prosecutor's address to the jury and immediately before his Honour commenced his summing up, Tne application was made because the Crown in its closing speech confined itself, as has been mentioned, to a case of injuries causing death inflicted at or about 7.30 a.m. on 13th March and not at any other time during that day. Counsel sousht to say to nis Honour that if he had realised thet the Crown case was to be restricted in this way he would have conducted his own case somewhat ia differently. But, as his Honour said in his reasons, the Crown case as opened was that the morning visit was, amongst others, an occasion when the appellant mivnt nave inflicted the fatal injuries with the result that the defence was conducted at all times with this issue in mind. This mus be correct, particularly in the .lisht of the fact that such a strenuous attempt was made in the cross-examination of Dr. Jankus to demonstrate that neither the death nor the injuries causing it could have occurred as early as 7.30 avn, or thereabouts on the day in question, In some ways it may th £ be thought that the Crown's decision rendered positive assistance to the appellant. The need for him both to account for his own movements and to implicate others was not nearly so pressing once the Crown case was restricted as it was. Counsel also sought the discharge of the jury by reason of what were said to have been extravagant and emotional statements made by the Crovm Prosecutor in the course of his address. A list of the statements complained of was handed in and has been placed with the papers. Counsel submitted that the case was a very difficult one to conduct because of the prejudicial position in which the appellant was placed. He had conceded that he was guilty of conduct which involved him in having committed a very serious offence and which was, in any event, quite disgraceful. Counsel submitted that in those circumstances it behoved the Crown to present the case as objectively as possible; otherwise the jury might well become inflamed and prejudiced and thus diverted from their duty to assess the evidence calmly and dispassionately in order to deter- mine whether they were satisfied beyond reasonable doubt that the appellant was guilty. Certainly the list discloses that the Crown Frosecutor presented the case to the gury in a flamboyant and colourful way. It also discloses that he made much of evidence which established that the deceased was brutally beaten and that the appellant had admittedly assaulted the deceased on the ND Ww . morning of 13th March, both matters which were not in question. Towards the end of his summing up his Honour Said to the jury ;: "You must not let emotion work against the accused. You should not say, well, there is this poor old lady who has been killed and it is a dreadful thing and therefore we are going to see that justice is done and that somebody is convicted in respect of it. That would be quite a wrong approach and I feel I am almost insulting your intelligence and integrity in even mentioning the possibility that you might be swayed by that sort of emotion. You approach it as an intellectual problem and you decide first of all, as I told you at the start, whether you are satisfied beyond reasonable doubt that there is an act of the accused which caused the death of the deceased. And if you are not satis- fied about that, you do not go any further. If you are satisfied about it, well then, you have got to consider the mental element which I have explained to you." In our opinion his Honour's warning to the jury given in the above terms plainly alerted them to the need to be calm, dispassionate and objective in their deliberstions, Furthermore, although counsel nad, prior to the commencement of the summing up, made an application thet the jury be discharged upon the ground of the vrejudicial nature of the Crown Prosecutor's address, he did not at the conclusion of the summing up seek any direction emenasisineg the need f the jury to aporoach their task calmly and in an otgective manner. No direction that the jury put out of their minds or ignore tne flamboyant language of the Crown Frosecutor was sought, nor was there sourht a direetion that tne gury be careful that their minds were not diverted fram the real issue in the case by excessive reference to matte were not in issue, Having taken the matters we have mentioned into account we reached the conclusion that his Honour made no error in refusing to discharge the jury as a result of what was said by the Crown Prosecutor in his final address, It follows that the grounds of appeal based upon the failure of the learned trial judge to discharge the jury on 28th November, 30th November and 14th December, 1979, were not made out. The remaining ground to be dealt with is ground 7. In support of it counsel sought to rely cumulatively on each of the matters relied upon in support of grounds 1, 2, 3, 4 and- 5 and upen a further matter to which we shall now shortly refer, Towards the close of the Crown case one of the jurors let it be known that he had a personal problem in that he was booked to fly to Germany in order to spend Christmas with his wife and daughter. He was concerned that the trial micnt not conclude in time for him to catch his aircraft and that he would be unable to obtain a booking on a later one. Tnere followed from time to time discussions between the learned trial judge and the juror. He was able to obtain an alternative booking on a later flight and the problem was overcome in that way. Counsel for the appellant, however, said that tne vice of what had havpened wes firstly that the traditionel anonymity of the diry had been lost in a case where there was evidence of threats of violence by the appellant and that there was, in any event, under pressure by reeson of a fear thet important personal arrsngements might not be ablo to be kent. so far as the fo ~] first matter is concerned it is true thet a jury has a degree of anonymity in the decision making process because it is not required to give reasons and it is the jury as a wnole who make tne decision. That is, indeed, one of the great benefits of the jury system to which its protagonists have pointed. But the gury is really not anonymous. Jury panels containing tne names of the potential jurors are furnished to counsel. The accused has a right to challenge, in the Australian Capital Territory, eight jurors without cause. He must do this himself and he is entitled to know the names of the potential jurors before any challenge is made. called. After the jury is empanelled their names are The result of all this is that it would not be very difficult for anybody connected with a trial to find out, if he did not already know, the names of the persons who were the jurors in a given case. So far as pressure on the juror is concerned, the fact was that steps were taken to see that satisfactory arrangements were made. There is no indication that he considered himself to be under pressure as the trial progressed. If the learned trial judge hed nov gone to such len etns to ensure satis- factory arrangements tne position may nave been very different. It was suggested that the juror's personal arrangements in some way put pressure upon the appellant and his counsel and also upon the remaining members of the gury. But counsel very properly joined in the discussion concerning vhe guror's travel arranesements, nis Honour did not sit for a day after the close of the Crown case in order to sive the defence time Ny »3 . to prepare and there is no evidence otherwise that things were done more quickly than would have been the case if the juror's problem had not existed, It was not suggested that the appellant's statement was any the shorter or that he would have given evidence if the juror i had not been going away, or that counsel's address was any shorter as a result of what was occurring. Some criticism was made of the long day which the jury had upon the day of their verdict. The Court sat at 9 a.m., but his Honour's summing up was concluded by 11.15 a.m. The time taken thereafter was taken because of the need the 'jury had to consider the matter. During the evening his Honour called the jury in and asked whether they were not too tired to continue. The foreman's reply was, "Wwe would like to continue. We are along the way and I suggest that perhaps if you were to give us a knock round about 10 o'clock", The jury returned with its verdict soon afterwards, after a retirement of about eleven hours. In our opinion each of the matters relied upon to found the final ground of appeal must be looked at firstly in isolation and then in combination, For reasons already given we do not find any of the matters relied upon in grounds 1 to 5 inclusive to have substance. Nor nN Ne) do we regard them as having substance if all matters are put together, Furthermore, we do not regard the final matter based upon the problem of one of the jurors to have any substance. We were therefore of opinion that the seventh ground of appeal should be rejected. For the reasons given we were of opinion that the appeal should be dismissed.