Updates and background for this project (Digest)

APPENDIX A: TRANSCRIPT OF JUDGE’S SUMMATION

JUDGE’S SUMMATION: CROWN v KERR

Warm up (p 13-14)

[S1] Now, let me move from that to say something about the form of the indictment, which in its amended form, includes three counts against Mr Kerr, each expressed to be in the alternative. The charges are set out in a particular order. That is, the most serious first, that is, count 1, manslaughter, the next most serious next, count 2, affray, and then count 3, the railway charge, which is also a serious criminal offence, but less serious than counts 1 and 2. You should begin by considering the most serious, manslaughter, and if you were to find Mr Kerr guilty of that offence then that would be the end of the matter. Your verdict would be guilty when the count of manslaughter is read by my associate when you return to give your verdict. There would be no need for you to consider counts 2 and 3. Indeed, no verdict would be taken from you in respect of counts 2 and 3. So you consider the indictment down the indictment.

[S2] If, however, you were to find Mr Kerr not guilty of manslaughter, it would then be necessary for you to consider the second count of affray, and the same principles would apply. That is, if you found Mr Kerr guilty of affray when my associate read out that count, the second count, your verdict would be guilty. If, however, you were not satisfied as to that charge beyond reasonable doubt, as to the essential elements, it would then be necessary for you to consider count 3, the railway charge, and to reach a verdict in respect of that charge. You verdict, as I have said, must be unanimous.

[S3] Now, the fact that there are a number of counts, some more serious than others, is not an invitation, you would appreciate, to compromise. Indeed, were you to approach the matter upon the basis of compromise, then you would be failing in your duty. Suppose, for instance, that six of you thought that Mr Kerr were guilty of the first count and six of you thought that he was guilty of nothing at all, not guilty. Then it would be quite wrong, you would appreciate, for you to compromise and say: Well, we will find him guilty of counts 2 or 3 unanimously. It is not a question of compromise. It is a question of you unanimously being satisfied, if you are, that the Crown has proved its case and, if not, then that you believe the accused is not guilty, because the Crown has failed to satisfy you beyond reasonable doubt in respect of that case.

Excerpt 1: Tuesday 4 November 2003 (p 14-27)

[S4] Let me move from that to the first count in the indictment, that of manslaughter, and in order to explain the elements of the charge, and what the Crown must prove to establish manslaughter, it may assist if I very briefly, and I hope I do not confuse you, say a word about murder and the contrast between murder and manslaughter. You would appreciate, of course, there is no question in this trial of murder.

[S5] Broadly, to prove murder the Crown must establish two things. The first is that the death of the victim was caused by the acts of the accused, and the second is they must prove that in carrying out those acts the accused person had a particular state of mind, that is, he intended to kill the victim or he intended to cause that victim very serious bodily injury, what is called by the lawyers grievous bodily harm. So that involves reaching into the mind of an accused person, and by reference to his words and actions, drawing inferences as to what he intended when he acted in a particular way that is said he acted, did he intend to kill the victim or did he intend to cause that victim very serious bodily injury, grievous bodily harm.

[S6] Now, this is quite different to the issue that arises in manslaughter. Manslaughter is an unlawful killing falling short of murder. The criminal culpability attaching to manslaughter is less than murder, although it is still a very serious criminal offence. The difference in very broad terms is that you judge whatever are the actions of the accused, not according to what he intended, that is, his subjective state of mind, but rather his words and actions are examined from an objective viewpoint. The measure of responsibility is that of a reasonable person in his position getting off the train at Redfern; what such a person would have appreciated in the circumstances.

[S7] I will come to the precise issues which you must address in a moment. At this point let me distribute the written directions which you will have with you in this trial which will be marked for identification 10. There is a copy for each of you.

