COPYRIGHT RESERVED IN THE SUPREME COURT CRIMINAL JURISDICTION ADELAIDE BEFORE THE HONOURABLE JUSTICE LANDER No. 53/1996 R V KINGSLEY FOREMAN CHARGE: MURDER PLEA: NOT GUILTY TRANSCRIPT OF PROCEEDINGS MONDAY, 13 MAY 1996 AT 10 A.M. MS A. VANSTONE, WITH HER MS C. MEALOR FOR CROWN MR M. DAVID, WITH HIM MR G. COPPOLA FOR ACCUSED The shorthand notes from which this transcript has been transcribed will, in accordance with standard practice, be destroyed after the expiration of a period of four months from the date of this transcript unless an order is made to the contrary by a judge on the application of a party therefor, or unless a judge otherwise orders. If, therefore, it is desired to obtain an order for the preservation of the"' 35 shorthand notes, an application should be made for the appropriate order within the abovementioned period of four months. If no such application is made, it will be assumed that no such order is sought. MR DAVID: HIS HONOUR: of 29 October? MR DAVID: MR DAVID: There are a number of preliminary matters. There are two witnesses whose statements have been provided to us whose evidence I object to. One is the subject of a rule 9 notice, that is a Mr Edward Donald Warren. The other is not the subject of a notice and I apologise for that but we didn't think he was going to be called, Mr Gregory Kym Justin. My friend has been made well aware of the argument, I don't think there is any objection. That is just over a page long statement. The other one is a statement that goes for six pages of Mr Warren. HIS HONOUR: There are two statements of Mr Warren. You are reffering to the first one? Both. And the statement of Gregory Kym Justin Yes. If I could deal with Mr Warren's two statements first. This case will be very confined as far as the facts are concerned, in the sense that virtually all of the Crown case is not in dispute. I can tell your Monour that from the beginning. There are a series of agreed facts that will be tendered to your Honour that make that out very clearly. By way of background I can tell your Honour that my client killed, by a pistol shot wound, the deceased in this matter. As your Honour could have gathered from a reading of the papers, during the course of a robbery of a service station in Keswick. The defence is one which arises under s.15 of the Criminal Law Consolidation Act. So that within that framework they will be the issues at trial. There will be no dispute about the killing, there will be no dispute about the fact that this person died as a result of that bullet wound, there will be no dispute that this person was robbing a garage, etc. HIS HONOUR: Can you be a bit more precise about the defence under s.157 Is it one or both limbs? MR DAVID: I can't be more specific than that. It is a s.15 defence. HIS HONOUR: MR DAVID: In other words there is no question of him not firing the shot, there is no question of him not killing him, there is no causation question or anything like that. That is the broad framework of how the case will be tried and your Honour will see as it unfolds, there will be very little in dispute, in fact most of it is on television by virtue of a camera which recorded the whole proceedings, and also aided by his statement to the police. The second statement of Edward Donald Warren, without reading it, really sets out the history of my client's involvement with the firearm and then sets out the status of his involvement with the particular firearm that caused the death, that he used on that occasion, what the category of his licence was, what he should or should not have been doing with this particular weapon. The first statement is a very detailed record looking at registers of all the licences he has held and all the guns he has owned. It is my submission that is utterly irrelevant to the issues in this case. It is my submission that how he came by this particular gun, whether it be legal, illegal, bought or stolen, is just not an issue in this case. It is not a matter of the prejudicial effect outweighing the probative. In my submission there is no probative value in that evidence at all and all it can lead to is some sort of conjecture and some sort of decision on the question of whether he should have had this gun or not as to whether, in a sense, he is a person who is pre-occupied with the topic of guns and whether he is one of those people, and this is what the Crown, in my submission, are trying to hint at, whether --- 35 he is so pre-occupied with the matter of guns that he might have behaved in the way that he shouldn't have behaved in on this particular occasion. In other words it is a very crude propensity argument under the guise of his licences and firearms. In my submission that is not what this case is about at all. This is not a planned killing. There is no suggestion by the Crown that this man had this gun for the particular purpose of killing on this particular night. This is a case whereby this person was accidentally in a position where these events took place and the Crown aren't pitching the case in any other way. In my submission, that being so, this should be confined and pitched at that level and to have a deal_Q~-.evidence about his history of owning guns, in my submission is totally irrelevant. HIS MONOUR: There are two issues, aren't there? Firstly, in relation to the first statement, there is, as you say, a history of a number of guns over a number In the second statement there is a history of You put your submissions in relation to both of years. this gun. aspects? MR DAVID: Yes, absolutely irrelevant. I take it even further than that. It is my submission that even If he stole this gun, not only had it in breach of some condition of his licence, that that fact would be irrelevant. The fact is he has got a gun and as far as the issues in this case are concerned, that's all there is to it. If he stole a gun or came by it in breach of some condition that might go to the motive, planning, whatever. They are simply not the issues in this case and they can't be the issues in this case and they can't even possibly be the issues in this case and the Crown doesn't pitch them at that level. In my submission that would get us into a whole area of, in a sense, judgment by the jury as to why this man has a weapon and all the issues that that raises, which would be detrimental to the proper running of this trial. HIS HONOUR: Do I understand your submissions then to be, in relation to both statements as I have mentioned, but on two issues, the first is that the evidence is simply irrelevant but, in the alternative, if not irrelevant, it has no probative value compared with its prejudicial effect? MR DAVID: Yes, well the probative value, and I am waiting to hear from my friend what that would be, but the probative value would be very slight. I talk in ignorance because I am not sure what probative value you could get out of it other than propensity; he is preoccupied with guns therefore he might - I am doing my friend a disservice. In my submission the Warren statements ar~.~. irrelevant and as your Honour puts it, alternatively the probative value would be slight, whatever that might be. I don't think I can take that argument any further. It is not a matter of case law, it is a matter of logic. The second statement is the matter of Gregory Kym Does your Honour want me to read that out to Justin. you? HIS HONOI/R: MR DAVID: No, I have read all the statements. In my submission what happened 18 months ago, about him having a gun, him saying he was a good shot and showing a general interest in that gun, is also irrelevant. The fact that he was capable of handling the weapon, in my submission is just another form of getting in the back door that, as I say, crude type of Propensity evidence. If it is relevant as to how well he shot, I may have no objections to this witness or someone coming along and saying that Mr Foreman said he was a good shot, full stop, but this prospective evidence of how 18 months ago he is showing a gun around and he is very concerned about his weapon, in my submission takes the Crown case no further. I have nothing further to add. MS VANSTONE: In my submission there are two heads of relevance in relation to all this evidence. The first .... is a matter of mechanics. The ownership of a large number of firearms, including pistols, over a long period of time, which is what Mr Warren obviously establishes, can demonstrate proficiency in the use of firearms; it can demonstrate the ability to prepare a weapon for fire quickly; it can demonstrate the ability to aim correctly and effectively; it can demonstrate the ability to hit a target. All those questions of course go to this question to the jury: Did this bullet go where it was intended and in the preparation what was in the man's mind. It can go also to the ability to compensate for or transcend any difficulties associated with the use of this particular firearm. For instance, it is._~.very small firearm with a short barrel and it might be difficult for an amateur to achieve any degree of accuracy with it. Someone who has used a range of weapons, including long weapons, short weapons, other hand~uns, might know exactly how to compensate for any difficulties or shortcomings in the weapon itself. HIS MONOUR: Are there any suggestions that there are any shortcomings with the weapon? MS VANSTONE: Yes, I understand there will be some evidence as to its being fairly inaccurate when fired over a short distance, I am am not sure what. It is certainly not seen as one of those weapons that is easy to hit a target with. So it is those mechanical matters that I point to in the first instance. Of course there is nothing contrary to the law in owning all these firearms, they are properly licenced and so forth. It is a little like this, in my submission, in a driving case where the behaviour of a motor vehicle was in issue it might be very relevant to show that on the one hand the driver was a person of 14 years, who didn't have any experience, or it might be relevant to show that the driver was Peter Brock. Obviously the experience of the driver brought to bear on a particular situation might be highly relevant to the jury's evaluation of what happened in the use of that vehicle or firearm as we have here, and similarly the statement to Justin that the accused was a good shot couldn't have a more clear relevance in the context of this case, where the accused basically says he didn't have time to aim and yet hit the offender, who the Crown says was fleeing, in the upper body. Of course that statement was made in the context of producing a handgun. It is not as if he had a rifle there, was showing Justin a rifle or shotgun or something, he is saying it in the context of some sort of handgun. HIS MONOUR: Is there evidence to establish that he MS VANSTONE: said it or in fact that he has got the proficiency he claims? It is established he says it. Then it is a question for the jury whether they accept that he was calling telling the truth. One can imagine that against the background of the ownership of all these firearms and of his admitted ownership in a gun club, that they may infer from all of that evidence that he was a good shot. It is just part of the picture, in my submission. The other head of relevance, in my submission, is that of the accused's state of mind and his attitude to the use of firearms. Obviously the first matter has got Nothing to do with proficiency at all, it goes straight to objective evidence about how good this man is with a weapon. The second area, in my submission, goes to attitude. The jury may infer that a profound interest in firearms might go hand in hand with an overeagerness to use them or a preparedness to exploit a situation and introduce a weapon into it. It might show a particular relish for target shooting. In my submission that is not propensity, that is an attitude to the use of firearms and it is clearly for the jury to look at it in the context of all the other evidence in the case and it may help them with some of the issues. Then if we move to the more precise issue that faces--- 35 them in this case. We know, and your Honour will know when the video is shown, and I don't think it is in dispute, that the accused is preparing his weapon to fire even before he knows that the robber has this replica pistol. The jury of course will be asking the question: what was he preparing for. Then we know that the robber turns and heads for the door. This accused claimed in his interview that during that route to the door the robber turned around and levelled the replica pistol at him. CONTINUED And, of course, there is other evidence that bears on it. Dr James, for example, and the video itself, and the set up of the service station. But, in assessing the likelihood of that threat having been made by the robber, surely the jury are entitled to know that this man has a profound interest in firearms? Because the jury will be entitled to say to themselves here we have a situation where the robber's carrying a gun, but We have the accused arming his pistol. HIS HONOUR: Does the video not show the deceased carrying the gun? MS VANSTONE: Not at the time that he is at the counter. As he is fleeing and coming closer to the video, one I think can discern it in his right hand, but certainly the evidence of the victim, Mrs Rowe, is she didn't see the gun. And, indeed, the accused says the same thing. He says he first saw it when it was raised and pointed in his direction. So, in assessing the likelihood that this fleeing robber would turn round and point his toy pistol at the accused, the jury are, in my submission, entitled to know that we are dealing with a man with this interest or fascination, or whatever it is properly described as, in firearms. That bears on the likelihood that this event happened as he said. HIS HONOUR: I don't follow that. I can't see how his familiarity with guns is relevant to assessing the likelihood that the deceased did something. MS VANSTONE: It is an extraordinary coincidence if this robber, having got his money and heading for the door, turns around and happens to point his gun at a person who happens to have a loaded weapon in his hand. What incredibly bad luck. HIS HONOUR: But it is incredibly bad luck that the robber had a knife and incredibly bad luck that he had a replica. Those can't be relevant to his familiarity with guns. MS VANSTONE: The only person who says that the robber pointed this pistol is the accused. That assertion is coming from a man who has just shot him dead, on the one hand, but who also was arming his pistol at an early time and who has this interest, this profound interest in weapons. The jury might say he has made up his mind what he is doing and he is just making it up when he says the robber turned around and threatened him. And his interest in firearms can bear on that question. HIS HONOUR: I am having difficulty with tl~t. MS VANSTONE: They might say he is turning this occasion of a robbery taking place before his eyes into an occasion for a bit of target practice. They are entitled to say that. It is a relevant factor, in my submission, to that. There is another limb of this argument, too. If the jury reject that there was any threat by the robber, they still would have to go on to consider the question of apprehension of a fleeing offender. On that question, an interest, a profound interest in firearms, a person who is walking around in the streets with a pistol and in his pocket, that might go hand in hand with a belief that armed robbers are fair game. And that would bear on the question of his genuine belief as to force that was necessary and whether it was wholly unreasonable, in the circumstances. So this person may not have the same sort of attitude to that question as someone who has no interest in firearms at all. In my submission, these are propensity questions. It is not as if we are suggesting that this accused just goes around shooting people or likes to go around shooting people, but it has a particular relevance in relation to the very issues at stake here. HIS HONOUR: Your first ground is that he has the capacity to shoot people, isn't it, by reason of his familiarity with guns? MS VANSTONE: More than capacity, but yes. HIS HONOUR: But alternative to that you are really putting to me that, because of his familiarity with guns, can one infer the reliability of his account of the deceased's movement. MS VANSTONE: Yes, it goes to, I suppose, a readiness to resort to weapons, which is far more pronounced than in the average person who has no such familiarity. HIS HONOUR: It is getting very close to propensity, isn't it, that he is more likely to resort to weapons than someone else? I am sure that actually arises out of the fact that he has got a weapon, but to prove that he has got a lot of weapons might establish that he has a propensity to fire guns more readily than anyone else. MS VANSTONE: much. HIS HONOUR: MS VANSTONE: I want, for the first question of the mechanical matters, that he has this huge expertise with such a range of weapons, that he won't have any trouble with this one. But it does also show the breadth of his interest in guns and that is relevant on the attitude question, as well. It is not as if we say he is generally breaking the law, that he is a man likely to shoot at random. It is his mind being brought to bear on the particular questions that face him in this case and whether, because of that interest or hobby or whatever you call it, he is more likely to react in a certain way. HIS HONOUR: But that is propensity, isn't it, or am I wrong about that, that he is more likely to do something by reason of some other fact? MS VANSTONE: In my submission, it falls short of that. It is certainly not that we are saying this is a man who has previously shot an armed robber dead and then claimed it was self-defence. I accept that would be the propensity; or a man who indulges in sieges, or any other unlawful conduct, using firearms. We are not saying that, at all. It is this more narrow question. In my submission, it does fall short of propensity. It is just an attitude of mind. It is a bit like in Von Einem's case; the Crown were allowed to lead evidence he was homosexual to demonstrate his proclivities. This case is not as strong as that, in a sense, because we are not necessarily pointing to proclivities which might be a first step to unlawful conduct. Perhaps we are. Perhaps it is similar. It is that sort of chain of reasoning and certainly the Full Court in Von..Einem didn't consider that to be other than relevant and admissible evidence. Actually put it into the propensity basket. Aren't you asking for this process of deduction; that, by reason of this man's familiarity with guns over a number of years and his having obtained guns, he is a person who is more likely to use them unlawfully than you or I would, because we don't have that familiarity? Not in a situation of going out and, without any motivation, using them. But more ready to pull a gun in response to some sort of threatening situation like this, I accept that. That is still unlawful, on your case. On our case, yes. Is the deduction right; that you are saying, because of his familiarity with guns, he is more likely to use them unlawfully than any other person? MS VANSTONE: Yes, of course, he has got it in his pocket, we know that. So that takes us a long way down that road, anyway. HIS HONOUR: MS VANSTONE: HIS HONOUR: top of that. MS VANSTONE: HIS HONOUR: That is a fact you can otherwise prove. Yes. But these are facts you want to prove on .... Yes. That he has other guns. MS VANSTONE: I am saying it is not really necessary, we are a long way down that path anyway and I accept that. Just say your Honour allowed it in as propensity evidence and your Honour would have to give a warning to the jury about how to use it. And, when you think about how that warning might be framed, it tends to show, I think, that this evidence is plainly relevant evidence for them to consider. Your Honour would have to tell them that they can't reason, by the ownership of all these guns, that he is a person who is likely._~o.turn this particular situation into one where he is going to shoot an offender. And the fact is, as a matter of common sense, they should know that this is not just a person who happens to be in a particular place and there happens to be a gun there and there is a threat to him and he is able to resort to the use of that gun. This is a man who is walking around with a gun in his pocket and ammunition. HIS MONOUR: But that is otherwise proven, isn't it? That is simple enough to understand. You can prove that. MS VANSTONE: Yes, but that is in the context of this ownership of all these guns. He can say, of course, that he just went in to show this weapon to Margaret Rowe. He did say that to police._ And that is something the jury would evaluate. But, when you know that he has previously taken in some other weapon and shown that to some other console operator and, when you know that he has got a range of weapons at home, then that really puts into context what the Crown says is his too-ready resort to the use of the weapon, on that occasion. As to the evidence as to the classes of licence that he has, my understanding is - and I haven't spoken to Mr Warren, I must admit - I understand that this would be, .... this carrying around of this pistol to show Ms Rowe, if that is what his purpose was, would be in contravention of his licence. And the Crown says that is highly relevant, again, to showing his attitude to compliance with those regulations. He is a person who not only has these weapons, but he is prepared to handle them in a way that is outside the terms of his possession. And, in my submission, if the jury think that he has just got this one weapon at home and brought it in, just for that purpose, brought in the ammunition so he could show her what it looked like, if that is all they know, then that doesn't set the context of what occurred that evening in any sense, at all. HIS HONOUR: I don't follow that, at all MS VANSTONE: If your Honour excluded all that evidence, all we know is he has got a pistol in his pocket, it is a toy looking pistol, this Beretta, and some ammunition. He says he had it in his pocket to show Mrs Rowe. Completely or fairly well innocent. Perhaps unusual, but certainly it is not the picture of a man who more than once carries around those handguns to show people and has a whole collection at home and who has been collecting them over a number of years. It is a different picture and the jury should have the whole picture, with appropriate directions as to the use of that material, if we come to that. HIS HONOUR: What would the direction be for the use of the material in the circumstances you put forward? MS VANSTONE: Firstly, of course, the mechanical matters. I mean, that seems clear and I won't dwell on that. That is my high point, I suppose. It would be directed to the particular issues in the case as to whether it is explicable that this man was really threatened by the robber after a time when he was already arming himself and whether the interest in firearms could bear on that question. And, secondly, if they were considering the question of whether he was shooting a fleeing offender, whether his particular interest in firearms, his knowledge of them, collection of them, might demonstrate an attitude of mind whereby fleeing offenders were fair game. But then your Honour would have to warn the jury not to place too much emphasis on that, I suppose, but it would be a limited warning, in a sense. I mean, it is very much a jury question as to whether these matters, or how they are going to use them. And it would be unwise to limit them too much, in that sense, bearing in mind that, as I have mentioned, there is nothing illegal in this conduct. Was there anything illegal about carrying the weapon? I think it was in contraventip~.of that class of the licence, yes. But, in terms of the ones at home, I mean, clearly there is nothing illegal there. So, it is not as if your Honour is warning them against previous bad conduct, or the usual propensity direction. It is just not in the same class as that. It is just really a warning not to elevate the evidence too much, I suppose, but there is no reason to think the jury would do that. I have tried to find some cases on this, but it is not very easy to find anything particularly useful. What would the general principles be then that I should understand? Just a question of straight relevance and, in my submission, it is not propensity evidence, as we usually use that term. It is not similar actions, or anything of that sort, so there is no particular test that the Crown has to meet. It is just the same, the usual test of relevance outweighing prejudicial effect. And really it is hard to see that the prejudicial effect is over and above the probative value, in any event. If your Honour thinks the evidence is relevant, then really it is hard to see how it could be misused. Would you argue that, if I thought it inappropriate to lead the evidence in relation to Mr .... Warren's first statement, that you still ought to be able to lead the evidence in relation to this particular gun? MS VANSTONE: HIS HONOUR: distinction? MS VANSTONE: As to when he got it and so forth? Yes, or is there no point in Yes, I would still want that, certainly. But, as much as possible, I would like to demonstrate to the jury this proficiency matter, because of the mechanics of what actually took place. Because of the ability of the accused to hit the deceased from the distance he fired and in the circumstances? Yes, bearing in mind that he.~d he didn't even aim. And bearing in mind that there is some suggestion of this weapon not being particularly accurate. I can say to your Honour that there are some tests that were conducted - your Honour probably read about them - as to the accuracy. There were these target boards which show where Mr De Laine's attempts landed. And certainly over that 5, 6 metres distance, he was able to be very accurate. But that is, of course, in ideal conditions. But it is a very short barrelled weapon and there are shortcomings of it. But certainly, yes, the whole range of the firearms is essential to understand that this man is able to quickly load his weapon, which involves, he said, putting the magazine in and cocking it and is able to take fire, which he does in a very efficient and professional looking manner, as you can see on the video. As far as the mechanical defence, or the reason for that, in my submission, it mystifies me what the Crown are trying to prove. What more do they want? This man cocks this weapon, aims it, fires it and kills somebody. And, in my submission, the fact that he might have owned 30 other weapons and been a member of a gun club for years doesn't weigh on this question, at all. The defence, in this case, is that he fired at this man, in these very sudden circumstances, because he was in fear. Why he brought the gun there, what breach of licence he has made is, in my submission, totally immaterial. And, indeed, it is quite immaterial as to how proficient he might be if, indeed, owning 30 other weapons is evidence of the fact that he is proficient. It is all on film, it speaks for itself. He loads it, he cocks it, he aims it and he kills somebody. Really the Crown are trying to get this in for the second reason and the second reason is propensity. Going back to absolute logical definition grade 1 evidence, propensity is where a person has propensity to 10 do a criminal act, because of his character....And that is what this evidence is. This person is showing a character of being obsessed with guns, obsessesed with gun clubs. Therefore, in a particular situation, he has a propensity to do something criminal, which another person might not do. That is the way they want to use that evidence. And, in my submission, that would be quite inadmissible. HIS HONOUR: Mr David, I suppose that it would be relevant to establish that your client had an ability to hit this deceased, if he fired a gun, that someone else might not have, in considering a defence under s.157 MR DAVID: Unless the Crown want to prove more, my submission would be, no. It is like saying a person has had a car for 30 years, therefore, they are a proficient driver. HIS HONOUR: There are a number of matters to be considered under s.15. And one is whether he is acting in defence of a person, or whether he is acting in defence of property, or whether he is trying to apprehend someone fleeing after committing the crime. And, in considering all of those different matters, the distinction is drawn as to intention in relation to property and person, and also the question of criminal negligence is raised. Doesn't all that give rise to conisiderations of his ability to use a weapon? MR DAVID: Yes. HIS HONOUR: And wouldn't evidence of his familiarity with a number of weapons over a number of years demonstrate his ability to use it? MR DAVID: No. Why not? MR DAVID: His ability to use this weapon, on this occasion, in my submission, is another matter. When your Honour says ability to use a weapon, there is no doubt he has got the ability to use this weapon. He has got the ability to cock it, load it, aim it and fire it. If the Crown want to go much further and..~all evidence that this man is crack shot and he has passed certain exams, etc., that might be another matter. That hasn't arisen, at this stage. And, if my learned friend wants to allude to evidence of that type, we are looking at a blanket bombing of all the guns he has owned and all the gun clubs he has belonged to, over the years, and that doesn't take us any further, at all. HIS HONOUR: I am looking at s.15 (1)(b); if your client's defence is that he was: ' ... acting to protect property from ... is caused uses force', might it not go to the question as to whether or not his intention was to cause death, or as to whether death was caused by reason of his ability to use the gun? MR DAVID: Yes, if he comes up with a story that 'I am lousy shot and I intended to miss, but I happened to hit him', that might be one thing, but that is not the issue, in this case. HIS HONOUR: But I think counsel are a little bit apart on that, aren't they? You said that your client intended to shoot at and shoot the deceased. And Ms Vanstone suspects that that is not quite what the defence case is. MR DAVID: What he said to the police, yes. HIS HONOUR: She suspects that perhaps he might say .... that it was an unfortunate coincidence that he struck, or the bullet struck this person. MR DAVID: That he didn't intend to shoot him. KC 1B Yes, if he says that, that might be another matter. HIS HONOUR: It is a bit late in the day, though. All I am putting to you is the evidence could go to the matters in s.15 (1)(b). In my submission, no more than for the reason that we have no evidence of this man's propensity as a shot of this gun. No, not propensity for a shot, but his familiarity with guns. That was badly phrased. There is no evidence to say that this person is a crack shet-with this weapon. No, but I suppose you might infer from the fact that a person who was familiar with 30 guns is more likely to be a better shot than you or I, who would have no familiarity with any guns. Yes, but whether that gets him into the category of being a very good shot, or not. No, that is for the jury. I think your Honour would want to hear some evidence to say that, before letting in that type of evidence, when it has got that prejudical aspect to it. A witness might come along and say 'That is nonsense. You can have as many guns as you like and you may not be a good shot on that particular basis.' If your Honour let's it in, on that basis, we may want to call evidence on that. HIS HONOUR: That is the way I am thinking, at the moment. It not only includes the ability to fire the gun, but also the ability to load it quickly. That is shown on the film. He did load it quickly on this occasion and he loaded it in a certain time. What more does everyone want? He could have done it quicker on a better day? We don't need the evidence of 20 other weapons to prove that. proved. That is .... I would go further and say that he is probably a very good shot. He shot at him and he killed him. HIS HONOUR: That is where the submissions seem to part company. But we would want to call evidence, if MR DAVID: your Honour will let all this in. 20 guns over a long period of time does not show that, in the use of this particular gun, he was necessarily a crack shot. That is what it has come down to now. That is not what the Crown wanted to do it for originally, but under your Honour's; interrogation, that is what it has come down to. HIS HONOUR: That was Ms Vanstone's first.p~ition; she wanted to show the relevance was the proficiency of this weapon. Her alternative is in relation to attitude, which I have some difficulty with. MR DAVID: If that is the case, my view would be that the Crown should call evidence to make that an arguable proposition because, at the moment, there is a yawning gap to say that, because you own, or have been a member of a gun club for a long period of time - you might be half blind - you just don't know. I have been a member of a cricket club for a number of years and I have never played cricket for Australia. So I think there should be far more intermediate evidence to bring that proposition closer to the facts in this case. HIS HONOUR: If you want to call evidence on it, I will hear you. MR DAVID: In my submission, the Crown should, in order to fill that gap that is there, at the moment, They are not trying to prove one from the other, but one by inferenence to another. It is a guess~ otherwise. It is an inference that might arise. It is a very dangerous inference, by MR DAVID: HIS HONOUR: MR DAVID: saying this man is a good driver, because he has owned a .... car for 30 years. HIS HONOUR: But, say you were found to have 20 bows and arrows, it would be easy enough to infer from that, that proposition doesn't follow. in the absence of seeing you use the bows and arrows, that you had some familiarity with them and you were able to use them. MR DAVID: Yes, but it doesn't mean that you are a crack or good shot. HIS HONOUR: It would probably mean you are better with a bow and arrow than I am, who has never owned one. MR DAVID: That is irrelevant. They are trying to prove that he is such a good shot that he couldn't have hit him by accident and must have known what he was doing. And that is what they are trying to preve. I would have thought there is no real argument about that, anyway. That is what they are trying to prove; that this man, on this occasion, couldn't have accidentally hit him, because he is a good shot. That minimum standard of being a good shot. It is illogical to say that you are going to prove that by the possession of 30 other guns over a period of years. HIS HONOUR: They go this far, I think that, having regard to all that information, you can infer from that he had the ability to load the gun quickly. That is on the film. And the ability to aim it and the ability to use it and the ability to correct for any defect in the firing of the gun. And, therefore, had the ability to shoot with the intention of the matters in s.15 (1)(b), or recklessly, under s.15 (1)(b). MR DAVID: Because he had owned 30 other guns, yes. HIS HONOUR: Yes. I would really like to call some evidence on that topic. HIS HONOUR: Do you wish to call evidence, or do you require that the Crown calls evidence? MR DAVID: I raised the topic of calling evidence and the Crown don't really wish to. HIS HONOUR: We have some witnesses in relation to that. MR DAVID: What, in relation to his actual ability? 37 No, in relation to familiarity with lots 38 of firearms, the whole nature of shooting a gun, I suppose it would be. I mean, that is the proposition that the Crown are putting forward. Familiarity with all these guns necessarily means that you are in the position that your Honour describes. HIS HONOUR: You are not necessarily there, but you have a threat of likelihood. It goes to what use we are making of the whole thing. Perhaps I may be doing Ms Vanstone's submissions an injustice, but I understand he~.~_tO be putting that you have a greater likelihood with a familiarity of guns than somebody without a familiarity with guns. MR DAVID: That doesn't take the case forward, at all. That is just a vague promise that he might have been better, if he didn't own a gun, when shooting from a very short range. It shows the prejudice which is carried along by the improper second wing of my learned friend's argument. HIS HONOUR: Dealing with relevance, at the moment, you denied any relevance. That is what I am putting to you is the relevance of the Crown case. On the first point put, that is the way to justify relevance, as they put it. MR DAVID: that reasoning. HIS HONOUR: Yes, in my submission, there is a gap in That is as far as I can put it. I understand that, but you would say, even if relevant, then the probative value would be outweighed by the prejudicial effect? MR DAVID: Yes, because what we get is a position which really doesn't take the Crown case forward, at all. CONTINUED If I can put it this way, it's all laid out this case, in a sense, on television, it's all there. He shot at him from a very close range of a person who has a lethal looking weapon, not a toy pistol, and there will be evidence to say that this is exactly the same as the real thing, with a knife in the other hand, a long knife, having threatened a woman who was seemingly alone in a deserted service station, then sees my client, then looks back and looks very closely at my client, then gone towards the door, then out of view and, on Dr James' evidence, must have turned around eithe~to go out the door or to face my client with a gun, and in those situations having got himself ready, as any responsible person should, having that weapon on him in case something happened, then shot him with this man with his armup as can be seen in the film. All of that situation, in my submission, then firing at fairly close quarters really doesn't want of any other evidence as his ability to hit him or not. It really takes it no further. What if he is a crack shot? What if he's not a crack shot? He fired at him, as far as the Crown is concerned, at fairly close quarters and he killed him. HIS MONOUR: Dealing with the second aspect of it, you have dealt with the probative value, what do you say is the prejudice to be suffered? MR DAVID: under this furry guise of being 'likelihood'. It shows this man as a sort of a nutter, to use the vernacular; that's what she is saying. He is more likely to act in a funny sort of way, in a strange way in a situation than another person would who is not obsessed with guns. That's what it's getting towards. She calls that 'likelihood' or 'state of mind.' It is really propensity in the sense that this blok~--- is a bit odd, is a bit obsessed with guns and he is more likely to use it than the normal bloke in the street. It's a prejudice, and it's a fairly current prejudice at It came from my learned friend's mouth HIS HONOUR: MS VANSTONE: HIS HONOUR: MS VANSTONE: HIS HONOUR: putting before. MS VANSTONE: before. HIS HONOUR: the moment, of course. 'Target practice' was the words. Armed robbers are fair game; that's straight from my learned friend's mouth. They are odious submissions to put to a jury or for a jury to think about in trying to decide the real issues in this case. That's what I am concerned about and fearful about. MS VANSTONE: If I could just read out one question and answer in the record of interview just to refresh your Honour's memory about this. HIS HONOUR: From Mr Brennan's statement? MS VANSTONE: That's right, p.9 of his statement. Actually it's p.8, question 30: 'When did you become aware that this person had a gun ... I didn't have time to aim'. That, of course, would be a live question whether or not the accused gives evidence. Then there's answer 33. 'I thought I missed, I wish I had.' Question 54. 35 too, and 54, that's right. That's as I understood what you were Yes, I just wanted to be specific Mr David, they are the matters that are worrying Ms Vanstone, that your client's case is that he didn't aim. She says I wish to call evidence of his familiarity with firearms which will show that he has a better chance. MR DAVID: drags along with it a lot of prejudicial material. HIS HONOUR: Do you wish to call any evidence in relation to the application? MR DAVID: If your Honour would rule against me, I .... would make oral submissions. I might have to consider I don't do your Honour the disrespect - that position. HIS HONOUR: Can I put this to you, I want to hear Ms Vanstone on one aspect. I am satisfied on the question of relevance, I am not satisfied on the question of prejudice at the moment. MR DAVID: By 'relevance' does your Honour mean relevance in the first wing of my learned friend's argument? HIS MONOUR: As she put it, the mechanics. MR DAVID: I would just like to consider my position after your Honour's ruling if your Honour might do that. HIS HONOUR: I will hear Ms Vanstone on tha~. What do you say about that? MS VANSTONE: I can't imagine what evidence could be called relevant to this question. It's pure commonsense. I have got 20 tennis rackets in my garage, there is a likelihood I am interested in tennis, It's as simple as that. HIS HONOUR: I am satisfied on the question of relevance. The matter that concerns me more is whether or not, if the evidence is relevant, and it has the probative value that you mentioned, whether the prejudice that might be suffered by the accused, and I put it on the second part of your argument on the basis that they believe he has an attitude to the use of firearms, it might outweigh the value of the evidence. MS VANSTONE: In my submission, there are two things about that. In view of the fact of the intention to fire, and the situation at the time the gun was fired is the crucial matter in this trial, and in view of the fact that this evidence of whether he aimed or not is an essential cog in the jury's consideration, the probative value is huge, in my submission. HIS HONOUR: You would say, I suppose, it's directly relevant to 15(1)(b) as I put to Mr David? .... MS VANSTONE: Yes, certainly; all of 15 I would say. HIS HONOUR: Of course, but in relation to property and assisting in the lawful arrest of an offender, questions of recklessness arise which don't arise in the other part of s.15 I think. MS VANSTONE: Yes, that's so. HIS HONOUR: It would be more likely to be relevant to that, would it not? MS VANSTONE: I think it goes straight to intention too. HIS MONOUR: It does, yes, because that's the first part of 15(1)(b), but also goes directly to recklessness. MS VANSTONE: must do. HIS HONOUR: evidence? MR DAVID: a witness. HIS HONOUR: MR DAVID: Yes, I agree with that, with respect; Mr David, do you wish to call some I will allow you time to do that. Could I consider my position. There is How long do you need? Just 10 minutes to consider my position, then I will let your Honour know. HIS HONOUR: Would it suit if I adjourn to 11.157 MR DAVID: MS VANSTONE: Could I just say if my friend wishes to call evidence, then I would like to be heard as to why I say it's inappropriate. But, yes, certainly I don't have any ~bjection. Could I hand up a couple of - MR DAVID: I will give my learned friend a statement or let her know exactly what - she's jumping the gun a bit, excuse the pun, but a statement of what he's going to say. It really depends. If some expert comes along and says 'You can own as many guns as you like, it doesn't mean anything,' it's something your Honour might want to hear, I don't know. HIS HONOUR: We will worry about that if you decide to call any evidence. MR DAVID: Yes, and I suppose I would provide your .... Honour with some idea of what he's going to say. I take it my learned friend is saying from that last comment she is going to make a submission I should not be able MS VANSTONE: It wouldn't matter because I say it's a question of commonsense, it's a jury question, it's not susceptible to expert evidence. HIS HONOUR: I understand that, but I think we ought to know what the evidence is. I meant to mention to you before you started I believe Ms Vanstone's junior has been in touch with you. MR DAVID: That' s fine. MS VANSTONE: Can I hand up a couple of bits of paper to assist you, one is the exhibits I intend to tender and a rough order of witnesses. That looks l~e it goes into Wednesday, but it may go into Tuesday. It might assist your Honour to see where we are heading. HIS HONOUR: Has Mr David seen those? MS VANSTONE: Yes. I wonder whether we could have a view tomorrow morning at 10 o'clock at the service station. HIS HONOUR: MR DAVID: HIS HONOUR: You agree with that? Yes. I am happy with that. Do you want to sit slightly longer hours to accommodate that? MS VANSTONE: If we could perhaps tomorrow morning meet at the service station at 10 o'clock, that would save us a few minutes. HIS HONOUR: We will do that then. MS VANSTONE: We will have a good idea at the end of today how we are going. HIS HONOUR: I will adjourn to 11.15 ADJOURNED 11 A.M. RESUMING 11.15 A.M. MR DAVID: Thank you for that time. If I could go back and try to put it a little more clearly about your Honour's proposition, it's this: Your Honour's proposition, and adopted by my learned friend, seems to be this, that if this man has belonged to a club and has lots of firearms, it is relevant to draw inferences to the effect that any question of him not having the appropriate intention would be negated to a certain extent, the intention in shooting the gun would be negated. HIS HONOUR: I am not putting that, I don't think. Therefore he is more proficient because MR DAVID: he's got a lot of guns. Therefore, hitting the person couldn't have been a fluke. It goes to the question of That's as I whether he really meant to do it or not. understood it. HIS HONOUR: It shows his ability to be able to discharge a firearm which will go to the matters of self-defence under s.15. MR DAVID: It goes to the question of whether he intended to kill, that sort of thing. So whether he intended the bullet to go where it was going as distinct from the person who might be incompetent and therefore shot him accidentally, it goes to those issues; in other words, his proficiency as a marksman. It is my submission, my bald submission, that the evidence as to ownership of guns and being a member of a gun club logically does not go to that question. There is a logical gap to say that because you are a member of a gun club and you have lots of firearms or have had lots of firearms, that logically you can draw the inference that you are good in the use of a firearm. There is a logical hiatus. I wish to call a witness who will give evidence to .... that effect that one does not lend itself to the other, that's the purpose for which I wish to call one witness. He's a Mr 'He can own as many guns as you like or you can belong to as many clubs as you like, but whether you are a good shot or not is an entirely different matter.' It's not a matter of commonsense, it's a matter of expertise. You can have as many guns as you like and belong to as many'gun clubs as you like, but whether you are good or not in using them, there has to be other evidence. HIS HONOUR: That stands to reason though, doesn't it? I don't disagree with that. It's just that you have a better chance of shooting a gun if you know how guns work and you have got a lot of them. MR DAVID: That's a long way from the proposition that we are really talking about as far as this case is concerned, namely whether he is such a bad shot that even though he hit and killed, the defence might come up with the proposition that he really didn't intend to hit and kill, he intended to miss. It's a long way from saying he - it goes to the question of whether he knew how to use a gun or not. It really hones itself down to that. Is he such an expert or is he so incompetent that it affords some defence or not under s.15. It's my submission that questions of how many guns he owns or how many gun clubs he belongs to has got nothing to do with it. HIS MONOUR: I follow. MR DAVID: That's the argument. My submission is that the Crown have not filled in that gap or have not produced evidence to say this man is a brilliant shot or an incompetent shot by calling this evidence of ownership of other ~uns. It goes to some other question, but it doesn't go to that. HIS HONOUR: If your premise is right logically, and one doesn't follow the other, you can't prove it, can you? MR DAVID: Yes, you could. club and get his scores. HIS HONOUR: That would be different evidence. That's what I am inviting my learned That would be different evidence. friend to do, that's different evidence. My learned friend even comes within the galaxy of - she wants to call evidence that 18 months ago my client said he was a good shot. That's all right, that might go to the question, but not that he's had a number of guns over a number of years. That's what I am objecting to. HIS HONOUR: I follow. MR DAVID: To fill out the objection I wish to call this witness to say that there's no connection between the two. HIS HONOUR: I follow what you want to do. I have difficulty with the proposition. I would have thought that that must follow as a matter of logic, as you say. Because someone has ten cricket bats doesn't make him a test cricketer. Because someone has ten guns doesn't make him the best marksman in South Australia, but you might infer from the fact he has ten guns he knows how ten guns operate and you might infer from that that he's a reasonable marksman. The man with ten cricket bats might also be a person who knows something about cricket, has played cricket and is capable of playing cricket, but not someone who has never played cricket. MR DAVID: But the proposition in this case is much finer than that. What we have got in this case, this man obviously knows how to use a gun, knows how to load a gun. HIS HONOI/R: But he says he didn't aim. His defence is going to be that he didn't mean to shoot him. MR DAVID: Not at all, he says he didn't aim, he said he didn't have time to aim, but he shot at him. He said he didn't have time to aim. HIS HONOUR: Doesn't quite say that to Mr Brennan, 'Did you aim the pistol at him. No, I didn't have time to aim. ' MR DAVID: 'Aim' means line up the sights; didn't have time to do that, but he shot at him. shooting up in the air. He wasn't HIS HONOUR: MR DAVID: 'I fired in his direction'; in order to defeat the threat. The clear inference from that the Crown can draw is, of course, he intended to hit him, how else was he going to defeat the threat, but he didn't intend to aim. It's a different proposition. In my submission, this is really all about nothing, it really is about nothing. There is no doubt he had a gun, he had loaded it and he fired in that man's direction, and he killed him. All of this, in my submission of relevancy, is really just going to blacken and waylay the whole trial because what we are,~oing to have now is a whole body of evidence about my client's previous behaviour and guns. HIS MONOUR: There are two pieces of evidence. First there is Mr Warren's and second Mr Justin's. The second evidence is slightly different from the first, isn't it, that goes even further. MR DAVID: Yes. The comment he makes to Mr Justin you could pass at a pinch. HIS HONOUR: The carrying of the gun though is a more serious thing from your client's point of view. MR DAVID: Yes, I object to that. HIS MONOUR: It's not quite that far. Mr Justin's evidence is he mentions how well he shot. That's rather vague. Relevant to whether it's going to be of any use or not. HIS HONOUR: I treat Mr Justin's evidence differently from Mr Warren's at the moment. Mr Warren I can understand for the first purpose that was put to me by Ms Vanstone. I can't understand it for the second purpose. In fact, I would have thought some directions have to be given so that the jury don't use it for the wrong reason. MR DAVID: In my submission, in that type of case .... directions would be fraught with difficulty. I am talking about the climate of the times, I am talking about this whole topic. The trial itself might get totally waylaid with a history of this man's guns. He might have to answer all of this which goes to prove, even if it is relevant, the point that is really going to fade away to nothing. HIS HONOUR: But his intention in shooting the gun is critical to this case, it's critical to his defence of self-defence or to the defence of self-defence. MR DAVID: It's not critical to self-defence, his intention is not critical to self-defence at all. If he intended to kill him, it doesn't negate self-defence. If he intended to kill him, it does not negate self-defence. .... Quite. MR DAVID: It's not relevant to self-defence, it might be relevant to these little unlawful arrest situations under s.15(1)(b), whatever it is. CONTINUED HIS HONOUR: It iS certainly not relevant to self-defence. It still could be. 'A person does not commit an offence ... herself or another.' So a man raises a gun to shoot you and you shoot him first, that is self defence, old law, new law or any other law. HIS HONOUR: Except for 15.2. You have still got to make that enquiry as well as the genuine belief under 15.1. MR DAVID: If a person is going to shoot.-you, you have to shoot them first. It is a pretty quick enquiry, in my submission. HIS HONOUR: That apart, then you have still got your defence under 15.1(b). MR DAVID: Yes, what I might call outer defences. HIS HONOUR: It is part of the enquiry and therefore his intention as to whether or not he intended to cause death or whether he was reckless is a matter of enquiry. MR DAVID: On the Crown case it raises itself, yes. HIS HONOUR: I come back to my original proposition. You are wanting to call evidence? Yes, to say exactly what I put to your MR DAVID: Honour, namely that this man's experience just doesn't follow. HIS HONOUR: I can understand that, without having to hear evidence. MR DAVID: The point of raising it in those terms though - your Honour seems to be leading toward the point that if he doesn't say that it doesn't make any difference to your Honour's ruling. HIS HONOUR: I will hear Ms Vanstone first but I wouldn't think it would make any difference. MR DAVID: I can tell your Honour what he is going to say so you would be clear about that. This man is a .... four times olympic representative for Australian pistol shooting. He is a full-time coach, with all the experience that those positions hold. Me will say that the shooting of a pistol has got nothing to do with people that belong to gun clubs. He will say that he has known people who have belonged to gun clubs for many years, who own lots of guns and pistols and are terrible shots and always will be. He says other enquiries have to be made as to whether a person is a proficient shot or not. There is no suggestion in this case that my client doesn't know how to handle guns. We will agree that as an admitted fact if the Crown wants us to, how to load There is no question of that but we ar.e~now going --41 them. to the question of whether he is such a bad shot or good shot that it goes to the question of intention. And this man would give evidence that those objective indicia, namely how many guns he has owned and how long he has been a member of a gun club, doesn't tell us anything except that he belongs to a gun club and owns lots of guns. His experience will be that over a long period of coaching people, being involved, that the That converse can apply, that it is just not a guide. Ms Vanstone? is virtually what he will say. HIS HONOUR: MS VANSTONE: I object to that evidence being given, on the basis that it is not a matter for expert evidence, it is simply a common sense matter. Mr David chooses to put this matter in the absolute, as if we assert that membership of a gun club instantly makes you a good shot or ownership of guns instantly makes you a good shot. It is not put in that way and your Honour has put it in the correct way, which is a relative way. What we suggest is that if you have a lot of guns, if you belong to a gun club and if you go to shoots and so forth, then you enhance your natural ability, so you are better off than Joe Blogs in the sense that you have enhanced whatever capabilities you have. It is a .... relevant matter, not an absolute matter. That is a matter for common sense, in my submission. Here we say that this evidence could entitle the jury to find that Mr Foreman is better able than the man in the street to take aim, that he is better able to do it quickly, take effective aim quickly and he is better able to compensate for the deficiencies of this weapon, if there are any, because he has this background in use of guns. It is as simple as that. It is a simple proposition and in my submission surely it speaks for itself. No one can come long, olympian or not, and add anything to submissions on that topic. HIS HONOUR: Mr David, even if the evidence was called, as you put to me in your submissions,.._~ think it would not incline me to change the tentative view that I hold about the admissibility of Mr Warren's evidence MR DAVID: If your Mortour pleases. I want to preserve things for a later stage. I will short cut by saying would your Honour rule to that effect? HIS HONOUR: I will rule to that effect. I will rule to the effect of in upholding Ms Vanstone's submission that it is not the subject of expert evidence and Therefore ought not to be admitted. MR DAVID: The fact that membership and familiarity doesn't necessarily make you a better shot. I want to get this clear. I don't want your Honour to be misled about what I am saying, it wouldn't be fair on your Honour. HIS HONOUR: That the familiarity with weapons and membership of a gun club does not necessarily make you a marksman. I accept the proposition that Ms Vanstone has been putting to me, that familiarity over a number of years with a number of weapons is a matter from which you might infer that a person has a better capability of firing and discharging a weapon than a person who doesn't have the same familiarity. MR DAVID: If your Honour pleases. HIS HONOUR: That is the position I hold. I don't .... want to put this threateningly. Am I clear to you? MR DAVID: I have a problem with that as to what that has to do with this case, the comparison with a man who happens to be in the garage at this time than a person in the street. I thought we were talking about whether that affects the question of this man on this occasion to shoot accurately or not, which is what this question is all about, in my submission. Of course it is. The jury might be able to infer from the fact that this man has had familiarity over a number of years with a number of weapons, that that familiarity made him better able to discharge a pistol with a degree of success than he would otherwise have had but for the familiarity. That is the proposition your Honour has put and I can't call this witness to say that that is not so - this is really what he wants to say - because of lack of expertise. You can't call expert evidence to establish that a person who has familiarity with guns is necessarily a marksman. I wanted to call this witness to negate the proposition that your Honour originally put about better able to succeed. That an inference might be drawn. That that inference might be drawn. A witness can't give evidence as to that, whether an inference is to be drawn that a person is better able. No, but he can give evidence as to the basis of fact whether you could draw that inference reasonably or not. No, I won't allow that evidence. If a doctor gave some evidence, for instance, about a basic medical proposition from which the Crown is asking to draw an inference and then you call evidence on the voir dire to say that that basic proposition is just nonsense or there is no evidence to .... suggest that basic proposition. And the basic proposition we shall putting through this witness is that one doesn't affect the other. HIS HONOUR: But this witness is not going to give evidence about this man's capability to fire guns at MR DAVID: Neither is the Crown, that is what HIS HONOUR: I understand the Crown position. The Crown position is simply, as I said, the familiarity with firearms might give rise to an inference that he is better able to discharge the firearms with a degree of succeeding. And this witness is going to-s~y~the familiarity of firearms and discharging of firearms is two different things, and successfully discharging firearms is two different things. And what is the body of knowledge upon Which he would give expert evidence? Enormous personal training and training That is his expertise. What is the scientific study about which he is giving evidence? MR DAVID: I don't think it has to be scientific study. You can be experienced in all sorts of other areas, art, for instance. Then what is the matter of expertise about which he is going to give evidence? The ability of people to shoot accurately, of which he is an expert. He is four times olympic champion. I don't want to appear to be arguing but that is not a proposition which I am putting, that someone might, by reason of the degree of familiarity, be better able to discharge a firearm. That is the same thing, only as to the matter of degree it is a bit lighter. We are talking about the same area, with respect, whether familiarity .... leads to the question of expertise. Whether it leads inevitably to the other. MR DAVID: Yes, of itself. Familiarity, proper training, might be another matter but we have got no evidence as to that. I understand the evidence you want to call and I don't allow it. Do you wish to address me Ms Vanstone in relation to the second statement of Justin? I have a greater degree of difficulty in the use of that statement than I do in relation to Mr Warren's. Firstly, you mentioned how well he shot, which I think is somewhat va~ue, and secondly, the fact that he was carrying a gun--on-that night might be so prejudice to outweigh the probative value of the evidence. It is another occasion, of course, when he is carrying a gun to that service station. In as much as the jury already have evidence that there he is on 14 October with a ~un, it simply provides another occasion. The reason for having it on that occasion was apparently the same, to show one or more console operators the particular ~un he had at that time, which I understand is a different gun but still a handgun. But apart from showing that he has propensity to carry ~uns on some occasions, what else does it show? MS VANSTONE: It shows again this ongoing interest in weapons. The same matter, that goes back to an interest possibly demonstrating a greater expertise. The question of how well he shot goes right to the heart of this issue. It is the very evidence which Mr David has in effect said we could have led. He said a moment ago we could have got someone from the pistol club to bring along the targets showing where Mr Foreman had hit the bullseye, or whatever they do. It is colloqial, in a sense, but it is highly relevant, in my submission. If Mr Foreman doesn't like .... The fact that he said how well he shot or if he claims he didn't say it, well then he can tell the jury that, but here is a witness coming along and saying Mr Foreman in effect boasted how well he shot. If it is a question of whether he aimed and whether he hit where he aimed, then out of the man's mouth is evidence of how well he shoots in the context of handguns, it is highly relevant, in my submission. HIS HONOUR: I will allow for the admission of the evidence of Mr Warren but I won't allow for the calling of Gregory Justin. Do you wish me to give reasons now or would you be satisfied to have them say on Wednesday morning? MR DAVID: MS VANSTONE: HIS HONOUR: MS VANSTONE: HIS HONOUR: I don't ask for reasons until.~ater on. No, I don't seek reasons. Do you want to say something? No, I think it's too late. I will give some reasons on Wednesday morning then in relation to the admission of - MR DAVID: I am just wondering does Mr Warren's evidence entail the second statement? HIS HONOUR: I thought the second statement was part of the first, effectively. MR DAVID: Namely, that he has breached a condition of his firearms licence. In my submission that doesn't go to expertise or mechanics. I am just wondering how that sits with the reasons. HIS HONOUR: Where are you pointing to? MR DAVID: I think the question of the whole of the second statement goes to the question of the nature of his licence. I am just wondering how relevant that is. I should have addressed your Honour more specifically on both. HIS HONOUR: As I say, I thought the second statement was included in the first, that the second statement was drawn in case the first statement was inadmissible. Is that right Ms Vanstone or am I wrong about that? Yes, I want to lead all the evidence, MS VANSTONE: yes. HIS HONOUR: What part of it, Mr David, do you object to, of the second statement? MR DAVID: The lot. I objected to it all originally but your Honour has brought it more down to the specific of the admissibility as distinct from what I thought was the whole tender of it. I know your Nonour hasn't given reasons, but from the argument we are having I take it your Nonour allows the evidence of his familiarity with firearms, because of the reason your Honour 9ave. In my submission the question of the nature of his licences doesn't really bear upon that at all. All that shows is that in this case he might have HIS NONOUR: But that first statement is 9oing to include all of that evidence. MR DAVID: I think that should be weeded out, on the basis of your Nonour's ruling. As I understand it, as the argument has gone, the ruling is familiarity with Weapons, ownership of weapons, etc. HIS NONOUR: May lead to an inference of that. MR DAVID: Yes, where licences exist. That is fine, in fact that is helpful to the defence, rather than him having unlicenced weapons, but where there is a suggestion that might be made that he had this gun, on this night, in breach of a condition, is something I object to. HIS NONOUR: I just don't find that in the statement at the moment. It says 'The class C' p.2. You have got your client's statement to Mr Brennan at p.10. Me says how he can carry a gun. There anything different in Mr Warren's statement? MR DAVID: I am just waiting for your Honour's ruling first, then we will deal with - HIS NONOUR: You have got another application, have you? MR DAVID: .... HIS NONOUR: then for exclusion as to Brennan's statement. MR DAVID: It depends on your Nonour's ruling. I didn't know that you were 9oing to ask is. there can be - HIS HONOUR: argument? If your Honour's ruling is that it all goes in, That would be consequential upon this MR DAVID: Yes. If your Honour rules out the question of classes, the classes of licences, as in the second statement, then that would have an effect - the short passage in the first. HIS HONOUR: I don't read anything in Mr Warren's statement, unless you can point to it, that shows the prejudice in issue. MR DAVID: It shows I think the class C, which authorises the possession and use of pistols was granted for collection and display purposes only as a member of the Sporting Institute Association of Australia. CONTINUED It might be argued that, because he was carrying it around with him, that goes further than the conditions as set by the class C licence. Therefore, he has breached a condition of that licence, from the very facts that will arise in the case. And, in the Magistrates Court, he has in fact been charged with that. HIS HONOUR: Charged with? MR DAVID: A breach of the condition of his licence. So it is that aspect that concerns me, your Honour, which seems to be much different than the basis of your Honour's ruling. MS VANSTONE: Presumably he will plead not guilty in the Magistrates Court, because he has said that all he was doing on the night in question was displaying the weapon to the console operator, so presumably, in his own mind, he had a defence. HIS HONOUR: But that doesn't matter, that doesn't give me the defence, though. MS VANSTONE: That may be so, but if he thinks he was acting in accordance with his licence, then there won't be any prejudice. I don't follow that. If he genuinely thought that he was not breaching his licence, then the jury will completely disregard the fact that he was operating outside of its sphere of operation. But if, in fact, he lied about that matter, if in fact, he didn't have it for the purpose of showing it to the console operator, then that might be a significant matter. In other words, if he lied on that topic, when he spoke to Mr Brennan, the jury might like to know about it. It is a perfectly proper question, of course, to ask him 'Why have you got that weapon in your hand?' The jury would want it answered, if he has got it in his pocket on that night. And his answer was 'I was showing it to the console operator.' It is further proper that the investigators put to him something about his licence and have his answer in relation to it. It goes to the heart of this matter. That is all, on that topic. MR DAVID: Two things; if he has got a defence to it, it is not for this court to decide and to be distracted with that issue, the question of his licence. What has the context of why he has this gun got anything to do with this, at all? Are they going to say he was waiting for a robber to come along? Is there any suggestion of planning, or reason for having the gun? The Crown case is this fortuitously happened. There is no saying that he was waiting for this to happen. He was having a chat and coffee with a friend. If there is an enquiry and a lie, which my learned friend is grabbing hold of, what has that got to do with the issue in this trial? What can the Crown say, unless regurgitating that he has a predisposition and was waiting for someone to have target practice with? I am concerned this trial is going to get waylaid on these issues, rather than the real issues to what happened, when this person walked in. In my submission, the short answer is that the .. question of whether he has got a proper licence or not, whether he has got a defence or not, is a matter for the magistrates court, not this trial. HIS HONOUR: What is the prejudice of that contained in Mr Warren's statement, at the minute? MR DAVID: That lays the basis for my learned friend making a submission, or for the jury working it out themselves, which would be even worse, that this fellow has broken the law about firearms licences, with all the prejudice known and unknown that might come from that. HIS HONOUR: What do you seek to have excluded, the reference to class C, or all of that? If just the C is MR DAVID: I think all of it. missing, it is going to look odd. HIS HONOUR: I must say, I find it difficult to read in as much in this statement as you say, Mr David. MR DAVID: Yes, I might be being overcautious, but the Crown have a leaning to go to other broader issues and I want to keep that all at bay. And here we have, as I say, a direct, or a submission that could be made that amounts to a direct breach, for which he has, in fact, been charged. Anything else? HIS HONOUR: No. HIS HONOUR: I am against on you that, Mr David. I will allow that evidence to be given. MS VANSTONE: Going back to the earlier ruling about Mr Justin, your Honour's earlier ruling, do I understand your Honour has ruled that all of that evidence goes out? That is, the bringing in of the handgun, the showing of it, and the saying how.well he shot? I mean, obviously the last, your Honour specifically said. HIS HONOUR: Yes. MS VANSTONE: Could I pose this question and it just helps logistically; is your Honour saying it doesn't have relevance, or it is too prejudicial? The Crown might choose to explore another avenue, to get the same evidence. But, if your Honour is saying that is not relevant - HIS HONOUR: No, I have reached a view that it was prejudicial in leading evidence in relation to his having carried a gun on a previous occasion and for the purpose of showing it. MS VANSTONE: If we just led how well he shot, I assume your Honour is excluding that? HIS HONOUR: Yes, I have as well. MS VANSTONE: If we had other evidence that demonstrated he was a good shot, I wondered whether there is any point in going and getting that evidence, or if your Honour has found it is not relevant? If it is a case of too much prejudice, there are other ways of approaching the problem. 