DRAFT LANDER J THURSDAY, 16 MAY 1996 R V KINGSLEY FOREMAN HIS HONOUR IN SUMMING UP TO THE JURY SAID: Ladies and gentlemen, it is my duty to sum up the case to you at this time and when I have done so it will be your duty to retire and consider your verdict. In doing so, in the summing up of this case, I shall have something to say about the law and I shall also have something to say about the facts. It is my duty, of course, to direct you according to the law. For example, the legal meaning of a charge, and you must accept any of the directions I give you in relation to the law, but you, ladies and gentlemen, are alone the judges of fact and it is for you to determine ultimately whether the accused has been found guilty or not. If I say something about the facts with which you do not agree, you should ignore entirely what I say and act upon your own view of the matter. The facts and the way the facts are to be interpreted are your responsibility and no-one, neither the judge nor counsel, can exercise that responsibility for you. In discharging the function that you do in this case, you will bear in mind the importance of a criminal trial from the point of view not only of the accused but also of the community at large. It is obviously important from the accused's point of view because he has been charged with the most serious crime known to our law. And, of course, he is not to be convicted on insufficient or doubtful evidence. It is also important, of course, from the community's point of view, for the criminal courts exist for the protection of the public, and if the charge has been proved beyond reasonable doubt, then plainly it is your duty to say so. I remind you, of course, that it is your function and your obligation to bring in a true verdict according to the evidence and that means only according to the evidence. Before I deal with the charge against the accused, there are certain general matters about which I must say something. Even though they are general matters, they are of great importance. They apply to every criminal trial and it is my duty to remind you of them in this trial, as it is the duty of every judge to remind members of the jury in every criminal trial. And the reason for that is to make sure that you keep those principles carefully in your mind when you retire to consider your verdict. An accused comes to this court, ladies and gentlemen, with a presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proved to the satisfaction of the jury, which I shall mention shortly means proved beyond reasonable doubt. The burden of proving the charge is wholly on the Crown. The accused does not have to prove anything. If he puts forward a defence, he does not have to prove it. It is for the Crown to disprove it or show that it is irrelevant, otherwise the Crown will not have proved its case. Similarly, ladies and gentlemen, if the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the Crown that has to disprove it or show that it is irrelevant, otherwise, as I said, the Crown will have failed to prove its case. I emphasize that because it is not always easy, particularly when discussing a defence such as I must discuss in this case of self-defence, to avoid using words which might be thought to suggest that the accusedr who has put forward a o~ particular explanation for something alleged against him~ a different version of the alleged facts, bears some onus of proof. It is the Crown that has to do all of the proving in this court. And that includes, as I have said, the obligation to disprove any relevant defence or explanation. Therefore you must not be misled by any possible inadequacies of explanation on my part that might seem to detract from the fundamental and constant burden that the Crown has, namely proof beyond reasonable doubt of all of the elements of the offence and the obligation to disprove anything that is put forward by the accused. I might sometimes, ladies and gentlemen, when speaking to you, use the expression ~reasonable possibility'- And that is, in a sense, the other side of the coin to the Crown's obligation to prove something beyond reasonable doubt. If I use the expression 'reasonable possibility', you must understand that to mean that ~ the Crown will have to disprove that reasonable possibility beyond reasonable doubt. And keep that, if you would, ~ ladies and gentlemen, ~ in the forefront of your mind. So I direct you, ladies and gentlemen, to always keep in your mind that the burden of proof is upon the Crown. Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or to show that an accused person is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. You will bear in mind, of course, that this is a practical court of law and your decisions must be made in a reasonable and a sensible way. But if, at the end of the case, you are left with a reasonable doubt about the guilt of the accused, a doubt reasonably arising on the evidence, then you must give him the benefit of that doubt and find him not guilty. If you are left unsure about whom to believe, then you must acquit the accused/ Because it would follow obviously that the Crown has not proved its case beyond reasonable doubt. Unless you can be satisfied upon the evidence beyond reasonable doubt that the charges have been proved, then you cannot convict the accused. If then, as I say, during this summing up to you of matter5 being proved or established to your satisfaction or I use any other expression relating to proof of matters in issue, you will understand and always understand that ~cn ~ ~..~ =~-=~:--= ...... I am speaking about proof or satisfaction beyond reasonable doubt. You have heard, ladies and gentlemen, very able and informed addresses from Ms Vanstone for the Crown and Mr David for the accused. You must carefully consider everything that has been said to you by counsel. Counsel's addresses are very important in criminal trials. When you consider what I say to you on matters of fact, you will keep in mind that if there is something which has been mentioned by counsel but not by me, and there will be, that does not mean that what counsel have said is unimportant or that I do not think it is important, particularly as it is not my intention to cover every matter of evidence and every ground that counsel has spoken to you about. Ladies and gentlemen, I want to say something quickly and briefly about witnesses. In the course of arriving at the truth of the matter you will have to consider the various witnesses who gave evidence in this case. You are the sole judges of fact, as I have said, and it is, therefore, for you and for you alone to decide whether you believe the whole or any particular part of the evidence of any witness. It is for you to make some assessment or evaluation of the witnesses who have given evidence. That is entirely your responsibility. However, in this case, there is not much dispute about the evidence of the witnesses called for the Crown. Indeed, as you will remember, there was very little cross-examination of each of those witnesses. It has not been suggested by Mr David that you cannot accept the evidence of those witnesses. Whilst it is a matter for you, of course, as I have said, ladies and gentlemen, as to whether or not you accept or reject the evidence of any of the witnesses, I remind you, as I have said, Mr David did not ask you to reject any part of their evidence. Ladies and gentlemen, can I also say something very briefly about expert evidence, because you have heard two experts give evidence in this trial. They were Mr DeLaine, who was a ballistics expert, and Dr James, of course, a pathologist. In this trial, ladies and gentlemen, there is no dispute again about the expert evidence. You may, therefore, if you are satisfied upon the assumptions upon which the experts have based their opinion, be satisfied perhaps to accept their evidence. Again, ladies and gentlemen, in this case there has been no suggestion by Mr David that you ought to reject the evidence of the experts, Mr DeLaine and Dr James. Ladies and gentlemen, can I then say something about circumstantial evidence, because, in a sense, this case depends to an extent upon circumstantial evidence. The Crown ask you to draw inferences adverse to the accused from the evidence of what people saw, from the videotape which you have seen and from what the accused said and from the circumstances surrounding the events. There is no mystery, ladies and gentlemen, about