Copies of mfi 10 handed to jury

[S8] What I want to do is introduce you to this document, take you through the various pages, simply to identify what it deals with, and then I will return to the first page and systematically work my way through the document explaining various aspects of it. But you will see that on the first page there is a reference there to count 1, and the heading “Manslaughter by an Unlawful and Dangerous Act”. You will see the three matters 1, 2, 3 that the Crown must prove beyond reasonable doubt. In fact there are four matters because the third matter you will see in fact involves two sub-elements. So there are four matters, and I will return to each of these concepts in a moment.

[S9] If you pass over to the second page, you will see there is a heading “Notes re Manslaughter by an Unlawful and Dangerous Act” and then there is a phrase “did cause the death”. That is a phrase which is taken from the words in the indictment for count 1. So you will see, if you pass to the next page, that is, page 3, that there is a reference there to “unlawful act” and “dangerous act” and various definitions are given. So this is like a glossary of terms and I will come back to each aspect in a moment.

[S10] If you pass then to the fourth page you will see that it is headed “Alternative (Count 2): Affray”, and it deals with the second charge brought by the Crown against Mr Kerr in the alternative which has been referred to as affray, count 2, and the elements of that charge are there set out, three in number.

[S11] If you turn the page to page 5 you will see the heading “Further Alternative (Count 3): Railway Charge”, and again the format is the same. It sets out the elements of the railway charge and what the Crown must prove beyond reasonable doubt.

[S12] So they are the written directions. Let me return to the first page where you will see the elements of the first count which the Crown brings against Mr Kerr, that is, the count of manslaughter by an unlawful and dangerous act. Let me draw your attention at once to the introductory words that appear at the very top of that box because they are important. You will see these words: “Before you can convict the accused of manslaughter by an unlawful and dangerous act, you must be satisfied beyond reasonable doubt”.

[S13] That is simply a reminder, first that it is the Crown that has the onus or the burden of proof. It brings the charges. It must prove them. Then the other matter it reminds you of is the standard of proof, the very heavy standard, that is, beyond reasonable doubt.

[S14] Let me go to the elements, and you will see that the first element is “that William Christopher Harris died”. There is, of course, no issue that Mr Harris died at the Redfern railway station at 12.49pm on 27 October 2002, having received multiple injuries after having been struck by a train. Indeed, that is an agreed fact in exhibit O, I think it is the first agreed fact. So clearly element 1 will occasion you no difficulty.

[S15] Let me move at once to element 2. You will see it there: “2: That his death was caused by the deliberate attack or attacks of the accused”, and deliberate in this context simply means voluntarily or willed as opposed to something that may happen by mistake or accident or something that is a reflex action, something that is not willed. It is not being suggested by Mr Button on behalf of Mr Kerr that the actions of his client were not deliberate in that sense, but it is a matter in respect of which you must be satisfied beyond reasonable doubt.

[S16] Now, this second element, I should say, really involves two questions, and indeed, both questions are important, you may think fundamental, to this trial. The first concerns the actions of Mr Kerr. Exactly what did he do or say? What were his acts? And the second issue is concerned with causation. Whatever Mr Kerr may have said or done, can it be said that that caused the death of William Christopher Harris?

[S17] In respect of the first issue, that is, the factual issue, what Mr Kerr did, I will later in this summing up remind you very briefly of what various witnesses have said, and of course you have the video and the photographic record in exhibit B of the surveillance camera on Redfern station at that time. You may think, having heard the addresses of counsel, that there really is not very much dispute at all as to what actually happened, and that the areas of dispute on the facts really are very limited.