1 HIS HONOUR: I think it is just the way it is sought to be led, at the moment, that there is another occasion where he has gone to the same service station and he produced a large handgun, he said, at that time, and then talked to the person about how well he shot. I think that evidence is prejudicial. I also think the evidence of saying how well he shot has little probative value, compared to the prejudice suffered. MS VANSTONE: On the face of it, if Mr David was to show he was a four time Olympian, obviously that would make a huge impact as to how they reason as to whether he aimed and hit the mark. And this, of course, is very much along that line. HIS HONOUR: But it is an odd step along that line, isn't it, to prove it this way? If you wanted to establish he was a four time Olympian, you couldn't do it by establishing that on one occasion 14 months ago he said how well he shot. That may be enough, but surely you could MS VANSTONE: prove that he had been to the Olympics, I suppose. You could prove that someone was present when he said he had been to the Olympics. You could do it many ways, or by photos. HIS HONOUR: Or his score at the Olympics. Yes, if he said 'I am a good shot', that would answer it. This evidence is no more than saying how well he shot. And that strikes me as an extraordinary pretty vague way. What did he say is that the effect of what he said is how well he shot. MS VANSTONE: Yes, I saw Mr Justin on the weekend and he told me that he wasn't happy about the way this statement was worded, in fact. HIS HONOUR: I can only rule on the statement, can't MS VANSTONE: Exactly, I am wondering if I can ask the police to go back to him now and ask for a bit more detail, because he actually told me that there were two KC 1E occasions where this came up and that he said that he wanted to change it, but the officer who took his signature didn't think it amounted to anything. HIS HONOUR: I don't want to be difficult about this, but oughtn't you have told me that before? Because I can only rule, I think, on what I have got in front of me. And you are now really putting different emphasis. MS VANSTONE: Your Honour has drawn emphasis to how well he shot and also in the context of producing the handgun. If they are separate occasions, then that might make a difference to your Honour. HIS HONOUR: It might. I just don't know what the evidence is. MS VANSTONE: It might. I am just wondering whether I can attack those two areas and raise that matter again tomorrow, if that was convenient? HIS HONOUR: I am happy for you to raise whatever matters you wish, at any time, subject of course, to what Mr David says, but he may wish to have these matters disposed of before it starts. I don't know. He may not. MS VANSTONE: Yes, I haven't attacked any other manner of proving that the accused was a good shot, because.I had assumed that this would go in. And, indeed, it is not mentioned in the rule 9. So, in that sense, perhaps I could raise it again tomorrow and see if there is any progress? MR DAVID: I want every scrap of evidence that the Crown is going to lead before we empanel a jury in this matter. I tell you why this wasn't mentioned in the rule 9; we got a list of the Crown witnesses to be called sometime ago, before Ms Vanstone became involved in the case, and his name was not on it. There are many, many more witnesses. HIS HONOUR: I am not criticising anyone. Counsel have all sorts of reasons for doing what they do. On a topic such as this, we don't want MR DAVID: to embark on the empanelling of this jury, in this case, until we know exactly what we are facing and have all the rulings. I understand there may be a need to call We know other witnesses, as it goes on. It isn't that. Mr Justin is here. We have an idea of what his statement is. If there is going to be a filling out of this, it might effect all sorts of other things. It might even effect your Honour's ruling as far as Mr Warren's evidence is concerned. If the Crown get directly and properly through Mr Justin what they are seeking, they may not have to go through the process of putting it to Mr Warren. MS VANSTONE: No evidence will be called today which bears on this question. I won't open on it. It is plans, photos, videos. I think that is just about all. MR DAVID: I don't want to empanel the jury. MS VANSTONE: It can't make any difference to Mr David if we proceed to the end of today and find out tomorrow morning whether there is any application for further evidence. HIS HONOUR: Can you get your instructions by lunchtime? Rather than deal with instructions, I really would like to deal with statements in writing and signed in the context of what we have been talking about. But certainly I can't see why they couldn't be available tomorrow morning. HIS HONOUR: I suppose Mr David is entitled to know exactly what the evidence is, before it starts, is he? MS VANSTONE: He has come here expecting, or at least taking into account that this evidence might be before the jury. All I am wanting to do is to get this evidence before the jury by means which is acceptable to your Honour. So, it is not changing the Crown case in any sense, at all. HIS HONOUR: No, I realise that, but he is entitled to have all these matters dealt with, isn't he, before the matter starts? I don't want to be difficult about this. MS VANSTONE: There is no reason to delay cross-examination today of witnesses who don't bear in any sense on this topic. It is just formal evidence and it can't possibly make a difference to Mr David's position. MR DAVID: I don't know what Mr Justin is going to say. It is not formal evidence. HIS HONOUR: No, the other evidence is formal evidence. MR DAVID: No, it is not the calling of the evidence that worries me. It is the actual starting of the trial. HIS HONOI/R: That is a matter of concern. And the empanelling of the jury. If MR DAVID: something crops up with Mr Justin that really changes the face of things, I don't know what position we are going to be in. It is better to wait until that is done, rather than having a jury empanelled and getting into trouble because of a late piece of evidence which is not unimportant. If Mr Justin's evidence is he e mentioned how well he shot, it is pretty meaningless, or it is pretty harmless, but if Mr Justin is bursting to say something else and there is to be a statement of..all sorts of other things he said to my client, I want know exactly what that is all about. It might be nothing, but it could be anything. MS VANSTONE: I am not suggesting there are other things. What he told me is there are two separate occasions. It may be that. And my understanding was that the production of the gun was a separate occasion from this conversation about interest in firearms and how well he shot. That is what he told me on the weekend. I am not suggesting we are going to get new information from him that isn't there in one form already.. And the other topic, of course, is quite separate and relates or may, it may relate to the accused's performance at his gun club. That is an area that I would like to attack. That may be evidence you would call or HIS HONOUR: you seek to? MS VANSTONE: I would like to get statements about it, If your Honour considers perhaps tomorrow morning, whenever, that it is prejudicial, it won't go in. I ask you to allow me to raise the matter tomorrow morning and proceed, in the meantime. HIS HONOUR: I appreciate that, but isn't Mr David's client entitled to know the totality of the evidence he faces on such a serious matter before a jury a empanelled? MS VANSTONE: There is no magic in empanelling a jury. It could have been done three weeks ago and today's evidence is merely formal evidence. He will know before anything like the conversation is embarked upon, or any of those matters, what the position is. He will know by tomorrow morning. By that time, we will have in the plan, the photos, the videos, and Mrs Rowe, if your Honour thinks that doesn't inpinge on it, which in my submission, it doesn't. And nothing will have changed, up to that point. Nothing at all. It is all evidence that inevitably will go before the jury, when they are empanelled. HIS HONOUR: But the evidence you are seeking to make enquiries about in relation to his performance as a shooter in other places is evidence upon which Mr David would want to get instructions, wouldn't he, first - I appreciate the other evidence is formal evidence - but before he, I suppose, finally finishes advising his client in relation to this matter? MS VANSTONE: If we get statements and if your Honour allows us to use them, then of course, if Mr David needs an adjournment, I won't oppose one. HIS HONOUR: Why ought he not have that in advance? MS VANSTONE: Because we don't even know we are going to get anything. We are just wasting a day for no reason. It may come to nothing. It may be material to HIS HONOUR: MR DAVID: HIS HONOUR: MS VANSTONE: keep in the brief for cross-examination, if we ever reach that point. Who knows? HIS HONOUR: I appreciate the parties don't want this matter delayed unless it is absolutely necessary, but if there is to be a delay, would it not be better before the jury is empanelled, so the jury are not inconvenienced, as well as anybody else who might be invonvenienced? MS VANSTONE: Realistically it isn't going to be more than a day that the jury will be invonvenienced for. The sheriff is in touch with them. There is no difficulty about that, but Mr David can do nothing with his adjournment today. It is after any new material arrives that he may need to make use of time and, if there is no new material, then we have just wasted a day's formal evidence without result. Your Honour's ruling obviously stands, come what may, but if there is further material, then I have a right to raise it tomorrow. HIS HONOUR: I suppose you do, in any event, don't you? I do. I am foreshadowing that I might wish to, because I confess I am taken a little bit by surprise in relation to that matter. Perhaps I should have looked at it a bit more closely before. HIS HONOUR: Mr David, what is the prejudice then you say you would suffer by that? MR DAVID: What concerns me is not knowing what this is going to be and it appears to be reasonably elaborate, when we are talking about accuracy and that sort of thing, I am concerned that the formal evidence might be such that I will have to cross-examine on in I just don't know. the light of what is coming. Could it be? I don't. Mrs Rowe's inference - Mrs Rowe is not giving evidence today. She is, but we can stop after the plans and videos and objective evidence, anyway. MR DAVID: It is not a long trial and I really want to prevent this slow leaking of the Crown case behind your Honour's rulings as we go along. That is what is worrying me. I want to know what the Crown case is now, pursuant to your Honour's rulings which your Honour has made - and a lot of them against me - and know exactly what the position is so my client can face the charge when the jury is empanelled. HIS HONOUR: I understand that, but Ms Vanstone is putting to me that the only evidence she wishes to call today is the formal evidence, which ought not to effect your client's position, one way or the other. MR DAVID: Yes. HIS HONOUR: I suppose your clients could be further protected - and this almost goes without saying - by having the witnesses recalled, if necessary, if any evidence she later sought to call impinged upon that previous evidence. CONTINUED ! Unlike the civil court, it's messy before a jury. HIS MONOUR: Maybe so. What is the direct prejudice your client might suffer by having Ms Vanstone open to the jury and call the formal evidence? MR DAVID: There's always been a principle in the criminal court, that's why we have hand-up committals and that's why the defence are always shown every statement that's going to be led for all practical purposes before the jury is empanelled, we know exactly .... what we are facing before this jury is empanelled. I don't know what these witnesses are going. to._~.at all. HIS MONOUR: There may not be any witnesses. MR DAVID: We are very vague about it, and the vagueness is something that concerns me. There may not be a witness. We have heard possibly of two other conversations. We have heard of people in the gun club etc etc, I don't know. It may change the face of the whole case for all I know. Out of an abundance of caution, only for half a day, nothing more, it might even be this afternoon we can empanel the jury. I want to know finally what evidence she is going to call instead of this slow leaking process as we are going along after each ruling. HIS HONOUR: I think that's a bit unfair, it is unfair to Ms Vanstone. MR DAVID: It's not a matter of being fair, it's a matter of that's what's happening. HIS HONOUR: She is adapting to the forensic movement of the trial I would have thought. MR DAVID: There might be an application, and I am quite serious about this, that the whole basis where we look at the prejudicial and probative balancing act in your Honour's ruling about Mr Warren might change when other evidence has been called. HIS MONOUR: That evidence is not going to be called-- today, is it? No,'but my friend is going to open on this. :: AP iF MS VANSTONE: I am not. I am going to open on the interview obviously. HIS HONOUR: Mr David, do you say that starting now would affect your client's fair trial? MR DAVID: I can't say that because I don't know what's coming. I say I am at a disadvantage because in the normal course of events I have all that material before me now. It may or it may not, I don't know, but just being in that state of ignorance is a disadvantage, in my submission. MS VANSTONE: Could I perhaps step back a bit. I am just not sure what, if anything, will come along. If your Honour is inclined to stop the trial pending some sort of hope that something else will emerge, which quite possibly I will be able to use anyway if Mr Foreman gives evidence, then I prefer to go ahead now. If something at that stage I believe comes along and I want to raise it some time tomorrow, then I recognise that your Honour will be more against me than your Honour is now, bearing in mind what Mr David said and I am prepared to take that risk. HIS HONOUR: What do you say about that? I can't argue about that. HIS HONOUR: We will call the jury panel up. No other preliminary matters? MR DAVID: No. Can I give a warning so that I can't be blamed if I ask for a mistrial. If my learned friend opens on matters on which your Honour has ruled and these new statements or evidence affects those and that is allowed in, there is the risk of an application. I want to make that clear. HIS HONOUR: In case I reverse the ruling I made earlier in relation to Mr Warren's evidence. MR DAVID: I might ask your Honour to do that. If your Honour did do that in the light of, say, some very ._ 35 clear evidence came along which would make that totally irrelevant on the basis of your Honour's ruling and do it without the prejudice, and my learned friend opens on :: /-~ that or it is alluded to in any way, I will have to ask for a mistrial. I want to 9ive a warning about that. Call the jury panel up. HIS HONOUR: ADJOURNED 12.10 P.M. RESUMING 12.15 P.M. MR DAVID: I appear with Mr Coppola for the MS VANSTONE: I appear with Ms Mealor on the instructions of the Director of Public Prosecutions. CHARGE: MURDER NAMES OF PROSPECTIVE CROWN WITNESSES READ TO JURY PANEL JURY EMPANELLED ON APPLICATION OF MS VANSTONE, WITNESSES ORDERED OUT OF COURT. PLEA: NOT GUILTY MS VANSTONE OPENS FOR CROWN JURY LEAVES COURT 12.58 P.M. MR DAVID MAKES APPLICATION TO EXCUSE ACCUSED FROM PROPOSED VIEW. MS VANSTONE NOT OPPOSED. APPLICATION GRANTED ADJOURNED 1 P.M. JMg 1G CROWN OPENING MS VANSTONE: The accused stands charged with the shooting murder of Dallis Milsom. Dallis Milsom was 17 years old at the time of his death. Immediately before he was shot, he held up the attendant at the service station at Keswick. Her name is Margaret Rowe. Dallis Milsom held up a kitchen knife to her while she was at the console or counter at the service station and she handed over $150. The accused, Mr Foreman, saw all this. He was sitting near Mrs Rowe having a cup of coffee with her. Me happened to have in his pocket a Beretta semiautomatic pistol and ammunition. As Mrs Rowe handed over the money and as Dallis Milsom turned away from the console to leave the shop, the accused turned, with his back to Milsom, and prepared his pistol to fire. Me clicked the magazine into the weapon and the magazine contained ammunition, and he cocked the weapon. That makes a distinctive noise, as you will hear. The robber, Milsom, continued towards the door. He had to travel about six metres to get to the door. Mrs Rowe dialed 11444 for police attendance but either got the engaged signal or no answer. When Mr Milsom, the robber, was within a metre of the door, the Crown can't even say which side of the doorframe he was, he was shot by the accused. The bullet, or projectile, as it is called, hit him behind the top of the left shoulder. Then the bullet exited, not even an inch away, on the top of the shoulder, then it reentered a couple of inches away on the left side of the neck, below and behind the left ear. It didn't ricochet, rather it travelled in a straight line. The track of the projectile suggests that the boy was in motion and in a rather odd position as he was hit. The projectile in fact severed Dallis Milsom's carotid artery, resulting in immediate and extensive blood loss. Normally death would follow pretty rapidly from such an injury. In this case, Dallis Milsom survived but 12 hours later he suffered a massive stroke and then later he died on 19 October. 1 It would seem that straight after he was shot, Milsom kept going, proceeding away from the service station shop area, but ten or so seconds later he turned around and came back in. He dropped the knife which he had used, and the bag with the $150, at the door, and he also dropped a replica pistol which he also had on his person and he came back into the service station to seek help. He was bleeding freely from the neck. Mrs Rowe called an ambulance. She then went outside and got paper towels, with a plan of putting them on Mr Milsom's wounds to stem the flow of blood. It was on her way out of the shop that she saw for the first time that Milsom had had this replica pistol. Up to that point she had only been aware of a knife. Police arrived fairly quickly and so did the ambulance. The police who artended the scene included Detective Senior Constable Brennan and his partner Detective Collins. They took the accused to Adelaide Police Headquarters to interview him. He wasn't under arrest, he went with them quite freely. The purpose of going there was so that an interview with him could be recorded on video. Unfortunately it was later found.out that although they thought they were recording the interview in that way, the equipment hadn't in fact operated correctly. When Detective Brennan discovered that a couple of days later, he wrote down his best recollection of the conversation and I understand it, it won't really be disputed that what he wrote down was pretty well correct. The accused told Detective Brennan that he was 27 years old, that he lived at Henley Beach and that he was an owner driver of a tow truck. He said he was at the service station as he would normally drop in and have a cup of coffee and a chat with the attendant and he'd do that on most evenings when he was working in his tow truck. Rather than paraphrase what he said I plan to read to you, from the interview, an excerpt of what he said: He said 'I sat down and was talking to Margaret.' That was Margaret Rowe of course. 'A customer must have entered the shop and next I heard him say something like ... I understand that. Do you still feel up to answering some more questions. A. Yeah, I'll be all right.' And then there were questions on the appearance of the robber. Then there was this further passage: 'Can you describe this person's manner when he was speaking to Margaret, talking about the robber ... No, not really other than as I say he didn't look real tough, he was quite well dressed.' Further on: 'When you shot at this person did you intend to hit him?' He said 'I didn't have time to think about it, I was in fear for my life and I shot instictively, I didn't have time to aim or think ... I am not a cowboy.' CONTINUED And it goes on from there and you will hear it all. And so you will see that the accused claimed he fired at Dallis Milsom only because he himself was threatened by the fleeing robber. Obviously whether or not Dallis Milsom did threaten the accused will be an important matter for you to determine. It is in that context that the point of entry of the bullet and its path into the body becomes highly important. On that question, you will have the assistance of Dr Ross James, a forensic pathologist and you will also see photographs to show you the.position of the wounds. You will recall that I said that the projectile hit Dallis Milsom behind the top of the left shoulder and that it then exited through the front of the shoulder and then re-entered at the neck. If a person was standing upright, then it would appear that the bullet was travelling upwards, at about 18 degrees, and that this will be the evidence of Dr James. But, if the projectile was, in fact, travelling horizontally, pretty close to horizontally, as seems more likely, then it would suggest, Dr James will tell you, that Milsom's left shoulder was raised slightly more than his right shoulder, at the time he was hit. And that would account for the angle. So, if you lift your left shoulder up, that angle goes to about horizontal. That angle might suggest something about the position of Milsom when he was hit. The other angle that was measured by the pathologist, Dr James, and about which you will hear from him, demonstrates the direction at which the bullet was fired at Milsom. Sometimes it is hard to visualise these matters, but if you imagine dividing a person into two sides down the middle and then divide the same person into front and back, again down the middle, when you have effectively got four quadrants, as I mentioned, the quadrant that we are .... talking about is the left back. You will hear evidence that the bullet entered the body, the left shoulder, at an angle of 50 degrees backwards from this line that goes straight out (INDICATES). So, if that line is nought degrees (INDICATES), if the one going backwards is 90, then it is more than 45 degrees behind the body. And Dr James will demonstrate this, ladies and gentlemen. So, to put it into context, it goes in at the back of the left shoulder, because the shoulder is a bit raised, it comes out again and then it hits at the neck, somewhere around there (INDICATES). So it is coming roughly in that direction (INDICATES). Ladies and gentlemen, both those angles w~e measured quite scientifically by Dr James, so it is not just a guess, it is a measurement he made during his post mortem examination of the deceased. What Dr James can't tell you is where the arms of the deceased were at the time he was hit, or whether his head was facing forwards, or at some other angle to the body. So that is one important matter, ladies and gentlemen, which may well bear on whether, in fact, the fleeing robber did turn round and threaten the accused. Ladies and gentlemen, part of these events were recorded as they progressed on a video camera which was running continuously in the service station. It was on the ceiling of the shop area and it was trained towards the console where Mrs Rowe was in charge. You will see that video and you will see still photographs taken from that video. The video machine itself records in such a way as that, when it is played back, it looks to be in fast motion. Accordingly, it has been necessary to subject a copy of that video to a process whereby the film is slowed down, in effect, and it brings it back to real time. And, in due course, you will see the original video and the one that has been brought back to real time, so you can see how quickly the events progress. And a close-up version of that video and, further, a real time copy, with audio, as well. There was a microphone in the camera set up and some noises are audible, but the only one you can really make out clearly is the pistol shot, itself. So the film shows the deceased, Dallis Milsom, approaching the counter. It shows him obtaining the money and it shows him seeing the accused, having a bit of a peer to where the accused was. Threatening with a knife. And then heading out towards the door. And there is only one door, the one that he came in through as well. Only something like two seconds elapses from when Dallis Milsom gets his money and turns to leave and when he disappears from view. In that time, what you see is him heading towards the door. In that period, when you can see hi-m.,-he is certainly not threatening anybody with his replica handgun. Indeed, it is difficult, but not impossible, to see that handgun on the film. But, whilst he was heading for the door, the accused can be seen with his back turned towards the camera and he is fitting the magazine in, or clicking it into his Beretta pistol and then turning around to face the fleeing man. Then, as you will see, the deceased disappears from the camera's view, because the camera stops short of the doorway. And it is after that you can see the accused standing up straight and extending his arm out straight and you can hear the noise of the gun discharging. So, as that happens, the deceased is already out of the view. Ladies and gentlemen, no doubt you will examine the videos carefully and probably repeatedly. The Crown will suggest that, taking into account the videos, plus the evidence as to the angle of entry of the projectile into the body, plus the evidence of Mrs Rowe of how the robbery was progressing and so forth and of the scene itself, the Crown suggests that you can be quite satisfied that the deceased did not raise the replica pistol at the accused, or indeed at Mrs Rowe. Ladies and gentlemen, in my submission, in addition to the evidence that I have already mentioned, you will .... hear evidence from a police officer from the ballistics section to explain the workings of that Beretta pistol and you will hear from one or two other witnesses dealing briefly with the matters arising from the interview with the police. I anticipate also that we will visit the scene of the shooting, so you will get a better appreciation of the way in which the events unfolded. I turn then to say a word about the law relating to the charge of murder. You will understand that, at the end of trial, his Honour will direct you on all the legal issues with which you are concerned and, of course, you will take your directions from him. I won't attempt tQ.~over the field now, but just to alert you to one or two critical areas. In this trial, as in others, the Crown has the burden of proving the case, beyond reasonable doubt. The accused comes into this court with the presumption of innocence in his fayour. Ladies and gentlemen, murder is committed when a person unlawfully kills another, either intending to kill him, or cause grievous bodily harm to him, or being reckless as to the killing of him, or of the causing of grievous bodily harm. So it is unlawful killing plus one of those requisite intentions. You will recall that the accused, in his interview, in effect said ~This killing was lawful, because I acted in self-defence.' That is the thrust of what he said to the police. And you would know that the law does allow for force to be used in defence of oneself, or indeed of another, but the rules, understandably, are strict. The person using a force has to genuinely believe that the force he uses is necessary to defend himself and that it is reasonable. If that is the position, then he is not guilty of murder. But, if his belief as to the force being necessary and reasonable, if that belief, though genuine, is in fact wholly unreasonable when judged by others, including you, then although he is not guilty of murder, you would still have to go on to consider whether he is guilty of manslaughter. And I won't say any more about manslaughter, for the moment. Let's say you rejected self-defence, because you found that the deceased didn't threaten the accused with his replica pistol. The accused might yet have a defence to murder if his purpose was to apprehend, or arrest the fleeing robber. Citizens can use force in certain circumstances to apprehend law breakers. But again there are a few rules. You can't intentionally kill someone, or even be reckless as to killing them if your purpose is to arrest them. And that is.j-.~st common sense. So if you intentionally cause death, or you are reckless as to that and your purpose was only to arrest them to bring them to justice, then that is murder. Assuming your intention was less than that, then on the question of manslaughter, the spotlight again turns to the reasonableness of your belief as to the need for force and the amount of force. Ladies and gentlemen, it is easy to fall into the trap, when thinking about self-defence, to think that the accused has to prove that he acted in self-defence, or that he was effecting an arrest, or whatever the particular topic in mind is. But, in fact, the burden stays on the Crown to prove, beyond reasonable doubt, that the killing was unlawful. So, ladies and gentlemen, that might sound complicated, but it all comes down to common sense and, as I say, his Honour will direct you on it, at the appropriate time. But they are the questions that you might turn your mind to, as the evidence proceeds. This will be a fairly short trial, mainly because we are looking at events over a very few number of seconds. We anticipate that the trial will finish late this week. As you will appreciate from what I have said, the really .... contentious issues in the trial will be whether the 36 deceased, Dallis Milsom, turned back towards the console 37 and threatened anyone with the replica pistol. And also 38 what was in the accused's mind when he shot Milsom with that Beretta pistol. I think now, ladies and gentlemen, we can turn to the evidence. ADJOURNED 1 P.M. RESUMING 4.05 P.M. HIS HONOUR: EXHIBIT P8, HIS HONOUR: MS VANSTONE: EXHIBIT EXHIBIT EXHIBIT MS VANSTONE: 98 altogether, original video, monitor. So, still photographs of the original video, Exhibit P8. HIS HONOUR: the original video? MS VANSTONE: per second, in the important part of the events. EXHIBIT P12 JURY HANDED COPIES OF EXHIBIT P12 MS VANSTONE: mention it while those are being handed out. I understand that the defence agree that the pistol shot sound occurred within the second labelled~:13:07, on the videos. There are actually three photographs in the bundle that are being handed out now, which are of within that second.fl HIS HONOUR: MS VANSTONE: CONTINUED MS VANSTONE CALLS MARGARET TERESA ROWE EXAMINATION BY MS VANSTONE On 14 October 1995 were you working as a console operator at the Caltex Service Station at the corner of South Road and Richmond Road, Keswick. A Yes, I was. How long had you been working for that service station as at October last year, roughly. About four and a half years. On Saturday, 14 October what time did your duties start. They would have started in the afternoon. I can't recall, probably about 12 or so, or 2; it varies. At about 9 o'clock that evening were you working alone, that is there were no other employees working alongside you. Yes, I was alone. What were your duties. Just generally serving people as they came into the service station and stacking shelves and what have you. Where did you spend most of your time then. Behind the console. During that evening did someone you knew as Kingsley come in. Yes. Can you see Kingsley in court. Yes. That's the accused seated in the dock. That's right. Did you know his surname at that time. No, I didn't. As at October of last year how had it been that you had come to know him. Kingsley had been a regular customer at the service station for some time. Mow often would you see him. He would usually pop in every night although I wasn't on duty every night. He would pop in and have a cup of coffee with whoever was on duty unless, of course, he was on holiday or having a busy night and couldn't get there. So when you were on duty in the evening would you usually see him. I would usually see him. What did you understand he did for a living. I understood that he drove a tow truck. Would he be on duty, as it were, when he came in and had a cup of coffee with you. It would usually be near the end of his shift. Did he have a phone or a radio with him so he could be summoned if needed. That's right, yes, he did. What time of night did he generally come in. Generally it was about 11.30. 11.30 p.m. P.M. yes. On Saturday, 14 October what time did he come in. It was closer to 9, somewhere around 9, maybe quarter to. What did he do when he arrived. I think he just made himself a cup of coffee and just came back for a chat. Whereabouts would he have made that cup of coffee, is there somewhere he could do that. Yes, we have a Cafe bar at the back of the shop and we also have a kettle in the back room. I can't remember which one he used. On the wall behind you there are a couple of plans. Could I direct your attention to the one on your right. Do you recognise that as a floor plan of the service station. You can stand up if you need to. No, that's fine. Where were these areas where cups of coffee could be made. All along the back here we have a Cafe bar and out in the storeroom here there's a kitchen sink and we have a kettle there with spring water, so he may either have had coffee here or got the makings and gone out the back and made it with spring water. Q So you are saying he could have gone to that area marked Displays at the top of the plan. A That's right. Q Or alternatively he could have gone into that storeroom to t~e'right of the plan. A That's right. Q That is a storeroom primarily for staff. A Primarily it was for staff. Q Was his familiarity with you all sufficient that he could use it. A Yes. Q Did he drink his coffee with you that night. A Yes. Q Whereabouts were the two of you when he had his cup of coffee. A When he made his coffee it would have been about 9-ish I suppose and I was sitting here as close to this corner as I can and Kingsley sort of came down here and was sitting here. Q I just need to get those on transcript. Could you just point to the area where you were sitting. A I was sitting as close to this section here as I could. HIS HONOUR Q That's in the north-eastern corner of the part marked 'Staff.' Yes. Where was Kingsley. Kingsley would have been sitting at the office door. You are pointing to an area in the - Just here he would have been sitting. There's only room enough for a chair there, or maybe two. The door opening or whatever it is to the right of the area labelled 'Cigarettes,' is that right. Yes, but the door was closed at the time. M.T. ROWE XN Q Did you say there was a chair there. A Yes, I think there was a chair there. Q Were you sitting in a chair in your area. A Yes, I was. Q Do you remember what you talked about that evening. A I can remember saying to him that he was early because he didn't normally come in until much later and I can remember him saying it was a quiet night. It was a quiet night at the service station as well. Q By the way, was he driving his tow truck that night. A He was. Q Where was that left when he came into the service station. A He had it parked against the car wash. Q Do you see the plan on the left shows the service station site. A The car wash is more over here. HIS HONOUR Q The edge of the plan of Exhibit P1A. A He would fill up with gas generally, although I don't think he did that night, and he would always park his tow truck there so it was out of the way. Q Do you have many customers on a Saturday night at about 9 o'clock or so. A It was a very quiet night that night, I remember that. It's usually a lot busier than what it was. Q At about 9.12 or so did a person come in and rob you. A Yes. Q What was the first you knew of that, what did you first see. A Where I was sitting was behind a hot nut display and I sit there so that people can't see me. I was eating my tea at the time, I didn't want any customer coming into the shop seeing me eating my tea, but I had a sensation that someone was at the counter so I stood up to serve. Q Looking at photograph 17 of P2, does photo 17 show your console area. A Yes, it does. Is that as it was on that night. Yes. Can you see the hot nut display there. Yes. So you were sitting, in effect, behind that. Yes, right beside the drawers. Were you sitting on that red seated chair that we can see there. As far as I remember, yes. That's on rollers I think. Yes, it is. So you say you stood up to attend to this person. Yes. What did you see. I saw a man across the counter holding a knife. Me handed me a white plastic shopping bag similar to what you get in any supermarket. He said 'Put the money in the bag.' Do you remember which hand he had the knife in. No, I don't remember. Was he covered in any way, disguised at all. He wasn't disguised but he had a hat on, a cap. What did you respond. Initially I thought, you know, it was just a joke and I said 'What' and he said - I can remember the blade of the knife was up either one way or the other and he said 'I mean it' and he pointed the blade towards me. What sort of tone did he use when he said those things to you. He had a quiet voice really. He appeared to be calm when he was saying it. What did you do. I turned to face the till. If the counter is here, the till is here so I was sideways to him, and I remember it seemed to take me forever to work out how to open it, but I finally got it open. Because you were looking for a particular button. I was looking for the No Sale button which I press ten, fifteen times a day. You eventually found it. Yes, I did. Did you see or hear anything while you were searching for that button. No. He was just standing there as far as you knew. As far as I can recall. I was just aware of him being there. As I say, I was sideways turned and a lot of things were going through my mind, the size of the blade of the knife, it was a very big bladed knife. Were you aware of Kingsley at all during this period. Yes, I was aware of him. Where was he. He was exactly where I showed on the drawing still as far as I knew. I wasn't aware of him moving but he may well have, I don't know. If you go back to that photo 17, the till is there in front of us near the corner of the counter, isn't it. Yes. That's how it was at the time. That's right. When you pressed the No Sale button did the drawer open. Yes, it did. What did you do. I took out three $50 notes and I put them in the bag. What did you do with the bag then. I handed it to the person on the other side of the counter. Was he able to see the till drawer from where he was. Me would have been, yes. So you handed it over and what happened. As far as I can recall he turned to walk out. Was there some reason why you can't recall precisely. No. So many things were going through my mind at that time that, from my memory, that's what happened next, I think he turned and walked out. Didn't say anything further to you. Not that I can remember. When he turned and went out towards the door what did you do. I turned to phone the police. I tried to dial 11444 and I recall that I couldn't get through. I don't know if it was engaged or if it just wasn't connecting, but there was a problem, I remember that; maybe I was dialling the wrong number. How many times did you try. Once or twice. Did you use that phone that we can see to the left of photo 17. Yes. Is that one of those electronic phones. Yes. Does that make any noise when you press the numbers. Yes, it does. It makes a noise if you don't lift the receiver. Did you lift the receiver. I don't think I did. I can't be 100% on that. I don't think I lifted the receiver. Just to interrupt the flow for a moment, do you have any instructions or did you have at that time as to what.to do in case of a robber. Yes, we were instructed to hand over all the money and also not to look them in the eye because it can intimidate them. When you opened the till on that night what money was in it. There was a lot more than that, I can't be precise. There would have I suppose been a couple of hundred extra in there. Do you have any instructions about how to ring or what to do after a robbery. Yes, 11444. So you told the ladies and gentlemen about trying to get through on 11444. What happened next. Next I heard a shot and then I heard a scream. Then I realized it was me who was screaming. Q Before you heard that shot were you conscious of Kingsley moving from his position in the chair. A I was conscious of him being there. I can remember sort of feeling thankful that he was there because he would be able to helpme identify the person. Q But you weren't aware of him moving in any particular way. A I wasn't aware of him moving, no. Q What about the robber, his progress away from you. CONTINUED Can you describe how he moved. He walked quite quick, from memory. Did he say anything from the time he said 'I mean it' to the time that the shot was fired. I can't recall that, I don't think he did. If he did I didn't hear it. Just going back a step, when you were getting the notes Out of the till were you conscious of a robber being fidgety or anything like that. No, I wasn't. I was certainly conscious of him being there. I was just conscious of him being the~e-and thinking 'He can just throw that knife,' and I can remember thinking 'It will go straight through me, the blade will come out the back of me if he throws it.' But you weren't conscious of him speaking further to you. No, I wasn't conscious of that. Or looking at his watch or finger. No. And I think you said he seemed fairly calm. Did you get any impression, from smell or sight, as to whether he had been drinking alcohol at all. A. I didn't get the impression that he had been drinking, no. Q. Anything unusual about his mannerisms or anything like that. OBJECTION Mr David objects. QUESTION ALLOWED Can you estimate how long it was that the robber was standing there at the counter. It seemed to be, it was like it was in slow motion, it seemed to be forever. I could have sworn it would have taken me, you know, two minutes to find that 'no sale' button. Everything seemed to be going very slowly. So my concept of time would have been, you know, totally .... disorientated. Q. You said you heard a shot. A. Yes. What happened then. I heard a scream. Sorry, you did say that. Yes, then I realised it was me. And then. Then I think I looked back at the counter, or I continued to ring, I'm not sure, I'm not sure, all I remember is the next time I looked up at the counter he was back again, this time bleeding from the nose and head. I think he had a stain on his jumper· And did he say something. Yes, he said words to the effect 'Am I bleeding?' or 'Is this my blood?' or something like that. Did you see Kingsley at about this time. Yes. What was he doing. As I recall, Kingsley was shaking his head or acting in disbelief· And what did you do. I think, I said to Kingsley 'Take him into the bathroom, get some cold water on his forehead.' I don't know why I said it. Probably bleeding from the nose it is probably instinctive to put cold water on someone's forehead· And then what. Kingsley said to me 'Call an ambulance' and I can remember saying to him 'Take him into the bathroom and get some cold water on him.' And Kingsley very loudly saying to me 'Call an ambulance.' Was the robber saying anything through this. Not to my recollection· Still standing during this. As I recall, yes. What did you then do. I dialed triple O. And got on to someone· I got on to somebody, not realising of course that you have to ask for police, ambulance or what have you. I M.T. ROWE XN just, you know, shouted into the phone 'Get an ambulance She said 'Just calm down, we'll put you through.' Having given the appropriate directions, what did you do. I think, I think I went outside and got some paper towel from the driveway. Why. I was hoping to stem the flow of blood. As you went outside did you see some items near the doorway. Not as I went outside, as I came back in I did. What did you see. I saw a gun, and a knife and the bag. The same bag that you had handled earlier. Yes. The same knife that had been pointed at you earlier. Yes. What about the gun, had you seen that. The first time, the first time I had seen the gun was there laying on the floor and I was confused as to what it was doing there, I wasn't aware he had a gun. You went back inside and did you - I got down on the floor with him and I took off his hat and I told him it would be okay, that the ambulance was coming soon and he'd be okay. Was he saying anything. He was saying 'Help me' and moaning and I can't recall what I did with the paper towel but I think, I think I put it over his nose and then I think I thought 'Well, you know, I could be doing more harm than good, he might be drowning here.' I just didn't know what to do. And anyway did you comfort him as best you could. As best I could. Until the ambulance arrived. Yes, I don't know that I was much comfort but as best I could, yes. Q. You said that you couldn't remember hearing him say M.T. ROWE XN anything after 'I mean it' up until the time of the gunshot. I want to ask you this specifically, do you have any recollection of him calling out or saying 'Don't fuck with me.' I - I have actually no recollection of it although he could have said it. You have told the ladies and gentlemen that the knife was in one hand or the other, you don't know which, during the robbery. Do you know whether or not there was anything in the other hand. No, I don't know. You didn't notice anything. No, I didn't notice anything, I seemed to be fixated on this blade. After the gunshot at some stage did you see a weapon that Kingsley had. That Kingsley had? Yes. I can't recall seeing Kingsley's weapon. I ma~ have seen it, I just can't recall. Had you ever had any conversations with Kingsley about firearms. Not specifically about firearms. I do remember we had a display coming to the service station of cigarette lighters and there were hand grenades in guns and you know just novelty little things and I can remember he said something about, you know, taking one home for his collection, something like that, and that's about - I think I said to him 'Do you collect cigarette lighters, do you?' I somehow recall that from that conversation I understood that he collected guns. Had he ever shown you a gun. I don't recall him ever showing me a gun. And on this night then he hadn't shown you that one he had ..... A. He hadn't shown me, no, definitely not. And as at the time the robber came in how long do you think Kingsley had been in the service station. Well, just long enough to make himself a cup of coffee. I don't know, five minutes, I don't know really· CROSS-EXAMINATION BY MR DAVID On that night, as far as work was concerned, you were totally alone, is that right. Yes. Are there any shops in the area which are inhabited by people on a Saturday night. Not on a Saturday night, no. Or any premises that are inhabited by people. Not that late at night, no. Other than Kingsley coming in, before that had you been alone for some time before he came in. Are you asking me if there were any customers? Yes. I can't remember, I do remember it was a slow night. So a lot of the night you would have been quite alone, is that right. When you say a lot, a slow night at Keswick could be one customer every 10 minutes. When you were confronted with this man and when you'd given him the money and then he'd left, was it as he was leaving that you turned to attempt to dial the phone. Yes, it was. And when you were attempting to dial the phone were you standing do you think. A. I was standing, yes. In a sense turning away from the direction he was going and trying to muck around, mess around with the phone, is that right. A. That's right. And that was, although time is very difficult of course, that was before you heard the shot. Yes. So we have you dialing or attempting to dial the phone, .... approximately the same time as he is moving out, and then you hear a shot, is that right· Yes. Did you at any stage see or hear this man go around the corner and confront Kingsley. I didn't. And similarly you didn't hear any conversation, confrontation between he and Kingsley. No. But that's in the same category, that might have happened but - It could well have happened. But because of the movement of the events you._eouldn't tell us now one way or the other. I had a lot of things rushing through my head. I take it you didn't see this man as he was leaving the premises. As he was walking out the door? No, as he was near the door, for instance. No, I wouldn't have seen him, I would have been sideways on. Attending to the phone, is that right. Yes. So you can't help us one way or the other as to his manoeuvres as he was nearing the door. No. After this happened did Kingsley appear upset. Yes, he was very upset. He appeared concerned about this person's health because of what had happened. Absolutely. And he was determined that an ambulance come as quickly as possible. A. Absolutely, he was screaming at me. NO FURTHER QUESTIONS NO FURTHER QUESTIONS WITNESS RELEASED ..... MS VANSTONE: Can I just mention one more thing. There is a further admission that the witness Margaret Rowe telephoned triple O and asked for the attendance of That has been agreed by Mr David an ambulance at 9.13 p.m. So that is a time taken from the ambulance people. as he has told me. CONTINUED KC 2CC HIS HONOUR: MS VANSTONE: argument? HIS HONOUR: MS VANSTONE: Yes. And perhaps at 2.15 we could have that Or even at 2 o'clock, if it suits you? Whatever, as I say, there is no time pressure now, but whatever suits your Honour. HIS HONOUR: I think we ought to go on with the trial from the jury's point of view now and we will go on with the argument at 2.15. Are you happy with that, Mr David? MR DAVID: HIS HONOUR: Perhaps I can ask the jury just to wait, for a moment. There is one matter I want to raise. It occurred to me, at the time I gave my reasons in relation to the publication of that material, that the parties may wish me to suppress from publication my reasons in relation to the refusal to allow the video to be published, at this time, because the video may influence the jury. MR DAVID: That is my mistake. I should have been alerted to that, of course. HIS HONOUR: It occurred to me, at the time, and I forgot about it. MR DAVID: That should be in the category of some pre-trial argument or argument in the absence of the jury, which are normally suppressed and the media should be doubly aware that this is suppressed also. HIS HONOUR: I think the media ought to be able to publish my reason, except for my reason included in my reasons that publication be refused at the minute because of the likely effect on the jury. Are you happy with that? MR DAVID: I would rather the lot, because it adds some sort of mystery to the whole thing. Not from the jury's point of view. I HIS HONOUR: will hear you, though. We are talking conjecturally, but any MR DAVID: thought processes going through the jury as to why the media can't see all this we are better off without, in my submission. HIS HONOUR: It is getting remote, though, Mr David, I think. The only part that I would consider, subject to what you and Ms Vanstone say, and I suppose I have to call the media back for it, is whether I ought to suppress the fact that the publication of the video might influence the jury if they see it in circumstances outside the court. MR DAVID: I ask for the lot, but I think your Honour should do that as your Honour suggests, but I have nothing more to put. MS MEALOR: The Crown wouldn't agree that the part of your reasons in relation to the jury watching the video in the appropriate setting that that should be suppressed, but the Crown makes no submission as to the suppression of the rest of your Honour's reasons. HIS HONOUR: It is unlikely that the jury will hear any of that between now and 2 o'clock. I think I might hear the media at 2 o'clock in relation to that, because they are entitled, under s.69a to be heard. Do either party object to that? MS MEALOR: No. MR DAVID: No. HIS HONOUR: David, to suppress that. MR DAVID: HIS HONOUR: I will hear the applicaton at 2 o'clock. :: CONTINUED JURY ENTERS COURT 12.03 P.M. MS VANSTONE CALLS WAYNE ERIC ROBERTS EXAMINATION BY MS VANSTONE Q. A. Q. A. Q. SWORN What rank are you. First Class Constable. How long have you been in the police force. Six years. I take you to 14 October last year; during the evening of that day, were you on uniform mobile patrol. A. Yes. Q. With another officer. A. Yes. Q. Who was that. A. Probationary Constable Thomas. Q. During the evening did you receive a call on your radio to go to a service station at the corner of Richmond Road and South Road, Keswick. A. Yes. Q. About what time did you arrive there. A. About 9.15 p.m. Q. When you arrived, what was the scene that greeted you. A. I parked the police car on the northern side of the.. service station. I told Probationary Constable Thomas to stay in the car. I got out of the car and walked around to the western side of the service station. There was an old type almost vintage car parked, angle parked, reversed up to the western wall. As I walked around that, to towards the doorway, there was a trail of blood coming out of the doorway. When I went to walk in the doorway - Q. Just before we go inside, were there any other police officers there, any other patrols. A. No. Q. Was there an ambulance in attendance. A. No. Q. Any other people milling round outside. A. None that I saw. Q. You went inside. What did you see. A. As I walked in to the door, I saw a white plastic bag and that had money in it. There was a white handled knife on the floor, next to the white plastic bag. And what I thought to be a 44 colt auto, automatic pistol laying on the floor, as well. Q. Just near the door of the shop area. A. Inside the service station, near the door. Q. Did you see any people inside. A. When I looked towards the counter, I saw the female attendant and there was a man, Mr Foreman, I believe he was standing next to her, but about a metre off to the eastern side of her. Q. Do you see Mr Foreman today. A. Yes. WITNESS IDENTIFIES ACCUSED Q. Anyone else inside the service station shop. A. There was a person face down on the floor, would have been facing west, blood over most of the upper part of his body. He was trying to get up and trying to crawl. Q. Whereabouts was he. CONTINUED A. He would have been 30 or 60 cms north of the counter. Q. So close to the counter. A. Very close. Q. Did you then speak with someone. A. I contacted Communications to relay what I saw and ring an ambulance immediately. And the attendant walked out of the shop or started to walk out of the shop, or service station, sorry. I followed the attendant out and had a conversation with her. Q. That was Mrs Rowe, was it. A. Yes. Q. Then what did you do. A. Whilst I was talking to Mrs Rowe Mr Foreman walked out and I had a conversation with him. Q. At some stage did you make notes of this conversation. A. Yes, I did. Q. When did you do that. A. I believe I made it at about 9.25 p.m. on the roof of the police car. Q. So about ten minutes later. A. Yes. Q. And when you made the notes was the conversation fresh in your memory. A. Yes A Q A Q A Q PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Can you tell us then of the conversation with Mr Foreman and where it began and if you moved around during it, tell us that as well, please. A. Can I just clarify something? When I was talking to Mrs Rowe I was after where the armed hold-up - If you don't mind perhaps just answer my questions. So whereabouts were you when you spoke with Mr Foreman. Outside the door of the entrance to the service station. And who spoke first of the two of you. Mr Foreman. What did he say. 'The offender is lying on the floor.' What did you then do. OBJECTION HIS HONOUR: Mr David objects. I wonder if you would just confine yourself to the questions asked of you by Ms Vanstone and be precise, if you wouldn't mind, to the answers. will strike that answer out. I You walked inside, what did you do. I had a brief look around· What did Mr Foreman do when you walked inside· Mr Foreman walked slightly behind me. Came inside with you. Yes. And then what happened. I then said to Mr Foreman 'Is he the person who tried to rob this place?' To which Mr Foreman replied 'Yes.' I then walked back outside, near the doorway, and Mr Foreman followed· I then continued my conversation with Mr Foreman. What was said. I said 'Who shot him?' Me said 'I did. He pointed a gun at me and I shot him in the neck. I can't believe this, all over a replica plastic gun.' I said 'Will you just sit down and don't speak to anyone except a CIB members?' He said 'I was having a coffee. Can I have that?' I said 'Sorry, but we can't go inside because of the crime scene?' He said 'Okay·' I said 'Please don't speak to anyone, including police, unless they are CIB and especially not the media. you understand that?' He said 'Yes.' I said 'Okay, just sit there, don't get up or run away or we might think something is wrong·' And where did you sit him down. On the northern side of a parked vintage type car, :: f-~ against the wall of the service station. When I asked him not to run away he said 'Sure,' like he wouldn't. I then said 'Where is the gun?' He said 'It's inside unloaded in a cupboard.' Q. And did you go and find that weapon. A. No. Q. What did you then do. A. At this stage the ambulance had artended and some other police officers. I went and spoke to the ambulance offers and then to I believe it was the sergeant from Plympton patrols. Q. And how long did you stay at the scene. A. Maybe half an hour. Q. And during that time was crime scene tape placed around the front of the service station and the scene protected, so far as could be done. A. Yes. NO CROSS-EXAMINATION NO FURTHER QUESTIONS WITNESS RELEASED 1 JURY NOT PRESENT HIS HONOUR: 10 seeking access to the video tapes and the photographic material. application? MS VANSTONE: MR DAVID: HIS HONOUR: Have counsel seen that I will leave it for counsel to read and then to raise it in due course. MS VANSTONE: If we get to the stage this a~e.rnoon where Mrs Rowe is part finished, I wondered whether we could perhaps sit on. I understand she has a sick mother. This is the first I have learned of it. I don't know how serious it is, but in addition to that, I think it would help the jury if we heard at least her evidence-in-chief before the view. I am happy. How about you? Not a problem. I will deal with that letter when counsel have had a chance of reading it. in. HIS HONOUR: MR DAVID: HIS HONOUR: Bring the jury JURY RETURNS TO COURTROOM 2.17 P.M. MS VANSTONE CALLS BRIAN JOHN KAY POLICE OFFICER EXAMINATION BY MS VANSTONE SWORN Where are you stationed. Crime Drafting Section, Central Police Headquarters, Adelaide. Part of my daily duties is to attend alleged scenes of crimes, make sketches, take measurements and at a later date draw scale plans. Are those for use in courts. Yes. I think you have been doing that for many years. Yes, I have. In relation to the matter before the court, did you go to the Caltex Service Station at 409 South Road, Keswick on 20 October last year. Yes. What did you do there. Took measurements, made a sketch and then later drew two scale plans. The first of those was what. One being a portion of the service station itself internally. The inside of the shop area of the service station. Yes, that's correct. Perhaps we could deal with that one first. to scale. Yes, a scale of 1:25. Do you have copy of that for the jury. Yes, I have got some reduced copies. MR DAVID: I have seen those, there's to those being given to the jury. The jury will note the scale at the bottom reduced copies is not to the exact scale of original, therefore it's been obliterated. Plan drawn by Brian Kay tendered by Ms Vanstone. Admitted. Just while they are being distributed, if the jury want to work out measurements from your plan, they should then use the original, not the reduced copies, is that the thrust of what you have just said. Yes, that's correct. They can I think work out their own measurements from the plan because it's the scale you mentioned. Yes. Do you have any notes that you wish to refer to in addition to your plan or not. A I may have. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING. Looking at Exhibit P1, is this service station on a corner. Yes, the corner of Richmond Road and South Road. Which corner is it on. On the south-eastern corner. North is at the top of the plan. Yes. Which you have drawn. Yes. You have marked a number of objects within the shop area, displays, freezers and so forth .and you have correctly done that. Yes. Is there only one entrance door for customers into the area. Yes, where it's marked 'Entrance.' How wide is that opening. Approximately 1 metre. The console area is down to the bottom I think and marked as an area 'Staff.' .... Yes. How big is that staff area. Including the counter or just the - Perhaps just the standing area itself first. 1.85 metres by 1.2 metres. And the counter, that's the one immediately adjacent to the area marked 'Staff' Yes, just to the north of the word 'Staff' is .44 of a metre wide and the one further north of that which is a bit higher is approximately .5 of a metre, half a metre. How high is that first section of counter. .79. As you have marked. 79 centimetres high, yes. That abuts an area you have marked 'Counter.' Yes, which is slightly higher again, 1.12 metres high. So the console operator has a desk type area around him or her. Yes. And then a higher counter separating customers. That's correct. HIS HONOUR Is the height of that counter measured from the floor or measured from the raised section marked .16 millimetres and 'Staff.' From the floor. On the left-hand side there's a display that you have marked going along the length of the shop. Yes. Could you give us the measurement of that display area including the square at the top marked 'Water.' Approximately 5.85 metres. And the width of that. .62 metres. I suppose the height of it varied depending on what was placed there, did it. Yes, it did. What was there at that area marked 'Water', distilled water. Yes. Q You can see there's a diagonal line marked from within that square labelled 'Water' going back to the counter. Could you give us the measurement of the north-eastern corner of the water square going back to the north-eastern corner of the counter which is 1.12 high. A Approximately 6 and a half metres. Q Could you just point to the jury, make sure we know where' you have taken that from. A From that point to this point of the counter. HIS HONOUR That's in a direct line in the unit marked 'Di~p!ay.' Yes. Could I take you to the display marked 'Minties.' Could you describe what that was. A cardboard display with Minties in cardboard cartons. Did it have a cardboard back on it with some art work. Yes. Do you know how high that was. Approximately 1.75 metres high. The display that's immediately to the south of it, what was that. This particular one? Yes. Just other fixtures or confectionery within the perimeter. Did you measure the height of it. No, I did not. It was lower than the Minties carton. If we go down to the south a bit more there's a chips display. Yes. Did you measure the height of that. 1.6 high. Then we go down a bit further, there's a large rectangle marked 'Display', what was that. That was another confectionery metal stand. That was 1.17 high. C AP 1J north-south and between the display closer to the left of the plan and the Minties and other displays in the centre of the shop. Approximately .92 of a metre for the large rectangular display and to the chips display was .76. The one Plan of the service station site immediately above that display .7, and then to the Minties .84. Did I ask you about the height of the water display. No, you did not. I haven't been requested to make any note of that either, I'm afraid. Can we go back down closer to the staff area.~ could you give us the measurement of the opening between the 1.12 high counter and the other side of that doorway. That one from there across to that wall or just the door? Just the opening that you can walk through, so to the door. To the actual door it's .84. You said you drew another scale plan as well. What does that show. It shows the same internal area with the service bay area further to the north and the main sight area to the north-west to the Richmond and South Road intersection. Also I have reduced copies of that as well. EXHIBIT P1A tendered by Ms Vanstone. Admitted. You have marked various areas on that as well and you have done that appropriately. There's a dotted line running from near the entrance off Q to the north-west and then more north. represent. That was the dotted line on the ground, a red marking indicated to me by Mr Van Dijk. Q Did you understand that that had been a blood trail ..... Yes. CROSS-EXAMINATION BY MR DAVID Q Just on the last plan, the one of the general site, obviously you will be able to see this tomorrow, but am I correct in saying that this service station is in the middle of what I might call a light industrial area. A Yes. Q There's no, what I might call, private housing in the immediate vicinity. A Not that I recall, no. Q There's no buildings of the nature where you expect people to be, like shops and things like that. A There is a car yard on the north-western corner. Q That's over Richmond Road and over South Road. A That's correct, yes. Q Not open on Saturday nights though I take it. A No. Q So, in fact, as far as inhabitants are concerned, this is quite a deserted area where this service station is. A. It would be, yes.MS VANSTONE CALLS REX WILLIAM DE LAINE EXAMINATION BY MS VANSTONE SWORN What rank are you. Senior Constable of police. Where are you stationed. I am stationed at the Technical Services Ballistics Section Thebarton Police Barracks. Q. What is the function of the Ballistics Section. A. The function of the Ballistics Section is to examine firearms and ammunition on a daily basis and. l~-~so to attend scenes of crime where firearms may have been used in the commission. Q. How many members are there in that section. A. We now have five members. Four police officers and one public servant. Q. How long have you been in that section. A. Since September of 1993. Q. What sort of training have you received. A. I have received ongoing training by members within the section and peer evaluation, or constant peer evaluation, besides the basic Crime Scene Examiners Course, which is part of admittance into that Technical Services branch and also a training course, which is conducted along the lines of the International Firearms and Tool Marks Examiners Association. Q. As a result of your training, have you achieved a degree of expertise in examination and evaluation of various firearms and ammunition. A. Yes, I have. In relation to the matter before the court, do you have Q. notes that you would like to refer to. A. Yes, I do. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. Did you go to the Caltex Service Station in issue at about 10.40 p.m., on Saturday, 14 October. A. Yes, I did. Q. I think there were a number of police already in attendance. Upon my arrival, yes, there was. Including Sergeant Van Dijk, the last witness. That's correct, yes. Did you see a firearm and a knife at the premises. Yes, I did. Whereabouts was the firearm. And it may help you to refer to the photographs, Exhibit P2, now before you. Photo 7 may help. Yes, the knife was actually located inside the doorway on entry to the service station area, or the.customer area of the service station itself and within the western aisle at that location. That is the knife. Yes, that's right. What is Adjacent to that is a weapon of some sort. that. It is not actually classified as a weapon. It is a replica of a firearm. Did you collect that. Yes, I did. Going to photo 17, is there a firearm visible there. Yes, the firearm appears in the lower right-hand corner of photograph No.17, adjacent to a foam or polystyrene coffee cup at the corner of the counter at that location. What sort of firearm was that. We will get to the detail later, but just the brand name. That was a Beretta semi automatic pistol. And next to it is a magazine we have heard. That's correct, yes. To suit that weapon. It does, yes. Did you collect that as well. I did. Q. Did you find a cartridge case somewhere in the premises. Whereabouts was that. I am not sure that you will find a photograph that shows it. Perhaps you could describe it by reference to the plan behind you if it is not in the photographs. No, perhaps with the assistance of photograph 22, it shows the office area at the left-hand side of the photograph, where I am standing holding the string line in that position, which appears in this position (INDICATES), as indicated on the plan. The spent cartridge case was on the floor in that approximate location. HIS HONOUR Q. That is immediately east of the area marked 'Staff' at the southern end of the area. Sorry, I didn't quite catch that one. The position to which you are presently referring is east of the area marked 'Staff' on the map Exhibit P1. Yes, that's correct, yes. Just the one cartridge case there· Yes, there was. Did you make a search of the whole premises for other cartridge cases· A. Yes, I did. Q. There were none. A. None that I located, no. Q. While we are on this topic, did you have a look at the various displays and placards and so forth in the shop, to see if you could find anywhere where a projectile had passed. A. Yes, I did. Q. Was there any such damage. A. No, there was not. Q. Did that magazine contain any live rounds. A. Yes, it contained five live rounds of ammunition· Q. What about the weapon, itself, did that have any live rounds in it. A. No, it did not. Q. Looking at the items, now before you, firstly, can you identify the Beretta pistol that you found that night in that position. A. Yes, I can. Q. Does it still have with it its magazine. A. Yes, it does. Q. Does it still have the ammunition, as well. A. Yes, there are still five live rounds of ammunition, within the plastic bag, with the firearm. Q. Separated, though, from the magazine. A. Yes, they are. MS VANSTONE: I don't think there is any need. to tender the ammunition. HIS HONOUR: No need, no. No, but I was planning to tender the pistol and its magazine, as Exhibit P3, if that is convenient? No objection· And the live rounds can either be marked for identification, but perhaps even better, they can stay with Mr De Laine and, if anyone wants them, at any stage, Mr De Laine can bring them back. Magazine and Beretta pistol tendered by EXHIBIT P3 Ms Vanstone. Admitted. HIS HONOUR Can you take away the ammunition and keep it for safekeeping. I will come back to that firearm, but do you also produce the replica pistol that you found on the floor near the doorway. A. Yes, I do. EXHIBIT P4 Replica pistol tendered by Ms Vanstone. Admitted· Q. Do you also produce the knife, which you found in a similar position, near the doorway. A. Yes, I do. Knife tendered by Ms Vanstone. EXHIBIT P5 Admitted. Do you want these shown to the jury? I was going to go back to them now and go through them, one by one, if that is convenient? HIS HONOUR: Of course. Going first to the Beretta pistol, Exhibit P3, now before you. Yes. Could you tell us what are the characteristics of that weapon. I will get to the operation of it, in.