Queen v Woods [1966] PGSC 24 (21 September 1966)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

CORAM: MINOGUE, J.

THE QUEEN

v.

JOHN HENRY WOODS

JUDGMENT

13^th -16^th
20^th – 21^st
September 1966.

In this case the accused stands charged before me that on the 23^rd of June, he willfully murdered one David Lockie Mansted.

That Mansted died almost instantaneously from the effects of a cartridge fixed from a shotgun by the accused at approximately 2.55 a.m. on 23^rd June last, is beyond doubt and has never been contested. The real issue is whether the shot was fired with intent by the accused if so with what intent.

The events leading up to the shooting are a mixture of the cordial and the pathetic and it is necessary that I should say something about the main characters involved in this tragedy before attempting to analyse the circumstances of the shooting itself.

Koya Veronica Mosaman is a girl of 22 who came to the Territory from Sydney in January of this year. I know little of her background save that she had an association with the deceased Mansted extending over some three years in Sydney. The relationship was in my view primarily a sexual one and as she put it she found him "good fun". She was employed in Port Moresby as a stenographer by Burns Philp (N.G.) Limited and lived at the single women's living quarters provided by that company in Douglas Street Port Moresby and knows as Burnfels. Each set of quarters consisted of a bedroom and a small kitchenette and there was a common toilet block. My impression of this witness is that she had and has no moral sense whatever and that her main object in life is to have a good time. As the accused put it she wanted to lead a "fly by night" existence and it is clear that she cared not with whom she bedded in order to achieve this sort of life. In some ways she is a pathetic figure because I formed the view that after her association with the accused began, he struck a spark in the better side of her nature and had it not been for the advent of Mansted she might have had a chance to make something of her life. I am far from saying that she was an alcoholic but it is clear to me that she drank too much for a girl of her age and that her fondness for liquor is probably a symptom of a basic instability and insecurity in her make-up.

Understandably I know nothing of the deceased man Mansted other than the picture which has emerged in the reference to him in the course of the evidence – a picture built up by remarks made about him by both the witness Mosaman and the accused himself, both of whom I found to be essentially truthful witnesses. That picture is not a pleasant one. At least during some part of his association with the witness Mosaman in Sydney he was married and he still was at the time of his death. He was a pugilist described by Mosaman to the accused as being "punch drunk", a doorman or, again as described by Mosaman to the accused, a "bouncer" at a night club known as the Topless A-Go-Go in or in the vicinity of Kings Cross in Sydney. He was also a Rugby League footballer of some competence and had been brought to the Territory by some of the Rugby League authorities in Papua.

Prior to his coming up he had written to the witness Mosaman asking her to resume their association on his arrival. I do not think I would be wrong in describing him as an amoral hedonist of poor intellectual capacity.

I come now to the accused himself. He is a young man in his twenty-fifth year who obviously has had a good home environment and upbringing. His record in life before coming to this Territory has bean exemplary. He had achieved his Leaving Certificate in New south Wales, passed his apprentice's course with honours, was highly thought of by his employers and carries a very good testimonial from the regimental sergeant-major of the Citizen Military Force Commando Unit to which he formerly belonged. The witness Mosaman thought of him as emotional with an underlying seriousness yet withal a happy-go-lucky person. His immediate superior at Burns Philp regarded him as a first class workman and of excellent character. During the course of his evidence before me he impressed me as utterly truthful, articulate and yet with a simple side to his character bordaring on time naive. I can well understand his affording the witness Mosaman what she described as a sense of security, which she so obviously lacked in her other associations and relationships. The pity of it is that he lacked sufficient experience of life, and particularly of some of the harsher and more sordid aspects of life which are to be found concentrated in this town of Port Moresby, to deal with a situation with which he was by natural, upbringing and training unfit to cope. That he should have slid into the easy amoral atmosphere which is characteristic of many aspects of life here is understandable. In my view it was his innate decency which led him is seek to convert this association which I am sure was entirely sexual in its inception into a lasting and valid relationship.