[S18] I will go to the detail later, but the following appears to be more or less common ground. That is, that Mr Harris and the accused were perfect strangers to each other; that Mr Harris was sitting at the end of platform 7, that is, on the last seat, not at the very end of the platform, you have exhibit A, waiting for his train which was due to come in on platform 6; that a train arrived on platform 7 and Mr Kerr got off somewhere near the deceased. There is some controversy about where precisely that was, but somewhere in that general locale. That the accused then addressed Mr Harris saying, and probably repeating, words such as, “What the fuck are you looking at”, or “What the fuck are you staring at”, and that he then approached Mr Harris and was physically restrained by one or other or both women, and that he at some stage broke free or to some extent escaped from these women to be grabbed again and there were a number of lurching type actions which you can see on the video. That, according to all but one witness, there was no physical contact between the deceased and the accused. The Crown said to you that it is not part of the Crown case that there was physical contact. That the distance which separated these two or the groups was put by some witnesses as two metres, others as 10 and others somewhere in between. Mr Button, I think, urged Mr Mikulic as perhaps the most reliable, who put it between four and eight. Mr Harris did not respond in any way or say anything. Rather he simply got up, moved to his right, circled, as it were, the seat, headed at a reasonable pace towards the edge of the platform and then jumped on to the track.

[S19] There are some differences between witnesses as to how he got down, but he apparently looked up towards the north, towards the city, the direction from which he was expecting his own train. There are differences as to what precisely he then did, which way he was facing at various times, whether at some stage he was facing towards the group, including the accused, on platform 6 and 7. That, at some point, whilst he is on the tracks, the woman on the platform yelled out “train”, they having seen the train approaching on the track leading to platform 5, and I think it is common ground that shortly after they yelled out the train gave a blast, a country blast on its horn, and at this point the suggestion is that Mr Harris quickened his pace and that brought him into the path of the train, that he endeavoured to get on to the platform and to some degree was able physically to make contact with that platform, as shown in those photographs, exhibit F, from memory, but ultimately then came into contact with the train and was killed. That this entire episode on any view happened very quickly, and you can calculate the time by looking at the times recorded on those successive stills that are taken from the video footage. For instance, photograph number 3, by which time the train is in and people are getting off, you may think Mr Kerr and his group is getting off, photograph 3 is at 12.45 and 37 seconds, and then at 12.46 and 5 seconds is Exhibit E, the one with his hands on the platform, a split second before the train hit him. That, on my calculations, but do not trust my mathematics, is roughly about 28 seconds about half a minute.

[S20] You will recognise broadly that that is the context within which the first issue must be determined, that is, the factual issue, what is it exactly that Mr Kerr did, what were the words and actions that can be attributed to him, as to which you are satisfied.

[S21] Now, let me say something about the second issue, which is also an important, indeed a fundamental, issue in this trial arising from within element 2, and that is the question of causation. Now, the concept of cause and effect is something with which you are all familiar. In our everyday lives one examines events in order to understand why they occur. Did one event lead to another? Can it be said that one event caused the other? Is one event the effect of some cause or causes? The surrounding circumstances are examined to determine whether the end result can be attributed to a particular cause.

[S22] The approach of the law is no different. Sometimes lawyers refer to the chain of causation when one event can be linked to another, as in a chain, cause and effect. Here you are required to apply your common sense to the conjunction of events and determine whether one thing caused another, bearing in mind, of course, that you are attributing legal responsibility in a criminal matter, so your inquiry is plainly a serious matter and caution is called for.

[S23] Now, issues of causation, I might say, although not causation leading to death, also arise in the context of the other alternative charges, that is, counts 2 and 3, and I will deal with those charges later. But simply to illustrate that they do involve questions of causation, if you perhaps turn to the second count, affray, page 4 in the written directions, and if you look at element 3 you will see “that the acts and words of the accused were such as would cause a person of reasonable firmness”, so there are questions of causation, so again you will be required to consider issues of cause and effect and you will approach those in the same non-technical common sense way, but bearing in mind that you are attributing legal responsibility in a criminal matter.

[S24] Similarly on page 5, the third charge, the railway charge, you will see element 3 includes the words, “that the accused thereby endangered”, so again it is these acts that are said to have thereby endangered, to have caused this effect, and you will be obliged to consider that issue in the context of those directions.