~a-minute but perhaps just tell us the characteristics, first. Yes, the Beretta is a 25 calibre or .25 thou of an inch calibre semi automatic single action pistol. What does semi automatic mean. Semi automatic describes the action of the pistol, which describes the process by which an empty case, or the previously fired empty case is extracted and ejected from the firearm and a fresh round is forced from the magazine into the chamber of the firearm ready for the next application of the trigger, which will discharge that fresh round. However, to load the firearm initially, the action must be manually cocked to engage the hammer and the action in the beginning of the process. I will get to that. How old is the weapon, or what era of weapon is it. This particular weapon I have not dated, but the 25 calibre originated approximately around the turn of the century, 1900s. Q. Where was the manufactured. This weapon was manufactured in the United States of America. MS VANSTONE: I wonder whether it might be convenient if Mr De Laine moved closer to the jury so that he can .... demonstrate the operation of the weapon? HIS HONOUR: No problem with that, Mr David? MR DAVID: No. HIS HONOUR Q. Come over close to the jury. To load the firearm, firstly, the ammunition is fully loaded with eight rounds of ammunition, or it has a capacity of eight rounds of ammunition· It must be inserted into the base, or the bottom of the pistol grip and pushed until an audible click is heard, as such (INDICATES). Then a live round must be loaded into the firing action, or the chamber of the firearm, simply by pulling the cocking slide to the rear. It is a two-handed operation. under its own spring loading. In this configuration, the firearm is ready to fire. However, if it is required that the firearm is desired to be carried with a live round in the chamber, there is a half-cocking hammer safety mechanism which prevents the weapon being fired in that configuration, with the live round in the chamber. Should the weapon require to be maintained in the ready to fire position, with the hammer in the cocked position, that is, fully pulled to the rearwards position, there is a second safety catch, which is a hinged lever on the right-hand side, which is operated manually by the thumb. That can be engaged, once again preventing the weapon from being fired in that configuration. And to simply fire or discharge that live round from that configuration, it is a matter of releasing that safety catch and thereby being able to fire the weapon, as such. Or, alternatively, if the hammer is in the half-cocked safety configuration, it may simply be pulled to the rear and, in that configuration, once again, it is ready to fire. Are there any sights on this weapon· Yes, there are sights on the weapon· They are nonadjustable, fixed sights on an open sight design. Where are they. They consist of a forward sight (INDICATES) and a rear sight (INDICATES), which are both parts of the actual slide mechanism on the firearm, itself· They are And releasing it to s!~e. forward .... nonadjustable and they are fixed. How do you use them. It is just simply a matter of lining the eyes, or lining the front sight into the notch, or the recess of the rear sights and aiming the weapon using the alignment of it. So, you lift it up to eye level, do you. That's correct, yes. Could you demonstrate how you would do that. It is an action of either being held with two hands, or It is an action of either being held with two hands, or aligning whatever eye the operator uses aligning the front sight, so that the tip appears level with the top of the rear sight. Just going back to the loading process, does the magazine have to be full, that is, have its full eight rounds in it, before it will operate. No, it does not. So, you could load it even with one. That's correct, yes. Is there any way of putting a live round into the weapon, without using the magazine. There is a cleaning mechanism, which entails a release lever and possibly - the purpose of the configuration of the gun in this position is mainly for cleaning the barrel after operational use. Possibly a live round could be inserted into the barrel in that position and clicked back into place· But the common - But the weapon would still be required to be cocked in that position to discharge that round. But I understand from what you say the sensible way to load it is to use the magazine. That's correct, yes. Just going through that process again, assuming you have ..... got your magazine with some rounds in it, how do you load it. Could you just reiterate what you said, assuming there are no safety catches on. Without re-explaining or explaining again the safety mechanisms, the magazine is either partially or fully loaded. It must be inserted into the base of the pistol grip of the firearm. Pushed home, until an audible click is heard, as such (INDICATES). And then the slide of the firearm, which appears at the bottom, must be operated with the second hand, pulled to the rear and engaging a live around from the top of the magazine, which can be seen through the action, and releasing the slide under its own spring to slide forward thereby forcing a live round from the magazine into t.h~chamber of the firearm. Q. So, it is now ready. A. The firearm is now ready to fire in that configuration. CONTINUED You pull the trigger and what then happens in terms of loading. The firearm is already loaded but on pulling the trigger in this configuration the hammer will release, engage the firing pin which impacts with the primer on the rear of the cartridge case and subsequently discharges the projectile from that cartridge case. From there the blow back system or the action of the firearm itself will commence cycle. The slide will slide to the rear of the firearm under its own pressures, in the same processing extracting the empty cartridge cas~....~_of the previously fired round, ejecting that and also loading, or upon the commencing of the forward slide once again will engage another round from the magazine and force that forward into the chamber of the firearm. the semi-automatic process. The old cartridge case, where will that go. That will be ejected from the firearm. Just drop down, shoot away somewhere. A It will shoot some distance from the firearm, You pull the trigger and it's automatically reloaded, you have to pull it again if you want to shoot again. A That's correct, yes. Over what distance would you expect to achieve some degree of accuracy for this weapon. OBJECTION Mr David objects on the ground it needs some qualification, especially a 'turn of the century weapon.' Let me approach this this way. Did you do some tests on this particular weapon to determine whether it was accurate over relatively short distances. A Yes, I did. We will come to those. Generally speaking, would this be considered to be an accurate weapon. Mr David objects ...... This particular gun or this style of OBJECTION HIS HONOUR: gun? MS VANSTONE: This length of barrel with this MR DAVID: aspect of it. HIS HONOUR: witness box? MS VANSTONE: on that. ammunition in it I am speaking of. I am only speaking generally compared, say, with a 22 rifle. I am concerned about the expertise Do you want Mr De Laine back in the Yes. Perhaps I can ask another question Do you feel that you have experience and qualifications that enables you to comment generally on the ~._lative accuracy of a pistol such as the one you have before you as against a 22 rifle. A Yes, I do. Q Are there certain general statements that can be made about that comparison. A Yes. Q Where have you got that expertise from. A The everyday experience of this section entails the handling of many and varied firearms including pistols both in this 'shape and form and also in rifles in 22 form. It is also an integral part of our training as well as everyday usage. HIS HONOUR Q You have made a study of particular firearms, have you. A Of their actions and their designs, yes. That is an integral part of the training program. Q Have you done reading in relation to those matters. A Yes, I have. Q Is there a body of information which is available to read in relation to the function of different types of firearms. A We have our own library within the section at the Thebarton Police Barracks, yes, we do. Does the Ballistics Section examine all firearms that are used in the course of alleged crime in this State. Yes, we do. Q So far as they are covered. Does that involve testing. It involves testing the firearms for safety as well as function tests and where the needs be for an accuracy test. HIS MONOUR: Mr David? MR DAVID: I am just concerned about this particular weapon because of the unusual nature. I think he said it's a 'turn of the century weapon.' HIS HONOUR: I think the question is at the moment, and Ms Vanstone will correct me, have you studied or have you compared guns of this kind with 22 rifles. That's a very general question. that was objectionable. MR DAVID: It may not be relevant either anyway. That's the first question at the moment? Yes. Could I perhaps clarify one point there. The point 25 ammunition and design of the firearm is turn of the century. I think if I commented or recollect accurately I did not date this particular weapon which is a commemorative weapon and would not be turn of the century manufacture. What do you mean a commemorative weapon. This would be a limited edition and a .special manufacture and a much more recent product. HIS HONOUR Q Did you use the reference 'turn of the century' to date the earliest time when guns of this type were manufactured. That's correct, yes, but the exact date of production of this particular firearm I would not be aware of. Can I ask my question now? Yes. MS VANSTONE: HIS HONOUR: How does the accuracy of that weapon that you have at present compare in general terms with, for example, a 22 rifle. They are certainly not as accurate, mainly limited because of their short barrel length. Q You are saying that the Beretta pistol is not as accurate as the rifle. A That's correct, yes, and the compact size. H I S HONOUR As a generality, is a pistol less accurate than a rifle. Again because the barrel is shorter or primarily because the barrel is shorter, the length of which has a stabilizing effect on the projectile itself, and also the propellants within the cartridge case have a much longer time to combust, generating more pressures within the barrel in the chamber, again which stabilizes the projectile itself in flight and also over the length of the shorter barrels there is less of a plane of aiming between the sights. Is it also the case that a rifle barrel is 'rifle' which makes the projectile more accurate. It, is, but so are the pistols. I think you said you did conduct some tests on this particular weapon over short distances to measure etc accuracy, if you like. Yes, I did. How did you do that. I aimed the weapon or the firearm at cardboard targets at distances of 5 metres and 10 metres. You fired a certain number of rounds, did you. Yes, I fired five rounds on each occasion at each target. How were you positioned when you fired those rounds. I was in a supported position deliberately aiming the firearm at those targets, not in a standing position. How were you positioned. 34 I was positioned lying on a ground sheet and supporting .... my wrists and hands on a stand aiming at the targets. So what were you trying to measure, in effect. I was attempting to measure the accuracy of the firearm MR DAVID: There was a two relatively true to the point of impact. to three centimetre variation. Did you conduct a similar test over any other distance. No, I did not. Target over 5 metres tendered by Ms Vanstone. Admitted. Target over 10 metres tendered by Ms Vanstone. Admitted. Could we just go back to the replica pistol, P4. Is that a replica of a particular type of weapon which is available. Yes, it is. What is it. It's a replica of a semi-automatic Smith & Wesson model 59 pistol. What's that replica made of, can you tell. It's made out of plastic. Does that take any'ammunition or operate in any way similar to the way the original operates. Yes, it is very, very remotely similar in respect that it has a magazine which slides into the base of the pistol grip of the firearm. It clicks into position and and audible click can be heard and requires cocking of the firearm in a similar method to the original semi- automatic pistol and the release of the slide to engage the ammunition. It does not take the ammunition of the original. This is substituted by a plastic pellet which is ejected or fired from the firearm by means of a captivated spring. What sort of pellet does it take. A plastic pellet of three to four millimetres in diameter. What shape. Spherical. There's some wire I think on the butt of that pistol, .... isn't there. Yes, there is, with blue insulation. HIS HONOUR: Can you see that, ladies and gentlemen? Is that something that would have been there when purchased or is that something that someone has added. No, this has been added to it after market and has been adhered to the trigger mechanism and side of the pistol grip by black electrical insulation tape. Q Did that have any of these plastic pellets in it when you found it. A No, it did not. MS VANSTONE: Perhaps it would be convenient now to show the various exhibits to the jury. EXHIBITS SHOWN TO JURY Just a couple of further matters about the Beretta pistol. I should have asked you whether the weapon was operating correctly at all times when you handled it. A Yes, I experienced no difficulty with the operation of the firearm. Q Did you measure the pressure which was required in order to pull the trigger. A Yes~ I did. Q How did you do that. A The trigger is weighted with a series of standardised weights. MR DAVID:" Might I interrupt, it might shortcut my learned friend. There's no suggestion this was an accidental shooting, if that might help my learned friend. MS VANSTONE: I would still like to persist with the question although I am grateful to my friend's information. Could you explain. A series of weights are attached to the trigger and that measurement required to discharge the firearm in that configuration is capable of being measured. In this instance it was - if I can verify with my notes - the trigger pressure required 2.3 kilograms of weight to be attached to the trigger before it could discharge the firearm. CONTINUED Q. I think you gave a different measurement in the statement you made. A. Yes, I did. Q. How was that. A. Unfortunately that was shown as 1.7 kgs of pressure, which was my error, and it was typographical. Q. Moving back to the scene, did you take various measurements of the height of some of the displays within the service station area. A. Yes, I did. Q. In particular did you take a measurement, or_S.everal measurements in relation to the water display close to the door. A. Yes, I did. Q. We have heard that that part of the display was 55 cms from east to west. A. That's correct the height of the shelving at that location was 1.17 ms in height. Q. So if someone was standing beyond that, or that is to the north of that water display, then parts of their body would not be visible from say the staff area, would that be right. A. That's correct, yes. Q. Because of that display. A. Yes. Q. Did you see the video camera that was on the northern ceiling of the service station area. A. Yes, I did. Q. Did you calculate, by reference to photographs, plans, et cetera, the extremity of the view that that camera had. A. Yes, I did. Q. And I think that you had a copy of Mr Kay's plan, P1, available to you and you have drawn a line to indicate where the site of the camera runs out, if you like. A. Yes, I have. Q. And do you produce that. A. Yes, I can. Copy of Exhibit P1, showing the range of vision of the video camera, tendered by Ms Vanstone. SHOWN TO JURY CROSS-EXAMINATION BY MR DAVID Firstly in relation to the Beretta, as you described it, would an accurate description be what you might call a collector's item. Yes, I described it as being of limited edition or limited production and as such it would be a collector's item· When you load it by putting the magazine ready to shoot one bullet, I think from what you have said after you have shot one bullet you can immediately fire another. By a second application of the trigger, yes, that is correct· You don't have to reload it all over again. No, it requires one manual loading, or feeding, from the magazine of a round into the chamber· The second loading action, if you like to determine it as such, is automatic· Just a pulling of the trigger. That's correct. So if a person had that gun and wanted to fire a number of shots quickly to make sure he killed someone, for instance, he can do that, he can fire one, two, three, four. That's correct, on separate applications of the trigger, yes. Q. In relation to the replica pistol, that is a replica of a particular make of pistol, is that right· Yes, it is. It is not just a fancy gun from a toy shop which is quite meaningless, it is the remaking of a particular type of gun. That's correct, it is a replica of a Smith and Wesson model 39 semiautomatic pistol. Q. Is it visually realistic. Yes, it is. From a distance of 5 or 6 metres, is it the sort of reproduction which looks very accurate. Yes, it is of the same design and approximately the same proportional size. And of course black, which they are produced in. That's correct, yes. And it is on closer handling that you can tell it is only a replica, is that right. Very close. Well, upon handling it becomes obvious that it is a replica, yes,-but it would not be identified as. being a replica unless from a very close proximity visually. And when you say that I mean almost right up close to you so you could have a very close look, is that right. Yes, that's correct. Five or six metres away you wouldn't have a hope of identifying it as a replica, would you. None at all. Let's talk about the Smith and Wesson. We have talked about the Beretta. Is that a powerful gun. It is. How many bullets does it hold so you can shoot them in one burst, one after the other, without reloading. I didn't verify how many the magazine capacity of the original model 39 was capable of holding. Would 16 be right. I don't want you to guess. I don't have that information at hand, I would not answer. Would that sound a ridiculous amount to suggest. It may be in the proximity. I know there are semiautomatics that can contain 15 and with extended magazine 16 to 17. It is not unrealistic but I cannot verify that particular number. But high teens at least. Yes, that's correct. And what about the power of that weapon. A. That particular weapon I think is a 9 mm in calibre, which is a considerable powerful weapon, yes. Q. One of the more powerful types of pistol· A. I would describe it as a mid range calibre and 9 mm is indeed the minimum allowable calibre under the International Practical Shooting Confederation of Regulations. Q. Can you generalise, if you can't please say so, about the accuracy of that type of pistol. A. The 9 mm round is used by our specialist staff or Star Force personnel and is being reviewed for gen~al police usage in the future and it is a generally accurate round of ammunition. Q. When you say used by the Star Force, that is in the field, is it. A. That's correct, yes. Q. When there is a seige on or something like that. A. It is part of their supply calibre of ammunition for weapons used by them daily· HIS HONOUR Q. It is a weapon of preference for the Star Force· A. Yes, it is. Because of its power, its accuracy, that sort of thing· And economics of ammunition supply and suitability of that particular design of weapon that they use. Q. Would you agree with me that the Beretta, the small one, the collector's piece, would be the least powerful Pistol you can buy commercially. The Beretta and the .22 semiautomatic pistol would be about of the same equivalent power range. The particular type of ammunition is not particularly high in energy delivery. It is relatively accurate over a short distance and the .22 short ammunition has the same ..... performance capabilities relatively compared to the .25. So it is right down the bottom of the scale, is it. Yes, it is. You couldn't compare it, as far as power is concerned, with the Smith and Wesson, I take it. A. I could but I don't have that ballistics - I ask the question not in the technical term but there is a big difference between the two as far as power is concerned. A. Generally, yes. NO RE-EXAMINATION NO FURTHER QUESTIONS WITNESS RELEASED MS VANSTONE: Real time copy of security vi~eo. tendered by Ms Vanstone. Admitted. Real time copy of the video in close-up tendered by Ms Vanstone. Admitted. Real time copy of original video tendered by Ms Vanstone. Admitted. Mr David and I have discussed this obviously and I understand that he is prepared to make this admission as to the original video, P8, that the video P8 was recorded automatically at the scene and shows a view of the events surrounding the shooting. It was programmed to record the events in faster than real time. It is not possible to enhance it visually or audibly. The lapse of time demonstrated numerically on it is accurate. MR DAVID: And that can be an agreed series of facts pursuant to the Evidence Act. HIS HONOUR: Ladies and gentlemen, you have heard what Ms Vanstone has said then and what Mr David has agreed with her in relation to that. That you can take to be an agreed fact as to how the video camera operated on the night. It is to be evidence in the trial as if it was evidence in the trial and you will take it as being a true fact that the video camera operated in the manner described by Ms Vanstone. to you later. MS VANSTONE: clarification. The actual time shown on the video isn't 38 JMg 1N necessarily true time because whoever set it might have set it incorrectly, but it is the lapse of time which is correct. HIS HONOUR: The starting time might be wrong but the amount of time that transpired over the video is correct. MS VANSTONE: Yes, when a second ticks over, that was a second. And I wonder whether it would be now convenient to play each of those videos, perhaps in the order in which they have been tendered, 8 through to 11. ADJOURNED 3.55 P.M MS VANSTONE CALLS ANDREW JOHN HODGE EXAMINATION BY MS VANSTONE Q. In October last year, were you living at Albert Street, Richmond. A. Yes. Q. Did you live there with another man. A. Yes. Q. In October last year, did you know Mr Milsom, the deceased. Yes. .... I In October did he come and stay with you. Yes. Had he come from the Riverland. Yes. Was he moving to Adelaide· Yes. Did he stay with you, while he was making other arrangements. Yes. I take you to Saturday, 14 October 1995; did you go out that night, at about 6.15· Yes. Leaving Mr Milsom behind. Yes. In your household, at that time, was there a replica pistol. Yes. Looking at Exhibit P4, now before you, is that the replica pistol that was in your home· Yes, it is. Who did it belong to. My flatmate· Do you know whereabouts it was, at the time you went out on that evening. As far as I can recall, it was on the desk in what we call the stereo room, which is a spare bedroom. Lying there. A.J. HODGE XN A. Yes. Q. When you went out, did your flatmate go with you. A. Yes. Q. Looking at Exhibit P5, the knife, now before you, do you recognise that knife. A. Yes. Q. Does that belong to you, or was it in the household on that evening. A. Yes, it was, yes. Q. Whereabouts was that. A. It was in the kitchen, in a top drawer of a b.u~fet thing, kind of. Q. Was Mr Milsom short of money, when he arrived. A. As far as I know, yes. Q. How far from the corner of Richmond Road and South Road did you live. A. I would say it would be about a ten minute walk. Q. Did Mr Milsom have any transport. A. No. Q. Did he come down from the Riverland on the bus. A. Yes. NO CROSS-EXAMINATION NO FURTHER QUESTIONS Did you go with him to the Caltex Service Station on that evening. Yes. Did you accompany him during many of his activities that evening. Yes, I did. Including going to the Adelaide police headquarters for a conversation with the accused. Yes. After that conversation at police headquarters had concluded, did the three of you return to the service station. Yes, we did. Whilst you were there, did you have a conversation with the accused at which Mr Brennan was not present. Yes. Did you make notes of that. Yes, I did. At what stage. Later that shift, that same shift. About how much time had elapsed. Approximately two hours to three hours. When you made the notes, was the conversation fresh in your memory. Yes, like that (INDICATES). And he continued 'If we don't shoot within that group we are disappointed a bit.' I said 'You may as well get out now, Kingsley, I think they have gone. You can go if you like.' I will speak to Margaret. He said 'All right. okay?' And I said 'Sure.' And then the conversation ended. And then did he go off in his tow truck. No, he walked over to the shop of the service..Station and Mr Foreman approached Margaret, the console operator, who was still at the scene and he had a conversation with people, with her. MS VANSTONE CALLS EDWARD DONALD WARREN EXAMINATION BY MS VANSTONE SWORN What rank are you. Senior Sergeant. Where are you stationed. Firearm Section. Broadly speaking, what is the function of the Firearm Section. A. It is to maintain and compile the records under the Firearms Act and the registers required by the~-Firearms Act. Q. They are the registers of firearms in this State. A. They are firearms licences and registered firearms. Q. Have you made a number of searches in the records of the section in relation to Kingsley Foreman. A. I have. Q. Do you have notes or lists or anything of that sort that you would like to refer to in giving evidence. A. I do, yes. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING MR DAVID: That is under the umbrella of my previous objection. Dealing first with any firearms licences that Mr Foreman may have had; did he have one or more licences. He had a firearms licence, yes. With various classes. Yes. When did he first apply for a firearms licence. He first applied for a firearms licence on 29 March 1982. That was granted, I think. Yes. Has he had a firearms licence since that time. Yes. When it was first granted, did it have particular classes. Yes, it had classes A, B and D. What is class A. Class A, at that time - I mention that, because the law did change on 1 September 1993 - the class, at that time, included air rifles, air guns and .22 rim-fire rifles. All .22 rim-fire rifles. And class B, what was that, at that time. Class B was all shotguns. And D. Any other firearm which was not classified. What does that mean. Mainly centre-fire rifles and other weapons, or firearms such as power heads and such like. What is a power head. It is for use under water against sharks and so on. A couple of years later, did he apply to add another class to his licenCe. Yes, he did. When was that. That was on 5 January 1984. What classification did he want to add. He wants to add class C. What did that entitle him to have. To possess handguns, or pistols. All sorts of handguns, do you mean, or just pistols. Pistols and handguns basically are the same, but the current terminology is handguns and, in that day, it used to be classified as pistols. That includes revolvers, for example, does it. Yes. Were there any restrictions on what he could do with those handguns that he had. The licence was granted because he was a member of a pistol club. What flows from that. He is able to possess and use firearms at the pistol club. Q. Is he allowed to transport them to and from the pistol club. A. Yes, he was allowed to keep them at home, transport them to and from the club or to a place of repair. Q. Could he take them to a mate's place to show a mate. A. Not normally, no, it was for pistol club purposes. Q. Obviously he was allowed to have ammunition. A. Yes. Q. Stored with the pistol. A. At that time, yes, there was no legislation in regard to the storage of ammunition, at that time. Q. Has that changed since. A. Yes, on 1 September 1993. Q. What change was effected. A. On 1 September 1993, the amendments to the Firearms Act made it illegal to store ammunition with a firearm. Q. What if you were transporting it to your pistol club for shooting. A. That comes under a different offence under the Summary Offences Act s.15, it is under s.15. Q. Never mind offences, was he entitled to take ammunition with his pistol. A. No. Q. And take it to the shooting club. A. No, not loaded. Me could carry it separately. Q. You mentioned he was a member of a pistol club; did you say which one, or do your records show that. A. His records show that he was a South Australian Revolver and Pistol Association member and was a member of the SSAA Power Range Club. Q. SSAA being, what. A. The Sporting Shooters Association. Q. In the ensuing years, was there a change to any of his licence classifications. A. Yes, on 27 August 1990, on his renewal, he requested that he be also accredited as a member of the SSAA or the Supporting Shooters of South Australia Power Branch Collectors Club. Q. Collectors section. A. Yes, or collectors club. Q. What does that mean. A. That he was a member of the collection side of the Power Branch Club and was permitted to collect firearms as part of a collection. CONTINUED You mentioned the legislation changed in 1993 and changes flowed from that. After that time did he add another couple of classes to his licence. Yes, well firstly as a result of the changes, on 1 September 1993 the computer identified any self-loading firearms. Which is self-loading firearms were taken out of the previous classes, A, B and D, and the legislation created new classes, E, F and G. Mr Foreman had a .22 self-loading rifle which automatically the computer gave him a class E, so that he could legally possess a .22 self-loading rifle. And after that was there another change to his classification. Yes, on the first renewal after the change, which his renewal was 15 August 1994, at his request his licence was also varied to include classes F and G, which is self-loading shotgun and self-loading centre fire rifles. Were there any other changes to his classifications. Yes, two. The purpose of use to his classification. In his application for renewal of licence dated 11 August 1995 he requested that the club purposes be deleted and it was only for collection purposes only. Just explain that, would you. What was deleted. The club purposes. For a person to be able to renew a firearms licence for club purposes ~hey must produce a chit or certificate from their club in which they are a member. In other words in this case the Sporting Shooters Association of Australia Para Branch Club. Me was unable, for reasons I don't know, to produce from the actual pistol shooting section but did from the collection side of the club and he requested that it only be renewed for collection purposes. Q. Can we go to the weapons which during that period when Mr Foreman was licenced have been registered to him. And can we tackle it this way, could you tell us first what weapons he had as at October last year. A. Do you want full details of each entry? I don't want serial numbers, just the type of weapon, the brand name. A. He had a Miroku lever action rifle. Q. Is that M-I-R-O-K-U. A. M-I-R-O-K-U, yes. Q. When did he acquire that. A. On 5 April 1982. Q. Next. A. Elgamo air rifle. Q. When did he acquire that. A. It was registered on 19 July. Q. 1982. A. Yes. Q. And the next one. A. A Winchester lever action rifle, which he registered on 7 November 1982. Q. And the next one. A. A .22 calibre Smith and Wesson semiautomatic pistol or self-loading pistol, 23 January 1984 is the registration date. Q. And the next one. A. A Dan Wesson revolver, which is registered on 5 November 1986. Q. What calibre was that one. A. That was a 35 calibre. Q. And the next one. A. A Marlin lever action rifle 45 calibre. Q. And the date when it was registered. A. 7 November 1987. Q. The next one. A. A Winchester lever action rifle, 32 calibre and it was registered on 5 November 1988. Q. Please go on. A. Another Winchester lever action rifle, 38 calibre, registered on 3 March 1989. A Winchester lever action, 45 calibre, registered on 10 October 1989. Q. A rifle. A. Rifle, yes, lever action rifle. A Ruger Sturm revolver. Q. Is that S-T-U-R-M. A. I have only heard, I don't know. Q. Just give us the serial number for that one. A. Yes. CROSS-EXAMINATION BY MR COPPOLA That's correct, A. Yes. Q. The second of those stages is one has to obtain an authorisation to purchase the pistol from a club of some sort. A. That's correct. Q. And those clubs have in turn been approvedby the police. A. Yes. The third of those stages is to take that club authorisation to a police station and apply for a permit to buy that particular pistol CONTINUED A. That is correct. Q. And it is only upon receipt of that approved police permit that the pistol may lawfully be bought and sold. A. That's correct. Q. And in each of the occasions when Mr Foreman bought and or sold any of the pistols to which you have referred, he went through that process. A. Yes. Q. In relation to his collection of pistols, it is not unusual, I suggest, for firearms collectors to have varying numbers of firearms in their collecti~ne., A. That is correct, yes. Q. And that number of firearms can be, obviously depending on the collector, dozens up to many more than that in some instances. A. Yes NO RE-EXAMINATION NO FURTHER QUESTIONS WITNESS RELEASED MS VANSTONE CALLS THEODORE VAN DIJK EXAMINATION BY MS VANSTONE Q. You are a police officer· SWORN Yes, a sergeant with the Crime Scene Section of the Police Department. Very briefly, what are your duties there. I am a senior crime scene investigator, also responsible for the .supervision of other members of that area and part of my daily duties, depending on rostering, includes the attendance of a range of crime s,~.e~nes to record, photograph and collect any evidence that may be there. For how long have you been working in that sort of area. Since 1972. In relation to the matter before the court, do you have any notes to which you would like to refer. A. Yes. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING On 14 October, being a Saturday I think, last year, did you go to the Caltex Service Station on the south- eastern corner of South and Richmond Roads, Keswick. Yes. About what time did you get there. I arrived about half past nine in the evening. Could you just generally describe the scene that greeted you. A. Yes, there were quite a number of police personnel in attendance· There was crime scene tape surrounding the immediate entrance to the actual shop area of the service station and a number of people were being spoken to by a range of police officers· An the crime scene tape, I think it was just put there to protect the area from foot traffic and disturbance and so forth ..... That is correct. Did you take particular notice of some blood spots and spills around the area. A. Yes, due to the nature of the incident I actually called for assistance and with both Senior Constable De Laine, as well as Constable Burnside and Bosley - and, sorry, Spence, we took photographs at my direction and they include showing a number of areas where the blood was outside of the service station as well as inside the premises. Q. I think some of those photographs have been selected and placed into a booklet in preparation for this trial, is that so. A. Yes. Q. And is there an extra photograph that has been put in, which will be explained later, but which is a photograph taken of Dr James demonstrating something. A. Yes. EXHIBIT P2 SHOWN TO JURY Photographs taken by Mr Van Dijk tendered by Ms Vanstone. Admitted. About what time did you start taking the photographs. That would have been about 20 minutes after my arrival, so about quarter to ten. Q. Could you explain what photograph one shows. A. Taken looking more or less north-east, looking at the servo area underneath the main roof of the service station and looking at the distance of the shop and cashier area. Q. Photograph 2. A. It is actually taken from the opposite end looking south-east and showing that same area but here the tape, the crime scene tape is far more evident. Q. we can see that stretching along the front of the premises. A. Yes. Q. Is that the entrance door that one can see just behind that vintage car. A. Yes, near where the red and white coca-cola light is on a drink dispenser. Q. Photograph 3. Photograph 3 is an area immediately in front of that vintage car seen in photograph 2 and shows a number of discrete blood droplets. They disappear into the background but they are directly in front of the vintage car and they lead back along, as you can see in the photograph, towards the lower right of the photograph. And photo 4. Just by standing back a little bit you can see the continuation of that blood trail leading back to the rear of the vintage car toward the entrance o.~.~the service station shop. Did you make some enquiries about that particular car and whose it was. No, not specifically. I was advised that the owner of the service station, that it was his vehicle. And that it was there throughout this incident· Yes. And photograph 6. Photograph 6 shows the floor immediately in front of the shop entrance and just to the right of the shop entrance you can see that drink dispenser that I referred to earlier. And 7. Photograph 7 is actually standing inside the service station looking back towards the entrance and shows quite a large number of blood stains but in particular a knife, a plastic shopping bag and a pistol lying on the floor. Did you understand that those three items were left in their correct position pending your photograph being taken· Yes. And photo 11. Photograph 11 is looking up from where the knife and the .... gun were located towards the cashier's counter· To be clear about that, there is a plan behind you, could you point to the area where you were standing when 38 you took that photograph. I was standing approximately near the sign that says 'minties' and appears on this plan down towards the counter. HIS HONOUR You are facing in a southerly direction and you are to the west of the minties display. Yes, I am. And photograph 12. Photograph 12 is further back, looking still..~Qwards the south of the service station shop and includes a view into the cashier's office, the entrance to the cashier's office. Q. So you are in the other aisle at that stage. A. Yes, I am. HIS HONOUR Q. So this time you are on the east of the minties section facing in the same direction as before. Yes and I am close to the area marked 'freezer' (INDICATES). We can just see the minties placard to the right of that photograph I think, true. A. Yes. Q. It seems to be about the highest placard. A. Yes, it is. Q. And photograph 14. A. Photograph 14 is a view taken directly over the cashier counter and looking directly north along the corridor back to the entrance to the shop. Q. So you are in that area labelled 'staff' on the plan, are you. A. Yes, I am. Q. Are you standing or sitting. A. Standing. HIS HONOUR Q. What height are you. I am 180 cms. In that photograph can we see the back of the minties placard· A. Yes, there's two placards I understand and the one, the minties is white. There is a buff coloured one in front. The minties one is one that has got a bit of a pattern to the top of it. Q. And a bit of a candy stripe holding it up. A. Yes. Q. And the one closer to you, as the photographe~,~ that is the chip one, is it. A. Yes, yes it would be. HIS HONOUR Q. Would you have been holding the camera to your eye when you took this photograph. A. All of the photographs are actually taken at my direction by Mr Bosley and yes, he would view, in fact he was viewing for the shots as they were taken. More relevantly then, how tall is he. He is slightly taller than I am. That is taken from the doorway leading into the staff or cashier'S area and looking straight north along the other corridor where the security camera is in the far north wall. Q. So in the eastern corridor and looking north. A. Yes. Q. Could you indicate on the plan whereabouts the photographer was standing· A. The photographer would have been standing slightly back from the doorway, so that you can actually see the doorway in the photograph and the view is north along the eastern (INDICATES)· Q. So about level with the word 'office' but within that opening that we see. A. Yes. HIS HONOUR Is that piece of orange in the left foreground part of the counter shown on the previous photograph. Yes, it is. You mentioned the video camera, could you point that out to us. Yes, it is a very small area. There is a sign in the background in photograph 15. It is an orange colour or orange red, has the words 'car care' and 'fast food' and immediately to the right of the word 'food', about 1 cm to the right, there's a dark object hanging from. the .... ceiling and that is the security camera, from memory. Is that the one that viewed some of the events in issue. Yes. And 16. Photograph 16 is - by stepping fractionally forward, about half a metre forward, and standing in the actual doorway of the previous photograph and then turning slightly to the left we are now having a view directly over the display cabinets towards the door leading out of the service station. So you are level with the counter, which is described on the plan as being 1.12 high. Yes. And looking over to the doorway. That's correct, I'm level with the counter but standing in the doorway (INDICATES). HIS MONOUR So you are standing just a bit to the east of the counter. Yes, your Honour. And looking in a north-westerly direction towards the doorway. That's correct. And on the right-hand-side of the photograph that's a .... video camera, is it, immediately on the right-hand-side of the photograph about an inch down from the top. A. Yes. The door, the exit/entry door, was it open or closed when the photograph was taken. It is open. It is actually a double door but only one of the double doors is open. And obviously you can see through that but at an angle. Yes. And what do you see in daylight, anyway, when you look Through that door. In daylight you can look across the service station into 10 the intersection of South Road and Richmond Road~ Photograph 17 is just a view of the counter, cashier area and in the foreground on the counter there is a half cup, polystyrene cup of coffee or similar and a small pistol magazine lying next door to it. That pistol is the Beretta weapon, is it not. Yes. And the magazine next to it actually looks like a cigarette lighter, doesn't it. Yes. But that is the magazine that fits into that firearm. That is correct. You can see the cash register there obviously. Yes. Is there a telephone just to the left of that. There is, yes. And then to the right of the counter nearer where the pistol is there is hot nuts by the look of it, quite a high display of those. Yes, it is. And then some cigarettes just to the left of that. Yes. But then is there an area where the console operator can talk directly to a customer. A. That's correct and it is that area where photograph 14 was taken from. Q. And photograph 20. in Later in the evening when Senior Constable De Laine arrived from our ballistics section, a number of photographs were taken and in this photograph the hand seen in the foreground is being held by Senior Constable De Laine, while in the background is one of my people from the crime scene area and there's a tape being held taut from the doorway, in fact it is almost identical to photograph 16 but now a piece of tape has been stretched taut to show the line, straight line between that point and the exit door of the service station· And photograph21 .... Whilst it is turned on its side a little bit the opposite view of the photograph, in other words we have gone outside and stood behind Senior Constable Spence and looking back towards Senior Constable De Laine, still holding the tape stretched between the two counters· So that just demonstrates the line of sight from one position to the other· That's correct. And 22. 22 is taken again from the north-eastern corner and shows Mr De Laine standing in the office doorway and you can see the tape stretched behind the mintie sign. HIS HONOUR Is that taken under the point where the video camera is. Yes. And 23. 23 is a continuation of photograph 2. In other words if you placed the two together, or halfway across each other, you would have the continual view that we were Trying to show in one photograph. And 23. 24. 24 is the shopping bag that was lying on the floor, opened up slightly to show three $50 notes contained inside. That is the one we can see back in photo 7, is it. Yes, it is. Three $50 notes you say. Yes. 27. 27 and 28 are photographs that although I wasn't involved with their taking, they were taken on my understanding at the direction of Ross James. Q. We will hear some evidence about that. A. Yes. Q. Similarly the final photograph just marked A~"i think we will hear some evidence from Dr James about that. A. Yes. Q. Whilst you were at the service station did you learn that the surveillance video camera had in fact been operating during the robbery. A. Yes, and it was still operating at the time that I was initially taking photographs. Q. I think that was seized by police. A. Yes, I arranged for the owner of the service station to come in to remove it from the machine and actually play it before I handed it over to Detective Hand. Q. Looking at the item produced, does that appear to be the video, so far as you can tell. Without opening it up, yes. I took the video out of the machine and handed it to detective - MR DAVID: I have seen various videos that my friend wishes to tender. That can be done by consent. Formal proof is not required. EXHIBIT P8 Video tape taken from the premises by Sergeant Van Dijk tendered by Ms Vanstone. Admitted. CONTINUED MS VANSTONE: There will be other videos and perhaps later on we can play them in a group? HIS HONOUR: Yes. Have you been to the premises more recently. Some week or so later I took some photographs during daylight. Q. No, I meant recently in terms of now, in the last week or so. A. No, not myself. Q. You are not in a position to comment on any differences. that there may be now. A. No. MS VANSTONE: Perhaps it would be advantageous if this officer went to the view with us tomorrow and, if there is anything that needs clarification, perhaps I can recall him? HIS HONOUR: Mr David, do you have any problem about MR DAVID: No, there are obviously differences between what we are going to see tomorrow and what was there that night. If my learned friend wants to get a list of those prepared, we can, in a sense, read them into the transcript tomorrow while it is on hand, so that can be done by consent, at the time. HIS HONOI/R: Can that be done, Ms Vanstone? Yes. HIS HONOI/R: And perhaps we could read that immediately'before the view starts? MR DAVID: NO CROSS-EXAMINATION NO FURTHER QUESTIONS WITNESS RELEASED MS VANSTONE CALLS GERARD OWEN BRENNAN EXAMINATION BY MS VANSTONE Q. SWORN Are you a police officer. That's correct. What rank. Detective Senior Constable. Where are you stationed. I am stationed at Darlington CIB. What is the extent of your experience in criminal investigation work. In the CIB for the past eleven years. Are you one of the officers who investigated this matter. That's correct. When did you first go to the service station at the corner of South Road and Richmond Road. Q. Was any attempt being made at that stage to preserve the scene at all. There was crime scene tape up around the actual shop area and there was a person maintaining a log of who was coming in and who was going, a uniformed officer. G.O. BRENNAN XN Q. That is customary on these occasions. A. That's correct. Q. After you'd been at the scene for several minutes did you speak to a civilian. A. Yes, I did. Q. was that Mr Foreman. A. That's correct. Q. And is he seated to your right in the dock. A. Yes, that's Mr Foreman. Q. Whereabouts did you speak to him. A. Me was seated in a police vehicle, uniform, a marked police vehicle, in the back seat. I sat next to him in the back seat, spoke to him. Q. At some time did you make notes of that conversation. A. Yes, I did. Q. When. A. At the time, I believe. Q. Were they an accurate account of the conversation. A. Yes, they were. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. Anyone else present apart from you and Mr Foreman. A. Detective Collins was, I think he was near me, just outside of the vehicle, as I remember, or he may have been seated in one of the front seats. Q. What time was this conversation. A. The conversation took place about 9.40. Q. What was said. A. I said 'I'm Detective Brennan, this is Detective Collins. We are from Darlington CIB. What is your name?' He said 'Kingsley Foreman.' I said 'Kingsley, we will need to speak to you about what happened tonight. Have you got any objections to speaking to me on video?' He said 'No. Why on video?' I said 'It's just a lot quicker on video. Do you understand you are not under arrest, we would just like to find out what happened tonight?' i He said 'Yeah, that's all right. Do you know how he is?' I said 'No, I don't know. Our car is parked on South Road. We can drive you into Angas Street and we will have a chat to you there about what happened.' He said 'All right. Do we go now?' I said 'Yeah, you can jump in our car, it is over there.' Indicating towards South Road. Our vehicle was parked facing south on South Road. Q. What happened then. A. We then walked to our police vehicle and Kingsley got in the back seat, back left-hand passenger seat. I sat next to him, then I spoke to him. Q. Just before we go to that, did you notice the accused's vehicle anywhere. A. Yes, his tow truck was near the uniform vehicle and he actually secured that prior to us going to the police vehicle. Q. So where does that put it in relation to the service station shop area. A. That was on the southern side of the service station shop area, as I recall. Q. Somewhere near the carwash. A. Yes. Q. You say you spoke to the accused further in the vehicle. A. Yes. I said 'Kingsley, can you tell me your full name?' He said 'Kingsley John Foreman.' I said 'How old are you Kingsley?' He said '37. ' ' I said 'And your occupation?' He said 'I'm an owner driver for Richmond Towing.' Q. Someone came and spoke to you I think. A. Yes. Q. You then said to him 'We'll go now if you are ready.' A. Yes. Q. And he said 'Right.' A. We then headed towards Angas Street police building. Q. What time did you get there. A. We arrived there at one minute past ten. Q. Where did you go. A. We then moved to the Adelaide CIB video interview room on the first floor. Q. What took place. A. I spoke to Kingsley there. I said 'Kingsley, I'll just advise you before we start that you can have a friend, relative or solicitor present during this interview. So if you want someone present it is best you let us know now so we can arrange something. Me said 'No, I'll be right.' I said 'I also advise you, Kingsley, that you are not obliged to answer these questions as anything you say may be taken down on video and may be used in evidence in court. Do you understand that?' He said 'Yes.' I said 'Do you wish to ring anyone before we commence this video to let them know where you are?' Me said 'No, I've already spoken to my boss.' We then commenced the video interview. Q. Did you make an attempt to record the conversation on video. A. Yes, there was a machine there which it was a new machine, which took three videos, as opposed to three audios and one video. So I placed the three videos in the machine and it may have been Detective Collins turned the machine on and we, I, then commenced to interview the accused. Q. Thinking that it was being recorded on a video camera. A. Yes, the display indicated that it was being recorded. Q. And later on did you ascertain that it hadn't been recorded. A. Yes, a couple of days later when I went to have the transcript of that conversation typed up, ascertained that it had not been recorded. Q. Had you made any notes yourself or had Detective Collins during the conversation. A. No. Q. Did you still have a recollection of the conversation two days later. A. Yes, I did. Q. And at that time did you sit down and make a record of the conversation. A. I did, yes, I sat down on a computer and typed up the conversation as best as I could remember it. Q. Did you and Mr Collins confer about that at all. A. It was mainly myself just sat there because I'm not sure if Collins had started to leave at that stage but I may have asked him one or two questions. Q. At that stage how accurate was your recollection of the conversation you had had with Mr Foreman, can you give us some help as to that. A. Well, it was as accurate as I could recall it. Certainly that was the main issue that I was working on at that time and there was nothing to distract me from that enquiry, so uppermost in my mind. Q. And you came up with an account of the conversation which you say was what, accurate, reasonably accurate, how would you describe it. A. I would have to say it was as accurate as I could recall when I typed it. Reasonably accurate. Q. Have you got notes with you now or the typed up account that you made a couple of days after the interview. A. I have, yes. Q. Do you seek his Honour's permission to refer to those. A. If I may. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. Could you tell us now of the conversation. I said 'The recording equipment has now been activated to record this interview. The time is 10.15 p.m. on Saturday, 14 October 1995. My name is Detective Senior Constable Jack Brennan stationed at Darlington CIB. I now ask all others present in the room to state their full name.' The reply was 'Michael Brian Collins Detective, Senior Constable stationed at Darlington CIB' and 'Kingsley Foreman.' I then said 'Kingsley, do you agree there are no other persons present in this room?' He said 'That's correct.' I said 'Kingsley, do you agree you have come here of your own free will?' He said 'Yes, that's correct.' I said 'Do you understand you are not under arrest?' He said 'Yes.' I said 'Kingsley, I advise you that you are not obliged to say anything unless you wish, as anything you say may be taken down on the recording equipment and may be given as evidence in court. Do you understand?' He said 'Yes.' I said 'Kingsley, are you quite happy for this interview to proceed without a solicitor or anyone else present?' He said 'Yes.' .. I said 'Kingsley, can you tell me your age and date of birth?' I said 'And what is your home address?' He I said 'And what is your occupation?' He said 'I am owner driver for Richmond Towing.' I said 'Can you tell me how you came to be at the Caltex Service Station on the corner of Richmond Road and South Road tonight.' He said 'I normally drop in there for a coffee most nights and have a chat to Margaret or the person working there.' I said 'About what time did you go there tonight?' He said 'About 9 o'clock or 5 past 9.' ~ I said 'And what did you do when you got there?' He said 'I said hello to Margaret and went and gota coffee. I then came out and had a chat to Margaret and sat behind the counter near the console.' I said 'Where did you go to get the coffee?' Me said 'There's a room about opposite the door where you come in, I just went in there, they all know me.' I said 'What happened then?' He said 'I sat down and was talking to Margaret. A customer must have entered the shop and next I heard him saying something like "Fill it up." Margaret looked a bit concerned so I got up to see what was going on.' I said 'Do you think the customer was able to see where you were sitting?' He said 'I don't think he did to start with, I don't think he could see me over the counter because I was sitting down.' I said 'What happened when you got up?' He said 'I saw there was a bloke with a knife and he was telling Margaret to fill a plastic bag up. I think he was saying "Fill it up" and to hurry up.' I said 'Was Margaret filling the bag up?' Me said 'Yes, she was.' I said 'What did you do when you saw this person with the knife?' Me said 'I stood in the doorway, I can't remember if the door was partly open or fully open. This bloke then threatened me with the large knife he was holding.' I said 'What did you do?' He said 'I backed away and reached for my pistol.' I said 'Where was your pistol?' He said 'In my trouser pocket.' I said *Which pocket was it in?' He said 'The right side pocket.' I said 'What type of pistol did you have in your pocket?' He said 'A Beretta .25 calibre semiautomatic centre fire.' I said 'What did you do then?' He said 'I pushed the magazine into the but and cocked it.' I said 'How many bullets did you have in the magazine?' He said 'About five I think.' I said 'What happened then?' He said 'He grabbed the bag of money and started to run out the shop.' I said 'Did you see what hand the knife was in at this time?' He said 'No, I couldn't say.' I said 'What happened then?' He said 'As he went to leave he turned to his left and I then saw he had a large black pistol in his hand. He moved the pistol towards my direction and said something like "Don't fuck with me" I was in fear of my life and I fired one shot. I thought I had missed him because he ran out the door.' I said 'What happened then?' He said 'After a few seconds he came back into the shop and I could see he was bleeding from the neck. He was saying something about the gun he had wasn't a real gun.' I said 'What happened then?' He said 'Margaret grabbed some paper towell and put it over his wound to try to stop the bleeding. I think she had already rung the police and ambulance. I tried to stop the blood as well.' I said 'When did you become aware that this person had a gun?' He said 'As he pointed it towards me that is the first time I saw he had a gun. When he threatened me I was in fear for my life so I fired one shot at him. If he didn't threaten me with a gun I wouldn't have fired at him. He was nearly out the door anyway. It wasn't my money so I wasn't worried about him stealing it.' I said 'Did you say anything to him before you fired?' ~ 37 He said 'No, he threatened me and I just shot MS VANSTONE CALLS GERARD OWEN BRENNAN EXAMINATION BY MS VANSTONE Q. SWORN Q. Was any attempt being made at that stage to preserve the scene at all. There was crime scene tape up around the actual shop area and there was a person maintaining a log of who was coming in and who was going, a uniformed officer. G.O. BRENNAN XN Q. That is customary on these occasions. A. That's correct. Q. After you'd been at the scene for several minutes did you speak to a civilian. A. Yes, I did. Q. was that Mr Foreman. A. That's correct. Q. And is he seated to your right in the dock. A. Yes, that's Mr Foreman. Q. Whereabouts did you speak to him. A. Me was seated in a police vehicle, uniform, a marked police vehicle, in the back seat. I sat next to him in the back seat, spoke to him. Q. At some time did you make notes of that conversation. A. Yes, I did. Q. When. A. At the time, I believe. Q. Were they an accurate account of the conversation. A. Yes, they were. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. Anyone else present apart from you and Mr Foreman. A. Detective Collins was, I think he was near me, just outside of the vehicle, as I remember, or he may have been seated in one of the front seats. Q. What time was this conversation. A. The conversation took place about 9.40. Q. What was said. A. I said 'I'm Detective Brennan, this is Detective Collins. We are from Darlington CIB. name?' He said 'Kingsley Foreman.' I said 'Kingsley, we will need to speak to you about what happened tonight. Have you got any objections to speaking to me on video?' He said 'No. Why on video?' I said 'It's just a lot quicker on video. Do you understand you are not under arrest, we would just like to find out what happened tonight?' i He said 'Yeah, that's all right. Do you know how he is?' I said 'No, I don't know. Our car is parked on South Road. We can drive you into Angas Street and we will have a chat to you there about what happened.' He said 'All right. Do we go now?' I said 'Yeah, you can jump in our car, it is over there.' Indicating towards South Road. Our vehicle was parked facing south on South Road. Q. What happened then. A. We then walked to our police vehicle and Kingsley got in the back seat, back left-hand passenger seat. I sat next to him, then I spoke to him. Q. Just before we go to that, did you notice the accused's vehicle anywhere. A. Yes, his tow truck was near the uniform vehicle and he actually secured that prior to us going to the police vehicle. Q. So where does that put it in relation to the service station shop area. A. That was on the southern side of the service station shop area, as I recall. Q. Somewhere near the carwash. A. Yes. Q. You say you spoke to the accused further in the vehicle. A. Yes. I said 'Kingsley, can you tell me your full name?' He said 'Kingsley John Foreman.' I said 'How old are you Kingsley?' He said '37. I said 'And your occupation?' He said 'I'm an owner driver for Richmond Towing.' Q. Someone came and spoke to you I think. A. Yes. Q. You then said to him 'We'll go now if you are ready.' A. Yes. Q. And he said 'Right.' A. We then headed towards Angas Street police building. Q. What time did you get there. A. We arrived there at one minute past ten. Q. Where did you go. A. We then moved to the Adelaide CIB video interview room on the first floor. Q. What took place. A. I spoke to Kingsley there. I said 'Kingsley, I'll just advise you before we start that you can have a friend, relative or solicitor present during this interview. So if you want someone present it is best you let us know now so we can arrange something. Me said 'No, I'll be right.' I said 'I also advise you, Kingsley, that you are not obliged to answer these questions as anything you say may be taken down on video and may be used in evidence in court. Do you understand that?' He said 'Yes.' I said 'Do you wish to ring anyone before we commence this video to let them know where you are?' Me said 'No, I've already spoken to my boss.' We then commenced the video interview. Q. Did you make an attempt to record the conversation on video. A. Yes, there was a machine there which it was a new machine, which took three videos, as opposed to three audios and one video. So I placed the three videos in the machine and it may have been Detective Collins turned the machine on and we, I, then commenced to interview the accused. Q. Thinking that it was being recorded on a video camera. A. Yes, the display indicated that it was being recorded. Q. And later on did you ascertain that it hadn't been recorded. A. Yes, a couple of days later when I went to have the transcript of that conversation typed up, ascertained that it had not been recorded. Q. Had you made any notes yourself or had Detective Collins during the conversation. A. No. Q. Did you still have a recollection of the conversation two days later. A. Yes, I did. Q. And at that time did you sit down and make a record of the conversation. A. I did, yes, I sat down on a computer and typed up the conversation as best as I could remember it. Q. Did you and Mr Collins confer about that at all. A. It was mainly myself just sat there because I'm not sure if Collins had started to leave at that stage but I may have asked him one or two questions. Q. At that stage how accurate was your recollection of the conversation you had had with Mr Foreman, can you give us some help as to that. A. Well, it was as accurate as I could recall it. Certainly that was the main issue that I was working on at that time and there was nothing to distract me from that enquiry, so uppermost in my mind. Q. And you came up with an account of the conversation which you say was what, accurate, reasonably accurate, how would you describe it. A. I would have to say it was as accurate as I could recall when I typed it. Reasonably accurate. Q. Have you got notes with you now or the typed up account that you made a couple of days after the interview. A. I have, yes. Q. Do you seek his Honour's permission to refer to those. A. If I may. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. Could you tell us now of the conversation. I said 'The recording equipment has now been activated to record this interview. The time is 10.15 p.m. on Saturday, 14 October 1995. My name is Detective Senior Constable Jack Brennan stationed at Darlington CIB. I now ask all others present in the room to state their full name.' The reply was 'Michael Brian Collins Detective, Senior Constable stationed at Darlington CIB' and 'Kingsley John Foreman.' I then said 'Kingsley, do you agree there are no other persons present in this room?' He said 'That's correct.' I said 'Kingsley, do you agree you have come here of your own free will?' He said 'Yes, that's correct.' I said 'Do you understand you are not under arrest?' He said 'Yes.' I said 'Kingsley, I advise you that you are not obliged to say anything unless you wish, as anything you say may be taken down on the recording equipment and may be given as evidence in court. Do you understand?' He said 'Yes.' I said 'Kingsley, are you quite happy for this interview to proceed without a solicitor or anyone else present?' He said 'Yes.' .. I said 'Kingsley, can you tell me your age and date of birth?' He said 'I' I said 'And what is your home address?' He said '37 ' I said 'And what is your occupation?' He said 'I am owner driver for Richmond Towing.' I said 'Can you tell me how you came to be at the Caltex Service Station on the corner of Richmond Road and South Road tonight.' He said 'I normally drop in there for a coffee most nights and have a chat to Margaret or the person working there.' I said 'About what time did you go there tonight?' He said 'About 9 o'clock or 5 past 9.' I said 'And what did you do when you got there?' He said 'I said hello to Margaret and went and gota coffee. I then came out and had a chat to Margaret and sat behind the counter near the console.' I said 'Where did you go to get the coffee?' Me said 'There's a room about opposite the door where you come in, I just went in there, they all know me.' I said 'What happened then?' He said 'I sat down and was talking to Margaret. A customer must have entered the shop and next I heard him saying something like "Fill it up." Margaret looked a bit concerned so I got up to see what was going on.' I said 'Do you think the customer was able to see where you were sitting?' He said 'I don't think he did to start with, I don't think he could see me over the counter because I was sitting down.' I said 'What happened when you got up?' He said 'I saw there was a bloke with a knife and he was telling Margaret to fill a plastic bag up. I think he was saying "Fill it up" and to hurry up.' I said 'Was Margaret filling the bag up?' Me said 'Yes, she was.' I said 'What did you do when you saw this person with the knife?' Me said 'I stood in the doorway, I can't remember if the door was partly open or fully open. This bloke then threatened me with the large knife he was holding.' I said 'What did you do?' He said 'I backed away and reached for my pistol.' I said 'Where was your pistol?' He said 'In my trouser pocket.' I said *Which pocket was it in?' He said 'The right side pocket.' I said 'What type of pistol did you have in your pocket?' He said 'A Beretta .25 calibre semiautomatic centre fire.' I said 'What did you do then?' He said 'I pushed the magazine into the but and cocked it.' I said 'How many bullets did you have in the magazine?' He said 'About five I think.' I said 'What happened then?' He said 'He grabbed the bag of money and started to run out the shop.' I said 'Did you see what hand the knife was in at this time?' He said 'No, I couldn't say.' I said 'What happened then?' He said 'As he went to leave he turned to his left and I then saw he had a large black pistol in his hand. He moved the pistol towards my direction and said something like "Don't fuck with me" I was in fear of my life and I fired one shot. I thought I had missed him because he ran out the door.' I said 'What happened then?' He said 'After a few seconds he came back into the shop and I could see he was bleeding from the neck. He was saying something about the gun he had wasn't a real gun.' I said 'What happened then?' He said 'Margaret grabbed some paper towell and put it over his wound to try to stop the bleeding. I think she had already rung the police and ambulance. I tried to stop the blood as well.' I said 'When did you become aware that this person had a gun?' He said 'As he pointed it towards me that is the first time I saw he had a gun. When he threatened me I was in fear for my life so I fired one shot at him. If he didn't threaten me with a gun I wouldn't have fired at him. He was nearly out the door anyway. It wasn't my money so I wasn't worried about him stealing it.' I said 'Did you say anything to him before you fired?' ~ 37 He said 'No, he threatened me and I just shot instinctively, I didn't have time to aim.' I said 'Did you use one hand or two when you fired?' He said 'Just one hand.' I said *Whereabouts was this person when you fired?' He said 'Me was near the door, I couldn't say exactly Like I say I thought I where it all happened so quick. had missed him, I wish I had.' I said 'You say this person threatened you, did he threaten you with a pistol?' He said 'When he got near the door he turned and said something similar to "Don't fuck with me". As he turned I saw his gun come up and I just fired as I was in fear for my life.' I said 'You say he turned, how did he turn?' He said 'He just turned slightly to his left. he might turn and fire so I fired one shot.' I said 'What happened after this person was shot?' He said 'He ran out the shop, that's why I thought I had missed him, then after a few seconds he came back into the shop. I could see there was blood coming from his neck, I realised then I must have hit him.' I said 'When he came back into the shop what did you do with the knife and the pistol?' 'What did he do with the.' 'What did he do with the knife and pistol?' sorry. He said 'I think he put them on the ground after he walked in and the bag with the money.' I said 'How far did this person run out the shop?' He said 'He was only gone for a couple of seconds. Me must have run out and when he realised he had been shot he ran straight back in.' I said 'When you shot this person was he leaving the shop?' He said 'He started to leave and headed towards the door. As he got to the door he turned and said something like "Don't fuck with me'. He then pointed his gun towards me and as to the result, I was in fear for my life and fired.' I said 'Why were you carrying a pistol?' He said ~I bought it in to show Margaret. They sell toy guns there, they're cigarette lighters so I was going to show her what a real one looked like.' I said 'Do you usually carry a pistol with you whilst you are working?' He said 'No, I bought them into the service station in the past just to show a couple of operators.' I said 'Who have you shown in the past?' He said 'I might have shown Margaret, I think I've shown Greg, he is a console operator, and maybe one of the others.' I said 'Why did you keep a loaded magazine with the pistol?' He said 'I was going to show her the bullets as well as the pistol.' I said 'How were you carrying the magazine?' He said 'It was in the butt of the pistol but not pushed in all the way. There were no bullets in the spout. had to push the magazine in and cock it before I was able to shoot it.' I said 'Do you have a class C licence?' He said 'Yes. I have a current class C licence .and. I'm also a collector, so I'm authorised to display them and take them to and from a swap.' I said 'Do you belong to a pistol club?' He said 'I belong to the Para Pistol Club, it's out near Golden Grove.' I said 'Have you fired this pistol at this range?' He said 'I have. See we have shooting dates and none shooting dates. Sometimes I take the guns there only for display.' I said 'How often do you carry a pistol with you?' He said 'Normally only when I go to the pistol club or taking them to displays.' _ I said 'When he pointed his gun towards you did you believe it was a real gun?' He said 'You bet. It looked real to me, that's why I fired.' I said 'What do you understand your class C pistol licence allow you to do?' He said 'You can carry a gun to and from the pistol club. I think I'm allowed to take it for the purpose of display under the collector's part and that's what I was doing tonight, I was going to show Margaret.' I said 'Do you believe you are entitled to carry ammunition attached to your pistol?' Me said 'Again, yes, I think under the collector's part I'm entitled to have ammunition?' I said 'Do you think you are entitled to carry ammunition attached to the gun as in the magazine?' He said 'Yes, I believe I am.' I said 'When you fired at this person what did you intend to do?' He said 'As I say, it was an instinctive shot. the gun, he threatened me so I shot at him.' I said 'Did you aim the pistol at him?' He said 'No, I didn't have time to aim. When I saw the gun and he threatened me I brought my gun up quickly and fired it. Actually thought I had missed him as I just fired in his direction.' I said 'You say he said something like "Don't fuck with me" when he got near the door?' Me said 'Yeah, it was something like that. I can't remember exactly what he said, i,m still a bit shook up by it all.' I said 'I understand that. Do you still feel up to answering some more questions?' He said 'Yes, I'll be right.' I said 'About what time did this person come into the service station?' He said 'I think it would have been about quarter past nine.' I said 'And what time do you think you fired the shot?' He said 'About a few minutes after he came in. happened pretty quick.' I said 'Can you describe this person to me?' He said 'He would have been in his early twenties, stocky build. I think he was wearing a hat.' I said 'Can you describe his hat?' He said 'Just a baseball hat, dark in colour.' I said 'Do you recall what clothes he was wearing?' He said 'I think he had a dark shirt and trousers, I'm not sure.' I said 'How tall was he?' He said 'A bit shorter than me I would say.' I said 'Did you see the gun he was holding when he was at the counter?' He said 'No, I only saw the knife. I didn't see the pistol until he was near the door and threatened me.' I said 'Can you describe the pistol to me?' He said 'It was black and it looked real.' I said 'Can you describe the knife to me?' He said 'It was a large kitchen knife.' 