It is necessary now that I should enter in rather more detail into the situation existing a few days before the shooting of Mansted and into the evidence leading up to that shooting and of the shooting itself. Prior to Mansted's arrival the relationship between the accused and Mosaman had been, whilst uneasy, generally a happy one. He was clearly infatuated with her and whilst I think she had a real regard for him her feelings were certainly not of the intensity of his. He had showered gifts and presents on her both for the home which he hoped to set up and for her personal use and adornment.

There had been one occasion on which she had expressed a wish to go out with a footballer friend of the accused and this had led to a separation of some five days duration but after constant importunity on his part she agreed as he put it to take him back. In the statement which he made (Exhibit "U") and to which I shall refer later he states that on this occasion he asked her what would happen to her and whether she would go back to her old life of drowning herself in a bottle, which he thought must have worried her because it was in consequence of the conversation which they then had that she agreed to come back. It seems probable that it was at or about this time that she gave up drinking for a month and seemed quite happy in her relationship with the accused and that they then began planning seriously for the home and children which it was his strong desire to have.

At some time in May the deceased man Mansted had written to Mosaman asking her to resume the relationship which had existed between them in Sydney. She discussed with the accused this letter and also her reply which in substance told Mansted that she wanted to have nothing to do with him, At or about this time she wrote to her mother and received advice in reply that if Mansted came near her she should go to the police as he was a pretty tough character. Both she and the accused expressed the view that this was rather too drastic a step to take.

The association between Mosaman and the accused with its ups and downs was undoubtedly upsetting him because he begun suffering from nervousness and sleeplessness and on 8^th June he consulted Dr. Jacobi complaining of this sleeplessness and of anxiety and depression. The doctor did not enquire into the causes of his symptoms but prescribed a sedative and anti-depression tablets for him. The former he took for a few days but as in his view they did not seem to be having any effect he gave them up.

Mansted appears to have arrived in Port Moresby on Tuesday the 14^th of June. On the morning of his arrival he called on Mosaman at her place of employment and asked her to go out with him. She told him that she would meet him after work and have a drink with him and then went as was her went to the accused's place of residence for lunch. At or about this time he was lavishing special attention on her. She would have lunch with him every day and he was taking her out practically every night in the week. At lunch on the Tuesday she informed the accused of Mansted's arrival and I think probably of his invitation to her to go out with him. That evening after she had finished work she did have some drinks with Mansted at one of the hotels but was at her quarters by about 6 p.m. when the accused called to see her. According to both of them she threw her arms around his neck immediately on his arrival and stated how glad she was to see him and that she knew now that she loved the accused and only liked Mansted. The accused who was surprised at this spontaneous gesture of affection asked her if she had been drinking to which she replied that she had had a couple of drinks with Mansted and she asked the accused was he annoyed with her. He replied that in the light of what she had just told him he was not. There the matter rested until Sunday the 19^th, the accused and Mosaman seeing each other daily and she going to his bedroom, as again was usual, on the Saturday to spend the weekend with him. Apparently the accused was still in a state of extreme emotional disturbance because on the Saturday he was taken to task by both the electrical inspector and his superior, Mr. Weldon, for the state of some electrical wiring which he had carried out in a fashion which could not be expected even of an inexperienced apprentice.