[S25] But returning to count one, that is the count dealing with manslaughter, an event may have a number of causes. The Crown is not obliged to prove beyond reasonable doubt that the conduct of the accused was the only cause leading to death; for instance, the action of the train was plainly one of the causes and indeed the immediate cause of death. So what does “cause” mean in this context? The test is whether or not the act or the acts of the accused significantly or substantially contributed to the death of the deceased. So that even if you were to find that the deceased himself, by his actions, contributed to his own death, it would not follow that the accused cannot be convicted. The question in that circumstance would be, notwithstanding the contribution to his own death made by the deceased himself: Can it be said that the Crown has established to your satisfaction beyond reasonable doubt that the conduct of the accused significantly or substantially contributed to the death of the deceased?

[S26] Now, in some cases of manslaughter, the issue of causation is straightforward; someone punches someone, someone falls over, they crack their head, and they die. There are not the same complexities that arise in the context of this case. Here the issue of causation is more complicated because it involves the reaction of Mr Harris to the conduct of the accused. Where the conduct of an accused induces in the victim a well-founded apprehension of physical harm, such that it is reasonable for the victim to seek to escape, then the fact that death occurs in the course of that escape does not break the chain of causation, provided that the Crown satisfies you beyond reasonable doubt that the response of the victim, in this case the deceased, was reasonable or proportionate, having regard to the nature of the conduct of the accused and the fear that that is likely to have provoked.

[S27] So that requires you to address a number of issues. First, what was this conduct of the accused? What did he do or say? Second, did it induce in Mr Harris a well-founded apprehension of physical harm such that it was reasonable for him to escape? So that is an objective inquiry. Looking at the actions objectively. Third, if so, was the response of Mr Harris reasonable or proportionate having regard to the conduct of the accused and the fear it is likely to have provoked?

[S28] In determining whether the response of the deceased was reasonable or proportionate, you should take into account all the circumstances, including the speed with which events unfolded, the way in which a person fearful for their own safety, and forced to react on the spur of the moment, may react. In other words, it is not an armchair inquiry with all the wisdom of hindsight and no limits as to time. You should have regard to the pressure of events as they unfold.

[S29] It is for the Crown to establish beyond reasonable doubt that the acts of Mr Kerr caused the death of Mr Harris. The Crown must therefore satisfy you beyond reasonable doubt that the response of Mr Harris was in the circumstances reasonable and proportionate, having regard to the nature of the conduct of the accused and the fear that is likely to have provoked. If you are not satisfied, then you must acquit the accused of the charge of manslaughter.

[S30] When I use the phrase “reasonable or proportionate”, I am not seeking to draw a distinction between those two words. That is simply the formula that is traditionally used, but it embodies essentially the one concept; that is, the concept of reasonableness. It is an objective test. It is looking at the flow of events, the conduct of Mr Kerr, the response of Mr Harris, and asking is the latter a reasonable and proportionate response to the former such that the former can be said to be a cause. If it was not reasonable or proportionate, then there was a break in the chain of causation.

[S31] So that you can see from the statement that the issue does not depend upon Mr Kerr’s view as to what he thought Mr Harris might do. It is an objective view; not does it depend upon the character of the deceased. It is an objective view based upon what the deceased did in response to the threat made to him, if you find that there was such a threat.

[S32] The character of the accused, as to which there has been a deal of evidence, is not relevant to that issue; that is, the issue of whether the response was reasonable or proportionate. So you may ask: Well, what is the relevance of the evidence concerning the character of the accused? It seems to be common ground that the deceased was of a particular character, that is, a person who was non-confrontational. That evidence is relevant as to the issue of what the accused in fact did, what were the act or acts of the accused.

[S33] When you are judging the accused’s behaviour towards Mr Harris, and exactly how bad it was, if it was bad, you may take into account the personality or character of the deceased, Mr Harris. Did Mr Harris get up and seek to escape because the conduct of the accused gave him a well-founded apprehension of physical harm such that it was reasonable for him to escape, or did he get up, not because the character of what the accused did was so bad, but because of his particular personality and his desire to avoid confrontation? So that that is the way in which that evidence as to the actual emotional character of the deceased, if you like, may be relevant.