'It was like a large kitchen knife.' Sorry, 'it was like a large kitchen knife.' I said 'Did you recall what hand he was holding the knife in?' He said 'I think he had it in his left hand.' I said 'Can you tell me what hand he was holding the pistol in?' He said 'I think he was holding it in his right hand.' I said 'When you say he threatened you, did he turn face you?' He said 'No, he just turned towards me and said something like .,don't fuck with me", that's when I saw the gun.' I said 'With your experience with guns are you able to distinguish between a real gun and a replica gun?' He said 'Up close I can but not from a distance, not from the distance I saw him.' I said 'So are you saying when you saw the gun you believed it was a real gun?' He said 'That's correct.' I said 'Can you describe this person's manner when he was speaking to Margaret?' He said 'He was very aggressive, he was making demands to Margaret.' I said 'Did he appear affected by alcohol?' He said 'No.' I said 'Did he appear to be affected by drugs?' He said 'No, he spoke quite well and didn't seem to be the type you would expect to hold up a service station.' CONTINUED I said 'Did you notice any tattoos he may have had on him?' He said 'No, I didn't see any tattoos.' I said 'Was there anything odd, or something that stood out about this person?' He said 'No, not really, other than, as I say, he didn't look real rough. He was quite well dressed.' I said 'To your knowledge, have you ever seen this person come into that service station before?' He said 'No, I have never seen him before.' I said 'Did anyone else come into the service.station, whilst he was there?' He said ~No.' I said 'Do you know how much money Margaret handed him?' He said 'No.' I said 'If this person had not threatened you with the gun, would you have shot him?' He said 'No, as I say, I shot because I was in fear for my life.' I said 'When you shot at this person, did you intend to hit him?' He said 'I didn't have time to think about it, I was in fear for my life and I shot instinctively. have time to aim or think.' I said 'Do you believe you are entitled to carry a loaded firearm?' He said 'Like I say, I just took it in to show Margaret.' I said 'Did you show Margaret your pistol?' He said 'No, I was just having my coffee when he came in.' I said 'Do you carry the pistol in a holster.' Me said 'No, just in my pocket. I am not a cowboy.' I said 'Were you aware if there was a security camera in 34 the service station?' He said 'Yeah, I knew there was a video camera.' I said 'Can you produce your pistol licence to me now?' He said 'Yeah, I have it here with me.' Me then produced the licence. I said 'Is this a current licence?' He said 'Yeah, it's current.' I said 'I have no further questions. Detective Collins, do you have any further questions you may wish to ask?' He said 'Yes.' And Collins then asked him a series of questions. you wish me to read them out? Yes. Collins then said 'Did you notice anyone else outside the service station, as he left?' He said 'No, I didn't see anyone else. only him.' Collins said 'Did you see any vehicles near by, as he commenced to leave?' He said 'No, I didn't see any vehicles in the driveway or anything.' Collins said ~Did you hear any vehicles take off fast just after the incident, or anything like that?' He said 'No, not that I can remember. I think, if anyone was waiting for him, he wouldn't have run back into the service station.' Collins said 'Do you know how far he ran out, after being shot?' He said 'It would have been a few feet. very far.' Collins said 'When he came back in, after being shot, was he talking all right?' He said 'Yeah, he was able to talk. I think he was in bit of a panic. He was bleeding pretty bad, so I told him to sit down and he stayed on the ground.' Collins said 'I don't have any further questions.' I then spoke. I said 'Kingsley, that completes this record of interview. At this stage, I do not intend to charge yo~" with any offences, as we have to make more queries about this matter. Do you understand that?' He said 'Yes.' G.O. BRENNAN XN A. No, I didn't personally, but that procedure normally takes place in the City Watchhouse. Can you estimate what his height is from your dealings with him. G.O. BRENNAN XN I would have thought about 5 foot 6. Is he as tall as you. No. Might I interrupt, so there is no conjecture in this case, we invite the Crown, we are quite happy for the Crown to have this done at some stage before the end of the Crown case and it can even be an agreed fact rather than having a guessing game about the whole thing. Yes, or alternatively I can perhaps lead 10 if he was measured that evening? Yes, whatever. Q. Did you obtain from the City Watchhouse any measurements that might have been taken that night. I haven't got them as yet, but I can make enquiries during the break. That can be agreed at a later stage. We will attend to that. NO CROSS-EXAMINATION NO FURTHER QUESTIONS WITNESS RELEASED JURY RETURNS 2.28 P.M. HIS HONOUR: I should have mentioned earlier that it will be necessary to move the court for tomorrow's hearing. For reasons I don't need to go into, this court has to be used because of the equipment in another trial. I'll try and make arrangements this afternoon to let you know and the ladies and gentlemen know where we have to go tomorrow. MS VANSTONE: Yes. We may need the equipment tomorrow HIS HONOUR: We'll have portable equipment--but this equipment can be used for people outside the court as well and we will have portable equipment brought in. I see. Thank you. Just going back to MS VANSTONE: Detective Brennan's evidence about the attempted recording of the video at police headquarters. Mr David and I have agreed that an agreed fact should be put before the jury on that topic and that is this: That due to a malfunction of equipment, no recording, either by video or audio tape, was made of the interview between Detective Brennan and the accused at police headquarters on 14 October. So that really just confirms the evidence he gave of course. HIS HONOUR: Ladies and gentlemen, you'll treat that again as an agreed fact in the same way as I mentioned that you can treat any agreed fact in this trial and I'll explain it again later to you. CONTINUED MS VANSTONE CALLS ROSS ALEXANDER JAMES MR DAVID: There's one agreed fact concerning Dr James' evidence which will save a lot of time and that is basically that the bullet caused the death. Save him giving evidence to that effect in detail. My learned friend agreed that, we will agree that. HIS HONOUR: It might be convenient if I read that out now. MS VANSTONE: It is that the deceased died as a result of the effects of a pistol shot wound sustained.a~-about 9.13 p.m. on Saturday, 14 October 1995 at premises at the corner of South Road and Richmond Road, Keswick. MR DAVID: That's so agreed. HIS HONOUR: Again, ladies and gentlemen, I'll mention those agreed facts to you later. EXAMINATION BY MS VANSTONE What is your occupation. I'm a forensic pathologist. And what does that mean. Pathology is the study of disease. My particular speciality, forensic pathology, is the study of injury and disease, with particular reference to its application to the law. My day-to-day work for the last 27 years has involved carrying out post-mortem examinations for the State Coroner. Q. And is another word for a 'post-mortem examination' an autopsy. A. Yes. Q. Do you have formal qualifications as a pathologist. A. Yes. I'm a legally qualified medical practitioner and I'm a Fellow of the Royal College of Pathologists of Australia. I'm employed as a forensic pathologist at the Forensic Science Centre and I also hold an appointment as senior clinical lecturer in forensic medicine at the University of Adelaide. Q. In relation to the matter before the court, do you have notes, photograph, plans, anything of that nature, to AT 2G R.A. JAMES XN which it would assist you to refer. A. Yes. PERMISSION TO REFER TO MATERIAL, MR DAVID NOT OBJECTING. Did you conduct the post-mortem examination of Dallis Milsom at the City Mortuary on 20 October 1995. Yes. What did you find the cause of death to be. Death was due to a left cerebral infarction or a stroke. That in turn was due to rupture of the left internal carotid artery. That in turn was due to a gunshot wound to the left side of the neck. artery which takes blood to the left side of the brain. Q. I'll come back to that. Was the body measured in terms of height and weight. A. Yes, he was 166 centimetres tall, but that, of course, was with no clothing or shoes on. And he weighed 77 kilograms. Q. Can you tell us what 166 centimetres translates to. A. 180 centimetres is six feet tall, so, not too sure, it's about five feet seven I think. Q. He'd spent a period in hospital prior to his death, had he not. A. Yes, he spent five days in hospital. I have seen the Royal Adelaide Hospital notes. He was,.according to those notes, admitted at 23.50 hours, which is about 10 minutes to midnight, on 14 October. His death was formally certified at 13 hundred hours, or 1 o'clock in the afternoon, of 19 October. It's about five days inside the hospital. Q. And there were signs, weren't there, of medical intervention on the body. A. Yes. Q. Various tubes and writing and so forth. A. Yes. Q. Could we 9o please to the sites of injury on the body and we have some photos ~f the left shoulder area. Looking at photos 27 and 28 of P2, there would appear to be three sites of injury in photo 27. The carotid artery is the -.~11 Indeed. In fact, apart from those three injured areas, there were no injuries on the body at all. Would you like some details of - Could you go to the first injury in point of time and tell us which one that is. Yes. As seen on photo 27 there are three holes on the top of the left shoulder and the adjoining neck. The one on the left is the gunshot entry wound. It was situated on the top of the left shoulder just behind the top, in other words, on the back of the top of his left shoulder. That's the gunshot entry wound. The .... projectile has passed through the soft tissues underneath the skin before coming out again on the adjoining exit wound, which is on the front of the left shoulder. It has then travelled across the skin to re-enter the body in the lower left neck, below and behind that left ear. The point between the exit wound and the re-entry wound is marked by a series of transverse scratch marks. Were they actually made by the projectile as it travelled that path. Yes, I believe that the projectile, spinning in its own axis, as its passed across the skin, has left these little transverse marks, which look rather like railway sleepers on a railway line. It's noticeable that those three holes, the entry, the exit and the re-enter into the neck, form a straight line. Just pausing there for a moment, the re-entry wound on the neck, has the appearance of that been altered by medical intervention. Yes, there's a record in the hospital notes that I think explains that. The wound has been explored by the doctors after he was admitted to the hospital. You say that the line was a straight one, the line which the projectile took. How would could you determine that. Well, I mean, you simply have to look at the photograph and you can make it into a straight line without any difficulty. But in terms of depth in the body as well, you can't really tell that from the photograph. No, but, in fact, they accommodate a straight line very well. Indeed, I think there's no reason to think they didn't adopt a straight line, the projectile hasn't bounced off any bone for instance. Q. Do the position of the wounds, all three of them, say anything about the position of the deceased relative to the fire of the gun when the gun was discharged'.- A. Yes, that's a big question and yes, they do. The first thing is that the position of the deceased at the time the shot was fired is not demonstrated on the videotape and therefore the position of the deceased at the time the shot was fired has to be subject to some interpretation and that can be made either by the characteristics of the wound and/or reconstruction attempts at the scene. With regard to the position of the deceased at the time the shot was fired two things are quite clear. MR DAVID: Can I raise a matter. Sorry, this has to be in the absence of the jury. It will only be for five minutes. HIS HONOUR: Yes. Ladies and gentlemen, Mr David wishes to advance a legal argument which is best I wonder if you could excuse us say for five minutes. JURY LEAVES COURT 2.39 P.M. MR DAVID: Dr James can stay, there's no need for - I'm just slightly nervous. Dr James just said that certain things can be said about the position of the body by looking at the wound or the reconstruction at the scene. Now, I assume, out of an abundance of caution, that this evidence is going to be confined to ~" the former and will not involve the latter. If it is, I would like to argue the matter. MS VANSTONE: It's going to involve the latter in one sense but certainly at this stage I was really seeking to obtain evidence from Dr James divorced from the scene. I was simply asking for the relative position of the deceased and the firing of the gun. Later on, it may be that I ask Dr James about whether what he's said in terms of position is consistent with someone turning left out a door and so forth. But certainly haven't got to that point at this stage. I'm not asking Dr James to draw any conclusions that are really conclusions for the jury about the scene. HIS HONOUR: I think, Mr David, in view of..~hat explanation, Dr James would have heard your objection. MR DAVID: HIS HONOUR: If Ms Vanstone is presently confining her questions as she says in relation to his observations of the wound, then Dr James will understand that in giving his answers. MR DAVID: Exactly. I don't want to do Dr James a disservice, but my learned friend just mentioned something that makes me more nervous, for instance - and it's best to sort this out now - if Dr James is going to get into the area of whether he might have been going around a door or whatever, I object to that. That's a matter for the jury. Dr James, in my submission, should be confined to a medical opinion concerning the wounds, as to the track of the wound and the position of the body. The choreography at the scene itself, as to where he might have been going, they are jury matters in my submission. HIS HONOUR: They may be but we have to wait upon the question for that, don't we? MR DAVID: The jury is not here now and I think we should test that now rather than kicking them out again, rather than working in the dark. HIS HONOUR: I appreciate that but no ground so far has been laid for any of those questions, it's very difficult to rule in advance of the question itself. MR DAVID: Perhaps my learned friend might treat this as a voir dire and might just let us know what question she's going to ask in the nature of what's concerning me. I won't ask her to do that, I don't think, unless she volunteers to do it. Otherwise she's entitled to lead her evidence in an orderly fashion. She'll come to that, if it needs. If it does, it's asking the jury to leave, that has to happen, I think, but Ms Vanstone may volunteer to tell us. MR DAVID: Your Monour, the defence are at a disadvantage, they jump up halfway through a.q~estion to -.~1 Dr James on the basis we might have something to hide. I am concerned that my learned friend's questions are going to go outside what I say is the parameter of this expert's evidence. Irrespective of what his thoughts might be, but in relation to the evidence he might properly give, my learned friend has hinted that she might, that's all she's done, but I would like her to fill out that hint a bit and tell us what she's going to do. Surely we are entitled to know that at this stage. Dealing with it one by one. may volunteer to tell us. I'm happy to say. Once we've got the aims and so forth, certainly I wish to ask Dr James whether the track is consistent with the deceased turning left, as, for example, going out through a door. And whether the suggestion of a raised shoulder is consistent with someone turning to go out through a door, turning to his left to go out through a door. I don't think it's going to go much further than that. Certainly I think I'm entitled to put to Dr James specific positions accommodated by the evidence of where the track of the bullet was. HIS HONOUR: Very cunning question. I mean, are we "' talking as going out through a door or asking the doctor as going out through this door? It's an important distinction. If it's the latter, then, of course, Dr HIS HONOUR: will be necessary to move the court for tomorrow's hearing. For reasons I don't need to go into, this court has to be used because of the equipment in another trial. I'll try and make arrangements this afternoon to let you know and the ladies and gentlemen know where we have to go tomorrow. MS VANSTONE: as well. HIS HONOUR: equipment can be used for people outside the court as well and we will have portable equipment brought in. MS VANSTONE: Detective Brennan's evidence about the attempted recording of the video at police headquarters. Mr David and I have agreed that an agreed fact should be put before the jury on that topic and that is this: That due to a malfunction of equipment, no recording, either by video or audio tape, was made of the interview between Detective Brennan and the accused at police headquarters on 14 October. So that really just confirms the evidence he gave of course. HIS HONOUR: Ladies and gentlemen, you'll treat that again as an agreed fact in the same way as I mentioned that you can treat any agreed fact in this trial and I'll explain it again later to you. CONTINUED MS VANSTONE CALLS ROSS ALEXANDER JAMES MR DAVID: There's one agreed fact concerning Dr James' evidence which will save a lot of time and that is basically that the bullet caused the death. Save him giving evidence to that effect in detail. My learned friend agreed that, we will agree that. HIS HONOUR: It might be convenient if I read that out now. It is that the deceased died as a result of the effects of a pistol shot wound sustained.a~-about 9.13 p.m. on Saturday, 14 October 1995 at premises at the corner of South Road and Richmond Road, Keswick. MR DAVID: That's so agreed. HIS HONOUR: Again, ladies and gentlemen, I'll mention those agreed facts to you later. EXAMINATION BY MS VANSTONE What is your occupation. I'm a forensic pathologist. And what does that mean. Pathology is the study of disease. My particular speciality, forensic pathology, is the study of injury and disease, with particular reference to its application to the law. My day-to-day work for the last 27 years has involved carrying out post-mortem examinations for the State Coroner. Q. And is another word for a 'post-mortem examination' an autopsy. A. Yes. Q. Do you have formal qualifications as a pathologist. A. Yes. I'm a legally qualified medical practitioner and I'm a Fellow of the Royal College of Pathologists of Australia. I'm employed as a forensic pathologist at the Forensic Science Centre and I also hold an appointment as senior clinical lecturer in forensic medicine at the University of Adelaide. Q. In relation to the matter before the court, do you have notes, photograph, plans, anything of that nature, to R.A. JAMES XN which it would assist you to refer. A. Yes. PERMISSION TO REFER TO MATERIAL, MR DAVID NOT OBJECTING. Did you conduct the post-mortem examination of Dallis Milsom at the City Mortuary on 20 October 1995. Yes. What did you find the cause of death to be. Death was due to a left cerebral infarction or a stroke. That in turn was due to rupture of the left internal carotid artery. That in turn was due to a gunshot wound to the left side of the neck. artery which takes blood to the left side of the brain. Q. I'll come back to that. Was the body measured in terms of height and weight. A. Yes, he was 166 centimetres tall, but that, of course, was with no clothing or shoes on. And he weighed 77 kilograms. Q. Can you tell us what 166 centimetres translates to. A. 180 centimetres is six feet tall, so, not too sure, it's about five feet seven I think. Q. He'd spent a period in hospital prior to his death, had he not. A. Yes, he spent five days in hospital. I have seen the Royal Adelaide Hospital notes. He was,.according to those notes, admitted at 23.50 hours, which is about 10 minutes to midnight, on 14 October. His death was formally certified at 13 hundred hours, or 1 o'clock in the afternoon, of 19 October. It's about five days inside the hospital. Q. And there were signs, weren't there, of medical intervention on the body. A. Yes. Q. Various tubes and writing and so forth. A. Yes. Q. Could we 9o please to the sites of injury on the body and we have some photos ~f the left shoulder area. Looking at photos 27 and 28 of P2, there would appear to be three sites of injury in photo 27. The carotid artery is the -.~11 Indeed. In fact, apart from those three injured areas, there were no injuries on the body at all. Would you like some details of - Could you go to the first injury in point of time and tell us which one that is. Yes. As seen on photo 27 there are three holes on the top of the left shoulder and the adjoining neck. The one on the left is the gunshot entry wound. It was situated on the top of the left shoulder just behind the top, in other words, on the back of the top of his left shoulder. That's the gunshot entry wound. The .... projectile has passed through the soft tissues underneath the skin before coming out again on the adjoining exit wound, which is on the front of the left shoulder. It has then travelled across the skin to re-enter the body in the lower left neck, below and behind that left ear. The point between the exit wound and the re-entry wound is marked by a series of transverse scratch marks. Were they actually made by the projectile as it travelled that path. Yes, I believe that the projectile, spinning in its own axis, as its passed across the skin, has left these little transverse marks, which look rather like railway sleepers on a railway line. It's noticeable that those three holes, the entry, the exit and the re-enter into the neck, form a straight line. Just pausing there for a moment, the re-entry wound on the neck, has the appearance of that been altered by medical intervention. Yes, there's a record in the hospital notes that I think explains that. The wound has been explored by the doctors after he was admitted to the hospital. You say that the line was a straight one, the line which the projectile took. Yes. How would could you determine that. Well, I mean, you simply have to look at the photograph and you can make it into a straight line without any difficulty. But in terms of depth in the body as well, you can't really tell that from the photograph. No, but, in fact, they accommodate a straight line very well. Indeed, I think there's no reason to think they didn't adopt a straight line, the projectile hasn't bounced off any bone for instance. Q. Do the position of the wounds, all three of them, say anything about the position of the deceased relative to the fire of the gun when the gun was discharged'.- A. Yes, that's a big question and yes, they do. The first thing is that the position of the deceased at the time the shot was fired is not demonstrated on the videotape and therefore the position of the deceased at the time the shot was fired has to be subject to some interpretation and that can be made either by the characteristics of the wound and/or reconstruction attempts at the scene. With regard to the position of the deceased at the time the shot was fired two things are quite clear. MR DAVID: Can I raise a matter. Sorry, this has to be in the absence of the jury. It will only be for five minutes. HIS HONOUR: Yes. Ladies and gentlemen, Mr David wishes to advance a legal argument which is best I wonder if you could excuse us say for five minutes. JURY LEAVES COURT 2.39 P.M. MR DAVID: Dr James can stay, there's no need for - I'm just slightly nervous. Dr James just said that certain things can be said about the position of the body by looking at the wound or the reconstruction at the scene. Now, I assume, out of an abundance of caution, that this evidence is going to be confined to ~" the former and will not involve the latter. would like to argue the matter. It's going to involve the latter in one sense but certainly at this stage I was really seeking to obtain evidence from Dr James divorced from the scene. I was simply asking for the relative position of the deceased and the firing of the gun. Later on, it may be that I ask Dr James about whether what he's said in terms of position is consistent with someone turning left out a door and so forth. But certainly haven't got to that point at this stage. I'm not asking Dr James to draw any conclusions that are really conclusions for the jury about the scene. HIS HONOUR: I think, Mr David, in view of..~hat explanation, Dr James would have heard your objection. MR DAVID: HIS HONOUR: If Ms Vanstone is presently confining her questions as she says in relation to his observations of the wound, then Dr James will understand that in giving his answers. MR DAVID: Exactly. I don't want to do Dr James a disservice, but my learned friend just mentioned something that makes me more nervous, for instance - and it's best to sort this out now - if Dr James is going to get into the area of whether he might have been going around a door or whatever, I object to that. That's a matter for the jury. Dr James, in my submission, should be confined to a medical opinion concerning the wounds, as to the track of the wound and the position of the body. The choreography at the scene itself, as to where he might have been going, they are jury matters in my submission. HIS HONOUR: They may be but we have to wait upon the question for that, don't we? MR DAVID: The jury is not here now and I think we should test that now rather than kicking them out again, rather than working in the dark. HIS HONOUR: I appreciate that but no ground so far has been laid for any of those questions, it's very difficult to rule in advance of the question itself. MR DAVID: Perhaps my learned friend might treat this as a voir dire and might just let us know what question she's going to ask in the nature of what's concerning me. HIS HONOUR: think, unless she volunteers to do it. Otherwise she's entitled to lead her evidence in an orderly fashion. She'll come to that, if it needs. If it does, it's asking the jury to leave, that has to happen, I think, but Ms Vanstone may volunteer to tell us. MR DAVID: disadvantage, they jump up halfway through a.q~estion to -.~1 Dr James on the basis we might have something to hide. I am concerned that my learned friend's questions are going to go outside what I say is the parameter of this expert's evidence. Irrespective of what his thoughts might be, but in relation to the evidence he might properly give, my learned friend has hinted that she might, that's all she's done, but I would like her to fill out that hint a bit and tell us what she's going to do. Surely we are entitled to know that at this stage. HIS HONOUR: may volunteer to tell us. I'm happy to say. Once we've got the aims and so forth, certainly I wish to ask Dr James whether the track is consistent with the deceased turning left, as, for example, going out through a door. And whether the suggestion of a raised shoulder is consistent with someone turning to go out through a door, turning to his left to go out through a door. I don't think it's going to go much further than that. Certainly I think I'm entitled to put to Dr James specific positions accommodated by the evidence of where the track of the bullet was. HIS HONOUR: Very cunning question. I mean, are we "' talking as going out through a door or asking the doctor as going out through this door? It's an important distinction. If it's the latter, then, of course, Dr James can't really answer that because whether a person is going out the door is a matter for the jury and depends where the door is. As for the former, it's unnecessary. Turning to the left going out a door or greet his mother, makes no difference, it's the position he's in. HIS HONOUR: The question of whether or not the gunshot wound - and Dr James, I expect, has seen hundreds of gunshot wounds - is consistent with a person travelling at right angles to the person who shot, that Perfect. Not an argument, that's what he's here for. HIS HONOUR: The second question would be whether it's consistent with the shoulder being raised at the time. MR DAVID: Not a problem. It probably doesn't matter much whether the question addresses whether he's going through the door or not. MR DAVID: HIS HONOUR: MR DAVID: That's a matter for the jury. It's a matter of very fine distinction. It's a matter of fundamental distinction in this case and there will be certain submissions which will be put on that which, in a sense, takes it out of Dr James - HIS HONOUR: Are you satisfied with the questions of the kind I mentioned? MS VANSTONE: I'm satisfied to throw in 'a door'. I've got no reason to lead any evidence about this scene and Dr James' visit there. But an example of a person turning to go through a door seems to me to be pretty colourless really. The point is that's up to the jury, that's something that's open to them. Whether it's going down a step or going through a door or going around a car, whatever it is, I'm simply bringing it closer to what might be a scenario in this case. HIS HONOUR: You need to establish, do you not, that the angle of entry is consistent with - you may wish to establish that the angle of entry is consistent with the deceased moving towards the west effectively if the person who is holding the gun was south of him, that would get you towards the door, wouldn't it, without using the word 'door'? MS VANSTONE: Yes, what's the point? Why can't we talk about 'the door'? We all know the door is there with respect. Mr David is trying to make it so vague it's meaningless to the jury. MR DAVID: What concerns me in this case~-~we've been on the view, this cannot, in any way, be hinted at evidence, that a manoeuvre to the left will get him out the door. It's very much a live issue in this case and a matter for the jury. MS VANSTONE: He's heading for the door on video. HIS HONOUR: Mr David I think is asking us not to assume that's the next frame in the video. MS VANSTONE: 'Turn a corner'. That would seem to be neutral enough. Yes. We could use 'turn a corner'. This is not being done for laughs. I'm sure it's not. Going to be a very cogent argument put, I think, as to whether - the part the door plays in this trial. MS VANSTONE: With respect, if I sought to, I could lead from Dr James he went to the scene, he saw the video, saw the position where the accused was standing, that a laser beam was pointed at the position of the door and that he came up with a position which was consistent with the track which was close to the door. I mean, there's nothing wrong with that. HIS HONOUR: No, but, in any event, you're satisfied ~- Now it's been raised, perhaps I press to to lead evidence of a person turning - MS VANSTONE: go a bit further. I wasn't going to, but if we are going to be finicky about doors, why don't we embark on this more specific evidence because Dr James has been to the scene. HIS HONOUR: Are you saying you're going to lead that evidence? MS VANSTONE: I am now. I've made a decision on my feet that I press to lead evidence and I'll set it out for your Honour because it's - HIS HONOUR: Has Mr David been given notice of it? Yes, he knows about it. I do not. About this evidenC~that Dr MS VANSTONE: MR DAVID: James is going to give an opinion about whether he was going out the door, a laser beam? It's not about whether he's going out a door. Evidence in relation to the demonstration of a laser beam. Yes, it's Dr James at the scene with the police, one police officer assuming a position where the accused was, as satisfiedby the video, and a police officer in the area of the doorway, with Dr James placing a biro back towards the person who is in the position of the accused and it's in photograph A of P2, it's the last photo in that set. In fact, you can't really see the laser beam but it doesn't matter. The point is - Are you going to prove that around the HIS HONOUR: fact of the height of the people and all that sort of thing? MS VANSTONE: this is the very spot where the deceased must have been but it's in that line, that's all. HIS HONOUR: What's the purpose of the evidence, to establish that the deceased would have been standing somewhere in that line? And facing in that direction. MS VANSTONE: HIS HONOUR: MS VANSTONE: We know, of course, he's not standing in view of the video, so he's beyond the video line, and then, from there on, yes, he could be standing anywhere along that line, so this is a possible position in which the deceased was when he was hit. There's nothing wrong with that. I mean, I wasn't going to go into this, quite frankly. HIS HONOUR: MS VANSTONE: MR DAVID; talking about. MR DAVID: HIS HONOUR: statement? MS VANSTONE: Are you asking to call the evidence now? Yes. I'm not quite sure what my friend is Are we now going to have evidence of a reconstruction, Dr James going down there, doing. all this sort of thing? That's right. I'd like a statement to that effect. It's in Mr DeLaine's statement, a description of what was done. I'd like a statement from Dr James too. Can you first identify Mr DeLaine's Bottom of p.6 it starts. It's in the process of that same exercise that this video was run and photo A is a still off that video. Just looking at that photograph, of course, no-one would have particularly realised that it was taken at that scene. I think you said earlier that it was. I'm not sure whether I did or not. I think when you introduced Exhibit P2 you mentioned the last photograph had been the photograph to which Dr James may refer. Yes, it's Dr James' arm, I may have said that. I'm not sure whether I said it was at the scene or not. I understood it to be. Certainly one might infer, I don't know the jury necessarily would. The jury have heard no evidence in relation to that I don't think. That's right, but it doesn't matter R.A. JAMES XN because Dr James was there. I'm not arguing with you. That's right. That photograph I was only able to lead as demonstrating the entry approximately into the body, its a useful photograph for that position. There you are Mr David, Ms Vanstone says that you have the information in Mr DeLaine's statement. What we are going to have now, because of an objection I made, is 'At 1 p.m. on Monday, 23 October 1995' - this was never going to be led.~in this trial - ~I attended the Caltex Service Station', et cetera, then we had the re-enactment, which has been videod, never going to be led, never seen a video, never been supplied, never been set up. That might be right. Ms Vanstone says she's going to do it. If you want time you can have time. MR DAVID: HIS HONOUR: MR DAVID: My word we do want time. Is that your application now? No, I would like, if that's it, I would then like - I think we are going to have a voir dire on this to see whether it's admissible, to see whether it's a demonstration or proper evidence before the court. HIS HONOUR: Do you want time to think about it before you make your application? MR DAVID: I want a statement from Dr James as to what he says he did. I would like to see that video. I would like the Crown to present all their material on this area of evidence they were not going to lead and have not led until halfway through this trial. HIS HONOUR: Haven't led it at all. MR DAVID: Not seeking to lead until halfway through this trial because I dared argue about certain aspect of the evidence. HIS HONOUR: Let me just understand your application and we will deal with it. You want the statement from Dr James. MR DAVID: HIS HONOUR: MR DAVID: other people. HIS HONOUR: Yes. You want the video. The video and statements from all the Statements from all those who took part. HIS HONOUR: Do you want Mr DeLaine recalled? MR DAVID: I don't know yet. You may want him. I haven't got a clue, I don't know what my tactics will be. I will have to think about it. HIS HONOUR: Do you want the matter adjourned? MR DAVID: Yes. My learned friend can continue as far as she can go, I don't mind that, but I certainly don't want that evidence being led until I've got all of that. HIS HONOUR: You want Dr James'-evidence to go no further than all of his evidence except that? MR DAVID: I've no objection to Dr James giving that evidence which I thought he was going to give. But it might be intertwined with the other, I don't know. Another alternative is to take Dr James' evidence on the voir dire now. HIS HONOUR: Mr David is entitled to see all this, isn't he? Take Dr James' evidence on the voir dire. He's got Mr DeLaine's statement. If there's any other statement, no doubt it's available. He wants to see the video. Wouldn't he want to see that before he cross-examined on the voir dire? Instead of going out and getting a new statement from Dr James, why don't I lead the evidence and he's got it. The video is available. We can do all these things. HIS HONOUR: evidence? MS VANSTONE: HIS HONOUR: Do you wish to persist with the Of which? Of the re-enactment. MS VANSTONE: yes, I do. H I S HONOUR: evidence? MS VANSTONE: HIS HONOUR: If I'm not allowed to refer to doorways, Do you wish to persist with the Yes. You lead your evidence. Are you happy to deal with it on the voir dire now Mr David or would I would prefer to see a statement, then MR DAVID: I would ask questions on the voir dire. MS VANSTONE: I suggest we proceed with the.e~idence now, less that reconstruction. Adjourn after that time. See what position we reach at the end of examination-in-chief. HIS HONOI/R: That's unsatisfactory to Mr David, isn't MS VANSTONE: I can't see it disadvantages him. HIS HONOUR: But you would be insisting in calling the evidence. It would depend how the evidence came out, whether I thought there was anything additional to be gained. We have sort of done this in advance and your Honour foreshadowed a difficulty with that. We haven't reached the point where I've asked those questions. Dr James hasn't given his answers. talking in a bit of a vacuum. That seems to accord with your suggestion, Dr James goes as far as he goes. Yes. I've got the threat hanging over my head, we cross-examine too vigorously, we get all this other stuff. I don't understand you'll be cross-examining at all. Or if the evidence doesn't come out right. Just deal with it. MR DAVID: It's a most extraordinary application, here is a whole body of expert evidence. HIS HONOUR: It's not her application, it's yours. No, to have the re-enactment. HIS HONOUR: We are dealing with Dr James' evidence to which you've taken an objection, which we've dealt with. In that objection you foreshadowed a further objection, which I thought we dealt with, but Ms Vanstone thought, having regard to your objection, she will call other evidence, which she will tell you in advance she will call. You have told me if sheis to call that evidence you will want sometime in relation to it. I understand that. All we can do is deal with the evidence of which you've had warning and if Ms Vanstone then persists with this further evidence of which you've not had warning, I'll give you time. MR DAVID: Yes, provided Dr James can give that evidence by keeping the two separate. He's going to be asked to give an opinion I assume. It might well be he has to rely on the re-enactment. HIS HONOUR: I won't instruct him to give his evidence, he has sat here and listened to the debate and he will well understand, I would think, his evidence is being confined at the present time to his observations, apart from his observations in relation to re-enactment. MR DAVID: Yes. Are you satisfied with that? Yes. This is not re-enactment evidence, it's a calculation made by Dr James, that's what we are talking about. R.A. JAMES XN JURY RETURNS 3 P.M. Can we go back to your evidence that the three wounds What angle did they make to were in a straight line. the horizontal. Yes, as you say, the three wounds, the entry, the exit A. and the re-entry appear, as in photograph 27, to create a straight line. I see no reason at all why they don't represent a straight line. On the assumption that they do represent a straight line, with the entry wound behind that left shoulder (INDICATES), two things can be 10 said. The first is that, if they do represen~a. straight line, the angle has come, not straight across the top of the left shoulder, not all the way back from the left shoulder, but at a point 50 degrees from the horizontal (INDICATES), 50 degrees backwards. If you like, I can draw that in on photograph 27. In addition, they are not travelling absolutely horizontal to the ground. They are, in fact, passing downwards, at an angle of 18 degrees to the horizontal. If it was all the way down, vertical, it would be 90 degrees. This is about a quarter of that (INDICATES). That is, if the deceased was standing in the normal position, as I am now, with this shoulder sloping slightly downwards (INDICATES). I can summarise that again by saying the wound track has crossed his left shoulder, before entering his neck. It has passed from behind, at an angle of 50 degrees, backwards. And slightly downwards, at an angle of 18 degrees to the horizontal. Q. You are saying 'downwards', is the bullet travelling upwards, or downwards at 18 degrees. upwards. A. Obviously the projectile would have to be travelling MS VANSTONE: I wonder whether Dr James could demonstrate, on a member of your Honour's staff perhaps, or my junior or someone, more specifically and closer to"- the jury those two angles on the body? HIS HONOUR: Do you have any objection to that, Mr David? MR DAVID: HIS HONOUR: HIS HONOUR My tipstaff has volunteered. Come into the well of the court and if you would demonstrate on my tipstaff the angles that you have mentioned to the ladies and gentlemen of the jury. Certainly. There is the left shoulder (INDICATES). We have three holes. We have an entry wound behind the fleshy part of the top of the left shoulder (INDICATES), an exit wound immediately adjoining that (INDICATES), Q. and a re-entry wound in the left side of the..neck, below -.,11 his left ear (INDICATES). These three holes form a straight line (INDICATES). If that is a straight line, as I believe it to be, the shot has not come from straight along his ieft shoulder. It has not come from straight behind him. It has come from an angle of about 50 degrees. In addition, it is not travelling horizontally. To make those three holes line-up, the angle is about 18 degrees of the 90 degrees available. So, the projectile, if he was standing straight up, as the tipstaff presently is, it is to be coming upwards and from behind, like that (INDICATES). If you assume that the projectile was, in fact, travelling horizontal to the ground, what position would the tipstaff need to assume to accommodate that. He has to have his shoulder elevated and his right shoulder, in addition, may or may not be depressed, but certainly his left shoulder has to be elevated to allow a horizontal path to accommodate those three holes. WITNESS RETURNS TO WITNESS BOX Q. Are you able to say anything from the wounds as to where the man's head was facing, when he was hit. A. No. Q. Are you able to say anything about where his hands or arms were. A. No. Q. The wound track, I suppose it is consistent with a man being in motion or still, is it. Yes. But, if he is still, he is in a funny position. He is in the position described. Is the raising of the left shoulder consistent with a person turning to the left. It is one explanation. If the person was travelling quickly and went to make a left turn, for instance, out a door, taking a right angled turn to the left to go out a door, would that It could. It is consistent with it. Yes. And other things. There may be other explanations. Are you able to comment, from a medical viewpoint, I mean, on the relative likelihood of other explanations. No, I don't think I have any particular reason to favour one piece of choreography above another. If a person makes a left turn, does that tend to make their left shoulder go up. It can. One can swing out a door and, if one turns acutely one way, duck out a door, as one turns, the shoulder girdle may be raised on the left side, if one is executing a left turn. Would that be more pronounced if that person was moving quickly. If one is not moving quickly, one doesn't need to duck out the door. Taking you to photograph A in that same booklet in front of you, is that your left arm that we see to the right of the photo. Yes. You seem to have a pen or pencil in your hand. A probe, yes. Are you there making a similar demonstration to the one you made using Mr tipstaff a moment ago. Yes. The person on whom you are demonstrating seems to have his shoulder slightly lifted· I required that the person do that, because it was necessary to raise the left shoulder in order to make a horizontal path for the projectile and the resultant three holes. In the same way that you did a few moments ago. Yes. One thing I should have asked you about this wound track; did the projectile hit anything inside.~he body, which would have deflected it at all up, down or anywhere. A. Not in the shoulder. Once the projectile enters the neck, it has found its way variously in front of the back bone, under the jaw, crossing the nasopharynx, behind the nose and eventually it has found its way up next to the right eye. I certainly don't mean to imply all that was a straight line. I am just talking about the three wound sites. When you performed your post mortem, did you take samples of blood, for alcohol and drug analysis. I did. I didn't require them to be tested because of the five day interval between his admission to hospital and his death. What I did was request that the hospital admission samples be collected so that they could be analysed. CROSS-EXAMINATION BY MR DAVID Looking at Exhibit P12, the group of photographs of the stills. Yes. Going to photo A92. I have it. Looking at 93, I think that tells us that that is the last still photo from the video in which the deceased i~' in view. Quite so. His position there, I take it, what I mean by 'his R.A. JAMES XXN position', it is not necessarily his position in the shot, but his stature there, that could not accommodate this wound. No, if that were the position, the projectile would have passed harmlessly through his shoulder from behind, forwards. So, at some stage after that position he has had to have somehow turned his body to the left, is that correct· Presented his left shoulder, yes. And to do that he would had to have turned to the left. Clearly so. In turning to the left, would it be correct to say that1 the wound or the track of the wound is accommodated by happening part way through a turn. Yes. So it could be the situation, or it is consistent with the medical evidence that, part way through a turn to the left, that's when the bullet hits him. Yes. _j Irrespective of what that turn is for. Yes. In turning to the left, your medical opinion is not in any way, or doesn't in any way press upon the question of where his right arm is, is that right· I have specifically mentioned as such in my report, because I recognise the significance of that. That is something you put your mind to specifically, because of the nature of this case. Yes, and it is why I think I said that I have no reason to favour any particular position of his right arm, at the time the shot was fired, above any other position. So, his right arm could have been out in front of him. Could have been. Could be swinging around to the left, out in front of him. I have said as much. That is perfectly consistent with the track of that bullet· Yes. So medically speaking, it is consistent with the deceased being hit while swinging around to the left with the gun in front of him, is that so. A. Yes. RE-EXAMINATION BY MS VANSTONE Consistent with that, but how far could he have swung before he was hit. The projectile is travelling much faster than he is. Sergeant De Laine could tell you approximately the speed of this projectile, but if it is something of--.t-he order of 1 thousand feet per second or so, it is clearly much faster than he is moving. So the position he was when the shot was fired was the same as the position he was when he was hit. And, as illustrated on the tipstaff, or indeed in the photograph, that was the position he was in when the shot was fired and when he was hit. hasn't had time to change his position much between those two events. Now, what he was actually doing in the course of that manoeuvre is not for me to say. Q. I am not asking you to speculate on what he was doing, but you agreed that he could have been in the process of swinging round, to do a turn, in other words, to swing round, back towards the way he had come from. All I am asking you to say is how far did he get, if he was involved in that manoeuvre. A. About halfway. NO FURTHER QUESTIONS WITNESS RELEASED M.T. ROWE XN Can you describe how he moved. He walked quite quick, from memory. Did he say anything from the time he said 'I mean it' to the time that the shot was fired. I can't recall that, I don't think he did. didn't hear it. Just going back a step, when you were getting the notes Out of the till were you conscious of a robber being fidgety or anything like that. No, I wasn't. I was certainly conscious of him being there. I was just conscious of him being the~e-and thinking 'He can just throw that knife,' and I can remember thinking 'It will go straight through me, the blade will come out the back of me if he throws it.' But you weren't conscious of him speaking further to No, I wasn't conscious of that. Or looking at his watch or finger. And I think you said he seemed fairly calm. Did you get any impression, from smell or sight, as to whether he had been drinking alcohol at all. A. I didn't get the impression that he had been drinking, no. Q. Anything unusual about his mannerisms or anything like that. OBJECTION Mr David objects. QUESTION ALLOWED Can you estimate how long it was that the robber was standing there at the counter. It seemed to be, it was like it was in slow motion, it seemed to be forever. I could have sworn it would have taken me, you know, two minutes to find that 'no sale' button. Everything seemed to be going very slowly. So my concept of time would have been, you know, totally .... disorientated. Q. You said you heard a shot. A. Yes. What happened then. I heard a scream. Sorry, you did say that. Yes, then I realised it was me. And then. Then I think I looked back at the counter, or I continued to ring, I'm not sure, I'm not sure, all I remember is the next time I looked up at the counter he was back again, this time bleeding from the nose and head. I think he had a stain on his jumper· And did he say something. Yes, he said words to the effect 'Am I bleeding?' or 'Is this my blood?' or something like that. Did you see Kingsley at about this time. Yes. What was he doing. As I recall, Kingsley was shaking his head or acting in disbelief· And what did you do. I think, I said to Kingsley 'Take him into the bathroom, get some cold water on his forehead.' I don't know why I said it. Probably bleeding from the nose it is probably instinctive to put cold water on someone's forehead· And then what. Kingsley said to me 'Call an ambulance' and I can remember saying to him 'Take him into the bathroom and get some cold water on him.' And Kingsley very loudly saying to me 'Call an ambulance.' Was the robber saying anything through this. Not to my recollection· Still standing during this. As I recall, yes. What did you then do. I dialed triple O. And got on to someone· I got on to somebody, not realising of course that you have to ask for police, ambulance or what have you. I M.T. ROWE XN just, you know, shouted into the phone 'Get an ambulance She said 'Just calm down, we'll put you through.' Having given the appropriate directions, what did you do. I think, I think I went outside and got some paper towel from the driveway. I was hoping to stem the flow of blood. As you went outside did you see some items near the doorway. Not as I went outside, as I came back in I did. What did you see. I saw a gun, and a knife and the bag. The same bag that you had handled earlier. Yes. The same knife that had been pointed at you earlier. Yes. What about the gun, had you seen that. The first time, the first time I had seen the gun was there laying on the floor and I was confused as to what it was doing there, I wasn't aware he had a gun. You went back inside and did you - I got down on the floor with him and I took off his hat and I told him it would be okay, that the ambulance was coming soon and he'd be okay. Was he saying anything. He was saying 'Help me' and moaning and I can't recall what I did with the paper towel but I think, I think I put it over his nose and then I think I thought 'Well, you know, I could be doing more harm than good, he might be drowning here.' I just didn't know what to do. And anyway did you comfort him as best you could. As best I could. Until the ambulance arrived. Yes, I don't know that I was much comfort but as best I could, yes. Q. You said that you couldn't remember hearing him say anything after 'I mean it' up until the time of the gunshot. I want to ask you this specifically, do you have any recollection of him calling out or saying 'Don't fuck with me.' I - I have actually no recollection of it although he could have said it. You have told the ladies and gentlemen that the knife was in one hand or the other, you don't know which, during the robbery. Do you know whether or not there was anything in the other hand. No, I don't know. You didn't notice anything. No, I didn't notice anything, I seemed to be fixated on this blade. After the gunshot at some stage did you see a weapon that Kingsley had. That Kingsley had? Yes. I can't recall seeing Kingsley's weapon. I ma~ have seen it, I just can't recall. Had you ever had any conversations with Kingsley about firearms. Not specifically about firearms. I do remember we had a display coming to the service station of cigarette lighters and there were hand grenades in guns and you know just novelty little things and I can remember he said something about, you know, taking one home for his collection, something like that, and that's about - I think I said to him 'Do you collect cigarette lighters, do you?' I somehow recall that from that conversation I understood that he collected guns. Had he ever shown you a gun. I don't recall him ever showing me a gun. And on this night then he hadn't shown you that one he had ..... And as at the time the robber came in how long do you think Kingsley had been in the service station. Well, just long enough to make himself a cup of coffee. I don't know, five minutes, I don't know really· CROSS-EXAMINATION BY MR DAVID On that night, as far as work was concerned, you were totally alone, is that right. Yes. Are there any shops in the area which are inhabited by people on a Saturday night. Not on a Saturday night, no. Or any premises that are inhabited by people. Not that late at night, no. Other than Kingsley coming in, before that had you been alone for some time before he came in. Are you asking me if there were any customers? Yes. I can't remember, I do remember it was a slow night. So a lot of the night you would have been quite alone, is that right. When you say a lot, a slow night at Keswick could be one customer every 10 minutes. When you were confronted with this man and when you'd given him the money and then he'd left, was it as he was leaving that you turned to attempt to dial the phone. Yes, it was. And when you were attempting to dial the phone were you standing do you think. A. I was standing, yes. In a sense turning away from the direction he was going and trying to muck around, mess around with the phone, is that right. A. That's right. And that was, although time is very difficult of course, that was before you heard the shot. Yes. So we have you dialing or attempting to dial the phone, .... approximately the same time as he is moving out, and then you hear a shot, is that right· Yes. Did you at any stage see or hear this man go around the corner and confront Kingsley. I didn't. I'm not saying it didn't happen, I didn't see And similarly you didn't hear any conversation, confrontation between he and Kingsley. No. But that's in the same category, that might have happened but - It could well have happened. But because of the movement of the events you._eouldn't tell us now one way or the other. I had a lot of things rushing through my head. I take it you didn't see this man as he was leaving the premises. As he was walking out the door? No, as he was near the door, for instance. No, I wouldn't have seen him, I would have been sideways on. Attending to the phone, is that right. Yes. So you can't help us one way or the other as to his manoeuvres as he was nearing the door. No. After this happened did Kingsley appear upset. A. Yes, he was very upset. He appeared concerned about this person's health because of what had happened. Absolutely. And he was determined that an ambulance come as quickly A. Absolutely, he was screaming at me. NO FURTHER QUESTIONS NO FURTHER QUESTIONS WITNESS RELEASED ..... MS VANSTONE: Can I just mention one more thing. There is a further admission that the witness Margaret Rowe telephoned triple O and asked for the attendance of an ambulance at 9.13 p.m. So that is a time taken from That has been agreed by Mr David the ambulance people. as he has told me. CONTINUED JURY LEAVES COURT 4.45 P.M. Can I raise two other matters? Firstly, HIS HONOUR: the letter that was received from Channel 10; have counsel had an opportunity to consider that, and consider the request made? MS VANSTONE: I have taken instructions on it, and my instructions were to oppose that course. Ms Taylor was here. She said she had to go away. I am not sure she wanted to press the application in the light of Mr David and I indicating we would oppose it. HIS HONOUR: Perhaps I could hear the parties The second matter, do you object to bail continuing? MS VANSTONE: No. MR DAVID: You do seek bail to continue? HIS HONOI/R: HIS HONOUR: Are there any other matters that need to be discussed tomorrow morning. We will meet counsel at 10 o'clock MS VANSTONE: We are meeting at the service station at HIS HONOUR: 10 o'clock. tomorrow morning at the service station. ADJOURNED 4.47 P.M. TO TI/ESDAY, 14 MAY 1996 AT 10 A.M. AT VIEW SITE, 409 SOUTH ROAD, KESWICK. LANDER J R V KINGSLEY JOHN FOREMAN TUESDAY, 14 MAY 1996 ON SITE AT 409 SOUTH ROAD, KESWICK 10 A.M. 1. His Honour informs the jury Ms Vanstone will identify the differences in the premises now to that which they were on 14 october. 2. Ms Vanstone points out, with photographs 6 and 7 open, the doorway. That photographs 6 and 7 show the doorway as a single panel opening, whereas now new double doors have been placed there· So that, when they are open, the opening is roughly twice as large as it was back in October· Ms Vanstone draws attention to photographs 20 and 23 in comparison to photograph 6, pointing out that the opening that was there last October is to the right or northern side of that step outside· So that the opening can still be lined up. Ms Vanstone draws attention to the shelving on the western side of the shop area, which has been reduced by a length to double the size of the door opening. So it is not as long as it used to be. And that the shelving at the end is also slightly different, stating it is now backwards rather than being straight up on the corner· And further stating that the corner of it can be seen in photo 7, showing it seems to be lower now in terms of it impeding any view back to the console· Ms Vanstone points out that the northern wall, while not being essential to the trial, has marked changes and they can be seen in photographs 14, 15 and 16. Ms Vanstone points out that the Coke machine is still in the same place, but there are changes to the balance of the area. And that there is also a new machine. Ms Vanstone points out that the drink machine outside, coloured purple or pink with the word 'Fruitopia' on the side of it, has been moved quite significantly. And that, looking at photograph 6, it was formerly sitting on top of the southern side of the step, blocking the left-hand side of what is now the doorway. 8. Ms Vanstone points out the Fruitopia machine is now placed further to the south and is sitting on the lower level of the concrete. 9. Ms Vanstone indicates, in photo 6, there .is .eQme ..... cardboard behind the Fruitopia machine, which is now gone. 10. Also in photo 6 Ms Vanstone points out, on entering the shop, walking straight ahead could be seen some drink bottles or sauce bottles straight in front. Ms Vanstone points out the same area now has different displays. 11. Ms Vanstone points out, in relation to photograph 23, that the cardboard on the top of the door behind the Fruitopia machine together with the Fruitopia machine meant that you couldn't look out of that panel and that now the cardboard is on the right-hand side of the existing door and up against the door frame, as seen in photo 23. Further indicating there was vision out there previously, which is not there now. 12. Ms Vanstone points out that, in terms of the view from the door, as it was, back to the console area, in terms of that line of sight, the doubling of the door size has made a big difference to that now and that needs to be taken into account. 13. Ms Vanstone points out that the Minties display is still present and it is exactly the same as can be seen in photo 23, except not in the same position, with the chips display, which was behind it. 14. Mr David asks for clarification as to the position of the Minties display on the night. 15. Ms Vanstone points to the plan, Exhibit P1, where the Minties display was further back and adjoining the display with the Jiffy light globe on it. 16. Mr David intimates he has no objection to his Honour actually shiftin9 the Minties display back to where it was on the night, as Ms Vanstone says it should be, saying that it is not unimportant. 17. Ms Vanstone points out that the best estimate of where the Minties machine was on the night is inclined, as it is now, but a foot or six inches back to the east. 18. His Honour points out that the jury can understand that that is the angle at which the Minties stand was on the night, but it was six inches to the east. .--~ ..... 19. Ms Vanstone points out that the chips display is now a different one. 20. Mr Van Dijk moves another chips display to the same position as on the night and Ms Vanstone points out that note should be taken that this one, being about 1.6 in height, is higher than the one on the night. 21. Ms Vanstone intimates they are the essential differences. 22. Ms Vanstone points out that the pelmet over the door appears to be a new one and that it was not there last October. 23. His Monour points out that it would appear that the pelmet, that can been seen above the doorway, does not appear in photograph 23. Nor was the electronic equipment on the top of the pelmet there on 14 October, stating that that pelmet probably demonstrates what Ms Vanstone has been pointing out, that the doorway now has been enlarged significantly by the addition of the southern doorway, which was not there on 14 October. 24. Ms Vanstone intimates there are some specific items she will indicate. 25. His Honour asks the jury to go to the other side of the console marked 'Staff Area'. 26. Ms Vanstone points out there is at least another difference here in as much as the 'hot nuts bay' has apparently gone and the revolving cigarette display has replaced it. And that, looking at photo 17, the old Peter Jackson cigarette display can be seen, making a difference to the view that can be had from within the console area back towards the door. 27. Ms Vanstone asks the jury to observe the counters and their relative positions and the position of the till and the phone, asking them to move inside to do that. 28. Ms Vanstone asks the jury to also come around to the front of the counter and observe the view of the cash register and to imagine the view of the drawer, it being opened from that side of the counter. 29. Ms Vanstone ask the jury in turn to assume a .position in --il the doorway such as the officer taken in photo 21 and then to notice what can be seen of the relevant side of the door, the far side, from that position. Ms Vanstone points out that the officer in photo 21 is standing in the door frame, or just a few inches back from it. 30. His Honour asks jury to follow those instructions one by one and to observe the line of.vision, being the line of vision to the point of the second door, the northern door. And further reminds the jury that the southern door has been added recently, the northern door being the far door. 31. Ms Vanstone asks the jury to observe from that position the situation of the video camera and to remember that the line of vision was marked on the plan, Exhibit PY, tendered yesterday. 32. His Honour intimates that Exhibit P7 shows the line of vision to the southern aspect of what was the water display, which is not there now, but which would have been in front of the new door. 33. Ms Vanstone points out on the larger set of photographs, on the wall, can be seen the words 'Shop Stop' and that the video vision cuts out around about the two letters H and T. 34. Ms Vanstone places photo 10 on shelf for the jury to observe, as the deceased was shot out of range of the video, to give some idea of how far he had progressed. 35. Ms Vanstone asks the jury to stand in the right-hand doorway, in the area around the doorway, and to look back to the position in which the accused was when he fired the pistol and to observe the line of vision from the other direction. 36. Ms Vanstone asks the jury to observe the line of the bullet was heading out into the intersection. And that, when the doors are open, to observe the sound of cars passing. 37. Ms Vanstone suggests that the traffic noise today may or may not be the same as at 9 o'clock on Saturday morning. 38. Mr David places photo No.92 on shelf, being the last time the camera catches the robber, and asks the jury to try and line up that position relative to the Minties display, relative to the exit door, bearing in mind that, in photo No.6 of the other copies, all the material present outside is not there in the direction to the right. 39. Court proceeds outside shop. 40. Ms Vanstone asks the jury to look at photograph No.2 and to try and identify the position of the vintage car in that photograph, taking note of the concrete. 41. Ms Vanstone points out that the Pal display present today was not present on the night. 42. Ms Vanstone points out that Fruitopia machine would have been standing on the step, as shown in photograph 6, and that the shelving obviously came out more. 43. Ms Vanstone points out that the Coke sign/rubbish bin was not present in the opening, at that time, and that one could look straight in from a position looking east. VIEW ENDS 10.36 A.M. access to a police interview, a record of interview which was taped. HIS HONOUR: Is that SA Telecasters v The DPP? MR SHORT: Yes, and that is obviously a different situation there. In that case it was a matter of a tape, the publication of which might lead people to think 'I don't want to appear on tape in giving a record of interview.' That is not the matter here, there is no issue of consent in relation to a video tape and no issue of on going detriment to public justice. There was an earlier case which dealt with a tape which it was said would reveal techniques used by the Star Force, that that might assist criminals..i~-their activities. That was I think the Queen v Reid. That was a decision of Judge Kitchen. First of all I think it was The DPP v Williams, which was a case involving a video tape taken in a hospital depicting a mother smothering her young child. There access was refused on the basis that publication of a film would be quite traumatic for the child. It was not a matter of the mother, she had been convicted, but it was the child's interests in that case which were considered. The child was depicted being smothered by her mother. That could be shown at any time and, understandably, there would be a significant degree of trauma if as the child grew up it continued to be aired. Those are all matters which are materially different to this case. As I understand it, the photographs simply deal with the accused. The victim, the deceased, is not seen on the photographs that we are seeking access to. HIS HONOUR: Just say that again, I missed that one MR SHORT: The victim is not shown on the photographs to which we seek access, it is the accused who is shown. I am instructed that he is shown on the earlier part but it is not a matter that you can see the shooting. The photographs are taken from the video, the ones to which you are referring, and they HIS HONOUR: show the sequence of events from the time when the deceased came into the range of the video to the time the deceased left. The deceased had not been shot apparently, at the time he left. MR SHORT: The deceased is not seen in the sense of some horrific scene of violence. In relation to relevant considerations, well obviously an important consideration is the public interest in open and public justice. Consideration laid down, beginning with cases such as Scott v Scott, will be well known to your Monour and the powerful consideration. .As-against that, you also of course have to consider fairness to the accused and the interests of a fair trial. In this case the information to which we seek access has already been seen by the jury, it has already been admitted in evidence, so there is nothing new about that. It might be put to you that photographs can't be used without seeing them all, all 98, as I understand. If that were put to you, then we would say that is simply an untenable proposition. The jurors have seen this, they are not going to be influenced by a photo being shown in the Advertiser, where they have already seen those photographs and heard the evidence as a whole. Obviously if material were published accompanying the photograph which amounted to a contempt of court, your Honour would deal with that, but this application should not be approached on the assumption that my client would publish something that is in contempt of court. There is absolutely no intent to do so and there can be no suggestion of it. It is also important to note your Honour has the power to impose conditions, that is, fashion access subject to court controls. It is an unfair discretion and it can't be challenged under ss.4. I think that must be as a result of the Full Court having been unattracted to some fairly unfortunate cases where the media did make perhaps unwise applications, but this is in an entirely different category. Another consideration I put forward is that there appears to be a growing recognition that members of the public really can't all be here and that their access to the courts is now via the media. That is a realistic proposition. s.59 embodies support for that proposition. You will recall that with suppression applications the right of the media is recommended by Parliament as a matter of substantial weight in allowing public access. HIS HONOUR: That is in different circumstances. MR SHORT: But I raise that, that there.,~S..growing support for public access to information about courts gained through the media. It is not realistic to say that members of the public, because they can come here that the million citizens in South Australia can come to your courtroom and see what is going on and see the photographs for themselves. That is not the realistic position and courts, I say, are recognising that, just as the ability of the media to intervene on suppression orders in states where there are common law restriction. It has been recognised that they have standing to do so because they have an interest over and above ordinary members of the public. I don't put it higher than that but it is a consideration which would favour access to those exhibits which have been put in open court. So in this matter I say that there are factors which favour access and publication. There are no factors against, but if there were any factors against you have the power to fashion conditions which of course would be no wider than necessary to allow - HIS HONOUR: What conditions could I impose? MR SHORT: In my submission you wouldn't impose any but presumably good reasons will be put to you - HIS HONOUR: You said I could, but what would I? MR SHORT: You may impose a condition, for example,--. that access only be granted following upon a conviction. That is a possible condition. It is not one which I would encourage but that would be open to you. :: HIS HONOUR: If I was going to do that it would be better to adjourn the application, wouldn't it? MR SHORT: Yes, but if your Honour was asking what conditions, there is one. Others may be on how many times it could be shown. Again, that is not one I advocate but that is a condition which you could impose. HIS HONOUR: your request now, refuse it, or adjourn it. MR SHORT: I simply say if you were of two minds about whether it should be granted subject to some restrictionic. then it is a matter of, I would suggest, some discussion about what conditions and it is hard for me to anticipate the objections my friends will have. It may be that it can usefully be taken further after that. submissions. I don't propose to repeat, except in so far as it is necessary, any of things done - Under what part of the section do you apply? I make my application under ss.2 of s.131. Under 2F? Yes. You don't claim to be within s.131.17 I confess that I hadn't turned my mind to it. I am not encouraging you, I am just asking you. I suppose when one considers the broad definition of documentary material that applies to the concept of discovery in civil cases, where a video would qualify as a document for the purpose of discovery, then there would be an argument to bring us under ss.l.B. It was left open in South Australian .... Telecasters v The DPP but that was of course under the section before it was amended. It would probably be the case that the section is now expressed in.a way that video tape is expressly dealt with under 2F and that therefore you have to come within it. MR HARRIS: Rather than take your Honour's time, I think that is the sensible course to take. It is clearly the legislative intent. Then it is an exercise of discretion on HIS HONOUR: my part. MR HARRIS: HIS HONOUR: clients? MR EARRIS: position. Yes. Why should I exercise in favour of your We start from a slightly different We accept that, in the middle of a criminal trial, your Honour starts from the proposition that that which must be concluded, and concluded successfully, whatever the outcome, is the criminal trial over which you preside. And we accept that in approaching the discretionary exercise that you have under the section you must start from the proposition that the interests of justice require that criminal trials not be prejudiced or compromised by issues and dealing with issues as they arise in the course of the case. Mowever that is a balancing act that the media have to deal with and the courts have to deal with, issue by issue~ and every day of the week. The very reporting of criminal trials, the very reporting of allegations, particularly in a case which may be protracted, has the potential to be seen by some as prejudicial to the interests of the accused and that may well be right because that which has been reported may well be material which is damaging to the accused in a prosecution case. There can't be any doubt on the authorities that the media in fairly and accurately and non-contemptuously reporting proceedings in our criminal courts are entitled to cut and paste, they are entitled to do less than a verbatim report and they are entitled to, if I might describe it, paraphrase, but a fair paraphrase of the proceedings. HIS HONOUR: And a fair and accurate report of the proceedings, ought they not? MR HARRIS: Indeed. So the concept that the success and just conclusion of a criminal trial must not be prejudiced can live with a fair and accurate report of that trial. It is our submission that the release of a video tape which has been tendered in evidence and has been seen by the jury, and could be seen by the jury as many times as they would wish to see it before they come to a conclusion in relation to their verdict, provided and this is where I take on board the submis.