On the Sunday Mosaman went to a football match with some of the accused's friends and there, I would think by chance, met and sat immediately behind Mansted. The accused who had to work on that day arrived late at the football, joined Mosaman, kissed her in greeting and sat beside her whereupon Mansted moved away. Mosaman showed some reluctance to come home to eat with him, he coming to the conclusion that she would prefer to stay in Mansted's company. However, come with him she did and later they returned to the club rooms at the football ground where the accused joined his friends and joined in some singing during which Mosaman and Mansted were talking together in a corner for about half an hour. At a later stage the accused and Mosaman went to a dance at another club, the Avist Club, and on the way she asked him would he have any objection to her dancing with Mansted to which he replied that he would not. They did dance together that evening after which Mansted went off and the accused and Mosaman went home to his bedroom where, as he put it, she relaxed completely and became drunk. She apparently had been drinking fairly considerably during the afternoon and evening. He was angry with her and helped undress and put her to bed. The following morning he observed that she was still suffering from the effects of liquor and he drove her to her place of employment and again at lunch hour picked her up. I think she was still at this stage suffering somewhat from the effects of liquor and was probably in a sulky mood. She brought up the subject of Mansted saying, "I hope he doesn't ring me up again" upon which the accused enquired whether if he did she would go out with him. She replied that she would and the accused in his turn said that "In that case it is no use us getting together if you want to go out with other men. You are a cruel bitch". Silence descended upon them and he drove her back to the Burns Philp Store. As she was getting out of his utility apparently she said that she did not mean to be cruel but that accused drove off.

That night he was extremely upset and sought companions to get drunk with him, a naïve indeed stupid but perhaps understandable attitude in the circumstances. I should add that the accused had not drunk alcoholic liquor before coming to Port Moresby and even after his arrival was only an occasional drinker. It is unnecessary to pursue his alcoholic saga but I am satisfied that he became very drunk and for the whole of Tuesday the 21^st June he was lying in bed very sick indeed, unable to eat and with thoughts of the girl gnawing at his mind and obsessing him. On Wednesday the 22^nd he returned to work still I am convinced feeling sick and unable to concentrate on anything except the situation between himself and the girl. Despite his experience of the past two days he again that evening sought the company of someone to get drunk with him but unsuccessfully, and agreed to go with some friends to a picture theatre. By the gravest of misfortunes the car in which they travelled was parked in Douglas Street in which was situated Burnfels and only a short distance from it.

In the meantime on that night Mosaman had been out drinking with Mansted at the Badili Tavern until about 10 o'clock and thereafter at some friend's place. Mansted was driving Dr. Jacobi's car which has been lent to him and the two of them returned to Burnfels at about 11 p.m. on arrival Mansted parked the car outside, they retired to her bedroom and put the light on leaving the door into the corridor open. The corridor runs along the front of the building and on the street side of the corridor there are open upright louvers. From the street it is possible to see the door or doorway and to know that a light is on in the bedroom. The accused and his friends drove past Burnfels on their way home from the pictures at about 11.30 or 11.45 p.m., and the accused seeing the car which he knew to be Dr. Jacobi's and which he guessed to be driven by Mansted, immediately came to the correct conclusion that Mansted and the girl were in her room. He was driven back to his own quarters at Bedili and I am satisfied that at the time of his arrival it was his intention to go to bed and sleep if possible.

He followed his usual practice of letting his dog off the chain and undressed in preparation for bed. I have no doubt that at this time he was almost beside himself with a tumult of anxiety and fear that he had lost the girl for ever. He had had a completely sleepless night on the Monday and although he had dozed off on the Tuesday night I feel that overall he had had very little sleep. Earlier on the Wednesday evening he had obtained four sleeping tablets from a friend of his – one Egan. Before getting into bed that night he took these four tablets together with either three or four of those which had been earlier prescribed for him by Dr. Jacobi. All I need say at this point is that this was quite a strong dosage of sedatives but in the condition in which the accused then was they failed to take effect. He tossed and turned on his bed but sleep would not come.

In his room was a Remington pump action single barreled 12 gauge repeating shotgun. This gun he had owned since 1961 and it had been sent up to him by his mother at his request on the earlier occasion when a rift had taken place between himself and Mosaman over the man Savilla. He told me and I believe him that his intention if the break was permanent was to join the local gun club and immerse himself in its activities. As he was tossing in his bed his eye lit on the shotgun and the idea came to him that he would take it and in some unformulated way attempt to scare Mansted away from his girl. I have little doubt that in the state he was in at the time he had no clear idea of just how he would go about this. He got out of bed, dressed, took four cartridges out of a previously unopened full packet of cartridges which he had in his room, loaded them into the magazine of the gun, went out of his utility and drove to Douglas Street bringing his vehicle to rest on the side of the street opposite Burnfels and in a position where he could observe Mosaman's room.