[S34] I suppose the physical character of the deceased may be relevant, that is to say the fact that he was 44, apparently able-bodied, to the issue of causation, that is, whether what he did was reasonable or proportionate, because, in determining whether what he did was reasonable or proportionate, then one may have regard to the physical character of the person. If a one-legged person endeavoured to act in a particular way, that may be one thing. If a person is able-bodied that may be another. So to that limited degree the physical attributes of the deceased may be relevant to that issue, but the actual character, in the traditional sense of that word, the non-confrontational aspect of his character, which appears to be common ground, that aspect really is only relevant to your assessment of what the accused actually did, in assessing that behaviour, and whether or not what Mr Harris did was a response to his own particular character or a response to the particular acts of the accused because of their intrinsic nature; that is, that they gave rise to a well-founded apprehension of physical harm such that it would be reasonable for a person in that circumstance to escape.

[S35] Members of the jury, it is almost lunch and that is probably a reasonable moment to break, so we will resume at 2 o’clock or shortly after. I will send out the videos with you.

Excerpt 2: Thursday 6 November 2003 (p 99-107)

[S36] Good morning, members of the jury. At the end of yesterday you provided the note which has been marked for identification 11, and just to remind you of the terms of that note I will read it out to you and then endeavour to provide an answer. The note really is in three parts, and it is in these terms, the first part as follows: “Can Your Honour expand on the definitions of ‘reasonable, proportionate’ in your directions on page 2?”.

[S37] That is a reference, of course, to the written directions which you have, and the topic “Did cause of death”. The second part of the note is in these terms: “Do the remarks about ‘the victim’ relate to Mr Harris in particular or victims or persons in general?”

[S38] And the third part of the note is: “Are the remarks about ‘a person fearful for his own safety’ to be considered only in terms of Mr Harris’s actions, or the actions of a ‘reasonable person’?”

[S39] And there is reference to that paragraph, paragraph 5, on page 2. They are the three questions, and if I could take them out of order and postpone for the moment the answer to question one, which is dealing with reasonable and proportionate, and if I could turn rather to the second question which I will read again so you have it in the forefront of your minds: “Do the remarks about ‘the victim’ relate to Mr Harris in particular or victims or persons in general?”

[S40] I will have my associate, just in case you do not have a copy, provide you with a photocopy of your own note just to remind yourselves of what exactly it is that you asked.

[S41] The short answer to that question, which is directed to that middle paragraph of page 2 where it talks about inducing the victim and so on, and I will come back to it in detail in a moment, the short answer is that the reference in that paragraph to the accused is a reference to Mr Rodney Kerr, the accused; the reference to the victim is a reference to Mr William Christopher Harris, the deceased.

[S42] Let me elaborate upon that answer just to make it clear what is meant. And what the nature of the test is that you must apply. To do that, I think it is beneficial if I read it again, so you have it in your minds, what the written directions say on the issue of causation, and I will just read through it. I know you have probably read through it half a dozen if not more times already, but on page 2 under the heading “Did cause death” these words appear, and you might follow them with me: “The Crown must prove beyond reasonable doubt that the act or acts of the accused caused the death of the deceased. You should approach the question of causation in a common sense non-technical way, appreciating that you are determining criminal responsibility for serious criminal offences. The test is whether the act or acts of the accused significantly or substantially contributed to the death of the deceased.”

[S43] There then appears the paragraph which is the subject of your question two: “Where the conduct of the accused induces in the victim a well-founded apprehension of physical harm, such that it was reasonable for the victim to seek to escape, then the fact that the death occurs in the course of that escape does not break the chain of causation, provided the response of the victim was reasonable or proportionate having regard to the nature of the conduct of the accused, and the fear it is likely to have provoked.”