circumstantial evidence. It simply refers to the drawing of particular relevant inferences or conclusions from certain proved facts or circumstances. We do that every day, every day of our lives. All of us draw inferences from facts. In saying that the Crown case depended to an extent upon circumstantial evidence is only to say that instead of having a witness give direct evidence of what happened at a particular time, we have in this case a combination of the evidence of an eye witness, Mrs Rowe, to the extent that she can give evidence, videotapes and photographs. And it is from the combination of all of that evidence, ladies and gentlemen, that the Crown asks you to draw inferences. The amount of circumstantial evidence which will suffice to prove a charge beyond reasonable doubt varies from case to case. The number of circumstances that can be brought forward varies from case to case. But the way you approach circumstantial evidence, ladies and gentlemen, is always the same. The process of reasoning is firstly, you decide upon what facts have been proved to your satisfaction/ ~hat is, as I have said before, beyond reasonable doubt. Then you decide what inferences you can draw from the facts which you have found proved. To do that each item of circumstantial evidence must be carefully examined. When deciding whether you accept whether a particular fact has been established to your satisfaction, you are entitled, of course, to have regard to all of the facts. Then, when considering what inferences you are prepared to draw from those particular facts, you do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone. Instead, you keep that fact and all of the other facts in mind and keep each of the facts in conjunction with each other for the purpose of determining whether an inference can be drawn. In other words, to determine what inferences are appropriate on the evidence, the proper approach is to assess the combined effect of all of the items of evidence of circumstantial evidence that you find the Crown has proved to your satisfaction. Can I give you an example of how circumstantial evidence works in the ordinary day and it is a very simple example. Supposing in your house you have a wood fire and suppose you have a conversation with your spouse, either your husband or your wife, and you ask your husband or your wife, as relevantly ~ 4 is, to make arrangements with the wood yard to have some wood delivered. That is quite a simple proposition, quite a simple conversation. You have no further conversation with your spouse after that time, but, the next thing you notice is that, when you go home one night, there is a tonne of wood outside the back door. Now, the two basic facts are simply that there is a wood fire and secondly, you have had a conversation with your spouse. You can infer from those two facts at least these matters, ladies and gentlemen: Firstly, it is probable that your wife or your husband did speak to someone at the wood yard. Secondly, it is likely that your spouse ordered a tonne of wood. Thirdly, it is likely that the wood merchant loaded the truck and delivered it and brought the wood to your place. And, fourthly, it is likely that he was at your house or he or she was at your house on the day which you came home and found the wood. That is only a simple example of how circumstantial evidence can work, ladies and gentlemen, but you can see that inferences can be drawn from two facts and a number of inferences can so be drawn. However, in relation to circumstantial evidence, ladies and gentlemen, you must approach it this way: A charge will not be proved beyond reasonable doubt, even if you think the Crown case is persuasive, if there remains a reasonable possibility of innocence. If there is some reasonable explanation of the evidence consistent with evidence that has not been convincingly excluded by the Crown, then it must follow that the charge has not been proved beyond reasonable doubt. Ladies and gentlemen, the accused has elected to give no evidence in this case. An accused person is not bound to give evidence. It is a right given to an accused person by law. An accused person can remain silent and see if the prosecution has proved its case. I remind you that the prosecution bears the onus of satisfying you beyond reasonable doubt that the accused is guilty as charged. The accused does not have to prove anything. You cannot infer guilt because an accused person elects not to give evidence. Mr David has reminded you that this is not a trial about gun laws or gun licences. He has reminded you that this is a trial to determine the guilt or innocence of his client in relation to the events of.14 October 1995, and he has reminded you that that guilt or innocence must be determined upon the evidence which is ~ in this court. Can I also remind you, as I have already said, that you must reach your conclusion upon the evidence, and DRAFT LANDER J . The burden of proving the charge is wholly on the Crown. The accused does not have to prove anything. If he puts forward a defence, he does not have to prove it. It is for the Crown to disprove it or show that it is irrelevant, otherwise the Crown will not have proved its case. Similarly, ladies and gentlemen, if the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the Crown that has to disprove it or show that it is irrelevant, otherwise, as I said, the Crown will have failed to prove its case. I emphasize that because it is not always easy, particularly when discussing a defence such as I must discuss in this case of self-defence, to avoid using words which might be thought to suggest that the accusedr who has put forward a o~ particular explanation for something alleged against him~ a different version of the alleged facts, bears some onus of proof. It is the Crown that has to do all of the proving in this court. And that includes, as I have said, the obligation to disprove any relevant defence or explanation. Therefore you must not be misled by any possible inadequacies of explanation on my part that might seem to detract from the fundamental and constant burden that the Crown has, namely proof beyond reasonable doubt of all of the elements of the offence and the obligation to disprove anything that is put forward by the accused. I might sometimes, ladies and gentlemen, when speaking to you, use the expression ~reasonable possibility'- And that is, in a sense, the other side of the coin to the Crown's obligation to prove something beyond reasonable doubt. If I use the expression 'reasonable possibility', you must understand that to mean that ~ the Crown will have to disprove that reasonable possibility beyond reasonable doubt. And keep that, if you would, ~ ladies and gentlemen, ~ in the forefront of your mind. So I direct you, ladies and gentlemen, to always keep in your mind that the burden of proof is upon the Crown. Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or to show that an accused person is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. You will bear in mind, of course, that this is a practical court of law and your decisions must be made in a reasonable and a sensible way. But if, at the end of the case, you are left with a reasonable doubt about the guilt of the accused, a doubt reasonably arising on the evidence, then you must give him the benefit of that doubt and find him not guilty. If you are left unsure about whom to believe, then you must acquit the accused/ Because it would follow obviously that the Crown has not proved its case beyond reasonable doubt. Unless you can be satisfied upon the evidence beyond reasonable doubt that the charges have been proved, then you cannot convict the accused. If then, as I say, during this summing up to you of matter5 being proved or established to your satisfaction or I use any other expression relating to proof of matters in issue, you will understand and always understand that I am speaking about proof or satisfaction beyond reasonable doubt. You have heard, ladies and gentlemen, very able and informed addresses from Ms Vanstone for the Crown and Mr David for the accused. You must carefully consider everything that has been said to you by counsel. Counsel's addresses are very important in criminal trials. When you consider what I say to you on matters of fact, you will keep in mind that if there is something which has been mentioned by counsel but not by me, and there will be, that does not mean that what counsel have said