There was some slight conflict of evidence at this point but I am inclined to think that at the time of his arrival the door of the bedroom was still open and both the light in the bedroom itself and in the adjoining small kitchenette were on. After about half an hour Mansted came out of the bedroom door and began to walk along the corridor. The accused thought that he was leaving and left his utility and walked across the road leaving the gun behind. Upon being asked for his reason for doing this his reply was that he thought he was scared at the time and that he would confront Mansted and see what he could do without the gun. He was scared of the fact that he had a loaded gun beside him.

However he was disappointed in his expectation whatever it was because Mansted went to the toilet block which was in the middle of the building and was followed thereto by the girl. They both then returned to her bedroom. A little while later they both again went to the toilet. On each of these occasions the girl was wearing a pair of slacks and a blouse top. On returning after the second visit to the toilet the girl closed the bedroom door and the accused thought he noticed the light dimmed. He assumed, I believe correctly, that the light in the bedroom had been switched off. It is obvious of course that at or about this time intercourse took place between the two in the bedroom, a fact which was admitted in evidence by the girl. About three quarters of an hour later the girl again went to the toilet as the accused observed wearing a housecoat. As he himself stated he had no doubt that intercourse had taken place.

At or about this time the tablets which he had taken were beginning to have some effect because he was becoming very drowsy and his eyes were closing but he was resisting sleep. About half an hour after the girl had returned on the last occasion to her bedroom Mansted came out carrying something in his hands. This time the accused left his utility taking the shotgun with him and crossed the road. He held the shotgun in what he described as the normal carrying position, that is across the body with the barrel point slightly downwards and to his left. As he reached the footpath in the front of the door of Burnfels Mansted came out and closed the door behind him, holding in his left hand a pair of shoes and socks.

Immediately he saw the accused he said, "Put that gun down" and then bent over to place the shoes and socks on a small retaining wall. He then stood up and took a step towards the accused. The accused swung the gun around pointing it at him and told him to stop where he was. He then said, "You are taking the only think I have ever loved away from me." Mansted replied "No I'm not, mate. I don't love her. I only love my wife", and went on to say that if the accused got into the car with him he would take him to Dr. Jacobi's place and show him the loving letters which his wife wrote to him. To this the accused replied, "You're a liar. I have seen the letter which you wrote to Koya". As the accused put it this "stumped" Mansted as in his (the accused's) view Mansted could not have known that the accused had read the letter written to the girl sometime previously in which Mansted had said that he was not getting on with his wife. There was a momentary silence and according to the accused he came to the realization that he could not achieve anything, that Mansted was not scared of him and the only thing for him to do was to go home. He became acutely conscious in this silence of his knees shaking from what he thought to be excitement or nervousness. In the next second or the next instant the gun went off and Mansted fall to the ground with a wound in the neck.

The accused strenuously denied any intention to shoot or cause physical harm to Mansted and was positive that he had no conscious recollection of pulling or of his finger squeezing on the trigger, nor had e any recollection of actually loading the cartridge into the breach of the gun although he knew that he must at some time have done this. He was of the view, so he told me, that although he might well have been able to beat Mansted in physical combat he did not think that would scare him and he had some confused idea that if he were to fire a few shots in the vicinity of Mansted that would cause Mansted to think that he was a little mad and that he would be well advised to keep away from the girl. He told me that his anger was directed mainly at the girl. Although he was annoyed at Mansted he had no particular anger towards him because in effect he knew that knew that he was the sort of man who would take his pleasure where he found it without any deeper feelings being involved.

