|' CATCHWORDS APPEAL - Charge of murder - conviction of manslaughter - voluntariness in manslaughter - summing up - adequacy of direction in answer to jury question. CRIMINAL LAW - Inconsistent verdicts - acceptance of and giving effect to jury's verdict of not guilty of murder but guilty of manslaughter SENTENCING ~ Appeal against head sentence of 15 years with non-parole period of 8 years for manslaughter - whether excessive - review of sentencing discretion by appellate court Gammage _v. The Queen (1969) 122 CLR 444 Beavan v. The Queen (1954) 92 CLR 660 R. v. Schneidas (1981) 2 NSWLR 713 The Queen v. Martin (1984) 58 ALJR 217 Bradley v. The Bradley v. The Attorney-General for Northern Ireland (1963) AC R. v. Quinn (Court of Criminal Appeal of NSW, 26 July 1979, unreported ) Ryan _v. The Queen (1966-67) 121 CLR 205 R. v. Sorlie (1925) 25 SR(NSW) 533 Rex v. crott (1933) 50 WN(NSW) 56 Harris v. .The Queen (1954) 90 CLR 652 Kovac v. The Queen (1977) 15 ALR 637 Channon v. R. (1978) 20 ALR 1 R. v. Prindable (1979) 23 ALR 665 R. v.- Tait and Bartley (1979) 24 ALR 473 R. v. Valentini and Garvie (1980) 2 A. Crim. R. 170 R. V. Davey (1980) 2 A. Crim. R. 254 R. ve. J. (Federal Court, 10 November 1982, unreported) waghes~ Hughes and Curtis v. The Queen (Federal Court, 21 July 1983, unreported) R. Williscroft (1975) VR 292 R. v. Pellizzeri (1982) 8 A. Crim. R. 31 R. v. Fitzpatrick (Court of Criminal Appeal, NSW, per Moffit J., 20 December 1979, unreported) ANTHONY GABOR TAJBER Ve THE QUEEN Te me A.C.T. No. G4 of 1986 mo, . _ on, Cr E, wo xe, Coram: Gallop, Neaves and Spender JJ. sr SS Date: 24 December 1986. | ' af Canberra ] . $ s ar fr: DISTRICT REGISTRY f IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G4 of 1986 ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ANTHONY GABOR TAJBER Appellant AND: THE QUEEN Respondent CORAM: Gallop, Neaves and Spender JJ PLACE: Canberra, A.C.T. DATE: 24 December 1986 MINUTE OF ORDER THE COURT ORDERS THAT: (1) The appeal be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. ba ' | . { IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G4 of 1986 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ANTHONY GABOR TAJBER Appellant AND: THE QUEEN Respondent CORAM: Gallop, Neaves and Spender JJ. DATE: 24 December 1986. REASONS FOR JUDGMENT GALLOP J. This is an appeal against conviction and sentence of the appellant by the Supreme Court of the Australian Capital Territory on 24 December 1985. The notice of appeal was filed and served within time (Order 52, rule 15 of the Federal Court Rules), having regard to the operation of Order 3 rule 5 which deals with time running during the fixed vacation. The notice of appeal was amended by supplementary notice which was filed out of time and without leave on 2 July 1986. There being no objection by the Crown, we granted leave on the hearing of the appeal to amend the notice of appeal by filing the supplementary notice pn 2 July 1986. ; The appellant was, on 25 November 1985, arraigned | on an indictment charging him that on 4 July 1985 he did murder Stephen Michael Jones. His wife was jointly charged 2. in the same indictment with the manslaughter of the same victim. The trial took place before Kelly J. and a jury between 25 November 1985 and 6 December 1985 when the jury found the appellant not guilty of murder but guilty of Manslaughter. The appellant's wife was acquitted. The court heard evidence on the question of sentence on 20 December 1985 and on 24 December 1985 sentenced the appellant to imprisonment for 15 years to date from 4 July 1985. A non-parole period of 8 years commencing on 24 December 1985 was specified. The Crown case against the appellant was that the appellant believed that Jones had raped the appellant's wife about a month before the appellant met his wife and, of course, prior to their marriage. For five years the appellant had harboured a desire to pay Jones back for raping the appellant's wife. On the day before the killing the appellant went to Jones* flat but Jones was not home. He arrived home some time later but there was no discussion between them about the appellant's grievance. The appellant decided to leave, pick up his wife, a gun and ammunition and return to Jones' flat later that night. During the evening the appellant consumed a large amount of alcohol and some cannabis. He went home, picked up his wife and went back to the appellant's flat in Oaks Estate, a suburb of Canberra. He took with him a loaded shotgun. He had placed five shells in the gun. The appellant's intention at that time was to beat Jones up in his wife's presence. 3. The appellant banged on the door of Jones' flat. Jones was woken by the loud banging and he let the appellant and his wife into the flat. The appellant ordered Jones to get down on the floor. The appellant was pointing the gun at Jones and kicking him. He ordered Jones to look at his wife and see whether he remembered raping her about five years earlier. Jones denied that it was him. The wife confirmed that he was one of the people who had raped her. Jones went to the door of the flat trying to escape. While he was trying to open the door the appellant shot him the first time. Jones ran out of the flat and as he was running down the driveway the appellant shot him again. While he was lying on the ground the appellant shot him again. On the medical evidence it was the third shot which was the cause of death. The appellant gave evidence on his own behalf and called a psychiatrist to give evidence about his state of mind at the time when he killed the victim. The appellant did not dispute the basic sequence of events proved in the Crown case. The nature of his defence was to raise an issue whether he was acting voluntarily when he killed the victim. His defence was not based on the absence of any of the specific intents required for the commission of murder so as to raise before the jury a possible alternative verdict of manslaughter. It was common ground that the killing of the victim by the appellant was murder or nothing. The trial judge gave directions to the jury in relation to insanity. It is not necessary to consider that 4. aspect of the summing up any further as counsel for the appellant made it perfectly clear that the conduct of the accused's case at the trial had been directed solely to the necessity for the jury to be satisfied beyond reasonable doubt that the appellant had acted voluntarily in discharging the gun and killing the victim. It had been urged that the jury could not be satisfied beyond reasonable doubt and that the appellant was entitled to be acquitted. Nevertheless, the trial judge did give directions to the jury in relation to the crime of manslaughter. It was certainly necessary for the trial judge to give some direction to the jury on the elements of the crime of Manslaughter, as the wife had been charged in the same indictment and issue had been joined before the same jury on that charge. In my view, the jury's task of understanding the law of murder and manslaughter and applying it to the facts which it found against the appellant was rendered more than usually difficult by the trial judge's directions to the jury about manslaughter in the context of the case of Murder against the appellant. It is necessary to examine his Honour's very long summing up in some detail. The summing up commenced on 4 December 1985. After some general observations about the nature of a criminal trial, the burden of proof and the standard of proof, the judge directed the jury about the elements of the crime of murder. He told the jury that they had to be satisfied beyond reasonable doubt that the appellant's 5. unlawful act or acts caused the death of Jones and that that act or those acts were done (a) with intent to kill Jones; (b) with intent to inflict grievous bodily harm on Jones; or (ec) with reckless indifference to the life of Jones. It was unnecessary in the context of the trial to direct the jury in relation to murder by recklessness, but nothing turns on that for the purposes of this appeal as no exception was taken to that course at the trial or on the hearing of the appeal. On the question of the intent involved in the crime of murder his Honour directed the