is unimportant or that I do not think it is important, particularly as it is not my intention to cover every matter of evidence and every ground that counsel has spoken to you about. Ladies and gentlemen, I want to say something quickly and briefly about witnesses. In the course of arriving at the truth of the matter you will have to consider the various witnesses who gave evidence in this case. You are the sole judges of fact, as I have said, and it is, therefore, for you and for you alone to decide whether you believe the whole or any particular part of the evidence of any witness. It is for you to make some assessment or evaluation of the witnesses who have given evidence. That is entirely your responsibility. However, in this case, there is not much dispute about the evidence of the witnesses called for the Crown. Indeed, as you will remember, there was very little cross-examination of each of those witnesses. It has not been suggested by Mr David that you cannot accept the evidence of those witnesses. Whilst it is a matter for you, of course, as I have said, ladies and gentlemen, as to whether or not you accept or reject the evidence of any of the witnesses, I remind you, as I have said, Mr David did not ask you to reject any part of their evidence. Ladies and gentlemen, can I also say something very briefly about expert evidence, because you have heard two experts give evidence in this trial. They were Mr DeLaine, who was a ballistics expert, and Dr James, of course, a pathologist. In this trial, ladies and gentlemen, there is no dispute again about the expert evidence. You may, therefore, if you are satisfied upon the assumptions upon which the experts have based their opinion, be satisfied perhaps to accept their evidence. Again, ladies and gentlemen, in this case there has been no suggestion by Mr David that you ought to reject the evidence of the experts, Mr DeLaine and Dr James. Ladies and gentlemen, can I then say something about circumstantial evidence, because, in a sense, this case depends to an extent upon circumstantial evidence. The Crown ask you to draw inferences adverse to the accused from the evidence of what people saw, from the videotape which you have seen and from what the accused said and from the circumstances surrounding the events. There is no mystery, ladies and gentlemen, about circumstantial evidence. It simply refers to the drawing of particular relevant inferences or conclusions from certain proved facts or circumstances. We do that every day, every day of our lives. All of us draw inferences from facts. In saying that the Crown case depended to an extent upon circumstantial evidence is only to say that instead of having a witness give direct evidence of what happened at a particular time, we have in this case a combination of the evidence of an eye witness, Mrs Rowe, to the extent that she can give evidence, videotapes and photographs. And it is from the combination of all of that evidence, ladies and gentlemen, that the Crown asks you to draw inferences. The amount of circumstantial evidence which will suffice to prove a charge beyond reasonable doubt varies from case to case. The number of circumstances that can be brought forward varies from case to case. But the way you approach circumstantial evidence, ladies and gentlemen, is always the same. The process of reasoning is firstly, you decide upon what facts have been proved to your satisfaction/ ~hat is, as I have said before, beyond reasonable doubt. Then you decide what inferences you can draw from the facts which you have found proved. To do that each item of circumstantial evidence must be carefully examined. When deciding whether you accept whether a particular fact has been established to your satisfaction, you are entitled, of course, to have regard to all of the facts. Then, when considering what inferences you are prepared to draw from those particular facts, you do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone. Instead, you keep that fact and all of the other facts in mind and keep each of the facts in conjunction with each other for the purpose of determining whether an inference can be drawn. In other words, to determine what inferences are appropriate on the evidence, the proper approach is to assess the combined effect of all of the items of evidence of circumstantial evidence that you find the Crown has proved to your satisfaction. Can I give you an example of how circumstantial evidence works in the ordinary day and it is a very simple example. Supposing in your house you have a wood fire and suppose you have a conversation with your spouse, either your husband or your wife, and you ask your husband or your wife, as relevantly ~ 4 is, to make arrangements with the wood yard to have some wood delivered. That is quite a simple proposition, quite a simple conversation. You have no further conversation with your spouse after that time, but, the next thing you notice is that, when you go home one night, there is a tonne of wood outside the back door. Now, the two basic facts are simply that there is a wood fire and secondly, you have had a conversation with your spouse. You can infer from those two facts at least these matters, ladies and gentlemen: Firstly, it is probable that your wife or your husband did speak to someone at the wood yard. Secondly, it is likely that your spouse ordered a tonne of wood. Thirdly, it is likely that the wood merchant loaded the truck and delivered it and brought the wood to your place. And, fourthly, it is likely that he was at your house or he or she was at your house on the day which you came home and found the wood. That is only a simple example of how circumstantial evidence can work, ladies and gentlemen, but you can see that inferences can be drawn from two facts and a number of inferences can so be drawn. However, in relation to circumstantial evidence, ladies and gentlemen, you must approach it this way: A charge will not be proved beyond reasonable doubt, even if you think the Crown case is persuasive, if there remains a reasonable possibility of innocence. If there is some reasonable explanation of the evidence consistent with evidence that has not been convincingly excluded by the Crown, then it must follow that the charge has not been proved beyond reasonable doubt. Ladies and gentlemen, the accused has elected to give no evidence in this case. An accused person is not bound to give evidence. It is a right given to an accused person by law. An accused person can remain silent and see if the prosecution has proved its case. I remind you that the prosecution bears the onus of satisfying you beyond reasonable doubt that the accused is guilty as charged. The accused does not have to prove anything. You cannot infer guilt because an accused person elects not to give evidence. Mr David has reminded you that this is not a trial about gun laws or gun licences. He has reminded you that this is a trial to determine the guilt or innocence of his client in relation to the events of.14 October 1995, and he has reminded you that that guilt or innocence must be determined upon the evidence which is ~ in this court. Can I also remind you, as I have already said, that you must reach your conclusion upon the evidence, and only upon the evidence in this trial. You must put out of your mind any inclination of prejudice about firearms or any feelings of sympathy for either the deceased or the accused. This is not a trial about anything other than the events of 14 October 1995 and your verdict will only be reached upon the evidence admitted in the trial. I now wish to talk about the charges and can I hand to you a document which is entitled ~Memorandum To The Jury'. That is given to you as an aid so as to help you in your deliberations and so as to help you not only in the court but also in the jury room when you retire to consider your verdict. It is not meant to be a substitute for anything I have to say but it is to be read in conjunction with what I now tell you about the law. The two crimes that I will deal with are murder and manslaughter. You will have noted that the accused has only been charged with murder. The information, that is, the document which was read at the commencement of this trial when you were sitting in the jury pool, and before you were empanelled, and to which the accused pleaded, makes no mention of manslaughter, but that is because manslaughter is always an alternative verdict open to the jury in a prosecution