~on of Mr Short - provided that that which accompanies it by way of explanatory text is no more than a fair and accurate report of the trial, cannot fairly, we submit, be said to be prejudicial to the interests of the accused or the prosecution. HIS HONOUR: It is a matter of an exercise of a discretion, as I said, Mr Harris. There would have to be positive reasons to exercise in fayour of your client and the first positive reason I could think of is that your clients would submit that it is in the public interests, and that ought not to be confused I suppose with the interests of the public and zhe public interest. MR HARRIS: I understand that and that is why I start acknowledging the public interest of justice. But I do not step away from the legitimate public interests and not just the interests of the public but the interests of open justice that the reporting of the proceedings of our courts is effective an informative. And if it be the case that in 1996 the technology that my clients utilised to report fairly and accurately are moving pictures and the exhibit that is before your Honour are moving pictures, then on the basis that your Honour should propose that the explanatory text will not-. be contemptuous, then all we are asking for is the ability to fairly and accurately report the proceedings, which is a right recognised by statute and is indeed a positive benefit to the community in the pursuit of open justice. That is a matter which works in the broader picture in the interests of both prosecuting authorities, accused persons, judges, juries, and everyone else because in days gone by when The Times used to report in 25 columns everything that was said in the newspaper in England, then if it wasn't verbatim it was close to it and it was fair and accurate. Things have changed since then by way of technology but the principle is the same. This is not a case, for example, whereas in The DPP v Williams the boundaries of good taste, bearing in mind that wasn't, as I recall it, a contested trial, but where there was an argument that the boundaries of good taste are so transcended by that which is reported, and there are significant potential damaging effects in the years into the future for the child who was the alleged victim. Nothing like that applies here. The factors are simply this, is the fair and accurate reporting of this case, including the exhibits and including the moving pictures, a matter which cuts across the important concern your Honour has to make certain that this criminal trial is successfully concluded. And we say no, we say provided that there is no contempt the public interest is served by the release of this material and not by its retention. HIS HONOUR: How is the public interest served by its MR HARRIS: Because a word picture, a word picture on television of that which occurs, and indeed the use of a still photograph which is obviously lifted from the moving pictures anyway, is not going to give a complete picture, if I might use that description, of the exhibit--- 35 where one is possible. And so provided that it fairly informs the reader or the viewer, the totality of the moving picture, providing it doesn't infringe the other RESUMING IN COURT 11.10 A.M. JURY NOT PRESENT HIS HONOUR: media in relation to matters of evidence? MR SHORT: HIS HONOUR: MR HARRIS: commercial television stations in Adelaide, Channels 7, 9 and 10. MR SHORT: the Supreme Court Act. My understanding is that some still photographs have been tendered in evidence in this case and have been shown to the jury and received in open court under s.131 provisions as to accessibility in relation to evidence. Photographs are dealt with in s.131.2F and your Honour will see that a copy of a photograph can be obtained only with the permission of the court. We are seeking access to and a copy of certain photographs. We are not seeking, in relation to my client, access to or copies of a video security tape, which I understand has been also tendered in evidence. HIS HONOUR: photographs you want access? MR SHORT: some 98. My client seeks a limited number, no more than five, in order to have a selection, if you like, with a view to subsequent publication. I would certainly be happy to, together with my client, work out which ones in particular it was that would be sought, if that is a matter that would assist your Honour, but at this stage, not having seen them, I don't know. There have been some cases under an earlier form of s.131 where access was refused and it is not surprising in those cases that they were. One case dealt with access to a police interview, a record of interview which was taped. HIS HONOUR: MR SHORT: situation there. In that case it was a matter of a tape, the publication of which might lead people to think 'I don't want to appear on tape in giving a record of interview.' That is not the matter here, there is no issue of consent in relation to a video tape and no issue of on going detriment to public justice. There was an earlier case which dealt with a tape which it was said would reveal techniques used by the Star Force, that that might assist criminals..i~-their activities. That was I think the Queen v Reid. That was a decision of Judge Kitchen. First of all I think it was The DPP v Williams, which was a case involving a video tape taken in a hospital depicting a mother smothering her young child. There access was refused on the basis that publication of a film would be quite traumatic for the child. It was not a matter of the mother, she had been convicted, but it was the child's interests in that case which were considered. The child was depicted being smothered by her mother. That could be shown at any time and, understandably, there would be a significant degree of trauma if as the child grew up it continued to be aired. Those are all matters which are materially different to this case. As I understand it, the photographs simply deal with the accused. The victim, the deceased, is not seen on the photographs that we are seeking access to. HIS HONOUR: MR SHORT: photographs to which we seek access, it is the accused who is shown. I am instructed that he is shown on the earlier part but it is not a matter that you can see the shooting. HIS HONOUR: video, the ones to which you are referring, and they show the sequence of events from the time when the deceased came into the range of the video to the time the deceased left. The deceased had not been shot apparently, at the time he left. MR SHORT: The deceased is not seen in the sense of some horrific scene of violence. In relation to relevant considerations, well obviously an important consideration is the public interest in open and public justice. Consideration laid down, beginning with cases such as Scott v Scott, will be well known to your Monour and the powerful consideration. .As-against that, you also of course have to consider fairness to the accused and the interests of a fair trial. In this case the information to which we seek access has already been seen by the jury, it has already been admitted in evidence, so there is nothing new about that. It might be put to you that photographs can't be used without seeing them all, all 98, as I understand. If that were put to you, then we would say that is simply an untenable proposition. The jurors have seen this, they are not going to be influenced by a photo being shown in the Advertiser, where they have already seen those photographs and heard the evidence as a whole. Obviously if material were published accompanying the photograph which amounted to a contempt of court, your Honour would deal with that, but this application should not be approached on the assumption that my client would publish something that is in contempt of court. There is absolutely no intent to do so and there can be no suggestion of it. It is also important to note your Honour has the power to impose conditions, that is, fashion access subject to court controls. It is an unfair discretion and it can't be challenged under ss.4. I think that must be as a result of the Full Court having been unattracted to some fairly unfortunate cases where the media did make perhaps unwise applications, but this is in an entirely different category. Another consideration I put forward is that there appears to be a growing recognition that members of the public really can't all be here and that their access to the courts is now via the media. That is a realistic proposition. s.59 embodies support for that proposition. You will recall that with suppression applications the right of the media is recommended by Parliament as a matter of substantial weight in allowing public access. HIS HONOUR: MR SHORT: But I raise that, that there.,~S..growing support for public access to information about courts gained through the media. It is not realistic to say that members of the public, because they can come here that the million citizens in South Australia can come to your courtroom and see what is going on and see the photographs for themselves. That is not the realistic position and courts, I say, are recognising that, just as the ability of the media to intervene on suppression orders in states where there are common law restriction. It has been recognised that they have standing to do so because they have an interest over and above ordinary members of the public. I don't put it higher than that but it is a consideration which would favour access to those exhibits which have been put in open court. So in this matter I say that there are factors which favour access and publication. There are no factors against, but if there were any factors against you have the power to fashion conditions which of course would be no wider than necessary to allow - What conditions could I impose? MR SHORT: In my submission you wouldn't impose any but presumably good reasons will be put to you HIS HONOUR: You said I could, but what would I? MR SHORT: You may impose a condition, for example, that access only be granted following upon a conviction. That is a possible condition. It is not one which I would encourage but that would be open to you. If I was going to do that it would be better to adjourn the application, wouldn't it? Yes, but if your Honour was asking what conditions, there is one. Others may be on how many times it could be shown. Again, that is not one I advocate but that is a condition which you could impose. I would have thought I either accede to your request now, refuse it, or adjourn it. Yes, that is certainly a possibility but I simply say if you were of two minds about whether it should be granted subject to some restrictionic. then it is a matter of, I would suggest, some discussion about what conditions and it is hard for me to anticipate the objections my friends will have. It may be that it can usefully be taken further after that. submissions. I don't propose to repeat, except in so far as it is necessary, any of things done Under what part of the section do you apply? I make my application under ss.2 of s.131. Under 2F? Yes. You don't claim to be within s.131.17 I confess that I hadn't turned my mind to it. I am not encouraging you, I am just asking you. I suppose when one considers the broad definition of documentary material that applies to the concept of discovery in civil cases, where a video would qualify as a document for the purpose of discovery, then there would be an argument to bring us under ss.l.B. It was left open in South Australian .... Telecasters v The DPP but that was of course under the section before it was amended. It would probably be the case that the section is now expressed in.a way that video tape is expressly dealt with under 2F and that therefore you have to come within it. MR HARRIS: Rather than take your Honour's time, I think that is the sensible course to take. It is clearly the legislative intent. Then it is an exercise of discretion on HIS HONOUR: my part. MR HARRIS: HIS HONOUR: clients? MR EARRIS: position. Yes. Why should I exercise in favour of your We start from a slightly different We accept that, in the middle of a criminal trial, your Honour starts from the proposition that that which must be concluded, and concluded successfully, whatever the outcome, is the criminal trial over which you preside. And we accept that in approaching the discretionary exercise that you have under the section you must start from the proposition that the interests of justice require that criminal trials not be prejudiced or compromised by issues and dealing with issues as they arise in the course of the case. Mowever that is a balancing act that the media have to deal with and the courts have to deal with, issue by issue~ and every day of the week. The very reporting of criminal trials, the very reporting of allegations, particularly in a case which may be protracted, has the potential to be seen by some as prejudicial to the interests of the accused and that may well be right because that which has been reported may well be material which is damaging to the accused in a prosecution case. There can't be any doubt on the authorities that the media in fairly and accurately and non-contemptuously reporting proceedings in our criminal courts are entitled to cut and paste, they are entitled to do less --. 35 than a verbatim report and they are entitled to, if I might describe it, paraphrase, but a fair paraphrase of the proceedings. HIS HONOUR: And a fair and accurate report of the proceedings, ought they not? MR HARRIS: Indeed. So the concept that the success and just conclusion of a criminal trial must not be prejudiced can live with a fair and accurate report of that trial. It is our submission that the release of a video tape which has been tendered in evidence and has been seen by the jury, and could be seen by the jury as many times as they would wish to see it before they come to a conclusion in relation to their verdict, provided - and this is where I take on board the submis.~on of Mr Short - provided that that which accompanies it by way of explanatory text is no more than a fair and accurate report of the trial, cannot fairly, we submit, be said to be prejudicial to the interests of the accused or the prosecution. HIS HONOUR: It is a matter of an exercise of a discretion, as I said, Mr Harris. There would have to be positive reasons to exercise in fayour of your client and the first positive reason I could think of is that your clients would submit that it is in the public interests, and that ought not to be confused I suppose with the interests of the public and zhe public interest. MR HARRIS: I understand that and that is why I start acknowledging the public interest of justice. But I do not step away from the legitimate public interests and not just the interests of the public but the interests of open justice that the reporting of the proceedings of our courts is effective an informative. And if it be the case that in 1996 the technology that my clients utilised to report fairly and accurately are moving pictures and the exhibit that is before your Honour are moving pictures, then on the basis that your Honour should propose that the explanatory text will not-. be contemptuous, then all we are asking for is the ability to fairly and accurately report the proceedings, which is a right recognised by statute and is indeed a positive benefit to the community in the pursuit of open justice. That is a matter which works in the broader picture in the interests of both prosecuting authorities, accused persons, judges, juries, and everyone else because in days gone by when The Times used to report in 25 columns everything that was said in the newspaper in England, then if it wasn't verbatim it was close to it and it was fair and accurate. Things have changed since then by way of technology but the principle is the same. This is not a case, for example, whereas in The DPP v Williams the boundaries of good taste, bearing in mind that wasn't, as I recall it, a contested trial, but where there was an argument that the boundaries of good taste are so transcended by that which is reported, and there are significant potential damaging effects in the years into the future for the child who was the alleged victim. Nothing like that applies here. The factors are simply this, is the fair and accurate reporting of this case, including the exhibits and including the moving pictures, a matter which cuts across the important concern your Honour has to make certain that this criminal trial is successfully concluded. And we say no, we say provided that there is no contempt the public interest is served by the release of this material and not by its retention. HIS HONOUR: release? MR HARRIS: on television of that which occurs, and indeed the use of a still photograph which is obviously lifted from the moving pictures anyway, is not going to give a complete picture, if I might use that description, of the exhibit--- 35 where one is possible. And so provided that it fairly informs the reader or the viewer, the totality of the moving picture, providing it doesn't infringe the other consideration that I have referred to, is no more than being more accurate and more fair. The last matter that I would wish to put to your Honour is this. Mr Short has already dealt with what he understands to be the position in relation to what is contained on the video tape or the stills that he is interested in. We understand it to be the same but there is no video of the victim sustaining the wounds. The other matter that we would simply wish to draw to your Honour's attention is this. If it be suggested that this video being shown over and over aga~-on the news, and one has to accept that it is more likely than not to be shown more than once once the matter is released because it is integral to the issues that are being referred to on each day of this case, that that might be suggested in some way of itself by repetition to be damaging as far as the jury is concerned. Our submission is the same as I put before. It is that which surrounds it which will give any colour, pro or con, to the pictures because the pictures are before the jury and the jury is hearing the trial and the evidence, and that is the basis upon which your Honour can assume that no television station or indeed print media outlet would intentionally or consciously commit a contempt in the circumstances of the conduct of the criminal trial. And there is a vast body of law and unlimited powers possessed by your Honour to publish in that event. Mr Short alluded to, in his submission, to the fact that his client has no intention of doing that and I can assure your Honour, on behalf of those for whom I appear, that the same applies. Your Honour dealt with the question of possible conditions that might be applied. We would submit, on the analysis that we have put to your Honour, that there is no need for conditions and that the adequate protection of the trial exists and that there is a positive benefit and positive factors favouring the exercise of the discretion to release. But if there Were any issue of delaying release of the material until the conclusion of the case, then for pure and technical reasons, if your Honour was minded to do that, we would be seeking access to the material for the purpose of obtaining copies even though there might be an embargo in terms of their use and in terms of their use it is not necessarily simply upon a conviction, we would say upon the resolution of the case. HIS HONOUR: Does the public interest suffer by having to wait upon the conclusion of the cas~l~_which is expected to be this week? MR HARRIS: Yes, because one of the important aspects about a fair and accurate report of any trial is its contemporaneity and therefore, for example, if one takes the law of defamation, some time down the track the dredging up of the details of a trial, so alleged, and the use of materials associated with it, might lose the protection that the common law or statute offers because it is no longer contemporaneous with the proceedings that were in court. HIS HONOUR: There is something pradoxical about that. Your clients are rather asking me to release the information to protect them against defamation proceedings. MR HARRIS: HIS HONOUR: MR HARRIS: I didn't say that. That is effectively what you are saying. No, I was trying to identify the importance of contemporaneity in relation to what constitutes a fair and accurate report. We do not make, and would not presume to make any analysis or assessment of other trials proceeding, but simply that an information as to the conduct of the trial and its outcome needs to be proximate to those events. That is, for technical reasons that requires my client to need to access the materials for the purpose of reporting the outcome with the relevant evidentiary material. Unless there is anything further, they are our submissions. Ms Vanstone? The Crown objects to the application of HIS HONOUR: MS MEALOR: both the video itself and the still photographs taken from the video, basically in the interests of justice. It is the Crown's submission that were these matters to be publicised, especially at this point in the trial, that there is a strong likelihood that one of two things could occur. Firstly, that members of the jury may watch that video in the presence of friends or families and that discussions could therefore ensue, or, alternatively, that friends and families of j~_~ies might see it independently and at a later time discuss it with members of the jury. The video itself is unique in that it is a video of the very incident which forms the basis of this charge and it is the very incident about which the jury are going to have to deliberate and form an opinion on. is the Crown's submission that there is no way your Honour could, by imposing conditions, on the publication of that, whether it to be publicised during the course of the trial, the Crown submits that there is no way your Honour could prevent that happening by imposing any condition on its publication and the Crown submits that the application, for example, should certainly be adjourned until after the trial and after any subsequent appeal process, were there to be a conviction and an appeal instituted. Why after an appeal process? If the main concern of the Crown is that the video not be shown to the jury during the trial, outside of the trial process, a concern I can understand, why ought there to be a delay during the appeal process? I am speaking more in terms of the fact that there could possibly be a second trial and that the interests of the justice of a fair trial the second time round, were that to occur, that any publication should await - hIS HONOUR: I appreciate that but Ehat is rather a JMg 2B different point I think, isn't it? That would be a reason for suppressing the publication of evidence because a different jury may hear different evidence. MS MEALOR: in that case the Crown doesn't put it any higher than that the publication should certainly be delayed until after a conviction or the resolution of this trial before your Honour. MR DAVID: what my learned friend said. My two submissions are this. Firstly, in addition to what my learned friend says, that film should only be viewed by the jury in controlled circumstances before this trial is finished, either in court, under the control of your Honour, or in the jury room, in the presence of each other, pursuant to your Honour's directions. They shouldn't be allowed via the television to go off on a frolic of their own and view it in that way. Secondly, as far as the still photos are concerned, there are a number of those still photos which the defence would like to have on the front page of the paper and I am sure there are a number of those still photos which the Crown would like to have on the front of the paper. The whole matter must be looked at as the whole of this evidence. If you pluck one of these photos out and produce that, in the fairest way possible, but just by its production, that could get the whole of the context of this evidence out of kilter. HIS HONOUR: trial? MR DAVID: emphasising that part of the evidence, just by the mere production of it, that might have an influence on them. Why are they shown that photo? They must think this is of significance, as distinct from other parts .... CONT I NUED HIS HONOUR: Won't that be so of the media reporting Ms Vanstone's opening? A juror reading that might think 'Why did the media give emphasis.to that which she said in opening?', or alternatively, any particular piece of evidence. MR DAVID: No, this is, of course, a matter of degree and these are allegations that need to be proved and they are emphasising proved evidence. There would be no challenge to the integrity of the machine, or anything like that. They are emphasising proved evidence in a sense as far as weight is concerned, by the fact that they present a certain part of it as distinct from mere allegations. So, in my submission, it would be fraught with danger and it is a danger that we really don't need, seeing this trial is only going to last a day or so more. It is a case in which most of the Crown case is not in dispute and, in my submission, the pillars of democracy will still stand if it is for two more days that the press don't get hold of this material. After that, it is another matter and I have no submission, at this stage, but there couldn't really be an argument about it then. HIS HONOUR: If I might say, your best point.is.that the jury might view the film in the absence of, as you say, the controlled situation. What is it about that, though, that makes the film any different to any other evidence that The Advertiser might publish, or Channel 7 or 9 or 10 might emphasise? MR DAVID: It is the very nature of it. My learned friend has made a very good point. This is evidence of the incident itself uncontested on film. That is a very rare circumstance. It is a matter of the interpretation of that evidence that this case is all about. As distinct from Mr Jones said he saw this happen, or a report of that, that is one thing. But where it is all wrapped up in this succinct graphic form, it is open, in my submission, to all sorts of comments and interpretations and it is going to be used in a certain way, which your Honour will direct them to. In my submission, that is far different than just a report in the paper of a piece of evidence. HIS HONOUR: Do you wish to say any more, Mr Short? Very briefly, in relation to the suggestion about members of the jury discussing matters with their family or friends, I say your Honour would give a direction as to what they should do, during the course of this trial. And seeing a still photograph or a video tape would appear to be no different from a discussion, as I understood your Honour to point out, of anything else that might occur in the ordinary way in relation to media reporting. It stands no different and your direction would stand no different. That does not appear to be a factor that would exercise your discretion. HIS HONOUR: But the point that is made against you, though, is that this film is critical to the case from both sides' point of view and that it ought not, therefore, to be seen in circumstances apart from the rather dispassionate circumstances one finds in court. MR SHORT: Yes, I see the still photographs as being in a different category from the video tape even, though, of course, a still photograph is a selection. But, in terms of impact upon juries or members of the public, it would appear to be different. It is a selection and would be understood to be no more than this is something that is in evidence. It would not have the same impact of a video tape, where my friend's arguments may have more force, I don't see that they are right. That will be a matter for your Honour, as I think my friend has pointed out to me. Whether the prosecution or accused would prefer a particular photograph to appear in the media is not the issue. The trial will sort out the result, if the issue is whether it would have an unfair impact, whether it would cause a prejudice to the fair trial of the accused, or raise such concerns in your Honour's mind that, in the exercise of your discretion, publication should be delayed. My friend makes the point that the pillars of democracy won't fall. It is a nice turn of phrase. The issue of public justice is not one to be considered in relation to publication in particular isolation. HIS HONOUR: It is, isn't it? Because, if I allow the publication of material which might affect the fair trial of one particular person, then it ought not to be allowed. MR SHORT: I accept that. It is a matter of the weight to be put upon it. If you always look at a particular case and say it can always wait, that is an inappropriate way of looking at it. You have to look at the circumstances and the fairness of the trial for the accused, but in the balance of public interest in open justice and it is a balancing exercise. You look at It may be a matter of that wider consideration as well. weight and degree. There is nothing further. MR HARRIS: except perhaps I didn't make it clear in relation to any possible condition that your Honour may have in mind in terms of contemporaneous reporting to the completion of the case. If your Honour had in mind to, in effect, adjourn consideration of release of the material until that time, we would be seeking access in controlled circumstances ourselves by way of example to actually provide the technical equipment that might be necessary to produce a copy for our own purposes, which would remain in the court's possession until the conclusion of the case, because we can't ignore the realities of the technical limitation of reporting contemporaneously to the end of the case. I understand it might take two hours to affect the transfer of the material to a format that my clients could use. If your Honour had in mind to say at the end of the case there couldn't be any argument, there would then be a technical impediment to hearing it, then that could be avoided in the interim. If your Honour was concerned about the publication in the interim, without that being effected, that is all. JUDGMENT DELIVERED MS MEALOR: There is one problem with the original tape. I have just been informed that the original tape actually deteriorates as it is being played, so we would ask that the original not be released, as I understand the copies would provide adequate footage of the incident, but we are concerned about the original deteriorating. HIS HONOUR: I am not ordering the release of the material now, but I take on board what you say and, in those circumstances, it would be inappropriate that anyone have access to that, if it is likely to damage the integrity of that tape, but perhaps your instructing solicitors might be able to deal with those who have instructed Mr Short and Mr Harris in relation to perhaps the coping of other tapes? Yes. MR SHORT: I just wanted to come in on that access to the videos and still photographs. I didn't mean to exclude you. MR SHORT: and I understand we will take that up with Ms Mealor and others. HIS HONOUR: Mr Coppola, do you wish me to wait until Mr David comes back? MR COPPOLA: As I understand it, the prosecution have given us some notification that they intend to lead evidence from the witness Andrew Hodge. There are two Hodges referred to in your Honour's papers. There is a Benjamin Hodge. I don't think it is that one, it is the other one, as to the orgins of the firearm. HIS HONOUR: That's right. MR DAVID RETURNS TO COURT MS VANSTONE: Yes, I am. With respect to Mr Hodge, I am advised that he is attending this afternoon and we will need to have a short argument about that. Might I suggest that, since the jury have been in their room for longer than we expected that we perhaps go on with the police evidence now? MS VANSTONE CALLS MICHAEL BRIAN COLLINS EXAMINATION BY MS VANSTONE Q. Are you a police officer. A. Yes, I am. Q. What rank. A. Senior Constable. Q. Where are you stationed. A. Darlington CIB. Q. SWORN Last October, on the 14th, were you working in company A. Yes. Q. Did you accompany him during many of his activities that Yes. Q. Including going to the Adelaide police headquarters for Yes, I did. Q. a conversation with the accused. Yes. Q. After that conversation at police headquarters had concluded, did the three of you return to the service Yes, we did. Q. Whilst you were there, did you have a conversation with the accused at which Mr Brennan was not present. Did you make notes of that. Yes, I did. At what stage. A. Later that shift, that same shift. A. About how much time had elapsed. Approximately two hours to three hours. When you made the notes, was the conversation fresh in A. Yes, it was a brief conversation. Q. Did you accurately take down what had been said. A. I believe so, yes. Q. Do you not now recall the conversation in sequence and in detail without reference to those notes. A. I can't, no. Q. Do you seek his Honour's permission to refer to them. A. Yes. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. What time was this conversation. A. At approximately quarter past 11 to 20 past 11. Q. Could you tell the ladies and gentlemen now of the conversat ion. A. Yes, the conversation was, Mr Foreman commenced and he said 'How long do you want me to wait here for?' I said 'Well, Jack is just going to see what is happening. Then you can go. We'll see if the media have gone first. ' He said 'Yeah, that would be a good idea.' I said ' It won' t be long. ' He said 'You know, I'm not afraid of the knife. If he only pulled the knife, then that would be it, he would have gone. I do a lot of repossessions and people have pulled knives on me before. I am not really scared of them. ' He said 'I'd better have a drink a bit later, I think. I don't know if I'll be going shooting or not.' I said 'Do you go most Sundays?' Me said 'Pretty well. We shoot in groups of this.' And indicated his thumb and index finger forming a small group like that (INDICATES). Q. Could you say that again. 'We shoot in groups like this.' A. Me said 'We shoot in groups like that.' And, at that time, he indicated with his thumb and finger, I can't remember if this was left or right hand, a group like that (INDICATES). HIS HONOUR Q. Making a circle with HIS thumb and forefinger. M.B. COLLINS XN Yes, like that (INDICATES). And he continued 'If we don't shoot within that group we are disappointed a bit.' I said 'You may as well get out now, Kingsley, I think they have gone. You can go if you like.' I will speak to Margaret. He said 'All right. okay?' And I said 'Sure.' And then the conversation ended. And then did he go off in his tow truck. No, he walked over to the shop of the service..Station and Mr Foreman approached Margaret, the console operator, who was still at the scene and he had a conversation with people, with her. Q. And then he went off. A. I believe so, yes. NO CROSS-EXAMINATION NO FlIRTHER QUESTIONS WITNESS RELEASED ADJOURNED 12.55 P.M. RESUMING 2 P.M. HIS HONOUR: Mr Harris, I called this matter back on for the purpose of considering whether an order ought to be made under s.69A of the Evidence Act in relation to part or all of the reasons I gave this morning and I thought if I was to make that order your clients are entitled to be heard in relation to it. MR HARRIS: We are very much obliged to your Honour for advising us of the fact that that was a possibility Do I understand that your Honour proposes to make an order subject to being convinced to the contrary? HIS HONOUR: Yes, I am willing to hear you. I mentioned it to Mr David, who took up a matter after I mentioned it, and his application is for an order for suppression of the whole of my reasons but in the alternative, an order for suppression of those reasons relating directly to the refusal of your application, namely that the jury may have access to the video outside of the court. That is so I think Mr David? MR DAVID: Yes, your Honour. Might I add, as a matter of safety, any argument thereto? MR HARRIS: I assume that that is put on the basis that it is suggested that that would in somehow prejudice the administration of justice. HIS HONOUR: Yes, it would be upon the basis, under s.69.A.1.A to prevent prejudice to the proper administration of justice. The idea, I think, is that the jury ought not to know that there is any doubt about the integrity of their deliberations or that their ability to deliberate might be affected by some other reason. MR HARRIS: In light of what we now understand from the nature of the application, we don't wish to be heard in respect of it. HIS HONOUR: At all? MR HARRIS: HIS HONOUR: So you would accept an order in relation to the whole of the reasons? MR HARRIS: your Honour has outlined. We see that there is a real sense in which that could have some bearing on the way in which the jury conduct its deliberations which might frustrate the purpose of your Honour delaying the tape until the end. HIS HONOUR: MR DAVID: HIS HONOUR: MS MEALOR: Mr David? I don't press the rest. Ms Mealor? I simply reiterate what the Crown has already stated, which is that we would ask si.~ply for suppression of the part relating to improper use by the jury of the video were it to be published. HIS HONOUR: Then I will make an order, pursuant to s.69A of the Evidence Act, suppressing from publication, until the hearing of the adjourned application made this morning under s.131 of the Supreme Court Act, the argument relating to, and those parts of my reasons wherein I said that it would be inappropriate to publish the video outside the courtroom environment in case the jury viewed it in inappropriate circumstances. Does that make tolerably clear what I had in mind? Yes. Yes.' Do you your clients follow that? MR HARRIS: Yes. I am just making sure we don't have to come back and make an application under s.131 in view of your Honour's reasons in the transcript this morning. I take it we would be covered under 131E and there isn't a discretion in relation to that, so my clients can have access to your Honour's argument and the reasons. HIS HONOUR: That does not interfere with your clients right to have a copy of the argument and my decision. MR HARRIS: Because we would need that for the purpose of complying. HIS HONOUR: Yes, certainly. MS MEALOR: One other matter. Before discussing which exhibits might be used by the media to take a copy, it is of some concern to the Crown that the exhibits themselves not be interfered with. I have been given by the police a copy which was taken from the original video tape, which has not been tendered. The Crown would be quite happy for the media to have access to that. I don't know whether it would be appropriate to have it simply marked for identification and then it could be returned to the court by the media, or alternatively, the Crown is happy for the media-to use this tape and return it to the Crown, and that would therefore negate the need for the actual exhibits themselves to have to be used. HIS HONOUR: I think that would be a good idea, with respect, and I think it would be a good idea to mark it so that when the application is heard in due course we Do you all know which document we are talking about. agree with that Mr David? MR DAVID: Yes, your Monour. Video handed up by Ms Mealor marked P13 for identification. HIS HONOUR: Do the parties agree that I can release it into Mr Hariss's custody? MS MEALOR: Yes, the Crown doesn't object to that. Perhaps, regardless of the outcome of this trial, if that tape could be returned to the Crown once it has been used by the media. HIS HONOUR: Yes, it is in the custody of the court at the moment but released to Mr Harris, so he would understand that he will have to return it in due course. MR HARRIS: I would want to make arrangements very quickly that it be someone else's responsibility rather than mine. HIS HONOUR: Do you want it to be in somebody else's '- Custody apart from your own? MR HARRIS: My instructing solicitor isn't here at present but I am sure it would be preferable that it be released into my custody. HIS HONOUR: If you want to be released from that, let me know and I will make an order. I take it the Crown wishes to have the return of MFI P13, and that the copies which might be made of it by the television stations for the purpose of their news reporting in due course are not required to be returned. MS MEALOR: That's correct, yes. HIS HONOUR: Mr Harris, of course whilst your clients now would be required to copy it, consistent with my reasons, I understand they can't do anything._e~se with it. Yes, we understand that that issue must await the coming back on of the application at the adjourned time. HIS HONOUR: Which, as I said, I won't hear until after verdict. We will release into your custody the video MFI P13. MR HARRIS: In so far as it may be necessary to have someone else in the direct firing line, someone of integrity, have responsibility for it, would it be convenient for me to make arrangements with your Honour's associate to make alternative arrangements? Certainly. HIS HONOUR: It would need to be done in open court I suppose. HIS HONOUR: If you would let me know I will mention it in open court. Ms Vanstone, is there another matter to deal with in relation to another witness before you call your next witness? MR DAVID: haven't got a rule 9 notice, where a person can come to court much later. There are two statements of an Andrew John Hodge. HIS HONOUR: MR DAVID: irrelevant to this case and can't in any way be of any probative effect at all. I am not quite sure for what jury 'Well, why did the robber say that' and of course the answer might well be 'That's because the robber knew that he had pointed the gun at the accused and got a shot back in return.' So that's a hearsay use of what the robber allegedly said to the accused. In my submission, it is not for the jury to be speculating about what the robber had in his mind that might have prompted him to say that, even if evidence of that statement were in evidence. But there is another matter and this is perhaps the one I would ask you to put to the jury since in a sense it is water under the bridge. That statement by the robber, if indeed it was said, is perfectly referable to the time at which he comes back into the service station carrying the replica. We see the accused on the video going up to him again and pointing his own gun at him (INDICATES). It might have been then that the robber said to him, if he did, 'It's not a real gun.' I'd ask your Honour to say to the jury that in fact there isn't evidence in this court that was said and it has been pointed out that even if it were said, there's another explanation for it, and they shouldn't speculate as to what might or might not have been in the robber's mind, and of course I would ask your Honour to put that other explanation. HIS HONOUR: Can you let me have it again? You tell me that I ought to tell them not to speculate on what was in the robber's mind because there is no evidence of what he said. MS VANSTONE: First I would ask your Honour to tell them that there is no evidence that the robber did say that. That is number 1. Even if he did say that, it is referable to HIS HONOUR: I understand that. MS VANSTONE: They shouldn't speculate as to which explanation is more likely, they should disregard that matter. HIS HONOUR: He may have said that because the accused walked towards him with his gun? MS VANSTONE: After the time of the shooting and at a time when we know the robber was still carrying the replica, and not just walked towards him with his gun, pointed his gun at him. So I ask your Honour simply to withdraw that from the whole equation. HIS HONOUR: I understand what you are saying. Anything else? Do you want to say anything about that? MR DAVID: I ask your Honour not to bring the jury back for that comment at this stage. It will get everything out of context and what your Honour said was perfectly proper. Your Honour didn't say there was evidence of the fact that he had said that, Your Honour said that the accused said that and, if that's the truth, then certain consequences might follow. HIS HONOUR: I don't think I did. MR DAVID: I don't think your Honour said that was evidence. HIS HONOUR: that?' I think I said 'Why would the robber have said MR DAVID: Yes, if it was said. Your Honour didn't say there was evidence in this case that it was said at all. As for the second part of the equation, as I look at the photos I don't think there is any evidence that he has come back with a gun in the hand. HIS HONOUR: I think it does. MR DAVID: The jury can see that. You have said very clearly to the jury that whatever you say, whatever we say about the facts, is a matter for them. They can look at that and evaluate that in their own way. To bring them back for that, at this stage, would be something totally out of context. HIS HONOUR: But if I elevate hearsay evidence above itself, that is not - MR DAVID: You didn't give that a hearsay use, any more than any of the other things you said about the accused's statement to police. It is material before this court, it is not evidence, and if it is true, if it is true, as to what he said, and that's what we are evaluating, the truth of what he said, there is a certain consequence they might or might not draw, and so it is with all of the evidence. If your Honour is going to go and explain the nature of hearsay - HIS HONOUR: I won't explain the nature of hearsay. MR DAVID: We will be getting into all sorts of sub problems with res gestae, things like that. There will be all sorts of problems and there is no need to do it. HIS HONOUR: But in fairness to the Crown case, it is hearsay, Ms Vanstone convinced me of that, and in those circumstances it is probably appropriate to elevate it to a position where it has a force of evidence it otherwise wouldn't have. MR DAVID: Can I enquire what your Honour is going to say about it? HIS HONOUR: What I was intending to say was that I had told them that I will take them to the evidence, that what I said to them 'Why would the robber have said that?' 'That is a matter for you.' And I will say that in fact there is no direct evidence of him having said that, and for that reason alone they ought not to speculate on it. MR DAVID: If we stop there, I have really not a problem, although it is hardly worth bringing a jury back for that. But if your Honour is then going to go on and explain the difference between giving evidence and what he said to the police, I am very concerned. HIS HONOUR: No. MS VANSTONE: Is your Honour going to go on to say there is another explanation? HIS HONOUR: I think I may say there may be other explanations which are - MR DAVID: How much does my friend want? HIS HONOUR: She wants me to put it correctly, I think. MR DAVID: No, the first one is 'You can't use it.' Then she says 'If you can use it, you use it our way.' have it both ways. You can't MS VANSTONE: All I want is to neutralise the situation. It is been left in a way that is unfair to the Crown. I want to neutralise it by your Honour pointing out that there is another perfectly reasonable explanation, just so your Honour can say 'Well, look, there it is, disregard it.' because otherwise they are going to have it in their mind. HIS HONOUR: I think if I give the other explanation, Ms Vanstone, and spell it out, I may end up elevating it way above itself either way. MS VANSTONE: It is devastating devastating. the way it is left, HIS HONOI/R: I am prepared to go as far as you ask in relation to the first aspect of it. As to the second I will say there may be other reasons for why he said that and for all of those reasons it ought not to be speculated on. MS VANSTONE: It is very, very devastating as it is left and I am grateful for what your Honour says about it, but, in my submission, it wouldn't hurt to say another possible explanation is that it was said after the shooting. HIS HONOUR: That's right, isn't it, it is to use the evidence in the way that it ought not to be used. MS VANSTONE: It has already been put to them that they can look at the statement and evaluate it. HIS HONOUR: I will tell them they can't, but then if I was to say ~You may actually attribute that statement to what was the use of the gun after' then it is like asking them to use it again. MS VANSTONE: If you say 'You can't use it' they will say ~Why is the defence being denied this argument which you, the judge, has thought of.' They will say 'Isn't this unfair. Mr David has overlooked it, your Honour has come up with it, we are now being asked to disregard it. Why are the defence being deprived of that argument?' That is the trouble. If you simply point out the other side of the coin and say 'Look, for those reasons.' HIS HONOUR: But do you agree it would be logically unsound, if you are right that it is hearsay evidence, to use some other incident to explain the evidence? It is elevating it. MS VANSTONE: It is not to explain, it is to tell them why. It is really neutral in any event. It is to undo something that has been done. It is not something that is occurring in the course of addresses. It is a correction of something that has been said, so it has to be seen in that light, in my submission, but I am in your Honour's hands. MR DAVID: Could I make a suggestion? Your Honour could say words to the effect 'I said that by mistake, I shouldn't have said it. Mr David didn't raise it in his address and therefore it shouldn't be used in that way' full stop. HIS HONOUR: Thank you. MS VANSTONE: Can I raise one other point? Is your Honour planning to send equipment into the jury now or just to wait for some request about it? HIS HONOUR: Do you have a view about that? MS VANSTONE: I do. To save them the trouble of asking at some stage, which one would think they would, I would ask that it be provided for them straight away. HIS HONOUR: I think so. Are you happy with that? MR DAVID: In my friend's desperation that the jury see it, that's fine. It is within your Honour's province, not my learned friend's or mine. JURY RETURNS 2.48 P.M. HIS HONOUR: Ladies and gentlemen, there is one matter that I ought to raise with you, which arises out of something I said, and it is this: You might recall that I referred you to part of the statement made by the accused to Constable Brennan, and in particular that part of the statement where the accused said this: ~After a few seconds he came back into the shop' talking of the robber 'And I could see he was bleeding from the neck. He was saying something about the gun he had wasn't a real gun.' I then asked you to consider why it is that he might have said that. On reflection, I ought not to have asked you to consider that question. There is no evidence directly from the robber in this court in relation to what was said and there is no evidence, therefore, upon which you ought to speculate as to why the accused related that that was said. So you ought to put out of your mind the question that I asked you to raise in your own mind and to answer. There may be a number of reasons why the robber said what said and it is not useful for the purpose of your deliberations in determining the guilt or innocence of the accused why he might have said that. So I ask you, ladies and gentlemen, to put that aside. I also ask you to have regard to the fact that Mr David did not rely upon that as any part of his address. ignore that part of what I said for the deliberations. You can retire. So I ask you to purpose of your 14 May, I said then I would be disposed to accede to your application, and I am. MR HARRIS: Could I just deal with the matter? one sense I now announce my appearance also for Advertiser Newspapers Limited. I picked up another client in the absence of Mr Short, who was detained. The application which Mr Short made on behalf of The Advertiser was for a limited number of still photographs and that application, as I heard him make it, was pitched very much on the basis that the trial was still pending and, therefore, there were only a selected number of photographs that were sought. My application now on behalf of both The Advertiser and the commercial television stations is for access to all of the still photographs. The foundation of the application is the same, and I don't wish to put any further submissions in support of it but simply to.say that the circumstances are now different; namely, that there is not a consideration of measuring the calibre of the photographs, as it were, for fear that any of them might prejudice the jury's deliberations. HIS HONOUR: I will interrupt you again. The application is now changed, Ms Mealor: does that alter your position? MS MEALOR: HIS HONOUR: MR DAVID: HIS HONOUR: No. Mr David? No. Again, there is no opposition to your application, Mr Harris. In those circumstances,-I am prepared - MR HARRIS: So I can get all of the applications, all the variations out of the way, the commercial television stations sought access only to the video. I make the application on behalf of the three commercial televisions stations to all of the still photographs and I make an application on behalf of The Advertiser for access to the video. The net effect of that is both the newspaper and the television stations make an application for access to both. HIS HONOUR: MS MEALOR: MR DAVID: HIS HONOUR: Again, there is no opposition? No. No. Mr Harris now applies on behalf of Advertiser Newspapers Limited and each of the proprietors of Channel 7, Channel 9 and Channel 10 for access to Exhibits P12 being all of the still photographs within P12, and access to each of exhibits PS, 9 and 10 and 11 on behalf of each of his clients. As I indicated in my reasons of 14 May, I was disposed to accede to his application at the completion of the hearing of the matter. When he renewed his application today after the jury had brought in a verdict of not guilty on both murder and manslaughter, there was no opposition on the part of the DPP or on behalf of Mr David who appeared for Mr Foreman. In those circumstances, I make an order that each of the Advertiser Newspapers Limited and the proprietors of Channel 7, Channel 9 and Channel 10 have access to Exhibits P8, 9, 10, 11 and 12. I just interrupt myself: Ms Mealor, P8 is the one where the video, the integrity of it may suffer, but that is no - MS MEALOR: HIS HONOUR: MR HARRIS: ADJOURNED 7.04 P.M. It does not matter now, I don't think. Any other applications? Thank you. MS VANSTONE CALLS MICHAEL BRIAN COLLINS EXAMINATION BY MS VANSTONE Q. Are you a police officer. A. Yes, I am. Q. What rank. A. Senior Constable. Q. Where are you stationed. A. Darlington CIB. Q. SWORN Last October, on the 14th, were you working in company Yes. Did you go with him to the Caltex Service Station on that evening. Yes. Did you accompany him during many of his activities that evening. Yes, I did. Including going to the Adelaide police headquarters for a conversation with the accused. Yes. After that conversation at police headquarters had concluded, did the three of you return to the service station. Yes, we did. Whilst you were there, did you have a conversation with the accused at which Mr Brennan was not present. Yes. Did you make notes of that. Yes, I did. At what stage. Later that shift, that same shift. About how much time had elapsed. Approximately two hours to three hours. When you made the notes, was the conversation fresh in your memory. A. Yes, it was a brief conversation. Q. Did you accurately take down what had been said. A. I believe so, yes. Q. Do you not now recall the conversation in sequence and in detail without reference to those notes. A. I can't, no. Q. Do you seek his Honour's permission to refer to them. A. Yes. PERMISSION TO REFER TO NOTES, MR DAVID NOT OBJECTING Q. What time was this conversation. A. At approximately quarter past 11 to 20 past 11. Q. Could you tell the ladies and gentlemen now of the conversat ion. A. Yes, the conversation was, Mr Foreman commenced and he said 'How long do you want me to wait here for?' I said 'Well, Jack is just going to see what is happening. Then you can go. We'll see if the media have gone first. ' He said 'Yeah, that would be a good idea.' I said ' It won' t be long. ' He said 'You know, I'm not afraid of the knife. If he only pulled the knife, then that would be it, he would have gone. I do a lot of repossessions and people have pulled knives on me before. I am not really scared of them. ' He said 'I'd better have a drink a bit later, I think. I don't know if I'll be going shooting or not.' I said 'Do you go most Sundays?' Me said 'Pretty well. We shoot in groups of this.' And indicated his thumb and index finger forming a small group like that (INDICATES). Q. Could you say that again. 'We shoot in groups like this.' A. Me said 'We shoot in groups like that.' And, at that time, he indicated with his thumb and finger, I can't remember if this was left or right hand, a group like that (INDICATES). HIS HONOUR Q. Making a circle with HIS thumb and forefinger. M.B. COLLINS XN Yes, like that (INDICATES). And he continued 'If we don't shoot within that group we are disappointed a bit.' I said 'You may as well get out now, Kingsley, I think they have gone. You can go if you like.' I will speak to Margaret. He said 'All right. okay?' And I said 'Sure.' And then the conversation ended. And then did he go off in his tow truck. No, he walked over to the shop of the service..Station and Mr Foreman approached Margaret, the console operator, who was still at the scene and he had a conversation with people, with her. Q. And then he went off. A. I believe so, yes. NO CROSS-EXAMINATION NO FlIRTHER QUESTIONS WITNESS RELEASED ADJOURNED 12.55 P.M. RESUMING 2 P.M. HIS HONOUR: Mr Harris, I called this matter back on for the purpose of considering whether an order ought to be made under s.69A of the Evidence Act in relation to part or all of the reasons I gave this morning and I thought if I was to make that order your clients are entitled to be heard in relation to it. MR HARRIS: We are very much obliged to your Honour for advising us of the fact that that was a possibility Do I understand that your Honour proposes to make an order subject to being convinced to the contrary? HIS HONOUR: Yes, I am willing to hear you. I mentioned it to Mr David, who took up a matter after I mentioned it, and his application is for an order for suppression of the whole of my reasons but in the alternative, an order for suppression of those reasons relating directly to the refusal of your application, namely that the jury may have access to the video outside of the court. That is so I think Mr David? MR DAVID: Yes, your Honour. Might I add, as a matter of safety, any argument thereto? MR HARRIS: I assume that that is put on the basis that it is suggested that that would in somehow prejudice the administration of justice. HIS HONOUR: Yes, it would be upon the basis, under s.69.A.1.A to prevent prejudice to the proper administration of justice. The idea, I think, is that the jury ought not to know that there is any doubt about the integrity of their deliberations or that their ability to deliberate might be affected by some other reason. MR HARRIS: In light of what we now understand from the nature of the application, we don't wish to be heard in respect of it. HIS HONOUR: At all? MR HARRIS: At all. HIS HONOUR: So you would accept an order in relation to the whole of the reasons? MR HARRIS: In respect of the alternative part that your Honour has outlined. We see that there is a real sense in which that could have some bearing on the way in which the jury conduct its deliberations which might frustrate the purpose of your Honour delaying the tape until the end. HIS HONOUR: MR DAVID: HIS HONOUR: MS MEALOR: Mr David? I don't press the rest. Ms Mealor? I simply reiterate what the Crown has already stated, which is that we would ask si.~ply for suppression of the part relating to improper use by the jury of the video were it to be published. HIS HONOUR: Then I will make an order, pursuant to s.69A of the Evidence Act, suppressing from publication, until the hearing of the adjourned application made this morning under s.131 of the Supreme Court Act, the argument relating to, and those parts of my reasons wherein I said that it would be inappropriate to publish the video outside the courtroom environment in case the jury viewed it in inappropriate circumstances. HIS HONOUR: Does that make tolerably clear what I had in mind? MS MEALOR: Yes. MR DAVID: Yes.' MR HARRIS: Do you your clients follow that? have to come back and make an application under s.131 in view of your Honour's reasons in the transcript this morning. I take it we would be covered under 131E and there isn't a discretion in relation to that, so my clients can have access to your Honour's argument and the reasons. HIS HONOUR: That does not interfere with your clients right to have a copy of the argument and my decision. MR HARRIS: Because we would need that for the purpose of complying. HIS HONOUR: Yes, certainly. MS MEALOR: One other matter. Before discussing which exhibits might be used by the media to take a copy, it is of some concern to the Crown that the exhibits themselves not be interfered with. I have been given by the police a copy which was taken from the original video tape, which has not been tendered. The Crown would be quite happy for the media to have access to that. I don't know whether it would be appropriate to have it simply marked for identification and then it could be returned to the court by the media, or alternatively, the Crown is happy for the media-to use this tape and return it to the Crown, and that would therefore negate the need for the actual exhibits themselves to have to be used. HIS HONOUR: I think that would be a good idea, with respect, and I think it would be a good idea to mark it so that when the application is heard in due course we Do you all know which document we are talking about. agree with that Mr David? MR DAVID: Yes, your Monour. Video handed up by Ms Mealor marked P13 for identification. HIS HONOUR: Do the parties agree that I can release it into Mr Hariss's custody? MS MEALOR: Yes, the Crown doesn't object to that. Perhaps, regardless of the outcome of this trial, if that tape could be returned to the Crown once it has been used by the media. HIS HONOUR: Yes, it is in the custody of the court at the moment but released to Mr Harris, so he would understand that he will have to return it in due course. MR HARRIS: I would want to make arrangements very quickly that it be someone else's responsibility rather than mine. HIS HONOUR: Do you want it to be in somebody else's '- Custody apart from your own? MR HARRIS: My instructing solicitor isn't here at present but I am sure it would be preferable that it be released into my custody. HIS HONOUR: If you want to be released from that, let me know and I will make an order. I take it the Crown wishes to have the return of MFI P13, and that the copies which might be made of it by the television stations for the purpose of their news reporting in due course are not required to be returned. MS MEALOR: That's correct, yes. HIS HONOUR: Mr Harris, of course whilst your clients now would be required to copy it, consistent with my reasons, I understand they can't do anything._e~se with it. MR HARRIS: Yes, we understand that that issue must await the coming back on of the application at the adjourned time. HIS HONOUR: Which, as I said, I won't hear until after verdict. We will release into your custody the video MFI P13. MR HARRIS: In so far as it may be necessary to have someone else in the direct firing line, someone of integrity, have responsibility for it, would it be convenient for me to make arrangements with your Honour's associate to make alternative arrangements? Certainly. HIS HONOUR: MR HARRIS: It would need to be done in open court I HIS HONOUR: If you would let me know I will mention it in open court. Ms Vanstone, is there another matter to deal with in relation to another witness before you call your next witness? MR DAVID: haven't got a rule 9 notice, where a person can come to court much later. There are two statements of an Andrew John Hodge. Has your Honour read those? HIS HONOUR: MR DAVID: irrelevant to this case and can't in any way be of any probative effect at all. I am not quite sure for what purpose the Crown wants to call this evidence but it can be of no probative value in my submission. What we are concerned about in this case, of course, is whether my client killed the deceased, and there seems to be little doubt about that, his state of mind when he killed him and what the position was as far as s.15 was concerned and all the evidence surrounding that. It has got nothing to do with this. There is no doubt that this person had the gun. There is no doubt that it was that gun. There is no doubt that he was robbing the place. And in my submission I do~t.know how this is intended to colour the case at all, but in my submission, on the face of it, it there is just no relevance at all. MS VANSTONE: All I planned to lead from Mr Hodge was that the deceased was staying with him, that that was at premises at Albert Street, Richmond, which is about a ten minute walk from the service station; that the deceased had no transport; that he had come from the Riverland and was staying there pending finding other accommodation; he was short of money; that the replica pistol in evidence belongs to Andrew Hodge, or at the very least to the other man in the premises; that it was lying around in the house and that the knife, which is in evidence, was also the property of that household and was in the kitchen and that's really the long and short of it. We have already had other evidence of the deceased's behaviour within the service station. We have had the evidence he was carrying this plastic bag and the knife and so forth, that he was quiet and calm and that he was on his way out when he was shot. All I submit this evidence can be used for is just a context, it just fills in a few open questions from the point of view of the jury. I certainly wouldn't be ultimately saying that anything particular turns on it but it just provides a context. Here is where the robber came from, here is where he got these items that he used in the That is all it is. HIS HONOUR: I suppose in one sense that the evidence would suit Mr David in as much as it proves conclusively that he had the replica gun on him, or may prove conclusively he had the replica gun on him. MS VANSTONE: I don't think there is much dispute about that. There is it is, it is just a matter of completeness, context. We can shave away every item of evidence that bears on the activity in the service station if we like, but it rather sanirises the. Crown case. This just provides some context so that they know a little bit more about how the events came about and they are in a better position to draw conclusions, if they can, about what was in the robber's mind. HIS HONOI/R: I did notice when I read the statement that Mr Hodge talks about the height and of the deceased. You are not calling for it for that reason, I That will be proved by better evidence. Dr James proves that. MR DAVID: I get very nervous when experienced prosecutors give us a reason for introducing evidence, namely, context and completeness. The reason my learned friend wants to call this witness is to get some sort of misguided sympathy for the victim. In other words to show that this wasn't your normal nasty robbery by a person who might have lots of convictions. It is a little boy coming down from the bush, staying with a friend, who might present as a very nice young man too. It is not for any other reason because every one of these things are either irrelevant or have been proved The gun has been proved conclusively, it conclusively. is on video. HIS HONOUR: But you don't refuse to admit evidence because it has been otherwise proved, do you? proved more than once in the same trial. MR DAVID: Well, you do. HIS HONOUR: Not really. MR DAVID: Are the Crown producing it to prove that he had the gun, they are not. They are producing it as a matter of context. In my submission what is the probative value of this context as to where this person came from - it has got nothing to do with this case. This case is about the fact that my client was caught up in an armed robbery and behaved in a certain way and it is the state of mind of my client that is important, not the background or the nature as to how the robbery might have taken place according to this person's background and what sort of person he is. For instance, if this man had a lot of previous convictions, nasty previous convictions for violence, in my submission in the context of this case I would not be able to lead that. That would be irrelevant. It would be irrelevant because my client doesn't know him and we are talking about my client's state of mind, not whether this person is going to behave in a certain way or what he might do. It is what my client thought he might do if my client is believed, and that is what this case is all about and what he said to the police. But all of this so-called contextual evidence, all that can be said is that this person's not a bad sort of robber, it is not such a bad robbery. He didn't plan it and get a gun, it just happened to be lying down, a spur of the moment thing. We have a lot of sympathy for the robber. The jury are going to have to entertain that. In my submission they would be entertaining material that wasn't appropriate. That is not what the case is all about. HIS HONOUR: But surely the Crown are entitled to put the circumstances in their context and and you can't sanitise it, to use Ms Vanstone's statement, so much that the jury know more about it than the entry into the premises, the firing of the gun and the incurring of the--- wound. MR DAVID: Why do they need to know any more, with respect, in relation to this case? HIS HONOUR: To know the circumstances. MR DAVID: If this person broke out of gaol why do they need to know that? This case is about my client's state of mind. In my submission you are going to get to a stage where an accumulation of my client's history as to his guns and an accumulation of what sort of person this chap was, it is going to get the real issues off the rails here and I say the jury should be confined to the uncontested real evidence in this trial, and that is what it is. I object to it. HIS HONOUR: MS VANSTONE: Nothing to add. HIS HONOUR: admitted. MR DAVID: Is my learned friend at the end of the day going to say that this evidence shows that this person, because he is the sort of chap that is going to be described by his friend, is not the sort of person to turn around and threaten. She has been a bit vague with that at the moment. She might have flirted with that in the comment she has made. HIS HONOUR: I didn't understand that to be her submission but I will hear it. MS VANSTONE: I am not prepared to say in advance what I will be saying in my address. Either it is relevant or it is not. Your Honour said it is and one can make such use of it as properly there to be made. MR DAVID: My friend knows that is not right. It is admitted for a particular use. Sometimes evidence might be admitted for one use and not another. I think we are entitled to know and to argue what use is going to be made of this evidence. HIS HONOUR: But not at this stage I think. MR DAVID: Are we just going to save it up? HIS HONOUR: Vanstone is saying she can do, that she can have the evidence admitted, then it can be used only for the purposes for which it was admitted, but for those MR DAVID: Your Honour has made a ruling, she is arguing this on the basis of context. When your Honour uses the words 'I will allow it' you will allow it on That is what I want to know now or at some that basis? stage. HIS HONOUR: MR DAVID: What do you want to argue now though? I want to argue whether this evidence is admitted on the basis that it goes to the question of whether this man is likely to threaten my client in the way my client describes in his record of....,!