jury in the following terms: "I turn to the question of intent involved in the murder count. The criminal law deals with acts which are done voluntarily. To commit a crime such as murder, the accused must form the intent to do the physical acts which go to make up the crime. In this case there are a number of intents which he has to form and f will tell you about them. If you find that the accused fired the fatal shots or that he intended actually to do the physical acts involved, you are required to be satisfied beyond reasonable doubt that he both willed them and intended them. He must have done them in the exercise of his will - that is voluntarily - and he must have intended to do then. I will try to show you what I mean by taking an extreme example; a man may deliberately shoot another, intending to shoot him and kill him, yet he may be under a genuine hallucination, thinking the slain man to have been an attacking wild beast. His will would not have been to kill a man and it would not have gone with the killing. He would not be guilty of murder, for will and intent did not go together. You have got to have both these things - the operation of his will and the operation of his intent before acts can be said to be done intentionally, and that intent must operate at the moment he does the physical acts in question. That is the critical moment to which I made reference some time ago. But merely to find that he intended and willed the physical acts of pulling the trigger of the loaded shotgun when the shots were fired, is not enough in this case. There is a further mental element involved. He must have 6. , deliberately intended - will and intent again going together - to kill or to do grievous bodily harm to Stephen Jones, or acted with reckless indifference to his life. If the question of reckless indifference to human life comes up, you must be satisfied that he formed the intent to do the physical acts involved in the operation of his will and intent, and that although foreseeing the likelihood, the probability that they would cause the death of Stephen Jones, he nevertheless went ahead with the death dealing acts, exercising his intent and will to do so." I digress to say that in my view the example set out in the above passage is not apposite. It is not an example of absence of will or voluntariness. It may be appropriate as an example of a form of insanity. His Honour continued his directions on the intent necessary to establish the crime of murder as follows: "I will again summarize the necessary intent. I am probably repeating myself perhaps more than is necessary, ladies and gentlemen, but it 1s terribly important particularly in this case that you get this right. He must have intended in the exercise of his will voluntarily to do the act - I am sorry, to do the physical act or acts making up the act of killing, whatever you decide it or them to be, and he must also in the exercise of his will voluntarily have intended either to kill Mr Jones or to cause him grievous bodily harm. If it becomes a question of recklessness, he must have intended in the manner I have just undicated to do the physical acts involved in the killing and have done them recklessly actually in his circumstances foreseeing the probability or likelihood that his actions in shooting would result in the death of Mr Jones. To attain the requisite degree of satisfaction as to intent, you must be satisfied first that Mr Tajber had the capacity to form the intent to fire the shotgun and the special intent to kill, cause grievous bodily harm or to engage in the reckless conduct to which I have referred. Even if you are satisfied beyond reasonable doubt that he had the capacity to form these necessary intents, you still have to go on to be Satisfied that he actually had the intent to do the physical acts, and the intent to kill, cause grievous bodily harm or to act in the appropriately reckless way. 7. Mr Tajber says that he was so affected by a condition of dissociation, hysterical dissociation, as not to have formed the requisite intent. What he is really saying is that his acts were not voluntary and the acts making up the crime of murder must be voluntary. You will appreciate that voluntariness in this case means that the mind of the accused must have been capable of going with the acts to which he performed and that his will and intent with them; that he in fact did what he did deliberately. If being affected by that dissociation to the point where he was incapable of forming the necessary intentions he performed the acts which made up the killing, he cannot be said to have acted voluntarily. Even though you were satisfied beyond reasonable doubt that he was capable of forming those necessary intents, it is still a matter for you to be satisfied beyond reasonable doubt that he was not so affected by the dissociation as not to have the intent to carry out the physical actions involved and also the special intent to kill or to do grievous bodily harm or to act with the necessary degree of recklessness. It is for you to decide whether you are satisfied beyond reasonable doubt that the relevant acts, those making up the physical acts of the killing of Mr Tajber, were voluntary 1n the requisite sense. The way you will do that is by inference from observed facts of the existence of which you are _ satisfied beyond reasonable doubt and from what has been said by the police and from what Mr Tajber himself has said and by what has been said by the witnesses called on his behalf, remembering always that it is for you to be satisfied of essential matters upon which you base your judgment beyond reasonable doubt." In my opinion this passage in the summing up to the jury is wrong, or at least confusing, in regard to voluntariness. When an issue of voluntariness arises in a criminal trial, the question for the jury is not whether the accused had the capacity to form the intent to do the act charged but whether the mind went with the act charged in the sense that the act was a willed or voluntary act. Capacity to form an intent is an entirely different concept. The above passage would, in my opinion, have been very confusing and would not have assisted the jury in understanding the concept of voluntariness. 8. Following those directions his Honour embarked upon directions to the jury about the elements of the crime of manslaughter. His Honour did not focus the jury's attention upon the fact that his directions on manslaughter were irrelevant to the appellant and their consideration of the charge of murder against him. Manslaughter was not one of the alternatives which either the Crown or the appellant had contended as open to the jury. The probable confusion was noted by counsel for the appellant, as appears later. His Honour said: "I put aside for the moment further consideration of the murder as charged and turn to the elements of the crime of manslaughter. A person 1s prima facie guilty of manslaughter if he or she without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful = and dangerous. If you are not familiar with the Latin expression 'prima facie', it means: 'At first sight', or 'On the face of it'. It may be put in another way. Given that a person acting without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous, he or she is in the ordinary way and in the absence of extenuating circumstances which would absolve him from criminal liability, guilty of manslaughter. And hereto we have to have the necessary intent. It is different from the intent required for murder. The only intention required to be proved is the intent to commit the unlawful act. Applying that to the present case, it is unlawful to present or aim a loaded firearm or shot gun at or towards a person without that person's consent for that constitutes an assault, an unlawful act. It is dangerous to fire such a firearm or shot gun 1f 1t subjects a person to at least the risk of some harm resulting therefrom even though not serious harm. It is not necessary to prove that the accused intended any harm to the deceased or that he realised that his act was dangerous or unlawful. The test of the dangerousness 1S objective, not did the accused recognise that it was dangerous but would