[S44] I think it is probably worthwhile to keep reading, but I will come back to that paragraph in a moment in detail. Just to have it in context, you will see the next paragraph is as follows: “In determining whether the response of the deceased is reasonable or proportionate, you should take account of all the circumstances, including the way in which a person, fearful for his own safety, and forced to react on the spur of the moment, may react. It is for the Crown to prove beyond reasonable doubt that the response of the deceased was reasonable or proportionate having regard to the nature of the conduct of the accused, and the fear it is likely to have provoked. If you are not so satisfied, the accused must be acquitted of manslaughter. Your verdict would be ‘not guilty’ to count 1.”

[S45] So they are the written directions in respect of that aspect, causation. Returning to that middle paragraph on page 2 which speaks of the victim, I should say just by way of explanation as to how the word “victim” came to appear in these directions, that that particular paragraph has been lifted from a case which has been decided in these courts, indeed in the High Court of Australia, which is the highest appellate court in this country, and that is why it is expressed in those terms. It has simply literally been lifted from that case as the comments of the particular Court in that case where they were laying down a general rule, a general test, to be applied in all cases where the issue arises, and that is why it talks about victim and the accused; but you should understand that that case is meant to apply, in the context of this case, that is, the victim allegedly being Mr Harris and the accused being Mr Kerr.

[S46] Analysing that paragraph, that middle paragraph speaking of the victim, you will see that it gives rise to a number of separate issues, and I think an analysis of that paragraph might clarify the way in which you should go about your task. The first issue is: What did the accused do? What did he do or say? I do not think it is in the least controversial, having heard counsel’s addresses, although this is a comment from me, to say that whatever he did appeared on the evidence to be directed at Mr Harris, and Mr Harris is, in the context of those actions of the accused, the victim. So that is the first thing, you have to make up your mind as to exactly what he did. What exactly was it that he said and did, and that is really the first issue, and that is the bedrock of whatever inquiry you make which affects other issues further down the track.

[S47] The second issue is whatever he did, did it give rise to a well-founded apprehension of physical harm? In other words, was it reasonable that Mr Harris should have been fearful of physical harm at the hands of Mr Kerr? That is an objective matter, not a subjective matter. Let me explain what I mean by that. It does not depend upon the reaction of Mr Harris, the determination of that issue. That is, whether personally he was in fear; rather, it is a matter for you to determine whether objectively a reasonable person in his position would have been in fear having regard to what you find were the acts of Mr Kerr directed at Mr Harris.

[S48] That is not to say that Mr Harris’s reaction to whatever happened on the station at Redfern is irrelevant to your determination, but it does not conclude the matter. It is not determinative, it does not determine the outcome. You must stand back, having determined in your own mind what you believe Mr Kerr did or said on that platform, and say to yourself: Well, was it reasonable that a person confronted by that in that situation, that geographical situation, that end of the platform, that time of the day, that situation, was it reasonable that a person confronted by those actions, words and actions, should have been apprehensive of physical harm, should have had, to use the phrase which appears in that middle paragraph, a well-founded apprehension of physical harm. So that is the second issue.

[S49] The first issue is what Mr Kerr did. The second issue is whatever he did. Did that give rise to a well-founded apprehension of fear of physical harm. Then you get to the third issue, which is a related issue, and it comes from the phrase which you will see in that paragraph “such that it was reasonable for the victim”, that is Mr Harris, “to seek escape”. Again, that is an objective matter, and it depends upon reasonableness. Was it reasonable for a person in the position of Mr Harris, having been confronted by that conduct, having felt that fear of physical harm, to seek to escape? That is the next issue, the third issue, being reasonableness and escaping.