According to the evidence of Inspector Myles, whom I am satisfied is very experienced in this field, the shot was fired from a distance of about two feet. The accused was positive that he was no closer than three to four feet from Mansted when the gun went off but I do not think this discrepancy really matters. The contents of the cartridge entered Mansted's neck just above the sterno-clavicular joint and slightly to the left f the centre line, ruptured the common carotid artery, severed the spinal cord about the sixth cervical vertebrae. According to Dr. Cooke who carried out the post mortem the path of the shot seemed to take quite a slightly downward course because he had put a probe into what he thought to be the main axis of the wound and this indicated such a course. However he had not made any scientific measurements. The accused was quite positive that after Mansted had taken a step towards him and he had pointed the shotgun at him and told him to stop where he was Mansted did not move. That involves of course the inference that Mansted did not attempt in any way to attack the accused in response to a question by me the accused stated this to be the position.

After the accused saw Mansted fall as he put it he thought the world was finished for him. He dropped the butt of his gun to the ground with the muzzle underneath his chin and pulled the trigger but the gun did not fire. He then realised that he had not worked the action of the gun so as to insert a new cartridge into the chamber and curiously enough described his reaction to this as being one of anger. He lifted the gun and worked the action at the same time singing out in a loud voice, "Koya you are a slut". This remark I should add was heard by the girl who was then sitting on her bed in her bedroom. He then dropped the gun butt to the ground again with the muzzle in the same position, pulled the trigger and attempted to blew his head off. The blast threw him backwards on to the ground, he found that he could not breath and that he was choking and thought he was dying. He rolled over, found that he could breathe more easily and with some idea of being able to help Mansted he started to walk, bleeding heavily, to the Police Station. He had inflicted a very serious would on the left side of his face. Subsequently he collapsed and was taken to hospital where a major operation was performed on him and he survives today albeit with a good part of his face missing.

He was placed under heavy sedation at the hospital after the operation and at about 8 o'clock on the morning of the 24^th was seen by Inspector McGrath who was in charge of the police investigations. He had earlier been seen by his mother for about an hour and although he could not speak his constant enquiry was as to whether Mansted was dead. On the arrival of the police inspector in the room where he was the Inspector told him that Mansted was dead and asked him would he like to tell them (the police officers) anything about the matter. He nodded in the affirmative and then unprompted wrote out in his own handwriting the document (Exhibit "U") to which earlier objection was taken and which I decided to admit. This consists of just over eight pages of handwriting on a small note pad and gives a fairly consistent though by no means full version of his association with the girl Mosaman and of the events leading up to the shooting. Towards the end of the statement he wrote, "He would have been all right only that he kept saying that he didn't love Koya but that he loved his wife. I shot him then yelled out that she was a slut and put the gun under my chin thinking that I'd blow my brains because it was the most horrible thing that I have ever seen."

I have set out perhaps at inordinate length the circumstances leading up to and surrounding the shooting. However before proceeding to enquire into the intent of the accused there is one further aspect upon which I must enter in a little detail. I have said that before getting into bed at about midnight the accused swallowed three or four tablets prescribed for him by Dr. Jacobi and four tablets given to him by his friend Egan. The former were Doriden tablets. Their main action is that of a central nervous system depressant and their usual effects are sedition and the induction of sleep. The usual night dose is one to two tablets taken about a quarter of an hour before the taker retires. Three to four tablets is a moderately large dose. Doriden may have other effects. Some of the common side effects are dizziness, grogginess, confusion and rarely ateaic (i.e. loss of proper control over neuro-muscular co-ordination). Doriden can occasionally cause excitement rather than its usual effect which is sedative.

