-20- In those circumstances the question of whether the killing was unlawful arises again, as I have mentioned, and unless it has been negatived beyond reasonable doubt by the Crown it will operate at least to excuse the accused of murder. As paragraph 2 tells you, this consideration only arises if you are satisfied that the Crown has proved beyond reasonable doubt that the accused was not acting to defend himself. So it only arises as an alternative to the matters on page 2. It arises also, notwithstanding~ that it is neither the Crown case, nor the defence case, that the accused did act to effect or assist in the arrest of an offender. The Crown do not assert that the accused was acting in that way. Nor did the accused say to Mr Brennan or Mr Roberts, in either of the statements he made to those gentlemen, that he was acting for that purpose. However, if you believe it arises on the evidence, if you believe that there is a reasonable possibility that he was so acting, then the onus is upon the Crown to prove that he did not act as set out to effect or assist in the arrest of an offender. There is no doubt that the deceased was an offender. He had committed an armed robbery and so that is not a matter that need further concern you. This consideration only arises, however, in circumstances where the accused fired the pistol, as I have said in (ii) of number 2, where the accused fired the pistol :: -21- without intending to cause death or without being reckless, in the sense of foreseeing the probability that death would result. So it only arises in the circumstances where paragraph (ii) e~ of the first paragraph, that is, where the accused A intended to cause grievous bodily harm, or alternatively, the accused fired the shot knowing that grievous bodily harm would probably be caused. So this aspect of unlawful killing is more restricted than the aspect of a consideration of unlawful killing in the circumstances of self-defence. Ladies and gentlemen, as I point out in the memorandum, and you will see that midway down page 3, again it is for the Crown to prove beyond reasonable doubt that the killing was unlawful. And if they fail to prove beyond reasonable doubt that the killing was unlawful in the sense mentioned in the first part of paragraph 2, that will operate at least to excuse the accused of murder. However, the accused could still be guilty of manslaughter, ~m~, as I have said just over halfway down page 3, if you are satisfied beyond reasonable doubt that, firstly, his belief as to the nature or extent of the necessary force was grossly unreasonable, judged by reference to the circumstances as he believed them, and secondly, ~(~ he acted with criminal negligence. :: -22- So, in contra distinction to the first paragraph on page 2 in relation to unlawful killing, there is a possibility, if you are satisfied beyond reasonable doubt of the matters two-thirds of the way down page 3 of the memorandum on the second pagc, that those matters are proved beyond reasonable doubt, in contra distinction to the first matter, there still could be a verdict of manslaughter. So it is a consideration of this matter which gives rise to the first way in which manslaughter might arise in the circumstances of this case. Ladies and gentlemen, the question whether the force used was grossly unreasonable is a matter for you. You have to decide what is grossly unreasonable. That is not a matter of his belief. That is a matter for your judgment. The accused's belief is a relevant consideration as to the circumstances of events of which you have to judge those matters, but it is your assessment of what is grossly unreasonable that matters in deciding whether the force was grossly unreasonable. If you are satisfied beyond reasonable doubt that the accused's belief as to the nature and extent of the necessary force was not grossly ~n~c~ary ~ac nnt~.~]y unreasonable - then he is not guilty of murder or manslaughter. In other words, if you are of the opinion that the accused's belief formed in the circumstances where the accused judged the circumstances to be that the deceased was unlawfully :: -23- appropriating property and fleeing after an armed robbery was not grossly unreasonable, then the accused would not be guilty of manslaughter. But if, on the other hand, you believe that his belief as to the nature or extent of the necessary force was grossly unreasonable, then you still have to decide whether he acted with criminal negligence. So there is still a further stage you must reach before you could find him guilty of manslaughter. Can I explain to you criminal negligence. All of us, in our lives, engage in activity which might cause harm to somebody else, and all of us are under an obligation to exercise reasonable care to avoid causing harm to other people. If you go out on the roadway and you use your motor car in circumstances which could cause harm to other people, you have been guilty of a breach of reasonable care. The law imposes a duty upon you to act in circumstances where you display reasonable care to other people. Generally, of course, negligence is a matter which simply results in civil remedies, an action for damages, if there is negligence which cause damages, but sometimes there are summary penalties, as we call them, fines and the like, for negligence. Some road traffic offences, drive without due care and so on, are offences of negligence for which fines are imposed. :: -24- But that is not what the law means by criminal negligence. There is a point at which a failure to exercise that care which we are all bound to exercise to prevent harm to others is so grave that we can say it goes beyond a mere matter of compensation and a fine in the traffic court. It is really a criminal offence. It is so grave that it deserves to be punished by the sanctions of the criminal law. That is a judgment that a jury has to make. First of all, whether there has been negligence, a failure to exercise that care for the safety of others which we are all bound to exercise; and then, secondly, whether that failure is so serious, so grave, that it should be punished by the criminal law, in this case by a verdict of manslaughter. Can I put it to you this way: criminal negligence arises when the act which caused the death was done by the accused consciously and voluntarily without any intention of causing death or grievous bodily harm, but in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merits criminal punishment. That is an extended definition of what I have written at the bottom of page 3, where I have written 'Criminal negligence means that when an act falls so far below the standard of care which a reasonable person would have exercised, and which'involves such :: -25- a high risk that death or serious serious bodily harm would follow, then that merits criminal punishment. So if you find it proved