for murder. I shall shortly tell you what amounts to murder and what amounts to the alternative charge of manslaughter and how manslaughter might arise. In fact, in this trial, both murder and manslaughter can arise in more than one way. However, the important thing for you to understand very early, is that there are three possible verdicts in this case: guilty of murder, guilty of manslaughter, or, of course, simply not guilty. In due course you will be asked whether you find the accused guilty of murder. If you do so find, you will not be asked to consider manslaughter. However, if you find the accused not guilty of murder, you will then be asked whether you find the accused guilty or not guilty of manslaughter. If no to murder and manslaughter, then of course the accused will be acquitted. In the circumstances of this case, murder could arise in two distinct ways and within each of those two ways again in two particular ways. The first distinct way is this, the accused is guilty of murder if he did a voluntary act by which he killed Dallis Milsom unlawfully in circumstances where he intended either to kill him or to inflict grievous bodily harm upon him. Can I show you the memorandum? You will see in the first paragraph of the memorandum that murder is committed when a person voluntarily and unlawfully kills another while at the same time either intending to kill the deceased or intending to cause grievous bodily harm to the deceased, and that is the circumstance I have just mentioned. The second distinct way that the accused may be guilty of murder, which is alternative to the assertion that the accused intended to cause death or grievous bodily harm, 1 or 2, is that the accused is guilty of murder by killing Mr Milsom unlawfully by firing a pistol knowing that it would probably cause death or grievous bodily harm to Dallis Milsom, and that, ladies and gentlemen, is the item marked 3 in the first paragraph. Can I deal with some of those matters within that definition. It is a basic principle of the criminal law that a person is not guilty of a crime unless the act which would constitute it is done consciously and voluntarily. In most cases it is not in dispute that the admitted actions of the accused were carried out consciously and voluntarily and that is so in this case. That is, there is no dispute about the first of them, the first word underlined in the first line, that the act of firing the pistol was a voluntary one. Assuming the act to be voluntary and assuming it to be unlawful, which is the next word underlined in that first line, the accused would be guilty of murder if any of the following are established beyond reasonable doubt. I will come back to the question of unlawfully but he would be guilty of murder if any of the following are established beyond reasonable doubt: firstly, an intention to kill; secondly, an intention to cause grievous bodily circumstances where the pistol was fired by the accused knowing that it would probably cause death or grievous bodily harm. harm' or in Let me deal with the first of those distinct ways which encompasses 1 and 2 in the first paragraph. Can I explain to you grievous bodily harm. Grievous bodily harm means really serious harm, but what amounts to really serious harm is a matter for the judgment of the jury. If the accused meant to shoot Mr Milsom, whether he intended the shot to be fatal or not, you would be entitled to conclude, ladies and gentlemen, that he intended to cause Dallis Milsom grievous bodily harm, but that is a matter for you in due course. Murder requires intention, as I have mentioned. That is, either an intention to kill or to inflict grievous bodily harm. That is, as I have said, some really serious harm. Intention is not just a word, it is a very serious matter in a criminal trial, and in particular in a trial of murder. There must be an intention to kill or to inflict grievous bodily harm. It is of course the Crown case that the accused had the necessary intention, and I remind you again, of course, it is for the Crown to prove that the accused did intend either to kill or to inflict grievous bodily harm. Intention of course is a state of mind. It is not possible for me or for you to see into a man's mind. Whether or not the Crown has made out an intention on the part of the accused requires you to draw conclusions about the accused's intentions and those conclusions can only be drawn from what he does or from what he says, or in some cases from what he failed to do or from what he failed to say. A person's intention can often be gleaned from what he did and his actions may in many cases speak much louder than words. It is a matter for you in due course whether you find that you are satisfied beyond reasonable doubt that the conclusion that the prosecution ask you to draw, namely that the accused intended to kill, or at least to do really serious harm, has been made out. You ought not to confuse intention with premeditation. Intention does not require careful or even long planning. Intention to do something can be formed instantly. It is not necessary to plan well ahead to shoot a gun. A decision to shoot a gun can still carry with it, even if made immediately, an intention to kill or to cause someone grievous bodily harm. As long as there is an intention to kill or to do grievous bodily harm, that is enough for the crime of murder, even if it was not premeditated and the intention was formed on the spur of the moment. I take you back to the original definition which I have given you in the memorandum, and can I summarise. Assuming the accused acted voluntarily, which as I have said, is not a matter of dispute in this case, murder if he unlawfully, considered, killed Dallis then the accused will be guilty of and that word still has to be Milsom in circumstances where he intended to kill him or intended to cause him grievous bodily harm. Let me then go to the second way in which the accused might be guilty of murder, and that is in accordance with the circumstances mentioned in paragraph numbered 3 in that first paragraph. You will see that that sentence includes the word 'probably.' The word 'probably' is to be contrasted, for the purpose of these directions, with the word 'possibly.' An event or consequence is to be regarded as probable if its happening is, in the circumstances, more likely to occur than not to occur. The conduct of a person who intentionally does an act knowing that death or grievous bodily harm is a probable consequence is regarded by the law as just as blameworthy as the conduct of one who does an act intending to kill or to do grievous bodily harm. If a person does an act knowing that death or grievous bodily harm is a probable consequence, he does the act expecting that death or serious injury will be the probable result. The state of mind is then comparable with an intention to kill or an intention to do grievous bodily harm. But in this second distinct way, that is, in relation to paragraph numbered 3, the accused cannot be found guilty of murder if he knew only that the death or serious injury was a possible consequence. Proof beyond reasonable doubt is required on the part of the Crown of knowledge of the probability of such a consequence. Ladies and gentlemen, can I then move to unlawful and you will see that it is a prerequisite for a finding of murder that the act be both voluntary and unlawful. I have dealt with the question of lawful and unlawful on ~ A killing is not unlawful if the accused was acting in defence of himself or Mrs Rowe, or, alternatively, if the accused was acting to effect or assist in the arrest of an offender. The question as to whether or not the killing was unlawful needs to be considered in this case because of the circumstances of the death and because of the matters raised by the accused in conversations with Constable Roberts and Constable Brennan, and because of all of the surrounding circumstances including the armed robbery, the knife and the pistol, it is necessary for the Crown to exclude as a reasonable possibility that the accused was acting in self-~meme. I have said, in the middle of ~2, when I talk of an unlawful killing, you ought to understand that it is not for the defence to prove the killing was lawful but it is always for the Crown to prove beyond reasonable doubt that the killing was unlawful, and you must understand where the onus of proof lies, as I have already said. Therefore before I turn to self-defence