all sober and reasonable people recognise the danger." On the hearing of the appeal it was conceded by the Crown that it may have seemed strange for his Honour to have embarked upon manslaughter at that stage of his summing * 9. up as he did, but it was submitted that what his Honour was possibly endeavouring to do was to emphasise the intent necessary in the crime of murder by distinguishing murder from manslaughter. To return to the summing up, his Honour then said that the charge of manslaughter against Sharon Tajber (the wife) was in a different situation. He outlined for the jury the way the Crown case was framed and directed them that the only way in which she could be found guilty of manslaughter was if they were satisfied beyond reasonable doubt that she was present for a common unlawful purpose, and that in the course of the carrying out of that purpose, to which she was assenting, Jones died as a result of an unlawful and dangerous act. It is unnecessary to deal further with the summing up in respect of the charge of manslaughter against the wife. The summing up was then suspended until the next day. Before adjourning and apparently in the absence of the jury, the trial judge asked counsel for the appellant and the co-accused whether any further directions were sought at that stage. Counsel for the appellant responded to that question and the following exchange an place: "MR O'CONNOR: No, except with this reservation; it is not of any substance, but your Honour did put the murder elements and then the manslaughter elements in respect of Mr Tajber with no - the jury would not have ever known there was a manslaughter charge. _t wonder if the connection between those HIS HONOUR: I will do that in due course. MR O'CONNOR: - - - descriptions would have been necessary. HIS HONOUR: I will do that more closely in due course, doctor. 10. MR O'CONNOR: I thought so, your Honour, except that it must confuse them to hear a manslaughter not even referred to in the charging; that is the thing. HIS HONOUR: I was just using "he" or "she" throughout; at least I hope I was. MR O'CONNOR: No, you said specifically in that respect - I thought it was directed specifically to the alternative of manslaughter with Mr Tajber in part of your direction. HIS HONOUR: I tried to avoid that; I had better check to make sure that I did not do that. MR O'CONNOR: If you would, your Honour. Perhaps I misheard 1t, but it seemed to me that your Honour was putting a manslaughter outline to them when it has not been necessarily connected with the murder charge. HIS HONOUR: Well, it seems to me that there is a need to show the manslaughter which Mr Tajber would have been guilty of. MR O'CONNOR: Yes, that is quite so, except that you HIS HONOUR: Before one can go on to Mrs Tajber's charge. MR O'CONNOR: I thought there was a possibility that the jury may have been muddied when your Honour went on to a manslaughter - - - HIS HONOUR: All right. Well, I will see 1f I can tidy that up in the morning." When the hearing resumed the next day and still in the absence of the jury, there was a further exchange between counsel for the appellant and the trial judge as follows: MR O'CONNOR: Did your Honour consider that question of the - what struck me listening to your Honour, the failure to put the nexus between murder/manslaughter in respect of Anthony Tajber. HIS HONOUR: I have been thinking about it overnight trying to see any way in which I could put it, doctor, and one of the tests of these things is whether you can think of a way to put it to the jury, and I could not do it. MR O'CONNOR: JI was only concerned that there might be an element of unclearness in it so far as_ the were concerned, how that became relevant, that was -11 Tvs worried about. I 11. HIS HONOUR: Yes. Well, manslaughter generally is relevant to Sharon Tajber's charge, of course. MR O'CONNOR: That is right, your Honour, yes. HIS HONOUR: I will try not to confuse them any further. MR O'CONNOR: I do not say for a minute you have, your Honour. It 1s I you confused, not them. HIS HONOUR: If you are confused, doctor, I take the view that the jury might be." His Honour then resumed his summing up to the jury, referred to his directions about an unlawful and dangerous act as an element of the crime of manslaughter and told the jury that he had not intended to indicate to them that they had to take manslaughter into account in respect of the appellant. He reminded the jury that the appellant denied that in shooting Jones his acts were voluntary and redirected them about the meaning of voluntariness. In my view his Honour's redirections, which were clearer than his earlier directions on the subject, were adequate and correct. No ground of appeal was raised in criticism of those redirections, which is an important matter in the light of the jury's request later for the directions to be repeated. At the very end of his summing up the trial judge invited the jury to raise any matters which they wished to raise before they retired to consider their verdicts. The following exchange took place between his Honour and the Foreman of the jury: THE FOREMAN: Yes, your Honour. If it pleases the - the members of the jury would be grateful if you could go over, once again, the questions addressed by Dr Bartholomew, concerning automation, I think the expression was, and also the questions that your Honour put to him and his answer to those. 12. HIS HONOUR: Yes. I will give you that. I will just check with counsel to make sure we all understand exactly what you are asking, Mr Foreman. MR PURNELL: 459, I think, your Honour. HIS HONOUR: I think that is the end of it, is not it, Mr - no, I am looking for the earlier definition. THE FOREMAN: Your Honour, just to clarify that; the request for clarification on automatism relates rather to your directions - your guidance on the question of automatism rather than the evidence from the doctor. HIS HONOUR: So, you only want those questions I put to Dr Bartholomew, do you? THE FOREMAN: Yes. HIS HONOUR: All right. Thank you. MR O'CONNOR: I thought the Foreman, with respect your Honour, had changed the application to being your Honour's guidance to be recapitulated, but perhaps I misunderstood. HIS HONOUR: Well, what I understand to be asked of me is this that I repeat what I said to you about automatism this morning. Is that right? THE FOREMAN: That is right, your Honour. HIS HONOUR: And secondly, that I repeat to you the questions which I asked of Dr Bartholomew and the answers which he gave. THE FOREMAN: Correct, your Honour. HIS HONOUR: Was there anything else? THE FOREMAN: We have a couple of other questions but not related to these questions. HIS HONOUR: Well, I will deal first with those two matters. Are we quite clear about that gentlemen? MR O'CONNOR: Yes, your Honour. His Honour then repeated the directions, to which I have just referred, and read to the jury the relevant parts of the evidence of Dr Bartholomew, the consultant psychiatrist, who had given evidence on behalf of the accused. His Honour then asked the jury whether there was anything else they wished to raise. The Foreman responded 13. by raising a very significant matter, namely, the jury's right to find a person accused of murder not guilty of murder but guilty of manslaughter. The way in which the Matter was raised and the way in which the trial judge dealt with it is as follows: THE FOREMAN: Thank you, your Honour. Yes, there is a notion - I mean, we would like to try to clarify. Is it a fact or not a fact that if a person accused or charged with murder is found not guilty then he may be found guilty of manslaughter? HIS HONOUR: That verdict is always open. THE FOREMAN: Even though 1t has not been expressly - - HIS HONOUR: That is right. THE FOREMAN: Thank you, your Honour. The last question we had here was is it open to a jury to make recommendations quite apart from the verdict it may arrive at? HIS HONOUR: Yes. THE FOREMAN: Is there any definition of the extent of its competence to make recommendations, your Honour? HIS HONOUR: Not to my knowledge. Gentlemen, would you agree? MR LALOR: I do agree, your Honour. MR PURNELL: I agree also. MR O'CONNOR: I do agree, your Honour. THE FOREMAN: Thank you, your