The tablets given to the accused by Egan were a preparation known as Stemetil or more properly Prochlorperazine which is a phenothiazine derivative. This is a central nervous system depressant and in addition it enhances or potententiates other nervous system depressants such as Doriden. As Dr. Zylster said that I am satisfied that he is expert and learned in this field, it is usual with this preparation to start the patient with as small a dose as possible and gradually to increase the dosage until the desired effect is obtained. The usual starting dose would be one or two 5 milligram tablets (which these tablets were) three times a day giving a total of 15 to 30 milligrams daily. With these tablets the side effects are a significant factor to keep in mind. These side effects may be dizziness, tachycardia (rapid heart rate) and dry mouth. Occasionally the patient will develop hyper-activity, agitation and also it is possible that inco-ordination of the nerves and muscles will result. There may be tremor or trembling and sometimes involuntary movements of the body which are sometimes as gross that qualified doctors have occasionally mistaken them for indications of serious conditions such as tetanus. In some cases of involuntary movements the person may appear fidgety, the fidgety movements concealing to some extent their involuntariness. Dr. Zylstre has seen gross involuntary movements where only two tablets have been taken. For an initial dosage he would regard four tablets as unusual and large and of course likely to increase the probability of side effects. Of course the normal reaction is one of sedition but if that reaction is not achieved it is possible that the side effects will supervene. In the doctor's opinion there was a real possibility that the accused was suffering from the abnormal side effects of the drugs the more so as the real possibility existed of the Stemetil tablets enhancing the effect of the Doriden. However the doctor went on to say that it was recognized that side effects only occurred in less than 3 per cent of the takers of Prochlorperazine. In a year's experience working with an eminent neurologist at the Royal Prince Alfred Hospital in Sydney he had seen only seven cases of muscular inco-ordination attributable to Stemetil and whilst there was a real possibility that the drug had affected the accused's movements on that night so that the pulling of or pressing the trigger could have been involuntary, he did not regard this as a likely probability.

A further question arose too as to the document written by the accused in hospital between about 8 o'clock and 9.30 on the morning of the 24^th of June. At this time the accused was under heavy sedation having been given 200 milligrams of sodium phenobarb injected intramuscularly at 2 a.m. on that morning and a further injection of 15 milligrams of morphis at 7 a.m. As Mr. Reade his surgeon said the former would be expected to last for about twelve hours the latter for about four, reaching its maximum effectiveness at about 8 a.m. which was approximately the time at which the accused began to write. I take the view that the accused was probably in a sedated or perhaps confused and certainly an emotional state when he wrote this document. His prime concern appears to have been the fate of Mansted and a desire as well as he was able to explain what had happened and how it had happened. I would not be inclined to place any great reliance on its complete accuracy although certainly it does appear on the whole to be chronologically consistent. I have no writing of the accused with which I can compare the handwriting. There are several mistakes in spelling and some instances of a hurriedness of thought, which to me indicates that the accused was anxious to get something down as quickly as he could without going into too much bothering detail. The horror of what had happened was no doubt strongly present in his mind and when he said Mansted would have been alright only that he kept saying that he did not love Koya but that he loved his wife, it does not necessarily follow that he was expressing the formation of an intention to shoot him. It seems equally possible that he was elliptically trying to say that he subsequently said in the witness box. But I will come back to this in a little more detail later.

It is clear beyond doubt that a cartridge fired by the accused from his gun, the muzzle of which was held two to three feet from Mansted's body, entered his neck at the place I have described earlier and killed him almost instantly. I ought to say at this point that I am quite at a loss to explain how with the gun being held in that position described by the accused and with both men standing in the positions in which he is quite clear they were, the charge could enter the deceased's neck in the position which it did and how it could travel slightly downwards, if that is in fact what it did. I find myself in this difficulty. I regard the accused as a witness of truth as far as his observation goes. I think he has tried to tell me fairly and in as much detail as he can recollect what happened. He is the only living eye witness of what did happen. I would have been easy for him to construct a simple story in which the deceased man would appear to be the aggressor and such a simple story would have been hard to upset. But the accused's recollection does not square with the wound on the deceased. I will return to this in describing what I conceive to be the real situation and the accused's motive and actions.

The first crucial question of course is, am I satisfied beyond reasonable doubt that the accused killed Mansted intending to cause his death? If I am I must find him guilty of willful murder. No question of self-defence or of provocation had been raised nor do I think it could be raised on the evidence.