~ . interview. HIS MONOUR: But that is a matter that you can take up at the appropriate time, which is not before the witness is called. MR DAVID: It might affect the cross-examination. I want to be clear on your Honour's ruling. It would be quite improper for my learned friend to put a basis of admissibility when the evidence is under objection, argue that and then use it for something else behind everyone else's back. HIS HONOUR: It wouldn't be improper if the evidence could be used for that purpose. You might argue for its admissibility on one plane but in due course the I can't see evidence may be used for another purpose. That wouldn't be improper. MR DAVID: why I can't argue that now. HIS MONOUR: I want to argue that now. evidence can be put until all of the evidence is in. MR DAVID: But we know what this man is going to say and it does affect, might affect the way that the defence go about it and often evidence is argued on the voir dire and then the judge says very clearly it can only be for that use. It is quite often done. HIS HONOUR: What ruling do you want at the moment? MR DAVID: The purpose for which it is alleged: 'I allow this evidence for the purposes of context.' HIS HONOUR: I can make that ruling but that will not prohibit Ms Vanstone in due course seeking to use it for another purpose, if in the context of all of the evidence it can be used for some other purpose. As I understand the application at the moment, Ms Vanstone's asked for the evidence to be admitted for the purpose of putting the circumstances of how the deceased came to be at the service station in context. If in due course, in the totality of the evidence, the evidence can be used for some other purpose, then she will no doubt use it is for that purpose. MR DAVID: Why couldn't we argue that now? HIS HONOUR: Because you haven't seen the totality of the evidence. MR DAVID: HIS HONOUR: evidence. MR DAVID: HIS HONOUR: There is nothing more. There may be, there may be your client's I don't follow. That is why you can't rule out for all time how the evidence can be used. It may only be used for a particular purpose now, it may be used for a wider purpose immediately before the case for the Crown is closed. It may be used for quite a different purpose after your client, if he wished to, gave evidence. You can't now say for the limited purposes for which the evidence can be used. MR DAVID: But there must be an admissibility basis now when the Crown is trying to get it in. HIS HONOUR: There is and I have allowed it, as I said, for context. And for nothing more at this stage? HIS HONOUR: No, I haven't stated any other purpose for which it may be used, nor has Ms Vanstone sought to use it for any other purpose, but by that I don't mean that she can't use it for any other purpose because the -_ state of the evidence may be such that it could be used for a number of purposes, I don't know, but at the moment it is to be used for contextual purposes. MR DAVID: I don't want to be vague about this. The area, in my submission, which it can't be used for is to try and interpret the actions of this person in the light of this other witness's comments on his character or behaviour or whatever it is before that. In my submission, no matter what the context is, no matter what evidence it gets out, I can't imagine that aspect of it being admissible. HIS HONOUR: That may be right but that is not a matter we have to face now I think. MR DAVID: I raise it now and I want to ~a~ke our position clear or that. HIS HONOUR: Do you wish to make any comment? MS VANSTONE: No. Can I hand forward the admissions we mentioned before lunch. Some of them haven't yet been made but that is a list that has been agreed. HIS HONOUR: Has Mr David seen that? MR DAVID: Yes, and they can be read out at an appropriate stage. But not yet. MS VANSTONE: No, there are a couple that concern the deceased that we will get to very soon. HIS HONOUR: How many of these have so far been announced? MS VANSTONE: One to four have not and 10 hasn't been either, although indeed we really have reached the stage where there has been evidence of it but there is confirmation that a malfunction caused that failure in the video equipment. Do you want these read then after you HIS HONOUR: have called all of your oral evidence, or some other time? MS VANSTONE: At the end of the Crown case will be KC 2E HIS HONOUR: MS VANSTONE: HIS HONOUR: MR DAVID: the way. MS VANSTONE: MS VANSTONE: There are a couple more agreed facts. am not sure whether it would be convenient for me to read through the entire list. I think it would be, if that suits you. Yes. Would that suit you, Mr David? Yes, I know some have been agreed along There are three new ones but I will start from the beginning. HIS HONOUR: Ms Vanstone will now read to. yeu. all of the agreed facts which have already been announced to you, plus, as you will hear, some other agreed facts. They total 11 in number, and you will' treat these facts, as I said before, as being facts proved beyond reasonable doubt because they have been agreed by the parties as to be the true facts. MS VANSTONE: 1. That the deceased died as a result of the effects of a pistol shot wound sustained at about 9.13 p.m. on Saturday, 14 October 1995 at premises at the corner of South Road and Richmond Road, Keswick. 2. The deceased was Dallis Thomas Milsom, born 5 April 1978. 3. The deceased was right handed. 4. That no traces of alcohol or common drugs were found in the blood of the deceased. 5. That the witness Margaret Teresa Rowe telephoned triple O and asked for the attendance of an ambulance at 9.13 pm. 6. That the video P8 was recorded automatically at the scene and shows a view of the events surrounding the shooting. It is programmed to record the events in faster than real time. It is not possible to enhance it visually or audibly. The lapse of time demonstrated numerically on it is correct, is accurate, correct. 7. The video P9 has been created from P8 and shows the events in real time. 8. The video P10 has been created from P8 and shows the events in real time and at a closer view. 9. The video Pll has been created from P8 and shows the events in real time and with some sound. 10. That due to a malfunction of equipment no recording either by video or audio tape was made of the interview between Detective Brennan and the accused at Police Headquarters on 14 October 1995. 11. The pistol shot sound occurred within the second labelled 21 13 7 on the video. MR DAVID: Those facts are so agreed. We were going to just attempt to agree MS VANSTONE: this matter of height. We still haven't come to an agreement, except that we can narrow it down, the accused's height, to 5 ft 6 or 5 ft 7 and really for our 10 HIS HONOUR: You are after imperial measures the equivalent of the metric measure? More than that. I am never confident MS VANSTONE: that these figures on police documents are necessarily accurate, they may be just an estimate. Dr James gave the height of 176 cms. For the deceased but I am talking about So if we narrow it down to 5 ft 6 or 5 ft HIS HONOUR: MS VANSTONE: the accused. 7 I think that is sufficient for our purposes. I acknowledge Mr Foreman was prepared to be measured but that hasn't taken place yet. HIS HONOUR: If the jury take it as an agreed fact that the accused is somewhere between 5 ft 6 and 5 ft 7 in height. MS VANSTONE: Yes. MR DAVID: Yes. HIS HONOUR: Treat that as a further agreed fact. CASE FOR THE CROWN MR DAVID SUBMITS THAT HE HAS MATTERS TO RAISE IN THE ABSENCE OF THE JURY HIS HONOUR DISCHARGES JURY UNTIL 10 A.M. TOMORROW MORNING MR DAVID: It is my submission that at this stage your Honour should direct a verdict of not guilty in relation to murder. In this case, in which most of the evidence is not in dispute, the Crown have to prove of course a deliberate killing, or with an intention to kill, grievous bodily harm. Assuming they have proved that, for the purposes of this argument, they also have to negate that which has arisen on the Crown case, namely the question of self defence. And they must negate, reading from s.15, 1, namely: 'Subject to ss.2A, a person does not commit an offence ... to prevent or terminate the unlawful imprisonment of himself, herself or another.' And of course placita 2 doesn't concern us here. It is really a question of negating self defence. As has been shown, on the evidence that has been produced, this man had what could only be described as a very real replica. HIS HONOUR: Sorry, can I take you back a bit. I understand the point you make about s.15.1. Why doesn't s.15.2 concern us? MR DAVID: The case here is not a matter. to prevent an unlawful imprisonment of himself. I don't think that arises on the evidence, I think what arises on the evidence is the question of defending himself. HIS HONOUR: You say the self defence is in relation To the defence of himself? MR DAVID: Yes, by this person weilding around with a gun. HIS HONOUR: MR DAVID: HIS HONOUR: MR DAVID: HIS HONOUR: submission. MR DAVID: And it is not under (b) iii. No, I don't think that arises for the purposes of my present submission. In my submission if the Crown have not negated 15.1.A or haven't presented sufficient evidence to negate that at this stage, he is not guilty of murder, and really the rest doesn't arise. That gives him an absolute defence. The rest arises only if that does exist. But ss.1 is subject to ss.2? Yes. So you have to read ss.2 for either Yes, but I don't think, as I read it, and I know it is very difficult, but ss.2, although it is subject to ss.2, means, in my submission, that he doesn't commit an offence but ss.2 comes into play if the Crown have negated the defence in ss.1 and then there still might be a partial defence if ss.2 applies. HIS MONOUR: You will have to educate me but I don't read it that way. I read s.15.1 this way, that a person does not commit an offonce under s.15.1 by using force against another if that person genuinely believes that force is necessary and reasonable, unless, under ss.2, where the person causes death. Where the person causes death there is another test, and that other test may, if unsatisfied, reduce the matter to manslaughte_r..~... MR DAVID: Yes. Even if that is so I still have a a submission to make. HIS HONOUR: Yes, you have but I don't read it the Way that you read it. I read it that s.15.1 applies onlyby itself if it is not a death case. Once it is a death case you have to have regard, whatever the circumstances in which the force was raised, to s.15.2 and then in the circumstances and if under ss.2 - MR DAVID: That would give the strange result that even if a person acted in proper self defence, there would be no defence if he intended to kill another person. HIS HONOUR: No, only if that person acted with criminal negligence. So if the person genuinely believed the force was reasonable and necessary., and if the person used force against another genuinely believing the force was necessary and reasonable, the person may not be convicted of murder but will be convicted of manslaughter if at the same time that person acted with criminal negligence. There are three steps. MR DAVID: The person may not be convicted of murder but may, if he or she acted with criminal negligence, be convicted of manslaughter. So, as I see it at this stage, the Crown have to negate the fact that a person does not commit any offence, that he has not used force against another - HIS HONOUR: Can I put it around the other way before we get to the negating, as I understand it. A person would not be guilty of an offence if, firstly, the person genuinely believed that the force was necessary and reasonable to defend himself. MR DAVID: Yes. HIS HONOUR: They have to negate that. However, if death is caused in the application of that force, then 2B comes into play and that person's belief as to the nature or extent of the necessary force is grossly unreasonable, which is then an objective test The crime is reduced to manslaughter if the person acted with criminal negligence. MR DAVID: Yes. HIS HONOUR: It is a shocking section. So what the Crown at this stage have to give evidence of, appears to be, (1) That there was a genuine belief on his part, negate that (2) That, objectively speaking, that that action that he took in pursuance of that genuine belief is grossly unreasonable. Am I right there? I think we are ad idem there. HIS HONOUR: Can I try it my way? Firstly, the Crown will need to negate that there was a genuine belief If they negate there, it's murder and murder held. alone. MR DAVID: Yes. HIS HONOUR: If, however, they fail to negate the existence of a genuine belief, then they must establish that the nature that - they must negate that the person's belief, that is the accused's belief, as to the nature or extent of the necessary force was-g~essly unreasonable. And then establish~criminal negligence and then it will be manslaughter. MR DAVID: Yes. HIS HONOUR: Can I interrupt. If you made a submission now that they had failed to negate the genuine belief, then your client would only ever have to answer manslaughter. MR DAVID: Yes, and he wouldn't have to answer manslaughter if, objectively speaking now, that genuine' belief, there was no evidence to go to the fact that that genuine belief was unreasonable. Is grossly unreasonable judged by reference to the circumstances as he believed them to be. MR DAVID: Yes. HIS HONOUR: If, of course, and only if he is acting in defence of himself or Mrs Rowe, but if he's acting under B, then C comes into play. Yes, that's the point. So what we are MR DAVID: looking at now, for the purposes of our present argument, is the state of the evidence, if I could put it that way, neutrally, in relation to this subject of state of mind as far as genuine belief and (b) the objective state of the evidence, those two factors. purpose. HIS NONOUR: MR DAVID: funny sort of way, not a long way away from the common law self-defence,. In my submission, the practical factual basis upon which this all rests is the state of the evidence about whether this man, the deceased, turned around in a threatening motion with the revolver. In my submission, if there is evidence to go to a jury, which a jury, under the appropriate test, can say at this stage that it could be proved beyond reasonable doubt that that was the - that the state of play was that this did not happen, well, then, there is a case to answer. If, however, pursuant to the test un~r. Billick and Starke, if the circumstantial evidence which is led is in such a state that there is no proper evidence to go to a juryby which they could say that it might be that it could be proved beyond reasonable doubt that this did not happen, then it would follow from that that both - that the subjective test and both the objective test - in my submission, there is not sufficient evidence to go to a jury to say that they didn't exist, because it would follow that if this man was swinging around with a gun, in that split second, what he did was both subjectively and objectively reasonable and. Had to be so. that. HIS HONOUR: don't you have to satisfy me at the moment that the Crown have failed to prove one element of the offence? MR DAVID: different way. Go to Billick and Starke, which talks about circumstantial evidence. That element which deals with self-defence in this case depends upon the factual situation of whether this man threatened with a gun my client. That's the factual basis upon which the whole question of self-defence rests on both sides, both either negating it or establishing it. In Rv Bilick, the test at the no case to answer stage, where the evidenceis circumstantial evidence, is set out very clearly. 36 SASR p.321 at p.337. HIS HONOUR: MR DAVID: Honour. HIS HONOUR: MR DAVID: Shall I get it now? I don't have it. I could read the test out to your Thank you. It's much cited. It says this: 'The case against the appellant ... reasonable doubt of the guilt of the accused.' That, as it seems to me, was the question the trial judge was called upon to answer. That's the judgment of the former Chief Justice and that's been really the standard at this stage in relation to circumstantial evidence, that that test has to be satisfied. In relating that test to this factual situation, what, in my submission, we are talking about is do the circumstances which have been presented on this question of whether he turned with the gun, because there's no direct evidence, do the circumstances, are they capable, putting every assumption and every inference at its highest, are they capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt? And, in my submission, they are not. In my submission, the evidence of a circumstantial nature which is being led on that question and, indeed, points the other way, if I could point out these matters to your Honour. There is no doubt that this man had a very accurate replica revolver. There is no doubt that he was robbing this particular place and there is no doubt that he was brandishing a knife in the way Mrs Rowe describes. There is no doubt, on the forensic evidence, that after the last time he appears in view on the film he makes a manoeuvre to the left, swinging about halfway around, as Dr James said, and there is no evidence to say one way or the other whether, in swinging around, he had the gun out in front of him in a motion to swing around to threat. HIS HONOUR: Is there any evidence he had the gun on in his right hand? MR DAVID: Yes, on the film. HIS HONOUR: MS VANSTONE: HIS HONOUR: MR DAVID: the way. MS VANSTONE: There are a couple more agreed facts. MS VANSTONE: am not sure whether it would be convenient for me to read through the entire list. I think it would be, if that suits you. Yes. Would that suit you, Mr David? Yes, I know some have been agreed along There are three new ones but I will start from the beginning. HIS HONOUR: Ms Vanstone will now read to. yeu. all of the agreed facts which have already been announced to you, plus, as you will hear, some other agreed facts. They total 11 in number, and you will' treat these facts, as I said before, as being facts proved beyond reasonable doubt because they have been agreed by the parties as to be the true facts. MS VANSTONE: 1. That the deceased died as a result of the effects of a pistol shot wound sustained at about 9.13 p.m. on Saturday, 14 October 1995 at premises at the corner of South Road and Richmond Road, Keswick. 2. The deceased was Dallis Thomas Milsom, born 5 April 1978. 3. The deceased was right handed. 4. That no traces of alcohol or common drugs were found in the blood of the deceased. 5. That the witness Margaret Teresa Rowe telephoned triple O and asked for the attendance of an ambulance at 9.13 pm. 6. That the video P8 was recorded automatically at the scene and shows a view of the events surrounding the shooting. It is programmed to record the events in faster than real time. It is not possible to enhance it visually or audibly. The lapse of time demonstrated numerically on it is correct, is accurate, correct. 7. The video P9 has been created from P8 and shows the events in real time. 8. The video P10 has been created from P8 and shows the events in real time and at a closer view. 9. The video Pll has been created from P8 and shows the events in real time and with some sound. 10. That due to a malfunction of equipment no recording either by video or audio tape was made of the interview between Detective Brennan and the accused at Police Headquarters within the second labelled 21 13 7 on the video. on 14 October 1995. 11. The pistol shot sound occurred Those facts are so agreed. MR DAVID: We were going to just attempt to agree MS VANSTONE: this matter of height. We still haven't come to an agreement, except that we can narrow it down, the accused's height, to 5 ft 6 or 5 ft 7 and really for our 10 HIS HONOUR: You are after imperial measures the equivalent of the metric measure? MS VANSTONE: More than that. I am never confident that these figures on police documents are necessarily accurate, they may be just an estimate. HIS HONOUR: Dr James gave the height of 176 cms. For the deceased but I am talking about the accused. So if we narrow it down to 5 ft 6 or 5 ft 7 I think that is sufficient for our purposes. I acknowledge Mr Foreman was prepared to be measured but that hasn't taken place yet. HIS HONOUR: If the jury take it as an agreed fact that the accused is somewhere between 5 ft 6 and 5 ft 7 in height. MS VANSTONE: Yes. MR DAVID: Yes. HIS HONOUR: Treat that as a further agreed fact. CASE FOR THE CROWN MR DAVID SUBMITS THAT HE HAS MATTERS TO RAISE IN THE ABSENCE OF THE JURY HIS HONOUR DISCHARGES JURY UNTIL 10 A.M. TOMORROW MORNING MR DAVID: It is my submission that at this stage your Honour should direct a verdict of not guilty in relation to murder. In this case, in which most of the evidence is not in dispute, the Crown have to prove of course a deliberate killing, or with an intention to kill, grievous bodily harm. Assuming they have proved that, for the purposes of this argument, they also have to negate that which has arisen on the Crown case, namely the question of self defence. And they must negate, reading from s.15, 1, namely: 'Subject to ss.2A, a person does not commit an offence ... to prevent or terminate the unlawful imprisonment of himself, herself or another.' And of course placita 2 doesn't concern us here. It is really a question of negating self defence. As has been shown, on the evidence that has been produced, this man had what could only be described as a very real replica. HIS HONOUR: Sorry, can I take you back a bit. I understand the point you make about s.15.1. Why doesn't s.15.2 concern us? MR DAVID: The case here is not a matter. to prevent an unlawful imprisonment of himself. I don't think that arises on the evidence, I think what arises on the evidence is the question of defending himself. HIS HONOUR: You say the self defence is in relation To the defence of himself? MR DAVID: Yes, by this person weilding around with a gun. HIS HONOUR: MR DAVID: HIS HONOUR: MR DAVID: HIS HONOUR: submission. MR DAVID: And it is not under (b) iii. No, I don't think that arises for the purposes of my present submission. In my submission if the Crown have not negated 15.1.A or haven't presented sufficient evidence to negate that at this stage, he is not guilty of murder, and really the rest doesn't arise. That gives him an absolute defence. The rest arises only if that does exist. But ss.1 is subject to ss.2? Yes. So you have to read ss.2 for either Yes, but I don't think, as I read it, and I know it is very difficult, but ss.2, although it is subject to ss.2, means, in my submission, that he doesn't commit an offence but ss.2 comes into play if the Crown have negated the defence in ss.1 and then there still might be a partial defence if ss.2 applies. HIS MONOUR: You will have to educate me but I don't read it that way. I read s.15.1 this way, that a person does not commit an offonce under s.15.1 by using force against another if that person genuinely believes that force is necessary and reasonable, unless, under ss.2, where the person causes death. Where the person causes death there is another test, and that other test may, if unsatisfied, reduce the matter to manslaughte_r..~... MR DAVID: Yes. Even if that is so I still have a a submission to make. HIS HONOUR: Yes, you have but I don't read it the Way that you read it. I read it that s.15.1 applies onlyby itself if it is not a death case. Once it is a death case you have to have regard, whatever the circumstances in which the force was raised, to s.15.2 and then in the circumstances and if under ss.2 - MR DAVID: That would give the strange result that even if a person acted in proper self defence, there would be no defence if he intended to kill another person. HIS HONOUR: No, only if that person acted with criminal negligence. So if the person genuinely believed the force was reasonable and necessary., and if the person used force against another genuinely believing the force was necessary and reasonable, the person may not be convicted of murder but will be convicted of manslaughter if at the same time that person acted with criminal negligence. There are three steps. MR DAVID: The person may not be convicted of murder but may, if he or she acted with criminal negligence, be convicted of manslaughter. So, as I see it at this stage, the Crown have to negate the fact that a person does not commit any offence, that he has not used force against another - HIS HONOUR: Can I put it around the other way before we get to the negating, as I understand it. A person would not be guilty of an offence if, firstly, the person genuinely believed that the force was necessary and reasonable to defend himself. MR DAVID: Yes. HIS HONOUR: They have to negate that. However, if death is caused in the application of that force, then 2B comes into play and that person's belief as to the nature or extent of the necessary force is grossly unreasonable, which is then an objective test The crime is reduced to manslaughter if the person acted with criminal negligence. MR DAVID: Yes. HIS HONOUR: MR DAVID: So what the Crown at this stage have to give evidence of, appears to be, (1) That there was a genuine belief on his part, negate that (2) That, objectively speaking, that that action that he took in pursuance of that genuine belief is grossly unreasonable. Am I right there? I think we are ad idem there. HIS HONOUR: Can I try it my way? Firstly, the Crown will need to negate that there was a genuine belief If they negate there, it's murder and murder held. alone. MR DAVID: HIS HONOUR: Yes. If, however, they fail to negate the existence of a genuine belief, then they must establish that the nature that - they must negate that the person's belief, that is the accused's belief, as to the nature or extent of the necessary force was-g~essly unreasonable. And then establish~criminal negligence and then it will be manslaughter. MR DAVID: Yes. HIS HONOUR: Can I interrupt. If you made a submission now that they had failed to negate the genuine belief, then your client would only ever have to answer manslaughter. MR DAVID: Yes, and he wouldn't have to answer manslaughter if, objectively speaking now, that genuine' belief, there was no evidence to go to the fact that that genuine belief was unreasonable. HIS HONOUR: Is grossly unreasonable judged by reference to the circumstances as he believed them to be. MR DAVID: Yes. HIS HONOUR: If, of course, and only if he is acting in defence of himself or Mrs Rowe, but if he's acting under B, then C comes into play. MR DAVID: Yes, that's the point. So what we are looking at now, for the purposes of our present argument, is the state of the evidence, if I could put it that way, neutrally, in relation to this subject of state of mind as far as genuine belief and (b) the objective state of the evidence, those two factors. funny sort of way, not a long way away from the common law self-defence,. In my submission, the practical factual basis upon which this all rests is the state of the evidence about whether this man, the deceased, turned around in a threatening motion with the revolver. In my submission, if there is evidence to go to a jury, which a jury, under the appropriate test, can say at this stage that it could be proved beyond reasonable doubt that that was the - that the state of play was that this did not happen, well, then, there is a case to answer. If, however, pursuant to the test un~r. Billick and Starke, if the circumstantial evidence which is led is in such a state that there is no proper evidence to go to a juryby which they could say that it might be that it could be proved beyond reasonable doubt that this did not happen, then it would follow from that that both - that the subjective test and both the objective test - in my submission, there is not sufficient evidence to go to a jury to say that they didn't exist, because it would follow that if this man was swinging around with a gun, in that split second, what he did was both subjectively and objectively reasonable and. HIS HONOUR: Had to be so. that. don't you have to satisfy me at the moment that the Crown have failed to prove one element of the offence? MR DAVID: different way. Go to Billick and Starke, which talks about circumstantial evidence. That element which deals with self-defence in this case depends upon the factual situation of whether this man threatened with a gun my client. That's the factual basis upon which the whole question of self-defence rests on both sides, both either negating it or establishing it. In Rv Bilick, the test at the no case to answer stage, where the evidenceis circumstantial evidence, is set out very clearly. 36 SASR p.321 at p.337. HIS HONOUR: MR DAVID: Honour. HIS HONOUR: MR DAVID: Shall I get it now? I don't have it. I could read the test out to your Thank you. It's much cited. It says this: 'The case against the appellant ... reasonable doubt of the guilt of the accused.' That, as it seems to me, was the question the trial judge was called upon to answer. That's the judgment of the former Chief Justice and that's been really the standard at this stage in relation to circumstantial evidence, that that test has to be satisfied. In relating that test to this factual situation, what, in my submission, we are talking about is do the circumstances which have been presented on this question of whether he turned with the gun, because there's no direct evidence, do the circumstances, are they capable, putting every assumption and every inference at its highest, are they capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt? And, in my submission, they are not. In my submission, the evidence of a circumstantial nature which is being led on that question and, indeed, points the other way, if I could point out these matters to your Honour. There is no doubt that this man had a very accurate replica revolver. There is no doubt that he was robbing this particular place and there is no doubt that he was brandishing a knife in the way Mrs Rowe describes. There is no doubt, on the forensic evidence, that after the last time he appears in view on the film he makes a manoeuvre to the left, swinging about halfway around, as Dr James said, and there is no evidence to say one way or the other whether, in swinging around, he had the gun out in front of him in a motion to swing around to threat. HIS HONOUR: Is there any evidence he had the gun on in his right hand? MR DAVID: HIS HONOUR: MR DAVID: clear. HIS HONOUR: MR DAVID: You've taken that off the photographs. Yes. If one looks at 91, it's very I've seen it. So in the film he had it in his right hand, where he's running out or walking quickly out he's got it in his right hand. The last time he is seen he makes a drastically different - he is in a drastically different position than when he's shot and when he's shot and the gun fires, according to Dr James, it's almost simultaneous. he's swun9 to the left with the gun out in front of him or not is an unknown quantity. That is what is being left to the jury. In my submission, no reasonable jury could say it's proved beyond reasonable doubt that he wasn't swinging around with the gun in front of him. HIS HONOUR: might be wrong about this - isn't that a step or two away from the test. Isn't the first test to determine whether or not there is sufficient evidence to go to the jury that the Crown has proved each and every element of the offence? MR DAVID: you mentioned when you commenced your address but they must prove one other matter that you didn't allude to, that is implicit, of course, in your submissions, they must prove the killing was unlawful. HIS HONOUR: That's the element we are talking about. To prove the killing was unlawful, they must negate, mustn't they, a genuine belief on the part of your client that the force he used was necessary and reasonable. Don't they do that by proving actus reus at this stage from which you can infer that the killing was MR DAVID: unlawful? HIS HONOUR: MR DAVID: the whole of the actus reus and the whole of the scene. You just can't say, as a matter of logic, if there is a So he's swung to the left.,-whether -.~11 killing, therefore there is murder, if there is a shooting, therefore there is a murder. HIS HONOUR: No, but it's like the other aspect of the definition of murder, it's got to be voluntary, that's not a matter that needs to be explored unless it's raised, is it? I suppose in your case you say it's simply raised by his answers. MR DAVID: The facts themselves, here is a robbery, here is a man with a gun. So it's the element of unlawfulness that we are talking about. That has to go to the jury, there has to be evidence under the. test in Billick and Starke which talks about that. Not only is it almost impossible to negate that, but if one looks even carefully at the evidence now, it's my submission that we have a situation where there being clear evidence on the Crown case of a movement to the left, particularly at this particular period of time, which is, if your Honour will remember, is after this person is out of sight of the camera and between that and the firing of the shot, when my client says he saw him turn. All right, there's a 50/50 chance, I suppose, if one wants to be a betting person, that he might have been swinging left to go outside as distinct from swinging left to turn around and threaten the accused. Although there's no evidence of that. That would have to be what I might call a bit of a guess or an inference that might be argued that they might make, but whether they could draw - a reasonable jury could say that's been proved beyond reasonable doubt is another question. But it goes a little further than that because if your Honour can remember on the view, the position of the deceased, in photo 92, which I cross-examined Dr James about, which I took up that position on the view, A92, the last position that he's seen in, if one just continues on, it's my submission that a turn to the left at least halfway around wouldn't put him out the door at all. In fact, he would go out the door by moving straight on, rather than a half turn to the left. HIS HONOUR: photograph 92. MR DAVID: HIS HONOUR: photograph 93. MR DAVID: HIS HONOUR: But he doesn't turn half left at No, he continues on. He doesn't turn half left probably at He is out of view then. He hasn't yet turned half left because if you look at your client's arm, that would suggest otherwise, he turns left during photograph number 94, doesn't he? MR DAVID: maybe. HIS HONOUR: been travelled, say, between 91 and 92, he would have travelled a fair distance, which would have put him near the door. MR DAVID: continue on. HIS HONOUR: He doesn't have to turn left. 92 and 94 he would have covered at least the distance between 91 and 92, which would have put him adjacent to the door and turning towards the door or could be turning towards the door. MR DAVID: straight out the door. He doesn't have to turn left to go out that door. That was the whole object of that exercise. If one looks at the blood trail, it has, in fact, gone off to the right. HIS HONOUR: establishes a lot, does it? MR DAVID: position of whether a reasonable juror could say these inferences can be drawn to the point of evidence beyond reasonable doubt on this element, what we are looking at is that Dr James' evidence is consistent with the gun swinging around, it might also be consistent with other things that he says, but those other things certainly of themselves aren't inevitable. HIS HONOUR: But where does all that take you Mr David in relation to the question of unlawfulness? MR DAVID: Unlawfulness has to be proved and it has to be proved that he did not act - forget s.15 - if I could paraphrase - in reasonable self-defence. That has to be proved. Evidence beyond reasonable doubt to a proper juror is well short of that in this case because there is evidence before the court that the manoeuvre that this man makes is consistent with a situation which would put us in a position of fear as to satisfy s.15. HIS HONOUR: Your case is that there is ne..evidence beyond reasonable doubt that he did not genuinely believe that the force was necessary and reasonable and you say that's the test I have to - MR DAVID: And also objectively speaking. HIS HONOUR: That's another test, that goes to whether or not you withdraw manslaughter from the jury as well. The first is whether you withdraw murder. MR DAVID: My submission is both. On the basis once there is a doubt about that turning manoeuvre, so it shouldn't go to the jury, the objective test would fade away. HIS HONOUR: There is no objective test in that first part. S.15(1)(a) is a subjective test. MR DAVID: I shouldn't be intruding into - If your Honour is against me, this would have been one of those cases wher~ your Honour should give a Prasad invitation, not a direction, or a Prasad explanation. I wouldn't ask for any type of direction, it's misconceived that's a direction of course, but you should remind the jury that on the material they have got before them, if they think one of the elements has not been proved beyond reasonable doubt at this stage, they can bring in a verdict of not guilty to murder. I make that application for this reason: This submission does not depend on credibility of witnesses at all. The Crown case is, in a sense, as far as the objective facts are concerned, almost agreed. It is all before the jury in a very clear form. They can draw all the inferences they want to from what they see now, it's not as if this whole area of evidence which - is in dispute, which people have been cross-examined on as to truthfulness and all things like that. It is all before them. It is succinct. Only been two days of evidence, undisputed, as distinct from a more complicated trial, where, to give a Prasad direction now would incur your Honour giving directions which may not be appropriate. Cox J is concerned, on Prasad directions, in complicating cases. This is, in a sense, factually straight. forward, simple and, indeed, uncontested. CONTINUED What is left is what the jury thinks of the question of lawfulness on the material that is placed before them now. If your Honour is against me as a matter of strict law pursuant to the principles of Bilick and Starke, I would ask your Honour to give a reminder of the principles of Prasad. HIS HONOUR: I don't quite follow that. You are not asking for a Prasad direction. MR DAVID: No, I am saying that, because there is no such thing as a Prasad direction. I am being clever. HIS HONOUR: But a reminder of the principles in Prasad is a reminder, as you will correct me again, OF the unsatisfactory nature of the evidence, isn't it? That is not really the case here. MR DAVID: It is a reminder that, at this stage of the case, if they are of the view that an important element has not been proved, beyond reasonable doubt, and that may be the unsatisfactory nature of the evidence in the sense of an element not being proved, they can bring in a verdict of not guilty. HIS HONOUR: But that sort of invitation is a bit like a judge who is not prepared to make a finding of no case, but then asks the jury if they are prepared to make it. MR DAVID: That is the law. HIS HONOUR: I think not, it is not a no case. A Prasad practices is different to a no case. It is different to a no case, but that is what I am asking your Honour to do. To tell them that they have a right to do it. I will get Prasad. We might as well go to the source. the quoted passage is at p.163: 'It is of course ... may do so then, or at any later stage of the proceedings.' That has become a term of art and it is now known as a Prasad direction, which is not really a direction. HIS HONOUR: Which, as you say, is not a direction. MR DAVID: done regularly in these courts. HIS HONOUR: to be. MR DAVID: this is a most unusual case in which it is appropriate. It is a short succinct case in which all the evidence, really uncontested, is before the jury on this one point of lawfulness, which they might want to come to a conclusion on now. They may not. And, in my submission, if your Honour is against me on the first application, it would be appropriate to give that type of invitation to the jury. MS VANSTONE: relating to the test. Which test? The test of case to answer. The test HIS HONOUR: MS VANSTONE: was discussed more recently than Bilick and Starke in the context of some criticism of Bilick in another case, in the case Questions of Law Reserved on Acquittal No.2 of 1993 (1993) 61 SASR at p.1. And the then Chief Justice took the opportunity to restate the principles relating to case to answer. I haven't analysed.them.to see if there is much difference, but there it is. It is a case which was a circumstantial evidence case and the principles are restated at p.5 to the court. That is a case that was argued after the High Court decision of Doney (1990) 171 CLR at p.207. That was an importation. Of cannabis case and not, as I understand it, wholly circumstantial. But can I just refer to the test found there in the judgment too, because it is instructive for another reason, in my submission. On the final page of the report, the court said: 'It follows that ... guilty, the matter must be left to the jury for its decision.' That is in the ALJR report p.65 at p.45 and that passage appears on p.48, but it is the last page of the The reason I draw your Honour's attention to that is because this being a largely circumstantial case, although of course we have a lot of direct evidence leading up to it, it is very easy to fall into the trap of imposing your own interpretation of those facts. Whereas, in my experience, juries have difficulty with circumstantial evidence cases, because people take such different views of what can properly be inferred from circumstances. So, whatever view your Honour might have, at the present time, one has to be very elastic when dealing with this issue. And might I also say of course that, if your Honour decides it now, your Honour decides it in the context of only seeing the videos played yesterday. Whereas of course, at the end of the day, at the end of the week, if the jury are asked to deliberate, no doubt they will look time and time again at one or more of those videos. So, if your Honour was against the Crown case, in the Crown submission I would ask your Honour to look long and hard at the videos before making any decision. So, in my submission, the test is relatively clear and the crucial issue, of course, as Mr David has said, is was there a threat by the deceased? HIS HONOUR: If I was to withdraw murder from the jury, it would only be because, would it not, I think, if you have failed to negate s.15 (1)(a)? MS VANSTONE: Yes. Do you agree with that? MS VANSTONE: HIS HONOUR: That you have failed to lead evidence, however tenuous, which would negate the defence arising by the accused having a genuine belief that force was necessary and reasonable? MS VANSTONE: Yes. HIS HONOUR: What do you say then that the evidence is that negates that offence? MS VANSTONE: Can I say just that, in my submission, HIS HONOUR: it comes down to whether or not there was any sort of threat, whether a direct pointing of the gun, or something less than that. absence of threat shows the absence of a genuine belief, or by inference? MS VANSTONE: If we haven't excluded a pointing of this replica weapon in the accused's direction, then I accept that there is no case. HIS HONOUR: read overnight? MS VANSTONE: two recent decisions on the Prasad direction. recently, hasn't there? HIS HONOUR: MS VANSTONE: There has, but the best case on that is Pahuja No.1. That is really the leading case since Prasad itself, in my submission. HIS HONOUR: MFI P13 RETURNED TO CUSTODY OF COURT BY MR HARRIS ADJOURNED4.30 P.M. TO WEDNESDAY, 15 MAY 1996 AT 10 A.M. WEDNESDAY 15 MAY 1996 RESUMING 10.15 A.M. JURY NOT PRESENT HIS HONOUR: Would counsel agree to me se~ing a message to the jury to say that there has been some delay? MS VANSTONE: HIS HONOUR: MR DAVID: MS VANSTONE: Yes. Are you happy with that, Mr David? Yes. Can I just mention that, depending on the way things develop, I might be asking for your Honour to look at the videos repeatedly, so we might be some little time. HIS HONOUR: How long do you expect to be? MS VANSTONE: Just on what I have got to say, not terribly long, probably ten minutes, but if it is a matter of going to the videos, obviously that might take longer. HIS NONOUR: Should we tell the jury not before 10.45, or even longer? I think it is about the mark. MS VANSTONE: HIS HONOUR: The jury can be told that, because of the court otherwise being used and because of legal argument, we won't be able to start until 10.45. Can I mention another thing just before you do start, Ms Vanstone. My tipstaff ran into a juror who was lost this morning walking up to the other court and escorted the juror down to this court. I take it you have no problem with that? MS VANSTONE: No. Certainly not. MS VANSTONE: In my submission, the only question that falls for decision, at this stage, is is there material before the jury upon which they can conclude that the firing of the weapon by the accused was unlawful? And that comes down to is there material on which they can conclude that there was no genuine belief that the force was necessary and reasonable? That in turn comes down to the simple question can we exclude some sort of threat by the deceased? That is the only question, at this stage, in my submiSSion. And the Crown would submit that, plainly, there is material before the jury which would entitle them to reach that conclusion. There are principal items of evidence which point directly, in my submission, to that conclusion. There is some other lesser matters that give them a bit of support but, in my submission, there are two matters that really conclude this issue, and they are the wound track and its position, and the accused's activities, as seen in the video and on the photos, right throughout the incident. Dealing with the first, I won't reiterate the evidence, Your Honour knows it well, but the fact is the man was shot in the back. We know the angle is 50 degrees backwards. It is more than 45 degrees, obviously. It is closer to a direct hit in the back than the other way. That, on its face is, in my submission, incompatible with a turning round to point the weapon at the accused. Of course, it could be done, it could be done, but it is a highly contortious act, remembering that the deceased's shoulder has to be raised, he is running, and he has to bring up his right hand to a point where he can show it to the accused and point it back in his direction. That is a highly unusual movement, in my submission. If he wants to use this replica at that point to threaten the accused, or indeed Mrs Rowe, then the obvious thing to do is to turn and face them and present the weapon to them. That is the first matter. The second matter involves looking at the accused's activities, as the events unfold. And I refer your Honour to the still photographs, Exhibit P12. I start at No.56. Of course, just backtracking a bit, the accused is sitting down. We can see his leg and his cup of coffee in the early photos. Then, at about 49 or 50, he starts to get up. In 54 he takes a step out into the console area and then, in 55, 56 and 57 they show the movement of the accused's right hand into. his..~ocket. And we know, we can accept that the Beretta pistol is indeed located in the pocket. And there is no disputing what he says to the police, that he put his hand in his pocket at an early stage, because that's where the pistol was. At that stage, of course, we can see the robber at the counter and indeed in No.55 I think we can see the white plastic bag there. HIS MONOUR: That is in 57? MS VANSTONE: You can see it in all three of those photos, I think. There is a sort of blob of white and we can see less of in 57 than we could in 55, which is compatible, I suggest, with Mrs Rowe holding it and preparing to put money into it. CONTINUED m HIS HONOUR: Just before you get to that, there are a couple of forward movements by the accused, apparently in photographs 57, 58 and then at 59 and 60. It would appear that the deceased is looking in his direction and that they are looking at each other, but whether they can see each other we don't know. MS VANSTONE: I think that nuts display had some glass in it or perspex, you can probably see a bit, but I was about to take your Honour to 65, where the deceased is clearly producing the knife to the accused. With the left hand. HIS HONOUR: Yes, you can see the flash of knife MS VANSTONE: there and indeed that is visible on the video, probably more clearly. And they seem to engage each other for quite a few frames, which of course doesn't amount to much in time but that seems to be the case, that the deceased's attention was focused on the accused, presumably while Mrs Rowe is busy trying to get the money. HIS HONOUR: That does suggest they have seen each Yes, no question of that. Of course the other. MS VANSTONE: accused's hand seems to still be in his pocket at that stage but, obviously, while the attention of the robber is on him he's probably just going to stay put. If we move on to 77, 78, 79 and 80, they seem to show the accused turning away so as to present his right shoulder to the robber and the robber seems to have now turned back to Mrs Rowe and to be focusing on her. Then in 80 there is a white mark down near the position where one would expect the accused's right hand to be, which could well be the pistol being drawn out of the pocket. That is consistent with the following photographs, 81, 82, 83, 84, 85, 86, 87 and indeed 88, because clearly, through those frames the accused has got his back to the robber, he's got the pistol in his hands and he's obviously doing something with it and quite obviously he is cocking it. And indeed his stance in doing that is rather similar, I suggest, to the stance of Mr De Laine the other day when he cocked the weapon, put the magazine in and slid back the bolt. I think it is called a bolt. HIS HONOUR: It looks like as well by that stage, and through photographs 79 onwards, the accused has also moved back towards the southern end of the premises. He has gone out of the doorway. MS VANSTONE: Yes, he has moved back and he has put more of his back towards the robber. So he would be less easy to see and HIS HONOUR: presumably the robber would be almost impossible for him to see. MS VANSTONE: Yes. 85, turning back to the robber's movements, 85 shows him about to move away. 86 he is turning to his right, and then 87 he has turned just about fully around and obviously he has turned facing the window. He seems to have discounted any need to have another look at what the accused is up to at that stage. Then he begins to head out at this stage. Of course Mrs Rowe hasn't seen the weapon, she never sees it until the end, and the accused told the accused that he hadn't seen it. 88 shows the deceased slightly turning to his right and 89 he turns further to his right and he appears to be looking over to the accused in his direction. When he turns to his right he dips and HIS HONOUR: then raises his right shoulder. That is true. Then 90 he continues on. MS VANSTONE: 91 he has made a bit of ground. 91A is an extra frame, it is not in the same sequence of 3 per second. There is a close-up in 91B. HIS HONOUR: Three per second, aren't they, the frames? MS VANSTONE: Yes, what we get for these extra bits being put in are 3 per second. 92 we see his right arm down. 92A is a close-up of that, and 93 he has gone. Then if we focus again on the accused, 91A shows him about to turn back to his right. 92 shows a continuation of that movement. 93 the gun is in his right hand, it is coming up. And 94 has him standing upright with the right arm extended and in all probability that's where the shot is fired or as near as we get to it. We know it is fired in that second and there are three frames in that second I think but clearly he has already fired it by the end of the seventh second of that minute. It is plain from all that that before there is any suggestion of this robber having a gun or a r~plica gun, he is loading his pistol. Unless he saw it whilst he was standing He said to the police he didn't. So he there. HIS MONOUR: MS VANSTONE: is loading it at a time when, as far as he knows, the only weapon is this knife, and at a time when Mrs Rowe has co-operated, the robber is calm and quiet, the robbery is in progress and nothing yet seems to be going wrong. So, by the time he turns round the robber is right back towards the door. He has already made all that ground. He turns around and the photos show, as indeed the video obviously does, he shoots straight away. He turns, aims and shoots. The jury are entitled to conclude from all that that this is one course of action that has been determined right at the time when he puts his hand in his pocket to get his pistol. If that's so, if he has made up his mind that he is going to shoot this man way back at the beginning, and if he only manages to do it just before the man leaves the door, then he's not shooting because of some sort of threat that's made at him, he's shooting because he wants to apprehend the armed robber. Your Monour doesn't have to find that beyond reasonable doubt, all your Honour has to findis that it is open to- the jury to conclude that's how it was. HIS HONOUR: Do you say it would be open to the jury to conclude that he wasn't acting in defence of himself but only acting under s.15.1A3 or whatever it is, to apprehend the robber? MS VANSTONE: Yes, I guess that is the next step but we don't need to worry about that at this stage, we are only concerned with whether we can disprove a genuine belief that this force was necessary and reasonable in defence of himself. That is the murder question. If we can't do that now, then the information goes out the window, that's the end of it. In his interview, the accused rather gives the impression that he got his gun cocked, turned around and he was watching the..~obber leave the premises. That is not how it was, the photos show that he has turned around and discharged the weapon. Now, it is convenient to deal with the photos and look at it in that way but of course the best picture is the one on the video and in my submission it is even clearer on the video that he turns around and bang. is such a continuous fluid action that the jury are entitled to say that that's what he was about when he turned his back to the robber and cocked his weapon, that was always what was going to happen. Of course they have got Dr James's evidence as well and all that does is strengthen that conclusion, depending on the way they look at it, but the fact is the man is shot in the back. It is not as if there is any suggestion in Dr James's evidence that he has turned around to point his weapon. Certainly Dr James says he could have been part way through a turn round but, at the end of the day, he has still got his back presented to the accused. They are the essential items of evidence. There are other subsidiary arguments I could put, like the stupidity of this robber presenting this replica pistol at the last minute when he's almost out the door, but in-- my submission they are relatively minor arguments and more contentious arguments in the context of this submission. MR DAVID: RESUMING 11.35 A.M. MS VANSTONE: falls for decision, at this stage, is is there material before the jury upon which they can conclude that the firing of the weapon by the accused was unlawful? And that comes down to is there material on which they can conclude that there was no genuine belief that the force was necessary and reasonable? That in turn comes down to the simple question can we exclude some sort of threat by the deceased? That is the only question, at this stage, in my submiSSion. And the Crown would submit that, plainly, there is material before the jury which would entitle them to reach that conclusion. There are principal items of evidence which point directly, in my submission, to that conclusion. There is some other lesser matters that give them a bit of support but, in my submission, there are two matters that really conclude this issue, and they are the wound track and its position, and the accused's activities, as seen in the video and on the photos, right throughout the incident. Dealing with the first, I won't reiterate the evidence, Your Honour knows it well, but the fact is the man was shot in the back. We know the angle is 50 degrees backwards. It is more than 45 degrees, obviously. It is closer to a direct hit in the back than the other way. That, on its face is, in my submission, incompatible with a turning round to point the weapon at the accused. Of course, it could be done, it could be done, but it is a highly contortious act, remembering that the deceased's shoulder has to be raised, he is running, and he has to bring up his right hand to a point where he can show it to the accused and point it back in his direction. That is a highly unusual movement, in my submission. If he wants to use this replica at that point to threaten the accused, or indeed Mrs Rowe, then the obvious thing to do is to turn and face them and present the weapon to them. That is the first matter. The second matter involves looking at the accused's activities, as the events unfold. And I refer your Honour to the still photographs, Exhibit P12. I start at No.56. Of course, just backtracking a bit, the accused is sitting down. We can see his leg and his cup of coffee in the early photos. Then, at about 49 or 50, he starts to get up. In 54 he takes a step out into the console area and then, in 55, 56 and 57 they show the movement of the accused's right hand into. his..~ocket. And we know, we can accept that the Beretta pistol is indeed located in the pocket. And there is no disputing what he says to the police, that he put his hand in his pocket at an early stage, because that's where the pistol was. At that stage, of course, we can see the robber at the counter and indeed in No.55 I think we can see the white plastic bag there. HIS MONOUR: MS VANSTONE: You can see it in all three of those photos, I think. There is a sort of blob of white and we can see less of in 57 than we could in 55, which is compatible, I suggest, with Mrs Rowe holding it and preparing to put money into it. HIS HONOUR: couple of forward movements by the accused, apparently in photographs 57, 58 and then at 59 and 60. It would appear that the deceased is looking in his direction and that they are looking at each other, but whether they can see each other we don't know. MS VANSTONE: I think that nuts display had some glass in it or perspex, you can probably see a bit, but I was about to take your Honour to 65, where the deceased is clearly producing the knife to the accused. With the left hand. Yes, you can see the flash of knife HIS HONOUR: there and indeed that is visible on the video, probably more clearly. And they seem to engage each other for quite a few frames, which of course doesn't amount to much in time but that seems to be the case, that the deceased's attention was focused on the accused, presumably while Mrs Rowe is busy trying to get the money. HIS HONOUR: That does suggest they have seen each MS VANSTONE: Yes, no question of that. Of course the accused's hand seems to still be in his pocket at that stage but, obviously, while the attention of the robber is on him he's probably just going to stay put. If we move on to 77, 78, 79 and 80, they seem to show the accused turning away so as to present his right shoulder to the robber and the robber seems to have now turned back to Mrs Rowe and to be focusing on her. Then in 80 there is a white mark down near the position where one would expect the accused's right hand to be, which could well be the pistol being drawn out of the pocket. That is consistent with the following photographs, 81, 82, 83, 84, 85, 86, 87 and indeed 88, because clearly, through those frames the accused has got his back to the robber, he's got the pistol in his hands and he's obviously doing something with it and quite obviously he is cocking it. And indeed his stance in doing that is rather similar, I suggest, to the stance of Mr De Laine the other day when he cocked the weapon, put the magazine in and slid back the bolt. I think it is called a bolt. HIS HONOUR: It looks like as well by that stage, and through photographs 79 onwards, the accused has also moved back towards the southern end of the premises. He has gone out of the doorway. MS VANSTONE: Yes, he has moved back and he has put more of his back towards the robber. HIS HONOUR: So he would be less easy to see and presumably the robber would be almost impossible for him to see. MS VANSTONE: Yes. 85, turning back to the robber's movements, 85 shows him about to move away. 86 he is turning to his right, and then 87 he has turned just about fully around and obviously he has turned facing the window. He seems to have discounted any need to have another look at what the accused is up to at that stage. Then he begins to head out at this stage. Of course Mrs Rowe hasn't seen the weapon, she never sees it until the end, and the accused told the accused that he hadn't seen it. 88 shows the deceased slightly turning to his right and 89 he turns further to his right and he appears to be looking over to the accused in his direction. HIS HONOUR: When he turns to his right he dips and then raises his right shoulder. That is true. Then 90 he continues on. MS VANSTONE: 91 he has made a bit of ground. 91A is an extra frame, it is not in the same sequence of 3 per second. There is a close-up in 91B. Three per second, aren't they, the HIS HONOUR: Yes, what we get for these extra bits MS VANSTONE: being put in are 3 per second. 92 we see his right arm down. 92A is a close-up of that, and 93 he has gone. Then if we focus again on the accused, 91A shows him about to turn back to his right. 92 shows a continuation of that movement. 93 the gun is in his right hand, it is coming up. And 94 has him standing upright with the right arm extended and in all probability that's where the shot is fired or as near as we get to it. We know it is fired in that second and there are three frames in that second I think but clearly he has already fired it by the end of the seventh second of that minute. It is plain from all that that before there is any suggestion of this robber having a gun or a r~plica gun, he is loading his pistol. HIS MONOUR: Unless he saw it whilst he was standing there. MS VANSTONE: He said to the police he didn't. So he is loading it at a time when, as far as he knows, the only weapon is this knife, and at a time when Mrs Rowe has co-operated, the robber is calm and quiet, the robbery is in progress and nothing yet seems to be going wrong. So, by the time he turns round the robber is right back towards the door. He has already made all that ground. He turns around and the photos show, as indeed the video obviously does, he shoots straight away. He turns, aims and shoots. The jury are entitled to conclude from all that that this is one course of action that has been determined right at the time when he puts his hand in his pocket to get his pistol. If that's so, if he has made up his mind that he is going to shoot this man way back at the beginning, and if he only manages to do it just before the man leaves the door, then he's not shooting because of some sort of threat that's made at him, he's shooting because he wants to apprehend the armed robber. Your Monour doesn't have to find that beyond reasonable doubt, all your Honour has to findis that it is open to- the jury to conclude that's how it was. HIS HONOUR: Do you say it would be open to the jury to conclude that he wasn't acting in defence of himself but only acting under s.15.1A3 or whatever it is, to apprehend the robber? Yes, I guess that is the next step but MS VANSTONE: we don't need to worry about that at this stage, we are only concerned with whether we can disprove a genuine belief that this force was necessary and reasonable in defence of himself. That is the murder question. If we can't do that now, then the information goes out the window, that's the end of it. In his interview, the accused rather gives the impression that he got his gun cocked, turned around and he was watching the..