beyond reasonable doubt that his belief as to the nature or extent of the necessary force was grossly unreasonable, then you have to ask yourself, as I have said on page 3, whether it has been proved beyond reasonable doubt it is criminal negligence in the sense which I have described it. Could I remind you once again that the onus of proof in relation to self-defence is upon'the prosecution, and that means that if you have a reasonable doubt about any of those matters, then that doubt must be resolved in favour of the accused. Let me now turn to manslaughter, which is page 4 of the memorandum. Manslaughter is, as the first line says, the unlawful killing of one person by another in circumstances which do not amount to murder. In the circumstances of this case, as I say, the issue of manslaughter may arise in two ways. The first of these is in circumstance 2, which I have just addressed. That should be, in the circumstance 2 ~situation of unlawful killing~- If you would be good enough to change the words, if you have a pen. :: -26- Can I read to you paragraph 1. 'The first of these is in ~ circumstance 2, situation of unlawful killing'. I have been through that and there is no need for me to repeat it. ~s The second way in which a person is guilty of manslaughter, if, as a result of that person's unlawful and dangerous act, death is caused. And that is the proposition marked number 2, I should say, on page 4 of the memorandum. In this case, that consideration will only arise if the Crown, firstly, has failed to prove any of the states of mind necessary for murder. The states of mind, if I can take you back to the first page, are items 1, 2 and 3. The first appearing, that is, in the first paragraph. That is what I mean by the states of mind. So this aspect of manslaughter can only arise if the Crown has failed to prove beyond reasonable doubt an intention to kill, or intention to cause grievous bodily harm, or has failed to prove that the accused acted knowing that death or grievous bodily harm would probably be caused to the deceased. And it only arises in the second circumstance that the Crown has proved beyond reasonable doubt that the killing was unlawful. So only in the circumstances if it has been proved to your satisfaction, that is beyond reasonable doubt, that the killing was unlawful and the Crown has discharged the burden which lies upon it in that respect. :: -27- Manslaughter by an unlawful and dangerous act can arise in these circumstances. Firstly, if there is an unlawful act, as I have mentioned on page 4, two-thirds of the way down. The Crown would have to show beyond reasonable doubt that the shot which was fired was unlawful, that is an assault. It is unlawful to fire a gun to put a person in fear unless the firing of the gun is in self-defence. So, as I say, as this aspect of manslaughter only arises in circumstances where the Crown have first proved beyond reasonable doubt that the killing was unlawful, you would first have to establish that the firing of the gun was unlawful. When I say you would have to establish, I mean by that the Crown would have to establish to your satisfaction beyond reasonable doubt that the firing of the gun was unlawful. The next question is whether the act was dangerous. It lies upon the Crown to prove not only was the firing of the gun unlawful, but also, as well, that the act was dangerous. And the law says, as I have pointed out, a dangerous act is one which a reasonable person in the accused's position would have realised that the firing of the appreciable risk of serious injury. dangerous act. That is, an act appreciable risk of serious injury. pistol carried with it an That is a definition of a which carries with it an Ladies and gentlemen, if you are then satisfied that the act was both unlawful and dangerous, then the accused is guilty of manslaughter. But, I repeat again, a consideration of this :: -28- aspect of manslaughter only arises in the circumstances I set out on page 4. Firstly, if the Crown has failed to prove any of the states of mind; and, secondly, the Crown has proved beyond reasonable doubt that the killing was unlawful. I just remind you that the memorandum is an aid and is not a substitute for what I have told you. Can I now turn from matters of the law to the facts. Most of the evidence in this trial was not in dispute. Indeed, a good deal of the evidence was not contested, but I will take you through all of the evidence for the purpose of quickly reminding you of it. Two witnesses were called to tell you something about the accused and the deceased before the incident. Ms Vanstone called Andrew Hodge, who lived at Albert Street and knew the deceased. His evidence was that the deceased came to his house from the Riverland on the Saturday, and left at about 6.15 p.m.. The deceased took with him, or there was absent from his house after the deceased left, a replica pistol which Mr Hodge kept at the house, and a knife. Apparently the deceased left the premises without transport and without money. :: -29- Sergeant Warren, ladies and gentlemen, was called and gave evidence in relation to licences held and firearms owned by the accused prior to this incident. His evidence shows that the accused had a licence with endorsements A, B, C and D upon it. He was therefore licensed to possess handguns and pistols and to carry them in a pistol case. The records also show that Sergeant Warren said that~he was a A member of the South Australian Revolver and Pistol Association and a member of the SSAA Para Range Club. He was also permitted to collect firearms as a collector. He was cross-examined as to the method of obtaining a licence and he said that a licence cannot be obtained for a pistol unless one goes through certain stages. Firstly, the person has to be approved by the police. Secondly, the person has to be the holder of a C class licence. And to obtain such a C class licence one has to obtain an authorisation to purchase a pistol from a club which itself had been approved by the police. And thirdly, the club authorisation has to be taken to the police station for the purpose of obtaining a permit. Ladies and gentlemen, Sergeant Warren told you that his licence showed that an application had been made on 11 August at his request, that is the accused's request, that the endorsement on the licence for club purposes be deleted and that the licence reflect that he held the guns for collection purposes only. Sergeant Warren then itemised a number of firearms owned by the accused, probably about Ladies and gentlemen, you must A understand the purpose for which the evidence of Sergeant Warren can be used. The evidence of Sergeant Warren may only be used for the purpose of showing that the accused had a familiarity with guns, with firearms and, in particular, pistols. The evidence may not be used for any other purpose and, in