If I am not so satisfied I must then consider whether the accused killed Mansted intending to cause him some grievous bodily harm in which case he would be guilty of murder. Mr. Croft informed me in his final address that he did not rely on Section 302 (2) of the Criminal Code. This sub-section enacts that if a person unlawfully kills another, in such circumstances that if death is caused by an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, that person is guilty of murder. The matter was not argued but in the light of what was said by the High Court in Hughes v. R. [1951] HCA 34; 84 CLR 170 I think Mr. Croft was right in his attitude. It seems to me that this is clearly a case where the dangerous act and the prosecution of the unlawful purpose are inextricably intertwined – in other words that the act itself forms part of the prosecution of the purpose and is not distinct from it as the High Court held that it be in order to attract the criminal responsibility under this section.

Mr. Croft in a careful and concise summing up of the facts submitted that I should firstly find that there was ample evidence of motive. There was every reason for the accused to feel anger, jealousy and hatred of Mansted as they confronted each other outside Burnfels. This was the first occasion in the association between himself and the girl that he had clear and incontestable proof of her having slept with another man during the course of their engagement. Given the motive, of course he had the opportunity and it was clear said Mr. Croft that Mansted's words denoted a man who was scared. He was in fear of the man confronting him with the gun. Further Mr. Croft submitted, and this was indeed a powerful submission, that the accused's own volunteered words in hospital provide the clearest indication that it was Mansted's attitude to the girl which helped the accused to make up his mind that he would shoot him there and then. He asked me to come to the conclusion that it was unreal to ask the Court to accept the accused's version that he had a sudden black-out or that his pulling of the trigger was an involuntary movement. The accused, so he submitted, when he told me that he was unable to recollect cocking the gun or pulling the trigger either consciously was lying or subconsciously has shut these events out of his mind. I have already stated that I regard the accused as a witness of truth doing his best to tell me what happened. It may be that subconsciously some of the horrifying detail has been suppressed. That I am unable to say. But again I remind myself that before I can convict the accused of either willful murder or murder I must be satisfied beyond reasonable doubt that he deliberately and intentionally pulled the trigger of the gun for the purpose of either brining about Mansted's death or occasioning him grievous bodily harm. In the situation that existed in the last and fatal few seconds there can be no question of firing with the intention of frightening the deceased man, nor has there been any attempt to suggest such a case. In the result Mr. Croft urged that there was only one conclusion open namely that the accused deliberately pulled the trigger intending to kill Mansted.

On the other hand Mr. White has referred me to the background and character of the accused and more particularly to the totality of circumstances occurring in the last three days before the shooting. One cannot but help feeling impressed by his background and the character which he displayed to all who came in touch with him. Whatever be the truth his shooting of Mansted was entirely out of character. Mr. White submitted that the accused's chaotic mental and physical state intensified and exacerbated by the alcohol which he had taken and the alcoholic sickness which he had suffered, by the shock of his discovery on his way home from the pictures and by the side effects of the drugs which he had taken, all combine to force me to the conclusion that his act was no deliberate or intentional or willed one.

If I am not satisfied that the pulling or pressing of the trigger was not caused by an involuntary nervous reaction brought about by the effect of the drugs which he had taken or perhaps the effect of those drugs enhanced or supported by the physical state he was in, or perhaps simply by the agitation and nervous state in which he found himself, then I conceive it my duty to find him guilty.

It is very hard to put one's self into the accused's shoes, both as he sat there for hours in his utility and as he stood on the footpath facing the man who had taken or who was about to, as he says, take away the only thing he ever loved. One can well imagine, as he sat there in the truck staring as steadily as his increasingly drowsy state would allow at the door of the room in which his hopes for the future were being alcoholically and casually destroyed, that his mind was in a confusion of fear, anger, frustration and despair with now one and now the other uppermost. His conduct in being there was clearly irrational. He had most the power of reasoned thought or action.