Honour, we have no other questions. HIS HONOUR: Well then you may retire, ladies and gentlemen, but before you do, the verdicts that are possible are these. Guilty of murder. Not guilty of murder. Guilty of manslaughter, you will not be asked about manslaughter unless you specifically indicate you wished to be asked about it. Not guilty on the ground of insanity. And I think that covers it, does it not gentlemen? Yes, would you please retire, ladies and gentlemen." The jury having retired, his Honour then asked counsel for the accused whether they sought any further 14. directions to the jury. Counsel for the appellant declined the invitation. Counsel for the co-accused did seek a further direction, which his Honour gave and the jury retired again. It then appears that during its deliberations the jury asked a question about the crime of Manslaughter and the necessary state of mind in relation to such a crime. The following exchange took place between his Honour and counsel for the accused: "HIS HONOUR: Gentlemen, I have received a question from the jury in these terms. The jury would appreciate your guidance as to precisely what constitutes the crime of manslaughter and is it affected by state of mind? I propose, unless you persuade me to the contrary, to reinstruct them in the way I did yesterday, with the modifications made as a result of what you said to me this morning, Dr O'Connor. MR PURNELL: Your Honour, I do not know whether that question is addressed to Dr O'Connor or my client. MR O'CONNOR: Your Honour has referred to the charge against Mrs Tajber - - - HIS HONOUR: I am not worrying about your client. I am simply saying I am going to make that modification. MR O'CONNOR: Yes; I thank your Honour." His Honour gave the jury further directions. After referring to the question asked by the jury he directed them in the following terms: "I propose to answer that question by defining manslaughter in the way I did yesterday afternoon as modified by the minor change I made to it this morning and that will, I hope, encompass the answers you require, but if it does not, you may consult amongst yourselves and ask me any further questions you wish. A person is prima facie guilty of manslaughter if he or she, without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous. If you are not familiar with the Latin expression prima facie, it means at first sight or on the face of it. If you would prefer that I take it sentence by sentence so that you can 15. take notes, I will do that too. I repeat it, therefore. A person is prima facie guilty of manslaughter if he or she without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous. If you are not familiar with the Latin expression prima facie, it means at first sight or on the face of it. It may be put in another way. Given that a person acting without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous, he or she is in the ordinary way and in the absence of extenuating circumstances which would absolve him or her from criminal liability, guilty of manslaughter. I will repeat that sentence. Given that a person acting without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous, he or she is in the ordinary way and in the absence of extenuating circumstances which would absolve him from criminal liability, guilty of manslaughter and here too we have to have the necessary intent. It is different from the intent required for murder. The only intention required to be proved is the intent to commit the unlawful, dangerous act. And that strictly answers the question you have put to me, ladies and gentlemen. If it is not enough, consult amongst yourselves and please let me know." The foreman intimated that those further directions appeared to suffice and the jury retired again. The next day the jury delivered its verdicts. It is necessary to set out the way in which the jury's verdicts were obtained: "HIS HONOUR: Gentlemen, before the jury is asked to give its verdict, I think I should say that a few Minutes ago a note was sent to me from the jury, although I understood that a verdict had been reached. I did not read the note and returned it unread to the jury. THE ASSOCIATE: Members of the jury, have you agreed upon a verdict? THE FOREMAN: We have. THE ASSOCIATE: Is the accused Anthony Gabor Ta'jber guilty or not guilty of the charge that on the 16. fourth day of July in the year 1985, in the Australian Capital Territory did he murder Stephen Michael Jones? THE FOREMAN: We find Anthony Tajber not guilty of murder. Your Honour, if I understood your direction yesterday correctly, you said that if the jury wished to be asked about a charge of Manslaughter against Anthony Tajber that we should indicate to you. HIS HONOUR: You wish to be asked that? THE FOREMAN: We do, sir. THE ASSOCIATE: Is the accused Anthony Gabor Tajber guilty or not guilty of the charge that he, on the fourth day of July in the year 1985, in the Australian Capital Territory, commit the crime of manslaughter by wilfully killing Stephen Michael Jones? THE FOREMAN: We find Anthony Tajber guilty of manslaughter. We wish to recommend that he undergo personality counselling, your Honour. THE ASSOCIATE: Is that the verdict of you all? THE FOREMAN: It is. THE ASSOCIATE: Is the accused Sharon Maree Tajber guilty or not guilty of the charge that she did on the fourth day of July in the year 1985, in the Australian Capital Territory, commit the crime of Manslaughter by unlawfully killing Stephen Michael Jones. THE FOREMAN: We find Sharon Tajber not guilty. THE ASSOCIATE: Is that the verdict of you all? THE FOREMAN: It is." The contents of the jury's note delivered to his Honour prior to their verdicts remain a mystery. The substance, of the appeal against conviction is that in finding the accused not guilty of murder the jury must not have been satisfied beyond reasonable doubt that the act of killing the!victim was voluntary. As the crime of manslaughter also requires that the act of killing be a voluntary act, the verdict of guilty of manslaughter is 17. inconsistent with the appellant's acquittal of murder and his conviction for manslaughter cannot be allowed to stand. It is clear law that under the common law, which has been reproduced by s.23(2) of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory, on a charge of murder a jury may return a verdict of not guilty of murder but guilty of manslaughter. Section 23(2) where relevant is in the following terms: "(2) Where, on any such trial, it appears that the act or omission causing death does not amount to murder, but does amount to manslaughter, the jury may acquit the accused of murder, and find him guilty of manslaughter, and he shall be liable to punishment accordingly. It is equally clear that, if asked, the judge 1s bound to tell the jury of the alternative verdict open to them (Gammage v. The Queen (1969) 122 CLR 444). The trial judge may decline to accept the jury's verdict and ask them to reconsider it in the light of the conduct of the trial, his charge to the jury and any further direction he thinks 1t desirable to give. Such a course is appropriate where the circumstances of the case are such that the accused person should be found guilty of murder or should be acquitted and yet the jury improperly returns a verdict of manslaughter when there is in fact no material on which such a verdict may properly be returned. But if, on reconsideration, they refuse to alter it, their verdict of not guilty of murder but guilty of manslaughter must be accepted (Gammage v. The Queen, supra, per Barwick CJ at 451, Kitto J. at 453; Beavan v. The Queen (1954) 92 CLR 660). 