[S50] The fourth issue assumes to some extent that you answered the question: Well, that is what he did, that is the fear he felt, yes or no it was reasonable. If you felt it was not reasonable for him to want to escape, then that would be the end of that, but if you believed it was reasonable for him in that circumstance to seek to escape then you come to the fourth issue. This is the issue which concerns the mode of escape. We know the mode of escape chosen by Mr Harris was to cross the tracks to safety on platform 5. We know that in doing that he met his death. But what the Crown must prove beyond reasonable doubt is that the death was caused by the conduct of the accused, and what that paragraph in the middle which is the subject of your questions says, there will be a break in the chain of causation, unless the Crown satisfies you beyond reasonable doubt that the response of Mr Harris in choosing to cross the tracks to the safety of platform 5 was reasonable or proportionate, having regard to the conduct of the accused and the fear it is likely to have induced, so you are going back to the conduct of the accused and the fear it is likely to have induced.

[S51] Again, that is an objective inquiry. It is a question of reasonableness. It is a question of your view as to whether that was reasonable or proportionate for him to do, he having chosen to escape. It is a matter for your judgment as to whether that was reasonable or proportionate, having regard to the conduct of the accused and the fear that it induced.

[S52] In making that determination, you may have regard to the context in which this is all happening; that is, the circumstances in which it all took place, including the speed with which the events were unfolding, the geographical location, and the fact that a person who is fearful for their own safety is forced under pressure of events, or may be – it is a matter for you to determine these issues because these are issues of fact – to make a decision and then to react.

[S53] This is what the next paragraph in the directions you may think is driving at. You will see it in these terms: “In determining whether the response of the deceased is reasonable or proportionate, you should take into account all of the circumstances, including the way in which a person, fearful of his own safety, and forced to react on the spur of the moment, may react.”

[S54] That is simply a paragraph which is really a warning against what might be termed an armchair inquiry, that is, with all the wisdom of hindsight and no limits as to time to examine these events. You must when you do make your examination and you do make your determination as to whether you are satisfied beyond reasonable doubt that what Mr Harris did was reasonable or proportionate, have regard to such pressure, if any, as you believe existed in the events as they were unfolding and how people may react in those circumstances.

[S55] I think that probably that may answer not only question two but also question three, but I will read question three as well because it is directed to that last paragraph. Question three of your questions was in these terms: “Are the remarks about ‘a person fearful for his own safety’ to be considered only in terms of Mr Harris’s actions, or the actions of a ‘reasonable person’?”

[S56] The answer really is that what you are examining is Mr Harris’s actions, but you are applying an objective test, that is, essentially the test of reasonableness. Has the Crown satisfied you beyond reasonable doubt that what he did in escaping was reasonable or proportionate, having regard to what the accused did and the fear that that is likely to have induced?

[S57] Let me pass from that to the first questions that you asked. The first question is in these terms: “Can Your Honour expand on the definitions of ‘reasonable’, ‘proportionate’ in your directions on page 2?”

[S58] Again, members of the jury, I might tell you that that phrase “reasonable or proportionate” has been lifted from a decided case, and that is the test which the highest appellate court in this country has laid down as the test to be applied by juries such as yourselves in the situation which confronts you. Remember what I said in the course of the summing-up, and that is: It is not suggested that there is any distinction between those two words, reasonable or proportionate. They are embodying essentially the same concept which is a concept of reasonableness.

[S59] The task which is given to you as the representatives of the community, as the jury in this trial, is to give those words “reasonable or proportionate” meaning in the context of this case. So it is for you give them meaning and for you to determine the yardstick which should be applied as reasonable or proportionate in the context of a particular situation that confronts you. If I were to elaborate upon what “reasonable or proportionate” means, then I may in my elaboration simply add other words, and those other words may subtract or add to the test which the courts have determined is the test that you must apply.

[S60] So I hope that answer is not unhelpful, but I am afraid it is for you as representatives of the community to apply your own common sense and community standards in the context of which confronts you in this case and determine whether you are satisfied beyond reasonable doubt that what Mr Harris did in the situation that confronted him was reasonable or proportionate, having regard to what the accused did directed towards him and the fear that is likely to have engendered.

[S61] I think that really completes the answer I would propose to give to your question.