I can imagine that on Mansted emerging from the room on the first occasion, at which time neither the light had been turned off nor the door closed, his thoughts were those of relief. He may have thought that by speaking to Mansted he could reason him out of the continuance of this casual and incontinent relationship. But frustration and despair would soon follow when he realised that the worst in his view was about to happen. I find it difficult if not impossible to imagine let alone come to any conclusion as to what was passing through his mind in the following two hours or so. As far as I can judge he left his truck on the last occasion still without any clear idea in his mind of what he was going to do but determined in some way to frighten Mansted, perhaps indeed to make him look on him as a madman out of whose way he should keep. It seems to me quite out of character that he should at that stage at any rate have formed any intention to kill or shoot him. I think the thought uppermost in his mind would be, "Why can't you leave her alone. She means nothing to you."

My view of the situation is that the account given by the accused was substantially true. I do not agree with Mr. Croft's suggestion that Mansted was shot as he was bending down to put his shoe and socks on the low retaining wall. I think it more probably, although the accused has no recollection of the fact, that after the accused had called him a liar and had himself realised that he could not scare Mansted the latter began to bend to pick up his shoes and socks. I do not doubt that Mansted was still keeping a wary eye on the gun pointing at him. But I do not think that Mansted was frightened. My guess and it can only be a guess is that Mansted felt that he had the measure of the man in front of him and if anything was contemptuous of him. I would think that Mansted himself at this stage felt there was no sense in prolonging discussion with a man who was not going to listen to him and that he was going to break off and go home.

This still leaves of course the crucial question unanswered. Did the accused then suffer from an access of rage or hatred and consciously and deliberately pull the trigger? Or rather am I satisfied beyond reasonable doubt that he did? Or on the other hand, was his pressure on the trigger completely involuntary. I might say that I accept the accused's story that at that moment he was acutely conscious of his knees shaking.

From my own experience (and in my capacity of jury I am entitled to take this into account) I would say that if that were so he was also trembling in all parts of his body, whether from fear, excitement, nervousness or the effects of the drugs which he had taken I am unable to say. And for a man in such a state I find it easy to accept that the trigger of the gun could be unwittingly proceed. I have tried the trigger pressure myself and this confirms my view. As the doctor said there was a real though remote possibility that the Stemetil in particular caused the involuntary movement although the statistical probabilities were against this theory. But can I reject the possibility that this was a cause or that there was a combination of causes playing upon him, or that the cause might have been solely his over-whelming nervous excitement and agitation? I do not think that I can. The immediate shock and horror of what he had done, his almost involuntary exclamation, "Koya you are a slut", which to me gives some indication of the girl and not the man being uppermost in his mind, his almost immediate attempt to seek help for Mansted, all give me cause for what I consider to be a real and substantial doubt as to his intention to kill or do grievous bodily harm at the moment of the shot being fire. Indeed although with some hesitation I have eventually come to the view that he had no such intention. I am fully conscious of the statement made in hospital but I have said earlier this seems to me consistent with the accused's thinking more of the occasion for his having stood there with the gun pointing at the deceased than of any intention or lack of intention he may have had in mind. The enormity of what he had done must of course have been uppermost in his thoughts. And of course I cannot feel that he would have been at that time in any condition to bring a clear and rational mind to bear on the composition of his narrative.

For the forgoing reasons I find the accused not guilty of willful murder and of murder.

There then remains the question of whether he is guilty of manslaughter. This to me can permit of only one answer. The accused was in possession of a loaded gun which he knew to be loaded and consequently dangerous. I do not think that I need spend any time on analyzing the situation any further than I have already done. He was clearly negligent and grossly negligent in the handling and using of the weapon. Because of that gross negligence Mansted died. That his conduct was irrational and confused is not to the point. I am satisfied that he took the gun with some intention of scaring or frightening Mansted, a course of action which he should never have followed and once having embarked upon that course care was necessary. This care he debarred himself from using, and I must find him guilty of manslaughter.