18. In my respectful view, when the jury asked its question as it was about to retire, the trial judge did not go far enough in telling them merely that they had the right to return a verdict of manslaughter. He should have given a clear statement of the circumstances in which a jury might properly return a verdict of manslaughter, together with an expression of his opinion that this was a case in which, because of its particular facts and circumstances, only a verdict of murder or one of acquittal was possible on any view of those facts and circumstances. His Honour's appreciation of the facts and circumstances of the case was clearly expressed when he came to sentencing the appellant. He said that he construed the jury's verdict to mean that they were satisfied beyond reasonable doubt that the appellant engaged in an unlawful and dangerous act or acts during the execution of which Jones was killed. He stated that, when asked to do so by counsel for the appellant, he had refused to give directions concerning manslaughter on the charge of murder and that he had taken the view that no evidence had been led in the case which would warrant his giving directions on manslaughter. He said that it was a case of murder or nothing subject only to the possibility that the jury might have found the appellant not guilty on the ground of insanity. Those statements by his Honour reveal his clear understanding of the way in which the trial had been conducted. Once the jury had asked about its power to return a verdict of not guilty of murder, but guilty of Manslaughter, the trial judge should have directed the jury that, if they found all the elements of murder established, 19. they had the power to return a verdict of manslaughter, but that they would fail in their duty or be false to their oaths were they to return such a verdict despite their findings and merely upon merciful or compassionate grounds. Indeed, the authorities go so far as to state that in such cases as the present it is proper for the jury to be directed in those or similar terms. In the joint judgment of the High Court in Beavan v. The Queen (Dixon C.J., McTiernan, Webb, Fullagar and Taylor JJ.), supra at 662-3, it is said: "Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence 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 1s 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 1s 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 1s warranted. We think that the law, as we have stated it, is established by Mancini ve Director of Public Prosecutions (1942) A.C. 1 at p.8 per Viscount Simon L.C.; R. ve. Roberts (1942) 1 All E.R. 187; 28 Cr. App. R. 1027 -R. We Gauthier (1943) 29 Cr. App. R. 113; Re | 20. v. Surridge (1942) 42 SR(NSW) 278 at p.281; R. v. Piekutowski (1952) SASR 44; Brown v. The King (19T3) 17 CLR 570 at p.578 per Barton A.C.J.; Reg v. Grimes (1894) 15 L.R.(N.S.W.) 209 at p.221 per Windeyer J. The foregoing is the position alike at common law and under s.23(2) of the Crimes Act 1900-1950 (NSW)." See also R. v. Schneidas (1981) 2 NSWLR 713 at 717). Accordingly, in my view, it would have been proper for the jury to have been told that there was no evidentiary basis upon which they could properly find manslaughter. If, despite such directions, the jury nevertheless returned a verdict of manslaughter, the trial judge could have declined to accept it and encouraged the jury to return a proper verdict. But even if his Honour had taken that course and yet the jury had persisted in its verdict of acquittal of murder but guilty of manslaughter, he would have had to accept it. In Gammage v. The Queen, supra, at p.451, Barwick C.J. said: "They have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict." Returning to the submissions on behalf of the appellant, it is no doubt correct that in order to commit the crime of manslaughter the act causing death must have been a voluntary act; see The Queen v. Martin (1984) 58 ALJR 217 where the High Court (Gibbs C.J., Murphy, Brennan, Deane and Dawson JJ.) said: "There can be no doubt that the Crown is required to prove in manslaughter no less than in other crimes that the actions of the accused upon which it relies were at least voluntary, since manslaughter is not only the unlawful but also the voluntar killing of another without malice (Hale's Pleas o the Crown, Vol. 1, p.466)." 21. It does not follow, however, that, because the jury was not satisfied beyond reasonable doubt of the guilt of the appellant of the crime of murder, it was not satisfied beyond reasonable doubt that the appellant's act or acts causing death was or were done voluntarily. Its verdict may mean, as the Crown contended on the appeal, that it was not satisfied that the appellant had one of the intents necessary to make out the crime of murder but nevertheless had some sort of residuum of intent to cause appreciable harm to the victim. It must be conceded that if that was the jury's assessment of the appellant's state of mind when he killed the victim by discharging the gun three times, which in itself involved the mechanical act of pulling the trigger three times, they were not acting as a reasonable jury. Those physical acts are in the language of the cases "eloquent of intent" (see Bradley v. The Attorney-General for Northern Ireland (1963) AC 386; and R. ve Quinn, Court of Criminal Appeal of New South Wales, 26 July 1979, unreported). Such an assessment of the appellant's state of mind might have been unreasonable in the atmosphere of the trial but it is a possible explanation for the jury's verdict. There was a good deal of evidence about the appellant's consumption of alcohol and marijuana on the night of the killing. The jury might well have found that the accused was so muddled or confused in mind as to be incapable of forming the intent necessary to sustain a charge of murde:. 22. For these reasons I would reject counsel's primary submission about inconsistency. Where, on a charge of murder, the principal issue is voluntariness and the jury return a verdict of not guilty of murder but guilty of Manslaughter, the verdicts are not necessarily inconsistent. In relation to the submission that the trial judge was in error in allowing the jury to consider whether the appellant could be convicted of manslaughter, I have already Mentioned that his Honour embarked upon directions as to manslaughter immediately after he had given the jury directions about the crime of murder charged against the appellant and did not emphasise that those directions were irrelevant to their consideration of the charge of murder against the appellant. But reading the summing up as a whole, I think his Honour eventually made it clear to the jury that his directions about the crime of manslaughter were given in order to emphasise the intents necessary in the crime of murder, whereas those intents are not included in the crime of manslaughter, and were relevant to their consideration of the count of manslaughter against the appellant's co-accused. In relation to this submission 1t is also necessary to remember that it was the jury which asked the question about its power to return a verdict of manslaughter against the appellant. His Honour was obliged to tell them that they had that right, although, as I have already stated, his directions should have gone further. It was also submitted on behalf of the appellant that the trial judge failed to give directions to the jury 23. ' that in relation to the crime of manslaughter they had to be satisfied beyond reasonable doubt that the act relied upon by the prosecution was a voluntary act. In my view it was unnecessary for the trial judge to give that direction in the context of the trial. The appellant raised in the trial an issue as to whether his acts were voluntary in relation to the crime of murder. The appellant did not raise any ussue of voluntariness in relation to the crime of manslaughter. The case was conducted on the basis of the accused having committed the crime of murder or being entitled to an acquittal on the basis that his mind did not go with the acts causing death. The co-accused charged with manslaughter did not raise any issue of voluntariness based upon automatism or hysterical dissociation, as the appellant had done. In the circumstances it was not encumbent upon the trial judge to give directions about voluntariness in manslaughter. A trial judge is after all required to give a jury appropriate directions upon the issues raised. If an issue of voluntariness is not raised, it is irrelevant in the ordinary conduct of a criminal trial to give directions to a jury about such an issue. If an issue such as voluntariness is raised, however, the jury's attention must be specifically drawn to the necessity of deciding beyond all reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused. In