itself I just say again, let me remind you that when I speak of self-defence it is not for the accused to prove that he was acting in self-defence but rather it is for the Crown to disprove that he was acting in self-defence. If there is a reasonable possibility that the accused was acting in self-defence, then the burden is on the Crown to establish that he was not so acting. Self-defence, which is the paragraph numbered 1 on ~-2, would arise, in this case, if you are satisfied that the accused did cause Dallis Milsom's death by shooting him but the Crown has failed to prove that the accused genuinely believed at the time that what he did was necessary and reasonable to defend himself. As I say in paragraph numbered 1 on p.2, if the accused was acting in defence of himself or another person, the law says that where an accused causes death using force against another, genuinely believing that the force is necessary and reasonable for the purpose of defending himself or another person, he is not guilty of murder. If his genuine belief is that force was necessary and reasonable to defend himself, then the law allows the accused to defend himself against any real or threatened or apprehended attack but in defending himself the accused is only entitled to use such force in meeting that situation as he believes to be necessary and reasonable. Can I just explain some of those terms. First of all for a situation to justify some measure of force the accused must genuinely believe that he was under attack, or at least threat of attack. If a person is attacked or is under threat of attack, the law obviously permits the use of force to repel that attack, and then it becomes a question of whether the person who is being attacked genuinely believes that the force is necessary and reasonable to repel the attack. But first of all there has to be a genuine belief that there is an attack or threatened attack and of course you have to assess the evidence on that point. Of course in this case the accused told the police that the attack was by the deceased pointing a gun at him. We now know, of course, as Mr David and Ms Vanstone have both pointed out to you, that the gun was a replica gun, that the accused told the police, and you might find that this is consistent with what Mr De Laine said, that the gun looked like a real weapon. As Mr De Laine said, it looked like a real Smith and Wesson, which as he said is a powerful pistol. If the accused did genuinely believe that he was under attack or threatened attack and he used force to repel that threatened attack, then it becomes a question of whether he genuinely believed that the force which he used was necessary and was reasonable. There is necessarily a distinction between what is necessary and what is reasonable. I need not go into that in any detail, for reasons that I will mention. In the present case, if the accused genuinely believed that he was being attacked or there was a threat of attack, and genuinely believed that the attack was a serious one, and I will come to the evidence on this in due course, then it would be a question of whether he genuinely believed it was necessary to use the degree of force that was actually used in this case. Ladies and gentlemen, I then go to the last paragraph on p.2. You will recall Ms Vanstone, in her address to you, referring to this matter. If you are of the opinion that the Crown has failed to exclude, as a reasonable possibility, that the deceased threatened the accused with a replica firearm and that in those circumstances the accused genuinely believed that the force was necessary and reasonable for the purpose of defending himself or Mrs Rowe, he is not guilty of murder or any other crime. So if you would understand that immediately. It is accepted that if the Crown have not proved that he was not threatened with a replica firearm in the circumstances which he told Mr Brennan, and he genuinely believed that force was necessary to repel that attack, then he is not guilty of murder or any other crime. Let me then move to the second matter on page 3, which is a second way in which a killing is not unlawful. I have described that second way on page 2 as being in circumstances if the accused was acting to effect or assist in the arrest of an offender. It arises, as I have said, in paragraph number 2 on page 3, if you are satisfied that he was not acting in self-defence, that is, if you are satisfied that the Crown has proved beyond reasonable doubt that the accused was not acting to defend himself or Mrs Rowe, then the accused may still be not guilty of an offence if there is a reasonable possibility - and you will remember what I have said about that - one, that the accused fired the pistol to effect or assist in the arrest of an offender, namely the deceased, and that the accused genuinely believed that the force was necessary and reasonable for that purpose; and, two, that the accused fired the pistol without intending to cause death or without being reckless, in the sense of foreseeing the probability that death would result. -20- In those circumstances the question of whether the killing was unlawful arises again, as I have mentioned, and unless it has been negatived beyond reasonable doubt by the Crown it will operate at least to excuse the accused of murder. As paragraph 2 tells you, this consideration only arises if you are satisfied that the Crown has proved beyond reasonable doubt that the accused was not acting to defend himself. So it only arises as an alternative to the matters on page 2. It arises also, notwithstanding~ that it is neither the Crown case, nor the defence case, that the accused did act to effect or assist in the arrest of an offender. The Crown do not assert that the accused was acting in that way. Nor did the accused say to Mr Brennan or Mr Roberts, in either of the statements he made to those gentlemen, that he was acting for that purpose. However, if you believe it arises on the evidence, if you believe that there is a reasonable possibility that he was so acting, then the onus is upon the Crown to prove that he did not act as set out to effect or assist in the arrest of an offender. There is no doubt that the deceased was an offender. He had committed an armed robbery and so that is not a matter that need further concern you. This consideration only arises, however, in circumstances where the accused fired the pistol, as I have said in (ii) of number 2, where the accused fired the pistol :: -21- without intending to cause death or without being reckless, in the sense of foreseeing the probability that death would result. So it only arises in the circumstances where paragraph (ii) e~ of the first paragraph, that is, where the accused A intended to cause grievous bodily harm, or alternatively, the accused fired the shot knowing that grievous bodily harm would probably be caused. So this aspect of unlawful killing is more restricted than the aspect of a consideration of unlawful killing in the circumstances of self-defence. Ladies and gentlemen, as I point out in the memorandum, and you will see that midway down page 3, again it is for the Crown to prove beyond reasonable doubt that the killing was unlawful. And if they fail to prove beyond reasonable doubt that the killing was unlawful in the sense mentioned in the first part of paragraph 2, that will operate at least to excuse the accused of murder. However, the accused could still be guilty of manslaughter, ~m~, as I have said just over halfway down page 3, if you are satisfied beyond reasonable doubt that, firstly, his belief as to the nature or extent of the necessary force was grossly unreasonable, judged by reference to the circumstances as he believed them, and secondly, ~(~ he acted with criminal negligence. :: -22- So, in contra distinction to the first paragraph on page 2 in relation to unlawful killing, there is a possibility, if you are satisfied beyond reasonable doubt of the matters two-thirds of the way down page 3 of the memorandum on the second pagc, that those matters are proved beyond reasonable doubt, in contra distinction to the first matter, there still could be a verdict of manslaughter. So it is a consideration of this matter which gives rise to the first way in which manslaughter might arise in the circumstances of this case. Ladies and gentlemen, the question whether the force used was grossly unreasonable is a matter for you. You have to decide what is grossly unreasonable. That is not a matter of his belief. That is a matter for your judgment. The accused's belief is a relevant consideration as to the circumstances of events of which you have to judge those matters, but it is your assessment of what is grossly unreasonable that matters in deciding whether the force was grossly unreasonable. If you are satisfied beyond reasonable doubt that the accused's belief as to the nature and extent of the necessary force was not grossly ~n~c~ary ~ac nnt~.