~obber leave the premises. That is not how it was, the photos show that he has turned around and discharged the weapon. Now, it is convenient to deal with the photos and look at it in that way but of course the best picture is the one on the video and in my submission it is even clearer on the video that he turns around and bang. is such a continuous fluid action that the jury are entitled to say that that's what he was about when he turned his back to the robber and cocked his weapon, that was always what was going to happen. Of course they have got Dr James's evidence as well and all that does is strengthen that conclusion, depending on the way they look at it, but the fact is the man is shot in the back. It is not as if there is any suggestion in Dr James's evidence that he has turned around to point his weapon. Certainly Dr James says he could have been part way through a turn round but, at the end of the day, he has still got his back presented to the accused. They are the essential items of evidence. There are other subsidiary arguments I could put, like the stupidity of this robber presenting this replica pistol at the last minute when he's almost out the door, but in-- my submission they are relatively minor arguments and more contentious arguments in the context of this submission. There is one other aspect of the evidence which does probably help in this context and it is this. The accused claimed in his interview that when the robber threatened him with a firearm he accompanied that threat with words similar to 'Don't fuck with me.' Obviously the accused claims to have heard that. Obviously if it was said, it was said loud enough for Mrs Rowe. She of course says she can't remember it, she is not saying it wasn't said. Here she is in the photos. She may well have been going to the phone at some stage, but in many of those photos as the robber is making his w~y. out she is there standing straight up and apparently watching. HIS HONOI/R: But her state of mind wouldn't be such that she not remembering hearing something we could even infer from that it wasn't said. MS VANSTONE: I am not suggesting you can just look at that in isolation and again there are arguments both ways, but she has taken careful note of what is happening at that stage of the robbery. She is a person who is no more than 6 metres away, 7 metres away from the robber. It is said loud enough, the accused said, for him to hear it. HIS HONOUR: I don't think it is right to say she is taking careful note. the scream was hers. She heard a scream, didn't realise She is obviously shocked by the gun, there is no question. HIS HONOUR: Just shocked by the whole event. MS VANSTONE: She wasn't such a good witness as to hear what might have been said. MS VANSTONE: She has some presence of mind because she keeps back some of the money, rather foolishly perhaps, but that might have been indicative of her state of mind at the time. And she is mindful of what the man is wearing because she has given the police an identification. I agree, there are arguments both ways, but the accused said these words accompanied a threat. This is a person in a position to be able to hear them and she can't say that that was said. Add that to Dr James's evidence, the fact that he must have been in this odd position of pointing the weapon over his left shoulder or something, which is raised. You add that to the fact that the accused is preparing to fire way back at the beginning and there doesn't seem to be a moment's hesitation before he fires, turns around and fires. HIS HONOUR: If you take the photographs and then take Dr James's evidence, I suppose you say that.even if those words were said, they were said towards the door, MS VANSTONE: They couldn't have been said towards the accused. No. The whole thing is improbable. As your Honour says, where was his head going when he said the words, where was the gun pointing, and he is running all this time? HIS HONOUR: The accused says he is running. We can see submission. it on the video, so I guess that is ascertainable. MS VANSTONE: That shows you I haven't seen enough. don't know if he is running or walking. HIS HONOUR: Perhaps we will go to it in a moment. MS VANSTONE: But that's right, this whole thing is improbable, his position while he is calling out; why he would choose that moment to make a threat. But I haven't put the spotlight on those matters because I agree there are arguments both ways. But in pointing to Dr James's evidence and in pointing to what the accused was doing, it is pretty clear. If you take it at face value then it is pretty clear, in my submission, that there is material there which the jury could conclude he has made up his mind, there was no threat. Obviously they are two different matters. I suppose it is theoretically possible that the accused made up his mind to shoot him and then, when he turned around, at that very instant the robber produced this replica in a strange way. It is not impossible in a technical sense but the likelihood of that is something for the jury to consider and there is a question anyway if he made up his mind then, whether he is still shooting pursuant to his plan and not because of any threat by the robber. submission. That is the essence of it. If the Crown can't exclude a threat at this stage, then that is ~he end of it, there is no case to answer, that is the end of the trial. But in my submission, plainly there is material there. I wonder whether it would be convenient to - HIS HONOUR: That is clearly a jury question, in my I understand the submission you make, that if you can't exclude the threat, then that is the end of the trial, but can I come back to s.15(i)(b). Why doesn't that operate as being an alternative way the Crown can present its case? MS VANSTONE: It is, in the context of an information charging murder being before the jury. If your Honour rules no case to answer on that information, then that charge and all the alternatives which are incorporated into it, go with it. HIS HONOUR: I understand that, but why can't the murder be made out under 15(i)(b)? MS VANSTONE: The best argument and one that is presented by the defence in the accused's record of interview, is self defence. That is their highest ground. If they fail on that, then it seems to me that is the end of it. If we fail on that, that's the end of it. That is the sole question, in my submission. is the high point for the defence. CONTINUED Perhaps I could finish my submissions on the topic of I'm easy as to Prasad and we can go to the videos. which way we do it. HIS HONOUR: Whatever suits you. MS VANSTONE: Prasad advice or invitation, however one puts it. When the explanation of the right to acquit at this stage is given, inevitably that comes across to the jury as an invitation to acquit. That's the reason why the courts have been so reticent in approving the giving of that invitation. C-learly there are cases, there .are-cases where it's called for, but, in my submission, this is a far cry from them. This is a case, in my submission, where the jury need time with the exhibits, time with the videos, time to discuss the videos as a group freely, to see what inferences their various members are prepared to draw. And it's a case where the jury would be assisted by hearing argument from each side. It's not a case where the single issue is 'Can you believe this rape complainant? She's been utterly discredited. Are you of a mind where you would never rely on her evidence?' That's the sort of case where Prasad advices are sometimes given. Circumstantial cases are quite different, in my submission. Because, as I submitted yesterday, different people take very different views about items of circumstantial evidence. It's essential that this jury have the opportunity to fully share their views in the context of a complete look at all the video material and in the context of addresses and your Honour's summing up. If your Honour was to give the invitation now and they rejected it, Mr David might say 'That's open to them and there's no harm done' fact is there would be a residual impact, in my submission, they will go into the jury room for the last time knowing or believing that your Honour took a particular view of the case at this stage and that this unusual course was taken at this stage. In my submission, this is an extremely difficult case for the jury. They shouldn't rush into it with sort of partial directions, they shouldn't rush into it without a good length of time to consider the exhibits, they shouldn't rush into it without hearing all the arguments that can be presented on both sides and, of course, they just haven't heard any of that at this stage. So, in my submission, if there's a case to answer in the context of a case like this, it's just not appropriate for a Prasad direction. It would be asking them to consider the matter in a sort of a halfway house position, where they are just not seized of-i~ ..... sufficiently and, in my submission, that wouldn't be fair, particularly to the Crown. In relation to the videos, I'm not sure there's much point in seeing the original one because it's so quick but I'd ask if we could or if your Honour could see the three exhibits in real time, Pg, 10 and 11. HIS MONOUR: VIDEOS SHOWNTO COURT MS VANSTONE: I'm not sure whether that's sufficient for your Honour's purposes. HIS HONOUR: I'd like to see P9 again if I might. VIDEO SHOWN TO COURT MS VANSTONE: Just two points that I can make. In my submission, they clearly bear out my submission that the accused just turns around and fires. The second point is that your Honour has seen them and asked to see one of them a second time and, in my submission, that bears out my point that the jury will need time to watch them and to discuss them. If your Honour was to give them that time in the context of a Prasad invitation, then, of course, it's developing into a deliberation, which isn't what Prasad is all about. HIS HONOUR: Two matters. Whilst I was watching that I recognised that my question about s.15(1)(b) was inappropriate. You can put that out of your mind. The second is do you say the law is as stated by the Chief Justice in The Question of Law Reserved under 27 I don't need to go past that for the no case to answer submission. MS VANSTONE: Yes, I accept that, yes. But all I can do is stress to your Honour that the inference need not be a strong one, it might even be a weak one, but even if there's a weak inference there, that there was no threat, then that's enough. HIS HONOUR: The Chief Justice says: 'If there is direct evidence which is capable of proving the charge ... there is a case to answer.' MS VANSTONE: I accept that's the law and it.~e-not a very demanding test at this stage of the proceedings. MR DAVID: There's a couple of matters in reply. Firstly, your Honour is going to deliberate on this, I would ask you to read Dr James' evidence instead of that distorted version we got from my learned friend. He never talks about being shot in the back. Dr James says this - I read from p.201 - the question was this very clearly - having taken Dr James to the last still photograph whereby the deceased is seen and having obtained from Dr James' evidence that he could not have been in that position when the shot was fired, could not have been, so there had to be a manoeuvre after that position when the shot was fired and that all happened out of camera. That's uncontroverted evidence. Then this question is asked: 'Q So, medically speaking, it is consistent in front of him, is that so. A Yes. ' Then my learned friend, in re-examination, asked this: 'Q I'm not asking you to speculate on what he if he was involved in that manoeuvre.' That's obviously before he was hit: 'About halfway.' So when we are talking about Dr James' evidence, far being it from supporting an inference to support the Crown, in my submission, it totally corroborates and supports what the accused said to the police. That he was halfway through this swinging around manoeuvre with the gun out in front of him and that cannot be excluded. In my submission, where is the evidence to say that that manoeuvre was not made? Certainly doesn't come from Dr James or, I might paraphrase, where is the evidence that a reasonable juror could say, beyond reasonable doubt, that that manoeuvre was not made? That's not what the juror has to say at this stage though, is it? Well, applying the test. Just taking you up on that, it's not a question for me at this stage whether the case=~has been made out beyond reasonable doubt, it's a question as to whether the evidence is capable, the circumstantial evidence is capable of leading to a conviction. On the evidence before you on that topic, it's not even capable of that, of proof beyond reasonable doubt, it's not even capable, because there literally is no evidence. We have what the accused says to the police, we have what Dr James says is his medical opinion, which is consistent with what the accused said to the police, and no other. No evidence at all. This question of the fluidity of movement, of bringing the gun up, the unadulterated fact is that this shot was not fired until the deceased was out of range. Therefore it was not fired until the time that there had been a change in his movement. It was not fired until that manoeuvre had been made. That is fact. Because Dr James said the last time he saw him it could not have been then he was hit. Something else had to have happened. Which once again supports what the accused says and there is no evidence to the contrary. Thirdly, my learned friend's argument that because he was preparing that gun necessarily means that he was going to shoot that gun come what may is just not supported by anything. But preparation was at the time, as your Honour will see, when Mrs Rowe was being threatened by a weapon and a knife. HIS HONOUR: Preparation seems to take place after perhaps the accused was threatened with the weapon. MR DAVID: Yes, I think he puts his hand in his pocket before that and then the man comes over and threatens him with a weapon, if you start the preparation process, then he goes back to Mrs Rowe. HIS HONOUR: Putting his hand in his pocket wouldn't necessarily start the preparation process except to take hold of the gun I suppose. MR DAVID: Consciousness of the gun. But to say that that means come what may he was going to shoot him is a very long inference and a bow that no-ones-could draw. There's one other matter, as far as a Prasad direction is concerned, that's not my application of course. My application is basically the issue be withdrawn from the jury. As far as a Prasad direction is concerned, if one of the reasons for not giving it is your Honour's view is going to be carried through to the jury, we would not have a Prasad direction and they are given quite commonly in this court. The reason why a Prasad direction is appropriate is because this particular point is so succinct and any inference that could be drawn, in my submission, is a very, very weak one and the jury might well have a clear view about that now, they may not, but they might. So if your Honour is not with me as to the original test, it's my submission it's an appropriate case in which a Prasad direction should be given. HIS HONOUR: I'll read Dr James' evidence and I'll read Mr Brennan's evidence and I'll rule on your applications at 25 past 11. ADJOURNED 11.05 A.M. JURY NOT PRESENT HIS HONOUR: I have considered both applications made by Mr David; the first being that I should direct the jury that there is no case to answer and the second being that I should give the jury an invitation in the style of a Prasad invitation. It seems to me inappropriate to give reasons in relation to the result I have arrived at but, in the end, I have concluded that neither application ought to be granted and I dismiss both applications. I..~ .... Do you agree, Mr David, that I ought not give reasons? MR DAVID: the trial. HIS HONOUR: No, certainly not, not at this stage of Maybe later on. Yes, of course. Do you agree with that, Ms Vanstone? MS VANSTONE: I don't think there is a need for them ever. HIS HONOUR: David? MR DAVID: Do you want the jury brought in, Mr Yes. JURY ENTERS COURT 11.39 A.M. MR DAVID: The defence will not be adducing evidence. COUNSEL ADDRESS KC 3EE CROWN ADDRESS MS VANSTONE: Ladies and gentlemen of the jury, no-one can doubt the seriousness of the matter before you, nor its difficulty. On any view, a life has been spent. the one hand, it is argued that the death was a necessary consequence of the deceased's own action of pointing his replica weapon. On the other hand, it is contended by the Crown that what is really before you is nothing to do with self-defence, just the shooting in the back of a fleeing offender. Ladies and gentlemen, let me make perfectly plain the prosecution's position about this alleged.-.~hreat with this replica by Dallis Milsom. If - this is the Crown's position - if having listened to the evidence, having examined the videos, as you will get a chance to do, in due course, if having seen the scene of the shooting, as you have, having listened to all the argument, as you will, and to his Honour's summing up, if then you find you can't be satisfied that there was no threat by Milsom, then you must acquit. If you can't exclude a raising of the replica in the accused's direction, a threat with the replica, or the words 'Don't fuck with me', if you can't exclude that, then the Crown says, of course the accused must be acquitted altogether. I am not going to suggest to you, ladies and gentlemen, that in the face of the pointing of a very real looking object at him, that the accused should have ducked or weaved or tried to reason with Dallis Milsom. I am not going to suggest that for a minute. If he genuinely believed that Dallis Milsom was going to shoot him, if the Crown can't disprove that, then that is self-defence in action, that is the accused using a right which the law gives him and he must be acquitted altogether. But, ladies and gentlemen, before you reach that point, there is a lot of evidence that has to be discounted. And I will take you to it, shortly. It is evidence from which you can be satisfied, I suggest, :: KC 3EE 248 CROWN ADDRESS that the only turn the deceased made before he was shot was a turn to go out the door. piecemeal fashion, quaranteeing it, rather in a case like this you are entitled to and you must put all the evidence together and see if it enables you to reach a conclusion. Some of you will place more emphasis on one aspect of the evidence than others and that is human nature and there is nothing wrong with that, but it is the collective conclusion you reach that counts. Did the deceased point the replica pistol towards...~he accused in the final second, or was he simply going out the door with his money in the bag? Ladies and gentlemen, when you think about it, there is not a jot of evidence in this court to suggest that the robber did threaten anyone with a firearm. And let's look at it. We have got 34 seconds of time between the entrance by the robber into the service station and him being shot. 33 of those are on our video. In those 33 seconds, we can see there is not a hint of Milsom using that replica. 33 seconds out of 34. Now, maybe there is a half second each way, but that's just about it. He is not using it at the.counter when Mrs Rowe says he is quiet and calm. She doesn't even see it. He is not threatening anyone with it, as he turns to leave. He is not using it when he turns and looks back in the fifth second of the 13th minute and he is not using it as he disappears from view. Mr David might say you only need one second and this might have his last hoorah as he thought he was about to go through the door. It might be suggested that he saved the use of that replica up until the last second, because he feared if he presented it any sooner it might be spotted as being a fake. Ladies and gentlemen, if those suggestions are made, of course you will have to consider them, but you might think, if he is worried about the police being called, :: CROWN ADDRESS | if he is worried about being followed, then it is a strange time to point the replica weapon, because he is about to disappear into the night, he thinks. And, once he does that, there is nothing he can do to stop the police being called, to stop whatever services are called. Obviously the police are going to come. Anyone He would realise that. He has got what he came for. has got some money. Why hang around? Now, of course, on the other hand, you can't expect pure logic from a person who is committing an armed robbery. He is under stress, obviously, and he-is doing something which isn't in his daily routine, we assume. So, you can't expect him to behave just as the ordinary bloke would. But, ladies and gentlemen, when you think about it, he is within a second of moving out the door with the crime completed. Is this the time to pull up, turn around, say 'Don't fuck with me', holding in his hand a fake weapon? And, ladies and gentlemen, we know, of course, that Mrs Rowe doesn't claim to recall the words 'Don't fuck with me.' She doesn't claim to have seen any firearm, at any stage. She told you she was distracted by the making of this phone call to 11444. The one that didn't get through. And certainly she may well have been. But, ladies and gentlemen, you can see, from the photographs, that she is not distracted by the phone all the time. She is not looking to the left all through Milsom's departure, because in many of those photographs, as he proceeds towards the door, she is standing upright, facing north. And, ladies and gentlemen, further, wherever she is facing, there is nothing to stop her hearing the words 'Don't fuck with me', if they were said. If they were said loud enough for the accused to hear them, then you might have thought that she could have heard them too. So, her evidence, while it is not conclusive either way, her evidence doesn't point to any threat by the deceased. :: ~ · ! And then there is Dr James's evidence as to the site of the wounds and the angle of the wound track. Ladies and gentlemen, the fact of the matter is that Dallis Milsom was shot in the back. That is the fact of the matter. Dr James said it was on the back of the top of his left shoulder and you know exactly where it is, because you have got it in the photos. He was shot in the back. You can talk about swings and turns and veers and all those movements which, no doubt, Mr David will. And I shall too, as well. But nothing can change the fact that, whatever movement he was involved-i~.at the time he was shot, he was shot in the back. 50 degrees back from the shoulder to the shoulder line. So, more than halfway back to the straight up and down splitting the person line. His left shoulder, his upper bit and the gun is in his right hand. Ladies and gentlemen, say what you like about what he was going to do, whatever he was going to do, he hadn't got very far. We know he had to make a left turn to go round the display right next to the door. Now, of course, it is different in the photos here as compared with what it was the other day at the view, but there it is, it is a right angle. It is in the plan, it is on the photo. He was coming down there (INDICATES) and he has to turn left and the fact is he was shot in the back at about that angle (INDICATES). Ladies and gentlemen, is he supposed to have yelled out 'Don't fuck with me', over his left shoulder, on the run? Is that what he is supposed to have done? Is he supposed to have threatened the accused with some sort of trick shot over his left shoulder, as he turned, on the run? He might be turning left, he has to anyway, as we said, but he is still presenting the accused with more of his back than his side. And the defence can say what he likes about that, that is the angle of the wound"' 35 (INDICATES). Regardless of what he was doing, regardless of where his head was pointing or where his hand was, that's the angle of the wound (INDICATES). :: /-~, KC 3EE And to get him to yell out 'Don't fuck with me', or anything else and to point the weapon back at the accused, that's a very strange movement. And, ladies and gentlemen, unlike Dr James, you are not confined, in your evaluation of evidence, you are not confined to physical findings, like he is. You are entitled to apply what Dr James said to the whole of the evidence. You know that the deceased is very close to the door, as he goes off the screen. You have got the plan and so forth, you can work it all out. You know that he is travelling quickly, because you se~it on the video. You know that he has got his $150. These matters aren't relevant to Dr James, of course, he is just dealing with the body. You know there is a door there and that he is going to have to turn left, to go through it. I suggest to you, it is a matter for you, that to accommodate this defence theory, you have to make the deceased perform a totally unnatural manoeuvre in that last second, when he is off screen. You have to make him get himself into this bizzare position, so he can yell over his shoulder and somehow get the gun pointing back towards the accused. If he is going to issue a threat, at the last minute, why wouldn't he turn around, face the accused and present the gun to him straight on? Why would he just do this trick shot over the shoulder, or start to? So, ladies and gentlemen, first you have to have him in this totally unnatural position. Then, of course, the defence has him using that replica for the first time in this 34 second episode in the 34th second and they have him saying words that Mrs Rowe can't remember hearing. Plus, of course, this unnatural stance. So, none of that evidence gives the least support to a threat by the deceased. Ladies and gentlemen, let's look for a moment at the accused's activity through the robbery. Going to the photographs, the still photographs, :: KC 3EE Exhibit P12, and perhaps a convenient place to start is photo 49. 49 is a convenient spot, because we have got the accused sitting down in his chair, we have got Mrs Rowe possibly turning to the left. You might pick that better from the video, itself. And we have got the robber standing there at the counter. Over the next few frames, the accused gets up. And, flicking through to about 54, you can see that he makes a movement out towards the shop area. He has come out to see what is happening, by the look of it. Then 55, 56 and 57 show the accused's hand going into the right pocke~.-~ .And that is where we know the Beretta pistol was located. Flicking on a bit to about 62, you will see the robber look over towards the accused. I think you will find he has already seen him back earlier, but here he is focusing on him, as the accused has moved forward. And that is still happening in photos 63, 64 and 65. 65 shows the knife in the robber's left hand being pointed towards the accused. You will see the accused still seems to have his right hand in his pocket. Then there is a period when the accused and the deceased seem to have their eyes on each other and the accused just stands there. And that goes on for several seconds and you will see that, for the most part, there are three photos for each second and that seems to be the position, until about photo 78. In photo 78, it looks as if the accused is starting to move back to his left and the robber is starting to move back towards Mrs Rowe and to focus again on her. CONTINUED KC 3EE MS VANSTONE: Ladies and gentlemen of the jury, no-one can doubt the seriousness of the matter before you, nor its difficulty. On any view, a life has been spent. the one hand, it is argued that the death was a necessary consequence of the deceased's own action of pointing his replica weapon. On the other hand, it is contended by the Crown that what is really before you is nothing to do with self-defence, just the shooting in the back of a fleeing offender. Ladies and gentlemen, let me make perfectly plain the prosecution's position about this alleged.-.~hreat with this replica by Dallis Milsom. If - this is the Crown's position - if having listened to the evidence, having examined the videos, as you will get a chance to do, in due course, if having seen the scene of the shooting, as you have, having listened to all the argument, as you will, and to his Honour's summing up, if then you find you can't be satisfied that there was no threat by Milsom, then you must acquit. If you can't exclude a raising of the replica in the accused's direction, a threat with the replica, or the words 'Don't fuck with me', if you can't exclude that, then the Crown says, of course the accused must be acquitted altogether. I am not going to suggest to you, ladies and gentlemen, that in the face of the pointing of a very real looking object at him, that the accused should have ducked or weaved or tried to reason with Dallis Milsom. I am not going to suggest that for a minute. If he genuinely believed that Dallis Milsom was going to shoot him, if the Crown can't disprove that, then that is self-defence in action, that is the accused using a right which the law gives him and he must be acquitted altogether. But, ladies and gentlemen, before you reach that point, there is a lot of evidence that has to be discounted. And I will take you to it, shortly. It is evidence from which you can be satisfied, I suggest, :: KC 3EE 248 CROWN ADDRESS that the only turn the deceased made before he was shot was a turn to go out the door. piecemeal fashion, quaranteeing it, rather in a case like this you are entitled to and you must put all the evidence together and see if it enables you to reach a conclusion. Some of you will place more emphasis on one aspect of the evidence than others and that is human nature and there is nothing wrong with that, but it is the collective conclusion you reach that counts. Did the deceased point the replica pistol towards...~he accused in the final second, or was he simply going out the door with his money in the bag? Ladies and gentlemen, when you think about it, there is not a jot of evidence in this court to suggest that the robber did threaten anyone with a firearm. And let's look at it. We have got 34 seconds of time between the entrance by the robber into the service station and him being shot. 33 of those are on our video. In those 33 seconds, we can see there is not a hint of Milsom using that replica. 33 seconds out of 34. Now, maybe there is a half second each way, but that's just about it. He is not using it at the.counter when Mrs Rowe says he is quiet and calm. She doesn't even see it. He is not threatening anyone with it, as he turns to leave. He is not using it when he turns and looks back in the fifth second of the 13th minute and he is not using it as he disappears from view. Mr David might say you only need one second and this might have his last hoorah as he thought he was about to go through the door. It might be suggested that he saved the use of that replica up until the last second, because he feared if he presented it any sooner it might be spotted as being a fake. Ladies and gentlemen, if those suggestions are made, of course you will have to consider them, but you might think, if he is worried about the police being called, :: KC 3EE | if he is worried about being followed, then it is a strange time to point the replica weapon, because he is about to disappear into the night, he thinks. And, once he does that, there is nothing he can do to stop the police being called, to stop whatever services are called. Obviously the police are going to come. Anyone would realise that. He has got what he came for. has got some money. Why hang around? Now, of course, on the other hand, you can't expect pure logic from a person who is committing an armed robbery. He is under stress, obviously, and he-is doing something which isn't in his daily routine, we assume. So, you can't expect him to behave just as the ordinary bloke would. But, ladies and gentlemen, when you think about it, he is within a second of moving out the door with the crime completed. Is this the time to pull up, turn around, say 'Don't fuck with me', holding in his hand a fake weapon? And, ladies and gentlemen, we know, of course, that Mrs Rowe doesn't claim to recall the words 'Don't fuck with me.' She doesn't claim to have seen any firearm, at any stage. She told you she was distracted by the making of this phone call to 11444. The one that didn't get through. And certainly she may well have been. But, ladies and gentlemen, you can see, from the photographs, that she is not distracted by the phone all the time. She is not looking to the left all through Milsom's departure, because in many of those photographs, as he proceeds towards the door, she is standing upright, facing north. And, ladies and gentlemen, further, wherever she is facing, there is nothing to stop her hearing the words 'Don't fuck with me', if they were said. If they were said loud enough for the accused to hear them, then you might have thought that she could have heard them too. So, her evidence, while it is not conclusive either way, her evidence doesn't point to any threat by the deceased. :: ~ · ! of the wounds and the angle of the wound track. Ladies and gentlemen, the fact of the matter is that Dallis Milsom was shot in the back. That is the fact of the matter. Dr James said it was on the back of the top of his left shoulder and you know exactly where it is, because you have got it in the photos. He was shot in the back. You can talk about swings and turns and veers and all those movements which, no doubt, Mr David will. And I shall too, as well. But nothing can change the fact that, whatever movement he was involved-i~.at the time he was shot, he was shot in the back. 50 degrees back from the shoulder to the shoulder line. So, more than halfway back to the straight up and down splitting the person line. His left shoulder, his upper bit and the gun is in his right hand. Ladies and gentlemen, say what you like about what he was going to do, whatever he was going to do, he hadn't got very far. We know he had to make a left turn to go round the display right next to the door. Now, of course, it is different in the photos here as compared with what it was the other day at the view, but there it is, it is a right angle. It is in the plan, it is on the photo. He was coming down there (INDICATES) and he has to turn left and the fact is he was shot in the back at about that angle (INDICATES). Ladies and gentlemen, is he supposed to have yelled out 'Don't fuck with me', over his left shoulder, on the run? Is that what he is supposed to have done? Is he supposed to have threatened the accused with some sort of trick shot over his left shoulder, as he turned, on the run? He might be turning left, he has to anyway, as we said, but he is still presenting the accused with more of his back than his side. And the defence can say what he likes about that, that is the angle of the wound"' 35 (INDICATES). Regardless of what he was doing, regardless of where his head was pointing or where his hand was, that's the angle of the wound (INDICATES). :: /-~, KC 3EE And to get him to yell out 'Don't fuck with me', or anything else and to point the weapon back at the accused, that's a very strange movement. And, ladies and gentlemen, unlike Dr James, you are not confined, in your evaluation of evidence, you are not confined to physical findings, like he is. You are entitled to apply what Dr James said to the whole of the evidence. You know that the deceased is very close to the door, as he goes off the screen. You have got the plan and so forth, you can work it all out. You know that he is travelling quickly, because you se~it on the video. You know that he has got his $150. These matters aren't relevant to Dr James, of course, he is just dealing with the body. You know there is a door there and that he is going to have to turn left, to go through it. I suggest to you, it is a matter for you, that to accommodate this defence theory, you have to make the deceased perform a totally unnatural manoeuvre in that last second, when he is off screen. You have to make him get himself into this bizzare position, so he can yell over his shoulder and somehow get the gun pointing back towards the accused. If he is going to issue a threat, at the last minute, why wouldn't he turn around, face the accused and present the gun to him straight on? Why would he just do this trick shot over the shoulder, or start to? So, ladies and gentlemen, first you have to have him in this totally unnatural position. Then, of course, the defence has him using that replica for the first time in this 34 second episode in the 34th second and they have him saying words that Mrs Rowe can't remember hearing. Plus, of course, this unnatural stance. So, none of that evidence gives the least support to a threat by the deceased. Ladies and gentlemen, let's look for a moment at the accused's activity through the robbery. Going to the photographs, the still photographs, :: KC 3EE Exhibit P12, and perhaps a convenient place to start is photo 49. 49 is a convenient spot, because we have got the accused sitting down in his chair, we have got Mrs Rowe possibly turning to the left. You might pick that better from the video, itself. And we have got the robber standing there at the counter. Over the next few frames, the accused gets up. And, flicking through to about 54, you can see that he makes a movement out towards the shop area. He has come out to see what is happening, by the look of it. Then 55, 56 and 57 show the accused's hand going into the right pocke~.-~ .And that is where we know the Beretta pistol was located. Flicking on a bit to about 62, you will see the robber look over towards the accused. I think you will find he has already seen him back earlier, but here he is focusing on him, as the accused has moved forward. And that is still happening in photos 63, 64 and 65. 65 shows the knife in the robber's left hand being pointed towards the accused. You will see the accused still seems to have his right hand in his pocket. Then there is a period when the accused and the deceased seem to have their eyes on each other and the accused just stands there. And that goes on for several seconds and you will see that, for the most part, there are three photos for each second and that seems to be the position, until about photo 78. In photo 78, it looks as if the accused is starting to move back to his left and the robber is starting to move back towards Mrs Rowe and to focus again on her. CONTINUED Then over the next few frames the accused is turning round, so to give his right side, and ultimately more of his back, to the robber. Then photo 86 the robber starts to turn to leave. You can see he turns towards the window. He is not going to apparently turn left and have another look at the accused and what he's up to. The accused is there of course with his back still and his arms are in front of him (INDICATES). If we look at the next frame, 87, you will see the robber has now got his back to Mrs Rowe, and indeed to the accused, and he's started his movement towards the door. The accused is still there with his arms forward (INDICATES), obviously in the process of preparing his weapon. Photo 88 shows more of that. You can see that The accused has got that particular stance (INDICATES) with his hands in front of his body and his arms rather straight and you might think it is obvious that he is cocking the weapon, that he is sliding back that moving part on top, just like Mr De Laine did the other day when he demonstrated it. He has got it in front and he is trying to do that (INDICATES). Of course you will you have the opportunity of doing that with that particular weapon without any danger, and it is hard, it is hard to do. So you might think that it is obvious in those few photos, 86 through to 87, that is what he is doing, cocking the weapon. Then when you get to 88 and 89 you can see the robber start to look round. He's not looking back to Mrs Rowe, he's looking over to the accused. You will remember that when Mr De Laine cocked that pistol it made quite a pronounced noise and it is distinctive you might think. The robber's looking back at the accused. You might ask yourself did he hear that cocking noise. If he did, then you might think it was -- 35 rather a worrisome sound to hear and all the more reason to speed up and get out of there. And indeed, in the next few frames he is certainly moving fairly quickly. :: /-~ He seems to have put on a bit of speed. During this period when the robber is moving from the counter down that aisle, right through up to 91, the accused is still there with his back to the robber. He is not seeing any of that movement, but in the next second, and it is 21 13 06, as you can see, the accused starts to turn around. And there is more of that turning movement in 91A, still in that sixth second. 91B is just a close-up of the robber as he is seen in 91A. In 92, still in the sixth second, the accused is still turning, the robber's almost out of the picture, and the accused's arm-is just coming up. If we go straight to 93, the arm is is still going up. We are still in its sixth second. If we go to 94, and indeed to the first picture of the seventh second, that is 94, that is where I suggest you can conclude the shot was fired. We know because of the admission that it is fired in the seventh second. What I am suggesting to you is that you can conclude, by reason of the accused's stance, that it is in photo 94, or closest to that, where the shot occurred. That's where his arm is directly out in front of him. You can see that in 95 he has relaxed his arm a bit and in 96 it is all the way down. And all those three shots, photos, are in the seventh second. Ladies and gentlemen, it's plain, isn't it, that the accused shoots Milsom as soon as he can get that Beretta pistol ready to fire. Me turns around, the arm goes up and, bang. He's not there monitoring the situation to see what develops, he's not there watching to see what the robber's going to do. Me turns around, arm up, bang. That's not the picture that he painted for Detective Brennan in the interview. You heard the conversation read, I won't read it verbatim, but it is at p.157. I acknowledge that these -- aren't necessarily word for word but then the defence haven't challenged this, there has been no suggestion that this isn't what he told Brennan. Even though we :: ~ JMg 3F haven't got a recording of it, there is no challenge to it. He told Brennan: 'He threatened me with a knife, I backed away and reached for my pistol, I pushed the magazine into the butt, I cocked it.' He is asked what happened then. 'He grabbed the bag of money and started to run out. As he went to leave, he turned to his left, moved the pistol towards my direction.' et cetera. So from that you might glean that the accused is watching the robber as he proceeds out of the shop. He grabbed the bag of money. Now we know from the photos the accused's back is to all that. He doesn,~atch him go out the shop because he turns around and the robber is out of view. You see this interview paints the picture of the accused having the situation covered, just getting that pistol ready, just in case anything goes awry, watching the situation develop, being threatened. That is the picture he paints, watching it develop, then being threatened and then and only then discharging the weapon. The video says otherwise. We have got it all there, ladies and gentlemen, in front of you. You will last see the deceased in photo 92 when the accused is in that process of turning around. The next thing he's gone and the shot is fired. You might think, and it is for you to say, that the video shows a man who has made up his mind to shoot this armed robber. He is preparing his weapon before anyone even knows that the robber has got this imitation Smith and Wesson. He is preparing his weapon and the moment it's ready he fires it. What an amazing thing if this robber should choose to make his unlikely contortion just at the moment when the accused has prepared his weapon for fire, what an amazing thing. You may conclude, I suggest, that by the time the accused loaded his gun and turned back into the shop, he-- 35 had just one instant, just one chance to shoot his armed robber and he took it. In another moment Milsom might have disappeared forever. You might think it is nothing :: /'-~. to do with Milsom pointing his replica, nothing to do with 'He just turned slightly to his left, I thought he might turn and fire' as the accused told Brennan, nothing to do with that, ladies and gentlemen, everything to do with shooting a fleeing armed robber. We know from the video, and the set up of the shop, that the robber was shot when he was near the door. We don't know exactly where he was; he might have been either side of the doorframe, he might have been right in it. We know what line he must be in, we know what line his head is in, we know he is beyond the.view of the camera, but he is close to the doorway, using a bit of common sense. The accused knows that, the accused knows where the man was when he shot him. The accused wasn't to know though, one would think, whether that whole incident would be on video. We don't know whether that was on his mind or not when he spoke to Detective Brennan. We don't know whether the accused had in his mind that there was a video in the shop and that it might have been operating at that time. Mr David might say that the accused gave his version before seeing the video, and of course that's true, no question. Me might well have known by the time he spoke to Brennan that Mrs Rowe wasn't going to cast any light on what would happen in terms of this alleged threat. But if he thought about the video at all, he might have expected the incident to be on it. We don't know whether he knew that it was working or not working, whatever the position was. Mr David might say to you that if the accused chose to lie about this alleged threat, then he took a big chance, a big risk that he'd be contradicted by the video, and of course that's a question that you would want to consider. But when you do consider that question you might recall what we looked at earlier in "- terms of the interview, what I put to you before about the interview presenting a picture of the accused monitoring this robber's progress as he picked up this :: /-~ bag and moved towards the door, presents that picture of the accused having the robber under surveillance and only shooting when threatened, right at the end of that process. But we know from the video that t~at's not how it was. So all I suggest to you is bear in mind that when you listen to what Mr David says about the video. Mrs Rowe never saw this replica until after the shooting and that's plain. The accused had his back to the robber as the robber headed for the door, as we have seen. When he turned around to face into the shop he had shot the deceased. The question arises,.did. the accused ever see that replica before the shot was fired in that instant when he turned around to face the robber and fired, let alone whether there was a threat with the weapon or not, did the accused see it at all? There are the two possibilities, aren't there. He says, in his interview, yes, it was being pointed in my direction. There is a question, of course, whether he might have seen it but simply seen it in the robber's hand. It is possible, you might think, that he didn't see it at all, bearing in mind the instant he had to take in the scene and the fact that, on any account, the robber's got his back and left side presented to him. The gun's in the right hand. If it's not being threatened, not being pointed at him, then it's pretty unlikely he saw it at all, might think. I want to move on and raise another matter with you. Let's assume for the sake of my submissions that you exclude a threat by the robber, you find beyond reasonable doubt that there was no such threat. Before you convict of murder in that circumstance you would also have to look at the accused's intention when he fired because the Crown has to prove not only that the killing was unlawful, but that it was accompanied by a particular intention. You might remember that I mentioned I think in my opening that it is intention to kill, cause grievous bodily harm, really serious grievous bodily harm, or recklessness as to the causing of death or grievous bodily harm. So it is that question of intention in the alternative. You will remember that the accused told Brennan in his interview that he didn't have time to aim, and that's a question, did he have time to aim? If he did have time, did he aim? When you look at his posture, his stance, when he is holding the gun and bringing up his arm, you might think it is pretty much what you would expect from someone used to firing pistols. And when you look at where the bullet went you might think that he was not only aiming but aiming truly._.~hatever the deficiencies of this pistol, the fact is we are talking about a range of 6 to 7 metres. Those targets that Mr De Laine produced show that the weapon is accurate over 5 or 10 metres. Of course Mr De Laine is firing in ideal conditions, his purpose is to test the accuracy of the weapon. Me is assuming that his shot will be accurate but the weapon may not be. Mr Foreman's conditions, of course, are far from ideal, but in that context you might remember that Mr Foreman is no novice at using a pistol. He has obviously used all sorts of weapons over many years. He has artended pistol shoots at his club. Me has no doubt shot a host of other weapons. I'm not suggesting to you that if you own a weapon, or 20 weapons, then you are necessarily a good shot. It doesn't follow. It doesn't follow that because you have shot at a few targets you are instantly an excellent marksman. I am not suggesting that to you. But obviously a person interested in firearms, with a collection of firearms, who bothers to go to the Para Shooting Club and shoot some of his weapons, that person is likely to have improved his natural ability. Practice makes perfect. Now, I'm not suggesting he's perfect, but obviously he's better able than the average--- 35 person, who has no knowledge of firearms and no experience with them, he's better able to quickly arm his weapon, quickly take aim and fire and we are only :: ~ JMg 3F l! i I li talking 6 or 7 metres. The facts suggest that he aimed to hit and he hit. The best evidence of where a gun was pointing, of course, is where the bullet goes and it hit its mark. Just a lucky shot? Well, that's for you to say? If you exclude beyond reasonable doubt a threat by Milsom to the accused, the accused may yet have a defence to murder. It is not one that has been raised in his interview or anywhere else, but if you find he wasn't shooting in self defence, as the Crown submits you are entitled to find, then of course you will say well, why did he shoot the man, what was his purpose? And if you find that he may have been acting to effect an arrest, that's putting it in formal language but acting to stop an armed robber from fleeing, then the question will arise as to whether manslaughter comes into it. CONTINUED AT 3G Indeed, depending on his intention, it might yet be murder, but it takes in manslaughter as well. You'll be looking at the question of if that was his purpose, whether the force he used was wholly unreasonable. Ladies and gentlemen, is it reasonable to fire a gun at an armed robber, indeed, the upper body of an armed robber? In order to arrest him is it negligent to discharge a weapon at a man at such a close range? You might think - very much a matter for your consideration - you might think that, odious as armed robbers are, that we can't have the man in the street taking-up arms against robbers. We don't arm our bank tellers, we don't arm our console operators, we leave apprehension of offenders to the police. The disastrous results of using firearms against robbers are amply demonstrated by this case. Ladies and gentlemen, if Milsom really threatened the accused with the fake pistol, the accused really feared for his life, that's reasonably possible, then, of course, he must be acquitted. If notwithstanding that the robber was shot on the top of the shoulder, shot in the back of the shoulder, if notwithstanding that the accused was preparing to fire right from the beginning, turned and shot in one motion, as you might find it, notwithstanding that Mrs Rowe heard nothing of the words 'Don't fuck with me', if notwithstanding all those matters that I mentioned earlier, you accept as reasonably possible that Milsom did threaten the accused and the accused feared for his life, then you must acquit. But, ladies and gentlemen, short of that, there are difficult questions of judgment of community standards of what is reasonable and acceptable in circumstances such as these. Questions with which you will need to grapple. And, ladies and gentlemen, the 12 of you, with your experience of life, are, I suggest, amply qualified to do just that. But if the accused acted unlawfully and if the other elements of the murder charge, or, indeed, the lesser charge of AT 3G CROWN ADDRESS ACCUSED ADDRESS manslaughter, are proved, then your duty is plain. Thank you. MR DAVID: very short and in many ways a very unusual case. It's been a very short case because most of the evidence is agreed. It's not the type of case that you might have come across in the course of your duties as jurors whereby a witness might give some evidence and a witness might disagree with them and there's a fight about who is telling the truth or not. That's not this type of case. It's very unusual for that reason .also.~-Here we have the basic facts really set out before you and you have to judge whether, applying the law as his Honour will tell you about, my client is guilty of murder, of the most serious of criminal offences, for what took place on that evening in those few seconds in which he was confronted with this situation. This question comes down to this: Has it been proved beyond reasonable doubt that my client was not threatened in the way he's described when speaking to the police. And has it been proved beyond reasonable doubt that he, indeed, even genuinely didn't think he was threatened. You see, if he thought that what was happening was that this person was going to fire a shot, he is entitled, as far as the law is concerned, to defend both himself and Mrs Rowe. And for the law to say anything else would be utterly ridiculous. So, ladies and gentlemen, that is the test and that is the issue that you have to decide. And it will be the defence submission, at the end of the day, that not only should my client be acquitted of all charges that are before you in relation to this matter, murder, manslaughter or anything else, but for his actions on that night, in those circumstances, to find him guilty of a serious criminal offence would not only be a travesty of justice, it would turn our whole system of criminal justice on its head. Ladies and gentlemen, :: AT 3G that will be my submission at the end of the day. It will be my further submission that there is not one iota of real sensible evidence which suggests that this man was not threatened in the way he's described. Indeed, if you look carefully at the evidence, if you look carefully at Dr James' evidence in particular, and the whole of the circumstances of this case, of course that happened. And of course there was a manoeuvre at the end which easily could be interpreted as a man turning around to shoot him with a very lethal weapon. But, ladies and gentlemen, before I discuss that, let me just make a couple of preliminary matters. And they are preliminary matters by way of warning. Because it's important that you decide this case and these issues on the evidence that's before you and not be waylaid with side issues that really don't concern us in this case. The first of those side issues is this: This is not a trial about gun laws. We know of the recent tragic events, that the papers have been filled with debate, and quite proper debate, about gun laws, what should and what shouldn't be done. The question of gun licences, how they should be limited, all that sort of thing. Ladies and gentlemen, that has got nothing to do with this case and, with the greatest of fairness, my learned friend hasn't mentioned that in her address. But in case anyone is thinking about the matter, the fact that my client is a gun collector should not be held to his prejudice and it is obvious the reason why. You see, on that particular night, when he had that particular gun in his collection, there's no suggestion he was planning to use that. There's no suggestion that he had this gun for an illegal purpose. He didn't want to be interrupted by the robber, he was just going about his business with Mrs Rowe, chatting away, perfectly peaceably, there could be no suggestion that because he happens to be a gun collector - odd as that curiosity might be, and it's hard to imagine anyone wanting to be 263 ACCUSED ADDRESS a gun collector, but he's one, there are many of them in the community and he is a person who has abided by the law, who always has had licences, who has always done the right thing as far as gun collection is concerned. He's belonged to gun clubs and done everything proper and legal - the fact that he's in that category doesn't and can't in any way lead to any form of prejudice or proper probative evidence. In my submission, that is something that is just not relevant to this case and questions of the gun laws and the debate that's going on is not the issue here. This issue is concerning'the innocence or guilt of the most serious charge in the criminal calendar of my client and what he did on that night and an analysis of that evidence. The second preliminary matter that I wish to raise is it also matters not that this robber had a replica pistol. Mr Foreman wasn't to know that. And you heard the evidence of the Crown ballistics expert, Mr DeLaine, who said very clearly in his evidence that you couldn't tell that this was a replica as distinct from the real thing unless you actually handled it. Ladies and gentlemen, you certainly couldn't tell, according to his evidence, that it was not the real thing from something like five or six metres and the real thing is a very lethal weapon. It's a weapon that is used by the STAR Force, that was the evidence in this case, which can carry something like 16 to 17 shots that could be fired all at once. Ladies and gentlemen, that's what my client thought he was being confronted with on that evening. And it matters not whether, at the end of the day, we've found out by close analysis that it was, in fact, a replica. The third what I might call preliminary question which I really ask you to bear in mind is a most important one. A lot of this, in fact, all of this, except the vital seconds, is on video. A video can be very misleading in lots of ways. And it's for two reasons. Firstly, we are concerned not with what the :: AT 3G video camera saw, so much as what Mr Foreman saw. He is the person whose behaviour is being analysed as to what he did was reasonable. And secondly, the video doesn't really tell us the context of time, emotion and danger. Let me put this to you, ladies and gentlemen: This all happens in a matter of seconds. My learned friend keeps talking about 'Look, he couldn't have observed something, he's out of view. His hand came up quickly, went down slowly' or whatever. Put yourself in Mr Foreman's position. He didn't, on that night, have the comfort of slow motion replays or fast forwards-or fast backs, he happened to be sitting in a totally peaceable situation, not expecting anything to happen. All of a sudden he's catapulted, with Mrs Rowe, into a situation of terror. And that's what it is, ladies and gentlemen. If you're sitting down and you're chatting to someone, you don't expect someone to come in with a lethal looking knife and rob you. All of this took place in a matter of seconds. And all of this had to have taken place in an atmosphere of utter terror. You remember Mrs Rowe's evidence. She said 'Yes, he spoke calmly. Handed over. Threatened with the knife and said "I mean it" in a very quiet voice.' Neither Mrs Rowe or Mr Foreman know the character of this robber. They don't know what this robber is going to do. Mr Foreman doesn't know what this robber is going to do. It would be nice to think that he'd quietly take $150 and then leave the premises. But we know, ladies and gentlemen, robbers don't necessarily do that. Robbers stab, they shoot, they maim and the sad history, the sad recent history of Australia is that this happens all the time. And bear in mind something else, that may or may not have been in the mind of Mrs Rowe or Mr Foreman, it's this: This robber didn't have any form of disguise. There was no mask. Is it too far-fetched to suggest that Mrs Rowe and Mr Foreman might genuinely have thought that this robber, having robbed them, might have killed them? Or might have killed her? Is that such an absurd suggestion? So we are in a situation of utter terror by Mrs Rowe and a situation where Mr Foreman is catapulted into a situation which he just doesn't expect and which none of us, except the unlucky few, would have experienced. I say that, ladies and gentlemen, because when you are looking at his actions on that night, when you are analysing it, when you are fast forwarding and playing back, please take that into account. This isn't just a matter of sitting there nice and coldly in the comfort of a courtroom and saying 'Mr Foreman moved a bit early there. He shouldn't have done this.~--Me should have done that.' The position that Mr Foreman was in was a dreadful one. And, as I'll explain in a moment, he was damned if he did and he was damned if he didn't. What was he supposed to do on this night? Skulk back in the corner, let Mrs Rowe be threatened with a knife? Wait until something happened? Wait until she got stabbed before planning with his pistol? I'll develop that in a moment, ladies and gentlemen, but please try and understand the situation he must have been in when deciding whether he's guilty of murder or not. They are matters that I ask you just to bear in mind. They may have no moment with you, they may be helpful suggestions. But we must be realistic about this case. We must try and imagine the situation, especially when we are looking at it on television, which, of itself, is cold, is clinical, in fact, it almost looks like Charlie Chaplin, half the films that are shown, it's comical, that's not what it was like on that night. gentlemen, and it's my submission that there should be no question that my client is acquitted of this serious charge. I think a good starting point is to point out " 35 I now wish to turn to the evidence, ladies and the obvious facts of this case. Just the obvious ones, just a detailed summary of them. On the night in question, Mr Foreman and Mrs Rowe were chatting at the service station. There's no dispute about that. Mr Foreman had been there for about five minutes or so and it was his habit to go there and talk to people who happened to be there. The deceased robber came to the service station with a knife, a bag and a very realistic replica pistol. When he first came in, it's fairly clear that Mr Foreman was out of sight, you just happen to see his leg in the film, but, for all intents and purposes, out of sight. We know from evidence in this case it's undisputed that at the time the robber happened to be living in the area and you might think, ladies and gentlemen, he's obviously carefully picked his mark in performing this robbery. Here we have really, as far as people are concerned, a deserted service station on a Saturday night. There's no other shops, there's no other inhabitants, it's quiet. And, for all intents and purposes, Mrs Rowe is there alone. By herself. An unguarded woman. Going about her work. And you might think, living in the area, he's carefully picked that mark. But he doesn't know that Mr Foreman happens to be there. And you might think it might have been very lucky for Mrs Rowe that Mr Foreman was there. And you can see that when you look at the film and look at the photos, appearing - Mr Foreman - as if he's just realised someone is in the place. That might be a reason, we don't know, why he might have got out of there quicker than he might have. That there was another man there. That might have been the reason he's very conscious, he's looking back when he's leaving, of Mr Foreman's presence, why he might want to threaten Mr Foreman or Mrs Rowe when he's actually leaving. Ladies and gentlemen, he puts Mrs Rowe in fear in the way that she's described. He robs her. He says he means it. threatens her with the knife and you've heard her evidence about the terror that that struck in her, the thought of throwin9 that knife and going right through her. He then leaves and when he's out of sight of the camera, he is shot by Mr Foreman, there's no doubt about that, who was loading the gun at the time that he was at the counter. That's on the film also. Before the shot was fired and after he leaves, she attempts to use the phone and that attempt to use the phone is done while she's standing up and also makes a noise as she's described. While leaving, he looks in the direction of Mr Foreman and he appears to be concerned and conscious of Mr Foreman. According to Dr James, the bullet went through his neck via the left shoulder, consistent with a..~urn to the left, for whatever reason. I'm coming back to Dr James' evidence in a moment. Ladies and gentlemen, they are basically undisputed facts as to what happened on that night. In his explanation to the police as to his movements and what he did on that night, Mr Foreman gave a statement to Mr Brennan voluntarily on the night at the first opportunity and in that statement, they go to Mr Brennan's evidence, he said a number of things that are important. I won't read it all to you but just the salient factors because they are Mr Foreman's explanation as to why he, in fact, shot the robber, the reasons he did it and the situation he was faced with. I go first to p.156. Mr Brennan asked Mr Foreman: 'What happened then?' Mr Foreman said: 'I sat down and ... concerned, so I got up to see what was going on. I said ... ' That's the police officer: ' ... do you think the customer ... thought he might turn and fire, so I fired one shot.' Ladies and gentlemen, that is really the gist of what he is saying. If that is the truth, or it is reasonably possible that that is the truth, .the Crown have conceded that he might be acquitted of everything. And, of course, they have no option but to concede that, because it would be ridiculous if that were not the situation. Ladies and gentlemen, the first question you have to ask yourselves is was he just telling a pack of lies to the police officer? Was that just all made up? He didn't have to speak with the police officer, at all. He was warned that he didn't have any answer any questions. He didn't ask for any lawyers, or anything like that. He went along and voluntarily gave this statement. Ladies and gentlemen, it is a matter for you, but is that just a pack of lies? I raise these matters: he gave spontaneous answers to the police immediately. You will remember there was another police officer who saw him at the scene and he said to that police officer, straight away: 'Me threatened me with a gun.' This hasn't been thought up over the months, this explanation. It hasn't been discussed, worried about, talked about and come up with some fancy story to tell the jury. He gave this explanation on the night, without access to any professional help, or anything like that. Was he just making this up? If he was making it up, ladies and gentlemen, it is very interesting that it so happens to fit with so much of the evidence that we know is true. And let me point out a few matters: He said that the assailant, that the robber, moved slightly to the left in this manoeuvre, which he thought was a threat to him with the pistol. He didn't say: 'Look, he moved right round, directly opposite me, faced me and pointed the gun.' If he was telling lies, you might have thought he might have said something to really give it a bit of colour. He said he turned slightly to the left. That is exactly what Dr James says the appropriate,.manoeuvre was, that really is consistent with this passage of the bullet. If he had turned around and faced him front on with a pistol, ladies and gentlemen, Dr James would have said 'That's nonsense, that couldn't have happened.' But Dr James said yes, it is consistent with a turning motion. Mr Foreman didn't have a clue what sort of evidence Dr James was going to come up with. I mean, the deceased wasn't even dead, at this stage. No-one knew anything about paths of bullets, or anything like that. Is it just a fluke that the explanation he gave, on that particular night, happened to coincide with the forensic expert's evidence of what happened? If that was a fluke, ladies and gentlemen, it would be the greatest fluke in history. It is so, because Mr Foreman was telling the truth on that night. He also said that he was loading the pistol before he saw the robber's gun. He said that openly to the police. Much has been made of that by the prosecutor, saying that that, in fact, supports the Crown case. And I will come to that, in a moment, but that is, in fact, the truth. If he wanted to lie about this matter, he could have given some other explanation. 'I loaded it at a later stage', 'I saw the gun earlier', or whatever. He -- doesn't say that, at all. He in fact tells the truth. And, as I have said, as soon as he was spoken to by a Mr Roberrs, he told that story straight way. He said also, ladies and gentlemen, that he fired instinctively, not wishing to kill. That is something you will have to consider, but is that not the truth? All of this happened very, very quickly, in charged emotional circumstances. If he was trying to kill, why fire just one shot, when he thought he had missed? He had the wherewithal, even with this gun, to fire a number of shots off quickly. Secondly, is his demeanour and behaviour, after this man came back, consistent with a person who tried to kill him? That is something you can take into~account, ladies and gentlemen. What was his reaction? What was Mr Foreman's reaction? Mrs Rowe said he was screaming for an ambulance. He is saying he wished he hadn't hit him. And, when he came back - and this is a part of the film that is very interesting - when he came back, that is, when the robber came back, you see Mr Foreman actually pointing the gun at him, before he realises that he has been wounded. He didn't shoot him then, if he wanted to kill him. And what is more, that shows, you might think, that he was still very much threatened by him, as he was when he left the shop. So, ladies and gentlemen, it is a matter for you, but it just doesn't make sense that the suggestion that he intended to kill him was, in fact, what happened. Isn't what happened what he said? In these charged seconds, he fired instinctively and just did it to protect himself and Mrs Rowe? Ladies and gentlemen, the Crown says not so, we can prove that there was no threat, at all. Just no threat, at all. That the robber didn't turn round, as if to shoot the gun, or point the gun. It just didn't happen. The first point they make is why would the robber want to do that? Why would he, at this late stage, want to threaten with a bogus pistol? Ladies and gentlemen, there are a lot of obvious answers to that. This robber was, in fact surprised, you might think, by the appearance of Mr Foreman. You CROWN ADDRESS ACCUSED ADDRESS manslaughter, are proved, then your duty is plain. Thank you. MR DAVID: very short and in many ways a very unusual case. It's been a very short case because most of the evidence is agreed. It's not the type of case that you might have come across in the course of your duties as jurors whereby a witness might give some evidence and a witness might disagree with them and there's a fight about who is telling the truth or not. That's not this type of case. It's very unusual for that reason .also.~-Here we have the basic facts really set out before you and you have to judge whether, applying the law as his Honour will tell you about, my client is guilty of murder, of the most serious of criminal offences, for what took place on that evening in those few seconds in which he was confronted with this situation. This question comes down to this: Has it been proved beyond reasonable doubt that my client was not threatened in the way he's described when speaking to the police. And has it been proved beyond reasonable doubt that he, indeed, even genuinely didn't think he was threatened. You see, if he thought that what was happening was that this person was going to fire a shot, he is entitled, as far as the law is concerned, to defend both himself and Mrs Rowe. And for the law to say anything else would be utterly ridiculous. So, ladies and gentlemen, that is the test and that is the issue that you have to decide. And it will be the defence submission, at the end of the day, that not only should my client be acquitted of all charges that are before you in relation to this matter, murder, manslaughter or anything else, but for his actions on that night, in those circumstances, to find him guilty of a serious criminal offence would not only be a travesty of justice, it would turn our whole system of criminal justice on its head. Ladies and gentlemen, that will be my submission at the end of the day. It will be my further submission that there is not one iota of real sensible evidence which suggests that this man was not threatened in the way he's described. Indeed, if you look carefully at the evidence, if you look carefully at Dr James' evidence in particular, and the whole of the circumstances of this case, of course that happened. And of course there was a manoeuvre at the end which easily could be interpreted as a man turning around to shoot him with a very lethal weapon. But, ladies and gentlemen, before I discuss that, let me just make a couple of preliminary matters. And they are preliminary matters by way of warning. Because it's important that you decide this case and these issues on the evidence that's before you and not be waylaid with side issues that really don't concern us in this case. The first of those side issues is this: This is not a trial about gun laws. We know of the recent tragic events, that the papers have been filled with debate, and quite proper debate, about gun laws, what should and what shouldn't be done. The question of gun licences, how they should be limited, all that sort of thing. Ladies and gentlemen, that has got nothing to do with this case and, with the greatest of fairness, my learned friend hasn't mentioned that in her address. But in case anyone is thinking about the matter, the fact that my client is a gun collector should not be held to his prejudice and it is obvious the reason why. You see, on that particular night, when he had that particular gun in his collection, there's no suggestion he was planning to use that. There's no suggestion that he had this gun for an illegal purpose. He didn't want to be interrupted by the robber, he was just going about his business with Mrs Rowe, chatting away, perfectly peaceably, there could be no suggestion that because he happens to be a gun collector - odd as that curiosity might be, and it's hard to imagine anyone wanting to be ACCUSED ADDRESS a gun collector, but he's one, there are many of them in the community and he is a person who has abided by the law, who always has had licences, who has always done the right thing as far as gun collection is concerned. He's belonged to gun clubs and done everything proper and legal - the fact that he's in that category doesn't and can't in any way lead to any form of prejudice or proper probative evidence. In my submission, that is something that is just not relevant to this case and questions of the gun laws and the debate that's going on is not the issue here. This issue is concerning'the innocence or guilt of the most serious charge in the criminal calendar of my client and what he did on that night and an analysis of that evidence. The second preliminary matter that I wish to raise is it also matters not that this robber had a replica pistol. Mr Foreman wasn't to know that. And you heard the evidence of the Crown ballistics expert, Mr DeLaine, who said very clearly in his evidence that you couldn't tell that this was a replica as distinct from the real thing unless you actually handled it. Ladies and gentlemen, you certainly couldn't tell, according to his evidence, that it was not the real thing from something like five or six metres and the real thing is a very lethal weapon. It's a weapon that is used by the STAR Force, that was the evidence in this case, which can carry something like 16 to 17 shots that could be fired all at once. Ladies and gentlemen, that's what my client thought he was being confronted with on that evening. And it matters not whether, at the end of the day, we've found out by close analysis that it was, in fact, a replica. The third what I might call preliminary question which I really ask you to bear in mind is a most important one. A lot of this, in fact, all of this, except the vital seconds, is on video. A video can be very misleading in lots of ways. And it's for two reasons. Firstly, we are concerned not with what the video camera saw, so much as what Mr Foreman saw. He is the person whose behaviour is being analysed as to what he did was reasonable. And secondly, the video doesn't really tell us the context of time, emotion and danger. Let me put this to you, ladies and gentlemen: This all happens in a matter of seconds. My learned friend keeps talking about 'Look, he couldn't have observed something, he's out of view. His hand came up quickly, went down slowly' or whatever. Put yourself in Mr Foreman's position. He didn't, on that night, have the comfort of slow motion replays or fast forwards-or fast backs, he happened to be sitting in a totally peaceable situation, not expecting anything to happen. All of a sudden he's catapulted, with Mrs Rowe, into a situation of terror. And that's what it is, ladies and gentlemen. If you're sitting down and you're chatting to someone, you don't expect someone to come in with a lethal looking knife and rob you. All of this took place in a matter of seconds. And all of this had to have taken place in an atmosphere of utter terror. You remember Mrs Rowe's evidence. She said 'Yes, he spoke calmly. Handed over. Threatened with the knife and said "I mean it" in a very quiet voice.' Neither Mrs Rowe or Mr Foreman know the character of this robber. They don't know what this robber is going to do. Mr Foreman doesn't know what this robber is going to do. It would be nice to think that he'd quietly take $150 and then leave the premises. But we know, ladies and gentlemen, robbers don't necessarily do that. Robbers stab, they shoot, they maim and the sad history, the sad recent history of Australia is that this happens all the time. And bear in mind something else, that may or may not have been in the mind of Mrs Rowe or Mr Foreman, it's this: This robber didn't have any form of disguise. There was no mask. Is it too far-fetched to suggest that Mrs Rowe and Mr Foreman might genuinely have thought that this robber, having robbed them, might have killed them? Or might have killed her? Is that such an absurd suggestion? So we are in a situation of utter terror by Mrs Rowe and a situation where Mr Foreman is catapulted into a situation which he just doesn't expect and which none of us, except the unlucky few, would have experienced. I say that, ladies and gentlemen, because when you are looking at his actions on that night, when you are analysing it, when you are fast forwarding and playing back, please take that into account. This isn't just a matter of sitting there nice and coldly in the comfort of a courtroom and saying 'Mr Foreman moved a bit early there. He shouldn't have done this.