Ryan v. The Queen (1966-67) 121 CLR 205 at 217, Barwick C.J. bald: "No doubt care will be taken by the presiding' judge that the available material warrants the raising of this 24. specific issue. In doing so, he will of course have in mind that the question for him is whether upon that material a jury would be entitled to entertain a reasonable doubt as to the voluntary quality of the act attributed to the accused. ... Although a claim of involuntariness is no doubt easily raised, and may involve nice distinctions, the accused, if the material adduced warrants that course, is entitled to have the issue properly put to the jury." It is also relevant to the submission on behalf of the appellant that the trial judge failed to give directions in relation to voluntariness as an element of the crime of manslaughter that counsel for the accused did not apply for any further directions in this respect despite his Honour's invitation. Nor did the Crown Prosecutor. Where no exception is taken to a summing up at the time of its delivery, it 1s a fair inference that counsel listening to it did not at that time detect anything unfair or misleading. As Street C.J. said in R. v. Sorlie (1925) 25 SR(NSW) 533 at 539: "The practice of subjecting a summing up, after the trial is over, to a minute and detail textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not eee assist in the proper administration of justice ..." Street C.J. repeated those observations in Rex v. Croft (1933) 50 WN(NSW) 56. They are entirely apposite} to the present appeal: "Now, some two months after the event, these additional grounds are put before us which are obviously the result of a very careful and detailed scrutiny of the summing up directed to finding, if possible, something on which it might be found vulnerable." The notice of appeal in this matter was filed on 31 January 1986 and was limited to grounds of appeal against sentence. The supplementary notice raising grounds of appeal against conviction was not filed until 2 July 1986 and, as stated earlier, was filed without leave. 25. In my opinion, the appeal against conviction should be dismissed. The grounds of appeal against sentence are that it was manifestly excessive; that the sentencing judge erred in according too much significance to the aspect of general deterrence and too little weight to the subjective circumstances generally of the appellant; that he erred in taking into account the activities of the appellant prior to the shooting of the deceased; and that he erred in finding that at the time of the killing the appellant's state of mind came close to that necessary to support a conviction for murder. The principles upon which a Court, in the exercise of its appellate jurisdiction with respect to a discretionary sentence, will exercise that jurisdiction were expressed in Harris v. The Queen (1954) 90 CLR 652 and have been followed by this Court in Kovac v. The Queen (1977) 15 ALR 637; Channon v. R. (1978) 20 ALR 1; R. v. Prindable (1979) 23 ALR 665; R. v. Tait and Bartley (1979) 24 ALR 473 at 476; R. v. Valentini and Garvie (1980) 2 A. Crim. R. 170; R. v. Davey (1980) 2 A. Crim. R. 254; R. v. Je, unreported decision of the Federal Court delivered 10 November 1982; Hughes and Curtis v. The Queen, unreported decision of the Federal Court delivered 21 July 1983. Manslaughter is a crime which emcompasses a diverse group of situations ranging in their degree of heinousness from cases akin to murder to those where no sanction, or only a symbolic one, is called for. It is notorious that the circumstances of the commission of the crime of manslaughter can attract widely disparate sentences (R. v. Williscroft (1975) VR 292 at 299; R. v. Pellizzeri (1982) 8 A. Crim. R. 31). Where a person is charged with murder and the jury finds him not guilty of murder but guilty of manslaughter and the facts really support murder or nothing, as in the present case, the sentencing judge is called upon to take a view of the criminality which does not amount to the major crime and is fairly within the lesser crime. "Injustice can easily arise unless considerable care is taken to ensure that the sentence is based on the lesser crime and not enhanced by some view of criminality influenced by the circumstance that the facts appear really only to point to the major offence. At times a degree of judicial nimble- mindedness is required to find that the objective facts only carry with them some minor mental element minimising the criminality" (R. v. Fitzpatrick, Court of Criminal Appeal, NSW, per Moffitt P., 20 December 1979, unreported). In my opinion the sentencing judge did not fall into any error in his Interpretation of the jury's verdict and did not fail to take into account any relevant circumstance in arriving at what he considered to be the appropriate sentence. The sentence of 15 years with a non-parole period of 8 years was a proper exercise of the sentencing discretion. I would likewise dismiss the appeal against sentence, 27. ra I certify that this and the twenty sa preceding pases are a true copy of the Reasons for Judgment herein of his Honour Mr, Justice Callop A ciate Dated: 24 Deuwlar- 143s IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 4 of 1986 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : ANTHONY GABOR TAJBER Appellant AND: THE QUEEN Respondent CORAM: Gallop, Neaves and Spender JJ. DATE: 24 December 1986 REASONS FOR JUDGMENT NEAVES J. A summary of the relevant facts and an explanation of the circumstances giving rise to the issues argued on the hearing of this appeal are sufficiently set forth in the judgment of Gallop J. and I need not repeat them. The principal issue raised by the appellant's appeal against his conviction is that the verdict of the jury that he was guilty of the manslaughter of Stephen Michael Jones was so inconsistent with their verdict that he was not guilty of Jones' murder that this Court should intervene to quash the 2. By conviction for manslaughter. Counsel for the appellant sought to persuade the Court that the sole issue at the trial was whether there was proof beyond reasonable doubt that the appellant's act in killing Jones was voluntary, the appellant having led evidence to show that it was attributable to a condition described as hysterical dissociation, and that, consequently, the acquittal on the charge of murder was explicable only on the ground that the jury were not satisfied beyond reasonable doubt that the act of killing was voluntary. It followed in counsel's submission that, as the voluntary killing of another is an essential ingredient of the crime of manslaughter, the necessary inconsistency was established. I agree with the conclusion of the other members of the Court that, by reason of the matters to which they refer, no case has been made out for the intervention of this Court on the ground of inconsistency between the verdict of guilty of manslaughter and the verdict of not guilty of murder. It is not possible, on the material before the Court, to be satisfied that the ground upon which the jury returned their verdict of not guilty of murder was that they were not satisfied beyond reasonable doubt that the act of the appellant causing death was voluntary. The other grounds of appeal against conviction have their foundation in questions asked of the trial judge by the foreman of the jury at the conclusion of the summing up and 3. before the jury retired to consider their verdict and during the course of their deliberations and in the responses which the trial judge made to those questions. The appellant's trial was conducted on the basis that, in the particular circumstances in which the killing of Jones by the appellant took place, only a verdict of murder or one of acquittal was proper on any view of the facts. No matters were advanced, either by the Crown or by the appellant, which required the jury to consider an alternative verdict of Manslaughter and counsel for the appellant did not suggest to the jury the possibility of such a verdict being returned. Directions in relation to the crime of manslaughter were, however, necessarily given to the jury in relation to the charge, being heard at the same time, against the appellant's wife. Counsel for the appellant conceded that, absent the questions asked by the jury, no exception could be taken to the summing up which, considered as a whole, adequately put the issues to the jury for their determination. But, it was submitted, the position radically changed when the jury, at the conclusion of the summing up, asked whether it was open to them to find the appellant not guilty of murder but guilty of manslaughter and when guidance was sought by the jury during their deliberations as to the elements constituting the crime of manslaughter. 