~]y unreasonable - then he is not guilty of murder or manslaughter. In other words, if you are of the opinion that the accused's belief formed in the circumstances where the accused judged the circumstances to be that the deceased was unlawfully :: -23- appropriating property and fleeing after an armed robbery was not grossly unreasonable, then the accused would not be guilty of manslaughter. But if, on the other hand, you believe that his belief as to the nature or extent of the necessary force was grossly unreasonable, then you still have to decide whether he acted with criminal negligence. So there is still a further stage you must reach before you could find him guilty of manslaughter. Can I explain to you criminal negligence. All of us, in our lives, engage in activity which might cause harm to somebody else, and all of us are under an obligation to exercise reasonable care to avoid causing harm to other people. If you go out on the roadway and you use your motor car in circumstances which could cause harm to other people, you have been guilty of a breach of reasonable care. The law imposes a duty upon you to act in circumstances where you display reasonable care to other people. Generally, of course, negligence is a matter which simply results in civil remedies, an action for damages, if there is negligence which cause damages, but sometimes there are summary penalties, as we call them, fines and the like, for negligence. Some road traffic offences, drive without due care and so on, are offences of negligence for which fines are imposed. :: -24- But that is not what the law means by criminal negligence. There is a point at which a failure to exercise that care which we are all bound to exercise to prevent harm to others is so grave that we can say it goes beyond a mere matter of compensation and a fine in the traffic court. It is really a criminal offence. It is so grave that it deserves to be punished by the sanctions of the criminal law. That is a judgment that a jury has to make. First of all, whether there has been negligence, a failure to exercise that care for the safety of others which we are all bound to exercise; and then, secondly, whether that failure is so serious, so grave, that it should be punished by the criminal law, in this case by a verdict of manslaughter. Can I put it to you this way: criminal negligence arises when the act which caused the death was done by the accused consciously and voluntarily without any intention of causing death or grievous bodily harm, but in circumstances which involve such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merits criminal punishment. That is an extended definition of what I have written at the bottom of page 3, where I have written 'Criminal negligence means that when an act falls so far below the standard of care which a reasonable person would have exercised, and which'involves such :: -25- a high risk that death or serious serious bodily harm would follow, then that merits criminal punishment. So if you find it proved beyond reasonable doubt that his belief as to the nature or extent of the necessary force was grossly unreasonable, then you have to ask yourself, as I have said on page 3, whether it has been proved beyond reasonable doubt it is criminal negligence in the sense which I have described it. Could I remind you once again that the onus of proof in relation to self-defence is upon'the prosecution, and that means that if you have a reasonable doubt about any of those matters, then that doubt must be resolved in favour of the accused. Let me now turn to manslaughter, which is page 4 of the memorandum. Manslaughter is, as the first line says, the unlawful killing of one person by another in circumstances which do not amount to murder. In the circumstances of this case, as I say, the issue of manslaughter may arise in two ways. The first of these is in circumstance 2, which I have just addressed. That should be, in the circumstance 2 ~situation of unlawful killing~- If you would be good enough to change the words, if you have a pen. :: -26- Can I read to you paragraph 1. 'The first of these is in ~ circumstance 2, situation of unlawful killing'. I have been through that and there is no need for me to repeat it. ~s The second way in which a person is guilty of manslaughter, if, as a result of that person's unlawful and dangerous act, death is caused. And that is the proposition marked number 2, I should say, on page 4 of the memorandum. In this case, that consideration will only arise if the Crown, firstly, has failed to prove any of the states of mind necessary for murder. The states of mind, if I can take you back to the first page, are items 1, 2 and 3. The first appearing, that is, in the first paragraph. That is what I mean by the states of mind. So this aspect of manslaughter can only arise if the Crown has failed to prove beyond reasonable doubt an intention to kill, or intention to cause grievous bodily harm, or has failed to prove that the accused acted knowing that death or grievous bodily harm would probably be caused to the deceased. And it only arises in the second circumstance that the Crown has proved beyond reasonable doubt that the killing was unlawful. So only in the circumstances if it has been proved to your satisfaction, that is beyond reasonable doubt, that the killing was unlawful and the Crown has discharged the burden which lies upon it in that respect. :: -27- Manslaughter by an unlawful and dangerous act can arise in these circumstances. Firstly, if there is an unlawful act, as I have mentioned on page 4, two-thirds of the way down. The Crown would have to show beyond reasonable doubt that the shot which was fired was unlawful, that is an assault. It is unlawful to fire a gun to put a person in fear unless the firing of the gun is in self-defence. So, as I say, as this aspect of manslaughter only arises in circumstances where the Crown have first proved beyond reasonable doubt that the killing was unlawful, you would first have to establish that the firing of the gun was unlawful. When I say you would have to establish, I mean by that the Crown would have to establish to your satisfaction beyond reasonable doubt that the firing of the gun was unlawful. The next question is whether the act was dangerous. It lies upon the Crown to prove not only was the firing of the gun unlawful, but also, as well, that the act was dangerous. And the law says, as I have pointed out, a dangerous act is one which a reasonable person in the accused's position would have realised that the firing of the appreciable risk of serious injury. dangerous act. That is, an act appreciable risk of serious injury. pistol carried with it an That is a definition of a which carries with it an Ladies and gentlemen, if you are then satisfied that the act was both unlawful and dangerous, then the accused is guilty of manslaughter. But, I repeat again, a consideration of this :: -28- aspect of manslaughter only arises in the circumstances I set out on page 4. Firstly, if the Crown has failed to prove any of the states of mind; and, secondly, the Crown has proved beyond reasonable doubt that the killing was unlawful. I just remind you that the memorandum is an aid and is not a substitute for what I have told you. Can I now turn from matters of the law to the facts. Most of the evidence in this trial was not in dispute. Indeed, a good deal of the evidence was not contested, but I will take you through all of the evidence for the purpose of quickly reminding you of it. Two witnesses were called to tell you something about the accused and the deceased before the incident. Ms Vanstone called Andrew Hodge, who lived at Albert Street and knew the deceased. His evidence was that the deceased came to his house from the Riverland on the Saturday, and left at about 6.15 p.m.. The deceased took with him, or there was absent from his house after the deceased left, a replica pistol which Mr Hodge kept at the house, and a knife. Apparently the deceased