~--Me should have done that.' The position that Mr Foreman was in was a dreadful one. And, as I'll explain in a moment, he was damned if he did and he was damned if he didn't. What was he supposed to do on this night? Skulk back in the corner, let Mrs Rowe be threatened with a knife? Wait until something happened? Wait until she got stabbed before planning with his pistol? I'll develop that in a moment, ladies and gentlemen, but please try and understand the situation he must have been in when deciding whether he's guilty of murder or not. They are matters that I ask you just to bear in mind. They may have no moment with you, they may be helpful suggestions. But we must be realistic about this case. We must try and imagine the situation, especially when we are looking at it on television, which, of itself, is cold, is clinical, in fact, it almost looks like Charlie Chaplin, half the films that are shown, it's comical, that's not what it was like on that night. I now wish to turn to the evidence, ladies and gentlemen, and it's my submission that there should be no question that my client is acquitted of this serious charge. I think a good starting point is to point out " 35 the obvious facts of this case. Just the obvious ones, just a detailed summary of them. On the night in question, Mr Foreman and Mrs Rowe were chatting at the service station. There's no dispute about that. Mr Foreman had been there for about five minutes or so and it was his habit to go there and talk to people who happened to be there. The deceased robber came to the service station with a knife, a bag and a very realistic replica pistol. When he first came in, it's fairly clear that Mr Foreman was out of sight, you just happen to see his leg in the film, but, for all intents and purposes, out of sight. We know from evidence in this case it's undisputed that at the time the robber happened to be living in the area and you might think, ladies and gentlemen, he's obviously carefully picked his mark in performing this robbery. Here we have really, as far as people are concerned, a deserted service station on a Saturday night. There's no other shops, there's no other inhabitants, it's quiet. And, for all intents and purposes, Mrs Rowe is there alone. By herself. An unguarded woman. Going about her work. And you might think, living in the area, he's carefully picked that mark. But he doesn't know that Mr Foreman happens to be there. And you might think it might have been very lucky for Mrs Rowe that Mr Foreman was there. And you can see that when you look at the film and look at the photos, appearing - Mr Foreman - as if he's just realised someone is in the place. That might be a reason, we don't know, why he might have got out of there quicker than he might have. That there was another man there. That might have been the reason he's very conscious, he's looking back when he's leaving, of Mr Foreman's presence, why he might want to threaten Mr Foreman or Mrs Rowe when he's actually leaving. Ladies and gentlemen, he puts Mrs Rowe in fear in the way that she's described. He robs her. He says he means it. threatens her with the knife and you've heard her evidence about the terror that that struck in her, the thought of throwin9 that knife and going right through her. He then leaves and when he's out of sight of the camera, he is shot by Mr Foreman, there's no doubt about that, who was loading the gun at the time that he was at the counter. That's on the film also. Before the shot was fired and after he leaves, she attempts to use the phone and that attempt to use the phone is done while she's standing up and also makes a noise as she's described. While leaving, he looks in the direction of Mr Foreman and he appears to be concerned and conscious of Mr Foreman. According to Dr James, the bullet went through his neck via the left shoulder, consistent with a..~urn to the left, for whatever reason. I'm coming back to Dr James' evidence in a moment. Ladies and gentlemen, they are basically undisputed facts as to what happened on that night. In his explanation to the police as to his movements and what he did on that night, Mr Foreman gave a statement to Mr Brennan voluntarily on the night at the first opportunity and in that statement, they go to Mr Brennan's evidence, he said a number of things that are important. I won't read it all to you but just the salient factors because they are Mr Foreman's explanation as to why he, in fact, shot the robber, the reasons he did it and the situation he was faced with. I go first to p.156. Mr Brennan asked Mr Foreman: 'What happened then?' Mr Foreman said: 'I sat down and ... concerned, so I got up to see what was going on. I said ... ' That's the police officer: ' ... do you think the customer ... thought he might turn and fire, so I fired one shot.' Ladies and gentlemen, that is really the gist of what he is saying. If that is the truth, or it is reasonably possible that that is the truth, .the Crown have conceded that he might be acquitted of everything. And, of course, they have no option but to concede that, because it would be ridiculous if that were not the situation. Ladies and gentlemen, the first question you have to ask yourselves is was he just telling a pack of lies to the police officer? Was that just all made up? He didn't have to speak with the police officer, at all. He was warned that he didn't have any answer any questions. He didn't ask for any lawyers, or anything like that. He went along and voluntarily gave this statement. Ladies and gentlemen, it is a matter for you, but is that just a pack of lies? I raise these matters: he gave spontaneous answers to the police immediately. You will remember there was another police officer who saw him at the scene and he said to that police officer, straight away: 'Me threatened me with a gun.' This hasn't been thought up over the months, this explanation. It hasn't been discussed, worried about, talked about and come up with some fancy story to tell the jury. He gave this explanation on the night, without access to any professional help, or anything like that. Was he just making this up? If he was making it up, ladies and gentlemen, it is very interesting that it so happens to fit with so much of And let me point out the evidence that we know is true. a few matters: He said that the assailant, that the robber, moved slightly to the left in this manoeuvre, which he thought was a threat to him with the pistol. He didn't say: 'Look, he moved right round, directly opposite me, faced me and pointed the gun.' If he was telling lies, you might have thought he might have said something to really give it a bit of colour. He said he turned slightly to the left. That is exactly what Dr James says the appropriate,.manoeuvre was, that really is consistent with this passage of the bullet. If he had turned around and faced him front on with a pistol, ladies and gentlemen, Dr James would have said 'That's nonsense, that couldn't have happened.' But Dr James said yes, it is consistent with a turning motion. Mr Foreman didn't have a clue what sort of evidence Dr James was going to come up with. I mean, the deceased wasn't even dead, at this stage. No-one knew anything about paths of bullets, or anything like that. Is it just a fluke that the explanation he gave, on that particular night, happened to coincide with the forensic expert's evidence of what happened? If that was a fluke, ladies and gentlemen, it would be the greatest fluke in history. It is so, because Mr Foreman was telling the truth on that night. He also said that he was loading the pistol before he saw the robber's gun. He said that openly to the police. Much has been made of that by the prosecutor, saying that that, in fact, supports the Crown case. And I will come to that, in a moment, but that is, in fact, the truth. If he wanted to lie about this matter, he could have given some other explanation. 'I loaded it at a later stage', 'I saw the gun earlier', or whatever. He -- doesn't say that, at all. He in fact tells the truth. And, as I have said, as soon as he was spoken to by a Mr Roberrs, he told that story straight way. He said also, ladies and gentlemen, that he fired instinctively, not wishing to kill. That is something you will have to consider, but is that not the truth? All of this happened very, very quickly, in charged emotional circumstances. If he was trying to kill, why fire just one shot, when he thought he had missed? He had the wherewithal, even with this gun, to fire a number of shots off quickly. Secondly, is his demeanour and behaviour, after this man came back, consistent with a person who tried to kill him? That is something you can take into~account, ladies and gentlemen. What was his reaction? What was Mr Foreman's reaction? Mrs Rowe said he was screaming for an ambulance. He is saying he wished he hadn't hit him. And, when he came back - and this is a part of the film that is very interesting - when he came back, that is, when the robber came back, you see Mr Foreman actually pointing the gun at him, before he realises that he has been wounded. He didn't shoot him then, if he wanted to kill him. And what is more, that shows, you might think, that he was still very much threatened by him, as he was when he left the shop. So, ladies and gentlemen, it is a matter for you, but it just doesn't make sense that the suggestion that he intended to kill him was, in fact, what happened. Isn't what happened what he said? In these charged seconds, he fired instinctively and just did it to protect himself and Mrs Rowe? Ladies and gentlemen, the Crown says not so, we can prove that there was no threat, at all. Just no threat, at all. That the robber didn't turn round, as if to shoot the gun, or point the gun. It just didn't happen. The first point they make is why would the robber want to do that? Why would he, at this late stage, want to threaten with a bogus pistol? Ladies and gentlemen, there are a lot of obvious answers to that. This robber was, in fact surprised, you might think, by the appearance of Mr Foreman. You might think he was expecting to see a woman alone. And Mr Foreman was in the doorway. He is conscious of Mr Foreman. Look at him looking back there all the time. Mr Foreman stands up, as if he was going to do something. Moves out. The situation has changed, as far as this robber is concerned. There is not just this woman, there is this woman and Mr Foreman, who are likely to do something. This robber is on foot. If some action takes place straight away to get aid, or if Mrs Rowe successfully phones someone, this robber is caught. It is interesting that the threat, as~alleged by Mr Foreman, takes place after the attempted phone call, which makes a noise. You will remember she is standing up, she presses some buttons that makes a noise, at the same time as Mr Foreman is coming out. That, you might think, is when the robber turns around to threaten them, stops, so he can get way. Ladies and gentlemen, isn't that what happened on this particular night? It is as clear as clear can be. He was totally surprised by Mr Foreman's presence and he had to do something so he could flee without being stopped. And he would have been stopped, if a quick phone call had been made for aid and Mr Foreman had got into his car and drove off and got somebody. The other comment that the prosecution makes is this - and it is an incredible submission - it is look, Mr Foreman has, in fact, loaded that gun, his gun, before he saw the pistol. Doesn't that show that he intended to use that gun, come what may? Ladies and gentlemen, it is my submission that that is an absurd proposition~ Put, if you can, yourself in Mr Foreman's position. He is sitting close to Mrs Rowe, when this man comes and threatens her with a knife. He doesn't know this robber. This man could do anything. It is unexpected. What consequences are going to flow, you wouldn't have a clue. We all might read the papers and see all the horrific things that happen in this world. He had a gun in his pocket. What is he supposed ACCUSED ADDRESS to do, skulk back in the corner and not do anything? Sit there and wait until Mrs Rowe has a knife in her ribs and then decide to do something to stop mayhem? has done what any responsible person would do. He has seen a robber, armed with a knife and eventually armed with a gun, but armed with a knife to start off with, a lethal weapon at close proximity to Mrs Rowe. The defence is who he was robbing. The accused is standing back and he has 9or a gun. What is he going to do? It doesn't mean he is 9oin9 to shoot him, come what may, but 9oodness me, ladies and gentlemen, isn't~-t-he~ responsible thing a person in his position had to do was to get ready, in case he did something? In case he caused some mayhem? In case he did some harm to Mrs Rowe? And, as I said in the opening of my address, he was damned if he did and he was damned if he didn't. What on earth was he supposed to do? Sit back? 'I can't touch my gun. My licence doesn't allow it. The law says I have got to wait until something happens a bit further down the track.' It all took place in seconds. Ladies and gentlemen, that is a totally unrealistic proposition, to say that he was getting his gun ready, Therefore at that stage, therefore he intended to kill. he intended to shoot, come what may. Ladies and gentlemen, he has done the only responsible thing a person could do, in those circumstances. The time between turning around and lifting his arm looks very quick. The whole thing is very quick. It must be seen in proportion. But, if you look at those photos, and the still photos are the best, when his arm is starting to come up, there is still a lapse of time in which this man could make that manoeuvre. His assessment of the situation doesn't take place over half an hour. These things don't take half an hour. When he is talking about his assessment of the situation, he is talking about a matter of seconds. That's all he had, ladies and gentlemen. Because, if he hadn't performed the manoeuvre in that way, of getting ready in case this man did something, just assume this man did have a real pistol and just assume this man was going to fire, which was a reasonably held belief, by Mr Foreman; if he had delayed any further, he could have blown Mrs Rowe's head off, or Mr Foreman's head off. had to get ready, as quickly as he did, in case something happened. And it is clear that that shot is fired, after that man is out of view. And now we come to the question that my learned friend mentioned, namely, the question of the_manoeuvres o~11 and that is vital to this case, because it is my submission that the evidence of Dr James and the evidence of the film, itself, and the positions and the door clearly shows that this manoeuvre did take place, as has been described by my client in his statement to the police. Namely, he was in the process of moving to his left, as if to swing around and point the gun at him. Ladies and gentlemen, Dr James says that is totally consistent with the medical evidence. No ifs or buts; it is totally consistent with the medical evidence. And let me go to Dr James's evidence, at p.197. I will have to read this, because it is so important that it doesn't bear paraphrasing. Ms Vanstone asked these questions: 'Q. Are you able to say anything ... is that your left arm?' And then we go to that photo and you have seen that. Ladies and gentlemen, in my cross-examination, I took doctor to Exhibit P12, that is the still photos, photo A92. And I took him to that: 'Q. Do you say that ... there, that could not accommodate this wound.' So that, ladies and gentlemen, is the last time the-- camera catches him. And doctor's evidence goes on: 'No, if that were the ... win turning to the left would it be correct to say that the wound ... deceased being hit whilst swinging around to the left with the gun in front of him, is that so. A. Yes.' What could be clearer than that? From this position he is swinging round to the left with the gun in front of him, so that his left shoulder, not the one we see in the photo, has to be presented. There is an acute turn to the left and part way through that turn, that's when he's hit by the bullet. Isn't that absolutely consistent with what the accused told the poliee? And then Ms Vanstone in re-examination asked this, having asked a previous question about a matter that doesn't concern us: ~I am not asking you to speculate on what he was doing but you agree he could have been in the process of swinging round to do a turn, in other words to swing round but back towards the way he had come from. All I am asking you to say is how far did he get if he was involved in that manoeuvre? A. About halfway.' So, on Dr James's evidence, on his evidence, the medical evidence is consistent with this man turning halfway through a manoeuvre as if to face back the other way when he is hit. That is exactly what the accused told the police and how on earth did the accused know that Dr James was going to give this evidence. The medical evidence totally supports what he says, but it goes even further, and this is not so much medical evidence, it is very much a matter for you and you might find my submissions on the matter attractive or not, and it is a matter for you because you have seen the scene, it is a matter for you. The Crown are trying to say look, yes, he said he turned around to the left as if to shoot. We say he turned around to the left to go out the door. Whether in that charged situation Mr Foreman could appreciate the difference is another matter. I mean really, in those seconds or miliseconds, especially when we look at, say, photo B91, look that gun is up almost in a shoulder position, clear, and then it seems to drop down, if we go to A92, in a motion as if to swing around. Whether he is swinging around to go out the door or whether he is swinging around to shoot really doesn't matter because you might think that Mr Foreman's appreciation of the situation might have found it pretty difficult to make that fine distinction. But there is another factor. If you remember during the view I tried to place myself in a position where the deceased was in the photo A92, using that minties bar as a guide, and when you get to that position I ask you to line that up with the opening that would have been there that night. I don't know if you observed the situation there. It might be that you observed that to go out the door from that position you could just go out in a straight line, in the way he is walking, you didn't have to turn round to the left. If you turned round to the left from that position to present your left shoulder, it is my submission, it is a matter for you, this is very much your view of the matter, you'd have walked straight into that pile of bottles that were there on that particular night. You would have walked straight into the left-hand-side of the door which wasn't working on that night. You might think you could walk straight out virtually in the direction that he is walking now, the point being that if he swung to the left it wasn't to go out the door. Swinging to the left in the way that has been described wouldn't get him out the door. Me swung to the left to threaten in the way that Mr Foreman has described. And it is my submission that if that is just a reasonable possibility, that the Crown have conceded my client must be acquitted of everything. Ladies and gentlemen, that is further supported by the fact that when he does get out the door, and I know this might be a slightly unrealistic position but I put it because we don't know how we might behave if we were shot, that trail of blood goes off to the right as if ACCUSED ADDRESS i this man was intending to go off to the right, not to do a hard turn and turn left. I realise that might be a fairly unrealistic submission because that having happened, he might have done all sorts of things, but if you look at that photo and the position as you saw the door on Tuesday morning, it is my submission it is not accommodated by a hard turn to the left to get out of the place. Indeed, the salient point of that photo is this, right at the end, before he gets out of view, he has to have changed position between that photo and. Where he was shot,· he has to have done that. That's just fact and that position had to be a change of a manoeuvre to the left. Is it not reasonable to think, having seen that gun, having seen that manoeuvre, my client in that charged situation quite reasonably thought that this man was going to turn round and fire. Why not, ladies and gentlemen? If he slightly misjudged the situation in that situation he was in, are we going to have a conviction for murder because of that? I mean has the Integrity of our criminal justice system gone absolutely haywire? Ladies and gentlemen, my client didn't want to be placed in the situation he was in that night. Me didn't want to be confronted by a robber. Mrs Rowe didn't want to be confronted by a robber. They were placed in a ghastly situation that any one of us one day might be placed in. How we react and what we do are matters of conjecture. All of us, you might think, choke by apprehension and fear. Because of what Mr Foreman has done we are now analysing, frame by frame, second by second, part second by part second, the situation he was in on that dreadful night. It is my submission to find him guilty of murder, or any other criminal offence, would be a very -- savage miscarriage of justice, and I add this one thing, if he wasn't under threat, as the prosecutor says has been proved beyond reasonable doubt, not threatened at all, saw the gun, not a problem, this man's going, why did he shoot him? What's the point? All his behaviour after this event which took place shows that he didn't get any pleasure out of shooting this man, he didn't want to kill him. Why did he want to shoot him? For a bit of fun, just because he liked guns? Ladies and gentlemen, the suggestion is preposterous and indeed hasn't been made. This man was faced with a situation that, God willing, none of us will have to be faced with and he behaved in a way which on that night cannot e~y.be excused but in many ways, in many ways the way he went to the help of Mrs Rowe could be applauded. It is my submission that you should not find him guilty of any criminal offence at all. HIS HONOUR: It is my task, at the completion of addresses by counsel, to sum up to you, and that includes directions as to the law, general directions as to the law, directions as to the charges and, in due course, a consideration of the evidence. That will take a little time and it seems to me it would be inappropriate if I started this afternoon because it may be that you have to go out late this afternoon to consider your verdict. What I have in mind then is to start at 10 o'clock in the morning and I will sum up to you immediately upon starting tomorrow morning. In those circumstances I would ask you to withdraw then until 10 o'clock tomorrow morning. I have previously advised you and directed you about speaking to people outside of the jury in relation to these matters. You have now heard two addresses of counsel and it is even more important that you keep your deliberations amongst yourselves and you consider what has been said by counsel amongst yourselves. It is more-- important than it has been at any time during the trial that you don't seek the opinion of any other person and you don't accept the opinion of any other person about matters that have occurred in this court. There probably are only about 20 of us that know everything that has happened in this court, there is counsel, there is me, the solicitor, there is my staff and there is yourselves. We have heard all of the evidence, we have heard all of the addresses. No one else you speak to has had the advantage that we have had. So, ladies and gentlemen, this afternoon and tonight, and until tomorrow morning, please try and keep to yourself all that you have heard over these last two days, and especially what you you have heard..~his morning. Ladies and gentlemen, I would ask you then if you would be prepared to resume at 10 o'clock in the morning, when, as I say, I will sum the matter up and tomorrow morning I will ask you to retire for the We will adjourn purpose of considering your verdict. then until 10 o'clock. JURY LEAVE COURT 1.07 P.M. HIS HONOUR: I was intending to show at some stage a memorandum to the jury inrelation to directions on murder and manslaughter and self defence. Can I distribute that to counsel some time this afternoon for their consideration so you can make whatever comments are necessary, and would it be perhaps not too inconvenient if we resume at quarter to 10 or even earlier, would it suit you, half past 9, to discuss that so that the jury can start to be charged at 10 o'clock. Would that suit you? MS VANSTONE: MR DAVID: HIS HONOUR: Apart from those directions I intended to give directions in relation to Mr Warren's evidence, as was discussed during the voir dire. Is there anything further you want to say about that Ms Vanstone?-- I am not asking you to say it now. MS VANSTONE: No. I am not sure what directions your Honour would want to give and of course if your Honour were disposed to advise us, then that would be helpful. HIS HONOUR: What I had in mind was to say something to the effect that his evidence could only be used for the purpose of establishing familiarity with firearms and could not be used for any other purpose, but in particular to show a predisposition to use the gun and, further, not to show a breach of his permit or the law in carrying the gun. MS VANSTONE: I have some difficulty about that. Mr David made a submission in his address that Mr Foreman had always abided by the gun laws, and the faqt. is there is no evidence that he has always abided by the gun laws. The only evidence we have suggests he hadn't. It sort of muddies the waters a bit. That is not what my learned friend Ms Vanstone said in argument previously. HIS HONOUR: Do you say by that what, Ms Vanstone, that they could use the evidence for - MS VANSTONE: The evidence is that he shouldn't have been carrying a firearm to show it to Mrs Rowe. He said in his interview that he did it at least once before as well. He said in his statement to police though, yes. It just might impact on the direction that your Honour is going to give. Thank you. HIS HONOUR: Ms Vanstone said there was a defence to the charge of carrying, that he was carrying it for display, that was part of Ms Vanstone's argument. MS VANSTONE: I don't think that was my argument. We have had Mr Warren's evidence since then and it seems that the class C licence doesn't enable display to your mates. I wasn't going to raise it and I didn't raise it in my address of course, but Mr David has now said, '- given evidence of good character in relation to firearms that he has always abided by the law, and we haven't any evidence of that. What we have just puts it in doubt. HIS HONOUR: I will consider that then. Are there Not that I can think of. Mr David? any other special directions you say I ought to give? No. HIS HONOUR: Would half past nine suit counsel or do MR DAVID: you think later would suit you? MR DAVID: Half past nine. memorandum going to extend to the manslaughter aspect? HIS HONOUR: Yes. MS VANSTONE: Not by means of self defence but effecting an arrest. Yes, I think there has to be a direction given on that, even though it is not part of the defence case, and indeed of course you addressed the jury on that. MS VANSTONE: I expected a direction, I was not sure if it would be included in the memorandum, that is all. HIS HONOUR: Can I ask you, Ms Vanstone, I think you conceded in your address that if you failed to negative the matter on 15(1)(a) then there must be a general acquittal of both? MS VANSTONE: HIS HONOUR: If I was to give a direction in those terms it makes it very much easier for the jury to understand the difference between 15(1)(a) and 15(1)(b) Yes, it does. Would you accept that? I would. I think it is sensible, with MS VANSTONE: HIS HONOUR: MS VANSTONE: respect. MR DAVID: HIS HONOUR: MR DAVID: HIS HONOUR: I agree with that. That would suit you, Mr David? Yes. I will let you have that, if I can, this'- afternoon, if not very early tomorrow morning. ADJOURNED 1.12 P.M. TO THURSDAY, 16 MAY 1996 AT 9.30 A.M. LANDER J R V KINGSLEY FOREMAN THURSDAY, 16 MAY 1996 RESUMING 9.35 A.M. HIS HONOUR: I mentioned to counsel last night a proposal for a memorandum which I want to speak-~o because there are some alterations I want to make. Firstly, on the first page delete the word 'someone' in 1, 2 and 3 and make it 'the deceased', and under Intention/State of mind, in paras.3 and 4, delete 'someone' and make it 'the deceased.' As I said in the memorandum, I have not included provocation but it seems to me provocation can't arise because on the concession made by the Crown, if threats were made then the accused ought to be acquitted completely, so provocation would be an unnecessary Do you agree with direction, I would have thought. that? MS VANSTONE: Yes. MR DAVID: The defence hasn, t, in a sense, been raised by the defence at all, it hasn't been commented on. But all I can say is, theoretically I suppose it might be argued that the brandishing of the knife to start off with and then running out might have been a provocative act, even if he didn't turn around at the other end, but it is so slight that I wouldn't suggest your Honour putsit in. HIS HONOUR: Do you want to reconsider your position having heard Mr David? MS VANSTONE: No, sir. HIS HONOUR: Can I hand you a document now called steps of Reasoning because what I propose is to delete pp.4 and 5 in relation to the directions on manslaughter. I will give you a chance to read that before I comment on it. So this is instead of pp.4 and 5 or in substitution of? No, it is the reasons for deleting pp.4 and 5. COUNSEL PERUSE DOCUMENT Does any counsel have a comment on that? HIS HONOUR: I, with respect, agree that pp.4 and 5 are unnecessary and I don't, having just read it briefly, quarrel with the reasons. It doesn't matter why I suppose. HIS HONOUR: Yes. HIS HONOUR: Perhaps if we could deal with that. you agree Mr David, I ought not to direct - I have one reservation. In my submission, although it has in a sense not been argued by the defence, it might be open to the jury that there is manslaughter by straight unlawful and dangerous act. That is why I say it can't arise. It might arise if the jury come to this stage of reasoning, they reject the defendant's statement to the police that he was under threat. wasn't under threat at all. He fired the pistol without the appropriate intention, didn't intend to cause grievous bodily harm~ didn't intend to kill, just fired it,.and in doing that was committing an unlawful and dangerous act because there was no lawfulness because he was not under the threat of self-defence etc. But before you get to that you will have determined that the Crown have failed to establish the matter under s.15(2), they have failed to make out that your client had not acted in self-defence, therefore it could never be an unlawful act. That is what I spent some time trying to develop, that if you first consider self-defence and if you reach the conclusion that self-defence has not been made out, then there has not been an unlawful act - MR DAVID: There has been an unlawful act if self- defence has not been made out. HIS HONOUR: By the Crown. I put it around the wrong way. If you establish that the Crown have failed to negative self-defence. MR DAVID: HIS HONOUR: act ever arise? MR DAVID: That is the end of the case. Then how could an unlawful and dangerous No, I am talking about a situation where the Crown might have negatived defence, they have proved beyond reasonable doubt that there was no se!~efence at all, it was just a lot of lies, untrue, or whatever. If that factual situation has arisen, it might be open to the jury that there is no self-defence, he has shot a man who is running out of the service station. HIS HONOUR: But they haven't made out the intention for murder. MR DAVID: No intention to murder, no intention to cause grievous bodily harm, that arises, in a sense, in the sense he says he just fired, and it is a matter for the jury as to whether that is to be accepted or not. Then the situation is, having just fired, not for a lawful purpose, because there is no self-defence, it is an unlawful and dangerous act, without the appropriate intention. That is the only reservation I have to what your Honour has put. As I say, it is very theoretical. HIS HONOUR: Ms Vanstone, what do you say about that? If Mr David wants it put then certainly there is no difficulty. HIS HONOUR: I will put that, an unlawful and dangerous act in the circumstances you mention. MR DAVID: With the greatest of respect, I accept and really admire the way your Honour has split it into two questions, whether there is self-defence, whether there is not self-defence. Let's deal with the self-defence situation, which seems to be the real defence, and then let's deal with the others as a separate entity, and that is another sub addition of category 2 really where self-defence has been negated by the Crown. HIS HONOUR: Then in that respect you would want me to leave paragraph numbered 3 on the manslaughter? Yes, in a very succinct form I think it MR DAVID: can be done. HIS HONOUR: MR DAVID: I will try. I am not talking about style. I am just looking at the quantum, in a very succinct form· HIS HONOUR: Do you agree that criminal negligence can't arise~ MR DAVID: NO, I just don't think that is on in this case, it is so bound un with the other defence. HIS MONOUR: I think conceptually it can't arise if you first consider self-defence because he would not have been guilty of an offence. Then I will change 4 to read 'In the circumstances of this case, the issue of manslaughter may arise in two ways' and deal with the third as the second. Are there any other amendments? MS VANSTONE: Just one or two things. Just dealing with the new para.2, the third paragraph of that says: 'It necessarily follows that the question of self~defence would have to be considered again.' But hasn't it already been disposed of under the earlier consideration of whether there is a defence to murder? HIS MONOUR: You only move to this if you have excluded self-defence. And you have to assume by that then that the firing remains unlawful. MS VANSTONE: Yes. HIS HONOUR: That would mean, if you are right about that, you'd take out pars.3 and 4, wouldn't you? Under the new 2 you'd take out the third and fourth paragraph? MS VANSTONE: 'The accused may be guilty of manslaughter, It is not going despite having a genuine belief.' through self-defence any longer. HIS HONOUR: Yes, that's right. MS VANSTONE: HIS HONOUR: Do you agree on p.5 from 'The accused may be guilty of manslaughter, despite having a genuine belief' onwards is to come out, because that is going through self-defence again? MS VANSTONE: MR DAVID: Mr David's proposition arising after you having made out that the gun was not fired in self-defence in any way. MS VANSTONE: MR DAVID: And the second thing, no intention to murder at the time. two? MR DAVID: MS VANSTONE: That is so, isn't it, they are the Go back to p.2 please, the original p.2 of the memorandum. It is the topic of the concession made by the Crown. In my submission that is not the concession I made and I'm sorry if anything I said after addresses yesterday may have misled your Honour. The concession I made was that if there was a threat by the deceased to the accused, if there was a threat in fact and he responded to that, genuinely and reasonably, then he is not guilty of anything. Now your Honour has put that a bit more widely here. Your Honour hasn't put in anything about the threat. It should read, in my submission, something along these lines: 'It is conceded that if the ladies and gentlemen of the jury are of the opinion that the Crown has failed to exclude as a reasonable possibility that the deceased threatened the accused with the replica and that in the face of that the accused genuinely believed' or 'in response to that the accused genuinely believed' etc. HIS HONOUR: Can I read what I suggest, subject to hearing Mr David: 'It is conceded that if the ladies and gentlemen of the jury are of the opinion that the Crown has failed to exclude as a reasonable possibility that the deceased threatened the accused with a replica i firearm, and in those circumstances the accused genuinely believed that the force was necessary and reasonable for the purpose of defending himself and Mrs Rowe, he is not guilty of murder or any other offence.' I think that is right. Yes. I think it says the same. I think Ms Vanstone is right to raise the facts of her concession. But in the facts of the case it could only be that incident. MS VANSTONE: On the next page, p.3, I was just concerned when I read it this morning as to the burden of proof and whether in para.2 and/or right down to CRIMINAL NEGLIGENCE, whether the burden of proof might have become a wee bit lost there as to some of the matters, but I might be wrong about that. I do see that your Honour has put it in that middle sentence but I was just concerned that it wasn't abundantly clear there. It is easier to talk in terms of self-defence being positive matters but at the end of the day, as long as it is reiterated that it is the Crown that has to - How do you suggest it be changed? MS VANSTONE: Rather than saying 'If the ladies and gentlemen of the jury are of the opinion,' it might have been perhaps clearer to say something to the effect of 'If the Crown cannot exclude.' HIS HONOUR: Can we say 'If a reasonable possibility rises' then put (i) and (ii) 'Then the defence of self-defence arises unless negatived beyond reasonable doubt.' MS VANSTONE: Yes, that is often said to be the other side of the beyond reasonable doubt coin but sometimes it is criticised too as being a derivation of beyond reasonable doubt rather than the expression itself. I acknowledge that it might require some consequential amendments too. HIS HONOUR: What are you suggesting? MS VANSTONE: I haven't sat down and redrafted the whole paragraph. Could I mention one other thing in that paragraph, after (i) and (ii). Your Honour has 'Then the defence of self-defence arises again.' Actually this goes back to a point - HIS HONOUR: Where are you reading from? MS VANSTONE: I am reading from p.3 para.2 CONTINUED matters that have occurred in this court. There probably are only about 20 of us that know everything that has happened in this court, there is counsel, there is me, the solicitor, there is my staff and there is yourselves. We have heard all of the evidence, we have heard all of the addresses. No one else you speak to has had the advantage that we have had. So, ladies and gentlemen, this afternoon and tonight, and until tomorrow morning, please try and keep to yourself all that you have heard over these last two days, and especially what you you have heard..~his morning. Ladies and gentlemen, I would ask you then if you would be prepared to resume at 10 o'clock in the morning, when, as I say, I will sum the matter up and tomorrow morning I will ask you to retire for the We will adjourn purpose of considering your verdict. then until 10 o'clock. JURY LEAVE COURT 1.07 P.M. HIS HONOUR: I was intending to show at some stage a memorandum to the jury inrelation to directions on murder and manslaughter and self defence. Can I distribute that to counsel some time this afternoon for their consideration so you can make whatever comments are necessary, and would it be perhaps not too inconvenient if we resume at quarter to 10 or even earlier, would it suit you, half past 9, to discuss that so that the jury can start to be charged at 10 o'clock. Would that suit you? MS VANSTONE: MR DAVID: HIS HONOUR: Apart from those directions I intended to give directions in relation to Mr Warren's evidence, as was discussed during the voir dire. Is there anything further you want to say about that Ms Vanstone?-- I am not asking you to say it now. MS VANSTONE: No. I am not sure what directions your Honour would want to give and of course if your Honour :: /'~ JMg 3J were disposed to advise us, then that would be helpful. What I had in mind was to say something to the effect that his evidence could only be used for the purpose of establishing familiarity with firearms and could not be used for any other purpose, but in particular to show a predisposition to use the gun and, further, not to show a breach of his permit or the law in carrying the gun. I have some difficulty about that. Mr David made a submission in his address that Mr Foreman had always abided by the gun laws, and the faqt. is there is no evidence that he has always abided by the gun laws. The only evidence we have suggests he hadn't. It sort of muddies the waters a bit. That is not what my learned friend Ms Vanstone said in argument previously. Do you say by that what, Ms Vanstone, that they could use the evidence for - The evidence is that he shouldn't have been carrying a firearm to show it to Mrs Rowe. He said in his interview that he did it at least once before as well. He said in his statement to police though, yes. It just might impact on the direction that your Honour is going to give. Thank you. HIS HONOUR: Ms Vanstone said there was a defence to the charge of carrying, that he was carrying it for display, that was part of Ms Vanstone's argument. I don't think that was my argument. We have had Mr Warren's evidence since then and it seems that the class C licence doesn't enable display to your mates. I wasn't going to raise it and I didn't raise it in my address of course, but Mr David has now said, '- given evidence of good character in relation to firearms that he has always abided by the law, and we haven't any evidence of that. What we have just puts it in doubt. :: ~ I will consider that then. Are there any other special directions you say I ought to give? Not that I can think of. Mr David? No. Would half past nine suit counsel or do you think later would suit you? Half past nine. That is fine. Is your Honour's memorandum going to extend to the manslaughter aspect? Yes. Not by means of self defence but effecting an arrest. Yes, I think there has to be a direction given on that, even though it is not part of the defence case, and indeed of course you addressed the jury on that. I expected a direction, I was not sure if it would be included in the memorandum, that is all. Can I ask you, Ms Vanstone, I think you conceded in your address that if you failed to negative the matter on 15(1)(a) then there must be a general acquittal of both? Yes. If I was to give a direction in those terms it makes it very much easier for the jury to understand the difference between 15(1)(a) and 15(1)(b) Yes, it does. Would you accept that? I would. I think it is sensible, with MS VANSTONE: HIS HONOUR: MS VANSTONE: respect. MR DAVID: HIS HONOUR: MR DAVID: HIS HONOUR: I agree with that. That would suit you, Mr David? Yes. I will let you have that, if I can, this'- afternoon, if not very early tomorrow morning. ADJOURNED 1.12 P.M. TO THURSDAY, 16 MAY 1996 AT 9.30 A.M. LANDER J R V KINGSLEY FOREMAN THURSDAY, 16 MAY 1996 RESUMING 9.35 A.M. HIS HONOUR: I mentioned to counsel last night a proposal for a memorandum which I want to speak-~o because there are some alterations I want to make. Firstly, on the first page delete the word 'someone' in 1, 2 and 3 and make it 'the deceased', and under Intention/State of mind, in paras.3 and 4, delete 'someone' and make it 'the deceased.' As I said in the memorandum, I have not included provocation but it seems to me provocation can't arise because on the concession made by the Crown, if threats were made then the accused ought to be acquitted completely, so provocation would be an unnecessary direction, I would have thought. Do you agree with that? MS VANSTONE: Yes. The defence hasn, t, in a sense, been raised by the defence at all, it hasn't been commented on. But all I can say is, theoretically I suppose it might be argued that the brandishing of the knife to start off with and then running out might have been a provocative act, even if he didn't turn around at the other end, but it is so slight that I wouldn't suggest your Honour putsit in. HIS HONOUR: Do you want to reconsider your position having heard Mr David? No, sir. Can I hand you a document now called steps of Reasoning because what I propose is to delete pp.4 and 5 in relation to the directions on manslaughter. I will give you a chance to read that before I comment on it. So this is instead of pp.4 and 5 or in substitution of? No, it is the reasons for deleting pp.4 and 5. COUNSEL PERUSE DOCUMENT Does any counsel have a comment on that? I, with respect, agree that pp.4 and 5 are unnecessary and I don't, having just read it briefly, quarrel with the reasons. HIS HONOUR: MS VANSTONE: HIS HONOUR: you agree Mr David, I ought not to direct - MR DAVID: submission, although it has in a sense not been argued by the defence, it might be open to the jury that there is manslaughter by straight unlawful and dangerous act. That is why I say it can't arise. It might arise if the jury come to this stage of reasoning, they reject the defendant's statement to the police that he was under threat. wasn't under threat at all. He fired the pistol without the appropriate intention, didn't intend to cause grievous bodily harm~ didn't intend to kill, just fired it,.and in doing that was committing an unlawful and dangerous act because there was no lawfulness because he was not under the threat of self-defence etc. But before you get to that you will have determined that the Crown have failed to establish the matter under s.15(2), they have failed to make out that your client had not acted in self-defence, therefore it could never be an unlawful act. That is what I spent some time trying to develop, that if you first consider self-defence and if you reach the conclusion that self-defence has not been made out, then there has not been an unlawful act - :: ~ i i i ? MR DAVID: There has been an unlawful act if self- defence has not been made out. HIS HONOUR: By the Crown. I put it around the wrong way. If you establish that the Crown have failed to negative self-defence. MR DAVID: HIS HONOUR: act ever arise? MR DAVID: That is the end of the case. Then how could an unlawful and dangerous No, I am talking about a situation where the Crown might have negatived defence, they have proved beyond reasonable doubt that there was no se!~efence at all, it was just a lot of lies, untrue, or whatever. If that factual situation has arisen, it might be open to the jury that there is no self-defence, he has shot a man who is running out of the service station. HIS HONOUR: But they haven't made out the intention for murder. No intention to murder, no intention to cause grievous bodily harm, that arises, in a sense, in the sense he says he just fired, and it is a matter for the jury as to whether that is to be accepted or not. Then the situation is, having just fired, not for a lawful purpose, because there is no self-defence, it is an unlawful and dangerous act, without the appropriate intention. That is the only reservation I have to what your Honour has put. As I say, it is very theoretical. HIS HONOUR: Ms Vanstone, what do you say about that? If Mr David wants it put then certainly there is no difficulty. I will put that, an unlawful and dangerous act in the circumstances you mention. With the greatest of respect, I accept and really admire the way your Honour has split it into two questions, whether there is self-defence, whether there is not self-defence. Let's deal with the self-defence situation, which seems to be the real defence, and then let's deal with the others as a separate entity, and that is another sub addition of :: ~ category 2 really where self-defence has been negated by the Crown. Then in that respect you would want me to leave paragraph numbered 3 on the manslaughter? Yes, in a very succinct form I think it MR DAVID: can be done. HIS HONOUR: MR DAVID: I will try. I am not talking about style. I am just looking at the quantum, in a very succinct form· Do you agree that criminal negligence can't arise~ · NO, I just don't think that is on in this case, it is so bound un with the other defence. I think conceptually it can't arise if you first consider self-defence because he would not have been guilty of an offence. Then I will change 4 to read 'In the circumstances of this case, the issue of manslaughter may arise in two ways' and deal with the third as the second. Are there any other amendments? MS VANSTONE: Just one or two things. Just dealing with the new para.2, the third paragraph of that says: 'It necessarily follows that the question of self~defence would have to be considered again.' But hasn't it already been disposed of under the earlier consideration of whether there is a defence to murder? You only move to this if you have excluded self-defence. HIS MONOUR: And you have to assume by that then that the firing remains unlawful. MS VANSTONE: Yes. HIS HONOUR: That would mean, if you are right about that, you'd take out pars.3 and 4, wouldn't you? Under the new 2 you'd take out the third and fourth paragraph? MS VANSTONE: HIS HONOUR: 'The accused may be guilty of manslaughter, despite having a genuine belief.' It is not going through self-defence any longer. MS VANSTONE: :: JMg 4A HIS HONOUR: Do you agree on p.5 from 'The accused may be guilty of manslaughter, despite having a genuine belief' onwards is to come out, because that is going through self-defence again? MS VANSTONE: MR DAVID: Mr David's proposition arising after you having made out that the gun was not fired in self-defence in any way. MS VANSTONE: MR DAVID: And the second thing, no intention to murder at the time. two? MR DAVID: MS VANSTONE: That is so, isn't it, they are the Go back to p.2 please, the original p.2 of the memorandum. It is the topic of the concession made by the Crown. In my submission that is not the concession I made and I'm sorry if anything I said after addresses yesterday may have misled your Honour. The concession I made was that if there was a threat by the deceased to the accused, if there was a threat in fact and he responded to that, genuinely and reasonably, then he is not guilty of anything. Now your Honour has put that a bit more widely here. Your Honour hasn't put in anything about the threat. It should read, in my submission, something along these lines: 'It is conceded that if the ladies and gentlemen of the jury are of the opinion that the Crown has failed to exclude as a reasonable possibility that the deceased threatened the accused with the replica and that in the face of that the accused genuinely believed' or 'in response to that the accused genuinely believed' etc. HIS HONOUR: Can I read what I suggest, subject to hearing Mr David: 'It is conceded that if the ladies and gentlemen of the jury are of the opinion that the Crown has failed to exclude as a reasonable possibility that the deceased threatened the accused with a replica i firearm, and in those circumstances the accused genuinely believed that the force was necessary and reasonable for the purpose of defending himself and Mrs Rowe, he is not guilty of murder or any other offence.' I think that is right. MS VANSTONE: Yes. I think it says the same. I think Ms Vanstone is right to raise the facts of her concession. But in the facts of the case it could only be that incident. MS VANSTONE: On the next page, p.3, I was just concerned when I read it this morning as to the burden of proof and whether in para.2 and/or right down to CRIMINAL NEGLIGENCE, whether the burden of proof might have become a wee bit lost there as to some of the matters, but I might be wrong about that. I do see that your Honour has put it in that middle sentence but I was just concerned that it wasn't abundantly clear there. It is easier to talk in terms of self-defence being positive matters but at the end of the day, as long as it is reiterated that it is the Crown that has to - How do you suggest it be changed? Rather than saying 'If the ladies and gentlemen of the jury are of the opinion,' it might have been perhaps clearer to say something to the effect of 'If the Crown cannot exclude.' Can we say 'If a reasonable possibility rises' then put (i) and (ii) 'Then the defence of self-defence arises unless negatived beyond reasonable doubt.' Yes, that is often said to be the other side of the beyond reasonable doubt coin but sometimes it is criticised too as being a derivation of beyond reasonable doubt rather than the expression itself. I acknowledge that it might require some consequential amendments too. HIS HONOUR: What are you suggesting? /-~ JMg 4A MS VANSTONE: I haven't sat down and redrafted the whole paragraph. Could I mention one other thing in that paragraph, after (i) and (ii). Your Honour has 'Then the defence of self-defence arises again.' Actually this goes back to a point - Where are you reading from? I am reading from p.3 para.2 sub-para.(ii), CONTINUED where it goes on 'Then the defence of self-defence arises again' Mine hasn't got the word 'again'. Sorry, I've added that in. 'Then the defence of self-defence arises'. My complaint there or my suggestion is that the expression 'self-defence' shouldn't be used to cover both these situations. I acknowledge the s.15 has a heading 'Self-defence' and it takes in lawful arrest, but, in talking to the jury, in my submission, self-defence should be left just for that situation where Mr Foreman claims to have been~put in .... fear. In my notes to the jury I refer to it as defence of the person and a defence to assist or effect in the - Yes, that's right, but if you go back to p.2, your Honour says, under the heading 'Lawful/Unlawful', 'There are two ways self-defence could arise in this matter. One, if the accused was acting in defence of himself or Mrs Rowe. Two, if the accused was acting to effect or assist in the lawful I should have gone first to that obviously. HIS HONOUR: Act says. MS VANSTONE: the heading 'Self-defence', but, in my submission, that's misleading. We can all see that really (b) isn't about self-defence. We can all see that. I know it's got that heading, but, when talking to a jury about self-defence being effecting a lawful arrest, it's just The reason I use that, that's what the HIS HONOUR: What do you suggest? MS VANSTONE: I suggest that on p.2, in the second paragraph, instead of saying 'A killing is not unlawful', et cetera, to Say 'A killing is not unlawful' or 'There are certain circumstances in which killing is not unlawful. It is not unlawful' :: /-~ HIS HONOUR: I suppose 'A killing is not unlawful if', take out the rest of the words, and then one and two. MS VANSTONE: HIS HONOUR: himself. you happy with that? MS VANSTONE: HIS HONOUR: MR DAVID: HIS HONOUR: MS VANSTONE: Yes. 'If the accused was acting in defence of Two, if the accused was acting to assist', are Yes. Are you happy with that? Yes. Let's go to p.3. Instead of saying 'Then the defence of self-defence arises again', then - HIS HONOUR: Where are you now? MS VANSTONE: Now I've gone through two, sub-paras.(i) and (ii), to the words 'Then the defence of self-defence arises'. HIS HONOUR: MS VANSTONE: HIS HONOUR: MS VANSTONE: my submission. P.37 Yes. Got that. So that needs to be reworded as well, in 'Then the question of unlawfulness HIS HONOUR: MS VANSTONE: HIS HONOUR: burden lies. MS VANSTONE: arises again', or however your Honour wishes to put it, your Honour put it more clearly than that. HIS HONOUR: Would you be happy with these words: 'Then the question of whether the killing was unlawful arises' MS VANSTONE: Arises in another context or again or - because I think they've already dealt with unlawfulness because they've already dealt with self-defence. 'Arises again' Yes. Yes. You're concerned about where the Yes. that paragraph, if your Honour is in agreement with me, that it needs some change. HIS HONOUR: You don't have any suggestions? Your Honour might have to redesign" 35 36 37 38 :: /-~ AT 4B MS VANSTONE: done that. summing up. HIS HONOUR: MR DAVID: I could sit down and do it but I hadn't I don't presume to write your Honour's Do you want to say anything about that? Yes. I think that does result in a problem. It's a problem that is very difficult to overcome because, as it appears there, it appears as though there's an intermediate finding of fact before the onus of proof arises, namely, before self-defence arises, and, therefore, before it has to be negated beyond reasonable doubt, they firstly have to-~e of another opinion. Might I suggest something like this: That 'If you find that the accused fired the pistol to effect or assist', et cetera, so that, having said that, you say 'I point out to you very clearly what I mean by "finding" is as a mere reasonable possibility or the Crown have not negated that proposition beyond reasonable doubt', something like that, and then go on. HIS HONOUR: I think that's 9ot to be included in the written document they take away though, doesn't it? Yes. Rather than just explain to them. The HIS HONOUR: written document - This is going to be for them, is it? Yes. Sorry, I thought this was - I think just 'Of the opinion', in a sense, puts, without meaning it to do so, puts an onus on it which raises something before we get to the self-defence stage. I think it can be interpreted in that way although it's not meant to be. HIS HONOUR: Could you reverse the paragraph? Would this satisfy the counsel? 'The question of whether the killing was unlawful arises again and, unless negatived beyond reasonable doubt, will operate to excuse the accused of murder if the jury are of the opinion that the accused fired the pistol. Two, the accused fired the pistol without intending to cause - ' ff MR DAVID: something with it to carry along with the onus of proof they are applying in coming to that opinion. HIS HONOUR: Then I can repeat it, put it another way: 'The question of whether the killing was unlawful arises again and, unless negatived beyond reasonable doubt by the Crown, will operate at least to excuse the accused of murder if the jury is satisfied beyond reasonable doubt - satisfied by the Crown beyond reasonable doubt', does that satisfy? MR DAVID: Yes, could you just - yes. Can I read it again? MR DAVID: Yes. HIS HONOUR: 'The question of whether the killing was unlawful arises again and, unless negatived beyond reasonable doubt by the Crown, will operate at least to excuse the accused of murder if the ladies and gentlemen of the jury are satisfiedby the Crown beyond reasonable doubt one, that the accused fired the pistol, two, that the accused fired the pistol'. MR DAVID: I've got a horrible feeling that might reverse the onus. Can I have sometime to look at this? Certainly. MR DAVID: I didn't think of that until my learned friend raised it. Would your Monour excuse me? Certainly. Do you want me to adjourn for a while? MR DAVID: Perhaps we could deal with everything that's got to be dealt with and then put our heads together and try and - HIS HONOUR: Yes, certainly. saw counsel in chambers? MR DAVID: Yes, I think so. HIS HONOUR: I'll adjourn into chambers with counsel to discuss the matter. MR DAVID: If I could make it clear, I don't think there's any argument between us about any of this, if there is going to be argument, we can do that in open Would it be easier if I :: /'~ court. I think it's a matter of redrafting what we believe to be the case. HIS HONOUR: Perhaps if we go into chambers and record on transcript what happened in chambers after. ADJOURNED 10.05 A.M. RESUMING 11.32 A.M. HIS HONOUR: That memorandum will be with us in about five minutes time. JURY ENTERS COURT 11.33 A.M. HIS HONOUR: Ladies and gentlemen, I'm sorry to have kept you waiting this morning but there's been~-~a. good reason for that and thatis that I'm having prepared for you a memorandum which sets out, in summary form, the law in relation to murder and manslaughter and during the course of my address - the document is presently being 15 typed - I'll hand it to you so that you are able to take away from this summing up a document which, as I say, sets out a summary of the law. HIS HONOUR SUMS UP TO JURY -78- jury 'Well, why did the robber say that' and of course the answer might well be 'That's because the robber knew that he had pointed the gun at the accused and got a shot back in return.' So that's a hearsay use of what the robber allegedly said to the accused. In my submission, it is not for the jury to be speculating about what the robber had in his mind that might have prompted him to say that, even if evidence of that statement were in evidence. But there is another matter and this is perhaps the one I would ask you to put to the jury since in a sense it is water under the bridge. That statement by the robber, if indeed it was said, is perfectly referable to the time at which he comes back into the service station carrying the replica. We see the accused on the video going up to him again and pointing his own gun at him (INDICATES). It might have been then that the robber said to him, if he did, 'It's not a real gun.' I'd ask your Honour to say to the jury that in fact there isn't evidence in this court that was said and it has been pointed out that even if it were said, there's another explanation for it, and they shouldn't speculate as to what might or might not have been in the robber's mind, and of course I would ask your Honour to put that other explanation. HIS HONOUR: Can you let me have it again? You tell me that I ought to tell them not to speculate on what was in the :: -79- robber's mind because there is no evidence of what he said. MS VANSTONE: First I would ask your Honour to tell them that there is no evidence that the robber did say that. That is number 1. Even if he did say that, it is referable to HIS HONOUR: I understand that. MS VANSTONE: They shouldn't speculate as to which explanation is more likely, they should disregard that matter. HIS HONOUR: He may have said that because the accused walked towards him with his gun? ,i ! MS VANSTONE: After the time of the shooting and at a time when we know the robber was still carrying the replica, and not just walked towards him with his gun, pointed his gun at him. So I ask your Honour simply to withdraw that from the whole equation. HIS HONOUR: I understand what you are saying. Anything else? Do you want to say anything about that? i ! · i MR DAVID: I ask your Honour not to bring the jury back for that comment at this stage. It will get everything out of context and what your Honour said was perfectly proper. Your Honour didn't say there was evidence of the fact that he had said that, Your Honour said that the accused said :: -80- that and, if that's the truth, then certain consequences might follow. HIS HONOUR: I don't think I did. MR DAVID: I don't think your Honour said that was evidence. HIS HONOUR: that?' I think I said 'Why would the robber have said MR DAVID: Yes, if it was said. Your Honour didn't say there was evidence in this case that it was said at all. As for the second part of the equation, as I look at the photos I don't think there is any evidence that he has come back with a gun in the hand. HIS HONOUR: I think it does. MR DAVID: The jury can see that. You have said very clearly to the jury that whatever you say, whatever we say about the facts, is a matter for them. They can look at that and evaluate that in their own way. To bring them back for that, at this stage, would be something totally out of context. HIS HONOUR: But if I elevate hearsay evidence above itself, that is not - MR DAVID: You didn't give that a hearsay use, any more than any of the other things you said about the accused's statement :: -81- to police. It is material before this court, it is not evidence, and if it is true, if it is true, as to what he said, and that's what we are evaluating, the truth of what he said, there is a certain consequence they might or might not draw, and so it is with all of the evidence. If your Honour is going to go and explain the nature of hearsay - HIS HONOUR: I won't explain the nature of hearsay. MR DAVID: We will be getting into all sorts of sub problems with res gestae, things like that. There will be all sorts of problems and there is no need to do it. HIS HONOUR: But in fairness to the Crown case, it is hearsay, Ms Vanstone convinced me of that, and in those circumstances it is probably appropriate to elevate it to a position where it has a force of evidence it otherwise wouldn't have. li MR DAVID: Can I enquire what your Honour is going to say about it? HIS HONOUR: What I was intending to say was that I had told them that I will take them to the evidence, that what I said to them 'Why would the robber have said that?' 'That is a matter for you.' And I will say that in fact there is no direct evidence of him having said that, and for that reason alone they ought not to speculate on it. MR DAVID: If we stop there, I have really not a problem, although it is hardly worth bringing a jury back for that. :: -82- But if your Honour is then going to go on and explain the difference between giving evidence and what he said to the police, I am very concerned. HIS HONOUR: No. MS VANSTONE: Is your Honour going to go on to say there is another explanation? HIS HONOUR: I think I may say there may be other explanations which are - MR DAVID: How much does my friend want? HIS HONOUR: She wants me to put it correctly, I think. MR DAVID: No, the first one is 'You can't use it.' Then she says 'If you can use it, you use it our way.' have it both ways. You can't MS VANSTONE: All I want is to neutralise the situation. It is been left in a way that is unfair to the Crown. I want to neutralise it by your Honour pointing out that there is another perfectly reasonable explanation, just so your Honour can say 'Well, look, there it is, disregard it.' because otherwise they are going to have it in their mind. HIS HONOUR: I think if I give the other explanation, Ms Vanstone, and spell it out, I may end up elevating it way above itself either way. :: -83- MS VANSTONE: It is devastating devastating. the way it is left, HIS HONOI/R: I am prepared to go as far as you ask in relation to the first aspect of it. As to the second I will say there may be other reasons for why he said that and for all of those reasons it ought not to be speculated on. MS VANSTONE: It is very, very devastating as it is left and I am grateful for what your Honour says about it, but, in my submission, it wouldn't hurt to say another possible explanation is that it was said after the shooting. HIS HONOUR: That's right, isn't it, it is to use the evidence in the way that it ought not to be used. MS VANSTONE: It has already been put to them that they can look at the statement and evaluate it. HIS HONOUR: I will tell them they can't, but then if I was to say ~You may actually attribute that statement to what was the use of the gun after' then it is like asking them to use it again. MS VANSTONE: If you say 'You can't use it' they will say ~Why is the defence being denied this argument which you, the judge, has thought of.' They will say 'Isn't this unfair. Mr David has overlooked it, your Honour has come up with it, we are now being asked to disregard it. Why are the defence being deprived of that argument?' That is the :: -84- trouble. If you simply point out the other side of the coin and say 'Look, for those reasons.' HIS HONOUR: But do you agree it would be logically unsound, if you are right that it is hearsay evidence, to use some other incident to explain the evidence? It is elevating it. MS VANSTONE: It is not to explain, it is to tell them why. It is really neutral in any event. It is to undo something that has been done. It is not something that is occurring in the course of addresses. It is a correction of something that has been said, so it has to be seen in that light, in my submission, but I am in your Honour's hands. MR DAVID: Could I make a suggestion? Your Honour could say words to the effect 'I said that by mistake, I shouldn't have said it. Mr David didn't raise it in his address and therefore it shouldn't be used in that way' full stop. HIS HONOUR: Thank you. MS VANSTONE: Can I raise one other point? Is your Honour planning to send equipment into the jury now or just to wait for some request about it? HIS HONOUR: Do you have a view about that? MS VANSTONE: I do. To save them the trouble of asking at some stage, which one would think they would, I would ask that it be provided for them straight away. :: 7 -85- HIS HONOUR: I think so. Are you happy with that? MR DAVID: In my friend's desperation that the jury see it, that's fine. It is within your Honour's province, not my learned friend's or mine. ! l Z I JURY RETURNS 2.48 P.M. HIS HONOUR: Ladies and gentlemen, there is one matter that I ought to raise with you, which arises out of something I said, and it is this: You might recall that I referred you to part of the statement made by the accused to Constable Brennan, and in particular that part of the statement where the accused said this: ~After a few seconds he came back into the shop' talking of the robber 'And I could see he was bleeding from the neck. He was saying something about the gun he had wasn't a real gun.' I then asked you to consider why it is that he might have said that. On reflection, I ought not to have asked you to consider that question. There is no evidence directly from the robber in this court in relation to what was said and there is no evidence, therefore, upon which you ought to speculate as to why the accused related that that was said. So you ought to put out of your mind the question that I asked you to raise in your own mind and to answer. :: he -86- There may be a number of reasons why the robber said what said and it is not useful for the purpose of your deliberations in determining the guilt or innocence of the accused why he might have said that. So I ask you, ladies and gentlemen, to put that aside. I also ask you to have regard to the fact that Mr David did not rely upon that as any part of his address. ignore that part of what I said for the deliberations. You can retire. So I ask you to purpose of your JURY RETIRES 2.51 P.M. HIS HONOUR: MS VANSTONE: Is there anything? Nothing. MR DAVID: No. HIS HONOUR LEAVES BENCH 2.51 P.M. HIS HONOUR RETURNS TO BENCH 6.55 P.M. JURY RETURNS 6.56 P.M. VERDICT (UNANIMOUS) NOT GUILTY OF ANY OFFENCE ACCUSED DISCHARGED