4. . It was submitted that, those questions having been asked, the directions which the trial judge had given concerning manslaughter in relation to the charge against the appellant's wife, if applied by the jury in considering the case against the appellant, might have resulted in the jury acting on the basis that it was not necessary, in order to find manslaughter, that they be satisfied beyond reasonable doubt that the act which resulted in Jones' death was a voluntary act. It was also submitted that, the questions having been asked, the trial judge should have given further directions to the jury in relation to the elements of the crime of manslaughter and to the circumstances in which a verdict of Manslaughter could, in the particular circumstances, properly be returned. These submissions were pressed upon the Court on the hearing of the appeal notwithstanding that none of them was raised before the trial judge even though counsel had every opportunity to do so. Of particular relevance to the circumstances that arose before the trial judge is the following passage in the judgment of the High Court in Beavan v. The Oueen (1954) 92 C.L.R. 660 at p.662: "Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence 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 5. 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." See also Gammage v. The Queen (1969) 122 C.L.R. 444 and R. v. Schneidas C1981] 2 N.S.W.L.R. 713. There is no doubt that, the jury having asked the question, the trial judge was obliged to inform them that the alternative verdict of manslaughter was open to them if that was the view they took of the facts. It would have been a misdirection to do otherwise. However, as the case was conducted throughout as one of murder or nothing and as the evidence would not properly support a verdict of manslaughter, it would not have amounted to a misdirection for the trial judge to have explained to the jury the basis on which they might properly return a verdict of not guilty of murder but guilty of manslaughter and to have expressed to them his opinion that, on no view of the evidence which they might reasonably take, were findings of fact open that would support such a verdict. Looking at the matter with hindsight, it may be said that the circumstances were such that that explanation and opinion should have been expressed but his Honour's failure to do so does not, in my opinion, warrant the conclusion that the trial miscarried. Again, it can be said that, when the jury returned the verdict of not 6. | I guilty of murder but guilty of manslaughter, it would have been open to the trial judge to have declined to accept it and to have asked the jury to reconsider it. His Honour was not asked to take that course and I do not think his failure to do so provides any basis for this Court intervening to quash the conviction. It was also submitted that, in answer to the jury's guestion concerning its power to bring in a verdict of manslaughter, a specific direction should have been given that to found such a verdict the jury must be satisfied that the act which resulted in the death was a voluntary act. I am unable to accept this submission. His Honour had, ina careful and detailed summing up, stressed, in the context of the charge of murder, the necessity of the jury being satisfied beyond reasonable doubt that the act which resulted in the death was a voluntary act. I am unable to conclude that the jury were left in any doubt that to return a verdict of either murder or manslaughter they had to he satisfied beyond reasonable doubt of the voluntariness of the appellant's act. Nor am I able to find anything in the summing up which was likely to have led to a misunderstanding on the part of the jury as to the nature of the crime of manslaughter. In so far as the appeal is against the severity of the sentence imposed, I do not wish to add anything to what is said by Gallop J. In my opinion, no error has been demonstrated in this regard. For these reasons, opinion, be dismissed. the appeal should, in my I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate Dated: 24 December 1986 IN_THE FEDERAL COURT OF AUSTRALTA AUSTRALIAN CAPITAL TERRITORY No. ACT G4 of 1986 DISTRICT REGISTRY GENERAL DIVISION www ww SDS ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ANTHONY GABOR TAJBER Appellant AND: THE QUEEN Respondent CORAM: Gallop, Neaves and Spender JJ. PLACE: CANBERRA DATE: Z4 DECEMBER 1986. REASONS FOR JUDGMENT SPENDER J. I have had the benefit of reading in draft form the Reasons for Judgment of Gallop J. and agree that both the appeal against conviction and the appeal against sentence should be dismissed. Insofar as the appeal against sentence is concerned, I agree with the reasons of Gallop J. and there is nothing I wish to add. So far as the appeal against conviction is concerned, I agree generally with the reasons expressed by my brother, Gallop g., but there are some observations in respect of the issue of voluntariness I wish to add. Sir Matthew Hale in his Pleas of the Crown (at Vol.l Chapter XXXVIII, p.466) stated:- "Manslaughter, or simple homocide, is the voluntary killing of another without malice express or implied..." The appeal against conviction is based on the argument that the acquittal on the charge of murder must have been on the basis that the voluntariness of the act or acts of the accused which killed the deceased had not been established beyond reagonable doubt. Since, for a verdict of manslaughter, the act or acts of killing had to be voluntary, it was said that the conviction on manslaughter was inconsistent with the acquittal on murder. The learned trial judge, in the course of his directions to the jury on murder, correctly told the jury that the criminal law deals with acts that are done voluntarily. The question of voluntariness had been the subject of submissions by counsel. The extensive directions by the trial judge on 4 December 1985 were directed to highlighting the existence of one of the specific intents necessary to establish a charge of murder beyond reasonable doubt. The learned trial judge frankly admitted on the morning of 5 December £1985 that the jury may have been confused by some of his directions on the previous day. He said to Dr. O'Connor, who was counsel for the accused below, and on the appeal:- "His Honour: I will try not to confuse them any further. Mr. O'Connor: I do not say for a minute you have, your Honour. It is I you confused, not then. His Honour: If you are confused, doctor, I take the view that the jury might be." The jury returned, and the learned trial judge continued his directions to them. He commenced by telling them that his observations as to manslaughter were quite general, and he referred to his earlier direction concerning manslaughter, where he had in part said:- "The only intention required to be proved is the intent to commit the unlawful act. Applying that to the present case, it is unlawful to present or aim a loaded firearm or shotgun at or towards a person .without that person's consent for that - constitutes an assault, an unlawful act. It is dangerous to fire such a firearm or shotgun if it subjects a person to at least the risk of some harm resulting therefrom even though not serious harn. It is not necessary to prove that the accused intended any harm to the deceased or that he realised that his act wag dangerous or unlawful." Having referred to the last part of that earlier direction, he then told the jury:- "I did not by that intend to indicate to you that you have to take manslaughter into account in respect of the accused, Anthony Tajber. What I should have said to make it perfectly clear was this: it is not necessary to prove that a person charged intended any harm to the deceased or that he realised that his act was dangerous or unlawful." He then continued his directions in.these terms:- He continued by telling the jury that, on this aspect of the case, "Anthony Tajber denies that his acts involved in shooting Jones were voluntary. He raises the matter commonly known as automatism. That means action without conscious volition, conduct of which the doer is not conscious, a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case the action is one in which the mind in its normal functioning does not control. Once the issue has been raised - and I tell you as a matter of law that it has been raised in this case - it is for the Crown to prove beyond reasonable doubt that the accused, Anthony Tajber, did what he did with consciousness that he was doing it, with knowledge that he was doing it. It is for the Crown to prove that there was no temporary lapse into unconsciousness during which he performed the acts of shooting." the issue is:- ",.