left the premises without transport and without money. :: -29- Sergeant Warren, ladies and gentlemen, was called and gave evidence in relation to licences held and firearms owned by the accused prior to this incident. His evidence shows that the accused had a licence with endorsements A, B, C and D upon it. He was therefore licensed to possess handguns and pistols and to carry them in a pistol case. The records also show that Sergeant Warren said that~he was a A member of the South Australian Revolver and Pistol Association and a member of the SSAA Para Range Club. He was also permitted to collect firearms as a collector. He was cross-examined as to the method of obtaining a licence and he said that a licence cannot be obtained for a pistol unless one goes through certain stages. Firstly, the person has to be approved by the police. Secondly, the person has to be the holder of a C class licence. And to obtain such a C class licence one has to obtain an authorisation to purchase a pistol from a club which itself had been approved by the police. And thirdly, the club authorisation has to be taken to the police station for the purpose of obtaining a permit. Ladies and gentlemen, Sergeant Warren told you that his licence showed that an application had been made on 11 August at his request, that is the accused's request, that the endorsement on the licence for club purposes be deleted and that the licence reflect that he held the guns for collection purposes only. Sergeant Warren then itemised a number of firearms owned by the accused, probably about Ladies and gentlemen, you must A understand the purpose for which the evidence of Sergeant Warren can be used. The evidence of Sergeant Warren may only be used for the purpose of showing that the accused had a familiarity with guns, with firearms and, in particular, pistols. The evidence may not be used for any other purpose and, in particular, may not be used for the purpose of inferring from the fact that the accused had a number of guns that he was a person predisposed to use them and, in particular, predisposed to use them in the circumstances which occurred. You must not allow the evidence to be used other than for the purpose for which I have directed you. That is simply to show, and for no other reason, that he had a familiarity with firearms. Moreover, you may not use the evidence in relation to licence5 which he held other than for the purpose of being satisfied that he was as was established in cross-examination, a person who was approved by the police and, in due course, approved by the Sporting Shooters Club, which, in turn, itself was approved by the police. The only other purpose you can use the evidence of his licence is for the fact that he held a licence over a number of years, also demonstrating perhaps a familiarity with firearms and, in particular, pistols. You may not use the evidence, and I direct you accordingly, for the purpose of reasoning that perhaps he was in breach of a condition of his licence by having the pistol with him on the night of 14 October 1995. It is a matter entirely irrelevant to your considerations whether he was in breach of any licence condition or in breach of any Firearms Act. You must put out of your mind any thought that perhaps his being in breach of a permit is a circumstance from which you can infer that he might have committed some other criminal activity. You can Only use the evidence of Sergeant Warren for the purpose for which I have directed you. Can I also then mention, ladies and gentlemen, some of the evidence of the three police officers who were first called. Brian Kay, Constable Van Dijk and William DeLaine were called for the purpose of establishing what I might call the formal matters. You will recall that Constable Kay produced to you Exhibit P1 and Exhibit P1A, the originals of which are drawn to scale, which depicted the area in which the shooting occurred. Those plans have been used by other witnesses for the purpose of describing their role in the incident and where particular articles, which have become exhibits, were found. Constable Kay also gave evidence of the height of various stands and distances between particular objects. Ladies and gentlemen, could I just remind you that the distance between the south-eastern corner - sorry, the distance between the north-eastern corner of the water cooler stand and the north-eastern corner, the area marked'~counter' is 6.5 metres. The length of the display case on the western wall, including that part of the display including water, is 5.85 metres. The height of the chip stand is 1.65 metres. And the other display immediately adjacent to it, 1.17 metres. The height of the Minties' stand is 1.75 metres. And that was Constable DeLaine's evidence. Ladies and gentlemen, of course, you took a view of the premises and I must remind you immediately about two things. - Firstly, the premises are in a different condition now to which they were on 14 October 1995. You will recall that Ms Vanstone identified precisely the differences between the premises as they were then and as they are now. Secondly, may I remind you again that a view is held not for the purpose of taking evidence and the view itself is not evidence in the case. The purpose of a view is to assist you to follow and better understand the evidence of the witnesses. You ought to treat it in that way, ladies and gentlemen, and you ought not to substitute what you saw on the view for any of the evidence that you have heard. The only other matter that I talk about in relation to the plans is you will recall that you were provided also with Exhibit PT, which shows - which Sergeant DeLaine said showed the range of vision of the video camera. P7 appears to be consistent with the range of vision shown in the photographs in Exhibit P12 and in particular photograph 97. Ladies and gentlemen, Constable Van Dijk presented you with a number of photographs, which I will not go through in detail, but those photographs, you have a copy of and they are the photographs in Exhibit P2. Those photographs show the premises as they were on the night. And you ought to have regard to those photographs for 'the purpose of determining exactly how the premises were, having regard to the fact of what you saw on the view were premises slightly different. Sergeant DeLaine also, ladies and gentlemen, produced a number of exhibits. Firstly he showed you the Beretta .25 calibre pistol which was used by the accused in the shooting. Sergeant DeLaine described the Beretta as a less powerful weapon, right down at the bottom of the scale. And he went on to say which you could not compare insofar as power was concerned with a Smith and Wesson. You will recall his evidence, ladies and gentlemen, how he demonstrated to you how the Beretta could be loaded. First the magazine needed to be pushed into the pistol grip until you heard, as he described it, an audible click. Then, provided the safety catch was not on, the gun was ready to fire and because it was a semi-automatic gun, it could be fired thereafter with repeated actions of the trigger. I do not think it is relevant, for the purpose of this case, ladies and gentlemen, his demonstration in relation to the safety catches. Sergeant DeLaine also tested the Beretta for accuracy. He produced, ladies and gentlemen, Exhibits P6 and P6A, which show the results of tests firing at five and 10 metres. You will notice, as his evidence was, the gun was quite accurate over a distance of five metres, which is a distance very similar to the distance that, in fact, separated - a distance a little shorter than the distance separating the accused and the deceased at the time that the deceased was shot. The other gun, if I might call it that, which he produced was the replica gun. You will recall, ladies and gentlemen, that that was found near the doorway shown in photograph 7 of Exhibit P2. We now know, of course, it is a replica but it is important not to overlook the cross-examination of Mr DeLaine. He was introduced by the Crown as an expert in firearms and you might think was clearly such an expert. He said that this gun, if I can call it that, was a replica of a Smith and Wesson model .39 semi-automatic pistol. He described it as visually realistic and from a distance of five or six metres is a sort of reproduction he said which looks very accurate and is of the same design and approximately the same proportion and size. It is, he said, in the same