- whether the fatal act of discharging the firearm was the voluntary or willed act of the accused, with the necessary intents to kill, to do grievous bodily harm, or with the necessary state of mind for recklessness." He later said:- "If the discharge or discharges of the shotgun which caused the death of Jones were not the voluntary or willed act or acts he is not guilty of the crime of murder. You must, therefore, understand what in this context voluntariness is. As I have indicated to you in a general way the accused is not guilty of the crime if the deed or deeds with which would constitute it were not done in the exercise of his will to act. In this case the evidence! shows it is a matter for you whether you accept it that the conduct of the accused which caused. the death of Jones was a somplex of acts all done by him. He took the shotgun from the flat and put it in the car. He took the cartridges from the flat and put them in the car. He loaded the shotgun. He may have - it is a matter for you to decide this - used the shotgun to strike Jones before he was killed. He warned Jones, on his own evidence, as he tried to escape to stop or he would shoot and he used the words, 'Stop. I mean it. I will shoot.' That is according to him. He thereafter fired three shots, the first it would seem as Jones attempted to get out the door safely. The second in the vicinity of the steps and the third when Jones was lying in the driveway. It was one or more of the shots which constituted the fatal wounding and that necessarily involved, as amatter of physical acts, the presentation of the shotgun in sucha way that the shots, when discharged, would strike the body of the deceased, Jones, and the relevant pulling of the trigger." After further lengthy directions, immediately before the jury retired, the jury, at the invitation of the trial judge, asked him:- ",.eethere 1s a notion - I mean, we would like to try to clarify. Is it a fact or not a fact that if a person accused or charged with murder is found not guilty then he may be found guilty of manslaughter? His Honour: That verdict is always open. The Foreman: Even though it has not been expressly His Honour: That is right." There was no amplification of this comment, which was in the nature very much of a throwaway line, nor was there any counsel to the jury that, if they were satisfied of each of the elements of the charge of murder, it was their duty in accordance with their oath to return a verdict of guilty of murder. The jury, after they had retired, asked a question of his Honour. That question was in these terms:- "The jury would appreciate your guidance as to precisely what constitutes the crime of manslaughter and ig it affected by state of mind?" His Honour, in response to that question, told them:- "A person is prima facie guilty of manslaughter if he or she, without having any intention to kill or do grievous bodily harm, kills another by an act Which is both unlawful and dangerous. ... Given that a person acting without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous, he or she is in the ordinary way and in the absence of extenuating circumstances which would absolve him or her from criminal liability, guilty of manslaughter. I will repeat that sentence. Given that a person acting without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous, he or she is in the ordinary way and in the absence of extenuating circumstances which would absolve him from criminal liability guilty of manslaughter and here too we have to have the necessary intent. It is different from the intent required for murder. The only intention required to be proved is the intent to commit the unlawful, dangerous act. And that strictly answers the question you have put to me, ladies and gentlemen." It is with reference to that sequence of directions that the central submission in this appeal falls to be decided. Sir Garfield Barwick C.J. in Gammage v. The Queen (1969) 123 €:L:E; 444, in a nice, Hohfeldian analysis of "the right of a jury to return a wrong verdict", said at p.451:- "They have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict." He later noted:- "Because it is for the jury to be satisfied of the elements of the murder charged and not for the presiding judge, the possibility of a verdict of manslaughter must almost always be present though there may be cases, of which Mraz v. The Queen (1955) 93 C.L.R. 493 is suggested as an example, where there cannot be any reason for such a verdict." In my opinion, that the jury entertained a reasonable doubt that the act or acts of the accused which killed the deceased was or were voluntary, is not the only interpretation of the jury's verdict of acquittal on the charge of murder. While on the facts of the case it might seem bordering on the perverse for a jury to entertain a reasonable doubt as to intention to kill or do grievous bodily harm, in my view, it is not impossible to say that the jury, confronted with the evidence of the accused's state of mind concerning the relationship between the deceased and the accused's wife and what the deceased was alleged to have done to her, and the evidence of the consumption of alcohol and drugs by the accused ina period Which was shortly before the firing of the shots, did not benignly conclude that none of the requisite intentions for murder was made out beyond reasonable doubt. A second possible explanation for the acquittal on the charge of murder is that the jury was satisfied of each of the elements of murder yet, for reasons of misplaced compassion or mercy, chose to return a verdict of guilty of manslaughter. It is not irrelevant to note that conviction on the charge of manslaughter was accompanied by a recommendation:- "We wish to recommend that he undergo personality counselling, your Honour." In my opinion, it does not follow that the verdict of acquittal on the charge of murder and the verdict of conviction on the charge of manslaughter are necessarily inconsistent. In my opinion, then, the appeal against conviction fails. As to the task of sentencing as approached by the learned trial judge, he said:- "By its verdict the jury must be taken to have found necessarily that the killing was not done with intent to murder Jones nor to cause him grievous bodily harm and that it was not done recklessly in the sense that knowing that the conduct in which he was engaged without lawful excuse would probably cause the death of or grievous bodily harm to Jones, he nevertheless persisted with that conduct." And later:- "IT am bound I think to take the jury's verdict to have meant that they were satisfied beyond reasonable doubt that the accused engaged in an unlawful and dangerous act or unlawful and dangerous acts during the execution of which Jones was killed." In this approach, in my view, he was correct and, as earlier indicated, I am in entire agreement with the reasons of my brother Gallop on the appeal against sentence, and in his conclusion that the appeal against sentence should be dismissed. | certify that this and tio % preesding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Spender <[Weder ws Associate Dated 10% Wecemoer \ASG