colour. He said this: 'It would not be identified as being a replica unless from a very close proximity visually.' In particular he was asked this: Five or six metres away you wouldn't have a hope of identifying it as a replica, would you. A. None at all.' He then described the properties of such a pistol and that evidence also ought not to be overlooked, ladies and gentlemen, because it is clear from what he says that the gun was, to use his words, a powerful gun, capable of holding a large number of bullets, probably about 15. It is considerably more powerful than the Beretta which was used by the accused, so he said. The importance of the evidence is that, of course, the Crown claims that the accused had a familiarity with firearms. You may think, therefore, that he was therefore able to recognise that this was the original of the type of gun described by Constable DeLaine. If that is so, of course, he would have known the power of the gun as described by Mr DeLaine. Lastly, ladies and gentlemen, Mr DeLaine produced the knife which has been exhibited as Exhibit P5. Ladies and gentlemen, you have not seen that knife I think outside its plastic so you have not seen the size of that knife. let you have that knife so you may understand the size of the knife. But in due course I will examine it so you can Ladies and gentlemen, the other evidence which is not in dispute is the evidence contained in the video of the events. And that has been produced to you in a number of forms. Of course, the inferences arising from the video are in dispute. However, you have seen the video showing what is a speeded up version of the events, then a real time copy of the video, a real time copy of the video in close-up and lastly a real time copy of the video with audio. The last allows you to hear the sound of a gun and of the scream that was apparently made by Mrs Rowe. You have also been given a set of photographs which are contained in Exhibit P12, and there are 98 in number of those. You will recall that there is an agreed fact in relation to those photographs and also, of course, the video. The agreed fact is that it is agreed that the pistol shot sound occurred within a second labelled 21.13.07. That is seven.seconds, 13 minutes past nine and the photograph in which it is agreed that the pistol shot sounds is photograph number,I have mentioned on a number of occasions, ladies and gentlemen, matters of agreed facts. Can I just simply mention again that evidence can come to the court in a number of ways, oral evidence, documentary evidence, photographs and it is for the jury to evaluate all of the evidence. It is quite common that evidence comes in a criminal trial by way of an agreed fact and when it does, then the jury must treat that fact as having been agreed and must treat it as having been proved beyond reasonable doubt. And will you please treat each of the admissions that Ms Vanstone read to you as being in that category. That, I think, deals, ladies and gentlemen, with all of the formal matters of which there is really no dispute. Can I then turn to the more relevant witnesses, if I can describe them that way. I will repeat some of their evidence, but not all of it. But again, I ask you not to conclude from my not having mentioned some of the evidence that it is unimportant and not to conclude from my having mentioned some of the evidence that it is more important than some other evidence. The evidence of Mrs Rowe shows that, the evening of 14 October, the accused arrived at the Caltex Service Station at about shortly before 9 o'clock. And that he made himself a cup of coffee and sat at a point identified as being in the doorway to the office, immediately east of the area marked ~staff' in Exhibit P1. The accused was well known to Mrs Rowe. He usually came every night and parked his tow truck, so she said, on the southern side of the premises, which would be at the bottom of Exhibit P1A. He usually came later than 9 o'clock but was early on this occasion. Business was slow on this night. There was probably a customer once every 10 minutes, so Mrs Rowe said. She was sitting at the north-eastern corner within the area marked 'staff' talking to the accused, when, sometime after 9 o'clock, the deceased, the robber, entered the store. Exhibit P12, ladies and gentlemen, the photographs, would suggest that the entry was at about 9.12.34. But, as Ms Vanstone has said, she does not maintain, the Crown does not maintain that the starting time shown on the photographs is right. Although you will remember it is an agreed fact that the time sequence between the first and last photograph and, indeed, the time sequence on the video is correct. It does not matter much exactly what time it was, you might find, ladies and gentlemen, that is a matter for you, exactly when it was that the deceased entered the premises, but it was probably nearer 10 past nine or 12 minutes past nine. It is an agreed fact, ladies and gentlemen, you will remember that Mrs Rowe's subsequent telephone call, that is after the shooting, for an ambulance, was logged probably you could expect at the right time, at 9.13 p.m. and that is agreed fact number 5. So it is probable, you might conclude, ladies and gentlemen, but it is a matter for you, that the shooting occurred sometime before, sometime almost immediately before 9.13. Mrs Rowe's evidence is that the deceased quickly approached the area marked 'staff' and said to her 'Put the money in the bag'. She saw a man standing across the counter holding a knife. Me had a hat on, he was not disguised. She can remember that the blade of the knife was up either one way or the other and he pointed the blade towards her and said 'I mean it'. She said that the robber appeared calm and spoke with a quiet voice. At that stage she turned away from him, as she was obliged to do to work the till in response to his request. She said that she took sometime as she tried to press the 'no sale' button and during all of that time she was facing away from him. She did not see or hear anything while she was searching for the button to the till. She said he was just standing there, as far as she could recall, but she was aware of him being there. She described the knife as a very big bladed knife and, ladies and gentlemen, you might, as I have said, look at Exhibit P5 to satisfy yourself about that. She said that whilst the deceased was standing in front of her she was conscious of the size of the knife and remembered thinking that 'It would go straight through me, the blade will come out the back of me if he throws it'. She took the money out of the till and put three $50 notes in the bag. She was aware, during this time, that the accused was present. After giving the deceased the bag, she said he turned to walk out, without saying anything further that she can remember. She said he walked quite quickly. As he went towards the door, she turned to phone the police. She said that she tried to ring the number once or twice and, while she was doing that, she heard a shot and then heard a scream. She realised that it was she who was screaming. She was asked this, Before you heard that shot were you conscious of Kingsley moving from his position in the chair· I was conscious of him being there. I can remember sort of feeling thankful that he was there because he would be able to help me identify the person.' Specifically she said she was not aware of him moving, that is, the accused, in any particular way. Ladies and gentlemen, of course you have seen the photographs and you have watched the video· You can reach a conclusion easily enough as to whether the accused did move and whether he moved more than once. You might reach the conclusion that he stood up, that he moved forward and then he turned his back to the right. And you might think, therefore, that Mrs Rowe has missed all of the accused's movements in that respect, but of course that is not meant to be critical of Mrs Rowe. She was a most unwilling actor in what was a terrifying situation· But it is a matter for you whether you conclude that that perhaps demonstrates that either she doesn't have a complete memory of the events or alternatively, her observations were faulty due, no doubt, ladies and gentlemen, to the fact that she was under extreme stress by reason of the circumstances. She said that after hearing a shot and her scream she looked back at the counter and the next thing she saw was that the deceased was in front of her again~